United States v. Shaun Joseph Ruff

judgment Mercy' to Mount on summary claims, the of contract consent its breach enforced.

judgment should III. CONCLUSION reasons, foregoing

For the we affirm the denial of Dr. Altimore’s mo- district court’s entry summary tion to remand and its Mercy’s in Mount favor. judgment America, UNITED STATES of Appellee, Joseph RUFF, Appellant. Shaun

No. 04-3146. of Appeals, Court Eighth Circuit. Submitted: Feb. 2005. Aug. Filed: Scheetz,

Raphael argued, Rap- M. Cedar ids, IA, appellant. Baumann, AUSA,

Teresa K. argued, Ce- IA, Rapids, dar for appellee. LOKEN,

Before Judge, Chief RILEY SMITH, Circuit Judges. RILEY, Judge. Circuit (Ruff) Joseph

Shaun pled guilty to conspiring to distribute grams or more marijuana, of cocaine and violation of 841(a)(1), §§ 841(b)(1)(B), 841(b)(1)(D),and 846. Under the terms of money currency upon from Ruff arrest. buy seized for the controlled restitution plea agreement, In the Ruff investiga- “reserve[d] during the narcotics expended right request the to that the value of to agreed tion. Ruff the also (Blazer) property applied forfeited toward the and Blazer his 1995 Chevrolet The outstanding restitution amount.” arrest. person upon from his items seized right reserved to resist the At the district court sentenced sentencing, request. the offset five Ruff months’ imprisonment, to 65 release, and ordered years’ supervised sentencing, Ruff notified the Before of Ruff amount pay to restitution United States Probation Office he intended $9,985. rejected Ruffs The district court request to the value of the forfeited cash argument proceeds net realized $9,985 Blazer be and credited should be property the forfeiture of his to of restitution owed the Iowa Division appeals, Ruff applied restitution. toward (DNE). gov- Narcotics Enforcement The further and and remand for we reverse request, arguing ernment resisted Ruffs request a to a thief “such tantamount money robbery he a using during stole I. BACKGROUND of pay restitution the victims his At sentencing, crime.” the district court De- July On and six occasions between request denied Ruffs to offset the value of 2002, varying quantities Ruff sold cember currency against the forfeited Blazer and cocaine a confidential marijuana of and the re- denying the restitution order. police to undercover offi- informant and quest, the district court declared: cers. Ruff drove his to each of Blazer drug expended Law enforcement in the agreed sales. make restitution [Ruff] $9,985 money $9,985.... buy total in controlled also note amount would drug the six transactions. On are effectuate that forfeiture two 12, issues, Ruff an undercov- after told different and I find that restitu- December agent grams er he would sell him 488.23 over and the forfeiture of tion is above $14,400, Ruff price money property cocaine at the1 he $1,476 to, in currency, person- pay he agreed arrested with so will have marijuana, al and a brass out of funds or use amount some other he’s on su- smoking pipe. period over a time while pervision. signed a September Ruff appeals, arguing Ruff he is entitled to com- plea which he admitted agreement real- offense, offset charged drug agreed mitting the Blazer and from the forfeiture of his restitution, ized as “to ordered pay currency. Court, buy money expended for controlled investigation,” during II. DISCUSSION Blazer, as

the forfeiture of his as well whether, under the Man his and resi- The issue person items seized from Act of datory The Restitution plea agreement arrest. Victims dence 3663A-3664, a (MVRA), §§ dis paid to stipulated restitution would “be a restitution may court must or offset for eventual disburse- trict Clerk Court prop the value a defendant’s of Narcotics ment to the Iowa Division 2003, subject to forfeiture is erty administrative Enforcement.” November novo re subject of law to de government completed question its $1,476 See, Bright, e.g., view. forfeiture action (9th Cir.2004); buys, DNE on controlled which 353 F.3d Alalade, $9,985.1 parties stipulated 204 F.3d amounted States v. In his remains, however, question whether “to restitution ... expressly agreed is entitled offset the restitution money during buy for controlled by assessment the received from a requires MVRA investigation.” the the administrative forfeiture “order, by if to agreed parties the court to Several circuits have discussed whether persons restitution to in a provides pay MVRA restitution of the the victim offense.” 18 than other ments to be offset amounts forfeit 3663A(a)(3). circuit § Our has held government. Bright, to See agreement pay to the resti “a defendant’s (declaring at 1122 “it F.3d is clear from court orders that a district is bind tution language plain of the statute that the Lester, ing.” States 200 F.3d United required district court in the first 1179, 1179 Bright’s instance to set the amount of res obligation

titution based on his victims’ ordering pursuant restitution regard collective losses without to for MVRA, Alalade, a court funds”); district must order feited at F.3d considering restitution in full without (declaring plain language of “did MVRA circumstances. grant defendant’s economic See not the district court discretion to 3664(f)(1)(A). required § not reduce the amount of restitution 18 U.S.C. does restitution, by to be ordered object equal to the paying but contends property value of the seized from Alalade any proceeds he is entitled offset law government and retained in admin enforcement derived the forfeited forfeiture”); istrative United States v. property, which have been remitted (1st Leon-Delfis, 203 F.3d Cir. Department Justice’s Asset Forfeiture 2000) (declaring “language ... stat Although Fund. not spe MVRA does utes plain restitution is and al cifically relationship address the between discretion”); lows the district court no funds, restitution and forfeited the MVRA Emerson, 128 F.3d relationship does address the between res (7th Cir.1997) 566-67 (declaring sentencing titution and other sources funds. Sec statutory authority court has impose 3664(f)(1)(B) tion declares: “In no case forfeiture, both restitution and and there is shall the fact that a victim has received or legal authority no to offset one from the compensation is entitled to receive with other) (discussing United States v. Various respect any loss from insurance or Computers Computer Equip., & 82 F.3d determining other source be in considered (3d Cir.1996)). 582, 586-89 the amount of restitution.” 3664(f)(1)(B) added). § However, (emphasis Based in none of these cases was (wherein plea on the agreement payable to law enforcement restitution for agency; controlled nor did the courts rule “victim” buy money) plain language and the of this entitled to obtain double from a subsection, statutory we conclude the dis convicted defendant through forfeiture and required fact, Alalade, trict court was payments. order restitu in tion based noted, on the total funds the Iowa the Fourth Circuit “we need not raised, parties 1. The we do not make restitution to law enforcement for costs decide, whether, incurred, government qualifies issue in the absence of a as a "vic- plea agreement obligating 3663A(2). § a defendant tim” under 18 U.S.C. on, money in way damages any civil case.” decide, opinion no express and we Gaultier, Earlier, court’s calculation we Id. at 230-31. district effect under of a victim’s loss tan- pro full amount directed a district court reduce prop- victim receives when the the MVRA restitution order to credit to defendant’s Department of Jus- cash from the erty or amount recovered the victim of the in- program its remittance tice separate in a civil action. defendant’s fraud by the cash seized volving property or Gaultier, 727 at 716. F.2d holdings Our in Manzer and Gaultier Alalade, 204 with the case.” connection consistent with the later-enacted are Similarly, Bright, n. at 541 provision requiring “[a]ny amount MVRA off- not decide “[what] Ninth Circuit did paid to victim under order of restitu- be when defendant’s might sets due by any tion shall be reduced amount later and to the paid have been forfeited funds compensatory damages as for recovered F.3d at 1122-23. Bright, 353 victims.” in-(A) any same loss the victim case, law en In this Ruff contends (B) any civil and proceeding; Federal pro received or will receive forcement proceeding, pro- civil to the State extent forfeitures from ceeds by the of the State.” vided law Thus, currency. Blazer of the 3664(j)(2).2 plain language § its this By receive law enforcement stands to argues applies compensatory damages section actual it of the amount windfall excess by a proceeding a civil recovered victim buys, thereby con on controlled expended a court a restitution order. after enters recovery. impermissible double stituting Smith, F.Supp.2d v. See United States 297 theory, Ruff two of cites support this (D.D.C.2003). doubt, we Although legal pre-MVRA proposition cases for deciding, without recovered of are not that victims crime entitled proceedings from administrative forfeiture recovery the same loss. See for double damages” as under qualify “compensatory (8th Manzer, 69 F.3d United States statutes, we the restitution nonetheless Gaultier, Cir.1995); United States recovery against conclude bar double Manzer, this case operate in the context of should argued court erred the district defendant DNE recover- preclude the Iowa ordering restitution for conduct which agency than the ing greater an amount judgment. a civil also the basis for drug on in Ruffs buys controlled Manzer, recogniz 69 F.3d at 230. While forfeited (ruling See id. when funds case. re are not entitled double ing victims government have been returned to the covery for the loss both same victim, they against the must be offset civil we judgment, order and a otherwise, due; failed concluded the defendant to establish recovery). be there would excess restitution order would enforcement which noted, stipulate The MVRA does recovery. in a Id. We result double proving entitle- bears the burden however, party “at the time of enforcement bears government to an The order, ment offset. free to of the restitution Manzer is loss, and the victim’s prove the burden present preclude evidence to prove the burden to the defendant bears in the criminal case way of restitution other and needs. On already by financial resources compensated conduct the same 3664.” 18 accordance with section order under section An MVRA restitution 3663A(d). § expressly "issued enforced 3663A matters, garding any “shall restitution offset. burden Ruffs sen- justice tence is otherwise affirmed. party designated by the court as 3664(e). § At sen- requires.” 18 U.S.C. LOKEN, Judge, concurring. Circuit tencing, attempted en- establish join opinion of the court. I forcement of the court’s restitution order write separately disturbing note a violation recovei'y in a to law would result double Attorney’s law office. Agent enforcement. Ruffs counsel asked Schroeder) (Agent Steve of the Schroeder August the district court Bear wheth- Creek Narcotics Task Force in a Judgment entered its Criminal Case sold, Agent had er Ruffs Blazer been im- Judgment Shaun Ruff. responded Schroeder he was “unaware $9,985 posed obligation at right now.” about the status vehicle appeal; on pay- issue the court waived the argument Following appeal, oral on ment interest on that amount it because pursuant a letter submitted determined that Ruff does not 28(j) of Ap- Rule Federal Rules ability to pay interest. The Schedule pellate explaining the for- Procedure how Payments Judgment section of the then The gov- feiture funds were allocated. provided special the following instructions 28(j) ernment’s Rule includes submission payment of restitution: copies equitable sharing of two memoran- incarcerated, While the defendant shall copies da and two United Trea- monthly make in payments accordance sury not checks. This evidence was of- with the Bureau of Prison’s Financial fered at sentencing hearing refute Responsibility Program. recovery, theory Ruffs of double even monthly payments shall not exceed though knew Ruff intend- 50% the funds available to the defen- request the district court offset the dant or institution non-institu- order law en- (community) tion resources and shall forcement received from the administra- quarter. less than per be $25 tive forfeiture 1, 2004, September a “Paralegal Spe- Attorney’s cialist” the U.S. office wrote consider,

We in- decline to the first for Ruff demanding “payment counsel stance, explanation proffered sup- full” thirty restitution amount within porting documentary The duty evidence. That days. flagrant demand was viola- evidentiary hear and determine issues Judgment. tion of the court’s On Decem- appropriately most rests in the district ber Attorney Assistant U.S. court. If Ruff can establish the Iowa sent counsel for Ruff a “Notice of Default funds, DNE received Payment” and Demand for advising that district modify court shall the restitution payment the demand for in full “has now order prevent recovery by double delinquent days,” been more than 90 Manzer, Iowa DNE. at 230. See purporting to penalties assess 25% totaling obligation pursuant III. CONCLUSION § 3612(g). The Assistant At- U.S. We torney reverse and remand for restitution should known that the de- proceedings opinion. consistent with for payment this mand appeared to be unlawful If Ruff face, he can excess statutory believes establish on its which case the DNE, by the Iowa penalties lawfully he bears the could not be assessed. addition, burden to initiate further proceedings re- it appears the earlier 3612(d) §by mandated notice delinquency court urge the district sent.

was never disregard apparent investigate this office Attorney’s by the U.S. the law necessary may action to take whatever that have penalties any unlawful nullify assessed. been America, STATES UNITED Appellee, LONDONDIO, Appellant. Esequicio America, Appellee, Gonzalez-Rodriguez, Alberto Carlos Appellant. America, Appellee, States United v. Jaramillo, Appellant. Pablo America, Appellee, United States Palacio, Appellant. Fernando Juan America, Appellee, Alcanfora, Appellant. Nahum 04-3582, 04-3579, 04-3580, Nos. and 04-3585. 04-3584 Appeals, Court of Eighth Circuit. June 2005. Submitted: Aug. Filed:

Case Details

Case Name: United States v. Shaun Joseph Ruff

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 24, 2005

Citation: 420 F.3d 772

Docket Number: 04-3146

Court Abbreviation: 8th Cir.