UNITED STATES of America, Plaintiff-Appellee, v. Tori K. COLLINS, Defendant-Appellant.
No. 15-12805
United States Court of Appeals, Eleventh Circuit.
(April 26, 2017)
854 F.3d 1324
We should not raise doubts about
IV. Conclusion
For the reasons explained above, I concur in the majority‘s judgment that Doran‘s conviction must be reversed.
Natasha Perdew Silas, Stephanie A. Kearns, Federal Defender Program, Inc., Atlanta, GA, for Defendant-Appellant.
Before MARTIN and JORDAN, Circuit Judges, and COOGLER,* District Judge.
JORDAN, Circuit Judge:
Tori Collins pled guilty to conspiracy to accept gratuities with the intent to be influenced or rewarded in connection with a bank transaction, in violation of
We affirm the district court‘s order of restitution. Ms. Collins facilitated bank transactions that proximately caused Wells Fargo‘s losses, and she intended to derive an unlawful benefit from the property that was the subject of these transactions. She therefore committed an “offense against property” as that phrase is understood in its ordinary and contemporary sense.
I
Ms. Collins worked as a personal banker at a Wells Fargo branch in Atlanta, Georgia. At some point in early 2013, a man named Gerald Mack visited the branch where Ms. Collins worked. Mr. Mack, who introduced himself as G. Shakir, told Ms. Collins that he had friends and clients who wished to open new bank accounts, so Ms. Collins gave him her business card for referrals. Mr. Mack‘s story was a lie. In reality, Mr. Mack was in possession of stolen U.S. Treasury checks. His plan was to cash the checks by depositing them in bank accounts and then withdraw the stolen funds, all with the help of bank employees.
Soon after they met, Mr. Mack and Ms. Collins developed a friendship, and he began to ask her to carry out various bank transactions. Although she knew that the transactions violated bank rules, Ms. Collins did as Mr. Mack requested. She opened accounts under the names of either fictitious persons or the intended recipients of the stolen U.S. Treasury checks. Sometimes she added the payees of the checks to preexisting accounts. She also deposited some of the stolen checks for Mr. Mack and, on the day of the deposits or sometime after, withdrew the stolen funds and took them to him. And she deposited and withdrew funds from accounts that had been opened by Brandon Kelly, another bank employee recruited by Mr. Mack. Once, Ms. Collins handed Mr. Mack the proceeds in the parking lot of the bank. In exchange for her help, Mr. Mack paid Ms. Collins $6,000 and gave her a pair of sneakers.
Because Mr. Mack was depositing stolen U.S. Treasury checks, Wells Fargo had to reimburse a number of the intended payees for their losses. All told, Wells Fargo lost $276,714.71 from the accounts that Ms. Collins opened or from which she facilitated withdrawals.
Ms. Collins pled guilty to a single charge of conspiracy in violation of
At Ms. Collins’ sentencing hearing, the district court addressed the applicability of the MVRA, which among other things requires restitution for an “offense against property.” See
II
The legality of the district court‘s restitution order is subject to plenary review. See United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008). The district court‘s underlying factual findings, on the other hand, are reviewed for clear error. See id. A federal district court has no inherent authority to order restitution, and may do so only as explicitly empowered by statute. See id.
III
The “primary and overarching purpose” of the MVRA, enacted in 1996, is to “make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original state of well-being.” United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006). When the MVRA applies, restitution is mandatory. See United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015). A defendant must pay restitution under the MVRA if she is convicted of a certain covered offense “in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.”
Ms. Collins argues that her conviction for conspiring to accept bank gratuities does not constitute an “offense against property” under the MVRA. First, she contends that the district court erred by examining the facts of her case, and urges us to adopt a “categorical approach” which considers only the elements of the offense of conviction. Under that approach, Ms. Collins says, mandatory restitution does not apply because none of the elements of her offense are “against property.” Second, Ms. Collins maintains that, even if we consider her underlying conduct, her receipt of cash gratuities was not an “offense
A
What, exactly, is an “offense against property” under the MVRA,
Although the Supreme Court has addressed some provisions of the MVRA, see, e.g., Robers v. United States, — U.S. —, 134 S.Ct. 1854, 1856, 188 L.Ed.2d 885 (2014) (analyzing
On the narrower end, some circuits have held that, at the very least, an “offense against property” includes criminal activity with the objective of knowingly and intentionally damaging property. An example is United States v. Quarrell, 310 F.3d 664, 678 (10th Cir. 2002) (holding that the defendants’ conviction for conspiring to violate the Archaeological Resources Protection Act qualified because, though “not every conspiracy will involve an offense against property,” the unlawful objective of the conspiracy at issue was to “illegally excavate public land,” in furtherance of which the defendants “knowingly and voluntarily... damaged the land“).
Other circuits dispense with the intent requirement, approving mandatory restitution whenever an offense results in physical harm to property. See, e.g., United States v. Sawyer, 825 F.3d 287, 292 (6th Cir. 2016) (holding that the defendant‘s conviction for conspiracy to violate the Clean Air Act, a scheme involving the improper demolition of buildings with asbestos-containing material, was an “offense against property” because it “resulted in the asbestos contamination of nearly 300 acres of land“); United States v. Brock-Davis, 504 F.3d 991, 993, 996-98 (9th Cir. 2007) (concluding that the MVRA provided statutory authority, in a case involving a conspiracy to manufacture methamphetamine, to order payment of restitution to “a motel owner for clean-up costs he incurred remediating a motel room in which the defendant had cooked methamphetamine“).
Some circuits, however, have ordered mandatory restitution in cases where there is no physical damage to property. The offenses in those cases have involved the intentional deprivation, or attempted deprivation, of another‘s property. See, e.g., United States v. Turner, 718 F.3d 226, 236 (3d Cir. 2013) (holding that a conspiracy to defraud the IRS was an “offense against property” because the defendant had deprived the government of its property, i.e., tax dollars). Cf. Robers, 134 S.Ct. at 1856 (though not directly addressing
As the wide range of opinions in these cases illustrates, we lack a conclusive definition. Without a binding directive, we now turn to the statute and apply ordinary rules of statutory construction.
B
Our construction of
We start with the rather unremarkable observation that “against” is not the same as “relating to” or “concerning.” See Webster‘s New World College Dictionary 26, 288, 1132 (3d ed. 1996). The latter two (and their synonyms) sweep much more broadly, and would encompass offenses with little more than some connection to property.
This distinction matters because, in the process of reading a statute, it is our “duty... to give effect, if possible, to every clause and word[,]... avoiding... any construction which implies that the legislature was ignorant of the meaning of the language it employed.” Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883). Indeed, we “must presume that a legislature says in a statute what it means.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). Had Congress intended
We believe that a more faithful reading respects the connotation of directedness engendered by “against.” See Webster‘s New World College Dictionary 26 (3d ed. 1996). Property, therefore, must serve as the object of the offense, not simply a collateral component. See Black‘s Law Dictionary 371 (6th ed. 1990) (defining “crime against property” as “a crime, the object of which is property as contrasted with person; e.g., larceny“). At its simplest, this understanding includes offenses in which the defendant intends to damage another‘s property, as was the case in Quarrell, 310 F.3d at 678. See Webster‘s New World College Dictionary 26 (3d ed. 1996) (defining “against,” in part, as “toward so as to press on or strike“). It also includes situations where the defendant seeks to derive an unlawful benefit from another‘s property or otherwise deprive a person of his property, therefore acting “in opposition to” or “contrary to” the classic property rights of ownership and possession. See id. (also defining “against” as “in opposition to; contrary to“). Under any of these readings, however, criminal conduct does not necessarily qualify as an “offense against property” solely because it results
In our view, the framework of
This construction further harmonizes
Significantly,
Excluding offenses with only incidental property loss is also more consistent with the common-law roots of the phrase “offense against property.” See, e.g., California v. Minjares, 443 U.S. 916, 927, 100 S.Ct. 9, 61 L.Ed.2d 892 (1979) (Rehnquist, J., dissenting) (describing “crimes against person and property” as “the traditional common-law crimes“). When Congress “uses a common-law term
At common law, offenses or crimes against property referred to a specific set of criminal conduct: “larceny, embezzlement, cheating, cheating by false pretenses, robbery, receiving stolen goods, malicious mischief, forgery, and uttering forged instruments.” Black‘s Law Dictionary 1251 (10th ed. 2014) (defining “offense against property“). Merely damaging or destroying property would not have met the definition for any of these offenses. For example, malicious mischief, the closest common-law offense for damaging another‘s property, required intentional destruction or damage. See id. at 1101. By borrowing from the annals of common law, Congress “presumably... adopt[ed] the cluster of ideas that were attached,” Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952), including the common-law understanding that an “offense against property” is not committed simply because criminal conduct occasions property loss.
The clause “including those committed by fraud or deceit” does not broaden the meaning of “offense against property.” Introduced by the illustrative “including,” the phrase refers to conduct that is a subset of “offense against property,” and not an independent covered offense under the MVRA. See Fed. Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100, 62 S.Ct. 1, 86 L.Ed. 65 (1941) (“[T]he term ‘including’ is not one of all-embracing definition, but connotes simply an illustrative application of the general principle.“). So, “those [offenses against property] committed by fraud or deceit” must still have property as their object to qualify. See
C
We next consider the analytical framework district courts should apply to determine whether an offense is against property for purposes of the MVRA. The parties advocate two different approaches. The one advocated by the government and applied by the district court considers the factual circumstances underlying the offense of conviction. The other, urged by Ms. Collins, is the categorical approach, in which courts limit their analysis to the elements of the offense of conviction.
Ms. Collins argues that in United States v. Keelan, 786 F.3d 865 (11th Cir. 2015), we held that the categorical approach governs the determination of whether a crime falls within one of the MVRA‘s enumerated categories. In our view, she overstates our holding in Keelan. The defendant in Keelan, who had been convicted of knowingly using means of interstate commerce to persuade a minor to engage in sexual activity, challenged the district court‘s order of restitution pursuant to
Here, however, the MVRA does not define “offense against property” by referring to another statute, and we have never considered whether to apply the categorical approach to determine whether an offense qualifies as an “offense against property” in any context. As a result, Keelan does not resolve whether sentencing courts must apply the categorical approach to determine whether an offense was an “offense against property” for purposes of
The text of
Unlike
Our decision today to eschew the categorical approach puts us in line with a number of decisions by our sister courts,
D
With a definition and analytical framework in hand, we now turn to the question of whether Ms. Collins committed an “offense against property.” In cases such as this one, where the conviction is for conspiracy, we focus on the offense that was the object of the unlawful scheme. See Singletary, 649 F.3d at 1220 (looking to the “objects of the conspiracy” to determine the applicability of the MVRA). The unlawful conduct here was that Ms. Collins, as an “employee... of a financial institution,” “corruptly accept[ed] or agree[d] to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution.” See
We have previously noted that there may be a question about whether bribery is an “offense against property” under the MVRA. See United States v. McNair, 605 F.3d 1152, 1221 n.107 (11th Cir. 2010). As with bribery, it is not readily apparent to us that a gratuities offense will always trigger mandatory restitution under the MVRA. For example, there may be situations where the government establishes criminal liability under
We need not address all variants of a gratuities offense because, in this case, the evidence demonstrates that Ms. Collins sought to derive an unlawful benefit from the property at play in the bank transactions she corruptly facilitated. Specifically, Ms. Collins admitted that she withdrew $69,000 from a bank account for Mr. Mack. See D.E. 25 at 42-44. At the time of the withdrawal, that money belonged to Wells Fargo. See Shaw v. United States, — U.S. —, 137 S.Ct. 462, 466, 196 L.Ed.2d 373 (2016) (explaining that a bank owns the deposited funds). By accepting Mr. Mack‘s cash payment in connection with transactions such as this one, Ms. Collins intentionally derived an unlawful pecuniary gain by taking property belonging to Wells Fargo, thereby making her gratuities offense an “offense against property.” Cf. Black‘s Law Dictionary 454 (10th ed. 2014) (defining “crime against property” as an “offense[] in which the perpetrator seeks to derive an unlawful benefit from... another‘s property without the use or threat of force“).
E
Almost as an afterthought, Ms. Collins contends that, to the extent she committed an “offense against property,” she did not proximately cause Wells Fargo‘s losses. She devotes most of her briefing on this issue to rehashing her arguments on the proper analytical approach. See Br. of Appellant at 19-21. When she finally gets around to the causation analysis, she argues, in one conclusory paragraph with no explanation, that Wells Fargo‘s losses stemmed from Mr. Mack‘s fraud and “perhaps from [her]... witting or unwitting assistance,” but not from her acceptance of gratuities. See id. at 21. Though her failure to fully brief this issue arguably constitutes abandonment, see Auto-Owners Ins. Co. v. Se. Floating Docks, Inc., 632 F.3d 1195, 1201 n.7 (11th Cir. 2011) (explaining that some “arguments... are so conclusory that they are deemed abandoned“), we address it anyway.
We have addressed proximate causation in the MVRA context before. In United States v. Washington, 434 F.3d 1265, 1266 (11th Cir. 2006), the defendant robbed a bank and fled. Several police cars were damaged in the ensuing chase. The district court ordered the defendant to pay the police department restitution for the property damage. See id. at 1266-68. On appeal, the defendant did not dispute that the MVRA applied to his bank robbery conviction, but he argued that his offense was not the proximate cause of the police department‘s property damage. See id. at 1268. We rejected this argument and affirmed the order of restitution because flight was a natural component of bank robbery and because the defendant could have foreseen that any ensuing high-speed chase would result in property damage. See id. at 1268-69.
Wells Fargo‘s losses here were even more foreseeable than the police department‘s in Washington, where at least the defendant could not have known with certainty that various police cars would be damaged. By contrast, Wells Fargo having to reimburse its customers for the fraud enabled by its own employee was the natural—if not inevitable—consequence of Ms. Collins’ actions. Moreover, Ms. Collins directly facilitated Mr. Mack‘s scheme by processing the withdrawals of the funds on his behalf. She even physically effectuated some of Wells Fargo‘s losses by walking money out the bank‘s doors, allaying any concern that those losses were “too [physically or temporally] attenuated.” See Robertson, 493 F.3d at 1334. Given Ms. Collins’ role as a bank employee, we do not believe that the district court clearly erred in finding that she could have reasonably foreseen Wells Fargo‘s losses.
IV
For these reasons, we affirm the district court‘s order of restitution under the MVRA.
AFFIRMED.
ADALBERTO JORDAN
UNITED STATES CIRCUIT JUDGE