UNITED STATES of America, Plaintiff-Appellee, v. Wayne Randell ANGLIAN, Defendant-Appellant.
No. 85-5381.
United States Court of Appeals, Sixth Circuit.
March 5, 1986.
Rehearing Denied April 17, 1986.
784 F.2d 765
Argued Jan. 9, 1986.
Louis DeFalaise, U.S. Atty., Lexington, Ky., R. Michael Murphy, Fred A. Stine (argued), for plaintiff-appellee.
Before MERRITT, JONES and NELSON, Circuit Judges.
NATHANIEL R. JONES, Circuit Judge.
The primary dispute on this appeal concerns the standards that govern an order of restitution for co-conspirators under the
I.
Section 3579 of the VWPA permits a trial court, as part of the sentencing process, to order that a convicted defendant “make restitution to any victim of the offense.”
shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant‘s dependents, and such other factors as the court deems appropriate.
Anglian was convicted of conspiracy and on two substantive counts of receipt of stolen postal money orders in violation of
The district court held a sentencing hearing for the seven convicted defendants at which restitution was ordered. The court first determined that, despite the fact that the indictment only specified approximately $8,000 of illegal transactions, a total of $15,903.36 was lost by the victims as a result of the offense. See
The court received evidence regarding and considered each defendant‘s financial resources and the earning ability of each defendant and the defendant‘s dependents. See
Anglian first asserts that the restitution order is improper because the two substantive counts on which he was indicted involved only $626.30 or, alternately, because the proof showed that all co-conspirators shared equally in the proceeds. Essentially, Anglian argues that restitution must be limited to the amount of benefit he received from the offense charged. Since the government proved only that he received $600 or, at most, a pro rata share of the whole, he can only be ordered to repay what he received.
It is true that, in the civil context, especially under the doctrine of unjust enrichment, restitution is sometimes measured by the benefit received. See Restatement (Second) of Restitution § 1 (Tent. Draft No. 1, 1983). We think it is unmistakable from the tenor of these statutes and from the legislative history, however, that Congress did not intend the term “restitution” as used in the VWPA to be so construed. To demonstrate this, it may be enough to note that the statute authorizes restitution to pay a victim‘s medical expenses, lost income, or funeral expenses in cases involving bodily injury or death. Clearly such restitution orders could bear no relation to the benefit a defendant might have received in causing such injuries. In a case involving only property losses, this court in Durham upheld restitution to a victim whose automobile was destroyed during the course of a bank robbery. 755 F.2d at 512-13. Again, such an order could not have been measured by the benefit received by the defendant. Other provisions show further that the purpose of restitution is to make the victim whole. See
The legislative history leads to the same conclusion. The Senate Report that accompanied this legislation stated:
The principle of restitution is an integral part of virtually every formal system of criminal justice, of every culture and every time. It holds that, whatever else the sanctioning power of society does to punish its wrongdoers, it should also insure that the wrongdoer is required to the degree possible to restore the victim to his or her prior state of well-being.
S.Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S. Code Cong. & Ad. News 2515, 2536. The report went on to describe the testimony of one woman who “was the victim of a purse snatching as a result of which she also suffered a broken hip.”
Anglian next argues that the restitution order violates his constitutional right to equal protection because he is forced to pay more than most of his co-defendants. A restitution order is in the nature of a sentence, and the district court is “vested with wide discretion” in determining the appropriate sentence for a convicted defendant. Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970); United States v. Palma, 760 F.2d 475, 478 (3d Cir. 1985); United States v. Satterfield, 743 F.2d 827, 841 (11th Cir. 1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262 (1985). The Constitution does not require identical sentences for persons convicted of the same offense. Williams, 399 U.S. at 243; Palma, 760 F.2d at 478; Satterfield, 743 F.2d at 841. As the courts of appeals in these cases have noted, some disparity in restitution orders is inevitable under this statute, for it requires the court to consider each defendant‘s individual financial needs and resources. See
Relative degree of responsibility is not listed as a factor for consideration in the statutes. They make no provision for the treatment of multiple defendants. Section 3580(a), however, permits the court to consider “such other factors as the court deems appropriate.” In considering restitution orders for multiple co-conspirators, we can think of perhaps no “other factor” that would be more appropriate than the relative culpability of the defendants. Despite the emphasis on compensating the victim, restitution is clearly a component of punishment, and, as the Supreme Court has observed, “the punishment should fit the offender and not merely the crime.” Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949). The Ninth Circuit quoted this statement in noting that “the concept of individualized sentencing is firmly entrenched in our present jurisprudence.” United States v. Barker, 771 F.2d 1362, 1365, 1367 (9th Cir. 1985) (reversing an incarceration order that gave all co-conspirators the maximum sentence without regard to relative culpability). We hold that it was proper for the court below to consider degrees of responsibility, along with the other factors listed in section 3580(a), and that the resulting restitution order was not an abuse of discretion. We emphasize, however, that this opinion should not be read as requiring the consideration of relative culpability in making every restitution order. While we hold that this is an appropriate factor in this case, we do not hold that it is always a necessary factor.
Finally, Anglian assails the order because he, unlike most of the other defendants, was ordered incarcerated as part of his sentence and will not have an opportunity to earn the money needed to make restitution in order to gain parole. While the statute, and the trial court‘s order, state that payment of restitution “shall be a condition of ... parole,”
II.
Anglian also assails the admission at trial of an inculpatory statement made by him to postal inspectors. Prior to his indictment, Anglian had been served with a grand jury subpoena to provide fingerprints and handwriting exemplars. The subpoena had been issued by a United States Attorney. To avoid the necessity of
We see no grounds on which to overturn the trial court‘s conclusion that the statement was made voluntarily. Anglian‘s main arguments were that he subjectively believed that the grand jury subpoena required him to make the statement, that he did not understand that he could not be compelled to speak, and that he believed the statement was to be used against other defendants but not against himself. The trial court found that these assertions were belied by the plain words of the subpoena and the statement and by Anglian‘s admitted understanding of his rights. We agree.
Anglian also argues that the statement is tainted by an improper use of a grand jury subpoena in that no grand jury existed before which he could have appeared if he had not complied with the subpoena informally. This court has held that a United States Attorney may properly issue a grand jury subpoena without prior direction from the grand jury and that investigators may suggest voluntary compliance as an alternative to a formal appearance. See United States v. Smith, 687 F.2d 147, 152 (6th Cir. 1982), cert. denied, 459 U.S. 1116, 103 S.Ct. 752, 74 L.Ed.2d 970 (1983); see also United States v. Santucci, 674 F.2d 624, 632 (7th Cir. 1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 737, 74 L.Ed.2d 959 (1983). We indicated in Smith, however, that some involvement of the grand jury is necessary. 687 F.2d at 152 n.2 (distinguishing Santucci, and cases where no grand jury was in session). There was a factual dispute in this case, unresolved by the trial court, about whether a grand jury was, in fact, in session. Even assuming that the subpoena, and thus the production of fingerprints and handwriting exemplars, was invalid, however, we see no way in which the statement, otherwise voluntarily made, was thereby tainted. The subpoena did not require testimony, and clear and understood warnings were given before the statement was made. There was an insufficient nexus, we think, between the subpoena and the statements for the illegality of one to affect the other. See Santucci, 674 F.2d at 632-33.
AFFIRMED.
MERRITT, Circuit Judge, concurring.
While the Court acknowledges that, in order to establish liability in restitution, the civil law normally requires a benefit received of some sort as well as a loss sustained, the Court nevertheless holds that “it is unmistakable from the tenor of these statutes that Congress did not intend the term ‘restitution’ as used in the [Victim and Witness Protection Act of 1982] to be so construed.” The Court cites the fact that the statute allows compensation for
I would hold that in ordering “restitution” under the statute, the sentencing court is limited by general concepts of restitution as previously developed in equity and in common law, rather than tort principles of compensation.
In the instant case, as the District Court noted, the defendant himself actually acquired approximately $16,000 worth of stolen checks and parceled them out to his co-conspirators for cashing. The conspiratorial group received the money. The defendant was the leader of the group, and the others were acting as agents of the enterprise. Under these circumstances, the District Court was correct in concluding that general principles of restitution would allow the proceeds of the checks received by the defendant‘s enterprise to be considered as benefits received by him. Cf. Mosser v. Darrow, 341 U.S. 267, 71 S.Ct. 680, 95 L.Ed. 927 (1951) (benefits obtained by agents of trustee at expense of trust estate are attributable to trustee); G. Palmer, The Law of Restitution § 2.11 at 141-42 (1978). The case fits within established principles of restitution, and there is no need to use broader tort concepts.
The fact that the statute allows compensation for the victim‘s medical and other similar expenses does not mean that such damages may be awarded when they do not fit within general principles of restitution. Congress consistently used the word “restitution” throughout the statute. The members of the Judiciary Committees of both houses of Congress, as well as their staffs, are lawyers trained in the common law tradition. They understood, in my opinion, that the word “restitution” has a historical meaning different from tort, and I would maintain this distinction when interpreting the statute.