*1 notes, correctly it is majority theAs demonstrate
City’s burden lev applicable meet
speech restrictions State Trustees Bd. scrutiny. See
el of 480, 109 Fox, 492 U.S. v. Univ. of N.Y. (1989). The L.Ed.2d 388
S.Ct. here because that burden
City not met has not, fact, ad did restrictions
the secret maintaining legitimate goals
vance Accordingly, I safety. flow
pedestrian restrictions that Baltimore’s hold
would analysis narrow-tailoring
fail even Ward’s therefore, are, unconstitutional.
IV. reasons, apply I would foregoing
For the standard described heightened Baltimore’s and conclude
Madsen be- are unconstitutional restrictions
speech than nec- speech more they
cause burden But City’s goals.
essary to achieve de- rigorous standard under the less
even Ward, I would conclude
scribed are unconstitution-
Baltimore’s restrictions in a manner speech they burden
al because goals. the City’s advance
that does not respectfully dissent.
Accordingly, I America, STATES
UNITED
Plaintiff-Appellee, ABDELBARY, Hafez
Youssef
Defendant-Appellant.
No. 13-4083. Appeals, Court of
United States
Fourth Circuit. 12, 2013.
Argued: Dec. March
Decided: *2 by published
Affirmed opinion. Chief Judge TRAXLER wrote majority opinion, in which Judge joined. FLOYD Judge DIAZ wrote a dissenting opinion. TRAXLER, Judge: Chief Youssef Abdelbary appeals a district court order pay him to requiring restitu- tion of his sentence bankruptcy error, fraud. Finding no we affirm. I.
Abdelbary
fraud,
was convicted of wire
money laundering, currency structuring,
fraud,
perjury.
and
This is
case,
appeal
second
many
this
and
the facts relevant to
appeal
this
are set out
in our first decision. See United States v.
Abdelbary,
A. Youssef operat- owned and ed a gas station and convenience store Dublin, Virginia. Abdelbary leased the property and bought gas he sold from Jordan Oil. running While this business, Abdelbary used a branch of Bank Carter and Trust Chris- tiansburg, Virginia, where he made transactions, more than one hundred involving $10,000. each than more At size, the time of the deposit of this first Stewart, Ralph manager local for Car- Beers, Glenn, ARGUED: Paul Graham Trust, ter Bank explained to Abdel- Feldmann, Goodlatte, Darby Roanoke, & bary about the currency transaction re- Virginia, Appellant. Joseph W.H. (“CTRs”) ports that had to be filed on a Mott, Office of the United Attorney, States $10,000. involving transaction more than Roanoke, Virginia, Appellee. ON Abdelbary’s relationship with Jordan BRIEF: Timothy Heaphy, J. grew in late 2007 contentious Attorney, Office the United early 2008. When failed to Roanoke, Attorney, Virginia, for payment make a due to Jordan Oil in Appellee. early February gas 2008 for it had deliv-
ered, Jordan Oil its ceased deliveries to TRAXLER, Before Chief Judge, and Abdelbary. Jordan Oil sued soon there- FLOYD, DIAZ and Judges. Circuit after money to collect Abdel- fraud, mon- $250,000. wire about owed, totaled bary laundering, ey Abdelbary began day, following 1956(a)(1)(B)® (ii), currency less currency in amounts withdrawing 5324(a)(1) structuring, 31 U.S.C. days, eight next $10,000. Over than fraud, 5324(d), (3) Abdelbary withdrew *3 152(3), 18 U.S.C. perjury, § and U.S.C. liti- transactions. The in eleven account Abdelbary on juryA convicted § 1623. continued against gation counts. all Eventually, of 2008. spring through litigation con- May, verdict, this at the end jury returned its After a final Oil obtained cluded when Rule granted court district for Abdelbary against judgment acquittal judgment of for 29 motion Abdelbary’s counter- laundering money and fraud the wire in- was dismissed. claim court read The district counts. the Government requiring dictment month, Abdelbary engaged The next doubt that a reasonable prove beyond in card transactions credit in series the credit card Abdelbary credit personal his charged he intention in with charges June 2008 multiple equal his cards at store thus not bankruptcy and filing for a few minutes. span in a amounts companies. those repaying credit- purchases was of these The value had not held Government court at Carter Bank account ed to the therefore dismissed burden and met this for his busi- Abdelbary used Trust of the indictment. counts money, those this ness, withdrew and he then $52,350, that account totaling court sen- sentencing, district At $10,000. less than amounts twenty-four months Abdelbary to tenced a criminal entered prison. court at bankruptcy Abdelbary met Abdelbary judgment against initially forfeiture Abdelbary July 2008. torney in Abdel- $112,229.31and ordered also he for attorney that bankruptcy this told to Jordan Oil pay restitution Oil, bary to but at Jordan get wanted to back attorney’s fees incurred $84,079.35 for he eventually concluded proceeding. The during Abdel- bankruptcy. When would file voluntary, cited both he district bankruptcy filing, bary submitted mandatory, 18 one 18 U.S.C. any gifts within having made denied 3663A, provisions any property having transferred year or specify- ever hearing during without filing. Addition years two within rely- it was on which ing provision at the Abdelbary stated ally, ing. trans that he had meeting creditors’ family to a member.
ferred assets omitted). (footnote Id. 274-75 statements, Abdelbary these Despite Abdelbary’s con- we affirmed appeal, On Egypt $76,000 his brother in had sent structuring, reversed currency viction years.[1] two previous those on the wire judgment acquittal convictions, laundering money B. reinstatement and remanded judgment entry of the jury events, Abdelbary was verdict Based on these id. at Addi- Abdelbary. See against twenty-count indictment in a charged Chapter petition. delbary's eventually Ab- bankruptcy court denied 1. The tionally, we vacated the restitution award tained that attorneys’ fees could never be and remanded for further proceedings, included compensable costs as holding that the district court had not restitution under the MVRA. He alterna- specified whether the pursuant award tively argued fees were not to the Victim and Witness Protection Act includable based on the facts of this case (‘VWPA”), see 18 or the as Jordan Oil was not a victim Abdel- Mandatory Victim Act Restitution bary’s offense since failed in his (“MVRA”), 3663A, see 18 U.S.C. and the attempt to discharge his debts bank- court had overlooked making the factual ruptcy. Abdelbary maintained that Jordan findings required by the appropriate act. Oil’s incurrence of attorneys’ fees was at See Abdelbary, 496 Fed.Appx. at 279. loss, most a consequential one, not a direct remand,
On the district court sentenced and thus the fees were not compensable as *4 Abdelbary to 27 imprisonment. months’ part of restitution.2 parties The disagreed, they as did during government The disagreed and urged Abdelbary’s first sentencing, regarding again court to require Abdel- whether Abdelbary required, should be as bary pay to Jordan Oil restitution in the part of his sentence for the bankruptcy amount of the attorneys’ it fees incurred as offenses, fraud to make restitution Jor- a result of Abdelbary’s bankruptcy fraud dan Oil for the fees it incurred offenses. government The that denied in the bankruptcy proceeding. par- The there was sort of “blanket prohibition agreed ties governs the against attorneys’ fees as a class of ex- question. pense” and they argued were includa- 3663A(c)(l)(A)(ii) (providing that MVRA part ble as long restitution so they as applies to “an offense against property resulted directly from the crime. J.A. 525. ..., under this title including any offense government The asserted that Jordan Oil’s deceit”). committed fraud or The dis- fees resulted and proximately trict court found as a factual matter that from the bankruptcy fraud because Jordan the attorneys’ fees at issue “were incurred Oil incurred the fees defending its rights as a fraud,” result of the bankruptcy J.A. in the same Abdelbary proceeding Abdelbary’s did not dispute that — However, bankruptcy point. which the fraud Abdelbary argued, occurred. as he —in had In other during words, his initial position sentencing, govern- that Jor- dan Oil could not recover ment was its order to paying avoid in the bankruptcy incurred proceeding Jordan Oil creditors, its other Abdel- part of restitution. Abdelbary main- bary tried to hide money, his assert insol- question 2. A has been as to raised whether do not concede that Jordan Oil is even a Abdelbary argued during resentencing that mandatory victim for purposes, be- the district court had failed to find but-for cause the victim has to be the victim direct post, causation. See (citing alleged n. J.A. They're offense. direct 525-26, 528-29). But the there, district court noted victim.... I if think there's a victim during resentencing that already trustee, it Judge, had found bankruptcy it’s the not Jordan sentencing Oil.”); the first ("Mullins "that these attor- J.A. says 528-29 that conse- ney fees were incurred as a quential result of the damages, attorneys' such as are bankruptcy fraud.” J.A. 523. of- not recoverable.... [The not a direct are] challenge fered no law, damage. whatsoever to that deter- As a matter of that’s conse- mination. In the pages quential above-cited They’re damage.... trying get at- joint appendix, Abdelbary fees; simply argued remote, torneys’ inconsequential that's the attorneys’ consequential, fees were damage. rather not an That’s intended-—a direct direct, damages. ("[W]e than loss.”). See J.A. 525-26 attorneys’ fees Oil’s pay Jordan bankruptcy. file for vency, and of resti- bankruptcy proceeding legal representa- to obtain then forced disagree. against tution. We its claim keep tion to pro- proceedings As the alive. context, re we sentencing lies in his Abdelbary persisted
gressed, done clear error he had fact for findings and what assets view his about became de he told construction statutory The lies money. questions bankrupt- Moore, his convictions the bases See United novo. Cir.2012). the continuation required We review cy that caused proceedings factual find application reach litigation expenses Oil’s discretion. abuse of context for ings in this distinguished government $84,079.35. See id. from those present case facts the enact concerning background Some then a loss and suffers a victim and the MVRA the VWPA ment attorneys’ fees at- incurs later sometime the issue understanding of helpful to an the defendant. to recover tempting Although Abdelbary raises. rejected Abdelbar/s law, at common long been authorized has government, agreed with arguments, statutory authorization no there Abdelbary under again ordered *5 a criminal requiring Oil to Jordan pay context probation outside of sentence amount of the restitution, representing VWPA, see of the prior to the enactment Oil incurred legal (1982), 97-532, 1982 at 30 S.Rep. No. bankruptcy proceedings. 2515; v. Ama United U.S.C.C.A.N. expen- fee found court Cir.2008). (2d 153, Con to, 159 540 proximately directly and “were ditures 1982, see the VWPA gress enacted Abdelbary’s bankruptcy by caused” (currently 97-291, Stat. 1248 96 Pub.L. incurred the Oil insofar as 3663).3 § Under U.S.C. at 18 codified pro- very in the same rights defending its enacted, restitution VWPA, originally oc- bankruptcy fraud ceeding in which to a only made “victim” be could judge spe- district 534. The curred. J.A. only specified of conviction offense thinking of that “I’m cifically stated by the were “caused of losses that types thinking of it as fee-shifting. I’m this as is the basis conduct that specific As filing of this. direct harm v. United indicated, Hughey of conviction.” [Jordan has government] [the 1979, 413, States, 411, 110 S.Ct. bankrupt- into 495 U.S. essentially dragged was] (1990).4 concerning Even 533-34. 408 cy court.” J.A. 109 L.Ed.2d specified suffered the who have victims II. losses, the decision whether type of is dis the VWPA restitution under order appeal argues on Abdelbary now 3663(a)(1). § cretionary. See 18 U.S.C. requiring him erred the inherent do not have courts 4. “Federal originally at 18 codified 3. The VWPA restitution, rely must authority but to order so later recodified but §§ 3579-80 U.S.C. statutory to do so.” source § appears as 3663 § now 3579 Cir.2013) 809, Davis, 812 714 F.3d Hughey § See appears as § 3580 now 1, (internal omit- 411, quotation marks and alteration States, n. 110 413 495 U.S. v. United ted). (1990). 1979, L.Ed.2d S.Ct. enacted, originally As person VWPA identi- harmed as particular types fied losses that could be a result of the commission of an offense for included restitution for certain types which may be ordered.” involving crimes damage to or loss or de- 3663A(a)(2); § see 18 U.S.C. struction of property, see 18 3663(a)(2). U.S.C. § 3663(b)(1), § types other of losses that 3663A(b), Section like its VWPA coun- could be included for involving crimes bod- terpart, 3663(b), § specifically identifies (3). ily injury, 3663(b)(2), see 18 U.S.C. the types of losses includable in a restitu- 1994, Congress In added to the types of tion award under appeal the MVRA. This losses that could be included under the primarily concerns (b)(4). by adding VWPA subsection 3663A(b)(l), which provides: Against Violence 1994, Act Women (b) The order of restitution shall re- 103-322, IV, 40504, Pub.L. No. Title quire that such defendant— (1994). Stat. That subsection (1) in the case of an offense resulting that, crime, provides any type resti- in damage to or loss or destruction of may tution orders be used to “reimburse property of a victim of the offense— the victim for lost income and necessary (A) return the property to the owner care, transportation, child and other ex- property or someone designat- penses related to participation in in- owner; ed or vestigation prosecution or of the offense or (B) if return property attendance at proceedings related to the (A) subparagraph impossible, im- 3663(b)(4). offense.” 18 U.S.C. practicable, or inadequate, pay an Congress enacted the MVRA as equal amount to— part of the Antiterrorism and Effective (i) greater of— Penalty Death Act of see Pub.L. No. (I) the value of on the *6 104-132, (1996). 110 Stat. 1214 The date damage, loss, or destruc- payment MVRA made of restitution as tion; or of a criminal mandatory sentence (II) the value on the certain categories of offenses that directly date of sentencing, less a caused victim to suffer (ii) (as the value of prop- the date the either a physical or a pecuniary loss. See returned) erty of part of the 202, § 1227; MVRA 110 at Stat. United property that is returned.... (4th v. Squirrel, 207, F.3d Cir.2009). Here, While the VWPA’s substantive the district court found that Jordan requirements are at codified 18 U.S.C. Oil was a “victim” Abdelbary’s of § the MVRA’s are primarily set out because directly proxi- offenses § 3663A.5 Section mately 3663A’s expend Jordan Oil to § structure mirrors that of and much see 18 §of 3663A is or nearly 3663A(a)(2), § identical identical U.S.C. than an such award language § to Additionally, 3663. the in the amount of those fees was proper § MVRA (b)(1). amended 3663’s definition of basis, under subsection On this the “victim” to match the definition in court ordered Abdelbary to make restitu- 3663A, is, § which here, as is relevant “a tion to Jordan Oil in that amount. procedure 5. The imposing restitution un- 3664. See 18 U.S.C. 3556. der both statutes is out in 18 set obtaining fraud, involved wire challenge the not
Abdelbary does
See
equipment.
kitchen
$45,000
worth
that Jordan
court’s determination
district
ordered
court
a
as
result
at 1140.
attorneys’ fees
id.
Oil
as
$42,500
main
in restitution
pay
to
fraud.
defendant
of his
order
See
the restitution
under
VWPA.
tains,
that
his sentence
though,
part of
ex
here,
fee
the defendant
because
relevant
erroneous
As is
was
id.
under
compensable
never
includ-
improperly
are
amount
penditures
argued that
deci
by our
is demonstrated
form of
damages
the MVRA
consequential
ed
Mullins,
v.
expend-
sion
amounts
attorneys’ fees
other
conclude,
Cir.1992).6
howev
(4th
We
repossess-
owner
equipment’s
ed
findings,
the district
er,
based
In
id. at
See
equipment.
ing the
sub
includable
were
the fees
that
the losses includable
scope of
analyzing the
3663A(b)(l).7
section
that
order, we observed
in the restitution
3663(b)(1)
is essential-
18 U.S.C.
convicted
Mullins,
was
—which
the defendant
In
counterpart8—
to its MVRA
ly identical
the commission
abetting
aiding
was
argument that Jordan Oil
the district
that
6.Abdelbary
also contends
meaning of the
within the
a
was
"victim”
concluding
Oil
that Jordan
erred in
court
listing
"$0.00” as Jor-
the court’s
because
specifically
court
the district
because
a victim
"[tjotal
a factual
constituted
Oil’s
loss”
dan
an actual
suffer
Oil did not
Jordan
found that
loss,
as a
loss
MVRA,
Oil suffered no
finding
Jordan
as a
meaning
within
cited
fraud.
In
result of
United States
the offense.
result of
brief,
argues
Abdelbary's
Cir.2008) (ex-
page
Harvey, 532 F.3d
been
not have
finding
would
of no loss
that a
must be
order
a restitution
plaining that
attor-
Oil’s
Jordan
clearly
because
loss).
erroneous
support
actual
victim’s
based on
consequential, rather
neys’
were at most
found
district court
of his contention
direct,
Appellant's Brief
damages. See
than
loss,
page 5 of
Abdelbary points to
no actual
judi-
goal
("Abdelbary’s
obtain
at 13
the court
judgment, wherein
the amended
to Jordan
discharge
his indebtedness
cial
"[tjotal [ljoss.”
Oil’s
as Jordan
"$0.00”
listed
Causing
Oil
creditors.
and other
Oil
However,
we conclude
J.A. 565.
not an element
attorney's
to incur
loss on
Oil’s total
listing
as Jordan
of "0.00”
were at
legal
Oil’s
bills
the offense.
judgment at most amounted
the amended
Abdelbary's
consequence of
an indirect
most
sentencing tran-
error.
an administrative
may only
award
A restitution
offense....
actu-
script
clear that
makes
damages re-
actual
compensate for a victim’s
Abdelbary’s conduct
ally
a fact that
found
ele-
essential conduct
sulting
from an
proxi-
directly and
offenses
underlying his
and con-
losses
offense. Indirect
ment of the
expend
mately caused Jordan
*7
compensable
damages are not
sequential
attorneys’
therefore
fees. We
in
added)).
(emphasis
the MVRA.”
losses' under
amended
on the
the
that
notation
conclude
explained in the remainder
For the reasons
validity of the
the
not affect
judgment does
Abdelbary’s argument
is incor-
opinion,
our
v. Os-
United
order.
Cf.
rect.
Cir.2003)
281,
(4th
borne,
n. 1
345 F.3d
("It
a conflict
normally
that where
the rule
is
were
that
the fees
we conclude
7. Because
orally pronounced sentence
an
exists between
(b)(1), we do not
under subsection
includable
sentence
judgment, the oral
written
district
argument that the
address
Morse,
control.”);
States v.
United
will
were
fees
correctly determined
Cir.1965) (”[W]e
27,
car-
should
(b)(4).
under subsection
not includable
sentencing
ry
the true intention
out
3663(b)(1) provides:
8. 18 U.S.C.
what he
gathered
may
judge
this
be
(b)
require
defen-
sentencing.”).
may
that such
time of
order
at the
said
dant—
Abdelbaty’s
page 13 of
not read
We do
resulting in
(1)
an offense
case
challenge the district
opening brief to
prop-
damage
or destruction
to or loss
sentencing.
causation at
to find but-for
failure
the offense—
erty
a victim of
view,
simply part of
page is
the cited
In our
the amount of
described
restitution the
to collect a
reasonable
fee from
district court was authorized to award.
the loser.” Alyeska Pipeline Serv. Co. v.
Construing
See id.
language,
this
con-
we
Society,
240,
Wilderness
247,
U.S.
cluded that
involving
“[i]n cases
the dam-
1612,
(1975).
S.Ct.
III. viction legally is purpose irrelevant For reasons, the foregoing restitution.”). The only relevant consid- court’s restitution order is affirmed. erations for restitution purposes are “the elements the offense of conviction and
AFFIRMED. specific conduct underlying these ele- Freeman, ments.” United States v. DIAZ, Judge, Circuit dissenting: Cir.2014) (internal quo- majority concludes that attorneys’ omitted). tation marks fees are recoverable as restitution under the MVRA “in the exceptional scenario Abdelbary was convicted three counts which the fees were the direct proxi- of violating 152(3), 18 U.S.C. which pro- mate result of the defendant’s crime.” hibits a person from “knowingly and fraud- Maj. Op. at 577. Although agree, I in ulently mak[ing] a false ... statement un- theory, that attorneys’ may be part of der penalty of perjury ... in or in relation an award of statute, restitution under the I case under title 11.” He was also take issue with finding that all of the convicted of two violating counts of Abdelbary argues that the district authority court con- source point, of its beside the cluded that it had authority under subsections however, as the court made critical find- (a)(1) (a)(2) 3663A to include ing that Jordan Oil’s incurrence of the fees they but did not find were includa- proximate direct result of Abdel- (b)(1). ble under subsection That the district bary’s offense. specifically (b)(1) court did identify as the
580 offense, but factually relevant offense, aor person a prohibits which U.S.C. read offense, only can be which mate- any false rather mak[ing] “knowingly from (inter- conviction.” oath. the offense to under mean while rial declaration” omitted)).2 There con- convictions marks these quotation nal underlying conduct Ab- rep- that suggest fraudulent to (1) Abdelbary’s record nothing in the of: sisted Financial bankrupt- for have filed not delbary in his Statement could resentation any assets transfer representations not he did fraudulent that cy Affairs absent know, the bank- preceding all years And for we the two assets. his regarding (2) state- fraudulent his for a qualified petition; ruptcy may well have Abdelbary he had meeting, that ment, a creditors about at not lied had discharge if he family to any assets case, not transferred In that transferred assets. denial, at (3) his fraudulent members; and into “dragged have been would Oil still having transferred meeting, of the same and incurred court” bankruptcy years. five previous within any assets judgment. its protect to specif- a not make court did home, consider point drive To Abdelbary’s fraudulent that finding ic filing criminalizes the which U.S.C. conduct— i.e., statements — in connection petition bankruptcy of a fees. incur toOil Had to defraud.3 a scheme res- to base Instead, seemed the court provision, violating that convicted been Oil that Jordan finding aon titution award argua- have had an would government to that it very had fact by the harmed was Oil fees Jordan all of the that case ble at proceedings bankruptcy participate proceedings bankruptcy in the stated, “I’m the court example, all. For Abdelbary, as attributable were from the harm a direct it thinking of petition would bankruptcy of a very filing was] essen- [Jordan this.... filing of conduct, and his offense constituted have court.” bankruptcy into tially dragged been have would proceedings the entire J.A. 533-34.1 neither Abdelbary was But tainted. view, improperly district court my violating 18 nor convicted charged with the basis Abdel- restitution ordered prec- and, court’s under this dis- pursuing a bary’s “relevant conduct”— resti- ordering for edent, no basis there is than the charge —-rather not he for conduct tution his offense underlying conduct specific convicted. Freeman, F.3d at conviction. Abdelbary’s untruthful- recognize I not do allow (“[T]hese statutes [restitution] Jor- the fees may have exacerbated conduct, ness a related for relevant offense,” and em- error, not an element stating majority a similar makes 1. The may only award phasizing "[a] directly proxi- were fees incurred "the damages re- actual compensate a victim’s mately caused ele- conduct an essential sulting in the con- occurred fraud because offense"). bankruptcy proceed- ment Abdelbary's text of added). (emphasis Op. Maj. at ing_” intending who, having devised or person 3."A to defraud otherwise, or a artifice devise scheme majority Although believes concealing executing or purpose of fail- challenged attempting do or artifice or sentencing, scheme such causation to find but-for ure shall title 11... petition 528-29, ... files 525-26, appeal, so see, and on e.g., J.A. title, imprisoned more under this fined be see, (arguing Br. at 13 e.g., Appellant's 157(1). years, or both." attorney's than Oil to incur "[clausing Jordan *11 dan had expend Oil to defend its inter-
ests in bankruptcy. Perhaps Abdelbary’s
petition would have been dismissed much
earlier had he not misrepresented his fi- affairs,
nancial saving thus Jordan Oil time expense. But government never
attempted to demonstrate causal connec-
tion between fraudulent state-
ments and aggravation of Jordan Oil’s
fees, and the district court made no factual
findings words, that effect.4 In other government failed to show that “even [Abdelbary]
had completely been truthful matters,
about these [Jordan would Oil]
not have suffered the same harm.” Free-
man, at 438. Because the dis- clearly
trict court erred when it found that
Abdelbary’s criminal conduct directly and all of Jordan Oil’s at-
torneys’ I would portion reverse that
of the district judgment ordering to pay in restitution.
I respectfully dissent.
Gary CHENEVERT, Plaintiff-Appellee
TRAVELERS INDEMNITY
COMPANY, Defendant-
Appellant.
No. 13-60119. Court Appeals,
Fifth Circuit.
March 4. Jordan Oil incurred representing also objected er creditors to Defendant's dis- the interests of other charge. creditors Jordan Oil bore the burden and ex- ("Jor- proceedings. See pense all_"). J.A. for the benefit of I do not dan Oil ... took the lead objecting believe responsible can be for the discharge Defendant's for the benefit of itself voluntarily fees Jordan defending other Defendant’s [N]o creditors.... oth- other debts. creditors'