U.S. v. Berardini, 946

• Decision Date: 30 April 1997
• Docket Number: D,No. 946,946
• Citation: 112 F.3d 606
• Parties: UNITED STATES of America, Appellee, v. Brian BERARDINI, Defendant-Appellant. ocket 96-1421.
• Court: U.S. Court of Appeals — Second Circuit

Page 606

112 F.3d 606

UNITED STATES of America, Appellee, v. Brian BERARDINI, Defendant-Appellant.

No. 946, Docket 96-1421.

United States Court of Appeals Second Circuit.

Argued Jan. 21, 1997.

Decided April 30, 1997.

Anthony M. Bruce, Assistant United States Attorney, Buffalo, NY (Patrick H. NeMoyer, United States Attorney for the Western District of New York, Buffalo, NY, on the brief), for Appellee.

Robert M. Goldstein, Buffalo, NY, for Defendant-Appellant.

Before: KEARSE and JACOBS, Circuit Judges, and GLEESON, District Judge ^*.

KEARSE, Circuit Judge:

Defendant Brian Berardini appeals from a judgment entered in the United States District Court for the Western District of New York following his plea of guilty before William M. Skretny, Judge, convicting him of conspiracy to commit mail and wire fraud, in violation of 18 U.S.C. §§ 371 and 1343 (1994). Berardini was sentenced principally to five months' imprisonment, to be followed by a three-year term of supervised release, and was ordered to pay $39,271 in restitution to 62 individuals. On appeal, he contends principally that the district court erred in ordering restitution of more than $11,791, which was the amount lost by the 20 victims who had been located by the government. Although the district court may be required to take action at future times to resolve problems with respect to victims who at those times remain unlocated, we affirm the judgment as it now stands.

I. BACKGROUND

In June 1995, Berardini and 28 others were charged in an 89-count indictment with conducting a massive fraudulent telemarketing conspiracy. The government produced evidence that the losses to the conspiracy victims totaled some $27 million. In February 1996, Berardini pleaded guilty to participating in the conspiracy from 1992 to 1993. He acknowledges that during that period he grossed approximately $39,271 in sales to customers he called. In his plea agreement, Berardini acknowledged that he "made at least 68 sales knowing that the pitches he used to obtain each sale were, at times, false, and at other times, misleading" (Plea Agreement at 4), and that the court "may require that restitution of approximately $39,271 be paid" (id. at 2).

At Berardini's sentencing hearing, the government stated that it had been able to locate the persons to whom Berardini made sales totaling $11,791 and that it "kn[e]w the names, addresses, et cetera, of every one of the victims that went into the thirty-nine thousand some odd dollar figure through the FBI data bases." (Sentencing Transcript, May 7, 1996 ("Tr."), 15.) The government stated that although it had been able to locate the victims whose losses totaled $11,791, "[t]he others ... are many elderly victims," and "[m]any of those people died, gone [sic ] into nursing homes, and things of that nature and simply can't be located at this point." (Id.)

After sentencing Berardini to five months' imprisonment, to be followed by three years of supervised release, and declining to require payment of a fine, the district court stated as follows with respect to restitution:

I am going to direct that restitution be paid in the amount of thirty-nine thousand two hundred seventy-one dollars. That's due immediately. The execution of that requirement, that amount and that judgment is stayed. I'm going to set monthly installments over the three-year period of supervised release of three hundred dollars that you are to pay, and that will be worked out with you by probation, and that those monies that are paid be made available to the identifiable victims that are identified in the report in this particular case....

(Tr.19.) Although the oral sentence itself did not specify the duration of the stay with respect to so much of the $39,271 as would exceed the $300 in monthly payments, the written judgment of conviction dated May 7, 1996 ("Judgment"), states that the total must be paid at least three months before the end of Berardini's three-year term of supervised release. The Judgment orders Berardini to

make restitution to Victims in the amount of $39,271. The defendant shall make timely installments on a schedule to be fixed by the U.S. Bureau of Prisons while incarcerated and at the rate of $300 per month while on supervised release. Full payment of the restitution is due at least three months prior to the expiration of supervision.

Judgment at 3 (emphasis in original). The Judgment lists by name the 20 persons to whom restitution in specified amounts, totaling $11,791, must be made, and it provides that the "[p]ayments of restitution are to be made to ... the payee(s)," rather than to the United States Attorney. Id. at 4.

Berardini appealed, contending, inter alia, that the proper amount of restitution is $11,791. This Court, noting that the Judgment (a) did not list the 42 victims to whom restitution of the remaining $27,480 (i.e., the difference between $39,271 and $11,791) was to be made, and (b) did not make clear what obligation, if any, the court imposed on Berardini in the event that the government does not succeed in locating any or all of those remaining victims prior to the expiration of Berardini's term of supervised release, remanded by summary order to the district court for clarification.

In a Statement, With Memorandum as Supplementation of the Record, in Clarification of the Sentence of Restitution, dated February 14, 1997 ("District Court Clarification"), the district court stated, inter alia, that, as provided in the oral sentence and the Judgment, Berardini is to pay the full $39,271 in restitution, and that it is the court's hope that some or all of those identified victims who have not yet been located will come forward to claim the restitutionary payments to which they are entitled.

The court indicated that it had imposed the restitution order for $39,271 in the wake of the representation that the government had the names and addresses of all of the victims whose losses totaled that sum, and that on remand, the Assistant United States Attorney had candidly conceded that "the government does not in fact have the addresses of the victims owed the balance of the restitution above the $11,791." District Court Clarification at 3 (emphasis in original). The court expressed the expectation that the government would file a lien with respect to the remaining $27,480:

[A]ll of those victims have been identified. The amount of sales for which Mr. Berardini is responsible was known, since he has not objected to the total amount as stated in the presentence report. The only gap is in finding those victims who are identified but unlocated, and who are owed $27,480.

When I sentenced Mr. Berardini, I required him to pay the full restitution of $39,271. To clarify the specifics of the restitution payment schedule, the twenty victims whose names and addresses are included in the presentence report will be paid their restitution first. That restitution will equal $11,791, as the presentence report indicates. Further, my ruling on restitution stands insofar as the Defendant will be obligated to pay $300 per month for the three years of his supervised release. He will therefore pay $10,800 to the identified and located victims during his supervised release. Mr. Berardini will then be responsible for the remaining $991 owed to the identified and located victims, plus the $27,480 payable to the sixty-two [sic ] identified but unlocated victims.

It was and still is this Court's understanding that the government's procedure after a restitution order is imposed is to file a lien on behalf of the United States for the amount owed.... This lien remains in place for twenty years, so this Court is informed, or until the balance of the restitution owed is satisfied, remitted, set aside, or terminated. While this Court and the Probation Officer will lose the ability to monitor Mr. Berardini's compliance with the restitution order after the end of his supervised release, the lien will allow victims to come forward and claim what is rightfully theirs. Mr. Berardini can, in the meantime, make his payments on the balance of the restitution for such eventuality to the appropriately designated fund which is maintained by the Clerk of the Court.

Id. at 3-4 (emphasis in original) (footnotes omitted).

II. DISCUSSION

On appeal, Berardini contends principally that the district court erred in ordering restitution of more than the $11,791 lost by the 20 victims who have been located by the government. In a letter brief submitted following the District Court Clarification, Berardini concedes that "[t]here is no question that the government will be able to file a lien on behalf of the victim(s) to whom this money is owed." (Berardini letter brief at 4.) But he argues that since the government itself was not a victim of the offense and hence is not entitled to restitutionary payment in its own behalf, and since there is little likelihood that all of Berardini's victims, who have not been located since 1992-1993, will be found in the future, "[t]he question then arises, to whom does the Appellant pay the balance of $27,480.00 of restitution owed in order to discharge his obligation, if the District Court's Restitution Order is allowed to stand." (Id.) Though this question is not without substance, we conclude that the district court will appropriately be able to answer it if and when the problem arises.

A. The Order of Restitution to Identified but Unlocated Victims

A sentencing court's order of restitution is reviewed for abuse of discretion. See, e.g., United States v. Soto, 47 F.3d 546, 550 (2d Cir.1995); United States v. Lavin, 27 F.3d 40, 42 (2d Cir.) (per curiam), cert. denied, 513 U.S. 976, 115 S.Ct. 453, 130 L.Ed.2d 362 (1994). Given Berardini's acknowledgement that he grossed $39,271 in the unlawful scheme, and given the identification of the 62 victims whose losses totaled that sum, we see no theoretical error or abuse of discretion in the...