U.S. v. Grant, 00-1251

• Decision Date: 18 September 2000
• Docket Number: No. 00-1251,00-1251
• Citation: 235 F.3d 95
• Parties: (2nd Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. ROBERT GRANT, Defendant-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 95

235 F.3d 95 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. ROBERT GRANT, Defendant-Appellant.

No. 00-1251

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

September 18, 2000, Argued

December 13, 2000, Decided

JOHN HUMANN, Federal Public Defender's Office, Buffalo, NY, for Defendant-Appellant.

MARTIN J. LITTLEFIELD, Assistant United States Attorney, Buffalo, NY (Denise E. O'Donnell, United States Attorney for the Western District of New York, on the brief), for Appellee.

Before: WALKER, Chief Judge, MINER and POOLER, Circuit Judges.

MINER, Circuit Judge:

Defendant-appellant Robert Grant ("Grant") appeals from an amended judgment of conviction and sentence entered in the United States District Court for the Western District of New York (Skretny, J.) to the extent that the amended judgment incorporates an order modifying a direction for the payment of restitution. The modification was based on the district court's determination that there had been a material change in Grant's economic circumstances since the time restitution was first ordered.

Grant challenges the district court's determination, contending that the existence of his inmate account, said to constitute the changed circumstances in the case, was known to the government at the time of his original sentence. The district court decided that, because its attention was drawn to the account only after sentence was first imposed, its belated awareness of the monies in the account constituted a material change in Grant's economic circumstances and therefore justified modification of the restitution requirement originally imposed. We affirm, but for reasons different from those given by the district court.

BACKGROUND

Grant was charged in a single count indictment with mail fraud, in violation of 18 U.S.C. 1341 and 2. According to the indictment, Grant, while an inmate in the custody of the New York State Department of Correctional Services, solicited and received money in varying amounts from a number of individuals with whom he corresponded pursuant to a fraudulent scheme. The scheme involved the placement of advertisements in a national gay magazine describing Grant's desire to enter into a "meaningful relationship." Grant corresponded with those who answered the advertisements, advising them that he was a homosexual in search of an enduring and intimate association. In many of the communications, Grant represented that he was about to be released and needed monies for a non-existent "pre-release fund." He also falsely represented to many individuals with whom he took up correspondence in this manner that he needed plane, train, or bus fare so he could come to live with them. In his quest for funds, Grant made false representations that he needed money to secure an early release.

Grant also falsely represented that he was harassed by prison officials because he was gay and therefore needed funds to finance the many legal actions that he brought because of the harassment. Other false representations made by Grant included the following: that prisons guards had stolen his money; that his release was held up due to lack of funds; that he needed money to pay court costs arising from his conviction; and that funds were needed for him to collect a $ 30,000 inheritance from his mother.

Apparently, Grant's pleas for funds fell on a large number of sympathetic ears. Between October 21, 1994 and May 12, 1998, approximately $ 34,000 was deposited into Grant's inmate account, most of it contributed by the individuals with whom Grant communicated. In large part, these funds were disbursed from the inmate account back to certain persons with whom Grant was corresponding and, through them, to third persons whose identities Grant wished to conceal from prison authorities. So successful was the re-disbursement of these funds that only $ 400 remained in the inmate account at the time of the restitution order that is the subject of this appeal.

Grant first raised the question of his entitlement to the $ 400 remaining in his account after his indictment and while still in the custody of the New York Department of Correctional Services at the Wende Correctional Facility at Alden, New York. The specific occasion was an oral argument held before Magistrate Judge Heckman on January 20, 1999, regarding suppression motions relating to his federal indictment. At that time, in the presence of his attorney and the Assistant United States Attorney, Grant addressed the following remarks to the Magistrate Judge:

I have [a] certain amount of funds on my account, and they will not allow me to spend it, and they have wrote a letter that because it was obtained--at what they say is illegally, that I can't have it until pending the outcome of this Court.

The Magistrate Judge responded that the matter would have to be taken up with the prison authorities because she had no jurisdiction over it. Grant then said: "No the prison, I have got the letter right from them, they are saying until this Court rules, they are not giving me my money because of the U.S. Attorney."

The Magistrate Judge answered Grant's statement regarding the need for a court ruling by stating: "Well, then I can't do anything more with that, you have to wait then until the case is over." Grant replied that he had "waited a year and a half" and that he "needed [his] money for other legal matters." The Magistrate Judge reiterated her determination that she lacked jurisdiction over the account and terminated further discussion of the matter.

On May 13, 1999, Grant entered a plea of guilty to the one-count mail fraud indictment pursuant to a plea agreement in which he essentially admitted all the accusations made in the indictment, including the accumulation of approximately $ 34,000 in his inmate account as the result of his illicit activities. In a pre-trial services report compiled prior to Grant's arraignment on November 4, 1998, an Assistant United States Probation Officer had written the following: "The defendant reported his only asset is $ 400 in a prison account which is currently frozen." This was the same account balance that Grant referred to in the proceeding before the Magistrate Judge described above.

The pre-sentence investigation report prepared in the probation office prior to Grant's sentencing noted that Grant was "indigent as he is virtually penniless." Whether Grant discussed the inmate account with Probation Officer Brian Burns during the pre-sentence interview by Burns is a question that has not been resolved in any court finding. It does appear that counsel for Grant submitted a statement acknowledging that he had reviewed the pre-sentence report with his client and that no information included in the report was disputed. On July 28, 1999, Grant filed a motion putting in issue the amount of restitution to be ordered at sentencing.

Prior to the imposition of the original sentence, written arguments were submitted to the district court regarding the amount of restitution, with Grant contending that a large portion of the $ 34,000 deposited was not the result of criminal activity but came from people who knew what kind of person he was and knew what they were doing. The government responded that while the money may have been "voluntarily" given, it was nevertheless given on the basis of false representations made by Grant. Ultimately, the court found that the restitution ordered would be lower than the loss amount because of the difficulties in establishing the identities and locations of the victims and the separate amounts to be recouped. A restitution figure of $ 5,690 was agreed upon, representing the losses sustained by four identified victims.

The sentence imposed upon Grant included confinement for a term of thirty-seven months to be served consecutive to his New York State sentence; supervised release for three years upon his discharge from prison; a special assessment in the sum of $ 100; and payment of restitution in the amount of $ 5,690 as follows: $ 25 per quarter while in confinement unless employed in certain prison industry classifications, in which case 50% of monthly pay would be required, and $ 200 per month while on supervised released.

Two months after sentencing, the government filed a motion to modify restitution, alleging that the court was unaware of the balance in the inmate account at the time of sentencing; that the money in the account was derived from Grant's fraudulent activities; and that the court sentenced Grant without full knowledge of his assets; and that this constituted a material change in Grant's economic circumstances warranting modification of the restitution portion of the sentence. Grant responded with a motion to deny modification, asserting that there had been no material change in his economic circumstances and that he did not willfully avoid the payment of restitution in the face of changed circumstances in any event.

The district court heard oral argument and ultimately issued a written order granting the government's motion to modify...