U.S. v. Battista

• Citation: 575 F.3d 226
• Decision Date: 06 August 2009
• Docket Number: Docket No. 08-3750-cr.
• Parties: UNITED STATES of America, Appellee, v. James BATTISTA, also known as Baba, also known as Sheep, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

575 F.3d 226

UNITED STATES of America, Appellee, v. James BATTISTA, also known as Baba, also known as Sheep, Defendant-Appellant.

Docket No. 08-3750-cr.

United States Court of Appeals, Second Circuit.

Argued: May 13, 2009.

Decided: August 6, 2009.

Jack McMahon, Philadelphia, PA, for Appellant.

Jeffrey Goldberg, Assistant United States Attorney (Jo Ann M. Navickas and Alexander A. Solomon, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before WALKER, WESLEY, WALLACE,^* Circuit Judges.

WESLEY, Circuit Judge:

Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. Battista was a co-conspirator, along with Thomas Martino, in the much-publicized National Basketball Association ("NBA") gambling scandal involving former referee Timothy Donaghy. Following guilty pleas by all three defendants, the NBA, and the United States on its behalf, sought restitution. The district court determined that each defendant was required to pay restitution to the NBA as a victim of their criminal offenses. Only Battista challenges the imposition of restitution on appeal. For the reasons that follow, we affirm the restitution order of the district court.

FACTS

Donaghy began his career as an NBA referee in September 1994 and continued in that position for thirteen seasons. He first began placing bets on NBA games, including games he officiated, during the 2003-04 season through his friend Jack Concannon. The conspiracy at issue here, however, began in December 2006 and continued until April 2007. Donaghy provided "picks" on NBA games, again including games he officiated, to co-conspirators Battista and Martino. Battista agreed to pay Donaghy a fee for each game in which Donaghy correctly picked the winner. Donaghy provided the picks to Martino, Martino relayed the information to Battista, and Battista placed the bets. According to the government, Donaghy and Martino devised a code for communicating picks over the telephone using the names of Martino's two brothers. If Donaghy mentioned Martino's older brother, the pick would be the home team; if Donaghy referred to Martino's younger brother, the pick would be the visiting team. In making his picks, Donaghy relied on, among other things, nonpublic information to which he had unique access by virtue of his position as an NBA referee. This information included his knowledge of the officiating crews for upcoming NBA games, the interactions between certain referees, players and team personnel, and the physical condition of players. During the course of the conspiracy, Martino met with Donaghy in several cities for the primary purpose of paying Donaghy for his correct predictions.

After the government discovered the gambling scheme, Donaghy agreed to cooperate with its investigation. Thereafter, in August 2007, Donaghy pleaded guilty to conspiracy to commit wire fraud in violation of 18 U.S.C. § 1343 and conspiracy to transmit wagering information in violation of 18 U.S.C. § 1084. In February 2008, Battista and Martino were both charged with conspiracy to commit wire fraud and conspiracy to transmit wagering information.¹ As pertinent here, the indictment alleged that Martino and Battista committed the following overt acts in furtherance of the conspiracy to transmit wagering information:

a. On or about December 13, 2006, MARTINO spoke with the NBA referee [Donaghy] by telephone regarding the NBA referee's pick for an NBA game.

b. On or about December 14, 2006, BATTISTA and MARTINO met with the NBA referee in Pennsylvania and gave a cash payment to the NBA referee.

c. On or about December 26, 2006, MARTINO spoke with the NBA referee by telephone regarding the NBA referee's pick for an NBA game.

d. On or about March 11, 2007, MARTINO met with the NBA referee in Toronto, Canada, and MARTINO gave a cash payment to the NBA referee.

(Indictment, ¶ 15). A few months later, Martino pleaded guilty to the wire fraud conspiracy charge and Battista pleaded guilty to the wagering conspiracy charge. Battista described his criminal conduct during his plea allocution:

[F]rom December of 2006 to March 2007, I was engaged in the business of sports betting, and I agreed with Tom Martino and Tim Dona[ghy] to use the telephone across state lines to obtain information to assist me in wagering on sporting events, on NBA basketball games. I received information from Tom Martino, who received his information from the NBA referee Tim Dona[ghy]. This agreement was formed during a meeting between the three of us, in a hotel in December of 2006. During the course of this agreement from time to time I directed Mr. Martino to do certain things such as having meetings with Mr. Dona[ghy].

Battista further admitted that he had met with Donaghy in Pennsylvania for payment.

The NBA, and the United States on its behalf, sought restitution against all three defendants. The NBA requested restitution for (1) Donaghy's compensation for the portions of the 2003-04, 2004-05, 2005-06, and 2006-07 seasons when he officiated games in which he had a financial interest; (2) that portion of the salaries of NBA employees attributed to reviewing the tapes of the games Donaghy refereed; and (3) attorneys' fees incurred by the NBA in connection with assisting the government in its investigation and prosecution.

After a comprehensive and particularized discussion of each restitution claim asserted by the NBA, the district court ordered the defendants to pay restitution in the total amount of $217,266.94, breaking down the portions owed by (1) all the defendants jointly and severally, (2) Battista and Martino jointly and severally, and (3) each defendant individually. See United States v. Donaghy, 570 F.Supp.2d 411, 436-37 (E.D.N.Y.2008). As relevant to the issues Battista raises on appeal, the district court concluded that the NBA was a "victim" of Battista's crime of conviction — conspiracy to transmit wagering information — under either the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A, or the Victim and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C. § 3663. The court determined that Battista's crime was covered by the MVRA, which applies to "offense[s] committed by fraud or deceit," 18 U.S.C. § 3663A(c)(1)(A)(ii), concluding that "the phrase `committed by fraud or deceit' appears to refer to the way in which a particular offense was carried out rather than its elements." 570 F.Supp.2d at 421. In the alternative, the court concluded that Battista was accountable for restitution under the VWPA and rejected the argument that his current unemployment and familial obligations foreclosed VWPA restitution. Id. at 421-23.

Battista appeals the district court's restitution order, arguing that: (1) the NBA was not a "victim" of the offense to which he pleaded guilty under either the MVRA or the VWPA; (2) his crime of conviction is not covered under either restitution statute; (3) attorneys' fees and investigative costs incurred by the NBA are not recoverable; and (4) his financial obligations were sufficiently burdensome to exempt him from paying restitution under the VWPA. For the following reasons, we reject Battista's contentions and affirm the district court order.

DISCUSSION²

The goal of restitution, in the criminal context, is "to restore a victim, to the extent money can do so, to the position he occupied before sustaining injury." United States v. Boccagna, 450 F.3d 107, 115 (2d Cir.2006). In the context of the MVRA, we have observed that "the statutory focus" is "on the victim's loss and upon making victims whole." United States v. Coriaty, 300 F.3d 244, 253 (2d Cir.2002). The procedures a sentencing court must follow in determining whether, and to what extent, to order restitution pursuant to the MVRA or the VWPA are set forth in 18 U.S.C. §§ 3663(d), 3663A (d), 3664. See United States v. Reifler, 446 F.3d 65, 113 (2d Cir.2006).

I. MVRA or VWPA?

Under the MVRA, restitution is mandatory for certain crimes, such as "an offense against property under this title ... including any offense committed by fraud or deceit." 18 U.S.C. § 3663A(c)(1)(A)(ii). A district court must order restitution where "an identifiable victim or victims has suffered a ... pecuniary loss." Id. § 3663A(c)(1)(B). In contrast to the MVRA, however, restitution under the VWPA is discretionary. The VWPA provides that "[t]he court, when sentencing a defendant convicted of [any] offense under this title ..., may order ... that the defendant make restitution to any victim of such offense." 18 U.S.C. § 3663(a)(1)(A) (emphasis added). The VWPA requires sentencing courts to consider the amount of the loss sustained by the victim as a result of the offense, the defendant's financial resources, the financial needs and earning ability of the defendant and the defendant's dependents, and other factors the court deems appropriate. See id. § 3663(a)(1)(B)(i) (I-II); United States v. Ben Zvi, 242 F.3d 89, 99 (2d Cir.2001). While the district court must review these statutory factors, detailed factual findings for each factor are not required. See United States v. Stevens, 211 F.3d 1, 6 (2d Cir.2000). Aside from the aforementioned differences, "the provisions of the VWPA and the MVRA are nearly identical in authorizing an award of restitution." United States v. Serawop, 505 F.3d 1112, 1118 (10th Cir.2007) (internal quotation marks and alteration omitted).

In this case, the district court determined that Battista's offense of conviction — conspiracy to transmit wagering information — was covered under the MVRA, reasoning that "the phrase `committed by fraud or deceit' appears to refer to the way in which a particular offense...