U.S. v. Barany

• Decision Date: 07 September 1989
• Docket Number: No. 88-1090,88-1090
• Citation: 884 F.2d 1255
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Melinda BARANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1255

884 F.2d 1255

UNITED STATES of America, Plaintiff-Appellee, v. Melinda BARANY, Defendant-Appellant.

No. 88-1090.

United States Court of Appeals, Ninth Circuit.

Argued April 4, 1989.

Submitted April 25, 1989.

Decided Sept. 7, 1989.

David J. Simon, Mill Valley, Cal., for defendant-appellant.

Rodolfo M. Orjales, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before POOLE, REINHARDT and O'SCANNLAIN, Circuit Judges.

POOLE, Circuit Judge:

Melinda Barany appeals her conviction by a jury on three counts of mail fraud, 18 U.S.C. Sec. 1341, alleging that the variance between the indictment and the proof at trial violated her right to a unanimous jury verdict. She further contends that the district court's restitution order is impermissibly vague and that any requirement of restitution should be limited to the amount of loss charged in the indictment.

I.

In November 1983, Barany's apartment was allegedly burglarized over the Thanksgiving weekend while she was away. She submitted a claim for the stolen items to her insurance company, American Star, which paid her claim in full in two drafts of $12,162.50 and $40,000.

In 1985 Barany had personal property coverage from Hartford Insurance Company. She reported another burglary after being away for the Thanksgiving weekend. After notifying the police, she prepared an insurance loss notice claiming that approximately $92,000 worth of personal property had been stolen from her apartment. Hartford paid her an initial $10,000 advance, but then became suspicious of her claims and withheld further payments.

In September 1986 Barany filed a civil action against Hartford alleging breach of contract and bad faith for delaying action on her claim. Apparently that case is still pending in state court at this writing.

On June 2, 1987 an indictment was returned charging Barany with a scheme to defraud her insurance companies by filing fraudulent claims. It alleged five counts of mail fraud in violation of 18 U.S.C. Sec. 1341. The scheme was outlined in prefatory language that preceded the text of Count 1. It referred to a period commencing in 1983 and ending in early 1986. Counts 1 and 2 alleged that Barany had used the mails to receive the two drafts issued by American Star in connection with the 1983 incident. Counts 3, 4 and 5 alleged that she had used the mails to send the notice of loss, to receive the $10,000 advance from Hartford and to send a contents inventory for the alleged burglary in 1985.

The government dismissed Count 2 at the beginning of trial. After a four day trial, the jury found Barany not guilty of Count 1 and guilty of Counts 3, 4 and 5. The trial judge sentenced her to two one-year sentences to be served concurrently on Counts 3 and 4. On Count 5, an additional one year sentence was suspended and Barany ordered placed on probation for five years following her release from custody. As a condition of her probation, the court ordered Barany to make restitution "under the direction of the Probation Office."

Barany now appeals her conviction and sentence. We have jurisdiction under 28 U.S.C. Sec. 1291.

II.

The indictment charged Barany with devising a scheme "in which certain insurance companies were induced into issuing insurance checks to defendant for losses due to residential burglaries falsely reported by defendant." The claims made to American Star in 1983 and Hartford in 1985 were alleged to be parts of this scheme. The jury found her guilty only of those counts relating to the 1985 incident.

The appellant contends that her right to a unanimous jury verdict guaranteed by Article III, Sec. 2 of the Constitution and the Sixth Amendment was violated because the indictment alleged a single scheme, while the evidence presented at trial could be interpreted as proving one overall scheme or two separate schemes to defraud. She claims that this variance between the allegations of the indictment and the proof raised a substantial danger of jury confusion which prejudiced her right to a fair trial. She relies primarily upon several cases in which we reversed convictions because it could not be said with certainty that all of the jurors had found the defendant guilty of the same criminal offense.

The cases cited by appellant all involved broadly written indictments which could be read to encompass a single or multiple conspiracies. For example, in United States v. Echeverry, 698 F.2d 375, modified 719 F.2d 974 (9th Cir.1983), the defendant was charged with conspiracy to distribute cocaine between December 1980 and June 1981. At trial, evidence was offered of cocaine sales that occurred in December 1980 and June 1981. The defendant was convicted and on appeal, we wrote that

[w]e have no means by which we may be certain that some portion of the jury, in casting a guilty ballot, did not envision a December conspiracy and failed to find enough evidence to believe that there was a June conspiracy, while other jurors envisioned a June conspiracy and not a December conspiracy. We are not free to hypothesize whether the jury indeed agreed to and was clear on the duration of a single conspiracy or of multiple conspiracies.

Id. at 377. Given the ambiguity inherent in the conspiracy charge, we held that the district court should have specifically instructed the jury that they must unanimously agree on the dates of any conspiracy in which they found the defendant had participated. The failure to do so constituted reversible error. Id.

Similarly, in United States v. Gordon, 844 F.2d 1397 (9th Cir.1988) and United States v. Mastelotto, 717 F.2d 1238 (9th Cir.1983), each count of the indictments charged the defendants with more than one scheme to defraud. It was quite possible that a divided jury--some finding guilt on one theory, others on a different theory--could nevertheless agree to a guilty verdict on each count. In both cases we concluded that in the absence of a corrective instruction that the jurors must agree on the existence of the same scheme to defraud, the danger of a nonunanimous jury verdict warranted reversal.

In this case, no reasonable possibility of a nonunanimous jury verdict existed. Although the indictment overall alleged a scheme to defraud which encompassed both the 1983 and 1985 insurance claims, each count charged in the indictment was sufficiently precise as to be susceptible of only one interpretation. By acquitting Barany of Count 1 and convicting her of Counts 3, 4 and 5, the jury clearly concluded that the government had not sustained its burden of proving that the 1983 claim was false, but agreed with the government that the 1985 claim was fraudulent.

The mere fact that Barany was convicted of a fraudulent scheme more limited in scope, but wholly included in the scheme alleged in the indictment does not violate her rights. United States v. Miller, 471 U.S. 130, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985). Because the jury verdict was undoubtedly a unanimous one, any variance which might arguably exist between the indictment and the proof at trial would not be such as to prejudice Barany's rights.

III.

We have difficulty with the district court's restitution order which Barany also challenges. The judgment states that "as a special condition of probation, the defendant shall make restitution under the direction of the Probation Office." It makes no further mention of the amount or terms of the restitution imposed.

At the sentencing hearing, the district court inquired into the possibility of ordering restitution. In the presentence report, the probation officer had estimated that Hartford was owed $94,393 in restitution. This figure was calculated by adding the $10,000 advance Hartford had paid Barany on her 1985 claim and $84,393 in attorney's fees and costs which Hartford spent defending against her civil suit.

In announcing Barany's sentence the court ordered "that she make restitution under the direction of the probation officer of this court." When both the probation officer and the attorney for the government asked for clarification, the court specifically declined to adopt the amount suggested in the sentencing report. Instead, the court stated that it was giving "broad authority" to the probation officer "to require proper restitution based upon her ability to pay."

The appellant contends that such a restitution order is impermissibly vague because the district court never determined the amount to be paid. In addition, she argues that restitution cannot exceed $10,000, the amount of Hartford's loss charged in the indictment.

We review the legality of a sentence de novo. United States v. Youpee, 836 F.2d 1181, 1182 (9th Cir.1988). If a sentence is within statutory limits, however, we review for abuse of discretion. Id.

A threshold question in determining the validity of the restitution order is whether it was entered pursuant to the Federal Probation Act, 18 U.S.C. Sec. 3651 (the Probation Act), or the Victim and Witness Protection Act, 18 U.S.C. Secs. 3663, 3664 (formerly Secs. 3579, 3580) (the VWPA). The Probation Act, which was repealed effective November 1, 1987, authorized the imposition of restitution as a condition of probation. The VWPA, effective January 1, 1983, does not limit restitution to cases involving probation, but permits a court to order restitution as a part of sentencing in any criminal case. Barany was convicted of offenses committed between January 1, 1983 and November 1, 1987, when both statutes were in effect. Because the district court's restitution order could have been entered under either the Probation Act or the VWPA, we examine its legality under both statutes.

A.

Under the Probation Act, a probationer "may be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." 18 U.S.C. Sec. 3651 (emphasis...