U.S. v. Bartsh, 92-147

• Decision Date: 13 January 1993
• Docket Number: No. 92-147,92-147
• Citation: 985 F.2d 930
• Parties: UNITED STATES of America, Appellee, v. Thomas Chisholm BARTSH, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 930

985 F.2d 930

UNITED STATES of America, Appellee, v. Thomas Chisholm BARTSH, Appellant.

No. 92-147.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1992.

Decided Jan. 13, 1993.

Kevin J. Short, Minneapolis, MN, argued, for appellant.

Thomas B. Heffelfinger, Minneapolis, MN, argued (Thomas B. Heffelfinger, Denise D. Reilly and Eric C. Nelson, on the brief), for appellee.

Before Judge JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Thomas Bartsh pleaded guilty to a two-count indictment charging him with interstate transportation of embezzled money in violation of 18 U.S.C. § 2314 and embezzlement by a court receiver in violation of 18 U.S.C. § 645. Bartsh was sentenced to 72 months imprisonment, three years of supervised release and was ordered to pay $1,064,517.52 in restitution. Bartsh challenges the sentence and amount of restitution. We affirm.

I. BACKGROUND

In December 1982, the Honorable Charles Weiner ¹ appointed Bartsh, a licensed attorney, as receiver in the civil case of In Re Flight Transportation Corporation Securities Litigation, Master Docket No. 4-82-874. As receiver, Bartsh claimed and received $1,558,451.15 for his services. Despite receiving this princely sum, Bartsh began embezzling money from the FTC estate sometime in 1987. In April, 1990, Judge Weiner called Bartsh to inquire what rate of interest the FTC estate fund was earning. When Bartsh told Judge Weiner the fund was earning 7.7%, Judge Weiner told Bartsh to turn over the fund to the clerk of the court so the account could earn a higher rate of interest. Bartsh sent three checks totalling $870,491 to the court; all three checks were returned for insufficient funds. The court immediately discharged Bartsh and ordered an audit of the funds handled by Bartsh.

Bartsh met with the FBI and admitted stealing in excess of $800,000 while acting as receiver. An accounting firm submitted a report to the court detailing a loss of over $1.5 million dollars, which included a calculation for lost interest that would have accrued on the account in the amount of $240,855.14. On September 13, 1991, Bartsh waived indictment and pleaded guilty to embezzlement by a receiver in violation of 18 U.S.C. § 645 and fraudulent interstate commerce in violation of 18 U.S.C. § 2314. In the plea agreement, the parties agreed that the amount of loss was between $800,000 and $2.5 million, and the final determination was left to the court. The agreement also provided that the court could sentence Bartsh up to a maximum period of ten years imprisonment and could order restitution not to exceed $1,586,974 plus interest.

The Presentence Report ("PSR") determined that Bartsh's base offense level was four and his criminal history category was I. Based on the auditor's report, the PSR determined that Bartsh's base offense level should be increased by 11 under § 2B1.1 of the United States Sentencing Guidelines ("U.S.S.G.") (1988) because the loss was between $1 million and $2 million dollars. Under the terms of the plea agreement, the offense level was further increased by two for more than minimal planning under § 2B1.1(b)(4), by two for abuse of public trust under § 3B1.3, and was reduced by two levels for acceptance of responsibility under § 3E1.1. The PSR determined that with Bartsh's total offense level of 17, his sentencing range was between 24 and 30 months. At sentencing, the court ² departed upward and sentenced Bartsh to 72 months, three years of supervised release and ordered Bartsh to pay $1,064,517.52 in restitution.

II. DISCUSSION

A. Amount of Loss

Bartsh argues the case must be remanded because the district court failed to make specific findings of fact regarding the amount of loss as required by Fed.R.Crim.Proc. 32(c)(3)(D) ³, and instead accepted the PSR's calculation of the amount of loss. We disagree. Bartsh entered into a plea agreement that stated the amount of loss was between $800,000 and $2.5 million dollars and left the final determination to the district court. Second, Bartsh urged the court to attach a copy of the auditor's report to the plea agreement in order to provide the district court with guidance in the matter; the report, like the PSR, indicated that Bartsh embezzled $1,564,517.52. Third, in both his written objections to the PSR and at the sentencing hearing, Bartsh failed to object to the PSR's determination of the amount of loss. Finally, the amount of loss calculation had no effect on Bartsh's sentence under U.S.S.G. § 2B1.1 (1988). Section 2B1.1 provides for a 11 level increase if the amount of loss is between $1 and $2 million dollars. Whether the amount of loss was $1.2 million as suggested by Bartsh or closer to $1.5 million as urged by the government, the amount is still within the Guideline range of $1 to $2 million. The court adopted the PSR and did not err in failing to make a specific finding of fact regarding the amount of loss.

Bartsh also contends the court erred in adopting the PSR because it included a lost interest calculation in its determination of the total amount of loss. The audit report revealed Bartsh embezzled $1,320,662.38; had interest accrued on this amount at the annual rates of return that the account yielded, the account would have earned an additional $240,855.14. The commentary to the U.S.S.G. § 2B1.1 states that " '[l]oss' means the value of the property taken, damaged, or destroyed." U.S.S.G. § 2B1.1, comment. (n. 2) (1988). Therefore, an accurate determination of the amount of loss must contain a calculation for lost interest. See United States v. Curran, 967 F.2d 5, 6 (1st Cir.1992) (court determined amount of loss to victims of an embezzlement scheme by relying on an auditor's report that included a determination for lost interest). The court did not err in adopting the PSR that calculated the amount of loss, including interest, to be $1,564,517.52.

B. Restitution

Bartsh argues the court erred in ordering restitution in the amount of $1,064,517.52. Bartsh first contends the court failed to credit him for $400,000 allegedly paid to maintain FTC property on Grand Cayman. District courts have wide discretion in sentencing, including the ordering of restitution. United States v. Lemire, 720 F.2d 1327, 1352-53 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984). "So long, then, as restitution in any particular case is designed to further rehabilitation of the defendant ... we should presumably uphold the order of the trial judge." Id. at 1353. Although Bartsh contends he was entitled to a $400,000 credit, he failed to bring the matter to the district court's attention at sentencing and left the final determination up to the district court.

As noted above, Bartsh signed a plea agreement that specifically stated that the court could enter restitution in an amount up to $1.5 million. Bartsh urged the court to include the audit as part of the plea agreement, which revealed that a total of $1,564,517.52 was misappropriated by Bartsh. At sentencing the court adopted the PSR's recommendation that Bartsh be given a $500,000 credit for a fidelity bond he forfeited and ordered Bartsh to pay $1,064,517.52. Because courts may order restitution "to the extent agreed to by the parties in a plea agreement," 18 U.S.C. § 3663(a)(3) (Supp.1991), we hold the district court did not err in ordering Bartsh to pay restitution within the terms of the plea agreement.

Bartsh also argues the court erred in failing to make any findings about his ability to pay. "This court and others have held that district courts have the right to order restitution even though the defendant is an indigent at the time the sentence is imposed." United States v. Means, 961 F.2d 120, 120 (8th Cir.1992). Although we encourage sentencing courts to make specific findings of fact about the defendant's financial resources, id., Bartsh was sentenced under the terms of a plea agreement and Bartsh did not object at the hearing. See United States v. Andersen, 928 F.2d 243, 245 (8th Cir.1991) (per curiam) (although should consider defendant's ability to pay restitution, defendant could not challenge restitution provision set out in plea agreement). Finally, Bartsh is protected by constitutional safeguards that allow him to assert his indigency at any future enforcement proceeding and he cannot be punished by incarceration for failure to pay his fine. Means, 961 F.2d at 121.

C. Sentence

Bartsh contends the court erred in departing upward from the Guidelines under 18 U.S.C. § 3553(b). Section 5K2.0 provides that "the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds 'that there exists an aggravating or mitigating circumstance of a kind, or to a degree not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.' " (quoting 18 U.S.C. § 3553(b)). U.S.S.G. § 5K2.0, p.s. In reviewing the court's decision to depart, we use a three step process: first, we determine whether the circumstances justify a departure, which we determine de novo; second, we look to see if the factual findings cited by the district court actually exist, which we review under the clearly erroneous standard; and third, we determine whether the degree of departure is unreasonable. United States v. Saunders, 957 F.2d 1488, 1492 (8th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 256, 121 L.Ed.2d 187 (1992).

In the first step, we determine whether the circumstances cited by the district court justify an upward departure. Bartsh presents two arguments. First, he argues the court failed to give specific reasons for its departure as required by 18 U.S.C. § 3553(c). We disagree. The court gave the following specific reasons for its departure:

Although a two-level increase has been applied here for abuse of trust under Section 3[B]...