U.S. v. Duncan, 87-2618

Citation870 F.2d 1532
Decision Date21 March 1989
Docket NumberNo. 87-2618,87-2618
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Ovie L. DUNCAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

David J. Phillips (Charles D. Anderson, Federal Public Defender, with him on the brief), Asst. Federal Public Defender, D. Kansas, Kansas City, Kan., for defendant-appellant.

Julie A. Robinson (Benjamin L. Burgess, Jr., U.S. Atty., D. Kansas, with her on the brief), Asst. U.S. Atty., Kansas City, Kan., for plaintiff-appellee.

Before McKAY, McWILLIAMS and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This appeal is from an order of restitution entered by the district court following the defendant's guilty plea on one count of a fourteen-count indictment. The defendant, Ovie Duncan, claims on appeal that the district court erred in ordering restitution for the victim's losses associated with thirteen counts of the indictment for which he did not plead guilty. We affirm.

Duncan and his family lived in the same neighborhood as Mr. Zollie Monroe, an elderly man who was nearly blind. When the Duncans were to be evicted from their home, Monroe invited them to move in with him. Duncan apparently agreed to assist Monroe in paying bills and performing household chores as part of this living arrangement. This case arose out of Duncan's actions that allegedly took advantage of his relationship with Monroe and access to Monroe's funds.

A grand jury returned a fourteen-count indictment against Duncan in connection with his wrongful actions against Monroe. The first thirteen counts charged him with forging Monroe's endorsement on the back of checks drawn upon the United States Treasury, in violation of 18 U.S.C. Sec. 510(a)(1). Count fourteen charged him with violating 18 U.S.C. Sec. 1341 through devising a scheme to defraud Colonial Penn Life Insurance Company by submitting an application for life insurance through the mails that falsely represented Zollie Monroe as the applicant and falsely represented himself as Monroe's stepson, naming himself as beneficiary.

Pursuant to plea negotiations with the Government, Duncan agreed to plead guilty to count fourteen, and the Government agreed to dismiss the other thirteen counts after sentencing. The Government further agreed not to make any recommendations regarding Duncan's sentence, but the plea agreement otherwise did not cover the subject of restitution.

At Duncan's arraignment, the district court heard the Government's summary of evidence that would be presented if the case went to trial. This evidence included a description of the living arrangement, and the following additional information:

[T]he defendant, while in possession of about $600 a month from two government checks that Zollie Monroe received, failed to pay all the household bills, failed to buy groceries and to otherwise take care of Zollie Monroe as agreed.

Zollie Monroe for years had a life insurance policy with the Old American Life Insurance Company. Mr. Monroe's sister was the beneficiary of that policy. The defendant failed to pay the premiums on this policy as Zollie Monroe had instructed him to and the policy lapsed.

On September 14, 1986, the defendant sent through the U.S. mail a life insurance application to Colonial Penn Life Insurance Company in Philadelphia. The life insurance application contained false statements and was made on a false pretense, that being that the applicant was Zollie Monroe, when, in fact, the applicant was the defendant, who made the application in Zollie Monroe's name without Monroe's knowledge or authorization.

There was also a false statement in the application that the defendant was Zollie Monroe's stepson when, in fact, there was no familial relationship by blood or marriage. The application also made the defendant Zollie Monroe's beneficiary of this policy.

Duncan's counsel agreed to all of the material facts relating to the mail fraud, but he disputed some of the facts regarding the use of Monroe's funds from government checks. He conceded that some of Monroe's bills were left unpaid, but denied that Duncan had failed to buy groceries or failed to feed Monroe. The district judge accepted Duncan's guilty plea to the mail fraud charge in count fourteen of the indictment, but did not mention the possibility of restitution for any of the offenses charged in the indictment.

At the sentencing hearing, the court questioned Duncan about facts contained in the presentence investigation report that were related to counts one through thirteen of the indictment. Duncan's counsel disputed the amount of loss associated with counts one through thirteen, contending that at one time Duncan had permission to cash Monroe's checks. He contended that the Government could show neither when Duncan began cashing checks without permission nor how much of the proceeds was not spent for the care and support of Monroe. Although conceding that a portion of the proceeds from the forged government checks may not have been used for the benefit of Zollie Monroe, he denied that Duncan had taken the entire amount of the checks for his own benefit. Duncan's counsel noted that "there is a civil suit that is pending, that is filed, and it will raise all of these matters [relating to the amount of loss associated with Duncan's alleged forgery of government checks]."

The district court found by a preponderance of evidence from the arraignment and sentencing proceedings, including the presentence report, that Zollie Monroe was a victim pursuant to 18 U.S.C. Secs. 3663, 3364, who had sustained losses as a result of Duncan's criminal actions. With regard to count fourteen, to which Duncan pleaded guilty, the court found that Monroe had sustained a loss of $273, representing the cost of reinstating Monroe's lapsed life insurance policy. With regard to counts one through thirteen, the court found that Monroe had sustained a loss totaling $4,186, representing the total amount of the thirteen forged checks.

The court ordered Duncan to pay restitution in the total amount of $4,459, "or such lesser amount as shall be determined in the civil lawsuit now pending in the Wyandotte County District Court." The court restated its order as follows:

In other words, after a civil trial of this matter, if a lesser amount on these two specific items, the Veterans Administration checks and also the $273.00 that was involved in getting the insurance reinstated, if it's determined from those proceedings that a lesser amount is due on those two items, then that shall be the amount of restitution and this amount, whatever the final amount is, is to be paid to Zollie Monroe, the victim.

Duncan contends on appeal that the district court erred in two respects in ordering restitution for losses associated with counts one through thirteen of the indictment. First, he claims that the forgery activities charged in counts one through thirteen are unrelated to the mail fraud count to which he pleaded guilty, and that they therefore do not constitute part of the "offense" for which restitution can be awarded under pertinent provisions of the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. Secs. 3663, 3664. Second, he claims that the Government failed to prove such losses by a preponderance of the evidence as required by 18 U.S.C. Sec. 3364(d).

I.

Duncan's first claim involves the validity of the restitution order under the VWPA. An order of restitution under the VWPA is part of the sentencing process. United States v. Richard, 738 F.2d 1120, 1122 (10th Cir.1984). We review the legality of a sentence de novo. United States v. Angelica, 859 F.2d 1390, 1392 (9th Cir.1988). Sentencing that falls within the statutory limits, however, is reviewed only for an abuse of discretion. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir.1988); see Richard, 738 F.2d at 1122.

The VWPA provides in relevant part: "The court, when sentencing a defendant convicted of an offense under [Title 18] ... may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense." 18 U.S.C. Sec. 3663(a). Restitution may be ordered for "the amount of the loss sustained by any victim as a result of the offense." Id. Sec. 3664(a).

Duncan's claim in this case, that he cannot be ordered to make restitution for criminal acts for which he did not plead guilty, turns on the meaning of the term "offense" as used in the VWPA.

A.

The VWPA does not explicitly define the term "offense." We therefore must look to the intent of Congress as contained in the language and purposes of the Act to determine the meaning of this term. Congress enacted the restitutory provisions of the VWPA for the purpose of compensating victims of crimes: "[t]he legislative history of the VWPA indicates that Congress intended to enact a victim compensation scheme 'to restore the victim to his or her prior state of well-being' to the highest degree possible." United States v. Hill, 798 F.2d 402, 405 (10th Cir.1986) (quoting S.Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S.Code Cong. & Admin.News 2515, 2536).

This court relied on the compensatory purpose behind the VWPA in rejecting a restrictive interpretation of the term "offense" that would exclude losses caused by criminal acts which were not alleged in the indictment and for which the defendant was not convicted:

[I]n determining the amount of loss to a victim for purposes of awarding restitution under the VWPA, a district court is not limited either by the amount specified in the indictment or the specific transactions alleged in the indictment. Taking into consideration the evidence adduced at trial and the evidence presented in the sentencing phase of the case, a district court may order a defendant to pay restitution to any victim for the amount of loss sustained "as a result of the offense," [18 U.S.C. Sec. 3664(a)...

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