U.S. v. Ekanem
Decision Date | 03 September 2004 |
Docket Number | No. 03-1615.,03-1615. |
Citation | 383 F.3d 40 |
Parties | UNITED STATES of America, Appellee, v. Emaeyek EKANEM, Defendant-Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Appeal from the United States District Court for the Southern District of New York, Leonard B. Sand, J.
Yuanchung Lee, The Legal Aid Society, New York, NY, for Defendant-Appellant.
Glen G. McGorty, Assistant United States Attorney (Jonathan S. Abernethy, Celeste L. Koeleveld, Assistant United States Attorneys, of counsel; David N. Kelley, United States Attorney for the Southern District of New York, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Appellee.
Before: CABRANES, STRAUB, and WESLEY, Circuit Judges.
Defendant Emaeyek Ekanem appeals from a judgment of conviction and sentence entered on October 10, 2003, in the United States District Court for the Southern District of New York (Leonard B. Sand, Judge). We consider here only defendant's contention that the District Court lacked authority to order restitution to the United States Department of Agriculture ("the Government") under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A ("MVRA"), and we hold, as a matter of first impression in this Circuit, that the Government fits within the meaning of "victim" under the MVRA. Accordingly, we affirm the order of restitution. In a summary order filed contemporaneously with this opinion, we address all other issues raised in this appeal.
During the time period relevant to the indictment, defendant was the executive director of Hope International, Inc. ("Hope"), a not-for-profit organization that ran various programs in the Bronx and in Africa. One of Hope's programs was to act as a sponsoring organization for private child care providers seeking reimbursement from the United States Department of Agriculture's Child and Adult Care Food Program ("CACFP") for meals the providers served to the children in their care. As a sponsoring organization, Hope, on a monthly basis, collected the child care providers' receipts, forwarded the receipts and other paperwork to CACFP, received funds from CACFP, and then issued reimbursement checks to the providers. [Blue Br. at 4-7; Red Br. at 2-4]
By superseding indictment filed in February 2003, defendant was charged with one count of embezzlement of CACFP funds, in violation of 18 U.S.C. § 641,2 and one count of intentional misapplication of the same federal funds, in violation of 18 U.S.C. § 666.3 [A11-12] In March 2003 defendant pleaded guilty, without a plea agreement, to both counts, and he admitted to the District Court that the amount of federal funds he misused was $85,000. [A23] As part of his sentence, the Court ordered defendant to make restitution to the Government in that amount pursuant to the MVRA, to compensate the Government for the misapplied funds. [A368]
On appeal, defendant argues that the District Court lacked authority under the MVRA to order restitution to the Government, on the basis that the Government is not a "victim" within the meaning of the MVRA. Defendant contends that the MVRA's definition of "victim" — as "a person directly and proximately harmed," 18 U.S.C. § 3663A(a)(2) (emphasis added) — is controlled by the definition of "person" contained in the Dictionary Act, 1 U.S.C. § 1,4 which generally excludes governmental entities, see United States v. United Mine Workers, 330 U.S. 258, 275, 67 S.Ct. 677, 91 L.Ed. 884 (1947).
We review de novo the District Court's interpretation of the MVRA to include the Government as a victim, see, e.g., Perry v. Dowling, 95 F.3d 231, 235 (2d Cir.1996) ( ), which is a question of first impression for this Court.
The MVRA provides for mandatory restitution to the victims of certain identified offenses, including, as relevant here, offenses against property. See 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii).5 The MVRA defines "victim" as "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered." Id. § 3663A(a)(2). As the Government concedes, this definition does not explicitly identify the Government as a possible victim.
But the meaning of "victim" under the MVRA, contrary to defendant's position is not controlled by the default definition of "person" in the Dictionary Act — which excludes the Government — because that definition does not apply if "the context [of a particular statute] indicates otherwise," 1 U.S.C. § 1; see also Rowland v. California Men's Colony, 506 U.S. 194, 199-200, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) ( ). For the reasons stated below, we conclude that the context of the MVRA indicates otherwise, so that the term "victim" as used in that statute is not limited by the default definition of "person" in the Dictionary Act but instead includes the Government.
We first note that the enforcement provisions of the MVRA, contained in 18 U.S.C. § 3664, recognize the Government as a possible victim. Section 3664(i) states: "In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution." 18 U.S.C. § 3664(i). Although § 3664 applies to all cases in which restitution is ordered — not only those cases in which the MVRA requires restitution — nothing indicates that Congress intended two different meanings when it used the same word in §§ 3663A and 3664(i) — related provisions adopted at the same time and codified in serial sections in the United States Code. See MVRA, Pub.L. No. 104-132, Title II, Subtitle A, §§ 204, 206, 110 Stat. 1227, 1227-29, 1235 (1996) (codified at 18 U.S.C. §§ 3363A, 3664 (1996)); cf. Bailey v. United States, 516 U.S. 137, 145-46, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995) ( ). Moreover, to read the term "victim" as used in the MVRA to not include the Government, we would have to conclude, contrary to a well-established canon of statutory construction, that § 3664(i)'s reference to the United States as a victim — a provision otherwise having meaning — is nevertheless meaningless with respect to restitution enforced by § 3664 but required by the MVRA. See Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249-50, 105 S.Ct. 2587, 86 L.Ed.2d 168 (1985) ( ).
Another reason to reject defendant's claim is this Court's interpretation of the term "victim" under the Victim and Witness Protection Act, 18 U.S.C. § 3663 ("VWPA"), to include governmental entities. See United States v. Helmsley, 941 F.2d 71, 101 (2d Cir.1991) ( ). Our decision in Helmsley is relevant because the MVRA was enacted as a supplement to, and amendment of, the VWPA, and, since 1996 — when the MVRA was enacted and the VWPA amended — the two statutes have used the same definition of "victim." See Pub.L. No. 104-132, Title II, Subtitle A, §§ 204, 205, 110 Stat. at 1228, 1230. Although Helmsley concerned an earlier version of the VWPA, which did not define the term "victim," see 18 U.S.C. § 3663(a) (1988), "[c]ourts [have] always considered the Government a `victim' under the VWPA and we can presume that Congress was aware of this interpretation when it enacted the 1996 amendments [under the MVRA]," United States v. Martin, 128 F.3d 1188, 1192 (7th Cir.1997); id. at 1191 (collecting cases); see also United States v. Lincoln, 277 F.3d 1112, 1114 (9th Cir.2002) ().
Finally, interpretation of the term "victim" under the MVRA to include the Government, as in the VWPA, is consistent with the intent and purpose of the MVRA to expand, rather than limit, the restitution remedy. See S.Rep. No. 104-179, at 12 (1995), reprinted in 1996 U.S.C.C.A.N. 924, 925 ) ; id. at 13, reprinted in 1996 U.S.C.C.A.N. at 926 ( ); see also Martin, 128 F.3d at 1190 ( ). Various provisions of the MVRA demonstrate this expansive purpose. See, e.g., 18 U.S.C. § 3663A(a)(1) ( ); id. § 3664(f)(1)(A) ; see also United States v. Johnson, 378 F.3d...
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...of 1996, 18 U.S.C. § 3663A—which included 18 U.S.C. § 2259—was “to expand, rather than limit, the restitution remedy.” U.S. v. Ekanem, 383 F.3d 40, 44 (2d Cir.2004); see also S.Rep. No. 104–179, at 22–23 (1996), reprinted in 1996 U.S.C.C.A.N. 924, 933. Moreover, Congress omitted any mention......
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