U.S. v. Futrell

• Decision Date: 20 April 2000
• Docket Number: No. 99-2163,99-2163
• Citation: 209 F.3d 1286
• Parties: (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth FUTRELL, Royce E. Futrell, Defendants-Appellants. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1286

209 F.3d 1286 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee, v. Elizabeth FUTRELL, Royce E. Futrell, Defendants-Appellants.

No. 99-2163

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 20, 2000.

Appeals from the United States District Court for the Middle District of Florida. (No. 98-00117-CR-T-23E), William J. Castagna, Judge.

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:

This case involves, among other things, two issues of first impression in this circuit concerning the application of the Mandatory Victims Restitution Act of 1996, 18 U.S.C. 3663A ("MVRA"). Appellants' first issue posits whether the MVRA applies to acts in an ongoing conspiracy that began prior to the MVRA's date of enactment but concluded subsequent to the MVRA's enactment. The second issue is whether the district court may reasonably approximate the actual damage to the victim for the purpose of assessing restitution under the MVRA. Appellants also assert that the district court erred by failing to consider their ability to pay when setting the amount of restitution.

I.

In March of 1978, Royce Futrell ("Mr. Futrell") fell and injured himself while working on a construction site for the Tennessee Valley Authority ("TVA"). Unable to work, he began receiving benefits from the United States Department of Labor, Office of Workers' Compensation Programs ("OWCP") in December of 1978. When the OWCP approved Mr. Futrell's long term disability payments, it informed him that should he return to work, he must notify the OWCP immediately, and return any disability checks he received after returning to work. Thereafter, Mr. Futrell occasionally responded to questions sent by the OWCP regarding the status of his employment and disability. In each response, Mr. Futrell attested that he had not worked for anyone and had not received income from self-employment during the period covered by the questionnaire.

In 1997, the Department of Labor investigated Mr. Futrell and discovered that he had been driving a tractor-trailer truck for his wife's trucking company, Futrell Trucking. In August of that year, while testifying before a federal grand jury investigating whether Mr. Futrell had been working while receiving government disability payments, Mr. Futrell's wife, Elizabeth, denied that Mr. Futrell was involved in Futrell trucking in any capacity.

On March 25, 1998, the grand jury returned an indictment charging Mr. and Mrs. Futrell (the "Futrells") each with one count of conspiracy to make and use a false statement in connection with the receipt of federal disability benefits in violation of 18 U.S.C. 371. The indictment also charged Mr. Futrell with five counts of making false statements beginning in January 1994, through March 1997, in connection with the receipt of federal disability benefits, in violation of 18 U.S.C. 1920, and charged Mrs. Futrell with one count of making a false declaration under oath to a federal grand jury, in violation of 18 U.S.C. 1623.

A jury convicted Mr. Futrell on all counts, convicted Mrs. Futrell of conspiracy, but found her not guilty on the perjury charge. At sentencing, the district court sentenced Mr. Futrell to 15 months imprisonment, to be followed by three years of supervised release. The district court sentenced Mrs. Futrell to three years probation and ordered both defendants to pay jointly a total of $100,244.82 in restitution to the TVA.

Mr. Futrell appeals his convictions for making false statements, alleging that the district court abused its discretion in refusing to deviate from the pattern jury instructions for 18 U.S.C. 1920. Mrs. Futrell appeals her conspiracy conviction, challenging the sufficiency of the evidence. In conjunction with the district court's assessment of restitution, the Futrells assert that the district court's order of restitution under the MVRA violated the Ex Post Facto Clause because part of the criminal conspiracy occurred before the enactment of the MVRA. The Futrells also challenge the district court's use of an estimate to assess restitution in the amount of $100,224.82, as well as its failure to consider their alleged inability to pay the amount of restitution ordered.

II.

This court reviews a district court's refusal to give a proposed jury instruction for an abuse of discretion. See United States v. Schlei, 122 F.3d 944, 969 (11th Cir.1997). We review challenges to the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government. See United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir.1999). Our analysis of the district court's restitution order involves three standards of review. See United States v. Shugart, 176 F.3d 1373, 1375 (11th Cir.1999). First, whether the term "amount of loss" in 18 U.S.C. 3664(e) contemplates the use of an estimation is a legal question, which we review de novo. See id. The district court's decision to allow an estimate of the victim's loss in a particular case is subject to review for an abuse of discretion. See id. The district court's factual finding as to the specific amount of restitution is reviewed for clear error. See id. "A defendant's claim that his or her sentence was imposed in violation of the Ex Post Facto Clause presents a question of law, and we review questions of law de novo." United States v. Logal, 106 F.3d 1547, 1550-51 (11th Cir.1997). Finally, the district court's refusal to consider the Futrells' ability to pay restitution is a matter of statutory interpretation, which we review de novo. See United States v. Pemco Aeroplex, Inc., 195 F.3d 1234, 1236 (11th Cir.1999) (en banc ).

III.

Having reviewed the record, we conclude that Mrs. Futrell's sufficiency claim lacks merit. Likewise, because the district court's jury instructions adequately and correctly addressed the elements of Mr. Futrell's charged offenses as well as his defenses, we affirm the district court's decision not to deviate from the pattern jury instructions. In sum, we reject these two claims without further discussion.¹

IV.

The Futrells present three additional issues two of which concern matters of first impression in this circuit. First, the Futrells argue that the district court should have proceeded under the prior statute-the Victims and Witness Protection Act of 1982 (VWPA), 18 U.S.C. 3663-rather than the MVRA. Second, the Futrells assert that the district court's assessment of restitution based on an estimated value for damage to the victim constitutes a violation of the MVRA. Finally, the Futrells argue that the district court erred by failing to consider their ability to pay when assessing the amount of restitution.

A.

The Futrells assert that the VWPA applies, rather than the MVRA, because the conspiracy began before the effective date of the MVRA. Thus, they contend that the district court's non-compliance with the VWPA constitutes reversible error. The government argues that the district court properly applied the MVRA because the conspiracy continued after the MVRA's effective date.

A jury convicted the Futrells of participating in a conspiracy that spanned between October of 1992, and March 25, 1998. Because the conspiracy continued until March of 1998, the district court sentenced the Futrells in accordance with the MVRA, 18 U.S.C. 3663A-3664, which went into effect on April 24, 1996, the statute's enactment date. We have already determined that the MVRA clearly does not apply to a defendant whose criminal conduct occurred and ceased prior to April 24, 1996. See United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir.1998). We have not, however, decided in a published opinion whether the MVRA applies to criminal conduct which began prior to April 24, 1996, and continued after that date, but we have addressed this issue in an unpublished opinion. See United States v. Pearlmutter, No. 99-2332, 203 F.3d 840 (Nov. 24, 1999) (unpublished opinion). Although an unpublished opinion is not binding on this court, it is persuasive authority. See 11th Cir. R. 36-2. Pearlmutter holds that if the MVRA takes effect during an ongoing conspiracy, then the MVRA subjects the conspiratorial acts occurring before the statutory change to the new provision. See Pearlmutter, at 3-4; see also United States v. Nixon, 918 F.2d 895, 906 (11th Cir.1990) (applying Sentencing Guidelines to a conspiracy conviction where the conspiracy commenced before the enactment of the guidelines, but continued after enactment of the guidelines); United States v. Wells Fargo Armored Serv. Corp., 587 F.2d 782, 782 (5th Cir.1979) (applying a 1974 felony statute to a conspiracy which ran from 1968 to 1975). The ongoing nature of the conspiracy enables application of the new statute without violating the Ex Post Facto Clause. See Pearlmutter, at 3-4; United States v. Terzado-Madruga, 897 F.2d 1099, 1123 (11th Cir.1990) (concluding that a conspiracy which began before the effective date of the Sentencing Guidelines but continued after the effective date of the Guidelines "was committed after the effective date" because conspiracy is a continuing offense). Following the logic in Pearlmutter, we conclude that the MVRA applies to an ongoing conspiracy where the conspiracy began before the statute's effective date, but concluded after the statute's effective date. Therefore, we hold that the district court correctly applied the provisions of the MVRA when sentencing the Futrells.

B.

The Futrells also argue that the district court erred in ordering a restitution amount based upon an estimation. At the sentencing hearing, William Franson from the OWCP testified that he calculated the government's loss using information from the TVA and Mr. Futrell's gross income as stated on his income tax returns.² The OWCP erred in its calculation, however, by incorrectly using Mr. Futrell's gross income instead of his net income. Rather than recalculating the amounts, the...