U.S. v. Golino

• Decision Date: 24 February 1997
• Docket Number: No. 95 CR 70 (JBW).,95 CR 70 (JBW).
• Citation: 956 F.Supp. 359
• Parties: UNITED STATES of America, Plaintiff, v. Steven GOLINO, Defendant.
• Court: U.S. District Court — Eastern District of New York

Page 359

956 F.Supp. 359

UNITED STATES of America, Plaintiff, v. Steven GOLINO, Defendant.

No. 95 CR 70 (JBW).

United States District Court, E.D. New York.

February 24, 1997.

Zachary Carter, United States Attorney, Brooklyn, NY by Michele L. Adelman, for U.S.

Donna R. Newman, Jersey City, NJ, for Defendant.

MEMORANDUM AND ORDER

WEINSTEIN, Senior District Judge:

                  I Introduction ................................................................ 360
                 II Procedural History .......................................................... 360
                III Solving the Problem of Fixed Obligations and Unpredictable Asset and Income
                    Fluctuation ................................................................. 361
                    A. Porter Rule ................................................... 361
                    B. Problem of Potential Asset and Income Fluctuation ........................ 361
                    C. Methods of Addressing Asset and Income Fluctuation ....................... 362
                       1. Fixed Installments of a Fixed Amount .................................. 362
                       2. Declining to Order Restitution ........................................ 363
                       3. Probation Department to Ensure Good Faith Compliance .................. 364
                       4. Pre-Sentence Recommendation From Probation Department ................. 364
                

                       5. Fixed Installment Schedule and Post-Sentence Modification ............. 364
                          a. 1996 Mandatory Victim Restitution Act Procedures ................... 365
                          b. Application of 1996 Procedures to pre-Act Offenses ................. 366
                IV Conclusion ................................................................... 366
                

I Introduction

This cause for resentencing after remand from the court of appeals presents the vexing and heretofore largely unaddressed problem of balancing a defendant's obligation to pay restitution with existing and future obligations to pay child and other support, where it is not clear that the defendant will have, over the course of a restitution payment period, adequate earnings and assets to cover both obligations. The problem is how, given the likelihood of largely unpredictable changes in defendant's circumstances and fluctuation in earnings and assets, a sentencing court can reasonably protect the victims, the public, and defendant's family over the short and long term without abdicating its obligation to provide a fixed sentence and reasonable control during any supervised release or probationary period.

For the reasons stated below, defendant is ordered to pay restitution of $18,022.64 at the rate of $100 per week. Should this amount prove to be so burdensome as to limit defendant's ability to pay child support, the United States Attorney, defense counsel or the Probation Department may notify the court so that the order may be modified.

II Procedural History

Defendant, following a jury trial in which he was found guilty of two counts of unauthorized use of credit cards, 18 U.S.C. § 1029(a)(2), was sentenced to a prison term of fourteen months and a supervised release term of three years. The court, noting that defendant was "capable of earning money sufficient to make restitution," ordered defendant to pay $18,809.49 restitution in $100 weekly installments. Upon the government's showing that defendant owed his ex-wife over $23,000 in child support payments, the court noted that "a priority shall be given to payments due to his wife as support, and the $100 is only payable after that, if he has enough assets."

At a later hearing the court adjusted the restitution amount to $18,022.64 — $11,338.01 to AT&T and $6,484.63 to Signet Bank, the two victims. The court's written judgment, dated April 3, 1996, states: "Restitution is payable upon defendant's release from prison as set by the Probation Department at no more than $100.00 per week. Priority is to be given to child support payments to the defendant's ex-wife." It was the court's view that the Probation Department would be in the best position to monitor fluctuations in defendant's ability to meet these two obligations and to ensure that if the burdens were to become too onerous the child support payments would be given priority and the restitution installment payments adjusted.

Defendant appealed the imposition of restitution, arguing that the court (1) abused its discretion by ordering the payment of restitution, and (2) improperly delegated to the Probation Department the task of setting the amount and timing of payments.

The court of appeals affirmed the restitution order, United States v. Golino, slip op. at 3 (2d Cir., Dec. 18, 1996), but found that the sentencing court's written judgment impermissibly delegated to the Probation Department authority to determine the amount of the weekly restitution payments. See also, United States v. Porter, 41 F.3d 68, 71 (2d Cir.1994) (sentencing judge may not authorize a probation officer to "make post-sentencing decisions as to either the amount of restitution ... or scheduling of installment payments"); but cf. United States v. Lilly, 80 F.3d 24, 29 (1st Cir.1996) (contra). It remanded the case for resentencing "in a manner that does not authorize a probation officer to make post-sentencing decisions about the amount of restitution or the scheduling of payments." United States v. Golino, slip op. at 3.

III Solving the Problem of Fixed Obligations and Unpredictable Asset and Income Fluctuation

A. Porter Rule

United States v. Porter stands for the proposition that the often detailed calculations involved in ordering restitution, such as the responsibility for determining installment payments and setting the schedule for payments pursuant to section 3663(f) of Title 18 of United States Code, are inherently judicial functions that cannot be delegated by the sentencing court. Porter, 41 F.3d 68, 71 (2d Cir.1994) (no delegation to the Probation Department); United States v. Mortimer, 94 F.3d 89, 90 (2d Cir.1996) (no delegation to the Bureau of Prisons' Inmate Financial Responsibility Program); see also, United States v. Kassar, 47 F.3d 562, 568 (2d Cir. 1995) (Porter rule applies to fines; court may not delegate to Probation Department the determination of the schedule of installment payments for a fine). The majority of circuits that have considered this issue agree. See, e.g., United States v. Graham, 72 F.3d 352, 357 (3d Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1286, 134 L.Ed.2d 230 (1996); United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir.1995); United States v. Albro, 32 F.3d 173 (5th Cir.1994); United States v. Gio, 7 F.3d 1279 (7th Cir.1993); cf. Dougherty v. White, 689 F.2d 142, 145 n. 1 (8th Cir.1982) ("better practice" for sentencing court to set amount of restitution); but see United States v. Barany, 884 F.2d 1255, 1260 (9th Cir.1989) (court must fix the maximum amount, but may delegate to the probation officer issues of timing and manner of payment), cert. denied, 493 U.S. 1034, 110 S.Ct. 755, 107 L.Ed.2d 771 (1990).

The appropriate practice has not been fully defined. In at least one instance after Porter, for example, the court of appeals affirmed a restitution order that appeared to involve some delegation to the Probation Department. See United States v. Giwah, 84 F.3d 109, 115 (2d Cir.1996) (leaving undisturbed court's order that defendant pay $79,000 restitution at a rate of "at least" 15% of defendant's annual gross income).

Porter and like cases are based on the principle that Article III of the United States Constitution imposes limitations on the duties that a court may delegate to nonjudicial officers. See United States v. Johnson, 48 F.3d 806, 808-09 (4th Cir.1995). Sections 3663 and 3664 of Title 18 impose upon the sentencing court the responsibility to set the terms of restitution. See, e.g., 18 U.S.C. § 3663(f) ("The court may require that such defendant make restitution under this section within a specified period or in specified installments") (emphasis added). Although probation officers are appointed by and serve the district court and are required to perform a number of duties in the court's service, including "perform[ing] any other duty that the court may designate," see 18 U.S.C. § 3603(9), section 3663's grant of authority to the court to set the terms of restitution must be read as exclusive. The Probation Department may not perform this duty. The imposition of sentence is a core judicial function, and determination of the timing and schedule of restitution installment payments is not the type of duty that may be delegated. See Ex parte United States, 242 U.S. 27, 41, 37 S.Ct. 72, 74, 61 L.Ed. 129 (1916) (imposition of punishment is a judicial function); Whitehead v. United States, 155 F.2d 460, 462 (6th Cir.) ("Fixing the terms and conditions of probation is a judicial act which may not be delegated"), cert. denied, 329 U.S. 747, 67 S.Ct. 66, 91 L.Ed. 644 (1946).

This is a sound legal conclusion. Yet, it poses a number of practical difficulties, which are outlined and dealt with below.

B. Problem of Potential Asset and Income Fluctuation

Frequently, at the time of sentencing, a defendant is without sufficient assets to pay restitution in a lump sum. Recognizing this, as well as the fact that a defendant's indigence may be temporary and that he or she may have the capacity to earn money in the future, Congress enacted subsection 3663(f) of Title 18, enabling a court to order restitution payment in installments. The statute did not solve the problem of forecasting a defendant's ability to pay. There remains the issue of how to accommodate likely shifts over the installment period in a defendant's ability to pay as a result of changes in life circumstances, from promotions and demotions, to rent increases, lottery winnings, book royalties, unexpected medical expenses, and other unpredictable and sometimes quotidian events. Such shifts in income and expenses reverberate beyond encumbering a defendant's ability to pay...