U.S. v. Graham

• Decision Date: 18 December 1995
• Docket Number: No. 94-1370,94-1370
• Parties: UNITED STATES of America v. Vincent K. GRAHAM a/k/a Sean G. Powell a/k/a Scott J. Christensen a/k/a Peter J. Bergmann a/k/a Stephen T. Ludwig a/k/a Charles D. Stuart a/k/a John T. Connelly a/k/a Peter A. Markellos a/k/a Joseph T. Kelly a/k/a Thomas Damus, Jr. a/k/a Michael Johnson a/k/a Donald Canale, Vincent Graham, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 352

72 F.3d 352

UNITED STATES of America v. Vincent K. GRAHAM a/k/a Sean G. Powell a/k/a Scott J Christensen a/k/a Peter J. Bergmann a/k/a Stephen T. Ludwig a/k/a Charles D. Stuart a/k/a John T. Connelly a/k/a Peter A. Markellos a/k/a Joseph T. Kelly a/k/a Thomas Damus, Jr. a/k/a Michael Johnson a/k/a Donald Canale, Vincent Graham, Appellant.

No. 94-1370.

United States Court of Appeals Third Circuit.

Argued Sept. 11, 1995.

Decided Dec. 18, 1995.

Jerry S. Goldman (Argued), Jerry S. Goldman & Associates, Philadelphia, PA, for appellant.

Michael R. Stiles, United States Attorney, Walter S. Batty, Jr., Assistant United States Attorney, Chief of Appeals, Mary E. Crawley, (argued), Roland B. Jarvis, Assistant United States Attorneys, Philadelphia, PA, for appellee.

Before: MANSMANN, SCIRICA and NYGAARD, Circuit Judges.

OPINION OF THE COURT

MANSMANN, Circuit Judge.

In this criminal case, Vincent K. Graham appeals from the sentence imposed after he pled guilty to charges of conspiracy involving counterfeit securities and other related charges pertaining to a scheme to defraud financial institutions. Specifically, Graham asks us to decide whether the district court incorrectly imposed restitution, pursuant to the Victim and Witness Protection Act, 18 U.S.C. Secs. 3579-3580 (1982), in light of his financial inability to pay restitution. Because the district court, utilizing the current AO Form 245B which has subsequently been changed, ¹ indicated that the restitution payments were to be made in installments which the probation officer could establish and periodically modify, Graham contends that the district court improperly delegated, to the probation office, the authority to designate the timing and amount of restitution payments.

In addition, Graham asserts that his sentencing hearing was improperly tainted by information proffered to the court at the sentencing hearing of Graham's co-defendant. Finally, we are asked to address whether Graham's Sixth Amendment right to counsel was denied as a result of the district court's allegedly inadequate compensation of Graham's court appointed counsel pursuant to the Criminal Justice Act, 18 U.S.C. Sec. 3006A(d).

We hold that the district court did not make the necessary factual finding regarding Graham's financial ability to comply with the restitution order and that AO Form 245B improperly delegates to the probation office the determination of the amount and timing of restitution installment payments. We will thus vacate the judgment of the district court and remand for further proceedings. We will dismiss the Criminal Justice Act claim, couched as a violation of Graham's Sixth Amendment right, for lack of jurisdiction.

I.

On or about December 9, 1992, David L. Wells and Vincent K. Graham were arrested at a branch of the Meridian Bank located in Upper Darby, Pennsylvania, while attempting to withdraw money from an automatic teller machine. Pursuant to a fraudulent scheme devised by Graham, Graham and his co-conspirators passed counterfeit, forged bank checks by depositing them in "dummy" bank accounts and withdrawing the proceeds before the financial institutions were able to discover the fraud. In order to effectuate this scheme, Graham and his co-defendants placed advertisements in various newspapers soliciting the general public to submit personal information in application for employment with a fictitious company, "Transport Video East." Graham and his co-conspirators established accounts with various telephone answering services located in Pennsylvania, to receive the telephone calls and applications in response to the various solicitations as well as inquiries from the general public about the non-existent jobs. When applicants inquired about the advertised jobs, they were asked to provide personal information such as social security numbers, driver's license numbers, etc., which Graham and the others subsequently used to create duplicate drivers licenses and other forms of fraudulent identification.

Using this false identification, Graham and his co-conspirators opened bank accounts at various financial institutions. Typically, the bank accounts were opened through the mail using the fraudulently obtained names and personal information of the unsuspecting job applicants. By securing post office boxes with private postal services, Graham and his co-conspirators were able to obtain addresses for the bank accounts. Utilizing this fraudulent scheme, Graham and his co-conspirators deposited counterfeit checks totalling $162,000 into the various bank accounts. They then withdrew or attempted to withdraw the funds prior to the discovery of the fraudulent nature of the transactions. According to the government, an aggregate amount of $46,792.91 was withdrawn by Graham and his co-conspirators.

On August 17, 1993, a second superseding indictment was filed charging Vincent K. Graham and two others with conspiracy to make and utter counterfeit securities in violation of 18 U.S.C. Sec. 371 (1 count); making and uttering counterfeit securities in violation of 18 U.S.C. Sec. 513(a) (40 counts); bank fraud in violation of 18 U.S.C. Sec. 1344(1) (14 counts); misuse of social security documents in violation of 42 U.S.C. Sec. 408(a)(7) (18 counts); possession of false identification documents in violation of 18 U.S.C. Sec. 1028(a)(3) (2 counts); and aiding and abetting in violation of 18 U.S.C. Sec. 2. On September 10, 1993, pursuant to a written plea agreement, Graham pled guilty to 23 counts of the sixty-three count indictment. The remaining counts were dismissed on the government's motion.

Subsequently, Graham was sentenced to a term of forty-six months of imprisonment on each count, to run concurrently, followed by a term of three years of supervised release. The district court also ordered Graham to pay a special assessment of $1,300 and to pay restitution in the amount of $46,692.91, jointly and severally with his co-defendants, in installments to be established by the probation officer. We turn to Graham's assertion that this order was inappropriate in light of his inability to make restitution in the amount ordered by the court.

II.

Restitution is authorized by the Victim and Witness Protection Act, 18 U.S.C. Sec. 3663(a), as incorporated into the Sentencing Guidelines, U.S.S.G. Sec. 5E1.1. Section 3663(a)(1) provides that "The court, when sentencing a defendant convicted of an offense under this title ..., may order, in addition to ... any other penalty authorized by law, that the defendant make restitution to any victim of the offense." Section 3664(a) requires that the court "consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate." 18 U.S.C. Sec. 3664(a). See also United States v. Seligsohn, 981 F.2d 1418, 1423 (3d Cir.1992); United States v. Johnson, 816 F.2d 918, 924 (3d Cir.1987). We exercise plenary review over whether an award of restitution is permitted under law, but we review specific awards for abuse of discretion. United States v. Seligsohn, supra, 981 F.2d at 1421; United States v. Copple, 24 F.3d 535 (3d Cir.) cert. denied, --- U.S. ----, 115 S.Ct. 488, 130 L.Ed.2d 400 (1994).

A.

In applying the restitution provisions of the Victim and Witness Protection Act, district courts must make specific findings regarding the factual issues that are relevant to the Act. United States v. Logar, 975 F.2d 958, 961 (3d Cir.1992) (quoting United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985)). In United States v. Logar, we identified the necessary factual findings: (1) the amount of loss, (2) the defendant's ability to pay and the financial needs of the defendant and the defendant's dependents, and (3) the relationship between the restitution imposed and the loss caused by the defendant's conduct. Logar, 975 F.2d at 961. The government has the burden of demonstrating by a preponderance of the evidence the amount of loss sustained by a victim. United States v. Palma, 760 F.2d at 480; 18 U.S.C. Sec. 3580(d). The defendant has the burden of demonstrating, also by a preponderance of the evidence, his financial needs and resources. Id. Indigency at the time of sentencing is not a bar to ordering the appellant to pay restitution. United States v. Hallman, 23 F.3d 821, 827 (3d Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 216, 130 L.Ed.2d 144 (1994) (citing United States v. Logar, 975 F.2d 958, 962 (3d Cir.1992)). "The order of restitution, on the other hand, may not be based on some future fortuitous event that may befall the appellant, but must be based on realistic expectations." Id.

Here the government agrees with Graham that, under Logar, supra, the district court was required to make specific findings regarding Graham's ability to pay restitution. The government concedes that this was not done. ² Accordingly, we will remand the order of restitution to the district court so that this finding can be made. In addition, on remand, the district court should make specific findings of fact not only concerning Graham's current financial status but also on his ability to earn income in the future before the court sets an appropriate amount of restitution, if any. ³ See United States v. Logar, 975 F.2d at 963.

B.

On remand, the district court must also designate the timing and amount of the restitution payments. Pursuant to 18 U.S.C. Sec. 3663(f)(1), in ordering restitution, "The court may require that such defendant make restitution under this section within a specified period or in specified installments." ⁴

Utilizing AO Form 245B (Rev. 7/92), entitled Judgment in a Criminal Case, the district court indicated, by placing an "X" in the appropriate box, that the schedule of restitution payments were to be made "in installments which the...