U.S. v. Haddock, 94-3239

• Decision Date: 09 March 1995
• Docket Number: No. 94-3239,94-3239
• Citation: 50 F.3d 835
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth E. HADDOCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 835

50 F.3d 835

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth E. HADDOCK, Defendant-Appellant.

No. 94-3239.

United States Court of Appeals Tenth Circuit.

March 9, 1995.

Samuel Rosenthal of Curtis, Mallet-Prevost, Colt & Mosle, Washington, DC, for defendant-appellant.

Kurt J. Shernuk, Asst. U.S. Atty. (Randall K. Rathbun, U.S. Atty., with him on the brief), Kansas City, KS, for plaintiff-appellee.

Before ANDERSON and HOLLOWAY, Circuit Judges, and DOWNES, ^* District Judge.

HOLLOWAY, Circuit Judge.

Defendant-Appellant Kenneth E. Haddock appeals from the district court's judgment and sentencing order which required him to pay $76,732 in restitution to the Central National Bank, Herington Branch. Appellate jurisdiction is proper under 28 U.S.C. Sec. 1291.

I

This is Haddock's third appeal in this case. In United States v. Haddock, 956 F.2d 1534, modified on reh'g, 961 F.2d 933 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 88, 121 L.Ed.2d 50 (1992) (Haddock I ), we affirmed Haddock's conviction on eight of the ten counts of the indictment. The underlying facts are set out in that opinion and need not be repeated.

In United States v. Haddock, 12 F.3d 950 (10th Cir.1993) (Haddock II ), we affirmed the district court's denial of Haddock's post-conviction claim of ineffective assistance of counsel, but remanded for resentencing because the district court had miscalculated the amount of actual loss and had therefore miscalculated the total offense level under the Sentencing Guidelines. After thoroughly analyzing the transactions involved, we calculated the amount of actual loss to be approximately $76,000, justifying a five level increase rather than a seven level increase in the offense level under the applicable 1987 Sentencing Guidelines. This made the proper sentencing range 24 to 30 months, rather than 30 to 37 months. Id. at 964.

On remand the district court sentenced Haddock to a prison term of 27 months and a period of supervised release of three years. The court also ordered Haddock to pay $76,732.00 in restitution to the Central National Bank, Herington Branch. The court ordered that the restitution be paid in installments through the Inmate Financial Responsibility Program of the Federal Bureau of Prisons, with any balance remaining to be paid during the period of supervised release in installments and the amount of the monthly payments to be determined by the Probation Office. ¹ In this third appeal Haddock challenges only the order for restitution.

II

A. Issues raised.

Haddock raises three issues regarding the order of restitution. First, he argues that the order of restitution must be reversed because the district court failed to take into account whether Haddock had the ability to pay the restitution. He also asserts that there was no factual basis to support a conclusion that Haddock had the ability to pay, had such a finding been made. Second, Haddock argues that the judge's order for restitution in the third sentencing was vindictive because the court had not ordered restitution in the previous two sentencings before his challenges to those rulings. Third, Haddock asserts that the payee designated in the restitution order, Central National Bank, Herington Branch (CNB), was not a victim of the crime; that he was entitled to corrections on the amount of loss; therefore the district court erred in ordering the restitution required to CNB.

B. Ability to pay restitution.

Under 18 U.S.C. Secs. 3663 and 3664, a sentencing court may order that a convicted defendant make restitution to the victims. In deciding whether to order restitution, the sentencing court must "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).

"Absent an abuse of or failure to exercise discretion, we will not disturb an order of restitution." United States v. Clark, 901 F.2d 855, 856 (10th Cir.1990). We review the district court's factual findings underlying a restitution order under the clearly erroneous standard. United States v. Rogat, 924 F.2d 983, 984-85 (10th Cir.), cert. denied, 499 U.S. 982, 111 S.Ct. 1637, 113 L.Ed.2d 732 (1991).

In Rogat, we said that "[t]he statute requires only that a sentencing judge consider the defendant's financial condition; the judge need not specifically recite his findings regarding that condition." 924 F.2d at 986. However, we have also held that "a restitution order 'must be consistent with a defendant's ability to pay.' " United States v. Gilbreath, 9 F.3d 85, 86 (10th Cir.1993) (quoting United States v. McIlvain, 967 F.2d 1479, 1481 (10th Cir.1992)). An order of restitution "must be supported by at least some indication that a defendant has assets or earning potential." Gilbreath, 9 F.3d at 86. And "[w]hen there is substantial ambiguity as to whether the judge considered the statutory factors, specific factual findings in the record may be required for effective appellate review." Rogat, 924 F.2d at 986.

Here, the district court ordered restitution of $76,732 to CNB. Haddock argues that the district judge refused to consider Haddock's ability to pay and held that proving that he could not pay "can come at a different time." Appellant's Brief at 16 (citing Joint Appendix [J.A.] at 149). Alternatively, he urges that even if the judge had not refused to make findings on his ability to pay, the restitution order would have to be reversed because there was no basis for concluding that Haddock could make such restitution. Appellant's Brief at 17.

The presentence report contains conflicting statements regarding Haddock's financial condition. The report was originally prepared in January 1991, and had been revised following each of Haddock's two prior appeals. However, the revised report indicates that no additional financial information had been requested since December 1990. It is unclear why the probation office did not seek to update this information in light of the fact that the financial information was considered inadequate when the original report was prepared. The report notes a substantial discrepancy between Haddock's financial condition as reported to the probation office in a December 1990 interview and as represented by Haddock to a bank in connection with a loan application made about July 6, 1990. In view of that discrepancy, the report in paragraph 86 states: "Based upon the preceding information, an accurate assessment of the defendant's financial condition is not possible, however, the information provided by Mr. Haddock to financial institutions reflects the ability to pay a fine."

As revised for the 1994 sentencing, the presentence report acknowledged the staleness of the information obtained more than three years before and the fact that significant changes had occurred in Haddock's circumstances in the interim. Most significantly, Haddock had been convicted of murder in state court in 1993 in connection with the death of his wife in 1992, is presently serving his state prison sentence, and has been in custody since November 27, 1992. Thus, the latest revised presentence report states in paragraph 87:

A substantial amount of time has passed since the preparation of the financial profile contained in this report. The specific financial condition of Mr. Haddock is unknown at this time and he may not now possess the ability to pay a fine. This opinion is based on the lack of adequate information to determine specific assets and liabilities incurred by the defendant for representation in a recent criminal prosecution and the appeals of the federal conviction.

J.A. at 267 (emphasis added).

Thus the record indicates that there was no reliable basis for the sentencing court to conclude that Haddock had assets from which to pay the restitution. Neither was there evidence concerning Haddock's future earning ability. It would have been unreasonable to conclude that Haddock could return to his area of previous employment, banking, following this conviction. His only other prior work experience was in teaching, a vocation from which we likewise must expect that he will be excluded in light of this conviction and the murder conviction.

In addition, during the sentencing hearing the district judge stated:

All the Court is finding--that the Court at this time is finding that the loss has been determined by the 10th Circuit Court of Appeals, and I'm ordering restitution based on that finding. The matter of proving that you cannot pay it or that you should not pay it, that, perhaps, can come at a different time.

J.A. at 149 (emphasis added). This statement strongly suggests that Haddock's ability to pay was not taken into account before imposing the order of restitution. ²

During Haddock's first sentencing the judge had stated, "I'm also concerned that funds be available to support the defendant's children and to help the defendant's wife with her support of the family, so I'm not going to assess a fine in this case." Id. at 75-76. At the latest sentencing on July 1, 1994, Haddock's children were 19, 17, and 14 years old. Notwithstanding the reasonable inference from the evidence that Haddock's financial condition could only have worsened in the more than three years since the sentencing report had originally been prepared, and in spite of his previously expressed concern about Haddock's children, the sentencing judge made only general statements indicating that these important factors had been assessed. At the July 1994 sentencing the court said:

[A]fter consideration of the amount of loss sustained, the questionable financial resources of the defendant, the future earnings ability of the defendant, and the financial needs of the defendant and his dependents, he should be required to make restitution as...