U.S. v. Keith, 84-1134
| Decision Date | 05 March 1985 |
| Docket Number | No. 84-1134,84-1134 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Norman H. KEITH, Defendant-Appellant. CA |
| Court | U.S. Court of Appeals — Ninth Circuit |
Gary H. Burger, Asst. U.S. Atty., Susan A. Ehrlich, Phoenix, Ariz., for plaintiff-appellee.
Thomas M. Hoidal, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.
Appeal from the United States District Court for the District of Arizona.
Before FARRIS, ALARCON and NORRIS, Circuit Judges.
I. INTRODUCTION
Norman H. Keith pleaded guilty to charges of assault with intent to commit rape (18 U.S.C. Secs. 113(a), 1153) and burglary in the second degree (18 U.S.C. Sec. 1153 and A.R.S. Secs. 13-1507, 13-701, 13-801). The district court sentenced Keith to a total of twelve years in prison on both counts and ordered him to pay restitution to the victim in the total amount of $1560. The district court denied the portion of Keith's motion for correction and reduction of sentence that sought deletion of the restitution order. Keith appealed. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.
Keith does not dispute the fact that the victim was injured. He nevertheless asserts that the restitution order is defective in a number of respects:
1. The district court failed to consider his indigency in determining the amount of restitution liability.
2. The order may subject him to incarceration because of his inability to pay the amount ordered.
3. The order does not require him to make restitution within a specified period or in specified installments, with the result that restitution is due immediately. See 18 U.S.C. Sec. 3579(f)(3).
4. A jury trial was not held on the question of the amount of restitution liability.
5. No hearing was held on the question of the amount of restitution liability.
6. The sums awarded were based upon unverified statements of the victim contained in the presentence report.
7. Certain sums were improperly included in the order.
II. DISCUSSION
Keith initially challenges the constitutionality of the restitution provisions of the Victim and Witness Protection Act of 1982, 18 U.S.C. Secs. 3579, 3580. He contends that the Act violates the eighth amendment's prohibitions against excessive fines and cruel and unusual punishments, deprived him of the right to a jury trial under the sixth and seventh amendments, and denied him due process of law in violation of the fifth amendment.
Keith contends that the Act violates the eighth amendment because under it, he may be incarcerated for a period longer than his sentence of imprisonment simply because he is financially unable to comply with the restitution order. In the cases upon which Keith relies, similar claims were raised directly under the equal protection and due process clauses of the fourteenth amendment, not under the eighth amendment. See Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); Tate v. Short, 401 U.S. 395, 91 S.Ct 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).
Keith's eighth amendment claims necessarily challenge the Act on its face because he has not been incarcerated as a result of any failure on his part to comply with the restitution order. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) requires that incarceration of an offender for noncompliance with a restitution order be preceded by a determination that the offender has not made sufficient bona fide efforts to pay, or, if the offender has made such efforts, that alternative punishments will not satisfy the penological interests of the Government. The Act requires courts and the Parole Commission to consider the willfulness of the offender's failure to pay restitution in determining whether or not to revoke probation or parole, 18 U.S.C. Sec. 3579(g). 1 But it does not explicitly require them to find that alternative punishments to incarceration do not satisfy the Government's penological interests before imprisoning an offender who has not complied with a restitution order but has made sufficient bona fide efforts to pay. Nothing in the Act, however, prevents us from construing it to include such a requirement. Following the canon that "[f]ederal statutes are to be so construed as to avoid serious doubt of their constitutionality," International Association of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1790, 6 L.Ed.2d 1141 (1961), we construe the Act to incorporate the constitutional requirements of fundamental fairness set forth in Bearden. United States v. Satterfield, 743 F.2d 827, 842-43 (11th Cir.1984).
The Sixth Amendment does not guarantee a right to a jury determination of the appropriate sentence in a criminal proceeding. Spaziano v. Florida, --- U.S. ----, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Keith asserts, however, that the seventh amendment requires the sentencing court to hold a jury trial on the issue of the amount of restitution liability because the provision of the Act authorizing the victim to enforce a restitution order, 18 U.S.C. Sec. 3579(h), transforms a restitution order into a civil judgment.
"[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction." United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). Congress intended restitution under the Act to be a criminal penalty carrying the stigma associated with other authorized criminal sanctions. Under the Act, a court "sentencing" a defendant convicted of specified federal criminal offenses may order restitution "in addition to or in lieu of any other penalty authorized by law." 18 U.S.C. Sec. 3579(a)(1). Unlike an award of damages in a civil action, a restitution order under the Act may compensate only for the kinds of harms enumerated in subsection 3579(b) () and does not bar a subsequent civil action for damages based upon the same incident. 18 U.S.C. Secs. 3579(e)(2), 3580(e). Finally, the Act requires the sentencing court to consider "the financial resources of the defendant, [and] the financial needs and earning ability of the defendant and the defendant's dependents" in determining the amount of restitution liability, evidence that would be inadmissible in a civil action for damages. 18 U.S.C. Sec. 3580(a).
Congress made restitution under the Act a criminal penalty. We agree with the Second, Eighth, Tenth, and Eleventh Circuits that inclusion of the victim enforcement provision in the Act does not transform a sentencing proceeding resulting in a restitution order into an "action at common law" within the meaning of the seventh amendment. United States v. Watchman, 749 F.2d 616, 617 (10th Cir. 1984); United States v. Satterfield, 743 F.2d 827, 839 (11th Cir.1984); United States v. Brown, 744 F.2d 905, 910 (2d Cir.1984); United States v. Florence, 741 F.2d 1066, 1067-68 (8th Cir.1984). Keith was not entitled to a jury trial on the issue of the amount of restitution liability.
In identifying the specific dictates of due process, we consider the private and governmental interests at stake, the risk of an erroneous deprivation of the private interests through existing procedures, and the probable value of additional or substitute procedures. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).
Keith disputed the amount of restitution throughout the sentencing proceedings, but he did so only by arguing that no restitution should have been awarded because of his indigency and that specific sums included in the restitution order went beyond the scope of compensable harms under the Act. Keith never challenged the accuracy of any of the specific sums that were included in the restitution order.
Although no witnesses were called on the issue of restitution and the sums requested were not verified, the district court considered Keith's objections to the inclusion of certain items in the restitution order and refused to include one of the contested claims. The presentence report set forth the victim's losses in the following amounts:
1. Destruction of personal
property: $230
2. Medical bills: $230
3. Lost wages: $650
4. Airplane ticket for victim $450
-----
$1560
5. Airplane ticket for victim's
father $450
-----
$2010
The last item was not included in the restitution order.
Where, as here, the amounts to be included in the restitution order are itemized, the objections are to their inclusion rather than to their amount, and the amounts claimed by the victim do not appear unreasonable on their face, due process is satisfied by affording the defendant an adequate opportunity to present his objections. Keith was given and took advantage of such opportunities at the sentencing and resentencing hearings, at oral argument on his motion for correction and reduction of his sentence, and in his original and supplemental sentencing memoranda. Cf. United States v. Watchman, 749 F.2d 616, 619 (10th Cir. 1984) (). Keith was not denied due process.
Keith contends that the district court abused its discretion by failing to hold a hearing on the restitution issue, by ordering restitution against...
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