U.S. v. Parrott

• Decision Date: 19 August 1992
• Docket Number: Nos. 92-55305,92-55410,s. 92-55305
• Citation: 992 F.2d 914
• Parties: UNITED STATES of America, Petitioner-Appellant, v. Peter M. PARROTT, Respondent-Appellee. UNITED STATES of America, Plaintiff-Appellee, v. Peter M. PARROTT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 914

992 F.2d 914

UNITED STATES of America, Petitioner-Appellant, v. Peter M. PARROTT, Respondent-Appellee.

UNITED STATES of America, Plaintiff-Appellee, v. Peter M. PARROTT, Defendant-Appellant.

Nos. 92-55305, 92-55410.

United States Court of Appeals Ninth Circuit.

Submitted Aug. 19, 1992 ^*.

Submission Deferred Aug. 20, 1992.

Resubmitted Jan. 12, 1993.

Decided April 27, 1993.

Peter M. Parrott, in pro per.

James R. Asperger, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California Edward Rafeedie, District Judge, Presiding.

Before: TANG and HALL, Circuit Judges, and WALKER, District Judge. ^**

WALKER, District Judge:

Following sentencing upon a guilty plea to charges of securities fraud and mail fraud, Parrott filed a motion under 28 U.S.C. § 2255 challenging the terms of his sentence. The district court reduced the amount of restitution and left all other terms of Parrott's sentence unchanged. In 92-55305, the United States appeals the reduction in the amount of restitution and in 92-55410, Parrott appeals the denial of his motion with respect to other terms of his sentence.

I.

In 1989, Parrott pled guilty to two counts of a seventeen count indictment. The indictment alleged that, from 1985 to 1987, Parrott abused his position as a stockbroker for E.F. Hutton to liquidate a total of approximately $350,000 from an account belonging to Drayer, who was related to Parrott through marriage. Counts 1 through 10 alleged separate purchases or sales of securities in violation of 15 U.S.C. §§ 78j(b), 78ff. Counts 11 through 17 alleged separate acts of mail fraud used by Parrott to conceal the liquidation of Drayer's account, in violation of 18 U.S.C. § 1341.

Count one of the indictment, to which Parrott pled guilty, alleged that Parrott illegally sold $103,400 worth of securities from Drayer's account in May 1985. Count eleven, to which Parrott also pled guilty, alleged a related act of mail fraud. In exchange for Parrott's plea, the government moved for the dismissal of the remaining 15 counts. The district court sentenced Parrott to four years imprisonment on the securities fraud count and five years of probation on the mail fraud count. As terms of probation, the district court ordered restitution paid to E.F. Hutton in the amount of $350,000, psychiatric counseling, and notification of all employers of this conviction. The court concluded that the "sentence imposed on Count eleven shall be consecutive to the sentence imposed on Count I, * * * and shall be consecutive to any other sentence the defendant is presently serving." At the time of sentencing, Parrott was serving a sentence in California state prison for burglary. On the government's motion, the district court dismissed the remaining fifteen counts of the indictment.

On January 31, 1992, in response to Parrott's § 2255 motion, the court reduced the amount of restitution from $350,000 to $103,400, and left unchanged the remaining terms of Parrott's sentence.

II.

The United States appeals the reduction in restitution. Parrott challenges (1) the length of his prison sentence; (2) the determination that this sentence should run consecutively to Parrott's state sentence; and (3) the terms of probation requiring notice to employers and psychiatric counseling.

A. Restitution.

We review a restitution order for abuse of discretion as long as it is within the statutory framework. Questions of law are reviewed de novo. United States v. Sharp, 941 F.2d 811, 814 (9th Cir.1991).

For crimes committed between 1983 and 1987, a district court may order restitution under two different statutes. United States v. Soderling, 970 F.2d 529, 532 (9th Cir.1992). A restitution order is valid if it is valid under either statute. United States v. Weir, 861 F.2d 542, 546 (9th Cir.1988) cert. denied, 489 U.S. 1089, 109 S.Ct. 1555, 103 L.Ed.2d 858 (1989). The first, the Federal Probation Act ("FPA"), provides that the court may order, as a condition of probation, that the defendant "be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." 18 U.S.C. § 3651, repealed by Pub.L. No. 98-473, tit. II, § 212(a)(2), 98 Stat. 1987, 2031 (1984). The FPA is applicable to offenses committed before November 1, 1987. Id. The second statute, the Victim and Witness Protection Act ("VWPA"), 18 U.S.C. §§ 3663, 3664, provides that "a defendant convicted of an offense" may be required to "make restitution to any victim of such offense." 18 U.S.C. § 3663(a)(1). The VWPA applies only to violations of Title 18 and certain subsections of 49 U.S.C.App. § 1472. United States v. Snider, 957 F.2d 703, 706 (9th Cir.1992). This statute became effective January 1, 1983 and is still in effect.

The government contends that the district court erred in reducing the amount of restitution required of Parrott from $350,000 to $103,400. According to the government, the original $350,000 restitution order is appropriate under either the FPA or the VWPA.

Under either statute, three independent methods are employed to determine the appropriate amount of restitution. Of course, the defendant and the government may negotiate a plea agreement wherein the defendant stipulates to the amount of restitution. We have consistently interpreted the FPA to permit a sentencing court to award any amount of restitution, even an amount greater than the amount of losses alleged in the indictment, pursuant to a fully negotiated plea agreement. United States v. Duvall, 926 F.2d 875, 877 (9th Cir.1991); United States v. Koenig, 813 F.2d 1044, 1046 (9th Cir.1987); Phillips v. United States, 679 F.2d 192, 194 (9th Cir.1982). Recently, we reached the same result in a case governed by the VWPA. Soderling, 970 F.2d at 533.

Second, in the absence of a plea agreement or in those cases where the plea agreement is silent on the amount of restitution, the FPA authorizes an order of restitution in an amount up to the amount of "actual damages." 18 U.S.C. § 3651. The "actual damages" must be established by some type of "judicial determination." United States v. Gering, 716 F.2d 615, 625 (9th Cir.1983). Such judicial determination may be made at trial. Gering, 716 F.2d at 625. A judicial determination might also be made after a separate hearing for the purpose of fixing the amount of restitution. United States v. Jenkins, 884 F.2d 433, 440 (9th Cir.1989), cert. denied, 493 U.S. 1005, 110 S.Ct. 568, 107 L.Ed.2d 562 (1989). Before the amount of restitution can be determined, however, the defendant must be afforded notice. United States v. Schiek, 806 F.2d 943, 944 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 534 (1987).

The VWPA contains similar statutory requirements. The amount of restitution must be fixed by judicial determination, by a preponderance of the evidence. The defendant must be afforded notice and an opportunity to be heard. Weir, 861 F.2d at 546.

Lastly, in cases where there is neither a plea agreement which addresses the amount of restitution to be paid nor a judicial determination of the amount of actual damages, restitution may be awarded in an amount no greater than that alleged in the counts of the indictment for which the conviction is had. We so interpreted the FPA over four decades ago. Karrell v. United States, 181 F.2d 981, 986 (9th Cir.1950), cert. denied, 340 U.S. 891, 71 S.Ct. 206, 95 L.Ed. 646 (1950). The Supreme Court has similarly interpreted the VWPA. Hughey v. United States, 495 U.S. 411, 420, 110 S.Ct. 1979, 1984, 109 L.Ed.2d 408 (1990).

Thus, we have held that where a defendant pleads guilty and the plea agreement is silent on the amount of losses, the sentencing court is limited to imposing restitution in an amount no greater than that alleged in the counts to which the defendant pled guilty. United States v. Orr, 691 F.2d 431, 433-434 (9th Cir.1982). Furthermore, where a defendant pleads guilty and both the plea agreement and the indictment are silent on the amount of losses, no restitution may be awarded in the absence of a judicial determination of actual damages. United States v. Whitney, 838 F.2d 404, 404-405 (9th Cir.1988), amending 785 F.2d 824 (9th Cir.1986). Orr and Whitney interpreted the FPA, but our precedents interpreting the FPA apply equally to the VWPA whenever the language of the two statutes permits adoption of the earlier interpretation. Soderling, 970 F.2d at 533. This limitation on the amount of restitution that may be awarded in the absence of a plea agreement or a judicial determination serves both the requirement of notice to the defendant and the requirement that the amount of restitution be no greater than the amount of actual damages.

The district court did not specify whether the award of restitution was made pursuant to the FPA or the VWPA. Because restitution was ordered as a condition of probation, it is governed by the FPA. 18 U.S.C. § 3651. The VWPA is also implicated, because Parrott pled guilty to a count of mail fraud, a crime within the scope of 18 U.S.C. § 3663(a)(1).

But in the absence of a plea agreement or a judicial determination, no more than $103,400 in restitution could have been ordered under either the FPA or the VWPA. This amount, and no more, is the amount to which Parrott admitted by pleading guilty to counts 1 and 11 of the indictment, and is thus the maximum established loss caused by the specific conduct that is the basis of the offense of conviction.

We reach this conclusion even though, as the government points out, Parrott admitted to a "scheme" of conduct. The scheme admitted by Parrott involved losses of only $103,400, not the $350,000 alleged in the indictment. As we stated in Sharp, 941 F.2d at 815, "[t]o permit a greater offense to be incorporated by reference into each count of the indictment destroys the plea bargain process. * * * ...