U.S. v. Silkowski

• Decision Date: 11 August 1994
• Docket Number: D,No. 713,713
• Citation: 32 F.3d 682
• Parties: UNITED STATES of America, Appellee, v. Ralph J. SILKOWSKI, Defendant-Appellant. ocket 93-1520.
• Court: U.S. Court of Appeals — Second Circuit

Page 682

32 F.3d 682

UNITED STATES of America, Appellee, v. Ralph J. SILKOWSKI, Defendant-Appellant.

No. 713, Docket 93-1520.

United States Court of Appeals Second Circuit.

Argued Dec. 15, 1993.

Decided Aug. 11, 1994.

James P. Trainor, Albany, NY (Carter, Conboy, Bardwell, Case, Blackmore & Napierski, of counsel), for defendant-appellant.

Kimberly M. Zimmer, Asst. U.S. Atty., N.D.N.Y., Albany, NY (Gary L. Sharpe, U.S. Atty., N.D.N.Y., of counsel), for appellee.

Before: MESKILL, WINTER and PRATT, Circuit Judges.

MESKILL, Circuit Judge:

This appeal raises the issue of whether a district court may consider criminal conduct outside the applicable statute of limitations when determining the appropriate sentence of incarceration and restitution. The United States District Court for the Northern District of New York, Cholakis, J., concluded that it could and relied on such conduct for purposes of calculating both the term of incarceration under the United States Sentencing Guidelines (Guidelines) and the amount of loss the defendant was required to repay as restitution. For the reasons below, we affirm the district court's imposition of the term of imprisonment but vacate the order of restitution and remand that matter for further proceedings consistent with this opinion.

BACKGROUND

In February 1992, Ralph J. Silkowski (Silkowski) asserts that he received a "target" letter from the United States Attorney's Office for the Northern District of New York (government) alleging that Silkowski violated the social security laws. Following plea negotiations, the parties entered into a plea agreement under which Silkowski would waive indictment and plead guilty to a one count information charging him with theft of public funds in violation of 18 U.S.C. Sec. 641. The target letter was predicated on Silkowski's alleged fraudulent receipt of auxiliary social security disability benefits issued in the name of his ex-wife from on or about May 1979 until May 1991 and in the name of his daughter from on or about May 1979 until November 1989.

Pursuant to the plea negotiations, however, Silkowski apparently conditioned his guilty plea on the understanding that the court, rather than the parties, would determine the aggregate amount of the theft for purposes of sentencing and restitution. To that end, the plea agreement stated:

5. Defendant Ralph J. Silkowski acknowledges that the sentence imposed upon him is ultimately within the sole discretion of the Court and that neither the United States Attorney's Office for the Northern District of New York nor any other United States Attorney's Office can 6. The Defendant further agrees to make full restitution to the Social Security Administration for the full amount of the loss suffered by the Social Security Administration said amount of restitution and loss to be determined by the Court.

make any promises or representations as to what sentence the defendant will receive.

(emphasis added).

On March 31, 1993, Silkowski entered a guilty plea in the United States District Court for the Northern District of New York, Cholakis, J., to an information charging one count of violating section 641. Specifically, the information charged:

That from on or about May, 1979, through on or about May, 1991, in the Northern District of New York, the defendant Ralph J. Silkowski, a resident of Potsdam, New York, did knowingly, intentionally and willfully embezzle, steal, purloin and convert to his use a record, voucher, money or thing of value belonging to the United States Department of Health and Human Services, Social Security Administration, that is, Social Security auxiliary benefits checks issued to Magda Silkowski and Crystal Silkowski, totalling approximately $27,843.50.

In violation of Title 18, United States Code, Section 641.

(emphasis added).

During the plea allocution, however, defense counsel objected to the dates and amount set forth in the information. The following dialogue ensued:

THE COURT: You've entered into a plea agreement with the Government. Have you read the plea agreement?

THE DEFENDANT: Yes, sir. I have.

THE COURT: Do you understand it?

THE DEFENDANT: I do.

THE COURT: Were the terms agreed to by you?

THE DEFENDANT: Yes, sir.

MR. TRAINOR [Defense Counsel]: Your Honor, the terms were agreed between Government and Counsel that the dates and amounts recited in the plea agreement were subject to your interpretation or approval at the time of the sentencing. In other words, we still have objections to the amount that is ultimately decided to be involved, as well as the dates, and we just want to make sure that is clear on this record.

THE COURT: Miss Zimmer [Counsel for the Government].

MS. ZIMMER: Yes, your Honor, the defendant is entering into a plea of the information which states the essential elements of the offense. However, he does dispute the dates and dollar amounts and wishes to reserve that for sentencing. Additionally, in the plea agreement as it reflects, he disputes that amount for purposes of restitution.

THE COURT: That may be something taken into consideration by the Probation Department. There will be a hearing before the Probation Department at which time you can make all your objections known. And if you do not rectify them with the Probation Department, I have to be notified substantially ahead of the sentencing of your argument; do you understand that, sir?

MR. TRAINOR: We understand you'll be making the decision as to the amount of restitution and the dates--

* * * * * *

THE COURT: Ralph Silkowski, I then ask you, sir, how do you plead to information 93-CR-98, which charges you with a violation of 18 U.S.Code Section 641, guilty or not guilty?

THE DEFENDANT: Guilty.

* * * * * *

THE COURT: I ask you: During that period of time, whenever it was, did you take some checks from Social Security that were made payable to Michael [sic?] Silkowski and Crystal Silkowski?

THE DEFENDANT: Yes.

* * * * * *

THE COURT: They total approximately twenty-seven thousand dollars?

MR. TRAINOR: We're objecting to the amount involved, your Honor.

THE COURT: Yes, I understand that.

MR. TRAINOR: As well as the dates involved.

THE COURT: Okay. Well, you argue that out with the Probation Department and Miss Zimmer.

(emphasis added).

Prior to sentencing, the United States Probation Department prepared a Presentence Report (PSR). According to the PSR, Silkowski applied for social security disability benefits based on his inability to work as the result of a back injury. In May of 1979, the claim was processed and benefits were authorized. In addition to the disability benefits that he received for himself, both Silkowski's wife and daughter received auxiliary benefits. Silkowski was designated the payee for auxiliary benefits issued to his daughter.

In November 1980, Silkowski's wife and daughter moved out of his residence. Silkowski failed to notify the Social Security Administration that his wife and daughter no longer resided with him and he continued to collect the auxiliary benefits issued on their behalf. The daughter returned in November 1989 and resided with him until April 1991. Silkowski's wife never returned.

The PSR calculated the total amount of financial loss arising from Silkowski's fraudulent receipt of benefits as $24,813.10. In calculating this amount, the PSR aggregated the amount of illegal benefits received by Silkowski for the entire period of time that he resided without his wife or daughter going back to November 1980, when his wife and daughter left.

Silkowski filed an objection to the PSR's determination of total loss. Specifically, Silkowski objected to the PSR's use of the November 1980 date as the beginning of the relevant time period employed to calculate the amount of the loss. Silkowski contended that the amount of loss should be predicated on criminal conduct committed only within the five year statute of limitations period applicable to the offense of conviction. Accordingly, Silkowski urged that illegal benefits received more than five years prior to the date of the waiver and plea could not be considered in calculating the amount of loss relevant to his sentence.

At sentencing, the district court rejected Silkowski's argument. Although not entirely clear from the record, the court apparently reasoned that the statute of limitations defense was not available to him in a sentencing proceeding either for determining the length of incarceration under the Guidelines or for determining the amount of loss for restitution purposes. With respect to the term of incarceration, the court apparently found that the continual receipt of illegal benefits beginning in November 1980 was relevant conduct to be considered in calculating the total loss applicable to determining the appropriate sentence for a violation of section 641. With respect to the amount of loss for the purposes of determining restitution, the district court found that "the statute of limitations defense is not available at this time." The court then adopted the Probation Department's $24,813.10 calculation of the total amount of loss for restitution purposes as set forth in the PSR.

The district court proceeded to calculate the sentence using the $24,813.10 as the amount of total loss. The court, moreover, found that a two point enhancement for more than minimal planning of the offense was appropriate in this case. See Guidelines Sec. 2B1.1(b)(5)(A). It found the total offense level was ten, the criminal history category was II, and the corresponding sentencing range under the Guidelines was eight to fourteen months imprisonment. The district court then denied Silkowski's motion for a downward departure and sentenced him to eight months incarceration to be followed by two years of supervised release, ordered repayment of the entire $24,813.10 as restitution and ordered payment of a $50 special assessment. This appeal followed.

DISCUSSION

Silkowski...