United States v. Johnson

• Citation: 145 F.Supp.3d 862
• Decision Date: 18 November 2015
• Docket Number: CR 97-40009
• Parties: United States of America, Plaintiff/Respondent, v. Barbara Johnson, Defendant/Movant.
• Court: U.S. District Court — District of South Dakota

145 F.Supp.3d 862

United States of America, Plaintiff/Respondent,

v.Barbara Johnson, Defendant/Movant.

CR 97-40009

United States District Court, D. South Dakota, Southern Division.

Signed November 18, 2015

Corey R. Bruning, Bruning & Lewis Law Firm, Flandreau, SD, for Defendant/Movant.

Jan L. Holmgren, Stephanie Carlson Bengford, U.S. Attorney's Office, Sioux Falls, SD, for Plaintiff/Respondent.

MEMORANDUM OPINION AND ORDER

Lawrence L. Piersol

, United States District Judge

Barbara Johnson (“Johnson”) moves for a clarification of the Court's order at sentencing regarding restitution. Specifically, Johnson requests the Court to clarify whether the order includes interest on the restitution ordered.

BACKGROUND

In February of 1997, Johnson was charged with embezzling approximately $76,400.00 from the bank where she was employed as a teller. According to the presentence investigation report (PSR), the law enforcement investigation revealed that she stole approximately $52,000 while at the Sunset Branch where she worked until June 16, 1995, at which time she was transferred to the East branch. While at the East branch, Johnson made 64 different entries in the general ledger between June 16, 1995 and May 21, 1996. On May 21, 1996, Johnson withdrew the last of four $5,000 withdraws from a customer's account. In the factual basis statement, Johnson admitted to embezzling a total of $56,400 from the bank and an additional $20,000 from the customer's account, making the total amount embezzled $76,400 over the four-year time period alleged in the indictment. (Doc. 10.)

Johnson was charged in a one count indictment of embezzlement in violation of 18 U.S.C. § 656

. The dates of the offenses were listed in the indictment as “[o]n or about February 15, 1992 continuing to on or about May 22, 1996.” (Doc. 1.) On April 21, 1997, Johnson entered a plea of guilty to the indictment. In the plea agreement, the government asked for restitution to the bank in the amount of $76,400. (Doc. 9.) Interest on restitution was not mentioned in the plea agreement. The plea agreement also contains an express waiver by Johnson of her right to appeal.

Paragraphs 11, 12 and 13 of the PSR contain the victim impact statement, indicating that the bank reimbursed the victim customer's account $1,857.59 for interest lost. The bank requested that Johnson be ordered to pay that interest. Based on the Sentencing Guidelines, the PSR writer could not recommend that interest be included as part of the loss.

On July 21, 1997, Johnson was sentenced to a term of 5 months imprisonment followed by 5 months home detention. She was ordered to pay restitution to the bank in the amount of $76,400. The Court did not award the interest requested by the bank in the amount of $1,857.59 which was discussed in paragraphs 11, 12 and 13 of the PSR. Payment of restitution was to be in full immediately; any amount not paid in full would be due in monthly installments of $150, to begin 14 days following Johnson's release. The minutes from the sentencing hearing show that the Court found Johnson did not have the ability to pay a fine, and the fine was waived. (Doc. 14.) The minutes say nothing about interest on the restitution.

Johnson was released from prison, got a job and, through the government's garnishment of her wages, she has paid the entire principal balance owing on her restitution. The government is continuing to garnish Johnson's wages in order to collect interest on the restitution. In its September 22 response to Johnson's pending motion, the government admits Johnson has paid the principal amount of restitution in full, but the government asserts that, as of that date, she owed $45,234.18 in interest. (Doc. 49.)

Johnson brought the instant motion seeking clarification of the order of restitution. She asserts that because the Court did not order interest on the restitution, the government cannot collect it. The government argues first that this Court lacks jurisdiction to change the restitution order. In addition, the government contends that the Mandatory Victim's Restitution Act applies in this case, requiring interest to be paid on Johnson's restitution despite the Court's failure to impose interest.

DISCUSSION

The Mandatory Victims Restitution Act (MVRA) was passed in 1996. The MVRA “applies in sentencing proceedings when the defendant has been convicted on or after the Act's effective date of April 24, 1996.” United States v. Williams , 128 F.3d 1239, 1240 (8th Cir.1997)

, citing 18 U.S.C.A. § 3663A(a)(l) (West Supp.1997). The MVRA provides that interest “shall” be payable on restitution of more than $2,500 unless restitution is paid in full within 15 days of judgment. 18 U.S.C. § 3612(f). Interest is computed at a rate equal to the weekly average 1-year constant maturity Treasury yield. 18 U.S.C. § 3612(f)(2). The court may waive interest, limit interest to a specific dollar amount, or limit interest to a specific period of time during which interest accrues. 18 U.S.C. § 3612(f)(3). The Attorney General also may waive interest. 18 U.S.C. § 3612(h).

Prior to the effective date of the MVRA on April 24, 1996, the Victim Witness Protection

Act (VWPA), 18 U.S.C. §§ 3663

-3664, guided the courts imposing restitution in criminal cases. The VWPA said nothing about interest on restitution, but courts held that interest could be imposed on restitution pursuant to the VWPA. See, e.g.,

Government of Virgin Islands v. Davis , 43 F.3d 41, 47 (3d Cir.1994) (affirming district court's inclusion of prejudgment interest in restitution order under VWPA); United States v. Kress , 944 F.2d 155, 160 (3d Cir.1991) (holding that postjudgment interest on restitution order was implicitly authorized by the VWPA); United States v. Smith , 944 F.2d 618, 626 (9th Cir.1991) ; United States v. Rochester , 898 F.2d 971, 983 (5th Cir.1990) (holding that although the VWPA was silent on the issue of interest, “both pre- and postjudgment interest may be awarded under the VWPA”).

Because Johnson pleaded guilty and was sentenced after April 24, 1996, the government argues that the MVRA applies to her case, thus mandating payment of interest on the entire amount of restitution ordered because the interest was not explicitly waived. Johnson asserts that applying the MVRA to her case violates the Ex Post Facto Clause because it increases the punishment for preenactment conduct. The government responds that there is no Ex Post Facto Clause violation because part of Johnson's crime occurred within the month following the effective date of the MVRA.

“The ex post facto clause proscribes application of a law that changes punishment in a manner that inflicts greater punishment than the law annexed to the crime at the time of its commission.” United States v. Cooper , 35 F.3d 1248, 1250 (8th Cir.1994)

cert. granted, judgment vacated, 514 U.S. 1094, 115 S.Ct. 1820, 131 L.Ed.2d 742 (1995) and opinion reinstated, 63 F.3d 761 (8th Cir.1995), citing

Calder v. Bull , 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (1798). “[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham , 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981). Not only the retroactive criminalization of an act, but also the retroactive increase in the severity of punishment may violate ex post facto prohibitions. Lynce v. Mathis , 519 U.S. 433, 441, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997). “Critical to relief under the Ex Post Facto Clause is ... the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Weaver , 450 U.S. at 30, 101 S.Ct. 960.

The MVRA amendments made changes in addition to interest on restitution. Prior to the amendments, the statute required a court to consider a defendant's ability to pay in setting the amount of a restitution order, and whether to grant restitution was discretionary. See Williams , 128 F.3d at 1241

. As amended, the statute provides that the court shall order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant. 18 U.S.C. § 3664(t)(l)(A). In Williams , the Eighth Circuit held that retrospective application of the MVRA violates the Ex Post Facto Clause because restitution imposed as part of a defendant's sentence under the MVRA is criminal punishment, not a civil sanction, and the shift from discretionary to mandatory restitution without consideration of a defendant's economic circumstances increases the punishment imposed on a particular defendant. Williams , 128 F.3d at 1241 ; see also

United States v. Ross , 279 F.3d 600, 609 (8th Cir.2002) (restitution is a criminal penalty for purposes of deciding if Apprendi applies).¹ The majority of circuits have held that retroactive application of the MVRA to conduct occurring before its enactment would violate the Ex Post Facto Clause. See United States v. Schulte , 264 F.3d 656, 662 (6th Cir.2001)

(restitution imposed under the MVRA constitutes punishment, and “where an act was committed prior to the effective date of the MVRA, the retroactive application of the MVRA to that act violates the Ex Post Facto Clause.”); United States v. Richards , 204 F.3d 177, 213–14 (5th Cir.2000) (holding that application of the MVRA to an individual's conduct that occurred prior to its passage would violate the Ex Post Facto clause), overruled on other grounds by

United States v. Cotton , 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) ; United States v. Siegel , 153 F.3d 1256, 1260 (11th Cir.1998) (same); United States v. Edwards , 162 F.3d 87, 89–90 (3d Cir.1998) (same); United States v. Rezaq , 134 F.3d 1121, 1140–41 n. 13 (D.C.Cir.1998) (noting indicta that retroactive application of the MVRA...