United States v. McLaughlin, Crim. No. M-80-0405.

• Decision Date: 14 April 1981
• Docket Number: Crim. No. M-80-0405.
• Citation: 512 F. Supp. 907
• Parties: UNITED STATES of America v. Deloria A. McLAUGHLIN.
• Court: U.S. District Court — District of Maryland

512 F. Supp. 907

UNITED STATES of America v. Deloria A. McLAUGHLIN.

Crim. No. M-80-0405.

United States District Court, D. Maryland.

April 14, 1981.

Russell T. Baker, Jr., U. S. Atty., and Ellen L. Hollander, Asst. U. S. Atty., Baltimore, Md., for plaintiff.

Fred Warren Bennett, Federal Public Defender, and Stanley J. Reed, Asst. Federal Public Defender, Baltimore, Md., for defendant.

MEMORANDUM

JAMES R. MILLER, Jr., District Judge.

Although it is unusual for a sentencing court to set out in writing its reasons for imposing a particular sentence, the circumstances of the defendant's conviction compel the court to do so in this case.

The defendant was charged, in a five-count indictment, with embezzling a total of $1,811.01 from her employer in violation of 18 U.S.C. § 656. Defendant was convicted on Count I of the indictment by way of a guilty plea. Under the terms of a plea agreement, the government agreed to move, and did in fact move to dismiss the remaining counts upon the court's acceptance of the defendant's guilty plea to Count I. Pursuant to the plea agreement, the defendant agreed, among other things, to make restitution in the total amount charged in the indictment. The defendant also agreed that, should she be placed on probation at the time of sentencing, full restitution would be a condition of probation. United States v. McLaughlin, 509 F.Supp. 857 (D.Md.1981).

At rearraignment, the court examined the defendant on whether she freely and voluntarily agreed to make full restitution, and whether she in fact caused the $1,811.01 loss to her employer. The defendant responded to both inquiries in the affirmative. At sentencing, the court again questioned the defendant on whether she was willing to make full restitution. The defendant answered in the affirmative. The court then suspended the imposition of sentence and placed the defendant on five years' probation, 18 U.S.C. §§ 4216, 5010(a). One of the conditions of probation was for the defendant to make restitution of the full amount she actually stole from her employer, as alleged in the indictment, even though she had been convicted of only one of the five counts of the indictment.¹

It is well settled that a requirement of restitution is an appropriate condition of probation when a defendant is sentenced under section 5010(a). Durst v. United States, 434 U.S. 542, 549-53, 98 S.Ct. 849, 853-855, 55 L.Ed.2d 14 (1978). The question which has arisen in the present case, however, is the legality of requiring full restitution as a condition of probation when the defendant has been convicted on only one count of a multicount indictment through the court's acceptance of a guilty plea pursuant to a plea agreement.

The court has considered the purposes underlying the Federal Probation Act, 18 U.S.C. § 3651, as well as the handful of cases interpreting its restitution provision. The court has also considered the policies underlying the granting of probation and the purposes of restitution in criminal cases. Although the matter is not free from doubt, the court concludes that it has the authority under section 3651 to make full restitution a condition of probation in a case such as this because: (1) the amount of loss suffered by an identifiable aggrieved party is certain; (2) the defendant admits, and there is no factual question as to whether, the defendant caused or was responsible for the aggrieved party's loss; and (3) the defendant consents, freely and voluntarily, to make full restitution and that it be a condition of probation. The court's reasoning is set out below.

I. The Purposes of Probation and Restitution

Section 3651 provides in pertinent part:

Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.

* * * * * *

Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.

The court may revoke or modify any condition of probation, or may change the period of probation.

The period of probation, together with any extension thereof, shall not exceed five years.

While on probation and among the conditions thereof, the defendant —

May be required to pay a fine in one or several sums; and

May be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had; and

May be required to provide for the support of any persons, for whose support he is legally responsible.

(Emphasis supplied).

The predominate purpose underlying the enactment of the Federal Probation Act was to give a convicted defendant a meaningful opportunity to reform. The Supreme Court has stated that the Act "was designed to provide a period of grace in order to aid the rehabilitation of a penitent offender; to take advantage of an opportunity for reformation which actual service of the suspended sentence might make less probable." Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155-166, 77 L.Ed. 266 (1932). See United States v. Murray, 275 U.S. 347, 357-58, 48 S.Ct. 146, 149, 72 L.Ed. 309 (1928); United States v. Torrez-Flores, 624 F.2d 776, 783-84 (7th Cir. 1980).

The availability of probation serves numerous societal interests. As Judge Lasker has noted, "the obvious advantage to an offender of a sentence of probation is that it rescues him from all the disabling effects of loss of freedom." Lasker, Presumption Against Incarceration, 7 Hofstra L.Rev. 407, 411 (1979). Under an appropriate system of supervision, therefore, the unhardened offender will hopefully become a law-abiding citizen. See, e. g., Roberts v. United States, 320 U.S. 264, 272, 64 S.Ct. 113, 117, 88 L.Ed. 41 (1943); J. Williams, The Law of Sentencing and Corrections 72-73 (1974).

The availability of a noncustodial sentence also offers significant advantages for the offender's family and the state. Included among these are that (1) the offender's family will not be deprived of the convicted defendant's emotional and economic support; (2) the state may save economically in terms of expenditures for prisons and welfare; (3) law enforcement efforts may be aided by encouraging defendants to cooperate in investigations; and (4) court congestion is relieved through increased guilty pleas. See, e. g., A. Campbell, Law of Sentencing 74-75 (1978); J. Williams, The Law of Sentencing and Corrections 80 (1974); American Bar Association Standards Relating to Probation § 1.2 (Approved Draft, 1970).

Central to any rehabilitation effort, however, is the convicted defendant's acknowledgment of his guilt. A requirement of restitution as a condition of probation can encourage such acknowledgment in two ways. On a general level, "restitution forces the criminal to confront the problems caused by his actions; theoretically, this confrontation is rehabilitative." Comment, Compensation for Victims of Crime — The Texas Approach, 34 Sw.L.J. 689, 690 (1980). More specifically, restitution impresses "upon the mind of the criminal that he has injured a human being, not some impersonal entity known as the state." Laster, Criminal Restitution: A Survey of Its Past History and an Analysis of Its Present Usefulness, 5 U.Rich.L.Rev. 71, 80 (1970) (footnote omitted). Restitution, especially in a situation in which a defendant acknowledges his or her culpability in stealing a specific total sum of money, can serve the rehabilitative goal, approved by the Supreme Court, of requiring the defendant to accept responsibility for his or her transgressions. See Durst v. United States, 434 U.S. at 554, 98 S.Ct. at 855. In addition, the restitutionary element of probation fosters societal interests such as confidence in the legal system and a sense of justice in that citizens will know that the damage done will be repaired. See, e. g., McAdam, Emerging Issue: An Analysis of Victim Compensation in America, 8 Urban Law. 346, 349 (1976); Lamborn, Remedies for the Victims of Crime, 43 S.Cal.L.Rev. 22, 27 (1970).

II. Restitution under Section 3651

It has long been settled that, unlike some state courts, federal courts possess no inherent authority to suspend a sentence of imprisonment and place a convicted defendant on probation. Ex parte United States, 242 U.S. 27, 49-52, 37 S.Ct. 72, 77, 79, 61 L.Ed. 129 (1916). See United States v. Ellenbogen, 390 F.2d 537, 541 (2d Cir.), cert. denied, 393 U.S. 918, 89 S.Ct. 241, 21 L.Ed.2d 206 (1968). Such authority, however, was granted by Congress in the form of the Federal Probation Act. 18 U.S.C. § 3651. That Act is the sole source of the court's probationary powers. See, e. g., United States v. Cohen, 617 F.2d 56, 58 (4th Cir. 1980); United States v. Workman, 617 F.2d 48, 50 (4th Cir. 1980).

Numerous cases have discussed generally the restitutionary aspect of section 3651. See, e. g., United States v. Seest, 631 F.2d 107, 110 (8th Cir. 1980); United States v. Tiler, 602 F.2d 30, 33 (2d Cir. 1979). However, few reported decisions have examined the precise scope of the court's power under that section as it relates to the amount of restitution a convicted defendant can either consent to pay or be compelled to pay as a condition of probation.

United States v. Follette, 32 F.Supp. 953 (E.D.Pa.1940), was the first reported decision to discuss the amount of restitution permissible under section 3651...