United States v. Salti
| Decision Date | 06 February 2023 |
| Docket Number | 21-3183 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AHMAD SALTI, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Appeal from the United States District Court for the District of Kansas (D.C. No. 5:14-CR-40138-DDC-1)
Virginia L. Grady, Federal Public Defender, John Arceci Assistant Federal Public Defender, and Matthew Frederickson Research & Writing Attorney, Office of the Public Denver Colorado, for Defendant - Appellant
Duston J. Slinkard, United States Attorney, Tanya Sue Wilson and Kathryn E. Sheedy, Assistant United States Attorneys, Office of the United States Attorney, District of Kansas, Topeka, Kansas, for Plaintiff - Appellee
Before HARTZ, KELLY, and MORITZ, Circuit Judges.
Defendant Ahmad Salti appeals the district court's determination of how to calculate his restitution obligation when his co-conspirator has also paid some restitution. Defendant was sentenced to pay the victim $35,000 in restitution, which was a "Joint and Several Amount" also owed by co-conspirator Pattrick J. Towner. R., Vol. I at 43. Mr. Towner's sentence required him to pay restitution to the victim of $72,000, owed jointly and severally with Defendant. After Defendant deposited $35,000 with the court clerk as restitution, the clerk informed the government that Defendant should receive a refund for overpayment. The clerk explained that Mr. Towner had paid $5,117.92 in restitution and the clerk had apportioned that amount pro rata between the obligation owed by both Defendant and Mr. Towner ($35,000) and the amount owed solely by Mr. Towner ($37,000). Because 35/72 of Mr. Towner's payments ($2,487.87) had been credited to the $35,000 in restitution owed jointly and severally by both defendants, Defendant had overpaid by that amount.
The government moved the district court to order the clerk not to pay Defendant a refund of $2,487.87. The district court agreed with the government, declaring that Defendant had to continue to make payments toward his $35,000 obligation unless (because of payments by Mr. Towner) the victim had already been fully compensated for its $72,000 loss. Defendant appeals. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm. The decision of the district court maximizes compensation to the victim and treats both Defendant and Mr. Towner fairly.
Defendant's father owned a convenience store with an ATM inside. Defendant informed Mr. Towner of the schedule for servicing the machine, and on September 16, 2014, Mr. Towner, armed with a semi-automatic handgun, robbed the service provider of cash stored in the service van. He obtained at least $72,000. Fortunately, no one was seriously injured.
Defendant and Mr. Towner were indicted separately and appeared before different judges of the United States District Court for the District of Kansas. Defendant and the government reached a plea agreement, but it did not address restitution. At his sentencing hearing the court asked the government whether it had recovered any of the stolen money; the government replied that the money had not been recovered and brought up restitution, stating that "the restitution has to simply be joint and several at [$]73,000," which the government said was the total loss to the ATM service provider. First Supp. R. at 51. In part because the parties had not agreed on restitution, the hearing was continued to a later date.
At the continuation of the hearing, Defendant's counsel opened the discussion of restitution, saying, "[W]e are asking for a sum of $35,000 to be paid by [Defendant] as part of his sentence in this case." Id. at 14. The government responded that Defendant's "willingness to enter into a restitution of [$]35,000 certainly satisfies that side of the case." Id. at 15. Defendant and the government agreed that the parties would be bound to the restitution amount of $35,000 even though that term was not spelled out in the plea agreement. The court then confirmed with Defendant "that you have agreed to the imposition of a restitution obligation on you in the amount of $35,000." Id. at 18. Summarizing its decision, the court said it was "imposing the restitution obligation of $35,000, consistent with the agreement that the parties have articulated during this hearing." Id. at 24. Formally delivering the sentence at the end of the hearing, the court said it was imposing restitution under "18 U.S.C. Section 3663" and for the first time mentioned that the $35,000 "[r]estitution is ordered joint and several with Pattrick J. Towner."[1] Id. at 30.
The judgment against Defendant, entered on March 21, 2016, two weeks after the continued hearing, reflected the signed plea agreement and the court's oral restitution order. The court sentenced Defendant to two years in prison and three years of supervised release, and it ordered that he pay a special assessment of $100 and $35,000 in restitution. The restitution provision specified that Defendant was liable for the restitution jointly and severally with Mr. Towner. Also, the judgment stated that the total loss to the victim was $72,000.
Mr. Towner pleaded guilty in March 2015. In May 2016, almost two months after Defendant was sentenced, the judge assigned to Mr. Towner's case sentenced him to serve 40 months in prison and three years on supervised release, to pay a special assessment of $100, and to pay $72,000 in restitution owed jointly and severally with Defendant.
The district-court clerk administered Defendant's and Mr. Towner's restitution payments. The Administrative Office of the United States Courts has developed computerized accounting systems and manuals that aid in this work, but the clerk remains responsible for applying the court's restitution orders. The first $100 Defendant and Mr. Towner each paid went to satisfying their special-assessment obligations. All further payments by Defendant and Mr. Towner went toward restitution.
The clerk interpreted Defendant's and Mr. Towner's restitution orders to mean that Defendant was responsible for $35,000 jointly and severally with Mr. Towner and that Mr. Towner was responsible for $35,000 jointly and severally with Defendant as well as for $37,000 individually. The clerk divided each of Mr. Towner's payments pro rata. Until the $35,000 joint and several liability was paid, 48.6% (35,000/72,000) of any payment Mr. Towner made was to go to paying off the $35,000 joint and several liability and 51.4% (37,000/72,000) was to be applied to the $37,000 individual debt. If Mr. Towner made a $100 payment, for example, $48.60 would go to the joint and several liability and $51.40 would go to the individual liability. After the $35,000 obligation was paid, 100% of Mr. Towner's payments would go to the remaining liability to the victim.
In August 2020, Defendant made a restitution payment of $7,827.38, bringing his total payments to $35,000. But because the clerk had been apportioning a percentage of Mr. Towner's payments to the $35,000 obligation, the clerk's accounting system deemed that Defendant had in fact overpaid by $2,487.87, which was the amount of Mr. Towner's payments that the clerk had credited to the $35,000 obligation. The clerk informed the government that it planned to reimburse that amount to Defendant. Had it done so, Defendant's restitution obligation would have been satisfied when he had paid $32,512.13 and Mr. Towner had paid $5,117.92. The victim was, at this point, still owed $34,369.95. The government objected to the clerk's plan. It filed a motion asking the district court to direct the clerk to disburse to the victim all funds paid by Defendant and Mr. Towner until the victim had received full compensation of $72,000. Defendant opposed the motion. The court held a hearing at which the financial manager for the clerk's office was the sole witness.
The court concluded that Defendant had not overpaid. See United States v. Salti, No. 14-40138-01-DDC, 2021 WL 4243128, at *1 (D. Kan. Sept. 17, 2021). It adopted the analysis of the Fifth Circuit in United States v. Sheets, 814 F.3d 256 (2016), in applying 18 U.S.C. § 3664(h), the statutory provision permitting apportionment of restitution among defendants. See Salti, 2021 WL 4243128, at *3-*5. Section 3664(h) states:
If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant.
Sheets said that a court apportioning restitution among multiple defendants had three options. First, the court could hold each defendant "liable for payment of the full amount of restitution, i.e., joint and several liability among the defendants." 814 F.3d at 260. Second, the court could apportion liability among the defendants in accord with the defendants' responsibility for the loss and ability to pay. See id. Third, the court could take a "hybrid approach," "employing a combination of the apportionment of liability approach while concurrently making all of the defendants jointly and severally liable." Id. The district court determined that the restitution orders against Defendant and Mr. Towner adopted this third approach. See Salti, 2021 WL 4243128, at *6.
Defendant presented three arguments against this conclusion. He first argued that "[t]he 'total amount' of the victim's loss for [Defendant] is $35,000 not $72,000." R., Vol. I at 61. The court disagreed "The Judgment against [Defendant] explicitly concludes that the lone victim's 'Total Loss' was $72,000," 2021 WL 4243128, at *6, and Defendant had not objected to or...
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