United States v. Welden, CR 83-AR-123-M.

• Decision Date: 29 July 1983
• Docket Number: No. CR 83-AR-123-M.,CR 83-AR-123-M.
• Parties: UNITED STATES of America, v. Carlton WELDEN, Edward Eugene Satterfield, Perry Don Allison.
• Court: U.S. District Court — Northern District of Alabama

568 F. Supp. 516

UNITED STATES of America, v. Carlton WELDEN, Edward Eugene Satterfield, Perry Don Allison.

No. CR 83-AR-123-M.

United States District Court, N.D. Alabama.

July 29, 1983.

Charles McGee, Fort Payne, Ala., W.M. Beck, Sr., Fort Payne, Ala., Charles Caldwell, Craig R. Izard, Birmingham, Ala., for defendants.

Frank W. Donaldson, U.S. Atty., G. Douglas Jones, Asst. U.S. Atty., Birmingham, Ala., for plaintiff.

MEMORANDUM OPINION

ACKER, District Judge.

The Court is faced with a challenge to the constitutionality of 18 U.S.C. §§ 3579 and 3580, insofar as these new statutory provisions of the Victim and Witness Protection Act of 1982 purport to require "restitution" to a "victim" by a person convicted of a federal crime. In this particular case the indictment was brought under 18 U.S.C. § 1201(a)(1), the kidnapping statute. From the evidence upon which Carlton Welden, Edward Eugene Satterfield and Perry Don Allison, the three co-defendants in this case, were all convicted it appears that as to one "victim" the crime resulted in his death; that as to a second "victim" the crime resulted in her sexual abuse, in a laceration to her head, in her hospitalization and in possible severe and permanent psychological damage; and that as to a third "victim" the crime resulted in damage to his automobile, which was used by defendants in their crime. If constitutional, 18 U.S.C. §§ 3579 and 3580, would require this Court, as part of the sentence of each defendant, to order that he make "restitution" to each "victim", or for the Court to articulate in the record a legitimate reason for not doing so. During the sentencing hearing on July 15, 1983, after the guilty verdict, each defendant filed in open court a motion claiming that these statutes, which by their terms apply to Title 18 crimes committed after January 1, 1983, are unconstitutional. The crime here was clearly committed after January 1, 1983. Therefore, the constitutional question is clearly and unavoidably presented.

The Court has declined the temptation to "side step" the constitutional question. It could do so by entering a simplistic order of restitution. On the other hand, the Court would be intellectually dishonest in the extreme if it attempted to state a reason for not ordering restitution in a case where the crime is so hideous, and a case in which it appears that all defendants have assets.

The Statutes

Before addressing the constitutional issues which have been raised by defendants, it is necessary to look at the statutes themselves.

The Victim Protection and Restitution Act of 1982 was enacted on October 12, 1982. The "restitution" portions are set forth in Title 18 U.S.C. §§ 3579 and 3580 as follows:

§ 3579. Order of restitution

(a)(1) The court, when sentencing a defendant convicted of an offense under this title or under subsection (h), (i), (j), or (n) of section 902 of the Federal Aviation Act of 1958 (49 U.S.C. 1472), may order, in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of the offense.

(2) If the court does not order restitution, or orders only partial restitution, under this section, the court shall state on the record the reasons therefor.

(b) The order may require that such defendant —

(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense —

(A) return the property to the owner of the property or someone designated by the owner; or

(B) if return of the property under subparagraph (A) is impossible, impractical, or inadequate, pay an amount equal to the greater of —

(i) the value of the property on the date of the damage, loss, or destruction, or

(ii) the value of the property on the date of sentencing,

less the value (as of the date the property is returned) of any part of the property that is returned;

(2) in the case of an offense resulting in bodily injury to a victim —

(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;

(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and

(C) reimburse the victim for income lost by such victim as a result of such offense;

(3) in the case of an offense resulting in bodily injury also results in the death of a victim, pay an amount equal to the cost of necessary funeral and related services; and

(4) in any case, if the victim (or if the victim is deceased, the victim's estate) consents, make restitution in services in lieu of money, or make restitution to a person or organization designated by the victim or the estate.

(c) If the Court decides to order restitution under this section, the court shall, if the victim is deceased, order that the restitution be made to the victim's estate.

(d) The court shall impose an order of restitution to the extent that such order is as fair as possible to the victim and the imposition of such order will not unduly complicate or prolong the sentencing process.

(e)(1) The court shall not impose restitution with respect to a loss for which the victim has received or is to receive compensation, except that the court may, in the interest of justice, order restitution to any person who has compensated the victim for such loss to the extent that such person paid the compensation. An order of restitution shall require that all restitution to victims under such order be made before any restitution to any other person under such order is made.

(2) Any amount paid to a victim under an order of restitution shall be set off against any amount later recovered as compensatory damages by such victim in —

(A) any Federal civil proceeding; and

(B) any State civil proceeding, to the extent provided by the law of that State.

(f)(1) The court may require that such defendant make restitution under this section within a specified period or in specified installments.

(2) The end of such period or the last such installment shall not be later than —

(A) the end of the period of probation, if probation is ordered;

(B) five years after the end of the term of imprisonment imposed, if the court does not order probation; and

(C) five years after the date of sentencing in any other case.

(3) If not otherwise provided by the court under this subsection, restitution shall be made immediately.

(g) If such defendant is placed on probation or paroled under this title, any restitution ordered under this section shall be a condition of such probation or parole. The court may revoke probation and the Parole Commission may revoke parole if the defendant fails to comply with such order. In determining whether to revoke probation or parole, the court or Parole Commission shall consider the defendant's employment status, earning ability, financial resources, the willfulness of the defendant's failure to pay, and any other special circumstances that may have a bearing on the defendant's ability to pay.

(h) An order of restitution may be enforced by the United States or a victim named in the order to receive the restitution in the same manner as a judgment in a civil action.

§ 3580. Procedure for issuing order of restitution

(a) The court, in determining whether to order restitution under section 3579 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.

(b) The court may order the probation service of the court to obtain information pertaining to the factors set forth in subsection (a) of this section. The probation service of the court shall include the information collected in the report of presentence investigation or in a separate report, as the court directs.

(c) The court shall disclose to both the defendant and the attorney for the Government all portions of the presentence or other report pertaining to the matters described in subsection (a) of this section.

(d) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant and such defendant's dependents shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires.

(e) A conviction of a defendant for an offense involving the act giving rise to restitution under this section shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding or State civil proceeding, to the extent consistent with State law, brought by the victim.

Another provision of the Act, set forth in Section 6 of Pub.L. 97-291 (The Witness Protection and Restitution Act of 1982), states in pertinent part:

Within two hundred and seventy days after the date of enactment of this Act October 12, 1982, the Attorney General shall develop and implement guidelines for the Department of Justice consistent with the purposes of this Act. In preparing the guidelines the Attorney General shall consider the following objectives:

(1) SERVICES TO VICTIMS OF CRIME — Law enforcement personnel should ensure that victims ... are given information on the following

* * * * * *

(C) The role of the victim in the criminal justice process, including what they can expect from the system as well as what the system

...