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January 8, 2010

SCOTUS grants cert on a (purely technical?) criminal restitution issue

As detailed at this new SCOTUSblog post, the Supreme Court this afternoon "has granted cert. in a single case,  Dolan v. United States (09-367)"

Docket: 09-367
Title: Dolan v. United States
Issue: Whether a district court decision to enter a restitution order beyond the ninety-day time limit prescribed in 18 U.S.C. § 3664(d)(5) must be vacated.

As the title of my post highlights, this issue seems to be of mostly technical importance.  If, however, the Supreme Court were to endorse an expanded time from for the entering of restitution orders, I suspect a  ruling in Dolan could have a significant ripple effect.

January 8, 2010 at 04:26 PM | Permalink


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I recently spoke at a seminar on Circuit splits and this is one of the issues where the Circuits have widely diverged. Accordingly, I expect that the Court took this case to provide uniformity among the Circuits. From my outline:

Title 18, U.S.C., § 3664(d)(5) provides that “[i]f the victim’s losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim’s losses, not to exceed 90 days after sentencing.”

Several Circuits, based on a plain language interpretation of § 3664(d)(5), hold that a district court lacks authority to enter a restitution order more than 90 days after sentencing. See United States v. Maung, 267 F.3d 1113, 1120-21 (11th Cir. 2001); United States v. Jolivette, 257 F.3d 581, 584 (6th Cir. 2001); United States v. Farr, 419 F.3d 621, 624 (7th Cir. 2005).

Other Circuits have concluded that the 90 day requirement is subject to equitable tolling if the delay is attributable to the defendant. See United States v. Dando, 287 F.3d 1007, 1011 n.5 (10th Cir. 2002); United States v. Terlingo, 327 F.3d 216, 220, 222 (3d Cir. 2003).

Still other Circuits apply a harmless error analysis. See United States v. Cienfuegos, 462 F.3d 1160, 1163 (9th Cir. 2006); United States v. Zakhary, 357 F.3d 186, 191 (2d Cir. 2004).

Recently, in United States v. Balentine, 569 F.3d 801 (8th Cir. 2009), the Eighth Circuit took what can only be described as a creative approach. The Eighth Circuit first agreed that the plain language of § 3664(d)(5) “unambiguously imposes a 90-day time limit on restitution orders.” Id. at 805. However, because the intended beneficiaries of the 90-day rule are the victims (to help prevent dissipation of the defendant’s assets), not the victimizer defendant, the Court found that a defendant who cannot show any prejudice has no remedy for violation of the 90-day rule. Id. at 806-07. The Court left open the possibility that a defendant could show actual prejudice. Id. at 807.

Posted by: Webb Wassmer | Jan 8, 2010 6:09:06 PM

The "creative" approach of the Eighth Circuit seems to be the one that makes the most sense. To say that if A blows a deadline created to benefit B then B loses all his rights make very little sense.

How about this rule? If the court violates the speedy trial deadline, there can be no trial, so we proceed directly to sentencing. That would make as much sense as saying the victim gets no restitution when the court fails to order it fast enough.

Posted by: Kent Scheidegger | Jan 8, 2010 7:59:09 PM

This seems like a pretty easy case--the imposition of restitution is mandatory. There is no evidence that Congress intended that if restitution isn't done on time, it isn't to be done at all.

Posted by: federalist | Jan 8, 2010 8:43:51 PM

I don't want to disagree with the two experts but it does seem plain to me that "not to exceed 90 days" means "not to exceed 90 days." I think that as a matter of policy I'd agree with federalist but I just don't think that's what the law actually says.

As for the creative approach I don't know where the 8th gets the prejudice prong from. I don't see that written in the "not to exceed 90 days" either. It seems to me the 90 days is self-executing.

Posted by: Daniel | Jan 9, 2010 12:49:52 AM

daniel, usually if there's a deadline for doing something (and it seems plain that the 90 days is a deadline for action), the passage of said deadline doesn't mean that the something no longer has to be done. In other words, it doesn't follow that the expiration of a time limit means that what was mandatory now becomes forbidden.

Posted by: federalist | Jan 9, 2010 8:00:45 AM

HAHAH. So delightful to see KentKent and feddy spin their heads trying to reconcile their positions with deadlines for criminal defendants to appeal. Doesn't XX number of days mean XX number of days, no matter who it is?

Posted by: . | Jan 9, 2010 9:16:45 AM

"If, however, the Supreme Court were to endorse an expanded time from for the entering of restitution orders"

In other words, rewrite what Congress explicitly passed into law. Yet some how, KentKent doesn't think this is judicial activism.

Posted by: . | Jan 9, 2010 9:18:34 AM

First of all, appeals aren't mandatory. Restitution is. Second of all, the statute doesn't say, "shall be done, if at all, within 90 days", and in my view, it would be judicial activism to write in that "if it all".

Posted by: federalist | Jan 9, 2010 9:47:10 AM

In reviewing the Reply to the Cert. Petition, I noted that restitution is awarded in more than 10,000 cases per year, so this is clearly a very important issue on which uniformity among the Circuits is required.
I think that any Judge who doesn't comply with the 90 day requirement should have to pay the restitution out of his own pocket, a kind of "Judicial Malpractice" penalty for not complying with the plain meaning of the statute.

Posted by: Jim Gormley | Jan 9, 2010 10:21:18 AM

Jim, your proposal may not even be constitutional. Query: is judicial immunity a constitutional command?

Posted by: federalist | Jan 9, 2010 11:02:29 AM

Federalist. You seem to be playing with words.

How does "if at all" and "not to exceed" differ? To me those words mean the same thing in this context.

Posted by: Daniel | Jan 9, 2010 12:30:17 PM

Daniel, a deadline for action, and I think it's plain this is a deadline for action, doesn't necessarily imply that the action becomes forbidden with the passing of the deadline. I think it's helpful to think of this in terms of the obligation being imposed. The judge has an obligation to award restitution within 90 days. Typically, obligations aren't rendered unobligatory if a deadline passes.

Posted by: federalist | Jan 9, 2010 12:40:42 PM

Restitution is part of the criminal sentence. The 90-day window is an extraordinary deviation from the basic rule that the defendant has a right to be sentenced promptly, to be present when sentenced, and not to have the sentence increased later or imposed twice; the defendant's right to appeal also kicks in only after a final judgment is entered reflecting the sentence that was imposed in his/her presence. This statute undermines all of those traditional and constitutional fairness protections for the defendant, and so (if it is constitutional at all) must be strictly construed and enforced, not treated as meaningless. If the government (or court) blows this deadline, the victim loses no substantial rights. A victim's right to sue the defendant for any loss still exists, with the benefit of at least a partial summary judgment on collateral estoppel grounds, due to the conviction. All that is lost is what victims had no "right" to in the first place (but which Congress generously extended, subject to certain limitations including this provision, in the 1982 Victim and Witness Act, as later amended) -- a summary proceeding, handled by a government lawyer on their behalf, with a low burden of proof, no need to testify, no jury, and no rules of evidence. Give me a break. If Congress had said, impose restitution at sentencing or not at all, that would have been perfectly valid. That Congress extended a further 90-day window, without providing for further extensions, is a very generous accommodation of "victim's rights" that should, at most, be enforced as written.

Posted by: Peter G | Jan 9, 2010 12:53:45 PM

Peter, that's a great policy argument, but I think that the restitution can be changed after the fact, so I don't think your assumptions about restitution not changing are correct.

Posted by: federalist | Jan 9, 2010 1:09:19 PM

When I say great--I dont mean to imply that I agree with it.

Posted by: federalist | Jan 9, 2010 1:17:31 PM

Hey, Fed: (1) Not to worry about my misunderstanding whether you might agree with me, even if I had the better argument. Calling something a "policy argument," of course, is pejorative, but the slap is inapplicable here. I wasn't contending that the Court should resolve this or any other case by imposing a deadline for the reasons given; that would be a "policy argument." I was pointing out that the statute as written appears to reflect a balancing by Congress of important rights (the defendant's) against legitimate interests (victims'), and therefore must be construed accordingly -- not with the victims' interests alone in mind. (2) Yes, there is a provision in the same statute purporting to allow the restitution component of the sentence to be increased if additional losses are discovered later; in fact, it's the very next sentence of the same subsection that the Court has granted cert in Dolan to construe. How that provision would survive a double jeopardy attack, I don't know. I do know that in Hughey (1990), the Supreme Court acknowledged that restitution, when imposed as part of a sentence, is a criminal penalty. It is subject to the same constitutional limitations and rules of statutory construction that govern other aspects of the criminal sentence. If the crime was discovered later, long after sentencing, to have caused more harm than at first realized, the judge could not increase the term of imprisonment, or the fine.

Posted by: Peter G | Jan 9, 2010 1:42:40 PM

Well, Peter, I don't see how you get to the "if at all" construction that you so clearly favor. Once again, that an obligation isn't timely fulfilled doesn't mean that it is forbidden to be fulfilled for all time.

Posted by: federalist | Jan 9, 2010 2:13:10 PM

Not to prolong this back and forth too much, but you're just wrong, as applied to criminal sentencing provisions, which implicate the strong policy (there, I said it!) favoring finality of judgments as well as those I mentioned earlier. The fallacy in your argument is that the 90-day provision is an (already dubious) extension of what would otherwise be the use-it-or-lose-it occasion of the sentencing hearing. Lots of criminal statutes, for example, say that at sentencing the court "shall" enter a criminal forfeiture, but in fact it is rarely done -- and that omission becomes final and irremediable when the sentencing hearing ends, or at least when the judgment is entered. Same as to restitution in many, many cases.

Posted by: Peter G | Jan 9, 2010 2:34:39 PM

I am a pro se Plaintiff in a §1983 action against the Title IV-D Child support division of the Attorney Generals Office of Texas. The OAG, pursuant to their own records, miscalculated my support records in excess of $30,000.00. In 1999 through the direct efforts of the OAG, using their corrupt records, the U.S. Attorneys Office prosecuted me under 18 USC 228(a)(3). Being completely ignorant of the voluminous laws under Title IV-D of the social security act which regulate the manner and procedures, throughout the U.S., on how child support awards and subsequent accounting will be handled, I pled guilty. Under 18 USC 228 restitution is mandated under 18 USC 3663, 3664. I strenuously objected to the $30,000.00 arrears claimed by the OAG listed in the PSR before and at Sentencing. During the sentencing hearing the government stipulated that they had no idea how much loss/arrears were in question but that they believed it was between $10,000.00 and $20,000.00. If they had stipulated it might be less than $10,000.00 they would have lost the indictment. The District Court imposed restitution at $30.000.00 based on the OAG's corrupt records which the prosecutor had already informed him were not correct.The sentencing hearing was in May of 2000 and there has yet to be a restitution hearing to determine loss. If the Court had complied with the 90 day rule the prosecution would not have been able to prove any loss...and the matter would have dissolved. As it is, I am in the 10th circuit Federal Court of appeals defending a Rule 12 Motion to dismiss by the OAG, in part because the District Court in Texas did not hold a hearing within 90 days as mandated. The OAG claims that because I pled guilty, that this proves I owed the amount they claimed, whether it was calculated correctly or not. Accordingly, I submit that the 90 rule is there for a reason.

Posted by: Pete H | Feb 9, 2010 5:37:11 PM

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