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United States v. Gibbens, 1st Cir. (1994)
United States v. Gibbens, 1st Cir. (1994)
United States v. Gibbens, 1st Cir. (1994)
SELYA,
SELYA,
unsettled
purview
Circuit
Judge.
Circuit
Judge.
_______________
question:
3363-3364 (VWPA or
when
it
directly
is the
This
appeal
government a
presents
"victim" within
an
the
18 U.S.C.
provokes the
commission of
crime that,
by design,
We answer this
same time,
a more
Act.
pedestrian sentencing
At
issue
I.
I.
BACKGROUND
BACKGROUND
Defendant-appellant
broker
United
investigation
The
Department
into food
is a
shoemaker who
of second-hand
States
Leroy Gibbens
food stamps.
of
Agriculture
stamp trafficking
In
April 1992,
(USDA)
mounted
in Lewiston,
the
an
Maine.
Zachary J. Gibbens.
In due
course, an undercover
more ways than one, consummated a few small transactions with the
agent,
reselling the
bootleg food
stamps in saloons
and other
____________________
1Zachary Gibbens and Joseph Beaulieu were
appellant at his shoe repair shop in Lewiston.
employed
by
local haunts
told
He also
at his father's
an internuncio.
spring
In a
half-dozen
aggregate face
repaired to Florida,
importuned his
vendor to
intervals.
He
vaguely.
also
Then,
this
period,
furnish more
boasted about
suddenly, to
the
that had an
his son
transactions during
communications
dealt
appellant
stamps at
a putative
In their
continually
more frequent
partner, albeit
appellant's apparent
dismay, the
bought
two
more
discounts.
The redemption
this period
totalled $8,100.
batches
of
value of the
food
stamps
at
deep
The second of
these transactions
government subsequently
the other
shoe:
up a fourteen-count indictment.
count
dropped
of conspiracy
to
unauthorized manner, 18
unlawful possession of
Appellant pleaded
acquire
U.S.C.
and
use
371, and
food stamps
3
food
guilty to one
stamps
six counts
in violation of
in
an
alleging
7 U.S.C.
2024(b).
In
factored in
loss,
22,
see U.S.S.G.
___
a four-level
See U.S.S.G.
___
2F1.1(a).
2F1.1(b)(1)(E)
(specifying
It
amount of
increment
for
two-level
U.S.S.G.
of
enhancement
for
more-than-minimal
2F1.1(b)(2)(A), and
responsibility,
see
___
planning,
U.S.S.G.
3E1.1.
These
see
___
acceptance
computations
produced a GSR of
six-to-twelve
months in prison.
The court imposed
to
a six-month incarcerative
eschewed
of supervised release.
government as
restitution
restitution.
by aggregating
The
appellant to pay
court computed
the face
value of
sentence,
The court
$15,230 to the
the amount
the food
of
stamps
handled
by appellant
retailers who
and
(i.e., the
____
sums owed
by the USDA
monies appellant
to the
for redemption)
paid to
acquire the
sentence.
He showcases
are merely
alternative formulations
of a
impermissible sentencing
factor manipulation
find lacking
another,
in merit.
claim
that the
a
in
claim which we
relate, in one
way or
USDA engaged
restitution on the
kissing
doctrine of
sentencing factor
v. Connell,
_______
manipulation is
determination
as
ordinarily
factbound
review.
to
whether
improper
determination
manipulation
subject
to
exists is
clear-error
(1st Cir.
down
to
phrased in
an
various
assertion
that
ways,
appellant's
the
USDA
theory
revived
the
of
ensuring
appellant
exceeded
boosting
prison
notes
appellant's
sentence).
that
$20,000, see
___
amount of loss
government
over the
In
the GSR
rose
U.S.S.G.
offense
level
support
once
of
the
2F1.1(b)(1)(E);
the sole
(and,
hence,
this
theory,
amount of
loss
that the
last
superfluous, as
the
the
as
the sting.
To
there
press
of
other
suspension of
1992.
agency
workload
had eased
reasonable
necessitated
following a
and the
doubt,
business
the investigation
of
but
government
appellant's
sale
temporary
on July
20,
needed proof,
conspiratorial
beyond a
intent.2
to
prosecution
predisposition
evidenced
by
to deal in food
his
incessant
frequent intervals,
by unfairly
also
suggests
stamps on a
demands for
appellant's
long-term basis, as
more
manipulative conduct.
that
stamps
at more
he was blindsided
Although the
district court
nonetheless
sentencing
should,
in
on an escalating scale,
of modest
factor
the
relevance.
manipulation
usual
surfaces,
case,
focus
the
primarily
accusation
judicial
though
of
gaze
not
____________________
necessarily
motives.3
inquiry
more
on
exclusively
See
___
Brewster, 1
________
into sentencing
the
on
the
government's
F.3d at 55
factor manipulation
government's
activity
conduct
than
and
an
should concentrate
on
the
defendant's
operations
960
F.2d at
caution in staking
the fact
194.
Thus,
valuable,
courts should
that
and
comprise
See
___
proceed with
ruses in motion.
undercover operations
See id. at
___ ___
by their
196.
nature
we
To the
contrary, we
within
think
that the
Executive Branch
is free,
United
______
_____________
_______
conduct
extraordinary
in
misconduct
conventional
of
sting
sort
that
operation
might
from
constitute
____________________
sentencing factor
approached on
the
manipulation.
a case-by-case basis,
potential
dangers of
exist
in
We believe the
level,
sentencing
factor
regard for
manipulation, see
___
particular
defendant's offense
subject must be
case,
the
will
burden
operate
of
to
showing
reduce
sentencing
___ _____________
v.
Morillo, 8
_______
F.3d 864,
"defendant bears
in
871 (1st
Cir. 1993)
(stating that
entitlement to decreases
As with other
fact-sensitive
sentencing issues,
see,
___
S.
carried
the
present
manipulation
presumption
and,
situation
is
therefore,
of official
inherently
gives
misconduct.
rise
We
do
susceptible
to
to
conclusive
not agree.
The
fundamental weakness
government's explanation of
the sequence
in appellant's position.
of events,
apparently
is at least as plausible as
appellant would
8
have us draw.
The
We
the
have
held,
with
erroneous.
See, e.g.,
___ ____
did not
United States v.
_____________
commit clear
chooses to credit
So here.
error in
Jimenez-Otero, 898
_____________
to the
posits
that, on
the
"victim" within
the
This
facts of
proposition
Gifford,
_______
this
interpretation
question
3663-3664.
statutory
See, e.g.,
___ ____
at 472;
pure
U.S.C.
of
17 F.3d
is not
restitutionary provisions of
Protection Act, 18
presents
USDA
v. Commercial
__________
Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).
______________
A.
A.
This case
a grey
area that
separates two
established
legal
problematic,
see
___
government
principles.
infra p.
_____
On
16,
it
one
hand,
is by
now
although
settled
or federal) may
once
that a
be a "victim"
passively
defendant's
suffered
harm
criminal conduct,
resulting
as
directly
from fraud
or
from
the
embezzlement.
applied, and
fraud.
1023, 1027
properly so,
to cases
(6th
863 F.2d
involving
food stamp
175, 178
it incurs costs in
if carried
to fruition
crime that,
would not
directly
States,
______
6869,
harm
the
government.4
(holding that
See,
___
e.g.,
____
Gall v.
____
United
______
"drug buy"
money advanced
by the
____________________
government is
Daddato, 996
_______
that
money
used
United States v.
_____________
(similar) (dictum);
by undercover
Cir. 1990)
government
agent
to
under
the VWPA); United States v. Finley, 783 F. Supp. 1123, 1127 (N.D.
_____________
______
Ill. 1991) (refusing
to order restitution
of funds extorted
cases rely
purview of the
by
do not
907 F.2d
makes
somewhere between
with a crime
this
difficult
is
the spectrum.
that
While
case
circumstances
not involving
resulted in
official
direct loss to
it
falls
we deal
the crime
If consummated
participation, the
the government
in
exactly
the manner
that the
government here
experienced loss.
to restitution
incidents
indeed,
had
____________________
there been
no official
not
have eventuated.
the
more familiar
prototypes, the
losses would
difference between
the face
hybrid nature
difficult
favors
its
government's investigation.
of the
situation more
position
closely resembles
and
neither
result
argues that
this
the prototype
that
argument
debunked.
B.
B.
As a
Statutory Interpretation.
Statutory Interpretation.
________________________
can
easily
be
as an
is as
only to
3663(b)(1).
The VWPA
"victim
states
of
the
that restitution
offense."
18
may
be
U.S.C.
as "any person
conspiracy, or pattern."
Id.
___
3663(a)(2).
In
the idiom of the Act, the question we decide today is whether the
government is a "victim" in
defendant's criminal
the
direct,
conduct and of
conduct" when
foreseeable
it experiences loss
consequence
both
of
the
by the
that is
criminal's
Conceived in
12
believe that
the key
phrase, "harmed
by," as
it
appears
in the VWPA,
is ambiguous.
phrase,
the
is
statute
satisfied
Under
when,
one reading
as
now,
of the
an
entity
which, if adopted,
could
was
fact that
the government
the government's
belief that
the
the
of
A second, more
by" connotes passivity.
the hands of another,
sustained.
It
In
that event,
the loss
investigation and
read with
knowingly incurred
that, in its
Put another
a construction
phrase to be
of cost-benefit analysis.
be taken as signifying
targets
incapacitating
deterring
others
from
"harmed
defies common
usage to envision
experienced or
an entity
that
____________________
6We
13
may
have
legislative
another.
a victim, notwithstanding
experienced
decisions
loss.
to use
one
Courts
particular
cannot
that the
ignore
word instead
of
Co. v. Quinn, 14
___
_____
significance
could
of harm is
to Congress's
choice
1994) (attributing
of words).
Since
Congress
Cir.
1993).
sufficiently
ambiguous.
plausible
Consequently,
legislative history
the
to
alternative interpretations
render
we must
and beyond.
the
statutory
search for
See id. at
___ ___
are
language
guidance in
the
297-98 (describing
Legislative History.
Legislative History.
___________________
1982 in an
effort to
witnesses, and
system.
in
__
to victims
and
1982
U.S.C.C.A.N.
restitution
victim to
2515,
provisions in
The
object
to help
the
enacting Congress,
the
Id. at 2536.
___
eyes of
of
"restore the
state of well-being."
2515-16.
particular was
Although the
that,
in either
is pellucid
the prototypical
14
victim
was a
private individual.
provisions, the
because the
sufficient amount.
preamble to
The
Id. at 2516.
___
only specific
With
the Senate
the "`forgotten
regard to the
example of
a victim
to forgo
prosecutors did
See id. at 2536-37.
___ ___
in a
Absent
a clearly
marked trail
leading in
some other
be
given
their ordinary
meaning.
1986).
United States
_____________
v.
way.
See
___
harm,
hardship . . .
2550 (1981).
."
is "tricked, duped,
or subjected to
18 U.S.C.
3663(a)(2).
However,
defining "victim" on
this occasion, Congress meant to stray far enough from the common
meaning
of
the
word to
eliminate
the
element of
passivity.
first surfaced
in the House
and Senate
Cases."
1990); 136
then
See
___
under the
H 5996 (daily
incorporated
into, and
passed as
part of,
the sprawling
the
definition
grouped
in
single title
explained
enforcement
financial
unlawful
that
comprised one
institutions."
136
under
"purpose"
activities
nine
the
In that
disparate
appellation
its
institution
of
It was
regulatory
affecting
was
"to
enhance
the
federally
with
respect
insured
to
financial
Nov. 2, 1990)
originally existed
highly
probable
intended to accomplish
that
in the courts
on whether
newly
two things.
emergent
Act, makes
definition
was
was
FDIC, could
be regarded as
a "victim" under
the
to clarify the
government's entitlement
to restitution for
16
insurer as a
consequence of savings-and-loan
say, as
a passive
Although
special
sufferer of
definitions
the harm
fraud, that is
caused by such
sometimes
are
taken
to
fraud.
wholly
to
47.28 (5th ed. 1992), this special definition is not of that ilk;
it strengthens,
In
other words,
the force of
our point
notwithstanding the
1990
in this
case.
"victim" poses an
meaning of
the word
of
the
VWPA.
Conversely,
should be subject
there
is
some
to recoupment
basis
in
the
the enacting
a more
the government
orphans; but we
urges here.
further and
not
We do
that, as
sufferers of
the concerns
that
though suggestive,
Act's language
do not
and legislative
speak unequivocally
to the
17
question at hand.
more
recondite sources.
We have
case
of
law
probationary
sources.7
civil
considered analogies
restitution,
conditions,
tort
criminal
law,
and
and
restitution through
a
variety
of
other
vote.
404 U.S.
inquiry,
obscure,"
the meaning
O'Neil, 11
______
F.3d at
of
301
is "a
play when, at
a
background
the end of
criminal statute
n.10; see
___
remains
also Chapman
____ _______
v.
the rule of
lenity, but
played
decisive role
the
on the
one
occasion that
the Court
____________________
U.S.
411 (1990).8
scope
of
When "the
court's
of
ambiguity against
statutory language
authority
to
explained
lenity
. .
order
in
that
. preclude
petitioner .
. .
regarding the
restitution
case,
"longstanding
our resolution
."
Id. at
___
[is]
of the
422 (citations
omitted).
We retrace the Court's steps here.
lenity, we resolve
in favor
of the defendant.
agency that
We hold
On the principle of
statute's meaning
as follows:
a government
a consequence of a
crime that it
through a
restitution order
imposed
an
eschatocol of
at 99;
recovery
Finley,
______
remain
open
783 F.
to
sorts.
reaching
Supp. at
the
As courts
1129,
government,
other methods
notably
fines
of
or
plea bargains.9
____________________
8While
______
therefore, regard Hughey as impeccable authority for the purpose
______
at hand.
the
18
U.S.C.
Though
but also by
in
a given
restitutionary
award,
the principle
of
interpretive
IV.
IV.
CONCLUSION
CONCLUSION
We need go no further.
modify
the
defendant's
sentence
by
deleting
the
award
of
below.
Affirmed as modified.
Affirmed as modified.
____________________
____________________