USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2203
UNITED STATES OF AMERICA,
Appellee,
v.
LEROY GIBBENS,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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William Maselli for appellant.
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Margaret D. McGaughey, Assistant United States Attorney,
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with whom Jay P. McCloskey, United States Attorney, and Raymond
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C. Hurley, Assistant United States Attorney, were on brief, for
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appellee.
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June 1, 1994
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SELYA, Circuit Judge. This appeal presents an
SELYA, Circuit Judge.
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unsettled question: is the government a "victim" within the
purview of the Victim and Witness Protection Act, 18 U.S.C.
3363-3364 (VWPA or the Act), and, thus, entitled to restitution,
when it provokes the commission of a crime that, by design,
directly results in depletion of public coffers? We answer this
question in the negative, concluding that, in such circumstances,
the sovereign is not entitled to restitution under the Act. At
the same time, we resolve a more pedestrian sentencing issue
which, although much bruited by appellant, has little substance.
I. BACKGROUND
I. BACKGROUND
Defendant-appellant Leroy Gibbens is a shoemaker who
did not stick to his last. Instead, Gibbens developed a sideline
as a broker of second-hand food stamps. In April 1992, the
United States Department of Agriculture (USDA) mounted an
investigation into food stamp trafficking in Lewiston, Maine.
The targets of the investigation included appellant and his son,
Zachary J. Gibbens.
In due course, an undercover agent approached Gibbens
the younger and his confederate, Joseph R. Beaulieu III, offering
to sell food stamps at roughly twenty-five cents on the dollar.1
The junior Gibbens, who had followed in his father's footsteps in
more ways than one, consummated a few small transactions with the
agent, reselling the bootleg food stamps in saloons and other
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1Zachary Gibbens and Joseph Beaulieu were employed by
appellant at his shoe repair shop in Lewiston.
2
local haunts for thirty or forty cents on the dollar. He also
told his father of the agent's overtures, and, at his father's
urging, put the two men in contact with each other.
Appellant, having recently repaired to Florida, dealt
with the agent by telephone, wire, or mail, or by using his son
as an internuncio. In a half-dozen transactions during the
spring and summer of 1992, appellant bought stamps that had an
aggregate face value of $12,895, paying the agent approximately
one-fourth of that amount, and resold them at a profit. In their
communications throughout this period, appellant continually
importuned his vendor to furnish more stamps at more frequent
intervals. He also boasted about a putative partner, albeit
vaguely. Then, suddenly, to appellant's apparent dismay, the
stream of sales stopped in July of 1992.
Toward the end of that year, the agent renewed contact.
Appellant bought two more batches of food stamps at deep
discounts. The redemption value of the stamps acquired during
this period totalled $8,100. The second of these transactions
marked the initial face-to-face meeting between appellant and the
agent.
The government subsequently dropped the other shoe:
all three cobblers were arrested and a federal grand jury handed
up a fourteen-count indictment. Appellant pleaded guilty to one
count of conspiracy to acquire and use food stamps in an
unauthorized manner, 18 U.S.C. 371, and six counts alleging
unlawful possession of food stamps in violation of 7 U.S.C.
3
2024(b). The government agreed to dismiss the only other counts
in which appellant was featured.
The district court sentenced appellant on October 22,
1993. In constructing the guideline sentencing range (GSR), the
court started at offense level six. See U.S.S.G. 2F1.1(a). It
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then factored in a four-level upward adjustment for amount of
loss, see U.S.S.G. 2F1.1(b)(1)(E) (specifying increment for
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fraud cases involving losses ranging from $20,000 to $39,999.99),
a two-level enhancement for more-than-minimal planning, see
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U.S.S.G. 2F1.1(b)(2)(A), and a two-level credit for acceptance
of responsibility, see U.S.S.G. 3E1.1. These computations
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yielded an adjusted offense level of ten. For a defendant with a
negligible record of prior criminality (Criminal History Category
I), this adjusted offense level produced a GSR of six-to-twelve
months in prison.
The court imposed a six-month incarcerative sentence,
to be followed by three years of supervised release. The court
eschewed any fine, but ordered appellant to pay $15,230 to the
government as restitution. The court computed the amount of
restitution by aggregating the face value of the food stamps
handled by appellant (i.e., the sums owed by the USDA to the
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retailers who ultimately presented those stamps for redemption)
and then subtracting the monies appellant paid to acquire the
stamps on the black market.
Appellant now challenges his sentence. He showcases
several assignments of error. The first two entries are merely
4
alternative formulations of a claim that the USDA engaged in
impermissible sentencing factor manipulation a claim which we
find lacking in merit. The other items relate, in one way or
another, to the order for restitution. Because we conclude that
the government does not qualify for statutory restitution on the
facts of this case, we need not address the remaining challenges
to the restitution order.
II. SENTENCING FACTOR MANIPULATION
II. SENTENCING FACTOR MANIPULATION
The doctrine of sentencing factor manipulation is a
kissing cousin of the doctrine of entrapment. See United States
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v. Connell, 960 F.2d 191, 194 (1st Cir. 1992) (coining term). A
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determination as to whether improper manipulation exists is
ordinarily a factbound determination subject to clear-error
review. See United States v. Brewster, 1 F.3d 51, 54 (1st Cir.
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1993); Connell, 960 F.2d at 193.
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Though phrased in various ways, appellant's theory
boils down to an assertion that the USDA revived the
investigation, after soft-pedaling it for four months, not with a
view toward bringing the conspirators to heel, but for the sole
purpose of boosting appellant's offense level (and, hence,
ensuring a prison sentence). In support of this theory,
appellant notes that the GSR rose once the amount of loss
exceeded $20,000, see U.S.S.G. 2F1.1(b)(1)(E); that the last
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transaction, which exposed him to this increase by bringing the
amount of loss over the $20,000 mark, was superfluous, as the
government had him dead to rights four months earlier; and that,
5
as soon as the government reached the $20,000 plateau, it halted
the sting.
To be sure, the sequence of events is suggestive but
there is another side to the story. By the USDA's account, the
press of other agency business necessitated a temporary
suspension of the investigation following a sale on July 20,
1992. The hiatus ended four months later because the agency's
workload had eased and the government needed proof, beyond a
reasonable doubt, of appellant's conspiratorial intent.2
Moreover, the USDA was hoping, based on appellant's allusions to
a supposed business partner, to land a bigger fish.
The prosecution also suggests that appellant's
predisposition to deal in food stamps on a long-term basis, as
evidenced by his incessant demands for more stamps at more
frequent intervals, undermines his claim that he was blindsided
by unfairly manipulative conduct. Although the district court
made an express, fully warranted finding that appellant remained
ready, willing, and eager to continue dealing bootleg food stamps
indefinitely and on an escalating scale, the government's point
is nonetheless of modest relevance. When an accusation of
sentencing factor manipulation surfaces, the judicial gaze
should, in the usual case, focus primarily though not
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2On this scenario, the final transaction assumed particular
importance because previous deals had been conducted from afar,
and, without a face-to-face encounter, the government might be
hard pressed to verify appellant's identity in court. Cf., e.g.,
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B. Franklin, Poor Richard's Almanac (1758) (warning that "for
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want of a nail the shoe is lost").
6
necessarily exclusively on the government's conduct and
motives.3 See Brewster, 1 F.3d at 55 n.5 (explaining that an
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inquiry into sentencing factor manipulation should concentrate
more on the government's activity than on the defendant's
predisposition); see also Connell, 960 F.2d at 194.
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Undercover operations comprise a valuable, and
generally lawful, weapon in the government's armamentarium. See
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Connell, 960 F.2d at 194. Thus, courts should proceed with
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caution in staking out rules that will hinder government agents
who seek lawfully to set such ruses in motion. See id. at 196.
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"Despite the fact that undercover operations by their nature
involve elements of furtiveness, duplicity, and manipulation, we
have never held that such initiatives are per se unfair. To the
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contrary, we think that the Executive Branch is free, within
broad limits, to set such snares for unwary criminals." United
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States v. Gifford, 17 F.3d 462, 470-71 (1st Cir. 1994); see also
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United States v. Santana, 6 F.3d 1, 5-6 (1st Cir. 1993).
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We can plot no bright line to separate the government's
ordinary conduct in a conventional sting operation from
extraordinary misconduct of a sort that might constitute
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3To be sure, a defendant's predisposition, or the lack
thereof, may have evidentiary significance in an assessment of
the government's motives and conduct. Moreover, one can imagine
different species of sentencing factor manipulation, in some of
which predisposition may be of greater relevance. See, e.g.,
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Connell, 960 F.2d at 196 (suggesting that sentencing factor
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manipulation may include "overbearing[ing] the will of a person
predisposed only to committing a lesser crime"). We need not
probe these points too deeply, for, wholly apart from any
evidence of appellant's predisposition, the district court's
finding that no manipulation occurred is supportable.
7
sentencing factor manipulation. We believe the subject must be
approached on a case-by-case basis, albeit with due regard for
the potential dangers of sentencing factor manipulation, see
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Connell, 960 F.2d at 196. Because the phenomenon, if it is found
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to exist in a particular case, will operate to reduce a
defendant's offense level, the burden of showing sentencing
factor manipulation rests with the defendant. See United States
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v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993) (stating that a
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"defendant bears the burden of proving entitlement to decreases
in the offense level"); United States v. Ocasio, 914 F.2d 330,
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332-33 (1st Cir. 1990) (same; citing other cases). As with other
fact-sensitive sentencing issues, see, e.g., United States v.
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David, 940 F.2d 722, 739 (1st Cir. 1991), cert. denied, 112 S.
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Ct. 908, 1298, 2301 (1992), the burden of proof must be carried
by a preponderance of the evidence.
In an effort to hoist this burden, appellant intimates
that the present situation is inherently susceptible to
manipulation and, therefore, gives rise to a conclusive
presumption of official misconduct. We do not agree. The
inquiry must proceed as a stereotypical exercise in factfinding,
linked to an allocation of the burden of proof but uncluttered by
artificial presumptions. Putting matters in this perspective
reveals the fundamental weakness in appellant's position. The
government's explanation of the sequence of events, apparently
credited by the district court, is at least as plausible as the
adverse inference that appellant would have us draw. We have
8
held, time and again, that when a sentencing court is confronted
with two reasonable views of the record, and chooses to credit
one such view rather than the other, its choice cannot be termed
clearly erroneous. See, e.g., United States v. Ruiz, 905 F.2d
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499, 508 (1st Cir. 1990); United States v. Jimenez-Otero, 898
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F.2d 813, 815 (1st Cir. 1990). So here. Consequently, the lower
court did not commit clear error in holding appellant to the
devoir of persuasion and rejecting his claim of sentencing factor
manipulation.
III. THE GOVERNMENT AS VICTIM
III. THE GOVERNMENT AS VICTIM
In his most portentous assignment of error, appellant
posits that, on the facts of this case, the USDA is not a
"victim" within the meaning of the restitutionary provisions of
the Victim and Witness Protection Act, 18 U.S.C. 3663-3664.
This proposition presents a pure question of statutory
interpretation and, as such, invites de novo review. See, e.g.,
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Gifford, 17 F.3d at 472; Liberty Mut. Ins. Co. v. Commercial
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Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).
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A. Conceptualizing the Problem.
A. Conceptualizing the Problem.
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This case falls into a grey area that separates two
established legal principles. On one hand, although once
problematic, see infra p. 16, it is by now settled that a
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government entity (local, state, or federal) may be a "victim"
for purposes of the VWPA (and may be awarded restitution) when it
has passively suffered harm resulting directly from the
defendant's criminal conduct, as from fraud or embezzlement.
9
See, e.g., Ratliff v. United States, 999 F.2d 1023, 1027 (6th
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Cir. 1993) (collecting cases); United States v. Hand, 863 F.2d
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1100, 1103 (3d Cir. 1988) (collecting cases). This principle has
been applied, and properly so, to cases involving food stamp
fraud. See, e.g., United States v. Dudley, 739 F.2d 175, 178
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(4th Cir. 1984).
On the other hand, the federal courts are consentient
to the effect that the government is not a "victim" for purposes
of VWPA (and may not be awarded restitution) to the extent that
it incurs costs in the clandestine provocation of a crime that,
if carried to fruition under ordinary circumstances, would not
directly harm the government.4 See, e.g., Gall v. United
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States, ___ F.3d ___, ___ (6th Cir. 1994) [1994 U.S. App. LEXIS
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6869, at *14] (holding that "drug buy" money advanced by the
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4Courts interpreting analogous state statutes have divided
on this type of question. For example, some courts hold that,
when a government agency disburses money in a drug sting, it is
not a "victim" entitled to restitution. See, e.g., State v.
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Newman, 623 A.2d 1355, 1364 (N.J. 1993); People v. Evans, 461
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N.E.2d 634, 639 (Ill. App. 1984); see also Evans v. Garrison, 657
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F.2d 64, 66 (4th Cir. 1981) (interpreting North Carolina
statute); People v. Rowe, 544 N.Y.S.2d 97, 98 (App. Div. 1989),
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aff'd, 554 N.E.2d 1277 (N.Y. 1990) (same, but later superseded by
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statute as discussed in People v. Davis, 582 N.Y.S. 2d 249, 250
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(App. Div. 1992)). However, some courts have held to the
contrary. See, e.g., Commonwealth v. Runion, 628 A.2d 904, 906
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(Pa. Super. 1993); State v. Rios, 465 N.W.2d 611, 613 (Neb.
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1991); State v. Stallings, 342 S.E.2d 519, 521 (N.C. 1986)
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(distinguishing and limiting Evans v. Garrison, supra); Oregon v.
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Pettit, 698 P.2d 1049, 1051 (Or. App. 1985); see also Montana v.
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Fertterer, 841 P.2d 467, 473 (Mont. 1992) (applying same rule in
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sting directed at poaching scheme); State v. Hernandez, 822 P.2d
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1011, 1014 (Idaho App. 1991) (allowing restitution for costs of
narcotics investigation). Because these cases tend to turn on
the wording of the statutes involved, they are not particularly
instructive for our purposes.
10
government is not recoverable under the VWPA); United States v.
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Daddato, 996 F.2d 903, 905 (7th Cir. 1993) (similar) (dictum);
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United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir. 1990)
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(holding that money used by undercover government agent to
purchase false identification documents is not recoverable under
the VWPA); United States v. Finley, 783 F. Supp. 1123, 1127 (N.D.
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Ill. 1991) (refusing to order restitution of funds extorted by
defendant from undercover agent). All four of these cases rely
at some level on the generality that investigatory costs do not
constitute a "loss" within the purview of the Act because such
costs are best conceived as voluntary outlays for the procurement
of evidence.5 See Gall, ___ F.3d at ___ [1994 U.S. App. LEXIS
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6869 at *16]; Daddato, 996 F.2d at 905; Salcedo-Lopez, 907 F.2d
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at 98; Finley, 783 F. Supp. at 1128.
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What makes this case difficult is that it falls
somewhere between the two ends of the spectrum. While we deal
with a crime provoked by an undercover investigation, the crime
was designed to inflict harm on the government. If consummated
under circumstances not involving official participation, the
crime would have resulted in direct loss to the government in
exactly the manner that the government here experienced loss.
Nonetheless, the government instigated the particular incidents
for which it now claims the right to restitution indeed, had
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5The relevant provision of the Act states that restitution
may be ordered "in the case of an offense resulting in damage to
or loss or destruction of property of a victim of the offense."
18 U.S.C. 3663(b)(1).
11
there been no official participation, the claimed losses would
not have eventuated. This means that here, unlike in either of
the more familiar prototypes, the difference between the face
value of the food stamps and the amount appellant paid for them
was both a calculated consequence of the defendant's crime and a
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calculated cost of the government's investigation. As a result
of the hybrid nature of the loss, each side argues that this
difficult situation more closely resembles the prototype that
favors its position and neither argument can easily be
debunked.
B. Statutory Interpretation.
B. Statutory Interpretation.
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We envision the task of resolving this conundrum as an
exercise in statutory construction. Our role, of course, is as
interpreters of the words chosen by Congress, not as policymakers
or enlargers of congressional intent. This role requires that we
start with the statutory text.
1. Text. The VWPA states that restitution may be
1. Text.
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awarded only to a "victim of the offense." 18 U.S.C.
3663(b)(1). A "victim of an offense" is defined as "any person
directly harmed by the defendant's criminal conduct in the course
of the scheme, conspiracy, or pattern." Id. 3663(a)(2). In
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the idiom of the Act, the question we decide today is whether the
government is a "victim" in the sense that it is "harmed by the
defendant's criminal conduct" when it experiences loss that is
the direct, foreseeable consequence both of the criminal's
conduct and of the government's own machinations. Conceived in
12
this way, the question is one of first impression.6
We believe that the key phrase, "harmed by," as it
appears in the VWPA, is ambiguous. Under one reading of the
phrase, the statute is satisfied when, as now, an entity
experiences a loss directly and foreseeably caused in whole or in
part by the criminal's conduct. But this reading represents one
choice out of several. For example, it is also entirely possible
that the word "harm" denotes "aggregate harm" a construction
which, if adopted, would require the phrase to be read with a
view toward some type of cost-benefit analysis. In that event,
the very fact that the government knowingly incurred the loss
could be taken as signifying that, in its estimation, the game
was worth the candle. Put another way, the fact could evidence
the government's belief that the overall gain incapacitating
the targets of the investigation and deterring others from
embarking on similar schemes outweighed the out-of-pocket loss.
A second, more intriguing possibility is that "harmed
by" connotes passivity. In ordinary usage, "harm" is suffered at
the hands of another, while "loss" may be merely experienced or
sustained. It defies common usage to envision an entity that
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6We realize that United States v. Dougherty, 810 F.2d 763
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(8th Cir. 1987), involved substantially identical facts.
Nonetheless, the defendant there framed the legal issue
exclusively in terms of "loss," id. at 773. We agree with the
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Dougherty court that the USDA incurs a loss in the course of a
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food stamp sting. See id. But this conclusion, standing alone,
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does not mean that the USDA may recover in restitution for the
loss when it stems from the cut-rate sale of food stamps by an
authorized government agent in the course of a sting. Under the
VWPA, the existence of "loss" does not end the requisite inquiry,
but, rather, marks its midpoint.
13
planned and provoked a crime as a victim in the same sense that a
passive sufferer of harm is a victim, notwithstanding that the
entity may have experienced loss. Courts cannot ignore
legislative decisions to use one particular word instead of
another. See, e.g., United States ex rel. Springfield Term. Ry.
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Co. v. Quinn, 14 F.3d 645, 653-54 (D.C. Cir. 1994) (attributing
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significance to Congress's choice of words). Since Congress
could have employed a more neutral construct in framing the Act,
itschoice of a phrase connoting passivity may well be meaningful.
A statute is ambiguous if it reasonably can be read in
more than one way. See United States v. O'Neil, 11 F.3d 292, 297
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(1st Cir. 1993). Here, the alternative interpretations are
sufficiently plausible to render the statutory language
ambiguous. Consequently, we must search for guidance in the
legislative history and beyond. See id. at 297-98 (describing
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standard protocol for statutory interpretation).
2. Legislative History. The VWPA was first enacted in
2. Legislative History.
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1982 in an effort to afford greater protection to victims and
witnesses, and to enhance their stature in the criminal justice
system. See S. Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted
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in 1982 U.S.C.C.A.N. 2515, 2515-16. The object of the
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restitution provisions in particular was to help "restore the
victim to his or her prior state of well-being." Id. at 2536.
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Although the word "victim" was not precisely defined in either
the original Act or its accompanying commentary, it is pellucid
that, in the eyes of the enacting Congress, the prototypical
14
victim was a private individual. The preamble to the Senate
Report laments that the victim is all too often the "`forgotten
person'" in the legal process. Id. at 2516. With regard to the
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restitution provisions, the only specific example of a victim
describes an elderly lady who, after being mugged, had to forgo
surgery because the prosecutors did not seek restitution in a
sufficient amount. See id. at 2536-37.
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Absent a clearly marked trail leading in some other
direction, courts should presume that words used in a statute are
to be given their ordinary meaning. See United States v.
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Dawlett, 787 F.2d 771, 774 (1st Cir. 1986). Here, the signposts
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embedded in the legislative history indicate quite vividly that,
in enacting the VWPA, Congress used the word "victim" in such a
way. A victim is commonly considered to be a passive sufferer of
harm, that is, someone who is "tricked, duped, or subjected to
hardship . . . ." Webster's Third New International Dictionary
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2550 (1981). Read against this lexicographical backdrop, calling
the organization that sets up a sting and carries it out a victim
is like calling the rabbit who lurks in Houdini's hat a magician.
To be sure, Congress amended the VWPA in 1990, adding a
statutory definition of "victim" as one "directly harmed by the
defendant's criminal conduct." 18 U.S.C. 3663(a)(2). However,
we resist the conclusion that, by specially defining "victim" on
this occasion, Congress meant to stray far enough from the common
meaning of the word to eliminate the element of passivity.
Rather, the legislative history attests that highly idiosyncratic
15
concerns motivated Congress's action.
The amendment first surfaced in the House and Senate
versions of the proposed "Banking Law Enforcement Act" under the
caption, "Enhancement of Ability to Order Restitution in Certain
Fraud Cases." See 136 Cong. Rec. H 5996 (daily ed., July 31,
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1990); 136 Cong. Rec. S 18322 (daily ed., Nov. 2, 1990). It was
then incorporated into, and passed as part of, the sprawling
Crime Control Act of 1990, P.L. 101-647, 104 Stat. 4789. In that
incarnation, the definition comprised one of nine disparate
provisions grouped in a single title under the appellation
"Banking Law Enforcement." In floor remarks, the sponsor of that
title explained that its "purpose" was "to enhance the
enforcement powers of the Department of Justice and the federal
financial institution regulatory agencies with respect to
unlawful activities affecting federally insured financial
institutions." 136 Cong. Rec. E 3684 (daily ed., Nov. 2, 1990)
(remarks of Rep. Schumer).
We think that this history, coupled with the division
of opinion that originally existed in the courts on whether a
government entity could ever be a "victim" under the Act, makes
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it highly probable that the newly emergent definition was
intended to accomplish two things. Broadly, the amendment was
meant to clarify that, in appropriate cases, a government entity,
say, FSLIC or FDIC, could be regarded as a "victim" under the
Act. More narrowly, the amendment was designed to clarify the
government's entitlement to restitution for losses suffered qua
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16
insurer as a consequence of savings-and-loan fraud, that is to
say, as a passive sufferer of the harm caused by such fraud.
Although special definitions sometimes are taken wholly to
supplant common usage, see 2A Sutherland Statutory Construction
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47.28 (5th ed. 1992), this special definition is not of that ilk;
it strengthens, rather than dissipates, the force of our point
anent common usage. In other words, notwithstanding the 1990
amendment, the presumption in favor of ordinary meaning continues
to apply in this case. And the ordinary meaning of the word
"victim" poses an obvious problem for the government's view of
the VWPA universe.
To sum up, nothing in the legislative history of either
the organic Act or its amendments indicates that losses incurred
in government sting operations should be subject to recoupment
under the VWPA. Conversely, there is some basis in the
legislative history of the VWPA for believing that the enacting
and amending Congresses both viewed the word "victim" in a more
restrictive manner than the government urges here. We do not
mean to suggest that the benefits of the VWPA should be confined
to widows and orphans; but we are constrained to note that, as
the status of victimhood is expanded beyond passive sufferers of
harm, we move further and further away from the concerns that
drove Congress to pass the statute.
C. The Rule of Lenity.
C. The Rule of Lenity.
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We recognize that the Act's language and legislative
history, though suggestive, do not speak unequivocally to the
17
question at hand. In light of this uncertainty, we have examined
more recondite sources. We confess, however, that our quest has
proven unrewarding; by and large, the government's claim resists
analogy. We have considered analogies from the doctrines and
case law of civil restitution, criminal restitution through
probationary conditions, tort law, and a variety of other
sources.7 None offer compelling guidance.
When all else fails to bring sufficient lucidity to the
meaning of a penal statute, the rule of lenity casts the decisive
vote. That rule, which mandates the resolution of ambiguities in
a criminal statute favorably to the defendant, see, e.g., United
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States v. Bass, 404 U.S. 336, 347-49 (1971), is "a background
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principle that properly comes into play when, at the end of a
thorough inquiry, the meaning of a criminal statute remains
obscure," O'Neil, 11 F.3d at 301 n.10; see also Chapman v.
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United States, 111 S. Ct. 1919, 1926 (1991).
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This is not only the proper time to invoke the rule of
lenity, but also the proper place; after all, the rule of lenity
played the decisive role on the one occasion that the Court
ventured to interpret the VWPA. See Hughey v. United States, 495
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____________________
7The interested reader may wish to consult various works
that afford broad-gauged historical perspectives on the subject.
See, e.g., Stephen Schafer, Compensation and Restitution to
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Victims of Crime (2d ed. 1970); Richard E. Laster, Criminal
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Restitution: A Survey of its Past History and an Analysis of its
_________________________________________________________________
Present Usefulness, 5 U. Rich. L. Rev. 71 (1970).
__________________
18
U.S. 411 (1990).8 When "the statutory language regarding the
scope of a court's authority to order restitution [is]
ambiguous," the Court explained in that case, "longstanding
principles of lenity . . . preclude our resolution of the
ambiguity against petitioner . . . ." Id. at 422 (citations
___
omitted).
We retrace the Court's steps here. On the principle of
lenity, we resolve lingering doubts as to the statute's meaning
in favor of the defendant. We hold as follows: a government
agency that has lost money as a consequence of a crime that it
actively provoked in the course of carrying out an investigation
may not recoup that money through a restitution order imposed
under the VWPA.
We add an eschatocol of sorts. As courts reaching
similar conclusions have observed, see, e.g., Salcedo-Lopez, 907
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F.2d at 99; Finley, 783 F. Supp. at 1129, other methods of
______
recovery remain open to the government, notably fines or
voluntary agreements for restitution incident to plea bargains.9
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8While Hughey's precise holding, denying restitution for
______
losses resulting from offenses other than the offense of
conviction, has been superseded partially by the 1990 amendment
to 18 U.S.C. 3663(a)(3), this development does not throw the
slightest doubt on Hughey's hermeneutical approach. We,
______
therefore, regard Hughey as impeccable authority for the purpose
______
at hand.
9Courts are divided on whether drug buy money may be
recovered in restitution as a condition of supervised release.
Compare Daddato, 996 F.2d at 906 (interpreting 18 U.S.C. 3583
_______ _______
to permit restitution of drug buy money as a condition of
supervised release) with Gall, ___ F.3d at ___ [1994 U.S. App.
____ ____
LEXIS at *14] (implicitly interpreting same statute as not
permitting a court to require restitution of drug buy money as a
19
Therefore, the main practical consequence of our holding, in the
long term, is that the awards to the government in "sting" cases
will be influenced not only by the amount of loss, but also by
other factors, see 18 U.S.C. 3572(a). Though in a given
___
situation the resulting penalty may be smaller or larger than the
foregone restitutionary award, the principle of interpretive
integrity will in all events be honored.
IV. CONCLUSION
IV. CONCLUSION
We need go no further. We direct the district court to
modify the defendant's sentence by deleting the award of
restitution; and, with that modification, we affirm the judgment
below.
Affirmed as modified.
Affirmed as modified.
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condition of supervised release); see also id. at *17-*20 (Jones,
___ ____ ___
J., concurring) (criticizing Daddato). We do not plumb these
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depths, as the district court neither imposed a fine nor attached
a special monetary condition to the term of supervised release.
20
