United States of America v. Astra Motor Cars, Inc., No. 10-520 (2d Cir. 2011)
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10-520-cr(L) USA v. Pescatore 10-0520-cr(L), 10-0615-cr(con) USA v. Pescatore 10-0520-cr{L) , 10-0615-cr{con) USA v. Pescatore 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 5 (Submitted: Decided: January 3, 2011 February 23, 2011) Docket Nos. 10-0520-cr{L), -0615-cr 6 7 8 UNITED STATES OF AMERICA, 9 Appellee, 10 - v. 11 12 13 MICHAEL PESCATORE, 14 Before: Defendant-Appellant. 15 KEARSE, WINTER, and HALL, Circuit Judges. Appeal from an order of the United States District Court 16 for 17 denying 18 compelling the government to use a portion of his forfeited assets 19 to satisfy his restitution obligations, or vacating so much of the 20 judgment of conviction as ordered him to pay restitution in excess 21 of his victims' actual losses. 22 23 24 25 26 27 28 29 the Eastern District defendant's of New York, postconviction Thomas motion for C. an Platt, Judge, order either Affirmed, and remanded for further proceedings. LORETTA E. LYNCH, United States Attorney for the Eastern District of New York, Brooklyn, New York (Varuni Nelson, Beth P. Schwartz, Kathleen A. Nandan, Assistant United States Attorneys, Karen R. Hennigan, Special Assistant United States Attorney, Brooklyn, New York, of counsel), for Appellee. 1 JAMES 2 3 R. FROCCARO, Jr., Port Washington, York, for Defendant-Appellant. New KEARSE, Circuit Judge: Defendant 4 Michael Pescatore, who was convicted of 5 operating chop shops in violation of 18 U.S.C. 6 of extortion offenses in violation of 18 U.S.C. §§ 1951 and 2, and 7 who, in his plea agreement with the government, agreed to forfeit 8 $2.5 million 9 restitution in an amount not less than $3 million, appeals from an of in the cash, plus postconviction 13 government to use a portion of his forfeited assets to relieve him 14 of 15 18 U.S.C. 16 the 17 restitution, 18 suffered 19 Pescatore contends principally 20 compelled to use a portion of the forfeited assets to satisfy his 21 restitution obligations because no law prohibits such restoration; 22 (2 ) 23 restitution 24 victim losses 25 ("PSR") that 26 $3 million; and his motion for an restitution obligations, 981 (e) (6), § amended judgment order Judge, denying his compelling either a process Eastern the called "restoration, II or vacating as illegal the requirement in of conviction that he pay $3 million in to the extent that that sum exceeds the total losses by that Platt, the pay 12 C. for to District Thomas Court and 11 York, District estate, order New States real 10 of United certain §§ 2322 and 2, and his the is identified judgment illegal listed chop (1) in the the victims. him extent pages to pay that the of are attached to the amended (3) On appeal, that the government should be ordering to shop the $3 million total in amount of presentence judgment report is less than that his obligation should be further reduced - 2 - 1 because the actual amount of victim losses totals even less than 2 the 3 argues 4 the form of restoration lay solely within the Attorney General's 5 discretion, which was not abused; 6 conviction obligation to 7 $2,559,611.79 to match the losses identified in the PSR; and (3) 8 that any contention that the $2,559,611.79 figure is erroneous is 9 subject to plain-error analysis and does not meet that standard. amount shown (1) in the PSR. In opposition, the government that the decision whether to grant Pescatore relief in reduced (2) Pescatore's that the amended judgment of restitution For the reasons that follow, we conclude that the district 10 11 court did not err in rej ecting Pescatore's restoration request; 12 that the 13 that Pescatore 14 Pescatore is not entitled to an immediate--if any--order excusing 15 him from paying that amount. 16 the restitution amounts needed to make Pescatore's victims whole, 17 plus interest that Pescatore is obligated to pay on the properly 18 ordered 19 18 U.S.C. 20 subj ect for unpaid resti tution amounts as to which he is or was 21 delinquent and/or in default, see id. 22 all required payments of restitution, 23 related penalties 24 entitled to a refund of the remainder. 25 denial of Pescatore's motion but remand for further proceedings. amended judgment did not was restitution § ordered amounts 3612 (f) (1), total plus less to reduce pay in the $3 million amount restitution; and that The amount to be paid is limited to that he has not any penalties §§ to paid, which he see may be 3612 (g), 3572(h) -(i). interest, than $3 million, - 3 timely If and restitutionPescatore will be Accordingly, we affirm the 1 BACKGROUND 1. To the extent relevant to the present case, 2 Pescatore was 3 first arrested, by law enforcement officers of Suffolk County, New 4 York, 5 Inc. 6 owner, were indicted by a New York State grand jury on charges of 7 fraud 8 law; 9 laundering. in mid-2003. ("Astra"), and He and others, of which Pescatore was president and 50 -percent enterprise Astra including Astra Motor Cars, was corruption in violation of New York State also indicted In late 2003, action pursuant on state-law charges of money the United States commenced an in rem 10 civil 11 21 U.S.C. 12 against several properties owned In whole or in part, directly or 13 indirectly, by Pescatore, 14 The complaint in that action alleged, 15 engaged 16 vehicle parts and had defrauded customers. 17 322 Richardson Street, 18 24, 19 56-93.) 20 trafficking 21 accommodate hidden compartments; that Astra accepted large sums of 22 cash from that organization; and that Astra's other owner, Sanford 23 Edmonston, 24 cash was proceeds of narcotics trafficking. (See id. ~~ 25 94-99.) of defendant 881 (a) (6) §§ in 2003) to illegal and also The that 981(a) (1) (A) §§ (the "civil and forfeiture (C) and action") including one property leased to Astra. No. in inter alia, stolen Complaint" that or that Astra had vehicles and stolen (See United States v. 2:03-cv-6456-TCP alleged organization knew (7) trafficking ( "Forfei ture It 18 U.S.C. (E . D.N.Y. "complaint") Astra sold specially-ordered to a vehicles filed Dec. ~~ 21-23, narcotics that could the buyers were drug dealers and that the complaint sought - 4 - forfeiture the 19-20, 1 properties on the ground 2 traceable to "specified unlawful activity" within the meaning of 3 18 U.S.C. 4 complaint. 1956 (c) (7), § that including (Forfeiture Complaint Pescatore, Astra, 5 they were grand jury from proceeds the activities alleged in the ~~ 100-62, 173-75.) and numerous others were indicted by a 6 federal 7 indictment 8 operation 9 alteration or removal of motor vehicle identification numbers in (the of in derived "Chop chop Shop shops 84-count second Indictment" ) - -alleging, in 18 U.S.C. conspiracy to defraud the United States in violation of id. 12 and money laundering in violation of id. 13 2005, Pescatore in violation of id. al ia, 2322, § in most of the counts. February fraud inter 11 In mail violation · of superseding violation of § 511, An 10 14 id. 2004. was § 1341, § § 371, 1956 - -named Pescatore also charged, in 15 counts of a new federal 16 number of individuals. 17 tried, and Pescatore was convicted on three of the six counts. 18 A. SlX indictment, with extort ing money from a In February 2006, the extortion case was The Plea Agreement and the Judgment of Conviction 19 In March 2006, pursuant to a plea agreement dated March 9, 20 2006 (the "Plea Agreement" or "Agreement"), 21 guilty to one count of the Chop Shop Indictment 22 charged him with owning, operating, maintaining, or controlling a 23 chop shop, 24 that, 25 "engaged in receiving stolen motor vehicle parts" that were used in violation of 18 U.S.C. § 2322. Pescatore pleaded (count 22), which Pescatore admitted in that operation from March 1987 through June 14, 2004, he - 5 - to rebuild damaged motor vehicles II 1 II 2 March 9, 3 apart, 4 also 5 identification 6 unwitting customers. The was Hearing Transcript, (See id. at 22). 7 (Pl ea 2006 (IIPlea Tr. II), at 19-20) and hired employees to take rebuild, and sell such vehicles involved, inter numbers alia, so altering that Plea Agreement (id. stolen at 21). and cars designed The scheme removing could vehicle be sold to settle not to only the 8 Chop Shop Indictment charges but also the civil forfeiture action 9 and the punishment to be imposed for the three counts on which 10 Pescatore 11 Guidelines-recommended range of imprisonment for his chop shop and 12 extortion offenses 13 government agreed 14 against Pescatore in the Chop Shop Indictment and agreed that an 15 appropriate total prison term for the chop shop offense and the 16 extortion 17 ~~ was convicted offenses was to in the 188-235 drop would the be extortion case. The months. In remaining 50-odd 132 months. advisory the Agreement, (See counts Plea alleged Agreement 4-5, 7.) 18 In addition to agreeing to plead guilty to count 22 of the 19 Chop 20 restitution of "no less than $3 million": 21 22 Shop Indictment, Pescatore agreed to, inter alia, The count [to which Pescatore agreed to plead guilty] carries the following statutory penalties: 23 24 25 26 27 28 29 the e. Restitution: In an amount to be determined by the Court, but no less than $3 million. The parties agree that restitution with respect to the defendant's tax liabilities may be ordered by the Court (18 U.S.C. §§ 3663 and 3663A). - 6 pay ~ 1 (Plea Agreement 2 applied to Pescatore's federal tax liabilities but became moot, as 3 Pescatore paid that debt prior to being sentenced. In 4 5 agreed to 6 id. 7 States 8 ("USAO" 9 Justice 10 ~ The settlement of forfeit $2.5 final the civil million in sentence of this provision forfeiture action, cash, real plus Attorney's or Office "Office") ("DOJ" or for the Eastern District Pescatore estate With respect to the assets to be forfeited, 9). (see the United of New York agreed to recommend that the Department of "Department") grant restoration, relieving Pescatore of all or part of his restitution obligation: 11 12 13 14 15 16 17 18 19 20 1. e . ) . The Office will recommend that any net proceeds derived from the sale of the Forfeited Apsets be made available to eligible victims, pursuant to 18 U.S.C. § 981(e), 28 C.F.R. Pt. 9 and Attorney General Order No. 2088-97 (June 14, 1997), it being understood that the Office has authority only to recommend and that the final decision whether to grant such relief rests with the Department of Justice, which will make its decision in accordance with applicable law. (rd. ~ 17.) 21 Pescatore was sentenced some guilty. plea 23 Pescatore informed the court that, 24 turned over many millions of dollars in assets 25 see Hearing Transcript, 26 satisfaction 27 district court to impose a prison term of no more than 132 months 28 in accordance with the Plea Agreement. of At his the October January 29, forfeiture 24, years after his March 2006 22 29 of 2~ 2008 sentencing in the interim, 2010, he had timely (worth $9 million, at 17, obligations, and 18) in complete he MR. STAMBOULIDIS [Pescatore's then-counsel] 30 - 7 - hearing, urged the We had entered an agreement with the government that's documented in that written plea agreement. We stand here with the government with little if any disagreement as to what should happen here today. As we indicated to the court in the plea agreement, and at the time of the plea the parties, the government and Mr. Pescatore, are asking for a concurrent sentence on both matters. 1 2 3 4 5 6 7 8 9 10 We obviously are here to ask for the court's--to honor and accept the plea, which I believe you indicated in words or substance that you have no problem with, but obviously now that you have the benef i t of a presentence report and much more information than you had then to make up your mind. 11 12 13 14 15 16 17 (Sentencing 18 Transcript, (II Sentencing Tr. II) , at 3-4.) The 19 court October indicated that it was prepared to sentence Pescatore to, 21 with the Plea Agreement, but it expressed concern that discussion 22 in 23 amounts" 24 Prisons. 25 ("AUSAII) 26 amended to match 27 record does not indicate that any other objection had been made to 28 the PSR. 29 PSR "about (id. at 180 11) Pescatore agreed that the 132 months' 2008 20 the inter alia, 24, months could In prove and the it would custody be as confusing Assistant the to United appropriate Plea Agreement. agreed the Bureau States that (See id. upon of Attorney the PSR at 12-14.) be The With regard to restitution, the government asked the court 30 to 31 Agreement, 32 agreed to recommend restoration: 33 imprisonment in accordance order payment and of $3 million Pescatore reminded [AUSA] GATZ: - 8 in the accordance court that with the the USAO Plea had 1 2 3 4 5 I just ask the court to enter a resti tution amount in the amount of $3 million as per the plea agreement, and the government does stand by its agreement to recommend concurrent sentences on both of the matters. 6 7 8 MR. STAMBOULIDIS: With respect to Mr. Pescatore being ordered to pay any more money, 9 I just want to remind the court this man paid millions of dollars in forfeiture, agreed-upon forfeiture, ahead of schedule in many instances, as I indicated, and we had an understanding and I would ask the court to keep that in mind when it orders restitution that the forfeited moneys, the US Attorney's Office was going to make a recommendation to whoever the people are in Washington, main justice or whoever they are called, the people in Washington consider applying any forfeiture money he already paid in, including giving over his house and millions of dollars on top of that, to be applied to any restitution. 10 11 12 13 14 15 16 17 18 19 20 21 22 THE COURT: If it's within the parameters. 27 I think they would regard it as supplement, any amount ordered here of the $3 million forfeiture [sic], which the government is seeking. I don't think they have to take it into account what's been paid heretofore. 28 29 I may be wrong, that's right. 30 31 MR. STAMBOULIDIS: They don't have to, but they should and, I think, in many cases they do. 32 MS. GATZ: Your Honor, as per the agreement the government negotiated it and we will stand by it. We will recommend that the $3 million restitution be taken from the prior forfeiture. 23 24 25 26 33 34 35 36 37 38 39 Mr. Stamboulidis, but I think However, I told Mr. Stamboulidis and the defendant is aware, we cannot require them to do that. We make the recommendation and they consider that. 14-16.) The government asked the court to order 40 (Sentencing Tr. 41 that the $3 million in restitution "be paid in full by the close - 9 1 of the year 2009" (id. at 21), a delay of some 14 months in light 2 of the restoration recommendation to be made by the USAO to the 3 DOJ. 4 for at least three years rather than 14 months, 5 receive 6 codefendants in the interim. 7 opposed that 8 "calling 9 restitution. Pescatore asked that credi t for resti tution request, for (Id. II 10 request 11 December 31, 2009. payments the that so that he could would be (See id. at 21-24.) stating that past at 23.) and ordered that 12 the due date for payment be delayed made by The government Pescatore's victims had been five years asking for their The court granted the government's the restitution be paid on or before (See id. at 23-24.) A judgment was entered sentencing Pescatore in accordance 13 with 14 "$3,000,000.00" in 15 close 16 at 4, 5. 17 incorporate, 18 be made or the amount of loss sustained by each victim. 19 20 21 22 23 24 25 26 27 28 29 30 31 32 the of Plea the The Agreement. year It "restitution 2009." restitution ordered, should Judgment order did be inter paid dated not in alia, full November state, or that by I, the 2008, otherwise the names of the victims to whom restitution was to In January 2009, the government asked the court to correct the judgment pursuant to Fed. R. Crim. P. 36, in order to expressly incorporate the Pre-Sentence Report ("PSR") dated February 21, 2008, at pages 23-46 and 58-60, which identifies the victims and the actual losses incurred by each victim as a result of said schemes. The reason for thi s is, in order for the Asset Forfeiture and Money Laundering Section of the Department of Justice to process the restoration request submitted by this office pursuant to the applicable regulations, the judgment must specifically identify the victims. In that it was the parties' and the Court's intention that the victims identified in the PSR be included in the - 10 judgment, the government respectfully submi ts that the failure to do so was a clerical error which may be corrected at any time. 1 2 3 4 (Letter from AUSA Kathleen Nandan to Judge Platt dated January 28, 5 2009 6 30, 2009, the district court, noting the absence of any objection, 7 granted the government's 8 with 9 "Judgment" ("Government's January 2009 PSR pages or request appended "amended Letter"), On January by endorsement. hereinafter lS at 1-2.) Judgment"; the (The referred appended judgment to PSR as the pages are 10 hereinafter referred to as the "Loss Chart" or "PSR Loss Chart".) 11 12 B. Pescatore's Motion To Compel Restoration or To Vacate and Modify the Restitution Requirement 13 In April 2009, AUSA Nandan notified Pescatore that the DOJ 14 had denied the 15 informed that Nandan could not disclose the reason for the denial 16 because the Department considered the details of its response to 17 the USAO to be privileged. In 18 restoration request. late October and Pescatore was subsequently early November Pescatore, 2009, 19 represented by new counsel citing Santobello v. New York, 404 U.S. 20 257 21 restoration 22 Agreement, 23 declaring 24 public 25 losses of Pescatore's chop shop victims 26 motion") . 27 the Plea Agreement stated that the DOJ would make its decision in (1971), moved in the district court for an order compelling as "specific and, ~ 1. e. policy to performance" alternatively, of the sought ~ of a 17 writ of of coram the Agreement unenforceable as a extent that $3 million In support of restoration, - 11 - the exceeds plea nobis matter of the total ("restoration/restitution Pescatore pointed out that 1 accordance wi th appl icable law, 2 compelled to apply a portion of his forfeited assets to satisfy 3 his 4 The government responded that there had been no breach of the Plea 5 Agreement by the government. 6 fulfilled 7 Hearing Transcript, 8 made a recommendation to the Department of Justice"; 9 recommendation, we made the request")) 10 denied because the 11 and that DOJ's decision to deny restoration "is not reviewable in 12 a court of law" and he argued that it should be restitution obligation because no law forbade its In 13 promise it to do so. The AUSA stated that the USAO had to recommend January 29, defendant 2010 restoration (see ("Motion Tr."), that actually does "[tl he have Motion at 18 ("We "we made the request was assets" (id. ) ; (id.) support his request for modification pointed out that 15 restitution is not punishment, 16 that 17 Judgment 18 reality the total amount of victims' losses was even less than the 19 total 20 Agreement 21 recalculated to reflect the actual losses suffered by his victims. 22 The government, in opposition to Pescatore's request for a 23 24 25 26 27 28 29 listed totaled less indicated be by the Loss and purpose but compensation of victims, PSR Loss than $3 million. the voided in the the restitution losses Pescatore of 14 the order, of Chart. that the Chart attached to of and the He also argued that in He asked that restitution the amount Plea be reduction of his restitution obligation, stated, inter alia, that [tlhe Court's order of mandatory restitution in the amount of $3 million is consistent with the Mandatory Victim [sl Restitution Act and is the minimum amount agreed to in the plea agreement The plea agreement states that restitution shall be "in an amount to be determined by the Court, but no less - 12 than $3 million. 11 The Court properly considered the loss sustained by each victim as a result of the defendant's offenses, and properly incorporated the analysis set forth by the Pre-sentence Report. 1 2 3 4 5 The defendant pled guilty, and was sentenced pursuant to an agreement with the government wherein resti tution of at least $3 million was agreed upon. The defendant was represented by counsel at sentencing who provided argument relative to restitution. The Court properly considered all relevant matters and ordered restitution in the lowest agreed upon amount. 6 7 8 9 10 11 12 13 14 (Letter from Special AUSA Karen R. Hennigan to Judge Platt dated 15 December 16 (emphasis in original) . ) 17 18 30, At the 24 25 26 27 (IiGovernment's December 2009 Letter ll ) , January 29, 2010 at 2-3 hearing on Pescatore's motion, the colloquy with respect to restitution included the following: 19 20 21 22 23 2009 MR. FROCCARO [Pescatore's new attorney]: Your Honor, and this is in no way, shape, or form a reflection on your Honor, but in the parties' plea agreement there was an agreement that he would pay no less than $3 million in restitution. When he was sentenced, there was no probation list attached identifying the victims and the amounts of the losses. 28 29 30 31 You went in accordance with the agreement, judge, with the understanding that there would be in actuality at least $3 million in losses. THE COURT: 32 33 34 MR. FROCCARO: That there would be $3 million in actual losses to the victims. 35 36 What? THE COURT: Was at least that raised at the sentencing time? - 13 - 1 2 3 MR. FROCCARO: You know, Judge, the lawyers didn't raise it. And I cited in my papers to your Honor that it is plain error that the lawyers- 4 THE COURT: Whoa! Did anybody say to the court at the date of sentence that the $3 million figure which was mentioned, I guess I ordered it [] be paid by December 31, that that was in error? 5 6 7 MR. FROCCARO: They didn't. And that was their mistake, Judge. And that constitutes plain error under Second Circuit case law. 8 9 10 11 (MotionTr.4-5.) 12 Froccaro argued that the victims' losses 13 least $1.2 million less than what your Honor ordered" 14 and 15 figure" 16 1.8" 17 loss amount 18 see 19 Honor. " ) ) 20 to challenge the $3 million amount. totaled al though (id. (id. id. 21 saying at 6), at 18); that he said, "Judge, in the PSR, at 21 he I unable "Judge, to state took a calculator out, agreed a at 5); "def ini te this loss is on the PSR for and it added up to 1.8" never ("I was (id. "at to the I added up the (id. $1.8 at 22; million, but your Froccaro acknowledged that Pescatore had not appealed The government, (See id. at 6.) represented at the hearing by AUSAs 22 Hennigan and Gatz, 23 the 24 "there is a 25 of a bargain, got the benefit of an agreement that required him to 26 pay $3 million as of the 31st of December 2009, 27 (id. 28 presentence report 29 at 10), 30 $2.7 million" $3 million at 9); she appeared to take divergent positions on whether amount was proper. Hennigan pointed out that plea agreement wherein the defendant got the benefit but she also stated that, that was calculated (id. in "the incorporated into the sentence" (id. the from which was passed" victims' the numbers losses "to be about at 11); and she said that" [i]n the event that - 14 - 1 there is ever 2 consider that" some overpayment, the government would certainly (id. at 9) . 3 AUSA Gatz took the position that Pescatore should be bound 4 by the Judgment, based on his express agreement to pay restitution 5 of not less than $3 million: 6 7 8 9 10 11 Your Honor, I just want the defendant agreed to pay agreement. He said before $3 million and no less In Honor ordered that. And we It was filed probably almost 12 13 14 So this satellite litigation is improper, frankly, as a whole because the defendant agreed to the $3 million in the plea agreement. 15 to remind the court $3 million, in the the court I will restitution. And are done with the a year ago. that plea pay your J&C. (Motion Tr. 14.) 16 The court ultimately rejected all of Pescatore's 17 arguments. Having 18 "specifics" (id. at 19 contention that his 20 $1.8 million, the 21 substantiated, "not on the 22 which 23 Further noting that, 24 "ha[d]n't even produced a dollar in good faith" 25 court 26 amount immediately 27 id. 28 compliance with the Judgment was already nearly 30 days overdue, 29 the court gave Pescatore a new 30-day period within which to pay 30 the [are] stated at 22 requested that $3 million and an vain "proof" victims' court solely ("Pay 8) In (id. losses found that that Pescatore at 12) totaled that as no more contention to get more time" Pescatore the ordered the than was (id. of the amount he did not dispute, them to not representations you made here today, effort (see id. provide should at at 27 the - 15 - 22). Pescatore at 28), the least pay the undisputed ("Pay what you say you owe. "); 1.8.").) in (id. at And although Judgment; the noting court that denied 1 Pescatore's request for a longer period and stated that after 30 2 days the government should begin to levy on Pescatore's property. 3 (See id. at 20-24.) 4 5 6 MS. HENNIGAN: Your Honor, are you ordering that the defendant pay the $3 million within the next 30 days? THE COURT: 7 3 million bucks. 8 Wasn't my order for $3 million? 9 10 MS. HENNIGAN: 11 MS. GATZ: 12 THE COURT: 13 MS. HENNIGAN: 14 MS. GATZ: 15 THE COURT: 16 17 18 19 20 21 22 25 26 27 28 That is the judgment. Yes. Yes. Enforce it. MS. GATZ: Your Honor, at this point you are not setting aside the J&C, which requires the defendant to pay the $3 million. You are not setting aside the J&C, the judgment and conviction, which requires the defendant to pay the $3 million. You are not setting that aside at this point. THE COURT: No. (Id. at 24-25.) MS. HENNIGAN: [Y]our Honor, for clarification. Your Honor is suggesting that [Pescatore] pay what he does not dispute, but you are holding him accountable for the $3 million. THE COURT: 29 30 Yes. (Motion Tr. 21-22.) 23 24 Yes. Yes, I am. (Id. at 27.) - 16 - This appeal 1 followed. The new 30-day period granted by 2 the district court ended on March 1, 2010. 3 moved 4 That motion was denied on March 5. in this Court for a stay of II. 5 On 6 appeal, to Pescatore restitution obligation. DISCUSSION Pescatore relieve his On March 3, pursues him of contentions (1) that 7 restoration, 8 required because no law prohibited the DOJ from granting him that 9 relief; the restitution obligation, purpose (2) that, 10 compensation, the Judgment 11 restitution is illegal to the extent that that amount 12 the total of his victims 13 and 14 alleges is lower than that shown by the PSR. 15 follow, 16 respect to restitution, 17 purpose is to compensate victims; 18 timely 19 failed to comply with the Judgment, 20 entitled to immediate relief from the order to pay $3 million, as 21 it is not clear that that 22 losses 23 interest to which his victims are entitled because of his delay in 24 making ordering him of was and (b) as his his to restitution pay lS $3 million in (a) exceeds losses as shown by the PSR Loss Chart r exceeds an actual--albeit unspecified--loss total that he we find challenge suffered payment, no meri t the by and in the For the reasons that restoration contention. Wi th Pescatore is of course correct that Judgment his (c) however, and, as Pescatore did not without obtaining a the shop victims, statutory - 17 stay, we conclude that he is not sum will exceed the total of chop its (b) penalties the (a) the statutory that may be 1 applicable on account of that delay. 2 district 3 $3 million, to determine whether he is entitled to any refund. 4 A. court will be required, Further proceedings in the after Pescatore has paid Restoration Civil 5 forfeiture actions such as that commenced by the 6 government against Pescatore in 2003 and settled pursuant to the 7 Plea 8 "subject[s] 9 involved Agreement are governed by 18 U.S.C. inter alia, various offenses 10 including money laundering in violation of 11 removing 12 § 13 pertinent to the present appeal, 14 15 16 17 18 That section to forfeiture to the United States II property that was in, motor 511. 981. § vehicle 18 U.S.C. §§ identification 981(a) (1) (A) § under 18, 1956 and altering or § numbers and Title in (F) (i). violation To the of extent 981 (e) provides that [n]otwithstanding any other provision of the law, the Attorney General is authorized to retain property forfeited pursuant to this section, or to transfer such property on such terms and conditions as he may determine- 19 20 21 (6) as restoration to any victim of offense giving rise to the forfeiture the 981 (e) (6) Attorney 22 18 U.S.C. 23 General 24 Pescatore has not called to our attention, 25 of, 26 Attorney General 27 authori zat ion either lS § (emphases added). Thus, the allowed to choose between restoration and retention. and we are not aware any provision in this or any other section that requires the to choose "to either option over retain - 18 - or to the other. transfer," The with no 1 accompanying statutory constraints, makes the decision between the 2 two choices a matter of discretion. Nor 3 does anything in the Plea in accordance wi th tradi tional 4 interpret 5 law, see generally United States v. Brumer, 6 Cir. 2008), 7 General's exercise 8 Agreement obI igated the USAO to "recommend" 9 Pescatore relief form of restoration, purport to place of that in the any which Agreement, principles of we contract 528 F.3d 157, 158 (2d constraints discretion. on the Paragraph that Attorney 17 of the the DOJ grant and Pescatore has 10 provided no reason to discredit the government's representation to 11 the 12 recommendation. 13 USAO 14 decision 15 Department" 16 this 17 brief on appeal 18 "make 19 Agreement 20 Pescatore brief on appeal at 4, 21 of a promise to grant restoration so long as it is not prohibited. 22 The unambiguous statement that the Department, upon receiving the 23 recommendation, 24 applicable 25 anything the law requires and nothing the law prohibits. district "ha[d] court that authority (Plea only to Agreement at decision 17) law" 12). in made recommend such ~ 17), the promised and and that the rest [ed] Pescatore final with the concedes that its discretion" (Pescatore The promise that the Department would as make plainly relief "exercise accordance is not, would to grant called on the DOJ to ~ Office The Agreement further stated expressly that the whether its the with applicable Pescatore would have its means 9, 10, 12, decision that - 19 the 14, "in it ), law" (Plea (see, ~, the equivalent accordance Department would with do The Plea 1 Agreement contains 2 discretion to grant Pescatore relief that was not required. To 3 the no promise extent that that the DOJ would the government exercise suggests here, its as it 4 argued in the district court, that the decision of the DOJ to deny 5 restoration" is not reviewable in a court of law" 6 we 7 explained the basis for the DOJ's decision, 8 support 9 discretion. need not a address that conclusion issue , that given that that basis (Motion Tr. 18), the government has and the record cannot evinced any abuse of Forfeiture and restitution are separate remedies with 10 different purposes, and the DOJ Manual dealing with forfeitures 11 and with compensation for crime victims indicates that discretion 12 may be exercised to transfer forfeited assets to victims other property 13 is not 14 restitution" 15 States Department of Justice, 16 (2010) ) ) 17 motion, 18 "request 19 assets" 20 16) , 21 wherewithal 22 Tr. 23 assets") .) 24 available to satisfy the "where order of the DOJ Manual were not met. 25 26 to Government brief on appeal (United Asset Forfeiture Policy Manual 164 At the hearing on Pescatore's restoration/restitution the government was denied explained because that the Pescatore's defendant actually restoration does have (Motion Tr. 18; see also Government brief on appeal at Pescatore in no and 16 (Appendix to (Mr. satisfy his Froccaro; "I Accordingly, way suggested restitution have never that he obligations said he lacked the (see Motion doesn't have the cri teria for restoration set out in In sum, we see nothing in the statutory provisions, DOJ's normal operating procedures, or the Plea Agreement that required - 20 1 the Department to use the forfeited assets to relieve Pescatore of 2 his 3 the part of the government to consider his request in good faith. 4 The 5 the government to grant restoration. 6 B. restitution obligations, district court and the record shows properly denied Pescatore I s no failure motion on to compel Restitution 7 The Mandatory Victims 8 largely at 18 U.S.C. 9 sentencing a Title convicted a 11 fraud or deceit," the court "shall order, 12 other 13 restitution 14 §§ 15 the 16 amount 17 without 18 defendant." 19 The court of authorized to the and shall each losses of the any in part, that in against offense committed in addition to . that the the by . any defendant make 18 U . S.C. offense." "In each order of restitution, as to each victim determined economic by in the the court circumstances of full and the 3664 (f) (1) (A) purpose of restitution See,~, 20 their losses. 21 416 22 L. No. 101-647 § 2509, 23 § 24 cir. Hughey v. is to compensate victims United States, for 495 U.S. 411, superseded by statute, Crime Control Act of 1990, Pub. 3663 (a) (3)); 2006) of restitution consideration (1990), law, (c) (1) (A) (ii) order § by victim victim I s Id. "including codified "offense felony property 3663A(a) (1) 18, of 10 penalty ("MVRA"), 3663A and 3664, provides, §§ defendant under" Restitution Act 104 Stat. 4789, United States v. ("Boccagna"); 4863 Boccagna, United States v. - 21 - (codified at 18 U.S.C. 450 F.3d 107, Reifler, 446 115 (2d F.3d 65, 1 137 (2d Cir. 2 419, 423-24 2006) ("Reifler"); (2d Cir. 2004) United States v. Nucci, 364 F.3d ("Nucci"). In determining the appropriate measure of value for property relevant to restitution, a district court must consider that the purpose of restitution is essentially compensatory: to restore a victim, to the extent money can do so, to the position he occupied before sustaining inj ury . See Hughey v. United States, 495 U.S. 411, 416, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (observing that the "meaning of 'restitution' is restoring someone to a position he occupied before a part icular event"); United States v. Coriaty, 300 F.3d 244, 253 (2d Cir.2002) (holding that "statutory focus" of the MVRA is "upon making victims whole"). Because the MVRA mandates that restitution be ordered to crime victims for the "full amount" of losses caused by a defendant's criminal conduct, see 18 U.S.C. § 3664 (f) (1) (A); United States v. Reifler, 446 F.3d at 134 , it can fairly be said that the "primary and overarching" purpose of the MVRA "is to make victims of crime whole, to fully compensate these vict ims for their losses and to restore these victims to their original state of well-being." United States v. Simmonds, 235 F.3d [826, 831 (3d Cir. 2000)]. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Boccagna, 27 court 28 See,~, 29 Nucci, 30 inherent power to order restitution'" but only'" 31 [as is] 32 Gottesman, 33 v. Helmsley, 34 court 35 agreement calling for restitution in excess of that authorized by 36 statute. 450 F. 3d at 115. Section 3663A does not authorize the to order restitution to victims in excess of their losses. Reifler, 364 F.3d 446 F.3d at 122-35; Boccagna, 450 F.3d at 109; at 423-24. And conferred by Congress' has 122 F.3d 150, no 151 as 101 authority under [f] ederal courts have no [s] uch authority through statute," United States v. (2d Cir. 941 F. 2d 71, '" (2d Cir. the - 22 - 1997) 1991) MVRA to (quoting United States (emphasis ours)), adopt or enforce the an 1 The chop shop offense of which Pescatore was convicted was 2 plainly an offense "against property" and was "committed by fraud 3 or deceit" 4 His operations 5 and 6 transferring stolen cars to other individuals for replacement of 7 the vehicle identification numbers with false numbers so that the 8 cars could be sold to unwitting customers. 9 Thus, using the within the meaning of 18 U.S.C. involved, those MVRA parts inter alia, to rebuild 3663A(c) (1) (A) (ii). § receiving stolen car parts damaged motor vehicles, and (See Plea Tr. 19-22.) was applicable and required the district court to 10 order that Pescatore pay restitution to each identified victim of 11 his offense in the full amount of the victim's losses. The court 12 was of 13 losses. not 14 authorized to require resti tution In excess Pescatore does not dispute the applicability of the his 16 illegal because they require him to pay restitution in excess of 17 his 18 contend on this appeal that it was permissible for the court to 19 order restitution in excess of the victims' losses. 20 brief 21 Pescatore in fact reduced the restitution order to $2,559,611.79: victims' on that losses. appeal the MVRAi 15 22 23 24 25 26 27 contention is those The suggests plea Agreement and the Judgment are government, that the for its amended part, does Instead, Judgment - 23 its against [a]lthough Pescatore challenges the $ 3 million figure to which he agreed, the fact is that the judgment was amended to incorporate the port ion of the PSR identifying the victims of Pescatore's crimes and their actual losses, which total $ 2,559,611.79. 28 not 1 2 3 4 5 6 The judgment against him already has been amended to incorporate the victim and loss information from the PSR, making his restitution obligation no more than the actual losses suffered by his victims of his crimes. (Governmentls brief on appeal at 18, 20 (emphasis added).) 7 We disagree with the governmentls characterization of the However, given the posture of the case, we also 8 Judgment. 9 disagree with Pescatorels contention that he should immediately be 10 relieved of the requirement that he pay $3 million in connection 11 with his restitution obligations. 12 1. The Amount Ordered in the Judgment Despi te 13 the government I s contention on appeal that the 14 amended Judgment requires Pescatore to pay no more in restitution 15 than 16 which are quoted ln Part I.B. above--supports that contention. 17 begin 18 Pescatore to pay any amount other than $3,000,000 or any order or 19 opinion stating that the $3 million amount originally ordered has 20 been reduced. 21 court, 22 not ask the court to change the restitution ordered to a sum other 23 than $3 million; 24 by 25 itemized 26 request was that the DOJ required that the judgment specifically 27 identify $2,559,611.79, with, the nothing record Further, in does the not record--pertinent include the government I s any document their the of To ordering letter to the district requesting that the original judgment be attaching parts II corrected, II did it asked only that the court amend the judgment the PSR pages losses--and victims in that it identified stated order - 24 - II to that the process the victims reason the for and the restoration 1 request." (Government's January 2009 Letter at 1.). 2 that letter stated that $3 million was the wrong amount. 3 a lesser total amount immediately apparent from the proffered PSR 4 pages. 5 of 80 victims, 6 submission, the district court might easily have inferred that the 7 Loss 8 Indeed, 9 requested amendment as a "clerical" correction (id. at 2), hardly Nothing in Nor was While the Loss Chart detailed the losses suffered by each Chart supported the term it did not state a total. the Government's that already-ordered January In sum, 12 letter the 13 Judgment as thus augmented might be viewed as reducing Pescatore's 14 restitution obligation from $3 million to $2,559,611.79. Moreover, such PSR a opposition to pages view 16 government's 17 have 18 victims' losses. 19 district court stated, 20 mandatory restitution in the 21 with 22 December 2009 Letter at 2.) 23 $2,559,611.79. 24 number. 25 incorporated in the Judgment, 26 "to the ordered the be alerted was nowhere The reduction court government's inter alia, preargument that that evident the of a neither the Pescatore's November 2009 $3 million reduced to match Mandatory in the the request to amount of his letter to the "[t] he Court's order of amount of $3 million is consistent Victim [s] Restitution Act." (Government's The letter contained no reference to Nor at oral argument was there any mention of that AUSA about undiscussed the liability by nearly half a million dollars. attached an described 11 the to Letter a 15 applicable 2009 $3 million. 10 nor is entire From the government's Hennigan stated $2.7 million" that based on the PSR she calculated the victims' (Motion Tr. - 25 11); but that pages losses statement 1 apparently was not meant to suggest that any less than $3 million 2 was 3 possibility that there might be an "overpayment" 4 when asked Judgment 5 $3 million, 6 Gatz 7 unequivocally 8 restitution 9 amount 10 ordered the In the court Hennigan echoed in that no less," "J&C," and Finally, 12 I.B. above, 13 had amended 14 $3 million. 15 as for $3 million? 16 The answer had that revealed she had (see "agreed the referred (id. id.); to the and payment of at 21). and she AUSA argued pay $3 million" had court Pescatore's to at 9), (id. ordered affirmatively that amount reduced was "improper" 11 the answered Pescatore "and for whether affirmative that the Judgment, "ordered" attempt in that to have that (id. at 14). by the colloquy described in Part the district court itself plainly did not believe it the judgment (See,~, to reduce id. the at 21 restitution amount below (The Court: "Wasn't my order That is the judgment.") . ) record thus in no way supports because 17 cont ent ion that, 18 PSR Loss Chart listing Pescatore's victims and their losses, 19 "clerical" 20 $2,559,61l.79. 21 reduced judgment Pescatore's The Judgment orders was amended new of $3 million. step the the government's restitution Pescatore to append 23 by the pertinent 24 victims 25 $2,559,611.79" (Government 26 omi t ted)) that of PSR pages crimes means in "[a] 11 f which those the Pescatore brief losses - 26 on total as revealed sustained by the involved appeal some to to pay restitution losses was that obligation The government's present acknowledgement that, 22 the at 17 $440,000 add up to (footnote less than 1 the Judgment orders Pescatore to pay. 2 discrepancy is even greater, arguing that the actual losses listed 3 In 4 $3 million. (Pescatore 5 original) . ) We 6 actual, the second alleged--in reverse order. 7 8 the PSR Loss Chart total "at brief address least on these Pescatore contends that the $1 million appeal two at less" than (emphasis 8 discrepancies--the in first Pescatore's Challenge to the Accuracy of the PSR's $2,559,611.79 Loss Total 2. As 9 the indicated of each 18 U.S.C. victim's 3664(f) (1) (A) § loss be required 10 that 11 district court and included in the restitution order. 12 the original judgment entered in November 2008 did not comply with 13 this requirement, the amended Judgment appended the PSR Loss Chart 14 that identified 80 chop shop victims in whose losses Pescatore was 15 involved; 16 loss. 17 those items, 18 the actual total amount of his victims' losses is less. 19 amount above, determined by the Although those pages showed the precise amount of each victim's Although the Loss Chart did not state an overall total of the total is $2,559,611.79. Pescatore contends that Pescatore had received the February 21, 2008 PSR well in 20 advance of his sentencing hearing on October 24, 2008. 21 does not indicate that in connection with sentencing he made any 22 objection 23 losses, 24 fact stated elsewhere in the PSR. 25 the government asked the court to amend the original judgment by 26 appending specific pages of the PSR, whatever or to the to total the PSR's specification of The record victims or loss figure--$2,559,611.79--that was in - 27 - Further, in January 2009, when Pescatore made no objection: 1 He did not suggest 2 those pages was not a victim in whose loss he was involved; he did 3 not 4 incorrect; 5 totaled less than $2,559,611.79. 6 was entered, Pescatore did not appeal. suggest that he that any did than loss not Pescatore's 7 any individual suggest contention 8 less $2,559,611.79 9 restoration/restitution that not motion, his advanced some 12 Pescatore's 13 $2,559,611. 79, 14 inaccurate because 15 reviewable 16 United 17 United States v. Coriaty, 300 F.3d 244, 252 18 States v. Kinlock, only Under v. Given the lack showing contention plain error. the 326 he total his after of made the any timely the PSR Loss Chart's listing of victims, Catoggio, was listed losses months losses that the the appended PSR Loss Chart for pages amounts until nine objection to the correctness of Pescatore's loss victims' 11 individual those And when the amended Judgment that filed. on the amended States was was shown 10 19 Judgment amount or entity identified in See Fed. F.3d 323, 326 total Judgment is R. that is inaccurate is Crim. (2d P. 52 (b) ; Cir. 2003); (2d Cir. 2002); United 174 F.3d 297, 299 (2d Cir. 1999) standard set by the Supreme Court for the 20 application of Rule 52(b), before an appellate court is allowed to 21 correct an error that was not timely raised in the district court 22 four conditions must be met. 23 that is 'plain,' and (3) 24 "[i]f all three" of those "conditions are met, 25 may then exercise its discretion to notice a forfeited error, but 26 only if (4 ) the "[T]here must be (1) 'error,' (2) that 'affect[s] substantial rights'''; and error 'seriously - 28 an appellate court affect[s] the fairness, 1 integrity, or 2 Johnson United 3 United States v. 4 quotation marks omitted) v. public reputation States, of U.S. 507 U.S. Olano, 520 725, judicial 461, 732 (1997) 467 (1993)) Pescatore's contention that the actual 5 proceedings.'" {quoting (other internal losses suffered by 6 his chop shop victims are less than the $2,559,611.79 detailed in 7 the 8 meet even the 9 His PSR Loss Chart first that was made part of the Judgment does not threshold condition of the plain-error test. restoration/restitution motion asserted that "the aggregate 10 amount of loss or restitution to the victims identified in the PSR 11 is more 12 the 13 Michael 14 original)), but it proffered no facts 15 The did not 16 part icular 17 specific 18 amount was revealed by "[s] imple ari thmet ic" 19 the 20 contended the PSR was in error. 21 evidence--proffered at 22 court's request "proof" 23 Pescatore's 24 determine that "the loss amount in the PSR. 25 (id. than Court to pay" vict im; lower did 22), not for of Santobello challenge and it did PSR-itemized loss. motion than Mr. {Memorandum Pescatore's motion at $1 million proffer attorney, Froccaro oral ln Support Motions at of Defendant (emphasis 7 in to support that assertion. the PSR' s not challenge it precise identification the claimed amount (id. of any of any amount that that lower at 7 n. 5). Yet by which Pescatore Nor was a precise figure--or any argument of (Motion Tr. stated also Law Rather, a Pescatore was ordered by that said, - 29 he "I the motion, despite the 12). Although Froccaro, used his never calculator to . added up to 1.8" agreed to the $1.8 1 million," (id. at 2 "definite figure" 21), and said he could not give the court a (id. at 6) . 3 The district court thus ruled--properly--that it could not 4 uphold Pescatore's challenge to the accuracy of the PSR based on 5 his 6 ("not on the representations you made here today")) vague 7 and conclusory Our own 8 victims' 9 total assertions mathematical (see, review Motion Tr. ~, conf irms that the 22 relevant losses listed in the Loss Chart appended to the Judgment $2,559,611.79. 12 that claim improperly disregards the fact that in many instances 13 his offense with respect to a particular vehicle caused losses to 14 more than one vict im. 15 evidence to show that the PSR Loss Chart is inaccurate, we cannot 16 conclude that 17 listing 18 "plain" error. 20 3. proffered appeal district court as to the nature of his claim of arithmetic error, losses than was on 11 of enlightenment brief provides the more Pescatore's 10 19 somewhat Although to the Given Pescatore's failure to proffer any amended Judgment's totaling incorporation of the PSR' s $2,559,611.79 is error, much less Pescatore's Challenge to the $3 Million Requirement Pescatore's contention that the Judgment is in error to 21 the extent that it orders him to pay more than $2,559,611.79 is 22 also subj ect 23 In the original judgment entered in November 2008, 24 Pescatore 25 include or incorporate any identification of Pescatore's victims pay to plain-error review and is far more problematic. restitution in the - 30 - amount of $3 the order that million did not 1 or determination of 2 order that Pescatore pay restitution did not comply with the MVRA. 3 Pescatore did not appeal to complain of that defect. More 4 importantly, 5 court to amend the 6 Chart itemizing 7 would apparently 8 § 9 amend 3664 (f) (1) (A), the each victim's loss. Hence that judgment's when the government asked the district original judgment by appending Pescatore's bring victims the and Judgment their into the PSR Loss losses, which compl iance with Pescatore did not ask the district court to also original $3 million figure so that the restitution 10 ordered would not exceed the $2,559,611.79 in losses listed in the 11 Loss Chart. 12 2009, 13 him 14 government had proven in losses. 15 2009 16 notified that 17 obligation, 18 Accordingly, Pescatore's present challenge to the Judgment's order 19 that he pay $3 million in restitution cannot be sustained unless 20 he meets the plain-error test, 21 We conclude that he meets the first three elements of that test, 22 but not the fourth. 23 Nor, after the amended Judgment was filed in January did Pescatore appeal to complain that the Judgment required to to pay more in complain of restitution the Judgment, nine months the the $2,559,611.79 Rather, he waited until October the DOJ would not and than ~, six months after being relieve him of his restitution after the Judgment was described in Part II. B. 2. filed. above. Given the government's concession on this appeal that it 24 proved losses totaling only $2,559,611.79, 25 retention 26 resti tution was of the order error. And that in the amended Judgment's Pescatore light - 31 of pay the $3 million authorities in cited 1 above, that error is plain. Further, 2 at 3 $2,559,611.79 4 substantial rights, 5 than 6 conditions that, 7 to notice a forfeited error . 8 affect [s] 9 judicial there can be no doubt that, least at the time the Judgment was amended and itemized only the in MVRA losses, the affected Pescatore's for it required him to pay some $440,000 more authori zed. the error if met, But these are just permit us to "exercise fairness, . only if integrity, proceedings." Johnson, [] or 520 threshold [our] discretion the error seriously publ ic reputation 467 at U.S. of (internal 10 quotation marks omitted) 11 if 12 $2,559,611.79, 13 that his restitution obligation was satisfiedi or if he had timely 14 paid 15 entitled him to a refund. 16 In fact, Pescatore the had we (emphasis added). the proceeded would, ordered in the $3 million, however, to In the present case, timely make interest we would Pescatore, of payment justice, conclude that of recognize justice without obtaining a stay of 17 the Judgment, 18 and renewed his motion on December 31, 19 Judgment's requirement that he pay on or before December 31, 2009i 20 but 21 no payment at or before that first deadline. simply flouted it. He moved on December 22, 2009- the court did not grant a stay. 22 2009--for a stay of the Pescatore nonetheless made At the January 29, 2010 argument on Pescatore's request to 23 reduce the restitution obligation, 24 noting that Pescatore 25 court" 26 23i (Motion Tr. see, ~, id. the court- -despite repeatedly "ha[d]n't complied with the order of this 24), was nearly "30 days overdue" at 24, 25), and - 32 "ha[d]n't (id. at 20, even produced a 1 dollar in good faith" 2 period in which to make a restitutionary payment 3 That 4 record suggests that Pescatore made any payment by that date. (id. at 28) --granted Pescatore a new 30-day 30-day period ended on March 1, After his 5 March 1, 2010 2010, deadline 6 asked this Court to grant him a stay. 7 denied on March 8 (see id. at 20). and nothing in the had passed, Pescatore That motion was promptly made any payment yet. No party has informed us that Pescatore has 5. 9 We note also that following this Court's denial of a stay, 10 Pescatore made no effort whatever to expedite this appeal; instead 11 he 12 dismissals 13 As a consequence of the lack of any urgency on Pescatore's part, 14 this 15 nearly 16 restitution order, and more than 10 months after the expiration of 17 the new 30 -day period granted him at the January 2010 hearing- 18 when he was already in noncompliance--to make payment in full. 19 missed several deadlines, two of which (followed eventually by reinstatements) appeal a filing was year Al though not after the fact denial that of his request the government in of the appeal. submitted for decision until the resulted January 2011, to had modify the shown losses 20 totaling only $2,559,611.79 means 21 restitution 22 fundamental law that that error did not give Pescatore the right 23 simply to ignore the court's order. 24 25 26 27 28 29 In the amount of that the Judgment's order for $3 million was In error, it It is a basic proposition that all orders and judgments of courts must be complied with promptly. If a person to whom a court directs an order believes that order is incorrect the remedy is to appeal, but, absent a stay, he must comply promptly with the order pending appeal. - 33 - is 1 Maness v. Meyers, 2 3 4 5 6 7 419 U.S. 449, 458 (1975) (emphasis added). [Aln order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the Act under which the order is issued. 8 United States v. United Mine Workers of America, 9 (1947) (footnote omitted)); (1922) Howat v. 11 jurisdiction "is reversed for error by orderly review, 12 itself or by a higher court, 13 to be respected"); 14 (2d 15 obeyed, even 16 aside. a 293 258 U.S. (internal quotation marks omitted)) . 11 is assuming of court of competent axiomatic its either by its orders based on its decision are Charles Plohn & Co., SEC v. (" It decision" 258, Kansas, 181,190 1970) [thel ~, 10 Cir. ("until see, 330 U.S. that 433 F.2d 376, court until invalidity, a it order is 379 must properly be set 17 In 18 principles and 19 cannot compelled 20 restitution, we cannot conclude that he has met the final prong of 21 the plain-error test so as to require that he be given immediate 22 relief 23 failure 24 as 25 (penalties) , 3612 26 enforcement) , 3613A 27 release terms; contempt of court), 3614 from Pescatore's disobey the the to of election Judgment, pay $3 million potential) The accrual of to comply with a other 28 29 be light more figure, al though than for disregard we agree $2,559,611.79 a defendant's (penalties (inter See, and alia, consequences most interest penalties as modification 3613 of he pure unexcused 18 U.S.C. interest); (as well §§ 3572 (civil supervised (resentencing). relevant - 34 - ~, these that restitution order has monetary consequences. and to with to this respect appeal to are the restitution 1 payments not made when due. 2 $2,500 is not made as ordered by the court, 3 defendant 4 addition, 5 more 6 delinquent for more than 90 days." 7 The penalties for delinquency and default are substantial: than shall pay If a restitution payment of more than interest," "[i] n general [, t] he 18 U.S.C. 3612 (f) (1) . § In a "payment of restitution is delinquent if a payment is 30 days late," and is "in default 18 U. S . C . if §§ a payment 3572 (h) is and (i) . If a fine or restitution becomes delinquent, the defendant shall pay, as a penalty, an amount equal to 10 percent of the principal amount that is delinquent. If a fine or restitution becomes in defaul t, the defendant shall pay, as a penal ty, an additional amount equal to 15 percent of the principal amount that is in default. 8 9 10 11 12 13 14 3612(g) (emphases added) see also id. 3612(i) 15 18 U.S.C. 16 ("Payments relating to fines and restitution shall be applied In 17 the 18 interest i 19 and 20 rather become assets of 21 Administrative Office of 22 Judiciary 23 (" Interest assessed on restitution is paid to the victim. 24 penalty assessed on restitution is deposited into Miscellaneous 25 Fines, Penalties, and Forfeitures Fund . 26 § following and order: (4) delinquency (1) to principali to penal ties. ,,) . are Policy Assuming not paid vol. 13, that to the the § i (2) to costsi (3) to These penal ties for default the defendant s I United States United States has victims, but Treasury. Courts, 810.50.10(a) (2) Pescatore § (Aug. See Guide 3, to 2010 ) Any . ") . made no restitutionary 27 payments during the pendency of this appeal, 28 obligations of interest on the $2,559,611.79, as well as penalties 29 that are sizeable. Thus, it is not - 35 - he has accumulated clear that $3 million will 1 exceed the sum of his victims's losses, the statutory interest to 2 which 3 payment, 4 account 5 agree 6 $2,559,611.79 as pure restitution, we cannot conclude that he has 7 met 8 requires that he be given immediate relief from the requirement 9 that he pay $3 million. the victims and of that that the the are statutory penal ties delay. Pescatore final entitled because prong In all cannot of the the be of that his delay may be appl icable on circumstances, compelled plain-error in making to test although we pay in more any way than that 10 We note that Pescatore acknowledged in his plea allocution 11 that his chop shop operation began in 1987 and ended in mid-2004. 12 Thus, 13 for the better part of a decade, or longer. 14 light 15 including: his victims have been without compensation for their losses of the choices made by Pescatore throughout pay no less this 16 17 ¢ his initial agreement $3 million in restitution, 18 19 20 21 22 ¢ his failure to timely object to or appeal from the amended Judgment to challenge its retention of the $3 million restitution obligation despite the amendment identifying victims whose losses totaled only $2,559,611.79, 23 24 25 26 ¢ his failure to challenge the accuracy of the PSR Loss Chart before sentencing, at sentencing, or upon the government's request that the Loss Chart be made part of the Judgment, 27 28 29 ¢ his unsubstantiated challenges to the accuracy of the Loss Chart, made in conclusory fashion, more than a year late, and without even an offer of proof, 30 31 32 ¢ his tortoise-like pace in pursuing relief, both in the district court and on this appeal, to achieve delays that he had requested and been denied, - 36 to We conclude that, in than case, 1 2 ¢ his decision, having repeatedly been denied a stay, simply to disobey the Judgment, and 3 4 ¢ the fact that his failure to make any payments by the court-imposed deadlines will require him to pay interest on, and expose him to the possibility of restitution-related penalties of 10 and 15 percent of, any unpaid portion of $2,559,611.79, 5 6 7 8 we conclude 9 public that the interests reputation of judicial of justice, proceedings fairness, are best and the served if 10 Pescatore remains required to make the ordered $3 million payment, 11 subject to his right to a refund of any moneys remaining after his 12 victims 13 whatever 14 satisfied. have been paid applicable restitution, with 15 and after penalties restitution-related interest, have been CONCLUSION 16 We have considered all of Pescatore's arguments on this 17 appeal and have found in them no basis for reversal. 18 the district court will determine, 19 which payments toward Pescatore's $3 million obligation are made 20 or 21 properties, 22 portion of the principal sum of $2,559,611.79 during Pescatore's 23 periods 24 extent 25 such unpaid principal are otherwise of to (b) the satisfied by amounts of interest noncompl iance which inter alia, the wi th statutory government the dates on seizure of deadl ines, (c) restitution-related penalties 37 his accruing on any unpaid court - ordered are applicable, - (a) On remand, and (d) if the total the on of 1 restitution, 2 exhaust the $3 million, the amount to be refunded to Pescatore. The 3 interest, order of and restitution-related penalties does not the district denying an order compelling restoration, 5 $3 mill ion rest i tut ion order is af firmed. Pescatore is to make 6 payment of the 7 mandate herein; 8 shall 9 remanded to 10 11 not within interest cease to (b) (a) 4 $3 million and court 60 days of issuance of the on any unpaid portion of $2,559,61l.79 accrue the district denying immediate relief from the during court that The for proceedings not with this opinion. The mandate shall issue forthwith. - period. 38 mat ter is inconsistent
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