United States v. Maynard and Ludwig, No. 12-5106 (2d Cir. 2014)
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Defendants plead guilty to committing a series of bank robberies. On appeal, defendants challenged the district court's order of restitution under the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. 3663-64. The court held that expenses other than those enumerated in section 3663A(b) were not compensable under the MVRA. In this case, the restitution order properly included the amount of money stolen during the bank robberies. However, the only portion of Merchant Bank's expenses subject to restitution was the amount paid to the bank's regular staff while the bank was closed as a crime scene. Accordingly, the court vacated the restitution component of the judgments and remanded to determine the amount of restitution.
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12-5106 (L) United States v. Maynard and Ludwig 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: November 21, 2013 Decided: February 24, 2014) Docket Nos. 12-5106 (Lead), 12-5124 (Con) - - - - - - - - - - - - - - - - - - - -x UNITED STATES OF AMERICA, Appellee, - v.JOHN W. MAYNARD and JILL M. LUDWIG, Defendants-Appellants. - - - - - - - - - - - - - - - - - - - -x Before: KEARSE, JACOBS, and PARKER, Circuit Judges. John Maynard and Jill Ludwig appeal from judgments of 30 the United States District Court for the District of Vermont 31 (Reiss, C.J.) requiring them to pay restitution after a 32 series of bank robberies. 33 a bank s expenses other than the money taken in the robbery. 34 We vacate the restitution component of the judgments and 35 remand to redetermine restitution. 36 Maynard and Ludwig contest paying 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 STEVEN L. BARTH, on behalf of Michael L. Desautels, Federal Public Defender for the District of Vermont, Burlington, Vermont, for Appellant John W. Maynard. NANCY J. WAPLES, Hoff Curtis, Burlington, Vermont, for Appellant Jill M. Ludwig. WILLIAM B. DARROW (Paul J. Van de Graaf, on the brief), on behalf of Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, Vermont, for Appellee. DENNIS JACOBS, Circuit Judge: John Maynard and Jill Ludwig appeal the restitution 21 component of judgments entered following their guilty pleas 22 on a series of bank robberies. 23 Victims Restitution Act of 1996 ( MVRA ), Pub. L. No. 104- 24 132, 110 Stat. 1214 (codified at 18 U.S.C. §§ 3663-64), the 25 United States District Court for the District of Vermont 26 (Reiss, C.J.) imposed restitution in an amount consisting of 27 the money taken in the robberies and additional expenses 28 incurred by one of the victim banks. 29 object only to restitution for these additional expenses as 30 falling outside the provisions of the MVRA. 31 following reasons, we vacate the restitution component of 32 the judgments and remand to the district court. 2 Pursuant to the Mandatory Maynard and Ludwig For the 1 2 BACKGROUND Maynard and Ludwig robbed five banks between September 3 and November 2011.1 4 bank alone, passed a note to the teller claiming possession 5 of a gun, and demanded money. 6 few minutes. 7 Each time, one of the two entered the Each robbery lasted only a Nobody was harmed. The couple was arrested hours after the last robbery on 8 November 2, 2011. They were indicted on three bank-robbery 9 counts and one count of conspiracy. Ludwig pled guilty on 10 August 16, 2012 to one charge of bank robbery in violation 11 of 18 U.S.C. § 2113(a). 12 to conspiracy in violation of 18 U.S.C. § 371. 13 sentenced in December 2012. 14 The next month, Maynard pled guilty The two were In the sentencing phase, the Government sought 15 restitution under the MVRA, pursuant to 18 U.S.C. § 3663A. 16 More than half of the proposed restitution ($12,966) was to 17 repay the money taken during the robberies, and is 18 uncontested on appeal. 19 paid by Merchants Bank, of which the following are the The rest included certain expenses 1 The date and place of the robberies are: 1) Merchants Bank, Rutland, Vt. on Sept. 7, 2011; 2) Lake Sunapee Bank, West Rutland, Vt. on Oct. 7, 2011; 3) TD Bank, Granville, N.Y. on Oct. 25, 2011; 4) TD Bank, Granville, N.Y. on Oct. 29, 2011; and 5) Citizens Bank, Poultney, Vt. on Nov. 2, 2011. 3 1 subject of this appeal: 1) paid time-off for the bank s 2 regular staff, and the pay of replacement staff ($7,991.68); 3 2) mileage expenses for the replacement staff ($213.34); 4 the cost of wanted posters ($106.66); and 4) the cost of a 5 temporary security guard at the bank after the robbery 6 ($574.52). 7 3) At separate sentencing hearings, the Merchants Bank 8 teller testified about the anxiety and emotional harm she 9 suffered as a result of being held up. At Maynard s hearing 10 only, the bank s security officer, Robert O Neill, testified 11 that the regular staff was sent home the day of the robbery 12 because the bank was a crime scene, and that the bank did 13 not reopen until it was released by law enforcement at the 14 end of the day. 15 operated with temporary replacements while the regular staff 16 was given paid leave to handle any trauma associated with 17 the robbery. 18 practice, and that taking care of employees in that way 19 served a business purpose. 20 On the two days following, the bank He explained that this was the bank s usual Maynard and Ludwig contested the inclusion of the 21 bank s expenses in the restitution order. 22 however, that the expenses claimed could be compensated 4 The court found, 1 because they were directly and proximately caused by the 2 robbery. 3 restitution in the amount of $21,852.20 jointly and 4 severally. 5 Merchants Bank listed above. The couple was sentenced, inter alia, to pay This amount included the expenses incurred by 6 7 DISCUSSION 8 While the MVRA serves the broad policy purpose of 9 assisting the victims of crime, it also enumerates the 10 specific losses compensable in a mandatory restitution 11 order. 12 expenses are not subject to restitution because they are not 13 among these enumerated harms. Maynard and Ludwig argue that Merchants Bank s 14 15 I 16 Prior to 1982, federal courts were not permitted to 17 order restitution outside the probation context. 18 States v. Amato, 540 F.3d 153, 159 (2d Cir. 2008). 19 Victim and Witness Protection Act of 1982 ( VWPA ), Pub. L. 20 No. 97-291, 96 Stat. 1248 (currently codified, as amended by 21 the MVRA, at 18 U.S.C. § 3663), afforded courts discretion 22 to impose restitution for specified kinds of harm. 23 Amato, 540 F.3d at 159. 5 See United The See 1 The victims rights movement later inspired a review of 2 the judiciary s use of restitution. 3 passed the MVRA to help victims and to hold offenders 4 accountable for the losses they inflict.2 5 104-179, at 17-18 (1995). 6 In 1996, Congress See S. Rep. No. The MVRA made restitution mandatory for a broad swath 7 of offenses.3 8 purpose of the MVRA is to make victims of crime whole, to 9 fully compensate these victims for their losses and to 10 restore these victims to their original state of well- 11 being. 12 Cir. 2006) (quoting United States v. Simmonds, 235 F.3d 826, 13 831 (3d Cir. 2000)) (internal quotation marks omitted). See 18 U.S.C. §§ 3663A(a)(1), (c). The United States v. Boccagna, 450 F.3d 107, 115 (2d 14 When the MVRA controls, a court shall require the 15 defendant to pay restitution for the harms listed in the 16 statute. 18 U.S.C. § 3663A(b).4 No other expense 2 While the MVRA started out as a separate bill, it was later placed within the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. 3 The parties agree that the MVRA applies here because a bank robbery is a crime of violence under 18 U.S.C. § 3663A(c). 4 The full text of 18 U.S.C. § 3663A(b) states: The order of restitution shall require that such defendant 6 1 (1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense (A) return the property to the owner of the property or someone designated by the owner; or (B) if return of the property under subparagraph (A) is impossible, impracticable, or inadequate, pay an amount equal to (i) the greater of (I) the value of the property on the date of the damage, loss, or destruction; or (II) the value of the property on the date of sentencing, less (ii) the value (as of the date the property is returned) of any part of the property that is returned; (2) in the case of an offense resulting in bodily injury to a victim (A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment; (B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and (C) reimburse the victim for income lost by such victim as a result of such offense; (3) in the case of an offense resulting in bodily injury that results in the death of the victim, pay an amount equal to the cost of necessary funeral and related services; and 7 1 reimbursement is made mandatory. 2 3663A giving the district court discretion to order any 3 other restitution. 4 There is no provision in § The broad scope of the MVRA is subject to some 5 limitations. Only a victim (or the victim s estate) is 6 entitled to restitution. 7 term victim is defined as a person directly and 8 proximately harmed as a result of the commission of an 9 offense for which restitution may be ordered. See 18 U.S.C. § 3663A(a)(1). The 18 U.S.C. § 10 3663A(a)(2). 11 calculation of reimbursable loss. 12 Gushlak, 728 F.3d 184, 194-95 (2d Cir. 2013). 13 victim s actual loss is compensable, not losses that are 14 hypothetical or speculative. 15 This causation principle also governs the See United States v. And only a Id. at 195. The procedures by which the sentencing court imposes a 16 restitution order are set forth in 18 U.S.C. § 3664. 17 United States v. Marino, 654 F.3d 310, 317 (2d Cir. 2011); 18 see also 18 U.S.C. § 3663A(d). 19 section prevents restitution from being conditioned or Among other things, this (4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. 8 1 limited by a defendant s ability to pay: In each order of 2 restitution, the court shall order restitution to each 3 victim in the full amount of each victim s losses as 4 determined by the court and without consideration of the 5 economic circumstances of the defendant. 6 3664(f)(1)(A) (emphasis added). 18 U.S.C. § 7 8 9 II The decisive issue on this appeal is whether expenses 10 other than those enumerated in § 3663A(b) are compensable 11 under the MVRA. 12 We conclude they are not. We begin our interpretation of a federal statute with 13 the statutory text. 14 of India to the United Nations, 618 F.3d 172, 182 (2d Cir. 15 2010). 16 unlisted harms are not compensable in restitution. 17 courts have no inherent authority to order restitution, 18 Congress must provide the authority. 19 Casamento, 887 F.2d 1141, 1177 (2d Cir. 1989). 20 so through the MVRA, but chose to include only the four 21 categories of harms listed in § 3663A(b). 22 intended to include all harms directly and proximately City of New York v. Permanent Mission It is apparent from the text of § 3663A that 9 Because See United States v. Congress did If Congress 1 caused by a defendant s offense, it could have done so with 2 wording more simple and categorical. 3 statutory construction inclusio unius est exclusio 4 alterius --that to express or include one thing implies the 5 exclusion of the other --it follows that Congress intended 6 to limit the restitutable harms covered by the MVRA. 7 States v. Tappin, 205 F.3d 536, 540 (2d Cir. 2000). 8 9 Applying the rule of United The Government s reliance on the statutory mandate to impose restitution in the full amount of each victim s 10 losses, 18 U.S.C. § 3664(f)(1)(A), is misplaced. 11 provides that § 3664 is procedural rather than substantive. 12 See 18 U.S.C. § 3663A(d); see also United States v. Cliatt, 13 338 F.3d 1089, 1093 (9th Cir. 2003) (stating § 3664 cannot 14 trump substantive restitution provisions because it is only 15 a procedural mechanism). 16 clause is that the full amount of loss be determined 17 without consideration of the economic circumstances of the 18 defendant. 19 emphasizes only that courts may not decrease restitution to 20 account for the defendant s ability to pay. 21 context, this clause cannot serve as the Government s 22 springboard for restitution more broad than the text 23 specifies. The MVRA Furthermore, the context of this 18 U.S.C. § 3664(f)(1)(A). 10 The provision Taken thus in 1 The Government seems to suggest that any and all losses 2 are compensable to the extent that they were directly and 3 proximately caused by a defendant s offense. 4 requirements of direct and proximate causation, see, e.g., 5 Marino, 654 F.3d at 317, are necessary conditions for 6 restitution under the MVRA -not sufficient ones. 7 statute makes clear, the harm must also come within one of 8 the categories enumerated in § 3663A(b). 9 However, the As the The Government s cases do not support a broader 10 application of the MVRA. 11 3663A(b)(1), which allows reimbursement for property loss. 12 See, e.g., United States v. Qurashi, 634 F.3d 699, 702-05 13 (2d Cir. 2011) (allowing prejudgment interest for funds paid 14 out of life insurance funds to ensure the victim received 15 the full amount of their losses); United States v. Donaby, 16 349 F.3d 1046, 1051-55 (7th Cir. 2003) (damage to police car 17 in chase after bank robbery). Many are mere applications of § 18 19 20 III We now consider whether the specific costs incurred by 21 Merchants Bank fall within the enumerated harms of § 22 3663A(b). 23 11 1 2 A In the wake of the robbery, the bank was closed as a 3 crime scene for the afternoon, and the bank s regular staff 4 stayed home the following two days to get over any stress 5 caused by the incident. 6 and Ludwig to pay restitution for the full amount of the 7 wages paid to the regular staff over this period of time. 8 However, given the goal of restoring victims to their 9 original state of well-being, Boccagna, 450 F.3d at 115 10 (internal quotation marks omitted), we need to take into 11 account that the bank would have paid the regular staff in 12 any event. 13 recovered compensation for the full amount of the regular 14 staff and replacement staff wages. 15 The district court ordered Maynard Thus, the bank would enjoy a windfall if it A portion of the regular staff wages is nevertheless 16 compensable because the bank derived no benefit from the 17 wages paid during the bank s closure on the day of the 18 robbery. 19 temporarily for crime scene investigation, the associated 20 costs may well fall under the MVRA. 21 States v. Wilfong, 551 F.3d 1182, 1183-87 (10th Cir. 2008) 22 (lost work time due to evacuation after bomb threat); United When a victim s facility is required to close 12 See, e.g., United 1 States v. Quillen, 335 F.3d 219, 222-23 (3d Cir. 2003) 2 (closing mailroom due to contamination from anthrax); United 3 States v. De La Fuente, 353 F.3d 766, 768, 771-73 (9th Cir. 4 2003) (lost work hours for postal service employees during 5 decontamination resulting from receipt of a threatening 6 letter said to contain anthrax). 7 paid its regular staff for the remainder of that day, 8 restitution is proper. To the extent the bank 9 10 11 B The wages for the temporary staff do not fall within 12 the enumerated harms of § 3663A(b). 13 wages did not compensate for losses such as destruction of 14 property or funeral expenses, and were not necessary to the 15 prosecution or investigation of the offense. 16 § 3663A(b)(1), (3)-(4). 17 attributable to the psychological recovery of the regular 18 staff present during the robbery; however, the MVRA 19 unambiguously limits recovery for psychological harm to 20 instances of bodily injury. 21 also United States v. Reichow, 416 F.3d 802, 805-06 (8th 22 Cir. 2005). The temporary staff See 18 U.S.C. The expense is arguably 18 U.S.C. § 3663A(b)(2); see The Government characterizes the wages as a 13 1 business expense absorbed by the bank, but the MVRA does not 2 include a business expense category. 3 staff wages fall outside the enumerated harms of § 3663A(b), 4 they may not be included in a restitution order.5 5 Because the temporary The Government adduces cases in which loss of income 6 has been compensated after a robbery. 7 issued in United States v. Blagojevic, 331 F. Appx. 791, 794 8 (2d Cir. 2009), allowed restitution for lost income when the 9 owner of a jewelry store closed the store during peak season The summary order 10 due to trauma suffered from a robbery. 11 decided on the plain error standard of review; the only 12 appellate issue was proximate causation, id. at 793-94; and 13 the order did not consider the types of harms compensable 14 under § 3663A. 15 why summary orders lack precedential force.) 16 also cites United States v. Tran, in which a teller who was 17 unable to work after a bank robbery was awarded restitution 18 for lost income. 19 overruled on other grounds by United States v. Thomas, 274 20 F.3d 655 (2d Cir. 2001) (in banc). But Blagojevic was (On the whole, the case is a good example of The Government 234 F.3d 798, 804 (2d Cir. 2000), 5 However, the defendant Because we hold that the award for temporary staff wages was improper, it follows that the mileage expense for the temporary staff is likewise not allowable. 14 1 challenged only the payment plan and not the imposition of 2 restitution. Id. at 812-13. 3 4 C 5 The only category of allowable expense in which the 6 wanted posters and the temporary security guard might be 7 located is § 3663A(b)(4), which requires defendants to 8 reimburse the victim for . . . necessary . . . expenses 9 incurred during participation in the investigation or 10 prosecution of the offense or attendance at proceedings 11 related to the offense. 12 added). 13 18 U.S.C. § 3663A(b)(4) (emphasis We have not adopted a test for necessity in this 14 context. 15 begins with the plain meaning of a law s text and, absent 16 ambiguity, will generally end there. 17 607 F.3d 297, 301 (2d Cir. 2010) (quoting Bustamante v. 18 Napolitano, 582 F.3d 403, 406 (2d Cir. 2009)) (internal 19 quotation mark omitted). 20 we review the statutory text, considering the ordinary or 21 natural meaning of the words chosen by Congress, as well as 22 the placement and purpose of those words in the statutory Our reading of a statutory text necessarily Dobrova v. Holder, In conducting such an analysis, 15 1 scheme. 2 652, 657 (2d Cir. 2009)). 3 necessary tends to be circular: 4 indispensable. 5 (2d ed. 1989) (defining necessary as indispensable, 6 requisite, essential, needful; that cannot be done 7 without ). 8 victim expenses that are recoverable as restitution under 18 9 U.S.C. § 3663A(b)(4) are expenses the victim was required to Id. (quoting United States v. Aguilar, 585 F.3d The dictionary definition of essential or See 10 The Oxford English Dictionary 275-76 But the plain meaning is not obscure. The 10 incur to advance the investigation or prosecution of the 11 offense. 12 Generally, this Circuit takes a broad view of what 13 expenses are necessary. 14 F.3d 1093, 1101 (D.C. Cir. 2011) (citing Amato, 540 F.3d 15 153) ( In reaching our conclusion, we recognize that several 16 other courts of appeals have taken a broader view of the 17 restitution provision at issue here. ). 18 limits of the statute is not a narrowing of it. See United States v. Papagno, 639 But respect for the 19 Two of our cases reflect the standard of necessity. 20 Amato imposed restitution for attorney s fees and accounting 21 costs incurred by an internal investigation that uncovered 22 fraud--notwithstanding that not all of the effort and 16 1 expense was requested by the government. 2 159-60, 162 (noting that the victim had assisted in 3 gathering and producing evidence necessary to the 4 government s prosecution ). 5 Bahel, we affirmed restitution for legal fees incurred when 6 the United Nations hired outside counsel to conduct an 7 internal investigation rather than use on-staff lawyers. 8 See 662 F.3d 610, 647-48 (2d Cir. 2011). 9 See 540 F.3d at Likewise, in United States v. In both cases, the internal investigations paid for by 10 the victims unmasked fraud and led to investigations 11 conducted by the authorities. 12 investigations was necessary because the entity had 13 interests to protect (the integrity of its ongoing 14 operations and reputation, at the least) as well as a duty 15 to protect those interests when faced with evidence, 16 indicia, or a grounded suspicion of internal misconduct, and 17 the investigation was a means calculated to achieve the 18 protection of those interests. 19 The expense of the internal A bank s production of wanted posters after a robbery 20 has occurred is by comparison, and in absolute terms, 21 gratuitous. 22 especial likelihood that this bank would again be the victim The crime had been committed; there was no 17 1 of the same robbers; the police had an ongoing investigation 2 and did not seek the bank s cooperation in postering the 3 neighborhood; and the bank had no interest to protect by an 4 independent investigatory effort--and certainly had no duty 5 to undertake it. 6 For many of the same reasons, the security guard served 7 no investigatory purpose. 8 security for the bank after the robbery happened. 9 additional security had been laid on permanently, it would 10 be necessitated by permanent security interests rather than 11 by the conduct of these defendants. 12 guard was hired on a short-term basis; but there is no 13 plausible showing that a second robbery of this branch by 14 these defendants was such an imminent peril or a risk that 15 the bank had a duty to take measures by posting a temporary 16 guard. 17 The guard provided additional If As it happens, the Because these expenses were not necessary to the 18 investigation or prosecution of the offense, and do not fall 19 within one of the other categories of harm enumerated in § 20 3663A(b), restitution for these expenses was improper. 21 22 18 1 2 CONCLUSION The restitution order properly included the amount of 3 money stolen during the bank robberies. For the foregoing 4 reasons, however, we conclude that the only portion of 5 Merchants expenses subject to restitution is the amount 6 paid to the bank s regular staff while the bank was closed 7 as a crime scene. 8 component of the judgments and remand to determine the 9 amount of restitution consistent with this opinion. To that end, we vacate the restitution 19
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