Hughey v. United States

RESPONDENT:United States
LOCATION:Maple Heights High School

DOCKET NO.: 89-5691
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 495 US 411 (1990)
ARGUED: Mar 27, 1990
DECIDED: May 21, 1990

Amy L. Wax – on behalf of the Respondent
Lucien B. Campbell – on behalf of the Petitioner

Facts of the case


Audio Transcription for Oral Argument – March 27, 1990 in Hughey v. United States

William H. Rehnquist:

We’ll hear argument next in No. 89-5691, Frasiel Hughey v. the United States.

Mr. Campbell.

Lucien B. Campbell:

Mr. Chief Justice, and may it please the Court:

This case calls upon this Court to interpret the reach of a criminal statute, the restitution provision of the Victim and Witness Protection Act of VWPA.

In this case, the Petitioner was charged with offenses of embezzlement of mail and fraudulent use of credit cards.

Pursuant to a plea agreement which was silent as to restitution, he entered a plea of guilty to count 4 only of the indictment.

Count 4 of the indictment charged that on or about October 18, 1985 he fraudulently used a credit card issued by MBank to one Hershey Godfrey and thereby caused losses aggregating more than $1,000.

In the interim, between his plea of guilty and the sentencing hearing, he received notice from the probation service of the court that it was proposing a restitution order far in excess of losses on the count of conviction.

He filed a timely written objection to that notice, pursuant to local procedure.

At the sentencing hearing information presented was that the total losses on the Godfrey credit card, which was the subject of the count of conviction, was about $10,000, speaking in round numbers, and the issuing bank, MBank, suffered overall losses of about $90,000.

Over the Petitioner’s renewed objection that such a restitution order would exceed both the limits of the law, and his ability to pay, the court sentenced him to pay $90,000 in restitution within five years after expiration of an eight-year term of imprisonment.

Now, in this case we turn first, as we expect the Court will, to the plain language of the statute.

It is reproduced in our opening brief in the appendix at page A-1.

Turning here I see that Section 3579 provides that the court when sentencing a defendant convicted of an offense–

William H. Rehnquist:

Just where are you reading from, Mr. Campbell?

Lucien B. Campbell:

–I’m in my opening brief at appendix page A-1, Your Honor.

William H. Rehnquist:

Whereabouts on page A-1?

Lucien B. Campbell:

Section 3579(a)(1)–

William H. Rehnquist:


Lucien B. Campbell:

–order of restitution, provides that the court when sentencing a defendant convicted of an offense, and the language pertinent to this case is

“may order that the defendant make restitution to any victim of such offense. “

Now, this part says who pays… the defendant, and who receives… a victim of such offense.

And the Respondent has agreed with us that that language means a victim of the offense of conviction in 3579(a)(1).

Now, going forward in the statute–

Byron R. White:

3579 doesn’t say how much… how much restitution.

Lucien B. Campbell:

–That’s correct, Your Honor.

We go to–

Byron R. White:

Yeah, but now you have to get the 3580, I guess.

Lucien B. Campbell:

–Well, I believe that we would go next to 3579(b).

Subsection (b), which begins on our page A-1 and extends over to A-2–

Byron R. White:


Lucien B. Campbell:

–sets out the covered losses and remedies.

In fact, there are three of them.

Property loss, bodily injury, funeral expense when death results.

The one that governs this case is set out on appendix page A-1, the same page I was reading from; (b)(1) governs property loss.

It provides that in the case of an offense resulting in loss of property of a victim of the offense, the order may require that such defendant return the property to the owner of the property or pay the value of the property.

Now, because they is simply nothing to suggest that the meaning of the term 3579(b)(1) authorizes the court to order return of the property taken in the offense, and does not authorize anything more than that.

Now, the government relies in large measure on Section 3580(a), reproduced at appendix pages A-4 and A-5 in our brief.

We rely on it also because we believe that it supports our reading of this statute.

It says that the court shall consider the amount of the loss sustained by any victim as a result of the offense.

Here again, with nothing to indicate that the offense means anything different from what it meant back in 3579.

Now, the government would argue that the catchall language at the end of 3580(a) must mean that the court has authority to order restitution beyond the offense of conviction.

What this section does is say that the court shall consider loss sustained by the victim as a result of the offense, certain factors bearing on the defendant’s ability to pay and such other factors as the court deems appropriate.

I think I should respond to this because the government places considerable reliance on that catchall phrase in 3588 expanding the plain language of 3579.

I would note, first, that 3580 is a procedural section.

It is so titled, it’s called Procedure for Issuing Order of Restitution.

Its content is largely procedural.

By its terms, I believe it applies only after the court has decided that restitution is already covered under Section 3579, the section that is more substantive.

It says page A-4),

“the court, in determining whether the order restitution under Section 3579 of this title, and the amount of such restitution. “

I believe this means that unless the court has already determined that restitution is covered under Section 3579, then the court does not reach 3580(a).

Now, I think it’s also significant that the government is asking a general catchall phrase to expand other specific provisions of the statute.

We say that 3579(b)… (b)(1) property loss, is very specific in authorizing the remedy in the case of an offense resulting in loss of property, to return that property or pay its value.

And it simply cannot be the duty that the government would assign to it of expanding a specific provision.

Now, while the statute has no–

William H. Rehnquist:

Can’t you also derive some comfort from the ejusdem generis rule, or the noscitur a sociis… whatever you want to call it… that the catchall phrase does not… is thought to be limited to the same types of things that the earlier parts of the clause are contained?

Lucien B. Campbell:

–Yes, Mr. Chief Justice.

We do rely on that rule.

It would first be taken to refer to items of the same character in the list which precede it.

That is, the loss sustained by the victim of the offense and factors bearing on the defendant’s ability to pay.

Lucien B. Campbell:

But even if it is read to have more general application beyond that list in which it appears, then we say that it applies to the authority expressly conferred in this statute to order partial restitution or no restitution.

And because it so clearly refers to that, it cannot support the government’s meaning of expanding authority.

And I’m referring back to 3579(a)(2) on Appendix Page A-1, which says that if the court does not order restitution or orders only partial restitution, the court shall state the reasons.

So this statute specifically contemplates that in a proper case a court may order only partial restitution or no restitution.

In the language of 35–

Sandra Day O’Connor:

Mr. Campbell, what… what if the charge were of a conspiracy or a scheme to defraud?

Lucien B. Campbell:

–Your Honor, that is the rule that the Ninth Circuit seems to have adopted, and throughout this case we have not challenged that rule because we don’t believe that it applies to this case.

Sandra Day O’Connor:

Well, I… I… it may not.

What would your view be about that?

Lucien B. Campbell:

I can… I can–

Sandra Day O’Connor:

Then does that broaden the range of possible victims and amounts of restitution?

Lucien B. Campbell:

–It certainly would have that practical effect, Justice O’Connor, but I… I see some support to that rule because I can certainly understand that in an offense such as mail fraud, a particular scheme to defraud is an element of that defense.

And for a person to stand guilty of mail fraud, for example, that person must be proven guilty of that larger scheme.

So, we have not challenged that rule, and I see some support for it.

Sandra Day O’Connor:

Do you suppose that a defendant could agree to pay a larger sum of restitution than you would argue for in this case if… if it had been part of a plea agreement?

Lucien B. Campbell:

A defendant may certainly agree to do that, Justice O’Connor.

We note that the respondent seems to ascent that there’s no admissions exception.

The courts… the courts of appeals have frequently applied such an exception.

There is no doubt that it could be enforced as part of a plea bargain.

Sandra Day O’Connor:


Lucien B. Campbell:

And Respondent alludes to that in their brief.

In other words, if a defendant entered into a plea agreement calling for him to make total restitution beyond the offense of conviction and willfully failed to follow through on that plea agreement, he would be a peril of the government reinstating dismissed counts, for example.

So even if there is no admissions exception that would make such an order of restitution fully enforceable under this statute, it is certainly enforceable in other ways.

Anthony M. Kennedy:

Could… could… could the court order a payment for these other counts, maybe even to other banks as a condition of probation?

Lucien B. Campbell:

Your Honor, the courts are not clear over whether the old Federal Probation Act continued in effect after the enactment of the Victim and Witness Protection Act.

In other words, during the period of time when both were facially in effect some of the courts so held at that time, even when both of these laws were in place side by side, that where a court imposed probation it could… it did have greater flexibility in imposing conditions of… restitution as a condition of probation.

Anthony M. Kennedy:

Of course, then there wouldn’t be a judgment under this section in the sense of–

Lucien B. Campbell:

No, Your Honor it would not be–

Anthony M. Kennedy:

–It would be a different type of order.

Lucien B. Campbell:

–It would not carry the enforcement provisions, for example.

Harry A. Blackmun:

Mr. Campbell, help me out with one respect.

In 3580 at the top of page 85 of your brief, is the phrase

“sustained by any victim, as a result of the offense. “

On your theory, why shouldn’t that be the victim as a result of the offense?

Can you explain the word, the use of the word “any”?

Lucien B. Campbell:

I believe, Justice Blackmun, that it’s clear from the statute as a whole that there may be more than one victim of the offense of conviction, even though the statute would limit a recovery to a victim of the offense of conviction that there may be more than one victim.

Harry A. Blackmun:

xxx rather than any.

What about the possibility that there would be no victim?

Driving so as to endanger or something of that sort.

I mean I assume there are offenses that don’t have any particular victim.

So… so you would say “any” to cover the case where there isn’t any.

Lucien B. Campbell:

If there… that certainly… that’s certainly one view Justice–

Antonin Scalia:


I suppose there’s no identifiable victim of treason.

Lucien B. Campbell:

–That’s certainly correct.

In our further interpretation of Section 3580(a) we believe that instead of expanding the substantive reach of this statute it would reach other factors that the court would consider in deciding whether to order partial restitution or no restitution.

And two of those that I see are specifically mentioned in the statute.

3579(d) on appendix page A-2 says that if the court finds that it would unduly complicate or prolong the sentencing proceeding to fashion an order of restitution, the court may order no restitution.

That’s certainly a factor that the Court might consider.

3579(e)(1) up at the top of page A-3, the court shall not impose restitution for a loss for which the victim has received or is to receive compensation, except that in the interest of justice the court may order restitution to the person compensating, thus, introducing a new test… interest of justice.

In addition, this is not a statutory factor, but an obvious factor, is that in a multi-defendant case I can certainly imagine the court considering how to apportion restitution.

In other words, considering whether to apportion it on relative ability to pay, relative culpability, relative gain or some combination of factors.

And all of these are factors that the court might well consider under 3580(a) that go to imposing partial or no restitution, and have nothing to do with imposing restitution beyond the count of conviction.

So, I simply don’t see how the catchall can carry the burden that the government would assign to it.

This is a case where we suggest that the unambiguous language of the statute limits restitution to the offense of conviction and the Court should so hold.

Now, if the Court should find some ambiguity, then it would be proper to resort to customary rules of statutory construction.

Turning first to the legislative history, I believe that the Court will find an extraordinarily explicit record that directly supports the petitioner’s interpretation.

At the same time, this record does not contain any suggestion to support Respondent’s expansive reading of this statute.

The first thing that we would look at is H.R. 6915 in the 96th Congress, 1980, a progenitor or forerunner of the 1982 VWPA.

We’ve reproduced the pertinent parts in our reply brief at appendix pages 2 and 3.

Lucien B. Campbell:

It will be seen that Section 3331 was the analog or forerunner of our substantive Section 3579, a defendant who has found guilty of an offense may be sentenced to make restitution to a victim of the offense.

And 3332, nature of a sentence, is the analog of 3579(b)(1), which gives the covered loss and remedy in the property loss case.

A defendant may be sentenced in the case of an offense resulting in loss of property, to return such property or pay its value.

Now, Congress used that type of language in 1980, and what is perhaps more important is what Congress understood that that language meant.

In the accompanying committee report, also reproduced in our reply brief, appendix page 9, Congress said of that section,

“Restitution may only be imposed with respect to damages established by the conviction. “

“Restitution cannot be imposed for damages caused by the conduct in charges that are dismissed. “

William H. Rehnquist:

Now, what is the relevancy of these provisions to the provisions that we’re interpreting, Mr. Campbell?

Lucien B. Campbell:

The relevance that I see, Mr. Chief Justice, is that the language is functionally identical to what Congress ultimately passed in 1982 in the VWPA.

And this shows Congress’ understanding of what that language would accomplish.

And the record shows nothing that… to show that Congress changed course in that two-year period.

When Congress enacted the VWPA in 1982, there was a significant expansion from existing law.

And that is it freed the restitution order from conditions of probation.

And Congress used very express language when it when it did that in 3579.

So the court may order restitution in addition to or in lieu of any other penalty authorized by law.

And at the same time in the Senate Judiciary Committee report accompanying that, it explained what it had done.

It said Section 3579(a) expands current law by authorizing an order of restitution independent of a condition of probation.

Nowhere did it say that they expanded current law by permitting restitution beyond the offense of conviction.

In that report, the Senate report accompanying the VWPA when it was enacted, shows that Congress was fully aware that the existing Federal Probation Act limited restitution to the offense of conviction.

The report quoted it.

But nowhere in the section of the Senate report problems of current law, or anywhere in that report, did the committee say that it is a problem of this law that it limits it to the offense of conviction.

And I would suggest that it is simply inconceivable that Congress would bring about so major a change in the Federal Criminal Law, as Respondent urges, without accounting for it in the legislative history.

The next item in the history we believe is significant is the 1986 Amendment of Section 3579.

In that year as part of a technical amendments bill, Congress amended 3579(a)(1) in one respect so that the last phrase read instead of restitution to any victim of the offense, it said any victim of such offense.

And the accompanying report said that the purpose of the amendment was to clarify that any victim of such offense referred back to the offense of conviction.

And as well, that report cited to an earlier report, a year earlier, that said explicitly that the VWPA limited restitution to the offense of conviction.

William H. Rehnquist:

And the language that is in… in effect that governs your client’s case is the word “the” or the word “such”?

Lucien B. Campbell:

The word (b)(1).

William H. Rehnquist:

Yeah, but didn’t Congress change in ’86… change from “the” to “such”?

Lucien B. Campbell:

Yes, Your Honor.

William H. Rehnquist:

And does that ’86 amendment govern your client’s case or not?

Lucien B. Campbell:

We take the position that it does, Your Honor.

When Congress amended the statute in 1986 it… it said this amendment will take effect upon enactment, which was after commission of the offense in this case but prior to sentencing in this case.

And Congress also took pains to say that no substantive change was intended by that amendment.

No change in the meaning of the statute was intended.

So I see no reason why the congressional intent cannot be… cannot be given effect.

William H. Rehnquist:

And if there is no difference in the meaning… between such and the, then it’s immaterial obviously whether it governs your client’s case or not.

Lucien B. Campbell:

It… it is only significant if the… if the Court has need to resort to the legislative history accompanying the ’86 amendment.

We believe that the meaning is the same in 1982 and 1986, and under either version the result needs to be the same in this case.

The only significance would be the weight to be given to the legislative history of the 1986 Amendment.

So, to… to recap briefly this legislative history, for the better part of this century, since the Federal Probation Act of 1925, Congress had said that restitution is limited to the offense of conviction.

The forerunner, a progenitor of this law in 1980, Congress said that functionally identical language to what was eventually passed would so limit restitution.

When Congress passed the VWPA, it said we have expanded restitution beyond conditions of probation.

It did not say we have expanded restitution beyond the offense of conviction.

And, finally Congress amended this law in 1986 to make it abundantly clear that the offense means the offense of conviction.

I believe that where the legislative intent is so plainly expressed, and especially where it is consistent with the plain language of the statute, the petitioner’s right to relief is… is clear.


John Paul Stevens:

Mr. Campbell, may I ask one… one question?

Do you… do you agree with the court of appeals that the amount is not necessarily limited to the amount specified in the indictment?

Lucien B. Campbell:

–I… I certainly agree with that, Justice Stevens, because the statute contemplates that there are certain covered losses that are not going to be part of the indictment, such as therapy of a victim, such as lost income in the case of bodily injury.

And I think some of the court’s went astray and seeing that necessarily they were going to have to look outside the indictment to find some of the covered losses that induced them to look further outside the indictment, further than what the language would bear.

John Paul Stevens:

But you’d agree, even as strict property law case there was a robbery of a hundred… an alleged robbery of $1,000 and the evidence shows it’s really $1,500, they could recover the full $1,500?

Lucien B. Campbell:

Provided that it’s supported by conviction for that offense.

And that was the position that we took in this case where the government alleged only the jurisdictional amount, alleged an amount… an amount aggregating more than $1,000.

But Petitioner proposed a restitution order of $10,000, all of the losses on the Hershey Godfrey credit card as being fairly within the compass of this statute.

But if any of this analysis should leave any residual ambiguity at this point, then I would refer to the fact that this is a criminal statute, and we’re not here to find out what happened to the limitation that the old Federal Probation Act had, but… but to look at this statute and see what does it expressly authorize, because when we are speaking of criminal penalties for criminal offenses it is a question of what has the Congress expressly authorized.

Where the court of appeals found an ambiguity in this language it erred by interpreting the statute expansively against the individual.

The court of appeals did not even address or recognize the effect of rule of lenity and in… in its decision.

But this Court has said on many occasions that when it’s called upon to choose between two possible meanings of criminal statute, it will require that Congress speak clearly and distinctly before… before choosing the harsher alternative.

And I believe that rule as well guides the Court in this case.

Lucien B. Campbell:

If it please the Court, I’d reserve time for rebuttal.

William H. Rehnquist:

Very well, Mr. Campbell.

Ms. Wax.

Amy L. Wax:

Thank you, Mr. Chief Justice, and may it please the Court:

–The question presented in this case is whether under the Victim and Witness Protection Act of 1982 a defendant who is convicted of or pleads guilty to an offense may be sentenced to pay restitution for damage caused by acts for which he has not been found guilty.

The answer, we submit, is yes.

The Victim and Witness Protection, the VWPA, which authorizes a court to order restitution to any victim of the offense of which a defendant is convicted, mandates full and fair restitution to that victim, restitution that reflects a realistic assessment of the harm to the victim caused by the defendant.

Thus, as virtually every lower court to consider the question has held the amount of restitution the defendant may be ordered to pay is not limited to the particular loss from the narrow count of conviction.

If the courts were limited to considering only that loss, full and fair restitution to victims of crime would often be impossible.

Sandra Day O’Connor:

Well, Ms. Wax, certainly the language of the statute seems to tie the amount of restitution to the harm resulting from the offense of conviction.

Amy L. Wax:

Well, we believe that each of the sections that uses that locution, losses resulting from the offense of conviction, of which there are three, that there is a way to interpret each of these provisions which squares with our view of the statute.

Sandra Day O’Connor:

Well, but, of course, it’s a criminal statute, and I suppose the rule of lenity and strict construction comes into play.

Amy L. Wax:

Well, these three provisions that Petitioner alludes to do not contain an explicit limit on the amount of restitution to the–

Sandra Day O’Connor:

No, but it appears to be tied to the harm resulting from the offense of conviction.

Amy L. Wax:

–Well, let me, if I may, go through each of these provisions one by one and give our version of why these provisions were structured and written as they are written and what Congress was attempting to accomplish with… with… with these sections.

First, starting with 3580(a) and (d) which Petitioner basically relies on in his opening brief.

3580(a) we see has a two-part structure.

It first says, the court in determining whether to order restitution shall… and the amount of such restitution… shall consider the amount of the loss sustained by any victim as a result of the offense.

And then it goes on to say,

“and such other factors as the courts deem appropriate. “

Now, the first part of that section speaks in mandatory terms.

It tells the sentencing court what it shall consider.

And it specifies the amount of loss resulting from the… the offense, which we maintain is only part of what… which are only some of the acts the court can consider… can consider.

It’s appropriate that in speaking in mandatory terms the provision alludes specifically to the loss resulting from the offense because that is going to form the centerpiece of the vast majority of restitution orders, if only because there will always be an offense of conviction, and most of the time it’s the offense of conviction which will cause the harm.

There may be many cases in which there is no other significant harm to the victim.

There may be cases where the… the count of conviction encompasses all of the damage done to victims and there’s nothing more to consider.

Now, it’s also appropriate that the damage caused by any related acts of the defendant be subsumed or covered under the catchall phrase

“and such other factors as the court deems appropriate. “

because that’s–

William H. Rehnquist:

Well, you… you… you say it’s appropriate that that be… what does that mean?

Amy L. Wax:

–Well, that’s the discretionary part.

That… just because of the way restitution works, in our view, that is going to be a discretionary part of the order.

It isn’t always going to be appropriate to include harm from related acts in the restitution order.

There’s… there’s a constant part of the restitution order and there’s a variable part of the restitution order.

William H. Rehnquist:

May I ask–

–Yes, but you’re… you’re… you’re… you’re reading something into this kind of catchall phrase that gives it a much different contact… content than the… the… the clauses that come before it, it seems to me, which isn’t the way you would ordinarily read it.

Amy L. Wax:

Well, actually not because one of the things that we think comes under that phrase is quite parallel to what the court… to what the provision mentions in the very first section.

Both of them deal with harms from the defendant’s acts, both of them deal with loss to the victim from the defendant’s acts.

It’s just that the first part deals with the core of the restitution order, which is the harm from the offense, and the under the second part goes what the court can look to depending on the circumstances.

William H. Rehnquist:

Yes, but… if… if… if you read it as it is, you… you say a court shall consider the amount of the loss sustained by any victim as a result of the offense.

The financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents and such other factors as the court deems appropriate.

Now the last two parts of that are related to the defendant’s ability to pay and the defendant’s… that… that sort of thing.

Amy L. Wax:

Well, that’s true, but we don’t… we don’t see that clause as necessarily just referring to other factors… factors with respect to the defendant.

We think it’s entirely–

William H. Rehnquist:

You see it as… as actually broadening the language of… of the amount of the loss sustained by any victim as a result of the offense?

Amy L. Wax:

–Well, as pertaining to different acts of the defendant that might cause a loss, depending on the circumstances.

And, of course, that won’t always be the case.

I mean, there will be cases where there isn’t any other loss or, if there is, it wouldn’t be appropriate for various reasons for the court to take it into account.

And this… this reading… we’re not reading this section in isolation.

This comports with the way–

John Paul Stevens:

But may I ask you… do you think the judge had discretion to order restitution in an amount less than the amount of the loss if, for example, there… at the showing of the defendant doesn’t have any money and he can’t raise the money and so forth?

Amy L. Wax:

–Yes, we do.

John Paul Stevens:

So that you aren’t saying the amount of the loss is a minimum that applies in all cases.

But whereas if it’s treated as a maximum, then all these other factors go to whether or not you give them the maximum, or an appropriate–

Amy L. Wax:

Where it says “shall consider” so the court–

John Paul Stevens:

–That’s right, rather than shall award.

Amy L. Wax:

–Oh, yes.

John Paul Stevens:

See, if it… if it were a minimum, you’d say “shall order” that.

But if you say it’s… it’s a maximum, you say you considered as the first factor you look at.

Amy L. Wax:

Well, right.

Amy L. Wax:

I’m mean, we… we only see it as the first factor we look at but we don’t see it as exhausting all of the harms that can be looked at.

John Paul Stevens:

But there’s nothing else in the statute that refers to other harms unless you read it into “such other factors”, of course.

Amy L. Wax:

Well, there are three general provisions of the statute which we think make clear that Congress wanted judges… did not intend for judges to look simply at the technical bounds of the count of conviction.

And we… we detail those in our brief.

The first is 3579(d) which says the order shall be as fair as possible to victims, except that the court shall not prolong and complicate the sentencing process.

And if it would complicate and prolong the sentencing process, then the court has discretion to cut back on the award.

The second is the general statement of finding and purposes, which appears on page (5)(a) of our appendix which says that one of the goals of the statute is to ensure that the Federal Government does all that is possible for victims… for victims without infringing on the constitutional rights of defendants.

And the third is the this amendment to Rule 32(c) of the Federal Rules of Criminal Procedure to provide for the preparation of a pre-sentence report which speaks in the most sweeping terms possible about the facts that are to be gathered–

John Paul Stevens:

Well, tell me… you went a little fast for me.

Where in 5(a) does it say the government must do everything possible for every victim?

Amy L. Wax:

–On 5(a) of the appendix of our brief–

John Paul Stevens:


Amy L. Wax:

–at the bottom Section 2, 18 U.S.A. 1512 Note, Section 2(b)(2).

John Paul Stevens:


At the very bottom of 5(a)?

Amy L. Wax:

Yes, at the very bottom.

John Paul Stevens:

Thank you.

Amy L. Wax:


Antonin Scalia:

Ms. Wax, the section you’ve been talking about, as Mr. Campbell pointed out, is entitled Procedure for Issuing Order of Restitution, and it is really the previous section, 3579, that sets forth what the order of restitution may be.

And wherever the statute refers to the order, it says in ordering restitution under this section.

That is, under 3579.

3580 says that as well… the court in determining whether to order the restitution under Section 3579.

I really interpret the structure to be that 3579 says what the maximum can be, and it sets forth quite explicitly what restitution may be ordered.

And 3580 I… I regard as being a provision that says to what extent you may go below the maximum permitted by that.

It, of course, begins by reciting,

“shall consider the amount of the loss sustained. “

but that’s… that’s all… as recited in 3579.

And then it says, however, you can consider all these other things, the financial resources.

If you can’t afford the whole loss, you don’t charge the whole loss.

Why isn’t that a more logical way to read the thing than… than to try to read new substantive provisions into 3580, a provision that is entitled procedure?

Amy L. Wax:

–Well, first of all, Your Honor, Petitioner in a sense cast the first stone in this because he did rely on 3580(a) and (d) as evincing a substantive limit on the amount of restitution.

We think that those two procedural provisions can fully be squared with the absence of a substantive limit, and we think that there is no substantive limit in 3579.

The core of the authorization to grant restitute… to award restitution to victims is in 3579(a)(1), where the court says when sentencing a defendant convicted of a offense, the court may order restitution to any victim of the offense.

And even though Petitioner started out saying that that limited the amount of restitution, he now agrees that that says it is absolutely silent on the amount of restitution that can awarded to the victim.

John Paul Stevens:

I know, but today he relied 3579(b) and that does talk about values rather specifically.

Amy L. Wax:

We believe that to rely on 3579(b) as… as… as presenting an ironclad limit on the amount of restitution to the count of conviction is to completely misinterpret both the language of 3579(b) and the–

John Paul Stevens:

Well, there’s certainly–

Amy L. Wax:

–reason why it was put–

John Paul Stevens:

–is nothing in 3579(b) that suggests anything larger than the value of the property that was taken, is there?

Amy L. Wax:

–Well, there’s–

John Paul Stevens:

There’s quite… quite a detailed description of return the property, return its value, return its value less what they got from a third party.

There’s a whole scheme based on value without the slightest hint of something in excess of value.

Or at… do I misread it?

Amy L. Wax:

–Well, we understand it as… as allowing the court to use the calculus prescribed in (b) for parallel instances of property loss or damage or bodily harm that are caused by other than the conduct of conviction.

We do not read this… this phrase

“in the case of an offense resulting in damage to or loss. “

et cetera, as language of limitation.

If anything, its language of illustration.

The focus of this provision is on giving the court guidelines for calculating a restitution in the case of bodily injury or loss of property, and the reason that Congress put it in, was to work in tandem with 3579(d) to make sure that the courts would have a way of simplifying and expediting.

John Paul Stevens:

Yes, but the puzzling thing about this argument is the easiest case is where you know a specific loss of $1,000, and you don’t need a lot of guidelines to say give back the money.

But if you’re going to say in addition to giving back the money, you’ve got to loss at all these other intangibles out there, I’d think you’d need guidelines for the case where you want more than what was stolen.

Amy L. Wax:


John Paul Stevens:

That’s where you have the real problems in deciding how much.

And they never even mention that possibility.

These are kind of lousy guidelines if that’s what you’re saying they’re intended to do.

Amy L. Wax:

–Well, we… the legislative history reveals that… or at least experience with the previous law I… I would rather say, revealed that the hangup was how… deciding how to calculate the various components of damage and what should be left in and what should be taken out.

That problem arises with regard to the offense of conviction amount as much as to the amount that might be awarded for other acts.

And so this provision solves the problem for both components of the award.

Antonin Scalia:

Ms. Wax, what… what also suggests to me that 79(b) is… is exclusive and sets forth the only kind of restitution you can get is the fact that it’s so comprehensive.

It goes right down even kind of injury there could be to a victim.

Antonin Scalia:

It begins with property and then it says bodily injury in (2), and then (3) is death.

And incidentally in the case of death, under (3), all this provides for his pay an amount equal to the cost of necessary funeral and related expenses.

Now, since you consider that just illustrative, I suppose you would say that Federal judges can invent wrongful death amounts for… for death to… to… to an individual.

Can… can… can they do that?

Amy L. Wax:

Your Honor, I’m… I’m not implying that it is necessarily simply illustrative with regard to the category of the types or components of damages that can go into the award.

I… I am saying that it is illustrative with regard to a completely different category, which is the acts that can give rise to the harm, the types of actions that could be the source of the harm or the cause of the harm.

Antonin Scalia:

I see.

I see what you mean.

Amy L. Wax:

And those are two completely different categories.

Antonin Scalia:

Fair enough.

Amy L. Wax:


The first category is what… is this provision is concerned with.

That is an entire focus of this provision.

The first category is just… is incorporated in here in one line of locution, which we think does not exhaust the possibilities for the award of damages.

We think it leaves open the possibility of awarding damages resulting from other acts of the defendant that are not encompassed by the literal terms of the count of conviction.

Byron R. White:

What is your… what is the limit?

Is there some outside limit on what compensation you think can… can be ordered?

How would you describe it?

Amy L. Wax:

Well, there are two answers to that.

We do think there are limits, yes.

We don’t think that the sentencing court has unlimited discretion–

Byron R. White:

It seems to me you’d certainly leave a… a judge… a judge has a duty under (a)(2) that if he doesn’t order restitution or orders only partial restitution, he has to give his reasons.

Amy L. Wax:


Byron R. White:

How does… how does he ever know when he’s ordering only partial restitution under your theory–

Amy L. Wax:


Byron R. White:

–which seems to be so… be so open-ended that… you tell me what their limits are?

Amy L. Wax:


Well, there are three possible sources of limitation.

One is that Congress in its wisdom incorporated the limitation that it has to be harm to the victim of the offense.

So, there are certain victims that are going to get compensation and unfortunately–

Byron R. White:

Oh, I understand that.

Amy L. Wax:

–there are certain that are going to be left out.

Byron R. White:

But you just say–

Amy L. Wax:


Anthony M. Kennedy:

–it doesn’t say how much.

Amy L. Wax:


The second limitation… and here is in the concept of restitution itself.

It has to be an order of restitution.

And that means that there… there should be some linkage, some relationship, between the conduct of the defendant that’s taken into account, the related conduct.

There has to be some unity between that conduct and the actual offense of conviction.

So an act by the defendant that harms the victim which is remote… extremely remote in time or has no clear connection to the episode or the ongoing course of conduct of which the count of conviction is a part would probably be inappropriate.

It would be inappropriate for the judge to include that in the order of restitution, and it could well be an abuse of discretion.

And to understand that, one needs to look at the purposes of restitution and the nature of restitution.

The purposes of restitution, as with other criminal sanctions, are deterrence, retribution and rehabilitation.

–And it is abundantly obvious that, for example, restitution for a mere fraction of the harm that the defendant actually did to the victim would not adequately serve those purposes.

But the flip side of that is that restitution for very remote or unrelated harms would not really add to the power and the value of the sanction of restitution for this crime.

Anthony M. Kennedy:

Of course, one of the collateral effects of your argument… there are other banks here.

And the MBank I believe, which was the one that got the restitution order, in effect may have gotten all this man’s assets.

It got a huge order of restitution.

And the other banks could that were just in counts that were not prosecuted or not subject to plea agreement received nothing.

And that’s a collateral effect of what you argument and… that doesn’t seem to me to square with evenhanded restitution.

I recognize no one argues you can give restitution to other victims.

But that’s a collateral effect of what your arguing here.

Amy L. Wax:

There’s no doubt that in the practical application of this statute, as Congress wrote it, there are victims who are going to lose out.

I mean, if… if the pattern of a certain crime is multiple instances of violations directed at many, many different victims, which sometimes happens, for example, with mail fraud counts, then the fact is that there’s not going to be terribly effective restitution to the mass of victims if the conviction is limited to one count.

Congress structured the Act this way.

We think it had good and sensible reasons for doing it because it does create boundaries, it does cabin the sentencing court’s discretion in a way that is… makes a lot of sense for restitution, which is about the relationship between the victim and the defendant and the confrontation between the victim and defendant and measures whereby the defendant makes the victim whole.

So we understand the concern that you’re speaking of and it is a concern but this is the way Congress wrote the statute, in our opinion.

I was speaking of the general provisions of the statute which in our view buttress our reading of the statute as permitting the sentencing judge under appropriate circumstances to go beyond the offense of conviction to look at the harm done by the defendant to the victim.

And, as I said, there were three provisions of the statute which we believe can be read to mandate full and fair restitution and to show that restitution confined to the count of conviction could not possibly fulfill Congress’ purposes in enacting–

John Paul Stevens:

Could I just make one… one observation?

You repeatedly said these provisions can be read in such and such a way.

Don’t you think there’s a sort of a duty of fair notice to the defendant that they… they must be read this way when you’re ordering restitution of nine time the amount that was specified in the event?

The mere fact that a statute can be read to support this kind of result, is that… is that… do you think that’s enough in a case like this?

Amy L. Wax:

–Well, I… I guess we’d… I’d have to say that perhaps can be read is… is not the best way of putting it.

John Paul Stevens:

I don’t think it is.

Amy L. Wax:

We think it must be read because of what Congress was trying to accomplish with this statute and because the reading that Petitioner urges would so eviscerate the efficacy of these restitution provisions that we just can’t believe that this is the way Congress meant for them to be interpreted.

And we’re not just saying that out of thin air.

We think that that impulse finds substantiation in particular provisions of the statute, which admittedly some… some of which speak in general terms, but which we think show Congress’ intent.

Byron R. White:

If you lose this case, it seems to me that government can always protect itself against too narrow a restitution order.

In your plea bargaining arrangement you can bargain about restitution.

Amy L. Wax:

Your Honor, we don’t think so.

Byron R. White:

Why not?

Amy L. Wax:

First of all, it’s true that we could attempt to elicit a promise from the defendant that they pay comprehensive restitution flowing from all the counts that we think they are guilty of in the process of hammering out a plea agreement on a very narrow count.

We could… the prosecutor could try and get that promise out of the… the defendant.

Byron R. White:

But you couldn’t get it in an order, you don’t think, if you loss this case?

Amy L. Wax:

No, we don’t think so.

And this case illustrates why that promise is so odious.

This individual has 13 years to pay restitution.

If he willfully reneges on his promise to pay restitution at year 10, we do not think that the prosecutor has a realistic prospect of reviving the charges that he’s relinquished as part of the deal and making them stick.

The fact is that victims will suffer, and defendants will go scot free.

They will not–

Sandra Day O’Connor:

Well, Ms. Wax, this looks a case where the government entered into a very poor plea agreement from the standpoint of public policy.

And I would think a prosecutor would want to be a little careful before entering into such a limited agreement with someone who has caused so much harm or been privy to much broader activity than that encompassed in the plea agreement.

Now, I guess you would agree that the prosecutor doesn’t have to accept a limited plea bargain like this or go along with it.

Amy L. Wax:

–That’s correct.

The prosecutor doesn’t.

But… and we… we don’t actually think that, as these matters go, the prosecutor did anything out of the ordinary or anything that, you know, he shouldn’t have done here.

I mean, this individual was sentenced to eight years in jail on the basis of the plea to this single count.

Sandra Day O’Connor:

Well, what does that mean in terms of actual service in incarceration?

Sandra Day O’Connor:

A year or two?

Amy L. Wax:

Well, this was before the Sentencing Reform Act.

I actually don’t know the answer to that question.

But he did receive a substantial jail term.

But that’s just the point.

The… the prosecutor got a plea bargain which involved a substantial jail term, which more or less comports with our view of the kind of penalty that an individual should get for pilfering $90,000.

But in doing so, he had to sacrifice a tremendous amount of restitution.

He basically had to go down to 1/100th of the value of what this person took from the bank, which we think is virtually as good as no restitution at all.

And this will happen over and over again, we think, if this Court embraces Petitioner’s view of the statute.

It will… it will impale prosecutors on the horns of a dilemma, it’s true.

The question will be should, you know, should I accept this plea bargain which necessarily involves convicting the person on fewer counts than he was indicted on, or even that we think could prove, and thereby sacrifice the interest of victims.

And we don’t think… we think Congress was aware of prosecutorial practice and we don’t think that Congress wanted that kind of sacrifice of victims’ interests where again and again in the statute, in the legislative history, it emphasized that full and fair restitution to victims was its goal.

Antonin Scalia:

There is another provision of the statute, of course, that makes it easy for the victims to file and win a suit.

It… it does provide that in any civil action brought by a victim, the… the acts constituting the offense will be conclusively established, doesn’t it?

Amy L. Wax:

Yes, but once… but there, that estoppel provision, 3580(e), does limit estoppel to the acts involved in the narrow offense of conviction.

So it doesn’t help the individual–

Antonin Scalia:

It doesn’t help your case either.

Amy L. Wax:

–We think it does help our case and so did the court below, Your Honor, because in saying the offense involving the acts giving rise to restitution, that provision implies that there might be acts giving rise to restitution that are not part of the offense.

And that’s how the court below interpreted it as in fact implying a more expansive view of the statute.

So, we would disagree with that.

If the court has no further questions–

William H. Rehnquist:

Thank you, Ms. Wax.

Mr. Campbell, do you have rebuttal?

Lucien B. Campbell:

Thank you, Mr. Chief Justice.

First I’d like to suggest the petitioner’s interpretation would in no way eviscerate the Victim and Witness Protection Act.

Apart from the government’s considerable power to insist on full restitution where appropriate as part of a plea agreement, the statute involved in this case, credit card fraud, specifically permits aggregation.

Not only of amounts, but of credit cards.

And, in fact, count 6 of the indictment that appears in the Joint Appendix, page 5 and 6, one of the dismissed counts, aggregated not only amounts but two different credit cards.

If the government in this case had considered it so important to obtain a conviction that would support an order of full restitution under the VWPA, it could have insisted on a plea of guilty to a count aggregating all of these losses.

The other half of the government’s argument other that the catchall phrase in 3580(a), seems to be general legislative purposes… that is, to restore victims.

Lucien B. Campbell:

Congress did have that goal within the limits of the criminal justice system.

But at the same time, Congress had a very specific purpose to limit restitution to the offense of conviction.

And this Court has repeated as recently as last month in the Crandon and Boeing case that general expressions of legislative purpose can rarely carry the burden of expanding a criminal statute beyond what is clearly warranted in the text.

I believe that Congress balanced competing interests when it passed the VWPA, it perpetuated the bright line of restitution limited to losses established by the offense of conviction.

And that is a line that serves all of the interests well.

William H. Rehnquist:

Thank you, Mr. Campbell.

The case is submitted.