APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Crim. No. 75-278 Civil Rule 35.
Gibbons and Hunter, Circuit Judges, and Layton,*fn* District Judge.
Ellen Buechler pleaded guilty to one count of embezzling $262.12 from a federally insured bank. She was sentenced under the Federal Youth Corrections Act, 18 U.S.C. § 5010(a), to a five-year suspended sentence, three years of probation, and - as a condition of probation - she was ordered to make restitution of some $1,989.35 to the bank. In a motion to correct sentence under Fed. R. Crim. P. 35,*fn1 Buechler argued both that the restitution order had no legal basis in the Federal Youth Corrections Act and that the court arrived at the amount of restitution in an illegal manner, since it refused to hear Buechler on the subject. We do not question the refusal of the court below to grant relief on those grounds. Nevertheless, we must vacate the sentence because of our conclusion that the district court lacked authority to order restitution in an amount greater than the loss caused by the offense for which Buechler was convicted.
On June 13, 1975, Ellen Buechler, a former employee of the Pilgrim State Bank, appeared before the District Court to enter a plea of guilty to a one-count information charging her with willful misapplication of bank funds by an employee of a federally insured bank in violation of 18 U.S.C. § 656. The district judge explained the information to her:
Now this charges that on or about January 20, 1975 at Cedar Grove, New Jersey, you were an employee of the Pilgrim State Bank, and that bank has its deposits insured by the Federal Deposit Insurance Corporation, and that while you were an employee of the bank and with intent to injure and defraud the bank you knowingly and wilfully misapplied the sum of $262.12 of the monies [sic], funds and credits of that bank.
Brief for Appellee, Exhibit A, at 6. After the court explained Buechler's rights, she repeated her intention to plead guilty to that information.
The judge then inquired about a plea bargain:
THE COURT: Have there been any plea negotiations? I ask this question to counsel.
MR. LOWENSTEIN [Federal Public Defender]: None, Judge. This is an original plea.
THE COURT: Even so, have there been any negotiations leading to this plea and the information?
MR. RAZZANO: No, your Honor.
MR. LOWENSTEIN: I had urged the United States Attorney's office to waive the prosecution all together [sic], and they felt they could not do so in this case.
MR. RAZZANO: The only representation that I can make is that this plea will dispose of all prosecutions by the United States of America arising out of the Defendant's theft of approximately $3,000 from the Pilgrim ...