On Appeal from the United States District Court for the District of New Jersey (Camden), D.C. Criminal No. 87-00201-01.
Higginbotham, Mansmann and Greenberg, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Appellant pleaded guilty to one count of contempt of court in violation of 18 U.S.C. § 401 (1982). She now appeals the judgment of the district court ordering her, as a special condition of probation, to pay restitution. We will affirm the decision of the district court.
On February 11, 1987, appellant, Patricia Hand, was chosen to serve as a juror in United States v. Militello, a criminal trial involving multiple defendants charged with narcotics violations. Among the seven co-defendants tried was George Pepe, who had been indicted for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846 (1982).*fn1 See Appellee's Brief at 5.
After six weeks of testimony, the jury received the case for deliberation on March 27, 1987. During deliberation, which lasted until April 3, 1987, Hand and Pepe had impermissible contact: Pepe gave Hand flowers, they exchanged two or three notes, and Pepe twice telephoned Hand at her residence. The jury returned verdicts of guilty against five co-defendants, found one not guilty, and deadlocked with respect to Pepe. The jury vote on Pepe was 11 to 1 in favor of conviction. Hand was the sole exception.
Hand's conduct was brought to the attention of the trial judge when five co-defendants filed motions for a new trial, claiming that they had been denied due process because of the contacts between Hand and Pepe. The district court granted an evidentiary hearing on their motions. However, two of these co-defendants pled guilty to lesser charges, and withdrew their motions, before the hearing. The court then vacated the verdicts against the remaining three co-defendants after hearing evidence, but they also pled guilty to lesser charges prior to commencement of a new trial. Moreover, Pepe, who had filed a motion for acquittal after the mistrial, withdrew his motion and pled guilty to lesser charges involving his original offense.
As a result of her conduct, Hand pleaded guilty to contempt of court in violation of 18 U.S.C. § 401 (1982). She also agreed to cooperate with the investigation and prosecution of additional charges against Pepe. In a subsequent trial, she testified against Pepe, who was charged with jury tampering and obstruction of justice in contravention of 18 U.S.C. § 1503 (1982). Pepe was convicted of these charges and sentenced to a $5,000 fine and one year imprisonment.
Hand was later sentenced to a six month jail term, three of which were suspended, two years probation and assessed twenty-five dollars. As a special condition of probation, however, Hand was ordered to pay $46,850 in restitution under authority of the Victim and Witness Protection Act of 1982 ("VWPA" or "the Act"), 18 U.S.C. §§ 3579, 3580 (1982), redesignated 18 U.S.C. §§ 3663, 3664 (Supp. III 1985) (eff. Nov. 1, 1987).*fn2 See United States v. Hand, No. 87-201, Judgment and Probation Order (D.N.J. Apr. 8, 1988) reprinted in Appellant's App. at 5. This restitution represented losses resulting from Hand's offense that were sustained by the United States Attorney's Office, the Drug Enforcement Agency ("DEA"), and the United States Marshal's Service, calculated as follows: (1) $14,500, which was approximately one-sixth the annual salaries of the two Assistant U.S. Attorneys who prosecuted the Militello case for seven weeks of trial and two weeks of trial preparation; (2) $12,000, which was the same fraction of the salaries of the two DEA agents assigned to the case; (3) $20,000 in travel costs and lodging for the U.S. Attorneys and D.E.A. agents; and (4) $350 in witness fees and travel expenses paid by the U.S. Marshal Service. See Appellee's Brief at 8. Hand appeals from the judgments of conviction and sentence imposed against her only on the issue of restitution. We are not, however, persuaded that the court's imposition of sentence constituted any abuse of discretion and, accordingly, we will affirm.
Hand presents three substantive challenges to the district court's order for restitution. First, she contends that the entire restitution order is improper because any damages to the government are remote and speculative. She argues that the "government cannot claim that the results of [the] trial were lost when, in fact, the presentation of the case caused defendants to plead guilty during and after the completion thereof." Appellant's Brief at 6. Second, Hand asserts that because the DEA agents were witnesses at the trial, she should not be required to pay restitution for their salaries and expenses. Finally, she argues that restitution for the Assistant U.S. Attorneys is improper because the "government did receive some benefit from the trial in question." Appellant's Brief at 8. None of these contentions warrant intrusion upon the district court's judgment.
The damages claimed by the government are neither remote nor speculative. In promulgating the VWPA, Congress intended to "insure that the wrongdoer [be] required to the degree possible to restore the victim to his or her prior state of well-being." S. Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted in 1982 U.S. Code Cong. & Admin. News 2515, 2536. While the term "victim" is not defined in the statute, appellate courts have interpreted the congressional mandate to include governmental bodies. See United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir. 1986) (county was a "victim" under VWPA since defendant had defrauded its social service agency of welfare payments), cert. denied 479 U.S. 963, 93 L. Ed. 2d 407, 107 S. Ct. 462 (1986); United States v. Dudley, 739 F.2d 175, 178 (4th Cir. 1984) ("the government is not foreclosed from establishing that it has been victimized by the crime and recovering restitution" for unlawful use of food stamp coupons). Unfortunately, the dissent speaks of the "U.S. Attorney's Office" as though it were not part of a branch of government and chooses selectively excerpts from the legislative history that do not profess to define the full coverage of the statute.
In our view, the U.S. Attorney's Office was as much a victim in this case as was the social service agency in Ruffen and the United States Department of Agriculture in Dudley. Indeed, in Dudley, the Court of Appeals for the Fourth Circuit anticipated and rejected the argument of the dissent by noting:
It does not require great perspicacity to appreciate the substantial difference between restitution to the person victimized by the crime (who could, as here, be another arm of the government bringing the prosecution, but who, more likely than not, will prove to be a private third party) and forfeiture, collectible only by the avenging United States government bent on punishing an offender.
739 F.2d at 177 (emphasis partially added). Certainly, the U.S. Attorney's Office is the "arm of the government bringing the prosecution," and it has no lesser rights than other victims who sustain considerable economic losses. Like most private parties, the lawyers in the U.S. Attorney's Office and the investigatory agents do not work without compensation. When the time for which the government compensated its employees was "lost" because of Hand's illegal acts, it was just as significant a financial loss to the government as when, in Dudley, food stamps were stolen and fraudulently used. To paraphrase Abraham Lincoln, a lawyer's time is his stock and trade. When the U.S. Attorney's Office has expended time and resources that are rendered futile, as in this case, by the misconduct of a juror, the financial losses incurred are indistinguishable from those losses that occur when the "stock and trade" of another government agency, such as food stamps in the Department of Agriculture, are misappropriated.
In arguing that the government is not a victim within the meaning of the statute, the dissent relies on testimony given to the Subcommittee on Criminal Law by a retired civil servant who suffered a broken hip as the result of a purse snatching. The dissent contends that the plight of such individuals was the motivation behind Congress recognizing that "too often the victim has been the 'forgotten person' in the criminal justice system." S. Rep. No. 532, 87th Cong., 2d Sess. 10, reprinted in 1982 U.S. Code Cong. & Admin. News at 2516. While certainly Congress intended to provide restitution to victims who suffer broken hips when their purses are snatched, there is not a word in the Senate Report to suggest that Congress intended to allow restitution only for those individuals who are perceived of as "forgotten persons." The ultimate logic of the dissent is that if General Motors or Chase Manhattan Bank had funds stolen, in violation of federal criminal law, a judge could not require the wrongdoer to pay restitution to those corporations because they do not fall under the penumbra of "forgotten persons" in our capitalistic system. We find that, under the facts of this case, the United States Attorney's Office was a victim, even though it may not be as sympathetic a figure as the aged civil servant who was mugged.*fn3
Here, the government was certainly harmed by Hand's conduct since it lost "hard-won convictions of five defendants and a wasted effort to try George Pepe before an impartial jury." Appellee's Brief at 12. While Hand argues that the fruits of the Militello trial were not totally vitiated, because the government was able to salvage guilty pleas to lesser charges from the five defendants and Pepe, we disagree with her conclusion that those pleas rendered the government's damages minuscule simply because it "did not have to re-try the original case." Appellant's Brief at 6. The government has lost five original jury verdicts and suffered a mistrial with regard to Pepe. Absent a showing of sufficient evidence to ...