APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF THE VIRGIN ISLANDS. (D.C. Criminal Nos. 88-00132 and 88-00403).
Before: Mansmann, Hutchinson, and Lewis, Circuit Judges.
On December 21, 1988, Astarte Davis was charged in a 28-count information with forgery, grand larceny, perjury, obtaining money under false pretenses, filing false documents, maintaining a fraudulent civil action, preparing false evidence and making false statements to the government in Government of the Virgin Islands v. Astarte Davis, D.C. VI Crim. No. 88-132 (the "V.I. Case"). Davis was also indicted on five counts of mail fraud in United States v. Astarte Davis, D.C. VI Crim. No. 88-403 (the "U.S. Case").
On October 10, 1991, Davis pleaded guilty to Counts One (Conspiracy to Defraud, in violation of Virgin Islands Code, Title 14, Section 551); Two (Forgery on Real Property Deed, in violation of Virgin Islands Code, Title 14, Section 791(1)); Twenty-Four (Offering False Evidence in a Civil Case, in violation of Virgin Islands Code, Title 14, Section 1504); Twenty-Five (Perjury, in violation of Virgin Islands Code, Title 14, Section 1541); and Twenty-Six (Selling Property Obtained Unlawfully, in violation of Virgin Islands Code, Title 14, Section 2101(a) in the V.I. Case; and Count Two (Mail Fraud, in violation of United States Code, Title 18, Section 1341) of the indictment in the U.S. Case. Davis also pleaded guilty to Making False Statements in violation of 18 U.S.C. § 1001 ( § 1001) and Failure to Appear in violation on 18 U.S.C. § 3146 ( § 3146).*fn1
Both the V.I. Case and the U.S. Case involved Davis' efforts to defraud the estate of James Merrills Rice (Rice estate) of more than one million dollars worth of real and personal property.*fn2 Specifically, Davis prepared a false and fictitious last will and testament of James Rice purporting to bequeath to her the bulk of the Rice Estate; altered Rice's power of attorney, giving herself full and complete control over his property, assets and affairs; and prepared a false warranty deed for the purpose of facilitating the transfer of valuable realty owned by Rice to herself. Using the forged documents, Davis transferred title for or otherwise unlawfully appropriated or conveyed personal property belonging to Rice which was valued at more than $120,000. Davis also forged Rice's signature on a series of checks which totalled $10,985 and entered into contractual agreements concerning Rice's boat, the Fish Eagle, assigning to herself a percentage of the profits earned by the venture.
In addition to the other illegal activities Davis stood convicted of by virtue of her plea in the V.I. Case, she filed a lawsuit against a number of entities and individuals, including Rice, to quiet title to property she had fraudulently obtained. In preparation for that lawsuit, Davis forged letters, deeds and other documents to make it appear as though James Rice was alive and that he had given all of his worldly possessions to her and her sons. Davis presented the false documents at a deposition during which she also gave false testimony.
With respect to the U.S. Case, Davis prepared forged documents instructing the Guardian Savings Bank in Houston, Texas, to transfer two one hundred thousand (100,000) dollar certificates of deposit into an account held by the Icon Corporation, which was wholly-owned by Davis and her sons.
As a result of her guilty pleas, on January 31, 1992, the District Court of the Virgin Islands, Division of St. Croix, sentenced Davis to 10 years imprisonment and five years probation in connection with the V.I. Case, and 15 months imprisonment in connection with the U.S. Case.*fn3 In addition, the court ordered her to pay restitution in the amount of $547,000.*fn4
Following the district court's denial of her motions for reduction of sentence and for reconsideration, Davis appealed, claiming that the district court had failed to make specific findings with respect to: (1) the amount of loss sustained by the Rice estate as a result of the offenses; (2) her own financial resources and the relationship between the amount of restitution imposed, and (3) any loss caused by the underlying offenses for which she was convicted. Upon the government's request, we remanded the case for additional fact-finding in connection with the district court's restitution order. Government of the Virgin Islands v. Davis, Nos. 92-7472, 92-7473 and 92-7474 (3d Cir. Jan. 20, 1993).
On remand, the district court conducted an evidentiary hearing and reduced the amount of restitution from $547,000 to $297,246.78. Of the total amount, $229,282.78 was awarded pursuant to Title 5, Virgin Islands Code, § 3721 (1993) (V.I.C. § 3721 or V.I. restitution statute), and the remaining $67,964 was awarded under the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3663-3664. Davis now appeals the modified restitution order. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
Davis raises three issues on appeal: (1) that the district court erred by including legal fees which the Rice estate incurred to recover funds which Davis had fraudulently obtained, as well as lost interest, in her obligation to the Rice estate; (2) that the district court erred in finding that she had the present or future means to comply with the restitution order, and (3) that the district court improperly ordered restitution under the V.I. restitution statute.*fn5
Our review of whether a district court correctly imposed an order of restitution is bifurcated: we exercise plenary review over whether the award is permitted under law, but we review the amount of the award for abuse of discretion. United States v. Badaracco, 954 F.2d 928, 942 (3d Cir. 1992).
Because we conclude that restitution ordered pursuant to the VWPA may not include legal expenses, we will reverse the district court's inclusion of $27,964 in such fees in the amount of restitution ordered under the VWPA. We will, however, affirm the district court's order with respect to the inclusion of interest, and will ...