NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 1 9

- 1451

_____________

GOVERNMENT OF THE VIRGIN ISLANDS *

v.

JONATHAN COHEN,

Appellant

*(Amended per Clerk’s Order dated 03/14/2019)

_______________________________________

On Appeal from the District Court of the Virgin Islands

( D.C. Criminal No. 1

- 1 4

- c r

- 0 0 0 41

- 001 )

District Jud g e: Honorable George W. Cannon

___________________

____________________

Argued Ma y 20

, 20 20

Before: GREENAWAY, JR.

, PHIPPS, and FUENTES Circuit Judges

.

( Opinion f

iled : September 9, 2020)

Yohana M. Manning, Esq. [ARGUED]

Manning Legal Services

Suite 2

2120 Company Street

Christiansted, VI 00820

Counsel for Appellant

Denise N. George, Esq., Attorney General

Pamela R. Tepper, Esq., Solicitor General

Dionne G. Sinclair, Esq. , Assistant Attorney General [ARGUED]

Su

- Layne U. Walker, Esq.

Office of Attorney General of Virgin Islands2

Department of Justice

34

- 38 Kronprindsens Gade

GERS Complex, 2nd Floor

St. Thomas, VI 00802

Counsel for Appellee

_____ _ ______

OPINIO N *

____________

PHIPPS

, Circuit Judge

.

Between 2002 and 2013

, Jonathan Cohen evaded Virgin Islands tax obligations for

himself and three corporations that he owned

. In 2014, t he Government of the Virg i n

Islands filed a 21

- count I nformation charging Cohen with the willful failure to file a

return, supply information, or pay income taxes

, see V.I. C ode Ann. tit. 33, § 1524, and

with failure to pay gross

- receipt taxes for his three c orporations, see id. § 43

. The parties

reached a plea agreement under which Cohen would plead guilty to two counts in an

Amended Information and pay $892,402 in restitution

. In return, the Government would

recommend five years’ probation

, and it would preserve its ability to pursue civil

remedies against Cohen for unpaid taxes. As a matter within its jurisdiction, see

48 U.S.C. § 1612 (a)

, t he District Court accepted Cohen’s guilty plea and sentenced him

to the recommended five years’ prob ation along with $10,000 in fines and the agreed

upon amount of restitution, which Cohen had to pay within five years. Later, after Cohen

paid $80,000 of the restitution, the District Court amended the restitution order so that

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not

constitute binding precedent.3

Cohen had to deposit in the court registry payments of $6,000 monthly and three lump

sum amounts by September 2020.

But before the expiration of his probation and after Cohen had made some

monthly payments and one lump

- sum payment

, the Governor of the Virgin Islands

pardoned him

. The pardon identified Cohen, specified his conviction, and fully restored

his civil rights:

NOW THEREFORE

, by the powers vested in me by Section 11 of the

Revised Organic Act of 1954, as amended, I, Kennet h E. Mapp, Governor

of the Virgin Islands of the United States, hereby grant JONATHAN

KALIS COHEN a PARDON for his conviction in Case No.: Criminal No.

DC

- 2014

- CR

- 0041, in the District Court of the Virgin Islands, judgment

having been entered on September 29, 2015, and amended on February 28,

2017, and hereby restore his civil rights in all respects to the extent

allowable by law.

Order Granting a Pardon to Jonathan Kalis Cohen, Dec. 22, 2018 (JA at 3 4

- 35).

After receiving the pardon, Cohen moved to vacat e his sentence and to stay the

transfer of his restitution deposits from the court registry to the Government

. T he District

Court denied th os e motions

, and Cohen appealed that order within fourteen days

. In

exercising jurisdiction over a timely appeal of a final order

, s ee 28 U.S.C. § 1291 ; Fed. R.

App. P. 4(b)

, we review the Distr i ct Court’s legal conclusions de novo

, see United States

v. Reynolds

, 710 F.3d 498, 506 (3d Cir. 2013); see also Saludes v. Ram os

, 744 F.2d 992,

993

- 94 (3d Cir. 1984)

, and we will reverse those part s of the judgment (i) requiring

Cohen to pay restitution and (ii) denying a stay of the transfer of Cohen’s restitution

deposits from the court registry to the Government

.4

This case concerns the Governor’s power to pardon offenses of Virgin Islands law.

A federal statute, the Revised Organic Act of the Virgin Islands

, confers upon the

Governor of the V irgin Islands the power to pardon. See 48 U.S.C. § 1591 (1954)

(permitting the Governor to “ grant pardons and reprieves and remit fines and forfeitures

for offenses against local laws ” )

. The Governor’s pardon power closely resembles the

presidential pard on power. See U.S. Const. art. II, § 2, cl. 1 (granting the President the

“Power to grant Reprieves and Pardons for Offenses against the United States” )

. That

congruence suggests that both powers share similar attributes

, despite their differences in

scope (the Governor’s pardon power applies to offenses under Virgin Islands law; the

President’s pardon power covers violations of federal law).

Several principles govern the President’s pardon power. A pardon mitigates or

sets aside punish ment for a crime. See Nixon v. United States

, 506 U.S. 224, 232 (1993);

United Stat e s v. Wilson

, 32 U.S. (7 Pet.) 150, 160 (1833)

. Yet d espite the potential for

plenary absolution, the pardon power is not an all

- or

- nothing proposition, and a pardon,

in t he form of a commutation, may forgive a portion of the punishment

. See Wilson

,

32 U.S. (7 Pet.) at 150 n.3 (“The president has power to grant a conditional pardon to a

person under sentence of death, by commuting it into imprisonment for life[.]”)

.

Simil arly, a pardon may impo s e conditions precedent or conditions subsequent. See id. at

156

. Even at its zenith

, however, the pardon power does not extinguish civil liabilities

associated with the underlying criminal offense. See Angle v. Chicago, St. P aul

,

M inneapolis & O maha Ry. Co.

, 151 U.S. 1, 1 9 (1894) (“An executive may pardon and

thus relieve a wrongdoer fr om the punishment the public exacts for the wrong, but neither5

executive nor legislature can pardon a private wrong, or relieve the wrongdoer from civil

liability to the individual he has wronged.”)

. Likewise, a pardon cannot override other

constitutional protections

. See Knote v. United States

, 95 U.S. 149, 152

- 54 (1877) ; Pa.

Prison Soc. v. Cortes

, 622 F.3d 215, 242

- 43 (3d Cir. 2010)

. Ultimately, to determine

whether a pardon provides general absolution or is instead subject to limitations or

conditions, courts look to the text of the pardon and construe it in the light most favorable

to the recipient. See Knote

, 95 U.S. at 151

.

Applying those principles to the Governor’s pardon power reveals that Cohen

received a g eneral pardon, free from any limitations or conditions. The Governor granted

Cohen a “pardon” for his conviction and made clear that the pardon “ rest ore [ d ] his civil

rights in all respects to the extent allowable by law

. ” Order Granting a Pardon (JA at 3 4

-

35). The pardon was not a commutation, limited to only a portion of Cohen’s

punishment. Nor was the pardon subject to any conditions. 1

W ithout any limitations or conditions

, the general pardon nullified penalties and

disabilities that attached to Cohen’s offense. See Nixon

, 506 U.S. at 232; Wilson

, 32 U.S.

(7 Pet.) at 160; s ee also Ex parte Garland

, 71 U.S. (4 Wall.) 333, 380 (1866)

.

1 Contrary to the rule that a pardon is viewed in the light most favorable to the recipient,

see Knote , 95 U.S. at 151

, t he Dissent s ubmits that the pardon cannot be ‘ full ’ or

‘ unconditional ’ because it does not use those precise words

. See Dis. Op. at 6. But in

any light, especially one most favorable to Cohen, the full and unconditional nature of the

pardon is evident from (i ) the statement that the pardon “restore[s] [Cohen’s] civil rights

in all respects to the extent allowable by law,” and (ii) the absence of any conditions.

Order Granting a Pardon (JA at 35).6

Consequently, Cohen is no longer bound by his criminal conviction

– in cluding the court

ordered restitution schedule

. 2

For that reason, t he District Court erred by enforcing the restitution award after

Cohen received the pardon. B ecause the pardon was unconditional

, a ny restitution

payments previously deposited in the Court ’s registry that have not been distributed to

the Government of the Virgin Islands must be returned to Cohen. See Osborn v. United

States

, 91 U.S. 474

, 474 (1875).

In disagreeing

, the Dissent contends that the restitution award does not constitute

punishment and therefore cannot be forgiven through pardon. See Dis. Op. at 4

- 5. But as

a general matter, a restitution award in a criminal case constitutes part of a defendant’s

sentence and is punitive. S ee United States v. Sleight

, 808 F.2d 1012, 1020 (3d Cir.1987)

( explaining that under federal law

, restitution, when “ imposed as a part of sentencing [,]

. . . remains inherently a criminal penalty”); see also United States v. Edwards

, 162 F.3d

87, 91 (3d Cir.1998) ( rejecting the view that under federal law restitution imposed in a

criminal case is civil, not criminal )

. The Supreme Court of the Virgin Islands has

reached the same result. See Hightree v. Virgin Islands

, 60 V.I. 514, 530 (2014)

. More

2 It is presently immaterial whether Cohen remains bound by his promise in the plea

agreement to pay restitution

. It may be that his promise to pay restitution survives the

pardon because “ plea bargains are essentially contracts, ” Puckett v. United States

, 556 U.S. 129, 137 (2009). But since plea agreements are e xecutory contracts “until

embodied in the judgment of a court,” Mabry v. Johnson , 467 U.S. 504, 507 (1984), it

may also be that by eliminating penalties for the offense, the pardon would reduce the

plea agreement to an unenforceable executory contract. Re gardless, any lingering

contractual obligation that Cohen may have from the plea agreement to pay restitution

would be a civil remedy, separate and apart from the criminal sentence , and that sentence

has no operative effect after the pardon. See Angle , 15 1 U.S. at 19.7

s pecifically still, Cohen was sentenced to probation, and under the Virgin Islands Code,

absent substantial reason, a probationary sentence must impose restitution. S ee V.I. Code

tit. 5

, § 3721. With the inclusion of that restitution order in his probatio nary sentence,

Cohen’s failure to pay restitution would trigger revocation proceedings

, and potentially a

prison sentence

. See V.I. R. Crim. P. 32.1 (a)(2)

. By carrying the possibility of

incarceration as a consequence for non

- compliance, see id. R

. 32.1( a)(6), the restitution

order most certainly constitutes part of Cohen’s punishment.

W hile the Governor’s pardon extinguishes Cohen’s criminal penalty

, it does not

absolve him of civil tax liability for the years in which he did not pay taxes

. Thus

,

nothing about the pardon prevents the Government of the Virgin Islands from pursuing

civil remedies to collect outstanding taxes from Cohen

– which do not appear to be

precluded by the statute of limitat ions. See V.I. Code Ann. tit. 33, §§ 1161

- 1163

. The

pardon simply frees Cohen from criminal penalty associated with his tax liab i lity

, which

still remains

.

For these reasons, we will reverse those parts of the judgment (i) requiring Cohen

to pay restitution and (ii) denying a stay of the transfer of Cohen’s restitution deposits

from the court registry to the Government.1

GREENAWAY, JR., Circuit Judge

, dissenting

.

In this case, Jonathan Kalis Cohen seeks to evade paying hundreds of thousands of

dollars in owed back taxes. He does so in reliance on a gubernatorial pardon that made

no mention of his owed taxes and no attempt to discharge his obligation to pay. Because

payment of back taxes is not a “punishment” necessarily discharged by a pardon, I see n o

basis for extending the gubernatorial pardon to extinguish Cohen’s obligation to pay

restitution. I must therefore dissent.

I. Background

Cohen was charged with and ple d guilty to willful failure to file tax returns and

pay taxes in violation of Virg in Islands law. As part of his plea agreement, he agreed to

pay restitution in full to the Virgin Islands Government Bureau of Internal Revenue (the

“VIBIR”) in the amount of $892,402.00. He was also sentenced to five years’ probation

and order ed to pay $10,000 in fines. He was pardoned in December 2018, well before he

finished paying the full amount owed in restitution

.

II. Cohen’s Restitution Consists of Owed Back Taxes

As a starting point, I emphasize that i t is undisputed that the restitution Cohen was

ordered to pay consists solely and entirely of Cohen’s owed back taxes. Cohen and the

VIBIR arrived at this numbe r, $892,402.00, after extensive negotiations with the aid of

accountants . As Cohen’s attorney stated at the change of plea hearing:

[W]e’ve done quite a bit of work between accountants to come to the right

numbers. The right numbers are contained in the plea agreement, which is,

which just reflects the money owed, it doesn’t reflect interest or p enalties.

And the Government may audit that later. But the agreement is that the2

restitution is $892,402, and that includes all the income tax in Count 1 and

the gross receipts tax in Count 2.

1:14

- cr

- 0041

- GWC, Doc. 184, at 9; see also JA7 (“Cohen knew that the amount

he agreed to pay, and was ultimately ordered to pay, was for payment of taxes.”).

It is well understood that, in criminal tax cases, a court may order restitution that

consists of and operates as a payment of owed taxes. See, e.g.

, United States v. Clayton

,

613 F.3d 592, 596 (5th Cir. 2010) (“[T]he payment of criminal restitution based on taxes

owed constitutes the payment of tax.”). Cohen was thus ordered to pay $892,402.00

solel y to satisfy his owed back taxes: the restitution order did not contain or reflect any

other costs

.

III. A Pardon Only Discharges Punishment

That the restitution was solely and entirely an assessment of Cohen’s owed back

taxes bears emphasizing because a pardon can only discharge a defendant’s punishment

.

See, e.g., Nixon v. United States , 506 U.S. 224, 232 (1993) (“[T]he granting of a pardon

is in no sense an overturning of a judgment of conviction by some other tribunal; it is [a]n

executive action tha t mitigates or sets aside punishment for a crime.”) (emphasis in

original) (internal quotation marks and alteration) ; United States v. Wilson , 32 U.S. (7

Pet.) 150, 160 (1833) (“A pardon is an act of grace, proceeding from the power intrusted

with the execution of the laws, which exempts the individual, on whom it is bestowed,

from the punishment the law inflicts for a crime he has committed.”)

.

This limitation on the power of a pardon is well understood both in case law and

legal literature. In Unit ed States v. Noonan , 906 F.2d 952 (3d Cir. 1990) , for example,3

we held that a presidential pardon “does not create any factual fiction that Noonan’s

conviction had not occurred to justify expunction of his criminal court record. Poena

tolli potest, culpa perennis erit (The punishment can be removed, but the crime

remains).” Id. at 960 (internal quotation marks omitted)

. Our question is therefore

whether Cohen’s restitution order constituted punishment such that it was discharged as a

result of the gubern atorial pardon . In my view, the answer to that question is no.

IV. Cohen’s Restitution Was Not Punitive

We have drawn distinctions between compensatory restitution, punitive restitution,

and restitution that serves both functions. The nature of restit ution depends on the

specific case:

We have held that the purpose of restitution under the Mandatory Victim

Reparation Act is to compensate victims for their losses and to make them

whole. United States v. Diaz , 245 F.3d 294, 312 (3d Cir. 2001); see also

United States v. Mustafa , 238 F.3d 485, 490 (3d Cir. 2001) (fine is a form of

punishment, whereas restitution is merely intended to compensate victims);

Gov’t of the Virgin Islands v. Davis , 43 F.3d 41, 47 (3d Cir. 1994) (restitution

is compensatory rather than punitive); United States v. Kress , 944 F.2d 155,

159 (3d Cir. 1991) (restitution differs from fine or penalty and is intended to

compensate victims).

On the other hand, in United States v. Edwards , 162 F.3d 87 (3d Cir. 1998),

we concluded that for e x post facto purposes, restitution under the Mandatory

Victim Restitution Act is a form of penalty. 162 F.3d at 91

– 92; see also

United States v. Sleight , 808 F.2d 1012, 1 020

– 21 (3d Cir. 1987) (prohibiting

prejudgment interest because purpose of restitutio n under Probation Act is to

make victim whole; order is imposed as part of sentencing process and

remains inherently a criminal penalty).

. . .

A survey of case law illustrates that restitution is best classified as

compensatory, punitive, or a combination of both according to the context in

which the issue arises.4

United States v. Christopher , 273 F.3d 294, 298

– 99 (3d Cir. 2001). Restitution i s not,

therefore, inherently punitive in all circumstances . Whether it is discharged by a pardon

should depend on the specific facts

.

There may well be a case where we struggle to draw the line between a punitive

restitution award and a compensatory restitution award in discerning the reach of a

pardon, but this is not that case. Here, there can simply be no question that the restitutio n

was purely compensatory. Cohen was legally obligated to pay $892,402.00 in taxes

regardless of whether he committed any crime . The restitution reflects a legal obligation

to pay taxes that existed as a result of Virgin Islands law. Cohen was required to pay his

taxes from 2004 to 2010 but failed to do so. The restitution order does not add anything

to his preexisting payment obligation

— the punitive component of his sentence was his

term of probation and the fines levied.

As the Government aptly argu ed before the District Court, for that reason this

restitution is different from, for example, paying for a victim’s medical bills or any

property damages that resulted from a crime: “[T]hese are all damages that are a

consequence, similar to rebuilding a house after arson, fixing a window after a burglary.

These are consequences of the act that gave rise to the criminal punishment. Taxes are

not consequential. They were owed before and they were compensatory to the

Government of the Virgin Islands.” JA 107

– 08. 1

1 The Majority cites the Supreme Court of the Virgin Islands’ decision in Hightree v. Virgin

Islands , 60 V.I. 514 (2014), for the proposition that restitution is inherently punitive. Maj.

Op. at 6

. But the crime f

or which the defendant was ordered to pay restitution in Hightree

was aggravated rape in the first degree, and the defendant was ordered to pay restitution in5

I therefore agree with the District Court that an order to pay overdue taxes is not

punishment. See JA127

– 28 (“I do not see paying overdue taxes as punishment. These

are his taxes, he agreed to pay. So I also make it clear that the restitutio n in this case for

payment of taxes was not penal in nature, it was an order for payment of undue taxes.

The record is clear about that.”) ; JA11 (“[T]he restitution order in this case was not a

punishment flowing from the crime but a structured agreement under which Cohen would

pay his preexisting tax obligations.”) . For that reason, I would hold that Cohen’s purely

compensatory restitution order did not fall under the gubernatorial pardon.

V. The Text of the Pardon Does Not Discharge Cohen’s Restituti on Obligation

The text of the pardon itself further supports my conclusion. The Majority

emphasizes that there are no conditions or limitations described in Cohen’s pardon. That

is true

— the text of the pardon does not explicitly identify conditions. On the flip side,

nor does the pardon refer to itself as a “full” or “unconditional” pardon (unlike the “full

pardon ” in Knote v. United States , 95 U.S. 149, 150

– 51 (1877))

. But most importantly,

the Major ity has not acknowledged that the pardon makes no reference whatsoever to

Cohen’s obligation to pay restitution or back taxes . In marked contrast , the pardon

makes specific reference to Cohen’s probationary sentence . It states that Cohen “was

convicted o f failure to file tax returns . . . and sentenced to five (5) years’ probation.”

JA34. Where the pardon makes specific reference to Cohen’s probationary sentence, and

the form of compensation for the victim’s counseling services. Id. at 517

, 519 . Restitution

in such a case differs markedly from restitution that consists solel y and undisputedly of

owed taxes. The Supreme Court of the Virgin Islands has never indicated that restitution

in a tax case is inherently punitive.6

no mention at all of restitution or Cohen’s owed taxes, that choice of wording must be

viewed as intentional : the G overnor’s pardon does not manifest any intention to eliminate

Cohen’s obligation to pay restitution. Indeed, how could it. Governors are not generally

in the business of determining an individual citizen’s tax liability. Here , t he plain

language of the pardon does not discharge Cohen’s obligation to pay his back taxes

— it

extinguishes only the remainder of his probationary sentence and any associated

limitations on his civil rights.

The Majority’s decision will bestow an unde served windfall on Cohen to the

detriment of the people of the Virgin Islands. Of course, the VIBIR may now seek

payment through the tax courts. But that process will be lengthy and of immense cost to

the Virgin Islands. More important, the fact that th e Government of the Virgin Islands

may seek civil recourse for unpaid taxes should not be of any consequence here.

Cohen has already admitted that he will attempt to challenge the $892, 402.00

figure and assert other defenses in those proceedings to avoid paying the full amount of

his back taxes, in spite of the fact that he agreed that the restitution ordered reflected his

owed taxes. See Oral Arg. 8:29

- 8:40 ; 12:08

- 12:13; 26:40

- 27:33 ; 38:13

- 38:23 (May 20,

2020), https://www2.ca3.uscourts.gov/oralargument/audio/19

-

1451_GovernmentVirginIslandsv.Cohen.mp3 ; see also JA11 (Cohen stated at his

sentencing that he “will still pay [his] obligations in taxes to the Virgin Islands

Government.”). I see no reason to grant Coh en this windfall where the Governor’s

pardon made no attempt to extinguish Cohen’s restitution obligation. For these reasons, I7

would affirm the District Court’s denial of Cohen’s Motion to Vacate

. Given my

divergence of viewpoint, I respectfully dissent

.