1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-27-1998

United States v. Edwards

Precedential or Non-Precedential:

Docket 98-1055

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Recommended Citation

"United States v. Edwards" (1998). 1998 Decisions. Paper 269.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/269
Filed November 27, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-1055 

UNITED STATES OF AMERICA 

v. 

ROBERT ALLEN EDWARDS a/k/a FIDEL SALIM 

a/k/a JAMES F. WINTER, III a/k/a CHARLES KING 

a/k/a DONALD W. COLEMAN, 

Robert Allen Edwards, 

 Appellant 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

(D.C. Criminal No. 97-117-1) 

Argued Under Third Circuit LAR 34.1(a) 

October 8, 1998 

Before: McKEE AND RENDELL, Circuit Judges, 

DEBEVOISE, District Judge.* 

(Opinion Filed: November 27, 1998) 

_________________________________________________________________ 

*Honorable Dickinson Debevoise, United States Senior District Court 

Judge for the District of New Jersey, sitting by designation. 
 Steven A. Feldman (ARGUED) 

 Of Counsel 

 Feldman and Feldman 

 Suite 206 

 1800 Northern Boulevard 

 Roslyn, NY 11576 

 Attorney for Appellant 

 Michael R. Stiles, United States 

 Attorney 

 Walter S. Batty, Assistant United 

 States Attorney, Chief of Appeals 

 Joseph Dominguez (ARGUED) 

 Assistant United States Attorney 

 615 Chestnut Street 

 Suite 1250 

 Philadelphia, PA 19106-4476 

 Attorneys for Appellee 

OPINION OF THE COURT 

RENDELL, Circuit Judge: 

In this appeal, we are asked to determine whether the 

Victim and Witness Protection Act ("VWPA") or the 

Mandatory Victims Restitution Act ("MVRA") applies to the 

imposition of restitution in sentencing a defendant who 

committed his offenses prior to the effective date of the 

statute but is convicted on or after its effective date. The 

District Court found that although Edwards had no present 

ability to pay restitution, full restitution should be imposed 

under the MVRA. Edwards timely appealed to this court. 

Both sides now agree that the District Court incorrectly 

applied the MVRA to Edwards, and that the Victim and 

Witness Protection Act (VWPA) should have been applied.1 

_________________________________________________________________ 

1. Appellant did not specifically argue that the VWPA, not the MVRA 

applied, but did contend that the District Court should have made 

findings regarding his financial ability to pay before ordering 

restitution. 

This finding is necessary only for cases under the VWPA. 18 U.S.C. 

SS 3663, 3664. 

 2 
We hold that the application of the MVRA to Edwards

constitutes a violation of the ex post facto prohibition, and 

we accordingly reverse and remand for a determination of 

whether restitution is appropriate for Edwards under the 

VWPA. 

I. Factual Background 

Between December of 1992 and October of 1993, 

Edwards was involved in various schemes involving 

counterfeit checks, forged commercial checks, and stolen 

travelers' checks. PSI P 1. Edwards was sentenced on 

December 23, 1997, after pleading guilty to one count of 

conspiracy, one count of bank fraud, seven counts of 

money laundering, and one count of criminal forfeiture. 

Potential monetary penalties included a fine range of 

$12,500 to $5,000,000, restitution of $418,397.15, and a 

special assessment of $500. PSI P 77, 81. The probation 

office's review of Edwards's liabilities and assets indicated 

that he had children to support, did not own property or 

appear to have any assets of note, and had a total liability 

of $92,854 of debts owed to credit card companies and 

banks. PSI PP 61-68. 

At sentencing, defense counsel argued that Edwards did 

not have the ability to pay restitution, while the government 

contended that restitution was mandatory for his offenses 

under the MVRA. The district judge found that although the 

defendant did not have the present ability to pay 

restitution, the MVRA required restitution and ordered full 

restitution in the amount of $418,397.15. (A. at 14, 16, 22).2 

This court has jurisdiction pursuant to 28 U.S.C.S 1291 

and 18 U.S.C. S 3742. As the ex post facto argument was 

not raised before the District Court, plain error review 

applies. See United States v. Dozier, 119 F.3d 239, 241 (3d 

Cir. 1997). 

_________________________________________________________________ 

2. At sentencing, the Assistant United States Attorney indicated to the 

District Court that Edwards' offenses required mandatory restitution. No 

issue of an ex post facto prohibition was raised by counsel or the court. 

A. at 22. Recently, the Justice Department has apparently adopted a 

policy that the MVRA should not be applied to offenses predating its 

enactment. Gov't Br. at 6. 

 3 
II. The MVRA and the VWPA 

In 1996, Congress passed the MVRA, or "Mandatory 

Victims Restitution Act of 1996," Title II, Subtitle A of the 

Antiterrorism and Effective Death Penalty Act of 1996, Pub. 

L. No. 104-132, 110 Stat. 1214, codified in relevant part at 

18 U.S.C. SS 3663A, 3664 (1996). The MVRA became 

effective April 24, 1996, to the extent its application is 

constitutionally permissible. See 18 U.S.C. S 2248 (statutory 

notes). The MVRA makes restitution mandatory for 

particular crimes, including those offenses which involve 

fraud or deceit. See 18 U.S.C. S 3663A(c)(1)(A)(ii). If the 

MVRA applies to a defendant, a court must order 

restitution to each victim in the full amount of that victim's 

losses, and the court cannot consider the defendant's 

economic circumstances. See 18 U.S.C. S 3664(f)(1)(A). 

While the MVRA clearly applies to convictions on or after its 

effective date, its applicability to offenses committed before 

that date is at issue here. See 18 U.S.C.S 2248 (statutory 

notes). 

The prior restitution statute, the Victim and Witness 

Protection Act, or "VWPA," requires the court to consider 

the economic circumstances of the defendant prior to 

ordering restitution. In this Circuit, a District Court has to 

make certain factual findings before ordering restitution 

under the VWPA: 1) the amount of the loss sustained by 

the victims; 2) the defendant's ability to pay that loss; and 

3) how the amount of restitution imposed relates to any 

loss caused by the conduct underlying the offense(s) at 

issue. See Government of Virgin Islands v. Davis , 43 F.3d 

41, 47 (3d Cir. 1994). Under the VWPA, an indigent 

defendant can be made to pay restitution, but the court 

must tailor its findings to a defendant's potential assets or 

earning capacity. Id. 

Neither side contests the fact that Edwards's crimes fall 

under S 3663A if the MVRA applies to him. If the VWPA 

applies to Edwards, however, the District Court erred by 

failing to make the required factual findings prior to 

imposing restitution. In order to determine which statute 

applies, we must determine the constitutionality of applying 

the MVRA to a defendant whose criminal conduct occurred 

prior to the effective date of the statute. 

 4 
III. Ex Post Facto Analysis 

To fall within the ex post facto prohibition, a law must be 

1) retrospective, that is, it must apply to events occurring 

before its enactment; and 2) it must disadvantage the 

offender affected by it by altering the definition of criminal 

conduct or increasing the punishment for the crime. See 

Lynce v. Mathis, ___ U.S. ___, 117 S. Ct. 891, 896 (1997). 

The MVRA would be retrospective as applied to Edwards, 

and it disadvantages him by holding him accountable for 

the full amount of restitution, when under the VWPA, he 

would, in all likelihood, not be held accountable for the full 

amount. The question then is whether the MVRA altered 

the definition of criminal conduct or increased the

punishment for Edwards's crimes. The MVRA did not alter 

the definition of Edwards's criminal conduct, but it did alter 

his fiscal responsibility for its consequences, and we must 

determine whether, in so doing, it increased the 

punishment for his crimes. 

Most of the Courts of Appeals that have considered this 

question have found that the retrospective application of 

the MVRA violates the Ex Post Facto Clause because 

restitution imposed as part of a defendant's sentence is 

criminal punishment, not a civil sanction, and the shift 

from discretionary to mandatory restitution increases the 

punishment meted out to a particular defendant. See

United States v. Siegel, 153 F.3d 1256, 1259-1261 (11th 

Cir. 1998); United States v. Bapack, 129 F.3d 1320, 1327 

n.13 (D.C. Cir. 1997); United States v. Williams , 128 F.3d 

1239, 1241 (8th Cir. 1997); United States v. Baggett, et al., 

125 F.3d 1319, 1322 (9th Cir. 1997); United States v. 

Thompson, 113 F.3d 13, 14 n.1 (2d Cir. 1997); but see 

United States v. Newman, 144 F.3d 531 (7th Cir. 1997). 

In Williams, the Court of Appeals for the Eighth Circuit 

viewed the express language of the MVRA as making clear 

that mandatory restitution was a "penalty," and hence, 

punishment for the purposes of ex post facto analysis. 128 

F.3d at 1241.3 In Siegel, the Court of Appeals for the 

_________________________________________________________________ 

3. Section 3663A(a)(1) provides: 

 Notwithstanding any other provision of law, when sentencing a 

 defendant convicted of an offense [listed under this section] the 

 court shall order, in addition to, or in the case of a misdemeanor, 

 in addition to or in lieu of, any other penalty authorized by law, 

that 

 the defendant make restitution to the victim of the offense . . . . 

 5 
Eleventh Circuit focused on the language of S 3663A(a)(1) 

describing restitution as a "penalty" and its own precedents 

characterizing restitution as a criminal penalty to conclude 

that restitution under the MVRA should be considered a 

criminal penalty, and that the retroactive imposition of the 

full amount of restitution would violate the Ex Post Facto 

Clause. See 153 F.3d at 1259-60.4 The Court of Appeals for 

the Ninth Circuit, in Baggett, focused not so much on the 

punitive character of restitution, but on the change in 

procedure for determining a defendant's responsibility for 

restitution under the MVRA--from the VWPA procedure of 

analyzing the defendant's financial circumstances before 

determining the amount of restitution paid, to the MVRA's 

procedure of ordering full restitution without considering 

the defendant's economic circumstances--to find that the 

retroactive application of the MVRA violated the Ex Post 

Facto Clause. See id. at 1322. 

Of the Circuits that have considered this question, only 

the Court of Appeals for the Seventh Circuit, in United 

States v. Newman, has determined that the retroactive 

imposition of restitution under the MVRA does not violate 

the Ex Post Facto Clause. In Newman, the court conceded 

that the retroactive application of the MVRA would 

disadvantage a defendant whose conduct occurred prior to 

its effective date, but the court stated that since restitution 

was essentially a civil penalty, and not punishment, the ex 

post facto prohibition did not apply. See 144 F.3d at 538.5 

_________________________________________________________________ 

4. Other Circuits have rejected the retroactive application of the MVRA 

outright. See Bapack, 129 F.3d at 1327 n.13 (indicating that the 

retroactive application of the MVRA would raise ex post facto concerns); 

Thompson, 113 F.3d at 15 n.1 (concurring in the parties' agreement that 

the retrospective application of the MVRA would be an ex post facto 

violation). 

5. In so finding, the Newman court relied on Kansas v. Hendricks, 117 

S. Ct. 2072 (1997) and Hudson v. United States , 118 S. Ct. 488 (1997) 

to determine whether restitution can be considered punishment. The 

Seventh Circuit used the analysis set forth in Hudson to determine 

whether restitution is, in fact, punishment: First, a court must first ask 

whether the legislature, in establishing the "penalizing mechanism, 

indicated either expressly or impliedly a preference" for a criminal or 

civil 

penalty. Hudson, 118 S. Ct. at 493. Second, if the legislature indicates 

 6 
In so finding, the Newman court first looked to the

historical character of restitution as an equitable device, 

and opined that restitution serves more as a form of 

individual remedy than a criminal sanction. Id. Along these 

lines, the Newman court stated that restitution serves to 

"ensure that a wrongdoer does not procure any benefit 

through his conduct at others' expense. . . . The criminal 

law may impose punishments on behalf of all of society, but 

the equitable payments of restitution in this context inure 

only to the specific victims of a defendant's criminal 

conduct and do not possess a similarly punitive character." 

Id. at 538 (citations omitted). 

In addition to surveying the historical characteristics of 

restitution as a remedy, the Newman court also noted that 

it had observed "the non-punitive character of restitution in 

prior cases." Id. at 538-39 (citing cases). It did note, 

however, that "our view of restitution is not universally 

shared." Id. at 539 n.7 (citing cases, including United States 

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

_________________________________________________________________ 

an intention to establish a civil penalty, a court must then inquire 

whether the statutory scheme was so punitive in either purpose or effect 

so as to transform what was clearly intended as a civil penalty into a 

criminal penalty. Id. In determining whether a statutory scheme could be 

so transformed, the Court set forth a multifactor analysis, and 

emphasized that the factors had to be considered in relation to the face 

of the statute in question and that only "the clearest proof " will 

suffice 

to override legislative intent. Id. 

Our Circuit has used a somewhat different formulation from that set 

forth in Hudson, namely, that a measure must pass a three-prong test: 

1) actual purpose; 2) objective purpose; and 3) effect, to constitute nonpunishment. See Artway v. Attorney General, 81 F.3d 1235, 1263 (3d 

Cir. 1996). If the legislature intends a particular measure to be 

"punishment," or if retribution was one of its actual purposes, then it 

must fail constitutional scrutiny; if, however, the" `restriction of the 

individual comes about as a relevant incident to a regulation,' " the 

measure must be further analyzed. See id. The continued viability of 

Artway is arguably in doubt in the wake of recent Supreme Court 

precedent, but we need not reach the question here in light of the 

relative clarity of both the statutory language and legislative purpose of 

the MVRA. See, e.g., Hudson, ___ U.S. ___, 118 S. Ct. at 493 & n. 4; E.B. 

v. Verniero, 119 F.3d 1077, 1093-94 (3d Cir. 1997).

 7 
Newman court also looked to the statutory language of the 

MVRA and took issue with the Williams court's reading of 

the plain language of the MVRA; instead, the court found 

the MVRA's statutory scheme to be ambiguous as to the 

"criminal" or "civil" nature of the penalty assessed under 

S 3663A. See 144 F.3d at 539. After further review of the 

historical character of restitution and general 

characteristics of restitution as a remedy, the Newman 

court concluded that the ambiguities found in the statute, 

combined with the traditionally non-punitive character of 

restitution, warranted a finding that restitution should be 

considered a civil, rather than a criminal penalty, and that 

the retroactive imposition of restitution under the MVRA 

would not violate the Ex Post Facto Clause. See id. at 539- 

40. 

We find that the majority view of the Courts of Appeal is 

the better view. Both the statutory scheme and the 

legislative history of the MVRA point toward a 

determination that restitution should be considered a form 

of punishment under the statute. Section 3663A and 

related provisions indicate that restitution is a criminal 

penalty under the MVRA, as it is imposed as an integral 

and necessary part of sentencing, supervised release, and 

probation for the crimes it implicates. 18 U.S.C.SS 3556, 

3563(a)(6)(A), 3563(b)(2), 3565, 3663A, 3664. Even if we 

were mistaken as to the nature of the statutory scheme 

itself, the legislative history of the MVRA leads to the same 

conclusion. The legislative history indicates that Congress 

intended mandatory restitution to be one means by which 

the criminal justice system could be reformed into a system 

that is more responsive to the needs of crime victims, as 

mandatory restitution forces an individual defendant to 

address the harm his crime has caused to the individual 

victims of his crime and to society. See S. Rep. 104-179, 

1996 U.S.C.C.A.N. 924, 925-26, 930-31; see also H. Rep. 

104-16, reported at 1995 WL 43586 (Feb. 2, 1995), at 5-6, 

10; 142 Cong. Rec. H3606 (daily ed., April 18, 1996); 141 

Cong. Rec. S19278, S19280 (daily ed., Dec. 22, 1995); 

Mandatory Victim Restitution: Hearing on S. 173 Before the 

Comm. on the Judiciary of the United States Senate , 104th 

Cong. 805 (1995) (statements of Senators Biden, Grassley, 

and Nickles). In so stating, the legislative history also 

 8 
evinces a Congressional intent to streamline the 

administration of restitution within the criminal justice 

system; to make mandatory restitution under the MVRA a 

penalty separate from civil remedies available to the victims 

of crime; and to caution that the administration of

mandatory criminal restitution should not take on the 

procedural complications of civil proceedings--in other 

words, to ensure that restitution under the MVRA is a form 

of criminal penalty rather than civil redress. See S. Rep. 

104-179, 1996 U.S.C.C.A.N. at 931-34; see also 141 Cong. 

Rec. S19278, S19281 (daily ed., Dec. 22, 1995). Moreover, 

the legislative history also indicates that mandatory 

restitution should be considered a condition of a 

defendant's supervised release and probation. See S. Rep. 

104-179, 1996 U.S.C.C.A.N. at 927, 929; H. Rep. 104-16, 

1995 WL 43586 at 5, 12. Both the language and the history 

of the MVRA convince us that Congress intended the 

restitution it mandated to be a form of criminal 

punishment. 

Further, this finding is consistent with our precedents 

stating views regarding restitution for criminal defendants. 

We previously have indicated that restitution is a form of 

criminal penalty. See United States v. Sleight, 808 F.2d 

1012, 1020 (3d Cir. 1987) ("While one purpose of 

restitution under the Federal Probation Act is to make the 

victim whole, restitution . . . is imposed as a part of 

sentencing and remains inherently a criminal penalty."); 

United States v. Palma, 760 F.2d 475, 478-79 (3d Cir. 

1985) (finding that restitution imposed under the VWPA is 

a criminal penalty, and distinguishing its imposition under 

the VWPA from a civil proceeding in which restitution is 

imposed).6 We have also noted that while criminal 

restitution resembles a civil remedy and has compensatory 

as well as punitive aspects, neither these resemblances to 

civil judgments, nor the compensatory purposes of criminal 

restitution, detract from its status as a form of criminal 

penalty when imposed as an integral part of sentencing. 

See United States v. Woods, 986 F.2d 669, 680-81 (3d Cir. 

_________________________________________________________________ 

6. We also note the retributive aspect of a statutory modification 

mandating payment of restitution regardless of the defendant's means 

based solely on the nature of the crime. 

 9 
1993); United States v. Kress, 944 F.2d 155, 157-59 (3d 

Cir. 1991); United States v. Pollak, 844 F.2d 145, 152-53 

(3d Cir. 1988); see also United States v. Carrara, 49 F.3d 

105, 108 (3d Cir. 1995) (discussing the historical character 

and purposes of restitution in criminal law); Government of 

Virgin Islands v. Davis, 43 F.3d 41, 47 (3d Cir. 1994) 

(describing the compensatory purposes of restitution under 

the VWPA). 

Based on the foregoing, we find that under the MVRA, 

restitution is punishment, and that the retrospective 

application of that punishment to Edwards under the facts 

of this case is a violation of the Ex Post Facto Clause and 

plain error.7 Accordingly, we will reverse the imposition of 

mandatory restitution and remand for the District Court to 

make the appropriate factual findings and determination of 

restitution under the VWPA for Edwards. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

7. We have little difficulty concluding that the violation of the Ex Post 

Facto Clause in this case was plain error based on the analysis and 

holding we set forth in United States v. Dozier, 119 F.3d at 244-45. 

 10