1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-30-1994

United States v. Turcks

Precedential or Non-Precedential:

Docket 93-1322

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Recommended Citation

"United States v. Turcks" (1994). 1994 Decisions. Paper 204.

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UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

 

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No. 93-1322 

 

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UNITED STATES OF AMERICA 

v. 

ARTHUR TURCKS, 

Appellant

---------- 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Criminal No. 92-00297-01) 

 

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Argued Friday, September 23, 1994 

BEFORE: BECKER, COWEN and GARTH, Circuit Judges

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(Opinion filed November 30, 1994) 

---------- 

Peter Goldberger (Argued) 

 Law Office of Peter Goldberger 

50 Rittenhouse Place 

Ardmore, Pennsylvania 19003-2276 

Attorney for Appellant 

Tammy E. Avery (Argued) 

Office of United States Attorney 

615 Chestnut Street 

Philadelphia, Pennsylvania 19106 
Attorney for Appellee
 ---------- 

 

 OPINION OF THE COURT 

 

 ---------- 

GARTH, Circuit Judge: 

 Defendant Arthur Turcks was convicted on each count of a 

nineteen-count indictment, charging conspiracy, credit card fraud 

and bank fraud. On appeal, Turcks contests the jury 

instructions, the failure to merge the nine counts of "access 

device" fraud, 18 U.S.C. § 1029(a)(2), into one offense, and the 

district court's restitution order. 

 We have jurisdiction pursuant to 28 U.S.C. § 1291. Because 

Turcks did not object to any of the district court's rulings, we 

review for "plain error".1 Although we find no "plain error" in 

the jury instructions or with respect to the multiplicity of 

counts, the restitution ordered by the district court was not 

supported by the necessary fact-finding as required by United 

States v. Copple, 24 F.3d 535 (3d Cir.), cert. denied, 1994 WL 

466503 (Nov. 7, 1994). Hence we affirm the district court's 

rulings in all matters other than its restitution order. As to 

the portion of the district court's sentence affecting 

restitution, we reverse and remand for appropriate fact-finding 

and a redetermination of the restitution order. 

 

1. Counsel on appeal was not trial counsel. 
 I 

 Arthur Turcks and co-defendant Earl Warfield were co-owners 

of the Lansdowne Video Store in Philadelphia, Pennsylvania. On 

May 27, 1992, a federal grand jury returned a nineteen count 

indictment against Turcks and Warfield.2

 Count One charged Turcks and Warfield with conspiring to 

commit credit card fraud in violation of 18 U.S.C. § 1029(b)(2).3 

Counts Two through Ten charged Turcks with access device fraud in 

violation of 18 U.S.C. § 1029(a)(2).4 Counts Eleven through 

Nineteen charged Turcks with bank fraud in violation of 18 U.S.C. 

§ 1344.5 These charges all arose from the use of lost or stolen 

 

2. Warfield was also convicted of nineteen counts of access 

device fraud but did not appeal. Opinion of the District Court, 

Nov. 20, 1992, p. 1. 

3. Section 1029(b)(2) provides as follows: 

 Whoever is a party to a conspiracy of two or more persons to 

commit an offense under subsection (a) of this section, if 

any of the parties engages in any conduct in furtherance of 

such offense, shall be fined an amount not greater than the 

amount provided as the maximum fine for such offender under 

subsection (c) of this section or imprisoned not longer than 

one-half the period provided as the maximum imprisonment for 

such offense under subsection (c) of this section, or both. 

4. Section 1029 provides as follows: 

 (a) Whoever-- 

 (2) knowingly and with intent to defraud traffics in or 

uses one or more unauthorized access devices during any oneyear period, and by such conduct obtains anything of value 

aggregating $1,000 or more during that period; . . . 

 shall, if the offense affects foreign or interstate 

commerce, be punished as provided in subsection (c) of this 

section. 

5. Section 1344 provides as follows: 
credit cards to consummate fraudulent retail sales between 

February 1989 and February 1990. 

 At trial, the government adduced evidence that, in the 

operation of the Lansdowne Video store, lost or stolen credit 

cards were fraudulently used to complete purported retail sales. 

In the thirteen months prior to January 1989, Lansdowne Video had 

recorded $6,394.00 in credit card sales. In the thirteen months 

following January 1989, Lansdowne Video recorded $97,794.08 in 

credit card sales. Only Turcks and Warfield had access to the 

store's credit card processing machines and at least one of them 

was present whenever the store was open. 

 A handwriting expert testified, using handwriting exemplars, 

that Turcks had probably signed four of the invalid credit card 

sales slips which were charged to four separate credit card 

accounts. The government had placed in evidence the fraudulent 

credit card slips and the handwriting exemplars from both 

defendants. 

(..continued) 

 Whoever knowingly executes, or attempts to execute, a scheme 

or artifice-- 

 (1) to defraud a financial institution; or 

 (2) to obtain any of the moneys, funds, credits, 

assets, securities, or other property owned by, or 

under the custody or control of, a financial 

institution, by means of false or fraudulent pretenses, 

representations, or promises; 

shall be fined not more than $1,000,000 or imprisoned not more 

than 30 years, or both. 
 When defendants opened their credit card merchant account, 

they agreed to process each customer's card through an 

authorization device and to comply with any instructions or 

authorizations received. Bank records demonstrated that numerous 

transactions initiated at Lansdowne Video were rejected with 

instructions to call the bank but no calls were ever made. 

Indeed, in many instances, cards were "worked" or processed 

seeking lesser and lesser amounts in an attempt to obtain an 

authorization despite prior denials. 

 The credit slips derived from these fraudulent transactions 

were deposited in Lansdowne's merchant banking account at Mellon 

Bank. Turcks signed many of the deposit slips which reflected 

the deposit of fraudulent credit slips. 

 By means of these fraudulent procedures, Lansdowne Video 

generated $102,137.99 in illegal credit card transactions. 

Apparently however some of the credit card transactions were 

never processed to completion. This circumstance may have given 

rise to the probation department's subsequent reduction in the 

calculation of the loss. 

 At the close of the trial, the district court, without 

objection, charged the jury on the substantive counts of the 

indictment as follows: 

A person may be guilty of a crime on one or more of 

three different bases. First, a person is guilty if 

the person himself or herself committed the crime, that 

is actually perpetrated the crime. Second, a person is 

guilty as a co-conspirator if the person was a member 

of the conspiracy when the crime was committed, and if 

it was committed in furtherance of or as a foreseeable 

consequence of the conspiracy. Third, a person is 

guilty of a crime committed by someone else if the 
person aids and abets the commission of the 

crime. . . . 

 If any one or more of these three bases is shown 

by the evidence beyond a reasonable doubt, that is that 

the person was the actual perpetrator of the crime, 

that the person was responsible as a co-conspirator, or 

that the person was an aider or abetter, the person may 

be found guilty of the crime charged. 

App. 46a-47a. The jury convicted Turcks on all nineteen counts 

in a general verdict. 

 At a March 4, 1993 hearing, the district court sentenced 

Turcks to twenty-five months imprisonment from a range of twentyone to twenty-seven months, followed by three years supervised 

release. Despite indications that Turcks was insolvent, the 

district court, without determining the extent of his financial 

ability to pay or his future needs, ordered Turcks to pay 

$102,137.99 in restitution to the defrauded banks. The 

$102,137.99 figure was derived from the presentence report. The 

district court did not make findings reflecting the basis for 

this amount, or to whom the monies should be paid, or the 

relationship between the restitution imposed and the loss caused 

by Turcks' conduct. The district court also ordered Turcks to 

pay $950 in Special Assessments. 

 Despite the district court's oral sentence, the judgment 

that was entered thereafter ordered Turcks to pay only $85,835.99 

to twenty-one named banks and attributed the entire amount of the 

restitution order to Count Two. The $16,298 difference between 

the amount initially ordered by the district court and the amount 
recorded in the written judgment apparently resulted from later 

calculations made by the probation department. 

 Turcks filed an untimely appeal, but sought and received an 

order finding excusable neglect under Federal Rule of Appellate 

Procedure 4(b). 

II 

 Turcks challenges the jury instructions given by the 

district court. He contends that the district court erroneously 

charged the elements of co-conspirator liability under Pinkerton 

v. United States, 328 U.S. 640 (1946), and that, as a result, the 

jury convicted him improperly. 

A. 

 Because Turcks did not object to the challenged instruction, 

we will reverse only if we find "plain error." Fed. R. Crim. P. 

Rule 52(b)6; United States v. Retos, 25 F.3d 1220, 1228 (3d Cir. 

1994). The Supreme Court has stated that, "[i]t is the rare case 

in which an improper instruction will justify reversal of a 

criminal conviction when no objection has been made in the trial 

court." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). 

 For "plain error" to exist: 

There must be an "error" that is "plain" and that 

"affect[s] substantial rights." Moreover, Rule 52(b) 

 

6. Rule 52(b) reads as follows: 

 Plain Error. Plain errors or defects affecting substantial 

rights may be noticed although they were not brought to the 

attention of the court. 
leaves the decision to correct the forfeited error 

within the sound discretion of the Court of Appeals, 

and the court should not exercise that discretion 

unless the error "seriously affect[s] the fairness , 

integrity or public reputation of the judicial 

proceedings." 

United States v. Olano, __ U.S. __, __, 113 S. Ct. 1770, 1776 

(1993) (quoting United States v. Young, 470 U.S. 1, 15 (1985)). 

 A deviation from a legal rule is error. Olano, 113 S. Ct. 

at 1777. A "plain" error is "clear" or "obvious." Id. In most 

cases, an error will be deemed to have "affected substantial 

rights" where it is prejudicial. Prejudicial error, affecting 

substantial rights, must have "affected the outcome of the 

District Court proceedings." Id. at 1778. 

 When these elements are met, "the Court of Appeals has 

authority to order correction, but is not required to do so." 

Id. We will exercise our discretion "where the defendant is 

actually innocent, or where, regardless of the defendant's 

innocence or guilt, the error `seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.'" United 

States v. Retos, 25 F.3d 1220, 1229 (quoting Olano, 113 S. Ct. at 

1779). 

B. 

 The government concedes that the district court's 

instruction was erroneous and obvious. Under Pinkerton v. United 

States, 328 U.S. 640 (1946), and pursuant to our jurisprudence, a 

jury must find that a party to the conspiracy committed a crime 

both "in furtherance of" and "as a foreseeable consequence of" 
the conspiracy to find a co-conspirator guilty of a substantive 

offense committed by a co-conspirator. Id. at 646; United States 

v. Gonzales, 918 F.2d 1129, 1135-36 (3d Cir. 1990), cert. denied, 

111 S. Ct. 1637 (1991). Thus, the district court should have 

charged the jury in the conjunctive rather than the disjunctive, 

using "and" instead of "or" in its instruction. As noted 

earlier, the district court charged "a person is guilty as a coconspirator for the crimes committed by another co-conspirator if 

the person was a member of the conspiracy when the crime was 

committed, and it was committed in furtherance of or as a 

foreseeable consequence of the conspiracy." App. 46a (emphasis 

added). By charging in the disjunctive, the district court 

clearly erred. Therefore, the first two elements of "plain 

error" are met. We turn then to the third element of the "plain 

error" analysis -- prejudice. 

 We conclude that Turcks was not prejudiced by this error. 

Prejudice results if the error "affected the outcome of the 

District Court proceedings." Olano, 113 S. Ct. at 1778. The 

inquiry concerning prejudice on "plain error" review is similar 

to our inquiry into harmless error with the important difference 

that the defendant, rather than the government, bears the burden 

of persuasion in a "plain error" analysis. Id. 

 In harmless error analysis, where the burden rests on the 

government, we reverse unless the government can show "beyond a 

reasonable doubt that the error complained of did not contribute 

to the verdict obtained." Chapman v. California, 386 U.S. 18, 24 

(1967). "To say that an error did not contribute to the verdict 
is . . . to find that error unimportant in relation to everything 

else the jury considered on the issue in question as revealed in 

the record." Yates v. Evatt, -- U.S. --, --, 111 S. Ct. 1884, 

1893 (1991). "The inquiry . . . is not whether, in a trial that 

occurred without error, a guilty verdict would surely have been 

rendered, but whether the guilty verdict actually rendered in 

this trial was surely unattributable to the error." Sullivan v. 

Louisiana, -- U.S. --, --, 113 S. Ct. 2078, 2081 (1993) (emphasis 

in original). 

 Because the burden of establishing prejudice is a burden 

that Turcks bears, we will reverse only if Turcks can show that 

the erroneous charge actually affected the jury's verdict in his 

case. See United States v. Retos, 25 F.3d at 1232. To meet 

his burden, Turcks argues that the jury could have considered the 

evidence implicating him in the conspiracy and found him guilty 

of conspiracy. Turcks then contends that the jury could have 

proceeded to analyze his guilt on the substantive offenses based 

on the district court's erroneous instruction that permitted his 

conviction on proof of either "furtherance" or "foreseeability" 

but not both. Turcks cites Griffin v. United States, 502 U.S. --

, 112 S. Ct. 466 (1991), for the proposition that the possibility 

that the jury rested its general verdict on the one improper 

theory among multiple proper theories requires reversal. 

 In Griffin, however, reversal was sought because the 

evidence did not support one of the two theories presented to the 

jury in the charge. Id. at 468. The Court rejected Griffin's 

assertion that where the jury is given two alternative grounds 
for conviction and the evidence is insufficient to support one 

ground, the error cannot be harmless. Id. at 474. In doing so, 

however, the Court continued to acknowledge the principle that an 

error in defining the law that applies to one of multiple 

theories (the "impossible to tell" concept), as distinct from a 

challenge based on insufficient evidence, requires reversal of a 

general verdict conviction. Id. at 470-71, 474; see also Yates 

v. United States, 354 U.S. 298 (1957). 

 Neither Yates nor Griffin, however, were premised on a 

"plain error" analysis--the analysis we must employ on this 

appeal. Under "plain error," the burden that the defendant must 

meet to satisfy the "prejudice" requirement is to show that the 

outcome of his trial was actually affected. Olano, 113 S. Ct. at 

1778. 

 The Seventh Circuit recently discussed the relationship 

between harmless error and "plain error" in the context of jury 

instructions in United States v. McKinney, 954 F.2d 471 (7th 

Cir.), cert. denied, 113 S. Ct. 662 (1992). At McKinney's trial 

for conspiracy, the court instructed the jury that any one of 

four possible overt acts could justify a conviction for 

conspiracy. One of the instructed acts was not a proper ground 

for a conspiracy conviction. Id. at 474-75. While the court 

recognized that instructing on the improper ground was not 

"harmless error," it also concluded that it was not "plain error" 

because McKinney was unable to show that the jury convicted him 

based on the improperly instructed element: 
Where an alleged error is deemed to violate the 

Constitution (as in this case), an error is harmless 

only if the appellate court can find that it was 

harmless beyond a reasonable doubt . . . . Moreover, 

the government must demonstrate that the error was 

harmless; a defendant need not affirmatively show harm. 

Plain error, on the other hand, is an error so grievous 

that it caused an actual miscarriage of justice, which 

implies that the defendant probably would not have been 

convicted absent the error. 

Id. at 475-76 (citations omitted). The court held, "it is not 

probable that the jury convicted McKinney solely on the basis of 

the fourth [improper] alleged overt act. Thus, submitting that 

act to the jury was not plain error." Id. at 477. 

 Turcks has not shown us that the jury likely convicted him 

of access device fraud on the basis of the erroneous Pinkerton

charge. The jury heard the Pinkerton charge only once. It did 

not have a copy of the charge in the jury room. The government 

did not discuss Pinkerton liability in its summation. Nor did 

Turcks' counsel, in his summation, discuss co-conspirator 

liability. Moreover, as we have related earlier, the error 

giving rise to this issue on appeal stemmed from the unfortunate 

use of one word: "or" instead of "and," in a lengthy, otherwise 

unassailable, charge. There is little question in our minds but 

that if counsel had called the district court's attention to what 

we perceive as no more than an inadvertent mistake, the district 

court would have promptly cured its error. 

 Further, the weight of the evidence presented at trial 

established that Turcks committed the offenses charged and that 

he aided and abetted Warfield's illegal use of the credit cards. 

Only Turcks and Warfield were trained and authorized to accept 
credit cards. The fraudulent credit slips bore two different 

styles of handwriting. Through the use of handwriting exemplars, 

a government expert testified that Turcks had probably forged the 

signatures of four cardholders. The jury was then given the 

exemplars to compare with the forged credit slips. In addition, 

the record reveals that Turcks was present in the video store 

when lost or stolen credit cards were processed and that Turcks 

prepared and signed bank merchant deposits by which Lansdowne 

Video received credit for the fraudulent charges. 

 We are satisfied that the government produced ample evidence 

that Turcks was intimately involved in the fraudulent scheme. In 

light of this record, we conclude that it is highly unlikely that 

the jury convicted Turcks of the substantive offenses solely on 

the basis of the erroneous Pinkerton charge. Because we conclude 

that Turcks cannot show that the charge, in the manner given, 

affected Turcks' conviction on the substantive charges, we may 

not consider whether to exercise our discretion. We therefore 

hold that the erroneous instruction did not constitute "plain 

error." 
III 

 Turcks next argues that the nine counts of credit card fraud 

under 18 U.S.C. § 1029(a)(2) merge into one count under the 

statute. He did not raise this objection in the district court 

and so we again review for "plain error." We reject Turcks' 

argument. 

 Turcks' argument is based on the language of 18 U.S.C. 

§ 1029(a)(2) which reads as follows: 

(a) Whoever-- 

 (2) knowingly and with intent to defraud traffics in 

or uses one or more unauthorized access devices 

during any one-year period, and by such conduct 

obtains anything of value aggregating $1,000 or more 

during that period; 

shall if the offense affects interstate or foreign commerce, 

be punished as provided in subsection (c) of this section. 

 Turcks contends that because the statute applies to the use 

of "one or more unauthorized devices . . . aggregating $1,000 or 

more" during a one-year period, the government may only convict 

him of one offense no matter how many credit cards or how much 

"value" over $1,000 was obtained by him. He argues, in the 

alternative, that either the statutory language plainly permits 

only one conviction or that the rule of lenity requires that we 

construe the statute in his favor to permit only one conviction.7

 

7. Turcks claims in his brief on appeal that all of the illegal 

uses of the credit cards constitute a single aggravated offense 

and therefore Counts Two through Ten should have merged for 

purposes of sentencing. He claims that the sentences imposed on 

Counts Three through Ten should be vacated and the separate 

Special Assessments on those Counts abated (Brief of Appellant p. 

13). At oral argument, Turcks' counsel acknowledged that 

pursuant to the Sentencing Guidelines, Turcks' sentence on the 
 When read in the context of its legislative history, we hold 

that the statute permits multiple prosecutions whenever the 

defendant's course of conduct exceeds the relevant jurisdictional 

minima. Section 1029's predecessor was the Truth in Lending Act, 

15 U.S.C. § 1644(a).8 H. Rep. No. 98-894, 98 Cong., 2d Sess. 5, 

reprinted in 1984 U. S. Code Cong. & Admin. News 3691. Prior to 

the enactment of § 1029, § 1644 was the principal federal statute 

used to prosecute credit card fraud. A reading of the two 

statutes demonstrates their similarity. Section 1644 punishes: 

Whoever knowingly . . . uses . . . any . . . 

fraudulently obtained credit card to obtain 

. . . anything else of value which within any one-year 

period has a value aggregating $1,000 or more. 

Section 1029(a)(2) punishes: 

Whoever knowingly and with intent to defraud . . . uses 

one or more unauthorized access devices during any oneyear period, and . . . obtains anything of value 

aggregating $1,000 or more. 

(..continued) 

substantive counts would have been the same had the counts merged 

because the Guidelines compute the sentence based on the total 

monies lost not on the total number of counts charged. See

U.S.S.G. § 2F1.1. We therefore understand that the only 

additional penalties imposed on Turcks as a result of Turcks 

having been charged with nine counts were the eight additional 

Special Assessments of fifty dollars for each additional count. 

8. 15 U.S.C. § 1644(a) provides as follows: 

Whoever knowingly in a transaction affecting interstate 

or foreign commerce, uses or attempts or conspires to 

use any counterfeit, fictitious, altered, forged, lost, 

stolen, or fraudulently obtained credit card to obtain 

money, goods, services, or anything else of value which 

within any one-year period has a value aggregating 

$1,000 or more . . . . shall be fined not more than 

$10,000 or imprisoned not more than ten years, or both. 
 With the exception of the phrase "one or more unauthorized 

access devices" found in § 1029(a)(2), the statutes are virtually 

identical.9 Hence, judicial interpretation of the Truth in 

Lending Act (§ 1644) provides instruction for the interpretation 

of the access device fraud act (§ 1029) with which we are 

concerned here. 

 As we read the legislative history regarding the progression 

from the Truth in Lending Act to the access device fraud act and 

as we understand the cases decided under the Truth in Lending 

Act,10 it is evident that Congress intended by the passage of 

§ 1029 to combat a dramatic increase in credit card fraud. S. 

Rep. No. 98-368, 98th Cong., 2d Sess. 2 & H. Rep. No. 98-894, 

98th Cong., 2d Sess. 5, reprinted in 1984 U.S. Code Cong. & 

 

9. In one Congressional committee report, the committee noted 

that the $1,000 or more requirement "conforms with the threshold 

for certain offenses under the Truth in Lending Act." H. Rep. 

98-984, 98th Cong., 2d Sess. 17, reprinted in 1984 U. S. Code 

Cong. & Admin. News 3703. 

10. Those courts which have interpreted the Truth in Lending Act 

(§ 1644) have interpreted the term "$1,000 or more" and the term 

"one year period," which appear in both § 1644 and § 1029, to 

permit more than one conviction each time the defendant's 

fraudulent conduct resulted in a gain which equaled or exceeded 

$1,000 in a one year period. United States v. Abod, 770 F.2d 

1293, 1296-97 (5th Cir. 1985) (rejecting defendant's argument 

that he could not be convicted of three counts for using the same 

card to obtain over $3,000 in value); United States v. Mikelberg, 

517 F.2d 246, 252 (5th Cir. 1975) (rejecting defendant's 

contention that the government could not aggregate multiple 

transactions to meet the jurisdictional requirement), cert. 

denied, 424 U.S. 909 (1976); see also United States v. Helgesen, 

669 F.2d 69 (2d Cir. 1982) (accepting multiple convictions 

without discussion), cert. denied, 456 U.S. 929 (1982). These 

cases which interpret the term "$1,000 or more" in § 1644 to 

permit multiple convictions are thus instructive of the proper 

interpretation of the term "one or more" in § 1029(a)(2). 
Admin. News 3648, 3691-92. In particular, Congress added the 

phrase "one or more unauthorized access devices" in § 1029(a)(2) 

to close a loophole that appeared in § 1644. The Truth in 

Lending Act (§ 1644) had required that $1,000 fraudulently be 

obtained by the use of each individual card. Thus, the Act was 

not violated if ten individual cards were used to defraud each 

true owner of $900 per card, even though the total thus acquired 

by the defrauder was $9,000, an amount which exceeded the $1,000 

threshold. 

 The legislative history of § 1029 reveals that criminal 

syndicates were therefore using unauthorized credit cards to 

charge just up to, but not beyond, the jurisdictional amount. 

Id. By inserting the "one or more" language in § 1029, Congress 

enabled the federal government to prosecute these crime rings. 

Id at 3691. Although the specific legislative action enabled 

prosecutors to aggregated unauthorized uses, we glean no 

indication from the legislative history that Congress intended 

that the "one or more" language used in § 1029 limit the 

government's ability to charge violators with more than one 

count. Indeed, the insertion of the "one or more" language 

evidences Congress' intent to buttress enforcement of § 1029, an 

intent that would be betrayed by a reading that allowed charging 

on only one count in any one-year period. 

 We are not persuaded by Turcks that a major offender who 

uses hundreds of stolen credit cards to obtain millions of 

dollars may be charged with only one count of violating 

§ 1029(a)(2), yet that is the conclusion we would have to draw 
from Turcks' interpretation and reading of § 1029(a)(2). In 

holding otherwise, we join those courts which have earlier 

considered this question and held, as we hold now, that separate 

violations of § 1029 whereby $1,000 or more is acquired in a oneyear period, using one or more credit cards, may be charged in 

multiple counts. United States v. Iredia, 866 F.2d 114, 120 (5th 

Cir.), cert. denied, 492 U.S. 921 (1989); United States v. 

Newman, 701 F. Supp. 184, 186-87 (D. Nev. 1988); see also United 

States v. Powell, 973 F.2d 885 (10th Cir. 1992) (affirming a 

multiple count conviction without comment), cert. denied, 113 S. 

Ct. 1598 (1993); United States v. Ryan, 894 F.2d 355 (10th Cir. 

1990) (same). This conclusion is consistent with the 

Congressional purpose in enacting § 1029. 

 Finally, we observe that our holding does not run afoul of 

the rule of lenity. The rule of lenity "demands resolution of 

ambiguities in criminal statutes in favor of the defendant." 

Hughey v. United States, 495 U.S. 411, 422 (1990). It operates 

"only after it is determined that a criminal statute is 

ambiguous, not at the beginning of the process of construction, 

'as an overriding consideration of being lenient to wrongdoers.'" 

United States v. Rodriguez, 961 F.2d 1089, 1093-94 (3d Cir. 1992) 

(quoting Chapman v. United States, 500 U.S. 453, 463 (1991)). It 

"is not to be applied where to do so would conflict with the 

implied or expressed intent of Congress." Liparota v. United 

States, 471 U.S. 419, 427 (1985). If we were to adopt Turcks' 

reading of § 1029, our holding would conflict with Congress' 

intent. Thus, the rule has no application here. 
IV 

 Turcks finally contends that the district court failed to 

make the requisite factual findings to justify the restitution 

order. While we review for "plain error" because Turcks did not 

object, we will reverse and remand for resentencing because the 

district court failed to comply with our express statement that 

such findings are essential for our review, thus prejudicing 

Turcks. Indeed, the government has conceded that resentencing 

must take place.11

 The district court ordered restitution pursuant to the 

Victim and Witness Protection Act, 18 U.S.C. § 3663-64, which 

provides in § 3664: 

The court, in determining whether to order restitution 

under section 3663 of this title and the amount of such 

restitution, shall consider the amount of the loss 

sustained by any victim as a result of the offense, the 

financial resources of the defendant, the financial 

needs and earning ability of the defendant and the 

defendant's dependents, and such other factors as the 

court deems appropriate. 

18 U.S.C. § 3664(a) (emphasis added). Consistent with the 

statute's mandate, we require that district courts make 

particular factual findings prior to ordering restitution. 

United States v. Copple, 24 F.3d 535, 549 (3d Cir.), cert. 

 

11. The government's brief recites, "The district court 

incorrectly imposed an order of restitution upon Turcks without 

making a finding on ability to pay and the case should be 

remanded for resentencing. The government agrees with Turcks 

that this case should be remanded for the district court to make 

findings on Turcks' ability to pay the restitution." (Brief of 

the Appellee p. 16). 
denied, 1994 WL 466503 (Nov. 7, 1994); United States v. Logar, 

975 F.2d 958, 961 (3d Cir. 1992); United States v. Palma, 760 

F.2d 475, 480 (3d Cir. 1985). Specifically, the district court 

must make factual findings based on the record of: 

1) the amount of loss, 2) the defendant's ability to 

pay and the financial need of the defendant and the 

defendant's dependents, and 3) the relationship between 

the restitution imposed and the loss caused by the 

defendant's conduct. We also [hold] that, 

notwithstanding estimates of loss in a presentence 

report, the district court judge must point to the 

evidence in the record supporting the calculation of 

loss to the victims. 

Copple, 24 F.3d at 549-50 (citing Logar, 975 F.2d at 961-62). 

 At the sentencing hearing, the district court orally ordered 

Turcks to pay $102,137.99. No findings were made. Among other 

things, the district court failed to find to whom the payments 

should be made, and in what amount, and failed to make any 

finding regarding Turcks' ability to pay. These omissions amount 

to clear error. 

 Turcks also contends, citing United States v. Hughey, 495 

U.S. 411 (1990), that the district court erred by assigning all 

of the restitution he was ordered to pay to Count Two despite the 

fact that the total amount that Turcks obtained through use of 

the credit cards was the subject of nineteen convictions. Hughey

involved a defendant who pled guilty only to Count Four of a six 

count indictment but was ordered to pay restitution for losses 

that resulted from relevant conduct as to which he did not plead 

guilty. Id. at 413-14. The Supreme Court held that Hughey could 
only be ordered to pay restitution for the conduct charged in 

Count Four. Id. at 422.12

 The jury convicted Turcks on all nineteen counts in the 

indictment. He has not alleged that the restitution award was 

derived from conduct that was not charged in a count in the 

indictment. Accordingly, Hughey does not apply to Turcks' 

situation. 

 With regard to the restitution award, Turcks has met his 

burden of showing prejudice. After the sentencing hearing, the 

$102,137.99 restitution figure, which the district court 

announced orally at sentencing, was reduced to $85,835.99 in the 

subsequently entered written judgment based on further 

calculations by the probation department. Turcks has called our 

attention to the district court's uncertainty as to his ability 

to pay. The district court ordered Turcks to pay the restitution 

award starting immediately (Turcks was sentenced on March 4, 

1993) but stated that he need only pay the $950 in Special 

 

12. Since Hughey was filed, Congress enacted legislation 

addressing the rule of Hughey. That legislation has no relevance 

here where Turcks' did not plead guilty but was convicted on all 

counts of the indictment. Pub. L. No. 101-647, tit. XXV § 2509, 

tit. XXXV § 3595 (1990). One amendment to 18 U.S.C. § 3663 

permits a court to order restitution for conduct to which the 

defendant did not plead guilty "to the extent agreed to by the 

parties in a plea agreement." 18 U.S.C. § 3663(a)(3); see United 

States v. Jewett, 978 F.2d 248, 253 (6th Cir. 1992). The second 

amendment defines "victim" under crimes involving a pattern of 

criminal activity as "any person directly harmed by the 

defendant's criminal conduct in the course of the scheme." 18 

U.S.C. § 3663(a)(2); see Jewett, 978 F.2d at 252. As we later 

hold in text, because the jury convicted Turcks of every offense 

with which the government charged him, neither Hughey nor the 

recent legislative amendments are applicable here. 
Assessments "as soon as Mr. Turcks can do so." App. 70a. This 

circumstance, the discrepancy in the restitution ordered, and the 

failure to make other required factual findings cause us to 

conclude that Turcks' sentence was prejudicially affected by the 

district court's restitution order. 

 We are vested with discretion in concluding that "plain 

error" occurred. Olano, 113 S. Ct. at 1778. Here it is evident 

that the district court's failure to comply with our requirements 

of fact-finding seriously affected Turcks' sentence in as far as 

the restitution order is concerned. It may be that on remand, 

when the district court makes the findings that are mandated by 

our precedents, the district court may determine that the same 

restitution heretofore imposed on Turcks should be reimposed, 

providing that the facts found support such an order. On the 

other hand, the findings which the district court makes may lead 

to a different restitution order. It will be for the district 

court to resentence in its discretion based on the findings which 

it makes. In this respect, the district court may desire to take 

additional testimony or it may, it if deems the record 

sufficient, make such findings from the record as it now exists. 
V 

 Thus, we affirm Turcks' conviction on the nineteen counts in 

the indictment. We will reverse and remand for a redetermination 

of the restitution order in a manner consistent with this 

opinion.