1 United States Court of Appeals

Fifth Circuit



## FILED

March 10, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 03-30219

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHNNY LEROY ADAMS, also known as AJ,

Defendant-Appellant.

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Appeals from the United States District Court

For the Western District of Louisiana

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Before GARWOOD, JOLLY, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

This appeal, challenging an order of restitution under the Mandatory Victims Restitution Act

(“MVRA”), 18 U.S.C. § 3663A (2000), requir es us to define the scope of the fraudulent scheme

underlying a defendant’s fraud conviction. We hold that when a defendant pleads guilty to fraud, the

sc o pe o f the requisite scheme to defraud, for restitution purposes, is defined by the mutual

understanding of the parties rather than the strict letter of the c harging document. Because the

defendant’s conviction was derived from a guilty plea, and because the restitution exceeded the scope

of the fraudulent scheme as mutually understood by the parties, we VACATE the restitution order2

of the district court, and REMAND for resentencing in accordance with this opinion.

I. FACTS AND PROCEEDINGS

Johnny LeRoy Adams (“Adams”) and fifteen co-defendants were charged in a fifteen-count

indictment with conspiracy to commit mail fraud, wire fraud, and interstate carrier fraud. 18 U.S.C.

§§ 371, 1341, 1343 (2000). Count 1 describes the conspiracy, outlining the defendants’ broad

scheme to stage fourteen car accidents and file false insurance claims between June 1999 and March

2002; Counts 2 through 15 list the separate and overt acts performed in furtherance of the conspiracy.

Each substantive count incorporates the broad conspiracy outlined in Count 1 as the requisite scheme

to defraud. Of the fourteen substantive counts, Adams was named as a defendant in eleven.

Adams and the Government entered plea negotiations as to Counts 4 and 15. The

Government’s proposed factual basis states that Adams conspired to file two false insurance claims

in connection wit h the two staged car accidents described in Counts 4 and 15. The factual basis,

however, does not incorporate the broad conspiracy alleged in Count 1 of the indictment.

At his plea hearing, Adams refused to agree to the proposed factual basis on the grounds that

the two accidents were not staged. Adams nonetheless acknowledged that he and his co-defendants

conspired after the two accidents to aggravate the damage to the cars, and to misrepresent the facts

surrounding the accidents, for the purpose of defrauding insurance companies. The Government and

the district court found that Adams’s version of the fraudulent scheme was sufficient to support his

fraud conviction under 18 U.S.C. § 1341. The factual basis was revised accordingly, and Adams

entered a plea of guilty.

The Presentence Investigation Report (“PSR”) recommended that Adams pay restitution for3

$213,000 on the grounds that he participated in the broad fraudulent scheme outlined in Count 1.

Adams, however, objected that the restitution order should not exceed $34,833

– the amount of harm

caused by the narrow fraudulent scheme outlined in the factual basis. The district court overruled

Adams’s objection, disregarded the PSR recommendation, and ordered restitution for $170,312.31,

reflecting the loss resulting from the twelve counts which named Adams as a defendant. Adams

t imely appeals, asserting that th e rest itution order exceeds the district court’s authority under the

MVRA, 18 U.S.C. § 3663A.

II. STANDARD OF REVIEW

“Restitution under t he MVRA is a criminal penalty and a component of the defendant’s

sentence.” United States v. Chaney , 964 F.2d 437, 451 (5th Cir. 1992). When the legality of a

restitution order is questioned, we review that award de novo. United States v. Cothran , 302 F.3d

279, 288 (5th Cir. 2002). “Once we have determined that an award of restitution is permitted by the

appropriate law, we review the propriety of a particular award for an abuse of discretion.” United

States v. Hughey

, 147 F.3d 423, 436 (5th Cir. 1998). We therefore review d e novo whether the

restitution order is permissible under the MVRA.

III. DISCUSSION

The MVRA authorizes a district court to order restitution to vi ct ims of certain offenses,

including mail fraud. 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). It defines “victim” as “a person directly

and proximately harmed as a re sult o f t he commission of an offense for which restitution may be

o rdered including, in the case of an offense that involves as an element a scheme . . . , any perso n

directly harme d by t he defendant’s criminal conduct in the course of the scheme.” 18 U.S.C. §4

3663A(a)(2). A defendant sentenced under the MVRA is only responsible to pay restitution for the

conduct un derlying the offense for which he has been convicted. U nited States v. Mancillas

, 172

F.3d 341, 343 (5th Cir. 1999) (stating that the purpose of the MVRA is to “restrict[ ] the award of

restitution to the limit s of the offense”). “[W]here a fraudulent scheme is an element of the

conviction, the court may award restitution for ‘actions pursuan t to that schem e.’” Cothran

, 302

F.3d at 289 (quoting U

nited States v. Stouffer

, 986 F.2d 916, 928 (5th Cir. 1993)). Our review of

the restitution order therefore compels us to define the scope of the scheme underlying Adams’s fraud

conviction.

A. Defining the Scope of a Scheme to Defraud

The Government contends that the scope of Adams’s scheme to defraud is defined by the

strict letter of the indictment. It poi nts out that the two counts of convi cti on, Counts 4 and 15,

expressly incorporate the broad scheme alleged in Count 1. It is well est ablished that, when a

defendant is convicted of fraud by a jury verdict

, the underlying scheme to defraud is defined, in large

part, by the actions alleged in the charging document. See United States v. Hughey, 147 F.3d 423,

438 (5th Cir. 1998) (holding that the scheme to defraud supporting a jury’s fraud conviction is limit ed

to the temporal scope of the counts of conviction); United States v. Pepper

, 51 F.3d 469, 473 (5th

Cir. 1995) (restricting the scope of the scheme to defraud after a jury verdict to the dates and

methods outlined in the counts of conviction); Stouffer

, 986 F.2d at 928-29 (holding that restitution

following a guilty verdict should reflect the temporal scope described in the count of conviction).

When a defendant is convicted of fraud pursuant to a plea agreement , however, this Court

looks beyond the charging document, and defines the underlying scheme by referring to the mutual5

understanding of the parties. See United States v. Cothran , 302 F.3d 279, 289-90 (5th Cir. 2002);

United States v. Arnold , 947 F.2d 1236, 1238 (5th Cir. 1991). In A rnold

, the defendant’s count of

conviction charged that he caused $23,000 to be wire-transferred as part of a fraudulent scheme. I d.

at 1237. The district court nonetheless ordered Arnold to pay $669,390 in rest it ut io n for his

involvement in a conspiracy not alleged in the count of conviction. Id. This Court affirmed on the

grounds that the “context” of Arnold’s guilty plea evinced the parties’ mutual understanding that the

defendant’s scheme was broader than that alleged in the charging document. I d. at 1238 (determining

the context of the plea from the language of the plea agreement and the parties’ statements during

the plea and sentencing hearings).

In Cothran

, we similarly looked b eyo nd t he charging document to define the scope of a

fraudulent scheme, observing that “[t]he bill of information is not our on ly source of information

about the scope of the scheme.” 302 F.3d at 289. We held that the express language of the plea

agreement indicated that the parties mutually understood that the underlying scheme was larger than

the scheme alleged in the charging document. I d. at 290 (reasoning that “that the plural word

‘victims’ and reference to ‘other computer and delivery companies’ [in the plea agreement] make

plain that this agreement goes beyond” the one victim described in the count of conviction); see also

United States v. Hensley

, 91 F.3d 274, 277 (1st Cir. 1996) (determining the scope of the scheme “by

examining the terms of the indictment and the plea agreement”); United States v. Turino , 978 F.2d

315 (7t h Cir. 1992) (reviewing the plea agreement and statements made by the parties at the plea

hearing to define the scope of the scheme to defraud).

This distinction bet ween co nvictions derived from verdicts and those derived from plea6

agreements is intuitive. When a defendant is convicted of fraud by a jury, the precise scope of his

fraudulent scheme is defined by the jury verdict. Because juries do not supplement verdict forms with

commentary, but merely state whether a defendant acted in accord with the allegations outlined in

the charging document, the scope of a fraud conviction based on a jury verdict is best deciphered, as

a practical matter, from the counts of conviction. When a defendant pleads guilty to fraud, however,

the scope of the underlying scheme is defined by the parties themselves. S ee general ly Hughey v.

United States

, 495 U.S. 411, 421, 110 S. Ct. 1979, 109 L. Ed.2d 408 (1990) (“The essence of a plea

agreement is that both the prosecution and the defense make concessions to avoid potential losses.”).

The mutual understanding reached by parties during plea negotiations is normally not detailed in the

original charging document, and is more often gleaned from any superce ding indict ments, plea

agre ement s, and statements made by the parties during plea and sentencing hearings. Because

Adams’s conviction was based on a guilty plea, we hold that the district court erred by discerning the

scope of Adams’s fraudulent scheme from the strict letter of the indictment.

B. The Mutual Understanding of the Parties

We review the indictment, the fa ct ual basis, the plea agreement, and the statements made

during the plea and sentencing hearings to determine the mutual understanding reached by Adams and

the Government regarding the scope of Adams’s scheme to defraud. Adams pleaded guilty to two

counts of a fiftee n-count indictment. Each count of conviction describes a single staged accident

followed by a single instance of fraud , and expressly incorporates the broad conspiracy alleged in

Count 1 as the underlying scheme to defraud. The counts of conviction, read by themselves, indicate

that Adams’s conviction is based on the broad scheme to defraud outlined in Count 1.7

Nonetheless, the context of Adams’s guilty plea makes clear that the parties mut ually

understood that the conviction was based on a scheme to defraud that was narrower than the scheme

outlined in Count 1. The Government’s proposed factual basis neither incorporates Count 1 of the

indictment nor references any one of the other twelve accidents allegedly staged by the defendants.

After Adams pleaded guilty to participating in the narrow scheme to aggravate damage to two cars

and to file two false insurance claims, the Government replied that it “disagree[d] with the facts but

. . . agree[d] that [Adams] has admitted enough for the Court to find him guilty . . . .” The district

court then held that Adams’s version of the factual basis was sufficient to suppor t his guilty plea,

reasoning that “[t]he distinction .

. . between what Mr. Adams agrees to and what the Government

thinks as far as the fraud is concerned, is a distinction without a difference.”

Moreover, the language of Adams’s plea agreement, and the statements of the parties during

the sentencing hearing, do not suggest in any way that Adams engaged in, or that he agreed to pay

restitution for harm caused by, a fraudulent scheme exce eding t he scope of the factual basis

supporting his guilty plea. It is therefore apparent from the context of the plea agreement that the

parties reached a mutual understanding that Adams’s conviction was based solely on his participation

in a scheme to aggravate damage to two automobiles and to file two false insurance claims.

IV. CONCLUSION

The distri ct court’s restitution order is not authorized by the MVRA because it is not

restricted to the limit s of Adams’s of fense of conviction. We vacate the order, and remand to the

district court to order restitution for the harm caused by the narrow fraudulent scheme as mutually

understood by the parties. VACATED and REMANDED.8