United States Court of Appeals

For the First Circuit

No. 02-9004

IN RE: JOSEPH BOVA AND JANET A. BOVA

Debtors.

 

JOSEPH BOVA,

Plaintiff, Appellant,

v.

ST. VINCENT DE PAUL CORP.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES BANKRUPTCY APPELLATE PANEL

FOR THE FIRST CIRCUIT

Before

 Torruella, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Grenville Clark, III for appellant.

Paul A. Rinden for appellee.

April 22, 2003
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HOWARD, Circuit Judge. Joseph and Janet A. Bova appeal

a decision of the Bankruptcy Appellate Panel for the First Circuit

("BAP") holding that a New Hampshire state court judgment enforcing

Joseph Bova's outstanding criminal restitution obligation to the

St. Vincent De Paul Corporation was nondischargeable under Section

13 of the Bankruptcy Code. We agree that Bova's debt is not

dischargeable and, accordingly, affirm.

I.

The facts relevant to our analysis are largely

undisputed. The matter arises from Joseph Bova's embezzlement of

$104,000 from his former employer, St. Vincent De Paul, during the

1980s. The State of Illinois prosecuted Bova in Du Page County

Circuit Court, and, on May 17, 1993, Bova pleaded guilty to theft.

The sentencing court placed him on probation in lieu of prison and,

attendant to his sentence, ordered Bova to pay restitution to St.

Vincent De Paul in the amount of $104,000. 

Upon completion of Bova's probation term in 1998, the

court entered judgment for the outstanding balance on his

restitution obligation of $69,451. Thereafter, Bova ceased making

restitution payments.

Confronted with Bova's delinquency, St. Vincent De Paul

brought suit against him in New Hampshire Superior Court ("the

superior court"), seeking to enforce the Illinois restitution

order. On May 17, 2000, the New Hampshire court allowed St.
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Vincent De Paul's motion for summary judgment on the ground that,

under Illinois law, St. Vincent De Paul could enforce the criminal

restitution order in a civil proceeding. The court awarded St.

Vincent De Paul $69,451, plus costs and interest, contingent upon

its producing an attested copy of the Illinois judgment.

On July 25, 2000, Bova and his wife filed a Chapter 7

bankruptcy petition in the United States Bankruptcy Court for the

District of New Hampshire. A short time later, St. Vincent De Paul

filed an adversary action in the bankruptcy proceeding, objecting

to the discharge of the superior court judgment. In due course,

the Bovas moved to convert their case to a Chapter 13 petition, and

St. Vincent De Paul amended its complaint to bring its allegation

of nondischargeability under the Bankruptcy Code provision

appropriate for a Chapter 13 petition, 11 U.S.C. § 1328(a)(3). The

statute excepts from discharge debts "for restitution, or a

criminal fine, included in a sentence on the debtor's conviction of

a crime." Id.

The bankruptcy court subsequently awarded St. Vincent De

Paul summary judgment, holding that the debt arising from the

restitution obligation was nondischargeable under 11 U.S.C. § 1328.

The Bovas appealed this judgment to the BAP, arguing that the

Illinois judgment had expired pursuant to an Illinois statute which

allegedly established a five-year statute of limitation on criminal

restitution orders. Alternatively, the Bovas contended that the
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Illinois judgment had, by operation of Illinois law, become civil

after five years, and St. Vincent De Paul was barred by judicial

estoppel from claiming nondischargeability under § 1328(a)(3),

which pertains to criminal judgments, after previously seeking to

enforce the Illinois judgment by means of a civil judgment it filed

in New Hampshire. 

The BAP rejected the Bovas' arguments and held that the

New Hampshire state court judgment enforcing the outstanding

balance on the criminal restitution order was nondischargeable

under § 1328(a)(3). In reaching that conclusion, the BAP rejected

the argument that Illinois law contained a five-year statute of

limitations for criminal restitution judgments or transformed them

into civil judgments after five years. The BAP also rejected the

Bovas' judicial estoppel theory, finding no inconsistency in St.

Vincent De Paul's pursuit of a civil judgment to secure the unpaid

balance on an Illinois restitution order and its claim that the

order was nondischargeable. The Bovas then brought the present

appeal, in which they reiterate the arguments made below.

II.

We start with the Bovas' contention that, under Illinois

law, a criminal restitution judgment expires after five years. The

statute in question states that a sentencing court "shall fix a

period of time not in excess of 5 years within which payment of

restitution is to be paid in full." 730 Ill. Comp. Stat. 5/5-
1 The Bovas contend that once a criminal restitution order

"expires" under Illinois law, it remains enforceable as a civil

judgment.

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5/6(f) (emphasis added). The Bovas posit that this statute has the

effect of making Illinois restitution judgments effective as

criminal judgments for only five years. 

We do not read the statute as setting forth an expiration

date for criminal restitution orders. Rather, it acts to ensure

that sentencing judges do not set unduly long schedules for

satisfying restitution obligations. The Illinois courts have

rejected the Bovas' reading of the statute, People v. Harris, 319

Ill. App.3d 534, 536 (2001), and so do we.

The Bovas' alternative argument is that, under Illinois

law, Illinois restitution judgments not paid within five years lose

their "criminal" characteristics and become enforceable solely as

civil judgments. The statute states that "[a] restitution order

under this Section is a judgment lien in favor of the victim that

. . . [e]xpires in the same manner as a judgment lien created in a

civil proceeding." 730 Ill. Comp. Stat. 5/5-5/6(m)(4). The Bovas

read this statute as causing restitution judgments to shed their

criminal characteristics after five years.1 Again, their

construction of the statute is not persuasive.

While an Illinois restitution judgment operates like a

"judgment lien created in a civil proceeding," 730 Ill. Comp. Stat.

5/5-5/6(m)(4), it does not lose its criminal character through the
2 There are important differences between a criminal

restitution judgment and a civil judgment. Restitution, for

example, is only ordered attendant to a determination of guilt.

Moreover, sentencing courts have the authority to modify criminal

restitution orders. See United States v. Timilty, 148 F.3d 1,4

(1st Cir. 1998) (distinguishing restitution orders from civil

judgments).

3 In other contexts, courts of appeals have held that a

statutory civil enforcement provision does not transform a criminal

restitution order into a civil judgment. E.g., Timilty, 148 F.3d at

4; United States v. Dubose, 146 F.3d 1141, 1148 (9th Cir. 1998)

(construing Mandatory Victim Restitution Act, 18 U.S.C. §

3663A(b)(1)(B)); United States v. Brown, 744 F.2d 905, 910 (2d.

Cir. 1984)(construing Victim Witness and Protection Act, 18 U.S.C.

§§ 3579, 3580).

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passage of time. Indeed, the fact that a restitution order

"expires in the same manner" as a civil judgment lien suggests that

it is not a civil judgment.2 The statute in question provides for

a civil enforcement mechanism designed to assist crime victims in

circumstances such as these.3 

III.

Bova's restitution obligation to St. Vincent De Paul was

part of his criminal sentence. People v. Brooks, 158 Ill.2d 269,

265 (1994) (noting that "under our criminal statutes, restitution

is a sentence and a part of the sentencing scheme"). In the New

Hampshire Superior Court, St. Vincent De Paul neither pursued a new

cause of action nor attempted to litigate the facts underlying the

criminal judgment. Rather, it sought only extraterritorial

enforcement of an Illinois criminal judgment. Because we find that

St. Vincent De Paul sought only to enforce the Illinois restitution
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order in its New Hampshire action, we need say nothing further

about the Bovas' argument that judicial estoppel bars St. Vincent

De Paul from asserting that the order at issue is nondischargeable

in bankruptcy. The BAP therefore properly concluded that the New

Hampshire judgment is nondischargeable pursuant to 11 U.S.C. §

1328(a)(3).

Affirmed. Costs to appellee.