United States v. Evelyn Johnson
United States v. Evelyn Johnson
Opinion
After pleading guilty to preparing false tax returns for her clients,
Johnson contends that the amount received from the taxpayers is exculpatory material that should have been revealed under
Brady v. Maryland
,
The restitution statute, not the Constitution, determines the prosecution's duty-and the duty is one of credit against the judgment, not of disclosure during the sentencing hearing. The $79,325 figure reflects taxes still outstanding because of Johnson's fraud. But the parties disagree about whether tax collections are credited against that award.
The United States contends that
In no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution.
This is a statutory version of the collateral-source doctrine, familiar in tort law. See
Restatement (Second) of Torts
§ 920A(2). It deals with setting the base amount of restitution,
United States v. Malone
,
The United States' interpretation would bring § 3664(f)(1)(B) into conflict with § 3664(j), which does deal with credits for third-party collections:
(1) If a victim has received compensation from insurance or any other source with respect to a loss, the court shall order that restitution be paid to the person who provided or is obligated to provide the compensation, but the restitution order shall provide that all restitution of victims required by the order be paid to the victims before any restitution is paid to such a provider of compensation.
(2) Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in-
(A) any Federal civil proceeding; and
(B) any State civil proceeding, to the extent provided by the law of the State.
Section 3664(j)(1) completes the picture with respect to insurance and similar payments: these do not reduce the amount of the restitution award (per § 3664(f)(1)(B) ), and the wrongdoer must reimburse the source of those benefits. Section 3664(j)(2) covers "compensatory damages", which reduce the amount the wrongdoer pays in restitution. This is the standard joint-and-several-liability approach of tort law, which applies to collections under § 3664 too. Victims get just a single recovery. And since Johnson will receive credit against the restitution award for whatever the United States collects from the taxpayers, it was unnecessary to disclose the details of collection activities before the district judge determined the base restitution award.
Perhaps one could doubt that the collection of back taxes counts as "compensatory damages" under § 3664(j)(2), but neither
party to this appeal has taken issue with cases holding that tax collections must be credited against restitution awards in criminal prosecutions. Indeed, courts see this as such an easy question that they have treated the issue in non-precedential decisions. See
United States v. Smith
, 398 Fed. App'x 938, 941-42 (4th Cir. 2010) ;
United States v. Holland
, 141 Fed. App'x 589, 591 (9th Cir. 2005) ;
United States v. Kerekes
,
All remaining issues concern the terms of Johnson's supervised release. Before sentencing she signed a waiver of her right to have these conditions read aloud, and she now contends that this violated the Due Process Clause of the Fifth Amendment. But why? The proposed terms and conditions were included in the presentence report, which Johnson had seen. The court offered her a choice: Have these conditions read aloud as part of the sentencing or forego this right. She chose to forego it, deeming the writing adequate. We've recommended that district judges give defendants this very choice. See, e.g.,
United States v. Bloch
,
In addition to waiving the reading of these conditions, Johnson also elected not to contest the substance of any. On appeal, however, she objects to five of them. Her failure to raise any of these objections in the district court limits our review to plain error.
United States v. Poulin
,
One contested condition reads: "The defendant shall not knowingly leave the judicial district without the permission of the Court or the probation officer." Johnson calls this vague, but it isn't. "Judicial district" is a statutory term. Anyone can look up the boundaries of this district, see
Instead of dealing directly with the language of this condition, Johnson relies on
United States v. Ortiz
,
Another contested condition reads: "The defendant shall respond to all inquiries of the probation officer and follow all reasonable instructions of the probation officer." The first part of this condition comes straight from a statute,
Would Johnson think herself better off if the word were deleted and she were obliged to do whatever the probation officer said, however silly or obnoxious that command might be? Does she want to face revocation of supervised release for failing to stand on her head when commanded to do so, or hoot like an owl in a restaurant? Johnson likely wants an elaborate definition, rather than deletion of this protection, but the history of tort law shows that any effort to define "reasonable" is a fool's errand. In
United States v. Kappes
,
Johnson's remaining objections do not require separate discussion.
AFFIRMED
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Evelyn JOHNSON, Defendant-Appellant.
- Cited By
- 20 cases
- Status
- Published