Professional Documents
Culture Documents
____________________
No. 96-1110
Appellee,
v.
SCOTT A. HENSLEY,
Defendant, Appellant.
____________________
____________________
Before
____________________
____________________
August 5, 1996
____________________
CYR,
CYR,
challenges
district
Circuit Judge.
Circuit Judge
______________
Defendant
Scott
Allen Hensley
by the
sion to interpret and apply the 1990 amendments to the Victim and
Witness Protection
Act ("VWPA"),
18 U.S.C.
3663-64
(1994).
I
I
BACKGROUND
BACKGROUND
__________
After
a federal
grand jury
dise under
false pretenses
indicted
him for,
among
dis-
thereby conceding
in the indict-
ment.1
On April
Hensley rented
1, 1995,
a box
under the
at Mail Boxes,
companies
in California,
New York,
alias "Robert
Etc. ("MBE"),
Halford,"
510 Common-
Jersey, and
behalf
division
Hensley
of AT&T,
remitted
for delivery
five
to the
forged checks
MBE address
via
Federal
in Boston.
Express, in
____________________
1The
wire
fraud, id.
___
ties, id.
___
U.S.C.
1341 (1994);
ties,
id.
___
2314; and
receipt of
stolen goods
transported in
2315.
amounts
logo.
ranging from
Once
the
transport the
$31,000 and
computer equipment
to
$20,000 to
bearing the
arrived, Hensley
equipment.
On
his next
visit
AT&T
used the
a U-Haul truck
to the
MBE,
After Hensley
government
learned that
acts during
facts
set forth
before sentencing,
he had committed
period.
in the presentence
the
additional fraudulent
According to
the undisputed
__________
report ("PSR"),
see United
___ ______
On
April
3,
"Noonan" placed
computer software
rent a
an
$837.86
telephone
order for
He tendered
a counter-
dishonored after he
Cre-
ative
Computers software.
BCC money
with
orders in payment
ATS Technologies
for another
("ATS"), a
computer order
credit card
placed
bill, and
a car
rental.
Although
that
the charged
conduct
resulted
Hensley reimburse
the car
rental
actual
PSR recommended
company ($500.00),
in no
the
($837.86), and
ATS ($1,026.12),
money order.
victims of
each of
which had
accepted a
the offense of
counterfeit BCC
orders.
did not
Following
briefing and oral argument, the district court found that ATS had
sustained no loss, and that neither the credit card bill nor
car rental
The
the
of conviction.
II
II
DISCUSSION
DISCUSSION
__________
ute.
The
no inherent authority
VWPA authorizes
courts
for the
restitutionary
benefit
to order
of
sentences
victims of
federal
by the
district
offenses.
As
29,
of the Crime
. restitution
to any
___
victim
______
of such
__ ____
offense."
_______
18
U.S.C.
____________________
do not purport to
to order restitution.
U.S.S.G.
Prior to the
tution to the "loss caused by the specific conduct that [was] the
________ _______
basis of
495
the offense of
U.S. 411,
413 (1990)
conviction."
Hughey v.
______
(emphasis added).
United States,
_____________
The
Hughey Court
______
on the
total loss
attributable to all
___
counts in
an indictment
by a Postal
Id. at 422.
___
underlying a
mail fraud
broader scheme to
charged and
conviction, which
requires proof of
particular mailing
scheme.
United States v.
_____________
______
______ _____________
adopted
the more
narrow and
lenient majority
Thus, we
view during
the
Cronin, 990
______
F.2d at 666.
in light
of the 1990
amendments.
Consistent with
provide that
a scheme, a
_ ______
the minority
the VWPA to
conspiracy, or a pattern of
or pattern."
18 U.S.C.
to defraud is an element of
which he
As Hensley concedes
that a scheme
to
in possession" offense
does
order
restitution
to
every
victim
pattern of criminal
of
directly
harmed
by
the
of the offense
conduct
_______
of the defendant
alleged in a
which directly
count to which
484, 488
(4th
Cir. 1996)
States v. Pepper,
harmed the
victim was
guilty, or
was
(unnamed
v.
Thus, the
______
______
outer limits of
a VWPA
3663(a)(2)
scheme, conspiracy, or
pattern of activity
See Kones,
___ _____
that
77 F.3d
1990 amendments,
he contends
that the
fraudulent order
expansiveness of the
placed
by the
Henoud, 81 F.3d at
______
the
indictment
488.
"specifically"
define the
scheme
in
order to
ensure that the restitutionary amount not exceed the harm direct-
ly
of the scheme
embraced by the
offense of
conviction, id.; see also United States v. Bennett, 943 F.2d 738,
___ ___ ____ _____________
_______
741 (7th
Cir. 1991)
cept), cert.
_____
courts of
(noting amorphous
denied, 504
______
nature of
U.S.
987 (1992).
appeals consistently
have upheld
"scheme" con-
Nevertheless,
the
restitutionary sen-
ing court to
at 489-90 n.11;
978
"mechanics . .
Henoud,
______
81 F.3d
court for
focusing on
indictment,
the 1990
e.g.,
____
the broad
"boilerplate" language
amendments to the
Turino, 978
______
F.2d at
alleged.
318-19
in the
We think
caselaw, see,
___
(discussing Seventh
Circuit
cases), preclude
to an indictment alleging
that he
false
pretenses
from
specific
computer-products
25, 1995.
Thus, the
distributors
offense
sentence
Hensley's
criminal conduct
during
the
course
of
harmed by
the
scheme
As
ative
a fallback position,
Computers software
underlying
the offense
definition
we now adopt.
viewed only
and their
purchase
of
for "abuse of
was not
conviction,
Restitution
even
part of
under
the Cre-
the scheme
the
orders normally
subsidiary factual
findings only
for "clear
broad
are re-
at 20,
error."
United States v.
______________
(victim loss);
Cir. 1995),
Savoie,
______
985
F.2d 612,
United States v.
_____________
(1st Cir.
U.S.L.W.
__
617
1993)
1503 (9th
and petition
___ ________
___
9478).
sentences cast
little light
determine whether
unitary scheme.
tion, to
on how the
sentencing court
a criminal defendant's
However, we agree
analogous
caselaw on
of a
consult the
is to
that it is useful to
duplicitous
indictments
and
variance of proof.
See,
___
(1986).
part of a
unitary scheme
to defraud,
the sentencing
ing the
and
comprised
court
785 F.2d
nature of the
victims, and
any commonality
in
its participants
timing, goals,
and modus
operandi.
Id.
___
v. Morrow,
______
39 F.3d 1228,
denied, 115 S.
______
Ct.
1328 (1995).3
We do
between
the conduct
alleged
in the
many differences
from Creative
indictment to
Computers and
permit the
district
court to rule that the former acquisition came within any alleged
unitary
supported
scheme
to
defraud.
The
evidence plainly
____________________
undisputed
launched the
by renting
defendant's fraudu-
specific scheme at
counterfeit money
were not
conviction
authority
part
of
illustrates
the scheme
the
underlying
limits upon
to order restitution
car rental
the offense
sentencing
of
court's
VWPA amendments.
and, in keeping
ing
court
the
substantial,
though
not
unbridled,
discretion
to
one another,
placing all
the fraudulent
computer-products suppliers
for
on
the
(similar victims)
goods with
within less
than
proof
orders for
counterfeit instruments.
commonality of
the
victims,
This abundance of
timing,
and modus
See Savoie,
___ ______
III
III
CONCLUSION
CONCLUSION
__________
of
must be affirmed.
AFFIRMED.
AFFIRMED
________
10