United States v. Zhang ( 2015 )

United States Court of Appeals
For the First Circuit
Nos. 14-1382
14-1774
UNITED STATES OF AMERICA,
Appellee,
v.
MEI JUAN ZHANG; MEI YA ZHANG,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Neil L. Fishman on brief for appellant Mei Juan Zhang.
Joanne T. Petito and Mirsky & Petito on brief for appellant
Mei Ya Zhang.
Thomas E. Delahanty II, United States Attorney, and Margaret
D. McGaughey, Assistant United States Attorney, on brief for
appellee.
June 15, 2015
LYNCH, Chief Judge. These two appeals present two
questions of first impression in this circuit: (1) whether, given
the language of the Mandatory Victim Restitution Act (MVRA), 18
U.S.C. § 3663A, the United States (through one of its agencies) is
a "victim" for purposes of the MVRA; and (2) if so, whether the
amount of restitution imposed under the MVRA should be offset by
the value of property forfeited to the Attorney General under 18
U.S.C. § 982. We hold, in agreement with every circuit to have
considered these issues, that the United States is a "victim"
within the meaning of § 3663A, and that a restitution award may
not be offset by the value of property forfeited to the Attorney
General. We affirm the restitution orders imposed by the district
court.
I.
Only those facts necessary to frame the issues are
presented. Defendants Mei Ya Zhang and Mei Juan Zhang are sisters
who each managed Chinese restaurants in Maine where undocumented
immigrants were employed. 1 Mei Juan Zhang managed a buffet
restaurant in Waterville, Maine ("the Waterville Buffet"), and
1 Mei Juan Zhang came to the United States at age 13 in
the late 1990s and worked at various relatives' restaurants until
2007, when she and her husband moved to Maine to work at the
Waterville Buffet. Mei Ya Zhang moved to the United States in
1995 and also worked at various relatives' restaurants for most of
her adult life.
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assisted in transporting the restaurant's employees back and forth
from a "safe house" in Waterville where the employees lived. She
admitted that she was responsible for hiring new employees and
that she knew some of the individuals she hired were not authorized
to work in the United States.
Similarly, Mei Ya Zhang managed a buffet restaurant in
Brewer, Maine ("the Brewer Buffet"). She admitted being
responsible for the hiring of new employees, some of whom she knew
were not authorized to work in the United States. She also was
in charge of the "Brewer Safe House" where some of the Brewer
Buffet's undocumented employees lived.
Defendants' uncle, Zi Qian Zhang, was apparently the
mastermind behind the hiring of the undocumented immigrants. At
the time defendants were charged, he was the owner of the Brewer
Buffet and the previous owner of the Waterville Buffet. He
arranged for the undocumented immigrants to be sent to the
restaurants and hired.
Defendants were charged with conspiracy to harbor and
aiding and abetting the harboring of illegal aliens for commercial
advantage and private financial gain, see 8 U.S.C.
§ 1324(a)(1)(A)(iii), (v), (B)(i); conspiracy to launder money,
see 18 U.S.C. § 1956(a), (h); and conspiracy to file false
employer's quarterly tax returns with the Internal Revenue
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Service, see 18 U.S.C. § 371. The basis of the last charge was
defendants' failure to include the cash compensation paid to the
undocumented immigrants on the restaurants' tax returns, which in
turn resulted in an underpayment of federal employment taxes to
the IRS. The charging documents for both defendants included a
notice of forfeiture pursuant to 18 U.S.C. § 982, which included
any property that derived from or was used to facilitate the
offenses. The government in fact seized $18,529.66 from two bank
accounts related to the Waterville Buffet, and the Attorney General
retained those funds as forfeiture proceeds. 2 See 18 U.S.C.
§ 982(b)(1); 21 U.S.C. § 853(g), (i).
Both defendants pled guilty to all three charged counts.
The district court sentenced Mei Ya Zhang to 15 months imprisonment
and Mei Juan Zhang to 14 months imprisonment. Both sentences
represented downward variances from the applicable guidelines
range.
At sentencing for each defendant, the district court
held that the MVRA, 18 U.S.C. § 3663A, required it to issue an
order of restitution compelling defendants to pay to the IRS the
2 See United States v. $153,066.03 in United States
Currency, No. 2:12-cv-00123-GZS (D. Me.), Compl. ¶ 2, ECF No. 1
(stating that the government seized $6,529.66 from the "Waterville
Operating Account" and $12,000 from the "Waterville Business
Account").
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taxes wrongfully withheld as a result of defendants' failure to
report the compensation paid to the undocumented workers at
defendants' restaurants. The court ordered Mei Ya Zhang and Mei
Juan Zhang to pay $88,087 and $54,288, respectively, in restitution
to the IRS. The court did not offset Mei Juan Zhang's restitution
obligation by the forfeiture proceeds that the government had
seized from the Waterville Buffet bank accounts.
II.
On appeal, both defendants argue that the district court
erred in ordering restitution because the United States is not a
"victim" for purposes of 18 U.S.C. § 3663A. Mei Juan Zhang also
argues that the district court should have offset the restitution
award by the amount of the forfeiture and that its failure to do
so resulted in "an impermissible windfall for the government." We
bypass the arguments by the government that each defendant either
waived or forfeited these arguments, and turn to the merits. Cf.
United States v. Pitrone, 115 F.3d 1, 8 (1st Cir. 1997).
A. Whether the United States is Eligible to be a "Victim"
Under the MVRA
The MVRA provides for mandatory restitution to the
victims of certain crimes, including, as relevant here, offenses
against property which are "committed by fraud or deceit." 18
U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). The statute defines "victim"
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as "a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered."
Id. § 3663A(a)(2). Defendants argue this term should not be
construed to include the United States because the Dictionary Act,
1 U.S.C. § 1, does not include the government in its definition of
"person," nor does the ordinary meaning of the word "person"
include the government. Cf. United States v. United Mine Workers
of Am., 330 U.S. 258, 275 (1947) ("In common usage that term
["person"] does not include the sovereign, and statutes employing
it will ordinarily not be construed to do so.").
This argument has been rejected by every court to have
considered it, and rightfully so. The definitions contained in
the Dictionary Act apply "unless the context [of the statute]
indicates otherwise." 1 U.S.C. § 1. Under Rowland v. California
Men's Colony, 506 U.S. 194 (1993), "context" as used in 1 U.S.C.
§ 1 "means the text of the Act of Congress surrounding the word at
issue, or the texts of other related congressional Acts."
Rowland, 506 U.S. at 199-200. And the context here indicates
unequivocally that the word "person," as used in the MVRA, includes
the government. The enforcement provision of the MVRA explicitly
recognizes the government as a possible victim. See 18 U.S.C. §
3664(i) ("In any case in which the United States is a victim, the
court shall ensure that all other victims receive full restitution
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before the United States receives any restitution." (emphasis
added)). "[N]othing indicates that Congress intended two
different meanings when it used the same word ["victim"] in §§
3663A and 3664(i) -- related provisions adopted at the same time
and codified in serial sections in the United States Code." United
States v. Ekanem, 383 F.3d 40, 43 (2d Cir. 2004); accord United
States v. Turner, 718 F.3d 226, 236 (3d Cir. 2013); United States
v. Mateos, 623 F.3d 1350, 1370 (11th Cir. 2010) (O'Connor, J.);
United States v. Senty-Haugen, 449 F.3d 862, 865 (8th Cir. 2006);
United States v. Lincoln, 277 F.3d 1112, 1113-14 (9th Cir. 2002);
see also United States v. Sánchez-Maldonado, 737 F.3d 826, 828
(1st Cir. 2013) (characterizing the FBI as a "victim" under § 3663A
on plain error review). Indeed, if we defined "victim"
differently, one wonders how § 3664(i) could ever serve any
purpose. See Duncan v. Walker, 533 U.S. 167, 174 (2001) (noting
that courts must, if possible, give meaning to every portion of a
statute).3
We join our sister circuits in holding that the United
3 Mei Juan Zhang's argument that the United States is not
an "identifiable victim," see 18 U.S.C. § 3663A(c)(1)(B)
(providing that the MVRA applies to proceedings "in which an
identifiable victim or victims has suffered a physical injury or
pecuniary loss"), fails for the same reason. Section 3664(i)
clearly contemplates that the United States and its agencies are
"identifiable."
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States may be a "victim" for purposes of the MVRA. The district
court did not err in ordering restitution to the IRS.
B. Whether a Restitution Award May Be Offset By Forfeiture
Proceeds
We start with an explanation of where forfeited monies
go, before addressing the offset question. The Attorney General
has the responsibility for disposing of funds seized under the
criminal forfeiture statute. See 18 U.S.C. § 982(b)(1) (providing
that the criminal forfeiture of property is governed by 21 U.S.C.
§ 853, which gives the Attorney General the authority to "direct
the disposition of the property by sale or any other commercially
feasible means, making due provision for the rights of any innocent
persons," id. § 853(h)). "Although the Attorney General and the
IRS are both part of the federal government, they are distinct
entities." United States v. Joseph, 743 F.3d 1350, 1356 (11th
Cir. 2014) (per curiam).
We join the analysis set forth in the Eleventh Circuit's
opinion in Joseph. There, the defendant, who, as here, had
defrauded the IRS, argued that he was entitled to an offset of his
ordered restitution amount by the value of currency seized by the
government "which were the proceeds of [his] fraud." Id. at 1352.
The Joseph court held that, under the plain language of the MVRA,
the district court had no authority to order such an offset, at
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least where there was no evidence that the victim had received the
value of the forfeited property. Id. at 1353-56 & n.4. The court
explained that "the MVRA requires a district court to 'order
restitution to each victim in the full amount of each victim's
losses as determined by the court and without consideration of the
economic circumstances of the defendant.'" Id. at 1354 (quoting
18 U.S.C. § 3664(f)(1)(A)). Moreover, a restitution order is
required "in addition to . . . any other penalty authorized by
law," id. (quoting 18 U.S.C. § 3663A(a)(1)), such as an order of
forfeiture under 18 U.S.C. § 982.
At least five other circuits have reached the same
conclusion. See United States v. Reese, 509 F. App'x 494, 500
(6th Cir. 2012); United States v. Martinez, 610 F.3d 1216, 1230-
32 (10th Cir. 2010); United States v. Taylor, 582 F.3d 558, 566-
68 (5th Cir. 2009) (per curiam); United States v. Bright, 353 F.3d
1114, 1120-23 (9th Cir. 2004); United States v. Alalade, 204 F.3d
536, 540 (4th Cir. 2000). Like the Martinez court, "[c]onvinced
by the reasoning of our sister circuits, we conclude that the plain
language of the MVRA . . . prohibits a district court from
considering the value of defendant's forfeited property in
initially determining the full amount of restitution." 610 F.3d
at 1232. No offset is appropriate, at least where, as here, the
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victim has not received any of the forfeiture proceeds.4
The district court correctly concluded that, on the
facts of this case, it was without authority to offset the
restitution Mei Juan Zhang owed by the amount seized from the
Waterville Buffet bank accounts.5
III.
We affirm.
4 We need not address whether a defendant's restitution
obligation may be offset by the value of forfeited property that
the defendant's victim has actually received, because here there
is no indication that the forfeited funds seized from the
Waterville Buffet bank accounts were disbursed to the victim, the
IRS. See Bright, 353 F.3d at 1122-23 ("[W]hatever offsets might
be due when a defendant's funds have been forfeited and paid to
the victims -- an issue we do not decide -- the MVRA provisions
above make clear that funds the victims have not received cannot
reduce or offset the amount of losses the defendant is required to
repay.").
5 This conclusion holds even assuming that Mei Juan Zhang
actually had an interest in the money held in those accounts, a
point which the government disputes.
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