United States v. Lancia , 610 F. App'x 49 ( 2015 )

12-2093
United States v. Lancia
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
15th day of May, two thousand fifteen.
PRESENT:
JOHN M. WALKER, JR.,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee-Cross-Appellant,
v. 12-2093
DAVID KINNEY, MICHAEL RUSSO, MELISSA
VALENTIN, MICHAEL HODGES, JANE
SOULLIERE, MARIA LOGAN, STACEY
PETRO,
Defendants,
MAURIZIO LANCIA,
Defendant-Cross-Appellee,
YUNIO GONZALEZ, ANGEL URENA,
Defendants-Appellants.
_____________________________________
FOR CROSS-APPELLANT: MICHAEL McGARRY, Assistant United States
Attorney (Sandra S. Glover and David T. Huang,
Assistant United States Attorneys, on the brief), for
Deirdre M. Daly, United States Attorney, District of
Connecticut, New Haven, Connecticut.
FOR CROSS-APPELLEE: BRUCE R. BRYAN, Syracuse, New York.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Alfred V. Covello, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is VACATED and REMANDED for further
proceedings.
Defendant-cross-appellee Maurizio Lancia was indicted on multiple charges of
conspiracy, mail fraud, and wire fraud based on his alleged participation in a broad-ranging
mortgage fraud scheme between 2004 and 2007. After Lancia pleaded guilty to one count of
wire fraud in violation of 18 U.S.C. § 1343, which charged him with executing the fraudulent
scheme by inducing a wire transfer related to one particular fraudulent mortgage application, the
district court ordered Lancia to pay restitution for only the loss arising from that single
transaction. The government appeals from that order, arguing that the Mandatory Victims
Restitution Act (“MVRA”), 18 U.S.C. § 3663A(a)(1)-(2), required the district court to impose
restitution for any losses arising from all conduct in which Lancia was involved in the course of
the same scheme. We assume the parties’ familiarity with the underlying facts, the procedural
history of the case, and the issues on appeal.
As a preliminary matter, Lancia contends that the government may not challenge the
district court’s restitution award both because the government waived its right to appeal the
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restitution amount and because it stipulated that Lancia’s criminal liability would be limited to
the single count to which he pleaded guilty. We find neither argument persuasive.
First, Lancia argues that the waiver provision in his plea agreement, which limits “any
challenge to the Defendant’s sentence that is not foreclosed by this provision . . . to that portion
of the sentencing calculation that is inconsistent with (or not addressed by) this waiver,” Supp.
App’x at 71, restricts the government to challenging only the district court’s calculation of
Lancia’s guidelines range. Lancia insists that, because other sections of the plea agreement
consistently use the term “calculation” to discuss Lancia’s guidelines range rather than his
restitution payments, the phrase “sentencing calculation” implicitly refers only to his term of
imprisonment. However, our case law makes clear that restitution under the MVRA is itself
“part of [the defendant’s] sentence.” United States v. Ekanem, 383 F.3d 40, 42 (2d Cir. 2004);
see also United States v. Khan, 869 F.2d 661, 662 (2d Cir. 1989). The waiver provision in
Lancia’s plea agreement reiterates that same principle, prohibiting Lancia from appealing any
“sentence [that] does not exceed 30 months, a three year term of supervised release, . . . an order
of forfeiture, and an order of restitution.” Supp. App’x at 71. In the context of that broader
language, the plea agreement does not waive the government’s right to challenge the district
court’s restitution calculation.
Second, Lancia argues that the government stipulated that his restitution liability would
be limited to the single property referenced in his count of conviction, pointing to the portions of
the plea agreement that provide that Lancia’s guilty plea to one count of wire fraud will “satisfy
[his] federal criminal liability” for all criminal conduct charged in the underlying indictment,
Supp. App’x at 73, and that Lancia “agrees to make restitution in an amount equal to the amount
of the loss resulting from the offense of conviction,” id. at 67 (emphasis added). Lancia is
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correct that the plea agreement limits his restitution liability to losses caused by the offense of
conviction. However, the government’s argument on appeal is that, under the terms of the
MVRA, restitution for Lancia’s single count of wire fraud encompasses all losses arising from
his criminal conduct in the course of the fraudulent scheme charged in that count. The
government’s stipulation that Lancia’s criminal liability would be limited to his count of
conviction does not preclude that argument. In fact, Lancia acknowledged in his guilty plea that
he “underst[ood] that pursuant to 18 U.S.C. § 3663A restitution is payable to all victims of his
criminal conduct . . . and not merely to those victims arising from the conduct underlying the
count of conviction to which he agree[d] to plead guilty.” Supp. App’x at 67.
As to the merits of the government’s challenge, the MVRA explicitly defines a victim
entitled to restitution as
a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered
including, in the case of an offense that involves as an element a
scheme, conspiracy, or pattern of criminal activity, any person
directly harmed by the defendant’s criminal conduct in the course of
the scheme, conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2) (emphases added).
As we have recognized, that language makes a defendant convicted of an offense
involving a criminal “scheme” liable for restitution to all persons harmed by his actions pursuant
to that scheme, even if those actions were not specifically described in the count of conviction or
even in the initial indictment. See United States v. Oladimeji, 463 F.3d 152, 158-59 (2d Cir.
2006); accord, United States v. Wright, 496 F.3d 371, 381-82 (5th Cir. 2007); United States v.
Dickerson, 370 F.3d 1330, 1341-42 (11th Cir. 2004); United States v. Hensley, 91 F.3d 274,
276-77 (1st Cir. 1996); United States v. Henoud, 81 F.3d 484, 488 (4th Cir. 1996); United States
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v. Kones, 77 F.3d 66, 69-70 (3d Cir. 1996).1 While it is well established that “the loss caused by
the conduct underlying the offense of conviction establishes the outer limits of a restitution
order,” Hughey v. United States, 495 U.S. 411, 420 (1990), § 3663A(a)(2) of the MVRA
clarifies that, where a “scheme” is alleged as part of the defendant’s offense, all actions
undertaken by the defendant pursuant to the scheme are part of the “offense of conviction” for
the purposes of restitution.
In this case, there is no dispute that wire fraud, the offense to which Lancia pleaded
guilty, includes the statutory element of a “scheme . . . to defraud.” 18 U.S.C. § 1343. And the
count to which Lancia pleaded incorporated by reference paragraphs 28 through 47 of the
indictment, which described a scheme to defraud extending beyond the transaction related to the
specific wire transmission identified in the count. The plain language of the MVRA thus
required the district court to order restitution for all losses caused by Lancia’s criminal conduct
pursuant to that scheme, including all eight fraudulent mortgage applications in which Lancia
was personally involved.
At the sentencing hearing, indeed, the district court itself endorsed this interpretation of
the MVRA, and the government’s corresponding demand for restitution, as a “legally correct
statement.” Gov’t App’x at 356. Given that acknowledgment, it is unclear why the district court
ordered Lancia to pay restitution solely for losses arising from the single mortgage application
identified in his count of conviction. If, despite its acknowledgment to the contrary, the district
1
While some of our sister Circuits’ decisions technically analyzed orders of restitution
under the Victims and Witness Protection Act (“VWPA”), 18 U.S.C. § 3663, rather than under
the MVRA, those two statutes provide identical definitions of a “victim” entitled to restitution.
Compare id. § 3663(a)(2) with id. § 3663A(a)(2). We have recognized that prior interpretations
of language used in one statute govern future interpretations of parallel provisions in the other.
United States v. Cuti, 778 F.3d 83, 94 (2d Cir. 2015).
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court believed that Lancia’s liability for restitution under the MVRA was limited to the loss
caused by the transaction related to the particular wire transmission referenced in the count, its
restitution calculation was erroneous as a matter of law.
Lancia claims, however, that the district court’s restitution order reflects a deliberate
exercise of the court’s discretion to apportion restitution among multiple co-defendants. Under
18 U.S.C. § 3664(h), where a district court ordering restitution under the MVRA “finds that
more than 1 defendant has contributed to the loss of a victim, the court may . . . apportion
liability among the defendants to reflect the level of contribution to the victim’s loss and
economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Drawing on this provision,
Lancia argues that the district court chose to limit his personal liability to a single fraudulent
application in light of what he alleges was his relatively small role in the fraudulent scheme.
Even assuming that such an apportionment would be within the district court’s discretion,
however, nothing in the record suggests that the district court intended to divide restitution
among Lancia and his co-defendants. While we have not required district courts to “explicitly
recite” the reasoning behind their restitution orders under § 3664, United States v. Nucci, 364
F.3d 419, 421 (2d Cir. 2004), the absence of any discussion of § 3664(h) during Lancia’s
sentencing hearings precludes us from inferring that the district court’s limited restitution order
in this case reflects a decision to apportion payments.
Alternatively, Lancia suggests that the district court may have declined to impose
restitution for any losses arising out of the other fraudulent applications because the government
failed to produce sufficient evidence at the sentencing hearing to establish the amount of any
such losses. Lancia argues that, although the government produced an exhibit listing the
respective property values and loan amounts associated with each fraudulent application, it
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offered no admissible evidence documenting the actual financial losses suffered by the
mortgagees. Yet while the district court did express some doubt about the admissibility of the
government’s evidence, any evidentiary deficiency applied as much to the loss calculation for
the transaction on which restitution was ordered as to the seven additional applications excluded
from the district court’s calculation. The district court’s potential evidentiary concerns about the
government’s proof of loss thus cannot explain its limited restitution order.
Accordingly, we VACATE the judgment of the district court and REMAND the case to
allow the district court to explain its restitution calculation or to impose a new restitution order
consistent with the discussion above. The district court retains discretion on remand to take
additional evidence or to refer the case for further fact-finding, as may be helpful to its
determination. See United States v. Zangari, 677 F.3d 86, 93 (2d Cir. 2012); 18 U.S.C.
§ 3664(d).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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