United States v. Norman H. Keith, 754 F.2d 1388 (9th Cir. 1985). · Go Syfert
United States v. Norman H. Keith, 754 F.2d 1388 (9th Cir. 1985). Cases Citing This Book View Copy Cite
112 citation events (10 in the last 25 years) across 18 distinct courts.
Strongest positive: People v. Hogg CA1/2 (calctapp, 2013-11-26)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Hogg CA1/2
Cal. Ct. App. · 2013 · confidence medium
(United States v. Keith (9th Cir. 1985) 754 F.2d 1388, 1391-1392 [restitution under the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3579 , 3580, is a criminal penalty; victim enforcement provision “does not transform a sentencing proceeding resulting in a restitution order into an ‘action at common law’ within the meaning of the seventh amendment”].) We are similarly unpersuaded that the Seventh Amendment has any application here.
discussed Cited as authority (rule) United States v. Lawrence Michael Stanfill El
9th Cir. · 2013 · confidence medium
See United States v. Dubose, 146 F.3d 1141, 1148 (9th Cir.1998) (regarding an order of restitution under the MVRA); United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.1985) (concerning restitution under the Victim and Witness Protection Act of 1982, the predecessor statute to the MVRA); see also United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir.2007) (noting that courts may look to VWPA cases in interpreting the MVRA).
discussed Cited as authority (rule) United States v. Stephen Murphy
9th Cir. · 2010 · confidence medium
It limits the duration of a grace period ... and does not terminate the obligation to make restitution.' ") (quoting United States v. House, 808 F.2d 508, 511-12 (7th Cir.1986)); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985) ("The district court apparently mistakenly assumed that subsection 3579(f)(2)(B) 2 defines the period for payment of restitution ordered under the Act.
discussed Cited as authority (rule) United States v. Rich
9th Cir. · 2010 · confidence medium
First, we have held repeatedly that “restitution payments have both compensatory and penal purposes.” Cloud II, *730 921 F.2d at 226 ; see United States v. Cloud, 872 F.2d at 846, 854 (9th Cir.1989) (“Cloud I”) (“Criminal restitution [is] a means of achieving penal objectives such as deterrence, rehabilitation, or retribution.”); United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.1985) (“Congress made restitution under the [Victim and Witness Protection] Act a criminal penalty.”).
cited Cited as authority (rule) United States v. Juvenile
9th Cir. · 2006 · confidence medium
United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985).
cited Cited as authority (rule) United States v. Hayes
9th Cir. · 2006 · confidence medium
It merely define[d] the maximum payment period that may be specified.” United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985).
discussed Cited as authority (rule) United States v. Bedonie
D. Utah · 2004 · confidence medium
See, e.g., United States v. Zakhary, 357 F.3d 186 (2nd Cir.2004) (collecting authorities construing provision in the MVRA to “protect crime victims” rather than defendants); United States v. House, 808 F.2d 508, 511 (7th Cir.1986) (holding unequivocally that provision in the MVRA ought be construed in a fashion that "protects the victim, not the offender”) (agreeing with United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985)). 115 .
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Mike MEKSIAN, Defendant-Appellant (2×)
9th Cir. · 1999 · confidence medium
In United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985), the defendant pled guilty to assault with intent to commit rape and second degree burglary.
discussed Cited as authority (rule) United States v. Rostoff (2×)
1st Cir. · 1999 · confidence medium
See United States v. House, 808 F.2d 508, 511 (7th Cir.1986); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985).
discussed Cited as authority (rule) United States v. Rostoff (2×)
1st Cir. · 1999 · confidence medium
SeeUnited States v. House, 808 F.2d 508, 511 (7th Cir. 1986); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir. 1985).
discussed Cited as authority (rule) UNITED STATES of America, Plaintiff-Appellee, v. Donald L. ZINK, Defendant-Appellant
9th Cir. · 1997 · confidence medium
The VWPA does not “prohibit a sentencing court from imposing a restitutionary sentence upon a defendant who is indigent at the time of sentencing.” United States v. Smith, 944 F.2d 618, 623 (9th Cir.1991) (quoting United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985)), cert. denied, 503 U.S. 951 , 112 S.Ct. 1515 , 117 L.Ed.2d 651 (1992).
discussed Cited as authority (rule) United States v. Rostoff (2×) also: Cited "see"
D. Mass. · 1997 · confidence medium
The three cases cited by the Rostoffs, Bruchey, Joseph and Diamond , all rely on one line of a Seventh Circuit decision, United States v. Fountain, 768 F.2d 790 (7th Cir.1985), cert. denied, 475 U.S. 1124 , 106 S.Ct. 1647 , 90 L.Ed.2d 191 (1986), reasoning which has been criticized in a later opinion of that same circuit as a “throwaway line” and “dicta.” United States v. House, 808 F.2d *43 508, 511 (7th Cir.1986). 8 The court in House held unequivocally that section 3663(f)(2) ought be construed in a fashion that “protects the victim, not the offender.” Id. (agreeing with the Nin…
discussed Cited as authority (rule) United States v. Bruce J. Rice, and Rice Aircraft, Inc., United States of America v. Bruce Rice
9th Cir. · 1994 · confidence medium
However, “[n]either the [Victim and Witness Protection] Act nor Rule 32 requires the sentencing court to hold an evidentiary hearing on the issue of restitution.” United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985); see also United States v. Cloud, 872 F.2d 846 , 855 n. 11 (9th Cir.), cert. denied, 493 U.S. 1002 , 110 S.Ct. 561 , 107 L.Ed.2d 556 (1989) (“[N]othing in the text or legislative history of the VWPA [] indicated] that Congress intended the sentencing hearing to be transformed into a second trial on the issue …
discussed Cited as authority (rule) United States v. James Gregory Grimes
9th Cir. · 1994 · confidence medium
In the context of restitution, this court has held that " 'due process is satisfied by affording the defendant an adequate opportunity to present his objections.' " United States v. Smith, 944 F.2d 618, 622 (9th Cir.1991), cert. denied, 112 S.Ct. 1515 (1992) (quoting United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.), cert. denied, 474 U.S. 829 (1985)).
discussed Cited as authority (rule) United States v. Gerry E. Blanchard
6th Cir. · 1993 · confidence medium
See also United States v. Matovsky, 935 F.2d 719, 722 (5th Cir.1991); United States v. Doyan, 909 F.2d 412, 414-15 (10th Cir.1990); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985).
discussed Cited as authority (rule) United States v. Dean Harvey Hicks (2×) also: Cited "see"
9th Cir. · 1993 · confidence medium
The government cites United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985), for the proposition that section 3663 allows a court to award restitution for losses not specified in the statute.
cited Cited as authority (rule) United States v. John M. Tinsley
9th Cir. · 1993 · confidence medium
See United States v. Kimball, 975 F.2d 563, 568 (1992); United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.1985), cert. denied, 474 U.S. 829 (1985).
discussed Cited as authority (rule) United States v. Michael F. Logar
3rd Cir. · 1992 · confidence medium
See United States v. Brown, 744 F.2d 905, 911 (2d Cir.), cert. denied, 469 U.S. 1089 , 105 S.Ct. 599 , 83 L.Ed.2d 708 (1984); United States v. Bruchey, 810 F.2d 456, 461 (4th Cir.1987); United States v. Ryan, 874 F.2d 1052, 1054 (5th Cir.1989); United States v. Mounts, 793 F.2d 125, 128-29 (6th Cir.), cert. denied, 479 U.S. 1019 , 107 S.Ct. 673 , 93 L.Ed.2d 724 (1986); United States v. House, 808 F.2d 508, 510 (7th Cir.1986); United States v. Owens, 901 F.2d 1457, 1459 (8th Cir.1990); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d…
discussed Cited as authority (rule) United States v. Yvonne Wilson, J.F. Spann, Sam Merit, and Oded Benary
9th Cir. · 1992 · confidence medium
Even if he were indigent, the VWPA "does not prohibit a sentencing court from imposing a restitutionary sentence upon a defendant who is indigent at the time of sentencing." United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829 (1985). 62 Finally, Merit argues that the district court failed to consider "the financial resources of the defendant, [and] the financial needs and earning ability of the defendant and the defendant's dependents," as required by 18 U.S.C. § 3664 (a).
discussed Cited as authority (rule) United States v. Bruce F. Glaspell
9th Cir. · 1992 · confidence medium
Beardon, 461 U.S. at 668-89 See United States v. Keith, 754 F.2d 1388, 1391 (9th Cir.), cert. denied, 474 U.S. 829 (1985) (interpreting Beardon to require "that incarceration of an offender for noncompliance with a restitution order be preceded by a determination that the offender has not made bona fide efforts to pay, or, if the offender has made such efforts, that alternative punishments will not satisfy the penological interests of the Government.") (emphasis added). 26 Glaspell argues that, even if due process does not impose a duty to consider alternatives to his imprisonment, the failure…
discussed Cited as authority (rule) United States v. Steve Angelica (2×) also: Cited "see"
9th Cir. · 1991 · confidence medium
However, the VWPA “does not prohibit a sentencing court from imposing a restitutionary sentence upon a defendant who is indigent at the time of sentencing.” United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985).
discussed Cited as authority (rule) United States v. Jerry D. Smith (2×) also: Cited "see"
9th Cir. · 1991 · confidence medium
In analyzing the due process claim, “we consider the private and governmental interests at stake, the risk of an erroneous deprivation of the private interests through existing procedures, and the probable value of additional or substitute procedures.” United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.) (Keith), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985).
discussed Cited as authority (rule) United States v. Michael J. Bear (2×)
9th Cir. · 1991 · confidence medium
See, e.g., United States v. Burnside, 831 F.2d 868, 870 (9th Cir.1987) (looking to Arizona law for definition of sodomy because sodomy was not defined by federal statute), cert. denied, 486 U.S. 1013 , 108 S.Ct. 1747 , 100 L.Ed.2d 210 (1988); United States v. Keith, 754 F.2d 1388, 1390 (9th Cir.) (discussing a defendant's conviction for burglary pursuant to section 1153 and Arizona law), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985); United States v. Maloney, 607 F.2d 222, 225 (9th Cir.1979) (Maloney ) (in a section 1153 case, "one must initially turn to a specific federal s…
discussed Cited as authority (rule) United States v. Ronald v. Cloud
9th Cir. · 1990 · confidence medium
See Pomazi, 851 F.2d at 248 (emphasizing compensatory nature of VWPA); Cloud I, 872 at 854 (emphasizing penal nature of VWPA); United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.) (emphasizing penal nature of VWPA), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985).
discussed Cited as authority (rule) United States v. Michael J. Bear (2×)
9th Cir. · 1990 · confidence medium
See, e.g., United States v. Burnside, 831 F.2d 868, 870 (9th Cir.1987) (looking to Arizona law for definition of sodomy because sodomy was not defined by federal statute), cert. denied, 486 U.S. 1013 , 108 S.Ct. 1747 , 100 L.Ed.2d 210 (1988); United States v. Keith, 754 F.2d 1388, 1390 (9th Cir.) (discussing a defendant's conviction for burglary pursuant to section 1153 and Arizona law), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985); United States v. Maloney, 607 F.2d 222, 225 (9th Cir.1979) (Maloney ) (in a section 1153 case, "one must initially turn to a specific federal s…
cited Cited as authority (rule) United States v. Peter Arvanitis, Stanley Peters, John Yannakis, Perikles Panagiotaros, and Robert Richards
7th Cir. · 1990 · confidence medium
Id. at 855 n. 11; United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1989).
discussed Cited as authority (rule) United States v. Roy Ryan (2×) also: Cited "see"
5th Cir. · 1989 · confidence medium
See United States v. Sunrhodes, 831 F.2d 1537, 1546 (10th Cir.1987); United States v. Purther, 823 F.2d 965, 970 (6th Cir.1987); United States v. Bruchey, 810 F.2d 456, 461 (4th Cir.1987); United States v. Atkinson, 788 F.2d 900, 904 (2nd Cir.1986); United States v. Roberts, 783 F.2d 767, 771 (9th Cir.1985); United States v. Fountain, 768 F.2d 790, 802-03 (7th Cir.1985), amended on other grounds, 111 F.2d 345, cert. denied, 475 U.S. 1124 , 106 S.Ct. 1647 , 90 L.Ed.2d 191 (1986); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1…
discussed Cited as authority (rule) United States v. Ronald v. Cloud (2×)
9th Cir. · 1989 · confidence medium
Kelly v. Robinson, 479 U.S. 36, 52 , 107 S.Ct. 353, 362 , 93 L.Ed.2d 216 (1986). 9 Accord United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985).
discussed Cited as authority (rule) State v. Nelson
Wash. Ct. App. · 1988 · confidence medium
If statutory authorization for the civil enforcement of a restitution order existed, no due process violation arises, as Nelson claims, as long as the restitution order is clearly a criminal, rather than civil, penalty, as it is under the SRA, see State v. Barr, 99 Wn.2d at 79; United States v. Satterfield, 743 F.2d at 836-37 ; Rice v. State, 491 So. 2d at 1052 , since the criminal proceeding is not thereby transformed into a civil action, triggering the Seventh Amendment jury trial right, United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.), cert. denied, 474 U.S. 829 (1985); United Stat…
cited Cited as authority (rule) United States v. Bengimina
W.D. Mo. · 1988 · confidence medium
United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985); United States v. Bruchey, 810 F.2d 456, 460 (4th Cir.1987); United States v. Mahoney, 859 F.2d 47 (7th Cir.1988). 5 .
discussed Cited as authority (rule) United States v. Donna Marie Sunrhodes
10th Cir. · 1987 · confidence medium
In determining the content of defendant’s constitutional protections in this restitution hearing under the Victim and Witness Protection Act, “we consider the private and governmental interests at *1542 stake, the risk of an erroneous deprivation of the private interests through existing procedures, and the probable value of additional or substitute procedures.” United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985), citing Mathews v. Eldridge, 424 U.S. 319, 334 , 96 S.Ct. 893, 902 , 47 L.Ed.2d 18 (1976).
discussed Cited as authority (rule) United States v. Mohan S. Grewal
9th Cir. · 1987 · confidence medium
See United States v. Ruffen, 780 F.2d 1493, 1495 (9th Cir.), cert. denied, — U.S. -, 107 S.Ct. 462 , 93 L.Ed.2d 407 (1986); United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985).
discussed Cited as authority (rule) United States v. J.C. Franklin v. Earle T. Myers
11th Cir. · 1986 · signal: cf. · confidence medium
Cf. United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.) (court may rely on unverified itemized list of victim’s losses where defendant did not object to amounts claimed), cert. denied, — U.S. -, 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985); United States v. Florence, 741 F.2d 1066, 1069 (8th Cir.1984) (court at sentencing hearing involving restitution may consider broad range of evidence including "uncorroborated hearsay evidence” that the defendant had an opportunity to rebut).
discussed Cited as authority (rule) United States v. James Clifford Mounts
6th Cir. · 1986 · confidence medium
See, e.g., United States v. Ruffen, 780 F.2d *129 1493(9th Cir.1986); United States v. Fountain, 768 F.2d 790, 802 (7th Cir.1985); United States v. Keith, 754 F.2d 1388,1393 (9th Cir.1985); United States v. Brown, 744 F.2d 905, 911 (2d Cir.1984).
discussed Cited as authority (rule) United States v. David William Roberts
9th Cir. · 1986 · confidence medium
Accordingly, we remand to the district court for the limited purpose of modifying the order to make restitution payable within a specified period or in specified installments in accordance with 18 U.S.C. § 3579 (f)(2) and United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985).
cited Cited as authority (rule) Ruley v. Nevada Board of Prison Commissioners
D. Nev. · 1986 · confidence medium
United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.1985); see also Jordan v. Robinson, 464 F.Supp. 223, 227 (W.D.Pa.1979).
discussed Cited as authority (rule) United States v. Clarence Ruffen
9th Cir. · 1986 · confidence medium
United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.), cert den., — U.S.-, 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985), citing United States v. Brown, 744 F.2d 905, 910 (2d Cir.), cert. denied, — U.S. -, 105 S.Ct. 599 , 83 L.Ed.2d 708 (1984).
discussed Cited "see" 98 Cal. Daily Op. Serv. 5080, 98 Cal. Daily Op. Serv. 6780, 98 Daily Journal D.A.R. 7017, 98 Daily Journal D.A.R. 9410 United States of America v. Colby Dubose, United States of America v. Antoine Jamar Dean
9th Cir. · 1998 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.1985); United States v. Brown, 744 F.2d 905, 910 (2d Cir.1984); United States v. Florence, 741 F.2d 1066, 1067-68 (8th Cir.1984); United States v. Satterfield, 743 F.2d 827, 839 (11th Cir.1984); United States v. Watchman, 749 F.2d 616, 617 (10th Cir.1984).
discussed Cited "see" United States v. Dubose
9th Cir. · 1998 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.1985); United States v. Brown, 744 F.2d 905, 910 (2d Cir.1984); United States v. Florence, 741 F.2d 1066, 1067-68 (8th Cir.1984); United States v. Satterfield, 743 F.2d 827, 839 (11th Cir.1984); United States v. Watchman, 749 F.2d 616, 617 (10th Cir.1984).
cited Cited "see" United States v. Vaknin
1st Cir. · 1997 · signal: see · confidence high
See, ___ e.g., United States v. Keith, 754 F.2d 1388, 1393 (9th Cir. ____ ______________ _____ 1985); United States v. Richard, 738 F.2d 1120, 1122-23 (10th _____________ _______ Cir. 1984).
discussed Cited "see" United States v. Graden James Miguel
9th Cir. · 1995 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.) (restitution ordered where "possible intervening cause ... is directly related to the assault”), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985); United States v. Spinney, 795 F.2d 1410, 1417 (9th Cir.1986) ("a restitution order is authorized if the defendant created the circumstances under which the harm or loss occurred").
cited Cited "see" United States v. Reese
5th Cir. · 1993 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388 (9th Cir. 1985); United States v. Husky, 924 F.2d 223 (11th Cir. 1991); United States v. Mitchell, 876 F.2d 1178 (5th Cir. 1989).
cited Cited "see" United States v. Reese
5th Cir. · 1993 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388 (9th Cir. 1985); United States v. Husky, 924 F.2d 223 (11th Cir. 1991); United States v. Mitchell, 876 F.2d 1178 (5th Cir. 1989).
cited Cited "see" United States v. Louis G. Reese, III
5th Cir. · 1993 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388 (9th Cir.1985); United States v. Husky, 924 F.2d 223 (11th Cir.1991); United States v. Mitchell, 876 F.2d 1178 (5th Cir.1989).
discussed Cited "see" United States v. Soderling (2×)
9th Cir. · 1992 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388, 1391-92 (9th Cir.), cert. denied, 474 U.S. 829 , 106 S.Ct. 93 , 88 L.Ed.2d 76 (1985). .
discussed Cited "see" United States v. Laszlo Pomazi
9th Cir. · 1988 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.1985) (“due process is satisfied by affording the defendant an adequate opportunity to present his objections [to an order for restitution].”) Finally, the amount of restitution ordered must be judicially established.
discussed Cited "see" United States v. George House, Jr.
7th Cir. · 1986 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.) (“The district court apparently mistakenly assumed that subsection 3579(f)(2)(B) defines the period for payment of restitution ordered under the Act.
discussed Cited "see" United States v. Jimmy Dale Gomer (2×)
7th Cir. · 1985 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388, 1392 (9th Cir.1985).
discussed Cited "see" United States v. Joseph Palma (2×)
3rd Cir. · 1985 · signal: see · confidence high
See United States v. Keith, 754 F.2d 1388 (9th Cir. 1985); United States v. Watchman, 749 F.2d 616 (10th Cir.1984); United States v. Brown, 744 F.2d 905 (2d Cir.), cert. denied, - U.S. -, 105 S.Ct. 599 , 83 L.Ed.2d 708 (1984); United States v. Satterfield, 743 F.2d 827 (11th Cir.1984); United States v. Florence, 741 F.2d 1066 (8th Cir.1984).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Norman H. KEITH, Defendant-Appellant
CA 84-1134.
Court of Appeals for the Ninth Circuit.
Mar 5, 1985.
754 F.2d 1388
Gary H. Burger, Asst. U.S. Atty., Susan A.' Ehrlich, Phoenix, Ariz., for plaintiff-appellee., Thomas M. Hoidal, Asst. Federal Public pefender, Phoenix, Ariz., for defendant-appellant.
Farris, Alarcon, Norris.
Cited by 76 opinions  |  Published
FARRIS, Circuit Judge:

I. INTRODUCTION

Norman H. Keith pleaded guilty to charges of assault with intent to commit rape (18 U.S.C. §§ 113(a), 1153) and burglary in the second degree (18 U.S.C. § 1153 and A.R.S. §§ 13-1507, 13-701, 13-801). The district court sentenced Keith to a total of twelve years in prison on both counts and ordered him to pay restitution to the victim in the total amount of $1560. The district court denied the portion of Keith’s motion for correction and reduction of sentence that sought deletion of the restitution order. - Keith appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

Keith does not dispute the fact that the victim was injured. He nevertheless asserts that the restitution order is defective in a number of respects:

1. The district court failed to consider his indigency in determining the amount of restitution liability.
2. The order may subject him to incarceration because of his inability to pay the amount ordered.
3. The order does not require him to make restitution within a specified period or in specified installments, with the result that restitution is due immediately. See 18 U.S.C. § 3579(f)(3).
4. A jury trial was not held on the question of the amount of restitution liability.
5. No hearing was held on the question of the amount of restitution liability. -
6. The sums awarded were based upon unverified statements of the victim contained in the presentence report.
7. Certain sums were improperly included in the order.

II. DISCUSSION

Keith initially challenges the constitutionality of the restitution provisions of the Victim and Witness Protection Act of 1982, 18 U.S.C. §§ 3579, 3580. He contends that the Act violates the eighth amendment’s prohibitions against excessive fines and cruel and unusual punishments, deprived him of the right to a jury trial under the sixth and seventh amendments, and denied him due process of law in violation of the fifth amendment.

A. EIGHTH AMENDMENT

Keith contends that the Act violates the eighth amendment because under it, he may be incarcerated for a period longer than his sentence of imprisonment simply because he is financially unable to comply with the restitution order. In the cases upon which Keith relies, similar claims were raised directly under the equal protection and due process clauses of the fourteenth amendment, not under the eighth amendment. See Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); Tate v. Short, 401 U.S. 395, 91 S.Ct.[*1391] 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970).

Keith’s eighth amendment claims necessarily challenge the Act on its face because he has not been incarcerated as a result of any failure on his part to comply with the restitution order. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) requires that incarceration of an offender for noncompliance with a restitution order be preceded by a determination that the offender has not made sufficient bona fide efforts to pay, or, if the offender has made such efforts, that alternative punishments will not satisfy the penological interests of the Government. The Act requires courts and the Parole Commission to consider the willfulness of the offender’s failure to pay restitution in determining whether or not to revoke probation or parole, 18 U.S.C. § 3579(g). [1] But it doe's not explicitly require them to find that alternative punishments to incarceration do not satisfy the Government’s penological interests before imprisoning an offender who has not complied with a restitution order but has made sufficient bona fide efforts to pay. Nothing in the Act, however, prevents us from construing it to include such a requirement. Following the canon that “[fjederal statutes are to be so construed as to avoid serious doubt of their constitutionality,” International Association of Machinists v. Street, 367 U.S. 740, 749, 81 S.Ct. 1784, 1790, 6 L.Ed.2d 1141 (1961), we construe the Act to incorporate the constitutional requirements of fundamental fairness set forth in Bearden. United States v. Satterfield, 743 F.2d 827, 842-43 (11th Cir.1984).

B. JURY TRIAL

The Sixth Amendment does not guarantee a right to a jury determination of the appropriate sentence in a criminal proceeding. Spaziano v. Florida, — U.S. —, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984). Keith asserts, however, that the seventh amendment requires the sentencing court to hold a jury trial on the issue of the amount of restitution liability because the provision of the Act authorizing the victim to enforce a restitution order, 18 U.S.C. § 3579(h), transforms a restitution order into a civil judgment.

“[T]he question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction.” United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). Congress intended restitution under the Act to be a criminal penalty carrying the stigma associated with other authorized criminal sanctions. Under the Act, a court “sentencing” a defendant convicted of specified federal criminal offenses may order restitution “in addition to or in lieu of any other penalty authorized by law.” 18 U.S.C. § 3579(a)(1). Unlike an award of damages in a civil action, a restitution order under the Act may compensate only for the kinds of harms enumerated in subsection 3579(b) (excluding, for example, pain and suffering) and does not bar a subsequent civil action for damages based upon the same incident. 18 U.S.C. §§ 3579(e)(2), 3580(e). Finally, the Act requires the sentencing court to consider “the financial resources of the defendant, [and] the financial needs and earning ability of the defendant and the defendant’s dependents” in determining the amount of restitution liability, evidence that would be inadmissible in a[*1392] civil action for damages. 18 U.S.C. § 3580(a).

Congress made restitution under the Act a criminal penalty. We agree with the Second, Eighth, Tenth, and Eleventh Circuits that inclusion of the victim enforcement provision in the Act does not transform a sentencing proceeding resulting in a restitution order into an “action at common law” within the meaning of the seventh amendment. United States v. Watchman, 749 F.2d 616, 617 (10th Cir.1984); United States v. Satterfield, 743 F.2d 827, 839 (11th Cir.1984); United States v. Brown, 744 F.2d 905, 910 (2d Cir.1984); United States v. Florence, 741 F.2d 1066, 1067-68 (8th Cir.1984). Keith was not entitled to a jury trial on the issue of the amount of restitution liability.

C. DUE PROCESS

In identifying the specific dictates of due process, we consider the private and governmental interests at stake, the risk of an erroneous deprivation of the private interests through existing procedures, and the probable value of additional or substitute procedures. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976).

Keith disputed the amount of restitution throughout the sentencing proceedings, but he did so only by arguing that no restitution should have been awarded because of his indigency and that specific sums included in the restitution order went beyond the scope of compensable harms under the Act. Keith never challenged the accuracy of any of the specific sums that were included in the restitution order.

Although no witnesses were called on the issue of restitution and the sums requested were not verified, the district court considered Keith’s objections to the inclusion of certain items in the restitution order and refused to include one of the contested claims. The presentence report set forth the victim’s losses in the following amounts:

1. Destruction of personal prop-
erty: $230
2. Medical bills: $230
3. Lost wages: $650
4. Airplane ticket for victim $450
$1560
5. Airplane ticket for victim’s fa-
ther $450
$2010

The last item was not included in the restitution order.

Where, as here, the amounts to be included in the restitution order are itemized, the objections are to their inclusion rather than to their amount, and the amounts claimed by the victim do not appear unreasonable on their face, due process is satisfied by affording the defendant an adequate opportunity to present his objections. Keith was given and took advantage of such opportunities at the sentencing and resentencing hearings, at oral argument on his motion for correction and reduction of his sentence, and in his original and supplemental sentencing memoranda. C f. United States v. Watchman, 749 F.2d 616, 619 (10th Cir.1984) (where district court, in setting amount of restitution, relied upon figures in presentence report “established by telephone conversations with unidentified persons” and record did not indicate that victim had been interviewed as to her losses, procedure followed in determining amount of restitution was not in accordance with VWPA). Keith was not denied due process.

D. STATUTORY CLAIMS

Keith contends that the district court abused its discretion by failing to hold a hearing on the restitution issue, by ordering restitution against an indigent defendant, and by failing to consider his lack of financial resources and the financial needs and earning ability of himself and his dependents. 18 U.S.C. § 3580(a). He also asserts that the district court improperly included some claims of financial loss in the restitution order.

Neither the Act nor Rule 32 requires the sentencing court to hold an evidentiary hearing on the issue of restitution.[*1393] The court may, in its discretion, allow the defendant to introduce testimony relating to any alleged factual inaccuracy contained in the presentence report, but Keith did not allege any such factual inaccuracy. Fed.R. Crim.P. 32(c)(3)(B). The Government conceded that Keith was indigent and could not make restitution at the time of sentencing, making it unnecessary to conduct a hearing on his ability to pay. Both Keith and his counsel were granted opportunities to speak on Keith’s behalf, to present information in mitigation of punishment, and to comment on the presentence report. Fed. R.Crim.P. 32(a)(1)(B), (C), (c)(3)(A). The sentencing hearing satisfied the requirements of the Act and Rule 32 as well as the requirements of due process.

The Act does not prohibit a sentencing court from imposing a restitutionary sentence upon a defendant who is indigent at the time of sentencing. United States v. Brown, 744 F.2d 905 at 910 (2d Cir.1984). The Act specifically instructs the sentencing court to consider the defendant’s earning ability in determining the amount of restitution. 18 U.S.C. § 3580(a). The district court reasonably could have determined that Keith has sufficient earning ability to pay $1560 in restitution over the five year period following his release from prison.

The district court apparently mistakenly assumed that subsection 3579(f)(2)(B) [2] defines the period for payment of restitution ordered under the Act. It does not. It merely defines the maximum payment period that may be specified. Subsection 3579(f)(3) provides that unless the sentencing court provides to the contrary in the restitution order, restitution is due immediately. The district court did not specify a payment period in the restitution order, thereby unintentionally making restitution due immediately. But because there is no factual dispute about Keith’s present ability to pay, we hereby modify the order to provide that Keith shall pay restitution as ordered within five years after his release from confinement unless he is financially able to do so at an earlier date.

We have reviewed the restitution order to determine if any of the amounts included fall outside the kinds of harms for which a court may order restitution under the Act. Keith asserts that the Act does not cover the victim’s air fare for her visit to her family after the assault. Subsection 3579(b)(2)(A) provides that in a case involving bodily injury to the victim, the court may require the defendant to pay for the “cost of necessary medical services ... including nonmedical care and treatment____” A sentencing judge could properly find that the support and comfort of the family are important elements in the care and treatment of the psychological trauma caused by the kind of assault that resulted in Keith’s conviction. Keith also argues that the victim might have left her job not because of the assault itself but rather because of an incident involving Keith’s mother that was interpreted by the victim as a threat. Even if we were to accept this reading of the presentence report, the amount awarded for lost wages was proper. The possible intervening cause discussed by Keith is directly related to the assault. He cannot seriously contend that the victim’s loss of wages was not “a result of [the] offense.” 18 U.S.C. § 3579(b)(2)(C). See United States v. Richard, 738 F.2d 1120, 1123 (10th Cir.1984). All of the items were properly included in the restitution order.

Affirmed.

1

. Consistent with the dictates of Bearden, the legislative history states that "[u]pon determination that the offender is financially capable of compliance [with a restitution order] and that failure to comply is willful, parole or probation shall be revoked.” Sen.Rep. No. 97-532, 97th Cong., 2nd Sess. 33, reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2539. The legislative history does not preclude the revocation of probation or parole where the offender is financially unable to make restitution and noncompliance with the restitution order is not willful. Nor does the legislative history require the courts and Parole Commission to find that alternative punishments to incarceration would not satisfy the Government’s penalogical interests before revoking the probation or parole of an offender who has made sufficient bona fide efforts to pay restitution.

2

. Subsection 3579(f)(2)(B) provides that the end of the period specified for payment of restitution "shall not be later than five years after the term of imprisonment imposed, if the court does not order probation.” 18 U.S.C. § 3579(f)(2)(B).