United States v. James Randall Durham, 755 F.2d 511 (6th Cir. 1985). · Go Syfert
United States v. James Randall Durham, 755 F.2d 511 (6th Cir. 1985). Cases Citing This Book View Copy Cite
90 citation events (8 in the last 25 years) across 15 distinct courts.
Strongest positive: United States v. Jerry Wallace (ca6, 2011-12-19)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 36 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Jerry Wallace
6th Cir. · 2011 · confidence medium
This Court defines “victim” under the VWPA “to reach ‘indirect’ victims ... as well as ‘direct’ victims.” United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985), abrogated on other grounds by United States v. Clark, 957 F.2d 248, 253 (6th Cir.1992).
examined Cited as authority (rule) United States v. Bold (3×)
S.D. Ohio · 2011 · confidence medium
United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985); see also doc. #31 at 3.
discussed Cited as authority (rule) United States v. Renard L. Washington
11th Cir. · 2006 · confidence medium
We rejected the government’s argument that Hughey allowed restitution to “anyone suffering ‘injury as a result of the defendant’s actions that surrounded the commission of the offense’ of conviction.” Id. (quoting United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985) (emphasis added in Cobbs)).
discussed Cited as authority (rule) United States v. Wade
6th Cir. · 2005 · confidence medium
Compare United States v. Tomlinson, Nos. 03-50558 and 03-50559, 2004 WL 2296718 , *1 (9th Cir. Oct. 8, 2004) (vacating and remanding restitution award because of “potential Blakely issues”), with United States v. Garcia-Castillo, 2005 WL 327698 , No. 03-2166 (10th Cir. Feb. 11, 2005) (rejecting Booker challenge to restitution order but noting that “[w]hether restitution is criminal punishment and whether restitution is subject to Apprendi, Blakely, and Booker are by no means settled questions in courts across the country.”); United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004…
discussed Cited as authority (rule) United States v. Scott Allen McDaniel (03-1940) and Gregory Warren Wade (03-2073)
6th Cir. · 2005 · confidence medium
Compare United States v. Tomlinson, 110 Fed.Appx. 835 , 2004 WL 2296718 , *1 (9th Cir. Oct.8, 2004) (vacating and remanding restitution award because of “potential Blakely issues”), with United States v. Garcia-Castillo, 2005 WL 327698 , No. 03-2166 (10th Cir. Feb. 11, 2005) (rejecting Booker challenge to restitution order but noting that "[wjhether restitution is criminal punishment and whether restitution is subject to Apprendi, Blakely, and Booker are by no means settled questions in courts across the country.”); United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir.2004) (rejecting…
discussed Cited as authority (rule) Kenneth Lee Payton, A/K/A Kenneth L. Willis v. United States
6th Cir. · 1990 · confidence medium
United States v. Durham, 755 F.2d 511, 515 (1985). 2 25 In Durham, this court found that the sentencing hearing record was "devoid of any indication that the trial court considered (defendant's) financial condition." Id.
discussed Cited as authority (rule) United States v. Grundhoefer (2×) also: Cited "see"
2d Cir. · 1990 · confidence medium
A sen tencing court is authorized to provide restitution to “any” victim of the offense, even those not named in the criminal indictment, see United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985), but is not bound to reimburse a victim’s loss in full, United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986).
discussed Cited as authority (rule) United States v. Arthur Grundhoefer, Leonard Hausman, Richard E. O'connell, as Trustee in Bankruptcy for Hausman Computer Associates, Inc., an Intervening Party, Richard E. O'connell, Claimant-Appellant v. Brooklyn Legal Services Corporation (2×) also: Cited "see"
2d Cir. · 1990 · confidence medium
A sentencing court is authorized to provide restitution to "any" victim of the offense, even those not named in the criminal indictment, see United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985), but is not bound to reimburse a victim's loss in full, United States v. Atkinson, 788 F.2d 900, 903 (2d Cir.1986). 27 The orders directing that restitution be made for the benefit of the student victims of the Hausman School were not an abuse of discretion.
cited Cited as authority (rule) Hughey v. United States
SCOTUS · 1990 · confidence medium
The Sixth Circuit has held that a court may require a defendant to make restitution “to victims of the offense for which he was convicted.” United States v. Durham, 755 F. 2d 511, 512 (1985).
discussed Cited as authority (rule) United States v. Carl L. Briggs
6th Cir. · 1990 · confidence medium
While United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985), can be read to require an explicit finding on the question of whether a victim has been compensated for his or her losses, we do not believe this reading is appropriate.
discussed Cited as authority (rule) United States v. Evan Miller (88-2272) and Jonathan Miller (89-1129) (2×)
6th Cir. · 1990 · confidence medium
The VWPA provides in relevant part: “[t]he court, when sentencing a defendant convicted of an offense under this title ..., may order, in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of the offense.” 18 U.S.C. § 3579 (a)(1) (1982) (emphasis added). 2 We have interpreted the definition of “offense” narrowly, limiting restitution payments to “victims of the offense for which [the defendant] was convicted.” United States v. Durham, 755 F.2d 511, 512 (6th Cir.1985); see also United States v. Mounts, 793 F.2d 125, 127 …
cited Cited as authority (rule) United States v. Ronald v. Cloud
9th Cir. · 1989 · confidence medium
See, e.g., Bruchey, 810 F.2d at 459 ; United States v. Palma, 760 F.2d 475, 480 (3d Cir.1985); and United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985).
discussed Cited as authority (rule) United States v. Ovie L. Duncan (2×)
10th Cir. · 1989 · confidence medium
Stealing a car to escape the scene of a misuse of explosives unlawfully received is not so attenuated as to elude the definition of Durham, i.e., “a ‘victim’ [is] a person who suffered injury as a result of the defendant’s actions that surrounded the commission of the offense, regardless of whether the actions are elements of the offense charged.” Mounts, 793 F.2d at 128 (emphasis added) (quoting United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985)).
discussed Cited as authority (rule) State v. Webb
Vt. · 1989 · confidence medium
In United States v. Durham, 755 F.2d 511, 513 (6th Cir. 1985). the Sixth Circuit emphasized that “Congress intended ‘victim’ to be interpreted very broadly”: Section 3579(a)(1) permits restitution to “any victim of the offense.” (emphasis added.) The expansive definition suggested by this language is supported by other provisions of the Act that make clear that Congress intended the definition to reach “indirect” victims such as [insurance companies].
examined Cited as authority (rule) United States v. Orlando Berrios (4×) also: Cited "see, e.g."
2d Cir. · 1989 · confidence medium
See, e.g., United States v. Pomazi, 851 F.2d 244, 249 (9th Cir.1988); United States v. Kirkland, 853 F.2d 1243, 1249-50 (5th Cir.1988); United States v. Hill, 798 F.2d 402, 405 (10th Cir.1986); United States v. Paul, 783 F.2d 84, 88 (7th Cir.1986); United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985).
discussed Cited as authority (rule) United States v. Joseph Orville Youpee (2×)
9th Cir. · 1988 · confidence medium
In United States v. Durham, 755 F.2d 511, 513-14 (6th Cir.1985), the Sixth Circuit addressed precisely this issue.
cited Cited as authority (rule) United States v. Donna Marie Sunrhodes
10th Cir. · 1987 · confidence medium
United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985).
examined Cited as authority (rule) United States v. Johnson (3×) also: Cited "see, e.g."
D. Conn. · 1987 · confidence medium
United States v. Barnette, 800 F.2d 1558, 1571 (11th Cir.1986); United States v. Mounts, 793 F.2d 125, 127 (6th Cir.1986); United States v. Durham, 755 F.2d 511, 512 (6th Cir.1985).
discussed Cited as authority (rule) United States v. Kealoha Crash Spinney
9th Cir. · 1986 · signal: cf. · confidence medium
Cf. United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985) (restitution proper for one “who suffered injury as a result of the defendant’s actions that surrounded the commission of the offense, regardless of whether the actions are elements of the offense charged”).
discussed Cited as authority (rule) United States v. James Clifford Mounts
6th Cir. · 1986 · confidence medium
This Court has previously adopted a narrow definition of “offense” holding that “[a] natural construction of this language would require that the defendant make restitution only to victims of the offense for which he was convicted.” United States v. Durham, 755 F.2d 511, 512 (6th Cir.1985).
cited Cited as authority (rule) United States v. Clarence Ruffen
9th Cir. · 1986 · confidence medium
In United States v. Durham, 755 F.2d 511, 513-14 (6th Cir.1985), the court considered the issue of whether the VWPA was tended to apply only to human victims and concluded in the negative.
examined Cited as authority (rule) United States v. James Marshall Shackelford (84-5995), Douglas McArthur Brooks (84-5998) (3×) also: Cited "see", Cited "see, e.g."
6th Cir. · 1985 · confidence medium
No. 97-291, 96 Stat. 1248 (1982) (restitution provisions effective to offenses occurring on or after January 1, 1983), without the benefit of this Court’s decision in United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985), which held that the VWPA requires district court judges to make certain factual findings before restitution is imposed.
cited Cited "see" United States v. Campbell
6th Cir. · 2007 · signal: see · confidence high
See United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985); 18 U.S.C. § 3663 (a)(l)(B)(i)(II).
cited Cited "see" In re DuPage Boiler Workers, Inc.
7th Cir. · 1992 · signal: see · confidence high
See Durham, 755 F.2d at 513.
cited Cited "see" In the Matter of Dupage Boiler Works, Incorporated, Debtor. Appeal of Morton Scherl
7th Cir. · 1992 · signal: see · confidence high
See Durham, 755 F.2d at 513 .
discussed Cited "see" State v. Maupin
Ariz. Ct. App. · 1990 · signal: accord · confidence high
Accord United States v. Durham, 755 F.2d 511 (6th Cir. 1985); People v. Chery, 126 A.D.2d 659 , 511 N.Y.S.2d 88 (App.1987), appeal denied, 69 N.Y.2d 825 , 513 N.Y.S.2d 1032 , 506 *253 N.E.2d 543 (1987); Harrison v. State, 713 S.W.2d 760 (Tex.App.1986).
discussed Cited "see" United States v. John P. Doolan
6th Cir. · 1989 · signal: see · confidence high
See United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985) (a victim is "a person who suffered injury as a result of the defendant's actions that surrounded the commission of the offense, regardless of whether the actions are elements of the offense charged.").
cited Cited "see" Avery B. Klein v. United States
6th Cir. · 1988 · signal: see · confidence high
See United States v. Durham, 755 F.2d 511, 513-14 (6th Cir.1985).
cited Cited "see" United States v. Darlene G. Bruchey
4th Cir. · 1987 · signal: see · confidence high
See United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985).
cited Cited "see" United States v. Anderson Atkinson
2d Cir. · 1986 · signal: see · confidence high
See United States v. Durham, 755 F.2d 511, 514-15 (6th Cir.1985).
cited Cited "see, e.g." United States v. Malpeso
E.D.N.Y · 1996 · signal: see, e.g. · confidence medium
See, e.g., United States v. Durham, 755 F.2d 511, 512-13 (6th Cir.1985); United States v. Ferranti, 928 F.Supp. 206, 224 (E.D.N.Y.1996) (restitution- to insurance underwriters).
cited Cited "see, e.g." United States v. Steven C. Streebing
6th Cir. · 1993 · signal: see, e.g. · confidence low
See, e.g., United States v. Durham, 755 F.2d 511 (6th Cir.1985).
discussed Cited "see, e.g." United States v. R. Randall Walker, United States of America v. Trula A. Walker
8th Cir. · 1990 · signal: see also · confidence medium
Duncan, 870 F.2d at 1536 ; see also United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985) (insurer of car burned in course of robbery get-a-way properly given restitution from defendant convicted of robbery).
discussed Cited "see, e.g." United States v. Donald A. Hairston, Sr.
11th Cir. · 1989 · signal: see also · confidence medium
See also United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985) (adopting a broad definition of “victim” and affirming an order of restitution to the insurer of an automobile destroyed by arson during the commission of a bank robbery, even though the defendant was not charged with arson); United States v. Richard, 738 F.2d 1120, 1123 (10th Cir.1984) (holding that restitution is proper if the defendant created the circumstances under which a loss could occur).
discussed Cited "see, e.g." United States v. Loran Michael Spars
8th Cir. · 1988 · signal: see also · confidence medium
In interpreting the VWPA, this court has held “the VWPA requires the victim must have suffered loss as a result of the offense charged.” United States v. Kail, 804 F.2d at 449 ; see also United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985); United States v. Missouri Valley Construction Co., 741 F.2d 1542 , 1546 n. 6 (8th Cir.1984).
discussed Cited "see, e.g." United States v. Wayne Randell Anglian (2×)
6th Cir. · 1986 · signal: see also · confidence medium
Secs. 3579 (b)(1), 3580(a); see also United States v. Durham, 755 F.2d 511, 513 (6th Cir.1985) (restitution not limited to loss from acts resulting from necessary elements of offense charged).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
James Randall DURHAM, Defendant-Appellant
84-5500.
Court of Appeals for the Sixth Circuit.
Mar 1, 1985.
755 F.2d 511
Allen W. Holbrook, Federal Public Defender, Lexington, Ky., for defendant-appellant, T . TT ,, . „ „ _L°uls DeFakuse, U.S. Atty (argued), R. Michael Murphy, Lexington, Ky., for plain-i -appe ee.
Martin, Krupansky, Celebrezze.
Cited by 52 opinions  |  Published
BOYCE F. MARTIN, Jr., Circuit Judge,

James Randall Durham appeals the district court’s denial of his motion to be relieved from an illegal sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. After accepting Durham’s guilty plea to a charge of bank robbery, the trial judge imposed a prison sentence and ordered Durham to pay $14,087.81 to the Westfield Insurance Company and $1,971.00 to the Cumberland Valley National Bank of London, Kentucky pursuant to the restitution provisions of the Victim and Witness Protection Act, 18 U.S.C. §§ 3579, 3580. Durham’s Rule 35 motion claimed that the restitution order violated the terms of the Act and that, if the restitution was proper under the Act, the Act is unconstitutional. The district court denied relief and Durham appealed.

The Victim and Witness Protection Act provides in part:

The court, when sentencing a defendant convicted of an offense under this title ... may order, in addition to or in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of the offense.

18 U.S.C. § 3579(a)(1). Durham argues that neither Westfield nor Cumberland Valley is a “victim of the offense” within the meaning of section 3579(a)(1). Westfield is the insurer of an automobile that Durham and another person destroyed by arson during the course of the robbery. Durham argues that Westfield is not a “victim of the offense” because the information did not char^e him with arson and his Plea cement made no mention of Westfield, the automobile, or arson. Cumberland Valley is the bank that Durham robbed, and Durham wag ordered to reimburse the bank for itg unrecovered losses. Durbam argues that neither Cumberland Valley nor Westfield is a “victim of the offense” because the Act was intended to apply only to human victims.

Durham also claims that the Act violates the seventh amendment because it in effect imposes a civil judgment without guaranteeing the right to a jury trial and violates the fifth amendment due process guarantee because the Act does not by its terms provide for discovery or cross-examination, Finally, Durham argues that the court failed to consider his financial condition as required by the Act, 18 U.S.C. § 3580(a), and that the court made no finding whether Cumberland Valley had been reimbursed by a third party, as required by the Act, 18 U.S.C. § 3579(e)(1). [1]

Nowhere in the Act is the term “victim” or “offense” defined. Nevertheless, we are not without guidance in attempting to discover Congress’ meaning. Initially, section 3579(a)(1) provides for restitution to a victim of “the offense.” A natural construction of this language would require that the defendant make restitution only to vict*ms °f the offense for which he was convicted. Nothing in the statute or the ^g^ative history requires a contrary read-

The more difficult question is to determine who is a “victim” of the offense. We[*513] believe that Congress intended “victim” to be interpreted very broadly. Section 3579(a)(1) permits restitution to “any victim of the offense.” (emphasis added). The expansive definition suggested by this language is supported by other provisions of the Act that make clear that Congress intended the definition to reach “indirect” victims such as Westfield as well as “direct” victims, such as Cumberland Valley.

Section 3579(b)(1) specifies the restitution that may be ordered “in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense.” (emphasis added). Similarly, section 3580(a) requires that the court consider “the amount of the loss sustained by any victim as a result o/the offense____” (emphasis added). See also 18 U.S.C. § 3579(b)(2), (b)(3). This language clearly indicates that Congress intended restitution to be awarded to persons who suffered injury “as a result of” the offense. The remaining question is whether Congress intended a “victim” to be a person who suffered injury as a result of actions that are necessary elements of the offense charged, or whether Congress intended a “victim” to be a person who suffered injury as a result of the defendant’s actions that surrounded the commission of the offense, regardless of whether the actions are elements of the offense charged. We believe Congress intended the latter definition.

Section 3580(e) provides that a defendant may be subject to collateral estoppel in a subsequent civil action brought by a victim if the “offense involv[ed] the act giving rise to restitution under this section____” Thus, Congress drew a distinction between offenses that involve the act giving rise to restitution and offenses that do not involve the act giving rise to restitution. If Congress created such a distinction, Congress clearly meant to provide restitution in some cases in which a person was injured by an act that was not an element of the offense. This interpretation is supported by the Senate Report that accompanied the bill, which indicates that Congress meant to allow restitution to an injured bank teller when the crime charged was bank robbery and not a crime against the teller:

The Committee intends that the victim impact statement be used in all crimes where there is a human victim. But even in cases where the crime is legally perpetrated against an institution, such as a bank, and there is a human victim such as a bank teller, a victim impact statement should be prepared. The Committee also notes that the definition of victims is purposely broad to include other “indirect” victims such as family members of homicide victims.

S.Rep. No. 532, 97th Cong., 2d Sess. 13, reprinted in 1982 U.S.Code Cong. & Ad. News 2515, 2519.

We do not find it necessary at this point to delineate the exact contours of the definition of a “victim.” That task should await further experience under the Act. For now it is sufficient to note that however narrow the definition, it is broad enough to include Westfield. The automobile was burned during the course of Durham’s getaway from the scene of the bank robbery. The destruction of the automobile certainly may be said to have been the “result of” the bank robbery. Westfield, the insurer of the automobile, is therefore a victim of the bank robbery.

Next, Durham claims that non-human entities are categorically excluded from the definition of a “victim.” Nothing in the statute or its legislative history supports that claim. In fact, the Senate Report indicates that one purpose of the Act is to remedy undesirable situations in which “insurance companies and the insurance buying public are being asked to pay off the offender’s debt.” S.Rep. No. 532, 97th Cong., 2d Sess. 31, reprinted in 1982 U.S.Code Cong. & Ad.News 2515, 2537. Moreover, several courts have upheld restitution awards to non-human entities under the Act. See United States v. Florence, 741 F.2d 1066 (8th Cir.1984); United States v. Dudley, 739 F.2d 175 (4th Cir.1984); United States v. Richard, 738 F.2d 1120 (10th Cir.1984). We conclude that a non[*514] human entity may be a victim of the offense within the meaning of the Act.

That brings us to Durham’s constitutional challenges. Several courts have upheld the constitutionality of the Act against claims that it ran afoul of the seventh and fifth amendments. See United States v. Watchman, 749 F.2d 616 (10th Cir.1984) (seventh amendment); United States v. Brown, 744 F.2d 905 (2d Cir.1984) (seventh amendment); United States v. Satterfield, 743 F.2d 827 (11th Cir.1984) (seventh and fifth amendments); United States v. Florence, 741 F.2d 1066 (8th Cir.1984) (seventh and fifth amendments). In those cases, however, the facts that gave rise to the restitution order were either elements of the offense charged or were fully adjudicated during the course of the trial leading to the defendant’s conviction. By contrast, Durham pleaded guilty to a charge of bank robbery, not arson of an automobile, so the facts that gave rise to the restitution order, at least with respect to Westfield, were neither admitted by Durham through the guilty plea nor fully adjudicated during a trial. The only evidence that Durham burned the auto is hearsay statements contained in the pre-sentence report relied upon by the sentencing judge. The absence of an effective admission or full adjudication of the fact of injury, as opposed to the extent of injury, may put Durham’s claims on different constitutional footing than those advanced in Watchman, Brown, Satterfield, and Florence.

Nevertheless, we do not believe that this is the appropriate case in which to resolve these constitutional questions. A review of the record indicates that at no point in the proceedings in the district court or on appeal has Durham claimed that he did not, in fact, burn the automobile. Durham also has not challenged the accuracy of the district court’s determination of the value of the auto. The absence of challenges to the district court’s determinations of fact precludes the constitutional challenges made by Durham.

Durham claims that the seventh amendment entitles him to a jury determination of the issue of restitution. He also claims that due process entitles him to discovery and cross-examination. The purpose of the procedural devices Durham seeks — jury trial, discovery, and cross-examination — is to enhance the accuracy of factual determinations. Where the claimant does not dispute the accuracy of any factual finding, invocation of jury trial and due process guarantees is not proper. In declining to entertain the same seventh and fifth amendment challenges now pressed by Durham, the Fourth Circuit stated:

[A]s things stand at present, there is no issue of fact to be resolved, no function for a jury to perform. Consequently, no question of application of the Seventh Amendment is extant.
As with the Seventh Amendment concerns ... we may save the novel issue [of application of the fifth amendment], too, for another day, in light of the absence of efforts to contest the accuracy of the amount of the restitution ordered.

United States v. Dudley, 739 F.2d 175, 179 (4th Cir.1984). We follow the wise course suggested by the Fourth Circuit and decline to address the constitutional issues.

Finally, Durham argues that the court failed to consider his financial condition and to make a finding whether Cumberland Valley had been reimbursed by a third party. Section 3580(a) provides:

The court, in determining whether to order restitution under section 3579 of this title and the amount of such restitution, shall consider ... the financial resources of the defendant, the financial need and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate, (emphasis added).

Section 3579(e)(1) provides:

The court shall not impose restitution with respect to a loss for which the victim has received or is to receive compen-sation____ (emphasis added).

The record of the sentencing hearing is devoid of any indication that the trial court[*515] considered Durham’s financial condition. The trial court also failed to make a finding with respect to whether Cumberland Valley, a federally insured bank, “has received or is to receive compensation” for its unre-covered losses. These duties are clearly mandated by the statute, and we will remand this ease to permit the district court to develop a complete record.

Durham’s other contentions are without merit.

The case is remanded to the district court.

1

. Durham also moved for an order dismissing his appellate counsel, the Federal Public Defender, on the ground that counsel was incompetent. We denied the request because the brief filed by counsel was excellent in every respect; counsel also performed well at oral argument.