
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 93-2203                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                    LEROY GIBBENS,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               William Maselli for appellant.               _______________               Margaret  D. McGaughey,  Assistant  United States  Attorney,               ______________________          with whom Jay  P. McCloskey, United States Attorney,  and Raymond                    _________________                               _______          C.  Hurley, Assistant United States  Attorney, were on brief, for          __________          appellee.                              _________________________                                     June 1, 1994                              _________________________                    SELYA,  Circuit   Judge.    This  appeal   presents  an                    SELYA,  Circuit   Judge.                            _______________          unsettled  question:   is the  government a  "victim" within  the          purview  of the Victim and  Witness Protection Act,  18 U.S.C.             3363-3364 (VWPA or  the Act), and, thus, entitled to restitution,          when  it  provokes the  commission of  a  crime that,  by design,          directly  results in depletion of public coffers?  We answer this          question in the negative, concluding that, in such circumstances,          the sovereign is  not entitled to restitution under the  Act.  At          the  same time,  we resolve  a more  pedestrian sentencing  issue          which, although much bruited by appellant, has little substance.          I.  BACKGROUND          I.  BACKGROUND                    Defendant-appellant  Leroy Gibbens  is a  shoemaker who          did not stick to his last.  Instead, Gibbens developed a sideline          as a  broker  of second-hand  food stamps.   In  April 1992,  the          United  States  Department  of   Agriculture  (USDA)  mounted  an          investigation  into food  stamp trafficking  in Lewiston,  Maine.          The  targets of the investigation included appellant and his son,          Zachary J. Gibbens.                    In due  course, an undercover  agent approached Gibbens          the younger and his confederate, Joseph R. Beaulieu III, offering          to  sell food stamps at roughly twenty-five cents on the dollar.1          The junior Gibbens, who had followed in his father's footsteps in          more ways than one, consummated a few small transactions with the          agent,  reselling the  bootleg food  stamps in saloons  and other                                        ____________________               1Zachary  Gibbens  and  Joseph  Beaulieu  were  employed  by          appellant at his shoe repair shop in Lewiston.                                          2          local haunts  for thirty or forty  cents on the dollar.   He also          told  his father of the  agent's overtures, and,  at his father's          urging, put the two men in contact with each other.                    Appellant, having recently  repaired to Florida,  dealt          with the agent by telephone,  wire, or mail, or by using  his son          as  an internuncio.    In a  half-dozen  transactions during  the          spring  and summer of 1992,  appellant bought stamps  that had an          aggregate face  value of $12,895, paying  the agent approximately          one-fourth of that amount, and resold them at a profit.  In their          communications  throughout  this  period,  appellant  continually          importuned his  vendor to  furnish more  stamps at  more frequent          intervals.   He  also  boasted about  a putative  partner, albeit          vaguely.   Then,  suddenly, to  appellant's apparent  dismay, the          stream of sales stopped in July of 1992.                    Toward the end of that year, the agent renewed contact.          Appellant  bought  two  more  batches  of  food  stamps  at  deep          discounts.   The redemption  value of the  stamps acquired during          this period  totalled $8,100.   The second of  these transactions          marked the initial face-to-face meeting between appellant and the          agent.                    The  government subsequently  dropped  the other  shoe:          all  three cobblers were arrested and a federal grand jury handed          up a fourteen-count indictment.  Appellant pleaded  guilty to one          count  of conspiracy  to  acquire  and  use  food  stamps  in  an          unauthorized manner, 18  U.S.C.    371, and  six counts  alleging          unlawful possession of  food stamps  in violation of  7 U.S.C.                                             3          2024(b).   The government agreed to dismiss the only other counts          in which appellant was featured.                    The district court  sentenced appellant on October  22,          1993.  In  constructing the guideline sentencing range (GSR), the          court started at offense level six.   See U.S.S.G.  2F1.1(a).  It                                                ___          then  factored in  a four-level  upward adjustment for  amount of          loss,  see U.S.S.G.   2F1.1(b)(1)(E)  (specifying  increment  for                 ___          fraud cases involving losses ranging from $20,000 to $39,999.99),          a  two-level  enhancement  for  more-than-minimal  planning,  see                                                                        ___          U.S.S.G.  2F1.1(b)(2)(A), and  a two-level credit for  acceptance          of  responsibility,  see  U.S.S.G.   3E1.1.   These  computations                               ___          yielded an adjusted offense level of ten.  For a defendant with a          negligible record of prior criminality (Criminal History Category          I), this adjusted offense level  produced a GSR of  six-to-twelve          months in prison.                    The court imposed  a six-month incarcerative  sentence,          to  be followed by three years  of supervised release.  The court          eschewed  any fine, but ordered  appellant to pay  $15,230 to the          government as  restitution.   The  court computed  the amount  of          restitution  by aggregating  the face  value of  the food  stamps          handled  by appellant  (i.e., the  sums owed  by the USDA  to the                                  ____          retailers who  ultimately presented those stamps  for redemption)          and  then subtracting the  monies appellant  paid to  acquire the          stamps on the black market.                    Appellant  now challenges his  sentence.   He showcases          several assignments of error.   The first two entries  are merely                                          4          alternative formulations  of a  claim  that the  USDA engaged  in          impermissible sentencing  factor manipulation   a  claim which we          find lacking  in merit.   The other items  relate, in one  way or          another,  to the order for restitution.  Because we conclude that          the government does not qualify for statutory  restitution on the          facts  of this case, we need not address the remaining challenges          to the restitution order.          II.  SENTENCING FACTOR MANIPULATION          II.  SENTENCING FACTOR MANIPULATION                    The  doctrine of  sentencing factor  manipulation is  a          kissing  cousin of the doctrine of entrapment.  See United States                                                          ___ _____________          v. Connell,  960 F.2d 191, 194 (1st Cir. 1992) (coining term).  A             _______          determination  as  to  whether  improper  manipulation  exists is          ordinarily  a  factbound  determination  subject  to  clear-error          review.  See United States  v. Brewster, 1 F.3d 51, 54  (1st Cir.                   ___ _____________     ________          1993); Connell, 960 F.2d at 193.                 _______                    Though  phrased in  various  ways,  appellant's  theory          boils  down   to  an   assertion  that  the   USDA  revived   the          investigation, after soft-pedaling it for four months, not with a          view toward bringing the  conspirators to heel, but for  the sole          purpose  of  boosting  appellant's  offense  level  (and,  hence,          ensuring  a  prison  sentence).    In  support  of  this  theory,          appellant  notes  that  the GSR  rose  once  the  amount of  loss          exceeded  $20,000, see  U.S.S.G.  2F1.1(b)(1)(E);  that the  last                             ___          transaction, which exposed him  to this increase by bringing  the          amount of loss  over the  $20,000 mark, was  superfluous, as  the          government  had him dead to rights four months earlier; and that,                                          5          as  soon as the government reached the $20,000 plateau, it halted          the sting.                    To  be sure, the sequence of events is suggestive   but          there  is another side to the story.   By the USDA's account, the          press  of   other  agency  business   necessitated  a   temporary          suspension of  the investigation  following a  sale  on July  20,          1992.   The hiatus ended  four months later  because the agency's          workload  had eased  and the  government  needed proof,  beyond a          reasonable   doubt,   of   appellant's  conspiratorial   intent.2          Moreover, the USDA was hoping, based on appellant's allusions  to          a supposed business partner, to land a bigger fish.                    The   prosecution   also   suggests  that   appellant's          predisposition  to deal in food  stamps on a  long-term basis, as          evidenced  by  his  incessant  demands for  more  stamps  at more          frequent intervals,  undermines his claim that  he was blindsided          by unfairly  manipulative conduct.   Although the  district court          made an express, fully  warranted finding that appellant remained          ready, willing, and eager to continue dealing bootleg food stamps          indefinitely and  on an escalating scale,  the government's point          is  nonetheless  of modest  relevance.    When an  accusation  of          sentencing  factor  manipulation   surfaces,  the  judicial  gaze          should,  in  the   usual  case,  focus  primarily     though  not                                        ____________________               2On this scenario, the final  transaction assumed particular          importance because  previous deals had been  conducted from afar,          and, without  a face-to-face  encounter, the government  might be          hard pressed to verify appellant's identity in court.  Cf., e.g.,                                                                 ___  ____          B.  Franklin, Poor  Richard's Almanac  (1758) (warning  that "for                        _______________________          want of a nail the shoe is lost").                                          6          necessarily  exclusively     on   the  government's  conduct  and          motives.3  See  Brewster, 1  F.3d at 55  n.5 (explaining that  an                     ___  ________          inquiry  into sentencing  factor manipulation  should concentrate          more  on  the  government's  activity  than  on  the  defendant's          predisposition); see also Connell, 960 F.2d at 194.                           ___ ____ _______                    Undercover   operations   comprise   a  valuable,   and          generally lawful, weapon in  the government's armamentarium.  See                                                                        ___          Connell,  960  F.2d at  194.   Thus,  courts should  proceed with          _______          caution in staking  out rules that will  hinder government agents          who seek lawfully to set such  ruses in motion.  See id. at  196.                                                           ___ ___          "Despite  the fact  that  undercover operations  by their  nature          involve elements of furtiveness, duplicity, and manipulation,  we          have never held that such initiatives are per se unfair.   To the                                                    ___ __          contrary, we  think  that the  Executive Branch  is free,  within          broad limits, to set  such snares for unwary criminals."   United                                                                     ______          States v. Gifford, 17 F.3d 462,  470-71 (1st Cir. 1994); see also          ______    _______                                        ___ ____          United States v. Santana, 6 F.3d 1, 5-6 (1st Cir. 1993).          _____________    _______                    We can plot no bright line to separate the government's          ordinary  conduct   in  a  conventional   sting  operation   from          extraordinary  misconduct  of   a  sort  that   might  constitute                                        ____________________               3To  be  sure, a  defendant's  predisposition,  or the  lack          thereof, may  have evidentiary  significance in an  assessment of          the government's motives and conduct.   Moreover, one can imagine          different species  of sentencing factor manipulation,  in some of          which  predisposition may  be of greater  relevance.   See, e.g.,                                                                 ___  ____          Connell,  960  F.2d at  196  (suggesting  that sentencing  factor          _______          manipulation may  include "overbearing[ing] the will  of a person          predisposed only to  committing a  lesser crime").   We need  not          probe  these  points  too  deeply,  for,  wholly  apart from  any          evidence  of  appellant's  predisposition,  the  district court's          finding that no manipulation occurred is supportable.                                          7          sentencing factor  manipulation.  We believe the  subject must be          approached on  a case-by-case basis,  albeit with due  regard for          the  potential  dangers of  sentencing  factor  manipulation, see                                                                        ___          Connell, 960 F.2d at 196.  Because the phenomenon, if it is found          _______          to  exist  in  a  particular  case,  will  operate  to  reduce  a          defendant's offense  level,  the  burden  of  showing  sentencing          factor manipulation rests with the defendant.   See United States                                                          ___ _____________          v.  Morillo, 8  F.3d 864,  871 (1st  Cir. 1993)  (stating that  a              _______          "defendant bears  the burden of proving  entitlement to decreases          in  the offense level"); United  States v. Ocasio,  914 F.2d 330,                                   ______________    ______          332-33 (1st Cir. 1990) (same; citing other cases).  As with other          fact-sensitive  sentencing issues,  see,  e.g., United  States v.                                              ___   ____  ______________          David, 940 F.2d 722,  739 (1st Cir. 1991),  cert. denied, 112  S.          _____                                       _____ ______          Ct. 908, 1298, 2301 (1992),  the burden of proof must be  carried          by a preponderance of the evidence.                    In an effort to  hoist this burden, appellant intimates          that  the  present   situation  is   inherently  susceptible   to          manipulation   and,  therefore,  gives   rise  to   a  conclusive          presumption  of official  misconduct.   We  do  not agree.    The          inquiry must proceed as  a stereotypical exercise in factfinding,          linked to an allocation of the burden of proof but uncluttered by          artificial presumptions.      Putting matters in this perspective          reveals the  fundamental weakness  in appellant's position.   The          government's explanation of  the sequence  of events,  apparently          credited by the district court,  is at least as plausible as  the          adverse inference that  appellant would  have us draw.   We  have                                          8          held,  time and again, that when a sentencing court is confronted          with  two reasonable views of  the record, and  chooses to credit          one such view rather than the other, its  choice cannot be termed          clearly  erroneous.  See, e.g.,  United States v.  Ruiz, 905 F.2d                               ___  ____   _____________     ____          499,  508 (1st Cir.  1990); United  States v.  Jimenez-Otero, 898                                      ______________     _____________          F.2d 813, 815 (1st Cir. 1990).  So here.  Consequently, the lower          court  did not  commit clear  error in  holding appellant  to the          devoir of persuasion and rejecting his claim of sentencing factor          manipulation.          III.  THE GOVERNMENT AS VICTIM          III.  THE GOVERNMENT AS VICTIM                    In  his most portentous  assignment of error, appellant          posits  that, on  the  facts of  this  case, the  USDA  is not  a          "victim" within  the meaning of the  restitutionary provisions of          the  Victim and Witness  Protection Act, 18  U.S.C.    3663-3664.          This   proposition  presents   a  pure   question  of   statutory          interpretation  and, as such, invites de novo review.  See, e.g.,                                                __ ____          ___  ____          Gifford,  17 F.3d  at 472;  Liberty Mut.  Ins. Co.  v. Commercial          _______                     ______________________     __________          Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).          ______________                           A.  Conceptualizing the Problem.                           A.  Conceptualizing the Problem.                               ___________________________                    This case  falls into  a grey  area that  separates two          established  legal  principles.    On  one  hand,  although  once          problematic,  see  infra p.  16,  it  is by  now  settled  that a                        ___  _____          government  entity (local, state,  or federal) may  be a "victim"          for purposes of the VWPA (and may be awarded restitution) when it          has   passively  suffered  harm   resulting  directly   from  the          defendant's  criminal conduct,  as  from fraud  or  embezzlement.                                          9          See, e.g., Ratliff  v. United  States, 999 F.2d  1023, 1027  (6th          ___  ____  _______     ______________          Cir. 1993)  (collecting cases); United  States v. Hand,  863 F.2d                                          ______________    ____          1100, 1103 (3d Cir. 1988) (collecting cases).  This principle has          been  applied, and  properly so,  to cases  involving  food stamp          fraud.   See, e.g., United  States v.  Dudley, 739 F.2d  175, 178                   ___  ____  ______________     ______          (4th Cir. 1984).                    On the  other hand, the federal  courts are consentient          to the effect that the government  is not a "victim" for purposes          of VWPA  (and may not be awarded  restitution) to the extent that          it incurs costs in  the clandestine provocation of a  crime that,          if carried  to fruition  under ordinary circumstances,  would not          directly  harm  the  government.4    See,  e.g.,  Gall v.  United                                               ___   ____   ____     ______          States,  ___ F.3d ___, ___ (6th Cir.  1994) [1994 U.S. App. LEXIS          ______          6869,  at *14]  (holding that  "drug buy"  money advanced  by the                                        ____________________               4Courts interpreting analogous  state statutes have  divided          on this type  of question.  For  example, some courts hold  that,          when  a government agency disburses money  in a drug sting, it is          not  a "victim"  entitled to  restitution.   See, e.g.,  State v.                                                       ___  ____   _____          Newman, 623 A.2d  1355, 1364  (N.J. 1993); People  v. Evans,  461          ______                                     ______     _____          N.E.2d 634, 639 (Ill. App. 1984); see also Evans v. Garrison, 657                                            ___ ____ _____    ________          F.2d  64,  66  (4th   Cir.  1981)  (interpreting  North  Carolina          statute); People v. Rowe,  544 N.Y.S.2d 97, 98 (App.  Div. 1989),                    ______    ____          aff'd, 554 N.E.2d 1277 (N.Y. 1990) (same, but later superseded by          _____          statute as discussed in  People v. Davis, 582 N.Y.S.  2d 249, 250                                   ______    _____          (App.  Div.  1992)).   However,  some  courts  have  held to  the          contrary.  See, e.g.,  Commonwealth v. Runion, 628 A.2d  904, 906                     ___  ____   ____________    ______          (Pa.  Super.  1993); State  v. Rios,  465  N.W.2d 611,  613 (Neb.                               _____     ____          1991);  State  v. Stallings,  342  S.E.2d  519, 521  (N.C.  1986)                  _____     _________          (distinguishing and limiting Evans v. Garrison, supra); Oregon v.                                       _____    ________  _____   ______          Pettit, 698  P.2d 1049, 1051 (Or. App. 1985); see also Montana v.          ______                                        ___ ____ _______          Fertterer,  841 P.2d 467, 473 (Mont. 1992) (applying same rule in          _________          sting directed at poaching scheme);  State v. Hernandez, 822 P.2d                                               _____    _________          1011, 1014 (Idaho App.  1991) (allowing restitution for  costs of          narcotics investigation).   Because these  cases tend to  turn on          the wording of  the statutes involved, they are  not particularly          instructive for our purposes.                                          10          government is  not recoverable under the VWPA);  United States v.                                                           _____________          Daddato, 996  F.2d 903, 905  (7th Cir. 1993)  (similar) (dictum);          _______          United States v. Salcedo-Lopez,  907 F.2d 97, 98 (9th  Cir. 1990)          _____________    _____________          (holding  that  money  used  by undercover  government  agent  to          purchase false identification documents is not recoverable  under          the VWPA); United States v. Finley, 783 F. Supp. 1123, 1127 (N.D.                     _____________    ______          Ill. 1991) (refusing  to order restitution  of funds extorted  by          defendant from undercover agent).   All four of these  cases rely          at some level on  the generality that investigatory costs  do not          constitute  a "loss" within the  purview of the  Act because such          costs are best conceived as voluntary outlays for the procurement          of evidence.5   See Gall, ___  F.3d at ___ [1994  U.S. App. LEXIS                          ___ ____          6869 at *16]; Daddato,  996 F.2d at 905; Salcedo-Lopez,  907 F.2d                        _______                    _____________          at 98; Finley, 783 F. Supp. at 1128.                 ______                    What  makes  this  case  difficult  is  that  it  falls          somewhere between  the two ends of  the spectrum.  While  we deal          with a crime  provoked by an undercover investigation,  the crime          was designed to inflict  harm on the government.   If consummated          under  circumstances  not involving  official  participation, the          crime would have  resulted in  direct loss to  the government  in          exactly  the manner  that the  government here  experienced loss.          Nonetheless, the government  instigated the particular  incidents          for which it now  claims the right  to restitution   indeed,  had                                        ____________________               5The relevant  provision of the Act  states that restitution          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."          18 U.S.C.   3663(b)(1).                                          11          there been  no official  participation, the claimed  losses would          not  have eventuated.  This means that  here, unlike in either of          the  more familiar  prototypes, the  difference between  the face          value of the food  stamps and the amount appellant  paid for them          was  both a calculated consequence of the defendant's crime and a               ____          calculated cost of the  government's investigation.  As a  result          of the  hybrid nature  of the  loss, each side  argues that  this          difficult  situation more  closely resembles  the prototype  that          favors  its  position     and  neither  argument  can  easily  be          debunked.                            B.  Statutory Interpretation.                            B.  Statutory Interpretation.                                ________________________                    We envision the task of resolving this conundrum  as an          exercise in statutory construction.   Our role, of course,  is as          interpreters of the words chosen by Congress, not as policymakers          or enlargers of congressional intent.  This role requires that we          start with the statutory text.                    1. Text.    The VWPA  states  that restitution  may  be                    1. Text.                       ____          awarded  only to  a  "victim  of  the  offense."    18  U.S.C.             3663(b)(1).  A  "victim of an offense" is defined  as "any person          directly harmed by the defendant's criminal conduct in the course          of the scheme,  conspiracy, or pattern."   Id.   3663(a)(2).   In                                                     ___          the idiom of the Act, the question we decide today is whether the          government is a "victim" in  the sense that it is "harmed  by the          defendant's criminal  conduct" when  it experiences loss  that is          the  direct,  foreseeable  consequence  both  of  the  criminal's          conduct and of  the government's own machinations.   Conceived in                                          12          this way, the question is one of first impression.6                    We  believe that  the key  phrase, "harmed  by," as  it          appears  in the VWPA,  is ambiguous.   Under  one reading  of the          phrase,  the  statute  is  satisfied  when,  as  now,  an  entity          experiences a loss directly and foreseeably caused in whole or in          part  by the criminal's conduct.  But this reading represents one          choice out of several.  For example, it is also entirely possible          that  the word "harm"  denotes "aggregate harm"    a construction          which, if adopted,  would require the  phrase to be  read with  a          view toward some type  of cost-benefit analysis.  In  that event,          the very  fact that  the government  knowingly incurred  the loss          could  be taken as signifying  that, in its  estimation, the game          was  worth the candle.  Put another  way, the fact could evidence          the government's  belief that  the overall gain    incapacitating          the  targets  of  the  investigation and  deterring  others  from          embarking on similar schemes   outweighed the out-of-pocket loss.                    A second, more  intriguing possibility is that  "harmed          by" connotes passivity.  In ordinary usage, "harm" is suffered at          the hands of another,  while "loss" may be merely  experienced or          sustained.  It  defies common  usage to envision  an entity  that                                        ____________________               6We  realize that United  States v. Dougherty,  810 F.2d 763                                 ______________    _________          (8th   Cir.  1987),   involved  substantially   identical  facts.          Nonetheless,  the   defendant  there  framed   the  legal   issue          exclusively in  terms of "loss," id.  at 773.  We  agree with the                                           ___          Dougherty court  that the USDA incurs  a loss in the  course of a          _________          food stamp sting.   See id.  But this conclusion, standing alone,                              ___ ___          does not  mean that the USDA  may recover in restitution  for the          loss when  it stems from the  cut-rate sale of food  stamps by an          authorized government agent in the course of a sting.   Under the          VWPA, the existence of "loss" does not end the requisite inquiry,          but, rather, marks its midpoint.                                          13          planned and provoked a crime as a victim in the same sense that a          passive sufferer  of harm is  a victim, notwithstanding  that the          entity  may   have  experienced  loss.     Courts  cannot  ignore          legislative  decisions  to use  one  particular  word instead  of          another.   See, e.g., United States ex rel. Springfield Term. Ry.                     ___  ____  ___________________________________________          Co. v. Quinn, 14  F.3d 645, 653-54 (D.C. Cir.  1994) (attributing          ___    _____          significance  to Congress's  choice  of words).   Since  Congress          could  have employed a more neutral construct in framing the Act,          itschoice of a phrase connoting passivity may well be meaningful.                    A  statute is ambiguous if it reasonably can be read in          more than one way.  See United States v. O'Neil, 11 F.3d 292, 297                              ___ _____________    ______          (1st  Cir.  1993).   Here,  the  alternative interpretations  are          sufficiently   plausible   to  render   the   statutory  language          ambiguous.   Consequently,  we must  search for  guidance in  the          legislative history  and beyond.   See id. at  297-98 (describing                                             ___ ___          standard protocol for statutory interpretation).                    2.  Legislative History.  The VWPA was first enacted in                    2.  Legislative History.                        ___________________          1982 in an  effort to  afford greater protection  to victims  and          witnesses, and  to enhance their stature in  the criminal justice          system.   See S. Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted                    ___                                           _________          in   1982  U.S.C.C.A.N.  2515,  2515-16.     The  object  of  the          __          restitution  provisions in  particular was  to help  "restore the          victim to  his or her prior  state of well-being."   Id. at 2536.                                                               ___          Although the  word "victim" was  not precisely defined  in either          the original Act or  its accompanying commentary, it  is pellucid          that,  in the  eyes of  the  enacting Congress,  the prototypical                                          14          victim  was a  private individual.   The  preamble to  the Senate          Report laments that the  victim is all too often  the "`forgotten          person'" in the legal process.  Id. at 2516.  With  regard to the                                          ___          restitution  provisions, the  only specific  example of  a victim          describes an elderly lady  who, after being mugged, had  to forgo          surgery  because the  prosecutors did  not seek restitution  in a          sufficient amount.  See id. at 2536-37.                              ___ ___                    Absent  a clearly  marked trail  leading in  some other          direction, courts should presume that words used in a statute are          to  be  given  their ordinary  meaning.    See  United States  v.                                                     ___  _____________          Dawlett, 787 F.2d 771, 774 (1st Cir.  1986).  Here, the signposts          _______          embedded in the legislative  history indicate quite vividly that,          in  enacting the VWPA, Congress used the  word "victim" in such a          way.  A victim is commonly considered to be a passive sufferer of          harm,  that is, someone who  is "tricked, duped,  or subjected to          hardship . . .  ."  Webster's Third New  International Dictionary                              _____________________________________________          2550 (1981).  Read against this lexicographical backdrop, calling          the organization that sets up a sting and carries it out a victim          is like calling the rabbit who lurks in Houdini's hat a magician.                    To be sure, Congress amended the VWPA in 1990, adding a          statutory  definition of "victim" as one  "directly harmed by the          defendant's criminal conduct."  18 U.S.C.   3663(a)(2).  However,          we resist the conclusion that, by specially  defining "victim" on          this occasion, Congress meant to stray far enough from the common          meaning  of  the  word to  eliminate  the  element of  passivity.          Rather, the legislative history attests that highly idiosyncratic                                          15          concerns motivated Congress's action.                    The amendment  first surfaced  in the House  and Senate          versions of the proposed "Banking Law Enforcement Act"  under the          caption, "Enhancement of Ability  to Order Restitution in Certain          Fraud  Cases."  See  136 Cong. Rec.  H 5996 (daily  ed., July 31,                          ___          1990); 136  Cong. Rec. S 18322 (daily ed., Nov. 2, 1990).  It was          then  incorporated  into, and  passed as  part of,  the sprawling          Crime Control Act of 1990, P.L. 101-647, 104 Stat. 4789.  In that          incarnation,  the  definition  comprised one  of  nine  disparate          provisions  grouped  in  a  single title  under  the  appellation          "Banking Law Enforcement."  In floor remarks, the sponsor of that          title  explained   that  its   "purpose"  was  "to   enhance  the          enforcement  powers of the Department  of Justice and the federal          financial   institution  regulatory  agencies   with  respect  to          unlawful   activities   affecting  federally   insured  financial          institutions."  136  Cong. Rec. E 3684 (daily ed.,  Nov. 2, 1990)          (remarks of Rep. Schumer).                    We think  that this history, coupled  with the division          of opinion that  originally existed  in the courts  on whether  a          government entity could ever  be a "victim" under the  Act, makes                                  ____          it  highly  probable  that  the  newly  emergent  definition  was          intended to accomplish  two things.   Broadly, the amendment  was          meant to clarify that, in appropriate cases, a government entity,          say, FSLIC or  FDIC, could  be regarded as  a "victim" under  the          Act.   More narrowly, the  amendment was designed  to clarify the          government's entitlement  to restitution for  losses suffered qua                                                                        ___                                          16          insurer as a  consequence of savings-and-loan  fraud, that is  to          say, as  a passive  sufferer of  the harm  caused by such  fraud.          Although  special  definitions  sometimes  are  taken  wholly  to          supplant common usage, see 2A Sutherland Statutory Construction                                   ___    _________________________________          47.28 (5th ed. 1992), this special definition is not of that ilk;          it strengthens,  rather than dissipates,  the force of  our point          anent common usage.   In  other words,  notwithstanding the  1990          amendment, the presumption in favor of ordinary meaning continues          to apply  in this  case.   And the ordinary  meaning of  the word          "victim" poses an  obvious problem for  the government's view  of          the VWPA universe.                    To sum up, nothing in the legislative history of either          the organic Act  or its amendments indicates that losses incurred          in government  sting operations  should be subject  to recoupment          under  the  VWPA.    Conversely,  there  is  some  basis  in  the          legislative history of the  VWPA for believing that  the enacting          and amending Congresses both  viewed the word "victim" in  a more          restrictive manner than  the government  urges here.   We do  not          mean to suggest that the benefits  of the VWPA should be confined          to widows and  orphans; but we  are constrained to note  that, as          the status of victimhood is expanded beyond passive  sufferers of          harm, we move  further and  further away from  the concerns  that          drove Congress to pass the statute.                               C.  The Rule of Lenity.                               C.  The Rule of Lenity.                                   __________________                    We  recognize that the  Act's language  and legislative          history,  though suggestive,  do not  speak unequivocally  to the                                          17          question at hand.  In light of this uncertainty, we have examined          more  recondite sources.  We confess, however, that our quest has          proven unrewarding; by and  large, the government's claim resists          analogy.   We have  considered analogies  from the doctrines  and          case  law  of  civil  restitution,  criminal  restitution through          probationary  conditions,  tort  law,  and  a  variety  of  other          sources.7  None offer compelling guidance.                    When all else fails to bring sufficient lucidity to the          meaning of a penal statute, the rule of lenity casts the decisive          vote.  That rule, which mandates the resolution of ambiguities in          a criminal statute favorably to  the defendant, see, e.g., United                                                          ___  ____  ______          States v. Bass,  404 U.S.  336, 347-49 (1971),  is "a  background          ______    ____          principle that properly  comes into  play when, at  the end of  a          thorough  inquiry,  the meaning  of  a  criminal statute  remains          obscure,"   O'Neil, 11  F.3d at  301  n.10; see  also Chapman  v.                      ______                          ___  ____ _______          United States, 111 S. Ct. 1919, 1926 (1991).          _____________                    This is not only the proper time to invoke  the rule of          lenity, but  also the proper place; after all, the rule of lenity          played  the  decisive role  on the  one  occasion that  the Court          ventured to interpret the VWPA.  See Hughey v. United States, 495                                           ___ ______    _____________                                        ____________________               7The  interested reader  may wish  to consult  various works          that afford  broad-gauged historical perspectives on the subject.          See,  e.g.,  Stephen  Schafer,  Compensation  and Restitution  to          ___   ____                      _________________________________          Victims  of Crime  (2d  ed. 1970);  Richard  E. Laster,  Criminal          _________________                                        ________          Restitution:  A Survey of its Past History and an Analysis of its          _________________________________________________________________          Present Usefulness, 5 U. Rich. L. Rev. 71 (1970).          __________________                                          18          U.S.  411 (1990).8   When "the  statutory language  regarding the          scope  of   a  court's   authority  to  order   restitution  [is]          ambiguous," the Court  explained   in  that  case,  "longstanding          principles   of   lenity  . .  . preclude  our resolution  of the          ambiguity against  petitioner .  . .  ."   Id. at  422 (citations                                                     ___          omitted).                    We retrace the Court's steps here.  On the principle of          lenity, we resolve  lingering doubts as to the  statute's meaning          in favor  of the defendant.   We hold  as follows:   a government          agency that  has lost money as  a consequence of a  crime that it          actively provoked in the course  of carrying out an investigation          may not  recoup that money  through a  restitution order  imposed          under the VWPA.                    We add  an  eschatocol of  sorts.   As courts  reaching          similar conclusions have observed,  see, e.g., Salcedo-Lopez, 907                                              ___  ____  _____________          F.2d  at 99;  Finley,  783 F.  Supp. at  1129,  other methods  of                        ______          recovery  remain  open  to   the  government,  notably  fines  or          voluntary agreements for restitution incident to  plea bargains.9                                        ____________________               8While  Hughey's precise  holding,  denying restitution  for                       ______          losses  resulting  from  offenses   other  than  the  offense  of          conviction, has  been superseded partially by  the 1990 amendment          to  18 U.S.C.   3663(a)(3),  this development does  not throw the          slightest   doubt  on  Hughey's   hermeneutical  approach.    We,                                 ______          therefore, regard Hughey as  impeccable authority for the purpose                            ______          at hand.               9Courts  are  divided  on  whether  drug  buy  money  may be          recovered in  restitution as  a condition of  supervised release.          Compare Daddato, 996 F.2d  at 906 (interpreting 18 U.S.C.    3583          _______ _______          to  permit  restitution  of drug  buy  money  as  a condition  of          supervised  release) with Gall, ___  F.3d at ___  [1994 U.S. App.                               ____ ____          LEXIS  at  *14]  (implicitly  interpreting same  statute  as  not          permitting a court  to require restitution of drug buy money as a                                          19          Therefore, the main practical consequence of our holding, in  the          long term, is that  the awards to the government in "sting" cases          will be  influenced not only by  the amount of loss,  but also by          other  factors, see  18  U.S.C.    3572(a).   Though  in  a given                          ___          situation the resulting penalty may be smaller or larger than the          foregone  restitutionary  award,  the principle  of  interpretive          integrity will in all events be honored.          IV.  CONCLUSION          IV.  CONCLUSION                    We need go no further.  We direct the district court to          modify  the  defendant's  sentence   by  deleting  the  award  of          restitution; and, with that  modification, we affirm the judgment          below.          Affirmed as modified.          Affirmed as modified.          ____________________                                        ____________________          condition of supervised release); see also id. at *17-*20 (Jones,                                            ___ ____ ___          J., concurring)  (criticizing Daddato).   We do  not plumb  these                                        _______          depths, as the district court neither imposed a fine nor attached          a special monetary condition to the term of supervised release.                                          20
