                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-13-1994

Gov't V.I. v. Davis
Precedential or Non-Precedential:

Docket 93-7299




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               UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                         ___________

                   Nos. 93-7299 and 93-7300
                         ___________


     GOVERNMENT OF THE VIRGIN ISLANDS

                       vs.

     ASTARTE DAVIS,

                              Appellant, No. 93-7299


     UNITED STATES OF AMERICA

                       vs.

     RICE, ASTARTE

             Astarte Davis,

                              Appellant, No. 93-7300

                         ___________


      APPEAL FROM THE UNITED STATES DISTRICT COURT
         FOR THE DISTRICT OF THE VIRGIN ISLANDS

          (D.C. Criminal Nos. 88-00132 and 88-00403)

                         ___________


                   ARGUED DECEMBER 1, 1993

BEFORE:    MANSMANN, HUTCHINSON, and LEWIS, Circuit Judges.

                  (Filed December 13, 1994)

                         ___________
Thurston T. McKelvin (ARGUED)
Office of the Federal Public Defender
Post Office Box 1327
Charlotte Amalie, St. Thomas
USVI 00804-1327

          Attorney for Appellant

David M. Nissman (ARGUED)
Office of the United States Attorney
1108 King Street, Suite 201
Christiansted, St. Croix
USVI 00820

          Attorney for Appellee


                            ___________

                        OPINION OF THE COURT
                            ___________



LEWIS, Circuit Judge.

          On December 21, 1988, Astarte Davis was charged in a

28-count information with forgery, grand larceny, perjury,

obtaining money under false pretenses, filing false documents,

maintaining a fraudulent civil action, preparing false evidence

and making false statements to the government in Government of
the Virgin Islands v. Astarte Davis, D.C. VI Crim. No. 88-132

(the "V.I. Case").   Davis was also indicted on five counts of

mail fraud in United States v. Astarte Davis, D.C. VI Crim. No.

88-403 (the "U.S. Case").

          On October 10, 1991, Davis pleaded guilty to Counts One

(Conspiracy to Defraud, in violation of Virgin Islands Code,

Title 14, Section 551); Two (Forgery on Real Property Deed, in

violation of Virgin Islands Code, Title 14, Section 791(1));
Twenty-Four (Offering False Evidence in a Civil Case, in

violation of Virgin Islands Code, Title 14, Section 1504);

Twenty-Five (Perjury, in violation of Virgin Islands Code,

Title 14, Section 1541); and Twenty-Six (Selling Property

Obtained Unlawfully, in violation of Virgin Islands Code,

Title 14, Section 2101(a) in the V.I. Case; and Count Two (Mail

Fraud, in violation of United States Code, Title 18,

Section 1341) of the indictment in the U.S. Case.     Davis also

pleaded guilty to Making False Statements in violation of

18 U.S.C. § 1001 (§ 1001) and Failure to Appear in violation on

18 U.S.C. § 3146 (§ 3146).1

          Both the V.I. Case and the U.S. Case involved Davis'

efforts to defraud the estate of James Merrills Rice (Rice

estate) of more than one million dollars worth of real and

personal property.2   Specifically, Davis prepared a false and

fictitious last will and testament of James Rice purporting to

bequeath to her the bulk of the Rice Estate; altered Rice's power

of attorney, giving herself full and complete control over his

property, assets and affairs; and prepared a false warranty deed

for the purpose of facilitating the transfer of valuable realty

owned by Rice to herself.     Using the forged documents, Davis

transferred title for or otherwise unlawfully appropriated or

1
 .   These charges stemmed from two related cases:    D.C. VI Crim.
Nos. 88-133 and 91-30.
2
 .   James Rice was Davis' alleged common-law husband who
disappeared in July 1986. The government's theory was that Davis
either murdered Rice or took advantage of his disappearance in
order to convert his assets.
conveyed personal property belonging to Rice which was valued at

more than $120,000.    Davis also forged Rice's signature on a

series of checks which totalled $10,985 and entered into

contractual agreements concerning Rice's boat, the Fish Eagle,

assigning to herself a percentage of the profits earned by the

venture.

            In addition to the other illegal activities Davis stood

convicted of by virtue of her plea in the V.I. Case, she filed a

lawsuit against a number of entities and individuals, including

Rice, to quiet title to property she had fraudulently obtained.

In preparation for that lawsuit, Davis forged letters, deeds and

other documents to make it appear as though James Rice was alive

and that he had given all of his worldly possessions to her and

her sons.    Davis presented the false documents at a deposition

during which she also gave false testimony.

            With respect to the U.S. Case, Davis prepared forged

documents instructing the Guardian Savings Bank in Houston,

Texas, to transfer two one hundred thousand (100,000) dollar

certificates of deposit into an account held by the Icon

Corporation, which was wholly-owned by Davis and her sons.

            As a result of her guilty pleas, on January 31, 1992,

the District Court of the Virgin Islands, Division of St. Croix,

sentenced Davis to 10 years imprisonment and five years probation

in connection with the V.I. Case, and 15 months imprisonment in
connection with the U.S. Case.3   In addition, the court ordered

her to pay restitution in the amount of $547,000.4

          Following the district court's denial of her motions

for reduction of sentence and for reconsideration, Davis

appealed, claiming that the district court had failed to make

specific findings with respect to:     (1) the amount of loss

sustained by the Rice estate as a result of the offenses; (2) her

own financial resources and the relationship between the amount

of restitution imposed, and (3) any loss caused by the underlying

offenses for which she was convicted.     Upon the government's

request, we remanded the case for additional fact-finding in

connection with the district court's restitution order.

Government of the Virgin Islands v. Davis, Nos. 92-7472, 92-7473

and 92-7474 (3d Cir. Jan. 20, 1993).

          On remand, the district court conducted an evidentiary

hearing and reduced the amount of restitution from $547,000 to

$297,246.78.   Of the total amount, $229,282.78 was awarded

pursuant to Title 5, Virgin Islands Code, § 3721 (1993) (V.I.C.

§ 3721 or V.I. restitution statute), and the remaining $67,964

was awarded under the Victim and Witness Protection Act (VWPA),

18 U.S.C. §§ 3663-3664.   Davis now appeals the modified



3
 .   Davis also received a two-year sentence for the § 1001
violation.
4
 .        The presentence report indicated that the proper amount
of restitution owed to the victim -- the estate of James Rice --
was $1,812,000.00. Both Davis and the government agreed that the
figure was too high and stipulated to the reduced amount.
restitution order.   We have jurisdiction over this appeal

pursuant to 28 U.S.C. § 1291.

                                I.

          Davis raises three issues on appeal:   (1) that the

district court erred by including legal fees which the Rice

estate incurred to recover funds which Davis had fraudulently

obtained, as well as lost interest, in her obligation to the Rice

estate; (2) that the district court erred in finding that she had

the present or future means to comply with the restitution order,

and (3) that the district court improperly ordered restitution

under the V.I. restitution statute.5

          Our review of whether a district court correctly

imposed an order of restitution is bifurcated:   we exercise

plenary review over whether the award is permitted under law, but

we review the amount of the award for abuse of discretion.

United States v. Badaracco, 954 F.2d 928, 942 (3d Cir. 1992).

          Because we conclude that restitution ordered pursuant

to the VWPA may not include legal expenses, we will reverse the

district court's inclusion of $27,964 in such fees in the amount

of restitution ordered under the VWPA.   We will, however, affirm

the district court's order with respect to the inclusion of

interest, and will likewise affirm the award made pursuant to the

V.I. restitution statute in its entirety.

5
 .   Davis further contends that the district court erred by
admitting as evidence at sentencing the affidavit of Kathleen
Clements, James Rice's daughter and the court-appointed executor
of the Rice estate. We have considered this argument and find it
to be without merit.
                               II.

          We first address Davis' assertion that the district

court improperly included legal fees and lost interest in her

restitution obligations to the Rice estate.

                                A.

          As the government correctly points out, the restitution

award in the V.I. Case was ordered pursuant to the V.I.

restitution statute and not the VWPA.   That point, which Davis

fails to recognize, defeats her argument with regard to the

$95,997.78 in legal expenses included in the restitution ordered

in the V.I. Case.   This expenditure by the estate arose from the

fraud Davis had perpetuated on it, and was incurred in the

estate's effort to recover losses it had sustained as a result of

the offenses to which Davis pleaded guilty.   The V.I. restitution

statute provides that "the court shall require restitution

designated to compensate the victim's pecuniary loss resulting

from the crime to the extent possible . . . ."   5 V.I.C. § 3721

(emphasis added).   We believe that the district court

appropriately included legal fees in the order of restitution

made pursuant to the V.I. restitution statute because the

expenses clearly represent pecuniary losses incurred by the

estate, and these losses are directly attributable to Davis'

crimes against the estate.

                                B.

          The amount of restitution ordered in the U.S. Case

included compensation for legal expenses incurred by the Rice

estate in litigation to recover the balance of the funds in
Rice's account in the Guardian Savings of Houston, Texas.

Guardian Savings had frozen Rice's account after discovering that

Davis had fraudulently withdrawn two certificates of deposit,

each worth one hundred thousand (100,000) dollars, and deposited

them into an account held by the Icon Corporation.

          In defining the substantive boundaries of compensation

in cases where restitution is ordered for offenses resulting in

the loss of property, § 3663(b)(1) of the VWPA provides:

          (b)   The order may require that such
                defendant --

                (1)   in the case of an offense resulting
                      in damage to or loss or destruction
                      of property of a victim of the
                      offense --

                      (A)   return the property to the
                            owner . . .; or

                      (B)   if return of the property
                            under subparagraph (A) is
                            impossible, impractical, or
                            inadequate, pay an amount
                            equal to the greater of --

                            (i)   the value of the property
                                  on the date of the
                                  damage, loss, or
                                  destruction, or

                            (ii) the value of the property
                                 on the date of
                                 sentencing, less the
                                 value (as of the date the
                                 property is returned) of
                                 any part of the property
                                 that is returned.


          This section has been construed to authorize

"restitution in an amount pegged to the actual losses suffered by
the victims of the defendant's criminal conduct."   United States

v. Barany, 884 F.2d 1255, 1260 (9th Cir. 1989).   Furthermore, the

obligation must be based upon losses directly resulting from such

conduct.   Id. at 1261 (emphasis added).

           Most courts which have analyzed the meaning of "losses

directly resulting" from the offense have interpreted this

language narrowly.   In fact, the Fourth, Fifth, Seventh and Ninth

and Tenth Circuits have specifically held that restitution under

the VWPA cannot include consequential damages such as attorneys'

fees.   See United States v. Mullins, 971 F.2d 1138, 1147 (4th

Cir. 1992) (holding that an award of restitution under the VWPA

cannot include attorneys' and investigators' fees expended to

recover the lost property); United States v. Mitchell, 876 F.2d

1178, 1184 (5th Cir. 1989) (holding that restitution of

attorneys' costs expended to recover from an insurance company

are not authorized by the VWPA); United States v. Arvanitis, 902

F.2d 489, 497 (7th Cir. 1990) (holding that restitution for

consequential damages, such as legal fees expended to investigate

a fraudulent insurance claim, are not available under the VWPA);

Barany, 884 F.2d at 1261 (holding that attorneys' fees and costs
spent to defend against a civil suit are not recoverable under

the VWPA); and United States v. Patty, 992 F.2d 1045, 1049 (10th

Cir. 1993) (holding that attorneys' fees incurred by victim to

recover his property are not directly related to the defendant's

criminal conduct and are thus not recoverable in restitution

under VWPA).
          The government argues that our decision in United

States v. Hand, 863 F.2d 1100 (3d Cir. 1988) is directly on

point, and requires us to conclude that the inclusion of

attorneys' fees represents a legitimate means of accomplishing

the far-reaching principles underlying the VWPA.    In Hand, we

upheld an award of restitution which, in part, compensated the

United States Attorneys' Office for time and resources spent

prosecuting a case which resulted in a mistrial because of juror

misconduct.   Hand, 863 F.2d at 1103.   Although at first glance

our decision in Hand arguably appears to control the issue of

whether legal expenses may be included in a restitution award

made under the VWPA, as we explain below, the facts of Hand were

unique and are distinguishable from the matter before us.

Moreover, despite our reliance in that case on comments in the

legislative history which the government believes supports its

position here, those comments can only be considered dicta,

although we hasten to note that the conclusion we reach here is

actually consistent with the result we reached in Hand in any

event.

          Patricia Hand was a juror in United States v.
Militello, a complex narcotics conspiracy case involving multiple

defendants.   During the seven-week trial, Hand and one of the

defendants, George Pepe, developed a personal relationship.       The

jury returned guilty verdicts against five co-defendants, found

one not guilty, and deadlocked 11 to 1 in favor of conviction

with respect to Pepe.    Hand was the only juror who did not vote

for Pepe's conviction.   Hand's conduct was brought to the
attention of the trial judge when the five co-defendants whom the

jury had convicted filed motions for a new trial, claiming that

they had been denied due process because of improper contacts

between Hand and Pepe.   Two of the co-defendants withdrew their

motions and pleaded guilty to lesser charges, and the court

vacated the convictions of the other three.

           Hand subsequently pleaded guilty to contempt of court

in violation of 18 U.S.C. § 401.   As a special condition of her

sentence, she was ordered to pay $46,850 in restitution,

approximately $35,000 of which represented losses sustained by

the United States Attorneys Office as a result of Hand's

misconduct.    Hand appealed the restitution order and we affirmed.

In concluding that the damages claimed by the government were

neither remote nor speculative, we relied primarily on the

legislative history of the VWPA.   Significantly, we observed that

"in promulgating the VWPA, Congress intended to `insure that the

wrongdoer [be] required to the degree possible to restore the

victim to his or her prior state of well-being."   Hand, 863 F.2d

1103.   We stated further that:
           There is no doubt that compensation for such
           expenditures is permissible under the VWPA,
           given that Congress desired for offenders "to
           undue the financial harm they have done
           [their victims]."


Hand, 863 F.2d at 1104-1105 (quoting S.Rep. No. 532, 97th Cong.,

2d. Sess. 30, reprinted in 1982 U.S.Code Cong. & Admin. News

2515, 2536).
          It is something considerably less than hyperbole to

characterize the above-cited comments that appear in the

legislative history of the VWPA as "sweeping."   These comments

aside, however, there is no doubt that the VWPA does not

necessarily authorize a sentencing court to order restitution in

an amount that represents a victim's entire loss.   See Hughey v.

United States, 495 U.S. 411, 413 (1990).   Congress simply did not

write the VWPA to fully satisfy the more ambitious purpose

expressed in the legislative reports upon which Hand relies.     The

plain and unambiguous language of § 3663(b)(1) clearly limits the

amount of restitution to the value of the lost property.

Moreover, restitution ordered pursuant to the VWPA cannot

compensate for losses which do not directly result from the

offense of conviction, id.; United States v. Seligsohn, 981 F.2d

1418, 1421 (3d Cir. 1992) (adopting Hughey and stating, "we

should take the Supreme Court at its word that the count of

conviction controls the amount of restitution"), and this

observation is wholly consistent with the result we reached in

Hand, despite Hand's reliance on a more expansive reading of the

VWPA, one which the government urges us to adopt here.   It is

important that we revisit our primary focus in Hand, which was
that the government had lost five "hard-won convictions," as a

direct result of Hand's misconduct.   Hand, 863 F.2d at 1104.    But

for Hand's criminal conduct, the government would not have lost

those convictions.   Of critical importance is the fact that Hand

was not required to pay for the expenses the government incurred

in retrying the co-defendants, nor did she have pay restitution
to cover the cost of her own conviction; instead, she was only

ordered to pay compensation for what the court viewed as the

"property" the government lost as a result of Hand's crime,

namely, the convictions.   Thus, not even Hand attempts to give

full effect to the expressions of congressional intent cited

therein.

           The plain language of the VWPA, as well as the

reasoning adopted by other courts of appeal, leads us to conclude

that absent specific statutory authority for an award of

attorneys' fees, the amount of restitution ordered under the VWPA

may not include compensation for legal expenses unless such costs

are sustained as a direct result of the conduct underlying the

offense of conviction.

           Accordingly, we will reverse the district court's

decision to include legal fees as part of the restitution ordered

under the VWPA.   Although such fees might plausibly be considered

part of the estate's losses, expenses generated in order to

recover (or protect) property are not part of the value of the

property lost (or in jeopardy), and are, therefore, too far

removed from the underlying criminal conduct to form the basis of

a restitution order.

                                C.

           We now turn to the district court's inclusion in the

restitution amount the interest lost on certificates of deposit

that were fraudulently acquired by Davis.   Although we have

previously held that the VWPA implicitly authorizes the district

court to include postjudgment interest in a restitution order,
United States v. Kress, 944 F.2d 155, 160 (3d Cir. 1991), we have

not considered the issue this case raises:     whether § 3663(b)(1)

authorizes the inclusion of prejudgment interest in a restitution

award.     See Kress, 944 F.2d at 159 n.7 (specifically reserving

the question of whether prejudgment interest can be properly

awarded under the VWPA).

            We have, however, addressed the issue of prejudgment

interest in the context of restitution ordered under the Federal

Protection Act (FPA), 18 U.S.C. § 3651 (repealed November 1,

1987), which authorized a sentencing judge to order "restitution

and reparation to aggrieved parties for actual damage or loss" as

a term of probation.    See United States v. Sleight, 808 F.2d 1012

(3d Cir. 1987).    In Sleight, in concluding that prejudgment

interest should not be included absent specific statutory

authority, we based our decision on the fact that restitution

under the FPA is imposed as a condition of probation and is,

therefore, analogous to a criminal penalty.     Sleight, 808 F.2d at

1020-21.    It is, of course, well established that criminal

penalties do not bear interest.     Id. at 1020 (citing Rodgers v.
United States, 332 U.S. 371, 376 (1947) and Pierce v. United

States, 255 U.S. 398 (1921)).

            Although the VWPA is likewise silent with respect to

prejudgment interest, that silence need not be interpreted as

"manifesting an unequivocal congressional purpose that the

obligation shall not bear interest."     Kress, 944 F.2d at 159

(quoting Rodgers, 332 U.S. at 373).    Furthermore, restitution

ordered under the VWPA is compensatory rather than punitive.
Awards are designed to compensate victims for their losses,

rather than to serve retributive or deterrent purposes.    See

United States v. Rochester, 898 F.2d 971, 983 (5th Cir. 1990).

We do not believe that the inclusion of prejudgment interest is

comparable to a criminal penalty.     Rather, it is an aspect of the

victim's actual loss which must be accounted for in the

calculation of restitution in order to effect full compensation.

Lost interest translates into lost opportunities, as it reflects

the victim's inability to use his or her money for a productive

purpose.   Accordingly we find that the district court's

incorporation of prejudgment interest in the restitution amount

was proper to effect full compensation.

                               III.

           Davis also contends that the district court erred in

concluding that, in spite of her indigence at the time of

sentencing, she stood a realistic chance of acquiring the ability

to pay the amount of restitution ordered.

           We have held that in arriving at a proper amount for

purposes of restitution, a district court must make factual

findings concerning (1) the amount of loss sustained by the

victims, (2) the defendant's ability to make restitution, and

(3) "how the amount of . . . restitution imposed . . . relate[s]

to any loss caused by the conduct underlying the . . . offenses

for which [defendant] remain[s] convicted."    United States v.

Logar, 975 F.2d 958, 961 (3d Cir. 1992) (citations omitted).

Although "restitution may not be ordered in an amount that a

defendant cannot realistically pay," Sleight, 808 F.2d at 1021,
the suggestion that a court cannot impose an order for

restitution on an indigent defendant is, quite simply, without

foundation.   Logar, 975 F.2d at 962.    We recognize that there may

be a significant difference between a defendant's financial

condition at sentencing and his or her ability to repay in the

future losses sustained by the victim.    As a result, we have

instructed district courts to make specific findings of fact not

only concerning a particular defendant's current financial

status, but also as to his or her capacity to earn income in the

future, before arriving at an appropriate amount of restitution.

Id.

           The possibility of repayment, however, cannot be based

solely on chance.   Id. (citing United States v. Rogat, 924 F.2d

983, 985 (10th Cir.), cert. denied, 111 S.Ct. 1637 (1991)).      Cf.

United States v. Seale, 20 F.3d 1279, 1286 (3d Cir. 1994) ("In

attempting to predict future ability to pay, district courts must

be realistic and must avoid imposing a fine when the possibility

of a future ability to pay is based merely on chance.").    A

sentencing court must fashion an obligation that a defendant

realistically can be expected to fulfill.    See Sleight, 808 F.2d
at 1021.   Thus, in Logar, we concluded that:
           if it is realistic that a defendant may
           inherit a substantial sum from a well-off
           relative or has a story to write that will be
           a bestseller, then the district court would
           be entitled to consider these possible
           additional sources of income in fashioning a
           restitution order.


Logar, 975 F.2d at 964.
          In this case, the district court correctly considered

Davis' potential for future income based on her then-pending

probate claims against the Rice estate and her book, "Astarte: A

True Story,"6 in ordering restitution.   Not only is Davis a named

beneficiary in Rice's handwritten will which has been admitted to

probate in the Superior Court of California, she has challenged

that will, claiming that somewhere among her effects is a more

recent will which leaves her the bulk of the estate.   She also

claims that as Rice's common-law wife she is entitled to share in

his estate, which is valued at more than $800,000.   Based on the

above, we conclude that Davis has a better-than-chance

opportunity for future earnings, and that the district court's

determination to that effect was correct.   It follows, then, that

the district court in this case properly balanced the victim's

interest in compensation against Davis' financial resources and

exercised sound discretion in determining an appropriate amount

of restitution.




6
 .   Davis' story about her illegal activities has already been
the subject of two nationally syndicated television news magazine
programs.
                                 IV.

             Finally, Davis argues that the district court erred in

ordering restitution in the V.I. Case pursuant to the V.I.C.

§ 3721.    The V.I. restitution statute provides in pertinent part:
            Restitution to Victims: . . . If the court
            places the person on probation, the court
            shall require restitution designed to
            compensate the victim's pecuniary loss
            resulting from the crime to the extent
            possible, unless the court finds there is a
            substantial reason not to order restitution
            as a condition of probation.


5 V.I.C. § 3721.

             Davis correctly claims that probation is a prerequisite

of an order of restitution and that if a defendant does not

receive probation, restitution cannot be imposed.    We note,

however, that in addition to receiving a ten-year term of

imprisonment in the V.I. Case, Davis was also placed on probation

for a period of five years.     In fact, the very obligation she

challenges was ordered as a condition of her probation.    Thus,

the district court clearly acted with authority when it ordered

Davis to pay restitution to the Rice estate.

                                  V.

             For the reasons set forth above, we will affirm, in its

entirety, the district court's restitution order in the V.I.

Case.     In addition we will affirm the district court's order of

restitution in the U.S. Case, made pursuant to the VWPA, in all

respects with the exception of its inclusion of legal fees.     That

portion of the order will be vacated, and the matter remanded to
the district court for amendment of the amount of restitution

consistent with this opinion.
