     19-649-cr
     United States v. Parnell

 1

 2                     United States Court of Appeals
 3                         for the Second Circuit
 4
 5                                   August Term 2019
 6
 7              (Submitted: March 6, 2020             Decided: May 19, 2020)
 8
 9                                 Docket No. 19-649-cr
10                        _____________________________________
11
12                              UNITED STATES OF AMERICA,
13                                                          Appellee,
14                                            v.
15
16                                 LINDA SUE PARNELL,
17                                                  Defendant-Appellant.
18                        _____________________________________
19
20   Before:
21
22                HALL, LOHIER, and PARK, Circuit Judges.
23
24          Defendant-Appellant Linda Sue Parnell appeals from the judgment of the
25   United States District Court for the Northern District of New York (Hurd, J.)
26   ordering her to pay restitution in the amount of $72,207.16. Parnell pleaded guilty
27   to four counts of wire fraud in 2018 for submitting false expense-reimbursement
28   forms to the Department of Labor. She contends that the restitution amount
29   should not have included losses from 2010 to 2012, which fell outside the five-year
30   statute of limitations for wire fraud. We hold that the restitution order was proper
31   under the Mandatory Victims Restitution Act because all of the losses resulted
32   from the same “scheme,” even though some occurred outside the limitations
33   period for the underlying crime. 18 U.S.C. § 3663A(a)(2). For the reasons stated
34   below, the judgment of the district court is AFFIRMED.
 1                                         Melissa A. Tuohey, Assistant Federal Public
 2                                         Defender, for Lisa A. Peebles, Federal Public
 3                                         Defender for the Northern District of New
 4                                         York, Syracuse, NY, for Defendant-Appellant.
 5
 6                                         Michael F. Perry, Assistant United States
 7                                         Attorney, for Grant C. Jaquith, United States
 8                                         Attorney for the Northern District of New
 9                                         York, Syracuse, NY, for Appellee.
10
11   Park, Circuit Judge:

12         This appeal arises from a long-running scheme to defraud the United States

13   through the submission of false expense-reimbursement forms. Linda Sue Parnell

14   is a former federal employee who received reimbursement for hundreds of fake

15   trips to and from her local YMCA between 2010 and 2016 as part of her federal

16   worker’s compensation benefits. Parnell was indicted for wire fraud in August

17   2017. She pleaded guilty, and the district court ordered her to pay forfeiture and

18   to make restitution for the total amount that she fraudulently claimed for

19   reimbursement between 2010 and 2016.

20         Parnell argues that the five-year statute of limitations for wire fraud bars

21   restitution for losses before August 2012. We hold that the district court properly

22   ordered restitution for losses from Parnell’s wire fraud dating back to 2010. The

23   Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A, requires




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 1   restitution for all losses, id. § 3664(f)(1)(A), arising from “criminal conduct in the

 2   course of [a] scheme” where a scheme is an element of the offense of conviction,

 3   id. § 3663A(a)(2), even for losses that occurred outside the limitations period for

 4   the underlying crime. We thus AFFIRM the judgment of the district court.

 5                                   I. BACKGROUND

 6         Parnell, a former nurse at a Veterans Affairs hospital, began receiving

 7   federal worker’s compensation benefits through the U.S. Department of Labor

 8   Office of Workers’ Compensation Programs (“OWCP”) after injuring her back in

 9   1995. OWCP authorized Parnell to seek mileage reimbursements for travel to and

10   from certain local YMCAs and covered medical appointments.

11         With each request for travel reimbursement, Parnell had to submit a

12   Medical Travel Refund Request Form to OWCP. Parnell signed each of those

13   forms, providing a Payee’s Certification that stated:

14         I hereby certify that the information given by me on and in connection
15         with this form is true and correct to the best of my knowledge and
16         belief. I am aware that any person who knowingly makes any false
17         statement or misrepresentation to obtain reimbursement from OWCP
18         is subject to civil penalties and/or criminal prosecution.

19   PSR ¶ 2.

20         Between January 2, 2010 and August 30, 2016, Parnell submitted false

21   expense reports to OWCP that inflated or entirely fabricated her travel costs.


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 1   Specifically, Parnell submitted travel-reimbursement forms for 1,771 visits to a

 2   YMCA in Fayetteville, New York, when in fact she had visited that YMCA only

 3   five times. In total, she received $72,207.16 in improper reimbursements.

 4         In 2018, Parnell pleaded guilty to four counts of wire fraud for devising and

 5   executing a “scheme to defraud” that lasted from January 2, 2010 to August 30,

 6   2016, during which time she submitted hundreds of false reimbursement forms.

 7   The counts in the indictment related to four wire transactions totaling $2,269.64,

 8   all of which fell within the five-year period preceding Parnell’s indictment in 2017.

 9         The district court sentenced Parnell to five years of probation and ordered

10   her to pay $72,207.16 in restitution, which was the total amount that Parnell

11   fraudulently claimed for reimbursement between 2010 and 2016. The district court

12   also entered a forfeiture money judgment for the same amount. This appeal

13   followed.

14                                   II. DISCUSSION

15         This Court reviews restitution orders under the MVRA for “abuse of

16   discretion.” United States v. Gushlak, 728 F.3d 184, 190 (2d Cir. 2013) (internal

17   quotation marks omitted).       “A district court abuses its discretion when a

18   challenged ruling rests on an error of law, a clearly erroneous finding of fact, or




                                              4
 1   otherwise cannot be located within the range of permissible decisions.”             Id.

 2   (internal quotation marks omitted). Questions of law raised by challenges to

 3   restitution orders are reviewed de novo. Id. at 191.

 4   A.    Restitution Under the MVRA

 5         “As in all statutory construction cases, we begin with the language of the

 6   statute. The first step is to determine whether the language at issue has a plain

 7   and unambiguous meaning with regard to the particular dispute in the case.”

 8   United States v. Am. Soc’y of Composers, Authors & Publishers, 627 F.3d 64, 72 (2d Cir.

 9   2010) (internal quotation marks omitted). “When the language of a statute is

10   unambiguous, judicial inquiry is complete.”            Id. (internal quotation marks

11   omitted).

12         The MVRA provides that a district court “shall order, in addition to . . . any

13   other penalty authorized by law, that the defendant make restitution to the victim

14   of the offense.” 18 U.S.C. § 3663A(a)(1). For “an offense that involves as an

15   element a scheme, conspiracy, or pattern of criminal activity,” the MVRA defines

16   a victim entitled to restitution as “any person directly harmed by the defendant’s

17   criminal conduct in the course of the scheme, conspiracy, or pattern.”              Id.




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 1   § 3663A(a)(2). 1 Wire fraud is such an offense, requiring a “scheme or artifice to

 2   defraud” as an element of the crime. Id. § 1343.

 3         Based on the plain meaning of the statute, we hold that restitution under the

 4   MVRA encompasses losses arising from criminal conduct in the course of a

 5   scheme, including acts outside the statute-of-limitations period, as long as those

 6   losses are attributable to the same underlying scheme, and as long as some part of

 7   that scheme for which the defendant was convicted occurred within the statute of

 8   limitations. 2 See 18 U.S.C. § 3663A. Three of our sister circuits to consider this

 9   question have reached the same conclusion. The Sixth, Ninth, and Eleventh

10   Circuits have held that restitution under the MVRA can extend to losses caused by

11   conduct outside the statute of limitations. 3 See United States v. Ellis, 938 F.3d 757,

12   763–65 (6th Cir. 2019); United States v. Anieze-Smith, 923 F.3d 565, 573–75 (9th Cir.

13   2019); United States v. Dickerson, 370 F.3d 1330, 1341–42 (11th Cir. 2004).



           1  The MVRA’s definition of “victim” applies to the government here. See United
     States v. Ekanem, 383 F.3d 40, 44 (2d Cir. 2004) (holding “that the Government fits within
     the meaning of ‘victim’ under the MVRA”).

           2 This interpretation “is consistent with the intent and purpose of the MVRA to
     expand, rather than limit, the restitution remedy.” Ekanem, 383 F.3d at 44; see also 18
     U.S.C. § 3664(f)(1)(A) (requiring restitution “to each victim in the full amount of each
     victim’s losses”).

           3 The Tenth Circuit has reached the same conclusion, albeit in a non-precedential
     order. See United States v. Williams, 356 F. App’x 167, 170 (10th Cir. 2009).


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 1   B.     Application

 2          Here, we conclude that the district court did not abuse its discretion by

 3   ordering Parnell to pay $72,207.16 in restitution.           The district court ordered

 4   restitution for the total losses from Parnell’s scheme, which began in January 2010,

 5   including losses incurred outside the five-year statute of limitations for wire fraud.

 6   This was proper because the losses resulted from a single scheme comprised of a

 7   repeated pattern of conduct. 4

 8          First, when Parnell knowingly and voluntarily pleaded guilty to wire fraud,

 9   she admitted to “fill[ing] out paperwork for travel expenses wrongly” since 2010.

10   App’x 33. As noted above, wire fraud is a crime that includes as an element “a

11   scheme to defraud.” 18 U.S.C § 1343. And Parnell’s guilty plea to wire fraud,

12   which she does not challenge, was the basis on which the district court necessarily

13   found that Parnell engaged in a scheme to defraud. The MVRA thus requires

14   restitution for Parnell’s “criminal conduct in the course of the scheme.”                 Id.

15   § 3663A(a)(2). Second, the four counts of wire fraud to which Parnell pleaded



            4  Although the district court imposed the restitution order based on its
     determination that wire fraud constitutes a continuing offense, we can affirm on any
     ground for which there is a sufficient record. See Olsen v. Pratt & Whitney Aircraft, Div. of
     United Techs. Corp., 136 F.3d 273, 275 (2d Cir. 1998). We conclude that the restitution order
     was properly imposed under the MVRA, and we do not address here whether wire fraud
     is a continuing offense.


                                                  7
 1   guilty all fell within the five-year statute of limitations.       These four counts

 2   encompassed conduct that was part of Parnell’s scheme to defraud the

 3   government—the victim of this crime. See id. The amount of restitution ordered—

 4   $72,207.16—is the total amount of the losses suffered by the government over the

 5   course of Parnell’s fraudulent-reimbursement scheme.            The $72,207.16 is all

 6   attributable to the same underlying scheme, and the four counts of wire fraud on

 7   which Parnell was convicted were a part of that scheme and occurred within the

 8   statute of limitations period. Thus, the district court did not abuse its discretion

 9   by ordering restitution under the MVRA for the total losses caused by the scheme,

10   including losses from the 2010–2012 period outside the statute of limitations.

11         Parnell relies on Toussie v. United States, 397 U.S. 112 (1970), and United States

12   v. Green, 897 F.3d 443 (2d Cir. 2018), to argue that restitution can reach transactions

13   outside a limitations period only when the crime at issue is a “continuing offense.”

14   Toussie, however, did not address restitution at all and was decided long before

15   Congress enacted the MVRA. See 397 U.S. at 114. And Green involved individual

16   violations of a statute prohibiting embezzlement of government money for which

17   a “scheme” is not an element of the crime. See 897 F.3d at 448 (citing 18 U.S.C.




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1   § 641). There, we concluded that each of the defendant’s acts was a separate

2   offense and not part of a single scheme to defraud. Id.

3          We thus reject Parnell’s arguments and affirm the district court’s order of

4   restitution. 5

5                                    III. CONCLUSION

6          For the reasons above, we AFFIRM the judgment of the district court.




           5 We lack jurisdiction to consider Parnell’s argument that the district court erred
    by entering a forfeiture order in the amount of $72,207.16 because Parnell’s notice of
    appeal challenged “THE AMOUNT OF RESTITUTION ONLY.” App’x 102. And “our
    jurisdiction is limited by the wording of the notice.” New Phone Co. v. City of New York,
    498 F.3d 127, 130 (2d Cir. 2007).


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