The Volokh Conspiracy
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Today the Ninth Circuit handed down an interesting opinion on restitution, confirming that criminal defendants can agree to pay expansive restitution beyond what is required by the crimes of conviction. Interpreting the general federal restitution statute–18 U.S.C. § 3663–the Ninth Circuit explained that Congress has granted district courts statutory authority to award restitution to the extent agreed to by the parties in a plea agreement. I argued this case for a sex trafficking victim ("Jane Doe")–along with my friends at Justice at Last, an excellent non-profit organization helping labor and sex trafficking victims. The Ninth Circuit's opinion discusses several important issues in crime victims' rights, which are worth briefly highlighting.
The case involves a defendant, who kidnapped Jane Doe, then twelve years old. The defendant drove her from California to Nevada to sexually exploit her. Eventually Jane Doe was able to alert authorities, and police arrested the defendant. Federal prosecutors indicted him for sex trafficking. Following lengthy plea discussions, the defendant entered into a written plea agreement. Under the agreement, in exchange for the government's promise to drop the sex trafficking charges, he pleaded guilty to two lesser crimes (interstate travel in aid of unlawful activity) and agreed to pay Jane Doe full restitution.
The plea agreement provided that "[t]he Defendant acknowledges that the conduct to which he is entering a plea … gives rise to mandatory restitution to the victim(s). See 18 U.S.C. § 2259. The Defendant agrees that for the purpose of assessing such restitution, the Court may consider losses derived from the counts of conviction as well as losses caused from dismissed counts and uncharged conduct in which the Defendant has been involved. The Defendant agrees to pay the victim(s) the 'full amount of the victim's losses' as defined in 18 U.S.C. § 2259(b)(3)."
In sentencing proceedings in the district court, the defendant received the shorter sentence that he had bargained for. He was sentenced to 96 months in prison, less than the prison term the federal sentencing guidelines would have called for if he had been convicted of sex trafficking. But extended wrangling followed over how much restitution the defendant owed. The defendant ultimately argued that he owed little or no restitution because he had not pleaded guilty to a crime under section 2259–the provision cited in the plea agreement. The district court agreed with this position. Despite finding that the defendant had engaged in "egregious conduct," the district court believed it was powerless to award restitution because the defendant had not admitted to a crime under section 2259.
At this point, Justice at Last and I filed a petition for a writ of mandamus with the Ninth Circuit. We argued that the district court had interpreted its restitution authority too narrowly.
We filed our mandamus petition under the Crime Victims' Rights Act, 18 U.S.C. § 3771, which promises crime victims (among other rights) the "right to full and timely restitution as provided in law." The CVRA also promises crime victims a decision within 72 hours of the filing of the petition, unless the litigants agree to a more extended schedule. Because we wanted to give the Ninth Circuit more time to evaluate our position, we proposed (with the agreement of the prosecutors and defense counsel) a longer schedule than just 72 hours to decide the case.
The several weeks ago, the Ninth Circuit issued a decision on whether the 72-hour requirement was jurisdictional. The Circuit (per Bybee, J.) decided that the requirement was not jurisdictional and thus was waivable by crime victims: "Holding the deadlines to be jurisdictional would prejudice the very victims that the statute was meant to protect, and so, absent clear indication from Congress, we will not interpret § 3771(d)(3) to require such a result."
Today, the Ninth Circuit (per Graber, J.) granted Jane Doe's petition for a writ of mandamus, reversing the district court's decision that it lacked statutory authority to award her any restitution. The Circuit began by holding that CVRA mandamus petitions are not subject to the stringent standard of review that ordinarily would apply to a petition for extraordinary relief. Instead, based on an earlier Ninth Circuit precedent and a 2015 amendment to the CVRA, ordinary standards of appellate review apply. In this case, because the issue was one of the legal authority of the district court to award restitution, the standard of review was de novo.
Regarding the district court's authority, the Circuit turned immediately to 18 U.S.C. § 3663(a)(3), which provides: "The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement." The Circuit explained that "Congressional intent is clear. If a defendant has agreed to pay restitution in a plea agreement, then the plain meaning of the statutory text grants the district court statutory authority to order the agreed-upon restitution."
Working through the restitution provision in the defendant's plea agreement, the Circuit concluded that it was potentially ambiguous. The provision could be read to require the defendant to pay restitution. But, on the other hand, as the defendant argued, it could be read to limit restitution only to crimes in violation of § 2259–and the defendant had not pled to such a crime.
Given the ambiguity, the Circuit resorted to extrinsic evidence of the parties' intentions in drafting the agreement. The defendant's interpretation would essentially mean that he would pay no restitution at all. But the parties' course of conduct revealed that the defendant was agreeing to pay substantial restitution to Jane Doe. The extrinsic evidence unambiguously demonstrated that the defendant had agreed to pay restitution to Jane Doe. Because the extrinsic evidence was conclusive, the rule that ambiguities in a plea agreement are construed against the government did not apply. Accordingly, the Circuit granted Jane Doe's petition and remanded to the district court to determine how much restitution the defendant would pay.
On the surface, this today's ruling might appear to be solely a victory for crime victims. But the opinion will also prove useful to many defendants. Often defendants will want to plead guilty to less serious charges than the prosecutors have filed. But prosecutors may be concerned that, if the charges are reduced, the defendant may escape paying full restitution. Under the Ninth Circuit's decision, the problem is resolved by affirming that plea deals to lesser charges can be structured to provide full restitution to victims. As the Ninth Circuit explained, properly construed, the restitution statute "thus gives the government, victims, and defendants flexibility to reach a just result for all involved."