Ninth Circuit Confirms that District Courts Can Enforce Expansive Restitution Agreements

The Ninth Circuit issued an interesting opinion today on restitution. It confirmed that criminal defendants may agree to large amounts of restitution above and beyond the amount required for the crime(s) they have been convicted. 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. These important issues are well worth highlighting in the Ninth Circuit’s opinion.

Jane Doe was twelve years old when she was kidnapped by a defendant. To sexually exploit Jane Doe, the defendant drove her across California and Nevada. Jane Doe alerted the authorities. The defendant was eventually arrested by police. He was indicted by federal prosecutors for sex traficking. The defendant reached a written plea deal after lengthy negotiations. In exchange for the promise by the government to drop the charges of sex traficking, the defendant entered into a written plea agreement. He pleaded guilty at two lesser offenses (interstate travel aiding unlawful activity and interstate travel). Jane Doe will also be compensated fully.

It was agreed that the plea deal would provide for “[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 accepts that, for purposes of assessing such restitution the Court might consider loss derived from both the convictions as well as those resulting from dismissals and other uncharged conduct. According to 18 U.S.C., the defendant agrees that he will pay victim(s), the full amount of their losses. § 2259(b)(3).”

The defendant was sentenced to a shorter sentence in sentencing proceedings at the district court. The sentence he received was 96 months imprisonment, which is less than what the federal sentencing guidelines call for in the event that he were convicted of sex traficking. There was much debate about how much the defendant had to pay. 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. This was the position adopted by the district court. Although the court found that the defendant was guilty of “egregious misconduct”, the district court felt it couldn’t award restitution since the defendant didn’t admit to the crime as per section 2259.

Justice at Last and I first filed a petition to the Ninth Circuit asking for a mandamus writ. Our argument was that the district court had narrowly interpreted its authority to restitution.

The Crime Victims’ Rights Act (18 U.S.C.) was our basis for filing our mandamus request. § 3771, which promises crime victims (among other rights) the “right to full and timely restitution as provided in law.” The CVRA promises that crime victims will be notified within 72 hours after the petition is filed, unless litigants opt for a longer schedule. We wanted the Ninth Circuit to have more time to consider our case so we suggested (with agreement from the defense counsel and prosecutors) that the court be decided over 72 hours.

A number of weeks ago, the Ninth Circuit made a decision about whether or not the 72 hour requirement is jurisdictional. 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.”

The Ninth Circuit today (per Graber J. Jane Doe was granted Jane Doe’s request for a writ de mandamus. This reversed the decision of the district court that she lacked the statutory authority to grant her any restitution. Circuit Judge Jane Doe argued that CVRA Mandamus Petitions were not valid. It is not Subject to the strict standards of review which ordinarily apply to petitions for extraordinary relief. Ordinary standards for appellate review are instead applied, as they were based upon an older Ninth Circuit precedent, and a 2015 amend to the CVRA. The standard of review in this instance was de novo because it was a question of legal authority for the district court to award Restitution.

Concerning the jurisdiction of the district judge, the Circuit immediately turned 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.” According to the Circuit, “Congressional intent was clear.” When a defendant agrees to pay the restitution under a plea deal, the plain meaning in the statutory text gives the district judge the legal authority to order that restitution.

The Circuit examined the plea agreement’s restitution clause and concluded it could be ambiguous. This provision can be understood to require that defendant 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.

Because of this ambiguity the Circuit relied on extrinsic evidence that the intent of the parties to draft the agreement. This would have meant that the defendant would make no restitution. However, the conduct of the parties revealed that the defendant had agreed to make substantial restitution payable to Jane Doe. Extrinsic evidence clearly demonstrated that Jane Doe had been paid restitution by the defendant. The extrinsic evidence proved that the defendant had agreed to pay restitution to Jane Doe. This was in direct contravention of the rule that any ambiguities within a plea agreement can be construed as against the government. Accordingly, the Circuit granted Jane Doe’s petition and remanded to the district court to determine how much  restitution the defendant would pay.

The ruling of today might seem like a victory only for criminal victims. The opinion is also useful to defendants. Often, defendants want to plead guilty or not guilty to the more serious charges that have been filed by the prosecution. Prosecutors may worry that if charges are reduced the defendant could avoid paying all restitution. The Ninth Circuit’s ruling affirmed that lesser charges may be reduced and can be structured so victims receive full restitution. The Ninth Circuit stated that the restitution statute, when properly understood, “gives the government, victims and defendants the flexibility to achieve a just outcome for everyone involved.”