Argued and Submitted September 12, 2013, San Francisco, California
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:04-cr-00038-LDG-GWF-2. Lloyd D. George, Senior District Judge, Presiding.
Alina Maria Shell (argued) and Jason F. Carr, Federal Public Defender's Office, Las Vegas, Nevada, for Defendant-Appellant.
Daniel Bogden, United States Attorney's Office, Las Vegas, Nevada; Elizabeth Olson White (argued), United States Attorney's Office, Reno, Nevada, for Plaintiff-Appellee.
Before: J. Clifford Wallace and Marsha S. Berzon, Circuit Judges, and Jack Zouhary, District Judge.[*] Dissent by Judge Zouhary.
Defendant-Appellant Greg Carter (" Carter" ) appeals from the district court's partial denial of his " Motion to Clarify Conditions of Supervised Release and the Amount and Current Status of Restitution." Carter argues he and his co-defendants are not liable for the remaining restitution balance, after the credit of forfeited assets, because everyone at Carter's sentencing hearing believed that the forfeited assets would satisfy the restitution obligation. We hold the district court had jurisdiction to enforce its restitution judgment and reverse the district court's calculation of the amount due and owing.
A. Indictment and Conviction
In January 2004, a grand jury indicted Carter and co-defendants Susan Carter (his then-wife) and Jaime Abarghoie (Susan Carter's daughter) for their participation in a scheme involving the fraudulent issuance of airline passenger tickets. Between 2000 and 2003, Carter and his co-defendants gained unauthorized access to the airline ticket-writing authority of various travel agencies, then wrote international tickets at bogus face value prices allegedly discounted from the actual fares. Defendants pocketed the difference -- over $1 million -- and left the travel agencies and airlines to deal with the losses.
In October 2005, the grand jury returned a superseding indictment against Carter and his co-defendants, charging them with conspiracy to commit wire fraud, wire fraud, access device fraud, and money laundering.
The superseding indictment also included forfeiture allegations for the following property:
o $51,763.30 in a Bank of America account;
o $44,400.00 in a Bank of America safe deposit box;
o Real property at 3009 Beach View Court, Las Vegas, NV;
o Real property at 3317 Chesterbrook Court, Las Vegas, NV;
o 1996 Mercedes Benz;
o 1994 Rolls Royce;
o 2001 Ford Mustang;
o Contents of a metal container seized during the search of 3009 Beach View Court, including: $10,300.00 in cash; a check for $9,150.00 made payable to Susan Carter; and coins totaling $40.17; and
o various computer equipment.
In February 2006, Carter's co-defendants pled guilty with written plea agreements. In March 2006, a jury convicted Carter on all counts.
In August 2006, the district court sentenced Carter to 70 months in prison, followed by 36 months of supervised release. The district court also ordered Carter and his co-defendants to pay restitution in the amount of $505,781.01, applying joint and several liability. The district court determined that the loss calculation, for purposes of determining Carter's offense level, was $1,484,841.40. The $505,781.01 restitution figure represented the estimated liquidated value of the forfeited assets, not the amount of loss incurred by the victims. Addressing Carter's objection about the offense-level loss calculation, the district court noted:
[T]he government stipulation as to the restitution owed by Susan Carter [and others] is not an accurate measure of the loss caused by the criminal conduct. Rather and perhaps most obviously, the restitution reflects a pragmatic acceptance of the fact that the Carters had approximately $505,000 in assets that could be forfeited to pay restitution. The stipulation was, in fact, an agreement that Susan Carter would forfeit all of the assets listed in the forfeiture count, which effectively included all assets.
Carter's presentence investigation report made the following restitution recommendation:
Restitution in this case is being addressed through the Superseding Indictment as Forfeiture Allegation One. The proceeds of the forfeiture will be dispersed to the airline companies pro rata. At this time, the total estimated value of
the forfeited items is determined to be $505,781.01. This amount will be requested as restitution, noting that the items listed in the forfeiture and the actual amounts garnered from these items is the actual restitution.
When pronouncing Carter's sentence, the district court stated:
THE COURT:.... In terms of restitution, restitution of 505,781.01 will be a joint requirement, joint and several, and the forfeiture -- the forfeiture has been approved by the Court, hasn't it, Counsel?
[THE GOVERNMENT]: Your Honor, the Court has entered a preliminary forfeiture, that's correct. We have the final order of forfeiture here.
THE COURT: And you have no objection to that, ...