United States v. Harvey ( 2021 )

United States Court of Appeals
For the First Circuit
No. 20-1869
UNITED STATES OF AMERICA,
Appellee,
v.
STEPHEN Z. HARVEY, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise J. Casper, U.S. District Judge]
Before
Lynch, Selya, and Barron,
Circuit Judges.
Jonathan Scott Lauer, Assistant Federal Public Defender, for
appellant.
Alexandra W. Amrhein, Assistant United States Attorney, with
whom Nathaniel R. Mendell, Acting United States Attorney, was on
brief, for appellee.
December 9, 2021
LYNCH, Circuit Judge. In 2011, the district court
imposed its original criminal sentence against Stephen Z. Harvey,
Jr., including a restitution order to the corporate victim payee.
Purporting to act under Federal Rule of Criminal Procedure 36, the
district court amended the restitution portion of that sentence
nine years later, substituting the receiver of the corporate victim
as the restitution recipient.
Although Harvey did not raise the issue in the district
court, we reverse the amended restitution order on jurisdictional
grounds. Compelled by 18 U.S.C. § 3664(o), our case law which
interprets an analogous provision in 18 U.S.C. § 3582, and "the
general rule of finality" governing criminal convictions and
sentences, see Dillon v. United States, 560 U.S. 817, 824 (2010),
we hold that the district court was divested of jurisdiction over
the restitution order once the order was entered as part of
Harvey's final criminal judgment. On these facts, we do not
identify any statutory authority, including the Mandatory Victims
Restitution Act of 1996 ("MVRA"), 18 U.S.C. §§ 3663A, 3664, that
provides a basis for jurisdiction. Because the district court
invoked Rule 36 for an amendment that could not be properly made
under it, the district court acted without jurisdiction.
We recognize the common-sense appeal of what the
district court did and that this result benefits a wrongdoer.
Nonetheless, we are bound to follow established law.
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I. Background
Only those facts necessary to frame the issues raised on
appeal are discussed below.
A. The Initial Proceedings
Harvey is the former Chief Financial Officer of Sleep
HealthCenters LLC ("SHC"), a Massachusetts-based limited liability
company focused on diagnosing and treating sleep disorders. In
that position, he embezzled more than $600,000 of company funds by
issuing company checks to himself and third parties to whom he
owed money, and by manipulating SHC's accounting system to conceal
those transactions.
In May 2011, Harvey was charged by information with one
count of mail fraud, see 18 U.S.C. § 1341, and one count of
interstate transportation of stolen property, see id. § 2314.
After he waived indictment and pleaded guilty to both counts, the
district court imposed a below-guideline sentence of twenty-four
months' imprisonment, to be followed by three years of supervised
release, as well as the restitution order we next describe.1
The district court further determined that the victim of
the offense was SHC and ordered Harvey to pay criminal restitution
1 At sentencing, the district court calculated the
advisory guideline range to be thirty-seven to forty-six months of
imprisonment, but, upon departing under U.S. Sentencing Guidelines
Manual § 4A1.3(b), the court determined the appropriate range to
be thirty-three to forty-one months.
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to the company's then-President and Chief Executive Officer, Paul
Valentine, in the amount of $635,060.70. At the sentencing
hearing, the district court rejected a lengthier sentence because
of the "hefty" restitution and in order to "facilitate the prompt
repayment to the victim." The court entered the final judgment of
conviction and sentence after conviction, which included the
restitution order, on September 30, 2011.
B. The Dissolution of SHC and Substitution of KCP as the
Restitution Payee
SHC ceased business operations in early 2013. The
Massachusetts Superior Court for Suffolk County subsequently
placed SHC in a receivership, appointing as receiver KCP Advisory
Group, LLC ("KCP"). KCP oversaw the sale of SHC's assets until
SHC officially dissolved as a corporate entity in June 2015. About
one year later, the Suffolk County Superior Court entered final
judgment terminating the receivership and discharging KCP from its
obligations.
Harvey paid little of the restitution he owed, though
the sentencing court had reduced his term of imprisonment in light
of the restitution order. By October 2019, Harvey had paid less
than $9,000 in restitution, that is, less than two percent of his
total debt. Based on his non-payment, the government applied for
a writ of continuing garnishment under 28 U.S.C. § 3205(b)(1),
seeking to garnish Harvey's wages and income. After the district
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court allowed the writ in November 2019, and Harvey's employer
filed an answer confirming his employment, the government moved
for an order of continuing garnishment and Harvey moved, with leave
of court, to quash the writ.
Harvey argued the writ of continuing garnishment should
not issue because the corporate victim was no longer in business
and had no successor-in-interest. The government argued in
response that the court could "use its equitable powers to name
KCP . . . as successor victim to SHC"2 or, in the alternative,
direct the payments to the Crime Victims Fund, established by the
Victims of Crime Act of 1984, 34 U.S.C. § 20101(a).
On February 19, 2020, without a hearing, the district
court denied Harvey's motion to quash and allowed the motion of
the government for an order of continuing garnishment (the
"February Order"). At that time, the district court did not amend
the restitution order; rather, it stated that "it ha[d] authority
under Fed. R. C[rim.] P. 36 to amend the judgment as to the payee
2 The government also cited United States v. Phaneuf, 91
F.3d 255, 265 (1st Cir. 1996), to support the substitution. In
that case, this court affirmed the Probation Office's decision to
direct restitution payments to the Federal Deposit Insurance
Corporation ("FDIC") because, at the time of sentencing, the
corporate victim was defunct and FDIC had been appointed as the
receiver. Id. at 265. The government did not cite Rule 36 or 18
U.S.C. § 3664(o) as a basis for the court's authority.
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of restitution."3 The court, in that same order, noted that "it
[wa]s not clear on the [then-] current record that it [wa]s
possible or feasible to have the receiver . . . substituted [] for
SHC," so the court directed the government to confer with KCP "to
seek reinstatement as receiver for the purpose of receiving and
distributing restitution payments from Mr. Harvey." If such
reinstatement proved to be infeasible, the court stated that the
restitution award would, upon the government's motion, be assigned
to the Crime Victims Fund. Harvey did not file an objection to
any portion of the order and did not object to or question the
assertion by the court that it had authority under Rule 36 to amend
the restitution order in response to the government's motion.
In accordance with the district court's instruction, in
March 2020, KCP filed in Suffolk County Superior Court an emergency
motion to reopen the receivership to administer the restitution
award. The state court reopened the receivership on July 30, 2020.
In the interim, none of the parties had questioned the court's
authority to act under Rule 36 to substitute the receiver as the
restitution payee.
3 In the electronic order, the district court misstated
that "it ha[d] authority under Fed. R. Civ. P. 36 to amend the
judgment as to the payee of restitution" (emphasis added), but the
parties agree that the citation to the civil rules was a
typographical error.
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Following the allowance of KCP's motion to reopen the
receivership to administer the restitution award, the district
court announced in an electronic order entered on August 27, 2020
that Harvey's outstanding restitution payments were to be directed
to KCP (the "August Order"). The court cited its February Order
as support. The August Order did not name the Crime Victims Fund
as an alternative recipient. There remained no objection or
notification by the parties questioning the court's Rule 36
authority.
On September 4, 2020, the sentencing court entered the
amended judgment pursuant to Rule 36, substituting KCP as the
restitution payee.4 The total amount of restitution Harvey was
ordered to pay remained unchanged. Harvey appeals from that
amended judgment, together with the February and August Orders.
Harvey's most telling argument on appeal is that the
district court lacked jurisdiction to amend the criminal judgment.
He contends the district court's reliance on Rule 36 to amend the
restitution judgment was error because the Rule permits the
correction of only clerical errors in a judgment and the amendment
4 If the identified victim to whom restitution had been
owed were a natural person, rather than a corporation, the MVRA
would have permitted in the case of the victim's death the victim's
legal guardian or representative to assume the victim's
restitution rights. See 18 U.S.C. § 3663A(a)(2). No similar
provision exists for corporate victims, so amendment of the order
was deemed appropriate.
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in this case was substantive in nature. He further argues the
MVRA provides no basis for the court's order. For these reasons,
Harvey contends the court was without authority to amend the
restitution portion of his criminal judgment which was final as of
2011.
The government, in response, argues that "Rule 36 does
not implicate a court's subject-matter jurisdiction." The
government contends that Harvey's Rule 36 challenge is subject to
plain error review because Harvey failed to object
contemporaneously to the district court's reliance on the Rule.
Under plain error review, the government argues, the amendment
must stand. The government further contends that, in any event,
the MVRA authorizes courts to substitute suitable restitution
payees where, as allegedly here, the victim is "deceased" or
"incapacitated." See 18 U.S.C. § 3663A(a)(2).
II. Discussion
As we must, we start with whether the district court had
subject-matter jurisdiction to amend the restitution portion of
Harvey's criminal judgment. See Royal Siam Corp. v. Chertoff, 484
F.3d 139, 142 (1st Cir. 2007); see also United States v. Mercado-
Flores, 872 F.3d 25, 28 (1st Cir. 2017) ("Even where, as here, no
jurisdictional issue was broached in the district court, we have
an affirmative obligation to examine jurisdictional concerns."
(internal quotation marks omitted)). Harvey argues the district
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court lacked such jurisdiction because 18 U.S.C. § 3582(b) renders
judgments of conviction final. Subject to the narrow exceptions
set forth in 18 U.S.C. § 3582(b)–(c) and other statutes, Harvey
contends a district court has no authority to amend any portion of
the final criminal judgment after it has entered. Our
understanding of 18 U.S.C. § 3582, case law interpreting it, and
"the general rule of finality" of criminal convictions and
sentences, see Dillon, 560 U.S. at 824, compel us to adopt Harvey's
view.
We reject the government's position that this appeal
does not present a jurisdictional issue. The controlling
precedents we next describe lead us to this conclusion. Subsection
3582(b) states that, "[n]othwithstanding the fact that a sentence
to imprisonment can subsequently be [modified in specified ways,]
. . . a judgment of conviction that includes such a sentence
constitutes a final judgment for all other purposes." 18 U.S.C.
§ 3582(b). The Supreme Court has described this provision as
reflecting "the general rule of finality." Dillon, 560 U.S. at
824; see also Freeman v. United States, 564 U.S. 522, 526 (2011)
(plurality opinion). The Court has stated that, under this rule,
a judgment of conviction and sentence "may not be modified by a
district court except in limited circumstances" provided by
statute. Dillon, 560 U.S. at 824 (citing 18 U.S.C. § 3582(b)).
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This court has further described this rule of finality
as prescribing the "bedrock" principle that "[s]ubject to only a
handful of narrowly circumscribed exceptions, a district court has
no jurisdiction to vacate, alter, or revise a sentence previously
imposed." Mercado-Flores, 872 F.3d at 28 (citing Dillon, 560 U.S.
at 819, and United States v. Griffin, 524 F.3d 71, 84 (1st Cir.
2008)). A district court nonetheless retains the power to
"correct" certain errors in a previously imposed sentence under
specific circumstances set forth in Federal Rules of Criminal
Procedure 35 and 36. We have applied these principles in United
States v. Griffin and United States v. Mercado-Flores.
In Griffin, the district court had relied on Rule 35(a)
to vacate the defendant's prison sentence and re-sentence her
several weeks later. 524 F.3d at 75, 82–83. On appeal, this court
vacated the new sentence on jurisdictional grounds and remanded
for re-imposition of the original sentence because the re-
sentencing had taken place outside of the seven-day window then-
provided in Rule 35(a). Id. at 85. This court explained that a
district court has no authority to modify a previously imposed
term of imprisonment, save for limited exceptions provided in,
e.g., 18 U.S.C. § 3582(c). Id. at 83; see § 3582(c)(1)(B).
Although Rule 35 is one of the exceptions listed in § 3582(c), the
district court had failed to comply with the Rule's strictures,
namely, the time limitation. Griffin, 524 F.3d at 84. This court
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held that Rule 35 was jurisdictional and could not apply; so, the
court did not have jurisdiction to re-sentence the defendant. Id.
at 85.
This court again vacated a district court order
purporting to modify a criminal sentence in Mercado-Flores, citing
to Griffin. 872 F.3d at 28–30 (citing Griffin, 524 F.3d at 84).
In Mercado-Flores, the district court sua sponte had voided the
defendant's sentence twenty-four days after imposition, without
identifying the source of the court's authority to do so. 872
F.3d at 29. On appeal, this court vacated the district court's
action on jurisdictional grounds. Id. at 31. Considering Dillon
and Griffin, we explained that a district court "has no inherent
power to modify a sentence after it has been imposed" and any
authority to so modify must stem from an explicit statutory
provision or rule. Id. at 28–29 (citing also United States v.
Ortiz, 741 F.3d 288, 292 n.2 (1st Cir. 2014)). Finding no such
provision or rule empowering the district court sua sponte to void
the defendant's sentence, this court held the district court lacked
jurisdiction to so act. Id. at 29.
Applying the same principles to this case, the district
court was without inherent authority to modify Harvey's criminal
sentence once the final judgment was imposed on September 30,
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2011.5 That lack of authority necessarily extended to the
restitution portion of the judgment because restitution was made
part of his criminal sentence. United States v. Aguirre-González,
597 F.3d 46, 52 (1st Cir. 2010) ("[T]he law in this circuit remains
that restitution ordered as part of a criminal sentence is a
criminal penalty." (internal quotation marks omitted)); see 18
U.S.C. § 3664(o) (referring to "[a] sentence that imposes an order
of restitution"). And on the facts of this case, there was no
statutory provision or rule that could provide the district court
with authority to modify the restitution order. As explained
below, the substitution of the named restitution payee was not a
correction of a "clerical error" under Rule 36. Rather, the
amendment was more akin to an attempt to modify a sentence under
Rule 35, but it did not comply with the time limits imposed by
that Rule. See United States v. Gonzalez-Rodriguez, 777 F.3d 37,
41 (1st Cir. 2015) (noting that corrections to a criminal sentence
after judgment has entered "must proceed within the confines of
5 This is not to say a sentencing court that misses the
ninety-day deadline "for the final determination of the victim's
losses" under 18 U.S.C. § 3664(d)(5) lacks jurisdiction to declare
the restitution amount after the ninety days have passed. See
Dolan v. United States, 560 U.S. 605, 611 (2010). The Supreme
Court held in Dolan that a sentencing court retains the power to
order restitution when it makes clear prior to the ninety-day
deadline that restitution was forthcoming, leaving open only the
issue of amount. Id. at 608.
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Fed. R. Crim. P. 35(a), unless there is some statutory basis for
the requested relief").
The government challenges this conclusion, arguing that
the controlling precedent just described is distinguishable from
this case. The government contends, inter alia, that Griffin and
Mercado-Flores depend on the finality rule set forth in 18 U.S.C.
§ 3582, which applies only to terms of imprisonment, not to the
restitution order at issue here; so the district court retained
jurisdiction over the restitution portion of Harvey's sentence
under 18 U.S.C. § 3231, despite the entry of a final judgment of
conviction approximately a decade before. Precedent does not
support such a distinction. A parallel rule of finality is
reflected in the MVRA, 18 U.S.C. § 3664(o). Compare 18 U.S.C.
§ 3664(o) ("A sentence that imposes an order of restitution is a
final judgment notwithstanding the fact that . . . such a sentence
can subsequently be [modified in specified ways]."), with id.§ 3582(b) ("Notwithstanding the fact that a sentence to
imprisonment can subsequently be . . . [modified in specified ways]
. . . a judgment of conviction that includes such a sentence
constitutes a final judgment for all other purposes."); see also
United States v. Puentes, 803 F.3d 597, 599 (11th Cir. 2015) ("18
U.S.C. § 3664(o)[] provides an exhaustive list of the ways in which
a mandatory restitution order can be modified.").
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The government further attempts to distinguish this case
from Griffin on the ground that the Griffin court considered a
challenge to the district court's authority to amend a sentence
under Rule 35, rather than Rule 36. 524 F.3d at 82–85. And Rule
35, the government highlights, has a time limitation that is absent
from Rule 36. This distinction also does not make a dispositive
difference. Although this court discussed Rule 35(a)'s time
limitation, our holding in Griffin ultimately predicated the
jurisdictional limitation on 18 U.S.C. § 3582 and the analysis of
the rule of finality. Id. at 83–84; see Dillon, 560 U.S. at 824
(citing 18 U.S.C. § 3582(b)). This rule, again, exists in
analogous form in the MVRA. See 18 U.S.C. § 3664(o). Further,
the significance of the time limitation in Griffin primarily was
the district court's failure to comply with it. So too here,
because the district court invoked Rule 36 for an amendment that
could not be properly made under it, the district court acted
without jurisdiction.
We note that subject-matter jurisdiction cannot be
conferred by a party's "indolence, oversight, acquiescence, or
consent." United States v. Horn, 29 F.3d 754, 768 (1st Cir. 1994).
Although Harvey did not object to the district court's assertion
of authority under Rule 36 until this appeal, plain error review
does not apply, and our review of his challenge is de novo. See
United States v. George, 841 F.3d 55, 70–71 (1st Cir. 2016).
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We conclude the district court's substitution of the
restitution payee was not a correction of a "clerical error" as
contemplated by Rule 36. The Rule provides that:
[a]fter giving any notice it considers
appropriate, the court may at any time correct
a clerical error in a judgment, order, or
other part of the record, or correct an error
in the record arising from oversight or
omission.
Fed. R. Crim. P. 36 (emphasis added). Rule 36 permits the
correction of only "straightforward clerical and technical errors;
it is not meant to provide an opening for litigation over the
merits." United States v. Ranney, 298 F.3d 74, 81 (1st Cir. 2002);
see United States v. Santiago-Lugo, No. 18-2112, 2019 WL 11868617,
at *1 (1st Cir. Oct. 1, 2019) (unpublished) ("A correction of a
judgment pursuant to Rule 36 is non-substantive."). As the Fifth
Circuit has observed, "[a] clerical error occurs when the court
intended one thing but by merely clerical mistake or oversight did
another." United States v. Varner, 948 F.3d 250, 254 (5th Cir.
2020) (internal quotation marks omitted); see also United States
v. Robinson, 368 F.3d 653, 656 (6th Cir. 2004) ("[A] clerical error
must not be one of judgment or even of misidentification, but
merely of recitation, of the sort that a clerk or amanuensis might
commit, mechanical in nature." (quoting United States v. Coleman,
229 F.3d 1154, 2000 WL 1182460, at *2 (6th Cir. Aug. 15, 2000)
(unpublished table decision)).
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Here, the substitution of KCP as the restitution payee
was not a correction of a "clerical" error. The amendment was not
correcting a mistake or omission by, e.g., the clerk's office as
to the restitution payee named in Harvey's judgment. To the
contrary, the district court explicitly identified at sentencing
SHC as the victim of Harvey's crime. That identification was
accurately stated in the restitution order entered on September
30, 2011 which designated SHC's President as the restitution
recipient. Cf. United States v. Portillo, 363 F.3d 1161, 1165
(11th Cir. 2004) (per curiam) (affirming the district court's
assertion of authority under Rule 36 to correct defendant's written
restitution judgment when the judgment did not reflect the oral
sentencing pronouncement); United States v. Crawley, 463 F. App'x
418, 422 (5th Cir. 2012) (per curiam) (unpublished) (similar).
Substituting the receiver as the restitution recipient nine years
thereafter is not a mechanical or technical correction. It is a
change that was not contemplated at sentencing and is not
authorized by Rule 36. Cf. Varner, 948 F.3d at 254 ("A name change
obtained six years after entry of judgment is not a clerical error
within the meaning of Rule 36.").
Further, none of the avenues for modifying a sentence
imposing a restitution order provided in 18 U.S.C. § 3664(o) apply
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in this case.6 The district court could not act under Rule 35(a)
here because the amendment took place nine years after the original
criminal sentence was imposed, which is well outside of Rule
35(a)'s 14-day time limitation. 18 U.S.C. § 3664(o)(1)(A); Fed.
R. Crim. P. 35(a); cf. Griffin, 524 F.3d at 85 (holding the time
limitation imposed by Rule 35 is jurisdictional). Section 3742
also does not apply because the amendment did not stem from an
appeal of Harvey's original sentence. See 18 U.S.C.
§§ 3664(o)(1)(A)–(B), 3742. Further, SHC's losses were
ascertainable at the time of sentencing and no further losses were
brought to the court's attention, so 18 U.S.C. § 3664(d)(5) is
inapplicable. Id. §§ 3664(d)(5), 3664(o)(1)(C). So too are 18
U.S.C. §§ 3572, 3613A, and 3664(k) because the amount of
restitution owed by Harvey was not "adjusted"; it remained
unchanged. Id. §§ 3572, 3613A, 3664(k), 3664(o)(1)(D). Finally,
6 Section 3664(o) states that a restitution order may be
[(1)](A) corrected under Rule 35 of the
Federal Rules of Criminal Procedure and
section 3742 of chapter 235 of this title;
(B) appealed and modified under section 3742;
(C) amended under subsection (d)(5); or
(D) adjusted under section 3664(k), 3572, or
3613A; or
(2) the defendant may be resentenced under
section 3565 or 3614.
18 U.S.C. § 3664(o).
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Harvey was not resentenced under 18 U.S.C. §§ 3565 or 3614, making
subsection 3664(o)(2) unavailable, as well.
That leaves the government's argument that KCP was
authorized to assume the restitution rights of SHC pursuant to the
MVRA, 18 U.S.C. § 3663A(a)(2). We hold it was not.7 This provision
states in relevant part that,
[i]n the case of a victim who is under 18 years
of age, incompetent, incapacitated, or
deceased, the legal guardian of the victim or
representative of the victim's estate, another
family member, or any other person appointed
as suitable by the court, may assume the
victim's rights under this section.
Id. As a matter of first impression, we conclude the clear text
of this provision permits the assumption of a victim's restitution
rights only where the victim was a natural person, not a
corporation. As Harvey argues, "[a] corporation cannot be 'under
18 year[s] of age' or 'incompetent' in a legal sense . . . . [And]
[c]orporations do not have 'legal guardian[s],' 'estate[s],' or
7 We also find the government's argument regarding the
Crime Victims Fund to be misplaced. The question of whether the
district court was authorized to, in the alternative, direct
Harvey's restitution payments to the fund is not properly before
this court. The district court had stated in the February Order
that it would, on the government's motion, direct Harvey's
restitution payments to the Crime Victims Fund only if KCP could
not be reinstated as the receiver. KCP was reinstated as the
receiver, the government did not seek to have the restitution
directed to the Crime Victims Fund instead, and the amended final
judgment from which Harvey appeals substituted only KCP (not the
Crime Victims Fund) as the restitution payee.
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'family member[s].'" Because SHC was a corporation, 18 U.S.C.
§ 3663A(a)(2) did not permit KCP to "assume" SHC's restitution
rights nine years after the restitution order was entered.8
III. Conclusion
Because the district court lacked jurisdiction to amend
the final criminal judgment, the amended judgment is vacated.
- Concurring Opinion Follows -
8 This holding does not preclude a district court from
naming a corporate victim's successor-in-interest as the
restitution payee at the time the initial restitution order is
imposed, as was done in United States v. Nelson, No. 3:14-cr-
00024, 2015 WL 7302779, at *2 (W.D.N.C. Nov. 18, 2015) (cited by
the government).
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SELYA, Circuit Judge (concurring). A Victorian saying,
meant to encourage morality, admonishes that "crime does not pay."
I write separately to underscore that the court's opinion in this
case does not fly in the teeth of that venerable admonition.
Let me be perfectly clear. I join unreservedly in the
opinion of the court and in its holding that the district court
acted without authority when it amended the criminal judgment to
alter the payee of Harvey's restitution. Importantly, though,
this is not the end of the road.
To begin, I acknowledge that our vacation of the amended
judgment — compelled by precedent — may appear to have an
inequitable result. After bilking more than $600,000 from his
corporate victim, Harvey has paid only a paltry portion of the
ordered restitution. The district court's substitution of the
receiver as the restitution payee was designed to give practical
effect to Harvey's sentence. Even though the law requires us to
vacate that substitution, our opinion is limited to the district
court's lack of jurisdiction to amend the judgment. It should not
be read as signifying that Harvey no longer owes any restitution.
Corporations commonly evolve. They, like people, can
cease to exist. Although the Mandatory Victims Restitution Act of
1996 (MVRA), 18 U.S.C. § 3663A, does not provide an avenue for
modifying a restitution order to substitute a restitution payee
for a dissolved corporate payee in situations like Harvey's, see
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ante at 17-19, this statutory lacuna does not lead inexorably to
the conclusion that when a corporate victim named in a restitution
order dissolves, restitution payments to it must abate. Here, I
think it is possible that Harvey may still be held liable for the
unpaid restitution amounts.
To be sure, the issue is not before us on this appeal.
I want to suggest, however, that the corporate victim's entitlement
to Harvey's restitution payments may still be in play. The MVRA
contemplates that a victim named in a restitution order may obtain
an abstract of judgment enforceable as a civil lien on a
defendant's property. See 18 U.S.C. § 3664(m)(1)(B). But I do
not read this provision as foreclosing the alternative that a
"victim could initiate a separate civil suit" in which "the
wrongdoer's liability would be incontestable as a result of
[section] 3664(l)." United States v. Sawyer, 521 F.3d 792, 797
(7th Cir. 2008) (Easterbrook, J.). I see no reason why such a
path would not be open to the receiver here: it was appointed by
a Massachusetts state court, and vested with the authority to
institute and prosecute litigation in the corporate victim's name
to pursue claims of, or recover property or amounts due to, that
corporation. So, too, the receiver was vested with all the
incidental powers generally available under Massachusetts law.
There is another possible route to enforcement. It seems
to be an open question whether a criminal judgment must in all
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cases be amended for restitution payments to be redirected to an
entity that is not named in the restitution order. In some
instances, it may be appropriate for restitution payments to be
collected by such an entity. This might be permissible, say, when
a corporate victim and a substitute payee are deemed to be the
same corporation. See United States v. Hundley, No. 02-00441,
2013 WL 12384285, at *2 (S.D.N.Y. Oct. 8, 2013) (ordering, without
amending the criminal judgment, that restitution payments be
issued to entity entitled to corporation's right to restitution
because entity was "deemed" same corporation based on operation of
federal statute); cf. United States v. Phaneuf, 91 F.3d 255, 265
(1st Cir. 1996) (affirming, on plain-error review, process by which
probation department directed restitution payments to Federal
Deposit Insurance Corporation even though restitution order named
only defunct bank as restitution payee).
The short of it is that our vacation of the district
court's amended judgment does not speak to either the viability or
the enforceability of Harvey's criminal restitution obligation.
Given the circumscribed nature of our holding, I think that there
are avenues that the government or the receiver may yet choose to
explore in order to ensure that Harvey does not receive an
- 22 -
undeserved windfall.9 To my mind, the ends of justice would be
served by such exploration.
9 Of course, this problem might have been avoided had the
district court, when designating a restitution payee, not only
named the corporation but also specified that the order would run
to the benefit of the corporation's successors and assigns. Some
courts apparently have considered the MVRA's statutory definition
of "victim" to be sufficiently elastic to encompass even
unidentified successors. See, e.g., Judgment, United States v.
Diaz-Cabrera, No. 14-109 (D.P.R. Aug. 4, 2015), ECF No. 628
(requiring restitution to be paid to "RG Premier Bank (or its
successor)"); Order, United States v. Shahidy, No. 01-312
(S.D.N.Y. July 24, 2002), ECF No. 40 (ordering portion of
restitution to "MicroAge, Inc., or its successors").
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