United States v. DeThouars ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 12/20/96
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-1039
(D.C. No. 94-CR-405)
MORGAN ANNE DETHOUARS, also (D. Colo.)
known as Morgan Counts, also known
as Linda Anne Morgan,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before PORFILIO, ALARCON, ** and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Defendant Morgan Anne DeThouars pled guilty to one count of wire fraud
under 18 U.S.C. §§ 1343 and 2, and one count of money laundering under
18 U.S.C. §§ 1957 and 2. The district court sentenced defendant to eighteen
months’ imprisonment, and ordered her to make full restitution of $3,472,090, to
be paid jointly and severally with her husband, codefendant William Olson.
Defendant appeals the restitution order, contending the district court
improperly required her to pay the ordered amount when there was no evidence of
her ability to pay. We review de novo the legality of a district court’s order of
restitution, and review for clear error any underlying factual findings. United
States v. Guthrie, 64 F.3d 1510, 1514 (10th Cir. 1995). Usually, we review the
amount of the restitution order within statutory limits for an abuse of discretion.
United States v. Harris, 7 F.3d 1537, 1539 (10th Cir. 1993). However, in this
case our review is for plain error because defendant did not make any objection to
the restitution order. United States v. Wainwright, 938 F.2d 1096, 1098 (10th
Cir. 1991). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Defendant stipulated in her plea agreement that she and her husband
“knowingly and intentionally devised and aided and abetted a scheme to defraud
investors of approximately $4,178,697 in funds from approximately 700 investors
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by means of false representations and promises. . . .” R. Vol. I, Doc. 11, at 9.
Defendant agreed the amount of loss to the investors was $3,472,090, the full
amount of the funds misappropriated by defendant and her husband, less refunds
already made to some victims. R. Vol. I, Doc. 31.
Restitution orders are governed by the Victim and Witness Protection Act,
18 U.S.C. §§ 3663-3664. At the time of defendant’s sentencing, restitution orders
were required to “be consistent with a defendant's ability to pay.” United States
v. McIlvain, 967 F.2d 1479, 1481 (10th Cir.1992); see also
18 U.S.C. § 3664(a)(stating that the court shall consider “the financial resources
of the defendant” in determining whether to order restitution). 1 “The burden of
demonstrating the financial resources of the defendant and the financial needs of
the defendant . . . shall be on the defendant.” 18 U.S.C. § 3664(d). “The fact that
a defendant is without financial resources at the time of sentencing is not a bar to
a restitution order.” United States v. Kunzman, 54 F.3d 1522, 1532 (10th Cir.
1995)(citing United States v. Gabriele, 24 F.3d 68, 73 (10th Cir.1994)). The
order “will be upheld if the evidence indicates a defendant has some assets or
1
This statute was amended April 24, 1996, and it now provides: “In each
order of restitution, the court shall order restitution to each victim in the full
amount of each victim’s losses as determined by the court and without
consideration of the economic circumstances of the defendant.” 18 U.S.C.
§ 3664(f)(1)(A). Our review in this case, however, is limited to the sentence
imposed on the defendant by the district court prior to the amendment.
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earning potential and thus possibly may be able to pay the amount ordered.”
United States v. Rogat, 924 F.2d 983, 985 (10th Cir.), cert. denied, 499 U.S. 982(1991).
The plea agreement stipulated that the district court would order restitution
of at least $894,420, the amount that would otherwise have been subject to
criminal forfeiture, and not more than $3,472,090, the amount of full restitution.
R. Vol. I, Doc. 11, at 6. Prior to entering the plea agreement, the government
informed the defendant and the district court that it intended to request the full
restitution of $3,472,090. R. Vol. III, at 3. Defendant did not make an objection
at that time that she would be financially unable to make full restitution, id. at
3-4, 9-21, nor did she do so at sentencing, R. Vol. IV, at 9-15, 21-22.
Defendant stipulated in the plea agreement that she had “used several bank
accounts, including several domestic accounts and offshore accounts in the
Bahamas, as a repository of investor funds.” R. Vol. I, Doc. 11, at 10. Defendant
does not dispute that evidence was presented in her husband’s case that
approximately $3-4 million of investor money was placed in these bank accounts.
Defendant told the district court at sentencing that her husband might be able to
locate the money deposited in these accounts. R. Vol. IV, at 14. In ordering full
restitution, to be paid jointly and severally with defendant’s husband, the district
court primarily considered defendant’s ability to influence her husband to locate
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the funds secreted in these domestic and offshore bank accounts. Id. at 16, 17.
The court also took into consideration that defendant would not likely be able to
pay the full restitution when she was released from prison, but noted that the
obligation to make restitution would extend over her lifetime. The court also
noted that defendant should be able to gain employment after her release from
prison because she was a talented interior decorator and had a large support group
of family and friends. Id. at 7.
We conclude that defendant did not meet her burden of demonstrating her
inability to pay the restitution order, and that the district court did not abuse its
discretion, let alone commit plain error, in ordering defendant to make full
restitution.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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