United States v. Fox ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 96-5348
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Charles FOX, John Franklin, Defendants-Appellants.
May 13, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 95-787-CR-
DLG), Donald L. Graham, Judge.
Before EDMONDSON and BARKETT, Circuit Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
Charles Fox and John Franklin appeal from their convictions and sentences for conspiracy
to commit bank robbery and carrying or using a firearm during and in relation to a crime of violence.
The only issue raised by Fox on appeal is whether the trial court erred in failing to grant his motion
to suppress his pre-trial identification by a bank teller on the grounds that the photographic line-up
used was unduly suggestive. Franklin raises three claims on appeal, arguing that his conviction and
sentence should be reversed because: (1) his post-arrest confession should not have been admitted
because the government intentionally failed to preserve that portion of his statement which was
exculpatory; (2) the government failed to present sufficient evidence to support a finding that the
deposits of the Credit Union Service Center, a victim institution, was federally insured, a necessary
element of the bank robbery offense; and (3) the trial court erred in ordering him to pay restitution.
Upon review of the relevant portions of the record and the briefs of the parties, we conclude
that the district court did not abuse its discretion in finding that, under the circumstances, the
photographic array was not suggestive and did not create a risk of misidentification. Nor did the
district court abuse its discretion in denying Franklin's motion to exclude his confession. We also
conclude that the government presented sufficient evidence of the Credit Union Service Center's
federal insurance. Accordingly, we AFFIRM both Fox's and Franklin's convictions.
However, we REVERSE the portion of the trial court's sentence that orders Franklin to make
restitution. The pre-sentence investigation report ("PSR") noted that Franklin had not finished high
school, had only a limited ability to make a living, had spent eleven years in state prison from 1978
to 1989, and had no significant assets, and concluded that he was unable to pay a fine.
The Government argues that Franklin failed to make a timely objection regarding the
restitution issue because defense counsel did not raise that issue until after the judge announced the
sentence. The Government's argument is plainly without merit. In United States v. Jones, 899 F.2d
1097, 1102 (11th Cir.1990), overruled on other grounds, 984 F.2d 1136 (11th Cir.1993) (en banc),
exercising our supervisory power over the district courts, we instructed the courts "to elicit fully
articulated objections, following imposition of sentence, to the court's ultimate findings of fact and
conclusions of law." We specifically noted that the probation officer's addendum to the PSR,
incorporating the parties' initial objections to the officer's findings, "cannot serve ... to limit the
objections cognizable on appeal, because it does not take into account what transpires at the
sentencing hearing itself." Id. After imposing sentence, the district court inquired whether Franklin
objected "to the Court's findings of fact or the manner in which sentence was pronounced."
Franklin's attorney immediately gave the following response:
Your Honor, the only thing is that I don't think Mr. Franklin has any realistic expectation of
being able to pay restitution in [the amount ordered].
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The [PSR] indicates he doesn't have even the assets to pay a fine at this time. It's
unlikely in 42 years he'll have any more significant assets.
Clearly, Franklin's objection to the court's restitution order was not waived.
As to the merits of Franklin's claim, we find that the district court failed to comply with the
requirements of the Victim and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C. §§ 3663-64.
The VWPA provides that the sentencing court "shall consider ... the financial resources of the
defendant, the financial needs and earning ability of the defendant and the defendant's dependents,
and such other factors as the court deems appropriate" before ordering restitution. 18 U.S.C. §
3664(a) (emphasis supplied). The government suggests that United States v. Davis, 117 F.3d 459,
463 (11th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 355, 139 L.Ed.2d 276, and --- U.S. ----, 118
S.Ct. 395, 139 L.Ed.2d 309 (1997), precludes relief because Franklin failed to meet his burden of
demonstrating his financial resources by a preponderance of the evidence. However, as we stated
in United States v. Twitty, 107 F.3d 1482, 1493 (11th Cir.), cert. denied, --- U.S. ----, 118 S.Ct. 253,
139 L.Ed.2d 181 (1997), on which Davis relies:
district courts are not obligated to make explicit factual findings of a defendant's ability to
pay restitution if the record provides an adequate basis for review. [Citations omitted.]
Conversely, "we will not uphold the district court's exercise of discretion if the record is
devoid of any evidence that the defendant is able to satisfy the restitution order." United
States v. Remillong, 55 F.3d 572, 574-75 (11th Cir.1995) (quoting United States v. Patty, 992
F.2d 1045, 1052 (10th Cir.1993)). [Footnote omitted.] "If the record is insufficient, reasons
must be assigned." Hairston, 888 F.2d at 1353 (quoting United States v. Patterson, 837 F.2d
182, 183-84 (5th Cir.1988)). (emphasis supplied).
In both Davis and Twitty, the PSR contained sufficient information to clearly support the
district court's conclusion that the defendants in those cases had the ability to pay restitution. In this
case, the converse is true. The PSR makes clear that Franklin does not have the financial ability to
make restitution. The government's argument that the fact that some of the proceeds of the robbery
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were not recovered is not an adequate basis, in and of itself, for a finding that a defendant had the
financial ability to pay restitution. See Remillong, 55 F.3d at 575-76.
AFFIRMED IN PART and REVERSED AND REMANDED IN PART.
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