Igbinovia v. State , 111 Nev. 699 ( 1995 )

Steffen, C. J.,

concurring in part and dissenting in part:

I concur in the majority’s rulings in the Mack and Menzelli cases recognizing the right of a sentencing court to require the restitution of drug “buy money” expended by police agents, as a condition of probation. I dissent from the majority’s ruling in Igbinovia reversing the district court’s imposition of restitution of drug buy money to the police department as part of Igbinovia’s sentence. In accordance with the foregoing, further comments in this dissent will relate strictly to the Igbinovia case.

If I were to place a label on this case, it would be the “Straining at a Gnat and Swallowing a Camel” case. It is, I suggest, a paradigm which could have inspired the Chinese Proverb “[gjoing to law is losing a cow for the sake of a cat,” and could have prompted Macklin to opine that “[t]he law is a sort of hocus-pocus science that smiles in your face while it picks your pocket; and the glorious uncertainty of it is of more use to the professors than the justice of it.”

In citing the above quotations, I mean no disrespect for my colleagues in the majority or the other courts who have engaged in the art of analytical jurisprudence in which they have been trained. Indeed, both lawyers and judges are attuned to careful distinctions, semantical exercises, and sophisticated interpretations. Unfortunately, we frequently do so at the expense of reason and good common sense. Coke has said that “[r]eason is the life of the law; nay, the common law itself is nothing else but reason.” Finally, Hill has stated that “[l]aw that shocks equity is reason’s murder.”

Before joining the world of semantics and addressing the accepted meaning of the word “victim” in response to my colleagues in the majority, I am unable to resist a few additional generalities that are, I suggest, endowed with reason and common sense. Our federal, state, and local governments in this republic are all governments “of the people, by the people and for the people.” Our law enforcement agencies are part of government and, by extension, part of the people for whose benefit government exists and by whom the government is financially supported. Moreover, I submit as an irrefutable truth that when those who prey on society by selling illicit drugs can be apprehended only through the undercover use of “buy money,” and the criminals from whom the drugs are “purchased” are permitted to keep the money, all honest, taxpaying citizens are victims. Indeed, our taxpayers are victims in at least two ways: the loss of their money, and being forced by the courts to permit the seller of the drugs to profit from the transaction. In the latter sense, the taxpayers are actually coerced into subsidizing the criminal purveyors of drugs! Moreover, the law itself is a victim, for it is forced to forfeit the well-established principle of law that a wrongdoer will not be allowed to profit from his or her own wrongdoing. I seriously doubt that any of the honest citizens of our state would agree that it is either just or reasonable that persons engaged in selling illicit drugs should be allowed to keep money provided by police officers in order to secure their arrest and conviction. If Coke is right in suggesting that the life of the law is reason and that the common law is nothing but reason, then it appears that both have been undermined by today’s decision.

Since reason and justice are obviously an insufficient basis for addressing what appears to me to be a rather simple issue, I will engage my colleagues in the world of semantics and judicial precedent that have led them to believe that the law prevents the district court from ordering Igbinovia to restore the taxpayers’ funds to the police department as part of his sentence.

Citing NRS 176.033,¹ the majority frame the issue as “whether Metro [Las Vegas Metropolitan Police Department] is a ‘victim’ within the meaning of NRS 176.033.” Noting that the Legislature has provided no definition of the term “victim” in the referenced statute, the majority assumes the challenge of interpreting the meaning of the term, the policy behind it, and whether the Legislature “envisioned that police departments who expend money to obtain evidence are ‘victims’ ” within the intendment of the statute. The majority undertakes the task by looking to other jurisdictions, observing that the “overwhelming majority” of the courts considering the issue have held that the police who have parted with “buy money” in order to apprehend criminals are not “victims.”

In citing to cases from other jurisdictions, the majority relies primarily on cases that have held that investigatory agencies are not victims when they expend public funds as part of their normal operating costs. See U.S. v. Meacham, 27 F.3d 214 (6th Cir. 1994); People v. Chaney, 544 N.E.2d 90 (Ill. App. Ct. 1984); People v. Evans, 461 N.E.2d 634 (Ill. App. Ct. 1984); State v. Evans, 512 N.W.2d 259 (Wis. Ct. App. 1994). In Chaney, the court relied solely on People v. Evans for its ruling. Chaney, 544 N.E.2d at 91. In turn, People v. Evans relied exclusively on Evans v. Garrison, 657 F.2d 64 (4th Cir. 1981) as authority for holding that “ [t]he government entity conducting an investigation is not. . . considered a victim to the extent that public monies are expended [in the pursuit of solving crimes].” People v. Evans, 461 N.E.2d at 639. Thus, albeit indirectly, the majority in the instant case, and the courts in Chaney and People v. Evans all rely on Garrison as support for their rulings.

Reliance upon Garrison is misplaced, however, because the ruling did not involve drug “buy money,” but rather reimbursing the drug division for the expenses it incurred in investigating charges and obtaining proof which led to guilty pleas. Garrison, 657 F.2d at 66. Equally important, the Garrison court was dealing with a North Carolina statute that expressly provided that “no government agency shall benefit by way of restitution . . . except for particular damage or loss to it over and above its normal operating costs.” N.C. Gen. Stat. § 15A-1343(d) (1943).

Neither the majority nor the cases cited by the majority attempt to distinguish between “expenses incurred in investigating charges” implicated in Garrison, and the “buy money” involved in the instant case. A major distinction between mere operating costs and “buy money” is that the criminal does not profit from the former. A police officer in Durham, North Carolina, stated the obvious on the point when he said:

In the days of moonshine investigations, the sheriff would go out and buy a little liquor, arrest the buy right then and get his money back. But if you do that with drugs, you only end up with the little guy, not the big distributors .... And with cocaine costing about $3,000 an ounce, we may put out $40,000 before we even make an arrest.

Legislator Wants Seized. Property to Aid Law Enforcement Agencies, Durham Morning Herald, July 6, 1985, at 6A.

Since Garrison did not refer to “buy money,” it is likely that the reference to “normal operating costs” included only the ordinary expenses such as lab costs, salaries, and normal investigative costs. In any event, “buy money” is in a special category because absent the right to require restitution, the state is actually providing a source of profit for those it arrests. In a very real sense, the taxpayers’ money would be “seed money” for farther criminal activity against the taxpayers and their children. Thus, both the police department, which is merely an extension of government by and of the people, and the citizens themselves are victims not only through losing the money paid to the criminals and having to replace it with more tax dollars, but also in having the taxpayers’ money retained by criminals as a matter of right, thereby subsidizing their capacity to further injure society.

Moreover, there is irony in the majority rejecting for statutory reasons, several of the cases that are in opposition to its ruling, while embracing Chaney and People v. Evans, which derive their holdings from the statute-based ruling of Garrison. Thus, the majority fails to differentiate between a statute exempting “normal operating costs” from restitutory eligibility, and NRS 176.033, which contains no constraints on restitution other than that which is “appropriate.” Clearly, “buy money” is not a normal operating cost because, left in the hands of the criminals, it becomes a source of promoting crime rather than deterring it.

I find it both interesting and appalling that the majority reaches for a definition of “victim” that rewards the criminal and punishes the taxpayers who furnish the “buy money” to our law enforcement agencies. Equally troubling, the majority finds persuasive the “commonly-understood notions of passivity” attached to the word “victim,” “where the harm or loss suffered is generally unexpected and occurs without the voluntary participation of the person suffering the harm or loss.” Where does this “commonly understood” notion of “passivity” come from? I suggest that a search of dictionary definitions of the term reveals a far more expansive connotation of the term than one who passively suffers harm inflicted by another. A victim who is defrauded into parting with his or her money actively participates, albeit unwittingly, in the loss of his or her funds. One who is provoked into a fight may nevertheless become the victim of the other’s violence despite being a participant in the fray. In short, I find little basis in reason or human experience to limit the term “victim” to those who suffer loss or injury “passively.”

More to the point, since Metro was merely an extension of the people who provided the “buy money,” there would be a combination of passivity (in the unaware taxpayer-victims whose money was being used) and the more active participation of the police in providing the means for the criminal to commit a monitored crime. Moreover, it defies reason to assume that the police are engaging in undercover operations involving “buy money” with the expectancy that the money somehow lawfully becomes the property of the criminals and will therefore not be the subject of an order of restitution upon conviction and sentencing. Can it seriously be argued that it is a normal operating cost for taxpayers to have their “buy money” consumed for the simultaneous punishment and financial benefit of the criminals the money is used to apprehend and bring to justice? The majority quotes from U.S. v. Gibbens, 25 F.3d 28 (1st Cir. 1994), a case where an enlightened federal district court judge was reversed for ordering restitution as part of the sentence imposed on a criminal defendant engaged in the criminal misuse of food stamps. As quoted by the majority, the Gibbens court stated that “[i]t defies common usage to envision an entity that planned and provoked a crime as a victim in the same sense that a passive sufferer of harm is a victim, notwithstanding that the entity may have experienced loss.” Gibbens, 25 F.3d at 34. With due respect to the majority and the Gibbens court, I find the quoted material substantially lacking in insight and common sense, at least to the extent that it could be applied to a convicted drug dealer’s right to retain the public’s “buy money.”

In the first place, if the “entity” actually planned and provoked the crime, I suppose the entity itself should have been prosecuted. It seems clear, however, that the “entity” merely provided the means for the criminal to engage in what he thought would be a profitable continuation of his criminal enterprise. Nevertheless, because the police agency lost its funds in apprehending a criminal rather than in passively having its pockets picked, it apparently was not deemed to be a “passive” victim deserving of restitution, despite the fact that the loss would have been identical in either case. If the “buy money” or the food stamps were stolen from the police station, then, presumably, the loss would be sufficiently passive to warrant a sentence of restitution on the part of the thief.

Fortunately, other courts without benefit of legislative definition have viewed the meaning of the word “victim” in a more reasonable light. In People v. Narron, 192 Cal. App. 3d 724 (Ct. App. 1987), the court held that the county could require restitution for expenses incurred in disposing of controlled substances and dangerous chemicals discovered in the defendant’s residence. The Narron court considered the county a “victim” because the “policies of [the statute] favor a definition which includes the government where it suffered loss flowing from a defendant’s criminal conduct.” Id. at 731. The court in State v. Topping, 590 A.2d 252 (N.J. Super. Ct. App. Div. 1991) also considered the meaning of the term “victim” without benefit of legislative guidance. In imposing a sentence of restitution to reimburse the county for “buy money,” the court interpreted the statutory use of the term “victim” to include those who suffer losses as the direct result of a criminal offense. Id. at 254. Under either Narron or Topping, Metro would appropriately qualify for restitution of its “buy money” as a victim within the intendment of our statute.

Perhaps most perplexing of all, the majority purports to interpret the meaning of the term “victim” in accordance with the public policy underlying NRS 176.033. My review of the majority opinion has failed to reveal any semblance of consideration for or deference to public policy. I suggest that they would be hard-pressed to do so. Does anyone seriously think that legislators, representing their respective constituencies, would expect public approval of a policy that would apply tax revenues to the financial benefit of criminals by allowing them to keep “buy money” that happened to be used in effectuating their arrest?

In State v. Connelly, 421 N.W.2d 859 (Wis. Ct. App. 1988), the court considered whether a convicted drug dealer should be required, as a condition of probation, to provide restitution to the police department for the “buy money” he had received. Concluding that restitution was appropriate, the court stated that “[s]ociety may be no less a victim of this type of criminal conduct than an individual who may be more directly harmed.” Id. at 861. Similarly, in People v. Richards, 552 P.2d 97, 100-01 (Cal. 1976), the court observed that restitution “may serve the statutory purpose of making a criminal understand that he has harmed not merely society in the abstract but also individual human beings, and that he has a responsibility to make them whole.” Finally, in Narron, the court noted that restitution ensures “that amends ... be made to society for the breach of the law.” Narron, 192 Cal. App. 3d at 726.

With due respect for my colleagues in the majority, I fail to understand how their interpretation in favor of public immolation advances any worthy or decent cause or policy. They supply a meaning to “victim” that enriches criminals at the expense of the taxpayers, and actually provides the convicted drug dealers with added resources to further prey on our citizens and their children. To compound the injury, they force the taxpayer to underwrite the drug industry in every case where “buy money” is used to effectuate an arrest and a prison sentence is imposed. In attempting to divine a reason — any reason — for such a ruling, the only one that surfaces is the absurdity that perhaps it lessens the sting of the criminal’s incarceration, also at the taxpayer’s expense.

Finding no reason to support the majority’s ruling concerning Igbinovia, I respectfully dissent with the fervent hope that the Legislature will fill the void in the common law that this court has failed to resolve or recognize.²

1 In pertinent part, NRS 176.033 provides:

Sentence of imprisonment required or permitted by statute: Definite period; restitution; modification of sentence.

1. If a sentence of imprisonment is required or permitted by statute, the court shall:

(a) Sentence the defendant to imprisonment for a definite period of time . . . ; and

(b) If restitution is appropriate, set an amount of restitution for each victim of the offense and for expenses related to extradition ....

2 I note in passing my agreement with the majority’s conclusion that Igbinovia may not be required to pay restitution for offenses concerning which he has neither pleaded guilty, nor been found guilty, nor despite the lack of conviction, has otherwise agreed to provide restitution.