Lagos v. United States ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LAGOS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 16–1519. Argued April 18, 2018—Decided May 29, 2018
Petitioner Sergio Fernando Lagos was convicted of using a company he
controlled to defraud a lender of tens of millions of dollars. After the
fraudulent scheme came to light and Lagos’ company went bankrupt,
the lender conducted a private investigation of Lagos’ fraud and par-
ticipated as a party in the company’s bankruptcy proceedings. Be-
tween the private investigation and the bankruptcy proceedings, the
lender spent nearly $5 million in legal, accounting, and consulting
fees related to the fraud. After Lagos pleaded guilty to federal wire
fraud charges, the District Court ordered him to pay restitution to
the lender for those fees. The Fifth Circuit affirmed, holding that
such restitution was required by the Mandatory Victims Restitution
Act of 1996, which requires defendants convicted of certain federal of-
fenses, including wire fraud, to, among other things, “reimburse the
victim for lost income and necessary child care, transportation, and
other expenses incurred during participation in the investigation or
prosecution of the offense or attendance at proceedings related to the
offense,” 18 U.S. C. §3663A(b)(4).
Held:
1. The words “investigation” and “proceedings” in subsection (b)(4)
of the Mandatory Victims Restitution Act are limited to government
investigations and criminal proceedings and do not include private
investigations and civil or bankruptcy proceedings. The word “inves-
tigation” appears in the phrase “the investigation or prosecution.”
Because the word “prosecution” must refer to a government’s crimi-
nal prosecution, this suggests that the word “investigation” refers to
a government’s criminal investigation. Similar reasoning suggests
that the immediately following reference to “proceedings” refers to
criminal proceedings. Furthermore, the statute refers to the victim’s
2 LAGOS v. UNITED STATES
Syllabus
“participation” in the “investigation,” and “attendance” at “proceed-
ings,” which would be odd ways to describe a victim’s role in its own
private investigation and as a party in noncriminal court proceed-
ings, but which are natural ways to describe a victim’s role in a gov-
ernment’s investigation and in the criminal proceedings that a gov-
ernment conducts.
Moreover, the statute lists three specific items that must be reim-
bursed: lost income, child care expenses, and transportation expens-
es. These are precisely the kind of expenses that a victim is likely to
incur when missing work and traveling to participate in a govern-
ment investigation or to attend criminal proceedings. In contrast,
the statute says nothing about the kinds of expenses a victim would
often incur during private investigations or noncriminal proceedings,
namely, the costs of hiring private investigators, attorneys, or ac-
countants. This supports the Court’s more limited reading of the
statute.
A broad reading would also require district courts to resolve diffi-
cult, fact-intensive disputes about whether particular expenses “in-
curred during” participation in a private investigation were in fact
“necessary,” and about whether proceedings such as a licensing pro-
ceeding or a Consumer Products Safety Commission hearing were
sufficiently “related to the offense.” The Court’s narrower interpreta-
tion avoids such controversies, which are often irrelevant to the vic-
tim because over 90% of criminal restitution is never collected.
The Court’s interpretation means that some victims will not re-
ceive restitution for all of their losses from a crime, but that is con-
sistent with the Mandatory Victims Restitution Act’s enumeration of
limited categories of covered expenses, in contrast with the broader
language that other federal restitution statutes use, see, e.g., 18
U.S. C. §§2248(b), 2259(b), 2264(b), 2327(b). Pp. 3–7.
2. That the victim shared the results of its private investigation
with the Government does not make the costs of conducting the pri-
vate investigation “necessary . . . other expenses incurred during par-
ticipation in the investigation . . . of the offense.” §3663A(b)(4). That
language does not cover the costs of a private investigation that the
victim chooses on its own to conduct, which are not “incurred during”
participation in a government’s investigation. Pp. 7–8.
864 F.3d 320, reversed and remanded.
BREYER, J., delivered the opinion for a unanimous Court.
Cite as: 584 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1519
_________________
SERGIO FERNANDO LAGOS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 29, 2018]
JUSTICE BREYER delivered the opinion of the Court.
The Mandatory Victims Restitution Act of 1996 requires
defendants convicted of a listed range of offenses to
“reimburse the victim for lost income and necessary
child care, transportation, and other expenses in-
curred during participation in the investigation or
prosecution of the offense or attendance at proceedings
related to the offense.” 18 U.S. C. §3663A(b)(4) (em-
phasis added).
We must decide whether the words “investigation” and
“proceedings” are limited to government investigations
and criminal proceedings, or whether they include private
investigations and civil proceedings. In our view, they
are limited to government investigations and criminal
proceedings.
I
The petitioner, Sergio Fernando Lagos, was convicted of
using a company that he controlled (Dry Van Logistics) to
defraud a lender (General Electric Capital Corporation, or
GE) of tens of millions of dollars. The fraud involved
2 LAGOS v. UNITED STATES
Opinion of the Court
generating false invoices for services that Dry Van Logis-
tics had not actually performed and then borrowing money
from GE using the false invoices as collateral. Eventually,
the scheme came to light. Dry Van Logistics went bank-
rupt. GE investigated. The Government indicted Lagos.
Lagos pleaded guilty to wire fraud. And the judge, among
other things, ordered him to pay GE restitution.
The issue here concerns the part of the restitution order
that requires Lagos to reimburse GE for expenses GE
incurred during its own investigation of the fraud and
during its participation in Dry Van Logistics’ bankruptcy
proceedings. The amounts are substantial (about $5
million), and primarily consist of professional fees for
attorneys, accountants, and consultants. The Government
argued that the District Court must order restitution of
these amounts under the Mandatory Victims Restitution
Act because these sums were “necessary . . . other expenses
incurred during participation in the investigation . . . of
the offense or attendance at proceedings related to the
offense.” §3663A(b)(4). The District Court agreed, as did
the U. S. Court of Appeals for the Fifth Circuit. 864 F.3d
320, 323 (2017).
Lagos filed a petition for certiorari. And in light of a
division of opinion on the matter, we granted the petition.
Compare United States v. Papagno, 639 F.3d 1093, 1100
(CADC 2011) (subsection (b)(4) of the Mandatory Victims
Restitution Act does not cover private investigation costs),
with United States v. Elson, 577 F.3d 713, 726–729 (CA6
2009) (statute not so limited); United States v. Hosking,
567 F.3d 329, 331–332 (CA7 2009) (same); United States
v. Stennis-Williams, 557 F.3d 927, 930 (CA8 2009) (same);
United States v. Amato, 540 F.3d 153, 159–163 (CA2
2008) (same); United States v. Gordon, 393 F.3d 1044,
1056–1057 (CA9 2004) (same).
Cite as: 584 U. S. ____ (2018) 3
Opinion of the Court
II
The Mandatory Victims Restitution Act is one of several
federal statutes that govern federal court orders requiring
defendants convicted of certain crimes to pay their victims
restitution. It concerns “crime[s] of violence,” “offense[s]
against property . . . , including any offense committed by
fraud or deceit,” and two specific offenses, one concern-
ing tampering with a consumer product and the other
concerning theft of medical products. 18 U.S. C.
§3663A(c)(1)(A). It requires, in the case of property of-
fenses, return of the property taken or its value,
§3663A(b)(1); in the case of bodily injury, the payment of
medical expenses and lost income, §3663A(b)(2); in the
case of death, the payment of funeral expenses,
§3663A(b)(3); and, as we have said, supra, at 1, in all
cases, “reimburse[ment]” to
“the victim for lost income and necessary child care,
transportation, and other expenses incurred during
participation in the investigation or prosecution of the
offense or attendance at proceedings related to the of-
fense.” §3663A(b)(4) (emphasis added).
We here consider the meaning of that italicized phrase.
Specifically, we ask whether the scope of the words “inves-
tigation” and “proceedings” is limited to government inves-
tigations and criminal proceedings, or whether it includes
private investigations and civil or bankruptcy litigation.
We conclude that those words are limited to government
investigations and criminal proceedings.
Our conclusion rests in large part upon the statute’s
wording, both its individual words and the text taken as a
whole. The individual words suggest (though they do not
demand) our limited interpretation. The word “investiga-
tion” is directly linked by the word “or” to the word “prose-
cution,” with which it shares the article “the.” This sug-
gests that the “investigation[s]” and “prosecution[s]” that
4 LAGOS v. UNITED STATES
Opinion of the Court
the statute refers to are of the same general type. And the
word “prosecution” must refer to a government’s criminal
prosecution, which suggests that the word “investigation”
may refer to a government’s criminal investigation. A
similar line of reasoning suggests that the immediately
following reference to “proceedings” also refers to criminal
proceedings in particular, rather than to “proceedings” of
any sort.
Furthermore, there would be an awkwardness about the
statute’s use of the word “participation” to refer to a vic-
tim’s role in its own private investigation, and the word
“attendance” to refer to a victim’s role as a party in non-
criminal court proceedings. A victim opting to pursue a
private investigation of an offense would be more naturally
said to “provide for” or “conduct” the private investigation
(in which he may, or may not, actively “participate”). And
a victim who pursues civil or bankruptcy litigation does
not merely “atten[d]” such other “proceedings related to
the offense” but instead “participates” in them as a party.
In contrast, there is no awkwardness, indeed it seems
perfectly natural, to say that a victim “participat[es] in the
investigation” or “attend[s] . . . proceedings related to the
offense” if the investigation at issue is a government’s
criminal investigation, and if the proceedings at issue are
criminal proceedings conducted by a government.
Moreover, to consider the statutory phrase as a whole
strengthens these linguistic points considerably. The
phrase lists three specific items that must be reimbursed,
namely, lost income, child care, and transportation; and it
then adds the words, “and other expenses.” §3663A(b)(4).
Lost income, child care expenses, and transportation
expenses are precisely the kind of expenses that a victim
would be likely to incur when he or she (or, for a corporate
victim like GE, its employees) misses work and travels to
talk to government investigators, to participate in a gov-
ernment criminal investigation, or to testify before a
Cite as: 584 U. S. ____ (2018) 5
Opinion of the Court
grand jury or attend a criminal trial. At the same time,
the statute says nothing about the kinds of expenses a
victim would often incur when private investigations, or,
say, bankruptcy proceedings are at issue, namely, the
costs of hiring private investigators, attorneys, or account-
ants. Thus, if we look to noscitur a sociis, the well-worn
Latin phrase that tells us that statutory words are often
known by the company they keep, we find here both the
presence of company that suggests limitation and the
absence of company that suggests breadth. See, e.g., Yates
v. United States, 574 U. S. ___, ___ (2015) (slip op., at 14).
We add a practical fact: A broad reading would create
significant administrative burdens. The statute provides
for mandatory restitution, and the portion we construe is
limited to “necessary . . . other expenses.” §3663A(b)(4)
(emphasis added). The word “necessary” would, if the
statute is broadly interpreted, invite disputes as to whether
particular expenses “incurred during” participation in a
private investigation or attendance at, say, a bankruptcy
proceeding, were in fact “necessary.” Such disputes may
become burdensome in cases involving multimillion dollar
investigation expenses for teams of lawyers and account-
ants. A district court might, for example, need to decide
whether each witness interview and each set of documents
reviewed was really “necessary” to the investigation.
Similarly, the statute also limits restitution to expenses
incurred only during “attendance at proceedings related to
the offense,” ibid. (emphasis added), inviting disputes as
to whether, say, a licensing proceeding, a human resources
review, an in-house disciplinary proceeding, a job inter-
view, a Consumer Product Safety Commission hearing, or
a neighborhood watch meeting qualified as “proceedings”
sufficiently “related to the offense” so as to be eligible for
restitution.
To interpret the statute broadly is to invite controversy
on those and other matters; our narrower construction
6 LAGOS v. UNITED STATES
Opinion of the Court
avoids it. And one begins to doubt whether Congress
intended, in making this restitution mandatory, to require
courts to resolve these potentially time-consuming contro-
versies as part of criminal sentencing—particularly once
one realizes that few victims are likely to benefit because
more than 90% of criminal restitution is never collected.
See GAO, Federal Criminal Restitution: Most Debt Is
Outstanding and Oversight of Collections Could Be Im-
proved 25 (GAO–18–203, 2018) (explaining that the Jus-
tice Department considers 91% of outstanding criminal
restitution to be “uncollectible”).
There are, of course, contrary arguments—arguments
favoring a broad interpretation. The Government points
out, in particular, that our narrow interpretation will
sometimes leave a victim without a restitution remedy
sufficient to cover some expenses (say, those related to his
private investigation) which he undoubtedly incurred as a
result of the offense. Leaving the victim without that
restitution remedy, the Government adds, runs contrary
to the broad purpose of the Mandatory Victims Restitution
Act, namely, “to ensure that victims of a crime receive full
restitution.” Dolan v. United States, 560 U.S. 605, 612
(2010).
But a broad general purpose of this kind does not al-
ways require us to interpret a restitution statute in a way
that favors an award. After all, Congress has enacted
many different restitution statutes with differing lan-
guage, governing different circumstances. Some of those
statutes specifically require restitution for the “full
amount of the victim’s losses,” defined to include “any . . .
losses suffered by the victim as a proximate result of the
offense.” See 18 U.S. C. §§2248(b), 2259(b), 2264(b),
2327(b). The Mandatory Victims Restitution Act, however,
contains no such language; it specifically lists the kinds of
losses and expenses that it covers. Moreover, in at least
one other statute Congress has expressly provided for
Cite as: 584 U. S. ____ (2018) 7
Opinion of the Court
restitution of “the value of the time reasonably spent by
the victim in an attempt to remediate the intended or
actual harm incurred by the victim from the offense.”
§3663(b)(6). Again the Mandatory Victims Restitution Act
has no similar provision. And given those differences
between the Mandatory Victims Restitution Act and other
restitution statutes, we conclude that the considerations
we have mentioned, particularly those based on a reading
of the statute as a whole, tip the balance in favor of our
more limited interpretation.
We add that this interpretation does not leave a victim
such as GE totally without a remedy for additional losses
not covered by the Mandatory Victims Restitution Act.
GE also brought a civil lawsuit against Lagos for the full
extent of its losses, and obtained an over-$30 million
judgment against him. The Government says that GE
has largely been unable to collect on that judgment, but
there is no reason to think that collection efforts related
to a criminal restitution award would prove any more
successful.
The Government makes one additional argument. It
points out that GE shared with the Government the in-
formation that its private investigation uncovered. And
that fact, the Government says, should bring the expenses
of that investigation within the terms of the statute even if
the “investigation” referred to by the statute is a govern-
ment’s criminal investigation. The short, conclusive
answer to that claim, however, lies in the fact that the
statute refers to “necessary child care, transportation, and
other expenses incurred during participation in the inves-
tigation or prosecution of the offense.” §3663A(b)(4) (em-
phasis added). It does not refer to expenses incurred
before the victim’s participation in a government’s investi-
gation began. And the Government does not deny that it
is those preparticipation expenses—the expenses of con-
ducting GE’s investigation, not those of sharing the results
8 LAGOS v. UNITED STATES
Opinion of the Court
from it—that are at issue here. We therefore need not
address in this case whether this part of the Mandatory
Victims Restitution Act would cover similar expenses
incurred during a private investigation that was pursued
at a government’s invitation or request. It is enough to
hold that it does not cover the costs of a private investiga-
tion that the victim chooses on its own to conduct.
* * *
For the reasons stated, we conclude that the words
“investigation” and “proceedings” in the Mandatory Vic-
tims Restitution Act refer to government investigations
and criminal proceedings. Consequently Lagos is not
obliged to pay the portion of the restitution award that he
here challenges. We reverse the Court of Appeals’ judg-
ment to the contrary, and we remand the case for further
proceedings consistent with this opinion.
It is so ordered.