United States v. Tori K. Collins

Case: 15-12805 Date Filed: 04/26/2017 Page: 1 of 22
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12805
________________________
D.C. Docket No. 1:15-cr-00056-WSD-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TORI K. COLLINS,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 26, 2017)
Before MARTIN and JORDAN, Circuit Judges, and COOGLER, * District Judge.
JORDAN, Circuit Judge:
*
Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
Case: 15-12805 Date Filed: 04/26/2017 Page: 2 of 22
Tori Collins pled guilty to conspiracy to accept gratuities with the intent to
be influenced or rewarded in connection with a bank transaction, in violation of 18
U.S.C. §§ 215 & 371. The district court sentenced Ms. Collins to a two-year term
of probation. It also ordered her to pay $251,860.31 to her former employer, Wells
Fargo, pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A,
finding that her conviction qualified as an “offense against property.” Ms. Collins
appeals the restitution order, arguing that the MVRA does not apply to her.
Ms. Collins also contends that, even if her crime is an “offense against property,”
restitution should not have been awarded because her conduct did not proximately
cause any losses to Wells Fargo.
We affirm the district court’s order of restitution. Ms. Collins facilitated
bank transactions that proximately caused Wells Fargo’s losses, and she intended
to derive an unlawful benefit from the property that was the subject of these
transactions. She therefore committed an “offense against property” as that phrase
is understood in its ordinary and contemporary sense.
I
Ms. Collins worked as a personal banker at a Wells Fargo branch in Atlanta,
Georgia. At some point in early 2013, a man named Gerald Mack visited the
branch where Ms. Collins worked. Mr. Mack, who introduced himself as G.
Shakir, told Ms. Collins that he had friends and clients who wished to open new
2
Case: 15-12805 Date Filed: 04/26/2017 Page: 3 of 22
bank accounts, so Ms. Collins gave him her business card for referrals. Mr.
Mack’s story was a lie. In reality, Mr. Mack was in possession of stolen U.S.
Treasury checks. His plan was to cash the checks by depositing them in bank
accounts and then withdraw the stolen funds, all with the help of bank employees.
Soon after they met, Mr. Mack and Ms. Collins developed a friendship, and
he began to ask her to carry out various bank transactions. Although she knew that
the transactions violated bank rules, Ms. Collins did as Mr. Mack requested. She
opened accounts under the names of either fictitious persons or the intended
recipients of the stolen U.S. Treasury checks. Sometimes she added the payees of
the checks to preexisting accounts. She also deposited some of the stolen checks
for Mr. Mack and, on the day of the deposits or sometime after, withdrew the
stolen funds and took them to him. And she deposited and withdrew funds from
accounts that had been opened by Brandon Kelly, another bank employee recruited
by Mr. Mack. Once, Ms. Collins handed Mr. Mack the proceeds in the parking lot
of the bank. In exchange for her help, Mr. Mack paid Ms. Collins $6,000 and gave
her a pair of sneakers.
Because Mr. Mack was depositing stolen U.S. Treasury checks, Wells Fargo
had to reimburse a number of the intended payees for their losses. All told, Wells
Fargo lost $276,714.71 from the accounts that Ms. Collins opened or from which
she facilitated withdrawals.
3
Case: 15-12805 Date Filed: 04/26/2017 Page: 4 of 22
Ms. Collins pled guilty to a single charge of conspiracy in violation of § 371.
The object of the conspiracy was the payment and acceptance of gratuities in
violation of § 215. The elements of a § 371 conspiracy are an agreement among
two or more persons to achieve an unlawful objective; knowing and voluntary
participation in the agreement; and the commission of an overt act by a conspirator
in furtherance of the agreement. See United States v. Hasson, 333 F.3d 1264, 1270
(11th Cir. 2003). As relevant here, the gratuities provision, § 215(a)(2), prohibits
an employee of a financial institution from “corruptly accept[ing] or agree[ing] to
accept, anything of value from any person, intending to be influenced or rewarded
in connection with any business or transaction of such institution.”
At Ms. Collins’ sentencing hearing, the district court addressed the
applicability of the MVRA, which among other things requires restitution for an
“offense against property.” See § 3663A(c)(1)(A)(ii). The district court explained
that it had “thought hard about whether” it should look to the elements of the
offense or, instead, to the specific facts of the case to determine whether Ms.
Collins had committed an “offense against property.” See D.E. 26 at 5.
Ultimately, the district court decided on a “case-by-case evaluation” of the facts
and ruled that the crime fell within the scope of the MVRA because Ms. Collins
“was charged with a conspiracy, and that conspiracy was in fact intended to
deprive people of property that they owned.” Id. At the conclusion of the
4
Case: 15-12805 Date Filed: 04/26/2017 Page: 5 of 22
sentencing hearing, the district court imposed a two-year term of probation and
ordered Ms. Collins to pay $251,860.31 in restitution to Wells Fargo. 1
II
The legality of the district court’s restitution order is subject to plenary
review. See United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008).
The district court’s underlying factual findings, on the other hand, are reviewed for
clear error. See id. A federal district court has no inherent authority to order
restitution, and may do so only as explicitly empowered by statute. See id.III
The “primary and overarching purpose” of the MVRA, enacted in 1996, is to
“make victims of crime whole, to fully compensate these victims for their losses
and to restore these victims to their original state of well-being.” United States v.
Boccagna, 450 F.3d 107, 115 (2d Cir. 2006). When the MVRA applies, restitution
is mandatory. See United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015). A
defendant must pay restitution under the MVRA if she is convicted of a certain
covered offense “in which an identifiable victim or victims has suffered a physical
injury or pecuniary loss.” § 3663A(c)(1)(B). The restitution award must be the
1
Although Wells Fargo suffered $276,714.71 in losses, the district court reduced the restitution
figure by $24,854.40. Ms. Collins argued that when she began helping Mr. Mack open accounts
and make withdrawals, she did not immediately know that he was depositing stolen U.S.
Treasury checks. See D.E. 26 at 5–15. The government supported her position, see id., and the
district court agreed to subtract the losses Wells Fargo sustained due to the earliest transactions
of the conspiracy.
5
Case: 15-12805 Date Filed: 04/26/2017 Page: 6 of 22
full amount of the victim’s loss that was actually and proximately caused by the
defendant’s conduct, regardless of the defendant’s current or anticipated ability to
pay. See United States v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010). The
MVRA, by its own terms, specifies four types of crimes that trigger mandatory
restitution: (1) crimes of violence, as defined in 18 U.S.C. § 16; (2) “offense[s]
against property,” including those “committed by fraud or deceit”; (3) offenses
related to tampering with consumer products; and (4) offenses relating to theft of
medical products. See § 3663A(c)(1)(A).
Ms. Collins argues that her conviction for conspiring to accept bank
gratuities does not constitute an “offense against property” under the MVRA.
First, she contends that the district court erred by examining the facts of her case,
and urges us to adopt a “categorical approach” which considers only the elements
of the offense of conviction. Under that approach, Ms. Collins says, mandatory
restitution does not apply because none of the elements of her offense are “against
property.” Second, Ms. Collins maintains that, even if we consider her underlying
conduct, her receipt of cash gratuities was not an “offense against property” and
was not committed through fraud or deceit. Third, Ms. Collins argues that, in any
event, she did not proximately cause Wells Fargo’s losses.
6
Case: 15-12805 Date Filed: 04/26/2017 Page: 7 of 22
A
What, exactly, is an “offense against property” under the MVRA,
§ 3663A(c)(1)(A)(ii)? That is the question of first impression that confronts us in
this appeal.
Although the Supreme Court has addressed some provisions of the MVRA,
see, e.g., Robers v. United States, 134 S. Ct. 1854, 1856 (2014) (analyzing
§ 3663A(b)(1)(B)), it has yet to explain what constitutes an “offense against
property” under the Act. Cases from our sister circuits, however, reflect a broad
spectrum of opinion.
On the narrower end, some circuits have held that, at the very least, an
“offense against property” includes criminal activity with the objective of
knowingly and intentionally damaging property. An example is United States v.
Quarrell, 310 F.3d 664, 678 (10th Cir. 2002) (holding that the defendants’
conviction for conspiring to violate the Archaeological Resources Protection Act
qualified because, though “not every conspiracy will involve an offense against
property,” the unlawful objective of the conspiracy at issue was to “illegally
excavate public land,” in furtherance of which the defendants “knowingly and
voluntarily . . . damaged the land”).
Other circuits dispense with the intent requirement, approving mandatory
restitution whenever an offense results in physical harm to property. See, e.g.,
7
Case: 15-12805 Date Filed: 04/26/2017 Page: 8 of 22
United States v. Sawyer, 825 F.3d 287, 292 (6th Cir. 2016) (holding that the
defendant’s conviction for conspiracy to violate the Clean Air Act, a scheme
involving the improper demolition of buildings with asbestos-containing material,
was an “offense against property” because it “resulted in the asbestos
contamination of nearly 300 acres of land”); United States v. Brock-Davis, 504
F.3d 991, 993, 996–98 (9th Cir. 2007) (concluding that the MVRA provided
statutory authority, in a case involving a conspiracy to manufacture
methamphetamine, to order payment of restitution to “a motel owner for clean-up
costs he incurred remediating a motel room in which the defendant had cooked
methamphetamine”).
Some circuits, however, have ordered mandatory restitution in cases where
there is no physical damage to property. The offenses in those cases have involved
the intentional deprivation, or attempted deprivation, of another’s property. See,
e.g., United States v. Turner, 718 F.3d 226, 236 (3d Cir. 2013) (holding that a
conspiracy to defraud the IRS was an “offense against property” because the
defendant had deprived the government of its property, i.e., tax dollars). Cf.
Robers, 134 S. Ct. at 1856 (though not directly addressing § 3663A(c)(1)(A)(ii),
affirming restitution order under the MVRA for conspiracy to commit wire fraud).
Indeed, the Ninth Circuit has specifically rejected the argument that the phrase
“‘against property’ requires physical damage to property.” See United States v.
8
Case: 15-12805 Date Filed: 04/26/2017 Page: 9 of 22
Luis, 765 F.3d 1061, 1066 (9th Cir. 2014). It has held that the phrase encompasses
all criminal conduct that “infring[es] on a victim’s property interest,” id. at 1065,
as was the case in United States v. Stephens, 374 F.3d 867, 868, 870–72 (9th Cir.
2004), where it ruled that failing to pay child support qualified because the offense
infringed on the other parent’s property interest in the omitted payments.
For our part, we have held, albeit without much explanation, that various
types of fraud, and their attendant false or misleading representations, are
“offense[s] against property.” See, e.g., United States v. Singletary, 649 F.3d 1212,
1220 (11th Cir. 2011) (wire fraud); Huff, 609 F.3d at 1247 (same); United States v.
Dickerson, 370 F.3d 1330, 1335 (11th Cir. 2004) (same).
As the wide range of opinions in these cases illustrates, we lack a conclusive
definition. Without a binding directive, we now turn to the statute and apply
ordinary rules of statutory construction.
B
Our construction of § 3663A(c)(1)(A)(ii) begins “with the language of the
[provision] itself.” United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998)
(en banc). Where, as here, a statute does not define a term or phrase, those words
generally take “their ordinary, contemporary, common meaning . . . at the time
Congress enacted the statute.” Perrin v. United States, 444 U.S. 37, 42 (1979)
(citation omitted).
9
Case: 15-12805 Date Filed: 04/26/2017 Page: 10 of 22
We start with the rather unremarkable observation that “against” is not the
same as “relating to” or “concerning.” See Webster’s New World College
Dictionary 26, 288, 1132 (3d ed. 1996). The latter two (and their synonyms)
sweep much more broadly, and would encompass offenses with little more than
some connection to property.
This distinction matters because, in the process of reading a statute, it is our
“duty . . . to give effect, if possible, to every clause and word[,] . . . avoiding . . .
any construction which implies that the legislature was ignorant of the meaning of
the language it employed.” Inhabitants of Montclair Twp. v. Ramsdell, 107 U.S.
147, 152 (1883). Indeed, we “must presume that a legislature says in a statute
what it means.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992).
Had Congress intended § 3663A(c)(1)(A)(ii) to apply to all criminal acts involving
property, even if only tangentially, we think it would have said so. But Congress
did not, and the more restrictive language employed counsels against an expansive
construction of § 3663A(c)(1)(A)(ii).
We believe that a more faithful reading respects the connotation of
directedness engendered by “against.” See Webster’s New World College
Dictionary 26 (3d ed. 1996). Property, therefore, must serve as the object of the
offense, not simply a collateral component. See Black’s Law Dictionary 371 (6th
ed. 1990) (defining “crime against property” as “a crime, the object of which is
10
Case: 15-12805 Date Filed: 04/26/2017 Page: 11 of 22
property as contrasted with person; e.g., larceny”). At its simplest, this
understanding includes offenses in which the defendant intends to damage
another’s property, as was the case in Quarrell, 310 F.3d at 678. See Webster’s
New World College Dictionary 26 (3d ed. 1996) (defining “against,” in part, as
“toward so as to press on or strike”). It also includes situations where the
defendant seeks to derive an unlawful benefit from another’s property or otherwise
deprive a person of his property, therefore acting “in opposition to” or “contrary
to” the classic property rights of ownership and possession. See id. (also defining
“against” as “in opposition to; contrary to”). Under any of these readings,
however, criminal conduct does not necessarily qualify as an “offense against
property” solely because it results in property damage or because someone suffers
a loss at some point during its execution. 2
In our view, the framework of § 3663A supports this interpretation. See
Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989) (“[T]he words of a
statute must be read in their context and with a view to their place in the overall
statutory scheme.”). Generally speaking, § 3663A(b) prescribes what an order of
restitution must require of a defendant, with subsection (b)(1) specifying that, “in
2
For purposes of the MVRA, the words “offense” and “crime” are essentially interchangeable.
The MVRA itself cross-references the two words. Compare § 3663A(a)(1) (requiring courts to
order restitution when “a defendant [is] convicted of an offense described in subsection (c)”),
with § 3663A(c) (explaining that mandatory restitution applies to “any offense” that is “a crime
of violence, as defined in [§] 16,” which, in turn, defines “crime of violence” as “an offense”
with certain characteristics).
11
Case: 15-12805 Date Filed: 04/26/2017 Page: 12 of 22
the case of an offense resulting in damage to or loss or destruction of property of a
victim,” the defendant must either return the property or pay the victim some
amount to compensate for the loss. Equating “offense[s] against property” in
subsection (c)(1) to “offense[s] resulting in damage to or loss or destruction of
property of a victim” in subsection (b)(1) collapses the two subsections. We do not
think that is what Congress intended, for it could have easily used the language in
subsection (b)(1) to define the covered offenses.
This construction further harmonizes § 3663A with its discretionary
restitution counterpart, 18 U.S.C. § 3663. See Food & Drug Admin. v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (directing courts to interpret
statutes as part of “a symmetrical and coherent regulatory scheme” and to “fit, if
possible, all parts into an harmonious whole”) (citations and internal quotation
marks omitted). Under § 3663, courts can impose, on a discretionary basis,
restitution for any offense under Title 18 (and other miscellaneous statutes), except
that for “an offense described in [§] 3663A(c),” the court has no discretion and
restitution must be imposed. See § 3663(a)(1)(A).
Significantly, § 3663(b)(1) mirrors § 3663A(b)(1), providing that “in the
case of an offense resulting in damage to or loss or destruction of property of a
victim,” the defendant “may” be ordered to return the property or pay the victim
some amount for the loss. If “offense against property” under § 3663A(c)(1)(A)(ii)
12
Case: 15-12805 Date Filed: 04/26/2017 Page: 13 of 22
means any “offense resulting in damage to or loss or destruction of property,”
§ 3663(b)(1) would largely be meaningless, because offenses resulting in damage
to or loss of property would always be “against property” and never eligible for
discretionary restitution. Rather than reading § 3663A(c)(1)(A)(ii) to nullify much
of § 3663, our construction allows “the two . . . to stand together.” Thomas M.
Cooley, A Treatise on the Constitutional Limitations Which Rest upon the
Legislative Power of the States of the American Union 58 (1868).
Excluding offenses with only incidental property loss is also more consistent
with the common-law roots of the phrase “offense against property.” See, e.g.,
California v. Minjares, 443 U.S. 916, 927 (1979) (Rehnquist, J., dissenting)
(describing “crimes against person and property” as “the traditional common-law
crimes”). When Congress “uses a common-law term of established meaning
without otherwise defining it, the general practice is to give that term its
common-law meaning.” United States v. Turley, 352 U.S. 407, 411 (1957). See
generally Felix Frankfurter, Some Reflections on the Reading of Statutes, 47
Colum. L. Rev. 527, 535 (1947) (“[I]f a word is obviously transplanted from
another legal source, whether the common law or other legislation, it brings the old
soil with it.”).
At common law, offenses or crimes against property referred to a specific set
of criminal conduct: “larceny, embezzlement, cheating, cheating by false pretenses,
13
Case: 15-12805 Date Filed: 04/26/2017 Page: 14 of 22
robbery, receiving stolen goods, malicious mischief, forgery, and uttering forged
instruments.” Black’s Law Dictionary 1251 (10th ed. 2014) (defining “offense
against property”). Merely damaging or destroying property would not have met
the definition for any of these offenses. For example, malicious mischief, the
closest common-law offense for damaging another’s property, required intentional
destruction or damage. See id. at 1101. By borrowing from the annals of common
law, Congress “presumably . . . adopt[ed] the cluster of ideas that were attached,”
Morissette v. United States, 342 U.S. 246, 263 (1952), including the common-law
understanding that an “offense against property” is not committed simply because
criminal conduct occasions property loss.
The clause “including those committed by fraud or deceit” does not broaden
the meaning of “offense against property.” Introduced by the illustrative
“including,” the phrase refers to conduct that is a subset of “offense against
property,” and not an independent covered offense under the MVRA. See Fed.
Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) (“[T]he
term ‘including’ is not one of all-embracing definition, but connotes simply an
illustrative application of the general principle.”). So, “those [offenses against
property] committed by fraud or deceit” must still have property as their object to
qualify. See § 3663A(c)(1)(A)(ii) (emphasis added).
14
Case: 15-12805 Date Filed: 04/26/2017 Page: 15 of 22
C
We next consider the analytical framework district courts should apply to
determine whether an offense is against property for purposes of the MVRA. The
parties advocate two different approaches. The one advocated by the government
and applied by the district court considers the factual circumstances underlying the
offense of conviction. The other, urged by Ms. Collins, is the categorical
approach, in which courts limit their analysis to the elements of the offense of
conviction.
Ms. Collins argues that in United States v. Keelan, 786 F.3d 865 (11th Cir.
2015), we held that the categorical approach governs the determination of whether
a crime falls within one of the MVRA’s enumerated categories. In our view, she
overstates our holding in Keelan. The defendant in Keelan, who had been
convicted of knowingly using means of interstate commerce to persuade a minor to
engage in sexual activity, challenged the district court’s order of restitution
pursuant to § 3663A(c)(1)(A)(i), which provides for mandatory restitution for any
offense that is a “crime of violence, as defined in [§] 16.” See Keelan, 786 F.3d at
869–70. We had previously applied the categorical approach to determine whether
a conviction qualifies as a crime of violence under § 16. See Dixon v. U.S. Att’y
Gen., 768 F.3d 1338, 1342–43 (11th Cir. 2014). And because § 3663A(c)(1)(A)(i)
defines “crime of violence” by explicit reference to § 16, we applied the
15
Case: 15-12805 Date Filed: 04/26/2017 Page: 16 of 22
categorical approach to determine whether the Keelan defendant’s offense was a
“crime of violence” for purposes of § 3663A(c)(1)(A)(i). See Keelan, 786 F.3d at
869–72.
Here, however, the MVRA does not define “offense against property” by
referring to another statute, and we have never considered whether to apply the
categorical approach to determine whether an offense qualifies as an “offense
against property” in any context. As a result, Keelan does not resolve whether
sentencing courts must apply the categorical approach to determine whether an
offense was an “offense against property” for purposes of § 3663A(c)(1)(A)(ii).
We must decide that issue for the first time here.
The text of § 3663A(c)(1)(A)(ii) persuades us to reject the categorical
approach in this context. The provision uses language that the Supreme Court has
previously said suggests consideration of the underlying conduct. In Taylor v.
United States, 495 U.S. 575 (1990), the Court was tasked with defining “burglary”
under the sentencing enhancement provisions of the Armed Career Criminal Act,
18 U.S.C. § 924(e), and setting forth the method by which sentencing courts were
to determine whether a defendant’s prior state-law burglary conviction qualified
for the enhancement. Relying in part on the word “element” in § 924(e), the Court
ultimately decided that, with rare exception, sentencing courts should apply the
categorical approach, looking “only to the statutory definitions of the prior
16
Case: 15-12805 Date Filed: 04/26/2017 Page: 17 of 22
offenses, and not to the particular facts underlying those convictions.” See Taylor,
495 U.S. at 600–01. In adopting the categorical approach, the Court also relied on
the fact that § 924(e) refers to a person who “has three previous convictions” for
certain types of crimes, and not to a person who has “committed” those crimes. Id.
The Court, in other words, believed that the word “committed” would have served
as a congressional directive to sentencing courts to consider the underlying
conduct. See id. And so, describing a covered offense in terms of how it was
“committed” suggests consideration of the underlying conduct, without which we
could not know how an offense was actually committed or carried out.
Unlike § 924(e), § 3663A(c)(1)(A)(ii) does not define an “offense against
property” by referring to the “element[s]” of the offense. Further, it describes an
“offense against property” by reference to how it was “committed”—specifically,
it specifies that an “offense against property” “include[s] any offense committed by
fraud or deceit.” 18 U.S.C. § 3663A(c)(1)(A)(ii). We agree with the premium the
Supreme Court placed on the word “committed” and the absence of the word
“element,” and we therefore decline to apply the categorical approach to determine
whether a conviction qualifies as an “offense against property” under
§ 3663A(c)(1)(A)(ii). 3
3
The presence or absence of the word “element” in a statute does not, on its own, resolve the
issue here. Indeed, we have applied the categorical approach in cases where the federal
sentencing statute makes no mention of “elements.” See, e.g., United States v. James, 430 F.3d
17Case: 15-12805 Date Filed: 04/26/2017 Page: 18 of 22
Our decision today to eschew the categorical approach puts us in line with a
number of decisions by our sister courts, which, though not expressly discussing
the issue, have focused on the conduct underlying the offense of conviction instead
of the elements of the crime. See, e.g., Luis, 765 F.3d at 1065–66; United States v.
Pescatore, 637 F.3d 128, 138–39 (2d Cir. 2011); Quarrell, 310 F.3d at 678.
D
With a definition and analytical framework in hand, we now turn to the
question of whether Ms. Collins committed an “offense against property.” In cases
such as this one, where the conviction is for conspiracy, we focus on the offense
that was the object of the unlawful scheme. See Singletary, 649 F.3d at 1220(looking to the “objects of the conspiracy” to determine the applicability of the
MVRA). The unlawful conduct here was that Ms. Collins, as an “employee . . . of
a financial institution,” “corruptly accept[ed] or agree[d] to accept, anything of
value from any person, intending to be influenced or rewarded in connection with
any business or transaction of such institution.” See § 215(a)(2). Ms. Collins’
predicate offense, in so many words, was the illegal acceptance of gratuities.
We have previously noted that there may be a question about whether
bribery is an “offense against property” under the MVRA. See United States v.
1150, 1154 (11th Cir. 2005) (applying the categorical approach to determine whether a particular
offense is a “serious drug offense” under the ACCA).
18
Case: 15-12805 Date Filed: 04/26/2017 Page: 19 of 22
McNair, 605 F.3d 1152, 1221 n.107 (11th Cir. 2010). As with bribery, it is not
readily apparent to us that a gratuities offense will always trigger mandatory
restitution under the MVRA. For example, there may be situations where the
government establishes criminal liability under § 215(a)(2) without demonstrating
that any improperly influenced transaction implicated someone else’s property.
We need not address all variants of a gratuities offense because, in this case,
the evidence demonstrates that Ms. Collins sought to derive an unlawful benefit
from the property at play in the bank transactions she corruptly facilitated.
Specifically, Ms. Collins admitted that she withdrew $69,000 from a bank account
for Mr. Mack. See D.E. 25 at 42–44. At the time of the withdrawal, that money
belonged to Wells Fargo. See Shaw v. United States, 137 S. Ct. 462, 466 (2016)
(explaining that a bank owns the deposited funds). By accepting Mr. Mack’s cash
payment in connection with transactions such as this one, Ms. Collins intentionally
derived an unlawful pecuniary gain by taking property belonging to Wells Fargo,
thereby making her gratuities offense an “offense against property.” Cf. Black’s
Law Dictionary 454 (10th ed. 2014) (defining “crime against property” as an
“offense[ ] in which the perpetrator seeks to derive an unlawful benefit from . . .
another’s property without the use or threat of force”).
19
Case: 15-12805 Date Filed: 04/26/2017 Page: 20 of 22
E
Almost as an afterthought, Ms. Collins contends that, to the extent she
committed an “offense against property,” she did not proximately cause Wells
Fargo’s losses. She devotes most of her briefing on this issue to rehashing her
arguments on the proper analytical approach. See Br. of Appellant at 19–21.
When she finally gets around to the causation analysis, she argues, in one
conclusory paragraph with no explanation, that Wells Fargo’s losses stemmed from
Ms. Mack’s fraud and “perhaps from [her] . . . witting or unwitting assistance,” but
not from her acceptance of gratuities. See id. at 21. Though her failure to fully
brief this issue arguably constitutes abandonment, see Auto-Owners Ins. Co. v. Se.
Floating Docks, Inc., 632 F.3d 1195, 1201 n.7 (11th Cir. 2011) (explaining that
some “arguments . . . are so conclusory that they are deemed abandoned”), we
address it anyway.
Under the MVRA, sentencing courts must order restitution for a victim’s
“actual loss directly and proximately caused by the defendant’s offense of
conviction.” United States v. Sharma, 703 F.3d 318, 323 (5th Cir. 2012). The
“[d]efendant’s conduct need not be the sole cause of the loss,” but it cannot be “too
attenuated (either factually or temporally).” United States v. Robertson, 493 F.3d
1322, 1334 (11th Cir. 2007) (citations omitted). Here, the government proved that
Wells Fargo’s loss “would not have occurred but for” Ms. Collins’ conduct. Id.20
Case: 15-12805 Date Filed: 04/26/2017 Page: 21 of 22
The question, then, is whether Ms. Collins’ actions proximately caused Wells
Fargo’s losses. The district court found that they did, see D.E. 26 at 4–15, and we
review this factual finding for clear error. See Robertson, 493 F.3d at 1334.
We have addressed proximate causation in the MVRA context before. In
United States v. Washington, 434 F.3d 1265, 1266 (11th Cir. 2006), the defendant
robbed a bank and fled. Several police cars were damaged in the ensuing chase.
The district court ordered the defendant to pay the police department restitution for
the property damage. See id. at 1266–68. On appeal, the defendant did not dispute
that the MVRA applied to his bank robbery conviction, but he argued that his
offense was not the proximate cause of the police department’s property damage.
See id. at 1268. We rejected this argument and affirmed the order of restitution
because flight was a natural component of bank robbery and because the defendant
could have foreseen that any ensuing high-speed chase would result in property
damage. See id. at 1268–69.
Wells Fargo’s losses here were even more foreseeable than the police
department’s in Washington, where at least the defendant could not have known
with certainty that various police cars would be damaged. By contrast, Wells
Fargo having to reimburse its customers for the fraud enabled by its own employee
was the natural—if not inevitable—consequence of Ms. Collins’ actions.
Moreover, Ms. Collins directly facilitated Mr. Mack’s scheme by processing the
21
Case: 15-12805 Date Filed: 04/26/2017 Page: 22 of 22
withdrawals of the funds on his behalf. She even physically effectuated some of
Wells Fargo’s losses by walking money out the bank’s doors, allaying any concern
that those losses were “too [physically or temporally] attenuated.” See Robertson,
493 F.3d at 1334. Given Ms. Collins’ role as a bank employee, we do not believe
that the district court clearly erred in finding that she could have reasonably
foreseen Wells Fargo’s losses.
IV
For these reasons, we affirm the district court’s order of restitution under the
MVRA.
AFFIRMED.
22