United States District Court, D. Maine
ORDER ON AVAILABILITY OF RESTITUTION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
order addresses a request for mandatory restitution from a
victim of sex trafficking under 18 U.S.C. § 1593, after
the expiration of the ninety-day period after the imposition
of the sentence under 18 U.S.C. § 3664. The Court
concludes that it retains the authority to order restitution
even though more than ninety days have passed since the
imposition of the sentence.
August 7, 2019, just before the sentencing hearing, the
Government filed a motion for restitution on behalf of J.R.,
the named victim in Counts One and Three of the Indictment in
this case. Gov't's Mot. for Rest. (ECF No.
88). In the motion, the Government requested a restitution
figure of $9, 450 for J.R. or suggested that the Court could
defer a restitution order for ninety days pursuant to 18
U.S.C. § 3664. Id. at 4-5. At the August 7,
2019, sentencing hearing itself, however, the Court deferred
ordering restitution for the victim pursuant to 18 U.S.C.
§ 3664(d)(5) at the request of the Government and
without objection from the Defendants. Tr. of
Proceedings at 63:18-64:16 (ECF No. 105). The Assistant
United States Attorney (AUSA) explained that she had only
recently learned that the victim was seeking restitution and
therefore needed additional time to resolve the restitution
issue. Id. at 63:22-64:11. Following the hearing, on
October 7, 2019, Mr. Graham conceded that the “claimed
amount is not unreasonable.” Def.'s Opp'n
to Gov't's Mot. for Restitution at 1 (ECF No.
102) (Def.'s Opp'n). At the same time, Mr.
Graham objected to a restitution order to the extent the
Court ordered anything above a minimal payment because he
could not pay restitution. Id. at 2-3.
October 22, 2019, the Court set a conference of counsel for
November 21, 2019 to discuss the status of the restitution
motion. Notice of Hr'g on Mot. Re: Mot. Rest. as to
Vincent Graham (ECF No. 104). On November 19, 2019, Mr.
Graham's counsel moved to continue the conference of
counsel because he needed more time to speak with his client.
Unopposed Mot. to Continue Conf. of Counsel Regarding
Forfeiture (ECF No. 106). In its order granting the
motion to continue, the Court pointed to the ninety-day
provision of 18 U.S.C. § 3664 and asked counsel to
address it. Order (ECF No. 107).
November 26, 2019, the Government filed its position
memorandum, arguing that the United States Supreme Court in
United States v. Dolan, 560 U.S. 605 (2010), held
that “the fact that a sentencing court misses the
statute's 90-day deadline, even through its own fault or
that of the Government, does not deprive the court of the
power to order restitution.” Notice of
Gov't's Position Regarding 90-Day Requirement for
Imposition of Order of Rest. at 2 (quoting
Dolan, 560 U.S. at 611) (ECF No. 108). On November
26, 2019, Mr. Graham conceded that he “does not dispute
that the Court has the authority to order restitution, even
beyond the 90 day period . . ..” Notice Regarding
the Imposition of Restitution Beyond the 90 Day Deadline
at 1 (ECF No. 109). Yet, Mr. Graham urged the Court not to
order restitution, contending that the Government violated
the statute by failing to provide restitution information
“seasonably in advance of sentencing.”
Id. at 2.
November 27, 2019, the Government moved for oral argument or
an evidentiary hearing on the restitution issue.
Gov't Mot. for Expedited Hr'g to Determine
Mandatory Rest. (ECF No. 110). The Government stated
that it requested additional time at the sentencing hearing
“in order to give the Defendant an opportunity to
digest and respond to the formal motion.” Id.
at 1. The Government asked for an expedited hearing
“[i]n light of the Defendant's unexpected change in
position on this significant issue . . ..” Id.
at 3. On December 2, 2019, Mr. Graham responded, stating that
he thought the Court had enough information to rule on the
motion, that he did not believe additional material would be
helpful, that an oral argument was unnecessary, and affirming
that Mr. Graham did not wish to be present at any further
hearing on restitution. Def.'s Resp. to
Gov't's Mot. for Oral Arg. (ECF No. 111). On
December 2, 2019, the Office of the Clerk of Court for the
United States District Court contacted the AUSA who confirmed
she would not file a reply.
is room in this case to debate who, if anyone, has been at
fault for the delay in the Court's imposition of a
restitution figure. The Presentence Investigation Report as
revised on April 26, 2019 indicated that although restitution
was mandatory, no restitution requests had been received.
Presentence Investigation Report ¶
102. The Probation Office was unaware of any
“identifiable victim.” Id. Neither the
Government nor Mr. Graham raised restitution in their
sentencing memoranda. Gov't's Sentencing
Mem. (ECF No. 80); Def.'s Sentencing Mem.
(ECF No. 84). The day of the sentencing hearing the
Government presented a written restitution motion, but the
AUSA stated in response to the Court's inquiry:
THE COURT: There was some discussion of restitution - -
Ms. MCELWEE: Yes, Judge.
THE COURT: - - and - -
MS. MCELWEE: We didn't - - we didn't learn until very
recently that [restitution] was being requested, and - -
although it is mandatory and she doesn't have to request
it, but I wasn't going to submit for it if she didn't
want me to. And so we wanted to file it just so that the
defendant was - - understood that we were requesting it, but
we're not asking you to make that determination today. We