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United States v. Graham

United States District Court, D. Maine

December 2, 2019




         This 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.

         I. BACKGROUND

         On 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.

         On 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).

         On 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.

         On 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.


         There 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 ...

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