United States v. Gibbens

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-2203

UNITED STATES OF AMERICA,

Appellee,

v.

LEROY GIBBENS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

William Maselli for appellant.

Margaret D. McGaughey, Assistant United States Attorney,

with whom Jay P. McCloskey, United States Attorney, and Raymond

C. Hurley, Assistant United States Attorney, were on brief, for

appellee.

June 1, 1994

SELYA, Circuit Judge. This appeal presents an
SELYA, Circuit Judge.

unsettled question: is the government a "victim" within the

purview of the Victim and Witness Protection Act, 18 U.S.C.

3363-3364 (VWPA or the Act), and, thus, entitled to restitution,

when it provokes the commission of a crime that, by design,

directly results in depletion of public coffers? We answer this

question in the negative, concluding that, in such circumstances,

the sovereign is not entitled to restitution under the Act. At

the same time, we resolve a more pedestrian sentencing issue

which, although much bruited by appellant, has little substance.

I. BACKGROUND

Defendant-appellant Leroy Gibbens is a shoemaker who

did not stick to his last. Instead, Gibbens developed a sideline

as a broker of second-hand food stamps. In April 1992, the

United States Department of Agriculture (USDA) mounted an

investigation into food stamp trafficking in Lewiston, Maine.

The targets of the investigation included appellant and his son,

Zachary J. Gibbens.

In due course, an undercover agent approached Gibbens

the younger and his confederate, Joseph R. Beaulieu III, offering

to sell food stamps at roughly twenty-five cents on the dollar.1

The junior Gibbens, who had followed in his father's footsteps in

more ways than one, consummated a few small transactions with the

agent, reselling the bootleg food stamps in saloons and other

1Zachary Gibbens and Joseph Beaulieu were employed by
appellant at his shoe repair shop in Lewiston.

2

local haunts for thirty or forty cents on the dollar. He also

told his father of the agent's overtures, and, at his father's

urging, put the two men in contact with each other.

Appellant, having recently repaired to Florida, dealt

with the agent by telephone, wire, or mail, or by using his son

as an internuncio. In a half-dozen transactions during the

spring and summer of 1992, appellant bought stamps that had an

aggregate face value of $12,895, paying the agent approximately

one-fourth of that amount, and resold them at a profit. In their

communications throughout this period, appellant continually

importuned his vendor to furnish more stamps at more frequent

intervals. He also boasted about a putative partner, albeit

vaguely. Then, suddenly, to appellant's apparent dismay, the

stream of sales stopped in July of 1992.

Toward the end of that year, the agent renewed contact.

Appellant bought two more batches of food stamps at deep

discounts. The redemption value of the stamps acquired during

this period totalled $8,100. The second of these transactions

marked the initial face-to-face meeting between appellant and the

agent.

The government subsequently dropped the other shoe:

all three cobblers were arrested and a federal grand jury handed

up a fourteen-count indictment. Appellant pleaded guilty to one

count of conspiracy to acquire and use food stamps in an

unauthorized manner, 18 U.S.C. 371, and six counts alleging

unlawful possession of food stamps in violation of 7 U.S.C.

3

2024(b). The government agreed to dismiss the only other counts

in which appellant was featured.

The district court sentenced appellant on October 22,

1993. In constructing the guideline sentencing range (GSR), the

court started at offense level six. See U.S.S.G. 2F1.1(a). It

then factored in a four-level upward adjustment for amount of

loss, see U.S.S.G. 2F1.1(b)(1)(E) (specifying increment for

fraud cases involving losses ranging from $20,000 to $39,999.99),

a two-level enhancement for more-than-minimal planning, see

U.S.S.G. 2F1.1(b)(2)(A), and a two-level credit for acceptance

of responsibility, see U.S.S.G. 3E1.1. These computations

yielded an adjusted offense level of ten. For a defendant with a

negligible record of prior criminality (Criminal History Category

I), this adjusted offense level produced a GSR of six-to-twelve

months in prison.

The court imposed a six-month incarcerative sentence,

to be followed by three years of supervised release. The court

eschewed any fine, but ordered appellant to pay $15,230 to the

government as restitution. The court computed the amount of

restitution by aggregating the face value of the food stamps

handled by appellant (i.e., the sums owed by the USDA to the

retailers who ultimately presented those stamps for redemption)

and then subtracting the monies appellant paid to acquire the

stamps on the black market.

Appellant now challenges his sentence. He showcases

several assignments of error. The first two entries are merely

4

alternative formulations of a claim that the USDA engaged in

impermissible sentencing factor manipulation a claim which we

find lacking in merit. The other items relate, in one way or

another, to the order for restitution. Because we conclude that

the government does not qualify for statutory restitution on the

facts of this case, we need not address the remaining challenges

to the restitution order.

II. SENTENCING FACTOR MANIPULATION

The doctrine of sentencing factor manipulation is a

kissing cousin of the doctrine of entrapment. See United States

v. Connell, 960 F.2d 191, 194 (1st Cir. 1992) (coining term). A

determination as to whether improper manipulation exists is

ordinarily a factbound determination subject to clear-error

review. See United States v. Brewster, 1 F.3d 51, 54 (1st Cir.

1993); Connell, 960 F.2d at 193.

Though phrased in various ways, appellant's theory

boils down to an assertion that the USDA revived the

investigation, after soft-pedaling it for four months, not with a

view toward bringing the conspirators to heel, but for the sole

purpose of boosting appellant's offense level (and, hence,

ensuring a prison sentence). In support of this theory,

appellant notes that the GSR rose once the amount of loss

exceeded $20,000, see U.S.S.G. 2F1.1(b)(1)(E); that the last

transaction, which exposed him to this increase by bringing the

amount of loss over the $20,000 mark, was superfluous, as the

government had him dead to rights four months earlier; and that,

5

as soon as the government reached the $20,000 plateau, it halted

the sting.

To be sure, the sequence of events is suggestive but

there is another side to the story. By the USDA's account, the

press of other agency business necessitated a temporary

suspension of the investigation following a sale on July 20,

1992. The hiatus ended four months later because the agency's

workload had eased and the government needed proof, beyond a

reasonable doubt, of appellant's conspiratorial intent.2

Moreover, the USDA was hoping, based on appellant's allusions to

a supposed business partner, to land a bigger fish.

The prosecution also suggests that appellant's

predisposition to deal in food stamps on a long-term basis, as

evidenced by his incessant demands for more stamps at more

frequent intervals, undermines his claim that he was blindsided

by unfairly manipulative conduct. Although the district court

made an express, fully warranted finding that appellant remained

ready, willing, and eager to continue dealing bootleg food stamps

indefinitely and on an escalating scale, the government's point

is nonetheless of modest relevance. When an accusation of

sentencing factor manipulation surfaces, the judicial gaze

should, in the usual case, focus primarily though not

2On this scenario, the final transaction assumed particular
importance because previous deals had been conducted from afar,
and, without a face-to-face encounter, the government might be
hard pressed to verify appellant's identity in court. Cf., e.g.,

B. Franklin, Poor Richard's Almanac (1758) (warning that "for

want of a nail the shoe is lost").

6

necessarily exclusively on the government's conduct and

motives.3 See Brewster, 1 F.3d at 55 n.5 (explaining that an

inquiry into sentencing factor manipulation should concentrate

more on the government's activity than on the defendant's

predisposition); see also Connell, 960 F.2d at 194.

Undercover operations comprise a valuable, and

generally lawful, weapon in the government's armamentarium. See

Connell, 960 F.2d at 194. Thus, courts should proceed with

caution in staking out rules that will hinder government agents

who seek lawfully to set such ruses in motion. See id. at 196.

"Despite the fact that undercover operations by their nature

involve elements of furtiveness, duplicity, and manipulation, we

have never held that such initiatives are per se unfair. To the

contrary, we think that the Executive Branch is free, within

broad limits, to set such snares for unwary criminals." United

States v. Gifford, 17 F.3d 462, 470-71 (1st Cir. 1994); see also

United States v. Santana, 6 F.3d 1, 5-6 (1st Cir. 1993).

We can plot no bright line to separate the government's

ordinary conduct in a conventional sting operation from

extraordinary misconduct of a sort that might constitute

3To be sure, a defendant's predisposition, or the lack
thereof, may have evidentiary significance in an assessment of
the government's motives and conduct. Moreover, one can imagine
different species of sentencing factor manipulation, in some of
which predisposition may be of greater relevance. See, e.g.,

Connell, 960 F.2d at 196 (suggesting that sentencing factor

manipulation may include "overbearing[ing] the will of a person
predisposed only to committing a lesser crime"). We need not
probe these points too deeply, for, wholly apart from any
evidence of appellant's predisposition, the district court's
finding that no manipulation occurred is supportable.

7

sentencing factor manipulation. We believe the subject must be

approached on a case-by-case basis, albeit with due regard for

the potential dangers of sentencing factor manipulation, see

Connell, 960 F.2d at 196. Because the phenomenon, if it is found

to exist in a particular case, will operate to reduce a

defendant's offense level, the burden of showing sentencing

factor manipulation rests with the defendant. See United States

v. Morillo, 8 F.3d 864, 871 (1st Cir. 1993) (stating that a

"defendant bears the burden of proving entitlement to decreases

in the offense level"); United States v. Ocasio, 914 F.2d 330,

332-33 (1st Cir. 1990) (same; citing other cases). As with other

fact-sensitive sentencing issues, see, e.g., United States v.

David, 940 F.2d 722, 739 (1st Cir. 1991), cert. denied, 112 S.

Ct. 908, 1298, 2301 (1992), the burden of proof must be carried

by a preponderance of the evidence.

In an effort to hoist this burden, appellant intimates

that the present situation is inherently susceptible to

manipulation and, therefore, gives rise to a conclusive

presumption of official misconduct. We do not agree. The

inquiry must proceed as a stereotypical exercise in factfinding,

linked to an allocation of the burden of proof but uncluttered by

artificial presumptions. Putting matters in this perspective

reveals the fundamental weakness in appellant's position. The

government's explanation of the sequence of events, apparently

credited by the district court, is at least as plausible as the

adverse inference that appellant would have us draw. We have

8

held, time and again, that when a sentencing court is confronted

with two reasonable views of the record, and chooses to credit

one such view rather than the other, its choice cannot be termed

clearly erroneous. See, e.g., United States v. Ruiz, 905 F.2d

499, 508 (1st Cir. 1990); United States v. Jimenez-Otero, 898

F.2d 813, 815 (1st Cir. 1990). So here. Consequently, the lower

court did not commit clear error in holding appellant to the

devoir of persuasion and rejecting his claim of sentencing factor

manipulation.

III. THE GOVERNMENT AS VICTIM

In his most portentous assignment of error, appellant

posits that, on the facts of this case, the USDA is not a

"victim" within the meaning of the restitutionary provisions of

the Victim and Witness Protection Act, 18 U.S.C. 3663-3664.

This proposition presents a pure question of statutory

interpretation and, as such, invites de novo review. See, e.g.,

Gifford, 17 F.3d at 472; Liberty Mut. Ins. Co. v. Commercial

Union Ins. Co., 978 F.2d 750, 757 (1st Cir. 1992).

A. Conceptualizing the Problem.

This case falls into a grey area that separates two

established legal principles. On one hand, although once

problematic, see infra p. 16, it is by now settled that a

government entity (local, state, or federal) may be a "victim"

for purposes of the VWPA (and may be awarded restitution) when it

has passively suffered harm resulting directly from the

defendant's criminal conduct, as from fraud or embezzlement.

9

See, e.g., Ratliff v. United States, 999 F.2d 1023, 1027 (6th

Cir. 1993) (collecting cases); United States v. Hand, 863 F.2d

1100, 1103 (3d Cir. 1988) (collecting cases). This principle has

been applied, and properly so, to cases involving food stamp

fraud. See, e.g., United States v. Dudley, 739 F.2d 175, 178

(4th Cir. 1984).

On the other hand, the federal courts are consentient

to the effect that the government is not a "victim" for purposes

of VWPA (and may not be awarded restitution) to the extent that

it incurs costs in the clandestine provocation of a crime that,

if carried to fruition under ordinary circumstances, would not

directly harm the government.4 See, e.g., Gall v. United

States, F.3d , (6th Cir. 1994) [1994 U.S. App. LEXIS

6869, at *14] (holding that "drug buy" money advanced by the

4Courts interpreting analogous state statutes have divided
on this type of question. For example, some courts hold that,
when a government agency disburses money in a drug sting, it is
not a "victim" entitled to restitution. See, e.g., State v.

Newman, 623 A.2d 1355, 1364 (N.J. 1993); People v. Evans, 461

N.E.2d 634, 639 (Ill. App. 1984); see also Evans v. Garrison, 657

F.2d 64, 66 (4th Cir. 1981) (interpreting North Carolina
statute); People v. Rowe, 544 N.Y.S.2d 97, 98 (App. Div. 1989),

aff'd, 554 N.E.2d 1277 (N.Y. 1990) (same, but later superseded by

statute as discussed in People v. Davis, 582 N.Y.S. 2d 249, 250

(App. Div. 1992)). However, some courts have held to the
contrary. See, e.g., Commonwealth v. Runion, 628 A.2d 904, 906

(Pa. Super. 1993); State v. Rios, 465 N.W.2d 611, 613 (Neb.

1991); State v. Stallings, 342 S.E.2d 519, 521 (N.C. 1986)

(distinguishing and limiting Evans v. Garrison, supra); Oregon v.

Pettit, 698 P.2d 1049, 1051 (Or. App. 1985); see also Montana v.

Fertterer, 841 P.2d 467, 473 (Mont. 1992) (applying same rule in

sting directed at poaching scheme); State v. Hernandez, 822 P.2d

1011, 1014 (Idaho App. 1991) (allowing restitution for costs of
narcotics investigation). Because these cases tend to turn on
the wording of the statutes involved, they are not particularly
instructive for our purposes.

10

government is not recoverable under the VWPA); United States v.

Daddato, 996 F.2d 903, 905 (7th Cir. 1993) (similar) (dictum);

United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir. 1990)

(holding that money used by undercover government agent to

purchase false identification documents is not recoverable under

the VWPA); United States v. Finley, 783 F. Supp. 1123, 1127 (N.D.

Ill. 1991) (refusing to order restitution of funds extorted by

defendant from undercover agent). All four of these cases rely

at some level on the generality that investigatory costs do not

constitute a "loss" within the purview of the Act because such

costs are best conceived as voluntary outlays for the procurement

of evidence.5 See Gall, F.3d at [1994 U.S. App. LEXIS

6869 at *16]; Daddato, 996 F.2d at 905; Salcedo-Lopez, 907 F.2d

at 98; Finley, 783 F. Supp. at 1128.

What makes this case difficult is that it falls

somewhere between the two ends of the spectrum. While we deal

with a crime provoked by an undercover investigation, the crime

was designed to inflict harm on the government. If consummated

under circumstances not involving official participation, the

crime would have resulted in direct loss to the government in

exactly the manner that the government here experienced loss.

Nonetheless, the government instigated the particular incidents

for which it now claims the right to restitution indeed, had

5The relevant provision of the Act states that restitution
may be ordered "in the case of an offense resulting in damage to
or loss or destruction of property of a victim of the offense."
18 U.S.C. 3663(b)(1).

11

there been no official participation, the claimed losses would

not have eventuated. This means that here, unlike in either of

the more familiar prototypes, the difference between the face

value of the food stamps and the amount appellant paid for them

was both a calculated consequence of the defendant's crime and a

calculated cost of the government's investigation. As a result

of the hybrid nature of the loss, each side argues that this

difficult situation more closely resembles the prototype that

favors its position and neither argument can easily be

debunked.

B. Statutory Interpretation.

We envision the task of resolving this conundrum as an

exercise in statutory construction. Our role, of course, is as

interpreters of the words chosen by Congress, not as policymakers

or enlargers of congressional intent. This role requires that we

start with the statutory text.

1. Text. The VWPA states that restitution may be
1. Text.

awarded only to a "victim of the offense." 18 U.S.C.

3663(b)(1). A "victim of an offense" is defined as "any person

directly harmed by the defendant's criminal conduct in the course

of the scheme, conspiracy, or pattern." Id. 3663(a)(2). In

the idiom of the Act, the question we decide today is whether the

government is a "victim" in the sense that it is "harmed by the

defendant's criminal conduct" when it experiences loss that is

the direct, foreseeable consequence both of the criminal's

conduct and of the government's own machinations. Conceived in

12

this way, the question is one of first impression.6

We believe that the key phrase, "harmed by," as it

appears in the VWPA, is ambiguous. Under one reading of the

phrase, the statute is satisfied when, as now, an entity

experiences a loss directly and foreseeably caused in whole or in

part by the criminal's conduct. But this reading represents one

choice out of several. For example, it is also entirely possible

that the word "harm" denotes "aggregate harm" a construction

which, if adopted, would require the phrase to be read with a

view toward some type of cost-benefit analysis. In that event,

the very fact that the government knowingly incurred the loss

could be taken as signifying that, in its estimation, the game

was worth the candle. Put another way, the fact could evidence

the government's belief that the overall gain incapacitating

the targets of the investigation and deterring others from

embarking on similar schemes outweighed the out-of-pocket loss.

A second, more intriguing possibility is that "harmed

by" connotes passivity. In ordinary usage, "harm" is suffered at

the hands of another, while "loss" may be merely experienced or

sustained. It defies common usage to envision an entity that

6We realize that United States v. Dougherty, 810 F.2d 763

(8th Cir. 1987), involved substantially identical facts.
Nonetheless, the defendant there framed the legal issue
exclusively in terms of "loss," id. at 773. We agree with the

Dougherty court that the USDA incurs a loss in the course of a

food stamp sting. See id. But this conclusion, standing alone,

does not mean that the USDA may recover in restitution for the
loss when it stems from the cut-rate sale of food stamps by an
authorized government agent in the course of a sting. Under the
VWPA, the existence of "loss" does not end the requisite inquiry,
but, rather, marks its midpoint.

13

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. Courts cannot ignore

legislative decisions to use one particular word instead of

another. See, e.g., United States ex rel. Springfield Term. Ry.

Co. v. Quinn, 14 F.3d 645, 653-54 (D.C. Cir. 1994) (attributing

significance to Congress's choice of words). Since Congress

could have employed a more neutral construct in framing the Act,

itschoice of a phrase connoting passivity may well be meaningful.

A statute is ambiguous if it reasonably can be read in

more than one way. See United States v. O'Neil, 11 F.3d 292, 297

(1st Cir. 1993). Here, the alternative interpretations are

sufficiently plausible to render the statutory language

ambiguous. Consequently, we must search for guidance in the

legislative history and beyond. See id. at 297-98 (describing

standard protocol for statutory interpretation).

2. Legislative History. The VWPA was first enacted in
2. Legislative History.

1982 in an effort to afford greater protection to victims and

witnesses, and to enhance their stature in the criminal justice

system. See S. Rep. No. 532, 97th Cong., 2d Sess. 30, reprinted

in 1982 U.S.C.C.A.N. 2515, 2515-16. The object of the

restitution provisions in particular was to help "restore the

victim to his or her prior state of well-being." Id. at 2536.

Although the word "victim" was not precisely defined in either

the original Act or its accompanying commentary, it is pellucid

that, in the eyes of the enacting Congress, the prototypical

14

victim was a private individual. The preamble to the Senate

Report laments that the victim is all too often the "`forgotten

person'" in the legal process. Id. at 2516. With regard to the

restitution provisions, the only specific example of a victim

describes an elderly lady who, after being mugged, had to forgo

surgery because the prosecutors did not seek restitution in a

sufficient amount. See id. at 2536-37.

Absent a clearly marked trail leading in some other

direction, courts should presume that words used in a statute are

to be given their ordinary meaning. See United States v.

Dawlett, 787 F.2d 771, 774 (1st Cir. 1986). Here, the signposts

embedded in the legislative history indicate quite vividly that,

in enacting the VWPA, Congress used the word "victim" in such a

way. A victim is commonly considered to be a passive sufferer of

harm, that is, someone who is "tricked, duped, or subjected to

hardship . . . ." Webster's Third New International Dictionary

2550 (1981). Read against this lexicographical backdrop, calling

the organization that sets up a sting and carries it out a victim

is like calling the rabbit who lurks in Houdini's hat a magician.

To be sure, Congress amended the VWPA in 1990, adding a

statutory definition of "victim" as one "directly harmed by the

defendant's criminal conduct." 18 U.S.C. 3663(a)(2). However,

we resist the conclusion that, by specially defining "victim" on

this occasion, Congress meant to stray far enough from the common

meaning of the word to eliminate the element of passivity.

Rather, the legislative history attests that highly idiosyncratic

15

concerns motivated Congress's action.

The amendment first surfaced in the House and Senate

versions of the proposed "Banking Law Enforcement Act" under the

caption, "Enhancement of Ability to Order Restitution in Certain

Fraud Cases." See 136 Cong. Rec. H 5996 (daily ed., July 31,

1990); 136 Cong. Rec. S 18322 (daily ed., Nov. 2, 1990). It was

then incorporated into, and passed as part of, the sprawling

Crime Control Act of 1990, P.L. 101-647, 104 Stat. 4789. In that

incarnation, the definition comprised one of nine disparate

provisions grouped in a single title under the appellation

"Banking Law Enforcement." In floor remarks, the sponsor of that

title explained that its "purpose" was "to enhance the

enforcement powers of the Department of Justice and the federal

financial institution regulatory agencies with respect to

unlawful activities affecting federally insured financial

institutions." 136 Cong. Rec. E 3684 (daily ed., Nov. 2, 1990)

(remarks of Rep. Schumer).

We think that this history, coupled with the division

of opinion that originally existed in the courts on whether a

government entity could ever be a "victim" under the Act, makes

it highly probable that the newly emergent definition was

intended to accomplish two things. Broadly, the amendment was

meant to clarify that, in appropriate cases, a government entity,

say, FSLIC or FDIC, could be regarded as a "victim" under the

Act. More narrowly, the amendment was designed to clarify the

government's entitlement to restitution for losses suffered qua

16

insurer as a consequence of savings-and-loan fraud, that is to

say, as a passive sufferer of the harm caused by such fraud.

Although special definitions sometimes are taken wholly to

supplant common usage, see 2A Sutherland Statutory Construction

47.28 (5th ed. 1992), this special definition is not of that ilk;

it strengthens, rather than dissipates, the force of our point

anent common usage. In other words, notwithstanding the 1990

amendment, the presumption in favor of ordinary meaning continues

to apply in this case. And the ordinary meaning of the word

"victim" poses an obvious problem for the government's view of

the VWPA universe.

To sum up, nothing in the legislative history of either

the organic Act or its amendments indicates that losses incurred

in government sting operations should be subject to recoupment

under the VWPA. Conversely, there is some basis in the

legislative history of the VWPA for believing that the enacting

and amending Congresses both viewed the word "victim" in a more

restrictive manner than the government urges here. We do not

mean to suggest that the benefits of the VWPA should be confined

to widows and orphans; but we are constrained to note that, as

the status of victimhood is expanded beyond passive sufferers of

harm, we move further and further away from the concerns that

drove Congress to pass the statute.

C. The Rule of Lenity.

We recognize that the Act's language and legislative

history, though suggestive, do not speak unequivocally to the

17

question at hand. In light of this uncertainty, we have examined

more recondite sources. We confess, however, that our quest has

proven unrewarding; by and large, the government's claim resists

analogy. We have considered analogies from the doctrines and

case law of civil restitution, criminal restitution through

probationary conditions, tort law, and a variety of other

sources.7 None offer compelling guidance.

When all else fails to bring sufficient lucidity to the

meaning of a penal statute, the rule of lenity casts the decisive

vote. That rule, which mandates the resolution of ambiguities in

a criminal statute favorably to the defendant, see, e.g., United

States v. Bass, 404 U.S. 336, 347-49 (1971), is "a background

principle that properly comes into play when, at the end of a

thorough inquiry, the meaning of a criminal statute remains

obscure," O'Neil, 11 F.3d at 301 n.10; see also Chapman v.

United States, 111 S. Ct. 1919, 1926 (1991).

This is not only the proper time to invoke the rule of

lenity, but also the proper place; after all, the rule of lenity

played the decisive role on the one occasion that the Court

ventured to interpret the VWPA. See Hughey v. United States, 495

7The interested reader may wish to consult various works
that afford broad-gauged historical perspectives on the subject.
See, e.g., Stephen Schafer, Compensation and Restitution to

Victims of Crime (2d ed. 1970); Richard E. Laster, Criminal

Restitution: A Survey of its Past History and an Analysis of its

Present Usefulness, 5 U. Rich. L. Rev. 71 (1970).

18

U.S. 411 (1990).8 When "the statutory language regarding the

scope of a court's authority to order restitution [is]

ambiguous," the Court explained in that case, "longstanding

principles of lenity . . . preclude our resolution of the

ambiguity against petitioner . . . ." Id. at 422 (citations

omitted).

We retrace the Court's steps here. On the principle of

lenity, we resolve lingering doubts as to the statute's meaning

in favor of the defendant. We hold as follows: a government

agency that has lost money as a consequence of a crime that it

actively provoked in the course of carrying out an investigation

may not recoup that money through a restitution order imposed

under the VWPA.

We add an eschatocol of sorts. As courts reaching

similar conclusions have observed, see, e.g., Salcedo-Lopez, 907

F.2d at 99; Finley, 783 F. Supp. at 1129, other methods of

recovery remain open to the government, notably fines or

voluntary agreements for restitution incident to plea bargains.9

8While Hughey's precise holding, denying restitution for

losses resulting from offenses other than the offense of
conviction, has been superseded partially by the 1990 amendment
to 18 U.S.C. 3663(a)(3), this development does not throw the
slightest doubt on Hughey's hermeneutical approach. We,

therefore, regard Hughey as impeccable authority for the purpose

at hand.

9Courts are divided on whether drug buy money may be
recovered in restitution as a condition of supervised release.
Compare Daddato, 996 F.2d at 906 (interpreting 18 U.S.C. 3583

to permit restitution of drug buy money as a condition of
supervised release) with Gall, F.3d at [1994 U.S. App.

LEXIS at *14] (implicitly interpreting same statute as not
permitting a court to require restitution of drug buy money as a

19

Therefore, the main practical consequence of our holding, in the

long term, is that the awards to the government in "sting" cases

will be influenced not only by the amount of loss, but also by

other factors, see 18 U.S.C. 3572(a). Though in a given

situation the resulting penalty may be smaller or larger than the

foregone restitutionary award, the principle of interpretive

integrity will in all events be honored.

IV. CONCLUSION

We need go no further. We direct the district court to

modify the defendant's sentence by deleting the award of

restitution; and, with that modification, we affirm the judgment

below.

Affirmed as modified.

condition of supervised release); see also id. at *17-*20 (Jones,

J., concurring) (criticizing Daddato). We do not plumb these

depths, as the district court neither imposed a fine nor attached
a special monetary condition to the term of supervised release.

20