United States v. Vaknin

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 96-1394

UNITED STATES OF AMERICA,

Appellee,

v.

MOSHE VAKNIN,

Defendant, Appellant.

No. 96-1393

UNITED STATES OF AMERICA,

Appellee,

v.

E. ERIC YEGHIAN,

Defendant, Appellant.

No. 96-1373

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL J. FONSECA,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Francis J. Boyle, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Mark J. Gillis, by appointment of the court, for appellant

Vaknin.
C. Leonard O'Brien for appellant Yeghian.

John A. MacFadyen for appellant Fonseca.

Ira Belkin, Assistant United States Attorney, with whom

Sheldon Whitehouse, United States Attorney, and Margaret E.

Curran, Assistant United States Attorney, were on brief, for the

United States.

May 6, 1997

SELYA, Circuit Judge. These consolidated appeals
SELYA, Circuit Judge.

raise, inter alia, an interesting question anent the standard of

causation that courts must apply in fashioning restitutionary

orders under the Victim and Witness Protection Act (VWPA), 18

U.S.C. 3663(a), 3664(a) (1994). The appeals arise out of a

multi-count indictment: each of the three appellants bribed the

same bank official in connection with the making of loans; some

of the loans soured; the bank failed; and the Federal Deposit and

Insurance Corporation (FDIC) was left holding an empty bag. When

the appellants pled guilty to criminal charges, the district

court imposed sentences which included orders of restitution to

cover what the court considered to be the attributable losses.

The appellants now challenge these impositions, and, in

addition, one appellant, citing his cooperation with the

prosecution, assails the district court's refusal to depart

downward from the guideline sentencing range (GSR). We affirm

the court's eschewal of a downward departure, uphold one

restitutionary order (albeit with a modest modification), vacate

the other two, and remand for further findings.

I. AN HISTORICAL PERSPECTIVE
I. AN HISTORICAL PERSPECTIVE

Compulsory restitution as a societal response to

criminal wrongdoing dates back over 4,000 years to the Code of

Hammurabi and the Old Testament. See, e.g., Exodus 22:1-3 ("If a

man shall steal . . . he should make full restitution."). In its

earliest iterations, the practice was designed to forfend against

the high social costs of blood feuds and the wreaking of personal

3

vengeance by compensating victims in a more civilized way. See

generally Thomas M. Kelly, Note, Where Offenders Pay for Their

Crimes: Victim Restitution and Its Constitutionality, 59 Notre

Dame L. Rev. 685, 686-88 (1984). By the Middle Ages, however,

the sovereign had begun to administer the criminal law directly,

and criminal restitution fell into desuetude. See id. The

device remained moribund for several centuries. In the United

States, for example, federal judges were not able to impose

criminal restitution as a condition of probation until 1925 when

Congress passed the Federal Probation Act, 18 U.S.C. 3651

(repealed 1984). Even then, judges used the power sparingly.

See Peggy M. Tobolowsky, Restitution in the Federal Criminal

Justice System, 77 Judicature 90, 90-91 (1993).

The tectonic plates shifted in 1982 when Congress

enacted the VWPA in response to a growing cognizance of victims'

rights. Notable for the speed of its election-year passage the

legislation was introduced in the Senate on April 22, 1982, and

signed into law by President Reagan less than six months later

the VWPA transmogrified criminal restitution from a sporadically

imposed condition of probation into the sentencing norm in cases

involving quantifiable economic loss.

The congressional purpose that animated the VWPA is no

secret: "the court in devising just sanctions for adjudicated

offenders, should insure that the wrongdoer make good[], to the

degree possible, the harm he has caused his victim." S. Rep. No.

532, at 31 (1982), reprinted in 1982 U.S.C.C.A.N. 2515, 2536. To

4

accomplish this purpose, a district court, when pronouncing

sentence, "may order, in addition to . . . any other penalty

authorized by law, that the defendant make restitution to any

victim of such offense." 18 U.S.C. 3663(a). In determining

whether to award restitution (and, if so, in what amount), the

sentencing court "shall consider the amount of the loss sustained

by any victim as a result of the offense, the financial resources

of the defendant, the financial needs and earning ability of the

defendant and the defendant's dependents, and such other factors

as the court deems appropriate." Id. at 3664(a).

In general, restitution under the VWPA is limited to

"the loss caused by the specific conduct that is the basis of the

offense of conviction." Hughey v. United States, 495 U.S. 411,

413 (1990).1 When the fact, cause, or amount of the loss is

1The defendant in Hughey had used credit cards in an

unauthorized manner, and the Court limited restitution to the
loss attributable to the lone count on which he had pled guilty
(as opposed to the total loss from all his fraudulent conduct).
Congress reacted by amending the VWPA in November of 1990, adding
3663(a)(2) [the former 3663(a) became 3663(a)(1), but its
substance remained essentially unchanged]. This amendment
provides that "a victim of an offense that involves as an element
a scheme, a conspiracy, or a pattern of criminal activity means
any person directly harmed by the defendant's criminal conduct in
the course of the scheme, conspiracy, or pattern." As we
explained in United States v. Hensley, 91 F.3d 274, 276-77 (1st

Cir. 1996), restitution for all criminal conduct done in the
course of a single scheme, conspiracy, or pattern of activity is
now appropriate, whether or not the defendant has been convicted
of (or even charged with) the specific acts, as long as the
offense of conviction has as an element the broader scheme,
conspiracy, or pattern.
There are two reasons why the 1990 amendment has no bearing
here. In the first place, the criminal conduct of which the
appellants stand convicted occurred prior to the date of the
amendment. Thus, the pre-1990 version of the VWPA governs our
inquiry. See United States v. Royal, 100 F.3d 1019, 1032 (1st

5

disputed, the government must establish it by a preponderance of

the evidence. See United States v. Baker, 25 F.3d 1452, 1454-55

(9th Cir. 1994); United States v. Diamond, 969 F.2d 961, 967

(10th Cir. 1992); see also 18 U.S.C. 3664(d).

II. THE FACTUAL PREDICATE
II. THE FACTUAL PREDICATE

We present the facts relevant to these appeals as best

they have presented themselves, mindful that the record is

noticeably underdeveloped.

Kenneth Annarummo was a bad apple. While working as a

loan officer for Attleboro-Pawtucket Savings Bank (APSB or the

Bank), he solicited and accepted bribes from numerous customers.

Annarummo's skulduggery came to light after the Bank failed and

the FDIC intervened. In due course, the government indicted

Annarummo and several complicit borrowers, including appellants

Moshe Vaknin, Michael J. Fonseca, and E. Eric Yeghian (all real

estate developers).2 We recount the circumstances of each

appellant's involvement.

A. Vaknin's Troubles.
A. Vaknin's Troubles.

Vaknin first approached APSB in 1987, seeking to

refinance several properties. Informed by Annarummo that his

request for funds would be facilitated if he greased the wheels,

Cir. 1996); United States v. Gilberg, 75 F.3d 15, 20-21 (1st Cir.

1996). In the second place, the offenses of conviction here do
not have as an element any broader scheme, conspiracy, or
pattern.

2Annarummo eventually pled guilty to three counts of bank
bribery, 18 U.S.C. 215 (1994), and one count of subscribing to
a false tax return, 26 U.S.C. 7206(1) (1994).

6

Vaknin paid Annarummo $17,500 and thereafter received the loan.

In 1988, Vaknin sought to borrow more money and Annarummo again

asked for a bribe in exchange for his assistance in getting the

loan underwritten. Vaknin paid him $12,500 prior to securing

loan approval. This sequence repeated itself later that same

year, when Vaknin slipped Annarummo another bribe and secured a

third loan (which was approved by the bank after a series of

machinations in which Annarummo presented false information to

the credit committee). Although Vaknin repaid the initial

refinancing in full, he defaulted on both the 1988 loans and the

Bank sustained losses in excess of $900,000.

When indicted, Vaknin pled guilty to a single count of

bank bribery. See 18 U.S.C. 215 (1994). The Presentence

Investigation Report (PSI Report) did not recommend restitution.

In response to the prosecution's objection, the probation officer

explained:

[I]t is not clear as to whether the
losses incurred by the bank were a direct
result of a fraudulent loan being negotiated
as a result of the bank bribery or whether
the losses were attributable to other
factors, such as a downturn in the economy
which affected the real estate market.

At the disposition hearing, Judge Boyle sentenced

Vaknin to an incarcerative term of twelve months and one day, two

years' supervised release, and a $50 special assessment. On the

restitution issue, the judge sided with the prosecution;

concluding that there would have been no funds advanced if the

bribes had not been paid, the judge held Vaknin liable for the

7

losses resulting from the defaulted loans, rejected the probation

officer's "downturn in the economy" hypothesis, and ordered

Vaknin to pay restitution to the FDIC in the sum of $1,000,000.

B. Fonseca's Troubles.
B. Fonseca's Troubles.

By the time Annarummo arrived on the scene, Fonseca was

a valued customer of the Bank, having roughly $750,000 in

outstanding loans. This debt had been incurred through normal

channels and without subterfuge, mostly in connection with

single-family residential properties in Rhode Island. Annarummo

made no immediate demands on Fonseca, and Fonseca succeeded in

securing additional financing through APSB.

In 1987, Fonseca encountered business difficulties and

became fearful that he would not be able to meet the repayment

schedule on an outstanding APSB note. When he voiced concern to

Annarummo, the banker demanded a bribe for his help in warding

off trouble should a default ensue. Fonseca paid Annarummo

$3,000 but proved able to meet his payment obligation on time and

in full.

In 1988, Fonseca applied for a $4,250,000 loan to cover

the development of a much larger project than he had ever tackled

a subdivision of more than 50 lots in Bristol, Rhode Island.

The record suggests (though it does not pin down) that, after

approval of the loan request but prior to its disbursement,

Annarummo demanded one of the lots as a bribe. Fonseca

acquiesced and transferred title to Annarummo's nominee, leaving

one less lot as security for APSB's loan.

8

The Bank terminated Annarummo's employment in March

1990. Fonseca's subdivision loan (which had a remaining

principal balance of $611,500) was then 30 days in arrears, and

Annarummo's successor recommended foreclosure. Fonseca

negotiated with APSB (which knew nothing of the bribes), and the

parties agreed to enter into a forbearance agreement (FA) under

which Fonseca would make a lump-sum payment of $450,000 in full

satisfaction of the outstanding indebtedness. Fonseca tendered

the funds within the agreed 35-day period. In time, the Bank

failed, the FDIC intervened, the bribes were discovered, and the

indictment materialized.

Fonseca pled guilty to a single count of bank bribery.

The district court sentenced him to serve twelve months and one

day in prison and a three-year term of supervised release. The

court also imposed a $5,000 fine and a $50 special assessment.

The matter of restitution proceeded much as in Vaknin's case.

The probation officer recommended against a restitutionary

impost; the prosecution objected; and the district judge

sustained the objection, ordering Fonseca to make restitution in

the sum of $161,500 (the difference between the loan balance and

the amount that Fonseca paid pursuant to the FA).

C. Yeghian's Troubles.
C. Yeghian's Troubles.

Yeghian, a newcomer to APSB, applied for a loan of

$2,930,000 in 1988 to fund the purchase of real property located

in Providence, Rhode Island. Annarummo demanded a bribe of

$20,000 (although the record is tenebrous as whether he

9

approached Yeghian before or after the loan had been approved).

In any event, Yeghian, using a corrupt lawyer as an internuncio,

paid the bribe out of the loan proceeds.

Later that same year, Yeghian sought a loan of

$1,400,000 to acquire and develop a parcel of real estate in

Seekonk, Massachusetts. Once again, Annarummo demanded a bribe

and received $22,909.52.3 Both loans turned sour. The Bank's

demise, the FDIC's entry onto the scene, the deterration of the

bribes, and the indictment followed.

Yeghian pled guilty to one count of bank bribery. At

sentencing, Judge Boyle imposed a ten-month prison sentence, a

three-year supervised release term, a $10,000 fine, and a $50

special assessment. Rejecting a recommendation contained in the

PSI Report, the judge ordered Yeghian to pay restitution in the

sum of $2,213,654.74.

III. THE DEPARTURE DECISION
III. THE DEPARTURE DECISION

Vaknin challenges the incarcerative portion of his

sentence. The salient facts are as follows. The court sentenced

Vaknin under the 1988 edition of the federal sentencing

guidelines. The court figured the GSR as 8-14 months (adjusted

offense level 11; criminal history category I), and this

calculation is not in dispute. At the time of sentencing, the

government asked the court to depart downward because Vaknin had

made a good faith effort to render substantial assistance. See

3The odd amount stems from the fact that the bribe took the
form of a payment by Yeghian to liquidate an outstanding loan
encumbering Annarummo's Porsche.

10

USSG 5K1.1 ("Upon motion of the government stating that the

defendant has made a good faith effort to provide substantial

assistance in the investigation or prosecution of another person

who has committed an offense, the court may depart from the

guidelines."). For his part, Vaknin solicited an even more

generous departure. Nevertheless, departure decisions are

entrusted primarily to the courts, and the sentencing judge's

role cannot be usurped by agreements between the prosecutor and

the defendant. See United States v. Mariano, 983 F.2d 1150, 1154

n.3, 1155-56 (1st Cir. 1993). Exercising this authority, the

court refused to impose a sentence below the GSR. Vaknin assigns

error.

Vaknin's claim of error is doubly flawed. The short,

entirely dispositive answer to it is that he stakes out his

position in a perfunctory manner. For that reason, the argument

is deemed waived. See, e.g., United States v. Tardiff, 969 F.2d

1283, 1287 (1st Cir. 1992); United States v. Zannino, 895 F.2d 1,

17 (1st Cir. 1990).

The slightly longer but equally dispositive answer is

that, in the main, departure decisions are discretionary, and

appellate review of refusals to depart is tightly circumscribed.

See Koon v. United States, 116 S. Ct. 2035, 2046-47 (1996); Bruce

M. Selya & Matthew Kipp, An Examination of Emerging Departure

Jurisprudence Under the Federal Sentencing Guidelines, 67 Notre

Dame L. Rev. 1, 13-14 (1991). Jurisdiction will only attach

"when it appears that the failure to depart stemmed from the

11

sentencing court's mistaken impression that it lacked the legal

authority to depart or, relatedly, from the court's

misapprehension of the rules governing departure." Mariano, 983

F.2d at 1153. No such bevue occurred here.

To be sure, Vaknin labors to find a cognizable error.

In this vein, he contends that the district court believed itself

unable to depart downward because Vaknin had not provided

information about his fellow borrowers' criminal activities but

only about the bribe-taker's criminal activities. He builds this

contention on scraps drawn from counsel's colloquy with the judge

at the disposition hearing. But an appellate court, seeking to

ascertain a sense of what transpired at sentencing, must look to

the whole of the record rather than isolated snippets extracted

from it. See, e.g., United States v. Santiago, 83 F.3d 20, 25

(1st Cir. 1996); United States v. Rostoff, 53 F.3d 398, 407 (1st

Cir. 1995); cf. United States v. Tavano, 12 F.3d 301, 304 (1st

Cir. 1993). Applying this tenet here, the record, read as a

seamless whole, belies Vaknin's contention.

We need not tarry. The sentencing transcript shows

with pristine clarity that Judge Boyle knew he could depart once

the government invoked USSG 5K1.1, but chose instead to impose a

sentence within the GSR. As we read the record, his reasons for

demurring were clear and entirely permissible. In his view,

Vaknin's cooperation had been adequately rewarded because (a) the

government had prosecuted only one count of bribery despite the

fact that Vaknin had paid multiple bribes referable to separate

12

borrowings, and (b) Vaknin's offense level (and, hence, the GSR)

already had been reduced for acceptance of responsibility under

USSG 3E1.1.

The transcript also reveals that the court weighed the

quintet of factors under which a substantial assistance motion

must be evaluated: the nature and extent of the assistance

provided; its significance and utility to the prosecution; its

timeliness; the truthfulness and reliability of the information

conveyed; and the injury to, or risk exposure of, the defendant

resulting from his cooperation. See Mariano, 983 F.2d at 1156

(enumerating factors and explaining that "[a] district court,

faced with a section 5K1.1 motion, must at a bare minimum

indicate its cognizance of these factors"). After mulling these

and other relevant considerations, the court determined that,

under the specific circumstances of Vaknin's case, no departure

was warranted. Such a decision is quintessentially a judgment

call, and, thus, within the sentencing court's discretion. See

Tardiff, 969 F.2d at 1290. Consequently, we lack both the

authority to second-guess the departure decision and the

inclination to do so.

IV. THE CAUSATION QUANDARY
IV. THE CAUSATION QUANDARY

All three appellants challenge the district court's

restitutionary orders. Those challenges are similar insofar as

they implicate the standard of causation. Therefore, we treat

them in the ensemble to that extent.

A. Standard of Review.
A. Standard of Review.

13

Restitution orders customarily are reviewed under an

abuse of discretion rubric. See United States v. Hensley, 91

F.3d 274, 277 (1st Cir. 1996). In the course of this review, the

sentencing court's subsidiary factual findings must be credited

unless they are clearly erroneous. See id. To the extent that a

challenge to a restitution order hinges on a legal question,

however, the sentencing court's answer to that question is

reviewed de novo. See United States v. Gilberg, 75 F.3d 15, 20

(1st Cir. 1996); United States v. Savoie, 985 F.2d 612, 619 (1st

Cir. 1993). The appellants' allegation that the district judge

employed an improper legal standard of causation presents such a

question.

B. The Legal Landscape.
B. The Legal Landscape.

The level of causation required under the VWPA is not

immediately apparent, and the parties' views on the subject are

sharply divergent. The appellants advance a theory of "direct"

causation, exhorting us to rule that restitution can be imposed

only if the victim's losses result directly from the offense of

conviction and therefore that restitution cannot be imposed when

an intervening phenomenon (e.g., a collapsing real estate market)

is the more immediate cause of the loss.4 Transposed into the

m tier of this case, the appellants' theory seemingly would

require the government to eliminate the possibility of concurrent

4While the appellants profess to know direct causation when
they see it, they have been unable either to muster a
comprehensive definition of the term or to suggest a viable
limiting principle. The government's arguments in support of but
for causation, see infra, suffer from much the same vice.

14

causes and prove that the FDIC's losses occurred as a direct

result of the bribes that Annarummo solicited and received. The

government cannot do so, the appellants posit, because stimuli

unrelated to the bribes, such as intervening market forces,

caused the ultimate losses.

The government's counter-argument is that "but for"

causation suffices; it urges us to rule that restitution can be

imposed as long as the victim's losses would not have eventuated

but for the criminal activity. But for the bribes, this thesis

runs, there would have been no loans, without which there would

have been no losses. In this very general sense, the bribes

caused the losses and that, to the government's way of

thinking, is enough.

The appellants' rejoinder is twofold. First, they

debunk the legal standard articulated by the government. Second,

they say that even if this articulation accurately reflects the

state of the law, it does not justify the district court's

restitutionary orders. On the appellants' shared hypothesis, the

loans would have issued whether or not the bribes were

forthcoming; thus, the Bank would have incurred the losses even

if the appellants had played it straight.

The parties' positions stand at opposite ends of a

continuum. Our effort to determine where on the continuum the

correct legal standard is housed starts with the language of the

VWPA itself. Section 3663(a) authorizes restitution to "any

victim" for a covered offense. This provision must be read in

15

tandem with section 3664(a), which directs the sentencing court

to consider "the amount of the loss sustained by any victim as a

result of the offense." For purposes of this case, see supra

note 1, restitution is appropriate only for "the loss caused by

the specific conduct that is the basis of the offense of

conviction." Hughey, 495 U.S. at 413.

Since the text of the VWPA does not speak explicitly to

the dimensions of the requisite standard of causation,5 we must

consult other sources in our quest to discover it. Next on the

list is legislative history. This material, like the statute

itself, does not specifically limn the standard of causation.

Nonetheless, it offers some important insights.

In enacting the VWPA, Congress strove to encourage

greater use of a restitutionary remedy. See S. Rep. No. 532,

supra, 1982 U.S.C.C.A.N. at 2536-37. At the same time, it

5Though the amended version of the VWPA does not apply to
this case, see supra note 1, the appellants asseverate that the

amendment's use of the adverb "directly" heralds Congress' intent
vis- -vis the type of causation that it envisioned. We do not
agree. The legislative history of the 1990 amendment plainly
indicates that the language employed, albeit containing the word
"directly," does not support the appellants' theory of causation.
As Congress explained:

The use of "directly" precludes, for example,
an argument that a person has been harmed by
a financial institution offense that results
in a payment from the insurance fund because,
as a taxpayer, a part of a person's taxes go
to the insurance fund.

H.R. Rep. No. 681(I), at 177 n.8 (1990), reprinted in 1990

U.S.C.C.A.N. 6472, 6583 n.8. This definition ranges far afield
from the definition of direct that the appellants tout. Thus, we
conclude that the 1990 amendment did not alter the standard of
causation applicable to VWPA cases.

16

disclaimed any intent to convert the main event the sentencing

hearing into a time-consuming sideshow prolonged litigation

over restitution-related issues. This disclaimer was made

manifest in a variety of ways. For example, rather than

requiring great precision in fixing the amount of restitution

due, Congress visualized the VWPA as "authoriz[ing] the court to

reach an expeditious, reasonable determination of appropriate

restitution by resolving uncertainties with a view towards

achieving fairness to the victim." Id. at 2537.

In short, the legislative history clearly signals a

congressional preference for rough remedial justice, emphasizing

victims' rights. In our view, this preference counsels against

importing a stringent standard of causation (such as might be

appropriate in a tort context) into the VWPA.

Of course, rough remedial justice does not mean leaving

matters to the whim of the sentencing judge, and Congress did not

conceive of restitution as being an entirely standardless

proposition. The government must bear the burden of establishing

the loss, 18 U.S.C. 3664(d), and an award cannot be woven

solely from the gossamer strands of speculation and surmise. See

United States v. Neal, 36 F.3d 1190, 1200-01 (1st Cir. 1994). By

like token, just as insisting upon a modicum of reliable evidence

reinforces the specific advantages of the restitutionary remedy,

so too does insisting upon a certain degree of causal precision.

As the Supreme Court has noted, demanding a "direct relation

between the harm and the punishment gives restitution a more

17

precise deterrent effect than a traditional fine." Kelly v.

Robinson, 479 U.S. 36, 49 n.10 (1986).

Finding the legislative history suggestive rather than

compelling, we examine the caselaw. In previous decisions, this

court has remarked the broad policy goals of the VWPA and

concluded that difficulty in achieving an exact measurement of

victim loss should not preclude the imposition of restitution.

See Savoie, 985 F.2d at 617. On the subject of causation,

however, our decisions have tended to involve either situations

in which the closeness of the causal link could not seriously be

questioned, see, e.g., United States v. Lilly, 80 F.3d 24, 28

(1st Cir. 1996), or those in which we found restitution to have

been ordered in contravention of Hughey, see, e.g., United States

v. Newman, 49 F.3d 1, 11 (1st Cir. 1995). Neither polar extreme

brings much light to the vexing issue which these appeals

present.

Neal is the only notable exception to this taxonomy.

That case featured a defendant who had been found guilty both of

being an accessory after the fact to a bank robbery and of

laundering funds. The district court imposed a restitutionary

award that equalled the bank's entire loss from the thievery. We

vacated the award, noting that it could not be determined on the

sparse record available "whether the court calculated, pursuant

to Hughey, the portion of [the bank's] losses that were actually

caused by the specific criminal conduct forming the basis for

Neal's convictions." 36 F.3d at 1200 (italics omitted). We

18

instructed the district court, on remand, to hold a hearing on

the causation issue and modify the award to the extent that any

portion of the loss was not "attributable to" Neal's criminal

conduct. Id. at 1201. In dictum, we cautiously suggested that

some varietal of but for causation might suffice. See id. at

1201 n.10 ("If . . . evidence is presented indicating that Neal

played a significant role in helping the other defendants escape

and that but for his actions, there was a substantial likelihood

that the full proceeds would have been recovered, the court could

well be within its statutory authority in imposing the full

[restitutionary amount]."). Thus, circuit precedent furnishes a

weak indication that but for causation can suffice under the

VWPA.

Reading the out-of-circuit cases is like attending a

bar association meeting in a small town; one can find congenial

cases, like friendly faces in the crowd, to support almost any

standard of causation for the VWPA. We have found decisions

which appear at least superficially to reject but for causation

in favor of a "direct result" standard. See, e.g., United States

v. Silkowski, 32 F.3d 682, 689-90 (2d Cir. 1994); Ratliff v.

United States, 999 F.2d 1023, 1026-27 (6th Cir. 1993). By

contrast, we have found decisions which seem to accept

unqualified but for causation as sufficient under the VWPA. See,

e.g., United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.

1985); United States v. Richard, 738 F.2d 1120, 1122-23 (10th

Cir. 1984). We have found decisions which straddle the question,

19

see Government of the Virgin Islands v. Davis, 43 F.3d 41, 46 (3d

Cir. 1994) (seemingly endorsing, in a single paragraph, both but

for and direct causation), and those which confess confusion on

the issue, see United States v. Cloud, 872 F.2d 846, 856 n.13

(9th Cir. 1989) (acknowledging "a conflict in this circuit

regarding the nexus the government must establish between the

defendant's criminal conduct and the victim's losses to support a

VWPA restitution order").

C. Choosing a Standard.
C. Choosing a Standard.

Upon close perscrutation, the extreme positions

advocated by the parties do not hold out much promise in our

quest for a serviceable standard of causation.

On the one hand, the sort of direct causation standard

that the appellants propose is simply too rigid. Under their

theory of intervening forces, a court could not impose

restitution even if the defendant's conduct were a substantial

cause of a loss, unless it were the last cause. Such a standard

would flout the basic purpose of the VWPA.6 In our judgment,

Congress did not contemplate such adamantine formalism when it

moved to expand the availability of restitutionary remedies by

6Imagine a situation in which D, a convicted felon who is
carrying a handgun, is speeding down a highway, fleeing from the
authorities. D's car slams into an unregistered automobile, with
defective brakes, owned and operated by Stranger (S), causing S
to swerve and hit V, who suffers severe injuries. D is then
prosecuted for reckless endangerment and found guilty. S's
miscreancy should not preclude a court from ordering D to make
restitution for V's medical expenses. Yet the appellants' theory
would erect just such a barrier.

20

enacting the VWPA. See S. Rep. No. 532, supra, 1982 U.S.C.C.A.N.

at 2537.

On the other hand, concerns of fairness require us to

reject the unbridled but for causation standard that the

government propounds. Under it, a court could impose restitution

based on the most tenuous of connections.7 While it is true that

for want of a nail the kingdom reputedly was lost, cf. Benjamin

Franklin, Poor Richard's Almanac (1758), it could hardly have

been Congress' intent to place the entire burden on the

blacksmith if the nail was an insignificant factor in the

calculus of concurrent causes. Such a result would countervail

principles of fundamental fairness and, in the bargain, would be

at odds with the majority of reported cases. See, e.g., United

States v. Holley, 23 F.3d 902, 914-15 (5th Cir. 1994); United

States v. Tyler, 767 F.2d 1350, 1351-53 (9th Cir. 1985).

Having rejected the parties' proposals, it falls to us

to fashion the appropriate legal standard. Despite the gaps in

the statute and in its legislative history, and notwithstanding

the contradictions that permeate the cases, we think it is

possible to distill certain bedrock principles from the sources

7Imagine a situation similar to that described in note 6,
supra; but, instead of being prosecuted for a vehicular offense,

D is charged with and convicted of being a felon in possession of
a handgun. While but for causation may be present after all,
but for his unlawful possession of a weapon, D would have had no
occasion to flee from the authorities, and, thus, would not have
been careening down the road and would not have precipitated the
accident it is hard to make a principled argument that the
offense of conviction (felon in possession) supports an order
against D to make restitution for V's medical expenses. Yet the
government's theory ordains just such a result.

21

that we have consulted.

First: Restitution should not be ordered in respect to
First:

a loss which would have occurred regardless of the defendant's

conduct. A good illustration of this principle in operation is

found in United States v. Blackburn, 9 F.3d 353 (5th Cir. 1993).

There, the sentencing court included foreclosure expenses in

calculating the amount of restitution due. The Fifth Circuit

reversed, citing proof that the foreclosure would have happened

even if the defendant had not committed the crime. See id. at

359; see also United States v. Walker, 896 F.2d 295, 305-06 (8th

Cir. 1990) (holding that when defendants, who owned a company,

defrauded the United States, restitution to laid-off company

employees was improper because the record failed to show that the

fraud caused the company to cease operations).

Second: Even if but for causation is acceptable in
Second

theory, limitless but for causation is not. Restitution should

not lie if the conduct underlying the offense of conviction is

too far removed, either factually or temporally, from the loss.

We offer two examples of remoteness in fact. The first arises in

a case that bears some similarity to the instant case.

In Diamond, 969 F.2d at 963-64, the defendant pled

guilty to filing false financial reports with a lender. The loan

had already been made before Diamond authored the reports, but

the reports apparently helped in obtaining an extension. The

loan proved uncollectible. The sentencing court ordered the

defendant to make restitution, reasoning that the loss stemmed

22

from the false reports. The court of appeals refused to equate

the extension of an existing loan with the granting of the loan

in the first place, and negated the restitutionary order because

there was no proof that the extension worsened the lender's

position. See id. at 966.

A somewhat different example of factual remoteness is

found in United States v. Sablan, 92 F.3d 865 (9th Cir. 1996).

There, the defendant had been convicted of computer fraud. The

district court ordered restitution for expenses incurred by the

victim in meeting with investigators to discuss the case. The

Ninth Circuit struck these amounts from the award, ruling that

the expenses were not connected closely enough to the fraudulent

conduct. See id. at 870; see also United States v. Kenney, 789

F.2d 783, 784 (9th Cir. 1986) (invalidating that portion of a

restitution order which was designed to reimburse the corporate

victim for the cost of having its employees testify at the

defendant's trial, but upholding that part of the order

encompassing the cost of removing film chronicling the robbery

from the bank's surveillance cameras).

Typical of the situations in which but for causation

existed but restitution was denied because the claimed losses

were temporally remote is Holley, in which the court deemed

restitution improper when the victim, who received foreclosure

property from the defendant in the course of the criminal

activity, unnecessarily held onto the property for a lengthy

interval after the crime was discovered, and the property

23

declined in value during that period. 23 F.3d at 914-15.

Similarly, in Tyler, the defendant cut down a tree in a national

forest and was apprehended as he tried to take it to a nearby

lumber mill. 767 F.2d at 1351. The government retained the

lumber, needlessly, for a long period of time, then sold it in a

fallen market for considerably less than it would have fetched if

sold promptly. See id. The district court ordered restitution,

pegging the loss by reference to the reduced price. The

appellate court disagreed, pointing out that, although abstract

but for causation existed, it was too attenuated to support the

award. See id. at 1351-53.

Consistent with these two principles and with our

dictum in Neal, 36 F.3d at 1201 & n.10, we hold that a modified

but for standard of causation is appropriate for restitution

under the VWPA. This means, in effect, that the government must

show not only that a particular loss would not have occurred but

for the conduct underlying the offense of conviction, but also

that the causal nexus between the conduct and the loss is not too

attenuated (either factually or temporally). The watchword is

reasonableness. A sentencing court should undertake an

individualized inquiry; what constitutes sufficient causation can

only be determined case by case, in a fact-specific probe.

D. Applying the Standard.
D. Applying the Standard.

Having elucidated the appropriate legal standard, we

turn finally to the causation questions embedded in the appeals

that are before us. These appeals, like the decisions canvassed

24

above, provide some insights into the standard's operation.

1. In Vaknin's case, restitution is appropriate. The
1.

district court specifically found that the bribes which Vaknin

paid were a but for cause of the Bank's losses on the defaulted

loans. The record contains no basis on which to mount a credible

challenge to this finding. After all, the arrangements for the

bribes preceded the making of the loans, and the bribes were

admittedly paid in exchange for Annarummo's assistance in

procuring the loans.

Moreover, common sense must inform inquiries into

restitution under the VWPA. See S. Rep. No. 532, supra, 1982

U.S.C.C.A.N. at 2536-37. In Vaknin's case, the evidence clearly

shows not only that the loans were procured by bribery but also

that the bribe-taker connived to bend the rules; in at least one

instance Annarummo shaded the presentation to APSB's credit

committee to increase the likelihood that the loan would be

forthcoming. We believe that where, as here, the government

establishes that arrangements for a bribe precede and relate to

the making of a loan, a commonsense inference arises that

subsequent losses referable to the loan's uncollectibility are

causally linked in reasonable proximity to the bribe. Cf., e.g.,

Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1158-59 (1st Cir.

1996) (discussing commonsense inference that arises from proof

that a relevant document has been destroyed); United States v.

Olbres, 61 F.3d 967, 971-72 (1st Cir.) (discussing commonsense

inference that arises in tax evasion case from proof of

25

expenditures in excess of declared income and disposable assets),

cert. denied, 116 S. Ct. 522 (1995). Of course, the inference

can be rebutted if the defendant produces specific evidence of

factual or temporal remoteness. Here, however, Vaknin made no

such showing. To the contrary, there is no compelling proof

either of an unforeseeable intervening cause or of any cognizable

remoteness, factual or temporal.

That ends the matter. Because the record adequately

supports Judge Boyle's finding of but for causation, and contains

no sufficient suggestion of factual or temporal remoteness,

restitution for the losses resulting from the tainted loans is

altogether appropriate.

2. We treat Fonseca's and Yeghian's appeals in tandem.
2.

In both instances, the record is so exiguous that the very

existence of but for causation seems problematic. As to Fonseca,

the single loan in respect to which the court ordered restitution

may have been approved by the Bank independent of, and prior in

time to, Annarummo's solicitation of a bribe.8 On the present

record, we simply cannot tell and the lower court made no

specific finding on the point. The question is potentially

important because, if it turns out that the Bank approved the

loan prior to any arrangements for a bribe, then in such event

the circumstances would not support an inference of but for

causation; and, in the absence of such an inference, it is

8Fonseca's past lending relationship with the Bank tends to
support this inference. It suggests, at the least, that the Bank
considered him creditworthy well before Annarummo hove into view.

26

difficult (although not impossible) to conceive how a sufficient

causal link between bribe and loss could be forged.

Moreover, the record suggests that even if but for

causation exists, the requisite connectedness might be lacking.

Fonseca argues with some force that the Bank's loss, if one

occurred at all, was occasioned by its need for an immediate cash

infusion; that this exigency gave birth to the FA; and therefore,

no cognizable loss occurred.9 But this argument, too, depends on

facts which the record does not contain, and on which the lower

court made no particularized findings. It is clear that

Fonseca's loan was overdue and that the Bank had a right to call

the loan. From that point forward, it is unclear whether the

Bank entered into the FA merely as a quick fix for its own

problems or because it wanted to mitigate an inevitable loss.

As to Yeghian, the record is similarly inexplicit about

the timing of his arrangements with Annarummo vis- -vis the

Bank's approval of the subject loans. There is some indication

that one (if not both) of the loans on which he defaulted may

have been approved independent of any deal with Annarummo, but

the sentencing court made no detailed findings and the extant

record is too sparse to permit us to answer the causation

questions with confidence.

9In substance, Fonseca asserts that by accepting an
accelerated $450,000 payment under a consensual pact (the FA) in
satisfaction of the outstanding loan balance ($611,500), APSB did
no more than make a business judgment designed not to salvage a
failing loan Fonseca says he could have paid it off in full,
given time but to shore up a failing bank. On that basis, he
reasons that APSB (and ultimately the FDIC) suffered no loss.

27

It would be unprofitable to delve more deeply into

these matters. We are confronted by a largely undeveloped

record, embellished with few specific findings. Given that

enigmatic reality, remand is required. We envision that the

district court, the next time around, will direct the parties to

augment the record with respect to (a) the presence or absence of

a causal link between Fonseca's and Yeghian's criminal conduct

and the FDIC's losses, (b) if that causal link is demonstrated,

the closeness of the connection, factually and temporally,

between that conduct and the ultimate losses, and (c) such other

matters as the court may deem suitable. We anticipate further

that the court will make particularized findings on each disputed

issue. Weintimateno viewastothe properoutcomeof thoseproceedings.

V. MISCELLANEOUS
V. MISCELLANEOUS

Three final matters require brief attention. The first

is a matter raised by Fonseca and Yeghian. The others relate

solely to Vaknin's obligations.

A. Picking up the Tab.
A. Picking up the Tab.

It is apodictic that restitution only can be ordered to

redress a loss to a victim. See United States v. Gibbens, 25

F.3d 28, 33 (1st Cir. 1994). Using this truism as a lever,

Fonseca and Yeghian question whether the VWPA allows the court to

order restitution to the FDIC for losses originally sustained by

the (now failed) Bank. The question is easily answered.

Following existing circuit precedent, we hold that the

benefit of the VWPA's remedial provisions extends to a government

28

agency which, in the exercise of duly delegated powers, steps

into the shoes of the original victim. See id. at 32-35. Thus,

if a failed bank was a victim of the defendant's criminal

activity, the FDIC, as its insurer and receiver, itself qualifies

as a victim for purposes of a restitutionary order under the

VWPA. See United States v. Phaneuf, 91 F.3d 255, 265 (1st Cir.

1996).

B. Ability to Pay.
B. Ability to Pay.

Vaknin argues that the district court abused its

discretion by ordering him to make restitution without

considering his ability to pay. We agree with Vaknin's premise

that judicial consideration of a defendant's ability to pay is

statutorily mandated as a prerequisite to an order for

restitution. See 18 U.S.C. 3664(a). We disagree, however,

with his conclusion that the lower court neglected to touch this

base.

We have stated with a regularity bordering on the

monotonous that the consideration requirement does not mean that

a judge must decide the question in a particular way or even that

he must make express findings on the record as to the defendant's

ability to pay. See, e.g., Newman, 49 F.3d at 10; Savoie, 985

F.2d at 618. It is enough if "the record on appeal reveals that

the judge made implicit findings or otherwise adequately evinced

his consideration" of this factor. Savoie, 985 F.2d at 618.

Here, the PSI Report spelled out Vaknin's past earnings

history and current financial condition in appreciable detail.

29

The sentencing transcript indicates that the judge absorbed this

information, voiced his skepticism about Vaknin's ability to

comply with the restitution order as matters stood,10 but

nonetheless impliedly found that a sufficient possibility of

eventual repayment existed. We think that this finding is

supportable. A defendant's impoverishment today is no assurance

of future poverty, and, hence, present impecuniousness is not a

bar to the imposition of restitution. See United States v.

Brandon, 17 F.3d 409, 461 (1st Cir. 1994); United States v.

Lombardi, 5 F.3d 568, 573 (1st Cir. 1993). A sentencing court

permissibly may take into account a defendant's earning capacity

and the prospect that his fortunes will improve. See Lombardi, 5

F.3d at 573; Savoie, 985 F.2d at 619.

Here, the judge apparently issued a restitution order

as a hedge against his founded belief that the defendant an

individual of demonstrated entrepreneurial bent might well

acquire assets in the future. While this conclusion would have

been less controversial had the judge made a more pointed

reference to Vaknin's past accomplishments and future financial

prognosis, we cannot say that an abuse of discretion transpired.

See Lombardi, 5 F.3d at 572-73.

C. The Government's Concessions.
C. The Government's Concessions.

The district court ordered Vaknin to make restitution

in the amount of $1,000,000. This figure is vulnerable on two

10Indeed, the judge explicitly declined to levy a fine
against Vaknin, noting on the judgment form that no fine would be
imposed due to an inability to pay.

30

fronts. First, the government has brought to light on its own

initiative a mathematical error that, when corrected, will reduce

the amount of restitution owed.11 Second, the sentencing court

premised the loss calculation on the amount which the Bank

received when it resold the property Vaknin had pledged to secure

the defaulted loans, rather than on its fair market value at the

time of foreclosure. Because the district court used fair market

value as of the foreclosure date when determining the amount of

restitution that Yeghian owed, the government concedes that it

would be fair to employ the same barometer in respect to Vaknin

(a similarly situated codefendant). We accept the government's

concessions at face value, without passing substantively upon

them, and direct the district court to make these two adjustments

to the restitutionary award. The resultant obligation thus will

be reduced to $902,000.

VI. CONCLUSION
VI. CONCLUSION

We need go no further. For the reasons set forth

herein, we affirm the convictions of all the defendants; modify

the restitution order imposed against Vaknin, and, as modified,

affirm it; vacate the restitution orders imposed on Fonseca and

Yeghian, respectively; and remand for further proceedings as to

them.

Affirmed in part; vacated in part; remanded.
Affirmed in part; vacated in part; remanded.

11This is very professional behavior, and we commend the
prosecutors for it.

31