United States Court of Appeals
For the First Circuit
No. 02-9004
IN RE: JOSEPH BOVA AND JANET A. BOVA
Debtors.
JOSEPH BOVA,
Plaintiff, Appellant,
v.
ST. VINCENT DE PAUL CORP.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES BANKRUPTCY APPELLATE PANEL
FOR THE FIRST CIRCUIT
Before
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.
Grenville Clark, III for appellant.
Paul A. Rinden for appellee.
April 22, 2003
HOWARD, Circuit Judge. Joseph and Janet A. Bova appeal
a decision of the Bankruptcy Appellate Panel for the First Circuit
("BAP") holding that a New Hampshire state court judgment enforcing
Joseph Bova's outstanding criminal restitution obligation to the
St. Vincent De Paul Corporation was nondischargeable under Section
13 of the Bankruptcy Code. We agree that Bova's debt is not
dischargeable and, accordingly, affirm.
I.
The facts relevant to our analysis are largely
undisputed. The matter arises from Joseph Bova's embezzlement of
$104,000 from his former employer, St. Vincent De Paul, during the
1980s. The State of Illinois prosecuted Bova in Du Page County
Circuit Court, and, on May 17, 1993, Bova pleaded guilty to theft.
The sentencing court placed him on probation in lieu of prison and,
attendant to his sentence, ordered Bova to pay restitution to St.
Vincent De Paul in the amount of $104,000.
Upon completion of Bova's probation term in 1998, the
court entered judgment for the outstanding balance on his
restitution obligation of $69,451. Thereafter, Bova ceased making
restitution payments.
Confronted with Bova's delinquency, St. Vincent De Paul
brought suit against him in New Hampshire Superior Court ("the
superior court"), seeking to enforce the Illinois restitution
order. On May 17, 2000, the New Hampshire court allowed St.
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Vincent De Paul's motion for summary judgment on the ground that,
under Illinois law, St. Vincent De Paul could enforce the criminal
restitution order in a civil proceeding. The court awarded St.
Vincent De Paul $69,451, plus costs and interest, contingent upon
its producing an attested copy of the Illinois judgment.
On July 25, 2000, Bova and his wife filed a Chapter 7
bankruptcy petition in the United States Bankruptcy Court for the
District of New Hampshire. A short time later, St. Vincent De Paul
filed an adversary action in the bankruptcy proceeding, objecting
to the discharge of the superior court judgment. In due course,
the Bovas moved to convert their case to a Chapter 13 petition, and
St. Vincent De Paul amended its complaint to bring its allegation
of nondischargeability under the Bankruptcy Code provision
appropriate for a Chapter 13 petition, 11 U.S.C. § 1328(a)(3). The
statute excepts from discharge debts "for restitution, or a
criminal fine, included in a sentence on the debtor's conviction of
a crime." Id.
The bankruptcy court subsequently awarded St. Vincent De
Paul summary judgment, holding that the debt arising from the
restitution obligation was nondischargeable under 11 U.S.C. § 1328.
The Bovas appealed this judgment to the BAP, arguing that the
Illinois judgment had expired pursuant to an Illinois statute which
allegedly established a five-year statute of limitation on criminal
restitution orders. Alternatively, the Bovas contended that the
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Illinois judgment had, by operation of Illinois law, become civil
after five years, and St. Vincent De Paul was barred by judicial
estoppel from claiming nondischargeability under § 1328(a)(3),
which pertains to criminal judgments, after previously seeking to
enforce the Illinois judgment by means of a civil judgment it filed
in New Hampshire.
The BAP rejected the Bovas' arguments and held that the
New Hampshire state court judgment enforcing the outstanding
balance on the criminal restitution order was nondischargeable
under § 1328(a)(3). In reaching that conclusion, the BAP rejected
the argument that Illinois law contained a five-year statute of
limitations for criminal restitution judgments or transformed them
into civil judgments after five years. The BAP also rejected the
Bovas' judicial estoppel theory, finding no inconsistency in St.
Vincent De Paul's pursuit of a civil judgment to secure the unpaid
balance on an Illinois restitution order and its claim that the
order was nondischargeable. The Bovas then brought the present
appeal, in which they reiterate the arguments made below.
II.
We start with the Bovas' contention that, under Illinois
law, a criminal restitution judgment expires after five years. The
statute in question states that a sentencing court "shall fix a
period of time not in excess of 5 years within which payment of
restitution is to be paid in full." 730 Ill. Comp. Stat. 5/5-
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5/6(f) (emphasis added). The Bovas posit that this statute has the
effect of making Illinois restitution judgments effective as
criminal judgments for only five years.
We do not read the statute as setting forth an expiration
date for criminal restitution orders. Rather, it acts to ensure
that sentencing judges do not set unduly long schedules for
satisfying restitution obligations. The Illinois courts have
rejected the Bovas' reading of the statute, People v. Harris, 319
Ill. App.3d 534, 536 (2001), and so do we.
The Bovas' alternative argument is that, under Illinois
law, Illinois restitution judgments not paid within five years lose
their "criminal" characteristics and become enforceable solely as
civil judgments. The statute states that "[a] restitution order
under this Section is a judgment lien in favor of the victim that
. . . [e]xpires in the same manner as a judgment lien created in a
civil proceeding." 730 Ill. Comp. Stat. 5/5-5/6(m)(4). The Bovas
read this statute as causing restitution judgments to shed their
criminal characteristics after five years.1 Again, their
construction of the statute is not persuasive.
While an Illinois restitution judgment operates like a
"judgment lien created in a civil proceeding," 730 Ill. Comp. Stat.
5/5-5/6(m)(4), it does not lose its criminal character through the
1
The Bovas contend that once a criminal restitution order
"expires" under Illinois law, it remains enforceable as a civil
judgment.
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passage of time. Indeed, the fact that a restitution order
"expires in the same manner" as a civil judgment lien suggests that
it is not a civil judgment.2 The statute in question provides for
a civil enforcement mechanism designed to assist crime victims in
circumstances such as these.3
III.
Bova's restitution obligation to St. Vincent De Paul was
part of his criminal sentence. People v. Brooks, 158 Ill.2d 269,
265 (1994) (noting that "under our criminal statutes, restitution
is a sentence and a part of the sentencing scheme"). In the New
Hampshire Superior Court, St. Vincent De Paul neither pursued a new
cause of action nor attempted to litigate the facts underlying the
criminal judgment. Rather, it sought only extraterritorial
enforcement of an Illinois criminal judgment. Because we find that
St. Vincent De Paul sought only to enforce the Illinois restitution
2
There are important differences between a criminal
restitution judgment and a civil judgment. Restitution, for
example, is only ordered attendant to a determination of guilt.
Moreover, sentencing courts have the authority to modify criminal
restitution orders. See United States v. Timilty, 148 F.3d 1,4
(1st Cir. 1998) (distinguishing restitution orders from civil
judgments).
3
In other contexts, courts of appeals have held that a
statutory civil enforcement provision does not transform a criminal
restitution order into a civil judgment. E.g., Timilty, 148 F.3d at
4; United States v. Dubose, 146 F.3d 1141, 1148 (9th Cir. 1998)
(construing Mandatory Victim Restitution Act, 18 U.S.C. §
3663A(b)(1)(B)); United States v. Brown, 744 F.2d 905, 910 (2d.
Cir. 1984)(construing Victim Witness and Protection Act, 18 U.S.C.
§§ 3579, 3580).
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order in its New Hampshire action, we need say nothing further
about the Bovas' argument that judicial estoppel bars St. Vincent
De Paul from asserting that the order at issue is nondischargeable
in bankruptcy. The BAP therefore properly concluded that the New
Hampshire judgment is nondischargeable pursuant to 11 U.S.C. §
1328(a)(3).
Affirmed. Costs to appellee.
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