In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1597
United States of America,
Plaintiff-Appellee,
v.
Scott M. Peterson,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-CR-74-C--Barbara B. Crabb, Chief Judge.
Argued September 19, 2001--Decided October 9, 2001
Before Easterbrook, Diane P. Wood, and
Williams, Circuit Judges.
Easterbrook, Circuit Judge. As part of
his plea agreement in this bank-fraud
prosecution, Scott Peterson promised to
pay restitution for "all losses relating
to the offense of conviction and all
losses covered by the same course of
conduct or common scheme or plan as the
offense of conviction." (Emphasis added.)
Normally restitution is limited to loss
caused by the offense of conviction. See
18 U.S.C. sec.3663A(a); Hughey v. United
States, 495 U.S. 411 (1990); United
States v. Behrman, 235 F.3d 1049 (7th
Cir. 2000); United States v. Martin, 195
F.3d 961, 968 (7th Cir. 1999). But "[t]he
court shall also order, if agreed to by
the parties in a plea agreement,
restitution to persons other than the
victim of the offense." 18 U.S.C.
sec.3663A(a)(3). This clause in
Peterson’s plea agreement is designed to
exercise the option under subsection
(a)(3). In exchange for promising extra
restitution, Peterson received
concessions. The prosecutor dismissed
four of the six counts in the indictment,
and the district judge imposed a sentence
of only 14 months’ imprisonment, together
with an order requiring Peterson to pay
$53,491.87 to four lenders. Peterson did
not object.
In this court he sings a different tune,
contending that the district judge lacked
authority to order restitution other than
with respect to the two counts of
conviction. Peterson insists that the
plea agreement is not a valid implementa
tion of sec.3663A(a)(3). It is not clear
that he understands the principal
implication of this position: that his
plea must be set aside, the four
dismissed counts reinstated, and the
prosecution resumed in the district
court. He appears to believe that he can
have the benefits of the plea agreement
(four counts dismissed, reduced time in
prison) without the detriments. That’s
not an option. The whole plea agreement
stands, or the whole thing falls. See
United States v. Wenger, 58 F.3d 280 (7th
Cir. 1995). Peterson may find four more
convictions and extra time in prison a
steep price to pay--especially since
reinstating the extra four counts could
support the full award of restitution
without regard to any agreement under
sec.3663A(a)(3), and then Peterson would
not achieve even his immediate aim of
reducing the financial component of this
judgment. It is unnecessary to pursue
this, however, because there is no
problem with the restitution order.
Resolving the appeal in this fashion also
makes it unnecessary to decide whether
the failure to object in the district
court should be viewed as a waiver or
only as a forfeiture. Compare United
States v. Harris, 230 F.3d 1054 (7th Cir.
2000), and United States v. Richardson,
238 F.3d 837 (7th Cir. 2001), with United
States v. Williams, 258 F.3d 669 (7th
Cir. 2001).
The full text of the plea agreement’s
provision for restitution reads:
The defendant agrees to pay restitution
for all losses relating to the offense of
conviction and all losses covered by the
same course of conduct or common scheme
or plan as the offense of conviction. The
exact restitution figure will be agreed
upon by the parties prior to sentencing
or, if the parties are unable to agree
upon a specific figure, restitution will
be determined by the Court at sentencing.
Negotiations between the plea and the
sentencing did not yield agreement on a
specific figure. The district judge
therefore computed an amount, as the
agreement provided. Peterson does not
contend that the judge’s calculation was
mistaken; he argues only that the
district judge lacked authority to
specify any amount. He asks us to read
sec.3663A(a)(3) as applicable only when
the defendant himself specifies both the
additional victims and the precise amount
of restitution to be paid. It is not
possible to delegate power to the court,
Peterson insists.
Nothing in sec.3663A(a)(3) prescribes
how a defendant may exercise the option
to make restitution to persons other than
the victims of the crimes of conviction.
Peterson believes that this open-
endedness, combined with the Rule of
Lenity, equals a requirement that the
victims and amounts be written into the
plea agreement. This seems backward. Why
would the lack of detail in the statute
lead to the conclusion that only one
means of giving assent is lawful? It
makes more sense to infer from the lack
of detail in the statute that any means
acceptable to the defendant is proper. It
is the defendant’s choice, after all. A
defendant may volunteer details, or agree
with the prosecutor on a formula, or
delegate the power to the judge.
Defendants cannot be helped by rules
cutting off options they find useful
(including an option that this defendant
did find useful). If the final amount of
restitution must be specified in the plea
agreement, then it may prove impossible
for the parties to reach agreement (or
for the defendant to obtain concessions
in exchange for his promise). Plea agree
ments are negotiated well in advance of
the presentence report, and prosecutors
understandably would be reluctant to sign
off on a deal whose final dollar amounts
were set before the probation office
collected details that usually are
helpful in understanding the full scope
of the defendant’s wrongful conduct. Put
to a choice between final details in the
plea agreement, and no deal, the result
often would be no deal--to the detriment
of defendants and prosecutors alike.
Defendants are free to waive both
statutory and constitutional rights in
the course of criminal prosecutions. See,
e.g., Bousley v. United States, 523 U.S.
614 (1998); United States v. Mezzanatto,
513 U.S. 196 (1995); United States v.
Broce, 488 U.S. 563 (1989); Mabry v.
Johnson, 467 U.S. 504, 508 (1984). Even
if sec.3663A(a)(3) favored full details
in the plea agreement (which it does
not), a defendant could waive that
entitlement and choose a different
method. Peterson did just this: he agreed
to make restitution to all victims of his
entire course of conduct, and agreed
further that the district judge could
make decisions that proved necessary to
implement this choice. The district court
did no more than Peterson had agreed it
could. He has no basis for complaint.
Affirmed