United States Court of Appeals
Fifth Circuit
F I L E D
March 10, 2004
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 03-30219
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY LEROY ADAMS, also known as AJ,
Defendant-Appellant.
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Appeals from the United States District Court
For the Western District of Louisiana
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Before GARWOOD, JOLLY, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
This appeal, challenging an order of restitution under the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A (2000), requires us to define the scope of the fraudulent scheme
underlying a defendant’s fraud conviction. We hold that when a defendant pleads guilty to fraud, the
scope of the requisite scheme to defraud, for restitution purposes, is defined by the mutual
understanding of the parties rather than the strict letter of the charging document. Because the
defendant’s conviction was derived from a guilty plea, and because the restitution exceeded the scope
of the fraudulent scheme as mutually understood by the parties, we VACATE the restitution order
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of the district court, and REMAND for resentencing in accordance with this opinion.
I. FACTS AND PROCEEDINGS
Johnny LeRoy Adams (“Adams”) and fifteen co-defendants were charged in a fifteen-count
indictment with conspiracy to commit mail fraud, wire fraud, and interstate carrier fraud. 18 U.S.C.
§§ 371, 1341, 1343 (2000). Count 1 describes the conspiracy, outlining the defendants’ broad
scheme to stage fourteen car accidents and file false insurance claims between June 1999 and March
2002; Counts 2 through 15 list the separate and overt acts performed in furtherance of the conspiracy.
Each substantive count incorporates the broad conspiracy outlined in Count 1 as the requisite scheme
to defraud. Of the fourteen substantive counts, Adams was named as a defendant in eleven.
Adams and the Government entered plea negotiations as to Counts 4 and 15. The
Government’s proposed factual basis states that Adams conspired to file two false insurance claims
in connection with the two staged car accidents described in Counts 4 and 15. The factual basis,
however, does not incorporate the broad conspiracy alleged in Count 1 of the indictment.
At his plea hearing, Adams refused to agree to the proposed factual basis on the grounds that
the two accidents were not staged. Adams nonetheless acknowledged that he and his co-defendants
conspired after the two accidents to aggravate the damage to the cars, and to misrepresent the facts
surrounding the accidents, for the purpose of defrauding insurance companies. The Government and
the district court found that Adams’s version of the fraudulent scheme was sufficient to support his
fraud conviction under 18 U.S.C. § 1341. The factual basis was revised accordingly, and Adams
entered a plea of guilty.
The Presentence Investigation Report (“PSR”) recommended that Adams pay restitution for
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$213,000 on the grounds that he participated in the broad fraudulent scheme outlined in Count 1.
Adams, however, objected that the restitution order should not exceed $34,833 – the amount of harm
caused by the narrow fraudulent scheme outlined in the factual basis. The district court overruled
Adams’s objection, disregarded the PSR recommendation, and ordered restitution for $170,312.31,
reflecting the loss resulting from the twelve counts which named Adams as a defendant. Adams
timely appeals, asserting that the rest itution order exceeds the district court’s authority under the
MVRA, 18 U.S.C. § 3663A.
II. STANDARD OF REVIEW
“Restitution under the MVRA is a criminal penalty and a component of the defendant’s
sentence.” United States v. Chaney, 964 F.2d 437, 451 (5th Cir. 1992). When the legality of a
restitution order is questioned, we review that award de novo. United States v. Cothran, 302 F.3d
279, 288 (5th Cir. 2002). “Once we have determined that an award of restitution is permitted by the
appropriate law, we review the propriety of a particular award for an abuse of discretion.” United
States v. Hughey, 147 F.3d 423, 436 (5th Cir. 1998). We therefore review de novo whether the
restitution order is permissible under the MVRA.
III. DISCUSSION
The MVRA authorizes a district court to order restitution to victims of certain offenses,
including mail fraud. 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(ii). It defines “victim” as “a person directly
and proximately harmed as a result of the commission of an offense for which restitution may be
ordered including, in the case of an offense that involves as an element a scheme . . . , any person
directly harmed by the defendant’s criminal conduct in the course of the scheme.” 18 U.S.C. §
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3663A(a)(2). A defendant sentenced under the MVRA is only responsible to pay restitution for the
conduct underlying the offense for which he has been convicted. United States v. Mancillas, 172
F.3d 341, 343 (5th Cir. 1999) (stating that the purpose of the MVRA is to “restrict[ ] the award of
restitution to the limits of the offense”). “[W]here a fraudulent scheme is an element of the
conviction, the court may award restitution for ‘actions pursuant to that scheme.’” Cothran, 302
F.3d at 289 (quoting United States v. Stouffer, 986 F.2d 916, 928 (5th Cir. 1993)). Our review of
the restitution order therefore compels us to define the scope of the scheme underlying Adams’s fraud
conviction.
A. Defining the Scope of a Scheme to Defraud
The Government contends that the scope of Adams’s scheme to defraud is defined by the
strict letter of the indictment. It points out that the two counts of convi ction, Counts 4 and 15,
expressly incorporate the broad scheme alleged in Count 1. It is well established that, when a
defendant is convicted of fraud by a jury verdict, the underlying scheme to defraud is defined, in large
part, by the actions alleged in the charging document. See United States v. Hughey, 147 F.3d 423,
438 (5th Cir. 1998) (holding that the scheme to defraud supporting a jury’s fraud conviction is limited
to the temporal scope of the counts of conviction); United States v. Pepper, 51 F.3d 469, 473 (5th
Cir. 1995) (restricting the scope of the scheme to defraud after a jury verdict to the dates and
methods outlined in the counts of conviction); Stouffer, 986 F.2d at 928-29 (holding that restitution
following a guilty verdict should reflect the temporal scope described in the count of conviction).
When a defendant is convicted of fraud pursuant to a plea agreement, however, this Court
looks beyond the charging document, and defines the underlying scheme by referring to the mutual
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understanding of the parties. See United States v. Cothran, 302 F.3d 279, 289-90 (5th Cir. 2002);
United States v. Arnold, 947 F.2d 1236, 1238 (5th Cir. 1991). In Arnold, the defendant’s count of
conviction charged that he caused $23,000 to be wire-transferred as part of a fraudulent scheme. Id.
at 1237. The district court nonetheless ordered Arnold to pay $669,390 in restitution for his
involvement in a conspiracy not alleged in the count of conviction. Id. This Court affirmed on the
grounds that the “context” of Arnold’s guilty plea evinced the parties’ mutual understanding that the
defendant’s scheme was broader than that alleged in the charging document. Id. at 1238 (determining
the context of the plea from the language of the plea agreement and the parties’ statements during
the plea and sentencing hearings).
In Cothran, we similarly looked beyond the charging document to define the scope of a
fraudulent scheme, observing that “[t]he bill of information is not our only source of information
about the scope of the scheme.” 302 F.3d at 289. We held that the express language of the plea
agreement indicated that the parties mutually understood that the underlying scheme was larger than
the scheme alleged in the charging document. Id. at 290 (reasoning that “that the plural word
‘victims’ and reference to ‘other computer and delivery companies’ [in the plea agreement] make
plain that this agreement goes beyond” the one victim described in the count of conviction); see also
United States v. Hensley, 91 F.3d 274, 277 (1st Cir. 1996) (determining the scope of the scheme “by
examining the terms of the indictment and the plea agreement”); United States v. Turino, 978 F.2d
315 (7t h Cir. 1992) (reviewing the plea agreement and statements made by the parties at the plea
hearing to define the scope of the scheme to defraud).
This distinction between co nvictions derived from verdicts and those derived from plea
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agreements is intuitive. When a defendant is convicted of fraud by a jury, the precise scope of his
fraudulent scheme is defined by the jury verdict. Because juries do not supplement verdict forms with
commentary, but merely state whether a defendant acted in accord with the allegations outlined in
the charging document, the scope of a fraud conviction based on a jury verdict is best deciphered, as
a practical matter, from the counts of conviction. When a defendant pleads guilty to fraud, however,
the scope of the underlying scheme is defined by the parties themselves. See generally Hughey v.
United States, 495 U.S. 411, 421, 110 S. Ct. 1979, 109 L. Ed.2d 408 (1990) (“The essence of a plea
agreement is that both the prosecution and the defense make concessions to avoid potential losses.”).
The mutual understanding reached by parties during plea negotiations is normally not detailed in the
original charging document, and is more often gleaned from any superceding indictments, plea
agreements, and statements made by the parties during plea and sentencing hearings. Because
Adams’s conviction was based on a guilty plea, we hold that the district court erred by discerning the
scope of Adams’s fraudulent scheme from the strict letter of the indictment.
B. The Mutual Understanding of the Parties
We review the indictment, the factual basis, the plea agreement, and the statements made
during the plea and sentencing hearings to determine the mutual understanding reached by Adams and
the Government regarding the scope of Adams’s scheme to defraud. Adams pleaded guilty to two
counts of a fifteen-count indictment. Each count of conviction describes a single staged accident
followed by a single instance of fraud, and expressly incorporates the broad conspiracy alleged in
Count 1 as the underlying scheme to defraud. The counts of conviction, read by themselves, indicate
that Adams’s conviction is based on the broad scheme to defraud outlined in Count 1.
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Nonetheless, the context of Adams’s guilty plea makes clear that the parties mutually
understood that the conviction was based on a scheme to defraud that was narrower than the scheme
outlined in Count 1. The Government’s proposed factual basis neither incorporates Count 1 of the
indictment nor references any one of the other twelve accidents allegedly staged by the defendants.
After Adams pleaded guilty to participating in the narrow scheme to aggravate damage to two cars
and to file two false insurance claims, the Government replied that it “disagree[d] with the facts but
. . . agree[d] that [Adams] has admitted enough for the Court to find him guilty . . . .” The district
court then held that Adams’s version of the factual basis was sufficient to support his guilty plea,
reasoning that “[t]he distinction . . . between what Mr. Adams agrees to and what the Government
thinks as far as the fraud is concerned, is a distinction without a difference.”
Moreover, the language of Adams’s plea agreement, and the statements of the parties during
the sentencing hearing, do not suggest in any way that Adams engaged in, or that he agreed to pay
restitution for harm caused by, a fraudulent scheme exceeding the scope of the factual basis
supporting his guilty plea. It is therefore apparent from the context of the plea agreement that the
parties reached a mutual understanding that Adams’s conviction was based solely on his participation
in a scheme to aggravate damage to two automobiles and to file two false insurance claims.
IV. CONCLUSION
The district court’s restitution order is not authorized by the MVRA because it is not
restricted to the limits of Adams’s offense of conviction. We vacate the order, and remand to the
district court to order restitution for the harm caused by the narrow fraudulent scheme as mutually
understood by the parties. VACATED and REMANDED.
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