United States v. Maturin

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 1, 2007
______________________
No. 05-30756 Charles R. Fulbruge III
Clerk
______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

ROLAND MATURIN,

Defendant-Appellant.
________________________________________________

On Appeal from the United States District Court for the
Western District of Louisiana, Lafayette Division,
________________________________________________

Before JOLLY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Appellant Roland Maturin pleaded guilty to one count of

concealing assets in a bankruptcy proceeding, in violation of

18 U.S.C. § 152(1). Maturin now challenges the district

court’s restitution order as excessive. For the reasons set

forth below, we VACATE the district court’s order of

restitution and REMAND.

1
I.

2
 Appellant Roland Maturin was the president of RAM

Industries, Inc., a marine construction company. On August 4,

1998, Maturin caused RAM to file a voluntary Chapter 11

bankruptcy petition. On that same day, Maturin opened a bank

account in the name of RAM Industries with Farmers Merchants

Bank and Trust Company. Maturin failed to disclose the

existence of that account to RAM’s creditors and to the United

States Trustee. Between August 5, 1998 and April 29, 1999,

Maturin made a number of deposits into the account in order to

fraudulently conceal from creditors and the United States

Trustee funds that were, in reality, property of the bankruptcy

estate. According to the pre-sentence investigation report,

the sum total of these deposits was $164,988.98.

A creditor of RAM Industries eventually became aware of

the concealed account, and Maturin was indicted on August 14,

2003. The indictment charged Maturin with 28 counts of

unlawful concealment of assets, in violation of 18 U.S.C. §

152(1) (one count for each allegedly fraudulent deposit to, or

disbursement from, the concealed account between August 5, 1998

and April 29, 1999), and one count of making a false statement

under oath, in violation of 18 U.S.C. § 152(2). On March 16,

2005, pursuant to a plea agreement with the government, Maturin

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pleaded guilty to count 1 of the indictment, which charged

Maturin with making a fraudulent deposit of $54,384.43 into the

concealed account on August 6, 1998. Under the terms of the

plea agreement, the government agreed to dismiss counts 2-29

of the indictment against Maturin.

In the factual basis for his guilty plea, Maturin admitted

that he concealed assets from the creditors of RAM Industries

and the United States Trustee from August 5, 1998 through April

29, 1999, and that the August 6, 1998 deposit was “[o]ne of the

deposits which should have been included and/or reported to the

bankruptcy estate, creditors and trustee.” In addition, in

response to a question from the district court during his plea

colloquy, Maturin stated that he believed that he had deposited

a total of roughly $130,000 in the concealed account, but that

he was not sure of the exact amount. Maturin’s plea agreement

with the government did not mention restitution, and the

district court did not discuss the possibility of restitution

with Maturin during his plea colloquy.

Before Maturin was sentenced, the probation officer issued

a pre-sentence investigation report, which recommended that the

court order Maturin to pay restitution in the amount of

$164,988.98. That figure represented the total amount of funds

4
that Maturin allegedly deposited into the concealed account

between August 5, 1998 and April 1, 1999. Maturin did not file

any objections to the pre-sentence investigation report. On

July 13, 2005, the district court sentenced Maturin to 21

months in prison, to be followed by 3 years of supervised

release. The district court also ordered Maturin to pay

$164,988.98 in restitution to the bankruptcy court.

Maturin did not object to the district court’s restitution

order at the time of sentencing. On this appeal, however,

Maturin asserts that the restitution order exceeded the

district court’s authority because it imposed restitution based

on charges and conduct for which Maturin was not convicted.

II.

This court ordinarily reviews the legality of a

restitution order de novo. See, e.g., United States v. Adams,

363 F.3d 363, 365 (5th Cir. 2004). Because Maturin failed to

object to either the amount of restitution recommended in the

pre-sentence investigation report or the district court’s

restitution order, however, we review Maturin’s claim only for

plain error. See United States v. Howard, 220 F.3d 645, 647

(5th Cir. 2003) (“There being no objection to the order of

restitution at sentencing, we review for plain error.”).

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 Under the plain error standard, this court can correct an

error in the district court proceedings only if the error was

clear or obvious and affected the substantial rights of the

defendant. See United States v. Coil, 442 F.3d 912, 916 (5th

Cir. 2006) (“To establish plain error, [the defendant] must

show that (1) there is an error, (2) the error is clear or

obvious, and (3) the error affects his substantial rights.”);

Fed. R. Crim. P. 52(b) (“A plain error that affects substantial

rights may be considered even though it was not brought to the

court’s attention.”). If those conditions are met, this court

may, in its discretion, grant the defendant relief if “the

error seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” United States v. Ibarra-

Zelaya, 465 F.3d 596, 606 (5th Cir. 2006) (citing United States

v. Mares, 402 F.3d 511, 520 (5th Cir. 2005)).

III.

The trial court ordered Maturin to pay restitution in the

amount of $164,988.98, representing the total amount of funds

that Maturin deposited into the concealed account between

August 5, 1998 and April 1, 1999. In essence, the district

court’s restitution order covered all of the assets of the

bankruptcy estate that Maturin was alleged to have fraudulently

6
concealed. Maturin asserts that the restitution order was

unlawful because it imposed restitution in excess of the amount

of loss caused by the offense for which Maturin was convicted,

count 1 of the indictment.

The district court’s award of restitution in this case is

governed by 18 U.S.C. § 3556, which provides that “[t]he court,

in imposing a sentence on a defendant who has been found guilty

of an offense shall order restitution in accordance with [18

U.S.C. §] 3663A, and may order restitution in accordance with

[18 U.S.C. §] 3663.” 18 U.S.C. § 3663A, the Mandatory Victims

Restitution Act of 1996 (“MVRA”), provides that, when a

defendant has been convicted of any of a list of specified

offenses, including “any offense committed by fraud or deceit,”

the sentencing court “shall order . . . that the defendant make

restitution to the victim of the offense.” The MVRA’s

discretionary counterpart, the Victim and Witness Protection

Act (“VWPA”), 18 U.S.C. § 3663, provides that, in cases where

the MVRA does not apply, the court “may order” a defendant

convicted of an offense to “make restitution to any victim of

such offense.” The parties in this case agree that the MVRA’s

mandatory restitution provisions apply to Maturin’s

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conviction.1

The general rule is that a district court can award

restitution to victims of the offense, but the restitution

award can encompass only those losses that resulted directly

from the offense for which the defendant was convicted. See

Hughey v. United States, 495 U.S. 411, 413 (1990) (“Hughey I”)

(“[T]he language and structure of the [VWPA] make plain

Congress’ intent to authorize an award of restitution only for

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

the offense of conviction.”).2

The MVRA defines a “victim” of the offense as “a person

directly and proximately harmed as a result of the commission

1
A district court may also order restitution as a condition of
supervised release. See 18 U.S.C. § 3583(d). Although the
district court did not make clear the statutory basis for its award
of restitution, the government does not argue that 18 U.S.C. §
3583(d) increases the district court’s authority to impose
restitution in any way that is relevant to this case, and this
court has previously suggested that section 3583(d) cannot be used
to circumvent otherwise applicable substantive limitations on an
award of restitution. See United States v. Love, 431 F.3d 477,
480-81 (5th Cir. 2005).
2
Although the Supreme Court’s decision in Hughey I predated
the enactment of the MVRA, and the VWPA was amended in several
respects after Hughey I, this court has long recognized that: (1)
the Hughey I court’s holding that restitution must be limited to
losses caused by the offense of conviction remains good law, see
United States v. Hughey, 147 F.3d 423, 437 (5th Cir. 1998) (“Hughey
II”) (“That part of Hughey which restricted the award of
restitution to the limits of the offense . . . still stands.”); and
(2) the rule of Hughey I also applies to cases arising under the
MVRA. See United States v. Mancillas, 172 F.3d 341, 343 (5th Cir.
1999); Adams, 363 F.3d at 366.
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of an offense for which restitution may be ordered.” 18 U.S.C.

§ 3663A(a)(2). The MVRA also, however, broadens the definition

of the term “victim” for any “offense that involves as an

element a scheme, conspiracy, or pattern of criminal activity”

to include “any person directly harmed by the defendant’s

criminal conduct in the course of the scheme, conspiracy, or

pattern.” Id. Thus, this court has held “that where a

fraudulent scheme is an element of the conviction, the court

may award restitution for actions pursuant to that scheme.”

United States v. Cothran, 302 F.3d 279, 289 (5th Cir. 2002)

(emphasis added) (internal quotation marks omitted); Hughey II,

147 F.3d at 437 (“The statute now provides that when the

subject offense involves a scheme, conspiracy, or pattern of

criminal activity, restitution may be awarded to any person who

is directly harmed by the defendant’s course of criminal

conduct.”). When the count of conviction does not require

proof of a scheme, conspiracy, or pattern, however, as noted

above, the defendant “is only responsible to pay restitution

for the conduct underlying the offense for which he has been

convicted.” Adams, 363 F.3d at 366; Mancillas, 172 F.3d at

343.

The VWPA provides an exception to these general rules for

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cases in which the defendant has agreed to a particular award

of restitution, as it provides that “[t]he court may also order

restitution in any criminal case to the extent agreed to by the

parties in a plea agreement.” 18 U.S.C. § 3663(a)(3); see also

id. § 3663A(a)(3) (“The court shall also order, if agreed to

by the parties in a plea agreement, restitution to persons

other than the victim of the offense.”).

In this case, it is undisputed that the district court’s

award of restitution in the amount of $164,988.98 goes well

beyond the losses that were caused directly by the conduct for

which Maturin was actually convicted. Count 1, the count to

which Maturin pleaded guilty, simply charged that he deposited

$58,384.43 belonging to the bankruptcy estate into the

concealed account. Accordingly, to determine the propriety of

the district court’s restitution order, this court must

consider whether the offense for which Maturin was convicted

includes as an element a scheme, conspiracy, or pattern of

activity, and/or whether the parties agreed in Maturin’s plea

agreement that he would be subject to restitution for losses

based on the dismissed counts of the indictment.

A.

Both the statutory language of the MVRA and this court’s

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prior decisions make it plain that a defendant’s conviction on

one count can support a broad restitution award encompassing

additional losses only if the count of conviction requires

proof of a scheme, conspiracy, or pattern of criminal activity

as an element. See id. § 3663A(a)(2); Cothran, 302 F.3d at

289. It is unmistakably clear, however, from the plain

language of 18 U.S.C. § 152(1) — the statute under which

Maturin was convicted — that the statute does not have “as an

element a scheme, conspiracy, or pattern of criminal activity.”

18 U.S.C. § 3663A(a)(2). 18 U.S.C. § 152(1) makes it unlawful

to “knowingly and fraudulently conceal[] . . . in connection

with a case under title 11, from creditors or the United States

Trustee, any property belonging to the estate of a debtor.”

Nothing in the statutory text so much as hints that the

government must prove a scheme, conspiracy, or pattern of

activity in order to convict. In addition, none of the

documents supporting Maturin’s conviction indicates that the

district court, the government, or Maturin believed that such

proof was necessary. In fact, the words “scheme,”

“conspiracy,” and “pattern” do not appear anywhere in the

indictment, the plea agreement, the factual basis for Maturin’s

11
guilty plea, or Maturin’s acknowledgement of the elements of

the offense.3

We therefore conclude that 18 U.S.C. § 152(1) does not

have as an element proof of a scheme, conspiracy, or pattern

of criminal activity, and, accordingly, Maturin’s conviction

under that section cannot, without more, support the district

court’s restitution order. See United States v. Lawrence, 189

F.3d 838, 847 (9th Cir. 1999) (noting that “bankruptcy fraud”

under 18 U.S.C. § 152 “contain[s] no elements relating to

scheme, conspiracy, or pattern”); cf. United States v. Randle,

324 F.3d 550, 556-57 (7th Cir. 2003) (noting government’s

concession “that proof of scheme, conspiracy, or pattern is not

an element of the offense of bankruptcy fraud”).4

3
According to the Fifth Circuit pattern jury instructions, to
convict under 18 U.S.C. § 152(1), the government must prove: (1)
“That there existed a proceeding in bankruptcy;” (2) “That certain
property or assets belonged to the bankrupt estate;” (3) “That
defendant concealed such property from the creditors [custodian]
[trustee] [marshal] [some person] charged with control or custody
of such property;” and (4) “That the defendant did so knowingly and
fraudulently.” Fifth Circuit Pattern Jury Instructions: Criminal
§ 2.10 (brackets in original).
4
Because the count of conviction does not require proof of a
scheme, conspiracy, or pattern of criminal activity, the parties’
extensive discussions of this court’s decisions in Adams and
Cothran are inapposite. In each of those cases, the defendant was
convicted of a crime that had a scheme or conspiracy as an element,
and it was this court’s task to determine the scope of the
defendant’s scheme or conspiracy in the particular case. See
Adams, 363 F.3d at 366-67; Cothran, 302 F.3d at 289. In this case,
we have no occasion to consider the scope of any claimed scheme or
conspiracy.
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 B.

The district court could nevertheless order restitution

for losses in excess of those caused by Maturin’s conduct in

connection with count 1 of the indictment if Maturin and the

government agreed that Maturin would pay restitution for all

of the assets of the bankruptcy estate that were deposited into

the concealed bank account. See 18 U.S.C. § 3663(a)(3). The

plea agreement, however, makes no mention of restitution, and

there is simply no evidence in the record from which the

district court or this court could find such an agreement.5

5
The government’s reliance on United States v. Arnold, 947
F.2d 1236, 1238 (5th Cir. 1991), for the proposition that a
defendant’s failure to object to the district court’s restitution
order constitutes evidence that the defendant agreed to pay the
full amount of restitution ordered by the district court, is
misplaced. Arnold is readily distinguishable from this case. In
Arnold, the defendant’s plea agreement expressly noted that,
although he was pleading guilty to only one count of the
indictment, he had participated in a single fraudulent scheme that
resulted in losses of $669,390. Id. In addition, the defendant,
inter alia, reiterated his understanding that his guilty plea and
conviction included the larger scheme to defraud in a sworn
statement to the district court. Id. Thus, there was substantial
affirmative evidence that the defendant in Arnold had agreed to pay
restitution in the amount of $669,390. In those circumstances,
this court found that the defendant’s failure to object to the pre-
sentence investigation report’s restitution recommendation or the
district court’s restitution order constituted additional evidence
of the defendant’s agreement to pay the full amount of restitution
ordered. Id.
In this case, by contrast, neither Maturin’s plea agreement
nor the factual basis mentions restitution, and the district court
did not discuss restitution with Maturin during his guilty plea
colloquy. We do not read Arnold to hold that a defendant’s failure
to object to the pre-sentence investigation report or the district
court’s restitution order is sufficient to establish that the
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 C.

Although we have found that the district court erred when

it ordered that Maturin pay restitution for losses caused by

conduct other than the conduct for which he was convicted, this

court can correct that error only if the error is plain, it

affected Maturin’s substantial rights, and it seriously

affected the fairness, integrity, or public reputation of

judicial proceedings. See Ibarra-Zelaya, 465 F.3d at 606.

An error is considered plain, or obvious, for purposes of

this court’s plain error inquiry only if the error is clear

under existing law. United States v. Olano, 507 U.S. 725, 734

(1993) (stating that a “court of appeals cannot correct an

error pursuant to Rule 52(b) unless the error is clear under

current law”). While this court has never expressly determined

that the crime of concealing assets in a bankruptcy proceeding

does not have a scheme, conspiracy, or pattern of criminal

activity as an element, as we discussed above, it is

indisputably clear from a reading of the plain statutory

language, as well as this court’s pattern jury instructions,

that the statute contains no such element. We therefore find

defendant agreed to pay the full amount of restitution that was
ultimately ordered where, as here, the record is otherwise devoid
of evidence of any agreement between the government and the
defendant concerning restitution.
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that the district court’s error was plain.

We also find that the error affected Maturin’s substantial

rights and the fairness, integrity, or public reputation of

judicial proceedings. An error affects the defendant’s

substantial rights if “it affected the outcome of the trial

court proceedings.” United States v. Alarcon, 261 F.3d 416,

423 (5th Cir. 2001); United States v. Inman, 411 F.3d 591, 595

(5th Cir. 2005) (holding that “[t]he restitution order affected

[the defendant’s] substantial rights because the outcome of the

district court’s proceedings would have been different if the

error had not occurred”). In this case, Maturin was ordered

to pay restitution of $164,988.98 as a result of the district

court’s legal error about the scope of its authority to order

restitution; without the error, the court could not have

ordered restitution in an amount greater than $54,384.43.

Thus, we easily conclude that the error, which increased the

amount of restitution that Maturin was ordered to pay by over

$100,000, affected the outcome of the district court

proceedings and Maturin’s substantial rights. See United

States v. Austin, 479 F.3d 363, 373 (5th Cir. 2007) (“When a

defendant is ordered to pay restitution in an amount greater

than the loss caused, the error affects substantial rights as

15
well as the fairness and integrity of the judicial

proceeding.”); Inman, 411 F.3d at 595 (vacating restitution

award under plain error standard where amount awarded exceeded

permissible award by over $70,000).

CONCLUSION

For the reasons stated above, we VACATE the district

court’s restitution order and REMAND the case to the district

court for further proceedings consistent with this opinion.

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