United States v. Kimball Richards

FILED
NOT FOR PUBLICATION MAR 20 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-56313

Plaintiff - Appellant, D.C. No. 2:09-cv-08209-R-PLA

v.
MEMORANDUM *
KIMBALL DEAN RICHARDS,

Defendant - Appellee.

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding

Argued and Submitted February 14, 2012
Pasadena, California

Before: FARRIS and W. FLETCHER, Circuit Judges, and HELLERSTEIN,
Senior District Judge.**

The United States (“Appellant”) appeals from an order of the district court

granting Kimball Dean Richards’s (“Appellee”) motion to dismiss Appellant’s

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for Southern New York, sitting by designation.
action to collect the restitution ordered by Appellee’s judgment of conviction.

Appellant contends that the district judge erred by relying on the statute of

limitations with respect to liability for restitution that was in effect at the time of

Appellee’s conviction rather than the later amendment of the statute of limitations

in effect at the time the district court granted Appellee’s motion. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and review questions of law regarding

the application of restitution statutes de novo. United States v. Berger, 574 F.3d

1202, 1204 (9th Cir. 2009). We assume familiarity with the record. We reverse

and remand.

On April 30, 1990, Appellee was sentenced on multiple felony counts of

bank fraud, mail fraud, and wire fraud. The judgment ordered a sentence of 15

years custody and also ordered restitution. Appellee was released from

imprisonment on January 8, 1999.

The government may enforce a judgment of restitution. 18 U.S.C. §

3613(a). At the time the judgment was entered, pursuant to the Victim and

Witness Protection Act of 1982 (the “VWPA”), Appellee’s liability to pay

restitution terminated upon his death or twenty years after entry of judgment. See

18 U.S.C. § 3613(b) (1990). However, pursuant to the Mandatory Victim

Restitution Act of 1996 (the “MVRA”), the statute was amended such that liability

2
to pay restitution terminates “the later of 20 years from the entry of judgment or 20

years after the release from imprisonment of the person fined, or upon the death of

the individual fined.” 18 U.S.C. § 3613(b).

The district court held that the VWPA applied and that Appellee’s liability

for restitution had terminated, since more than twenty years had elapsed from the

entry of judgment on April 30, 1990. However, the statute of limitations with

respect to liability for restitution is procedural. Absent congressional intent to the

contrary, the district court is required to apply the law in effect at the time of its

decision. Thus, the district court should have applied the MVRA, not the VWPA.

See Landgraf v. USI Film Prods., 511 U.S. 244, 275 & nn. 28-29 (1994); Friel v.

Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) (per curiam). Pursuant

to the MVRA, Appellee’s liability for restitution has not terminated.

Appellee’s argument that application of the MVRA would violate the Ex

Post Facto Clause of the Constitution is without merit, for an expansion of the

period in which Appellee is liable for restitution does not increase Appellee’s

punishment. See United States v. Gianelli, 543 F.3d 1178, 1183 (9th Cir. 2008).

Appellee has waived his claims with respect to the validity of the restitution order

by failing to challenge the restitution order on direct appeal. See, e.g., id. at 1184.

REVERSE AND REMAND.