United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
WILLIAM E. SMITH, CHIEF JUDGE.
Wissam Khalil and Bassam Khalil have pled guilty to various
crimes, including contraband cigarette trafficking in
violation of 18 U.S.C. § 2342. (See Judgment
Orders, ECF Nos. 197, 198.) As part of their sentence, this
Court ordered that both Defendants pay restitution, but left
the restitution amount unresolved in the hopes that the
parties could come to an agreement. (Order Rest., ECF No.
204.) The parties have been unable to do so, and the
Government moves for an order compelling Defendants to
commence making restitution payments. (Gov't Mot.
Enforce, ECF No. 206.) Defendants have filed an Objection to
the Government's Motion (ECF Nos. 214, 216) to which the
Government has filed a Reply (ECF No. 215). This Court held
an evidentiary hearing on the motion on February 24, 2017.
reasons set forth herein, the Government's Motion to
Enforce (ECF No. 206) is DENIED without prejudice. I.
Defendants' Objections to Restitution Defendants Wissam
Khalil and Bassam Khalil have provided several arguments for
why they should not be required to pay restitution. Each of
Defendants' arguments are addressed below.
argue that the Court cannot order restitution because their
plea agreements do not provide for the imposition of
restitution. The Court disagrees. The First Circuit has
consistently held that courts should interpret plea
agreements as they would ordinary contracts, subject to
certain limitations. See, e.g., United States v.
Alegria, 192 F.3d 179, 183 (1st Cir. 1999) (“If a
plea agreement unambiguously resolves an issue, that usually
ends the judicial inquiry.”) Paragraph Two Section C of
both Defendants' plea agreements states, “[t]he
government is free to recommend any combination of supervised
release, fines, and restitution which it deems
appropriate.” (Plea Agreement 2, ECF Nos. 170, 171.)
This language is unambiguous: the Court may order
restitution. See United States v. Caramadre, 807
F.3d 359, 378-79 (1st Cir. 2015) (reviewing identical plea
agreement language and holding that “[t]he clear
implication of this statement is that restitution would be
part of [the Defendant's] sentence”).
even absent specific language in the plea agreement, the
Court has independent authority to impose restitution. 18
U.S.C. § 3663 states, in part, that “[t]he court,
when sentencing a defendant convicted of an offense under
this title . . . may order . . . that the defendant make
restitution to any victim of such offense . . . .” The
First Circuit, citing this statute, has held “[t]hat
restitution is a part of [the Defendant's] sentence
scarcely can be doubted.” Caramadre, 807 F.3d
at 378. Therefore, without even looking to the language of
Defendants' plea agreements, the Court is free to impose
an order of restitution.
second issue raised by Defendants is whether the Government
complied with the notice requirements in 18 U.S.C. §
3664(d)(2)(A)-(B). The two victims in this case are the State
of Rhode Island and the Commonwealth of Virginia. (P.S.R. for
Bassam Khalil ¶ 27, ECF No. 180; P.S.R. for Wissam
Khalil ¶ 44, ECF No. 182.) Defendants do not dispute
that the Government provided both victims with a
“Declaration of Victim Losses” form. That form
provides victims with information regarding the losses
sustained and an opportunity to submit an affidavit.
(Id.) The Government has therefore complied with the
notice requirements set forth in section 3664(d)(2)(A)-(B).
Restitution to the Commonwealth of Virginia
third argument is that the amounts allegedly owed to the
State of Virginia “were in fact paid.”
(Def.'s Resp. ¶ 3, ECF No. 214.) The Government
disputes that assertion, but “concedes” that
“despite repeated attempts to secure a declaration of
loss from the Commonwealth of Virginia, no such document was
produced.” (Gov't Rebuttal ¶ 3, ECF No. 215.)
Therefore, the Government is not seeking, and the Court will
not order, restitution for the Commonwealth of Virginia.
Possible Mitigating Factors
fourth issue raised by Defendants is whether the Court should
reduce the amount of Defendants' restitution because law
enforcement, as part of this case, seized Defendants'
vehicle and cash. By statute, the Court must consider
“the financial resources of the defendant, the
financial needs and earning ability of the defendant and the
defendant's dependents, and such other factors as the
court deems appropriate.” 18 U.S.C. §
3663(B)(i)(II). However, “[t]he burden of demonstrating
the financial resources of the defendant and the financial
needs of the defendant's dependents, shall be on the
defendant.” 18 § U.S.C. 3664(e). Here, Defendants
do even not argue that the seized vehicle and cash must be
considered because of Defendants' “financial
resources” or the “financial needs and earning
ability of” Defendants and their dependents.
(See ECF Nos. 214, 216.)
Court therefore need only consider the Defendants' seized
property as it “deems appropriate.” Defendants
fail to cite any authority for the proposition that a
defendant's loss, incurred because of criminal
forfeiture, is an appropriate consideration in ordering
restitution. Furthermore, the Court finds that providing a
credit against restitution for seized items in this case
would inhibit the “objective” of restitution,
which is “to make the victim whole.” See
United States v. Salas-Fernandez, 620 F.3d 45, 49 (1st
Cir. 2010); United States v. Acosta, 303 F.3d 78, 86
(1st Cir. 2002) (“The purpose behind the statute is to
insure that the wrongdoer make good, to the degree possible,
the harm he ...