United States District Court, D. South Dakota, Southern Division
McKennan Hospital and Health Center, Sioux Falls, SD,
Garnishee, Pro se, Sioux Falls, SD.
United States of America, Plaintiff: Jan L. Holmgren (USA),
Stephanie Carlson Bengford, U.S. Attorney's Office (Sioux
Falls, SD), Sioux Falls, SD.
OPINION AND ORDER
L. Piersol, United States District Judge.
Johnson (" Johnson" ) moves for a clarification of
the Court's order at sentencing regarding restitution.
Specifically, Johnson requests the Court to clarify whether
the order includes interest on the restitution ordered.
February of 1997, Johnson was charged with embezzling
approximately $76,400.00 from the bank where she was employed
as a teller. According to the presentence investigation
report (PSR), the law enforcement investigation revealed that
she stole approximately $52,000 while at the Sunset Branch
where she worked until June 16, 1995, at which time she was
transferred to the East branch. While at the East branch,
Johnson made 64 different entries in the general ledger
between June 16, 1995 and May 21, 1996. On May 21, 1996,
Johnson withdrew the last of four $5,000 withdraws from a
customer's account. In the factual basis statement,
Johnson admitted to embezzling a total of $56,400 from the
bank and an additional $20,000 from the customer's
account, making the total amount embezzled $76,400 over the
four-year time period alleged in the indictment. (Doc. 10.)
was charged in a one count indictment of embezzlement in
violation of 18 U.S.C. § 656. The dates of the offenses
were listed in the indictment as " [o]n or about
February 15, 1992 continuing to on or about May 22,
1996." (Doc. 1.) On April 21, 1997, Johnson entered a
plea of guilty to the indictment. In the plea agreement, the
government asked for restitution to the bank in the amount of
$76,400. (Doc. 9.) Interest on restitution was not mentioned
in the plea agreement. The plea agreement also contains an
express waiver by Johnson of her right to appeal.
11, 12 and 13 of the PSR contain the victim impact statement,
indicating that the bank reimbursed the victim customer's
account $1,857.59 for interest lost. The bank requested that
Johnson be ordered to pay that interest. Based on the
Sentencing Guidelines, the PSR writer could not recommend
that interest be included as part of the loss.
21, 1997, Johnson was sentenced to a term of 5 months
imprisonment followed by 5 months home detention. She was
ordered to pay restitution to the bank in the amount of
$76,400. The Court did not award the interest requested by
the bank in the amount of $1,857.59 which was discussed in
paragraphs 11, 12 and 13 of the PSR. Payment of restitution
was to be in full immediately; any amount not paid in full
would be due in monthly installments of $150, to begin 14
days following Johnson's release. The minutes from the
sentencing hearing show that the Court found Johnson did not
have the ability to pay a fine, and the fine was waived.
(Doc. 14.) The minutes say nothing about interest on the
was released from prison, got a job and, through the
government's garnishment of her wages, she has paid the
entire principal balance owing on her restitution. The
government is continuing to garnish Johnson's wages in
order to collect interest on the restitution. In its
September 22 response to Johnson's pending motion, the
government admits Johnson has paid the principal amount of
restitution in full, but the government asserts that, as of
that date, she owed $45,234.18 in interest. (Doc. 49.)
brought the instant motion seeking clarification of the order
of restitution. She asserts that because the Court did not
order interest on the restitution, the government cannot
collect it. The government argues first that this Court lacks
jurisdiction to change the restitution order. In addition,
the government contends that the Mandatory Victim's
Restitution Act applies in this case, requiring interest to
be paid on Johnson's restitution despite the Court's
failure to impose interest.
Mandatory Victims Restitution Act (MVRA) was passed in 1996.
The MVRA " applies in sentencing proceedings when the
defendant has been convicted on or after the Act's
effective date of April 24, 1996." United States v.
Williams, 128 F.3d 1239, 1240 (8th Cir. 1997), citing 18
U.S.C.A. § 3663A(a)(1) (West Supp.1997). The MVRA
provides that interest " shall" be payable on
restitution of more than $2,500 unless restitution is paid in
full within 15 days of judgment. 18 U.S.C. § 3612(f).
Interest is computed at a rate equal to the weekly average
1-year constant maturity Treasury yield. 18 U.S.C. §
3612(f)(2). The court may waive interest, limit interest to a
specific dollar amount, or limit interest to a specific
period of time during which interest accrues. 18 U.S.C.
§ 3612(f)(3). The Attorney General also may waive
interest. 18 U.S.C. § 3612(h).
to the effective date of the MVRA on April 24, 1996, the
Victim Witness Protection Act (VWPA), 18 U.S.C. § §
3663-3664, guided the courts imposing restitution in criminal
cases. The VWPA said nothing about interest on restitution,
but courts held that interest could be imposed on restitution
pursuant to the VWPA. See, e.g., Government of
Virgin Islands v. Davis, 43 F.3d 41, 47, 31 V.I. 332 (3d
Cir. 1994) (affirming district court's inclusion of
prejudgment interest in restitution order under VWPA);
United States v. Kress, 944 F.2d 155, 160 (3d Cir.
1991) (holding that postjudgment interest on restitution
order was implicitly authorized by the VWPA); United
States v. Smith, 944 F.2d 618, 626 (9th Cir. 1991);
United States v. Rochester, 898 F.2d 971, 983 (5th
Cir. 1990)(holding that although the VWPA was silent on the
issue of interest, " both pre- and postjudgment interest
may be awarded under the VWPA" ).
Johnson pleaded guilty and was sentenced after April 24,
1996, the government argues that the MVRA applies to her
case, thus mandating payment of interest on the entire amount
of restitution ordered because the interest was not
explicitly waived. Johnson asserts that applying the MVRA to
her case violates the Ex Post Facto Clause because it
increases the punishment for pre-enactment conduct. The
government responds that there is no Ex Post ...