JERRY E. SMITH, Circuit Judge:
This appeal challenges the denial of a motion under Fed.R.Crim.P. 35(a) to strike the restitution provisions from a partially-suspended sentence and the conditions of probation. Joseph E. Kirkland, III, was indicted under 18 U.S.C. § 1001 for concealing information relating to the use of a portion ($90,895) of a $1 million government loan extended to finance Kirkland's company's development of a housing project. Kirkland's contract with the Farmers Home Administration (FmHA) provided that FmHA would loan the development company money for use in construction, so long as neither Kirkland nor his company had an "identity of interest" with the general contractor named to work the project. Through several similar schemes (about which he testified at the trials of others, but for which Kirkland was not indicted), he had illegally obtained some $389,755 in undisclosed "consulting fees" from the contractor.
Kirkland agreed to plead guilty; in return, the government agreed, inter alia, to recommend that the district court order Kirkland to pay FmHA $200,000 in restitution. The plea agreement provided further that the district court could order restitution in any amount authorized by the provisions of the Victim and Witness Protection Act of 1982, now found at 18 U.S.C. § 3663.
In return for Kirkland's complete cooperation in connection with the on-going investigation of corruption among FmHA employees, agreement to testify against any government personnel brought to trial, and entry of a voluntary guilty plea on one felony count of concealing information relating to the use of federal loans, the government agreed to forego additional prosecutions for his involvement in other corrupt and fraudulent activities. In this Memorandum of Understanding, Kirkland agreed that he would subsequently elect one of two potential recommendations which the government would make to the court at sentencing. Both recommendations included the payment of substantial sums in restitution: $600,000 and no jail time under the first option, and $200,000 and some term of incarceration under the second.
Kirkland and his attorneys elected the second option, under which the government would make a recommendation of $200,000 in restitution and a maximum imprisonment term of one year. Pursuant to the Final Memorandum of Understanding, the district court, despite the government's recommendation of $200,000, could order restitution in any amount authorized by what is now 18 U.S.C. § 3663.
Kirkland entered a plea of guilty to a single violation of 18 U.S.C. § 1001. Before the district court accepted that plea, the government recited the facts it would prove should the case go to trial. It alleged that Kirkland and Randall F. Aldridge were business partners in Marion Apartments, Limited (Marion). Kirkland signed a contract for Marion with FmHA to build a housing project. The contract provided that FmHA would loan Marion money for use in construction and that neither Marion nor Kirkland had an "identity of interest" with Eastline Corp., the general contractor named to work the project.
The district court accepted Kirkland's guilty plea and sentenced him to two years imprisonment, suspending one year and eight months, and ordering the remaining four months to be spent in a community center with work release. The court fined Kirkland $10,000, ordered a $50 special assessment, and required him to pay $200,000 in restitution to FmHA. The court placed Kirkland on five years' probation upon his release and made the restitution payment a condition of probation. The district court made restitution a part of the sentence pursuant to the Victim and Witness Protection Act of 1982, now found at 18 U.S.C.
III. The Challenge.
In reviewing the denial of a rule 35 motion, we examine only whether the sentence was illegal or whether the district court abused its discretion. United States v. Hanyard, 762 F.2d 1226, 1228 (5th Cir.1985); United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir.), cert. denied, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 407 (1986). Kirkland argues that the restitution provisions of his sentence are illegal in that (1) FmHA is not a statutory "victim," (2) is being repaid and so has no loss, and (3) is due to receive an amount unconstitutionally in excess of the sum alleged in the indictment.
IV. The Restitution Provisions.
Title 18 U.S.C. § 3663(a)(1) provides that a court may order a convicted person to pay restitution to any "victim" of the offense as part of the defendant's sentence. Section 3663(g) authorizes the court to make restitution a condition of probation, as did the now-repealed section 3651. Section 3664(a) lists relevant factors a court must consider in determining the restitutory amount, including any factors the court deems appropriate.
A. FmHA Was a "Victim" with Statutory Losses.
Non-human entities such as FmHA can be "victims" entitled to restitution under section 3663. United States v. Caddell, 830 F.2d 36, 39 (5th Cir.1987) (to FmHA under former section 3651); United States v. Grugette, 678 F.2d 600, 605 (5th Cir.1982) (SBA); United States v. Gallup, 812 F.2d 1271, 1276 (10th Cir.1987) (HUD); United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir.), cert. denied, 479 U.S. 963, 107 S.Ct. 462, 93 L.Ed.2d 407 (1986) (county welfare agency) (citing numerous cases from other circuits reaching the same result).
B. There Is No Double Recovery.
Kirkland also argues, however, that Marion is paying back the loan to FmHA, including the $90,865, and that FmHA has, therefore, suffered no loss entitling it to restitution. But FmHA correctly asserts that it lost control of that $90,865, and that its money was used for an unauthorized
Because Kirkland does not dispute FmHA's entitlement to repayment of its loans, but only questions FmHA's right to be "repaid twice," he emphasizes that this and all loans involved in the prior schemes are (1) business, not personal, debt and (2) are being repaid currently. He argues:
Kirkland asserts that Carpenter v. United States, ___ U.S. ___, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987), Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), United States v. Fischl, 797 F.2d 306 (6th Cir.1986), United States v. Anglian, 784 F.2d 765 (6th Cir.), cert. denied, 479 U.S. 841, 107 S.Ct. 148, 93 L.Ed.2d 89 (1986), and United States v. Palma, 760 F.2d 475 (3d Cir.1985), all "avoid the central issue of double repayment to FmHA in this case and the larger issue of whe[ther] restitution is proper in every case," because those cases all deal with appellants challenging the validity of their respective restitutions based upon disparate awards between co-defendants or similarly-situated individuals. However, Kirkland's arguments against these out-of-circuit cases in no way overcome the overwhelming authority they represent.
Our own precedents comport fully with the authorities listed above and have been cited in many of those cases. E.g., United States v. Carson, 669 F.2d 216 (5th Cir.1982). Kirkland argues that Carson is completely distinguishable because that debt, in contrast to his owed to FmHA, had been discharged in bankruptcy, so that no one was paying on it. However, Carson's order of restitution was clearly not based upon the lack of civil recourse against the defendant, but upon the "reforming discipline" of restitutory awards. Id. at 220.
Kirkland also relies heavily upon United States v. Boswell, 565 F.2d 1338 (5th Cir.), cert. denied, 439 U.S. 819, 99 S.Ct. 81, 58 L.Ed.2d 110 (1978). There, the defendants contested their guilt, went to trial, and were convicted of using false statements to persuade investors to place their money in a mortgage company from which they converted funds for their own use. As Kirkland notes, Boswell is our current statement of the law regarding the proper measure of damages to compensate an aggrieved party. As we stated in that opinion, an aggrieved party may collect only the amount due. While public policy prevents even victims of criminal conduct from recovering twice for harm done to them, Kirkland is totally incorrect and misleading in arguing that Boswell somehow precludes restitutory compensation for a victim when he is already receiving reparation from another source, such as insurance proceeds or a civil action against the defendant.
First, the remand in Boswell, for determination of losses incurred by investors in the mortgage company which the state had put into receivership, is not inconsistent with the treatment of Kirkland here, because the trial court's loss determination in Boswell was incomplete and premature:
In staying the restitution order pending the outcome of Boswell's appeal, the Boswell panel upheld the trial court's conclusion that restitution was appropriate;
Kirkland's situation is easily distinguishable from the Boswell case. In Boswell, the investors could count on receiving a refund of their loss because they were relying upon two disinterested parties — the state receiver and the probation officer. In contrast, Kirkland asks this court to force FmHA to rely on his good faith to repay the loans. Because no funds are being held in trust by a disinterested party, FmHA will have to incur considerable expense to collect its funds if they are not returned through the probation officer. See Grugette, 678 F.2d at 605.
An additional distinction with Boswell is that the loss to FmHA and the gain to Kirkland continue to this day. Boswell was no longer able to reap financial benefit from his crime once he was convicted and sentenced. Because Kirkland received loan funds, however, he continues to receive an undeserved and illegally-obtained benefit for the lifetime of the loan, even though he may be serving a felony sentence. This is not in keeping with the intent of Congress to have a restitutory order serve as a reforming discipline, as FmHA's arguments and controlling case law amply establish.
Should Kirkland's contention prevail, any person who fraudulently obtained loan funds, whether from the government or from a private entity such as a bank, would be permitted to enjoy the financial fruits of his crime so long as he eventually repaid the loan. Obviously, as FmHA convincingly contends, those who defraud public or private lenders should not be allowed to continue the deprivation of the loss of financial control suffered by the creditors, let alone continue to enjoy the fruits of their fraud, "merely because those felons are capable of meeting their minimum payment obligations."
This court has held, subsequent to Boswell, that a defendant who obtains a government loan by the use of false statements and subsequently defaults on that
C. Propriety of the Stipulated Amount.
Recognizing the weak underpinnings of the alleged double recovery, Kirkland argues, however, that he agreed only that the government would recommend $200,000 and that the district court was without authority to order such an amount even in light of his plea agreement. We now address that contention.
1. Amount Reached by Agreement.
Kirkland argues that if restitution is proper, the district court had authority to order it only for the loss alleged in the indictment: that resulting from the loss of control over $90,865. The government contends that Kirkland agreed to the $200,000 figure after admitting to similar schemes through which he received government loan money for personal use; furthermore, FmHA contends he might default on those loans, making immediate repayment of the stipulated amount both necessary and proper.
The courts that have considered the issue agree that the amount of restitution may be established by a plea agreement.
In United States v. Hawthorne, 806 F.2d 493 (3d Cir.1986), the court held that an order of restitution as a condition of probation under 18 U.S.C. § 3651 may exceed the amount of loss attributable to the counts of an indictment to which the defendant pleads guilty, if the defendant has been informed in plea negotiations or by the sentencing judge of the possibility that restitution will be required.
In this case, there was no dispute about either the type or amount of restitution to be paid. Kirkland freely elected to enter into an agreement with the government whereby he was placed on notice that the government would seek $200,000 in restitution. At the time of sentencing, Kirkland and his attorneys were given an opportunity to address the court or to present testimony relevant to the sentencing. Neither Kirkland nor his counsel sought to refute the type or amount of restitution sought by the government. Indeed, he was only too happy to assure the trial court of his ability to pay the entire amount within a year. Defense counsel even reminded the court that restitution could be imposed as a condition of probation as further protection for FmHA. Subsequently, he willingly paid the initial $50,000 installment, and did not even challenge the accuracy or fairness of the amount of restitution in his rule 35(a) motion to strike the restitution order.
2. Consideration of Unindicted Offenses.
Kirkland's belated effort to contest the accuracy of the amount is undercut by his own testimony at the Lester Howell trial before the same judge who sentenced him, at which he admitted that he had illegally obtained far more than $200,000 in government-funded "consulting fees." The combination of appellant's admissions under oath to the illegal receipt of, at least, $389,755 and his conduct at the sentencing hearing is as binding as a stipulation. Thus, his arguments as to other, extraneous offenses is unavailing.
V. Power To Set a Restitution Sum Higher than Alleged.
This and other courts of appeals have held that district courts have authority to order a defendant to pay restitution in an amount greater than the loss alleged in the indictment. See, e.g., United States v. Landay, 513 F.2d 306, 307-08 (5th Cir.1975) (restitution in amount exceeding loss alleged in indictment upheld under former section 3651 where convicted person had consented to a civil judgment in that amount).
Kirkland's situation is entirely different. The loss determination for FmHA was arrived at through detailed plea negotiations that resulted in an agreement in which Kirkland readily acquiesced. Furthermore, the amount was significantly below the total he admitted under oath to having received for personal use from other government-funded housing projects. See United States v. Harris, 761 F.2d 394 (7th Cir.1985) (no abuse of discretion in awarding restitution in an amount, as a sum certain, that did not exceed the government's actual losses resulting from the forgery).
Kirkland also relies upon an inapposite Second Circuit case, United States v. Elkin, 731 F.2d 1005 (2d Cir.1984), cert. denied, 469 U.S. 822, 105 S.Ct. 97, 83 L.Ed.2d 43 (1985), to which the Victim and Witness Protection Act of 1982 could not apply. The prosecutor there failed to prove loss in excess of the amount alleged in the indictment, and so the restitutory sum ordered was not premised upon any facts in evidence. However, even if the case more directly supported Kirkland's due process claim, the Second Circuit strained to distinguish the Ninth Circuit's Phillips opinion and our older Landay decision. As with the defendant in Landay, Kirkland entered a guilty plea and freely and voluntarily executed a consensual plea bargain, including an admission of amounts justifiably owed in restitution. The bargain having been made and Kirkland having received the benefit of that bargain, he is bound to it.
Finding Kirkland's arguments legally and factual unsupportable, we AFFIRM.
(1) The established amount, below what Kirkland illegally obtained, is not guaranteed by a neutral party, but merely by his wholly-owned and -controlled enterprises. Absent the coercive influence of the possible revocation of probation, there is little guarantee, beyond his good faith, that the loans will be repaid; and since, significantly, the repayment term will continue for many years after his period of probation expires, FmHA should not have to resort to civil process 40-plus years hence just because proper restitution was not awarded now.
(2) If restitution of the illegally obtained sums is not made, Kirkland and his businesses will continue to enjoy not only the loans, but use of the moneys over which Kirkland's schemes deprived FmHA of control.
(3) As in Fagan and Herron, and contrary to the circumstances in Boswell, where set-off for moneys returned to depositors by the receiver would affect the restitutory loss suffered by those investors, full repayment to FmHA by Marion Apartments will not recompense it for the loss of control of the $90,865, let alone for portions of the other $298,860 (admitted to by Kirkland as a prosecution witness at another trial as illegally obtained from other projects), represented by the $200,000 restitutory order.