Opinion
Criminal Action No. 94-158, SECTION "N".
March 13, 2000.
ORDER AND REASONS
Before the Court is pro se petitioner Felix A. Riggio, III's Motion for Modification of Restitution. For the following reasons, petitioner's motion is DENIED.
Petitioner's Motion requests relief in two separate and distinct cases: Criminal Action Nos. 93-205 and 94-156. Because this section of Court, Section "N," did not preside over Criminal Action No. 93-205, this Order and Reasons addresses only those arguments and claims for relief pertaining to Criminal Action No. 94-156, leaving all claims for relief pertaining to Criminal Action 93-205 for disposition by Section "M" of this Court.
Section "N" is also in receipt of petitioner's letter dated January 28, 2000, in which petitioner requested the Clerk of Court inform him of the status of his claims. The Court submits that this Order and Reasons disposes of all of petitioner's pending claims with respect to Criminal Action No. 94-158.
BACKGROUND
Following a jury trial in Section "M" of this Court, on January 13, 1994, Riggio was convicted of conspiracy to commit arson and use of fire to commit a felony, in violation of 18 U.S.C. § 371, 844(h) and 2. On March 23, 1994, petitioner was sentenced to a term of imprisonment of 101 months, and was ordered to make restitution to the Illinois Insurance Exchange in the amount of $12,000.00. Subsequently, in Criminal Action No. 94-158, Section "N," petitioner pleaded guilty to a scheme to infiltrate the video poker industry by organized crime in violation of 18 U.S.C. § 1962 (d) and 1963. On March 6, 1996, petitioner was sentenced to a term of imprisonment of 37 months, and was ordered to make restitution to Bally Gaming, Inc., in the amount of $100, 000.00. Riggio now contends that this Court failed to consider a mandatory factor in ordering restitution, and thus ordered restitution in an amount that he cannot pay in the present or any time in the future. Riggio also seeks modification of restitution due to his earning ability when he is released from prison.
Title 18 U.S.C. § 3582 and Fed.R.Crim.P. 35(a), pursuant to which petitioner seeks modification of restitution, do not provide a basis for modification of restitution under the facts and time line of petitioner's case.
LAW AND ANALYSIS
The Victim and Witness Protection Act ("VWPA") provides:
The court, in determining whether to order restitution under section 3663 of this title and the amount of such restitution, shall consider the amount of the loss sustained by any victim as a result of the offense, the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependants, and such other factors as the court deems appropriate.18 U.S.C. § 3664; see also 18 U.S.C. § 3663. Financial acumen is one factor in determining a defendant's ability to pay.See United States v. Schinnell, 80 F.3d 1064, 1072 (5th Cir. 1996). Under Section 3664, the petitioner has the burden of demonstrating that he lacks the financial resources to comply with a restitution order. See 18 U.S.C. § 3664 (d), (e);United States v. Rochester, 898 F.2d 971, 982 (5th Cir. 1990). The United States Court of Appeals for the Fifth Circuit has determined that a "defendant's indigency at the time restitution is ordered is not a bar to the requirement of restitution."Schinnell, 80 F.3d at 1072; see also United States v. Ryan, 874 F.2d 1052, 1054 (5th Cir. 1989). The Fifth Circuit has held also that district courts have broad discretion in ordering restitution. See Ryan, 874 F.2d at 1054. Where the Presentence Investigation Report ("PSI") covers all of the requisite factors and there is no indication to believe that the Court intentionally refused to consider any of them, the district court's decision will be upheld. See United States v. Hull, 160 F.3d 265, 271 (5th Cir. 1998); United States v. Greer, 137 F.3d 247, 252 (5th Cir. 1998) (concluding that district court's decision to adopt the findings of fact in the PSI, which included many references to the defendant's financial status was sufficient to determine the defendant's ability to pay);Schinnell, 80 F.3d at 107 1-72 (determining that district court structured its order to enhance the defendant's ability to comply with its terms). Under Section 3664(k), however, a court may accept a notification of a material change in the defendant's economic circumstances that might affect petitioner's ability to pay restitution. 18 U.S.C. § 3664 (k).
Here, petitioner fails to prove that this Court improperly ordered restitution in the amount of $100,000.00. In the instant dispute, this Court considered all of the mandatory factors necessary to arrive at the restitution order, including petitioner's financial resources and ability to pay. In making its determination, this Court adopted the findings of the PSI prepared by the Probation Department, resolving petitioner's objections to the calculation of loss. The PSI sufficiently established petitioner's financial resources and ability to pay. The PSI established that petitioner was incarcerated and had no source of income at the time of sentencing. See PSI at 35. Moreover, the PSI stated that petitioner had no assets or liabilities and that his mortgage was foreclosed as a result of his inability to pay the house note. See id. Further, the PSI also established that petitioner had been ordered recently by Judge Beer to pay restitution in the amount of $12,000.00. See id. at 32-3. Thus, this Court was fully aware of the petitioner's financial condition at the time of sentencing. In light of the information in the PSI, this Court ordered less than full restitution. See Statement of Reasons for Imposing Sentence at 3 (reasoning that full restitution could not be awarded because "[t]he defendant has insufficient assets.").
In addition to the above considerations, this Court also relied on the PSI in considering petitioner's potential to pay in the future. See PSI at 35. As compared to the defendant in Schinnell, the petitioner in the instant dispute has considerable financial acumen. Petitioner indicated that he had interests in businesses for "most of his life." See PSI at 35. In fact, the PSI indicated that he started, owned and co-owned a number of businesses.See id. Also, he earned a Graduate Equivalency Diploma ("GED"). See id. Even if Riggio is not allowed to participate in any form of business that he was involved in running prior to his incarceration, he is not barred from engaging in other lawful business ventures in the future. In light of the above background information, the Court is not convinced he will be unable to find gainful employment. Finally, petitioner fails to bring forth any evidence to support his statement that he will not be able to secure financial assistance from his sister at this time or in the future. Thus, the Court cannot find that petitioner will be unable to pay restitution in the future.
Finally, Riggio does not establish that his economic circumstances have changed materially such that they affect his ability to pay restitution. The thrust of his argument is that the restitution ordered by Judge Beer was not included as a liability on the PSI, and thus, that restitution order now presents a changed circumstance that is relevant in determining his ability to pay. As indicated above, however, the restitution ordered by Judge Beer was included in the PSI and was considered by this Court in ordering restitution.
Accordingly,
IT IS ORDERED that petitioner's Motion for Modification of Restitution is hereby DENIED.
New Orleans, Louisiana, this 13th day of March, 2000.