By Tiffiney Carney, J.D. Candidate

            A pending certiorari petition may actually pique the Supreme Court’s interest later this month. The Violence Against Women Act (VAWA), 18 U.S.C. § 2559, mandates that “in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.”  In Staples v. United States,[1] the Eleventh Circuit held that when petitioner waived his right to appeal his sentence, he also waived his right to appeal the restitution amount awarded to the victim under VAWA.[2]  The holding turned on whether restitution was part of a criminal sentence.  The facts do not lend much sympathy to petitioner, but the circuit split on this issue may work in his favor—at least at this stage.

            Arthur W. Staples III was charged with possession and distribution of child pornography.[3]  Mr. Staples pled guilty to the possession charge in the Southern District of Florida and waived his right to appeal “any sentence imposed, including any restitution order.”[4]  He pled guilty to both charges in the Eastern District of Virginia and waived his right to appeal “any sentence.”[5]  Mr. Staples agreed to transfer the Virginia case to the Southern District of Florida for plea and sentencing.[6]

            The court sentenced Mr. Staples to 210 months in prison followed by supervised release for life.[7]  During a separate restitution hearing, the government presented multiple witnesses to show damages suffered by “Amy.”[8]  “Amy” was approximately nine years old when her uncle produced the sexually explicit photos that Mr. Staples downloaded on his computer.[9] In his testimony, “Amy’s” attorney identified a report containing seven tables prepared by an economist, detailing the lost earnings and health costs for “Amy” through age 81.[10] He also testified that there were 730 cases pending in which people had been charged with offenses involving the pornographic images of “Amy.”[11] He filed claims for restitution in 211 of them.[12] A psychologist also testified, indicating that “Amy” would need life-long weekly therapy, perhaps institutionalization, and alcohol rehabilitation services.[13]

            The court found that restitution was justified for Mr. Staples’ possession of “Amy’s” image.[14]  The court also found that “Amy” was a victim, and she was harmed by the defendant’s act of possession.[15]  The court awarded restitution in the amount of $3,204,353 for lost future wages and benefits through age sixty-seven, and $475,800 for future treatment and counseling through age 81, for a total of $3,680,153.[16]  Mr. Staples then appealed the restitution amount, claiming that his Virginia plea agreement—unlike the Florida agreement signed by the same prosecutor—specifically omitted reference to waiving issues surrounding restitution.  He also argued that the amount was so extraordinary, and ordered without proof of causation, that the court could review it notwithstanding the waiver.[17]

The Eleventh Circuit Opinion

            In a short unreported opinion, the Eleventh Circuit reviewed the validity of the sentence appeal de novowithout turning to Mr. Staples’ causation and excessive award claims.  The court quoted its reasoning in United States v. Howle:[18]

“A waiver of the right to appeal includes a waiver of the right to appeal difficult or debatable legal issues—indeed, it includes a waiver of the right to appeal blatant error . . . . While it may appear unjust to allow criminal defendants to bargain away meritorious appeals, such is the necessary consequence of a system in which the right to appeal may be freely traded.”[19]

Further, the court emphasized that “appeal waivers are valid as long as the defendant knowingly and voluntarily agrees.”[20]  This waiver occurs when the government can demonstrate either “(1) the district court specifically questioned the defendant about the waiver during the plea colloquy, or (2) the record clearly shows that the defendant otherwise understood the full significant of the waiver.”[21]  The court concluded that “[b]ecause . . . restitution is included as part of the phrase ‘any sentence,’ in the Virginia plea agreement, the waiver applies.”[22]

Mr. Staples’ Petition for Certiorari

            Mr. Staples argues that the Supreme Court should grant his petition because (1) there is a deep split in the circuits on the issue of whether restitution is part of a criminal sentence; (2) the Eleventh Circuit incorrectly found that his waiver of “any sentence” included a waiver of the restitution order, and it should have decided the legality of the award; and (3) the question presented is of substantial and recurring importance.[23]

            In its reply, the government admits that “courts of appeals have differed on the scope of appeal waivers covering ‘any sentence.’”[24] Yet, the government claims that each case turned on the specific language of the plea agreement, arguing that courts must review plea agreements in accordance to contract law (instead of, say, criminal law).[25]  Accordingly, the government contends that Mr. Staples’ Virginia plea agreement contemplated restitution as part of the sentence, barring him from appealing the restitution award.

A (Double) Circuit Split

            The Supreme Court does not always give reasons for granting cert petitions; yet, most agree that the Court pays close attention to circuit splits.  Fortunately for Mr. Staples, the split regarding the nature of restitution seems fairly straightforward.  The Seventh, Eighth, and Tenth Circuit have characterized restitution as a way to make victims whole, not criminally punish a defendant.[26] The First, Second, Third, Fourth, Sixth, and Ninth Circuit have characterized restitution as part of a criminal sanction.[27]

            Further, the circuits are divided on whether a waiver of the right to appeal a sentence also includes a waiver of the right to appeal a restitution award. While one may think this sub-issue turns on the nature of restitution, the circuit split looks slightly different. For instance, the First, Fifth, and Tenth Circuits have refused to decide the waiver issue.[28] The Second, Seventh, Eighth, and Ninth Circuits have allowed appeals of restitution orders despite a waiver of a sentence appeal.[29] And, finally, the Third, Fourth, Sixth, and Eleventh Circuits have held that a general waiver includes the waiver of the right to appeal restitution orders.[30]

            In other words, some circuits, i.e. the First and Fifth, have found that restitution is part of a criminal sanction but have avoided deciding whether that matters with regards to waiving appeals.  Other circuits, i.e. the Third, Fourth, and Eleventh, have been more consistent, finding that restitution is a criminal sanction and, therefore, is included within a defendant’s waiver to appeal his/her sentence. The Seventh and Eighth Circuits have also been consistent, holding that restitution isnot part of a criminal sentence and, therefore, is notincluded within a defendant’s waiver to appeal his/her sentence.  The biggest outlier may be the Second Circuit, which has held that restitution is a criminal punishment; however, when a defendant waives his right to appeal “any sentence,” he does not waive his right to appeal a restitution order.

Restitution Issues Left Unanswered

            In addition to highlighting the circuit splits, Mr. Staples argues that the government failed to prove a nexus between “Amy’s” injuries and Mr. Staples’ act of downloading her picture, and therefore the restitution order should not stand. Further, he argues that even if he did waive his right to appeal restitution, a $3 million award is “shocking” and excessive.  These issues in other “Amy’s” cases have garnered more attention than the general waiver issue.[31] Yet, in its three-page opinion, the Eleventh Circuit never reached the merits of Mr. Staples’ additional claims. 

           If the Supreme Court does grant certiorari in this case, it will probably only determine whether the Eleventh Circuit correctly held that the restitution order was part of “any sentence” in Mr. Staples’ Virginia plea agreement, leaving open the issue of whether the government must prove causation to award victims restitution awards and whether it makes sense to order a defendant to pay more than he is capable.

           Mr. Staples’ restitution questions will not be the only ones left unanswered. Many commentators, lawyers, and courts have considered whether ordering restitution many months after a sentence violates the Sixth Amendment,[32] and whether a district court may order restitution even when the payment will never reach the actual victim.[33] While these legal quandaries remain hot topics in blogs and journal articles, the Supreme Court has the opportunity to address at least one of them in the near future. It will be interesting to see if it chooses to.