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United States v. Gossi

June 15, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
NICHOLAS R. GOSSI, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Idaho, William F. Downes, District Judge, Presiding, D.C. No. 1:08-CR-104-S-EJL.

The opinion of the court was delivered by: ALARCÓN, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted February 5, 2010 -- Seattle, Washington

Before: Arthur L. Alaracón, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.

OPINION

Nicholas R. Gossi appeals from a restitution order imposed pursuant to the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, following his guilty plea to Mail Fraud in violation of 18 U.S.C. § 1341. Gossi contends the district court failed "to use the true return date in offsetting the value of [the] returned property." He also maintains that the district court erred in "treat[ing] [him] more harshly than all other co-defendants" and in ordering him to pay restitution more than "[o]nly [i]ntended, [f]oreseeable and [c]ulpable [l]osses." We affirm because we conclude that the district court's valuation of the property was within the discretion afforded district courts. We also hold that the district court correctly ordered Gossi to pay restitution based on losses proximately resulting from his criminal conduct.

I.

On May 14, 2008, a federal grand jury returned a thirty-two count indictment charging Gossi and his four co-defendants with bank fraud. In addition, Gossi was charged with mail fraud and making a false statement of material fact to the Department of Housing and Urban Development ("HUD"). On September 22, 2008, Gossi pled guilty to the count that charged him with mail fraud in violation of 18 U.S.C. § 1341.*fn1

On March 13, 2009, Gossi was sentenced to imprisonment for six months followed by a period of six months home detention. In addition, Gossi was ordered to be placed on supervised release for a period of five years.

The district court entered a restitution order directing Gossi to pay National City Mortgage Company ("NCMC") the amount of $288,087.12. In reaching this amount, the district court explained:

The "Actual Unpaid Principal Balance of the Mortgage Loan," according to [NCMC's] own balance sheet, was actually $704,087.12 at the time it took possession of the property. The Total Realized Loss includes $156,174.71 in fees and expenses accrued after the property was returned. The Court thus finds that $704,087.12 accurately reflects the value of the property taken on the date of loss pursuant to 18 U.S.C. § 3663A(b)(1)(B)(i)(I). The current asking price for the Dublin Drive property does not reflect the value of the property returned, on the date it was returned. The first appraisal apparent to the Court was provided to [NCMC] on November 22, 2008; it placed the value of the property at $416,000 "as is." The Court accordingly imposes upon... Gossi a restitution obligation in the amount of $288,087.12 ($704,087.12 - $416,000.00) pursuant to 18 U.S.C. § 3663A(b)(1)(B).

Gossi has timely appealed from the district court's order. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

Gossi contends that the district court erred in determining the return date of the property for purposes of assessing the value of the property. He asserts that the district court should have assigned value "when the bank could and should have initiated foreclosure" rather than when it actually foreclosed. (Appellant's Br. 10.) According to Gossi, this is when the property should have been considered to be returned, i.e., "when the bank knew the loan was in trouble and had the legal right to initiate [foreclosure] proceedings." (Id. at 11.) Gossi also contends that the district court refused to set an earlier return date because "the restitution calculation of the court was driven, in part, by considerations of fault rather than evidence of property value...." (Id.)

"A restitution order is reviewed for an abuse of discretion, provided that it is within the bounds of the statutory framework. Factual findings supporting an order of restitution are reviewed for clear error. The legality of an order of restitution is reviewed de novo." United States v. Gordon, 393 F.3d 1044, 1051 (9th Cir. 2004) (quoting United States v. Stoddard, 150 F.3d 1140, 1147 (9th Cir. 1998)).

[1] "Federal courts have no inherent power to award restitution, but may do so only pursuant to statutory authority." United States v. Follet, 269 F.3d 996, 998 (9th Cir. 2001) (citing United States v. Hicks, 997 F.2d 594, 600 (9th Cir. 1993)). "The courts have such authority under the Victim and Witness Protection Act of 1982 ("VWPA"), providing for discretionary awards of restitution after conviction for certain crimes, 18 U.S.C. § 3663, and under the Mandatory Victims Restitution Act of 1996 ("MVRA"), providing for mandatory restitution for crimes of violence and property offenses, 18 U.S.C. § 3663A."*fn2 Id.

"[T]he starting point for interpreting a statute is the language of the statute itself." United States v. Hackett, 311 F.3d 989, 991 (9th Cir. 2002) (quoting Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). "Absent congressional direction to the contrary, words in statutes are to be construed according to 'their ordinary, contemporary, common meaning[s].' ...


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