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United States v. Collins

United States Court of Appeals, Eleventh Circuit

April 26, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
TORI K. COLLINS, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:15-cr-00056-WSD-1

          Before MARTIN and JORDAN, Circuit Judges, and COOGLER, [*] District Judge.

          JORDAN, Circuit Judge:

         Tori Collins pled guilty to conspiracy to accept gratuities with the intent to be influenced or rewarded in connection with a bank transaction, in violation of 18 U.S.C. §§ 215 & 371. The district court sentenced Ms. Collins to a two-year term of probation. It also ordered her to pay $251, 860.31 to her former employer, Wells Fargo, pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, finding that her conviction qualified as an "offense against property." Ms. Collins appeals the restitution order, arguing that the MVRA does not apply to her. Ms. Collins also contends that, even if her crime is an "offense against property, " restitution should not have been awarded because her conduct did not proximately cause any losses to Wells Fargo.

         We affirm the district court's order of restitution. Ms. Collins facilitated bank transactions that proximately caused Wells Fargo's losses, and she intended to derive an unlawful benefit from the property that was the subject of these transactions. She therefore committed an "offense against property" as that phrase is understood in its ordinary and contemporary sense.


         Ms. Collins worked as a personal banker at a Wells Fargo branch in Atlanta, Georgia. At some point in early 2013, a man named Gerald Mack visited the branch where Ms. Collins worked. Mr. Mack, who introduced himself as G. Shakir, told Ms. Collins that he had friends and clients who wished to open new bank accounts, so Ms. Collins gave him her business card for referrals. Mr. Mack's story was a lie. In reality, Mr. Mack was in possession of stolen U.S. Treasury checks. His plan was to cash the checks by depositing them in bank accounts and then withdraw the stolen funds, all with the help of bank employees.

         Soon after they met, Mr. Mack and Ms. Collins developed a friendship, and he began to ask her to carry out various bank transactions. Although she knew that the transactions violated bank rules, Ms. Collins did as Mr. Mack requested. She opened accounts under the names of either fictitious persons or the intended recipients of the stolen U.S. Treasury checks. Sometimes she added the payees of the checks to preexisting accounts. She also deposited some of the stolen checks for Mr. Mack and, on the day of the deposits or sometime after, withdrew the stolen funds and took them to him. And she deposited and withdrew funds from accounts that had been opened by Brandon Kelly, another bank employee recruited by Mr. Mack. Once, Ms. Collins handed Mr. Mack the proceeds in the parking lot of the bank. In exchange for her help, Mr. Mack paid Ms. Collins $6, 000 and gave her a pair of sneakers.

         Because Mr. Mack was depositing stolen U.S. Treasury checks, Wells Fargo had to reimburse a number of the intended payees for their losses. All told, Wells Fargo lost $276, 714.71 from the accounts that Ms. Collins opened or from which she facilitated withdrawals.

         Ms. Collins pled guilty to a single charge of conspiracy in violation of § 371. The object of the conspiracy was the payment and acceptance of gratuities in violation of § 215. The elements of a § 371 conspiracy are an agreement among two or more persons to achieve an unlawful objective; knowing and voluntary participation in the agreement; and the commission of an overt act by a conspirator in furtherance of the agreement. See United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). As relevant here, the gratuities provision, § 215(a)(2), prohibits an employee of a financial institution from "corruptly accept[ing] or agree[ing] to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business or transaction of such institution."

         At Ms. Collins' sentencing hearing, the district court addressed the applicability of the MVRA, which among other things requires restitution for an "offense against property." See § 3663A(c)(1)(A)(ii). The district court explained that it had "thought hard about whether" it should look to the elements of the offense or, instead, to the specific facts of the case to determine whether Ms. Collins had committed an "offense against property." See D.E. 26 at 5. Ultimately, the district court decided on a "case-by-case evaluation" of the facts and ruled that the crime fell within the scope of the MVRA because Ms. Collins "was charged with a conspiracy, and that conspiracy was in fact intended to deprive people of property that they owned." Id. At the conclusion of the sentencing hearing, the district court imposed a two-year term of probation and ordered Ms. Collins to pay $251, 860.31 in restitution to Wells Fargo.[1]


         The legality of the district court's restitution order is subject to plenary review. See United States v. Valladares, 544 F.3d 1257, 1269 (11th Cir. 2008). The district court's underlying factual findings, on the other hand, are reviewed for clear error. See id. A federal district court has no inherent authority to order restitution, and may do so only as explicitly empowered by statute. See id.


         The "primary and overarching purpose" of the MVRA, enacted in 1996, is to "make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original state of well-being." United States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006). When the MVRA applies, restitution is mandatory. See United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015). A defendant must pay restitution under the MVRA if she is convicted of a certain covered offense "in which an identifiable victim or victims has suffered a physical injury or pecuniary loss." § 3663A(c)(1)(B). The restitution award must be the full amount of the victim's loss that was actually and proximately caused by the defendant's conduct, regardless of the defendant's current or anticipated ability to pay. See United States v. Huff, 609 F.3d 1240, 1247 (11th Cir. 2010). The MVRA, by its own terms, specifies four types of crimes that trigger mandatory restitution: (1) crimes of violence, as defined in 18 U.S.C. § 16; (2) "offense[s] against property, " including those "committed by fraud or deceit"; (3) offenses related to tampering with consumer products; and (4) offenses relating to theft of medical products. See § 3663A(c)(1)(A).

         Ms. Collins argues that her conviction for conspiring to accept bank gratuities does not constitute an "offense against property" under the MVRA. First, she contends that the district court erred by examining the facts of her case, and urges us to adopt a "categorical approach" which considers only the elements of the offense of conviction. Under that approach, Ms. Collins says, mandatory restitution does not apply because none of the elements of her offense are "against property." Second, Ms. Collins maintains that, even if we consider her underlying conduct, her receipt of cash gratuities was not an "offense against property" and was not committed through fraud or deceit. Third, Ms. Collins argues that, in any event, she did not proximately cause Wells Fargo's losses.


         What, exactly, is an "offense against property" under the MVRA, § 3663A(c)(1)(A)(ii)? That is the question of first ...

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