from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:15-cr-00056-WSD-1
MARTIN and JORDAN, Circuit Judges, and COOGLER, [*] District Judge.
JORDAN, Circuit Judge:
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.
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.
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.
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
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
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."
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
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.
"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
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.
exactly, is an "offense against property" under the
MVRA, § 3663A(c)(1)(A)(ii)? That is the question of