NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–9012
_________________
BENJAMIN ROBERS, PETITIONER v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the seventh circuit
[May 5, 2014]
Justice Breyer
delivered the opinion of the Court.
The Mandatory Victims
Restitution Act of 1996 requires certain offenders to restore
property lost by their victims as a result of the crime. 18
U. S. C. §3663A. A provision in the statue says that,
when return of the property lost by the victim is “impossible,
impracticable, or inadequate,” the offender must pay the victim “an
amount equal to . . . the value of the property” less
“the value (as of the date the property is returned) of any part of
the property that is returned.” §3663A(b)(1)(B). The question
before us is whether “any part of the property” is “returned” when
a victim takes title to collateral securing a loan that an offender
fraudulently obtained from the victim.
We hold that it is not.
In our view, the statutory phrase “any part of the property” refers
only to the specific property lost by a victim, which, in the case
of a fraudulently obtained loan, is the money lent. Therefore, no
“part of the property” is “returned” to the victim until the
collateral is sold and the victim receives money from the sale. The
import of our holding is that a sentencing court must reduce the
restitution amount by the amount of money the victim received in
selling the collateral, not the value of the collateral when the
victim received it.
I
The relevant facts,
as simplified, are the following: In 2005 petitioner Benjamin
Robers, acting as a straw buyer, submitted fraudulent loan
applications to two banks. The banks lent Robers about $470,000 for
the purchase of two houses, upon which the banks took mortgages.
When Robers failed to make loan payments, the banks foreclosed on
the mortgages. In 2006 they took title to the two houses. In 2007
they sold one house for about $120,000. Andin 2008 they sold the
other house for about $160,000. The sales took place in a falling
real estate market.
In 2010 Robers was
convicted in federal court of conspiracy to commit wire fraud. See
§§371, 1343. He was sentenced to three years of probation. And the
court ordered him to pay restitution of about $220,000, roughly the
$470,000 the banks lent to Robers less the $280,000 the banks
received from the sale of the two houses (minus certain expenses
incurred in selling them).
On appeal Robers argued
that the sentencing court had miscalculated his restitution
obligation. In his view, “part of the property” was “returned” to
the banks when they took title to the houses. And, since the
statute says that “returned” property shall be valued “as of the
date the property is returned,” the sentencing court should have
reduced the restitution amount by more than $280,000: $280,000 was
what the banks received from the sale of the houses, but since the
banks sold the houses in a falling real estate market, the houses
had been worth more when the banks took title to them.
The Court of Appeals
rejected Robers’ argument. 698 F. 3d 937 (CA7 2012). And,
because different Circuits have come to different conclusions about
this kind of matter, we granted Robers’ petition for certiorari.
Compare id., at 942 (case below) (restitution obligation reduced by
money received from sale of collateral), with United States v.
Yeung, 672 F. 3d 594, 604 (CA9 2012) (restitution obligation
reduced by value of collateral at time lender took title).
II
In our view, the
phrase “any part of the property . . . returned” refers
to the property the banks lost, namely, the money they lent to
Robers, and not to the collateral the banks received, namely, the
two houses. For one thing, that is what the statute says. The
phrase is part of a long sentence that reads as follows:
“(b) The order of
restitution shall require that [the] defendant—
“(1) in the case of an
offense resulting in damage to or loss or destruction of property
of a victim of theoffense—
“(A) return the
property to the owner of the property . . . ; or
“(B) if return of the
property under subparagraph (A) is impossible, impracticable, or
inadequate, pay an amount equal to—
“(i) the greater
of—
“(I) the value of the
property on the date of the damage, loss, or destruction; or
“(II) the value of the
property on the date of sentencing, less
“(ii) the value (as of
the date the property is returned) of any part of the property that
is returned . . . .” §3663A (emphasis added).
The words “the property” appear seven times in
this sentence. If read naturally, they refer to the “property” that
was “damage[d],” “los[t],” or “destr[oyed]” as a result of the
crime. §3663A(b)(1). “Generally, ‘identical words used in different
parts of the same statute are . . . presumed to have the
same meaning.’ ” Merrill Lynch, Pierce, Fenner & Smith
Inc. v. Dabit, 547 U. S. 71, 86 (2006) (quoting IBP, Inc. v.
Alvarez, 546 U. S. 21, 34 (2005) ). And, if the “property” that was
“damage[d],” “los[t],” or “destr[oyed]” was the money, then “the
property . . . returned” must also be the money. Money
being fungible, however, see, e.g., Ransom v. FIA Card Services, N.
A., 562 U. S. ___, ___ (2011) (slip op., at 17); Sabri v.
United States, 541 U. S. 600, 606 (2004) , “the property
. . . returned” need not be the very same bills or
checks.
We concede that
substituting an amount of money, say, $1,000, for the words “the
property” will sometimes seem awkward or unnecessary as, for
example:
“[I]f return of [$1,000] . . .
is impossible, . . . pay an amount equal to
. . . the greater of . . . the value of
[$1,000] on the date of the . . . loss . . . or
. . . the value of [$1,000] on the date of sentencing
. . . .” §3663A(b)(1)(B).
But any such awkwardness or redundancy is the
linguistic price paid for having a single statutory provision that
covers property of many different kinds. The provision is not
awkward as applied to, say, a swindler who obtains jewelry, is
unable to return all of the jewelry, and must then instead pay an
amount equal to the value of all of the jewelry obtained less the
value (as of the date of the return) of any of the jewelry that he
did return. It directs the court to value the returned jewelry as
of the date it was returned and subtract that amount from the value
of all of the jewelry the swindler obtained. As applied to money,
the provision is in part unnecessary but reading the statute
similarly does no harm. And the law does not require legislators to
write extra language specifically exempting, phrase by phrase,
applications in respect to which a portion of a phrase is not
needed.
The natural reading
also facilitates the statute’s administration. Many victims who
lose money but subsequently receive other property (e.g.,
collateral securing a loan) will sell that other property and
receive money from the sale. And often that sale will take place
fairly soon after the victim receives the property. Valuing the
money from the sale is easy. But valuing other property as of the
time it was received may provoke argument, requiring time, expense,
and expert testimony to resolve.
We are not convinced by
Robers’ arguments to the contrary. First, Robers says that, when a
victim has not sold the collateral by the time of sentencing, our
interpretation will lead to unfair results. A sentencing court will
have only two choices, both undesirable. The court will either have
to refuse to award restitution, thereby undercompensating the
victim, or have to require the offender to pay the full amount lent
to him, thereby giving the victim a windfall.
In our view, however,
the dilemma is a false one. Other provisions of the statute allow
the court to avoid an undercompensation or a windfall. Where, for
example, a sale of the collateral is foreseen but has not yet taken
place, the court may postpone determination of the restitution
amount for two to three months after sentencing, thereby providing
the victim with additional time to sell. See §3664(d)(5). Where a
victim receives, say, collateral, but does not intend to sell it,
other provisions of the statute may come into play. Section
3664(f)(2) provides that upon
“determination of the amount of
restitution owed to each victim, the court shall . . .
specify in the restitution order the manner in which, and the
schedule according to which, the restitution is to be paid.”
Section 3664(f)(3)(A) says that a
“restitution order may direct the
defendant to make a single, lump-sum payment, partial payments at
spec-ified intervals, in-kind payments, or a combinationof payments
at specified intervals and in-kindpayments.”
And §3664(f)(4) defines “in-kind payment” as
including “replacement of property.” These provisions would seem to
give a court adequate authority to count, as part of the
restitution paid, the value of collateral previously received but
not sold. Regardless, Robers has not pointed us to any case
suggesting an unfairness problem. And the Government has conceded
that the statute (whether through these or other provisions)
provides room for “credit[s]” against an offender’s restitution
obligation “to prevent double recovery to the victim.” Brief for
United States 30 (emphasis deleted).
Robers also points out,
correctly, that the statute has a proximate cause requirement. See
§3663A(a)(2) (defining “victim” as “a person directly and
proximately harmed as a result of the commission of” the offense
(emphasis added)); §3664(e) (Government bears the “burden of
demon-strating the amount of the loss sustained by a victim as a
result of the offense” (emphasis added)). Cf. Paroline v. United
States, ante, at 6–11. And Robers argues that where, as here, a
victim receives less money from a later sale than the collateral
was worth when received, the market and not the offender is the
proximate cause of the deficiency.
We are not convinced.
The basic question that a proximate cause requirement presents is
“whether the harm alleged has a sufficiently close connection to
the conduct” at issue. Lexmark Int’l, Inc. v. Static Control
Components, Inc., ante, at 14. Here, it does. Fluctuations in
property values are common. Their existence (though not direction
or amount) is foreseeable. And losses in part incurred through a
decline in the value of collateral sold are di-rectly related to an
offender’s having obtained collateralized property through fraud.
That is not to say that an offender is responsible for everything
that reduces the amount of money a victim receives for collateral.
Market fluctuations are normally unlike, say, an unexpected natural
disaster that destroys collateral or a victim’s donation of
collateral or its sale to a friend for a nominal sum—any of which,
as the Government concedes, could break the causal chain. See Tr.
of Oral Arg. 25–27, 38–39, 46, 50–51.
Further, Robers argues
that “principles” of state mortgage law “confirm that the return of
mortgage collateral compensates a lender for its losses.” Brief for
Petitioner 30. But whether the collateral compensates a victim for
its losses is not the question before us. That question is whether
the particular statutory provision at issue here requires that
collateral received be valued at the time the victim received it.
That statutory provision does not purport to track the details of
state mortgage law. Thus, even were we to assume that Robers is
right about the details of state mortgage law, we would not find
them sufficient to change our interpretation.
Finally, Robers invokes
the rule of lenity. To apply this rule, we would have to assume
that we could interpret the statutory provision to help an offender
like Robers, who is hurt when the market for collateral declines,
without harming other offenders, who would be helped when the
market for collateral rises. We cannot find such an interpretation.
Regardless, the rule of lenity applies only if, after using the
usual tools of statutory construction, we are left with a “grievous
ambiguity or uncertainty in the statute.” Muscarello v. United
States, 524 U. S. 125, 139 (1998) (internal quotation marks
omitted). Having come to the end of our analysis, we are left with
no such ambiguity or uncertainty here. The statutory provision
refers to the money lost, not to the collateral received.
* * *
For these reasons,
the judgment of the Court of Appeals is affirmed.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–9012
_________________
BENJAMIN ROBERS, PETITIONER v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the seventh circuit
[May 5, 2014]
Justice Sotomayor,
with whom Justice Ginsburg joins, concurring.
I join the opinion of
the Court. I write separately, however, to clarify that I see its
analysis as applying only in cases where a victim intends to sell
collateral but encounters a reasonable delay in doing so. See ante,
at 5–6 (explaining that where a victim “does not intend to sell”
collateral, “other provisions of the statute may come into play,”
enabling a court “to count, as part of the restitution paid, the
value of collateral previously received but not sold”). If a victim
chooses to hold collateral rather than to reduce it to cash within
a reasonable time, then the victim must bear the risk of any
subsequent decline in the value of the collateral, because the
defendant is not the proximate cause of that decline.
Here, although the
banks did not immediately sell the homes they received as
collateral, Robers did not adequately argue below that their delay
reflected a choice to hold the homes as investments.[
1]* Such an argument would likely have been
fruitless, because the delay appears consistent with a genuine
desire to dispose of the collateral. Real property is not a liquid
asset, which means that converting it to cash often takes time.
See, e.g., 698 F. 3d 937, 947 (CA7 2012) (“[R]eal property is
not liquid and, absent a huge price discount, cannot be sold
immediately”). And indeed, the delays here appear to have
resultedfrom illiquidity. See App. 70 (one of the two homes was
placed on the market but did not immediately sell); id., at 89 (the
other attracted no bids at a foreclosure sale). Because such delays
are foreseeable, it is fair for Robers to bear their cost: the
diminution in the homes’ value. See ante, at 6 (analysis of
proximate causation).
In other cases,
however, a defendant might be able to show that a significant delay
in the sale of collateral evinced the victim’s choice to hold it as
an investment rather than reducing it to cash. Suppose, for
example, that a bank received shares of a public company as
collateral for a fraudulently obtained loan. “Common stock traded
on a national exchange is . . . readily convertible into
cash,” Reves v. Ernst & Young, 494 U. S. 56, 69 (1990) ,
so if the bank waited more than a reasonable time to sell the
shares, a district court could infer that the bank was not really
trying to sell but instead was holding the shares as investment
assets. If the shares declined in value after the bank chose to
hold them, it would be wrong for the court to make the defendant
bear that loss. As the Government acknowledged at oral argument, a
victim’s choice to hold collateral—rather than selling it in a
reasonably expeditious manner—breaks the chain of proximate
causation. See, e.g., Tr. of Oral Arg. 38–39, 44–45. If the
collateral loses value after the victim chooses to hold it, then
that “part of the victim’s net los[s]” is “attributable to” the
victim’s “independent decisions.” Id., at 39. The defendant cannot
be regarded as the “proximate cause” of that part of the loss,
ibid., and so cannot be made to bear it.
In such cases, I would
place on the defendant the burden to show—with evidence specific to
the market at issue—that a victim delayed unreasonably in selling
collateral, manifesting a choice to hold the collateral. See 18
U. S. C. §3664(e) (burden to be allocated “as justice
requires”). Because Robers did not sufficiently argue below that
the banks broke the chain of proximate causation by choosing to
hold the homes as investments, and because the delay encountered by
the banks appears to have been reasonable, it is fair for Robers to
bear the cost of that delay. I therefore join the Court in
affirming the restitution order.
