JESSIE MAE STONE, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7022

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit

   Brief For The United States

                             OPINION BELOW

   The judgment of the court of appeals (Pet. App. A2) is noted at 896
F.2d 558 (Table).

                             JURISDICTION

   The judgment of the court of appeals was entered January 26, 1990.
A petition for rehearing was denied March 5, 1990 (Pet. App. A1).  The
petition for a writ of certiorari was filed March 26, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether petitioner, who pleaded guilty to a single count of mail
fraud in violation of 18 U.S.C. 1341, can be ordered to pay
restitution under the Victim and Witness Protection Act of 1982, 18
U.S.C. 3579 (1982 & Supp. IV 1986), for losses caused by all acts
pursuant to the entire scheme of mail fraud.

                               STATEMENT

   1. On March 21, 1989, petitioner was indicted along with nine other
individuals in a 103-count indictment returned in the Middle District
of Alabama.  Count 1 of the indictment charged the 10 defendants with
a conspiracy between April 1985 and January 1987 to commit mail fraud
by fraudulently applying for credit cards from various issuers and
then using those credit cards to obtain property in an amount alleged
to be in excess of $25,000.  Petitioner also was separately charged
with 25 specific offenses connected with the conspiracy:  12 counts of
mail fraud (Counts 79-90), in violation of 18 U.S.C. 1341, and 13
counts of fraudulent use of social security numbers (Counts 91-103),
in violation of 42 U.S.C. 408(g)(2).  Counts 79-90 charged petitioner
with a mail fraud scheme to submit fraudulent credit-card applications
to various issuers:  Counts 79-86 charged petitioner alone with a
scheme to defraud using the mails between about April 5, 1985, and
August 21, 1986, involving eight credit-card applications to six
issuers;  Counts 87-90 charged petitioner and her mother with
employing the same scheme to defraud using the mails between about May
27, 1985, and about November 14, 1986, involving four credit-card
applications to two issuers.  The 13 counts charging fraudulent use of
social security numbers (Counts 91-103) involved the same 12
credit-card applications as the mail fraud counts, plus one additional
fraudulent application (Count 103).  Gov't C.A. Br. 1-2;  C.A. R.E.
1-9, 46-53;  App., infra, 1a-6a.

   2. Petitioner pleaded guilty to one count of mail fraud (Count 81)
in violation of 18 U.S.C. 1341.  That count recited petitioner's
fraudulent application for a credit card issued by Amoco Oil Co. as an
act committed as part of a broader scheme of mail fraud.  /1/ She was
sentenced to two years' imprisonment, with all but six months
suspended on the condition of five years' probation, and was ordered
to pay restitution of $12,390.85.  Gov't C.A. Br. 1-2.

   The district court ordered that the restitution be paid as follows:
 $4,996.89 to Amoco Oil Co., $4,261.00 to Citgo Corp., $331.50 to
Parisian Department Store, $484.00 to J.C. Penney Co., and $2,317.46
to Crown Petroleum Corp.  Gov't C.A. Br. 3.  This order included all
the losses that the government was able to document as associated with
the mail fraud scheme encompassed by Counts 79-90, but did not include
the losses attributable to the additional credit-card application
involved in Count 103, nor did it include any other losses associated
with the Count 1 conspiracy offense with which petitioner was charged.

   3. On appeal, petitioner argued that it was improper for the
district court to order restitution for any losses except those
resulting from the submission of the one Amoco credit-card application
recited in Count 81 -- the count to which she pleaded guilty.  Pet.
C.A. Br. 5.  The government argued that, because the offense to which
petitioner pleaded guilty involved a scheme to defraud, the Victim and
Witness Protection Act of 1982 (now codified at 18 U.S.C. 3663, et
seq.) authorized the court to order restitution that included all
losses associated with the scheme alleged in the count to which
petitioner pleaded guilty.  Gov't C.A. Br. 6-7.  The court of appeals
affirmed without opinion.  Pet. App. A2.

                               ARGUMENT

   Petitioner renews her argument (Pet. 2-3) that the district court's
restitution order cannot extend beyond the losses associated with the
single credit-card application recited in the count to which she
pleaded guilty.  That argument should be rejected.  The order of
restitution was consistent with a strict limitation of restitution
orders to losses caused by the specific conduct that is the basis of
the offense of conviction.  The courts of appeals that have previously
addressed this question agree with the result reached by the court of
appeals in this case, and, in our view, this Court's recent decision
in Hughey v. United States, No. 89-5691 (U.S. May 21, 1990), is not
inconsistent with that result.

   In Hughey, supra, the Court held that a restitution order under the
Victim and Witness Protection Act (VWPA), 18 U.S.C. 3579, 3580 (1982 &
Supp. IV 1986) (recodified at 18 U.S.C. 3663, 3664), is authorized
only for the loss caused by the specific conduct that is the basis of
the offense of conviction.  In that case, the defendant pleaded guilty
to a single incident of unauthorized use of a specific credit card, in
violation of 18 U.S.C. 1029(a)(2) (Supp. II 1984).  See Slip op. 2;
Gov't Br., No. 89-5691, 3-4.  As we noted in our brief in Hughey, the
case did not "present the question of defining the victim or victims
of the offense where a defendant is convicted (by plea or otherwise)
of a count charging a conspiracy or scheme encompassing a course of
conduct." Br. 14 n.12.  Specifically, Hughey did not involve an
offense like the offense of mail fraud at issue in this case, where a
scheme to defraud is one of the elements of the offense charged.  /2/
A defendant who pleads guilty to a count charging such an offense
necessarily admits to participation in the scheme alleged in the
count.

   Courts of appeals have previously held that a guilty plea to an
offense that has as an element a scheme to defraud authorizes an order
of restitution for losses caused by the entire scheme.  See Phillips
v. United States, 679 F.2d 192, 196 (9th Cir. 1982) (in cases
involving mail fraud, "'offense' includes the fraudulent scheme
alleged as an element of the offense and restitution may be ordered in
an amount caused by the entire scheme rather than only in the amount
caused by a particular mailing");  United States v. Pomazi, 851 F.2d
244, 249-250 (9th Cir. 1988) ("The 'offense' (defendant) was charged
with was 'mail fraud' under 18 U.S.C. 1341, which encompasses '(a)
scheme or artifice to defraud, (and to) obtain money . . . by means of
false or fraudulent pretenses, representations, or promises.'"
Therefore, "when the crime charged involves a scheme to defraud, a
sentencing court may order restitution paid to victims of the entire
scheme").  See also United States v. Davies, 683 F.2d 1052, 1055 (7th
Cir. 1982);  United States v. Miller, 900 F.2d 919, 923 (6th Cir.
1990);  United States v. Woods, 775 F.2d 82, 88 (3d Cir. 1985).
Although these cases were decided before the decision in Hughey, we
believe that they are consistent with this Court's decision in that
case.

   Here, not only does the underlying offense of mail fraud contain as
a statutory element the perpetration of a scheme, but the indictment
itself alleges the conduct specified in Count 81 -- the fraudulent
application for an Amoco credit card -- as part of a broader scheme.
See App, infra, 1a-3a.  By pleading guilty to Count 81, petitioner
necessarily admitted to a scheme encompassing the filing of numerous
fraudulent credit-card applications, and thus the district court did
not exceed its authority under the VWPA and this Court's decision in
Hughey by ordering restitution in an amount greater than the loss
attributable to the single credit card application to Amoco.

   In our view, therefore, the only question remaining in this case is
the scope of the scheme to which petitioner admitted by pleading
guilty to Count 81.  The issue arises because of the way in which the
indictment was structured:  the charges stemming from activities
carried out by petitioner alone were grouped separately from the
charges arising from activities carried out jointly by petitioner and
her mother.  However, the restitution order included losses resulting
from both groups of offenses.  /3/ Arguably, both sets of charges
could be regarded as belonging to a single overarching scheme -- the
same scheme to which petitioner pleaded guilty when she pleaded to
Count 81.  If all the applications for all the credit cards
encompassed by the restitution order were regarded as part of that
scheme, the restitution order would be proper.  Alternatively, it
could be argued that each scheme was separate, and that petitioner
only pleaded guilty to a scheme that included Counts 79-86, which were
charged as a group in the indictment.  In all events, we believe that
this question is one that should be resolved below in the first
instance, and that the judgment should therefore be vacated and
remanded for a reconsideration of the restitution order.

                              CONCLUSION

   The petition for a writ of certiorari should be granted, the
judgment below vacated, and the case remanded for further proceedings
consistent with this Court's decision in Hughey v. United States,
supra.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   RICHARD A. FRIEDMAN

      Attorney

   JUNE 1990

   /1/ See C.A. R.E. 46-48, attached at App., infra, 1a-3a.  The count
to which petitioner pleaded guilty was one of eight, (Counts 79-86),
grouped together in the indictment.  Under the heading "Counts
LXXIX-LXXXVI," the indictment stated that

      During the period from on or about the 5th day of April, 1985,
      to on or about the 21st day of August, 1986, in the Middle
      District of Alabama, (petitioner) devised and intended to devise
      a scheme and artifice to defraud and to obtain money and
      property by means of false and fraudulent pretenses * * *

which consisted of obtaining "credit card applications from certain
businesses" by attempting to "conceal her true identity and true
credit history by providing false and misleading information on the
credit card application." App., infra, 1a.  The indictment further
stated that, on or about specified dates, "for the purpose of
executing the aforesaid scheme and artifice to defraud, * * *
(petitioner) knowingly caused to be placed in an authorized depository
for mail matter * * * application(s) for credit" described in an
appended table, "all in violation of Title 18, United States Code,
Section 1341." App., infra, 2a-3a.  For each of Counts 79-86, the
table listed the date of the application, the name of the applicant,
the false social security number, the false employment and credit
reference, and the vendor to which the application was submitted.
Count 81, to which petitioner pleaded guilty, listed this information
for an application to Amoco Oil Company for Jessie Flowers on August
13, 1985.

   The indictment also listed four additional counts (87-90) involving
credit card applications submitted by petitioner in conjunction with
her mother, Eloise Flowers Witcher.  App, infra, 4a-6a.  The
indictment once again described the scheme to defraud under the
heading "Counts LXXXVII-XC" (see App, infra, 4a-5a), and attached a
chart with identifying details of the four separate credit card
applications.  App., infra, 6a.

   /2/ 18 U.S.C. 1341 punishes anyone who

      having devised or intending to devise any scheme or artifice to
      defraud, or for obtaining money or property by means of false or
      fraudulent pretenses, representations, or promises, * * * for
      the purpose of executing such scheme or artifice or attempting
      so to do, places in any post office or authorized depository for
      mail matter, any matter or thing whatever to be sent or
      delivered by the Postal Service.

   /3/ The restitution order included losses attributable to the
credit cards identified in Counts 87-90 (which charged both petitioner
and her mother), as well as losses attributable to Counts 79-86 (which
charged petitioner only).  The slight difference in the approximate
dates given for the scheme in Counts 79-86 and in Counts 87-90 merely
reflected the different dates of the first and last credit-card
applications submitted in each grouping of charges.

   APPENDIX