FRASIEL L. HUGHEY, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-5691

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Fifth Circuit

   Brief For The United States

            TABLE OF CONTENTS
   Question presented
   Opinion below
   Jurisdiction
   Statutory provisions involved
   Statement
   Summary of argument
   Argument:
       I. The Victim and Witness Protection Act authorizes
          an order of restitution in an amount in excess
          of the loss to the victim caused by the offense
          of conviction
          A. The language and structure of the VWPA
             do not limit restitution to losses flowing from
             conduct underlying the offense of conviction
          B. Judicial authority under the VWPA to look
             beyond the particular count of conviction in
             fixing restitution is consistent with the nature
             of restitution as a penal sanction and
             with the courts' customary flexibility to fix
             the terms of a sentence
      II. A sentence of restitution for losses caused by
          acts other than the offense of conviction does
          not violate the Constitution
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals (J.A. 86-110) is reported at
877 F.2d 1256.

                             JURISDICTION

   The judgment of the court of appeals was entered on July 27, 1989.
The petition for a writ of certiorari was filed on September 25, 1989,
and granted on January 8, 1990.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                     STATUTORY PROVISIONS INVOLVED

   At the time of petitioner's October 1985 offense, the Victim and
Witness Protection Act of 1982, 18 U.S.C. 3579, 3580 (1982), provided
in part as follows:  /1/

         Section 3579.  Order of restitution

         (a)(1) The court, when sentencing a defendant convicted of an
      offense under this title * * * may order, in addition to or in
      lieu of any other penalty authorized by law, that the defendant
      make restitution to any victim of the offense.  /2/

         (2) If the court does not order restitution, or orders only
      partial restitution, under this section, the court shall state
      on the record the reasons therefor.

                      * * * * *

         (d) The court shall impose an order of restitution to the
      extent that such order is as fair as possible to the victim and
      the imposition of such order will not unduly complicate or
      prolong the sentencing process.

                      * * * * *

         Section 3580.  Procedure for issuing order of restitution

         (a) The court, in determining whether to order restitution
      under section 3579 of this title and the amount of such
      restitution, shall consider the amount of the loss sustained by
      any victim as a result of the offense, * * * and such other
      factors as the court deems appropriate.

                      * * * * *

         (d) Any dispute as to the proper amount or type of
      restitution shall be resolved by the court by the preponderance
      of the evidence.  The burden of demonstrating the amount of the
      loss sustained by a victim as a result of the offense shall be
      on the attorney for the Government.  The burden of demonstrating
      the financial resources of the defendant and the financial needs
      of the defendant and such defendant's dependents shall be on the
      defendant.  The burden of demonstrating such other matters as
      the court deems appropriate shall be upon the party designated
      by the court as justice requires.

                          QUESTION PRESENTED

   Whether the Victim and Witness Protection Act permits an order of
restitution in an amount greater than the loss to the victim caused by
the conduct underlying the offense of conviction.

                               STATEMENT

   1. Petitioner Frasiel L. Hughey was employed by the United States
Postal Service in San Antonio, Texas.  Between June and December 1985,
petitioner and two co-conspirators, Clarence Eugene Thompson and
Thomas Edward Beatty, Jr., perpetrated a scheme to steal, distribute,
and misuse credit cards that had been returned to the San Antonio post
office as undelivered mail.  J.A. 54-55.  In connection with that
scheme, a second superseding indictment returned in the Western
District of Texas charged petitioner with three counts of theft by a
postal employee, in violation of 18 U.S.C. 1709 (1982), and with three
counts of use of unauthorized credit cards, in violation of 18 U.S.C.
1029(a)(2) (Supp. II 1984).  /3/ J.A. 3-6.  Petitioner pleaded guilty
to the fourth count of that indictment, which charged (J.A. 4-5):  /4/

         That on or about October 18, 1985, in the Western District of
      Texas, and elsewhere, Defendant, did knowingly and with intent
      to defraud use an unauthorized access device, to-wit:  MBank
      Mastercard Credit Card Number 5417-1260-0013-9427, issued to
      Hershey Godfrey, 504 Cypress, Cosby, Texas 77532, and by such
      conduct did obtain things of value aggregating more than
      $1,000.00, such offense affecting interstate commerce, in
      violation of Title 18, United States Code, Section 1029(a)(2).

On April 6, 1987, petitioner was sentenced to eight years'
imprisonment, /5/ and ordered to pay restitution to MBank USA in the
amount of $90,431, to be paid within five years after the end of the
term of imprisonment.  That restitution was assessed "jointly and
severally with all other defendants related in this offense." J.A. 78.
 /6/ The sentence was affirmed on appeal.

   2. Petitioner's plea agreement (J.A. 7-8) did not mention
restitution or any other aspect of sentencing.  Petitioner agreed to
plead guilty to one count of use of an unauthorized credit card;  the
government, for its part, agreed (a) to dismiss the remaining counts
and previous indictments and complaint, and (b) not to prosecute
petitioner "for any other offense arising in the Western District of
Texas as part of the scheme alleged in the indictment." J.A. 7.

   At his arraignment, petitioner was advised that "in addition to any
term of imprisonment or fine imposed by the Court for the offense to
which you are pleading guilty, you may be required to make restitution
in the form of money for any property loss suffered by the victim as a
result of this offense." J.A. 9.  Admitting his guilt on the count to
which he pleaded, petitioner specifically declined to acknowledge,
respond, or admit to anything other than the facts pertaining to that
count.  J.A. 11.

   The government had evidence indicating that petitioner had stolen
approximately 30 credit cards from the post office as part of his
criminal scheme and that the losses to the issuing financial
institutions from unauthorized use of those credit cards totalled
$147,646.89;  /7/ as a result, this amount was initially proposed by
the government as appropriate restitution.  J.A. 12, 18, 21, 23.
Petitioner thereupon filed a motion and memorandum interposing several
objections.  J.A. 12-20.  He conceded restitution liability only for
the single $1055.19 transaction that he understood to be the basis of
the count to which he pleaded guilty.  J.A. 13, 18.  He argued that
(1) the previously entered restitution order against his
co-conspirator in the criminal scheme foreclosed a separate order of
restitution against him;  (2) his indigence rendered restitution
inappropriate;  (3) the scope of restitution sought by the government
was unauthorized by the Victim and Witness Protection Act of 1982
(VWPA);  (4) the government had failed to prove that he was
responsible for the losses;  and (5) compensation received by the
issuing financial institutions from insurance or cardholder
deductibles should be subtracted from any proposed restitution amount.
 J.A. 16-19.  /8/

   3. Prior to the sentencing hearing, the government decided to
reduce its restitution request to encompass only losses sustained by
MBank USA -- the financial institution that issued the Godfrey credit
card -- as a result of petitioner's use of and trafficking in the
stolen MBank credit cards.  The court accepted into evidence a
stipulation between the government and petitioner summarizing the
testimony the government was prepared to offer to support the proposed
restitution order.  That stipulation identified 21 credit cards stolen
by petitioner that were issued by MBank and listed the losses to MBank
occasioned by the unauthorized use of each card -- losses totalling
$90,431.  J.A. 53-57.  Both in the stipulation itself and throughout
the course of the sentencing proceeding, petitioner agreed that the
stipulation, which was accepted in lieu of actual testimony,
summarized the government's evidence bearing on his responsibility for
the entire $90,431.  However, he attacked the stipulated evidence as
insufficient under the preponderance-of-evidence standard to
demonstrate that his actions had given rise to that amount of loss
J.A. 32-33, 71-72.  Petitioner also stated that he was not admitting
to any fact contained in the stipulation.  J.A. 29, 57.

   At the sentencing hearing, petitioner departed from his position
that restitution liability extended only to the losses caused by a
single credit card transaction.  He suggested, as a compromise figure,
that restitution be ordered for the total of $10,412 in losses to
MBank caused by all misuses of the Godfrey credit card, thereby
implicitly acknowledging his willingness to accept responsibility for
these losses.  J.A. 32, 47.  In a subsequent written submission,
petitioner recognized that his proposed restitution order of $10,412
extended "beyond the transaction of conviction," but defended it as
lawful and appropriate under the circumstances.  J.A. 68-69.  After
considering the stipulation, the parties' contentions, and information
as to petitioner's financial status, the district court sentenced
petitioner to pay MBank USA $90,431 within five years after the end of
his eight-year term of imprisonment.  J.A. 78.

   4. Petitioner did not appeal from his conviction.  Instead, he
filed a motion under Fed. R. Crim. P. 35 to reduce and correct his
sentence, arguing that the district court exceeded its authority under
the VWPA in ordering restitution in any amount greater than the amount
of loss caused by charges on the Godfrey credit card referred to in
the sole count of the indictment to which he had pleaded guilty.  J.A.
80-81.  In denying that motion, J.A. 82-85, the district court ruled
that it was authorized by the VWPA to order restitution "in excess of
the amount indicated by the count to which the guilty plea was
entered." J.A. 83.  The court found that the stipulation of testimony
was sufficient to show by a preponderance of the evidence that MBank
suffered $90,431 in losses by virtue of petitioner's theft and
distribution of various MBank credit cards.  Ibid.  The court also
ruled that, to the extent its restitution authority might be limited
to losses resulting from a single criminal scheme involving the count
to which petitioner pleaded guilty, all losses encompassed by the
restitution order were the result of such a scheme.  J.A. 84.  /9/

   5. On appeal, the Court of Appeals for the Fifth Circuit affirmed.
J.A. 86-110.  The court interpreted the VWPA to permit restitution for
losses caused by petitioner's entire course of trafficking and use of
unauthorized MBank credit cards.  It adopted the view that the VWPA
permits a sentencing court to require restitution beyond the count of
conviction when a significant connection exists between the crime of
conviction and similar acts causing losses to the victim.  J.A.
97-100.  The court found support for this holding in the text,
legislative history, and purposes of the restitution provisions of the
VWPA, as well as in decisions of other courts of appeals.  The court
observed that the meaning of the term "offense" in Section 3579(a)(1)
of the VWPA, which authorizes courts to order restitution to any
"victim of the offense," was "ambiguous." The court concluded that by
directing courts, "in determining the amount of * * * restitution," to
consider "such other factors as the court deems appropriate," 18
U.S.C. 3580(a) (1982), Congress had "obviously give(n) a sentencing
court some discretion in determining the proper restitutive amount."
J.A. 93.  /10/ The court contrasted the VWPA's language with the more
"limiting language" (J.A. 94) of the previously enacted Federal
Probation Act (FPA), 18 U.S.C. 3651 (1982), which provided that a
defendant, as a condition of probation, could be required to make
restitution "to aggrieved parties for . . . loss caused by the offense
for which conviction was had." See J.A. 94 (quoting 18 U.S.C. 3651
(1982)).  After reviewing the holdings of some courts of appeals that
interpreted the FPA as limiting restitution to the amount attributable
to the offense of conviction, the court stated (J.A. 95):

      Congress must have been aware that such a limitation was placed
      on the FPA by some courts.  Given the absence of any limiting
      language in the VWPA, it is reasonable to infer that Congress
      did not intend to limit victim compensation to the amount
      specified in the indictment.

   The court also pointed to legislative history indicating that
Congress designed the Act to ensure that wrongdoers "make their
victims whole." See J.A. 95-96 (citing S. Rep. No. 532, 97th Cong., 2d
Sess. 30 (1982)).  Congress's generous compensatory purposes would be
frustrated, the court asserted, by a rule that tied the amount of
restitution to "a prosecutor's decision regarding the number of counts
with which to charge a defendant," which is ordinarily controlled by
factors having "little or nothing" to do with the objective of victim
compensation.  J.A. 96.  In addition, the court observed that "given
the high levels of plea bargaining within our criminal system," a rule
limiting restitution under the VWPA to the count of conviction would
mean that "in the majority of cases a victim could not be made whole."
Ibid.  In light of Congress's "stated intent of providing for the full
restitution of victims," the court concluded, the statute should not
be interpreted so as to be "rendered substantially nugatory through
plea bargaining." J.A. 96-97.

   The court of appeals disagreed with petitioner's contention that
the district court had imposed "criminal responsibility" for all
conduct that formed the basis of the restitution order, and had done
so without making the necessary finding of proof beyond a reasonable
doubt.  J.A. 105-107.  The restitution order was, rather, a penalty
for the offense to which petitioner pleaded guilty:  it did not
constitute an independent assessment of petitioner's criminal
liability for other offenses.  The statutory standard of proof by a
preponderance of the evidence (Section 3580(d)), which was appropriate
to the determination of both the fact and amount of injury underlying
the restitution order, was met in this case.  Finally, the court held
that petitioner had been afforded all appropriate procedural steps
leading to the restitution order and was not unfairly surprised as to
the scope of restitution.  /11/

                          SUMMARY OF ARGUMENT

   1. The Victim and Witness Protection Act requires that an order of
restitution be limited to losses suffered by a victim of the offense
of conviction, but it does not limit the amount of the order to the
losses caused by the specific conduct that is the basis of the offense
of conviction.

   a. None of the statutory language relied on by the petitioner
imposes such a limitation.  To the contrary, the Act clearly leaves
room for the court, in fixing the penalty of restitution, to consider
other losses suffered by the victim as a result of the defendant's
conduct.  Indeed, the statute as a whole evinces an inclusive,
flexible approach to restitution orders that places a high priority on
full and fair compensation to the victim for the harm done by the
defendant.  A strict "offense of conviction" standard would seriously
undermine this approach, especially in the context of a system, like
ours, in which plea bargaining plays an important role in the
administration of criminal justice.

   b. The existence of judicial discretion to look beyond the offense
of conviction in ordering restitution is supported not only by the
text of the VWPA but by two important aspects of the background
against which the statute was enacted.  First, such discretion is
fully consistent with the common law understanding of restitution as a
penal sanction and with the traditional scope of penal restitution
orders.  Second, discretion in shaping the scope of restitution is
simply an instance of the customary authority of sentencing judges to
look to facts outside the particular offense of conviction in fixing
the terms of a sentence.

   c. In determining whether a particular order of restitution
represents a permissible exercise of the trial court's sentencing
discretion, the lower courts have properly looked to a number of
factors that bear on both fairness to the victim and the penological
purposes of restitution.  In the present case, given the close
relation between the offense of conviction and the other conduct that
furnished a basis for the order, as well as the existence of a common
victim and a common scheme, the restitution order did not constitute
an abuse of the district court's discretion.

   2. Nor did the restitution order violate any of petitioner's
constitutional rights.  Since the restitution authorized by the VWPA
is in the nature of a criminal penalty, the Seventh Amendment
guarantee of jury trials in civil cases has no application.  And since
the restitution order is an aspect of the sentence imposed for the
crime of which petitioner was convicted, and not a separate criminal
proceeding, the Sixth Amendment guarantee of jury trial is similarly
inapplicable.  Moreover, the procedural protections provided in the
Federal Rules of Criminal Procedure, and in the VWPA itself, are more
than adequate to satisfy the demands of due process.

                               ARGUMENT

   I. THE VICTIM AND WITNESS PROTECTION ACT AUTHORIZES AN ORDER OF
RESTITUTION IN AN AMOUNT IN EXCESS OF THE LOSS TO THE VICTIM CAUSED BY
THE OFFENSE OF CONVICTION

   The question in this case is whether the VWPA permits judges to
sentence an offender to pay restitution to a victim of the offense in
excess of the amount attributable to the acts underlying the count on
which he is convicted -- which we refer to as the "offense of
conviction." In our view, the court of appeals was correct in
concluding that such a sentence may lawfully be imposed.  An order of
restitution under the VWPA unquestionably is a criminal penalty.  See
pp. 42-43, infra.  The text and history of the VWPA, buttressed by the
background understanding of the nature and scope of restitution
authority, strongly support restitution orders that extend beyond the
offense of conviction, and that advance accepted penological
objectives and the goal of fair compensation of victims.

   No aspect of the VWPA imposes a limitation on the scope of
permissible penal restitution that would call into question the
validity of the restitution order in this case.  Section 3579(a)(1)
provides that "when sentencing a defendant convicted of an offense,"
the court may order "that the defendant make restitution to any victim
of the offense." As petitioner acknowledges, the language of that
Section "unambiguously answers two questions." Pet. Br. 14.  First,
the term "offense," as used in that section, means the offense for
which the defendant is convicted and is being sentenced -- in this
case, the offense of a single unauthorized use of a credit card issued
by MBank.  In authorizing an order of restitution when a court
sentences a defendant "convicted of an offense," Section 3579(a)(1)
indicates that the term "offense" refers to the actual offense for
which the defendant was convicted.  Second, the meaning of the term
"offense" as used in the phrase "convicted of an offense," is the same
as its meaning in the phrase "victim of the offense" in the same
section.  Therefore, "victim of the offense" identifies one who
suffers a loss from the conduct underlying defendant's conviction, and
Section 3579(a)(1) authorizes an order of restitution only to such a
victim.  In this case, MBank is unquestionably a victim of the
"offense of conviction" -- the single use of the Godfrey credit card
"on or about October 18," to which petitioner pleaded guilty in the
fourth count of the indictment.  /12/ But identifying MBank as a
"victim of the offense" no more defines the extent of permissible
restitution than does identifying petitioner as the "defendant" who
may be ordered to pay.

   Petitioner goes to extraordinary lengths (Br. 13-19) to persuade
the Court that the word "offense" in Section 3579(a) refers to the
offense of conviction for which he was sentenced.  We are in complete
agreement:  in this case, the term "offense" in Section 3579(a) refers
solely to the violation of 18 U.S.C. 1029(a)(2) (Supp. II 1984) which
was charged in the fourth count of the indictment and of which
petitioner was convicted.  We part company with petitioner, however,
in his endeavor to show that a limited meaning of the word "offense"
restricts the extent of restitution to the losses directly caused by
the offense of conviction.

   Indeed, petitioner acknowledges (Br. 15) that the language of
Section 3579(a)(1) does not resolve the question of how much
restitution a defendant may be ordered to pay to a victim of the
offense of conviction.  Section 3579(a)(1) supplies a principle of
identification, but sets no further limit on an award:  it is silent
concerning a method for calculating the amount, the factors that might
bear on the magnitude of the penalty, or the judge's discretion to
consider conduct or circumstances beyond the strict limits of the
statutory offense.

   Contrary to petitioner's contentions (Br. 15-17), Sections 3580(a)
and (d) similarly do not limit the amount of restitution to the loss
to the victim occasioned solely by the offense of conviction.  As we
shall show, these provisions clearly leave room for the court, in
fixing the penalty of restitution, to consider other losses suffered
by the victim as a result of the defendant's conduct.  Such discretion
is consistent with other sections of the statute, which unequivocally
express Congress's intent to provide victims with full and fair
compensation for all losses caused by a defendant's conduct.  The
language of various sections of the VWPA evince Congress's desire to
remove artificial limitations on restitution by permitting sentencing
judges to exercise their customary discretion to consider the totality
of circumstances -- including the defendant's entire course of conduct
-- subject only to constitutional limits and the demands of judicial
efficiency.  An examination of the nature and underlying penological
objectives of restitution as a criminal penalty, and of the state law
understanding of restitution, strengthens the conclusion that the VWPA
permits courts to order restitution for losses to the victim that were
caused by conduct outside the specific offense of conviction.

   A. The Language and Structure of the VWPA Do Not Limit Restitution
to Losses Flowing From Conduct Underlying the Offense of Conviction

   1. Apart from Section 3579(a)(1), which authorizes the court to
order restitution to "any victim of the offense," the Act contains
several other sections that bear on the question of how much
restitution may be ordered in a particular case.  None of these
provisions limits the restitution order to the losses flowing from the
offense of conviction.  On the contrary, the language of the
provisions dealing with restitution, taken as a whole, supports the
existence of a broad authority to order restitution beyond the
particular count of conviction.

   Petitioner claims to find the "unambiguous answer" to the question
"how much" in Sections 3580(a) and (d) of the statute.  But these
provisions place no fixed limit on the scope of an order of
restitution.  Section 3580(a) states:

      The court, in determining * * * the amount of such restitution,
      shall consider the amount of the loss sustained by any victim as
      a result of the offense.

And Section 3580(d) states that disputes as to the "amount or type of
restitution" shall be resolved by a preponderance of the evidence, and
that the government shall bear the burden of "demonstrating the amount
of the loss sustained by the victim as a result of the offense." As
petitioner points out (Br. 16), the loss "resulting from the offense"
-- that is, from the actual offense of conviction -- is only one
element of the restitution calculus.  Section 3580(a) also directs the
court to take into account "such other factors as the court deems
appropriate." 18 U.S.C. 3580(a).  And similarly, Section 3580(d)
provides that the "burden of demonstrating such other matters as the
court deems appropriate" -- that is, matters other than the loss
resulting from the offense itself -- "shall be upon the party
designated by the court as justice requires."

   Thus, in authorizing restitution orders under the VWPA, Congress
made provision for judicial consideration of "other factors" and
"other matters." Congress nowhere precluded consideration of the
defendant's conduct surrounding the offense of conviction as an
additional factor that might make a larger restitution order
appropriate.  /13/

   2. Expressions of congressional preference for flexibility and
generosity in providing for restitution are found throughout the
statute.  /14/

   a. As is evident from the statement of findings and purposes of the
VWPA (see 18 U.S.C. 1512 note, Section 2(a) and (b) (1982) (App.,
infra, 5a-6a)), Congress sought through the VWPA to ameliorate the
unresponsiveness of the criminal justice system to the interests and
needs of the victim.  Congress declared that "the Federal Government *
* * has an important leadership role to assume in ensuring that
victims of crime * * * are given proper treatment by agencies
administering the criminal justice system." VWPA Section 2(a)(3).
Through the VWPA, Congress sought "to ensure that the Federal
Government does all that is possible within limits of available
resources to assist victims * * * of crime without infringing on the
constitutional rights of the defendant." VWPA Section 2(b)(2).  There
is no substantial argument that petitioner's constitutional rights
would be impaired by a common sense interpretation giving all
provisions of Section 3580(a) and (d) their full effect.  The
existence of discretion to look beyond the offense of conviction in
ordering restitution under appropriate circumstances -- and with
appropriate procedural safeguards -- comports with well-established
sentencing practice, and presents no constitutional difficulties.  See
pp. 36-38 and 41-46, infra.

   b. Yet another provision of the VWPA expresses Congress's
expectation that a broad range of information would be considered by
the sentencing court in determining the type and amount of
restitution.  Section 3 of the statute enacted new provisions of Fed.
R. Crim. P. 32(c)(2)(C) and (D), which enumerated information to be
included in the presentence report.  The report was to contain "(C)
information concerning any harm, including financial, social,
psychological, and physical harm, done to or loss suffered by any
victim of the offense;  and (D) any other information that may aid the
court in sentencing, including the restitution needs of any victim of
the offense." The evident purpose of this requirement for the
sentencing court was to permit the formulation of an appropriate order
of restitution.  The sweeping language of the rule is notable for the
absence of any indication that information to be gathered should
pertain only to losses resulting from the offense of conviction.  /15/
The rule focuses on the victim's "restitution needs" and the multiple
types of harms actually suffered by a "victim of the offense." It does
not restrict the source of that harm, and is devoid of any directive
to disregard the realities of the defendant's actual conduct toward
the victim.

   c. The inclusive and flexible approach to victim welfare that finds
expression in the contemporaneously enacted provisions governing the
presentence report is also evident in Section 3579(d) of the VWPA
itself, which stated that the court "shall impose an order of
restitution to the extent that such order is as fair as possible to
the victim and the imposition of such order will not unduly complicate
or prolong the sentencing process." /16/ Thus, Section 3579(d)
required the court, in fashioning a restitution order, to give
priority to "fair(ness) * * * to the victim," /17/ subject only to the
interest in forestalling undue complication or prolongation of the
sentencing process.  Together with Section 2(b) of the statement of
findings and purposes, discussed above, this provision establishes
that the maximization of compensation for the victim's losses shall be
limited only by the defendant's rights under the Constitution and the
need to avoid undue cost and delay.  /18/

   d. A strict "offense of conviction" limitation on orders of
restitution cannot be reconciled with the statutory objective of
fairness to victims.  Such a narrow reading would routinely result in
victim undercompensation because the scope of the authority to order
restitution would depend on prosecutorial decisions that are not based
on the victim's interests or on the actual damage to the victim caused
by conduct of the defendant.  The observations of the Tenth Circuit in
United States v. Hill, 798 F.2d 402, 405 (1986), are particularly
illuminating.  In deciding that limiting a victim's recovery under the
VWPA to the amount charged in the court of conviction was "unwarranted
given the compensatory objectives of the VWPA," the court observed:

      The decision of a prosecutor to indict a defendant and the
      manner in which a defendant is indicted have little, if
      anything, to do with objectives of the VWPA.  For instance, a
      prosecutor's decision to charge a defendant for one or more
      counts of an offense is discretionary, and that discretion is
      exercised by taking into consideration law enforcement
      objectives which have nothing to do with the congressional
      objective of compensating crime victims.  The decision to
      specify an amount in the indictment is also often solely for the
      purpose of satisfying jurisdictional requirements.

The exigencies of the criminal justice system, rather than careful
regard for the well-being of victims, tend to drive such prosecutorial
decisions as how to charge an offender or structure an indictment.
Prosecutors may specify only a fraction of the conduct that could form
the basis of criminal charges in order to accommodate the technical
definitions of criminal code offenses, ensure the fulfillment of
jurisdictional requirements for criminal liability, minimize the
difficulty of proving a charge, or avoid distracting juries with too
many facts or multiple counts.

   This case illustrates some of these principles.  The six counts of
the second superseding indictment were based on only a portion of the
unlawful conduct -- even though the government possessed substantial
evidence that petitioner's misfeasance was far more extensive.
Compare J.A. 3-6 (second superseding indictment) with J.A. 53-57
(stipulation of testimony for sentencing).  And the fourth count of
the indictment, which charged only one among several unauthorized uses
of the Godfrey credit card, was clearly structured to ensure technical
compliance with the elements of 18 U.S.C. 1029(a)(2) (Supp. II 1984)
(which requires a gain from the transaction(s) of $1,000 or more), and
to simplify the task of proof.  In attending to these priorities,
however, the interests of MBank in receiving full compensation for
petitioner's credit card fraud were inevitably slighted.

   In cases such as this, where the defendant engaged in an overall
scheme involving small, individual acts of criminal fraud, the
sacrifices of victims' interests that would result from petitioner's
crabbed construction of the VWPA is manifest.  To insure full
restitution even to a single victim, the government would often be
required to charge many counts, and to prove each beyond a reasonable
doubt.  Congress could not have intended to condition full and fair
restitution on such drastic changes in prosecutorial practice.

   In addition, as the Second Circuit stated in United States v.
Berrios, 869 F.2d 25, 30 (1989), "the fact that the vast majority of
criminal cases are concluded by plea bargains" further intensifies
"(t)he apparent conflict between Congress's expressed intent (in the
VWPA) that crime victims be compensated to the maximum extent possible
and the proposition that the charge on which the defendant is
convicted establishes the maximum restitution that may be ordered."
Plea bargaining is "an essential component of the administration of
justice," Santobello v. New York, 404 U.S. 257, 260 (1971), and
accounts for the overwhelming majority of criminal convictions.  See
United States v. Berrios, 869 F.2d at 30 (citing Fed. R. Crim. P. 11
advisory committee note (1974 Amendment) (1968 study estimating that
guilty pleas "account for the disposition of as many as 95% of all
criminal cases")).

   A restrictive view of a court's authority to order restitution
would have two untenable consequences for a system in which plea
bargaining is the principal method for dealing with criminal conduct.
First, the prosecutor would be put to a hard choice -- one clearly not
intended by the VWPA -- of going to trial on a larger number of counts
or sacrificing the interests of victims.  Second, petitioner's rule
would shrink any incentive the defendant might have to plead guilty to
a particular charge, since it would eliminate the defendant's hope of
persuading the judge to reduce the term of incarceration on that
charge by promising to make broad restitution for the "real offense."
Cf. United States v. Hawthorne, 806 F.2d 493, 499-500 (3d Cir. 1986)
(noting that the degree to which restitution was available likely
influenced the district court to give a lighter sentence);  United
States v. Berrios, 869 F.2d at 33 (same);  United States v.
Spambanato, 876 F.2d 5, 7 (2d Cir. 1989) ("as in Berrios, the
expressed willingness to make full restitution clearly was intended to
influence and did in fact influence the court to be more lenient in
sentencing").  In structuring the terms of plea bargains, prosecutors
would have less scope to exercise their judgment that victim
restitution (as opposed to a prison term) would best serve society's
interests.

   3. The danger that an "offense of conviction" limitation would
undermine the goal of full and fair victim compensation is starkly
revealed by the attempts of the courts of appeals, under the Federal
Probation Act (FPA), to avoid the unpalatable consequences of the
limitation in a system dominated by plea bargaining.  Since 1925, the
federal courts have had authority to impose restitution as a condition
of probation.  See Act of Mar. 4, 1925, ch. 521, Section 1, 43 Stat.
1259.  /19/ The FPA, in sharp contrast to the VWPA, provided that a
court could order the defendant "to make restitution or reparation to
aggrieved parties for actual damages or loss caused by the offense for
which conviction was had." 18 U.S.C. 3651 (1982) (emphasis added).
Although the courts of appeals were in general agreement that a
restriction on the extent of restitution flowed from that particular
statutory language, the cases were split on the extent and nature of
that limitation.  One line of cases maintained that the FPA limited
the scope of restitution to the conduct inherent in the offense of
conviction.  See, e.g., Karrell v. United States, 181 F.2d 981 (9th
Cir.), cert. denied, 340 U.S. 891 (1950);  United States v. Johnson,
700 F.2d 699, 701 (11th Cir. 1983).  However, without pointing to a
clear statutory basis, another line of decisions recognized an
exception, commonly arising in the plea bargain situation, in which
the defendant agreed to make restitution for the greater amount as a
condition of his plea, or admitted at some point in the proceedings
that he was responsible for losses caused by conduct outside the
offense of conviction.  See, e.g., United States v. Orr, 691 F.2d 431
(9th Cir. 1982);  United States v. McMichael, 699 F.2d 193 (4th Cir.
1983).  /20/ See also Slavin & Sorin, Congress Opens a Pandora's Box
-- Restitution Provisions of the Victim and Witness Protection Act of
1982, 52 Fordham L. Rev. 507, 512 (1984) (reviewing
"judicially-created exceptions to the restrictive approach" under the
FPA).  By creating an exception for admissions" or fully bargained
pleas, these courts avoided circumscribing judicial authority to order
restitution in cases where procedural difficulties of fact-finding and
proof were minimized by the defendant's admission (see note 20,
supra), and the unfairness and inflexibility of the "offense of
conviction" rule were thus most apparent.

   Because the more permissive language of the VWPA has generally been
construed to permit restitutionary orders that account for losses
beyond the offense of conviction, as yet the courts of appeals have
had no occasion to determine the issue whether such an exception
exists under the Act.  /21/ In this very case petitioner, at his
sentencing hearing, indicated a willingness to accept responsibility
for losses beyond those caused by the offense of conviction;  thus, if
the courts below had adopted an offense of conviction standard, they
might have had to confront that issue.

   In our view, the VWPA no more supports an "admissions exception"
than it does an "offense of conviction" standard to which such an
exception would apply.  Rather, the statute grants discretionary
authority applicable in all cases where responsibility for the
victim's losses is established -- whether through the defendant's own
admission, or through judicial factfinding.  /22/ By creating an
elaborate factfinding procedure and prescribing a standard of proof of
injury, Congress has decided that the only necessary predicate for a
full order of restitution -- where such restitution would be
"appropriate" -- is a finding by a preponderance of the evidence that
the loss sustained by the victim was the result of a defendant's
actions.  It is not for the judiciary to strike a different balance by
reading the VWPA to permit a broader restitution order only when the
basis for such an order is supplied by the defendant's own admission
or agreement.  /23/

   4. In 1986, as part of the Criminal Law and Procedure Technical
Amendments Act of 1986, Pub. L. No. 99-646, Section 79(a), 100 Stat.
3619, Congress changed the term "victim of the offense" in Section
3579(a) to read "victim of such offense." As we have noted, see note
2, supra, the substantive sentencing provision in effect on the date
of petitioner's October 1985 offense governs this case.  Hence,
petitioner is wrong to assume that the version of Section 3579(a) that
applies here includes the phrase, "any victim of such offense." See
Miller v. Florida, 482 U.S. 423, 429 (1987);  Calder v. Bull, 3 U.S.
(3 Dall.) 386, 390 (1798).  But, in any event, petitioner is plainly
wrong in arguing (Br. 21-25) that this change restricted the scope of
restitution available under the VWPA, or that it somehow demonstrated
that the 1982 version of the VWPA was itself intended to be
restrictive.  As the committee report explained, this change was
"unnecessary because it will not alter the meaning of the provision."
H.R. Rep. No. 334, 99th Cong., 1st Sess. 7 (1985).  /24/ The committee
report included the following explanation of what is referred to by
the phrase "victim of the offense" in the 1982 version of Section
3579(a):

      The term "the offense" in the phrase "victim of the offense," by
      the ordinary rules of sentence construction, refers to the term
      "offense" in the antecedent phrase in the same sentence,
      "convicted of an offense." That term means a victim of the
      offense for which the defendant has been convicted and is being
      sentenced.

H.R. Rep. No. 334, supra, at 7 (footnote omitted).  /25/ We subscribe
to this analysis of the meaning of the phrase, "victim of the offense"
in Section 3579 as enacted.  As we have pointed out, the phrase merely
identifies who may receive restitution, just as the phrase "the
defendant" merely identifies who may be ordered to pay it.  The scope
of the crucial term, "order of restitution," is in no way affected by
the conclusion that the term "offense" refers to the offense on which
sentence is being imposed, i.e., the offense of conviction.  /26/

   B. Judicial Authority Under the VWPA To Look Beyond the Particular
Count of Conviction in Fixing Restitution Is Consistent With the
Nature of Restitution as a Penal Sanction and With the Courts'
Customary Flexibility To Fix the Terms of a Sentence

   As we have argued, the language of the VWPA fully supports the
sentencing court's discretion, in ordering restitution, to take into
account conduct other than that underlying the offense of conviction.
There are, in addition, other important considerations buttressing the
existence of such discretion.  First, Congress legislated against a
familiar common law background relating both to the nature of
restitution as a penal sanction and to the permissible scope of penal
restitution orders.  Second, the statute should be understood in the
context of the customary discretion accorded sentencing judges to look
to factors beyond the elements of the statutory offense in fixing the
terms of a sentence.

   1. One possible source of limitation on judicial authority to fix
the amount of restitution under the VWPA is that the order must
qualify as an "order of restitution." Since the VWPA does not provide
a definition of that term, it should be interpreted as having its
contemporary, ordinary meaning.  See John Doe Agency v. John Doe
Corp., 110 S. Ct. 471, 476 (1989).  As we will show, the contemporary
and ordinary meaning of an order of restitution, when it is employed
as a penal sanction, does not inherently limit its scope to the losses
caused by the offense of conviction.  Rather, the restitution order
need only be reasonable, fundamentally fair, and justified by
legitimate penological objectives.

   a. "Far from being a novel approach to sentencing, restitution has
been employed as a punitive sanction throughout history." Note, Victim
Restitution and the Criminal Process:  A Procedural Analysis, 97 Harv.
L. Rev. 931, 933 (1984).  Although declining in importance following
the separation of civil and criminal law in Western legal systems,
restitution never passed entirely out of use as a criminal sanction.
Restitution was a common sanction in colonial times (see id. at 934),
and prior to enactment of the VWPA, it had long been available as a
criminal sanction under state law, and as a condition of probation
under federal law (i.e., the Federal Probation Act).  See id. at
934-935.  /27/

   Although focusing primarily on harm to victims rather than to
society as a whole, restitution shares the traditional objectives of
other criminal sanctions:  retribution, rehabilitation, and
deterrence.  For example, restoring the victim's property serves the
legitimate penal purpose of vindicating society's interest in peaceful
retribution by providing a means for the offender to "make the victim
whole." Restitution is "constructed to fit the crime and to emphasize
the wrongfulness of the offense and the defendant's moral
responsibility." Note, supra, 97 Harv. L. Rev. at 939.  The offender
"disgorge(s) his ill-gotten gains or pay(s) for the injury he has
caused." He is "forced to restore the status quo at his expense, thus
the victim exacts his revenge." Note, The Victim and Witness
Protection Act of 1982:  Who are the Victims of Which Offenses?, 20
Val. U.L. Rev. 109, 140 (1985).

   Commentators, and this Court, have also recognized the strong
rehabilitative potential of restitution.  See Kelly v. Robinson, 479
U.S. 36, 49 n.10, (1986).  Like a criminal fine, restitution involves
the payment of money, but restitution may be more effective as a tool
for rehabilitation.  As one commentator has pointed out, "(t)o the
offender's pocket it makes no difference whether what he has to pay is
a fine, costs or compensation.  But to his understanding of the nature
of justice it may make a great deal." M. Fry, Arms of the Law 124
(1951).  Restitution brings the offender face to face with the
concrete effects of his wrongful conduct on individual members of
society by establishing a relationship between the offender and "the
person whom he made his victim." Restitution forces the offender to
continue to confront his victim until such time "as the victim's
condition has been restored to the fullest extent possible." S.
Shafer, Compensation and Restitution to Victims of Crime 135 (1970);
see also id. at 125-126.  For this reason, "in many cases, payment to
the injured party will have a stronger inner punishment value than the
payment of a sum to the neutral state." Shafer, Restitution to Victims
of Crime -- An Old Correctional Aim Modernized, 50 Minn. L. Rev. 243,
249 (1965).

   Finally, "(l)ike a fine, restitution can also be an effective
deterrent." Indeed, "restitution may be more effective than a fine."
Note, supra, 97 Harv. L. Rev. at 938.  In many instances, especially
in white collar or economic crimes, the criminal's gain is usually
equal to the victim's loss, while a fine typically represents only
some fraction of the benefits of a crime.  Restitution, which "more
directly corresponds to the loss the offender has caused," also more
effectively deprives the offender of his ill-gotten gains.  Id. at
939.  See also Kelly v. Robinson, 479 U.S. at 49 n.10 ("(T)he more
precise relation between the harm and the punishment gives restitution
a more precise deterrent effect than a traditional fine.").

   b. The meaning and scope of the term "order of restitution" in the
VWPA is further illuminated by consideration of the state courts'
exercise of their authority to administer restitution as a penal
sanction.  State court authority to impose a penalty of restitution as
a condition of probation has existed for even longer than federal
authority, and is now universally prescribed by statute.  /28/ The
legislative history of the VWPA makes clear that, in structuring the
restitution provisions of the VWPA, Congress was aware of the states'
conception of the proper scope and purposes of the penal sanction of
restitution, and the bounds of their courts' sentencing power.  /29/

   An examination of state jurisprudence reveals that, except to the
extent authority to order penal restitution is specifically limited by
statute, the courts have generally assumed an expansive authority to
shape restitution orders by considering conduct of the defendant
beyond the narrow confines of the actual offense of conviction.  /30/
Once conferred, the court's authority is inherently limited only by
general standards of reasonableness governing consideration of
extra-statutory factors that have always been understood appropriately
to bear on sentencing, and by the requirement that the restitution
order advance recognized penological goals.  Although rarely
characterizing their rulings directly in terms of penological
objectives, state courts have acknowledged that their residual
authority to go beyond the conduct underlying the offense of
conviction, even under a liberal statute, is not unbounded.  See,
e.g., People v. Williams, 247 Cal. App. 2d 394, 55 Cal. Rptr. 550, 560
(Ct. App. 1966) (restitution for assault against store owner who
confiscated an overdrawn credit card issued to the defendant could not
extend to repayment to the credit card issuer of the amount of
defendant's unpaid debt).  /31/ In upholding an extensive restitution
order, after concluding that a "defendant's rehabilitation could best
be achieved in a context of complete reparation for the harm done his
former customers," one California court stated:

      Our conclusion should not be interpreted as authorizing the
      trial court or the probation office to range far afield in
      search of all possible losses caused by the defendant and
      require him to wipe his financial slate completely clean as a
      condition of his probation.  Such a policy would reduce the
      courts to mere collection agencies.  But we do agree with what
      seems to be the principle established by the California cases,
      that the probation office in fixing restitution should not be
      limited by the formalities of the criminal proceeding.
      Probation is granted in hope of rehabilitating the defendant and
      must be conditioned on the realities of the situation, without
      all of the technical limitations determining the scope of the
      offense of which defendant was convicted.  In determining where
      to draw the line between what is a reasonable and what is an
      unreasonable condition, common sense and reason must limit the
      court's discretion.  This discretion must not be disturbed
      unless there has been a manifest abuse.

People v. Miller, 256 Cal. App. 2d 348, 356, 64 Cal. Rptr. 20, 25
(1967).

   2. This flexible approach to fixing the level of restitution is
fully in keeping with the courts' customary discretion to consider a
wide variety of factors in passing on the more conventional aspects of
a sentence.  See, e.g., United States v. Grayson, 438 U.S. 41, 47-55
(1978) (sentencing judge's authority to calibrate sentence based on a
"largely unlimited" range of information;  judge could consider
evidence that defendant testified falsely at trial, notwithstanding
absence of charge or conviction for perjury);  Profitt v. Florida, 428
U.S. 242, 255-258 (1976) (aggravating and mitigating factors
considered by judge in imposing death penalty);  McMillan v.
Pennsylvania, 477 U.S. 79, 85-86 (1986) (upholding state statute that
treats "visible possession of a firearm" during the commission of an
offense, if found by the judge by a preponderance of the evidence, as
a "sentencing factor" for application of a mandatory minimum).

   In the new Sentencing Reform Act of 1984, Pub. L. No. 98-473, ch.
II, 98 Stat. 1987;  see 28 U.S.C. 991(b) (Supp. IV 1986) and 994(k);
18 U.S.C. 3553(a)(2) (Supp. II 1984), Congress has shifted the
emphasis in federal sentencing policy away from rehabilitation to
punishment, education, and deterrence.  See Mistretta v. United
States, 109 S. Ct. 647, 651 (1989).  But it has preserved the
authority of courts to look beyond the statutory elements of the
offense of conviction in imposing sentence.  See Sentencing Guidelines
promulgated by the United States Sentencing Commission (effective
November 1, 1989), implementing 28 U.S.C. 994 et seq.  By mandating
consideration of a host of factors, the Sentencing Guidelines
incorporate into the process of fixing sentence various "real offense"
characteristics of the criminal violation, in addition to the strict
elements of the charge.  See United States Sentencing Commission
Guidelines Manual 1.5-1.6 (Nov. 1, 1989) (hereinafter Sentencing
Guidelines) (discussion of sentencing guidelines as a "modified real
offense system");  see also, e.g., Sentencing Guidelines Section
5E1.2, at 5.18-5.21 (factors in determining amount of criminal fine).

   In particular, with regard to the offense of which petitioner was
convicted -- a violation of 18 U.S.C. 1029 (Supp. II 1984) -- the
Sentencing Guidelines specifically provide for a punishment range that
is geared to the total amount of the victim's loss caused by parallel
instances of "unauthorized use of an access device" by the defendant,
where such instances can be separately charged under the applicable
provision.  The commentary following Section 2F1.1 para. 6 of the
Guidelines, which sets forth rules of sentencing for a category of
fraud and deceit offenses (including violations of Section 1029),
provides (emphasis added):

      Some fraudulent schemes may result in multiple-count
      indictments, depending on the technical elements of the offense.
       The cumulative loss produced by a common scheme or course of
      conduct should be used in determining the offense level,
      regardless of the number of counts of conviction.

   Moreover, in addressing repetitive or ongoing criminal behavior
under Section 3D1.2(b), at 3.13, the Guidelines direct a grouping
together for sentencing purposes of

      Counts involv(ing) the same victim and two or more acts or
      transactions connected by a common criminal objective or
      constituting part of a common scheme or plan.

   3. Congress, in formulating the VWPA, authorized the sentencing
court to look beyond the strict statutory elements of an offense to
other "appropriate factors" -- including the "realities" of the
offenders' entire course of conduct towards the victim -- in fixing
the amount of restitution.  Thus, the VWPA works no radical departure
from the "real offense" approach to sentencing that the courts have
commonly practiced, with this Court's approval, and that Congress
recently codified in systematic form in the Sentencing Reform Act of
1984.  And there is nothing unique to restitution that would justify a
different standard for this penalty, or would warrant restrictions on
consideration of additional wrongful conduct of a defendant towards
the victim as an "appropriate factor" in sentencing.  On the contrary,
a reading of the statute as mandating an inflexible disregard of such
conduct would seriously undermine the goals of retribution,
rehabilitation, and deterrence as well as objectives of fairness and
broad compensation that are expressly articulated in the VWPA itself.

   a. As discussed above, a preponderance of evidence may convincingly
point to a defendant's responsibility for acts that, for reasons
unrelated to the ambit of the defendant's activities or the extent of
his culpability, are not charged in the indictment, made the basis of
a plea bargain, or successfully prosecuted "beyond a reasonable doubt"
at trial.  Both the defendant and the victim may be well aware that
the count of conviction represents only a small fraction of the loss
that the victim suffered through the offender's wrongful conduct.
Charging only the smaller amount will eviscerate the potential
deterrent effect of restitution, which is maximized only if the
defendant is made to disgorge the full value of his ill-gotten gains.
And the psychological and rehabilitative benefits to a defendant of
making the victim whole will be lost if the defendant is ordered to
compensate the victim for only a fraction of the actual damage.
Finally, an order of restitution that falls short of full compensation
to the victim will frustrate the retributive purposes of the
punishment, causing the victim to feel that he has not received
satisfaction and that justice has not been done.  Thus, the VWPA
should be construed in a manner that will enable courts to maximize
the objectives of restitution to the fullest possible extent.  An
"offense of conviction" limitation on the amount of restitution
disserves this goal.

   b. A reading of the courts of appeals decisions applying the VWPA
suggests a number of "appropriate factors" (see Section 3580(a)) that
may properly enter into the determination whether restitution should
include amounts in excess of the loss caused by the specific offense
of conviction.  Thus, the courts have focused on the concepts of
"related acts," United States v. Berrios, 869 F.2d at 29;  on whether
there is a "significant connection" between the offense and other
acts, see United States v. Duncan, 870 F.2d 1532, 1536 (10th Cir.
1989);  on whether the conduct of conviction is part of a conspiracy,
scheme or plan, see United States v. Pomazi, 851 F.2d 244, 249 (9th
Cir. 1988);  United States v. Angelica, 859 F.2d 1390, 1395 (9th Cir.
1988);  and, in defining the ambit of the term "victim of the
offense," on whether a person suffers as a result of a "continuing" or
"uninterrupted series of events surrounding the criminal activity,"
United States v. Mounts, 793 F.2d 125, 129 (6th Cir. 1986);  United
States v. Durham, 755 F.2d 511, 513 (6th Cir. 1985).  See also Pet.
Br. 31-33 & n.18-20 (citing cases under the VWPA).  And under both the
VWPA and FPA, courts have placed significant emphasis on whether the
defendant has agreed to make restitution in excess of the conduct of
conviction as part of his plea bargain, United States v. Kirkland, 853
F.2d 1243, 1251 (5th Cir. 1988), or has admitted to responsibility for
the greater loss.  See, e.g., United States v. Berrios, 869 F.2d at
32, 33;  United States v. Spambanato, 876 F.2d 5, 7 (2d Cir. 1989);
United States v. Paul, 783 F.2d 84, 86-88 (7th Cir. 1986).  See also
cases cited pp. 24-25 & n.21, supra.

   The intuition that the presence of such factors often makes a
broader restitution order more appropriate is fundamentally sound.  An
amount of restitution that fails to compensate for closely related
wrongful conduct is manifestly less fair to the victim, and more
likely to undermine goals of deterrence, rehabilitation, and
retribution, than is an order that leaves uncompensated losses that
are only remotely related to the conduct underlying the conviction.
And when the defendant has acknowledged culpability for losses in
excess of the conduct of conviction, the unfairness of ignoring such
losses may seem greater than if the injury is proved by extraneous
evidence, since, in the former case, the offender's responsibility for
the loss is not in doubt.  /32/ The statute makes room for these
considerations, not as hard and fast criteria, but as "appropriate
factors," see Section 3580(a), that may shape a restitution order.
/33/ And like other decisions with regard to sentencing, the judge's
decision to take into account conduct other than that underlying the
offense of conviction, if otherwise within statutory bounds, should be
reviewed only for abuse of discretion.  Cf. United States v. Youpee,
836 F.2d 1181, 1182 (9th Cir. 1988).

   In this case, it was entirely appropriate for the court to look
beyond the offense of conviction, and beyond the petitioner's
suggested limit to the losses caused by use of the Godfrey credit
card, to the petitioner's entire course of conduct that resulted in
injury to MBank.  The fact that petitioner refused to admit to
responsibility for losses flowing from the unauthorized use of credit
cards other than the Godfrey card does not in itself defeat the
restitution order under the VWPA.  It was sufficient that the
government showed by a preponderance of the evidence that petitioner
had in fact removed the cards from the post office box and that his
actions resulted in their unauthorized use.  Given the close relation
between this conduct and the offense of conviction, and the existence
of a common victim and a common scheme, the court did not abuse its
discretion in deciding that the goals of the restitution provisions
were best served by a more inclusive order.

   II. A SENTENCE OF RESTITUTION FOR LOSSES CAUSED BY ACTS OTHER THAN
THE OFFENSE OF CONVICTION DOES NOT VIOLATE THE CONSTITUTION

   Section 2(b)(2) of the VWPA directs the courts to protect victims
to the fullest extent possible "without infringing on the
constitutional rights of the defendant." Congress surely intended to
authorize restitution orders in an amount based on conduct other than
the offenses of conviction, since such penalties do not violate any
constitutional rights.  Petitioner argues (Br. 27-31) that the
interpretation of the VWPA applied by the courts below infringed his
Sixth and Seventh Amendment rights to trial by jury and his Fifth
Amendment right to due process.  The courts of appeals have rejected
constitutional challenges to the VWPA, see, e.g., United States v.
Palma, 760 F.2d 475 (3d Cir. 1985);  United States v. Keith, 754 F.2d
1388 (9th Cir.), cert. denied, 474 U.S. 829 (1985);  United States v.
Watchman, 749 F.2d 616 (10th Cir. 1984);  United States v. Brown, 744
F.2d 905 (2d Cir.), cert. denied, 469 U.S. 1089 (1984);  United States
v. Florence, 741 F.2d 1066 (8th Cir. 1984);  but see United States v.
Durham, 755 F.2d at 514 (declining to address the issue), and their
reasoning is fully applicable in this case.

   1. Petitioner has no Seventh Amendment right to a jury trial on the
issue of restitution because that right extends only to civil cases.
The characterization of a penalty as civil or criminal is a question
of legislative intent, United States v. Ward, 448 U.S. 242, 248
(1980).  Here, the character of restitution as a criminal rather than
a civil sanction is evident from the language, structure, and
legislative history of the VWPA.  The statute permits restitution to
be ordered "in addition to or in lieu of any other penalty authorized
by law," Section 3579(a)(1), and the "penalty" of restitution is
imposed when sentencing a defendant convicted of an enumerated
criminal offense.  Ibid.  If restitution is ordered as a condition of
probation or parole, revocation (followed by incarceration) may result
from the defendant's failure to adhere to the order.  Section 3579(g).
 Also, the "victim of the offense," while the beneficiary of the
restitution order, does not initiate, directly participate in, or
otherwise control the course of the restitution proceeding.  /34/ In
sum, no provision of the VWPA supports a view that an order of
restitution is a civil, rather than a criminal sanction.  /35/

   2. Petitioner's Fifth and Sixth Amendment arguments are based on
the erroneous assumption that an order of restitution compensating for
injury caused by particular acts necessarily inflicts a penalty for
those acts.  In acting on its findings, during the sentencing phase,
as to the fact and amount of injury to MBank from the theft of credit
cards other than the Godfrey card, the court did not adjudicate
petitioner's guilt of any crimes other than the offense to which he
pleaded guilty, nor did it punish him for any other conduct.  As we
have explained, it is common practice for sentencing judges to look
beyond the narrow confines of the statutory elements of the offense,
and to take into account a host of "facts related to the crime,"
McMillan v. Pennsylvania, 477 U.S. 79, 92 (citing Profitt v. Florida,
428 U.S. 242 (1976).  Judges routinely consider evidence of past acts
or criminal conduct of a defendant -- including activities that are
remote in time and unrelated to the crime of conviction, or that have
never resulted in a criminal conviction.  Cf. Sentencing Guidelines
Section 4A1.1, at 4.1;  id. Section 4A1.3, at 4.9 (guidelines for
taking into account prior criminal conduct, including, where
appropriate, "prior similar adult criminal conduct not resulting in a
criminal conviction").

   These sentencing practices have withstood constitutional challenge.
 In United States v. Grayson, 438 U.S. 41, 45-55 (1978), the Court
upheld, as a rational exercise of judicial discretion, a judge's
consideration at sentencing of a defendant's false testimony, for
which he had been neither tried nor convicted.  "A defendant's
truthfulness or mendacity while testifying," the Court observed, is
"probative of his * * * prospects for rehabilitation and hence
relevant to sentencing." 438 U.S. at 50.  Indeed, the Grayson Court
endorsed the "fundamental sentencing principle," enacted into law by
Congress in 18 U.S.C. 3577 as part of the Organized Crime Control Act
of 1970 (now codified at 18 U.S.C. 3661), that "no limitation" need be
placed on "the information concerning the background, character, and
conduct of a person convicted of an offense which a court * * * may
receive and consider for the purpose of imposing an appropriate
sentence." 438 U.S. at 50.  /36/

   Moreover, once guilt of the offense has been established, there is
no Sixth Amendment right to have a jury determine the appropriate
penal sanction for that offense.  This Court has held that the
sentencing function may constitutionally be discharged by the trial
judge.  See, e.g., McMillan v. Pennsylvania, 477 U.S. at 93.  During
the sentencing phase, the defendant is entitled to fundamental due
process protections and to a decision that is not based on
demonstrably inaccurate information.  See Townsend v. Burke, 334 U.S.
736, 741 (1948);  Gardner v. Florida, 430 U.S. 349, 358 (1976)
(plurality opinion);  Mempa v. Rhay, 389 U.S. 128, 134-137 (1967)
(right to counsel);  Specht v. Patterson, 386 U.S. 605, 610 (1967)
(right to notice, to present evidence, to examine witnesses).  The
combination of the provisions of Fed. R. Crim. P. 32 and the
procedures specified in the VWPA assure that those fundamental
protections will be afforded in the imposition of a restitution order,
and they were afforded here.  /37/ Indeed, since Rule 32 applies to
all aspects of sentencing, a defendant's procedural opportunities to
contest the government's factual proffer on the issue of restitution
are no less extensive than his opportunities to contest other
sentencing determinations made under the procedures of that rule.  See
Rule 32(c)(3)(A)-(E);  VWPA Section 3580(c) and (d).  /38/

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   AMY L. WAX

      Assistant to the Solicitor General

   RICHARD A. FRIEDMAN

      Attorney

   MARCH 1990

   /1/ The full text of Sections 3579 and 3580 and other pertinent
sections of the Victim and Witness Protection Act of 1982 in effect at
the time of petitioner's offense are set forth in an appendix to this
brief.  Since the enactment of the restitution provisions on October
12, 1982 -- effective for offenses committed after January 1, 1983 --
numerous technical amendments have been made, including a renumbering
of the provisions initially codified at 18 U.S.C. 3579, 3580, as 18
U.S.C. 3663, 3664, effective November 1, 1987.  Pub. L. No. 97-291,
Section 5(a), 96 Stat. 1253, renumbered, Pub. L. No. 98-473, Tit. II,
Section 212(a)(1), 98 Stat. 1987.  Like petitioner and the court
below, we will refer to these sections as Sections 3579 and 3580.

   /2/ In his statement of the statutory provisions involved (Br. 2),
petitioner includes a November 10, 1986 change in the statute, which
substituted "such offense" for "the offense" as the last two words of
Section 3579(a)(1).  This change postdates petitioner's 1985 offense,
but in any event the change does not affect the analysis in this case.
 See discussion, pp. 26-28, infra.

   /3/ Petitioner was originally charged by criminal complaint with
one count of use of an unauthorized credit card, in violation of 18
U.S.C. 1029(a)(2) (Supp. II 1984), and one count of theft by a postal
employee, in violation of 18 U.S.C. 1709 (1982).  He was initially
indicted on the same counts.  A first superseding indictment added two
more counts under Section 1029(a)(2) and one additional count under
Section 1709.  Gov't C.A. Br. 3;  1 R. 121-123, 172-173, 182-184.

   /4/ The count conformed with the elements of 18 U.S.C. 1029(a)(2)
(Supp. II 1984), which provides as follows:

   (a) Whoever --

                      * * * *

         (2) knowingly and with intent to defraud traffics in or uses
      one or more unauthorized access devices during any one-year
      period, and by such conduct obtains anything of value
      aggregating $1,000 or more during that period;  * * * * * shall,
      if the offense affects interstate or foreign commerce, be
      punished as provided in subsection (c) of this section.

   /5/ The relevant sentencing provision of 18 U.S.C. 1029(c) (Supp.
II 1984) provides for a fine of not more than $10,000 or twice the
value obtained by the offense or imprisonment for not more than ten
years, or both, for a first offense.

   /6/ Petitioner's co-conspirators, Thompson and Beatty, were
separately charged.  In a separate proceeding completed prior to
petitioner's sentencing, co-conspirator Thompson pleaded guilty to one
count of possession of stolen mail, in violation of 18 U.S.C. 1708
(1982), and was sentenced to five years' imprisonment and ordered to
pay restitution to various financial institutions in the amount of
$147,646.89, jointly and severally with restitution ordered against
related defendants.  Restitution to MBank USA was ordered in the
amount of $144,887.22, restitution to Marine Midland Retail Credit was
ordered in the amount of $1,420.70, and restitution to Government
Employees Credit Union was ordered in the amount of $1,338.97.  United
States v. Clarence Eugene Thompson, No. SA-86-CR-163 (W.D. Tex. Dec.
8, 1986).  In a separate proceeding completed after petitioner's
sentencing, co-conspirator Beatty pleaded guilty to one count of use
of an unauthorized credit card in violation of 18 U.S.C. 1029(a)(2)
(Supp. II 1984), and was sentenced to eight years' imprisonment and
ordered to pay $24,115.89 restitution.  United States v. Thomas Edward
Beatty, Jr., No. SA-86-CR-84 (W.D. Tex. Sept. 4, 1987).

   /7/ This amount involved petitioner's distribution or use of
unauthorized credit cards issued by institutions other than MBank USA.
 See note 6, supra.

   /8/ Petitioner never argued, either before the district court or
thereafter, that the government had breached the terms of his plea
agreement, or that the agreement was invalid under Fed. R. Crim. P. 11
because, prior to acceptance of his plea, he was not properly
informed, or was affirmatively misinformed, of his potential exposure
for restitution.  Rather, he consistently maintained that the
restitution order was invalid for exceeding the amount authorized
under the VWPA.  See discussion at note 37, infra.

   /9/ The court also rejected petitioner's argument that an order of
restitution imposed on him was precluded by the prior order imposed on
his co-conspirator Thompson.  The court held that, although the VWPA
(Section 3579(e)) foreclosed double recovery by MBank, it did not
preclude "joint and several" restitution orders.  J.A. 84.  Finally,
the district court rejected petitioner's argument that his indigence
precluded the restitution order.  The court stated that it had
considered petitioner's financial situation as required by the VWPA
(Section 3580(a)), but that petitioner's indigence at the time of
sentencing did not preclude the order for restitution.  J.A. 84-85.

   /10/ The court also found support for the government's view in the
language of Section 3580(e), which provides that a conviction of a
defendant "for an offense involving the act giving rise to restitution
under this section shall estop the defendant from denying the
essential allegations of that offense" in subsequent civil proceedings
by the victim.  The court reasoned that, "if Congress had intended to
limit the amount of restitution to that attributable to offense of
conviction, subsection (e) would not have needed to employ the phrase
'for an offense involving the act giving rise to restitution' but
instead could have simply stated 'for an offense giving rise to
restitution.'" J.A. 94.  The phrase "involving the act" was "useless
surplusage" under petitioner's limited reading of the statute.  Ibid.

   /11/ The court of appeals also rejected petitioner's argument that
the sentencing court had not properly assessed his indigence and had
not given adequate consideration to petitioner's proposed "compromise"
figure.  J.A. 107-110.

   /12/ We agree with petitioner, see Pet. Br. 15 n.4, that this case
does not present the related question of who may qualify as a proper
victim of the "offense of conviction," since MBank was unquestionably
the victim of the offense to which petitioner pleaded guilty, and
MBank suffered the entire loss represented by the total amount of
restitution ordered by the judge.

   Nor does this case 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.

   /13/ While Section 3580(a) allows the court to consider all
"appropriate" factors in shaping an order, a number of provisions of
Section 3579 do operate to define the scope of the court's discretion.
 As already noted, Section 3579(a) limits restitution orders to the
victim of the offense of conviction.  Section 3579(b) specifies the
kinds of loss for which the order can compensate in the case of damage
to property or personal injury.  (The language of this subsection,
which refers to an "offense resulting in" property damage or personal
injury, cannot be read to limit all restitutionary authority to the
offense of conviction, since the clear purpose of the subsection is,
as indicated, to spell out the kinds of harms that can be the subject
of a restitution order, e.g., costs of professional services, loss of
income, value of property, etc.  See S. Rep. No. 532, 97th Cong., 2d
Sess. 31-32 (1982).) In addition, the formulation of a restitution
order may not unduly complicate or prolong the sentencing process
(Section 3579(d));  the victim may not receive double recovery on
account of restitution (Section 3579(e));  and the order may not
impose a payment obligation beyond a specified period of time (Section
3579(f)).

   /14/ In support of his reading of the statute, petitioner seeks
refuge in the rule of lenity.  Br. 23-24.  See, e.g., Crandon v.
United States, No. 88-931 (Feb. 27, 1990), slip op. 15.  As petitioner
recognizes (Br. 24), however, that canon of statutory construction is
not applicable where, as here, the statute expressly or by implication
makes the intent of Congress sufficiently clear.  See United States v.
Turkette, 452 U.S. 576, 587-588 n.10 (1981).

   /15/ As part of its substantial revision of federal sentencing
procedures in the Sentencing Reform Act of 1984, Congress replaced the
VWPA provisions of Rule 32(c)(2)(C) and (D) with new provisions (D)
and (F), which now require the presentence report to contain "verified
information stated in a nonargumentative style containing an
assessment of the financial, social, psychological, and medical impact
upon, and cost to, any individual against whom the offense has been
committed" and "such other information as may be required by the
court." Act of Oct. 12, 1984, Pub. L. No. 98-473, Section 215(a), 93
Stat. 2014.  There is no indication that any substantive change was
intended by this modification.

   /16/ Effective December 10, 1986, Section 3579(d) was modified to
provide as follows:

      To the extent that the court determines that the complication
      and prolongation of the sentencing process resulting from the
      fashioning of an order of restitution under this section
      outweighs the need to provide restitution to any victims, the
      court may decline to make such an order.

Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L.
No. 99-646, Section 77(a), 100 Stat. 3618;  see 18 U.S.C. 3579(d)
(Supp. IV 1986).  The balance required by this version of the
provision is not significantly different from that required by the
initially enacted version of the VWPA.

   /17/ The statement of findings and purposes enacted in Section 2 of
the VWPA sheds additional light on one aspect of what Congress meant
by "fair(ness) * * * to the victim." Congress found that "victims * *
* are either ignored by the criminal justice system or simply used as
tools to identify and punish offenders. * * * All too often the victim
of a serious crime is forced to suffer physical, psychological, or
financial hardship first as a result of the criminal act and then as a
result of contact with a criminal justice system unresponsive to the
real needs of such victim." VWPA Section 2(a)(1) and (2).

   /18/ The legislative history of the VWPA is fully consistent with
the textual evidence that the Act provides a broad scope to the
courts' authority to order restitution.  Thus, in describing the
compromise provision governing restitution, the section-by-section
analysis declared:  "The goal of the legislation is to ensure that
Federal crime victims receive the fullest possible restitution from
criminal wrongdoers." 128 Cong. Rec. 27,391 (1982).  See also 128
Cong. Rec. 26,811 (1982) (statement of Sen. Laxalt commenting on the
compromise bill) ("The purpose of this bill is to attempt to make the
victim whole once again.").  Similar statements of purpose were made
in reference to both S. 2420, 97th Cong., 2d Sess. (1982) and H.R.
7191, 97th Cong., 2d Sess. (1982) -- the proposed Senate and House
versions -- before the compromise version developed.  See S. Rep. No.
532, 97th Cong., 2d Sess. 30 (1982) ("The premise of the (restitution)
section is that the court in devising just sanctions for adjudicated
offenders() should insure that the wrongdoer make goods (sic), to the
degree possible, the harm he has caused his victim.");  128 Cong. Rec.
26,348 (1982) (statement of Rep. Rodino) ("One of the purposes of the
Federal criminal justice system should be to make the victim
financially whole.  The person who should be responsible for doing
this is the wrongdoer, the person who caused the loss.  For this
reason alone, the courts should order restitution whenever
possible.").

   /19/ The Federal Probation Act (Act of June 25, 1948, ch. 645, 62
Stat. 842, as amended and codified at 18 U.S.C. 3651 (1982)), provided
the statutory authority for such orders of restitution until its
repeal, effective for offenses committed after November 1, 1987, by
the Sentencing Reform Act of 1984, Pub. L. No. 98-473, Tit. II,
Section 212(a)(1) and (2), 235, 98 Stat. 1987, 2031, as amended by the
Sentencing Reform Amendments Act of 1985, Pub. L. No. 99-217, 4, 99
Stat. 1728.  Whether or not the FPA was wholly superseded by the VWPA
prior to 1987, the present case is not governed by the FPA because
petitioner was not ordered to make restitution as a condition of
probation.

   /20/ Yet another line of cases construed the FPA as imposing a
limitation only on the independent fact-finding authority of the
sentencing court.  Unlike the VWPA, the FPA did not explicitly provide
for judicial determination of harm to the victim and did not contain
provisions allocating the burden of proof or setting the standard of
proof of losses resulting from the defendant's actions.  Cf. 18 U.S.C.
3580(d).  In addition, not until 1983 was Fed. R. Civ. P. 32(c)
amended to require the collection of information relating to harm to
the victim as part of the presentence report.

   In the absence of fact-finding authorization under the FPA, these
courts held that the sentencing judge was precluded from determining
the total losses caused by defendant's conduct as an aspect of the
sentencing hearing;  but if such losses had been established at trial,
by plea, or in some other forum, then a restitution order under the
FPA could extend to conduct beyond the offense of conviction.  See,
e.g., United States v. Gering, 716 F.2d 615, 625 (9th Cir. 1983);
United States v. Landay, 513 F.2d 306 (5th Cir. 1975).

   /21/ See cases cited at pp. 39-40, infra;  but see United States v.
Berrios, 869 F.2d at 32 (noting defendant's expressed willingness to
make full restitution);  United States v. Spambanato, 876 F.2d at 7
(same);  United States v. Paul, 783 F.2d 84, 88 (7th Cir. 1986)
(restitution proper as to amount of loss defendant "admitted to having
caused").  See also United States v. Kirkland, 853 F.2d 1243, 1251
(5th Cir. 1988) (implying that agreement to make restitution beyond
counts of conviction was part of "detailed plea negotiations").

   /22/ As suggested below, however, pp. 39-41, a court in the
exercise of its discretion to consider "appropriate factors," might
take the existence of the defendant's admission into account as
bearing on both the fairness to the victim and the penological value
of an order of restitution that encompasses losses to the victim from
the admitted conduct.

   /23/ Plea bargains have a dual character.  Cf. Santobello v. New
York, 404 U.S. at 261-262.  To the extent they are contractual
agreements between the prosecutor and the accused, the limitations on
a judge's sentencing authority to order restitution would not limit
the restitution obligation that the defendant might be willing to
undertake in exchange for the government's agreement not to prosecute
on certain charges.  If the defendant breaches his restitution
agreement, the prosecutor may be at liberty to reinitiate prosecution.
 But to the extent a sentencing court seeks to impose a lawful,
enforceable sentence that incorporates a restitution requirement, and
thereby subjects the defendant to possible revision of the sentence
for a violation of the restitution order, the authority to impose such
a sentence must be premised on Congress's grant of authority, not on
the prosecutor's and the defendant's mutual acquiescence.  See United
States v. Missouri Valley Construction Co., 741 F.2d 1542 (8th Cir.
1984) (en banc) (A court has no authority under the FPA to impose on a
willing corporation as a condition of probation, in lieu of a fine,
the requirement that it contribute money to a charitable organization
that has not suffered actual damages or loss from corporation's
criminal conduct.).

   /24/ This report accompanied H.R. 2713, 99th Cong., 1st Sess.
(1985), which is identified at 132 Cong. Rec. H11,295 (daily ed. Oct.
17, 1986) as the source of the change from "the offense" to "such
offense."

   /25/ The omitted footnote to the quoted passage of H.R. Rep. No.
334, supra, see Pet. Br. App. A20 n.26, refers to H.R. Rep. No. 1017,
98th Cong., 2d Sess. 83 n.43 (1984), a report that accompanied the
proposed Sentencing Revision Act of 1984, H.R. 6012, 98th Cong., 2d
Sess. (1984), which was never enacted.  See also Pet. Br. 24 n.14
(citing H.R. Rep. No. 1017, supra).  In the course of discussing the
restitution provisions of the VWPA, H.R. Rep. No. 1017 makes several
assertions that purport to answer the question whether the VWPA
confers authority on the court to "order the defendant to make
restitution to victims of the offenses alleged in the dismissed
counts" of an indictment resolved by plea agreement.  H.R. Rep. No.
1017 at 83 n.43, supra, maintains that an order of restitution under
the VWPA cannot extend to losses caused by defendant's conduct outside
the offense of conviction.

   This statement, which appears in a committee report of a
never-enacted bill, has little if any bearing on the meaning of the
change from "the offense" to "such offense" that was part of a later
enactment, or on any of the issues in this case.  First, the fact that
H.R. Rep. No. 1017 purports to establish post-enactment legislative
history for the VWPA significantly attenuates its value as an
exposition of the intent behind that statute.  Second, the Report
offers no coherent basis in the language of the statute for such a
construction.  Rather, the Report relies on the "victim of the
offense" language in Section 3579(a), which transparently fails to
support a limitation on the amount of restitution, without explaining
how the language operates to limit the amount not simply to the losses
suffered by the victim but to the losses resulting from the offense of
conviction.  (Indeed, the Report may have been focusing on the
question whether restitution can be ordered to the victims of other
offenses and not on the question of restitution to the victim of the
offense of conviction.) Also, the Report states that such an
interpretation "would deprive the defendant of property without due
process of law." As we show in the text, infra, such a constitutional
argument is without merit.  Finally, the reference to H.R. Rep. No.
1017 in the section of H.R. Rep. No. 334 explicating the change from
"the offense" to "such offense," see Pet. Br. App. A20 n. 26, is in
the form of a cryptic "but see" citation without explanation.

   /26/ The legislative materials accompanying the VWPA indicate that
the restitution provisions of the bill were modeled on two
progenitors, one of which was H.R. 6915, 96th Cong., 2d Sess. (1980),
which contained restitution provisions as one small part of the
monumental proposal in 1980 to revise the federal criminal code.  See
128 Cong. Rec. H8202 (daily ed. Sept. 30, 1982) (remarks of Rep.
Rodino).

   Statements in the House Report accompanying that proposed
legislation indicated that the drafters intended to adopt an "offense
of conviction" limitation on the amount of restitution:  "Restitution
may only be imposed with respect to damages established by the
conviction.  Restitution cannot be imposed for damages caused by
conduct in charges that are dismissed." H.R. Rep. No. 1396, 96th
Cong., 2d Sess. 457 (1980).

   This legislative history is of little value in discerning
Congress's intent with respect to the VWPA.  First, although drafters
of the House version of the VWPA acknowledged that the language of
H.R. 7191 (which became the VWPA) was drawn in part from the 1980
bill, H.R. 6915 (see 128 Cong. Rec. H8202 (daily ed. Sept. 30, 1982)
(remarks of Rep. Rodino)), Congress never explicitly adopted the
legislative history of H.R. 6915, nor did it ever refer to or
reiterate the above-quoted passage of the committee report
accompanying the proposed 1980 bill.  The one reference to the 1980
House Report on the predecessor bill in the legislative history of the
VWPA (see 128 Cong. Rec. 26,352 (1982), which is part of the
section-by-section analysis of H.R. 7191) is to a passage explicating
provisions not at issue here.

   Also, the VWPA added provisions that did not appear in the earlier
versions, including those we have identified as central to the breadth
of the statute:  the declaration of findings and purposes directing a
broad construction of the courts' authority to order restitution,
subject only to constitutional limitation;  the directive that the
court "shall impose an order of restitution to the extent that such
order is as fair as possible to the victim . . .";  and the authority
for the sentencing court to determine by a preponderance of the
evidence "(a)ny dispute as to the proper amount or type of
restitution." These differences between the statute proposed in 1980
and the VWPA reflect a considerable expansion of the concept and scope
of victim restitution.

   /27/ See also Jacob, The Concept of Restitution:  An Historical
Overview, in Restitution in Criminal Justice 45 (J. Hudson & B.
Galaway eds. 1977);  Barnett, Restitution:  A New Paradigm of Criminal
Justice, in Assessing the Criminal, 350-354 & n. 2 (R. Barnett & J.
Hagel eds. 1977) (overview of history of restitution);  Slavin &
Sorin, supra, 52 Fordham L. Rev. at 541 n. 194 (reviewing state
statutes).

   /28/ Although state courts may possess inherent authority to impose
penal restitution, see Ex parte United States, 242 U.S. 27, 50 (1916),
modern state cases rely upon statutory authority.  Some state statutes
place express limits of varying kinds on the extent of restitution
that may be ordered;  others grant broader authority.  For examples of
the range of statutory provisions, compare N.J. Stat. Ann. Section
2C43-3(e) (West Supp. 1989) (providing the sentencing court with the
authority to order restitution up to double the "loss to the victim"
where "loss" is defined as "the amount of value separated from the
victim");  Ill. Ann. Stat. ch. 38, Section 1005-5-6(a) and (e)
(Smith-Hurd Supp. 1989) (limiting restitution to "actual out-of-pocket
expenses, losses, damages, or injuries proximately caused by the
conduct of all of the defendants");  with Cal. Penal Code Section
1203.1 (West Supp. 1989) (permitting the court to order "reasonable"
restitution that is "fitting and proper to the end that justice may be
done, that amends be made to society for the breach of the law, for
any injury done to any person resulting from that breach, and * * *
for the reformation and rehabilitation of the prisoner");  Mich. Comp.
Laws Ann. Section 771.3(2)(d) and (4) (West Supp. 1989) (permitting
the court to impose restitution "as the circumstances of the case may
require or warrant, or as in its judgment may be proper");  Or. Code
Ann. Section ORS 137.540 (West Supp. 1989) (court may order as
condition of probation payment of "restitution * * * on a schedule of
payments determined by the court");  Wis. Stat. Ann. Section 973.20
(West Supp. 1989) ("in addition to any other penalty authorized by
law, the (court) shall order the defendant to make full or partial
restitution * * * to any victim of the crime (as a condition of
probation) * * * unless the court finds substantial reason not to do
so").  See also Slavin & Sorin, supra, 52 Fordham L. Rev. at 540 n.194
(review of state statutes);  Note, supra, 20 Val. U.L. Rev. at 131 &
n. 172 (reviewing statutes of states that "have adopted the unlimited
approach in regard to victim restitution").

   /29/ For example, the section-by-section analysis of H.R. 7191,
supra, included the following quotation from a Wisconsin case, Huggett
v. State, 83 Wis.2d 790, 798, 266 N.W.2d 403, 407 (1978), to describe
"the importance of restitution as a criminal sanction," 128 Cong. Rec.
26,352 (1982):

         Restitution can aid an offender's rehabilitation by
      strengthening the individual's sense of responsibility.  (The
      offender) may learn to consider more carefully the consequences
      of his or her actions.  One who successfully makes restitution
      should have a positive sense of having earned a fresh start and
      will have tangible evidence of his or her capacity to alter old
      behavior patterns and lead a law-abiding life.

   See also 128 Cong. Rec. 26,348 (1982) (statement of Rep. Rodino
quoting the same opinion of the Wisconsin Supreme Court).  It is
notable that, under Wisconsin law, restitution may be ordered for "all
property or monetary losses caused by the criminal acts of the
defendant which have been brought to the court's attention, although
the defendant has been convicted or pleaded guilty only to one of
them.  In such situations, when the amount of the loss is determined
on the face of the record or by defendant's admission, no problem
arises as to the amount of restitution which can be made a condition
of probation." State v. Gerard, 57 Wis. 2d 611, 619, 205 N.W.2d 374,
378-379 (1973).  See also Garski v. State, 75 Wis. 2d 62, 72-73, 248
N.W.2d 425, 430-431 (1977) (upholding complete order of restitution
encompassing charges dismissed under plea agreement as "consistent
with the desire to induce financial responsibility as a means of
assisting the defendant to lead a lawabiding life").

   /30/ See, for example, People v. Gallagher, 55 Mich. App. 613, 223
N.W. 2d 92, leave denied, 393 Mich. 766 (1974) (restitution for value
of entire stolen car from defendant convicted of theft of car part);
People v. Dawes, 132 Ill. App. 2d 435, 436, 270 N.E.2d 214, 215
(1971), aff'd, 52 Ill. 2d 121, 284 N.E.2d 629 (1972) (restitution for
losses caused by defendant's fraudulent scheme "not only to original
complainants but also to those subsequently discovered");  People v.
Miller, 256 Cal. App. 2d 348, 64 Cal. Rptr. 20 (1967) (restitution to
various individuals in connection with fraudulent practices of
construction firm in excess of amount involved in one count of grand
theft);  see also State v. Gerard, supra;  People v. Lippner, 219 Cal.
395, 397, 26 P.2d 457, 458 (1933);  but cf. State v. Barnett, 110 Vt.
221, 231-232, 3 A.2d 521, 525 (1939) (in absence of any statutory
provision authorizing or restricting restitution, court decided that
"restitution conditions in probation cases * * * must be for loss
sustained as a direct consequence of the particular crime of which the
respondent stands convicted").

   So strong is the assumption of broad sentencing authority that the
Court of Appeals of Oregon has construed a statute with fairly
restrictive language as consistent with broad judicial authority to
order restitution beyond the count of conviction.  e.g., State v.
Foltz, 14 Or. App. 582, 584-585, 513 P.2d 1208, 1209-1210 (Ct. App.
1973) (order of restitution to welfare department for $2600 illegally
received, as condition of probation on conviction for theft of $120 in
welfare payments, not an abuse of discretion notwithstanding that the
statute authorized an order of "restitution to the aggrieved party for
the damages or loss caused by the offense, in an amount to be
determined by the court").  The language of the Oregon statute has
since been revised to reflect the more expansive approach.  See note
28, supra.

   /31/ In the same vein, the federal courts have recognized limits on
the discretion of sentencing courts to order restitution where losses
are judged too tenuously related to the defendant's offensive conduct,
or as not coming within the appropriate scope of restitutionary
liability.  See, e.g., United States v. Kenney, 789 F.2d 783 (9th
Cir.) (restitution under the VWPA for bank robbery could not extend to
salaries the bank paid its employees to testify at trial), cert.
denied, 479 U.S. 990 (1986);  United States v. Barany, 884 F.2d 1255,
1261 (9th Cir.) (restitution under VWPA for mail fraud perpetrated
against insurance company could not extend to the company's legal fees
in defending a tangentially related civil case), cert. denied, 110 S.
Ct. 755 (1989);  United States v. Pollak, 844 F.2d 145 (3d Cir. 1988)
(no restitution for legal fees).

   /32/ The Sentencing Guidelines recognize that this factor
appropriately bears on sentencing.  See Section 3E1.1, at 3.23-3.24.

   /33/ There are other criminal contexts in which the courts are
called upon to make decisions based on the degree of relationship
between acts or offenses, or whether they are part of a common scheme
or plan.  Cf. Fed. R. Crim. P. 8(a) (Joinder of Offenses) (offenses
may be charged in the same indictment if they are "of the same or
similar character or are based on the same act or transaction or on
two or more acts or transactions connected together or constituting
parts of a common scheme or plan");  Fed. R. Evid. 404(b) (evidence of
"other crimes, wrongs, or acts" are not admissible to show action "in
conformity therewith," but only as "proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident").

   /34/ The victim has no control over the government's request for
restitution or over the government's production of information in
support of the restitution request.  There is no provision for the
victim to appeal the district court's restitution determinations as
inadequate, inappropriate, or illegal.  See United States v. Franklin,
792 F.2d 998 (11th Cir. 1986).  The consideration of restitution
during sentencing does not supplant the victim's right to bring a
civil proceeding, although there are provisos precluding double
recovery by the victim.  Section 3579(e).  The collateral estoppel
effect of an order of restitution is limited to the "essential
allegations" of the offense for which the defendant is being
sentenced.  Section 3580(e).

   /35/ An order of restitution may be enforced by the United States
or by a victim named in the order to receive the restitution in the
same manner as a judgment in a civil action.  Section 3579(h).  This
is no different in conception from the authority of the United States
to employ civil remedies to secure the collection of a criminal fine.
18 U.S.C. 3613.  The VWPA also specifies that fact-finding respecting
the "proper amount or type of restitution shall be resolved by the
court by the preponderance of the evidence." Section 3580(d).  As
discussed, p. 45, infra, such a standard of proof traditionally has
been associated with a court's determination of factual information
relevant to the fixing of sentence and has been approved by this Court
as consistent with due process requirements for imposition of criminal
punishment.  See McMillan v. Pennsylvania, 477 U.S. 79 (1986).

   This Court in Kelly v. Robinson, 479 U.S. at 53 n.14, explicitly
recognized that restitution orders imposed in the context of state
criminal sentencing proceedings were penal, not civil, sanctions, and
noted, with apparent approval, the unanimous view of the federal
courts that restitution under the VWPA is a criminal penalty.  The
legislative history of the VWPA supports the characterization of an
order of restitution as a penal sanction.  The manager and principal
sponsor of the House bill, H.R. 7191, 97th Cong., 2d Sess. (1982),
stated in Congressional debate that the legislation "makes restitution
available as a penalty." 128 Cong. Rec. 26,348 (1982) (statement of
Rep. Rodino).  The section-by-section analysis of the House bill,
prepared by the House Judiciary Committee, states that the bill
"authorizes the court to order restitution in lieu of or in addition
to any other penalty imposed, and thereby explicitly recognizes the
importance of restitution as a criminal sanction," 128 Cong. Rec.
26,352 (1982).

   /36/ See also McMillan v. Pennsylvania, supra (potentially criminal
conduct for which a defendant has neither been charged nor convicted
can constitutionally be considered during the sentencing phase in
fixing the magnitude of a sentence);  Williams v. New York, 337 U.S.
241, 246-251 (1949) (Court permitted the sentencing judge to consider
the offender's "history of prior antisocial conduct including
burglaries for which he had not been duly convicted," United States v.
Grayson, 438 U.S. at 54).

   /37/ In addition, at the hearing on his plea, petitioner received
notice that restitution might be ordered, as required by Fed. R. Crim.
P. 11(c)(1) (before accepting a plea of guilty, judge must notify
defendant "that a court may * * * order the defendant to make
restitution to any victim of the offense").  Although Rule 11(c)(1)
requires that the defendant be informed that restitution may be
ordered, the judge need not specify the exact amount of restitution
before accepting the plea.  See Rule 11 advisory committee note to
1985 Amendment ("Because (the VWPA) contemplates that the amount of
the restitution to be ordered will be ascertained later in the
sentencing process, this amendment to Rule 11(c)(1) merely requires
that the defendant be told of the court's power to order restitution.
The exact amount or upper limit cannot and need not be stated at the
time of the plea.");  see also United States v. Berrios, 869 F.2d at
30-31.

   The judge told petitioner at his plea hearing that he might be
required to "make restitution in the form of money for any property
loss suffered by the victim as a result of this offense."" J.A. 9.
Thus, petitioner received notice that restitution might be part of his
sentence, as required by Rule 11(c)(1).  To the extent that petitioner
might complain that the judge's remark misled him as to the terms of
sentence (by implying that the order would only include restitution
for a loss resulting from the actual offense of conviction), his
objection must necessarily be directed at the adequacy of the notice
he received under Rule 11, or, on the theory that the judge's remarks
constituted a definite "promise" as to his sentence, an objection
based on breach of the plea agreement.  The judge's remark as to the
magnitude of restitution can have no bearing on the judge's statutory
power under the VWPA to impose an order of restitution that takes into
account harms caused by petitioner's related conduct.  In any event,
since petitioner has never argued in the course of this litigation
that his sentence was imposed in violation of Rule 11, or that the
government breached its plea agreement, any such objections are not
properly before this Court.

   Rule 11 also makes clear that the issue of restitution need not be
addressed or resolved at the plea negotiation stage.  See Rule
11(e)(1)(A)-(C).  Thus, the failure of the parties to the plea
agreement to address restitution prior to the plea hearing does not
render petitioner's plea invalid under Rule 11.

   /38/ Petitioner need not have acceded to a stipulation of testimony
in this case.  He might have called witnesses of his own to undermine
the basis of the proposed restitution order;  he might even have
called the government's witnesses.  So long as petitioner's request to
rebut the government's showing of the type and amount of appropriate
restitution was reasonably justified, the sentencing court would be
constrained to grant the request, or to determine that the requested
proceedings would "unduly complicate or prolong the sentencing
process" under Section 3579(d) and limit the restitution order
accordingly.

   If petitioner fails to make restitution as ordered, separate due
process protections will accompany any consideration of sanctions.
Section 3579(g).  These will include a consideration whether his
failure to make restitution was the result of his indigence (in which
event it would be excusable) or was the result of his willful failure
to pay despite having acquired some financial resources during the 13
years in which the restitution order remains outstanding.

   APPENDIX