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    United States v. Glisson, 4th Cir. (2010)

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    The United States Court of Appeals for the Fourth Circuit affirmed Joyce Glisson's conviction for embezzlement but vacated the restitution order and remanded it to the district court to modify the order. Specifically, the appeals court found that while the third party loan recipient was entitled to restitution, the order must specify that the victim bank be fully repaid before any restitution is paid to the third party. The appeals court also found that the district court properly considered Glisson's ability to pay restitution based on the presentence report.

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    Public Domain
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    United States v. Glisson, 4th Cir. (2010)

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    Scribd Government Docs
    25 views6 pages
    The United States Court of Appeals for the Fourth Circuit affirmed Joyce Glisson's conviction for embezzlement but vacated the restitution order and remanded it to the district court to modify the order. Specifically, the appeals court found that while the third party loan recipient was entitled to restitution, the order must specify that the victim bank be fully repaid before any restitution is paid to the third party. The appeals court also found that the district court properly considered Glisson's ability to pay restitution based on the presentence report.

    Original Description:

    Filed: 2010-12-16 Precedential Status: Non-Precedential Docket: 10-4290

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    The United States Court of Appeals for the Fourth Circuit affirmed Joyce Glisson's conviction for embezzlement but vacated the restitution order and remanded it to the district court to modify the order. Specifically, the appeals court found that while the third party loan recipient was entitled to restitution, the order must specify that the victim bank be fully repaid before any restitution is paid to the third party. The appeals court also found that the district court properly considered Glisson's ability to pay restitution based on the presentence report.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    25 views6 pages

    United States v. Glisson, 4th Cir. (2010)

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Fourth Circuit affirmed Joyce Glisson's conviction for embezzlement but vacated the restitution order and remanded it to the district court to modify the order. Specifically, the appeals court found that while the third party loan recipient was entitled to restitution, the order must specify that the victim bank be fully repaid before any restitution is paid to the third party. The appeals court also found that the district court properly considered Glisson's ability to pay restitution based on the presentence report.

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    of 6

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 10-4290

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    JOYCE GAYNELL GLISSON,
    Defendant - Appellant.

    Appeal from the United States District Court for the District of
    South Carolina, at Charleston.
    Patrick Michael Duffy, Senior
    District Judge. (2:09-cr-00459-PMD-2)

    Submitted:

    November 9, 2010

    Decided:

    December 16, 2010

    Before WILKINSON, NIEMEYER, and WYNN, Circuit Judges.

    Affirmed in part; vacated and remanded in part by unpublished


    per curiam opinion.

    Guy J. Vitetta, VITETTA LAW GROUP, Daniel Island, South


    Carolina, for Appellant. William N. Nettles, United States
    Attorney, Alston C. Badger, Assistant United States Attorney,
    Charleston, South Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Joyce Gaynell Glisson pleaded guilty to embezzlement
    from a federally-insured bank, in violation of 18 U.S.C. 656
    (2006).

    After Glisson embezzled the funds from her employer,

    Citizens Bank, she obtained a loan from a third party, Robert


    Player, and used that money to repay some of the embezzled funds
    to the bank.

    The district court sentenced Glisson to fifteen

    months of imprisonment and ordered that she pay restitution to


    the

    bank

    and

    to

    Player.

    Glisson

    appeals,

    arguing

    that

    the

    district court erred in ordering restitution to the third party.


    For

    the

    vacate

    reasons
    the

    order

    that
    of

    follow,

    we

    restitution

    affirm
    with

    the

    conviction,

    instructions

    that

    but
    the

    district court modify the order.


    Glisson first argues that the district court erred in
    awarding restitution to Player as he was not a victim of her
    offense.

    We review a restitution order for abuse of discretion.

    United States v. Hoyle, 33 F.3d 415, 520 (4th Cir. 1994).


    the

    Mandatory

    3663A-3664

    Victims
    (2006),

    Restitution
    the

    district

    Act

    (MVRA),

    court

    must

    18

    Under
    U.S.C.

    order

    the

    defendant to make restitution to victims of an offense against


    property.

    18 U.S.C. 3663A(a), (c)(1)(A)(ii).

    A victim is

    defined as
    [A] person directly and proximately harmed as a result
    of the commission of an offense for which restitution
    may be ordered including, in the case of an offense
    2

    that involves as an element a scheme, conspiracy, or


    pattern of criminal activity, any person directly
    harmed by the defendants criminal conduct in the
    course of the scheme, conspiracy or pattern.
    18 U.S.C. 3663A(a)(2).

    Moreover, the MVRA authorize[s] an

    award of restitution only for the loss caused by the specific


    conduct

    that

    is

    the

    basis

    of

    the

    offense

    of

    conviction.

    United States v. Blake, 81 F.3d 498, 506 (4th Cir. 1996).


    Here, the offense of conviction was embezzlement under
    656.

    Section

    656

    makes

    it

    crime

    for

    an

    employee

    of

    federally-insured bank to embezzle, abstract, or misapply any


    funds of the bank.

    18 U.S.C. 656.

    For a violation of 656 to be proved, the Government


    must show, in addition to the status of both the bank
    and the defendant, that the defendant acted willfully,
    that [she] misapplied [or embezzled] funds, . . .
    belonging to or intrusted to the custody of the bank
    and that [she] did so with the intent to injure or
    defraud the bank.
    United States v. Duncan, 598 F.2d 839, 858 (4th Cir. 1979).
    Accordingly, as Glissons embezzlement was complete prior to her
    obtaining
    contain

    as

    funds

    from

    an

    element

    Player,
    a

    and

    scheme,

    as

    embezzlement

    conspiracy,

    or

    does
    pattern

    not
    of

    criminal activity, see Blake, 81 F.3d at 506 (the act that


    harms

    the

    element

    of

    furtherance
    activity

    individual
    the
    of

    that

    must

    offense
    a

    is

    scheme,

    be

    of

    either

    conduct

    conviction,

    conspiracy,

    specifically

    included

    or

    or
    as

    an

    underlying

    an

    act

    in

    pattern
    an

    taken

    of

    element

    criminal
    of

    the

    offense

    of

    conviction),

    Player

    was

    not

    victim

    within

    the

    meaning of the MVRA.


    However, the Government correctly argues that Player
    is entitled to restitution under 18 U.S.C. 3664(f)(1) (2006).
    If a victim has received compensation from insurance
    or any other source with respect to a loss, the court
    shall order that restitution be paid to the person who
    provided or is obligated to provide the compensation,
    but the restitution order shall provide that all
    restitution of victims required by the order be paid
    to the victims before any restitution is paid to such
    a provider of compensation.
    18 U.S.C. 3664(f)(1).

    Here, as Player compensated Citizens

    Bank for some of the loss resulting from Glissons embezzlement,


    the district court properly awarded restitution to Player.

    See

    United States v. Smith, 395 F.3d 316, 319 (4th Cir. 2005) (this
    court

    may

    affirm

    on

    any

    grounds

    apparent

    from

    the

    record).

    However, as the statute unambiguously directs that victims be


    paid the full amount of restitution to which they are due before
    restitution

    is

    paid

    to

    persons

    who

    provide

    compensation

    to

    victims for their loss, the order of restitution should have


    specified that the restitution must be fully paid to Citizens
    Bank before any restitution is paid to Player.
    Glisson next argues that the court erred in failing to
    examine

    the

    statutory

    factors

    before ordering restitution.


    the

    district

    court

    must

    regarding

    her

    We disagree.

    issue

    an

    order

    ability

    to

    pay

    Under 3663A(d),
    of

    restitution

    in

    accordance with 3664.

    18 U.S.C. 3663A(d).

    Section 3664(a)

    provides that, for restitution orders, the court shall order


    that

    the

    probation

    presentence

    officer

    report

    must

    sufficient

    include

    for

    information

    the

    court

    to

    in

    the

    determine

    restitution, including, to the extent practicable, a complete


    accounting of the losses to each victim, any restitution owed
    pursuant to a plea agreement, and information relating to the
    economic circumstances of each defendant.

    18 U.S.C. 3664(a).

    Moreover, although a district court must make factual


    findings
    States v.

    with

    regard

    Davenport,

    to
    445

    the

    statutory

    F.3d

    366,

    factors,

    373

    (4th

    see

    United

    Cir.

    2006),

    overruled on other grounds, Irizarry v. United States, 553 U.S.


    708 (2008), [t]he district court may satisfy this requirement
    by announcing its findings on the record or by adopting adequate
    proposed

    findings

    contained

    within

    Blake, 81 F.3d at 505 (citation omitted).

    presentence

    report.

    Here, the probation

    officer included the necessary information in the presentence


    report, and the district court explicitly adopted those findings
    at the sentencing hearing.

    Therefore, the court did not fail to

    consider the statutory factors prior to awarding restitution.


    Accordingly, we affirm the judgment of the district
    court in part, but also vacate the judgment in part and remand
    with instructions that the district court modify the order of
    restitution to provide that Citizens Bank be paid in full prior
    5

    to restitution being paid to Player.

    We dispense with oral

    argument because the facts and legal contentions are adequately


    presented in the materials before the court and argument would
    not aid the decisional process.
    AFFIRMED IN PART;
    VACATED AND REMANDED IN PART

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