United States of America v. William Quillen

PRECEDENTIAL
Filed July 10, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3059
UNITED STATES OF AMERICA
v.
WILLIAM QUILLEN,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 02-cr-00003E)
District Judge: Honorable Sean J. McLaughlin
Argued March 14, 2003
Before: BECKER,* Chief Judge, RENDELL and AMBRO,
Circuit Judges.
(Opinion filed July 10, 2003)
* Judge Becker concluded his term as Chief Judge on May 4, 2003.

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Shelley Stark
Federal Public Defender
Thomas W. Patton (Argued)
Assistant Federal Public Defender
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501
Attorneys for Appellant
Mary Beth Buchanan
United States Attorney
Christine A. Sanner (Argued)
Assistant United States Attorney
Bonnie R. Schlueter
Office of United States Attorney
633 United States Post Office
& Courthouse
Pittsburgh, PA 15219
Marshall J. Piccinini
Office of United States Attorney
100 State Street, Suite 302
Erie, PA 16507
Attorneys for Appellee
OPINION OF THE COURT
AMBRO, Circuit Judge:
William Quillen, while an inmate in the Pennsylvania
prison system, mailed to the state parole board a
threatening letter that contained a powdery substance.
Suspecting it was anthrax (it was not), the authorities’
response included a cleanup by a hazardous materials
(“hazmat”) team. After Quillen pleaded guilty, the District
Court approved the Government’s request for approximately
$4,000 in restitution costs. Quillen appeals, asserting that
the relevant federal statute does not authorize restitution in
these circumstances where his conduct did not actually
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damage the victim’s property. We reject this argument, and
affirm the District Court’s decision.1
I.
On October 19, 2001, the headquarters of the
Pennsylvania Board of Probation and Parole in Harrisburg
received an envelope bearing the return address of Edward
Nicholas at the State Correctional Institution (SCI) in
Albion, Pennsylvania, where Nicholas was an inmate. When
a Parole Board staffer opened the envelope, a white,
powdery substance spilled out from a letter that stated:
“For your information I would like to point out how easy it
is to eliminate the entire board. You need to be more
careful when dealing with us, when determining us for
parole. The wrong person could do some drastic things.” In
October 2001, bioterror attacks involving anthrax-laced
letters had taken place in Florida, Washington, D.C., and
New Jersey, killing four people.2 Because of heightened
concern over anthrax mail attacks, the Parole Board area
was sealed off and the Harrisburg police and fire
departments responded along with the Dauphin County
Hazardous Materials Team.
Officials at SCI-Albion launched an investigation and
began by interviewing Nicholas, the ostensible author of the
letter. He denied any involvement, but opined that another
inmate may have sought retaliation for Nicholas’s having
exposed a scheme in which prisoners exchanged
sandwiches smuggled from the kitchen for cigarettes.
Nicholas named three inmates with the motive to frame
him, including Quillen. Investigators interviewed Quillen on
October 22nd and he admitted writing the letter, placing
baby powder and powdered sugar in the envelope, and
1. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)(1) and 28 U.S.C.
§ 1291.
2. As noted by one federal court in an action involving postal employees
and safety issues arising from the October 2001 anthrax mailings,
“[a]lthough limited in scope, these unpredictable and grave attacks set
the nation on edge.” Miami Area Local, Am. Postal Workers Union, AFL-
CIO v. United States Postal Serv., 173 F. Supp. 2d 1322, 1324 (S.D. Fla.
2001).
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mailing it to the Parole Board in an effort to have Nicholas
punished.
Quillen was charged in the Western District of
Pennsylvania with mailing a threatening communication, in
violation of 18 U.S.C. §§ 876 and 2(b). Pursuant to the
Mandatory Victims Restitution Act (MVRA), 18 U.S.C.
§ 3663A, the Parole Board filed a victim impact statement
seeking $1,175.00 for salaries and benefits, $4,026.55 for
hazmat clean-up costs, $122.00 for reimbursement for
damaged personal property, and $9,991.50 for a specially
designed mail room. Quillen objected to all except the
$122.00 reimbursement for damaged personal property.
The Government adjusted the statement, determining that
only $42.75 in overtime pay was appropriate and that the
cost of constructing the new mail room should not be
included in the restitution order. But it reiterated that the
full $4,026.55 in hazmat clean-up charges was directly
attributable to Quillen’s actions, and therefore
compensable. In sum, the Government sought restitution in
the amount of $4,191.30 ($42.75 in overtime salaries,
$4,026.55 in hazmat clean-up costs, and $122.00 to
reimburse damaged personal property).
At his sentencing hearing, Quillen again challenged the
amount of the Government’s request. The District Court
disallowed the overtime pay as a consequential loss not
covered by the MVRA, but found that the hazmat clean-up
cost was an actual loss suffered by the victim and thus
recoverable as restitution. Accordingly, the District Court
imposed costs of $4,148.55.3
“We review a restitution order ‘under a bifurcated
standard: plenary review as to whether restitution is
permitted by law, and abuse of discretion as to the
appropriateness of the particular award.’ ” United States v.
Simmonds, 235 F.3d 826, 829 (3d Cir. 2000) (quoting
United States v. Crandon, 173 F.3d 122, 125 (3d Cir.
1999)). Quillen challenges only the legality of the restitution
3. The District Court also sentenced Quillen to a 40-month term of
imprisonment, to run consecutive to his current imprisonment, followed
by three years of supervised release.
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order and not the amount of the award; thus our review is
plenary.
II.
“As its name suggests, the Mandatory Victims Restitution
Act, which was enacted by Congress in 1996, mandates
that defendants who are convicted of or plead guilty to
certain crimes pay restitution to their victims.” Id. at 830.
The purpose of the statute is, “to the extent possible, to
make victims whole, to fully compensate victims for their
losses, and to restore victims to their original state of well-
being.” Id. at 831. Under the MVRA, “the term ‘victim’
means a person directly and proximately harmed as a
result of the commission of an offense for which restitution
may be ordered . . . .” 18 U.S.C. § 3663A(a)(2). In offenses
involving the damage or loss of the victim’s property, the
restitution order shall require that the defendant return the
property or, if return is impossible, “pay ‘an amount equal
to the greater of the value of the property on the date of the
damage, loss, or destruction; or the value of the property on
the date of the sentencing, less the value (as of the date the
property is returned) of any part of the property that is
returned.” Simmonds, 235 F.3d at 830 (quoting 18 U.S.C.
§ 3663A(b)(1)(B)). Because the property damaged in this
case — the Parole Board’s mail room — was not taken,
obviously its “return” could not be ordered. Thus the
District Court’s only practical option was to order Quillen to
pay the cost of ensuring that the mail room was in the
same condition as just prior to the time it became
unusable.
We have interpreted § 3663A(b)(1) not to authorize
“consequential damages.” Id. at 833 (citing Gov’t of Virgin
Islands v. Davis, 43 F.3d 41, 45 (3d Cir. 1994)). Instead,
restitution must be limited to “an amount pegged to the
actual losses suffered by the victims of the defendant’s
criminal conduct,” and “based upon losses directly resulting
from such conduct.” Davis, 43 F.3d at 45 (quoting United
States v. Barany, 884 F.3d 1255, 1260, 1261 (9th Cir.
1989)).4 Quillen’s argument, stated simply, is that his
4. Our decision in Davis involved restitution ordered under the MVRA’s
companion statute, the Victim and Witness Protection Act, 18 U.S.C.
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conduct did not “actually damage” the Parole Board’s mail
room. After all, the substance he enclosed in the envelope,
baby powder and powdered sugar, literally was harmless
and effected no contamination. As a result, he contends,
the hazmat clean-up costs incurred by the Parole Board
constitute consequential damages, and the District Court’s
restitution order cannot be supported by § 3663A(b)(1).
Quillen relies heavily on United States v. Mitchell, 876
F.2d 1178 (5th Cir. 1989), for the proposition that the costs
of restoring property to its pre-offense condition may not be
recovered under the MVRA. The defendant in Mitchell was
convicted of offenses involving three stolen trucks. The
District Court ordered the defendant to pay restitution to
the victims (the vehicle owners). Though some of the
victims were reimbursed by their insurance policies, the
District Court awarded restitution in varying amounts; e.g.,
the difference in the value of the trucks at the time of the
theft and the time they were returned, lost income, the cost
to restore one of the trucks to working condition, and
attorney’s fees. The Fifth Circuit held that the restitution
award was incorrect.
Section 3663(b)(1) limits restitution in property cases
to return of the property or, if that is inadequate, to the
value of the property when stolen less its value when
returned. There is no provision authorizing restitution
for lost income, cost of restoring property to its pre-theft
condition, or cost of employing counsel to recover from
an insurance company.
Id. at 1184 (emphasis added). Seizing on this language,
Quillen argues that the restitution award in this case — the
cost of restoring the mail room to its pre-offense condition
— similarly is not authorized by § 3663A(b)(1).
§ 3663. Id. at 44-45. However, the “language of § 3663(b)(1) (the VWPA)
and § 3663A(b)(1) (the relevant portion of the MVRA) is identical in all
relevant respects. Therefore, absent unique and highly persuasive MVRA
legislative history, of which there is none, Third Circuit cases
interpreting the language of § 3663(b)(1) control . . . .” Simmonds, 235
F.3d at 830-31 n.2.
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We note, however, the decisions of other courts (in cases
involving damaged but not stolen property) that approve
restitution for repair costs, provided the victim is not
compensated twice for the same injury. For example, in
United States v. Sharp, 927 F.2d 170 (4th Cir. 1991), the
defendants, striking mineworkers, were ordered to pay
restitution for damage caused by a bomb they detonated
near the entrance to a mine site. The District Court
imposed restitution for the replacement cost of the
damaged property, the cost of supplies and labor to make
the repairs, taxes on the payroll, and loss of income. The
Fourth Circuit relied on Mitchell and remanded for the
District Court to remove the costs of lost income from the
restitution award, but it affirmed the award of repair costs.
[The defendants] also argue that the inclusion of the
cost of repairs was improper. We disagree. The
language of the statute provides that the defendant
must pay an amount equal to the value of the property
on the date of the damage. Defendants assert that the
value of the property was $30,000, which represents
the replacement cost of the fan. This value, however,
fails to take into account the fact that the fan that was
damaged had been installed as part of the mine
property. Moreover, other parts of the mine property,
including the mine itself, were damaged. The district
court properly took into account the entire amount of
damage to all the property injured as a result of the
bombing. Therefore, the inclusion of repair costs was
not error.
Id. at 174.
More recently, in United States v. Menza, 137 F.3d 533
(7th Cir. 1998), the defendant pleaded guilty to various
drug offenses related to a laboratory in his apartment that
was discovered when fire rescue personnel were summoned
for a medical emergency. After the defendant was taken to
the hospital, the responding officer, wary of the chemicals
and equipment in the home lab, called a hazmat team. It
arrived and secured the site — capping potentially explosive
materials, ensuring all other chemicals were sealed, etc. —
and left the scene closed until other law enforcement
officers returned with a search warrant. A DEA agent later
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searched the premises pursuant to a warrant and removed
certain evidence of contraband. According to DEA
regulations, all other items, including chemicals both
hazardous and ordinary, were turned over to an
independent environmental clean-up company for
destruction and disposal. The owner of the apartment also
incurred additional clean-up and replacement costs. The
District Court later imposed restitution costs for all of the
expenses of the chemical disposal company and many of
the clean-up expenses of the landlord. Id. at 534-36.
The Seventh Circuit remanded for the District Court to
determine several missing findings made necessary by the
following restitution principles. First, restitution may be
ordered only for costs that were directly related to the
crimes charged in the information and, second, the
Government must provide sufficient documentation and
explanation for the victims’ claimed losses. Id. at 538-39.
Third, noting that many courts have held investigatory
costs are not compensable as restitution, the Seventh
Circuit directed the District Court to consider whether the
DEA’s costs to clean up, destroy, and dispose of the
chemicals “were matters of routine policy and procedure
within the agency, which may prevent recovery, or whether
the costs incurred were unique to this case and accrued
solely and directly as a result of Menza’s criminal conduct.”
Id. at 539. Finally, the landlord had hired an environmental
company to address the alleged contamination in the
apartment, and sought reimbursement for this expense.
But “both the DEA and [the landlord] submitted costs for
what appears to be similar assessment and/or clean-up
procedures. If the district court finally determines that
Menza is liable for some or all of the environmental
assessment and clean-up costs, he should bear that
burden only once and not twice.” Id. In other words, in its
remand order the Menza Court implicitly approved
restitution for clean-up costs, so long as the defendant was
not required to pay duplicate expenses.
Quillen has attempted to distinguish his case from Sharp
and Menza. He argues Sharp does not instruct us because
it was undisputed that the explosives used by the striking
mineworkers actually damaged the victim’s property.
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Quillen also contends that the Government’s reliance on
Menza is misplaced because it stands for the proposition
that before ordering restitution a district court must
determine (i) whether any actual damage has occurred, and
(ii) whether the claimed clean-up costs were necessary and
reimbursed only once. To that end, he asserts for the first
time in his reply brief that the Government has
mischaracterized the facts of this case when it claims that
restitution was for the costs incurred by the Dauphin
County hazmat team. Quillen notes that the Dauphin
County hazmat team did respond to the anthrax threat, but
the invoice for clean-up expenses that the Government
submitted to the District Court was for services rendered by
Palmer Construction Company. The record is silent, he
argues, as to why clean-up efforts were needed beyond
those provided by the County hazmat team, which is
relevant because the Government’s claim assumes there
was not a duplicative decontamination effort. Accordingly,
Quillen requests that we vacate the restitution order and
remand for an evidentiary hearing to determine whether the
Board’s property actually was contaminated by Quillen’s
conduct and, if so, whether the expense incurred in the two
cleanups — the first by the Dauphin County hazmat team,
the second by Palmer Construction — is recoverable.
Quillen’s latter argument — his alternate request for
remand — is untenable. As a procedural matter, arguments
not raised in an appellant’s opening brief are deemed
waived. Abdul-Akbar v. McKelvie, 239 F.3d 307, 316 n.2 (3d
Cir. 2001) (en banc). But even analyzed on equitable
grounds, this is not a compelling claim for relief. Prior to
Quillen’s sentencing, the Government submitted to the
District Court an invoice from Palmer Construction
Company itemizing the supplies necessary to
decontaminate the mail room as well as the cost breakdown
between materials ($2,001.55) and labor ($2,025.00 for
40.5 hours).5 The District Court ordered Quillen to pay the
5. At oral argument Quillen’s counsel pointed out that this invoice was
dated October 19, 2001, the same day the Parole Board opened the
letter, and thus was only the estimated cost of the cleanup. But the
Government at oral argument produced a second invoice, dated January
29, 2002, from Palmer Construction billing the Parole Board $4,026.55
(as estimated) for the emergency hazmat cleanup of suspected anthrax
completed on October 19, 2001.
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Parole Board for a single hazmat clean-up expense of
$4,026.55, thus indicating that the Government did not
seek a duplicative reimbursement for the expenses of the
Dauphin County Hazardous Materials Team and that
Quillen properly bore this burden but once.
Quillen’s substantive arguments are likewise
unpersuasive. Most significantly, the linchpin of his appeal
— that only “actual damages” are compensable under the
MVRA — is not supported by that statute or the caselaw
interpreting it. Quillen asserts that the plain language of
the MVRA, which allows restitution only “in the case of an
offense resulting in damage to . . . property of a victim of
the offense,” 18 U.S.C. § 3663A(b)(1), precludes recovery in
this circumstance, where his conduct did not damage the
victim’s property. We disagree. “Damage” is commonly
understood to be “something done or suffered that reduces
the value or usefulness of the thing affected or spoils its
appearance.” Oxford American Dictionary 214 (1980). There
is no question that Quillen’s ostensible contamination of
the Parole Board’s mail room effectively eliminated that
facility’s usefulness until proved to be contamination free.
Moreover, we have construed the MVRA as limiting
restitution to “actual losses . . . directly resulting” from the
defendant’s criminal conduct. Davis, 43 F.3d at 45.6 Were
it not for Quillen’s letter and its contents (though
thankfully benign), the Parole Board would never have
conceived of the need to enlist hazmat services in its mail
room. But for Quillen’s conduct, the Parole Board would
not have incurred an actual loss of $4,026.55, the cost of
decontaminating a room believed to be tainted by a deadly
substance.
To cap matters, Quillen’s proffered actual damages
standard has little real-world value, especially here, where
6. One could argue that “damages” and “losses,” though intuitively
synonymous, are dissimilar. The argument would be that the mail room
was not actually damaged, but that the Parole Board incurred expenses
(losses) to confirm that was the case. But this cuts too fine a line. For
under our facts, damages and losses are treated the same analytically.
They must be actual (not mere possibilities) and directly attributable to
the criminal conduct. The hazmat costs are both.
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the victim cannot know whether the damage is actual until
after it is incurred; i.e., the claim that his conduct did not
actually damage the Parole Board’s property can only be
made in hindsight. His letter was opened, and the fake
anthrax dispersed, on October 19, 2001. Immediately the
area was sealed off, clean-up efforts initiated, and the
material sent for testing. Quillen admitted the real nature
of the substance on October 22nd, but the test results did
not confirm it was harmless until October 26th.7 For
obvious reasons the Parole Board did not wait until this
time to decontaminate its mail room. Granted, the Parole
Board hired a private contractor to perform emergency
hazmat services on a mess that ultimately could have been
removed with a broom and dustpan. But Quillen’s
argument — that the expense of this expeditious (but in
hindsight literally unnecessary) response did not result in
an actual loss directly resulting from his conduct — ignores
the exigencies of the situation, that this fake attack
occurred at the same time real anthrax mailings were
causing fatalities elsewhere (not to mention that it occurred
on the heels of the September 11, 2001 terrorist attacks).
* * * * *
We reiterate that restitution must be limited to “an
amount pegged to the actual losses suffered by the victims
of the defendant’s criminal conduct,” and “based upon
losses directly resulting from such conduct.” Davis, 43 F.3d
at 45. We also agree with those courts that hold clean-up
or repair costs may be ordered under the MVRA, provided
the defendant is not required to compensate the victim
twice for the same loss. See Menza, 137 F.3d at 539; Sharp,
927 F.2d at 174. Applying these principles, the restitution
ordered by the District Court was proper. The itemized
invoices of the services provided by Palmer Construction
establish that the clean-up expense borne by the Parole
7. We are mindful that the Parole Board employees exposed to the letter’s
contents had to endure for at least three days the apprehension that
their lives were at risk, and it would be another four days before
authorities could verify Quillen’s assurance that the substance was fake.
This form of loss may not be readily quantified, but it is not any less
actual.
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Board was an actual loss directly resulting from Quillen’s
conduct. In addition, there is no evidence indicating the
Parole Board is to be reimbursed by Quillen for the costs of
both the Dauphin County hazmat team and Palmer
Construction. Accordingly, we affirm the judgment of the
District Court.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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