United States of America v. Benjamin Franklin Pass

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4626
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BENJAMIN FRANKLIN PASS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Dever III,
Chief District Judge. (7:12-cr-00085-D-1)
Submitted: June 30, 2015 Decided: July 29, 2015
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Robert E. Waters,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Phillip A. Rubin, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Benjamin Franklin Pass appeals the district court’s
imposition of restitution after he pleaded guilty to, inter
alia, failing to notify the Environmental Protection Agency of
his involvement in waste activities and unlawfully diluting
contaminated oil, both in violation of the Toxic Substances
Control Act, 15 U.S.C.A. §§ 2601-2695d (West 2009 & Supp. 2015),
and aiding and abetting those crimes in violation of 18 U.S.C.
§ 2 (2012). On appeal, Pass does not challenge the restitution
amounts but argues that the district court was without authority
to order restitution to entities that Pass claims are not
victims of his crimes. Finding no error, we affirm.
“We review a district court’s restitution order for abuse
of discretion.” United States v. Freeman, 741 F.3d 426, 431
(4th Cir. 2014). The district court imposed restitution
pursuant to the Victim and Witness Protection Act (VWPA), 18
U.S.C. § 3663 (2012), which allows a sentencing court to order a
defendant convicted of any Title 18 offense to make restitution
“to any victim of such offense.” 18 U.S.C. § 3663(a)(1)(A).
“[T]he 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. § 3663(a)(2).
Restitution is appropriate only for victims harmed by “conduct
underlying an element of the offense of conviction, or an act

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taken in furtherance of a scheme, conspiracy, or pattern of
criminal activity that is specifically included as an element of
the offense of conviction.” United States v. Blake, 81 F.3d
498, 506 (4th Cir. 1996).
Pass contends that the district court erred in ordering him
to make restitution to the EPA, AIG Special Insurance, and
Colonial Oil Industries, Inc. However, it is evident from the
record that Pass’s failure to notify the EPA of a serious
contamination led to Colonial unknowingly purchasing a large
amount of contaminated oil from Pass. As a direct result of
this purchase, Colonial incurred substantial losses when it was
forced to destroy the contaminated oil and undertake significant
cleanup efforts. Pass’s insurer, AIG, made payouts to Colonial
because of the contaminated oil and, thus, also was directly
harmed by Pass’s failure to notify the EPA. Finally, the EPA
was harmed by Pass’s unlawful oil dilution practices, which
spread contaminants throughout Pass’s facility and caused the
EPA to expend additional costs to clean up the site than would
have been necessary had no dilution occurred. Because all three
victims were directly and proximately harmed by the criminal
conduct for which Pass was convicted, the district court did not
abuse its discretion in ordering Pass to make restitution to
them.

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Accordingly, we affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED

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