Robert Mems v. City of St. Paul

1 The Hon. Richard H. Kyle, United States District Judge for the District of
Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 02-2787MN
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United States of America, *
*
Appellee, *
* On Appeal from the United
v. * States District Court
* for the District of
* Minnesota.
Richard William Johnson, *
*
Appellant. *
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Submitted: February 14, 2003
Filed: April 29, 2003
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Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
___________
RICHARD S. ARNOLD, Circuit Judge.
The defendant, Richard W. Johnson, appeals the District Court’s 1 imposition
of a restitution order on the ground that it does not properly take into account his pre-
existing bankruptcy plan. We review the District Court’s decision for plain error,
because this argument was not made below. We hold that the District Court did
appropriately take into account the defendant’s bankruptcy obligations when ordering

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restitution. Thus, there was no plain error, and the order of the District Court is
affirmed.
I.
Mr. Johnson owned and operated a small business in Minnesota throughout the
1990's. To support his business, he fraudulently obtained loans from the North Shore
Bank of Commerce. That device only delayed his eventual Chapter 13 bankruptcy,
which he filed for in 2000. The Bankruptcy Court determined that the defendant
owed creditors $216,508–three-quarters of which was owed to North Shore Bank–and
ordered him to pay $400 a month to his creditors.
On account of his fraudulent statements to the bank, Mr. Johnson was indicted
in 2001. He pleaded guilty to two counts: bank fraud, 18 U.S.C. § 1344, and making
false statements to a financial institution, 18 U.S.C. § 1014. The District Court found
that the defendant owed $102,144.81 in restitution to North Shore Bank. This was
to be paid in monthly installments of at least $150 for sixty months once Mr. Johnson
had served his prison term of twelve months and a day. At the time the restitution
order was entered, the defendant did not raise the question of whether consideration
of his bankruptcy obligations was reflected in the restitution order.
II.
The defendant did not challenge the District Court’s decision to order
restitution payments in addition to the payments the defendant had to make to satisfy
the Bankruptcy Court; therefore, our review of the District Court’s decision is for
plain error. United States v. Fletcher, 322 F.3d 508, 516 (8th Cir. 2002). Thus we
look for an error so obvious that to ignore it would seriously undermine the integrity
of judicial proceedings. Id.

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The law requires that a district court take into account a defendant’s ability to
pay when setting a schedule for restitution payments. 18 U.S.C. § 3664. In essence,
Mr. Johnson argues that because the District Court’s order does not explicitly discuss
his bankruptcy obligations, it should be assumed that the District Court did not take
those obligations into account, as § 3664 requires. We disagree.
The District Court had before it Mr. Johnson’s pre-sentence report, which
contained details of his Chapter 13 bankruptcy and the payment plan ordered by the
Bankruptcy Court. The District Court must have given consideration to Mr.
Johnson’s overall fiscal state, because the Court declined to impose a fine on the
defendant on account of his inability to pay it, a conclusion which could be reached
only after considering what the defendant owned and what he owed. The defendant
admits that he called the District Court’s attention to his bankruptcy obligations.
Indeed, the size of the restitution award itself suggests that it was meant to operate
in tandem with the bankruptcy payments rather than to replace them.
After taking all of this into consideration, we believe it certain that the District
Court gave full consideration to Mr. Johnson’s economic circumstances when
determining the rate at which he would have to make restitution. There was no plain
error here. Therefore, the decision of the District Court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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