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SUPREME COURT OF THE UNITED STATES
_________________
No. 16–1519
_________________
SERGIO FERNANDO LAGOS, PETITIONER
v.
UNITED STATES
on writ of certiorari to the united states
court of appeals for the fifth circuit
[May 29, 2018]
Justice Breyer delivered the opinion of the
Court.
The Mandatory Victims Restitution Act of 1996
requires defendants convicted of a listed range of offenses to
“reimburse the victim for lost income and
necessary child care, transportation, and other expenses
incurred during participation in the investigation or
prosecution of the offense or attendance at proceedings related to
the offense.” 18 U. S. C. §3663A(b)(4) (emphasis
added).
We must decide whether the words “investigation”
and “proceedings” are limited to government investigations and
criminal proceedings, or whether they include private
investigations and civil proceedings. In our view, they are limited
to government investigations and criminal proceedings.
I
The petitioner, Sergio Fernando Lagos, was
convicted of using a company that he controlled (Dry Van Logistics)
to defraud a lender (General Electric Capital Corporation, or GE)
of tens of millions of dollars. The fraud involved generating false
invoices for services that Dry Van Logistics had not actually
performed and then borrowing money from GE using the false invoices
as collateral. Eventually, the scheme came to light. Dry Van
Logistics went bankrupt. GE investigated. The Government indicted
Lagos. Lagos pleaded guilty to wire fraud. And the judge, among
other things, ordered him to pay GE restitution.
The issue here concerns the part of the
restitution order that requires Lagos to reimburse GE for expenses
GE incurred during its own investigation of the fraud and during
its participation in Dry Van Logistics’ bankruptcy proceedings. The
amounts are substantial (about $5 million), and primarily consist
of professional fees for attorneys, accountants, and consultants.
The Government argued that the District Court must order
restitution of these amounts under the Mandatory Victims
Restitution Act because these sums were “necessary . . .
other expenses incurred during participation in the investigation
. . . of the offense or attendance at proceedings related
to the offense.” §3663A(b)(4). The District Court agreed, as did
the U. S. Court of Appeals for the Fifth Circuit. 864
F. 3d 320, 323 (2017).
Lagos filed a petition for certiorari. And in
light of a division of opinion on the matter, we granted the
petition. Compare
United States v.
Papagno, 639
F. 3d 1093, 1100 (CADC 2011) (subsection (b)(4) of the
Mandatory Victims Restitution Act does not cover private
investigation costs), with
United States v.
Elson,
577 F. 3d 713, 726–729 (CA6 2009) (statute not so limited);
United States v.
Hosking, 567 F. 3d 329, 331–332
(CA7 2009) (same);
United States v.
Stennis-Williams,
557 F. 3d 927, 930 (CA8 2009) (same);
United States v.
Amato, 540 F. 3d 153, 159–163 (CA2 2008) (same);
United States v.
Gordon, 393 F. 3d 1044,
1056–1057 (CA9 2004) (same).
II
The Mandatory Victims Restitution Act is one
of several federal statutes that govern federal court orders
requiring defendants convicted of certain crimes to pay their
victims restitution. It concerns “crime[s] of violence,”
“offense[s] against property . . . , including any
offense committed by fraud or deceit,” and two specific offenses,
one concern- ing tampering with a consumer product and the other
concerning theft of medical products. 18 U. S. C.
§3663A(c)(1)(A). It requires, in the case of property offenses,
return of the property taken or its value, §3663A(b)(1); in the
case of bodily injury, the payment of medical expenses and lost
income, §3663A(b)(2); in the case of death, the payment of funeral
expenses, §3663A(b)(3); and, as we have said,
supra, at 1,
in all cases, “reimburse[ment]” to
“the victim for lost income and necessary
child care, transportation, and other expenses
incurred during
participation in the investigation or prosecution of the offense or
attendance at proceedings related to the offense.” §3663A(b)(4)
(emphasis added).
We here consider the meaning of that italicized
phrase. Specifically, we ask whether the scope of the words
“investigation” and “proceedings” is limited to government
investigations and criminal proceedings, or whether it includes
private investigations and civil or bankruptcy litigation. We
conclude that those words are limited to government investigations
and criminal proceedings.
Our conclusion rests in large part upon the
statute’s wording, both its individual words and the text taken as
a whole. The individual words suggest (though they do not demand)
our limited interpretation. The word “investigation” is directly
linked by the word “or” to the word “prosecution,” with which it
shares the article “the.” This suggests that the “investigation[s]”
and “prosecution[s]” that the statute refers to are of the same
general type. And the word “prosecution” must refer to a
government’s criminal prosecution, which suggests that the word
“investigation” may refer to a government’s criminal investigation.
A similar line of reasoning suggests that the immediately following
reference to “proceedings” also refers to criminal proceedings in
particular, rather than to “proceedings” of any sort.
Furthermore, there would be an awkwardness about
the statute’s use of the word “participation” to refer to a
victim’s role in its own private investigation, and the word
“attendance” to refer to a victim’s role as a party in noncriminal
court proceedings. A victim opting to pursue a private
investigation of an offense would be more naturally said to
“provide for” or “conduct” the private investigation (in which he
may, or may not, actively “participate”). And a victim who pursues
civil or bankruptcy litigation does not merely “atten[d]” such
other “proceedings related to the offense” but instead
“participates” in them as a party. In contrast, there is no
awkwardness, indeed it seems perfectly natural, to say that a
victim “participat[es] in the investigation” or “attend[s]
. . . proceedings related to the offense” if the
investigation at issue is a government’s criminal investigation,
and if the proceedings at issue are criminal proceedings conducted
by a government.
Moreover, to consider the statutory phrase as a
whole strengthens these linguistic points considerably. The phrase
lists three specific items that must be reimbursed, namely, lost
income, child care, and transportation; and it then adds the words,
“and other expenses.” §3663A(b)(4). Lost income, child care
expenses, and transportation expenses are precisely the kind of
expenses that a victim would be likely to incur when he or she (or,
for a corporate victim like GE, its employees) misses work and
travels to talk to government investigators, to participate in a
government criminal investigation, or to testify before a grand
jury or attend a criminal trial. At the same time, the statute says
nothing about the kinds of expenses a victim would often incur when
private investigations, or, say, bankruptcy proceedings are at
issue, namely, the costs of hiring private investigators,
attorneys, or accountants. Thus, if we look to
noscitur a
sociis, the well-worn Latin phrase that tells us that statutory
words are often known by the company they keep, we find here both
the presence of company that suggests limitation and the absence of
company that suggests breadth. See,
e.g., Yates v.
United
States, 574 U. S. ___, ___ (2015) (slip op., at 14).
We add a practical fact: A broad reading would
create significant administrative burdens. The statute provides for
mandatory restitution, and the portion we construe is limited to
“
necessary . . . other expenses.” §3663A(b)(4)
(emphasis added). The word “necessary” would, if the statute is
broadly interpreted, invite disputes as to whether particular
expenses “incurred during” participation in a private investigation
or attendance at, say, a bankruptcy proceeding, were in fact
“necessary.” Such disputes may become burdensome in cases involving
multimillion dollar investigation expenses for teams of lawyers and
accountants. A district court might, for example, need to decide
whether each witness interview and each set of documents reviewed
was really “necessary” to the investigation. Similarly, the statute
also limits restitution to expenses incurred only during
“attendance at
proceedings related to the offense,”
ibid. (emphasis added), inviting disputes as to whether,
say, a licensing proceeding, a human resources review, an in-house
disciplinary proceeding, a job interview, a Consumer Product Safety
Commission hearing, or a neighborhood watch meeting qualified as
“proceedings” sufficiently “related to the offense” so as to be
eligible for restitution.
To interpret the statute broadly is to invite
controversy on those and other matters; our narrower construction
avoids it. And one begins to doubt whether Congress intended, in
making this restitution mandatory, to require courts to resolve
these potentially time-consuming controversies as part of criminal
sentencing—particularly once one realizes that few victims are
likely to benefit because more than 90% of criminal restitution is
never collected. See GAO, Federal Criminal Restitution: Most Debt
Is Outstanding and Oversight of Collections Could Be Improved 25
(GAO–18–203, 2018) (explaining that the Justice Department
considers 91% of outstanding criminal restitution to be
“uncollectible”).
There are, of course, contrary
arguments—arguments favoring a broad interpretation. The Government
points out, in particular, that our narrow interpretation will
sometimes leave a victim without a restitution remedy sufficient to
cover some expenses (say, those related to his private
investigation) which he undoubtedly incurred as a result of the
offense. Leaving the victim without that restitution remedy, the
Government adds, runs contrary to the broad purpose of the
Mandatory Victims Restitution Act, namely, “to ensure that victims
of a crime receive full restitution.”
Dolan v.
United
States, 560 U. S. 605, 612 (2010).
But a broad general purpose of this kind does
not always require us to interpret a restitution statute in a way
that favors an award. After all, Congress has enacted many
different restitution statutes with differing language, governing
different circumstances. Some of those statutes specifically
require restitution for the “full amount of the victim’s losses,”
defined to include “any . . . losses suffered by the
victim as a proximate result of the offense.” See 18
U. S. C. §§2248(b), 2259(b), 2264(b), 2327(b). The
Mandatory Victims Restitution Act, however, contains no such
language; it specifically lists the kinds of losses and expenses
that it covers. Moreover, in at least one other statute Congress
has expressly provided for restitution of “the value of the time
reasonably spent by the victim in an attempt to remediate the
intended or actual harm incurred by the victim from the offense.”
§3663(b)(6). Again the Mandatory Victims Restitution Act has no
similar provision. And given those differences between the
Mandatory Victims Restitution Act and other restitution statutes,
we conclude that the considerations we have mentioned, particularly
those based on a reading of the statute as a whole, tip the balance
in favor of our more limited interpretation.
We add that this interpretation does not leave a
victim such as GE totally without a remedy for additional losses
not covered by the Mandatory Victims Restitution Act. GE also
brought a civil lawsuit against Lagos for the full extent of its
losses, and obtained an over-$30 million judgment against him. The
Government says that GE has largely been unable to collect on that
judgment, but there is no reason to think that collection efforts
related to a criminal restitution award would prove any more
successful.
The Government makes one additional argument. It
points out that GE shared with the Government the information that
its private investigation uncovered. And that fact, the Government
says, should bring the expenses of that investigation within the
terms of the statute even if the “investigation” referred to by the
statute is a government’s criminal investigation. The short,
conclusive answer to that claim, however, lies in the fact that the
statute refers to “necessary child care, transportation, and other
expenses incurred
during participation in the investigation
or prosecution of the offense.” §3663A(b)(4) (emphasis added). It
does not refer to expenses incurred
before the victim’s
participation in a government’s investigation began. And the
Government does not deny that it is those preparticipation
expenses—the expenses of conducting GE’s investigation, not those
of sharing the results from it—that are at issue here. We therefore
need not address in this case whether this part of the Mandatory
Victims Restitution Act would cover similar expenses incurred
during a private investigation that was pursued at a government’s
invitation or request. It is enough to hold that it does not cover
the costs of a private investigation that the victim chooses on its
own to conduct.
* * *
For the reasons stated, we conclude that the
words “investigation” and “proceedings” in the Mandatory Victims
Restitution Act refer to government investigations and criminal
proceedings. Consequently Lagos is not obliged to pay the portion
of the restitution award that he here challenges. We reverse the
Court of Appeals’ judgment to the contrary, and we remand the case
for further proceedings consistent with this opinion.
It is so ordered.
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