Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Crim. No. 91-cr-000163-1)
NYGAARD, Circuit Judge, concurring.
Argued September 11, 1995
In this criminal case, Vincent K. Graham appeals from the sentence imposed after he pled guilty to charges of conspiracy involving counterfeit securities and other related charges pertaining to a scheme to defraud financial institutions. Specifically, Graham asks us to decide whether the district court incorrectly imposed restitution, pursuant to the Victim and Witness Protection Act, 18 U.S.C. Section(s) 3579-3580 (1982), in light of his financial inability to pay restitution. Because the district court, utilizing the current AO Form 245B which has subsequently been changed, *fn1 indicated that the restitution payments were to be made in installments which the probation officer could establish and periodically modify, Graham contends that the district court improperly delegated, to the probation office, the authority to designate the timing and amount of restitution payments.
In addition, Graham asserts that his sentencing hearing was improperly tainted by information proffered to the court at the sentencing hearing of Graham's co-defendant. Finally, we are asked to address whether Graham's Sixth Amendment right to counsel was denied as a result of the district court's allegedly inadequate compensation of Graham's court appointed counsel pursuant to the Criminal Justice Act, 18 U.S.C. Section(s) 3006A(d).
We hold that the district court did not make the necessary factual finding regarding Graham's financial ability to comply with the restitution order and that AO Form 245B improperly delegates to the probation office the determination of the amount and timing of restitution installment payments. We will thus vacate the judgment of the district court and remand for further proceedings. We will dismiss the Criminal Justice Act claim, couched as a violation of Graham's Sixth Amendment right, for lack of jurisdiction.
On or about December 9, 1992, David L. Wells and Vincent K. Graham were arrested at a branch of the Meridian Bank located in Upper Darby, Pennsylvania, while attempting to withdraw money from an automatic teller machine. Pursuant to a fraudulent scheme devised by Graham, Graham and his co-conspirators passed counterfeit, forged bank checks by depositing them in "dummy" bank accounts and withdrawing the proceeds before the financial institutions were able to discover the fraud. In order to effectuate this scheme, Graham and his co-defendants placed advertisements in various newspapers soliciting the general public to submit personal information in application for employment with a fictitious company, "Transport Video East." Graham and his co-conspirators established accounts with various telephone answering services located in Pennsylvania, to receive the telephone calls and applications in response to the various solicitations as well as inquiries from the general public about the non-existent jobs. When applicants inquired about the advertised jobs, they were asked to provide personal information such as social security numbers, driver's license numbers, etc., which Graham and the others subsequently used to create duplicate drivers licenses and other forms of fraudulent identification.
Using this false identification, Graham and his co-conspirators opened bank accounts at various financial institutions. Typically, the bank accounts were opened through the mail using the fraudulently obtained names and personal information of the unsuspecting job applicants. By securing post office boxes with private postal services, Graham and his co-conspirators were able to obtain addresses for the bank accounts. Utilizing this fraudulent scheme, Graham and his co-conspirators deposited counterfeit checks totaling $162,000 into the various bank accounts. They then withdrew or attempted to withdraw the funds prior to the discovery of the fraudulent nature of the transactions. According to the government, an aggregate amount of $46,792.91 was withdrawn by Graham and his co-conspirators.
On August 17, 1993, a second superseding indictment was filed charging Vincent K. Graham and two others with conspiracy to make and utter counterfeit securities in violation of 18 U.S.C. Section(s) 371 (1 count); making and uttering counterfeit securities in violation of 18 U.S.C. 513(a) (40 counts); bank fraud in violation of 18 U.S.C. Section(s) 1344(1) (14 counts); misuse of social security documents in violation of 42 U.S.C. 408(a)(7) (18 counts); possession of false identification documents in violation of 18 U.S.C. Section(s) 1028(a)(3) (2 counts); and aiding and abetting in violation of 18 U.S.C. Section(s) 2. On September 10, 1993, pursuant to a written plea agreement, Graham pled guilty to 23 counts of the sixty-three count indictment. The remaining counts were dismissed on the government's motion.
Subsequently, Graham was sentenced to a term of forty-six months of imprisonment on each count, to run concurrently, followed by a term of three years of supervised release. The district court also ordered Graham to pay a special assessment of $1,300 and to pay restitution in the amount of $46,692.91, jointly and severally with his co-defendants, in installments to be established by the probation officer. We turn to Graham's assertion ...