inadequacy of counsel, change in the facts, or change in the law. See Norris v. United States, 687 F.2d 899, 903 (7th Cir. 1982). In United States v. Kraemer, 810 F.2d 173, 177 (8th Cir. 1987), the Eighth Circuit placed the evidentiary burden of proving such changed circumstances on the moving party.
In the present case, L. Spritzer raises issues not brought on direct appeal; thus, he must demonstrate good cause for his procedural default. L. Spritzer asserts three arguments to excuse his lack of appeal. First, he states that his tumultuous relationship with his brother prevented him from finding out about D. Spritzer's settlement. Second, he claims that the USAO gave "cagey" responses to his attorney's requests for information regarding the D. Spritzer settlement. Finally, he purports that the government had an obligation to come forward with information regarding the D. Spritzer settlement at the time of petitioner's sentencing.
This Court finds that these excuses are insufficient to show cause for L. Spritzer's procedural default. L. Spritzer's first excuse is without merit; whether he had an amicable relationship with his brother is of no legal moment. The second excuse, which implies that the government attempted to mislead L. Spritzer's attorney, is unsubstantiated. The record lacks any sworn statements with respect to L. Spritzer's attorney's requests to the USAO for information regarding D. Spritzer's settlement. Similarly, any responses by the USAO to such requests are absent from the record. As for the third excuse, there is no indication that the government had any information regarding the D. Spritzer settlement that would have been of use to the Court at the time of L. Spritzer's sentencing. Moreover, because L. Spritzer was aware that the government was negotiating a settlement with D. Spritzer, he could have asked the Court, at least provisionally, to credit his restitution obligation when D. Spritzer settled with the government. That the government did not come forward with information regarding the D. Spritzer settlement does not excuse L. Spritzer's failure to raise this objection at his sentencing. Therefore, this Court finds that petitioner has waived his right to seek correction of his sentence.
II. Petitioner's Restitution Obligation
This court notes that even if it were to overlook petitioner's procedural deficiencies, his argument that the restitution ordered by this Court exceeds the maximum allowed by law must fail. Because the law accommodates the imposition of civil penalties subsequent to an order of criminal restitution, see United States v. Halper, 490 U.S. 435, 442, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989), it would be inconsistent to also require a court to credit civil penalties against restitution. Thus, D. Spritzer's settlement with the government does not require the Court to reduce L. Spritzer's restitution obligation.
A court order of restitution pursuant to the VWPA, see 18 U.S.C. § 3663 (1996), does not explicitly preclude the subsequent imposition of civil penalties under the FCA.
See Halper, 490 U.S. at 442. Under the FCA, a person who presents a false claim to the government is liable to the government "for a civil penalty of not less than $ 5,000 and not more than $ 10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person . . . ." 31 U.S.C. § 3729(a) (1986). "[Treble] damages are necessary to compensate the government completely for the costs, delays, and inconveniences occasioned by fraudulent claims." United States v. Bornstein, 423 U.S. 303, 315, 46 L. Ed. 2d 514, 96 S. Ct. 523 (1976). Penalties imposed under the FCA are civil and do not constitute punishment; thus, the imposition of civil penalties subsequent to a court order of restitution does not facially violate the Fifth Amendment's double jeopardy clause. See Halper, 490 U.S. at 442. In the "rare case," however, a civil penalty may be so disproportionate to the damages caused as to constitute punishment. See id. at 449.
This Court's order of restitution did not preclude the imposition of civil penalties on either L. Spritzer or D. Spritzer. Although this Court credited L. Spritzer's settlement figure against his restitution obligation, the Court theoretically could have required L. Spritzer to pay full restitution in accordance with the government's actual loss ($ 342,145.68) plus the $ 200,000 settlement. Likewise, the government's subsequent settlement with D. Spritzer was consistent with the FCA's provision for the recovery of damages in excess of actual loss.
This Court is not required to further reduce L. Spritzer's restitution by crediting D. Spritzer's settlement against L. Spritzer's restitution obligation. As the law provides for the imposition of civil penalties subsequent to criminal restitution, see Halper, 490 U.S. at 442, it would be inconsistent to conversely require a court to credit civil penalties against restitution. Following L. Spritzer's sentencing, the government expected to recover an amount equal to its actual loss (i.e., $ 342,145.65), but well short of the amount it could have recovered pursuant to the FCA's provision for treble damages. Even after accounting for D. Spritzer's $ 100,000 settlement, the government's total recovery ($ 442,145.65) will remain below what the FCA's treble damages provision would allow. Furthermore, to credit L. Spritzer's obligation for D. Spritzer's settlement would defeat Congress's intent to provide "for civil recovery in excess of the Government's actual damages . . . ." See Halper, 490 U.S. at 442. Thus, even if L. Spritzer's request for correction of this Court's restitution order was not procedurally barred, his request would be rejected on the merits.
For the reasons set out above, the Court will deny L. Spritzer's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. An appropriate Order is attached.
Dated: June 23, 1997
ALFRED M. WOLIN, U.S.D.J.
In accordance with the Court's Memorandum Opinion filed herewith,
It is on this 23d day of June, 1997
ORDERED that petitioner Lawrence Spritzer's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence is denied.
ALFRED M. WOLIN, U.S.D.J.