On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Crim. Nos. 99-525-06/07/08) District Judge: Honorable Jan E. DuBois
Before: Becker, Chief Judge, Nygaard and
Ambro, Circuit Judges.
The opinion of the court was delivered by: Becker, Chief Judge
Domenick Terlingo, Appellant in No. 02-1640
Tara Terlingo, Appellant in No. 02-1641
Domenick L. Terlingo, Appellant in No. 02-1642
Submitted Under Third Circuit LAR 34.1(a) January 21, 2003
This is a sentencing appeal brought by defendants Domenick Terlingo, Tara Terlingo, and Domenick L. Terlingo, who were convicted by a jury of conspiracy to transport stolen vehicles in interstate commerce. The Terlingos assert that the order of restitution imposed by the District Court is invalid because it was imposed more than ninety days after sentencing, in contravention of the following provision of 18 U.S.C. § 3664(d)(5):
If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. (Emphasis added).
The Government submits that the District Court was correct to rule that because the delay was the fault of the defendants it would equitably toll the time-bar and allow the hearing to take place outside the ninety-day limit. This appeal raises a question of first impression for this Court: is the 18 U.S.C. § 3664(d)(5) time limit subject to equitable tolling, and if so, under what circumstances? Because we conclude that this time limit is subject to equitable tolling when the delay is caused in significant part by the defendant, we will affirm the judgment of the District Court.
Between March 1995 and May 1997, the Terlingos participated in a scheme to steal and sell luxury automobiles after changing their vehicle identification numbers. In December 2000, a jury convicted the Terlingos of one count of conspiracy to transport stolen vehicles in interstate commerce in violation of 18 U.S.C. § 371. On October 9, 2001, the District Court sentenced Domenick Terlingo to eighteen months imprisonment and three years supervised release, and on October 11, 2001 it sentenced both Tara and Domenick L. Terlingo to three years probation and six months house arrest.
At the request of the Government, because it needed more time to obtain necessary documents, the District Court did not address the issue of restitution at the defendants' sentencing hearings but rather delayed entry of a restitution order pursuant to 18 U.S.C. § 3664(d)(5). On December 21, 2001, the District Court ordered counsel for both parties to report jointly to the Court on the status of the restitution issue on or before January 7, 2002, a date ninety days after Domenick Terlingo's sentencing. In a December 28, 2001 letter to the District Court, the Government requested that the Court schedule the restitution hearings for Domenick, Tara, ...