Man convicted of child porn not entitled to relief over criminal procedure rule, restitution dispute

A debate over a federal criminal procedure rule and a restitution order did not sway a 7th Circuit Court of Appeals panel, which upheld a man’s conviction and sentence for child pornography.

In United States of America v. Michael Stivers, 20-1180, 20-2664, Michael Stivers was sentenced to 25 years in prison for his conviction of receiving, possessing and distributing child pornography.

After the parties disputed the restitution amount, the Indiana Southern District Court deferred its restitution decision and allowed the parties to submit additional briefing on the issue. Once the briefs were submitted, the district court overruled Stivers’ objections to the government’s proposed restitution calculation and ordered Stivers to pay $3,000 in restitution.

On appeal, Stivers maintained the district court violated Federal Rule of Criminal Procedure 43 by ordering restitution in his absence. Under Rule 43(a)(3), “the defendant must be present at … sentencing.” From that language, Stivers argued a criminal defendant must be present when a court orders restitution, on the theory that restitution is part of a sentence.

But the 7th Circuit in a Friday decision concluded Rule 43 does not apply to the restitution order in the case at hand. Therefore, Stivers’ argument about the scope of Rule 43 doesn’t matter.

“The district court ordered restitution under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259. Restitution awards under this Act are subject to the procedures of 18 U.S.C. § 3664. See § 2259(b)(3). Relevant here, § 3664(d)(5) permits a court to delay the ‘final determination of the victim’s losses’ for up to ‘90 days after sentencing’ if the losses are ‘not ascertainable’ ten days before sentencing,” Circuit Judge Amy St. Eve wrote for the 7th Circuit panel.

“To reconcile § 3664(d)(5) with his reading of Rule 43(a)(3), Stivers suggests that a court must hold a second ‘sentencing’ hearing for its delayed restitution decision. But another section of the statute forecloses this strained interpretation of the rule – statute interplay,” St. Eve continued, referring to  §  3664(c) as superseding Rule 43(a)(3) based on the plain language of the statute.

The panel further denied Stivers’ argument that the 7th Circuit should interpret § 3664(c) in a way that avoids a potential conflict between the statute and the Constitution.

“Section 3553(c) says nothing about Rule 43, so it does not create any ambiguity as to whether § 3664(c) supersedes the rule. … To the extent Stivers now relies on § 3553(c) and the Constitution as independent grounds for relief, we do not consider his arguments. In his original appellate briefing, Stivers relied exclusively on Rule 43(a)(3). Our request for supplemental briefing on whether Rule 43(a)(3) applies did not give Stivers license to transform his appeal and seek relief on grounds he never raised in his original briefing,” St. Eve wrote.

Concluding Rule 43(a)(3) does not apply in his case, the panel ruled that Stivers is not entitled to relief for the district court’s supposed violation of it. The 7th Circuit further declined to address the government’s argument that any Rule 43 violation was harmless error.

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