Appeal from the United States District Court for the District of Guam. D.C. No. CR-91-00021-ARM. Alex R. Munson,*fn* District Judge, Presiding
Before: James R. Browning, Harry Pregerson, and Ruggero Aldisert,**fn** Circuit Judges. Opinion by Judge Pregerson.
PREGERSON, Circuit Judge:
Efren Pangilinan Sanga appeals an order of restitution imposed as part of his sentence following entry of guilty pleas to conspiracy to smuggle aliens, in violation of 8 U.S.C. § 1324(a)(1)(D) and 18 U.S.C. § 371, and unlawful procurement of citizenship, in violation of 8 U.S.C. § 1425. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Status of Annie Marie Quinlob as a "Victim"
Sanga contends that the person to whom he was ordered to pay restitution, Annie Marie Quinlob, is not a "victim" within the meaning of the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. §§ 3663, 3364 (formerly codified at 18 U.S.C. §§ 3579, 3580), and is not entitled to restitution. Sanga argues that because Quinlob was a willing participant in the conspiracy to smuggle herself into Guam, she could not be at the same time a victim of that conspiracy. This argument lacks merit.
We review de novo both the legality of a restitution order, United States v. McHenry, (9th Cir. May 19, 1992), and the district court's Conclusion that a person is a victim for purposes of the VWPA, United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir. 1990) (governmental entity not a victim which suffered a loss under VWPA when it voluntarily paid for contraband during investigation of crime); United States v. Ruffen, 780 F.2d 1493, 1496 (9th Cir.) (governmental entity which paid out benefits to defendant as result of fraudulent scheme is victim for purposes of VWPA), cert. denied, 479 U.S. 963, 93 L. Ed. 2d 407, 107 S. Ct. 462 (1986).
The VWPA provides that "for the purposes of restitution, a victim of an offense that involves as an element a scheme, a conspiracy, or a pattern of criminal activity means any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern." 18 U.S.C. § 3663. The Supreme Court has held that "the language and structure of the [VWPA] make plain Congress' intent to authorize an award of restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction." Hughey v. United States, 495 U.S. 411, 413, 109 L. Ed. 2d 408, 110 S. Ct. 1979 (1990).
In McHenry, this court addressed the legality of a restitution order in the context of a conviction for conspiracy. McHenry, slip op. at 5694. The McHenry defendants operated a fraudulent coin sales business and were convicted of conspiracy to commit mail and wire fraud. The district court awarded restitution to all persons who were identified as "customers" of the coin sales business and who desired a refund, id. at 5695, despite the fact that the jury did not specify which overt acts the defendants committed in furtherance of the conspiracy, id. at 5697. After first finding that there could be "victims" of a conspiracy such that restitution under the VWPA could be ordered, id. at 5696-98, this court went on to vacate the order of restitution because " Hughey requires that restitution must be limited to the loss flowing from the conspiracy itself. Therefore, to remain within these boundaries, the loss must result from the act or acts done in furtherance of the conspiracy. . . ." Id. at 5698; see also United States v. Sharp, 941 F.2d 811, 815 (9th Cir. 1991) ("even when the offense of conviction involves a conspiracy or scheme, restitution must be limited to the loss attributable to the specific conduct underlying the conviction").
Here, Count 1 of the indictment alleged a conspiracy "to smuggle numerous illegal and unauthorized aliens into the United States from the Philippines by encouraging and inducing the aliens to come to, enter and reside in the United States." The object of this conspiracy was to "bring family members, friends, and workers into Guam for purposes of unlawful employment, the harboring of illegal aliens within the United States, and to circumvent the Immigration and Nationality Act and regulations pertaining thereto concerning the lawful admission of aliens."
Quinlob was not named as a conspirator in the indictment. The overt acts of the conspiracy in which Quinlob was actively involved were limited solely to the mechanics of the conspiracy's successful attempt to smuggle her into Guam. Consistent with the object of the conspiracy identified in the indictment, however, Sanga stipulated in his plea agreement that he smuggled Quinlob in specifically for the purpose of employing her as his live-in maid.
When Quinlob arrived in Guam at Sanga's house, she had her passport and a return airline ticket to the Philippines. The following day, Sanga told her that she would have to work for him as a maid, and when Quinlob stated that she wished to go home to the Philippines, Sanga told her he had spent a lot of money to bring her to Guam and he would kill her before he would allow her to return to the Philippines. Soon thereafter, Quinlob discovered that her passport and airline ticket had disappeared from under her mattress where she had hidden them. The passport was eventually found under Sanga's mattress by an INS agent during the execution of a search warrant on the Sanga residence.
Sanga and his wife employed Quinlob as a live-in maid, working approximately fourteen hours a day, seven days a week, for the substandard wage of $150.00 per month. After about two years working as a maid for the Sangas, Quinlob gave in to pressure from Sanga and agreed to have sex with him in return for his providing her with a false Guam identification card so that she could obtain employment outside the Sanga home. While she was in Guam, she left her child in the Philippines under the joint ...