United States of America, Cross-Appellant v. John L. Weir, Cross-Appellee

In 87-1003, the defendant Weir appeals the district court’s denial of his motion under Federal Rule of Criminal Procedure 35(a) to modify and vacate as illegal that part of the sentence imposing a $250,000 fine. He contends that the district court failed to consider the factors listed in 18 U.S.C. § 3622 . In 87-1124, the government appeals the district court’s order deleting an award of restitution. The government contends that the restitution award was under the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3579 and 3580, not under the Federal Probation Act (FPA), 18 U.S.C. § 3651 . It contends that restitution can be ordered under the VWPA even though the amounts are not alleged in the indictment or part of a plea agreement and that the order of restitution was otherwise lawful.

I

FACTS AND PRIOR PROCEEDINGS

The defendant was charged by indictment with a single count of conspiracy under 18 U.S.C. § 371 (Count I) and twelve counts of false statements under 18 U.S.C. § 1001 . He was charged by separate information with one count of tax fraud under 26 U.S.C. § 7206 .

As part of a plea agreement, he plead guilty to Count I (the conspiracy count), Count IV (one of the…