United States v. Raymond P. Novak

476 F.3d 1041 UNITED STATES of America, Plaintiff-Appellant, v. Raymond P. NOVAK, Defendant-Appellee. No. 04-55838. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 3, 2006. Filed February 22, 2007. Brent A. Whittlesey, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellant. Martin S. Bakst, Encino, California, for the defendant-appellee. Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, Chief District Judge, Presiding. D.C. No. CV-03-06706-CBM. Before MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, STEPHEN REINHARDT, ANDREW J. KLEINFELD, MICHAEL DALY HAWKINS, SIDNEY R. THOMAS, BARRY G. SILVERMAN, M. MARGARET McKEOWN, KIM McLANE WARDLAW, WILLIAM A. FLETCHER, RICHARD A. PAEZ, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, RICHARD R. CLIFTON, and JAY S. BYBEE, Circuit Judges. BERZON, Circuit Judge. 1 We are asked to determine whether — and if so, under what circumstances — a criminal defendant's retirement benefits are available as a source of funds to compensate crime victims. Answering these questions requires reconciling two federal statutory schemes —…

We are asked to determine whether— and if so, under what circumstances — a criminal defendant’s retirement benefits are available as a source of funds to compensate crime victims. Answering these questions requires reconciling two federal statutory schemes — one, the Mandatory Victims Restitution Act of 1996 (“MVRA”), Pub.L. No. 104-132, 110 Stat. 1227, governing the payment of restitution to crime victims, and the other, the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-1461 , 1 regulating private pension plans. Underlying each statute is a weighty policy determination: MVRA rests on the recognition that “[i]t is essential that the criminal justice system recognize the impact that crime has on the victim, and, to the extent possible, ensure that [the] offender be held accountable to repay these costs.” S.Rep. No. 104-179, at 18 (1995). ERISA is meant to assure that “[r]etirement funds shall remain inviolate until retirement.” Boggs v. Boggs, 520 U.S. 833, 851 , 117 S.Ct. 1754 , 138 L.Ed.2d 45 (1997) (quoting John H. Langbein & Bruce A. Wolk, Pension and Employee Benefit Law 547 (2d ed.1995)) (internal quotation mark omitted). Taking a close look at…

The question in this case is whether the Mandatory Victim Restitution Act (MVRA), codified in relevant part at 18 U.S.C. § 8613 , abrogates ERISA’s strict prohibition on alienation of pension benefits. The majority holds that it does. For two reasons, the majority is mistaken.

First, the majority fails to recognize that our task in this case is limited. We are not called upon to clear up ambiguities of the MVRA. Rather, we are asked to decide whether that Act evinces an unmistakable intention to override ERISA’s anti-alienation provision. As the Supreme Court explained in Guidry v. Sheet Metal Workers National Pension Fund, 493 U.S. 365 , 110 S.Ct. 680 , 107 L.Ed.2d 782 (1990), ERISA’s anti-alienation provision “reflects a considered congressional policy choice,” and only a clear and specific legislative directive is sufficient to defeat it. Id. at 376 , 110 S.Ct. 680 . Moreover, it is settled law, wholly apart from Guidry, that Congress cannot repeal a prior law by implication unless it expresses a “clear and manifest” intention to do so. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154 , 96 *1065 S.Ct. 1989 , 48 L.Ed.2d 540 (1976); see also Moyle v. Dir., OWCP, 147 F.3d 1116,…