In response, the government contends that although defendant was temporarily totally disabled (and section 8106 applies only to the partially disabled), the department was still authorized to seek the information from him. The government is likely correct in this regard, see, e.g., id., but the department's authority to seek the information is not the issue here. Rather, by its terms, section 1920 applies only to reports "required by section 8106.
I have located only one case directly addressing this less than garden-variety issue. In U.S. v. Dorey, 711 F.2d 125 (9th Cir. 1983), the Ninth Circuit reversed a conviction for violation of 18 U.S.C. § 1001, the false statement statute, because the indictment charged that the false statements were made on a report required by section 8106. The Dorey court held that, because the defendant was temporarily totally disabled, section 8106 did not require him to file any report. Id. at 128. Though Dorey involved an indictment under section 1001, the language in the Dorey indictment that limited the charges to false statements made on reports required by section 8106 effectively limited the indictment to a section 1920 violation such as the one at issue here. The language of Dorey court is persuasive, and it follows that the pre-amendment version of section 1920 cannot reach Mr. Machi's conduct.
Although the government is correct in its assertion that the Ninth Circuit later limited the holding in Dorey, it did so only in cases in which defendants were charged with violations of 18 U.S.C. § 1001 without any reference to section 8106. See U.S. v. Olson, 751 F.2d 1126, 1127-28 (9th Cir. 1985) (section 1001 is applicable to statements made on forms submitted by defendant who was temporarily totally disabled); U.S. v. Rosa, 783 F.2d 1401, 1407-08 (9th Cir. 1986) (affirming conviction under section 1001); U.S. v. Austin, 817 F.2d 1352, 1354 (9th Cir. 1987) (affirming conviction under section 1001); see also U.S. v. Kappes, 936 F.2d 227, 231 (6th Cir. 1991) (section 1001 is applicable to statements made on forms submitted by defendant who was temporarily totally disabled). Thus, what these later cases stand for, at best, is that "even if the Department [of Labor] has no right under § 8106 to require earnings reports from those temporarily totally disabled, it can still require them pursuant to an implied authority under § 8105 [(which addresses total disability)]." Brumley, 827 F. Supp. at 1414. Though section 1001 thus reaches false statements made by those totally disabled because it is a catch-all false statements statute, section 1920 does not reach such statements because they are not "required" by section 8106.
Accordingly, the loss amount here, required for the guideline determination is reduced to the $ 20,000 to $ 40,000 range, which requires a specific offense characteristic upward adjustment of 4 levels. When added to Mr. Machi's base offense level of 6, the resulting total offense level is 10. With a Criminal History Category I, the total offense level places Mr. Machi in the 6-12 months range.
Mr. Machi is hereby sentenced to a term of imprisonment of one month, to be followed by a term of two years of supervised release, with a condition of the supervised release being that the first six months be spent in home detention. Additionally, Mr. Machi shall pay restitution in the amount of $ 40,000 plus the cost of custody and supervision, and a $ 100 assessment. Having considered the defendant's financial resources and assets, his projected income and his financial obligation, see 18 U.S.C. § 3664(f)(2), defendant shall begin paying restitution upon his release from prison and shall pay such restitution annually, at the rate of 10% of his adjusted gross income.
Dated: May 1, 1997
New York, New York
Harold Baer, Jr.