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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-1094
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PEDRO CARRILLO PAYAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(May 31, 1993)
Before REAVLEY, KING, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Pedro Carrillo Payan appeals several aspects of his criminal
convictions relating to the transportation in interstate and
foreign commerce of stolen property. He also appeals his
resulting sentence. Finding no reversible error, we affirm.
I
FACTS AND PROCEEDINGS
Between October, 1990 and June 1991, farm equipment began
disappearing from the Texas panhandle and northeastern New

Mexico. During this same period, a relative of one of the
dispossessed tractor owners noticed similar tractors appearing in
Mexico. Law enforcement officers also received information that
Payan was exporting stolen tractors from the United States and
selling them in Mexico. An arrest warrant was issued for Payan,
and federal and state authorities at the United States Customs
port of entry at Columbus, New Mexico were alerted to watch for
stolen farm equipment.
In June, 1991, Mark Ancira was arrested while attempting to
transport into Mexico two tractors that had been stolen in Texas.
At the time of his arrest, Ancira was in possession of fraudulent
invoices for the tractors made out to Payan as purchaser. Payan
was arrested the next day when he entered the United States from
Mexico.
Payan was indicted subsequently on one count of conspiracy
to transport stolen goods in interstate and foreign commerce, and
fifteen counts of transportation of stolen goods in interstate
and foreign commerce.1
At trial, the government introduced credible evidence that
Payan and Ancira cooperated in the transportation and disposal of
substantially all of the farm equipment stolen from this
geographic area during the period in question. Payan was
subsequently convicted on the conspiracy count and on eleven of
the substantive counts. Consequently, Payan was sentenced to
serve a prison term followed by supervised release; and to pay a
1 See 18 U.S.C. 壯 2, 2314.
2

fine, restitution, and a special assessment. Payan timely
appealed.
II
ANALYSIS
In this appeal, Payan raises four points of error: (1)
Whether the Wharton Rule or the Double Jeopardy Clause of the
Fifth Amendment were violated by his conviction on both the
conspiracy and the underlying substantive counts for
transportation of stolen property; (2) whether the court violated
the rule of Bruton v. United States2 by not declaring a mistrial
when a witness referred to an out of court statement made by a
non-testifying codefendant; (3) whether the court violated Rule
615 of the Federal Rules of Evidence by failing to sequester two
prosecution witnesses; and (4) whether the court improperly
conditioned Payan's release to supervision on his payment of the
fine, restitution, and special assessment.
A.
Wharton's Rule and Double Jeopardy
Payan insists that, under the circumstances of the instant
case, his convictions for both transportation of stolen property
and conspiracy to transport stolen property cannot stand. Two
related principles underlie this claim. First, Wharton's Rule
generally prohibits convictions for both a substantive offense
and conspiracy to commit that offense if the substantive offense
necessarily requires the participation and cooperation of two
2 391 U.S. 123 (1968).
3

persons.3 "[W]here it is impossible under any circumstances to
commit the substantive offense without cooperative action, the
preliminary agreement between the same parties to commit the
offense is not an indictable conspiracy."4 Second, the
doctrinally related but distinct Double Jeopardy Clause prohibits
conviction for two offenses which have identical elements.5
1.
Wharton's Rule
Payan acknowledges that as a general rule a person can be
convicted of both transportation of stolen goods and conspiracy
to commit that same offense. Nonetheless, he argues that the
instant case is distinguishable because the government relied on
both the statute prohibiting the transportation of stolen goods6
and the statute providing for aider and abetter responsibility7
in obtaining convictions against him on the substantive counts.
This latter statute provides:
(a) Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or
procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which
if directly performed by him or another would be an
offense against the United States, is punishable as a
3 See generally Iannelli v. United States, 420 U.S. 770
(1975).
4 Gebardi v. United States, 287 U.S. 112, 122 (1932).
5 See Grady v. Corbin, 495 U.S. 508 (1990); Blockburger v.
United States, 284 U.S. 299 (1932); Ladner v. Smith, 941 F.2d 356
(5th Cir. 1991), cert. denied, ___ U.S. ___, 112 S. Ct. 1665, 118
L. Ed. 2d 387 (1992).
6 18 U.S.C. � 2313.
7 18 U.S.C. � 2.
4

principal.8
Payan argues that, by definition, a conviction based solely
on aider and abettor responsibility requires the involvement of
at least two persons in the criminal activity; one cannot aid and
abet himself. Likewise, he continues, a conspiracy requires at
least two persons. Payan next observes that the evidence
introduced at trial established that two and only two persons
(Payan and Ancira) were involved in the conspiracy and in the
substantive offenses. Further, he asserts, the evidence
established that he only "aided and abetted or caused [Ancira] to
violate the law." Consequently, Payan's argument concludes, his
convictions on the substantive offenses were based solely on
aider and abettor responsibility, so that under the facts of the
instant case both his substantive convictions and his conviction
for conspiracy cannot stand.
Although Payan's argument initially sounds appealing, it
cannot withstand scrutiny. First, Payan improperly treats 18
U.S.C. � 2 (aiding and abetting) as the target offense. Instead,
18 U.S.C. � 2313 (transportation of stolen goods) was the basis
of Payan's indictment and his convictions. 18 U.S.C. � 2 does
not define a crime, but rather simply allows one who aids or
abets the commission of a substantive offense to be punished as a
principal.9 Additionally, 18 U.S.C. � 2 "is an alternative
8 Id.
9 United States v. Walker, 621 F.2d 163, 166 (5th Cir.
1980), cert. denied, 450 U.S. 1000 (1981).
5

charge in every count, whether explicit or implicit."10 Under
Payan's reasoning, no defendant could ever be convicted for both
conspiracy to commit a substantive offense and the substantive
offense itself, as 18 U.S.C. � 2 is implicit in every criminal
charge. Such a result, however, would be contrary to well
established law. "[I]t is well recognized that in most cases
separate sentences can be imposed for the conspiracy to do an act
and for the subsequent accomplishment of that end."11
Second, "Wharton's Rule applies only to offenses that
require concerted criminal activity, a plurality of criminal
agents."12 Only when it is impossible under any circumstances to
commit the substantive offense without cooperative action, does
Wharton's Rule bar convictions for both the substantive offense
and conspiracy to commit that same offense.13 For example,
Wharton's Rule has traditionally been applied to crimes such as
adultery and dueling, offenses that are impossible to commit
absent the participation of at least two persons. In contrast,
it is quite possible for one person, acting alone, to transport
stolen goods.
Third, the Supreme Court has instructed that a Wharton
inquiry should focus on the statutory elements of the substantive
10 Id.; United States v. Bullock, 451 F.2d 884, 888 (5th
Cir. 1971).
11 Iannelli, 420 U.S. at 777-78.
12 Iannelli, 420 U.S. at 785.
13 Gebardi, 287 U.S. at 122.
6

offense rather than the evidence used to prove those elements at
trial.14 As the statutory elements of transporting stolen goods
do not include a multiplicity of actors, Wharton's Rule is not
made viable by the fact that the evidence adduced at trial may
have focused on actions of two defendants in connection with
transporting the stolen tractors.
Fourth, the principles underlying the creation of Wharton's
Rule do not support its application in the instant situation.
Conspiracies generally pose dangers that are distinct from those
of the immediate underlying substantive crime. Collective
criminal activity increases the chances that the criminal
objective will be attained, decreases the chances that the
involved individuals will abandon the criminal path, makes larger
criminal objective attainable, and increases the probability that
crimes unrelated to the original purpose for which the group was
formed will be committed.15
The major premise underlying Wharton's Rule, however, is
that agreements to commit certain crimes do not appear to present
these distinct dangers.16 These crimes, such as the classic
examples of adultery and dueling, "are characterized by the
general congruence of the agreement and the completed substantive
offense."17 In such offenses, the parties to the agreement are
14 Iannelli, 420 U.S. at 780.
15 Id. at 778.
16 Id. at 783 n.16.
17 Id. at 782.
7

the only persons who participate in the commission of the
substantive offense, and are the only persons who bear the
immediate consequences of the crime.
As the Supreme Court instructs us, "a legal principle
commands less respect when extended beyond the logic that
supports it."18 Unlike the traditional Wharton's Rule offenses,
the transportation of stolen goods has immediate consequences for
persons who are not parties to the criminal agreement. The
significant differences in the characteristics and consequences
of the instant offense and the kinds of offenses that gave rise
to Wharton's Rule "counsel against attributing significant weight
to the presumption that the Rule erects."19
Fifth, Wharton's Rule "has continued vitality only as a
judicial presumption, to be applied in the absence of legislative
intent to the contrary."20 The legislative history of the
federal statutes regarding aiding and abetting21 and conspiracy22
indicates that Congress found no duplication or conflict between
these and their predicate crimes, but instead intended that each
be treated as an independent offense or basis of responsibility.
Both were part of the revision and codification of Title 18 in
18 Id. at 786.
19 Id. at 786.
20 Id. at 782.
21 18 U.S.C. � 2.
22 18 U.S.C. � 371.
8

1948.23 All federal criminal laws in effect at that time were
subject to that effort, which included the "reconciliation of
conflicting laws" and "consolidation of similar provisions."24
The Reviser's Notes to � 2 expressly provide that:
The section as revised makes clear the legislative
intent to punish as a principal not only one who
directly commits an offense and one who "aids, abets,
counsels, commands, induces or procures" another to
commit an offense, but also anyone who causes the doing
of an act which if done by him directly would render
him guilty of an offense against the United States.
It removes all doubt that one who puts in motion
or assists in the illegal enterprise but causes the
commission of an indispensable element of the offense
by an innocent agent or instrumentality, is guilty as a
principal even though he intentionally refrained from
the direct act constituting the completed offense.25
Congress similarly intended to punish conspiracies separately
from substantive offenses. All conspiracy offenses were
consolidated in � 371 with two notable exceptions: situations in
which (1) the conspiracy would constitute the only offense and
(2) the punishment provided in � 371 would not be commensurate
with the gravity of the offense.26 Separate conspiracy
provisions were retained or added to Title 18 to address such
situations, yet no such provision exists for conspiracies
involving either aiding and abetting under � 2 or transporting
23 See 18 U.S.C. 壯 2, 371.
24 H.R. Rep. No. 304, 80th Cong., 1st Sess. (1947),
reprinted in, 1948 U.S.C.C.A.N. 2434, 2434-35.
25 Id., 1948 U.S.C.C.A.N. at 2448-49 (emphasis added).
26 Id. at 2476.
9

stolen goods under � 2314.27 To the contrary, the
appropriateness of punishment under � 371 for a conspiracy to
transport stolen goods in interstate commerce is specifically
discussed in the Reviser's Notes to that section.28
Furthermore, the Reviser's Notes to � 2314 expressly address
the interrelationship between that section and 壯 2 and 371 in
explaining the 1948 revisions to � 2314:
Reference to persons causing or procuring was omitted
as unnecessary in view of definition of "principal" in
section 2 of this title.
. . . .
Section 418a of title 18, U.S.C., 1940 ed., relating to
conspiracy, was omitted as covered by section 371 of
this title, the general conspiracy section.29
Finally, we note that other circuit courts which have
addressed the issue have uniformly refused to apply Wharton's
Rule to 18 U.S.C. � 2.30
We find that under these circumstances Wharton's Rule does
not preclude conviction for both the interstate transportation of
stolen goods (even when obtained in conjunction with an
instruction on aiding-and-abetting) and conspiracy to commit that
same substantive offense.
27 Id.
28 Id.
29 Id. at 2608-09.
30 United States v. Castro, 887 F.2d 988, 996 (9th Cir.
1989); United States v. Cerone, 830 F.2d 938, 945-46 (8th Cir.
1987), cert. denied, 486 U.S. 1006 (1988); United States v.
Buchanan, No. 86-2551, 1987 U.S. App. LEXIS 17714 at *9 (10th
Cir. 1987); United States v. Huber, 772 F.2d 585, 591 (9th Cir.
1985); United States v. Coffin, No. 82-3607, 714 F.2d 143 (6th
Cir. 1983) (table decision available on LEXIS).
10

2.
Double Jeopardy
The Double Jeopardy Clause of the Fifth Amendment protects
against, inter alia, multiple punishments for the same offense
imposed in a single prosecution.31 The test to determine whether
conduct that violates two separate statutory provisions
constitutes a single offense was first set out in Blockburger v.
United States:32
The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct
statutory provisions, the test to be applied to
determine whether there are two offenses or only one is
whether each provision requires proof of an additional
fact which the other does not.33
As with Wharton's Rule, a double jeopardy analysis focuses on the
elements of offenses charged, not on the evidence adduced at
trial.34
Payan alleges, without citation of supporting authority,
31 Brown v. Ohio, 432 U.S. 161, 165 (1977). The Double
Jeopardy Clause also protects against successive prosecutions of
the same offense. Id. at 165-67. The instant case, however,
does not involve such a situation.
32 284 U.S. 299 (1932). Although the Blockburger opinion
does not expressly discuss the Double Jeopardy Clause, it has
been widely treated as a seminal case in the analysis of double
jeopardy problems. See e.g. Grady v. Corbin, 495 U.S. 508
(1990); Brown v. Ohio, 432 U.S. at 166.
33 Blockburger, 284 U.S. at 304. Although the Blockburger
test is dispositive of claims involving multiple punishments
imposed in a single prosecution, such as the instant case,
additional analysis is necessary in cases involving claims of
successive prosecutions. See Grady v. Corbin, 495 U.S. 508;
Brown v. Ohio, 432 U.S. at 166-67; Ladner v. Smith, 941 F.2d 356.
34 United States v. Cowart, 595 F.2d at 1023, 1029 (5th Cir.
1979); see Brown v. Ohio, 432 U.S. at 166; Iannelli v. United
States, 420 U.S. at 785 n.17.
11

that his convictions violate the Double Jeopardy Clause because
each element of the conspiracy statute is replicated in 18 U.S.C.
� 2314 when it is coupled with the aiding and abetting statute.
We disagree.
To Payan's detriment, the rule is well established that,
"there is no violation of a defendant's Fifth Amendment right
against double jeopardy when [he is] convicted and punished for
aiding and abetting as well as conspiring to commit the same
[substantive] offense."35 Convictions for the interstate
transportation of stolen goods and conspiracy to commit that same
offense each require proof of elements not required for
conviction of the other offense. A conviction for conspiracy to
commit a substantive offense requires proof of an agreement to
commit an offense against the United States.36 In contrast,
neither aiding and abetting nor transportation of stolen goods
requires proof of an agreement.37 A conviction for the
transportation of stolen goods does, however, require proof of
several elements not essential to a conviction for conspiracy to
transport stolen goods.38 For example, a conviction for the
transportation of stolen property requires that the stolen goods
35 United States v. Cowart, 595 F.2d at 1033; United States
v. Goff, 847 F.2d 149, 175 (5th Cir.), cert. denied, 488 U.S. 932
(1988).
36 Pereira v. United States, 347 U.S. 1, 11-12 (1954); see
18 U.S.C. � 371.
37 Pereira, 347 U.S. at 11-12; see 18 U.S.C. 壯 2, 2314.
38 See 18 U.S.C. 壯 371, 2314.
12

actually be transported in interstate or foreign commerce.
Liability for conspiracy to transport stolen goods may attach
without the goods ever actually moving in commerce. Payan's
double jeopardy argument fails in light of this analysis.
B.
Bruton Violation
Payan complains that the government improperly introduced
evidence of a possibly incriminating out-of-court statement made
by a nontestifying codefendant, in violation of Bruton v. United
States.39 In Bruton, the Supreme Court held that when, in a
joint criminal trial of codefendants, an out-of-court statement
is made by a nontestifying codefendant and that statement
expressly incriminates a second codefendant, the statement cannot
be introduced at the joint trial, even if the trial court
instructs the jury that it should not consider the statement
against the second codefendant.40
In the instant case, the out-of-court statement at issue was
made to an investigating officer by Ancira after his arrest. At
trial, the government asked that officer if Ancira had a comment
about the federal charges against him. In response, the officer
repeated Ancira's statement: "You don't know what you are dealing
with. There is [sic] rich and powerful people involved."
Payan had the jury excused and objected to the admission of
this statement under Bruton, arguing that the reference to "rich
and powerful people" implicated Payan))his own attorney had
39 391 U.S. 123 (1968).
40 Id. at 137.
13

previously characterized Payan's family as "people of some
wealth" and "some power in the community." The court excluded
the statement and gave a curative instruction to the jury, but
refused to declare a mistrial.
The Bruton rule is not absolute. This aspect of the instant
case is controlled by the Supreme Court's decision in Richardson
v. Marsh,41 a case cited by neither party on appeal. In
Richardson, the Court noted that Bruton dealt with a
nontestifying defendant's confession that facially42 or
expressly43 implicated a codefendant. The court then declined to
extend Bruton beyond instances involving facially incriminating
confessions.44 As the out-of-court statement by Ancira at most
incriminated Payan by "contextual implication,"45 no reversible
error occurred when the trial court refused to declare a
mistrial.
C.
Sequestration of Witnesses
At the beginning of trial, Payan moved to place all
witnesses under "The Rule"))Rule 615 of the Federal Rules of
Evidence. In response, the court sequestered all witnesses
except for two case agents for the government))Texas Department
of Public Safety Sergeant Johnson and FBI Agent Truehitt. Payan
41 481 U.S. 200 (1987).
42 Id. at 207.
43 Id. at 208.
44 Id. at 211.
45 See id. at 206.
14

objected to those case agents not being sequestered but his
objection was overruled. Both government case agents remained in
court and subsequently testified over Payan's objection))Sergeant
Johnson first, followed by Agent Truehitt. Sergeant Johnson was
the witness who testified about Ancira's out-of-court statement
about rich and powerful people. Payan makes no specific
complaints on appeal about the substance of Agent Truehitt's
testimony. Instead, he complains only that (1) it was error for
the court to allow two case agents to remain and to testify, and
(2) Sergeant Johnson's testimony as to Ancira's statement was a
Bruton violation mandating a mistrial. Having already determined
that no reversible error resulted from the court's evidentiary
ruling on Sergeant Johnson's statement, we now turn to the
remaining aspects of the witness sequestration issue.
Rule 615 provides for the exclusion of fact witnesses from a
trial so that they cannot hear the testimony of other witnesses.
The rule does not, however, authorize the exclusion of certain
persons, including "an officer or employee of a party which is
not a natural person designated as its representative by its
attorney."46 A police officer who has been in charge of an
46 Fed. R. Evid. 615. Three classes of persons are excepted
from sequestration under Rule 615:
This rule does not authorize exclusion of (1) a party
who is a natural person, or (2) an officer or employee
of a party which is not a natural person designated as
its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to
the presentation of the party's cause. Id.
15

investigation generally comes within this exception.47
A more difficult question is whether Rule 615 authorizes
more than one such officer or employee of a party to remain in
the courtroom during the entire trial. In United States v.
Alvarado,48 we allowed two government agents to be excused from
the effect of Rule 615, stating:
The appellants have misconstrued the rule [Rule 615] by
stating that it allows only one agent to be excused
from its purview. We find that the decision as to how
many will be excused from sequestration is just as
discretionary with the trial judge was who will be
excused. Both decisions will be reversed only upon a
clear showing of abuse of discretion.49
This holding may not be broad enough, however, to exempt more
than one case agent solely because he is a representative of a
party. The Alvarado court found adequate grounds under both the
second and third exceptions to Rule 615 for allowing both
government agents to remain in court during the trial.50
Other courts have held that a non-natural party may
designate only one representative under Rule 615(2).51 We have
never directly decided the issue,52 but we have held consistently
47 Fed. R. Evid. 615 advisory committee's note.
48 647 F.2d 537 (5th Cir. Unit A 1981).
49 Id. at 540.
50 Id.
51 See United States v. Pulley, 922 F.2d 1283, 1284 (6th
Cir.), cert. denied, ___ U.S. ___, 112 S.Ct. 67, 116 L. Ed. 2d 42
(1991).
52 See United States v. Ramirez, 963 F.2d 693, 703 (5th
Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 388, 121 L. Ed. 2d
296 (1992); United States v. Causey, 609 F.2d 777, 778 (5th Cir.
16

that the district court's decision on the sequestration of
witnesses is reviewed for abuse of discretion,53 and that a
violation of Rule 615 will only warrant reversal if the defendant
can show that prejudice resulted.54
As Payan makes no credible showing that the district court
abused its discretion in allowing the two government witnesses to
remain present during the trial or that he was prejudiced by
their doing so, his claim of reversible error fails. Payan
alleges no substantive error in the testimony of Agent
Truehitt))the second of the government's excepted witnesses to
testify.55 And, although Payan took issue under Bruton with some
of Sergeant Johnson's testimony, we have already found that no
reversible error resulted from that testimony. Consequently, no
reversible error resulted from the court's allowing both
government witnesses to remain present during Payan's trial.
D.
The Fine
In addition to a term of incarceration of twenty-seven
1977).
53 United States v. Samples, 897 F.2d 193, 197 (5th Cir.
1990); Alvarado, 647 F.2d at 540.
54 Ramirez, 963 F.2d at 704, Causey, 609 F.2d at 778.
55 We note an apparent inconsistency between the record and
the characterization of that record in Payan's brief on appeal.
The brief describes Sergeant Johnson's testimony in detail, then
states: "Earlier in the trial the government's other excluded
witness, F.B.I. Agent John Truehitt, testified concerning his
duty as case agent and carrying out the investigation."
(Emphasis added.) Contrary to this characterization, Sergeant
Johnson testified immediately before Agent Truehitt. The court
disapproves of this attempt by Payan's counsel to misrepresent
the record and cautions against such conduct in the future.
17

months, to be followed by three years of supervised release,
Payan was also sentenced to pay a special assessment of $600, a
fine of $5,000, and restitution of $84,857. Payan initially
claims that the court erred in assessing substantial restitution
because he has no present ability, and an uncertain future
ability, to pay these sums.
The district court must consider, inter alia, "the financial
resources of the defendant, the financial needs and earning
ability of the defendant and the defendant's dependents" in
determining whether to order restitution and the amount of any
such restitution.56 We review the district court's award of
restitution only for abuse of discretion.57
Here, the district court expressly found that Payan had
"sufficient assets with which to pay this fine" and "adequate
means to pay the restitution." The record contains evidence
sufficient to support these findings. The government presented
evidence that between January, 1990 and May, 1991, Payan had
written several six-figure checks and "a lot" of five-figure
checks on his personal (not business) checking account. No one
else was authorized to sign on that account. Payan himself
testified that over a period of time he had paid Ancira
approximately $200,000 for the stolen farm equipment and had
subsequently resold it at a profit. He also testified that he
56 18 U.S.C. � 3664.
57 United States v. St. Gelais, 952 F.2d 90, 97 (5th Cir.),
cert. denied, ___ U.S. ___, 113 S. Ct. 439, 121 L. Ed. 2d 358
(1992).
18

controlled his family's several thousand acre ranch. The
district court did not abuse its discretion in ordering
restitution or in arriving at the amount ordered repaid.
Payan's second and more creative restitution argument
implicates the issues of when he is to pay that restitution and
what the potential effect of non-payment would be. The judgment
recites that the special assessment and restitution were due
immediately and that the fine was due not later than February 15,
1992. Payan's sentence was memorialized on a standardized
government form entitled "Judgment in a Criminal Case."58 The
printed portion of this form addressing supervised release
included the following standard language: "If this judgment
imposes a restitution obligation, it shall be a condition of
supervised release that the defendant pay any such restitution
that remains unpaid at the commencement of the term of supervised
release."
On appeal, Payan interprets the terms of this judgment as
"condition[ing] his release to supervised release upon pre-
payment of those amounts." According to Payan, if he does not
pay these sums by the end of his twenty seven months of
confinement, "he will either not be released or supervised
release will be immediately revoked and he'll be sentenced to up
to three [additional] years in the penitentiary."
Payan misapprehends the effect of an inmate's failure to pay
restitution. Nothing in the district court's judgment can fairly
58 U.S.GPO:1990-722-448/10286.
19

be read to imply that Payan will not be released to supervised
release at the end of his term of imprisonment even though he may
not then have paid the full amount of restitution. On the
contrary, the boilerplate language of the judgment form can only
be read sensibly as making the payment of such restitution a
resolutory condition or condition subsequent))not a suspensive
condition or condition precedent))of supervised release. If
Payan should fail to pay the restitution by the time of his
supervised release, all that the government could do would be to
seek to enforce that order of restitution.59 More significantly,
even if such future collection efforts by the government should
prove fruitless, Payan's supervised release still would not be
revoked automatically. Nevertheless, an examination of the
controlling law and the enforcement mechanisms available to the
government is appropriate to assuage Payan's fears fully.
1.
Supreme Court Guidance
In Bearden v. Georgia,60 the Supreme Court held that a
defendant's probation could not automatically be revoked for
failure to pay a fine or restitution even though his probation
59 18 U.S.C. � 3663 provides in part:
(h) An order of restitution may be enforced))
(1) by the United States))
(A) in the manner provided for the collection and
payment of fines in subchapter B of chapter 229 of this
title [18 U.S.C. 壯 3611 et seq.]; or
(B) in the same manner as a judgment in a civil action;
and
(2) by a victim named in the order to receive the
restitution, in the same manner as a judgment in a civil
action.
60 461 U.S. 660 (1983).
20

was conditioned on such payment.61 Instead, the proper court
must inquire into the reasons for the failure to pay.
If the defendant is found to have willfully refused to pay
the fine or restitution when he had the means to do so, or to
have failed to make sufficient bona fide efforts to obtain
employment or borrow money with which to pay the fine or
restitution, the government is justified in using imprisonment as
a sanction to enforce collection.62 If, however, the defendant
is found to have made all reasonable efforts to pay the fine or
restitution but was still unable to do so through no fault of his
own, the court must consider alternative means of punishment in
lieu of more imprisonment.63 Under such circumstances,
imprisonment is acceptable only if alternative measures are not
adequate to protect the government's interest in punishment and
deterrence.64 Nothing in the language of the Bearden opinion
prevents its application to any given enforcement mechanism.
2.
Revocation of Supervised Release
A term of supervised release may be revoked if, after the
court considers the factors set forth in 18 U.S.C. � 3553 (a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6), it
finds by a preponderance of the evidence that the person violated
61 Id. at 661-62.
62 Id. at 668.
63 Id. at 668-69.
64 Id. at 672.
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a condition of supervised release.65 Such a determination must
be made in accordance with the Federal Rules of Criminal
Procedure that are applicable to revocation of probation and the
provisions of the applicable policy statements issued by the
United States Sentencing Commission.66
The Sentencing Commission promulgated its policy statements
regarding violations of supervised released from an approach that
considered a violation resulting from a defendant's failure to
comply with court ordered conditions of supervised release as a
"breach of trust."67 Under this approach,
[w]hile the nature of the conduct leading to the
revocation would be considered in measuring the extent
of the breach of trust, imposition of an appropriate
punishment for any new criminal conduct would not be
the primary goal of a revocation sentence. Instead the
sentence imposed upon revocation would be intended to
sanction the violator for failing to abide by the
conditions of the court-ordered supervision, leaving
65 18 U.S.C. � 3582. The relevant factors from � 3553 are:
(1) The nature and circumstances of the offense, and the history
and characteristics of the defendant; (2) the need for the
sentence imposed to afford adequate deterrence to criminal
conduct; (3) the need for the sentence imposed to protect the
public from further crimes of the defendant; (4) the need for the
sentence imposed to provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner; (5) the kinds of
sentences and the sentencing range established for the applicable
category of offense committed by the applicable category of
defendant as set forth in the Sentencing Guidelines; (6) any
pertinent policy statement issued by the Sentencing Commission
that is in effect on the date that the defendant is sentenced;
and (7) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct. 18 U.S.C. � 3553.
66 18 U.S.C. � 3582.
67 United States Sentencing Commission, Guidelines Manual,
Ch. 7, Pt.A intro. comment.
22

the punishment for any new criminal conduct to the
court responsible for imposing the sentence for that
offense.68
The policy statement specifically addressing revocation of
supervised release provides that "the court may (A) revoke
probation or supervised release; or (B) extend the term of
probation or supervise release and/or modify the conditions of
supervision" if the defendant commits a non-criminal violation of
a condition of supervised release.69 This permissive language
stands in contrast to that of the preceding provision, which
provides that: "Upon a finding of a Grade A or B violation
[generally offenses punishable by imprisonment exceeding one
year], the court shall revoke probation or supervised release."70
The application notes to this policy statement further
demonstrate that the Sentencing Committee does not intend for
supervised release to be revoked automatically upon failure to
pay court ordered restitution:
Revocation of probation or supervised release generally
is the appropriate disposition in the case of a Grade C
violation [which includes non-criminal violations of
conditions of supervision] by a defendant who, having
been continued on supervision after a finding of
violation, again violates the conditions of his
supervision.71
68 Id.
69 U.S.S.G � 7B1.3(a)(2) (emphasis added); see U.S.S.G. �
7B1.1.
70 U.S.S.G. � 7B1.3(a)(1) (emphasis added); see U.S.S.G. �
7B1.1.
71 U.S.S.G. � 7B1.3, comment. (n.1).
23

We find nothing in the statutory or guidelines provisions dealing
with revocation of supervised release to suggest that they may or
would be applied in violation of Bearden.
3.
Other Criminal Enforcement Mechanisms
Revocation of supervised release is not the only enforcement
mechanism available to the government that could result in
Payan's reincarceration for failure to make restitution. The
government alternatively could attempt to enforce the order in
the method provided for collection and payment of fines.72 Under
those provisions, the government could seek to have Payan
resentenced for his failure to pay the restitution,73 or could
proceed under the criminal default statute.74
18 U.S.C. � 3614 (Resentencing Upon Failure to Pay a Fine)
appears in large part to codify Bearden. It provides:
(a) Resentencing. Subject to the provisions of
subsection (b), if a defendant knowingly fails to pay a
delinquent fine the court may resentence the defendant
to any sentence which might originally have been
imposed.
(b) Imprisonment. The defendant may be sentenced to a
term of imprisonment under subsection (a) only if the
court determines that))
(1) the defendant willfully refused to pay the
delinquent fine or had failed to make sufficient
bona fide efforts to pay the fine; or
(2) in light of the nature of the offense and the
characteristics of the person, alternatives to
imprisonment are not adequate to serve the
purposes of punishment and deterrence.75
72 18 U.S.C. � 3663.
73 18 U.S.C. � 3614.
74 18 U.S.C. � 3615.
75 18 U.S.C. � 3614 (emphasis added).
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Similarly, 18 U.S.C. � 3615 (Criminal Default) requires that the
failure to pay the fine be willful before an additional sentence
can be imposed on the defendant:
Whoever, having been sentenced to pay a fine, willfully
fails to pay the fine, shall be fined not more than
twice the amount of the unpaid balance of the fine or
$10,000, whichever is greater, imprisoned not more than
one year, or both.76
Clearly, neither of these provisions sanctions the automatic
reincarceration of a defendant on failure to pay court ordered
restitution.
Payan has presented no viable argument that he will be held
in prison indefinitely until he pays the full amount of
restitution or that his supervised release will automatically be
revoked if he has not made restitution by the end of his term of
incarceration. On the other hand, Payan has good reason to be
concerned about how long he will remain free on supervised
release if he volitionally refuses to make restitution (or at
least bona fide efforts do so) prior to completion of his prison
term. Apparently, the government could start proceedings
immediately to enforce the order of restitution, and those
proceedings could eventually result in Payan's return to prison.
An order of restitution, after all, would be meaningless if no
mechanism existed for its enforcement. We have no reason to
believe that, if institution of one or more of those mechanisms
becomes necessary in the instant case, they will not be applied
in a lawful manner. But if they are not, Payan will be free to
76 18 U.S.C. � 3615 (emphasis added).
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seek review in the courts.
III
CONCLUSION
We find that neither the Wharton Rule nor the Double
Jeopardy Clause were violated by Payan's conviction for both
conspiracy to transport stolen property the underlying
substantive offenses. We also find that the trial court
committed no reversible error (1) in refusing to grant a mistrial
after the government's witness referred to an out-of-court
statement by Payan's non-testifying codefendant, or (2) by
allowing two government witnesses to remain in the courtroom
unsequestered for the duration of the trial. Neither did the
district court abuse its discretion in ordering Payan to make
restitution or in the amount of the restitution thus ordered.
Finally, we find that the district court did not improperly
condition Payan's release to supervised release on his payment of
the special assessment, fine, or restitution. For the foregoing
reasons, the convictions and sentence of Pedro Carrillo Payan are
AFFIRMED.
26