The Federal Criminal Appeals Blog

Two doctors, married to each other, were accused of health care fraud. They pled guilty and fought at sentencing about the amount of the restitution that they would have to pay back to the insurance companies for what they did. And, in United States v. Sharma, the Fifth Circuit held that a district court can't just make up a restitution number.

Dr. Arun Sharma and Dr. Kiran Sharma ran two pain management clinics in Texas.

At these clinics, the Doctors Sharma would give pain injections to patients. The health care fraud involved "paravertebral facet-point injections."

I have no idea what those are, but they sound really unpleasant. Happily for the Sharma's patients, many of the injections which were billed never happened. Though, that the injections never happened was not so happy for the insurers or, ultimately, the Sharmas.

Instead, two things would happen. First, sometimes a cheaper faster (and, I imagine, easier for the patient) "tigger point injection" would be given. The doctor would then "upcode" the injection as a paravertebral facet-point injection, since that injection pays more.

If you've ever done a health care fraud case, you know that upcoding is a huge deal.

Then, second, sometimes the doctors would simply create phantom bills for injections that never happened.

The Sharmas were indicted for 64 counts of conspiracy, health care fraud, mail fraud, money laundering, and unlawful distribution of controlled substances. They ultimately pled guilty to one count of conspiracy and one count of health-care fraud.

The big issue at sentencing was restitution. In their plea agreements, the Sharmas agreed that the district court would determine the restitution amount and that they would do what they can to pay it.

Though, in an atypically compassionate move, the government agreed to place $1,500,000 of the money that the Sharmas had received in an educational trust for their son.

Before sentencing, a probation officer prepared a Presentence Report. The PSR determined that the loss amount was $43,318,170.93 and that the Sharmas should pay restitution in that amount. It was not a coincidence that the $43 million amount was submitted by the insurance companies.

The Sharmas hired a forensic accountant and submitted an alternative restitution figure. The accountant backed out losses that the insurance company said were the result of procedures other than injections - like the allergy treatments that Kiran Sharma provided which were undisputedly legitimate.

The accountant also said that the losses on the upcoded procedures was done incorrectly - the loss should be the difference between the procedure that was done and the procedure that was billed for. It should not be just the cost of the procedure that was billed for.

The account calculated the loss at $21,028,963.61. Which is still not chump change, but it's a lot lower than the $43 million.

The district court rejected the accountants work, accepted the insurance companies' number, and ordered restitution of $43 million.

The Fifth Circuit reversed. Noting that "excessive restitution awards cannot be excused by harmless error; every dollar must be supported by record evidence," the court of appeals said that "[b]y . . . directly incorporating the amounts from the victim impact statements into the PSRs as actual losses, the Probation Office went astray."

The Fifth Circuit picked out three examples of victim impact statements that were pretty egregious:

One insurer, Tricare, claimed as loss all of its payments to the Sharmas dating back to 1997. Inasmuch as the charged conspiracy did not begin until 1998, however, the 1997 payments plainly do not constitute actual losses under the MVRA.18 A second insurer, Texas Amerigroup, reported that it paid the Sharmas $650,775.01 for injections, out of a total of $929,884.55 paid to them for all treatments. Yet the Probation Office listed the larger figure, the one for total payments, as actual loss instead of listing only the lesser amount that the insurer paid for injections. This too overstates the insurer's loss by including payments not caused by the specific convictions.19 A third insurer, Principal Life Insurance, attached a spreadsheet of all of its payments to the Sharmas, but expressly stated that it was "not sure which claims relate to the guilty plea." The Probation Office nevertheless reported all of those payments as actual loss.

The case was sent back for the district court to recalculate the amount of restitution that the Sharmas owe.

When a person is convicted of a federal crime, especially in a fraud case, but in lots of other kinds of federal criminal cases too, the district court sometimes also orders that the person pay restitution.

The point of restitution is that the person has to pay back any money that they took - they have to make any victims of the crime whole again.

To satisfy a restitution judgment, the federal government can go try to get that money from assets that a person has - they can go after bank accounts and retirement accounts and houses.

A frequent question many folks have is whether they can also go after property that a person jointly owns with his or her spouse.

The Eleventh Circuit recently opined on how this works in United States v. Duran.

Duran Duran

Lawrence Duran and Carmen Duran were married.

Then Lawrence Duran was convicted of participating in a conspiracy to defraud Medicare. As a part of his sentence, he was ordered to pay restitution of more than $85 million. He was also sentenced to 50 years in prison.

Before Mr. Duran's legal troubles, he owned an apartment with Mrs. Duran in New York City.

The Durans divorced before Mr. Duran was sentenced. In the divorce, it appears that Mrs. Duran was given sole title to the New York apartment.

Hungry Like The Wolf

After Mr. Duran was sentenced, the government wanted its $85 million. It applied for a writ to execute the restitution judgment. In the application for the writ, the government said that the apartment was a substantial asset that it should be able to collect.

When the prosecutors applied for the writ of execution, they told the court that they were serving it by using the district court's electronic case filing system. By filing it, in other words, it would be sent electronically to any attorney who had filed a notice of appearance in the case.

Because Carmen Duran wasn't a lawyer involved in the case - and didn't have a lawyer in the case - she didn't get a copy of the motion asking for a writ.

The Reflex

Getting an application from the government, though, caused the Court to approve the application for a writ. The writ ordered the Marshals Service to satisfy the judgment against Lawrence Duran by "levying on and selling" the apartment.

Carmen Duran filed a motion to dissolve the writ and not have her apartment sold. She said she was an innocent owner of the apartment who deserved an evidentiary hearing. Mrs. Duran said that she got half the apartment in the divorce anyway.

The government opposed Mrs. Carmen's motion, saying that she could get half of whatever they collected when the Marshals sold it. They said that their judgment lien had priority over Mrs. Duran's unrecorded claim.

When you look at the property records of New York, apparently, the apartment is listed as jointly owned by both Durans.

It seems that Mrs. Duran's divorce lawyer failed to record the new deed that showed she owned the apartment alone.

So Misled

The district court said it didn't have jurisdiction to hear the claim. If Mrs. Duran wants to challenge this, the district court's view was that the right place for a property dispute in New York was a state court in New York.

Mrs. Duran appealed.

The Eleventh Circuit started by looking at the Fair Debt Collections Act - the statute that the government has to use to collect a restitution judgment.

As the Eleventh Circuit explained,

The Act limits the authority of the United States to levy against jointly-owned property. The United States may levy "property which is co-owned by a debtor and any other person only to the extent allowed by the law of the State where the property is located." Id. § 3010(a). With regard to levying against property under a writ of execution, "[c]o-owned property [is] subject to execution [only] to the extent such property is subject to execution under the law of the State in which it is located." Id. § 3203(a).

The Act also says the government has to give notice to any co-owner or any other person with an interest in the property before they can take it. And the government has an affirmative burden to look for people who might have an interest.

Most importantly, the Eleventh Circuit said,

The Act obliges a district court to adjudicate any contested ownership interests in property subject to a writ of execution. The Act provides that the United States may levy only property in which a judgment debtor has a "substantial nonexempt interest." Id. § 3203(a). To that end, the district court must determine whether the debtor has any ownership interests in the property, and the district court must determine the ownership interests of any person who moves to dissolve or modify any writ.

So, all ended well for Mrs. Duran - except as to her ex-husband's fifty year prison sentence.

The Eleventh Circuit directed that

On remand, the district court must determine the respective ownership interests, if any, of Carmen and Lawrence in the apartment when the United States obtained the writ of execution and whether Lawrence had a "substantial nonexempt interest" in the apartment that the United States could levy.

It's hard, when things go wrong, not to seek a mulligan. And we all get off on the wrong foot sometimes.

When a case is in front of a federal judge for sentencing, though, a mulligan is only very rarely available.

The Fifth Circuit case of United States v. Murray shows why.

Three Men and a Ponzi (scheme)

Ted Murray, David Lapin, and Jeffrey Wigginton were charged with mail fraud, conspiracy to commit mail fraud, securities fraud, and money laundering. The charges arose out of a Ponzi scheme.

Mr. Murray took his case to trial and was convicted of everything but the money laundering.

Mr. Wigginton entered a plea to conspiracy to commit mail and securities fraud. In the plea,

He agreed to pay "full restitution to the victim(s) regardless of the counts of conviction"; admitted" that any fine or restitution imposed by the Court will be due and payable immediately upon sentencing"; and pledged that he would "not attempt to avoid or delay punishment." Wigginton also agreed to "waive the right to appeal the sentence imposed or the manner in which it was determined," unless the sentence exceeded the statutory maximum.

Mr. Lapin pled guilty to misprison of a felony. I'm thinking he either had great facts or a good lawyer.

Each man was sentenced, at the latest, on March 1, 2010.

At the sentencing hearings, the district court determined that none of the men owed restitution.

A Federal Prosecutor Later Discovered a $ 17,564,534.21 Mistake

The government, a few months after the sentencing hearings, realized that it meant to seek restitution. In the amount of $17,564,534.21.

It filed a motion to have the district court order restitution. The men - who were trying to move on after the sentencing hearing - objected.

The district court held a number of hearings. Finally, it ordered that the men pay the restitution.

They appealed.

A District Court Can't Reopen A Sentencing Willy-Nilly

The Fifth Circuit set the table of issues this way,

A trial judge lacks authority to correct a sentencing error unless Congress has provided otherwise. Outside of such a provision of authority, errors at sentencing may be corrected only on appeal. The court below amended defendants' sentences, requiring defendants to make restitution to their victims. We are pointed to no potential source of authority for this change of sentence except the Mandatory Victims Restitution Act of 1996 (MVRA).

The MVRA, though, doesn't let a district court go back to reopen a sentencing hearing when the district court has already made a finding, under the MVRA, that restitution wasn't appropriate because, in the language of the statute

(A) the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process

What's great about this is that in two of the men's cases, the district court didn't make this finding explicitly. Rather, by adopting the PSRs as factual findings - which contained language that the number of victims was not determinable - and the Fifth Circuit held that this counted as the required finding under the statute.

So, the MVRA doesn't let the district court reopen the case.

Then the general rule that a federal sentencing can't be reopened applies, and the district court's imposition of $17 million and change in restitution was vacated.

When Is An Appeal Waiver Not An Appeal Waiver

Mr. Wigginton gave up his right to appeal his sentence, however. The government argued that this meant he also gave up his right to appeal the new restitution order.

The Fifth Circuit disagreed.

Because an appeal waiver has to be unambiguous, if it could be interpreted two ways, it won't be enforceable.

Here, the court of appeals found that the appeal waiver could be read to apply to "any sentence imposed at the end of any sentencing process regardless of how extended and illegal" or it could mean "an appeal of a sentence imposed as long as it's done during the authorized sentencing process."

Personally, I find that second reading a little strained, but I'm glad it worked out for Mr. Wigginton.

Because the appeal waiver can be read two ways, it didn't bar his appeal.

And the men avoided a massive restitution judgment.

Gregory Fair was an internet entrepreneur. Of sorts.

Mr. Fair's Criminal Copyright Enterprise

He sold pirated copies of outdated Adobe software on Ebay. His customers could buy this outdated software, then, with an update code Mr. Fair was also able to provide, they could pay Adobe to upgrade their software to the most current version.

Mr. Fair's customers would then pay, for example, $325 and a little bit of legwork for Adobe software that would cost more than $700 on the open market.

A deal like that sells itself, and over the course of six years his total sales came in around $1.4 million.

All good things must come to an end.

The Postal Service, after hearing complaints from Adobe, launched a sting. Mr. Fair was charged with a criminal copyright offense under 18 U.S.C. § 2319. He pled guilty.

Restitution Arguments at the Sentencing Hearing

Though the plea agreement contained a lot of concessions, it did not contain an agreement about any restitution amount.

Before sentencing, the government provided a spreadsheet of the amount of revenue that Mr. Fair made selling software as a part of his software enterprise. His total sales were $767,465.99. The government proposed that this would be an adequate measure of Adobe's loss for restitution purposes.

Mr. Fair disagreed. He argued that

(1) restitution under the MVRA must take the form of "actual loss" to the victim; (2) "actual loss cannot be equated to 'intended loss' or to gain by the defendant"; and (3) the government had offered "no proof . . . of any actual loss by [the victim,] Adobe Systems."

Moreover, in a move that may be genius or chutzpah, he argued that "his piracy might in fact have benefitted Adobe Systems by increasing consumers' awareness and use of its products."

A temperate man, he did not request payment from Adobe for his work as a part of the sentencing proceeding.

The district court agreed with the government. The district court reasoned that

"[i]t's undisputed that [Fair]'s revenue from the sales of pirated Adobe products was at least $767,000," and that "if anyone held the right to collect revenue from the sale of these products, it was Adobe [Systems]," and so it followed that "since the sales did occur and revenue was generated, and the right to the revenue was held by Adobe [Systems] and not by [Fair], that Adobe [Systems] has the right to be restored to the revenue that it lost [in] its right to collect on actual sales that were made."

Mr. Fair appealed.

Mr. Fair Goes To The D.C. Circuit

The D.C. Circuit, in United States v. Fair, reversed the restitution award.

About the district court's reasoning, the D.C. Circuit started by saying that just about no federal appellate court thinks the district court's approach is supported by the law.

The circuit courts of appeals are in general agreement that the defendant's gain is not an appropriate measure of the victim's actual loss in M[andatory Victim Restitution Act] calculations. See Zangari, 677 F.3d at 92-93 (2d Cir.); Arledge, 553 F.3d at 899 (5th Cir.); United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008); Chalupnik, 514 F.3d at 754 (8th Cir.); United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007); cf. United States v. Kuo, 620 F.3d 1158, 1164-65 (9th Cir. 2010); United States v. Harvey, 532 F.3d 326, 341 (4th Cir. 2008); United States v. Badaracco, 954 F.2d 928, 942-43 (3d Cir. 1992).

So the amount that Mr. Fair made on the sales of copyright-violating software isn't the right measure of what Adobe lost. Fair enough. What is?

Sometimes, in a criminal copyright case, the copyright violator puts things into the market that completely block the legitimate seller from selling at all.

For example, if I sell bootlegged copies of The Green Bag ("an entertaining journal of law") for a mere $35 a subscription per year, it would prevent The Green Bag from being sold for many consumers.

In a case like that, the D.C. Circuit said, the restitution owed to The Green Bag would be not the cost of its lost sales - so not $40 per subscription I sold - but rather The Green Bag's profits per subscription. Or, as the D.C. Circuit put it,

the actual loss to the displaced (authentic) seller is the profit lost from the displaced sales -- not the retail value of the goods that would have been sold.

Here, though, the government put on no such evidence of Adobe's lost profits

the government offered no evidence of either the number of sales that Adobe Systems likely lost as a result of Fair's scheme or the profit that Adobe Systems would have made on any such diverted sales. The record contains only a spreadsheet tallying Fair's eBay sales and unsubstantiated, generalized assertions of government counsel regarding Adobe Systems' lost sales. . . . There thus was no evidentiary basis on which the district court could find that had Fair's customers not purchased pirated Adobe software from him at a greatly reduced price, all or any portion of them would have purchased full-priced versions from Adobe Systems.

Moreover, to the extent that the government thought that it could simply use the guidelines infringement loss number as a restitution amount, the court of appeals slapped it down

To the extent the government defends the use of gross proceeds as "consistent with the calculation of loss under the Sentencing Guidelines," Appellee's Br. at 15, it ignores the different approaches in the Guidelines and the M[andatory Victims Restitution Act]. Essentially, the government blurs the line between the "infringement amount" calculated under Sentencing Guidelines § 2B5.3 in criminal copyright cases, which is derived by multiplying the retail value of the infringed or infringing items by the quantity of infringing items, and the restitution amount calculated under the MVRA, which must reflect the actual, provable loss suffered by the victim.

But that's not all, gentle readers.

No Second Bite on Remand

The government, perhaps seeing which way the wind was blowing, asked the D.C. Circuit to limit the damage. If we lose, the government asked, please at least remand for a new hearing on restitution.

The government wanted another bite at the apple.

The D.C. Circuit was having none of it.

No special circumstances are present that would warrant reopening the record on restitution in Fair's case. The government's burden to prove actual loss under the MVRA was well-established before sentencing. See also Tr. Oct. 22, 2009 at 23 (government counsel stating, "[w]e welcome the burden to prove restitution."). The government was allowed to present evidence . . . . Indeed, whether the government had offered evidence demonstrating actual loss was the central issue addressed during the parties' restitution discussion at the sentencing hearing.

Because the government already had a full and fair opportunity to prove that restitution was appropriate, and it failed to do so, the D.C. Circuit vacated the restitution award and denied the government another chance to meet its burden.

Fair enough.

Albert Burgess made some bad decisions.

First, he downloaded a mass of child pornography. The folks at Immigrations and Customs Enforcement (or "ICE") were able to find him through the payment information he supplied to the child porn purveyor.

ICE asked for and received a warrant to search his house. While his house was being searched he agreed to be questioned.

He told law enforcement that he was the only person who used his home computer. That was probably also a mistake.

They found child pornography on his computer - and on CDs in his house.

He was arrested. While he was waiting to be checked into jail, a female law enforcement agent asked if she could keep talking to him. He said yes.

This was also a mistake. I don't know why it seems there are a lot of female agents working child porn cases, but folks accused of these crimes seem to be really willing to talk to them. There's something going on there - law enforcement is being smart in a way not dissimilar to Hooters.

Here's how the Fourth Circuit describes Mr. Burgess's statements:

Burgess, looking down at a copy of the arrest warrant, stated, "You've got me." He admitted to viewing child pornography between two and three times per week, and also informed Redden that he knew of significant child pornography trafficking operations in Russia and the Philippine Islands (the Philippines).

Ok, so far this is relatively typical for a child pornography case. Then things go a little off the rails. Mr. Burgess is released before trial.

The Perils Of Do-It-Yourself 5K1.1

While he's on pretrial release,

On March 7, 2008, Burgess placed a telephone call to [law enforcement] stating, "Well, I've got to help myself. I've got to talk to somebody." Burgess met with the federal agents at his home three days later, signed a statement waiving his Miranda rights, and provided details regarding his pornography sources in Russia and the Philippines. It was Burgess' understanding that the federal authorities would use the information and email addresses he had provided to assist in the investigation of these internet pornography sources. Burgess was under the impression that he was bargaining with the federal agents, and later testified to this effect, stating: "You know, you've got to give [the government] something before they can give you something. You can't sit there, you know, and extract something from them." Burgess also confessed to the federal agents that he viewed child pornography for five hours per day while masturbating, and that he did so to prevent himself from actually committing offenses on a child.

I agree that Mr. Burgess needed to talk to someone. I just think that he probably needed to talk to a lawyer, and not a federal law enforcement agent.

In exchange for his efforts to "help" Mr. Burgess was sentenced to 292 months in prison and a lifetime of supervised release.

The Fourth Circuit Rejects Easy Restitution For Child Porn Victims

The district court in North Carolina also sentenced him to pay restitution to a known victim of child pornography - Vicky.

In United States v. Burgess, the Fourth Circuit joined a number of other circuits to reject this request for restitution for victims of child pornography.

It did so in a way similar to how other courts have approached it - the district court has to make findings of how the defendant in this case caused the harm complained about by the child pornography victim. It's not per se impossible, it's just going to be massively difficult to accomplish.

So, on remand,

The primary difficulty that will face the district court on remand will be the determination, if the court finds that proximate causation has been established, of the quantum of loss attributable to Burgess for his participation in Vicky's exploitation. Vicky is entitled to the "full amount" of restitution for such loss, and we leave the calculation of such an amount to the district court in the first instance. While the district court is not required to justify any award with absolute precision, the amount of the award must have a sufficient factual predicate. Vicky's loss is an aggregation of the acts of the person who committed and filmed her assault, those who distributed and redistributed her images, and those who possessed those images. The culpability of any one defendant regarding Vicky's loss is dependent at least in part on the role that defendant played with respect to her exploitation.

Fair enough - in this line of cases that's kind of the baseline in light of what the First, Second, Third, Fifth, Ninth, Eleventh, and D.C. Circuit's have already held. But wait, there's more . . .

Every Downloading Of Child Pornography Is Separate For Federal Criminal Restitution

But then the Fourth Circuit goes further notes that joint and several liability does not apply for child pornography restitution awards - at least in cases involving possession and receipt.

We also observe that the tort concept of joint and several liability is not applicable in this context. In situations such as Vicky's, individuals viewing her video recordings inflict injuries at different times and in different locations. Therefore, those individuals cannot have proximately caused a victim the same injury. As the court observed in Monzel, "so long as the requirement of proximate cause applies, as it does here, a defendant can be jointly and severally liable only for injuries that meet that requirement." Monzel, 641 F.3d at 539 (citing Restatement (Second) of Torts § 879 cmt. b (1979) for the proposition that individual instances of exploitation are separate injurious results).

This is going to create an odd kind of restitution award if a district court is ever able to find that a child pornography possessor has proximately caused harm to someone in Vicky's situation.

How would you approach that at a hearing? The images depicting Vicky were downloaded, let's say, 100,000 times. Is the quantum of harm from each download the same? Do you just divide? Does it matter if one person says he looked at the images every day and others looked weekly? Do you want to count views or downloads?

How desperately are district court judges going to find a way to avoid thinking too much about any of this?

You Can't Assume Yourself Into Immunity

And, to answer the lingering question from Mr. Burgess's statements were entitled to any kind of immunity because he was trying to cooperate with law enforcement to get his sentence reduced, the Fourth Circuit said no.

Mr. Burgess argued that because he was trying to provide substantial assistance to help catch child pornographers in the Philippines and Russia, his statements couldn't be used against him.

Sometimes, a lawyer can negotiate that deal for a client - which is why Mr. Burgess probably should have used a lawyer to negotiate his immunity deal.

As the Fourth Circuit explained,

A defendant's alleged agreement to cooperate with law enforcement authorities in exchange for transactional immunity is governed by traditional principles of contract law, and therefore an agreement of this nature may be express or implied. United States v. McHan, 101 F.3d 1027, 1034 (4th Cir. 1996). Irrespective whether the alleged agreement is express or implied, the defendant must establish that a meeting of the minds occurred such that the government agreed to refrain from prosecuting the defendant in return for his cooperation. Id. (holding that the same standard applies with respect to equitable immunity).

In this case, Burgess can identify no action or statement on the part of the government sufficient to establish a meeting of the minds regarding immunity for his statements. Burgess was informed of his Miranda rights before every exchange with the authorities, and at no time did a law enforcement agent make any statement or representation concerning immunity. Additionally, the agents' conduct cannot be viewed objectively as impliedly offering immunity to Burgess or as accepting such an offer from him. Additionally, the agents' conduct cannot be viewed objectively as impliedly offering immunity to Burgess or as accepting such an offer from him. Indeed, Burgess' own testimony at trial demonstrated his mistaken belief that, despite repeated Miranda warnings, he expected to receive a benefit from providing information to the authorities. Such a mistaken belief, however, cannot serve as the foundation for an immunity claim.

It's a dark side to the rise of DIY culture. There's nothing wrong with DIY painting or bicycle repair. Perhaps it's less helpful to have do it yourself negotiations with federal criminal authorities.

Related Links:

• A District Judge Can't Sanction A Lawyer For Filing A Motion Just Because He Really Hates The Lawyer's Client (or, why you shouldn't cross a border with child pornography on your laptop


• A District Court Can't Take Away Alcohol and Technology For The Rest of A Person's Life, Even If He's Guilty of A Child Porn Offense


• The Fifth Amendment Protects You From Being Compelled To Unencrypt Your Hard Drive


• Club Rules, Prejudicial Evidence, and Hard Distinctions About Child Pornography


• Federal Child Pornography Charges

Justice Scalia recently made headlines by taking a cheap shot at the ranks of federal district court judges.

As the Associated Press reported (hat tip to Sentencing Law and Policy):

Supreme Court Justice Antonin Scalia says the quality of federal judges has suffered because there are too many of them. Testifying before a Senate committee Wednesday, Scalia blamed Congress for making federal crimes out of too many routine drug cases. In turn, that created a need for more judges.

"Federal judges ain't what they used to be," he said during a rare appearance before the Senate Judiciary Committee. The federal judiciary should be an elite group, said Scalia, who has served on the high court for 25 years. "It's not as elite as it used to be," he said.

He was responding to a question about what he sees as the greatest threat to the independence of judges.

For what it's worth, I go half way with Justice Scalia on this. There are too many federal drug prosecutions, but, from my perspective, the quality of the federal district court bench is still excellent - especially the judges I appear in front of (and who may be (but probably aren't) reading this).

One danger of having too many cases is that it gets hard to look at each case with fresh eyes.

Sentence too many folks on drug crimes, and every person convicted of drug dealing starts to look the same. It's a rare, and good, judge who can treat the 500th drug defendant as an individual in the same way that she did with the first.

Once a judge does, say, 100 sentencing hearings, she can be forgiven, perhaps, for not focusing on the details of each one.

This kind of volume leads to the regrettable sloppiness in the Seventh Circuit's opinion in United States v. Hassebrock.

Mr. Hassebrock earned substantial income from an oil business in 2004. Among other income, he received a taxable settlement of $2.5 million. He neglected, however, to file income tax returns. He was indicted, and, at trial, convicted, of tax evasion and willfully failing to file a tax return.

Tax evasion and failure to file a tax return are odd offenses. While most federal crimes appear in Title 18 of the United States Code, tax offenses are codified in Title 26. Tax evasion is a violation of 26 U.S.C. § 7201 and willful failure to file a tax return is a violation of section 7203.

The difference in which title is the source of the crime changes things in small and subtle ways at sentencing.

In Mr. Hassebrock's case, it changed whether the sentencing court had the power to order Mr. Hassebrock to pay restitution.

To back up, a court can order, as a part of a sentence, a person to pay funds to make his victims whole as restitution. If a person defrauded money, he can be ordered to pay the amount defrauded. If he shot someone, he can be ordered to pay the costs of medical bills, lost wages, and therapy to recover from the injury.

The general restitution statutes, 18 U.S.C. §§ 3663 and 3663A, apply to violations of crimes that appear in Title 18 and drug crimes in Title 21. They do not apply to offenses in Title 26 - that is, they don't apply to tax evasion.

Judges imposing sentence really want to impose restitution. As a practical matter, it makes collecting the taxes that were evaded monumentally easier for the government.

Yet restitution in tax cases is only available in two ways. First, if the person charged with a tax offense pleads guilty, as a condition of a plea agreement he can agree (or be forced to agree) to pay restitution as a part of his sentence. This is authorized by 18 U.S.C. § 3663(a)(3).

Second, if the district court orders that the person be on supervised release, the court can make restitution a condition of that supervised release.

Importantly, a district court cannot make restitution a part of a sentence in federal court.

Given that this blog only addresses cases and issues where the defendant wins, you will not be shocked to learn that the district court in Mr. Hassebrock imposed a restitution order as a part of his sentence.

The government tried to let the sentencing court know it couldn't do it, but the judge, ignoring the government's statement that the court could only impose restitution as a condition of Mr. Hassebrock's post-prison supervised release, imposed restitution as a part of the sentence.

The court directed Mr. Hassebrock to start paying the restitution immediately - while he was serving his 36 month sentence. However, the court doesn't have the power to order him to pay restitution until his prison sentence is over and he is being supervised by the United States Probation Office.

Mr. Hassebrock, to his credit, has apparently starting paying his restitution from prison.

His case was remanded for a new restitution order that starts once he is out of prison.

Preserving an issue for appeal in the middle of trial can be tricky.

The lawyer who represents a person in the trial court normally has to preserve an issue for it to be heard by the court of appeals. If the lawyer doesn't object when something improper happens, the appellate court is not going to be as eager to do something about it.

Yet the trial court lawyer is worrying about so many things that preservation of an appellate issue isn't always the right thing to worry about. It's much better, for example, to have a strong shot at a not guilty verdict than to have an issue that you may be able to win on appeal. And, in trial, there are so many balls to watch, that it may be rational for a lawyer to take his eye off of one of them for a moment. Which can make for a harder appeal.

To make things worse, a trial lawyer doesn't have the same access to the law that a appellate lawyer, or court of appeals judge, has. It's one thing to know the law after hours of research. It's another to have to know it when an issue that you weren't anticipating comes up.

So one can empathize with the lawyer who represented Calvin Brown. His case was recently decided by the Seventh Circuit in United States v. Brown.

Mr. Brown had pled guilty. He and his lawyer were sitting at counsel table* after having made their arguments about what the sentence should be. The district judge was announcing his sentence. He told Mr. Brown how much time he was going to spend in prison.

Then the judge told Mr. Brown that there was a mandatory minimum fine of $300 in his case for each count. Because he pled guilty to four counts, the sentencing court imposed a fine of $1200.

The problem, though, is that there is no mandatory minimum fine that applied to Mr. Brown's case. The sentencing judge was just flat-out wrong.

Mr. Brown's lawyer didn't object. Because he didn't object, the Seventh Circuit said that it reviewed his appeal on a plain error standard.

As an aside, plain error is a harder standard to meet. If a person in an appeal is complaining about what happened in the trial court, they would like the court of appeals to review the decision de novo. De novo review means the court of appeals thinks about the issue on it's own, without reference to how the district court approached it.

Plain error, on the other hand, means that the person who is appealing has to convince the court of appeals that the district court was clearly wrong - it wasn't a close call. If there's a tie in the law, the tie goes against a person who is bringing the appeal.

As the Seventh Circuit explained it, a district court has plainly erred if,

Under plain error review, we must determine "(1) that error occurred; (2) that the error was plain; and (3) that the error affected the defendant's substantial rights."

Mr. Brown argued that the sentencing court was imposing its ruling - he didn't have an opportunity to object.**

The Seventh Circuit would hear none of it. The court of appeals reviewed under plain error.

Happily, though, the appellate court found that making up a mandatory minimum fine that doesn't exist is plain error.

As a result, Mr. Brown's case will be remanded for reconsideration of the fine that the court imposed in this case. Now all he has to worry about is the 292 month sentence he has to serve.

* Presumably. This detail isn't in the opinion, which is to say that I'm making it up.
** It isn't clear from the opinion whether the fine issue came up in the hearing or only in the judgment that issued later. I think it would be odd to have it only in the judgment, and, likely, that would present other problems (that the judgment that the court signs and the announcement of the sentence shouldn't vary too much), but, in any event, Mr. Brown did not object to either.

Tomas Leiskunas, a man who "at 26 years old . . . had a minor criminal history and at least two aliases," was charged with being a straw purchaser in a mortgage fraud scheme in the federal district court in Chicago.

The folks who were engaged in the scam, according to the Seventh Circuit's opinion in United States v. Leiskunas, would take out fake mortgages in Mr. Leiskunas's name* on houses that he was never going to live in. He would attend real estate closings and say that he was going to live in the houses.

That's against the law.

Mr. Leiskunas decided to plead guilty. He declined to accept a plea agreement from the government, deciding, instead, that he would like to plead open. (For prior posts on defendants who have done well on appeals by pleading open, check out this post, this post, or this post).

The biggest effect of an open guilty plea is that there are no agreements about the person's sentencing guidelines. In a fraud case, as in almost any white-collar case, loss amount is the largest question on the table. In Mr. Leiskunas's case, it was also responsible for his win in the Seventh Circuit.**

The starting point for most white-collar sentencing guidelines is section 2B1.1 of the federal sentencing guidelines. The biggest factor driving a white-collar case is normally loss amount.

The guidelines say that the loss amount is the amount of money that is reasonably foreseeable to be lost to the person charged with the crime.

In Mr. Leiskunas's case, the government had a novel and concrete theory of loss.

The total amount loaned in the closings that Mr. Leiskunas participated in was $4,473,161.55.

Because, as you may have noticed, the housing market is not doing well, each house involved in Mr. Leiskunas's case was foreclosed on (that they were a part of a mortgage fraud conspiracy may have been a contributing factor). The total value of money raised at these foreclosure sales was $1,792,000 less than the total amount loaned.

Thus, the government argued, the amount the banks lost must have been the amount that was reasonably foreseeable to Mr. Leiskunas.

The district court adopted the government's calculation of loss without much discussion.

The Seventh Circuit reversed because the district court did not offer an explanation for accepting the government's position.

The appeals court did not opine on the merits of the government's position. It did not note, for example, that there was no way Mr. Leiskunas could have known what the houses would fetch later at a foreclosure sale. The court of appeals did not explain that the amount used as a loss number was the amount of harm actually suffered, which is very different than the amount of harm that Mr. Leiskunas would have been able to predict when he participated in the mortgage fraud. The Seventh Circuit also did not point out that the government's test completely fails to account for the way the guidelines explicitly say that loss amount should be calculated.

Nope, the Seventh Circuit just sent it back for a better explanation.

* Or, if not his actual name, one he would be willing to answer to during a real estate closing.

** Sort of. The Seventh Circuit also reversed on the district court's determination that Mr. Leiskunas did not play a minor role in the mortgage fraud scheme. The district court expressed the belief that the law was that Mr. Leiskunas could not be a minor player if he was essential to the scheme or was involved, in a minor way, a number of times. This was not the law, according to the Seventh Circuit. For more, see USSC S 3B1.2.

As devoted readers will recall, the Ninth Circuit recently rejected a restitution claim by a woman who was depicted in child pornography when she was a child. The Second Circuit just agreed with the Ninth Circuit, in United States v. Aumais. Yet another Circuit jumps on the anti-restitution for child porn victims freight train.

The Second Circuit held that "proximate cause is a deeply rooted principle in both tort and criminal law that Congress did not abrogate" when it created the statute that allows restitution, 18 U.S.C. S 2259. Because the woman seeking restitution couldn't show that the defendant's conduct was a proximate cause of her harm, her restitution award was vacated.

The opinion in Aumais rejects a restitution claim made by the same woman that was at issue in the prior Ninth Circuit case, Kennedy, and for the same reasons.

All of this got me thinking. In both opinions, the woman, "Amy", describes feeling trauma whenever she gets a victim notification from the United States Department of Justice. Why they doesn't DOJ just stop sending notices?

In any event, the Second Circuit now agrees with many others that if the district court is going to charge some one for the financial costs of a crime, the person has to have caused the harm that the court is holding the person responsible for.

Related articles

• Second Circuit panel reverses child porn restitution award to "Amy" (sentencing.typepad.com)

It's odd - most lawyers spend their entire careers fighting about money. Criminal defense lawyers - even white collar criminal defense lawyers - tend to focus much more on prison time or guilt and innocence. We're a rare breed of lawyer; we're lawyers who don't fight about money (most of the time).

There are downsides to not normally focusing on money.

As the Wall Street Journal recently wrote, forfeitures are out of control. The government is taking money from people with minimal process and getting away with it. Apparently, the money that law enforcement collects goes back to law enforcement coffers. This seems not to reduce the abuses of forfeiture.

The Eleventh Circuit's recent opinion in United States v. Singletary shows another problem with failing to focus on the money.

Patrick and Robert Singletary pled guilty to participating in a scheme to commit mortgage fraud with a number of unindicted co-conspirators.

At sentencing, their guidelines ranges were 51 to 63 months and 33 to 43 months. The judge imposed sentences of a year and a day*, and 18 months.

He also imposed restitution of $1 million, and a forfeiture order of $1 million.

The issue on appeal? The restitution amount.

In federal court, restitution is available to pay back people who lost money because of a crime. In Singletary, the court had a hearing to determine how much money people lost.

But the district court said, on the record, that it didn't buy the government's evidence. It just didn't find the government's witnesses credible. So, when the government said that the amount that was lost, which would drive the sentencing guidelines and the restitution amount, was more than $3 million, the district court said no.

Instead, the court held, $1 million seemed about right. Not because the court identified transactions that added up to a round $1 million. Rather, it seems that the sentencing court selected $1 million because it was a nice round number that was less than what the government wanted.

The court used the wrong loss number for both the sentencing guidelines and the amount of restitution. Yet only the restitution part was appealed.

Even though the judge used the wrong loss amount when determining the sentencing guidelines, no one really cared. The Singletaries already received sentences under the bottom of the guidelines.

The only thing that mattered - that arbitrary order to pay $1 million.

* I can hear you wondering, "A year and a day? What an odd sentence length? Why would a judge tack on the extra day?" This is an odd circumstance where more time is actually less time. If the court had imposed a sentence of a year, the person would not have been eligible for good time credit. By adding an additional day, good time credit is possible, which, in the federal system, would be worth about 45 days of reduced sentence.

"Why not just impose a sentence of 10 and a half months?" you may ask.

I don't really have an answer for that.

Related articles

• Eleventh Circuit - Mortgage Fraud Judgment Vacated and Remanded for Re-Sentencing (lawprofessors.typepad.com)

Just because you win, doesn't mean you win something you want.

Gary Dudeck pled guilty to three charges: possessing child pornography, receiving child pornography, and receipt of images depicting minors engaged in sexual activity.*

The district court sentenced him to ten years on each of the three counts, and ran the sentence concurrently.

Mr. Dudeck appealed, and argued that he can't be guilty of all three of these charges.

While there's a lot that double jeopardy doesn't mean, double jeopardy prevents a person from being convicted of the same crime twice.

So, if you commit an assault and an aggravated assault, where an aggravated assault is basically just defined as an assault plus some kind of aggravating factor, at sentencing, the court should dismiss the assault, and only sentence you for the aggravated assault.

Mr. Dudeck argued that receiving child pornography requires possessing child pornography, so that his conviction of possession should be ignored. Otherwise, it would violate double jeopardy.

The Sixth Circuit agreed that receipt of child pornography includes possession of child pornography in his case, United States v. Dudeck. The court remanded because it wasn't clear whether the images that supported the possession count were the same ones that supported the receipt count.

And, if Mr. Dudeck prevails, what does he get? The sentencing court already made clear that the sentence for receipt and possession should be the same. And the court already ran them concurrent to one another.

Mr. Dudeck, if he wins on this argument, as the potential to save himself $100. Every criminal defendant has to pay $100 for every felony count that he or she is convicted of. It's the law.

If Mr. Dudeck's possession conviction is overturned, he saves himself a full one hundred dollars.

* You may wonder what the difference is between receiving child pornography and receiving images depicting minors engaging in sexual activity. Basically, receiving child pornography - pictures involving real children - is a separate crime that receiving images that contain "virtual" children. If the image is real child porn, its receipt is prohibited by 18 U.S.C. S 2252(a)(2). If the image is of a virtual child, receipt is prohibited by 18 U.S.C. S 2252A(a)(2), which relies on a broader definition of child pornography.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Zoraida Pena Canal was like any other live-in nanny, except she worked from 6 a.m. until 10 p.m., wasn't allowed to talk with anyone other than the family she worked for, her employer held her passport, and she wasn't paid for the two years she worked as a nanny.

Her employer, Mabelle Dann, was convicted at trial of document servitude in violation of 18 U.S.C. S 1592, forced labor charges in violation of 18 U.S.C. 1589, and immigration charges. She was sentenced to five years in prison.

As the Ninth Circuit's opinion in United States v Dann, by Judge Gertner of the District of Massachusetts, sitting by designation, starts:

The parties at trial and on appeal present two competing narratives. Dann contends that this case is a not unusual story of the relationship between two women, with all its ups and downs. As a divorced, single mother with three small children, Dann was desperate. She gave Pena Canal the opportunity to come to the United States, and she treated her as a family member. Dann took care of, housed, and fed Pena Canal, and wanted to pay her as soon as she had the chance. Dann hoped to give Pena Canal a room of her own but was unable to do so. The two women had their fights, as all family members do. After Pena Canal left Dann, she discovered that she could obtain a T-Visa and stay in the United States, as long as she testified against Dann. Pena Canal's testimony is tainted by her incentive to lie.

The government in turn portrays a woman who went to great lengths to violate immigration laws so that Pena Canal could work for her. She needed cheap -- or free -- labor, and this was her means of procuring it. Her behavior towards Pena Canal became worse and worse over time, culminating in Pena Canal's working without pay in slave-like conditions, fearful of what would happen if she were to leave.

Dann challenged both the fact of her conviction and the sentence. Both were upheld.

I won't spend much time on the facts, except to note one exchange in the trial testimony where Ms. Dann and Ms. Pena Canal were arguing over whether Ms. Pena Canal was a slave. She wasn't allowed to leave the house, talk to anyone else, and hadn't been paid. To my mind, if you're arguing with your unpaid employees over whether you're a slave holder, you probably are.

The case presents, though, a remarkable restitution issue.

Ms. Dann was ordered to pay significant restitution to Ms. Pena Canal for holding her in slavery and not paying her for two years.

Ms. Dann was owed back child-support from the father of her children. The district court held that this child support debt was properly disgorgeable to Ms. Pena Canal as restitution. The money had already been spent, and was payable to Ms. Dann, the court reasoned, so it is Ms. Dann's money, and is subject to the restitution order.

The Ninth Circuit disagreed. The appeals court held that because child support payments are always the property of the child, provided the child is not yet an adult, they can't be ordered disgorged from the parent in a restitution order.

That much seems reasonable -until you think about it. The child support was, in part, for services provided by Ms. Pena Canal. And Ms. Dann is going to spend five years in prison, where she most certainly won't be supporting the kids with the income that comes in from the back child support.

So, to recap, the State of California will collect the back child support through its child support enforcement mechanisms. The money will not go to Ms. Pena Canal, the woman who did the actual work of parenting. Instead, the child support will go to the woman who is unable to support the children, because she's in a federal prison for five years.

The court recognized this is more than a little odd, and that the district court's order including the child support arrearage in the restitution order does seem equitable. But the court determined that the law is clear,

under California law, a creditor (in this case a crime victim with a restitution order) is not entitled to accrued child support payments owed to a custodial parent of children who have not yet reached the age of majority.

This is a tricky problem. Someone is going to have to watch over and support those kids. Ms. Dann won't be in a position to do it while in prison. If she gets the child support arrearage, and uses it to support the kids while she's not able to, I suspect most people would be comfortable with that.

Though there's no guarantee that's how this will play out.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.

Joshua Kennedy was flying into Seattle from overseas. Customs searched his laptop and found child pornography on it. The appeal of his conviction was decided today by the Ninth Circuit today in United States v. Kennedy, presenting a really interesting take on the scope of federal restitution -- and the kind of harm that comes from the transportation of child pornography.

As an aside, let's stop there for a second. Did you know that the government can search you at the border (meaning, basically, anywhere Customs has a checkpoint)? Searches of computers at the border are way more common than I suspect most people suspect. Legal challenges are being mounted.

The searches of laptops at the border are invasive. And they don't require probable cause. Customs can search everything on your iPhone anytime you fly back from overseas. They don't need a reason. They can just take your phone and search it. Surely the amount of our personal lives that we keep on our computers and phones counsels in favor of rethinking this rule at some point. Is there a greater threat to national security, or whatever, if I email myself a file from Paris than if I put it on a thumb drive and carry it through Customs?

Anyway, back to the restitution issue.

Mr. Kennedy was convicted of transporting child pornography. The government asked the district court to impose a restitution order, because two of the women who were depicted in the images that were found on his computer. The government submitted evidence that having their earlier abuse viewed by strangers has been very damaging.

Psychologists presented evidence of the harm they'd suffered. One of the women said every time a victim notice came from a US Attorney's office she would have a panic attack (one would hope that she could simply take her name off of the notification list, but I know the federal victim notification laws are complicated).

One woman asked for $3 million. The other asked for $227,000.

The district court gave them $1,000 for each image they were in, basically throwing its hands up on how to figure out what the measure of damages for a situation like this should be.

The Ninth Circuit reversed. The Court noted that to succeed in a claim for restitution, the government has to show that the defendant's conduct was a cause of the harm that was suffered by the victim. So, here, the women seeking money would have to show that Kennedy's possession of their image caused them to be harmed.

The Ninth Circuit said, basically, no way. The women were harmed, to be sure, but Kennedy's possession of the images wasn't known to them -- if he hadn't possessed them, they would have been no better off. That he did possess them rendered them no worse off. So, because his possession didn't change the quantity or quality of harm suffered by the women, Kennedy didn't cause the harm.

It's a compelling theory of causation, I think, and it resolves what was developing into a thorny issue of public policy. Restitution in situations like this have been kind of a hot area in the press lately. This guy seems to have built a whole practice area on it. The New York Times has written about the controversy.

I can't wait to see how long it takes for the Supreme Court to reverse, or Congress to amend the statute.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.