In this set of short wins, the one that I’d like to call attention to is United States v. Cuti.
Restitution is not a sexy issue. It isn’t as fun to read about as, say, a Brady fight, or a glaring evidentiary problem at a trial. But it’s important.
Restitution judgments can be massive and, frankly, too many lawyers, judges, and prosecutors phone it in around restitution. United States v. Cuti clarifies that what counts as restitution is not just any money that any person may have spent as a result of the criminal conduct at the heart of the case. If you’ve got a restitution issue coming up, give it a read. Nice stuff.
To the victories!
1. United States v. Cuti.pdf, Second Circuit: Appellant was convicted of conspiracy to make false statements and securities fraud. His sentence included an award of restitution under the Victims and Witnesses Protection Act. The Second Circuit held that legal expenses incurred in connection with a civil arbitration connected to the offense are not deemed “necessary” under the VWPA because they were not undertaken or pursued in aid of the prosecution. In addition, the court held that non-victims are eligible for restitution only to the extent such payments were made on behalf of the victim, and remanded for reconsideration of the restitution order.
Defense Attorneys: Brian C. Brook and Matthew J. Peed
2. United States v. Price, Fourth Circuit: Appellant pled guilty to failing to register as a sex offender and the district court adopted Guidelines based on the fact that such an offense qualified as a ‘sex offense’. That interpretation was wrong; failing to register as a sex offender does not qualify as a sex offense. The court therefore remanded for resentencing under different sentencing guidelines.
Defense Attorneys: Kimberly Harvey Albro and John H. Hare
3. United States v. Adejumo, Eighth Circuit: After Appellant was sentenced, the government filed a motion to amend the judgment and impose restitution. Appellant’s trial counsel knew of the motion, but did not inform Appellant or respond to it. Appellant’s motion for reconsideration of that order should have been granted because the restitution order constituted a judicial deprivation of property and required due process. The specific facts of this case indicated that Appellant did not receive adequate notice.
4. United States v. Estrada, Eleventh Circuit: Appellant received a sentencing enhancement for being convicted of a crime of violence. Since his sentencing, the Eleventh Circuit issued an opinion that determined Appellant’s prior conviction could not be a crime of violence, so the case was remanded for resentencing.