Articles Posted in Restitution and Fines

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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.

1028452_syringes_and_vial.jpgAt these clinics, the Doctors Sharma would give pain injections to patients. The health care fraud involved “paravertebral facet-point injections.”

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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.

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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.

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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He sold pirated copies of outdated Adobe software on Ebay. His customers could buy this outdated software, then, with an update code Mr.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.

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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.

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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.

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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.

Federal Courtroom.jpgYet 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.

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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.

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.

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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.

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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.

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