Restitution PAs and Js at the NAC

RESTITUTION PLEA

AGREEMENTS & JUDGMENTS

Maria B. Grise, Esq.USAO, Norfolk Division, MPU

EDVA, January 15, 2009

What Is a Restitution Judgment

Restitution is normally a separate term of the sentence

A Restitution Judgment/Order details that term of the sentence

It is a part of the overall sentence and the overall Judgment in a Criminal Case

Restitution Plea Agreements

§3663(a)(3) MVRA – discretionary section

§3663A(a)(3) MVRA – mandatory section for additional victims

Limitations


§3663A(c)(2) MVRA – mandatory section for additional offenses

Limitation

Plea AgreementRestitution Language

OTHER VICTIMS:

“In consideration of the Government’s motion to dismiss Count II, the parties agree, pursuant to 18 U.S.C. §3663A(a)(3), that Mary Jane shall be considered as a victim of Count I, and is owed $1,000.00 as restitution for her losses.”

Plea Agreement Restitution Language

OTHER OFFENSES: “In consideration of the government’s

agreement not to charge the defendant with the offense of bank fraud for his actions on March 11, 2007 relating to Sun Trust Bank, an offense for which restitution could be ordered under 18 U.S.C. §3663A(c)(1)(A), the defendant agrees to the imposition of restitution as if he were convicted of defrauding Sun Trust Bank in the sum of $10,000.00.”

Specificity Requirement

When the United States seeks restitution pursuant to a plea agreement for a non-offense of conviction, or other victims, several courts require a high degree of specificity.

Types of Restitution Judgments One Defendant, One Victim

One Defendant, Multiple Victims

Multiple Defendants, One Victim

Multiple Defendants, Multiple Victims

“Paid in Full” Restitution Judgment


MVRA requires full restitution

AG guideline requires full restitution


Prosecutors should use a plea: to resolve factual issues of restitution to accept surrender of assets to limit court’s ability to make restitution

ineffective to waive the right to appeal to inform about court’s authority to order full

restitution


“The defendant understands that the Court must order restitution to each victim in the full amount of each victim’s losses as determined by the Court and without consideration of the economic circumstances of the defendant. The full amount of each victim’s losses may not be known until after completion of the presentence report and a sentencing hearing.”

Why Have a Restitution Judgment?

Forces the USPO & the AUSA to plan

Tells the Court our position

Better, clearer results

Helps the victims

RJ: Basic Restitution Questions How much does this Defendant owe?

What amounts are the victims due?

Who are the victims?

What is the Defendant supposed to do?

Miscellaneous matters?

RJ: The Defendant Owes “1. The Defendant is sentenced to pay, as

restitution, $XXXXX.”


“The United States and the defendant agree that the maximum penalty that can be imposed is __ years imprisonment, __ years supervised release, mandatory restitution to each victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant, a $250,000 fine, and a $100 special assessment.” [Emphasis added].

Joint and Several Liability If more than 1 defendant, U.S. should

generally seek joint and several liability: Victim’s best chance to recover full loss from

some combination of the defendants. Authorized by 18 U.S.C. § 3664(h). Imposing same liability upon multiple

defendants, without expressing joint and several liability, may lead to reversal because victim is only entitled to recover once.


Cooperative Defendants:

“The parties agree that the United States will ask the Court to apportion the defendants’ restitution liability to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.”

RJ: Joint and Several Liability

“1. The defendant is sentenced to pay, as restitution, $XXXXX, jointly and severally with any co-defendants who are ordered to pay restitution for the same loss.”

“2. The amount of loss paid to a victim, collectively, shall not exceed the victim’s total loss from the offense of conviction.”

RJ: Joint and Several Liability Attachment A

A Table, as Attachment A, helps show how joint and several liability works

Additionally, Attachment A helps:

Identify victims

Identify co-defendants

Specify amount due each victim

Specify amount due from each defendant

RJ: Joint and Several Liability Attachment A

Def. A Def. B Def. C Total Due to Victims:

Victim X $10,000 $10,000

$10,000

$10,000

Victim Y $20,000

$20,000

$20,000

Victim Z $30,000

$30,000

Total Due from Def.

$10,000 $30,000

$60,000

$60,000

RJ: Specificity vs. Privacy Victims have right to privacy

Victims must be identified

Public has general right to access Court records

A redacted Order may be necessary

RJ: Identifying Victims If no privacy interest, 1 defendant and no

more than a few victims, the Restitution Judgment can simply provide:

3. The following victims are due restitution in the amounts stated:

Victim AmountABC Corp123 Main St, Norfolk, VA 23510 $1000

DEF Crop $100345 Main St, Norfolk, VA 23510

RJ: Identifying Victims If multiple victims, multiple defendants,

or if at least one victim is an individual, then better practice to use Attachment A:

3. The following victims are due restitution in the amounts stated:

Victim AmountSee Attachment A.


Identifying Victims:

“The parties agree that the issue of the identity of the victims, and the amount of losses suffered by each victim, should be referred to a Magistrate Judge/Special Master/Receiver for proposed findings of fact and recommendations, subject to a de novo determination of the issue by the court.”


Schemes & Conspiracies:

“The parties agree that during the course of the defendant’s illegal conduct as alleged in Count I (Conspiracy), the 27 victims named in Attachment A to this Plea Agreement suffered the losses specified therein and that, as a result, the Court should Order the defendant to pay to those victims a total of $50,000.00 as restitution.”


“Without limiting the amount of restitution that the Court must impose, the United States indicates that it is aware of the following victims and losses:

Victim: Amount of Loss:Mary Smith $1,000.00 Ann Jones $2,000.00.”

--or--


“The United States and the defendant stipulate and agree that the following victims suffered the following losses as a result of the offenses to which the defendant pleads guilty:Victim: Amount of Loss:Mary Smith $1,000.00Ann Jones $2,000.00.”


“The parties agree that if the victim’s losses are not fully ascertainable at sentencing, the Court may continue the date for final determination of the victim’s losses until such time as the victim’s losses are fully ascertainable, and waives any right to have restitution imposed at sentencing or within 90 days of sentencing.”

RJ: Redacted Attachment A

Defendant A

Defendant B

Tom Smith(redacted)

$10,000 $10,000

Jane Johnson(redacted)

$10,000

Business123 Main St.Norfolk, VA 23510

$20,000

RJ: Filed Under Seal Pursuant to the E-Government Act of 2002

Attachment ADefendant A Defendant B

Tom Smith123 Main StreetNorfolk, VA 23510

$10,000 $10,000

Jane Johnson321 Main StreetNorfolk, VA 23510

$10,000

Business213 Main StreetNorfolk, VA 23510

$20,000

Who is a Restitution Victim?

A victim is a person. 18 U.S.C. §3663A(a)(2)

A person includes corporate entities

A person includes the federal government

May be a Receiver or Representative

May be a “provider of compensation”

If just “the United States,” may be construed as a fine

Amount of Restitution “[T]he Court shall order restitution to each

victim in the full amount of each victim’s losses as determined by the court and without consideration of the economic circumstances of the defendant.” 18 U.S.C. §3664(f)(1)(A).

This is a procedural statute.

To determine which losses are recoverable, you must look at the substantive statute that imposes restitution.

Amount of Restitution 18 U.S.C. 3663A is the substantive statute

that provides for restitution in most criminal cases, particularly Title 18 offenses.

Only four types of losses are recoverable under 18 U.S.C. § 3663A: property damage, (b)(1) If bodily injury, medical, psychological

treatment, income loss to victim, (b)(2) If death, funeral expenses, (b)(3), and Participation in investigation or litigation

expenses

Amount of Restitution

“Relevant conduct” for Guidelines purposes frequently is not the same amount that must be ordered for restitution

Restitution frequently is more narrow, as it does not include intended losses

Restitution may be broader, as it may include, e.g., medical treatment or participation expenses

RJ: Credits

Must generally credit other recoveries

Forfeiture recoveries not paid to actual victim do not need to be credited

RJ: Interest 4. Interest:

_____ is waived.

_____ accrues as provided in 18 U.S.C. § 3612(f).

RJ: Payment Schedules

Restitution should always be “due immediately” -- preserves the right of the U.S. and the victim to enforce restitution using all available administrative and civil means

Court should also impose a payment schedule

The key is to keep the concepts separate

RJ: Payment Schedules5. Restitution is due immediately, and

notwithstanding any other provision of this Restitution Judgment, the Government may enforce restitution at any time. The defendant shall make a bona fide effort to pay restitution in full as soon as practical.


“The defendant agrees that whatever monetary penalties are imposed by the Court will be due immediately and subject to immediate enforcement by the United States as provided for in Section 3613.”


“If the Court imposes a schedule of payments, the defendant understands that the schedule of payments is merely a minimum schedule of payments and not the only method, nor a limitation on the methods, available to the United States to enforce the judgment.”

RJ: Payment Schedules 7. The defendant shall pay to the Clerk

at least $_____ per month beginning ______________________________________________________________________________________.

RJ: Payment Schedules 6. If incarcerated, the defendant shall

participate in the Bureau of Prison’s Inmate Financial Responsibility Program at a rate of at least $25 per quarter, or if assigned as a UNICOR grade 1 through 4 employee, at least 50% of the prisoner’s monthly pay.


“If the defendant is incarcerated, the defendant agrees to participate in the Bureau of Prisons’ Inmate Financial Responsibility Program, regardless of whether the Court specifically directs participation or imposes a schedule of payments.”

RJ: Payment Directions 8. All payments shall be made to the

Clerk of Court, United States District Court, 600 Granby Street, Norfolk, VA 23510.


PREPAYMENT

“The defendant agrees, prior to sentencing, to pay the Clerk of Court the sum of $1,000,000.00 which shall be held by the Clerk pending further Order of the Court for distribution as restitution in this case.”


Bail Money

“The defendant represents and agrees that $10,000.00 cash deposited with the Clerk of Court in order to secure his release belongs to him and should be used as a payment toward his restitution obligation.”

§


Liquidation of IRAs, etc.

“The defendant agrees to liquidate all funds on deposit with XYZ and to pay such funds to the Clerk of Court as restitution. Payment shall be made to the Clerk of Court no later than ___ [preferably before sentencing].”

RJ: Notice by Defendant 9. The defendant shall notify, within 30

days, the Clerk of Court and the United States Attorney’s Office . . . of: (a) Any change of name, residence, or mailing address; and (b) Any material change in economic circumstances that affects the ability to pay restitution.


“The defendant agrees to provide, in a timely manner, all financial information requested to the United States Attorney’s Office.”

RJ: Penalties 10. No delinquent or default penalties

shall be imposed except upon Order of the Court.

RJ: Priority of Payments 11. Classification and Priority of

Payments to Victims.

a. The following non-federal victims shall be paid in full first:

b. The following federal victims shall be paid in full second:

c. The following providers of compensation or insurers shall be paid last:

RJ: Priority of Payments – Too Many Small Victims

11. The Clerk shall make payments to the victims in $100 increments, starting with the victim owed the least. Once each victim has received an initial payment, the Clerk shall re-start the process with the victim then owed the least, and shall continue in such manner until all victims are paid in full.

Advantages of Asset Forfeiture Pre-conviction Restraint

Forfeiture may be completed before conviction

More robust asset forfeiture tools and resources

Forfeiture generally has much easier liquidation process

Coordination with Forfeiture

Forfeiture and Restitution are two separate penalties

However, in most cases, a defendant cannot pay both and Restitution should generally take priority

Forfeiture yielding to Restitution is as a matter of Executive policy and cannot be unilaterally imposed by the Court

Three Options 1. Terminate forfeiture proceedings and

have seized assets distributed through the Clerk of Court in accordance with the Restitution Judgment

2. Petition for Remission

3. Petition for Restoration

Option 1. Termination If cash assets, ask the Court to direct that

the seized assets be paid to the Clerk as restitution.

If non-liquid assets, generally best to allow Final Order of Forfeiture so the Asset Forfeiture Unit may liquidate the asset. Then do Petition to Remit or Restore.

Terminating an asset forfeiture proceeding in favor of restitution cannot be done once Final Order of Forfeiture entered.


“The defendant agrees to the entry of a preliminary order of forfeiture which forfeits to the United States the $1,000,000.00 previously seized by the United States. The defendant waives any claim to that sum. The parties are aware of no other claimants to the $1,000,000.00. The parties agree that the sum of $1,000,000.00 should be transferred to the Clerk of Court as a payment toward the defendant’s restitution.”

Option 2. Petition for Remission

A Petition for Remission is done by the victim and requests compensation from funds already forfeited to the United States.

Decision to grant remission rests with AFMLS or similar agencies in other Departments.

28 C.F.R. § 9.8 sets forth procedures. Payment is made to victim directly, need

to separately ensure that Clerk credits payments.

Option 3. Petition for Restoration

Prepared by the U.S. Attorney (or designee)

Although not difficult to prepare, various requirements must be met, such as a RJ with pro rata distribution

Policy is available on the AFMLS intranet site. (Copy enclosed with materials)

Position of the United States

Some Judges do not want a proposed RJ

It is nevertheless a right and duty of the Government to inform the Court on its position on sentencing

Position of the United States on Sentencing is an alternative to proposed RJ

Position of the United States

Should specifically ask the Court to: Specify the victims and the amount due each Make payment due immediately Impose a minimum, non-exclusive payment

schedule

May ask the Court for other relief specific to the case

Sources for Restitution Judgment

Key Source is the Presentence Report Plea Agreements and Indictments Case Files Victim-witness coordinators Related Presentence Reports Victims Separate financial investigation The AUSA


“The United States and the defendant agree that the Court must impose restitution to each victim in the full amount of each victim’s losses as determined by the Court and without consideration of the economic circumstances of the defendant.”

Restitution is limited to victims of the offense of conviction unless PA provides otherwise.

In non-Title 18 cases, restitution is limited to a condition of probation or supervised release unless PA provides otherwise.

Restitution Plea Agreements & Judgments

Questions, Please?

Restitution PAs and Js at the NAC

Documents

Transcript of Restitution PAs and Js at the NAC