Archive | restitution

Friday, July 10th, 2009

Back to the Future

United States v. Pearson, No. 07-0142-cr (2d Cir. July 2, 2009) (Miner, Katzmann, Raggi, CJJ) (per curiam)

Title 18, U.S.C. § 2259 provides that, in sex abuse cases, restitution is mandatory for the full amount of any loss to the victim, including the costs of medical or psychiatric care. Here, in a case of first impression in the circuit, the court held that this section includes restitution for estimated future expenses.

In this case, then, the district court properly ordered such future restitution. The circuit sent the case back anyway, however, because the district court, which arrived at a figure of nearly $ 1 million – the victims were two young girls – did not adequately explain how it arrived at the figure it selected.

The court also held that the issue survived the appellate waiver in Pearson’s plea agreement. With respect to restitution, the agreement merely stipulated that Pearson …

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Friday, February 6th, 2009

Cashed and Burned

United States v. Varrone, No. 07-4533-cr (2d Cir. January 30, 2009) (Calabresi, Sotomayor, Parker, CJJ)

Joseph A. Castello ran a check cashing business. He cashed more than $200 million in checks that exceeded $10,000 – charging a four percent check-cashing fee – for which he was obligated to file currency transaction reports (CTR’s). He did not, however, and was convicted by a jury of violating 31 U.S.C. §§ 5313 and 5322(a). On appeal, he challenged a restitution order, and claimed that the forfeiture order violated the Excessive Fines Clause of the Eighth Amendment. The circuit vacated.

The Restitution Order

The restitution order involved a fraud victim, who was induced to send a $300,00 check to a bogus financial firm. This had nothing at all to do with Castello, except that the firm cashed the check at his establishment. When the victim contacted Castello, he falsely represented that he was an …

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Categories: Eighth Amendment, forfeiture, restitution, Uncategorized

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Sunday, October 19th, 2008

Materia Girls

United States v. Ojeikere, No. 07-1970-cr (2d Cir. October 7, 2008) (Newman, Winter, Calabresi, CJJ)

Defendant Ojeikere was convicted of participating in an “advance fee” scheme the tricked its victims into sending money to the defendant and his confederates to release “large sums of money supposedly held in Nigeria.”

On appeal, he challenged the restitution order, which was nearly $700,000. He claimed that his “victims,” although they suffered losses, had hands too dirty to claim restitution, since they all participated in what they believed was a fraudulent scheme to obtain money from Nigeria. The court agreed with Ojeikere in principle only – restitution is not appropriate where the victims are, in effect, co-conspirators.

But restitution “may not be denied simply because the victim had greedy or dishonest motives.” It should only be denied where the victims’ intentions were in pari materia with those of the defendant. Because Ojeikere did not …

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Sunday, August 24th, 2008


United States v. Amato, No. 06-5600-cr (2d Cir. August 21, 2008) (Cardamone, Miner, Pooler, CJJ)

The defendants were the principals of a consulting firm that was purchased by EDS, a much larger company. Their compensation included an incentive plan that promised large bonuses if they helped their clients, financial services firms, avoid losses caused by escheatments. The defendants never met their goals, but devised a successful scheme to deceive EDS into believing that they had.

After a jury trial, the court sentenced both defendants to prison, then conducted a restitution hearing and concluded that they owed $12.8 million in restitution to EDS. This figure included more than $3 million in attorney and accountant fees that EDS had incurred as a result of its participation in the prosecution.

On appeal of this part of the restitution order, the circuit affirmed. It noted that the statute at issue, 18 U.S.C. § 3663A(b)(4) …

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