Restitution Order Was Not Plainly Erroneous

United States v. Schwamborn, No. 12-5125-cr (2d Cir. Nov. 21, 2013) (Pooler, Raggi, and Wesley) (summary order), available here

Convicted of securities fraud, the defendant was sentenced principally to 121 months of imprisonment and about $182,000 in restitution. On appeal, he challenged the restitution order on three grounds: (1) one of the victim’s affidavits was unreliable and overstated the loss amount; (2) the defendant had not caused the victims’ losses; and (3) the need to provide restitution was outweighed by the burden placed on the sentencing process.

The court of appeals, applying plain error analysis, rejected all three arguments. First, the victim’s affidavit was sworn, notarized, and sufficiently reliable to support its probable accuracy. Second, the evidence supported the district court’s conclusion that the defendant was the proximate cause of the victims’ losses. Third, the factual circumstances of the case were not so complex as to unduly prolong the sentencing process and outweigh the need to provide restitution to victims. Accordingly, the panel affirmed the restitution order.