This page shows textual changes in the document between the two versions indicated in the dates above. Textual matter removed in the later version is indicated with red strikethrough and textual matter added in the later version is indicated with blue.
Federal courts may not order a defendant to pay restitution to the victims of his or her crimes unless authorized by statute to do so. Several statutes supply such authorization. For instance, federal courts are statutorily required to order victim restitution when sentencing a defendant either for an offense against property, including fraud or deceit, proscribed in Title 18 of the United States Code or for a crime of violence. The obligation exists even if the defendant is indigent, and restitution must take the form of in-kind, lump sum, or installment payments. Federal courts are permitted, but not required, to order victim restitution when sentencing a defendant for any offense proscribed in Title 18 for which restitution is not required. Federal courts are permitted to order victim restitution when sentencing a defendant for various controlled substance and aviation safety offenses. In addition, a federal court may order restitution pursuant to a plea bargain or as a condition of probation or supervised release.
As a general rule, restitution is available only to victims who have suffered a physical injury or financial loss as a direct and proximate consequence of the crime of conviction, and only to the extent of their losses. Several provisions governing restitution following conviction for particular crimes permit awards for types of losses that might not otherwise be permitted under the general restitution provisions. For example, the Identity Theft Enforcement and Restitution Act of 2008 (18 U.S.C. 3663(b)(6)) authorizes restitution orders to compensate victims for the cost of remediating the intended or actual harm caused by certain identity theft violations. The courts are divided over the extent to which a defendant convicted of possession of child pornography may be ordered to make restitution to the child depicted in the material.
When restitution is to be ordered, a probation officer gathers information from victims, the government, the defendant, and other sources for a report to the court. The parties receive copies of the report and may contest its recommendations. The court has considerable discretion as to the manner and scheduling of restitution payments, but the authority may not be delegated to probation or prison officials. Furthermore, the order must provide for full restitution for all victims unless the sheer number of victims or the complications of a given case preclude such an order.
Under the abatement doctrine, when a defendant dies before his or her appeal has become final, the law treats the indictment and conviction as though they had never happened. The conviction is vacated and the indictment dismissed. The courts do not agree on whether the doctrine also reaches unfulfilled obligations under a restitution order.
This report is available in an abridged form—without footnotes, citations to most authorities, or appendixes—as CRS Report RS22708, Restitution in Federal Criminal Cases: A Sketch. Related reports include CRS Report RL33679, Crime Victims' Rights Act: A Summary and Legal Analysis of 18 U.S.C. 3771, by [author name scrubbed], available in abridged form as CRS Report RS22518, Crime Victims' Rights Act: A Sketch of 18 U.S.C. 3771, by [author name scrubbed].
Federal courts may not order a defendant to pay restitution to the victims of his or her crimes unless authorized to do so.1 Two general statutes authorize restitution. One, 18 U.S.C. 3663, permits it for certain crimes.2 The second, 18 U.S.C. 3663A, requires it for other crimes.3 In addition, several individual restitution statutes authorize awards for particular offenses. In addition, federal courts may order restitution as a condition of probation or supervised release.4 Section 3664 supplies the procedure under which the restitution orders are imposed.
In the case of mandatory restitution, federal courts must order victim restitution when sentencing a defendant for a felony that constitutes either
Restitution in federal criminal cases is a matter of statute. A handful of statutes identify the victims who are eligible to receive restitution; what criminal convictions may trigger an obligation to pay restitution; the losses for which victims may be compensated; and the procedure by which restitution is ordered and enforced.
As a general rule, a victim is a person who is physically injured, or who suffers a property loss, as the proximate result of a qualifying offense. A victim may also be someone named as a beneficiary in a plea bargain or in a condition of probation or supervised release.
Federal crimes of violence, fraud, or property loss will usually require a sentencing court to order restitution. A court also may order restitution following a conviction for any other crime in the federal criminal code, in accordance with a plea bargain, or as a condition of probation or supervised release.
Restitution orders ordinarily must cover the full extent of a victim's losses that are the proximate result of the defendant's qualifying crime of conviction, no more and no less, even though the defendant may never be able to make full restitution.
Restitution in federal criminal cases is part of the sentencing process. The Probation Service prepares a presentencing report that includes a preliminary assessment of what restitution, if any, is appropriate. The parties are free to challenge and supplement the report. The government must establish the existence and extent of any right to victim restitution by a preponderance of the evidence. Both the government and the defendant may appeal the court's restitution determinations. A victim may appeal such determinations using mandamus.
The Department of Justice, acting on behalf of a victim, may enforce a restitution order in the manner it uses to collect fines or by "all other available and reasonable means." Victims may secure a lien in their own names against the defendant's property in order to secure restitution, and they may bring other civil actions in their own names against the defendant.
The courts do not agree on whether the abatement doctrine cuts off unfulfilled obligations under a restitution order. The abatement doctrine provides that when a defendant dies while his or her appeal is still pending the law treats the defendant's indictment and conviction as though they had never happened. The conviction is vacated and the indictment dismissed.
Criminal restitution is the "full or partial compensation paid by a criminal defendant to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation."1 Federal prosecutors recover roughly $1 billion a year for the victims of federal crimes.2 Yet less than a tenth of the restitution awarded in federal criminal cases will ever be collected because of the defendants' inability to pay.3 In addition, federal courts rarely order restitution in immigration and drug cases, the most commonly prosecuted federal crimes, because of the nature of the offenses.4
Federal courts may not order a defendant to pay restitution to the victims of his or her crimes unless empowered to do so by statute.5 Two general statutes vest the courts with authority to order restitution. One, 18 U.S.C. § 3663, permits it for certain crimes.6 The second, 18 U.S.C. § 3663A, requires it for other crimes.7 In addition, several individual restitution statutes authorize awards for particular offenses, i.e.:
animal enterprise terrorism;8The obligation exists even if the defendant is indigent, and restitution must take the form of in-kind, lump sum, or installment payments.17 Moreover, a court may not avoid the obligation by issuing a restitution order and then granting the defendant remission of restitution.18 When not required, federal courts are permitted to order restitution for various controlled substance and aviation safety offenses, as well as for any offense proscribed in Title 18 of the United States Code for which restitution is not already mandatory.19 Ordinarily, restitution is available only to victims who have suffered a physical injury or financial loss as a direct and proximate consequence of the crime of conviction, and only to the extent of their losses.20
Federal courts also may order restitution pursuant to a plea bargain or as a condition of probation or supervised release, even where it is not otherwise authorized.19 Section 3664 supplies the procedure under which the restitution order is ordinarily imposed.
Restitution has a diverse pedigree. Grounded in fairness2120 and often thought of as an equitable remedy,2221 its antecedents can as easily be found in law as in equity.2322 As its name implies, restitution restores the victim to the status quo ante, that is, making the crime-depleted victim whole again.2423 Restitution has been a feature of the federal system of criminal justice for over a century. In its earliest form, some federal judges claimed it as a component of their inherent authority to grant probation and suspended sentences.2524 Then in 1916, the Supreme Court held that the lower federal courts had no inherent power to suspend sentences.2625 Congress responded by granting the courts explicit authority to suspend sentences and to place defendants on probation.2726 In doing so, the courts were permitted to require probationers "to pay in one or several sums a fine imposed at the time of being placed on probation and ... to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and ... to provide for the support of any person or persons for whose support" they were "legally responsible."2827 This authority continued essentially unchanged for more than 50 years.2928 Even though the federal courts enjoyed no other power to order restitution in a criminal case,3029 the authority was "infrequently used and indifferently enforced."31
Congress found this situation unsatisfactory.3231 Thus, in the Victim and Witness Protection Act of 1982 (VWPA), it vested federal courts with the general discretion to order restitution in any criminal case arising out of a crime proscribed in Title 18 of the United States Code or in air piracy cases.3332 In the Violent Crime Control and Law Enforcement Act of 1994, Congress established mandatory restitution as a consequence of conviction for the federal crimes of sexual abuse, sexual exploitation of children, and domestic violence.3433 Then, in the Mandatory Victim Restitution Act (MVRA) portion of the Antiterrorism and Effective Death Penalty Act of 1996, Congress made mandatory restitution a consequence of conviction for most of the serious federal crimes (i.e., crimes of violence and, when proscribed in Title 18 of the United States Code, crimes against property, including fraud).35
Restitution's varied lineage—equitable and legal, civil and criminal—has spurred a number of constitutional challenges over the years. Some initially saw restitution as an alternative to civil litigation on behalf of the victims of crime. If this were the case, defendants claimed that they should enjoy a Seventh Amendment right to have a jury determine the facts upon which a restitution order was based. Their challenges came to naught. The Supreme Court held that the Seventh Amendment extends only to civil actions similar to those tried before a jury when the Amendment was ratified in 1791.36 The lower courts rejected the Seventh Amendment challenges either because they concluded that restitution was a criminal rather than a civil sanction or because, at common law, restitution was not a matter presented to a jury; in some cases, the challenges were rejected for both reasons.37
However, if restitution is a criminal sanction, must it observe the constitutional restrictions on sanctions, such as the proscriptions on ex post facto laws, excessive fines, and cruel and unusual punishments? If the Seventh Amendment right to a jury trial in civil cases has no bearing, what of the Sixth Amendment right to a jury trial in criminal cases?
On the question of retroactive application of new laws and the ex post facto clause, there is no consensus among the lower federal appellate courts, although a majority take the position that the clause applies and, consequently, exposure to increased restitution liability may not be applied retroactively.38
The scant case law available on the issue indicates that the Eighth Amendment's excessive fines clause, as well as its cruel and unusual punishment clause, mark the outer bounds of the courts' restitution authority.39 These limitations, however, impose no real impediments. They condemn fines and punishments that are grossly disproportionate;40 restitution, by definition under federal law, must be precisely proportionate to the harm caused by the offense.41
As for the Sixth Amendment right to jury trial and the Fifth Amendment right to conviction only on proof beyond a reasonable doubt, the Supreme Court held in a series of cases beginning with Apprendi v. New Jersey42 and culminating in United States v. Booker,43 that the Sixth Amendment right to a jury trial and the Fifth Amendment right to due process require that "any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."44
This might seem to pose a problem for federal restitution procedures under which restitution is determined by the court (not a jury) on the basis of a preponderance of the evidence (not beyond a reasonable doubt). Nevertheless, the lower federal appellate courts have rejected arguments that the Apprendi line of cases clouds the validity of a restitution order under such circumstances—either because they do not consider restitution a criminal sanction and thus see no Fifth or Sixth Amendment concerns or because they feel the restitution statutes fail to set the "statutory maximum" necessary to trigger Apprendi concerns.45 None of the other due process or equal protection challenges appear to have survived appellate scrutiny thus far.46
The various federal restitution statutes address three questions: Who qualifies as a victim? What crimes trigger restitution authority? What type of injuries or losses does restitution cover? As originally cast, §3663 (VWPA) authorized restitution for "any victim" of any crime proscribed in title 18 of the United States Code, but did not define the term "victim."47 The Supreme Court read the statute narrowly and concluded that restitution might only extend to harm attributable to the crime of conviction.48 Congress endorsed this view almost immediately with a more explicit statement of §3663's coverage.49 It replicated and enlarged that statement when it enacted §3663A six years later.50
Sections 3663 and 3663A authorize restitution orders for the benefit of the victims of the crime of conviction,51 and expressly define the term "victim" (i.e., "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered").52 A victim is also someone harmed by a scheme, conspiracy, or pattern of activity that is an element of the crime of conviction.53 And, a victim may be someone whom the government and the defendant agree in a plea bargain is entitled to restitution.54
Harm is directly caused by the defendant's offense of conviction when the harm would not have occurred but for that misconduct.55 Directly caused harm is proximately caused when there is no attenuation between the crime and the harm; when the harm and but-for misconduct are closely, not remotely, related in time and fact.56 The presence of an intervening cause of the harm may suggest a want of either direct causation, or proximate causation, or both. The presence of an intervening cause will defeat an assertion of direct and proximate harm unless intervening cause is related to or a foreseeable consequence of the offense of conviction.57 As the Supreme Court explained in the context of one of the specialized restitution statutes,
As a general matter, to say one event proximately caused another is a way of making two separate but related assertions. First, it means the former event caused the latter.... Every event has many causes, however, and only some of them are proximate.... So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result. The idea of proximate cause.... is a flexible concept, that generally refers to the basic requirement that there must be some direct relation between the injury asserted and injurious conduct alleged.... Proximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct. A requirement of proximate cause thus serves, inter alia, to preclude liability in situations where the causal link between conduct and result is so attenuated that the consequence is more aptly described as mere fortuity.58
The definition of a victim for purposes of restitution under §§3663 and 3663A expands when the crime of conviction has as an element a conspiracy or a scheme or pattern of misconduct.59 In the case of conspiracy, a defendant may be compelled to make restitution both for the harm caused by his or her own misconduct and for the harm caused by the foreseeable misconduct of his or her coconspirators.60
As for the scheme and pattern exception, most federal crimes do not list schemes or patterns among their elements, although the mail fraud, wire fraud, and racketeering statutes do.61 In such cases, restitution may include the losses incurred from a different episode of the scheme than the one mentioned in the indictment.62 Yet the scheme must be the same; victims entitled to restitution do not include those harmed by an otherwise identical scheme but different in time or place than the crime of conviction.63
The courts are divided over which statutes qualify as "scheme, conspiracy or pattern" laws. Some say the scheme or pattern must be an element of the crime of conviction; it is not enough that the defendant's crime involves contrivance or repeated related criminality.64 Others say it is enough; the statute proscribing the crime of conviction need not use the words "scheme," or "conspiracy," or "pattern."65
Sections 3663 and 3663A describe, with somewhat overlapping grants of authority, the circumstances under which representatives and others may stand in the shoes of a victim.66 A court may also order restitution pursuant to a plea bargain for "victims" who would not otherwise qualify.67
Although a victim must be a "person" and governmental entities are ordinarily not considered persons,68 state, local, and federal governmental entities are entitled to restitution orders when they otherwise qualify as victims of a crime under §§3663 and 3663A.69
On the other hand, although the courts enjoy authority to order restitution paid to family members on behalf of the victims of crime,70 it is unclear whether the victimization of one member of a family constitutes victimization of its other members sufficient to warrant a restitution order for the benefit of a victim's family members in their own name.71
At one time, the lower federal appellate courts are divided over whether under §2259 a restitution order following conviction for possession of child pornography required the government to show that the subject of child pornography has sustained losses proximately caused by the possession offense.72 Thereafter, the Supreme Court concluded that "[r]estitution is therefore proper under §2259 only to the extent that the defendant's offense proximately caused a victim's losses."73
Although §§3663 and 3663A employ the same definition of victim, they do not authorize restitution for the same crimes. The list of crimes for which §3663 permits restitution supplements the list for which §3663A demands restitution.
The mandatory restitution of §3663A applies upon conviction for
34
Victims
The various federal restitution statutes address three questions: Who qualifies as a victim? What crimes trigger restitution authority? What type of injuries or losses does restitution cover? As general rule, a victim is: Under several specific sex offense and domestic violence restitution statutes, a victim is: Sections 3663 and 3663A, and the statutes that incorporate their provisions understand "person" to include individuals, corporations and other legal entities.42 Moreover, although a victim must be a "person" and governmental entities are ordinarily not considered persons,43 state, local, federal, and foreign governmental entities have been awarded restitution orders when they otherwise qualify as victims of a crime under §§3663 and 3663A.44 The human trafficking, sex, and domestic violence mandatory restitution sections define victims as "individuals" rather than "persons," suggesting that only human victims and their representatives may claim restitution under those provisions.45 The two sets of statutes also use different language to describe the nature of the harm that qualified victims must experience. Sections 3663 and 3663A speak of victims harmed directly and proximately.46 The sex-related statutes simply refer to victims as those harmed,47 but until recently, they defined recoverable losses to include "any other losses suffered by the victim as a proximate result of the offense."48 Under both sets of restitution statutes, victim qualification and loss qualification are two sides of the same coin. "Victims" are only those harmed by the defendant's crime; "losses" are only those harms caused by the defendant's crime. The courts frequently address the question as an issue of qualifying losses. Most often under Sections 3663 and 3663A, a victim is a person or individual who suffers harm as the direct and proximate result of the defendant's crime of conviction or who receives restitution under the defendant's plea bargain.49 The definition of a victim for purposes of restitution under Sections 3663 and 3663A expands when the crime of conviction has as an element a conspiracy or a scheme or pattern of misconduct.50 The expansion either requires or makes possible restitution for victims and offenses not mentioned specifically in the indictment, not covered by the crime of conviction, and consequently not otherwise reimbursable.51 In the case of conspiracy, the court may compel a defendant to make restitution both to the victims of the harm caused by his or her own misconduct and to the victims of the harm caused by the foreseeable misconduct of co-conspirators.52 As for the scheme and pattern exception, most federal crimes do not list schemes or patterns among their elements, although the mail fraud, wire fraud, health care fraud, and racketeering statutes do.53 In such cases, restitution may include the losses incurred from a different episode of the scheme than the one mentioned in the indictment.54 Yet the scheme must be the same; victims entitled to restitution do not include those harmed by an otherwise identical scheme but different in time or place than the crime of conviction.55 The restitution definitions of "victim" usually mention family members as permissible representatives of a child or deceased victim. Nevertheless, although the courts enjoy authority to award family members restitution on behalf of the victims of crime,56 it is unclear whether the victimization of one member of a family constitutes victimization of its other members sufficient to warrant a restitution order for the benefit of a victim's family members in their own name.57 Finally, under Sections 3663 and 3663A, a "victim" is anyone the defendant and the government agree is a victim.58 Although Sections 3663 and 3663A employ the same definition of victim, they do not authorize restitution for the same crimes. The list of crimes for which Section 3663 permits restitution supplements the list for which Section 3663A demands restitution. The mandatory restitution of §3663A applies upon conviction for a felony or misdemeanor that is:
Section 16 describes a crime of violence as either "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
As a matter of application, the courts have found that threats,75 extortion,76 assault,77 harboring an illegal alien,78 burglary,79In Sessions v. Dimaya, the Supreme Court held that Section 16(b), as incorporated into the Immigration and Nationality Act, is unconstitutionally vague.60 The lower federal appellate courts have held that for purposes of Section 3663A the term "crimes of violence," as defined in Section 16(a), includes Hobbs Act robbery,61 threats,62 assault,63 and arson,64 but not a false statement offense,65 interfering with a flight attendant,66 or second degree murder.67 and arson80 are crimes of violence for purposes of §3663A and that false statement offenses are not.81 Elsewhere, the Supreme Court has explained that "crime of violence as defined by §16" does not includeencompass crimes committed negligently or accidently, such as driving under the influence.82 Other courts have said that the term "crime of violence" does not encompass possession of a pipe bomb,83 reckless vehicular assault,84 or simple misdemeanor assault,85 but does include such crimes as unauthorized use of a vehicle.86
68 The controlled substance offense that carries with it a restitution requirement under §Section 3663A (21 U.S.C. § 856) consists of maintaining a place where controlled substances are manufactured, stored, or used.87
The property damage/fraud predicate in §Section 3663A must involve a violation proscribed under title 18 of the United States Code rather than an offense found in another title.8870 Yet, the general conspiracy provision in title 18 can provide the necessary basis for a mandatory restitution order when the defendant is convicted of conspiracy to commit property damage or fraud in violation of a federal law found outside of title 18.89
The product tampering offense consists of tampering with a product or its labeling that affects interstate or foreign commerce or spreading false rumors that such a product is contaminated.90 Section 670 outlaws the theft of, or unlawful trafficking in, pre-retail medical products.91
Three qualifications temper the mandatory restitution requirements facing defendants convicted of the predicate offenses listed in §3663A(c)(1)(A). First, there must be an identifiable victim who has suffered a physical injury or a pecuniary loss.92 Second, in the case of the property damage/fraud predicates,93 restitution need not be ordered when the number of victims makes an order impractical.94 Third, again in the case of property damage/fraud predicates, restitution need not be ordered when the complexity that restitution would introduce into the sentencing process would represent an undue burden.95
A few other federal statutes authorize restitution. All but the animal enterprise statute, require it. Most apply the procedures that govern §§3663 and 3663A to a narrower range of crimes but a wider range of losses than §§3663 and 3663A and their attendant enforcement procedures might otherwise permit. Numbered among these provisions are
Section 3663 authorizes restitution when the defendant has been convicted of a crime proscribed under title 18 of the United States Code.96 It comes into play when the mandatory restitution statutes do not control. It also authorizes restitution when the defendant is convicted of any of several trafficking offenses under the Controlled Substances Act, or of any of a few air safety prohibitions.97
Finally, as noted earlier, a court may order restitution with respect to any crime consistent with a plea agreement98 or as a condition of either probation99 or supervised release,100 even with respect to crimes for which restitution is not authorized under §§3663 or 3663A.101
Restitution is a creature of statute. A court may order reimbursement only for those losses authorized by statute. Sections 3663 and 3663A recognize three categories of reimbursable losses: property losses, losses relating to bodily injuries, and losses relating to participation in the investigation or prosecution of the victimizing offense.
Sections 3663 and 3663A have essentially identical restitution provisions: both call for the return of the property, if that provides full victim restitution.102 If not, restitution takes the form of compensatory payments.103 As a general rule, victims are entitled only to be made whole; unlike the sentencing guidelines which calculate sentence enhancements based on both actual and intended losses,104 the restitution statutes permit awards only for actual losses.105 It is often not the fact of a reimbursable loss, but its measure, that challenges the courts. Nevertheless, the types of reimbursable property losses contemplated by §§3663(b)(1) and 3663A(b)(1) include things like the salary of a faithless employee,106 or the insurance replacement costs of a stolen car,107 or the losses visited upon a loan guarantor by a mortgage fraud scheme.108 Circumstances dictate whether attorneys' fees qualify as reimbursable property losses. The strongest arguments for recovery seem to attend those cases in which the scurrilous litigation is an integral part of the crime of conviction.109 On the other hand, the courts seem less receptive when restitution is sought as a property loss under either §3663(b)(1) or §3663A(b)(1) in order to compensate a victim for the costs of civil litigation filed against the offender.110
Section 3663, unlike its counterpart, permits the court to order those convicted of crime-assisting identity theft or aggravated identity theft to pay for the costs incurred by their victims to remedy the actual or intended harm associated with the offense.111
Section 3663(c) also authorizes community restitution in the form of awards apportioned between state victim assistance agencies and state agencies dedicated to the reduction of substance abuse.112 The court may order restitution in certain drug trafficking cases where there are no identifiable victims, capped by the amount of the fine that the court may impose for commission of the offense.113 Moreover, at least one court has held that the section authorizes restitution only in those cases where the court actually imposes a fine as well; if the court fails to impose a fine, it may not order community restitution.114 Section 3663 expressly provides for restitution for the remedial effects of the victims of identity theft committed in relation to other offenses115 and for state agencies in certain drug trafficking cases if there are no other identifiable victims.116 Section 3663A has no comparable provision.
The individual restitution sections fall within two categories. One group focuses on restitution for the victims of crimes involving property damage or loss; the other on restitution for the victims of crimes involving personal injury. Among the first group, only the copyright infringement statute adopts by cross reference the mandatory restitution provisions of §3663A.117 Each of the others follows the same general pattern as §3663A but adds at least one unique feature of its own.
The child support restitution section, 18 U.S.C. 228(d), adopts the procedures of §3663A upon conviction for interstate evasion of child support orders.118 The amount of restitution that must be awarded is determined by reference to a state court support order or by other governing state law119 and, as such, may include the interest on overdue support payments120 and support owed after children have reached their majority.121
The peonage restitution section, 18 U.S.C. 1593, uses the common definition of "victim"122 and affords victims of human trafficking offenses123 a wide range of compensation that, unlike §§3663 and 3663A, includes the economic benefits derived from the victim's services and a catch-all clause ensuring compensation for predicate crime-related injuries and losses.124
The telemarketing fraud restitution statute, 18 U.S.C. 2327, originally enacted two years before the passage of the mandatory restitution provisions of §3663A, once had highly individualistic features.125 It has since been amended so that its provisions more closely track those of the general restitution provisions for losses caused by predicate crimes.126
The methamphetamine statute, 21 U.S.C. 853(q), covers the cleanup cost of closing down illicit amphetamine and methamphetamine production sites.127 At one time, the section applied only to those convicted of manufacturing offenses and consequently reached convictions for attempted manufacture but not for possession with intent to distribute.128 The USA PATRIOT Improvement and Reauthorization Act amended the section so that it now authorizes restitution upon conviction for offenses involving possession, possession with intent to distribute, or manufacture of amphetamine and methamphetamine.129
The animal enterprise interference section, 18 U.S.C. 43(c), permits a sentencing court to order a defendant convicted of violating its proscriptions to pay restitution for specific kinds of damage (i.e., the cost of repeating disrupted experiments, the loss of farm income, and the costs of economic disruption).130
Sections 3663 and 3663A have parallel provisions governing the restitution for personal injuries that permit or, in the case of §3663A require, compensation for medical expenses,131 lost income,132 rehabilitation,133 and funeral expenses in the event the victim is killed.134
The medical expenses covered by a restitution order may include those paid on the victim's behalf by a third party,135 and may include the costs of psychiatric and psychological treatment when the victim has suffered a physical injury.136 Restitution for lost income extends to both past and future lost income.137
Prior to passage of the general mandatory restitution authority in §3663A, Congress authorized restitution for three related small sets of offenses. Those authorizations, found in 18 U.S.C. 2248, 2259 and 2264, require the courts to order restitution following conviction for an offense proscribed in chapters 109A (sexual abuse), 110 (sexual exploitation of children), and 110A (domestic violence and stalking), respectively.138 Other than their designation of predicate offenses, the sections are identical. They each
Unlike §§3663 and 3663A, the three sections on their face do not require bodily injury of the victim as a precondition for the award of the cost of psychiatric treatments. They also have a catch-all clause that has no counterpart in either §§3663 or 3663A.144 On the other hand, unlike §§3663 and 3663A, they do not authorize payments to third parties to reimburse them for crime-related treatment of a victim.145
Sections 3663 and 3663A cover a victim's lost income, as well as necessary child care expenses, transportation costs, and other expenses associated with his or her participation in the investigation and prosecution of the crime, regardless of whether the resulting injury is to person or to property.146 A number of courts seem to share the view of that "investigation costs—including attorneys' fees—incurred by private parties as a direct and foreseeable result of the defendant's wrongful conduct may be recoverable" under §§3663(b)(4) or 3663A(b)(4).147 At least one appellate court, however, has concluded that those sections do not permit "restitution for the costs of an organization's internal investigation, at least when (as here) the internal investigation was neither required nor requested by the criminal investigators or prosecutors."148
The sections mention child care, attendance at judicial proceedings, and other matters that bespeak a human victim, but the courts have made it clear that corporations and other legal entities are likewise entitled to restitution under the provisions.149 Governmental entities may be entitled to restitution awards when they are the victims of a qualifying offense, but not for the costs of investigating and prosecuting the offense.150
Awards for investigative and prosecutorial participation have included relocation expenses for threatened victims;151 compensation for wages lost while the victim assisted in the investigation;152 and attorneys' fees related to the recovery of the victim of international parental kidnapping.153
Except to the limited extent otherwise provided in the individual authorization statutes, §3664 supplies the procedure that governs the issuance of restitution orders.154 Upon conviction of a defendant, the court directs the probation service to investigate and prepare a report identifying each victim of the offense and the extent of their injuries, damages, or losses.155 Prosecutors are to provide the probation officer with pertinent information.156 The officer is also to ask victims to detail the extent and specifics of their predicate crime-related losses.157 The defendant is obliged to give the officer a complete description of his or her financial situation.158
The probation officer's report is presented to the court, the defendant, and the prosecutor. The court resolves contested restitution issues by a preponderance of the evidence159 following a hearing, at which the prosecution bears the burden of establishing the existence and extent of the victim's losses,160 and the defendant bears the burden on questions regarding his or her finances and the extent to which the defendant has compensated the victim for the losses.161 The court may conduct a hearing or task the probation officer to secure additional information and resolve disputes.162
Section 3664 is precise when it describes how the court must frame the restitution order. The order must envision full compensation for the losses of each victim without regard to the financial circumstances of the defendant.163 In its calculation of the manner and schedule of payment for each victim, however, the court is to consider the defendant's assets, anticipated future income, and other financial obligations.164 Compensation may be made in a lump sum, in-kind payments, installments, or any combination of such methods of payment.165 In-kind payments may take the form of a return of lost property, replacement in-kind or otherwise, or personal services.166 When the defendant's financial condition precludes any alternative, the order may call for nominal periodic payments.167 Several courts have emphasized the importance of the court's close attention to the restitution payment schedule by prohibiting sentencing courts from initially ordering that restitution be paid immediately when it is readily apparent that the defendant is unable to do so, thereby effectively leaving the task of establishing a payment schedule to the probation officer or the Bureau of Prisons.168
When it sets the restitution owed by the defendant, the court may not take into account the fact that a victim may have been compensated by insurance or any other alternative form of compensation of his or her injury, loss, or damage.169 The amount of a restitution order may later be reduced to account for compensatory damages for the same loss recovered in a civil action.170
When the government and the probation officer have been unable to determine the full extent of victim losses within 10 days of sentencing, they are obligated to inform the court.171 The court is then to set a date, no later than 90 days after sentencing, for the final determination of victim losses.172 Thereafter, victims have a limited option to present claims for restitution relating to undiscovered losses.173
The Supreme Court has resolved a circuit split over how these provisions should be applied, particularly in cases where the timelines have not been observed.174 It held in Dolan that a sentencing court may determine the extent of a victim's losses and order restitution after the expiration of the statutory 90-day deadline, as long as the defendant was aware beforehand that the court intended to order restitution.175
Victims may assign their right to receive restitution payments to Crime Victims Fund,176 but there is no consensus over whether the court may order restitution to be paid to the Crime Victims Fund on its own initiative if the victim refuses to accept it.177
Should the court determine that more than one defendant contributed to the victim's loss, it may apportion restitution accordingly or it may make the defendants jointly and severally liable.178 When defendants are made jointly and severally liable, each is liable for the entire amount, but the victim is entitled to no more than what is required to be made whole, regardless of what portion each of the defendants ultimately contributes.179
There had been a difference of opinion over whether joint and severable liability may be imposed other than with respect to co-defendants.180 The Supreme Court has recently provided some clarification as to how courts should deal with restitution when those who are not co-defendants are responsible for a substantial portion of the victim's losses.181 The defendant in the case viewed child pornography of which the victim was the subject. To hold the defendant liable for all of the victim's losses attributable to production, distribution, and viewing of the material might contravene the proscriptions of the Eighth Amendment's excessive fines clause, the Court suggested.182 Rather, it held that the defendant's restitution order should be calculated to reflect his relative contribution to the harm caused.183
Section 3664(i) declares that when it comes to restitution, the United States is to be served last.184 The provision is cited most often to confirm that under the appropriate circumstances, the government and its departments and agencies may be considered victims for restitution purposes.185 When the government is not a victim, the defendant is not entitled to have the restitution award offset by the value of any forfeited property.186 There may be some question whether the same thing can be said when the government is both the victim of the offense and the recipient of the forfeited property.187
Section 3664(j) permits a court to order restitution to third parties who, as insurers or otherwise, have assumed some or all of the victim's losses, although in such cases, the victim must be fully compensated first.188 It also permits a court to reduce an earlier restitution order by any amounts that the victim later receives in the course of related federal or state civil litigation.189
The victim, the defendant, or the government may petition to have a restitution order's payment schedule amended to reflect the defendant's changed economic circumstances.190 The changed economic circumstances envisioned in §3664(k) do not include anticipated future changes191 or a later, better-informed understanding of the defendant's financial condition at the time of sentence.192 Nor does the section provide defendants with a mechanism with which to later challenge the legality of their restitution orders.193
There are several means to enforce a restitution order. Section 3664(m) declares that restitution orders may be enforced in the manner used to collect fines or "by all other available and reasonable means."194 When restitution is a condition of probation or supervised release, failure to make restitution may provide the grounds for revocation.195 Moreover, a restitution order operates as a lien in the name of the United States on the defendant's property that remains in effect for 20 years.196 The government may also use garnishment and the other collection mechanisms of the Federal Debt Collection Procedures Act (FDCPA) to enforce a restitution order.197 A victim may use a restitution order to secure a lien in his own name against the defendant's property to ensure the payment of restitution.198 In addition, the victims' rights provisions of 18 U.S.C. 3771 entitle a victim to "full and timely restitution as provided in law," a right, enforceable in the face of legally insufficient restitution order through a liberalized form of mandamus in some circuits.199
In most instances, a victim may also sue the defendant based on the conduct that led to the conviction and the issuance of the restitution order. During the course of such civil litigation, the defendant may be precluded from denying the facts that formed the basis of the conviction.200
Section 3664(o) provides that the court's restitution order constitutes a final order notwithstanding the fact it may later be corrected, modified, or appealed under various court rules and statutory provisions.201 This does not mean that the district court may later reduce a restitution order in the absence of specific authority.202 Nor does it convey appellate rights upon third parties who claim a right to restitution for expenses necessarily incurred on behalf of a victim.203
In a criminal law context, the lower federal courts have generally taken the view that the death of a defendant at any time prior to the determination of his or her final direct appeal abates all underlying proceedings; appeals are dismissed as moot, convictions are overturned, indictments are dismissed, and abated convictions cannot be used in related civil litigation against the estate—all as if the defendant was never criminally charged.204 It might seem from this that a restitution order would abate as well, but there is no consensus among the lower federal courts on the issue.205
The court need not order restitution following conviction for an otherwise qualified property damage or fraud offense when the number of identifiable victims or complexity of the issues makes the effort impractical.72 The complexity exception under which the court may decline to order mandatory restitution seems fairly narrow for a number of reasons. First, all else being equal, the section seems to favor restitution: reimbursing the victims of crime outweighs conforming to a sentencing time table.73 Second, balancing requires only a reasonable assessment of the amount of the defendant's restitution obligations, not an assessment with "exact precision."74 Third, and perhaps most compelling, after the Supreme Court's decision in Dolan v. United States,75 the restitution time table is no longer as consequential. In Dolan, the Court held that the 90-day deadline for issuance of a restitution order applies to the determination that some restitution is due, nor the amount due.76
Beyond the general description of crimes covered, Section 3663A lists two specific offenses for which restitution is mandatory. The product tampering offense consists of tampering with a product or its labeling that affects interstate or foreign commerce or spreading false rumors that such a product is contaminated.77 The medical products offense consists of the theft of, or unlawful trafficking in, pre-retail medical products.78
Other Restitution StatutesA few other federal statutes require restitution orders. Most apply the procedures that govern Sections 3663 and 3663A to a narrower range of crimes but a wider range of losses than Sections 3663 and 3663A and their attendant enforcement procedures might otherwise permit. Numbered among these provisions are
Section 3663 permits restitution when the defendant has been convicted of a crime proscribed under title 18 of the United States Code for which restitution is not mandatory.87 It also authorizes, but does not require, restitution when the defendant is convicted of any of several drug trafficking offenses under the Controlled Substances Act or of any of a few air safety offenses.88 Elsewhere, the court may order restitution following conviction pursuant to a plea bargain89 or as a condition of either probation90 or supervised release.91
Losses But-For and Proximate CauseAs a general rule, restitution requires that the defendant's offense be both the actual (or but-for) cause of the victim's loss and the proximate cause of that loss.92 "Proximate cause asks 'whether the harm alleged has a sufficiently close connection to the conduct at issue.' In other words, was the harm foreseeable"?93 Proximate cause "preclude[s] liability in situations where the causal link between the conduct and result is so attenuated that the consequence is more aptly described as mere fortuity."94
The child pornography restitution statute, Section 2259, presents the courts with one of the few instances in which restitution was required in spite of the absence of but-for cause. In Paroline v. United States, a man videoed his 9-year old niece in sexually abusive poses.95 He was convicted, imprisoned, ordered to pay $6,000 in restitution.96 Years later, the victim discovered the video had gone viral on the internet further traumatizing and humiliating her.97 Paroline pleaded guilty to possession of a downloaded copy of the video and the victim sought restitution in the amount of a little less than $3.4 million from him of the accumulated harm of years of wide-spread distribution.98 There was no question that Paroline's offenses had harmed the victim. Nevertheless, his offense was not the but-for cause of the total harm the victim suffered and unraveling his contribution from the thousands of other unidentified past and future possessors of the pornographic material would be "incredibly difficult."99 And so the Court declared:
In this special context, where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace [particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses.100
Subsequent lower federal appellate courts have emphasized that the government must prove that the defendant's conduct caused some of the victim's harm,101 but have granted district courts some latitude in assessing the defendant's portion of the victim's total losses.102
Property Loss or Damage Sections 3663 and 3663ASections 3663 and 3663A have essentially identical restitution provisions: both call for the return of the property, if that provides full victim restitution.103 If not, restitution takes the form of compensatory payments, in whole or in part.104 As a general rule, victims are entitled only to be made whole; unlike the sentencing guidelines which calculate sentence enhancements based on both actual and intended losses,105 the restitution statutes permit awards only for actual losses.106 It is often not the fact of a reimbursable loss, but its measure, that challenges the courts. Nevertheless, the types of reimbursable property losses contemplated by Sections 3663(b)(1) and 3663A(b)(1) include things like the salary of a faithless employee,107 or the insurance replacement costs of a stolen car,108 or the losses visited upon a loan guarantor by a mortgage fraud scheme.109
Both Sections 3663 and 3663A, nevertheless, permit restitution for losses other than those caused by the crime of conviction when the offense "involves as an element a scheme, conspiracy, or pattern of criminal activity."110
The Supreme Court resolved uncertainty when it held in United States v. Lagos on May 29, 2018, that restitution under Section 3663A for a victim's attorneys' fees and other expenses incurred during an investigation and proceeding relating to the offense of conviction applies only to government investigations and proceedings and not to private investigations or civil proceedings.111 The Court left unresolved whether private investigations conducted or private judicial proceedings initiated at the government's request might be covered.112
Section 3663(b), unlike its counterpart, permits the court to order those convicted of crime-assisting identity theft or aggravated identity theft to pay for the costs incurred by their victims to remedy the actual or intended harm associated with the offense.113
Again unlike Section 3663A, Section 3663(c) authorizes community restitution in the form of awards apportioned between state victim assistance agencies and state agencies dedicated to the reduction of substance abuse.114 The authority is limited to certain drug trafficking cases where there are no identifiable victims; may not exceed the amount of the fine that might be imposes; and may not take priority over any fines imposed, forfeitures ordered, or penalties assessed.115
Individual Restitution SectionsSeveral individual restitution sections follow the same general pattern as Section 3663A but add at least one unique feature of their own.116 For example, the child support restitution section, 18 U.S.C. § 228(d), adopts the procedures of Section 3663A in cases of interstate evasion of child support orders.117 Yet the amount of restitution that must be awarded is determined by reference to a state court support order or by other governing state law118 and, as such, may include the interest on overdue support payments119 and support owed after children have reached their majority.120
The peonage restitution section, 18 U.S.C. §1593, uses the common definition of "victim"121 and affords victims of human trafficking offenses122 a wide range of compensation that, unlike §§3663 and 3663A, includes the economic benefits derived from the victim's services and a catch-all clause ensuring compensation for predicate crime-related injuries and losses.123
The telemarketing fraud restitution statute, 18 U.S.C. § 2327, originally enacted two years before the passage of the mandatory restitution provisions of Section 3663A, once had highly individualistic features.124 Congress has since been amended it so that its provisions more closely track those of the general restitution provisions for losses caused by predicate crimes.125
The methamphetamine statute, 21 U.S.C. § 853(q), covers the cleanup cost of closing down illicit amphetamine and methamphetamine production sites.126 At one time, the section applied only to those convicted of manufacturing offenses and consequently reached convictions for attempted manufacture but not for possession with intent to distribute.127 The USA PATRIOT Improvement and Reauthorization Act amended the section so that it now authorizes restitution upon conviction for offenses involving possession, possession with intent to distribute, or manufacture of amphetamine and methamphetamine.128
The animal enterprise interference section, 18 U.S.C. § 43(c), permits a sentencing court to order a defendant convicted of violating its proscriptions to pay restitution for specific kinds of damage (i.e., the cost of repeating disrupted experiments, the loss of farm income, and the costs of economic disruption).129
Personal Injuries Sections 3663 and 3663ASections 3663 and 3663A have parallel provisions governing the restitution for personal injuries that permit or, in the case of Section 3663A require, compensation for medical expenses,130 lost income,131 rehabilitation,132 and, in the event the victim is killed, funeral and related expenses.133
The medical expenses covered by a restitution order may include those paid on the victim's behalf by a third party,134 and may include the costs of psychiatric and psychological treatment when the victim has suffered a physical injury.135 Restitution for lost income extends to both past and future lost income.136
Other Restitution StatutesPrior to passage of the general mandatory restitution authority in Section 3663A, Congress authorized restitution for three related sets of offenses. Those authorizations, found in 18 U.S.C. §§ 2248, 2259 and 2264, require the courts to order restitution following conviction for an offense proscribed in chapters 109A (sexual abuse), 110 (sexual exploitation of children), and 110A (domestic violence and stalking), respectively.137 Other than their designation of predicate offenses, the sections are identical. They each:
Unlike Sections 3663 and 3663A, the three sections on their face do not require bodily injury of the victim as a precondition for the award of the cost of psychiatric treatments. They also have a catch-all clause that has no counterpart in either Section 3663 or 3663A.143 On the other hand, unlike §§3663 and 3663A, they do not authorize payments to third parties to reimburse them for treatment of a victim's crime-related injuries.144
ProcedureExcept to the limited extent otherwise provided in the individual authorization statutes, Section 3664 supplies the procedure that governs the issuance of restitution orders.145 Upon conviction of a defendant, the court directs the probation service to investigate and prepare a report identifying each victim of the offense and the extent of their injuries, damages, or losses.146 Prosecutors are to provide the probation officer with pertinent information.147 The officer is also to ask victims to detail the extent and specifics of their predicate crime-related losses.148 The defendant is obliged to give the officer a complete description of his or her financial situation.149
The probation officer's report is presented to the court, the defendant, and the prosecutor. The court resolves contested restitution issues by a preponderance of the evidence150 following a hearing, at which the prosecution bears the burden of establishing the existence and extent of the victim's losses,151 and the defendant bears the burden on questions regarding his or her finances and the extent to which the defendant has already compensated the victim for the losses.152 The court may conduct a hearing or task the probation officer to secure additional information and resolve disputes.153
Section 3664 is precise when it describes how the court must frame the restitution order. The order must envision full compensation for the losses of each victim without regard to the financial circumstances of the defendant.154 In its calculation of the manner and schedule of payment for each victim, however, the court is to consider the defendant's assets, anticipated future income, and other financial obligations.155 Compensation may be made in a lump sum, in-kind payments, installments, or any combination of such methods of payment.156 In-kind payments may take the form of a return of lost property, replacement in-kind or otherwise, or personal services.157 When the defendant's financial condition precludes any alternative, the order may call for nominal periodic payments.158 Several courts have emphasized the importance of the court's close attention to the restitution payment schedule by prohibiting sentencing courts from initially ordering that restitution be paid immediately when it is readily apparent that the defendant is unable to do so, thereby effectively leaving the task of establishing a payment schedule to the probation officer or the Bureau of Prisons.159
When it sets the restitution owed by the defendant, the court may not take into account the fact that a victim may have been compensated by insurance or any other alternative form of compensation of his or her injury, loss, or damage.160 The amount of a restitution order may later be reduced to account for compensatory damages for the same loss recovered in a civil action.161
When the government and the probation officer have been unable to determine the full extent of victim losses within 10 days of sentencing, they are obligated to inform the court.162 The court is then to set a date, no later than 90 days after sentencing, for the final determination of victim losses.163 Thereafter, victims have a limited option to present claims for restitution relating to undiscovered losses.164 The Supreme Court held in Dolan v. United States that a sentencing court may determine the extent of a victim's losses and order restitution after the expiration of the statutory 90-day deadline, as long as the defendant was aware beforehand that the court intended to order restitution.165
Victims may assign their right to receive restitution payments to Crime Victims Fund,166 but there is no consensus over whether the court may order restitution to be paid to the Crime Victims Fund on its own initiative if the victim refuses to accept it.167
Should the court determine that more than one defendant contributed to the victim's loss, it may apportion restitution accordingly or it may make the defendants jointly and severally liable.168 When defendants are made jointly and severally liable, each is liable for the entire amount, but the victim is entitled to no more than what is required to be made whole, regardless of what portion each of the defendants ultimately contributes.169
There was once a difference of opinion over whether joint and severable liability might be imposed other than with respect to co-defendants.170 The Supreme Court has recently provided some clarification as to how courts should deal with restitution when those who are not co-defendants are responsible for a substantial portion of the victim's losses.171 The defendant in the case viewed child pornography of which the victim was the subject. To hold the defendant liable for all of the victim's losses attributable to production, distribution, and viewing of the material might contravene the proscriptions of the Eighth Amendment's excessive fines clause, the Court suggested.172 Rather, it held that the defendant's restitution order should be calculated to reflect his relative contribution to the harm caused.173
Section 3664(i) declares that when it comes to restitution, the United States is to be served last.174 The provision is cited most often to confirm that under the appropriate circumstances, the government and its departments and agencies may be considered victims for restitution purposes.175 When the government is not a victim, the defendant is not entitled to have the restitution award offset by the value of any forfeited property.176 Although there may be some doubt, it seems the same thing can be said when the government is both the victim of the offense and the recipient of the forfeited property.177
Section 3664(j) permits a court to order restitution to paid third parties who, as insurers or otherwise, have assumed some or all of the victim's losses, although in such cases, the victim must be fully compensated first.178 It also permits a court to reduce an earlier restitution order by any amounts that the victim later receives in the course of related federal or state civil litigation.179
The victim, the defendant, or the government may petition to have a restitution order's payment schedule amended to reflect the defendant's changed economic circumstances.180 The changed economic circumstances envisioned in Section 3664(k) do not include anticipated future changes181 or a later, better-informed understanding of the defendant's financial condition at the time of sentence.182
There are several means to enforce a restitution order. Section 3664(m) provides that the Department of Justice may enforce restitution orders in the manner used to collect fines or "by all other available and reasonable means."183 Thus, the government may use garnishment and the other collection mechanisms of the Federal Debt Collection Procedures Act (FDCPA) to enforce a restitution order.184 A restitution order also operates as a lien in the name of the United States on the defendant's property that remains in effect for 20 years.185 In addition, a victim may use a restitution order to secure a lien in his own name against the defendant's property to ensure the payment of restitution.186 Moreover, the victims' rights provisions of 18 U.S.C. 3771 entitle a victim to "full and timely restitution as provided in law," a right, enforceable in the face of a legally insufficient restitution order through a liberalized form of mandamus.187 When restitution is a condition of probation or supervised release, failure to make restitution may provide the grounds for revocation.188
In most instances, a victim may also sue the defendant based on the conduct that led to the conviction and the issuance of the restitution order. During the course of such civil litigation, the defendant may be precluded from denying the facts that formed the basis of the conviction.189
Section 3664(o) provides that the court's restitution order constitutes a final order for purposes of appeal by the government or the defendant, notwithstanding the fact the order may later be corrected, modified, or appealed under various court rules and statutory provisions.190 This does not mean that the district court may later reduce a restitution order in the absence of specific authority.191 Nor does it convey appellate rights upon third parties who claim a right to restitution for expenses necessarily incurred on behalf of a victim.192
AbatementIn a criminal law context, the lower federal courts have generally taken the view that the death of a defendant at any time prior to the determination of his or her final direct appeal abates all underlying proceedings; appeals are dismissed as moot, convictions are overturned, indictments are dismissed, and abated convictions cannot be used in related civil litigation against the estate—all as if the defendant was never criminally charged.193 It might seem from this that a restitution order would abate as well, but there is some authority to the contrary.194
Constitutional ConsiderationsRestitution's varied lineage—equitable and legal, civil and criminal—has spurred a number of constitutional challenges over the years. Some initially saw restitution as an alternative to civil litigation on behalf of the victims of crime. If this were the case, defendants claimed that they should enjoy a Seventh Amendment right to have a jury determine the facts upon which a restitution order rests. Their challenges came to naught. The Supreme Court held that the Seventh Amendment extends only to civil actions similar to those tried before a jury when the Amendment was ratified in 1791.195 The lower courts have rejected the Seventh Amendment challenges either because they have concluded that restitution was a criminal rather than a civil sanction or because, at common law, restitution was not a matter presented to a jury; in some cases, the challenges have been rejected for both reasons.196
However, if restitution is a criminal sanction, must a court observe the constitutional restrictions that attend a criminal sanction—ex post facto, excessive fines, and the right to trial by a jury in a criminal case? On the question of retroactive application of new laws and the ex post facto clause, there is no consensus among the lower federal appellate courts, although a majority take the position that the clause applies and, consequently, exposure to increased restitution liability may not be applied retroactively.197
"The circuits that have considered challenges to restitution orders under the [Eighth Amendment's] Excessive Fines Clause have held that where the restitution order reflects the amount of the victim's loss no constitutional violation has occurred."198 Moreover, "[t]his is not surprising, as restitution is inherently proportional …"199 The Supreme Court in Paroline v. United States, however, suggested that the question of Excessive Fines Clause protection may be unresolved.200
As for the Sixth Amendment right to jury trial and the Fifth Amendment right to conviction only on proof beyond a reasonable doubt, the Supreme Court held in a series of cases beginning with Apprendi v. New Jersey201 and culminating in United States v. Booker,202 that the Sixth Amendment right to a jury trial and the Fifth Amendment right to due process require that "any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt."203
This might seem to pose a problem for federal restitution procedures under which restitution is determined by the court (not a jury) on the basis of a preponderance of the evidence (not beyond a reasonable doubt). Nevertheless, the lower federal appellate courts have rejected arguments that the Apprendi line of cases clouds the validity of a restitution order under such circumstances—either because they do not consider restitution a criminal sanction and thus see no Fifth or Sixth Amendment concerns or because they feel the restitution statutes fail to set the "statutory maximum" necessary to trigger Apprendi concerns.204
None of the other due process or equal protection challenges appear to have survived appellate scrutiny thus far.205
(a)(1)(A) The court, when sentencing a defendant convicted of an offense under this title, Section 401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a), 849, 856, 861, 863) (but in no case shall a participant in an offense under such sections be considered a victim of such offense under this section), or Section 5124, 46312, 46502, or 46504 of Title 49, other than an offense described in Section 3663A(c), may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim's estate. The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.
(B)(i) The court, in determining whether to order restitution under this section, shall consider—
(I) the amount of the loss sustained by each victim as a result of the offense; and
(II) the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents, and such other factors as the court deems appropriate.
(ii) To the extent that the court determines that the complication and prolongation of the sentencing process resulting from the fashioning of an order of restitution under this section outweighs the need to provide restitution to any victims, the court may decline to make such an order.
(2) For the purposes of this section, the term "victim" means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person appointed as suitable by the court, may assume the victim's rights under this section, but in no event shall the defendant be named as such representative or guardian.
(3) The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.
(b) The order may require that such defendant—
(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense—
(A) return the property to the owner of the property or someone designated by the owner; or
(B) if return of the property under subparagraph (A) is impossible, impractical, or inadequate, pay an amount equal to the greater of—
(i) the value of the property on the date of the damage, loss, or destruction, or
(ii) the value of the property on the date of sentencing,
less the value (as of the date the property is returned) of any part of the property that is returned;
(2) in the case of an offense resulting in bodily injury to a victim including an offense under chapter 109A or chapter 110—
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense;
(3) in the case of an offense resulting in bodily injury also results in the death of a victim, pay an amount equal to the cost of necessary funeral and related services;
(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense;
(5) in any case, if the victim (or if the victim is deceased, the victim's estate) consents, make restitution in services in lieu of money, or make restitution to a person or organization designated by the victim or the estate; and
(6) in the case of an offense under Sections 1028(a)(7) or 1028A(a) of this title, pay an amount equal to the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense.
(c)(1) Notwithstanding any other provision of law (but subject to the provisions of subsections (a)(1)(B)(i)(II) and (ii), when sentencing a defendant convicted of an offense described in Section 401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act (21 U.S.C. 841, 848(a), 849, 856, 861, 863), in which there is no identifiable victim, the court may order that the defendant make restitution in accordance with this subsection.
(2)(A) An order of restitution under this subsection shall be based on the amount of public harm caused by the offense, as determined by the court in accordance with guidelines promulgated by the United States Sentencing Commission.
(B) In no case shall the amount of restitution ordered under this subsection exceed the amount of the fine which may be ordered for the offense charged in the case.
(3) Restitution under this subsection shall be distributed as follows:
(A) 65 percent of the total amount of restitution shall be paid to the State entity designated to administer crime victim assistance in the State in which the crime occurred.
(B) 35 percent of the total amount of restitution shall be paid to the State entity designated to receive Federal substance abuse block grant funds.
(4) The court shall not make an award under this subsection if it appears likely that such award would interfere with a forfeiture under chapter 46 or chapter 96 of this title or under the Controlled Substances Act (21 U.S.C. 801 et seq.).
(5) Notwithstanding Section 3612(c) or any other provision of law, a penalty assessment under Section 3013 or a fine under subchapter C of chapter 227 shall take precedence over an order of restitution under this subsection.
(6) Requests for community restitution under this subsection may be considered in all plea agreements negotiated by the United States.
(7)(A) The United States Sentencing Commission shall promulgate guidelines to assist courts in determining the amount of restitution that may be ordered under this subsection.
(B) No restitution shall be ordered under this subsection until such time as the Sentencing Commission promulgates guidelines pursuant to this paragraph.
(d) An order of restitution made pursuant to this section shall be issued and enforced in accordance with Section 3664.
(a)(1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim's estate.
(2) For the purposes of this section, the term "victim" means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person appointed as suitable by the court, may assume the victim's rights under this section, but in no event shall the defendant be named as such representative or guardian.
(3) The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.
(b) The order of restitution shall require that such defendant—
(1) in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense—
(A) return the property to the owner of the property or someone designated by the owner; or
(B) if return of the property under subparagraph (A) is impossible, impracticable, or inadequate, pay an amount equal to—
(i) the greater of—
(I) the value of the property on the date of the damage, loss, or destruction; or
(II) the value of the property on the date of sentencing, less
(ii) the value (as of the date the property is returned) of any part of the property that is returned;
(2) in the case of an offense resulting in bodily injury to a victim—
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense;
(3) in the case of an offense resulting in bodily injury that results in the death of the victim, pay an amount equal to the cost of necessary funeral and related services; and
(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.
(c)(1) This section shall apply in all sentencing proceedings for convictions of, or plea agreements relating to charges for, any offense—
(A) that is—
(i) a crime of violence, as defined in section 16;
(ii) an offense against property under this title, or under section 416(a) of the Controlled Substances Act (21 U.S.C. 856(a)), including any offense committed by fraud or deceit;
(iii) an offense described in section 1365 (relating to tampering with consumer products); or
(iv) an offense under section 670 (relating to theft of medical products); and
(B) in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.
(2) In the case of a plea agreement that does not result in a conviction for an offense described in paragraph (1), this section shall apply only if the plea specifically states that an offense listed under such paragraph gave rise to the plea agreement.
(3) This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if the court finds, from facts on the record, that—
(A) the number of identifiable victims is so large as to make restitution impracticable; or
(B) determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.
(d) An order of restitution under this section shall be issued and enforced in accordance with Section 3664.
(a) For orders of restitution under this title, the court shall order the probation officer to obtain and include in its presentence report, or in a separate report, as the court may direct, information sufficient for the court to exercise its discretion in fashioning a restitution order. The report shall include, to the extent practicable, a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant. If the number or identity of victims cannot be reasonably ascertained, or other circumstances exist that make this requirement clearly impracticable, the probation officer shall so inform the court.
(b) The court shall disclose to both the defendant and the attorney for the Government all portions of the presentence or other report pertaining to the matters described in subsection (a) of this section.
(c) The provisions of this chapter, chapter 227, and Rule 32(c) of the Federal Rules of Criminal Procedure shall be the only rules applicable to proceedings under this section.
(d)(1) Upon the request of the probation officer, but not later than 60 days prior to the date initially set for sentencing, the attorney for the Government, after consulting, to the extent practicable, with all identified victims, shall promptly provide the probation officer with a listing of the amounts subject to restitution.
(2) The probation officer shall, prior to submitting the presentence report under subsection (a), to the extent practicable —
(A) provide notice to all identified victims of—
(i) the offense or offenses of which the defendant was convicted;
(ii) the amounts subject to restitution submitted to the probation officer;
(iii) the opportunity of the victim to submit information to the probation officer concerning the amount of the victim's losses;
(iv) the scheduled date, time, and place of the sentencing hearing;
(v) the availability of a lien in favor of the victim pursuant to subsection (m)(1)(B); and
(vi) the opportunity of the victim to file with the probation officer a separate affidavit relating to the amount of the victim's losses subject to restitution; and
(B) provide the victim with an affidavit form to submit pursuant to subparagraph (A)(vi).
(3) Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant's dependents, and such other information that the court requires relating to such other factors as the court deems appropriate.
(4) After reviewing the report of the probation officer, the court may require additional documentation or hear testimony. The privacy of any records filed, or testimony heard, pursuant to this section shall be maintained to the greatest extent possible, and such records may be filed or testimony heard in camera.
(5) If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.
(6) The court may refer any issue arising in connection with a proposed order of restitution to a magistrate judge or special master for proposed findings of fact and recommendations as to disposition, subject to a de novo determination of the issue by the court.
(e) Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant's dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires.
(f)(1)(A) In each order of restitution, the 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.
(B) In no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution.
(2) Upon determination of the amount of restitution owed to each victim, the court shall, pursuant to Section 3572, specify in the restitution order the manner in which, and the schedule according to which, the restitution is to be paid, in consideration of—
(A) the financial resources and other assets of the defendant, including whether any of these assets are jointly controlled;
(B) projected earnings and other income of the defendant; and
(C) any financial obligations of the defendant; including obligations to dependents.
(3)(A) A restitution order may direct the defendant to make a single, lump-sum payment, partial payments at specified intervals, in-kind payments, or a combination of payments at specified intervals and in-kind payments.
(B) A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments.
(4) An in-kind payment described in paragraph (3) may be in the form of—
(A) return of property;
(B) replacement of property; or
(C) if the victim agrees, services rendered to the victim or a person or organization other than the victim.
(g)(1) No victim shall be required to participate in any phase of a restitution order.
(2) A victim may at any time assign the victim's interest in restitution payments to the Crime Victims Fund in the Treasury without in any way impairing the obligation of the defendant to make such payments.
(h) If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant.
(i) If the court finds that more than 1 victim has sustained a loss requiring restitution by a defendant, the court may provide for a different payment schedule for each victim based on the type and amount of each victim's loss and accounting for the economic circumstances of each victim. In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution.
(j)(1) If a victim has received compensation from insurance or any other source with respect to a loss, the court shall order that restitution be paid to the person who provided or is obligated to provide the compensation, but the restitution order shall provide that all restitution of victims required by the order be paid to the victims before any restitution is paid to such a provider of compensation.
(2) Any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in—
(A) any Federal civil proceeding; and
(B) any State civil proceeding, to the extent provided by the law of the State.
(k) A restitution order shall provide that the defendant shall notify the court and the Attorney General of any material change in the defendant's economic circumstances that might affect the defendant's ability to pay restitution. The court may also accept notification of a material change in the defendant's economic circumstances from the United States or from the victim. The Attorney General shall certify to the court that the victim or victims owed restitution by the defendant have been notified of the change in circumstances. Upon receipt of the notification, the court may, on its own motion, or the motion of any party, including the victim, adjust the payment schedule, or require immediate payment in full, as the interests of justice require.
(l) A conviction of a defendant for an offense involving the act giving rise to an order of restitution shall estop the defendant from denying the essential allegations of that offense in any subsequent Federal civil proceeding or State civil proceeding, to the extent consistent with State law, brought by the victim.
(m)(1)(A)(i) An order of restitution may be enforced by the United States in the manner provided for in subchapter C of chapter 227 and subchapter B of chapter 229 of this title; or
(ii) by all other available and reasonable means.
(B) At the request of a victim named in a restitution order, the clerk of the court shall issue an abstract of judgment certifying that a judgment has been entered in favor of such victim in the amount specified in the restitution order. Upon registering, recording, docketing, or indexing such abstract in accordance with the rules and requirements relating to judgments of the court of the State where the district court is located, the abstract of judgment shall be a lien on the property of the defendant located in such State in the same manner and to the same extent and under the same conditions as a judgment of a court of general jurisdiction in that State.
(2) An order of in-kind restitution in the form of services shall be enforced by the probation officer.
(n) If a person obligated to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed.
(o) A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that—
(1) such a sentence can subsequently be—
(A) corrected under Rule 35 of the Federal Rules of Criminal Procedure and Section 3742 of chapter 235 of this title;
(B) appealed and modified under Section 3742;
(C) amended under subsection (d)(5); or
(D) adjusted under Section 3664(k), 3572, or 3613A; or
(2) the defendant may be resentenced under Section 3565 or 3614.
(p) Nothing in this section or Sections 2248, 2259, 2264, 2327, 3663, and 3663A and arising out of the application of such sections, shall be construed to create a cause of action not otherwise authorized in favor of any person against the United States or any officer or employee of the United States.
1. | Author Contact Information Restitution, Black's Law Dictionary (10th ed. 2014). U.S. Government Accountability Office, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Improved, GAO-18-203, at 22 (Feb. 2018). The Department of Justice estimates that only $10 billion of the $110 billion in uncollected restitution will ever be recovered due to the offenders' inability to pay. Id. at 25. Defendants in immigration and drug offenses make up 62.5% of those convicted in a given year. U.S. Sentencing Commission, 2018 Sourcebook: 2018 Primary Offense and Offender Characteristics - Figure 2, available at https://www.ussc.gov/research/sourcebook-2018. Yet the courts order less than 2% of the defendants in such cases to pay restitution. U.S. Government Accountability Office, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Improved, App. I, GAO-18-203, at 44 (Feb. 2018). United States v. Rankin, 929 F.3d 399, 410 (6th Cir. 2019); United States v. Steele, 897 F.3d 606, 609 (4th Cir. 2018); United States v. Polukhin, 896 F.3d 848, 851 (8th Cir. 2018); United States v. Sexton, 894 F.3d 787, 799 (6th Cir. 2018); United States v. Brooks, 872 F.3d 78, 88 (2d Cir. 2017); United States v. Collins, 854 F.3d 1324, 1329 (11th Cir. 2017); United States v. Wright, 848 F.3d 1274, 1284 (10th Cir. 2017). This report is available in an abridged form—without footnotes, citations to most authorities, or appendices—as CRS Report RS22708, Restitution in Federal Criminal Cases: A Sketch. Related reports include CRS Report RL33679, Crime Victims' Rights Act: A Summary and Legal Analysis of 18 U.S.C. §3771, by Charles Doyle, available in abridged form as CRS Report RS22518, Crime Victims' Rights Act: A Sketch of 18 U.S.C. §3771, by Charles Doyle. Section 3663 is sometimes referred to as the Victim and Witness Protection Act or VWPA. The text of Sections 3663, 3663A, and 3664 is appended. Section 3663A is sometimes referred to as the Mandatory Victim Restitution Act or MVRA. Id. § 43(c). Id. § 228(d) (the court must order restitution for misdemeanor child support offenses as well); e.g., United States v. Hanna, 630 F.3d 505, 512 (7th Cir. 2010). 18 U.S.C. § 1593; e.g., United States v. Charles, 895 F.3d 560, 562 (8th Cir. 2018); United States v. Baston, 818 F.3d 651, 671 (11th Cir. 2016). 18 U.S.C. § 2248; e.g., United States v. Thunderhawk, 860 F.3d 633, 635 (8th Cir. 2017). 18 U.S.C. § 2259 (the court must order restitution for misdemeanor child sexual exploitation offenses as well); e.g., United States v. Romero-Medrano, 899 F.3d 356, 358 (5th Cir. 2018); United States v. Dillard, 891 F.3d 151, 154-55 (4th Cir. 2018). 18 U.S.C. § 2264 (the court must order restitution for misdemeanor stalking/domestic violence offenses as well); e.g., United States v. Hobgood, 868 F.3d 744, 748 (8th Cir. 2017). 18 U.S.C. § 2323. Id. § 2327. 21 U.S.C. § 853(q). 18 U.S.C. § 2421A, enacted as Section 3(a) of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, P.L. 115-164, 132 Stat. 1253 (2018). 18 U.S.C. 2429, enacted as Section 3(a) of the Abolish Human Trafficking Act of 2017, P.L. 115-392, 132 Stat. 5251 (2018). 18 U.S.C. §§ 3663(a)(3), 3663A(a)(3), 3563(b)(2), 3583(d); United States v. Rankin, 929 F.3d 399, 410 (6th Cir. 2019) (The obligation to pay restitution, ordered solely as a condition of supervised release, begins to run only after the defendant is released from prison.). | |||||||||||||||||||||||||||||||||||||||
2. |
Section 3663 is sometimes referred to as the Victim and Witness Protection Act or (VWPA). |
|||||||||||||||||||||||||||||||||||||||
3. |
Section 3663A is sometimes referred to as the Mandatory Victim Restitution Act or MVRA. |
|||||||||||||||||||||||||||||||||||||||
4. |
18 U.S.C. 3663(a)(3), 3663A(a)(3), 3563(b)(2), 3583(d). |
|||||||||||||||||||||||||||||||||||||||
5. |
18 U.S.C. 3663A(a), (c). |
|||||||||||||||||||||||||||||||||||||||
6. |
Id. |
|||||||||||||||||||||||||||||||||||||||
7. |
21 U.S.C. 856; 18 U.S.C. 3663A(a), (c). |
|||||||||||||||||||||||||||||||||||||||
8. |
18 U.S.C. 43(c). |
|||||||||||||||||||||||||||||||||||||||
9. |
18 U.S.C. 228(d)(the court must order restitution for misdemeanor child support offenses as well). |
|||||||||||||||||||||||||||||||||||||||
10. |
18 U.S.C. 1593. |
|||||||||||||||||||||||||||||||||||||||
11. |
18 U.S.C. 2248. |
|||||||||||||||||||||||||||||||||||||||
12. |
18 U.S.C. 2259(the court must order restitution for misdemeanor child sexual exploitation offenses as well). |
|||||||||||||||||||||||||||||||||||||||
13. |
18 U.S.C. 2264(the court must order restitution for misdemeanor stalking/domestic violence offenses as well). |
|||||||||||||||||||||||||||||||||||||||
14. |
18 U.S.C. 2323. |
|||||||||||||||||||||||||||||||||||||||
15. |
18 U.S.C. 2327. |
|||||||||||||||||||||||||||||||||||||||
16. |
21 U.S.C. 853(q). |
|||||||||||||||||||||||||||||||||||||||
17. |
18 U.S.C. 3664(f). |
|||||||||||||||||||||||||||||||||||||||
18. |
United States v. Roper, 462 F.3d 336, 337-40 (4th Cir. 2006). |
|||||||||||||||||||||||||||||||||||||||
19. |
18 U.S.C. 3663. |
|||||||||||||||||||||||||||||||||||||||
20. |
18 U.S.C. 3663A(b), 3663(b), 3563; United States v. Walker, 746 F.3d 300, 308 (7th Cir. 2014)("The purpose of the MVRA is to ensure that victims recover the full amount of their losses, but nothing more"); United States v. Maynard, 743 F.3d 374, 378 (2d Cir. 2014); United States v. Freeman, 741 F.3d 426, 434 (4th Cir. 2014)("Persuaded by our sister circuits' reasoning, we join them in holding that awards of restitution ordered as a condition of supervised released must compensate only for the loss caused by the specific conduct that is the basis of the offense of conviction"); United States v. Isgar, 739 F.3d 829, 842 (5th Cir. 2014); In re Local #46 Metallic Lathers Union, 568 F.3d 81, 85 (2d Cir. 2009); United States v. Stennis-Williams, 557 F.3d 927, 930 (8th Cir. 2009); United States v. Boring, 557 F.3d 707, 713 (6th Cir. 2009). A defendant may agree in a plea bargain to pay restitution to an extent not otherwise authorized, 18 U.S.C. 3663(a)(3), 3663A(a)(3); United States v. Winans, 748 F.3d 268, 270 (6th Cir. 2014); United States v. Benns, 740 F.3d 370, 377 (5th Cir. 2014); United States v. Davis, 714 F.3d 809, 815 (4th Cir. 2013); United States v. Moore, 703 F.3d 562, 573 (D.C. Cir. 2012). |
|||||||||||||||||||||||||||||||||||||||
21. |
|
|||||||||||||||||||||||||||||||||||||||
Mertens v. Hewitt Associates, 508 U.S. 248, 256 (1993) (emphasis added) ("'Equitable relief' can also refer to those categories of relief that were typically available in equity (such as injunction, mandamus, and |
||||||||||||||||||||||||||||||||||||||||
Collen P. Murphy, Misclassifying Monetary Restitution, 55 SMU |
||||||||||||||||||||||||||||||||||||||||
Firefighters v. Stotts, 467 U.S. 561, 582 n.l5 (1984) ("[F]ederal courts are empowered to fashion such relief as the particular circumstances of a case may require to effect restitution, making whole insofar as possible the victim ...") |
||||||||||||||||||||||||||||||||||||||||
H. |
||||||||||||||||||||||||||||||||||||||||
Ex parte United States, 242 U.S. 27, 51-2 (1916). |
||||||||||||||||||||||||||||||||||||||||
P.L. 68-596, 43 Stat. 1259 (1925). |
||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3651 (1976 ed.) ("While on probation and among the conditions thereof, the defendant—May be required to pay a fine in one or several sums; and May be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and May be required to provide for the support of any persons for whose support he is legally responsible."). |
||||||||||||||||||||||||||||||||||||||||
United States v. Elkins, 731 F.2d 1005, 1010-11 (2d Cir. 1984) |
||||||||||||||||||||||||||||||||||||||||
Id. |
||||||||||||||||||||||||||||||||||||||||
"Crime victims and their advocates have called on state legislators to restore restitution to its proper place in criminal law. They point out that the average dollar losses victims suffer total hundreds of dollars, not thousands, and that most ex-offenders, not just those on probation, have some means to undo the financial harm they have done. There is no reason to believe that victims of federal crimes do not have the same grievances," id. |
||||||||||||||||||||||||||||||||||||||||
P.L. 97-291, 96 Stat. 1253 (1982); now found as amended at 18 U.S.C. § 3663. |
||||||||||||||||||||||||||||||||||||||||
P.L. 103-322, 108 Stat. 1904, 1906, 1928 (1994), 18 U.S.C. §§ 2248, 2259, and 2264, respectively. |
||||||||||||||||||||||||||||||||||||||||
P.L. 104-132, 110 Stat. 1227 (1996), 18 U.S.C. § 3663A. |
||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
|
Id. 37.
|
|
Id. 38.
|
|
Id. §§ 3663(a)(3), 3663A(a)(3); United States v. Polukhin, 896 F.3d 848, 851 (8th Cir. 2018); United States v. Kieffer, 794 F.3d 850, 853 (7th Cir. 2015); cf. United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2019) (emphasis added) ("An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea."). 39.
|
|
18 U.S.C. §§ 1593(c) [18 U.S.C. ch. 77 (human trafficking)], 2248(c) [(18 U.S.C. ch. 109A (sexual abuse)], 2259(c)(4) [18 U.S.C. ch. 110 (sexual exploitation of children)], 2264(c) [18 U.S.C. ch. 110A (domestic violence)], 2429(d) [18 U.S.C. ch. 117 (travel or transportation for unlawful sexual purposes)]. 40.
|
|
Id. §§ 1593(c) (18 U.S.C. ch. 77 (human trafficking)), 2248(c) (18 U.S.C. ch. 109A (sexual abuse)), 2259(c)(4) (18 U.S.C. ch. 110 (sexual exploitation of children)), 2264(c) (18 U.S.C. ch. 110A (domestic violence)), 2429(d) (18 U.S.C. ch. 117 (travel or transportation for unlawful sexual purposes). 41.
|
|
Id. §§ 3663(a)(3), 3663A(a)(3). In the absence of a conflict, the statutes, that call for restitution in domestic violence and sex offenses cases, incorporate the provisions of Sections 3663A and 3664, §§ 1593(b)(2), 2248(b)(2), 2259(b)(3), 2264(b)(2), 2429(b)(2). |
United States v. Florence, 741 F.2d 1066, 1067-68 (8th Cir. 1984); United States v. Statterfield, 743 F.2d 827, 836-37 (11th Cir. 1984); United States v. Brown, 744 F.2d 905, 910-11 (2d Cir. 1984); United States v. Keith, 754 F.2d 1388, 1391-392 (9th Cir. 1985); United States v. Watchman, 749 F.2d 616, 617 (10th Cir. 1984); United States v. Palma, 760 F.2d 475, 479-80 (3d Cir. 1985); United States v. Gomer, 764 F.2d 1221, 1228-229 (7th Cir. 1985). |
||||||||||||||||||||||||||||
38. |
United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006)(ex post facto clause applies); accord, United States v. Grice, 319 F.3d 1174, 1177 (9th Cir. 2003); United States v. Schulte, 264 F.3d 656, 662 (6th Cir. 2001); United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998); United States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997); United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997); United States v. Thompson, 113 F.3d 13, 15, n.1 (2d Cir. 1997); United States v. Rico Industries, Inc., 854 F.2d 710, 714 (5th Cir. 1988); contra, United States v. Baldwin, 414 F.3d 791, 800 (7th Cir. 2005); United States v. Nichols, 169 F.3d 1255, 1279-280 (10th Cir. 1999). See also United States v. Gupta, 572 F.3d 878, 891 (11th Cir. 2009)("Although the Mandatory Act ordinarily does not apply to offenses that occurred before it became effective ... the Act applies to conspiratorial offenses that began before that date but concluded after it"); United States v. Williams, 612 F.3d 500, 511 (6th Cir. 2010)("[T]he MVRA applies to crimes that occurred prior to and continued past the effective date of the MVRA ... this application does not violate Ex Post Facto Clause"). |
|||||||||||||||||||||||||||||||||||||||
39. |
United States v. Newsome, 322 F.3d 328, 342 (4th Cir. 2003); United States v. Dubose, 146 F.3d 1141, 1148 (9th Cir. 1998). |
|||||||||||||||||||||||||||||||||||||||
40. |
United States v. Bajakajian, 524 U.S. 321, 337 (1998)("If the amount of the forfeiture is grossly disproportional to the gravity of the defendant's offense, it is unconstitutional" under the excessive fines clause); cf., Lockyer v. Andrade, 538 U.S. 63, 72 (2003)(noting that for purposes of the cruel and unusual punishments clause, the "gross disproportionality principle" is the appropriate standard but that the factors that evidence such imbalance are less easily identified). |
|||||||||||||||||||||||||||||||||||||||
41. |
United States v. v. Alexander, 679 F.3d 721, 731 (8th Cir. 2012); United States v. Newell, 658 F.3d 1, 35 (1st Cir. 2011); United States v. Boring, 557 F.3d 707, 713 (6th Cir. 2009); United States v. Parker, 553 F.3d 1309, 1323 (10th Cir. 2009); United States v. Arledge, 553 F.3d 881, 899 (5th Cir. 2008); United States v. Boccagna, 450 F.3d 107, 117 (2d Cir. 2006); United States v. Gordon, 393 F.3d 1044, 1060 (9th Cir. 2004); United States v. Dawson, 250 F.3d 1048, 1050 (7th Cir. 2001). |
|||||||||||||||||||||||||||||||||||||||
42. |
530 U.S. 466 (2000). |
|||||||||||||||||||||||||||||||||||||||
43. |
543 U.S. 220 (2005). |
|||||||||||||||||||||||||||||||||||||||
44. |
United States v. Booker, 543 U.S. at 244; see also Apprendi v. New Jersey, 530 U.S. at 490. |
|||||||||||||||||||||||||||||||||||||||
45. |
United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012)("Prior to Southern Union [decided on June 21, 2012, and holding that applies to criminal fines], every circuit to consider whether Apprendi applies to restitution held that it did not.... As the Sixth Circuit aptly explained ... 'restitution is not subject to Apprendi because the statutes authorizing restitution, unlike ordinary penalty statutes, do not provide a determinate statutory maximum.' That logic was sound when written before Southern Union and it remains so today"); see also United States v. Green, 722 F.3d 1146, 1151 (9th Cir. 2013)(holding that Southern Union does not justify repudiation of the circuit's Apprendi restitution precedents); United States v. Read, 710 F.3d 219, 231 (5th Cir. 2012); pre-Southern Union restitution cases include United States v. Lewis, 557 F.3d 601, 615 (8th Cir. 2009); United States v. Bonner, 522 F.3d 804, 806-807 (7th Cir. 2008); United States v. Reifler, 446 F.3d 65, 118 (2d Cir. 2006); United States v. Leahy, 438 F.3d 328, 331 (3d Cir. 2006); United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005); United States v. Visinaiz, 428 F.3d 1300, 1316 (10th Cir,. 2005); United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005); United States v. Antonakopoulous, 399 F.3d 68, 83 (1st Cir. 2005). Cases reaching the same conclusion but decided between Apprendi and Booker include United States v. DeGeorge, 380 F.3d 1203, 1221 (9th Cir. 2004); United States v. Wooten, 377 F.3d 1134, 1144-145 (10th Cir. 2004). |
|||||||||||||||||||||||||||||||||||||||
46. | Under the Dictionary Act, "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, associations, and joint stock companies, as well as individuals." 1 U.S.C. § 1; United States v. Benedict, 855 F.3d 880, 886-87 (8th Cir. 2017); cf. United States v. Ritchie, 858 F.3d 201, 212 (4th Cir. 2017) (concluding that Bank of America was a victim for purposes of the MVRA); United States v. Martin, 803 F.3d 581, 592-93 (11th Cir. 2015) (holding that three banks were victims within the meaning of the statute). United States v. United Mine Workers, 330 U.S. 258, 275 (1947) ("The Act does not define 'persons.' In common usage that term does not include the sovereign, and statutes employing it will ordinarily not be construed to do so."). Of course, human beings are persons even when victimized while acting in an official capacity, see, e.g., United States v. Holthaus, 486 F.3d 451, 458 (8th Cir. 2007) (finding that "bankruptcy trustees qualify as victims under the statute if their compensation is negatively impacted by a debtor's misrepresentation," after the defendant argued that trustees could not be considered "persons" for restitution purposes). | |||||||||||||||||||||||||||||||||||||||
47. |
18 U.S.C. 3579 (1982 ed.). The original section was redesignated as 18 U.S.C. 3663 as part of the 1984 Sentencing Reform Act, P.L. 98-473, 98 Stat. 2010 (1984). |
|||||||||||||||||||||||||||||||||||||||
48. |
Hughey v. United States, 495 U.S. 411, 422 (1990). Hughey was originally charged with several counts of credit card fraud. He pleaded guilty to a single count, but the trial court ordered restitution to the issuing bank for losses identified in the counts that had been dropped as part of the plea agreement. The Court disagreed, "The plain language of VWPA makes clear that the District Court's restitution order in this case was unauthorized. Petitioner pleaded guilty only the charge that he fraudulently used the credit card of Hershey Godfrey. Because the restitution order encompassed losses stemming from alleged fraudulent uses of cards issued to persons other than Godfrey, such portions of the order are invalid," id. |
|||||||||||||||||||||||||||||||||||||||
45.
|
|
Id. §§ 1593(c) (18 U.S.C. ch. 77 (human trafficking), 2248(c) (18 U.S.C. ch. 109A (sexual abuse)), 2259(c)(4) (18 U.S.C. ch. 110 (sexual exploitation of children)), 2264(c) (18 U.S.C. ch. 110A (domestic violence)), 2429(d) (18 U.S.C. ch. 117 (travel or transportation for unlawful sexual purposes). 46.
|
18 U.S.C. § 3663(a)(2) (…"'victim' means a person directly and proximately harmed…"); id. § 3663A(a)(2 |
|
||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
52. |
18 U.S.C. 3663(a)(2), 3663A(a)(2). |
|||||||||||||||||||||||||||||||||||||||
53. |
Id. ("... in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern ... "); United States v. Jinwright, 683 F.3d 471, 486 (4th Cir. 2012)(internal citations and quotation marks omitted)("[T]he district court did not therefore err by ordering restitution for losses caused by acts for which the defendant was not convicted. Rather, the district court properly looked to the specific conduct underlying the offense of conviction, meaning all acts comprising the scheme to defraud"); United States v. Brown, 665 F.3d 1239, 1252 (11th Cir. 2011) ("[R]estitution orders for conduct closely related to the offense of conviction are appropriate under either §3663 or §3663A, in addition to the specific conduct for which the defendant was convicted"); United States v. Jones, 641 F.3d 706, 714 (6th Cir. 2011)("In the context of mail fraud convictions, we have read this statutory definition of 'victim' to allow for restitution for the loss attributable to all the victims of a defendant's scheme to defraud, even when the defendant was not indicted or convicted of fraud with respect to each victim"); see also United States v. Spencer, 700 F.3d 317, 234 (8th Cir. 2012); United States v. Locke, 643 F.3d 235, 247 (7th Cir. 2011); United States v. Paul, 634 F.3d 668, 676-77 (2d Cir. 2011). |
|||||||||||||||||||||||||||||||||||||||
54. |
18 U.S.C. 3663(a)(3), 3663A(a)(3). |
|||||||||||||||||||||||||||||||||||||||
55. |
United States v. Fallon, 470 F.3d 542, 549 (3d Cir. 2005)("Restitution should not be ordered in respect to a loss which would have occurred regardless of the defendant's conduct"); United States v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002). |
|||||||||||||||||||||||||||||||||||||||
49.
|
|
18 U.S.C. §§ 3663(a)(2), (a)(3); 3663A(a)(2), (a)(3). United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2019) (internal citations omitted) (Section 3663A "limits restitution to the actual loss directly and proximately caused by the defendant's offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea."); United States v. Olson, 867 F.3d 224, 229 n.2 (1st Cir. 2017); United States v. Yijun Zhou, 838 F.3d 1007, 1012 & 1012 n.3 (9th Cir. 2016); United States v. Gushlak, 728 F.3d 194-95 & 195 n.7 (2d Cir. 2013). 50.
|
|
18 U.S.C. §§ 3663(a)(2) ("… the term 'victim' means … in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern…"), 3663A(a)(2) (same). |
United States v. | |||||||||||||||||||||||||||||||||||
57. |
United States v. Peterson, 538 F.3d 1064, 1075 (9th Cir. 2008)("Defendant's conduct need not be the sole cause of the loss, but any subsequent action that contributes to the loss, such as an intervening cause must be directly related to the defendant's conduct. We have approved restitution awards that included losses at least one step removed from the offense conduct itself, but the causal chain may not extend so far, in terms of the facts or the time span, as to become unreasonable. The main inquiry for causation in investigation cases is whether there was an intervening cause, and if so, whether this intervening cause was directly related to the offense")(internal citations and quotation marks omitted); United States v. Robertson, 493 F.3d at 1334 ("[W]e agree with the definitions that our sister circuits have adopted ... see also United States v. Donaby, 349 F.3d 1046, 1054 (7th Cir. 2003)('victim under the Restitution Act harmed by likely and foreseeable outcome of the crime')"). |
|||||||||||||||||||||||||||||||||||||||
58. |
Paroline v. United States, 134 S.Ct. 1710, 1720 (2014)(internal citations and quotation marks omitted). |
|||||||||||||||||||||||||||||||||||||||
59. |
18 U.S.C. 3663(a)(2); 3663A(a)(2); United States v. Napier, 463 F.3d 1040, 1046 (9th Cir. 2006)("Restitution may go beyond the offense of conviction under certain conditions if the offense of conviction contains an element of a scheme, conspiracy or pattern of criminal activity"). |
|||||||||||||||||||||||||||||||||||||||
60. |
|
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. §§ 1341 (mail fraud), 1343 (wire fraud) |
||||||||||||||||||||||||||||||||||||||||
United States v. Sanjar, 876 F.3d 725, 748 (5th Cir. 2017) (internal citations omitted) ("When the offense of conviction involves a 'scheme', the restitution statute broadens the definition of victim to include any person directly harmed by the defendant's criminal conduct in the course of the scheme. In such a situation, restitution may include losses suffered by victims not named in the indictment so long as they are victims of the scheme described therein. Conspiracy to commit health care fraud requires a scheme."); United States v. Wirth, 719 F.3d 911, 917 ( | ||||||||||||||||||||||||||||||||||||||||
63. |
|
|||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
65. |
United States v. Oladimeij, 463 F.2d 152, 159 (2d Cir. 2006)("Section 1029(a)(3) includes as an element that the possession [of stolen credit cards] be 'with intent to defraud.' Intent to defraud is a 'scheme,' as used in §3663A(a)(2)"); United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003) ("Even when a defendant is not formally convicted of conspiracy, a district court may order a restitution amount for the relevant conduct of others that may be attributed to him" (speaking of defendant who as one of a group of defendants pleaded guilty to bank fraud but not conspiracy)). |
|||||||||||||||||||||||||||||||||||||||
66. |
The dual coverage involves deceased victims. One section permits an order of restitution to the victim's estate if the victim is deceased, 18 U.S.C. 3663(a)(1)(A) ("... that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim's estate.... "); 3663A(a)(1) (same). In different language, a second permits orders for the representatives of the deceased and of underage or incapacitated victims as well, 3663(a)(2)("... In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person appointed as suitable by the court, may assume the victim's rights under this section, but in no event shall the defendant be named as such representative or guardian"); 3663A(a)(2)(same). |
|||||||||||||||||||||||||||||||||||||||
67. |
18 U.S.C. 3663(a)(1)(A)("... The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victims of the offense"); 3663A(a)(2) ("The court shall also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victims of the offense"). |
|||||||||||||||||||||||||||||||||||||||
57.
|
|
United States v. Villalobos, 879 F.3d 169, 171 (5th Cir. 2018) ("[T]he 'victim' includes a minor's guardians."); United States v. Nossan, 647 F.3d 822, 828 (8th Cir. 2011) ("The district court did not focus on the potential victims in Gunderson's family who purportedly paid the costs of Gunderson's funeral and burial, and who requested the restitution [in the amount of $22,626.40], We focus on the issues addressed by the district court.").United States v. Wilcox, 487 F.3d 1163, 1176-178 (8th Cir. 2007) (holding restitution may not include income lost by the mother of a rape victim under the theory that the child's mother was likewise a victim of the crime, but may include reimbursement to the mother for the cost of transporting the child to receive crime-necessitated medical treatment); United States v. Hayward, 359 F.3d 631, 642 (3d Cir. 2004) (upholding a restitution order for parents whose children had been transported to London for illicit sexual purposes with the terse observation that the parents "incurred reasonable costs in obtaining the return of their victimized children from London and in making their children available to participate in the investigation and trial. The restitution order will therefore be affirmed."); see also United States v. Douglas, 525 F.3d 225, 254 (2d Cir. 2008) (affirming a restitution order to compensate the father of a murdered victim for the annual leave the father used to assist in the investigation and attend court proceedings. Before rejecting the defendant's contention that annual leave could not be considered lost income, the court observed without further comment that the defendant had "conceded that Morgan Sr. clearly is a victim within the meaning of the MVRA."). 58.
|
|
18 U.S.C. 3663(a)(3) ("The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement."); 3663A(a)(3) (same). The language suggests that the parties may agree to restitution for the benefit of persons not otherwise qualified as victims or in amounts that otherwise qualified victims would not be entitled to, or both. United States v. Mathew, 916 F.3d 510, 516 (5th Cir. 2019) (internal citations omitted) (emphasis added) (Section 3663A "'limits restitution to the actual loss directly and proximately caused by the defendant's offense of conviction. An award of restitution cannot compensate a victim for losses caused by conduct not charged in the indictment or specified in a guilty plea.'"); United States v. Polukhin, 896 F.3d 848, 851 (8th Cir. 2018) ("The Victim and Witness Protection Act, however, provides that the court may order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense."); United States v. Olson, 867 F.3d 224, 229 n.2 (1st Cir. 2017). 59.
|
|
18 U.S.C. §§ 3663A(a)(1), (c)(1)(A). e.g., United States v. Wells, 873 F.3d 1241, 1247-48 (10th Cir. 2017). In the case of misdemeanors, the district court has the discretion to impose only restitution or to order restitution in addition to any other penalties that attend conviction. 60.
|
|
138 S. Ct. 1204, 1210 (2018). 61.
|
|
United States v. Garcia-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018) (18 U.S.C. § 1951). |
Under the Dictionary Act, "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise ... the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, associations , and joint stock companies, as well as individuals," 1 U.S.C. 1 (emphasis added); see also United States v. United Mine Workers, 330 U.S. 258, 275 (1947)("The Act does not define 'persons.' In common usage that term does not include the sovereign, and statutes employing it will ordinarily not be construed to do so"). Of course, human beings are persons even when victimized while acting in an official capacity, United States v. Holthaus, 486 F.3d 451, 458 (8th Cir. 2007)(finding that "bankruptcy trustees qualify as victims under the statute if their compensation is negatively impacted by a debtor's misrepresentation," after the defendant argued that trustees could not be considered "persons" for restitution purposes). |
|||||||||||||||||||||||||||||
United States v. United States v. Cowden, 882 F.3d 464, 476 n. 3 (4th Cir. 2018) (18 U.S.C. § 242) (use of excessive force under color of law); United States v. Schmidt, 675 F.3d 1164, 1167 (8th Cir. 2012) (18 U.S.C. § 113(a) (assault with a dangerous weapon); United States v. Martinez, 486 F.3d 1239, 1248 (11th Cir. 2007) (18 U.S.C. § 111(a) (forcibly assaulting a corrections officer). United States v. Patrick V., 359 F.3d 3, 9 (1st Cir. 2004) (18 U.S.C. § 844(i)) (arson). United States v. Dorcely, 454 F.3d 366, 376 (D.C. Cir. 2006) (18 U.S.C. § 1001). United States v. Diaz, 865 F.3d 168, 178-79 (4th Cir. 2017) (49 U.S.C. § 46504). United States v. Begay, 934 F.3d 1033, 1038 (9th Cir. 2019) ("Second-degree murder does not constitute a crime of violence under the elements clause – 18 U.S.C. § 924(d)(3)(A) – because it can be committed recklessly."). Leocal v. Ashcroft, 543 U.S. 1, 11 (2004); see also United States v. Daye, 571 F.3d 225, 232 (2d Cir. 2009) (noting for the same reason that reckless manslaughter and driving while intoxicated are not crimes of violence as defined in Section 16). E.g., United States v. Kaplan, 839 F.3d 795, 799-800 (9th Cir. 2016). Most other controlled substance offenses come within the purview of Section 3663. | ||||||||||||||||||||||||||||||||||||||||
70. |
|
|||||||||||||||||||||||||||||||||||||||
71. |
United States v. | |||||||||||||||||||||||||||||||||||||||
72. |
Compare In re Amy Unknown, 697 F.3d 306, 330 (5th Cir. 2012)("[W]e reject the approach of our sister circuits and hold that §2559 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse") with United States v. Burgess, 684 F.3d 445, 457 (4th Cir. 2012)("We ... conclude that nothing in the text or structure of the restitution statute [§2259] affirmatively indicates that Congress intended to negate the ordinary requirement of proximate cause for an award of compensatory damages. Rather, the statute's language, which defines a victim as one 'harmed as a result of a commission' of a defendant's acts, invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused"); United States v. Evers, 669 F.3d 645, 658 (6th Cir. 2012)("The majority of the circuits that have addressed this issue have held that a showing of proximate cause is a necessary element of all claims for restitution sought under §2259(b)(3) ..."); United States v. Kearney, 672 F.3d 81, 95 (1st Cir. 2012); United States v. McGarity, 669 F.3d 1218, 1267 (11th Cir. 2012); United States v. Aumais, 656 F.3d 147, 153-54 (2d Cir. 2011); United States v. Monzel, 641 F.3d 528, 535 (D.C. Cir. 2011). |
|||||||||||||||||||||||||||||||||||||||
72.
|
18 U.S.C. § 3663A(c)(3) ("This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if the court finds, from facts on the record, that- (A) the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process."). This does not necessarily mean that restitution is barred for identifiable victims simply because other victims may be unidentifiable, United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999). The number-of-victims and complexity-of-restitution limitations are only available to defendants convicted of property damage/fraud predicate offenses; they are not available to other defendants subject to mandatory restitution under § 3663A. United States v. Cienfuegos, 462 F.3d 1160, 1168 (9th Cir. 2006); United States v. Murray, 700 F.3d 241, 243 (5th Cir. 2012).
73.
|
|
18 U.S.C. § 3663A(c)(3) ("This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if the court finds, from facts on the record, that … (B) . . . the need to provide restitution to any victim is outweighed by the burden on the sentencing process."). 74.
|
|
United States v. Carpenter, 841 F.3d 1057, 1060 (8th Cir. 2016) (internal citation omitted) ("In cases where the amount of loss (and by extension the amount of restitution) caused by fraud is difficult to calculate, a district court is charged only with making a reasonable estimate of the loss."); United States v. Ferdman, 779 F.3d 1129, 1133 (10th Cir. 2015) (internal citations and emphasis omitted) ("A district court may resolve restitution uncertainties with a view towards achieving fairness to the victim so long as it still makes a reasonable determination of appropriate restitution rooted in a calculation of actual loss. True, the MVRA does not require a court to calculate a victim's actual loss with 'exact' precision."); United States v. Anderson, 741 F.3d 938, 954 (9th Cir. 2013) ("Nonetheless, exact precision is not required and district courts do have a degree of flexibility in accounting for a victim's complete losses; thus, a 'reasonable estimate' will suffice."); but see United States v. Flete-Garcia, 925 F.3d 17, 37 (1st Cir. 2019) (internal citations omitted) ("And whereas loss calculations require only a reasonable estimate of the range of loss, the entire amount of restitution must be supported – albeit only by a 'modicum of reliable evidence.'"). 75.
|
560 U.S. 605 (2010 |
|
|||||||||||||||||||||||||||||||||
|
77Id. at 607-8 ("The statute in question focuses upon mandatory restitution for victims of crimes. It provides that 'the court shall set a date for the final determination of the victim's losses not to exceed 90 days after sentencing.' 18 U.S.C. § 3664(d)(5). We hold that a sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution – at least where, as here, the sentencing court made clear prior to the deadline's expiration that it would order restitution, leaving open (for more than 90 days) only the amount."). |
18 U.S.C. 3663A(c)(1)(A). |
||||||||||||||||||||||||||||||||||||||
75. |
United States v. Haileselassie, 668 F.3d 1033, 1034-35 (8th Cir. 2012); United States v. DeLaFuente, 353 F.3d 766, 770-71 (9th Cir. 2003). |
|||||||||||||||||||||||||||||||||||||||
76. |
|
|||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
E.g., United States v. |
||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
80. |
|
|||||||||||||||||||||||||||||||||||||||
81. |
E.g., United States v. |
|||||||||||||||||||||||||||||||||||||||
82. |
|
|||||||||||||||||||||||||||||||||||||||
83. |
E.g., United States v. |
|||||||||||||||||||||||||||||||||||||||
84. |
| |||||||||||||||||||||||||||||||||||||||
85. |
United States v. Villegas-Herndandez, 468 F.3d 874, 878-85 (5th Cir. 2006). |
|||||||||||||||||||||||||||||||||||||||
86. |
Brieva-Peraez v. Gonzales, 482 F.3d 356, 359-60 (5th Cir. 2007). |
|||||||||||||||||||||||||||||||||||||||
87. |
Most other controlled substance offenses come within the purview of §3663. |
|||||||||||||||||||||||||||||||||||||||
88. |
18 U.S.C. 3663A(c)(1)(A)(ii); United States v. Chalupnik, 514 F.3d 748, 755 (8th Cir. 2008). |
|||||||||||||||||||||||||||||||||||||||
85.
|
|
18 U.S.C. § 2421A, enacted as Section 3(a) of the Allow States and Victims to Fight Online Sex Trafficking Act of 2017, P.L. 115-164, 132 Stat. 1253 (2018). 86.
|
|
18 U.S.C. 2429, enacted as Section 3(a) of the Abolish Human Trafficking Act of 2017, P.L. 115-392, 132 Stat. 5251 (2018). 87.
|
|
18 U.S.C. § 3663(a). 88.
|
|
The Controlled Substance Act offenses consist of violations of 21 U.S.C. §§ 841 (manufacture, distribution, or possession with intent to distribute), 848(a) (drug kingpin), 849 (tracking at truck stops), 856 (maintain a place where controlled substances are manufactured, stored, or used), 861 (using a child to traffic), 863 (trafficking in drug paraphernalia). The aircraft safety offenses consist of violations of 49 U.S.C. §§ 5124 (tampering with the labels on hazardous cargo), 46312 (unlawful transportation of hazardous cargo), 46502 (air piracy), and 46504 (interfering with a flight crew). 89.
|
18 U.S.C. § 3663(a)(3); |
|
||||||||||||||||||||||||||||||
90. |
18 U.S.C. | |||||||||||||||||||||||||||||||||||||||
91. |
18 U.S.C. 670. |
|||||||||||||||||||||||||||||||||||||||
92. |
|
|||||||||||||||||||||||||||||||||||||||
93. | The number of victims and complexity of restitution limitations are only available to defendants convicted of property damage/fraud predicate offenses; they are not available to other defendants subject to mandatory restitution under §3663A, United States v. Cienfuegos, 462 F.3d 1160, 1168 (9th Cir. 2006); United States v. Murray, 700 F.3d 241, 243 (5th Cir. 2012). 18 U.S.C. § 3583(d); Alvarez, 835 F.3d at 1185; United States v. Kilpatrick, 798 F.3d 365, 391 (6th Cir. 2015). |
|||||||||||||||||||||||||||||||||||||||
94. |
18 U.S.C. 3663A(c)(3)(A)("This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if the court finds, from facts on the record, that—(A) the number of identifiable victims is so large as to make restitution impracticable"); United States v. Murray, 700 F.3d 241, 244 n.19 (5th Cir. 2012). This does not necessarily mean that restitution is barred for identifiable victims simply because other victims may be unidentifiable, United States v. Grimes, 173 F.3d 634, 639 (7th Cir. 1999). |
|||||||||||||||||||||||||||||||||||||||
95. |
18 U.S.C. 3663A(c)(3)(B)("This section shall not apply in the case of an offense described in paragraph (1)(A)(ii) if the court finds, from facts on the record, that ... (B) determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process"); United States v. Anderson, 741 F.3d 938, 954 (9th Cir. 2013)("Ultimately, however, it is the government's burden to establish that the victim suffered an actual loss in a quantifiable amount. Where the alleged loss is not quantifiable to any degree of certainty, the government's burden has not been satisfied, and no restitution should ordered"); see also United States v. Malone, 747 F.3d 481, 486 (7th Cir. 2014); United States v. Murray, 700 F.3d 241, 244 (5th Cir. 2012); United States v. Martinez, 690 F.3d 1083, 1089 (8th Cir. 2012). |
|||||||||||||||||||||||||||||||||||||||
96. |
18 U.S.C. 3663(a)(1)(A). |
|||||||||||||||||||||||||||||||||||||||
|
Cf. Burrage v. United States, 571 U.S. 204, 210 (2014) (internal citations omitted) ("When a crime requires 'not merely conduct but also a specified result of conduct,' a defendant generally may not be convicted unless his conduct is both (1) the actual cause, and (2) the 'legal' cause (often called the proximate cause) of the result."); United States v. Wells, 873 F.3d 1241, 1266 (10th Cir. 2017) (quoting 3 Charles Alan Wright et al., Federal Practice and Procedure: Federal Rules of Criminal Procedure § 546 (4th ed. 2011) ("Generally, the government must show [under the federal restitution statute] both that the defendant is the but-for cause of the person's harm and that the defendant was the proximate cause of the person's harm."). 93.
|
|
United States v. Stein, 846 F.3d 1135, 1155 (11th Cir. 2017); United States v. Soto, 799 F.3d 68, 98 (1st Cir. 2015) (quoting Robers v. United States, 572 U.S. 639, 645 (2014) and citing Paroline v. United States, 572 U.S. 434, 445 (2014)); United States v. Clark, 787 F.3d 451, 463 (7th Cir. 2015) ("Direct and proximate harm means that the loss would not have occurred 'but for' the offense and that it was 'foreseeable.'"). 94.
|
|
Paroline, 572 U.S. at 445. 95.
|
|
In re Amy, 591 F.3d 792, 794 (5th Cir. 2009), vac'd en banc sub nom., In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012); vac'd and remanded, Paroline v. United States, 572 U.S. 434 (2014). 96.
|
|
Paroline, 572 U.S. at 440. 97.
|
|
Id. at 440-41. 98.
|
|
In re Amy Unknown, 701 F.3d at 752-53. 99.
|
|
Paroline, 572 U.S. at 450 ("In this case, however, a showing of but-for causation cannot be made. The District Court found that the Government failed to prove specific losses caused by Paroline in a but-for sense and recognized that it would be 'incredibly difficult' to do so in a case like this."). 100.
|
|
Id. at 458. 101.
|
|
United States v. Winchel, 896 F.3d 387, 390 (5th Cir. 2018) (trial court erred in ordering the defendant to pay $1.5 million in restitution without determining whether the defendant's conduct proximately caused the victim's losses); United States v. Villalobos, 879 F.3d 169, 171-72 (5th Cir. 2018) (district court could not award $10,000 in restitution when it found that the total losses to the defendant were $0). 102.
|
United States v. Rothenberg, 923 F.3d 1309, 1333 (11th Cir. 2019) (after reviewing decisions in other circuits) (internal citations omitted) ("Paroline directed district courts to hold a defendant accountable only for his own individual conduct and set a restitution amount that comports with the defendant's relative role in causing the victim's general losses. How a district court arrives at that figure is largely up to the district court, so long as the number is a reasonable and circumscribed award that is suited to the relative size of the defendant's causal role in the entire chain of events that caused the victim's loss."); |
Id. The specific controlled substance and air piracy predicates include 21 U.S.C. 841 (trafficking), 848(a) (continuing criminal enterprises), 849 (trafficking at truck stops), 856 (maintaining a place where controlled substances are manufactured, stored, or used), 861(using a child in a trafficking enterprise), 863 (trafficking in drug paraphernalia); and 49 U.S.C. 5124 (tampering with the labeling on hazardous cargo), 46312 (unlawfully transporting hazardous material), 46502 (air piracy), and 46504 (interfering with a flight crew). |
|||||||||||||||||||
98. |
18 U.S.C. 3663(a)(3), 3663A(a)(3). |
|||||||||||||||||||||||||||||||||||||||
99. |
18 U.S.C. 3563(b)(2)("The court may provide ... As further conditions of a sentence of probation ... that the defendant ... (2) make restitution to a victim of the offense under §3556 (but not subject to the limitation of §3663(a) or 3663A(c)(1)(A) [which limit the crimes covered by §§3663 and 3663A]"). Probation is a sentencing option following conviction for any federal crime other than a crime for which probation is specifically prohibited or other than any class A or class B felony (i.e., any federal crime that has a maximum penalty of less than 25 years), 18 U.S.C. 3561(a), 3581. The once-mandatory and now advisory Sentencing Guidelines, however, limit probation to crimes having a sentencing range of 6 to 12 months or less, U.S.S.G. §5B1.1(a), ch.5A (Sentencing Table). Nevertheless, a court may order restitution as a condition of probation, United States v. Oceanpro Industries, Ltd., 674 F.3d 323, 330-31 (4th Cir. 2012); United States v. Batson, 608 F.3d 630, 636 (10th Cir. 2010). |
|||||||||||||||||||||||||||||||||||||||
100. |
18 U.S.C. 3583(d)("The court may order, as a further condition of supervised release ... any condition set forth as a discretionary condition of probation in §3563(b)(1) through (b)(10) ..."). The court may impose a term of supervised release with respect to any federal crime for which it imposes a term of imprisonment, 18 U.S.C. 3583; United States v. Cadet, 664 F.3d 27, 34 (2d Cir. 2011); United States v. Gibbs, 578 F.3d 694, 696 (7th Cir. 2009). |
|||||||||||||||||||||||||||||||||||||||
101. |
| |||||||||||||||||||||||||||||||||||||||
102. |
|
|||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
U.S.S.G. §2B1.1 and accompanying Application Note 3 | ||||||||||||||||||||||||||||||||||||||||
105. |
The Identity Theft Enforcement and Restitution Act, however, recognizes restitution awards for either the actual or intended harm caused by certain identity theft offenses (violations of either 18 U.S.C. §§ 1027(a)(7) or 1028A(a)), 18 U.S.C. 3663(b)(6). Moreover, a plea agreement may call for restitution that §§ 3663 and 3663A would not otherwise allow |
|||||||||||||||||||||||||||||||||||||||
United States v. Bahel, 662 F.3d 610, 648-49, 650 (2d Cir. 2011) ("[T]he money the U.N. paid in the form of his salary was plainly 'property' that belonged to the U.N., at least some of which the U.N lost as a result of Bahel's offense [receiving kickbacks from U.N. contractors], since the U.N. paid him for his honest services |
||||||||||||||||||||||||||||||||||||||||
United States v. Burks, 678 F.3d 1190, 1198- |
||||||||||||||||||||||||||||||||||||||||
Robers v. United States |
||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
111.
|
|
Lagos v. United States, 138 S. Ct. 1684, 1687 (2018) ("The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to 'reimburse the victim for lost income and necessary child care, transportation, and other expenses including during participation in the investigation or prosecution of the offense or attendance at proceedings relating to the offense.' 18 U.S.C. § 3663A(b)(4) (emphasis added.). We must decide whether the words 'investigation' and 'proceedings' are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings. In our view, they are limited to government investigations and proceedings."); see also Cornelsen, 893 F.3d at 1091. The same language appears in 18 U.S.C. § 3663(b)(4). 112.
|
|
Lagos, 138 S. Ct. at 1690. 113.
|
18 U.S.C. § 3663(b)(6). |
United States v. Robers, 698 F.3d 937, 954 (7th Cir. 2012)("This court has held that attorney's fees expended in pursuing litigation are not recoverable"); United States v. Elson, 577 F.3d at 726 ("Where an offense involves damages to loss of property, the MVRA restricts restitution to the replacement value of the property.... In cases involving such offenses, several circuits have held that district court lacks authority ... to order restitution for attorney fees and similar "consequential damages involved in determining the amount of the loss or in recovering those funds"), citing, United States v. Schnnell, 80 F.3d 1064, 1071 (5th Cir. 1996); Government of the Virgin Islands v. Davis, 43 F.3d 41, 44-5 (3d Cir. 1994). As discussed in a moment, attorneys' fees unavailable as a property loss under §3663(b)(1) or §3663A(b)(1) may be reimbursable when related to participation in the investigation or prosecution of the offense under §3663(b)(4) or §3663A(b)(4). |
||||||||||||||||||||||||||||||||||
111. |
Section 1028(a)(7) condemns whoever "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law." Section 1028A condemns similar misconduct committed during and in relation to a number of other designated federal offenses. |
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3663(c) ("(1) Notwithstanding any other provision of law ... when sentencing a defendant convicted of an offense described in ... 21 U.S.C. 841, 848(a), 849, 856, 861, 863), in which there is no identifiable victim, the court may order that the defendant make restitution in accordance with this subsection. (2)(A) An order of restitution under this subsection shall be based on the amount of public harm caused by the offense, as determined by the court in accordance with guidelines promulgated by the United States Sentencing Commission.... (3) Restitution under this subsection shall be distributed as follows: (A) 65 percent of the total amount of restitution shall be paid to the State entity designated to administer crime victim assistance in the State in which the crime occurred. (B) 35 percent of the total amount of restitution shall be paid to the State entity designated to receive Federal substance abuse block grant funds ..."). |
||||||||||||||||||||||||||||||||||||||||
|
Id.; id. § 3663(c)(2)(B); id. § 3663(c)(4) ("The court shall not make an award under this subsection if it appears likely that such award would interfere with a forfeiture under chapter 46 or chapter 96 of this title or under the Controlled Substances Act."); id. § 3663(c)(5) ("Notwithstanding section 3612(c) or any other provision of law, a penalty assessment under section 3013 or a fine under subchapter C of chapter 227 [relating to fines for federal offenses] shall take precedence over any order of restitution under this subsection."). 116.
|
The copyright restitution statute is an exception to this general rule; it adopts Sections 3663A and 3664 by cross reference with no additional features other than the offenses that trigger the mandatory restitution requirement. Id. § 2323(c) |
18 U.S.C. 3663(c)(1), 3663(c)(2)(B). |
|||||||||||||||||||||||||||||||||||||
114. |
United States v. Mansoori, 304 F.3d 635, 677 (7th Cir. 2002). |
|||||||||||||||||||||||||||||||||||||||
115. |
18 U.S.C. 3663(b)(6). |
|||||||||||||||||||||||||||||||||||||||
116. |
18 U.S.C. 3663(c)(1)("Notwithstanding any other provision of law (but subject to the provisions of subsections (a)(1)(B)(i)(II) and (ii)[)], when sentencing a defendant convicted of an offense described in §401, 408(a), 409, 416, 420, or 422(a) of the Controlled Substances Act (21 U.S.C. 841[drug trafficking], 848(a)[continuing criminal enterprise], 849[drug trafficking at truck stops], 856 [maintaining drug-involved premises], 861 [using children in a drug operation], 863 [trafficking in drug paraphernalia]), in which there is no identifiable victim, the court may order that the defendant make restitution in accordance with this subsection"). |
|||||||||||||||||||||||||||||||||||||||
117. |
|
|||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 228(f)(3) ("[T]he term 'support obligation' means any amount determined under a court order or an order of an administrative process pursuant to the law of a State or of an Indian tribe to be due from a person for the support and maintenance of a child or of a child and the parent with whom the child is living."). |
||||||||||||||||||||||||||||||||||||||||
United States v. Gill, 264 F.3d 929, 931-33 ( |
||||||||||||||||||||||||||||||||||||||||
United States v. Molak, 276 F.3d 45, 51 ( |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 1593(c) ("As used in this section, the term 'victim' means the individual harmed as a result of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or a representative of the victim's estate, or another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named such representative or guardian."). |
||||||||||||||||||||||||||||||||||||||||
Chapter 77 of Title 18 of the United States Code houses the following criminal prohibitions: |
||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 2327 (1994 ed.). |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 2327 now provides: "(a) In general—Notwithstanding §3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution to all victims of any offense for which an enhanced penalty is provided under §2326. "(b) Scope and nature of order.—(1) Directions.—The order of restitution under this section shall direct the defendant to pay to the victim (through the appropriate court mechanism) the full amount of the victim's losses as determined by the court pursuant to paragraph (2). (2) Enforcement.—An order of restitution under this section shall be issued and enforced in accordance with §3664 in the same manner as an order under §3663A. (3) Definition.—For purposes of this subsection, the term 'full amount of the victim's losses' means all losses suffered by the victim as a proximate result of the offense. (4) Order mandatory—(A) The issuance of a restitution order under this section is mandatory. (B) A court may not decline to issue an order under this section because of—(i) the economic circumstances of the defendant; or (ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source. "(c) Victim defined—In this section, the term 'victim' has the meaning given that term in §3663A(a)(2) |
||||||||||||||||||||||||||||||||||||||||
21 U.S.C. § 853(q) ("The court, when sentencing a defendant convicted of an offense under this subchapter or subchapter II of this chapter involving the manufacture, the possession, or the possession with intent to distribute, of amphetamine or methamphetamine, shall—(1) order restitution as provided in §§3612 and 3664 of Title 18; (2) order the defendant to reimburse the United States, the State or local government concerned, or both the United States and the State or local government concerned for the costs incurred by the United States or the State or local government concerned, as the case may be, for the cleanup associated with the manufacture of amphetamine or methamphetamine by the defendant or on premises or in property that the defendant owns, resides, or does business in; and (3) order restitution to any person injured as a result of the offense as provided in §3663A of Title 18.") |
||||||||||||||||||||||||||||||||||||||||
United States v. Gramling, 417 F.3d 891, 895-96 ( |
||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 43(c) ("An order of restitution under |
||||||||||||||||||||||||||||||||||||||||
Id. §§ 3663(b)(2)(A), 3663A((b)(2)(A) ("[A]n amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. §§ 3663(b)(2)(C), 3663A(b)(2)(C); United States v. |
||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
Id. §§ 3663(b)(3), 3663A(b)(3) ("... [A]n amount |
||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
136. |
|
|||||||||||||||||||||||||||||||||||||||
Messina, 806 F.3d at 67-8; United States v. Cienfuegos, 462 F.3d 1160, 1163- |
||||||||||||||||||||||||||||||||||||||||
The crimes in chapters 109A, 110 and 110A of Title 18 consist of those proscribed in 18 U.S.C. §§ 2241 (aggravated sexual abuse), 2242 (sexual abuse), 2243 (sexual abuse of a minor or ward), 2244 (abusive sexual contact), 2251 (sexual exploitation of children), 2251A (selling or buying children), 2252 (material involving sexual exploitation of children), 2252A (child pornography), 2252B (misleading |
||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. §§ 2248(c), 2259(c), 2264(c) ("For purposes of this section, the term 'victim' means the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim's estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. §§ 2248(b)(3), 2259(b)(3), 2264(b)(3) ("For purposes of this subsection, the term 'full amount of the victim's losses' includes any costs incurred by the victim for—(A) medical services relating to physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation; (C) necessary transportation, temporary housing, and child care expenses; (D) lost income; (E) attorneys' fees, plus any costs incurred in obtaining a civil protection order; and (F) any other losses suffered by the victim as a proximate result of the offense | ||||||||||||||||||||||||||||||||||||||||
142. |
| |||||||||||||||||||||||||||||||||||||||
143. |
| |||||||||||||||||||||||||||||||||||||||
144. |
|
|||||||||||||||||||||||||||||||||||||||
United States v. Johnson | ||||||||||||||||||||||||||||||||||||||||
146. |
The restitution order must "in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense," 18 U.S.C. 3663(b)(4), 3663A(b)(4). |
|||||||||||||||||||||||||||||||||||||||
147. |
United States v. Gordon, 393 F.3d 1044, 1057 (9th Cir. 2004); United States v. Stennis-Williams, 557 F.3d 927, 930 (8th Cir. 2009)("[P]rivately incurred investigative costs constitute foreseeable losses that are directly caused by the defendant's fraudulent conduct"); United States v. Hosking, 567 F.3d 329, 332 (7th Cir. 2009)("The bank's investigation was clearly an important part of the 'investigation ... of the offense' in this case. It led to the determination of the actual amount embezzled and therefore the costs of that investigation may be included in the restitution award under §3663A(b)(4)"); United States v. Elson, 577 F.3d 713, 727-28 (6th Cir. 2009)("Based on the reasoning set forth in Stennis-Williams [and quoted above], Bourke's attorney fees are recoverable under §3663A(b)(4). Like the estate in Stennis-Williams, Bourke sustained significant costs and fees in discovering and investigating the numerous layers of shill corporations and nominees related to Schultz's fraud. While Bourke did not investigate the fraud as part of the government's prosecution of Elson and his co-conspirators, Bourke's costs and fees constitute foreseeable losses that were directly caused by the conspiracy's act of concealing Schultz's assets from creditors such as Bourke"). |
|||||||||||||||||||||||||||||||||||||||
148. |
United States v. Papagno, 639 F.3d 1093, 1095 (D.C. Cir. 2011); see also United States v. Maynard, 743 F.3d 374, 381 (2d Cir. 2014)("A bank's production of wanted posters after a robbery occurred is ... gratuitous.... [T]he police had an ongoing investigation and did not seek the bank's cooperation in postering the neighborhood ... "). |
|||||||||||||||||||||||||||||||||||||||
149. |
United States v. Bahel, 662 F.3d 610, 647-48 (2d Cir. 2011)(U.N. expenses paid a law firm to investigate an employee's kickback scheme); United States v. Phillips, 477 F.3d 215, 224 (5th Cir. 2007)(costs incurred by the University of Texas in conducting a computer damage and systems evaluation and contacting individuals whose biographical information and Social Security numbers were stolen from the University's computer system); United States v. Gordon, 393 F.3d 1044, 1056-57 (9th Cir. 2004)(cost of company investigation into computer records of an embezzling employee). |
|||||||||||||||||||||||||||||||||||||||
150. |
United States v. Phillips, 367 F.3d 846, 863 (9th Cir. 2004)(in affirming an order to pay restitution to the Environmental Protection Agency for investigation and cleanup costs relating to the offense for which the defendant was convicted, the court noted, "[to] determine whether the Government may receive restitution, we must explore the dividing line between criminal investigation costs (which are not recoverable) and other investigation costs (which are recoverable)"); United States v. Haileselassie, 668 F.3d 1033, 1037 (8th Cir. 2012), citing in accord, United States v. Salcedo-Lopez, 907 F.2d 97, 98 (9th Cir. 1990), and United States v. Meza, 137 F.3d 533, 539 (7th Cir. 1998)("It is well established that the costs [to governmental entities] of investigating and prosecuting an offense are not direct losses for which restitution may be ordered"). |
|||||||||||||||||||||||||||||||||||||||
151. |
United States v. Malpeso, 126 F.3d 92, 94-5 (2d Cir. 1997). |
|||||||||||||||||||||||||||||||||||||||
152. |
Moore v. United States, 178 F.3d 994, 1001 (8th Cir. 1999). |
|||||||||||||||||||||||||||||||||||||||
153. |
United States v. Cummings, 281 F.3d 1046, 1052-53 (9th Cir. 2002). |
|||||||||||||||||||||||||||||||||||||||
154. |
|
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(a) ("For orders of restitution under this title, the court shall order the probation officer to obtain and include in its presentence report, or in a separate report, as the court may direct, information sufficient for the court to exercise its discretion in fashioning a restitution order. The report shall include, to the extent practicable, a complete accounting of the losses to each victim, any restitution owed pursuant to a plea agreement, and information relating to the economic circumstances of each defendant. If the number or identity of victims cannot be reasonably ascertained, or other circumstances exist that make this requirement clearly impracticable, the probation officer shall so inform the court."); Dolan v. |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(d)(1) ("Upon the request of the probation officer, but not later than 60 days prior to the date initially set for sentencing, the attorney for the Government, after consulting, to the extent practicable, with all identified victims, shall promptly provide the probation officer with a listing of the amounts subject to restitution."); United States v. Stone, 866 F.3d 219, 225 (4th Cir. 2017); Zaic, 744 F.3d at 1042 |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(d)(2) ("The probation officer shall, prior to submitting the presentence report under subsection (a), to the extent practicable—(A) provide notice to all identified victims of—(i) the offense or offenses of which the defendant was convicted; (ii) the amounts subject to restitution submitted to the probation officer; (iii) the opportunity of the victim to submit information to the probation officer concerning the amount of the victim's losses; (iv) the scheduled date, time, and place of the sentencing hearing; (v) the availability of a lien in favor of the victim pursuant to subsection (m)(1)(B); and (vi) the opportunity of the victim to file with the probation officer a separate affidavit relating to the amount of the victim's losses subject to restitution; and (B) provide the victim with an affidavit form to submit pursuant to subparagraph (A)(vi)."). United States v. Stoerr, 695 F.3d 271, 279 (3d Cir. 2012) |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(d)(3) ("Each defendant shall prepare and file with the probation officer an affidavit fully describing the financial resources of the defendant, including a complete listing of all assets owned or controlled by the defendant as of the date on which the defendant was arrested, the financial needs and earning ability of the defendant and the defendant's dependents, and such other information that the court requires relating to such other factors as the court deems appropriate."); United States v. |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(e); United States v. |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(e); |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(e); | ||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(d)(4); United States v. |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(f)(1)(A) Nevertheless, victims are not entitled to more than full compensation; restitution may not be ordered for amounts in excess of the victim losses, United States v. Chemical & Metal Industries, Inc., 677 F.3d 750, 752 (5th Cir. 2012)("The general rule is that the statute does not authorize a restitution order that exceeds the victim's losses. As one court explained, 'an order of restitution that exceeds the victim's actual losses or damages is an illegal sentence'"), quoting, United States v. Middlebrook, 553 F.3d 572, 579 (7th Cir. 2009); see also United States v. Rizk, 660 F.3d 1125, 1137 (9th Cir. 2011); United States v. Frazier, 651 F.3d 899, 904 (8th Cir. 2011); United States v. Pescatore, 637 F.3d 128, 139 (2d Cir. 2011). | ||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(f)(2); United States v. |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(f)(3)(A); |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(f)(4); Martinez, 812 F.3d at 1206; United States v. Simmonds, 235 F.3d 826, 832 (3d Cir. 2000) (since restitution may take the form of replacement, a district court may validly consider replacement costs in assessing a victim's losses); but see, United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 53-6 ( |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(f)(3)(B); |
||||||||||||||||||||||||||||||||||||||||
Ward v. Chavez, 678 F.3d 1042, 1049-50 ( | ||||||||||||||||||||||||||||||||||||||||
169. |
|
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(j)(2); United States v. Smathers, 879 F.3d 453, 459-60 (2d Cir. 2018) United States v. Kovall, 857 F.3d 1060, 1072 (9th Cir. 2017 | ||||||||||||||||||||||||||||||||||||||||
171. |
|
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(d)(5). |
||||||||||||||||||||||||||||||||||||||||
|
||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
165.
|
|
560 U.S. 605, 608 (2010); United States v. Gurrola, 898 F.3d 524, 542 (5th Cir. 2018). United States v. Thunderhawk, 860 F.3d 633, 635-36 (8th Cir. 2017); United States v. Ferguson, 831 F.3d 850, 853 n.1 (7th Cir. 2016); see also United States v. Pleitez, 876 F.3d 150, 159 (5th Cir. 2017) (Whenever it occurs, "the final determination of a mandatory restitution award under § 3664(d)(5) constitutes a critical stage during which a defendant is entitled to the assistance of counsel."). 166.
|
|
18 U.S.C. § 3664(g); United States v. Edwards, 595 F.3d 1004, 1013 (9th Cir. 2010). 167.
|
United States v. Hawkins, 858 F.3d 1273, 1276-81 (9th Cir. 2017) (disagreeing with Speakman and Pawlinski as to whether the district court might redirect the defendant's restitution obligation to the benefit of the Crime Victims Fund); United States v. Speakman, 594 F.3d 1165, 1174-78 (10th Cir. 2010) (holding that |
Dolan v. United States, 560 U.S. at 608; see also United States v. Fumo, 655 F.3d 288, 321-22 (3d Cir. 2011), citing Dolan ("[O]ther circuits have concluded, based on the statute's purpose in protecting victims, that the 90-day 'deadline' for determining the victim's losses does not bar a court from ordering restitution even after 90 days as long as there is no substantial prejudice to the defendant. This holding has since been affirmed by the Supreme Court"). |
||||||||||||||||||||||||||||||||||
176. |
18 U.S.C. 3664(g); United States v. Edwards, 595 F.3d 1004, 1013 (9th Cir. 2010). |
|||||||||||||||||||||||||||||||||||||||
177. |
|
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(h) ("If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant."); United States v. |
||||||||||||||||||||||||||||||||||||||||
United States v. |
||||||||||||||||||||||||||||||||||||||||
In re Amy Unknown, 701 F.3d 749, 770 ( |
||||||||||||||||||||||||||||||||||||||||
Paroline |
||||||||||||||||||||||||||||||||||||||||
Paroline |
||||||||||||||||||||||||||||||||||||||||
Id. at |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(i) ("... In any case in which the United States is a victim, the court shall ensure that all other victims receive full restitution before the United States receives any restitution."); United States v. |
||||||||||||||||||||||||||||||||||||||||
Mei Juan Zhang, 789 F.3d at 216-17; United States v. |
||||||||||||||||||||||||||||||||||||||||
United States v. |
||||||||||||||||||||||||||||||||||||||||
United States v. |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(j)(1); United States v. |
||||||||||||||||||||||||||||||||||||||||
18 U.S.C. 3664(j)(2). The | ||||||||||||||||||||||||||||||||||||||||
190. |
Section 3664 deals specifically with one change in the defendant's financial circumstances by requiring that he apply any windfall he receives while in prison to his obligation to make restitution, 18 U.S.C. 3664(n) ("If a person obligated to provide restitution, or pay a fine, receives substantial resources from any source, including inheritance, settlement, or other judgment, during a period of incarceration, such person shall be required to apply the value of such resources to any restitution or fine still owed.") Simpson-El, 856 F.3d at 1300 ("Because Mr. Simpson-El received the settlement funds when he was no longer a prisoner, § 3664(n) did not apply."). |
|||||||||||||||||||||||||||||||||||||||
United States v. Vanhorn, 399 F.3d 884, 886 ( |
||||||||||||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||||||||||||
193. |
McGere v. Martinez, 627 F.3d 933, 937 (3d Cir. 2010), citing in accord, United States v. Diggs, 578 F.3d 318, 320 (5th Cir. 2009); and Matheny v. Morrison, 307 F.3d 709, 711-12 (8th Cir. 2002). |
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3664(m)(1)(A) | ||||||||||||||||||||||||||||||||||||||||
195. |
18 U.S.C. 3583(e)(3), 3565(a); United States v. Melton, 666 F.3d 513, 517 (8th Cir. 2012)("A defendant's failure to put forth a good faith effort to seek employment to pay a restitution judgment is a valid ground for revoking a supervised release"). |
|||||||||||||||||||||||||||||||||||||||
196. |
18 U.S.C. 3613(c). |
|||||||||||||||||||||||||||||||||||||||
197. |
United States v. Witham, 648 F.3d 40, 41 (1st Cir. 2011)("[T]he MVRA authorizes the United States to invoke FDCPA procedures to enforce all restitution orders, including those in favor of private-party victims"); United States v. Hosking, 567 F.3d 329, 334-35 (7th Cir. 2009)("The MVRA authorizes the government to enforce a restitution order through a series of specific means including 'all other available and reasonable means.' 18 U.S.C. §3664(m))(1)(A)(ii). And again, §3613(a) provides that the United States may enforce a judgment against 'all property or rights to property of the person fined,' 'notwithstanding any other Federal law.'.... Moreover, §3613 treats a restitution order under the MVRA like a tax liability. This means that any property that the IRS can reach to satisfy a tax lien, a sentencing court can also reach in a restitution order. See 18 U.S.C. §3613(c); United States v. Irving, 452 F.3d 110, 126 (2d Cir. 2006)"); United States v. Novak, 476 F.3d 1041, 1044 (9th Cir. 2007)(For enforcement of restitution orders, 18 U.S.C. 3664(m)(1)(A)(i) and 3613(f) authorize recourse to the fine collection authority of §3613. For collection of unpaid fines, 18 U.S.C. 3613(a) authorizes the use of the practices and procedures available for enforcement of a civil judgment. The Federal Debt Collection Procedure Act is available for such purposes, 28 U.S.C. 3001). |
|||||||||||||||||||||||||||||||||||||||
198. | United States v. Parker, 927 F.3d 374, 380 (5th Cir. 2019) (internal citations largely omitted) ("Under the Federal Debt Collection Procedures Act of 1990, the Government can collect on judgments in its favor through, among other things, a writ of execution. The writ of execution allows a United States marshal to 'levy' the defendant's property to satisfy the judgment. Once levied the property becomes the Government's to sell to satisfy the defendant's judgment. Every writ of execution directs the marshal to not only levy but also to sell the property, subject to a few relevant exceptions. See 28 U.S.C. § 3203(c)(2)(B). The marshal may continue to use the same writ of execution to levy property until the judgment is satisfied."); United States v. Scully, 882 F.3d 549, 554 (5th Cir. 2018) (some internal citations omitted) ("[T]he government may enforce restitution orders in the same way that it enforces fines and by any other available means. Moreover, under 18 U.S.C. § 3613(a), the government may collect criminal fines and restitution according to the practices and procedures for enforcing a civil judgment under federal or state law. In practice, this means that the government may use the garnishment provisions of the Federal Debt Collection Procedures Act to collect a restitution obligation imposed by a judgment of conviction."); United States v. Cohan, 798 F.3d 84, 89 (2d Cir. 2015); United States v. Carter, 742 F.3d 440, 445 (9th Cir. 2014). United States v. Witham, 648 F.3d 40, 41 (1st Cir. 2011); United States v. Hosking, 567 F.3d 329, 334-35 (7th Cir. 2009). 18 U.S.C. § 3613(c). |
|||||||||||||||||||||||||||||||||||||||
18 U.S.C. § 3771(a)(6), (d)(3). Federal Insurance Co. v. United States, 882 F.3d 348, 361-62 (2d Cir. 2018); Kovall, 857 F.3d at 1069-70. Congress amended Section 3771(d)(3) in 2015 to provide that "… In deciding such application [for a writ of mandamus], the court of appeals shall apply ordinary standards of appellate review …"
18 U.S.C. §§ 3583(e)(3), 3565(a); United States v. Marino, 833 F.3d 1, 3-4 (1st Cir. 2016); cf. United States v. Colosuonno, 697 F.3d 164, 183 (2d Cir. 2012). 18 U.S.C. § 3664(l); Doe v. Hesketh, 828 F.3d 159, 174 n.19 (3d Cir. 2016). | ||||||||||||||||||||||||||||||||||||||||
200. |
18 U.S.C. 3664(l). |
|||||||||||||||||||||||||||||||||||||||
201. |
| |||||||||||||||||||||||||||||||||||||||
202. |
|
|||||||||||||||||||||||||||||||||||||||
United States v. Stoerr, 695 F.3d 271, 278 (3d Cir. 2012). |
||||||||||||||||||||||||||||||||||||||||
Durham v. United States, 401 U.S. 481, 48-82 (1971) ("The status of abatement caused by death on direct review has recently been discussed by the Court of Appeals for the Eighth Circuit in Crooker v. United States, 325 F.2d 318. In reviewing the case that court concluded that the lower federal courts are unanimous on the rule to be applied: death pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.... We believe they have adopted the correct rule."). The Supreme Court later cryptically called the vitality of Durham into question when it announced that, "The Court is advised that the petitioner died at New Bern, N.C., on November 14, 1975. The petition for certiorari is therefore dismissed. To the extent that Durham v. United States, 401 U.S. 481 (1971), may be inconsistent with this ruling, Durham is overruled |
||||||||||||||||||||||||||||||||||||||||
United States v. Tull v. United States, 481 U.S. 412, 417-18 (1987). United States v. Palma, 760 F.2d 475, 479 (3d Cir. 1985); United States v. Keith, 754 F.2d 1388, 1392 (9th Cir. 1985); United States v. Watchman, 749 F.2d 616, 617 (10th Cir. 1984); United States v. Brown, 744 F.2d 905, 910-11 (2d Cir. 1984); United States v. Satterfield, 743 F.2d 827, 836-37 (11th Cir. 1984); United States v. Florence, 741 F.2d 1066, 1068 (8th Cir. 1984). United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006)(ex post facto clause applies); accord United States v. Grice, 319 F.3d 1174, 1177 (9th Cir. 2003); United States v. Schulte, 264 F.3d 656, 662 (6th Cir. 2001); United States v. Siegel, 153 F.3d 1256, 1260 (11th Cir. 1998); United States v. Bapack, 129 F.3d 1320, 1327 n.13 (D.C. Cir. 1997); United States v. Williams, 128 F.3d 1239, 1241 (8th Cir. 1997); United States v. Thompson, 113 F.3d 13, 15, n.1 (2d Cir. 1997); contra United States v. Nichols, 169 F.3d 1255, 1279-280 (10th Cir. 1999); United States v. Newman, 144 F.3d 531, 538 (7th Cir. 1998). See also United States v. Gupta, 572 F.3d 878, 891 (11th Cir. 2009) ("Although the Mandatory Act ordinarily does not apply to offenses that occurred before it became effective ... the Act applies to conspiratorial offenses that began before that date but concluded after it."); United States v. Williams, 612 F.3d 500, 511 (6th Cir. 2010) ("[T]he MVRA applies to crimes that occurred prior to and continued past the effective date of the MVRA ... this application does not violate Ex Post Facto Clause."). United States v. Newell, 658 F.3d 1, 35 (1st Cir. 2011) (citing United States v. Lessner, 498 F.3d 185, 205-06 (3d Cir. 2007); United States v. Newsome, 322 F.3d 328, 342 (4th Cir. 2003); United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir. 1998)). Newell, 658 F.3d at 35. 572 U.S. 434, 455-56 (internal citations and quotation marks omitted) ("The reality is that the victim's suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment. To be sure, this Court has said that the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government. But while restitution under § 2259 is paid to a victim, it is imposed by the Government at the culmination of a criminal proceeding and requires conviction of an underlying crime. Thus, despite the differences between restitution and a traditional fine, restitution still implicates the prosecutorial powers of government. The primary goal of restitution is remedial or compensatory, but it also serves punitive purposes. That may be sufficient to bring it within the purview of the Excessive Fines Clause. And there is a real question whether holding a single possessor liable for millions of dollars in losses collectively caused by thousands of independent actors might be excessive and disproportionate in these circumstances."). 530 U.S. 466 (2000). 543 U.S. 220 (2005). Id. at 244; see also Apprendi, 530 U.S. at 490. United States v. Alvarez, 835 F.3d 1180, 1185 (9th Cir. 2016); United States v. Sawyer, 825 F.3d 287, 297 (6th Cir. 2016); United States v. Burns, 800 F.3d 1258, 1261 (10th Cir. 2015); United States v. Bengis, 783 F.3d 407, 411-13 (2d Cir. 2015). |