§620 Pre-Guidelines Restitution Cases
1st Circuit does not require express findings on defendant’s ability to pay restitution. (620) Defendant was convicted of bank fraud. He argued that the court did not make adequate findings on his ability to pay restitution. The First Circuit held that the statutory obligation under 18 U.S.C. § 3664(a) to consider a defendant’s ability to pay restitution does not require express findings on the record. The statute is satisfied where, as here, the court relies on a presentence report detailing the defendant’s financial condition. The statute also does not require an express finding that a defendant can presently pay restitution. The prospect of future income is sufficient. The district court did not improperly delegate authority to the probation officer to set a payment schedule. The court intended that defendant be supervised by the probation officer to ensure good faith compliance. If any question arises as to whether defendant is complying, it will be resolved by the district court. U.S. v. Lilly, 80 F.3d 24 (1st Cir. 1996).
3rd Circuit remands pre-guidelines case where district court failed to adequately state basis for restitution. (620) Defendant was originally convicted of embezzlement and making false statements in bank records in connection with his activities as vice president in the trust division of a bank. Defendant’s embezzlement convictions were overturned on appeal because the government failed to prove certain essential elements of the crime. After defendant was resentenced, he argued that since his embezzlement convictions had been reversed, it was improper for the district court to order restitution without connecting it to the false statement offenses for which he remained convicted. The 3rd Circuit agreed that the district court could not impose restitution based on the overturned embezzlement convictions, and that the district court had failed to properly state the basis for the restitution award. The district court failed to identify who the defendant victimized or to explain how the restitution was related to any loss caused by the conduct for which defendant remained convicted. U.S. v. Furst, 918 F.2d 400 (3rd Cir. 1990).
5th Circuit holds that RTC’s letter provided adequate basis for restitution order. (620) Defendant was convicted of bank fraud, wire fraud and conspiracy to defraud the U.S. He claimed there was an insufficient factual basis for the restitution imposed on the bank fraud count, which was a pre‑guidelines offense. The Fifth Circuit held that the restitution order was properly based on a letter from the RTC outlining the losses from defendant’s bank fraud. The PSR originally estimated the loss to be about $43 million. The RTC’s subsequent letter to the probation officer demonstrated losses of more than $22 million in principal and $21 million in accrued interest, for a total loss of more than $43 million. The district court ordered restitution in this amount. U.S. v. Aubin, 87 F.3d 141 (5th Cir. 1996).
5th Circuit upholds full restitution order where defendant failed to provide court with personal financial statement. (620) In a pre-guidelines case, the 5th Circuit found no abuse of discretion in the district court’s failure to articulate its findings regarding restitution or in its calculation of the amount of restitution. Specific findings regarding restitution are not required if the record is sufficient for the appellate court to conduct its mandated review. Here, the record provided an adequate basis for the decision to impose full restitution. There was no abuse of discretion in the district court’s adoption of the presentence report’s finding that the total loss caused by defendant’s fraud was $12,120,244. The court had no choice but to impose full restitution because under 18 U.S.C. section 3664, the burden of demonstrating a defendant’s financial resources rests with the defendant. Here, defendant refused to provide the court with a personal financial statement. U.S. v. St. Gelais, 952 F.2d 90 (5th Cir. 1992).
6th Circuit remands pre-guidelines restitution case. (620) As a condition of probation, defendant was ordered to make restitution in the amount of $318,000 to the SBA. The 6th Circuit found that restitution to the SBA was not authorized by the tax fraud statute under which defendant was convicted. However, the district court had stated that if its sentence should be reversed because the probation and restitution had not been ordered in connection with the SBA count, then on remand the prison sentence would be switched to the tax offense and the probation and restitution would be switched to the SBA offense. The 6th Circuit found that this procedure was not an unconstitutional enhancement of defendant’s sentence. However, the order of restitution to the SBA suffered from other defects. The district court had found that defendant was bankrupt when he lied to the SBA, and therefore the SBA could not have received from defendant an amount close to $318,000. Therefore, the case was remanded for the district court to properly determine the amount of the SBA’s loss caused by the defendant’s fraud. U.S. v. Joseph, 914 F.2d 780 (6th Cir. 1990).
6th Circuit upholds $800,000 restitution order. (620) In a pre-guidelines case, defendants were convicted of various counts of conspiracy and bribery, and each was ordered to pay $800,000 in restitution. Defendants argued that their financial statements showed a negative net worth, and therefore the large restitution order was an abuse of the district court’s discretion. One defendant’s financial statement showed assets in excess of 1.9 million dollars, while part of the liabilities listed were liabilities that the defendant owed to the victimized bank. The other defendant’s joint financial statement with his wife showed assets in excess of $700,000 and a net worth over $400,000, although his individual financial statement showed a negative net worth of 3.5 million dollars. The 6th Circuit found that the district court had properly considered the factors for restitution, and did not abuse its discretion in ordering the restitution. U.S. v. Frost, 914 F.2d 756 (6th Cir. 1990).
7th Circuit upholds consideration of relative culpability in determining restitution. (620) Defendant argued the district court failed to adequately consider his financial worth in making a restitution award. The 7th Circuit found the record showed otherwise. The trial judge stated that although defendant had a net worth which would enable him to pay off the entire loss amount, based on his degree of culpability, he should be responsible for only 20 percent. Thus, his restitution was set at $58,700. The relative culpability of defendant is an appropriate consideration under 18 U.S.C. § 3663(a)(5). U.S. v. Loscalzo, 18 F.3d 374 7th Cir. 994).
7th Circuit upholds $4 million restitution. (620) Defendant argued that the court’s $4 million restitution order was invalid because the court failed to consider his inability to pay restitution and neglected to resolve disputed findings as to the calculation of the exact amount of restitution owed. The 7th Circuit affirmed. The district court considered the mandatory factors of financial resources, needs, and earning ability. The court adopted the unchallenged PSR, which identified defendant’s financial condition, employment skills, education level and family and marital ties. The government introduced an exhibit that compiled the financial losses suffered by the defendant’s victims. Defendant never objected to the exhibit and presented no evidence supporting his more conservative estimate of loss. U.S. v. Simpson, 995 F.2d 109 (7th Cir. 1993).
7th Circuit reverses pre-guidelines restitution order for acquitted counts. (620) In a pre-guidelines case, defendant was charged with five counts of taking bank funds with intent to steal them and with conspiracy to defraud a federally insured bank. He was convicted of conspiracy and three of the bank theft charges, and acquitted of two of the bank theft charges. The 7th Circuit found it was error to order defendant to pay restitution for all five fraudulent loan transactions when he had been acquitted of two of the counts. The court rejected the government’s contention that all five transactions were part of a unitary scheme and that because defendant was convicted of conspiracy, he could be ordered to pay restitution on the full amount of loss caused by the overall scheme. The jury’s acquittal of the two bank theft counts must be taken as a judgment that the conspiracy did not include the acts charged in the acquitted counts. U.S. v. Kane, 944 F.2d 1406 (7th Cir. 1991).
9th Circuit finds district court properly calculated restitution in “related provider” mail fraud. (620) Defendant was convicted of various mail fraud and tax offenses based on his violation of the “related-party” regulations in 42 C.F.R. §413.17. The regulation limits reimbursement to providers from related suppliers. Defendant argued the district court erred in ordering restitution for excess rent reimbursement he received from the provider. The Ninth Circuit found the restitution order was proper under the Victim Witness Protection Act, the amount was supported by evidence and was based only on the underlying convictions. In addition, a “related provider” is limited to the supplier’s actual costs even though the charged rent is fair. U.S. v. Woodley, 9 F.3d 774 (9th Cir. 1993).
9th Circuit upholds state court probation revocation based on nonpayment of restitution due to bankruptcy. (620) Plaintiff was convicted in state court of rape. Pursuant to a plea agreement, the court departed from Oregon’s guidelines and ordered a $20,000 compensatory fine to be paid to the victim. Afterwards, plaintiff filed bankruptcy and the bankruptcy court arranged for payments to creditors of 20% of the debt. The state court found plaintiff’s actions violated his probation and ordered him committed for 36 months. Plaintiff then filed an amended plan in bankruptcy court arranging for full payment of the amount under the probation order. Pursuant to the automatic stay provisions of 11 U.S.C. section 362(a), the bankruptcy and federal district courts found the revocation order void. The 9th Circuit reversed, concluding the revocation was not a collection effort and was not subject to the bankruptcy automatic stay provisions. In addition, resentencing was a proper effort by the state court to fashion a remedy to serve the purposes of probation. Hucke v. State of Or., 992 F.2d 950 (9th Cir. 1993), overruled on other grounds by In re Gruntz, 202 F.3d 1074 (9th Cir. 2000).
9th Circuit upholds restitution order based on conduct constituting the offense of conviction. (620) Defendant pled guilty to one count of making false claims for tax refunds and one count of mail fraud based on his submission of tax returns for dead people and receipt of money at fictitious mail box addresses. In ordering restitution on the mail fraud count, the district court calculated the sum of all fraudulent tax returns sent to defendant via the mailbox that was the subject of that count, even though 5 of the 17 checks were the subject of other substantive counts. The restitution order was proper. The plea agreement made defendant aware of the potential for restitution, the IRS was a victim of the offense within the meaning of the Victim Witness Protection Act and all 17 checks were within the conduct constituting the court of conviction. In the Ninth Circuit, inability of a defendant to pay a restitution award is not a bar to imposing restitution because the defendant’s future financial status could change. U.S. v. Jackson, 986 F.2d 312 (9th Cir. 1993).
9th Circuit rules interest cannot be assessed on older restitution orders. (620) The district court held that under the Victim and Witness Protection Act, defendant could be required to pay interest and penalties on restitution payments past due. The 9th Circuit reversed, because defendant’s offenses took place from June 1982 to July 1983, before the effective date of the statute which provided for the imposition of interest and penalties. U.S. v. Angelica, 951 F.2d 1007 (9th Cir. 1991).
9th Circuit reverses order for corporate defendants to make payments to drug clinics. (620) Four soft drink companies were convicted of price fixing. As a condition of probation they were ordered to pay $660,000 into a fund to be distributed to four substance-abuse organizations run by local governments with local, state and federal tax dollars. The district court justified the payments as “restitution to the community.” The government appealed, and the 9th Circuit reversed and remanded for resentencing. The court held that the Probation Act, 18 U.S.C. § 3651 (repealed in 1984), did not authorize a monetary payment to third parties. The payments could not be justified as restitution because the price fixing crime and the drug and substance abuse programs “are in no way related.” The court cautioned that “the judiciary should not take upon itself the role of selecting beneficiaries of defendants’ crimes.” U.S. v. Blue Mountain Bottling Company, 929 F.2d 526 (9th Cir. 1991).
9th Circuit says death of defendant does not end restitution obligation. (620) Defendant argued that the portion of his sentence stating that on his death any unpaid balance of his restitution payments were due and payable violated 18 U.S.C. § 3565(h), which has since been repealed. Before its repeal, § 3565(h) provided that an “obligation to pay a fine or penalty ceases upon the death of the defendant.” Judges Choy, Farris and Thompson rejected the argument that “fines and penalties” was intended to include restitution. Section 3565 was concerned with the collection of fines or penalties by the government. “Nowhere does it purport to limit restitution payments.” U.S. v. Cloud, 921 F.2d 225 (9th Cir. 1990).
9th Circuit holds that ordering restitution as part of contempt sentence was proper. (620) The 9th Circuit noted that a sentence for contempt is not an appropriate vehicle for enhancement of the plaintiff’s recovery in an underlying civil action. Here, however, “ordering restitution of the funds [defendant] wrongfully withdrew from frozen accounts was justified to restore the status quo and to preserve assets to pay any adverse judgements in the underlying action.” FTC v. American Nat’l Cellular, 868 F.2d 315 (9th Cir. 1989).
9th Circuit holds that restitution under the Federal Probation Act must relate to offense for which the defendant was convicted. (620) Restitution awarded under the Federal Probation Act must relate to losses sustained by the victim as a result of the offense of which the defendant was actually convicted. The amount of restitution must be set forth in the indictment or the plea agreement or be judicially established. The 9th Circuit held that the trial court was correct in ruling that it could not award belated restitution here. Nor did the court meet the requirements for awarding restitution under the Victim and Witness Protection Act. U.S. v. Weir, 861 F.2d 542 (9th Cir. 1988).
9th Circuit upholds restitution order except as to value of diamonds. (620) Defendant used high-pressure salesmen to defraud victims out of diamonds, cash and investment securities. The 9th Circuit held that the trial court properly ordered restitution to all victims, even those that were not named in the indictment. The trial court also properly disregarded the value of the inexpensive garnets that were unwanted by the victims and were substituted for their diamonds as part of the fraudulent scheme. However, the trial court erred in basing the amount of restitution on the initial purchase price of the diamonds. The diamonds may have decreased in value, and 18 U.S.C. § 3579(b)(1)(B) requires that restitution be based on value as of the date of loss, or the date of sentencing. U.S. v. Angelica, 859 F.2d 1390 (9th Cir. 1988).
9th Circuit holds that restitution statute applies to losses even before statute became effective if fraudulent scheme extends beyond that date. (620) The Victim and Witness Protection Act, 18 U.S.C. sections 3579-3580, became effective January 1, 1983. Acknowledging that the circuits are split on the issue, Judges Fletcher, Hug and Farris held that the Act applies to all losses from a fraudulent scheme, even those that occurred before the effective date of the Act, as long as the scheme continued beyond that date. U.S. v. Angelica, 859 F.2d 1390 (9th Cir. 1988).
9th Circuit rules that forfeiture of money obtained by fraud and restitution to victims in the same amount, plus 10 year jail sentence, did not violate Eighth Amendment. (620) The indictment alleged that defendant defrauded insurance companies out of $2.4 million. The jury returned a special verdict of forfeiture of almost $2 million. The judge ordered almost $2 million forfeited to the government, and also ordered defendant to make restitution to the victim in the same amount. Defendant argued that this was an “excessive fine” in violation of the Eighth Amendment, and in combination with his 10 year sentence, constituted cruel and unusual punishment. The 9th Circuit found no Eighth Amendment violation. U.S v. Feldman, 853 F.2d 648 (9th Cir. 1988).
9th Circuit holds that court may set maximum amount of restitution and let probation department set payment schedule and reduce amount if appropriate. (620) For offenses committed after January 1, 1983, 18 U.S.C. § 3579 (a)(1) permits a court “to order payment of restitution independently of probation.” The 9th Circuit held that the district court need only set the maximum amount of probation, and may delegate to the probation department the authority to set the payment schedule and reduce, if appropriate, the amount of restitution required. U.S. v. Signori, 844 F.2d 635 (9th Cir. 1988).
9th Circuit holds that damages in defendant’s sentencing memorandum cannot be used to establish restitution absent his agreement. (620) Amending their opinion in U.S. v. Whitney, 785 F.2d 824 (9th Cir. 1986), the 9th Circuit noted that there was no showing that the defendant submitted the figures in his sentencing memorandum with the knowledge or intent that they would be used as the basis for a restitution order. They reiterated their holding that absent any other agreement, the amount of restitution must be specified in the indictment counts to which defendant pleads, or in the plea agreement itself. The order of restitution was reversed. U.S. v. Whitney, 838 F.2d 404 (9th Cir. 1988).
9th Circuit holds that insurance company is a “victim” for restitution purposes. (620) Defendant participated in the theft of money from a safe stolen from the B & W Quick Store. The Iowa Insurance Co. indemnified the Store for the loss, and defendant was ordered to pay restitution to the insurance company. The 9th Circuit held that an insurance company is a “victim” under 18 U.S.C. § 3579(e) to whom restitution may properly be ordered. However, since the order may have been entered on the assumption that defendant would be placed on probation, the case was remanded to determine whether the timing of payments should be modified. U.S. v. Youpee, 836 F.2d 1181 (9th Cir. 1988).
9th Circuit holds restitution order proper despite acquittal on related charges. (620) Defendant was ordered to pay $40,000 restitution based upon the amount alleged in one of the bankruptcy fraud counts of which he was convicted. He argued that this was improper because the $40,000 loss was dependent on the testimony of a witness whom the jury must have disbelieved because they acquitted defendant of the mail fraud and wire fraud charges relating to that witness’ transactions. The 9th Circuit rejected the argument, noting that there were any number of other reasons for the acquittals on the other counts. U.S. v. Weinstein, 834 F.2d 1454 (9th Cir. 1987).
9th Circuit affirms order to pay restitution to parties not named in counts for which probation was ordered. (620) Although defendant was tried and convicted only on the Baird wire fraud counts he was ordered to pay restitution on the Vanden Stock counts as well. The 9th Circuit held that this was proper under 18 U.S.C. § 3651 because the entire scheme to defraud Baird and the Vanden Stock family of 3.6 million dollars was alleged in the indictment counts for which defendant was convicted. Moreover, since defendant had received 17.6 percent of the fraudulent proceeds, ordering him to pay 17.6 percent of the restitution was not an abuse of discretion. U.S. v. Van Cauwenberghe, 827 F.2d 424 (9th Cir. 1987).
9th Circuit holds that failure to advise defendant that restitution might be imposed did not invalidate guilty plea. (620) The 9th Circuit held that even though the trial court should have advised defendant that restitution might be ordered, the failure to do so here did not prejudice the defendant. The presentence report recommended restitution, and defendant said he had discussed the report with his attorney. Thereafter, he was given an opportunity to withdraw his plea, but persisted in pleading guilty. At sentencing, he said to the trial judge, “I pray that you will give me an opportunity to make up the losses for the investors.” U.S. v. Grewal, 825 F.2d 220 (9th Cir. 1987).
9th Circuit holds that court need not discuss factors for imposing restitution. (620) The 9th Circuit stated that its review of the record convinces it that the district court considered all of the factors set forth in 18 U.S.C.. § 2580(a) in imposing restitution. “The court is not required to discuss the factors with the defendant on the record.” Moreover the court refused to consider defendants argument that the amount of restitution exceeded the actual loss to the victim, because defendant did not raise this issue in the trial court. U.S. v. Grewal, 825 F.2d 220 (9th Cir. 1987).
9th Circuit upholds order to pay $5 million restitution by surrender of all assets less $10,000 and 65% of any future earnings. (620) Defendant pleaded guilty to 2 of 31 indictment counts but was ordered to make restitution for the total loss sustained by all victims, an amount well in excess of the losses listed in the two counts. The plea agreement allowed restitution beyond the losses in the two counts only to the extent that the probation department determined it “possible”. Although the probation report said that chances of obtaining significant restitution were “minimal”, The 9th Circuit held that this did not violate the agreement because, as a practical matter defendant was only ordered to pay 65% of his income, and this could be modified by the probation department if it resulted in hardship. U.S. v. Koenig, 813 F.2d 1044 (9th Cir. 1987).
9th Circuit upholds restitution order even though the indictment alleged the amount attempted fraud, not the actual amount of loss. (620) In U.S. v. Whitney, 785 F.2d 824, 825 (1986), the Ninth Circuit held that a restitution order must be limited to actual dollar losses as stated in the indictment. Here the indictment stated only the $33,500 that defendant attempted to defraud the victims of, not the actual $19,500 loss. Nevertheless, the 9th Circuit held that the $33,500 gave defendant fair notice of the amount the government sought to prove, and the $18,500 restitution was less than the $19,500 loss proved with certainty at trial. U.S. v. Schiek, 806 F.2d 943 (9th Cir. 1986).
9th Circuit upholds restitution order even though defendant did not directly cause the victim’s injuries. (620) 18 U.S.C. § 3579(b)(2) authorizes a judge to order restitution for a criminal “offense resulting in bodily injury to a victim”. Under this section, restitution is authorized if the defendant created the circumstances under which the harm or loss occurred, even if he did not directly cause the victim’s injuries. Thus, even though defendant did not kill one victim or injure the other, he initiated and participated in the conspiracy which led to the injuries. U.S. v. Spinney, 795 F.2d 1410 (9th Cir. 1986).
9th Circuit vacates order of restitution of salaries that victim paid employees while they testified. (620) Restitution is authorized only for losses directly resulting from the defendant’s offense. The award to reimburse the bank for wages it paid employees who testified at trial and at various proceedings leading to trial was vacated. U.S. v. Kenney, 789 F.2d 783 (9th Cir. 1986).
9th Circuit rules that amount of restitution or damages must be specified in indictment if defendant pleads to indictment. (620) Under the Federal Probation Act 18 U.S.C. § 3651, the trial court, as a condition of probation, may require defendant to make restitution. However, the indictment must set forth the specific dollar figure which represents the damage/loss suffered by aggrieved parties. The amount specified serves as notice to the defendant as to his potential pecuniary liability. Therefore, the restitution amount must be set forth either in the indictment or the plea agreement that addresses restitution. U.S. v. Whitney, 785 F.2d 824 (9th Cir. 1986).
9th Circuit holds that restitution in installments is proper. (620) A period of specified installments should be provided where restitution is a critical factor in rehabilitation and appellant will have funds available in the future. U.S. v. Roberts, 783 F.2d 767 (9th Cir. 1986).
9th Circuit holds that government agency can be a victim entitled to restitution. (620) Alameda County Social Services Agency was a victim entitled to recover funds from someone who received them without right because of improper AFDC payments. The taxpayers are “human” victims of such a scheme. U.S. v. Ruffen, 780 F.2d 1493 (9th Cir. 1986).
9th Circuit holds that indigent may be ordered to pay restitution. (620) Restitution may be imposed under § 3580 of the Victims and Witnesses Protection Act. It is not prohibited even though defendant is indigent at the time, particularly since the amount of the order here was a small fraction of the loss to the victim and there is a possibility of a remitter order after five years of good faith compliance. U.S. v. Ruffen, 780 F.2d 1493 (9th Cir. 1986).
9th Circuit vacates restitution based on loss in value of timber after it was seized by the government. (620) It was improper to order the defendant to pay restitution for the amount that the timber he stole had declined during the year the government kept it in its custody. This decline in value was not caused by the defendant. U.S. v. Tyler, 767 F.2d 1350 (9th Cir. 1985).
9th Circuit holds that pre-1983 restitution is limited. (620) Under the pre-1983 law, restitution is limited to the amounts charged in the counts to which defendant pleads, unless there is a fully negotiated plea agreement setting forth the amount of restitution, or a trial or some other judicial determination. U.S. v. Black, 767 F.2d 1334 (9th Cir. 1985).
9th Circuit upholds constitutionality of Victim and Witness Protection Act. (620) The Ninth Circuit upholds an award of $1,560.00 restitution to a rape victim, rejecting claims that the Act is unconstitutional. The Act does not permit excessive fines or unusual punishments under the Eighth Amendment, and did not deprive him of his right to a jury trial under the Seventh Amendment and did not deprive him of due process under the Fifth Amendment. Nor was the defendant denied any of his statutory rights under the Act. The court properly ordered the defendant to reimburse the victim for $450.00 air fare to visit her family after the assault and for $650.00 lost wages when she left her job. U.S. v. Keith, 754 F.2d 1388 (9th Cir. 1985).
9th Circuit upholds refusal to instruct that restitution had a bearing on intent. (620) It was proper to refuse to instruct jury that restitution, while not a defense to embezzlement, may be considered as evidence bearing on intent. While suggesting that such an instruction might be proper where the restitution was made contemporaneously with the crime, the Ninth Circuit reaffirms that the crime is complete regardless of the defendant’s intent to repay or actual later restitution. U.S. v. Coin, 753 F.2d 1510 (9th Cir. 1985).
9th Circuit holds that restitution cannot exceed amount charged in indictment. (620) Since the mail fraud indictment alleged only $739.00 in fraudulent losses, it was error for the trial court to exceed this amount in ordering restitution. U.S. v. Gering, 716 F.2d 615 (9th Cir. 1983).
9th Circuit requires defendant to pay costs of prosecution. (620) Unless the statute under which a defendant is convicted provides otherwise, a district court may order a convicted nonindigent defendant to pay the costs of prosecution under 28 U.S.C. § 1918(b). Here, the courts uphold an order to pay $21,000 costs of prosecution in a mail fraud case. U.S. v. Gering, 716 F.2d 615 (9th Cir. 1983).
9th Circuit holds that concurrent prison and probation terms are proper, even with restitution. (620) Contrary to dictum in U.S. v. Edick, 603 F.2d 772 (9th Cir. 1979), a court may impose concurrent prison and probation terms, including a probation term which requires restitution. U.S. v. Jones, 712 F.2d 1316 (9th Cir. 1983).
10th Circuit finds district court properly considered defendant’s ability to pay pre-guidelines restitution. (620) In this pre-guidelines case, defendant appealed the court’s order requiring him to pay $613,765 in restitution under the Victim and Witness Protection Act, contending that the court failed to consider his ability to pay. The 10th Circuit rejected this argument. Defendant’s financial situation and employment prospects were discussed at the sentencing hearing as required by 18 U.S.C. § 3664(a). The defendant has the burden of proving an inability to pay restitution, and defendant did not meet this burden. Although he currently had a negative monthly cash flow and his assets were seized, defendant had a college degree in petroleum engineering and had successfully operated numerous supermarkets and convenience stores. His mail fraud scheme showed “imagination and skills of persuasion” that could be applied to legal endeavors. Finally, the restitution order was limited to five years after his release from prison. If, after good faith efforts, defendant was still unable to complete payment, the order would terminate. U.S. v. Morrison, 938 F.2d 168 (10th Cir. 1991).