Cases published since November 1987.
  • Contact Us
  • James Publishing
  • Login
Logo
Searching Tips

How To Search: Type words into the entry box that you want to search for, then click [Search].
Any Word: Just type one or more words to find any of the words. [ Find ANY ] is the usual default.
All Words: Type more than one word and select [ Find ALL ] to find all of the words.
Or you can use Booleans (see below).
Exact Phrase: “…”
You can search for exact phrases by surrounding them in double quotes. Or you can just type the words and select [ Find EXACT phrase ]. Punctuation must be the same to be found between words, for example “Smith, John”
Boolean Operators: + –
Use + in front of each word or a quoted phrase that you require.
Use – in front of each word that you want to exclude.
Boolean Expressions: AND OR NOT ( )
Use AND, OR, NOT, (, and ) to form a Boolean expression. AND requires, OR allows, NOT excludes.
Use double quotes to protect the words “and”, “or”, or “not” in a phrase.
Examples:

Query Gets the documents with
stock market ‘stock’ or ‘market’ or both
“stock market” the phrase ‘stock market’
+stock +market ‘stock’ and ‘market’
+stock -market ‘stock’ but not ‘market’
+president -“United States” ‘president’ but not ‘United States’
(stock OR market) AND NOT president ‘stock’ or ‘market’, and without ‘president’

Capitalization doesn’t matter. The ranked results will come from a total match on the words and phrases which you supply, so try to think of several specific terms for your topic and spell them correctly. It may help to include important plurals and derived words too, like [address addresses contact contacting information] .

Table of Contents

550 – Determining the Sentence (Chapter 5)

550 – Determining the Sentence (Chapter 5)
  • 560 Probation (§5B) (for Revocation, see §800)
  • 590 Parole
  • 600 Custody Credits
  • 610 Restitution (§5E4.1)
  • 630 Fines and Assessments (§5E4.2)
  • 640 Community Confinement, Etc. (§5F)
  • 650 Consecutive Sentences (§5G)
  • 660 Specific Offender Characteristics (§5H)
  • 580 Supervised Release (§5D) (for Revocation, see §800)

Back to main table of contents

§620 Pre-Guidelines Restitution Cases

First Circuit
Third Circuit
Fifth Circuit
Sixth Circuit
Seventh Circuit
Ninth Circuit
Tenth Circuit

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).

Browse Contents

  • 100 Pre-Guidelines Sentencing, Generally
  • 110 Guidelines Sentencing, Generally
  • 150 Application Principles, Generally
  • 200 Offense Conduct, Generally
  • 400 Adjustments, Generally
  • 500 Criminal History, Generally
  • 550 Determining the Sentence
  • 700 Departures, Generally
  • 750 Sentencing Hearing, Generally
  • 780 Plea Agreements, Generally
  • 800 Violations of Probation and Supervised Release
  • 840 Sentencing of Organizations
  • 850 Appeal of Sentence (18 U.S.C. §3742)
  • 880 Habeas Corpus / 28 U.S.C. 2255 Motions
  • 900 – Forfeitures, Generally

Recent Newsletters
in PDF format

  • July 14, 2025
  • June 30, 2025
  • June 16, 2025
  • June 2, 2025
  • May 19, 2025

Recent Indices
in PDF format

  • June 2, 2025
  • April 7, 2025
  • February 10, 2025
  • December 30, 2024
  • October 21, 2024
© James Publishing, Inc. (866) 72-JAMES (866-725-2637)
Last Updated 12/16/13