Criminal Restitution

The government bears the burden of proving the loss amount by a preponderance of the evidence. However the process is often informal and relies on victim impact statements. We demand a formal evidentiary hearing.

We scrutinize the loss calculation. In fraud cases the loss is not simply the amount invested. It is the amount invested minus any value returned to the victim. We argue for the net loss calculation. If a victim received interest payments or if the defendant performed legitimate services those values must be deducted from the restitution total. We also challenge consequential damages. The statute generally covers actual loss but not lost profits or pain and suffering or legal fees incurred by the victim in civil litigation. We move to strike these unauthorized categories from the restitution order to ensure the client pays only what the law requires.

Restitution is limited to the harm caused by the specific conduct for which the defendant was convicted. This is a critical limitation in plea agreements. If a defendant pleads guilty to one count of wire fraud in a twenty-count indictment the government often tries to seek restitution for all twenty counts.

We litigate the scope of the conviction. Unless the plea agreement explicitly states that the defendant agrees to pay restitution for all relevant conduct the court is limited to the loss caused by the specific count of conviction. We carefully negotiate the terms of the plea agreement to limit this exposure. We argue that losses from uncharged or acquitted conduct cannot be included in the criminal restitution order. We use Supreme Court precedent to restrict the financial liability to the precise offense elements admitted by the client.

The law prohibits double recovery. If a victim has received compensation from an insurance company or a civil settlement the defendant is entitled to an offset.

We investigate the insurance claims of the victim. If an insurance carrier paid the victim for the loss the victim cannot claim that amount as restitution. The right to restitution might shift to the insurer but the total amount cannot increase. We also analyze civil settlements. If the defendant settled a parallel civil lawsuit with the victim the restitution order must reflect that payment. We present proof of these payments to the sentencing judge to reduce the criminal restitution obligation dollar for dollar. We ensure that the victim does not profit from the crime by collecting twice for the same injury.

Victims often claim future lost income or damage to reputation as part of their loss. We argue that these are speculative civil damages not appropriate for criminal restitution.

Criminal restitution is designed to replace lost property or cover medical bills. It is not designed to compensate for hypothetical earnings. We cite case law that restricts restitution to actual provable loss. If a business claims that the fraud of the defendant caused a drop in their stock price we argue that market volatility makes it impossible to isolate the defendant's conduct as the sole cause. We demand that the court exclude any loss figure that is not supported by hard receipts and direct causation. We force the government to prove the concrete value of the alleged harm.

We work to expand the definition of loss for our victim clients. In cases of violent crime or child pornography the statute allows for broader restitution including the cost of medical care and therapy and lost income.

We gather medical records and expert testimony to prove the necessity of long-term care. In financial crimes we argue that the costs of the investigation such as hiring auditors to discover the extent of the embezzlement should be included in the restitution. While legal fees are often excluded investigatory costs can be recoverable if they were necessary to assist the government. We build a legal argument to maximize the recoverable amount under the specific restitution statute applicable to the case.

Obtaining a restitution order is only the first step. Collecting it is the real challenge. Defendants often hide assets or claim indigency.

We work with the Financial Litigation Unit of the U.S. Attorney and use private enforcement mechanisms. A criminal restitution order acts as a lien in favor of the United States. It can be enforced against the property of the defendant for twenty years. We investigate the assets of the defendant. If we find hidden real estate or shell companies we petition the court to seize those assets. We also monitor the prison account of the defendant and their post-release earnings to ensure that the monthly payment schedule is enforced. We pursue the assets of the defendant relentlessly to ensure the victim is compensated.

The Department of Justice has the discretion to apply forfeited funds to restitution through a process called remission. We petition the DOJ to grant remission.

For defendants this is critical. If the government seized one million dollars in a bank account and the restitution is one million dollars we argue that the seizure should satisfy the debt. We fight against the government keeping the money while leaving the defendant with a crushing civil judgment. We draft settlement agreements that explicitly state that forfeited assets will be credited toward the restitution obligation. This prevents the double dip where the government gets the money and the victim gets a judgment against a penniless defendant.

In conspiracy cases the court can hold all defendants jointly and severally liable for the total restitution. This means a minor participant can be on the hook for the entire loss of the scheme.

We litigate the apportionment of liability. We argue that the court should apportion the restitution based on the relative culpability of each defendant. While the statute allows for joint liability it does not mandate it in every aspect. We present evidence of the limited role of our client. We argue that it is fundamentally unfair to saddle a low-level employee with the multi-million dollar debt created by the mastermind. We seek to limit the liability of our client to the losses they personally caused or directly benefited from.

The court must set a payment schedule based on the financial resources of the defendant. We provide the court with a detailed budget. We show the cost of housing and food and support for dependents.

We argue for a nominal payment schedule if the client is struggling to find work. A payment of fifty dollars per month is better than a revocation hearing. We also challenge the aggressive tactics of the Financial Litigation Unit. If the government garnishes 100% of the paycheck of the client we file a motion to modify the payment plan. We argue that the defendant needs enough money to live in order to maintain the employment that allows them to pay restitution at all.

Restitution orders are final judgments but the payment schedule can be modified. If the financial circumstances of the defendant change such as a job loss or a medical emergency we petition the court to adjust the payments.

We also litigate the termination of the obligation. While the debt rarely goes away the period of supervision does. We argue that the client has made a good faith effort to pay and should be released from probation even if the debt is not fully satisfied. The debt then becomes a civil judgment rather than a threat to liberty. We aim to decouple the financial obligation from the threat of incarceration.