Safe Havens

(E)  Restitution Orders.  The ordinary meaning of ‘restitution’ is ‘[a]n act of restoring to the proper owner something taken away, lost, or surrendered.’ Webster’s II New Riverside University Dictionary 1002 (1984); accord 18 U.S.C. § 3663A(2) (defining ‘victim’ entitled to restitution as ‘a person directly and proximately harmed as a result of the commission of an offense’).[674]  In the criminal context, however, restitution can include court costs, fines, and other payments, so it is not necessarily an accurate reflection of the amount of loss to the victim.  The relationship between loss to the victim and the amount of restitution ordered by a court is far from clear.[675]  See § 6.40, supra, for further discussion.

[674] St. John v. Ashcroft, 43 Fed.Appx. 281 (10th Cir. July 25, 2002) (federal conviction for use of a false social security number in violation of 42 U.S.C. § 408(a)(7)(B) constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(M)(i), since it requires as an essential element an “intent to deceive” and since court ordered restitution in the amount of $25,000, defining “restitution” and rejecting argument that the restitution amount was not equivalent to loss to the victim since the statute authorizing the restitution order, 18 U.S.C. § 3583(d), did not require that there be a loss to a victim before restitution could be ordered); accord, United States v. Nichols, 229 F.3d 975, 978 (10th Cir. 2000) (counting violation of 42 U.S.C. § 408(a)(7)( B) as a “crime[] involving fraud and deceit”).

[675] See, e.g., United States v. Doe, 374 F.3d 851 (9th Cir. July 06, 2004) (amount of restitution imposed must reflect the losses of identified victims); United States v. Morgan, 376 F.3d 1002 (9th Cir. July 23, 2004) (district court erred in including interest and finance charges in calculation of total amount of loss for sentencing purposes); United States v. Hickey, 367 F.3d 888 (9th Cir. April 30, 2004) (order of disgorgement of $1.1 million in civil action brought by SEC did not bar government from proceeding criminally against defendant, or from proving losses of more than $1.1 million).