Criminal Defense of Immigrants

 

(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”).[796]

 

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.[797] 

Some courts in immigration cases assume that the amount of restitution ordered by the convicting criminal court is the same as the amount of loss to the victim for purposes of finding the noncitizen is an aggravated felon.  An immigration judge may find, for example, that the restitution order alone proves that a conviction constitutes a fraud offense with a loss to the victim(s) in excess of $10,000.  While this assumption may be correct in some cases,[798] the amount of restitution is not always indicative of the actual loss to the victim as the result of a conviction.[799]  In one case, for example, a loss to the victim of $10,000 or more was found despite the fact that the restitution order was for less than that amount.[800]  Arguably, absent other proof of the loss, the restitution amount should not be relied upon to determine the loss to the victim, because it may be impossible to tell whether, in that particular case, the restitution amount accurately reflects the loss to the victim.  This is true for a number of reasons:

 

(1)  The restitution amount may be a sum of the loss to all victims in a multiple-count judgment.  However, for aggravated felony purposes, the amount of loss to a victim is determined by the loss that results from an individual count.[801]  See § 19.74(B), supra.  Defense counsel may want to specify in the record of conviction that the restitution amount includes loss from dismissed counts, in order to clarify that the restitution amount is not indicative of the loss resulting from offense of conviction.

 

(2)  Even in a single count case, the restitution amount may be more than the total loss to the victim.  A “restitution” amount ordered by a criminal court may include more than just money to be paid to the actual victim of the crime, and may include other sundry fines, investigation costs, interest, and contributions to victim restitution funds.[802]  Where the restitution ordered was just over $10,000, it is certainly possible that actual the loss to the victim may have been $10,000 or less, and the remainder covers court costs and fines, or other non-loss items.

 

(3)  Restitution can be ordered in some jurisdictions for offenses of which the defendant was never charged[803] or was acquitted,[804] offenses that cannot be prosecuted because the statute of limitation has passed,[805] and even for wholly unrelated cases.[806]  Therefore, restitution can be ordered for offenses other than the offense of conviction.  This gives rise to the argument that the amount of restitution ordered is not a valid reflection of the amount of loss flowing from the specific offense of conviction.  It would run counter to the law to allow deportation for a conviction on the basis of restitution ordered for offenses, especially offenses of which the defendant was acquitted, other than the offense of conviction.

 

(4)  There may be other, contrary, evidence available in the record of conviction that would show a different amount of loss, such as language in a plea agreement, or in the indictment itself.  In particular, where the plea agreement determines the amount of loss from the particular count of conviction, it controls, and the conviction should not be considered an aggravated felony fraud offense even if the restitution ordered is in excess of the required amount.[807]

 

The Ninth Circuit has stated that a finding of loss by a sentencing judge, applying a preponderance of the evidence standard, is insufficient by itself to demonstrate that the offense is an aggravated felony, since there is no evidence that the defendant was found beyond a reasonable doubt to have caused such loss, or that the defendant actually admitted to the loss.[808]  This same reasoning should apply to orders of restitution, which are also based on findings made by the sentencing judge, or even by the probation department.

[796] 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 INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), since it requires as an essential element an “intent to deceive” and since the 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”).

[797] See, e.g., United States v. Doe, 374 F.3d 851 (9th Cir. July 6, 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. Apr. 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).

[798] Ferreira v. Ashcroft, 390 F.3d 1091 (9th Cir. Dec. 1, 2004) (California conviction of welfare fraud, in violation of Welf. & Inst. Code § 10980(c)(2), constitutes an offense involving fraud or deceit with a loss to the victim in excess of $10,000, for purposes of qualifying as an aggravated felony fraud offense, where the plea agreement set the amount of restitution at $22,305 and where the California courts are required under California Penal Code § 1202.04(f) to set restitution based on the loss to the victim).

[799] See, e.g., Obashohan v. United States Att’y Gen., 479 F.3d 785 (11th Cir. Feb. 23, 2007) (restitution amount included amounts of loss attributable to facts not charged or admitted by the defendant).

[800] Munroe v. Ashcroft, 353 F.3d 225 (3d Cir. Dec. 16, 2003) (New Jersey conviction of theft by deception, N.J.S.A. 2C: 20-4, held to be aggravated felony fraud conviction under INA § 101(a)(43)(M)(i), 8 U.S.C. § 1101(a)(43)(M)(i), for deportation purposes where actual loss to victim exceeded $10,000, even though sentencing judge reduced amount of restitution from $11,522 to $9,999, since critical fact is amount of loss, not restitution amount).

[801] Alaka v. Attorney General, 456 F.3d 88 (3d Cir. Jul. 18, 2006); Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002) (conviction of bank fraud for knowingly passing a $605.30 bad check held not to constitute an aggravated felony, under INA § 101(a)(43)(M)(i), 8 U.S.C. 1101(a)(43)(M)(i), as a conviction of an offense involving fraud for which the loss to the victim(s) exceeded $10,000, even though losses resulting from the entire scheme described in the PSR exceeded $30,000, since plea agreement specified loss from the count of conviction as $605.30).

[802] Cf. 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).

[803] See, e.g., United States v. Ignancio Munio, 909 F.3d 436, 438-439 (11th Cir. 1990).

[804] See, e.g., United States v. Watts, 519 U.S. 148  (1997); United States v. Alveri, 922 F.3d 765, 766 (11th Cir. 1991); People v. Percelle, 126 Cal.App.4th 164 (Sixth Dist. 2005) (while defendant who was acquitted of an offense and was not granted probation could not be ordered to pay restitution for losses arising out of the offense of acquittal, the defendant could be ordered to pay restitution for acquitted offenses if probation had been granted).

[805] See, e.g., United States v. Behr, 93 F.3d 764, 765-66 (11th Cir. 1996).

[806] United States v. Love, 431 F.3d 477 (5th Cir. Nov. 29, 2005) (court can order that a defendant pay unpaid restitution previously ordered as part of a sentence by another federal court in another federal case).

[807] Chang v. INS, 307 F.3d 1185 (9th Cir. Oct. 11, 2002).

[808] Li v. Ashcroft, 389 F.3d 892, 898 (9th Cir. Nov. 19, 2004) (finding by sentencing judge does not satisfy categorical analysis requirement to show defendant was convicted of each element of the aggravated felony offense).