United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ON RESTITUTION
MATTER comes before the Court on supplemental briefing on the
appropriate restitution payment schedule. Upon review of
Defendant's financial conditions, the Court concludes
that Defendant should only make nominal restitution payments.
pled guilty to two counts of wire fraud pursuant to 18 U.S.C.
§ 1343. The victims transferred $1 million to Defendant
to invest in a real-estate LLC on their behalf. Defendant
pocketed $995, 000 and did not invest the money as promised.
$5, 000 went to a third party for fees.
Court held evidentiary hearings to determine the amount of
loss suffered by the victims following their receipt of
certain real property in a civil settlement with Defendant.
In a previous opinion, the Court found that the amount of
actual loss (and therefore the amount of restitution) was
$776, 640, less any cash payments made pursuant to a civil
settlement agreement. The Court ordered supplemental briefing
on Defendant's financial condition and the payment
schedule pursuant to 18 U.S.C. § 3664(f)(2).
Revised PSR (Doc. 60) provides that
Defendant's only income is $1, 132 in social security per
month, while his monthly expenses are $3, 567, resulting in a
negative cash flow of $2, 435 per month. Finally, the PSR
notes that Defendant has numerous medical problems and is no
longer able to work or drive.
revised PSR lists assets of $1, 896 in securities, and $1,
799 in a personal checking account. The PSR and the Defendant
assert that the securities belong to his ex-wife pursuant to
a divorce settlement, while he only owns a one-half interest
in the personal checking account.
supplemental briefing, November 9, 2018, Defendant noted his
income was the same as previously reported. He also noted
that after his medical expenses, he has $252 left over to pay
for food, rent, phone, travel, and state probation costs. He
represented he has no money in checking remaining, and no
assets with which to make restitution payments. This is
consistent with the undisputed PSR, as his listed assets were
likely quickly exhausted by his negative monthly cash flow.
He represents that his ex-wife provides care, and each month
his debt to her increases. The United States does not dispute
the representations in the PSR or in Defendant's
supplemental brief. Doc. 91. Therefore, the
Court adopts the undisputed portions of the PSR as factual
Court notes that, based on the PSR and prior hearings in this
case, Defendant has many acute debilitating medical
conditions, which make it unlikely he will earn a living
Mandatory Victim Restitution Act (“MVRA”)
provides that the district “court shall order ... that
the defendant make restitution to the victim of the
offense.” 18 U.S.C. § 3663A(a)(1). The amount of
restitution is the amount of loss suffered by the victims and
shall be made without reference to a defendant's economic
circumstances. 18 U.S.C. § 3664(f)(1)(A).
determining the amount of restitution owed to the victims,
the Court “shall ... specify in the restitution order
the manner in which, and the schedule according to which, the
restitution is to be paid.” 18 U.S.C. §
3664(f)(2). When setting a schedule of payments, the district
court must consider “the financial resources and other
assets of the defendant, including whether any of these
assets are jointly controlled; projected earnings and other
income of the defendant; and any financial obligations of the
defendant; including obligations to dependents.” 18
U.S.C. § 3664(f)(2), cited in United States v.
Zunie, 444 F.3d 1230, 1238 (10th Cir. 2006). The
Defendant bears the burden of demonstrating his financial
resources. 18 U.S.C. § 3664(e), cited in United
States v. Wilson, 416 F.3d 1164, 1170 (10th Cir. 2005).
requests that the Court order nominal restitution of $5 per
month. The Government requests a nominal payment of $75, but
also asserts that the restitution order should provide that
payment of the full restitution amount is due immediately.
Because there is no factual basis in the record to order
immediate payment pursuant to § 3664(f)(2), the Court
only orders a nominal payment.
Amount of Restitution.
previous opinion, the court determined that the amount of
restitution was $776, 640, less any cash payments made under
a civil settlement. Doc. 88. The parties
agreed that $25, 000 had been paid in a civil settlement.
Therefore, the Court concludes that the actual amount of loss