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United States v. Willis

United States District Court, D. New Mexico

December 7, 2018

BOBBY WILLIS, Defendant.


         THIS 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.


         Defendant 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.

         The 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). Doc. 88.

         The 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.

         The 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.

         In 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 findings.

         The 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 again.


         The 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).

         After 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).

         Defendant 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.

         I. Amount of Restitution.

         In a 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 ...

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