United States District Court, D. Nebraska
FINAL RESTITUTION FINDINGS
M. Gerrard Chief United States District Judge.
matter is before the Court for a final determination of the
issue of restitution pursuant to the Mandatory Victims
Restitution Act (MVRA), 18 U.S.C. § 3663A. While the
Court finds that the MVRA applies to this case, the Court
finds insufficient evidence to support an award of
initial question presented is whether the MVRA is implicated
in this case at all. The Court concludes that it is. The MVRA
applies, among other things, to an "offense against
property" under Title 18 of the United States Code,
"including an offense committed by fraud or
deceit." § 3663A(c)(1)(A)(ii). The MVRA doesn't
define "offense against property," but the circuit
courts to have considered the question have concluded
persuasively that in determining whether a conviction
qualifies as an "offense against property," the
Court looks to the conduct underlying the offense of
conviction instead of the elements of the crime. United
States v. Ritchie, 858 F.3d 201, 208-11 (4th Cir. 2017);
United States v. Collins, 854 F.3d 1324, 1329-35
(11th Cir.), cert. denied, 138 S.Ct. 503 (2017);
see United States v. Quarrell, 310 F.3d 664, 678
(10th Cir. 2002).
defendant pled guilty to making false statements in violation
of 18 U.S.C. § 1001(a)(2)-specifically, to making false
statements on a Social Security Administration Form 821 in
2013, when completing questions about his work activities.
Filing 1 at 1. The purpose of Form 821 is to determine
whether a recipient of Social Security disability benefits is
capable of substantial gainful activity, such that he is no
longer disabled. See20 C.F.R. § 404.1571; POMS
DI 10505.035. Given that purpose, deliberately underreporting
earned income on Form 821 is inherently an "offense
against property . . . committed by fraud or deceit"
within the meaning of the MVRA.
the government's argument breaks down, however, is with
respect to proving up the restitution amount. The government
bears the burden of proving the restitution amount by a
preponderance of the evidence. 18 U.S.C. § 3664(e).
United States v. Adejumo, 848 F.3d 868, 870 (8th
Cir. 2017); see United States v. Smith, No. 18-3221,
slip op. at 4 (8th Cir. July 3, 2019). Restitution may only
be awarded for the loss caused by the specific conduct that
is the basis of the offense of the conviction. United
States v. DeRosier, 501 F.3d 888, 896 (8th Cir. 2007).
The amount of restitution cannot exceed the actual, provable
loss realized by the victims. United States v.
Martinez, 690 F.3d 1083, 1088 (8th Cir. 2012); see
United States v. Adejumo, 848 F.3d 868, 870 (8th Cir.
2017). And the causal connection between the defendant's
acts and the victim's losses must not be unreasonably
extended. United States v. Spencer, 700 F.3d 317,
323 (8th Cir. 2012).
the presentence report based its loss calculation-and,
therefore, the recommended restitution-on the SSA's
determination that the defendant had not been disabled since
2008, and had been overpaid $114, 474.83 in disability
benefits. See filing 61 at 11-12. But the defendant
objected to that conclusion and amount-and the government
presented no evidence at sentencing to substantiate it. When
the defendant objects to any a factual allegation in the
presentence report on an issue on which the government has
the burden of proof, the government must present evidence at
the sentencing hearing to prove the existence of the disputed
facts. United States v. Poor Bear, 359 F.3d 1038,
1041 (8th Cir. 2004). And it didn't in this case.
Cf. United States v. Dorcely, 454 F.3d 366,
376-77 (D.C. Cir. 2006).
leaves the Court little to connect the offense of
conviction-false statements on a form in 2013-with the
disability benefits he was found by the SSA to have overpaid
since 2008. There is no evidence from which the Court can
conclude that had the 2013 form been filled out accurately,
the SSA would have stopped paying disability benefits-meaning
the Court has no evidence of causation. And even if the Court
could somehow infer causation for benefits paid after 2013,
there's obviously no way to make that connection for the
previous 5 years-and no evidence from which the Court can
parse out the losses before 2013 and after. The Court can
reasonably estimate a loss, even if it can't be precisely
calculated. See Smith, slip op. at 4;
Adejumo, 848 F.3d at 870. But that doesn't
authorize pure speculation.
true that in a fraud case, restitution may be based on the
loss from the course of the scheme alleged in the
indictment. United States v. Chaika, 695 F.3d 741,
748 (8th Cir. 2012). But the defendant didn't plead
guilty to fraud, and denied a scheme to defraud, see
filing 54-and the government did not give the Court evidence
to conclude otherwise. The government's brief (filing 67)
was dedicated almost entirely to demonstrating the
applicability of the MVRA, and provides no support for fraud,
causation, or the loss amount. The defendant's brief
(filing 68), on the other hand, reasserted his objection, and
the government elected not to respond.
clear-the Court has no particular reason to quarrel with the
SSA's determination that the defendant received benefits
to which he wasn't entitled. But that determination has
no preclusive effect here. Cf. Morse v.
Comm'r, 419 F.3d 829, 834 (8th Cir. 2005). And, the
Court notes, even the SSA found (despite finding the
defendant hadn't been disabled) that the defendant
hadn't been engaged in substantial gainful
activity, see filing 61 at 11-which is the issue
that Form 821 is meant to help the SSA assess.
the Court has no evidence before it from which it can
conclude that the offense of which the defendant was actually
convicted caused the government's alleged losses, nor
does the Court have evidence that the offense of conviction
was part of a fraudulent scheme. Accordingly, although the
MVRA is implicated here, the government hasn't met its
burden of proving the restitution amount, or providing
evidence from which a reasonable estimate can be made.
ORDERED that the defendant's objection (filing 54) to the