Filed: Jul. 25, 2019
Latest Update: Jul. 25, 2019
Summary: [PROPOSED] FINDINGS AND ORDER FOR RESTITUTION FOR DEFENDANT ROBERT JACKSON CHRISTINA A. SNYDER , District Judge . WHEREAS on December 11, 2018, the Ninth Circuit Court of Appeals issued its memorandum opinion in United States v. Robert Jackson , Case No. 16-50477, affirming defendant's convictions and vacating and remanding this Court's December 6, 2016 restitution order, and directing the Court to resolve the parties' disputes and set forth an "explanation of its reasoning, supported b
Summary: [PROPOSED] FINDINGS AND ORDER FOR RESTITUTION FOR DEFENDANT ROBERT JACKSON CHRISTINA A. SNYDER , District Judge . WHEREAS on December 11, 2018, the Ninth Circuit Court of Appeals issued its memorandum opinion in United States v. Robert Jackson , Case No. 16-50477, affirming defendant's convictions and vacating and remanding this Court's December 6, 2016 restitution order, and directing the Court to resolve the parties' disputes and set forth an "explanation of its reasoning, supported by..
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[PROPOSED] FINDINGS AND ORDER FOR RESTITUTION FOR DEFENDANT ROBERT JACKSON
CHRISTINA A. SNYDER, District Judge.
WHEREAS on December 11, 2018, the Ninth Circuit Court of Appeals issued its memorandum opinion in United States v. Robert Jackson, Case No. 16-50477, affirming defendant's convictions and vacating and remanding this Court's December 6, 2016 restitution order, and directing the Court to resolve the parties' disputes and set forth an "explanation of its reasoning, supported by the record" as to the proper amount of restitution owed by defendant in this case (see Dkt. 405 at p. 6), and
WHEREAS on July 22, 2019, the Court held a further restitution following the Ninth Circuit's mandate, and
WHEREAS the Court has previously read and considered the sentencing papers filed by both parties in connection with the issue of restitution,
THE COURT HEREBY FINDS, based upon the statements and evidence presented at the restitution hearing, the parties' filings relating to the issue of restitution, and all the files and records in this case, that defendant's objections to the Pre-Sentence Report ("PSR") and its calculations regarding defendant's restitution obligation (Dkt. 352 at ¶ 128), are expressly overruled. Specifically, the Court finds:
1. The Probation Department correctly calculated defendant's restitution obligation, which represents the total amount paid to defendant based on false claims in the course of the conspiracy. (PSR ¶¶ 42, 44, 54, 128.) The Court finds by a preponderance of the evidence that the 27 claims submitted by defendant or on his behalf and paid to defendant by the Department of Defense, Defense Finance Accounting Service ("DFAS"), including individual false claims that were not charged as substantive counts or for which defendant was acquitted, were in fact false and were submitted to DFAS and paid directly to defendant by DFAS in the course of the conspiracy. (See PSR ¶ 42; Trial Exs. 200 (summary chart), 204-231 (vouchers), 402-2 (defendant's bank statements.) The Court also finds by a preponderance of the evidence that the total loss to DFAS as a result of payments made to defendant based on false claims was $115,754.60. (See PSR ¶ 44.) This amount represents the actual loss to the victim (DFAS), which must be returned to said victim pursuant to the Mandatory Victims Restitution Act ("MVRA"). See 18 U.S.C. § 3663A(b)(1)(A) ("[t]he order of restitution shall require that such defendant ... return the property to the owner of the property..."). Pursuant to 18 U.S.C. § 3664(f)(1)(A), this Court shall order restitution to DFAS in the full amount of DFAS's losses, namely $115,754.60, without consideration of the economic circumstances of the defendant.
2. Defendant is not entitled to an offset based on false claims for which he was not charged or was acquitted by the jury. Under the MVRA, where, as here, "the crime of conviction includes a scheme, conspiracy, or pattern of criminal activity as an element of the offense, ... the restitution order [may] include acts of related conduct for which the defendant was not convicted." United States v. Anieze-Smith, 923 F.3d 565, 573 (9th Cir. 2019)(quoting United States v. Lawrence, 189 F.3d 838, 846-47 (9th Cir. 1999)). The court finds by a preponderance of evidence that all the losses were part of the false claims conspiracy. Accordingly, the restitution order may include losses stemming from uncharged and acquitted conduct. See United States v. Castro, 554 F. App'x 664, 667 (9th Cir. 2014) (affirming restitution award for losses arising out of uncharged and acquitted conduct where all losses stemmed from loans that were part of a common scheme); United States v. Booth, 309 F.3d 566, 571, 575-76 (9th Cir.2002).
3. Defendant is not entitled to an offset against his restitution obligation based on defendant's alleged entitlement to travel lodging reimbursement. Defendant has never submitted to DFAS true claims for reimbursement for the time period charged in the conspiracy that could, theoretically, offset any of the proved losses, and cannot claim entitlement to the falsely-obtained payments merely because he was eligible to submit valid claims. See United States v. Hunter, 618 F.3d 1062, 1064-66 (9th Cir. 2010) (defendant who sent false documents reflecting fictitious nursing credentials was not entitled to deduction from restitution for value of services provided to employers). Furthermore even if, as defendant claims, he was misled by his coconspirator about his eligibility and the procedure for obtaining travel reimbursement and otherwise would not have conspired to defraud DFAS, defendant cannot rely on an alleged lack of diligence on the part of DFAS to excuse his own criminal conduct or reduce his restitution obligation. See United States v. Lindsey, 850 F.3d 1009, 1015 (9th Cir. 2017) (evidence of negligence or intentional disregard by victim is not a defense to fraud).
ACCORDINGLY, THE COURT ORDERS that defendant's objections to the PSR are overruled. Defendant shall pay restitution in the total amount of $115,754.60 to the United States Department of Defense, Defense Finance and Accounting Service, at the rate of $100 per month or 10% of defendant's gross monthly income, whichever is greater. (See PSR ¶ 114.)
