Criminal Practice – Mail Fraud – Restitution – Court Findings

U.S. v. Leftwich. (Lawyers Weekly No. 10-01-1240, 7 pp.) (Agee, J.) No. 09-4419, Dec. 20, 2010; USDC at Greenbelt, Md. (Titus, J.) 4th Cir. Click here for the full text of the opinion.

Holding: In ordering restitution in the amount of IRS refunds issued to defendant in his multi-million dollar fraudulent tax-return scheme, the district court failed to identify the statute under which it was ordering restitution, and the 4th Circuit vacates the restitution order and remands for further proceedings.

Defendant pled guilty to mail fraud in a plea agreement that established he engaged in a multi-year scheme to defraud the U.S. through submission of fraudulent tax returns. Of the more than $4 million claimed on the false returns, the IRS issued $2,404,087 in refund payments to defendant and his coconspirators before the scheme was discovered. The plea agreement gave notice to defendant that the court may also order him to make restitution pursuant to 18 U.S.C. §§ 3663, 3663A and 3664.

In ordering restitution at the sentencing hearing, the district court simply stated, “I’m going to make an order of restitution in the amount of $2,404,087, based upon the information that’s been provided by the government at sentencing, and as well as in the presentence report and the plea agreement.”

Neither the court’s statement from the bench nor its written order reflected the statute under which the restitution was imposed or that the court had considered any of the statutory factors it is to review in making a restitution award. The failure of the district court in this case to specify the statute under which it ordered restitution prevents us from effectively determining whether the court properly exercised its discretion in fashioning that restitution order.

In light of the substantially different requirements of the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A and the Victim Witness Protection Act, 18 U.S.C. § 3663, the failure of the district court to indicate which statute it was applying prevents this court from effectively conducting appellate review of the district court’s exercise of discretion. We vacate the restitution order and remand to the district court for further proceedings to identify the statute under which restitution is awarded and to make the required findings under that statute.

Vacated and remanded.