Opinion
No. 3:19-cr-62 (VAB)
04-03-2020
UNITED STATES OF AMERICA, Plaintiff, v. THERESA FOREMAN, Defendant.
ORDER AND RULING ON MOTION FOR RESTITUTION
On March 4, 2019, following a one-count Information, Ms. Foreman pled guilty to tax evasion, in violation of 26 U.S.C. § 7201. See Information, ECF No. 1 (Mar. 4, 2019); Plea Agreement, ECF No. 5 (Mar. 4, 2019).
On January 6, 2020, Ms. Foreman was sentenced to a term of imprisonment for one year and one day, a three-year term of supervised release, and a special assessment of $100.00. Judgment, ECF No. 46 (Jan. 28, 2020). Ms. Foreman was instructed to self-surrender on February 28, 2020 at 2:00 p.m. Id. Restitution would be assessed at a later date. Id.
On March 25, 2020, the Government filed a motion for a restitution order. Mot. for Restitution Order, ECF No. 48 (Mar. 25, 2020) ("Mot.").
Ms. Foreman has not responded.
For the reasons explained below, the Court GRANTS the Government's motion and orders Ms. Lewis to pay restitution in the amount of $640,209.46.
I. STANDARD OF REVIEW
The Mandatory Victim Restitution Act ("MVRA") "provide[s] full compensation to victims of certain types of crimes . . . including crimes against property in which an identifiable victim has suffered a pecuniary loss[.]" U.S. v. Smathers, 879 F.3d 453, 459 (2d Cir. 2018); see also 18 U.S.C. §§ 3663A and 3664 (codified provisions of the MVRA). "[T]he term 'victim' means a person directly and proximately harmed as a result of the commission of an offense . . . . " 18 U.S.C. § 3663A(a)(2). Because restitution is a compensatory remedy and because the MVRA limits restitution to the amount of a victim's actual loss, "a restitution order must be tied to the victim's actual, provable, loss." U.S. v. Zangari, 677 F.3d 86, 91 (2012) (citations omitted); see also U.S. v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006) ("[I]t can be fairly said that the 'primary and overarching' purpose of the MVRA 'is to make victims of a crime whole, to fully compensate these victims for their losses and to restore these victims to their original state of well-being.'" (quoting U.S. v. Simmonds, 235 F.3d 826, 831 (3d Cir. 2000)); see also Paroline v. U.S., 572 U.S. 434, 456 (2014) ("The primary goal of restitution is remedial or compensatory, but it also serves punitive purposes[.]" (citations omitted)).
The victim "must have endured a financial loss that was 'directly and proximately' caused by a defendant's fraud." U.S. v. Calderon, 944 F.3d 72, 95 (2d Cir. 2011) (emphasis omitted) (quoting U.S. v. Paul, 634 F.3d 668, 676 (2d Cir. 2011)). "[A] district court cannot properly order restitution under the MVRA unless the victim's harm resulted from the offense of conviction[.]" U.S. v. Reifler, 446 F.3d 65, 135 (2d Cir. 2006). "So to say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result." Paroline v. U.S., 572 U.S. 434, 444 (2014).
"'Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence." U.S. v. Green, No. 3:16-cr-20 (MPS), 2016 WL 6652442, at *3 (D. Conn. Nov. 7, 2016) (quoting 18 U.S.C. § 3664(e)). The Government "bears the burden of establishing by a preponderance of the evidence that each individual it claims is entitled to restitution was actually a 'victim[,]'" Calderon, 944 F.3d at n.9 (2d Cir. 2019) (quoting U.S. v. Archer, 671 F.3d 149, 173 (2d Cir. 2011)), and the amount of loss sustained by a victim, 18 U.S.C. § 3664(e). "The preponderance standard 'must be applied in a practical, common-sense way.'" U.S. v. Bryson, No. 3:13-cr-00041 (JCH), 2015 WL 4619637, at *1 (D. Conn. July 31, 2015) (quoting U.S. v. Gushlak, 728 F.3d 184, 196 (2d Cir. 2013)).
II. DISCUSSION
The plea agreement contemplated total restitution of $712,445.71, with $688,506.71 to the IRS and $23,939.00 to individuals. Plea Agreement at 3. "Since the filing of the plea agreement, the parties have made certain adjustments in [Ms. Foreman's] favor," and the Government submits a proposed restitution order with an adjusted total that accounts for the changes. Id. ¶ 4. Specifically,
• "For 2011, the proposed restitution order reallocates payments between interest and penalties/fees, to ensure correct crediting." Id. ¶ 4(a).
• "The proposed restitution order also removes . . . A.N.N., and the $2,200 that would otherwise have been due to her . . . . [a]s such, the total amount to be paid to individuals is reduced by $2,200 and is $21,739." Id. ¶ 4(b).
• "For 2013, the amount of criminal tax loss has been adjusted to $39,227.87. For restitution purposes, the amount to be allocated to 2013 is $17,488.87 because, consistent with the plea agreement, the $21,739 due to others is subtracted." Id. ¶ 4(c).
• "For 2014, the amount to be paid to the IRS in restitution has been adjusted to $227,485.88." Id. ¶ 4(d).
• "Total restitution to the IRS for the 2010 through 2014 tax years is $618,470.46." Id. ¶ 4(e).
This results in a total criminal loss of $640,209.46. Id. ¶ 5.
As Ms. Foreman agreed to pay a greater amount in the plea agreement and the Government is seeking less, the Court will award restitution of $640,209.46.
III. CONCLUSION
For the reasons explained above, the Court GRANTS the Government's motion and orders Ms. Lewis to pay restitution in the total amount of $640,209.46.
SO ORDERED at Bridgeport, Connecticut, this 3rd day of April, 2020.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge