A federal conviction for a white collar crime can include a court order requiring the person convicted of the crime to pay restitution to the victim of the offense or if deceased, to the victim’s estate. This law is called the Mandatory Victim Restitution Act and is found in 18 U.S.C. §3663A. It applies to any federal criminal case involving violence where the victim suffers injuries. It applies to any fraud crime where property is damaged or destroyed. It applies to any federal case where someone is injured as a result of a drug offense, and it applies to a losses suffered by a victim as a result of wire fraud or mail fraud. Miami attorney Ken Swartz has the knowledge and experience necessary to represent you if you are facing mandatory restitution.
The first step is to identify the victims. Prior to sentencing, the judge will have the probation officer to prepare a report identifying the victims and the losses for each victim. The report must also include information about the financial condition of the defendant. The government has the burden of proving the amount of the loss sustained by a victim as a result of the offense. In other words the government must be able to show the financial loss suffered by a victim was a direct result of the offense. The defendant will have the burden of showing the defendant’s own financial resources and the financial needs of the defendant and defendant’s own dependents. The judge will have to consider the resources and assets of the defendant, projected earnings of defendant and whether there are any obligations to dependents.
Once the sentencing judge identifies victims and their loss the judge will fashion an order of restitution in consideration of the defendant’s economic condition. There are a number of payment options the judge can impose.
- A single lump sum payment
- Partial payments at specified intervals
- In-kind payment
- Combination of payments at specified intervals plus in-kind payments.
If the defendant’s economic circumstances show the defendant to allow payment of any amount of the restitution order and there is no chance of pay me in the foreseeable future, the court may require the defendant to make nominal periodic payments.
The in-kind payment could be return of property, the replacement of property, or is the victim agrees, the court could order that services be rendered to the victim or a person or organization other than the victim.
If there are multiple defendants, the court may make each defendant liable for payment of the full amount of restitution. In other words the prosecutor can collect from which ever defendant has the financial resources. However, the court could apportion liability among the defendants to reflect the level of contribution to the victim’s loss and the economic circumstances of each defendant.
Restitution should not be confused with criminal forfeiture. Restitution is compensating a victim. Forfeiture is the return of property or proceeds of the criminal activity. In a forfeiture the court orders the defendant to forfeit to the government any property that was involved in the offense or that were proceeds obtained in directly or indirectly as a result of a violation.
South Florida attorney Ken Swartz has over 25 years of trial experience as a criminal defense lawyer in Miami, including restitution representation. Please call us if we can be of help to you.