Restitution Trifecta

United States v. Moeser | 13-3718

August 2014

Next time a defendant questions why he or she is required to be jointly and severally liable for restitution in a criminal case, pull out United States v. Moeser, No. 13-3718, as a primer to explain the fundamentals of restitution. Moeser was a loan officer who, according to him, played a more minor role in a larger bank fraud. The long and short of restitution in the Seventh Circuit is that “co-conspirators are held jointly and severally liable for all foreseeable losses within the scope of their conspiracy regardless of whether a specific loss is attributable to a particular conspirator.”

On the other hand, the next time the government asserts that the restitution amount must be equal to the loss amount determined for sentencing purposes, pull out United States v. Locke, 11-3743. In Locke, the Seventh Circuit makes crystal clear that loss amount as determined under the Sentencing Guidelines is distinct and different from restitution amounts as determined by Mandatory Victim Restitution Act. The Court acknowledges that there is a conceptual relationship between the two figures, but the Court makes equally clear that sentencing loss does not necessarily equal restitution amount.

Finally, if you ever think that the government is not playing fair with its treatment of a restitution order and a related forfeiture order, take a look at United States v. Sheth, 13-2040, 14-1824, 14-1980. The facts and procedural posture of the case are unique. But the Seventh Circuit reversed and remanded the case finding that the district court had not created a sufficient factual record to address concerns regarding asset valuation, and the order in which the government was attempting to enforce its related judgments – one judgment to recover restitution (which does not allow the government to proceed against certain assets – e.g. IRA’s) and one judgment to recover forfeited assets (which does not exempt assets and may allow for substitution of assets as a means of recovery).