Consistent with its compensatory purpose, the Court noted that the MVRA does not authorize a victim to recover more in restitution than necessary to compensate it for its losses. Slip Op. 9 (citing 18 U.S.C. § 3664(j)(2)). Specifically, the MVRA states that “[a]ny amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim [in another proceeding].”

[4] MVRA § 3663A(b)(4) (emphasis added). [5] 18 U.S.C. § 3663A. [6] 18 U.S.C. § 3664(f)(1)(B). [7] 18 U.S.C. § 3663A(a)(2).

hat theory, albeit with slightly different wording. Avenatti was allowed to argue his defense theory, and, in substance, the jury was charged on this theory. Next, Avenatti argued that the trial court should have accepted his proposed instruction that the client has the ultimate authority to approve settlements and must sign settlement agreements. Here, too, the panel observed that the trial court did instruct the jury to that effect. In both instances, the panel explained, the problem was not in the jury instructions, but that the jury simply did not buy Avenatti’s theory that he was acting on Franklin’s behalf.RestitutionIn addition to his prison time, Avenatti was ordered to pay Nike $259,800.50 in restitution pursuant to the Mandatory Victims Restitution Act. That money was intended to compensate Nike for the legal fees it incurred assisting with the government’s investigation. Avenatti argued that the district court lacked the authority to order that payment. First, he pointed to 18 U.S.C. § 3664, the MVRA provision which covers procedures for issuing and enforcing orders of restitution. That statute provides that the trial court has 90 days after sentencing to order restitution. Because the trial court indisputably issued its order more than 90 days after sentencing, Avenatti claimed that the court had missed its chance to order restitution. Citing Dolan v. United States, 560 U.S. 605 (2010), the panel concluded that, although the defendant has a legally enforceable right to request that the court order restitution within 90 days, a court can nevertheless order restitution after that period has elapsed. Avenatti sought to limit that principle, seizing on a line in Dolan holding that the trial court can still order restitution after 90 days “at least where” the court had previously made it clear (within the deadline) that it would do so. The panel rejected that argument, reading “at least where” to highlight an example of when the court could still order restitution, as oppose

ourt should similarly deny restitution in cases in which persons could be deemed aiders and abettors in the criminal context, as well as in SEC enforcement actions. To be sure, if the Securities and Exchange Commission could bring a case for aiding and abetting a violation of Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1934, the government may be unable to demonstrate the person’s victim status. Indeed, although there is some disagreement in the district courts about whether securities fraud is a covered offense under the Mandatory Victims Restitution Act, the Second Circuit has acknowledged that district courts have held that the act applies to defendants convicted of a listed range of offenses, including securities fraud. 18 U.S.C. § 3663A. 18 U.S.C. § 3663(c)(1)(A)(i)-(B).United States v. Razzouk, 984 F.3d 181, 188–89 (2d Cir. 2020); compare United States v. Collins, 854 F.3d 1324, 1335 (11th Cir. 2017).United States v. Martin, 803 F.3d 581, 593 (11th Cir. 2015). 18 U.S.C. § 3664(e). 18 U.S.C. § 3663A(2).United States v. Goodrich, 12 F.4th 219, 228–29 (2d Cir. 2021); compare United States v. Stein, 846 F.3d 1135, 1152 (11th Cir. 2017).Goodrich, 12 F.4th at 229. 18 U.S.C. § 3663A(2). 446 F.3d 65, 135 (2d Cir. 2006).United States v. Agate, 613 F. Supp. 2d 315, 321 (E.D.N.Y. 2009).SeeUnited States v. Quatrella, 722 F. App’x 64, 69 (2d Cir. 2018); Unites States v. Benton, 765 F. App’x 477, 482 (2d Cir. 2019); Fed. Ins. Co. v. United States, 882 F.3d 348, 366 (2d Cir. 2018).In re Wellcare Health Plans, Inc., 754 F.3d 1234, 1239 (11th Cir. 2014).United States v. Cavallo, 790 F.3d 1202, 1239 (11th Cir. 2015).See United States v. Ojeikere, 545 F.3d 220, 223 (2d Cir. 2008).Reifler, 446 F.3d at 120–28. 18 U.S.C. § 2(a). 15 U.S.C. § 78t(e).United States v. Afriyie, 27 F.4th 161, 166 n.1 (2d Cir. 2022).

The district court took over $145,00 for restitution. Mr. Simpson-El contended that was wrong because there was no material change in economic circumstances as required by 18 U.S.C. § 3664(k) to justify a restitution change. He argued the settlement was for the loss of future income, i.e., income that was the basis for the original restitution order.

The government did not object to Yalincak’s motions, and the district court granted them in a text-only order on the case docket. Years later, in 2015, the district court vacated its 2007 order after it realized that its initial order had likely been based on a misinterpretation of the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C. § 3664(j)(2). The MVRA provides that restitution obligations “shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim in . . . any Federal proceeding.”

Manrique v. United States, USSC No. 15-7250, 2017 WL 1390728 (April 19, 2017), affirmingUnited States v. Manrique, 618 Fed. App. 579 (11th Cir. 2016); Scotusblog page (including links to briefs and commentary)Lawyers handling federal criminal appeals, take note: This decision holds that, to challenge a deferred restitution order under the Mandatory Victim Restitution Act, 18 U.S.C. § 3664(d)(5), that is entered in an amended judgment issued after the defendant has filed a notice of appeal, the defendant must file a second notice of appeal from the amended judgment containing the restitution amount.Unlike the Eleventh Circuit, however, the Court holds the requirement for a second notice of appeal is not jurisdictional; it is instead a “mandatory claim processing rule,” which means the respondent may forfeit an objection to a failure to file the notice of appeal if it waits too long to raise the objection.The Court’s holding precludes an argument under Seventh Circuit precedent (United States v. Cantero, 995 F.2d 1407, 1408 n.1 (7th Cir. 1993)) that the first notice of appeal should be treated as a “premature” notice of appeal that “matures” upon entry of the amended judgment containing the restitution amount, thus obviating the need to file a second notice of appeal.

It addresses a split in the federal circuits about jurisdiction over appeals from so-called deferred restitution judgments. Here’s the background:At Manrique’s sentencing hearing, the district judge imposed sentence and, under the Mandatory Victim Restitution Act, 18 U.S.C. § 3664(d)(5), ordered restitution, but deferred setting the precise amount. The final judgment imposing sentence deferred entry of the precise restitution amount, stating it would be contained in an amended judgment.

The panel agreed and reversed and remanded. It held that under 18 USC 3664, all criminal restitution orders must be supported by evidence of actual loss. Here, the government did not provide any evidence to support its theory that the cell phones Ferdman fraudulently obtained caused a drop in sales, a kink in supply chain or any other damages beyond replacement cost.

Contrary to the district court's belief, it had the authority to modify its restitution order to change the recipient for the benefit of the minor whom Mr. Grigsby had sexually exploited for child porn purposes. The authority arises from 18 U.S.C. § 3664(k) & 3572(d)(3), which allow modification when financial circumstances change. Mr. Grigsby alleged the child's mother, who received the restitution payments for the child, was neglecting the child to the point where the state had taken custody.