809 F. Supp. 2d 89
E.D.N.Y2011Background
- Remand from the Second Circuit to resentence on restitution only after Catoggio vacated the MVRA restitution portion.
- Court previously imposed $80 million restitution based on plea and PSR; victims identified later in CPAG Restitution Report showing $190,339,436.65 loss.
- Restitution order targeted victims of Ageloff’s pump-and-dump securities fraud against many individual investors.
- Catoggio instructed to identify victims and actual losses and incorporate findings into a new restitution order.
- Court finds unsold Hanover Sterling house stocks have zero value for restitution purposes; leaves rest of losses as identified or reasonably estimated.
- Florida conviction for money laundering, pled while in federal custody, underscores ongoing attempt to avoid restitution and supports continued enforcement of MVRA obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| MVRA identification requirement before restitution | Catoggio allows proceeding where victims are identifiable | Identification may be impracticable due to complexity | Identified victims and losses must be incorporated before restitution; remand limited to incorporating findings |
| Valuation of unsold house stocks | Remains from government data support losses | Residual value could offset losses | Value of unsold house stocks is zero for restitution purposes |
| Amount of loss and use of reasonable estimates | Full losses should be restored; estimates permissible | Demand for precision is essential | Loss figures may be reasonably estimated; full amount of victims’ losses to the extent ascertainable should be restored |
| Delay in restitution proceedings and due process/90-day rule | Delay prejudices defendant; warrants dismissal | Delay not prejudicial; harmless error | Delay did not prejudice Ageloff; dismissal denied; restitution remains mandatory under MVRA |
| Post-remand relief—plea withdrawal and other motions | Remand does not authorize broad relief | Rule 11 and 2255 avenues may apply to reopen plea | denied; restitution remand limited to MVRA issues; no withdrawal of plea |
Key Cases Cited
- United States v. Catoggio, 326 F.3d 323 (2d Cir. 2003) (remand for restitution identification and procedures; victims identifiable; MVRA applies to full losses)
- United States v. Qurashi, 634 F.3d 699 (2d Cir. 2011) (MVRA permits prejudgment interest to be included to restore victims fully)
- United States v. Boccagna, 450 F.3d 107 (2d Cir. 2006) (MVRA value is flexible; court may determine value to serve statutory purposes; focus on restoring victims)
- United States v. Stevens, 211 F.3d 1 (2d Cir. 2000) (90-day identification rule can be harmless error if no prejudice to defendant)
- United States v. Ray, 578 F.3d 184 (2d Cir. 2009) (speedy-trial and due-process considerations regarding delay in sentencing)