United States v. Berkowitz
2013 U.S. App. LEXIS 21465
| 7th Cir. | 2013Background
- Yair Berkowitz participated in a tax-fraud scheme using dead, incarcerated, or deceased victims to file false returns; the scheme yielded over $10 million in refunds before discovery.
- The scheme began in 2003 and involved 58 victims and more than 3,000 false federal/state tax returns.
- Yair received pre-stamped returns and controlled accounts for deposit and dispersal of proceeds; he personally collected refunds and routed them to Marvin in Israel.
- Yair pleaded guilty to one count of wire fraud; sentencing included restitution of $4,069,091.96 and a prison term, joint and several with co-defendants.
- The district court relied on the PSR’s actual loss for restitution; MVRA governs restitution and compels it based on victim losses, not the defendant's ability to pay.
- This appeal challenges whether restitution properly covered co-conspirator losses and whether the district court made adequate factual findings; the court affirms the restitution calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does MVRA authorize restitution for losses caused by co-conspirators? | Yair argues liability should be limited to his own conduct. | Yair contends liability should exclude others' conduct; yet MVRA covers scheme-related losses. | Yes; co-conspirator losses may be included if linked to the defendant’s conduct. |
| Did the district court have statutory authority and adequate findings for the restitution order? | Yair asserts lack of statutory authority and insufficient factual findings. | Court relied on MVRA and PSR findings; no requirement to rehash findings at restitution. | Yes; statutory authority exists and sufficient findings were reviewed. |
| Was the restitution amount properly tied to actual loss rather than intended loss? | Yair claims the award overstates losses including non-foreseeable amounts. | Court appropriately used actual loss as the basis for restitution. | Yes; restitution matched actual loss, consistent with settled authorities. |
| Is plain-error review appropriate given the objections raised at sentencing? | Objections were non-specific, but argued the loss figures were too large. | The district court’s approach was reasonable; no new objections required reweighing. | Yes; plain-error review applies, but no reversible error found. |
Key Cases Cited
- United States v. Rand, 403 F.3d 489 (7th Cir. 2005) (restoration authority and standard of review for restitution deficits)
- United States v. Martin, 195 F.3d 961 (7th Cir. 1999) (MVRA limits restitution to victim losses, not perpetrator’s ability to pay)
- United States v. Sapoznik, 161 F.3d 1117 (7th Cir. 1998) (government can be a victim under MVRA; scope of victims)
- United States v. Dokich, 614 F.3d 314 (7th Cir. 2010) (co-conspirator liability and restitution linked to scheme losses)
- United States v. Artley, 489 F.3d 813 (7th Cir. 2007) (loss calculations in PSR and relation to restitution")
- Hughey v. United States, 495 U.S. 411 (1990) (loss calculations must reflect actual conduct through offense)