United States v. Borino, 123 F.4th 233

Joseph Anthony Borino, former Executive National Marketing Director for Total Financial Group, Inc. (TTFG), pleaded guilty to misprision of a felony (wire fraud) for his role in marketing and concealing a fraudulent employee health benefits scheme (the “Classic 105 Program”).
The Classic 105 Program purported to provide supplemental health benefits funded by third-party loans but, in reality, involved no actual loans or insurance, and all contributions were paper transactions; only administrative fees were collected and used for claims.
Between 2013–2017, TTFG collected over $25 million in administrative fees from 350 employer-clients and 4,000 employees, paying only a small fraction in claims; losses were ultimately attributable to fraudulent representations.
Borino was sentenced to one year and one day in prison and ordered to pay $21 million in restitution (jointly and severally with TTFG owner Denis Joachim) under the Mandatory Victims Restitution Act (MVRA).
On appeal, Borino challenged the restitution order on three grounds: (1) MVRA does not apply to misprision of a felony; (2) no actual pecuniary loss was proven for victims; (3) restitution amount was not directly/proximately caused by his offense.

Issue	Borino's Argument	Government's Argument	Held
Applicability of MVRA	Misprision of a felony is not an offense “by fraud or deceit” under MVRA.	Misprision conceals an underlying wire fraud (which is by deceit), so MVRA applies to facts of this case.	MVRA applies based on underlying wire fraud; no plain error.
Actual Loss Requirement	Government failed to prove actual pecuniary loss; tax savings offset any loss.	Fees paid (less small claims) are actual loss; any tax offsets speculative and not supported.	Fees collected less claims = loss; no entitlement to offset for supposed tax savings.
Direct and Proximate Cause	Restitution order covers losses not directly/proximately caused by his acts; limited to three cited concealments.	His multi-year, continuous concealments as marketing head enabled the scheme; loss caused by his ongoing conduct during the charged period.	Restitution proper; Borino's ongoing concealments justified award for the full period.

United States v. Williams, 993 F.3d 976 (5th Cir. 2021) (wire fraud qualifies as “offense by fraud or deceit” for MVRA applicability)
United States v. Mahmood, 820 F.3d 177 (5th Cir. 2016) (“actual loss” under MVRA means pecuniary loss directly and proximately caused by offense)
United States v. Klein, 543 F.3d 206 (5th Cir. 2008) (actual loss calculation must offset legitimate, non-fraudulent value provided)
Hughey v. United States, 495 U.S. 411 (1990) (outer limits of restitution are losses caused by conduct underlying the offense of conviction)
United States v. Maturin, 488 F.3d 657 (5th Cir. 2007) (MVRA restitution scope and causation requirements)