United States v. Jim Dial
705 F. App'x 250
| 5th Cir. | 2017Background
- Jim Dial, former CEO of Grifco, pleaded guilty to conspiracy to commit wire fraud for disseminating false information to inflate stock prices and was sentenced to 60 months and ordered to pay restitution jointly and severally with co-defendants to 317 victims totaling $7,388,093.43.
- The Government initially proposed the $7.388M restitution based on 317 victim impact statements; defendants contested the amount and sought reconsideration, asserting inadequate opportunity to challenge individual claims and that some statements lacked supporting documentation.
- This Court vacated the first restitution order and remanded for a hearing because the record lacked the materials relied on by the district court; the district court then supplemented the record with the 317 victim statements and a PSR addendum by probation confirming the $7.388M figure.
- Dial did not file written objections to the PSR addendum; at the remand hearing defense counsel reiterated prior objections but did not raise specific challenges to particular victim claims or submit proposed findings in the allotted time.
- The district court adopted the PSR addendum and issued a restitution order for $7,388,039.43; Dial appealed, raising claims that the award relied on unaudited victim statements and miscalculated awards for eight victims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility/reliance on unaudited victim impact statements | Victim statements on standardized sworn forms provide adequate evidentiary basis; Government met initial burden | Dial: 39 statements lacked supporting documentation and thus could not support restitution | Court: No plain error; district may rely on sworn victim statements unless defendant rebuts them by evidence (per Sharma/Scher) |
| Specific calculation errors for eight victims (offsets, temporal scope, consequential losses) | Probation/Gov. applied proper offsets and temporal limits; calculations reasonable based on statements | Dial: several awards failed to offset stock value, included post-conspiracy purchases, paper losses, or consequential damages | Court: Even assuming some errors, Dial failed to preserve objections and did not show plain error affecting fairness; no relief granted |
| Waiver/forfeiture of appellate challenge | Gov.: Dial abandoned objections by not submitting written challenges to PSR addendum | Dial: Counsel repeatedly re-urged prior objections and did not intentionally relinquish rights | Court: No waiver; review limited to plain-error because specific objections were not raised below |
| Whether restitution exceeded MVRA statutory scope/maximum | Gov.: Restitution compensates victims for direct losses within indictment’s temporal scope | Dial: Award exceeds MVRA because some losses lack evidentiary support or fall outside permitted losses | Court: MVRA limits restitution to actual losses; here Government met burden and Dial failed to rebut and thus award complied with MVRA under plain-error review |
Key Cases Cited
- Puckett v. United States, 556 U.S. 129 (plain-error standard and relief)
- Olano, 507 U.S. 725 (waiver vs. forfeiture and plain-error framework)
- United States v. Sharma, 703 F.3d 318 (5th Cir.) (district may rely on victim impact statements but must resolve disputes by preponderance; cannot unquestioningly adopt unsupported PSR figures)
- United States v. Scher, 601 F.3d 408 (5th Cir.) (government’s burden to prove losses; defendant must rebut with evidence)
- United States v. Harris, 702 F.3d 226 (5th Cir.) (mere objections insufficient to rebut supported facts)
- United States v. Inman, 411 F.3d 591 (5th Cir.) (restitution limited to conduct underlying conviction and indictment’s temporal scope)
- United States v. Onyiego, 286 F.3d 249 (5th Cir.) (MVRA excludes consequential damages)
- United States v. Olis, 429 F.3d 540 (5th Cir.) (paper losses may not constitute actual compensable loss)