United States v. Pescatore
2011 U.S. App. LEXIS 4065
| 2d Cir. | 2011Background
- Pescatore was convicted of operating chop shops (18 U.S.C. § 2322) and extortion (18 U.S.C. § 1951); restitution was no less than $3 million and forfeiture of $2.5 million plus real estate were agreed.
- Plea Agreement provided DOJ restoration discretion; AUSA’s recommendation to grant restoration did not bind the DOJ; final restoration decision rested with DOJ.
- At sentencing, PSR and Plea Agreement conflicted about restitution timing and amount; the court ultimately ordered $3 million restitution due by end of 2009.
- Amended judgment appended PSR Loss Chart identifying 80 victims with total losses of $2,559,611.79, but the order in the Judgment remained $3 million.
- Pescatore moved for restoration and/or to modify restitution; DOJ denied restoration and did not modify the $3 million restitution.
- Pescatore asserted the Judgment overstated losses and sought immediate relief, arguing plain error and that various delays should shield him from full payment; the district court denied relief and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restoration of forfeited assets to satisfy restitution was required. | Pescatore contends restoration was compelled by law or policy. | Government argues restoration discretionary and properly denied. | Restoration not compelled; within DOJ discretion and properly denied. |
| Whether the amended Judgment reduced restitution below $3 million to match losses in the PSR. | Pescatore argues the Judgment, as amended, reduced the amount to $2,559,611.79. | Government contends the Judgment remained $3 million; amendment identified victims but did not reduce liability. | Amended Judgment did not reduce the $3 million restitution obligation. |
| Whether the PSR's loss total supports maintaining the $3 million restitution. | Losses totaled less than $3 million; restitution should reflect actual losses. | Loss total supports $3 million per the Judgment and MVRA requirements. | Record-supported loss total did not warrant immediate reduction; the $3 million stands pending further proceedings. |
| Whether Pescatore is entitled to immediate relief from paying $3 million due to plain error. | Pescatore seeks immediate relief because the losses were less than $3 million and due to plain error. | Government contends no stay; failures to timely appeal/comply prevent immediate relief. | No immediate relief; conditions for plain-error relief not met; order remains, with remand for further proceedings. |
| What remedies exist on remand regarding restitution, interest, and penalties if the $3 million obligation is not exhausted by losses. | If MVRA losses plus interest/penalties are less than $3 million, a refund should be available. | Court should calculate interest and penalties; restitution not to exceed losses absent refunds. | Remand for calculating payments, interest, penalties, and potential refunds consistent with MVRA. |
Key Cases Cited
- Hughey v. United States, 495 U.S. 411 (1990) (restitution as compensation and MVRA purpose)
- Reifler, 446 F.3d 65 (2d Cir. 2006) (MVRA limits on restitution to actual losses)
- Boccagna, 450 F.3d 107 (2d Cir. 2006) (MVRA focus on making victims whole)
- Nucci, 364 F.3d 419 (2d Cir. 2004) (MVRA guidance on intended restitution scope)
- Coriaty, 300 F.3d 244 (2d Cir. 2002) (statutory focus of restitution)
- Simmonds, 235 F.3d 826 (3d Cir. 2000) (MVRA restitution purpose and scope)
- Maness v. Meyers, 419 U.S. 449 (1975) (requirement to comply with court orders absent a stay)
- United States v. United Mine Workers of America, 330 U.S. 258 (1947) (obey court orders until reversed on appeal)
- Gottesman, 122 F.3d 150 (2d Cir. 1997) (federal courts have no inherent power to order restitution)