United States v. Rutkoske, 456 F. App'x 36

Rutkoske was convicted by a jury of one count of securities fraud and conspiracy to commit securities fraud, commercial bribery, and wire fraud, following a two-week trial.
The district court sentenced him to 108 months and ordered restitution of $12,057,928 based on losses from the victims’ transactions with Rutkoske’s brokerage firm.
On appeal, the Second Circuit affirmed the conviction but remanded for redetermination of loss for sentencing in light of potential market forces contributing to losses.
On remand, the district court found no loss amount for calculating the Guidelines range but ordered restitution equal to hidden, excessive commissions charged to victims ($1,616,415).
Rutkoske challenged the restitution calculation, arguing the district court failed to apply a loss enhancement for sentencing under U.S.S.G. § 2B1.1(b) and that restitution should not be based on hidden commissions.
The appellate court affirmed the district court, addressing distinctions between MVRA restitution and Guidelines loss, the basis for restitution, and the mandate rule.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Relation of loss for sentencing vs restitution	Rutkoske contends loss for Guidelines should govern restitution	Rutkoske argues different loss calculations apply to guidelines and MVRA restitution	Different calculations permissible; MVRA and Guidelines losses are distinct
Use of hidden commissions to measure restitution	Rutkoske challenges recovery based on hidden commissions	The district court appropriately used hidden commissions to reflect fraud	Restitution based on hidden commissions is proper
Mandate rule applicability	Rutkoske says mandate rule bars reconsideration using commissions	Rule does not bar because issue not decided on mandate	Mandate rule does not bar this restitution approach
Loss enhancement under § 2B1.1 for restitution	District court erred by not applying loss enhancement for Guidelines	Loss enhancement relates to sentencing, not to restitution	Separate treatment of loss for sentencing and restitution; no error in approach

United States v. Lucien, 347 F.3d 45 (2d Cir. 2003) (abuse-of-discretion standard for restitution)
United States v. Rossi, 592 F.3d 372 (2d Cir. 2010) (per curiam; limits on scrutinizing restitution decisions)
United States v. Byors, 586 F.3d 222 (2d Cir. 2009) (loss for Guidelines vs victim harm distinction)
United States v. Germosen, 139 F.3d 120 (2d Cir. 1998) (distinction between culpability and victim injury; restitution vs loss)
United States v. Catherine, 55 F.3d 1462 (9th Cir. 1995) (sentencing loss vs restitution calculations differ)
United States v. Pescatore, 637 F.3d 128 (2d Cir. 2011) (MVRA restitution framework)
United States v. Martinez-Rios, 143 F.3d 662 (2d Cir. 1998) (burden of proof for restitution; standard of review)
United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002) (mandate rule scope and application)
Rutkoske I, United States v. Rutkoske, 506 F.3d 170 (2d Cir. 2007) (rejection of reflexive loss calculation; remand for loss determination)