Yair Berkowitz, together with a host of others, participated in a massive tax fraud scheme with the object of filing false tax returns in the names of over 3,000 unknowing, incarcerated, or deceased people. The scheme netted over $10 million in refund payments from the IRS and state tax agencies before it was discovered. Yair
I. Background
A. Facts
The Berkowitz family has had run-ins with the IRS before. Yair’s father, Marvin, has a long history of running schemes to defraud state and federal tax authorities.
The scheme prosecuted in this case began in 2003 and was broken up in 2009. Fifty-eight different individuals received federal or state refund checks as part of the conspiracy. Participants in the fraud filed more than 3,000 false state and federal tax returns claiming refunds. For his part, Yair received pre-addressed, prestamped tax returns from Marvin in Israel. Yair mailed the returns from various U.S. postal codes so as not to arouse IRS suspicion. He controlled accounts where the proceeds were deposited and addresses where checks were mailed. When refund checks issued, Yair traveled to various locations to pick them up from and make cash payments to co-conspirators. He
In 2006, IRS agents interviewed Yair and told him that money he had received from Marvin was obtained by fraud. Yair denied any knowledge of the scheme at this time. He proceeded to ratchet down his direct involvement, as did the dozen or so people he was directly controlling in the collection of the fraudulent returns. But Yair continued to receive money from Marvin and other co-conspirators after 2006 and met with an undercover IRS agent about expanding the fraud in early 2007. The scheme was eventually uncovered, leading to the arrest of Yam (along with many co-conspirators) on August 3, 2009.
B. Procedural History
A grand jury returned a fifty-one count indictment on August 4, 2009, charging Yair, Marvin, and nine others with conspiracy to defraud the IRS, wire fraud, and mail fraud. Yair was named in several counts, but pleaded guilty only to Count 51, wire fraud. The conduct alleged in this count was a February 12, 2006 PayPal transfer of $250 from an account in Chicago to a different account in Minneapolis. In the plea agreement, Yair accepted responsibility for his part in the conspiracy and acknowledged his awareness of his father’s fraudulent activities. The district court sentenced Yair to sixty-two months imprisonment, followed by two years of supervised release. Yair challenges neither of these punishments, only the $4,069,091.96 in restitution imposed by the court.
The district court calculated the restitution award using loss figures provided in the PSR. The Government argued that the intended losses from the overall scheme were roughly $65 million and that the actual losses were around $10 million. But the PSR recommended — and the government agreed — to narrow these amounts for Yair. The PSR concluded that when the universe of losses was limited to the dozen or so people that Yair interacted with or directed regularly in the course of the scheme, the intended loss amount was around $19 million and the actual loss $4,069,091.06.
Yair objected to these amounts at sentencing, both for the purposes of calculating his offense level and for fixing the restitution amount. He claimed that the loss amount was not reasonably foreseeable to him, an argument which the district court rejected after weighing the arguments from both sides. The court did not reweigh the evidence when it imposed restitution, however, because the analysis would have been duplicative of the calculations it already performed.
II. Discussion
Ordinarily, we would review the district court’s authority to issue a restitution order de novo and its calculation of restitution amount for abuse of discretion. United States v. Rand,
Federal courts enjoy no inherent power to order restitution — they may only do so where authorized by statute. Id. The relevant statute in this case is the Mandatory Victims Restitution Act of 1996 (“MVRA”). 18 U.S.C. § 3663A. As the name suggests, this law requires the district court to award restitution in certain circumstances. Restitution under the MVRA functions as a civil remedy “en-graft[ed] ... onto a criminal statute,” and is therefore calculated by looking solely to the victim’s loss and not to the perpetrator’s ability to pay. United States v. Martin,
The MVRA specifically defines the “victims” to whom restitution must be made:
[A] person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.
§ 3663A(a)(2). Under certain circumstances, the government can be a victim under the MVRA. United States v. Sapoznik,161 F.3d 1117 , 1121 (7th Cir.1998).
Yair contends that the restitution order is excessive. First, he argues that it charges him for the conduct of others, instead of limiting the award to losses attributable to his specific conduct in furtherance of the scheme. But notable in the statutory language is the expansiveness of restitution authorized for crimes involving a' “scheme, conspiracy, or pattern.” An individual convicted of such a crime is jointly and severally liable for the losses caused by his or her co-conspirators. See, e.g., United States v. Dokich,
Yair next argues that the district court’s restitution award lacked statutory authority because the judge did not make sufficient factual findings to support it. We disagree. It is true that the court engaged in no protracted discussion of restitution at sentencing and that it adopted the findings of the PSR. But Yair overlooks the court’s earlier discussion of the same figures when it was calculating Yair’s offense level.
In compiling a PSR for crimes causing a loss, the probation office calculates both the intended loss and the actual loss caused by the scheme, and offenders are sentenced to imprisonment based on the greater of these amounts.
III. Conclusion
We find no error in the district court’s calculation of the restitution amount, and therefore AFFIRM Yair’s sentence.
Notes
. Several members of the Berkowitz family were involved in this tax fraud scheme, so we refer to them by their first names.
. In 2003, authorities learned of another of Marvin's schemes and he fled to Israel to avoid prosecution. Marvin, Yair's brother Yehuda, and several others were indicted for tax fraud conspiracy in that case.
. District courts can get into trouble if they rely unquestioningly on these figures, however, because the loss amount for sentencing considers not just the conduct underlying the conviction but “relevant conduct” accompanying it. Calculations for restitution are not so permissive. Rand,