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United States v. Marcello

April 6, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JAMES MARCELLO, JOSEPH LOMBARDO, FRANK CALABRESE, SR. PAUL SCHIRO, AND ANTHONY DOYLE, DEFENDANTS.



The opinion of the court was delivered by: Judge James B. Zagel

MEMORANDUM OPINION AND ORDER

The Government has moved for the imposition of restitution, pursuant to the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A (2000), against Defendants Frank Calabrese, Sr., James Marcello, Joseph Lombardo, Paul Shiro, and Anthony Doyle. The Government's revised restitution calculations, which account for the lost earning capacity of fourteen of the murder victims, indicate a total amount of $7,450,686.67.*fn1

Restitution in this case is mandatory under the MVRA. 18 U.S.C. § 3663A(a)(1), (c)(1)(A)(I) ("the court shall order . . . that the defendant make restitution to the victim of the offense" for "a crime of violence"). Under the MVRA:

[T]he term 'victim' means 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). If, as here, the victims of crimes of violence are deceased, restitution must be ordered to the victims' estates. § 3663A(a)(1). In the case of an offense resulting in bodily injury to a victim, the MVRA provides for restitution to "the victim for income lost by such victim as a result of the offense," which amount shall represent "the full amount of each victim's losses . . . without consideration of the economic circumstances of the defendant." § 3663A(b)(2)(C); § 3664(f)(1)(A).

The Government's restitution figures include the lost earning capacity for fourteen individuals, whose murders were among the those included in the charged conspiracy in this case. Defendants Calabrese, Sr. and Marcello contend that the MVRA does not allow for the lost future income of a murder victim to enter into the restitution calculation. They rely on

(1) Section 3663A(b)(3) of the MVRA, which provides: "in the case of an offense resulting in bodily injury that results in the death of the victim" the order of restitution shall require defendant to "pay an amount equal to the cost of necessary funeral and related services"; and

(2) United States v. Fountain, 768 F.2d 790, 802 (7th Cir. 1985) (holding "that an order requiring a calculation of lost future earnings unduly complicates the sentencing process and hence is not authorized by the Victim and Witness Protection Act-unless, to repeat a vital qualification, the amount is uncontested, so that no calculation is required.").

First, Fountain construed a different statute, the Victim and Witness Protect Act, than the statute in issue here. The VWPA specifically authorized the district court to decline to order restitution if "the complication and prolongation of the sentencing process resulting from the fashioning of an order of restitution . . . outweighs the need to provide restitution." 18 U.S.C. § 3579(d), recodified as 18 U.S.C. § 3663(a)(1)(b)(ii). The Court of Appeals explicitly relied on this provision in reaching its decision in Fountain. 768 F.2d at 802. The post-Fountain MVRA, however, made the "complexity exception" inapplicable to crimes of violence; indeed the exception only currently applies to offenses against property, offenses violating the Controlled Substance Act, and offenses committed by fraud or deceit. 18 U.S.C. § 3663A(c)(3)(B); United States v. Cienfuegos, 462 F.3d 1160, 1168 (9th Cir. 2006).

Second, subsequent cases interpreting the language of the MVRA have consistently imposed restitution for the lost income of murder victims. United States v. Douglas, 525 F.3d 225, 253 (2d Cir. 2008); United States v. Serawop, 505 F.3d 1112, 1122, 1125 (10th Cir. 2007); Cienfuegos, 462 F.3d at 1164; United States v. Oslund, 453 F.3d 1048, 1063 (8th Cir. 2006); United States v. Checora, 175 F.3d 782 (10th Cir. 1999); United States v. Lee, 108 F.3d 1370 (2d Cir. 1997); United States v. Roach, No. 2:06CR4, 2008 WL 163569, at *4 (W.D.N.C. Jan. 16, 2008). The reasoning set forth by the Ninth Circuit in Cienfuegos is particularly persuasive:

It would be illogical to assume that the ultimate death of a person who suffered bodily injury eliminates restitution for lost income.

To not award restitution for future lost income would lead to a perverse result where murderers would be liable for markedly less in restitution than criminals who merely assault and injure their victims. 462 F.3d at 1164. In addition, "[r]eading the MVRA to exclude restitution for future lost income for homicide victims would conflict with Congress's stated intent to force offenders to 'pay full restitution to the identifiable victims of their crimes.'" Id. at 1165 (citing S.Rep. No. 104-179, at 12 (1996), as reprinted in 1996 U.S.C.C.A.N. 924, 925. "Only by making restitution for future lost income can the perpetrator of a homicide fully pay the debt owed to the victim and to society." Id. (citing R. Posner, Economic Analysis of Law 176-81 (3d ed. 1986)).

Accordingly, the restitution in this case shall be equal to the amount of future income of the murder victims, based on reasonable assumptions concerning each victim's future earnings. United States v. Roach, No. 2:06CR4, 2008 WL 163569, at *9 (W.D.N.C. Jan. 16, 2008) (restitution awarded for lost income based on reasonable assumptions that murder victim would work 40 hours per week for 50 weeks per year until age 65 at state minimum wage and receive two percent increase per year).

Defendants next argue that they cannot be held liable to pay restitution to murder victims for whom the jury did not reach a verdict (i.e., Henry Cosentino, Paul Haggerty, John Mendell, Vincent Moretti, Donald Renno, Nicholas D'Andrea, and Emil Vaci). Defendants are correct that a conviction is a condition precedent for a restitution judgment. 18 U.S.C. § 3663A(a)(1). But that does not mean that the restitution amount can only be based upon losses for which there was a conviction. The MVRA authorizes restitution for non-conviction losses and harms to victims that occurred in the course of a charged scheme or conspiracy. When, as here, the offense of conviction involves as an element a "scheme, conspiracy, or pattern of criminal activity," the restitution order may include acts of related conduct for which the defendant was not convicted. 18 U.S.C. § 3663A(a)(2) (a victim includes "any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern."); United States v. Belk, 435 F.3d 817, 819-20 (7th Cir. 2006) (upholding calculation of restitution based on total harm caused by defendant's criminal conduct as opposed to solely on the harm resulting from the eight mailings for which defendant was convicted); United States v. Rand, 403 F.3d 489, 493 (7th Cir. 2005) (holding restitution order could hold ...


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