New & Noteworthy Court Opinion: United States v. Fair, — F.3d —, No. 09-3120, 2012 WL 5457679 (D.C. Cir. Nov. 9, 2012)

Defendant, convicted of criminal copyright infringement and mail fraud for the sale of pirated copies of outdated software, appealed the district court’s order of almost $750,000 in restitution to the corporate victim under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A.  Defendant argued that the district court abused its discretion when it issued the award based on evidence of defendant’s gain from the unlawful sales as opposed to the victim’s actual loss as a result of the pirated sales.  The United States Court of Appeals for the District of Columbia agreed and held that the district court abused its discretion.  In reaching its holding, the court examined relevant case law from other federal circuits and concluded that restitution under the MVRA must be based on the victim’s actual, provable loss rather than defendant’s gain.  The court found that the government had failed to meet its burden of proving the victim’s actual loss because the only evidence it submitted was a tally of defendant’s sales and “unsubstantiated, generalized assertions of government counsel” regarding the victim’s lost sales.  The court also concluded that the government was not entitled to an order reopening the sentencing to offer new evidence of the victim’s actual loss.  The court explained that the case presents no special circumstances that justify allowing the government to have “a second bite at the apple” when the government’s burden to prove actual loss under the MVRA was well established before sentencing and it failed to offer such evidence.  Accordingly, the court vacated the restitution order and declined to remand for a new sentencing.

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