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National Crime Victim Law Institute

United States v. Murray, — F.3d —, No. 11–20622, 2012 WL 5330889 (5th Cir. Oct. 30, 2012).

November 13, 2012

Defendants, separately convicted of various federal fraud charges arising out of a Ponzi scheme, appealed the district court’s order reopening their sentences and awarding about $17 million in restitution to the victims under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, more than six months after final judgments had been entered.  Defendants argued that the trial court lacked authority to issue the restitution orders.  The United States Court of Appeals for the Fifth Circuit agreed and held that the district court exceeded its authority.  In reaching its holding, the court examined 18 U.S.C. § 3663A(c)(3), a provision that exempts property offense cases from mandatory restitution where:  (A) “the number of identifiable victims is so large as to make restitution impracticable”; or (B) “determining complex issues of fact … would complicate or prolong the sentencing process” such that “the need to provide restitution to any victim is outweighed by the burden on the sentencing process.”  The court concluded that when a district court finds, as it did here, that § 3663A(c)(3) applies, then restitution was not mandatory under the MVRA and the statute does not authorize the reopening of a final judgment for the purpose of adding an order of restitution.  The court distinguished the United States Supreme Court’s decision in Dolan v. United States, 130 S. Ct. 2533 (2010), stating that  “[t]he Supreme Court did not discuss § 3663A(c)(3) in the Dolan case, and for good reason: The defendant in Dolan ‘pleaded guilty to a federal charge of assault resulting in serious bodily injury,’ rather than an offense against property.”