Sentencing — restitution

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United States Court of Appeals

Criminal

Sentencing — restitution

Where stocks deposited with the court declined in value, the defendant cannot count as restitution their value on the date of deposit.

“The facts of Capos are similar to those here. The stocks Shah deposited fell in value. Shah doesn’t want to bear the loss even though he knew the stocks were declining and failed to take any action. Of course, Capos was a civil action involving a private loan and Illinois law, whereas this is a criminal case. So Capos is merely analogous, not controlling. But the analogy is apt. Shah did not give up all control over the securities deposited. It is true that the plea agreement authorized the Clerk to invest the funds in an interest bearing account. But that didn’t happen. And in any event, the order entered following the plea provided that ‘[i]f the deposits are made by depositing stock certificates, the Clerk of the Court shall hold such until further order of the Court.’ The defendants didn’t object to this treatment of the stock. Like Capos, Shah could have requested the court to sell the stock; indeed, the court practically invited him to do so to avoid further diminution in value of the securities. Shah deposited the stock because it was ‘doing well’ and he sought to capitalize on the continued appreciation. Otherwise, he could have, and likely would have, sold the stock and deposited cash instead. Contrary to the defendants’ claim that deciding this appeal against them will ‘result in a substantial deterrent to the much favored advance payment of restitution and be contrary to public interest,’ our decision will encourage criminal defendants to deposit cash rather than securities in the event they wish to avoid the risk of the market.”

Affirmed.

10-1184 U.S. v. Shah

Appeal from the United States District Court for the Central District of Illinois, Scott, J., Tinder, J.