Sentencing Guidelines and Restitution

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7^th Circuit Court of Appeals

Case Name: United States of America v. Evelyn Johnson

Case No.: 18-1313

Officials: FLAUM, EASTERBROOK, and BRENNAN, Circuit Judges.

Focus: Sentencing Guidelines and Restitution

After pleading guilty to preparing false tax returns for her clients, 26 U.S.C. §7206(2), Evelyn Johnson was sentenced to 18 months in prison, to be followed by one year’s supervised release. The judgment includes $79,325 in restitution—the amount that Johnson’s clients unlawfully avoided paying (with respect to the counts of conviction) that had not been collected from the taxpayers before sentencing. Johnson does not contest her convictions or the length of her sentences. But she says that the prosecution should have told the judge how much more it might collect from her clients, which could affect how much she owes in restitution.

Johnson contends that the amount received from the taxpayers is exculpatory material that should have been revealed under Brady v. Maryland, 373 U.S. 83 (1963). Yet the collections were not concealed. The presentence report showed the court and Johnson that the United States already had collected substantial sums (the original loss figure exceeded $150,000) and was trying to obtain from taxpayers the rest of what they should have paid in the first place. Johnson was free to ask how much more had been collected by the date of sentencing but did not do so. Brady does not apply when information is available for the asking. See, e.g., United States v. Morris, 80 F.3d 1151, 1170 (7th Cir. 1996); United States v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990).

The restitution statute, not the Constitution, determines the prosecution’s duty—and the duty is one of credit against the judgment, not of disclosure during the sentencing hearing. The $79,325 figure reflects taxes still outstanding because of Johnson’s fraud. But the parties disagree about whether tax collections are credited against that award.

Johnson likely wants an elaborate definition, rather than deletion of this protection, but the history of tort law shows that any effort to define “reasonable” is a fool’s errand. In United States v. Kappes, 782 F.3d 828, 860–62 (7th Cir. 2015), we recommended that district judges add the word “reasonable” to another condition (the one requiring defendants to submit to searches), so that probation officers could not intrude without justification into personal lives. Having deemed the word “reasonable” the solution to a problem in Kappes, we are hardly going to declare now that the word must be removed from all conditions of supervised release. Johnson’s remaining objections do not require separate discussion.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Derek oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.