Court Error – Restitution

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7^th Circuit Court of Appeals

Case Name: United States of America v. Franklin V. Fennell

Case No.: 18-1969

Officials: KANNE, HAMILTON, and ST. EVE, Circuit Judges.

Focus: Court Error – Restitution

In federal criminal law, the amount of restitution for a fraud conviction depends on the victims’ actual losses, regardless of whether the defendant intended larger losses. When imposing restitution, the district court must say enough about its loss calculation, under all the circumstances, to permit meaningful review. One mechanism for meeting those requirements is 18 U.S.C. § 3664(a), which permits the court to order a detailed accounting by a probation officer.

Here, the evidence at Franklin Fennell’s trial showed an actual loss amount of $110,600 in kickbacks that he and a codefendant received for steering government contracts to a favored bidder. The presentence investigation report recited that amount as restitution, which the district court imposed, but the court referred to that amount orally as the “intended” loss. Fennell now seeks a remand, insisting that § 3664(a) requires that the presentence report contain its own detailed accounting rather than incorporate the trial evidence by reference, and that the district court erred by imposing restitution for intended loss instead of actual loss. We affirm. There was no plain error in the district court’s restitution calculation, and despite the mistaken oral reference to intended loss, the record shows beyond reasonable dispute that the amount awarded was the victim’s actual loss.

Affirmed

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