United States v. Berman

District Court, District of Columbia

United States v. Berman

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES,

v. No. 20-cr-00278 (TNM) KEITH BERMAN,

Defendant.

MEMORANDUM ORDER*

The Court must determine the amount of restitution that Defendant Keith Berman owes

the victims of his fraud. Berman challenges the Government’s proffered sum on two grounds.

First, he insists that one of the tendered award recipients is not a “victim” under the Mandatory

Victims Restitution Act. On that front, the Court agrees. This would-be recipient was not

directly harmed by the conduct underlying Berman’s offense of conviction. Second, Berman

argues that the Government failed to prove that various stock losses happened during the fraud

period. There, the Court disagrees. The Victim Impact Statements establish that the challenged

stock purchases were made relying on Berman’s misrepresentations, indicating they were

purchased during the fraud period. Finally, the Court determines that Berman’s precarious

financial condition renders him unable to pay the full amount of the restitution order

immediately. It thus instructs Berman to pay a reduced monthly sum.

I.

In late 2023, Keith Berman pled guilty to three felonies: securities fraud, wire fraud, and

obstruction of Securities and Exchange Commission (“SEC”) proceedings. Superseding

Indictment, ECF No. 19, at 20–22; Def.’s Stmt. Supp. Guilty Plea, ECF No. 170 (“Def.’s

* An unredacted version of this Order was filed under seal on April 30, 2025.

1 Stmt.”). The charges stemmed from Berman’s fraudulent conduct as CEO of his publicly traded

company, Decision Diagnostics Corp. Superseding Indictment ¶ 3; Def.’s Stmt. at 3. In early

2020, Decision Diagnostics and its CEO were facing financial straits. Superseding Indictment ¶

9; Def.’s Stmt. at 3. The company’s blood-glucose monitoring and testing devices were not

bringing in the profits that Berman needed. Superseding Indictment ¶ 9. But the onset of the

COVID-19 pandemic brought about new business opportunities—and potential salvation.

Superseding Indictment ¶ 15; Def.’s Stmt. at 3. Berman believed he could restructure existing

technology to develop a groundbreaking device able to detect the rampant virus in the

bloodstream, known as “impedance” technology. Superseding Indictment ¶ 11 (“BERMAN

wrote an email in which he stated, ‘We have a lot at stake here . . . . [T]his coronavirus through

impedance is the story that will allow me to raise millions.”); Def.’s Stmt. at 3. He just needed a

little help—and he was willing to break a few rules to get it.

In the first frightening months of the pandemic, Berman issued a series of press releases

that greatly exaggerated the company’s progress developing the detection device. Superseding

Indictment ¶¶ 18–35; Def.’s Stmt. at 3. Though Berman’s technical advisors expressed serious

doubts as to the viability of using impedance technology to test for COVID-19, Berman did not

reveal this to the public. Superseding Indictment ¶¶ 17–19. Instead, he lauded Decision

Diagnostics’ “break-through” new technology, which he claimed the company had already

“perfected.” Id. ¶ 18. He announced that the technology “provided a positive or negative result

in 15 seconds based on a small finger prick blood sample,” and that since “government fast track

and waivers” had already begun, the test kits would be “commercial ready in summer 2020.” Id.

None of this was true. Decision Diagnostics had developed no test kit at all, much less

one that could accurately detect the virus in 15 seconds. Id. ¶ 19. Nor did Berman have any

2 evidence that the impedance method could actually work. Id. And the company had taken no

steps towards obtaining any government approvals for a product that remained entirely

speculative. Id.

Berman was undeterred. He continued to issue press releases representing that Decision

Diagnostics was “making significant progress toward bringing the product to market and would

be ready to manufacture and sell hundreds of millions of units in the first year.” Id. ¶ 20.

Behind the scenes, Berman’s vendor was repeatedly informing him that the proposed impedance

method was unlikely to be scientifically viable. Id. The vendor ultimately concluded and

communicated to Berman that the impedance method would never work. Id. ¶ 22. Still, Berman

did not disclose that devastating development to the market. Id. Instead, he continued to assure

investors that Food & Drug Administration (“FDA”) emergency approval was forthcoming. Id.

¶¶ 23–25, 28–31, 34 (“On or about April 23, 2020, BERMAN authorized a press release stating

that DECN had ‘completed discussions and have come to an understanding with the FDA on all

of the testing required . . . . We plan to engage a specialty reference laboratory to complete this

testing in the next 10 days. Testing should take about a week.”). In reality, the FDA approval

was stalled because the agency required clinical testing. Id. ¶ 31. But Decision Diagnostics

could not submit to testing because it lacked a prototype and the necessary insurance to conduct

reliable testing on human subjects. Id. ¶ 26.

In the meantime, the SEC had begun to investigate Decision Diagnostics and Berman.

Id. ¶ 36; Def.’s Stmt. at 3. In April 2020, the SEC suspended trading in the company’s stock due

to its concerns that Berman was materially misrepresenting the progress of its impedance

technology to investors. Superseding Indictment ¶ 49; Def.’s Stmt. at 3. Berman was

displeased. Pretending to be an independent shareholder of Decision Diagnostics, Berman

3 reached out to a contact (referred to as “Person 2” in the indictment) and directed the contact to

draft a letter to the SEC regarding the stock suspension. Superseding Indictment ¶ 53; Def.’s

Stmt. 3–4. The letter accused the SEC of unethical and inappropriate conduct against Decision

Diagnostics. Superseding Indictment ¶ 58; Def.’s Stmt. 4. Berman directed his contact to gather

signatures from the other shareholders before sending the letter to the agency. Superseding

Indictment ¶ 57; Def.’s Stmt. 4. Berman himself signed the shareholder letter using the alias

“Matthew Steinmann.” Superseding Indictment ¶ 58. But Berman would later tell law

enforcement agents that neither he nor his company had anything to do with the letter to the

SEC. Id. ¶ 64. Berman “engaged in this conduct to influence the SEC to end its investigation

into [Decision Diagnostics] and [himself.]” Def.’s Stmt. at 4.

All told, Berman’s misrepresentations caused his investors to lose at least hundreds of

thousands of dollars. Superseding Indictment ¶ 65; Restitution Notice, ECF No. 190, at 1

(Government calculating losses to shareholders over $1 million). Between early March 2020 and

the trading suspension, the company’s stock price had risen by over 1500%. Superseding

Indictment ¶ 37. After the fraud came to light, the stock became worthless. Id. ¶ 65.

In light of Berman’s guilty plea, the Court sentenced him to 84 months of incarceration

on the securities fraud and wire fraud counts, as well as 60 months on the obstruction charge, all

to run concurrently. Judgment, ECF No. 197, at 3. The incarceration terms were to be followed

by a term of 36 months of supervised release. Id. at 4. Before sentencing, the Government noted

its intent to seek restitution and calculated the amount it saw as due. Restitution Notice at 2.

4 The Government provided Victim Impact Statements from individual victims to corroborate the

total sum it was seeking from Berman. See ECF Nos. 206-1–206-26.

The Court reserved the determination of the amount resolution of restitution for a later

date. Minute Entry April 12, 2024; see also Dolan v. United States,

560 U.S. 605, 608

(2010)

(holding that a sentencing court may order restitution more than 90 days after sentencing when

the court “made clear prior to the deadline’s expiration that it would order restitution, leaving

open (for more than 90 days) only the amount.”). The Court now determines the amount of

restitution Berman owes his victims.

II.

Restitution here is required under the Mandatory Victims Restitution Act (“MVRA”),

which applies, among other offenses, to offenses “against property under [Title 18] . . . including

any offense committed by fraud or deceit . . . in which an identifiable victim or victims has

suffered . . . pecuniary loss.” 18 U.S.C. § 3663A(c)(1)(A)(ii), (c)(1)(B). A court must “order

restitution to each victim in the full amount of each victim’s losses as determined by the court

and without consideration of the economic circumstances of the defendant.”

18 U.S.C. § 3664

(f)(1)(A). The Government bears the burden of establishing the amount of loss suffered

by each victim by a preponderance of the evidence. In re Sealed Case,

702 F.3d 59, 66

(D.C.

Cir. 2012).

III.

Berman brings two challenges to the Government’s restitution calculation. First, he

insists that one of the alleged victims—A C —does not fall under the statutory definition

of that term and is thus not entitled to restitution. Second, he alleges that the Government has

5 Supreme Court interpreted a nearly identical precursor of the MVRA, the Victim and Witness

Protection Act (“VWPA”), which simply provided that “a defendant convicted of an offense”

may be ordered to “make restitution to any victim of such offense.”

Id.

at 415–16. Based on this

plain language, and other subsections that “link restitution to the offense of conviction,” Hughey

held that restitution was proper “only for the loss caused by the specific conduct that is the basis

of the offense of conviction.” Id. at 413, 416.

Things got slightly more complex shortly after Hughey was published. Over the next

several years, Congress enacted amendments to the VWPA.

104 Stat. 4863

;

110 Stat. 1229

. It

also passed the MVRA.

110 Stat. 1227

(codified at 18 U.S.C. § 3663A). All told, this

legislation harmonized the definition of “victim” under both statutes:

The term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

18 U.S.C. § 3663A(a)(2);

18 U.S.C. § 3663

(a)(2).

Several courts have understood these amendments to overrule Hughey where, as here, the

charged crime involves a scheme, conspiracy, or pattern of criminal activity. These courts see

the amendments as “expanding district courts’ authority to grant restitution” in such cases by

permitting restitution orders to “encompass[] losses that result from a criminal scheme or

conspiracy, regardless of whether the defendant is convicted for each criminal act within that

scheme.” United States v. Henoud,

81 F.3d 484, 488

(4th Cir. 1996). In other words, the

victim’s loss need not have resulted from the specific offense of conviction in scheme cases, so

long as the harm was “directly caused by the defendant’s criminal conduct in the course of the

scheme.” United States v. Kones,

77 F.3d 66, 70

(3d Cir. 1996); see also United States v.

7 DeSalvo,

41 F.3d 505, 515

(9th Cir. 1994) (holding that the amendments “effected a substantive

expansion of the previous law of restitution, in that it partially overruled the Supreme Court’s

restrictive interpretation of the VWPA in Hughey” and collecting cases that agree).

The D.C. Circuit has not directly considered whether Congress vitiated Hughey in

scheme cases. But it has hinted that it sees Hughey as surviving the amendments. In a recent

conspiracy case, the Circuit stressed that “restitution is limited to the actual, provable loss

suffered by the victim and caused by the offense conduct.” United States v. Bikundi,

926 F.3d 761, 791

(D.C. Cir. 2019).

Though the Circuit merely said this in passing without explicitly acknowledging it was

resolving a thorny question, following its direction is still sound. The post-Hughey amendments

merely expounded on the definition of “victim” in the statute. But Hughey itself grounded its

analysis in the statute’s admonition that “a defendant convicted of any offense” may be ordered

to “make restitution to any victim of such offense.” Hughey, 495 U.S. at 415–16 (emphasis

added). The Court stressed that “a straight-forward reading of the provisions indicates that the

referent of ‘such offense’ and ‘an offense’ is the offense of conviction.” Id. at 416. To the

Hughey Court, “the repeated focus in [the statute] on the offense of which the defendant was

convicted suggests strongly that restitution as authorized by the statute is intended to compensate

victims only for losses caused by the conduct underlying the offense of conviction.” Id.

Congress’ clarification of the meaning of “victim” did not change this offense-centric

thrust of the statute. United States v. Welsand,

23 F.3d 205, 207

(8th Cir. 1994) (“The

[amendment] mainly expands the definition of the term ‘victim.’ It does not explicitly extend the

contours of the word ‘offense.’”). Thus Hughey’s holding that restitution “be tied to the loss

caused by the offense of conviction” was not impacted by the later, victim-oriented amendments.

8 Hughey, 495 U.S. at 418. In other words, “[t]he amendment enlarged the group of victims who

would be entitled to restitution, but the triggering event—the offense of conviction—remains the

same.” United States v. Akande,

200 F.3d 136, 141

(3d Cir. 1999); see also United States v.

Goodrich,

12 F.4th 219

, 228 n.8 (2d Cir. 2021) (“Hughey was interpreting language (‘victim of

the offense,’) that remains intact in both the VWPA and MVRA. The post-Hughey amendments

. . . do[] not undermine the offense-oriented nature and language of either statute.”). Thus even

when a scheme, conspiracy, or pattern of criminal activity is at issue, restitution must derive

from the specific offense of conviction.

Still, the practical outcome of this fine legal distinction is not so detectable. That is

because when a scheme or conspiracy is an element of the offense of conviction, a court

considers actions taken pursuant to the scheme or conspiracy to be “conduct that is the basis of

the offense of conviction.” United States v. Bennett,

943 F.2d 738, 741

(7th Cir. 1991). In other

words, the court “looks through” the convicted offense when a scheme is an element of that

offense and considers the overt actions that were taken in furtherance of the scheme to satisfy the

Hughey rule. So, for example, in United States v. Brothers,

955 F.2d 493, 494

(7th Cir. 1992),

the Seventh Circuit rejected the defendant’s argument that “the district court had authority only

to require him to make restitution for the three checks he was convicted of improperly receiving

from the United States in counts one through three” of the indictment.

Id.

at 496–97. It stressed

that “the indictment alleged a mail fraud scheme from 1972 until 1987 to defraud the United

States.”

Id. at 497

. Thus, “[t]he district court had the authority to order restitution for the losses

caused by the entire fraud scheme, not merely for the losses caused by the specific acts of fraud

proved by the government at trial.”

Id.

Such a finding, the court held, was in line with Hughey,

and the amendments thereafter.

Id.

at 497 n.3. Several other courts have concluded the same.

9 See United States v. Pepper,

51 F.3d 469, 473

(5th Cir. 1995) (“Because a fraudulent scheme is

an element of [the] offenses of mail and wire fraud, actions pursuant to that scheme are conduct

underlying the offense of conviction.”); United States v. Manzer,

69 F.3d 222, 230

(8th Cir.

1995) (“Because a scheme or artifice to defraud is an essential element of the offenses of both

mail and wire fraud, a conviction for mail or wire fraud can support a conviction for a broad

scheme regardless of whether the defendant is convicted for each fraudulent act within that

scheme.”). But see United States v. Jewett,

978 F.2d 248, 251

(6th Cir. 1992) (limiting the

offense of conviction to the two mailings which served as the basis for the defendant’s mail fraud

conviction).

This Court agrees with that approach. Hughey instructs that “the loss caused by the

conduct underlying the offense of conviction establishes the outer limits of a restitution order.”

495 U.S. at 420. When an indictment describes a scheme in detail, then incorporates those

allegations into a charge that contains a scheme as an essential element, the artifice as a whole

necessarily underlies the offense of conviction. In other words, the offense of conviction

depends just as much on the artifice as it does on the discrete acts of fraud. See United States v.

Alston,

609 F.2d 531, 536

(D.C. Cir. 1979) (“Conviction for mail or wire fraud requires proof of

. . . two elements: (1) a scheme to defraud, and (2) use of the mails or wires for the purpose of

executing the scheme.”). Thus the Court may look to the plea agreement and indictment as a

whole to determine the appropriate bounds of a restitution award. United States v. Turino,

978 F.2d 315, 318

(7th Cir. 1992).

Where does that leave Berman and A C ? First, following Hughey, the Court

must define the contours of the offense of conviction. Second, under the MVRA, the Court must

10 query whether A C was “directly and proximately” harmed by that offense conduct. 18

U.S.C. § 3663A(a)(2).

When defining the specific offense of conviction, the Court must remain on guard—the

mere fact that other events are “factually connected” to the charged scheme “does not make them

legally relevant.” Akande,

200 F.3d at 143

. Indeed, “[t]he scheme concept is by its nature an

amorphous one, and may only support an award of restitution if it is defined with specificity.”

Bennett,

943 F.2d at 741

. Any other rule “would allow vague allegations of a scheme to support

restitution based on broad, unsubstantiated conduct.”

Id.

Reading the plea agreement and

indictment narrowly as such “places the burden on the Government, which has control over the

drafting of the indictment, to include language sufficient to cover all acts for which it will seek

restitution.” United States v. DeSalvo,

41 F.3d 505, 514

(9th Cir. 1994).

Berman has pled guilty to a scheme to defraud investors by issuing materially misleading

statements about the viability of his nonexistent impedance technology. Superseding Indictment

¶¶ 13–48. He also helped create a fake shareholder letter to pressure the SEC to drop its

investigation of Decision Diagnostics.

Id.

¶¶ 49–65. In doing so, Berman aimed to “artificially

increase and maintain the share price of [Decision Diagnostics] securities to enrich himself

through access to additional corporate funds and compensation.” Id. ¶ 13.

With the specific offense conduct in mind, the Court turns to whether A C was

“directly and proximately harmed” thereby. 18 U.S.C. § 3663A(a)(1). Courts have understood

this language “to impose cause-in-fact and proximate cause requirements, respectively.”

Goodrich,

12 F.4th at 229

. More, where, as here, the offense conduct is securities fraud, courts

look to causation standards in securities fraud cases to determine whether a party is a victim. See

United States v. Marino,

654 F.3d 310, 321

(2d Cir. 2011). Causation in such cases “has two

11 aspects, both which must be alleged and proven: transaction causation and loss causation.”

Emergent Cap. Inv. Mgmt., LLC v. Stonepath Grp., Inc.,

343 F.3d 189

, 196–97 (2d Cir. 2003).

Transaction causation “is established simply by showing that, but for the claimed

misrepresentations or omissions, the plaintiff would not have entered into the detrimental

securities transaction.”

Id. at 197

. Loss causation, in contrast “is the causal link between the

alleged misconduct and the economic harm ultimately suffered by the plaintiff” and requires that

the plaintiff show its losses were “a foreseeable consequence of any misrepresentation or

material omission.”

Id.

(cleaned up).

The Government has failed to establish transaction causation for Al C ’s losses.

See Goodrich,

12 F.4th at 231

(holding that the Government bears the burden of showing

causation for restitution awards). A C issued loans to Decision Diagnostics from

November 2007 through December 2015. ECF No. 206-26, at 6. The parties executed a loan

agreement in which Decision Diagnostics issued to A C common and preferred shares

in the company in exchange for A C ’s waiver of more than $2.8 million due under the

outstanding loans.

Id.

Under the terms of the parties’ agreement, within a year of issuance of

the preferred shares, A C could convert the preferred shares into common stock and sell

them. Id. at 6, 10. But when A C invoked that provision in 2019, Berman refused to

convert the shares. See id. at 10; see also id. at 202, ¶¶ 118–121. A C , acting through

its Receiver, filed suit against Decision Diagnostics in 2021 to compel conversion; the suit was

settled later that year. Id. at 10. The shares were later converted to common stock and available

to sell. Id. That said, A C insists that “the Receiver was unable to sell any of the Shares

12 during 2022 or at any time thereafter, because no broker would agree to sell any of the Decision

Diagnostics Shares held by A as a result of the Criminal Acts.” Id.

Just because A C ultimately lost money on its Decision Diagnostics stock does

not make it a victim under the MVRA. As Berman points out, A C did not acquire its

shares in Decision Diagnostics in reliance on the misrepresentations undergirding the offense of

conviction. A C ’s choice to forgive Decision Diagnostics’ debt in return for stock

options occurred before the scheme detailed in the indictment. Thus A C cannot show

that “but for the claimed misrepresentations or omissions, the plaintiff would not have entered

into the detrimental securities transaction.” In re Interbank Funding Corp. Sec. Litig.,

668 F. Supp. 2d 44

, 48–49 (D.D.C. 2009), aff’d,

629 F.3d 213

(D.C. Cir. 2010). In other words,

transaction causation fails where the misrepresentations occurred after the disadvantageous deal

was consummated. Thomas Lee Hazen, 4 Treatise on the Law of Securities Regulation § 12.92

n.8 (2023); accord Arst v. Stifel, Nicolaus & Co.,

86 F.3d 973, 977

(10th Cir. 1996). Because the

misrepresentations sketched in the indictment had no impact on A C ’s initial decision to

enter acquire Decision Diagnostics stock, A C was not “directly” harmed by the offense

conduct. See United States v. Farano,

749 F.3d 658, 666

(7th Cir. 2014) (Posner, J.) (holding

banks were not “victims” under the MVRA where they did not rely on fraudulent

misrepresentations); United States v. Stein,

846 F.3d 1135, 1153

(11th Cir. 2017) (“The

government also must show reliance to prove ‘but for’ causation for restitution purposes.”).

Thus A C was not a “victim” under the MVRA, and A C is not entitled to

13 restitution. The Court therefore subtracts A C ’s proffered award from the total

restitution sum.

B.

Turn now to Berman’s assertion that a substantial fraction of the Government’s asserted

losses is unsubstantiated. Def.’s Opp’n at 4–6. Berman challenges the calculation of awards to

seven victims. Id. at 5. He argues that several of the Victim Impact Statements and

accompanying transaction records fail to show that Decision Diagnostics stock purchases

occurred within the fraud period. Id.

The Government responds by reducing the amount for one victim, as “[t]he original

proposal inadvertently included certain transactions that occurred outside the period of the

scheme.” Gov.’s Reply, ECF No. 212, at 1. But it insists that the awards to the other six victims

are supported by the victims’ bank statements and own assertions that they relied on Berman’s

false statements in choosing to buy Decision Diagnostics securities. Id. at 1–3.

The Court agrees with the Government. All six of the challenged victims have submitted

Victim Impact Statements detailing the financial harm that they suffered as a result of Berman’s

misrepresentations. The Court credits these claims. The statements describe how they relied on

Berman’s claims about impedance technology, indicating the stock purchases were made within

the fraud period. See, e.g., P R Victim Impact Stmt., ECF No. 206-17, at 1 (“I was led to

believe by Keith Berman that Decision Diagnostics had a revolutionary product that would go to

market at just the right time. Between message boards and company press releases, I was

fraudulently reassured that not only was there a viable product that would ease some of the

burden of the pandemic by increasing testing capability, but that this product could increase the

safety of those in healthcare by providing rapid results.”); B S Victim Impact Stmt.,

14 ECF No. 206-21, at 1 (“We (my wife and I) believed that this company . . . was about to provide

a key element in the fight against COVID-19. . . . Believed so strongly, we invested half our

savings from an 18-year military career.”). The victims signed their impact statements,

establishing their veracity. And the Government need only substantiate the victims’ losses by

proving them by a preponderance of the evidence. The Government has done so here.

C.

That leaves one final matter: the establishment of a payment schedule. All told, Berman

owes $613,286.08 in restitution, after the relevant adjustments are made to account for the

findings of this Order. Under

18 U.S.C. § 3664

(f)(2), the Court must specify “the manner in

which, and the schedule according to which, the restitution is to be paid, in consideration of” the

following factors: (A) “the financial resources and other assets of the defendant, including

whether any of these assets are jointly controlled”; (B) “projected earnings and other income of

the defendant”; and (C) “any financial obligations of the defendant; including obligations to

dependents.” A payment schedule may take the form of a “single, lump-sum payment, partial

payments at specified intervals, in-kind payments, or a combination of payments at specified

intervals and in-kind payments.”

18 U.S.C. § 3664

(f)(3)(A). Alternatively, if the Court finds

“that the economic circumstances of the defendant do not allow the payment of any amount of a

restitution order, and do not allow for the payment of the full amount of a restitution order in the

foreseeable future under any reasonable schedule of payments,” the Court “may direct the

defendant to make nominal periodic payments.”

Id.

§ 3664(f)(3)(B).

Berman rightly points out that his financial situation is dire. The Government does not

dispute this fact. He “appears to have negative net worth” and remains “incarcerated with no

monthly cash flow.” Final PSR, ECF No. 191, at 21. He has minimal assets but extensive

15 liabilities, resulting in a negative net worth of several hundreds of thousands of dollars. Id. at 19.

More, he is 70 years old and suffers from several serious medical issues. Id. at 15; see also

Medical Declaration, ECF No. 194-2, at 2–4.

Still, Berman is an intelligent and educated man. He has two bachelor’s degrees and a

master’s degree. Final PSR ¶ 86. He has started his own company in the past that had multiple

employees. Id. ¶ 92. At one point, he was even a professor of economics. Id. ¶ 95. Berman

does not face a life sentence; there is still reason to believe that he can earn an income upon his

release. See United States v. Ben Zvi,

242 F.3d 89, 100

(2d Cir. 2001) (“A defendant’s limited

financial resources at the time restitution is imposed is not dispositive of whether restitution is

proper, particularly where the defendant has a reasonable potential for future earnings.”). Thus

while his current financial situation is bad, the Court cannot confidently say that he will be

unable to pay an order of restitution in the foreseeable future under a reasonable schedule.

18 U.S.C. § 3664

(f)(3)(B); see also

id.

§ 3664(k) (permitting a court to adjust the payment schedule

in light of material changes in a defendant’s economic circumstances.). It thus directs Berman to

make monthly payments of $100 towards the restitution order. The Court further rejects

Berman’s request to delay the start of the schedule until he is released from prison. He may use

prison funds and earnings to pay the restitution award until his release. His victims should not

have to wait for years before any chance of restitution.

IV.

For those reasons, the Government’s Restitution Motion is GRANTED IN PART AND

DENIED IN PART. A C is not a “victim” under the MVRA and is not entitled to a

16 restitution award. But the Government has properly substantiated the remaining awards by a

preponderance of the evidence. Thus it is hereby

ORDERED that Berman shall pay restitution in the amount of $613,286.08 to the

following victims: J B ($1,423.72); F B ($4,857.68); J C

($1,598.50); B C ($3,399.46); D C ($31,513.46); C G

($3,001.74); A H ($5,889.93); D J ($5,610.61); A J ($1,080.85);

A J ($1,939.99); I K ($2,500.00); D L ($2,557.39); L

L ($89,415.24); P M ($13,118.18); H N ($138,800.05); P R

($49,428.50); M R ($7,178.98); D S ($2,025.35); D S

($61,099.18); B S ($66,102.71); J S ($2,136.75); D T

($13,125.91); P W ($39,275.02); T W ($66,206.88); it is further

ORDERED that restitution payments begin immediately; and it is further

ORDERED that Berman’s minimum payment schedule is $100 a month.

SO ORDERED. 2025.05.16 14:48:08 -04'00' Dated: May 16, 2025 TREVOR N. McFADDEN, U.S.D.J

17

Reference

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