United States v. Franklin v. Fennell
Opinion
*360
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
Here, the evidence at Franklin Fennell's trial showed an actual loss amount of $110,600 in kickbacks that he and a co-defendant 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.
I. Factual Background and Procedural History
Fennell was the facilities and transportation director for the Vigo County School Corporation in Indiana. In that role, he submitted requests for maintenance work to the school district, which then authorized vendors to complete the work and paid them on completion.
Fennell and co-defendant Frank Shahadey, a district security officer, invited vendor Mike Pick to submit inflated estimates and invoices for recurring projects, like tree trimming and tree removal, in exchange for kickbacks. Fennell himself would award the contract to Pick on behalf of the district. Sometimes, the maintenance projects were wholly fictitious.
When Pick received a payment, he deposited the check and withdrew cash from those funds to pay kickbacks to Fennell and Shahadey. Pick performed approximately 58 jobs for the district. For most of those jobs, Fennell and Shahadey jointly received kickbacks ranging from $500 to $9,000 per invoice. Pick later cooperated with the FBI to record phone calls and meetings with Shahadey and Fennell.
At trial, an FBI agent testified about her analysis of the amounts embezzled, based on Pick's testimony, work orders, initial estimates, purchase requisitions, invoices, and bank statements. To summarize the voluminous records, the agent created a chart labeled Exhibit 37-2. She itemized each invoice attributed to Pick from 2014 to 2016, detailing the dates, amounts charged, and kickbacks paid to Fennell and Shahadey.
The agent testified that Pick's kickback payments to Fennell and Shahadey totaled $110,600. To calculate the kickback from each invoice, the agent relied on Pick's interviews with the FBI about the amount he withdrew each time to pay the defendants, *361 on bank statements of his withdrawals, and on audio recordings and surveillance of money exchanges between Pick and the defendants.
The jury found Fennell guilty on all nine charged counts of wire fraud,
At the sentencing hearing, the parties debated the restitution amount in general terms. Fennell said that "haphazard accounting" and unreliable records from Pick marred the loss calculation. He also argued that the correct loss amount was between $40,000 and $95,000, as that range had been stipulated as part of Shahadey's earlier guilty plea. The government responded that it had uncovered additional losses in preparing for Fennell's trial; it again furnished the court with Exhibit 37-2, detailing the kickback payments the agent had summarized at trial.
The court sentenced Fennell to 24 months in prison. As for restitution, the court cited its recollection of the evidence and the "complete jury verdict in favor of the Government's case" and found that the government had offered evidence "beyond a preponderance" to support the "intended" loss amount of $110,600 in restitution, for which Fennell was jointly and severally liable.
II. Analysis
On appeal, Fennell contends that
When a defendant raises such issues in the district court, we review the district court's authority to order restitution
de novo
and its calculation of the restitution amount for abuse of discretion.
United States v. Berkowitz
,
On appeal, his contentions have a "different flavor"-i.e., that the court supposedly shirked its statutory duty to secure a complete accounting. See
Berkowitz
,
Our review of the record and Fennell's contentions reveals no such error. Fennell argues that a more detailed accounting of restitution is always required at sentencing, but he does not show-and we do not find-that a comprehensive presentence report would have produced a different restitution amount in this case. Repetitive findings are unnecessary if the presentence report and trial record as a whole support the court's conclusions by a preponderance of the evidence. See
United States v. Hassebrock
,
Moreover, it was Fennell's burden to demonstrate the unreliability of the presentence report, and "a simple denial of its accuracy does not discharge this burden."
United States v. Scalzo
,
Fennell also seizes on the district court's oral reference to the "intended" rather than "actual" loss when it discussed restitution. The statute indeed requires that the restitution be based on the loss amount that the defendant actually caused, even if some greater sum was intended. See
United States v. Rhodes
,
The judgment of the district court is AFFIRMED.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Franklin v. FENNELL, Defendant-Appellant.
- Cited By
- 21 cases
- Status
- Published