United States District Court, S.D. New York
November 4, 2004.
UNITED STATES OF AMERICA,
LIVINGSTON ROSS, Defendant.
The opinion of the court was delivered by: JOHN KEENAN, Senior District Judge
MEMORANDUM OPINION and ORDER
On November 7, 2003, defendant was sentenced to 37 months,
three years supervised release and an order of restitution of
$747,662.33 to be paid to Citizens Communications ("Citizens") of
Stanford, Connecticut, plus a $100 Special Assessment.
Defendant now moves to reduce the restitution obligation to
$275,000 because of an agreement with Citizens' insurer. Mr.
Ross' attorney urges in his moving papers that because of this
agreement between the defendant and National Union Insurance
Company ("National Union") the restitution payments should be
paid to National Union, the subrogee of Citizens, but only in the
amount of $275,000.
The Government opposes the motion asserting that Federal Rule
of Criminal Procedure 35(a) precludes me from changing or
correcting the sentence at this time. The defense counters that
this is not a F.R.C.P. 35 motion and that 18 U.S.C. 3664 permits
me to modify the restitution portion of the judgment in this case
at this late date. I do not agree with the defense and believe that they misread
subsections (k) and (o) of Section 3664. The defense agreement
with National Union was not something the Court was privy to
until after the fact and I will not alter the criminal judgment
entered because of an agreement between the defendant and a
non-party to this case.*fn1 The restitution order of
$747,662.33 stands and the motion to reduce the restitution is
Because of letters from the defense and the Government of
October 28, 2004, I am acutely aware that the first restitution
payment of $120,000 is due on November 7, 2004 (this has to be
November 8, 2004 and no restitution payments have thus far been
made). This $120,000 should be paid to National Union or the
Court no later than November 22, 2004.
As the Government observes in its October 28, 2004 letter:
"If Ross is concerned that he might pay the wrong
party, he could instead arrange to make his payment
into the District Court while the issue of the
correct party to receive the restitution is worked
out. There is no reason to delay payment."