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U.S. v. ROSS

United States District Court, S.D. New York


November 4, 2004.

UNITED STATES OF AMERICA,
v.
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 denied.

  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."
SO ORDERED.


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