The opinion of the court was delivered by: Denise Cote, District Judge
Following a lengthy exchange of correspondence between the parties, on April 6, 2007, restitution was ordered in the amount of $1,418,602.93 to the victims in this case. This Opinion explains the basis for that award.
A. Original Sentencing Proceedings and Appeal
Following their conviction at trial on fraud charges, on April 22, 2005, Roberta Dupre ("Dupre") and Beverly Stambaugh ("Stambaugh") were sentenced principally to 168 and 108 months in prison, respectively. At that time, the Court ordered the defendants to make restitution in an amount to be "determined within 90 days from the date the judgment of conviction is filed." The judgments of conviction were filed on April 29.
On May 16, the Government requested restitution in the amount of $1,881,274, supported by a list of individual victims and the specific amount of restitution to which each victim was entitled. The defendants consented to an award of $967,374.82 to 474 victims for whom there was wire-transfer evidence to support the calculation, but objected on May 26 that the remainder was based only on estimates. The Government had applied an estimated loss of $1,000 to 557 victims whom the defendants' records identified as participants in the "Roberta Project"*fn1 but for whom the Government did not have records of wire transfers. The defendants filed a notice of appeal from their convictions on April 25 and 28, 2005, and this Court neglected to enter the final restitution order.
On September 6, 2006, the Court of Appeals for the Second Circuit affirmed the defendants' convictions, but remanded the case for resentencing in connection with the enhancement for vulnerable victims which this Court had imposed. United States v. Dupre, 462 F.3d 131 (2d Cir. 2006). Specifically, it ordered this Court "either (1) to clarify the record as to which victims of the Roberta Project, if any, were particularly vulnerable and how so, or (2) to resentence defendants without an enhancement pursuant to U.S.S.G. § 3A1.1(b)." Id. at 147. It added that "[t]he District Court may, at its discretion, allow supplementation of the record as it deems appropriate." Id. The Second Circuit, however, "intimate[d] no view as to whether, if the 'vulnerable victims' enhancement is not reimposed, the District Court could use its discretion pursuant to United States v. Booker, [543 U.S. 220 (2005)], and United States v. Crosby, 397 F.3d 103 (2d Cir. 2005), to impose a sentence above the Guidelines range." Id. at 146 n.18.
B. December 15 Resentence
On December 15, 2006, the Court resentenced the defendants, imposing principally sentences of 135 months and 87 months on Dupre and Stambaugh, respectively. The issue of restitution was not specifically addressed in either the parties' sentencing submissions or during the sentencing proceeding, but the defendants did not object to reimposition of the other terms of the sentence.
Judgments of conviction issued on December 20 neglected to reimpose the obligation to pay restitution. On December 27, the Government advised the Court of this error, and amended judgments of conviction issued on December 27 imposed as a term of supervised release that the defendants pay restitution in an amount to be determined "within 90 days from the date the amended judgment of conviction is filed." The defendants responded by a letter dated February 1, 2007, to which the Government responded on February 16. The parties were then ordered to meet and confer regarding various issues on or before March 5. To the extent any dispute remained, defendants' submissions were due March 9, and the Government's submissions were due March 13. Multiple letters then followed from both the Government and the defendants.
The first round of submissions on the issue of restitution was fully submitted on March 15. Although the Court had ordered the parties to meet to try to resolve their disputes, those meetings did not result in an agreement over the amount owed.
The defendants did not dispute that a restitution order should be entered in the amount of $967,374.82, the amount to which the defendants had agreed in 2005, but objected to the Government's request for an order in the amount of $1,593,013.93, or over $600,000 more. In essence, the defendants urged that restitution should be ordered only in the amounts of and to the individuals who sent wire transfers to the defendants through Western Union or by bank wire, as reflected in the Government's records.
The disputed amount arose from the Government's mailing of a letter to roughly 700 victims on January 9, 2007. In response it received 145 affirmations from victims ("Affiants") claiming losses. Some of the affirmations were supported by documents created at the time the victims sent the money to the defendants, such as Western Union money transfer receipts, email messages, or confirmatory documents issued by the defendants. The Government's request for restitution in an amount in excess of $1.5 million had accepted the amounts identified in the affirmations.
An Order of March 16 entered restitution in an initial amount of $967,374.82, the amount as to which there was no dispute. It also ordered restitution to the Affiants as well with two conditions. If the affirmation was unsupported by contemporaneously generated documents, then the restitution award could not exceed $1,000. In the event an Affiant claimed a loss in excess of $1,000, restitution was ordered in an amount that "is reflected in or supported by any documents that the affiant has submitted or the Government has in its possession that were generated contemporaneously with the ...