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United States v. Ebrahim

United States District Court, Second Circuit

May 21, 2013

UNITED STATES OF AMERICA
v.
ALNOOR EBRAHIM, Defendant.

MEMORANDUM AND ORDER

J. PAUL OETKEN, District Judge.

On June 18, 2012, Defendant Alnoor Ebrahim pleaded guilty to one count of conspiracy to commit wire fraud and securities fraud. Ebrahim's fraudulent conduct consisted of stealing confidential information from his employer, AT&T, Inc. ("AT&T"), and providing it to Primary Global Research ("PGR") in exchange for money, knowing that it would be used to trade securities.

On October 15, 2012, AT&T submitted a request for restitution, pursuant to the Mandatory Victims Restitution Act of 1996 ("the MVRA"), 18 U.S.C. § 366A, in the amount of $315, 096, arising from (1) a portion of the compensation AT&T paid Ebrahim during the period in which he engaged in fraudulent conduct and (2) legal fees and costs resulting from AT&T's representation in connection with the Government's investigation of Ebrahim's conduct. AT&T's request for restitution is supported by the Government and is opposed by Ebrahim. For the reasons that follow, AT&T is awarded restitution in the amount of $275, 023.51.

I. Background

On October 15, 2012, AT&T submitted a request for restitution. (Dkt. No. 9, Ex. A.) Several days later, in its sentencing memorandum, the Government sought "restitution in the amount of $315, 096 in accordance with [the] letter submitted by AT&T, Mr. Ebrahim's former employer and a victim of his crime." (Dkt. No. 9 ("Gov't. Sent. Mem.") at 6.) On October 25, 2012, this Court sentenced Ebrahim to a year and a day incarceration, a $10, 000 fine, and the mandatory $100 special assessment. The determination of what amount of restitution should be ordered was deferred. On January 25, 2013, 90 days after sentencing, the Government submitted a brief in support of AT&T's request for restitution. (Dkt. No. 14.) Ebrahim submitted an opposition on February 14, 2013. (Dkt. No 17 ("Def.'s Opp'n.").) The Government replied on April 3, 2013. (Dkt. No. 19.)

The MVRA requires restitution in fraud cases where "an identifiable victim or victims has suffered... a pecuniary loss." 18 U.S.C. § 366A(c)(1)(A)(ii)-(c)(1)(B). "Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence." United States v. Bahel, 662 F.3d 610, 647 (2d Cir. 2011). When "determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process, " restitution is not mandatory. 18 U.S.C. § 3663A(c)(3)(B). But see United States v. Catoggio, 326 F.3d 323, 328 (2d Cir. 2003) (restitution is proper in an "admittedly complex case" where "the district court, although aware of the difficulties involved in ordering restitution in this case, did not consider the process too burdensome").

As noted above, AT&T has asked to be considered the victim of Ebrahim's crime, and has asked both for a portion of the compensation paid to Ebrahim by AT&T, as well as attorney's fees incurred in the course of this case.

I. Timeliness

Title 18 U.S.C. § 366A(d)(1)(5) provides that, "[i]f the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." Ebrahim argues that, because the Court did not determine the extent of AT&T's losses within 90 days of Ebrahim's sentencing, the Government's motion is untimely.

"[T]he purpose behind the statutory ninety-day limit on the determination of victims' losses is not to protect defendants from drawn-out sentencing proceedings or to establish finality; rather, it is to protect crime victims from the willful dissipation of defendants' assets." United States v. Douglas, 525 F.3d 225, 252 (2d Cir. 2008) (quoting United States v. Zakhary, 357 F.3d 186, 191 (2d Cir. 2004)). Accordingly, "an extension of the proceedings beyond the 90-day period provides no basis for vacating the restitution order unless the defendant can show that the extension caused him actual prejudice." Id. at 252-53 (citing cases).

Here, Ebrahim asserts that awarding restitution outside the 90-day window will "specifically cause[] actual prejudice to the defendant who is incarcerated" and will "cause unfair delay and prejudice to the defendant." (Def.'s Opp'n. at 11.) Nowhere in his brief, however, does Ebrahim explain how, and why, he will be actually prejudiced by an award of restitution at this time. Therefore, AT&T remains entitled to restitution, despite the fact that the 90-day period has elapsed. Accord Douglas, 525 F.3d at 253 ("Douglas has provided no indication that he was in any way prejudiced by the fact that the restitution order was entered on May 5, 2006, rather than May 1, and his challenge to the order's timeliness is thus rejected.").

II. AT&T as a Victim of Ebrahim's Crime

It is undisputed that, by pleading guilty to one count of conspiracy to commit securities fraud and wire fraud, Ebrahim is obligated to make restitution to his victims. See 18 U.S.C. § 366A(c)(1)(A)(ii) (mandating that restitution be made to the victim of "any offense committed by fraud or deceit"). The MVRA defines the term "victim" as "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, ... 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). As detailed in the Information to which Ebrahim pleaded guilty, Ebrahim, an employee and fiduciary of AT&T, participated in a scheme "to deprive AT&T of the exclusive use of its intangible property, including certain confidential business information...." (Dkt. No. 4, at § 12.) Because AT&T was directly and proximately harmed by Ebrahim's criminal conduct, it is undoubtedly Ebrahim's victim under the MVRA. ...


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