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United States v. Messina

United States District Court, E.D. New York

May 21, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
NEIL MESSINA, Defendant.

ORDER AMENDING JUDGMENT

KIYO A. MATSUMOTO, District Judge.

During defendant's sentencing on April 4, 2014, the court directed the government to determine if the family of Joseph Pistone, Jr., who was shot and killed during the course of an armed robbery that defendant conspired to commit, would file a claim for restitution in this case. (ECF No. 298, Judgment, 4/9/14.) The government submitted a letter on May 1, 2014, in which it stated that the family of Mr. Pistone was seeking restitution and attached supporting documentation. (ECF No. 306, Letter Regarding Restitution ("Gov. Let."), 5/1/14.) Mr. Messina submitted a response on May 5, 2014 objecting to the inclusion of lost income in any restitution order but did not otherwise object to the restitution claim. (ECF No. 309, Letter Addressing Restitution Order ("Def. Let."), 5/5/14.) For the reasons provided below, the court finds that the Judgment should be amended to include a restitution award in the amount of $120, 611.30.

I. Restitution Statute

Mr. Messina does not object to the government's methodology or calculations but does object to the government's inclusion of lost income in calculating restitution. Mr. Messina claims that the text of the 18 U.S.C. § 3663A(b)(3) only authorizes "the cost of necessary funeral and related services." 18 U.S.C. § 3663A(b)(3); see also Def. Let.

Mr. Messina misreads the relevant statute. The full text of 18 U.S.C. § 3663A(b)(2)-(4) provides that a restitution order shall require the defendant

(2) in the case of an offense resulting in bodily injury to a victim-
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense;
(3) in the case of an offense resulting in bodily injury that results in the death of the victim, pay an amount equal to the cost of necessary funeral and related services; and
(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

18 U.S.C. § 3663A(b)(2)-(4).

When read as a whole, the statute clearly provides that, in the case of an offense resulting in bodily injury to the victim, restitution includes "income lost by such victim as a result of such offense, " and "necessary funeral and related services" if the victim died as a result of the bodily injury. Id. ; see also United States v. Oslund, 453 F.3d 1048, 1063 (8th Cir.) ("[T]he [restitution] statute plainly states that a victim can recover income that is lost due to a crime causing bodily injury, and if that victim dies, then the estate can recover in the victim's place. Because future income is income that is lost to the victim as a direct result of the crime, the plain language of the statute leads to the conclusion that lost future income can be included in a restitution order."), cert. denied, 549 U.S. 1088 (2006); United States v. Palermo, No. 99 CR 1199, 2010 U.S. Dist. LEXIS 33240, at *2 (S.D.N.Y. Mar. 23, 2010) (stating that "18 U.S.C. § ...


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