Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Lillemoe

United States District Court, D. Connecticut

September 11, 2017

UNITED STATES OF AMERICA
v.
BRETT LILLEMOE AND PABLO CALDERON, Defendants.

          RULING RE: GOVERNMENT'S THIRD AMENDED MOTION FOR ENTRY OF A RESTIUTUTION ORDER (DOC. NO. 472)

          JANET C. HALL, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On June 13, 2017, defendants Brett Lillemoe (“Lillemoe”) and Pablo Calderon (“Calderon”) were each sentenced. As part of the Judgments against them, Lillemoe and Calderon were each ordered to pay restitution jointly and severally with each other, in an amount to be determined. See Judgments (Doc. Nos. 484, 488).

         The government has moved for entry of a restitution order in the amount of $18, 872, 998.38. See Gov.'s 3d Am. Mot. for Entry of Restitution Order (“Restitution Motion”) (Doc. No. 472). This amount includes $371, 645.38, payable to CoBank and $18, 501, 353, to the United States Department of Agriculture (“USDA”). See Schedule A (Doc. No. 472-1) at 6; Schedule A (Doc. No. 472-2) at 6.

         II. LILLEMOE'S OPPOSITION

         Lillemoe argues that the court should deny the government's request for restitution to the USDA because there was no causal connection between the defendants' conduct and the supposed loss to the USDA. See Defs.' Br. in Opp'n to Gov.'s Mot. for Entry of a Forfeiture Order and Gov.'s Am. Mot. for Entry of Restitution Order (“Defs.' Br.”) (Doc. No. 446) at 26. He also argues that the USDA is not a “victim” for purposes of restitution. Id. In addition, he contends that the government's request for CoBank's attorney's fees should be reduced. See Lillemoe's Opp. to the Gov.'s 3d Am. Mot. for Entry of Restitution Order (“Lillemoe's Opposition”) (Doc. No. 503). Finally, he argues that the amount of restitution should be reduced or made on a schedule, rather than immediately, due to his limited earning ability. See Defs.' Br. at 30.

         For the reasons that follow, the court rejects Lillemoe's arguments regarding restitution to the USDA and adjusting the government's proposed restitution schedule, and grants his request to reduce CoBank's legal fees.

         A. Restitution to the USDA

         Lillemoe argues that there was no causal connection between the defendants' conduct and the supposed loss to the USDA. See Defs.' Br. at 26-27. The court has already addressed this argument at great length in various proceedings. See e.g., Sentencing Tr. at 38:10-19 (June 12, 2017); 39:5-15 (June 12, 2017); 881:20-23 (June 13, 2017). At a sentencing hearing on April 5, 2017, it found the following:

I find it foreseeable that the defendants' fraud would cause the U.S. banks 100 percent of the loss if the foreign bank defaults on the loan. Even though that loss is temporary, it still existed and it still awaited a decision by the USDA to reimburse. Now, the argument, of course, was made that that was automatic, it happens very quickly. But I also remember testimony, which I credit, that there was a process. The paperwork was reviewed and a decision was made before the button was pushed to send, I don't know, five and a half million dollars to CoBank or to Deutsche Bank.

         Sentencing Tr. at 627:6-18 (April 5, 2017). Section 3664(f)(1)(A) provides that, “[i]n each order of restitution, the court shall order restitution to each victim in the full amount of each victim's losses as determined by the court and without consideration of the economic circumstances of the defendant.” It is clear “that the defendants were both but for and the proximate cause of the [$18.5 million] loss that resulted from the loans that the defendants arranged . . . ” Id. at 635:7-9 (April 5, 2017). The bank victims clearly lost, in the context of the MVRA, over $18.5 million. Further, without addressing whether the USDA was a “victim” itself under the MVRA, [1] it is entitled to an order of restitution after reimbursing the banks in the GSM-102 program that lost money due to the defendants' conduct. See 18 U.S.C. § 3664(j)(1) (“If a victim has received compensation from insurance or any source with respect to a loss, the court shall order that restitution be paid to the person who provided or is obligated to provide the compensation.”) Having paid 98 % of the bank losses suffered as a result of defendants' conduct, the USDA is entitled to an order of restitution in that amount, which is $18, 501.353. See United States v. Douglas, 525 F.3d 225, 253-54 (2d Cir. 2008); United States v. Cuti, No. 08-cr-972 (DAB), 2016 WL 4544062, at *2 n.4; United States v. Skowron, 839 F.Supp.2d 740, 747 (S.D.N.Y. 2012).

         B. Restitution to CoBank

         The government's request for restitution in the amount of $371, 645.38, payable to CoBank, includes $137, 422, as restitution for CoBank's losses and $234, 223.38, as restitution for CoBank's costs and attorneys' fees incurred in connection with the investigation and prosecution of the case. See Schedule A (Doc. No. 472-1) at 6; Schedule A (Doc. No. 472-2) at 6. CoBank desired not to share its underlying invoices with the defendants, in accordance with section 3664(d)(4) of title 18 of the United States Code. See Restitution Mot. at 1; 18 U.S.C. § 3664(d)(4). The court suggested that these invoices could be made available to the defendants for review only by their attorneys, a suggestion to which the government agreed. See Sentencing Hr'g of June 13, 2017 (Doc. No. 493) at 833:18-884:7. After his attorneys reviewed the invoices, Lillemoe objected to the amount of restitution that the government had moved for, arguing that the amount should be lowered by $65, 902.05. See Lillemoe's Opposition. The government did not reply to this Objection.

         After reviewing Lillemoe's Opposition, the court agrees that the amount of costs and fees should be reduced by $65, 902.05, because those fees were not necessary as required by the statute and Second Circuit case law. See United States v. Amato, 540 F.3d 153, 159-60 (2d Cir. 2008). Specifically, the court agrees that, although CoBank was entitled to have counsel to prepare its representative for her testimony, it was not necessary for CoBank's counsel to travel back and forth from Washington, D.C., to New Haven to attend trial daily and provide detailed summaries of all witness testimony and trial updates. See Opp. at 3. The government has not shown by a preponderance of the evidence that the fees incurred by CoBank after its witness testified were necessary, or “expenses the victim was required to incur to advance the investigation or prosecution of the offense.” See United States v. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.