United States District Court, D. Connecticut
RULING RE: GOVERNMENT'S THIRD AMENDED MOTION FOR
ENTRY OF A RESTIUTUTION ORDER (DOC. NO. 472)
C. HALL, UNITED STATES DISTRICT JUDGE.
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).
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.
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.
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.
Restitution to the USDA
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
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.
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,  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.
Restitution to CoBank
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.
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. ...