United States District Court, D. Connecticut
ORDER DENYING MOTION TO MODIFY RESTITUTION
Jeffrey Alker Meyer United States District Judge
criminal defendant defrauds victims of their money and is
sentenced to prison, is it unlawful or unfair to require him
to pay restitution from funds that his family members donate
to his prison commissary account? I don't think so.
Therefore I will deny defendant Brian Ferraioli's motion
to modify his restitution order.
7, 2018, the Court sentenced Ferraioli to a term of
imprisonment of 72 months and a restitution order of $6, 896,
927, following his plea of guilty to charges of wire fraud
and tax evasion. Doc. #44 at 1. Ferraioli's conviction
arose from an immense penny stock fraud conspiracy defrauding
thousands of victims. The Court further required Ferraioli to
pay $200 per month or 10% of his income in restitution,
whichever amount is greater. Docs. #44 at 2; #52 at 78.
the sentencing hearing, the Court entered a supplemental
restitution order providing that Ferraioli would be subject
to the Bureau of Prisons (BOP) Inmate Financial
Responsibility Program (IFRP), pursuant to which restitution
payments up to the maximum amount permitted under the IFRP
guidelines could be implemented. Doc. #45 at 3. The IFRP is a
voluntary program through which inmates work with staff to
develop a plan to meet their financial obligations, and those
who comply with the IFRP requirements retain a number of
privileges in exchange. See 28 U.S.C. §
545.11(b), § 545.11(d) (refusal of an inmate to
participate in or comply with IFRP will ordinarily result in
an inmate losing certain privileges); Johnpoll v.
Thornburgh, 898 F.2d 849, 851 (2d Cir. 1990).
“[S]taff shall consider the inmate's efforts to
fulfill those [IFRP] obligations as indicative of that
individual's acceptance and demonstrated level of
responsibility.” § 545.10.
has now moved to modify the Court's restitution order
with respect to what he is required to pay under the IFRP.
Doc. #47. According to Ferraioli, he earns less than $10 per
month from prison employment, while his family members
deposit approximately $250 per month to his commissary
account. Id. at 2. Ferraioli complains that the IFRP
requires him to pay $150 per month toward restitution.
Ibid. According to Ferraioli, while imprisoned, his
restitution should be limited only to payment of his earnings
from prison employment rather than payment of funds donated
to his prison commissary account from his family.
not agree. To begin with, the Court contemplated at
sentencing that Ferraioli would be liable to pay restitution
while imprisoned from any funds he received from third
parties. The Court's restitution order provides that
Ferraioli “shall apply to any restitution still owed
the value of any substantial resources from any
source the defendant receives during the period of
incarceration, including inheritance, settlement or other
judgment in accordance with 18 U.S.C. § 3664(n).”
Doc. #45 at 3 (emphasis added).
the IFRP regulations provide that “[p]ayments may be
made from institution resources or non-institution
(community) resources.” 28 C.F.R. § 545.11(b).
This provision has been reasonably understood to mean that
the BOP may assess payments under the IFRP for contributions
by family members to an incarcerated defendant's prison
account. See Thurston v. Chester, 386 Fed.Appx. 759,
762 (10th Cir. 2010).
unlikely that Ferraioli will ever be able to pay back more
than a fraction of the enormous amount of money that he and
others took from the many victims of his crimes. Although
Ferraioli's innocent family members may not have intended
or anticipated their donations to him would be drawn upon to
help compensate Ferraioli's equally innocent victims, it
is not unfair to require Ferraioli to pay reasonable
restitution from his assets or income, whatever the source of
Ferraioli was ordered at sentencing to pay restitution of at
least $200 per month and because his monthly payments under
IFRP are less than that amount, Ferraioli does not have
grounds to complain that I have impermissibly delegated undue
discretion to the BOP. See United States v. Kyles,
601 F.3d 78, 87 (2d Cir. 2010). At sentencing, I also made
clear that Ferraioli may seek an adjustment of his
restitution obligations in light of any change in financial
circumstances. Doc. #44 at 2; Doc. #52 at 78. Although
Ferraioli may think it unfair to pay restitution while
incarcerated from money that his family gives him, I do not
understand Ferraioli to argue that he is unable to pay the
amounts he is required to pay under the IFRP.
foregoing reasons, the motion to modify the ...