U.S. V. DONAGHY 411 Cite As 570 F.Supp.2D 411 (E.D.N.Y
Total Page：16
File Type：pdf, Size：1020Kb
U.S. v. DONAGHY 411 Cite as 570 F.Supp.2d 411 (E.D.N.Y. 2008) IV. CONCLUSION (1) NBA was a victim for purposes of For the foregoing reasons, defendants’ MVRA and VWPA; motion to dismiss pursuant to 12(b)(1) is (2) crime of conspiracy to transmit wager- GRANTED in its entirety. The Section ing information was crime committed 1983 claims and Section 1985 conspiracy by fraud or deceit under MVRA; claim are dismissed without prejudice. The Clerk of the Court shall enter judg- (3) one defendant was responsible for res- ment accordingly and close this case. titution under VWPA; SO ORDERED. (4) referee’s prior actions of placing per- sonal bets through an intermediary was not a part of the conspiracy with , codefendants; (5) NBA referee’s compensation which was to be awarded to NBA as part of restitution award included referee’s UNITED STATES of America, salary and expenses for flight and v. room and board for 16 NBA games; Timothy DONAGHY, Defendant. (6) amount sought for attorney fees as part of investigatory costs component United States of America, of restitution award was a reasonable v. estimate of costs the NBA incurred; James Battista and Thomas (7) NBA’s claimed attorney fees were not Martino, Defendants. excessive; and Nos. 07–CR–587(CBA), 08–CR–86(CBA). (8) district court would apportion attorney fee costs to the appropriate defendant United States District Court, E.D. New York. in the interest of justice. Ordered accordingly. July 23, 2008. Background: Defendants pled guilty to conspiracy to commit wire fraud and con- 1. Sentencing and Punishment O2121 spiracy to transmit wagering information in connection with betting conspiracy in National Basketball Association which one defendant, who was a National (NBA) was a victim of crime of conspiracy Basketball Association (NBA) referee, to transmit wagering information, as would transmitted information he obtained in his allow restitution under the Mandatory Vic- official capacity to two other defendants to tims Restitution Act (MVRA) and the Vic- be used on betting for games. The NBA tim and Witness Protection Act (VWPA) in sought restitution under the Mandatory case in which NBA referee was paid to Victims Restitution Act (MVRA) and the give co-conspirators inside information, Victim and Witness Protection Act confidential to the NBA, to make bets on (VWPA). NBA games; the NBA was directly Holdings: The District Court, Amon, J., harmed by the conspiracy. 18 U.S.C.A. held that: §§ 1084, 3663(a)(2), 3663A(a)(2). 412 570 FEDERAL SUPPLEMENT, 2d SERIES 2. Sentencing and Punishment O2100, for future earnings; thus, even an indigent 2137 defendant may be subject to the duty to Crime of conspiracy to transmit wa- pay restitution when and if funds are even- gering information was crime committed tually acquired. 18 U.S.C.A. § 3663. by fraud or deceit, and therefore co-con- 6. Sentencing and Punishment O2184 spirator could be ordered to pay restitu- tion under the Mandatory Victims Resti- In the absence of a defendant show- tution Act (MRVA), in case in which ing a restricted future earnings potential National Basketball Association (NBA) by a preponderance of the evidence, it is referee provided picks to two co-conspir- entirely reasonable for a district judge to ators in exchange for fee, where the presume future earnings in ordering resti- success of co-conspirator’s wagering was tution under the Victim and Witness Pro- dependent on referee’s fraudulent con- tection Act (VWPA). 18 U.S.C.A. § 3663. duct. 18 U.S.C.A. §§ 1084, 7. Sentencing and Punishment O2134, 3663A(c)(1)(A)(ii). 2138 3. Sentencing and Punishment O2134, Defendant who pled guilty to conspir- 2148, 2195 acy to transmit wagering information was In determining whether to order resti- responsible for restitution under the Vic- tution under the Victim and Witness Pro- tim and Witness Protection Act (VWPA) in tection Act (VWPA), court is statutorily betting conspiracy case in which National required to consider (1) the amount of the Basketball Association (NBA) referee pro- loss sustained by each victim as a result of vided picks to two codefendants in ex- the offense, (2) the financial resources of change for fee, where defendant and his the defendant, (3) the financial needs and family had some financial resources, defen- earning ability of the defendant and the dant had future earning potential, and it defendant’s dependents and (4) such other would have been unjust to require only factors as the court deems appropriate, two out of three co-conspirators to pay but court is not to make detailed factual restitution simply because defendant pled findings as to each factor. 18 U.S.C.A. guilty to a different count of the indict- § 3663(a)(1)(B)(i)(I). ment. 18 U.S.C.A. §§ 1084, 3663(a). 4. Sentencing and Punishment O2134 8. Sentencing and Punishment O2102 Although the financial resources of Federal courts have no inherent pow- the defendant are one of the mandatory er to award restitution; they may only do considerations for an order of restitution so when authorized by statute. under the Victim and Witness Protection Act (VWPA), even a defendant with no 9. Sentencing and Punishment O2167 present ability to pay can still be ordered A restitution award need only to be a to do so. 18 U.S.C.A. § 3663(a). reasonable estimate of the victim’s actual losses. 5. Sentencing and Punishment O2135 A defendant’s limited financial re- 10. Sentencing and Punishment sources at the time restitution is imposed O2188(4) under the Victim and Witness Protection Although estimates are appropriate, a Act (VWPA) is not dispositive of whether court must base its restitution award on restitution is proper, particularly where more than mere speculation about a vic- the defendant has a reasonable potential tim’s actual losses; uncertainties with re- U.S. v. DONAGHY 413 Cite as 570 F.Supp.2d 411 (E.D.N.Y. 2008) spect to the amount in question should be must ask whether or not it is engaged in resolved in favor of the victim in accord furtherance of the scheme, conspiracy or with the statutory focus on making the pattern that was an element of the offense victim whole. 18 U.S.C.A. §§ 3663, 3663A. of conviction. 18 U.S.C.A. §§ 3663(a)(2), 3663A(a)(2). 11. Sentencing and Punishment O2138, 2146 16. Sentencing and Punishment O2146 Defendants who pled guilty to con- National Basketball Association spiring with one another in a betting con- (NBA) referee’s actions of placing personal spiracy involving professional basketball bets through an intermediary in prior were liable to pay restitution for acts of NBA seasons was not a part of the betting their co-conspirators committed in further- conspiracy in which he provided picks to ance of the conspiracy. 18 U.S.C.A. two co-conspirators in exchange for fee, §§ 1084, 1349, 3663(b)(4), 3663A(b)(4), and, thus, referee’s prior actions were not 3664(h). subject to an order of restitution, pursuant 12. Sentencing and Punishment O2178 to Mandatory Victims Restitution Act Co-conspirators can be held to be pro- (MVRA) and Victim and Witness Protec- portionately or jointly and severally liable tion Act (VWPA) following referee’s guilty for restitution payments. 18 U.S.C.A. plea to conspiracy to commit wire fraud § 3664(h). and conspiracy to transmit wagering infor- mation; prior actions did not serve to fur- 13. Sentencing and Punishment O2145 ther the interests of the conspiracy at is- Victim and Witness Protection Act sue. 18 U.S.C.A. §§ 1084, 1349, 3663(a)(2), (VWPA) and the Mandatory Victims Resti- 3663A(a)(2). tution Act (MVRA) confer authority to or- der a participant in a conspiracy to pay 17. Conspiracy O24(1) restitution even on uncharged or acquitted In order to prove a conspiracy, the co- counts. 18 U.S.C.A. §§ 3663, 3663A. conspirators need not have agreed on the 14. Sentencing and Punishment O676 details of the conspiracy, so long as they ‘‘Relevant conduct,’’ under Sentencing agreed on the essential nature of the plan. Guidelines section providing for consider- ation of relevant conduct in determining 18. Conspiracy O24(2) base offense level, extends beyond losses A single conspiracy is not transformed caused by schemes that are elements of into multiple conspiracies merely by virtue the offense of conviction to include losses of the fact that it may involve two or more attributable to the same course of conduct. phases or spheres of operation, so long as U.S.S.G. § 1B1.3, 18 U.S.C.A. there is sufficient proof of mutual depen- See publication Words and Phras- dence and assistance. es for other judicial constructions and definitions. 19. Sentencing and Punishment O2143 15. Sentencing and Punishment O2146 ‘‘Consequential damages,’’ which are In order to determine whether certain losses beyond those which naturally and conduct may be the subject of a restitution directly flow from the defendant’s conduct, order under the Victim and Witness Pro- are not recoverable as part of restitution tection Act (VWPA) and the Mandatory award under the Victim and Witness Pro- Victims Restitution Act (MRVA), a court tection Act (VWPA) and the Mandatory 414 570 FEDERAL SUPPLEMENT, 2d SERIES Victims Restitution Act (MRVA). 18 sought was a reasonable estimate of the U.S.C.A. §§ 3663(b)(1), 3663A(b)(1). costs the NBA incurred while assisting the See publication Words and Phras- government in its investigation of the de- es for other judicial constructions fendants who pled guilty to conspiracy to and definitions.