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U.S. v. Eisenberg

United States District Court, S.D. New York
Mar 19, 2008
06 Cr. 781 (DLC) (S.D.N.Y. Mar. 19, 2008)

Opinion

06 Cr. 781 (DLC).

March 19, 2008


MEMORANDUM OPINION AND ORDER


By letter dated December 5, 2007, the Government requested that the Court amend its previously entered order of restitution against defendant Larry Eisenberg as a result of submissions made after Eisenberg's sentencing by eleven victims of his fraud. An Order dated December 7 directed the parties to make submissions addressing the legal basis for this amendment. By submission dated February 11, 2008, Eisenberg objected to the Government's request on the grounds that (1) the request to amend the restitution order violates the plea agreement, and (2) the request does not fall within the provisions of the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A.

Eisenberg first argues that the amended restitution order would violate the plea agreement because the amount sought by the Government would be "in excess of the amount of loss attributable to the offense." Eisenberg contends that the maximum amount attributable to his offense is $990,400, the amount stipulated in this plea agreement for purposes of calculating his Sentencing Guidelines range. But as the Government correctly points out, the plea agreement identified this figure as representing the profits garnered by Eisenberg, and relied upon it because the "loss cannot be reasonable determined." Thus, the $990,400 stipulated figure used to calculate Eisenberg's Guidelines range has no bearing on the calculation of his liability under the MVRA, and certainly does not serve as the upper limit on that liability when his victims suffered losses in excess of that amount. Indeed, at sentence, the Court determined that Eisenberg owed restitution in excess of $990,400, to wit, $1,223,445.

Second, Eisenberg contends that an amended restitution order would run afoul of the MVRA because the Government failed to produce a list of identifiable victims within the time prescribed by the statute. Eisenberg contends that, in advance of sentencing, "the Government submitted a list of victims and the Court reasonably believing the list to be final, ordered restitution which Mr. Eisenberg, in the interests of finality agreed to pay." There was no indication that the list of victims produced in anticipation of sentencing was final, however; indeed, the Government repeatedly represented that the amount of restitution was subject to change, depending upon victims of Eisenberg's fraud coming forward with claims. Eleven such claimants did eventually come forward within the time prescribed by the MVRA, see United States v. Zakhary, 357 F.3d 186, 188 (2d Cir. 2004), and in its March 12, 2008 submission to the Court, the Government produced the requisite documentation of these victims' claims. Accordingly, it is hereby

To the extent Eisenberg argues that the restitution order should not be amended to include losses incurred by the eleven victims identified after his sentencing because the Government has failed to show "good cause" for its failure to include such losses in the initial claim for restitution, this argument is without merit. The Government has averred that these eleven victims learned of their losses attributable to Eisenberg only after he was sentenced. Eisenberg does not dispute this assertion. Moreover, his argument that they should have learned of his fraud earlier because there was information on the internet concerning his case as early as October 2006 is unavailing. His victims were under no obligation to troll the internet to learn about the provenance and genuineness of their emeralds.

ORDERED that the Government submit a proposed amended restitution order to the Court by Friday, March 28, 2008, to increase the amount of restitution owed by the defendant Larry Eisenberg to $1,499,625.

IT IS FURTHER ORDERED that the Government shall make all reasonable efforts to recover the stones sold to the victims and return them to defendant Larry Eisenberg once restitution has been paid in full.

SO ORDERED.


Summaries of

U.S. v. Eisenberg

United States District Court, S.D. New York
Mar 19, 2008
06 Cr. 781 (DLC) (S.D.N.Y. Mar. 19, 2008)
Case details for

U.S. v. Eisenberg

Case Details

Full title:UNITED STATES OF AMERICA, v. LARRY EISENBERG, Defendant

Court:United States District Court, S.D. New York

Date published: Mar 19, 2008

Citations

06 Cr. 781 (DLC) (S.D.N.Y. Mar. 19, 2008)