US v. Anieze-Smith, No. 16-50208 (5-2-19)(Gould w/Nguyen & Benitez). In a restitution issue of first impression, the 9^th affirmed the imposition of restitution on five counts of health care fraud, even though some restitution fell outside the statute of limitations. The 9^th specifically held that a district court may order restitution for all losses resulting from a fraudulent scheme, even those caused by conduct occurring outside the limitations period.

The MVRA, as the 9^th reads it, allows restitution for acts or conduct in a scheme or conspiracy, even if the acts were for related conduct outside the conviction.  Restitution could also be ordered for victims not named in the indictment.  The 9^th thus concluded that though the statute of limitations may prevent the gov’t from charging acts outside the statute period, “it poses no bar to imposing restitution under MVRA for damages occurring from the full scheme.” (15).

The 9^th tracks the 11^th Circuit decision in US v. Dickerson, 370 F.3d 1330 (11^th Cir. 2004). The 11^th Circuit is the only other circuit that addresses this issue.  The 11^th reasoned that if the court could consider other conduct outside the limitations period, it could also order restitution.  The guidelines, the 11^th points out, allow relevant conduct to be considered from outside the period to set the offense level.  Ordering such restitution also does not run afoul of Hughey v. US, 495 US 411 (1990). Hughey limited the VWPA to specific conduct that was the basis of the offense, but Congress amended and broadened the VWPA to define “victim” the same as MVRA. The 9^th concludes that Hughey is no bar. The 9^th also cites a 10^th Circuit unpublished opinion in note 3: US v. Williams, 356 Fed. App’x 167 (10^th Cir. 2009).

Kudos to Kathryn Young, Deputy FPD, Cal. Central (L.A.) litigating this issue.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/05/02/16-50208.pdf