On Point: b. Damages

Question presented:

Whether a defendant-who has fraudulently obtained a loan and thus owes restitution for the loan under 18 U.S.C. § 3663A(b)(1)(B) returns “any part” of the loan money by giving the lenders the collateral that secures the money?

Lower court opinion: United States v. Robers, 698 F.3d 937 (7th Cir. 2012)

Docket

Scotusblog page

In this case the Court will resolve a circuit split about the calculation of restitution under 18 U.S.C.

State v. Deris Huley, 2013AP682, 9/26/13 (1-judge ineligible for publication); case activity

It’s not often the court of appeals rules against the State.

 Huley pled no contest to a misdemeanor hit and run of an attended vehicle, as a repeater. See §346.74(5)(a).  The State sought restitution in the amount of $4,064.83 for the victim’s personal injuries.  Noting that “restitution is the rule and not the exception” and that “the victim need only show that the defendant’s actions were the precipitating cause of the injury and that [the injury] was the natural consequence of the actions,” the court of appeals nevertheless affirmed the denial of restitution. 

State v. Thomas G. Felski, 2012AP1115-CR, District 2, 1/3/13

Court of appeals decision (1 judge; ineligible for publication); case activity

Felski was convicted of violating Wis. Admin. Code ATCP § 110.05 (criminalized by virtue of § 100.20(2)) for failing to have a written contract covering some remodeling projects. Evidence at trial focused on construction of a garage, but Felski also worked on an addition to the house not covered by a written contract.

State v. Jesse D. Fries, 2011AP517-CR, District 4, 12/27/12

Court of appeals decision (not recommended for publication); case activity

Cost of installing new, upgraded security system in a convenience store after robbery was a “special damage” and therefore a proper item of restitution:

¶8        Fries’ primary contention is that an expenditure does not qualify as a special damage unless it was “spent to return the victim to the financial state he was in before the crime occurred.”  Here,

State v. Derick G. Vanbeek, 2009 WI App 37, PFR filed 3/13/09
For Vanbeek: Donald T. Lang, SPD, Madison Appellate

Issue/Holding: On conviction for making a false bomb scare, § 947.015, Vanbeek is liable in restitution to the school district for salaries and benefits paid to teachers and staff during the resulting 4-hour evacuation, because the school district lost the value of these employee’s services during that time.

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate

Issue/Holding:

¶13      Second, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim in a “but for” sense. Longmire, 272 Wis. 2d 759, ¶13; State v.

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding:

¶12      First, restitution is limited to “special damages … which could be recovered in a civil action against the defendant for his or her conduct in the commission of a crime considered at sentencing.” Wis. Stat. § 973.20(5)(a). The term “special damages” as used in the criminal restitution context means any readily ascertainable pecuniary expenditure paid out because of the crime. 

State v. Mark R. Johnson, 2005 WI App 201
For Johnson: Jefren Olsen , SPD, Madison Appellate

Issue/Holding1: Lost profits are “special damages,” and therefore subject to a restitution order, because the underlying causal criminal conduct could give rise to a civil action based on the torts of conversion and interference with prospective contractual relationships, ¶¶16-17.

Issue/Holding2: Because at least a minimal amount of speculation inheres to such a claim,

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding:

¶13. Restitution awarded under Wis. Stat. § 973.20(5)(a) is limited in two ways relevant to our present analysis. First, before a trial court may order restitution “there must be a showing that the defendant’s criminal activity was a substantial factor in causing” pecuniary injury to the victim. 

State v. Tony G. Longmire, 2004 WI App 90
For Longmire: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether attorney fees, incurred by the victims in seeking damages under the contract underlying this theft by contractor case, are subject to restitution.

Holding:

¶29. Longmire contends the trial court erred because the “American Rule” requires litigants in a civil action to bear their own litigation costs,