Submitted: December 14, 2016
from United States District Court for the District of
Minnesota - St. Paul
LOKEN, MURPHY, and KELLY, Circuit Judges.
MURPHY, Circuit Judge.
Adetokunbo Adejumo pled guilty to bank fraud and aggravated
identity theft. As part of his sentence he was ordered to pay
restitution of almost $500, 000, and he appeals. We vacate
the restitution order.
was indicted in 2011 on 15 counts charging a scheme to
defraud banks and bank customers by use of stolen identities,
stolen and fraudulently created bank accounts, counterfeit
checks, and fraudulently obtained credit card accounts. He
pled guilty to one count of aiding and abetting bank fraud
and one count of aiding and abetting aggravated identity
theft. His plea agreement required Adejumo to make
restitution payments to the victim of his crime, the amount
to be determined by the court at sentencing. At sentencing in
August 2012, the court ordered Adejumo to pay restitution but
did not state the amount.
August 2013 the government moved for restitution in the
amount of $1.1 million. Its motion was granted without
Adejumo having received notice of it. He subsequently
appealed the restitution award, and we reversed after
concluding that the procedure required by 18 U.S.C. §
3664 had not been followed and that the government had not
presented sufficient evidence to support the award.
United States v. Adejumo, 777 F.3d 1017 (8th Cir.
2015). We remanded to the district court for a restitution
an October 2015 hearing, the district court ordered Adejumo
to pay restitution to four banks in the total amount of $495,
803.86. Adejumo appeals, arguing that the court lacked
jurisdiction to order restitution because the government had
submitted its restitution request a year after sentencing. He
also challenges the sufficiency of the evidence underlying
the award. According to Adejumo, the government should only
have been allowed to seek restitution for the victim of the
particular acts on which he had been convicted, not for other
victims of his fraudulent scheme.
first challenges the district court's jurisdiction to
order restitution under 18 U.S.C. § 3664. Section
3664(d)(5) provides that if a "victim's losses are
not ascertainable" ten days before sentencing, the
government or probation officer "shall so inform the
court, and the court shall set a date for the final
determination of the victim's losses, not to exceed 90
days after sentencing." We review questions of statutory
interpretation de novo. United States v. Zaic, 744
F.3d 1040, 1042 (8th Cir. 2014). If the district court at
least makes clear at sentencing that it plans to order
restitution, the fact that it "misses the statute's
90-day deadline, even through its own fault or that of the
Government, does not deprive the court of the power to order
restitution." Dolan v. United States, 560 U.S.
605, 611 (2010). Although the delay here was six months
longer than in Dolan, the district court retained
its power to order restitution.
also challenges the sufficiency of the evidence supporting
the restitution award. We review the district court's
loss calculation for clear error. United States v.
Adetiloye, 716 F.3d 1030, 1038 (8th Cir. 2013). A
restitution award is "limited to the victim's
provable actual loss." United States v.
Chalupnik, 514 F.3d 748, 754 (8th Cir. 2008).
Restitution for funds not actually lost by a victim would be
an impermissible windfall. See United States v.
Louper-Morris, 672 F.3d 539, 566 (8th Cir. 2012). A bank
may therefore recover restitution only to the extent
sufficient evidence has proven its ultimate loss.
the government bears the burden of proving the restitution
amount by a preponderance of the evidence,
Adetiloye, 716 F.3d at 1039, "a district court
is charged only with reasonably estimating the loss"
when the amount lost through fraud is difficult to estimate,
United States v. Alexander, 679 F.3d 721, 729 (8th
Cir. 2012) (quoting United States v. McKanry, 628
F.3d 1010, 1019 (8th Cir. 2011)). While the Federal Rules of
Evidence do not apply at sentencing, "information
considered by the sentencing court must have 'sufficient
indicia of reliability to support [its] probable
accuracy.'" United States v. Fleck, 413
F.3d 883, 894 (8th Cir. 2005) (alteration in original)
(quoting United States v. Jones, 195 F.3d 379, 385
(8th Cir. 1999)). When "the defendant has objected to
the amount of loss attributable to him, the government may
meet its burden of proof by introducing testimony from the
[investigating officer] or a sworn statement from the victim
outlining the losses sustained as a result of the
crime." Adetiloye, 716 F.3d at 1039 (citation
conclude that the government failed to provide sufficient
evidence of the ultimate losses Adejumo caused the victim
banks. The district court received bank records and other
documentary evidence showing the amounts of money Adejumo
initially obtained through his fraudulent scheme. Because of
the long delay between Adejumo's offenses and the
restitution hearing, the documentary evidence showing the
initial losses does not sufficiently show how much each bank
ultimately lost. At the resentencing hearing, IRS special
agent James Shoup testified that banks sometimes recover
funds which initially appeared lost by fraud. ...