United States District Court, N.D. California
ORDER SETTING RESTITUTION AWARD
EDWARD M. CHEN, District Judge.
On November 22, 2013, Defendant Peter Wong was convicted of three counts of theft from a federally funded program. Docket No. 234. On April 11, 2014, judgment was entered and Defendant was sentenced to a term of imprisonment of thirty-three months and ordered to pay restitution to the County of San Mateo. Docket No. 272. The Court deferred determination of the amount of the restitution award to permit the parties to meet and confer and submit briefing. The parties submitted their respective briefs on May 21, 2014. Docket Nos. 288, 289. The Court held a hearing on May 28, 2014. Docket No. 290.
The government asserts that the Court should order Defendant to reimburse the County of San Mateo for $561, 167.43 in attorneys' fees the County incurred in investigating the Defendant's conduct. Docket No. 289, at 2. The County retained three law firms at various points in the investigation and prosecution of Defendant. First, the County retained Keker & Van Nest LLP ("Keker") to liaison with the Federal Bureau of Investigation and Department of Justice and to assist in determining the scope of Defendant's conduct. Docket No. 289-1, at 10. Second, the firm of Fox, Shjeflo, Hartley & Babu LLP ("Fox Shjeflo") was retained to investigate the estates for which Defendant served as deputy public administrator to determine the losses to the estate and its heirs. Id. at 12. Finally, Hanson Bridgett was retained to review Defendant's former estates and ensure that those estates were in compliance with federal and state law. Id. at 14.
The Court has considered the parties' papers and argument. For the following reasons, the Court ORDERS that Defendant shall pay the County of San Mateo $104, 774.74 in restitution.
A. Legal Standard
The Mandatory Victims Restitution Act ("MVRA") provides:
Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense, or if the victim is deceased, to the victim's estate. incurred as a "direct and foreseeable result" of the defendant's wrongful conduct. United States v. Phillips, 367 F.3d 846, 863 (9th Cir.2003).
In addition to being "direct and foreseeable, " the incurred expenses must also be necessary to be recoverable. United States v. Amato, 540 F.3d 153, 160 (2d Cir. 2008) ("The statute requires that the included expenses be necessary, ' and that they be incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.").
"The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government, " and the loss amount must be established by a preponderance of the evidence. 18 U.S.C. § 3664(e). The Ninth Circuit has commanded that the MVRA "requires some precision when calculating restitution. Speculation and rough justice are not permitted." United States v. Anderson, 741 F.3d 938, 954 (9th Cir. 2013). At the same time, "exact precision is not required and district courts do have a degree of flexibility in accounting for a victim's complete losses; thus, a reasonable estimate' will suffice." Id.
B. The County Is Entitled to $104, 774.74 for Costs and Fees Paid to Keker & Van Nest, LLP
The parties do not dispute that a victim's attorneys' fees incurred in directly assisting the government in the investigation or prosecution of the offense are recoverable under the MVRA. In United States v. Gordon, the Ninth Circuit affirmed a restitution award which included reimbursement for Cisco's attorneys fees incurred in responding to grand jury subpoenas and government requests. See Gordon, 393 F.3d at 1057. Nonetheless, Defendant argues that a significant figure of the Keker attorneys' fees fall outside the MVRA's definition. First, he challenges the extent to which the County seeks reimbursement for the fees incurred in responding to Defense subpoenas. Docket No. 288, at 8. Second, he argues that a number of Keker's activities were unnecessary in that they could have been performed by the United States Attorney's office or San Mateo County's counsel office. Id. at 9.
As to the costs incurred in responding to Defendant's subpoenas, Gordon makes clear that such costs are recoverable under the MVRA. The MVRA provides that losses incurred in "participating" in the "prosecution of the offense" are recoverable. Whether the subpoena issues from the government or a defendant, the result is the same from the perspective ...