08-3750-cr
USA v. Battista
1 UNITED STATES COURT OF APPEALS
2
3 F OR THE S ECOND C IRCUIT
4
5
6
7 August Term, 2008
8
9 (Argued: May 13, 2009 Decided: August 6, 2009)
10
11 Docket No. 08-3750-cr
12
13
14
15 U NITED S TATES OF A MERICA,
16
17 Appellee,
18
19 –v.–
20
21 J AMES B ATTISTA, ALSO KNOWN AS B ABA, ALSO KNOWN AS S HEEP,
22
23 Defendant-Appellant.
24
25
26
27 Before:
28 W ALKER, W ESLEY, W ALLACE, * Circuit Judges.
29
30 Defendant-Appellant James Battista appeals from a
31 judgment of the United States District Court for the Eastern
32 District of New York (Amon, J.), entered on July 24, 2008,
33 convicting him, after a guilty plea, of conspiracy to
34 transmit wagering information in violation of 18 U.S.C. §§
35 371, 1084. We hold that the district court acted within its
36 discretion in ordering Battista to pay restitution to the
*
The Honorable J. Clifford Wallace, United States
Court of Appeals for the Ninth Circuit, sitting by
designation.
1
1 National Basketball Association under the Victim and Witness
2 Protection Act of 1982, 18 U.S.C. § 3663.
3
4
5
6
7 J ACK M CM AHON, Philadelphia, PA, for Appellant.
8
9 J EFFREY G OLDBERG, Assistant United States Attorney
10 (Jo Ann M. Navickas and Alexander A. Solomon, on
11 the brief), for Benton J. Campbell, United States
12 Attorney for the Eastern District of New York,
13 Brooklyn, NY, for Appellee.
14
15
16
17
18 W ESLEY, Circuit Judge:
19 Defendant-Appellant James Battista appeals from a
20 judgment of the United States District Court for the Eastern
21 District of New York (Amon, J.), entered on July 24, 2008,
22 convicting him, after a guilty plea, of conspiracy to
23 transmit wagering information in violation of 18 U.S.C. §§
24 371, 1084. Battista was a co-conspirator, along with Thomas
25 Martino, in the much-publicized National Basketball
26 Association (“NBA”) gambling scandal involving former
27 referee Timothy Donaghy. Following guilty pleas by all
28 three defendants, the NBA, and the United States on its
29 behalf, sought restitution. The district court determined
30 that each defendant was required to pay restitution to the
31 NBA as a victim of their criminal offenses. Only Battista
2
1 challenges the imposition of restitution on appeal. For the
2 reasons that follow, we affirm the restitution order of the
3 district court.
4 FACTS
5 Donaghy began his career as an NBA referee in September
6 1994 and continued in that position for thirteen seasons.
7 He first began placing bets on NBA games, including games he
8 officiated, during the 2003-04 season through his friend
9 Jack Concannon. The conspiracy at issue here, however,
10 began in December 2006 and continued until April 2007.
11 Donaghy provided “picks” on NBA games, again including games
12 he officiated, to co-conspirators Battista and Martino.
13 Battista agreed to pay Donaghy a fee for each game in which
14 Donaghy correctly picked the winner. Donaghy provided the
15 picks to Martino, Martino relayed the information to
16 Battista, and Battista placed the bets. According to the
17 government, Donaghy and Martino devised a code for
18 communicating picks over the telephone using the names of
19 Martino’s two brothers. If Donaghy mentioned Martino’s
20 older brother, the pick would be the home team; if Donaghy
21 referred to Martino’s younger brother, the pick would be the
22 visiting team. In making his picks, Donaghy relied on,
3
1 among other things, nonpublic information to which he had
2 unique access by virtue of his position as an NBA referee.
3 This information included his knowledge of the officiating
4 crews for upcoming NBA games, the interactions between
5 certain referees, players and team personnel, and the
6 physical condition of players. During the course of the
7 conspiracy, Martino met with Donaghy in several cities for
8 the primary purpose of paying Donaghy for his correct
9 predictions.
10 After the government discovered the gambling scheme,
11 Donaghy agreed to cooperate with its investigation.
12 Thereafter, in August 2007, Donaghy pleaded guilty to
13 conspiracy to commit wire fraud in violation of 18 U.S.C. §
14 1343 and conspiracy to transmit wagering information in
15 violation of 18 U.S.C. § 1084. In February 2008, Battista
16 and Martino were both charged with conspiracy to commit wire
17 fraud and conspiracy to transmit wagering information. 1 As
18 pertinent here, the indictment alleged that Martino and
19 Battista committed the following overt acts in furtherance
20 of the conspiracy to transmit wagering information:
21 a. On or about December 13, 2006, MARTINO spoke
22 with the NBA referee [Donaghy] by telephone
1
Martino was also charged with two counts of perjury.
4
1 regarding the NBA referee’s pick for an NBA game.
2
3 b. On or about December 14, 2006, BATTISTA and
4 MARTINO met with the NBA referee in Pennsylvania
5 and gave a cash payment to the NBA referee.
6
7 c. On or about December 26, 2006, MARTINO spoke
8 with the NBA referee by telephone regarding the
9 NBA referee’s pick for an NBA game.
10
11 d. On or about March 11, 2007, MARTINO met with
12 the NBA referee in Toronto, Canada, and MARTINO
13 gave a cash payment to the NBA referee.
14
15 (Indictment, ¶ 15). A few months later, Martino pleaded
16 guilty to the wire fraud conspiracy charge and Battista
17 pleaded guilty to the wagering conspiracy charge. Battista
18 described his criminal conduct during his plea allocution:
19 [F]rom December of 2006 to March 2007, I was
20 engaged in the business of sports betting, and I
21 agreed with Tom Martino and Tim Dona[ghy] to use
22 the telephone across state lines to obtain
23 information to assist me in wagering on sporting
24 events, on NBA basketball games. I received
25 information from Tom Martino, who received his
26 information from the NBA referee Tim Dona[ghy].
27 This agreement was formed during a meeting between
28 the three of us, in a hotel in December of 2006.
29 During the course of this agreement from time to
30 time I directed Mr. Martino to do certain things
31 such as having meetings with Mr. Dona[ghy].
32
33 Battista further admitted that he had met with Donaghy in
34 Pennsylvania for payment.
35 The NBA, and the United States on its behalf, sought
36 restitution against all three defendants. The NBA requested
5
1 restitution for (1) Donaghy’s compensation for the portions
2 of the 2003-04, 2004-05, 2005-06, and 2006-07 seasons when
3 he officiated games in which he had a financial interest;
4 (2) that portion of the salaries of NBA employees attributed
5 to reviewing the tapes of the games Donaghy refereed; and
6 (3) attorneys’ fees incurred by the NBA in connection with
7 assisting the government in its investigation and
8 prosecution.
9 After a comprehensive and particularized discussion of
10 each restitution claim asserted by the NBA, the district
11 court ordered the defendants to pay restitution in the total
12 amount of $217,266.94, breaking down the portions owed by
13 (1) all the defendants jointly and severally, (2) Battista
14 and Martino jointly and severally, and (3) each defendant
15 individually. See United States v. Donaghy, 570 F. Supp. 2d
16 411, 436-37 (E.D.N.Y. 2008). As relevant to the issues
17 Battista raises on appeal, the district court concluded that
18 the NBA was a “victim” of Battista’s crime of conviction –
19 conspiracy to transmit wagering information – under either
20 the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18
21 U.S.C. § 3663A, or the Victim and Witness Protection Act of
22 1982 (“VWPA”), 18 U.S.C. § 3663. The court determined that
6
1 Battista’s crime was covered by the MVRA, which applies to
2 “offense[s] committed by fraud or deceit,” 18 U.S.C. §
3 3663A(c)(1)(A)(ii), concluding that “the phrase ‘committed
4 by fraud or deceit’ appears to refer to the way in which a
5 particular offense was carried out rather than its
6 elements.” 570 F. Supp. 2d at 421. In the alternative, the
7 court concluded that Battista was accountable for
8 restitution under the VWPA and rejected the argument that
9 his current unemployment and familial obligations foreclosed
10 VWPA restitution. Id. at 421-23.
11 Battista appeals the district court’s restitution
12 order, arguing that: (1) the NBA was not a “victim” of the
13 offense to which he pleaded guilty under either the MVRA or
14 the VWPA; (2) his crime of conviction is not covered under
15 either restitution statute; (3) attorneys’ fees and
16 investigative costs incurred by the NBA are not recoverable;
17 and (4) his financial obligations were sufficiently
18 burdensome to exempt him from paying restitution under the
19 VWPA. For the following reasons, we reject Battista’s
20 contentions and affirm the district court order.
7
1 DISCUSSION 2
2 The goal of restitution, in the criminal context, is
3 “to restore a victim, to the extent money can do so, to the
4 position he occupied before sustaining injury.” United
5 States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006). In
6 the context of the MVRA, we have observed that “the
7 statutory focus” is “on the victim’s loss and upon making
8 victims whole.” United States v. Coriaty, 300 F.3d 244, 253
9 (2d Cir. 2002). The procedures a sentencing court must
10 follow in determining whether, and to what extent, to order
11 restitution pursuant to the MVRA or the VWPA are set forth
12 in 18 U.S.C. §§ 3663(d), 3663A(d), 3664. See United States
13 v. Reifler, 446 F.3d 65, 113 (2d Cir. 2006).
14 I. MVRA or VWPA?
15 Under the MVRA, restitution is mandatory for certain
16 crimes, such as “an offense against property under this
17 title . . . including any offense committed by fraud or
18 deceit.” 18 U.S.C. § 3663A(c)(1)(A)(ii). A district court
2
We review a district court’s order of restitution for
abuse of discretion. United States v. Ojeikere, 545 F.3d
220, 222 (2d Cir. 2008). Our standard of review is de novo
for the district court’s legal conclusions, whereas we
review findings of fact for clear error. United States v.
Amato, 540 F.3d 153, 158 (2d Cir. 2008).
8
1 must order restitution where “an identifiable victim or
2 victims has suffered a . . . pecuniary loss.” Id. §
3 3663A(c)(1)(B). In contrast to the MVRA, however,
4 restitution under the VWPA is discretionary. The VWPA
5 provides that “[t]he court, when sentencing a defendant
6 convicted of [any] offense under this title . . ., may order
7 . . . that the defendant make restitution to any victim of
8 such offense.” 18 U.S.C. § 3663(a)(1)(A) (emphasis added).
9 The VWPA requires sentencing courts to consider the amount
10 of the loss sustained by the victim as a result of the
11 offense, the defendant’s financial resources, the financial
12 needs and earning ability of the defendant and the
13 defendant’s dependents, and other factors the court deems
14 appropriate. See id. § 3663(a)(1)(B)(i)(I-II); United
15 States v. Ben Zvi, 242 F.3d 89, 99 (2d Cir. 2001). While
16 the district court must review these statutory factors,
17 detailed factual findings for each factor are not required.
18 See United States v. Stevens, 211 F.3d 1, 6 (2d Cir. 2000).
19 Aside from the aforementioned differences, “the provisions
20 of the VWPA and the MVRA are nearly identical in authorizing
21 an award of restitution.” United States v. Serawop, 505
22 F.3d 1112, 1118 (10th Cir. 2007) (internal quotation marks
9
1 and alteration omitted).
2 In this case, the district court determined that
3 Battista’s offense of conviction – conspiracy to transmit
4 wagering information – was covered under the MVRA, reasoning
5 that “the phrase ‘committed by fraud or deceit’ appears to
6 refer to the way in which a particular offense was carried
7 out rather than its elements.” 570 F. Supp. 2d at 421.
8 Although Battista’s criminal offense (unlike the other co-
9 conspirators’ offenses of conviction, i.e., wire fraud) does
10 not contain “fraud or deceit” as one of its elements, the
11 government argues that the crime nevertheless falls within
12 the scope of the MVRA because it was executed in a
13 fraudulent manner. Specifically, the government contends
14 that the conduct underlying the wagering conviction was
15 Battista’s dealings with Donaghy and Martino as part of a
16 scheme to defraud the NBA of Donaghy’s honest services by
17 using NBA insider information to place wagers on NBA games.
18 The district court generally agreed, observing that “the
19 success of Battista’s wagering was dependent on Donaghy’s
20 fraudulent conduct.” Id. In support of its position, the
21 government points to statements made by Battista during his
22 plea allocution and the factual allegations set forth in the
10
1 indictment, asserting that they demonstrate that Battista’s
2 transmittal of wagering information was intertwined with the
3 fraudulent gambling scheme. Battista’s co-conspirators,
4 Donaghy and Martino, never disputed before the district
5 court the applicability of the MVRA to the offense for which
6 they pleaded guilty – conspiracy to commit wire fraud –
7 because that offense must, by definition, be committed by
8 fraud or deceit.
9 We need not decide whether the district court properly
10 ordered Battista to pay restitution under the MVRA – which
11 would require us to answer the open question of whether the
12 language “committed by fraud or deceit” in Section
13 3663A(c)(1)(A)(ii) refers to the elements of an offense or
14 the manner in which the defendant commits the offense –
15 because we hold that restitution was properly imposed
16 pursuant to the VWPA. 3 Cf. United States v.
17 Murillo-Bejerano (In re Rendon Galvis), 564 F.3d 170, 175
18 (2d Cir. 2009) (declining to decide whether the term “crime
19 victim” under the Crime Victims’ Rights Act, 18 U.S.C. §
3
The MVRA and VWPA do not overlap. Rather, the MVRA
makes restitution mandatory for the crimes it covers, and
the VWPA enables discretionary restitution for non-MVRA
crimes. See 18 U.S.C. § 3663(a)(1)(A)(excluding from the
VWPA “offense[s] described in section 3663A(c)”).
11
1 3771, should be defined according to the elements of the
2 crime or offense of conviction). Before turning to the
3 district court’s analysis of the statutory factors set forth
4 in the VWPA, however, we must first determine whether the
5 NBA is a “victim” of Battista’s offense of conviction under
6 the VWPA.
7 II. Is the NBA a “Victim”?
8 The VWPA defines “victim” as
9 a person directly and proximately harmed as a
10 result of the commission of an offense for which
11 restitution may be ordered including, in the case
12 of an offense that involves as an element a
13 scheme, conspiracy, or pattern of criminal
14 activity, any person directly harmed by the
15 defendant’s criminal conduct in the course of the
16 scheme, conspiracy, or pattern.
17
18 18 U.S.C. § 3663(a)(2); accord id. § 3663A(a)(2). 4 Although
19 the definition of victim is certainly broad, in determining
20 whether one qualifies as a victim, a sentencing court can
21 only consider the offense or offenses for which the
22 defendant was convicted. See Hughey v. United States, 495
23 U.S. 411, 413 (1990); United States v. Metal Lathers Local
4
The Crime Victims' Rights Act, 18 U.S.C. § 3771,
contains a similar definition. That statute defines the
term “crime victim” as “a person directly and proximately
harmed as a result of the commission of a Federal offense or
an offense in the District of Columbia.” 18 U.S.C. §
3771(e).
12
1 46 Pension Fund (In re Local # 46 Metallic Lathers Union),
2 568 F.3d 81, 86 (2d Cir. 2009). Thus, restitution may be
3 ordered “only for the loss caused by the specific conduct
4 that is the basis of the offense of conviction.” Hughey,
5 495 U.S. at 413. “[T]he loss caused by the conduct
6 underlying the offense of conviction establishes the outer
7 limits of a restitution order.” Id. at 420.
8 On the facts presented in this case, we conclude that
9 the NBA was “directly and proximately harmed” by Battista
10 committing the crime of conspiracy to transmit wagering
11 information. 18 U.S.C. § 3663(a)(2). As the district court
12 explained, “[o]ne of the key features of this conspiracy was
13 that Donaghy was able to gain a wagering advantage for
14 Battista by using confidential information belonging to the
15 NBA in the course of providing him with ‘picks’ on games he
16 refereed.” 570 F. Supp. 2d at 420. Although Battista did
17 not defraud the NBA directly, we conclude that the district
18 court properly characterized the NBA as a “victim” under the
19 VWPA because the NBA was harmed by the conduct committed
20 during the course of the conspiracy to transmit wagering
21 information, e.g., Battista’s use of nonpublic information
22 solely belonging to the NBA (conveyed to him by the co-
13
1 conspirators) to place illegal wagers on its games.
2 Moreover, we must look at Battista’s “offense” of
3 conspiracy, in which his criminal conduct encompasses not
4 just his own acts but also those of his co-conspirators.
5 See United States v. Boyd, 222 F.3d 47, 50-51 (2d Cir. 2000)
6 (per curiam). By this standard, Battista’s crime plainly
7 harmed the NBA.
8 III. The District Court’s VWPA Analysis
9 We find no error in the district court’s analysis of
10 the statutory factors set forth in the VWPA. Nor did the
11 district court abuse its discretion in rejecting Battista’s
12 argument that VWPA restitution was improper because he is
13 financially unable to make payments due to his current
14 unemployment and that he has five minor children. We have
15 previously indicated that “[a] defendant’s limited financial
16 resources at the time restitution is imposed is not
17 dispositive of whether restitution is proper, particularly
18 where the defendant has a reasonable potential for future
19 earnings.” Ben Zvi, 242 F.3d at 100 (citation omitted); see
20 also United States v. Mortimer, 52 F.3d 429, 436 (2d Cir.
21 1995) (“Even an indigent defendant may be subject to the
22 duty to pay restitution when and if funds are eventually
14
1 acquired.”).
2 Here, the district court found that Battista possessed
3 assets totaling $676,300. 570 F. Supp. 2d at 422. The
4 court further noted that Battista’s sole liability was the
5 $120,000 balance on his mortgage. Id. The court found the
6 following additional facts about Battista’s financial
7 status:
8 His household’s monthly income is $1,800, which is
9 the sum of his wife’s salary and assistance from
10 other family. His household’s monthly expenses
11 total $4,830, resulting in a monthly negative cash
12 flow of $3,030. Currently, Battista stays home
13 with his three children while his wife works. His
14 wife has indicated that Battista has expressed
15 interest in opening a catering business, and his
16 presentence report reflects that he has previous
17 experience in the restaurant business.
18
19 Id. Battista does not challenge any of these factual
20 findings on appeal, nor have we identified any basis for
21 questioning them. In our view, the district court acted
22 well within its discretion in determining that Battista has
23 a “reasonable potential for future income” and that he
24 “should have sufficient resources to contribute to the
25 payment of restitution to the NBA.” Id.
26 We further note that, in addition to the enumerated
27 factors identified in Section 3663(a)(1)(B)(i), sentencing
28 courts may also consider “such other factors as the court
15
1 deems appropriate.” 18 U.S.C. § 3663(a)(1)(B)(i)(II). The
2 district court took note of its desire to accord equal
3 treatment to similarly situated defendants. See 570 F.
4 Supp. 2d at 422-23. Under the circumstances presented in
5 this case, two co-conspirators pled guilty to a crime
6 clearly subject to mandatory restitution, and another co-
7 conspirator (Battista), equally blameworthy in the eyes of
8 the district court, pled guilty to a crime involving the
9 same underlying criminal conduct that is not as obviously
10 subject to mandatory restitution but plainly subject to
11 discretionary restitution in the alternative. In our view,
12 it was entirely proper for the district court – which
13 concluded that the VWPA applied to Battista in the
14 alternative – to recognize equal treatment as a factor
15 supporting the imposition of restitution under that statute.
16 IV. Attorneys’ Fees
17 Lastly, Battista argues that attorneys’ fees incurred
18 by the NBA are not recoverable under either restitution
19 statute. 5 Along with permitting restitution for, among
5
Battista does not specifically challenge the other
categories of restitution that the district court applied to
him: (1) the amount of compensation paid to Donaghy for the
games he refereed during the 2006-07 season in which he
provided picks to Battista and Martino ($67,343.92), see 570
16
1 other things, property loss and healthcare expenses, the
2 VWPA allows a victim to recover “lost income and necessary
3 child care, transportation, and other expenses related to
4 participation in the investigation or prosecution of the
5 offense or attendance at proceedings related to the
6 offense.” 18 U.S.C. § 3663(b)(4) (emphasis added); accord 18
7 U.S.C. § 3663A(b)(4).
8 We recently addressed the scope of the term “other
9 expenses” under the MVRA, 18 U.S.C. § 3663A(b)(4), in United
10 States v. Amato, 540 F.3d 153, 159-63 (2d Cir. 2008), where
11 we affirmed a restitution order in the amount of $12.8
12 million to the corporate victim of mail and wire fraud. In
13 Amato, we held that “‘other expenses’ incurred during the
14 victim’s participation in the investigation or prosecution
15 of the offense or attendance at proceedings related to the
16 offense may include attorney fees and accounting costs.”
17 Id. at 159. We rejected the defendants’ contention that the
18 term “other expenses” excluded attorneys’ fees and
F. Supp. 2d at 424-30 (apportioned jointly and severally
across all defendants); and (2) the amount representing the
time NBA employees spent reviewing tapes of games that
Donaghy refereed at the government's request ($9,930.02),
also apportioned jointly and severally among all three
defendants, see 570 F. Supp. 2d at 436-37.
17
1 accounting costs as a matter of law, noting that “[o]ur
2 conclusion follows from the plain language of the statute.”
3 Id. at 160. We observed that the language in Section
4 3663A(b)(4) of the MVRA “gives the district courts broad
5 authority to determine which of the victim’s expenses may be
6 appropriately included in a restitution order.” Id. We
7 further elaborated on the statutory requirements, stating
8 that:
9 The statute requires that the included expenses be
10 “necessary,” and that they be “incurred during
11 participation in the investigation or prosecution
12 of the offense or attendance at proceedings
13 related to the offense.” 18 U.S.C. § 3663A(b)(4).
14 It also requires . . . that these expenses be
15 incurred by a “victim” within the meaning of 18
16 U.S.C. § 3663A(a)(2) and that they not require
17 unduly complicated determinations of fact, see 18
18 U.S.C. § 3663A(c)(3). The statute does not
19 otherwise limit the type of expenses that may be
20 included.
21
22 Id. 6
6
Among other arguments raised by the Amato defendants
that we rejected was one asserting that attorneys’ fees and
accounting costs could not be considered “other expenses”
because they were merely indirect or consequential damages.
Id. at 162. We declined to follow several decisions from
our sister circuits holding that attorneys’ fees could not
be included in restitution orders. See United States v.
Radziszewski, 474 F.3d 480, 487 n.3 (7th Cir. 2007); Gov’t
of Virgin Islands v. Davis, 43 F.3d 41, 46 (3d Cir. 1994);
United States v. Mullins, 971 F.2d 1138, 1146-47 (4th Cir.
1992); United States v. Arvanitis, 902 F.2d 489, 497 (7th
Cir. 1990). The latter three cases were decided under 18
18
1 We conclude that the holding in Amato – concededly
2 decided in the MVRA context – applies to the almost verbatim
3 statutory language in the VWPA. 7 Accordingly, the district
4 court did not err in awarding the NBA attorneys’ fees
5 incurred as a result of the assistance it provided to the
6 government in its investigation and prosecution of
7 Battista’s criminal offense. The rationale that we provided
8 in support of our conclusion that attorneys’ fees were
9 recoverable as “other expenses” under the MVRA applies with
10 equal force to the VWPA. See Amato, 540 F.3d at 159-162.
11 Moreover, when “two sections share the same purpose, the
12 parallel provisions can, as a matter of general statutory
13 construction, be interpreted to be in pari materia.” United
U.S.C. § 3663(b)(1), prior to the enactment of the provision
at issue in this case, 18 U.S.C. § 3663(b)(4). See Amato,
540 F.3d at 161; see also id. at 159 (noting that Congress
added 18 U.S.C. § 3663(b)(4) in 1994). Moreover, to the
extent that the Seventh Circuit in Radziszewski reached a
contrary result while interpreting the parallel subsection
under the MVRA, 18 U.S.C. § 3663A(b)(4), we expressly
declined to follow that holding. See id at 161.
7
Instead of using the phrase “other expenses related
to participation,” 18 U.S.C. § 3663(b)(4) (emphasis added),
the MVRA states “other expenses incurred during
participation in the investigation or prosecution of the
offense or attendance at proceedings related to the
offense.” 18 U.S.C. § 3663A(b)(4) (emphasis added). In all
other respects, the statutory provisions are identical.
19
1 States v. Carr, 880 F.2d 1550, 1553 (2d Cir. 1989). Indeed,
2 we have often interpreted the MVRA and VWPA in concert.
3 See, e.g., United States v. Ekanem, 383 F.3d 40, 43-44 (2d
4 Cir. 2004).
5 Here, the NBA incurred substantial attorneys’ fees as a
6 direct result of Battista’s criminal acts. The district
7 court meticulously parsed out the fees and costs submitted
8 by the NBA in determining which expenses were associated
9 with each defendant and whether they were incurred while
10 assisting the government in ascertaining the extent of the
11 criminal conspiracy and in preparing for Battista’s criminal
12 proceedings. Notably, the district court rejected
13 restitution for attorneys’ fees not directly related to the
14 assistance the NBA provided to the government in its
15 investigation and prosecution of the criminal offenses
16 committed by the defendants. The court agreed with the
17 defendants that attorneys’ fees associated with counseling
18 the NBA on its public response to Donaghy’s guilty plea were
19 not recoverable as an “investigation cost” pursuant to 18
20 U.S.C. §§ 3663(b)(4), 3663A(b)(4). See 570 F. Supp. 2d at
21 432. Indeed, this gambling scandal undoubtedly damaged the
22 reputation of the NBA and had the potential to impugn the
20
1 integrity of other referees in the league. 8 Moreover, the
2 conspiracy has called into question the legitimacy of the
3 outcomes of the many games Donaghy refereed. Nevertheless,
4 in contrast to the attorneys’ fees discussed above and
5 authorized by the district court, such damages, while
6 certainly significant, were not associated with assisting
7 the government in the investigation and prosecution of the
8 defendants’ criminal offenses, and thus, are not compensable
9 under 18 U.S.C. § 3663(b)(4).
10 CONCLUSION
11 Accordingly, for the reasons set forth above, the
12 judgment of the district court is hereby AFFIRMED.
8
Donaghy’s attorney alleged widespread game
manipulation and criminal activity amongst NBA referees.
See Howard Beck, Donaghy Cites Broad Misconduct in N.B.A.,
N.Y. Times, June 11, 2008, available at
http://www.nytimes.com/2008/06/11/sports/basketball/11refs.h
tml. In addition, a referee friend of Donaghy was accused
of wrongdoing in the media. See Howard Beck, N.B.A. Referee
Speaks as Gambling Cloud Passes, N.Y. Times, Nov. 4, 2008,
at B14, available at http://www.nytimes.com/2008/11/05/
sports/basketball/05referee.html.
21