United States v. Taylor

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
September 8, 2009

No. 08-60581 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee
v.

LEE TAYLOR

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Mississippi

Before BARKSDALE, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:
Lee Taylor appeals his thirty–month sentence, imposed following a jury
conviction for fraud in obtaining disaster relief assistance. Taylor also appeals the
district court’s exercise of jurisdiction over count six, and its entry of an order of
restitution and an order of forfeiture.
I.
Taylor owned two properties on Howze Street in Moss Point, Mississippi.
3734 Howze Street was Taylor’s primary residence until it was subject to
foreclosure proceedings in June or July 2005. Taylor also owned 3718 Howze
Street, which he stated he occupied after the foreclosure of 3734 Howze Street.
3718 Howze Street had no power, water, or sewage services. Taylor asserts that
 No. 08-60581

he moved some of his personal belongings into 3718 Howze Street approximately
three weeks before Hurricane Katrina hit on August 25, 2005. Taylor stated that
he stayed at the property two to three nights per week. Mary Nettles, Taylor’s
girlfriend, testified that Taylor actually moved into her apartment after the
foreclosure of 3734 Howze Street. Nettles testified that she helped Taylor move
his furniture into a neighbor’s house and his personal belongings into her
apartment. Nettles stated that from date of the foreclosure at 3734 Howze Street
until the landfall of Hurricane Katrina, Taylor stayed at her home five to seven
nights per week and did not pay rent. Taylor asserts that Hurricane Katrina
caused significant damage to 3718 Howze Street, rendering it uninhabitable.
On September 5, 2005, Taylor applied for disaster relief benefits from the
Federal Emergency Management Agency (FEMA) for damages sustained at 3718
Howze Street. On his FEMA application, Taylor listed 3718 Howze Street as his
primary residence. A FEMA inspector initially determined that 3718 Howze
Street was not Taylor’s primary residence. Taylor repeatedly contacted FEMA,
asserting that 3718 Howze Street was his primary residence, and that he had
moved his belongings into the home but was forced to move them back out in
preparation for the storm; had not yet had an opportunity to turn the utilities
on, or, alternatively, did not have the funds to do so; and that he was subject to
eviction from Nettles’s apartment for nonpayment of rent. Following a second
inspection, Taylor was granted $2,000 of expedited assistance, $2,358 for rental
assistance, $9,477.06 for a personal property award, $10,500 for home repair,
and a FEMA trailer. FEMA awarded Taylor assistance based on “hardship and
intent to live [at 3718 Howze]”, giving Taylor the “benefit of the doubt” that he
“was, in fact, residing there but under a hardship of his own because he did not
have utilities.”
On June 26, 2006, Taylor applied for assistance from the Mississippi
Development Authority (MDA). Taylor applied for the Homeowners Assistance

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Program Phase II Grant (Phase II Grant), which required that Taylor own and
occupy 3718 Howze Street as a primary residence on the day Hurricane Katrina
made landfall. Taylor signed a document in connection with his application,
acknowledging that the information he provided was accurate and that he also
consented to the MDA verifying the information with FEMA. Taylor also filed
an affidavit stating that 3718 Howze Street was his primary residence. Taylor
was initially approved for the Phase II Grant in the amount of $92,400. Prior to
a final determination of his eligibility, Nettles filed a complaint with FEMA,
stating that 3718 Howze Street was not Taylor’s primary residence and that the
property was not habitable prior to landfall of Hurricane Katrina. The MDA
became aware of FEMA’s investigation and Taylor did not actually receive the
funding from the Phase II Grant.
On December 19, 2007, a seven count indictment was filed, charging
Taylor with mail fraud in violation of 18 U.S.C. § 1341 (count one); wire fraud
in violation of 18 U.S.C. § 1343 (counts two through four); that Taylor stole,
purloined, and converted disaster assistance benefits to which he was not
entitled in violation of 18 U.S.C. § 641 (count five); and making a materially false
statement in violation of 18 U.S.C. § 1001(a)(2) (count six). The indictment also
sought an order of forfeiture as authorized by 18 U.S.C. § 981(a)(1)(C) (count
seven). On March 12, 2008, the jury found Taylor guilty of counts two through
six and not guilty of count one.
Taylor’s conviction was published in the local newspaper, which prompted
Carla Poole, an employee of Rebuild Jackson County, to contact the government.
Poole was permitted to testify at Taylor’s sentencing hearing. Poole testified that
Rebuild Jackson County was a nonprofit established to provide disaster relief
assistance to homeowners who could not meet their own recovery needs. Rebuild
Jackson County required that the assistance be used to repay damages to an

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individual’s primary residence. Rebuild Jackson County had spent $66,764.21
to aid Taylor in rebuilding 3718 Howze Street.
On June 25, 2008, Taylor was sentenced to thirty months of
imprisonment and three years of supervised release. The district court held
Taylor responsible for $30,241.07 in actual loss to FEMA, $66,764.21 in actual
loss to Rebuild Jackson County, $10,000 in intended loss to the Small Business
Association (SBA) to which he had applied for a loan, and $91,922 in intended
loss to the MDA. In total, Taylor was held responsible for $198,927.28 in losses.
The district court also entered a Final Order of Forfeiture in the amount of
$23,841.06, ordered Taylor to pay $97,005.28 in restitution to FEMA and
Rebuild Jackson County, and imposed a $500 special assessment.
II.
A. Jurisdiction under 18 U.S.C. § 1001(a)(2)
Taylor argues that the district court erred in exercising jurisdiction over
count six, making a materially false statement in his application to the MDA in
violation of 18 U.S.C. § 1001(a)(2). The MDA was given $5.3 billion by Congress
through the United States Department of Housing and Urban Development
(HUD), to provide individuals with disaster relief assistance in the form of a
community development grant (Phase II Grant). The MDA required that an
individual own and occupy the residence for which assistance was requested.
The district court held that because the MDA funds were supplied by HUD and
because HUD had oversight authority over the general administration of the
funds, Taylor’s false statement was made to an agency within federal
jurisdiction. Taylor argues that the MDA is a state agency with limited federal
oversight, and consequently that the district court has no federal agency
jurisdiction.
Section 1001(a)(2) prohibits “knowingly and willfully . . . mak[ing] any
materially false, fictitious, or fraudulent statement or representation” in “any

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matter within the jurisdiction of the executive, legislative, or judicial branch of
the Government of the United States.” 18 U.S.C. § 1001(a)(2). This section
requires the government to prove that Taylor: 1) knowingly and willfully; 2)
made a statement; 3) to a federal agency; 4) that was false; and 5) material. §
1001(a)(2); see also United States v. Baker, 626 F.2d 512, 514 (5th Cir. 1980).
Section 1001 “is designed to protect federal funds and functions from fraudulent
interference. In furthering these purposes, it is irrelevant whether defendant
knew that his intentionally false statements might eventually influence a federal
agency.” Baker, 626 F.2d at 516.
Although framed as a challenge to the court’s jurisdiction, Taylor’s
argument effectively constitutes a challenge to the sufficiency of the evidence
establishing a nexus between his statements to the MDA and the administration
of the grant by HUD. See United States v. Reynolds, 152 F. App’x 416, 417 (5th
Cir. Nov. 2, 2005) (unpublished) (reviewing “whether the false statements were
made ‘in any matter within the jurisdiction’ of [HUD]” for sufficiency of the
evidence) (quoting § 1001(a)(2)). “This court reviews a challenge to the
sufficiency of the evidence de novo.” United States v. Nguyen, 504 F.3d 561, 567
(5th Cir. 2007). The evidence is reviewed in a light most favorable to the
government to determine whether a reasonable factfinder could find the
evidence proves guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d
547, 549 (5th Cir. 1982) (en banc), aff’d, 462 U.S. 356 (1983). Whether a false
statement is made in a “matter within the jurisdiction” of a federal agency is an
issue of fact. United States v. Montemayor, 712 F.2d 104, 108 (5th Cir. 1983).
The jury heard evidence that HUD funded and provided administrative
oversight of the MDA for its Phase II Grants. The MDA was required to submit
to HUD a detailed plan on how the money was to be used and to obtain HUD’s
approval of the plan in order to receive the funding. HUD had the authority to
cease funding the program and require the MDA to refund the money if HUD

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determined that the MDA was administering the money in violation of HUD
guidelines. The MDA was also required to provide quarterly reports to HUD and
was regularly audited by HUD.
In Montemayor, the defendant challenged the sufficiency of the evidence
supporting her conviction, asserting that obtaining a birth certificate from a
state agency was not a matter within the jurisdiction of the federal immigration
service. Id. at 106. Because the acquisition of the birth certificate was done for
a “federally connected purpose,” namely, to obtain United States citizenship for
the defendant’s children, the court found that the evidence was sufficient to
uphold the jury’s verdict. Id. at 106-07 (“[A]lthough not made directly to the
federal agency itself, [the false statements] may factually be held to be a matter
within the jurisdiction of the federal agency.”). Taylor’s false statement was
made to a state agency that was charged with administering a federally funded
program. See id. at 107 (“[A] false statement made to a local agency
administering a federal program has been held to create federal criminal
liability under § 1001 . . . .”); see also United States v. Stanford, 589 F.2d 285,
297 (5th Cir. 1978) (“[A] statement may concern a matter within the federal
jurisdiction described in section 1001, even if the statement is not submitted
directly to the federal department or agency involved, and the federal agency
involvement is limited to reimbursement of expenditures.”).
Finally, the MDA grant application required that Taylor certify that his
application was submitted under “penalty of perjury and penalty of violation of
Federal and State laws applicable to my application for and receipt of a grant
under the above referenced Program” and this certification was made “to the
United States Department of Housing and Urban Development and to the
Mississippi Development Authority of the State of Mississippi.” See Montemayor,
712 F.2d at 108 (“[A] showing that the defendant had actual knowledge of

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federal involvement might lessen the need for a detailed examination of the
federal government’s relationship to the statements.”).
Taylor also argues that the function of HUD was merely oversight of
MDA’s management of the program, and that his false statement did not pervert
the function of HUD in its oversight capacity. Courts have rejected such a
narrow interpretation for a finding of federal jurisdiction. “[T]he term
‘jurisdiction’ should not be given a narrow or technical meaning for purposes of
§ 1001.” Bryson v. United States, 396 U.S. 64, 70-71 (1969). Jurisdiction must be
defined in a nontechnical manner and “covers all matters confided to the
authority of an agency or department.” United States v. Rodgers, 466 U.S. 475,
479 (1984); see also United States v. Hames, 185 F. App’x 318, 323 (5th Cir. 2006)
(unpublished) (defendant’s false statements were within jurisdiction of the
federal court despite the fact that the statements were made to a private
contractor for purposes of gaining Medicare assistance and not directly to the
federal agency); Reynolds, 152 F. App’x at 417 (holding that statements made to
private lenders in an attempt to acquire a loan insured by HUD were matters
within HUD’s jurisdiction); United States v. Uni Oil, Inc., 646 F.2d 946, 954-55
(5th Cir. 1981). “The term ‘jurisdiction’ merely incorporates Congress’[s] intent
that the statute apply whenever false statements would result in the perversion
of the authorized functions of a federal department or agency.” Stanford, 589
F.2d at 297 (citing United States v. Gilliland, 312 U.S. 86, 93 (1941)). Taylor’s
false statement contravened the intent of the MDA Phase II Grant, funded by
HUD, which was to provide disaster relief assistance to individuals who suffered
damage to homes owned and occupied when Hurricane Katrina struck.
Perpetration of this fraud had the potential to divert a portion of these funds
from an individual who was entitled to receive them.
We find that the evidence is sufficient to uphold Taylor’s conviction as to
count six. Taylor’s false statements made to the MDA were made in a matter

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within the jurisdiction of a federal agency for purposes of 18 U.S.C. § 1001; thus,
the district court properly exercised its jurisdiction over this count.
B. Loss Calculation
The Pre-Sentence Investigation Report (PSR) held Taylor accountable for
$30,241.07 in actual loss to FEMA, $66,764.21 in actual loss to Rebuild Jackson
County, $10,000 in intended loss to the SBA, and $91,922 in intended loss to the
MDA. In total, the PSR found that Taylor was responsible for $198,927.28 in
losses. The district court adopted the loss calculations set forth in the PSR.
Taylor argues that the district court erred in calculating his intended loss
amount to the MDA and the SBA for sentencing purposes. Taylor asserts that
he intended to repay the $10,000 loan to the SBA and that the total amount he
would have received from the MDA was significantly less than the court had
calculated.
This court reviews the district court’s application of the Sentencing
Guidelines de novo. United States v. Lewis, 476 F.3d 369, 389 (5th Cir. 2007).
“Factual determinations regarding loss amount for guideline calculation
purposes are reviewed for clear error.” United States v. Ollison, 555 F.3d 152,
164 (5th Cir. 2009). “A district court’s determination of the amount of loss caused
by fraud is given wide latitude.” United States v. Brewer, 60 F.3d 1142, 1145 (5th
Cir. 1995). “[A]s long as the finding is plausible in light of the record as a whole,
it is not clearly erroneous.” United States v. Sowels, 998 F.2d 249, 251 (5th Cir.
1993).
Intended loss is “the pecuniary harm that was intended to result from the
offense.” U. S. Sentencing Guidelines Manual § 2B1.1(b)(2), comment. (n.3(A)(ii))
(2008). “‘Pecuniary harm’ means harm that is monetary or that otherwise is
readily measurable in money.” Id., comment. (n.3(A)(iii)). “The court need only
make a reasonable estimate of the loss.” Id., comment. (n.3(C)). “The sentencing
judge is in a unique position to assess the evidence and estimate the loss based

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upon that evidence. For this reason, the court’s loss determination is entitled to
appropriate deference.” Id. The determination of the amount of loss for
calculations under U.S.S.G. § 2B1.1(b)(1) requires the use of the greater of actual
loss or intended loss. Id., comment. (n.3(A)).
Taylor argues that there was no evidence to support the district court’s
finding that he intended to receive the full amount of the MDA’s Phase II grant.
Taylor argues that the initial amount of assistance for which he was approved
should be reduced by a portion of the proceeds he received from FEMA and the
full amount of proceeds he received from Rebuild Jackson County, and asserts
that the total grant award should be calculated at 70% of this amount. Taylor
calculates his intended loss to the MDA at $38,515.05. Taylor also argues that
the district court failed to make a finding as to his intent to repay the SBA loan.
The PSR, which was adopted by the district court, calculated Taylor’s loss
as $198,927.28, placing it within it the sentencing range of more than $120,000
but less than $200,000. Assuming arguendo that Taylor’s loss calculation should
be reduced by $10,000 for the SBA loan and the intended loss to MDA should be
$38,315.05, Taylor’s total loss calculation totals $135,320.33, still within the
$120,000 to $200,000 guidelines range. Any error resulting from recalculation
of this sum does not affect Taylor’s substantial rights, and therefore is harmless.
See F ED. R. C RIM. P. 52(a); cf. United States v. Pineiro, 410 F.3d 282, 285-86 (5th
Cir. 2005).
C. Restitution and Forfeiture
Taylor challenges the district court’s entry of both an order of restitution
and an order of forfeiture. This court reviews the district court’s legal
conclusions as to the propriety of a forfeiture order de novo. United States v.
1977 Porsche Carrera 911, 946 F.2d 30, 33 (5th Cir. 1991). This court reviews
the legality of a restitution order de novo. United States v. Chaney, 964 F.2d 437,

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451 (5th Cir. 1992). If the restitution order is legally permitted, the order is
reviewed for an abuse of discretion. Id. at 451-52.
Taylor first challenges the district court’s order of forfeiture as to counts
two through four, which found Taylor guilty of wire fraud in violation of 18
U.S.C. § 1343, arguing that these counts must involve a “racketeering activity”
in order to support an order of forfeiture. Section 981(a)(1)(C) makes “[a]ny
property, real or personal, which constitutes or is derived from proceeds
traceable to . . . any offense constituting ‘specified unlawful activity’” subject to
forfeiture to the United States. 18 U.S.C. § 981(a)(1)(C). The term “specified
unlawful activity,” is “any act or activity constituting an offense listed in section
1961(1) . . . .” 18 U.S.C. § 1956(c)(7)(A). 18 U.S.C. § 1961(1)(B) provides an
alternate definition of “racketeering activity,” including “any act which is
indictable under any of the following provisions,” listing 18 U.S.C. § 1343
“(relating to wire fraud).” Thus, the plain language of the statute supports the
district court’s order of civil forfeiture following Taylor’s indictment and
conviction of committing wire fraud in violation of 18 U.S.C. § 1343.
Taylor also challenges the order to forfeit funds to the Department of
Justice as unauthorized under 28 U.S.C. § 2461(c) because, having also been
ordered to pay restitution to FEMA pursuant to the Mandatory Victim
Restitution Act (MVRA), the forfeiture payment results in double compensation
to the United States government. The parties agree that the district court
properly ordered restitution; the dispute centers on whether the court should
have also ordered forfeiture and whether the forfeiture award should be reduced
by the amount of restitution.
The MVRA states that when the defendant is convicted of causing an
identifiable victim to suffer pecuniary loss, the district court “shall order, in
addition to . . . any other penalty authorized by law, that the defendant make
restitution to the victim of the offense . . . .” 18 U.S.C. § 3663A(a)(1) (emphasis

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added). 28 U.S.C. § 2461(c) states that when a defendant has been convicted of
an offense for which civil forfeiture is authorized, the district court “shall order
the forfeiture of the property as part of the sentence . . . .” (emphasis added).
In United States v. Emerson,128 F.3d 557 (7th Cir. 1997), the district court
had entered an order for restitution to the United States Postal Service and
entered an order for forfeiture to the United States Department of Justice
following defendant’s conviction for money laundering. Id. at 566. The Emerson
court noted that under the plain language of the statutes, forfeiture was
mandated and imposition of restitution was permitted. Id. The court held that
“the relevant statutes do not address the appropriateness or inappropriateness
of ordering both forfeiture and restitution,” and that it had found “no compelling
precedent suggesting that the district court could not order both restitution and
forfeiture.” Id; see also United States v. Feldman, 853 F.2d 648, 663 (9th Cir.
1988) (holding that the district court does not lose its discretion to impose
restitution merely “because a defendant must also forfeit the proceeds of illegal
activity”).
Emerson also noted the distinct purposes served by restitution and
forfeiture:
paying restitution plus forfeiture at worst forces the
offender to disgorge a total amount equal to twice the
value of the proceeds of the crime. Given the many
tangible and intangible costs of criminal activity, this is
in no way disproportionate to the harm inflicted upon
government and society by the [offense]. . . . [P]ayment
of restitution in no way alters the status of the property
as ill-gotten gains. Restitution operates to make the
victim of the crime whole, not to confer legal ownership
on the offender of the stolen property. As a result, [the
defendant’s] payment of restitution prior to forfeiture
makes no difference in our double jeopardy analysis.

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128 F.2d at 567 (quoting United States v. Various Computers & Computer
Equip., 82 F.3d 582, 588 (3d Cir. 1996) (quotations and citation omitted)); see
also United States v. Webber, 536 F.3d 584, 602-03 (7th Cir. 2008) (“Forfeiture
and restitution are distinct remedies. Restitution is remedial in nature, and its
goal is to restore the victim’s loss. Forfeiture, in contrast, is punitive; it seeks to
disgorge any profits that the offender realized from his illegal activity.”)
(citations omitted).
We agree with the reasoning of the Emerson court and hold that the
district court’s order for both restitution and forfeiture is permissible. The
district court properly adhered to the mandatory language found within the
statutory schemes. However, this does not answer whether these orders
constitute “double recovery” to the United States. This is an issue of first
impression for our court.
In Emerson, the defendant argued that the United States Postal Service
and the United States Department of Justice were the same entity. 128 F.3d at
567. The Emerson court rejected this argument, finding that the Postal Service
was a “distinct entity” from the Department of Justice because it is “an
independent establishment of the executive branch,” while the Department of
Justice “is an executive department.” Id. at 567-68 (citations omitted).
We find that FEMA, an executive agency under control of the United
States Department of Homeland Security, is a distinct entity from the
Department of Justice. See 6 U.S.C. § 313 et. seq. FEMA, under direction of its
own administrator, exists to “reduce the loss of life and property and protect the
Nation from all hazards, including natural disasters, acts of terrorism, and other
man-made disasters . . . .” Id. at § 313(b)(1). “The Department of Justice is an
executive department of the United States at the seat of Government,” and is
headed by the Attorney General. See 28 U.S.C. §§ 501, 503. The Department of
Justice is tasked with representing the United States in all legal matters in

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which the United States has an interest, as well as supervising and directing
control over the various divisions and bureaus that comprise the Department.
See 28 U.S.C. § 509. The district court’s order of restitution and forfeiture
against Taylor will not result in double recovery to the government and was
therefore not an abuse of discretion.
We next address Taylor’s argument that the amount of restitution he was
ordered to pay should have been offset by the amount he was ordered to forfeit.
Although the MVRA does not specifically address the relationship between
restitution and forfeiture, it does address the relationship between restitution
and other sources of funds generally. “In no case shall the fact that a victim has
received or is entitled to receive compensation with respect to a loss from
insurance or any other source be considered in determining the amount of
restitution.” 18 U.S.C. § 3664(f)(1)(B). Several courts have found that the plain
language of the MVRA does not require that restitution be offset against
amounts forfeited to the government. In United States v. Alalade, 204 F.3d 536
(4th Cir. 2000), the court was tasked with determining whether the district court
had discretion under the MVRA to order the defendant to pay restitution in an
amount less than the full amount of the victim’s loss by allowing an offset for the
amount of forfeiture. Id. at 537. The Alalade court held that “the plain language
of the MVRA did not grant the district court discretion to reduce the amount of
restitution” by the amount ordered to be forfeited. Id. at 540.
[T]he MVRA’s prohibition on district courts from
considering the fact that a victim has received or is
entitled to receive compensation for its loss from an
insurance company or any other source in determining
the total amount of restitution to be ordered . . . further
evinces congressional intent that defendants such as
Alalade initially be ordered to pay restitution in the full
amount of each victim’s loss. If the MVRA prohibits
district courts from reducing the amount of restitution
by the amount of third-party compensation received by

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a victim prior to entry of the district court’s order of
restitution, it would be nonsensical for the district court
to have discretion to reduce the amount of restitution
by the value of property seized from the defendant and
retained by the government in administrative
forfeiture, a loss to the defendant.

Id; see also United States v. Bright, 353 F.3d 1114, 1124 (9th Cir. 2004) (“[T]he
MVRA instructs district courts on how they must calculate restitution when
funds are made available to the victims from other sources and significantly
restricts the circumstances in which a district court may offset other funds
against the amount of a restitution order.”) (citing §§ 3664(f)(1)(B), (j)(1)–(2));
United States v. Leon-Delfis, 203 F.3d 103, 116 (1st Cir. 2000) (“[T]he language
of the . . . statutes regarding restitution is plain and allows the district court no
discretion.”); Emerson, 128 F.3d at 566-67 (holding that the district court has the
statutory authority to impose both restitution and forfeiture, and there is no
legal authority to offset one from the other) (discussing Various Computers, 82
F.3d at 586-89).
Courts have also declined to offset restitution based on the distinct
purposes served by restitution and forfeiture. See United States v.
Hoffman-Vaile, — F.3d — , 2009 WL 1458567, at *9 (11th Cir. May 27, 2009)
(rejecting defendant’s argument that forfeiture to government should be offset
by the amount paid in restitution to victims, because “[a]lthough this might
appear to be a double dip, restitution and forfeiture serve different goals”)
(quotation omitted); see also United States v. Leahy, 464 F.3d 773, 793 n.8 (7th
Cir. 2006); United States v. Hatten, 2009 WL 29407, at *2 (S.D. Tex. Jan. 5,
2009).
Generally, courts decline to offset restitution when there is no evidence
that doing so would result in double recovery to the victim. See United States v.
Ruff, 472 F.3d 1044, 1047 (8th Cir. 2007) (rejecting offset because the proceeds

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from confiscated items were not shown to have been paid to the victim); Bright,
353 F.3d at 1123 (“[T]he MVRA provisions . . . make clear that funds the victims
have not received cannot reduce or offset the amount of losses the defendant is
required to repay.”); United States v. Doe, 374 F.3d 851, 856 (9th Cir. 2004)
(rejecting the offset claim because the defendant did not allege that any
forfeiture proceeds were actually distributed to victims); United States v. Ellis,
161 F. App’x 17, 19 (D.C. Cir. 2005) (unpublished) (because the victims were not
the same, “requiring an off set would improperly allow [the defendant] to use the
proceeds of a successful criminal venture to offset losses from an unsuccessful
one”). Courts that permit offset of restitution have done so only after finding that
forfeited funds have been remitted to the victims in lieu of restitution. See
United States v. Fore, 169 F.3d 104, 110 (2d Cir. 1999); United States v. Smith,
297 F. Supp. 2d 69, 72-73 (D.D.C. 2003) (finding that when funds forfeited to the
Government have been returned to the victim, they must be offset against the
amount of restitution due; otherwise there would be a double recovery); United
States v. Anderson, 85 F. Supp. 2d 1084, 1103 (D. Kan. 1999) (holding that funds
recovered in a civil suit by the Federal Government against violators of the
Medicare Anti-Kickback statute should be credited against the loss incurred in
a Medicare fraud).
Finally, no rule or statute specifically requires this court to order the
government to remit the forfeited funds to pay for Taylor’s restitution obligation.

Nothing in the MVRA indicates that district courts
themselves are required to reach out and order the
government to transfer forfeited funds from
government entities to victims. If anything, there is
some indication to the contrary. See § 3664(p) (no
restitution provision ‘shall be construed to create a
cause of action not otherwise authorized in favor of any
person against the United States or any officer or

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employee of the United States.’). Thus, there is no legal
obligation that would compel the district court to invoke
its Article III enforcement authority.

Bright, 353 F.3d at 1124. Although the the Attorney General “is authorized . .
. to transfer [forfeited] property on such terms and conditions as he may
determine . . . as restoration to any victim,” 18 U.S.C. § 981(e)(6), there is no
evidence that the victims of Taylor’s criminal conduct have received any of the
forfeited funds or other restitution payments. As such, Taylor is not entitled to
have the restitution obligation shown as satisfied or reduced.1 Accordingly, the
district court did not err in not offsetting Taylor’s restitution obligation by the
amount he was required to forfeit.
III. Conclusion
For the foregoing reasons, we AFFIRM Taylor’s conviction and sentence,
and AFFIRM the district court’s entry of an order of restitution and order of
forfeiture.
AFFIRMED.

1
In its brief to the court, the government stated that FEMA would only receive the
forfeited funds if the Attorney General orders the money be remitted to FEMA in lieu of
restitution, citing 21 U.S.C. § 853(h)(i)(1), and if this occurs, Taylor would “be entitled to
reduce his restitution obligation by the amount of forfeited funds remitted to FEMA.”

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