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5500 Preparer's Manual for 2012 Plan Years

5500 Preparer's Manual for 2012 Plan Years
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CCH® PENSION — 02/03/12

District court permitted to look beyond charged conduct to calculate restitution amount for theft from plan

A district court did not err when, to calculate a restitution amount, it considered losses stemming from an individual's nine-year pattern of theft from her employees' retirement accounts, instead of focusing solely on losses incurred in the year that encompassed the charged criminal conduct, the U.S. Court of Appeals in San Francisco (CA-9) has ruled.

Guilty plea

An individual pled guilty to two counts of theft from an employee retirement plan, in violation of 18 U.S.C. Sec. 664, and two counts of filing false forms. The district court sentenced her to prison, and also ordered her to make restitution to her victims in the amount of over $240,000. To arrive at that amount, the district court found the individual had stolen money from her employees' retirement accounts during the six years preceding and the two years following the year that encompassed the charged criminal conduct. It also declined to consider the individual's own financial condition when imposing restitution. The individual appealed her sentence.

Restitution amount

The appellate court concluded that the district court did not err when it considered the larger pattern of conduct in determining the restitution amount. It further noted that the district court did not have the authority under the Mandatory Victims Restitution Act of 1996, 18 U.S.C. Sec. 3664(b), to consider the individual's own financial situation when determining restitution.

The district court did err when it failed to provide the defense with the summary of losses contained in the Probation Officer's report, prepared prior to sentencing, as required by the MVRA. However, the individual was not prejudiced by this failure as the summary was taken largely from materials to which the defense did have access. The individual thus should have been aware of the amount of losses the district court would be considering.

Source: U.S. v. Curran (CA-9).

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For more information on this and related topics, consult the CCH Pension Plan Guide, CCH Employee Benefits Management, and Spencer's Benefits Reports.

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