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United States v. Venturella

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ARGUED NOVEMBER 4, 2008

Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.

Victoria Biks and Marjorie Venturella pled guilty to one count of mail fraud and agreed to pay a criminal forfeiture money judgment and restitution. They now claim that the forfeiture amount should have been limited to the amount of the mailing in the count of conviction, and that anything higher was tantamount to an illegal sentence. After reviewing the record, we find no error in the forfeiture calculation. The mail fraud count that the defendants were convicted of also alleged a broader scheme to defraud numerous government agencies of hundreds of thousands of dollars in benefits. As a result, the forfeiture is not limited to the amount of the particular mailing but extends to the entire scheme. Biks also argues, separately, that she should not have to pay the full restitution amount because the loss figures stated in the Presentence Report (“PSR”) were inaccurate, and that restitution should be offset by the amount of the forfeiture to avoid a potential double recovery and double jeopardy. We reject Biks’s challenges to the loss figures used in calculating restitution because she withdrew her objections to the PSR during sentencing and waived her right to raise those same challenges on appeal. Finally, we find nothing amiss in imposing forfeiture and restitution because restitution is not a criminal penalty that implicates double jeopardy, and Biks has not alleged that the victims in this case are also the recipients of the forfeiture, so there is no possibility of double recovery. Therefore, we affirm Biks’s and Venturella’s sentences.

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