In United States v. Alexander, the Second Circuit (Sack, Wesley, Livingston) issued a summary order that, among other things, vacated the district court’s restitution order as to two defendants, Marc and Rachael Alexander.  The order is notable primarily because it shows the Circuit’s willingness to scrutinize restitution orders.

With respect to Marc Alexander, the Court accepted his argument that the district court had violated his due process rights by fashioning a restitution order without affording him adequate notice and an opportunity to be heard.  The district court had concluded that Marc Alexander had an opportunity to be heard because his trial counsel’s sentencing memorandum responded to the Presentence Investigation Report’s (“PSR”) calculation of a loss figure as to one count and proposed restitution figure as to another count.  But the Court found that trial counsel’s memorandum focused solely on the issue of loss amount for Guidelines calculation purposes and did not otherwise raise any arguments regarding the proper restitution amount, which the parties understood to be an open issue for determination at a later date. 

Although the district court did conduct a more focused analysis at a later date regarding loss amount for purposes of determining restitution, it did so in the context of Rachael Alexander’s Fatico hearing, where the district court determined the restitution figures that it later used for its restitution order as to both Marc and Rachael Alexander.  The Court found, however, that Marc Alexander did not receive notice of, or an opportunity to participate in, that Fatico hearing because, after his trial counsel had withdrawn, electronic notifications that went to Marc Alexander’s appellate counsel referenced a hearing only “as to Rachael Alexander.”  Accordingly, the Court vacated the restitution order as to Marc Alexander and remanded for further proceedings in which his counsel could raise objections to the restitution amount.[1]

The Court’s decision in Alexander serves as a reminder that appellate counsel should pay close attention to all aspects of their client’s sentence, including the procedural history related to components such as restitution.  This is particularly true in complex, multi-defendant cases where there may be potential issues lurking in the procedural history, as was the case here with respect to Rachael Alexander’s Fatico hearing.  It is important for defendants to have an opportunity to be heard with respect to all aspects of their sentence, including restitution, which is too often a secondary consideration at sentencing even though it can carry significant consequences for a defendant.  While this decision does not have precedential effect, it is good to see that the Circuit is receptive to arguments based on the absence of an opportunity to be heard on the subject of restitution.