     12-3601
     United States v. Kerekes



                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.



             At a stated term of the United States Court of Appeals for the Second Circuit, held
     at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
     York, on the 27th day of September, two thousand thirteen.

     PRESENT:
                 Robert A. Katzmann,
                        Chief Judge,
                 Dennis Jacobs,
                        Circuit Judge,
                 Kevin Thomas Duffy,*
                        District Judge.
     _________________________________________

     United States of America,

                        Appellee,

                        v.                                               12-3601

     Michael Kerekes,

                 Defendant-Appellant.
     _________________________________________

     FOR APPELLANT:                  Michael Kerekes, pro se, Santa Monica, CA.

     FOR APPELLEE:                   Michael Alexander Levy and Stanley J. Okula, Jr., Assistant
                                     United States Attorneys, Southern District of New York,
                                     New York, NY.


              *
              The Honorable Kevin Thomas Duffy of the United States District Court for the Southern
     District of New York, sitting by designation.
                                Nanette L. Davis, Trial Attorney, Tax Division, Appellate
                                Section, United States Department of Justice, Washington,
                                D.C.

     Appeal from an order of the United States District Court for the Southern District of
New York (Baer, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the order of the district court is AFFIRMED.

        Appellant Michael Kerekes, proceeding pro se, appeals from the district court’s

opinion and order apportioning restitution against him in the amount of $2,000,000

pursuant to the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C.

§ 3663A. We assume the parties’ familiarity with the underlying facts, procedural history

of the case, and issues on appeal.

        We review orders of restitution deferentially and “will reverse only for abuse of

discretion.” United States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006) (internal

quotation marks and citation omitted). Such abuse can be found only where the

“challenged ruling ‘rests on an error of law [or] a clearly erroneous finding of fact, or

otherwise can not be located within the range of permissible decisions.’” Id. (quoting

United States v. Gonzalez, 420 F.3d 111, 120 (2d Cir. 2005)). “Where there are challenges

to the district court’s findings of fact, we review for clear error; insofar as the order rests on

interpretations of law, we review those interpretations de novo.” See United States v.

Reifler, 446 F.3d 65, 120 (2d Cir. 2006) (citations omitted).

        Kerekes contends that we should remand for a redetermination of restitution

because, inter alia, (1) the complexity of the restitution calculations outweighed the need



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for restitution, (2) the district could should have refused to grant the government restitution

where the government could have recouped its losses directly from the taxpayers who were

Kerekes’s clients, (3) the district court’s restitution calculation was insufficiently precise,

and (4) the district court apportioned too much of the restitution award to the defendant.

We reject each of these arguments.

        The MVRA provides that restitution may not be imposed if the determination of

“complex issues of fact related to the cause or amount of the victim’s losses would

complicate or prolong the sentencing process to a degree that the need to provide

restitution to any victim is outweighed by the burden on the sentencing process.” 18

U.S.C. § 3663A(c)(3)(B). However, we will defer to a district court’s decision that an

award of restitution was not too complex for adjudication if, as here, “the record indicates

that the district court, although aware of the difficulties involved in ordering restitution[,] .

. . considered restitution an essential part of [the defendant’s] sentence.” United States v.

Catoggio, 326 F.3d 323, 328 (2d Cir. 2003).

        The district court also did not err in ordering restitution even where the government

could have recouped some of its losses directly from the taxpayers. Kerekes has cited no

authority that would require a victim to seek compensation from another source before the

victim can be awarded restitution. In fact, the MVRA explicitly mandates that “[i]n no

case shall the fact that a victim has received or is entitled to receive compensation with

respect to a loss or any other source be considered in determining the amount of

restitution.” 18 U.S.C. § 3664(f)(1)(B) (emphasis added).




                                                3
        Moreover, the district court’s method of calculating the amount of loss did not

render its decision an abuse of discretion. “[T]he MVRA requires only a reasonable

approximation of losses supported by a sound methodology,” and, “[s]o long as the basis

for reasonable approximation is at hand, difficulties in achieving exact measurements will

not preclude a trial court from ordering restitution.” United States v. Gushlak, --- F.3d ---,

No. 12-1919, 2013 WL 4558747, at *9 (2d Cir. Aug. 29, 2013) (internal quotations

omitted). Ordering restitution “requires a delicate balancing of diverse, sometimes

incomparable[,] factors, some of which not only lack certainty but may indeed be based on

mere probabilities, expectations, [or] guesswork,” United States v. Newsom, 399 F. App’x

625, 627 (2d Cir. 2010) (internal quotation marks omitted), and “the sentencing court is in

the best position to engage in such balancing,” United States v. Jaffe, 417 F.3d 259, 263

(2d Cir. 2005) (quotation and citations omitted). Here, the district court’s decision to adopt

a conservative estimate of the government’s losses using a 20% capital gains tax rate was

within its discretion.

        Lastly, the district court did not abuse its discretion in deciding to apportion

$2,000,000 of the government’s overall $53,577,527.96 loss to Kerekes. In determining a

restitution order, the district court is not required to use any particular formula for

apportionment among defendants or, indeed, to apportion the loss at all. See 18 U.S.C. §

3664(f)(1)(A). The court was well within its discretion to find that Kerekes had a

relatively modest role in the conspiracy and should only be held responsible for

$2,000,000—which was the amount of a bonus that the defendant had been paid for his

work on the criminal scheme. Although we held in United States v. Zangari, 677 F.3d 86,


                                                4
92-93 (2d Cir. 2012), that a defendant’s gains from a illegal activity could not serve as a

proxy for the victim’s actual losses in ordering restitution, the district court here properly

calculated a total restitution amount of $53,577,527.96 based on the victim’s actual losses.

Once the court did so, it was permissible for the court to use the amount of the bonus in

order to approximate the percentage of the overall loss amount for which the defendant

should be responsible.1 Even if we might have reached a different conclusion in the first

instance, this analysis was not an abuse of discretion.

       We have considered all of Kerekes’s remaining arguments and find them to be

without merit. For the foregoing reasons, the order of the district court is hereby

AFFIRMED.

                                               FOR THE COURT:
                                               Catherine O’Hagan Wolfe, Clerk




       1
          We note that it may have been improper for the district court to impose joint and
several liability or apportion part of that liability to the defendant. As we explained in
United States v. Aumais, 656 F.3d 147, 149 (2d Cir. 2011), the wording of “section 3664(h)
implies that joint and several liability may be imposed only when a single district
judge is dealing with multiple defendants in a single case” and “does not contemplate
apportionment of liability among defendants in different cases, before different judges, in
different jurisdictions around the country.” The court below relied on a prior district court
decision which held that apportioning liability among defendants in different cases was
permissible if the court ordered the government to monitor restitution collection to ensure that
the plaintiff did not double recover. However, we overturned that district court decision on
appeal. See United States v. Hagerman, 506 F. App’x 14, 18 (2d Cir. 2012) (summary order).
We do not reach the issue, however, because neither the government nor the defendant has
claimed that the district court committed any error by apportioning the defendant’s liability.
Rather, the government accepts the district court’s conclusion and Kerekes merely contends that
the amount of liability apportioned by the district court was too high. We therefore consider
both parties to have forfeited the issue. See Tracey v. Freshwater, 623 F.3d 90, 102 (2d Cir.
2010) (noting that we do not provide the same special solicitude to pro se litigants who are
lawyers).

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