United States v. Hamburger, 414 F. Supp.2d 219 (E.D.N.Y. 2005)
In Hamburger, the district court was called upon to address (and answer) the following five questions:
1. Does the Mandatory Victim Restitution Act preclude a court from limiting a restitution order amount to the amount settled upon by the defendant and his victim? Yes. A defendant who settles with a victim for an amount less than the full restitution amount is still subject to a full restitution order under the Mandatory Victim Restitution Act. As described by Hamburger, in "fashioning a restitution order, a pre-existing civil settlement is properly considered by the Court, but only as an offset against the calculation of total loss to the victim" in part because "restitition serves traditional purposes of punishment. The prospect of having to make restitution adds to the deterrent effect of imprisonment and fines." (It bears noting that the Hamburger court was not happy with this conclusion, which it felt compelled to reach.)
2. Does a district court, in modifying terms of probation, have the authority to modify a resitution order? No. Probation and restitution are separate and arise from different statutory sources. Thus, any modification of probation can have no impact on any restitution order.
3. What effect does a victim's renunciation of his interest in receiving restitution have on the obligation of an offender to fulfill his/her restitution obligation? None. The obligation to pay restitution continues even if the victim declines receipt of restitution. And, if so, the district court has the authority to order that such restitution payments be made to the Crime Victims Fund (or other victims of the defendant).
4. Should a defendant be credited for assets transferred back to a victim of an economic offense? Yes if they have economic value, and no if they do not have economic value. In Hamburger, the defendant transferred stock to the victim that was not publicly traded (i.e., had no market value) and therefore had no ascertainable economic value. To obtain credit for any such transfer, Hamburger would have had to have "liquidate[d] those assets and use[d] the proceeds for restitution." In this regard, it also bears noting that the Mandatory Victim Restitution Act does not clearly authorize a court to modify the form of restitution payments, as opposed to the schedule for those payments.
5. Can a defendant be relieved of home detention as a condition of probation when the defendant has fulfilled his/her restitution obligation? Yes. But Hamburger had not, in fact, fulfilled his restitution obligation. Thus, the court declined to relieve him of the terms of his probation.