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United States v. Lieberman

United States District Court, D. New Jersey

June 20, 2019

United States of America, Plaintiff,
v.
Michael Lieberman, Defendant.

          MEMORANDUM AND ORDER

          PETER G. SHERIDAN, U.S.D.J.

         This matter comes before the Court on a motion filed by Defendant Michael Lieberman for reconsideration of a prior order which amended a judgment of conviction to substitute National Union Fire Insurance Company of Pittsburgh ("National Union") as the victim and primary payee of restitution for Credit Agricole Securities ("Credit Agricole").

         On April 26, 2017, Judge Cooper entered an order substituting in National Union as the primary payee of restitution. (ECF No. 26). On January 24, 2018, Lieberman filed a motion to reconsider that order. (ECF No. 29).

         Legal Analysis

         Lieberman contends that "[t]he only ways to amend a final order of restitution" are set forth in 18 U.S.C. 3664(o). (Brief of Lieberman, ECF No. 29 at 3). The Government contends that subsection (o) applies only "to substantive changes (i.e., the elimination or reduction of restitution)," and cites three sources of legal authority that, it argues, justified the Court's order: Federal Rule of Criminal Procedure 36; the Mandatory Victim Restitution Act of 1996 (MVRA); and the All Writs Act. (Government's Brief, ECF No. 39 at 2-5).[1]

         Reconsideration

         Although the Federal Rules of Criminal Procedure do not specifically authorize motions for reconsideration, "the New Jersey Local Rules of Criminal Procedure specifically incorporate Local Civil Rule 7. 1(i), which governs such motions." United States v. Demuro, 2010 WL 2696105 at *2 (D.N.J. July 2, 2010); see also L. Crim. R. 1.1. Motions for reconsideration must "be served and filed within 14 days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge." L. Civ. R. 7.1(i).

         At the outset, the Court notes that Defendant's motion for reconsideration was extraordinarily late, having been filed on January 24, 2018; almost nine months after Judge Cooper's order. There being no apparent ground for excusable neglect, the motion is denied on that ground.

         Mandatory Victim Restitution Act

         Substantively, the Court also agrees that Judge Cooper's order was proper. This motion concerns a conflict between two federal statutes. As a general rule, the Third Circuit "look[s] with disfavor upon changes to a judgment after the fact." United States v. Bennett, 423, F.3d 271, 276- 77 (3d Cir. 2005). However, in some circumstances, such amendments are permitted by court rule or by statute. Under 18 U.S.C. § 3664(o), which governs orders of restitution:

A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that-
(1) such a sentence can subsequently be- a. corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of chapter 235 of this title; b. appealed and modified under section 3742; c. amended under subsection 3664(k), 3572, or 3613A; or
(2) the defendant may be resentenced under section 3565 or 3614.

18 U.S.C. ยง 3664(o). None of subsection o's provisions permitting modification apply to Judge Cooper's ...


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