The opinion of the court was delivered by: Baylson, J.
SUPPLEMENTAL MEMORANDUM RE: ORDER OF RESTITUTION
Mortgage fraud is one of the defining crimes of the early years of the 21st Century, and the lead defendant in this case; Anthony James DeMarco was one of the worst offenders, causing numerous individuals to lose their homes, as a result of his complex mortgage fraud scheme. Defendant DeMarco was indicted on several counts charging conspiracy, mail fraud, wire fraud, bank fraud and money laundering and pled guilty to the Indictment on March 20, 2012. DeMarco entered an "open" plea, as there was no plea agreement with the government. At DeMarco's sentencing on October 1, 2012, the Court imposed a sentence of 300 months or 25 years of imprisonment, plus an special assessment of $1,000, and a term of supervised release of five years with numerous conditions. The other co-defendants with DeMarco also received substantial prison sentences plus imposition of fines, and supervised release. Imposition of restitution was delayed as to all defendants, as allowed by Dolan v. U.S., 130 S.Ct. 2553 (2010).
Due to the amount of restitution, the Court did not impose a fine.
At the sentencing hearing, several victims of the defendants' scheme appeared and explained, in some detail, how they had lost their homes as a result of defendant's misrepresentations and fraudulent scheme. This testimony, although from only a few victims, was sobering and persuasive in showing how defendants had caused harm to hundreds of individuals. The testimony of the few individuals who appeared at the sentencing could have been repeated by almost all of the victims, because the scheme was applied consistently by DeMarco and his confederates.
1. Proceedings Re: Restitution
Because of the complex nature of the fraud committed by DeMarco, the government was understandably not prepared to make final calculations and recommendations concerning restitution at that time, and the Court postponed the imposition of restitution to a future date and encouraged counsel to exchange information so that the Court could set as accurate and fair a restitution order as possible.
At the sentencing hearing, although DeMarco's then attorney, Christopher Warren, Esquire, had submitted no objections to the "proof of loss" as calculated in the Presentence Report, defendant DeMarco, at the sentencing hearing, voiced a strong objection to the calculation of the proof of loss and the Presentence Report and indicated that he had disputes about its accuracy.
The Court overruled DeMarco's request for a postponement of sentencing. The Court's Memorandum dated November 7, 2012 (ECF 150) supplemented the reasons stated at the sentencing as the justification for the conclusion of the amount of loss and reason for denial of a continuance.
At DeMarco's request, the Court appointed new counsel, Sandra Adler Gafni, Esquire as of October 5, 2012 (ECF 141).
The Court had entered another Order (ECF 146) dated October 11, 2012 requesting counsel for the government supply to the Court a copy of all communications with defense counsel concerning the proof of loss, including e-mails and transmissions of drafts of the chart presented at the sentencing hearing. The reason for this Order was so the record would show that the government had, in advance of DeMarco's sentencing hearing, provided his counsel with detailed calculations of the proof of loss. The government filed its responsive memo on October 25, 2012 (ECF 150), which detailed the numerous communications the government had made to defense counsel on the issue of the proof of loss.
The dialog between Mr. DeMarco's new counsel and the government concerning restitution continued.
On December 13, 2012, after the government provided a letter dated December 10, 2012 with detailed attachments concerning restitution owed by each defendant in this case, the Court entered an Order that any objections to the government's calculations should be filed no later than January 25, 2013 (ECF 153). This period of time was designed to give defense counsel ample opportunity to submit objections to restitution. The Court encouraged defense counsel to discuss their objections with the Assistant U.S. Attorney before filing objections.
The docket will show that transcripts of various proceedings in this case were filed on January 7th and 11th, 2013 (ECF 154-159).
On January 18, 2013, DeMarco filed a Motion for Extension of Time to File Objections to the Government's Calculations and Requests (ECF 160). The Court granted this extension (ECF 162) and specified that any objections should be filed no later than February 25, 2013.
The Court then scheduled a telephone conference for February 5, 2013 and during that conference call, the Court noted that it was obvious, and not disputed, that the amount of restitution in this case would be in the multi-million dollar range, but defendants had virtually no assets. For this reason, the Court concluded that it would be unconscionable for Court appointed defense counsel to spend any further time trying to "fine tune" the amount of restitution when there was no realistic possibility that DeMarco, or any defendant, was able to make restitution to any of their many victims. The Court also expressed the view that "exactitude" in the amount of restitution owed by defendant was not necessary in this case, in part relying on substantial legal precedent to this effect.
The Court therefore entered an Order on February 7, 2013 (ECF 168) stating that, for these reasons, Court appointed counsel should not expect to receive any compensation for any ...