Douglas Jensen and Raphael Friedman of Sher Tremonte LLP discuss the Supreme Court case of Nelson v Colorado and its implications for wrongfully convicted defendants\u2019 recovery of restitution.<\/p>\n\n\n\n\n\n
\u201cYou can\u2019t give them back whatever time they\u2019ve spent in jail\u201d, but \u201cyou can give them the money back\u201d. So stated Chief Justice John Roberts during oral argument<\/a> of the 2017 Supreme Court case Nelson v Colorado<\/a>, which held that when \u201ca criminal conviction is invalidated by a reviewing court and no retrial will occur\u201d, the state or government must \u201crefund fees, court costs, and restitution exacted from the defendant\u201d.<\/p>\n\n\n\n Notwithstanding Justice Roberts\u2019 sweeping statement, the scope of the Supreme Court\u2019s ruling came immediately into question. While the majority opinion referred broadly to \u201cfees, court costs and restitution<\/em>\u201d (emphasis added), Justice Alito\u2019s concurrence objected to this broad language, in particular the inclusion of restitution. Among other concerns, Justice Alito posed a hypothetical scenario in which the restitution had already been paid to victims, suggesting that in such case a refund was not constitutionally required. Subsequent case law, although quite limited, has supported that view. As a result, wrongfully convicted federal defendants face an uncertain battle when trying to recover restitution payments that have been distributed to victims.<\/p>\n\n\n\n\n\n This issue has particular relevance now, in light of recent Supreme Court decisions narrowing the scope of conduct that may be prosecuted under the federal wire fraud statute.<\/p>\n\n\n\n For example, in Ciminelli v United States<\/a>, the Supreme Court struck down the \u201cright to control\u201d theory, by which a defendant could be convicted of wire fraud for depriving victims of \u201cintangible interests such as the right to control the use of one\u2019s assets\u201d. In Ciminelli, the Court found that the government could only sustain a conviction under the federal wire fraud statute where a defendant had deprived someone of a \u201ctraditional property right\u201d.<\/p>\n\n\n\n\n\n Another example is Kelly v United States<\/a>. Petitioners in that case \u2013 two former Port Authority employees and then Governor Chris Christie\u2019s former chief of staff \u2013 challenged their convictions for involvement in the Bridgegate scandal, in which the defendants caused the closure of traffic lanes on the George Washington Bridge as political payback to the mayor of Fort Lee for not supporting Christie\u2019s reelection campaign. All were convicted under federal fraud statutes, but the Supreme Court reversed these convictions, holding that the defendants \u201ccould not have violated the federal-program fraud or wire fraud laws\u201d because the scheme \u201cdid not aim to obtain money or property\u201d.<\/p>\n\n\n\n In these decisions, the Supreme Court declared that conduct charged by the government as criminal did not, in fact, amount to a federal crime. In such instances, wrongfully convicted defendants may, quite reasonably, seek a refund of whatever financial penalties they paid, including restitution. While the Supreme Court\u2019s opinion in Nelson would appear to give them support, where the restitution has already been paid to victims most lower courts have held that the defendants may not recover the money.<\/p>\n\n\n\n\n\n Nelson concerned a Colorado statute that allowed the state to retain the fees, court costs and restitution paid by wrongfully convicted defendants unless they could prove actual innocence through clear and convincing evidence. Colorado argued that because the money was paid pursuant to a then-legal conviction, it became \u201cpublic funds\u201d that the state need not return. A majority of the Supreme Court disagreed and held that the state had \u201cno legal right to retain\u201d wrongfully convicted defendants\u2019 money, and that such \u201cdeprivation of property\u201d would violate the \u201cpresumption of innocence\u201d to which all criminal defendants are entitled. The Court concluded that Colorado\u2019s requirement that defendants prove their innocence before getting their money back violated the Due Process Clause of the Fourteenth Amendment.<\/p>\n\n\n\n In his concurrence, Justice Alito concluded that Colorado\u2019s statute was unconstitutional, but did so by a different route, basing his analysis on Supreme Court precedent <\/a>that looks to \u201chistorical practice\u201d when assessing the validity of state criminal procedure laws. Alito then criticised the majority\u2019s \u201csweeping pronouncement regarding restitution\u201d, arguing that it was both \u201cunnecessary\u201d and misguided. Alito wrote: \u201c[the majority] overlooks important differences between restitution, which is paid to the victims of an offense, and fines and other payments that are kept by the State.\u201d Alito found it \u201cstartling\u201d to \u201cinsist that a State must provide a refund after enforcing a restitution judgment on the victims\u2019 behalf in reliance on a final <\/em>judgment that is then vacated on collateral <\/em>review\u201d (emphasis in original).<\/p>\n\n\n\n\n\n In the aftermath of Nelson, lower courts have disagreed about its scope, in part seizing on the distinction identified by Justice Alito as to whether restitution funds had already been released to victims. In United States v Medicine Horn<\/a>, one federal district court posited that \u201cthe restitution funds [in Nelson] had not been disbursed and were still possessed by the State of Colorado\u201d. After concluding that \u201cNelson did not address\u201d cases in which the restitution had been paid to victims, that court \u2013 relying in part on Alito\u2019s concurrence for support \u2013 held that in such a case the government need not \u201crefund\u201d the defendant. In United States v Brooks, the Second Circuit also concluded that in Nelson \u201cthe restitution was in the control of the state, not the victims\u201d. The Circuit expressly reserved judgement on the issue of whether a wrongfully convicted defendant may recover restitution when it has been distributed to victims.<\/p>\n\n\n\n On the other hand, a California state court recently disagreed, stating in dictum that, although \u201cnot expressly addressed in [Nelson], the appealed-from state court opinions make clear that in the consolidated Colorado cases \u2026 the restitution funds paid by the defendants had already been paid to the victims\u201d, and that fact did \u201cnot alter the high court’s holding that the state was required to repay the defendants\u201d. In fact, the opinions of the Colorado Supreme courts, which were clearly part of the record before the Nelson court, indicate that at least a portion of the restitution in those cases had <\/em>been paid over to victims, although the majority\u2019s opinion did not explicitly address that fact.<\/p>\n\n\n\n The Ninth Circuit is the only circuit court to have decided this issue, although it did so well before Nelson was decided and did not reach the constitutional issue. In United States v Hayes<\/a>, the Ninth Circuit held that a wrongfully convicted defendant could not recover his restitution payments, already distributed to victims, reasoning that \u201cthe government merely served as an escrow agent pending the final judgment and at the proper time paid the funds over to the victims\u201d. The Circuit proclaimed that the government cannot \u201creturn money it no longer has\u201d, and has reaffirmed Hayes as recently as June 2023 (in United States v Washington<\/a>). Importantly, however, these decisions were decided based on Federal Rule of Criminal Procedure 41(g) and did not explicitly consider whether there is a constitutional right to recover the money.<\/p>\n\n\n\n\n\n Wrongfully convicted defendants can marshal several arguments in support of their effort to recover restitution that has been distributed to victims. First, defendants can argue that Nelson, with its broad language and underlying facts, represents binding precedent that requires the government to repay restitution under any circumstances, even if it has already been paid to victims; Justice Alito certainly read the majority opinion that way. Even within the Ninth Circuit, defendants could argue that Nelson is controlling authority as to the all-important constitutional issue.<\/p>\n\n\n\n Second is fundamental fairness: returning money which the government (and victims) were never truly entitled to is the least a government can do for a wrongfully convicted defendant. As Justice Roberts commented in the oral argument of Nelson, even if the government cannot restore the time that wrongfully convicted defendants spent in jail, at least it \u201ccan give them the money back\u201d.<\/p>\n\n\n\n Third, the notion that the government \u201cno longer has the money\u201d is questionable. Money is fungible. As petitioners in Nelson argued during oral argument<\/a>, in all cases of restitution \u201cthe State is spending on something \u2026 the State isn\u2019t hiding that money under the mattress\u201d. Therefore, it makes little sense to differentiate between instances where the money was given to victims and instances where the state used the money for any number of other things.<\/p>\n\n\n\n Fourth, even if Nelson is not controlling on this issue, the decision lays the groundwork for arguing that the government still owes the wrongfully convicted defendant a debt even if it \u201cno longer has the money\u201d. This is because once a conviction is vacated, in retrospect, the state never <\/em>had a legitimate <\/em>legal right to the money. By rejecting Colorado\u2019s theory that the money became \u201cpublic funds\u201d, the Supreme Court implicitly recognised that defendants retain a property interest in their money even when it was exacted pursuant to a then-proper conviction. Therefore, as the petitioners in Nelson argued<\/a>, \u201cit\u2019s no excuse when you owe a debt to say, oh, gees, I\u2019m sorry, I already spent the money on something else\u201d.<\/p>\n\n\n\n While such arguments would face the obstacles presented by the lower court decisions discussed above, wrongly convicted defendants may nevertheless seek refuge in the broad language and principles espoused by Nelson. <\/p>\n\n\n\n\n\n\n","protected":false},"featured_media":0,"template":"","meta":[],"publication":[],"locations":[],"blocks":[{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Douglas Jensen and Raphael Friedman of Sher Tremonte LLP discuss the Supreme Court case of Nelson v Colorado and its implications for wrongfully convicted defendants\u2019 recovery of restitution.<\/p>\n","innerContent":["\n Douglas Jensen and Raphael Friedman of Sher Tremonte LLP discuss the Supreme Court case of Nelson v Colorado and its implications for wrongfully convicted defendants\u2019 recovery of restitution.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-media-list","attrs":{"media-list":"%5B%7B%22title%22:%22Douglas%20Jensen%22,%22image%22:%7B%22alt%22:%22Douglas%20Jensen,%20Sher%20Tremonte,%20Expert%20Focus%20contributor%22,%22title%22:%22Douglas%20Jensen%22,%22caption%22:%22%22,%22description%22:%22%22,%22id%22:18249,%22link%22:%22https:\/\/wpcms.chambers.com\/?attachment_id=18249%22,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08141625\/Douglas-Jensen.jpg%22,%22sizes%22:%7B%22thumbnail%22:%7B%22height%22:120,%22width%22:120,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08141625\/Douglas-Jensen-120x120.jpg%22,%22orientation%22:%22landscape%22%7D,%22medium%22:%7B%22height%22:300,%22width%22:282,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08141625\/Douglas-Jensen-282x300.jpg%22,%22orientation%22:%22portrait%22%7D,%22full%22:%7B%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08141625\/Douglas-Jensen.jpg%22,%22height%22:681,%22width%22:641,%22orientation%22:%22portrait%22%7D%7D%7D,%22content%22:%22Ranked%20in%201%20practice%20area%20in%20USA:%20Litigation:%20White-Collar%20Crime%20&%20Government%20Investigations%22,%22buttonName%22:%22View%20profile%22,%22buttonUrl%22:%22https:\/\/chambers.com\/lawyer\/douglas-jensen-usa-5:497942%22%7D,%7B%22title%22:%22Raphael%20Friedman%22,%22image%22:%7B%22alt%22:%22Raphael%20Friedman,%20Sher%20Tremonte,%20Expert%20Focus%20contributor%22,%22title%22:%22Raphael%20Friedman%22,%22caption%22:%22%22,%22description%22:%22%22,%22id%22:18250,%22link%22:%22https:\/\/wpcms.chambers.com\/?attachment_id=18250%22,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08141906\/Raphael-Friedman.jpg%22,%22sizes%22:%7B%22thumbnail%22:%7B%22height%22:120,%22width%22:120,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08141906\/Raphael-Friedman-120x120.jpg%22,%22orientation%22:%22landscape%22%7D,%22full%22:%7B%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08141906\/Raphael-Friedman.jpg%22,%22height%22:284,%22width%22:285,%22orientation%22:%22landscape%22%7D%7D%7D,%22buttonName%22:%22View%20firm%20profile%22,%22buttonUrl%22:%22https:\/\/chambers.com\/law-firm\/sher-tremonte-llp-usa-5:22611446%22%7D%5D","blockId":"1YK2a3","blockUniqueClass":"lazyblock-chambers-media-list-1YK2a3"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n \u201cYou can\u2019t give them back whatever time they\u2019ve spent in jail\u201d, but \u201cyou can give them the money back\u201d. So stated Chief Justice John Roberts during oral argument<\/a> of the 2017 Supreme Court case Nelson v Colorado<\/a>, which held that when \u201ca criminal conviction is invalidated by a reviewing court and no retrial will occur\u201d, the state or government must \u201crefund fees, court costs, and restitution exacted from the defendant\u201d.<\/p>\n","innerContent":["\n \u201cYou can\u2019t give them back whatever time they\u2019ve spent in jail\u201d, but \u201cyou can give them the money back\u201d. So stated Chief Justice John Roberts during oral argument<\/a> of the 2017 Supreme Court case Nelson v Colorado<\/a>, which held that when \u201ca criminal conviction is invalidated by a reviewing court and no retrial will occur\u201d, the state or government must \u201crefund fees, court costs, and restitution exacted from the defendant\u201d.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Notwithstanding Justice Roberts\u2019 sweeping statement, the scope of the Supreme Court\u2019s ruling came immediately into question. While the majority opinion referred broadly to \u201cfees, court costs and restitution<\/em>\u201d (emphasis added), Justice Alito\u2019s concurrence objected to this broad language, in particular the inclusion of restitution. Among other concerns, Justice Alito posed a hypothetical scenario in which the restitution had already been paid to victims, suggesting that in such case a refund was not constitutionally required. Subsequent case law, although quite limited, has supported that view. As a result, wrongfully convicted federal defendants face an uncertain battle when trying to recover restitution payments that have been distributed to victims.<\/p>\n","innerContent":["\n Notwithstanding Justice Roberts\u2019 sweeping statement, the scope of the Supreme Court\u2019s ruling came immediately into question. While the majority opinion referred broadly to \u201cfees, court costs and restitution<\/em>\u201d (emphasis added), Justice Alito\u2019s concurrence objected to this broad language, in particular the inclusion of restitution. Among other concerns, Justice Alito posed a hypothetical scenario in which the restitution had already been paid to victims, suggesting that in such case a refund was not constitutionally required. Subsequent case law, although quite limited, has supported that view. As a result, wrongfully convicted federal defendants face an uncertain battle when trying to recover restitution payments that have been distributed to victims.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"The Supreme Court\u2019s recent narrowing of the wire fraud statute ","headerLevel":"2","blockId":"25H2Vh","blockUniqueClass":"lazyblock-chambers-header-25H2Vh"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n This issue has particular relevance now, in light of recent Supreme Court decisions narrowing the scope of conduct that may be prosecuted under the federal wire fraud statute.<\/p>\n","innerContent":["\n This issue has particular relevance now, in light of recent Supreme Court decisions narrowing the scope of conduct that may be prosecuted under the federal wire fraud statute.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n For example, in Ciminelli v United States<\/a>, the Supreme Court struck down the \u201cright to control\u201d theory, by which a defendant could be convicted of wire fraud for depriving victims of \u201cintangible interests such as the right to control the use of one\u2019s assets\u201d. In Ciminelli, the Court found that the government could only sustain a conviction under the federal wire fraud statute where a defendant had deprived someone of a \u201ctraditional property right\u201d.<\/p>\n","innerContent":["\n For example, in Ciminelli v United States<\/a>, the Supreme Court struck down the \u201cright to control\u201d theory, by which a defendant could be convicted of wire fraud for depriving victims of \u201cintangible interests such as the right to control the use of one\u2019s assets\u201d. In Ciminelli, the Court found that the government could only sustain a conviction under the federal wire fraud statute where a defendant had deprived someone of a \u201ctraditional property right\u201d.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-quote","attrs":{"quote":" \u201cWrongfully convicted defendants may, quite reasonably, seek a refund of whatever financial penalties they paid, including restitution.\u201d<\/p>","blockId":"Z1EzEbg","blockUniqueClass":"lazyblock-chambers-quote-Z1EzEbg"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Another example is Kelly v United States<\/a>. Petitioners in that case \u2013 two former Port Authority employees and then Governor Chris Christie\u2019s former chief of staff \u2013 challenged their convictions for involvement in the Bridgegate scandal, in which the defendants caused the closure of traffic lanes on the George Washington Bridge as political payback to the mayor of Fort Lee for not supporting Christie\u2019s reelection campaign. All were convicted under federal fraud statutes, but the Supreme Court reversed these convictions, holding that the defendants \u201ccould not have violated the federal-program fraud or wire fraud laws\u201d because the scheme \u201cdid not aim to obtain money or property\u201d.<\/p>\n","innerContent":["\n Another example is Kelly v United States<\/a>. Petitioners in that case \u2013 two former Port Authority employees and then Governor Chris Christie\u2019s former chief of staff \u2013 challenged their convictions for involvement in the Bridgegate scandal, in which the defendants caused the closure of traffic lanes on the George Washington Bridge as political payback to the mayor of Fort Lee for not supporting Christie\u2019s reelection campaign. All were convicted under federal fraud statutes, but the Supreme Court reversed these convictions, holding that the defendants \u201ccould not have violated the federal-program fraud or wire fraud laws\u201d because the scheme \u201cdid not aim to obtain money or property\u201d.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In these decisions, the Supreme Court declared that conduct charged by the government as criminal did not, in fact, amount to a federal crime. In such instances, wrongfully convicted defendants may, quite reasonably, seek a refund of whatever financial penalties they paid, including restitution. While the Supreme Court\u2019s opinion in Nelson would appear to give them support, where the restitution has already been paid to victims most lower courts have held that the defendants may not recover the money.<\/p>\n","innerContent":["\n In these decisions, the Supreme Court declared that conduct charged by the government as criminal did not, in fact, amount to a federal crime. In such instances, wrongfully convicted defendants may, quite reasonably, seek a refund of whatever financial penalties they paid, including restitution. While the Supreme Court\u2019s opinion in Nelson would appear to give them support, where the restitution has already been paid to victims most lower courts have held that the defendants may not recover the money.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"Nelson and its application","headerLevel":"2","blockId":"2bvh4Y","blockUniqueClass":"lazyblock-chambers-header-2bvh4Y"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Nelson concerned a Colorado statute that allowed the state to retain the fees, court costs and restitution paid by wrongfully convicted defendants unless they could prove actual innocence through clear and convincing evidence. Colorado argued that because the money was paid pursuant to a then-legal conviction, it became \u201cpublic funds\u201d that the state need not return. A majority of the Supreme Court disagreed and held that the state had \u201cno legal right to retain\u201d wrongfully convicted defendants\u2019 money, and that such \u201cdeprivation of property\u201d would violate the \u201cpresumption of innocence\u201d to which all criminal defendants are entitled. The Court concluded that Colorado\u2019s requirement that defendants prove their innocence before getting their money back violated the Due Process Clause of the Fourteenth Amendment.<\/p>\n","innerContent":["\n Nelson concerned a Colorado statute that allowed the state to retain the fees, court costs and restitution paid by wrongfully convicted defendants unless they could prove actual innocence through clear and convincing evidence. Colorado argued that because the money was paid pursuant to a then-legal conviction, it became \u201cpublic funds\u201d that the state need not return. A majority of the Supreme Court disagreed and held that the state had \u201cno legal right to retain\u201d wrongfully convicted defendants\u2019 money, and that such \u201cdeprivation of property\u201d would violate the \u201cpresumption of innocence\u201d to which all criminal defendants are entitled. The Court concluded that Colorado\u2019s requirement that defendants prove their innocence before getting their money back violated the Due Process Clause of the Fourteenth Amendment.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In his concurrence, Justice Alito concluded that Colorado\u2019s statute was unconstitutional, but did so by a different route, basing his analysis on Supreme Court precedent <\/a>that looks to \u201chistorical practice\u201d when assessing the validity of state criminal procedure laws. Alito then criticised the majority\u2019s \u201csweeping pronouncement regarding restitution\u201d, arguing that it was both \u201cunnecessary\u201d and misguided. Alito wrote: \u201c[the majority] overlooks important differences between restitution, which is paid to the victims of an offense, and fines and other payments that are kept by the State.\u201d Alito found it \u201cstartling\u201d to \u201cinsist that a State must provide a refund after enforcing a restitution judgment on the victims\u2019 behalf in reliance on a final <\/em>judgment that is then vacated on collateral <\/em>review\u201d (emphasis in original).<\/p>\n","innerContent":["\n In his concurrence, Justice Alito concluded that Colorado\u2019s statute was unconstitutional, but did so by a different route, basing his analysis on Supreme Court precedent <\/a>that looks to \u201chistorical practice\u201d when assessing the validity of state criminal procedure laws. Alito then criticised the majority\u2019s \u201csweeping pronouncement regarding restitution\u201d, arguing that it was both \u201cunnecessary\u201d and misguided. Alito wrote: \u201c[the majority] overlooks important differences between restitution, which is paid to the victims of an offense, and fines and other payments that are kept by the State.\u201d Alito found it \u201cstartling\u201d to \u201cinsist that a State must provide a refund after enforcing a restitution judgment on the victims\u2019 behalf in reliance on a final <\/em>judgment that is then vacated on collateral <\/em>review\u201d (emphasis in original).<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-quote","attrs":{"quote":" \u201cThe Circuit expressly reserved judgement on the issue of whether a wrongfully convicted defendant may recover restitution when it has been distributed to victims.\u201d<\/p>","blockId":"1ynzuW","blockUniqueClass":"lazyblock-chambers-quote-1ynzuW"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n In the aftermath of Nelson, lower courts have disagreed about its scope, in part seizing on the distinction identified by Justice Alito as to whether restitution funds had already been released to victims. In United States v Medicine Horn<\/a>, one federal district court posited that \u201cthe restitution funds [in Nelson] had not been disbursed and were still possessed by the State of Colorado\u201d. After concluding that \u201cNelson did not address\u201d cases in which the restitution had been paid to victims, that court \u2013 relying in part on Alito\u2019s concurrence for support \u2013 held that in such a case the government need not \u201crefund\u201d the defendant. In United States v Brooks, the Second Circuit also concluded that in Nelson \u201cthe restitution was in the control of the state, not the victims\u201d. The Circuit expressly reserved judgement on the issue of whether a wrongfully convicted defendant may recover restitution when it has been distributed to victims.<\/p>\n","innerContent":["\n In the aftermath of Nelson, lower courts have disagreed about its scope, in part seizing on the distinction identified by Justice Alito as to whether restitution funds had already been released to victims. In United States v Medicine Horn<\/a>, one federal district court posited that \u201cthe restitution funds [in Nelson] had not been disbursed and were still possessed by the State of Colorado\u201d. After concluding that \u201cNelson did not address\u201d cases in which the restitution had been paid to victims, that court \u2013 relying in part on Alito\u2019s concurrence for support \u2013 held that in such a case the government need not \u201crefund\u201d the defendant. In United States v Brooks, the Second Circuit also concluded that in Nelson \u201cthe restitution was in the control of the state, not the victims\u201d. The Circuit expressly reserved judgement on the issue of whether a wrongfully convicted defendant may recover restitution when it has been distributed to victims.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n On the other hand, a California state court recently disagreed, stating in dictum that, although \u201cnot expressly addressed in [Nelson], the appealed-from state court opinions make clear that in the consolidated Colorado cases \u2026 the restitution funds paid by the defendants had already been paid to the victims\u201d, and that fact did \u201cnot alter the high court's holding that the state was required to repay the defendants\u201d. In fact, the opinions of the Colorado Supreme courts, which were clearly part of the record before the Nelson court, indicate that at least a portion of the restitution in those cases had <\/em>been paid over to victims, although the majority\u2019s opinion did not explicitly address that fact.<\/p>\n","innerContent":["\n On the other hand, a California state court recently disagreed, stating in dictum that, although \u201cnot expressly addressed in [Nelson], the appealed-from state court opinions make clear that in the consolidated Colorado cases \u2026 the restitution funds paid by the defendants had already been paid to the victims\u201d, and that fact did \u201cnot alter the high court's holding that the state was required to repay the defendants\u201d. In fact, the opinions of the Colorado Supreme courts, which were clearly part of the record before the Nelson court, indicate that at least a portion of the restitution in those cases had <\/em>been paid over to victims, although the majority\u2019s opinion did not explicitly address that fact.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n The Ninth Circuit is the only circuit court to have decided this issue, although it did so well before Nelson was decided and did not reach the constitutional issue. In United States v Hayes<\/a>, the Ninth Circuit held that a wrongfully convicted defendant could not recover his restitution payments, already distributed to victims, reasoning that \u201cthe government merely served as an escrow agent pending the final judgment and at the proper time paid the funds over to the victims\u201d. The Circuit proclaimed that the government cannot \u201creturn money it no longer has\u201d, and has reaffirmed Hayes as recently as June 2023 (in United States v Washington<\/a>). Importantly, however, these decisions were decided based on Federal Rule of Criminal Procedure 41(g) and did not explicitly consider whether there is a constitutional right to recover the money.<\/p>\n","innerContent":["\n The Ninth Circuit is the only circuit court to have decided this issue, although it did so well before Nelson was decided and did not reach the constitutional issue. In United States v Hayes<\/a>, the Ninth Circuit held that a wrongfully convicted defendant could not recover his restitution payments, already distributed to victims, reasoning that \u201cthe government merely served as an escrow agent pending the final judgment and at the proper time paid the funds over to the victims\u201d. The Circuit proclaimed that the government cannot \u201creturn money it no longer has\u201d, and has reaffirmed Hayes as recently as June 2023 (in United States v Washington<\/a>). Importantly, however, these decisions were decided based on Federal Rule of Criminal Procedure 41(g) and did not explicitly consider whether there is a constitutional right to recover the money.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"Arguments to recover restitution that has been paid to victims","headerLevel":"2","blockId":"1G9SyN","blockUniqueClass":"lazyblock-chambers-header-1G9SyN"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Wrongfully convicted defendants can marshal several arguments in support of their effort to recover restitution that has been distributed to victims. First, defendants can argue that Nelson, with its broad language and underlying facts, represents binding precedent that requires the government to repay restitution under any circumstances, even if it has already been paid to victims; Justice Alito certainly read the majority opinion that way. Even within the Ninth Circuit, defendants could argue that Nelson is controlling authority as to the all-important constitutional issue.<\/p>\n","innerContent":["\n Wrongfully convicted defendants can marshal several arguments in support of their effort to recover restitution that has been distributed to victims. First, defendants can argue that Nelson, with its broad language and underlying facts, represents binding precedent that requires the government to repay restitution under any circumstances, even if it has already been paid to victims; Justice Alito certainly read the majority opinion that way. Even within the Ninth Circuit, defendants could argue that Nelson is controlling authority as to the all-important constitutional issue.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Second is fundamental fairness: returning money which the government (and victims) were never truly entitled to is the least a government can do for a wrongfully convicted defendant. As Justice Roberts commented in the oral argument of Nelson, even if the government cannot restore the time that wrongfully convicted defendants spent in jail, at least it \u201ccan give them the money back\u201d.<\/p>\n","innerContent":["\n Second is fundamental fairness: returning money which the government (and victims) were never truly entitled to is the least a government can do for a wrongfully convicted defendant. As Justice Roberts commented in the oral argument of Nelson, even if the government cannot restore the time that wrongfully convicted defendants spent in jail, at least it \u201ccan give them the money back\u201d.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Third, the notion that the government \u201cno longer has the money\u201d is questionable. Money is fungible. As petitioners in Nelson argued during oral argument<\/a>, in all cases of restitution \u201cthe State is spending on something \u2026 the State isn\u2019t hiding that money under the mattress\u201d. Therefore, it makes little sense to differentiate between instances where the money was given to victims and instances where the state used the money for any number of other things.<\/p>\n","innerContent":["\n Third, the notion that the government \u201cno longer has the money\u201d is questionable. Money is fungible. As petitioners in Nelson argued during oral argument<\/a>, in all cases of restitution \u201cthe State is spending on something \u2026 the State isn\u2019t hiding that money under the mattress\u201d. Therefore, it makes little sense to differentiate between instances where the money was given to victims and instances where the state used the money for any number of other things.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n Fourth, even if Nelson is not controlling on this issue, the decision lays the groundwork for arguing that the government still owes the wrongfully convicted defendant a debt even if it \u201cno longer has the money\u201d. This is because once a conviction is vacated, in retrospect, the state never <\/em>had a legitimate <\/em>legal right to the money. By rejecting Colorado\u2019s theory that the money became \u201cpublic funds\u201d, the Supreme Court implicitly recognised that defendants retain a property interest in their money even when it was exacted pursuant to a then-proper conviction. Therefore, as the petitioners in Nelson argued<\/a>, \u201cit\u2019s no excuse when you owe a debt to say, oh, gees, I\u2019m sorry, I already spent the money on something else\u201d.<\/p>\n","innerContent":["\n Fourth, even if Nelson is not controlling on this issue, the decision lays the groundwork for arguing that the government still owes the wrongfully convicted defendant a debt even if it \u201cno longer has the money\u201d. This is because once a conviction is vacated, in retrospect, the state never <\/em>had a legitimate <\/em>legal right to the money. By rejecting Colorado\u2019s theory that the money became \u201cpublic funds\u201d, the Supreme Court implicitly recognised that defendants retain a property interest in their money even when it was exacted pursuant to a then-proper conviction. Therefore, as the petitioners in Nelson argued<\/a>, \u201cit\u2019s no excuse when you owe a debt to say, oh, gees, I\u2019m sorry, I already spent the money on something else\u201d.<\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"core\/paragraph","attrs":[],"innerBlocks":[],"innerHTML":"\n While such arguments would face the obstacles presented by the lower court decisions discussed above, wrongly convicted defendants may nevertheless seek refuge in the broad language and principles espoused by Nelson. <\/p>\n","innerContent":["\n While such arguments would face the obstacles presented by the lower court decisions discussed above, wrongly convicted defendants may nevertheless seek refuge in the broad language and principles espoused by Nelson. <\/p>\n"]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-header","attrs":{"header":"Sher Tremonte LLP","headerLevel":"3","blockId":"15jey","blockUniqueClass":"lazyblock-chambers-header-15jey"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/chambers-media-list","attrs":{"media-list":"%5B%7B%22image%22:%7B%22alt%22:%22Sher%20Tremonte,%20Expert%20Focus%20contributor%22,%22title%22:%22Sher%20Tremonte%20logo%20chambers%22,%22caption%22:%22%22,%22description%22:%22%22,%22id%22:18251,%22link%22:%22https:\/\/wpcms.chambers.com\/?attachment_id=18251%22,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08143527\/Sher-Tremonte-logo-chambers.jpg%22,%22sizes%22:%7B%22thumbnail%22:%7B%22height%22:120,%22width%22:120,%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08143527\/Sher-Tremonte-logo-chambers-120x120.jpg%22,%22orientation%22:%22landscape%22%7D,%22full%22:%7B%22url%22:%22https:\/\/assets.chambers.com\/wp-content\/uploads\/2023\/11\/08143527\/Sher-Tremonte-logo-chambers.jpg%22,%22height%22:210,%22width%22:210,%22orientation%22:%22landscape%22%7D%7D%7D,%22title%22:%221%20ranked%20department%20and%204%20ranked%20lawyers%22,%22buttonUrl%22:%22https:\/\/chambers.com\/law-firm\/sher-tremonte-llp-usa-5:22611446%22,%22buttonName%22:%22View%20firm%20profile%22,%22content%22:%22Learn%20more%20about%20the%20firm's%20ranking%20in%20Chambers%20USA%22%7D%5D","blockId":"Z2v6phP","blockUniqueClass":"lazyblock-chambers-media-list-Z2v6phP"},"innerBlocks":[],"innerHTML":"","innerContent":[]},{"blockName":null,"attrs":[],"innerBlocks":[],"innerHTML":"\n\n","innerContent":["\n\n"]},{"blockName":"lazyblock\/promo-block","attrs":{"title":"Chambers In Focus Newsletter","content":"Sign up for our newsletter and never miss out on thought leadership content from legal experts and the key stories driving the legal profession forward.","button-title":"Sign up here","button-url":"https:\/\/crm.chambers.com\/l\/854103\/2023-07-05\/h7hd2","blockId":"Z2umR9i","blockUniqueClass":"lazyblock-promo-block-Z2umR9i"},"innerBlocks":[],"innerHTML":"","innerContent":[]}],"new_scheduled_revision":null,"save_as_revision":null,"acf":{"sponsored_page":false,"index_page":"","useful_links":false,"social_sharing_post_options":{"alignment":"left","sticky":false},"title":"","sponsors_list":{"sponsors":false,"showhide_borders":false},"template":{"name":"text-rich-media","sticky_sidebar":false},"hero_title":"","hero_image":false,"hero_retina_image":false,"media_type":"article","firm_page_url":"https:\/\/chambers.com\/law-firm\/sher-tremonte-llp-usa-5:22611446"},"yoast_head":"\n\n\n\n\n\n\n\n\n\n\n