US vs. Razzouk: Second Circuit Addresses the Mandatory Victims Restitution Act

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In 2011, Sassine Razzouk pled guilty and was convicted of accepting bribes in violation of 18 U.S.C. §666(a)(1)(B) and three counts of tax evasion in violation of 26 U.S.C. §7201. Razzouk was accused of manipulating contractor bidding systems while he was employed by Consolidated Edison Company of New York (Con Edison) to benefit a company called Rudell & Associates, which was operated by a friend of his.

Razzouk was sentenced to 78 months in prison and ordered to pay $6.87 million in restitution to Con Edison and its insurer, and $1.99 million to the IRS.

Razzouk appealed, claiming that he should not have been ordered to pay restitution because his crimes did not constitute offenses “against property” under the Mandatory Victims Restitution Act (MVRA) (18 U.S.C. § 3663A(c)(1)(A)(ii)), and that the loss to Con Edison caused by Razzouk was incorrectly calculated.

Razzouk Appeals Conviction for Bribery and Tax Evasion

From 2007 to 2011, Razzouk worked as a manager at Con Edison. Prosecutors claim that Razzouk abused his position by manipulating bidding contracts to benefit Rudell & Associates. Razzouk pled guilty to one charge of accepting bribes and three counts of tax evasion. Razzouk agreed to provide information about his co-conspirators in exchange for the prosecution’s promise to ask the court to impose a more lenient sentence than what is required under the Federal Sentencing Guidelines.

Razzouk ultimately broke his promise to cooperate, and the prosecution did not file a letter in support of a downward departure from the Guidelines. Razzouk was sentenced to 78 months in prison, and ordered to pay $6.87 million in restitution to Con Edison and its insurer, and $1.99 million to the IRS. The court found that Razzouk’s crimes were crimes against property, which triggered application of the MVRA.

On appeal, Razzouk claimed that his crimes were not offenses against property and, therefore, that the MVRA did not apply. Razzouk argued that the MVRA was intended to provide restitution for victims of violent crimes, and that his crimes were not crimes of violence. If the appellate court found that the MVRA did not apply, then the decision to award restitution would be discretionary and the court could opt not to order restitution.

Second Circuit Identifies Pecuniary Interest as a Crime Against Property

On appeal, Razzouk sought to apply a “categorical approach” that is commonly applied in cases involving the Armed Career Criminal Act. Under this approach, the elements of the offense determine whether an offense qualifies as a predicate offense, rather than the specific facts of the case.

The court rejected that approach, finding that the specific facts of Razzouk’s case could be considered in determining whether he committed a crime against property.

In analyzing Razzouk’s case, the court relied on the fact that the MVRA refers to an offense “committed by fraud or deceit” and that this phrase implies a focus on the nature of the crime itself, rather than the statutory elements. The court also noted that its interpretation aligns with the purpose of the MVRA, which is to make the victim whole.

The Second Circuit found that, although the language used in the Mandatory Victims Restitution Act “is subtle,” it suggests “that a court may look to the manner in which a particular crime was committed to determine if it is an ‘offense against property’ [that] would trigger a restitution under the MVRA.”

The court found that Razzouk’s crimes were crimes against property and subject to the MVRA because they “deprived Con Edison of a property interest in its fund through his facilitation of its payments” for phantom work. The court noted that Con Edison had a pecuniary interest in the form of payments made to Rudell for which Con Edison received no consideration, and that deprivation of a pecuniary interest qualifies as a deprivation of property.

The decision in Razzouk represents a continuation of the Second Circuit’s broad interpretation of the scope of restitution. While the application of the categorical approach is common, the decision makes clear that the Second Circuit will only apply it in cases where it is required, as applying the categorical approach would require courts to engage in an intricate legal inquiry to determine whether or not crimes were committed against a victim’s property interests, rather than analyzing the specific facts of a case.

Mandatory Restitution in Sentencing Guidelines Puts Defendants at a Disadvantage

Razzouk is another example of how the strict application of federal sentencing guidelines place defendants at a disadvantage. Enacted in 1987 to make federal sentencing more uniform across the country, federal sentencing guidelines simply encourage prosecutors to file cases in a way that will result in the harshest sentences possible and take away a judge’s discretion to change a sentence based on an individual’s unique circumstances.

To have any hope of a judge deviating from federal sentencing guidelines that impose harsh sentences that include lengthy prison terms, hefty fines, and orders to pay restitution, you need to work with an experienced federal criminal defense attorney who will argue to have your sentence mitigated.

Federal criminal defense attorney Hope Lefeber has been defending people accused of crimes in federal court for more than 30 years. She has earned a reputation among her colleagues in the federal bar, federal judges, and her clients as a fierce defender of her client’s rights who is meticulously prepared and knows how to get the best results at sentencing.

Ms. Lefeber has a deep knowledge of federal criminal law, and has successfully defended executives at Fortune 500 companies, businessmen and women, lawyers, doctors, and other high-profile clients who have been faced with federal criminal charges. She frequently works with psychological, psychiatric, and forensic experts to educate judges as to why they should deviate from federal sentencing guidelines.

If you have been charged with a crime in federal court, contact Hope Lefeber today to schedule a confidential consultation to discuss your case.