United States v. John Lipton

FILED
NOT FOR PUBLICATION DEC 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50388
Plaintiff - Appellee, D.C. No. 2:05-cr-00316-DSF-1
v.
MEMORANDUM *
JOHN S. LIPTON,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted December 5, 2012 **
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
John Lipton appeals a $2,915,427.16 restitution order, imposed after he pleaded
guilty to conspiring to defraud the United States of tax revenue in violation of 18
U.S.C. § 371 and to willfully attempting to evade assessment and payment of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
individual income taxes in violation of 26 U.S.C. § 7201. He argues that the district
court abused its discretion by holding him jointly and severally liable with his co-
conspirators for the full amount of tax loss caused by the conspiracy.
Under 18 U.S.C. § 3664(h), the district court had the discretion either to “make
each defendant liable for payment of the full amount of restitution or . . . apportion
liability among the defendants to reflect the level of contribution to the victim’s loss
and economic circumstances of each defendant.” The district court expressly noted
its discretion under the statute and chose to impose the full amount of restitution upon
Lipton. The court noted that Lipton was not just a participant in the conspiracy, but
was a manager and likely a leader. These observations are supported by the record;
the district court therefore did not abuse its discretion by imposing the full amount of
restitution upon Lipton.
Lipton also argues that the district court erred by imposing upon him the full
amount of restitution because lesser amounts were imposed on some (but not all) of
his co-conspirators. Because this argument was not made until his reply brief, it was
waived. See United States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006). But even
assuming the argument was not waived, we find it unpersuasive. Under § 3664(h),
a judge may structure differing restitution amounts jointly and severally. See United
States v. Foreman, 329 F.3d 1037, 1039 (9th Cir. 2003) overruled on other grounds
2
by United States v. Jacobo Castillo, 496 F.3d 947, 949 (9th Cir. 2007) (en banc);
United States v. Klein, 476 F.3d 111, 114 (2d Cir. 2007).
Finally, Lipton suggests that his restitution obligation will not be reduced by
the amount of payments made by his co-conspirators. Such a concern is unmerited.
Any payment made by one of the designated co-conspirators will reduce the total
amount of restitution required from Lipton; a contrary result would improperly permit
the United States to recover more restitution than the harm it suffered as a result of the
conspiracy. See Klein, 476 F.3d at 114.
AFFIRMED.
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