United States v. Kuruzovich , 541 F. App'x 124 ( 2013 )

12-1789-cr
United States v. Kuruzovich
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3
4 SUMMARY ORDER
5
6 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL
7 EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
8 JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
9 OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.
10 WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
11 THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
12 OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
13 ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
14 OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
15
16 At a stated term of the United States Court of Appeals for the Second
17 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
18 Square, in the City of New York, on the 14th day of November, two thousand
19 thirteen.
20
21 PRESENT: PETER W. HALL,
22 CHRISTOPHER F. DRONEY,
23 Circuit Judges,
24 JANE A. RESTANI,
25 District Judge.*
26 ------------------------------------------------------------------
27
28 UNITED STATES OF AMERICA,
29
30 Appellee,
31
32 v. No. 12-1789-cr
33
34 PAUL KURUZOVICH,
35
36 Defendant-Appellant.
37
*
The Honorable Jane A. Restani, of the United States Court of International Trade, sitting by designation.
1
1 ------------------------------------------------------------------
2
3 APPEARING FOR APPELLANT: DANIEL NOOTER (Thomas H. Nooter, on the
4 brief), Freeman, Nooter & Ginsberg, New
5 York, New York.
6
7 APPEARING FOR APPELLEE: MICHAEL BOSWORTH (Andrew L. Fish,
8 Michael A. Levy on the brief), Assistant
9 United States Attorneys, for Preet Bharara,
10 United States Attorney for the Southern
11 District of New York, New York, New
12 York.
13 Appeal from a judgment of the United States District Court for the
14 Southern District of New York (Chin, J.).
15 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
16 ADJUDGED, AND DECREED that the restitution order of the district court is
17 ABATED, but the judgment is affirmed in all other respects.
18 Defendant-Appellant Paul Kuruzovich (“Kuruzovich”) was charged in an
19 information with blackmail in violation of 18 U.S.C. § 873. During trial,
20 Kuruzovich pled guilty to the information, which alleged that he wrote emails to
21 his former employer, Guidepoint Global LLC (“Guidepoint”), threatening that he
22 would inform law enforcement authorities that Guidepoint had engaged in
23 insider trading unless he received commissions, benefits, and severance
24 payments he believed he was owed. At Kuruzovich’s sentencing on January 9,
25 2012, the district court, Chin, J., imposed a sentence of incarceration of one year,
26 a supervised release term of one year, and a mandatory special assessment of
27 twenty-five dollars, but withheld entry of judgment pending a final
28 determination of restitution. On April 13, 2012, the district court Chin, J., ordered
29 Kuruzovich to pay $59,652.85 in restitution to Guidepoint under the Mandatory
30 Victims Restitution Act, 18 U.S.C. § 3663A, for legal expenses Guidepoint
2
1 incurred assisting the government in investigating and prosecuting Kuruzovich.
2 A written judgment was filed on April 18, 2012, including the restitution award.
3 Kuruzovich appealed only the restitution portion of the judgment, challenging
4 the district court’s conclusion that restitution was mandatory as well as the
5 amount ordered.
6 During the pendency of this appeal, but after completing his term of
7 imprisonment, Kuruzovich died. This Court directed the parties to brief whether
8 Kuruzovich’s death abated the district court’s restitution order. In that briefing,
9 neither party challenged the dismissal of the present appeal under the unique
10 circumstances of this case; both parties supported vacating or abating the
11 restitution order. Additionally, Kuruzovich’s prior employer, Guidepost, no
12 longer seeks compensation from Kuruzovich or his estate for Guidepost’s losses
13 through the restitution order.
14 We therefore decline to decide the broader question of whether a
15 defendant’s death may abate a restitution order. We came to a similar conclusion
16 in United States v. Wright, in which we held that, given that the deceased
17 defendant’s restitution payments were not due until he completed his period of
18 incarceration and he died during his incarceration, the time to commence making
19 payments could never arrive so the restitution order was futile and thus was
20 abated. 160 F.3d 905, 909 (2d Cir. 1998). Here, although the restitution payments
21 are now due, the appellant has died and his estate apparently has no assets with
22 which to satisfy the restitution order. Additionally, Guidepost has indicated that
23 it no longer seeks to benefit from the restitution order. Finally, both parties,
24 through their supplemental briefs, consented to vacating or abating the
25 restitution order. Thus, in light of the positions of the parties and victim, we hold
3
1 that the restitution order is abated, but that the judgment of conviction is
2 affirmed in all other respects.
3
4 FOR THE COURT:
5 CATHERINE O’HAGAN WOLFE, Clerk of Court
4