United States v. Gushlak , 728 F.3d 184 ( 2013 )

12-1919-cr
United States v. Gushlak
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2012
(Argued: May 1, 2013 Decided: August 29, 2013)
Docket No. 12-1919-cr
-------------------------------------
UNITED STATES OF AMERICA,
Appellee,
-v-
MYRON L. GUSHLAK,
Defendant-Appellant.
-------------------------------------
Before: SACK, WESLEY, and CARNEY, Circuit Judges.
Appeal from an order of restitution entered pursuant to the
Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A, against Defendant-
Appellant Myron Gushlak in the United States District Court for the Eastern
District of New York (Nicholas G. Garaufis, Judge). We conclude that the district
court had authority to enter the restitution order, that the restitution proceedings
satisfied Gushlak's rights under the Due Process Clause of the Fifth Amendment,
and that the district court's loss calculation was a reasonable estimate grounded
in a sound basis for approximation of the full amount of identified victims' losses.
Affirmed.
ELIZABETH BERNEY, Great Neck, New York, for
Defendant-Appellant.
DANIEL A. SPECTOR, (David C. James, on the
brief) for Loretta E. Lynch, United States Attorney
for the Eastern District of New York, Brooklyn,
New York, for Appellee.
SACK, Circuit Judge:
Defendant-appellant Myron Gushlak challenges, on various
grounds, the May 15, 2012, restitution order entered against him in the United
States District Court for the Eastern District of New York (Nicholas G. Garaufis,
Judge). The order, which was entered pursuant to the Mandatory Victims
Restitution Act of 1996, 18 U.S.C. § 3663A, awarded a total of $17,492,817.45 to
victims for losses stemming from Gushlak's role in the manipulation of the price
of a publicly traded security. We affirm.
2
BACKGROUND
The Fraudulent Scheme
In late 1999, Gushlak, a controlling owner of a telecommunications
company, GlobalNet, Inc., took the company public by reverse merging it into a
publicly traded shell company, Rich Earth, Inc., which he also controlled. Over
the course of the next year, he and his coconspirators engaged in a securities
fraud in the form of a so-called "pump-and-dump" scheme. Gushlak, with the
help of conconspirators at two broker-dealers, LCP Capital ("LCP") and Montrose
Capital ("Montrose"), artificially inflated the price of GlobalNet's stock ("GBNE").
He then sold his own shares at a substantial profit.
The coconspirators accomplished their scheme through both
misstatements and manipulative trading practices. According to Gushlak's later
plea allocution in this case,1 Gushlak induced his coconspirators at LCP and
Montrose to convince their clients, through misrepresentations, to buy
approximately one million GBNE shares for between $11.86 and $15.93 per share.
The conspirators knew that these prices overvalued GlobalNet's worth.
1
The events that led to the plea of guilty at which the allocution was made
are described in the next section below.
3
Another tactic was for broker-dealers at LCP or Montrose to take
funds that investors had invested in legitimate stocks and purchase GBNE shares
with the funds instead. The conspirators further inflated GBNE's price and
maintained the inflated price by discouraging investors from selling GBNE stock,
or by simply failing to carry out sell orders. Gushlak paid kick-backs and
commissions to his coconspirators for their efforts.
By the summer of 2000, however, the bottom had begun to fall out of
the scheme. Some investors began to suspect that manipulative practices were
being employed, so they short-sold GBNE in order to profit from its ultimate
deflation. Around the same time, Montrose stopped pressuring its customers to
purchase GBNE shares and began processing their sell orders. And also at about
that time, there was a market-wide collapse of the price for tech stocks like
GBNE, the so-called "bursting of the dot-com bubble."2 According to an affidavit
submitted by an FBI Agent present at a proffer session with Gushlak, Gushlak
admitted that he made a last-ditch effort to "support[] the [stock] price" with his
own money in June 2000. Aff. of Derrick Acker, Oct. 20, 2011, at ¶ 3, Joint App'x
2
See, for example, Litman v. United States, 78 Fed. Cl. 90, 120 (Fed. Cl.
2007), referring to the late 20th Century "'frenzy over internet stocks,' that has
since become known as the 'dot-com bubble.'"
4
at 616. But this apparently did not work for long; by January 1, 2001, GBNE's
stock price had fallen from a midsummer high of more than $25 per share to less
than $3 per share.
Gushlak's Guilty Plea
In July 2003, Gushlak pleaded guilty in the United States District
Court for the Eastern District of New York to an information charging one count
of conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371, and one
count of conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956.
On November 18, 2010, the district court sentenced him to seventy-two months'
imprisonment and a $25 million fine. The district court ordered the parties to
submit briefing on the issue of restitution, pursuant to the Mandatory Victims
Restitution Act of 1996, 18 U.S.C. § 3663A, stating that it would resolve the issue
within ninety days.
The court entered judgment while the restitution issue remained
pending in order to enable Gushlak to appeal his conviction and sentence
immediately. Had the appeal been successful, Gushlak would have been
relieved of his criminal responsibility in relatively short order and never have
been required to complete the restitution inquiry. But a panel of this Court
5
affirmed the judgment by summary order. United States v. Gushlak, 495 F. App'x
132 (2d Cir. 2012).
The Restitution Proceedings
The ninety-day estimate the district court gave for the restitution
order, through no fault of the court's, proved optimistic. Nearly eighteen months
would pass, during which time the government made four different restitution
submissions, before the district court finally entered an order of restitution on
May 15, 2012, based on the fourth submission.
The government's first submission seeking restitution was filed on
December 20, 2010. In it, the government argued that victim loss amounts could
be established by means other than so-called "affidavits of loss" -- forms filled out
by victims attesting to losses they suffered -- and purported to rely upon trading
records to determine that the losses attributable to fraud amounted to
$20,468,876.29. The district court declined to enter a restitution order based on
that submission, however, because the government had failed to explain its
methodology or to provide a list of each victim and his, her, or its losses. United
States v. Gushlak, No. 03-cr-833(NGG), 2011 WL 128359 at *2, 2011 U.S. Dist.
LEXIS 3864 at *6 (E.D.N.Y. Jan. 14, 2011).
6
The government tried again on January 26, 2011. Again it argued
that the appropriate loss calculation was $20,468,876.29. This time it attached the
expert report of one Peter Melley, then the Assistant Director of the Criminal
Prosecution Assistance Group at the Financial Industry Regulatory Authority.
Gushlak opposed the restitution request on the grounds that the government was
required to use affidavits of loss rather than trading records to establish victim
losses, and that the government's methodology was in any event flawed. The
district court agreed with the government that losses could be established
through trading records, but it agreed with Gushlak that the government's
methodology was deficient. United States v. Gushlak, No. 03-cr-833(NGG), 2011
WL 782295, 2011 U.S. Dist. LEXIS 18177 (E.D.N.Y. Feb. 24, 2011). This was
because, the court concluded, it rested upon the unsupported assumption that
GBNE had no value at all that had not been imparted to it by the fraud. Id. at *5-
*7, 2011 U.S. Dist. LEXIS 18177 at *16-*23.
The government's third try to establish a restitution amount, filed
April 15, 2011, fared no better. In this submission, the government requested a
dramatically reduced sum of $8,950,032.54. But the methodological adjustment
was relatively crude: The government essentially (1) subtracted the value of any
shares victims still held at the time the trading records ended, which it had
7
previously deemed worthless; and then (2) lopped 20% from that number,
ostensibly to account for victim losses caused by declines in the stock market
generally around this time.
The district court, again unsatisfied, denied the government's
request on July 26, 2011. United States v. Gushlak, No. 03-cr-833(NGG), 2011 WL
3159170, 2011 U.S. Dist. LEXIS 81525 (E.D.N.Y. July 26, 2011). But the court
granted the government leave "to try one last time," providing relatively detailed
guidance as to what sort of showing might suffice. Id. at *1, *6-*8, 2011 U.S. Dist.
LEXIS 81525 at *1, *24-*30. The court expressed the view that it "would be
unfortunate" if the government failed to obtain restitution for victims. Id. at *8,
2011 U.S. Dist. LEXIS 81525 at *30.
On October 24, 2011, nearly a year after Gushlak had been
sentenced, the government filed its fourth restitution request. On April 20, 2012,
the court issued a Memorandum & Order finding that Gushlak's fraud had
caused losses to victims in the amount of $17,492,817.45. United States v. Gushlak,
No. 03-cr-833, 2012 WL 1379627, 2012 U.S. Dist. LEXIS 56009 (E.D.N.Y. Apr. 20,
2012).
The government's first improvement from its previous efforts was
the submission of three affidavits, two from coconspirators Salvatore Romano
8
and Howard Appel, and the third from FBI Agent Derrick Acker. They,
combined with Gushlak's plea allocution, placed before the district court a
general picture of the nature and timing of the conspiracy much like the one we
have drawn above. Specifically, the district court relied upon the affidavits to
establish the mechanisms by which Gushlak and his coconspirators manipulated
GBNE's price; the fact of manipulation throughout the year 2000; and that
fraudulent activity had ceased by the end of 2000. Id. at *6-*7, 2012 U.S. Dist.
LEXIS 56009 at *16-*18.
The government then relied upon a statistician named David
DeRosa to fill in the numbers. DeRosa was at the time an instructor of a graduate
level course in Financial Engineering at Columbia University and the president
and owner of his own financial consulting firm. Decl. of David F. DeRosa, Ph.D.
("DeRosa Rep."), Oct. 24, 2011, at 2, Joint App'x at 620. His expert report and the
testimony he gave at a hearing held on February 14, 2012, sought to provide the
court with a model for calculating investor losses.
DeRosa's model -- to a non-expert, at least, an apparently complex
exercise in statistics and corporate finance -- was in essence designed to
determine what GBNE's share price would have been at the times investors
bought and sold it had it not been manipulated by fraud. DeRosa labeled this
9
GBNE's "fair market price." Id. at 5, Joint App'x at 623. By subtracting the fair
market price from GBNE's actual closing price, DeRosa could determine what is
sometimes referred to as the "inflationary component"3 of the price -- the portion
of the price that is the result of fraudulent factors. Id.
DeRosa then looked to the available trading records for transactions
in GBNE stock during the time its value was manipulated to determine the
number of shares purchased and prices paid by individual investors. DeRosa
Rep. at 16-17, Joint App'x at 634-35. The rest was arithmetic: Each victim's loss
was equal to the inflationary component paid -- the actual price paid less the fair
market price DeRosa had calculated -- minus, in the event the investor sold
GBNE stock before the entire inflationary component had dissipated, any
inflationary component recouped by that sale. Id. By this method, he calculated
total losses of $17,492,817.45. Id. at 19, Joint App'x at 637.
3
The phrase "inflationary component" refers to the inflation of GBNE's
stock price that is the result of fraud, see generally FindWhat Investor Grp. v.
FindWhat.com, 658 F.3d 1282, 1315-16 (11th Cir. 2011) (using the term in this
manner), and has nothing to do with the word "inflation" as it is often used:
"'[T]he increase in the volume of money and credit relative to available goods
resulting in a substantial and continuing rise in the general price level.' Webster's
Third International Dictionary (1965)." Kaczkowski v. Bolubasz, 491 Pa. 561, 565
n.4, 421 A.2d 1027, 1029 n.4 (1980).
10
Gushlak attempted to refute DeRosa's analysis through testimony of
experts of his own, David Juran, a senior lecturer at Columbia University's
Graduate School of Business, and Robert Lowry, a retired twenty-three year
veteran accountant at the Securities and Exchange Commission and the president
of his own consulting firm. Juran testified before the district court at the same
February 14, 2012, hearing at which DeRosa offered his testimony. The district
court continued that hearing until April 13, 2012, to permit Lowry to testify. But
eventually the court credited DeRosa's methodology virtually in its entirety.
The district court entered a final restitution order on May 15, 2012,
based on the submission that was supported by DeRosa's methodology. Gushlak
appeals.
DISCUSSION
"Federal courts have no inherent power to order restitution . . . ."
United States v. Zangari, 677 F.3d 86, 91 (2d Cir. 2012). "A sentencing court's
power to order restitution, therefore, depends upon, and is necessarily
circumscribed by, statute." Id.One such statutory provision -- the one at issue here -- is the
Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A. The
MVRA provides, insofar as is relevant here, that a sentencing court "shall order,
11
in addition to . . . any other penalty authorized by law," defendants convicted of
specified crimes to "make restitution to the victim of the offense." Id.
§ 3663A(a)(1). Section 3663A also contains, or incorporates by reference,
procedures and standards governing the award of restitution. See id.
§§ 3663A(d), 3664.
"In general, we review an MVRA order of restitution deferentially,
and we will reverse only for abuse of discretion." United States v. Boccagna, 450
F.3d 107, 113 (2d Cir. 2006) (internal quotation marks omitted). A district court
abuses its discretion when "a challenged ruling rests on an error of law, a clearly
erroneous finding of fact, or otherwise cannot be located within the range of
permissible decisions." Id. (internal quotation marks omitted). Where Gushlak
challenges the district court's finding of facts, we review for clear error; where his
arguments raise questions of law, our review is de novo. United States v. Reifler,
446 F.3d 65, 120 (2d Cir. 2006).
I. The District Court's Authority
to Award Restitution
Based on two separate provisions of the MVRA, Gushlak's first two
arguments contest the district court's authority to order restitution in this case at
all.
12
A. Failure to Impose Restitution Within 90 Days
Section 3664(d)(5) provides that "[i]f the victim's losses are not
ascertainable by the date that is 10 days prior to sentencing, . . . the court shall set
a date for the final determination of the victim's losses, not to exceed 90 days after
sentencing." The district court violated this provision, Gushlak argues, because
although it stated its intention at sentencing to enter a final restitution order
within ninety days, it did not actually enter one until well past that deadline.
This argument presents a question of law, so our review is de novo. Reifler, 446
F.3d at 120.
The Supreme Court confronted the statutory deadline at issue here
in Dolan v. United States, 130 S. Ct. 2533 (2010). Reasoning in part that "the statute
seeks speed primarily to help the victims of crime and only secondarily to help
the defendant," id. at 2540, the court concluded that "a sentencing court that
misses the 90-day deadline nonetheless retains the power to order restitution -- at
least where, as here, the sentencing court made clear prior to the deadline's
expiration that it would order restitution, leaving open (for more than 90 days)
only the amount," id. at 2537; see also United States v. Pickett, 612 F.3d 147, 149 (2d
Cir. 2010) (per curiam) (applying Dolan's rule). On much the same rationale,
though viewing the matter through the somewhat different prism of harmless-
13
error analysis, we have declined to reverse a restitution order because of "a
district court's failure to determine identifiable victims' losses within ninety
days . . . unless [the defendant] can show actual prejudice from the omission."
United States v. Zakhary, 357 F.3d 186, 191 (2d Cir. 2004); see United States v.
Catoggio, 326 F.3d 323, 329-30 (2d Cir. 2003) (applying this rule).
These authorities control here. In Dolan's words, the district court
"made clear prior to the deadline's expiration that it would order restitution" -- it
said so on the record at Gushlak's sentencing hearing, Sentencing Tr., Nov. 18,
2010, at 105, Joint App'x at 2142 -- and "le[ft] open (for more than 90 days) only
the amount," Dolan, 130 S. Ct. at 2537;4 see also Pickett, 612 F.3d at 149. And we
find implausible Gushlak's assertion that the eighteen-month delay, when tacked
on to the decade or so that had elapsed between the conduct that caused the
4
We reject Gushlak's attempt to distinguish Dolan on the grounds that the
district court here stated its intention to enter its restitution order within ninety
days, as opposed, the argument appears to suggest, to stating explicitly both that
it would order restitution, and that it would not determine the amount until after
the ninety days had elapsed. This argument misunderstands Dolan's proviso, the
purpose of which, it seems to us, is to guard against a sentencing judge entering
what appears to be a final sentence, thus relinquishing authority to order
restitution, only then to impose restitution more than ninety days thereafter.
Gushlak was at all times fully aware that the sentence announced at his
sentencing hearing contained a blank space to be filled in with a dollar amount
once restitution proceedings had run their course. We think this is what Dolan
contemplates.
14
victims' losses and his sentencing, somehow hampered his ability to collect
victim information, causing him prejudice. It is without evidentiary support.
We therefore conclude that the district court was authorized to enter
the restitution order despite section 3664(d)(4)'s ninety-day requirement.
B. Complexity and Duration of Proceedings
Gushlak also points to 18 U.S.C. § 3663A(c)(3)(B), which provides
that the MVRA "shall not apply . . . if the court finds, from facts on the record,
that . . . determining complex issues of fact related to the cause or amount of the
victim's losses would complicate or prolong the sentencing process to a degree
that the need to provide restitution to any victim is outweighed by the burden on
the sentencing process." Id. He argues that the district court should have
declined to order restitution on this basis. We review a district court's
application of section 3663A(c)(3)(B) to the facts of a particular case for abuse of
15
discretion.5 In re W.R. Huff Asset Mgmt. Co., LLC, 409 F.3d 555, 563-64 (2d Cir.
2005).
Although we have encountered section 3663A(c)(3)(B) only
sporadically, we have from time to time discussed the sort of factors that might
inform a district court's balancing of "the need to provide restitution to any
victim" against "the burden on the sentencing process," 18 U.S.C. §
3663A(c)(3)(B).
Our most expansive discussion of the issue appears to be that
provided in United States v. Reifler. There, after vacating an MVRA award on
other grounds, we directed the district court to consider section 3663A(c)(3)(B) on
remand. Reifler, 446 F.3d at 139. We grounded our analysis in what we
understood to be Congress's purposes in enacting section 3663(c)(3)(B). They
were to ensure "that the process of determining an appropriate order of
restitution be 'streamlined,'" id. at 136 (quoting S. Rep. No. 104-179, at 20, 21
5
The government argues that Gushlak failed to raise section
3663A(c)(3)(B) before the district court, and that we should therefore review for
plain error. We doubt very much, upon review of the record, that Gushlak failed
adequately to alert the district court to his concerns regarding the duration and
complexity of the restitution proceedings. We need not resolve the question,
however, inasmuch as we conclude that the district court did not abuse its
discretion in awarding restitution despite the complexities of doing so.
16
(1995), reprinted in 1996 U.S.C.C.A.N. 924, 933-34), and "'that the sentencing
phase[s] of criminal trials [would] not become fora for the determination of facts
and issues better suited to civil proceedings,'" id. at 137 (quoting S. Rep. No. 104-
179, at 18). We noted, in light of the diverse class of alleged victims and the
circumstances of the fraud in that case, "difficult questions as to both the
causation requirement and the requirements for determining the timing and the
amounts of the losses caused." Id. at 135. That it would be difficult to "determine
a victim's actual loss on the basis of dates and prices that were not hypothetical,
assumed, or arbitrary . . . clearly implicate[d] section 3663A(c)(3)(B)." Id. at 138-
39; see also W.R. Huff Asset Mgmt., 409 F.3d at 563-64 (affirming district court's
decision not to award restitution on section 3663A(c)(3)(B) grounds).
But section 3663A(c)(3)(B) plainly does not require the district court
to surrender whenever one or more complex issues of causation or loss
calculation appear. To the contrary, the statute explicitly contemplates that the
district court weigh against the burden of ordering restitution the victims'
interests in receiving restitution. And it commits the balancing to the district
court's discretion, likely because it implicates what the Supreme Court has
referred to as "supervision of litigation," Pierce v. Underwood, 487 U.S. 552, 558 n.1
(1988), and because it requires a detailed understanding of and sensitivity to the
17
facts of each case; in other words, because it is the sort of task to which district
courts are better suited. Deference to the district court's consideration of the
issue is therefore typically warranted if "the record indicates that the district
court, although aware of the difficulties involved in ordering restitution[,] . . .
considered restitution an essential part of [the defendant's] sentence," Catoggio,
326 F.3d at 328.
So it is here. The record makes clear that the district court was
keenly aware of the difficulties of calculating restitution in this case. It was also
of the view, however, based on its decade-long supervision of the matter, that the
need to compensate victims outweighed challenges of measurement. After all, as
the district court found, "Gushlak ha[d] admitted to stealing from a large number
of people what likely amounted to a significant portion of their personal wealth."
Gushlak, 2011 WL 3159170 at *8, 2011 U.S. Dist. LEXIS 81525 at *30.
We think it worth noting again, moreover, that the district court
entered an appealable judgment while restitution proceedings were pending so
as to enable Gushlak to appeal from his conviction and sentence as quickly as
possible. If this Court were to have vacated the conviction, then, it would have
done so in a reasonably timely manner and, in the bargain, perhaps rendered
further restitution proceedings unnecessary. This bolsters our view that the
18
district court exercised its discretion with the aims of the MVRA and Gushlak's
interests and rights firmly in mind.
We therefore conclude that the district court did not abuse its
discretion in awarding restitution despite the complexity and duration of the
restitution proceedings.
II. Reliance on Affidavits
We next address Gushlak's argument that the district court's reliance
on the three affidavits the government submitted with its fourth restitution
request violated his Fifth Amendment right to due process. As we have
described, the district court relied on the three affidavits -- two of them submitted
by coconspirators, one by an FBI agent -- for an overall view of the timing and
manner of the fraudulent scheme. Gushlak, 2012 WL 1379627 at *6-*7, 2012 U.S.
Dist. LEXIS 56009 at *16-*18. Gushlak maintains that the affidavits lack the
"indicia of reliability" required for use of hearsay evidence during sentencing
proceedings. Appellant's Br. at 69-70. His right to due process was denied, he
argues, because he had no opportunity to cross-examine the affiants, a defect he
maintains was compounded by the government's explicit representation that it
did not intend to rely on the affidavits to determine loss amount. Id.19
Although we have held that the Sixth Amendment's restrictions on
judicial factfinding do not apply to proceedings setting restitution amounts,
Reifler, 446 F.3d at 113-20, we have recognized that "[t]he Due Process Clause is
plainly implicated at sentencing," United States v. Martinez, 413 F.3d 239, 244 (2d
Cir. 2005) (internal quotation marks omitted), and that "defendants have a due
process interest in paying restitution only for losses actually sustained by
victims," Zakhary, 357 F.3d at 191 n.4. Nevertheless, "[d]ecisions as to what types
of procedure are needed lie within the discretion of the sentencing court and are
reviewed for abuse of discretion." United States v. Slevin, 106 F.3d 1086, 1091 (2d
Cir. 1996). And "[w]e have noted, in the context of contested issues regarding the
propriety of a restitution award, that the sentencing procedures employed to
resolve such disputes are within the district court's discretion so long as the
defendant is given an adequate opportunity to present his position." United
States v. Sabhnani, 599 F.3d 215, 257-58 (2d Cir. 2010).
Gushlak was afforded that opportunity here. It is true that the
government justified its denial of Gushlak's request to make the affiants available
for live testimony by promising that its "submission to the Court and
presentation w[ould] be based entirely on Dr. DeRosa's testimony." Tr. of Status
Conf., Jan. 30, 2012, at 6, Joint App'x at 1698. But the government also
20
simultaneously averred that it "provided those affidavits really as background."
Id. And this, the district court explained, is the purpose for which it used them.
As explained below, the expert testimony of DeRosa did, as the government
promised it would, serve to establish the existence, timing, and effect of the
fraudulent conspiracy in which Gushlak participated. Gushlak had ample
opportunity, through submissions to the court, participation in status
conferences, and two lengthy hearings, to rebut the government's overall theory
of victim losses.
In light of the slight weight the affidavits were asked to bear, we
think the district court's decision that it was not required to expand the
evidentiary hearings to include the live testimony and cross-examination of the
affiants was within its discretion. Cf. United States v. Maurer, 226 F.3d 150, 151-52
(2d Cir. 2000) (per curiam) (affirming district court's decision not to hold a full
evidentiary hearing on victim losses where the defendant "had ample
opportunity to present his views"); Sabhnani, 599 F.3d at 257 (same).
III. Amount of Loss Directly and Proximately
Caused by the Offense
Gushlak's remaining grounds for appeal all focus on the accuracy of
the amount of the district court's restitution award.
21
A. Legal Standards Governing Loss
Calculation under the MVRA6
With one exception, the parties agree as to the standards governing a
district court's determination of the amount of a restitution award.
The MVRA directs sentencing courts to "order . . . that the defendant
make restitution to the victim of the offense." 18 U.S.C. § 3663A(a)(1). "Victim,"
as relevant here, is defined as "a person directly and proximately harmed as a
result of the commission of an offense for which restitution may be ordered." Id.
§ 3663A(a)(2).
This provision is obviously relevant to determining the type of
individuals entitled to restitution, which is not an issue presented on this appeal.
See, e.g., United States v. Marino, 654 F.3d 310, 320-21 (2d Cir. 2011). But also,
when read along with the balance of the MVRA, it is taken to mean that
restitution may be awarded only in the amount of losses directly and proximately
6
In setting forth the legal standards governing awards under the MVRA,
we rely also on cases applying materially identical provisions of another federal
restitution statute, the Victim and Witness Protection Act, 18 U.S.C. § 3663. See
United States v. Marino, 654 F.3d 310, 319 n.7 (2d Cir. 2011) ("Because the relevant
statutory language in the MVRA and VWPA is nearly identical, we include in our
analysis cases arising under both statutes.").
22
caused by the defendant's conduct.7 See Reifler, 446 F.3d at 115 (noting that
"additional proceedings" may be necessary for determining "the amounts of
loss to each [victim] that were directly and proximately caused by the defendant's
commission of the offense"); accord United States v. Squirrel, 588 F.3d 207, 215 (4th
Cir. 2009) ("[A]n order of restitution under the MVRA is to be based upon the
loss directly and proximately caused by the defendant's offense conduct."). The
government bears the burden of establishing loss amount under the MVRA. 18
U.S.C. § 3664(e). "Any dispute as to the proper amount . . . of restitution shall be
resolved by the court by the preponderance of the evidence." Id.; see also id.§ 3663A(d).
The parties' lone dispute concerning the standards governing the
calculation of loss amount arises out of language in our case law that "a court's
power to order restitution is limited to actual loss." United States v. Carboni, 204
7
As a general matter, restitution is permitted "only for an amount of loss
caused by the specific conduct forming the basis for the offense of conviction,"
United States v. Silkowski, 32 F.3d 682, 688 (2d Cir. 1994), although the parties may
provide otherwise in their plea agreement, id.; 18 U.S.C. §§ 3663A(a)(3), 3664(a).
We have in the past, exercising plain error review, affirmed a restitution award
imposing joint and several liability "payable by all convicted co-conspirators in
respect of damage suffered by all victims of a conspiracy, regardless of the facts
underlying counts of conviction in individual prosecutions." United States v.
Boyd, 222 F.3d 47, 50-51 (2d Cir. 2000) (per curiam).
23
F.3d 39, 47 (2d Cir. 2000) (emphasis added); see also United States v. Germosen, 139
F.3d 120, 130 (2d Cir. 1998) (restitution statute "requires a showing of actual
loss"); Catoggio, 326 F.3d at 329 (noting requirement that the district court identify
victims' "actual losses prior to imposing restitution"). This "actual loss"
requirement, Gushlak contends, conflicts with the standard the district court
applied insofar as the court accepted a "'reasonable estimate' of investor loss,"
Gushlak, 2012 WL 1379627 at *3, 2012 U.S. Dist. LEXIS 56009 at *7.
We disagree. We have used the term "actual loss" to distinguish the
sorts of losses cognizable in restitution proceedings from those cognizable under
the United States Sentencing Guidelines, which additionally recognize "intended
loss." Germosen, 139 F.3d at 130. The term has also served to emphasize the
MVRA's requirement that "the court shall order restitution to each victim in the
full amount of each victim's losses." 18 U.S.C. § 3664(f)(1)(A); Catoggio, 326 F.3d at
326. In other words, we have used the term to disapprove of loss calculations
that incorporate hypothetical or speculative losses, and those that arbitrarily fall
short of the "full amount."
But we have never used the word "actual" in this context to mean
"mathematically precise." Nor have we ever adopted a one-size-fits-all standard
of precision for application in restitution cases. To the contrary, our case law
24
reflects the settled understanding among courts of appeals8 that a "reasonable
approximation" will suffice, especially in cases in which an exact dollar amount is
inherently incalculable. See Catoggio, 326 F.3d at 329 (citing United States v.
Futrell, 209 F.3d 1286, 1292 (11th Cir. 2000), and describing it as "holding that
restitution could be based on a reasonable estimate of losses when it would be
impossible to determine the precise amount"); Germosen, 139 F.3d at 129, 130(explaining that, for purposes of calculating loss amount under the United States
Sentencing Guidelines, "the court need only make a reasonable estimate of the
loss," and later that the "quantity and quality of evidence the district court may
rely upon to determine the amount of loss is the same in both [the Guidelines and
restitution] contexts").
8
See United States v. Burdi, 414 F.3d 216, 221-22 (1st Cir. 2005) ("In
calculating the restitution amount [under the MVRA], absolute precision is not
required. . . . [T]he district court's obligation was to attempt to come to a
reasonable determination . . . ." (internal quotation marks omitted)); United States
v. Hand, 863 F.2d 1100, 1104 (3d Cir. 1988) ("Difficulties of measurement do not
preclude the court from ordering a defendant to compensate the victim through
some restitution."); United States v. Teehee, 893 F.2d 271, 274 (10th Cir. 1990) ("The
determination of an appropriate restitution amount is by nature an inexact
science."); United States v. Futrell, 209 F.3d 1286, 1291-92 (11th Cir. 2000) (per
curiam) ("[W]e hold that the district court did not abuse its discretion by
accepting a reasonable estimate of the amount of government loss caused
by . . . fraud. Because of the inevitable gaps in evidence in cases of this nature,
the district court properly applied the preponderance standard and did not abuse
its discretion by accepting the government's approximation of its actual losses.")
25
We reiterate that the MVRA requires only a reasonable
approximation of losses supported by a sound methodology. As explained by
the First Circuit, "the preponderance standard must be applied in a practical,
common-sense way. So long as the basis for reasonable approximation is at
hand, difficulties in achieving exact measurements will not preclude a trial court
from ordering restitution." United States v. Savoie, 985 F.2d 612, 617 (1st Cir. 1993).
B. Calculation of Losses in Artificial Inflation Cases
"The securities laws are intended to allow investors to buy, sell, or
hold based on accurate information." United States v. Ebbers, 458 F.3d 110, 127 (2d
Cir. 2006). A "pump-and-dump" scheme, by definition, seeks fraudulently to
alter the mix of available information for the purpose of artificially inflating a
stock price. This has the potential to harm investors who purchase at the inflated
price in reliance on the information's ostensible integrity. The challenge, often
daunting, is to determine if and to what extent particular investors have been
harmed by artificial prices that are the result of deliberate misinformation of one
sort or another (including manipulative trading practices designed to inflate the
price).9
9
Similar issues arise not only in the context of criminal sentencing, but
also, and perhaps more prominently, in the area of civil securities litigation.
26
We might understand the amount of investors' potential losses as a
function of the "inflationary component" of the price paid, that is, the portion of
the price paid that would not have been paid but for the fraud. But "as a matter
of pure logic, at the moment the transaction takes place, the [investor who paid
the inflated price] has suffered no loss; the inflated purchase payment is offset by
ownership of a share that at that instant possesses equivalent value." Dura
Pharm., Inc. v. Broudo, 544 U.S. 336, 342 (2005) (emphasis in original). By the same
token, an investor able to sell shares before some or all of the "inflationary
component" has fallen out of the share price suffers a loss that is less than the
entire inflationary component because he, she, or it has, through the sale,
recouped some or all of the overpayment.
Thus, at least theoretically, an investor's actual losses are equal to
"the artificial inflation when the shares were purchased minus the artificial
inflation when the shares were sold." Michael Barclay & Frank C. Torchio, A
Although we rely on authorities from each of these contexts to establish certain
general principles, we are mindful of important differences that counsel against
using authorities from these different contexts interchangeably. For example,
although we rely generally on the discussion of investor loss in the Supreme
Court's opinion in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), not
every principle from the context in which that case arose -- pleading standards
for "loss causation," an element of a civil securities litigation claim -- is readily
applicable to this one, or vice versa.
27
Comparison of Trading Models Used for Calculating Aggregate Damages in Securities
Litigation, LAW & CONTEMP. PROBS., Spring/Summer 2001, at 106; see also Bradford
Cornell & R. Gregory Morgan, Using Finance Theory to Measure Damages in Fraud
on the Market Cases, 37 UCLA L. REV. 883, 886 (1990).
To quantify investor losses in this manner, one needs to determine
what the aggregate price of the investor's shares would have been on a given
date but for the fraud; this value can then be subtracted from the actual market
price of the shares on that date. Green v. Occidental Petroleum Corp., 541 F.2d 1335,
1344 (9th Cir. 1976) (Sneed, J., concurring). This disentangles those elements of a
stock price that are a result of legitimate factors from those that are the result of
fraudulent ones. Although performing the task may be a challenge in any
particular case, as a general matter, it is necessary to a determination whether
particular losses were "directly and proximately" caused by fraud, or instead by
the materialization of some non-fraud risk, against which investors are not
protected by the securities laws. See United States v. Zolp, 479 F.3d 715, 719 (9th
Cir. 2007) ("[T]he court must disentangle the underlying value of the stock,
inflation of that value due to the fraud, and either inflation or deflation of that
value due to unrelated causes."); see also United States v. Rutkoske, 506 F.3d 170,
178-79 (2d Cir. 2007).
28
This sort of quantitative analysis, relying as it does on sophisticated
principles of corporate finance and statistics, is hardly the stuff of ordinary
judicial expertise. Courts therefore can and ordinarily do rely on the testimony
of one or more experts for one side to establish a statistical model, and one or
more on the other side to bring to the court's attention the ways in which that
model may be unsound, and, if necessary, propose a viable alternative. See
Rutkoske, 506 F.3d at 180 ("Normally, expert opinion and some consideration of
the market in general and relevant segments in particular will enable a
sentencing judge to approximate the extent of loss caused by a defendant's
fraud.").10
C. Application of Governing Law
We turn, then, to the question of whether the district court's
restitution calculation of $17,492,817.45 comports with the applicable legal
principles. We conclude that it does.
10
The Federal Rules of Evidence do not apply at sentencing proceedings.
Fed. R. Evid. 1101(d)(3). Expert testimony in restitution cases is therefore not
governed by the strictures of Fed. R. Evid 702, nor, it follows, by authorities
interpreting that Rule, for example, Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999).
29
1. The Government's Showing. As we have described, the district
court first relied on Gushlak's allocution and affidavits filed with the
government's fourth restitution submission to establish the nature and timing of
the fraud. These materials suggested a fraud accomplished through
misrepresentations and manipulative trading practices. They also revealed that
the coconspirators continued to use these manipulative practices and others
through the summer of 2000 to keep GBNE's stock price inflated.
But apparently as a result of downward pressure caused by the
bursting of the "dot-com bubble"; the tapering of the manipulative trading
practices; and short sales by sophisticated investors who had realized that
GBNE's price was manipulated, GBNE's inflated price could not be sustained.
What this demonstrated, as an initial matter, is that this was not a
relatively simple situation in which the fraudulent conduct at issue was revealed
all at once, such that one could observe the market's immediate response to a
disclosure in order to quantify victims' losses. Rutkoske, 506 F.3d at 179(describing similar circumstances). It appears instead to be a case where the
inflationary (fraud-induced) component fell out of the price gradually, as the
result of cessation of manipulative conduct, an increasing awareness in the
market that GBNE's price was inflated, and perhaps even broader market forces.
30
See Madge S. Thorsen, Richard A. Kaplan & Scott Hakala, Rediscovering the
Economics of Loss Causation, 6 J. BUS. & SEC. L. 93, 103-06 (2006) (explaining how
these factors might lead to gradual dissipation of the inflationary component).
The balance of the district court's findings were drawn from the
expert report and testimony of DeRosa. His analysis was an attempt to do what
we have described above. He sought to calculate the "fair market price" of GBNE
during the period in which the price had been manipulated, February 29, 2000, to
December 31, 2000, which he labeled the "Manipulation Period." This "fair
market price" -- essentially, what the price would have been "'but for' the price
manipulation," DeRosa Rep. at 5, Joint App'x at 623 -- could then be compared to
GBNE's actual closing price to isolate the so-called "inflationary component" of
the price -- that part of the price that was the result of fraud.
To calculate GBNE's "fair market prices," DeRosa started with a
"clean" price for GBNE, an actual closing price that he could assume with some
confidence was not the product of manipulation. He selected the actual closing
price of GBNE on January 1, 2001, which date he designated as the beginning of
what he called the "Post-Manipulation Period." Derosa Rep. at 5, Joint App'x at
623. He then set out to demonstrate how this "clean" price would have behaved,
31
proceeding from the beginning of the Post-Manipulation Period backward
throughout the preceding Manipulation Period.
DeRosa's attempts to do this rested on the premise that "movements
in a particular stock's price can be expected to be associated with
contemporaneous like movements in the prices of stocks in general and in
particular the prices of stocks in the same industry." DeRosa Rep. at 12, Joint
App'x at 630. This empirical regularity is the natural consequence of common
risks. One such set of risks is what some corporate finance literature terms
"market risk" (or "systematic risk") -- "economywide perils that threaten all
businesses," but also tend to affect the share price of companies in the same
industry similarly. RICHARD A. BREALEY ET AL., PRINCIPLES OF CORPORATE
FINANCE 170 & n.25 (10th ed. 2011); see also RONALD J. GILSON & BERNARD S.
BLACK, (SOME OF) THE ESSENTIALS OF FINANCE AND INVESTMENT 96-97 (1993).
Another is what the district court called "industry-specific idiosyncratic risk,"
Gushlak, 2012 WL 1379627 at *2, 2012 U.S. Dist. LEXIS 56009 at *6, which consists
of risk factors that apply to all companies in a particular industry, and affects
similar companies within that industry in similar manner and to a similar degree.
These latter risks are a form of what the literature calls "specific," "unsystematic,"
or "unique" risk. BREALEY, supra, at 170; GILSON & BLACK, supra, at 96-97.
32
What DeRosa sought to do, then, was identify a company or group
of companies whose rate of return11 moved in like manner and degree to GBNE's
during the Post-Manipulation Period, during which GBNE was not being
manipulated by fraud. For this, DeRosa used a technique known as regression
analysis. Regression analysis, DeRosa explained, is a way of determining "the
impact of . . . explanatory variables" -- here, the monthly rates of return of
potential comparator stocks -- "on the dependent variable" -- the monthly rate of
return of GBNE. DeRosa Rep. at 10, Joint App'x at 628. This approach was used
to find a comparator the rate of return of which had a "meaningful statistical
relationship" with GBNE's, such that an unmanipulated GBNE could be expected
to behave like the comparator, and for the same reasons. Id. The comparator
could then serve as a proxy for GBNE's reaction to the materialization of market
and industry-specific risks during the Manipulation Period.
DeRosa applied this method to rates of return of shares in companies
he deemed similar to GlobalNet, reasoning that these were the most likely to
11
Specifically, DeRosa used monthly rates of return for one dollar invested
on January 1, 2001. DeRosa Rep. at 6, Joint App'x at 624. He used rate of return
instead of stock price because it permitted him to normalize fluctuations in the
various comparators' prices. Hearing Tr., Feb. 14, 2012, at 19-20, Joint App'x at
1773-74; see also id. at 28, Joint App'x at 1782 (explaining DeRosa's reason for
using monthly, instead of daily, rate of return).
33
have a statistically meaningful relationship with GBNE's rate of return. His
analysis led him to the view that an existing stock index, "CUTL," was the best
available comparator. Id. at 14, Joint App'x at 632. CUTL, he explained, is a
"capitalization-weighted index composed of NASDAQ stocks in the
telecommunications industry." Id. at 8, Joint App'x at 626.12 DeRosa testified that
according to his analysis, the relationship between CUTL's and GBNE's rates of
return during the Post-Manipulation Period was "highly significant," Hearing Tr.,
Feb. 14, 2012 ("2/14 Hr'g"), at 26, Joint App'x at 1780, and that CUTL was an
"outstanding explanatory variable," id. at 28, Joint App'x at 1782. He pointed out,
moreover, that CUTL and GBNE were not correlated at all during the
Manipulation Period. DeRosa Rep. at 14, Joint App'x at 632. This, he opined,
was powerful confirmation of the manipulation. 2/14 Hr'g at 26-27, Joint App'x
at 1780-81.
CUTL's relationship to GBNE enabled DeRosa to use CUTL's
movements during the Manipulation Period to calculate what GBNE's price
12
"I found a telecommunications [stock] index that [is] prepared by the
NASDAQ people. It's not the NASDAQ index; it's just prepared by them on
telecommunications. We refer to it as 'CUTL' because that was its sticker [sic]
symbol, and it has about 400 stocks in it." Test. of David DeRosa, Hr'g Tr., Feb.
14, 2012, at 17, Joint App'x at 1768.
34
would have been absent the manipulation on any given date. He did so by
applying CUTL's fluctuations in rates of return backwards in time from January
1, 2001, to GBNE's price on that date. DeRosa Rep. at 14-15, Joint App'x at 632-33.
In other words, he made GBNE's price move back through time the way CUTL's
did. He then plotted these prices on a chart along with GBNE's actual closing
price, id. at 15, Joint App'x at 633. This chart is set forth at the end of this opinion
as the Appendix.
DeRosa then used this data to calculate losses. He drew from "blue
sheet" trading records13 the actual prices paid and the number of shares for all
transactions in GBNE between February 2, 2000, and November 1, 2000,
apparently the only time period for which records could be obtained. Id. at 3,
Joint App'x at 621. He tabulated losses as the amount the investor overpaid,
minus, in the event the investor sold the stock during the Manipulation Period,
13
"'Blue Sheets,' so named because of the color on which they were once
printed, are questionnaire forms on which clearing firms supply to the Securities
and Exchange Commission certain information relating to trading activity,
including the name of a security, the date traded, the price, the size of the
transaction and the parties involved." United States v. Ageloff, 809 F. Supp. 2d 89,
98 n.6 (E.D.N.Y. 2011).
35
the amount the investor was overpaid by a later buyer.14 Id. at 16-17; Joint App'x
at 634-35.
We are persuaded, as was the district court, that this showing
established by a preponderance of the evidence a reasonable estimate of loss
founded on a sound basis for approximation. Calculating loss amounts in this
case, as already noted, was a vexing task, because although the evidence
demonstrated that GBNE's stock price was plainly, vastly inflated, the manner in
which its inflationary component dissipated was halting and gradual. In such
circumstances, it is difficult to identify and quantify discrete dissipating events in
order to determine precisely how the market valued the fraudulent factor or
factors artificially inflating the price.
Confronted with this difficulty, the government was forced to
explain in a somewhat more general manner the price that one would have
expected GBNE to have traded at absent fraud, quantifying the inflationary
component by comparing that fair market price to the actual closing price. It
14
Another way of understanding this calculation is as actual total loss --
actual price paid less actual price recouped when sold (or price on January 1,
2001, if the shares were not sold) -- minus "fair market" loss -- DeRosa's "fair
market price" on the date purchased less his "fair market price" on the date sold.
Thus, investors' losses were total losses minus any of those losses that would
have happened even absent manipulation as a result of non-fraudulent factors.
36
relied, as is customary -- indeed, necessary -- in cases like this, on the testimony
of a well-qualified expert.
DeRosa explained the various aspects of his approach in significant
detail. He testified that the model he created has been used in "thousands of
studies." 2/14 Hr'g at 15, Joint App'x at 1768. He described his statistical
techniques as "standard tool[s]," DeRosa Rep. at 10, Joint App'x at 628, and
explained that his applications "ha[d] been done thousands of times," 2/14 Hr'g at
29, Joint App'x at 1783. And he explained why his model would yield a logically
sound measure of actual loss, avoiding obvious pitfalls such as the "basic failure
at least to approximate the amount of the loss caused by the fraud without even
considering other factors relevant to a decline in . . . share price." Rutkoske, 506
F.3d at 180.
What DeRosa's analysis did first was confirm the existence of
manipulation so overwhelmingly effective that GBNE traded at prices wholly
untethered to the price it would have fetched if unmanipulated. Indeed, this
much was all but self-evident in light of the precipitous drop in GBNE's actual
share prices, reflected in the chart reprinted in the Appendix, from its peak price
of approximately $25 per share to less than $3 per share in a matter of months.
But DeRosa demonstrated it with data.
37
To be sure, GlobalNet's price was not all a product of fraud, even if
mostly so. And this is what the government and DeRosa sought to untangle in
their loss calculation. But in light of these circumstances -- which is to say, in
light of the demonstration that the manipulation was most usefully observed
from a few paces back -- it would have made little sense to comb each day's
trading activity to discover where, if at all, some abnormality hints at
manipulation. We think DeRosa's rather wider window on the scheme's
fraudulent impact provided a sound basis for reaching a reasonable
approximation of losses.
In sum, the district court credited the government expert's well-
supported proffer of a widely accepted methodology, trained towards a logical
measure of loss, and tailored to the particular circumstances of this case. We
therefore conclude that, in the circumstances of this case, the government carried
its burden under the MVRA.
2. Gushlak's Challenges. It therefore fell to Gushlak to undermine
this showing if he could. And indeed he levied a number of challenges against
DeRosa's methodology during the restitution proceedings, many of which he
renews before us.
38
Perhaps his most compelling argument, which he restates in various
ways, is that DeRosa's methodology was flawed because it failed to account for
potential company-specific factors other than fraud that could have affected the
market price during the manipulation period. As we have said, stock prices are
subject to market risk and industry-specific risk; but they are also subject to
company-specific risks, of which fraudulent conduct is but one. See BREALEY,
supra, at 170; GILSON & BLACK, supra, 96-97. DeRosa's analysis, relying as it did
on CUTL, controlled for market and industry-specific risk, but could not have
hoped to account for GBNE-specific risk -- i.e., risk that inhered in the company's
business and market forces' effect on the value of its products. Gushlak
maintains that this is fatal to a valid loss calculation.
Gushlak's insistence on a more fine-grained approach is not, as an
abstract matter, altogether unreasonable. It has apparently become standard
operating procedure in federal securities litigation to conduct a so-called "event
study" when attempting to establish or quantify the effects of fraud on a stock's
market price. One essential component of such a study is what DeRosa did
indeed perform -- a regression analysis designed to separate out price
movements resulting from market- or industry-based factors. See Michael J.
39
Kaufman & John M. Wunderlich, Regressing: The Troubling Dispositive Role of
Event Studies in Securities Fraud Litigation, 15 STAN. J.L. BUS. & FIN. 183, 192 (2009).
But event studies typically go further, identifying relevant dates on
which disclosure of fraud is thought to have reached the market, and then
quantifying the extent to which the market reacted in a way that can only have
been a response to the relevant event. Kaufman & Wunderlich, supra, at 191-94.
We do not think that DeRosa's failure to conduct such a study is a
fatal flaw in his analysis. First, as explained above, the extent of the
manipulation and the gradual manner in which the effects of that manipulation
dissipated justified DeRosa's more generalized approach -- that is, justified the
decision not to perform a fine-grained event study. This is just not a case of a
series of blips, slight departures from what the market would predict, each of
which must be finely measured, day-by-day. The decision not to conduct a
detailed event study trained specifically on fraudulent factors -- or perhaps on
non-fraudulent company-based factors -- therefore did not render DeRosa's
approach unsound or his ultimate estimate unreasonable.
Moreover, the district court had a factual basis for concluding that
there were no company-specific disclosures concerning non-fraudulent
information that would have affected GlobalNet's stock price. In the
40
government's fourth restitution request, it stated explicitly that it was "unaware
of any additional events, such as public disclosures, which would have affected
the stock price [during the Manipulation Period]." Gov't's Fourth Restitution
Request, Oct. 24, 2011, at 6 n.2, Joint App'x at 609. And when Gushlak's counsel
cross-examined DeRosa about two possible such disclosures -- a $10 million loan
GlobalNet had secured, and bare GlobalNet revenue data -- DeRosa plausibly
quashed the notion that they would have affected the market price in any
relevant way. See 2/14 Hr'g at 44-45, 112-13, Joint App'x at 1798-99, 1866-67.
Confronted with the government's and DeRosa's position in this
regard, and tellingly, without specific, probative evidence to the contrary
supplied by Gushlak, the district court reached the factual determination that
none of the losses sustained by victims were caused by the market's reaction to
company-specific disclosure of non-fraudulent information. Gushlak, 2012 WL
1379627 at *9, 2012 U.S. Dist. LEXIS 56009 at *30. In other words, it found that the
only relevant company-specific factor was fraud. We do not think this finding,
grounded in the record before the district court, is clearly erroneous.15 And we
15
We likewise reject Gushlak's suggestion that the district court
impermissibly shifted the burden of proof when it reasoned that "the onus must
be on Gushlak to identify events other than the fraud that contributed strongly to
changes in GlobalNet's stock price," Gushlak, 2012 WL 1379627 at *9, 2012 U.S.
41agree with the district court that it obviated the need for a more nuanced look at
each particular fraudulent act.
None of Gushlak's remaining contentions merits more than brief
mention.
He argues that the district court erred in failing to credit Dr. Juran
and Dr. Lowry, his proffered experts, rather than Dr. DeRosa. Both offered
criticisms of DeRosa's approach, and then described alternatives. But largely for
the reasons outlined above, we can find no error in the decision of the district
court, acting as factfinder, to credit DeRosa's explanations of his methodology.
And strikingly, neither Juran nor Lowry actually conducted a loss analysis in this
case. See 2/14 Hr'g at 145, Joint App'x at 1899; Hearing Tr., April 13, 2012, at 57-
58, Joint App'x at 2015-16. It is possible that there was some reticence on
Gushlak's part to supply the court with such an analysis and a resulting number,
fearing that it would be taken as something of an admission, a floor for losses to
Dist. LEXIS 56009 at *30 (emphasis in original). As explained, the government
carried its burden by articulating a sound basis for approximation, under the
circumstances of this case, and by demonstrating, as well as one might expect it
to have been able to, the absence of non-fraud, company-specific disclosures that
would have affected its analysis. We agree with the district court that in such
circumstances it fell to Gushlak to refute this showing.
42
be used as the basis for further inquiry. But the notion that, had they done so,
their models would have been superior to DeRosa's is entirely speculative.
Gushlak also renews attacks on the precision of some of DeRosa's
measurements. For example, he argues that the statistical relationship between
CUTL and GBNE was not strong enough, and he is critical of DeRosa's use of the
"blue sheet" trading records of individual transactions, which he argues may in
some instances be unreliable. We see no ground, however, for branding as
erroneous the district court's careful decision to credit the soundness of DeRosa's
regression and the reliability of the trading records insofar as necessary to
approve the inevitably approximate estimate of the restitution amount. Any
identified potential imprecisions in what is by its nature an imprecise process
would not render the restitution amount estimate unreasonable.
***
We return to where we began, the inexpertness of most judges in
most technical matters, including the forces afoot in the securities markets and
their impact on the prices for any particular security at any particular time. We
must therefore rely on the testimony of professionals with appropriate expertise.
The district court took great pains in addressing the restitution issues over an
extended period of time, requiring repeated efforts by the government to obtain a
43
proper valuation for losses under the particular circumstances, and in light of the
peculiar challenges, presented by the case before it. It relied on a qualified expert
as a guide. We can identify no clear error of fact or mistake of law that the court
committed in reaching, with such care, its result.
CONCLUSION
For the foregoing reasons, the district court's restitution order is
affirmed.
44
Appendix
45