United States District Court, D. Minnesota
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
Lola Velazquez-Aguilu, Assistant United States Attorney, Counsel for Plaintiff. Jordan S. Kushner, Law Office of Jordan S. Kushner, Counsel for Defendant.
This matter is before the Court on Defendant's Motion to Re-Open and for Reconsideration of Restitution. [Docket No. 1018] Because this Court lacks jurisdiction to amend the judgment, it must deny the motion.
On July 26, 2011, Defendant Adetokunbo Olubunmi Adejumo pled guilty to two counts in the Superseding Indictment: Count 8, Bank Fraud, in violation of 18 U.S.C. §§ 2 and 1344, and Count 47, Aggravated Identity Theft, in violation of 18 U.S.C. §§ 1028A and 2. On August 14, 2012, the Court held a sentencing hearing and sentenced Defendant to 124 months in prison and 5 years supervised release. The Court ordered mandatory restitution but left the amount of restitution open because the amount owed to specified victims had not yet been ascertained.
On September 4, 2012, Defendant's retained counsel, Kenneth Udoibok, filed a motion to withdraw as counsel and requested that the Court appoint counsel from the Federal Defender's conflict panel to handle Defendant's appeal. [Docket No. 780] However, on September 10, 2012, Udoibok filed a Notice of Withdrawal of Motion, withdrawing the motion to withdraw as counsel, because he thought that jurisdiction had transferred to the Eighth Circuit Court of Appeals and appellate defense counsel would be substituted. [Docket No. 785] (See also Kushner Decl. ¶ 3 n.1) Thus, Udoibok remained counsel of record on the docket in the District Court case.
On August 20, 2012, Defendant filed a Pro Se Notice of Appeal to the Eighth Circuit Court of Appeals. [Docket No. 762] On September 18, 2012, the Eighth Circuit appointed Jordan Kushner to be Defendant's attorney on that appeal. (Kushner Decl. ¶ 1.)
On December 7, 2012, the Government moved for a final order of forfeiture. [Docket No. 829] On December 14, this Court granted the final order of forfeiture. [Docket No. 841]
On August 15, 2013, the Government filed a Motion to Amend Judgment seeking to order restitution to four different victims totaling $1, 106, 931. [Docket No. 993] The motion was electronically filed on CM/ECF. At that time, Udoibok was still listed as Defendant's counsel of record. According to Defendant, Udoibok claims that he deleted without reading all CM/ECF notices that he received in Defendant's case because he no longer considered himself to be Defendant's attorney. (Kushner Decl. ¶ 3 n.1.)
Defendant did not respond to the motion. On August 29, 2013, the Court granted the Government's motion and entered an Amended Judgment that included restitution in the amount of $1, 106, 931 to victims Anchor Bank, Bank of America, Chase Bank USA NA, and Guaranty Bank. [Docket No. 1002] On October 30, 2013, Kushner entered an appearance as attorney for Adejumo in the District Court case. [Docket No. 1016] Also, on October 30, Adejumo, through Kushner, filed Defendant's Motion to Re-open and for Reconsideration of Restitution. [Docket No. 1018] The Government opposed Defendant's motion on the grounds that this Court lacks jurisdiction to grant the motion. [Docket No. 1021]
A. Statutory Procedure for Restitution
At sentencing, the Court ordered mandatory restitution, but left the amount open because the amount owed to specified victims had not yet been determined. "If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." 18 U.S.C. § 3664(d)(5). A district court's failure to impose an order of restitution within 90 days does not prevent the district court from imposing the order of restitution after ...