United States District Court, S.D. Indiana, Indianapolis Division
ORDER DENYING DEFENDANT ERIN FINAN'S MOTION FOR
WALTON PRATT, JUDGE.
the Court is Defendant Erin J. Finan's (“Mr.
Finan”) pro se Motion for Corrected Judgment
(Dkt. 118), requesting a modification of the conditions of
supervised release and to correct the judgment entered
against him on May 17, 2018. Specifically, Mr. Finan
submitted a letter asking the Court to modify the judgment of
conviction in his case by placing a cap on the schedule of
payments for restitution and giving him credit towards
restitution for property that was forfeited. He also asks the
Court to modify two conditions of supervised release. The
Government has filed a response to Mr. Finan's requests.
(Dkt. 119). For the reasons stated below, the Motion is
Finan was convicted of Wire Fraud, in violation of 18 U.S.C.
§ 1343, and Money Laundering, in violation of 18 U.S.C.
§ 1956(a)(1)(A). (Dkt. 105.) His convictions stemmed
from a multi-year scheme to defraud online retailer Amazon
through which he and his co-defendant, his wife, stole
approximately 2, 100 consumer electronics items worth over
$1, 200, 000.00. After entering a plea agreement with the
Government, Mr. Finan continued committing fraud while on
pretrial release. (Dkt. 75.) Following a hearing on
allegations that he had violated conditions of his release,
Mr. Finan was remanded to the custody of the United States
Marshal, pending the sentencing hearing in this case. (Dkt.
17, 2018, Mr. Finan was sentenced to 71 months of
imprisonment, the Court imposed restitution and a schedule of
payments pertaining to restitution in the amount of $1, 218,
504.00 (jointly and severally with his co-defendant Leah
Finan), ordered forfeiture of certain property, and imposed a
three-year term of supervised release following imprisonment,
which included various conditions.
Court ordered payment of restitution “to begin
immediately” and that “any unpaid restitution
balance during the term of supervision shall be paid at a
rate of not less than 10% of the defendant's gross
monthly income.” (Id. at 6 ¶¶ B and
G.) This condition was imposed to allow the probation officer
to monitor Mr. Finan's finances, to help him avoid
becoming financially overburdened so he is not tempted to
participate in additional fraudulent activities and
“based on the defendant's history of earning income
through fraudulent sources.” (Dkt. 86, at ¶¶
Finan asks the Court to amend paragraph G of the
“Schedule of Payments” on the Judgment and
instead impose a “ceiling” or “maximum
amount of the Defendant's gross monthly income”
that can be ordered paid toward restitution. His rationale
for modifying his schedule of payments is premised on
possible future employment (as a real estate investor and
property wholesaler) following his release from prison. At
present, the request is speculative and is
denied as premature. Mr. Finan's current
release date is December 19, 2022. Once Mr. Finan has been
released from imprisonment and secured employment, he may
file any requests for modification of these terms based on
his actual employment and financial circumstances.
Court ordered that Mr. Finan forfeit property to the United
States, namely a 2007 Yukon Denali with VIN
1GKFK16337J208197, as well as $10, 528.00 that was seized.
Mr. Finan asks that the Court credit the value of these
forfeited assets to his restitution balance. The Government
argues persuasively that the Mandatory Victim Restitution Act
requires the Court to order restitution “to each victim
in the full amount of each victim's losses.”
See 18 U.S.C. § 3664(f)(1). The statute does
not allow the amount of restitution to be offset by
forfeiture. Courts of Appeals that have analyzed the issue
have concluded as such. E.g., United States v.
Sanjar, 876 F.3d 725, 750-51 (5th Cir. 2017); United
States v. Bright, 353 F.3d 1114, 1119-25 (9th Cir.
2004); United States v. Alalade, 204 F.3d 536,
540-41 (4th Cir. 2000); see also United States v.
Emerson, 128 F.3d 557, 566-68 (7th Cir. 1997) (holding,
in case that pre-dated the Mandatory Victim Restitution Act,
that district court did not abuse discretion by not crediting
restitution with forfeited amount). The Government correctly
argues that restitution and forfeiture are separate and
distinct remedies, authorized by separate statutes and
serving distinct purposes: restitution compensates the victim
of the offense, while forfeiture punishes the defendant for
his ill-gotten gains by transferring those gains to the
government. Emerson, 128 F.3d at 567. For these
reason, the requests to reduce the restitution amount by the
value of the forfeited property is denied.
Mr. Finan asks the Court to remove supervised release
conditions 13 and 14, which prohibit him from incurring new
credit charges without approval from the probation officer
(Condition #13) and entering employment without approval from
the probation officer (Condition #14). (Dkt. 105 at 4.) This
request for modification is also premature. At the time of
sentencing, the Court found the nature and circumstances of
the offense and the history and characteristics of Mr. Finan
required some constraint on his ability to incur new debts or
engage in new employment without the probation officer's
approval. The Court's justifications for these conditions
is to allow the probation officer to monitor Mr. Finan's
finances to help him avoid becoming financially overburdened
so that he is not tempted to participate in additional frauds
and “based on the defendant's history of earning
income through fraudulent sources”. (Dkt. 86, at
district courts do have authority to revise conditions of
supervised release “at any time, ” see
18 U.S.C. § 3583(e)(2), it is sound discretion to
evaluate such requests closer to the date of a
defendant's release. E.g., United States v.
Williams, 840 F.3d 865, 865 (7th Cir. 2016) (per
curiam); see also United States v. Colson, 675 Fed.
App'x 624, 629 (7th Cir. 2017). Mr. Finan states that he
will need access to lines of credit once he begins to engage
in real estate investment, upon release from imprisonment.
Again, this request is premature, and Mr. Finan can renew
this request once he is released from prison and is engaged
in real estate or other legitimate business. Under those
circumstances, Mr. Finan might have an actual basis for the
modification and the Court will be able to determine whether
these conditions should be modified.
reasons explained above, Mr. Finan's pro se
Motion for Corrected Judgment (Dkt. 118) is