Notice of Change in Economic Circumstances and Motion for Reconsideration of Restitution Order (Berman)

Summary

Keith Berman's Notice of Change in Economic Circumstances and Motion for Reconsideration of Restitution Order, filed May 30, 2025 as Document 218 in No. 20-CR-278-TNM. It says the May 16, 2025 Order requires Berman to pay $100 a month in restitution, while in prison Berman has never earned more than $80 in a month. It states that Berman receives $100.00 per month from a non-profit, spent on toiletries and to communicate with the outside world, and that Berman has taught other inmates and worked on a suicide watch team. Citing 18 U.S.C. § 3664(k), the motion asks that the monthly restitution payment be reduced to $25.

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“Notice of Change in Economic Circumstances and Motion for Reconsideration of Restitution Order (Berman).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-d-d-c-no-1-20-cr-00278-dkt-218-d-d-c-809ed80d4b/, SHA-256 24ccaa5dc3714172c6f1f73f0b65cbd4414d7029206c8c55b0937ff00c3f09c1.

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Case 1:20-cr-00278-TNM Document 218 Filed 05/30/25 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA )
)
) CRIMINAL NO. 20-CR-278-TNM
v. )
)
KEITH BERMAN, )
)
Defendant. )

KEITH BERMAN’S NOTICE OF CHANGE IN ECONOMIC CIRCUMSTANCES AND
MOTION FOR RECONSIDERATION OF RESTITUTION ORDER
Case 1:20-cr-00278-TNM Document 218 Filed 05/30/25 Page 2 of 7

INTRODUCTION

On May 16, 2025, this Court issued an Order requiring prisoner Keith Berman to pay a

monthly sum of $100 in restitution. ECF No. 217 at 16. The Court ruled that Mr. Berman had to

start paying immediately, while in prison, noting that he could use “prison funds and earnings to

pay the restitution award.” Id.; see also 18 U.S.C. § 3664(f)(2) (providing that sentencing courts

shall set the “schedule according to which[] the restitution is to be paid”). But while in prison, Mr.

Berman has never earned more than $80 in a month, let alone the $100 he must pay under the

Court’s Order. Ex. A (Federal Bureau of Prisons, TRULINCS Account Transactions). 1 Mr.

Berman’s meagre earnings are not the result of an unwillingness to work. On the contrary, since

being imprisoned, he has taught other inmates and worked on a team that monitors prisoners at

risk of suicide. Simply put, Mr. Berman, through no fault of his own, lacks the earnings to pay the

sums by himself. Mr. Berman does receive $100.00 per month from a non-profit, but those funds

are not guaranteed, and in any event, he spends them on toiletries and to communicate with the

outside world. Id. Accordingly, pursuant to 18 U.S.C. § 3664(k), Mr. Berman respectfully requests

that the monthly restitution payment be reduced to $25 per month.

BACKGROUND

On December 7, 2023, Keith Berman pleaded guilty to securities-related offenses. ECF

No. 170. A few months later, this Court sentenced Mr. Berman to 84 months in prison. ECF No.

197. In June and July, the parties briefed the amount of restitution each thought was due under the

Mandatory Victims Restitution Act. ECF No. 209. At the time, however, Mr. Berman was

confined in the District of Columbia jail. Only after the briefs were filed, did the Bureau of Prisons

1
Exhibit A is a record generated by the Federal Bureau of Prisons. Mr. Berman respectfully
requests that this court take judicial notice of its contents.
1
Case 1:20-cr-00278-TNM Document 218 Filed 05/30/25 Page 3 of 7

transfer Mr. Berman to his current place of confinement at the Federal Medical Center in Fort

Worth.

Since being incarcerated, Mr. Berman has worked for the prison and his fellow inmates.

Mr. Berman teaches three hour-long classes, each one requiring three hours of preparation. He

also hosts office hours for four hours every Saturday. In total then, Mr. Berman spends about 16

hours every week using his education to rehabilitate fellow inmates. Next semester, Mr. Berman

will add an additional class to his schedule.

Separately, Mr. Berman works on the suicide watch team. During each 4-hour shift, Mr.

Berman monitors prisoners at risk of harming themselves. On average, Mr. Berman works 4 shifts

each week. For this work, he is compensated at a rate of 80 cents per hour.

On May 16, 2025, this Court issued an Order resolving the restitution issue. ECF No. 217.

The Order provides that Mr. Berman “shall pay restitution in the amount of $613,286.08.” Id.

at 17. Although this Court recognized that Mr. Berman’s “financial situation is dire,” id. at 15, it

directed him to “use prison funds and earnings to pay [$100 per month] until his release,” id. at

16.

ARGUMENT

This Court can amend the Restitution Order. After all, the Mandatory Victims Restitution

Act provides that sentencing courts can “adjust the payment schedule, . . . as the interests of justice

require” when parties alert those courts about “material change[s] in the defendant’s economic

circumstances.” 18 U.S.C. § 3664(k); see also id. § 3664(o) (listing ways that restitution orders

can be modified).

Second, this Court should amend the order. Mr. Berman’s earning potential amounts to a

“material change” in his “economic circumstances.” At the time parties briefed the issue of

restitution, Mr. Berman had not yet been transferred to his current place of confinement, FMC Fort
2
Case 1:20-cr-00278-TNM Document 218 Filed 05/30/25 Page 4 of 7

Worth. Therefore, neither counsel nor Mr. Berman could accurately estimate his prison earnings.

Nor could Mr. Berman foretell the monthly payment this Court would set in the restitution

schedule. Accordingly, both his earning potential and the insufficiency of those earnings were not

known at the time the parties briefed the restitution issue.

Moreover, the interests of justice counsel a reduction in his monthly payments. As detailed

in Bureau of Prison records, Mr. Berman lacks the means with which to comply with the Court’s

order. Ex. A (Federal Bureau of Prisons, TRULINCS Account Transactions). And as this Court

has itself noted, “Mr. Berman’s financial situation is dire,” and he “appears to have negative net

worth.” ECF No. 215 at 15 (quoting the Presentence Investigation Report, ECF No. 191, at 21).

What’s more, Mr. Berman faces real consequences if he, through no fault of his own, fails to come

up with the Order’s monthly sum. As another judge in this Court observed, “the penalties for

defaulting on a criminal fine or restitution payment can be severe.” United States v. Vollongco.,

2016 U.S. Dist. LEXIS 89285, at *17 (D.D.C. July 11, 2016). After all, the Act provides that

defendants “in default” may be “h[e]ld in contempt of court,” have their “probation” revoked, or

their “term of supervised release” modified. 18 U.S.C. § 3613A(a)(1). 2

The caselaw supports Mr. Berman’s request. Several appellate courts, for instance, have

reversed district court orders that require payments that a defendant cannot afford. See United

States v. McGlothlin, 249 F.3d 783, 784 (8th Cir. 2001); United States v. Myers, 198 F.3d 160, 168-

69 (5th Cir. 1999); United States v. Grant, 715 F.3d 552, 560 (4th Cir. 2013) (vacating restitution

order “when a court imposes payment obligations that are untethered from the defendant’s ability

2
To be sure, the Act provides that this Court must order restitution of all the victim’s losses,
“without consideration of the economic circumstances of the defendant.” 18 U.S.C.
§ 3664(f)(1)(A). But that command only means the court must tally the total amount of restitution
by focusing on the victim’s losses, not the defendant’s ability to pay. By contrast, a court is allowed
to consider such circumstances when determining the monthly payment amounts.
3
Case 1:20-cr-00278-TNM Document 218 Filed 05/30/25 Page 5 of 7

to meet those obligations”). Other judges in this Court have followed suit. In United States v.

Armstrong, for example, a court had ordered a prisoner to pay $25 every three months in restitution.

2018 U.S. Dist. LEXIS 193018, at *1 (D.D.C. Nov. 13, 2018). But as the prisoner’s family began

to contribute to her commissary account, her payments ballooned, first to $135 per month and

ultimately to $271.00 per month. Id. at *1-2. Making matters worse, the prison offered no job

that paid anywhere near the amount the prisoner needed to satisfy the restitution order. Id. at *8.

The court reduced the restitution amount, noting that the onerous payment prevented the prisoner

from purchasing “hygiene, food and other necessary items from the commissary.” Id. at *19. Just

as in Armstrong, Mr. Berman does not make enough on his own to comply with this Court’s Order.

And just as in Armstrong, Mr. Berman receives some external support, which he spends on

toiletries and food. Mr. Berman requests that this Court modify its Order so that Mr. Berman pay

$25 per month.

4
Case 1:20-cr-00278-TNM Document 218 Filed 05/30/25 Page 6 of 7

DATED: May 30, 2025 Respectfully submitted,

/s/Kevin B. Collins
Kevin B. Collins (D.C. Bar No. 445305)
Nicholas J. Xenakis (D.C. Bar No. 90001123)
Jonah T. Panikar (D.C. Bar No. 90006218)
José F. Girón (D.C. Bar No. 90020611)
COVINGTON & BURLING LLP
One CityCenter
850 Tenth Street, NW
Washington, D.C. 20001
(202) 662-5598

Michelle Peterson (D.C. Bar No. 438930)
Assistant Federal Public Defender
For the District of Columbia
625 Indiana Avenue, N.W.
Washington, DC 20004

Counsel for Keith Berman

5
Case 1:20-cr-00278-TNM Document 218 Filed 05/30/25 Page 7 of 7

CERTIFICATE OF SERVICE

I hereby certify that I caused copies of the foregoing to be transmitted to counsel registered

to receive electronic service.

/s/ Kevin B. Collins
Kevin B. Collins (D.C. Bar No. 445305)

Counsel for Keith Berman

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