Order on Restitution — United States v. Mark A. Schena (N.D. Cal., Dkt. 266, November 17, 2023)

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An Order on Restitution in United States of America v. Mark A. Schena, Case No. 5:20-cr-00425 EJD, Document 266, filed 11/17/23, in the U.S. District Court for the Northern District of California, San Jose Division. The order states that on October 18, 2023, the court sentenced Schena to 96 months in custody, three years' supervised release, a $900 special assessment, and ordered $24,626,136 in restitution (ECF No. 252). It states that the presentence report found actual losses to Arrayit shareholders of $21,898,896 and to healthcare programs of $2,727,240. The court finds that the preponderance of the evidence supported a restitution order of $24,626,136, consistent with the report's recommendation. The signature block names Edward J. Davila.

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                                          Case 5:20-cr-00425-EJD Document 266 Filed 11/17/23 Page 1 of 2




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                                   4                                  UNITED STATES DISTRICT COURT

                                   5                                 NORTHERN DISTRICT OF CALIFORNIA

                                   6                                         SAN JOSE DIVISION

                                   7    UNITED STATES OF AMERICA,                          Case No. 5:20-cr-00425 EJD
                                   8                    Plaintiff,                         ORDER ON RESTITUTION
                                   9             v.
                                  10    MARK A. SCHENA,
                                  11                    Defendant.
                                  12



 United States District Court
                                  13           On October 18, 2023, the Court sentenced Defendant Mark A. Schena to 96 months in
                                  14   custody, three years’ supervised release, a $900 special assessment, and ordered $24,626,136 in
                                  15   restitution. ECF No. 252.



Northern District of California
                                  16           In ordering restitution, the Court accepted the Probation Officer’s recommendations in the
                                  17   Presentence Investigation Report (“PSR”) as well-founded. 10/18/23 Hr’g Tr. 89:17–24. The
                                  18   PSR had found that healthcare programs sustained actual losses of $2,727,240, and that Arrayit
                                  19   shareholders suffered losses of $21,898,896. PSR ¶ 50. On restitution, the government need only
                                  20   prove the victims’ actual loss amount by a preponderance of the evidence to allow the Court to
                                  21   estimate the losses with “some reasonable certainty.” United States v. Holmes, 2023 WL
                                  22   3489320, at *2 (N.D. Cal. May 16, 2023) (quoting United States v. Kennedy, 643 F.3d 1251, 1261
                                  23   (9th Cir. 2011)).
                                  24           In ordering restitution, the Court found the healthcare program’s $2,727,240 loss amount
                                  25   to be supported by the preponderance of the evidence, as even Mr. Schena acknowledged that the
                                  26   total amount that Arrayit allegedly obtained from private and public insurers, per the government’s
                                  27   trial evidence, “was approximately $2.7M.” Def. Sent’g Mem. 19. With respect to the
                                  28   $21,898,896 loss amount sustained by Arrayit investors, the Court found that the spreadsheet
                                       Case No.: 5:20-cr-00425 EJD                     1
                                       ORDER ON RESTITUTION
                                          Case 5:20-cr-00425-EJD Document 266 Filed 11/17/23 Page 2 of 2




                                   1   appended to the Government’s Sentencing Memorandum as Exhibit A contained sufficient detail

                                   2   to estimate the investment amounts made by Arrayit investors. Gov’t Sent’g Mem. 35, Ex. A, Ex.

                                   3   4. The specific amounts enumerated in the Government’s spreadsheet established, by a

                                   4   preponderance of the evidence, both the specific investor victims and the full amounts of their

                                   5   losses with “some reasonable certainty.” Kennedy, 643 F.3d at 1261. Accordingly, the Court

                                   6   found that the preponderance of the evidence supported a restitution order in the amount of

                                   7   $24,626,136, consistent with the PSR’s recommendation.

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                                   9   Dated: November 17, 2023
                                                                                            EDWARD J. DAVILA
                                  10                                                        United States District Judge
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 United States District Court
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Northern District of California
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                                       Case No.: 5:20-cr-00425 EJD                     2
                                       ORDER ON RESTITUTION


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