Letter to Judge Matsumoto Re: United States v. Kevin Jay Lipsitz, Criminal Docket No. 20-394 (KAM) (Dkt. 43, E.D.N.Y.)
Summary
In a letter dated May 3, 2022 (Document 43, Case 1:20-cr-00394-KAM, E.D.N.Y.), the government responds to Judge Kiyo A. Matsumoto's order of the same day on the restitution to be ordered at sentencing for Kevin Jay Lipsitz, and asks for restitution of $100.00. The letter says restitution is mandatory and that the victims include all of the customers defrauded into purchasing PPE, but that full restitution is not required where determining losses would complicate or prolong sentencing. It reports that the U.S. Probation Department sent affidavits of loss in January 2022 to the dozens of identifiable victims of the mail fraud offense and that only one victim returned one, claiming a loss of $100.00. Assistant U.S. Attorney Andrew Wang asks that the $100.00 be paid to that victim.
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Case 1:20-cr-00394-KAM Document 43 Filed 05/03/22 Page 1 of 2 PageID #: 256
U.S. Department of Justice
United States Attorney
Eastern District of New York
EDP:ADW 271 Cadman Plaza East
F. # 2020R00345 Brooklyn, New York 11201
May 3, 2022
By ECF
The Honorable Kiyo A. Matsumoto
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Re: United States v. Kevin Jay Lipsitz
Criminal Docket No. 20-394 (KAM)
Dear Judge Matsumoto:
Pursuant to the Court’s order dated May 3, 2022, the government respectfully
submits this letter in reference to the amount of restitution to be ordered at sentencing in the above-
referenced case. For the reasons stated below, the government respectfully requests that the Court
impose an order of restitution in the amount of $100.00.
Restitution in this case is mandatory. See 18 U.S.C. §§ 3663A(a)(1) and
(c)(1)(A)(ii). In a case involving identifiable victims, the Court must enter a restitution order for
the full amount of each victim’s loss, if authorized under 18 U.S.C. § 3663A. See U.S.S.G. §
5E1.1(a)(1). Where the count of conviction “involves as an element a scheme,” as here, victims
are defined to include all persons directly and proximately harmed as a result of the commission
of the offense in the course of the scheme. 18 U.S.C. § 3663A(a)(2). Thus, the victims in this
case for purposes of restitution include all of the customers that were defrauded into purchasing
PPE, and not just the victim of the conduct underlying the count of conviction. However, in certain
types of fraud cases, such as this one, restitution in the full amount of each victim’s losses is not
required if “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.” 18 U.S.C. §
3663A(c)(3)(B); see also U.S.S.G. § 5E1.1(b)(2).
In January 2022, the U.S. Probation Department sent affidavits of loss to the dozens
of identifiable victims of the defendant’s mail fraud offense, many of whom are located outside of
New York. See PSR ¶ 38. To date, only one victim has returned an affidavit, claiming a loss of
Case 1:20-cr-00394-KAM Document 43 Filed 05/03/22 Page 2 of 2 PageID #: 257
$100.00. Because the Probation Department has already made a reasonable effort to determine
the losses suffered by identifiable victims, and because further efforts to determine such losses
would “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,” 18 U.S.C. § 3663A(c)(3)(B), the
government respectfully submits that the Court should, on these specific facts, rely only on the
single returned affidavit of loss in ordering restitution. Accordingly, the government respectfully
requests that the Court enter an order of restitution in the amount of $100.00, to be paid to the
victim who returned the affidavit of loss.
Respectfully submitted,
BREON PEACE
United States Attorney
By: /s/ Andrew Wang
Andrew Wang
Assistant U.S. Attorney
718-254-6311
cc: Clerk of the Court (KAM) (by ECF)
Joseph Caldarera, Esq. (by e-mail)
Jameka Bing, United States Probation Officer (by e-mail)
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