Letter — United States v. Kevin Jay Lipsitz, E.D.N.Y. (Document 43, May 3, 2022)

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A letter dated May 3, 2022 from the United States Attorney's Office for the Eastern District of New York to the Honorable Kiyo A. Matsumoto, Re: United States v. Kevin Jay Lipsitz, Criminal Docket No. 20-394 (KAM), filed as Document 43 in Case 1:20-cr-00394-KAM. The government states that restitution is mandatory and respectfully requests that the Court impose an order of restitution in the amount of $100.00. It states that in January 2022 the U.S. Probation Department sent affidavits of loss to identifiable victims and that only one victim had returned an affidavit, claiming a loss of $100.00. The letter is signed /s/ Andrew Wang, Assistant U.S. Attorney.

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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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