Stopping just short of directing the district court to double the restitution owed by former state Sen. Vincent Fumo to a nonprofit organization from which he stole hundreds of thousands of dollars, the U.S. Court of Appeals for the Third Circuit gave the district court strict instructions for resentencing.
A three-judge panel on the appeals court held that the district judge had abused his discretion under the Mandatory Victims Restitution Act when he split the amount owed to the Citizens Alliance for Better Neighborhoods between Fumo and his aide, Ruth Arnao.
Both Fumo and Arnao were convicted on fraud charges. They were each ordered to pay $792,802.42 in restitution to the organization, which was started by Fumo.
"The district court's sentence will be vacated insofar as it ordered Fumo to pay only half of the restitution owed to Citizens Alliance. We will then remand this matter to the district court with specific instructions to determine Fumo's share of the Citizens Alliance restitution on the basis of the applicable statutory factors as well as the actual evidence in this case," said Senior Judge Robert Cowen on behalf of the panel, which included Senior Judge Morton I. Greenberg and Judge Joseph Greenaway Jr.
"However, we add that, given the evidence, the district court would -- yet again -- abuse its discretion if it failed either: (1) to order Fumo to pay all of the Citizens Alliance restitution; or (2) at the very least, to apportion Fumo's share of the restitution in such a way as to reflect the clearly disproportionate culpability and economic circumstances of the two co-defendants."
Focusing on the intent of the restitution act, which is to make victims whole, the court examined two factors: the defendants' culpability and their ability to pay.
Regarding the first factor, U.S. District Judge Ronald Buckwalter of the Eastern District of Pennsylvania had decided that Fumo and Arnao were equally responsible for the money stolen from Citizens Alliance. The appeals court disagreed, holding that Judge Buckwalter had abused his discretion.
On the second factor, too, the appeals court found that the district court abused its discretion, since Fumo has much more money and can pay more than Arnao.
Citing Fumo's 2009 pre-sentence investigation report, Judge Cowen said that he has a net worth of $11.3 million, versus Arnao's net worth of $1.5 million.
"Although certainly not destitute, Arnao was obviously much less well off than her multimillionaire co-defendant," Judge Cowen said. "He clearly possesses the means to pay the remaining share of the Citizens Alliance apportioned to Arnao by the district court -- and to do so immediately."
Robert Zauzmer of the U.S. Attorney's Office argued on behalf of the government, and Patty Hartman, spokeswoman for the office, said in a prepared statement:
"We are pleased with the court's ruling, and look forward to resolving the matter in the district court.Our goal remains to obtain full restitution for every victim, including Citizens Alliance."legalnews