Restitution – Where a stolen or destroyed item is unique or lacks a ready market, courts may calculate restitution based on the item’s “replacement cost” as long as the replacement cost is reliable and not a productive of speculation.
Sentencing Guidelines/Loss Amount – The defendant’s sentence was substantively reasonable when the judge varied upwards from the Guidelines range based on an opinion that the destroyed gold bar was a “priceless work of art.”
In a quirky opinion full of gold-related puns, the Court reversed the district court’s restitution order centering around a rare gold ingot that the defendants stole from the victim. The victim had found the rare golden artifact while exploring sunken 17th century ships off the coast of Florida and featured the artifact, Gold Bar 27, in his museum.
The defendants were charged and convicted of conspiracy against the U.S. and theft of major artwork under 18 U.S.C. § 668 after traveling to the victim’s museum and stealing Gold Bar 27, after which the defendant used the gold bar as a “personal treasure stash, sawing off pieces as he needed money, until just a small piece remained.”
At issue was how much Gold Bar 27 was worth for the purposes of calculating the defendant’s restitution obligation under the MVRA. The PSR valued the stolen gold bar at $556,000, which was the value the victim’s museum placed on it. However, the museum’s insurance company had paid a $100,000 insurance claim on it, and the defendant had stipulated at trial to the gold bar being worth over $100,000.
The insurance had valued the claim based on a comparison to other auctioned shipwreck gold bars, the value of the bar itself in terms of “melt value,” and an increase in value based on Gold Bar 27’s “notoriety” and “iconic value.” The museum’s amount was based on its own “point system.” The district court adopted the museum’s calculated restitution amount.
On appeal, the Court vacated the district court’s order. The Court acknowledged that the gold bar’s mere “melt value” would not be enough, but held that “when the loss involves a unique item or when no ready market for it exists,” courts should try to determine the “replacement cost” rather than the fair market value. The museum’s value was not a proper “replacement value” since there was no showing that the museum utilized an expert to establish the gold bar’s value or used a reliable methodology for valuation. The Court remanded for the district court to calculate “a reasonable estimate of the replacement cost of Gold Bar 27.” The Court suggested that the insurance company had at least applied a reasonable estimate, though the district court would be free to hear additional evidence from the Government.
While the sentencing court’s error also affected the loss amount, the Eleventh Circuit affirmed the sentence since the court said it would have imposed the same sentence regardless of the Guidelines and because it was substantively reasonable for the judge to further account for the value of the bar even where the loss amount had already done so.
Appeal from the Southern District of Florida
Opinion by Rosenbaum, joined by Tjoflat and Hull
Click here to read the opinion.