United States District Court, D. Arizona
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE.
November 14, 2018, the Court sentenced Defendant Scott Allen
Maasen, with restitution to be determined. Doc. 125.
Defendant's former spouse, Julie Holm, seeks restitution
pursuant to 18 U.S.C. § 3663A, the Mandatory Victim
Restitution Act (“MVRA”). Doc. 124. For the
following reasons, the Court will deny Ms. Holm's motion.
November 2009, Defendant filed two petitions for bankruptcy
in the United States Bankruptcy Court for the District of
Arizona: one in his individual capacity and one on behalf of
his wholly owned limited liability company, Massen Realty
Investments, LLC. Doc. 126 at 9. In June 2011, Defendant
began purchasing an engagement ring priced at $89, 926,
making periodic payments to the jeweler. In February 2012,
Defendant reversed the charges and had his father pay for the
ring to appear as if his father was the owner. Defendant
insured the ring through his personal insurance policy with
his fiancée. Id.
of his ongoing bankruptcy proceedings, Defendant was required
to file monthly reports of all of his expenses, signed under
penalty of perjury. Defendant never reported his purchase of
the engagement ring, and he knowingly and fraudulently
concealed the purchase from his creditors and the United
States Trustee. Id. at 9-10. In April 2018,
Defendant pled guilty to Concealment of Assets in Bankruptcy
in violation of 18 U.S.C. § 152(1), a Class D felony
offense (Doc. 83), and the Court accepted his plea in
November 2018 (Doc. 126). Sentencing information indicated
that Defendant hid substantial additional assets, income, and
expenses from the bankruptcy court. See, e.g., Doc.
Holm seeks restitution from Defendant pursuant to §
3663A of the MVRA for forensic accounting fees, dissipation
of assets during her and Defendant's divorce, the value
of concealed community property, and dissipation of assets
during other civil matters, all totaling $178,
097.60. Doc. 124-1 at 1-2, 13.
The Mandatory Victims Restitution Act.
MVRA requires a court to order restitution when sentencing a
defendant convicted of (1) “an offense against property
[under Title 18], including any offense committed by fraud or
deceit, ” and (2) when there is “an identifiable
victim or victims [who] suffered . . . pecuniary loss.”
18 U.S.C. § 3663A(a)(1)-(2), (c)(1); United States
v. Thomsen, 830 F.3d 1049, 1065 (9th Cir. 2016);
United States v. Luis, 765 F.3d 1061, 1065 (9th Cir.
2014). The party asserting a claim for restitution must prove
the claim and the amount due by a preponderance of the
evidence. United States v. Gamma Tech. Indus., Inc.,
265 F.3d 917, 924 (9th Cir. 2001).
Offense Against Property or Committed by Fraud or
MVRA does not define “offense against property.”
See 18 U.S.C. § 3663A; Luis, 765 F.3d
at 1065. But the Ninth Circuit has defined an offense against
property as any offense that “infring[es] on a
victim's property interest.” Luis, 765
F.3d at 1065. Under this definition, the Ninth Circuit has
found offenses against property from a failure to pay child
support that involved pecuniary loss, United States v.
Stephens, 374 F.3d 867, 871 (9th Cir. 2004); mail fraud,
United States v. Hunter, 618 F.3d 1062, 1064 (9th
Cir. 2010); money laundering and conspiracy to launder money,
United States v. Lazarenko, 624 F.3d 1247, 1249-50
(9th Cir. 2010); and offenses arising out of a mortgage fraud
scheme, including bank fraud and loan fraud, United
States v. Rizk, 660 F.3d 1125, 1134-37 (9th Cir. 2011).
Physical damage is not required. Luis, 765 F.3d at
1066. The MVRA also applies to offenses “committed by
fraud or deceit.” 18 U.S.C. § 3663A(c)(1)(A)(ii).
Holm does not explain how Defendant's concealment of the
engagement ring or other assets from the bankruptcy court in
violation of 18 U.S.C. § 152(1) constitutes an offense
against her property under the MVRA. She does not argue that
she was one of Defendant's creditors in the bankruptcy
cases or otherwise explain how Defendant's count of
conviction infringed her property interests specifically. Ms.
Holm also does not expressly argue that § 152(1)
constitutes an offense committed by fraud or deceit, but
because the language of § 152(1) prohibits
“fraudulently conceal[ing]” property, the Court
finds that Defendant's count of conviction falls within
the text of the MVRA.
Holm seems to argue that she is entitled to restitution for
uncharged conduct based on a fraud scheme by Defendant.
See, e.g., Doc. 124-1 at 5-6. The uncharged conduct
appears to include concealment of assets from the domestic
relations court, concealment of assets from Ms. Holm, and
prolonging the litigation and expenses in the domestic
relations court. Id. Ms. Holm also makes vague
allegations about “other litigation on multiple
fronts” and “improper equitable distribution of
property.” Id. at 5.
MVRA allows a victim to receive restitution for harm caused
by “related but uncharged conduct that is part of a
fraud scheme, ” but only when “the crime of
conviction includes a scheme, conspiracy, or pattern of
criminal activity as an element of the offense.”
Thomsen, 830 F.3d at 1065-66. “Such
restitution is not limited to harm caused by the particular
counts of conviction (as it would be absent the scheme
element).” In re Her Majesty the Queen in Right of
Canada, 785 F.3d 1273, 1276 (9th Cir. 2015). Ms. Holm is
not entitled to restitution for Defendant's uncharged
conduct, however, because his crime of conviction does not
include as an element “a scheme, conspiracy, or pattern
of criminal activity.” Thomsen, 830 F.3d at
pled guilty to a statute pertaining to concealment of assets