Second Circuit Rejects Challenge to Restitution Order On Grounds of Victims' "Unclean Hands"

Are you entitled to restitution even if your own motives were not as pure as the driven snow?  That’s the simple question raised in a short decision today from the Second Circuit.  In United States v. Ojeikere, 07-1970-cr (October 7, 2008), the defendant was convicted of wire fraud, arising out of an “advance fees” scam that tricked victims into paying the defendant to release large sums of money supposedly held in Nigeria.  One of the issues on appeal was whether Ojeikere’s “victims’ hands [were] too dirty to claim restitution, since they all participated in what they thought was a fraudulent scheme to obtain money from Nigeria.”  Rejecting this creative pox-on-both-their-houses challenge, the Court held:

We hold that restitution under the MVRA may not be denied simply because the victim had greedy or dishonest motives, where those intentions were not in pari materia with those of the defendant.  Thus a would-be burglar who is robbed by a potential accomplice before either of them commits the planned crime may be entitled to restitution.  On the other hand, restitution would not be appropriate if one burglar were to rob another of the proceeds of a heist they have just committed . . . Because Ojeikere has not demonstrated that his victims lost ill-gotten gains, or that they were in pari materia with the scheme of which he was convicted, we AFFIRM the restitution order.