United States v. Robert S. Gordon

concurring and dissenting:

I concur in the majority opinion, with the exception of parts II, B-l and II, B-4, as to which I dissent.

Congress did, no doubt, want to help make victims of crimes whole when it enacted 18 U.S.C. § 3663A. However, Congress also hoped to avoid creating a system that would, essentially, turn criminal sentencing hearings into complicated, prolonged trials of the normal civil variety. See 18 U.S.C. § 3663A(c)(3)(B). Therefore, Congress did not provide that a victim could simply recover the damages that would, or might, be available in a typical civil case. Rather, when it came to defining the nature of restitution in the property area, Congress provided that if an offense resulted “in damage to or loss or destruction of property,” and if mere return of the property would be “impossible, impracticable, or inadequate,” the miscreant should pay an amount that represented “the value of the property on the date of ... loss,” or “on the date of sentencing,” whichever was greater, less the actual value of the part of the property that was returned. Id. § 3663A(b)(l).

No doubt, courts can massage and explicate the “date of loss” concept, but no authority…

This case presents the disappointing story of a promising federal appellate law *1048 clerk gone bad. Robert Gordon, a graduate of Stanford Law School and a former law clerk for one of our colleagues, a judge on the U.S. Court of Appeals for the Seventh Circuit, embezzled millions of dollars in cash and stock from his employer, Cisco Systems. Following his guilty plea conviction for wire fraud, 18 U.S.C. § 1343 , and insider trading, 15 U.S.C. § 78j(b), Gordon appeals the district court’s final order of restitution. The district court imposed restitution in a total amount of $27,397,206.84 under the Mandatory Victims Restitution Act of 1996 (“MVRA”), Title II, Subtitle A of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, codified in relevant part at 18 U.S.C. §§ 3663A, 3664 (1996). Gordon does not dispute the entire amount of the restitution order but contends that certain portions should not be included. At issue on appeal are the restitution order’s award of $12,593,902.23 for embezzled shares from one company; prejudgment interest of $2,424,913.32; and reimbursable investigation costs totaling $1,038,477.00.

The primary and…

393 F.3d 1044 UNITED STATES of America, Plaintiff-Appellee, v. Robert S. GORDON, Defendant-Appellant. No. 03-10322. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 15, 2004. Filed December 30, 2004. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED William J. Genego, Santa Monica, CA, for the defendant-appellant. Kevin V. Ryan, San Jose, CA; Hannah Horsley, San Jose, CA; and David R. Callaway, San Jose, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Northern District of California; Jeremy Fogel, District Judge, Presiding. D.C. No. CR-01-20077-JF. Before: FERNANDEZ, PAEZ, and CLIFTON, Circuit Judges. CLIFTON, Circuit Judge: 1 This case presents the disappointing story of a promising federal appellate law clerk gone bad. Robert Gordon, a graduate of Stanford Law School and a former law clerk for one of our colleagues, a judge on the U.S. Court of Appeals for the Seventh Circuit, embezzled millions of dollars in cash and stock from his employer, Cisco Systems. Following his guilty plea conviction for wire fraud, 18 U.S.C. § 1343 , and insider trading, 15 U.S.C. § 78j(b), Gordon appeals the district court's…