WASHINGTON (CN) – A former D.C. Councilman who stole money from federally funded youth programs does not have to pay back more than he took, a federal judge ruled.
Harry L. Thomas Jr. must serve more than six years in prison — 38 months for one count of theft of federal funds and an additional 36 months for one count of filing a false tax return.
Thomas pled guilty to both counts,after misappropriating $353,500 in federal funds intended for youth-based programs for his personal use between April 2007 and February 2009. At the time, he was serving as a D.C. City Council member representing Ward 5.
U.S. District Judge John D. Bates issued the restitution order for Thomas on May 31, following oral arguments that were heard during his sentencing.
The U.S. Probation Office had initially calculated a restitution amount of $446,000 consistent with the Mandatory Victims Restitution Act, the purpose of which “is to make victims of crime whole” and “to restore these victims to their original state of being.”
But Thomas argued that Supreme Court precedent in Hughey v. U.S. “limits recovery to amounts ‘directly caused by the conduct composing the offense of conviction’ or those amounts expressly agree[d] to’ pursuant to a plea agreement.”
Thomas has already paid $70,000 of the $353,500 back to D.C. under a plea agreement, but the language of the scope of restitution in that agreement was “somewhat confusing” when read literally, wrote Judge Bates’ in his memorandum opinion.
The judge cited numerous conflicting precedents in his ruling, including “instances where restitution orders were based on total losses caused by a scheme as opposed to the charged and convicted offense.”
According to the opinion, “Under certain circumstances, restitution can extend beyond the offense of conviction if a ‘scheme, conspiracy, or pattern of criminal activity’ is an element of the offense, or if a plea agreement allows for a greater amount.”
However, Bates chose to focus on 18 U.S.C. which provides that a “scheme, conspiracy, or pattern of criminal activity” is not an element of the offense. He felt that although the word “scheme” was used at Thomas’ sentencing hearing to describe his conduct, it was not an actual element of his offense.
Bates wrote, “Because the charged and convicted offense was for the theft of $353,500, and section 666(a)(1)(A) [of 18 U.S.C.] does not contain an element of a ‘scheme, conspiracy, or pattern of criminal activity,’ and nothing in the plea agreement reflects that the parties agreed that Thomas would make restitution for amounts beyond the convicted offense, the Court concludes that restitution.” Thomas must pay the remaining $283,500 through a prison program and release any tax and assets information to the Probation Office until all restitution is satisfied.