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Tuesday, September 07, 2004

We Got the Power! The Second Circuit, in United States v. Ekanem, decided a question of first impression in the Circuit -- whether the government can be a victim under the Mandatory Victim's Restitution Act of 1996 ("MVRA"), which provides the Court with the power to order restitution to the victims of certain offenses, including offenses against property. In this case, the defendant had embezzled funds provided to a not-for-profit corporation by the United States. Ekanem argued that the statute was not applicable when the "victim" was the government. The basis for this position is that the statute defined victim as " a person directly and proximately harmed as a result of the commision of an offense for which restitution may be ordered." Under the Dictionary Act, the government is excluded from the term "person." However, the Second Circuit noted that the Dictionary Act's definition does not apply if the context of a particular statute indicates otherwise. The language of the MVRA indicated that the government could be a victim thereunder. The Court also noted that the term "victim" in the Victim and Witness Protection Act included the government. Finally, the Court held that inclusion of the government within the term "victim" is consistent with the intent and purpose of the MVRA. Hence, the Second Circuit held that courts have the power to order restitution to the government under the MVRA. The decision can be found here.

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