2019 UT App 120



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH , Appellee
, v. D EE A LLEN R ANDALL , Appellant

.

Opinion N o. 20170836

- CA Filed July 11, 2019

Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 141906717
Nathalie S. Skibine and Woj c iech S. Nitecki
, Attorney s for Appellant Sean D. Reyes and Nathan D. Anderson
, Attorney s for Appellee

J UDGE D AVID N. M ORTENSEN authored th is Opinion
, in which J UDGES M ICHELE M. C HRISTIANSEN F ORSTER and K ATE A PPLEBY concurred.

MORTENSEN , Judge:
For many years Dee Allen Randall cheated investors out ¶1 of millions of dollars in a classic Ponzi scheme. 1 Financial

1 . A Ponzi scheme is a “fraudulent investment scheme in which money contributed by later investors generates artificially high dividends or returns for the original investors, whose example
at tracts even larger investments.” Ponzi Scheme , Black’s Law Dictionary (11th ed. 2019). “ Money from the new investors is used directly to repay or pay interest to earlier investors, (continued...)State v. Randall

20170836

- CA 2 2019 UT App 120 carnage for Ra ndall’s victims followed. The ill

- gotten money is gone. On balance, the victims and their families will suffer from the burden and effects of Randall’s fraud forever. After Randall was charged wi th a number of crimes, he ple d guilty to four counts of securities fraud and one count of engaging in a pattern of unlawful activity. He was sentenced to prison. Months later
, the sentencing court held a hearing

a nd determined that both complete and court

- ordered

re stitution should be set at $10.2 million, although the record reflected that investors may h ave been fleeced out of over $36 .8 million. 2 Randall appeals the restitution determination. We affirm.

BACKGROUND

The Crime

Over about a ten

- year period, Randall ran a Ponzi scheme ¶2 that defrauded more than 500 investors out of over $ 36.8 million. He sold investors private placement securities in one of his

(...continued) [usually] without any operation or revenue

- producing activity oth er than the continual raising of new funds.” Id

.

2

. “‘Complete restitution’ means restitution necessary to compensate a victim for all losses caused by the defendant,” while “ ‘[c]ourt

- ordered restitution’ means the restitution the court having criminal jurisdiction orders the defendant to pay as a part of the criminal sentence.” Utah Code Ann. § 77

- 38a

302(2)(a)

– (b) ( LexisNexis 2017 ). “ Court

- ordered restitution is therefore a subset of complete restitution that, among other things, takes into account the defendant’s circumstances.” State v. Hamilton , 2018 UT App 202, ¶ 28, 437 P.3d 530 (cleaned up).State v. Randall

20170836

- CA 3 2019 UT App 120 several companies (Horizon Entities). 3 These securities (Horizon Notes), on which Randall promised a return of nine to seventeen percent annually, were promissory notes issued by Horizon Entities. 4 But the companies composing Horizon Entities were failing; financial audits revealed that they had been operating at a loss for years and were not expected to survive another. To keep Horizon Entities afloat , Randall commingled funds among his companies a nd used new inve stor money to pay old investors

. In fact, Randall admitted to running a “legal Ponzi scheme” during his bankruptcy pr oceedings . The director of the Utah Division of Securities described Randall’s scheme as “probably one of the two or three most egregiou s cases of securities fraud that [he had ] seen in the state.” The State charged Randall with eighteen counts of securities fraud and one count of a patter n o f unlawful activity.

The Plea Agreement

Just weeks before trial, Randall pled guilty to four counts ¶3 of securities fraud and one count of engaging in a pattern of unlawful activity

. T he State dismissed the remaining counts

. The victims of the securitie s fraud counts to which Randall pled

3

. A private placement security is an “offering exempt from registration with the SEC . . . . Generally speaking, private placements are not subject to some o f the laws and regulations that are designed to protect investors, such as the comprehensive disclosure requirements that apply to registered offerings.” U.S. Sec

. & Exch. Comm’n, Investor Bulletin: Priv ate Placements Under Regulation D (Sept. 24, 2014 ) , https://www.sec.gov/oiea/investor

alerts

- bulletins/ib_privateplacements.html [ https://perma.cc/VC9 W

- MU48 ]

.

4 . Horizon Entities consisted of companies involved in real estate development and issuing automobile l oans to people with poor credit.State v. Randall

20170836

- CA 4 2019 UT App 120 guilty

— two individuals and two couples

— we re named in the plea agreement

. T he pattern of unlawful activity count to which Randall ple d guilty did not identify specific victims but stated that “commencing on or about June 2 009 and continuing through at least April 2011
, [ Randall ] engaged in conduct which constituted the commission of at least three episodes of unlawful activity” involving securities fraud . Randall acknowledged that he “may be ordered to make restitution to any victim or victim s of [his] crimes, including any restitution that may be owed on charges that are dismissed as part of a plea agreement.” T he plea agreement further spec i fied,
[Randall] agrees to an order of “complete” restitution pertaining to all vic tims, whether named or unnamed , in an amount to be determined by the Court. The defendant acknowledges that the State will seek restitution in the approximate amount of $36.8 million for investors listed in the attached spreadsheet [ 5 ]

. . . . The State ack nowledges that the defendant may dispute restitution for investors listed therein, and the parties agree that the Court shall determine whether the Pattern of Unlawfu l Activity statute, [Utah Code s ections 76

- 10

- 1601 to

- 1609], permits restitution pertaini ng to all such investors. . . . [Randall’s] “court

- ordered” restitution shall be determined in accordance with [Utah Code section] 77

- 38a

- 302(2)(c). [ 6 ]
(Emphasis added.)

5

. The attached spreadsheet identified more than 500 investors and their respective losse s, totaling over $36.8 million

.

6

. This section of the code points to the factors a sentencing court is to consider in determining complete and court

- ordered restitutio n.State v. Randall

20170836

- CA 5 2019 UT App 120 At the ple a hearing, Randall admitted that he “recklessly ¶4 made . . . material omissions” in representing the investments he offe red to the defrauded investors and that he “engaged in a pattern of activity which involved . . . paying . . . old investments with new invested money in at least three instances.” Randall’s counsel, howeve r, noting that there was no agreement regarding restitution, asked for a post

- sentencing hearing.

Sentencing
At the sentencing hearing, Randall asked the court to ¶5 suspend any prison sentence and place him on probation so that he could “work to repay what . . . he took unlawfully .” He submitted a repayment plan that contemplated the distribution of $1.4 million to defraud ed investors over a period of fifteen years

. Randall further stated
, “Look, I’m guilty. . . . I did this. Investors lost money
, because of my actions, my omissions.” He admitted that he did not disclose to investors how poorly his businesses were doing
, because “people would not have invested” had they known the truth. He further stated, “ I am so deeply sorry for every single inve stor, not only those who are sitting here, but others that are not

. ” (Emphasis added.) He added,

“ I am committed to work every day of my life. . . . I am determined to do whatever I can to see that they all get as much money as they can before the day I di e.” While admitting that he would be unlikely to “pay the entire restitution,” Randall noted that he could “at least pay the restitution to begin with to the people who were named in the information.” Nevertheless, Randall acknowledged that his responsibil ity to pay restitution

“ doesn’t stop with just the investors who are listed in the information.”

The State asked that Randall b e sentenced to prison, ¶6 stating,

You don’ t defraud people out of $36.8 mil lion and get probation. You don’ t destroy hundreds andState v. Randall

20170836

- CA 6 2019 UT App 120 h undreds of lives and get probation. . . . [H]undreds of people have to suffer emotional and physical pain, possibly early deaths, family conflict, loss of house, business, et cetera, but he gets to stay in his house and stay with his family? If that’ s how t hings work, something is wrong.
The court agreed with the State and sentenced Randall to three
to fifteen years on the securities counts and one to fifteen years in prison on the pattern of unlawful activity count.

Restitution
At the restitution hearing, the State asked for complete ¶7 restitution in the amo u nt of $36.8 million to repay all those Randall ha d defrauded

. Randall disputed this amount. He first argued that the plea agreement limited his pattern of unlawful activity to the period betw een June 2009 and April 2011

. C iting Utah Code s ection 77

- 38a

- 3 02 (5)(a) , Randall then argued that the S t ate had not proved all the investors in that time period were “directly harmed” by Randall’ s criminal conduct “in the course of a scheme, conspiracy or pattern
, ” thus greatly limiting the amount of complete rest itution the court should impose

. The sentencing court agreed with Randall on the first argument and limited the restitution he owed to the victims he had defrauded between June 20 09 and April 2011

. 7 But the court disagreed with Randall on the second argument, finding that the “victims were directly harmed” by Randall’s criminal conduct. Accordingly
, the court set complete restitution at $10.2 million.
Regarding court

- ord e red restitution , Randall argued that ¶8 the amount should be set at $31,000

— the amount held in Randall ’s trust account with the court . Randall argued that in

7

. The court determined that Randall’s conduct harmed 156 investors during this period

.State v. Randall

20170836

- CA 7 2019 UT App 120 light of his circumstances

— namely, he had no financial
resources, he was going to prison for at least nine years
, he was sixty

- seven years old and would be seventy

- five when released

— there was “no reason to impose additional court

ordered restitution in this case.” The State, while agreeing that Randall lacked the financial resources to pay complete restitution, argued that court

- order ed restitution should be set at $10.2 m illion
, given the “overwhelming amount of loss” and the “enormous f raud” visited upon the victims.
The sentencing court responded by stating th at it had ¶9 considered the restituti on factors listed in Utah Code s ection 77

- 38a

- 302 (5)(a)

– (b) and determined that “these victims listed here were directly harmed

. . . by [Randall’s] actions, and there’s an absolute n exu s t here.” The court noted that Randall had taken the life savings of many of his victims and left them with

n othing . In applying section 77

- 38a

- 302 (5) (c), the court acknowledged that, given the lack of financial resources, court

ordered restitut ion imposed a burden on Randall . Although it found his inability to pay “problematic
, ” the court weighed this burden against “the fact that [ Randall ] took [money] from other people.” After “seriously looking at all of those factors,” the
court set co urt

- ordered restitution at $10.2 million, the same as complete restitution. Randall appeals.

ISSUES AND STANDARDS OF REVIEW
Randall first asserts that the sentencing court erred when ¶10 it set the amount of complete restitution at $10.2 million based on the combined net losses of the 156 people who invested with Randall from June 2009 until April 20 11. Second, Randall claims that the sentencing court erred, after it considered but rejected Randall’s arguments, in calculating court

- ordered restitution as the same amount as complete restitution.
“[I]n the case of restitution, a reviewing court will not ¶11 disturb a [sentencing] court’s determination unless the courtState v. Randall

20170836

- CA 8 2019 UT App 120 exceeds the authority prescribed by law or abuses its discretion.” State v. Laycock , 2009 UT 53, ¶ 10, 214 P.3d 104. “A court will be deemed to have abused its discretion only if no reasonable person would take the view adopted by the [sentencing] court.” State v. England , 2017 UT App 170, ¶ 9, 405 P.3d 848 (cleaned up)

.

ANALYSIS

I. Complete Restitution

A. Scope of Complete Restitution
Randall argues on appeal that the sentencing court erred ¶12 when it c onsidered the losses suffered by 156 investors and s et complete restitution at $10.2 million. R andall contends that at
most the charges to which he pled guilty encompass ed twelve victim s and result ed in about $1. 2 million in losses. Thus, this issue requires us to determine whether the sentencing court correctly included 156 investors as Randall’s victims. We conclude that it did.

“W hen a person is convicted of criminal activity that has ¶13 resulted in pecuniary damag es, . . . the court shall order that the defendant make restitution to the victims, or for conduct for which the defendant has agreed to make restitution as part of a plea agreement.” Utah Code Ann. § 76

- 3

- 201(4)(a) (LexisNexis 2017)

. 8 The Crime Victims Re stitution Act (Restitution Act)
, see general ly id. §§ 77

- 38a

- 101 to

- 601, defines a victim as “ any person

. . . who the court determines has suffered pecuniary damages as a result of the defendant’s criminal activities
, ” i d. § 77

- 38a

102(14)(a) (emphasis added)

. Furthermore, “ [a] victim of an offense that involves as an element a scheme, a conspiracy, or a

8 . Because the statutory provision s in effect at the relevant time do not differ in any material way from the provision s now in effect, we cite the current version o f the Utah Code.State v. Randall

20170836

- CA 9 2019 UT App 120 pattern of criminal activity, includes any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or patter n.” Id. § 77

- 38a

- 302(5)(a) (emphasis added).

“ According to the plain language of the statute, restitution can include payment for crimes not listed in the information so long as a defendant admits responsibility or agrees to pay restitution.” State v. Bick ley , 2002 UT App 342, ¶ 9, 60 P.3d 582. But “ a defendant cannot be ordered to pay restitution for criminal activities for which the defendant did not admit responsibility, was not convicted, or did not agree to pay restitution.” Id.
Here, Randall claims that he did not agree to pay ¶14 restitution to all 156 investors

. But the plain language of his plea agreement leads us to arrive at a contrary conclusion. The plea agreement stated that Randall “agrees to an order of ‘ complete ’ restituti on pertaining to all victims, whether named or unnamed
, in an amount to be determined by the [sentencing court].” Furthe rmore, the plea agreement stated that Randall and the State “agree that the [sentencing court] shall determine whether the Pattern of Un lawful Activity statute, [ Utah Code s ections 76

- 10

- 1601 to

- 1609 ] , permits restitution pertaining to all such investors.” And the court made such a determination in Randall’s case. Before the sentencing court, the State argued that the words “all victims ” in Randall’s plea agreement required him to pay re stitution in the amount of $36.8 million to the more than 500 investors he defrauded. Randall disputed this claim and argued that the pool of i nvestors should be more limited

. The court agreed with Randall and limited the victim pool to those defrauded between June 2009 and April 2011 , namely 156 investors

.
Randall also argues that the pool of defrauded investors ¶15 encompassed by the plea agreem ent should be further limited to the twelve victims he admitted ha rming, resulting in complete restitution of $1.1 million . But Randall ignore s some key parts of the record establish ing that he admitted to defrauding more thanState v. Randall

20170836

- CA 10 2019 UT App 120 the twelve named victims. At the sentencing hearing he stated
,

“ I am so deeply sorry for every single investor, not only those who are sitting here, but others that are not .” (Emphasis added.) Randall admitted his responsibility to pay restitution “ doesn’t stop with just the investors who are listed in the information. ” (Emphasis added

. ) And w hile acknowledging he would be unlikely to

re pay all those he defrauded, Randall offered that he could “at least pay the restitution to begin with to the people who were named in the information.” (Emphasis added.) Finally, Randall stated
,

“ I am determined to do whatever I can to see that they [i.e., the investors] all get as much money as they can before the day I die.” To this end, he presented a $1.4 million repayment plan. If Randall were admitting that he had defrauded twelve i nvestors of only $1.1 million, we are at loss as to why he would present a repayment plan in excess of that amount that would only “begin” to repay investors . The obvious reason is that Randall himself acknowledged that his fraud extended beyond the twelve named individuals.

Even if Randall did not exp licitly admit that he defrauded ¶16 more than twelve victims, the sentencing court still retained discretion to order restitution for the 156 victims who were defrauded by Randall’s pattern of unlawful activity co vered by the plea agreement

. In State v. Hight , 2008 UT App 118, 182 P.3d 922, a defendant pled guilty to the “broad offense” of burglary and stealing marijuana. Id. ¶ 4

. Although he never admitted to stealing a watch
, a set of keys, and a silver dollar co llection, which were missing from the burglarized premises, the trial court ordered that the defendant pay restitution for those items. Id

. The defendant claimed that th e trial court erred in ordering restitution for the missing items because “his responsibility for any particular missing items must be firmly established before the court [could] order restitution for them.” Id. (cleaned up). We

a ffirmed the trial court : “On ce [the defendant pled] guilty to burglary, the trial court acted within its broad discretion, after reviewing the evidence presented at the restitution hearing, inState v. Randall

20170836

- CA 11 2019 UT App 120 ordering restitution for any pecuniary damages clearly resulting from the burglary.” Id. ¶ 5.
Here, Randall pled guilty to “ engag[ing] in conduct which ¶17 constituted the commission of at least three episodes of unlawful activity as defined in [the Pattern of Unlawful Activity Act].” And Randall agreed to allow the sentencing court to determine the amount of restitution owed to all investors, “whether named or unnamed,” harmed by h is pattern of unlawful activity

. As in Hight , Randall pled guilty to the broad offense of enga ging in a pattern of unlawful activity between June 2009 and April 2011 throu gh which he defrau ded named and unnamed investors

. Once Randall pled guilty to a pattern of unlawful activity during the period in question, the sentencing court “acted within its broad discretion . . . in ordering restitution for any pecuniary damages” suffered by the 156 victims Randall defrauded during that time. See id.
We conclude that the sentencing court correctly ¶18 determined that the plea agreement Randall signed included his admission that he defrauded 156 investors of $10.2 million between June 2009 and April 2011.

B. Causation
Randall also argues tha t the State failed to establish that ¶19 Randall’s crimes caused the l osses suffered by the investors . We f ind this argument unpersuasive.

“P roximate cause is required to find that a criminal ¶20 activity has resulted in pecuniary damages.” State v. Ogden , 2018 UT 8, ¶ 48, 416 P.3d 1132 (cleaned up). “ Proximate cause has two elements. First, but

- for causation must be present; indeed, proximate cause is that cause which, in a natural and continuous sequence, unbroken by any new cause, produced the injury, and withou t which the inju ry would not have occurred . Second, the harm must be foreseeable. ” State v. Oliver , 2018 UT App 101, ¶ 21, 427 P.3d 495 (cleaned up).State v. Randall

20170836

- CA 12 2019 UT App 120 T he record indicates that Randall’s actions proximately ¶21 caused pecuniary damage to the investors. Randall sold investors private placement securities in his companies. He induced victims to hand over their money by promising annual returns of nine to seventeen percent. All the while, Randall knew his companies were failing and had been for years. Randall engaged in the reckless practice of keeping his companies afloat by commingling funds among them and using new investor money to pay old investors

— a classic Ponzi scheme

. Indeed, Randall’s lies caused people wh o trusted him to transfer thei r life savings into his care

. A s Randall’s counsel admitted, had these trusting souls known the truth, they “would not have invested.” Thus, by failing to disclose essential information to investors, Randall’s conduct was a “ s ubstantial causative factor” leading to the losses they incurred

. See McCorvey v. Utah State Dep’t of Transp. , 868 P.2d 41, 45 (Utah 1993). Furthermore, given Randall’s knowledge of the precarious financial health of his companies, the potential for harm t o investors was entirely foreseeable , if not inevitable

. Thus, we conclude that the sentencing court properly ¶22 determin ed that Randall’s conduct proximately caused t he losses of the 156 investors.

II. Court

- Ordered Restitution
Randall argues that the sentencing court erred in ¶23 calculating court

- ordered restitution i dentical in amount to complete restitution. Court

- ordered restitution is the “restitution the court having criminal jurisdiction orders the defendant to pay as a part of the criminal sentence. ” Utah Code Ann. § 77

- 38a

302(2)(b) (LexisNexis 2017) . The amount of court

- ordered restitution is determined by the court after it has calculated complete restitution under the Restitution Act. The factors for court

- ordered restitution include (1) the factors for complete restitution, including the loss to the victim, (2) “ the financ ial resources of the defendant,” (3) “ the burden that payment ofState v. Randall

20170836

- CA 13 2019 UT App 120 restitution will impose, with regard to the other obligations of the defendant ,” (4) “ the ability of the defendant to pay restitution on an installment basis ,” (5) “ the rehabilitative effect on the defendant ,” and (6) “ other circumstances that the court determines may make restitution inappropriate. ” Id. § 77

- 38a

- 302(5 )( b )

– (c); see also State v. Thomas , 2016 UT App 79 , ¶ 4, 372 P.3d 87 (per curiam). “ Court

- ordered restitution may be identical in amount to complete restitution, but it need not be so.” State v. Laycock , 2009 UT 53, ¶ 30, 214 P.3d 104. “Additionally, in the case of restitution, a reviewing court will not disturb a [sentencing] court’s determination unless the court exceeds the authority prescribed by law or abuses its discretion.” Id. ¶ 10. Finally, “ a restitution order will be overturn ed for abuse of discretion only if no reasonable person would take the view adopted by the [sentencing] court.” Thomas , 2016 UT App 79, ¶ 4 (cleaned up)

. The analysis on this issue requires us to determine ¶24 whether the sentencing court adequately considered the factors for complete and court

- ordered restitution

. See Utah Code Ann. § 77

- 38a

- 302(5)(a)

– (c). The record indicates that it did. Making explicit reference to Utah Code s ection 77

- 38a

- 302 (5)(a)

– (b), the court determined that Randall directly harmed th e victims when he took their life sav ings and left them with nothing . The court described one defrauded co uple in poignant terms: “ [ T ] hey are both sick now and they both now somehow have to go back out and get work, and they are in their 60s and they aren ’ t healthy, and they had no idea where to
turn

. ” Referencing Utah Code section 77

- 38a

- 302(5)(c), the sentencing court then consid e red Randall’s financial resources
, acknowledging that restitution im posed a heavy burden on Randall . It noted that Randall was old, going to prison, and m a y never get out. Although the court found Randall’s circumstance s “problematic,” it weighed the burden that restitution imposed

on him against the harm inflicted on his victims . After “seriously looking at all of those factors,” the court set co urt

- ordered restitution at $10.2 million

.State v. Randall

20170836

- CA 14 2019 UT App 120 Randall “ essentially argues that because the court

¶25 ordered restitution amount was not lower than the complete restitution amount, the [sentencing] court must have failed to consider the required factors and, therefore, it abused its discretion. ” See Thomas , 2016 UT App 79, ¶ 5. But the record shows that the sentencing court considered all required factors and found that they weighed in favor of substantial court

ordered restitution . T he Restitution Act requires only that the sentencing court “consider” the financial resources of a defendant in imposing restitution. See Utah Code Ann. § 77

- 38a

30 2 (5)(c)

. This statute in no way requires that Randall’s crime

induced, self

- inflicted financial straits be given dispo sitive effect in determining court

- ordered restitution. The fact that Randall will most likely never pay the $10.2 mi llion court

- ordered restitution “ does not, standing alone, demonstrate that the [sentencing] court failed t o consider the statutorily required factors. ” See Thomas , 2016 UT App 79, ¶ 6 . As our supreme court has pointed out, restitution has a two

- fold purpose. “One purpose is to compensate the victim for pecuniary damages. The other purpose, as a part of a criminal sanction, is to rehabilitate and deter the defendant, and others, from future illegal behavior.” Laycock , 2009 UT 53, ¶ 18

. R ehab ilitation refers to the

“ process of seeking to improve a criminal’s character and outlook so that he or she can function in society without committing other crimes.” Rehabilitation , Black’s Law Dictionary ( 11th ed. 20 19 ). Thus, “ r estitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, th e harm his actions have caused. . . . The direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fin e

. ” Laycock , 2009 UT 53, ¶ 18 (cleaned up). From this perspective, the imposition of $10.2 million in restitution will arguably have the most impact

on Randall and others

. T his restitution order will mak e Randall and other potential fraudsters more sensitive to greed’s cost and the real harm caused. Finally, if there is any remote possibility that Randall can pay anything, his victims should remain first in line to claim any funds to which Randall may have access, evenState v. Randall

20170836

- CA 15 2019 UT App 120 to the end of his days. T his ap proach acknowledges how devastating financial crimes like these are to the lives of so many.

We conclude that the sentencing court properly ¶26 considered the statutory factors and did not abuse its discretion in imposing $10. 2 million in court

- ordered restitu tion.

CONCLUSION
The sentencing court correctly determined that Randall ¶27 admitted in his plea agreement to d efrauding 156 investors of $10.2 million between June 2009 and April 2011 . Randall’s fraud caused the losses suffered by these 156 investors , and the sentencing court did not abuse its discretion in setting court

ordered restitution at $10. 2 million.

Affirmed. ¶28