2019 UT App 120

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

DEE ALLEN RANDALL,

Appellant.

Opinion

No. 20170836-CA

Filed July 11, 2019

Third District Court, Salt Lake Department

The Honorable Mark S. Kouris

No. 141906717

Nathalie S. Skibine and Wojciech S. Nitecki, 

Attorneys for Appellant

Sean D. Reyes and Nathan D. Anderson, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN FORSTER and KATE APPLEBY 

concurred.

MORTENSEN, Judge:

¶1 For many years Dee Allen Randall cheated investors out 

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 

attracts 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 Randall’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 with a number of crimes, he pled 

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 

and determined that both complete and court-ordered 

restitution should be set at $10.2 million, although the record 

reflected that investors may have been fleeced out of over $36.8

million.2 Randall appeals the restitution determination. We 

affirm.

BACKGROUND

The Crime

¶2 Over about a ten-year period, Randall ran a Ponzi scheme 

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 

other 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. § 77-38a302(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).
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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 and used new investor money to pay old 

investors. In fact, Randall admitted to running a “legal Ponzi 

scheme” during his bankruptcy proceedings. The director of the 

Utah Division of Securities described Randall’s scheme as 

“probably one of the two or three most egregious 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 pattern of unlawful activity.

The Plea Agreement

¶3 Just weeks before trial, Randall pled guilty to four counts 

of securities fraud and one count of engaging in a pattern of 

unlawful activity. The State dismissed the remaining counts. The

victims of the securities 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 of 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: Private Placements Under 

Regulation D (Sept. 24, 2014), https://www.sec.gov/oiea/investoralerts-bulletins/ib_privateplacements.html [https://perma.cc/VC9

W-MU48].

4. Horizon Entities consisted of companies involved in real estate 

development and issuing automobile loans to people with poor 

credit.
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20170836-CA 4 2019 UT App 120

guilty—two individuals and two couples—were named in the 

plea agreement. The pattern of unlawful activity count to which 

Randall pled guilty did not identify specific victims but stated 

that “commencing on or about June 2009 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 victims 

of [his] crimes, including any restitution that may be owed on 

charges that are dismissed as part of a plea agreement.” The plea

agreement further specified,

[Randall] agrees to an order of “complete” 

restitution pertaining to all victims, 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 acknowledges that the 

defendant may dispute restitution for investors 

listed therein, and the parties agree that the Court 

shall determine whether the Pattern of Unlawful 

Activity statute, [Utah Code sections 76-10-1601 to 

-1609], permits restitution pertaining 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 losses, 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 

restitution.
State v. Randall

20170836-CA 5 2019 UT App 120

¶4 At the plea hearing, Randall admitted that he “recklessly 

made . . . material omissions” in representing the investments he 

offered 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, however, noting that there was no agreement regarding 

restitution, asked for a post-sentencing hearing.

Sentencing 

¶5 At the sentencing hearing, Randall asked the court to 

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 defrauded 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 investor, 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 die.” 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 responsibility to pay restitution 

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

information.”

¶6 The State asked that Randall be sentenced to prison, 

stating,

You don’t defraud people out of $36.8 million and 

get probation. You don’t destroy hundreds and 
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20170836-CA 6 2019 UT App 120

hundreds 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 things 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

¶7 At the restitution hearing, the State asked for complete 

restitution in the amount of $36.8 million to repay all those 

Randall had defrauded. Randall disputed this amount. He first 

argued that the plea agreement limited his pattern of unlawful 

activity to the period between June 2009 and April 2011. Citing 

Utah Code section 77-38a-302(5)(a), Randall then argued that the 

State 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 restitution 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 2009 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.

¶8 Regarding court-ordered restitution, Randall argued that 

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.
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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 courtordered restitution in this case.” The State, while agreeing that 

Randall lacked the financial resources to pay complete 

restitution, argued that court-ordered restitution should be set at

$10.2 million, given the “overwhelming amount of loss” and the 

“enormous fraud” visited upon the victims.

¶9 The sentencing court responded by stating that it had 

considered the restitution factors listed in Utah Code section 

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 nexus there.” The court noted that Randall had taken 

the life savings of many of his victims and left them with 

nothing. In applying section 77-38a-302(5)(c), the court 

acknowledged that, given the lack of financial resources, courtordered restitution 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 court-ordered restitution at $10.2 million, the same as 

complete restitution. Randall appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Randall first asserts that the sentencing court erred when 

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 2011. 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.

¶11 “[I]n the case of restitution, a reviewing court will not

disturb a [sentencing] court’s determination unless the court 
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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

¶12 Randall argues on appeal that the sentencing court erred 

when it considered the losses suffered by 156 investors and set 

complete restitution at $10.2 million. Randall contends that at 

most the charges to which he pled guilty encompassed twelve 

victims and resulted 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.

¶13 “When a person is convicted of criminal activity that has 

resulted in pecuniary damages, . . . 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 Restitution Act (Restitution Act), see 

generally 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,” id. § 77-38a102(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 provisions in effect at the relevant time 

do not differ in any material way from the provisions now in 

effect, we cite the current version of 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 pattern.” 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. Bickley, 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.

¶14 Here, Randall claims that he did not agree to pay 

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’

restitution pertaining to all victims, whether named or unnamed, 

in an amount to be determined by the [sentencing court].” 

Furthermore, the plea agreement stated that Randall and the 

State “agree that the [sentencing court] shall determine whether 

the Pattern of Unlawful Activity statute, [Utah Code sections 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 restitution 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 investors 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.

¶15 Randall also argues that the pool of defrauded investors 

encompassed by the plea agreement should be further limited to 

the twelve victims he admitted harming, resulting in complete 

restitution of $1.1 million. But Randall ignores some key parts of 

the record establishing that he admitted to defrauding more than 
State 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 while acknowledging he would be unlikely to 

repay 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 investors 

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.

¶16 Even if Randall did not explicitly admit that he defrauded 

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 covered 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 collection, 

which were missing from the burglarized premises, the trial 

court ordered that the defendant pay restitution for those items. 

Id. The defendant claimed that the 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 

affirmed the trial court: “Once [the defendant pled] guilty to 

burglary, the trial court acted within its broad discretion, after 

reviewing the evidence presented at the restitution hearing, in 
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20170836-CA 11 2019 UT App 120

ordering restitution for any pecuniary damages clearly resulting 

from the burglary.” Id. ¶ 5.

¶17 Here, Randall pled guilty to “engag[ing] in conduct which 

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 his pattern of unlawful activity. As in 

Hight, Randall pled guilty to the broad offense of engaging in a 

pattern of unlawful activity between June 2009 and April 2011 

through which he defrauded 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.

¶18 We conclude that the sentencing court correctly 

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

¶19 Randall also argues that the State failed to establish that 

Randall’s crimes caused the losses suffered by the investors. We 

find this argument unpersuasive.

¶20 “Proximate cause is required to find that a criminal 

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 

without which the injury would not have occurred. Second, the 

harm must be foreseeable.” State v. Oliver, 2018 UT App 101, 

¶ 21, 427 P.3d 495 (cleaned up).
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20170836-CA 12 2019 UT App 120

¶21 The record indicates that Randall’s actions proximately

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 who trusted him to transfer their 

life savings into his care. As 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 “substantial 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 to investors was entirely 

foreseeable, if not inevitable.

¶22 Thus, we conclude that the sentencing court properly 

determined that Randall’s conduct proximately caused the losses 

of the 156 investors.

II. Court-Ordered Restitution

¶23 Randall argues that the sentencing court erred in 

calculating court-ordered restitution identical 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. § 77-38a302(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 financial 

resources of the defendant,” (3) “the burden that payment of 
State 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 overturned 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).

¶24 The analysis on this issue requires us to determine 

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 section 77-38a-302(5)(a)–

(b), the court determined that Randall directly harmed the

victims when he took their life savings and left them 

with nothing. The court described one defrauded couple 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 considered Randall’s financial resources, 

acknowledging that restitution imposed a heavy burden on 

Randall. It noted that Randall was old, going to prison, and may 

never get out. Although the court found Randall’s circumstances

“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 court-ordered 

restitution at $10.2 million.
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20170836-CA 14 2019 UT App 120

¶25 Randall “essentially argues that because the courtordered 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 courtordered restitution. The Restitution Act requires only that the 

sentencing court “consider” the financial resources of a 

defendant in imposing restitution. See Utah Code Ann. § 77-38a302(5)(c). This statute in no way requires that Randall’s crimeinduced, self-inflicted financial straits be given dispositive effect 

in determining court-ordered restitution. The fact that Randall 

will most likely never pay the $10.2 million court-ordered 

restitution “does not, standing alone, demonstrate that the 

[sentencing] court failed to 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. Rehabilitation 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. 2019). Thus, “restitution is an effective rehabilitative 

penalty because it forces the defendant to confront, in concrete 

terms, the harm his actions have caused. . . . The direct relation 

between the harm and the punishment gives restitution a more 

precise deterrent effect than a traditional fine.” 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. This restitution order will make 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, even 
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20170836-CA 15 2019 UT App 120

to the end of his days. This approach acknowledges how 

devastating financial crimes like these are to the lives of so 

many.

¶26 We conclude that the sentencing court properly 

considered the statutory factors and did not abuse its discretion 

in imposing $10.2 million in court-ordered restitution.

CONCLUSION

¶27 The sentencing court correctly determined that Randall 

admitted in his plea agreement to defrauding 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 courtordered restitution at $10.2 million.

¶28 Affirmed.