USA v. Battista, No. 08-3750 (2d Cir. 2009)

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08-3750-cr USA v. Battista 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2008 (Argued: May 13, 2009 Decided: August 6, 2009) Docket No. 08-3750-cr U NITED S TATES OF A MERICA, Appellee, v. J AMES B ATTISTA, ALSO KNOWN AS B ABA, ALSO KNOWN AS S HEEP, Defendant-Appellant. Before: W ALKER, W ESLEY, W ALLACE, * Circuit Judges. Defendant-Appellant James Battista appeals from a judgment of the United States District Court for the Eastern District of New York (Amon, J.), entered on July 24, 2008, convicting him, after a guilty plea, of conspiracy to transmit wagering information in violation of 18 U.S.C. §§ 371, 1084. We hold that the district court acted within its discretion in ordering Battista to pay restitution to the * The Honorable J. Clifford Wallace, United States Court of Appeals for the Ninth Circuit, sitting by designation. 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 National Basketball Association under the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663. J ACK M CM AHON, Philadelphia, PA, for Appellant. J EFFREY G OLDBERG, Assistant United States Attorney (Jo Ann M. Navickas and Alexander A. Solomon, on the brief), for Benton J. Campbell, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee. W ESLEY, Circuit Judge: Defendant-Appellant James Battista appeals from a 20 judgment of the United States District Court for the Eastern 21 District of New York (Amon, J.), entered on July 24, 2008, 22 convicting him, after a guilty plea, of conspiracy to 23 transmit wagering information in violation of 18 U.S.C. §§ 24 371, 1084. 25 Martino, in the much-publicized National Basketball 26 Association ( NBA ) gambling scandal involving former 27 referee Timothy Donaghy. 28 three defendants, the NBA, and the United States on its 29 behalf, sought restitution. 30 that each defendant was required to pay restitution to the 31 NBA as a victim of their criminal offenses. Battista was a co-conspirator, along with Thomas Following guilty pleas by all The district court determined 2 Only Battista 1 challenges the imposition of restitution on appeal. 2 reasons that follow, we affirm the restitution order of the 3 district court. 4 5 For the FACTS Donaghy began his career as an NBA referee in September 6 1994 and continued in that position for thirteen seasons. 7 He first began placing bets on NBA games, including games he 8 officiated, during the 2003-04 season through his friend 9 Jack Concannon. The conspiracy at issue here, however, 10 began in December 2006 and continued until April 2007. 11 Donaghy provided picks on NBA games, again including games 12 he officiated, to co-conspirators Battista and Martino. 13 Battista agreed to pay Donaghy a fee for each game in which 14 Donaghy correctly picked the winner. 15 picks to Martino, Martino relayed the information to 16 Battista, and Battista placed the bets. 17 government, Donaghy and Martino devised a code for 18 communicating picks over the telephone using the names of 19 Martino s two brothers. 20 older brother, the pick would be the home team; if Donaghy 21 referred to Martino s younger brother, the pick would be the 22 visiting team. Donaghy provided the According to the If Donaghy mentioned Martino s In making his picks, Donaghy relied on, 3 1 among other things, nonpublic information to which he had 2 unique access by virtue of his position as an NBA referee. 3 This information included his knowledge of the officiating 4 crews for upcoming NBA games, the interactions between 5 certain referees, players and team personnel, and the 6 physical condition of players. 7 conspiracy, Martino met with Donaghy in several cities for 8 the primary purpose of paying Donaghy for his correct 9 predictions. 10 During the course of the After the government discovered the gambling scheme, 11 Donaghy agreed to cooperate with its investigation. 12 Thereafter, in August 2007, Donaghy pleaded guilty to 13 conspiracy to commit wire fraud in violation of 18 U.S.C. § 14 1343 and conspiracy to transmit wagering information in 15 violation of 18 U.S.C. § 1084. 16 and Martino were both charged with conspiracy to commit wire 17 fraud and conspiracy to transmit wagering information. 1 18 pertinent here, the indictment alleged that Martino and 19 Battista committed the following overt acts in furtherance 20 of the conspiracy to transmit wagering information: 21 22 In February 2008, Battista As a. On or about December 13, 2006, MARTINO spoke with the NBA referee [Donaghy] by telephone 1 Martino was also charged with two counts of perjury. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 (Indictment, ¶ 15). 16 guilty to the wire fraud conspiracy charge and Battista 17 pleaded guilty to the wagering conspiracy charge. 18 described his criminal conduct during his plea allocution: regarding the NBA referee s pick for an NBA game. b. On or about December 14, 2006, BATTISTA and MARTINO met with the NBA referee in Pennsylvania and gave a cash payment to the NBA referee. c. On or about December 26, 2006, MARTINO spoke with the NBA referee by telephone regarding the NBA referee s pick for an NBA game. d. On or about March 11, 2007, MARTINO met with the NBA referee in Toronto, Canada, and MARTINO gave a cash payment to the NBA referee. A few months later, Martino pleaded Battista 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Battista further admitted that he had met with Donaghy in 34 Pennsylvania for payment. 35 36 [F]rom December of 2006 to March 2007, I was engaged in the business of sports betting, and I agreed with Tom Martino and Tim Dona[ghy] to use the telephone across state lines to obtain information to assist me in wagering on sporting events, on NBA basketball games. I received information from Tom Martino, who received his information from the NBA referee Tim Dona[ghy]. This agreement was formed during a meeting between the three of us, in a hotel in December of 2006. During the course of this agreement from time to time I directed Mr. Martino to do certain things such as having meetings with Mr. Dona[ghy]. The NBA, and the United States on its behalf, sought restitution against all three defendants. 5 The NBA requested 1 restitution for (1) Donaghy s compensation for the portions 2 of the 2003-04, 2004-05, 2005-06, and 2006-07 seasons when 3 he officiated games in which he had a financial interest; 4 (2) that portion of the salaries of NBA employees attributed 5 to reviewing the tapes of the games Donaghy refereed; and 6 (3) attorneys fees incurred by the NBA in connection with 7 assisting the government in its investigation and 8 prosecution. 9 After a comprehensive and particularized discussion of 10 each restitution claim asserted by the NBA, the district 11 court ordered the defendants to pay restitution in the total 12 amount of $217,266.94, breaking down the portions owed by 13 (1) all the defendants jointly and severally, (2) Battista 14 and Martino jointly and severally, and (3) each defendant 15 individually. 16 411, 436-37 (E.D.N.Y. 2008). 17 Battista raises on appeal, the district court concluded that 18 the NBA was a victim of Battista s crime of conviction 19 conspiracy to transmit wagering information under either 20 the Mandatory Victims Restitution Act of 1996 ( MVRA ), 18 21 U.S.C. § 3663A, or the Victim and Witness Protection Act of 22 1982 ( VWPA ), 18 U.S.C. § 3663. See United States v. Donaghy, 570 F. Supp. 2d As relevant to the issues 6 The court determined that 1 Battista s crime was covered by the MVRA, which applies to 2 offense[s] committed by fraud or deceit, 18 U.S.C. § 3 3663A(c)(1)(A)(ii), concluding that the phrase committed 4 by fraud or deceit appears to refer to the way in which a 5 particular offense was carried out rather than its 6 elements. 7 court concluded that Battista was accountable for 8 restitution under the VWPA and rejected the argument that 9 his current unemployment and familial obligations foreclosed 10 570 F. Supp. 2d at 421. VWPA restitution. In the alternative, the Id. at 421-23. 11 Battista appeals the district court s restitution 12 order, arguing that: (1) the NBA was not a victim of the 13 offense to which he pleaded guilty under either the MVRA or 14 the VWPA; (2) his crime of conviction is not covered under 15 either restitution statute; (3) attorneys fees and 16 investigative costs incurred by the NBA are not recoverable; 17 and (4) his financial obligations were sufficiently 18 burdensome to exempt him from paying restitution under the 19 VWPA. 20 contentions and affirm the district court order. For the following reasons, we reject Battista s 7 DISCUSSION 2 1 2 The goal of restitution, in the criminal context, is 3 to restore a victim, to the extent money can do so, to the 4 position he occupied before sustaining injury. 5 States v. Boccagna, 450 F.3d 107, 115 (2d Cir. 2006). 6 the context of the MVRA, we have observed that the 7 statutory focus is on the victim s loss and upon making 8 victims whole. United States v. Coriaty, 300 F.3d 244, 253 9 (2d Cir. 2002). The procedures a sentencing court must United In 10 follow in determining whether, and to what extent, to order 11 restitution pursuant to the MVRA or the VWPA are set forth 12 in 18 U.S.C. §§ 3663(d), 3663A(d), 3664. 13 v. Reifler, 446 F.3d 65, 113 (2d Cir. 2006). 14 I. 15 See United States MVRA or VWPA? Under the MVRA, restitution is mandatory for certain 16 crimes, such as an offense against property under this 17 title . . . including any offense committed by fraud or 18 deceit. 18 U.S.C. § 3663A(c)(1)(A)(ii). 2 A district court We review a district court s order of restitution for abuse of discretion. United States v. Ojeikere, 545 F.3d 220, 222 (2d Cir. 2008). Our standard of review is de novo for the district court s legal conclusions, whereas we review findings of fact for clear error. United States v. Amato, 540 F.3d 153, 158 (2d Cir. 2008). 8 1 must order restitution where an identifiable victim or 2 victims has suffered a . . . pecuniary loss. 3 3663A(c)(1)(B). 4 restitution under the VWPA is discretionary. 5 provides that [t]he court, when sentencing a defendant 6 convicted of [any] offense under this title . . ., may order 7 . . . that the defendant make restitution to any victim of 8 such offense. 9 The VWPA requires sentencing courts to consider the amount Id. § In contrast to the MVRA, however, The VWPA 18 U.S.C. § 3663(a)(1)(A) (emphasis added). 10 of the loss sustained by the victim as a result of the 11 offense, the defendant s financial resources, the financial 12 needs and earning ability of the defendant and the 13 defendant s dependents, and other factors the court deems 14 appropriate. 15 States v. Ben Zvi, 242 F.3d 89, 99 (2d Cir. 2001). 16 the district court must review these statutory factors, 17 detailed factual findings for each factor are not required. 18 See United States v. Stevens, 211 F.3d 1, 6 (2d Cir. 2000). 19 Aside from the aforementioned differences, the provisions 20 of the VWPA and the MVRA are nearly identical in authorizing 21 an award of restitution. 22 F.3d 1112, 1118 (10th Cir. 2007) (internal quotation marks See id. § 3663(a)(1)(B)(i)(I-II); United While United States v. Serawop, 505 9 1 and alteration omitted). 2 In this case, the district court determined that 3 Battista s offense of conviction conspiracy to transmit 4 wagering information was covered under the MVRA, reasoning 5 that the phrase committed by fraud or deceit appears to 6 refer to the way in which a particular offense was carried 7 out rather than its elements. 8 Although Battista s criminal offense (unlike the other co- 9 conspirators offenses of conviction, i.e., wire fraud) does 570 F. Supp. 2d at 421. 10 not contain fraud or deceit as one of its elements, the 11 government argues that the crime nevertheless falls within 12 the scope of the MVRA because it was executed in a 13 fraudulent manner. 14 that the conduct underlying the wagering conviction was 15 Battista s dealings with Donaghy and Martino as part of a 16 scheme to defraud the NBA of Donaghy s honest services by 17 using NBA insider information to place wagers on NBA games. 18 The district court generally agreed, observing that the 19 success of Battista s wagering was dependent on Donaghy s 20 fraudulent conduct. 21 government points to statements made by Battista during his 22 plea allocution and the factual allegations set forth in the Specifically, the government contends Id. In support of its position, the 10 1 indictment, asserting that they demonstrate that Battista s 2 transmittal of wagering information was intertwined with the 3 fraudulent gambling scheme. 4 Donaghy and Martino, never disputed before the district 5 court the applicability of the MVRA to the offense for which 6 they pleaded guilty conspiracy to commit wire fraud 7 because that offense must, by definition, be committed by 8 fraud or deceit. 9 Battista s co-conspirators, We need not decide whether the district court properly 10 ordered Battista to pay restitution under the MVRA which 11 would require us to answer the open question of whether the 12 language committed by fraud or deceit in Section 13 3663A(c)(1)(A)(ii) refers to the elements of an offense or 14 the manner in which the defendant commits the offense 15 because we hold that restitution was properly imposed 16 pursuant to the VWPA. 3 17 Murillo-Bejerano (In re Rendon Galvis), 564 F.3d 170, 175 18 (2d Cir. 2009) (declining to decide whether the term crime 19 victim under the Crime Victims Rights Act, 18 U.S.C. § Cf. United States v. 3 The MVRA and VWPA do not overlap. Rather, the MVRA makes restitution mandatory for the crimes it covers, and the VWPA enables discretionary restitution for non-MVRA crimes. See 18 U.S.C. § 3663(a)(1)(A)(excluding from the VWPA offense[s] described in section 3663A(c) ). 11 1 3771, should be defined according to the elements of the 2 crime or offense of conviction). 3 district court s analysis of the statutory factors set forth 4 in the VWPA, however, we must first determine whether the 5 NBA is a victim of Battista s offense of conviction under 6 the VWPA. 7 II. 8 Before turning to the Is the NBA a Victim ? The VWPA defines victim as 9 10 11 12 13 14 15 16 17 18 18 U.S.C. § 3663(a)(2); accord id. § 3663A(a)(2). 4 19 the definition of victim is certainly broad, in determining 20 whether one qualifies as a victim, a sentencing court can 21 only consider the offense or offenses for which the 22 defendant was convicted. 23 U.S. 411, 413 (1990); United States v. Metal Lathers Local a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant s criminal conduct in the course of the scheme, conspiracy, or pattern. Although See Hughey v. United States, 495 4 The Crime Victims' Rights Act, 18 U.S.C. § 3771, contains a similar definition. That statute defines the term crime victim as a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. 18 U.S.C. § 3771(e). 12 1 46 Pension Fund (In re Local # 46 Metallic Lathers Union), 2 568 F.3d 81, 86 (2d Cir. 2009). 3 ordered only for the loss caused by the specific conduct 4 that is the basis of the offense of conviction. 5 495 U.S. at 413. 6 underlying the offense of conviction establishes the outer 7 limits of a restitution order. 8 9 Thus, restitution may be Hughey, [T]he loss caused by the conduct Id. at 420. On the facts presented in this case, we conclude that the NBA was directly and proximately harmed by Battista 10 committing the crime of conspiracy to transmit wagering 11 information. 12 explained, [o]ne of the key features of this conspiracy was 13 that Donaghy was able to gain a wagering advantage for 14 Battista by using confidential information belonging to the 15 NBA in the course of providing him with picks on games he 16 refereed. 17 not defraud the NBA directly, we conclude that the district 18 court properly characterized the NBA as a victim under the 19 VWPA because the NBA was harmed by the conduct committed 20 during the course of the conspiracy to transmit wagering 21 information, e.g., Battista s use of nonpublic information 22 solely belonging to the NBA (conveyed to him by the co- 18 U.S.C. § 3663(a)(2). 570 F. Supp. 2d at 420. 13 As the district court Although Battista did 1 conspirators) to place illegal wagers on its games. 2 Moreover, we must look at Battista s offense of 3 conspiracy, in which his criminal conduct encompasses not 4 just his own acts but also those of his co-conspirators. 5 See United States v. Boyd, 222 F.3d 47, 50-51 (2d Cir. 2000) 6 (per curiam). 7 harmed the NBA. 8 III. 9 By this standard, Battista s crime plainly The District Court s VWPA Analysis We find no error in the district court s analysis of 10 the statutory factors set forth in the VWPA. 11 district court abuse its discretion in rejecting Battista s 12 argument that VWPA restitution was improper because he is 13 financially unable to make payments due to his current 14 unemployment and that he has five minor children. 15 previously indicated that [a] defendant s limited financial 16 resources at the time restitution is imposed is not 17 dispositive of whether restitution is proper, particularly 18 where the defendant has a reasonable potential for future 19 earnings. 20 also United States v. Mortimer, 52 F.3d 429, 436 (2d Cir. 21 1995) ( Even an indigent defendant may be subject to the 22 duty to pay restitution when and if funds are eventually Nor did the We have Ben Zvi, 242 F.3d at 100 (citation omitted); see 14 1 acquired. ). 2 Here, the district court found that Battista possessed 3 assets totaling $676,300. 4 court further noted that Battista s sole liability was the 5 $120,000 balance on his mortgage. 6 following additional facts about Battista s financial 7 status: 570 F. Supp. 2d at 422. Id. The The court found the 8 9 10 11 12 13 14 15 16 17 18 19 Id. 20 findings on appeal, nor have we identified any basis for 21 questioning them. 22 well within its discretion in determining that Battista has 23 a reasonable potential for future income and that he 24 should have sufficient resources to contribute to the 25 payment of restitution to the NBA. 26 His household s monthly income is $1,800, which is the sum of his wife s salary and assistance from other family. His household s monthly expenses total $4,830, resulting in a monthly negative cash flow of $3,030. Currently, Battista stays home with his three children while his wife works. His wife has indicated that Battista has expressed interest in opening a catering business, and his presentence report reflects that he has previous experience in the restaurant business. Battista does not challenge any of these factual In our view, the district court acted Id. We further note that, in addition to the enumerated 27 factors identified in Section 3663(a)(1)(B)(i), sentencing 28 courts may also consider such other factors as the court 15 1 deems appropriate. 18 U.S.C. § 3663(a)(1)(B)(i)(II). 2 district court took note of its desire to accord equal 3 treatment to similarly situated defendants. 4 Supp. 2d at 422-23. 5 this case, two co-conspirators pled guilty to a crime 6 clearly subject to mandatory restitution, and another co- 7 conspirator (Battista), equally blameworthy in the eyes of 8 the district court, pled guilty to a crime involving the 9 same underlying criminal conduct that is not as obviously The See 570 F. Under the circumstances presented in 10 subject to mandatory restitution but plainly subject to 11 discretionary restitution in the alternative. 12 it was entirely proper for the district court which 13 concluded that the VWPA applied to Battista in the 14 alternative to recognize equal treatment as a factor 15 supporting the imposition of restitution under that statute. 16 IV. 17 In our view, Attorneys Fees Lastly, Battista argues that attorneys fees incurred 18 by the NBA are not recoverable under either restitution 19 statute. 5 Along with permitting restitution for, among 5 Battista does not specifically challenge the other categories of restitution that the district court applied to him: (1) the amount of compensation paid to Donaghy for the games he refereed during the 2006-07 season in which he provided picks to Battista and Martino ($67,343.92), see 570 16 1 other things, property loss and healthcare expenses, the 2 VWPA allows a victim to recover lost income and necessary 3 child care, transportation, and other expenses related to 4 participation in the investigation or prosecution of the 5 offense or attendance at proceedings related to the 6 offense. 18 U.S.C. § 3663(b)(4) (emphasis added); accord 18 7 U.S.C. § 3663A(b)(4). 8 We recently addressed the scope of the term other 9 expenses under the MVRA, 18 U.S.C. § 3663A(b)(4), in United 10 States v. Amato, 540 F.3d 153, 159-63 (2d Cir. 2008), where 11 we affirmed a restitution order in the amount of $12.8 12 million to the corporate victim of mail and wire fraud. 13 Amato, we held that other expenses incurred during the 14 victim s participation in the investigation or prosecution 15 of the offense or attendance at proceedings related to the 16 offense may include attorney fees and accounting costs. 17 Id. at 159. 18 term other expenses excluded attorneys fees and In We rejected the defendants contention that the F. Supp. 2d at 424-30 (apportioned jointly and severally across all defendants); and (2) the amount representing the time NBA employees spent reviewing tapes of games that Donaghy refereed at the government's request ($9,930.02), also apportioned jointly and severally among all three defendants, see 570 F. Supp. 2d at 436-37. 17 1 accounting costs as a matter of law, noting that [o]ur 2 conclusion follows from the plain language of the statute. 3 Id. at 160. 4 3663A(b)(4) of the MVRA gives the district courts broad 5 authority to determine which of the victim s expenses may be 6 appropriately included in a restitution order. 7 further elaborated on the statutory requirements, stating 8 that: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 We observed that the language in Section Id. We The statute requires that the included expenses be necessary, and that they be incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. 18 U.S.C. § 3663A(b)(4). It also requires . . . that these expenses be incurred by a victim within the meaning of 18 U.S.C. § 3663A(a)(2) and that they not require unduly complicated determinations of fact, see 18 U.S.C. § 3663A(c)(3). The statute does not otherwise limit the type of expenses that may be included. Id. 6 6 Among other arguments raised by the Amato defendants that we rejected was one asserting that attorneys fees and accounting costs could not be considered other expenses because they were merely indirect or consequential damages. Id. at 162. We declined to follow several decisions from our sister circuits holding that attorneys fees could not be included in restitution orders. See United States v. Radziszewski, 474 F.3d 480, 487 n.3 (7th Cir. 2007); Gov t of Virgin Islands v. Davis, 43 F.3d 41, 46 (3d Cir. 1994); United States v. Mullins, 971 F.2d 1138, 1146-47 (4th Cir. 1992); United States v. Arvanitis, 902 F.2d 489, 497 (7th Cir. 1990). The latter three cases were decided under 18 18 1 We conclude that the holding in Amato concededly 2 decided in the MVRA context applies to the almost verbatim 3 statutory language in the VWPA. 7 4 court did not err in awarding the NBA attorneys fees 5 incurred as a result of the assistance it provided to the 6 government in its investigation and prosecution of 7 Battista s criminal offense. 8 in support of our conclusion that attorneys fees were 9 recoverable as other expenses under the MVRA applies with Accordingly, the district The rationale that we provided 10 equal force to the VWPA. 11 Moreover, when two sections share the same purpose, the 12 parallel provisions can, as a matter of general statutory 13 construction, be interpreted to be in pari materia. See Amato, 540 F.3d at 159-162. United U.S.C. § 3663(b)(1), prior to the enactment of the provision at issue in this case, 18 U.S.C. § 3663(b)(4). See Amato, 540 F.3d at 161; see also id. at 159 (noting that Congress added 18 U.S.C. § 3663(b)(4) in 1994). Moreover, to the extent that the Seventh Circuit in Radziszewski reached a contrary result while interpreting the parallel subsection under the MVRA, 18 U.S.C. § 3663A(b)(4), we expressly declined to follow that holding. See id at 161. 7 Instead of using the phrase other expenses related to participation, 18 U.S.C. § 3663(b)(4) (emphasis added), the MVRA states other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense. 18 U.S.C. § 3663A(b)(4) (emphasis added). In all other respects, the statutory provisions are identical. 19 1 States v. Carr, 880 F.2d 1550, 1553 (2d Cir. 1989). 2 we have often interpreted the MVRA and VWPA in concert. 3 See, e.g., United States v. Ekanem, 383 F.3d 40, 43-44 (2d 4 Cir. 2004). 5 Indeed, Here, the NBA incurred substantial attorneys fees as a 6 direct result of Battista s criminal acts. 7 court meticulously parsed out the fees and costs submitted 8 by the NBA in determining which expenses were associated 9 with each defendant and whether they were incurred while The district 10 assisting the government in ascertaining the extent of the 11 criminal conspiracy and in preparing for Battista s criminal 12 proceedings. 13 restitution for attorneys fees not directly related to the 14 assistance the NBA provided to the government in its 15 investigation and prosecution of the criminal offenses 16 committed by the defendants. 17 defendants that attorneys fees associated with counseling 18 the NBA on its public response to Donaghy s guilty plea were 19 not recoverable as an investigation cost pursuant to 18 20 U.S.C. §§ 3663(b)(4), 3663A(b)(4). 21 432. 22 reputation of the NBA and had the potential to impugn the Notably, the district court rejected The court agreed with the See 570 F. Supp. 2d at Indeed, this gambling scandal undoubtedly damaged the 20 1 integrity of other referees in the league. 8 2 conspiracy has called into question the legitimacy of the 3 outcomes of the many games Donaghy refereed. 4 in contrast to the attorneys fees discussed above and 5 authorized by the district court, such damages, while 6 certainly significant, were not associated with assisting 7 the government in the investigation and prosecution of the 8 defendants criminal offenses, and thus, are not compensable 9 under 18 U.S.C. § 3663(b)(4). 10 11 12 Moreover, the Nevertheless, CONCLUSION Accordingly, for the reasons set forth above, the judgment of the district court is hereby AFFIRMED. 8 Donaghy s attorney alleged widespread game manipulation and criminal activity amongst NBA referees. See Howard Beck, Donaghy Cites Broad Misconduct in N.B.A., N.Y. Times, June 11, 2008, available at http://www.nytimes.com/2008/06/11/sports/basketball/11refs.h tml. In addition, a referee friend of Donaghy was accused of wrongdoing in the media. See Howard Beck, N.B.A. Referee Speaks as Gambling Cloud Passes, N.Y. Times, Nov. 4, 2008, at B14, available at http://www.nytimes.com/2008/11/05/ sports/basketball/05referee.html. 21

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