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United States v. Rodgers

United States District Court, E.D. Kentucky, Central Division, Frankfort

August 29, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
RONNIE C. RODGERS, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge

         The Government has requested restitution for well over a hundred victims of Defendant Ronnie C. Rodgers's conspiracy to commit securities fraud. These requests include varying degrees of evidentiary support for the loss amounts. While the Court need not determine restitution by finding facts beyond a reasonable doubt, the Court must determine a loss amount by a preponderance of the evidence. Because some of these requests are supported by sufficient evidence while others are not, the Court GRANTS IN PART and DENIES IN PART the Government's Motion for Restitution. Mr. Rodgers is ordered to pay restitution in the combined amount of $2, 180.562.17, as further outlined below.

         I

         A

         Mr. Ronnie Rodgers was charged on December 7, 2017 with one count conspiracy to commit mail fraud, wire fraud, and securities fraud in violation of 18 U.S.C. §§ 1341 and 1343, 15 U.S.C. § 78j(b), and 17 C.F.R. § 240-10b-5. [R. 1.] According to the indictment, from 2007 through 2017, Mr. Rodgers and his associates executed a scheme to sell oil and gas leases in geographical areas where Mr. Rodgers knew the leases would not produce enough oil or gas to provide a return of the investments. See id.

         The jury returned a guilty verdict for conspiracy to commit mail fraud, wire fraud, and securities fraud. [R. 64.] To convict Mr. Rodgers with mail or wire fraud, the jury was required to find the development of or participation in a scheme to defraud, that he used the mails or an interstate wire communication in furtherance of the scheme, and that he possessed “intent to deprive a victim of money or property.” United States v. Ramer, 883 F.3d 659, 681 (6th Cir. 2018) (enumerating the elements of mail fraud); United States v. Olive, 804 F.3d 747, 753 (6th Cir. 2015) (enumerating the elements of wire fraud and noting, “Mail fraud has essentially the same elements [as wire fraud] except that the use of the mails rather than a wire is required.”). For the jury to convict Mr. Rodgers of securities fraud, the jury had to find that he used or employed a manipulative or deceptive device in contravention of 17 C.F.R. § 240-10b-5 in connection with the purchase or sale of a security. 15 U.S.C. § 78j(b). Accordingly, the jury had to determine that Mr. Rodgers (1) employed a device, scheme, or artifice to defraud, (2) made any untrue statement or omission of a material fact, or (3) engaged in an act, practice, or course of business, operating as a fraud or deceit. 17 C.F.R. § 240-10b-5. However, Mr. Rodgers was charged with conspiracy to one of these things, and thus, the jury only need to find that Mr. Rodgers joined in an agreement to commit mail, wire, or securities fraud, and that at least one person in the conspiracy committed an overt act in support of the conspiracy. United States v. Phillips, 872 F.3d 803, 806 (6th Cir. 2017).

         This Court sentenced Mr. Rodgers on January 9, 2019, to forty-eight months imprisonment, followed by three years of supervised release. [R. 88; R. 90.] Restitution was ordered, but a specific calculation of restitution was deferred pending briefing by both parties.[1]Id. The United States filed a motion for an award of restitution in the total amount of $6, 874, 766.01, on January 25, 2019, which included only a spreadsheet of the victims' alleged loss amounts and lacked any evidence to support those requests. [R. 97.] Mr. Rodgers made objections to a general award of restitution but made no specific objections to requests by each victim. [R. 101.] At a hearing held on February 20, 2019, the Court determined more evidence was needed to award restitution and directed further briefing. [R. 103; R. 104.] The United States has filed their supplementation under seal [R. 116], and Mr. Rodgers has made his objections [R. 119.]

         B

         Restitution in this case is mandatory. The Mandatory Victims Restitution Act (MVRA) requires Courts to order restitution when sentencing defendants convicted of certain offenses. 18 U.S.C. § 3663A(a)(1). Included in these offenses are crimes against property, including crimes involving fraud and deceit. § 3663A(c)(1)(A)(ii). When a defendant is convicted of a conspiracy, a Court may calculate restitution using “damage resulting from any conduct that was part of the conspiracy and not just from specific conduct that met the overt act requirement of the conspiracy conviction.” United States v. Sawyer, 825 F.3d 287, 295 (6th Cir. 2016) (citations and quotations omitted). Furthermore, if more than one defendant contributed to a victim's losses, the Court is permitted to make each defendant liable for the full amount or restitution or may choose to apportion restitution accordingly. 18 U.S.C. § 3664(h). The Government bears the burden of proof to demonstrate the amount of loss sustained by a victim, and disputes must be resolved by the Court under a preponderance of the evidence standard. § 3664(e). In this specific matter, it is also important to note that restitution is calculated based on the full amount of a victim's losses, not Mr. Rodgers's gain. § 3664(f)(1)(A).

         A victim's losses must only be demonstrated by a preponderance of the evidence. §3664(e). The “preponderance of the evidence” standard requires a trier of fact, in this case, the Court, to find “the existence of a fact is more probable than its nonexistence.” Concrete Pipe and Prods. of Cal., Inc. v. Construction Laborers Pension Tr. for S. Cal., 508 U.S. 602, 622 (1993) (quoting In re Winship, 397 U.S. 358, 371-72 (1970)). Because the burden here rests on the Government, the Government must persuade the Court of the existence of their proposed facts. Id.

         To do so initially, the Government provided spreadsheet exhibits, summarizing victims' claims for restitution, but without providing the evidence upon which the spreadsheets were constructed. [R. 97.] Additional submissions prior to the February 20, 2019, hearing included sworn affidavits submitted to the United States Probation Office (USPO). Some, but not all, of these affidavits included itemized lists of expenses or photocopies of checks written to Mr. Rodgers's companies. Some victims submitted only letters to the USPO or to the Government directly without sworn affidavits. The varying degree of reliability of this evidence gives the Court pause, and so, before reviewing the supplementary evidence and objections provided by the parties, the Court first establishes a framework by which to weigh each victims' request for restitution.

         Evidence “underlying an award must have sufficient indicia of reliability to support its probable accuracy.” United States v. Sawyer, 825 F.3d 287, 294-95 (6th Cir. 2016) (citations and quotations omitted). The Court must make adequate factual findings when the calculated loss amount is disputed. United States v. Sexton, 894 F.3d 787, 801 (6th Cir. 2018). But the Circuit Courts generally leave evidentiary determinations, and which evidence provides an indicium of reliability, up to the District Courts, so long as the District Court explains its reasons.

         If Mr. Rodgers had been indicted on specific counts of fraud, the jury would have had the opportunity to consider each victim's allegations and either accept or deny the evidence behind those allegations beyond a reasonable doubt. However, this does not mean that Mr. Rodgers cannot be held responsible for those losses. In Apprendi v. New Jersey, the Supreme Court found, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). However, because restitution statutes do not specify a statutory maximum amount, the Sixth Circuit has held that restitution claims need not be submitted to a jury. United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005). In this matter, restitution requests must demonstrate by a preponderance of the evidence, that the victim's losses result from conduct in furtherance of the convicted conspiracy, not just conduct from the over acts required for a conspiracy conviction. United States v. Sawyer, 825 F.3d 287, 295 (6th Cir. 2016).

         The Court first finds that a summary spreadsheet, without additional evidence, is insufficient to meet the preponderance of the evidence standard. In the Sixth Circuit, “a summary chart, when supported by additional evidence, can be used by the government to establish losses for the purposes of restitution.” United States v. Carmichael, 676 Fed.Appx. 402, 412 (6th Cir. 1017) (citing United States v. Sawyer, 825 F.3d 287, 296 (6th Cir. 2016). In Carmichael, the Sixth Circuit found the trial court did not abuse its discretion when considering the summary chart along with additional, supporting evidence. Id. at 413. The trial court also reviewed testimony on how the chart was prepared, the investigatory efforts in collecting the data, the ledger, and the victim-impact statements. Id. Other circuits agree. United States v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008) (holding that the district court erred by basing an award of restitution on one-page summaries without requiring detailed explanations of the losses suffered); United States v. Hartstien, 500 F.3d 790, 796 (8th Cir. 2007) (“Summary tables of accounting data that are based on evidence not before the court, and that a party has challenged as inaccurate, are not sufficient to support a court's factual findings.”); United States v. Menza, 137 F.3d 533, 539 (7th Cir. 1998) (“the government must provide the district court with more than just the general invoices . . .. The government must provide sufficient explanations (supported by evidence reflected in the record) as to how these invoiced losses directly relate to [the defendant's] criminal conduct involved in his underlying convictions.”). Therefore, summary requests, such as those included in a spreadsheet, without detailed explanations of specific losses, are insufficient to award restitution.

         But what rises to the level of such detailed explanation? Undoubtedly, each request will require individual determinations of reliability, particularly when a defendant can provide evidence contrary to a victim's statement. Even without objections by a defendant, however, the victim's request must still include “sufficient indicia of reliability.” United States v. Sawyer, 825 F.3d 287, 294-95 (6th Cir. 2016). Because the Sixth Circuit generally upholds a district court's restitution award so long as it is within “the universe of acceptable computations, ” and because the Court “has wide latitude to determine the amount of a victim's losses, ” the Court takes this opportunity to outline what uncontested evidence would include such reliability sufficient to support an award of restitution. United States v. Sawyer, 825 F.3d 287, 295 (6th Cir. 2016); United States v. Patel, 711 Fed.Appx. 283, 287 (6th Cir. 2017).

         First, a victim's testimony at trial could support an award of restitution. Trial testimony occurs under penalty of perjury, and opposing counsel has the opportunity to cross examine the witness. The combination of direct questioning by the Government and cross examination by the defendant would give the Court sufficient information to determine whether or not a victim's statements are reliable. Evidence admitted at trial to accompany a victim's testimony is similarly subject to scrutiny by the defendant because this too gives the opportunity for a defendant to object to consideration of that evidence.

         The more difficult question arises when a victim did not testify, was not subject to cross examination, but has submitted a statement to the Government, the USPO, or the Court requesting a specific award of restitution. While those statements may be sworn affidavits, the Court determines that statements by a victim, without additional documentation of loss amount, do not include sufficient indicia of reliability. See, e.g., United States v. Steele, 897 F.3d 606, 613 (4th Cir. 2018) (finding a victim's unsupported loss estimate, without additional evidence, insufficient to satisfy the Government's burden of proof); United States v. Charles, 895 F.3d 560, 566 (8th Cir. 2018) (finding mere statements, without other documentation, do not support a Government's claim by a preponderance of the evidence); United States v. Baker, 584 Fed.Appx. 469, 471-72 (9th Cir. 2014) (finding the district court properly discredited evidence which did not clearly specify victim's losses or clearly specify how such losses were caused by the defendant's criminal conduct); United States v. Simmons, 544 Fed.Appx. 21, 24 (2d Cir. 2013) (finding the court abused its discretion by awarding restitution based on nothing more than an unsworn letter by a victim when the Government provided “almost no information about the loss amount, no documentation regarding [the victim's] loss, and no explanation as to why procuring details or documentation was impracticable”). But see United States v. Dial, 705 Fed.Appx. 250, 255-56 (5th Cir. 2017) (finding the district court was permitted to rely solely on victim impact statements unless the defendant presented rebuttal evidence); United States v. Lopez, 503 Fed.Appx. 147, 150 (3d Cir. 2012) (upholding an award of restitution based only on a Government-prepared spreadsheet of losses and a sworn statement by the victim).

         While a conclusory statement by a victim suggests a loss, such statement does not provide sufficient evidence to determine the amount of loss or whether such loss was proximately caused by the victim. Bank records, copies of checks, invoices, deposit slips, etc. all demonstrate a presumably reliable record of financial loss to which a defendant may make specific objections. If the Government submits only a victim's statement of a total loss amount, a defendant would be forced to locate those same records in order to rebut the Government's request. But determination of restitution is not a burden shifting framework and requiring this of the defendant improperly shifts the burden from the Government to demonstrate loss amount to the defendant to disprove loss amount. A detailed sworn statement, however, outlining the total loss amount and how that loss amount was calculated, may be sufficient if the calculation is consistent with the testimony offered at trial.

         Accordingly, the Court finds that mere conclusory statements, whether sworn or unsworn, are also insufficient to establish reliability sufficient to support an award of restitution. For this Court to find the required indicia of reliability, the Government must provide evidence other than a victim's stated loss amount to establish loss and the amount of that loss. In this case, copies of checks written to Mr. Rodgers and/or his affiliated companies, bank records showing transfers of money, invoices by Mr. Rodgers and/or his affiliated companies, and other related documents would indicate reliability to the Court. Furthermore, the Court will consider detailed affidavits that include calculations of loss consistent with testimony offered at trial to be reliable. The Court further notes that this list is not exclusive.

         II

         Having outlined this framework, the Court now considers the restitution requests by the Government and the objections made by Mr. Rodgers. The Government has submitted a spreadsheet outlining their requests, plus a disk with a large number of documents to support these requests, but no specific argument as to how they calculate their requests. [R. 116.] Because of this, the Court has not placed much emphasis on the exact dollar amount requested by the United States, instead reviewing the trial testimony, trial exhibits, and documents submitted on that disk to determine the award amount for restitution. Relatedly, Mr. Rodgers has not made specific objections to the amounts requested or identified payments that should not be counted for the purposes of restitution. Instead, he has continued to make general objections to the awards of restitutions, stating that these victims “did not provide any evidence that Ronnie Rodgers was the direct cause of the alleged loss.” [See R. 119.]

         A

         To begin, the United States has made numerous requests based on checks obtained from the Department of Financial Institutions, but which do not include a statement, sworn or unsworn, from the victim. [See R. 116.] These requests are insufficient to determine an amount of loss for restitution purposes: while the Court can clearly see that the alleged victim paid Mr. Rodgers and/or Rick-Rod Oil, the Court is unable to determine if this is the actual amount of loss. Testimony at trial suggested that many investors received at least some amount in royalties or other returns, though that amount varied wildly among investors. [See, e.g., R. 107 at 170, 221; R. 108 at 12, 31, 45, 59, 61, 93-94, 119, 127, 131, 182; R. 109 at 35-36, 118-119; R. 112 at 67.] Thus, absent any evidence that these victims received any of this money back, the Court is unable to even guess the amount of loss by these victims, much less determine by a preponderance of evidence. For these victims, the United States has failed to meet its burden. 18 U.S.C. § 3664(e).

         Having determined this, absent additional documentation, the restitution requests on behalf of Louis and Judith Arruda, Ibrahim and Dima Ayoub, B&K's Lawn Care Inc., Greg Barber, Jim Bedell, Ronnie Belk, Paul Brooks, Junior Brown, Ed Bascum Grider, Kimberly Cacciaguida, Keooudom Chianthong, Cuppy's Coffee, Bobby Green and Barbara Curry, Michael Darby, Sal and Elena DeRosa, Marvin Ezray, Global Moulding Inc., Gold Run Trading LLC, Mike Gould, Dennis Griffin, Lance Harrison, Mike and Wanda Hatcher, Dianne Heleno, Suzanne Heleno, Murray Helmers, Larry Henderson, David Hughes, Johnny and Carole Ireland, John Jarvis, [2] Norman and Vicki Kent, Kevin Kessler, Richard Kittay, Marketing Comm Inc., [3]Edward and Mary McCaffrey, Rex McCarter, Edward Mendel, Nancy Mendel, [4] Michael Minchino, [5] Joan and William Naylor, Tom and Angela Newslow, Tony Norris, Kevin O'Connor, Ralph Pantony, Richard and Carol Quint, Ramsey Investment Group, Roger and Melissa Richard, Michael and Robin Richardson, Bobby Simmons, Sammy and Margaret Taylor, Texas Holsteins Inc., Timberwood Development Corp., Robert and Mildred Vaughn, Condy and Betty Young, Connie and Mark Young, Troy Young, and Richard Zimmerman are DENIED.

         B

         The Government has also made restitution requests for various victims who testified at trial. [See R. 116.] As stated previously, this testimony occurred under penalty of perjury, with opportunity for opposing counsel to cross examine the victim. Because of this, this trial testimony gives the Court sufficient information to determine the amount of restitution owed by a preponderance of the evidence.

         Pamela Freeman testified at trial that she and her late husband, Keith, invested in Mr. Rodgers's company. [R. 69 at 5.] She stated at trial that she and her husband invested a total of $60, 000, and two contracts showing two investments of $30, 000 each were also introduced. Id. at 13-19. The United States has requested $70, 000 in restitution to Ms. Freeman, however, the testimony and evidence provided support that she only invested $60, 000. [Compare R. 116-1 at 1 with R. 69 at 13-19.] Additionally, at trial, Ms. Freeman indicated that they “received a $400 check from Mr. Rodgers on one of our visits . . . and he gave us a good faith check for $400.” [R. 69 at 18.] Thus, the Court finds that Ms. Freeman's loss is $59, 200: the $60, 000 of her investment less the two checks she received from Mr. Rodgers.

         Avner Elizarov submitted an affidavit to the United States Probation Office requesting restitution of $620, 000.[6] The Government has asked for $330, 000. [R. 116-1 at 1.] Mr. Elizarov lists his losses as $330, 000 for two leases, $38, 000 in fees paid to Mr. Rodgers and associates for improvement on the leases, $4, 200 to close two wells because of environmental issues, $2, 000 in travel fees, $19, 800 for interest return promised by Mr. Rodgers, and $216, 000 in lost opportunities and emotional stress. Restitution can only be awarded for actual losses, not lost opportunities, and therefore the requests for $237, 800 in travel, lost interest, lost opportunity, and emotional distress are not permitted here. At trial, Mr. Elizarov testified that he invested $330, 000 up front: $130, 000 to purchase a property and $200, 000 to lease a well. [R. 70 at 23- 27.] He also indicated he still owned the property. Id. at 24. True, Mr. Elizarov likely purchased the property at a higher rate in anticipation of oil, however, no one has offered any information on the value of the property and how much more Mr. Elizarov paid over that actual value. Because Mr. Elizarov still owns the property, the entire $130, 000 cannot be considered a loss. The Court has insufficient information as to its value; thus, the Court does not have enough evidence to calculate how much Mr. Elizarov lost on the property and disallows restitution relating to its purchase. He further testified at trial to paying $1, 554 in fees, but also indicated he “lost more money” than that, but he never elaborated on exactly how much more. Because he sufficiently outlined these expenses in his sworn statement, however, the Court will permit the full $38, 000 in fees, plus the $4, 200 to close the wells. This amount, plus the $200, 000 paid for the oil lease brings the total amount of investment for purposes of restitution to $242, 200. Finally, at trial, Mr. Elizarov also testified that he received up to $7, 000 in royalties [R. 70 at 4- 5], bringing his total loss to $235, 200.

         The request from Andrew Linley is less complicated. The United States requests $650, 000. He testified at trial that he invested $650, 000 with Mr. Rodgers, but he received nothing in return. [R. 72 at 4-5.] Since this amount was subject to cross-examination, and the Government at trial introduced the $650, 000 wire transfer from Mr. Linley to the escrow account [Gov. Exh. 28B], the Court calculates Mr. Linley's loss to be $650, 000.

         Similarly, Herb Steffen testified that he and his wife, Georgia, invested $30, 000 with Mr. Rodgers [R. 73 at 4] but received nothing in return [R. 73 at 11-12]. The Government introduced as evidence the contract signed by Mr. Steffen, Ms. Steffen, and Mr. Rodgers outlining that investment. [Gov. Exh. 26A.] Therefore, the Court calculates the loss of Herb and Georgia Steffen to be $30, 000.

         Eldridge Montgomery also testified that he invested with Mr. Rodgers. Specifically, the Government produced a check from Mr. Montgomery for $25, 000 [Gov. Exh. 2C] and for $3, 300 [Gov. Exh. 2G] for a total investment of $28, 300 [R. 107 at 110]. Additionally, he testified that he never received anything from his investment. [R. 107 at 118, 128-29.] The Court finds his loss to be $28, 300.

         Next, Lillian Tharpe testified that she invested “about $143, 000.” [R. 107 at 147-48.] Exhibits supported several payments totaling $117, 250 (though the Government's restitution request rounds this to $120, 000). Id. at 147-62. Ms. Tharpe also testified that she received around $15, 000, though she does not know the exact amount of her return on investment. Id. at 158. Because Ms. Tharpe was unsure of exact amounts, the Court finds that the exhibits introduced support that she invested a total of $117, 250, and that she received up to $15, 000 back, making her total loss for the purposes of restitution to be $102, 250.

         Jory Drager invested $30, 000 to Rick-Rod Oil. [R. 107 at 183-84.] He paid that initial investment with a single check. [Gov. Exh. 15D.] Unfortunately, he has “never gotten a single penny back” from this investment. [R. 107 at 190.] Thus, Mr. Drager lost $30, 000 for the purposes of restitution.

         Another victim, Candys Hemphill Adams, testified that she invested a total of $89, 500. [R. 107 at 221.] The Government also introduced several checks from Ms. Adams along with bills from Mr. Rodgers that Ms. Adams confirmed she had paid. Id. at 214-21. Ms. Adams claimed that she received “less than $5, 000” as a return for her investment. Id. at 221. Subtracting this $5, 000 in returns from her total investment of $89, 500, the Court finds Ms. Adams lost $84, 500 for the purposes of restitution.

         Dale Beeghly testified that he gave Mr. Rodgers and his companies $28, 500. [R. 108 at 35.] The United States introduced exhibits of checks from Mr. Beeghly for the amounts of $25, 000 [Gov. Exh. 6A] and $3, 300 [Gov. Exh. 6B]. He indicated receiving five checks from Mr. Rodgers in the amounts of $2, 500, $3, 500, $1, 200, $1, 500, and $450 [R. 108 at 54; Gov. Exh. 6J] plus another check for $70 [R. 108 at 44] and a MoneyGram from Rickey Rodgers for $500 [Gov. Exh. 6K] for a total of $9, 720 as a return on his investment. By the Court's calculations, this means Mr. Beeghly lost a total of $18, 780 for the purposes of restitution.

         Patrick Schneider invested $74, 500. [R. 108 at 88, 94.] Of that investment, he received $10, 000 in royalty checks for the oil. Id. He testified to these amounts multiple times at trial. Subtracting the $10, 000 he received from his total investment of $74, 500, Mr. Schneider's loss for the purposes of restitution is $64, 500.

         Talbert “Hal” Campbell testified that he invested $100, 000, and the Government introduced as a trial exhibit his check to Rick-Rod Oil, Inc. for that $100, 000. [R. 108 at 118; Gov. Exh. 5E.] He also estimated that he received checks totaling approximately $1, 000. [R. 108 at 119.] The Government provided to the Court royalty checks from Barrett Oil and Sunoco in the amounts of $379.10, $189.05, $318.96, and $141.72, for a total of $1, 028.83. [See R. 116-2.] The $1, 028.83 subtracted from Mr. Campbell's total investment of $100, 000 leaves him with a loss amount of $98, 971.17.

         Stephen Chimnes provided the check for $30, 000 he invested with Mr. Rodgers. [R. 108 at 157; Gov. Exh. 5H.] He testified that he received “small checks here and there” for royalties, but that the checks totaled under $1, 000. [R. 108 at 159-60.] The Government provided copies of royalty checks for $97.68 (USA-00026924), $45.53 (USA-00026927), $54.64 (USA-00026937), $54.90 (USA-00026939), $113.75 (USA-00026942), $96.17 (USA-00026949), which total $462.67 and are consistent with Mr. Chinnes's testimony of small checks under $1, 000. [R. 116-2.] Thus, the Court subtracts the $462.67 in royalties from the total investment of $30, 000 for a total loss of $29, 537.33.

         Roy Lowery also testified at trial that he invested $100, 000 in Mr. Rodgers's scheme. [R. 108 at 172.] He also indicated that he received between $2, 000 and $3, 000 as a return on his investment. Id. at 183. His signed affidavit provided to the Government elaborates that he invested $80, 000 in two separate contracts, plus he paid five rounds of completion fees at $3, 500 each. [R. 116-2.] Less the up to $3, 000 he received on this investment, the Court finds by a preponderance of evidence that Mr. Lowery lost $97, 000 on this venture.

         Charles Zimmerman invested $35, 000. [R. 109 at 13, 23.] At trial, he also repeatedly relayed that he received nothing from his investment, not even royalty checks. Id. at 13, 18. Thus, for the purposes of restitution, Mr. Zimmerman sustained a loss of $35, 000.

         Randall Powell initially invested $25, 000 [Gov. Exh. 10A] and then paid a $3, 500 completion fee, for a total of $28, 500. [R. 109 at 29-32.] He testified that he received no money from the oil but conceded that he received $8, 700 from Rickey Rodgers “to make things right.” Id. at 34-36. Subtracting this $8, 700 from the total investment of $28, 500 results in a loss of $19, 800 for Mr. Powell.

         Next, Jack Hill testified that he invested somewhere around $15, 000. [R. 109 at 48.] The Government introduced a check for Mr. Hill's initial investment of $12, 500 [R. 109 at 55; Gov. Exh. 19D], plus a $1, 650 check for roughly half the completion fee [R. 109 at 57; Gov. Exh. 19F], and a $1, 666 check for the remaining fee due [R. 109 at 58; Gov. Exh. 19G], for a total investment of $15, 816. He also indicated that he received royalties from Barrett Oil for less than $300. The total investment of $15, 816 less the $300 in royalties results in $15, 516 of loss for Mr. Hill.

         Michael Warren, and his wife Lisa, first invested $25, 000 and then invested another $25, 000 with Mr. Rodgers's companies. [R. 109 at 102.] Additionally, they paid five different requests for completion fees: one in the amount of $3, 300 [R. 109 at 115] and four payments of $1, 750 [R. 109 at 121-22]. Total, Mr. Warren invested $60, 300. He also testified that they received up to $5, 000 in money from royalties [R. 109 at 22] and that Rickey Rodgers refunded them $12, 000 [R. 109 at 126]. By the Court's calculations, the $60, 300 invested, minus the $5, 000 in royalties and $12, 000 in refund results in a loss of $43, 300 for Mr. Warren and his wife.

         Gary Whitehurst invested only once with Mr. Rodgers in the amount of $30, 000. [R. 109 at 158.] Of this, he testified at trial that he received $1, 700 in royalties. [R. 109 at 162-63.] Subtracting the amount of money he received from ...


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