United States of America v. John P. Aman

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4814
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
JOHN P. AMAN,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp,
Jr., Senior District Judge. (1:14-cr-00003-FPS-JSK-1)
Submitted: June 16, 2015 Decided: July 7, 2015
Before KEENAN, WYNN, and FLOYD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Andrew R. Cogar, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellant. John P. Aman, Appellee Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
John P. Aman pled guilty to one count of bank fraud. The
district court sentenced Aman to 21 months’ imprisonment and
ordered him to pay restitution to Freedom Bank and Everest National
Insurance Company. The district court declined to issue
restitution in favor of other entities, ruling that their failure
to file a declaration of loss statement precluded a restitution
award to those entities. The Government noted an appeal,
challenging the restitution order.1 Because the Mandatory Victims
Restitution Act of 1996 (“MVRA”), 18 U.S.C. § 3663A(a)(1), (c)(1)
(2012), does not condition restitution upon the filing of a
statement of loss, we vacate the restitution order and remand for
further proceedings.2
From October 2002 to November 2006, Aman, using the power of
attorney given him by Pete Olean, obtained several loans from
Huntington Bank and from West Union Bank under Olean’s name and
using Olean’s stock as collateral. In 2007, Aman took out two
loans from Freedom Bank, in the amounts of $114,258 and $245,000.
The proceeds of these loans were used to pay off the Huntington
Bank and West Union Bank loans, and to pay Aman’s personal
1 Aman expressly declined counsel on appeal and has not filed
a brief.
2 The parties have not raised any challenges to Aman’s
conviction and sentence.

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expenses. The Freedom Bank loans were also in Olean’s name and
Aman used Olean’s stock as collateral.
In April 2009, Aman defaulted on the Freedom Bank loans and
Freedom Bank sold the collateral for $372,164, in partial
satisfaction of the outstanding debt. The balance due after the
sale of the collateral was $49,021.97.
After Olean discovered that Aman had taken out the loans at
Freedom Bank, he filed a civil action against Huntington, West
Union, and Freedom Banks alleging fraud and negligence in relation
to Aman’s use of his power of attorney and the banks’ issuance of
loans. The parties settled this lawsuit for $300,000, with Freedom
Bank agreeing to pay Olean $83,333.33, and the other two banks
splitting the balance.
Aman was indicted on 11 counts of bank fraud, 18 U.S.C. § 1344
(2012), in connection with his use of Pete Olean’s power of
attorney to obtain loans from Huntington, West Union, and Freedom
Banks. He pled guilty to Count Ten, which alleged that he
submitted a fraudulent loan application in the amount of $245,000
to Freedom Bank.
The probation officer identified as victims of Aman’s
offense, the estate of Pete Olean and all three banks. However,
the probation officer noted that not all of the victims had
returned declaration of loss forms and therefore restitution
amounts were not computed. For purposes of restitution, the

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Government asserted that Olean’s estate and the three banks were
all victims of the offense.
The district court noted that only Freedom Bank had filed a
loss declaration, and therefore it was the only identified victim.
The court reasoned that a victim who did not submit a loss
declaration “may be precluded” from any restitution award.
After hearing argument from the Government as to why the other
banks and Olean’s estate were victims for restitution purposes,
the court awarded $49,021.97 in restitution to Freedom Bank and
$83,333.33—the amount of the settlement payment from Freedom Bank—
to Everest National Insurance Company, Freedom’s insurer, which
was identified on the loss declaration submitted by Freedom. On
appeal, the Government contends that the district court erred by
refusing to consider restitution for victims who has not filed
proofs of loss and by denying the Government the opportunity to
present evidence in support of restitution amounts for the banks
and the estate of Pete Olean.
The MVRA requires the district court to order restitution for
all losses that result to all victims of a criminal scheme or
conspiracy. 18 U.S.C. § 3663A(a)(1), (c)(1) (2012). The court
must award restitution where the defendant is convicted of an
offense against property and the victim suffers pecuniary loss.
18 U.S.C. § 3663A(c)(1) (2012). Restitution must include both the
victim’s “expenses incurred during participation in the

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investigation or prosecution of the offense” and the value of any
stolen property (if return of the property “is impossible,
impracticable, or inadequate”). § 3663A(b)(1)(B), (b)(4). The
Government bears the burden of establishing by the preponderance
of the evidence the status of a victim and the amount of the
restitution. 18 U.S.C. § 3664(e) (2012); United States v. Freeman,
741 F.3d 426, 435 (4th Cir. 2014).
Contrary to the ruling by the district court, the MVRA does
not require victims to submit a proof of loss form as a condition
of receiving a restitution award. While the statute provides that
probation officers must notify victims of the “opportunity” to
submit information concerning loss and restitution, 18 U.S.C.
§ 3664(d)(2)(A)(iii), (vi) (2012), the filing of such information
is not a condition precedent to a restitution award. Rather, the
award of restitution to victims is mandatory. See United States v.
Newsome, 322 F.3d 328, 341 (4th Cir. 2003) (“MVRA requires that
the court enter an order of full restitution when the loss is
caused by a property offense.”) (emphasis in original). In fact,
the victim is “not required to participate in any phase of a
restitution order.” 18 U.S.C. § 3664(g)(1) (2012); United States
v. Speakman, 594 F.3d 1165, 1176 (10th Cir. 2010). Indeed, the
Government—not the victim—bears the burden of proving that a victim
is entitled to restitution and the amount of the restitution due.
18 U.S.C. § 3664(e).

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Because restitution is mandatory without regard to a
statement or proof submitted by victims of the offense, see
Speakman, 594 F.3d at 1178 (providing that court cannot conclude
that victim renounced restitution without a clear statement to
that effect by the victim); see also United States v. Curran, 525
F.3d 74, 84 (1st Cir. 2008) (stating that MVRA “provides for
mandatory restitution regardless of the preference of the
victims”), we conclude that the district court erred by requiring
a declaration of loss statement as a condition to an award of
restitution. Accordingly, we vacate the restitution portion of
Aman’s criminal judgment and remand to the district court for
further proceedings. On remand, after affording the Government
the opportunity to present evidence, the district court is directed
to consider whether Huntington Bank, West Union Bank, and the
estate of Pete Olean qualify as victims of Aman’s offense of
conviction and the amount, if any, of restitution due to each of
them. See 18 U.S.C. § 3664(e); U.S. Sentencing Guidelines Manual
§ 6A1.3, p.s. (2013) (“When any factor important to the sentencing
determination is reasonably in dispute, the parties shall be given
an adequate opportunity to present information to the court
regarding that factor.”). We dispense with oral argument because
the facts and legal contentions are adequately presented in the

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materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED

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