Legal Memorandum: Liability Standards for Co-conspirators

Issue: What are the standards for applying joint and several liability for co-conspirators in the U.S. District Court of New Jersey

The court has discretion to impose joint and several liability.  Indeed, the statute expressly provides that

If the court finds more than 1 defendant has contributed to the loss of the victim, the court may make each defendant liable for the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.

18 U.S.C. § 3664(h) (emphasis added).  

The federal court in New Jersey has noted its discretionary authority on this issue:

Section 3664 expressly allows for varying amounts of restitution to be imposed upon different defendants.  Section 3664 also permits joint and several liability among co-defendants.

United States v. Atl. States Cast Iron Pipe Co., 612 F. Supp. 2d 453, 487 (D.N.J. 2009) (emphasis added).

“[i]mposition of restitution liability for acts of co-conspirators is not mandatory.”  United States v. Agate, 613 F. Supp. 2d 315, 323 (E.D.N.Y. 2009). 

“contribution to the victim’s loss” is one of the factors expressly mentioned as justifying individual apportionment among defendants.  See 18 U.S.C. § 3664(h).

Second, allocation of restitution liability pro rata in proportion to the amounts each defendant received eliminates the risk that a victim’s may obtain a double recovery.  On the other hand, if the court imposes joint and several liability on both defendants, there is a risk that victims may recover a partial windfall, a sum that is twice its actual proven […]