Friday, September 3, 2010

Restitution In Fraud Cases: Fake Nurse Must Repay Wages Earned & Importance Of Repayment of Restitution

An unlicensed woman who stole the identities of registered nurses to obtain work as a nurse must pay back wages and benefits she received, even though she actually did the work for which she was paid, the Ninth U.S. Circuit Court of Appeals ruled on August 20, 2010.  The case is United States v. Hunter, No. 09-30246. This case is a lesson on how the courts interpret "making the victim whole" even when services are performed by a defendant that have some value and did not require a license. This tracks the 6th Circuit in a similar case.

Upholding a restitution order by a federal judge in Fairbanks, Alaska, the three-judge panel said Becky Nadine Hunter had to repay former employers more than $18,000 because they did not receive the services they paid for: those of a “licensed” nurse.

Ms. Hunter was convicted of five counts of mail fraud and other crimes after federal prosecutors accused her of devising as many as 21 aliases to defraud employers and lenders, as well as the state and federal governments. The mail fraud charges arose from a series of false documents Ms. Hunter mailed to obtain employment as a nurse when she moved to Alaska in 1998. Prosecutors said she acquired nursing licenses in the state using the names, Social Security numbers, birth dates and credentials of two nurses who lived in New York and Canada.

Ms. Hunter used the first license she obtained, along with a false employment history and other information, to get a job in 1998 as a school nurse with the Fairbanks North Star Borough School District. The district paid her $12,558 in wages and benefits, but fired her after discovering her false identity. Ms. Hunter later used a similar set of false documents to obtain a nursing position with the U.S. Department of Labor, where she was paid $5,457. She was arrested in 2004 following an investigation by the FBI, the Internal Revenue Service and the U.S. Postal Service. 

U.S. District Court Judge Ralph R. Beistline of the District of Alaska sentenced Ms. Hunter to 96 months incarceration after she successfully appealed her initial sentence, and he ordered her to make restitution in full to the North Star Borough and the Department of Labor under the federal Mandatory Victims Restitution Act (MVRA).

Ms. Hunter appealed, arguing that her former employers would receive windfalls if she was required to repay wages for work she actually performed, but the Ninth Circuit rejected the argument in an opinion by U.S. District Judge G. Murray Snow of the District of Arizona, sitting by designation.

Noting that the purpose of restitution under the MVRA is not to punish a defendant but to make victims whole by reimbursing actual losses, Snow said the district court did not err in concluding that Ms. Hunter’s former employers were victims of her conduct.

“Both [North Star] Borough and the Department of Labor were directly and proximately harmed by Hunter’s mail fraud because they paid for the services of a licensed nurse that were never received…,” he wrote. “If Hunter had not mailed false documents reflecting fictitious nursing credentials, she could not legally have been employed in positions that required a valid nursing license, and a qualified licensed nurse could have been employed instead.”

Snow similarly rejected Hunter’s assertion that the restitution order should have deducted the value of services she provided that did not require her to hold a nursing license.

“This conclusion accords with traditional principles of contract law,” he explained, pointing to treatises by Corbin and Farnsworth. “When an individual fails to comply with licensing requirements aimed at protecting health and safety rather than merely raising revenue, that individual can maintain ‘no action for the promised compensation or for quantum meruit.’ ”  Judges Raymond C. Fisher and Marsha S. Berzon joined Snow in his opinion.

Attorney Commentary:  Restitution is key in fraud cases. There are some cases where there has been no fraud. But in those cases where there has been fraud or a mistake of judgment so severe that it amounts to fraud, restitution is important.  Assessment of restitution and payment before charges or sentencing is key to obtaining a great result in a criminal fraud case. 

If there is 1 thing I could teach my clients it is to pay restitution at some amount -- no matter how small -- every month. If the restitution is $100,000 and the client has no money, the payment of $100 a month or taking a second job to pay $2,000 a month will earn the respect of the court, the prosecution and the victim. There may be some dispute over the amount but payment is critical.

All too often even though I preach this regularly, my clients or potential clients fail to appreciate how important this fact is in the system. I make my clients earn the right to say they are sorry and to show true acceptance of responsibility where my client has made a mistake or done something wrong. If this means borrowing money, selling items through a yard sale or otherwise or second or third jobs -- this may be the difference between probation and jail time.

Posted by Tracy Green, Esq. Please email Ms. Green at or call her at 213-233-2260 to schedule a complimentary 30-minute consultation.  Ms. Green's office at Green and Associates is located at 800 West Sixth Street, Suite 450, Los Angeles, CA 90017.

The firm focuses its practice on the representation of licensed professionals, individuals and businesses in civil, business, administrative and criminal proceedings. They have a specialty in representing licensed providers and in audits, administrative board and discipline matters in California and throughout the country. Our website is:


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