Updated at 3:12 p.m.
Former District of Columbia Councilmember Harry Thomas Jr., who pleaded guilty earlier this year to embezzling public funds, was ordered today to pay $353,000 in restitution to the city.
The ruling is a win of sorts for Thomas, who had argued against owing a higher restitution amount of $446,000, which was what the U.S. Probation Office had calculated as the city's total loss. U.S. District Judge John Bates indicated at Thomas' May 3 sentencing hearing that he was leaning toward the higher amount, but delayed a decision so he could hear from both sides.
In today's opinion (PDF), Bates found that because Thomas pleaded guilty to embezzling only $353,000, that amount was what he should owe. Bates also found that the plea agreement clearly stated that both sides agreed that Thomas would owe $353,000, as opposed to saying more generally that Thomas would have to make "full restitution," or something to that effect.
Thomas, a Democrat elected to represent the city’s Ward 5 in 2006, pleaded guilty Jan. 6 to illegally diverting $353,000 in public funds, including money earmarked for youth sports programs, and filing false tax returns. On May 3, Bates sentenced Thomas to serve 38 months in prison.
The U.S. Probation Office’s presentencing report calculated a total loss to the city of $446,000, which included $100,000 that Thomas improperly diverted to pay for an event related to the 2009 presidential inauguration. The city’s Office of the Attorney General submitted a victim impact statement supporting the higher amount for restitution.
Thomas, in a brief (PDF) filed May 17, urged the court to go with the lower amount, arguing that it reflected what he had pleaded guilty to embezzling for private use. The government, which filed its brief (PDF) on the same day, acknowledged that it had agreed to the lower amount in the plea agreement, but said that a decision to go with the higher amount would be consistent with the case law.
In today’s opinion, Bates cited Thomas’ argument that the U.S. Supreme Court’s 1990 decision in Hughey v. U.S. held that if a defendant pleaded guilty to a single count, restitution would be limited to the damages from that count. Restitution can go beyond that if a “scheme, conspiracy, or pattern of criminal activity” is a part of the offense, Bates wrote, but he agreed with Thomas that this wasn’t an element in Thomas’ case.
Bates noted that Thomas has already paid back $70,000 to the city, meaning he’ll owe the remaining $283,000.
D.C. Attorney General Irvin Nathan, in a statement issued this afternoon, said that while "we regret that the amount of restitution ordered was not a bit higher, we are pleased that the Court ordered Mr. Thomas to provide substantial restitution to the District of Columbia treasury to recover funds unlawfully diverted. The OAG will be vigilant in ensuring that the restitution order is satisfied when Mr. Thomas’s circumstances allow.”
Thomas’ lead attorney, Seth Rosenthal of Venable, said today that "we're unsurprised that the judge followed the law and tendered the right result." Rosenthal confirmed that Thomas is scheduled to begin serving his sentence June 20 at the federal prison in Montgomery, Ala.
A spokesman for the U.S. attorney’s office, William Miller, declined to comment "beyond our recent filing on the issue."