UPDATE 6:05 P.M.
Harry Thomas Jr. will be off to jail soon, but one aspect of the former D.C. Council member’s punishment remains unresolved: Whether he’ll be paying the city back $353,500 or $446,000.
The discrepancy reflects a dispute over what amount of loss to the city he should be responsible for paying back. The lower figure represents the amount he pleaded guilty to diverting from city coffers into his own bank account. The additional $92,500 represents funds he diverted to fund a 2009 inaugural ball he helped organize.
Prosecutors, in their plea agreement with Thomas, had agreed to the smaller figure. But at Thomas’s May 3 sentencing, U.S. District Judge John D. Bates suggested that the higher figure would be more appropriate, given that Thomas’s actions deprived the victim, the D.C. government, of $446,000 regardless of where the funds ended up.
In a 14-page argument filed Thursday, Thomas’s lawyers argued that the smaller figure was appropriate, saying that under law restitution is “limited to the loss caused by the specific conduct that is the basis of the offense of conviction.”
While the law provides for further restitution in the case of a “scheme, conspiracy, or pattern of criminal activity,” the lawyers argued that Thomas did not plead guilty to an offense that contained those elements. In the best case, they argued the law is ambiguous, and, under a legal doctrine that essentially says tie goes to the defendant in the case of ambiguity, Thomas should be spared the additional repayment.
It’s unclear what prosecutors will argue, given that in their plea agreement with Thomas, they agreed to the smaller restitution figure. But with Bates having indicated his sympathies for the higher figure, they might now change their views. Their argument is due to Bates by day’s end, and a spokesman for the U.S. attorney’s office declined to comment ahead of the filing.
Bates has given himself until Aug. 1 to rule on the restitution issue. Thomas has already repaid the city $70,000 pursuant to his settlement of a civil case filed last year by D.C. Attorney General Irvin B. Nathan.
UPDATE, 6:05 P.M.: In a five-page brief, U.S. Attorney Ronald C. Machen argued that the higher amount is justified: “Because the Court has made the determination to hold Thomas accountable for a total loss of $446,000, an order of restitution in the same amount is consistent with the mandatory nature of the [federal restitution statute] and supporting case law.”