Replacement Cost An Appropriate Measure for Restitution

United States v. Howard, 887 F.3d 1072 (10th Cir. 2018) (OK): The panel addressed whether the district court correctly used the replacement cost as the restitution value and correctly determined the value of the returned property to be zero. The panel holds that depending on the factual circumstances, different measures of value may be appropriate, such as fair market value, replacement cost, foreclosure price or cost to the aggrieved. Sometimes, there may be multiple measures of value. Regardless, in every case, the ‘controlling metric’ for a restitution award is actual loss suffered. Here, the facts show that replacement cost was the correct measure of value. Although the value of the property, if returned, can offset the restitution amount, the accused has the burden of persuasion ’s with regard to any offset value. That burden can be rather exacting: because Howard did not calculate the expenses that would have been incurred to refurbish and sell the parts of the returned machine, his evidence of the general prices of refurbished parts was insufficient to meet his burden. The court did not abuse its discretion in finding the returned machine had no value to its owner.