TRADEMARK - COUNTERFEIT GOODS, US v. Borders

Vacating sentence's restitution order.

It is clear that the government has not introduced sufficient evidence to determine the proper loss amount. At the restitution hearing, the government failed to prove by a preponderance of the evidence that the counterfeit DVDs entered the marketplace. SeeRobertson, 493 F.3d at 1333. Neither did the government demonstrate the actual loss to the victim companies. On appeal, the government has conceded that multiplying the estimated number of counterfeit DVDs by the full retail price was not an acceptable method for calculating restitution. See Huff, 609 F.3d at 1249. A remand here to recalculate the loss amount would be futile, as the government has already indicated that it lacks sufficient evidence to support restitution. Therefore, we accept the government's concession and vacate the district court's restitution order.

United States v. Borders, 13-12120, 2014 WL 259822 (11th Cir. Jan. 24, 2014)