United States v. George Thunderhawk
2017 U.S. App. LEXIS 10942
| 8th Cir. | 2017Background
- Defendant George Thunderhawk convicted (2014 jury) of abusive sexual contact of a child under 12 in violation of 18 U.S.C. § 2244(a)(5).
- At sentencing, victim’s mother testified to approximately $14,967 in crime-related medical costs; PSR and court indicated restitution was owed and set a future hearing to determine amount.
- Thunderhawk appealed before the scheduled restitution hearing; this stayed district-court proceedings. This Court affirmed the conviction and mandate issued. United States v. Thunderhawk, 799 F.3d 1203.
- After remand, the district court held no further testimony was needed, allowed ten days for additional evidence, and ordered Thunderhawk to pay $14,967.47 in restitution to the victim’s guardian.
- Thunderhawk appealed the restitution order, arguing (1) the court lost authority by missing the 90‑day § 3664(d)(5) deadline, (2) the government failed to prove proximate causation for the medical bills, and (3) the court should have ordered nominal periodic payments due to his indigence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court’s authority after missing § 3664(d)(5) 90‑day deadline | Gov: Court retains authority where it clearly indicated restitution would be ordered and only amount remained | Thunderhawk: Missing the 90‑day deadline deprived the court of power to order restitution | Held: Dolan controls; court retained authority because restitution liability was indicated at sentencing and delay caused no prejudice to defendant. |
| Proximate causation for medical expenses | Gov: Victim’s sworn statements, mother’s testimony, PSR, and medical bills suffice to show proximate cause by preponderance | Thunderhawk: Long lapse of time and intervening family/social issues required medical records or expert testimony to establish causation | Held: Victim and mother testimony plus documentary bills satisfied preponderance standard; district court’s finding not clearly erroneous. |
| Consideration of defendant’s economic circumstances in ordering restitution | Gov: Court must order full restitution; payment schedule may consider resources | Thunderhawk: Indigence warrants nominal periodic payments under § 3664(f)(3)(B) | Held: Court must order full restitution; it may set payment schedule. Here the record did not show inability to pay now or in foreseeable future, so nominal‑payment finding was not warranted. |
| Specification of payment schedule / delegation to probation | Gov: Court set Amended Judgment with immediate lump sum box and special instructions to develop plan during supervised release | Thunderhawk: Judgment improperly delegates payment‑schedule determination to Probation/BOP and is ambiguous | Held: Court did not abdicate duty; although form ambiguous, directing probation to develop a plan for judicial approval was permissible and not an abuse. |
Key Cases Cited
- Dolan v. United States, 560 U.S. 605 (court retains power to order restitution despite missing § 3664 deadline when court previously indicated restitution would be ordered)
- Paroline v. United States, 134 S. Ct. 1710 (proximate‑cause requirement for restitution in sexual‑abuse cases)
- United States v. Thunderhawk, 799 F.3d 1203 (8th Cir. decision affirming conviction and related appeal issues)
- United States v. Adejumo, 848 F.3d 868 (applying Dolan principle in Eighth Circuit)
- United States v. Emmert, 825 F.3d 906 (victim testimony may support provable loss)
- United States v. Adetiloye, 716 F.3d 1030 (sworn victim statements can satisfy restitution proof)
- United States v. McGlothlin, 249 F.3d 783 (court may not delegate restitution scheduling duty to Probation Office)