UNITED STATES of America, Plaintiff-Appellee, v. Michael J. ANDREWS, Defendant-Appellant.
No. 09-30072.
United States Court of Appeals, Ninth Circuit.
April 7, 2010.
600 F.3d 1167
Argued and Submitted Nov. 2, 2009.
IV
California has a strong interest in protecting its residents from sexual predators like Tello who enter the state to lure minors away to engage in illegal sexual activity in another state. We conclude that Tello could have been charged and convicted with a criminal offense under California law, even if he intended to engage in sexual activity with the minor only after returning to Arizona. There was sufficient evidence to support his conviction under
AFFIRMED.
Matthew F. Duggan, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.
Before: ARTHUR L. ALARCÓN, FERDINAND F. FERNANDEZ and RICHARD R. CLIFTON, Circuit Judges.
Opinion by Judge ALARCÓN; Concurrence by Judge CLIFTON; Dissent by Judge ALARCÓN.
ALARCÓN, Senior Circuit Judge:1
Michael J. Andrews appeals from a restitution order imposed pursuant to the Mandatory Victims Restitution Act (“MVRA“),
I
On October 2, 2007, a federal grand jury returned a one count indictment charging Andrews with assault resulting in serious bodily injury.3 On September 4, 2008, Andrews pled guilty to the one count indictment.
On January 14, 2009, Andrews was sentenced to imprisonment for 28 months. In the plea agreement, Andrews agreed to an order of restitution in an amount to be determined prior to the sentencing proceedings. At the sentencing hearing, however, Andrews requested the district court to bifurcate the sentencing and restitution hearing because he disputed the amount of restitution recommended in the pre-sentence report. The district court granted Andrews’ request.
At the restitution hearing, the district court ordered that Andrews pay $59,284.41 directly to CVCP for Bershaw‘s medical bills and his injury-related loss of income. Pursuant to
II
Andrews contends that the district court‘s restitution order overcompensated Bershaw because he “received payment from both [CVCP] and the Social Security Administration (SSA) for the same period of disability.” (Appellant Br. 19). He asserts “[t]his payment violated Section
Because there is evidence in the record supporting the district court‘s findings that the disability awards from CVCP and SSA constituted two different types of compensation, the district court did not commit clear error in determining that no overcompensation or double-dipping occurred.
III
Andrews further maintains that the district court erred in not allowing him to present an expert witness at the restitution proceeding “in an effort to demonstrate that his actions were not the proximate cause of Mr. Bershaw‘s disability.” (Appellant Br. 23). He argues that he “explained [to the district court] that Dr. Mays was being called to testify regarding ‘whether [] Bershaw‘s cognitive disorder is attributed to the head injury or are there possible—other possible reasons for the cognitive disorder.‘” Id.
“[R]estitution can only include losses directly resulting from a defendant‘s offense.” Stoddard, 150 F.3d at 1147 (quoting United States v. Sablan, 92 F.3d 865, 870 (9th Cir.1996)). “For that reason,
“A victim for restitution purposes is a person who has suffered a loss caused by the specific conduct that is the basis of the offense of conviction.” United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 (9th Cir.2001) (quoting Hughey, 495 U.S. at 413, 110 S.Ct. 1979) (footnote omitted). In Gamma Tech this court stated:
It is clear from our cases that the phrase “directly resulting” means that the conduct underlying the offense of conviction must have caused a loss for which a court may order restitution, but the loss cannot be too far removed from that conduct.... Defendant‘s conduct need not be the sole cause of the loss, but any subsequent action that contributes to the loss, such as an intervening cause, must be directly related to the defendant‘s conduct.... The causal chain may not extend so far, in terms of the facts or the time span, as to become unreasonable.
Gamma Tech, 265 F.3d at 928 (citations omitted). “[T]he main inquiry for causation in restitution cases[is] whether there was an intervening cause and, if so, whether this intervening cause was directly related to the offense conduct.” Gordon, 393 F.3d at 1055 (quoting United States v. Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999)).
“Under
In denying Andrews‘s request to present his expert witness, the district court engaged in the following colloquy with his counsel:
THE COURT: So tell me how I am going to be helped by Doctor Mays’ testimony today?
MR. FISCHER: Only that—
THE COURT: See, it is not enough for Doctor Mays to tell me I don‘t think they got it right at CVCP. CVCP made their determinations and they paid the money. End of story as far as I am concerned.
....
MR. FISCHER: So I am asking simply of Doctor Mays if the disability that was paid out—or his diagnosis of disability, he being disabled, was a direct result of the head injury or it could have been from another source.
THE COURT: Counsel, the reason that I hesitate here is that my limited understanding of the Crime Victims Compensation Program is they are not going to pay a nickel unless they are satisfied based on the examinations of various treatment providers that the initial criminal incident caused the condition for which application sought benefits, and since they made that determination that both on the treating physicians and on the evaluations, are you attempting to
go behind those evaluations to say they got it wrong?
MR. FISCHER: Yes.
THE COURT: I don‘t know how you can do that. They did it, they paid it, end of sorry [sic].
....
MR. FISCHER: Well, Your Honor, I would—I would simply ask Doctor Mays if there was another explanation for the disability that was determined by CVCP.
....
THE COURT: Mr. Bershaw is like everybody else. He comes with a whole set of complete psychosocial history, and that individual is—then suffers a skull fracture which imposes on what he already is.
The severe injury—severe physical injury and whatever reasonable consequences flow from that psychologically and physically, and that is within the authority of the CVCP to determine based on expert evaluations that they relied on so I don‘t know how we get any further on this.
These comments demonstrate that the district court apparently found that Andrews‘s conduct was the sole cause of Bershaw‘s mental and physical condition without considering contrary evidence proffered by Andrews. The district court‘s finding violated the court‘s duty to resolve any dispute concerning the cause of Bershaw‘s ailments by a preponderance of the evidence. Waknine, 543 F.3d at 556 (citation omitted).
Thus, the district court abused its discretion in rejecting the expert witness‘s testimony.
Upon remand, the district court should permit Andrews to present any evidence indicating that his criminal conduct did not cause Bershaw‘s mental and physical condition. Because the amount of restitution may be affected by the district court‘s findings on the cause of the victim‘s medical expenses and his inability to work, the district court should order that the victim be provided with notice of the restitution hearing. The district court must determine that restitution for medical expenses is supported by reliable evidence and provide an adequate explanation as to how it determined the restitution award. The district court may only award restitution for medical expenses and loss of income if the Government demonstrates that all costs incurred were proximately caused by Andrews‘s criminal conduct.
VACATED and REMANDED with instructions.
CLIFTON, Circuit Judge, joined by Judge FERNANDEZ:
We join Judge Alarcón‘s opinion for the court. We also conclude it was proper for the district court to order as part of the restitution award that payment for the victim‘s lost income be made directly to the third party that had reimbursed the victim for that loss, in this case Washington‘s Crime Victim‘s Compensation Program (CVCP), rather than to the actual victim of the crime.
“We review de novo the legality of a restitution order and, if the order is within the statutory bounds, we review the amount of restitution for abuse of discretion.” United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir.2008). Factual findings supporting a restitution order are reviewed for clear error. United States v. Berger, 473 F.3d 1080, 1104 (9th Cir.2007).
“Court cannot order restitution without statutory authorization.” United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir.2007). Such restitution statutes include the Victim and Witness Protection Act of 1982 (“VWPA“), which authorizes a discretionary payment for certain offenses,
Congress explicitly authorized direct payment to a third party such as CVCP in
If a victim has received compensation from insurance or any other source with respect to a loss, the court shall order that restitution be paid to the person who provided or is obligated to provide the compensation, but the restitution order shall provide that all restitution of victims required by the order be paid to the victims before any restitution is paid to such a provider of compensation.
The victim here received compensation from CVCP with respect to his lost income. Under this statute, it is appropriate to order that restitution be paid directly to CVCP. The only limitation under the statute is that the victim has to be fully paid before the third party, CVCP, can be paid.
Defendant Michael Andrews argues and the dissenting opinion by Judge Alarcón agrees that this statute should be disregarded based upon the language used in
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense.
It is contended in particular that subsection (C), which concerns lost income, provides that it is “the victim” who is to be “reimburse[d],” in contrast to subsections (A) and (B), concerning the costs of health care and therapy, which do not specify to whom the payment should be made.
But there is no reason to read that language in such a way as to infer that Congress intended to repeal the more specific direction contained in
The dissenting opinion does not dispute that under Washington law, CVCP is entitled to receive the money it already paid the victim, Scott Bershaw, back from him, if and when he is reimbursed by defendant Andrews. As the district court observed, “[r]eimbursing the CVCP directly avoids the unnecessary procedural hurdle of reimbursing Mr. Bershaw, only to have the CVCP then seek reimbursement from Mr. Bershaw.” Andrews should not benefit at all by requiring that the restitution payment be made to the victim instead of CVCP, for he would properly still have to pay a total amount of restitution in the same amount. If that were the case, the amount to be paid directly to the victim would simply be larger, and the victim would be expected to pay the additional amount back to CVCP. Nobody would ben-
None of the cases cited in the dissenting opinion or by Andrews support a different result in this case. In particular, none of those decisions held that
In United States v. Dayea, 73 F.3d 229 (9th Cir.1995), after a police officer was killed by a drunken driver, his widow sought reimbursement for the loss of her husband‘s income and also for her own increased insurance costs. Though she would qualify as an injured plaintiff in a wrongful death action, we held that she did not qualify as a “victim” in this context because she did not personally suffer bodily injury, as was required by the applicable restitution statute, the Victim and Witness Protection Act,
In United States v. Follet, 269 F.3d 996 (9th Cir.2001), we reversed a restitution order that required a defendant convicted of sexual abuse of a minor to pay a government-funded facility for the cost of psychological counseling provided to the young girl who was the victim of the abuse. The facility was located on an Indian reservation and provided its services to eligible clients, including the victim, at no cost to them. Our decision was based on the specific language of the different restitution statute involved there,
United States v. Cliatt, 338 F.3d 1089 (9th Cir.2003), addressed the situation suggested but not dealt with in Follet, that being a restitution order directing that restitution payment be made directly to a government facility that provided health care to the victim without charging the victim. The victim in Cliatt was an active-duty member of the United States Army, and she was treated in a military hospital for bodily injuries suffered when she was attacked by the defendant, who was convicted of voluntary attempted manslaughter. We concluded that the military hospital was entitled to restitution for the cost of the victim‘s care, whether or not the hospital itself was a “victim,” because the language of section
It was in that context that Cliatt used the language quoted in the dissenting opinion, at 5300-01, that
The decisions from other courts of appeals relied upon by the dissenting opinion do not support a different result, either. In United States v. Wilcox, 487 F.3d 1163 (8th Cir.2007), the requested restitution was denied because the compensation sought was for the lost income of a person other than the “victim” of the crime. Defendant was convicted of sexual abuse of a minor. Reimbursement was sought for the lost income of the victim‘s mother based upon time she took off from work to care for her child. The Eighth Circuit concluded that only the child was a “victim” under the statute, so only the child‘s lost income could be the subject of the restitution order. Id. at 1176-77. In this case, however, the money at issue is compensation for income lost by the victim, Bershaw, due to bodily injuries he suffered from defendant‘s criminal conduct. Payment for the victim‘s lost income is squarely authorized by the restitution statute.
The decision of the Seventh Circuit in United States v. Pawlinski, 374 F.3d 536 (7th Cir.2004), requires careful reading because the proposed recipient denied restitution by the court of appeals was “the Crime Victims Fund,” which makes it sound more like our case than it really is. That proposed recipient suffered no loss as a result of the crime and, unlike CVCP in our case, had not reimbursed the actual victim for any loss. Pawlinski was a Milwaukee alderman who pleaded guilty to mail fraud for having defrauded contributors to his campaign fund. He was ordered to pay restitution of $39,324.03, which he did by depositing it with the district court. The court then notified contributors that they might be entitled to reimbursement, but only a few stepped forward, and their claims amounted to only $1,850. The question became what to do
The recent decision of the Tenth Circuit in United States v. Speakman, 594 F.3d 1165 (10th Cir.2010), was essentially the same as Pawlinski. The defendant in Speakman was a stockbroker with Merrill Lynch. Without authorization, he withdrew substantial assets from an account belonging to his wife. He was convicted of wire fraud and was ordered by the district court to pay restitution, including $194,205.77 to be paid to the same federal Crime Victims Fund. That amount was the loss suffered by the victim, Mrs. Speakman, after subtracting what she had already recovered. Mrs. Speakman expressly declined further restitution from the defendant, stating that she did not want to deal with him or be subject to his emotional abuse, so the district court ordered that payment of that amount be made to the Crime Victims Fund instead. That was not because the Fund had paid that amount to Mrs. Speakman—it had not—but because the district court felt compelled under the statute to order the defendant to pay restitution for the loss, and it identified the Fund as an appropriate substitute recipient. Id. at 1169. Though the statute authorized a victim to assign her interest in restitution payments to the Fund,
As the district court stated, “had Mr. Bershaw been able to afford missing work without seeking alternative funds to help make ends meet, Defendant would be required to reimburse Mr. Bershaw under
ALARCÓN, Senior Circuit Judge, dissenting in part:
I disagree with the my colleagues’ conclusion that restitution to the CVCP is appropriate here. I would hold that a restitution award for lost income must be paid to the victim of the crime, not to a third party, pursuant to
“Federal courts have no inherent power to award restitution, but may do so only pursuant to statutory authority.” United States v. Follet, 269 F.3d 996, 998 (9th Cir.2001) (citing United States v. Hicks, 997 F.2d 594, 600 (9th Cir.1993)). “The courts have such authority under the Victim and Witness Protection Act of 1982 (“VWPA“), providing for discretionary awards of restitution after conviction for certain crimes,
“[T]he starting point for interpreting a statute is the language of the statute itself.” United States v. Hackett, 311 F.3d 989, 991-92 (9th Cir.2002) (quoting Consumer Prod. Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980)). “Absent congressional direction to the contrary, words in statutes are to be construed according to ‘their ordinary, contemporary, common meaning[s]‘” Id. (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P‘ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
Section
(a)(1) Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense or, if the victim is deceased, to the victim‘s estate.
(2) For the purposes of this section, the term “victim” means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant‘s criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim‘s estate, another family member, or any other person appointed as suitable by the court, may assume the victim‘s rights under this section, but in no event shall the defendant be named as such representative or guardian.
Section
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense.
Section
In United States v. Dayea, 73 F.3d 229 (9th Cir.1995), this Court held that:
Section
3663(b)(2) limits its own applicability to cases in which the offense caused a bodily injury to “a victim.” In such cases, a court may order the defendant to “reimburse the victim for income lost by such victim as a result of such offense.” Section3663(b)(2)(C) . This use of the phrase “the victim” (as opposed, for instance, to “any victim“) indicates that “the victim” of§ 3663(b)(2)(C) must refer to the same “victim” as the first clause of§ 3663(b)(2) .
As this court previously observed: “[W]ith respect to restitution for wages, Congress required the victim himself or herself to show actual losses. There Congress chose the verb ‘reimburse,’ rather than ‘pay,’ and specified that it was the victim who had to have ‘lost’ the income.” United States v. Cliatt, 338 F.3d 1089, 1091 (9th Cir.2003) (citing
In United States v. Wilcox, 487 F.3d 1163 (8th Cir.2007), the Eighth Circuit also interpreted
While the statute defines “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered,” []
§ 3663A(a)(2) , the subsection concerning reimbursement for lost income refers to a specific victim: “[I]n the case of an offense resulting in bodily injury to a victim ... [the defendant shall] reimburse the victim for income lost by such victim as a result of such offense.”18 U.S.C. § 3663A(b)(2)(C) (emphasis added).
The district court stated that “prohibiting the CVCP from recovering the monies it paid [] Bershaw for his lost income would eliminate
In a recent decision, the Tenth Circuit held the plain language of the MVRA requires that a district court award restitution to the person directly and proximately harmed by a defendant‘s crime, instead of to the Crime Victims Fund, even if the victim has renounced her right to receive restitution. United States v. Speakman, 594 F.3d 1165, 1174-77 (10th Cir.2010). The Tenth Circuit held “[f]ederal courts possess no inherent authority to order restitution, and may only do so as explicitly empowered by statute.” Id. at 1175 (citing United States v. Nichols, 169 F.3d 1255, 1278 (10th Cir.1999) and quoting United States v. Hensley, 91 F.3d 274, 276 (1st Cir. 1996)) (internal quotations omitted). Citing
The Seventh Circuit reached a similar result in United States v. Pawlinski, 374 F.3d 536 (7th Cir.2004). In Pawlinski, the district court ordered a defendant, who defrauded campaign contributors, to pay restitution to his victims and deposit the sum owed in the district court. Id. at 537. The district court then notified the defrauded victims that they were entitled to reimbursement. Id. However, some contributors did not collect the amount of their loss. Id. Thus, the district court ordered the unclaimed funds to be paid to the Crime Victims Fund. Id. The defendant appealed from the order that the unclaimed balance be awarded to the Crime Victims Fund. Id. at 538. In reversing the restitution order, the Seventh Circuit held that “[a]n order of restitution under[the MVRA] ... must go to victims of the defendant‘s crimes, and the Crime
As in Speakman and Pawlinski, the district court in the matter sub judice erroneously ordered the defendant to pay restitution to someone other than the person directly and proximately harmed as a result of the commission of an offense for which restitution may be awarded.
The district court‘s decision to require Andrews to reimburse the CVCP directly for the amount it ordered in favor of the victim, has a common sense appeal. Unfortunately, however, the district court not only lacked the power to do so, it also violated Congress‘s express and unambiguous mandate that the defendant shall “reimburse the victim for income lost by such victim.”
In Tennessee Valley Authority v. Hill, 437 U.S. 153, 98 S.Ct. 2279, 57 L.Ed.2d 117 (1978), the Supreme Court explained that, in engaging in statutory interpretation,
[o]ur individual appraisal of the wisdom or unwisdom of a particular course consciously selected by Congress is to be put aside in the process of interpreting a statute. Once the meaning of an enactment is discerned and its constitutionality determined, the judicial process comes to an end. We do not sit as a committee of review, nor are we vested with the power to veto.... We agree with the Court of Appeals that in our constitutional system the commitment to the separation of powers is too fundamental for us to pre-empt congressional action by judicially decreeing what accords with ‘common sense and the public weal.’ Our Constitution vests such responsibilities in the political branches.
Accordingly, I am persuaded that it is our duty to apply