UNITED STATES of America, Plaintiff-Appellee v. George THUNDERHAWK, Defendant-Appellant
No. 16-1914
United States Court of Appeals, Eighth Circuit.
Submitted: February 7, 2017. Filed: June 21, 2017
860 F.3d 633
Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
III. CONCLUSION
Summary judgment for the defendants was proper. Affirmed.
Counsel who presented argument on behalf of the appellant was Paul Henry Myerchin, of Bismarck, ND.
Counsel who presented argument on behalf of the appellee was Gary Lee Delorme, AUSA, of Bismarck, ND.
In 2014, a jury found George Thunderhawk guilty of abusive sexual contact of V.R.B., a child under 12 years of age, in violation of
(1). Restitution is mandatory for the offense of abusive sexual contact in violation of
At Thunderhawk‘s sentencing, V.R.B.‘s mother, Lillian Plenty Chief, testified that V.R.B. had incurred significant medical expenses as a result of Thunderhawk‘s offense. The district court advised the parties, “obviously there‘s some restitution that‘s owed in this case” and scheduled a hearing to determine the amount of restitution to be held sixty days after the sentencing hearing. Before the restitution hearing, Thunderhawk appealed. The district court issued an order cancelling the hearing and staying final resolution of the restitution issue. On February 4, 2016, after our mandate issued, the court sua sponte scheduled the hearing for February 29. After a status conference, the court canceled the hearing, finding no need for testimony in addition to that presented at sentencing but providing the parties ten days to submit additional evidence. The court then entered the restitution order being appealed.
Thunderhawk argues the district court lost authority to order restitution when it failed to comply with
In Dolan, the plea agreement stated that restitution “may be ordered,” the presentence report noted that restitution was required, and the district court‘s judgment provided that “restitution is applicable” but was not ordered “at this time” because the court had no information regarding “payments that may be owed.” Id. at 608. Here, the district court noted “obviously there‘s some restitution that‘s owed in this case” but kept “the subject of restitution open for a period of 60 days” to give the parties an opportunity to submit memoranda and additional medical evidence on the amount that should be owed. During those sixty days, Thunderhawk appealed, depriving the court of jurisdiction to proceed while the appeal was pending and arguing unsuccessfully on appeal that “restitution is criminal punishment [that] must be proved to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).” Thunderhawk, 799 F.3d at 1209. We conclude that the holding in Dolan that the district court retained power to order restitution clearly applies. See United States v. Adejumo, 848 F.3d 868, 870 (8th Cir. 2017). Because Thunderhawk was on notice the court would order restitution and does not argue he was prejudiced by delay, the district court did not abuse its discretion in awarding restitution. See United States v. Zaic, 744 F.3d 1040, 1044 (8th Cir. 2014); United States v. Chalupnik, 514 F.3d 748, 752 (8th Cir. 2008) (standard of review);
(2). Thunderhawk next argues that the government failed to meet its burden to prove that his offense was the proximate cause of V.R.B.‘s medical bills. The statute provides that the order of restitution “shall direct the defendant to pay ... the full amount of the victim‘s losses,” determined in accordance with
Thunderhawk assaulted V.R.B. in 2008. At trial, V.R.B. testified that she did not report the assault until 2013 because she was scared to tell anyone it happened and believed the assault was her own fault. At sentencing, V.R.B. submitted a victim impact statement stating that, since reporting the assault, she has been hospitalized two times for attempted suicide, two other times for psychological issues, and has been prescribed medication to help her
Thunderhawk argued that V.R.B. faced other difficulties that might have contributed to her hospitalizations and treatment five and six years after the assault. Her father died from alcohol abuse in 2009. Plenty Chief had problems with alcohol abuse, and at times was not home for V.R.B., who attended boarding school because she was having trouble at her local school. Noting that it “carefully reviewed the entire record, a transcript of the sentencing hearing in which testimony was submitted regarding restitution, the parties’ filings, and relevant case law,” the district court found by a preponderance of the evidence that Thunderhawk‘s offense proximately caused V.R.B.‘s medical expenses. We review that finding for clear error. See Chalupnik, 514 F.3d at 752.
On appeal, Thunderhawk argues that, given the lapse of time between his assault and the medical expenses at issue, the government could not meet its burden absent medical records or expert testimony from either a psychiatrist, psychologist, or social worker showing a causal relationship between the crime and the medical services V.R.B. received. The district court correctly noted that it could rely on victim testimony in calculating provable loss. See United States v. Emmert, 825 F.3d 906, 911 (8th Cir. 2016), cert. denied, 137 S.Ct. 1349 (2017). “[T]he government may meet its burden of proof by introducing ... a sworn statement from the victim outlining the losses sustained as a result of the crime.” United States v. Adetiloye, 716 F.3d 1030, 1039 (8th Cir. 2013) (citation omitted), cert. denied, 134 S.Ct. 1775 (2014). Here, Thunderhawk did not take advantage of the district court‘s decision to delay a final decision on the amount of restitution to give the parties an opportunity to submit additional evidence on the question of causation. Absent contrary evidence from Thunderhawk, Plenty Chief‘s testimony under oath, combined with the other record evidence, was sufficient to meet the government‘s burden. The district court did not clearly err in determining Thunderhawk owed the full amount of restitution Plenty Chief requested.
(3). Finally, Thunderhawk argues his economic circumstances warranted nominal restitution payments. Thunderhawk urged the district court to order nominal payments, arguing his economic circumstances prohibited him from paying the full restitution award in the foreseeable future. Citing the PSR, he noted that “he has no assets or liabilities, and he was financially supported by his wife‘s $800 per month social security check.” Thunderhawk asserted that he could not receive social security benefits while incarcerated and likely would not receive them upon release.
A district court “may not decline to issue an order [of restitution] under this section because of ... the economic circumstances
A restitution order may direct the defendant to make nominal periodic payments if the court finds from facts on the record that the economic circumstances of the defendant do not allow the payment of any amount of a restitution order, and do not allow for the payment of the full amount of a restitution order in the foreseeable future under any reasonable schedule of payments.
The district court‘s Amended Judgment in a Criminal Case (a standard form judicial document) provided that Thunderhawk “must make restitution” to Lillian Plenty Chief in the amount of $14,967.47. The Schedule of Payments section specified that the district court, “[h]aving assessed the defendant‘s ability to pay, [orders that] payment of the total criminal monetary penalties is due as follows.” The district court checked Box A, which provided: “Lump sum payment of $15,067.47 [which includes the $100.00 special assessment] due immediately, balance due ... in accordance [with] F below.” The special instructions entered in Box F are that, “[w]hile on supervised release, the Defendant shall cooperate with the Probation Officer in developing a monthly payment plan consistent with a schedule of allowable expenses provided by the Probation Office.”
We have emphasized that the statute imposes the duty on the court to specify the restitution payment schedule. It may not delegate that function to the Bureau of Prisons or to the Probation Office. See United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir. 2001). Here, the district court did not shirk that duty, although the ambiguous Judgment form does not fit readily with the requirements of
We further conclude the district court did not abuse its discretion or clearly err in determining that Thunderhawk‘s economic circumstances, while uncertain, are not so dire as to warrant a finding that
The Amended Judgment of the district court is affirmed.