United States v. Harwood

Decision Date13 February 2012
Docket NumberNo. CR 10–2737 JB.,CR 10–2737 JB.
PartiesUNITED STATES of America, Plaintiff, v. Herbert HARWOOD, Defendant.
CourtU.S. District Court — District of New Mexico

OPINION TEXT STARTS HERE

Kenneth J. Gonzales, United States Attorney, Kyle T. Nayback, Assistant United States Attorney, Albuquerque, NM, for the Plaintiff.

John V. Butcher, Assistant Federal Public Defender, Federal Public Defender's Office, Albuquerque, NM, for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's: (i) Objections to Restitution, filed August 24, 2011 (Doc. 29)(“First Objections”); and (ii) Objections to the Request for Restitution and Memorandum in Support, filed November 1, 2011 (Doc. 35)(“Second Objections”). The Court held an evidentiary hearing on October 18, 2011. The primary issue is whether the Court should order Defendant Herbert Harwood to pay restitution for the Navajo healing services that medicine man Joe James provided or for the Geico Insurance Company settlement paid to the deceased victim's estate, and, if so, how much the Court should order Harwood to pay. The Court will sustain the objections. The Court determines that, because Harwood did not commit a crime of violence, the Victim and Witness Protection Act of 1982, 18 U.S.C. § 3663 (“VWPA”), rather than the Mandatory Victim's Restitution Act, 18 U.S.C. § 3663A (“MVRA”), applies to this case. The Court will not exercise its discretion to award restitution for expenses related to James' services, because the United States has not met its burden of establishing that those expenses are compensable under the VWPA. Additionally, the Court will not exercise its discretion to award restitution for expenses related to the $25,000.00 Geico insurance settlement because the United States has not met its burden of establishing that those expenses are recoverable under the VWPA. The Court will order Harwood to pay $6,340.00 in restitution. The Court will order that Harwood should pay $840.00 to Karen Pete, the representative of King's estate, before paying the remaining $5,500.00 to the Crime Victims Reparation Commission.

FACTUAL BACKGROUND

On March 16, 2007, at approximately 4:33 p.m. the Navajo Nation Police and a Criminal Investigator 1 were dispatched to a motor vehicle collision on Navajo Route 36, at mile post 25, in Upper Fruitland, New Mexico. See Presentence Investigation Report ¶ 6, at 3 (disclosed May 9, 2011)(“PSR”). A three-car collision with one fatality was reported. See PSR ¶ 6, at 3. The suspect vehicle was described as a white one-ton Dodge Dually truck; it was the tail vehicle. See PSR ¶ 7, at 3. The second vehicle was a green Chevrolet Blazer; it was the middle vehicle. See PSR ¶ 7, at 3. The third vehicle was a black Mercury Mountaineer; it was the lead vehicle. See PSR ¶ 7, at 3. Three people occupied the Dually; they were identified as: (i) Harwood; (ii) Harold Johnson, Jr., age 17; and (iii) Peter Chiquito, age 21. See PSR ¶ 8, at 3. Johnson and Chiquito fled the scene of the accident, and it was not initially clear who was driving the Dually. See PSR ¶ 8, at 3. Corena Peshlaki, Miranda M. Upshaw, Neilson Upshaw, Victoria Fuentes, and Richard King, Jr. occupied the Blazer. See PSR ¶ 8, at 3. Melvin and Marita Begaye were in the Mountaineer. See PSR ¶ 8, at 3.

Witnesses reported that the Dually was traveling at a high rate of speed and crashed into the back of the Blazer. See PSR ¶ 9, at 3. The Dually pushed the Blazer into the Mountaineer before the driver lost control and went off the highway. See PSR ¶ 9, at 3. King was seated in the Blazer's rear passenger and was killed upon impact. See PSR ¶ 9, at 3. The Office of Medical Investigations determined that King's cause of death was craniocerebral injuries as the result of the March 16th automobile accident. See PSR ¶ 13, at 4. The other four Blazer occupants were transported to the hospital with the following injuries: (i) Fuentes reported pain, but had no noted injuries; (ii) N. Upshaw received a laceration to the head and a possible nasal fracture; (iii) Peshlaki experienced neck and back pain; and (iv) M. Upshaw was not injured. See PSR ¶¶ 9–10, at 3–4. Witnesses observed two individuals, later identified as Johnson and Chiquito, exiting the Dually and fleeing the accident scene. See PSR ¶ 12, at 4. Harwood was arrested at the scene and charged with public intoxication. See PSR ¶ 12, at 4. He was released from custody the same day and asserted that he was not the Dually's driver. See PSR ¶ 12, at 4. No blood alcohol test was administered. See PSR ¶ 12, at 4.

During the accident investigation, officers discovered empty liquor bottles in the Dually's cabin area. See PSR ¶ 14, at 4. The Blazer did not contain any alcohol. See PSR ¶ 14, at 4. Officers obtained receipts for liquor purchases that Chiquito made on March 16, 2007, at 3:55 p.m. and 4:04 p.m. See PSR ¶ 14, at 4.

On March 17, 2007, a Criminal Investigator from the Navajo Nation interviewed Harwood, and Harwood again denied driving the Dually at the time of the accident. See PSR ¶ 15, at 4. Harwood asserted that he picked up a hitchhiker, Johnson, as he was traveling out of Farmington, New Mexico. See PSR ¶ 15, at 4. Johnson wanted to go into Farmington to buy some beer, and, although Harwood stated he was reluctant, Harwood took Johnson to purchase beer. See PSR ¶ 15, at 4. Harwood informed the Criminal Investigator that, after Johnson purchased and consumed the beer, they drove to Upper Fruitland. See PSR ¶ 16, at 5. Harwood denied drinking any beer while driving and asserted that he told Johnson to exit the vehicle, but Johnson refused. See PSR ¶ 16, at 5. Harwood drove to the Navajo Tribal Utility Authority to pay a bill around 1:20 p.m., while Johnson waited in the truck. See PSR ¶ 16, at 5. After paying the bill, Harwood and Johnson drove around Upper Fruitland. See PSR ¶ 16, at 5. While driving, Harwood and Johnson encountered Johnson's friend, Chiquito. See PSR ¶ 17, at 5. Harwood stated that he tried to tell Johnson and Chiquito that he needed to go home, but they refused to exit his vehicle. See PSR ¶ 17, at 5. Harwood drove them to his father's farm in Upper Fruitland, where they parked, and Harwood admitted to drinking two beers. See PSR ¶ 17, at 5. Harwood told the Criminal Investigator that Johnson and Chiquito wanted to be dropped off, but that he refused to drive, because he had been drinking. See PSR ¶ 18, at 5. Chiquito then offered to drive; Harwood stated that he was in the back seat behind Johnson, who was in the passenger seat. See PSR ¶ 18, at 5. Harwood recalled telling Chiquito not to speed, but never saw the vehicle in front of him. See PSR ¶ 18, at 5. Harwood remembered that, when Johnson opened the door after the accident, he exited the vehicle and saw a woman on the ground. See PSR ¶ 19, at 5. He stated that he ran to help the woman, and saw Johnson and Chiquito running away from the scene. See PSR ¶ 19, at 5. Harwood indicated that the Dually belonged to him and that he had purchased it from his brother two weeks before the accident, although they had not yet changed the names on the title. See PSR ¶ 20, at 5.

On March 21, 2007, the Criminal Investigator interviewed Johnson. See PSR ¶ 21, at 5. Johnson stated that Harwood picked him up on the side of the road leading out of Farmington. See PSR ¶ 21, at 5. Johnson said that Harwood offered him a beer when he entered the Dually and that he saw a six-pack and a forty-ounce beer on the truck's floor. See PSR ¶ 21, at 5. Johnson stated that he and Harwood drove around drinking beer, and recalled that Harwood said he had nothing better to do because he had the day off. See PSR ¶ 21, at 5. Johnson recalled picking his friend Chiquito up later in the afternoon. See PSR ¶ 21, at 5. Johnson stated that they then purchased more liquor in Farmington and continued drinking. See PSR ¶ 21, at 6. Johnson did not remember what happened before or during the crash. See PSR ¶ 21, at 6. He recalled an unknown female waking him up and then jumping out of the passenger window of the truck. See PSR ¶ 21, at 6. Johnson stated that Harwood was the only one who drove the Dually that day. See PSR ¶ 21, at 6.

On March 22, 2007, the Criminal Investigator interviewed Chiquito. See PSR ¶ 22, at 6. Chiquito recalled that, when Harwood and Johnson picked him up, they were both “really” intoxicated, with noticeably slurred speech and glossy eyes. PSR ¶ 22, at 6. Chiquito stated that he got into the vehicle and drove to the liquor store. See PSR ¶ 22, at 6. Chiquito purchased a six-pack of Corona lite beer and a three-quart bottle of Smirnoff vodka at a convenience store, but because Harwood wanted regular Corona, they bought another six-pack. See PSR ¶ 22, at 6. Chiquito recalled that Harwood was taking him home and that Harwood was intoxicated. See PSR ¶ 22, at 6. Chiquito stated that, at one point, Harwood was driving on the wrong side of the road and that, as they drove along Navajo Route 36, the car crashed. See PSR ¶ 23, at 6. Chiquito stated that, when he saw Johnson running, he followed. See PSR ¶ 23, at 6.

On March 22, 2007, the Criminal Investigator interviewed a witness, Jonathan Ray Smith, who recalled that Johnson and another man, later identified as Harwood, came to his home on March 16, 2007. See PSR ¶ 24, at 6. He recalled that Harwood was driving and Johnson was the passenger. See PSR ¶ 24, at 6. Smith stated that he did not go with Harwood and Johnson, because they were “pretty” intoxicated. PSR ¶ 24, at 6.

PROCEDURAL BACKGROUND

On September 29, 2010, a federal grand jury indicted Harwood for involuntary manslaughter under 18 U.S.C. §§ 1153 and 1112. See Indictment, filed September 29, 2010 (Doc. 1). On March 11, 2011, Harwood entered into a plea agreement and pled guilty to the Indictment. See Plea Agreement ¶ 3, at 2 (Doc. 21). The Indictment charges:

On or about March 16, 2007, in San Juan County, in...

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