U.S. v. Cliatt, 02-10458.

• Decision Date: 11 August 2003
• Docket Number: No. 02-10458.,02-10458.
• Citation: 338 F.3d 1089
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timmy CLIATT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1089

338 F.3d 1089

UNITED STATES of America, Plaintiff-Appellee, v. Timmy CLIATT, Defendant-Appellant.

No. 02-10458.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2003 — San Francisco, California.

Filed August 11, 2003.

Pamela J. Byrne, Assistant Federal Defender, Honolulu, Hawaii, for the defendant-appellant.

Leslie E. Osborne, Jr., and Craig H. Nakamura, Assistant United States Attorneys, Honolulu, Hawaii, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii; Susan Oki Mollway, District Judge, Presiding. D.C. No. CR-01-00481-SOM.

Before: Susan P. GRABER, Kim McLane WARDLAW, and Jay S. BYBEE, Circuit Judges.

OPINION

GRABER, Circuit Judge:

Defendant Timmy Cliatt pleaded guilty to the attempted voluntary manslaughter of his wife, who was an active-duty member of the United States Army. As a result of the injuries she sustained in the attack by her husband, Ms. Cliatt received medical care, which was given free of charge because of her military service.

In addition to sentencing Defendant to a term of incarceration and supervised release, the district court ordered restitution under the Mandatory Victims Restitution Act of 1996 ("MVRA"), 18 U.S.C. § 3663A, to the Tripler Army Medical Center ("Tripler"), which had treated Ms. Cliatt. Defendant appeals only the imposition of restitution. We hold that, under the MVRA, a district court properly orders restitution to be paid to a third party when that party bears the cost of providing necessary medical care to a victim of a covered offense who suffered bodily injury as a result of the offense. Accordingly, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On November 12, 2001, Defendant repeatedly stabbed his wife with a large knife, nearly killing her. On the day of the attack, Ms. Cliatt received treatment, including emergency surgery to repair her severed right jugular vein, at the civilian Queen's Medical Center. Later she was transferred to Tripler, where she obtained further services, including additional surgery, occupational therapy, plastic surgery, and mental health treatment. Her treatment generated $22,609.36 in expenses for Tripler. Because she was an active-duty member of the United States Army, Ms. Cliatt received her medical care free of charge.¹

Defendant pleaded guilty to attempted voluntary manslaughter, in violation of 18 U.S.C. §§ 7, 1112, and 1113. The district court sentenced him to 41 months' incarceration, to be followed by three years of supervised release.

In addition, Tripler sought restitution under the MVRA. Following a lengthy sentencing hearing dedicated to the question of restitution, the district court held that Tripler was a "victim" under the MVRA and, thus, was entitled to mandatory restitution. The district court sentenced Defendant to $26,130.26 in restitution payable to Tripler.² Defendant brought this timely appeal challenging that award.

STANDARD OF REVIEW

We review de novo the legality of a restitution order. United States v. Hackett, 311 F.3d 989, 991 (9th Cir.2002).

DISCUSSION

The district court justified its award of restitution on the theory that Tripler was itself a victim of Defendant's criminal act. We need not address the soundness of that holding, because Tripler is entitled to restitution under the MVRA whether or not it was a victim. Accordingly, we may affirm on this alternate ground not relied upon by the district court. Massachusetts Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 481, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976).

A. The MVRA requires restitution to a party that pays a victim's necessary medical expenses in the first instance.

The MVRA requires that, for certain classes of crimes, the district court order the defendant to pay restitution. Four predicates for such restitution are undisputed in this case:

1. The MVRA covers Defendant's conviction for attempted voluntary manslaughter. See 18 U.S.C. § 3663A(c)(1)(B) ("This section shall apply in all sentencing proceedings for convictions of, or plea agreements relating to charges for, any offense ... in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.").

2. Ms. Cliatt is a "victim" within the meaning of the MVRA, because she is "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered." Id. § 3663A(a)(2).

3. The offense resulted in bodily injury to the victim.

4. That bodily injury resulted in necessary medical and related professional services and necessary physical and occupational therapy and rehabilitation.

If Ms. Cliatt had been responsible to pay for her own care, the restitution award obviously would be proper. The wrinkle here is that, because she was in the Army, Ms. Cliatt did not have to pay any of her own medical expenses. This wrinkle need not detain us long, however, because the drafters of the MVRA envisioned, and expressly provided for, a scenario in which the physical victim of a covered crime is not the one who suffers the financial consequences.

In the case of an offense resulting in bodily injury to a victim, the defendant must:

(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[.]

Id. § 3663A(b)(2) (emphasis added).

The emphasized text is important, because it is carefully worded to require a defendant to "pay an amount equal to the cost" of necessary medical and similar care, id. § 3663A(b)(2)(A), (B) — not, for example, to "reimburse the cost incurred by the victim" for medical and similar care. This wording expresses Congress' intention that a defendant must, in every case involving bodily injury, pay what it costs to care for the victim, whether or not the victim paid for the care or was obligated to do so. By contrast, with 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. Id. § 3663A(b)(2)(C). We must give effect to these distinctions. See Solomon v. Interior Reg'l Hous. Auth., 313 F.3d 1194, 1199 (9th Cir.2002) ("When Congress includes a provision in one part of a statute but excludes it in another, we deem the difference intentional and assign meaning to the omission."). We conclude that, under 18 U.S.C. § 3663A(b)(2), when the covered offense resulted in bodily injury to a victim, the court must require the defendant to "pay an amount equal to the cost" of necessary medical and similar care rendered to the victim.

Our conclusion is bolstered by our analysis in United States v. Follet, 269 F.3d 996 (9th Cir.2001). There, we examined the interaction between 18 U.S.C. § 3664³ and the statute creating the right to restitution in that case, 18 U.S.C. § 2248. Follet, 269 F.3d at 999-1000. Specifically, we looked to the precise terms of § 2248, which states that "`any costs incurred by the victim'" are subject to restitution orders. Id. (quoting 18 U.S.C. § 2248(b)(3)). We reasoned that, because a cost for which the victim will never have to pay is not "incurred" by the victim, such costs are not reimbursable under § 2248. Id. at 1000. We applied the same analysis to § 2248(b)(1); it refers to the "amount of the victim's losses," which is defined in § 2248(b)(3) as "any costs incurred by the victim." Id.

We acknowledged in Follet that other statutory provisions (including § 3663A) are more expansive in their award of restitution:

That this particular restitution provision limits the restitution that can be ordered to the cost of services the victim has some individual obligation to pay for (even if someone else has an obligation to the victim to reimburse her for that cost) is all the more clear in light of the fact that the language used appears to have been carefully chosen. Other restitution provisions use different language, and may well — we have found no case law on the question — permit orders of restitution to governmental or charitable institutions that provide covered services to the victim.

... [I]n defining the appropriate amount of a restitution order, § 3663 permits courts to order not the costs incurred by the victim but "an amount equal to the cost of necessary ... psychological care." § 3663(b)(2)(A) (emphasis added); see also § 3663A(b)(2)(A) (same language). That locution, unlike the pertinent phrase in § 2248, appears clearly to allow restitution to reflect the value of services provided, no matter who is obligated to pay for them.

Id. at 1000-01 (second omission in original).

To summarize, subparagraphs (A) and (B) of § 3663A(b)(2) require restitution "to reflect the value of services provided, no matter who is obligated to pay for them." Id. at 1001. Nothing in § 3664 detracts from that conclusion.

Under § 3664, the court must order restitution to be paid directly to an insurer (or other source of compensation) if there is a "victim" within the meaning of the MVRA and if the third party compensated the victim for some or all of the victim's loss. 18 U.S.C. § 3664(j)(1). Defendant argues that Tripler is not entitled to restitution under this provision because Ms. Cliatt did not suffer a "loss" as the text requires. He reasons that, because Ms. Cliatt was in the armed forces, the treatment for her wounds was provided free of charge. Thus, Defendant suggests, Ms. Cliatt did not suffer any "loss" and, a fortiori, Tripler did not "compensate" her (and is not eligible for restitution) und...