U.S. v. Sunrhodes

• Decision Date: 20 October 1987
• Docket Number: No. 85-1127,85-1127
• Citation: 831 F.2d 1537
• Parties: 24 Fed. R. Evid. Serv. 22 UNITED STATES of America, Plaintiff-Appellee, v. Donna Marie SUNRHODES Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1537

831 F.2d 1537

24 Fed. R. Evid. Serv. 22

UNITED STATES of America, Plaintiff-Appellee, v. Donna Marie SUNRHODES Defendant-Appellant.

No. 85-1127.

United States Court of Appeals Tenth Circuit.

Oct. 20, 1987.

Denise Nau, Cheyenne, Wyo., for defendant-appellant.

David A. Kern, Asst. U.S. Atty. (Richard Stacy, U.S. Atty., Cheyenne, Wyo., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and BROWN, District Judge. ^*

HOLLOWAY, Chief Judge.

Defendant-Appellant Donna Marie Sunrhodes appeals that portion of the judgment and commitment order which orders her to pay $6260 in restitution to the Indian Heath Services Division of the Department of Health and Human Services pursuant to the restitution provisions of the Victim and Witness Protection Act of 1982, 18 U.S.C. Secs. 3579-3580. We affirm.

I

This appeal arises out of an incident that occurred on or about August 17, 1983, in which Virgil Thomas Monroe, an Indian, was shot in the chest and seriously injured by defendant, also an Indian. Defendant does not dispute that she shot Mr. Monroe. Mr. Monroe was taken to a local hospital, where he underwent surgery to repair his wound. The medical practitioners who provided their services to Mr. Monroe presented their statements to the Indian Health Services Division of the Department of Health and Human Services (IHS) for payment. The IHS paid a total of $6,260.75 to these providers.

On October 26, 1984, an indictment was returned charging defendant with one count of assault resulting in serious bodily injury to an Indian in Indian country, in violation of 18 U.S.C. Secs. 113(f) and 1153, an offense punishable by ten years' imprisonment and a $10,000 fine. At her arraignment defendant pled guilty to a violation of 18 U.S.C. Secs. 113(c) and 1153, assault on an Indian in Indian country with intent to do bodily harm, punishable by a sentence of five years' imprisonment and a $1,000 fine.

On December 31, 1984, there was served and filed a notice of a restitution and sentencing hearing, originally set for January 9, 1985. Defendant received this notice on January 2, 1985. I R. 18a. On January 3, defendant's attorney filed a motion for discovery, asking the Government to afford her access to medical records, bills and any other documents relevant to the victim's injuries, and that the court order this discovery to be provided at no cost to defendant because she was indigent. Defense counsel also moved for a 30 day continuance, asserting that defendant had an obligation to prepare facts as to her ability to pay, develop the facts relating to restitution, and explore the amount of restitution in dispute prior to the hearing, and claiming that seven days was not sufficient time for her to meet these burdens.

On January 4 the trial judge denied the motions. He stated that the case was referred for a presentence investigation, that the probation officer had prepared a full and complete record of expenses which was available to the defendant, and that the court normally does not allow defendants to engage in discovery in criminal cases after entry of a guilty plea. I R. 24-25.

The restitution hearing took place on January 11 before the magistrate. Defendant's attorney renewed her motion for a continuance and asked that the Government be barred from seeking restitution on the ground she attempted to contact the U.S. Attorney's office to develop the facts prior to the sentencing hearing but was unsuccessful because that office would not return her calls. The prosecution attorney responded that the probation office file was available so that defense counsel could see it to verify its accuracy, and that, in fact, she had done so. The magistrate reserved ruling on the motion until after he had heard the evidence. He denied it at the end of the hearing.

Defense counsel objected at the hearing to the Government's proffer of the telephone testimony of one of its witnesses, Mr. Kinsey, Contract Health Specialist with IHS, on Confrontation Clause and hearsay grounds. The magistrate overruled the objection, stating that the Government could have presented the witness' testimony through hearsay, but that defendant had been allowed to cross-examine the witness over the telephone, fully protecting the defendant's rights.

Mr. Kinsey testified by telephone as to the amount that the IHS had paid on behalf of Mr. Monroe. He said that a physicians' group in Riverton, Wyoming, near Mr. Monroe's reservation, had presented a bill for $32.00 for treatment of thoracic pain pursuant to a gunshot wound to the chest, that the hospital to which Mr. Monroe had gone after the incident had presented a bill for $110.90 for emergency room services on August 28, 1983 and a second bill for $5,347.84 for his hospital stay from August 17 to August 25, and for treatment of his gunshot wound, and that the surgeon who removed the bullet presented a bill for $770.00.

On cross-examination, Kinsey testified that the IHS pays health care providers directly to furnish services to eligible Indians and never pays Indians directly, that Mr. Monroe had never designated IHS to pay for his costs, and that, since he had never communicated directly with Mr. Monroe, he had no direct knowlege of Mr. Monroe's injuries. He said that all of the charges were "as a direct result of the injury" but stated he was not a physician and could not testify about whether the itemized amounts involved were unnecessary or unrelated to the gunshot wound. III R. 20, 22, 25. He testified that each of the providers has a contract with IHS and certifies under penalty of perjury that the charges are "customary and necessary and reasonable." He testified that, although IHS does spot checks to determine if charges are necessary, IHS did not check the charges involved here. III R. 23. Mr. Kinsey testified that although the providers in Mr. Monroe's case had made the appropriate certifications of reasonableness and necessity, this did not indicate that these injuries were received only as a result of the gunshot wound. III R. 27.

The Government offered a letter from Mr. Kinsey to Mr. Mills of the Probation and Parole Office summarizing these expenses. Mr. Mills testified that he supervised the presentence report in this case. He learned through his investigation that Mr. Monroe had received treatment for his gunshot wound from various medical providers in the Riverton area, that IHS had paid for this treatment, and that the letter from Mr. Kinsey listed these expenses. Mills further testified that Monroe told him that he had received treatment from the IHS for his gunshot wound and had completely recovered at no expense to himself. He said that any money IHS would recover for treatment, as restitution for example, would go back into the IHS budget or to the Government's general fund. III R. 34.

Mr. Mills also testified about Ms. Sunrhodes' financial condition. She had very few assets and liabilities. Her assets included some personal property and an interest in some tribal land on the reservation. She had three children but was not obligated to pay for their upkeep or even her own food and shelter because her mother had legal custody of her children and she lived with her mother. Finally, he testified that Ms. Sunrhodes received a per capita check but that at the time of his interview with her in November 1984, she was receiving only $98 of this because $136 was being used to make payments on a loan she had taken out. The remaining balance on the loan was $280 at the time he interviewed her and it would probably have been paid off by the time of the hearing. He thought Ms. Sunrhodes could probably afford a $136 deduction from her per capita payment and that to pay off $6,260.75 would require 48 payments of approximately this amount. III R. 34-38.

Ms. Sunrhodes testified that she had been living with her mother at the time of her interview with Mr. Mills, but was now living on her own in Riverton. Her per capita payment had been reduced from $230 to $200 effective January 1, 1985 and in January she only received $66 out of which she paid as much of her food and clothing expense as she could. Her $66 was not enough to pay for her food and clothing and she had to borrow the difference from relatives. She could not afford an attorney when she was arrested for the shooting of Mr. Monroe and she was being represented by a court-appointed attorney. She said her per capita changes every year.

II

The Magistrate entered his order recommending restitution on the basis of these findings.

Virgil Monroe was a victim of a gunshot wound to his chest on August 17, 1984 which required extensive medical treatment. Various medical services were provided to him beginning on August 17. Two physicians at Western Family Care Clinic rendered emergency room treatment for services in the amount of $32. The Riverton Memorial Hospital rendered emergency services in the amount of $110.90 and inpatient services from August 17 to August 25, 1984 in the amount of $5,347.85. Dr. Brohm provided Mr. Monroe surgical and other treatment services in the amount of $770. The total cost of medical services provided to Monroe was $6,260.75.

The itemized medical services were paid by the Department of Health and Human Services, Public Health Services, Health Services Administration, Wind River Service Unit, which provides free health services to all eligible Indians residing on the Wind River Indian Reservation. Monroe suffered no loss of income or other monetary loss.

The evidence was found to have established that all of the above charges for medical service were reasonable and necessary and related solely to Monroe's injuries sustained from the gunshot wound. The Indian Health Services (IHS) operates on a budget of some four million dollars and it was from this that Mr. Monroe's medical services were paid for. By so doing IHS lost over $6000 from its budget, which is...