U.S. v. Visinaiz

• Decision Date: 16 November 2004
• Docket Number: No. 2:03-CR-00701 PGC.,2:03-CR-00701 PGC.
• Parties: UNITED STATES of America, Plaintiff, v. Cruz Joaquin VISINAIZ, Defendant.
• Court: U.S. District Court — District of Utah

344 F.Supp.2d 1310

UNITED STATES of America, Plaintiff, v. Cruz Joaquin VISINAIZ, Defendant.

No. 2:03-CR-00701 PGC.

United States District Court, D. Utah, Central Division.

November 16, 2004.

Carlos Esqueda, Salt Lake City, UT, for Plaintiff.

Theodore Weckel, Salt Lake City, UT, for Defendant.

MEMORANDUM OPINION AND ORDER AWARDING RESTITUTION

CASSELL, District Judge.

On August 26, 2004, defendant Cruz Visinaiz was convicted by the jury of second-degree murder in the death of Ms. Clara M. Jenkins and is now before the court for sentencing. In federal criminal cases — including homicide cases — the court is required to award restitution to the victim for lost income resulting from the offense under the Mandatory Victim Restitution Act.¹ Under this Act, judges are charged with determining all disputed facts relevant to a calculation of restitution, including the determination of the victim's lost income. Because an award of restitution may involve solely judicial fact-finding, the MVRA is arguably open to constitutional attack in the wake of the Supreme Court's decision in Blakely v. Washington² last Term that the Sixth Amendment requires jury fact-finding in the application of sentencing guidelines. Unsurprisingly, Mr. Visinaiz makes just this attack in his briefing on the issue.

This court previously concluded in United States v. Croxford³ that Blakely does not extend to requiring jury fact-finding in determining restitution under the MVRA. Since the Croxford ruling, the Tenth Circuit has provided instruction on this issue and the court has had the opportunity to review the briefing in this case. In light of this new information and other research conducted by the court, the court reaffirms its earlier ruling that jury fact-finding is not required for restitution awards. The court first reaffirms its conclusion that the MVRA requires an award of lost income in restitution cases. The court next concludes that the Sixth Amendment right to a jury trial, as expansively interpreted in Blakely, does not extend to restitution awards. Two separate justifications support this conclusion. First, restitution is not a penalty and therefore is simply not covered by the Sixth Amendment. Second, as a matter of historical practice dating to well before the drafting of the Constitution, restitution has traditionally been determined by the judge, not the jury. In light of this history, the Sixth Amendment should not be read as creating a need for jury fact-finding on restitution issues.

FACTUAL BACKGROUND

Ms. Jenkins was originally reported missing by her son, Johnny Jenkins, Sr., on April 15, 2003. Mr. Visinaiz had contacted Mr. Jenkins wondering where Ms. Jenkins was and later told Mr. Jenkins that he had last seen Ms. Jenkins shortly after midnight on Saturday, April 12, 2003, when she left his house on foot following an argument. Because he was the last person to see Ms. Jenkins before she went missing, and because it was well known that the sixty-year-old Ms. Jenkins had a very hard time walking, Mr. Visinaiz became an early focus of the investigation. Ultimately, the police found Ms. Jenkins' blood splattered on the wall in Mr. Visinaiz' home and smeared on the rear hatch door of Mr. Visinaiz' van.

Ms. Jenkins' body turned up at the beginning of May, 2003, floating in the White River near Ouray, Utah. The body had evidently been weighted down: it was tied by a cord to three concrete cinder blocks. An autopsy revealed a minimum of four head fractures, and the medical examiner concluded that Ms. Jenkins had died of blunt force trauma to her head. Mr. Visinaiz then admitted that he struck Ms. Jenkins three times with a piece of firewood, but claimed it was in self-defense because Ms. Jenkins was threatening to hit him with a drinking glass. Mr. Visinaiz further admitted that he initially hid Ms. Jenkins' body in his crawlspace and later transported it to the river where he weighted down and dumped the body. A jury convicted Mr. Visinaiz of second-degree murder in Ms. Jenkins death, and he now awaits sentencing by this court.

As a part of this sentence, the government seeks restitution for Ms. Jenkins' lost future income of $473,400. The government's calculation assumes that Ms. Jenkins would have lived another 15 years and received $1,500 per month from the Ute Tribe in retirement benefits, $650 per month in Ute Tribal dividends, $480 per month in social security income, and an average amount for Ute oil and gas dividends. Mr. Visinaiz has challenged this award, arguing that lost income awards are not proper in homicide cases and that a jury, not the court, must determine the facts underlying the award.

LEGAL ANALYSIS

I. The MVRA Requires Restitution for Lost Income In Homicide Cases

Before turning to the constitutional questions surrounding the fact-finding apparatus for restitution awards, it is useful to briefly review why restitution is required in this case. Under the MVRA, the court is obligated to award restitution for various categories of losses, including "income lost" by the victim. The MVRA directs:

The order of restitution shall require that such defendant —

. . .

(2) in the case of an offense resulting in bodily injury to a victim —

(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 non-medical 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;

(3) in the case of an offense resulting in bodily injury that results in the death of the victim, pay an amount equal to the cost of necessary funeral and related services.⁴

Earlier this year, the court issued an extensive opinion concluding that the lost income provision of the MVRA mandates that the court award lost income in homicide cases. In two homicide cases — United States v. Bedonie and United States v. Serawop⁵ — the court explained that lost income restitution is mandatory for homicide no less than for other violent crimes. To reach any other conclusion would flout the plain language of the MVRA. The statute expressly directs judges to require a convicted defendant to pay restitution for income lost "in the case of an offense resulting in bodily injury to a victim."⁶ An offense that results in death would plainly be an offense resulting in bodily injury. Death is simply the most serious form of bodily injury and in no way eliminates the appropriateness of a restitution award. Not to award lost income restitution "would defy logic and would lead to the perverse result that murderers would usually pay markedly less restitution than criminals who only assault and injury their victims."⁷ Such a result would also "contradict a core purpose of restitution, which is to `ensure that the offender realizes the damage caused by the offense and pays the debt owed to the victim as well as to society.'" ⁸

Moreover, the court explained, reading the statute to block lost income awards in homicide cases would conflict with the clear intention of the MVRA: to force offenders to" `pay full restitution to the identifiable victims of their crimes.'"⁹ Income is plainly one of the things lost by victims when they are murdered. Finally, the court noted that the Tenth Circuit in United States v. Checora ¹⁰

had adopted the view that lost income restitution was appropriate in homicide cases.¹¹

In this case, Mr. Visinaiz invites the court to reconsider its ruling in Bedonie and Serawop that lost income awards are required in homicide cases. The court finds that there is no good reason for reconsideration. To the contrary, a recent development since then supports the court's conclusion. In particular, legislative history of the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act.¹² reveals that Congress endorses this court's interpretation of the MVRA.

On October 30, 2004, President Bush signed into law the new crime victims' rights act. The act recites a comprehensive list of rights for victims of crime, including "[t]he right to full and timely restitution as provided in law."¹³ During floor debate on this bill, Senator Kyl, the primary drafter, spoke regarding the "broad bipartisan consensus" underlying the law.¹⁴ In describing the effects of the bill, Senator Kyl specifically and directly endorsed this court's holding in Bedonie and Serawop:

I would like to turn now to restitution.... This section provides the right to full and timely restitution as provided in law. We specifically intend to endorse the expansive definition of restitution given by Judge Cassell in U.S. v. Bedonie and U.S. v. Serawop in May 2004. This right, together with other rights in the act to be heard and confer with the government's attorney in this act, means that existing restitution laws will be more effective.¹⁵

In light of this endorsement of the court's interpretation of the congressional statutes and for all the reasons given in its Bedonie and Serawop opinion, the court reaffirms that the MVRA requires an award of lost income in homicide cases.

II. The Sixth Amendment Right to a Jury Trial Does Not Extend to Restitution Awards

Because a restitution award is required in this case, the next question that arises is what factfinding procedures the court should use in calculating the award. In particular, should the court or a jury determine the facts regarding the award? Defendant Visinaiz argues that the Sixth Amendment right to a jury trial extends to restitution awards and requires the court to submit questions surrounding the victim's lost income to a jury. In support of his position, defendant Visinaiz cites the Supreme Court's decision in Blakely v....