U.S. v. Watchman, 83-2256
| Decision Date | 07 December 1984 |
| Docket Number | No. 83-2256,83-2256 |
| Citation | 749 F.2d 616 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Morrell WATCHMAN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Martin J. McClain, Cheyenne, Wyo., for defendant-appellant.
William J. Eichelberger, Asst. U.S. Atty., D. of Wyo. (Richard A. Stacy, U.S. Atty., David A. Kern, Asst. U.S. Atty., Cheyenne, Wyo., on the brief), for plaintiff-appellee.
Before SETH, BARRETT and SEYMOUR, Circuit Judges.
This appeal is from a motion to reduce defendant's sentence insofar as it included an order of restitution in the amount of $13,556.88 to the victim for medical treatment for physical injuries.
The appellant challenges the constitutionality of the statute authorizing restitution (18 U.S.C. Sec. 3579 and Sec. 3580), the amounts, and procedure used.
The basic constitutional issue has been considered by the Eighth Circuit in United States v. Florence, 741 F.2d 1066 (8th Cir.1984), in United States v. Brown, 744 F.2d 905 (2d Cir.1984), and in United States v. Welden, 568 F.Supp. 516 (N.D.Ala.).
The basic challenge is that a jury trial is required on the amount of restitution because under the Act it can be enforced as a civil action. The enforcement method does not however determine the nature of the order nor how the amount is determined. The victim does not appear as a party, control the hearing as to "losses," nor take an appeal. Restitution is a permissible penalty imposed on the defendant as part of sentencing. As the court said in United States v. Brown, the discretion and method of determining the length of a defendant's incarceration does not infringe on his Sixth Amendment rights. The restitution procedure does not infringe on Seventh Amendment rights. The basic concept of restitution (although without the present variations) was in place when the Seventh Amendment was adopted. We generally agree with the analysis made by the Eighth Circuit in United States v. Florence, 741 F.2d 1066 (8th Cir.), but we do not agree with the significance therein given to the presentence report. We conclude that the Act insofar as it provides for restitution, and as it provides for the court to determine the amount (if any), is a constitutional extension of sentencing.
We are here also concerned with the portion of the Victim and Witness Protection Act of 1982 (P.L. 97-291) relating to fact determinations and to procedures. This part of the Act appears at 18 U.S.C. Sec. 3579 and Sec. 3580. This aspect of the appeal requires a more extensive analysis than did the constitutional issue. This goes to the procedure and amount.
More particularly our consideration is directed to the parts of the cited sections which must be applied when the victim has received physical injuries inflicted by the defendant.
The defendant Watchman entered a guilty plea to an indictment for assault with intent to murder on an Indian reservation. The victim was an Indian as was the defendant. The victim, a woman, received very serious injuries which required extensive medical treatment. The defendant was considered to be an indigent person for the purpose of his representation at trial.
Congress has placed a duty on the trial courts to make several factual determinations under the Act and to enter specific orders of restitution based on such facts. The need for accuracy and thoroughness is apparent to permit the court to "impose an order of restitution to the extent that such order is as fair as possible to the victim." (Sec. 3579(d)) To accomplish this end the court in the case before us was required to ascertain the "losses" suffered by the victim by reason of the physical harm she suffered. (Sec. 3580(a)). This necessarily required some detailed information. These are details as to dollars not generalities.
The "losses" of the victim under Sec. 3579(b)(2) of the Act are to include the following specific elements:
(1) An amount equal to the cost of necessary medical and related professional services;
(2) Cost of nonmedical care and further treatment;
(3) The cost of therapy and rehabilitation;
(4) Income loss.
It is apparent that shortly after the guilty verdict is the time to gather the facts to make an order of restitution complete and accurate. If the restitution order is to be enforced in the future or otherwise relied on, it is essential that it have a sound basis in fact. This would seem to be the only way the purpose of the Act to aid the victim can be accomplished.
It also is apparent that the victim should have some participation directly or indirectly in the fact finding in order that his or her "losses" can be accurately determined and "fairness" be established. One of the basic purposes in the Act as a whole is to have the victims aware of the proceedings. In the record before us we do not know whether this requirement was met, and the indications are that it was not.
A good development of the facts would serve to reduce further litigation on the subject of "losses" by the victim or by the Government and reduce the chances of mistakes. Some facts in the record as a basis for the trial court's order of restitution are also necessary should appellate review be necessary.
On the other side of the coin, Congress has imposed a fact gathering requirement as to the defendant. (Sec. 3580(a)) This includes an ability to pay, thus an examination of the financial needs and resources of defendant and of the financial needs of defendant's dependents, "and such other factors as the court deems appropriate." Here again there is a need to have the basic facts determined in order that the restitution order can carry out the purposes of the Act, and to reduce the risk of a mistake.
Since Congress has mandated these several determinations it must be assumed that Congress also intended that sufficient time be devoted to these matters to assure completeness and accuracy. The "unduly prolong" language referring to sentencing means unduly long beyond what is required by the Act.
The burden in the fact gathering is placed by the statute on...
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