U.S. v. Wilfong

• Decision Date: 23 December 2008
• Docket Number: No. 07-6214.,07-6214.
• Citation: 551 F.3d 1182
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Neil Jason WILFONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

551 F.3d 1182

UNITED STATES of America, Plaintiff-Appellee, v. Neil Jason WILFONG, Defendant-Appellant.

No. 07-6214.

United States Court of Appeals, Tenth Circuit.

December 23, 2008.

John C. Richter, United States Attorney, (Jonathon E. Boatman, Assistant United States Attorney, with him on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

June E. Tyhurst, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Before HARTZ, McWILLIAMS and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Neil Jason Wilfong pled guilty to charges arising from a bomb threat he made against Tinker Air Force Base, which resulted in the evacuation of a building at the base for several hours. As part of his plea, Mr. Wilfong agreed to pay restitution to the government. The question before us is whether the restitution may include compensation for the employee work hours lost as a result of the evacuation. We conclude that it can. We also affirm Mr. Wilfong's above-guidelines sentence.

I. BACKGROUND

On December 15, 2006, at around 7:30 a.m., Mr. Wilfong called Tinker Air Force Base, asking to speak to his mother, Fran Ferreira. The person taking the call said that Ms. Ferreria was not in the office and asked if Mr. Wilfong wanted to leave a message. Wilfong replied: "Well, there's a bomb in the building." The building— called Building 3001—was evacuated. The evacuation lasted between two-and-a-half and three-and-a-half hours (the parties disagree on the exact amount of time) and involved thousands of employees. There was no bomb; the threat had been a hoax.

Federal agents identified Mr. Wilfong as the caller and located him at the home of his girlfriend. Officers set up a blockade around the house, but Wilfong left the home (apparently carrying a loaded crossbow) and drove off in his truck. After a high speed chase, he was taken into custody. After the court determined he was competent to stand trial, Mr. Wilfong pled guilty to calling in the bomb threat, in violation of 18 U.S.C. § 844(e).¹ He was sentenced to 48 months imprisonment, which represented an upward variance from the recommended sentencing guidelines range of 24-30 months. He was also ordered to pay $475,631.00 in restitution under the Mandatory Victims Restitution Act (MVRA). The bulk of the restitution was for lost employee work hours caused by the evacuation. Mr. Wilfong appeals the district court's decision to order restitution based on the loss of employee work hours at the Tinker Base. He also appeals his above-guidelines sentence.

II. THE RESTITUTION ORDER

Federal courts may not order restitution in criminal cases except "as explicitly empowered by statute." United States v. Nichols, 169 F.3d 1255, 1278 (10th Cir. 1999) (internal quotation marks omitted). The Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, requires persons convicted of certain offenses to pay restitution to those harmed by their acts. The Act prescribes a different methodology for calculating restitution for property crimes and for bodily injury crimes. In cases where there is bodily injury to a victim, the statute allows for restitution for the costs of medical care, occupational therapy, and "for income lost by such victim as a result of such offense." 18 U.S.C. § 3663A(b)(2)(A)-(C). In cases where the offense has resulted in "damage to or loss or destruction of property of a victim," the statute requires the defendant either to return the property or, if return is impossible, impractical, or inadequate, to pay "an amount equal to the greater of: (I) the value of the property on the date of the damage ..., or (II) the value of the property on the date of sentencing," minus the value of any part of the property that may have been returned. 18 U.S.C. § 3663A(b)(1)(B)(i)(I)-(II). Section 3663(b) does not expressly authorize restitution for lost income or lost profits in property damage cases, and the term "value" is undefined. It is undisputed that this is a property damage case, not a bodily injury case.

Mr. Wilfong does not dispute that his offense is one for which restitution is mandatory under the MVRA. However, he argues that he cannot be required to pay restitution for the value of the lost employee work time entailed by his phony bomb threat. He offers two related arguments in support of this conclusion: (1) that restitution for employee work hours is tantamount to restitution for "lost income" and is not authorized by the MVRA, and (2) that restitution for employee work hours would be a form of "consequential damages," which this Court has interpreted the MVRA to disallow.

A. Loss of Employee Work Hours

Looking to the language of the statute and its evident purposes, we have no hesitation in affirming the district court's award of restitution. An employee's work time is the property of the employer. United States v. Hand, 863 F.2d 1100, 1103 (3rd Cir.1988). When Mr. Wilfong issued his bomb threat and Building 3001 was evacuated, Tinker Air Force Base lost the value of this "property" just as surely as a printing plant would lose the value of its property if an arsonist struck a match to its paper supply. Value was destroyed. The property could not be returned. There would be no question, in the arson case, that restitution should include the value of the paper that was destroyed. In this case, the cost of the lost employee work time should similarly be included in the restitution order. As the Third Circuit wrote in Hand, "When the time for which the government compensated its employees was `lost' because of [someone's] illegal acts," it is just "as significant a financial loss to the government as when, in [another case] food stamps were stolen and fraudulently used." 863 F.2d at 1103.

The Supreme Court has stated that "the ordinary meaning of `restitution' is restoring someone to a position he occupied before a particular event." Hughey v. United States 495 U.S. 411, 416, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1936 (1986); BLACK'S LAW DICTIONARY 1180 (5th ed.1979)). Before Mr. Wilfong's bomb threat, Tinker Air Force Base was entitled to the value of the services of its employees. Unless Mr. Wilfong compensates for this loss, the purpose of restitution will not have been met.

When property is damaged or lost and cannot be returned, the victim is entitled under the plain language of the statute to receive as restitution an amount equal to "the value of the property on the date of the damage, loss, or destruction." 18 U.S.C. § 3663A(b)(1)(B)(i)(I). The statute does not define the term "value," but one logical way to assess the value of the lost property is by its cost to the victim—how much the victim paid for the lost property.² That is what the district court did, and we see nothing wrong with its reasoning.

But perhaps matters are not that simple. As Mr. Wilfong notes, the MVRA authorizes restitution for "lost income" in bodily injury cases but contains no such provision for cases of injury to property. Some courts have inferred from this statutory difference that Congress has not authorized (and therefore has impliedly prohibited) restitution for lost income or lost profits in property damage cases. In United States v. Mitchell, 876 F.2d 1178 (5th Cir.1989), for example, the defendant was convicted of possession of stolen property, namely three Mack trucks. As part of restitution, the district court ordered the defendant to pay the owners of the trucks the income they lost as a result of the thefts, calculated by multiplying the daily earnings the victims would have made from the use of the trucks by the number of days the trucks were illegally held by the defendant. The government defended the restitution order, in part, on the ground that denying recovery for lost income would fall short of the statutory goal of full compensation to victims for their losses. The Fifth Circuit reversed, finding that lost income could not properly be the object of restitution. It pointed to the difference between 18 U.S.C. § 3663(b)(1), which authorizes restitution for lost income in bodily injury cases, and 18 U.S.C. § 3663(b)(2),³ which makes no mention of lost income or profits in property damage cases. Id. at 1183. It explained:

[T]he fact that the goals of the Act may be thwarted by denying lost income restitution does not authorize us to ignore the plain language of the statute. Congress is clearly capable of authorizing restitution for lost income when it chooses to do so. See 18 U.S.C. § 3663(b)(2). Despite this fact, it has not included lost income in the type of restitution that may be ordered in property cases and, unless and until it amends the statute to include lost income, courts may not order such restitution in property cases.

Id.

In United States v. Sharp, 927 F.2d 170 (4th Cir.1991), defendants responsible for exploding a home-made pipe bomb at a mine were ordered to pay restitution for the "loss of income" caused by the destruction of the mine. Id. at 172-73. It is not clear from the appellate opinion how this loss was measured. Adopting the reasoning of Mitchell, but without much analysis, the Fourth Circuit reversed the award. It commented that "on the plain language of the statute, the district court should not have included lost income in the calculation of restitution." Id. at 174.

Other appellate decisions are in seeming conflict. In United States v. Milstein, 481 F.3d 132 (2d Cir.2007), the defendant was convicted of fraudulently distributing misbranded drugs in violation of trademark law. The district court ordered restitution to drug manufacturers based on the value of lost sales. Id. at 137. The Second Circuit noted the holdings of Mitchell and Sharp, but concluded that "[n]othing in the text or legislative history of the [Act] precludes restitution for lost profits under section 3663(b)(1) where such losses amount to the `value of the property' the victim...