United States v. Evans

• Decision Date: 09 September 2022
• Docket Number: 21-3114
• Citation: 48 F.4th 888
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Robert Carey EVANS, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

48 F.4th 888

UNITED STATES of America, Plaintiff - Appellee
v.
Robert Carey EVANS, Defendant - Appellant

No. 21-3114

United States Court of Appeals, Eighth Circuit.

Submitted: April 15, 2022
Filed: September 9, 2022

Counsel who represented the appellant was Molly C. Quinn, AFPD, of Sioux Falls, SD.

Counsel who represented the appellee was Matthew Greenley, AUSA, of Fargo, ND.

Before LOKEN, KELLY, and KOBES, Circuit Judges.

LOKEN, Circuit Judge.

In 2013, a jury convicted Robert Carey Evans of possessing materials containing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The district court sentenced him to 120 months imprisonment. The Violence Against Women Act of 1994 also required the court to order restitution to the victims of Evans's child pornography offense. See 18 U.S.C. § 2259(a), (b)(4). Only the victim in the "Vicky" child pornography series requested restitution. After a hearing, applying the Supreme Court's recent decision in Paroline v. United States, 572 U.S. 434, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014), the district court found that Vicky suffered $1,346,158.12 in total actual losses from the trafficking of her images, as the parties had stipulated, and ordered Evans to pay a proportionate share of $3,250 in restitution. Evans appealed, arguing the court abused its discretion under Paroline in determining the appropriate amount of restitution. We affirmed. United States v. Evans, 802 F.3d 942 (8th Cir. 2015).

In May 2021, the government moved for an order directing the Bureau of Prisons (BOP) to turn over $2,084 from Evans's inmate trust account to pay the remaining balance of his restitution obligation. The balance in the trust account was then $2,102.92. In a pro se response captioned Motion for Summary Judgment and Dismissal of Claims, Evans submitted a BOP document summarizing activity in his inmate trust account and stated: on "April 28, 2021, [he] receive[d] his final CARES Act stimulus payment into his Bureau of Prisons Trust Fund Account," bringing the total amount of funds in the account to "just over $2,260"; $2,102.92 was withdrawn on May 19 for a "Pending Federal Court Order." Evans argued that stimulus funds are "not subject to garnishment" and "must be returned to the Defendant." In addition, he questioned whether Vicky has been fully compensated for her total loss, which would satisfy his restitution obligation. He requested "an Order that the Government obtain a full accounting of all payments made to this victim," appointment of counsel, and a hearing to resolve these issues.¹

In a three-page order, the district court summarily denied Evans's motion requesting a hearing and granted the government's turnover motion. The court concluded that funds in an inmate's trust account are not exempt from the payment of

48 F.4th 891

restitution under 18 U.S.C. § 3613(a)(1), and that 18 U.S.C. § 3664(n), part of the Mandatory Victims Restitution Act (MVRA), "requires that resources received by [Evans] from any source during his term of incarceration" be applied to his restitution obligation (emphasis in original).² The court did not identify the sources of the funds in Evans's trust account or determine whether the funds were "substantial resources" within the meaning of § 3664(n). Evans appeals, raising all these issues.³ The district court stayed the collection or payment of restitution pending the appeal.

I.

Evans first argues the district court erred in ordering the turnover of $2,084 without first determining the source of the funds in his trust account and determining whether they were "substantial resources." We agree. With the appeal pending, we issued our decision in United States v. Kidd, addressing whether § 3664(n) "applies to accumulated prison wages in the trust account of an inmate." 23 F.4th 781, 783 (8th Cir. 2022). Like two sister circuits, we rejected the government's view that "any source" unambiguously means any source. Id. at 786. We disagreed with Fifth and Ninth Circuit decisions that § 3664(n) applies only to windfalls or sudden financial injections. Id. at 786-87. However, after "consider[ing] the words of § 3664(n) in their statutory context," we agreed "that § 3664(n) does not apply to prison wages." Id. We reversed the turnover order at issue and remanded because "the record on appeal does not reveal the sources of the accumulated funds in Kidd's inmate trust account," which precluded a determination of whether the account included either "substantial resources from outside sources that would be subject to § 3664(n)," or a gradual accumulation of "small amounts received from various sources," including prison wages, that would constitute a "material change in the defendant's economic circumstances" under § 3664(k). Id. at 787-88 (cleaned up).

We review the district court's decision to order a restitution payment under § 3664(n) for abuse of discretion and its interpretation of the statute de novo . Kidd, 23 F.4th at 785. Although this appeal involves a COVID-19 stimulus payment rather than an inmate's prison wages, we conclude the court's payment order must be vacated and...