United States v. Zaic, 13–2028.

• Decision Date: 27 February 2014
• Docket Number: No. 13–2028.,13–2028.
• Citation: 744 F.3d 1040
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Martin ZAIC, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

744 F.3d 1040

UNITED STATES of America, Plaintiff–Appellee

v.Martin ZAIC, Defendant–Appellant.

No. 13–2028.

United States Court of Appeals,

Eighth Circuit.

Submitted: Nov. 22, 2013.

Filed: Feb. 27, 2014.

Heather Thompson, AUSA, argued, Rapid City, SD, for Plaintiff–Appellee.

Gary G. Colbath, AFPD, argued, Rapid City, SD, for Defendant–Appellant.

Before RILEY, Chief Judge, BRIGHT and KELLY, Circuit Judges.

KELLY, Circuit Judge.

Martin Zaic pled guilty to one count of failure to pay legal child support obligations, in violation of 18 U.S.C. § 228(a)(3). On December 21, 2012, the district court ¹ sentenced Zaic to 5 years probation and ordered him to pay $43,622.40 in restitution for child support arrearages. At Zaic's request, the district court continued the determination of additional restitution, holding another hearing on May 3, 2013. Following this hearing, the district court entered an amended judgment in which it granted $5,741.80 in additional restitution for the children's medical expenses. Zaic challenges this order for additional restitution on procedural grounds. We affirm.

I. Background

Zaic and his former wife, Faith Lewis, had two children together, L.Z. and E.Z. Following their divorce in 2006, Lewis took custody of the children and Zaic was ordered to pay monthly support obligations in the amount of $512.00. Under this state child support order, Zaic was also required to pay his children's medical expenses as follows:

[A]ny medical costs in excess of $250.00 per year for each child that is not covered by insurance shall be apportioned between the parents in proportion to the support obligation of each parent. All medical costs not covered by insurance are to be divided between the parties as follows: Custodial Parent Faith Lewis—60% and the Non–Custodial Parent Martin Zaic—40%.

Child Support Order Ex. A at 2, No. 09–50010, ECF No. 27–1. Zaic failed to make these payments. In February 2009, he was indicted for failure to pay legal child support obligations, in violation of 18 U.S.C. § 228(a)(3). Zaic pled guilty to this charge in September 2012.

Probation prepared a Presentence Investigation Report (“PSR”) in October 2012 in which it described the child support arrearages and indicated that Lewis had not yet submitted a Victim Impact Statement. On December 12, 2012, nine days before Zaic's sentencing hearing, Lewis submitted a Declaration of Victim Losses and a Victim Impact Statement to the probation officer. In the declaration, Lewis listed both health insurance payments and medical expenses not covered by insurance as “specific losses” for which she sought restitution:

Martins [sic] share of Medical Expenses.

($55/mo for health insurance since January 2007 and 1/2 of the medical expenses after the first 250/child.)

2007—Insurance $660

2008—Insurance $660 L.Z.—$2798

E.Z.—$1882

2009—Insurance $660

E.Z.—$416

2010—Insurance $660

E.Z.—$924

2011—Insurance $660 L.Z.—$811

E.Z.—$487

2012—Insurance $660 L.Z.—$422

E.Z.—$1030

Appellee's Br. at 5–6.² Handwritten on the form, Lewis noted that “[t]hese are expenses after insurance and only the bills I have receipts for at the moment.” Id. Lewis also mentioned these expenses in her Victim Impact Statement, explaining: “I did also provide documentation of medical insurance expense [sic] and some of the medical bills I have paid over the last 7 years for which Martin should share in responsibility.” Id. at 6.

On December 21, 2012, Zaic was sentenced to 5 years probation and ordered to pay restitution in the amount of $43,622.40 for child support arrearages. During this sentencing hearing, the district court remarked that “[t]here was also a declaration of victim loss filed by Faith Lewis seeking $12,730 based on insurance that she had paid and the defendant had not paid his part. Is the government seeking that also as restitution?” Sentencing Tr. at 3, No. 09–50010, ECF No. 41. The government said yes, and Zaic requested a continuance on the matter of the health insurance premiums. Id. at 3–5. Before granting the continuance, the district court asked Zaic's counsel, “is it fair to say that your client paid zero dollars toward insurance or the deductible?” Id. at 5. Zaic's counsel responded, “I believe that is correct.” Id. The district court then ordered briefing on whether restitution “for the insurance premiums paid for the purpose of providing the children with healthcare coverage” could be awarded. Order at 1, No. 09–50010, ECF No. 26.

In its brief filed March 7, 2013, the government conceded that restitution was not warranted for healthcare premiums as they were already included in the calculation of Zaic's monthly support obligation. However, the government also sought restitution for past medical expenses not covered by insurance. The receipts for those medical expenses, attached to the government's brief, were dated from 2007 to May 2012.

On March 21, 2013, the district court denied Lewis' request for restitution for health insurance premiums, but scheduled another hearing for the requested medical expenses. The court held a restitution hearing on May 3, 2013. Lewis did not attend this hearing. The court accepted the government's representation that the medical bills were not in Lewis' personal possession at the time of sentencing and that she had to obtain them from the companies to which payments had been made. The court granted the government's request for the additional restitution, in the amount of $5,741.80. In doing so, the court cited 18 U.S.C. § 3664(d)(5), stating that Lewis “subsequently discovered further losses” and had good cause for failure to include them originally since she had to obtain them from various companies. Mot. Hr'g at 19, No. 09–50010, ECF No. 55.

II. Discussion

We review a district court's decision to award restitution for abuse of discretion. United States v. Adetiloye, 716 F.3d 1030, 1038 (8th Cir.2013). And we review questions of statutory interpretation de novo. United States v. Balentine, 569 F.3d 801, 802 (8th Cir.2009).

The Mandatory Victims Restitution Act of 1996 (“MVRA”) requires a court to order full restitution to the identifiable victims of certain crimes, without regard to the defendant's economic circumstances. 18 U.S.C. §§ 3663A–3664. As this court has explained before, “[t]he primary and overarching goal of the MVRA is to make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original state of well-being.” Balentine, 569 F.3d at 806 (quotation omitted).

To this end, the statute details the procedures for ordering restitution. The sentencing court may order the probation officer to prepare a report of the “complete accounting of the losses to each victim.” 18 U.S.C. § 3664(a). The prosecutor, upon request, “shall promptly provide the probation officer with a listing of the amounts subject to restitution” no later than 60 days before sentencing. 18 U.S.C. § 3664(d)(1). However, the MVRA explicitly permits a belated award of restitution in two circumstances:

If the victim's losses are not ascertainable by the date that is 10 days prior to sentencing, the attorney for the Government or the probation officer shall so inform the court, and the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.

18 U.S.C. § 3664(d)(5).

Zaic argues that because these procedural requirements were not strictly followed, the district court lacked authority to order the additional restitution for medicalexpenses.³ There is no dispute that the additional medical expenses were not determined 60 days prior to sentencing, as contemplated by 18 U.S.C. § 3664(d)(1). Nevertheless, Lewis notified the probation officer through her Declaration of Victim Losses and Victim Impact Statement that she was seeking restitution for medical expenses—both insurance premiums and out-of-pocket costs.⁴ Appellee's Br. at 5–6. Lewis also made clear in these documents that she had incurred additional losses, but did not yet have all those receipts. Id. Admittedly, Lewis submitted these documents 9, not 10, days before the sentencing hearing. The record does not indicate that the prosecutor or the probation officer notified the court 10 days (or even 9 days) prior to sentencing that “the victim's losses [were] not ascertainable.” 18 U.S.C. § 3664(d)(5). And the district court ordered the additional restitution 133 days, not 90 days, after the initial sentencing hearing. Zaic is thus correct that the procedural provisions of 18 U.S.C. § 3664(d)(5) were not strictly followed.

However, a district court is not necessarily divested of the power to order restitution when the government or the court fails to perfectly comply with the MVRA's procedural provisions. See Dolan v. United States, 560 U.S. 605, 611, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010); see also Balentine, 569 F.3d at 807. In Dolan, the Supreme Court addressed the 90–day deadline for ordering restitution in 18 U.S.C. § 3664(d)(5). There, the district court did not order any restitution until approximately 3 months after the 90–day deadline. Dolan, 560 U.S. at 609, 130 S.Ct. 2533. The Court held “[t]he fact that a sentencing court misses the [MVRA's] 90–day deadline, even through its own fault or that of the Government, does not deprive the court of the power to order restitution.” Id. at 611, 130 S.Ct. 2533.Dolan straightforwardly disposes of Zaic's argument that missing the 90–day deadline automatically precludes the district court from ordering restitution.

The Supreme Court in Dolan indicated that a delay in ordering restitution might still prejudice a...