US v. Andrews

• Decision Date: 07 April 2010
• Docket Number: No. 09-30072.,09-30072.
• Citation: 600 F.3d 1167
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. ANDREWS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

600 F.3d 1167

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. ANDREWS, Defendant-Appellant.

No. 09-30072.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 2, 2009.

Filed April 7, 2010.

COPYRIGHT MATERIAL OMITTED

Matthew Campbell, Federal Defenders of Eastern Washington & Idaho, Spokane, WA, for the defendant-appellant.

Matthew F. Duggan, Assistant United States Attorney, Spokane, WA, for the plaintiff-appellee.

Before: ARTHUR L. ALARCÓN, FERDINAND F. FERNANDEZ and RICHARD R. CLIFTON, Circuit Judges.

Opinion by Judge ALARCÓN; Concurrence by Judge CLIFTON; Dissent by Judge ALARCÓN.

ALARCÓN, Senior Circuit Judge:¹

Michael J. Andrews appeals from a restitution order imposed pursuant to the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. § 3663A, following his guilty plea to an assault resulting in serious bodily injury to Scott Bershaw in violation of 18 U.S.C. §§ 1151, 1153(a), 113(a)(6), (b)(2), and 1365(h)(3).² Andrews contends the district court erred in ordering him to pay restitution for lost wages to the Crime Victim's Compensation Program (CVCP), Wash. Rev.Code § 7.68, in determining that payment to CVCP does not constitute overcompensation or double-dipping, and in refusing to allow an expert witness to testify regarding the proximate cause of the victim's injuries. We remand for a renewed restitution proceeding because the district court abused its discretion in precluding Andrews's expert witness from testifying regarding the proximate cause of Bershaw's injuries.

I

On October 2, 2007, a federal grand jury returned a one count indictment charging Andrews with assault resulting in serious bodily injury.³ On September 4, 2008, Andrews pled guilty to the one count indictment.

On January 14, 2009, Andrews was sentenced to imprisonment for 28 months. In the plea agreement, Andrews agreed to an order of restitution in an amount to be determined prior to the sentencing proceedings. At the sentencing hearing, however, Andrews requested the district court to bifurcate the sentencing and restitution hearing because he disputed the amount of restitution recommended in the pre-sentence report. The district court granted Andrews' request.

At the restitution hearing, the district court ordered that Andrews pay $59,284.41 directly to CVCP for Bershaw's medical bills and his injury-related loss of income. Pursuant to 18 U.S.C. § 3663A(b)(2), the district court stated "that the CVCP is entitled to be reimbursed for both medical bills and compensable losses because Mr. Bershaw experienced actual losses, and the CVCP helped him cover those losses. Reimbursing the CVCP directly avoids the unnecessary procedural hurdle of reimbursing Mr. Bershaw, only to have the CVCP then seek reimbursement from Mr. Bershaw."

II

Andrews contends that the district court's restitution order overcompensated Bershaw because he "received payment from both CVCP and the Social Security Administration (SSA) for the same period of disability." (Appellant Br. 19). He asserts "this payment violated Section 3664(j)(2), which requires that `any amount paid to a victim under an order of restitution shall be reduced by any amount later recovered as compensatory damages for the same loss by the victim." Id. The district court, however, determined that payment by CVCP was for "loss of function," while payment by the SSA was because "Bershaw was permanently, totally disabled." Thus, the district court stated, "these are separate disability distinctions entitled to separate disability awards."

Because there is evidence in the record supporting the district court's findings that the disability awards from CVCP and SSA constituted two different types of compensation, the district court did not commit clear error in determining that no overcompensation or double-dipping occurred.

III

Andrews further maintains that the district court erred in not allowing him to present an expert witness at the restitution proceeding "in an effort to demonstrate that his actions were not the proximate cause of Mr. Bershaw's disability." (Appellant Br. 23). He argues that he "explained to the district court that Dr. Mays was being called to testify regarding `whether Bershaw's cognitive disorder is attributed to the head injury or are there possible—other possible reasons for the cognitive disorder." Id.

"Restitution can only include losses directly resulting from a defendant's offense." Stoddard, 150 F.3d at 1147 (quoting United States v. Sablan, 92 F.3d 865, 870 (9th Cir.1996)). "For that reason, `a restitution order must be based on losses directly resulting from the defendant's criminal conduct.'" Id.

"A victim for restitution purposes is a person who has suffered a loss caused by the specific conduct that is the basis of the offense of conviction." United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 927 (9th Cir.2001) (quoting Hughey, 495 U.S. at 413, 110 S.Ct. 1979) (footnote omitted). In Gamma Tech this court stated:

It is clear from our cases that the phrase "directly resulting" means that the conduct underlying the offense of conviction must have caused a loss for which a court may order restitution, but the loss cannot be too far removed from that conduct.... Defendant's conduct need not be the sole cause of the loss, but any subsequent action that contributes to the loss, such as an intervening cause, must be directly related to the defendant's conduct.... The causal chain may not extend so far, in terms of the facts or the time span, as to become unreasonable.

Gamma Tech, 265 F.3d at 928 (citations omitted). "The main inquiry for causation in restitution casesis whether there was an intervening cause and, if so, whether this intervening cause was directly related to the offense conduct." Gordon, 393 F.3d at 1055 (quoting United States v. Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999)).

"Under 18 U.S.C. § 3664 (`§ 3664'), a dispute as to the proper amount of restitution must be resolved by the district court by a preponderance of the evidence." United States v. Waknine, 543 F.3d 546, 556 (9th Cir.2008) (citing 18 U.S.C. § 3664(e) and United States v. Clayton, 108 F.3d 1114, 1118 (9th Cir. 1997)). "The government bears the burden of proving that a person or entity is a victim for purposes of restitution, United States v. Baker, 25 F.3d 1452, 1455(9th Cir.1994) overruled on other grounds by United States v. Lawrence, 189 F.3d 838, 846 (9th Cir.1999), and of proving the amount of the loss, 18 U.S.C. § 3664(e)." Id. (citation omitted). "The government must provide the district court with more than just ... general invoices ... ostensibly identifying the amount of their losses." United States v. Brock-Davis, 504 F.3d 991, 1002 (9th Cir.2007) (quoting United States v. Menza, 137 F.3d 533, 539 (7th Cir.1998)).

In denying Andrews's request to present his expert witness, the district court engaged in the following colloquy with his counsel:

THE COURT: So tell me how I am going to be helped by Doctor Mays' testimony today?

MR. FISCHER: Only that—

THE COURT: See, it is not enough for Doctor Mays to tell me I don't think they got it right at CVCP. CVCP made their determinations and they paid the money. End of story as far as I am concerned.

. . . .

MR. FISCHER: So I am asking simply of Doctor Mays if the disability that was paid out—or his diagnosis of disability, he being disabled, was a direct result of the head injury or it could have been from another source.

THE COURT: Counsel, the reason that I hesitate here is that my limited understanding of the Crime Victims Compensation Program is they are not going to pay a nickel unless they are satisfied based on the examinations of various treatment providers that the initial criminal incident caused the condition for which application sought benefits, and since they made that determination that both on the treating physicians and on the evaluations, are you attempting to go behind those evaluations to say they got it wrong?

MR. FISCHER: Yes.

THE COURT: I don't know how you can do that. They did it, they paid it, end of sorry sic.

. . . .

MR. FISCHER: Well, Your Honor, I would—I would simply ask Doctor Mays if there was another explanation for the disability that was determined by CVCP.

. . . .

THE COURT: Mr. Bershaw is like everybody else. He comes with a whole set of complete psychosocial history, and that individual is—then suffers a skull fracture which imposes on what he already is.

The severe injury—severe physical injury and whatever reasonable consequences flow from that psychologically and physically, and that is within the authority of the CVCP to determine based on expert evaluations that they relied on so I don't know how we get any further on this.

These comments demonstrate that the district court apparently found that Andrews's conduct was the sole cause of Bershaw's mental and physical condition without considering contrary evidence proffered by Andrews. The district court's finding violated the court's duty to resolve any dispute concerning the cause of Bershaw's ailments by a preponderance of the evidence. Waknine, 543 F.3d at 556 (citation omitted). Thus, the district court abused its discretion in rejecting the expert witness's testimony.

Upon remand, the district court should permit Andrews to present any evidence indicating that his criminal conduct did not cause Bershaw's mental and physical condition. Because the amount of restitution may be affected by the district court's findings on the cause of the victim's medical expenses and his inability to work, the district court should order that the victim be provided with notice of the restitution hearing. The district court must determine that restitution for medical expenses is supported by reliable evidence and provide an adequate explanation as to how it determined the restitution award. The district court may only award restitution for medical expenses and loss of income if the...