Opinion
22-cr-00093-JSC-1
07-21-2022
UNITED STATES OF AMERICA, Plaintiff, v. DEBBIE DUTTON, Defendant.
ORDER OF RESTITUTION
JACQUELINE SCOTT CORLEY UNITED STATES DISTRICT JUDGE
Debbie Dutton pled guilty to Assault by Striking or Wounding on an Aircraft in violation of 49 U.S.C. § 46506(1) and 18 U.S.C. § 113(a)(4). In her plea agreement, Ms. Dutton agreed that on a flight on June 29, 2021, she made “intentional unwarranted contact” with the victim, and that such “striking” caused the victim “bodily injury.” (Dkt. No. 33 ¶ 2.) With respect to restitution, the plea agreement specified:
Record citations are to material in the Electronic Case File (“ECF”) unless otherwise noted; pinpoint citations are to the ECF-generated page numbers.
I agree to pay full restitution for all losses caused by the schemes or offenses with which I was charged in this case, and I understand that the amount of restitution will not be limited to the loss attributable to the count to which I am pleading guilty, pursuant to 18 U.S.C. 3663(a)(3). I understand that the Court will not consider my economic circumstances in determining the restitution amount.(Id. ¶ 9.) The Court sentenced Ms. Dutton to time served plus one year of supervised release and, in accordance with the plea agreement, ordered that she pay restitution. (Dkt. No. 36.) As the parties dispute the amount of restitution that should be ordered, the Court held an evidentiary hearing on the restitution order on July 8, 2022. Prior to the hearing, both parties submitted written memorandum and exhibits. At the hearing itself, the victim testified under oath and was cross-examined by defense counsel.
DISCUSSION
The government seeks a total of $28,546.69 in restitution. This amount consists of the victim's lost wages for three months being off work following the incident ($18,190.23), lost income for time spent attending physical therapy after she had returned to work ($5,856.84), lost income for attending doctor visits after she returned to work ($1,378.08), lost income for attending counseling sessions after she returned to work ($344.52) and sick leave ($2,777.02).
A dispute as to the proper amount of restitution must be resolved by the district court under a preponderance of the evidence standard. See 8 U.S.C. § 3664(e); see also 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, and of proving the amount of the loss. United States v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008). The Federal Rules of Evidence do not apply to restitution hearings. See United States v. Yeung, 672 F.3d 594, 606 (9th Cir. 2012). However, “the district court [may] utilize only evidence that possesses ‘sufficient indicia of reliability to support its probable accuracy.'” Waknine, 543 F.3d at 557 (cleaned up).
A. Defendant's Economic Circumstances
In her initial written submission and at the evidentiary hearing, Defendant argued that it would be “plain error” for the Court to apply the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, rather than the Witness and Victim Protection Act (WVPA), 18 U.S.C. § 3663, and therefore not consider her economic circumstances in determining the amount of restitution. (Dkt. No. 45 at 4 n.3.) The Court is not persuaded that it must consider Ms. Dutton's economic circumstances. While the WVPA requires the trial court to “consider . . . the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant's dependents,” 18 U.S.C. § 3663(a)(1)(B)(i)(II), in a subsequent subsection it provides that “[t]he court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.” 18 U.S.C. § 3663(a)(3) (emphasis added). The structure of section 3663 demonstrates that subsection (a)(3) is authority to order restitution independent from subsection (a)(1) (which includes the provision requiring consideration of economic circumstances). See United States v. Zink, 107 F.3d 716, 719 (9th Cir. 1997) (permitting restitution order regardless of ability to pay where a defendant has “clearly acquiesce[ed]” to restitution); accord United States v. Thompson, 39 F.3d 1103, 1105 (10th Cir. 1994) (“While reluctant to absolve district courts of any responsibility for determining the proper amount of restitution, we believe the statute allows the sentencing court to be guided by the terms of the plea agreement.”) Therefore, under subsection (a)(3), a “specific agreement to make restitution . . . obviates the need to consider financial circumstances under 3663(a)(1)(B).” United States v. Kindelay, 2007 WL 2410343, at *7 (D. Ariz. Aug. 21, 2007), aff'd, 313 Fed.Appx. 950 (9th Cir. 2009) (cleaned up).
Ms. Dutton agreed in her plea agreement that she would pay restitution and that the Court would not consider her economic circumstances in determining the restitution amount. (Dkt. No. 33 at ¶ 9.) Thus, even if Defendant is correct that her offense of conviction does not qualify for a restitution award pursuant to the MVRA, in light of her plea agreement, an award that does not consider her financial circumstances is still appropriate under the WVPA. See Zink, 107 F.3d at 719; see also United States v. Soderling, 970 F.2d 529, 534 (9th Cir. 1992) (holding that section 3663(a)(3) “permits courts to order restitution in any criminal case to the extent agreed to . . . in a plea agreement”) (emphasis omitted; cleaned up). Further, were the Court to consider ability to pay, Defendant has not met her burden to demonstrate she is unable to pay restitution. See 18 U.S.C. § 3664(e); see also United States v. Nazifpour, 944 F.2d 472, 475 (9th Cir. 1991) (stating that defendant has the burden to demonstrate inability to pay restitution). There is no evidence in the record as to Ms. Dutton's current economic circumstances. The Court will therefore order restitution in accordance with what Ms. Dutton agreed in the written plea agreement.
B. Amount of Restitution
In advance of the evidentiary hearing, the only evidence the government submitted in support of its restitution demand were invoices unaccompanied by any declarations. (Dkt. No. 41.) This evidence, alone, is insufficient to meet the government's burden of proof. See United States v. Brock-Davis, 504 F.3d 991, 1002 (9th Cir. 2007) (“[T]he government must provide the district court with more than just . . . general invoices . . . ostensibly identifying the amount of their losses”) (cleaned up). At the hearing, however, the victim testified under oath on direct and cross-examination. Based on this testimony, the Court finds that it is more likely than not that Ms. Dutton's offense caused the victim to lose $19,568.31.
The government has shown that it is more likely than not that the three months that the victim was off work immediately following the incident was caused by the offense of conviction. The record supports a finding that after visiting the airline's workers compensation physician following the assault, the victim was taken off work status beginning June 30, 2021-the day following the assault-and was not cleared by the airline's physicians for work until October 2020. (Dkt. No. 41-2 at 37-39.) The victim also testified that she was paid workers compensation for the period off work, further confirming that the reason for her being off work was the injury suffered from the June 29, 2021 incident. The workers compensation covered two-thirds of her income; thus she seeks the additional one-third that she is out-of-pocket. Ms. Dutton does not challenge the calculation of this amount of restitution, (Dkt. No. 45 at 6), only whether it is warranted. Accordingly, the Court orders $18,190.23 in restitution for the lost wages during the three months the victim was out of work. The income lost due to visits to the workers compensation physician after the victim returned to work was also proximately caused by the incident for the same reason. That amount is $1,378.08.
Ms. Dutton's insistence that the Court can only order restitution for losses caused solely by her offense is incorrect. Instead, the Court may award restitution for losses “for which the defendant's conduct was an actual and proximate cause.” United States v. Swor, 728 F.3d 971, 974 (9th Cir. 2013) (cleaned up). That is, the government must “show not only that a particular loss would not have occurred but for the conduct underlying the offense of conviction, but also that the causal nexus between the conduct and the loss is not too attenuated (either factually or temporally).” Id. Such a standard is not a “sole” cause standard. Here, for the reasons explained above, it is more likely than not that the victim was placed on workers compensation leave for three months as a result of the bodily injury that Ms. Dutton agrees she caused the victim on June 29, 2021. The factual dispute as to the severity of the assault, or whether Ms. Dutton struck the victim once or twice, is immaterial given the temporal proximity of the relevant events. There is nothing in the record that suggests that between the time Ms. Dutton caused the victim bodily injury (June 29) and the time that the victim was placed on leave (June 30), the victim suffered some other injury which required the workers compensation leave. Similarly, that the victim had suffered workplace injuries more than two years earlier, injuries which may have been aggravated by Ms. Dutton's assault, does not alter the finding that Ms. Dutton caused the victim to suffer “bodily injury” which proximately caused the victim to go on workers compensation leave for three months and suffer a loss of wages.
The Court also finds, however, that the government has not met its burden of proving that the wages the victim lost by attending physical therapy appointments after she returned to work were proximately caused by June 29 assault. The victim's physician consistently reports that the victim suffered right-side injury as a result of the incident. (Dkt. No. 41-2 at 3, 4, 37-39.) And her physical therapy appointments are for ride-side pain through-out the three-month period she was off work. (Id. at 32.) Yet, after about a two-month gap in physical therapy appointments following her return to work, the victim returned to physical therapy for left shoulder pain. (Id.) The record does not support a finding by a preponderance of the evidence that the left shoulder pain-which materialized five months after the incident-was proximately caused by the assault. The government similarly has not shown that the single counseling session in December 2021- nearly six months after the incident-was proximately caused by the assault.
Finally, the government has not established that the sick leave was caused by the incident. While there is evidence that the victim took sick leave, there is no evidence as to when it was taken. (Id. at 19-24.)
CONCLUSION
For the reasons explained above the Court finds that Ms. Dutton owes a total of $19,568.31 in restitution as required by her plea agreement and the Court's sentence. This amount consists of $1,378.08 in lost income for doctor visits after the victim returned to work and $18,190.23 in lost income for the three months the victim was placed off work following the assault.
IT IS SO ORDERED.