United States v. Juvenile Female

296 F. App'x 547

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 3, 2008
• Docket: No. 07-30158
• Status: Published

Opinions

MEMORANDUM

*

T.M., a juvenile, appeals the district court’s order that she pay restitution in the amount of $7,952 to Rhea Red Dog Starr (“Starr”), the mother of Richard Bodean Red Dog (“Red Dog”), who was murdered on December 12, 2003, within the boundaries of the Fort Peck Indian Reservation in Montana. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

T.M. contends Starr does not qualify as a “victim” to whom T.M. can be ordered to pay restitution under 18 U.S.C. §§ 3663, 3663A. The relevant statute defines “victim” as “a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered[.]” 18 U.S.C. § 3663A(a)(2). In determining who qualifies as a victim, the sentencing court may take into account only the offense(s) of which the defendant was convicted. Hughey v. United States, 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). Thus, restitution may be ordered “only for the loss caused by the specific conduct that is the basis of the offense of conviction.” Id.

T.M. contends she cannot be held liable for losses Starr incurred while searching for Red Dog, because T.M. pleaded guilty only to assaulting Red Dog with a dangerous weapon; she did not plead guilty to his murder. Thus, according to T.M., the specific conduct underlying her offense of conviction did not “directly and proximately” cause Starr’s losses.

We have previously held, however, that restitution awards may include losses “at least one step removed from the offense conduct itself.” United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 928 (9th Cir.2001). We have affirmed restitution awards even where there were “multiple links in the causal chain” between the conduct underlying the offense and the costs for which restitution was ordered. United States v. Hackett, 311 F.3d 989, 993 (9th Cir.2002). Moreover, “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.

Here, T.M. and two other individuals— her brother Jordan and her then-boyfriend Bearcub — committed the assault during which Red Dog was killed. T.M. admits she hit Red Dog twice with a baseball bat during the assault. She then accompanied Jordan and Bearcub to a nearby bridge and helped them push Red Dog’s body off the bridge into a river. Red Dog’s body was never recovered. Starr subsequently missed seven months of work while searching for her missing son.

While T.M.’s conduct was not the sole cause of Starr’s loss, Starr’s search for her missing son was a reasonably foreseeable reaction to T.M.’s conduct, in combination with the conduct of Jordan and Bearcub; thus, Starr’s actions were “directly related” to T.M.’s conduct. See Gamma Tech, 265 F.3d at 928. Accordingly, the “causal chain” between the conduct underlying T. M.’s offense and the lost wages incurred by Starr does “not extend so far, in terms of the facts or the time span, as to become unreasonable.” See id. Thus, we hold Starr qualifies as a “victim” for purposes of the payment of restitution.

T.M. further contends Starr’s lost wages are not recoverable under 18 U.S.C. § 3663A(b)(4). Section 3663A(b)(4) provides that the order of restitution for a defendant convicted of a qualifying offense “shall require that such defendant — ■... in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U. S.C. § 3663A(b)(4) (emphasis added).

“This circuit has adopted a broad view of the restitution authorization for investigation costs [under 18 U.S.C. § 3663A(b)(4) ]. Generally, investigation costs ... incurred by private parties as a direct and foreseeable result of the defendant’s wrongful conduct may be recoverable.” United States v. Gordon, 393 F.3d 1044, 1056-57 (9th Cir.2004) (internal quotation marks and alterations omitted) (emphasis in original).

T.M. contends that because the FBI undertook its own efforts to search for Red Dog’s body, Starr’s decision to take seven months off from work to search for her missing son was not a “direct and foreseeable result” of T.M.’s conduct. We rejected a nearly identical contention in United States v. Cummings, 281 F.3d 1046, 1053 (9th Cir.2002) (affirming a restitution award for attorney’s fees incurred during civil proceedings brought by a mother to recover her stolen child, notwithstanding the separate criminal proceedings independently brought by the government).¹ As we noted in Cummings, “a parent deprived of her children does not have the same choices [as other victims] about what sums are appropriately spent to rectify the harm done.” Id. Accordingly, because Starr’s lost income was a direct and foreseeable result of T.M.’s offense, we hold this lost income is recoverable under § 3663A(b)(4).

The district court did not abuse its discretion in ordering T.M. to pay restitution.²

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . In Cummings, we addressed a restitution order issued pursuant to 18 U.S.C. § 3663(b)(4) (a provision of the Victim and Witness Protection Act (“VWPA”)); here, the governing provision is 18 U.S.C. § 3663A(b)(4) (a provision of the Mandatory Victims Restitution Act (“MVRA”)). The provisions, however, are substantially the same. Moreover, in Cummings, we applied precisely the same test to § 3663(b)(4) as we apply here to § 3663A(b)(4) — i.e., whether the expenses at issue were a “direct and foreseeable result” of the defendant’s offense. See also Gordon, 393 F.3d at 1048 (holding that because of the similarities between the VWPA and MVRA, “courts interpreting the MVRA may look to and rely on cases interpreting the VWPA as precedent.”).

2 . Because we hold the district court did not abuse its discretion in ordering T.M. to pay restitution, we need not reach the government’s alternative argument that restitution was mandatory under 18 U.S.C. § 3663A.