Sunday, October 07, 2007

Case o' The Week: Microwave meth and MVRA, Brock-Davis

Microwave meth in Missoula, Montana motel makes for pretty good MVRA decision. See United States v. Rose Brock-Davis, __ F.3d __, 2007 WL 2828819 (9th Cir. Oct. 2, 2007), decision available here.

Admirable win by Montana AFPD John Rhodes. Interesting opinion with some important new MVRA rules, by Judge Tashima.

Facts: A housekeeper discovered a suspicious substance in a Missoula, Montana, motel where Rose Brock-Davis and her co-D had checked-in. 2007 WL 2828819, *1. A bust revealed a microwave and microwave precursors in their car. Id. at 1. The co-D warned cops to check another motel room: in it, they found an ice box with meth chemicals, and other material associated with a meth lab. Id. at *2. Brock-Davis pleaded guilty to fraud and identity theft, and conspiracy to manufacture meth. Id. at *1. At sentencing, the owner of the second motel sought restitution for professional clean-up of the meth chemicals, lost rental value of the room, and for asbestos clean-up – required or suggested by the DEA. Id. at *2. Over defense objection, the Court issued a restitution order of $13,248.45 to the hotel for all of the above “losses.” Id. at *3.

Issue(s): “Brock-Davis contends, first, that there was no statutory authorization for the restitution imposed, because the MVRA does not authorize remediation costs for a motel room. Second, she argues that the motel was not a “victim” of her offense as defined by the MVRA. Third, she contends that there was an intervening cause of the loss to the motel that prevents her from being liable for restitution. Fourth, she urges that inconsistencies in the amounts requested invalidate them. Fifth, she argues that she should not have been liable for lost income. Finally, she contends that she should not have been held liable for costs related to asbestos testing performed at the motel because these costs were not directly related to her offense of conviction.” Id. at *1.

Held: “Brock-Davis’ first four contentions are unpersuasive but, as to the fifth and sixth issues, we conclude that the district court erred when it awarded restitution for the motel’s lost income from the motel room and when it required restitution for the total amount of the unsegregated bill, which included asbestos-related costs. Accordingly, the restitution order will be vacated and remanded as to the issues of lost income and asbestos-related costs.” Id.

Of Note: There’s a number of new Ninth Circuit rules for Mandatory Victim Restitution Act (MVRA) cases in opinion. Judge Tashima holds that the MVRA covers restitution for repair of property - like motel rooms - to their pre-crime state. Id. at *4-*5. Second - and of concern – the Court allows restitution for the second damaged hotel, even though Brock-Davis didn’t plead to the meth in that room. Id. at *6. Instead, as noted above, she plead to a conspiracy involving an entirely different “meth” motel. This is a disappointing expansion of the MVRA which sweeps in what is effectively “relevant conduct” (although this is a holding based on amendments to the MVRA). Third, the Court reaffirmed that consequential damages – like the inability to rent rooms – are not included under the MVRA, and reverses the restitution order on that basis. Id. at *9. Finally, the Court emphasized the need for a causal link between the crime and restitution ordered: here, “asbestos testing and removal” didn’t cut it. Id. at *8.

How to Use: AFPD John Rhodes admirably takes-on a restitution order on pretty unsympathetic facts: meth contamination of a motel room. The decision illustrates that the MVRA is not without its limitations, and restitution orders that seek recovery beyond damage caused by the crime are can be successfully attacked. Note also that John preserved a Booker challenge for Supreme Court review, id. at 1 n.1; an example worth following .

For Further Reading: How many Ninth Circuit decisions involve meth in a motel in Missoula, Montana? A bunch: United States v. Barragan, 263 F.3d 919 (9th Cir. 2001); United States v. Barragan-Espinoza, 350 F.3d 978 (2003); United States v. Dowd, 417 F.3d 1080 (2005), and of course, Brock-Davis. For some interesting stats on Montana “ice,” visit the Montana Meth project at .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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