Sunday, April 11, 2010

Case o' The Week: Not the "End of story as far as" Ninth is Concerned - Andrews and Restitution

Judge Alarcón (left) gives us a good restitution holding within a well-written decision; a useful primer for litigating the restitution issues. United States v. Andrews,__ F.3d __, 2009 WL 1338138 (9th Cir. April 7, 2010), decision available here.

Players: Nice win for ED Wa. & Idaho AFPD Matthew Campbell.

Facts: Andrews pleaded guilty to assault resulting in serious bodily injury. Id. at *1. By the time of sentencing the victim had already been reimbursed for medical expenses and lost income by a state victim-compensation agency. Id. at *1. At the restitution hearing the district court ordered Andrews to reimburse this state agency over $54,000 for its payments. Id.

The defense objected, arguing that the victim’s disabilities were not, in fact, proximately caused by the injuries from the assault. Id. at *2. In support of this argument, the defense attempted to call an expert to testify regarding the actual reason for the victim’s cognitive disorder: was it the head injury from the assault, or another pre-existing condition? Id.

The district court refused to permit the expert testimony, concluding that the state agency had already made that determination about the causal link and had paid the bills: “End of story as far as I am concerned.” Id. at *3. Andrews appealed the restitution order.

“Andrews . . . 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 [the victim’s] disability.” Id. at *2 (internal quotations and citation omitted).

Held: “[The hearing transcript] demonstrate that the district court apparently found that Andrew’s conduct was the sole cause of [the victim’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 [the victim’s] ailments by a preponderance of the evidence . . . . 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 [the victim’s] mental and physical condition.” Id. at *3 (citation omitted).

Of Note: There is an interesting side issue in Andrews: can a federal district court order that restitution be paid directly to a third party – in this case, the state victim-agency? Id. at *4. Judges Clifton and Fernandez think so – they specially joined to argue that the controlling federal statutes permit such payment. Id. The defendant and dissenting Judge Alarcón disagreed with the majority. Id. at *9-*10. The panel’s decision has now created a circuit split on this issue. Id. at *10 (Alarcón , J., dissenting) (discussing United States v. Speakman, 594 F.3d 1165, 1174-77 (10th Cir. 2010)).

The majority rejects this whole dispute as an ‘angels on the head of a pin’ argument - after all, if the victim directly received the restitution he’d just have to cough it up to reimburse the state agency anyway. That argument, however, ignores the reality that a district court will tend to explicitly (as here in Andrews) or implicitly defer to the findings of a third party (like a state agency) who is already out-of-pocket to reimburse a victim. Judge Alarcón has the better argument - preserve this challenge with an eye towards some future en banc action on the brewing circuit split.

How to Use: Andrews is a clean, well-written opinion on restitution - Judge Alarcón recites the standards for determining restitution, explains the burden of proof, and recites the degree of causation required for a victim to obtain restitution. Id. at *2. It is a good “primer” case for how to determination restitution in the Ninth Circuit and is a useful starting point for restitution briefing and litigation.

For Further Reading: Attorney James Marsh, of the Marsh firm, has made a cottage industry out of suing for restitution on behalf of child pornography victims. See New York Times article here. The firm has replicated filings in many federal districts, seeking restitution claims for the same victim. Federal courts, the DOJ, and the defense bar have taken notice: there are some very good orders regarding the litigation that question the causation link. See order here. Andrews could be a welcome case for the defense in the Marsh restitution litigation.

Picture of the Honorable Arthur L. Alarcón from

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


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