Saturday, May 14, 2011

Case o' The Week: An "Appealing" Restitution Case - Tsosie, Resitution, and Appellate Waivers

Restitution can be awkward business for everyone in the judicial process. Sometimes victims' claims can seem as fraudulent as our client's crimes -- and few AUSAs are keen to serve as a bill collector. There is no clear process for accurately determining restitution: claims are inevitably filed on the eve of sentencing, are never properly vetted through the presentence process, often have an emotional overlay, and rarely involve counsel. Claimants often want to speak at sentencing -- but are infrequently put under oath and are never cross-examined. Defense counsel for indigent clients rarely want to risk higher sentences by dickering over restitution claims that are very unlikely to ever get paid. And it is hard to advise about restitution: who knows at the guilty plea what restitution theories the victims will later come up with at sentencing?

In short, just the type of mess that should have an appeal available to sort it all out. Judge Berzon, happily, agrees. United States v. Tsosie, 2011 WL 1758785 (9th Cir. May 10, 2001), decision available here.

: Nice win for Az. AFPD’s Dan Kaplan and Sarah Stone, decision by Judge Berzon, partial concurrence and partial dissent by Judge Bea.

Facts: Tsosie pleaded guilty pursuant to a written plea agreement to abusive sexual contact with a minor, on a Navajo reservation. Id. at *1. The agreement jointly recommended 18 months (well-under 20% of the actual guideline range), but was silent on the amount of restitution. Id. At sentencing, the mother of the minor victim sought over $31,000 for expenses related to her repeated travel to a distant boarding school to visit her daughter. Id. at *2. This restitution request was supported by a long spreadsheet detailing the trips, and a declaration by a social worker filed the day before sentencing, explaining that the minor needed visits by a “loved family member to assist in the recovery process.” Id. at *2. The court sentenced Tsosie to eighteen months, and imposed the full restitution requested over defense objection. Id. Despite the plea agreement’s appellate waiver, Tsosie appealed the restitution order. Id. at *3.

Issue(s): “[Tsosie] contends that the appeal waiver was not knowing because he was not afforded notice of the amount of restitution to be ordered.” Id. at *3.

Held: “We agree with Tsosie’s . . . contention.” Id. “[W]e conclude that Tsosie’s waiver of appeal is ineffective as to the restitution order and so will consider his challenges to that order on their merits.” Id. at *5.

Of Note: Judge Berzon provides a persuasive explanation of why an appeal waiver is ineffective if there is no estimate of restitution. Unlike custodial terms – which are (theoretically) predictable thanks to statutory maximum sentences and the guidelines – the “sky is the only limit” to the potential restitution exposure of a defendant. Id. at *5. Therefore, the Ninth requires “a plea agreement to set forth the amount of restitution to which a defendant is exposed for the defendant to be able knowingly to waive his appeal of the restitution order.” Id. at *5. Here, notably, the restitution was far higher than anyone anticipated – even Probation didn’t recommend it. Moreover, Tsosie ultimately prevailed: the Ninth found insufficient evidence in support of the restitution order, and remanded for further findings. Id. at *7. The case gives Judge Berzon a nice illustration of why appellate waivers of restitution orders are unacceptable without some sort of notice of the amounts contemplated.

How to Use: Great decision, great holding, worrisome practical real-world impact (maybe). What if you have a fraud case, with a nice little negotiated loss amount calculated in a favorable plea agreement – and neither party really wants to describe hypothetical restitution amounts that don’t exactly jive with those plea agreement figures? (Particularly true for our indigent clients, where the likelihood of obtaining restitution is often nil.) In other words, is Tsosie’s requirement of restitution notice at the plea (in order to effectively waive appeal) going to muck with our negotiations over guideline loss amounts?

Maybe an “accurate and fairly circumscribed estimate of the range of the amounts” would be enough to lock-in the appellate waiver – although the panel neatly sidesteps that precise issue in this case. Id. at *3 n.4. Tsosie provides welcome appellate protection when the restitution order is unsupported or exceeds expectations – but beware that the decision may potentially complicate negotiated dispositions in unanticipated ways.

For Further Reading: Last week was a good one for the Arizona FPD. In United States v. Escalmilla-Rojas, 2011 WL 1797902 (9th Cir. May 12, 2011), the Ninth yet again looks askance at “Operation Streamline” – where fifty to seventy aliens are arraigned, plead guilty, and are sentenced en masse at a single efficient and dehumanizing hearing. Congrats to Arizona AFPD Jason Hannan and Defender Jon Sands (a fellow contributor to this blog), for fighting for the radical idea that a defendant should be advised of their rights at a plea colloquy less than two hours from being asked to surrender those rights.

Image of "Arizona Wins" from

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



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Anonymous Anonymous said...

In my opinion its ridiculous to waive the restitution in this case. Are you serious where was the pre-criminal action of molesting a child. Then it could have been prevented. The mother of the victim showed proof and therefore she can't get anything because it was a surprise to the criminal. I mean this is out right illogical. Where is the logic in this -So the victims mom loses in front of a criminal that molested her daughter. Are you serious. Who makes up these laws

Wednesday, November 16, 2011 5:03:00 AM  

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