April 28, 2017

Colorado Court of Appeals: Vacation and Sick Leave are Pecuniary Losses Compensable to Victim Under Restitution Act

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, April 20, 2017.

RestitutionVacationSick LeaveProximate CausePecuniary Loss.

Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury. After the court sentenced Perez, the prosecution requested restitution based on the victim missing 55 days of work after the accident, including use of vacation and sick leave. Perez argued that the victim’s expenditure of leave was not compensable and that he was not the proximate cause of the victim’s losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing that he was the proximate cause of the victim’s injury. The district court held that Perez was the proximate cause of the victim’s losses and ordered restitution.

On appeal, Perez claimed that the district court erred in holding that his actions were the proximate cause of the victim’s injuries because it did not make an express finding on the issue. The court’s rejection of Perez’s proximate cause contention necessarily implied that it found Perez to be the proximate cause of the victim’s injuries, and the record supports that finding. The conduct underlying the charge of leaving the scene of an accident resulting in serious bodily injury was Perez hitting the victim with his car. The crime for which Perez pleaded guilty arose from acts that injured the victim. Therefore, there was no error in this finding.

Perez next contended that vacation and sick leave are not compensable under the Restitution Act (the Act) because the loss of leave is not a pecuniary loss. The court of appeals concluded that expenditure of vacation and sick leave is a loss of employee benefits comparable to lost wages that is compensable under the Act.

Lastly, Perez contended that the court erred in calculating his restitution to the victim by five work days. The award of an additional five days of missed work was not supported by the record and results in a windfall to the victim, and must be reduced.

The order was affirmed in part and the case was remanded for reduction of the restitution award.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Police Department Can Be “Victim” For Restitution Purposes

The Colorado Court of Appeals issued its opinion in People v. Oliver on Thursday, December 15, 2016.

Murder—Officer—Restitution—Victim—Workers’ Compensation Benefits—Beneficiaries.

During an altercation at City Park, defendant pulled a gun and fired it in the direction of a group of people. One of the shots struck a nearby Denver police officer in the head and killed her. Defendant pleaded guilty to second degree murder. The district court sentenced him and ordered him to pay restitution to the Risk Management Department of the City and County of Denver (Department) in the amount of $365,565.07 for medical costs and survivor benefits resulting from the officer’s death. Defendant filed a Crim. P. 35(a) motion to correct the award as an illegal sentence. After a hearing, the court denied the motion and reaffirmed the award.

On appeal, defendant contended that the Department was not a “victim” for purposes of restitution. The Denver Police Department (DPD) is an agency of the City and County of Denver. The Department acted as the workers’ compensation insurance company for the DPD and the City and County of Denver as a whole. Because the Department was an insurer who had a contractual relationship with the deceased officer, it fits squarely within the definition of a victim insurer under the restitution statute. The district court did not err in concluding that the Department was a victim of defendant’s crime for purposes of restitution.

Alternatively, defendant contended that even if the Department was a victim under the restitution statute, the amount of restitution ordered by the district court was not authorized by law because the death benefits constituted “loss of future earnings,” which is specifically excluded from the statutory definition of restitution. The death benefits paid by the Department were calculated using the deceased employee’s average weekly wage but are not equivalent to “loss of future wages.” Rather, the payments were more properly considered the Department’s “out-of-pocket expenses” and “anticipated future expenses,” both of which are included in the statutory definition of restitution. Accordingly, the district court did not err in awarding the restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Restitution Does Not Create a Debtor-Creditor Relationship with Victim

The Colorado Court of Appeals issued its opinion in People v. Foos on Thursday, September 22, 2016.

Bankruptcy—Discharge ofRestitution Order—Bad Faith.

In 2012, the U.S. Bankruptcy Court discharged Foos’s debts against the three victims in this case. Prior to his bankruptcy proceedings, Foos owed money to these victims. In 2013, Foos was charged with two counts of felony theft and one count of defrauding a secured creditor. Foos resolved these charges by pleading guilty to the charge of defrauding a secured creditor in exchange for dismissal of the other two counts. He stipulated to a deferred judgment and sentence with a requirement for full restitution.

On appeal, Foos argued that it was error to order him to pay restitution because he discharged his debts in bankruptcy before the charges were filed against him. C.R.S. § 18-1.3-603(4)(d) precludes the discharge of restitution orders in bankruptcy, and restitution serves a different purpose than bankruptcy. Accordingly, the district court did not err in ordering Foos to pay restitution.

Foos also argued that he was prosecuted in bad faith. The court of appeals noted that although the original prosecutor had a “cozy relationship” with Foos’s creditors, she was replaced with a special prosecutor who had no personal connection to the case and who made an independent decision to move forward with the prosecution. Moreover, Foos waived his right to challenge the validity of the charges by pleading guilty.

Finally, Foos argued that he was ordered to pay restitution to a listed victim in a theft count that was dismissed as part of the plea agreement. Colorado case law is clear that, for purposes of restitution, a victim does not have to be one of the named victims of a conviction.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Request to Change Restitution Payee Is Not New Restitution Request

The Colorado Supreme Court issued its opinion in Johnson v. People on Monday, September 12, 2016.

Restitution.

This case presents the narrow question of whether the People’s motion to change a restitution payee from one victim identified in a restitution order to other victims identified therein (whom the first victim was obliged to pay but did not pay) constitutes a new restitution request that must comply with the statutory requirements for making restitution requests. The county court rejected petitioner’s argument that the People’s request to change the restitution payee was effectively a new restitution request and was untimely, and it granted the People’s motion to change the restitution payee. The district court affirmed on appeal, and the Supreme Court then granted certiorari. Like the district court, the Court concluded that on the facts presented here, the People’s motion to change the restitution payee did not constitute a new restitution request. Accordingly, the Court affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Confrontation Clause Right Exists in Restitution Hearing

The Colorado Court of Appeals issued its opinion in People v. Vasseur on Thursday, July 14, 2016.

Colorado Organized Crime Control Act—Restitution—Sixth Amendment—Right of Confrontation—Hearsay—Foundation—Authentication.

Vasseur pleaded guilty to violating the Colorado Organized Crime Control Act for her participation in an Internet scam through which money was stolen from 374 victims. She was sentenced and the district court imposed $1,010,467.55 in restitution, based on a spreadsheet summarizing the criminal acts and the testimony of the primary investigator on the case.

Vasseur appealed the restitution order, contending that the district court erred when it considered the summary spreadsheet in imposing restitution because (1) it violated her Sixth Amendment right of confrontation, and (2) the spreadsheet contained inadmissible hearsay, lacked a proper foundation, and had not been properly authenticated. The right of confrontation and the Colorado Rules of Evidence do not apply to sentencing proceedings, including restitution hearings. Therefore, the district court did not abuse its discretion when it relied on the spreadsheet in determining the amount of restitution.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Amendment of Restitution Award Not “Ministerial” Because it Affects Sentence

The Colorado Court of Appeals issued its opinion in People v. McLain on Thursday, May 19, 2016.

Defendant pleaded guilty to one count of theft and was sentenced to five years in community corrections. The prosecution requested restitution in the amount of $1,000 for the victim and $2,852.98 for the victim’s insurance company, to which the defendant did not object. The court granted the prosecution’s restitution request. Ten months later, the prosecution filed a Crim. P. 36 amended motion to impose restitution, maintaining she had made a clerical error and had neglected to request the $8,159.91 in losses sustained by the victim. The court granted the prosecution’s motion without waiting for a response from defendant. Five days later, Defendant filed an objection to the prosecutor’s request for additional restitution, arguing the request was untimely under the restitution statute and Crim. P. 36 did not apply. After a short hearing, the court determined it could correct the prosecution’s “ministerial error” and amended the restitution order.

On appeal, Defendant argued the court could not amend a final order of restitution to increase his obligation. The court of appeals agreed. The court noted that restitution is part of a sentence, and once a sentence is imposed and the defendant begins serving it, an increase in restitution violates the prohibition against double jeopardy. Although the prosecution argued that it had reserved the right to increase the restitution amount, the court of appeals disagreed, finding instead that the prosecution had proposed a concrete figure without any reservation and the figure was accepted by the district court. The court of appeals further found that Crim. P. 36 could not be applied in this case since the restitution increase amended the sentence itself.

The court vacated the judgment and remanded with directions to reinstate the original restitution award.

Colorado Court of Appeals: Restitution Applicable When Defendant’s Conduct Caused Damage Regardless of Conviction

The Colorado Court of Appeals issued its opinion in People v. Ortiz on Thursday, April 27, 2016.

Vehicular Eluding—Victim—Restitution—Evidence—Hearsay.

After a deputy sheriff stopped defendant’s vehicle to investigate a report of shots fired by a person driving a vehicle like defendant’s, defendant sped away. The officer gave chase, bumping into defendant’s car several times before defendant stopped. The People charged defendant with a number of crimes. Defendant and the People reached a plea agreement under which defendant agreed to plead guilty to one count of aggravated driving after revocation prohibited (reckless driving) and one count of violation of a protection order and the People agreed to drop the other charges. The district court accepted the agreement and sentenced defendant. On request of the People, the court ordered restitution for the damages to the patrol car.

On appeal, defendant contended that because he did not plead guilty to an offense that specifically identified the state patrol as a victim, the state patrol was not a victim within the meaning of the restitution statutes. However, the state patrol was a victim of vehicular eluding, which was included among the charges against defendant. Therefore, it was a victim for purposes of the restitution statutes, even though defendant pleaded guilty to other charges. Accordingly, the district court did not err in allowing the state patrol to seek restitution.

Defendant also contended that the evidence was insufficient to support the restitution award because it was entirely hearsay and basing the award on hearsay violated his right to due process. The prosecution is not limited by the rules of evidence in proving an amount of restitution, and an award of restitution may be based solely on a victim’s impact statement, which is hearsay. Considered as a whole, the evidence sufficiently showed the cost of the damage and that defendant caused it. In addition, defendant’s counsel conducted thorough cross-examination about the damage to the patrol car and defendant chose not to rebut the evidence; therefore, there is no due process violation.

The order was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Videos Properly Admitted as Animations, Not Simulations

The Colorado Court of Appeals issued its opinion in People v. Douglas on Thursday, April 21, 2016.

Collision—Injuries—Animation—Simulation—Evidence—Restitution.

While driving his car, defendant looked down for a moment and struck a bicyclist with his vehicle, causing her injuries. Defendant drove away, claiming he had not seen the bicyclist. A jury convicted defendant of leaving the scene of an accident, failure to report an accident, and careless driving.

Defendant appealed the judgment and restitution order, contending that the trial court should not have allowed the prosecution to show the jury three short video depictions of an automobile-bicycle collision. He asserted that the videos were simulations — which are scientific evidence offered as substantive proof and must meet more rigorous foundational requirements for admission than animations, which are demonstrative evidence — and that the prosecution did not lay an adequate foundation to support the court’s decision to admit them. Defendant asserted alternatively that if the videos were animations, they were inadmissible because they were an unfair and inaccurate depiction. The Colorado Court of Appeals decided the videos were animations. The videos were prepared by a state trooper, who was an accident reconstruction specialist, to represent the trooper’s opinion about how the collision had occurred. The videos were substantially similar to the collision they depicted. The trial court did not abuse its discretion when it decided the videos were animations and admitted them into evidence as demonstrative exhibits.

Defendant also contended that the trial court abused its discretion when it ordered him to pay restitution to the insurer. The restitution amount only included the bicyclist’s lost wages, the replacement cost of her bicycle and some equipment that was damaged by the collision, and her medical expenses. The amount did not include reimbursement for pain and suffering. Therefore, the court did not abuse its discretion.

The judgment and order were affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Government Lacks Authority to Garnish Retirement Accounts When Restitution Paid According to Schedule

The Tenth Circuit Court of Appeals issued its opinion in United States v. Martinez on Wednesday, December 16, 2015.

Toby Martinez was convicted of mail fraud and conspiracy and was ordered to pay roughly $2.7 million in restitution. The district court ordered that he was to pay the restitution through monthly payments of a percentage of his net disposable income. Upon leaving prison, Martinez was unable to obtain steady employment, and as a result owed relatively little through his court-ordered payment schedule. The government served writs of garnishment for two of Martinez’s retirement accounts, which were worth roughly $470,000 together. Martinez moved to quash the writs of garnishment in district court, but the court denied his motion. Martinez appealed, asking the court to consider whether the government can garnish assets beyond the amount currently due under the court-ordered payment plan. The Tenth Circuit determined it could not.

The Tenth Circuit began by analyzing 18 U.S.C. §§ 3613 and 3664, which allow the government to enforce orders of restitution as if they were liens or judgments in favor of the United States. The Tenth Circuit rejected the government’s argument that it could garnish the entire restitution amount, noting the argument incorrectly assumed the entire restitution amount was currently owed. The Tenth Circuit found that by statute, the district court—not the government—had the ability to determine how a defendant is to pay restitution. It is the government’s job to enforce the district court’s order. The Tenth Circuit analyzed whether Martinez owed the full restitution amount immediately or whether he owed only the installment payments until the full amount was paid. Analyzing the district court’s restitution order, the Circuit found that the district court ordered that Martinez owed only the installment payments. The Tenth Circuit noted that the full amount of restitution is owed only immediately only if the restitution order does not provide for installment payments. The Tenth Circuit also cautioned that the government’s position conflicts with the statutory directive to the district court to impose a payment schedule that reflects the defendant’s financial condition.

The Tenth Circuit reversed and remanded with instructions for the district court to grant Martinez’s motion to quash.

Colorado Court of Appeals: Restitution Award Appropriate When Based on Amount Actually Paid by CVCB

The Colorado Court of Appeals issued its opinion in People v. Bohn on Thursday, December 31, 2015.

Assault—Restitution—Lost Wages—Future Wages.

Defendant’s neighbor attempted to stop defendant from assaulting two people. Defendant pushed the neighbor down a flight of stairs, causing a broken bone in the neighbor’s foot. After defendant pleaded guilty to second-degree assault and third-degree assault, the prosecution moved for $9,985 in restitution to be paid to the Crime Victim Compensation Board (CVCB), which the court granted. The documentation attached to the motion showed that the CVCB had paid the neighbor $3,185 for the neighbor’s medical bills and $6,800 to the neighbor for his lost wages.

On appeal, defendant contended that the district court erred by ordering restitution based in part on the CVCB’s payment to a crime victim for lost wages when, at the time the CVCB paid the claim, at least a portion of the payment was for wages that the crime victim expected to lose in the future. A district court may order restitution to reimburse a CVCB for payments it made to a crime victim for lost wages, some of which covered post-payment periods, so long as the wages at issue were based on work actually missed before the restitution order was entered. Here, the district court did not abuse its discretion in ruling that the prosecution proved the neighbor’s lost wages by a preponderance of the evidence. The documentation that the prosecution submitted—a lost wage form from the neighbor’s employer and a letter from the orthopedic practice—was sufficient to show that, before the restitution hearing and the court’s order of restitution, the neighbor actually lost the wages that the CVCB reimbursed. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Incidental Mailings Triggered by Fraud Qualify as Mail Fraud Acts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Zander on Friday, July 24, 2015.

Jeffrey Zander began working for the Paiute Indian Tribe in Utah in 1998 as a tribal planner, and he later became the Tribe’s trust resource and economic development director. In 2004 or 2005, he recommended to the Tribe that it seek federal grant money to fund development of an Integrated Resource Management Plan (IRMP) for each of the Tribe’s bands. Between 2005 and 2007, Zander prepared grant proposals to request funding from the Bureau of Indian Affairs (BIA) for the Tribe to develop IRMPs for each of its bands. Each proposal represented most of the grant funds would be used to hire and pay an outside facilitator to assist the Tribe. Each proposal was approved by that band’s council and the Tribal Council, then submitted to the BIA, which approved and awarded five IRMP development grants for a total of $165,000. Instead of hiring an outside consultant, Zander transferred the funds to four fictitious companies he created, then represented to the Tribe that these companies had provided consulting services for the IRMP development. The Tribe then issued checks to the companies, which were either mailed or hand-delivered to Zander. The Tribe then requested reimbursement from the BIA, which it approved, sometimes via fax.

Zander deposited the checks made out to the fictitious companies into his personal checking account and spent all of the $165,000. The Tribe learned of Zander’s scheme when a bank employee contacted it in March 2008 to ask about check made out to one of the fictitious businesses that Zander had tried to deposit in his personal checking account. The Tribe conducted a short investigation and fired Zander. The Tribe thereafter received a notice of collection from the BIA seeking repayment of the grant funds based on the Tribe’s failure to product the IRMPs the grants were intended to fund.

In February 2012, Zander was indicted on several charges, including mail fraud, wire fraud, money laundering, and failure to file tax returns. He was tried before a jury and convicted on all of the counts in the indictment. He was sentenced to 68 months’ imprisonment and ordered to pay $202,543.92 in restitution to the Tribe based on the actual grant funds, attorney fees, unemployment benefits, and Tribal employees’ time and travel costs associated with the case. He appealed, arguing five points of error: (1) insufficient evidence to support his mail fraud convictions; (2) insufficient evidence to support his wire fraud convictions; (3) a conditional challenge to his money laundering conviction; (4) a challenge to the procedural reasonableness of his sentence; and (5) a challenge to the restitution award. The Tenth Circuit addressed each in turn.

The Tenth Circuit meticulously examined Zander’s mail fraud challenge. Zander argued that although the BIA had mailed checks for the proposed IRMP development, those checks would have been mailed regardless of fraudulent intent had the Tribe submitted grant proposals. The Tenth Circuit rejected this argument, finding that although the mailings were an innocent side effect of Zander’s fraud, he set in motion the mechanism that caused the checks to be mailed. The Tenth Circuit compared Zander’s fraud to that of the defendant in Schmuck v. United States, where defendant altered the odometers of used cars and sold them to dealers at inflated prices. There, as in Zander’s case, although the mailings themselves were an innocent by-product of fraud, they would not have occurred but for the defendants’ fraudulent acts. The Tenth Circuit similarly rejected Zander’s wire fraud arguments, concluding that although the faxed themselves were innocuous, they occurred solely because of Zander’s fraudulent acts. Because Zander’s challenge to the money laundering conviction was conditional based on the Tenth Circuit’s findings on the mail and wire fraud counts, the Tenth Circuit affirmed the money laundering conviction.

Next, the Tenth Circuit addressed Zander’s challenges to the procedural reasonableness of his sentence and his restitution award. The Circuit found that the district court incorrectly included costs in the restitution award without requisite findings affirmatively showing that the costs were directly and proximately caused by Defendant’s conduct. These costs raised the base offense level for the conviction, resulting in a higher sentence. The Tenth Circuit reversed and remanded for resenting and recalculation of the restitution award based on the new offense level and based on evidence tying costs directly to Zander’s conduct.

The district court’s conviction was affirmed. The sentence and restitution award were reversed and remanded for recalculation.

Colorado Court of Appeals: Restitution Award Vacated Where No Evidence Defendant Proximately Caused Damage

The Colorado Court of Appeals issued its opinion in People in Interest of D.I. on Thursday, September 24, 2015.

Restitution— Unendorsed Expert Testimony.

A police officer responded to a dispatch of someone recklessly driving a car that had been reported stolen two days earlier. The sole occupant of the car, D.I., was arrested. After he was in custody, officers saw that the ignition had been “punched” so that it could be started with a screwdriver. They found a screwdriver near the driver’s seat and no keys.

D.I. was charged with theft, first-degree aggravated motor vehicle theft, and possession of burglary tools (the screwdriver). The juvenile court adjudicated D.I. for committing the crimes of second-degree aggravated motor vehicle theft and possession of burglary tools. He was sentenced to “up to two years of probation or further court order” and ordered to pay $3067.91 in restitution for damage to the car.

On appeal, D.I. argued the trial court abused its discretion when it ordered restitution because there was no evidence that he proximately caused the damage to the car. The Court of Appeals agreed. According to the court’s findings, the damage to the car was inflicted two days before the time the court found that D.I. exercised control over the car. Therefore, the restitution order must be vacated.

D.I. argued that it was error to admit unendorsed expert testimony from a lay witness when it allowed a police officer to testify about the use of screwdrivers to operate stolen vehicles. The Court concluded that even if some of the testimony should not have been admitted, any error was harmless. The judgment of conviction was affirmed and the restitution order was vacated.

Summary and full case available here, courtesy of The Colorado Lawyer.