August 24, 2019

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.

Tenth Circuit: District Court Empowered to Consider All Relevant Conduct When Calculating Loss for Sentencing Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Alisuretove on Monday, June 8, 2015.

Elvin Alisuretove pleaded guilty to one count of conspiracy to commit wire fraud after authorities discovered his connection in a scheme to “skim” bank information off debit cards and make cash withdrawals from ATM machines. Alisuretove was sentenced to 63 months’ imprisonment followed by 36 months’ supervised release and was ordered to pay $240,682.27 in restitution. Alisuretove appealed both his sentence and restitution amount, arguing the district court erred in determining his total offense level, in calculating the amount of loss associated with his conduct, and in determining the amount of restitution owed under the Mandatory Victims Restitution Act (MVRA).

The Tenth Circuit first examined the total amount of loss attributed to Alisuretove. Under the Sentencing Guidelines, a loss between $200,000 and $400,000 would result in a 12-level increase to Alisuretove’s base offense level of 1. Alisuretove contends the district court’s calculation of $360,856.80 total loss was “clearly erroneous” because no evidence showed he placed or used the skimming devices. Alisuretove asserted that the only loss that should be attributed to him was the $140,000 he told officers about after arrest. The Tenth Circuit noted that the district court was empowered to consider not just the conduct proffered by defendant but also all of defendant’s relevant conduct. In this case, Alisuretove’s guilty plea, statements to law enforcement, and other evidence supported the district court’s calculation of $360,856.80 total loss. The Tenth Circuit found no error in this calculation.

The Tenth Circuit next evaluated the restitution amount under the MVRA. Alisuretove contended the district court erroneously took into account losses suffered by twelve financial institutions even though only five were named in the indictment. The Tenth Circuit found the word “victim” in the MVRA is not limited to only those victims named in the indictment but rather encompasses any person harmed in the course of defendant’s criminal conduct. However, because neither the PSR nor the district court made any factual findings regarding the specific losses suffered by the financial institutions, the Tenth Circuit remanded for recalculation of restitution.

The district court’s judgment was affirmed in part, reversed in part, and remanded for further findings.

Tenth Circuit: Restitution Must Be Based on Actual Losses Suffered by Victims

The Tenth Circuit Court of Appeals issued its opinion in United States v. Howard on Tuesday, April 28, 2015.

Roger Howard pleaded guilty to three counts of wire fraud and one count of money laundering arising in his participation in three mortgage fraud schemes. The district court sentenced Howard to 108 months’ imprisonment and ordered him to pay $8,862,191.18 in restitution. Howard appealed, arguing the district court improperly increased his offense level by miscomputing the loss to the mortgage lenders and awarded restitution without evidence of the victims’ actual losses.

The Tenth Circuit first addressed Howard’s offense level argument. Under the fraud sentencing guideline, the offense level is based on the amount of loss. The district court calculated the loss based on the unpaid portion of the loan and determined it to be $8,862,191.18, which required an offense level of 20 because it was between $7 and $20 million. Defendant disputed the loss calculations, arguing the government’s evidence was insufficient to support $709,588 in losses on eight loans, the court should have reduced the loss amount by $973,935 to account for interest payments, and the court should not have included $313,261 in losses to a downstream noteholder. However, Defendant failed to raise his loss arguments below, and the Tenth Circuit evaluated for plain error. Finding none, the Tenth Circuit affirmed the district court’s offense level calculation.

As to the restitution calculation, Defendant argued the court wrongly computed the total amount due on the loans rather than the harm suffered by individual victims in calculating loss. The Tenth Circuit noted that under the Mandatory Victims Restitution Act, restitution is intended to make victims whole and cannot unjustly enrich them. By calculating restitution based on the amount due on the loans rather than the amount of loss actually suffered by victims, the district court applied an incorrect methodology. The Tenth Circuit remanded for the district court to vacate its restitution award and redetermine restitution based on actual victim losses.

The judgment of the district court was affirmed in part, reversed in part, and remanded for further proceedings.

Colorado Court of Appeals: Trial Court Need Not Make Specific Findings to Revoke Probation

The Colorado Court of Appeals issued its opinion in People v. Roletto on Thursday, April 9, 2015.

Probation Revocation—Failure to Pay Restitution.

Defendant pleaded guilty to defrauding a secured creditor and to second-degree perjury. He was sentenced to a five-year probation period, with a condition that he pay restitution on a monthly basis.

About midway through his sentence, the probation department filed a probation revocation complaint, asserting defendant had failed to pay restitution. At the hearing, defendant argued that he was financially unable to pay restitution. He testified that he could not work because he suffered from chronic pancreatitis and his criminal record would deter him from obtaining work. The trial court found no evidence to support defendant’s assertions. It revoked his probation and resentenced him to another probationary term.

On appeal, defendant argued that the court applied an incorrect legal standard in determining whether he was able to pay restitution. Specifically, he argued that the court was required to find: (1) a job was available for him; (2) the job would produce an income adequate to meet his obligations; and (3) he justifiably refused to take the job.

The Court of Appeals concluded that these express findings were not necessary to revoke probation. A defendant has the burden of proving by a preponderance of the evidence that he or she is unable to pay restitution. The defendant’s burden is a question of fact to be determined by the trial court, and the court may consider numerous factors in making that determination. Here, the court’s finding that defendant was able to pay was based on copious evidence in the record.

Defendant also argued that the court improperly relied on information it read in the newspaper to find he was unable to pay. While making its finding and ruling, the court stated: “In the newspaper, this morning, I read that there were jobs available.” Defendant argued that this statement demonstrated the court improperly relied on “hearsay evidence” to find that he had violated the restitution condition. However, the record does not suggest the court used the information as evidence against defendant; rather, the statement was a casual observation. Moreover, the parties’ dispute did not center on whether jobs were generally available. Instead, defendant argued that his medical condition rendered him unable to work. As such, the availability of jobs was not dispositive. The judgment was affirmed.

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

Colorado Court of Appeals: Cost of Installing Bars on Victim’s Window Improperly Assigned as Restitution

The Colorado Court of Appeals issued its opinion in People v. Martinez on Thursday, April 9, 2015.

Identification—Physician–Patient Privilege—Restitution.

The victim awoke one morning to a noise outside her second-floor bedroom. She walked to the bathroom and saw a man standing on her roof, trying to enter the bathroom window. Seeing the victim, the man ran away. Defendant was found by police hiding in a row of bushes near the victim’s house, and the victim positively identified defendant at the scene as the person who attempted to enter her residence. Defendant was convicted of attempted first-degree criminal trespass, third-degree criminal trespass, and criminal mischief

On appeal, defendant claimed that the district court erred when it admitted evidence that the victim previously identified him as the man she saw in her window and allowed her to identify him again at trial. “One-on-one show-ups” are disfavored because they tend to be suggestive, but they are not per se invalid. Here, the victim had a good opportunity to view defendant trying to enter her residence, she described defendant to the police when they arrived at the scene, she immediately identified defendant when the police presented him to the victim at the scene, and the police did not make any suggestive comments during the procedure. Therefore, the district court did not err in denying defendant’s motion to suppress the identification evidence.

Defendant argued that the district court erred when it allowed Dr. Stafford, the physician who treated defendant at the hospital that evening for a fractured right heel, to testify because defendant had not waived the physician-patient privilege. A physician who treats an injury that he has reason to believe involves a criminal act has a duty to report the injury to the police, which abrogates the privilege as to the medical examination and diagnosis, but not as to any statements made by the patient. Dr. Stafford had reason to believe defendant’s injury involved a criminal act. In addition, his testimony was limited to his examination and diagnosis and he did not disclose any statements defendant made in the course of his treatment. Therefore, Dr. Stafford’s testimony fell within the exception created by the reporting statute.

Defendant further argued that the district court erred when it ordered restitution of $489 for the cost of installing bars on the victim’s bathroom window because there was no showing that his conduct proximately caused the expense. Expenses resulting from a general feeling of insecurity are too attenuated to qualify as restitution. Here, the court failed to find that the expense of installing bars was the result of a specific, ongoing threat related to defendant’s conduct as opposed to a general feeling of insecurity. Therefore, this part of the restitution order was vacated.

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

Tenth Circuit: Mandatory Victim Restitution Act Requires Verified Proof of Actual Losses

The Tenth Circuit Court of Appeals issued its opinion in United States v. Ferdman on Friday, February 13, 2015.

Joshua Ferdman and three co-conspirators concocted a plan in which they obtained account information for several corporate customers of Sprint. Defendant impersonated account representatives and purchased cell phones from various Sprint stores, charging them to the corporate accounts. After he was caught, he pled guilty to a two-count indictment. He was sentenced to 15 months in prison and ordered to pay $48,715.59 in restitution pursuant to the Mandatory Victims Restitution Act (MVRA). The court calculated the restitution amount based on what Sprint referred to as the “retail unsubsidized price” of 86 stolen phones, plus Sprint’s shipping and investigative costs. Defendant appeals the restitution order, arguing the government’s proof of loss was insufficient to support the award.

The Tenth Circuit first analyzed the MVRA in detail in light of last term’s Supreme Court decision in Paroline. The Tenth Circuit emphasized that restitution is intended to make victims whole, not unjustly enrich them or provide them a windfall. The Tenth Circuit determined the MVRA is intended to compensate for actual losses, not merely speculated losses, but does not preclude a district court’s exercise of discretion in determining actual loss. The government bears the burden of proof to demonstrate the actual amount of loss.

In this case, Sprint’s regional manager of investigations submitted an unverified letter setting forth Sprint’s losses, basing its calculations on the “retail unsubsidized price” of each fraudulently obtained phone, $449 to $549 per phone. The letter also listed estimated shipping costs, travel expenses, investigatory expenses, and GPS activation expenses, listing Sprint’s estimated total loss as $48, 715.59.

Defendant argued the better measure of actual loss was the price he paid per phone, or $149 to $199 per phone, and repeatedly questioned the government’s evidence of actual losses. Defendant pointed out that the government did not present any evidence his crimes caused Sprint to lose retail sales or attendant profits. The district court denied an evidentiary hearing on the restitution amount, and found the MVRA’s “value of the property” language broad enough to cover lost profits.

The Tenth Circuit found that the government’s complete lack of verified evidence precluded a restitution award. Because the MVRA requires proof of actual losses, the Tenth Circuit vacated the district court’s restitution award and remanded for further proceedings.

Tenth Circuit: Specific Findings Must be Made Before Occupational Restrictions Imposed

The Tenth Circuit Court of Appeals issued its opinion in United States v. Dunn on Tuesday, February 10, 2015.

Michael Dunn was convicted of possession, receipt, and distribution of child pornography and sentenced to 144 months’ imprisonment followed by 25 years’ supervised release after placing images of child pornography in a shared folder on a peer-to-peer file sharing network. The district court imposed several conditions of supervised release, including restricting Dunn’s ability to use and access computers and the internet, and also imposed restitution based on a request from one of the minors depicted in the images Dunn shared. Prior to his conviction, Dunn was a computer teacher and computer technician. Dunn appealed, arguing: (1) the jury was erroneously instructed that by placing the child pornography images in the shared folder, he could be convicted on the distribution charge; (2) his sentences for receipt and distribution are duplicitous; (3) the district court failed to make the necessary findings regarding the occupational restriction imposed during his supervised release; and (4) the district court applied the wrong legal standard in determining the amount of restitution he was required to pay.

The Tenth Circuit first examined the jury instruction issue, and, following its precedent, found that defendant’s knowing placement of the child pornography files into a shared folder was sufficient to constitute distribution. Dunn also argued that the instructions forced the jury to accept the prosecution’s explanation of how the peer-to-peer software worked, but the Tenth Circuit found nothing to support this conclusion, finding instead that the jury was free to accept either the prosecution’s or the defense’s evidence.

As to Dunn’s second point on appeal, the prosecution conceded that Tenth Circuit precedent precluded separate sentences for both receipt and possession of child pornography regarding the same images. The Tenth Circuit agreed and remanded on this point for vacation of one of the sentences.

Dunn also argued that the district court impermissibly imposed special conditions on his release that prevented him from being employed without making specific findings. The 25-year term of special conditions of Dunn’s release include numerous restrictions on Dunn’s ability to use computers and the internet, which impact his employment as a computer technician and computer teacher. Because the district court did not make specific determinations regarding the necessity of the occupational restrictions and did not impose the restrictions for the minimum time necessary, the Tenth Circuit remanded with instructions for the district court to vacate the restrictions and reconsider the issue with proper findings.

Finally, Dunn argued, and the prosecution agreed, that the district court’s imposition of the victim’s entire amount of restitution was inconsistent with the Supreme Court’s decision in Paroline v. United States. The Tenth Circuit agreed, and, analyzing Paroline‘s effect on restitution awards in child pornography cases, remanded for the district court to consider Dunn’s actual contribution to the victim’s damages.

The judgment was affirmed in part, reversed in part, and remanded with instructions.

Colorado Court of Appeals: Prosecution for Forgery Not Precluded Where Conduct Also Falls Under Employment Penalty Statute

The Colorado Court of Appeals issued its opinion in People v. Clanton on Thursday, February 12, 2015.

Unemployment Compensation Benefits—Forgery—CRS § 8-81-101(1)(a)—Equal Protection—Restitution—Statutory Penalty.

Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The trial court found defendant guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a 50% statutory penalty of $4,132.50, which the court believed was required by CRS § 8-81-101(4)(a)(II).

On appeal, defendant contended that he was unlawfully convicted of forgery. He argued that CRS § 8-81-101(1)(a) was the appropriate statute under which he should have been charged, because his misconduct involved making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits. CRS §8-81-101 does not address all criminal activity that may occur in the unemployment compensation context; rather, it addresses certain specific acts that may occur in the context of an application for benefits. Because the General Assembly did not intend to preclude prosecution for forgery where the conduct underlying the charge also arguably violates CRS § 8-81-101(1)(a), the People had the discretion to charge defendant with the more serious offense.

Defendant also contended that the forgery statute, CRS § 18-5-102, fails to provide an intelligible standard by which to differentiate the conduct proscribed from that proscribed by CRS § 8-81-101(1)(a). Therefore, charging him under the forgery statute violated his constitutional right to equal protection of the laws. The forgery statute applicable here includes elements that CRS § 8-81-101(1)(a) does not. Accordingly, the People could charge defendant with forgery without violating his right to equal protection of the laws.

Defendant further contended, the People agreed, and the Court of Appeals concurred that the district court should not have assessed the 50% penalty provided for in CRS § 8-81-101(4)(a)(II) as part of his restitution obligation. That portion of defendant’s sentence, including the statutory penalty as restitution, was vacated, and the case was remanded to the district court to correct the mittimus to reflect the proper amount of restitution.

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

Colorado Court of Appeals: Defendant Not Required to Pay Restitution for Sexual Assault Nurse Exam

The Colorado Court of Appeals issued its opinion in People v. Rogers on Thursday, August 28, 2014.

Restitution—Sexual Assault Nurse Examiner (SANE) Examination—Forensic Evidence—Cost of Prosecution.

Defendant offered the victim a ride in his car and then drove her behind a building, where he parked the car. He threatened her with a knife and forced her to perform oral sex on him. After the victim called the police, she was examined by a sexual assault nurse examiner. Defendant pleaded guilty, and the court granted the prosecution’s request for the $500 in restitution to be paid to the Aurora Police Department for the cost of the examination.

On appeal, defendant contended that the district court erred in awarding restitution to the Aurora Police Department for the cost of the examination. The Court of Appeals agreed. The examination was for the purpose of collecting forensic evidence, so the Aurora Police Department was not a “victim” under the applicable version of the restitution statute. Additionally, the examination was not an “extraordinary direct public investigative cost” under CRS §18-1.3-602(3)(b). Further, because the examination was conducted beforeformal legal charges were filed, the cost of the exam was not recoverable as a cost of prosecution. The order was reversed and the case was remanded with directions.

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

Colorado Court of Appeals: Jury Properly Instructed on Element of Self-Defense

On Thursday, April 24, 2014, the Colorado Court of Appeals issued its opinion in People v. Lane.

Jury Instructions—Lay Testimony—Expert Testimony—Mental Examination—Restitution.

After consuming several drinks, defendant Jason Lane and the victim went to Lane’s motel room in Aurora, where the victim and a neighbor of Lane’s smoked crack cocaine. Afterward, Lane permitted the victim to spend the night. According to Lane, he awoke in the middle of the night to find the victim groping his chest and genitals over his clothing. Lane claimed he acted in self-defense by stabbing the victim with a steak knife thirteen times in the chest, killing him. The jury convicted Lane of second-degree murder, and the trial court sentenced him to forty-five years in prison. The trial court also ordered Lane to pay restitution to all three of the victim’s siblings.

On appeal, Lane contended that the trial court erred in giving the jury improper jury instructions. The applicable self-defense statute emphasizes the reasonableness of a defendant’s use of self-defense. Here, the trial court properly instructed the jury on this element, and defense counsel did not tender an alternative instruction or raise further objections. The court also properly instructed the jury on the issue of defendant’s claim of an elemental traverse, which does not place the burden on the prosecution to disprove this type of self-defense.

Lane also contended that the trial court erred in excluding certain expert and lay testimony. The court did not err in finding that Lane’s request for expert testimony concerning post-traumatic stress disorder triggered Lane’s requirement to undergo a court-ordered examination for this condition, which Lane refused to do. The court also did not abuse its discretion in denying Lane’s request to present lay witnesses to testify about physical and sexual abuse perpetrated against him when he was a young child and an adolescent, because this testimony was too remote and irrelevant without expert testimony to explain the impact of such incidents on Lane’s mental state.

Lane further contended that the trial court erred in limiting the cross-examination of D.B., a prosecution witness who worked at the bar where Lane and the victim met the night of the crime. However, the record shows that defense counsel elicited, and the jury had ample information about, D.B.’s felony conviction and background to assess her credibility. Therefore, the trial court did not abuse its discretion in excluding the further details of this issue.

Finally, Lane contended that the trial court erred in awarding restitution for the travel expenses of all three of the victim’s siblings to attend the trial. Because the statute permits such restitution when a victim is deceased, the trial court did not err in awarding restitution to the victim’s siblings. The judgment and order were affirmed.

Summary and full case available here.

Colorado Court of Appeals: No Error in Ordering Restitution for Injuries Related to Not Wearing Seatbelt

The Colorado Court of Appeals issued its opinion in People v. Sieck on Thursday, March 13, 2014.

Restitution—Injuries—Failure to Wear Seatbelt—Intervening Cause.

Defendant was driving a car in excess of 110 miles per hour after consuming alcohol and drugs. He lost control of the car. One of the two passengers (J.P.) was ejected from the car as it rolled over, and he sustained a permanent debilitating brain injury. Defendant pleaded guilty to the charges, and the court granted the prosecution’s motion for $833,194.10 in restitution for medical expenses, out-of-pocket costs, and lost wages related to J.P.’s injuries.

On appeal, defendant contended that the trial court erred when it ordered him to pay restitution for losses that were attributable to J.P.’s failure to wear a seatbelt. The failure to wear a seatbelt is not gross negligence, and thus is not an intervening cause relieving a defendant of responsibility for criminal conduct. Therefore, the trial court did not err in granting the prosecution’s motion for restitution.

Summary and full case available here.