United States v. French ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 17, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 09-1011
v. (D.C. No. 06-CR-00373-WYD-1)
(D. Colo.)
SAMMY EDWARD FRENCH, JR.,
a/k/a Samuel Edward French, Jr.,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, EBEL, and MURPHY, Circuit Judges.
Defendant-Appellant Sammy Edward French, Jr. was convicted by a jury of
seven counts of bank robbery, three of which were armed robberies, in violation
of 18 U.S.C. § 2113(a) and (d). He was sentenced to a term of imprisonment of
360 months followed by five years of supervised release. 1 Rawle 546-47. The court
also ordered him to pay restitution of $17,819.03 to the three victim banks. 1 Rawle
549. On appeal, Mr. French only challenges $927.03 of the restitution award to
Canon National Bank (Canon). Exercising jurisdiction under 28 U.S.C. § 1291
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
and 18 U.S.C. § 3742(a), we affirm the district court’s restitution order.
Background
In addition to the $6,616.00 taken from Canon during the robbery, the bank
also requested restitution for lodging, mileage, and meal expenses incurred due to
two non-testifying bank representatives’ attendance at court proceedings. 5 R. ¶
30; see Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. Mr.
French objected to restitution for the attendance-related expenses, arguing that
such costs were discretionary, incurred solely because of Canon’s internal
policies, and not requested by the other victim banks. 2 Rawle 7. The probation
officer responded that Canon was a victim of Mr. French’s bank robbery under 18
U.S.C. § 3663A(a)(2) and that restitution for attendance-related expenses is
authorized by 18 U.S.C. § 3663A(b)(4). 5 R. Addendum A-3.
During sentencing, the district court found that Canon was a victim under
§ 3663A. 4 Rawle 924. Over Mr. French’s objection, the district court found that the
Canon representatives’ attendance at the court proceedings was appropriate, as
were the requested expenses. 4 Rawle 924-25.
On appeal, Mr. French argues that the attendance-related expenses were not
a direct and proximate result of the robbery, but rather consequential expenses
that are impermissible bases for restitution. Aplt. Br. 17-19. He also argues that
the expenses were unnecessary under the Act. Aplt. Br. 19-21. He agrees that
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attendance-related expenses for the testifying victim bank teller would have been
proper had the government not already paid such expenses. Aplt. Reply Br. 6.
Discussion
We review the district court’s interpretation of the MVRA de novo, its
factual findings for clear error, and the amount of restitution awarded for abuse of
discretion. United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008), cert.
denied, 129 S. Ct. 2026 (2009). Mr. French does not dispute that Canon was a
victim under the Act, Aplt. Br. 17; Aplee. Br. 17, nor does he contest the amount
of the award for the attendance-related expenses, Aplee. Br. 10. Thus, we limit
our review to the legality of the restitution order for the Canon representatives’
attendance-related expenses.
Section 3663A(b)(4) requires courts to order certain defendants to
reimburse victims “for lost income and necessary child care, transportation, and
other expenses incurred during participation in the investigation or prosecution of
the offense or attendance at proceedings related to the offense.” Despite the plain
language of the Act, Mr. French argues that (1) § 3663A(a)(2) must be read in
conjunction with § 3663A(b)(4) to limit restitution to harm caused directly by the
bank robberies, Aplt. Reply. Br. 3-4, and (2) the Canon representatives’
attendance at court proceedings must have been necessary to qualify for
restitution under § 3663A(b)(4), Aplt. Reply Br. 6.
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The Act directs the sentencing court to order restitution for the victim of
the offense, and § 3663A (a)(2) defines the term “victim” as “a person directly
and proximately harmed as a result of the commission of an offense.” Mr. French
contends that any loss Canon suffered because it sent two bank representatives to
attend court proceedings was not directly or proximately caused by the robberies
but instead by Canon’s decision to send them even though their attendance was
not mandatory. Aplt. Br. 15; Aplt. Reply Br. 3. This argument confuses the
question of Canon’s status as a victim under the Act with the question of which
losses that flow from that status are covered by the Act. The Act plainly allows
victims to recover attendance-related losses even where the victim’s attendance is
not required. See United States v. McDonald, 108 Fed. Appx. 916, 917 (5th Cir.
2004) (upholding district court’s restitution order for victim’s expenses related to
his nonmandatory attendance as an observer at court proceedings under the plain
language of the MVRA). Thus, once it is established that Canon qualifies as a
victim—which is undisputed in this case—§ 3663A(b)(4) merely requires “the
included expenses be ‘necessary,’ and that they be ‘incurred during participation
in the investigation or prosecution of the offense or attendance at proceedings
related to the offense.’” United States v. Battista, 575 F.3d 226, 233 (2d Cir.
2009) (internal citations and quotation marks omitted). Because the expenses
were necessary for the Canon representatives’ attendance at proceedings related
to the offense, restitution was appropriate.
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AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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