United States v. Davis ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 06-30565
Plaintiff-Appellee,
v.  D.C. No.
CR 06-0021 DWM
ROSE BROCK-DAVIS,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
August 7, 2007—Seattle, Washington
Filed October 2, 2007
Before: William C. Canby, Jr., A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Tashima
13375
13378 UNITED STATES v. BROCK-DAVIS
COUNSEL
John Rhodes, Assistant Federal Defender, Missoula, Montana,
for the defendant-appellant.
Michael S. Lahr, Assistant United States Attorney, Helena,
Montana, for the plaintiff-appellee.
OPINION
TASHIMA, Circuit Judge:
This case is an appeal by Rose Brock-Davis (“Brock-
Davis”) of an order of restitution to cover, among other
things, testing and cleanup costs for a motel room she occu-
pied during the course of a conspiracy to manufacture
methamphetamine. Restitution was imposed pursuant to the
Mandatory Victims Restitution Act of 1996 (“MVRA”), 18
U.S.C. § 3663A. The parties agree that this statute applies and
we accept their agreement that it applies. We address in turn
Brock-Davis’ multiple contentions.
Brock-Davis contends, first, that there was no statutory
authorization for the restitution imposed, because the MVRA
does not authorize remediation costs for a motel room. Sec-
ond, she argues that the motel was not a “victim” of her
offense as defined by the MVRA. Third, she contends that
there was an intervening cause of the loss to the motel that
prevents her from being liable for restitution. Fourth, she
urges that inconsistencies in the amounts requested invalidate
them. Fifth, she argues that she should not have been liable
for lost income. Finally, she contends that she should not have
UNITED STATES v. BROCK-DAVIS 13379
been held liable for costs related to asbestos testing performed
at the motel because these costs were not directly related to
her offense of conviction. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in part and
vacate in part and remand.
In sum, Brock-Davis’ first four contentions are unpersua-
sive but, as to the fifth and sixth issues, we conclude that the
district court erred when it awarded restitution for the motel’s
lost income from the motel room and when it required restitu-
tion for the total amount of the unsegregated bill, which
included asbestos-related costs. Accordingly, the restitution
order will be vacated and remanded as to the issues of lost
income and asbestos-related costs.1
I. BACKGROUND
Brock-Davis was charged with conspiracy to manufacture
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and
846 (Count 1), and several fraud and identity theft counts
(Counts 2 through 5). She pled guilty without a plea agree-
ment to Counts 1 through 4, and Count 5 was dismissed with
prejudice upon the government’s motion. Count 1 charged
that the conspiracy between Brock-Davis and her co-
defendant, Perry Carl Willingham, occurred “[o]n or about
October 18, 2005, at or around Missoula, in the State and Dis-
trict of Montana.”
As outlined at the plea colloquy, Brock-Davis and Wil-
lingham checked into a motel room in Missoula, Montana, on
October 15, 2005. While they were absent from the room, on
1
Brock-Davis also raises a claim under Booker v. United States, 543
U.S. 220 (2005), but she acknowledges that this claim is barred by current
Circuit precedent, see United States v. Bussell, 414 F.3d 1048, 1060 (9th
Cir. 2005) (“In contrast to its application of the Sentencing Guidelines, the
district court’s orders of restitution and costs are unaffected by the
changes worked by Booker.”), and she wishes simply to preserve it. We
note that the claim is raised and we reject it.
13380 UNITED STATES v. BROCK-DAVIS
October 18, 2005, a housekeeper discovered such items as a
white powdery substance on the bathroom vanity, and identi-
fication cards, in the room. These items were reported to the
manager and then to police. Brock-Davis and Willingham
were apprehended soon thereafter. In a search of the trunk of
their car, police found precursors to the manufacture of
methamphetamine such as cold tablets and beakers, and found
a liquid that tested positive for methamphetamine. The police
also found a microwave oven and other items in the motel
room.
Willingham told police after he was arrested that they had
“better check room 107 at the Aero Inn in Kalispell” (“Room
107”). This information was relayed to the Kalispell Police
Department, and Kalispell detective Brian Fulford investi-
gated this report. In Room 107, Fulford discovered an ice
bucket with dark purple stains both on the bottom and floating
in clear liquid, an empty box for a microwave oven, a white
powdery substance, and other items he considered indicative
of a meth lab. He called the Northwest Drug Task Force and
advised them that there was a meth lab in Room 107. A motel
clerk identified Brock-Davis as the individual who had rented
the room.
The pre-sentence investigation report (“PSR”) included a
recommendation of restitution to the Aero Inn. At the sentenc-
ing, Brock-Davis objected to that recommendation. The gov-
ernment then called the owner and manager of the Aero Inn,
Gilbert Bissell, to testify in support of restitution. Bissell testi-
fied about what was found in Room 107, the initial cleaning
and testing of the room, and that he and his housekeeper spent
two days cleaning the room with bleach, upon the advice of
the police.
Bissell further testified that approximately one month later
he received a letter from the Montana Department of Environ-
mental Quality (“DEQ”), informing him that Room 107 was
listed as a “hazardous meth site” on the basis of reporting
UNITED STATES v. BROCK-DAVIS 13381
from a law enforcement agency. The letter specified that Bis-
sell could have the room de-listed by having it decontami-
nated as provided in the Montana Administrative Rules. He
forwarded to DEQ a copy of the police report and a record of
the testing he had initially conducted, but DEQ responded by
telling Bissell that the entity that had conducted the testing
was not one of its recognized test agencies and that Bissell
would have to have the room inspected and cleaned by a rec-
ognized agency. Bissell then selected WTR Consulting Engi-
neers (“WTR”) from DEQ’s approved list to do the
methamphetamine testing and cleanup work. After testing,
cleaning, and some negotiations, Bissell, WTR, and DEQ cre-
ated a scope of work, which DEQ approved. The room’s
adjoining doors were disposed of, along with furniture and
other items, and Bissell received a letter from DEQ stating
that Room 107 was no longer a hazardous site.
For purposes of restitution, Bissell claimed amounts in
damages including miscellaneous furnishing replacement
charges, and $7,186 to be paid to WTR. He testified that these
costs were an accurate listing of the costs incurred in order to
satisfy DEQ and to be able to rent Room 107. Bissell also
estimated that the closure of Room 107 for cleaning resulted
in lost revenue of $4,000, which he determined through a for-
mula of the room being shut for approximately six months,
with an occupancy rate during those winter months of 40 per-
cent, and similar room rentals of $40-$50 per night. He also
stated, however, that because the room was closed during the
winter rather than the summer, he “had the luxury of not rent-
ing it.” Bissell further allocated $120 in wages for the time
that he and his housekeeper spent cleaning the room with
bleach.
With respect to asbestos testing WTR conducted, the gov-
ernment conceded in its questioning at the sentencing hearing
that “[n]o one is contending [that the asbestos testing that was
done] has a direct relationship to a methamphetamine cooking
operation,” and elsewhere that the asbestos testing “was not
13382 UNITED STATES v. BROCK-DAVIS
directly related to the meth.” In explanation of the asbestos
costs, Bissell simply indicated that DEQ had requested asbes-
tos testing and that if asbestos had been present, the motel
would “have had to hire another special contractor to deal
with the asbestos removal.” Consistent with this testimony,
the WTR reports reflected that asbestos testing and cleanup
had been conducted which was “[i]n addition to the [m]eth
cleanup and decontamination.” In total, ceiling panels from
Room 107 and from four other rooms and a storage area were
tested for asbestos. Brock-Davis was ordered to pay $125 to
replace ceiling tiles removed for asbestos testing, as well as
the unsegregated WTR bill.
In support of her position in the sentencing proceedings,
Brock-Davis relied on an affidavit and testimony from foren-
sic scientist Gene Gietzen, who commented on the evidence
collected and concluded that he “[could not] state within a
reasonable degree of scientific certainty that th[e items found
in Room 107] would constitute a meth lab.” Gietzen also
commented on alternative remediation techniques that WTR
could have employed, but he admitted that the type of testing
in which WTR engaged would be necessary to tell whether
there had been a meth lab in a location. With respect to the
asbestos testing, Gietzen assented to defense counsel’s char-
acterization that it had nothing to do with methamphetamine.
Noting that the ceiling was tested for methamphetamine,
moreover, Gietzen indicated that “asbestos was part of the
construction, not related to any potential meth lab that could
or could not have been in that room.” (Emphasis added.)
The court sentenced Brock-Davis to a term of imprison-
ment of 32 months, 3 years of supervised release, and ordered
restitution, which included $13,248.45 to the Aero Inn for the
cleanup costs and a fraud claim.
II. STANDARD OF REVIEW
The legality of an order of restitution is reviewed de novo,
and factual findings supporting the order are reviewed for
UNITED STATES v. BROCK-DAVIS 13383
clear error. United States v. Hackett, 311 F.3d 989, 991 (9th
Cir. 2002); United States v. Stoddard, 150 F.3d 1140, 1147
(9th Cir. 1998). Provided that it is within the bounds of the
statutory framework, a restitution order is reviewed for abuse
of discretion. Hackett, 311 F.3d at 991; Stoddard, 150 F.3d at
1147.
III. DISCUSSION
A. Statutory Authorization
Brock-Davis argues, first, that the district court erred in
imposing restitution as to Room 107 because the MVRA does
not authorize restitution to remediate a motel room. Courts
cannot order restitution without statutory authorization,
United States v. DeSalvo, 41 F.3d 505, 511 (9th Cir. 1994);
United States v. Hicks, 997 F.2d 594, 600 (9th Cir. 1993), and
“ ‘[the] starting point in every case involving construction of
a statute is the language itself,’ ” Landreth Timber Co. v. Lan-
dreth, 471 U.S. 681, 685 (1985). We begin our analysis with
the language of the MVRA, and we conclude that there was
statutory authorization for the restitution in this case.
[1] The MVRA limits restitution for an offense resulting in
damage to or loss or destruction of property to either the
return of the property or, if that is “impossible, impracticable,
or inadequate,” to payment of “the greater of . . . the value of
the property on the date of the damage, loss, or destruction;
or . . . the value of the property on the date of sentencing, less
. . . the value (as of the date the property is returned) of any
part of the property that is returned.” 18 U.S.C.
§ 3663A(b)(1). Because of the similarities between the
MVRA and the Victim and Witness Protection Act of 1982
(“VWPA”), 18 U.S.C. § 3663, we may look to cases decided
under the VWPA for guidance in interpreting the MVRA. See
United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004);
United States v. Grice, 319 F.3d 1174, 1177 (9th Cir. 2003).
13384 UNITED STATES v. BROCK-DAVIS
In a case upon which Brock-Davis relies, the Fifth Circuit
stated that under the VWPA’s comparable language, “[t]here
is no provision authorizing restitution for . . . cost of restoring
property to its pre-theft condition . . . .” United States v.
Mitchell, 876 F.2d 1178, 1184 (5th Cir. 1989) (emphasis
added). Brock-Davis also contends that, had the MVRA
authorized such restitution, Congress would not have had to
enact legislation which explicitly authorizes the imposition of
restitution for cleanup of clandestine methamphetamine sites
in 21 U.S.C. § 853(q). See BFP v. Resolution Trust Corp., 511
U.S. 531, 537 (1994) (“It is generally presumed that Congress
acts intentionally and purposely when it includes particular
language in one section of a statute but omits it in another.”
(alteration, internal quotation marks and citation omitted)).2
[2] We have, however, specifically authorized restitution
comparable to the restitution ordered here. See United States
v. De La Fuente, 353 F.3d 766 (9th Cir. 2003). In that case,
the indictment charged “mailing threats to injure” as a result
of the defendant’s mailing of two letters suspected to contain
anthrax. Id. at 768. One of the letters was intercepted by the
post office. Id. The government sought restitution for the post
office, which opened the letter and suffered costs of evacua-
tion, lost employee work hours, and cleanup costs; for the
hazmat team’s cost of responding to the incident; and for the
health department’s cost of testing the letters. Id. at 768-69.
The defendant contended that these costs were not recover-
able under the MVRA because the damage did not constitute
harm within the meaning of the statute. Id. at 771.
In rejecting this contention, we pointed to the observation
in Hackett that the MVRA “directs that both physical injury
2
Section 853(q) provided, at the time relevant to the offense, that “[t]he
court, when sentencing a defendant convicted of an offense . . . involving
the manufacture of amphetamine or methamphetamine, shall . . . order res-
titution to any person injured as a result of the offense . . . .” 21 U.S.C.
§ 853(q)(3).
UNITED STATES v. BROCK-DAVIS 13385
and financial loss are compensable,” id. at 774 (quoting
Hackett, 311 F.3d at 992 (internal quotation marks omitted)),
and, after mentioning the portions of the MVRA quoted
above, we reasoned:
Although these calculation instructions are not easy
to apply where property is rendered temporarily
unusable, rather than completely destroyed or per-
manently damaged, we agree with the Third Circuit
that in this specific factual situation the district[ ]
court’s ‘only practical option was to order [the
defendant] to pay the cost of ensuring that the mail
room was in the same condition as just prior to the
time it became unusable.’
Id. at 774 n.6 (quoting United States v. Quillen, 335 F.3d 219,
222 (3d Cir. 2003)) (emphasis added).
In the Third Circuit case to which we referred, the court
similarly affirmed an order of restitution under the MVRA to
cover cleanup costs by a hazmat team employed by the recipi-
ent of a letter, the parole board, in the case of an anthrax scare
caused by the defendant’s mailing that contained (innocuous)
white powder. Quillen, 335 F.3d at 220-26. In Quillen, the
defendant relied on Mitchell, 876 F.2d 1178, the same case on
which Brock-Davis relies, but the Third Circuit declined to
follow it by simply “not[ing] . . . the decisions of other courts
(in cases involving damaged but not stolen property) that
approve restitution for repair costs, provided the victim is not
compensated twice for the same injury.” Quillen, 335 F.3d at
223 (collecting cases).
[3] Noting that the MVRA mandated recovery for “dam-
ages” to property and reasoning that “[t]here is no question
that [the defendant’s] ostensible contamination of the Parole
Board’s mail room effectively eliminated that facility’s use-
fulness until proved to be contamination free” and thereby
damaged it, id. at 225, the court agreed with the Fourth and
13386 UNITED STATES v. BROCK-DAVIS
Seventh Circuits holdings that “clean-up or repair costs may
be ordered under the MVRA . . . .” Id. at 226 (quoting United
States v. Menza, 137 F.3d 533, 539 (7th Cir. 1998); United
States v. Sharp, 927 F.2d 170, 174 (4th Cir. 1991)). We also
agree with these Circuits.3
[4] Accordingly, we reject Brock-Davis’ contention that the
restitution award against her lacked statutory authorization.
Although “restitution in a criminal case may only compensate
a victim for actual losses caused by the defendant’s criminal
conduct,” United States v. Gamma Tech Indus., Inc., 265 F.3d
917, 926 (9th Cir. 2001) (“Gamma Tech”), “[t]he primary and
overarching goal of the MVRA is to make victims of crime
whole.” Gordon, 393 F.3d at 1048; see also Hughey v. United
States, 495 U.S. 411, 416 (1990) (noting that “the ordinary
meaning of ‘restitution’ is restoring someone to a position he
occupied before a particular event”); Gordon, 393 F.3d at
1053 (“[T]he ‘purpose of restitution is . . . to restore the
defrauded party to the position he would have had absent the
fraud.’ ”); 18 U.S.C. § 3664(f)(1)(A). The restitution award
was statutorily authorized here.
3
These holdings are consistent with our holding in Hackett, 311 F.3d
989, that 21 U.S.C. § 853(q) authorized restitution for property damage
caused by a fire that resulted from the operation of a meth lab in a rental
house. There, Hackett pled guilty to aiding and abetting the manufacture
of methamphetamine based on a meth lab he operated with his co-
defendant. Id. at 990-91. A fire ensued when his co-defendant placed on
a hotplate a jar of chemicals, which exploded, while Hackett was not pres-
ent. Id. at 991. At sentencing, the district court ordered the defendants to
pay $47,997.74 restitution to the insurance company that paid that amount
to the owner for damages to the house in which the lab had been located.
Id. Because § 853(q) provides for restitution “as provided in [§ 3663A],”
21 U.S.C. § 853(q)(3), it seems clear that § 3663A authorizes comparable
restitution in a case even where a meth lab has not actually been in exis-
tence. See De La Fuente, 353 F.3d at 774 (citing Hackett); Hackett, 311
F.3d at 991-92 (rejecting argument based on distinction between § 853(q)
and the MVRA). Accordingly, Brock-Davis’ attempt to distinguish
Hackett on the ground that there was no meth lab in Room 107 is unavail-
ing. 21 U.S.C. § 853(q) specifically incorporates the MVRA and easily
coexists with it. See 21 U.S.C. § 853(q)(3).
UNITED STATES v. BROCK-DAVIS 13387
B. Presence of a “Victim”
Second, Brock-Davis contends that Bissell does not qualify
as a “victim” under the MVRA. Specifically, Brock-Davis
argues that Bissell was not directly and proximately harmed
by the criminal conduct to which she pled guilty, which was
a conspiracy to manufacture methamphetamine in Missoula,
Montana on or about October 18, 2005. As Brock-Davis
points out, Room 107 of the Aero Inn is located in a separate
motel in Kalispell, Montana — not in Missoula —, and Giet-
zen suggested that there was no proven manufacturing of
methamphetamine in Room 107. In addition, the indictment
and the plea hearing did not mention Kalispell, the Aero Inn,
or Bissell. Although this Circuit has warned against the risk
of vague allegations in an indictment in DeSalvo, 41 F.3d at
514, we reject Brock-Davis’ argument that the indictment did
not encompass any Kalispell conduct and that Bissell was not
a proper “victim.”
In accordance with the general rule that “the government
has the burden of establishing by a preponderance of the evi-
dence that the victim’s damages were caused by the conduct
of which the defendant was convicted,” United States v. Rice,
38 F.3d 1536, 1540 (9th Cir. 1994); see also 18 U.S.C.
§ 3664(e), there is language in the case law that seems to sup-
port Brock-Davis’ position, and to which she points. For
instance, we have noted that “ ‘[e]ven where the offense of
conviction involves a conspiracy or scheme, restitution must
be limited to the loss attributable to the specific conduct
underlying the conviction.’ ” United States v. Reed, 80 F.3d
1419, 1423 (9th Cir. 1996) (quoting United States v. Sharp,
941 F.2d 811, 815 (9th Cir. 1991).
This language, however, stems from cases, such as Sharp,
which interpreted the VWPA as it stood before it was
amended in 1990. See Reed, 80 F.3d at 1423 (quoting Sharp).
In 1990, the Supreme Court held that restitution may be
ordered under the VWPA “only for the loss caused by the
13388 UNITED STATES v. BROCK-DAVIS
specific conduct that is the basis of the offense of conviction.”
Hughey, 495 U.S. at 413. However, Congress amended the
VWPA in response to Hughey to overrule this holding, in
part. Reed, 80 F.3d at 1423. “After the amendment [to the
VWPA in 1990], restitution may be ordered for losses to per-
sons harmed in the course of the defendant’s scheme even
beyond the counts of conviction.” United States v. Rutgard,
116 F.3d 1270, 1294 (9th Cir. 1997) (emphasis added); see
also United States v. Lawrence, 189 F.3d 838, 846 (9th Cir.
1999) (same); United States v. Johnson, 132 F.3d 1279, 1286-
87 (9th Cir. 1997) (same).4 Accordingly, in detailing those to
whom it mandates restitution, the MVRA provides:
[T]he term ‘victim’ means a person directly and
proximately harmed as a result of the commission of
an offense for which restitution may be ordered
including, in the case of an offense that involves as
an element a scheme, conspiracy, or pattern of crimi-
nal activity, any person directly harmed by the
defendant’s criminal conduct in the course of the
scheme, conspiracy, or pattern.
18 U.S.C. § 3663A(a)(2) (emphasis added).
[5] In other words, “when the crime of conviction includes
a scheme, conspiracy, or pattern of criminal activity as an ele-
ment of the offense, . . . the restitution order [may] include
acts of related conduct for which the defendant was not con-
victed.” Lawrence, 189 F.3d at 846-47 (emphasis added)
(affirming an award of restitution for the full amount in a
fraud scheme, including “related conduct” in the amount of
$574,700, even though only $60,411 of that amount was “di-
rectly attributable to the acts for which the jury found [the
defendant] guilty”). See also Grice, 319 F.3d at 1175-79
4
Because the MVRA and VWPA utilize the same definition of victim,
our interpretation of the definition is the same for both the VWPA and the
MVRA. See Grice, 319 F.3d at 1177-78.
UNITED STATES v. BROCK-DAVIS 13389
(affirming an award of restitution for the full fraud scheme
even though the defendant only pled guilty to part); Johnson,
132 F.3d at 1286-87 (affirming an award of restitution for the
full fraud scheme even though the defendant only pled guilty
to two counts thereof). Thus, Brock-Davis’ contention that
restitution ordered under § 3663A can only be based on con-
duct specifically included in the offense of conviction is no
longer correct.
Even were the law of restitution not more expansive for
convictions for conspiracy than for other crimes, the district
court would not have committed clear error in finding that the
same conspiracy was at issue in Missoula and Kalispell. The
evidence disclosed the existence of two partial meth labs (in
the first hotel room and in Room 107) being created by
Brock-Davis and Willingham at the same time — with one
room containing the microwave and the other containing the
microwave box — and items in the trunk of the car in which
Brock-Davis and Willingham were apprehended that would
have supplemented either lab (or even have constituted the lab
itself) at the motels Brock-Davis and Willingham chose. In
addition, Willingham pointed the police to the Aero Inn in
Kalispell after his arrest, and Brock-Davis had checked into
that room — which contained evidence consistent with the
existence of a meth lab, as even defense witness Gietzen
acknowledged.
Finally, the fact that the Aero Inn was not mentioned in the
indictment is immaterial. See United States v. Dickerson, 370
F.3d 1330, 1339 (11th Cir. 2004) (“[T]he courts have held
that restitution may be ordered to a victim not named in the
indictment . . . .”) (collecting cases); United States v. Hensley,
91 F.3d 274, 277 (1st Cir. 1996) (finding restitution proper
when a scheme is involved “without regard to whether the
particular criminal conduct of the defendant which directly
harmed the victim was alleged in a count to which the defen-
dant pled guilty, or was even charged in the indictment”)
(second emphasis added) (citation omitted); Rice, 38 F.3d at
13390 UNITED STATES v. BROCK-DAVIS
1545 (declining to find “a per se rule that restitution is limited
to victims specifically named in the indictment”); United
States v. Angelica, 859 F.2d 1390, 1395 (9th Cir. 1988) (“The
trial court did not err in basing the restitution order on victims
not charged in the indictment.”); see also United States v.
Boyd, 222 F.3d 47, 50 (2d Cir. 2000) (finding restitution pay-
able under the MVRA “by all convicted co-conspirators in
respect of damage suffered by all victims of a conspiracy,
regardless of the facts underlying counts of conviction in indi-
vidual prosecutions”).
[6] On these bases, it is clear that Bissell was a “victim”
under the MVRA of Brock-Davis’ crime of conviction.
C. Intervening Cause
Third, Brock-Davis contends that the “excessive and ridicu-
lous cleanup costs imposed by DEQ” constituted an interven-
ing cause of the loss to the Aero Inn and render the restitution
amount unwarranted. “[T]he main inquiry for causation in
restitution cases becomes whether there was an intervening
cause and, if so, whether this intervening cause was directly
related to the offense conduct.” United States v. Meksian, 170
F.3d 1260, 1263 (9th Cir. 1999). In this inquiry, “ ‘[t]he
causal chain may not extend so far, in terms of the facts or the
time span, as to become unreasonable.’ ” Hackett, 311 F.3d at
993 (quoting Gamma Tech, 265 F.3d at 928 (citations omitted)).5
We reject Brock-Davis’ contention.
5
As a separate point warranting mention, there is no substantiation for
Brock-Davis’ argument that Montana’s cleanup protocol is “unknown and
apparently totally arbitrary” and may have been misapplied to her case. In
addition, this argument was not presented to the district court. The occur-
rence of negotiations to determine what items would be disposed of, and
Bissell’s testimony that he thought the case would be disposed of earlier
than it was, do not demonstrate that DEQ’s procedures were arbitrary or
cast doubt on the costs Bissell incurred.
UNITED STATES v. BROCK-DAVIS 13391
[7] Courts have regularly awarded restitution for cleanup
and remediation costs as they were incurred, and even, in De
La Fuente and Quillen, in cases involving a suspected chemi-
cal that turned out to be harmless. See, e.g., United States v.
Phillips, 367 F.3d 846, 850 (9th Cir. 2004) (environmental
investigation and cleanup costs) (Clean Water Act); De La
Fuente, 353 F.3d at 768-74; Quillen, 335 F.3d at 220-26;
United States v. Sablan, 92 F.3d 865, 867, 870-71 (9th Cir.
1996) (restoring bank’s computer files to their condition
before tampering); United States v. Koenig, 952 F.2d 267, 275
(9th Cir. 1991) (“expenses incurred in connection with the
bank’s reprogramming of [ ] stolen ATM account informa-
tion”); United States v. Kenney, 789 F.2d 783, 784 (9th Cir.
1986) (technician’s fee for removing film from surveillance
camera). Moreover, we reasoned in De La Fuente that “[a]
cleanup and decontamination effort conducted by local emer-
gency response agencies . . . was a necessary and foreseeable
result of [the defendant’s] offense conduct” and that “[n]o
independent intervening cause [could] be blamed for the
[agencies’] losses.” De La Fuente, 353 F.3d at 773 (emphasis
added); see also Quillen, 335 F.3d at 225-26.
[8] To this end, Brock-Davis assumed the risk that DEQ
would impose extensive costs and requirements for cleanup.
As we have reasoned (in a fraud case), “[t]hough the extent
of [the defrauded company’s] loss may have been affected by
outside forces, [the defendant]’s conduct — and his alone —
directly resulted in the loss.” Gordon, 393 F.3d at 1055; see
United States v. Rhodes, 330 F.3d 949, 953 (7th Cir. 2003).
The same reasoning is applicable here. To take an example,
in Rice, 38 F.3d 1536, we affirmed a restitution order when
the victim of a fraudulent products scheme impounded its
entire inventory of products from the defendant’s source, even
though it was not proven that the entire inventory had been
contaminated. Id. at 1540-41. In so doing, we explicitly
rejected a claim that the victim company had disrupted the
chain of causation on the basis that its warehouse was poorly
organized because “whether or not [the victim] might have
13392 UNITED STATES v. BROCK-DAVIS
been able to mitigate its damages . . . affords the criminal per-
petrator no excuse. A crime victim is not required to mitigate
damages.” Id. at 1542 (citation omitted). Analogously,
because Bissell had to undergo the expenditure he did to
remediate the motel room at DEQ’s request in order to con-
tinue to use the room as a result of Brock-Davis’ criminal
conduct, the loss was properly placed on Brock-Davis.
Moreover, this case is distinguishable from the Seventh
Circuit’s decision in Menza, 137 F.3d 533, upon which
Brock-Davis relies, because the government is not seeking
reimbursement simply for routine costs. Compare id. at 539.
The losses here were properly treated as a direct result of
Brock-Davis’ offense conduct, and not a government deci-
sion. See Hackett, 311 F.3d at 993 (“Although there are multi-
ple links in this causal chain, the district court did not err by
finding that [the defendant’s] conduct was directly related to
the cause of the fire.”). Because “ ‘[a] restitution order is
authorized if the defendant created the circumstances under
which the harm or loss occurred,’ ” Meksian, 170 F.3d at
1263 (quoting United States v. Spinney, 795 F.2d 1410, 1417
(9th Cir. 1986)), restitution was properly ordered. See also
United States v. Keith, 754 F.2d 1388, 1390, 1393 (9th Cir.
1985) (awarding restitution to assault victim for lost wages
after she quit her job because any possible intervening case
was “directly related to the assault”).6
6
By way of contrast, this case is distinguishable from the circumstances
warranting the reversal of restitution orders in Meksian and United States
v. Tyler, 767 F.2d 1350 (9th Cir. 1985), where the intervening cause was
not directly related to the offense of conviction. The intervening cause in
Meksian was an inaccurate environmental report about property used as
collateral for a loan, where the defendant was prosecuted for separate false
statements on the loan which did not affect the value of the collateral.
Meksian, 170 F.3d at 1261-63. In Tyler, the defendant was convicted of
conspiracy to commit timber theft, and was ordered to pay restitution for
the amount of loss in the timber’s value from the time of the cutting to the
time of the government’s sale of the timber (after it had been retained for
evidentiary purposes). Tyler, 767 F.2d at 1351. We found that this restitu-
UNITED STATES v. BROCK-DAVIS 13393
D. Factual Discrepancies
Fourth, Brock-Davis contends that factual discrepancies
undermine and require reduction of the restitution amount.
We disagree.7
[9] We reject her challenge based on purported discrepan-
cies in Bissell’s statement of the amounts spent to replace car-
peting and other items. Bissell made an overall statement of
his final request’s accuracy that Brock-Davis fails to discredit.
There was no clear error, and no plain error, in the district
court’s finding.
Brock-Davis also argues that there are discrepancies
between the items that were disposed of and those for which
she was charged. Although the government fails to provide
any substantive response to these arguments, we conclude that
the district court did not clearly err in accepting Bissell’s testi-
mony that the victim statement accurately reflected what
items were required to be disposed of, notwithstanding the
cited inconsistencies reflected in various other documents.
There was no impeachment of Bissell’s credibility or any evi-
dence that specific furnishings were not necessary replace-
ments or that Bissell could have avoided these disposal or
replacement costs. Bissell was involved in all aspects of the
methamphetamine cleanup, and he attempted to limit his
costs. Accordingly, these arguments fail. See Rice, 38 F.3d at
tion award was reversible because “[t]he timber was restored to the gov-
ernment on the day of the theft. Any reduction in its value stems from the
government’s decision to hold the timber during a period of declining
prices, not from Tyler’s criminal acts.” Id. at 1352. Here, although DEQ
may have demanded more remediation than Brock-Davis would have pre-
ferred, there was no intervening cause that removes her responsibility for
the damage.
7
Several of Brock-Davis’ arguments are reviewed for plain error
because she did not raise them below.
13394 UNITED STATES v. BROCK-DAVIS
1542 (finding that it was not clear error for the district court
to credit the victim’s explanation of the loss).
[10] Thus, although “the government must provide the dis-
trict court with more than just . . . general invoices . . . osten-
sibly identifying the amount of their losses,” Menza, 137 F.3d
at 539, the government’s burden of proof has been met. In
making this assessment, we note that in Menza, which Brock-
Davis cites, the bills that had been submitted appeared dupli-
cative and showed “clear inconsistencies.” Id. at 529, 538.
Because Bissell’s loss statement did not contain such pro-
nounced red flags, Brock-Davis’ case is distinguishable from
Menza and her arguments are unpersuasive. See id. at 540.
E. Lost Income
[11] Fifth, we agree with Brock-Davis that the district court
erred by ordering restitution for consequential damages for
lost income due to Bissell’s inability to rent Room 107 during
the cleanup. As it did in the sentencing hearing for Brock-
Davis’ co-defendant, the government now concedes that the
$4,000 in lost income should not have been included in the
restitution order. For one thing, the motel did not lose any
income because it always had other rooms available to rent
during the slow winter season. Even if the motel had lost
income, moreover, lost revenue is a consequential damage
and is excluded from restitution in cases such as this. See 18
U.S.C. § 3663A(b)(1); Stoddard, 150 F.3d at 1147; Sablan,
92 F.3d at 870. Accordingly, the portion of the restitution
order awarding $4,000 in recovery for lost income is vacated.
See also Hicks, 997 F.2d at 601 n.7 (adopting concession).
F. Asbestos
Finally, we are persuaded by Brock-Davis’ contention that
she is not liable for the asbestos testing that WTR conducted
and the associated ceiling tile replacement cost, to the extent
that these charges were not directly related to the offense con-
UNITED STATES v. BROCK-DAVIS 13395
duct. See Gamma Tech, 265 F.3d at 928; Meksian, 170 F.3d
at 1263.
[12] As Brock-Davis points out, the government’s state-
ments before the district court strongly suggest that it recog-
nized that she did not directly cause the asbestos testing that
was included in the DEQ-demanded remediation. The govern-
ment explicitly stated during its examination of Bissell that
“[n]o one is contending [that the asbestos testing that was
done] has a direct relationship to a methamphetamine cooking
operation.” In addition, Gietzen testified that asbestos testing
was “not related to any potential meth lab that could or could
not have been in that room,” and he agreed that testing for
asbestos did not “have anything to do with methamphet-
amine.” Because WTR presented an unsegregated lump-sum
bill to the court, however, the restitution ordered included
asbestos testing costs and the cost for ceiling tile replacement
from this testing.
[13] Contrary to the government’s contention on appeal,
there was no explanation below — whether from Bissell or
otherwise — that linked the asbestos testing to the metham-
phetamine cleanup. The testimony to which the government
refers indicated simply that DEQ wanted asbestos testing
done in addition to methamphetamine testing. The govern-
ment now contends that the asbestos testing was necessary in
case items containing asbestos had to be removed due to
methamphetamine contamination, which would have required
a special contractor to handle the asbestos and, on that basis,
was directly related to the methamphetamine testing and
cleanup plan. Although evidence to this effect might justify
the inclusion of asbestos-testing costs in the restitution order,
no such showing has been made. In addition, the govern-
ment’s assertion is strongly belied by the WTR reports’ state-
ment that the asbestos testing was “in addition to” the
methamphetamine concern and by the fact that a storage area
and four rooms other than Room 107 were tested for asbestos.
13396 UNITED STATES v. BROCK-DAVIS
[14] Thus, we conclude that the district court clearly erred
in awarding full recovery on WTR’s unsegregated bill. We
vacate the payment of restitution as it relates to the tested ceil-
ing tiles and WTR, and remand to the district court for addi-
tional consideration of this issue. On remand, a determination
should be made whether the asbestos testing and ceiling tile
replacement can be linked to the methamphetamine contami-
nation and, even if they can properly be linked, a breakdown
must be done as to how much of the associated costs can be
attributed specifically to Room 107. See, e.g., Hicks, 997 F.2d
at 602 (ordering the district court “to recalculate the amount
of the restitution ordered”).
IV. CONCLUSION
For the foregoing reasons and as set forth herein, the order
of restitution is
AFFIRMED in part, VACATED in part, and
REMANDED.