United States v. Cardozo

United States Court of Appeals
For the First Circuit
No. 21-1779
UNITED STATES OF AMERICA,
Appellee,
v.
BYRON ALLAN CARDOZO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Allison D. Burroughs, U.S. District Judge]
Before
Barron, Chief Judge,
Selya and Thompson, Circuit Judges.
Leslie Feldman-Rumpler for appellant.
Alexandra W. Amrhein, Assistant United States Attorney, with
whom Rachael S. Rollins, United States Attorney, was on brief, for
appellee.
May 26, 2023
SELYA, Circuit Judge. Cyberstalking is an ugly crime,
and Congress has made it clear that an order for restitution is
one way of bringing offenders to account. This appeal concerns
the implementation of that restitution remedy. In the underlying
case, defendant-appellant Byron Allan Cardozo was convicted of
both cyberstalking and making interstate threats. See 18 U.S.C.
§§ 2261A(2)(B), 875(c). Earlier, we affirmed his sentence but
left open the issue of restitution. See United States v. Cardozo,
Nos. 20-1318, 20-1398, 2021 WL 3771818, at *2 (1st Cir. Aug. 25,
2021) (per curiam). The district court then entered an amended
judgment, ordering the defendant to pay restitution to the victim
in the sum of $72,112.62.
In this court, the defendant contests the district
court's restitution order. See United States v. Cardozo, No. 18-
10251, Dkt. 88 (D. Mass. Sept. 2, 2020). After careful
consideration of a series of dystopian events and a constellation
of expenses incurred in consequence of those events, we modify the
restitution order and affirm the order as modified.
I
We briefly rehearse the relevant facts and travel of the
case. Because this appeal trails in the wake of a guilty plea,
"we glean the relevant facts from the change-of-plea colloquy, the
unchallenged portions of the presentence investigation report (PSI
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Report), and the record of the disposition hearing." United States
v. Vargas, 560 F.3d 45, 47 (1st Cir. 2009).
The defendant had a sexual encounter with Jane Doe in
2001, when he was seventeen years old and she was only thirteen.
At the time, the defendant and Doe attended the same school in
Florida.
Over the course of the next fifteen years, the defendant
periodically tried to contact Doe. In 2016, Doe responded to a
Facebook message from the defendant. She explained that she felt
traumatized by the 2001 episode and wanted to publish an essay
about it. The defendant gave Doe permission to publish such an
essay.
Doe was true to her word: she wrote the essay and
arranged for its publication in an online magazine in December of
2016. In the essay, she used pseudonyms for everyone but herself
and described the sexual encounter as coercive and traumatic.
For the next twenty months, the defendant (anonymously,
for the most part) used various online platforms to harass and
threaten Doe. He contacted Doe on hundreds of occasions, sometimes
through Facebook or Twitter and sometimes by posting comments on
her personal website. When Doe blocked him, he created false
accounts and continued to hassle her. The content of the messages
careened between claims that Doe had fabricated the coercive nature
of the encounter, graphic descriptions of real and imagined sexual
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exploits with her, professions of love, suggestions that he would
commit suicide, and express and implied threats of violent
retribution.
In March of 2017, Doe retained counsel in Florida (where
the defendant resided). Her Florida lawyers communicated with the
defendant's parole officer and sent the defendant a
cease-and-desist letter. Despite these efforts, the harassment
continued. That spring, Doe's lawyers sought and received a
temporary protection order from a Florida state court. Later on,
that court issued an injunction, barring the defendant from
communicating with Doe. The injunction proved to be of little
help: after it issued, the defendant's conduct became even more
menacing.
In 2017, Doe was living in New York. She retained New
York counsel in November of that year. Her family — concerned for
her safety — hired a Florida-based private investigator in June of
2018. The investigator was tasked with monitoring the whereabouts
of the defendant (who lived in Florida) to ensure that he did not
attempt to contact Doe in person. Unbeknownst to Doe, the
investigator tried to speak with the defendant and a physical
altercation ensued (in which the defendant was injured).
The defendant's harassment made Doe fear for her safety
and the safety of her family, friends, and colleagues. These fears
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adversely affected her mental health and impaired her ability to
work, sleep, and live normally.
By 2018, Doe had moved to Massachusetts and the
authorities were digging into her complaints about the defendant's
harassment.1 After the facts were gathered, a federal grand jury
sitting in the District of Massachusetts returned an indictment
charging the defendant with one count of cyberstalking and one
count of making interstate threats. The defendant moved to dismiss
the indictment on First Amendment grounds. The district court
denied the motion. See United States v. Cardozo, No. 18-10251,
2019 WL 2603096, at *5 (D. Mass. June 24, 2019).
On August 20, 2019, the defendant entered a straight
guilty plea to both counts of the indictment. The PSI Report did
not address restitution in any meaningful detail; it merely stated
that restitution "shall be ordered" and that "[n]o restitution
claims have been made to date."
The district court convened the disposition hearing on
December 18, 2019. Doe was in attendance, accompanied by her New
York counsel, and she delivered a lengthy victim-impact statement.
The court sentenced the defendant to a seventy-month term of
immurement, to be followed by a three-year term of supervised
1 Doe moved from New York to Massachusetts at some
indeterminate point during the offense conduct. It is not clear
from the record exactly when the move took place.
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release. At the hearing, the government informed the district
court that it intended to seek restitution but that it was still
"working on the backup" needed to crystalize the amount. The court
accepted that representation, noting that the applicable statute
"allows for restitution to be submitted after the sentencing."
On January 14, 2020, the government filed a restitution
request for $72,350.12. This request was meant to compensate Doe
for fees that she incurred "in the course of the federal
investigation and prosecution in Boston as well as the
investigation, state court order of protection, and related
activities in Florida." In support, the government submitted
billing statements from the Florida and New York lawyers, which
included expenses for "evidence review, background review of [the
defendant], obtaining state court injunctions, cease and desist
letters, orders of protection and other relief in Florida, advocacy
with law enforcement, . . . meetings with [Doe] and prosecutors,
coordination regarding arrest of offender, support with victim
impact statement, and two federal court dates" for the disposition
hearing after defense counsel missed the first hearing due to a
scheduling error.
The defendant objected to the proposed restitution
amount, asserting that it was based on insufficient evidence; that
the defendant's conduct did not cause Doe to incur the described
expenses because hiring lawyers was elective; that the work
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performed was unnecessary, given the government's investigation;
and that the expenses were unreasonable. The district court
overruled the defendant's objections and — on September 2, 2020 —
the court ordered the defendant to pay restitution in the amount
of $72,112.62 (subtracting only $237.50 from the government's
requested amount).2 See Cardozo, No. 18-10251, Dkt. 88, at 4-5.
The defendant appealed. We affirmed his sentence but
held that the restitution order (which had not yet ripened into a
judgment) was not properly before us. See Cardozo, 2021 WL
3771818, at *2. Following a remand, the district court entered an
amended judgment that encompassed the restitution order. This
timely appeal ensued.
II
On appeal, the defendant revives certain arguments
previously made and also introduces some new ones. Before arraying
those arguments, we frame the governing law and the applicable
standards of review.
2 The subtracted sum represented a charge made by Doe's New
York lawyers for drafting a letter to defense counsel requesting
reimbursement to Doe due to defense counsel's failure to appear at
the first scheduled disposition hearing. The court explained that
the "rescheduling and any expenses associated with the victim
and/or her attorney's duplicative appearance in court was clearly
not a loss caused by [d]efendant, but instead was caused by counsel
for [d]efendant's own scheduling error." Cardozo, No. 18-10251,
Dkt. 88, at 4.
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Restitution is meant to "mak[e] a victim whole by
restoring the monetary equivalent of losses suffered in
consequence of the defendant's criminal activity." United States
v. Salas-Fernández, 620 F.3d 45, 48 (1st Cir. 2010). Through 18
U.S.C. § 2264, Congress has directed district courts to order
restitution in cyberstalking cases. Section 2264 requires
restitution for the "full amount of the victim's losses." 18
U.S.C. § 2264(b)(1); see Lagos v. United States, 138 S. Ct. 1684,
1689-90 (2018). This anodyne includes "any costs incurred by the
victim for . . . attorneys' fees, plus any costs incurred in
obtaining a civil protection order; . . . [and] any other losses
suffered by the victim as a proximate result of the offense." 18
U.S.C. § 2264(b)(3).
A restitution order issued pursuant to section 2264 must
comport with the procedural requirements of the Mandatory Victims
Restitution Act (MVRA). See id. §§ 2264(b)(2), 3664. It is the
government's burden to establish the amount of the victim's losses
by preponderant evidence. See id. § 3664(e). That burden is not
a heavy one: "[a]s long as the court's order reasonably responds
to some reliable evidence, no more is exigible." United States v.
Naphaeng, 906 F.3d 173, 180 (1st Cir. 2018) (alteration in
original) (quoting United States v. Sánchez-Maldonado, 737 F.3d
826, 828 (1st Cir. 2013)).
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When a party challenges a restitution order, preserved
claims of error are reviewed for abuse of discretion. See United
States v. Ochoa, 58 F.4th 556, 560 (1st Cir. 2023). Within that
rubric, we "examin[e] the court's subsidiary factual findings for
clear error and its answers to abstract legal questions de novo."
Id. at 560-61 (alteration in original) (quoting United States v.
Chiaradio, 684 F.3d 265, 283 (1st Cir. 2012)).
Our standard of review differs, however, when a party
raises a claim of error that was not advanced below. When that
happens, appellate review is only for plain error. See United
States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001). "Under that
demanding standard, the appellant must show '(1) that an error
occurred (2) which was clear or obvious and which not only (3)
affected the defendant's substantial rights, but also (4)
seriously impaired the fairness, integrity, or public reputation
of judicial proceedings.'" United States v. Franklin, 51 F.4th
391, 400 (1st Cir. 2022) (quoting Duarte, 246 F.3d at 60). "The
party asserting plain error bears the burden of persuasion" as to
all four elements. United States v. Pabon, 819 F.3d 26, 33 (1st
Cir. 2016).
With this preface in place, we turn to the defendant's
asseverational array.
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A
The defendant's first claim of error posits that the
district court failed to comply with the procedural requirements
of the MVRA. Because the defendant did not advance this claim
below, our review is for plain error. See Duarte, 246 F.3d at 60.
The MVRA imposes a set of procedural requirements on the
issuance of restitution orders under section 2264. See 18 U.S.C.
§§ 2264(b)(2), 3664. As relevant here, the district court "shall
order the probation officer to obtain and include in [the]
presentence report, or in a separate report . . . information
sufficient for the court to exercise its discretion in fashioning
a restitution order" and, "to the extent practicable, a complete
accounting of the losses" to the victim. Id. § 3664(a); see Fed.
R. Crim. P. 32(c)(1)(B) (stating that, when restitution is allowed,
"[t]he probation officer must conduct an investigation and submit
a report that contains sufficient information for the court to
order restitution").
In this case, the defendant assigns error to the district
court's failure to order the probation office to prepare a
restitution report. He broadens this assignment of error by noting
that the PSI Report did not contain any substantive information
about restitution and lacked "a complete accounting of the losses."
Even if we assume, for argument's sake, that this
challenge identifies clear or obvious error — the absence of any
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concrete restitution information either in the PSI Report or in a
supplement to that report — the challenge stumbles at the third
step of the plain error construct. An error affects the
defendant's substantial rights only if there is "a reasonable
probability that, but for [the error claimed], the result of the
proceeding would have been different." United States v. Burghardt,
939 F.3d 397, 403 (1st Cir. 2019) (alteration in original) (quoting
United States v. Turbides-Leonardo, 468 F.3d 34, 39 (1st Cir.
2006)). Here, the government supplied the district court with the
detailed restitution accounting that the probation office omitted.
The defendant has failed to explain how the result would have been
different had the district court insisted that the probation office
prepare a restitution report. So, too, the defendant has failed
to explain how the result would have been different had the PSI
Report, rather than the government's proffer, contained more
fulsome information about the claimed losses. And to cinch the
matter, the record reflects that the district court placed the
devoir of persuasion squarely on the government and concluded that
the government had carried its burden based on the information
actually presented. Given this tableau, we have no reason to think
that either the information or the outcome would have changed had
the probation office followed the literal requirements of the
statute.
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To say more would be to paint the lily. We hold that
the defendant has failed to show that he was prejudiced by the
claimed procedural error. Thus, plain error is plainly absent.
B
This brings us to the defendant's suggestion that the
restitution award was not supported by reliable evidence. He says
that the evidence — billing statements from the victim's Florida
and New York attorneys — was not detailed enough, was not
sufficiently corroborated, and was untrustworthy because it was
unsworn.
In the court below, the defendant asserted that the
billing statements were inadequate to support a restitution award
because they were redacted and the redactions made it difficult to
assess whether the charges were either reasonable or causally
related to the offense conduct. But he has abandoned these
assertions on appeal, and he made no argument below as to the
reliability of the billing statements based on lack of detail,
lack of corroboration, or lack of attestation. Accordingly, our
review of the defendant's newly minted reliability claim is for
plain error. See Duarte, 246 F.3d at 60.
To prevail under the plain error standard, the defendant
must identify a "clear or obvious" error. Id. Such an error is
an error that is "'indisputable' in light of controlling law."
United States v. Rabb, 5 F.4th 95, 101 (1st Cir. 2021) (quoting
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United States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014)). In this
instance, we discern no clear error.
If a loss amount is disputed, the government must
establish the loss amount by a preponderance of the evidence. See
18 U.S.C. § 3664(e). In this regard, the district court "may
consider all relevant information that has 'sufficient indicia of
reliability to support its probable accuracy,'" including
undisputed portions of the PSI Report. United States v.
Gallardo-Ortiz, 666 F.3d 808, 811 (1st Cir. 2012) (quoting United
States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir. 2010)); see
Sánchez-Maldonado, 737 F.3d at 828. The court "has wide discretion
to decide whether particular evidence is sufficiently reliable to
be used at sentencing." Gallardo-Ortiz, 666 F.3d at 811 (quoting
Cintrón-Echautegui, 604 F.3d at 6).
Here, the government submitted detailed billing
statements from Doe's Florida and New York counsel. For each
charge, the statements list the date, the hourly rate, the time
spent, and a description of the work performed. It was within the
district court's discretion to accept these precise and
well-explained billing statements as sufficiently detailed and
reliable evidence of the enumerated losses — especially since those
billing statements were coupled with the undisputed narrative in
the PSI Report, which related in some detail Doe's serial attempts
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to thwart the defendant's pattern of harassment and threats. See
Naphaeng, 906 F.3d at 180.
This result is unaffected by the fact that the billing
statements are unsworn. We are aware of no authority that requires
a billing statement, prepared in the ordinary course of
professional practice, to be sworn before it can be deemed reliable
for purposes of a restitution order. Although a sworn statement
attesting to business records may be reliable and, perhaps,
preferable evidence, see, e.g., United States v. Amato, 540 F.3d
153, 162-63 (2d Cir. 2008), abrogated on other grounds by Lagos,
138 S. Ct. 1684; United States v. Rochester, 898 F.2d 971, 982
(5th Cir. 1990), no case holds that verification under oath is a
sine qua non for a finding of reliability.
The cases that the defendant cites are not on point.
Each of them involved a restitution order based on skeletal,
irregular, or conclusory evidence. See, e.g., United States v.
Villalobos, 879 F.3d 169, 172 (5th Cir. 2018) (vacating order when
court imposed restitution after finding no loss); United States v.
Tsosie, 639 F.3d 1213, 1222-23 (9th Cir. 2011) (vacating order
when court provided no reasoning and only evidence was irregular
spreadsheet); United States v. Waknine, 543 F.3d 546, 557-58 (9th
Cir. 2008) (vacating order when supporting affidavits were "too
summary and too conclusory to be sufficiently reliable"); United
States v. Jones, 475 F.3d 701, 705-07 (5th Cir. 2007) (vacating
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order when court imposed restitution based solely on government
assertions). The evidence in those cases is not at all equivalent
to the detailed records that the government furnished here. Apples
must be compared to apples, and the defendant's proffered cases do
not satisfy this standard. The short of it, then, is that the
defendant has not shown that it was a clear or obvious error for
the district court to rely on the billing statements to support a
restitution order.
C
Taking a different tack, the defendant points out that
loss amounts incorporated in a restitution order must be causally
related to the offense conduct. See United States v. Yung, 37
F.4th 70, 83 (3d Cir. 2022) (citing Paroline v. United States, 572
U.S. 434, 449 (2014)). Building on this foundation, he claims
that such a causal nexus is missing here.
We have not yet had occasion to address the causation
requirement under section 2264. But the statute itself defines
the "full amount of the victim's losses" as comprising "losses
suffered by the victim as a proximate result of the offense." 18
U.S.C. § 2264(b)(3). It follows, therefore, that any loss awarded
in a restitution order issued under section 2264 must have been
proximately caused by the offense conduct. See Yung, 37 F.4th at
82-83; United States v. Hayes, 135 F.3d 133, 137-38 (2d Cir. 1998);
see also United States v. Thunderhawk, 860 F.3d 633, 636 (8th Cir.
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2017) (interpreting same language in 18 U.S.C. § 2248(b)(3)). That
conclusion accords with our case law interpreting similar language
in other restitution statutes. See, e.g., United States v.
Kearney, 672 F.3d 81, 95-96 (1st Cir. 2012) (collecting cases
interpreting similar language in 18 U.S.C. § 2259(c)(2)).
In practical terms, the inquiry into proximate cause
asks whether the loss "'has a sufficiently close connection to the
conduct' at issue." United States v. Chin, 965 F.3d 41, 60 (1st
Cir. 2020) (quoting Robers v. United States, 572 U.S. 639, 645
(2014)). Put another way, the question is whether the loss is
"within the reasonably foreseeable risks of harm created by the
defendant's conduct." Kearney, 672 F.3d at 96 (alteration omitted)
(quoting Staelens v. Dobert, 318 F.3d 77, 79 (1st Cir. 2003)).
The defendant makes two independent causation arguments, and we
address them separately.
1
The defendant first contends that his conduct did not
proximately cause Doe to incur charges by New York counsel related
to (a) the altercation between the defendant and the private
investigator hired by Doe's family, (b) a charge for a quarter
hour spent reviewing the defendant's arrest records "to give [Doe]
[a] full list for her publisher's [attorneys] (re her new book),"
and (c) charges for time spent, in the defendant's words, "serving
as an all-purpose conduit for communications between" Doe and the
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United States Attorney's Office (USAO). The defendant did not
raise any of these claims below and, thus, our review is for plain
error. See Duarte, 246 F.3d at 60.
With respect to the first category of charges, the
defendant submits that charges related to the private
investigator's altercation with him were not proximately caused by
his offense conduct and that he cannot, therefore, be required to
pay restitution for any time the attorneys spent addressing them.3
Curiously, however, the defendant has not directed us to any
particular charges in this respect. Based on our independent
examination of the record, the only charges that appear to relate
to the altercation are telephone calls (which together add up to
less than one hour). In those calls, the investigator informed
counsel of the incident and counsel relayed that information to
Doe and the USAO. This jibes with the singular reference to the
subject related in the PSI Report, which tells us only that the
investigator and a colleague "attempted to speak to [the
defendant], and a physical altercation ensued." Against that
sketchy backdrop, and without any helpful guidance on which
specific charges should be excluded, we see no justification for
3 The private investigator's fees were apparently paid by
Doe's family and do not account for any part of the restitution
award. Consequently, those fees are not at issue here.
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concluding that the district court committed a clear or obvious
error.
We need not linger long over the charges for time spent
reviewing the defendant's arrest record for Doe's publisher's
attorneys and communicating with the USAO. Doe is an author whose
published essay was the catalyst for the offense conduct. It was
reasonably foreseeable — or at least it is not clear or obvious
that it was not reasonably foreseeable — that Doe's attorneys would
need to communicate with her publishers about the defendant. As
for communications with the USAO, it was readily foreseeable that
Doe's counsel, whom she retained before any charges were instituted
against the defendant, would interface with the USAO on her behalf
once charges were brought.
2
The defendant's remaining causation argument relates to
the two trips that Doe's New York counsel made to Boston in
connection with sentencing (after the disposition hearing was
aborted on the first trip due to a scheduling error on the part of
defense counsel). The defendant did not raise this claim below
and, thus, our review is for plain error. See Duarte, 246 F.3d at
60.
Refined to bare essence, the defendant contends that it
was not reasonably foreseeable that New York counsel would make
two trips to Boston for sentencing. Reasoning from this premise,
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he objects to the inclusion of charges from the second trip on the
ground that — if both trips related solely to sentencing — the
charges from the second trip must have been duplicative of those
from the first.
The defendant buttresses this contention by noting a
perceived inconsistency in the district court's order. The court
rejected a $237.50 charge in New York counsel's billing statements
for drafting a letter to defense counsel "requesting reimbursement
to [Doe] due to [defense counsel's] failure to appear" at the first
scheduled disposition hearing. See supra note 2. The court stated
that "rescheduling and any expenses associated with the victim
and/or her attorney's duplicative appearance in court was clearly
not a loss caused by [d]efendant, but instead was caused by counsel
for [d]efendant's own scheduling error." Cardozo, No. 18-10251,
Dkt. 88, at 4. The defendant posits that the district court's
order is internally inconsistent, given that (in his view) the
court's stated reason for denying the $237.50 charge applies
equally to all other charges associated with the second trip to
Boston, inasmuch as the trip itself was duplicative.
The defendant is painting with too broad a brush. His
argument assumes that all charges from both trips related solely
to sentencing. That assumption, however, is neither clear nor
obvious from the record. There are charges from both trips that
plausibly relate to matters apart from sentencing (for instance,
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charges for time spent meeting with Doe). It is, therefore,
neither clear nor obvious that all the charges are duplicative.
The defendant has not attempted to argue, either here or
below, that the specific charges from the second trip were all
sentencing-related. Nor has he made any effort to distinguish
between charges that are duplicative and charges that are not.
Relatedly, he has made no effort to explain why the charges that
are seemingly not related to sentencing were otherwise
unforeseeable. Instead, he rests his claim of error squarely on
the unproven theory that the second trip itself is duplicative.
Given the tenor of the defendant's argument, we conclude
that he has failed to demonstrate — clearly and obviously — that
the charges from the second trip should have been excluded as
duplicative. Consequently, we discern no plain error in the
district court's inclusion of those charges in its restitution
order.
D
The defendant's fourth set of challenges concerns the
reasonableness of the restitution award. In the restitution
context, reasonableness is a protean concept. One aspect of the
question of reasonableness is typically subsumed by the question
of causation, that is, whether a loss was reasonably foreseeable.
See Kearney, 672 F.3d at 100; see also United States v. Vaknin,
112 F.3d 579, 590 (1st Cir. 1997) (explaining, in restitution
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context, that "[t]he watchword is reasonableness" when assessing
"the causal nexus between the conduct and the loss"), abrogated on
other grounds by United States v. Anonymous Defendant, 629 F.3d
68, 73 (1st Cir. 2010). Another aspect of the reasonableness
inquiry, though, is born of the notion that the victim should not
be permitted to recover for excessive losses. See, e.g., In re
Akebia Therapeutics, Inc., 981 F.3d 32, 38-39 (1st Cir. 2020). We
address that aspect here.
1
As a start, the defendant advances a general claim that
the attorneys' fees included in the restitution award are excessive
and, thus, unreasonable. Because this claim was raised below, our
review is for abuse of discretion. See Ochoa, 58 F.4th at 560.
The defendant relies primarily on United States v.
Kukstis, No. 18-10241, Dkt. 50 (D. Mass. Dec. 19, 2018), an
unpublished decision in a cyberstalking case in which the district
court awarded attorneys' fees as part of a restitution order. The
defendant contends that a comparison between the order in this
case and the order in Kukstis demonstrates that the attorneys'
fees awarded by the court below are unreasonable.
This contention is unconvincing. No two cases are likely
to be identical, and the defendant sets up a false dichotomy: a
direct comparison of the average monthly attorneys' fees in Kukstis
and in this case in order to determine what is reasonable. But
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one size does not fit all, and the reasonableness of the fees
depends on the idiosyncratic circumstances of each case and the
actual work performed. There is no plausible basis for assuming
that there is only one reasonable amount of average monthly
attorneys' fees across the universe of cyberstalking cases. Thus,
comparing average monthly fees in two unrelated cyberstalking
cases tells us nothing about whether those fees are reasonable.
The court below determined that Doe's attorneys' fees
were reasonable because she had "received significant legal
assistance over the course of two years in connection with
[d]efendant's ongoing harassment and threats of physical
violence." Cardozo, No. 18-10251, Dkt. 88, at 5. The defendant
has not succeeded in throwing shade on the factual underpinnings
of this determination. Under these circumstances, we see nothing
to indicate that the district court abused its wide discretion in
concluding that the fees incurred by Doe were reasonable.
2
Next, the defendant claims that it was unreasonable for
Doe to retain New York counsel and for two attorneys to accompany
Doe to the district court hearings in Boston. Because the
defendant raised these claims for the first time on appeal, we
review them for plain error. See Duarte, 246 F.3d at 60.
We start with the defendant's claim that it was
unreasonable for Doe to retain New York counsel even though the
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criminal proceedings were prosecuted in Boston. Doing so, he
complains, led to unnecessary travel costs.
This plaint does not move the needle. The district court
implicitly concluded that it was reasonable for Doe, who lived in
New York,4 to engage New York counsel. This conclusion is
buttressed by the fact that Doe retained her New York counsel
before criminal proceedings were instituted in Boston. All things
considered, we see no clear or obvious error in the district
court's conclusions.
Given our holding that it was reasonable for Doe to
engage New York counsel, we think it follows that travel to Boston,
when necessary, was part and parcel of that engagement. The
defendant has offered no evidence to show that either the time
allotted for travel or the costs incident thereto were out of line.
We add, moreover, that none of the cases that the
defendant cites undermines the district court's ruling that it was
reasonable for Doe to recover for travel by her New York counsel.
Those cases relate to when recovery for attorneys' fees should be
capped at the average local hourly rate rather than a higher
non-local rate. See Arbor Hill Concerned Citizens Neighborhood
Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d
4As we have said, see supra note 1, it is not clear from the
record when Doe moved to Massachusetts. But it seems likely that
she retained her New York counsel at a time when she lived in New
York.
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182, 183-84, 191 (2d Cir. 2008) (concluding, in Voting Rights Act
context, that recovery for fees for out-of-district attorneys who
charged higher hourly rates than local counsel would be allowed so
long as retention of out-of-district attorneys was "reasonable
under the circumstances"); Maceira v. Pagan, 698 F.2d 38, 40 (1st
Cir. 1983) (explaining, in context of Landrum-Griffin Act, that
recovery for fees of out-of-town attorneys who charge higher rates
may be reasonable if those attorneys have special expertise). The
defendant has not offered any comparative evidence of average
hourly rates in Boston and New York. Nor has the defendant offered
any evidence that the attorneys' travel costs were exaggerated or
inappropriate. The district court's recognition of those costs
was, therefore, not clearly or obviously erroneous.
As for the claim that it was plain error to allow
recovery for two attorneys, we likewise discern no clear or obvious
error. In modern litigation, it is not unusual — and certainly
not per se unreasonable — for more than one attorney to participate
in the representation of a client at a particular hearing or in a
particular proceeding. See, e.g., Castañeda-Castillo v. Holder,
723 F.3d 48, 80 (1st Cir. 2013); O'Rourke v. City of Providence,
235 F.3d 713, 737 (1st Cir. 2001).
The lone case that the defendant cites, Copeland v.
Marshall, states that having more than one attorney present at a
proceeding will sometimes render recovery for both attorneys' fees
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duplicative. See 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc).
But it tells us nothing about whether having two attorneys
accompany Doe in this case was duplicative or unreasonable. On
this sparse record, we cannot find clear or obvious error in the
district court's allowance of recovery for two attorneys to
accompany Doe to Boston for proceedings in the criminal case.
3
The defendant also challenges the reasonableness of the
amounts billed by Doe's Florida counsel. This claim surfaced for
the first time on appeal and, thus, our review is for plain error.
See Duarte, 246 F.3d at 60.
When Doe retained her Florida counsel, the defendant
resided in Florida. It was, therefore, reasonable for her to
engage Florida lawyers to seek an order of protection from a
Florida court. See Maceira, 698 F.2d at 40.
The defendant strives to blunt the force of this
reasoning. He says that he resided in Jacksonville and that the
protection-order proceedings took place there, yet Doe selected
counsel who maintained offices in Orlando. The defendant's
argument seems to be, at bottom, that it was unreasonable to hire
counsel who were located in a different part of Florida because
doing so necessarily required extra travel costs. According to
the defendant, it is only reasonable to hire out-of-town lawyers
if they are specialists. Doe's Florida counsel, the defendant
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adds, are clearly not specialists because their charges include
research costs related to obtaining a protection order.
At first blush, this claim seems dubious. The choice of
counsel is an intensely personal choice, and courts should afford
wide latitude to parties with respect to such choices. Cf. United
States v. Panzardi Alvarez, 816 F.2d 813, 816 (1st Cir. 1987)
(explaining that, in criminal context, deference to choice of
counsel guarantees "basic trust between counsel and client, which
is a cornerstone of the adversary system" (quoting Wilson v.
Mintzes, 761 F.2d 275, 279 (6th Cir. 1985))). We are aware of no
rule that requires a plaintiff — on pain of forfeiting eligibility
for restitution — to choose counsel who practices in the same city
or town in which the offending party resides.5
In arguing for a closer geographic fit, the defendant
relies on the decision in Arbor Hill. See 522 F.3d 182. Arbor
Hill is a case under the Voting Rights Act, in which the court
concluded that recovery for higher rates charged by out-of-
district attorneys would be allowed if the decision to retain them
was "reasonable under the circumstances." Id. at 191. But Arbor
Hill is of scant relevance here: the defendant makes no attempt
to extend its reasoning to this case.
5 Of course, choosing counsel from outside the jurisdiction
may present a more nuanced problem. This claim of error, though,
does not require us to delve into those considerations.
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Little more need be said. Doe sought the assistance of
Florida counsel to obtain a protection order from a Florida court
against the defendant (who resided in Florida). The defendant has
offered no evidence to show that the rates prevailing in the
community in which counsel was based (Orlando) were different in
any material respect from the rates prevailing in the community
where the protection order was issued (Jacksonville). Nor has he
provided any authority rendering it "indisputable," Jones, 748
F.3d at 70, that compensation for travel by a non-specialist
attorney is per se unreasonable or (more to the point) unreasonable
under the circumstances at hand. The district court determined
(at least implicitly) that the challenged fees were reasonable,
and the defendant has given us no clear or obvious reason to set
aside that determination.
E
The defendant's last argument concerns a discrepancy of
$4,308.93 between the total amount of charges reflected on the
billing statements and the restitution award. The defendant did
not mention this discrepancy below and, thus, our review is for
plain error. See Duarte, 246 F.3d at 60.
The relevant facts are not in dispute. The government
requested $72,350.12 in restitution. It sought $12,146.06 for
payments made to Florida counsel and $60,204.06 for payments made
to New York counsel. The billing statements that the government
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provided from New York counsel, though, added up to only $55,895.13
— an amount that was $4,308.93 less than what the government
sought. The district court gave the government most of what it
had requested, ordering restitution in the amount of $72,112.62
(subtracting only $237.50). See supra note 2.
The government now concedes that there is a discrepancy
between the total of the charges reflected on the billing
statements and the total restitution awarded. It nonetheless
argues that it was not plain error for the district court to impose
a restitution award that was "slightly higher" than the amount
supported by the evidence. In the government's view, the court
was entitled to rely on the total figure requested, notwithstanding
the lack of backup. We think not.
The disputed amount — $4,308.93 — was not supported by
anything in the record but, rather, was plucked out of thin air.
Each component of a restitution order must correspond to some
reliable evidence; such components cannot rest on an "evidentiary
void." United States v. De Jesús-Torres, 64 F.4th 33, 44 (1st
Cir. 2023). The inclusion of the disputed amount in the
restitution order was, therefore, clear and obvious error: it is
a clear and obvious error for a court to conclude that billing
statements totaling $55,895.13 support an award of $60,204.06.
The logical conclusion, then, is that the total loss amount that
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the government asserted was premised on an incorrect accounting of
the evidence.
Here, moreover, the third and fourth elements of the
plain error construct are also satisfied. With respect to the
third element — prejudice — we decline the government's invitation
to find that such a discrepancy changed the outcome only
"slightly." After all, the glaring error added over $4,000 to the
defendant's restitution obligation and, thus, affected the
defendant's substantial rights.
Finally, the fourth element is satisfied. We think that
the fairness, integrity, and public reputation of judicial
proceedings are impaired when the court imposes thousands of
dollars of restitution based on no evidence at all. Although we
do not "hold a sentencing court to a standard of 'absolute
precision' when fashioning restitution orders," Simon, 12 F.4th at
64 (quoting Naphaeng, 906 F.3d at 179), a restitution award must
"reasonably respond[] to some reliable evidence," id. at 64-65
(quoting Sánchez-Maldonado, 737 F.3d at 828). See De Jesús-Torres,
64 F.4th at 43-44.
In this case, the evidence supported a total of
$68,041.19 in restitution, not the $72,350.12 that the government
sought. Consequently, we direct that the restitution amount be
reduced by subtracting $4,308.93, resulting in a modified award of
$67,803.69.
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III
We need go no further. For the reasons elucidated above,
we direct modification of the restitution order as specified herein
and affirm the modified restitution order.
So Ordered.
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