United States v. George Thunderhawk

United States Court of Appeals
For the Eighth Circuit
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No. 16-1914
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
George Thunderhawk
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of North Dakota - Bismarck
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Submitted: February 7, 2017
Filed: June 21, 2017
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Before LOKEN, COLLOTON, and KELLY, Circuit Judges.
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LOKEN, Circuit Judge.
In 2014, a jury found George Thunderhawk guilty of abusive sexual contact
of V.R.B., a child under 12 years of age, in violation of 18 U.S.C. § 2244(a)(5). At
sentencing, V.R.B.’s mother testified in support of restitution for the victim’s
medical expenses. The Presentence Investigation Report (“PSR”) stated that
restitution is mandatory for Thunderhawk’s offense. The district court1 noted that
restitution was owed and scheduled a hearing sixty days after sentencing to
determine the amount to be awarded. Before that hearing, Thunderhawk appealed,
which stayed proceedings in the district court. In September 2015, we affirmed the
conviction and sentence. United States v. Thunderhawk, 799 F.3d 1203 (8th Cir.
2015). After our mandate issued, the district court sua sponte scheduled the
restitution hearing and subsequently ordered Thunderhawk to pay $14,967.47 in
restitution for V.R.B.’s medical expenses. Thunderhawk appeals the restitution
order, arguing (1) the district court lacked authority to order restitution after failing
to determine the award within ninety days of sentencing, as 18 U.S.C. § 3664(d)(5)
requires; (2) the government failed to prove Thunderhawk’s offense proximately
caused V.R.B.’s loss; and (3) the court erred in failing to order nominal periodic
restitution payments because Thunderhawk is indigent. We affirm.
(1). Restitution is mandatory for the offense of abusive sexual contact in
violation of 18 U.S.C. § 2244(a)(5). See 18 U.S.C. §§ 2248(a), (b)(4). The order of
restitution “shall be issued and enforced in accordance with [18 U.S.C. §] 3664 in
the same manner as an order under [the Mandatory Victim Restitution Act, 18 U.S.C.
§] 3663A.” § 2248(b)(2).
At Thunderhawk’s sentencing, V.R.B.’s mother, Lillian Plenty Chief, testified
that V.R.B. had incurred significant medical expenses as a result of Thunderhawk’s
offense. The district court advised the parties, “obviously there’s some restitution
that’s owed in this case” and scheduled a hearing to determine the amount of
restitution to be held sixty days after the sentencing hearing. Before the restitution
hearing, Thunderhawk appealed. The district court issued an order cancelling the
hearing and staying final resolution of the restitution issue. On February 4, 2016,
1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.
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after our mandate issued, the court sua sponte scheduled the hearing for February 29.
After a status conference, the court canceled the hearing, finding no need for
testimony in addition to that presented at sentencing but providing the parties ten
days to submit additional evidence. The court then entered the restitution order
being appealed.
Thunderhawk argues the district court lost authority to order restitution when
it failed to comply with § 3664(d)(5): “If the victim’s losses are not ascertainable
by the date that is 10 days prior to sentencing, the attorney for the Government or the
probation officer shall so inform the court, and the court shall set a date for the final
determination of the victim’s losses, not to exceed 90 days after sentencing.” In
Dolan v. United States, 560 U.S. 605, 611 (2010), the Supreme Court held that “the
fact that a sentencing court misses the statute’s 90-day deadline, even through its
own fault or that of the Government, does not deprive the court of the power to order
restitution.” The Court stated that this rule applies “at least where, as here, the
sentencing court made clear prior to the deadline’s expiration that it would order
restitution, leaving open (for more than 90 days) only the amount.” Id. at 608.
Seizing on this caveat, Thunderhawk argues that Dolan should not apply because the
district court in this case did not make the initial determination that restitution was
owing until more than ninety days after sentencing.
In Dolan, the plea agreement stated that restitution “may be ordered,” the
presentence report noted that restitution was required, and the district court’s
judgment provided that “restitution is applicable” but was not ordered “at this time”
because the court had no information regarding “payments that may be owed.” Id.
at 608. Here, the district court noted “obviously there’s some restitution that’s owed
in this case” but kept “the subject of restitution open for a period of 60 days” to give
the parties an opportunity to submit memoranda and additional medical evidence on
the amount that should be owed. During those sixty days, Thunderhawk appealed,
depriving the court of jurisdiction to proceed while the appeal was pending and
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arguing unsuccessfully on appeal that “restitution is criminal punishment [that] must
be proved to a jury under Apprendi v. New Jersey, 530 U.S. 466 (2000).”
Thunderhawk, 799 F.3d at 1209. We conclude that the holding in Dolan that the
district court retained power to order restitution clearly applies. See United States
v. Adejumo, 848 F.3d 868, 870 (8th Cir. 2017). Because Thunderhawk was on
notice the court would order restitution and does not argue he was prejudiced by
delay, the district court did not abuse its discretion in awarding restitution. See
United States v. Zaic, 744 F.3d 1040, 1044 (8th Cir. 2014); United States v.
Chalupnik, 514 F.3d 748, 752 (8th Cir. 2008) (standard of review); 18 U.S.C.
§ 2248(b)(4).
(2). Thunderhawk next argues that the government failed to meet its burden
to prove that his offense was the proximate cause of V.R.B.’s medical bills. The
statute provides that the order of restitution “shall direct the defendant to pay . . . the
full amount of the victim’s losses,” determined in accordance with § 3664. 18
U.S.C. § 2248(b)(1), (2). The full amount of the victim’s losses for Thunderhawk’s
sex offense included “medical services relating to physical, psychiatric, or
psychological care.” § 2248(b)(3)(A).2 Section 3664(e) provides that the
government has the burden to demonstrate by a preponderance of the evidence “the
amount of the loss sustained by a victim as a result of the offense.” The offense must
have proximately caused the victim’s losses. See Paroline v. United States, 134 S.
Ct. 1710, 1720-21 (2014); § 2248(b)(3)(F).
Thunderhawk assaulted V.R.B. in 2008. At trial, V.R.B. testified that she did
not report the assault until 2013 because she was scared to tell anyone it happened
and believed the assault was her own fault. At sentencing, V.R.B. submitted a victim
2
When the victim of a sex offense is under 18 years of age, such as V.R.B., the
“victim” for restitution purposes is defined to include her legal guardian, here, Lillian
Plenty Chief. 18 U.S.C. § 2248(c).
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impact statement stating that, since reporting the assault, she has been hospitalized
two times for attempted suicide, two other times for psychological issues, and has
been prescribed medication to help her sleep. V.R.B.’s mother, Lillian Plenty Chief,
testified that V.R.B. has harmed herself by cutting her stomach, cutting her wrists,
and attempting suicide, problems that started after V.R.B. reported the assault.
Plenty Chief provided a victim impact statement detailing V.R.B.’s psychological
issues and diagnoses of post-traumatic stress disorder, severe depression, and high
anxiety. She also submitted a Financial Impact Statement listing a total of
$14,967.14 in “crime related” medical costs for which Plenty Chief was responsible.3
Copies of the medical bills were included with the PSR.
Thunderhawk argued that V.R.B. faced other difficulties that might have
contributed to her hospitalizations and treatment five and six years after the assault.
Her father died from alcohol abuse in 2009. Plenty Chief had problems with alcohol
abuse, and at times was not home for V.R.B., who attended boarding school because
she was having trouble at her local school. Noting that it “carefully reviewed the
entire record, a transcript of the sentencing hearing in which testimony was
submitted regarding restitution, the parties’ filings, and relevant case law,” the
district court found by a preponderance of the evidence that Thunderhawk’s offense
proximately caused V.R.B.’s medical expenses. We review that finding for clear
error. See Chalupnik, 514 F.3d at 752.
On appeal, Thunderhawk argues that, given the lapse of time between his
assault and the medical expenses at issue, the government could not meet its burden
absent medical records or expert testimony from either a psychiatrist, psychologist,
or social worker showing a causal relationship between the crime and the medical
services V.R.B. received. The district court correctly noted that it could rely on
3
The district court ordered restitution to Plenty Chief in the amount of
$14,967.47, consistent with the sentencing transcript, PSR, and filed medical bills.
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victim testimony in calculating provable loss. See United States v. Emmert, 825
F.3d 906, 911 (8th Cir. 2016), cert. denied, 137 S. Ct. 1349 (2017). “[T]he
government may meet its burden of proof by introducing . . . a sworn statement from
the victim outlining the losses sustained as a result of the crime.” United States v.
Adetiloye, 716 F.3d 1030, 1039 (8th Cir. 2013) (citation omitted), cert. denied, 134
S. Ct. 1775 (2014). Here, Thunderhawk did not take advantage of the district court’s
decision to delay a final decision on the amount of restitution to give the parties an
opportunity to submit additional evidence on the question of causation. Absent
contrary evidence from Thunderhawk, Plenty Chief’s testimony under oath,
combined with the other record evidence, was sufficient to meet the government’s
burden. The district court did not clearly err in determining Thunderhawk owed the
full amount of restitution Plenty Chief requested.
(3). Finally, Thunderhawk argues his economic circumstances warranted
nominal restitution payments. Thunderhawk urged the district court to order
nominal payments, arguing his economic circumstances prohibited him from paying
the full restitution award in the foreseeable future. Citing the PSR, he noted that “he
has no assets or liabilities, and he was financially supported by his wife’s $800 per
month social security check.” Thunderhawk asserted that he could not receive social
security benefits while incarcerated and likely would not receive them upon release.
A district court “may not decline to issue an order [of restitution] under this
section because of . . . the economic circumstances of the defendant.” 18 U.S.C.
§ 2248(b)(4)(B); see § 3664(f)(1)(A) (“the court shall order restitution . . . in the full
amount of each victim’s losses . . . without consideration of the economic
circumstances of the defendant”). However, after determining the full amount owed,
the court “shall . . . specify in the restitution order the manner in which, and the
schedule according to which, the restitution is to be paid,” taking into account the
defendant’s financial resources, projected earnings, and financial obligations. 18
U.S.C. § 3664(f)(2); see United States v. Gray, 175 F.3d 617, 618 (8th Cir.) (per
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curiam), cert. denied, 528 U.S. 909 (1999). The court may order the defendant to
make a lump-sum payment or partial payments, § 3664(f)(3)(A). In addition,
§ 3664(f)(3)(B) provides:
A restitution order may direct the defendant to make nominal periodic
payments if the court finds from facts on the record that the economic
circumstances of the defendant do not allow the payment of any amount
of a restitution order, and do not allow for the payment of the full
amount of a restitution order in the foreseeable future under any
reasonable schedule of payments.
The district court’s Amended Judgment in a Criminal Case (a standard form
judicial document) provided that Thunderhawk “must make restitution” to Lillian
Plenty Chief in the amount of $14,967.47. The Schedule of Payments section
specified that the district court, “[h]aving assessed the defendant’s ability to pay,
[orders that] payment of the total criminal monetary penalties is due as follows.”
The district court checked Box A, which provided: “Lump sum payment of
$15,067.47 [which includes the $100.00 special assessment] due immediately,
balance due . . . in accordance [with] F below.” The special instructions entered in
Box F are that, “[w]hile on supervised release, the Defendant shall cooperate with
the Probation Officer in developing a monthly payment plan consistent with a
schedule of allowable expenses provided by the Probation Office.”
We have emphasized that the statute imposes the duty on the court to specify
the restitution payment schedule. It may not delegate that function to the Bureau of
Prisons or to the Probation Office. See United States v. McGlothlin, 249 F.3d 783,
785 (8th Cir. 2001). Here, the district court did not shirk that duty, although the
ambiguous Judgment form does not fit readily with the requirements of § 3664(f)(3).
As we read the form, unless the court invokes the nominal payment provision in
§ 3664(f)(3)(B), the full restitution amount is immediately due and payable because
otherwise there would be no debt to pay for a defendant who acquires the ability to
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pay while incarcerated, for example. But checking Box A on the form does not elect
the statute’s “lump sum payment” option when the district court also checks Box F
and enters “Special Instructions” that specify a schedule of payments. Here, given
Thunderhawk’s apparent inability to pay restitution while incarcerated, and uncertain
ability to pay restitution when he commences supervised release, the district court
sensibly directed Thunderhawk and the Probation Office to develop a suitable
schedule of payments when he is released. But that payment plan will be subject to
judicial review and approval. See generally United States v. Sawyer, 521 F.3d 792,
796-97 (7th Cir. 2008), cert. denied, 555 U.S. 1103 (2009).
We further conclude the district court did not abuse its discretion or clearly err
in determining that Thunderhawk’s economic circumstances, while uncertain, are not
so dire as to warrant a finding that they “do not allow the payment of any amount of
a restitution order, and do not allow for the payment of the full amount of a
restitution order in the foreseeable future under any reasonable schedule of
payments,” as § 3664(f)(3)(B) requires. Construing that provision narrowly serves
the basic purposes of restitution – “that victims should be compensated and that
defendants should be held to account for the impact of their conduct on those
victims.” Paroline, 134 S. Ct. at 1729.
The Amended Judgment of the district court is affirmed.
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