United States v. Fu Kuo

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
No. 08-10314
v.
FU SHENG KUO, aka Fu Shen Kuo,  D.C. No.
CR 07-00225-
aka Pakea, aka Zhu Ge, DAE-1
Translated, Brother Pig,
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 08-10330
Plaintiff-Appellee,
v.  D.C. No.
CR 07-00249-DAE
SHENGJI WANG,
OPINION
Defendant-Appellant.

Appeals from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
October 15, 2009—Honolulu, Hawaii
Filed December 3, 2009
Before: Robert R. Beezer, Susan P. Graber, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Graber
15805
15808 UNITED STATES v. KUO
COUNSEL
Peter C. Wolff, Jr., Federal Public Defender, Honolulu,
Hawaii, and Pamela E. Tamashiro, Honolulu, Hawaii, for the
defendants-appellants.
Karen L. Stevens, United States Department of Justice, Civil
Rights Division, Washington, D.C., for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendants Fu Sheng Kuo and Shengji Wang appeal the
imposition of restitution following their pleas of guilty to vio-
lating 18 U.S.C. § 241, Conspiracy to Violate Civil Rights.
Defendants “knowingly and willfully conspired to injure,
oppress, threaten, and intimidate [Chinese women] recruited
for and engaged in prostitution, in the Territory of American
Samoa.” As we explain below, restitution for “lost income,”
18 U.S.C. § 3663, is not the same as disgorgement of all of
Defendants’ ill-gotten gains from the victims’ forced prostitu-
tion. Accordingly, we must vacate the restitution order and
remand for further proceedings.
BACKGROUND
From December 1998 through September 2006, Defendants
induced women to travel to American Samoa from China,
UNITED STATES v. KUO 15809
Taiwan, and Fiji to engage in prostitution for the financial
benefit of Defendants. In January 2006, Wang traveled to
China and recruited victims Y.H. and J.C. (collectively “the
victims”) under the pretense that she would employ them to
work as cashiers in her grocery store in American Samoa.
Wang told them that she would arrange for their travel and
immigration documents for a fee of approximately $1,875
each and would also purchase their airline tickets and secure
their visas.
Y.H. and J.C. arrived in American Samoa in March 2006.
Defendants immediately confiscated their passports and return
tickets. The victims were taken to the Bao Lai, a restaurant
and brothel owned by Kuo. The Bao Lai was a three-story
structure with locks on each exterior door, making it possible
to lock all doors from the outside. Wire covered all of the
windows and the exterior staircase of the structure. Wire or
plywood also covered most of the balcony area.
The victims were locked in and coerced to work at the Bao
Lai as prostitutes, ostensibly to repay Defendants for their
travel expenses. Defendants threatened to hit or beat the vic-
tims if they did not do as they were told. Wang also told the
victims that she knew people in China who would hurt their
families if they refused to comply. Additionally, the victims
were regularly threatened with food deprivation for refusing
to work.
From March 7, 2006, through August 30, 2006, Y.H. and
J.C. performed prostitution services every night that fishing
vessels were in port. Each victim was forced to have various
forms of sexual intercourse with a total of 50 to 70 customers.
The victims stated that, from the first night on, they suffered
pain, bleeding, bruising, and tearing of their vaginas. They
also suffered abrasions, bruising, and pain to their legs and
back from certain sexual demands of customers. Many of the
customers did not wear condoms.
15810 UNITED STATES v. KUO
The victims were not paid any money for having sex with
customers. Customers paid Wang directly at a rate of approxi-
mately $100 to $200 per sex act. Wang received 60% of the
earnings, supposedly to pay the victims’ airfare and room and
board, while the remaining 40% went to Kuo. Defendants told
the victims that their debt was increasing and had reached
$6,000.
After several failed attempts to escape, J.C. successfully cut
the wire mesh around her bedroom window, removed the
wooden frame, and rolled the wire mesh to create an opening
large enough to crawl through. Y.H. used a rope and success-
fully climbed down the three stories. J.C. followed but slipped
and fell to the ground, hurting her head, ankle, arms, hands,
and back. The victims were picked up by a taxi driver, who
dropped them off in a nearby village. In the village, they met
a store owner who spoke Chinese; they explained to him that
they had been kept in captivity at the Bao Lai and forced to
work as prostitutes. The store owner reported the matter to the
police, and the victims were taken to the police station. A
Chinese translator assisted the victims in providing a state-
ment to the police.
After the police interview, the victims were treated for their
injuries at a hospital. The victims had developed health prob-
lems such as anxiety attacks, chest pains, vomiting, ulcers,
and suicidal ideations. J.C. received treatment that night for
pain, bruising, and swelling of her left foot; neck and lower
back pain; contusion to her forehead; and multiple abrasions
to her hands, wrists, elbows, and forearms as a result of her
fall from the Bao Lai balcony.
Y.H. reported to authorities that the injuries she sustained
have rendered her unable to bear a child. She also reported
excruciating pain and suffering. Y.H. has attempted suicide
on numerous occasions and suffers from constant nightmares.
She worries frequently that Kuo will get others to kill or harm
members of her family in China.
UNITED STATES v. KUO 15811
J.C. reported that she suffers from constant foot and lower
back pains, as well as sleeplessness. She also is suicidal and
worries that Kuo will kill her family and take revenge on her
when he is released from prison.
Defendants were arrested shortly after the victims made
their escape. Following Defendants’ arrests, police questioned
Kuo’s wife, Kueiling Chen. After being questioned, Chen and
a former employee returned to the Bao Lai and collected all
of Wang’s accounting documents pertaining to the prostitu-
tion business, including records, calendars, and notes showing
customers’ names and prostitution proceeds. Acting on Kuo’s
orders, they then burned the documents behind Chen’s home.
Kuo and Wang appeared separately before two different
United States magistrate judges; each pleaded guilty to a
single-count information, pursuant to a plea agreement. The
information charged each Defendant with knowingly and
willfully conspiring to injure, oppress, threaten, and intimi-
date persons in the free exercise and enjoyment of the rights
and privileges secured to them by the Constitution and laws
of the United States, that is, the right to be free from involun-
tary servitude secured by the Thirteenth Amendment to the
United States Constitution, all in violation of 18 U.S.C. § 241.
The district court imposed terms of incarceration and
entered judgment against Defendants on January 16, 2008. On
February 29, 2008, the government filed a motion for restitu-
tion. Kuo filed a response, which Wang joined. The govern-
ment then filed a supplemental motion in support of
restitution pursuant to 18 U.S.C. § 1593, an inapplicable stat-
ute. On March 25, 2008, the government filed an amended
motion for restitution under 18 U.S.C. § 3664, and Defen-
dants subsequently filed individual responses.
On April 30, 2008, the district court granted in part and
denied in part the amended restitution motion, ordering the
distribution of $4,226 seized during Defendants’ arrests but
15812 UNITED STATES v. KUO
declining to impose the additional amount requested by the
government due to a lack of supporting documentation and
discernible reasoning for the amount requested. The district
court gave the government another opportunity to move for
restitution.
On May 9, 2008, the government filed a renewed restitu-
tion motion, which the district court granted on June 30, 2008.
The district court held that the victims were entitled to restitu-
tion in the amount of the average customer charge for each
sex act multiplied by the total number of sex acts performed.
The court determined that the average charge was $170 per
act and held that Y.H. was entitled to $8,500 ($170 x 50 acts)
and J.C. was entitled to $11,050 ($170 x 65 acts). The court,
however, further held that “these amounts, reflecting the vic-
tims’ total losses, should therefore be offset by the respective
portions of the seized $4,226.” The court therefore ordered
that Y.H. shall be awarded $6,387 ($8,500 - $2,113 = $6,387)
and J.C. shall be awarded $8,937 ($11,050 - $2,113 =
$8,937). Defendants timely appeal.
STANDARDS OF REVIEW
“We review de novo the legality of a restitution order and,
if the order is within statutory bounds, we review the amount
of restitution for abuse of discretion.” United States v. Peter-
son, 538 F.3d 1064, 1074 (9th Cir. 2008) (citing United States
v. Phillips, 367 F.3d 846, 854 (9th Cir. 2004)). We review the
district court’s underlying factual findings for clear error.
United States v. Matsumaru, 244 F.3d 1092, 1108 (9th Cir.
2001). Generally, “we review a district court’s valuation
methodology de novo.” United States v. Lomow, 266 F.3d
1013, 1020 (9th Cir. 2001). Nevertheless, we review only for
plain error when the defendant failed to object to the legality
of the valuation method in the district court. United States v.
Bright, 353 F.3d 1114, 1120 (9th Cir. 2004). Kuo did not
object in district court to the valuation method. Wang
asserted, without citation to authority, only that the govern-
UNITED STATES v. KUO 15813
ment’s methodology “would have [the district court] calculate
and condone restitution based upon acts of prostitution.”
Because Kuo did not disagree with the court’s methodology,
contrary to his arguments on appeal, we review his argument
for plain error. We need not decide whether Wang’s cursory
objection in the district court entitles her to de novo review
of the valuation method because, as we explain below, we
vacate the restitution order in relevant part under the more
deferential plain error standard.
DISCUSSION
A. The district court imposed restitution at sentencing.
Defendants first argue that the district court did not order
restitution at sentencing and thus lacked authority to enter
post-judgment orders of restitution. We read the record differ-
ently.
During the sentencing hearing for Kuo, the court stated
before imposing sentence: “The court is not going to impose
a fine here, again, because any funds that the defendant may
have the court will place to the benefit of the victims under
the victim restitution laws.” During the first half of Wang’s
sentencing hearing, before she was sentenced, the prosecutor
confirmed with the court that the government had 60 days
within which to file a motion for restitution. When announc-
ing Wang’s sentence, the court then said that it “is not going
to impose a fine because the defendant is going to be com-
pelled to assist to pay for certain enumerat[ed] victim restitu-
tion matters which the court sees [as] more important in this
case.” The district court further stated that the government’s
motion for restitution “will be filed and the government is
given leave to file that within the appropriate statutory time.”
[1] Defendants argue that the foregoing statements “merely
reflect the court’s intention to order restitution, but do not
actually announce that Mr. Kuo and Ms. Wang must make
15814 UNITED STATES v. KUO
restitution as part of their sentences.” We reject Defendants’
cramped reading of the colloquy. The court plainly expressed
its inclusion of restitution as a part of the pronouncement of
sentence.
[2] Defendants further argue that the district court did not
order restitution at sentencing because the written judgment
does not reflect it. On the judgment form, the district court did
not check the box showing that restitution was ordered and
that the amount would be determined at a later time. But in
this circuit, “[w]here the oral pronouncement of a defendant’s
sentence is unambiguous, but differs from the written sen-
tence, the oral sentence controls.” United States v. Garcia, 37
F.3d 1359, 1368 (1994) (citing United States v. Hicks, 997
F.2d 594, 597 (9th Cir. 1993)). Here, the district court unam-
biguously expressed that Defendants would have to pay resti-
tution. The oral pronouncement of sentence ordering
restitution is controlling.
B. The district court properly ordered restitution despite
delay.
Defendants next aver that the district court erred by failing
to quantify the victims’ losses in a timely manner. We are not
persuaded.
Title 18 U.S.C. § 3664(a), titled “Procedure for issuance
and enforcement of order of restitution,” provides in pertinent
part:
For orders of restitution under this title, the court
shall order the probation officer to obtain and
include in its presentence report, or in a separate
report, as the court may direct, information sufficient
for the court to exercise its discretion in fashioning
a restitution order. The report shall include, to the
extent practicable, a complete accounting of the
losses to each victim, any restitution owed pursuant
UNITED STATES v. KUO 15815
to a plea agreement, and information relating to the
economic circumstances of each defendant.
(Emphasis added.) Additionally, 18 U.S.C. § 3664(d)(5)
expressly contemplates that the necessary information may
not be available by the time the court imposes sentence:
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.
Defendants’ sentences were imposed on January 16, 2008,
so the 90-day period to which § 3664(d)(5) refers ended on
April 15, 2008. The court granted restitution in part on April
30, 2008, and filed a final order granting restitution on June
30, 2008. Thus, the court exceeded the 90-day window
described by § 3664(d)(5).
[3] But our precedent instructs that “the failure to comply
with [the procedural requirements of section 3664] is harm-
less error absent actual prejudice to the defendant.” United
States v. Cienfuegos, 462 F.3d 1160, 1163 (9th Cir. 2006).
That principle follows because “the procedural requirements
of section 3664 were designed to protect victims, not defen-
dants.” Id. Specifically, “ ‘the purpose behind the statutory
ninety-day limit on the determination of victims’ losses is not
to protect defendants from drawn-out sentencing proceedings
or to establish finality; rather, it is to protect crime victims
from the willful dissipation of defendants’ assets.’ ” Id. (alter-
ation omitted) (quoting United States v. Zakhary, 357 F.3d
186, 191 (2d Cir. 2004)).
[4] Here, Defendants received oral notice at sentencing that
they would be ordered to pay restitution. See id. (holding that
there was no actual prejudice where the defendant has “the
15816 UNITED STATES v. KUO
functional equivalent of the notice required”). Defendants
have made no showing of prejudice occasioned by the mini-
mal delay in this case. As a result, their contention that the
district court imposed restitution too late must fail.
C. The district court plainly erred in calculating restitution.
Defendants argue that the district court used an improper
method of calculating the amount of restitution. As discussed
above, because Defendants did not raise this argument before
the district court, we review for plain error. Plain error is “(1)
error, (2) that is plain, and (3) that affects substantial rights.
If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Cotton,
535 U.S. 625, 631 (2002) (brackets, citation, and internal quo-
tation marks omitted).
[5] Defendants stand convicted of violating 18 U.S.C.
§ 241. Accordingly, the district court was authorized to
impose restitution under 18 U.S.C. § 3663. See 18 U.S.C.
§ 3663(a)(1)(A) (“The court, when sentencing a defendant
convicted of an offense under this title, . . . may order . . . that
the defendant make restitution to any victim of such offense
. . . .”); see also id. § 3556 (“The court, in imposing a sen-
tence on a defendant who has been found guilty of an offense
. . . may order restitution in accordance with section 3663.”).
When imposing restitution under § 3663, the court must con-
sider “the amount of the loss sustained by each victim as a
result of the offense.” Id. § 3663(a)(1)(B)(i)(I). We have
emphasized that “the amount of restitution under [§ 3663] is
limited to the victim’s actual losses.” United States v. Bussell,
504 F.3d 956, 964 (9th Cir. 2007), cert. denied, 129 S. Ct. 40(2008). “[A]ctual loss for restitution purposes is determined
by comparing what actually happened with what would have
happened if the defendant had acted lawfully.” Id. (brackets
and internal quotation marks omitted).
UNITED STATES v. KUO 15817
The district court rejected the calculation method required
by § 3663. It stated that, “due to the nature of the illegal busi-
ness in which the victims were forced to participate, there is
no way to calculate restitution here based on a comparison
between what actually happened with what would have hap-
pened had [Defendants] acted lawfully.” Instead, the district
court determined the amount of restitution by calculating
Defendants’ ill-gotten gains via their exploitation of the vic-
tims. In particular, the district court adopted the following cal-
culation, which had been proposed by the government:
(average price of each commercial sex act) x (average esti-
mated number of commercial sex acts performed) = restitu-
tion. The district court found that the average price for each
sex act was $170. It then multiplied $170 by the estimated
number of sex acts each victim performed and held “that the
following restitution amounts are warranted: (1) for Y.H.,
$8,500 ($170 x 50 acts); (2) for J.C., $11,050 ($170 x 65
acts).” Pursuant to its order filed April 30, 2008, the district
court held further that the $4,226 seized at the time of Defen-
dants’ arrests should be distributed equally to J.C. and Y.H.
and credited toward the full amount of restitution.
[6] The district court derived its calculation method, which
the government had proposed, from 18 U.S.C. § 1593—the
restitution provision in the Trafficking Victims Protection Act
of 2000 (“Trafficking Act”), Pub. L. No. 106-386, 114 Stat.
1464. Section 1593 directs that the district court’s calculation
shall include the victim’s actual losses “and shall in addition
include the greater of the gross income or value to the defen-
dant of the victim’s services or labor or the value of the vic-
tim’s labor as guaranteed under the minimum wage and
overtime guarantees of the Fair Labor Standards Act.” 18
U.S.C. § 1593(b)(3) (emphases added). In other words, the
Trafficking Act mandates restitution that includes a defen-
dant’s ill-gotten gains. Section 1593 applies, however, only to
cases in which a defendant has been convicted of an offense
under the Trafficking Act. Id. § 1593(a).
15818 UNITED STATES v. KUO
[7] But Defendants were not convicted of an offense under
the Trafficking Act; they were convicted of a violation of 18
U.S.C. § 241. The restitution provisions of the Trafficking
Act simply do not apply. Instead, the restitution provisions of
§ 3663 apply. And the calculation methods under § 3663 do
not include a defendant’s ill-gotten gains.
For its part, the government does not dispute any of the
foregoing analysis. Instead, it argues on appeal that,
“[a]lthough Section 1593 does not mandate restitution for vio-
lations of 18 U.S.C. [§ ] 241, it was reasonable in this case,
where defendants engaged in the same sort of behavior, to
look to Section 1593 for guidance.” We disagree.
[8] Congress specified criminal penalties for violations of
18 U.S.C. § 241, which include restitution “limited to the vic-
tim’s actual losses.” Bussell, 504 F.3d at 964. Congress speci-
fied different criminal penalties for violations of the
Trafficking Act, which include restitution for a defendant’s
ill-gotten gains.1 18 U.S.C. § 1593(b)(3). If the government
wanted to seek penalties under the Trafficking Act, it was
required to prosecute Defendants under the Trafficking Act.
Having chosen to prosecute Defendants under 18 U.S.C.
§ 241, it may seek only the penalties authorized by law for
violations of that crime. The government has cited no
authority—and we know of none—for the proposition that the
district court may exceed its statutory authority simply
because of the government’s assertion that “defendants
engaged in the same sort of behavior” as a crime of which
Defendants were not convicted.
[9] Because the district court rejected the correct calcula-
1
The government does not dispute that a defendant’s ill-gotten gains are
different from, and can exceed, the victim’s actual losses. For instance, an
enslaved victim forced to work as a drug mule may smuggle millions of
dollars’ worth of drugs for the defendant. The value of that service to the
defendant easily might exceed the victim’s actual losses.
UNITED STATES v. KUO 15819
tion method (under § 3663) in favor of an incorrect method
(under § 1593), the district court erred. Moreover, we hold
that the district court’s error was “plain,” because the statutes
are clear and because the government openly admitted that its
proposed methodology derived from the wrong restitution
statute. See United States v. Tuyet Thi-Bach Nguyen, 565 F.3d
668, 677 (9th Cir. 2009) (“An error is plain when it is ‘clear’
or ‘obvious’ under the law.”). Finally, we hold that the error
affected Defendants’ substantial rights and affected the fair-
ness, integrity, or public reputation of the judicial proceed-
ings. The government did not present evidence—and the
district court did not make findings—of the victims’ actual
losses, as required by § 3663. See Bussell, 504 F.3d at 964(holding that the amount of restitution is “limited to the vic-
tim’s actual losses”); United States v. Joyner, 201 F.3d 61, 81
(2d Cir. 2000) (holding that a district court’s failure to make
the necessary findings related to a restitution order constitutes
plain error); United States v. Smith, 156 F.3d 1046, 1057
(10th Cir. 1998) (holding that, where the government has not
“present[ed] evidence at the hearing concerning the appropri-
ate amount of restitution[,] . . . [the] imposition of the [restitu-
tion] order constitutes plain error”). We therefore cannot tell
whether the amount of restitution imposed by the district
court exceeded the victims’ actual losses.2 See United States
v. James, 564 F.3d 1237, 1243 (10th Cir. 2009) (“[A] district
court may not order restitution in an amount that exceeds the
actual loss caused by the defendant’s conduct, which would
amount to an illegal sentence constituting plain error.”);
United States v. Austin, 479 F.3d 363, 373 (5th Cir. 2007)
2
We recognize that the victims’ actual losses might meet or exceed the
amount of the district court’s original restitution order. But we cannot tell
on this record. Because the original restitution amount might exceed the
victims’ actual losses, we must hold that the error affected Defendants’
substantial rights and affected the integrity of the judicial proceeding. On
remand, the district court must use a calculation method authorized by
§ 3663, and restitution must be limited to the victims’ actual losses. But
§ 3663 does not otherwise impose a maximum restitution amount that may
be ordered, and we impose none.
15820 UNITED STATES v. KUO
(“When a defendant is ordered to pay restitution in an amount
greater than the loss caused, the error affects substantial rights
as well as the fairness and integrity of the judicial proceed-
ing.”); United States v. Alburay, 415 F.3d 782, 789 (7th Cir.
2005) (holding that restitution in the amount of $1,750,000
constituted plain error because the actual loss was only
$1,725,000); see also United States v. Diaz, 245 F.3d 294,
312 (3d Cir. 2001) (holding that a district court cannot order
“restitution in amounts that will result in the payment to the
victim of an amount greater than the victim’s loss”); United
States v. Royal, 100 F.3d 1019, 1033 (1st Cir. 1996) (holding
that no plain error occurred where any hypothetical minor
error in calculating total loss would not have affected the ulti-
mate amount of restitution, because the court imposed only
$30,000 of restitution after calculating a total loss of
$500,000).
[10] We therefore vacate the restitution order and remand
the case to the district court on an open record to allow recal-
culation of restitution under 18 U.S.C. § 3663. See United
States v. Matthews, 278 F.3d 880, 885 (9th Cir. 2002) (en
banc) (“[A]s a general matter, if a district court errs in sen-
tencing, we will remand for resentencing on an open record—
that is, without limitation on the evidence that the district
court may consider.”). On remand, the district court would be
acting within its discretion to include restitution for the vic-
tims’ bodily injury under 18 U.S.C. § 3663(b)(2)(C); restitu-
tion for the $1,875 that each victim paid to Defendants to be
brought to American Samoa, see United States v. English, 92
F.3d 909, 917 (9th Cir. 1996) (affirming the district court’s
order of restitution for an amount representing nine investors’
aggregated losses, including the investors’ initial payments, in
a fraudulent investment scheme); and any other restitution
amount, such as lost wages for legitimate employment, autho-
rized by § 3663. But the district court may not order restitu-
tion to reflect Defendants’ ill-gotten gains.
We understand the district court’s desire to make Defen-
dants disgorge everything that they gained by cruelly exploit-
UNITED STATES v. KUO 15821
ing these victims. But restitution for a violation of § 241 is
limited by the provisions of § 3663; other means (such as
fines) are available to accomplish disgorgement. The victims
also may choose to sue Defendants civilly for damages,
including but not limited to damages to help compensate them
for their extreme pain and suffering. With regard to restitu-
tion, however, the court and the victims are bound to the gov-
ernment’s choice to pursue a civil rights prosecution rather
than a human-trafficking prosecution.
D. Sufficiency of the evidence in support of restitution.
Defendants also claim that the evidence presented by the
government in support of its motion for restitution is not suffi-
cient to support an order of restitution. See 18 U.S.C.
§ 3664(a) (listing potential items of information required by
the district court before imposing restitution). They contend
that the victims’ and law enforcement officers’ affidavits con-
tained unsubstantiated conclusions and imprecise accusations.
In ordering restitution, the district court relied on several
different pieces of evidence. The victims submitted affidavits
describing the harms that they suffered and estimating the
number of sex acts that they were forced to perform during
the period in question, and the government submitted evi-
dence from four independent sources to support its estimate
of the price that Defendants charged for each sex act.
[11] Because we hold that the district court erred by calcu-
lating restitution using the market value of the prostitution
services that the victims performed, we need not decide
whether sufficient evidence supported that calculation. Cf.
Hughey v. United States, 495 U.S. 411, 422 (1990) (holding
that the district court used the wrong legal standard when cal-
culating restitution and remanding for further proceedings,
without discussing sufficiency of the evidence under the
wrong standard). Of course, some of the evidence on which
the district court relied may remain relevant when it recalcu-
15822 UNITED STATES v. KUO
lates restitution to reflect the victims’ actual losses. In that
regard, “victim affidavits will generally provide sufficient,
reliable evidence to support a restitution order.” United States
v. Waknine, 543 F.3d 546, 557 (9th Cir. 2008).
Moreover, it is inappropriate for Defendants to contest the
sufficiency of the government’s evidence in support of restitu-
tion to the extent that other documentary evidence that Defen-
dants’ associates deliberately destroyed may have contained
information relevant to the restitution calculation. In particu-
lar, the district court found that, after Defendants’ arrests,
Kuo’s wife returned to the Bao Lai and, along with a former
employee, destroyed all of the accounting documents of the
prostitution business. These records were certainly relevant to
determining the amount of restitution under the method the
district court incorrectly used, and some may also be relevant
to establish the victims’ actual losses under the proper meth-
odology.
CONCLUSION
We affirm the district court’s restitution order insofar as it
held that the $4,226 seized from Defendants during the execu-
tion of the search warrant may be used to pay restitution to the
two victims in equal parts; Defendants have not challenged
that portion of the order. We vacate the portion of the order
that calculates the total amounts of restitution and remand for
a new calculation consistent with this opinion.
AFFIRMED in part; VACATED and REMANDED in part.