United States District Court, D. Maryland
MEMORANDUM OPINION AND RESTITUTION ORDER
THOMAS
M. DIGIROLAMO UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on the victim's request for an
award of restitution. On October 30, 2019, the Court
conducted a restitution hearing at which the defendant
testified. The Court also considered the pleadings and
memoranda filed theretofore by the parties including the
Victim's Post-Remand Restitution Memorandum and Exhibits
(ECF No. 64) filed on October 16, 2019, and the Victim's
Post-Restitution Hearing Reply (ECF No. 65) filed on November
4, 2019.
“Federal
courts do not have the inherent authority to order
restitution, but must rely on a statutory source to do
so.” United States v. Ritchie, 858 F.3d 201,
206 (4th Cir. 2017) (quoting United States v. Davis,
714 F.3d 809, 812 (4th Cir. 2013)). “Outside of the
probation context, restitution to victims of federal crimes
is governed predominately by either the [Victim and Witness
Protection Act of 1982 (the “VWPA”)] or the
[Mandatory Victim Restitution Act of 1996 (the
“MVRA”)].” Id. at 206-07. The
parties concede that the VWPA (18 U.S.C. § 3663) governs
the victim's restitution request because the
defendant's offenses do not qualify as offenses that
warrant mandatory restitution under the MVRA. Cf. 18
U.S.C. § 3663A(a)(1), (c). Further, a crime victim has
the right to full and timely restitution as provided by law
under 18 U.S.C. § 3771(a)(6). In determining whether to
order restitution, the Court shall consider the amount of the
loss sustained by the victim as a result of the offense; the
financial resources of the defendant; the financial needs and
earning ability of the defendant; and such other factors as
the Court deems appropriate. Id. §
3663(a)(1)(B)(i)(I)-(II). In a case involving an offense
resulting in bodily injury to a victim, the court may require
the defendant to (1) pay an amount equal to the cost of
necessary medical and related professional services and
devices related to physical care; (2) pay an amount equal to
the cost of necessary physical and occupational therapy and
rehabilitation; and (3) reimburse the victim for income lost
by the victim. Id. § 3663(b)(2)(A)-(C).
Further, in a case involving an offense resulting in damage
to or loss or destruction of property of a victim, the Court
may require the defendant to “pay an amount equal to .
. . the value of the property on the date of the damage,
loss, or destruction.” Id. §
3663(b)(1)(B). The Court finds that this is a case involving
an offense resulting in both bodily injury and damage to
property of the victim.
The
victim requests restitution in the aggregate amount of $22,
201.39 consisting of the following: (1) past lost wages ($19,
040.32); (2) motor vehicle insurance deductible ($250.00);
(3) out-of-pocket medical expenses ($853.75); and (4)
damaged/lost personal property ($2, 057.32). The defendant
does not contest these amounts. From its review of the
exhibits and information provided by the victim to establish
restitution, the Court finds that these amounts are fair and
reasonable and that they were incurred by the victim as a
result of the offense committed by the defendant. Therefore,
the Court will order the defendant to pay restitution to the
victim in the amount of $22, 201.39, consistent with this
opinion.
Upon
the determination of the amount of restitution owed to the
victim, the Court must now specify the manner in which, and
the schedule according to which, the restitution is to be
paid, in consideration of the financial resources and other
assets of the defendant; the projected earnings and other
income of the defendant; and the financial obligations of the
defendant. Id. § 3664(f)(2)(A)-(C). A
restitution order may direct the defendant to make a single,
lump-sum payment or partial payments at specified intervals.
A restitution order may direct the defendant to make nominal
periodic payments if the Court finds from the 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. Id. §
3664(f)(3)(A)-(B). Further, the Court shall provide, as an
explicit condition of a sentence of probation, that the
defendant “make restitution in accordance with
[section] . . . 3663” and “that the defendant
will notify the court of any material change in the
defendant's economic circumstances that might affect the
defendant's ability to pay restitution.”
Id. § 3563(a)(6)(A), (7).
The
defendant testified that she is a 68-year-old resident of the
District of Columbia.[1]She is employed as a bus driver. She
testified at the restitution hearing that she earns $23.19
per hour, but she did not testify as to how many hours she
works. However, the defendant did testify that her October
12, 2019, pay stub reflected a net income in 2019 through
that date (approximately 9½ months) of $21, 950.
Therefore, the Court finds that the defendant's net
monthly income from her employment is approximately $2, 310.
The defendant also testified that she receives approximately
$1, 200 per month in social security payments. She has no
other income. In light of her age and health issues, the
defendant does not intend to work more than three more years.
Because of this testimony, Court finds that the
defendant's net monthly income is $3, 510.
In
regard to expenses, the defendant testified that she incurs
the following expenses on a monthly basis: (1) mortgage ($1,
500); (2) water ($100); (3) home warranty ($67); (4) internet
($52); (5) cell phone ($50); (6) burial plot ($48); (7)
outstanding medical bills that total $7, 395 ($200); (8)
outstanding credit card balance of $1, 200 ($100); (9) car
loan ($391); (10) car insurance ($133); (11) electronic
monitoring ankle bracelet ($31); (12) food ($300); (13)
household supplies ($50); and (14) fuel ($80). The total of
these expenses is $3, 102.
The
Court finds that these expenses are reasonable and most
likely understate the defendant's actual monthly
expenses. For example, other than water, she did not note any
other utility expenses, such as gas, electricity, or sewer,
although the presentence report reflects that she pays $705
for utilities. She also did not note any expenses for
clothing and shoes, personal items, hair care, health
expenses, or vehicle maintenance. The defendant testified
that, when her grandson stays with her on weekends and when
school is not in session, she pays for his food. However, the
Court does not find that food consumed by her minor grandson
is a significant portion of her food expense. Therefore, the
Court finds that the defendant's net monthly income ($3,
510) exceeds her stated monthly expenses ($3, 102), resulting
in a monthly cash flow of $408.00. The Court notes, however,
that her actual monthly cash flow is likely less, given other
expenses she would incur, but about which she did not
testify.
Regarding
assets and liabilities, the defendant owns a 2003 Mazda CRV
(value unknown) and a residence (estimated value $410, 000).
The mortgage balance according to the probation office is
approximately $246, 843. Therefore, it appears that the
defendant has home equity of approximately $163, 157. There
is no evidence, however, that the defendant has been ever
approved for a home equity loan or would qualify for a home
equity loan if she applied at this time. In addition to the
equity in a home, financial institutions consider several
factors in determining to approve a home equity loan, such as
the borrower's debt-to-income ratio, the borrower's
credit score, the borrower's history of paying bills on
time, etc. Because there is no evidence that the defendant
would be approved for a home equity loan if she applied, the
Court does not find that the equity in her home is a readily
available resource to fund a restitution order.
Considering
these findings, the Court will require the defendant to make
restitution payments to the victim at the rate of $300 each
month, beginning 30 days from the date of this Order. The
Court finds that this payment schedule is feasible,
considering the evidence and the Court's findings
therefrom regarding the defendant's income, expenses,
assets and liabilities, and projected earnings.
For the
reasons stated above, it is this 15th day of November 2019,
by the United States District Court for the District of
Maryland ORDERED that:
1. The
defendant pay restitution to the victim in the amount of $22,
201.39, at a rate of at least $300.00 each month, with the
first monthly payment due 30 days after the date of this
Order.
2. The
payment of said restitution shall be a condition of
probation.
3. The
defendant shall notify the court and the Attorney General of
any material change in the defendant's economic
circumstances that might affect ...