FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 09-30072
Plaintiff-Appellee, D.C. No.
v. 2:07-CR-00135-
MICHAEL J. ANDREWS, EFS-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted
November 2, 2009—Seattle, Washington
Filed April 7, 2010
Before: Arthur L. Alarcón, Ferdinand F. Fernandez and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Alarcón;1
Concurrence by Judge Clifton
Dissent by Judge Alarcón
1
This opinion serves as the opinion of the majority of the court on the
issues of overcompensation or double-dipping as a result of payment to
the Crime Victims’ Compensation Program (CVCP) and expert testimony
regarding the proximate cause of the victim’s injuries. Judge Clifton’s
concurring opinion expresses the majority view on the payment of restitu-
tion to the CVCP, from which Judge Alarcón dissents.
5279
UNITED STATES v. ANDREWS 5281
COUNSEL
Matthew Campbell, Federal Defenders of Eastern Washington
& Idaho, Spokane, Washington, for the defendant-appellant.
5282 UNITED STATES v. ANDREWS
Matthew F. Duggan, Assistant United States Attorney, Spo-
kane, Washington, for the plaintiff-appellee.
OPINION
ALARCÓN, Senior Circuit Judge:
Michael J. Andrews appeals from a restitution order
imposed pursuant to the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, following his guilty plea to
an assault resulting in serious bodily injury to Scott Bershaw
in violation of 18 U.S.C. §§ 1151, 1153(a), 113(a)(6), (b)(2),
and 1365(h)(3).2 Andrews contends the district court erred in
ordering him to pay restitution for lost wages to the Crime
Victim’s Compensation Program (CVCP), Wash. Rev. Code
2
18 U.S.C. § 113(a)(6) and (b)(2), provides as follows:
(a) Whoever, within the special maritime and territorial juris-
diction of the United States, is guilty of an assault shall be pun-
ished as follows:
(6) Assault resulting in serious bodily injury, by a fine under
this title or imprisonment for not more than ten years, or both.
....
(b) As used in this subsection—
(2) the term “serious bodily injury” has the meaning given that
term in section 1365 of this title.
18 U.S.C. § 1365 provides:
(h) As used in this section—
(3) the term “serious bodily injury” means bodily injury which
involves—
(A) a substantial risk of death;
(B) extreme physical pain;
(C) protracted and obvious disfigurement; or
(D) protracted loss or impairment of the function of a bodily
member, organ, or mental faculty; and . . .
UNITED STATES v. ANDREWS 5283
§ 7.68, in determining that payment to CVCP does not consti-
tute overcompensation or double-dipping, and in refusing to
allow an expert witness to testify regarding the proximate
cause of the victim’s injuries. We remand for a renewed resti-
tution proceeding because the district court abused its discre-
tion in precluding Andrews’s expert witness from testifying
regarding the proximate cause of Bershaw’s injuries.
I
On October 2, 2007, a federal grand jury returned a one
count indictment charging Andrews with assault resulting in
serious bodily injury.3 On September 4, 2008, Andrews pled
guilty to the one count indictment.
On January 14, 2009, Andrews was sentenced to imprison-
ment for 28 months. In the plea agreement, Andrews agreed
to an order of restitution in an amount to be determined prior
to the sentencing proceedings. At the sentencing hearing,
however, Andrews requested the district court to bifurcate the
sentencing and restitution hearing because he disputed the
amount of restitution recommended in the pre-sentence report.
The district court granted Andrews’ request.
At the restitution hearing, the district court ordered that
Andrews pay $59,284.41 directly to CVCP for Bershaw’s
medical bills and his injury-related loss of income. Pursuant
to 18 U.S.C. § 3663A(b)(2), the district court stated “that the
CVCP is entitled to be reimbursed for both medical bills and
compensable losses because Mr. Bershaw experienced actual
losses, and the CVCP helped him cover those losses. Reim-
bursing the CVCP directly avoids the unnecessary procedural
hurdle of reimbursing Mr. Bershaw, only to have the CVCP
then seek reimbursement from Mr. Bershaw.”
3
The district court had subject matter jurisdiction of this matter pursuant
to 18 U.S.C. § 1153(a) because Andrews is an enrolled member in the
Spokane Tribe of Indians and committed a crime within Indian country as
defined by 18 U.S.C. § 1151.
5284 UNITED STATES v. ANDREWS
II
Andrews contends that the district court’s restitution order
overcompensated Bershaw because he “received payment
from both [CVCP] and the Social Security Administration
(SSA) for the same period of disability.” (Appellant Br. 19).
He asserts “[t]his payment violated Section 3664(j)(2), which
requires that ‘[a]ny amount paid to a victim under an order of
restitution shall be reduced by any amount later recovered as
compensatory damages for the same loss by the victim.” Id.
The district court, however, determined that payment by
CVCP was for “loss of function,” while payment by the SSA
was because “Bershaw was permanently, totally disabled.”
Thus, the district court stated, “[t]hese are separate disability
distinctions entitled to separate disability awards.”
[1] Because there is evidence in the record supporting the
district court’s findings that the disability awards from CVCP
and SSA constituted two different types of compensation, the
district court did not commit clear error in determining that no
overcompensation or double-dipping occurred.
III
Andrews further maintains that the district court erred in
not allowing him to present an expert witness at the restitution
proceeding “in an effort to demonstrate that his actions were
not the proximate cause of Mr. Bershaw’s disability.” (Appel-
lant Br. 23). He argues that he “explained [to the district
court] that Dr. Mays was being called to testify regarding
‘whether [ ] Bershaw’s cognitive disorder is attributed to the
head injury or are there possible—other possible reasons for
the cognitive disorder.” Id.
[2] “[R]estitution can only include losses directly resulting
from a defendant’s offense.” Stoddard, 150 F.3d at 1147
(quoting United States v. Sablan, 92 F.3d 865, 870 (9th Cir.
1996)). “For that reason, ‘a restitution order must be based on
UNITED STATES v. ANDREWS 5285
losses directly resulting from the defendant’s criminal con-
duct.’ ” Id.
[3] “A victim for restitution purposes is a person who has
suffered a loss caused by the specific conduct that is the basis
of the offense of conviction.” United States v. Gamma Tech
Indus., Inc., 265 F.3d 917, 927 (9th Cir. 2001) (quoting
Hughey, 495 U.S. at 413) (footnote omitted). In Gamma Tech
this court stated:
It is clear from our cases that the phrase “directly
resulting” means that the conduct underlying the
offense of conviction must have caused a loss for
which a court may order restitution, but the loss can-
not be too far removed from that conduct. . . . Defen-
dant’s conduct need not be the sole cause of the loss,
but any subsequent action that contributes to the
loss, such as an intervening cause, must be directly
related to the defendant’s conduct. . . . The causal
chain may not extend so far, in terms of the facts or
the time span, as to become unreasonable.
Gamma Tech, 265 F.3d at 928 (citations omitted). “[T]he
main inquiry for causation in restitution cases [is] whether
there was an intervening cause and, if so, whether this inter-
vening cause was directly related to the offense conduct.”
Gordon, 393 F.3d at 1055 (quoting United States v. Meksian,
170 F.3d 1260, 1263 (9th Cir. 1999)).
“Under 18 U.S.C. § 3664 (‘§3664’), a dispute as to the
proper amount of restitution must be resolved by the district
court by a preponderance of the evidence.” United States v.
Waknine, 543 F.3d 546, 556 (9th Cir. 2008) (citing 18 U.S.C.
§ 3664(e) and United States v. Clayton, 108 F.3d 1114, 1118
(9th Cir. 1997)). “The government bears the burden of prov-
ing that a person or entity is a victim for purposes of restitu-
tion, [United States v. ]Baker, 25 F.3d [1452,] 1455 [(9th Cir.
1994) overruled on other grounds by United States v. Law-
5286 UNITED STATES v. ANDREWS
rence, 189 F.3d 838, 846 (9th Cir. 1999)], and of proving the
amount of the loss, 18 U.S.C. § 3664(e).” Id. (citation omit-
ted). “[T]he government must provide the district court with
more than just . . . general invoices . . . ostensibly identifying
the amount of their losses.” United States v. Brock-Davis, 504
F.3d 991, 1002 (9th Cir. 2007) (quoting United States v.
Menza, 137 F.3d 533, 539 (7th Cir. 1998)).
[4] In denying Andrews’s request to present his expert wit-
ness, the district court engaged in the following colloquy with
his counsel:
THE COURT: So tell me how I am going to be
helped by Doctor Mays’ testimony today?
MR. FISCHER: Only that —
THE COURT: See, it is not enough for Doctor Mays
to tell me I don’t think they got it right at CVCP.
CVCP made their determinations and they paid the
money. End of story as far as I am concerned.
....
MR. FISCHER: So I am asking simply of Doctor
Mays if the disability that was paid out — or his
diagnosis of disability, he being disabled, was a
direct result of the head injury or it could have been
from another source.
THE COURT: Counsel, the reason that I hesitate
here is that my limited understanding of the Crime
Victims Compensation Program is they are not going
to pay a nickel unless they are satisfied based on the
examinations of various treatment providers that the
initial criminal incident caused the condition for
which application sought benefits, and since they
made that determination that both on the treating
UNITED STATES v. ANDREWS 5287
physicians and on the evaluations, are you attempt-
ing to go behind those evaluations to say they got it
wrong?
MR. FISCHER: Yes.
THE COURT: I don’t know how you can do that.
They did it, they paid it, end of sorry [sic].
....
MR. FISCHER: Well, Your Honor, I would — I
would simply ask Doctor Mays if there was another
explanation for the disability that was determined by
CVCP.
....
THE COURT: Mr. Bershaw is like everybody else.
He comes with a whole set of complete psychosocial
history, and that individual is — then suffers a skull
fracture which imposes on what he already is.
The severe injury — severe physical injury and
whatever reasonable consequences flow from that
psychologically and physically, and that is within the
authority of the CVCP to determine based on expert
evaluations that they relied on so I don’t know how
we get any further on this.
These comments demonstrate that the district court apparently
found that Andrews’s conduct was the sole cause of Ber-
shaw’s mental and physical condition without considering
contrary evidence proffered by Andrews. The district court’s
finding violated the court’s duty to resolve any dispute con-
cerning the cause of Bershaw’s ailments by a preponderance
of the evidence. Waknine, 543 F.3d at 556 (citation omitted).
5288 UNITED STATES v. ANDREWS
Thus, the district court abused its discretion in rejecting the
expert witness’s testimony.
[5] Upon remand, the district court should permit Andrews
to present any evidence indicating that his criminal conduct
did not cause Bershaw’s mental and physical condition.
Because the amount of restitution may be affected by the dis-
trict court’s findings on the cause of the victim’s medical
expenses and his inability to work, the district court should
order that the victim be provided with notice of the restitution
hearing. The district court must determine that restitution for
medical expenses is supported by reliable evidence and pro-
vide an adequate explanation as to how it determined the res-
titution award. The district court may only award restitution
for medical expenses and loss of income if the Government
demonstrates that all costs incurred were proximately caused
by Andrews’s criminal conduct.
VACATED and REMANDED with instructions.
CLIFTON, Circuit Judge, joined by Judge Fernandez:
We join Judge Alarcón’s opinion for the court. We also
conclude it was proper for the district court to order as part
of the restitution award that payment for the victim’s lost
income be made directly to the third party that had reimbursed
the victim for that loss, in this case Washington’s Crime Vic-
tim’s Compensation Program (CVCP), rather than to the
actual victim of the crime.
“We review de novo the legality of a restitution order and,
if the order is within the statutory bounds, we review the
amount of restitution for abuse of discretion.” United States
v. Peterson, 538 F.3d 1064, 1074 (9th Cir. 2008). Factual
findings supporting a restitution order are reviewed for clear
UNITED STATES v. ANDREWS 5289
error. United States v. Berger, 473 F.3d 1080, 1104 (9th Cir.
2007).
“Court cannot order restitution without statutory authoriza-
tion.” United States v. Brock-Davis, 504 F.3d 991, 996 (9th
Cir. 2007). Such restitution statutes include the Victim and
Witness Protection Act of 1982 (“VWPA”), which authorizes
a discretionary payment for certain offenses, 18 U.S.C.
§ 3663, and the Mandatory Victims Restitution Act of 1996
(“MVRA”), which authorizes mandatory payment for crimes
of violence and property offenses, 18 U.S.C. § 3663A. “[T]he
[VWPA and the MVRA] are identical in all important
respects, and courts interpreting the MVRA may look to and
rely on cases interpreting the VWPA as precedent.” United
States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004).
Congress explicitly authorized direct payment to a third
party such as CVCP in 18 U.S.C. § 3664(j)(1):
If a victim has received compensation from insur-
ance or any other source with respect to a loss, the
court shall order that restitution be paid to the person
who provided or is obligated to provide the compen-
sation, but the restitution order shall provide that all
restitution of victims required by the order be paid to
the victims before any restitution is paid to such a
provider of compensation.
The victim here received compensation from CVCP with
respect to his lost income. Under this statute, it is appropriate
to order that restitution be paid directly to CVCP. The only
limitation under the statute is that the victim has to be fully
paid before the third party, CVCP, can be paid.
Defendant Michael Andrews argues and the dissenting
opinion by Judge Alarcón agrees that this statute should be
disregarded based upon the language used in 18 U.S.C.
§ 3663A(b)(2):
5290 UNITED STATES v. ANDREWS
(A) pay an amount equal to the cost of necessary
medical and related professional services and
devices relating to physical, psychiatric, and psycho-
logical care, including nonmedical care and treat-
ment rendered in accordance with a method of
healing recognized by the law of the place of treat-
ment;
(B) pay an amount equal to the cost of necessary
physical and occupational therapy and rehabilitation;
and
(C) reimburse the victim for income lost by such vic-
tim as a result of such offense.
It is contended in particular that subsection (C), which con-
cerns lost income, provides that it is “the victim” who is to be
“reimburse[d],” in contrast to subsections (A) and (B), con-
cerning the costs of health care and therapy, which do not
specify to whom the payment should be made.
But there is no reason to read that language in such a way
as to infer that Congress intended to repeal the more specific
direction contained in § 3664(j)(1) on the subject of to whom
the restitution payments may be made. If Congress intended
to repeal § 3664(j)(1), it presumably would have done so. To
the contrary, it is a “longstanding canon of statutory construc-
tion that terms in a statute should not be construed so as to
render any provision of that statute meaningless or superflu-
ous.” Beck v. Prupis, 529 U.S. 494, 506 (2000). Section
3664(j)(1) is still a part of the statutes and should not be disre-
garded.
The dissenting opinion does not dispute that under Wash-
ington law, CVCP is entitled to receive the money it already
paid the victim, Scott Bershaw, back from him, if and when
he is reimbursed by defendant Andrews. As the district court
observed, “[r]eimbursing the CVCP directly avoids the unnec-
UNITED STATES v. ANDREWS 5291
essary procedural hurdle of reimbursing Mr. Bershaw, only to
have the CVCP then seek reimbursement from Mr. Bershaw.”
Andrews should not benefit at all by requiring that the restitu-
tion payment be made to the victim instead of CVCP, for he
would properly still have to pay a total amount of restitution
in the same amount. If that were the case, the amount to be
paid directly to the victim would simply be larger, and the
victim would be expected to pay the additional amount back
to CVCP. Nobody would benefit from requiring that the funds
be routed in that circuitous manner. Instead, requiring pay-
ment to be made directly to the victim would require addi-
tional effort from the victim, the district court, and CVCP to
make the system work properly. We conclude that the statutes
should not be interpreted to require such inefficiency.
None of the cases cited in the dissenting opinion or by
Andrews support a different result in this case. In particular,
none of those decisions held that § 3664(j)(1) was superseded
by § 3663A(b)(2), or that payment of restitution properly
owing under the restitution statute could not be paid directly
to a third party that had already reimbursed the actual victim.
In United States v. Dayea, 73 F.3d 229 (9th Cir. 1995),
after a police officer was killed by a drunken driver, his
widow sought reimbursement for the loss of her husband’s
income and also for her own increased insurance costs.
Though she would qualify as an injured plaintiff in a wrongful
death action, we held that she did not qualify as a “victim” in
this context because she did not personally suffer bodily
injury, as was required by the applicable restitution statute,
the Victim and Witness Protection Act, 18 U.S.C. § 3663.1 Id.
at 230-31. In contrast, the restitution ordered in our case cov-
ers the amount of income lost by the identified victim on
account of his injuries, a proper item for reimbursement.
1
The statute applied in this case to determine the amount of restitution
to be paid, the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A,
was subsequently enacted.
5292 UNITED STATES v. ANDREWS
In United States v. Follet, 269 F.3d 996 (9th Cir. 2001), we
reversed a restitution order that required a defendant con-
victed of sexual abuse of a minor to pay a government-funded
facility for the cost of psychological counseling provided to
the young girl who was the victim of the abuse. The facility
was located on an Indian reservation and provided its services
to eligible clients, including the victim, at no cost to them.
Our decision was based on the specific language of the differ-
ent restitution statute involved there, 18 U.S.C. § 2248(b)(3).
It “provides specifically that only ‘any costs incurred by the
victim’ are subject to restitution orders.” Id. at 1000 (emphasis
in original). The victim did not incur any costs for the coun-
seling, and we held that the applicable statute did not autho-
rize restitution for costs she did not incur, including costs
borne by the facility. Our decision noted that other restitution
provisions used different language and appeared to permit
payment to third parties, however. Id. at 1000-01. As already
noted, there is no doubt in our case that Bershaw’s lost
income is a proper subject for restitution.
United States v. Cliatt, 338 F.3d 1089 (9th Cir. 2003),
addressed the situation suggested but not dealt with in Follet,
that being a restitution order directing that restitution payment
be made directly to a government facility that provided health
care to the victim without charging the victim. The victim in
Cliatt was an active-duty member of the United States Army,
and she was treated in a military hospital for bodily injuries
suffered when she was attacked by the defendant, who was
convicted of voluntary attempted manslaughter. We con-
cluded that the military hospital was entitled to restitution for
the cost of the victim’s case, whether or not the hospital itself
was a “victim,” because the language of section
3663A(b)(2)(A) & (B), quoted above, provided that restitu-
tion must cover “what it costs to care for the victim, whether
or not the victim paid for the care or was obligated to do so,”
and without specifying to whom the payment could be made.
Id. at 1091. The defendant in that case argued that
§ 3664(j)(1) — the statute relied on by us and by the district
UNITED STATES v. ANDREWS 5293
court to support its order requiring Andrews to pay CVCP
directly — should be read to narrow the provisions of
§ 3663A. Specifically, defendant Cliatt argued that the refer-
ence in § 3664(j)(1) to “a victim [who] has received compen-
sation from insurance or any other source with respect to a
loss” meant that the military hospital was not entitled to resti-
tution because the victim did not suffer a “loss,” as she was
provided treatment without charge. Id. at 1092. We rejected
that argument and affirmed the order that the military hospital
be paid restitution.
It was in that context that Cliatt used the language quoted
in the dissenting opinion, at 5300-01, that § 3664 does not
“set[ ] substantive standards for an award of restitution,” and
that “the third-party restitution provisions of § 3664 . . . can-
not trump the substantive restitution provisions found else-
where in the statutes, because § 3664 is only a procedural
mechanism.” Cliatt, 338 F.3d at 1093 (citing Follet, 269 F.3d
at 1000). That language affirmatively supports our conclusion
that the district court may order that restitution be paid
directly to CVCP. We apply § 3663A, “the substantive resti-
tution provision,” to determine the substance — what pay-
ments qualify for restitution. In this case that includes the
income lost by the victim as a result of his bodily injuries.
Then we apply the “procedural mechanism,” § 3664(j)(1), to
authorize the procedure, in this case, ordering payment
directly to CVCP as a third party that already reimbursed the
victim for that lost income. “Procedure” is all we are talking
about here. The dissenting opinion obviously agrees that the
victim is entitled to restitution for his lost income and that
CVCP should wind up with the money by getting back from
the victim what it already paid him. There is no other reason
for it to make the observation that it does in footnote 5. Thus,
there is simply no “substantive” collision here with any other
statute.
The decisions from other courts of appeals relied upon by
the dissenting opinion do not support a different result, either.
5294 UNITED STATES v. ANDREWS
In United States v. Wilcox, 487 F.3d 1163 (8th Cir. 2007),
the requested restitution was denied because the compensa-
tion sought was for the lost income of a person other than the
“victim” of the crime. Defendant was convicted of sexual
abuse of a minor. Reimbursement was sought for the lost
income of the victim’s mother based upon time she took off
from work to care for her child. The Eighth Circuit concluded
that only the child was a “victim” under the statute, so only
the child’s lost income could be the subject of the restitution
order. Id. at 1176-77. In this case, however, the money at
issue is compensation for income lost by the victim, Bershaw,
due to bodily injuries he suffered from defendant’s criminal
conduct. Payment for the victim’s lost income is squarely
authorized by the restitution statute.
The decision of the Seventh Circuit in United States v.
Pawlinski, 374 F.3d 536 (7th Cir. 2004), requires careful
reading because the proposed recipient denied restitution by
the court of appeals was “the Crime Victims Fund,” which
makes it sound more like our case than it really is. That pro-
posed recipient suffered no loss as a result of the crime and,
unlike CVCP in our case, had not reimbursed the actual vic-
tim for any loss. Pawlinski was a Milwaukee alderman who
pleaded guilty to mail fraud for having defrauded contributors
to his campaign fund. He was ordered to pay restitution of
$39,324.03, which he did by depositing it with the district
court. The court then notified contributors that they might be
entitled to reimbursement, but only a few stepped forward,
and their claims amounted to only $1,850. The question
became what to do with the balance. The district court
amended the order of restitution to direct that the money be
paid to the Crime Victims Fund of the U.S. Treasury. 42
U.S.C. § 10601(a). The Seventh Circuit reversed that order,
because the Crime Victims Fund was not a victim of the
crime. Id. at 539. There was no discussion in the opinion of
§ 3664(j)(1) as a basis for permitting restitution to be paid to
the Fund, for the Fund had not reimbursed any actual victims
of Pawlinski’s crime and did not qualify under that provision.
UNITED STATES v. ANDREWS 5295
Nothing in Pawlinski justifies denying the district court in our
case the authority to order that payment be made by Andrews
to the CVCP under § 3664(j)(1), because the CVCP did reim-
burse the victim in our case for his loss.
The recent decision of the Tenth Circuit in United States v.
Speakman, 594 F.3d 1165 (10th Cir. 2010), was essentially
the same as Pawlinski. The defendant in Speakman was a
stockbroker with Merrill Lynch. Without authorization, he
withdrew substantial assets from an account belonging to his
wife. He was convicted of wire fraud and was ordered by the
district court to pay restitution, including $194,205.77 to be
paid to the same federal Crime Victims Fund. That amount
was the loss suffered by the victim, Mrs. Speakman, after sub-
tracting what she had already recovered. Mrs. Speakman
expressly declined further restitution from the defendant, stat-
ing that she did not want to deal with him or be subject to his
emotional abuse, so the district court ordered that payment of
that amount be made to the Crime Victims Fund instead. That
was not because the Fund had paid that amount to Mrs.
Speakman — it had not — but because the district court felt
compelled under the statute to order the defendant to pay res-
titution for the loss, and it identified the Fund as an appropri-
ate substitute recipient. Id. at 1169. Though the statute
authorized a victim to assign her interest in restitution pay-
ments to the Fund, 18 U.S.C. § 3664(g)(2), Mrs. Speakman
did not do so. Id. at 1174-75. Citing Pawlinski, the Tenth Cir-
cuit reversed the restitution order because the restitution stat-
ute did not authorize payment to the Fund. As in Pawlinski,
the court in Speakman did not consider or discuss § 3664(j)(1)
as a basis for permitting the restitution to be paid to the Fund
directly, because that provision did not apply. The Fund had
not paid Mrs. Speakman for her loss. Speakman does not con-
flict with our decision here.
As the district court stated, “had Mr. Bershaw been able to
afford missing work without seeking alternative funds to help
make ends meet, Defendant would be required to reimburse
5296 UNITED STATES v. ANDREWS
Mr. Bershaw under § 3663A(b)(2)(C) for lost income because
Mr. Bershaw is the victim.” It is the income lost by Mr. Ber-
shaw that is, properly, the subject of this restitution order. It
was appropriate, therefore, for the district court to order that
payment of that amount be made directly to CVCP, as
expressly authorized in § 3664(j)(1). If, on remand, the dis-
trict court finds that Bershaw lost income as a result of the
criminal offense by Andrews, it will be appropriate for the
restitution order to provide for payment directly to CVCP, as
long as the order provides that all restitution owing to Ber-
shaw directly be paid to him before any restitution is paid to
CVCP.
ALARCÓN, Senior Circuit Judge, dissenting in part:
I disagree with the my colleagues’ conclusion that restitu-
tion to the CVCP is appropriate here. I would hold that a resti-
tution award for lost income must be paid to the victim of the
crime, not to a third party, pursuant to 18 U.S.C.
§ 3663A(b)(2)(C).
“A restitution order is reviewed for an abuse of discretion,
provided that it is within the bounds of the statutory frame-
work. Factual findings supporting an order of restitution are
reviewed for clear error. The legality of an order of restitution
is reviewed de novo.” United States v. Gordon, 393 F.3d
1044, 1051 (9th Cir. 2004) (quoting United States v. Stod-
dard, 150 F.3d 1140, 1147 (9th Cir. 1998)).
“Federal courts have no inherent power to award restitu-
tion, but may do so only pursuant to statutory authority.”
United States v. Follet, 269 F.3d 996, 998 (9th Cir. 2001) (cit-
ing United States v. Hicks, 997 F.2d 594, 600 (9th Cir. 1993)).
“The courts have such authority under the Victim and Witness
Protection Act of 1982 (“VWPA”), providing for discretion-
ary awards of restitution after conviction for certain crimes,
UNITED STATES v. ANDREWS 5297
18 U.S.C. § 3663, and under the Mandatory Victims Restitu-
tion Act of 1996 (“MVRA”), providing for mandatory restitu-
tion for crimes of violence and property offenses, 18 U.S.C.
§ 3663A.”1 Id.
“ ‘[T]he starting point for interpreting a statute is the lan-
guage of the statute itself.’ ” United States v. Hackett, 311
F.3d 989, 991-92 (9th Cir. 2002) (quoting Consumer Prod.
Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980)). “Absent congressional direction to the contrary,
words in statutes are to be construed according to ‘their ordi-
nary, contemporary, common meaning[s]’ ” Id. (citing Pio-
neer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 388 (1993)).
Section 3663A(a)(1) and (2) provide as follows:
(a)(1) Notwithstanding any other provision of law,
when sentencing a defendant convicted of an offense
described in subsection (c), the court shall order, in
addition to, or in the case of a misdemeanor, in addi-
tion to or in lieu of, any other penalty authorized by
law, that the defendant make restitution to the victim
of the offense or, if the victim is deceased, to the vic-
tim’s estate.
(2) For the purposes of this section, the term “vic-
tim” means a person directly and proximately
harmed as a result of the commission of an offense
for which restitution may be ordered including, in
the case of an offense that involves as an element a
scheme, conspiracy, or pattern of criminal activity,
any person directly harmed by the defendant’s crimi-
1
18 U.S.C. § 3663(b)(2), or the VWPA, and 18 U.S.C. § 3663A(b)(2),
or the MVRA, are nearly identical and “courts interpreting the MVRA
may look to and rely on cases interpreting the VWPA as precedent.” Gor-
don, 393 F.3d at 1048.
5298 UNITED STATES v. ANDREWS
nal conduct in the course of the scheme, conspiracy,
or pattern. In the case of a victim who is under 18
years of age, incompetent, incapacitated, or
deceased, the legal guardian of the victim or repre-
sentative of the victim’s estate, another family mem-
ber, or any other person appointed as suitable by the
court, may assume the victim’s rights under this sec-
tion, but in no event shall the defendant be named as
such representative or guardian.
18 U.S.C. § 3663A(a)(1)-(2). (emphasis added).
Section 3663A(b)(2) provides that in the case of an offense
resulting in bodily injury to a victim the restitution order shall
require that defendant:
(A) pay an amount equal to the cost of necessary
medical and related professional services and
devices relating to physical, psychiatric, and psycho-
logical care, including nonmedical care and treat-
ment rendered in accordance with a method of
healing recognized by the law of the place of treat-
ment;
(B) pay an amount equal to the cost of necessary
physical and occupational therapy and rehabilitation;
and
(C) reimburse the victim for income lost by such
victim as a result of such offense.
18 U.S.C. § 3663A(b)(2)(A)-(C).
Section 3663A(b)(2)(A) and (B) does not specify that resti-
tution must be made to the victim. In Section 3663A(b)(2)(C),
however, Congress has expressly provided that the defendant
shall “reimburse the victim for income lost by such victim as
UNITED STATES v. ANDREWS 5299
a result of such offense.” 18 U.S.C. § 3663A(b)(2)(C)
(emphasis added).
In United States v. Dayea, 73 F.3d 229 (9th Cir. 1995), this
Court held that:
Section 3663(b)(2) limits its own applicability to
cases in which the offense caused a bodily injury to
“a victim.” In such cases, a court may order the
defendant to “reimburse the victim for income lost
by such victim as a result of such offense.” Section
3663(b)(2)(C). This use of the phrase “the victim”
(as opposed, for instance, to “any victim”) indicates
that “the victim” of § 3663(b)(2)(C) must refer to the
same “victim” as the first clause of § 3663(b)(2).
Id. at 231.
As this court previously observed: “[W]ith respect to resti-
tution for wages, Congress required the victim himself or her-
self to show actual losses. There Congress chose the verb
‘reimburse,’ rather than ‘pay,’ and specified that it was the
victim who had to have ‘lost’ the income.” United States v.
Cliatt, 338 F.3d 1089, 1091 (9th Cir. 2003) (citing 18 U.S.C.
§ 3663A(b)(2)(C)). “We must give effect to these distinc-
tions.” Id. “When Congress includes a provision in one part
of a statute but excludes it in another, we deem the difference
intentional and assign meaning to the omission.” Id. (quoting
Solomon v. Interior Reg’l Hous. Auth., 313 F.3d 1194, 1199
(9th Cir. 2002)).
In United States v. Wilcox, 487 F.3d 1163 (8th Cir. 2007),
the Eighth Circuit also interpreted § 3663A(b)(2)(C) to
require that restitution for lost income be awarded to the vic-
tim who was directly harmed by the defendant. Id. at 1176.
The Eighth Circuit reasoned as follows:
While the statute defines “victim” as “a person
directly and proximately harmed as a result of the
5300 UNITED STATES v. ANDREWS
commission of an offense for which restitution may
be ordered,” [ ] § 3663A(a)(2), the subsection con-
cerning reimbursement for lost income refers to a
specific victim: “[I]n the case of an offense resulting
in bodily injury to a victim . . . [the defendant shall]
reimburse the victim for income lost by such victim
as a result of such offense.” 18 U.S.C.
§ 3663A(b)(2)(C) (emphasis added).
Id.
The district court stated that “prohibiting the CVCP from
recovering the monies it paid [ ] Bershaw for his lost income
would eliminate § 3664(j)(1)’s utility[.]”2 The district court’s
reliance on § 3664(j)(1) to require a court to order restitution
for lost wages to a third party that advanced money to the vic-
tim harmed by the defendant is contrary to this Circuit’s deci-
sions in Cliatt and Follet. In Cliatt, this Court held that
§ 3664 does not “set[ ] substantive standards for an award of
restitution.” Cliatt, 338 F.3d at 1093. “ ‘[T]he third-party res-
titution provisions of § 3664 . . . cannot trump’ the substantive
restitution provisions found elsewhere in the statutes, because
§ 3664 is only a procedural mechanism.” Id. (citing Follet,
269 F.3d at 1000). In Follet, we held that Ҥ 3664 establishes
the procedures for ordering restitution, but [ ] that section
does not ‘fix [ ] the substantive boundaries of [restitution]
orders.’ ” Follet, 269 F.3d at 1000 (quoting Hughey v. United
States, 495 U.S. 411, 418 (1990)). “As a consequence, the
2
Section 3664(j)(1) provides as follows:
[I]f a victim has received compensation from insurance or any
other source with respect to a loss, the court shall order that resti-
tution be paid to the person who provided or is obligated to pro-
vide the compensation, but the restitution order shall provide that
all restitution of victims required by the order be paid to the vic-
tims before any restitution is paid to such a provider of compen-
sation.
18 U.S.C. § 3664(j)(1) (emphasis added).
UNITED STATES v. ANDREWS 5301
third-party restitution provisions of § 3664, even if they could
otherwise be read somewhat metaphorically to cover ‘com-
pensation’ to victims in the form of direct services, cannot
trump any substantive limitations contained” in the restitution
statutes. Id.3
In a recent decision, the Tenth Circuit held the plain lan-
guage of the MVRA requires that a district court award resti-
tution to the person directly and proximately harmed by a
defendant’s crime, instead of to the Crime Victims Fund, even
if the victim has renounced her right to receive restitution.
United States v. Speakman, 594 F.3d 1165, 1174-77 (10th Cir.
2010). The Tenth Circuit held “[f]ederal courts possess no
inherent authority to order restitution, and may only do so as
explicitly empowered by statute.” Id. at 1175 (citing United
States v. Nichols, 169 F.3d 1255, 1278 (10th Cir. 1999) and
quoting United States v. Hensley, 91 F.3d 274, 276 (1st Cir.
1996)) (internal quotations omitted). Citing 18 U.S.C.
3
Under Washington law, a victim injured as a result of criminal conduct
must reimburse a third party which has paid benefits to a victim pursuant
to Wash. Rev. Code § 7.68.120. Section 7.68.120 provides as follows:
Any person who has committed a criminal act which resulted in
injury compensated under this chapter may be required to make
reimbursement to the [CVCP] as provided in this section.
(1) Any payment of benefits to or on behalf of a victim under this
chapter creates a debt owing to the department by any person
found to have committed the criminal act in either a civil or crim-
inal court proceeding in which he or she is a party. . . . If, in a
criminal proceeding, a person has been found to have committed
the criminal act that results in the payment of benefits to a victim
and the court in the criminal proceeding does not enter a restitu-
tion order, the department shall, within one year of imposition of
the sentence, petition the court for entry of a restitution order.
Wash. Rev. Code § 7.68.120. The record also shows that Bershaw signed
an agreement to reimburse CVCP for any of the amount of lost income he
might receive from the person that caused his injury. Clearly, to comply
with Wash. Rev. Code § 7.68.120, CVCP should be given notice of pend-
ing restitution proceedings if it has paid benefits to a crime victim.
5302 UNITED STATES v. ANDREWS
§ 3663A(a)(1), it concluded that “restitution is only manda-
tory when ordered to the victim or the victim’s estate[.]” Id.
In reversing the district court’s restitution order, the Tenth
Circuit held that there was “no statutory basis on which a
court could have ordered [the defendant] to pay restitution to
the Crime Victims Fund.” Id. at 1179.
The Seventh Circuit reached a similar result in United
States v. Pawlinski, 374 F.3d 536 (7th Cir. 2004). In Pawlin-
ski, the district court ordered a defendant, who defrauded
campaign contributors, to pay restitution to his victims and
deposit the sum owed in the district court. Id. at 537. The dis-
trict court then notified the defrauded victims that they were
entitled to reimbursement. Id. However, some contributors did
not collect the amount of their loss. Id. Thus, the district court
ordered the unclaimed funds to be paid to the Crime Victims
Fund. Id. The defendant appealed from the order that the
unclaimed balance be awarded to the Crime Victims Fund. Id.
at 538. In reversing the restitution order, the Seventh Circuit
held that “[a]n order of restitution under [the MVRA] . . .
must go to victims of the defendant’s crimes, and the Crime
Victims Fund is neither a victim of Pawlinski nor a represen-
tative of his victims.” Id. at 539.
As in Speakman and Pawlinski, the district court in the
matter sub judice erroneously ordered the defendant to pay
restitution to someone other than to the person directly and
proximately harmed as a result of the commission of an
offense for which restitution may be awarded.
The district court’s decision to require Andrews to reim-
burse the CVCP directly for the amount it ordered in favor of
the victim, has a common sense appeal. Unfortunately, how-
ever, the district court not only lacked the power to do so, it
also violated Congress’s express and unambiguous mandate
that the defendant shall “reimburse the victim for income lost
by such victim.” 18 U.S.C. § 3663A(b)(2)(C). Where, as here,
the language used by Congress is clear and unambiguous, a
UNITED STATES v. ANDREWS 5303
federal court lacks the power to disregard it. If a statute
drafted by Congress unwisely prevents a third party from
being duly reimbursed for money it advanced to the victim of
a crime in a restitution order, the resolution of any perceived
flaw or anomaly in the statute must be presented to Congress,
not to the judicial branch of government. Under the Constitu-
tion, the judicial branch’s role is limited to interpreting the
law, not making it.
In Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978),
the Supreme Court explained that, in engaging in statutory
interpretation,
[o]ur individual appraisal of the wisdom or unwis-
dom of a particular course consciously selected by
Congress is to be put aside in the process of inter-
preting a statute. Once the meaning of an enactment
is discerned and its constitutionality determined, the
judicial process comes to an end. We do not sit as a
committee of review, nor are we vested with the
power to veto. . . . We agree with the Court of
Appeals that in our constitutional system the com-
mitment to the separation of powers is too funda-
mental for us to pre-empt congressional action by
judicially decreeing what accords with ‘common
sense and the public weal.’ Our Constitution vests
such responsibilities in the political branches.
Id. at 194-95.
Accordingly, I am persuaded that it is our duty to apply
§ 3663A(b)(2)(C) and hold that the district court lacked the
authority to award restitution to the CVCP because that entity
did not suffer bodily injury as the result of Andrews’ violent
assault.