Submitted: February 7, 2017
from United States District Court for the District of North
Dakota - Bismarck
LOKEN, COLLOTON, and KELLY, Circuit Judges.
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 court 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.
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).
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, 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.
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.
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
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).
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). 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).
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 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.Copies of the medical bills were included
with the PSR.
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.
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 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
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 ...