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United States v. Takai

United States District Court, D. Utah

January 2, 2018



          Clark Waddoups United States District Judge

         The United States has moved the court for an order of restitution against Defendant Siosaia Takai under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, in the amount of $209, 672.16. (ECF No. 126.)


         On May 21, 2013, Mr. Takai pled guilty to two Hobbs Act robberies and one count of discharging a firearm during and in relation to a crime of violence. (ECF Nos. 108, 112.) Mr. Takai signed an 11(c)(1)(C) at this time acknowledging “the Court will determine at sentencing the final amount of restitution I must pay; or later if ordered by the court.” (ECF No. 112, p. 5.) On August 20, 2013, the court sentenced Mr. Takai to 240 months Bureau of Prisons custody followed by 60 months supervised release. (ECF No. 118.) The court reserved imposition of restitution at that time. (See id.) On August 23, 2013, the court entered judgment in this case, reserving restitution for 60 days. (ECF No. 119, p. 5.)

         Over three years later, on November 9, 2016, the United States filed a sealed Motion to Enter Restitution. (ECF No. 126.) After a substitution of defense counsel, Mr. Takai objected to the Motion on the grounds that the government had not identified the proper victim under the MVRA and that the court reserved restitution for 60 days from the date of the judgment and otherwise complied with the procedures for issuing restitution orders under 18 U.S.C. § 3664, and thus the government's belated request should be denied. (See ECF No. 132.) Mr. Takai cited section 3664(d)(5), which states:

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. If the victim subsequently discovers further losses, the victim shall have 60 days after discovery of those losses in which to petition the court for an amended restitution order. Such order may be granted only upon a showing of good cause for the failure to include such losses in the initial claim for restitutionary relief.

18 U.S.C. § 3664(d)(5).

         On February 27, 2017, the court heard argument from the parties and took the Motion under advisement. This order follows.


         Under the MVRA, the sentencing court must award restitution for “any offense that is a crime of violence [under 18 U.S.C. § 16] . . . [or] an offense against property under [United States Code Title 18] . . . in which an identifiable victim or victims has suffered a physical injury or pecuniary loss.” 18 U.S.C. § 3663A(c)(1). The parties do not dispute that Mr. Takai's Hobbs Act robbery convictions fall within the scope of this provision for mandatory restitution. Thus, the court turns to analyze (1) whether it retains authority to enter restitution at this late juncture and (2) whether the entity the government identified, Broadspire Insurance, constitutes a “victim” under the MVRA.

         As to the first issue, the Supreme Court has held that “[a] sentencing court that misses the 90-day deadline nonetheless retains the power to order restitution-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.” Dolan v. United States, 560 U.S. 605, 608 (2010). This is because “the Act's efforts to secure speedy determination of restitution is primarily designed to help victims of crime secure prompt restitution rather than to provide defendants with certainty as to the amount of their liability.” Id. at 613. Thus, “[e]ven in the unlikely instances where that delay does cause the defendant prejudice-perhaps by depriving him of evidence to rebut the claimed restitution amount-the defendant remains free to ask the court to take that fact into account upon review. That inquiry might also consider the reason for the delay and the party responsible for its cause, i.e., whether the Government or the victim.” Id. at 617.

         Though Dolan's language does not address the instance where a court reserves restitution for a specified amount of time, as here, the court finds that Dolan's rationale applies with equal force to this situation. Restitution is mandatory under the MVRA. The court clearly reserved the imposition of restitution at the sentencing, prior to the 90-day deadline, leaving open only the amount. See Dolan, 560 U.S. at 608. When Mr. Takai pled guilty to the offenses here, he agreed that restitution was appropriate and would be ordered by the court at a later date.

         While the court is concerned by the government's extraordinarily late request to enter restitution in this case--and the government provides no excuse for the lateness other than its own oversight in submitting the restitution request--the court finds the law clearly supports an imposition of restitution when a court reserves it for a later date, even where the court had articulated a specific period of time in which it would reserve restitution or where restitution is ultimately ordered after considerable delay. Other courts applying Dolan's reasoning have upheld restitution orders in such circumstances. See United States v. Rodriguez, 751 F.3d 1244, 1260-61 (11th Cir. 2014) (finding Dolan's reasoning supported a district court's authority to impose restitution more than ninety days after sentencing and affirming a restitution order entered more than two years after sentencing because the defendant had not shown prejudice and had contributed to the delay); United States v. Zaic, 744 F.3d 1040, 1042-44 (8th Cir. 2014) (finding the district court could impose restitution after the ninety-day deadline under Dolan and affirming the additional imposition of restitution 133 days after sentencing because the defendant had not shown any prejudice); United States v. Fu Sheng Kuo, 620 F.3d 1158, 1162-63 (9th Cir. 2010) (affirming a district court's order of restitution after the 90-day deadline, even though the court had indicated the restitution motion should be filed within the statutory period, because “the district court's statements regarding restitution ‘made clear' to the parties, before the deadline expired, that it would order restitution; accordingly, the court ‘retained the power to order restitution'” (quoting Dolan, 560 U.S. at 608)).

         Mr. Takai has not marshalled any evidence of prejudice from this late-ordered restitution, besides counsel's suggestion at the motion hearing that Mr. Takai might not have understood that restitution could still be ordered after the 60-day period, and so he might be under an impression that he does not have to pay restitution. This contention falls far short of showing prejudice from the order of restitution now, especially because restitution was clearly agreed to in the plea agreement and reserved at sentencing. The court ...

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