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8/10/2019 Government’s publicly filed restitution position paper for Colby Fire
http://slidepdf.com/reader/full/governments-publicly-filed-restitution-position-paper-for-colby-fire 1/33
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ANDRÉ BIROTTE JR.United States AttorneyROBERT E. DUGDALEAssistant United States AttorneyChief, Criminal DivisionJOSEPH O. JOHNS (Cal. Bar No. 144524)Chief, Environmental Crimes Section
AMANDA M. BETTINELLI (Cal. Bar No. 233927)Assistant United States AttorneyEnvironmental Crimes Section1300 United States Courthouse312 North Spring StreetLos Angeles, California 90012Telephone: (213) 894-4536Facsimile: (213) 534-4300E-mail: [email protected]
Attorneys for PlaintiffUNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
CLIFFORD EUGENE HENRY, JR.,
STEVEN ROBERT AGUIRRE, andJONATHAN CARL JARRELL
Defendants.
No. CR 14-55-GW
GOVERNMENT‟S SENTENCING POSITIONREGARDING RESTITUTION; SUPPORTINGEXHIBITS AND DECLARATIONS FILEDUNDER SEAL
Hearing Dates: October 20, 2014Hearing Time: 8:00 a.m.Location: Courtroom of the
Hon. George H. Wu
Plaintiff United States of America, by and through its counsel
of record, the United States Attorney for the Central District of
California and Assistant United States Attorneys Joseph O. Johns and
Amanda M. Bettinelli, hereby files its Sentencing Position Regarding
Restitution. The supporting exhibits and declarations have been
filed separately under seal.
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This request is based upon the attached memorandum of points
and authorities, the files and records in this case, and such
further evidence and argument as the Court may permit.
Dated: October 16, 2014 Respectfully submitted,
ANDRÉ BIROTTE JR.United States Attorney
ROBERT E. DUGDALEAssistant United States AttorneyChief, Criminal Division
/s/JOSEPH O. JOHNSAssistant United States Attorney
Chief, Environmental Crimes SectionAttorneys for PlaintiffUNITED STATES OF AMERICA
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MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
A. THE GOVERNMENT’S POSITION
Defendants CLIFFORD EUGENE HENRY, JR., STEVEN ROBERT AGUIRRE,
and JONATHAN CARL JARRELL (“defendants”) were each convicted of
Count One of the Amended Indictment, which alleged a violation of 18
U.S.C. § 1855 -- Setting Timber Afire, among other related
misdemeanor violations. The Mandatory Victim Restitution Act of
1996 (“MVRA”) requires a district court judge to order restitution
for victim losses that are the direct result of crimes that
constitute offenses against property. Section 1855 is an offense
against property, and as such, this Court must order restitution for
all victim losses directly resulting from defendants‟ conduct. This
includes those losses that are a natural result of defendants
criminal conduct, those losses that would not have occurred if the
defendants had acted lawfully (by not starting an illegal campfire),
and even those losses that are “one step removed” from defendants‟
criminal conduct. The government must prove victim losses to this
Court by a preponderance of the evidence.
B.
THE DEFENDANTS’ POSITION
All three defendants take the position that the determination
of restitution under the MVRA in this case is “impracticable”
because the number of identifiable victims is too large. See Def.
Jarrell‟s Position Regarding Sentencing, page 29, Court Doc. 293;
see Def. Aguirre‟s Position Regarding Sentencing, page 8, Court Doc.
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301; and see Def. Henry‟s Sentencing Position, pages 18-19, Court
Doc. 299. In response, the government submits that the
determination of appropriate restitution in this case is not
impracticable, but rather, just difficult and time consuming.
Because the United States Probation Office did not have sufficient
time and resources to conduct a complete MVRA restitution
determination in the time permitted, the USAO has undertaken the
difficult task of contacting and coordinating with the victims and
their insurers, and collecting and collating documentation of the
damages recoverable under the MVRA – within the time period allowed
by this Court.
Defendant Jarrell further contends that the majority of the
damages and costs incurred by the victims are impermissible
consequential damages, and that defendant has had an insufficient
opportunity to challenge the evidence of damages/costs or provide an
alternative loss calculation. Defendant Jarrell‟s consequential
damages argument is addressed in more detail below. Defendant
Jarrell‟s claim of “insufficient opportunity” to respond to the
government‟s restitution request has been ameliorated by the nearly
three months that have elapsed since the government first filed such
evidence and defendant first raised such claim. See Government‟s
Combined Position Regarding Presentence Report and Sentencing
Position for Defendant Jonathan Carl Jarrell and Exhibits Filed in
Supported Thereof, Court Doc. 292 filed on 7/23/14 (and all related
manual filings under seal, namely, Court Docs. 295, 296, 207, 304,
314, 315, 318, and 321); and see Government‟s Request to Bifurcate
and Continue Defendants‟ Restitution Hearings, Court Doc. 305 filed
on 7/30/14. Moreover, if defendants require additional time to
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review and respond to this supplemental restitution submission and
related filings, the government does not oppose a continuance of the
October 20, 2014 restitution hearing date to afford such
opportunity.
Finally, defendant Henry argues that applicability of the MVRA
in this case turns upon his subjective intent and whether or not he
“intended” to commit a crime against property. This contention is
addressed in detail below.
II. APPLICABLE LAW AND ARGUMENT
A. THE MANDATORY VICTIM RESTITUTION ACT
A district court may not order a defendant to pay restitution
to the victims of his crime unless authorized by statute to do so.
United States v. Andrews, 600 F.3d 1167, 1172 (9th Cir. 2010);
United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007).
The two primary restitution statutes in the federal justice system
are the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. §§
3663-3664, and the Mandatory Victim Restitution Act of 1982
(“MVRA”), 18 U.S.C. §§ 3663A. The VWPA authorizes restitution in
connection with a number of offenses, primarily violations of Title
18 of the United States Code, while the MVRA requires restitution
for certain crimes involving violence, fraud and deceit, and
offenses against property. Restitution under the VWPA is
discretionary. Restitution under the MVRA is mandatory. The
government submits that the MVRA mandates an order of full
restitution to the victims of defendants‟ crime of Setting Timber
Afire, in violation of 18 U.S.C. § 1855.
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1. The primary goal of the MVRA is to make victims ofcrime whole
The primary and overarching goal of the MVRA is to makevictims of crime whole. In achieving this objective,Congress intended district courts to engage in anexpedient and reasonable restitution process, with
uncertainties resolved with a view toward achievingfairness to the victim.
United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004).
Congress‟s stated intent behind the MVRA is to force offenders to
“pay full restitution to the identifiable victims of their crimes”
for the purpose of accomplishing the following objectives: (1)
ensuring that the loss to crime victims is recognized; (2) ensuring
that victims receive the restitution that they are due; and (3)
ensuring that criminal offenders realize the damage caused by their
offenses and pay the debts they owe to their victims as well as to
society. See United States v. Cienfuegos, 462 F.3d 1160, 1165 (9th
Cir. 2006), quoting Senate Report No. 104-179, at 12 (1996), as
reprinted in 1996 U.S.C.C.A.N. 924, 925. The government submits
that in seeking to ensure full restitution to the victims of an
offense, a district court should be guided by the remedial purposes
underlying the MVRA and flexible in accounting for the victims‟
complete losses. See Gordon, supra, 393 F.3d at 1053.
2. A violation of 18 U.S.C. § 1855 is an “offenseagainst property” for purposes of the MVRA
The MVRA mandates that a district court order restitution in
crimes involving offenses against property under Title 18 of the
United States Code, such as 18 U.S.C. § 1855. See 18 U.S.C. §
3663A(c)(1)(A)(ii); see also United States v. Barton, 366 F.3d 1160,
1166 (10th Cir. 2004). Defendant Jarrell concedes that violations
of Section 1855 are a crime involving an offense against property
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for purposes of the MVRA. See Def. Jarrell‟s Position Regarding
Sentencing, page 29, Court Doc. 293. Defendant Aguirre takes no
position, at this time, with respect to this issue. See Def.
Aguirre‟s Position Regarding Sentencing, page 8, Court Doc. 301.
Defendant Henry, on the other hand, seems to argue that
applicability of the MVRA in this case turns upon his subjective
intent and whether or not he “intended” to commit a crime against
property. See Def. Henry‟s Sentencing Position, pages 18-19, Court
Doc. 299. Beyond the simple argument, defendant Henry provides no
statutory or legal support for his position – nor is government
counsel able to find any statutory or legal basis to support such
position.
In point of fact, in a case strikingly similar to that before
this Court, the Tenth Circuit Court of Appeals noted as a
preliminary matter that, “[i]t is uncontroverted that … [the
defendant] pled guilty to an „offense against property,‟ i.e.,
setting fire to inflammable materials on federal property ….” Id.
at 1166. The Tenth Circuit‟s analysis was silent regarding the
defendant‟s subjective intent in committing the Section 1855
offense. Given the obvious purpose of Section 1855, to prevent
accidental and intentional wildfires and the devastating
consequences of such fires, the government contends that the
defendants‟ convictions for 18 U.S.C. § 1855 [Setting Timber Afire]
as charged in Count One of the Amended Indictment constitutes an
offense against property for purposes of mandatory restitution under
the MVRA.1
1 The Tenth Circuit decision in Barton comports with theunpublished Ninth Circuit Court of Appeals decision in United Statesv. Butcher, previously referenced by this Court during trial for
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3. Definition of Victim
After determining that the MVRA is applicable to the offense of
conviction, the district court should begin by identifying the
victims of the defendants‟ conduct. United States v. Frazier, 651
F.3d 899, 903 (8th Cir. 2011). The MVRA defines the term “victim”
as “a person directly and proximately harmed as a result of the
commission of an offense for which restitution may be ordered,
including an “offense against property.” See 18 U.S.C. §
3663A(a)(2). There are several categories of victims that were
directly and proximately harmed as a result of defendants‟ criminal
offense.
a. The United States Forest Service is a victim
The United States Forest Service (“USFS”) was directly and
proximately harmed as a result of defendants‟ commission of an
offense against property, Setting Timber Afire, in violation of 18
U.S.C. § 1855. Not only did the USFS suffer burned and destroyed
forest acreage, but it also suffered substantial fire suppressionand response costs, post-fire evaluation and stabilization costs to
prevent further damage to forest lands and to protect human health
and safety, and significant mud flow and sediment removal costs. It
is clear that the federal government can be a “victim” under the
MVRA. United States v. Quarrell, 310 F.3d 664, 677 (9th Cir. 2002);
see also United States v. De la Fuente, 353 F.3d 766, 772-773 (9th
Cir. 2003) (United States Postal Service is an MVRA victim for
another legal issue, which held that restitution for firesuppression costs were appropriately ordered in a Section 1855offense. See 377 Fed. Appx. 628, 629 (9th Cir. 2010). As with theTenth Circuit‟s Barton analysis, the Ninth Circuit was not concernedwith defendant‟s “subjective intent” in committing the Section 1855analysis, but rather, with the objective “causal chain” connectingdefendant‟s criminal offense and the fire suppression costs.
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purposes of lost employee work hours and evacuation costs associated
with anthrax letter mailing). In fact, the federal government has
specifically been held to be a victim under the MVRA for the purpose
of determining the amount of restitution owed for losses caused by a
resulting forest fire started in violation of 18 U.S.C. § 1855. See
Barton, supra, 366 F.3d at 1167; see also United States v. Butcher,
377 Fed. Appx. 628, 629 (9th Cir. 2010).
b. Local government agencies are victims
Los Angeles County, the City of Azusa, and the City of Glendora
were directly and proximately harmed as a result of defendants‟
commission of an offense against property, Setting Timber Afire, in
violation of 18 U.S.C. § 1855. The Cities of Azusa and Glendora
initially suffered losses in responding to the fire by evacuating
neighborhood residents in harm‟s way, setting up an incident command
center, and providing material support to firefighting personnel.
Later, both cities incurred further losses in mitigating and
repairing erosion and mud flow damages caused by rainfall in the
burned areas. The Los Angeles County Fire Department suffered
losses in responding to, and suppressing, the actively burning fire.
Later, the Los Angeles County Department of Public Works suffered
losses in mitigating and repairing erosion and mud flow damages
caused by rainfall upon the burned and de-vegetated forests.
The Ninth Circuit Court of Appeals has already held that local
emergency response agencies are proper MVRA victims for purposes of
responding to a criminal anthrax hoax and conducting cleanup and
decontamination efforts as a result of that criminal hoax. See De
La Fuente, supra, 353 F.3d at 768 and 773. In fact, district courts
have regularly awarded restitution for cleanup and remediation costs
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resulting from a defendant‟s criminal conduct. Brock-Davis, supra,
504 F.3d at 1000.
c.
Owners of damaged or destroyed homes
More than a dozen local residents were directly and proximately
harmed when their homes suffered smoke or fire damage as the result
of defendants‟ commission of an offense against property, Setting
Timber Afire, in violation of 18 U.S.C. § 1855. In addition, a
number of insurance companies also suffered losses as the result of
the residential smoke and fire damages they reimbursed (or
compensated) to their insureds as the result of defendants‟ offense.
“Under the MVRA, the district court must award restitution for „any
offense … against property under [United States Code Title 18] … in
which an identifiable victim suffered a physical injury or pecuniary
loss.” United States v. Burks, 678 F.3d 1190, 1198 (10th Cir.
2012), quoting 18 U.S.C. § 3663A(c)(1). Under the MVRA, both the
owner of the property damaged by defendants‟ offense, and the
property owner‟s insurance company, are identifiable victims
requiring mandatory restitution. See e.g., id. [under the MVRA, the
owner of a stolen vehicle is entitled to restitution for the
insurance deductible paid and the insurance company is entitled to
restitution for the cost of replacing the vehicle]. If the victim
“has received compensation from insurance 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
compensation.” United States v. Frazier, 651 F.3d 899, 905 (8th
Cir. 2011).
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d. Fire Evacuees
Thousands of local residents were directly and proximately
harmed when they were forced to evacuate their homes and flee for
their lives as the result of defendants‟ commission of an offense
against property, Setting Timber Afire, in violation of 18 U.S.C. §
1855. A victim‟s evacuation costs directly and proximately caused
by a defendant‟s criminal offense are appropriate restitution under
the MVRA. See De La Fuente, supra at 768 and 773 (United States
Postal Service entitled to restitution under MVRA for evacuation
costs resulting from criminal anthrax letter hoax).
4.
Restitution is limited by a victim‟s actual losses
Under the MVRA, restitution is limited to a victim‟s actual
losses. United States v. Fu Sheng Kuo, 620 F.3d 1158, 1164 (9th
Cir. 2010). “[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., quoting, United States v.
Bussell, 504 F.3d 956, 964 (9th Cir. 2007), cert. denied, -U.S.-,
129 S.Ct 40, 172 L.Ed.2d 20 (2008). Actual losses include expenses
necessary to repair damage caused by the defendant‟s criminal
conduct. See United States v. Sablan, 92 F.3d 865, 870 (9th Cir.
1996). The Ninth Circuit has even “approved restitution awards that
included losses at least one step removed from the offense conduct
itself.” See United States v. Gamma Tech Industries, Inc., 265 F.3d
917, 927 (9th Cir. 2001). The key consideration for this Court is
to ensure that the loss “causal chain” does “not extend so far, in
terms of the facts or the time span, as to become unreasonable.”
Butcher, supra, 377 Fed.Appx. at 629, quoting, Gamma Tech, supra,
265 F.3d at 928. The Eleventh Circuit has recognized that a
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victim‟s actual losses include those losses that are a “natural
result” of the defendant‟s criminal conduct. See United States v.
Vaghela, 169 F.3d 729, 736 (11th Cir. 1999).
In the case before this Court, defendants were convicted of
starting an illegal campfire, in violation of 18 U.S.C. § 1855,
which escaped their control and resulted in the massive Colby Fire.
Victim “losses” that directly resulted from the defendants‟ criminal
conduct include, among others, (1) fire suppression costs, (2) law
enforcement evacuation and policing costs,2 (3) fire-related damage
to private and public properties and structures, (4) expenses
related to mandatory evacuations to save human life, (5) mud flow
and erosion prevention and control costs, and (6) mud flow and
erosion damages to private and public properties, flood control
basins, and structures. None of these resulting losses would have
occurred had defendants “acted lawfully.” See Bussell, supra, 504
F.3d at 964. A devastating forest fire is a predictable “natural
result” of the setting of an illegal campfire in dangerous weather
and drought conditions. See Vaghela, supra, 169 F.3d at 736.
a. Intervening causation
A post-criminal offense, intervening cause that leads to victim
damages or losses does not prevent an order of restitution under the
MVRA. Rather, “[t]he main inquiry for causation in restitution
cases becomes whether there was an intervening cause and, if so,
whether this intervening cause was directly related to the offense
conduct.” Brock-Davis, supra, 504 F.3d at 1000, quoting United
2 Fieldwork performed by a United States Forest Service Officeras part of the survey and restoration process in response toarcheological theft offense is properly included in calculation ofvictim losses. See Quarrell, supra at 681.
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States v. Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999). In this
case, defendants set an illegal campfire, which escaped their
control to cause the devastating Colby Fire. All of the victims‟
damages and losses, for which the government seeks restitution in
this case, are a direct and foreseeable result of the defendants‟
illegal conduct. See Brock-Davis, supra at 1000 (“[a] cleanup and
decontamination effort conducted by local emergency response
agencies … was a necessary and foreseeable result of [defendant‟s]
offense conduct” and that “[n]o independent intervening cause
[could] be blamed for the [agencies‟] loss”)(citations and
highlights omitted). The government proved at trial that all three
defendants were aware of the devastating wildfire danger that their
illegal campfire presented. See Attachment 1, transcript excerpts
of defendant Henry‟s video and audio-recorded post-arrest statements
admitted into evidence as Gov. Exs. 32 and 51; see Attachment 2,
transcript excerpts of defendant Aguirre‟s video and audio-recorded
post-arrest statements admitted into evidence as Gov. Ex. 36 and 54;
and see Attachment 3, transcript excerpts of defendant Jarrell‟s
video and audio-recorded post-arrest statements admitted into
evidence as Gov. Ex. 28. In other words, the resulting wildfire and
its attendant losses and damages were not only foreseeable by the
defendants, but they were actually foreseen and discussed by the
defendants prior to setting the illegal campfire.
Even the subsequent erosion and mud flow damages caused when an
“intervening rain” fell upon the fire-damaged hillsides were the
result of an intervening cause (rainfall) directly related to the
offense conduct (fire-damaged hillsides that could no longer absorb
rain). As such, the government‟s restitution request for erosion
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and mud flow damages cannot be said to be an unreasonable extension
of the causal chain, in terms of the facts or the time span of
events. See id., quoting Gamma Tech, supra at 928.
b.
Consequential damages
Defendant Jarrell contends that fire suppression costs are
impermissible consequential damages, and should therefore not be
awarded under the MVRA. See Def. Jarrell‟s Position Regarding
Sentencing, page 29, Court Doc. 293. In support of his contention,
defendant Jarrell cites to the unpublished Fourth Circuit United
States v. Sprouse opinion, as well as the Third Circuit United
States v. Simmonds opinion. 58 Fed.Appx. 985; 235 F.3d 826.
Neither decision is useful here – Sprouse is not binding precedent
for this Court and is not consistent with existing Ninth Circuit
cases – and Simmonds is distinguishable on its facts.
In Sprouse, the Fourth Circuit concluded that fire suppression
costs were not recoverable as restitution following a Section 1855
conviction because the panel was “not convinced that fire
suppression costs are analogous to costs for repair and replacement
of equipment” damaged during commission of a criminal offense.
Sprouse, supra, 58 Fed.Appx. at 990. In sharp contrast to the
Fourth Circuit‟s Sprouse decision, the Ninth Circuit has noted that
the statutory language of the MVRA (18 U.S.C. § 3663A(b)(1)) is not
“easy to apply where property is rendered temporarily unusable,
rather than completely destroyed or permanently damaged.” De La
Fuente, supra at 773-774, including fn. 6. In such situations, the
Ninth Circuit agreed with the Third Circuit‟s conclusion that the
MVRA must be interpreted to require a defendant to pay restitution
for repair, cleanup, and remediation costs incurred by a victim to
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restore the damaged property to the “same condition as just prior to
the time it became unusable.” Id., quoting United States v.
Quillen, 335 F.3d 219, 222 (3d Cir. 2003). Both the De La Fuente
and Quillen decisions involved restitution for costs incurred during
the incident response, cleanup, and remediation of United States
Postal Service mail rooms exposed to fake anthrax. De La Fuente,
supra at 773; Quillen, supra at 226.
In the instant case, it is axiomatic that “but for” defendants‟
actions in setting the illegal campfire during a dry, dangerous
period of fire restrictions, the United States Forest Service and
Los Angeles County Fire Department would not have deployed
firefighting assets to suppress the raging Colby Fire that directly
resulted from defendants‟ conduct. The victims would not have spent
millions of dollars in direct costs to suppress the resulting fire,
and would not have spent millions of dollars to prevent and cleanup
erosion and mud flow damage. Defendant Jarrell‟s assertion that the
majority of the victim losses and damages cannot be included in a
restitution order because they can be characterized as
“consequential damages” is thus misplaced. The appropriate inquiry
is whether these losses directly resulted from defendants‟ criminal
activity.
Moreover, and if for no other reason, the government submits
that fire suppression costs are mandatory MVRA restitution because
the property damaged by defendants‟ offense, the forest, was not
“useable” until the resulting Colby Fire was put out. A forest set
ablaze is no more useable than a mail room contaminated with
anthrax. See also, Brock-Davis, supra at 1001 [remediation and
cleanup costs for motel room contaminated by illegal methamphetamine
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lab was proper MVRA restitution because decontamination was required
before motel room could be used again]. As such, fire suppression
costs do not constitute impermissible consequential damages.
In Simmonds, the Third Circuit properly rejected an MVRA
restitution claim for a victim‟s homeowner insurance “clean renewal
discount” following fire damage to a house resulting from an arson
offense. While the Third Circuit did permit MVRA restitution for
the costs of furniture damaged by the arson fire, it denied the
victim‟s restitution claim for increased insurance premiums
resulting from the insurance claim for damages from the arson fire.
Not only are the Simmonds facts far removed, and therefore
distinguishable, from the case at hand, but the government also
agrees that such restitution for the “clean renewal or no claim
discount” is too highly attenuated to justify mandatory restitution
under the MVRA. See 235 F.3d at 832-833.
c. Investigatory costs are not recoverable
The government does not seek restitution for investigatory
costs associated with this case. Such costs are “routinely incurred
by the government for the procurement of evidence.” United States
v. Menza, 137 F.3d 533, 539 (7th Cir. 1998). Investigation and
prosecution costs “are not direct losses relating to the defendant‟s
criminal conduct which can be recovered” as restitution. Id.
5.
Defendant‟s ability to pay restitution mandated by
the MVRA is irrelevant
When restitution is mandated by the MVRA, it is immaterial
whether or not a defendant has the ability to pay the restitution
ordered by the district court. 18 U.S.C. § 3663A(a)(1); see United
States v. Grice, supra, 319 F.3d at 1177.
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6. Disputed losses are to be resolved by the Court by apreponderance of the evidence
The government has the burden of proving victim losses to this
Court by a preponderance of the evidence. Quarrell, supra, 310 F.3d
at 678, 681.
7. The Court may order multiple defendants to be jointlyand severally liable for restitution payments
Where more than one defendant is responsible for the loss of a
victim, “the court may make each defendant liable for payment of the
full amount of restitution or may apportion liability among the
defendants to reflect the level of contribution to the victim‟s loss
and economic circumstances of each defendant.” Id. at 678. In this
case, the government requests that the Court order each of the three
defendants in this case to be jointly and severally liable for
restitution to each of the victims (and in the amounts) determined
by this Court.
III. SUMMARY OF ACTUAL VICTIM LOSSES
A.
RESTITUTION TO THE UNITED STATES FOREST SERVICE
1.
Fire suppression costs
On July 23, 2014, the government submitted the United States
Forest Service‟s (“USFS”) Colby Fire Transaction Register Summary
Report detailing all fire suppression costs incurred by the USFS,
current as of July 18, 2014, along with the Declaration of USFS
Financial Analyst Jane Packer. See Court Docs. 292-53 and 304
(signed declaration). As of July 18, 2014, the USFS fire
suppression costs for the Colby Fire totaled $4,289,890.97. The
3 The Transaction Register Summary Report was labeled as ExhibitE to the Government‟s Combined Position Re: Presentence Report andSentencing Position for Defendant Jonathan Carl Jarrell (Court Doc.292). For consistency, the government will label the new filingsnext in order for Court Doc. 292, beginning with Exhibit P.
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Declaration of Jane Packer explained in detail her methodology for
collecting, collating, and tabulating the USFS fire suppression
costs.
Contemporaneous with this restitution position, the government
has filed a new USFS Colby Fire Transaction Register Summary Report,
current as of September 8, 2014, and updated Declaration of Jane
Packer. See Exhibit 1 to this filing, manually filed under seal.
As of September 8, 2014, the USFS fire suppression costs for the
Colby Fire had increased slightly to a new total of $4,375,325.67.
As indicated at ¶3 of Ms. Packer‟s Declaration, the government
anticipates that the total USFS fire suppression costs will increase
by an additional $3,000,000 once all invoices are received and paid.
To avoid further delay in this matter, the government only seeks
restitution for USFS fire suppression costs in the amount current as
of September 8, 2014: $4,375,325.67.
B. RESTITUTION TO THE CITY OF AZUSA
1.
Costs for response to the Colby Fire
John Momot, Administrative Captain for the City of Azusa Police
Department, is responsible for determining Police Department and
City costs for responses to major events and disasters, both natural
and manmade. See Declaration of Captain John Momot, Court Doc. 304-
1, page 38, ¶1. Captain Momot was assigned the task of determining
the City of Azusa‟s Police Department response costs and fire damage
mitigation costs for the Colby Fire. See Decl. Capt. Momot, ¶2.
Based upon his review of Azusa Police Department payroll records, he
determined the police officer overtime costs for the fire response
to be $35,389.00. See Decl. Capt. Momot, ¶3.
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2. Costs for mitigation of fire damage
Based upon his review of City of Azusa Department of Public
Works payroll and business records, Captain Momot determined the
City employee overtime costs and structural mitigation costs to be
$70,309.00. See Decl. Capt. Momot, ¶4. On this basis, the
government requests that the Court order defendants to pay a total
amount of restitution to the City of Azusa in the amount of
$105,698.00.
C. RESTITUTION TO THE CITY OF GLENDORA
1.
Costs for response to the Colby Fire
James Caldwell, City of Glendora Emergency Services Coordinator
(“ESC”), is responsible for overseeing the City‟s Emergency Services
Operations, training, and information gathering – including costs
related to emergency responses. See Declaration of James Caldwell,
Court Doc. 304-1, pages 7-9, ¶1. ESC Caldwell was assigned the task
of determining the City‟s response costs to the Colby Fire and
response costs to the Winter Storm event of February 28 through
March 5, 2014, that followed the Colby Fire. See Decl. Caldwell,
¶¶2&4. Based on ESC Caldwell‟s review of City of Glendora payroll
and business records, he determined the Colby Fire response costs to
be $48,385.02. See Decl. Caldwell, page 8 of Court Doc. 304-1.
2. Winter Storm Mud and debris flow prevention anddamage costs
ESC Caldwell further determined the Winter Storm response costs
and damages to be $654,776.00. See Decl. Caldwell, and attached
worksheet at page 9 of Court Doc. 304-1. On this basis, the
government requests that the Court order defendants to pay a total
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amount of restitution to the City of Glendora in the amount of
$703,161.02.
D. RESTITUTION TO THE LOS ANGELES COUNTY FIRE DEPARTMENT
1.
Fire suppression costs
Debby Prouty, Assistant Chief for Financial Management of the
Los Angeles County Fire Department (“LACFD”) was assigned the task
of determining the LACFD‟s fire suppression costs for the Colby
Fire. See Declaration of Asst. Chief Debby Prouty, Court Doc. 304-
1, pages 42-44, ¶¶1-2. Based upon her review of LACFD business
records, which include written information provided by LACFD
employees assigned to work on the Colby Fire which was approved by
each employee‟s supervisor and official time record for each
employee, Asst. Chief Prouty determined the LACFD‟s Colby Fire
suppression costs to be $3,031,338.97. See Decl. Asst. Chief
Prouty, page 42, ¶¶3-4. $1,180,117.67 of these costs are
recoverable from the USFS based upon cooperative fire management
agreements. See Decl. Asst. Chief Prouty, page 43, ¶5. The LACFD‟s
non-recoverable Colby Fire suppression costs are $1,851,221.30. See
Decl. Asst. Chief Prouty, page 42, ¶6, and page 43 attached
worksheet. On this basis, the government requests that the Court
order defendants to pay a total amount of restitution to the LACFD
in the amount of $1,851,221.30.
E. RESTITUTION TO THE LOS ANGELES COUNTY DEPARTMENT OF PUBLIC WORKS
1. Current debris flow mitigation costs
Kenneth Rickard, Civil Engineer for the Los Angeles Department
of Public Works (“LACDPW”), was assigned the task of determining the
LACDPW‟s response and damage mitigation costs associated with the
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Colby Fire. Mr. Rickard is the unit head of the LACDPW‟s Sediment
management and Debris Development Section of Water Resources
Division. He is responsible for mapping the boundaries of fires
that occur in Los Angeles County, calculating the increased debris
production potential form burned and partially burned canyons,
supervising projects to mitigate increased debris flows,
coordinating with affected cities on measures they can take to
mitigate mudflows, and offering advice to residents on how they can
protect their properties from the increased debris flows. See
Declaration of Kenneth Rickard, Court Doc. 304-1, pages 48-51, ¶1.
Based upon his review of LACDPW‟s business records, Mr. Rickard
determined that the LACDPW‟s costs for mitigating increased mud and
debris flows caused by the Colby Fire burn damage to area canyons is
$312,005.06 as of July 15, 2014. Mr. Rickard anticipates the
expenditure of an additional $250,000 this Fall to design and
construct and additional debris flow barrier. That cost is not
included in this restitution request. See Decl. Rickard, ¶2-3.
2. Removal of post-fire debris from basins
Based upon his review of LACDPW‟s business records, Mr. Rickard
further determined that the LACDPW‟s costs for removal of 17,946
cubic yards of sediment from four debris basins in the Colby Fire
area (to prepare for massive post-fire, storm-related mud flows) to
be $736,838.70. See Decl. Rickard, ¶3.
3.
Removal of mud flow debris from basins
Based upon his review of LACDPW‟s business records, Mr. Rickard
further determined that the LACDPW‟s costs for removal of 67,764
cubic yards of post-fire, storm-related sediment from five debris
basins in the Colby Fire area to be $1,950,576.91. Mr. Rickard
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2. 1078 North Glendora Avenue, Glendora, CA – Owners“W.J & E.J.”
Victims “W.J & E.J.s‟” home at 1078 North Glendora Avenue was
damaged/destroyed during the Colby Fire. See Exhibit 3 to this
filing, manually filed under seal, page 2, Letter of Vice President
of Claims, Estee C. Natale. The California FAIR Plan Association
paid “W.J & E.J.” a total amount of $245,143.00 in compensation for
their damaged home and belongings. See Ex. 3, page 2. As a result
of these payments, California FAIR Plan Association is a victim in
this matter. The government requests that the Court order
defendants to pay a total amount of restitution to the California
FAIR Plan Association in the amount of $245,143.00 for Claim No.
531338.
3.
1135 North Glendora Avenue, Glendora, CA – Owners“G.P. & L.P.”
Victims “G.P. & L.P.s‟” home at 1135 North Glendora Avenue was
destroyed during the Colby Fire. See Exhibit 4 to this filing,
manually filed under seal, page 2, Letter of Vice President of
Claims, Estee C. Natale. The California FAIR Plan Association paid
“G.P. & L.P.” a total amount of $596,232.33 in compensation for
their destroyed home and belongings. See Ex. 4, pages 2-4. As a
result of these payments, California FAIR Plan Association is a
victim in this matter. The government requests that the Court order
defendants to pay a total amount of restitution to the California
FAIR Plan Association in the amount of $596,232.33 for Claim No.
531339.
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4. 951 North Glendora Avenue, Glendora, CA – Owner“B.A.”
Victim “B.A.‟s” home at 951 North Glendora Avenue was damaged
during the Colby Fire. See Exhibit 5 to this filing, manually filed
under seal, page 2, Letter of Vice President of Claims, Estee C.
Natale. The California FAIR Plan Association paid “B.A.” a total
amount of $175,470.50 in compensation for the damaged home and
belongings. See Ex. 5, pages 2-4. As a result of these payments,
California FAIR Plan Association is a victim in this matter. The
government requests that the Court order defendants to pay a total
amount of restitution to the California FAIR Plan Association in the
amount of $175,470.50 for Claim No. 531342.
5.
957 Easley Canyon Road, Glendora, CA – Owner “S.O.”
Victim “S.O.‟s” home at 957 Easley Canyon Road was damaged
during the Colby Fire. See Exhibit 6 to this filing, manually filed
under seal, page 2, Letter of Vice President of Claims, Estee C.
Natale. The California FAIR Plan Association paid “S.O.” a total
amount of $32,634.43 in compensation for the damaged home. See Ex.
6, page 2-3. As a result of these payments, California FAIR Plan
Association is a victim in this matter. The government requests
that the Court order defendants to pay a total amount of restitution
to the California FAIR Plan Association in the amount of $32,634.43
for Claim No. 531352.
6.
1167 Englewild Drive, Glendora, CA – Owner “S.J.”
Victim “S.J.‟s” home at 1167 Englewild Drive was damaged during
the Colby Fire. See Exhibit 7 to this filing, manually filed under
seal, page 2, Letter of Vice President of Claims, Estee C. Natale.
The California FAIR Plan Association paid “S.J.” a total amount of
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$16,290.58 in compensation for the damaged home. See Ex. 7, pages
2-4. As a result of these payments, California FAIR Plan
Association is a victim in this matter. The government requests
that the Court order defendants to pay a total amount of restitution
to the California FAIR Plan Association in the amount of $16,290.58
for Claim No. 531353.
7. 1154 North Glendora Avenue, Glendora, CA – Owners“R.J. & S.J.”
Victims “R.J. & S.J.s‟” home at 1154 North Glendora Avenue was
destroyed during the Colby Fire. See Exhibit 8 to this filing,
manually filed under seal, pages 5-9, Copy of Claim Payment Checkand supporting documentation. The QBE First Insurance Agency, Inc.
paid “R.J. & S.J.” a total amount of $410,811.00 in compensation for
their destroyed home and belongings. See Ex. 8, pages 5-9. As a
result of these payments, QBE First Insurance Agency, Inc. is a
victim in this matter. The government requests that the Court order
defendants to pay a total amount of restitution to the QBE First
Insurance Agency, Inc. in the amount of $410,811.00 for Claim No.
L14002096.
G. RESTITUTION FOR HOMES WITH SMOKE DAMAGE
1.
312 East Hurst Street, Covina, CA – Owner “Y.M.”
Victim “Y.M.‟s” home at 312 East Hurst Street was smoke-damaged
during the Colby Fire. See Exhibit 9 to this filing, manually filed
under seal, page 2 plus supporting documentation, Letter of Sue
Pruett. The California Casualty Indemnity Exchange paid a total
amount of $1,695.84 for damages to the home. See Ex. 9, page 2. As
a result of these payments, California Casualty Indemnity Exchange
is a victim in this matter. The government requests that the Court
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order defendants to pay a total amount of restitution to the
California Casualty Indemnity Exchange in the amount of $1,695.84
for Claim No. 50000251685.
2.
1833 Mirador Avenue, Azusa, CA – Owner “J.R.”
Victim “J.R.‟s” home at 1833 Mirador Avenue was smoke-damaged
during the Colby Fire. See Exhibit 10 to this filing, manually
filed under seal, page 2 plus supporting documentation, Letter of
Jenifer Ashcraft. The California Casualty Indemnity Exchange paid a
total amount of $2,011.82 for damages to the home. See Ex. 10, page
2. As a result of these payments, California Casualty Indemnity
Exchange is a victim in this matter. The government requests that
the Court order defendants to pay a total amount of restitution to
the California Casualty Indemnity Exchange in the amount of
$2,011.82 for Claim No. 50000247407.
3.
1837 Forest Drive, Azusa, CA – Owner “R.Q.”
Victim “R.Q.‟s” residence at 1837 Forest Drive was smoke-
damaged during the Colby Fire. See Exhibit 11 to this filing,
manually filed under seal, pages 2-4 plus supporting documentation,
Letter of Eleni Saranteas. The California Casualty Indemnity
Exchange paid a total amount of $2,514.34 for damages to the home.
See Ex. 11, page 3. As a result of these payments, California
Casualty Indemnity Exchange is a victim in this matter. The
government requests that the Court order defendants to pay a total
amount of restitution to the California Casualty Indemnity Exchange
in the amount of $2,514.34 for Claim No. 50000244987.
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4. 767 West Virginia Ann Drive, Azusa, CA – Owner“M.S.B.”
Victim “M.S.B.‟s” residence at 767 West Virginia Ann Drive was
smoke-damaged during the Colby Fire. See Exhibit 12 to this filing,
manually filed under seal, pages 2-4 plus supporting documentation,
Letter of Jenifer Ashcraft. The California Casualty Indemnity
Exchange paid a total amount of $2,495.84 for damages to the home.
See Ex. 12, pages 2-3. As a result of these payments, California
Casualty Indemnity Exchange is a victim in this matter. The
government requests that the Court order defendants to pay a total
amount of restitution to the California Casualty Indemnity Exchange
in the amount of $2,495.84 for Claim No. 50000253528.
5.
156 North Vernon Avenue, Azusa, CA – Owner “D.D.”
Victim “D.D.‟s” residence at 156 North Vernon Avenue was smoke-
damaged during the Colby Fire. See Exhibit 13 to this filing,
manually filed under seal, pages 2-4 plus supporting documentation,
Letter of Jenifer Ashcraft. The California Casualty Indemnity
Exchange paid a total amount of $3,221.88 for damages to the home.
See Ex. 13, pages 2-4. As a result of these payments, California
Casualty Indemnity Exchange is a victim in this matter. The
government requests that the Court order defendants to pay a total
amount of restitution to the California Casualty Indemnity Exchange
in the amount of $3,221.88 for Claim No. 50000261476.
6.
1170 Easley Canyon Road, Glendora, CA – Owner “M.W.”
Victim “M.W.‟s” residence at 1170 Easley Canyon Road, Glendora
was smoke-damaged during the Colby Fire. See Exhibit 14 to this
filing, manually filed under seal, pages 2-3 plus supporting
documentation, Letter of Vice President of Claims, Estee C. Natale.
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The California FAIR Plan Association paid a total amount of
$21,590.19 for damages to the home. See Ex. 14, pages 2-3. As a
result of these payments, California FAIR Plan Association is a
victim in this matter. The government requests that the Court order
defendants to pay a total amount of restitution to the California
FAIR Plan Association in the amount of $21,590.19 for Claim No.
531362.
H. RESTITUTION FOR DESTRUCTION OF VEHICLE
1. Honda Goldwing Motorcycle – Owner “G.P.”
Victim “G.P.‟s” Honda Goldwing Motorcycle was destroyed when
his home burned down during the Colby Fire. See Exhibit 15 to this
filing, manually filed under seal, pages 1 & 7, Letter of Stacey
Johnson; and see Section F.3. above. The Farmers Insurance Exchange
paid a total amount of $27,016.65 for destruction of the vehicle.
See Ex. 15, page 7. As a result of this payment, Farmers Insurance
Exchange is a victim in this matter. The government requests that
the Court order defendants to pay a total amount of restitution to
the Farmers Insurance Exchange in the amount of $27,016.65 for Claim
No. 8003297978-1.
I. RESTITUTION FOR EVACUATION AND MUD FLOW COSTS
1.
833 North Rainbow Drive, Glendora, CA -- Victim“E.A.”
Victim “E.A.” was evacuated from his home during the Winter
Storm event following the Colby Fire, between the dates of February
27, 2014 and March 2, 2014. Many residents were forced by local
officials to evacuate due to anticipated mud and debris flows coming
out of canyons and hillsides burned by the Colby Fire. As a result,
he incurred $909.23 in damages for lodging, food, gas, medical
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supplies, and labor and materials to protect his home from mud
flows. See Declaration of E.A., Court Doc. 321, pages 1-2 of
Exhibit O of Government‟s Combined Position Re: Presentence Report
and Sentencing Position for Defendant Jonathan Carl Jarrell (Court
Doc. 292); see also Statement of E.A. and attached receipts, Court
Doc. 315, pages 1-12 of Exhibit I of Government‟s Combined Position
Re: Presentence Report and Sentencing Position for Defendant
Jonathan Carl Jarrell (Court Doc. 292). The government requests
that the Court order defendants to pay a total amount of restitution
to victim “E.A.” in the amount of $909.23.
2.
21 Poppyglen Court, Azusa, CA – Victims “V.B. & R.B.”
Victims “V.B. & R.B.” were forced to evacuate their home as the
result of the Colby Fire. As a result, they incurred unanticipated
costs for gas/mileage and groceries in the amount of $196.83. See
Declaration of R.B., Court Doc. 321, page 15 of Exhibit O of
Government‟s Combined Position Re: Presentence Report and Sentencing
Position for Defendant Jonathan Carl Jarrell (Court Doc. 292); see
also Statement of V.B. and R.B. and attached receipts, Court Doc.
315, pages 17-22 of Exhibit I of Government‟s Combined Position Re:
Presentence Report and Sentencing Position for Defendant Jonathan
Carl Jarrell (Court Doc. 292). The government requests that the
Court order defendants to pay a total amount of restitution to
victims “V.B. & R.B.” in the amount of $196.83.
3.
Victims “F.B. & E.B.”
Victims “F.B. & E.B.” were forced to evacuate their home as the
result of the Colby Fire. As a result, they incurred unanticipated
costs for lodging, meals, and personal protective gear (mask and
respirator) in the amount of $409.19. See Declaration of F.B.,
8/10/2019 Government’s publicly filed restitution position paper for Colby Fire
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8/10/2019 Government’s publicly filed restitution position paper for Colby Fire
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Presentence Report and Sentencing Position for Defendant Jonathan
Carl Jarrell (Court Doc. 292). The evacuation was very hard on
“M.M.M.” and she suffered greatly from the smoke inhalation and lost
ground rapidly thereafter – until her death on or about February 25,
2014. From the first night of the evacuation, until her demise, she
was forced into full-time hospice care. Her insurance did not cover
the difference between the partial care and full-time hospice care.
“But for” defendants‟ criminal offense that caused the Colby Fire,
“M.M.M.” might still be alive, and would not have been forced into
full-time hospice care on January 16, 2014. See id. The
additional, unreimbursed costs for full-time hospice care for
“M.M.M.” are as follows:
Time Period Unreimbursed Costs
1/16/14 – 1/18/14 $432.19
1/19/14 – 1/25/14 $2,506.37
1/26/14 – 2/1/14 $2,511.60
2/2/14 – 2/8/14 $2,511.60
2/9/14 – 2/15/14 $2,433.04
2/16/14 – 2/22/14 $2,511.60
2/23/14 – 2/25/14 $966.41
TOTAL RESTITUTION $13,872.81
The government requests that the Court order defendants to pay a
total amount of restitution to the Estate of Victim “M.M.M.” in the
amount of $13,872.81.
6. 265 Windsong Court, Azusa, CA – Victims “L.M. & G.M.”
Victims “L.M. & G.M.” were forced to evacuate their home as the
result of the Colby Fire. As a result, they incurred unanticipated
costs for food and lodging in the amount of $209.10. See
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http://slidepdf.com/reader/full/governments-publicly-filed-restitution-position-paper-for-colby-fire 32/33
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Declaration of L.M., Exhibit 17 to this filing, filed separately
under seal; see also Statement of L.M. and G.M. and attached
receipts, Court Doc. 315, pages 171-175 of Exhibit I of Government‟s
Combined Position Re: Presentence Report and Sentencing Position for
Defendant Jonathan Carl Jarrell (Court Doc. 292). The government
requests that the Court order defendants to pay a total amount of
restitution to victims “L.M. & G.M.” in the amount of $209.10.
7. 28 Sandstone Way, Azusa, CA – Victims “H.M. & S.M.”
Victims “H.M. & S.M.” were forced to evacuate their home as the
result of the Colby Fire. As a result, they incurred unanticipated
costs for food, lodging, work clothes, and a hearing aid lost during
the stressful evacuation in the amount of $3,262.68. See
Declaration of S.M., Exhibit 18 to this filing, filed separately
under seal; see also Statement of H.M. & S.M. and attached receipts,
Court Doc. 315, pages 176-182 of Exhibit I of Government‟s Combined
Position Re: Presentence Report and Sentencing Position for
Defendant Jonathan Carl Jarrell (Court Doc. 292). The government
requests that the Court order defendants to pay a total amount of
restitution to victims “H.M. & S.M.” in the amount of $3,262.68.
8. 22 Moonridge Court, Azusa, CA – Victim “J.V.”
Victim “J.V.” was forced to evacuate his home as the result of
the Colby Fire. As a result, he incurred unanticipated costs for
food and lodging during the evacuation in the amount of $356.42.
See Declaration of J.V. and attached receipts, Court Doc. 315, pages
263-273 of Exhibit I of Government‟s Combined Position Re:
Presentence Report and Sentencing Position for Defendant Jonathan
Carl Jarrell (Court Doc. 292). The government requests that the
8/10/2019 Government’s publicly filed restitution position paper for Colby Fire
http://slidepdf.com/reader/full/governments-publicly-filed-restitution-position-paper-for-colby-fire 33/33
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Court order defendants to pay a total amount of restitution to
victim “J.V.” in the amount of $356.42.
IV. CONCLUSION
In conclusion, the government respectfully requests that the
Court issue an order of restitution to the victims listed above, in
the amounts set forth above, in the order of payment set forth in a
separate Proposed Restitution Order (to be filed by government
counsel). The government submits that the restitution amounts set
forth above, and in the related filings, are losses directly and
proximately caused by defendants‟ offense – and that such loss
amounts have been proven by a preponderance of the evidence.