United States District Court, D. Arizona
ORDER
HONORABLE STEVEN P. LOGAN UNITED STATES DISTRICT JUDGE.
The
Government has moved for the imposition of restitution
pursuant to the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, against
Defendant Elijah Loren Arthur, Sr. (Doc. 271) Oral argument
was held on July 19, 2016, and the Court issued an Order
(Doc. 283) (the “Restitution Order”) on July 20,
2016 requiring the Defendant to pay restitution in the amount
of $565, 923 to Jair Cabrera's estate. The Defendant
appealed the Restitution Order (Doc. 285), and the Court of
Appeals for the Ninth Circuit remanded the Restitution Order
for “recalculation on an open record” and further
consideration of “whether a consumption offset is
necessary concerning the officer's projected lost
income”. (Doc. 303-1 at 5) On May 7, 2019, oral
argument was held on the Government's Motion for
Restitution. (Doc. 306)
Restitution
in this case is mandatory under the MVRA. 18 U.S.C. §
3663A(a)(1), (c)(1)(A)(I) (“the court shall order . . .
that the defendant make restitution to the victim of the
offense” for “a crime of violence.”). If,
as here, the victim of the crime of violence is deceased,
restitution must be ordered to the victim's estate. 18
U.S.C. § 3663A(a)(1). Restitution includes the future
lost income of the murder victim. United States v.
Cienfuegos, 462 F.3d 1160, 1164-65 (9th Cir. 2006). The
restitution in this case shall be equal to the amount of the
future lost income of the victim, based on reasonable
assumptions concerning the victim's future earnings,
minus other compensation received.
Here,
the Government engaged a Certified Public Accountant, who is
certified in Financial Forensics by the American Institute of
CPAs, to prepare a report calculating the estimated lost
earning capacity of the victim. (Doc. 306 at 3) The
information contained therein provides sufficient and
competent evidence from which to determine an appropriate
amount of restitution in this case. 18 U.S.C. §§
3663, 3664; Cienfuegos, 462 F.3d at 1161 (future
lost income must be “reasonably calculable, ” and
not speculative). The Court adopts Tim Tribe's most
conservative finding assuming 0% salary growth and no
overtime, for a starting restitution amount of $780, 923.
(Doc. 306 at 3)
The
Government requests for the Court to apply a consumption
offset to a restitution award. The Government recommends
applying a consumption offset of $466, 992 to a restitution
award, which would leave the Defendant liable for the
remaining $313, 931. The Defendant agrees with the
Government's argument that a consumption offset should be
applied to a restitution award. (Doc. 309 at 1-2)
At the
hearing before the Court on July 19, 2016, the Victim's
parents stated that they received approximately $360, 000
from insurance payouts after Victim's death. (Doc. 306-2
at 39) The Government argues that the money received by the
Victim's parents should not count against a restitution
award because the money was given to the Victim's parents
in their individual capacities and not to the Victim's
estate. (Doc. 306 at 5) While the Defendant points out that
the Victim's parents have received approximately $360,
000 in life insurance payments and $35, 000 in donations
since the Victim's death, the Defendant takes no position
on the Government's argument that these amounts should
not count against a restitution award. (Doc. 309 at 2)
The
Court will apply a consumption offset as requested by the
Government in the amount of $466, 992. No. additional offsets
will be applied to the restitution award. Therefore, the
Court will order Defendant to pay restitution in the amount
of $313, 931.
It is
the Court's understanding that the Defendant currently
has two sources of income: his quarterly per capita payments
from the Salt River Pima-Maricopa Indian Community and from
prison employment. Defendant has children and has been
ordered to pay child support in the amount of $2, 400 per
quarter. The Salt River Pima-Maricopa Indian Community
currently deducts this amount from Defendant's quarterly
checks and sends the remainder to Defendant. These child
support payments will continue to be deducted from the per
capita checks and the remainder of the money will go toward
restitution in this case.
Accordingly,
IT IS ORDERED:
1. That Defendant must pay restitution in the amount of $313,
931 to Jair Cabrera's estate;
2. That child support will be deducted from Defendant's
quarterly per capita payments prior to deductions under this
Order until the children reach the age of majority;
3. That the remainder of the quarterly per capita payments
will go to satisfy this judgment; and
4. That the Clerk of Court issue an amended Judgment in a
Criminal Case to include the terms of restitution and release
the garnished funds being held pursuant to ...