Upper Marlboro, Maryland — In a July 26, 2019, published decision entitled In re: Carlos Brown, No. 18-1527, which resulted from an appellate mandamus petition filed on behalf of a client victim by the Maryland Crime Victims’ Resource Center, the Fourth Circuit granted the MCVRC mandamus request and put limits on federal trial court judges’ decisions to refuse victim’s restitution requests entirely, as occurred here, because the judges would rather not deal with restitution.
After the victim sought appellate review of the entire denial by the sentencing court of the victim’s restitution request, the defense initially challenged the victim’s right to go right from the federal magistrate’s misdemeanor court by mandamus directly to the court of appeals, arguing that any such victim complaint must first go to the district court that handles felonies and appointed the magistrate judge. The court of appeals disagreed and after analyzing many of the federal magistrate statutes, stated (slip op. 13-14):
…we conclude that a magistrate court is included within the term “district court” under [18 U.S.C.] § 3771(d)(3). * * * We see no basis, sub silentio, to draw such a distinction [between the magistrate and district courts] in the absence of a specific direction from Congress. To do so would create the absurd result that under § 3771(d)(3), a crime victim could petition from the denial of restitution if a district judge made the determination but could not do so if a magistrate judge made the same decision.
[Defendant] Boone’s reading requires that when a magistrate judge declines to award restitution pursuant to § 636(a) and § 3401 in a petty offense case, a victim cannot exercise his statutory rights under § 3771(d)(3) to seek appellate review of that decision. Boone points to no legal authority other than her tortured interpretation of § 3771(d)(3), which effectively negates the specific rights of crime victims guaranteed by the CVRA. Construing the statutes as Boone proposes directly contradicts Congress’ express, unambiguous intent that regardless of whether the underlying offense is a petty offense, “[t]he crime victim or the crime victim’s lawful representative [as well as] the attorney for the Government may assert” the rights to restitution provided under § 3771. § 3771(d)(1).
Then, after finding proper jurisdiction for the victim’s mandamus petition, the appeals court held that the magistrate judge abused its discretion when it ordered no restitution at all, stating, slip op.18-19:
While the court found certain facts relating to each of the statutory factors—the victim’s need for restitution and the burden imposed on the sentencing court—it failed to articulate how it balanced those factors to determine that restitution was unwarranted. By failing to do so, the court violated its duty under § 3663(a)(1)(B)(ii) to expressly weigh: the burden of adjudicating the restitution issue against the desirability of immediate restitution—or otherwise stated, a weighing of the burden that would be imposed on the court by adjudicating restitution in the criminal case against the burden that would be imposed on the victim by leaving him or her to other available legal remedies. United States v. Kones, 77 F.3d 66, 68–69 (3d Cir. 1996). Put another way, the court abused its discretion by failing to state why the burden of complexity or delay in sentencing outweighed Brown’s need for restitution. This abuse of discretion harmed Brown because he received none of the requested restitution to which he may be entitled under the VWPA. Accordingly, we grant the petition for mandamus, thereby vacating the order denying restitution, and remand the case for the magistrate judge to conduct and explain on the record its balancing analysis in determining whether to award restitution.
This requirement, that a court denying restitution “explain on the record its balancing analysis” means that courts cannot hide behind any philosophical or pragmatic scheduling opposition to getting into the subject of restitution in a criminal case. In this case, the victim purposely forewent his complex insured medical expense losses and confined his request simply to his past lost wages request supported by his tax return, a doctor’s letter, and his own testimony, thereby making “the burden that calculating restitution would place on the sentencing process” (slip op. 20) almost inconsequential. Even so, the magistrate judge refused to order any restitution because it was a contested issue, stating “[T]his is misdemeanor court. This court generally does not deal with restitution, and if we are going to deal with restitution, it is not in this amount [i.e. $20,000). * * * We are contested here, and that is why this is just so not the forum to be dealing with these kinds of figures.” (Slip op. 6). That blanket excuse is no longer valid in federal court in Maryland.
The court also stated that the availability of alternative civil remedies “is merely one factor for the court to balance and should not be the controlling factor in and of itself. Rather, the ‘primary consideration’ of the complexity exception [which exception the defense routinely invokes] ‘is the burden that calculating restitution would place on the sentencing process.'” (slip op. 20). Previously, this sentencing judge, as the court itself admitted, rarely if even ordered restitution for victims. Now that MCVRC has shined a light on this court’s failure to do its job, simplified restitution requests, like the one submitted here by MCVRC on behalf of this victim, have a much higher likelihood of being granted.