of evidence is necessary under the mandatory victim restitution act to establish an actual compensable loss that answer is informed in this case by taking a step back and looking at the proceedings that happened below in two thousand and seventeen mr clawson pled guilty to two counts federal offenses one was assault of a federal officer the other was destruction of an aircraft those were related to shooting a helicopter that was hovering about one hundred dollars or two hundred feet over his property a few days after he pled guilty the district court held an evidentiary hearing and at that hearing the goal of the hearing for the most part was to determine whether or not there was enough evidence to institute an official victim and handsome and under the sentencing guidelines in about five pages of transcript or in that hearing this is the june th hearing two thousand and seventeen starting at page fifty three the government a deuced evidence from customs and border patrol aviation maintenance officer named john clarke and he testified that there was damage to the helicopter which we already knew that was the basis for the charge that the damage had to be repaired that it took some parts to repair the damage and that to repair the cockpit of the fuselage that another crew that wasn't based in the grand forks aviation office had to come over and help with that from montana after that happened a couple months later as is typical a pre sentence report was repaired prepared and in that pre sentence report paragraph fourteen summarized in a small box that had four components to it what the potential damage in a restitution may have been in this case seven thousand one hundred and ninety five dollars for man hours ten thousand one hundred and thirty four dollars for parts one thousand seven hundred and eighty nine dollars for travel expenses and then a straight five hundred dollars for overtime and of stoppie confused me on timing you've got the p s r coming months after the sentencing hearing no your honor no thank you for allowing me to clarify that his sense of hearing that would be very i'd be here on a different issue if that was the case in iran before the sentencing hearing the sentencing hearing happened in november i say i was not trial counsel in this case i suspect that because of the difficulty of having witnesses appear that perhaps that the reason for having the evidentiary hearing so quickly after the change of plea hearing all of this happened in our duluth courthouse at the time the end incidentally is that i haven't added these figures up but is the total set forth in the p s r as that is that the figure that eventually was ordered his restitution the math adds up your honor yes that's the figure that was that was ordered for restitution and then was there an objection to the that part of the p s r there was no objection to that part of the the p s r and i want to address that it in really two ways one is by indicating that at the time that the preliminary and final p came out there was also no request for restitution from the government the p s r itself makes that clear so so to the question of whether there was an objection the objection would have been  of no moment really the other issue with the objecting but i thought the sentencing hearing there was reference to and there was a truck court said there will be represented to shoot at the change of plea hearing that's true i thought at the sentencing hearing also now at the sentencing hearing at the sentencing hearing what happened was that the court and again we're we're bound by the record that we have which on page thirteen and fourteen of the sentencing hearing transcript is the best evidence of what happened with regard to restitution the court indicates that it's holding a sheet from probation indicating ten million one thousand some dollars worth of restitution we're awaiting and then asks whether defense counsel is seen that she defense counsel answer is no and then the court indicates that it's going to give additional time for verification of those amounts and for a defense counsel an opportunity to investigate back i mean agreement there's no doubt i mean from paragraph fourteen in the p s r it was obvious the defense that restitution was going to be sought in one that's a i think that's a fair and as a minister court seemed to interpret it that way at sentencing when he said yes to no have you seen these numbers and so forth and i'm going to give you some time to challenge and refute didn't rip up you know with i think that's a i think that's a fair interpretation or rather i don't disagree with that interpretation it's also fair to acknowledge that the district court itself was going to give additional time to determine whether or not those figures were correct because as we know from the many cases of this court that summary alone that would not be suspicion for a court to order restitution because the mandatory victim restitution act requires there to be actual loss compensation only so in cases from this court  sent back to the district court because the district court of appeals couldn't tell whether there was a one thousand four hundred dollars bill for work that was compensable or work that was just everyday work of the lab techs that were involved in that case procedural stuff as well in your time and your kind of painting procedural error here it seems to me the district court handling of this was completely consistent with no in time slips don't really explore refute the numbers that the government was going to be seeking yes your honor i mean i understand the government might have might have have sort of blindsided the defense with  coming in later with twice the requesting twice the amount that was in the p s r but that didn't happen no that's that's correct we have clarke's testimony as as as gloss were input for the numbers in the not precise so let me go do so i think you had yeah i'd like to hear what you'd say about why given the defenses failure having adequate time to refute and not having placing in the record a few affirmative counter evidence why did the government fall short of its burden and that's why i suggest that the issue properly framed is what quality and hype of evidence is before the court mr clawson was not required to go come back with any evidence saying well five hundred dollars for overtime is kind of specious because you know you need didn't need not pay overtime in this case at all it's up to the government in the st instance to prove by a preponderance of the evidence that there is evidence here and here would be hanging that nothing nothing short of the time records would have been sufficient corroboration of the overtime claimed some itemization your honor not not the time records precisely was that preserved i mean some item is ation how is the court told that you know i you know i don't have anything to counter that but it's not any good your honor in our letters that we sent to the court post sentencing some four months five months after sentencing that were sent and i'm i recognize that i'm out of time i'll just finish my point that were sent to the district court post sentencing regarding restitution in there includ please the court counsel good morning your honor state again or comey have the government before turning to the whether the district committed clear air in concluding by a preponderance of the evidence that the restitution amount was justified just because he would like to touch on the jurisdictional procedural issue briefed in the case and alluded to by judge i was in argued this morning why are you thoroughly briefed why why do we have to spend our time listening to  counter to an argument that was made we've got on the briefs that response i want to make respectfully around it with respect to an argument made in the reply brief which was that the record was ambiguous about whether the district court left the record open for the benefit of the defendant or rather i had inferred some obligation for the government there was an argued this morning and then i mean that's not it's not substance not substantial ok fair enough you're out of then with respect to the with respect to the nature of the evidence the court has is accurately summarized the record in its questioning of mr might go the plea agreement specified that the defendant would be expected to pay mandatory restitution at the change of plea hearing the mandatory restitution obligation was noted as part of the palette with the fountain at the evidence tree hearing including the filings before the evidentiary hearing the government noticed its intent to a deuce of a tense with respect to the damage done to the helicopter and the defense indicated in its entry hearing motion that anderson it understood that evidence with respect to damage would be the subject of the evidentiary hearing in the p s r the mandatory restitution obligation was noted the amounts were itemized the government would submit with precision down to the penny with respect to the hours of labor at the parts and the travel the overtime was the only amount that was was and at the sentencing hearing the government again reiterated its request for the ten million one thousand over ten million one thousand dollars in restitution the district court at sentencing indicated that mandatory restitution would be ordered leaving only open the amount as to restitution all of those certainly satisfy the notice requirement dolan but also make it clear that restitution was very much before both the defendant and the court at all material times with respect to the nature and quality evidence to a group defense counsel that this court has taken issue with restitution evidentiary showing said are limited to sort of general invoices that are submitted only on  explain the nature of the damage and the nature of the repairs and respectfully the evidence that the evidence you're hearing exceeded sort of the minimized diversion that was discussed earlier this morning by by mr maaco the witness the aviation mechanic or her supervisor did indicate the nature of the damage that the oil system was damaged that the door was damaged that the wiring had to be remanufactured because it could not merely be  replaced that a team had to be flown in from another location that the parts had to be flown in from overseas based on the defect that the manufacture of the helicopter was at least in part french and i think there were some texas texas interstate parts as well so the evidence that the evidentiary hearing was specific with respect to the nature of the damage and the aviation official was asked and how much did it cost to repair the helicopter and the invoices or receipts the defendant certainly had a fair opportunity to challenge the witness's testimony both with respect to the scope of repairs and his summary of the damage amount and  record here both under this court's precedent which does require more than general invoices and with respect to the specific evidentiary showings and submissions of the parties below which was clearly in the government's view sufficient to allow this court to affirm clearly given the standard to review that the court would have to find that the district court clearly erred in concluding that by a preponderance of the evidence it was more likely than not that the government had sustained one million nine hundred thousand six hundred labor costs can be can be recovered yes or by government agency so the question the question whether these internal labor costs were unreasonable unnecessary the more than suggesting in this brief that the evidence was clear that these were government employees and i say that because in the evidence or hearing transcript which is a district court docket number one hundred and six page fifty four mr clark testifies that actually the work done in this case was by government contractors he states that they were government contractors working on the government aircraft under haile selassie and otherwise it's the government's position that whether it was a government contractor who was employed to make the repair or a full time government employee who is a salaried employee of the u s government is irrelevant as a legal matter i did want to clarify that with respect to the evidentiary record government contractor is referenced by mr clarke as having performed the repairs and i think that maybe you can fight factually over whether the government's choice to do it internally or by contract with reasonable and certainly i agree with you it's legally irrelevant if the repairs were necessary and how you how you get it done can be challenged but not the need to get it done certainly and that could have been a subject of challenge either for cross examination during the ninety plus days period it was left open or frankly the defendant could ask for additional process below with respect to prejudice or otherwise none of which the defendant did hear unless the court had any further questions i'd dress the remainder of the government's argument on the briefs you'd put in for a whole new helicopter it would be a different issue your honor that the manpower cost here which man hours is house and heard in the record if you do the division is twenty seven dollars an and frankly the government surprised that the restitution amount for shooting a rifle through a government helicopter and disabling a number of systems is one thousand dollars it's no small amount for anyone but i don't think o let me address st the idea that it was certainly mr clawson could have done additional investigative work himself he could have further cross examined mr clarke he could have called his own witnesses but that's not really the question that's not the perfect perfect way of looking at it and we submit again the cases from this court established that the small summary chart we have and the five pages of testimony from an aviation services officer were just not sufficient in this case consistent with this court's precedent appropriate remedy at this court agrees is to remit it to the district court for a more robust evidentiary hearing on this matter