good morning your honor as i'm victor stone i represent crime victim in this case carlos brown he petition to this court and the court ordered full briefing in this argument  because the federal restitution laws and crime victims laws which what amplified in two thousand and four specifically and specifically require that courts ensure crime victims are afforded their rights which includes full and timely restitution as provided in law did not happen in this case  the legislative history of the two thousand and four act states and we quoted it nor brief pages thirty five to thirty six that the existing restitution laws were to be made more effective and  the poor treatment of crime victims was being rectified part of the reason for that is as a practical matter you won't find any long line of cases dealing with crime victims who successfully sued the perpetrator of the crime and the reason you won't find those cases is cause for the most part the victims have been hurt then like my clients don't have the money to fund private lawsuits the lawyers as also was reflected in the transcript below don't want to take the cases especially when they see a defendant who's going to jail or as in this case is represented by a public defender because they don't see any likelihood they going to wind up getting a contingency fee that's going to make sense for them since you've appealed the decision from below on it utilises exactly as you can what you say the district court did wrong here yes your honor well what was presented for restitution civil what was a very simplified request also taking into account realistically the assets of the defendant so what the victim did was came in an made a simple request unsaid i've been in the hospital after six with six operations i have metal rods and plates of my body and i'm in all kinds of pain submitted an affidavit from himself is caretaker his mother testified he testified he gave a statement to the co what he had nothing david from his doctor and he said i haven't been able to work from the date of that criminal injury up till today and at a minimum i think i'm entitled under the statute to my lost wages although there was some discussion of that ultimately in the transcript of the i'm sorry in the transcript but in the joint appendix of page one twenty six the judge accepted  that the victim had been unable to work from the time he was injured right up to the time of the restitution hearing and then what the how much when the victim  then esther has lost wages which he calculated based on his submitted sworn tax return of three hundred sixty six dollars a week for the forty two and a half weeks that up to the date of the hearing and it came out to about fifteen thousand dollars i may have to answer both parts of that don't expect question or asked in the first part the fact that two attorneys in this is in the record turn down the victim when he want to file a civil suit we're not interested i think  reflects the fact that if anybody might have been interested it might have been the insurance companies that paid the half a million dollars worth of medical expenses not the victim and whether insurance companies want to file that would have helped the victim i think that what what my colleague and i think it's a fair question asked you is do you think that you have an entitlement as a matter of right to this and surely don't because the district court  judge here has discretion right yes your honor and a so in saying that the district court abused its discretion in you not just telling us that you're man and frankly as i read the record it sounds like pretty sympathetic case is entitled to this money what you i think your argument must be is that the district court didn't give that argument fair consideration to look at all the facts under the statute is that right well it's a little more n rights as well as the judge him self recognized that terminations about what those rights are correct your honor and those rights are in thirty six sixty four thirty six sixty four a required the pre sentence report writer in the probation department to provide the judge with the restitution determination that was sufficient and he did he got affidavits any provided you know your problem well  got that far but the judge said in his written ruling without ordering the probation officer to go back for more data without referring the issue to a special master without  would then just consider whether there was an abuse of discretion but you say the abuses here is that he didn't do that that's right he didn't follow the procedures your honor if i was saying before saying relying on an old seven circuit case that says future lost income and judge picked this up on his own he found the case he cited it he relied on it and spoke about future lost income being so difficult to ascertain that he wasn't going to order past lost income that was documented by a straight forward tax return and there's things you asked the district court to  do to analyze that you say us but the court did not do it that's right your honor ok will tell us what those are we submitted to both the probation  very simple straightforward some one tax return that was prepared on the penalties and pains of perjury that showed what the lost wages in the past w per week by the injured victim that the judge declined in my opinion there's got to be more than simply the victim's statements award the rest to sion with regard to the evidence you just you just mentioned case of united states versus powell which also cites united states versus terry and earlier case and if i can just read it just two sentences the the opinion in the citing  as a mere objection to the finding in the pre sentence report is not sufficient the defendant has an affirmative duty to make a showing that the information in the pre sentence report is unreliable and not to kill eight the reasons why the facts contained are untrue or inaccurate given the presumption of reliability and the routine use of he a say evans found within present reports such evidence cannot be categorically in firm no one ever said to  never said either in court or to the probation department go back you determine this was sufficient for me the tax return but i don't think it's sufficient i want to see more and if the court had done that which  requote one that's one of the requirements another way to handle it is to refer an out if the court wishes to a special master but the court didn't make any effort instead the court just said i need evidence which is just the exact opposite of what the powell case as chrysta pal case also says in the paragraph before that that the confrontation clause is not required when dealing with pre sentence reports if the  that was the case no judge could ever sentence a defendant because virtually everything on a pre sentence report is c s a but but the judge didn't do that he just said well i'm not happy you get nothing and your remedy he tells  to file civil suit well that is the prior practice that was being changed i thought maybe i misread this record misunderstand this case maybe i'm thinking about another case i thought that the magistrate judge relied on the fact that he thought that this was too complex to figure the complexity exception is that wrong no that's right you're wrong he decided in a case which is the least complex  you have to say he didn't do the correct legal analysis in determining that the complexity exception or the complexity rule applied here that's quite and that's what your basis of your appeal is well so if it's two fold your honor that's what you say it's twofold he didn't get far enough to determine if it was complex because he never asked for anything that impeached the tax return  complex and have no basis at all for just like the judge can decide as a discretionary matter i've decided i'm not giving restitution to anybody with red hair the has to be something that backs up a determination fo of discretion and here you've got a tax return that's one prepared by a third party filing the penalties of perjury with the united states government it's exactly what the defense counsel had asked for earlier as proof of wages of lost wages when the issue came up earlier in the early hearing the judge didn't say then oh and by the way submit more the probation department finds it's a sufficient basis for them to recommend three hundred sixty six dollars a week and i know that only because it was mentioned in open court not because we've got the pre sentence investigation report what and the judge just decides for no expressed reason at all that that's too complex well before the judge can decide that when he's got a facially proper request and a very simple one then it seems to me he's got to follow thirty six sixty four that's what even the discretionary restitution provision says in the last sentence the court must comply with thirty six sixty four that is what the court even articulated out loud he said i know i have to comply and he named the probation restitution statute and thirty six sixty three and then he said and thirty six sixty four the court was well aware that that statute was there but before a judge can just decide not to follow the only evidence in front of him of what the person earned and sworn evidence then the court has a couple of options procedurally and none of those which shows and which is why what we're asking for here is simply a remain so the court can and should under directions from this court we believe exercise one of those options would like to say that i think the request we have asked for for remains important because the judge said he rarely handle such cases and the transcript shows he said he was not equipped well if he keeps refusing the court is never going to be equipped thank you i think we understand your position  it please the court your honor is my name is jason mending or on behalf of the united states one of the respondents in this matter the other respondent is counsel for the defendant i'll be very brief with me at counsel table is assisting united states attorney jayne nathan she was the trial counsel in this matter to state briefly for the court in this matter the government entered into a plea agreement with the defendant whereby the government would take no position whether or not restitution was going to be offered we made that agreement  policy that determines this so we don't have a policy your honor it's just the individual it just seems to me i've never seen this before happen in twenty five years and so i just wondered if this was some sure in other words it did does it ensures that the conviction stands and that there's no litigation risk parties have a dispute and they want to have the solicitor general's office weighing in generally this lister general's office talks to people from both sides and i was just curious if you talk to the victims close to i'm sorry are in terms of this appeal in terms of the position that the government was going to take we did your honor again so eleven the guilty plea the victim's counsel was there and they had known about that so that was what my question is you talk to both the perpetrators counts on the victims correct your honor we did and so with that your honor we know that that is a fair question your honor i will say we got an order to be here as a respondent because we were a party below but otherwise we don't have a dog in this fight thank governing probation cases invests chords with substantial discretion with regard to both the general question of whether to order restitution at all and the specific question of whether restitution isn't appropriate under the complex the exception of eighteen u s c thirty six sixty three the magistrate judge in this case was well within the bounds of that substantial discretion when he invoked the complexity exception in the calling to order restitution so turning first to that specific grand obscuration complexity exception mr stone says is a very straightforward case of determining lost income  and on the surface perhaps it seems that way but i think there are a number of facts in this record that once you start doing a little bit deeper make this more complicated than it might at first appear the first is that mr brown is not a regular salaried employee does not receive a regular consistent bi monthly paycheck that you can just take a number from and multiply by tax return he did your honor but my point is that he didn't willing to pay taxes that's pretty good indication that you earned it right absolutely we're not contesting that he earned that money my point is that if you're going to use past income to project what x is on to past income yes your honor but i'm saying we have not only his i guess sworn i don't know if it was sworn or not torn statement on it but we also have a statutory yes we're not contesting the truthfulness of the tax return though it's a tax return covers the first five and a half months of twenty seventeen and what the court to make that distinction right so i was decision your honor it didn't make that distinction about what the tax returns covered and give him restitution in that amount it didn't give any restitution no i didn't determine that it was too complex and i'm saying i think one one factor that supports that complexity determination is that in this case looking at five months or five and a half months of past income is not necessarily going to be a reliable way of determining what his income would have been over the following ten months because this is not somebody who receives a consistent my monthly paycheck in a certain amount he would cover past income no he did not your honor well he'll agree with me that it is a reliable evidence of past income there's nothing complex about that right it's reliable as to what he earned in those five months but if you actually look at his his first restitution request it lists how much money he was making in each of those months and the numbers fluctuate quite a lot from month to month so general twenty seventeen it was thirty two hundred and it's twenty seven hundred then forty five hundred and eighteen hundred and back twenty four hundred then fifty seven hundred and i think part of this is that as the record shows mr brown's business was just getting off the ground it's only been in operation for five months is a sole proprietor sole employee this is not a business with a consistent track record where you could take something you know three years of income and say ok this is a reliable snapshot of what he earns and multiply that by however many months he was out of work so the  other complexity cases i've read a few of them not so not many so not such a big burden is there there are not a lot of case case that you think is factually closest to this you know i don't have a case about the fact that he thinks mr brown would be out of work up to a year and a year and a half from full time work as an electrician but it makes no mention of either part time work or full time work in an in a different line of work and or the magistrate judge noted something where you might want to have a vocational expert and then right doctor come in and get testimony about whether the the victim could work you know two days a week or four hours a day or something like that give them an opportunity to do that well at the end of the february first hearing which was the first sentencing hearing and i'm straight judge ordered a p s r which by itself is rare in these cases my counsel my colleague who handles twenty percent where a p s r is prepared one way or another and my point with that is simply that taking that step of ordering p s r shows the district court was taking this seriously was did want to get the facts and when he ordered the p s sorry specifically instructed the victim if you have information about your bills and expenses you can give it to probation so he had an opportunity to provide you know as much information as he thought was appropriate and you know this court may may not agree in the first instance that it would make the same determination is not straight judge but we are on an abuse of discretion standard here sure they should have to comply with this that he does and i think he did that your honor is as you mentioned the discretionary or the because we need to vocational expert we need a more tax returns to show over time how reliable this is did the posing councils  d mean person on your side so yes my michael my colleague who handled this case below and that she would ordinarily like the opportunity to cross examine witnesses about you know what income there was or what kind of medical condition mr brown was in she did say that at the first hearing and the district court at the second hearing on april eighteenth said you know in most cases we would have a medical expert we would have a vocational expert i thought that he said that in relation to the fact that there would usually be a civil case brought i think it well he said you know he didn't say that in front of me i would expect there to be medical experts etc i don't think if you remember the record differently well i have to look at the transcript my my on my recollections he said in a case like this we could usually see but he regards this as and i don't think that's wrong as usually that you're going to being a civil case against the other party the drunk driver  usually dealt with the problem is it seems to me that the statute requires him to balance it requires him to determine the what the what the restitution order should be by look and seeing whether th need for that outweighs the need the need to get a fair result that is not prolonged or is not too complex that meets the needs of the victim and that's my problem here with the abuse of discretion i mean notwithstanding what the arguments are made what the merits are i think that he could have reached the same conclusion explicitly noted that he had the discretion to order this restitution he said that at both the february first hearing and the april eighteenth hearing he said i do have this discretion and when he was announcing his ruling he said i now have to decide whether as a matter of discretion to award that restitution or not  and he you know the mr brown points out to the point of the part where he says you know i'm not usually equipped to do this but he says the judge said right after that but the statute says this court has the authority to do it so i'm going to do it but there is a process i have got to follow rules apply so i think he did follow the process he looked at you know the evidence that was in front of him he heard arguments from defense counsel  about the fact that she would want to cross examine experts on this kind of thing he knew that mr brown was a as i said a you know soul employee with a business that's just getting off the ground with an ambiguous doctor's note which the statute you're right to the extent the court determines this sentencing process resulting from the fashioning an order of restitution under this section outweighs the need to provide rest to shoot for any victim the court may decline mr brown is not without his day in court he has a remedy he has a civil remedy and to order restitution in the amount that is being requested with the evidence that would give me the level of confidence and comfort in that i'm being accurate would in my opinion complicate and prolonging the sentencing hearing and my question to you is whether you could say with in the light of this record and what the evidence was that he and front of them whether we can say whether or not that is an abuse of discretion because it seems to me the statute talks about when the two sides and if he were in deciding whether it is too complicated or not and we have on one side a pretty ordinary calculation and not very much restitution requested considering the damages here yes absolutely and i just read that it seemed to me what the district court last well i think we'd want to have a test last right yes it's lost it's lost income your honor but this is where this is what the point i was trying to make about him being an independent contractor which is that it's hard to getting that using that first five months as a representative sample of what's to come i don't think is i think your position that he had to be a salaried employee and has his taxes withheld in order because we're never going to know to an absolute certainty it with someone and he could be helped the person could be fired short know that would that have been sufficient i'm just not sure what was deficient in what he put it no it might be other reasons for denying not abused his discretion in deciding that he would have liked for instance to hear testimony about as i said this is a five month old business operating out of mr brown's home he just bought a truck he was your point that what was produced by the victim was not sufficiently we're liable to project income as opposed to that was untruthful correct yes we're not absolutely not disputing the truthfulness of that information but if i gave that impression i apologize  earlier about getting a part time job working in a different line of work but second of all that the district not straight judge is allowed to make his own conclusions regardless of whether we make a specific objection we're not the ones appealing here it's it's restitution i'm not that a judge to give restitution she's not he's not going get in the money i mean because and we can almost tell you as a matter of law this man certainly here is is injured is no question about how much were his he has lost wages no question about it yes and to give him a boost say so because he is complicated it is not only asking for eighteen thousand and that's not his last wage that's not what he claims he the evidence is there to give it or not that's one thing but to say that this evidence is insufficient to establish eighteen thousand dollars of a restitution to a man who is lawful it was everything i saw was he as i think that's the determination of where they would take the kates that's that's my understanding yes here but so so so the bottom line is what do we do with a case where this absolutely is some basis evidence to show lost wages one is clear this man has tremendous damages of which is no question as you say he didn't work for a while right how long did he not work that precludes those certainly up to the time of the statute that congress has written on says that if determining how much restitution that person is an idol to would complicate or prolong the proceedings the district court in its discretion and that outweighs the need for us to argue against if you in the award of eighteen earlier that that wasn't no it's not the law arms and there are number of factors all of which together allowed to strike or be one of the factors whether or not you're salaried employee well i think your think that the congress in acted to statute which would only be put into the mix whether somebody is a salaried employee if they're in it to whether they're entitled to rest not as a matter of law per se but i think that your past income thing that the magistrate judge consider whether the person is a salaried employee i think you can look at past income as a predictor of future income and if you have until the east showed you that with the tax return you did but might but my point is wrong or that it's it's an even income and for sure it's once from month to month it's a new business the doctor has  that the getting the number we acknowledge of absolute precision is not required but getting the number right is important because this is a condition of probation that if she violates she could be sent back to prison for or jail for  just determining that amount would be would be too complex so i must as any other questions thank you thank you mitigation was all rendered irrelevant once the judge found as a fact in joint appendix one twenty eight that he believed them and then he couldn't work because he had all these rods and plates and rehabilitation was doing so talking mitigation by part time work when the judge made a finding that the man couldn't work he accepted that he couldn't work at all that's really irrelevant that goes to that second misstatement of the facts counsel he had just said that there was only five and a half months that this business was an operation that is not true it is not in the record is attach or a term that goes from january one as we all have calendar to the date of the accident in june that's why this five and a half months if the judge would call that a tax return from the prior year that could have been requested and it could have been provided and in fact at the early hearing when the man put in his expenses his gross expenses his outlays it included material from the year before so we know for a fact that what tax returns from probably use this gets to the most important i think disagreement i have with counsel on the other side you asked whether the judge actually had a hearing where he weighed what was going on the answer to that is absolutely no it couldn't have happened in february because the very first sentence of thirty six sixty four which the judge was following says that when there was arrested dushan request the judge shall order a pre sentence report that talks about restitution so the argument that only twenty percent of the cases before the magistrate may have pre sentence reports has no relevance here because i don't know what percentage ask for restitution but when there is a rick request for restitution the judge shall order the p s i i and that's why they couldn't have been a balancing before the p s i was even prepared to p s i i is not available until the second  hearing not the february hearing the second hearing and we know that the judge didn't do a balancing then because i'd like to read thirty six sixty four the first sentence says any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence you will note if you look through that transcript not once judge does the judge say by the preponderance of the evidence i find this or that the judge never weighs it he just simply says this is too complex i'm not even getting to that stage where asking for remained so the judge does have to say ok i've looked at it all and by the preponderance of the evidence he has what i find thank you