Wednesday, February 26th, 2014

Restitution Under the Mandatory Victims Restitution Act Is Improper for Harms Not Listed in the Statute

United States v. Maynard, No. 12-5106-cr (2d Cir. Feb. 24, 2014) (Kearse, Jacobs, and Parker), available here

This important decision holds that, under the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. §§ 3663-64, restitution may be awarded only for the harms enumerated in the statute.
The facts were simple: Maynard and Ludwig robbed five banks between September and November 2011. At sentencing, the district court ordered the defendants to pay restitution to the banks under the MVRA. More than half of the restitution was to repay the money stolen during the robberies, and was clearly proper. But the rest included certain expenses paid by one of the banks: (1) paid time-off for the bank’s regular staff, and the pay of replacement staff; (2) mileage expenses for the replacement staff; (3) the cost of wanted posters; and (4) the cost of a temporary security guard at the bank after the robbery.
The Court noted that the MVRA requires a court to order restitution for the four categories of harm listed in the statute, but makes no other expense reimbursement mandatory. And no provision of the statute gives district courts discretion to order any other restitution. Accordingly, the Court held, only those expenses enumerated in Section 3663A(b) are properly the subject of restitution.
Applying this rule to the facts, the Circuit held that aspects of the restitution award were improper. Indeed, the award was proper only to the extent it compensated the bank for the amount stolen during the robbery and for the money it paid its regular staff for the afternoon while the bank was closed as a crime scene. Restitution was proper for the latter expense because the bank derived no benefit from the wages paid while the bank was closed. The bank then reopened, but allowed its regular staff to stay home (with full pay) for a couple of extra days to recover from the stress caused by the robbery. That expense was not a proper subject for restitution, because the bank would have paid the regular staff for these days even if the bank had not been robbed.
The wages (and mileage expenses) for the temporary staff also did not fall within the enumerated harms of the MVRA. The temporary staff wages did not compensate for losses such as destruction of property or funeral expenses, and were not necessary to the prosecution or investigation of the offense. While the expense was arguably attributable to the psychological recovery of the regular staff present during the robbery, the MVRA limits recovery for psychological harm to instances of “bodily injury.” And even if the wages constituted a “business expense” absorbed by the bank, as the government argued, the MVRA does not include a business expense category.
Finally, the Circuit held that restitution for the cost of the wanted posters and the temporary security guard was not authorized. These expenses, the Court concluded, were not “necessary” to the investigation or prosecution of the offense, and did not fall within any other category of harm listed in the statute. 
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