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United States v. Stile

United States District Court, D. Maine

February 8, 2019

UNITED STATES OF AMERICA
v.
JAMES STILE

          ORDER ON DEFENDANT'S MOTION FOR COURT TO ORDER GOVERNMENT/PROBATION OFFICE TO DISPENSE WITH SWORN AFFIDAVIT SUBMITTED BY HANOVER INSURANCE THAT WAS TO BE MADE IN ACCORDANCE WITH TITLE 18 USC § 3664(D)

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         The Court denies a defendant's motion for the Government and the Probation Office to produce a copy of an affidavit from the victim's insurance company that the defendant contends the insurer was required to file before a restitution order could have issued in its favor. The Court finds that no such affidavit exists and therefore none could be produced. The Court further concludes that 18 U.S.C. § 3664 does not require that a probation officer file an affidavit from the victim before a sentencing court may issue an award of restitution, particularly where, as here, the defendant consented at the sentencing hearing to the amount of the restitution award. Finally, the Court rejects the defendant's late objection to an amended judgment which substituted the name of the insurance company in the place of the victim once it was determined that the insurer had paid for a portion the victim's loss that was the subject of the restitution award.

         I. BACKGROUND

         On December 6, 2018, the Court issued an order, dismissing without prejudice James Stile's motion for the production of victim affidavits. Order on Def.'s Mot. for the Production of Victim Affs. (ECF No. 706) (Order). In that order the Court extensively described the background leading up to its order and for a more detailed recitation of the history of this case, the Court refers to its December 6, 2018 order. Id. at 1-5.

         A. James Stile's Motion

         On December 26, 2018, Mr. Stile filed a motion for the Court to issue an order directing the Government and the Probation Office “to dispense with sworn affidavit of Hanover Insurance Company that was to be procured in accordance with Title 18 U.S.C. § 3554(d) from the timeframes set forth in the statute, ‘60 days prior to the date initially set for sentencing.'” Mot. for Court to Order Gov't/Probation Office to Dispense with Sworn Aff. Submitted by Hanover Ins. that was to be made in Accordance with Title 18 U.S.C. § 3664(d) at 1 (ECF No. 709) (citing § 3664(d)(1)) (Stile Mot.). Mr. Stile also seeks an order requiring,

[The] Government/Probation Office to dispense with any communication with the Court and Hanover Insurance Company that will show compliance with § 3664(d)(5) where Government/Probation Office having failed to comply with § 3664(d)(5) provisions “if the victim's losses are not ascertainable by date that is 10 days prior to sentencing, the attorney for the Government [or] the probation officer shall so inform the Court, and the Court shall set a date for final determination of the victim's losses, not to exceed 90 days after sentencing.”

Id. (quoting § 3664(d)(5)).

         Focused on § 3664(d)(5), Mr. Stile demands that the Court order the Government and the Probation Office to provide him “with copies of any documents of communication to the Court as concerns § 3664(d), copies of any loss statement, policy, subrogation action, policy of reinsurance, ‘sworn affidavit' making claim that meets the requirements set forth in § 3664(d).” Id. at 6.

         On December 28, 2018, the Government responded to Mr. Stile's motion. Resp. by the United States of Am. to Def.'s Mot. for Court to Order Gov't/Probation Office to Dispense with Sworn Aff. Submitted by Hanover Ins. that was to be made in Accordance with Title 18 U.S.C. § 3664(d) (ECF No. 711) (Gov't's Opp'n).

         II. DISCUSSION

         In its December 6, 2018 order, the Court addressed the issues that underlie Mr. Stile's motion. Order at 1-12. Mr. Stile persists in his insistence that the Government and/or the Probation Office were required to comply with § 3664(d)(5) and their failure to do so was somehow in violation of the statute. Stile Mot. at 3 (“[T]here was never compliance with § 3664(d) as concerns affidavits”). Although he does not come right out and say so, the only reason he would raise this issue is to avoid the portion of the restitution order that the Court ordered him to pay Hanover Insurance Company because it was in his view illegally imposed. Mr. Stile clarifies that he does not contest the portion of the order requiring him to pay E.W. Moore & Son Pharmacy its $1, 000 deductible. Id. at 5 (“[The pharmacist] will be paid as he was brought forth as a victim albeit not in proper procedure and form with proper compliance with § 3664(d), no different than Hanover Insurance Company pretty much was never brought forth until more than 6 years ex post facto”).

         A. The May 29, 2015 Sentencing and Restitution Order

         As the Court's December 6, 2018 order explained in detail, Mr. Stile's motion is based on a fundamental misunderstanding of the restitution statute and the way restitution issues are resolved at a sentencing hearing. Under 18 U.S.C. § 3663A(a)(1), a court must award restitution to any victim of a crime of violence. Mr. Stile's armed robbery of the E.W. Moore Pharmacy meets the definition of a crime of violence. 18 U.S.C. § 16. Therefore, under the law, restitution to E.W. Moore was mandatory. § 3663A(a)(1). In fact, in his plea agreement, Mr. Stile acknowledged:

In addition to the other penalties provided by law, the Court must also order Defendant to pay restitution to the victim or victims of the offense, pursuant to 18 U.S.C. § 3663 or § 3663A.

Agreement to Plead Guilty (With Stips. and Appeal Waiver) at 2 (ECF No. 540).

         The statute sets forth a procedure for determining who is entitled to restitution and the amount of the restitution. § 3664. The first step is for the Probation Office to investigate any restitution claims and report back to the Court. Id. § 3664(a). The Court complied with this part of the statute. Immediately following Mr. Stile's guilty plea, the Court ordered the Probation Office to prepare the “customary presentence report.” Tr. of Proceedings 51:3-4 (ECF No. 609) (“I hereby order the preparation of the customary presentence investigation report”) (Rule 11 Tr.). In doing so, the Court ordered the Probation Office to investigate any restitution claims and report back to the Court so that the Court could “exercise its discretion in fashioning a restitution order.” § 3664(a). At the Rule 11, the Court informed Mr. Stile:

You will have an opportunity to review the report. I don't need to tell you, I don't think, to carefully review the report. I'm sure you'll do that. I want you to realize that I'm going to rely on the contents of the report in determining the correct sentence to impose on you and I do not want to sentence you on the basis of any inaccurate information. So, I'm going to ask you to review the report carefully and consult with Mr. Rodway if you find any inaccuracies in the report and let him know. I'm sure Mr. Rodway will let me know if there are any inaccuracies. That would be resolved one way or the other and ultimately the matter will be set back in court for the imposition of sentence.

Rule 11 Tr. 51:16-52:4.

         The Probation Office set about investigating the recoverable losses E.W. Moore sustained as a result of the robbery under § 3664(b)(2)(A). Although the Probation Office obtained three victim impact statements, there is no mention of the amount of the loss in any of those statements.

         The Probation Office issued a Presentence Investigation Report (PSR) on February 20, 2015 and the Officer revised the ...


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