United States District Court, D. Maine
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)
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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
James Stile's Motion
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)).
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.
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).
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
The May 29, 2015 Sentencing and Restitution Order
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
Agreement to Plead Guilty (With Stips. and Appeal
Waiver) at 2 (ECF No. 540).
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.
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.
Probation Office issued a Presentence Investigation Report
(PSR) on February 20, 2015 and the Officer revised the ...