United States District Court, D. South Dakota, Northern Division
MEMORANDUM OPINION AND ORDER
CHARLES B. KORNMANN, District Judge.
Defendant, Bradley Freidel, pleaded guilty to Arson in violation of 18 §§ 844(1) and (2) and was sentenced on December 14, 2009. As part of his sentence, defendant was ordered to pay restitution in the amount of $182, 350. The Mandatory Victims Restitution Act (MVRA), codified at 18 U.S.C. §§ 3663, 3663A, and 3664, made restitution orders for the full amount of the victim's loss mandatory for certain offenses. Arson is one of the offenses for which restitution must be ordered, as it is included in "offenses against property" described in 18 U.S.C. § 3663A(c)(1)(A)(ii). Accordingly, under 18 U.S.C. § 3663A, this Court ordered defendant to pay restitution to the victim of his crime, i.e., Auto-Owner's Insurance of Willmar Minnesota (Auto-Owner's), the company who insured the destroyed building. On July 22, 2001, defendant set fire to D&D Value, a grocery store in Gettysburg, South Dakota, owned by Donn Gregory Quiett. After the fire, Auto-Owner's made two payments to Quiett, totaling $282, 350.
Over a period of approximately seven years, Quiett paid Freidel around $58, 490 with checks drawn on his personal checking account. Freidel also received some cash from Quiett. The two eventually came under the scrutiny of criminal investigators and both men were charged with arson in 2008.
Factual basis statements signed by each defendant pursuant to respective plea agreements differ as to exactly what events took place leading up to the fire. Freidel claims Quiett asked him to burn the store. Quiett denies this. For thepurpose of this order, the discrepancy need not be addressed. In the end, Freidel pleaded guilty to arson and Quiett pleaded guilty to the lesser charge of misprision of a felony.
The total pecuniary loss to Auto-Owner's totaled $282, 350, the amount paid on the policy to cover the property loss. Quiett made an offer to pay Auto-Owner's $100, 000 if Auto-Owner's agreed not to seek restitution from him in the criminal proceedings. The parties agreed and Quiett made the payment. On December 14, 2008, at sentencing, Quiett received probation and a fine. Freidel was sentenced directly after Quiett's hearing ended. The $282, 350 total victim's loss was reduced by $100, 000 to reflect Quiett's payment to the victim. Freidel was sentenced to a term in prison and also ordered to pay restitution for the remaining amount of $182, 350 (the recalculated full loss) as required under the MVRA. The United States Court of Appeals for the Eighth Circuit has said:
[I]f the court finds more than one defendant responsible for a victim's loss, "the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant." § 3664(h).
United States v. Moten , 551 F.3d 763, 767 (8th Cir. Ark. 2008).
Freidel now submits a motion to satisfy restitution though he has not yet paid the full amount due under his judgment and sentencing. Defendant has made restitution payments totaling $14, 856.61 and has now obtained the victim's assertion to forgive the remaining money due in exchange for a final additional payment of $20, 000. Defendant has tendered a cashier's check to Auto-Owner's for that amount and Auto-Owner's returned an official business letter stating that they are now satisfied and willing to consider the matter settled. See generally Doc. 99-2.
Under the MVRA, once ordered, restitution is a final judgment that may not be modified except under narrow conditions. They are listed at 18 U.S.C. § 3664(o) as follows:
(o) A sentence that imposes an order of restitution is a final judgment notwithstanding the fact that -
(1) such a sentence can subsequently be-
(A) corrected under Rule 35 of the Federal Rules of Criminal Procedure and section 3742 of ...