United States District Court, D. South Dakota, Central Division
ORDER CANCELLING RESTITUTION HEARING AND SETTING
DATES FOR SUBMISSION OF AFFIDAVITS AND ARGUMENT
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Defendants
Cody Yellow ("Yellow), Robert Grindstone
("Grindstone"), and Ake Kyle Eagle Hunter
("Eagle Hunter"), on July 19, 2015, were together
drinking alcohol and traveling around in a car. The three
drove to a rural church on the Cheyenne River Indian
Reservation near Ridgeview, South Dakota, either to use an
outhouse or to visit a grave site near the church. That
church-known variously as St. Basil's Church or the
Mossman Church-was built in 1917 by local residents on what
is now tribal land. The church once served as a Catholic
church, but in recent years had been used by community
members for an occasional wedding or funeral, an annual
Memorial Day service, and occasional meeting place.
The
Defendants tell different stories about the extent of their
involvement in the destruction of the church on July 19,
2015. Yellow and Grindstone have pleaded guilty and been
sentenced for arson and aiding and abetting, while Eagle
Hunter pleaded guilty to accessory after the fact and has
been sentenced. In brief, despite the church being locked,
one or more of the Defendants kicked the door open, discussed
briefly burning the church down, spread an accelerant within
the church, and set the church on fire. The church was a
total loss as a result of the arson crime.
At each
of the Defendants' separate sentencing hearings, this
Court left open the question of restitution under the
Mandatory Victim's Restitution Act, 18 U.S.C. § 3663
A. This Court set and held an evidentiary hearing on July 11,
2016, to hear testimony. The Government called and counsel
for each of the Defendants cross-examined Michael Rousseau,
the descendant of tribal members who built and cared for the
church and its grounds, about the history, ownership,
condition, destruction, plan to replace the church and
possible costs to do so. This Court has made clear that it
intends to award restitution jointly and severally among the
defendants, but wanted some additional information before
determining conclusively the victim or victims to be paid and
the amount. No party objected to this Court taking additional
time to determine the restitution issues under the
circumstances.
This
Court then set an evidentiary hearing to take place on August
23, 2016, to hear any further evidence. On August 12, 2016,
counsel for Eagle Hunter filed a "Motion to Compel
Defendant's Attendance at Restitution Hearing, "
Doc. 190, and on August 15, 2016, filed a Motion for
Continuance, Doc. 191, asking for time to try to locate an
expert to opine about the cost to rebuild the church.
Grindstone joined in the latter motion, but Yellow and the
Government did not. Doc. 191. On August 17, 2016,
Grindstone's counsel filed a Motion for a Continuance,
Doc. 192, and a "Motion to Compel Defendant's
Attendance at Restitution Hearing, " Doc. 193. Like
Eagle Hunter's counsel, Grindstone's counsel asked in
the motion for a continuance for time to locate an expert.
Doc. 192
Defendants
each are serving custody sentences of several years and are
indigent. The likelihood that they will be paying any
restitution soon is remote, so there appears to be no
immediacy in determining the restitution amount. Although
this Court aimed to conclude the restitution order within 90
days of sentencing under § 3664(d)(5), no Defendant
objected to continuing the evidentiary hearing to August 23,
2016, and two Defendants now seek a further postponement of
the determination of restitution issues. There is good cause
to postpone the restitution determination further and no
prejudice to any party in doing so.
None of
the Defendants know anything about ownership of the church,
plans to rebuild, or cost to rebuild. That is, none of the
Defendants, including Eagle Hunter and Grindstone, are
witnesses on any remaining restitution issue. There is little
reason for this Court to have the Government incur the
expense of transporting any of them out of Bureau of Prisons
custody to testify, and indeed Eagle Hunter and Grindstone
have given no indication that they want to testify.
This
Court has conducted an evidentiary hearing on restitution and
had in mind holding a second evidentiary hearing. However,
the Government subsequently submitted a document resolving
one issue, establishing that the Cheyenne River Sioux Tribe
authorizes rebuilding of the church on tribal lands where it
had stood for nearly 100 years. Doc. 189. Other remaining
issues can be addressed through affidavits and briefing in
this Court's view. After all, [n]either the Due Process
Clause nor the federal Sentencing Guidelines require[] the
district court to hold a full-blown evidentiary hearing to
decide a dispute about a proposed restitution order."
United States v. Pierre, 285 F.App'x 828, 829
(2d Cir. 2008); see also United States v. Adeiumo,
777 F.3d 1017, 1020 (8th Cir. 2015) ("Sufficient
information for the entry of a restitution order may be
produced by witness testimony at a hearing or sworn victim
statements outlining the losses which resulted from the
crime."); United States v. Vandeberg, 201 F.3d
805, 813 (6th Cir. 2000) (concluding that district court has
a number of options to determine proper amount of restitution
including requiring additional documentation or
testimony).
For
good cause, it is hereby
ORDERED
that Eagle Hunter and Grindstone's Motions for
Continuance, Docs. 191, 192, are granted and that the second
restitution evidentiary hearing set for August 23, 2016, is
cancelled. It is further
ORDERED
that in lieu of a restitution hearing the Government shall
have until September 1, 2016, to submit any affidavits and
written argument; that Defendants shall have until September
15, 2016, to submit any affidavits (including any alternate
estimate of cost to replace the church as Eagle Hunter and
Grindstone contemplated) and written argument; and that the
Government shall have until September 22, 2016, to file any
reply if it wishes to do so. It is finally
ORDERED
that Eagle Hunter and Grindstone's motions to attend the
restitution hearing, ...