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United States v. Yellow

United States District Court, D. South Dakota, Central Division

November 18, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
CODY YELLOW, ROBERT GRINDSTONE, AND AKE KYLE EAGLE HUNTER, Defendants.

          OPINION AND ORDER GRANTING RESTITUTION AND FOR AMENDED JUDGMENT

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE

         This Opinion and Order resolves the remaining issues on restitution for the arson of a church.

         I. Facts

         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 traveled 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. They then broke into, set fire to, and destroyed the church. That church-known as St. Basil's Church or the Mossman Church-was built m 1917 by local residents on what is now tribal land. The church once served as a Catholic church, but in recent years had fallen into a state of partial disrepair. Community members still used the church for an occasional wedding or funeral, an annual Memorial Day service, and a 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 to and been sentenced for arson and aiding and abetting, while Eagle Hunter pleaded guilty to and was sentenced as an accessory after the fact. 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. All three Defendants were at the church when the arson occurred, but they variously blamed each other for the idea and actions. 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 Victims Restitution Act (MVRA), 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[1]-a 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. Certain details of Rousseau's testimony and exhibits are incorporated into the discussion portion of this Opinion and Order. This Court made clear that it intended 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.[2]

         This Court then set an evidentiary hearing to take place on August 23, 2016, to hear any further evidence. On August 12, 2016, 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 locate an expert to offer an alternative opinion 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 filed a separate Motion for a Continuance, Doc. 192, and a Motion to Compel Defendant's Attendance at Restitution Hearing, Doc. 193. Like Eagle Hunter had done, Grindstone asked in the motion for a continuance for time to locate an expert. Doc. 192. This Court granted Eagle Hunter and Grindstone's motions, cancelled the August 23 second restitution hearing, and in lieu of another evidentiary hearing, set deadlines for the Government and the Defendants to submit argument and by affidavits any additional information. Doc. 194.

         Based on the record, this Court determined that a second evidentiary hearing on restitution issues was unnecessary. The Government had 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, and none of the Defendants contested that information. 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. Doc. 189. Those other remaining issues had been addressed in prior testimony, and all parties received an opportunity to submit any additional information through affidavits and briefing. 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). This Court has allowed the Government and Defendants an opportunity to submit any affidavits (including any alternate estimate of cost to replace the church as Eagle Hunter and Grindstone contemplated) and written argument. Doc. 194. The Government submitted argument and an affidavit seeking a replacement cost of $141, 459.00, which is greater than what Rousseau had discussed in his testimony. The Defendants submitted no affidavits, but made various arguments against restitution.

         II. Discussion

         The MVRA governs the remaining questions on restitution. The MVRA states that a sentencing court "shall order ... the defendants] [to] make restitution to the victim of the offense." 18 U.S.C. § 3663A(a)(1). Under the MVRA, a "victim" is "a person directly and proximately harmed as a result of the commission of an offense." 18 U.S.C. § 3663A(a)(2). A court is to begin the process of a restitution award by identifying the victims of the defendants' conduct. United States v. Frazier, 651 F.3d 899, 903 (8th Cir. 2011); United States v. Chalupnik, 514 F.3d 748, 752 (8th Cir. 2008). The Defendants argue variously that there is no victim because there is no owner of this allegedly abandoned church or that the "number of victims . . . would be so large as to make restitution impractical." Doc. 198 at 3. Defendants' arguments are factually mistaken.

         First, although needing repair, the church was not abandoned. The church was used for occasional baptisms, funerals, and weddings. There was an annual Memorial Day service at the church. The church sometimes was used as a meeting spot for the community of nearby residents in this sparsely populated rural area. The bell in the bell tower of the church rang out when burials occurred in the cemetery adjacent to the church. The community had plans to repair the church, and indeed there was a $37, 183.22 account balance in the church's bank account for renovation and maintenance of the church. Deposits had been made into that account in recent years, and the account had remained open from January of 1986. Doc. 182 at 27.

         Second, the informal communal ownership of the church means neither that there is no victim nor that there are too many victims, and does not excuse the Defendants from a restitution obligation. Although it would be ideal if church community members had formed a 501(c)(3) not-for-profit corporation, the failure to do so is not fatal to ordering restitution. The destruction of the church "directly and proximately harmed" a number of people and indeed a church community. See 18 U.S.C. § 3663A(a)(2). The church did not have a single listed owner, but was being cared for by descendants of Basil and Mary Claymore. The Claymores had built the church in 1917, and family members had cared for the church through the years. The church was owned by descendants of the Claymore family. The church was on tribal land, and although the Cheyenne River Sioux Tribe did not itself own the church, the Tribe desires that the church be rebuilt on the land adjacent to the cemetery.[3] The Claymore family descendants established a church savings account in January of 1986, which, as mentioned earlier, had an account balance of $37, 183.22. Doc. 182 at 27. Those descendants have applied for and received a grant of $25, 000.00 from the Deadwood Historic Preservation Committee, which appears designated to repairing or replacing a fence surrounding the historic cemetery and church. Doc. 182 at 25. The restitution amount should be paid to that bank account, Account Number 2908 at State Bank of Eagle Butte.

         Next, the Defendants take issue with the amount of restitution. The amount of restitution "must be based on the amount of loss actually caused by the defendant's offense." United States v. Petruk, 484 F.3d 1035, 1036 (8th Cir. 2007) (quotation and internal quotation marks omitted). If, as here, the offense is the loss or destruction of property, the victim's actual loss equals "the greater of. . . the value of the property on the date of the damage, loss, or destruction; or . . . the value of the property on the date of sentencing." 18 U.S.C..§ 3663A(b)(1)(B)(i)(I)-(II); Frazier, 651 F.3d at 904. As the Eighth Circuit has noted, this section of the MVRA instructs the court to a point in time when property should be valued, but does not "prescribe any particular method to be used in determining the 'value' of lost or damaged property." Frazier, 651 F.3d at 904. Because there is no single method to be applied in determining restitution in all circumstances, "the 'value' of lost property under the MVRA must be determined in the district court's discretion depending on the circumstances of each case." Id. The district court must be mindful of Congress's intent for restitution under the MVRA, which is "'a compensatory remedy from the victim's perspective, ' and as such, restitution 'should be limited to compensation for [the victim's] actual losses.'" Id. (quoting Petruk, 484 F.3d at 1038). The Eighth Circuit has recognized the variety of methods available to a court under the MVRA in valuing property- fair market value, replacement cost, and foreclosure prices-but has suggested that fair market value is the most apt means to value property. Frazier, 651 F.3d at 904; see also United States vs. Boccagna, 450 F.3d 107, 114-15 (2d Cir. 2006). The Eighth Circuit, however, has acknowledged that when the actual cash value of property is difficult to ascertain because of the uniqueness of the property or the lack of a broad and active market, then replacement cost rather than fair market value may better compensate the victim for the full amount of loss. Frazier, 651 F.3d at 904 (relying upon Boccagna. 450 F.3d at 116, and United States v. Shugart, 176 F.3d 1373, 1375 (11th Cir. 1999)). Ultimately, it is for the district court to select the appropriate valuation method based on applicable circumstances. Frazier, 651 F.3d at 904.

         The Eighth Circuit in Frazier cited to an Eleventh Circuit MVRA case-United States v. Shugart, 176 F.3d 1373 (11th Cir. 1999)-which is factually analogous to this case. In Shugart, a district court used replacement value when awarding restitution for the arson of a century-old church, and calculated the restitution in an amount equal to the cost of rebuilding the church using modern construction and materials. Id. at 1374. In affirming the restitution award, the Eleventh Circuit in Shugart, emphasized the importance of ...


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