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detailing calculation of restitution award for lost wages
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Case No. 17-cr-0208 (WMW/SER)
08-06-2019
UNITED STATES of America, Plaintiff, v. Pisanu SUKHTIPYAROGE, Defendant.
Laura M. Provinzino, Melinda A Williams, United States Attorney's Office, Minneapolis, MN, for Plaintiff. Frederick J. Goetz, Goetz & Eckland PA, Minneapolis, MN, for Defendant.
Laura M. Provinzino, Melinda A Williams, United States Attorney's Office, Minneapolis, MN, for Plaintiff.
Frederick J. Goetz, Goetz & Eckland PA, Minneapolis, MN, for Defendant.
RESTITUTION ORDER
Wilhelmina M. Wright, United States District Judge
Defendant Pisanu Sukhtipyaroge pleaded guilty on May 22, 2018, to visa fraud, in violation of 18 U.S.C. §§ 2 and 1546 (Count 2), and harboring an alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(B)(i) (Count 3). At the February 6, 2019 sentencing hearing, the Court ordered Sukhtipyaroge to pay mandatory restitution pursuant to the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, but reserved its decision on the amount of restitution. The Court now orders Sukhtipyaroge to pay restitution as specified herein.
If a victim's losses are not ascertainable before sentencing, a court "shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." 18 U.S.C. § 3664(d)(5). But the Court retains the power to order restitution after this 90-day deadline, particularly if the Court has "made clear prior to the deadline's expiration that it would order restitution, leaving open (for more than 90 days) only the amount." Dolan v. United States , 560 U.S. 605, 608, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010). The Court ordered restitution to be paid at the sentencing hearing and expressly continued its decision as to the amount of restitution to permit the parties to provide additional briefing on the matter.
BACKGROUND
As relevant to the restitution amount, Sukhtipyaroge's offense conduct involved aiding and abetting an alien (A.S.M.) in fraudulently obtaining an F-1 student visa. To qualify for this type of visa, the visa holder must attend a specific school and must not work in the United States. Sukhtipyaroge served as A.S.M.'s sponsor, declaring in an affidavit of support for A.S.M.'s visa application that Sukhtipyaroge would provide food, housing, transportation, and educational costs for A.S.M. Sukhtipyaroge also completed a visa application form that A.S.M. was required to complete and directed A.S.M. to make false statements during A.S.M.'s visa interview about whether he would work in the United States and the school he would attend.
After arriving in the United States, A.S.M. lived at several locations, including in the basement of Sukhtipyaroge's home and the basement of the Royal Orchid, Sukhtipyaroge's restaurant. Although A.S.M. worked at the Royal Orchid, purportedly for a monthly salary of $500, A.S.M. received only $125 monthly because Sukhtipyaroge withheld $375 monthly to pay A.S.M.'s purported debt for expenses related to A.S.M.'s education and costs associated with bringing A.S.M. to the United States. Sukhtipyaroge also charged A.S.M. for food and housing expenses. During the first two years after A.S.M.'s arrival in the United States, Sukhtipyaroge also repeatedly forced A.S.M. to engage in sexual acts with him.
The Court sentenced Sukhtipyaroge to 42 months' imprisonment and, consistent with Sukhtipyaroge's plea agreement with the United States, the Court also ordered Sukhtipyaroge to pay restitution pursuant to the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. The parties agreed that A.S.M. is an identifiable victim who suffered physical injury and pecuniary loss. But the parties disputed the amount of Sukhtipyaroge's financial obligation to A.S.M. and to third-party payors. The Court held an evidentiary hearing as to these disputes and ordered supplemental briefing addressing restitution.
The United States seeks restitution in the amount of $138,450.24 payable to A.S.M. for wage loss and the cost of medication, $22,965 payable to Face to Face Health & Counseling for A.S.M.'s psychiatric care, and $15,029 payable to the Safe Journeys Program for A.S.M.'s temporary housing after he was removed from the Royal Orchid. Sukhtipyaroge initially argued that he owed as restitution $9,274 in unpaid wages for the period that A.S.M. worked at the Royal Orchid. But in subsequent briefing ordered by the Court, Sukhtipyaroge reduced the amount of restitution owed and now maintains that A.S.M.'s pecuniary loss is solely attributable to Sukhtipyaroge's visa fraud offense and is only $5,250.
ANALYSIS
I. Applicability of the Mandatory Victim Restitution Act
Sukhtipyaroge's agreement to pay restitution is binding. United States v. Ruff , 420 F.3d 772, 774 (8th Cir. 2005). But the Court is not authorized to award restitution pursuant to the MVRA unless the MVRA applies to Sukhtipyaroge's offenses of conviction. United States v. Doering , 759 F.3d 862, 866 (8th Cir. 2014). The MVRA applies to four categories of offenses: (1) crimes of violence, as defined in 18 U.S.C. § 16 ; (2) "offense[s] against property under [Title 18] ... including any offense committed by fraud or deceit;" (3) crimes related to tampering with consumer products; and (4) offenses related to theft of medical products. 18 U.S.C. § 3663A(c)(1)(A). Only the second category, offenses against property under Title 18, is at issue here.
The parties do not dispute that Sukhtipyaroge's offenses are neither a crime of violence as defined in 18 U.S.C. § 16, nor an offense related to either tampering with consumer products or the theft of medical products.
The MVRA does not include a definition of an "offense against property." And neither the Supreme Court of the United States nor the United States Court of Appeals for the Eighth Circuit has expressly defined an "offense against property under [Title 18], ... including any offense committed by fraud or deceit." 18 U.S.C. § 3663A(c)(1)(A)(ii). As such, this Court's analysis begins with the text of Section 3663A(c)(1)(A)(ii). Haley v. Retsinas , 138 F.3d 1245, 1249 (8th Cir. 1998) ("The first step in statutory interpretation is to look at the text of the statute itself.").
It is clear from the plain meaning of the statutory text that an offense must be against property to fall within the scope of Section 3663A(c)(1)(A)(ii). A qualifying offense may not simply be one committed by fraud or deceit. See United States v. Collins , 854 F.3d 1324, 1333 (11th Cir. 2017) ("The clause ‘including [offenses] committed by fraud or deceit’ does not broaden the meaning of ‘offense against property.’ "); United States v. Quarrell , 310 F.3d 664, 678 (10th Cir. 2002) ("Fraud and deceit ... are not always offenses against property.... [T]he MVRA applies to conspiracies when, as with fraud or deceit, their underlying purpose was an offense against property."). Further, the statutory term "against," as opposed to "relating to" or "concerning," signals that property "must serve as the object of the offense , not simply a collateral component." Collins , 854 F.3d at 1331 (emphasis added). The phrase "offense against property" refers to offenses by which a defendant intentionally interferes with or infringes on the property interest of another. See id. at 1332-33 (discussing the common-law roots of the phrase "offense against property"); United States v. Luis , 765 F.3d 1061, 1066 (9th Cir. 2014) ("The MVRA does not define ‘offense against property’ ... [but] we have held that ‘against property’ means infringing on a victim's property interest."). A defendant who derives an unlawful benefit from the property of another interferes with the other's property interest. Collins , 854 F.3d at 1331 (citing Webster's New World College Dictionary 26 (3d ed. 1996)). The property that is the object of the offense may be real or personal, tangible or intangible. See, e.g., United States v. Ritchie , 858 F.3d 201, 209-10 (4th Cir. 2017) (offense involved financial loss as a result of fraud); United States v. Sawyer , 825 F.3d 287, 292 (6th Cir. 2016) (offense involved asbestos contamination of public land); Luis , 765 F.3d at 1066 (offense involved financial loss as a result of fraud); Quarrell , 310 F.3d at 668-69 (offense involved vandalizing an archaeological site in a national forest).
Courts use a circumstantial approach to determine whether a specific offense is one against property. See, e.g., Ritchie , 858 F.3d at 209-10 (expressly adopting the circumstantial approach over the categorical approach); Collins , 854 F.3d at 1334 (same). Applying the circumstantial approach, this Court examines the particular facts and circumstances of the offense rather than limiting the analysis to the elements of a particular crime charged (the "categorical approach"). See Sawyer , 825 F.3d at 292 (examining the defendant's conduct rather than the elements of his crime). As such, offenses charged under a particular statute may be "offenses against property" in some instances but not in others. See Collins , 854 F.3d at 1335 (acknowledging that the defendant's crime of conviction would not trigger the MVRA in every instance, but because the defendant's conduct showed that she "intentionally derived an unlawful pecuniary gain by taking property belonging to" the victim of the offense, the MVRA applied).
Here, Sukhtipyaroge pleaded guilty to two offenses: visa fraud, a violation of 18 U.S.C. §§ 2 and 1546, and harboring an alien, a violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (a)(1)(B)(i). Of these offenses, only Sukhtipyaroge's visa fraud offense may be an offense against property under Section 3663A(c)(1)(A)(ii). 18 U.S.C. § 3663A(c)(1)(A)(ii) (applying to "offense[s] against property under this title " (emphasis added)).
The offense conduct of Sukhtipyaroge's visa fraud involved guiding A.S.M. through the F-1 visa application process, including directing A.S.M. to make false statements during his visa application interview about his employment in the United States and the school he would attend. In support of A.S.M.'s visa application, Sukhtipyaroge also submitted an I-134 affidavit in which Sukhtipyaroge declared that he would provide food, housing, transportation, school supplies, tuition and education-related costs for A.S.M. And A.S.M. testified that he expected Sukhtipyaroge to fulfill these financial obligations. The evidence supports a conclusion that A.S.M. would not have come to the United States, much less with a fraudulent visa, but for Sukhtipyaroge's promise to pay certain expenses, particularly A.S.M.'s education-related expenses. The evidence clearly demonstrates that, after A.S.M.'s arrival in the United States, Sukhtipyaroge arranged for A.S.M. to work at the Royal Orchid in violation of A.S.M.'s F-1 visa, failed to pay A.S.M. a fair wage for his labor, and withheld money from A.S.M.'s wage payment to cover at least some of the expenses that Sukhtipyaroge promised to provide as A.S.M.'s F-1 visa sponsor.
Under Minnesota law, earned wages are personal property. See, e.g., Glacial Plains Co–op. v. Hughes , 705 N.W.2d 195, 198 (Minn. Ct. App. 2005). The evidence establishes both that Sukhtipyaroge deprived A.S.M. of his property and that Sukhtipyaroge derived an unlawful financial benefit for himself by underpaying A.S.M. and garnishing A.S.M.'s wages to cover expenses that Sukhtipyaroge promised to pay. Sukhtipyaroge's fraudulent acts—both bringing A.S.M. to the United States to work unlawfully and deducting Sukhtipyaroge's financial obligations from A.S.M.'s pay—are components of Sukhtipyaroge's visa fraud offense. Based on these facts established by the evidence, Sukhtipyaroge's visa fraud offense is an offense against property committed by fraud.
II. Types of Loss Under the MVRA
As enumerated in Section 3663A(b) of the MVRA, the Court's authority to award restitution is limited to certain losses. See United States v. Balentine , 569 F.3d 801, 802 (8th Cir. 2009) ("[F]ederal courts possess no inherent authority to order restitution, and may do so only as explicitly empowered by statute." (internal quotation marks omitted)); see also United States v. Maynard , 743 F.3d 374, 378-79 (2d Cir. 2014) ("The decisive issue ... is whether expenses other than those enumerated in § 3663A(b) are compensable under the MVRA. We conclude they are not."); United States v. Abdelbary , 746 F.3d 570, 575 (4th Cir. 2014) (" Section 3663A(b) ... specifically identifies the types of losses includable in a restitution award under the MVRA.").
Section 3663A(b)(1) states that "in the case of an offense resulting in damage to or loss or destruction of property of a victim of the offense," an order of restitution shall include either the "return [of] the property" or, if such a return is "impossible, impracticable, or inadequate," an award for an amount equal to "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," whichever is greater. 18 U.S.C. § 3663A(b)(1). When an offense results in bodily injury to a victim, the Court's order must include costs for necessary medical, psychiatric or psychological care; physical and occupational therapy and rehabilitation; and "income lost by such victim as a result of such offense." 18 U.S.C. § 3663A(b)(2).
This Court is authorized to award restitution for those losses caused by the specific conduct that is the basis of the offense of conviction. Hughey v. United States , 495 U.S. 411, 413, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990). To establish causation, the government must show that a particular loss would not have occurred but for the conduct underlying the offense of conviction, there is a causal nexus between the conduct and the loss, and the loss is not "too attenuated" either factually or temporally. United States v. Vaknin , 112 F.3d 579, 590 (1st Cir. 1997) (abrogated on other grounds by United States v. Anonymous Defendant , 629 F.3d 68 (1st Cir. 2010) ; accord United States v. Spencer , 700 F.3d 317, 323 (8th Cir. 2012) (citing Vaknin , 112 F.3d at 589-90 ).
Hughey addresses the limits on compensable losses under the Victim and Witness Protection Act (VWPA), a predecessor to the MVRA. The Eighth Circuit has held that those limits also apply to restitution orders under the MVRA. See United States v. Reichow , 416 F.3d 802, 805 (8th Cir. 2005).
Sukhtipyaroge's visa fraud offense, to which the MVRA applies, resulted in the loss of A.S.M.'s earned wages. This loss of property would not have occurred but for Sukhtipyaroge's commission of the visa fraud offense, and a causal nexus between A.S.M.'s loss of earned wages and Sukhtipyaroge's conduct underlying the visa fraud offense exists. Sukhtipyaroge declared in an affidavit supporting A.S.M.'s visa application that he would cover certain expenses, and Sukhtipyaroge directed A.S.M. to lie about whether he would work while in the United States. Sukhtipyaroge arranged for A.S.M. to work at the Royal Orchid in violation of the F-1 visa regulations, failed to pay A.S.M. a fair wage for his labor, and garnished A.S.M.'s wage payments to cover expenses that were Sukhtipyaroge's responsibility to cover pursuant to his sworn declaration as A.S.M.'s student visa sponsor. It is abundantly clear from the evidence that A.S.M.'s earned wage loss occurred both as a direct result and in furtherance of Sukhtipyaroge's visa fraud offense. The earned wage loss, which is not attenuated from the offense either factually or temporally, is inherently part of the offense. A.S.M. is therefore entitled to the value of lost wages under 18 U.S.C. § 3663A(b)(1).
The United States also seeks restitution for future wage loss, costs related to psychological treatment, and temporary housing costs incurred after A.S.M. was removed from Sukhtipyaroge's control. The United States relies on the second category of losses enumerated by the MVRA, losses for "an offense resulting in bodily injury to a victim." 18 U.S.C. § 3663A(b)(2). Because the Court found that, in committing the harboring offense, Sukhtipyaroge intentionally created a substantial risk that A.S.M. would sustain serious bodily injury and that A.S.M. sustained serious bodily injury, the United States contends that Sukhtipyaroge's offense resulted in bodily injury as defined by the MVRA.
United States Sentencing Guidelines Sections 2L1.1(b)(6) and 2L1.1(b)(7) provide enhancements to a defendant's base offense level for harboring an unlawful alien if the offense involved intentionally or recklessly creating a substantial risk that another person would sustain serious bodily injury and if another person did, in fact, sustain serious bodily injury. At the sentencing hearing, the Court found by a preponderance of the evidence that these enhancements apply here because the Sentencing Guidelines define "serious bodily injury," as having "occurred if the offense involved conduct constituting criminal sexual abuse." USSG § 1B1.1 cmt. n.1(M) (citing 18 U.S.C. § 2242 ).
Although the United States appears to concede that the MVRA does not apply to Sukhtipyaroge's harboring offense, the United States argues that Sukhtipyaroge committed an offense resulting in bodily injury because his entire scheme, which includes both the harboring and the visa fraud offenses and any relevant conduct, is a single fraudulent scheme. As such, the United States argues, restitution can be ordered for any loss caused by any act that is a part of the broad scheme to defraud. But "[i]n the absence of a conviction for an offense that involves as an element a scheme, conspiracy or pattern of criminal activity, restitution is limited to the offense of conviction." United States v. Farish , 535 F.3d 815, 826 (8th Cir. 2008). Neither of Sukhtipyaroge's offenses of conviction, visa fraud nor harboring an alien, includes as an element a scheme, conspiracy or pattern of criminal activity. And the Court may not award restitution that includes losses resulting from relevant conduct, even if the Court considers relevant conduct in connection with sentencing pursuant to the United States Sentencing Guidelines. See United States v. Carruth , 418 F.3d 900, 902 (8th Cir. 2005) (citing United States v. Baker , 25 F.3d 1452, 1456-57 (9th Cir. 1994) ); accord United States v. Sheldon Tree Top , 931 F.3d 720, 720–21, No. 18-1816, 2019 WL 3366601, at *1 (8th Cir. July 26, 2019) (slip op) (holding that a district court "may only order restitution for the offense to which [a defendant has] pled guilty, not for other charged or suspected conduct" (internal quotation marks omitted)). The Court is limited to awarding restitution only for losses caused by the conduct that is the basis for Sukhtipyaroge's visa fraud offense. Hughey , 495 U.S. at 413, 110 S.Ct. 1979.
Whether Sukhtipyaroge's visa fraud offense is an offense resulting in bodily injury for the purposes of the MVRA, and whether A.S.M.'s resulting losses are compensable under Section 3663A(b)(2), are therefore questions of causation. See Spencer , 700 F.3d at 323. The United States correctly observes that, but for the visa fraud, A.S.M. would not be in the United States, A.S.M. would not have been subject to Sukhtipyaroge's control, and A.S.M. would not have been sexually abused by Sukhtipyaroge under those circumstances. Further, as the Court found at the sentencing hearing, Sukhtipyaroge accomplished criminal sexual abuse of A.S.M. by placing him in fear. Sukhtipyaroge leveraged his power as A.S.M.'s visa sponsor and threatened to withhold financial and other resources to cause A.S.M. to engage in sexual acts. The Court found credible A.S.M.'s testimony that he feared for his immigration status and that he would no longer receive food and shelter, which Sukhtipyaroge declared that he would provide in a sworn affidavit supporting A.S.M.'s visa application.
See 18 U.S.C. § 2242(1) (providing that a person commits criminal sexual abuse by knowingly "caus[ing] another person to engage in a sexual act by threatening or placing that other person in fear").
In short, through his commission of visa fraud, Sukhtipyaroge intentionally created conditions that rendered A.S.M. utterly dependent and uniquely vulnerable. These conditions, in turn, created the essential element—fear—that caused A.S.M. to become a victim of sexual abuse. The causal nexus between Sukhtipyaroge's commission of visa fraud and the sexual victimization of A.S.M. is plain. The evidence establishes that Sukhtipyaroge's visa fraud is an offense resulting in bodily injury under 18 U.S.C. § 3663A(b)(2).
III. Amount of Restitution
A.S.M.'s "actual, provable loss" determines the amount of restitution. United States v. Frazier , 651 F.3d 899, 905 (8th Cir. 2011). In performing its analysis, the Court makes a "reasonable estimate" of the amount of loss actually caused by the defendant's offense. United States v. Boesen , 541 F.3d 838, 851 (8th Cir. 2008). Restitution need not be calculated with exact precision, United States v. Wirth , 719 F.3d 911, 917 (8th Cir. 2013), particularly when the restitution amount is difficult to calculate, United States v. Carpenter , 841 F.3d 1057, 1060 (8th Cir. 2016). The United States has the burden to prove, by a preponderance of the evidence, the restitution amount. Frazier , 651 F.3d at 903 (citing 18 U.S.C. § 3664(e) ).
The United States's requests for restitution fall into three general categories: (A) earned wage loss; (B) costs associated with psychological treatment and rehabilitative care for A.S.M., including treatment, medication, and future wage loss; and (C) temporary housing. The Court separately addresses each category.
A. Earned Wage Loss
As addressed above, A.S.M. is entitled to the value of earned wages lost as a result of Sukhtipyaroge's visa fraud. 18 U.S.C. § 3663A(b)(1). The parties dispute the manner of calculating the full amount of A.S.M.'s earned wage loss. Specifically, they dispute the number of hours that A.S.M. worked at the Royal Orchid restaurant, the applicable wage rate for the work A.S.M. performed, and whether A.S.M. is entitled to liquidated damages under the Fair Labor Standards Act. The Court addresses each dispute in turn.
1. Hours Worked
The United States presented evidence including the testimony of A.S.M. and Kristin Tout-Nava and wage reconstruction models prepared by Tout-Nava. Based on this evidence, the United States argues that A.S.M. worked an average of 56 hours per week between November 2015 and June 2016—the period of time when A.S.M. was attending school. And, according to the United States, A.S.M. worked an average of 69 hours per week between July 2016 and July 2017—the period after A.S.M. stopped attending school until the restaurant permanently closed. Tout-Nava's updated wage reconstruction evidence reflects these averages. (See Government Exhibit 14.)
Sukhtipyaroge challenges the sufficiency of the evidence to support the United States's calculation of the number of hours that A.S.M. worked at the Royal Orchid. Citing testimony provided by the Royal Orchid's cook, Sukhtipyaroge asserts that A.S.M. worked no more than four hours per day, typically for 26 days each month. This amounts to slightly more than 100 hours monthly.
Neither party produced work schedules, logs, or payroll records reflecting the hours worked by A.S.M. or any other Royal Orchid employees as it is undisputed that such records do not exist. Without records documenting the number of hours A.S.M. worked, the Court must assess the credibility of each witness, A.S.M. and the Royal Orchid's cook. Cf. Wirth , 719 F.3d at 917 (commenting that the defendant is "hardly in a position to insist that the district court's restitution award be calculated with Pythagorean precision" in light of his "abysmal bookkeeping records"). The Court finds the testimony of A.S.M. credible. A.S.M.'s detailed testimony establishes that, while he was attending school, he arrived at the Royal Orchid for work at the end of the school day, or around 2:45 p.m. After he stopped attending school, A.S.M. credibly testified that he would arrive at the Royal Orchid before it opened each day at 11:00 a.m. This contradicts the cook's assertion that A.S.M. arrived for work around 6:00 p.m. or 6:30 p.m. Further, the cook did not know the time of A.S.M.'s departure at night because her workday ended at 9:00 p.m., before A.S.M.'s workday ended. The weight of the evidence demonstrates that A.S.M. worked at the restaurant at least 40 hours per week before he stopped attending school in June 2016; and he worked even longer hours after he stopped attending school.
The United States has proven by a preponderance of the evidence that A.S.M. worked approximately 56 hours per week before he stopped attending school and approximately 69 hours per week after he no longer attended school. Accounting for periods of time that the restaurant was closed, such as Thanksgiving Day, Christmas Day, a two-week summer-vacation closure, along with one week when A.S.M.'s hand injury prevented him from working, a reasonable estimate of the hours that A.S.M. worked during the 21 months that he was employed at the Royal Orchid is approximately 5,375 hours. Approximately 1,300 of those hours were overtime.
The United States also argues that A.S.M. is entitled to restitution for wages earned while performing work at Sukhtipyaroge's home. But the United States cites neither legal nor record support for this argument. Nor is there sufficient evidence to determine the nature and quantity of any such work that A.S.M. performed at Sukhtipyaroge's home. Consequently, the Court's reasonable estimate does not account for any hours worked outside of the Royal Orchid restaurant.
2. Wage Rate
The Court next addresses the parties' dispute as to the applicable wage rate. Sukhtipyaroge argues that the applicable hourly wage for calculating the wages he owes A.S.M. is Minnesota's minimum wage for small employers. Between August 1, 2015 and July 31, 2016, Minnesota's minimum wage for employees of a "small employer" was $7.25. Minn. Stat. § 177.24, subd. 1(b)(2). Between August 1, 2016 and January 1, 2018, the "small employer" minimum wage was $7.75. Id.
The restitution sought by the United States relies on a higher wage rate. At the evidentiary hearing, Tout-Nava testified that, in a case involving a victim of trafficking, the Trafficking Victims Protection Act (TVPA), 18 U.S.C. § 1581 et seq. , may not limit restitution to the minimum wage. Instead, she explained, "it may be appropriate to use a higher wage, the going rate for that labor classification for that particular geographic area." The United States advocates that the Court calculate the wages owed to A.S.M. using a "25% weighted [hourly] rate of pay" in the amounts of $9.89 and $9.96.
According to the United States, this wage rate is derived from data from the Bureau of Labor Statistics for the classification of "various restaurant occupations."
The TVPA entitles a victim of trafficking to the "full amount of the victim's losses" plus a defendant's "ill-gotten gains." See In re Sealed Case , 702 F.3d 59, 66 (D.C. Cir. 2012) (citing 18 U.S.C. § 1593 ) (internal quotation marks omitted). But the victims' losses provisions of the TVPA apply "only to cases in which a defendant has been convicted of an offense under the [TVPA]." United States v. Fu Sheng Kuo , 620 F.3d 1158, 1164 (9th Cir. 2010) (citing 18 U.S.C. § 1593(a) ). Because Sukhtipyaroge was not convicted of a TVPA offense, this Court lacks authority to award restitution that accounts for Sukhtipyaroge's "ill-gotten gains" by applying a wage rate that is higher than one A.S.M. was legally entitled to receive.
The Court derives its authority to award restitution from the MVRA, which limits restitution to a "victim's provable actual loss" as a result of the defendant's unlawful conduct. United States v. Chalupnik , 514 F.3d 748, 754 (8th Cir. 2008). As the United States has not established a legal basis to apply a higher wage rate, the Court calculates the wages owed to A.S.M. for the work performed at the Royal Orchid using the minimum wage for a "small employer" in Minnesota during the time period at issue.
3. Liquidated Damages
The parties also dispute whether the Court should award A.S.M. liquidated damages pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 203 et seq. Tout-Nava's wage reconstruction evidence accounts for liquidated damages pursuant to the FLSA, and the United States argues that "[n]othing in the MVRA precludes the application of liquidated damages." The Court may order restitution only as expressly provided by statute. Balentine , 569 F.3d at 802. The Court's authority to award restitution under the MVRA is limited to "the victim's provable actual loss , even if more punitive remedies would be available in a civil action." Chalupnik , 514 F.3d at 754 (emphasis added). By contrast, the TVPA expressly provides that, in addition to the victim's actual losses, the district court's restitution calculation must "include the greater of the gross income or value to the defendant of the victim's services or labor or the value of the victim's labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act." 18 U.S.C. § 1593(b)(3). This distinction between the TVPA and the MVRA reflects Congress's intent to differentiate criminal penalties for different types of offenses. See Fu Sheng Kuo , 620 F.3d at 1165 (comparing the provisions of the MVRA with those of the TVPA).
The position of the United States invites the Court to apply the provisions of the TVPA to the Court's award of restitution under the MVRA. But the United States cites no statutory or other authority for the Court to grant such an award. And the Court's research has located none. As the Ninth Circuit reasoned in Fu Sheng Kuo :
If the government wanted to seek penalties under the [TVPA], it was required to prosecute Defendants under the [TVPA]. Having chosen to prosecute Defendants [for a different offense], it may seek only the penalties authorized by law for violations of that crime. The government has cited no authority—and we know of none—for the proposition that the district court may exceed its statutory authority simply because of the government's assertion that "defendants engaged in the same sort of behavior" as a crime of which Defendants were not convicted.
Id. Because the Court lacks the authority to award restitution beyond the provisions of the MVRA, the Court's restitution award here does not include liquidated damages.
In summary, the Court calculates restitution for A.S.M.'s lost wages by multiplying the Court's estimate of the hours that A.S.M. worked at the Royal Orchid (including overtime hours multiplied by 1.5) by the applicable minimum hourly wage, and then subtracting $125 per month (between November 2015 and July 2017) to account for the amount that Sukhtipyaroge paid to A.S.M. in cash. Based on this calculation, a reasonable estimate of restitution for A.S.M.'s lost wages is $43,155.
The applicable minimum hourly wage is $7.25 from August 1, 2015 until July 31, 2016, and $7.75 from August 1, 2016, until the restaurant closed in July 2017.
B. Costs Related to Psychological Care and Rehabilitation
The United States requests $22,965 payable to Face to Face Health & Counseling for the cost of psychological treatment, $1,320 payable to A.S.M. for future medication costs, and $20,508.80 payable to A.S.M. for future wage loss related to ongoing treatment.
As Sukhtipyaroge's offense is one resulting in bodily injury to A.S.M., see 18 U.S.C. § 3663A(b)(2), A.S.M. is entitled to restitution for the cost of necessary psychiatric and psychological care, 18 U.S.C. § 3663A(b)(2)(A). In support of its restitution request, the United States presented the testimony of A.S.M.'s therapist, William Carlson. Carlson testified credibly about A.S.M.'s clinical diagnosis, A.S.M.'s need for past and ongoing treatment, and the costs associated with treatment and medication. Carlson prepared a report that calculated the projected cost of treatment and medication through December 2019, based on Carlson's assessment as to the necessary length and frequency of treatment. (See Government Exhibit 13.) This report reflects a total cost of $22,965 for psychotherapy services incurred by Face to Face Health & Counseling, and a total out-of-pocket cost of $1,320 incurred by A.S.M. for medication. The United States has established by a preponderance of the evidence that A.S.M. has undergone and will continue to undergo treatment to address post-traumatic stress disorder caused by Sukhtipyaroge's sexual abuse. The evidence presented supports an award of restitution in the amount of $22,965 payable to Face to Face Health & Counseling for the cost of treatment and in the amount of $1,320 payable to A.S.M. for the cost of medication.
Sukhtipyaroge disputes the Court's authority to award restitution to third-party payors when A.S.M. incurred no expense. This argument is unavailing. When a third party compensates a victim who suffers bodily injury for the victim's loss, that third party is entitled to restitution for any such expense. United States v. Schmidt , 675 F.3d 1164, 1169 (8th Cir. 2012) (citing 18 U.S.C. § 3664(j)(1) ). Face to Face Health & Counseling covered the cost of A.S.M.'s necessary psychological care because A.S.M. lacked the means to pay this expense. Face to Face Health & Counseling is entitled to restitution to recoup this cost.
As to future wage loss, Carlson testified that A.S.M. is unable to work more than half-time (20 hours per week) because of his ongoing mental health care. For this reason, the United States seeks an award of restitution for A.S.M. in the amount of $20,508.80 for his income lost in 2019 as a result of Sukhtipyaroge's offense. See 18 U.S.C. § 3663A(b)(2)(C). The MVRA plainly provides for compensation attributable to past, present, and future income loss resulting from an offense. United States v. Oslund , 453 F.3d 1048, 1063 (8th Cir. 2006). The MVRA's requirement that restitution be based on a victim's "provable actual loss" remains. Chalupnik , 514 F.3d at 754.
The United States requests restitution of $20,508.80 to compensate A.S.M. for "1040 hours at the state minimum wage for a large business doubled as provided for by statute." This estimate of 1040 hours appears to represent 20 hours of work per week that A.S.M. is unable to perform because he will be undergoing treatment for 52 weeks in 2019. The United States advocates an hourly wage rate of $9.86, the current minimum wage rate for a large employer in Minnesota. Carlson's testimony establishes that, although A.S.M. attempted to work full-time while undergoing treatment, A.S.M. cannot satisfactorily perform full-time paid work and fully engage in treatment at the same time. Based on credible evidence of A.S.M.'s work history, the Court agrees that the minimum wage for a large employer in Minnesota represents a reasonable estimate of the wage to which A.S.M. would be entitled if he worked full time in 2019. The United States has proven by a preponderance of the evidence that A.S.M. is entitled to a total of $10,254.40 in wages for 20 hours of work performed weekly for 52 weeks at an hourly wage rate of $9.86.
Sukhtipyaroge does not dispute the amount requested by the United States for wages lost in 2019. Rather, Sukhtipyaroge repeats arguments with which the Court has already dispensed. Specifically, Sukhtipyaroge maintains that the Court cannot award A.S.M. full-time wages when, as Sukhtipyaroge argues, A.S.M. was not working full time at the Royal Orchid. A preponderance of the evidence establishes that A.S.M. was working overtime before he was recovered from the Royal Orchid. And Sukhtipyaroge contends that the Court cannot award restitution for wages lost in 2019 because none of the conduct to which Sukhtipyaroge pleaded guilty caused A.S.M.'s wage loss. Sukhtipyaroge's offense is one resulting in bodily injury, 18 U.S.C. § 3663A(b)(2), which entitles A.S.M. to income lost as a result, including future income, see Oslund , 453 F.3d at 1063. These arguments are thus unavailing.
The Court declines the United States's invitation to "double" the amount of restitution awarded for lost future income, however. Although clarity is wanting on this aspect of its advocacy, the briefing of the United States appears to apply liquidated damages to restitution for lost wages. The Court may order restitution only as expressly provided by statute, Balentine , 569 F.3d at 802, and the United States has not identified any legal authority to support an award of liquidated damages under the MVRA.
C. Temporary Housing
Finally, the United States requests restitution in the amount of $15,029 payable to the Safe Journeys Program for temporary housing for A.S.M. following his removal from the Royal Orchid. The United States tethers this request to 18 U.S.C. § 3663A(b)(2)(B), which provides for restitution in "an amount equal to the cost of necessary physical and occupational therapy and rehabilitation." But the United States provides neither an explanation nor case law to support the conclusion that Section 3663A(b)(2)(B) authorizes restitution for housing, temporary or otherwise. The plain language of Section 3663A(b)(2)(B) does not support such an award.
Moreover, the record does not establish that that the services A.S.M. received through the Safe Journeys Program included "physical and occupational therapy and rehabilitation." The Safe Journeys Program operates the Harriet Tubman Shelter, which is where law enforcement placed A.S.M. after his removal from the Royal Orchid. A.S.M. testified that he went to the shelter because he needed a "safe place" to stay. Carlson and Special Agent Charles Bautch, who testified on behalf of the United States, also characterized the Harriet Tubman Shelter as providing a "safe place" for A.S.M. Special Agent Bautch also testified generically about the services that the shelter provides, but did not testify about any specific services that A.S.M. received. Further, the only evidence provided by the United States about the cost of A.S.M.'s stay at the shelter is an email from a Safe Journeys Program representative, (see Government Exhibit 7), stating the total cost of A.S.M.'s stay at the shelter. The email does not identify a breakdown of costs that would assist the Court in determining whether A.S.M. received services at the shelter that fall within the scope of losses recoverable under the MVRA.
On this record, the Court cannot conclude that the costs incurred by the Safe Journeys Program are recoverable as restitution under the MVRA. It is the burden of the United States to prove "actual loss" by a preponderance of the evidence. Tree Top , 931 F.3d at 720–21, 2019 WL 3366601, at *1. The United States has not satisfied this burden. Accordingly, the Court denies the request of the United States for restitution related to temporary housing.
In supplemental briefing ordered by the Court, the United States suggests that the cost of A.S.M.'s stay at the shelter is recoverable under 18 U.S.C. § 3663A(b)(4) because it was "an expense incurred during participation in a government investigation or prosecution." But the United States does not explain any relationship between A.S.M.'s need for temporary housing and the "investigation or prosecution" of Sukhtipyaroge's offense. Nor does the record make such a relationship clear. For these reasons, this argument is unavailing.
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ORDER
Based on the foregoing analysis and all the files, records and proceedings herein, IT IS HEREBY ORDERED :
1. Defendant Pisanu Sukhtipyaroge shall pay restitution in the amount of $54,729.40 to victim A.S.M. and $22,965 to Face to Face Health & Counseling. These amounts are due and payable immediately to the Clerk of Court, who will forward payments to the recipients. The interest requirement is waived.
2. While Sukhtipyaroge is incarcerated, he must make payments toward his restitution obligation as follows: if he is working UNICOR, he shall make monthly payments of at least 50 percent of his earnings. If he is not working UNICOR, he must make quarterly payments of at least $25.
3. After Sukhtipyaroge is released from prison, he must begin making payments toward any remaining restitution obligation within 30 days after his release. Such monthly payments must be at least $100. If Sukhtipyaroge's probation officer determines that Sukhtipyaroge is able to pay more than $100 per month, Sukhtipyaroge must make restitution payments in the amount directed by his probation officer.
4. The Court will enter an amended judgment consistent with this Order.