United States v. Wilkins

680 F.Supp.3d 8

UNITED STATES of America v. Michael Jabaar WILKINS, Defendant.

Criminal Action No. 19-0390 (RC)

United States District Court, District of Columbia

Signed July 3, 2023

Amy Elizabeth Larson, Janani Iyengar, Assistant U.S. Attorneys, U.S. Attorney's Office for the District of Columbia, Criminal Division, Washington, DC, Jessica Arco, Assistant U.S. Attorney, U.S. Department of Justice, Washington, DC, for United States of America.

Christopher MacChiaroli, Silverman, Thompson, Slutkin & White, Washington, DC, for Defendant.

RESTITUTION ORDER

RUDOLPH CONTRERAS, United States District Judge

Defendant Michael Jabaar Wilkins pleaded guilty to one count of sex trafficking by force, fraud or coercion, in violation of 18 U.S.C. § 1591(a)(1). See Min. Order, July 21, 2021; Judgment at 1, ECF No. 144. The Court sentenced him to 240 months of imprisonment and 120 months of supervised release, but left restitution to be determined pending a hearing on June 27, 2023. Having heard argument at that hearing, and after reviewing the parties' sentencing submissions and supplemental submissions regarding restitution, together with the attached exhibits, the Court orders restitution in the amount of $1,250 to victim O.R. and $661,180 to victim J.J.

18 U.S.C. § 1593 requires an order of restitution for violations of section 1591. See § 1593(a). Specifically, the Court must "direct the defendant to pay the victim . . . the full amount of the victim's losses." § 1593(b)(1). As relevant here, those losses include "medical services relating to physical, psychiatric, or psychological care," "lost income," and "any other relevant losses incurred by the victim." 18 U.S.C. § 2259(c)(2); see § 1593(b)(3) (incorporating § 2259(c)(2)). In addition, the restitution amount "shall . . . include the greater of the gross income or value to the defendant of the victim's services or labor[.]" § 1593(b)(3); see In re Sealed Case, 702 F.3d 59, 66 (D.C. Cir. 2012) ("Section 1593 requires that the defendant pay the victim 'the full amount of the victim's losses,' defined as the sum of two components: (1) ill-gotten gains plus (2) the 'full amount of the victim's losses[.]' " (internal citation omitted)).

The order of restitution "shall be issued and enforced in accordance with [18 U.S.C. §] 3664 in the same manner as an order under [18 U.S.C. §] 3663A." § 1593(b)(2). Under section 3664, the court is to determine the victim's losses "without consideration of the economic circumstances of the defendant." § 3664(f)(1)(A). "Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence" and "[t]he burden of demonstrating the amount of the loss sustained by the victim as a result of the offense shall be on the attorney for the Government." § 3664(e). "No victim shall be required to participate in any phase of a restitution order." § 3664(g)(1). However, the amount of restitution need not be "proven with exactitude;" rather "the district court's charge is to estimate, based upon the facts in the record, the amount of the victim's loss with some reasonable certainty." In re Sealed Case, 702 F.3d at 66 (cleaned up). While "[t]he Court may not order restitution for losses that are unsubstantiated or speculative," United States v. Williams, 946 F. Supp. 2d 112, 117 (D.D.C. 2013) (citing United States v. Cienfuegos, 462 F.3d 1160, 1168-69 (9th Cir. 2006)), the relevant question is whether "the basis for reasonable approximation is at hand." United States v. Boutros, No. 20-cr-82, 2020 WL 6683064, at *2 (D.D.C. Nov. 12, 2020) (quoting United States v. Savoie, 985 F.2d 612, 617 (1st Cir. 1993)); see also United States v. Fair, 699 F.3d 508, 515 (D.C. Cir. 2012) (requiring an "evidentiary basis" on which to calculate restitution).

The signed plea agreement provides that Defendant will "pay restitution to all victims associated with [his] conduct charged in all counts of the Indictment, which includes dismissed counts." Plea Agreement at 10, ECF No. 102. The superseding indictment charged 10 counts and refers to victims J.J., O.R. and L.H., see Superseding Indictment at 1-2, ECF No. 61, but the Government does not seek restitution for L.H. because she "actively avoided contact with the prosecution team," so the Government "has been unable to come up with an estimated restitution figure for her with reasonable certainty, as required." Gov't's Rest. Req. at 9 n.7, ECF No. 140.¹ The Government seeks restitution in the amount of $1,250 for O.R. and $931,380 for J.J. The Court considers each request in turn.

A. Restitution as to O.R.

As to O.R., the Government requests $1,250 in lost income for five days she spent helping the Government prepare for this case. Id. at 8; see Gov't's Rest. Req., Attch. B, ECF No. 140-2 (table of case preparation meetings with O.R. showing five days of law enforcement interviews, grand jury testimony, trial preparation, and related travel). The $1,250 figure was calculated using an hourly derivative of the $65,000 annual salary she earned at the time. See Gov't's Rest. Req., Attch. D, ECF No. 140-4 (text message from O.R. confirming $65,000 annual salary). Defendant appears to agree that this amount is appropriate as to O.R. See Def.'s Suppl. Mem. Rest. at 3, ECF No. 147 (quoting passage from defense counsel's email to the Government offering to agree that O.R. is entitled to $1,250.70 in restitution). The Court thus finds that the Government has demonstrated by a preponderance of the evidence that O.R. is entitled to $1,250.

B. Restitution as to J.J.

The parties disagree sharply as to the restitution amount to which J.J. is entitled. According to the signed statement of offense accompanying the plea agreement, Defendant trafficked J.J. between January 2011 and November 2017. Statement of Offense at 1, ECF No. 101. The Government seeks $15,000 in medical expenses, $680 in lost wages, $700 in other relevant losses, and $915,000 in gross income generated. Gov't's Rest. Req. at 3, 7. Defendant "requests that he not be ordered to pay a million dollars in restitution based on the insufficient record submitted by the Government." Def.'s Suppl. Mem. Rest. at 5; see also id. at 3 (quoting email from defense counsel to the Government offering to agree on restitution of $4,000 as to J.J.).

1. Medical Expenses

The Government submits that J.J. "has had countless medical appointments and operations as a result of the defendant assaulting her inside a hotel room in February 2012, resulting in a fractured finger and vision loss in her right eye." Gov't's Rest. Req. at 3. The signed statement of offense explains that, during this assault, Defendant "struck J.J. multiple times in the face and head, causing her to lose consciousness." Statement of Offense ("SOO") at 1-2, ECF No. 101. She regained consciousness at a hospital in Atlanta, Georgie with a "fractured finger." Id. at 2. "She also has endured ongoing problems with one of her eyes, including some loss of vision." Id. A summary of a telephonic interview that the Government conducted with J.J. on February 7, 2023 in anticipation of sentencing in this case provides evidence of the out-of-pocket expenses J.J. incurred to treat these injuries. Gov't's Rest. Req., Attch. A, ECF No. 140-1. Specifically, J.J. stated that she "had to pay out of her pocket approximately $15,000 for surgery on her eye and the cost of a prosthetic eye," and referred to numerous related "doctors visits." Id. at 1. These out-of-court statements are admissible for purposes of restitution proceedings, see In re Sealed Case, 702 F.3d at 62 (D.C. Cir. 2012) (affirming restitution order based in part on grand jury testimony). In conjunction with Defendant's admissions that he committed the February 2012 assault and that it caused J.J. to go to the hospital and resulted in "ongoing problems with one of her eyes," SOO at 1-2, the Court finds by a preponderance of the evidence that J.J. is entitled to $15,000 in restitution for medical expenses.

2. Lost Wages

The Government seeks $680 in lost wages that J.J. incurred in order to help the Government prepare for this case. Gov't's Rest. Req. at 3. According to a case preparation table submitted by the Government, J.J. participated in law enforcement interviews on five days. See Gov't's Rest. Req., Attch. B, ECF No. 140-2. According to the interview summary from her February 2023 interview with the Government, J.J. missed work in order to participate in these law enforcement interviews, causing her to sacrifice the $17 hourly wage she otherwise would have made during her eight-hour workdays. See id., Attch. A at 2. Defendant's submission does not address this evidence of lost wages, so the Court finds by a preponderance of the evidence that J.J. is entitled to $680 in restitution for lost wages.

3. Other Relevant Losses

The Government requests $700 in restitution for "other relevant losses." Gov't's Rest. Req. at 5; 18 U.S.C. § 2259(c)(2)(F). Specifically, the Government states that Defendant destroyed two of J.J.'s cell phones: an iPhone valued at $500 in January 2013, and an Android valued at $200 in "approximately 2014 or 2015." Gov't's Rest. Req. at 4-5. As to the iPhone, the February 2023 interview summary reflects J.J.'s description that Defendant "damaged this phone so that it was no longer working . . . during the documented Charlottesville, VA incident." Id., Attch. A at 1. The "Charlottesville, VA incident" is an apparent reference to a violent altercation between Defendant and J.J., detailed in the statement of offense, in which Defendant "punched her in the face with a closed fist," "pushed [her] into a countertop next to the sink, causing [her] to sustain a large bruise to her leg," and then "stomped on her leg with his foot, leaving a footprint on her leg." SOO at 2. This altercation occurred in a hotel room after Defendant "demanded money from J.J." and became enraged when he "found out that J.J. had lied...