government’s publicly filed restitution position paper for colby fire

8/10/2019 Government’s publicly filed restitution position paper for Colby Fire

http://slidepdf.com/reader/full/governments-publicly-filed-restitution-position-paper-for-colby-fire 1/33

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ANDRÉ BIROTTE JR.United States AttorneyROBERT E. DUGDALEAssistant United States AttorneyChief, Criminal DivisionJOSEPH O. JOHNS (Cal. Bar No. 144524)Chief, Environmental Crimes Section

AMANDA M. BETTINELLI (Cal. Bar No. 233927)Assistant United States AttorneyEnvironmental Crimes Section1300 United States Courthouse312 North Spring StreetLos Angeles, California 90012Telephone: (213) 894-4536Facsimile: (213) 534-4300E-mail: [email protected]

Attorneys for PlaintiffUNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Plaintiff,

v.

CLIFFORD EUGENE HENRY, JR.,

STEVEN ROBERT AGUIRRE, andJONATHAN CARL JARRELL

Defendants.

No. CR 14-55-GW

GOVERNMENT‟S SENTENCING POSITIONREGARDING RESTITUTION; SUPPORTINGEXHIBITS AND DECLARATIONS FILEDUNDER SEAL

Hearing Dates: October 20, 2014Hearing Time: 8:00 a.m.Location: Courtroom of the

Hon. George H. Wu

Plaintiff United States of America, by and through its counsel

of record, the United States Attorney for the Central District of

California and Assistant United States Attorneys Joseph O. Johns and

Amanda M. Bettinelli, hereby files its Sentencing Position Regarding

Restitution. The supporting exhibits and declarations have been

filed separately under seal.



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This request is based upon the attached memorandum of points

and authorities, the files and records in this case, and such

further evidence and argument as the Court may permit.

Dated: October 16, 2014 Respectfully submitted,

ANDRÉ BIROTTE JR.United States Attorney

ROBERT E. DUGDALEAssistant United States AttorneyChief, Criminal Division

/s/JOSEPH O. JOHNSAssistant United States Attorney

Chief, Environmental Crimes SectionAttorneys for PlaintiffUNITED STATES OF AMERICA



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MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

A. THE GOVERNMENT’S POSITION

Defendants CLIFFORD EUGENE HENRY, JR., STEVEN ROBERT AGUIRRE,

and JONATHAN CARL JARRELL (“defendants”) were each convicted of

Count One of the Amended Indictment, which alleged a violation of 18

U.S.C. § 1855 -- Setting Timber Afire, among other related

misdemeanor violations. The Mandatory Victim Restitution Act of

1996 (“MVRA”) requires a district court judge to order restitution

for victim losses that are the direct result of crimes that

constitute offenses against property. Section 1855 is an offense

against property, and as such, this Court must order restitution for

all victim losses directly resulting from defendants‟ conduct. This

includes those losses that are a natural result of defendants

criminal conduct, those losses that would not have occurred if the

defendants had acted lawfully (by not starting an illegal campfire),

and even those losses that are “one step removed” from defendants‟

criminal conduct. The government must prove victim losses to this

Court by a preponderance of the evidence.

B.

THE DEFENDANTS’ POSITION

All three defendants take the position that the determination

of restitution under the MVRA in this case is “impracticable”

because the number of identifiable victims is too large. See Def.

Jarrell‟s Position Regarding Sentencing, page 29, Court Doc. 293;

see Def. Aguirre‟s Position Regarding Sentencing, page 8, Court Doc.



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301; and see Def. Henry‟s Sentencing Position, pages 18-19, Court

Doc. 299. In response, the government submits that the

determination of appropriate restitution in this case is not

impracticable, but rather, just difficult and time consuming.

Because the United States Probation Office did not have sufficient

time and resources to conduct a complete MVRA restitution

determination in the time permitted, the USAO has undertaken the

difficult task of contacting and coordinating with the victims and

their insurers, and collecting and collating documentation of the

damages recoverable under the MVRA – within the time period allowed

by this Court.

Defendant Jarrell further contends that the majority of the

damages and costs incurred by the victims are impermissible

consequential damages, and that defendant has had an insufficient

opportunity to challenge the evidence of damages/costs or provide an

alternative loss calculation. Defendant Jarrell‟s consequential

damages argument is addressed in more detail below. Defendant

Jarrell‟s claim of “insufficient opportunity” to respond to the

government‟s restitution request has been ameliorated by the nearly

three months that have elapsed since the government first filed such

evidence and defendant first raised such claim. See Government‟s

Combined Position Regarding Presentence Report and Sentencing

Position for Defendant Jonathan Carl Jarrell and Exhibits Filed in

Supported Thereof, Court Doc. 292 filed on 7/23/14 (and all related

manual filings under seal, namely, Court Docs. 295, 296, 207, 304,

314, 315, 318, and 321); and see Government‟s Request to Bifurcate

and Continue Defendants‟ Restitution Hearings, Court Doc. 305 filed

on 7/30/14. Moreover, if defendants require additional time to



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review and respond to this supplemental restitution submission and

related filings, the government does not oppose a continuance of the

October 20, 2014 restitution hearing date to afford such

opportunity.

Finally, defendant Henry argues that applicability of the MVRA

in this case turns upon his subjective intent and whether or not he

“intended” to commit a crime against property. This contention is

addressed in detail below.

II. APPLICABLE LAW AND ARGUMENT

A. THE MANDATORY VICTIM RESTITUTION ACT

A district court may not order a defendant to pay restitution

to the victims of his crime unless authorized by statute to do so.

United States v. Andrews, 600 F.3d 1167, 1172 (9th Cir. 2010);

United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007).

The two primary restitution statutes in the federal justice system

are the Victim and Witness Protection Act (“VWPA”), 18 U.S.C. §§

3663-3664, and the Mandatory Victim Restitution Act of 1982

(“MVRA”), 18 U.S.C. §§ 3663A. The VWPA authorizes restitution in

connection with a number of offenses, primarily violations of Title

18 of the United States Code, while the MVRA requires restitution

for certain crimes involving violence, fraud and deceit, and

offenses against property. Restitution under the VWPA is

discretionary. Restitution under the MVRA is mandatory. The

government submits that the MVRA mandates an order of full

restitution to the victims of defendants‟ crime of Setting Timber

Afire, in violation of 18 U.S.C. § 1855.



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1. The primary goal of the MVRA is to make victims ofcrime whole

The primary and overarching goal of the MVRA is to makevictims of crime whole. In achieving this objective,Congress intended district courts to engage in anexpedient and reasonable restitution process, with

uncertainties resolved with a view toward achievingfairness to the victim.

United States v. Gordon, 393 F.3d 1044, 1048 (9th Cir. 2004).

Congress‟s stated intent behind the MVRA is to force offenders to

“pay full restitution to the identifiable victims of their crimes”

for the purpose of accomplishing the following objectives: (1)

ensuring that the loss to crime victims is recognized; (2) ensuring

that victims receive the restitution that they are due; and (3)

ensuring that criminal offenders realize the damage caused by their

offenses and pay the debts they owe to their victims as well as to

society. See United States v. Cienfuegos, 462 F.3d 1160, 1165 (9th

Cir. 2006), quoting Senate Report No. 104-179, at 12 (1996), as

reprinted in 1996 U.S.C.C.A.N. 924, 925. The government submits

that in seeking to ensure full restitution to the victims of an

offense, a district court should be guided by the remedial purposes

underlying the MVRA and flexible in accounting for the victims‟

complete losses. See Gordon, supra, 393 F.3d at 1053.

2. A violation of 18 U.S.C. § 1855 is an “offenseagainst property” for purposes of the MVRA

The MVRA mandates that a district court order restitution in

crimes involving offenses against property under Title 18 of the

United States Code, such as 18 U.S.C. § 1855. See 18 U.S.C. §

3663A(c)(1)(A)(ii); see also United States v. Barton, 366 F.3d 1160,

1166 (10th Cir. 2004). Defendant Jarrell concedes that violations

of Section 1855 are a crime involving an offense against property



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for purposes of the MVRA. See Def. Jarrell‟s Position Regarding

Sentencing, page 29, Court Doc. 293. Defendant Aguirre takes no

position, at this time, with respect to this issue. See Def.

Aguirre‟s Position Regarding Sentencing, page 8, Court Doc. 301.

Defendant Henry, on the other hand, seems to argue that

applicability of the MVRA in this case turns upon his subjective

intent and whether or not he “intended” to commit a crime against

property. See Def. Henry‟s Sentencing Position, pages 18-19, Court

Doc. 299. Beyond the simple argument, defendant Henry provides no

statutory or legal support for his position – nor is government

counsel able to find any statutory or legal basis to support such

position.

In point of fact, in a case strikingly similar to that before

this Court, the Tenth Circuit Court of Appeals noted as a

preliminary matter that, “[i]t is uncontroverted that … [the

defendant] pled guilty to an „offense against property,‟ i.e.,

setting fire to inflammable materials on federal property ….” Id.

at 1166. The Tenth Circuit‟s analysis was silent regarding the

defendant‟s subjective intent in committing the Section 1855

offense. Given the obvious purpose of Section 1855, to prevent

accidental and intentional wildfires and the devastating

consequences of such fires, the government contends that the

defendants‟ convictions for 18 U.S.C. § 1855 [Setting Timber Afire]

as charged in Count One of the Amended Indictment constitutes an

offense against property for purposes of mandatory restitution under

the MVRA.1

1 The Tenth Circuit decision in Barton comports with theunpublished Ninth Circuit Court of Appeals decision in United Statesv. Butcher, previously referenced by this Court during trial for



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3. Definition of Victim

After determining that the MVRA is applicable to the offense of

conviction, the district court should begin by identifying the

victims of the defendants‟ conduct. United States v. Frazier, 651

F.3d 899, 903 (8th Cir. 2011). The MVRA defines the term “victim”

as “a person directly and proximately harmed as a result of the

commission of an offense for which restitution may be ordered,

including an “offense against property.” See 18 U.S.C. §

3663A(a)(2). There are several categories of victims that were

directly and proximately harmed as a result of defendants‟ criminal

offense.

a. The United States Forest Service is a victim

The United States Forest Service (“USFS”) was directly and

proximately harmed as a result of defendants‟ commission of an

offense against property, Setting Timber Afire, in violation of 18

U.S.C. § 1855. Not only did the USFS suffer burned and destroyed

forest acreage, but it also suffered substantial fire suppressionand response costs, post-fire evaluation and stabilization costs to

prevent further damage to forest lands and to protect human health

and safety, and significant mud flow and sediment removal costs. It

is clear that the federal government can be a “victim” under the

MVRA. United States v. Quarrell, 310 F.3d 664, 677 (9th Cir. 2002);

see also United States v. De la Fuente, 353 F.3d 766, 772-773 (9th

Cir. 2003) (United States Postal Service is an MVRA victim for

another legal issue, which held that restitution for firesuppression costs were appropriately ordered in a Section 1855offense. See 377 Fed. Appx. 628, 629 (9th Cir. 2010). As with theTenth Circuit‟s Barton analysis, the Ninth Circuit was not concernedwith defendant‟s “subjective intent” in committing the Section 1855analysis, but rather, with the objective “causal chain” connectingdefendant‟s criminal offense and the fire suppression costs.



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purposes of lost employee work hours and evacuation costs associated

with anthrax letter mailing). In fact, the federal government has

specifically been held to be a victim under the MVRA for the purpose

of determining the amount of restitution owed for losses caused by a

resulting forest fire started in violation of 18 U.S.C. § 1855. See

Barton, supra, 366 F.3d at 1167; see also United States v. Butcher,

377 Fed. Appx. 628, 629 (9th Cir. 2010).

b. Local government agencies are victims

Los Angeles County, the City of Azusa, and the City of Glendora

were directly and proximately harmed as a result of defendants‟

commission of an offense against property, Setting Timber Afire, in

violation of 18 U.S.C. § 1855. The Cities of Azusa and Glendora

initially suffered losses in responding to the fire by evacuating

neighborhood residents in harm‟s way, setting up an incident command

center, and providing material support to firefighting personnel.

Later, both cities incurred further losses in mitigating and

repairing erosion and mud flow damages caused by rainfall in the

burned areas. The Los Angeles County Fire Department suffered

losses in responding to, and suppressing, the actively burning fire.

Later, the Los Angeles County Department of Public Works suffered

losses in mitigating and repairing erosion and mud flow damages

caused by rainfall upon the burned and de-vegetated forests.

The Ninth Circuit Court of Appeals has already held that local

emergency response agencies are proper MVRA victims for purposes of

responding to a criminal anthrax hoax and conducting cleanup and

decontamination efforts as a result of that criminal hoax. See De

La Fuente, supra, 353 F.3d at 768 and 773. In fact, district courts

have regularly awarded restitution for cleanup and remediation costs



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resulting from a defendant‟s criminal conduct. Brock-Davis, supra,

504 F.3d at 1000.

c.

Owners of damaged or destroyed homes

More than a dozen local residents were directly and proximately

harmed when their homes suffered smoke or fire damage as the result

of defendants‟ commission of an offense against property, Setting

Timber Afire, in violation of 18 U.S.C. § 1855. In addition, a

number of insurance companies also suffered losses as the result of

the residential smoke and fire damages they reimbursed (or

compensated) to their insureds as the result of defendants‟ offense.

“Under the MVRA, the district court must award restitution for „any

offense … against property under [United States Code Title 18] … in

which an identifiable victim suffered a physical injury or pecuniary

loss.” United States v. Burks, 678 F.3d 1190, 1198 (10th Cir.

2012), quoting 18 U.S.C. § 3663A(c)(1). Under the MVRA, both the

owner of the property damaged by defendants‟ offense, and the

property owner‟s insurance company, are identifiable victims

requiring mandatory restitution. See e.g., id. [under the MVRA, the

owner of a stolen vehicle is entitled to restitution for the

insurance deductible paid and the insurance company is entitled to

restitution for the cost of replacing the vehicle]. If the victim

“has received compensation from insurance or any other source with

respect to a loss, the court shall order that restitution be paid to

the person who provided or is obligated to provide the

compensation.” United States v. Frazier, 651 F.3d 899, 905 (8th

Cir. 2011).



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d. Fire Evacuees

Thousands of local residents were directly and proximately

harmed when they were forced to evacuate their homes and flee for

their lives as the result of defendants‟ commission of an offense

against property, Setting Timber Afire, in violation of 18 U.S.C. §

1855. A victim‟s evacuation costs directly and proximately caused

by a defendant‟s criminal offense are appropriate restitution under

the MVRA. See De La Fuente, supra at 768 and 773 (United States

Postal Service entitled to restitution under MVRA for evacuation

costs resulting from criminal anthrax letter hoax).

4.

Restitution is limited by a victim‟s actual losses

Under the MVRA, restitution is limited to a victim‟s actual

losses. United States v. Fu Sheng Kuo, 620 F.3d 1158, 1164 (9th

Cir. 2010). “[A]ctual loss for restitution purposes is determined

by comparing what actually happened with what would have happened if

the defendant had acted lawfully.” Id., quoting, United States v.

Bussell, 504 F.3d 956, 964 (9th Cir. 2007), cert. denied, -U.S.-,

129 S.Ct 40, 172 L.Ed.2d 20 (2008). Actual losses include expenses

necessary to repair damage caused by the defendant‟s criminal

conduct. See United States v. Sablan, 92 F.3d 865, 870 (9th Cir.

1996). The Ninth Circuit has even “approved restitution awards that

included losses at least one step removed from the offense conduct

itself.” See United States v. Gamma Tech Industries, Inc., 265 F.3d

917, 927 (9th Cir. 2001). The key consideration for this Court is

to ensure that the loss “causal chain” does “not extend so far, in

terms of the facts or the time span, as to become unreasonable.”

Butcher, supra, 377 Fed.Appx. at 629, quoting, Gamma Tech, supra,

265 F.3d at 928. The Eleventh Circuit has recognized that a



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victim‟s actual losses include those losses that are a “natural

result” of the defendant‟s criminal conduct. See United States v.

Vaghela, 169 F.3d 729, 736 (11th Cir. 1999).

In the case before this Court, defendants were convicted of

starting an illegal campfire, in violation of 18 U.S.C. § 1855,

which escaped their control and resulted in the massive Colby Fire.

Victim “losses” that directly resulted from the defendants‟ criminal

conduct include, among others, (1) fire suppression costs, (2) law

enforcement evacuation and policing costs,2 (3) fire-related damage

to private and public properties and structures, (4) expenses

related to mandatory evacuations to save human life, (5) mud flow

and erosion prevention and control costs, and (6) mud flow and

erosion damages to private and public properties, flood control

basins, and structures. None of these resulting losses would have

occurred had defendants “acted lawfully.” See Bussell, supra, 504

F.3d at 964. A devastating forest fire is a predictable “natural

result” of the setting of an illegal campfire in dangerous weather

and drought conditions. See Vaghela, supra, 169 F.3d at 736.

a. Intervening causation

A post-criminal offense, intervening cause that leads to victim

damages or losses does not prevent an order of restitution under the

MVRA. Rather, “[t]he main inquiry for causation in restitution

cases becomes whether there was an intervening cause and, if so,

whether this intervening cause was directly related to the offense

conduct.” Brock-Davis, supra, 504 F.3d at 1000, quoting United

2 Fieldwork performed by a United States Forest Service Officeras part of the survey and restoration process in response toarcheological theft offense is properly included in calculation ofvictim losses. See Quarrell, supra at 681.



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States v. Meksian, 170 F.3d 1260, 1263 (9th Cir. 1999). In this

case, defendants set an illegal campfire, which escaped their

control to cause the devastating Colby Fire. All of the victims‟

damages and losses, for which the government seeks restitution in

this case, are a direct and foreseeable result of the defendants‟

illegal conduct. See Brock-Davis, supra at 1000 (“[a] cleanup and

decontamination effort conducted by local emergency response

agencies … was a necessary and foreseeable result of [defendant‟s]

offense conduct” and that “[n]o independent intervening cause

[could] be blamed for the [agencies‟] loss”)(citations and

highlights omitted). The government proved at trial that all three

defendants were aware of the devastating wildfire danger that their

illegal campfire presented. See Attachment 1, transcript excerpts

of defendant Henry‟s video and audio-recorded post-arrest statements

admitted into evidence as Gov. Exs. 32 and 51; see Attachment 2,

transcript excerpts of defendant Aguirre‟s video and audio-recorded

post-arrest statements admitted into evidence as Gov. Ex. 36 and 54;

and see Attachment 3, transcript excerpts of defendant Jarrell‟s

video and audio-recorded post-arrest statements admitted into

evidence as Gov. Ex. 28. In other words, the resulting wildfire and

its attendant losses and damages were not only foreseeable by the

defendants, but they were actually foreseen and discussed by the

defendants prior to setting the illegal campfire.

Even the subsequent erosion and mud flow damages caused when an

“intervening rain” fell upon the fire-damaged hillsides were the

result of an intervening cause (rainfall) directly related to the

offense conduct (fire-damaged hillsides that could no longer absorb

rain). As such, the government‟s restitution request for erosion



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and mud flow damages cannot be said to be an unreasonable extension

of the causal chain, in terms of the facts or the time span of

events. See id., quoting Gamma Tech, supra at 928.

b.

Consequential damages

Defendant Jarrell contends that fire suppression costs are

impermissible consequential damages, and should therefore not be

awarded under the MVRA. See Def. Jarrell‟s Position Regarding

Sentencing, page 29, Court Doc. 293. In support of his contention,

defendant Jarrell cites to the unpublished Fourth Circuit United

States v. Sprouse opinion, as well as the Third Circuit United

States v. Simmonds opinion. 58 Fed.Appx. 985; 235 F.3d 826.

Neither decision is useful here – Sprouse is not binding precedent

for this Court and is not consistent with existing Ninth Circuit

cases – and Simmonds is distinguishable on its facts.

In Sprouse, the Fourth Circuit concluded that fire suppression

costs were not recoverable as restitution following a Section 1855

conviction because the panel was “not convinced that fire

suppression costs are analogous to costs for repair and replacement

of equipment” damaged during commission of a criminal offense.

Sprouse, supra, 58 Fed.Appx. at 990. In sharp contrast to the

Fourth Circuit‟s Sprouse decision, the Ninth Circuit has noted that

the statutory language of the MVRA (18 U.S.C. § 3663A(b)(1)) is not

“easy to apply where property is rendered temporarily unusable,

rather than completely destroyed or permanently damaged.” De La

Fuente, supra at 773-774, including fn. 6. In such situations, the

Ninth Circuit agreed with the Third Circuit‟s conclusion that the

MVRA must be interpreted to require a defendant to pay restitution

for repair, cleanup, and remediation costs incurred by a victim to



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restore the damaged property to the “same condition as just prior to

the time it became unusable.” Id., quoting United States v.

Quillen, 335 F.3d 219, 222 (3d Cir. 2003). Both the De La Fuente

and Quillen decisions involved restitution for costs incurred during

the incident response, cleanup, and remediation of United States

Postal Service mail rooms exposed to fake anthrax. De La Fuente,

supra at 773; Quillen, supra at 226.

In the instant case, it is axiomatic that “but for” defendants‟

actions in setting the illegal campfire during a dry, dangerous

period of fire restrictions, the United States Forest Service and

Los Angeles County Fire Department would not have deployed

firefighting assets to suppress the raging Colby Fire that directly

resulted from defendants‟ conduct. The victims would not have spent

millions of dollars in direct costs to suppress the resulting fire,

and would not have spent millions of dollars to prevent and cleanup

erosion and mud flow damage. Defendant Jarrell‟s assertion that the

majority of the victim losses and damages cannot be included in a

restitution order because they can be characterized as

“consequential damages” is thus misplaced. The appropriate inquiry

is whether these losses directly resulted from defendants‟ criminal

activity.

Moreover, and if for no other reason, the government submits

that fire suppression costs are mandatory MVRA restitution because

the property damaged by defendants‟ offense, the forest, was not

“useable” until the resulting Colby Fire was put out. A forest set

ablaze is no more useable than a mail room contaminated with

anthrax. See also, Brock-Davis, supra at 1001 [remediation and

cleanup costs for motel room contaminated by illegal methamphetamine



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lab was proper MVRA restitution because decontamination was required

before motel room could be used again]. As such, fire suppression

costs do not constitute impermissible consequential damages.

In Simmonds, the Third Circuit properly rejected an MVRA

restitution claim for a victim‟s homeowner insurance “clean renewal

discount” following fire damage to a house resulting from an arson

offense. While the Third Circuit did permit MVRA restitution for

the costs of furniture damaged by the arson fire, it denied the

victim‟s restitution claim for increased insurance premiums

resulting from the insurance claim for damages from the arson fire.

Not only are the Simmonds facts far removed, and therefore

distinguishable, from the case at hand, but the government also

agrees that such restitution for the “clean renewal or no claim

discount” is too highly attenuated to justify mandatory restitution

under the MVRA. See 235 F.3d at 832-833.

c. Investigatory costs are not recoverable

The government does not seek restitution for investigatory

costs associated with this case. Such costs are “routinely incurred

by the government for the procurement of evidence.” United States

v. Menza, 137 F.3d 533, 539 (7th Cir. 1998). Investigation and

prosecution costs “are not direct losses relating to the defendant‟s

criminal conduct which can be recovered” as restitution. Id.

5.

Defendant‟s ability to pay restitution mandated by

the MVRA is irrelevant

When restitution is mandated by the MVRA, it is immaterial

whether or not a defendant has the ability to pay the restitution

ordered by the district court. 18 U.S.C. § 3663A(a)(1); see United

States v. Grice, supra, 319 F.3d at 1177.



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6. Disputed losses are to be resolved by the Court by apreponderance of the evidence

The government has the burden of proving victim losses to this

Court by a preponderance of the evidence. Quarrell, supra, 310 F.3d

at 678, 681.

7. The Court may order multiple defendants to be jointlyand severally liable for restitution payments

Where more than one defendant is responsible for the loss of a

victim, “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.” Id. at 678. In this

case, the government requests that the Court order each of the three

defendants in this case to be jointly and severally liable for

restitution to each of the victims (and in the amounts) determined

by this Court.

III. SUMMARY OF ACTUAL VICTIM LOSSES

A.

RESTITUTION TO THE UNITED STATES FOREST SERVICE

1.

Fire suppression costs

On July 23, 2014, the government submitted the United States

Forest Service‟s (“USFS”) Colby Fire Transaction Register Summary

Report detailing all fire suppression costs incurred by the USFS,

current as of July 18, 2014, along with the Declaration of USFS

Financial Analyst Jane Packer. See Court Docs. 292-53 and 304

(signed declaration). As of July 18, 2014, the USFS fire

suppression costs for the Colby Fire totaled $4,289,890.97. The

3 The Transaction Register Summary Report was labeled as ExhibitE to the Government‟s Combined Position Re: Presentence Report andSentencing Position for Defendant Jonathan Carl Jarrell (Court Doc.292). For consistency, the government will label the new filingsnext in order for Court Doc. 292, beginning with Exhibit P.



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Declaration of Jane Packer explained in detail her methodology for

collecting, collating, and tabulating the USFS fire suppression

costs.

Contemporaneous with this restitution position, the government

has filed a new USFS Colby Fire Transaction Register Summary Report,

current as of September 8, 2014, and updated Declaration of Jane

Packer. See Exhibit 1 to this filing, manually filed under seal.

As of September 8, 2014, the USFS fire suppression costs for the

Colby Fire had increased slightly to a new total of $4,375,325.67.

As indicated at ¶3 of Ms. Packer‟s Declaration, the government

anticipates that the total USFS fire suppression costs will increase

by an additional $3,000,000 once all invoices are received and paid.

To avoid further delay in this matter, the government only seeks

restitution for USFS fire suppression costs in the amount current as

of September 8, 2014: $4,375,325.67.

B. RESTITUTION TO THE CITY OF AZUSA

1.

Costs for response to the Colby Fire

John Momot, Administrative Captain for the City of Azusa Police

Department, is responsible for determining Police Department and

City costs for responses to major events and disasters, both natural

and manmade. See Declaration of Captain John Momot, Court Doc. 304-

1, page 38, ¶1. Captain Momot was assigned the task of determining

the City of Azusa‟s Police Department response costs and fire damage

mitigation costs for the Colby Fire. See Decl. Capt. Momot, ¶2.

Based upon his review of Azusa Police Department payroll records, he

determined the police officer overtime costs for the fire response

to be $35,389.00. See Decl. Capt. Momot, ¶3.



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2. Costs for mitigation of fire damage

Based upon his review of City of Azusa Department of Public

Works payroll and business records, Captain Momot determined the

City employee overtime costs and structural mitigation costs to be

$70,309.00. See Decl. Capt. Momot, ¶4. On this basis, the

government requests that the Court order defendants to pay a total

amount of restitution to the City of Azusa in the amount of

$105,698.00.

C. RESTITUTION TO THE CITY OF GLENDORA

1.

Costs for response to the Colby Fire

James Caldwell, City of Glendora Emergency Services Coordinator

(“ESC”), is responsible for overseeing the City‟s Emergency Services

Operations, training, and information gathering – including costs

related to emergency responses. See Declaration of James Caldwell,

Court Doc. 304-1, pages 7-9, ¶1. ESC Caldwell was assigned the task

of determining the City‟s response costs to the Colby Fire and

response costs to the Winter Storm event of February 28 through

March 5, 2014, that followed the Colby Fire. See Decl. Caldwell,

¶¶2&4. Based on ESC Caldwell‟s review of City of Glendora payroll

and business records, he determined the Colby Fire response costs to

be $48,385.02. See Decl. Caldwell, page 8 of Court Doc. 304-1.

2. Winter Storm Mud and debris flow prevention anddamage costs

ESC Caldwell further determined the Winter Storm response costs

and damages to be $654,776.00. See Decl. Caldwell, and attached

worksheet at page 9 of Court Doc. 304-1. On this basis, the




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amount of restitution to the City of Glendora in the amount of

$703,161.02.

D. RESTITUTION TO THE LOS ANGELES COUNTY FIRE DEPARTMENT

1.

Fire suppression costs

Debby Prouty, Assistant Chief for Financial Management of the

Los Angeles County Fire Department (“LACFD”) was assigned the task

of determining the LACFD‟s fire suppression costs for the Colby

Fire. See Declaration of Asst. Chief Debby Prouty, Court Doc. 304-

1, pages 42-44, ¶¶1-2. Based upon her review of LACFD business

records, which include written information provided by LACFD

employees assigned to work on the Colby Fire which was approved by

each employee‟s supervisor and official time record for each

employee, Asst. Chief Prouty determined the LACFD‟s Colby Fire

suppression costs to be $3,031,338.97. See Decl. Asst. Chief

Prouty, page 42, ¶¶3-4. $1,180,117.67 of these costs are

recoverable from the USFS based upon cooperative fire management

agreements. See Decl. Asst. Chief Prouty, page 43, ¶5. The LACFD‟s

non-recoverable Colby Fire suppression costs are $1,851,221.30. See

Decl. Asst. Chief Prouty, page 42, ¶6, and page 43 attached

worksheet. On this basis, the government requests that the Court

order defendants to pay a total amount of restitution to the LACFD

in the amount of $1,851,221.30.

E. RESTITUTION TO THE LOS ANGELES COUNTY DEPARTMENT OF PUBLIC WORKS

1. Current debris flow mitigation costs

Kenneth Rickard, Civil Engineer for the Los Angeles Department

of Public Works (“LACDPW”), was assigned the task of determining the

LACDPW‟s response and damage mitigation costs associated with the



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Colby Fire. Mr. Rickard is the unit head of the LACDPW‟s Sediment

management and Debris Development Section of Water Resources

Division. He is responsible for mapping the boundaries of fires

that occur in Los Angeles County, calculating the increased debris

production potential form burned and partially burned canyons,

supervising projects to mitigate increased debris flows,

coordinating with affected cities on measures they can take to

mitigate mudflows, and offering advice to residents on how they can

protect their properties from the increased debris flows. See

Declaration of Kenneth Rickard, Court Doc. 304-1, pages 48-51, ¶1.

Based upon his review of LACDPW‟s business records, Mr. Rickard

determined that the LACDPW‟s costs for mitigating increased mud and

debris flows caused by the Colby Fire burn damage to area canyons is

$312,005.06 as of July 15, 2014. Mr. Rickard anticipates the

expenditure of an additional $250,000 this Fall to design and

construct and additional debris flow barrier. That cost is not

included in this restitution request. See Decl. Rickard, ¶2-3.

2. Removal of post-fire debris from basins


further determined that the LACDPW‟s costs for removal of 17,946

cubic yards of sediment from four debris basins in the Colby Fire

area (to prepare for massive post-fire, storm-related mud flows) to

be $736,838.70. See Decl. Rickard, ¶3.

3.

Removal of mud flow debris from basins


further determined that the LACDPW‟s costs for removal of 67,764

cubic yards of post-fire, storm-related sediment from five debris

basins in the Colby Fire area to be $1,950,576.91. Mr. Rickard



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2. 1078 North Glendora Avenue, Glendora, CA – Owners“W.J & E.J.”

Victims “W.J & E.J.s‟” home at 1078 North Glendora Avenue was

damaged/destroyed during the Colby Fire. See Exhibit 3 to this

filing, manually filed under seal, page 2, Letter of Vice President

of Claims, Estee C. Natale. The California FAIR Plan Association

paid “W.J & E.J.” a total amount of $245,143.00 in compensation for

their damaged home and belongings. See Ex. 3, page 2. As a result

of these payments, California FAIR Plan Association is a victim in

this matter. The government requests that the Court order

defendants to pay a total amount of restitution to the California

FAIR Plan Association in the amount of $245,143.00 for Claim No.

531338.

3.

1135 North Glendora Avenue, Glendora, CA – Owners“G.P. & L.P.”

Victims “G.P. & L.P.s‟” home at 1135 North Glendora Avenue was

destroyed during the Colby Fire. See Exhibit 4 to this filing,

manually filed under seal, page 2, Letter of Vice President of

Claims, Estee C. Natale. The California FAIR Plan Association paid

“G.P. & L.P.” a total amount of $596,232.33 in compensation for

their destroyed home and belongings. See Ex. 4, pages 2-4. As a

result of these payments, California FAIR Plan Association is a

victim in this matter. The government requests that the Court order



531339.



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4. 951 North Glendora Avenue, Glendora, CA – Owner“B.A.”

Victim “B.A.‟s” home at 951 North Glendora Avenue was damaged

during the Colby Fire. See Exhibit 5 to this filing, manually filed

under seal, page 2, Letter of Vice President of Claims, Estee C.

Natale. The California FAIR Plan Association paid “B.A.” a total

amount of $175,470.50 in compensation for the damaged home and

belongings. See Ex. 5, pages 2-4. As a result of these payments,

California FAIR Plan Association is a victim in this matter. The


amount of restitution to the California FAIR Plan Association in the

amount of $175,470.50 for Claim No. 531342.

5.

957 Easley Canyon Road, Glendora, CA – Owner “S.O.”

Victim “S.O.‟s” home at 957 Easley Canyon Road was damaged


under seal, page 2, Letter of Vice President of Claims, Estee C.

Natale. The California FAIR Plan Association paid “S.O.” a total

amount of $32,634.43 in compensation for the damaged home. See Ex.

6, page 2-3. As a result of these payments, California FAIR Plan

Association is a victim in this matter. The government requests

that the Court order defendants to pay a total amount of restitution

to the California FAIR Plan Association in the amount of $32,634.43

for Claim No. 531352.

6.

1167 Englewild Drive, Glendora, CA – Owner “S.J.”

Victim “S.J.‟s” home at 1167 Englewild Drive was damaged during

the Colby Fire. See Exhibit 7 to this filing, manually filed under

seal, page 2, Letter of Vice President of Claims, Estee C. Natale.

The California FAIR Plan Association paid “S.J.” a total amount of



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$16,290.58 in compensation for the damaged home. See Ex. 7, pages

2-4. As a result of these payments, California FAIR Plan

Association is a victim in this matter. The government requests


to the California FAIR Plan Association in the amount of $16,290.58

for Claim No. 531353.

7. 1154 North Glendora Avenue, Glendora, CA – Owners“R.J. & S.J.”

Victims “R.J. & S.J.s‟” home at 1154 North Glendora Avenue was

destroyed during the Colby Fire. See Exhibit 8 to this filing,

manually filed under seal, pages 5-9, Copy of Claim Payment Checkand supporting documentation. The QBE First Insurance Agency, Inc.

paid “R.J. & S.J.” a total amount of $410,811.00 in compensation for

their destroyed home and belongings. See Ex. 8, pages 5-9. As a

result of these payments, QBE First Insurance Agency, Inc. is a


defendants to pay a total amount of restitution to the QBE First

Insurance Agency, Inc. in the amount of $410,811.00 for Claim No.

L14002096.

G. RESTITUTION FOR HOMES WITH SMOKE DAMAGE

1.

312 East Hurst Street, Covina, CA – Owner “Y.M.”

Victim “Y.M.‟s” home at 312 East Hurst Street was smoke-damaged


under seal, page 2 plus supporting documentation, Letter of Sue

Pruett. The California Casualty Indemnity Exchange paid a total

amount of $1,695.84 for damages to the home. See Ex. 9, page 2. As

a result of these payments, California Casualty Indemnity Exchange

is a victim in this matter. The government requests that the Court



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order defendants to pay a total amount of restitution to the

California Casualty Indemnity Exchange in the amount of $1,695.84

for Claim No. 50000251685.

2.

1833 Mirador Avenue, Azusa, CA – Owner “J.R.”

Victim “J.R.‟s” home at 1833 Mirador Avenue was smoke-damaged

during the Colby Fire. See Exhibit 10 to this filing, manually

filed under seal, page 2 plus supporting documentation, Letter of

Jenifer Ashcraft. The California Casualty Indemnity Exchange paid a

total amount of $2,011.82 for damages to the home. See Ex. 10, page

2. As a result of these payments, California Casualty Indemnity

Exchange is a victim in this matter. The government requests that

the Court order defendants to pay a total amount of restitution to

the California Casualty Indemnity Exchange in the amount of

$2,011.82 for Claim No. 50000247407.

3.

1837 Forest Drive, Azusa, CA – Owner “R.Q.”

Victim “R.Q.‟s” residence at 1837 Forest Drive was smoke-

damaged during the Colby Fire. See Exhibit 11 to this filing,

manually filed under seal, pages 2-4 plus supporting documentation,

Letter of Eleni Saranteas. The California Casualty Indemnity

Exchange paid a total amount of $2,514.34 for damages to the home.

See Ex. 11, page 3. As a result of these payments, California

Casualty Indemnity Exchange is a victim in this matter. The


amount of restitution to the California Casualty Indemnity Exchange

in the amount of $2,514.34 for Claim No. 50000244987.



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4. 767 West Virginia Ann Drive, Azusa, CA – Owner“M.S.B.”

Victim “M.S.B.‟s” residence at 767 West Virginia Ann Drive was

smoke-damaged during the Colby Fire. See Exhibit 12 to this filing,


Letter of Jenifer Ashcraft. The California Casualty Indemnity


See Ex. 12, pages 2-3. As a result of these payments, California





5.

156 North Vernon Avenue, Azusa, CA – Owner “D.D.”

Victim “D.D.‟s” residence at 156 North Vernon Avenue was smoke-

damaged during the Colby Fire. See Exhibit 13 to this filing,


Letter of Jenifer Ashcraft. The California Casualty Indemnity


See Ex. 13, pages 2-4. As a result of these payments, California





6.

1170 Easley Canyon Road, Glendora, CA – Owner “M.W.”

Victim “M.W.‟s” residence at 1170 Easley Canyon Road, Glendora

was smoke-damaged during the Colby Fire. See Exhibit 14 to this

filing, manually filed under seal, pages 2-3 plus supporting

documentation, Letter of Vice President of Claims, Estee C. Natale.



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The California FAIR Plan Association paid a total amount of

$21,590.19 for damages to the home. See Ex. 14, pages 2-3. As a

result of these payments, California FAIR Plan Association is a




531362.

H. RESTITUTION FOR DESTRUCTION OF VEHICLE

1. Honda Goldwing Motorcycle – Owner “G.P.”

Victim “G.P.‟s” Honda Goldwing Motorcycle was destroyed when

his home burned down during the Colby Fire. See Exhibit 15 to this

filing, manually filed under seal, pages 1 & 7, Letter of Stacey

Johnson; and see Section F.3. above. The Farmers Insurance Exchange

paid a total amount of $27,016.65 for destruction of the vehicle.

See Ex. 15, page 7. As a result of this payment, Farmers Insurance

Exchange is a victim in this matter. The government requests that

the Court order defendants to pay a total amount of restitution to

the Farmers Insurance Exchange in the amount of $27,016.65 for Claim

No. 8003297978-1.

I. RESTITUTION FOR EVACUATION AND MUD FLOW COSTS

1.

833 North Rainbow Drive, Glendora, CA -- Victim“E.A.”

Victim “E.A.” was evacuated from his home during the Winter

Storm event following the Colby Fire, between the dates of February

27, 2014 and March 2, 2014. Many residents were forced by local

officials to evacuate due to anticipated mud and debris flows coming

out of canyons and hillsides burned by the Colby Fire. As a result,

he incurred $909.23 in damages for lodging, food, gas, medical



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supplies, and labor and materials to protect his home from mud

flows. See Declaration of E.A., Court Doc. 321, pages 1-2 of

Exhibit O of Government‟s Combined Position Re: Presentence Report

and Sentencing Position for Defendant Jonathan Carl Jarrell (Court

Doc. 292); see also Statement of E.A. and attached receipts, Court

Doc. 315, pages 1-12 of Exhibit I of Government‟s Combined Position

Re: Presentence Report and Sentencing Position for Defendant

Jonathan Carl Jarrell (Court Doc. 292). The government requests


to victim “E.A.” in the amount of $909.23.

2.

21 Poppyglen Court, Azusa, CA – Victims “V.B. & R.B.”

Victims “V.B. & R.B.” were forced to evacuate their home as the

result of the Colby Fire. As a result, they incurred unanticipated

costs for gas/mileage and groceries in the amount of $196.83. See

Declaration of R.B., Court Doc. 321, page 15 of Exhibit O of

Government‟s Combined Position Re: Presentence Report and Sentencing

Position for Defendant Jonathan Carl Jarrell (Court Doc. 292); see

also Statement of V.B. and R.B. and attached receipts, Court Doc.

315, pages 17-22 of Exhibit I of Government‟s Combined Position Re:

Presentence Report and Sentencing Position for Defendant Jonathan

Carl Jarrell (Court Doc. 292). The government requests that the

Court order defendants to pay a total amount of restitution to

victims “V.B. & R.B.” in the amount of $196.83.

3.

Victims “F.B. & E.B.”

Victims “F.B. & E.B.” were forced to evacuate their home as the


costs for lodging, meals, and personal protective gear (mask and

respirator) in the amount of $409.19. See Declaration of F.B.,



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Carl Jarrell (Court Doc. 292). The evacuation was very hard on

“M.M.M.” and she suffered greatly from the smoke inhalation and lost

ground rapidly thereafter – until her death on or about February 25,

2014. From the first night of the evacuation, until her demise, she

was forced into full-time hospice care. Her insurance did not cover

the difference between the partial care and full-time hospice care.

“But for” defendants‟ criminal offense that caused the Colby Fire,

“M.M.M.” might still be alive, and would not have been forced into

full-time hospice care on January 16, 2014. See id. The

additional, unreimbursed costs for full-time hospice care for

“M.M.M.” are as follows:

Time Period Unreimbursed Costs

1/16/14 – 1/18/14 $432.19

1/19/14 – 1/25/14 $2,506.37

1/26/14 – 2/1/14 $2,511.60

2/2/14 – 2/8/14 $2,511.60

2/9/14 – 2/15/14 $2,433.04

2/16/14 – 2/22/14 $2,511.60

2/23/14 – 2/25/14 $966.41

TOTAL RESTITUTION $13,872.81

The government requests that the Court order defendants to pay a

total amount of restitution to the Estate of Victim “M.M.M.” in the

amount of $13,872.81.

6. 265 Windsong Court, Azusa, CA – Victims “L.M. & G.M.”

Victims “L.M. & G.M.” were forced to evacuate their home as the


costs for food and lodging in the amount of $209.10. See



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Declaration of L.M., Exhibit 17 to this filing, filed separately

under seal; see also Statement of L.M. and G.M. and attached

receipts, Court Doc. 315, pages 171-175 of Exhibit I of Government‟s

Combined Position Re: Presentence Report and Sentencing Position for

Defendant Jonathan Carl Jarrell (Court Doc. 292). The government

requests that the Court order defendants to pay a total amount of

restitution to victims “L.M. & G.M.” in the amount of $209.10.

7. 28 Sandstone Way, Azusa, CA – Victims “H.M. & S.M.”

Victims “H.M. & S.M.” were forced to evacuate their home as the


costs for food, lodging, work clothes, and a hearing aid lost during

the stressful evacuation in the amount of $3,262.68. See

Declaration of S.M., Exhibit 18 to this filing, filed separately

under seal; see also Statement of H.M. & S.M. and attached receipts,

Court Doc. 315, pages 176-182 of Exhibit I of Government‟s Combined

Position Re: Presentence Report and Sentencing Position for

Defendant Jonathan Carl Jarrell (Court Doc. 292). The government

requests that the Court order defendants to pay a total amount of

restitution to victims “H.M. & S.M.” in the amount of $3,262.68.

8. 22 Moonridge Court, Azusa, CA – Victim “J.V.”

Victim “J.V.” was forced to evacuate his home as the result of

the Colby Fire. As a result, he incurred unanticipated costs for

food and lodging during the evacuation in the amount of $356.42.

See Declaration of J.V. and attached receipts, Court Doc. 315, pages

263-273 of Exhibit I of Government‟s Combined Position Re:


Carl Jarrell (Court Doc. 292). The government requests that the



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Court order defendants to pay a total amount of restitution to

victim “J.V.” in the amount of $356.42.

IV. CONCLUSION

In conclusion, the government respectfully requests that the

Court issue an order of restitution to the victims listed above, in

the amounts set forth above, in the order of payment set forth in a

separate Proposed Restitution Order (to be filed by government

counsel). The government submits that the restitution amounts set

forth above, and in the related filings, are losses directly and

proximately caused by defendants‟ offense – and that such loss

amounts have been proven by a preponderance of the evidence.

government’s publicly filed restitution position paper for colby fire

Documents