United States District Court, D. New Mexico
P. Martinez United States Attorney Kimberly Brawley David
Adams Assistant United States Attorneys United States
Attorney's Office Albuquerque, New Mexico Attorneys for
Stephen P. McCue Federal Public Defender Sylvia A. Baiz
Assistant Federal Public Defender Federal Public
Defender's Office Albuquerque, New Mexico Attorneys for
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Defendant's
Objections to Restitution, filed September 30, 2015 (Doc.
38)(“Objections”). The Court held a restitution
hearing on October 26, 2015. The primary issue is whether
Defendant Adele Antonio must pay $41, 254.73 in restitution
to Berkley Administrators and the Indian Health Services
(“IHS”) for two outpatient visits and a
helicopter transport from Acoma-Canoncito-Laguna Hospital in
Acoma, New Mexico, to the University of New Mexico Hospital
(“UNMH”) in Albuquerque, New Mexico. The Court
concludes that, although Antonio caused the victim a
compensable loss, the Plaintiff United States of America did
not meet its burden to establish that the helicopter
transport was medically necessary. Accordingly, 18 U.S.C.
§ 3663A(b)(2)(A) does not require the Court to order
$40, 554.73 in restitution -- the amount which Berkley
Administrators incurred for the helicopter transport. The
Court, therefore, overrules in part and sustains in part
Antonio's Objections and orders Antonio to make $700 in
restitution to the IHS.
night of February 12, 2015, an Acoma Pueblo Police Sergeant,
John Doe, responded to a domestic disturbance in Acoma, New
Mexico. See Presentence Investigation Report ¶
12, at 4 (disclosed July 15, 2015)(“PSR”). Luanna
Antonio had called the police because her daughter, Adele
Antonio (henceforward “A. Antonio”), was arguing
with her and her other daughter, Erica Antonio. See
PSR ¶ 12, at 4. When Doe arrived at the residence, he
heard voices coming from nearby open fields. See PSR
¶ 13, at 4. Doe investigated, found A. Antonio
intoxicated, arrested her for probation violation, and
escorted her toward her residence. See PSR ¶
13, at 4. Shortly thereafter, A. Antonio's husband, Naham
Kelsey, approached Doe. See PSR ¶ 13, at 4. Doe
told Kelsey not to approach, but Kelsey refused, and Doe
stunned him with a Taser. See PSR ¶ 13, at 4.
After being stunned with a Taser, Kelsey ran. See
PSR ¶ 13, at 4. Doe placed A. Antonio on the ground and
pursued Kelsey. See PSR ¶ 13, at 4. As Doe
apprehended Kelsey, both men fell onto the ground.
See PSR ¶ 13, at 4. At that time, A. Antonio
appeared behind the two men. See PSR ¶ 13, at
4. A. Antonio unsuccessfully attempted to kick Doe in the
face; Doe and A. Antonio struggled; and, during their
struggle, A. Antonio kicked Doe twice in the neck.
See PSR ¶ 14, at 4. Doe ultimately gained
control of Kelsey and A. Antonio, and he escorted them to his
patrol vehicle. See PSR ¶ 14, at 4.
Medical Services (“EMS”) personnel responded to
the scene and, after observing Doe “cough up blood and
mucus, ” provided him with medical assistance. PSR
¶ 14, at 4. EMS transported Doe to
Acoma-Canoncito-Laguna Hospital for medical treatment.
See PSR ¶ 14, at 4. The physician assistant at
Acoma-Canoncito-Laguna Hospital recommended that Doe receive
a CT scan because of the danger that a neck injury presented.
See PSR ¶ 14, at 4-5. Doe was airlifted to
UNMH, because of concerns that, if Doe had a fractured bone
in his neck, it would cause swelling and block his airway.
See PSR ¶ 14, at 4. UNMH treated Doe and
released him in the early morning of February 13, 2015.
See PSR ¶ 14, at 5. Doe then drove home.
See PSR ¶ 26, at 7.
temporarily placed on oxygen, and he was prescribed
medication for pain and inflammation. See PSR ¶
27, at 7. He used sick leave while he recovered. See
PSR ¶ 27, at 8. Workers compensation -- administered by
Berkley Administrators -- covered his airlift expense, and
Doe's insurers covered all other medical expenses.
See PSR ¶ 27, at 8; Second Addendum to the PSR
at 1-2 (disclosed October 22, 2015)(“Second Addendum to
February 20, 2015, the United States filed a criminal
complaint against A. Antonio, charging her with assaulting
Doe, in violation of 18 U.S.C. §§ 113(a)(6), 1153.
See Criminal Complaint, filed February 20, 2015 (Doc
1.)(“Complaint”). On May 8, 2015, A. Antonio
entered a plea agreement in which she pleaded guilty to a
violation of 18 U.S.C. §§ 13, 1153 and N.M. Stat.
Ann. § 30-22-25(B). Plea Agreement at 2, filed May 8,
2016 (Doc. 26)(“Plea Agreement”). In the Plea
Agreement, A. Antonio stated:
On or about February 12, 2015, in Indian Country, in Cibola
County, in the District of New Mexico, I, Adele Antonio, an
Indian, did assault John Doe, an Acoma Police Officer, and
the assault did cause temporary loss or impairment of the
function of John Doe's neck. . . . Specifically, after
John Doe placed me under arrest and in handcuffs, John Doe
began pursuit of my significant other who was also
intoxicated. I followed John Doe and kicked him with my bare
foot while he was attempting to place my partner under
arrest. When I kicked John Doe, the blow landed to his neck
causing him to become disoriented. I understand that kicking
John Doe caused him to be in extreme physical pain, and
resulted in him having protracted loss of the use of his
neck. As a result of the injury, John Doe did not return to
work for approximately 18 days.
Agreement at 3-4. In the Plea Agreement, the parties
memorialized their understanding “that, as part of the
Defendant's sentence, the Court will enter an order of
restitution pursuant to the Mandatory Victim's
Restitution Act, 18 U.S.C. § 3663A.” Plea
Agreement at 3.
Charlotte Baca of the United States Probation Office
(“USPO”) prepared the PSR. See PSR at
1-28. The USPO disclosed the PSR on July 15, 2015.
See PSR at 1. The PSR states that Doe did not
request restitution. See PSR ¶ 28, at 8. The
USPO worked with Doe, however, to obtain a release of
information to attain financial information from his employer
related to worker's compensation and to his insurance.
See PSR ¶ 28, at 8. The USPO also contacted IHS
to determine if IHS would request restitution. See
PSR ¶ 28, at 8. The PSR noted that an Addendum would
address additional information concerning restitution claims.
See PSR ¶ 28, at 8.
Court sentenced A. Antonio to one year and one day
imprisonment. See Sentencing Minute Sheet at 1
(taken August 20, 2015), filed August 20, 2015 (Doc.
35)(“Sentencing Minutes”). Looking to the record
before it, the Court ordered A. Antonio to “make
restitution to Indian Health Services in the amount of
$700.00, and Berkley Administrators in the amount of $40,
554.73.” Sentencing Minutes at 2. The Court also held
restitution open for ninety days to determine the total
amount of restitution requested. See Sentencing
Minutes at 2.
A. Antonio's Objections to Restitution.
September 30, 2015, A. Antonio filed her Objections to
restitution. See Objections at 1-9. First, A.
Antonio objects to restitution, because “the victim in
this case did not suffer any damages or economic loss due to
the injury A. Antonio caused.” Objections at 2. A.
Antonio maintains that the victim “was not required to
pay any out-of-pocket expenses and did not suffer any
economic loss.” Objections at 3. As A. Antonio
contends, because Doe did not have to reimburse the insurance
company for his costs, neither should she. See
Objections at 3. A. Antonio also argues that the Mandatory
Victims Restitution Act (“MVRA”), 18 U.S.C.
§ 3663A, does not warrant restitution, because she did
not agree to pay restitution to any person or entity other
than the victim. See Objections at 3-5 (citing 18
U.S.C. § 3663A).
A. Antonio objects to restitution regarding the helicopter
transport, because “Doe's injuries were not life
threatening and the medical transport was not medically
necessary.” Objections at 6. A. Antonio emphasizes that
the UNMH CT-scan records indicate that Doe suffered no broken
bones, that Doe was released two-and-a-half hours after being
admitted, and that Doe drove himself home after being
released. See Objections at 6; UNMH Emergency Dept.
Notes at 4, filed August 3, 2015 (Doc. 31-1). A. Antonio
states that there is insufficient evidence for the United
States to establish that the helicopter transport was
medically necessary. She consequently argues that she should
not incur the cost of the decision of the
Acoma-Canoncito-Laguna Hospital physician's assistant to
order helicopter transport. See Objections at 7.
A. Antonio contends that her conduct was not a proximate
cause of the helicopter transport's cost. See
Objections at 7-8. A. Antonio argues that the “lack of
the ability of the physician's assist[ant] who was on
duty” caused the decision to order helicopter
transport. Objections at 8. She consequently reasons that her
kicking Doe in the throat was not a proximate cause of the
helicopter transport's cost, and, therefore, she should
not be made to pay for that cost. See Objections at
A. Antonio states that the helicopter transport fee was
exorbitantly high and that the United States introduced no
evidence that the costs are justified. See
Objections at 8. A. Antonio also suggests that the helicopter
transport service was “fraudulently employed.”
Objections at 8. In support of this argument, A. Antonio
points to several newspaper articles reporting on the cost of
medical helicopter transport. See Exhibit A to
Defendant's Objections to Restitution, filed September
30, 2015 (Doc. 38-1)(“Plaintiff's Newspaper
Articles on Helicopter Transport”).
The United States' Response.
United States responds to A. Antonio's Objections to
restitution. See Response to Defendant's
Objections Regarding Restitution at 1-4, filed October 13,
2015 (Doc. 41)(“Response”). The United States
requests the Court to sustain in part and overrule in part A.
Antonio's Objections. See Response at 1.
the United States responds to A. Antonio's argument that,
because Doe did not suffer out-of-pocket expenses, the Court
should not order her to pay restitution. See
Response at 1. The United States correctly notes that A.
Antonio's argument poses the question whether an insurer
that covers the costs of medical expenses is entitled to
restitution. See Response at 1. The United States
maintains that there is no confusion in the law regarding
whether a court may order a defendant to make restitution to
insurers that cover a victim's losses. See
Response at 2 (citing United States v. Harwood, 854
F.Supp.2d 1035 (D.N.M. 2012)(Browning, J.)(citing United
States v. Wooten, 377 F.3d 1134 (10th Cir. 2004))).
the United States responds to A. Antonio's
proximate-cause argument. See Response at 2. The
United States indicates there is no disagreement about the
cause of the injury. See Response at 2. The United
States then comments on the Acoma-Canoncito-Laguna Hospital:
Unfortunately, the ACL Indian Health Service facility is not
adequately staffed or equipped to handle many different forms
of emergent medical need. Due to their facility not having
all of the necessary medical equipment to adequately
determine what injuries a patient may have suffered, they
often times rely upon UNM hospital for assistance. . . . The
hospital located within the boundaries of Acoma reservation
assures their community members that if they cannot
adequately treat someone for their injuries, they will get
them to a hospital that can treat them in adequate time.
Response at 2-3.
in response to A. Antonio's arguments about the medical
transport's high cost, the United States concedes that
“the helicopter fees seem relatively high.”
Response at 3. The United States maintains that it
“made contact with PHI Air Medical to request a
breakdown of the bill, but to date nothing has been
received.” Response at 3. As a result, the United
States concedes that it “does not have enough
information to substantiate a $41, 000 medical bill at this
time.” Response at 3. The United States maintains that
the “$700 requested from Indian Health Services seems
more than reasonable, ” but states that “anything
above and beyond that is indeterminable . . . without further
information from PHI.” Response at 3.
The Second ...