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United States v. Antonio

United States District Court, D. New Mexico

February 15, 2017


          Damon P. Martinez United States Attorney Kimberly Brawley David Adams Assistant United States Attorneys United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          Stephen P. McCue Federal Public Defender Sylvia A. Baiz Assistant Federal Public Defender Federal Public Defender's Office Albuquerque, New Mexico Attorneys for the Defendant.


         THIS 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[1] 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.


         On the 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.

         Emergency 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.

         Doe was 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 PSR”).


         On 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.

         Plea 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.

         Officer 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.

         The 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.

         1. A. Antonio's Objections to Restitution.

         On 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).

         Second, 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.

         Third, 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 8.

         Fourth, 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”).

         2. The United States' Response.

         The 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.

         First, 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))).

         Second, 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.

         Third, 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.

         3. The Second ...

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