USA v. Simmons
Order on Motion for Miscellaneous Relief
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
CAPRICE M. SIMMONS,
ORDER FROM CHAMBERS
Motion at docket 9]
I. MOTION PRESENTED
At docket 9, defendant Caprice M. Simmons (“Simmons”) filed what she styled a
“notice of satisfaction” indicating that she believes the restitution obligation imposed in
this court’s judgment has been satisfied. The United States disagreed and filed an
opposition, to which Simmons then filed a reply. The matter has been fully briefed, no
party has requested oral argument, and it would not be of assistance to the court.
To avoid confusion, the reader needs to be aware that when the clerk reopened
this case to allow for the processing of papers received long after the original judgment
was entered and the case closed, the re-opening entry was given docket number 7 in
the Electronic Case Filing system (a system instituted some years after this case was
originally closed). As a result, where in the discussion below the court references
higher docket numbers than those which exist on the ECF docket, the references are to
the original docket numbers used prior to the closing of the case and its subsequent reopening in the ECF system.
On September 12, 2002, Simmons pled guilty pursuant to a plea agreement to
one count of health care fraud in violation of 18 U.S.C. § 1347 and one count of theft in
connection with health care in violation of 18 U.S.C. § 669(a). Simmons was an
employee of Calco, Inc. which provided health care benefit processing services to the
Alaska Public Utilities Insurance Trust (“APUIT”), among others. She devised a scheme
to defraud APUIT, which is described as follows in her plea agreement:
Simmons would prepare a false claim to APUIT for health care services
for herself or one of her eligible dependents, which health care service
was never rendered. Simmons then submitted the false claim to APUIT
through Calco, Inc. and processed the claim herself. Simmons then
generated an Explanation of Benefits (EOB) and a check for payment of
the amount set forth on the EOB. These false documents were filed in the
records of Calco, Inc. to support the payment of money on the claim.
Simmons would then cash the check or deposit the check in her own
account, thereby obtaining the money of APUIT through a false
On November 1, 2002, Simmons was sentenced to serve a term of 15 months in
custody, followed by 3 years of supervised release. Her sentence also included an
obligation to pay restitution to APUIT in the amount of $129,454.15.2
Later, the APUIT trustees filed suit against Calco, Inc., D. Baily Calvin, Jr., Diana
J. Stewart, and Simmons in this court seeking to recover the sums that Calco’s
employee Simmons had stolen.3 Eventually, that litigation was settled. The terms of
the settlement involved a large payment to plaintiffs and included an acknowledgment
that the entire restitution obligation imposed by this court in the case at bar had been
Plea Agreement, doc. 25 at p. 12.
Amended Judgment, doc. 40 at p. 5.
Gifford, et al v. Calco, Inc., et al., 3:03-cv-019 RRB.
Settlement Agreement and Release of Claims, exhibit A to ECF doc. 9 at ¶ 4.
It is not disputed that APUIT has now recovered the full amount of restitution
which this court ordered Simmons to pay to it. However, most of the money was
recovered from third parties when APUIT’s civil lawsuit was settled. The United States
contends that Simmons’ restitution obligation remains outstanding, with no change other
than a shift in the identity of the beneficiary of that obligation from APUIT to those who
paid to settle the civil case.
This court has no inherent authority to order restitution in criminal cases; such
authority as it may have is derived from statutory law.5 The restitution obligation in this
case was imposed pursuant to the mandatory restitution obligation created by Congress
and codified at 18 U.S.C. § 3663A, et seq. The statutory scheme governing this form of
restitution includes specific instructions relating to third parties. Where, as was not the
case here, a third party has paid compensation to the crime’s victim prior to the order of
restitution, the court must order payment of restitution to that third party.6 On the other
hand, when the restitution or portion thereof is subsequently recovered by the victim in a
civil suit in federal court, the restitution “shall be reduced by any amount later recovered
as compensatory damages for the same loss by the victim.”7
The United States takes the position that the Ninth Circuit decisions in United
States v. Follett8 and United States v. Cliatt9 support the proposition that Simmons’
restitution obligation remains extant despite the fact that the outstanding balance of the
obligation was paid as a result of the civil lawsuit. The position advocated by the United
States is plainly contrary to the language of the statute quoted above. This court finds
United States v. Follett, 269 F.3d 996, 998 (9th Cir. 2001).
18 U.S.C. § 3664(j)(1).
18 U.S.C. § 3664(j)(2).
269 F. 3d 996 (9th Cir. 2001).
338 F.3d 1089 (9th Cir. 2003).
nothing in the cases cited to support the proposition that the statute does not mean
what it says. Neither of them even addresses the pertinent statutory language.
It may seem “unfair” for the statutory scheme to distinguish between third parties
who pay a victim before the criminal judgment is entered and those who pay afterward
as a result of civil litigation. On the other hand, it cannot be doubted that the statute
which creates and circumscribes this court’s restitution power does precisely that.
Perhaps Congress expected third parties who do not act before the judgment is entered
in a criminal prosecution to pursue and protect their own interests in any subsequent
lawsuit. Whatever the reason, this court must abide the parameters of the restitution
power Congress has given it.
For the reasons set out above, the motion at docket 9 is GRANTED. The
restitution obligation contained in this court’s judgment at docket 40 has been satisfied.
DATED at Anchorage, Alaska, this 8th day of August 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
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