United States v. Louis Zacherle ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30179
Plaintiff-Appellee, D.C. No.
2:18-cr-00210-TOR-1
v.
LOUIS LEE ZACHERLE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief District Judge, Presiding
Argued and Submitted July 10, 2020
Seattle, Washington
Before: NGUYEN and BUMATAY, Circuit Judges, and SEEBORG,** District
Judge.
Louis Lee Zacherle appeals the district court’s order requiring him to pay
$15,000 in restitution following his conviction for assault resulting in serious
bodily injury, in violation of 18 U.S.C. §§ 113(a)(7) and 1153. Zacherle contests
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
the amount of the restitution award, arguing that the government failed to prove
causation between the offense of which he was convicted and the financial injury
suffered by the victim. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28
U.S.C. § 1291, and we affirm.
1. The district court did not improperly look beyond the offense conduct
when devising the restitution award. See United States v. Yijun Zhou, 838 F.3d
1007, 1013 (9th Cir. 2016) (“[A] court is authorized to order restitution for the
offense of conviction and not for other related offenses of which the defendant was
not convicted.” (citation omitted)). Zacherle pleaded guilty to assaulting C.O. on
December 9, 2014, but he conceded in his plea agreement that incident did not
occur in isolation. As part of the factual basis for his plea, Zacherle admitted that
the December 9 incident “was one part of a larger tumultuous relationship,” and
that “C.O. reported other incidents during this general timeframe involving other
assaults and attempted strangulation.” Zacherle again acknowledged in his
sentencing memorandum, under the heading for “Offense Conduct,” “that Mr.
Zacherle (to his detriment) agreed on certain enhancements that were part of a
‘larger and tumultuous relationship’ – to include ‘other assaults and attempted
strangulation.’” The district court therefore did not err in considering the broader
history between Zacherle and C.O. in its restitution assessment.
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2. The district court also did not err in finding causation between the
relevant conduct and C.O.’s losses. See United States v. Eyraud, 809 F.3d 462,
467 (9th Cir. 2015) (“The amount of restitution is limited to the victim’s ‘actual
losses’ that are a direct and proximate result of the defendant’s offense.” (citation
omitted)). C.O.’s unrebutted testimony and victim impact statement, which she
affirmed under oath at the sentencing hearing, established a sufficient nexus
between Zacherle’s abuse and her losses. For example, C.O. described the “severe
abuse” she experienced at the hands of Zacherle, and the “PTSD, battered-woman
syndrome, anxiety, panic attacks, night terrors, [and] sleep disorder” that she
attributes to Zacherle’s conduct. C.O. further explained that she suffered “the loss
of [her] job that [she] had worked for 15 years”; that “[her] PTSD is a very
difficult disability to manage and cope with”; and that she is “now on disability
because of [her] conditions that are the aftermath of the violent abuse inflicted on
[her] for the past seven years” by Zacherle. Although C.O.’s injury accumulated
over time, the causal chain “is not extended so far as to become unreasonable.”
United States v. Peterson, 538 F.3d 1064, 1077 (9th Cir. 2008).
3. Finally, the district court properly found the evidence sufficiently reliable
to support the restitution award. See United States v. Waknine, 543 F.3d 546, 557
(9th Cir. 2008) (explaining that a district court enjoys “a degree of flexibility in
accounting for a victim’s complete losses,” but it “may utilize only evidence that
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possesses sufficient indicia of reliability to support its probable accuracy” (internal
quotation marks, brackets, and citations omitted)). C.O. offered live testimony and
a victim impact statement detailing the mental health problems that arose from
Zacherle’s abuse and explaining the spiraling effects thereof on her life, including
the loss of her job. C.O. stated that her PTSD was clinically diagnosed and formed
the basis for her claim to the Washington State Crime Victims Compensation
Program (“CVCP”), and the corresponding CVCP paperwork, including the
doctor’s certification, appears in the record. C.O. attested that her CVCP claim
was “based on the trauma [she] suffered because of the domestic violence that’s
been perpetrated on [her] by the defendant,” and she explained that she received
the $15,000 from the fund as compensation for lost wages that stemmed from her
PTSD. Defense counsel elected not to cross-examine C.O., and her testimony was
unrebutted. As we have recognized, “victim affidavits will generally provide
sufficient, reliable evidence to support a restitution order,” so long as such
affidavits are not “too summary and too conclusory” to demonstrate adequate
indicia of reliability under the circumstances. Id. C.O.’s statements more than
satisfy that standard.
AFFIRMED.
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