 You're watching FJTN, the Federal Judicial Television Network. Probation officers have to determine restitution and identify the victims for the restitution. This is a complicated process, made more complicated by the enactment of the Mandatory Victims' Restitution Act of 1996. It's taken on a different component and basically we have a lot of questions with restitution. How it's divided up, how it's incorporated into the pre-sentence process, and it's crucial to us that we know how to implement it properly. In the pre-sentence reports there's a section as far as determining restitution and I thought the five steps in determining restitution would be very helpful in our job as pre-sentence report writing. I think it's important that they consider that the purpose of restitution is to put the victims back in the position that they were in prior to the date of the offense, not to make them anything beyond hold, not more than hold, just hold. Now from the Federal Judiciary's tele-training studio in Washington, D.C., the Federal Judicial Center presents Restitution, Determining Victims and Harms. Hello and welcome. I'm Lauren Woods with the Federal Judicial Center and we're especially excited that you're joining us today in this, our first tele-training program produced in collaboration with the United States Sentencing Commission and the Administrative Office of the U.S. Courts. We have 25 sites signed up with us today for Push to Talk, so that means we should cover a little administrative details first. First off, if you're going to use the Push to Talk mic, please make sure you identify yourself and your site. This will help us for a couple of reasons. First, it will let everybody know who's talking and second, it will help in the event unlikely as it might be, we hope, that two or more sites might want to talk at the same time. If that should happen, you'll see a time-out signal from our presenters and that would be your cue then to release the microphone, stop talking and let the presenters call on each other, or call on you rather, by site. Also with that, in addition to our Push to Talk sites, we have with us today approximately 60 view-only sites and maybe even more than that, and we want you to participate as well. And to do that, that's why we've included a fax form in our materials, our hand-out materials today, so any site can, whether you're Push to Talk or view-only, feel free to fax at any time throughout the program. Now to make sure our Push to Talk system is up and running, I'd just like to do a modified roll call really quick, only hit a couple of those 25 sites, just to let our presenters know that there is actually somebody out there listening, okay? So if I call on you, if you would please, just answer, okay? I'd like to check first with the East Coast, and I believe we have Concord, New Hampshire with us today. Concord, are you there? Actually, I've heard that somebody out there has a toggle switch that's open and if you could please just turn that off, and please make sure that it's in the off position that will help reduce any of the feedback that you might be having. Why don't we move on to the Midwest, it's Chicago. Chicago should be with us here today. Are you there, Chicago? No. Hello? We're here, we're here. Oh, great, thank you very much. Also, out on the West Coast, Sacramento, I think, is joining us today. Sacramento, are you there? Fresno, Cal. Oh, great, okay, well, terrific. Well, Fresno, that's wonderful too, I'm glad you're joining us today. Also, one other final technical detail, if you're experiencing any trouble viewing the broadcast, please contact SpaceNet at the number that will be on your screen, that's 1-800-770-2887, and we really can't help you here in the studio if you have a problem viewing the broadcast, that's why you'd have to call SpaceNet, okay? Finally, just want to touch on some agenda items. The agenda is actually pretty simple. For the next two hours, we're going to be discussing restitution. About halfway through the program, we'll take a five-minute break. And if you've ever attended a live, or little this is live, but if you've ever attended a face-to-face seminar, you know that after the program, sometimes folks like to hang around after class and talk to the instructor's presenters to clarify a point or to ask additional questions. Well, we'd like to provide you that opportunity here today, and if you have the time, our presenters will be available here after the two-hour presentation for an additional half-hour to answer any push-to-talk or fax questions that you might have regarding restitution. Now, our goal today is pretty simple. We want to provide you with a tool, a roadmap to help you determine victims and harms when you're analyzing restitution. Now, last May, the United States Sentencing Commission and the Federal Bar Association sponsored the eighth annual seminar on federal sentencing guidelines. And while that was going on, Frank Larry from the United States Sentencing Commission was able to sit down and chat with the seminar's program moderator, Jim Feldman, who's also a defense attorney, and discuss why restitution is just so important. There seems to be a lot of interest in restitution as a topic, and I was curious what exactly was the impetus for the panel on restitution? Increasingly, people have come to realize that restitution is a very important part of a defendant's sentence. Everybody in the process has got to focus first on the element of incarceration. Increasingly, particularly with the advent of mandatory restitution, however, assuming there is an incarceration portion when that is over, or if it's a probationary matter, it's very important to the defendant what does my life look like now? Can I go about my affairs? Have I paid my debt to society? Or do I have a very, very large restitution obligation out there that I may or may not have the immediate ability to repay? And as a very important part of the sentencing process, it's just one that doesn't catch everybody's attention at the time, because it's usually something for down the road later. And one of our objectives in adding this particular topic as a panel is to try to better educate the attorneys on the importance of restitution to their clients and to their ability to go on with their life or not and the importance of that issue to their clients and how to better represent their clients. And obviously, we have a lot of probation officers who have a lot of questions about the technical aspects of how to calculate restitution, and we hope to better educate them with our program as well. Great. Thank you very much. You're welcome. I appreciate that. Okay, my pleasure. We'll be seeing more from that seminar throughout today's broadcast. But now, without further ado, I'd like to introduce to you our presenters today. Actually, they probably don't need any introduction. I'm sure they're familiar to most of you. We have Kathy Goodwin from the administrative office of the U.S. courts. Kathy's an assistant general counsel. She's been with the courts since 1993. Prior to which, she was an assistant U.S. attorney. And joining her today is Rusty Burris, who definitely needs no introduction, I'm sure. And he is principal advisor with the sentencing commissions, has been there since the beginning in 1985. And prior to that, Rusty was a U.S. probation officer. So without further ado, Kathy and Rusty. Thank you, Laurie. Good afternoon, everyone. We're happy to have you join us today in a discussion of restitution. And Kathy, once again, I'm glad to be working with you. Thank you. Glad to be here. You know, there's a lot of interest in restitution at the FJC and at the AO and at the Sentencing Commission. We get a lot of questions about restitution. We're frequently asked to come out and do training about restitution. So we know the interest that exists out there in the area of restitution. Basically, the guidelines are really uncomplicated regarding restitution. They say that if you have an identifiable victim, then full restitution should be ordered. Of course, the application of the Sentencing Guidelines must fall within any restrictions or requirements that are set by the statutes. And it's there where we find that people are having some uncertainty and some questions and some complications. So it turns out that maybe it's not so much an issue of guidelines application, but it really is a matter of statutory interpretation. There we go. A matter of statutory interpretation. So it is the statute that we're going to be focusing on primarily here today. So for those of you that have had some uncertainties about the statutes and some questions about the statutes, there is a little bit of relief actually because Kathy has done just a tremendous job in developing a document that looks at the statutory language regarding restitution and that she looks at the cases that have developed that are interpreting these statutes. And Kathy, would you spend just a couple of minutes telling us about this document? Yes, thank you. You should have a document that the cover page looks like this. It's called Determining Victims and Harms for Restitution in Federal Criminal Cases. It's about 40 pages long. The first about 10 or so we're going to be referring to often on I will be mentioning page numbers having to do with the case sites that you'll be able to find for future reference on those tables in that handout. So you may want to even just jot the page number, the handout on your notes as you go, but they will be on the pages referred to in the first half. The second half of the document is actually an excerpt of the article I wrote for federal probation in December of 1998 on restitution. It's a shortened version of it. And the more recent cases, of course, are not in that excerpt, but they are in the first few pages that we're going to be referring to. Okay, good. In developing her document, Kathy has also done us another service and that is she has come up with a five-step process and analysis for determining restitution. And I think those that have been exposed to this five-step process thus far and have tried to utilize it, have found that it is helpful because we're finding that restitution, the determination is easier when analyzed in steps. Now, as we go through and look at these steps, we'll find that the primary issues that arise and that are addressed are determination of victims, the causation of harms, and compensable harms. One of the questions of restitution reminds me of an experience that was recently shared at the National Sentencing Seminar by Judge Billy Wilkins of the Fourth Circuit Court of Appeals. Judge Wilkins is the incoming chair of the Criminal Law Committee and was the original chair of the U.S. Sentencing Commission. Let's go to the videotape and see the experience Judge Wilkins shared with restitution. When I went on the federal bench, I received at least some measure of respect from my colleagues at the bar and from the public in general, I guess to some degree that's been true. Let me give you a good example of that. Right after the first of this year, I received a letter from a fellow named John Miles. John lives in Dillon, South Carolina. That's across the state from where I live and I don't know John and he doesn't know me, but he evidently had seen my name in a newspaper somewhere. He was describing the fact that his car had been stolen. The FBI had traced his stolen car across the border in the North Carolina where he had been cut up in a chop shop and disposed of and in his letter he asked me, the bottom line was will the court pay for my car? I wrote John back a letter and I told him I couldn't comment about his particular case, but I did describe the guideline sections dealing with restitution and the federal statutes dealing with that and the restitution would be made and I wished him good luck. Three weeks ago I received a reply to my letter from John and it touched me so I brought it with me. It's only three or four lines. I want to share it with you if you permit me. It's written on Blue Horse Notebook paper. He didn't misspell my name but I'm sure he knew to whom he was writing and he says this, Dear Judge Wilkins, yesterday I went to court. I showed them your letter. They did not give me nothing. I want you no good dirty dough. Signs are mine. At least John took time to write. Kathy, I just hope we have more success in conveying information about restitution than Judge Wilkins apparently did in that instance. Before we look at the five steps and have Kathy go through those, let me give just a word of note. I know that most of you that are watching with us here today and participating have expertise in guidelines application and so necessarily you have an understanding of your relevant conduct. As you go through your guidelines application and you make your determination of the offense level, you're going through an analysis, a relevant conduct analysis, holding the defendant accountable for certain things. Things the defendant has done or maybe that others have done during the offensive conviction or in preparation or avoiding detection or responsibility. Sometimes you're even looking to the course of conduct or the common scheme or plan. This analysis of relevant conduct is an application, but as you begin going through this analysis we're going to look at for restitution, this five step analysis. You would do well to set aside this relevant conduct analysis because you're going to see that the analysis for relevant conduct is not identical to this analysis we're going to be using for restitution and in fact, the determination of restitution is distinct from the determinations of the relevant conduct harms. In mind and what better place to keep a reminder, how about going through the five steps for us? Thank you. For each case that you work on we suggest you follow the following steps. Beginning with the first one which is to simply determine are you dealing with mandatory or discretionary restitution in this case. And some times it will be neither but will address how you can impose restitution in those cases as well. The fourth step, identify the victims for restitution purposes for your particular case within the scope of your offensive conviction. The third step is to identify the harms to those victims so you stick with the victims you've already identified and go to the harms suffered by those victims as a consequence of the relevant conduct. The fourth step is to determine which of those harms there are an additional costs that we'll discuss are compensable as restitution according to the statutes. These are very tightly tied to the statutes of this step. And then lastly when you've completed steps one through four step back and look at your plea agreement in your case and see if it allows you to impose a broader restitution than you could otherwise impose using steps one through four. Now before we go through these steps we've found rusty that this works better when you have a fact scenario to apply it to and we've generated a fact scenario that we hope you all have had a chance to read. It has to do with the bank robbery, it's in the materials but in case you haven't had a chance to read it or for those of you that have read it would like to have a refresher we have prepared a summary of the scenario if you'd listen to it this time. Defending D was convicted of armed bank robbery in the first 1999 robbery of friendly neighborhood bank. In the plea agreement the government agreed not to pursue any additional charges and D agreed to pay full restitution. D claimed indigence, however based on earning potential it appears that he has the ability to pay $5,000 during incarceration and supervision. Just prior to going to the bank D had stolen a $10,000 car for his getaway. It was ultimately recovered and returned to its owner but it sustained $2,000 damage. Upon entering the bank D pointing a revolver at the tellers smashed through the door to the tellers cage causing $1,000 damage. D then took $20,000 from the teller drawers of which $10,000 was later recovered. At the same time he destroyed the bank's $150,000 security system. The destruction of that video security system required the bank to replace it. While a basic system can be purchased for $40,000 it no longer meets banking regulations minimum security requirements. A system meeting minimum requirements now costs $225,000 yet to save long term costs the bank's policy has been to purchase state of the art systems. Therefore the bank replaced the destroyed system with the state of the art system costing $300,000. During the robbery three bank employees and a bank customer as he headed toward the teller drawers D shoved teller A causing her to fall lacerating her leg. Her lacerations were treated at the hospital where initially she would only be hospitalized overnight at a cost of $3,000. However, she contracted a serious staff infection resulting in seven more days of hospitalization increasing her medical bills an additional $15,000. Teller A also missed work as a result of the medical treatments and the salary paid to her by the bank while on sick leave was $800. In addition Teller A had expenses of $300 related to court appearances. The second bank employee Teller B was intimidated by D as D ordered him to open the teller drawer. As a result of the psychological trauma Teller B required $4,000 in psychiatric treatments. He missed no work Teller A spent $300 for court appearances. D ordered the third bank employee Teller C to lay face down on the floor yet she reported no physical or psychological injuries and did not miss any work and she too spent $300 for related court appearances. The bank customer while standing in line was roughed up by D who then took from him a deposit bag containing $1,000. The bank customer was examined by paramedics on the scene but required no professional medical treatment. Finally, like the other witnesses the bank customer spent $300 on subsequent court appearances. Now we're going to be asking you questions as we work through these five steps with this scenario. Rusty how about taking us into step one? Okay and that's the easiest step up to leave Kathy. Okay in step one determine whether restitution is mandatory or discretionary. Now we have statutes that provide for mandatory restitution and others that provide for possible discretionary restitution and so let's look at those. The mandatory restitution statutes are 3663 capital A and special restitution statutes under title 18. Now 3663 capital A is a statute that was created by the mandatory victim restitution act back in 1996 and here's what is provided for there and for restitution for a crime of violence. Crime of violence is defined in title 18 section 16 for a property offense under title 18 and for tampering with consumer products. Now there are also some statutes in title 18 that we refer to as special restitution statutes that's just a term we use just for easy reference and let's look at what is covered under those statutes under title 18 section 2248 sexual abuse 2259 sexual exploitation of children 2264 domestic violence 2327 telemarketing fraud and 228 child support. So those are the statutes that call for mandatory restitution. Now the statutes that provide for discretionary restitution are as follows 3663 of probation or supervised release and that's under 3563 and 3583. Now as far as 3563 is concerned here's what's covered there. All other title 18 offenses that means all of the title 18 offenses that weren't covered under mandatory restitution certain title 21 drug offenses with identifiable victims and also certain title 21 drug offenses without identifiable victims which is often referred to as community restitution and certain title 49 air piracy offenses. Now there's also the availability for restitution as a condition of probation or supervised release and let's look at that. As a condition of probation or supervised release under 3565 B2 and 3583D Now before I go further let me make a point to you please. If you order restitution 3663 capital A or under one of the special restitution statutes in title 18 or under 3663 under any of those sections it's an order of restitution and as an order of restitution it is pretty much a freestanding sentence. Now if you have an order of restitution restitution having been ordered under one of those sections then necessarily it will become automatically a condition of supervision of probation or of supervised release but here as far as discretionary restitution is concerned we're talking about having restitution solely as a condition of probation or supervised release not an order of restitution and so it's distinct in that regard. Now this is available for any offense. Now again if you had an offense that fell under 3663 capital A or under one of the special restitution statutes then obviously it's going to be mandatory restitution but for any other offense you can have restitution ordered solely as a condition of probation or of supervised release. For instance you might have someone convicted under say title 15 a securities fraud violation or title 42 a social security fraud violation. Those offenses are not covered under 3663 A under the special restitution statutes or under 3663 but nonetheless there still could be restitution by way of solely a condition of probation or supervised release. Now one thing to keep in mind is that there are still the limitations of 3663 and 3664 applicable and basically that's going to be what we're going to be looking at now when we go through steps 2 through 5 those restrictions and requirements are still going to be applicable even when it's a condition solely of probation or of supervised release. Now Kathy can you tell us just a little bit more about the distinctions between an order of restitution and restitution solely as a condition of probation or of supervised release and the advantages or disadvantages. Yes Rusty excuse me the primary advantage is the one you mentioned that it can be imposed for any offense but only as a condition the way it used to be prior to the victim witness protection act. It wouldn't be as you said a freestanding component of the sentence or a separate part of the sentence and another possible advantage is that conceivably you could change it as you can change conditions under rule 32.1 and it's not as much finality however we don't recommend this method of imposition if you can impose restitution as a separate component of the sentence under 3663 or 3663a or one of those special statutes and the primary reason we don't is because of its major drawback and that is that it expires with the supervision it's connected to it so if the supervision expires or is revoked the restitution obligation dissolves if you will and doesn't carry on as it would as a separate standing component of the sentence so for those reasons we recommend using this only as a last resort but it is very handy for certain offenses that you can't impose restitution any other way but you mind taking us now through step one and how that would apply to our scenario let's look at our scenario in step one which restitution statute controls and why would that restitution statute control and is it going to be mandatory or discretionary restitution as a result we've got this push to talk technology with us here today so let's take advantage of that who out there would like to take a shot at our step one using our scenario Steve? Yes this is southern Ohio Columbus John DeIerna and we believe that it's 3663 capital A and it's mandatory restitution okay and John you decided that it was 3663 capital A for what reason? because the offensive conviction of crime of violence okay exactly so I think that was one of our easier questions that we'll encounter here today but thank you so much for that John and I'm glad that this technology is working with that let's go ahead and proceed to step two that came into the questions a fax came in from the eastern Texas and it is from Mike Thomas and says is there a statutory definition of property offenses under Title 18 and if not is there case law which defines property offenses I wish that had been pushed to talk so we could have had some technical difficulties actually I'm going to defer to Kathy on that I knew you were going to do that you knew it was coming your way there what do you think Kathy? I'm not sure of that I'm not aware of a definition of property crimes I'm sure there has been I'm not aware in the restitution context that that is so because we've only had the differentiation here between mandatory and discretionary restitution that made property crimes mandatory for a few years and I just haven't seen any cases that make that particular distinction I know the question has come up with say a money laundering case my hunch is that probably any case that you are adding up the dollars and using a loss amount and one of the loss tables is probably going to be a property case but maybe there might be exceptions okay well with that Laurie any other facts here for us at this time? no we don't have any right now okay let's proceed on to our next step let's look at step two step two is to identify the victims now the determination of victims and this is for all restitution statutes whether you're talking about 3663 capital A one of the special restitution statutes 3663 or solely as a condition of probation or a supervised release victims or persons harmed by the offense of conviction and then there's a little uncertainty if that's going to be limited to the elements of the offense of conviction or not now Kathy this idea of having to be harmed by the offense of conviction and then even the idea of it being restricted perhaps to the elements could you give us a little insight into that? yeah I think it might be easiest just to talk about the scope of the offense of conviction first and then I'll go to the element issue and this is one of our top three issues as we said at the beginning of the program that identification and impensability and this is actually the issue that probably courts have gotten reversed on more often than any of the others because of the difference between restitution and relevant conduct and here's where you see it the most clearly there are some cases that I would want to refer you to for reference on page seven of the handout that I talked about before and I'll just mention some of them briefly that I think might be noteworthy and you can look at them later on but these are some of the key cases on identifying victims the Hayes case in the fifth circuit and Cobbs in the eleventh are two they're not real recent cases they've been around a while because this is a pretty well established principle that you have to go with only the offense of conviction in both Hayes and Cobbs the offense of conviction was possessing stolen or counterfeit credit cards and yet the court imposed restitution for the use of those cards and the restitution order was reversed on appeal and there are several other cases that have held this in a similar situation because the offense did not involve the use of the cards the defendant was simply convicted of possessing on a certain day normally they use the day of arrest of the cards that same principle has been held to be true after the mandatory victim restitution act there are a few cases we have after the MVRA and that's the Mencius case in the fifth circuit also mentioned on page seven same situation and the court said the MVRA has not changed this particular aspect of restitution so the courts are strict when they look at the scope or the boundary of the offense of conviction there is another case that I think is very useful here that's the Blake case also mentioned on page seven excuse me and that's the fourth circuit and it was written by Judge Wilkins who we saw just a little while ago and we talked about this case at the conference in Florida in May that Laurie mentioned at the beginning of the program we wanted you to see the tape of that particular discussion and when you're starting at the beginning of this concept Blake is a wonderful case it's a good teaching case because what Judge Wilkins does is he analyzes the sentencing reform act issue of the victims as vulnerable victims under the guidelines at which time you consider all a relevant conduct and then he has both issues on appeal are they victims for restitution so it makes a beautiful contrast and he upholds the vulnerable victim adjustment and reverses the part of the restitution that had to do with the elderly women's purses not the part of course that had to do with the use of the card because the conviction is use and not possession or theft as a former prosecutor for 10 years I know why you see an awful lot of cases where isn't it common to see possession of stolen credit cards or possession of fraudulent credit cards no matter what the facts if they actually arrest the person and they've got these cards that's what they like to plead him to because it's easy right it's a cost-benefits ratio it's real easy to prove they had him on their person the day of the arrest well that was before we had to consider restitution issues the way the law has been defined now so the government needs to start thinking about this because if they are pleading him to just a possession you're not going to get the restitution for the use of the card Blake the offensive conviction in that case as it might have been clear was actually use of the cards but the court was trying to impose restitution not only for the use but the theft of the purses from the card holders and that part of the restitution is what was reversed in Blake you mentioned the how much does the offensive conviction have to have an element of a scheme this is one area that is a little confusing at times under the law the expander that restitution has relevant conduct is the expander for guideline computation the expander if you will for restitution purposes might be considered the provision that has to do with the warding restitution for the entire scheme conspiracy or pattern of behavior as long as that is an element of the offense the statute provides that it needs to be an element in most cases most courts have taken that rather seriously that's why we didn't have an expansion of the restitution in Blake and some of these other cases beyond what was actually in the offensive conviction it was not a conspiracy count there was not an element that would have that expander in it I would note though in reading the cases in the across the country the 8th circuit has some cases I have cited at page 7 that seem to not be scrutinizing the offensive conviction for this element aspect as strictly as other circuits and those are listed there they look more does the scope of the evidence in the proof-it-trial or in the indictment they'll use phrases like that show that this was a scheme or a conspiracy or pattern so just know there is a little bit of disparity in the way that's being interpreted but by and large it needs to be an element now Rusty there's two other cases I wanted to mention both cited on page 7 that I think might be helpful to our viewers one of them is the MacArthur case in the 11th circuit and that had to do with possession felon and possession of a firearm was the offensive conviction and originally there had been a 924 C charge that was acquitted and there was a victim who was injured by the shooting of the gun in the altercation that gave rise to this conviction and the court understandably impose restitution for the medical cost to the victim of the shooting but the circuit court reversed the restitution saying the same thing just in the credit card cases that this was an offense of possession of the gun and not of the use of the gun and I also cite a case on excuse me on page 7 the Cuban case that goes the other way in the relevant conduct context with the felon and possession offense so it shows that what you do with this victim changes whether you're looking for restitution or whether you're looking for sideline computation and a felon and possession count and then lastly in a slightly different issue one of the things we get a lot of questions on Rusty is identifying victims in boiler room telemarketing cases where there are an awful lot of victims and sometimes you have sketchy information about them and how far do you have to go you could literally identify victims perhaps into the future indefinitely the only case that I've seen that really helps us with the telemarketing case like this is the Grimes case that is on page 7 7th circuit it's very recent 1999 and they give us some interesting guidance first of all the court identified everyone all the victims it could by the time of sentencing and then that was it they were actually were reversed for not using the 90 day continuance provision that came in with the mandatory victims restitution act and the appellate court said that the courts have to use every means they can to identify as many victims as possible and using this provision but then they seem to imply that that's it you don't have to go forever that if you have done this 90 day continuance and done everything you can that there are provisions for coming back in for newly discovered losses and that you don't the defendant deserves some finality in other words but they urge the courts to use that new provision that came in with the MVRA the other thing I think is interesting is the provision itself and the court quoting this provision talks about identifying victims not necessarily locating or finding them sometimes that takes a little extra time but we think you need to at least have some indication that you're going to be able to find them some identifying factors by them but I think the Grimes case might be helpful for any of you that have a telemarketing case good you want to take us on into the scenario now applying this step to let's utilize our scenario in trying new step two the question we have is who are the victims of the offensive conviction of robbery how about the bank anyone out there want to tell me why you think the bank would or would not be victim of this offensive conviction of robbery and if so why a little hesitant out there Kathy let's see we actually know who you are let's see we have Buffalo New York we know that y'all are wired up with us today how about it Buffalo we had trouble in understanding that didn't you Kathy did you say something well maybe I'll call on someone else how about Louisville Kentucky this is here San Antonio the home of the San Antonio Spurs Mike Fisher speaking we think the bank is a victim because it was directly and approximately harmed okay now San Antonio thank you Mike is saying that yes they think the bank is a victim of the offensive conviction of robbery and certainly from having listened to Kathy's discussion you've got the elements of the offensive robbery those things that happened during the force and intimidation and taking property of a federally insured institution that sure seems to encompass this bank so thank you Mike for answering that for our first potential victim there how about tellers A B and C you know where the tellers is going to be considered and let's take them one at a time at least initially are the tellers going to be victims of this offensive conviction anyone else want to take a stab at it out there okay now Chicago's weighing in they say they think teller A would be a victim do you have a reason as to why you would include teller A as being victim to go to the hospital and then she had a fast infection that incurred more costs regarding treatment okay now actually you may be answering question step two and maybe actually steps three and four as well here perhaps but for step two purposes yes I would agree that in the establishment of the force and the intimidation that are part of the elements of this offensive conviction of robbery this teller teller A initially was brought in to that parameter so teller A would be does anyone think that tellers B and C would be any different from the analysis for teller A this is the northern district of Texas Carolyn Hodo we believe that tellers B and C both are victims same as teller A basically for the same reason they were all harmed during the course of their duties as a teller at the bank so as such we believe that yes B and C are both victims as well okay thank you yes in the establishment of the force and the intimidation again within the elements of the offense they were victims of this offense of conviction as Kathy had conveyed to us so I think the tellers would certainly be included as victims as well now let's look a little further how about the owner of the auto that was stolen for a getaway car who wants to weigh in on that person we're going to sit here with an uncomfortable silence it looks like would anyone think that they would not be included Dave Walden you see offensive conviction you might say no but this is a scheme circuit so here I think we would take a position yes it would be included okay now I think we had a little overlay there I'm not really sure who answered the question that probably most of us heard but they were saying that because it was a scheme they would include that now again as we discussed this case among ourselves I know that in looking at the elements of the offense of robbery you look at the establishment of the force and the intimidation and taking the property from this federally insured institution in looking at that we could certainly include the bank we certainly included the tellers but then it was sort of hard to figure out how this owner of the automobile fell within those parameters and we're going to come back to that in just a second and maybe have Kathy give us a little bit of her insight in that regard let's move on to our next potential victim though before we go to Kathy the next potential victim being the customer who would have included the customer I'm inclined to think that the last respondent who said that because the owner of the getaway car somehow was swept up in the scheme that you probably would have included the customer as well anyone else want to give their indication whether they think the customer would be included as a victim of this offensive conviction of robbery Keith Hayes in Atlanta can you hear us oh yes I can always understand anyone from Atlanta go ahead we feel that he would be a victim of this offense the money was taken from him by force within the bank and the cash receipt deposit bag that he had was used in the event of the bank robbery okay so during the establishment of the force and the intimidation of this robbery again this person was swept up at that now I had said that we were going to go to Kathy maybe to get some of her insights Kathy I know we have this owner of the automobile and certainly that person has been victimized you have this guy inside the bank the customer and certainly that person is victimized but with this analysis of looking at the offensive conviction was this person victimized by this offensive conviction and particularly as you begin looking at the elements are these people probably going to be considered victims and could our factual situation be changed a little bit that might include them or exclude them I think these types of calls are going to be very fact driven in all the cases and maybe one of the reasons we put a couple on the line here is to illustrate that the answer may vary not only with courts but across the country and according to the facts that you have I am inclined to think the customer is more likely to be included than the car owner and I know there are pre-MVRA cases that rule out the owner of getaway cars and bank robberies we actually have a few on that point but we're not sure whether the new terms that were brought in with the MVRA in 1996 might change some of this analysis slightly my guess is that we don't think it's going to change it dramatically it might around the edges for example the customer if the customer is robbed inside the bank during the course of the intimidation and even as the robbers are leaving to continue intimidating everyone that's probably going to be close enough to within the offense to be considered for purposes with most courts but if the customer were robbed out on the sidewalk leaving or see it out in the parking lot there comes a time when you're not within the course of the robbery and it would be included for relevant conduct purposes I'll get you wrong but it would for restitution the courts have interpreted the statutory term offense of conviction to be much stricter than what we do with the guidelines under the law but I will say that it's hard the one way that our steps blur occasionally is you might under the analysis approximately for example under the new terms we're going to get to a little bit later bring in some of these borderline victims especially like a customer let's say that's robbed on the way out of the bank for example I'm not sure whether it will go as far as a car owner or not and Judge Wilkins in the Blake case I might say laments in the case he says we're not real happy with this result but this is a statutory construction issue and this is the way the courts are interpreting it now the caller that said you're in the scheme district circuit I assume you meant you're from the 8th circuit and I have to admit there's a couple 8th circuit cases that might under these facts include the car owner I see so it does vary by fact OK are there any questions about our step 2 that we just have gone through for those of you who have pushed to talk any questions out there we'll hear a little bit of clicking but I don't hear any talking so I'm assuming that they're still with us up to this point I realize what happened with Buffalo and Louisville they remarked as not being connected and we thought the mark meant you were connected so our apologies in the accentuate Louisville and Buffalo but now we're reading our list right so we'll know who to call they didn't want to talk they just didn't have the capability they're right there so we know you know the answer out there will that be in the case then let's go back to Laurie OK well now we're about to take our 5 minute break so please keep your facts coming I should mention before that we do have some facts is in in fact we got some yesterday and this morning so we are getting them in we just want to include them in the appropriate step we're holding off on asking them right now but please facts your questions in and take a 5 minute stretch or so and we'll see you back in 5 welcome back hope you enjoyed your stretch for 5 minutes or so we haven't received any new facts so I'll just turn it back over to Kathy and Rusty here we are glad to be back with you and we're going to resume and we'll begin looking at step 3 step 3 is identify the harms of the victims and here the issue as we mentioned earlier is the causation of harms and the harm must be caused by the offense of convection and then we have these words directly approximately that were introduced by the mandatory victim restitution act back in 1996 a little uncertainty there because we think they can expand or limit the harms that will be included probably will slightly expand these terms directly approximately Kathy was even making a little reference to those when we talked about step 2 but in step 3 that's really where we feel that language probably comes into play and so we've held it off to this step that we're looking at now unfortunately directly and approximately is not defined for us by the statutes and there's only limited case law since the mandatory victim restitution act that gives us some insight now Kathy I know your document gives us a lot of case law and a lot of issues regarding restitution but there's not much there on this issue about directly and approximately can you give us your insight as to what you think perhaps directly and approximately is going to end up meaning okay this is educated guessing but we'll do the best we can one of the few clues we have is some legislative history and the legislative history talks about that there must be a clear causal link between the harm and the offense of conviction that's not real helpful but at least it is telling us that there needs to be a clear link not a maybe link directly and approximately are different directly conjures up the idea of nothing interfering a direct line of causation no unrelated intervening causes if you will so one of the cases we're going to talk about talks about intervening causes and they say that it's not direct if something comes in and it's not related to that but if it's related it's still in the direct line of causation sometimes we talk about but for causation one of those lawyers favorite terms meaning cause and effect everything you do now has an effect ripple effect downstream somewhere but as a society in tort law and in contract law and in criminal law to a certain extent we decide to draw the line of liability for someone at some point that is reasonable for that and not just infinitely into the future causation we normally call that line approximate cause line and the second word we're dealing with here is proximately which brings up the idea of approximate cause and to in the law that usually means the line at which we're going to hold someone liable because normally there was a reasonably foreseeable aspect to it that the defendant could foresee that the harm is going to result could have or should have foreseen that harm is going to result from his or her conduct and it can't be too far removed in time or facts in other words it's approximate close in relationship but we have very very few cases on this as you mentioned there are a couple and I wanted to bring the viewer's attention to some cases on page 8 I've collected some of the more recent cases on causation there are a few beginning to come down and actually we have a couple that actually mentioned the word proximately in it and begin to give us some analysis there the first case I wanted to mention is the menza case on page 8 that's in the 7th circuit and it's an interesting case to remember the fact scenario kind of helps make the point that the harms for restitution have to be caused by the offense and can't include harm beyond what was caused by the offense in the menza case the defendant had a meth lab and his apartment unbeknownst to the authorities until it exploded and caused the significant damage to the apartment he was eventually convicted of the meth offense and then when it got around to restitution time the court ordered restitution to the landlord for cleaning up the apartment after the explosion and getting ready for the next tenant and to the government I think it was the DEA for disposing of all the chemicals that were found at the site some of them legal and some illegal the court of appeals and this is just last year in 1998 reversed the restitution order and sent it back for the court and how much of those harms were actually caused by the offense the meth lab offense in other words the landlord had some expense always in turning over an apartment to the next owner so the court would have to go and back out the usual or routine expense and as far as the government destroying the chemicals or disposing the chemicals the court said this is what the government does it's their business to do this this wasn't extraordinary in this case there were other drug cases that the agency had to destroy and I don't want anyone to get confused that this was not reversed on the basis that the government can't be a victim it's just that under these facts the government wasn't a victim for disposing of these chemicals so that shows you how strictly some of the courts are drawing the line here on the other hand there's on the same vein actually as the Cottonman case also cited on page 8 and 3rd circuit cases too as well that hold that restitution cannot include buy money buy money is money that the government gives a defendant for buying in a reversing drugs or guns or something like that and then of course the government would like to have this money back and what the courts have said is it's better to impose a fine if that's the case but the government really isn't a victim in the sense of having had this harm caused to them this is their cost of doing business buying money is a particular situation that we do have several cases on we do get questions on that one is pretty well settled I'm going to a little bit deeper level of analysis here I wanted to point out the Mexian case on page 8 9th circuit 1999 very recent and actually as far as I know one of the only cases that talks directly about well actually in this case and it says it's not under the mandatory victim restitution act but the difference wouldn't have been the outcome wouldn't have been different the court said so in a way they are saying that they don't think the words approximately added to that would make any difference what Mexian does is give us a wonderful analysis of intervening causes and sometimes a lot of times you'll have one cause and then you have something that comes along and adds to that or exacerbates that cause and if it is related to the original conduct what the Mexian court says that is included into the harm whereas if it is unrelated such as a market price going up or down drastically something not caused by the defendant then it wouldn't be included in the restitution harm and the 9th circuit examines four facts scenarios the one in the case and then three others of its prior cases reconciles them all showing how two of them had related intervening causes and two of them had non-related an example of a related intervening cause was a defendant who assaulted a victim well a better one might be a defendant who talked a couple of co-conspirators into assaulting somebody and threatening them they hadn't kidnapped and actually it resulted in the death of one of the victims and the defendant argued I only asked them to I gave them these guns and I asked them to go threaten this person and they did the rest they added to it they were what you might call an intervening causation or a cause and the court held that no this was too closely related it was an additional fact but that it wouldn't have happened but for his getting them in motion and he could have should have foreseen or should have known that they might get carried away and go further so that would be a related intervening cause the mexian case had to do with a bad loan false statements on a loan but where the bank got a bad environmental impact study and didn't know that the property was polluted and when the defendant defaulted on the loan they couldn't recover their money because of the environmental problem and so there was an unrelated intervening cause so some of you are going to get some cases as people focus on restitution more and more that have more than one cause and you need to analyze it in terms of how closely connected to the original offense conduct which is what you're focusing on for restitution these other factors are in our scenario for example we have some intervening cause having to do with the staff infection that we're going to analyze in just a minute when you're going to work with the collars and see what you think about that but that might be considered an intervening cause another thing I wanted to mention on page 8 is the Hayes case this is another Hayes case second circuit case and this case I think is very helpful it's last year very recent explaining two things cost can be restitution as well as harms that's why we in our steps we've started saying harms and costs because in this case it was the cost of the victim to obtain a temporary restraining order and then the defendant then later violated the temporary restraining order and crossed the state lines and that was the offense for which he was convicted under the domestic violence statutes and the defendant argued that this cost to the victim occurred prior to his conduct and how could it be caused by the conduct if it's happened even before much less outside the time frame and the second circuit didn't have any problem upholding that restitution they said that there are other types of restitution that is compensable and we'll get to that in our next step this is a little preview for that that occur after conduct for example witnesses fees and testifying and expenses and cooperating with investigation and so it doesn't necessarily have to be right during the conduct and this was tightly tied to the conduct and actually a necessary predicate for the conduct so they upheld the expense they were also dealing with one of those special restitution statutes it has slightly different wording in it having to do with all losses which we want to keep in mind so it may or may not be applicable or analogized to other cases and then finally the last case is kind of a reassuring case the supposinate case and the seventh circuit on page 8 I think it's reassuring because the circuit court is telling us here that you don't have to be rocket scientists that this is the best estimate that you can come up with for restitution is good enough if that's all you can do and the supposinate case that was otherwise a very popular and well received effective police chief of a small town who received some bribes during the course of his four years as police chief and so a portion of the services that he rendered the city were corrupt if you will as a cause of this offense and the court was tasked with trying to figure out how much restitution should be imposed as how much of a measure of the four years service was a result of this corruption and how much of it wasn't because everyone agreed evidently that there was some good service provided as well the court awarded one of the four years salary as restitution for the police chief to pay to the city and this was upheld so there are some cases coming down beginning to come down that are quite interesting that would maybe give you guidance if you have a case such as one of these that you could apply the reasoning to Rusty how about taking us through our bank robbery scenario now a big clue in the intervening causes issue maybe it will help out applying this step glad to do it let's look at step three and how we apply that identify the harms to the following victims of the offensive conviction of robbery the bank okay again going back to push to touch push to talk if y'all give us your insights what do you think the harms were to the bank here in this case I believe they took the break and didn't come back yet let me see who's watching with this here how about Grand Rapids Michigan we have you listed as being on push to talk you have any harms that you think the bank suffered that you think were directly approximately caused by this offensive conviction of robbery okay how about one of the New York locations maybe we're still reading the list wrong Kathy it looks like I may have to answer this myself okay the harms to the bank that we think were directly approximately caused certainly the loss of bank loot they had bank monies that were taken we think that would be a loss we had damage to the tellers cages that occurred we think that would be loss it would be a harm and we also had the harm that resulted in the destruction of the security system that the bank had so those of what we think would be the harms that were suffered by the bank the direct approximate cause of this offensive conviction and having looked at the bank let's see what other victims we've identified and what harms they have suffered tellers a b and c again I think we'll have to take these separately because of the different harms that they may have suffered teller a who would like to say what harms you think teller a suffered we've identified teller a as a victim now so now we have to our next step that we're under step to determine what were those harms directly approximate cause this is Ohio Southern Columbus we would say that the medical bills would be covered as well as the lost wages okay thank you Ohio Southern and it really you might be jumping almost into step four course because right now we're just trying to identify the harms I'm going to assume that since you think that those were things that would be compensable that you think the harms were the physical injury to teller a as well as the loss of the sick leave to teller a so I'm going to make that assumption from what you're saying now in terms of the the injuries to teller a are you talking just about the laceration to the leg or are you talking as well about the staff infection that was contracted and the person was further hospitalized we're talking about both okay you're talking about both so you think that certainly the laceration to the leg seems to be an easier call but even the staff infection that occurred once the person went to the hospital you think that that would be included as well yes we do Kathy I know you mentioned earlier when you were talking about the case law that the staff infection has occurred it has to be directly or approximately and I know you even mentioned a case one time where the person had gone to the hospital and something else occurred you want to talk just a little bit about that actually that happened here in DC they show you fact is stranger than fiction a stabbing victim was in the emergency room and the emergency room caught fire and was burned and of course it wasn't they were analyzing restitution but there is a famous restitution case that talks about a rape victim being injured in the fire in the hospital that would be what we might call an intervening cause it certainly but for being raped or being stabbed these people would not have been there to be harmed so it is in the line of causation but like I say in civil law and criminal law we draw the lines of liability along some sort of approximate cause line where we look at was it reasonable that this might be foreseen for example or is it just a natural another way to look at it is a natural consequence of the actions is it almost always follow or often follow the case of the fire probably not that would be a big leap but in the case of a staff infection I could imagine there would be some testimony on this issue in such a case as to how often staff infections are contracted in hospitals if it's something that is reasonably foreseeable that would follow in the natural course there wasn't anyone else there causing that necessarily in an intentional way you don't have any intended defendants coming in with malice doing anything this just happened and it was a result of this and it happens frequently enough to be considered a consequence of it I think it would be considered part of it okay so the harms to Teller A were the loss of the sick leave and then also the injuries both the injuries from the laceration and from the staff infection any other harm to Teller A are costs that were incurred okay well the court appearance is what I'm sort of fishing for I mean she lost money related to having to make court appearances in our scenario now how about for Teller B anyone want to say what harms you think were suffered by Teller B yes this is the northern district of Texas Dallas home of the Dallas stars by the way Teller B incurred the psychological trauma which would be direct harm okay any other any other harm to Teller B well the court appearances okay that's what we're looking for for Teller B how about for Teller C okay I think Teller C was just the court appearances as I recall from the scenario those were the only harms that the Teller C suffered as a result let's continue on looking at our victims how about the customer what were the harms that were suffered by the customer anyone out there with the push to talk site and you say well why did we bother getting pushed to talk had the $300 we got broke off on that answer were you saying something about I think they were having too much fun they just couldn't stick with the answer long enough but yes okay so the loss of the money the money in the bank bag the injuries to Teller I mean to the customer and then the court cost appearances the court appearance cost so those were our victims and the harms that were suffered by those victims now you notice in our analysis here's where you're doing step 3 we haven't listed the owner of the car that was stolen for a getaway the reason for that is back at step 2 we didn't include the car owner as having been a victim so once you exclude someone from having been a victim and you get to step 3 then there's no analysis required for that particular person because they aren't a victim we just do this analysis based on those having been determined to be victims I will address you that occasionally you need to go to this step to help you analyze the victim too they overlap in a couple of these cases where you're looking at the causation to decide how broad to draw the lines but we thought remember we tried the steps in several different orders and we thought this was the best order to leading the best result most of the time so there can be a little fuzzing between the lines of the steps there is that's a good point to make any questions out there before we move to step 4 you didn't have any answers I do have a question northern district of texas this is regarding the car owner if there was some evidence or some way to establish that the bank robber stole that car specifically to you during the course of the bank robbery could he be considered as a victim under those circumstances well again the analysis as I understand it and Kathy I will certainly let you jump in here as well we were trying again in determination as to whether someone was a victim or not we looked to the offense of conviction and the elements of the offense and while that car may have been stolen for purposes of use in the robbery it didn't seem to fall within the establishment of force and intimidation and the taking of the properties that were federally insured I don't know Kathy would you have a different read that's where we are right now in our analysis but I would encourage you to at least frame this issue for your courts because there may be some courts that would be willing to push the envelope a little bit with the new language of directly approximately harmed and if I gather I'm just postulating a situation where the car is stolen only for that they steal it and almost immediately go or it has some characteristic that's useful for them for that bank robbery and that's the only reason they stole it for and it's close in time those are the kind of facts that I think might allow a court to maybe expand the approximately analysis into including that car owner I'm just saying I think most courts at least on past case law would not have included that so if that is indeed the case if that were to occur it really would be that the courts would then start taking almost what we see currently as being step three and incorporating that more into step two using the approximate determination more in making the determination as to who is a victim that's right yeah okay any other questions okay that being the case let's proceed on to step four step four is determine which of the harms and or costs that we've now identified are compensable according to the statutes and the various statutes provide for certain things to be compensable and of course something has to be compensable under the statutes for there to be an order of restitution for that harm so let's look at those compensable harms and costs under 3663A 3663 and as a condition of probation or as supervised release for property loss return or pay for that property for bodily injury or death the medical expenses, the professional expenses the lost income, funeral expenses things of that nature and then any cost incurred by victims related to participation in the investigation and the prosecution of the case now the special restitution statutes that we've talked about earlier those have a little different language actually it seems a little broader so let's look at that compensable harms and costs for the special restitution statutes all losses suffered by the victim as approximate result of the offense and then additional specific losses are even included at three of those special restitution statutes that would broaden it even further okay now that being the case let's go to our final scenario step here, step four and see what the outcome would be determine which of the identified harms to the following victims are authorized for restitution the bank okay now we've identified some harms to the bank so which of those harms are going to be compensable anyone wants to tell us looking at the various harms we've identified that were suffered by the bank which ones will be compensable the loss of the money that wasn't recovered and the damage to the bank's property okay now eastern virginia you say the loss to the bank of the bank's property I think you're still holding the push to talk down which is where it keeps us from being able to converse with you there so the loss of the bank's property the bank loot in that regard since ten thousand dollars was recovered I'm assuming you're talking about ten thousand dollars would be compensable to the bank in terms of the bank loot and you mentioned the damage to the bank's property now the bank had damage to their property in a couple of ways they had the damage to the teller's cages and they also had the damage to the security system now I don't know that there's any issue about it being a thousand dollars that would be compensable for the teller's cage but eastern virginia did you have a dollar figure that you associated with the restitution for the security system no but I don't think they should be able to upgrade their system and get all that I'm not sure they should be able to get all of that for the upgraded system okay I assume everyone picked up on that that he didn't think that they should be able to upgrade their system now of course the bank had a security system they bought fifteen years ago state of the art they had a security system today for I think it was like forty thousand dollars but that wouldn't meet banking standards they couldn't open their doors and operate with that system so they would have to buy a system that cost at least as I recall two hundred twenty five thousand dollars to be operational once again but they said we don't ever buy just the low end equipment we always buy state of the art it's more economical for us in the long run to do so it's better business and so we always buy and purchase so I'm assuming from what you're saying eastern Virginia you don't think they should have been able to buy the three hundred thousand state of the art how much lower though did you think that would be compensable two hundred and twenty five thousand okay two hundred twenty five thousand two hundred twenty five thousand and you think two hundred twenty five thousand for what reason because certainly that is a more expensive system than even they had before it's a replacement cost okay now Kathy in terms of this idea of replacement cost you know here they had the system we've talked about the various dollar figures associated to give them a system this expensive two hundred twenty five thousand dollars what would be the justification for that under the statute the statute talks about in the case of property loss or damage to return the property or when that's not possible replace it with the greater amount of the property what it was worth at the time of the offense or at the time of sentencing it doesn't really help us that much for this situation a lot of time statutes are difficult to apply to real life what is the replacement cost as the caller from Virginia said there's an issue as to what you're going to replace it with most of the time you can replace things in several different ways in the scenario in such a way that the prior equipment that was damaged was grandfathered in if you will I guess under the current regulations and the regulations have gone up and maybe the next time they got certified or whatever they would have to meet them but for the time being they were they were operating with what would not now be qualified equipment so to replace that wouldn't really put the victim in the place that the victim bank was prior to the offense or the vehicle equipment maybe but if it wasn't certifiable they couldn't operate it so I think most courts would say that this was not restoring the victim to the way the victim was before and the main point I wanted to make is actually the term and concept related to the term and concept of restitution and underlying it is the concept of restoration restitution they come from the same root word as far as I know but it sounds like they do and the idea is not to punish the defendant it's not to make the victim better even if the victim would claim and they probably would that we wouldn't have realized we needed the better system but for this offense occurring and that it saves us money in the long run I think that the proper restitution amount is the amount that would bring the victim up to what the victim had before the offense which was an operating system so in this case I would lean toward the $225 award okay we have some other victims we'll look at and see what the harms were to those victims that are going to be compensable tellers A, B and C and for teller A we've identified some harms to teller A which of those harms are going to be compensable who wants to weigh in on that? this is the northern district would not her medical expenses $3,000 and then the $15,000 for the staff infection plus the court appearance for $300 okay and then how about the sick leave that was lost? yes sir that also and that was $800 but my question was or is is that not the bank's loss but I'm not certain of that that's a good question this woman she was out of work for a week she used her sick leave she got the $800 that she normally would have gotten for being at work during that week Kathy how does that play out this woman got her money how would that be restitution to this woman she's a victim she had this harm but is there something there that's going to be compensable? can I jump ahead to one of my cases I bailed myself out on page 10 that actually addresses this a Jacobs case I had to do with annual leave and the victim of a bodily injury suffered bodily injury one of the things that you can compensate for bodily injury is lost income or wages and the court said that the value of the annual leave that she took for the injuries was income to her that's worth a certain amount of money I too have thought how would that actually be who would that be paid to and I either if the bank would reconstitute her leave so that she basically gets that money that time paid for and give her another weeks leave then maybe the bank would be compensated but otherwise she would be compensated because she had used that leave so at least you have one case very recent Jacobs 1999 dealing with annual leave and it looks like especially if you have the statute to tie it to and they're under bodily injury you have the lost income lost wages terms and the statute that the court used to compensate and they were upheld okay how about for teller B which of those harms for teller B will be compensable this is Keith Hayes in Atlanta we believe that if you can define psychological harm as a bodily injury you can compensate her for the $4,000 but you have to define psychological injury as bodily injury that's an excellent point you make down there in fact that's been one of the things that we aren't so certain that teller B is going to get compensated for because the statute requires that to be compensated for psychiatric care perhaps that might have resulted from physical injury and teller B in our scenario did not suffer any physical injury if the physical injury can somehow or if the psychological injury can somehow be shown to be almost a manifestation of some kind of physical injury or to have manifested itself in some kind of physical injury perhaps that might be a possibility otherwise