Eighth Circuit Reverses Anthrax Scare Restitution Order

You know how it's super-funny when one of your clients sends someone an envelope full of fake anthrax spores, except that it's not actually funny because it's illegal?

Today's Eighth Circuit Court of Appeals appellant clearly did not get that memo, but still found a way to prevail before the court.

America Haileselassie sent the Bettendorf, Iowa Police Department an envelope containing white powder and a letter reading: "Detective Bryan Payton; You are a Dead MeaT; I will kill you all You son of a Bitch!; Enjoy the Anthrax Spores!" It didn't take the Iowa State Hygienic Lab long to figure out that the powder in the envelope was not anthrax. It took the lab considerably longer to determine that it was a somewhat less deadly combination of baby powder and carpet cleaner.

Haileselassie ultimately pleaded guilty to mailing a threatening communication. He was sentenced to 21 months in prison, and ordered to pay restitution in the amount of $1,401.44 to cover the lab costs from analyzing the powder. On appeal, the Eighth Circuit reversed the restitution order because the government had failed to provide the amount of actual loss to support the order.

The Mandatory Victims Restitution Act (MVRA) provides that a defendant who commits a qualifying offense must pay restitution to a victim who was directly and proximately harmed by the offense. To qualify for MVRA restitution, an offense must be violent and affect an identifiable victim.

The Eighth Circuit Court of Appeals agreed that Haileselassie's threat to injure Detective Payton was an MVRA qualifying offense, but reversed the restitution order because restitution cannot be ordered to cover the costs of investigating and prosecuting an offense.

The evidence in support of the restitution order showed that the lab spent approximately 18 hours analyzing the powder that Haileselassie sent. After determining that the powder did not contain anthrax, the lab conducted further analysis to determine what it did contain.

While the Eighth Circuit noted that the costs for the initial, it's-not-anthrax determination might constitute an involuntary loss, the costs associated with the additional analysis were a voluntary cost of criminal investigation which cannot be covered by a restitution order.

Related Resources:

• U.S. v. Haileselassie (FindLaw's CaseLaw)
• Untimely Restitution Order Upheld (FindLaw's Supreme Court Blog)
• Proximate Cause Necessary for Child Porn Restitution Order (FindLaw's Second Circuit Blog)