Unpublished Disposition, 862 F.2d 875 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Richard Allen Ward challenges the district court's order of restitution under the Victim and Witness Protection Act (18 U.S.C. §§ 3579-3580). We affirm.

* FACTS AND PROCEEDINGS

Appellant Richard Allen Ward was employed as a truck driver by Sun Freightways. In April of 1985 he was indicted under 18 U.S.C. §§ 2 and 659 for theft and possession of goods stolen from his employer's shipping terminal. Pursuant to a plea agreement, Ward pleaded guilty to a superseding information charging him as an accessory after the fact in violation of 18 U.S.C. § 3. Ward's presentence report, the accuracy of which he does not dispute, details his actual involvement in the theft, and his confession to his role as a principal.

As part of his sentence for being an accessory after the fact, the district court ordered Ward to make restitution under the Victim and Witness Protection Act, 18 U.S.C. §§ 3579-3580 ("VWPA") for losses sustained by Sun Freightways as a result of the theft.

II

ANALYSIS

Ward argues on appeal that his conviction as an accessory after the fact cannot support the district court's order for restitution for losses his employer suffered due to the antecedent crime of theft. We disagree.

The VWPA allows a trial judge to order a defendant to make restitution "to any victim of the offense." 18 U.S.C. § 3579(a) (1) (1982). The term "offense" has been construed to "require that the defendant make restitution only to victims of the offense for which he was convicted." United States v. Durham, 755 F.2d 511, 512 (6th Cir. 1985).

Sun Freightways was a victim of Ward's offense of conviction. Ward's actions in carrying out the crime of which he was convicted, being an accessory after the fact, were part of a chain of events which caused harm to Sun Freightways. Under the VWPA, the government is not required to prove that the defendant was directly responsible for the loss. United States v. Spinney, 795 F.2d 1410, 1417 (9th Cir. 1986). The term "victim" has been broadly construed by courts interpreting the VWPA. Thus, a "victim" is a "person who suffer [s] injury as a result of [a] defendant's actions that surround [ ] the commission of the offense, regardless of whether the actions are elements of the offense charged." United States v. Durham, 755 F.2d at 513. Under this definition, Sun Freightways was clearly a victim of Ward's offense. Ward's admitted participation in the theft itself involved precisely the sort of "actions [surrounding] the commission of the offense" covered by the VWPA.

Moreover, "in determining the amount of loss to a victim for purposes of awarding restitution under the VWPA, the district court is not limited by ... the specific transactions alleged in the indictment." United States v. Hill, 798 F.2d 402, 406 (10th Cir. 1986). See also United States v. Pomazi, No. 86-5129 at 7767 (9th Cir. 1988). All that is required is that the amount be supported by a preponderance of the evidence, after the trial judge takes into account evidence produced at trial or at the sentencing phase of the case. United States v. Hill, 798 F.2d at 402. The presentence report detailed Ward's participation in the theft which caused Sun Freightways to suffer a loss. The district court was entitled to rely on this information in imposing restitution under the VWPA.

The circumstance that the prosecutor decided to permit Ward to plead to being an accessory after the fact, rather than to the crimes of theft or possession of stolen property, cannot be utilized to thwart the compensatory objectives of the VWPA. "The decision of a prosecutor to indict a defendant and the manner in which a defendant is indicted have little, if anything, to do with the objectives of the VWPA. For instance, a prosecutor's decision to charge a defendant for one or more counts of an offense is discretionary, and that discretion is exercised taking into consideration law enforcement objectives which have nothing to do with the congressional objective of compensating crime victims." United States v. Hill, 798 F.2d at 405. Thus the fact that Ward ultimately pleaded guilty to a reduced charge in this case should not limit his victim's ability to recover under the VWPA. Rather, " [p]erpertrators of crimes should bear the full consequences of their criminal acts to the extent that this is possible. Neither innocent victims nor society should bear any of the resultant cost." United States v. Mounts, 793 F.2d 125, 128 (6th Cir. 1986).

AFFIRMED.