United States v. Cyrus Hussong, 778 F.2d 567, 10th Cir. (1985)

778 F.
2d 567
UNITED STATES of America, Plaintiff-Appellee,

v.
Cyrus HUSSONG, Defendant-Appellant.
No. 84-2333.
United States Court of Appeals,

Tenth Circuit.
Dec. 2, 1985.
Douglas W. Curless, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller,

U.S. Atty., Denver, Colo., with him on brief), for plaintiff-appellee.
Frank J. Woodrow, Woodrow, Roushar & Carey, Montrose, Colo., for
defendant-appellant.
Before HOLLOWAY, LOGAN and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
This is an appeal from the affirmance of the United States District Court for the
District of Colorado of a condition of probation imposed by a federal magistrate
under the Probation Act, 18 U.S.C. Sec. 3651. Defendant was convicted of
placing six hunters on federal land without obtaining a permit to do so, and
giving false information to a National Forest System officer. As a condition of
probation defendant was required to pay each of the hunters $650 as restitution.
Defendant appeals this condition of probation.
Defendant Cyrus Hussong conducts a guide and outfitting business for hunters
from his home in Montrose, Colorado. Defendant rents equipment to hunters
and packs their gear in and out of hunting locations that he selects. Often the
hunting locations are on federal land. Federal regulations require an outfitter to
obtain a permit prior to placing hunters upon land administered by the National
Forest System. 36 C.F.R. Sec. 261.10(c).
Defendant placed six hunters in the High Mesa area on National Forest System
land in November of 1983. He had not obtained a permit to do so. When asked
by a Forest System official if he had any hunters in the High Mesa area,
defendant replied that he did not. Forest System officers then discovered the
hunters, and informed them that they had to leave.
4
Defendant was charged with two counts of violation of regulations promulgated

under 16 U.S.C. Sec. 551. The two counts were outfitting without a permit in
violation of 36 C.F.R. Sec. 261.10(c) and giving false information to a forest
service officer in violation of 36 C.F.R. Sec. 261.3(b). Defendant pleaded guilty
to the first count and was convicted of the second in a trial before Magistrate
Jill S. Clifton. Defendant was sentenced to 15 days imprisonment on the two
counts, and fined $750. Imprisonment was suspended and defendant was given
a two-year period of probation. As a condition of probation, the magistrate
required Hussong to return to the six hunters the fees the hunters had paid to
Hussong for his services. This amounted to $650 per hunter.
Defendant appealed the award of restitution to the United States District Court
for the District of Colorado. The magistrate's ruling was affirmed by Judge Zita
Weinshienk on August 31, 1984.
Defendant renews in this court his contention that the award of restitution to the
six hunters was beyond the power of the magistrate to grant. Defendant has
cited several Colorado cases, urging us to consider them as persuasive
authority. These cases are entirely inapposite, however, because they are based
on the Colorado statute. This case must be decided on the basis of construction
of federal law.
The power of the sentencing court to impose restitution as a condition of

probation derives from 18 U.S.C. Sec. 3651, which states in pertinent part:
8While on probation and among the conditions thereof, the defendant-9* * *

10 be required to make restitution or reparation to aggrieved parties for actual
May
damages or loss caused by the offense for which conviction was had ...
11
There is no doubt that this section applies to this case, because Sec. 3651
explicitly applies to "any court having jurisdiction to try offenses against the
United States."
12
Appellant argues that the proper forum in which to adjudicate the hunters'
12
Appellant argues that the proper forum in which to adjudicate the hunters'
rights against him would be in a civil suit for damages for breach of contract.
This argument misses the point. What is in question here is not where the
hunters' rights could or should be determined, but whether or not the magistrate
could properly require Mr. Hussong to return the hunters' money to them as a
condition of probation. This question must be resolved through interpretation of
the statutory grant of authority.
13
According to the words of the statute, restitution may be awarded to "aggrieved

parties for actual damages or loss caused by the offense for which the
conviction was had." Our first task is to decide whether or not the hunters were
"aggrieved parties."
14
Appellant argues that the United States and the Forest Service were the only
"aggrieved parties" in this case. Appellant urges that the hunters were not
aggrieved because he offered them various alternatives after the Forest Service
ordered them to leave federal land. Appellant would have us hold, in effect, that
"aggrieved parties" is the equivalent of "direct victims."
15
In support of his argument, appellant cites three federal cases, United States v.
Follette, 32 F.Supp. 953 (E.D.Pa.1940), Karrell v. United States, 181 F.2d 981
(9th Cir.), cert. denied, 340 U.S. 891, 71 S.Ct. 206, 95 L.Ed. 646 (1950), and
United States v. Clovis Retail Liquor Dealers Trade Association, 540 F.2d 1389
(10th Cir.1976). In Follette, the district court had imposed restitution to a surety
as a condition of probation of a convicted embezzler in a case where the surety
had been required to make good on a bond protecting against the embezzler's
actions. Appellant would have us read Follette to limit the construction of the
words "aggrieved party" to those who are directly victimized by the crime. In
Follette itself, however, the court held the surety to be an aggrieved party and
ordered restitution, even though the surety's financial loss was based on
contractual liability, rather than victimization by the defendant. Thus, rather
than support defendant's position, the Follette case supports a construction of
the words "aggrieved party" to include all those who suffer financial loss as a
result of a defendant's crimes.
16
In the Karrell case, a defendant was convicted for knowingly causing false
claims to be filed under the Servicemen's Readjustment Act of 1944. The
indictment contained seventeen counts, but the defendant was only convicted of
six counts. The court ordered the defendant to pay restitution to all seventeen
veterans. The Ninth Circuit reversed, holding that restitution could only be
ordered to be paid to the six veterans involved in the six counts upon which
defendant was convicted.
17
Karrell is simply irrelevant. There is no question in this case that the six hunters
were financially aggrieved by defendant's actions. They had each paid
defendant $650 for a hunt on National Forest System land which they were
unable to undertake because they were ordered off the land by forest system
officers. In Karrell, the district court transgressed the clear directive of Sec.
3651 that restitution be based on "damages or loss caused by the offense for
which conviction was had ..." In the present case, there is no doubt that the
hunters' financial loss was caused by their being placed on forest service land
by the defendant when he had no permit to do so. Defendant's failure to obtain
a permit was precisely "the offense for which conviction was had." Karrell is
clearly inapposite.1
18
The Clovis case involved a conviction under the Sherman Anti-Trust Act of a
liquor retailer. As a condition of probation the district court required
"restitution" to be paid to the county council on alcoholism. This court
reversed, finding that the county council on alcoholism was not an aggrieved
party. Unlike the case at bar, in Clovis there was no connection whatsoever
between the offense for which the conviction was had and the party to whom
restitution was ordered to be paid. Clovis is thus inapposite for the same reason
that Karrell is: in the present case the hunters' loss resulted directly from the
offense for which defendant's conviction was had.
19
At oral argument appellant cited one further case in support of his argument
that the words "aggrieved party" should be narrowly construed. That case was
United States v. Prescon Corp., 695 F.2d 1236 (10th Cir.1982), where this
court stated:
20
Section
3651, in providing, as a condition of probation, restitution or reparation to
aggrieved parties for actual damages or losses caused by the offense committed,
requires that such funds be directed to the victims (i.e., "aggrieved parties") of the
criminal act.
21
695 F.2d at 1243 (citations omitted). The use of the term "victim" by the court
is clarified by the parenthetical phrase "aggrieved parties" directly following it.
The language should not be construed to narrow the class of persons to whom
the court may properly order restitution to be paid.
22
As we have stated before, a sentencing judge has broad discretion to impose

conditions of probation reasonably related to protecting the public and
rehabilitating the defendant. Prescon, supra, at 1243; United States v. Lawson,
670 F.2d 923 (10th Cir.1982). Nevertheless, this discretion does not allow the
sentencing judge to order restitution as a condition of probation beyond the
express authorizations contained in Sec. 3651. Prescon, supra; Clovis, supra. In

this case, we conclude that the magistrate properly found that the hunters were
"aggrieved parties" under Sec. 3651 and acted within her discretion in ordering
defendant to pay restitution to them. The hunters had each paid $650 to
defendant for his services. They received no benefit from their payments to him
because they were forced to leave National Forest System land. They were
forced to leave the land because defendant had failed to obtain a permit to place
them there. Defendant was convicted of outfitting without a permit for placing
those hunters on that land. Clearly, these hunters were "aggrieved parties"
whose "damages" were "caused by the offense for which conviction was had."
23
We have considered appellant's other arguments and find them to be without

merit.
24
The judgment of the United States District Court for the District of Colorado is
affirmed.
We note that both Karrell and Follette have been subject to judicial criticism.
See United States v. Harris, 761 F.2d 394, at 404 (7th Cir.1985)

United States v. Cyrus Hussong, 778 F.2d 567, 10th Cir. (1985)

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778 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Douglas W. Curless, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller,

Defendant was charged with two counts of violation of regulations promulgated

The power of the sentencing court to impose restitution as a condition of

8While on probation and among the conditions thereof, the defendant-9* * *

According to the words of the statute, restitution may be awarded to "aggrieved

As we have stated before, a sentencing judge has broad discretion to impose

express authorizations contained in Sec. 3651. Prescon, supra; Clovis, supra. In

We have considered appellant's other arguments and find them to be without

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