United States Court of Appeals For the First Circuit

No. 21-1779

UNITED STATES OF AMERICA,

Appellee,

v.

BYRON ALLAN CARDOZO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Barron, Chief Judge, Selya and Thompson, Circuit Judges.

Leslie Feldman-Rumpler for appellant. Alexandra W. Amrhein, Assistant United States Attorney, with whom Rachael S. Rollins, United States Attorney, was on brief, for appellee.

May 26, 2023 SELYA, Circuit Judge. Cyberstalking is an ugly crime,

and Congress has made it clear that an order for restitution is

one way of bringing offenders to account. This appeal concerns

the implementation of that restitution remedy. In the underlying

case, defendant-appellant Byron Allan Cardozo was convicted of

both cyberstalking and making interstate threats. See 18 U.S.C.

§§ 2261A(2)(B), 875(c). Earlier, we affirmed his sentence but

left open the issue of restitution. See United States v. Cardozo,

Nos. 20-1318, 20-1398,

, at *2 (1st Cir. Aug. 25,

2021) (per curiam). The district court then entered an amended

judgment, ordering the defendant to pay restitution to the victim

in the sum of $72,112.62.

In this court, the defendant contests the district

court's restitution order. See United States v. Cardozo, No. 18-

10251, Dkt. 88 (D. Mass. Sept. 2, 2020). After careful

consideration of a series of dystopian events and a constellation

of expenses incurred in consequence of those events, we modify the

restitution order and affirm the order as modified.

I

We briefly rehearse the relevant facts and travel of the

case. Because this appeal trails in the wake of a guilty plea,

"we glean the relevant facts from the change-of-plea colloquy, the

unchallenged portions of the presentence investigation report (PSI

- 2 - Report), and the record of the disposition hearing." United States

v. Vargas,

(1st Cir. 2009).

The defendant had a sexual encounter with Jane Doe in

2001, when he was seventeen years old and she was only thirteen.

At the time, the defendant and Doe attended the same school in

Florida.

Over the course of the next fifteen years, the defendant

periodically tried to contact Doe. In 2016, Doe responded to a

Facebook message from the defendant. She explained that she felt

traumatized by the 2001 episode and wanted to publish an essay

about it. The defendant gave Doe permission to publish such an

essay.

Doe was true to her word: she wrote the essay and

arranged for its publication in an online magazine in December of

2016. In the essay, she used pseudonyms for everyone but herself

and described the sexual encounter as coercive and traumatic.

For the next twenty months, the defendant (anonymously,

for the most part) used various online platforms to harass and

threaten Doe. He contacted Doe on hundreds of occasions, sometimes

through Facebook or Twitter and sometimes by posting comments on

her personal website. When Doe blocked him, he created false

accounts and continued to hassle her. The content of the messages

careened between claims that Doe had fabricated the coercive nature

of the encounter, graphic descriptions of real and imagined sexual

- 3 - exploits with her, professions of love, suggestions that he would

commit suicide, and express and implied threats of violent

retribution.

In March of 2017, Doe retained counsel in Florida (where

the defendant resided). Her Florida lawyers communicated with the

defendant's parole officer and sent the defendant a

cease-and-desist letter. Despite these efforts, the harassment

continued. That spring, Doe's lawyers sought and received a

temporary protection order from a Florida state court. Later on,

that court issued an injunction, barring the defendant from

communicating with Doe. The injunction proved to be of little

help: after it issued, the defendant's conduct became even more

menacing.

In 2017, Doe was living in New York. She retained New

York counsel in November of that year. Her family — concerned for

her safety — hired a Florida-based private investigator in June of

2018. The investigator was tasked with monitoring the whereabouts

of the defendant (who lived in Florida) to ensure that he did not

attempt to contact Doe in person. Unbeknownst to Doe, the

investigator tried to speak with the defendant and a physical

altercation ensued (in which the defendant was injured).

The defendant's harassment made Doe fear for her safety

and the safety of her family, friends, and colleagues. These fears

- 4 - adversely affected her mental health and impaired her ability to

work, sleep, and live normally.

By 2018, Doe had moved to Massachusetts and the

authorities were digging into her complaints about the defendant's

harassment.1 After the facts were gathered, a federal grand jury

sitting in the District of Massachusetts returned an indictment

charging the defendant with one count of cyberstalking and one

count of making interstate threats. The defendant moved to dismiss

the indictment on First Amendment grounds. The district court

denied the motion. See United States v. Cardozo, No. 18-10251,

, at *5 (D. Mass. June 24, 2019).

On August 20, 2019, the defendant entered a straight

guilty plea to both counts of the indictment. The PSI Report did

not address restitution in any meaningful detail; it merely stated

that restitution "shall be ordered" and that "[n]o restitution

claims have been made to date."

The district court convened the disposition hearing on

December 18, 2019. Doe was in attendance, accompanied by her New

York counsel, and she delivered a lengthy victim-impact statement.

The court sentenced the defendant to a seventy-month term of

immurement, to be followed by a three-year term of supervised

1 Doe moved from New York to Massachusetts at some indeterminate point during the offense conduct. It is not clear from the record exactly when the move took place.

- 5 - release. At the hearing, the government informed the district

court that it intended to seek restitution but that it was still

"working on the backup" needed to crystalize the amount. The court

accepted that representation, noting that the applicable statute

"allows for restitution to be submitted after the sentencing."

On January 14, 2020, the government filed a restitution

request for $72,350.12. This request was meant to compensate Doe

for fees that she incurred "in the course of the federal

investigation and prosecution in Boston as well as the

investigation, state court order of protection, and related

activities in Florida." In support, the government submitted

billing statements from the Florida and New York lawyers, which

included expenses for "evidence review, background review of [the

defendant], obtaining state court injunctions, cease and desist

letters, orders of protection and other relief in Florida, advocacy

with law enforcement, . . . meetings with [Doe] and prosecutors,

coordination regarding arrest of offender, support with victim

impact statement, and two federal court dates" for the disposition

hearing after defense counsel missed the first hearing due to a

scheduling error.

The defendant objected to the proposed restitution

amount, asserting that it was based on insufficient evidence; that

the defendant's conduct did not cause Doe to incur the described

expenses because hiring lawyers was elective; that the work

- 6 - performed was unnecessary, given the government's investigation;

and that the expenses were unreasonable. The district court

overruled the defendant's objections and — on September 2, 2020 —

the court ordered the defendant to pay restitution in the amount

of $72,112.62 (subtracting only $237.50 from the government's

requested amount).2 See Cardozo, No. 18-10251, Dkt. 88, at 4-5.

The defendant appealed. We affirmed his sentence but

held that the restitution order (which had not yet ripened into a

judgment) was not properly before us. See Cardozo,

, at *2. Following a remand, the district court entered an

amended judgment that encompassed the restitution order. This

timely appeal ensued.

II

On appeal, the defendant revives certain arguments

previously made and also introduces some new ones. Before arraying

those arguments, we frame the governing law and the applicable

standards of review.

2 The subtracted sum represented a charge made by Doe's New York lawyers for drafting a letter to defense counsel requesting reimbursement to Doe due to defense counsel's failure to appear at the first scheduled disposition hearing. The court explained that the "rescheduling and any expenses associated with the victim and/or her attorney's duplicative appearance in court was clearly not a loss caused by [d]efendant, but instead was caused by counsel for [d]efendant's own scheduling error." Cardozo, No. 18-10251, Dkt. 88, at 4.

- 7 - Restitution is meant to "mak[e] a victim whole by

restoring the monetary equivalent of losses suffered in

consequence of the defendant's criminal activity." United States

v. Salas-Fernández,

(1st Cir. 2010). Through

, Congress has directed district courts to order

restitution in cyberstalking cases. Section 2264 requires

restitution for the "full amount of the victim's losses."

(b)(1); see Lagos v. United States,

(2018). This anodyne includes "any costs incurred by the

victim for . . . attorneys' fees, plus any costs incurred in

obtaining a civil protection order; . . . [and] any other losses

suffered by the victim as a proximate result of the offense."

(b)(3).

A restitution order issued pursuant to section 2264 must

comport with the procedural requirements of the Mandatory Victims

Restitution Act (MVRA). See

§§ 2264(b)(2), 3664. It is the

government's burden to establish the amount of the victim's losses

by preponderant evidence. See id. § 3664(e). That burden is not

a heavy one: "[a]s long as the court's order reasonably responds

to some reliable evidence, no more is exigible." United States v.

Naphaeng,

(1st Cir. 2018) (alteration in

original) (quoting United States v. Sánchez-Maldonado,

(1st Cir. 2013)).

- 8 - When a party challenges a restitution order, preserved

claims of error are reviewed for abuse of discretion. See United

States v. Ochoa,

(1st Cir. 2023). Within that

rubric, we "examin[e] the court's subsidiary factual findings for

clear error and its answers to abstract legal questions de novo."

(alteration in original) (quoting United States v.

Chiaradio,

(1st Cir. 2012)).

Our standard of review differs, however, when a party

raises a claim of error that was not advanced below. When that

happens, appellate review is only for plain error. See United

States v. Duarte,

(1st Cir. 2001). "Under that

demanding standard, the appellant must show '(1) that an error

occurred (2) which was clear or obvious and which not only (3)

affected the defendant's substantial rights, but also (4)

seriously impaired the fairness, integrity, or public reputation

of judicial proceedings.'" United States v. Franklin,

(1st Cir. 2022) (quoting Duarte,

). "The

party asserting plain error bears the burden of persuasion" as to

all four elements. United States v. Pabon,

(1st

Cir. 2016).

With this preface in place, we turn to the defendant's

asseverational array.

- 9 - A

The defendant's first claim of error posits that the

district court failed to comply with the procedural requirements

of the MVRA. Because the defendant did not advance this claim

below, our review is for plain error. See Duarte,

.

The MVRA imposes a set of procedural requirements on the

issuance of restitution orders under section 2264. See

(b)(2), 3664. As relevant here, the district court "shall

order the probation officer to obtain and include in [the]

presentence report, or in a separate report . . . information

sufficient for the court to exercise its discretion in fashioning

a restitution order" and, "to the extent practicable, a complete

accounting of the losses" to the victim.

§ 3664(a); see Fed.

R. Crim. P. 32(c)(1)(B) (stating that, when restitution is allowed,

"[t]he probation officer must conduct an investigation and submit

a report that contains sufficient information for the court to

order restitution").

In this case, the defendant assigns error to the district

court's failure to order the probation office to prepare a

restitution report. He broadens this assignment of error by noting

that the PSI Report did not contain any substantive information

about restitution and lacked "a complete accounting of the losses."

Even if we assume, for argument's sake, that this

challenge identifies clear or obvious error — the absence of any

- 10 - concrete restitution information either in the PSI Report or in a

supplement to that report — the challenge stumbles at the third

step of the plain error construct. An error affects the

defendant's substantial rights only if there is "a reasonable

probability that, but for [the error claimed], the result of the

proceeding would have been different." United States v. Burghardt,

(1st Cir. 2019) (alteration in original) (quoting

United States v. Turbides-Leonardo,

(1st Cir.

2006)). Here, the government supplied the district court with the

detailed restitution accounting that the probation office omitted.

The defendant has failed to explain how the result would have been

different had the district court insisted that the probation office

prepare a restitution report. So, too, the defendant has failed

to explain how the result would have been different had the PSI

Report, rather than the government's proffer, contained more

fulsome information about the claimed losses. And to cinch the

matter, the record reflects that the district court placed the

devoir of persuasion squarely on the government and concluded that

the government had carried its burden based on the information

actually presented. Given this tableau, we have no reason to think

that either the information or the outcome would have changed had

the probation office followed the literal requirements of the

statute.

- 11 - To say more would be to paint the lily. We hold that

the defendant has failed to show that he was prejudiced by the

claimed procedural error. Thus, plain error is plainly absent.

B

This brings us to the defendant's suggestion that the

restitution award was not supported by reliable evidence. He says

that the evidence — billing statements from the victim's Florida

and New York attorneys — was not detailed enough, was not

sufficiently corroborated, and was untrustworthy because it was

unsworn.

In the court below, the defendant asserted that the

billing statements were inadequate to support a restitution award

because they were redacted and the redactions made it difficult to

assess whether the charges were either reasonable or causally

related to the offense conduct. But he has abandoned these

assertions on appeal, and he made no argument below as to the

reliability of the billing statements based on lack of detail,

lack of corroboration, or lack of attestation. Accordingly, our

review of the defendant's newly minted reliability claim is for

plain error. See Duarte,

.

To prevail under the plain error standard, the defendant

must identify a "clear or obvious" error.

Such an error is

an error that is "'indisputable' in light of controlling law."

United States v. Rabb,

(1st Cir. 2021) (quoting

- 12 - United States v. Jones,

(1st Cir. 2014)). In this

instance, we discern no clear error.

If a loss amount is disputed, the government must

establish the loss amount by a preponderance of the evidence. See

(e). In this regard, the district court "may

consider all relevant information that has 'sufficient indicia of

reliability to support its probable accuracy,'" including

undisputed portions of the PSI Report. United States v.

Gallardo-Ortiz,

(1st Cir. 2012) (quoting United

States v. Cintrón-Echautegui,

(1st Cir. 2010)); see

Sánchez-Maldonado,

. The court "has wide discretion

to decide whether particular evidence is sufficiently reliable to

be used at sentencing." Gallardo-Ortiz,

(quoting

Cintrón-Echautegui,

).

Here, the government submitted detailed billing

statements from Doe's Florida and New York counsel. For each

charge, the statements list the date, the hourly rate, the time

spent, and a description of the work performed. It was within the

district court's discretion to accept these precise and

well-explained billing statements as sufficiently detailed and

reliable evidence of the enumerated losses — especially since those

billing statements were coupled with the undisputed narrative in

the PSI Report, which related in some detail Doe's serial attempts

- 13 - to thwart the defendant's pattern of harassment and threats. See

Naphaeng,

.

This result is unaffected by the fact that the billing

statements are unsworn. We are aware of no authority that requires

a billing statement, prepared in the ordinary course of

professional practice, to be sworn before it can be deemed reliable

for purposes of a restitution order. Although a sworn statement

attesting to business records may be reliable and, perhaps,

preferable evidence, see, e.g., United States v. Amato,

(2d Cir. 2008), abrogated on other grounds by Lagos,

; United States v. Rochester,

(5th Cir. 1990), no case holds that verification under oath is a

sine qua non for a finding of reliability.

The cases that the defendant cites are not on point.

Each of them involved a restitution order based on skeletal,

irregular, or conclusory evidence. See, e.g., United States v.

Villalobos,

(5th Cir. 2018) (vacating order when

court imposed restitution after finding no loss); United States v.

Tsosie,

(9th Cir. 2011) (vacating order

when court provided no reasoning and only evidence was irregular

spreadsheet); United States v. Waknine,

(9th

Cir. 2008) (vacating order when supporting affidavits were "too

summary and too conclusory to be sufficiently reliable"); United

States v. Jones,

(5th Cir. 2007) (vacating

- 14 - order when court imposed restitution based solely on government

assertions). The evidence in those cases is not at all equivalent

to the detailed records that the government furnished here. Apples

must be compared to apples, and the defendant's proffered cases do

not satisfy this standard. The short of it, then, is that the

defendant has not shown that it was a clear or obvious error for

the district court to rely on the billing statements to support a

restitution order.

C

Taking a different tack, the defendant points out that

loss amounts incorporated in a restitution order must be causally

related to the offense conduct. See United States v. Yung,

(3d Cir. 2022) (citing Paroline v. United States,

(2014)). Building on this foundation, he claims

that such a causal nexus is missing here.

We have not yet had occasion to address the causation

requirement under section 2264. But the statute itself defines

the "full amount of the victim's losses" as comprising "losses

suffered by the victim as a proximate result of the offense."

(b)(3). It follows, therefore, that any loss awarded

in a restitution order issued under section 2264 must have been

proximately caused by the offense conduct. See Yung,

; United States v. Hayes,

(2d Cir. 1998);

see also United States v. Thunderhawk,

(8th Cir.

- 15 - 2017) (interpreting same language in

(b)(3)). That

conclusion accords with our case law interpreting similar language

in other restitution statutes. See, e.g., United States v.

Kearney,

(1st Cir. 2012) (collecting cases

interpreting similar language in

(c)(2)).

In practical terms, the inquiry into proximate cause

asks whether the loss "'has a sufficiently close connection to the

conduct' at issue." United States v. Chin,

(1st

Cir. 2020) (quoting Robers v. United States,

(2014)). Put another way, the question is whether the loss is

"within the reasonably foreseeable risks of harm created by the

defendant's conduct." Kearney,

(alteration omitted)

(quoting Staelens v. Dobert,

(1st Cir. 2003)).

The defendant makes two independent causation arguments, and we

address them separately.

1

The defendant first contends that his conduct did not

proximately cause Doe to incur charges by New York counsel related

to (a) the altercation between the defendant and the private

investigator hired by Doe's family, (b) a charge for a quarter

hour spent reviewing the defendant's arrest records "to give [Doe]

[a] full list for her publisher's [attorneys] (re her new book),"

and (c) charges for time spent, in the defendant's words, "serving

as an all-purpose conduit for communications between" Doe and the

- 16 - United States Attorney's Office (USAO). The defendant did not

raise any of these claims below and, thus, our review is for plain

error. See Duarte,

.

With respect to the first category of charges, the

defendant submits that charges related to the private

investigator's altercation with him were not proximately caused by

his offense conduct and that he cannot, therefore, be required to

pay restitution for any time the attorneys spent addressing them.3

Curiously, however, the defendant has not directed us to any

particular charges in this respect. Based on our independent

examination of the record, the only charges that appear to relate

to the altercation are telephone calls (which together add up to

less than one hour). In those calls, the investigator informed

counsel of the incident and counsel relayed that information to

Doe and the USAO. This jibes with the singular reference to the

subject related in the PSI Report, which tells us only that the

investigator and a colleague "attempted to speak to [the

defendant], and a physical altercation ensued." Against that

sketchy backdrop, and without any helpful guidance on which

specific charges should be excluded, we see no justification for

3 The private investigator's fees were apparently paid by Doe's family and do not account for any part of the restitution award. Consequently, those fees are not at issue here.

- 17 - concluding that the district court committed a clear or obvious

error.

We need not linger long over the charges for time spent

reviewing the defendant's arrest record for Doe's publisher's

attorneys and communicating with the USAO. Doe is an author whose

published essay was the catalyst for the offense conduct. It was

reasonably foreseeable — or at least it is not clear or obvious

that it was not reasonably foreseeable — that Doe's attorneys would

need to communicate with her publishers about the defendant. As

for communications with the USAO, it was readily foreseeable that

Doe's counsel, whom she retained before any charges were instituted

against the defendant, would interface with the USAO on her behalf

once charges were brought.

2

The defendant's remaining causation argument relates to

the two trips that Doe's New York counsel made to Boston in

connection with sentencing (after the disposition hearing was

aborted on the first trip due to a scheduling error on the part of

defense counsel). The defendant did not raise this claim below

and, thus, our review is for plain error. See Duarte,

.

Refined to bare essence, the defendant contends that it

was not reasonably foreseeable that New York counsel would make

two trips to Boston for sentencing. Reasoning from this premise,

- 18 - he objects to the inclusion of charges from the second trip on the

ground that — if both trips related solely to sentencing — the

charges from the second trip must have been duplicative of those

from the first.

The defendant buttresses this contention by noting a

perceived inconsistency in the district court's order. The court

rejected a $237.50 charge in New York counsel's billing statements

for drafting a letter to defense counsel "requesting reimbursement

to [Doe] due to [defense counsel's] failure to appear" at the first

scheduled disposition hearing. See supra note 2. The court stated

that "rescheduling and any expenses associated with the victim

and/or her attorney's duplicative appearance in court was clearly

not a loss caused by [d]efendant, but instead was caused by counsel

for [d]efendant's own scheduling error." Cardozo, No. 18-10251,

Dkt. 88, at 4. The defendant posits that the district court's

order is internally inconsistent, given that (in his view) the

court's stated reason for denying the $237.50 charge applies

equally to all other charges associated with the second trip to

Boston, inasmuch as the trip itself was duplicative.

The defendant is painting with too broad a brush. His

argument assumes that all charges from both trips related solely

to sentencing. That assumption, however, is neither clear nor

obvious from the record. There are charges from both trips that

plausibly relate to matters apart from sentencing (for instance,

- 19 - charges for time spent meeting with Doe). It is, therefore,

neither clear nor obvious that all the charges are duplicative.

The defendant has not attempted to argue, either here or

below, that the specific charges from the second trip were all

sentencing-related. Nor has he made any effort to distinguish

between charges that are duplicative and charges that are not.

Relatedly, he has made no effort to explain why the charges that

are seemingly not related to sentencing were otherwise

unforeseeable. Instead, he rests his claim of error squarely on

the unproven theory that the second trip itself is duplicative.

Given the tenor of the defendant's argument, we conclude

that he has failed to demonstrate — clearly and obviously — that

the charges from the second trip should have been excluded as

duplicative. Consequently, we discern no plain error in the

district court's inclusion of those charges in its restitution

order.

D

The defendant's fourth set of challenges concerns the

reasonableness of the restitution award. In the restitution

context, reasonableness is a protean concept. One aspect of the

question of reasonableness is typically subsumed by the question

of causation, that is, whether a loss was reasonably foreseeable.

See Kearney,

; see also United States v. Vaknin,

(1st Cir. 1997) (explaining, in restitution

- 20 - context, that "[t]he watchword is reasonableness" when assessing

"the causal nexus between the conduct and the loss"), abrogated on

other grounds by United States v. Anonymous Defendant,

(1st Cir. 2010). Another aspect of the reasonableness

inquiry, though, is born of the notion that the victim should not

be permitted to recover for excessive losses. See, e.g., In re

Akebia Therapeutics, Inc.,

(1st Cir. 2020). We

address that aspect here.

1

As a start, the defendant advances a general claim that

the attorneys' fees included in the restitution award are excessive

and, thus, unreasonable. Because this claim was raised below, our

review is for abuse of discretion. See Ochoa,

.

The defendant relies primarily on United States v.

Kukstis, No. 18-10241, Dkt. 50 (D. Mass. Dec. 19, 2018), an

unpublished decision in a cyberstalking case in which the district

court awarded attorneys' fees as part of a restitution order. The

defendant contends that a comparison between the order in this

case and the order in Kukstis demonstrates that the attorneys'

fees awarded by the court below are unreasonable.

This contention is unconvincing. No two cases are likely

to be identical, and the defendant sets up a false dichotomy: a

direct comparison of the average monthly attorneys' fees in Kukstis

and in this case in order to determine what is reasonable. But

- 21 - one size does not fit all, and the reasonableness of the fees

depends on the idiosyncratic circumstances of each case and the

actual work performed. There is no plausible basis for assuming

that there is only one reasonable amount of average monthly

attorneys' fees across the universe of cyberstalking cases. Thus,

comparing average monthly fees in two unrelated cyberstalking

cases tells us nothing about whether those fees are reasonable.

The court below determined that Doe's attorneys' fees

were reasonable because she had "received significant legal

assistance over the course of two years in connection with

[d]efendant's ongoing harassment and threats of physical

violence." Cardozo, No. 18-10251, Dkt. 88, at 5. The defendant

has not succeeded in throwing shade on the factual underpinnings

of this determination. Under these circumstances, we see nothing

to indicate that the district court abused its wide discretion in

concluding that the fees incurred by Doe were reasonable.

2

Next, the defendant claims that it was unreasonable for

Doe to retain New York counsel and for two attorneys to accompany

Doe to the district court hearings in Boston. Because the

defendant raised these claims for the first time on appeal, we

review them for plain error. See Duarte,

.

We start with the defendant's claim that it was

unreasonable for Doe to retain New York counsel even though the

- 22 - criminal proceedings were prosecuted in Boston. Doing so, he

complains, led to unnecessary travel costs.

This plaint does not move the needle. The district court

implicitly concluded that it was reasonable for Doe, who lived in

New York,4 to engage New York counsel. This conclusion is

buttressed by the fact that Doe retained her New York counsel

before criminal proceedings were instituted in Boston. All things

considered, we see no clear or obvious error in the district

court's conclusions.

Given our holding that it was reasonable for Doe to

engage New York counsel, we think it follows that travel to Boston,

when necessary, was part and parcel of that engagement. The

defendant has offered no evidence to show that either the time

allotted for travel or the costs incident thereto were out of line.

We add, moreover, that none of the cases that the

defendant cites undermines the district court's ruling that it was

reasonable for Doe to recover for travel by her New York counsel.

Those cases relate to when recovery for attorneys' fees should be

capped at the average local hourly rate rather than a higher

non-local rate. See Arbor Hill Concerned Citizens Neighborhood

Ass'n v. Cnty. of Albany & Albany Cnty. Bd. of Elections, 522 F.3d

4As we have said, see supra note 1, it is not clear from the record when Doe moved to Massachusetts. But it seems likely that she retained her New York counsel at a time when she lived in New York.

- 23 - 182, 183-84, 191 (2d Cir. 2008) (concluding, in Voting Rights Act

context, that recovery for fees for out-of-district attorneys who

charged higher hourly rates than local counsel would be allowed so

long as retention of out-of-district attorneys was "reasonable

under the circumstances"); Maceira v. Pagan,

(1st

Cir. 1983) (explaining, in context of Landrum-Griffin Act, that

recovery for fees of out-of-town attorneys who charge higher rates

may be reasonable if those attorneys have special expertise). The

defendant has not offered any comparative evidence of average

hourly rates in Boston and New York. Nor has the defendant offered

any evidence that the attorneys' travel costs were exaggerated or

inappropriate. The district court's recognition of those costs

was, therefore, not clearly or obviously erroneous.

As for the claim that it was plain error to allow

recovery for two attorneys, we likewise discern no clear or obvious

error. In modern litigation, it is not unusual — and certainly

not per se unreasonable — for more than one attorney to participate

in the representation of a client at a particular hearing or in a

particular proceeding. See, e.g., Castañeda-Castillo v. Holder,

(1st Cir. 2013); O'Rourke v. City of Providence,

(1st Cir. 2001).

The lone case that the defendant cites, Copeland v.

Marshall, states that having more than one attorney present at a

proceeding will sometimes render recovery for both attorneys' fees

- 24 - duplicative. See

(D.C. Cir. 1980) (en banc).

But it tells us nothing about whether having two attorneys

accompany Doe in this case was duplicative or unreasonable. On

this sparse record, we cannot find clear or obvious error in the

district court's allowance of recovery for two attorneys to

accompany Doe to Boston for proceedings in the criminal case.

3

The defendant also challenges the reasonableness of the

amounts billed by Doe's Florida counsel. This claim surfaced for

the first time on appeal and, thus, our review is for plain error.

See Duarte,

.

When Doe retained her Florida counsel, the defendant

resided in Florida. It was, therefore, reasonable for her to

engage Florida lawyers to seek an order of protection from a

Florida court. See Maceira,

.

The defendant strives to blunt the force of this

reasoning. He says that he resided in Jacksonville and that the

protection-order proceedings took place there, yet Doe selected

counsel who maintained offices in Orlando. The defendant's

argument seems to be, at bottom, that it was unreasonable to hire

counsel who were located in a different part of Florida because

doing so necessarily required extra travel costs. According to

the defendant, it is only reasonable to hire out-of-town lawyers

if they are specialists. Doe's Florida counsel, the defendant

- 25 - adds, are clearly not specialists because their charges include

research costs related to obtaining a protection order.

At first blush, this claim seems dubious. The choice of

counsel is an intensely personal choice, and courts should afford

wide latitude to parties with respect to such choices. Cf. United

States v. Panzardi Alvarez,

(1st Cir. 1987)

(explaining that, in criminal context, deference to choice of

counsel guarantees "basic trust between counsel and client, which

is a cornerstone of the adversary system" (quoting Wilson v.

Mintzes,

(6th Cir. 1985))). We are aware of no

rule that requires a plaintiff — on pain of forfeiting eligibility

for restitution — to choose counsel who practices in the same city

or town in which the offending party resides.5

In arguing for a closer geographic fit, the defendant

relies on the decision in Arbor Hill. See

. Arbor

Hill is a case under the Voting Rights Act, in which the court

concluded that recovery for higher rates charged by out-of-

district attorneys would be allowed if the decision to retain them

was "reasonable under the circumstances."

. But Arbor

Hill is of scant relevance here: the defendant makes no attempt

to extend its reasoning to this case.

5 Of course, choosing counsel from outside the jurisdiction may present a more nuanced problem. This claim of error, though, does not require us to delve into those considerations.

- 26 - Little more need be said. Doe sought the assistance of

Florida counsel to obtain a protection order from a Florida court

against the defendant (who resided in Florida). The defendant has

offered no evidence to show that the rates prevailing in the

community in which counsel was based (Orlando) were different in

any material respect from the rates prevailing in the community

where the protection order was issued (Jacksonville). Nor has he

provided any authority rendering it "indisputable," Jones,

, that compensation for travel by a non-specialist

attorney is per se unreasonable or (more to the point) unreasonable

under the circumstances at hand. The district court determined

(at least implicitly) that the challenged fees were reasonable,

and the defendant has given us no clear or obvious reason to set

aside that determination.

E

The defendant's last argument concerns a discrepancy of

$4,308.93 between the total amount of charges reflected on the

billing statements and the restitution award. The defendant did

not mention this discrepancy below and, thus, our review is for

plain error. See Duarte,

.

The relevant facts are not in dispute. The government

requested $72,350.12 in restitution. It sought $12,146.06 for

payments made to Florida counsel and $60,204.06 for payments made

to New York counsel. The billing statements that the government

- 27 - provided from New York counsel, though, added up to only $55,895.13

— an amount that was $4,308.93 less than what the government

sought. The district court gave the government most of what it

had requested, ordering restitution in the amount of $72,112.62

(subtracting only $237.50). See supra note 2.

The government now concedes that there is a discrepancy

between the total of the charges reflected on the billing

statements and the total restitution awarded. It nonetheless

argues that it was not plain error for the district court to impose

a restitution award that was "slightly higher" than the amount

supported by the evidence. In the government's view, the court

was entitled to rely on the total figure requested, notwithstanding

the lack of backup. We think not.

The disputed amount — $4,308.93 — was not supported by

anything in the record but, rather, was plucked out of thin air.

Each component of a restitution order must correspond to some

reliable evidence; such components cannot rest on an "evidentiary

void." United States v. De Jesús-Torres,

(1st

Cir. 2023). The inclusion of the disputed amount in the

restitution order was, therefore, clear and obvious error: it is

a clear and obvious error for a court to conclude that billing

statements totaling $55,895.13 support an award of $60,204.06.

The logical conclusion, then, is that the total loss amount that

- 28 - the government asserted was premised on an incorrect accounting of

the evidence.

Here, moreover, the third and fourth elements of the

plain error construct are also satisfied. With respect to the

third element — prejudice — we decline the government's invitation

to find that such a discrepancy changed the outcome only

"slightly." After all, the glaring error added over $4,000 to the

defendant's restitution obligation and, thus, affected the

defendant's substantial rights.

Finally, the fourth element is satisfied. We think that

the fairness, integrity, and public reputation of judicial

proceedings are impaired when the court imposes thousands of

dollars of restitution based on no evidence at all. Although we

do not "hold a sentencing court to a standard of 'absolute

precision' when fashioning restitution orders," Simon, 12 F.4th at

64 (quoting Naphaeng,

), a restitution award must

"reasonably respond[] to some reliable evidence,"

at 64-65

(quoting Sánchez-Maldonado,

). See De Jesús-Torres,

.

In this case, the evidence supported a total of

$68,041.19 in restitution, not the $72,350.12 that the government

sought. Consequently, we direct that the restitution amount be

reduced by subtracting $4,308.93, resulting in a modified award of

$67,803.69.

- 29 - III

We need go no further. For the reasons elucidated above,

we direct modification of the restitution order as specified herein

and affirm the modified restitution order.

So Ordered.

- 30 -