Friday, October 17, 2014

Helpful Opinion on Modifying Restitution Orders

U.S. v. Grigsby, 2014 WL 5072589 (10/10/14) (Kan.) (unpub'd) - A partial victory for a defendant acting for the victim. Contrary to the district court's belief, it had the authority to modify its restitution order to change the recipient for the benefit of the minor whom Mr. Grigsby had sexually exploited for child porn purposes. The authority arises from 18 U.S.C. ยง 3664(k) & 3572(d)(3), which allow modification when financial circumstances change. Mr. Grigsby alleged the child's mother, who received the restitution payments for the child, was neglecting the child to the point where the state had taken custody. He proposed setting up a trust fund. The 10th Circuit's reasoning might be helpful in case a defendant wants other changes in a restitution payment schedule. The 10th just said: "We can find nothing in the restitution-payment statutes which limits the district court from modifying a restitution order" for the purposes Mr. Grigsby sought. Ordinarily the 10th might want a specific authorization, but obviously the 10th wanted to do what Mr. Grigsby asked it to do.

The district court also had authority to modify restitution payments in light of Mr. Grigsby's ongoing divorce proceedings, which might change his financial situation. On the other hand, he couldn't get his supervised release conditions modified. He hadn't appealed them and, besides, his request was a bit premature: he hadn't yet finished his 260-year sentence, which he started in 2013. Nor could Mr. Grigsby change the original restitution amount. He should have appealed that. And he lost his chance to get non-porn photos from his forfeited computer. He was given one chance and gave the photos to his wife. He'll have to fight about that in the divorce proceedings.