FILED

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA  2 3 2013
Cl k, U. . `
Go:rrts fo?thgi§tf:(t:rtig §§
UNITED STATES OF AMERICA
v. Criminal Action No. 12-150 (JEB)
KEVIN HUSSAIN HOMAUNE,
Defendant.

MEMORANDUM OPINION & RESTITUTION ORDER

Defendant Kevin Homaune pled guilty to and has been sentenced for attempted
international parental kidnapping. The Govemment now seeks restitution for the child’s mother,
Jodi Reed, who left a well-paying job and shelled out hefty legal fees in her two-year quest to
recover her daughter from Defendant in Iran. The Court will award most of the requested
restitution.
I. Background

A previous opinion lays out the facts of this case. § United States v. Homaune, Crim.
No. l2-l50, 2012 WL 4858987 (D.D.C. Oct. 15, 20l2). In brief, Homaune and Reed, who were
estranged but not divorced, agreed that he would take their daughter M.H. to Iran for six weeks
in the summer of 2009, then bring her back to Reed in the United States. At the end of six
weeks, however, Homaune refused to return, ultimately living with M.H. in Iran for two more
years. Mother and daughter finally reunited in Turkey in August 2011.

The Govemment charged Homaune with one count of international parental kidnapping.
Soon after this Court denied Homaune’s motions to dismiss, ge i;d_., he pled guilty on October
25, 2012, to one count of attempted international parental kidnapping under 18 U.S.C. § l204.

As contemplated by his plea under Federal Rule of Criminal Procedure ll(c)(l)(C), the Court

1

sentenced Homaune that same day to time served, which amounted to a bit over five months in
custody from the time of his arrest in Germany and subsequent extradition. In the plea
agreement, Homaune also agreed "to pay restitution to Jodi Reed in an amount to be determined
by the Court" under 18 U.S.C. § 3663. §§ Plea Agreement Letter at 5. During the plea hearing,
Homaune agreed to separate his sentencing hearing from his restitution hearing and waived his
right to be present at the latter in order to expedite his removal to Canada and release from
incarceration. §§ 18 U.S.C. § 3664(d)(5) (“If the victim’s losses are not ascertainable by the
date that is 10 days prior to sentencing, the attomey for the Govemment or the probation officer
shall so inform the court, and the court shall set a date for the final determination of the victim’s
losses, not to exceed 90 days after sentencing."). After accommodating the parties’ requests for
continuances, the Court held a restitution hearing on january 22, 2013, during which Reed
testified via telephone.
II. Analysis

Under 18 U.S.C. § 3663(a)(1)(A), a court "may order" that a defendant convicted under
Title 18 "make restitution to any victim of [his] offense." A "victim" is "a person directly and
proximately harmed as a result of the commission of an offense for which restitution may be
ordered." 18 U.S.C. § 3663(a)(2). "[I]f agreed to by the parties in a plea agreement," the court
may also order "restitution to persons other than the victim of the offense." 18 U.S.C.
§ 3663(a)(l )(A). In all cases, the restitution order may require the defendant to "reimburse the
victim for lost income and necessary child care, transportation, and other expenses related to
participation in the investigation or prosecution of the offense or attendance at proceedings
related to the offense." 18 U.S.C. § 3663(b)(4). Under 18 U.S.C. § 3664(€), the court resolves

disputes about restitution "by the preponderance of the evidence," assigning the Govemment the

burden of proving the victims’ losses resulting from the offense and the defendant the burden of
proving his financial resources and needs. "In each order of restitution, the court shall order
restitution to each victim in the full amount of each victim’s losses as determined by the court
and without consideration of the economic circumstances of the defendant." 18 U.S.C.

§ 3664(f)(1)(A). The court must also order a payment schedule that considers the defendant’s
economic circumstances. § 18 U.S.C. § 3664(f)(2).

As Reed is a victim of the offense and as Homaune agreed in his plea agreement to pay
her restitution, restitution to Reed is proper here. Defendant, furthermore, has not argued that he
should be excused from restitution based on his financial circumstances. §_e_e 18 U.S.C.

§ 3663(a)(l)(B). The Government here seeks four categories of restitution for Reed: attomey
fees for custody and divorce proceedings, lost wages, attomey fees for a Turkish lawyer, and
miscellaneous expenses. The Court will consider each separately.

First, Reed paid a Virginia attomey for representation in a combined custody and divorce
proceeding while M.H. was in Iran. ln another lntemational Parental Kidnapping Crime Act
case, the Ninth Circuit upheld restitution for attorney fees paid by a parent seeking custody. §
United States v. Cummings, 281 F.3d 1046, 1052 (9th Cir. 2002) ("[The mother’s] attomey’s
fees, which were incurred in an attempt to regain custody of her children, were a direct and
foreseeable result of Cummings’s improper removal and retention of them. There would have
been no need to engage in civil proceedings to recover the children if Cummings had not
unlawfully taken them to Germany."). Homaune, in fact, allows that the expenses for the
custodial order are proper under § 3663 and contests only the expenses incurred for the divorce.
§ Def. Reply at 1-2. While the custody and divorce costs are not separated on the attorney’s

invoice, § Gov’t Mot., Exh. 1, the Govemment explains that "it was a joint proceeding and the

same complaint was used to support both the custody and divorce orders and, indeed, [Reed’s]
attomeys told her that she could not obtain full custody of M.H. in Virginia without first being
divorced from the defendant." Gov’t Mot. at 4. Homaune has pointed to nothing that would
undermine this assertion that, in Virginia, custody and divorce are linked. As attomey fees for
the combined proceeding were thus the direct and proximate result of Homaune’s attempted
intemational parental kidnapping, the Court will order the full restitution sought, $6698.63.

Second, Reed took lower-paying jobs while M.H. was missing. As Reed explained in her
testimony at the restitution hearing, when Homaune took their daughter to Iran, she was working
as a sales manager for six radio stations, supervising nine to twelve salespeople. When Reed
learned in early July 2009 that Homaune and M.H. would not retum, however, she asked the
radio stations for a demotion to a regular salesperson who would work on commission. She
convincingly testified that she had to leave her supervisory job because she needed more
flexibility in her schedule so that she could meet with a long list of government agents (from the
Iranian Embassy to the Department of State to local law enforcement to the FBI) in an effort to
get her child back. She also spent time, for example, leaming Farsi to aid her effort to recover
her daughter. The Court credits Reed’s reasonable explanation for leaving her job and finds that
with the new demands on her time - directly and proximately caused by Homaune’s offense -
she would have been unable to satisfactorily discharge her job as a sales manager.

Reed lasted only six weeks as a salesperson for the radio stations before she was
terminated for being unable to keep up with even that lesser job’s responsibilities. After that, she
worked for 12 weeks doing bathroom renovation for friends of a friend. Then, in 2010 and the
majority of 201 1, she bounced between salesperson jobs, always eaming commission instead of

a salary. She explained that her work in 2011 became especially sidetracked by Homaune’s

repeated (and then repeatedly withdrawn) offers to let Reed see M.H. if she traveled to ever-
changing foreign locations. After Homaune finally left such an offer in place, Reed reunited
with M.H. in Turkey in August 2011. After August201l, she left the workforce until November
201 l, when she began a job that paid $250 per week for the rest of the year.

As evidence of her eamings in 2008, 2009, 2010, and 2011, the Govemment submits
Reed’s H&R Block income-tax summaries for those years. The Court agrees with Homaune that
W-2s would have been preferable, but given Reed’s testimony that these summaries are accurate
and were in fact filed along with her tax retums, they are sufficient. The H&R Block summaries
show Reed’s earnings as follows: in 2008, $81,769; in 2009, $58,398; in 2010, $37,386; and in
201l, $14,074. §e§ Gov’t Mot., Exh. 3. Reed testified that those figures reflect all of her
earnings from 2008 to 2011 except for her cash earnings from bathroom renovation, which she
could not estimate. To be safe, the Court will estimate such cash eamings to be $10,000,
although this is probably far higher than the actual sum.

All told, then, Reed was unable to work as a sales manager as a direct and proximate
result of Homaune’s offense from early July 2009 to early August 2011. As a sales manager, she
had made $81,769 per year - $6814.08 per month ~ in 2008. Reed never testified that she would
have earned a raise or promotion in 2009-201l, so the Court assumes that her 2008 salary would
have continued unchanged. Taking that salary as the baseline, Reed would have eamed
$170,352.08 ($6814.08 per month >< 25 months) as a sales manager during the period that
Homaune had kidnapped M.H. Instead, Reed earned $27,513.50 ($58,398 reported in 2009 +
$10,000 unreported cash ~ ($6814.08 >< 6 months as radio manager)) in the second half of 2009;

$37,386 in 2010; and $12,074 ($14,074 reported in 2011 ~ ($250 >< 8 weeks in November and

December)) in 2011 before M.H. was recovered So Reed eamed $76,973.50 in those 25 months
instead of $170,352.08, meaning she lost $93,378.58 in wages because of Homaune’s offense.

In his brief, Homaune asserts that Reed actually left her job as a sales manager because of
health problems. During the hearing, however, Reed explained that while she underwent
chemotherapy from November 2008 to May 2009 ~ that is, before M.H. left - she worked
normal hours during that period and then had only minor treatments while M.H. was gone. Reed
further testified that her health never would have prevented her from working as a sales manager
(as evidenced by the fact that she worked normal hours during her more serious chemotherapy)
and that the sole impediments to her work in this period were her attempts to get M.H. back. The
Court credits her testimony and will thus order $93,378.58 in restitution for lost wages.

Third, Reed incurred substantial legal expenses in Turl<ey, where she was finally reunited
with her daughter. Homaune agrees that the restitution order should award Reed some amount,
but questions the sum claimed The Turkish lawyer’s one-line invoice charges $18,000 (labeled
an "advance payment") in addition to a $1300 retainer he already collected §§ Gov’t Mot.,
Exh. 4. Homaune argues that the fee requested and the one-line invoice are "completely
unreasonable." Def. Reply at 5. Homaune has cited no case suggesting that § 3663 limits
restitution to reasonable losses that directly and proximately result from a defendant’s offense,
and the Court sees no statutory hook for such a requirement. But, as explained below, the Court
finds that the charges here were reasonable, so the question of whether a victim’s losses must be
reasonable can be left for another day.

In any event, the parties agreed during the hearing that this is a preeminent Turkish
family-law lawyer. Reed testified that this lawyer worked on her case for two weeks

(presumably beginning before Homaune arrived) and in the process was forced to cut his

intemational vacation short. As evidence of the lawyer’s skill, Reed testified that this lawyer
was able to get M.H. into Reed’s legal custody and out of Turkey five days after M.H. arrived in
the country with Homaune, even though in Turkey that process that can sometimes drag on for
months. Crediting Reed’s testimony, the Court finds the charges reasonable - prominent
American lawyers would charge many times more for two weeks’ work. Reed, indeed, testified
that the lawyer initially charged her $145,000, and it is unclear whether the $18,000 invoice is a
discount or simply a first installment on that larger sum. (The Govemment sought restitution
only for the $18,000 invoice and the $1300 already paid.) The Court will order $19,300 in
restitution for legal expenses in Turkey.

Finally, Reed incurred $130 in miscellaneous expenses - $25 for a copy of M.H.’s birth
certificate and $105 for a passport issued to M.H. in Turkey. § Gov’t Mot., Exhs. 6 & 7.
Homaune agrees to pay $130 in restitution for these expenses § Def. Reply at 5.

ln total, that makes $119,507.21 in restitution, The parties have made no proposal as to
how Homaune should pay this amount. C_f. 18 U.S.C. § 3664(f)(2) (court should determine
schedule of payment according to defendant’s current and projected financial circumstances). lf
unhappy with the schedule the Court imposes here, the parties may move to modify it, seeking
first to reach a mutual agreement as to the proper schedule before filing a motion with the Court.
III. Conclusion

For the reasons set forth above, the Court therefore ORDERS that:

1. Restitution in favor of Jodi Reed in the amount of $119,507.21 is imposed on

Defendant Homaune;

2. Defendant Homaune shall pay such restitution at a rate of no less than $500 each
month, beginning l\/Iarch l, 2013, and continuing on the first day of each succeeding
month until the $119,507.21 is fully paid;

3. Defendant Homaune shall make his monthly checks out to the Clerk of the Court for
the U.S. District Court for the District of Columbia, shall include his case number on
each check (i.e., Crim. No. 12-150), and shall send the checks to the Clerk of the
Court for the U.S. District Court for the District of Columbia, 333 Constitution Ave.
NW, Washington, DC 20001;

4. Until the obligation is paid in full, Defendant Homaune shall notify the Clerk of the
Court and the U.S. Attomey’s Office for the District of Columbia of any change of
address within 30 days of such change;

5. Defendant Homaune shall notify the Clerk of the Court and the U.S. Attomey’s
Office of any material change in his economic circumstances that might affect his
ability to pay restitution;

6. All other terms and conditions previously set forth at the sentencing hearing shall
remain the same; and

7. An Amended Order of Judgment shall be entered in this case, reflecting restitution in
the amount of$l19,507.21.

SO ORDERED.

/s/ James E. Boasberg
JAMES E. BOASBERG

United States District Judge

Date: January 23, 2013

