                                                                             FILED
                            NOT FOR PUBLICATION
                                                                              JUL 12 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.    16-30141

              Plaintiff-Appellee,                D.C. No.
                                                 2:09-cr-00160-JLR-3
 v.

WILLIAM S. POFF,                                 MEMORANDUM*

              Defendant-Appellant.


                 On Remand from the United States Supreme Court

Before: GOULD, PAEZ, and CHRISTEN, Circuit Judges.

      William S. Poff appeals from an order directing the Bureau of Prisons to

turn over the funds in his inmate trust account to the Clerk of the United States

District Court for the Western District of Washington for payment of his court-

ordered restitution. On March 7, 2018, we issued a memorandum disposition

affirming the district court’s order. United States v. Poff, 727 F. App’x 249 (9th

Cir. 2018). In January 2019, the Supreme Court vacated the judgment and

remanded the case “for further consideration in light of” its recent decision in


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Lagos v. United States, 584 U.S. ____, 138 S. Ct. 1684 (2018). See Poff v. United

States, 139 S. Ct. 790 (mem.) (2019).

      We have considered the Supreme Court’s decision in Lagos and are

unpersuaded that it changes the analysis in the present case. Lagos considered and

interpreted the statutory language in 18 U.S.C. § 3663A(b)(4) of the Mandatory

Victims Restitution Act (MVRA), a different provision than the one at issue here.

138 S. Ct. at 1687. Section 3663A(b)(4) considers the type of losses a crime

victim may recover through restitution. Id. at 1688 (holding that “expenses

incurred during participation in the investigation or prosecution of the offense or

attendance at proceedings related to the offense” is limited to government

investigations and criminal proceedings (emphasis omitted) (quoting

§ 3663A(b)(4))). Here, by contrast, we consider the sources from which a crime

victim may recover court-ordered restitution. Lagos also declined to adopt a broad

reading of § 3663A(b)(4) based, in part, on the administrative burdens inherent in

inviting courts to determine which of a victim’s expenses were necessarily incurred

or which proceedings were sufficiently “related to the offense” to be eligible for

restitution. Id. at 1689. None of those concerns are present here.

      Lagos reiterated the MVRA’s “broad purpose . . . ‘to ensure that victims of a

crime receive full restitution,’” 138 S. Ct. at 1689 (quoting Dolan v. United States,


                                          2
560 U.S. 605, 612 (2010)), merely adding the admonition that “a broad general

purpose of this kind does not always require us to interpret a restitution statute in a

way that favors an award,” id. (emphasis added). Poff does not challenge the

restitution award; he argues that he cannot be compelled to turn over his disability-

benefits payments to satisfy that award.

      Section 3664(n) of the MVRA requires a person who “receives substantial

resources from any source, including inheritance, settlement, or other judgment,

during a period of incarceration . . . to apply the value of such resources to any

restitution or fine still owed.” 18 U.S.C. § 3664(n) (emphasis added). Poff

contends that the district court erred by allowing the government to seize funds

from his inmate trust account because his veterans disability payments were not

within the scope of § 3664(n).

      We are persuaded by the Fifth Circuit’s analysis in United States v. Hughes

that § 3664(n) “refers to windfalls or sudden financial injections . . . that become

‘suddenly available’” to the defendant. 914 F.3d 947, 951 (5th Cir. 2019) (citation

omitted). As the Fifth Circuit noted, the examples in § 3664(n)—“inheritance,

settlement, or other judgment”—share a similar quality. Id. Applying the noscitur

a sociis canon, these words should be given the “meaning that makes them




                                           3
similar.”1 Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 195 (2012). The three statutory examples share the relevant

characteristic of a one-time, lump-sum payment—a category that would not

include, for example, periodically paid prison wages. Hughes, 914 F.3d at 951.

Read in conjunction with the surplusage canon, which cautions against “an

interpretation that renders [a provision] pointless,” Scalia & Garner, at 176, we are

satisfied that Congress would not have included those three examples if it intended

§ 3664(n) to apply more broadly.

      The district court granted the government’s turnover motion for the full

amount in Poff’s inmate trust account: $2,663.05. But the record is unclear about

the source of the funds seized from Poff’s inmate trust account. It is unclear

whether all of the funds were service-related disability payments from the

Department of Veterans Affairs, and some of the funds may have been Poff’s

prison wages.




      1
         Poff urges the application of ejusdem generis. We decline to apply that
canon. “In all contexts other than the pattern of specific-to-general, the proper rule
is to invoke the broad associated-words canon, not the narrow ejusdem generis
canon.” Scalia & Garner, at 205. Here, the language we interpret proceeds from
the general to the specific: “resources from any source, including inheritance,
settlement, or other judgment.” 18 U.S.C. § 3664(n).
                                           4
      To the extent any of Poff’s $2,663.05 account balance is comprised of

accumulated prison wages, we agree with the Fifth Circuit that those funds do not

qualify under § 3664(n). See Hughes, 914 F.3d at 951.2 To the extent the account

balance is comprised of disability benefits payments, those payments were not

disclosed to the district court when Poff’s payment schedule was established,

despite several requests to Poff for information about his ability to pay restitution.

      We leave it to the district court on remand to determine the exact

composition of the account balance and to determine if the government’s turnover

motion is properly considered pursuant to § 3664(n) or if the disability benefits

payments constitute a “material change in the defendant’s economic

circumstances,” better addressed pursuant to § 3664(k), which provides a

mechanism for the court to “adjust the [restitution] payment schedule, or require

immediate payment in full, as the interests of justice require.” 18 U.S.C.

§ 3664(k); see also United States v. Holden, 908 F.3d 395, 405 (9th Cir. 2018).3


      2
        Notably, in Hughes, unlike here, the district court ordered immediate
turnover of all funds “with a $200 carve out for Hughes’s telephone and
commissary needs.” 914 F.3d at 949. By contrast, the district court in this case
ordered immediate turnover of the full balance in Poff’s account, leaving him with
a $0.00 balance.
      3
        We do not read Holden to have decided that § 3664(n) applies only to
“unexpected windfalls,” but merely to note, in dicta, that the language from the
provision allows for recovery of windfalls that a defendant may receive.
                                           5
VACATED AND REMANDED.




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