                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 06 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 09-30214

              Plaintiff - Appellee,              D.C. No. 3:07-cr-05642-RBL

  v.
                                                 MEMORANDUM*
FLOYD D. STUTESMAN,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-30215

              Plaintiff - Appellee,              D.C. No. 3:07-cr-05642-RBL

  v.

CRAIG A. JAMES,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 09-30218

              Plaintiff - Appellee,              D.C. No. 3:07-cr-05642-RBL-2

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 BRUCE L. BROWN,

              Defendant - Appellant.


                   Appeals from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                        Argued and Submitted July 12, 2010
                               Seattle, Washington

Before: REINHARDT, GRABER and PAEZ, Circuit Judges.

       Defendants Floyd Stutesman, Craig James and Bruce Brown conspired to

steal timber resources belonging to the United States, and between them felled

thirteen old-growth western red cedar trees in a protected area of the Olympia

National Forest. The district court found defendants jointly and severally liable to

the United States Forest Service for restitution in the amount of $336,466.33. All

three defendants appeal the amount of the award, and defendant Stutesman appeals

the imposition of joint and several liability. We have jurisdiction and we affirm

the amount of the award but vacate and remand with regard to joint and several

liability.

       Defendants contend that the district court abused its discretion by imposing

an arbitrary amount of restitution on insufficient evidence and that the amount

ordered constituted both punitive and consequential damages. The government

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carried its burden of production under the Mandatory Victims Restitution Act of

1996 (“MVRA”) by proving that defendants were responsible for the felling of the

thirteen old-growth cedars and by providing two methodologies for valuing those

felled trees, the valuation of which was complicated by the age and rarity of the

trees and the fact that such trees are not available for sale. See 18 U.S.C. §

3664(e). Having received the estimates generated by the two valuation

methodologies and the testimony of four expert witnesses as to the advantages and

disadvantages of those and other methodologies for valuing such old and rare trees,

the district court did not abuse its discretion by selecting as the restitution award a

reasonable figure that lay between the two estimates. See United States v. Gordon,

393 F.3d 1044, 1053 (9th Cir. 2004). Additionally, the restitution ordered did not

include consequential or punitive damages; rather, it represented the district court’s

valuation of the direct and immediate loss to the public caused by defendants’ acts,

including the loss of the ecological and aesthetic value of the felled trees.

      We vacate in part and remand, however, with regard to joint and several

liability. The MVRA provides that, “[i]f the court finds that more than [one]

defendant has contributed to the loss of a victim, the court may make each

defendant liable for payment of the full amount of restitution or may apportion

liability among the defendants to reflect the level of contribution to the victim’s


                                           3
loss and economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Here,

the government agrees that Stutesman withdrew from his conspiracy with James in

December 2005 and that at the time that he withdrew, only one of the thirteen old-

growth cedars had been cut down. Brown did not begin conspiring with James

until January 2006. “A single conspiracy can only be demonstrated by proof that

an overall agreement existed among the conspirators,” and evidence that “each

defendant knew, or had reason to know, that his benefits were probably dependent

upon the success of the entire operation.” United States v. Duran, 189 F.3d 1071,

1080 (9th Cir. 1999) (internal quotation marks and alteration omitted).

Accordingly, Stutesman, who never conspired with Brown, cannot be considered

part of a single, continuous conspiracy to steal timber, the result of which was the

destruction of thirteen old-growth cedars.

      Nevertheless, the government contends that joint and several liability is

appropriate because Stutesman “contributed” to the loss of the twelve old-growth

trees felled by James and Brown by assisting James in clearing the theft site in a

manner that facilitated the subsequent thefts by James and Brown, and because

Stutesman’s contact with the 208 Mill in December 2005 in some unspecified way

facilitated access to local sawmills for James and Brown in January and February

2006. An individual “contributes” to a loss, such that a restitution award against


                                          4
him is appropriate under the MVRA, only if that loss “directly result[s]” from his

actions. See United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 928 (9th Cir.

2001). A “[d]efendant's conduct need not be the sole cause of the loss, but any

subsequent action that contributes to the loss, such as an intervening cause, must be

directly related to the defendant's conduct”; for instance, by working in concert

with defendant’s conduct to make that conduct profitable. Id.

      The government does not explain how Stutesman’s conduct in December

2005 “directly result[ed]” in the loss of the twelve old-growth cedars felled by

Brown and James as part of their later conspiracy, and nothing in the record before

us, including the plea agreement and the presentence report, on which the

government relies, supports such a conclusion. With respect to the contention that

Stutesman helped to clear the theft site, the photographs submitted with Dr.

Penman’s report show that there were multiple theft sites and multiple spur roads

created to access those sites, but there is nothing in the record that shows which, if

any, roads or sites Stutesman participated in clearing, nor the role played by such

sites and roads in the loss of the twelve old-growth cedars felled by Brown and

James. In terms of the contention that Stutesman’s contact with the 208 sawmill

facilitated James and Brown’s later contact with local sawmills, Stutesman’s plea

agreement, on which the government relies for support of this contention, does not


                                          5
suggest how Stutesman’s December contact with one mill would have aided James

and Brown a month or more later as they sold timber to multiple mills. Thus the

government has not shown even an attenuated causation between Stutesman’s 2005

conduct and James and Brown’s felling of twelve old-growth cedars in 2006, much

less that the felling of those trees was a “direct[] result[]” of and “directly related”

to Stutesman’s 2005 conduct.

      Because the record does not support the inference that Stutesman

“contributed” to the loss of the twelve old-growth cedars felled by James and

Brown, we vacate and remand the district court’s decision that restitution for the

loss of all thirteen old-growth cedars be joint and several. We remand on an open

record. See United States v. Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en

banc). Following any further hearing the district court may hold, it shall apportion

to Stutesman liability commensurate with his contribution to the government’s

loss, based on the present record and such further evidence as may be adduced.



      AFFIRMED in part, VACATED in part and REMANDED in part.




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