United States of America v. Chase Zerba

St. Louis, MO - Criminal defense lawyer represented defendant with conspiring to distribute marijuana, as well aspossessing a weapon in furtherance of a drug trafficking crime charge.

On February 1, 2017, Beener contacted Zerba to purchase a half-pound of

marijuana for $1,500, which was a much larger quantity than Beener had previously

purchased from Zerba. Zerba was worried that the deal was a set-up for Beener to rob

him so he invited Tyler Clemens and Cameron Klouda to accompany him to the deal

for added security. Clemens came armed with a shotgun with Zerba's knowledge.

Zerba's suspicions were correct: Plotz had arranged for Beener to contact Zerba as

a pretext for robbery. The robbery went awry and in the process Clemens shot and

killed Plotz.

Zerba pled guilty to conspiring to distribute marijuana and to possessing a

weapon in furtherance of a drug trafficking crime pursuant to a written plea

agreement. This case turns on a provision in the plea agreement, which states:

Defendant agrees defendant will be required to pay full restitution to all

victims of the offense(s) including relevant conduct victims. Defendant

further understands the amount of loss sustained by each victim will be

determined during the course of preparation of the presentence

investigation report.

The presentence investigation report recommended that the district court order

Zerba to pay Plotz's parents $5,611.55 in restitution for Plotz's funeral expenses.

1The Honorable C.J. Williams, United States District Judge for the Northern

District of Iowa.

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While Zerba objected to the recommendation and contested its application at the

sentencing hearing, the court awarded restitution to Plotz's parents. Zerba appeals,

asserting the restitution order is improper for two reasons: (1) Plotz is not a "victim”

within the meaning of the Victim and Witness Protection Act ("VWPA”), 18 U.S.C.

§ 3663, because Plotz was a participant in the conduct underlying the offense of

conviction and because Plotz was not directly harmed by Zerba's conduct, and (2) the

district court erred when it determined the plea agreement authorized restitution to

Plotz's family.

II. DISCUSSION

A federal court is permitted to order restitution only when authorized by

statute. United States v. Doering, 759 F.3d 862, 866 (8th Cir. 2014). The VWPA

affords sentencing courts with the discretion to order restitution to the victims of

certain offenses or to the victim's family members if the victim is deceased.

18 U.S.C. § 3663(a)(1)(A) and (a)(2). Restitution may include funeral expenses. Id.

§ 3663(b)(3). The statute permits a sentencing court to order restitution "in any

criminal case to the extent agreed to by the parties in a plea agreement,” id.

§ 3663(a)(3), including to persons other than the victim of the defendant's offense of

conviction, id. § 3663(a)(1)(A).

The district court ordered restitution under both the VWPA and the plea

agreement. In the plea agreement Zerba agreed to pay full restitution to "all victims

of the offense(s) including relevant conduct victims.” Zerba contends that Plotz is

not a victim within the meaning of the agreement and that a plea agreement may not

expand the statutory obligation to pay restitution.

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We apply ordinary contract principles when construing plea agreements.

United States v. Mosley, 505 F.3d 804, 808 (8th Cir. 2007). Any ambiguities are

construed against the government. See United States v. Andis, 333 F.3d 886, 890

(8th Cir. 2003) (en banc).

The plea agreement provision at issue does not incorporate or reference the

VWPA, or include the VWPA's definition of a "victim.” The plea agreement uses the

phrase "all victims of the offense(s)” to which it appends "including relevant conduct

victims.” While an argument perhaps can be made that "victims of the offense(s)”

should be coextensive with the definition of "victim” in the VWPA, it is plain and

unambiguous that the phrase "including relevant conduct victims” is adding

something more. The question becomes: is that something more plain or ambiguous?

We find that it is plain.

"Relevant conduct” is a term of art that is defined with precision in the

Sentencing Guidelines. It includes "all acts and omissions committed, aided, abetted,

counseled, commanded, induced, procured, or willfully caused by the defendant . . .

that occurred during the commission of the offense of conviction, in preparation for

that offense, or in the course of attempting to avoid detection or responsibility for that

offense.” U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)(A) (2018). For jointly

undertaken criminal activity, relevant conduct also includes the acts of others that

occurred during or in preparation for the offense of conviction taken "(I) within the

scope of the jointly taken criminal activity, (ii) in furtherance of that criminal activity,

and (iii) [that are] reasonably foreseeable in connection with that criminal activity.”

Id. § 1B1.3(a)(1)(B).

Clemens was present and armed at the express direction of Zerba for the

purpose of protecting the conspiracy from a robbery by Beener and his associates,

which included Plotz. The shooting occurred to protect the conspiracy and

unambiguously falls within the definition of relevant conduct for Zerba as the director

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of this phase of the conspiracy. Zerba must acknowledge as much, having admitted

in his plea agreement: (1) that Clemens was present and armed at the direction of

Zerba; (2) that Clemens was a member of the conspiracy to distribute marijuana; (3)

that "Clemens committed the crime of use, carry, brandish, and discharge of a firearm

during and in relation to the conspiracy to distribute marijuana and in furtherance of

the conspiracy” because it prevented Zerba from being robbed of his marijuana; and

(4) that Clemens's "use, carry, brandish, and discharge of the firearm . . . was within

the scope of the conspiracy to distribute marijuana and was reasonably foreseeable

as a necessary and natural consequence of the conspiracy.” Based on these admitted

facts, Clemens's shooting of Plotz is relevant conduct for Zerba. It is indisputable

that Plotz is a victim of that relevant conduct. His family is entitled to restitution

because the VWPA specifically allows restitution to be ordered in "any criminal case

to the extent agreed to by the parties in a plea agreement,” 18 U.S.C. § 3663(a)(3),

and Zerba agreed to pay restitution for "relevant conduct victims.” Because the plea

agreement authorized the district court to order restitution, we need not reach the

question of whether restitution was separately available under the VWPA.2

We affirm the district court’s order of restitution.