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Majority of Federal Prisoner’s Settlement Seized for Restitution; Tenth Circuit Affirms

A federal prisoner who obtained a $200,000 settlement from the Bureau of Prisons was ordered to pay $145,640 towards restitution to compensate his victims.

Kappelle Simpson-El was convicted in 2008 on 25 counts related to a scheme where he and four others stole cars from dealers in Kansas, Missouri and Oklahoma. They removed the vehicle identification numbers (VINs) and replaced them with other VINs before selling the vehicles. Simpson-El was sentenced to 72 months and ordered, along with his co-defendants, to pay $432,930 in restitution.

While serving his sentence at FCI Low in Arkansas, Simpson-El sustained an injury to his lower left leg at the ankle on September 1, 2009, which caused severe pain and swelling and inhibited his ability to walk. As the injury occurred while he was playing basketball, the recreation supervisor told him to report to sick call the next morning. He did so but was told to “watch the call out” for an appointment to have his leg examined.

The appointment never came, and the pain and swelling continued to increase. Simpson-El made intermittent requests to be seen by medical staff, and on October 26 a paramedic or physician’s assistant (PA) briefly examined him and said it was an ankle spasm. The pain and swelling continued, and a reexamination by a PA on December 30, 2009 found Simpson-El had a torn Achilles tendon. Other than giving him aspirin, no care was provided.

While his symptoms persisted, Simpson-El “attempted to resume recreation to maintain fitness, which efforts, on June 29, 2010, resulted in a re-injury, later determined to be an almost clear-through tear of his Achilles tendon.” It was not until November 9, 2010 that Simpson-El was taken to a hospital; his surgery occurred on January 27, 2011. “The exceptionally long delay” from the injury to treatment resulted in permanent impairment.

Simpson-El sued the federal government for negligent care and the parties reached a $200,000 settlement in 2015, but the government sought to turn the full award over to Simpson-El’s victims as restitution. The Kansas district court that sentenced Simpson-El had to determine if his economic circumstances had materially changed for purposes of restitution pursuant to 18 U.S.C. § 3664(k), while Simpson-El argued that the settlement was to compensate him for future lost income due to his injuries.

The court held that the victims “stand apart as innocent parties whose economic losses most deserve to be compensated.” As to Simpson-El, it stated, “There is no evidence or information in the record indicating the defendant is currently unable to meet his basic needs.” There was also no evidence regarding his inability to work or the amounts he paid to support his two children.

In a May 10, 2016 order, the district court allowed Simpson-El to keep $10,000 of the settlement, approved payment of $44,360 to his attorney in fees and costs in his lawsuit against the Bureau of Prisons, and ordered the remaining $145,640 to be paid towards restitution. See: United States v. Simpson-El, U.S.D.C. (D. Kan.), Case No. 6:07-cr-10161-JTM; 2016 U.S. Dist. LEXIS 62244 and Simpson-El v. United States, U.S.D.C. (E.D. Ark.), Case No. 2:12-cv-00004.

The district court’s judgment was affirmed by the Tenth Circuit on May 17, 2017. The appellate court, on de novo review, noted that Simpson-El had been released from prison and “has paid at least 5% of his gross monthly income toward restitution.”

The Court of Appeals held that “The district court did not illustrate how Mr. Simpson-El’s economic circumstances had changed, but there was no need to do so. The court stated the obvious: that there was now a substantial new fund that had not existed before the time of the settlement. Pointing to the newly created fund, the court relied on a readily apparent change: Before the settlement, Mr. Simpson-El would have had to wait years to earn $200,000; after the settlement, he would immediately recoup $200,000. With the newly created access to $200,000, the district court’s simple explanation was adequate to inform the parties why the settlement would constitute a material change in economic circumstances.” See: United States v. Simpson-El, 856 F.3d 1295 (10th Cir. 2017). 

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Related legal case

United States v. Simpson-El