United States v. Johnson.
Nos. 23-7047 & 23-7066. 1/16/2025. E.D.Okla. Judge Moritz. Restitution—Lost Income—Personal Consumption Deduction—Victim and Witness Protection Act—Payment Schedule.
January 16, 2025
Johnson pleaded guilty to involuntary manslaughter in Indian country for causing the death of Stephanie Heneha-Roubidoux in a drunk-driving accident. The court sentenced Johnson to 36 months in prison and three years of supervised release, but it did not impose a fine because it found that Johnson lacked the financial resources to pay one. The government sought criminal restitution for Stephanie’s lost income, relying on testimony from its expert Clark and from Stephanie’s wife, Kristi Heneha-Roubidoux. The defense expert criticized Clark’s estimate of total lost wages of $208,009 over the course of Stephanie’s life on grounds that it did not apply a personal consumption deduction. The district court declined to deduct personal consumption from the restitution award. It ordered restitution of $158,009—the $208,009 the government requested minus a $50,000 insurance settlement that Kristi had received. The district court further found that Johnson had the financial ability to pay restitution, based on her education and job history. The court ordered $158,009 in restitution due and payable immediately; or, if Johnson was financially unable to make immediate payment, she could make monthly installments of not less than $100 or 10% of her monthly income, whichever was greater, beginning 60 days from her release from custody.
On appeal, Johnson argued that the district court erred in ordering restitution of $158,009 because it did not apply a personal consumption deduction based on a legally incorrect view that such deduction requires the court to also account for lost household contributions. The parties agreed that the Victim and Witness Protection Act (VWPA), 18 USC § 3663, governs restitution here. The VWPA provides that where an offense results in bodily injury to a victim, the district court may order restitution to reimburse the victim for lost income, which includes future lost income when the victim dies because of the offense. And if the victim is deceased, the VWPA allows the victim’s estate to assume the victim’s rights. Personal consumption can be deducted from a restitution award because it consists of funds that would not have been available to a survivor. In deciding whether to apply the personal consumption deduction, a court must conduct the analysis prescribed in United States v. Serawop, 505 F.3d 1112 (10th Cir. 2007), assessing whether the personal consumption offset is undisputed, easily determined, or nonspeculative and whether rejecting the offset creates a windfall. Here, the district court rejected the personal consumption offset because it found Clark’s $208,009 estimate reasonable based on Stephanie’s jobs during her lifetime and the fact that Clark did not factor in Stephanie’s household contributions. The district court thus impliedly held that it could not apply the personal consumption deduction without also considering Stephanie’s household contributions. But household contributions do not fall within lost income under the VWPA. The district court thus erred when it rejected the personal consumption deduction on the grounds that the deduction was not accompanied by a consideration of household contributions.
Johnson also contended that the district court erred in relying on speculative estimates of Stephanie’s earnings in ordering restitution. A restitution award must be based on actual loss. Here, the district court credited Kristi’s testimony about Stephanie’s income based on Kristi’s demeanor and Kristi’s 15-year relationship with Stephanie. And while additional documentation of Stephanie’s wages would have been helpful, service industry workers like Stephanie don’t always receive wage documentation. Given these circumstances, the district court didn’t err in finding that the government presented nonspeculative evidence of Stephanie’s lost income.
Johnson further asserted that the district court did not set a reasonable payment schedule. Here, the district court found that Johnson did not have the ability to pay a fine but nonetheless entered an unclear restitution order. But because the Tenth Circuit vacated the restitution order, it did not decide whether the court erred.
Lastly, the Tenth Circuit granted the parties’ request to redact information about Stephanie’s date of death, cemetery, and funeral home, as well as Kristi’s address, from Supplemental Record Volume II and to keep the district court’s statement of reasons entirely under seal.
The restitution award was vacated and the matter was remanded for the district court to reconsider whether to deduct Stephanie’s personal consumption from the restitution award. On remand, the district court should also reconsider its payment schedule. The parties were also directed to file a redacted version of Supplemental Record Volume II within 7 days.