UNITED STATES of America, Plaintiff, V. Levangela BEDONIE, Defendant

U.S. v. BEDONIE 1285 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

2. Sentencing and Punishment O2135, UNITED STATES of America, 2148 Plaintiff, Defendant convicted of involuntary v. manslaughter was liable for full restitution, including future lost income, to victim’s Levangela BEDONIE, Defendant. mother pursuant to Victim Witness Protec- United States of America, Plaintiff, tion Act (VWPA), even though defendant was indigent, where defendant had capaci- v. ty to make minimal monthly payments to- Redd Rock Serawop, Defendant. ward court-ordered fines or restitution, Nos. 2:02–CR–00690–PGC, victim’s mother was indigent, and victim’s 2:03–CR–00339 PGC. death deprived his mother of means to pay for her food and shelter. 18 U.S.C.A. United States District Court, § 3663(a)(1)(B). D. Utah, Central Division. 3. Sentencing and Punishment O2121 For purposes of determining restitu- May 11, 2004. tion award made pursuant to Mandatory Background: Defendants were convicted Victims Restitution Act (MCRA) in man- in separate cases of involuntary manslaughter prosecution, ‘‘victim’’ was mur- slaughter and voluntary manslaughter. dered person himself, rather than his es- Holdings: The District Court, Cassell, J., tate. 18 U.S.C.A. § 3663A(a)(2). held that: See publication Words and Phras- es for other judicial constructions (1) involuntary manslaughter was ‘‘crime and definitions. of violence,’’ for purposes of Mandato- ry Victims Restitution Act (MCRA); 4. Sentencing and Punishment O2148 Mandatory Victims Restitution Act (2) MCRA required awards of future lost (MCRA) requires lost income award in all income; homicide cases. 18 U.S.C.A. § 3663A(b). (3) restitution award included funds spent for services of Navajo medicine man; 5. Sentencing and Punishment O2148 and Mandatory Victims Restitution Act (MCRA) requires awards of all lost income (4) court would declare defendants’ resti- resulting from offense at time of sentenc- tution awards due in full immediately, ing, both losses that have occurred in past but payable on court-established and that will occur in future. 18 U.S.C.A. schedule. § 3663A(b). Ordered accordingly. 6. Statutes O241(1) Rule of lenity does not apply to resti- 1. Sentencing and Punishment 2100 O tution statutes. Involuntary manslaughter was ‘‘crime of violence,’’ for purposes of Mandatory 7. Criminal Law O486(1) Victims Restitution Act (MCRA) provision Expert testimony is admissible if: (1) requiring defendants convicted of crimes testimony is based upon sufficient facts or of violence to pay restitution to their vic- data, (2) testimony is product of reliable tims. 18 U.S.C.A. §§ 16, 3663A. principles and methods, and (3) witness See publication Words and Phras- has applied principles and methods relies for other judicial constructions ably to facts of case. Fed.Rules Evid.Rule and definitions. 702, 28 U.S.C.A. 1286 317 FEDERAL SUPPLEMENT, 2d SERIES

8. Sentencing and Punishment O2172 where victim would have received stipend Court should use race- and sex-neu- from her tribe, and most conservative tral data in calculating future lost income race- and sex-neutral calculation of victim’s in awarding restitution in homicide cases. future wages was $308,633. 18 U.S.C.A. § 3663A. 9. Sentencing and Punishment O2185 13. Sentencing and Punishment O2172 In calculating future lost income com- In calculating criminal restitution ponent of restitution award in homicide award in homicide case pursuant to Man- case, defendants should shoulder burden of datory Victims Restitution Act (MCRA), it proving that any reduction based on race was not appropriate to reduce victims’ fu- or sex is appropriate. ture lost income by deducting for con- 10. Sentencing and Punishment O2172 sumption. 18 U.S.C.A. § 3663A. In calculating future lost income com- 14. Sentencing and Punishment O2102 ponent of restitution award in homicide Federal courts have no inherent pow- case, it was not appropriate to make geo- er to award restitution in criminal case, so graphical reduction based on decedent’s their authority to do so is controlled exclu- residence at time of his death. sively by language of authorizing statute. 18 U.S.C.A. § 3663A. 11. Sentencing and Punishment O2148, 2166 15. Sentencing and Punishment O2152 Restitution order in amount of Funds spent for services of Navajo $446,665 was warranted in involuntary medicine man in connection with burial of manslaughter prosecution as compensation involuntary manslaughter victim were sub- for victim’s future lost wages, even though ject to reimbursement pursuant to Manda- victim had made only $1200-1500 annually, tory Victims Restitution Act (MCRA) as victim was Native-American, and statistics ‘‘necessary funeral and related services,’’ for county in which victim lived showed where victim had been raised in Navajo substantially lower than national average, tradition, and services were connected with burial service. 18 U.S.C.A. § 3663A(b)(3). where victim planned to pursue further See publication Words and Phras- education as artist, victim had several es for other judicial constructions scholarships to attend arts programs, low- and definitions. est race-neutral figure for individual of 16. Sentencing and Punishment O2206 victim’s age in country was $744,442, and it In order to comply with provision of was likely that victim would have been Mandatory Victims Restitution Act employed as artist 60% of time. 18 (MCRA) requiring district court to specify U.S.C.A. § 3663A. manner and schedule by which defendants 12. Sentencing and Punishment O2148, were to pay restitution, court would de- 2166 clare defendants’ restitution awards due in Restitution order in amount of full immediately, but payable on court- $325,751 was warranted in voluntary man- established schedule, even though defen- slaughter prosecution as compensation for dants were financially unable to pay restitution awards in full immediately. 18 victim’s future lost wages, even though U.S.C.A. § 3664. victim was only three months old, victim was Native-American, and statistics for 17. Sentencing and Punishment O2206 county in which victim lived showed sub- In setting restitution schedules pursu- stantially lower than national average, ant to Mandatory Victims Restitution Act U.S. v. BEDONIE 1287 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

(MCRA), it was appropriate for district Kristen Angelos, Federal Defender, court to consider Bureau of Prison’s In- Fred Metos, Salt Lake City, UT, for De- mate Financial Responsibility Program fendants. (IFRP) guidelines. 18 U.S.C.A. § 3664; 28 C.F.R. § 545.11. MEMORANDUM OPINION AND OR- DER AWARDING LOST INCOME AND OTHER RESTITUTION Kevin Sundwall, U.S. Attorney, Felice J. Viti, U.S. Attorney, Salt Lake City, UT, CASSELL, District Judge. for Plaintiffs.

TABLE OF CONTENTS

FACTUAL AND PROCEDURAL BACKGROUND TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1288 A. United States v. Bedonie TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1288 B. United States v. Serawop TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1291

ANALYSISTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1293 I. The Court Must Order Restitution for the Violent Crimes Committed by Defendants Bedonie and Serawop TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1293 A. The Mandatory Victim Restitution Act Applies to Bedonie’s and Serawop’s Crimes of ViolenceTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1293 B. Even if the Mandatory Victims Restitution Act Does Not Apply to Ms. Bedonie, the Court Would Impose the Same Restitution Under the Victim Witness Protection Act TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1294 1. The Need to Provide Restitution to Victims Is More Pressing than the Risk of Extending Court ProceedingsTTTTTTTTTTTTTTTTTTTTTTTTTTT1294 2. The Seventh Circuit’s Contrary Analysis in United States v. Fountain is Not PersuasiveTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1296 3. The Court Would Order Full Restitution Under the VWPA TTTTTTTTTTTTT1298

II. Bedonie and Serawop Must Pay Restitution for the Lost Income of their Victims TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1299 A. The Deceased—Mr. Johnson and Beyonce Serawop–Are Entitled to Restitution as ‘‘Victims’’ of the Homicide Offenses Against Them TTTTTTTTTT1299 1. Lost Income Is Properly Awardable to Mr. Johnson as the ‘‘Victim’’ of a Homicide TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1299 2. The Court Need Not Reach the Issue of Whether Ms. Johnson is Also a Victim of the Offense TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1300 3. Lost Income Is Properly Awardable to Beyonce Serawop as the ‘‘Victim’’ of a Homicide TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1302 B. The MVRA Requires a Lost Income Award in Homicide CasesTTTTTTTTTTTTTT1302 C. The MVRA Requires an Award for Both Past and Future Lost IncomeTTTT1305 D. The MVRA Should be Interpreted Broadly as a Remedial Measure Rather than Narrowly Under the Rule Lenity TTTTTTTTTTTTTTTTTTTTTTTTTT1309

III. Defendant Bedonie Should Pay Lost Income Restitution of $446,665 and Defendant Serawop Should Pay Lost Income Restitution of $325,751 TTTTTTTTTTT1311 A. Expert Testimony on the Amount of Lost Income TTTTTTTTTTTTTTTTTTTTTTTTT1312 1. Dr. Randle’s Expect Testimony is Admissible TTTTTTTTTTTTTTTTTTTTTTTTT1312 2. Lost Income Projections for Mr. Johnson TTTTTTTTTTTTTTTTTTTTTTTTTTTTT1313 3. Lost Income Projections for Beyonce Serawop TTTTTTTTTTTTTTTTTTTTTTTT1314 B. Race and Sex Adjustments TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1315 C. Calculating the Lost Income Awards TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1320 1. The Lost Income of Mr. Johnson TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1320 2. The Lost Income of Beyonce SerawopTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1322 1288 317 FEDERAL SUPPLEMENT, 2d SERIES

D. No Need to Offset for Consumption TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1322

IV. Restitution is also Proper for the Services of a Navajo Medicine Man TTTTTTTTTTTT1327

V. The Defendants’ Restitution is Due Immediately, Payable on a Schedule TTTTTTTTT1329

CONCLUSION TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT1333

The court has before it two tragic homi- concludes that defendant Bedonie should cide cases presenting significant restitution also be ordered to pay restitution for the issues. The court concludes that substan- services of Navajo medicine man used by tial restitution should be ordered in both Mr. Johnson’s family as part of the funer- cases, including restitution for the future al services in this case. Part V deter- income that the victims lost when they mines that the restitution of the defen- were killed by the defendants. In particu- dants is due immediately and to be paid lar, the court orders defendant Bedonie to on an appropriate schedule. pay restitution for lost income of her victim—Mr. Brian Johnson—of $446,665 FACTUAL AND PROCEDURAL The court also orders defendant Serawop BACKGROUND to pay restitution for lost income of his The factual and procedural background victim—Beyonce Serawop—of $325,751. of the Bedonie and Serawop cases is as A brief outline of how the court reach- follows. es that conclusion may be useful at the A. United States v. Bedonie. outset. Part I of this opinion explains that the Mandatory Victims Restitution On the evening of April 19, 2002, defen- Act (MVRA), which applies to crimes of dant Levangela Bedonie and her boy- violence, is applicable to the crimes of in- friend, Oscar Williams, stopped at the Is- voluntary and voluntary manslaughter may Trading Post and agreed to give a committed by defendants Bedonie and ride to the victim in this case—Brian John- Serawop respectively. Part II concludes son—and two other men. As Ms. Bedonie that the MVRA requires a restitution drove toward Montezuma Creek on the award in homicide cases for lost income Navajo Reservation, she drank beer of- of the victims, including income that they fered to her by her boyfriend and fre- would have lost in the future. Part III quently turned to face Johnson and the reviews issues relating to the calculation others in the back seat. Each of the three of the award. The court appointed an men repeatedly asked her to watch where expert to calculate lost income in this she was driving. She told them she knew case, who made reasonable and reliable what she was doing. projections of future lost income. The Not too much farther down the road, most appropriate of those projections rely Ms. Bedonie abruptly turned the steering not on the race or sex of the victims, but wheel, causing the car to fishtail. Clearly rather on race- and sex-neutral data. under the influence of alcohol, she lost Using these neutral projection, without control, causing the car to skid off the road any discount for possible ‘‘consumption’’ and roll about four times before coming to of income by the victims, is the appropri- rest on its tires. Mr. Johnson was still in ate way to calculate restitution. Each the vehicle, while the two other rear seat victim lost several hundred thousands of passengers got out and summoned help. dollars in income, which the defendants A short time later, emergency medical should be required to repay. Part IV technicians arrived at the scene of the U.S. v. BEDONIE 1289 Cite as 317 F.Supp.2d 1285 (D.Utah 2004) accident, which was approximately 11 On January 21, 2004, Ms. Bedonie ap- miles north of Aneth, Utah, on the Navajo peared before the court for sentencing. Reservation. The technicians were unable The court heard extensive allocution from to revive Mr. Johnson, whose skin was Ms. Bedonie, Ms. Bedonie’s mother, and already cold to the touch when they ar- Ms. Johnson, the victim’s mother. Ms. rived. An examination by the Utah State Johnson explained why she had sought the Department of Health Medical Examiner services of the medicine man. She also determined that Mr. Johnson died as a explained how her son had provided criti- result of a blunt force injury to the head. cal financial support to her family before A bitter irony of this tragedy is that just he was killed. Ms. Johnson testified prior to picking up Mr. Johnson and his ‘‘maybe I’m going to lose my trailer be- friends, Ms. Bedonie had picked up Mr. cause of this [or] lose my carTTTT [L]ast Williams at the conclusion of a 90–day jail month TTT I didn’t have any money to pay sentence for driving under the influence of for butane. I was without butane for two alcohol. weeks when it started snowing, and then I On November 6, 2002, Ms. Bedonie, an ran out of food.’’ 2 Ms. Johnson also enrolled member of the Navajo Indian talked about Mr. Johnson’s aspirations to Tribe, was charged in a one-count indict- become an artist and presented beautiful ment with involuntary manslaughter with- examples of the sketches Mr. Johnson had in the Navajo Nation.1 She was arraigned drawn. on July 29, 2003, and pled guilty on Octo- After hearing all of the evidence, the ber 10, 2003. Pursuant to a plea agree- court ordered from the bench that defen- ment, the government agreed to recom- dant Bedonie was to serve 18 months in mend credit for accepting responsibility prison. The court also tentatively ordered and not to seek an upward departure from restitution for all funeral expenses, includ- the sentencing guidelines. ing expenses for the services of a Navajo A presentence report was then pre- medicine man. The court took the restitu- pared, which found that the sentencing tion issue under advisement to draft an guideline range was 12 to 18 months. The opinion on the restitution issue. The next report also suggested restitution for funer- day, January 22, 2004, the court signed a al expenses in the amount of $4,185. This judgment reflecting the 18–month sen- sum had previously been paid by the Utah tence and the restitution of $7,325 and State Office of Crime Victims Reparations, continued to work on an opinion explaining so the report recommended repayment to the restitution award. the state office. The report also noted that Mr. Johnson’s mother had requested On January 30, 2004, the court conclud- reimbursement for $3,140 for the services ed that the Mandatory Victims Restitution of Navajo medicine man in connection with Act 3 required restitution not only for fu- her son’s burial. The defendant, through neral expenses but also for income lost by counsel, agreed to the restitution for direct Mr. Johnson. In a written order, the funeral expenses, but objected to any resti- court explained: ‘‘The court is legally obli- tution for the medicine man. gated to impose [this] assessment [for lost

1. 18 U.S.C. § 1112(a) & (b); 18 U.S.C. 3. 18 U.S.C. §§ 3663A, 3664. § 1153.

2. Sentencing Hr’g, United States v. Bedonie, Jan. 21, 2004, Tr. at 13. 1290 317 FEDERAL SUPPLEMENT, 2d SERIES income] by 18 U.S.C. § 3663A, the Man- Federal Rules of Evidence, the inherent datory Victims Restitution Act.’’ 4 Accord- ‘‘general power of calling witnesses in aid ingly, the court entered an amended judg- of justice,’’ and the procedural provision of ment awarding $50,000 for lost income the MVRA authorizing the court to ap- restitution. This amount was ‘‘based on point a special master to resolve restitu- the factual conclusion that, but for the tion issues.7 The court also invited the criminal offense of Ms. Bedonie, Mr. John- government to consider withdrawing its son would have earned well in excess of objection to the appointment of an expert that amount. In particular, Mr. Johnson in light of the government’s obligations was 22 when he was killed by the defen- under the Victims Bill of Rights to make dant, and undisputed facts at the sentenc- its ‘‘best efforts’’ to afford crime victims ing hearing plainly established that he was the ‘‘right to restitution.’’ 8 The govern- a promising artist as well as employed in ment later withdrew its objection to the other activities.’’ 5 To give the defendant expert and lost income restitution, but re- an opportunity to contest this amount, the served its right to object to the amount of court then ordered the new judgment held restitution. In a separate order, the court in abeyance pending a hearing on the mat- also rejected defendant Bedonie’s argu- ter. ment that the investigation of restitution On February 5, 2004, the court entered issues was too late, noting that the court an order giving notice that it was consider- has the power to hold open restitution ing appointing its own expert pursuant to issues for a period of 90 days after sen- Rule 706 of the Federal Rules of Evidence tencing under the MVRA.9 to help determine the lost income suffered On March 25, 2004, the court held a by Mr. Johnson and giving the parties an hearing at which Dr. Randle testified opportunity to object. One week later, the about lost income suffered by Mr. John- defendant filed an objection to the court son. He concluded that Mr. Johnson’s lost appointing an expert witness, and on Feb- income was somewhere between $433,562 ruary 17, 2004, the government filed its and $850,959, depending on what assump- own objection, calling any lost income in tions one made. Dr. Randle also testified the case ‘‘too speculative’’ to award. that, making the highly conservative as- On February 18, 2004, the court rejected sumption that Mr. Johnson would have these objections and appointed an expert earned no more than $1500 per year (the (Dr. Paul H. Randle) on lost income calcu- amount he had made selling art in high lation. That order, published elsewhere,6 school), then Mr. Johnson’s loss was concluded that the court has authority to $40,907. On April 15, 2004, the court held investigate the lost income issue through a further hearing at which the lost income an expert by virtue of Rule 706 of the issue was capably argued by counsel. Fol-

4. See Order Entering Amended Judgment, 7. See id. at 1260 (citing, inter alia, MCCORMICK Holding Judgment in Abeyance, and Directing ON EVIDENCE § 8, at 17 (3rd ed.1984); 18 Briefing and a Hearing at 1, United States v. U.S.C. § 3664(d)(6)). Bedonie (Jan. 30, 2004) (Dkt. No. 23–1). 8. See id. at 1268 (citing 42 U.S.C. § 10606(b)). 5. Id. at 2. 9. See Order Rejecting Timing Objections to 6. See United States v. Serawop, 303 F.Supp.2d Appointment of an Expert on Restitution, 1259 (D.Utah 2004). United States v. Bedonie, 303 F.Supp.2d 1259, id. (citing 18 U.S.C. § 3664(d)(5)). U.S. v. BEDONIE 1291 Cite as 317 F.Supp.2d 1285 (D.Utah 2004) lowing that hearing, the court directed Dr. been inflicted on the infant. Dr. Staker Randle to prepare revised calculations of quickly arranged a life-flight helicopter to the lost income suffered by Mr. Johnson in Primary Children’s Medical Center in Salt which Mr. Johnson’s possible ‘‘consump- Lake City. Dr. Staker questioned defen- tion’’ was subtracted from the figures. dant Serawop as to whether he was aware These calculations produced a figure for of any trauma suffered by Beyonce which lost income of between $76,783 and would explain the serious head injury she $561,038. had suffered. Defendant Serawop said that the victim’s six-year-old half brother B. United States v. Serawop. had told him that the baby had fallen The other consolidated case pending be- during the evening. Beyonce Serawop fore the court also involves a homicide. At was then flown by life-flight helicopter to about 1:30 a.m. on November 3, 2002, de- Primary Children’s hospital, where she fendant Redd Rock Serawop called the was pronounced dead on arrival. Bureau of Indian Affairs (BIA) Police De- Ms. Moya was released from the Du- partment and requested that an ambulance chesne County Jail and repeatedly called come to his residence in Fort Duchesne, defendant Serawop to question him about Utah. He explained that the ambulance what had happened to Beyonce. Ms. was needed to take his three-month-old Moya was suspicious that defendant Sera- daughter, Beyonce Serawop, to the hospi- wop had done something to injure their tal. Defendant Serawop was acting as her daughter. During one of the phone calls, primary care-giver since the infant’s moth- defendant Serawop claimed that their two- er, Ernestina Moya, had reported to the year-old son had hit Beyonce in the head Duchesne County Jail the previous morn- with his plastic drinking cup. ing to begin serving a twelve-day jail sentence. (Ms. Moya and defendant Serawop Investigative efforts then focused on as- had a co-habitation relationship.) Three- certaining how Beyonce had been injured. month-old Beyonce, her twenty-two- On November 4, 2002, defendant Serawop month-old brother Grant, six-year-old half reported to investigators that although he brother Isaiah, and six-year-old cousin An- was not aware of any injuries suffered by gel were all in the home and under the his daughter during the evening of Novem- defendant’s care. ber 2nd and early morning of November A few minutes later, Ute Tribal emer- 3rd, he was concerned that one of the gency medical staff arrived at the Serawop other children in the home may have residence and took the baby and the defen- dropped the baby. dant in the ambulance about seven miles to On November 14, 2002, during a subse- the Uintah Basin Medical Center in quent interview with FBI Special Agent Roosevelt, Utah. Emergency medical staff Ashdown, defendant Serawop acknowl- noted that the infant had difficulty breath- edged misleading investigators during his ing. initial interview. Defendant Serawop now Beyonce arrived at the hospital about suggested that he had tripped over a shoe ten minutes later, where emergency room while carrying Beyonce in the bedroom of physician Dr. Glenn Robertson and on-call his residence around 12:30 a.m. on Novem- pediatrician Dr. Gregory Staker were un- ber 3, 2002, and that he had fallen on her able to resuscitate her. Dr. Staker per- head as he hit the floor. formed a spinal tap which produced blood, On December 3, 2002, investigators suggesting that serious head trauma had videotaped defendant Serawop as he reen- 1292 317 FEDERAL SUPPLEMENT, 2d SERIES acted for investigators how he tripped and again and frankly admitted that he was fell in his bedroom while carrying his frustrated with Beyonce’s crying around daughter. Subsequent investigation estab- 12:30 a.m. on November 3, 2002, when he lished Beyonce’s injuries were inconsistent ‘‘lost it’’ and threw the child. Although his with the fall as reenacted by defendant recollection of the details of what took Serawop. place were not very clear, he believes the On February 7, 2003, the defendant vol- child’s head struck the sink or the toilet in untarily took a polygraph examination the bathroom, after which she cried briefly conducted by the FBI. The examiner con- and became motionless. Defendant Sera- cluded that defendant Serawop had been wop ultimately contacted the BIA police untruthful regarding his November 14, department for an ambulance about an 2002, account of the fatal injuries suffered hour after he threw his daughter. by his infant daughter. When told of this A presentence report was prepared in conclusion, defendant Serawop again re- the matter. With regard to victim impact, vised his account and claimed that he had the report noted Ms. Moya’s tremendous accidently dropped his daughter while sadness about her daughter’s death. Ms. reaching for her bottle in the bathroom Moya has participated in some grief coun- and that her head hit the sink counter as seling but acknowledges she has struggled she fell. Defendant Serawop declined to with drug and alcohol abuse in an attempt take a further polygraph examination re- to cope with the crime. Moreover, in addi- garding this revised statement. tion to the obvious abuse to Beyonce, each On May 7, 2003, Redd Rock Serawop of the other three children in the home was charged with second degree murder that night witnessed terrible conduct on 10 while within Indian Country. The evi- the defendant’s part, with potentially seri- dence at the four-day jury trial, including ous repercussions to their normal child- an autopsy report, established that Bey- hood development. once Serawop received multiple violent injuries which led to her death. The infant’s After receiving the report, the court skull was fractured in two places, one right concluded that an expert would be of assis- rib was clearly fractured, and two left ribs tance in determining whether lost income appeared to be fractured as well. State- restitution should be awarded for income ments from the victim’s six-year-old half that Beyonce would have earned but for brother described an evening of tension her death at the hands of defendant Sera- and abuse in defendant Serawop’s care. wop. The court accordingly appointed Dr. Beyonce’s crying interrupted the defen- Paul Randle to investigate this issue (in dant Serawop’s television viewing, and he parallel with his investigation in the Bedo- abused the infant on the couch in anger. nie case). Following the blow that led to Beyonce’s On March 25, 2004, the court held a death, defendant Serawop waited for ap- hearing on sentencing and restitution is- proximately an hour before summoning sues in this case (along with the Bedonie medical help. The jury found that Sera- case) and tentatively concluded that defen- wop was guilty of the lesser included of- dant Serawop should serve 10 years, the fense of voluntary manslaughter. statutory maximum for voluntary man- During the presentence interview, de- slaughter. The court then heard testimo- fendant Serawop revised his account yet ny from Dr. Randle concerning lost income

10. See 18 U.S.C. § 1111; 1153(a). U.S. v. BEDONIE 1293 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

suffered by Beyonce. He concluded that crimes.’ ’’ 13 The Act firmly directs that Beyonce lost somewhere between $171,366 ‘‘[n]otwithstanding any other provision of and $576,106 as the result of her death, law, when sentencing a defendant convict- depending on what assumptions were ed of [certain offenses] TTT the court shall made. On April 15, 2004, the court held a order TTT that the defendant make restitu- further hearing at which restitution issues tion to the victim of the offense or, if the were well argued by counsel. Following victim is deceased, to the victim’s es- that hearing, Dr. Randle prepared revised tate.’’ 14 Thus, ‘‘Congress elected not calculations of the loss suffered by Bey- merely to permit the trial court to order once, in which he removed her possible restitution in these cases, it affirmatively ‘‘consumption’’ from the figures. These mandated restitution.’’ 15 calculations produced a loss of between $30,349 to $765,118. Dr. Randle also con- The MVRA applies to property crimes, servatively calculated Beyonce’s lost in- consumer product tampering crimes, and come based solely on the loss of the ‘‘sti- (relevant to this case) ‘‘crime[s] of violence, pend’’ that she was entitled to receive as a as defined in [18 U.S.C. § 16]’’ in which tribal member. Using the projected sti- ‘‘an identifiable victim or victims has suf- pend amounts (between $80 and $100 a fered a physical injury or pecuniary month), the projected lifetime loss was be- loss.’’ 16 Defendant Serawop concedes that tween $17,118 and $21,397. the MVRA governs restitution in his case. His crime—voluntary manslaughter—is ANALYSIS obviously a crime of violence that produced I. The Court Must Order Restitution physical injury, i.e., death. There is no for the Violent Crimes Committed doubt that full restitution is mandatory for by Defendants Bedonie and Serawop. him.17 Defendant Bedonie, however, ar- A. The Mandatory Victim Restitution gues that her crime—involuntary man- Act Applies to Bedonie’s and Sera- slaughter—is not covered by the MVRA wop’s Crimes of Violence. but instead by the discretionary provisions of the VWPA. She concedes the obvious The court must order both defendants point that her actions produced physical Bedonie and Serawop to pay full restitu- injury (i.e., the death of Mr. Johnson). tion if their cases are governed by the She argues, however, that involuntary Mandatory Victims Restitution Act of manslaughter is not a ‘‘crime of violence’’ 1996 11 rather than its predecessor, the as defined in 18 U.S.C. § 16. That section Victim and Witness Protection Act of 1982 (VWPA).12 The ‘‘MVRA’s primary pur- defines a ‘‘crime of violence’’ as: pose is to force offenders to ‘pay full resti- (a) an offense that has as an element tution to the identifiable victims of their the use, attempted use, or threatened

11. Pub.L. 104–132, Title II, § 201, 110 Stat. 14. 18 U.S.C. § 3663A(a)(1). 1214, 1227–1236, codified as 18 U.S.C. §§ 3663A, 3664. 15. United States v. Monts, 311 F.3d 993, 1001 (10th Cir.2002), cert. denied, 538 U.S. 938, 12. Pub.L. 97–291, § 4, 96 Stat. 1248, 1249– 123 S.Ct. 1605, 155 L.Ed.2d 342 (2003). 53, codified as 18 U.S.C. §§ 3663, 3664. 16. 18 U.S.C. § 3663A(c)(1)(A) and (B). 13. United States v. Reano, 298 F.3d 1208, 1211 (10th Cir.2002) (quoting S.REP. NO. 104– 17. See United States v. Checora, 175 F.3d 782, 179, at 12 (1996), reprinted in 1996 795 (10th Cir.1999) (applying MVRA to volun- U.S.C.C.A.N. 924, 925). tary manslaughter case). 1294 317 FEDERAL SUPPLEMENT, 2d SERIES

use of physical force against the person that a California manslaughter conviction or property of another, or was a ‘‘violent felony’’ under the Armed (b) any other offense that is a felony Career Criminal Act, which uses defining and that, by its nature, involves a sub- language identical to the ‘‘crime of vio- stantial risk that physical force against lence’’ definition in 18 U.S.C. § 16(a). Cal- the person or property of another may ifornia defines manslaughter as ‘‘the un- be used in the course of committing the lawful killing of a human being without offense.18 malice.’’ 22 The Tenth Circuit in Lujan Bedonie pled guilty to involuntary man- found it unnecessary to consider the three slaughter in violation of 18 U.S.C. forms of manslaughter in California—vol- § 1112(a), which provides ‘‘manslaughter untary, involuntary, and vehicular. In- is the unlawful killing of a human being stead, the Circuit simply stated that a without malice.’’ The statute further dis- California manslaughter conviction was tinguishes between ‘‘voluntary’’ and ‘‘invol- ‘‘clearly’’ a violent felony.23 Accordingly, untary’’ manslaughter, providing that ‘‘in- under the controlling Tenth Circuit deci- voluntary’’ manslaughter occurs ‘‘[i]n the sion in Lujan, involuntary manslaughter is commission of an unlawful act not amount- plainly a crime of violence.24 ing to a felony, or in the commission in an unlawful manner, or without due caution B. Even if the Mandatory Victims and circumspection, of a lawful act which Restitution Act Does Not Apply to might produce death.’’ 19 Ms. Bedonie, the Court Would Im- pose the Same Restitution Under [1] Defendant Bedonie argues that be- the Victim Witness Protection Act. cause involuntary manslaughter can be committed in various ways that, in her [2] Even if the court were to conclude view, do not necessarily involve force, her that Ms. Bedonie’s homicide was not a crime is not one of violence. The court crime of violence and therefore not cov- disagrees, finding that involuntary man- ered by the MVRA, the VWPA would still slaughter is a crime of violence under 18 apply. Proceeding under the VWPA, the U.S.C. § 16(a). While the Tenth Circuit court would exercise its discretion to recently held in United States v. Lucio– award exactly the same full restitution. Lucio that a mere conviction under a Tex- as DUI statute, standing alone, was not a 1. The Need to Provide Restitution to crime of violence, that opinion specifically Victims Is More Pressing than the declined to address the question of wheth- Risk of Extending Court Proceed- er a DUI causing injury or death was a ings. crime of violence.20 In an earlier decision, The MVRA tracks word for word many United States v. Lujan,21 the Circuit held of the provisions in the earlier-enacted

18. 18 U.S.C. § 16. 23. 9 F.3d at 891.

19. 18 U.S.C. § 1112(a). 24. Accord United States v. Moore, 38 F.3d 977, 20. See 347 F.3d 1202 (10th Cir.2003) (reserv- 979–80 (8th Cir.1994); but see Jobson v. Ash- ing issue of whether pure DUI causing death croft, 326 F.3d 367 (2nd Cir.2003) (disagree- is crime of violence). ing with Moore ). Cf. Leocal v. Ashcroft, ––– U.S. ––––, 124 S.Ct. 1405, 158 L.Ed.2d 76 21. 9 F.3d 890 (10th Cir.1993). (U.S.2004) (granting certiorari to resolve this issue). 22. Cal.Penal Code § 192 (Deering 1993), quoted in Lujan, 9 F.3d at 891. U.S. v. BEDONIE 1295 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

VWPA, including the lost income and fu- minimal monthly payments toward court- neral expense provisions that are at issue ordered fines or restitution.’’ 27 The abili- here. One obvious salient difference be- ty to make only minimal payments toward tween the two statutes is that restitution restitution is a factor weighing against fur- under the Mandatory Victims Restitution ther extending review of restitution issues. Act is mandatory, while under the Victim Finally, the court is directed to consider Witness Protection Act it is discretionary. ‘‘such other factors as the court deems In exercising its discretion under the appropriate.’’ The court believes that sev- VWPA, the court must consider both ‘‘the eral additional factors are relevant. This amount of the loss sustained by each vic- is a homicide case, involving the most seri- tim as a result of the offense’’ and ‘‘the ous possible harm known to the criminal financial resources of the defendant, the law—the death of a victim. Because of the financial needs and earning ability of the loss of life, doubts should be resolved in defendant and the defendant’s dependents, favor of taking the time to explore restitu- and such other factors as the court deems tion issues. Moreover, the indigency of appropriate.’’ 25 The court ‘‘may decline’’ the victim’s mother (the representative of to enter any order of restitution ‘‘[t]o the extent that the court determines that the the victim in this matter) combined with complication and prolongation of the sen- defendant Bedonie’s lack of significant as- tencing process resulting from the fashion- sets would make it difficult for her to file a ing of an order of restitution TTT out- civil suit seeking redress for the defen- weighs the need to provide restitution to dant’s homicide. If lost income issues are any victims.’’ 26 Considering all of the not resolved here, they will apparently specified and other relevant factors, the never be resolved. court finds that it should exercise its dis- A final point is also relevant to this cretion in favor of awarding restitution, issue—there is a compelling reason for rather than truncate the proceedings by considering every dollar of restitution that declining to make such award. might be awarded to any victim here. Ms. The first factor the court is directed to Johnson testified at the January 21, 2004, consider in determining whether to make a sentencing hearing about the devastating restitution award is ‘‘the loss sustained’’ by financial consequences of the defendant’s the victim. For reasons explained later in homicide, which deprived her of financial this opinion, not only was the breath of life contributions from Mr. Johnson. As she was lost when Mr. Johnson was killed by credibly explained: the defendant, but there were substantial To this day, I haven’t been able to get financial losses. caught up on my bills. I have to pay for The next factor the court must consider my trailer and my car. I can’t afford to is ‘‘the financial resources of the defen- pay for my propane, electricity and wa- dant, the financial needs and earning abili- ter payments, so I have been turning to ty of the defendant and the defendant’s the church to help me out. I also can’t dependents.’’ The presentence report in afford to buy personal needs, food and this matter indicates that defendant Bedo- even to do my laundry. nie lacks significant debts or assets, has no I also have a daughter who is in high dependents, and ‘‘has the capacity to make school and she needs school supplies.

25. 18 U.S.C. § 3663(a)(1)(B). 27. Presentence Report, United States v. Bedo- nie, at ¶¶ 37, 44. 26. 18 U.S.C. § 3663(a)(1)(B)(ii). 1296 317 FEDERAL SUPPLEMENT, 2d SERIES

And at the beginning of the school year, reason is not merely historical, or con- I couldn’t even afford to buy her any ceptual; there is, indeed, no difference clothes or any school supplies. We also of principle between past and future have livestock that we can’t afford to earnings, so far as the purposes of crimi- buy hay to feed them. Many times I nal punishment are concerned. To dis- have turned to my family for help, but able a person from working, temporarily they can only do so muchTTTT or permanently, is to deprive him of his My bi-weekly income is around $200. human capital; it is a detail whether the Right now I only have one job and I consequence is to deprive him of earn- work six days a week.28 ings he would have had in the past or In sum, after considering all the relevant earnings he would have had in the fu- factors, the court concludes that any pro- ture. The reason for treating past and longation and complication of sentencing future earnings differently is practical: that might result from considering restitu- the calculation of lost future earnings tion does not outweigh the need to provide involves the difficult problem of translat- restitution to any victims. ing an uncertain future stream of earn- 2. The Seventh Circuit’s Contrary ings into a present valueTTTT It is not a Analysis in United States v. Foun- problem met for solution in a summary tain is Not Persuasive. proceeding ancillary to sentencing for a criminal offense.30 In reaching this conclusion, the court is aware of a contrary analysis in the 1985 In view of this ‘‘practical’’ problem, the Seventh Circuit decision—United States v. Circuit then held that the VWPA never Fountain29—a case cited prominently by permitted future lost income awards: defendant Bedonie. The Seventh Circuit’s ‘‘Obeying the statutory directive that ‘the analysis is not controlling here and ap- imposition of such order TTT not unduly pears unpersuasive. complicate or prolong the sentencing pro- In Fountain, the Seventh Circuit held, cess,’ we hold that an order requiring a over the strong dissent of Judge Swygert, calculation of lost future earnings unduly that the VWPA did not permit a district complicates the sentencing process and court to conduct a hearing to determine hence is not authorized by the VWPA’’ 31 whether to award restitution for future unless such order were uncontested. lost income for a victim of a homicide. Judge Swygert dissented on this issue. The Circuit had no difficulty with award- He saw no reason to adopt a per se rule ing past lost income or, indeed, no concep- barring restitution for future lost income tual difficulty with awarding future lost whenever there was dispute: ‘‘Surely income. Instead, the Circuit was con- there are some victims whose future earn- cerned solely with the burden to district ings are easily predictable, and surely dis- courts in making such determinations. trict judges have sufficient competence The Circuit explained the practical prob- and experience to expeditiously predict fu- lem as follows: ture earnings and discount to present val- Compensation for the loss of future ue, despite the failure of the parties to earnings is quintessentially civil. The agree on the necessary calculations.’’ 32

28. Sentencing Hr’g, United States v. Bedonie, 30. Id. at 801–02. Jan. 21, 2004, Tr. at 6–7, 13. 31. Id. (citing 18 U.S.C. § 3579(d) (1984)).

29. 768 F.2d 790 (7th Cir.1985). 32. Id. at 808 (Swygert, J., dissenting). U.S. v. BEDONIE 1297 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

Judge Swygert also expressed his concern complicate and prolong some sentencings. that the per se rule ‘‘will essentially repeal Those costs, however, should not be over- restitution for lost income [under the stated. This case can serve as a conve- VWPA] because all calculations of future nient illustration. To determine the lost income can be ‘contested.’ ’’ 33 income of two victims in two separate Fountain has now been effectively over- homicide cases, the court held one eviden- ruled by the MVRA for cases involving tiary hearing of approximately three crimes of violence. But in other cases hours, followed by another hearing of ap- subject to the VWPA, it is potentially per- proximately two-and-a-half hours to hear suasive authority to consider. The Tenth arguments of counsel on the issues in- Circuit does not appear to have discussed volved. These hearings would have been the issue presented in Fountain, leaving considerably shorter with the benefit of a this court to determine in the first instance Tenth Circuit opinion establishing control- whether the Seventh Circuit is correct in ling legal principles in the area. The court holding that the VWPA blocks future lost also was required to spend $1725 to retain income awards in all circumstances. Hav- the services of an expert for both cases. ing carefully reviewed the relevant stat- Weighed against the costs of complicat- utes, the court declines to follow the Sev- ing and prolonging sentencing hearings is enth Circuit’s analysis because it is at odds the fact that many crime victims and their with the controlling statutory language. families will benefit from larger restitution The provision of the VWPA that the awards. The Seventh Circuit’s sweeping Seventh Circuit relied upon provides in rule applies to a wide range of cases, in- full: cluding cases in which a victim has been To the extent that the court determines disabled or even killed by a violent crimi- that the complication and prolongation nal. As suggested by Ms. Johnson’s situa- of the sentencing process resulting from tion, at least some (if not most) of these the fashioning of an order of restitution crime victims may be in desperate finan- under this section outweighs the need to cial circumstances where literally every provide restitution to any victims, the dollar could make a real difference to court may decline to make such an or- them. It makes little sense to give a der.34 wooden reading of the statute that all vic- As the italicized word ‘‘may’’ indicates, the tims—no matter how badly victimized or statute gives the district courts discretion how urgently in need of financial recom- in entering restitution awards. It would pense—will never obtain lost income resti- twist that term beyond recognition to read tution. that discretionary statute as barring dis- This analysis is supported by the plain trict courts from ever entering such orders language of the statute, which mandates in all cases involving issues of lost income. consideration of victims’ individual circum- More important, the Seventh Circuit’s stances. The statute requires the court to analysis seems incomplete; it apparently ‘‘determine[ ]’’ whether the costs of longer considers only the costs of extended resti- hearings ‘‘outweigh the need to provide tution hearings, but not the benefits. No restitution to any victims.’’ The Seventh doubt, determining lost future income will Circuit does not explain how its per se

33. Id. (Swygert, J., dissenting). 34. 18 U.S.C. § 3663(a)(1)(B)(ii) (emphasis added), recodified from 18 U.S.C. § 3579(d) (1985). 1298 317 FEDERAL SUPPLEMENT, 2d SERIES

rule gives effect to the statutory directive decision in 1992, United States v. Grimes, to ‘‘determine’’ crime victims’ needs. In- the Circuit vacated a restitution order be- deed, with the benefit of 20/20 hindsight, it cause of lack of evidence that the ‘‘defen- may be that cases like Fountain triggered dant had the capacity to earn sufficient Congress’ decision to pass the Mandatory income following release that would permit Victims Restitution Act precisely to make [restitution] payments.’’ 37 Under these sure that courts fully considered the vic- cases, it might be argued that, were the tims’ side of the cost-benefit equation. court to proceed under the VWPA rather Accordingly, the court finds Fountain un- than the MVRA, it would need to award a persuasive and refuses to follow it here. smaller sum for restitution in light of de- Furthermore, the court concludes that, fendant Bedonie’s limited ability to pay. were it to proceed under the VWPA, it would have discretion to award future lost The court finds that those earlier Tenth income restitution and that its discretion Circuit decisions are no longer good law. should be exercised to determine the Congress overruled these decisions and amount of such an award. others like them in other circuits 38 when it passed the MVRA. The MVRA not only 3. The Court Would Order Full Resti- added new mandatory restitution provi- tution Under the VWPA. sions for crimes of violence, but also con- If the court were proceeding under the solidated the procedures for determining VWPA rather than the MVRA, there and enforcing restitution awards. The rel- would remain the issue of whether the evant legislative history explains that the court would order the same, full restitution MVRA ‘‘has the further purposes of estab- that it would order under the MVRA. In lishing one set of procedures for the issu- several VWPA cases decided more than a ance of restitution orders in Federal crimi- decade ago, the Tenth Circuit held that nal casesTTTT [T]his legislation is needed ordering indigent defendants to pay full to replace an existing patchwork of differ- restitution was improper. For example, in ent rules governing orders of restitution 1991 in United States v. Rogat, the Circuit under various Federal criminal statutes explained that ‘‘[a]lthough a defendant’s with one consistent procedure.’’ 39 indigency is not a bar to restitution, TTT [t]he possibility of repayment TTT cannot The new consolidated procedures apply be based solely on chance.’’ 35 In the 1992 to both the MVRA and the VWPA.40 One in United States v. McIlvain, the Circuit of these newly consolidated procedures noted the principle that potential for resti- specifically directs that courts must not tution cannot be based on mere chance and consider the financial circumstances of a vacated a restitution order because district defendant in determining restitution: ‘‘In court failed to take into consideration the each order of restitution, the court shall defendant’s ability to pay.36 In a similar order restitution to each victim in the full

35. 924 F.2d 983, 985 (10th Cir.1991), cert. 38. See, e.g., United States v. Remillong, 55 denied, 499 U.S. 982, 111 S.Ct. 1637, 113 F.3d 572 (11th Cir.1995). L.Ed.2d 732 (1991). 39. S.REP. NO. 104–179, at 12 (1996), reprinted 36. 967 F.2d 1479, 1481 (10th Cir.1992). in 1996 U.S.C.C.A.N. 924, 925, quoted in Reano, 298 F.3d at 1212. 37. 967 F.2d 1468, 1473 (10th Cir.1992), cert. denied, 506 U.S. 927, 113 S.Ct. 355, 121 40. 18 U.S.C. § 3663(d); 18 U.S.C. L.Ed.2d 269 (1992). § 3663A(d). U.S. v. BEDONIE 1299 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

amount of each victim’s losses as deter- 1. Lost Income Is Properly Awardable mined by the court and without consider- to Mr. Johnson as the ‘‘Victim’’ of a ation of the economic circumstances of the Homicide. 41 defendant.’’ The procedures then go on Mr. Johnson is the victim of defendant’s to provide that, once full restitution has Bedonie’s crime. The MVRA defines ‘‘vic- been ordered, the economic circumstances tim’’ as: of the defendant are relevant to determin- [A] person directly and proximately ing the subsidiary question of the schedule harmed as a result of the commission of for paying restitution.42 In light of the an offense for which restitution may be new clear congressional directive, the ordered including, in the case of an of- court would proceed in the same fashion fense that involves as an element a under either the MVRA or the VWPA— scheme, conspiracy, or pattern of crimi- first ordering full restitution and then con- nal activity, any person directly harmed sidering the economic circumstances of the by the defendant’s criminal conduct in defendant in arranging a payment sched- the course of the scheme, conspiracy, or ule. pattern. In the case of a victim who is For all these reasons, the court finds under 18 years of age, incompetent, in- that full restitution must be awarded capacitated, or deceased, the legal against both defendants Bedonie and Sera- guardian of the victim or representative wop. of the victim’s estate, another family member, or any other person appointed as suitable by the court, may assume II. Bedonie and Serawop Must Pay the victim’s rights under this section Restitution for the Lost Income of TTTT 44 their Victims. Under this provision, the person killed in a A. The Deceased—Mr. Johnson and homicide case is a victim. Obviously, as Beyonce Serawop—Are Entitled to provided in the first sentence of the defini- Restitution as ‘‘Victims’’ of the tion, someone who is murdered is ‘‘directly Homicide Offenses Against Them. and proximately harmed’’ by the offense. The second sentence of the definition does Having concluded the court must award not alter that conclusion. The second sen- full restitution, the issue then arises as to tence lists certain persons who ‘‘may as- who is the ‘‘victim’’ entitled to restitution. sume the victim’s rights’’ under the MVRA It seems almost self-evident that a person when a victim is ‘‘deceased,’’ including a who is murdered is the victim of a homi- ‘‘representative of the victim’s estate.’’ cide offense.43 But because the issue But these persons do not become the vic- seems to be contested, it may be useful to tim; they merely represent the victim un- explore the issue briefly. der the statute.45

41. 18 U.S.C. § 3664(f)(1)(A) (emphasis add- 44. 18 U.S.C. § 3663A(a)(2) (emphases added). ed); see United States v. Johnson, 183 F.3d 1175, 1179 (10th Cir.1999). 45. See United States v. Pizzichiello, 272 F.3d 1232, 1241 (9th Cir.2001), cert. denied, 537 42. 18 U.S.C. § 3664(f)(2). U.S. 852, 123 S.Ct. 206, 154 L.Ed.2d 84 43. See generally DOUGLAS E. BELOOF, VICTIMS IN (2002). CRIMINAL PROCEDURE 41–44 (1999). 1300 317 FEDERAL SUPPLEMENT, 2d SERIES

[3] This distinction is important be- This payment provision does not define cause defendant Bedonie raises several ar- who is ‘‘the victim,’’ a subject addressed in guments predicated on the assumption the definitional paragraph discussed above. that the victim in her case is Mr. Johnson’s Instead, this provision simply explains to estate rather than Mr. Johnson himself. To whom the defendant is to pay or ‘‘make’’ be sure, there may be a close connection the restitution—to the estate in cases between the estate and the victim. But to where the victim is deceased, as otherwise treat the estate as the victim would contra- the payments might go nowhere. vene the plain language of the statute For all these reasons, Mr. Johnson is which, as just noted, merely allows a ‘‘rep- the victim in Ms. Bedonie’s case. resentative of the estate’’ to ‘‘assume’’ the victim’s rights, not to actually become the 2. The Court Need Not Reach the Issue victim. Moreover, Bedonie’s reading of of Whether Ms. Johnson is Also a the statute assumes that in homicide cases Victim of the Offense. the victim will always be the estate. Such Mr. Johnson’s mother, Ms. Johnson, a reading would give no effect to another may also be a ‘‘victim’’ of defendant Bedo- provision, which allows the court to ap- nie’s crime in her own right. As just point ‘‘any other person’’ found to be ‘‘suit- discussed, the salient provision of the able’’ to assume the victim’s rights. In MVRA defines ‘‘victim’’ as a person ‘‘di- this case, the court will appoint Ms. John- rectly and proximately harmed as a result son—the victim’s mother who allocated el- of the commission of an offense.’’ 47 In oquently at the sentencing hearing—as the this case, Mr. Johnson was obviously di- suitable person to represent Mr. Johnson. rectly and proximately harmed when he That appointment is not conditioned on was killed. But nothing in the MVRA any connection between Ms. Johnson and requires that restitution be limited to a the victim’s estate. Indeed, the court single victim, and Ms. Johnson may well could make such an appointment under the have been directly harmed also. statute if Mr. Johnson had been only inca- Ms. Johnson directly lost financial sup- pacitated rather than killed. port from her son. As she credibly ex- Ms. Bedonie points to one other provi- plained in a letter provided to the court: sion in the statute as suggesting that the I am a single parent. My son Brian victim in her case is Mr. Johnson’s estate, started work right after his graduation not Mr. Johnson himself. The opening to help me out with our financial com- paragraph of the MVRA directs where mitments. With Brian’s help, our family payment of restitution is to be made: financial status was fine. Brian was also Notwithstanding any other provision of a talented artist. With the sale of his law, when sentencing a defendant con- arts, it really helps with the bills. After victed of an offense described in subsec- Brian’s death, my bills started to accu- tion (c), the court shall order, in addition mulate. Even when I got a second job, to, or in the case of a misdemeanor, in it’s still not enoughTTTT addition to or in lieu of, any other penal- I’m getting behind on my bills of 2 to 3 ty authorized by law, that the defendant months. These are my necessities, my make restitution to the victim of the trailer, our water and light bills, food, offense or, if the victim is deceased, to etc. With the stra[in] of my daily sur- the victim’s estate.46 vival, I’m developing health problems. I

46. 18 U.S.C. § 3663A(a)(1) (emphasis added). 47. 18 U.S.C. § 3663A(a)(2). U.S. v. BEDONIE 1301 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

am in need of help. If only I can get my hang on, or to give it time, and things bills up to date and extra cash, then I will get better. But those are just can start off again.48 words. As you go on with your liveli- The Tenth Circuit has held that a financial hood, you try to encourage yourself to loss stemming from a homicide can create continue as before, but it doesn’t work ‘‘victim’’ status under the MVRA. In Unit- that way. Every day you expect your ed States. v. Checora,49 the Tenth Circuit child to walk through the door and tell cited the MVRA’s direct-and-proximate- you about his day, who he met, and who harm definition of ‘‘victim’’ and held a he talked to, what he ate, and what new homicide victim’s sons qualified as victims things he has learned from somebody he under the statute.50 The court explained has met along the wayTTTT How do you that the sons had ‘‘been directly and proxi- deal with the pain of losing your child. mately harmed as a result of their father’s It’s not easyTTTT death because they have lost, among other To this day and forever I know that things, a source of financial support.’’ 51 losing someone you love a lot is hard to Likewise in this case, Ms. Johnson would accept and it comes with a pain that is appear to have directly lost a vital source hard to bear at times. But life goes on. of financial support and therefore might I’ll always miss him and wish I could see qualify as a ‘‘victim’’ under the statute for him again, but as we all know that isn’t that reason alone. possible. So now all I have is just mem- 52 The court, however, does not rest any ories of him. determination that Ms. Johnson is a victim This clear psychological harm to Ms. solely on this monetary ground. As was Johnson would seem to qualify her as a apparent during Ms. Johnson’s allocution, victim under the statute. As two leading the financial loss from the defendant’s experts on restitution have written, ‘‘in crime was only a small part of the harm. cases of murder or manslaughter, direct Much more significant was the emotional injury is experienced by the victim’s fami- trauma inflicted on Ms. Johnson from the ly through loss of a member.’’ 53 More- loss of her son. Ms. Johnson undertook over, the MVRA only requires that a per- the difficult task of explaining to the court son be ‘‘directly and proximately harmed’’ what it was like to lose her son: by an offense. Nothing in the statute People may think and say that this hap- requires that the ‘‘harm’’ be a financial and pened 21 months ago. I should be over physical injury. To the contrary, the term it by now. But to me it seems like ‘‘harm’’ is conventionally defined as em- yesterday. The pain and loss is still in bracing both ‘‘physical and mental dam- my heart. As I am sitting here today, age.’’ 54 Consistent with that understand- my heart is filled with tears for the loss ing, the MVRA recognizes that restitution of my sonTTTT People will tell you to may be appropriately ordered for, among

48. Letter from Ms. Johnson to Whom It May 52. Sentencing Hr’g, United States v. Bedonie, Concern (July 20, 2003) (provided to proba- Jan. 21, 2004, Tr. at 4–5, 13. tion office and counsel during preparation of the presentence report). 53. Charles F. Abel & Frank H. Marsh, PUNISH- MENT AND RESTITUTION: A RESTITUTIONARY AP- 49. 175 F.3d 782 (10th Cir.1999). PROACH TO CRIME AND THE CRIMINAL 161 (1984) (emphasis added). 50. Id. 54. WEBSTER’S THIRD NEW INTERNATIONAL DICTIO- 51. Id. NARY 1034 (1993) (first definition). 1302 317 FEDERAL SUPPLEMENT, 2d SERIES

other things, ‘‘psychiatric[ ] and psycholog- issue, his arguments largely parallel those ical care.’’ 55 To be sure, the statute is of defendant Bedonie and are rejected for limited in that it does not authorize some the same reasons. Beyonce Serawop was open-ended award of restitution for pain ‘‘directly and proximately’’ harmed when and suffering or emotional distress. But her father smashed her head in a fit of the only issue at this juncture is whether rage. Beyonce obviously qualifies as a Ms. Johnson qualifies as a ‘‘victim,’’ not the victim in her own right. To assume her full dimensions of what kind of restitution rights during the proceedings, the court should be paid. Based on the credible finds Beyonce’s mother—Ms. Moya—is a statement given by Ms. Johnson in open suitable representative. Ms. Moya testi- court, it would appear that she has been fied at trial and at sentencing spoke elo- directly and proximately harmed—indeed, quently about the pain of losing her daugh- grievously harmed—by the defendant’s ter. She is the logical representative of homicide that deprived her of her first- her daughter. born son. Nonetheless, the court finds it unneces- B. The MVRA Requires a Lost Income sary to finally determine whether Ms. Award in Homicide Cases. Johnson is a victim under the MVRA. So [4] Having concluded that the MVRA far as the court can tell, such a determination would not change the amount of resti- requires the court to order the defendants tution to be awarded. Ms. Johnson had to pay full restitution and that Mr. John- not alleged any categories of restitution son and Beyonce Serawop are the victims above and beyond those that would be of the defendants’ offenses, the court must awarded to her son. At most, a determi- next determine what is embraced by the nation about her status might have concept of ‘‘full’’ restitution. The court changed the distribution of restitution to concludes that it is required to enter an be awarded. If she is a victim, she might order of restitution covering the lost in- have suffered some lost income by losing a come of the Mr. Johnson and Beyonce source of financial support. But the court Serawop. Indeed, the MVRA requires is already going to make a full award for such an award in all cases in which the lost income to Mr. Johnson, so any award violent death of a victim has lead to lost to Ms. Johnson would have to be subtract- income. ed to avoid double counting. Since Ms. The relevant provisions of the MVRA Johnson will apparently administer Mr. read: Johnson’s estate, any change in distribu- The order of restitution shall require tion from Mr. Johnson to Ms. Johnson that such defendant— would be little more than a bookkeeping change. Accordingly, the court concludes TTT that it need not determine whether Ms. Johnson is a victim in this matter. (2) in the case of an offense resulting in bodily injury to a victim— 3. Lost Income Is Properly Awardable (A) pay an amount equal to the cost to Beyonce Serawop as the ‘‘Victim’’ of necessary medical and related proof a Homicide. fessional services and devices relating Defendant Serawop has also objected to to physical, psychiatric, and psycho- defining Beyonce as a ‘‘victim.’’ On this logical care, including non-medical

55. 18 U.S.C. § 3663A(b)(2)(A). U.S. v. BEDONIE 1303 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

care and treatment rendered in accor- in criminal cases involving a death, defen- dance with a method of healing recog- dant Serawop concludes that the more nized by the law of the place of treat- general lost income provisions of subsec- ment; tion (b)(2) are not applicable in homicide (B) pay an amount equal to the cost cases. of necessary physical and occupational therapy and rehabilitation; and Defendant Serawop’s position contra- (C) reimburse the victim for in- dicts logic, the purposes of the MVRA, and come lost by such victim as a result of the plain language of the statute. To find such offense; the MVRA’s lost income provisions inappli- (3) in the case of an offense resulting in cable in homicide cases would defy logic bodily injury that results in the death of and would lead to the perverse result that the victim, pay an amount equal to the murderers would usually pay markedly cost of necessary funeral and related less restitution than criminals who only services; and assault and injure their victims. Under (4) in any case, reimburse the victim for such a reading, the murderer would pay lost income and necessary child care, only funeral expenses, while the assaulter transportation, and other expenses in- would pay for lost income, a potentially curred during participation in the inves- much larger sum. Such a result would tigation or prosecution of the offense or contradict a core purpose of restitution, attendance at proceedings related to the which is to ‘‘ensure that the offender real- offense.56 izes the damage caused by the offense and Defendant Serawop argues that these pays the debt owed to the victim as well as provisions do not envision lost income to society.’’ 60 awards in homicide cases.57 His reading Moreover, reading the statute to block starts with subsection (b)(2)(C), which pro- lost income awards in homicide cases vides that ‘‘in the case of an offense result- would conflict with the clear intention of ing in bodily injury to a victim ’’ the court shall order restitution to ‘‘reimburse the the MVRA: to force offenders to ‘‘ ‘pay victim for income lost by such victim as a full restitution to the identifiable victims of 61 result of such offense.’’ 58 On the other their crimes.’ ’’ Income is plainly one of hand, subsection (b)(3) provides that ‘‘in the things lost by victims when they are the case of an offense resulting in bodily murdered. Indeed, the legislative history injury that results in the death of the reveals clear congressional concern about victim ’’ the court shall order restitution in the failure of federal courts to order resti- ‘‘an amount equal to the cost of necessary tution in homicide cases. In opening the funeral and related services.’’ 59 Because hearings on the bill that became the subsection (b)(3) explicitly requires the MVRA, Senator Hatch critically observed court to order restitution to cover the cost that judges ordered restitution in ‘‘only of necessary funeral and related services 20.2% of federal criminal cases during fis-

56. 18 U.S.C. § 3663A(b). 59. 18 U.S.C. § 3663A(b)(3) (emphasis added).

57. See Def. Reply Mem. Regarding Future 60. Reano, 298 F.3d at 1212. Lost Income Restitution, Apr. 12, 2004 (Dkt. No. 88–1). 61. Id. at 1211 (quoting S.REP. No. 104–179, at 58. 18 U.S.C. § 3663A(b)(2)(C) (emphasis add- 12 (1996), reprinted in 1996 U.S.C.C.A.N. 924, ed). 925). 1304 317 FEDERAL SUPPLEMENT, 2d SERIES

cal year 1994 TTT [including only] 27.9% of court appointed a guardian to collect and all murders.’’ 62 spend the $5,000 for the two boys whose Such a conclusion would also flout the father had been murdered.66 Thus, Che- plain language of the MVRA. The statute cora holds that lost income is recoverable expressly directs judges to require a con- in a homicide case. victed defendant to pay restitution for in- The Fifth Circuit has also rejected de- come lost ‘‘in the case of an offense result- fendant Serawop’s position. In United 63 ing in bodily injury to a victim.’’ An States v. Razo–Leora,67 the Circuit upheld offense that results in death would plainly a lost income award of $100,000 to a widow be an offense resulting in bodily injury. whose husband was murdered. Apparent- Death is simply the most serious form of ly proceeding under the ‘‘income lost’’ lan- bodily injury and in no way eliminates the guage in the VWPA which is essentially appropriateness of a restitution award. identical to the MVRA,68 the Circuit noted Confirming this reading of the statute is that the victim was in his twenties when he the Tenth Circuit’s decision in United was murdered and might well have earned 64 States v. Checora. In that case, the de- considerably more than that over his life. fendants murdered a man who had two The Circuit approved the lost income sons. This district court ordered the de- award, explaining: fendants to pay $5,000 in restitution to the The $100,000 award to his widow is Utah State Division of Child and Family therefore relatively conservative and as- Services, who had custody of the children. sumes legitimate income by Garcia of The court agreed that the sons were ‘‘vic- only $5000 per year with a work life tims’’ under the MVRA because they had expectancy of only twenty years. Razo– ‘‘lost, among other things, a source of fi- Leora points to no countervailing evi- nancial support.’’ 65 The only way that ‘‘a dence in the record. We conclude that source of financial support’’ can be the the award has adequate support.69 basis for a restitution award in a homicide case is through the lost income provision. The Fifth Circuit also approved a lost To be sure, the Tenth Circuit ultimately income award in United States v. Jack- reversed and remanded that restitution son,70 although the court remanded for award for further consideration, but solely further evidentiary findings. Jackson in- on the ground that there was insufficient volved defendants who kidnaped then mur- evidence in the record to conclude that the dered a victim. The district court ordered state agency was actually the proper restitution to the victim’s estate in the guardian of the child. On remand, this amount of $1,250,000 because of concern

62. Mandatory Victim Restitution: Hearing on 67. 961 F.2d 1140 (5th Cir.1992). S.173 Before the Senate Committee on the Judi- ciary, November 8, 1995 (Statement of Sena- 68. Compare 18 U.S.C. § 3663(b)(2)(c) with 18 tor Orrin Hatch), available at 1995 WL U.S.C. § 3663A(b)(2)(c). 11869323.

63. 18 U.S.C. § 3663A(b)(2). 69. 961 F.2d at 1146.

64. 175 F.3d 782 (10th Cir.1999). 70. 978 F.2d 903 (5th Cir.1992), cert. denied, 508 U.S. 945, 113 S.Ct. 2429, 124 L.Ed.2d 65. Id. at 795. 649 (1993). 66. United States v. Checora, 79 F.Supp.2d 1322 (D.Utah 2000). U.S. v. BEDONIE 1305 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

that the defendants might someday profit defendants here to pay restitution to the from a book about the highly publicized victim for ‘‘income lost by such victim as a case.71 The Fifth Circuit stated that ‘‘the result of such offense.’’ district court has the authority to order the defendants to pay the victims’ estate C. The MVRA Requires an Award for an amount equal to victims’ lost income.’’ 72 Both Past and Future Lost Income. Nevertheless, the court remanded for fur- Defendant Bedonie does not seriously ther proceedings, because the district contest that lost income awards are proper court had not made any factual findings in cases involving crimes of violence. In- concerning the amount of the victim’s loss- stead, her main contention is that the court es; rather than focus on the victim, the cannot order restitution for future lost in- 76 district court based its calculations on the come of a crime victim. Her argument rests on the MVRA’s language allowing a defendants’ prospective income.73 court to order a defendant to ‘‘reimburse A final supporting decision on lost in- the victim for income lost by such victim come comes from the U.S. District Court as a result of such offense.’’ 77 She con- for the Eastern District of New York. In tends that the ‘‘income lost’’ does ‘‘not an arson case, United States v. Ferranti,74 logically apply to income which the victim the court awarded total restitution exceed- may lose in the future, especially in light of ing $1.4 million, including more than the use of the word ‘reimburse,’ which $900,000 based on the future lost earnings implies payment only for expenses already 78 of a firefighter killed putting out the incurred.’’ blaze.75 While creative, defendant Bedonie’s argument is unsound. She seems to draw a In sum, in light of the structure of the distinction between past and future in- MVRA and the supporting case law, the come. Yet, at the conceptual level, there lost income provisions of subsection (b)(2) is ‘‘no difference of principle between past should be read as applying to cases involv- and future earnings, so far as the purposes ing not only injury but also death, in addi- of criminal punishment are concerned.’’ 79 tion to which the funeral expense provi- Moreover, ‘‘lost income’’ is a phrase fre- sions of subsection (b)(3) apply in cases quently used in court opinions around the involving death. Under this interpretation country in tort cases. Plaintiffs frequently of the MVRA, therefore, this court is not recover ‘‘lost income’’ damages, which in- only permitted but required to order the clude future lost income.80 Congress pre-

71. Id. at 914. 77. 18 U.S.C. § 3663A(b)(2)(C) (emphasis added). 72. Id. at 915. 78. Def.’s Mem. in Opp. to Award of Future 73. Id. Lost Income as Restitution at 11, United States v. Bedonie, Mar. 5, 2004 (Dkt. No. 33– 74. 928 F.Supp. 206 (E.D.N.Y.1996). 1).

75. 928 F.Supp. at 224 (Weinstein, J.), aff’d 79. Fountain, 768 F.2d at 801. without discussion of restitution issue sub nom. United States v. Tocco, 135 F.3d 116 80. See, e.g., Tsai v. Chang, 2001 WL 717807, (2nd Cir.1998). at *10 (Tex.App.2001) (upholding damage award for future lost income and rejecting 76. Def.’s Mem. in Opp. to Award of Future claim that such award is ‘‘speculative and Lost Income as Restitution at 11–16, United barred as a matter of law’’); Trifad Entertain- States v. Bedonie, Mar. 5, 2004 (Dkt. No. 33– ment, Inc. v. Anderson, 306 Mont. 499, 36 1). P.3d 363, 370 (2001) (remanding for consid- 1306 317 FEDERAL SUPPLEMENT, 2d SERIES

sumably was aware of this background award lost income from the time of the when it legislated and, accordingly, the crime through sentencing. Any other po- words it chose should be construed in this sition would be nonsensical, as it would light.81 effectively read the lost income restitution Nor does the selection of the word ‘‘re- provision out of the statute. But the net imburse’’ necessarily imply a backward fo- result of this concession is that Bedonie cus. To be sure, one can be ‘‘reimbursed’’ must awkwardly interpret the MVRA as for losses already suffered. But in addi- permitting lost income awards only from tion, one can be ‘‘reimbursed’’ by being the crime through sentencing, but not restored or made whole. Thus, Black’s thereafter. This curious interpretation Law Dictionary defines the verb ‘‘reim- would produce significant variance in resti- burse’’ as ‘‘[t]o pay back, to make restora- tution awards in otherwise identical cases tion, to repay that expended; to indemni- based on such happenstance as the length fy, or to make whole.’’ 82 A victim of a of time to investigate the case, the dili- crime is obviously not ‘‘restored’’ or ‘‘made gence with which it is prosecuted, and whole’’ unless she is put back to the same rapidity with which the court holds the position she was in before the crime. A restitution hearing. The possibility of var- victim of a violent crime who losses her iance would be particularly pronounced in ability to work because of criminal violence homicide cases, where there is no statute 84 suffers losses well into the future. of limitation and where investigation and prosecution can take considerable time.85 If any doubt remained on the issue, In this case, for example, Bedonie appar- Congress has resolved it by using a phrase ently concedes that the court could order that is very much forward looking: Con- restitution for lost income for two years— gress has directed mandatory restitution from the date of the homicide (April 19, for ‘‘income lost by such victim as a result 2002) through the date of this order. of such offense.’’ 83 Income losses that Making restitution awards turn on such ‘‘result’’ from an offense are necessarily fortuitous factors hardly seems to square losses that occur at some future time. It with the congressional intent to make could hardly be otherwise, as crimes do criminals ‘‘ ‘pay full restitution to the iden- not harm victims retroactively but instead tifiable victims of their crimes.’ ’’ 86 Ac- from that time forward. cordingly, the court finds that the plain [5] Defendant Bedonie apparently con- language of the MVRA requires awards of cedes that Congress has directed courts to all lost income resulting from the offense

eration of damages including ‘‘any future lost 83. 18 U.S.C. § 3663A(a)(2)(C) (emphasis add- income and profits’’); Woodger v. Christ ed). Hosp., 364 N.J.Super. 144, 834 A.2d 1047, 1049–50 (2003) (upholding ‘‘future loss of in- 84. See, e.g., Santiago v. Spencer, 346 F.3d 206, come award’’); Johnson v. Lanoix, 847 So.2d 210 (1st Cir.2003). 1283, 1286–1289 (La.App. 5 Cir.2003) (find- 85. See, e.g., United States v. Lee, 108 F.3d ing abuse of discretion by trier of fact in 1370 (2nd Cir.1997) (Table Opinion), avail- failing to award ‘‘special damages of able at 1997 WL 138903, *2 (awarding lost $11,433.00 in income lost’’). income restitution to murder victim for seven- year period between time of murder and sen- 81. See United States v. Meade, 175 F.3d 215, tencing). 218 (1st Cir.1999). 86. Reano, 298 F.3d at 1212 (quoting S.REP. 82. BLACK’S LAW DICTIONARY at 1287 (6th NO. 104–179, at 12 (1996), reprinted in 1996 ed.1990). U.S.C.C.A.N. 924, 925). U.S. v. BEDONIE 1307 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

at the time of sentencing, both losses that provision in the sex offender restitution have occurred in the past and that will statute is ‘‘much broader’’ than the occur in the future. MVRA.90 Of course, since the MVRA was The Tenth Circuit decision in United not at issue in Julian, the Circuit had no States v. Checora87 is consistent with this occasion to discuss the MVRA’s precise analysis. In discussing the $5,000 lost in- parameters. More important, read in con- come award in that case, the Circuit did text, the Circuit’s statement about the sex not appear to find it relevant whether the offender statute being ‘‘broader’’ con- $5,000 was past or future income. Like- cerned the counseling expenses at issue there 91—not the lost income issues at wise implicitly rejecting the argument are stake here. previously-discussed decisions in Razo– Leora, Jackson, or Ferranti, all of which Defendant Bedonie also relies on a case awarded restitution for future lost income. from the Ninth Circuit: United States v. Dayea.92 There, the Ninth Circuit over- Defendant Bedonie does not effectively turned a restitution award made to the distinguish these cases, but relies instead widow of Arizona police officer for the lost on two cases: the Tenth Circuit’s decision salary of her husband under the VWPA. in United States v. Julian and the Ninth The Circuit’s rationale was quite narrow. Circuit’s decision in United States v. Day- The Circuit merely held that the widow ea. Neither case is pertinent to the issues ‘‘did not suffer bodily injury and therefore presented here. was not eligible for [lost income] restitu- In United States v. Julian,88 the Tenth tion’’ in her own right.93 The Circuit did Circuit considered a sex offender’s claim not address the issue presented here— that he should not be required to pay whether a victim who has been injured restitution for the victim’s future counsel- (indeed, killed) can be awarded lost income ing expenses. The district court had or- restitution. Underscoring the limits of its dered such restitution under a special res- holding, the Circuit remanded for further titution statute for sex crimes involving proceedings on restitution issues, explain- children, which provides for mandatory ing: ‘‘Our decision to reverse this particu- restitution of ‘‘the full amount of the vic- lar order does not mean that no restitution tim’s losses,’’ including ‘‘any costs incurred is appropriate in this case. At resentenc- by the victim’’ for ‘‘medical services relating, the court may find it appropriate to ing to physical, psychiatric, or psychologi- order restitution for any victims who have cal case.’’ 89 The Circuit held that the trial suffered losses compensable under court was authorized to award restitution § 3663.’’ 94 Thus, Dayea does not preclude for future counseling expenses, which awarding lost income to a victim of a homi- seemingly undercuts defendant Bedonie’s cide offense. In any event, it is also may argument here. Bedonie, however, seizes be relevant to note that the Ninth Circuit on a statement in the opinion that the analysis seems in some tension with Tenth

87. 175 F.3d 782 (10th Cir.1999). of necessary medical and related professional services’’). 88. 242 F.3d 1245 (10th Cir.2001).

89. Id. at 1246. 92. 73 F.3d 229 (9th Cir.1995).

90. Id. at 1247. 93. 73 F.3d at 231. 91. See id. (contrasting language in sex offender restitution statute with language in the 94. 73 F.3d at 232. MVRA regarding restitution ‘‘equal to the cost 1308 317 FEDERAL SUPPLEMENT, 2d SERIES

Circuit’s analysis in United States v. Che- harmed as the result of the commission of cora, which sanctioned lost income restitu- an offense.’’ 97 Here, it is undisputable tion for two young sons of a homicide that Beyonce Serawop was ‘‘directly’’ victim even though they had not them- harmed when she was killed by defendant selves suffered bodily injury. For all Serawop. Any further requirement of ‘‘di- these reasons, Dayea is not instructive rectness’’ is not in the statute, and the here. court will not engraft such an artificial Defendant Serawop has also objected to limitation. a lost future income award in his case. He Second, defendant Serawop’s argument raises two arguments akin to Bedonie’s: appears to conflate two separate concepts: first, that any lost income for a three- future harm and indirect harm. Defen- month-old child would be speculative; and, dant Serawop seems to contend that be- second, that any lost income would not be cause Beyonce Serawop’s lost income a ‘‘direct harm’’ from the offense. would have occurred about 18 years into The first objection is essentially a factu- the future, it somehow becomes merely al claim that the evidence is insufficient to ‘‘indirect’’ and therefore not awardable. support a lost income award. As ex- This analysis is incorrect. As a clarifying plained below, that objection fails in light illustration, consider a defendant who in of the evidence in this case. 2004 fraudulently destroys a $100,000 fi- The second objection is a legal one, nancial instrument payable to the victim in stemming from the Ninth Circuit’s opinion the year 2022. Assuming that the de- in United States v. Cummings.95 Cum- stroyed instrument is irreplaceable, the mings held that ‘‘there must be a close victim has been directly harmed in the connection between the restitution ordered year 2004, even though payment would not and the injury sustained from the behav- have been received until some time in the ior’’ and that ‘‘a restitution order must be future. To be sure, the loss to the victim based on losses directly resulting from the is likely less than $100,000, as that future defendant’s criminal conduct.’’ 96 Defen- sum must be discounted to its present dant Serawop reads this language as creat- value. But it is impossible to contest the ing some sort of free-standing requirement fact that the victim was directly harmed by of ‘‘direct’’ harm that must be met before the defendant in 2004. Similarly here, the court can order restitution and argues there is no doubt that Beyonce’s ability to that the requirement is not met here. earn future income was destroyed by the Defendant Serawop’s argument is based defendant when he killed her. The only on analysis of a Ninth Circuit opinion that remaining issue is the value of that future is not directly controlling here, and the harm, a point considered below. court finds his argument flawed for several In sum, the language of the MVRA and reasons. First, the only place where the relevant case authority demonstrate that court sees the MVRA imposing any kind of in a case involving a crime of violence, the directness requirement is in its definition court is empowered—indeed, required—to of ‘‘victim.’’ The MVRA defines a ‘‘victim’’ award restitution for lost income, including as ‘‘a person directly and proximately both past and future lost income.

95. 281 F.3d 1046 (9th Cir.2002), cert. denied, 97. 18 U.S.C. § 3663A(a)(2) (emphasis added); 537 U.S. 895, 123 S.Ct. 179, 154 L.Ed.2d 162 see also United States v. Nichols, 169 F.3d (2002). 1255, 1278 (10th Cir.1999)(discussing this provision). 96. Id. at 1052 (emphasis added). U.S. v. BEDONIE 1309 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

D. The MVRA Should be Interpreted struction of a criminal statute must be Broadly as a Remedial Measure guided by the need for fair warning, it is Rather than Narrowly Under the rare that legislative history or statutory Rule Lenity. policies will support a construction of a statute broader than that clearly war- For all the reasons explained above, the ranted by the text’’).99 court finds that there is nothing ambigu- The Court’s statement would appear to ous about the MVRA and that it mandates require application of the rule of lenity to an award of lost future income for both the statutory construction issues here. Mr. Johnson and Beyonce Serawop. The The Tenth Circuit has quoted this passage defendants in both cases, however, argue from Hughey in a 1992 case involving the that the MVRA is ambiguous and that the VWPA, United States v. Diamond,100 and ‘‘rule of lenity’’ requires the court to con- cited it in a 1993 case involving sentencing strue the statute in their favor. In sup- issues, United States v. Wilson.101 port of their argument, both defendants On closer examination, however, the rule point to the Supreme Court’s decision in of lenity issue becomes much more com- Hughey v. United States,98 which held that plex. The Tenth Circuit has squarely held restitution under the VWPA could not ex- that the statute at issue in this case—the tend to uncharged crimes. In the course MVRA—is not a punitive statute. In of reaching that holding, Hughey stated: United States v. Nichols,102 the Circuit faced the issue of whether to apply the Even were the statutory language re- MVRA (adopted in 1996) retroactively to garding the scope of a court’s authority crimes committed by Terry Nichols in to order restitution ambiguous, long- 1995. The Circuit concluded that the Con- standing principles of lenity, which de- stitution’s prohibition of ex post facto laws mand resolution of ambiguities in crimi- did not bar retroactive application of the nal statutes in favor of the defendant, new restitution statute because the statute Simpson v. United States, 435 U.S. 6, was not punitive. The Circuit explained 14–15, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978) that the purpose of restitution ‘‘ ‘is not to (applying rule of lenity to federal statute punish defendants TTT but rather to en- that would enhance penalty), preclude sure that victims, to the greatest extent our resolution of the ambiguity against possible, are made whole for their loss- petitioner on the basis of general decla- es.’ ’’ 103 The Circuit therefore concluded rations of policy in the statute and legis- that the MVRA could apply to Nichols lative history. See Crandon v. United because it did not ‘‘inflict criminal punish- States, 494 U.S. 152, 160, 110 S.Ct. 997, ment’’ upon him and thus was not puni- 108 L.Ed.2d 132 (1990) (‘‘Because con- tive.104

98. 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 103. Id. at 1279 (quoting United States v. Aru- 408 (1990). tunoff, 1 F.3d 1112, 1121 (10th Cir.1993), cert. denied, 510 U.S. 1017, 114 S.Ct. 616, 126 99. Id. at 422. L.Ed.2d 580 (1993)) (citing United States v. 100. 969 F.2d 961, 968 (10th Cir.1992). Diamond, 969 F.2d 961, 968 (10th Cir.1992), and United States v. Rochester, 898 F.2d 971, 101. 10 F.3d 734, 736 (10th Cir.1993), cert. 983 (5th Cir.1990)). denied, 511 U.S. 1057, 114 S.Ct. 1621, 128 L.Ed.2d 347 (1994). 104. Id. at 1279–80; accord United States v. 102. 184 F.3d 1169 (10th Cir.1999). Bach, 172 F.3d 520 (7th Cir.1999), cert. de- 1310 317 FEDERAL SUPPLEMENT, 2d SERIES

[6] Under the holding of Nichols, the Court clarified in a decision decided after rule of lenity would not apply to restitu- Hughey, ‘‘[t]he rule of lenity is premised tion statutes. The core concept behind of on two ideas: First, a fair warning should the rule of lenity is the same as the core be given to the world in language that the idea behind the Ex Post Facto Clause: to common world will understand, of what the protect criminal defendants from misuse law intends to do if a certain line is passed; of state criminal power. If the Ex Post second, legislatures and not courts should Facto clause is inapplicable to restitution define criminal activity.’’ 107 Of course, statutes because they do not inflict punish- neither of those core concepts is implicated ment, the rule of lenity is likewise inappli- here: defendants Bedonie and Serawop cable. had fair warning that involuntary and vol- Given this seeming conflict between Hu- untary manslaughter were crimes before ghey and Nichols, the court believes the they acted. What is then left is a subsid- Tenth Circuit’s analysis in Nichols prevails iary component of the rule of lenity—‘‘that for several reasons. To start with, Hu- the Court will not interpret a federal crim- ghey’s statement about the rule of lenity inal statute so as to increase the penalty was dicta. Hughey’s discussion of the leni- that it places on an individual when such ty issue begins with the clause: ‘‘Even an interpretation can be based on no more were the statutory language regarding the than a guess as to what Congress intend- scope of a court’s authority to order resti- ed.’’ 108 This policy is ‘‘rooted in the in- tution ambiguous, longstanding principles stinctive distaste against men languishing of lenityTTTT’’ 105 This clause signals that in prison unless the lawmaker has clearly the ensuing discussion was not necessary said they should.’’ 109 This policy concern, to the holding, as the opinion had already too, is irrelevant here. The issue in this squarely held that the statutory language case is not whether defendants Bedonie was not ambiguous 106 and ambiguity is a and Serawop will ‘‘languish’’ longer in pris- necessary predicate to applying the rule of on; as the Tenth Circuit made clear in lenity. Nichols, restitution awards do not ‘‘inflict 110 Even though the discussion in Hughey is criminal punishment.’’ Instead, the is- only dicta, the court is obviously reluctant sue here, as in Nichols, is whether victims to ignore guidance from the Supreme of violent crimes are ‘‘to the greatest ex- Court. Nonetheless, the Circuit’s analysis tent possible TTT made whole for their 111 in Nichols is more consistent with a full losses.’’ understanding of restitution and thus Indeed, if anything, there would seem to should be followed here. As the Supreme be more ‘‘instinctive distaste’’ for violent

nied, 528 U.S. 950, 120 S.Ct. 372, 145 108. United States v. Diaz, 989 F.2d 391, 393 L.Ed.2d 290 (1999). (10th Cir.1993) (internal quotations and citations omitted). 105. Hughey, 495 U.S. at 422, 110 S.Ct. 1979 109. United States v. R.L.C., 503 U.S. 291, 305, (emphasis added). 112 S.Ct. 1329, 117 L.Ed.2d 559 (1992) (internal quotation omitted). 106. Id. at 419–20, 110 S.Ct. 1979. 110. Nichols, 169 F.3d at 1279 (quoting United 107. Babbitt v. Sweet Home Chapter of Commu- States v. Hampshire, 95 F.3d 999, 1006 (10th nities for a Great Oregon, 515 U.S. 687, 704 n. Cir.1996), cert. denied, 519 U.S. 1084, 117 18, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) S.Ct. 753, 136 L.Ed.2d 690 (1997)). (internal quotations omitted). 111. Id. (internal quotations omitted). U.S. v. BEDONIE 1311 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

criminals not making their victims whole III. Defendant Bedonie Should Pay than for parsimoniously interpreting resti- Lost Income Restitution of tution statutes. To the extent that any $446,665 and Defendant Serawop rule of construction applies in this case, it Should Pay Lost Income Restitu- would appear to be the rule on remedial tion of $325,751. statutes: ‘‘When Congress uses broad gen- Having determined that lost income (in- eralized language in a remedial statute, cluding future income) is awardable as res- and that language is not contravened by titution, the next issue then becomes authoritative legislative history, a court whether the record evidence regarding should interpret the provision generously Mr. Johnson and Beyonce Serawop pro- so as to effectuate the important congres- vide sufficient evidence to support such an sional goals.’’ 112 The Tenth Circuit ap- award. Of course, the kind of evidence pears to have implicitly taken this ap- that is available on restitution issues will proach in construing at least some aspects of the MVRA. It has, for example, ‘‘liberal- never be ironclad. As the Tenth Circuit ly constru[ed]’’ procedural requirements in has reminded trial courts, ‘‘ ‘[t]he determi- the MVRA to protect victims of crimes.113 nation of an appropriate restitution is by 116 Similarly, other circuits appear to have nature an inexact science.’ ’’ This com- taken approaches to construing the MVRA ment is particularly apt when the issue is that implicitly deviate from the rule of future lost income, as some assumptions lenity.114 about future conditions have to be made. But the uncertainties inherent in making For all these reasons, if the court need- projections provide no reason for declining ed a rule of statutory construction, it would not apply the rule of lenity and to making a restitution award. How to would construe the MVRA broadly as a compensate victims of wrongdoing when remedial statute. But the court need not the evidence is uncertain is a problem that resort to rules of statutory construction judges and juries regularly confront. The where Congress’ mandate is clear. ‘‘Leni- Supreme Court has helpfully summarized ty applies only when the equipoise of com- the relevant principles in a seminal case peting reasons cannot otherwise be re- concerning antitrust damages: solved.’’ 115 For the reasons reviewed [E]ven where the defendant by his own above, the arguments here are not in equi- wrong has prevented a more precise poise. Rather, Congress has plainly man- computation, the jury may not render a dated court to award future lost income in verdict based on speculation or guess- cases of violence, and the court will pro- work. But the jury may make a just ceed to do so. and reasonable estimate of the damage

112. California v. American Stores Co., 495 511 (7th Cir.1986) (holding unequivocally that U.S. 271, 279 n. 4, 110 S.Ct. 1853, 109 provision in the MVRA ought be construed in L.Ed.2d 240 (1990). a fashion that ‘‘protects the victim, not the offender’’) (agreeing with United States v. 113. See Reano, 298 F.3d at 1212 (quoting Keith, 754 F.2d 1388, 1393 (9th Cir.1985)). United States v. Dando, 287 F.3d 1007, 1010 (10th Cir.2002)). 115. Johnson v. United States, 529 U.S. 694, 114. See, e.g., United States v. Zakhary, 357 713, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). F.3d 186 (2nd Cir.2004) (collecting authorities construing provision in the MVRA to 116. United States v. Williams, 292 F.3d 681, ‘‘protect crime victims’’ rather than defen- 688 (10th Cir.2002) (quoting United States v. dants); United States v. House, 808 F.2d 508, Teehee, 893 F.2d 271, 274 (10th Cir.1990)). 1312 317 FEDERAL SUPPLEMENT, 2d SERIES

based on relevant data, and render its Proceeding on this basis, the court con- verdict accordingly. In such circum- cludes that Mr. Johnson and Beyonce Ser- stances juries are allowed to act on awop lost income when they were killed by probable and inferential as well as the defendants and that the amounts of [upon] direct and positive proof. Any that loss can be reasonably calculated. other rule would enable the wrongdoer to profit by his wrongdoing at the ex- A. Expert Testimony on the Amount pense of his victim. It would be an of Lost Income inducement to make wrongdoing so ef- To assist the court in estimating income fective and complete in every case as to that the victims lost, the court appointed a preclude any recovery, by rendering the leading expert—Dr. Paul Randle—to measure of damages uncertain. Failure evaluate the subject. The basis for the to apply it would mean that the more court’s authority to appoint an expert on grievous the wrong done, the less likeli- this subject was reviewed in a previous hood there would be of a recovery.117 opinion in this case.121 Dr. Randle provid- The Court went on to explain that ‘‘the ed several reports to the court containing most elementary conceptions of justice and lost income calculations for Mr. Johnson public policy’’ demand that ‘‘the wrongdoer and Beyonce Serawop. He testified at shall bear the risk of the uncertainty which length at the restitution hearing on March his own wrong has created.’’ 118 Reviewing 25, 2004, and was questioned by the court civil cases from a variety of areas, the and counsel for all parties. The court Court concluded that ‘‘[t]he constant ten- concludes that Dr. Randle’s testimony pro- dency of the courts is to find some way in which damages can be awarded where a vides a reasonable basis to project the wrong has been done. Difficulty of ascer- income lost by Mr. Johnson and Beyonce tainment is no longer confused with right Serawop. of recovery for a proven invasion of the 1. Dr. Randle’s Expect Testimony is plaintiff’s rights.’’ 119 Admissible. If an economic tortfeasor may not profit from his own wrong, the same principle The court first finds that Dr. Randle is a applies, a fortiori, to a murderer or other well qualified expert in the area of lost violent criminal. Indeed, violent criminals income calculations. Among other de- have far less right to complain about un- grees, he has a Ph.D. in Corporate Fi- certainties left in the wake of their terrible nance from the University of Illinois at crimes. In civil tort cases, courts routine- Champaign–Urbana. He was a finance ly award lost income to those with uncer- professor at Utah State University in Lo- tain income streams (including very young gan, Utah, for more than thirty years and children).120 The courts should not shrink has performed literally thousands of lost from the duty to give the same protection income calculations. He has testified in to victims of criminal violence. court more than a hundred times on lost

117. Bigelow v. RKO Radio Pictures, 327 U.S. 119. Id. at 265–66, 66 S.Ct. 574 251, 265, 66 S.Ct. 574, 90 L.Ed. 652 (1946) (internal citations omitted); accord E. J. Dela- 120. See, e.g., note 80. ney Corp. v. Bonne Bell, Inc., 525 F.2d 296, 303 (10th Cir.1975), cert. denied, 425 U.S. 121. See United States v. Serawop, 303 907, 96 S.Ct. 1501, 47 L.Ed.2d 758 (1976). F.Supp.2d 1259 (D.Utah 2004). 118. Bigelow, 327 U.S. at 265, 66 S.Ct. 574. U.S. v. BEDONIE 1313 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

income issues. He has developed comput- It is within this framework that the er programs for calculating economic loss- court finds, considering all of the relevant es and has received many honors. He is, factors, that Dr. Randle’s testimony is in short, one of the leading experts on lost based on sufficient facts, is the product of income in Utah, and possibly the country. reliable methods, and has been reliably Interestingly, this is the first criminal case applied to the facts of this case. None of in which he has been asked to calculate the parties appear to have seriously ar- lost income damages. gued otherwise, and Dr. Randle’s testimony is the type that is routinely admitted in [7] The court further finds that Dr. civil cases where lost income issues Randle’s expert testimony satisfies the ad- arise.125 missibility requirements set by Rule 702 of the Federal Rules of Evidence. While the 2. Lost Income Projections for Mr. rules of evidence do not formally apply at Johnson. sentencing,122 out of an abundance of cau- Turning first to Mr. Johnson, Dr. Ran- tion the court has considered whether his dle made several different income projec- testimony satisfies the Rule’s require- tions. His first scenario assumed that Mr. ments. The Tenth Circuit has explained Johnson would have been employed at his that Rule 702 requires the court to consid- level of education (high school) at age 21 er whether: (1) the testimony is based and for the balance of his expected work- upon sufficient facts or data, (2) the testi- life (about 37 years). Dr. Randle further mony is the product of reliable principles assumed that Mr. Johnson would have and methods, and (3) the witness has ap- earned 58% of the average earnings of a plied the principles and methods reliably high school graduate in the United 123 to the facts of the case. Under Daubert States—58% being the average ratio of 124 v. Merrell Dow Pharmaceuticals, Inc., wages for male Native Americans to wages this court should determine the reliability for white males. Dr. Randle further as- of scientific evidence by considering such sumed that Mr. Johnson’s wages would factors as whether the technique employed have grown at the average rate of wage can be tested and whether it has gained growth for all U.S. workers over the past general acceptance in the relevant scienti- 25 years (4.28%). He then reported the fic community. The Daubert factors are wage loss projections in constant 2002 dol- not a ‘‘checklist’’ or ‘‘test’’ and the over- lars and discounted to present value using arching question is ‘‘reliability.’’ The Su- a 25–year average return on government preme Court’s latter decision in Kumbo treasury bills. This methodology pro- Tire dictates that these factors also apply duced a present value of Mr. Johnson’s to ‘‘specialized’’ knowledge, such as the probable wage loss of $433,562, which Dr. subjects covered in Dr. Randle’s testimo- Randle viewed as the lower bound for lost ny. income.126

122. See FED.R.EVID. 1101(d)(3). (noting plaintiff’s economic expert testified as to ‘‘plaintiff’s lost earnings to date, potential 123. Lantec, Inc. v. Novell, Inc., 306 F.3d loss of earning capacity to age 70, lost fringe 1003, 1025 (10th Cir.2002). benefits, and potential loss of retirement income, reduced to present value’’). 124. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). 126. Report of Dr. Randle at 4, Feb. 25, 2004 125. See, e.g., Blevins v. Cessna Aircraft, Co., (entered as an exhibit during Mar. 25, 2004, 728 F.2d 1576, 1580 n. 3 (10th Cir.1984) hearing). 1314 317 FEDERAL SUPPLEMENT, 2d SERIES

Dr. Randle’s second scenario used all of 3. Lost Income Projections for Bey- the same assumptions except that Mr. once Serawop. Johnson would have achieved one or more To project lost income for Beyonce Sera- years of post-secondary education (as he wop, Dr. Randle proceeded in a similar had planned) and then entered the work- fashion. He first assumed that she would force at age 23. This produced a present have been employed with less than a high value of probable wage loss of $495,598. school education, beginning at age 17, for the balance of her worklife. He also as- When the court received Dr. Randle’s sumed that Beyonce would have earned an report, it was concerned about possible annual wage (in current dollars) equal to constitutional and other problems in rely- 76% of the average earnings for white ing on race and sex assumptions. So that females (76% is the ratio of wages of fe- all possible options would be available for male Native Americans compared to those discussion, the court directed Dr. Randle of white females). Calculating normal to recalculate lost income without regard wage growth and discounting to present to race or sex. Dr. Randle then produced value, he concluded that the value of Bey- a new report using normal wages for all once’s lost wages was $171,366. American workers as the basis for project- Dr. Randle’s second scenario used the ing Mr. Johnson’s lost income. This pro- same assumptions, except that he assumed duced a lost income calculation of $744,442 Beyonce would have achieved a high school (assuming only high school education) or education and entered the labor force at age 18. This scenario produced a value of $850,959 (assuming one or more years of lost wages of $251,148. post-secondary education).127 Dr. Randle’s third scenario used the The court later asked for one last calcu- same assumptions, except that he assumed lation from Dr. Randle. The court re- Beyonce would have obtained some post- ceived the letter from Mr. Johnson’s high secondary education and entered the labor school art teacher reporting he earned force at age 21. This scenario produced a about $1500 per year from art sales during value of lost wages of $273,000. high school. The court then asked Dr. On receipt of this report, the court was Randle to assume Mr. Johnson was no again concerned about the permissibility of more successful than he had been in high race and sex adjustments. Accordingly, school and to use the $1500 figure to pro- the court asked Dr. Randle for additional ject lost income of his expected working calculations that were race- and sex-neu- lifetime. On that highly conservative as- tral. Dr. Randle then produced a new sumption, Dr. Randle projected lost in- report, using wage figures for all Ameri- come of $40,907.128 cans. Since no sex-neutral worklife estimates were available, Dr. Randle simply Based on the testimony of Dr. Randle, used the figures available for males, which the court finds that the range of lost in- are longer than those for females. This come for Mr. Johnson is between $40,907 methodology produced lost wage estimates and $850,959. of $308,633 (employed with less than a

127. Report of Dr. Randle at 1, Feb. 28, 2004 128. Report of Dr. Randle at 1, Mar. 23, 2004 (entered as an exhibit during Mar. 25, 2004, (entered as an exhibit during Mar. 25, 2004 hearing). hearing). U.S. v. BEDONIE 1315 Cite as 317 F.Supp.2d 1285 (D.Utah 2004) high school education), $511,623 (high victims. Recent legal commentary have school education), and $576,106 (some post- raised substantial questions about use of secondary education). race and sex adjustments.129 Yet surpris- ingly the reported cases have almost com- At the restitution hearing at which Dr. pletely neglected the question. A possible Randle testified, an additional method for explanation for this dearth of case law is estimating Beyonce Serawop’s lost income provided by Professor Chamallas, who per- was suggested. The court learned that, as ceptively notes that ‘‘[t]he economists who a soon-to-be enrolled member of the testify as expert witnesses and the lawyers (Northern) Ute Indian Tribe, Beyonce who try personal injury cases are unlikely Serawop would have been entitled to a to be primed to identify race and gender stipend of approximately $100 per month. inequities in a context totally removed This stipend is derived from revenues re- from a civil rights case.’’ 130 In this case, ceived by the Tribe for leasing tribal lands Dr. Randle, who has performed thousands for oil and mineral development and has of lost income analyses, testified that no fluctuated in recent years from around $80 to $100. Dr. Randle calculated that the one had ever asked him to provide race- present value of these payments to Bey- and sex-neutral calculations in wrongful once was between $17,118 (assuming an death cases, although he has used sex- 131 $80 a month stipend) and $21,397 (assum- neutral calculations in pension cases. ing a $100 a month stipend). The basic issue is clearly framed by the Based on the testimony of Dr. Randle, lost income calculations in this case. Us- the court finds that the range of lost in- ing race and sex adjustments to calculate come for Beyonce Serawop is $17,118 to lost income significantly reduces the $576,106. awards that the victims would otherwise receive. Dr. Randle explained that Na- tive–American males earn, on average, B. Race and Sex Adjustments. 58% of wages of white males.132 Making The next issue that arises is whether the the adjustment suggested by this statistic, court should use race- and sex-neutral sta- Dr. Randle calculated lost income for Mr. tistics to calculate the lost income of the Johnson as follows:

129. See Laura Greenberg, Compensating the Cooper–Stephenson, Damages for Loss of Lead Poisoned Child: Proposals for Mitigating Working Capacity for Women, 43 SASK.L.REV. 7 Discriminatory Damage Awards, 28 B.C. (1978–79); ENVTL.AFF.L.REV. 429 (Winter, 2001); Martha Chamallas, The Architecture of Bias: Deep 130. Martha Chamallas, Questioning the Use of Structures in Tort Law, 146 U. PA. EV. L.R 463 Race–Specific and Gender–Specific Economic (January 1998); Sherri R. Lamb, Toward Gen- Data in Tort Litigation: A Constitutional Argu- der–Neutral Data for Adjudicating Lost Future ment, 63 FORDHAM L.REV. 73, 76 (1994). Earning Damages: An Evidentiary Perspective, 72 CHI.-KENT L.REV. 299 (1996); see also Elaine Gibson, The Gendered Wage Dilemma 131. Restitution Hr’g. Mar. 25, 2004, Tr. at 36. in Personal Injury Damages, in TORT THEORY 185, 198 (Ken Cooper–Stephenson & Elaine 132. Report of Dr. Randle in United States v. Gibson eds., 1993); Jamie Cassels, Damages Johnson, Feb. 25, 2004, at 2 (citing Unequal for Lost Earning Capacity; Women and Chil- Treatment on the Job, American Indian Policy dren Last, 71 CAN.B.REV. 447, 448 (1992); Ken Center, www.airpi.org/research/unequal.html). 1316 317 FEDERAL SUPPLEMENT, 2d SERIES

Table I—Brian Johnson Lost Income

High School Some Post–Secondary

No Adjustment $744,442 $850, 959

Race–Adjusted $433,562 $495,598 133

Similarly, for Beyonce Serawop, Dr. Ran- American females earn, on average, 77% of dle essentially reduced Beyonce’s earnings white females.134 Taken together, these by, first, using lower earnings figures for adjustments produced the following fig- females and then decreasing the calcula- ures. tion further to reflect the fact that Native–

Table II—Beyonce Serawop Lost Income

Non H.S. Graduate H.S. Graduate Post–Secondary

No Adjustment $308,633 $511,623 $576,106

Race/Sex–Adjusted $171,366 $251,148 $273,000 135

At first blush, including race and sex the economic data relied upon in Dr. adjustments appears consistent with the Randle’s first report accurately reflects approach encouraged by some treatises, economic reality and the role that race which suggest use of race and sex based and gender play in earnings today. As statistics for calculating lost income when much as we wish that the average earn- a claimant has no established earnings rec- ing potential of all groups could be ord.136 Some commentators have also unequal, the data relied upon by econo- critically accepted race- and sex-based re- mists in calculating lost earnings show ductions in earnings calculation without that, on average, white earn more than careful consideration of their appropriate- Native Americans and men have a long- ness.137 er expected work life than women. In this case, both the government and These are relevant facts in determining the defendants argue that race- and sex- the victims’ actual losses.138 based adjustments are proper. The gov- The defendants take a similar position. ernment’s pleading on this issue asserts For example, defense counsel for Ms. Be- that donie argues that the court should consid-

133. Compare Report of Dr. Randle in United 25, 2004, at 2–3 (use of female and Native– States v. Johnson, Feb. 28, 2004, at 1 (race- American discounts). neutral calculations) with Report of Dr. Ran- dle in United States v. Johnson, Feb. 25, 2004, 136. See, e.g., Paul M. Deutsch & Fredrick A. at 2–3 (use of Native–American discount). Raffa, 8 DAMAGES IN TORT ACTIONS, 110.11(2), at 110–8 (Matthew Bender 1994).

134. Report of Dr. Randle in United States v. 137. See, e.g., Douglas M. Foley, Note, Infants, Serawop, Feb. 25, 2004, at 2 (citing Unequal Lost Earning Capacity, and Statistics: Sound Treatment on the Job, American Indian Policy Methodology or Smoke and Mirrors?, 13 GEO. Center, www.airpi.org/research/unequal.html). MASON U.L.REV. 827, 829 (1991).

135. Compare Report of Dr. Randle in United 138. Government’s Position on Calculation of States v. Serawop, Feb. 28, 2004, at 1 (race- Future Lost Income Restitution at 8, United and sex-neutral calculations) with Report of States v. Serawop (Apr. 12, 2004) (Dkt. No. Dr. Randle in United States v. Serawop, Feb. 89–1). U.S. v. BEDONIE 1317 Cite as 317 F.Supp.2d 1285 (D.Utah 2004) er the fact that 43% of the Navajo popula- due to malpractice when she was born. tion lives below the poverty level and that The District Court for the District of the unemployment rate is 43%.139 She also Rhode Island concluded: urges the court to consider the asserted I cannot accept Dr. Mooney’s reduction fact that the Navajo population has an of Heather’s estimated working life by adjusted death rate from alcoholism eight 40%. The reduction relies solely on a times higher than the national average.140 survey of women’s work histories be- The case law on the subject of such tween 1978 and 1980. As a factual mat- adjustments is limited.141 Some courts ter, I seriously doubt the probative value have simply accepted them without raising of such a statistic with respect to twen- any concerns.142 For example, some stan- ty-first century women’s employment dard jury instructions ask the jury to con- patterns, particularly in light of current, sider, among other factors, the age, physi- ongoing changes in women’s labor force cal, mental characteristics, and sex of the participation rates. As a matter of law, child in determining a lost income award in moreover, I know of no case authority a wrongful death case.143 and none has been cited to me support- In recent years, a few courts have care- ing Dr. Mooney’s 40% reduction. On fully reviewed the question and have ques- the contrary, both federal and state au- tioned the use of such adjustments. The thorities within the jurisdiction counsel 145 leading case on this subject—Reilly v. against such disparate treatment. United States of America144—questioned Upon review, the First Circuit upheld the the use of a reduced worklife table to district court, concluding that such reduc- calculate the lost income for a young wom- tions in awards were ‘‘sexist’’ and ‘‘antiqui- an who had suffered severe brain damage dated.’’ 146

139. Def.’s Reply Mem. Regarding Future Lost 143. See, e.g., Eakelbary, Summit App. No. Income at 11 (citing statistics), United States 9476 (Ohio Ct.App.1980) (sex-based instruc- v. Bedonie (Apr. 14, 2004) (Dkt. No. 53–1). tion)(citing Immel v. Richards, 154 Ohio St. 52, 93 N.E.2d 474, 475 (1950) (listing ‘‘sex’’ 140. Id. as a factor)); see also Franchell, 73 A.D.2d 1, 424 N.Y.S.2d 959, 962 (1980) (listing ‘‘sex’’ as 141. See generally Chamallas, supra, 63 FORD- a factor); King v. Louisville & Nashville R. HAM L.REV. at 97–99 (helpfully summarizing Co., No. 87–199–II, 1987 WL 26384 (Tenn.Ct. the cases). App. Dec.9, 1987) (citing Crowe v. Provost, 52 142. See Frankel v. United States, 321 F.Supp. Tenn.App. 397, 374 S.W.2d 645 (1963) (listing 1331, 1337–8 (E.D.Pa.1970) (reducing lost in- ‘‘sex’’ as a factor)). come award on the assumption female plaintiff would marry, bear children, and leave 144. Reilly v. United States, 665 F.Supp. 976 interrupt her career); aff’d sub nom Frankel (D.R.I.1987), aff’d, 863 F.2d 149 (1st Cir. v. Heym, 466 F.2d 1226 (3rd Cir.1972); Gil- 1988). borges v. Wallace, 153 N.J.Super. 121, 379 A.2d 269 (1977) (implicitly endorsing sex- 145. 665 F.Supp. at 997 (citing Caron v. United based tables); Morrison v. State, 516 P.2d 402 States, 548 F.2d 366, 371 (1st Cir.1976) (In (Alaska 1973) (endorsing data for white Alas- awarding damages for lost earnings, ‘‘we see kan females); Johnson v. Misericordia Com- no reason to distinguish between the sex- munity Hospital, 97 Wis.2d 521, 294 N.W.2d esTTTT’’); Taft v. Cerwonka, 433 A.2d 215, 501, 527 (App.1980) (affirming race-based 219–20 (R.I.1981) (affirming trial court’s un- statistics for lost income calculation); Powell reduced award of 41.2 years’ lost earnings on v. Parker, 62 N.C.App. 465, 303 S.E.2d 225, behalf of female decedent)). 228 (1983) (affirming race-based statistics for lost income calculation). 146. 863 F.2d at 167. 1318 317 FEDERAL SUPPLEMENT, 2d SERIES

Similarly, in Wheeler Tarpeh–Doe v. mined by averaging the earnings of all United States,147 the District Court for the workers, even though historically female District of Columbia was asked to deter- workers have earned somewhat less mine whether the appropriate measure of than male workers. Therefore, just as lost income damages for a bi-racial child we do not under the formula use differ- was the average earnings of African– ent average earnings figures for males American males or white males. The and females, I see no good reason to use court refused to determine which statistic different work-life expectancy figures should predominate; instead, the court based upon gender.151 concluded that damages should be mea- Further suggestion of problems in using sured by the average earning of all college such adjustments comes from the Supreme graduates in the United States without Court’s decision in Arizona Governing 148 regard to sex or race. The court’s stat- Committee for Tax Deferred Annuity and ed goal was to ‘‘eliminate any discriminato- Deferred Compensation Plans, et al., v. ry factors’’ from the recovery awarded to Norris.152 The Court held that an employ- 149 the plaintiff. ee benefit program that paid out lower Along the same lines, in Childers v. Sec- retirement benefits to women because they retary of Health and Human Services,150 lived longer violated Title VII.153 Relying the United States Court of Claims, Office on its prior holding in City of Los Angeles of the Special Masters, determined that a Dept. of Water & Power v. Manhart,154 the worklife expectancy should not be adjusted Court noted that actuarial studies could downward for a female claimant. The ‘‘unquestionably’’ identify real-world differ- court explained its rationale: ences in life expectancy based on race, Does it follow that because some women national origin, or sex.155 Nonetheless, the have historically been able to spend Court held that such studies could not be years out of the workforce, female chil- used as a justification for paying employ- dren in the Program should always get ees of one sex less than another.156 The substantially smaller awards for ‘‘lost Court concluded that even though the ac- earnings’’ than male children? I do not tuarial generalizations about women as a think so. Rather, I note that nowhere class might be true, they could not justify in the statutory formula TTT is there any class-based treatment.157 Both Norris and express, or even implied, distinction be- Manhart involved Title VII, and the Court tween males and females. Indeed, the concluded that Congress clearly intended formula mandates, as discussed above, to prohibit classifications based on race or that the basic earnings figure be deter- sex.158 These cases highlight both Con-

147. 771 F.Supp. 427, 455 (D.D.C.1991), rev’d 153. Id. at 1081–1082, 103 S.Ct. 3492. on other grounds Tarpeh–Doe v. United States, 28 F.3d 120 (D.C.Cir.1994). 154. 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978). 148. Id. at 456. 155. Norris, 463 U.S. at 1083, 103 S.Ct. 3492 (citing Manhart, 435 U.S. at 709, 98 S.Ct. 149. Id. 1370).

150. 1999 WL 218893 (Mar. 26, 1999). 156. Id.

151. Id. (emphasis in original). 157. Id. at 1084, 103 S.Ct. 3492 (internal citations omitted). 152. 463 U.S. 1073, 103 S.Ct. 3492, 77 L.Ed.2d 1236 (1983). 158. Id. U.S. v. BEDONIE 1319 Cite as 317 F.Supp.2d 1285 (D.Utah 2004) gress’ and the Court’s concerns with equal reduction based on race or sex is appropri- protection issues when using class-based ate. Here, the court concludes as a factual assumptions. These cases may also ex- matter that the defendants have simply plain why, as noted earlier, Dr. Randle has failed to prove that a stereotypical dis- been asked to use sex-neutral calculations count is satisfied. Their evidence is too in determining pension annuities. speculative and insufficiently connected in- [8, 9] Reasoning from these cases, come losses of the particular victims in some commentators have suggested that these cases. use of race and sex in economic calcula- One last issue needs to be considered. tions is positively unconstitutional. Per- Both the government and the defendants haps the most thorough exposition of the argue that the court can avoid the need for argument comes from Professor Chamal- making overt racial distinctions in this case las, who contends that the constitutional by relying instead on ‘‘geography.’’ Thus, guarantee of equal protection prohibits defense counsel in the Bedonie case has state action differentiating on race or sex, provided to the court income statistics for including lost income calculations.159 This Apache County, Arizona, near where Mr. constitutional argument is worth serious Johnson lived.162 These statistics purport attention. Nonetheless, it is novel. A to show substantially lower income in time honored-principle of constitutional ad- Apache County than the national average. judication requires ‘‘that court avoid reach- [10] The court does not believe that a ing constitutional questions in advance of the necessity of deciding them.’’ 160 Here, geographical reduction in the award should there is a narrower ground for rejecting be made. It is apparent that here the race and sex distinctions. In framing res- purported geographical information would titution awards, the court certainly oper- serve as nothing other than a proxy for ates within a zone of discretion, because racial distinctions. It appears that the the process is not an ‘‘exact science.’’ 161 overlap between the classifications of per- As a matter of fairness, the court should sons who live in Apache County and Na- exercise its discretion in favor of victims of tive Americans is very high. In various violent crime and against the possible per- contexts, the courts have clearly held that petuation of inappropriate stereotypes. the prohibitions against racial discrimina- This is particularly true in this case, where tion cannot be skirted by the simple expe- the defendants have deprived their victims dient of discriminating on the basis of ge- of the chance to excel in life beyond pre- ography. More than thirty years ago, dicted statistical averages. In fairness to school desegregation cases barred geo- the victims, therefore, the court should not graphically-based school assignments when use race- and sex-neutral data in calculat- the end result was effectively racial classi- ing losses. Moreover, defendants should fications.163 More recently, the Ninth Cir- shoulder the burden of proving that any cuit has held that peremptory challenges

159. See Chamallas, supra, 63 FORDHAM L.REV. 162. Def.’s Reply Mem. Regarding Future Lost at 104. Income at 11 (citing statistics), United States v. Bedonie (Apr. 14, 2004) (Dkt. No. 53–1). 160. Lyng v. Northwest Indian Cemetery Protec- tive Ass’n, 485 U.S. 439, 445, 108 S.Ct. 1319, 163. See, e.g., United States v. Jefferson County 99 L.Ed.2d 534 (1988). Board of Education, 372 F.2d 836, 870 fn. 71 (5th Cir.1966), citing Bush v. Orleans Parish 161. United States v. Williams, 292 F.3d 681, School Board, 308 F.2d 491, 499 (5th Cir. 688 (10th Cir.2002). 1962). 1320 317 FEDERAL SUPPLEMENT, 2d SERIES

purported exercised on the basis of where of Mr. Johnson. Initially, the court con- prospective jurors live may be little more cludes that Mr. Johnson would have than a cover for challenges actually based earned considerable income if he had not on race.164 As the Ninth Circuit has ex- been killed by defendant Bedonie. While plained, ‘‘Residence, as it were, often acts he was not an exceptional student, he was 165 as an ethnic badge.’’ In light of these already showing promise as a talented art- principles, it appears to the court that the ist during high school. According to a parties in this matter want to have geogra- detailed letter from Superintendent Karen phy serve as nothing other than a substi- Lesher, his Graphics Arts teacher, Mr. tute for racial distinctions. For that rea- Johnson was ‘‘an exceptionally talented son alone, the court declines to make any student and was recognized by the school ‘‘geographical’’ reductions. community as a resource for art designs Dr. Randle also provided a separate and for school and community posters, mural, independent reason for declining to make programs, t-shirts, and a variety of publi- geographical adjustments to income as- cations.’’ 167 Mr. Johnson entered three of sessments. He never makes such an ad- his art projects each year in the Heard justment because, as he cogently ex- Museum High School Art Show in Phoe- plained: ‘‘There are no brick walls built nix, Arizona. He usually sold all of his around Cortez, Colorado, or Farmington, projects for more than $100 a piece. Mr. New Mexico. People TTT can still live Johnson also sold art at the annual Red anywhere they want to in the United Mesa Art show and would frequently take States, and had [Mr. Johnson] been suc- orders for art work (including portraits cessful in doing what it’s indicated he and specific subjects) from those in the might have done, then he may well have school community. been living in Phoenix making $150,000 a 166 year.’’ The court agrees with Dr. Ran- During high school, Mr. Johnson was dle that the mobility of workers in the earning approximately $1200 to $1500 an- American economy is an additional reason nually.168 As Dr. Randle calculated, as- for declining to make a geographical ad- suming that Mr. Johnson would have done justment. nothing more than continued to earn $1500 annually for the rest of his life by selling C. Calculating the Lost Income art work on the side, the present value of Awards. his lost earnings would have been no less 1. The Lost Income of Mr. Johnson. $40,907.169 This is a highly conservative In light of the foregoing principles and figure.170 It is virtually certain that Mr. expert testimony, the court will now make Johnson would have earned more than this specific findings regarding the lost income during his lifetime.

164. United States v. Bishop, 959 F.2d 820, 826 168. Id. (9th Cir.1992). 169. Report of Dr. Randle in United States v. 165. Id. at 828. Bedonie, Mar. 23, 2004, at 1. 166. Restitution Hr’g, Mar. 25, 2004, Tr. at 55. 170. See Restitution Hr’g, Mar. 25, 2004, Tr. at 167. Letter from Superintendent Karen C. Le- 88, 2–10. sher to Whom It May Concern (Mar. 10, 2004) (entered as an exhibit pursuant to May 6, 2004 order). U.S. v. BEDONIE 1321 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

The court concludes that Mr. Johnson vious sections, neither side has challenged would have succeeded in his aspirations to the reasonableness of this figure as a race- attend art school and become a profession- neutral figure for future lost income. al artist. His teachers believed that he had the talent to succeed. His mother [11] Dr. Randle’s figure, however, as- presented several portraits sketched by sumes that Mr. Johnson would have been Mr. Johnson during her sentencing allocu- employed constantly. The evidence in the 171 tion that were quite impressive. He record shows that Mr. Johnson’s actual planned to pursue further education as an employment history was irregular. More- artist and had received applications some over, Mr. Johnson’s chosen field of inter- time earlier from several art institutes. est—art—is notorious for irregular hours He had mailed an application to the Insti- and work. Accordingly, the court con- tute of American Indian Arts in 2000, cludes reducing the award by a percentage which was returned to him for additional amount is appropriate to reflect these information. He had several scholarships facts. Dr. Randle testified that percent- to attend arts programs and hoped to at- age reductions are reasonable estimation tend art school, marry, and raise a family. devices.176 There is, of course, no specific Perhaps because his aspirations were in evidence as to the exact percentage dis- art, Mr. Johnson’s employment record in count that might be appropriate. Nor other jobs was sporadic. After graduating have the parties offered any specific sug- from high school in 2001, he worked occa- gestion on these particular points. The sionally at a lumber yard in Cortez, Colo- court therefore must make a reasonable rado, earning $7 to $8 an hour, as well as estimate. The court finds that the evi- at the Ute Mountain Casino in that city. dence suggests that Mr. Johnson would Apparently he was fired from both jobs.172 have been employed 60% of the time and He was seeking work at the time of his thus Dr. Randle’s lost income figure death and had thought about working at should be discounted by 40%. This pro- Checker Auto.173 Contrary to tentative duces a lost income figure of $446,665. suggestions made in a pleading filed by This figure seems conservative because it defense counsel,174 Mr. Johnson had no assumes that Mr. Johnson would not have prior criminal record and no significant obtained any further education, an as- long-term health problems.175 sumption that the court has already reject- In light of all this evidence, a conserva- ed. tive calculation of the future lost income is $744,442. This figure is the lowest race- In sum, the court concludes that neutral figure reported by Dr. Randle. $446,665 is a reasonable and conservative Apart from the arguments rejected in pre- calculation of Mr. Johnson’s lost income.

171. See Transcript of Sentencing, United 174. See Defendant Bedonie’s Motion Request- States v. Bedonie, Jan. 21, 2004. ing That Cecilia Johnson Be Deposed Pursu- ant to Rule 15(a)(1) at 3–4, United States v. 172. See Def. Bedonie’s Reply Mem. Regard- Bedonie (Mar. 9, 2004) (Dkt. No. 37–1). ing Future Lost Income at 8, United States v. 175. Joint Stipulation—Testimony of Cecilia Bedonie (Apr. 14, 2004) (Dkt. No. 53–1). Johnson, United States v. Bedonie at 3–4 (Apr. 13, 2004) (Dkt. No. 51–1). 173. Joint Stipulation—Testimony of Cecilia Johnson, United States v. Bedonie at 2 (Apr. 176. Restitution Hr’g, Mar. 25, 2004, Tr. at 13, 2004) (Dkt. No. 51–1). 27–28. 1322 317 FEDERAL SUPPLEMENT, 2d SERIES

2. The Lost Income of Beyonce Sera- $308,633. This figure assumes that she wop. would have been employed with less than a The facts regarding Beyonce Serawop’s high school education, beginning at age 17, lost income are much more limited. This for the balance of her worklife. Apart is not surprising, since when defendant from the arguments discussed above, nei- Serawop killed the three-month-old baby, ther side has challenged the reasonable- he deprived her of the chance to grow and ness of this figure as a race and sex- succeed in life. Nonetheless, the court can neutral figure for future lost income. This make some findings that are relevant. is a conservative figure, as it assumes that The court finds that Beyonce was a gen- Beyonce would not have finished high erally healthy and happy baby when defen- school; of course, she never had the dant Serawop killed her. Beyonce resided chance to attend high school because of the on the Uintah–Ouray (‘‘Ute’’) Reservation. crime committed by her father. The Beyonce’s mother, who had some difficul- court, accordingly, finds that a conserva- ties of her own, loved her daughter very tive lost income calculation is $308,633, much. Beyonce’s autopsy also revealed no supplemented with the $17,118 stipend she major health problems. would have received from her Tribe, for Defendant Serawop has also argued that total lost income of $325,751. one factor relevant to Beyonce’s lost in- D. No Need to Offset for Consumption. come determination was the fact that she resided in a household where he was abu- The government and defendants Bedo- sive. He argues, for instance, that be- nie and Serawop challenge awarding the cause of his history of domestic violence, victims lost income without deducting for Beyonce was less likely to graduate from consumption. In the parties’ view, award- high or, more generally, to be successful in ing lost income produces a ‘‘windfall’’ by life.177 The court gives no weight to this allowing recovery for income that never argument. Defendant Serawop is hardly would have gone to the victims’ estates; entitled to creative an abusive family situa- instead, it would have been consumed by tion and then argue that, because of this the victims had they lived. The parties abuse, his daughter was less likely to suc- thus urge the court to deduct the victim’s ceed in a life. expected consumption from their projected Calculation of Beyonce’s lost income can income in calculating restitution. begin with the ‘‘floor’’ set by the stipend [13] While this argument may have she received from her Tribe. As Dr. Ran- some merit in other civil contexts, it is not dle calculated, the present value of these persuasive in awarding criminal restitution payments would not have been less than under the MVRA. Modern courts have rec- $17,118. Her lost income would have been ognized two primary methods to calculate at least this amount. future lost income. The first measure is [12] The court, however, believes that what Dr. Randle has called lost ‘‘earning the limited evidence supports the conclu- capacity’’ or ‘‘gross income.’’ This mea- sion that Beyonce would have at least gone sure is simply the projected amount an on to achieve additional earnings along the individual would have earned had he lived lines of Dr. Randle’s most conservative to his normal life expectancy. The second race- and sex-neutral calculation of measure is called ‘‘net income,’’ which

177. Def.’s Objections to Expert’s Submission, 98–1); see also Restitution Hearing, Mar. 25, U.S. v. Serawop, at 2 (Apr. 29, 2004) (Dkt. No. 2004, Tr. at 41. U.S. v. BEDONIE 1323 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

courts have defined as ‘‘gross income’’ mi- proportion of income given to other pur- nus ‘‘personal maintenance expenses’’ or poses (e.g., to support a spouse and chil- ‘‘consumption.’’ 178 In civil cases, courts dren) increases considerably. have used both measures, usually depend- Dr. Randle was able to make some typi- ing on whether the injured person survives cal assumptions and run calculations with an injury. Where an injured person sur- an offset for consumption. In Mr. John- vives the injury, the measure of lost future son’s case, Dr. Randle considered two sce- earnings is generally gross income.179 narios: first, Mr. Johnson never married; Where an injured person dies from the and, second, that Mr. Johnson married at injury, however, the usual measure of lost age 23, had a child at age 25, and another future earnings is net income—that is, child at age 28. Applying the first scenar- gross income less consumption.180 The ra- io to the race-neutral high school graduate tionale for this distinction is that ‘‘a decedent, unlike an injured person, has no lost income calculation reduced the future maintenance costs, and that, there- $744,442 lost income figure by $612,602 for fore, to fail to deduct such costs from his consumption, leaving a prevent value of estimated cross future earnings would re- lost income net of consumption of 183 sult in a windfall to his estate.’’ 181 $131,840. Applying the second, married- with-children scenario to the same figure At the request of the parties, the court produced a consumption offset of $183,404, asked Dr. Randle to generate some figures leaving a prevent value of lost income net that would offset lost income awards by a of consumption of $561,038.184 consumption amount. As he indicated at the hearing, determining a proper con- In Beyonce Serawop’s case, Dr. Randle sumption offset is quite difficult.182 For considered the two same scenarios: first, example, if a person is assumed to stay never married; and, second, married at single his entire life, the proportion of age 23 with two children at ages 25 and 28. income devoted to his consumption may be Applying the first scenario to the most high. On the other hand, if a person is conservative of the race- and sex-neutral assumed to marry and have children, the calculations (no high school graduation) re-

178. See Wallace v. Couch, 642 S.W.2d 141, the time of death through the decedent’s esti- 143 (Tenn.1982) (quoting 76 A.L.R.3d 125, mated lifetime employment period’’); Wagner 131 (1977)). v. Flightcraft, Inc., 31 Wash.App. 558, 643 P.2d 906, 912 (1982) (holding correct mea- 179. See generally, James O. Pearson, Annota- sure of damages in survival action for unmar- tion, Recovery, in Action for Benefit of Dece- ried decedent with no dependents was ‘‘future dent’s Estate in Jurisdiction Which Has Both net earnings,’’ which included ‘‘the present Wrongful Death and Survival Statutes, of Val- value of decedent’s probable future accumula- ue of Earnings Decedent Would Have Made tions’’ minus ‘‘all probable expenditures of After Death, 76 A.L.R.3d 125, 132, 1977 WL the decedent’’). 45705 (1977) (collecting authorities). 181. Pearson, supra, 76 A.L.R.3d 125, 132, 180. See, e.g., Reilly v. United States, 665 1977 WL 45705. F.Supp. 976, 988 (1987) (holding measure of damages in wrongful death action was ‘‘lost future earnings of the decedent’’ minus ‘‘the 182. Restitution Hr’g, Mar. 25, 2004, Tr. at decedent’s estimated living expenses’’); Rob- 46–48. erts v. Dungan, 133 Pa.Cmwlth. 98, 574 A.2d 1193, 1196 (1989) (holding damages in a sur- 183. Report of Dr. Randle in United States v. vival action for the death of a minor daughter Bedonie, Apr. 22, 2004, at 5 (tbl.6). ‘‘include a decedent’s loss of earning capacity or potential, less personal maintenance, from 184. Id. 1324 317 FEDERAL SUPPLEMENT, 2d SERIES

duced the $308,633 lost income figure by struing the statute as covering all income $253,974 for consumption, leaving a pre- is the only way to achieve the aim of vent value of lost income net of consump- Congress to give full restitution to victims. tion of $54,659.185 Applying the second, The lost income provision applies both to married-with-children scenario to the same crimes of violence that leave victims dead figure produce a consumption offset of and to crimes of violence that leave victims $101,258, leaving a prevent value of lost disabled.188 If the court were to read the income net of consumption of $207,375. lost income provision as authorizing only As is apparent from the wide range net income, then disabled victims of vio- generated by these numbers, the assump- lence would be left grossly undercompen- tions one makes about the future of a sated. For example, consider an unmar- victim (e.g., married? had children?) can ried victim who is maimed in a violent make vast differences in the calculations. criminal attack and left unable to work. The burden of proof would be on the party Under a ‘‘net income’’ theory, the court urging a consumption reduction to prove it should not order restitution for the victim’s was justified, and the court finds that such lost income but instead should first sub- proof has not been made here; the as- tract ‘‘consumption’’—that is, such things sumptions are simply too speculative. as food, shelter, clothing, and other necessary expenses. As Dr. Randle’s figures [14] Even if such proof had been suggest in this case, a deduction for con- made, however, the MVRA does not per- sumption might reduce the restitution mit a consumption reduction. While an award by as much as 80% or more of offset for consumption may make sense in victim’s income. More important, this de- some civil contexts, its application in the duction would mean that the victim would criminal context depends on the terms of not receive restitution for the very ex- the criminal restitution statute at issue. penses that were most necessary for her Federal courts have no inherent power to day-to-day living, hardly a result that award restitution in a criminal case, so meets the congressional mandate ‘‘to re- their authority to do so is controlled exclu- store the victim to his or her prior state of sively by the language of the authorizing well-being to the highest degree possi- statute.186 While at least one state court ble.’’ 189 has awarded restitution for net income in a At the hearing on this issue, the govern- criminal case where the victim died, it did ment attempted to argue its way out of so because the controlling state statute this seemingly illogical result by reading explicitly adopted ‘‘the civil measure of the statute one way for disabled victims 187 damages for wrongful death.’’ (they receive gross income) and another This court’s restitution decision is gov- way for murdered victims (they receive erned by the MVRA. The statute man- only net income).190 But the statute draws dates restitution for ‘‘income lost’’—not no such distinction. Instead, it broadly ‘‘net income lost,’’ as the parties restric- commands that the court shall enter an tively read the statute. Moreover, con- order of restitution which shall ‘‘reimburse

185. Report of Dr. Randle in United States v. 188. See Section I.B.3., supra. Bedonie, Apr. 22, 2004, at 5 (tbl.6). 189. United States v. Hill, 798 F.2d 402, 405 186. See United States v. Nichols, 169 F.3d (10th Cir.1986) (citing S.Rep. No. 97–532, 1255, 1278 (10th Cir.1999). 97th Cong., 2d Sess. 30, reprinted in 1982 U.S.C.C.A.N. 2515, 2536). 187. See State v. Mayberry, 415 N.W.2d 644, 645 (Iowa 1987) (quoting Iowa Code 190. Restitution Hr’g, Apr. 15, 2004, Tr. at 22– § 910.1(2)). 23. U.S. v. BEDONIE 1325 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

the victim for income lost by such victim as though the estates may ultimately receive a result of such offense.’’ 191 It would the restitution award, the MVRA directs seem quite odd to read ‘‘income lost’’ as an award based on the victim’s loss, not meaning two very different things, de- the estate’s loss. pending on whether the victim lived or In homicide cases, good reasons support died as the result of the defense. The using the victims’ full loss as the measure oddity only increases when one recognizes restitution. One of the core purposes of that the MVRA also applies to intermedi- restitution is to ‘‘ensure that the offender ate cases, such as ones in which the victim realizes the damage caused by the offense succumbs to injuries inflicted by a violent and pays the debt owed to the victim as criminal after, say, six months. On the well as to society.’’ 193 When a criminal government’s interpretation, the court murders someone, the damage caused by would order restitution for the victim’s the offense to the victim and to society is gross ‘‘income lost’’ for the first six the full amount that the victim was con- months, but then only net ‘‘income lost’’ tributing to society—as reflected in the after that. The meaning of the words victim’s total earnings—not some truncat- ‘‘income lost’’ should not fluctuate so dra- ed amount that subtracts consumption. matically. ‘‘Income lost’’ should be read as meaning either gross income or net in- Attempts to quantify the costs of crime come. As a result, the court might be have used the full value of murder victims’ forced to choose between the net income earnings. The most comprehensive study interpretation—clearly requiring violent by the National Institute of Justice includ- criminals to pay insufficient restitution to ed ‘‘wages’’ lost by murder victims as part 194 disabled victims—or the gross income in- of a reasonable cost estimate. Interest- terpretation—arguably requiring such ingly, the study found that lost productivi- criminals to pay excessive restitution to ty from fatal crimes was, on average, not murder victims. If this were truly the less than $724,000,195 which suggests that choice, the court would err on the side of Dr. Randle’s figures here are generally insuring full restitution for victims and opt conservative. for the higher restitution figure. Further confirming the conclusion that But the court is not persuaded that the MVRA does not envision a consump- awarding gross income produces any kind tion offset are the procedural provisions of excessive restitution. The government’s found in the MVRA—18 U.S.C. § 3664. and defendants’ arguments are predicated Section 3664 spells out in considerable de- on the assumption that the ‘‘victims’’ of tail how the court is to collect information these homicides are the victims’ estates, relevant to the restitution award. The not the people who were killed. The court statute repeatedly directs the court to col- has previously explained why the dece- lect information about the victim’s ‘‘loss- dents themselves—Mr. Johnson and Bey- es.’’ 196 No where does the statute direct once Serawop—are the victims.192 Al- the court to collect information about a

191. 18 U.S.C. § 3663A(b)(2)(C). 195. Id. at 9.

192. See Section II.A, supra. 196. See, e.g., 18 U.S.C. § 3664(a) (presentence 193. Reano, 298 F.3d at 1212. report shall contain ‘‘a complete accounting of the losses to each victim’’); 194. U.S. Dept. of Justice, Nat’l Inst. of Jus- § 3664(d)(2)(A)(vi) (victim may submit affida- tice, VICTIM COSTS AND CONSEQUENCES: A NEW vit regard ‘‘the amount of the victim’s losses LOOK 13 (1996). subject to restitution’’); § 3664(d)(4) (estab- 1326 317 FEDERAL SUPPLEMENT, 2d SERIES

victim’s living expenses—necessary infor- income to the victim—let us say $20,000 mation for calculating consumption. after discounting for consumption—the in- Moreover, the MVRA has provisions surance company will not be reimbursed that appear to conflict with the idea of a for the full amount that it has paid, a consumption offset. For example, the result seemingly at odds with the provi- MVRA directs a court not to consider ‘‘the sion. fact that a victim has received or is enti- A final note is important here. The tled to receive compensation with respect court is troubled by the parties’ descrip- to a loss from insurance or any other tion of an award of gross income restitu- sourceTTTT’’ 197 Instead, when a victim has tion as producing some kind of a ‘‘wind- received compensation from insurance or fall.’’ To the extent the claim is made any other source, ‘‘the court shall order about Mrs. Johnson and Ms. Moya, they that restitution be paid to the person who have lost a son and a daughter from crimi- provided or is obligated to provide the nal violence inflicted by the defendants. compensationTTTT’’ 198 This subrogation Nothing that this court can order the de- provision has been interpreted by several fendants to pay will come anywhere close circuits as blocking an offset against the to covering their losses, much less create a government as a victim even where the ‘‘windfall.’’ Moreover, unlike some civil government has forfeited funds of the de- settings where the estate is entitled to fendant.199 Moreover, the provision re- recovery, here the recovery is for the de- vamps restitution procedures by allowing ceased victims. They will not given an insurance offsets ‘‘to be handled separately excessive award. The parties ask the as potential credits against the defendant’s court to subtract consumption because the restitution obligation—not as reductions in victims would have had living expenses— the amount of that obligation in the first such as housing, clothing, and meals. But instance.’’ 200 the defendants in this case deprived the The subrogation provision appears to be victims of the opportunity to enjoy such designed to reimburse insurance compa- consumption. Because of the defendants’ nies (among others) when they make pay- criminal violence, the victims never got to ments for the costs of violent crimes, in- buy a home, dress in new clothes, or par- cluding payments on policies covering lost take in meals with family and friends. In income. But effective surrogation will not short, the defendants deprived the Mr. be achieved if the court offsets lost income Johnson and Beyonce Serawop of the by consumption. Consider, for example, a chance to enjoy life. It hardly creates a victim of a crime of violence who has insur- ‘‘windfall’’ to require the defendants to pay ance for lost income of $100,000. If the restitution for the consumption that the court awards restitution for only net lost victims never had the chance to savor.

lishing procedures if ‘‘the victims losses are 197. 18 U.S.C. § 3664(f)(1)(B). not ascertainable’’ 10 days before sentencing); § 3664(e) (‘‘burden of demonstrating the 198. 18 U.S.C. § 3664(j)(1). amount of the loss sustained by the victim’’ is on the government); § 3664(f) (‘‘the court 199. See, e.g., United States v. Bright, 353 F.3d shall order restitution to each victim in the 1114, 1122 (9th Cir.2004); United States v. full amount of each victim’s losses ’’); Alalade, 204 F.3d 536, 540 n. 4 (4th Cir. § 3664(h) (establishing procedures if ‘‘more 2000), cert. denied, 530 U.S. 1269, 120 S.Ct. than one defendant has contributed to the loss 2736, 147 L.Ed.2d 997 (2000). of a victim’’) (emphasis added in all of the above). 200. Bright, 353 F.3d at 1121. U.S. v. BEDONIE 1327 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

For all these reasons, the court con- is usually done in the Navajo tradition as cludes that an adjustment for consumption part of the healing process. is not appropriate when determining lost The MVRA provides that the court shall income restitution under the MVRA. In- ordered restitution of ‘‘an amount equal to stead, the court must enter a restitution the cost of necessary funeral and related award for the full lost income the victims services.’’ 203 Defendant Bedonie does not were earning. dispute that burial expenses must be awarded under this provision. She chal- IV. Restitution is also Proper for the lenges, however, the expenses associated Services of a Navajo Medicine with the traditional ceremonies performed Man. by the medicine man. In her view, the [15] The final issue on restitution only expenses awardable under this sec- arises in the Bedonie case: Whether ex- tion are those that ‘‘must be done to every body, in every instance, to prepare [the penses connected with the services of Na- body] for burial and/or cremationTTTT vajo medicine man are awardable funeral [The] services provided by a Native Amer- expenses under the MVRA. At the sen- ican medicine man are nonessential ex- tencing hearing on January 22, 2002, the penses which are done by choice in compli- court find that such expenses were award- ance with that individual’s religious and/or able. This portion of the opinion explains cultural beliefs.’’ 204 the rationale for the court’s order. The court declines to take such a stilted At the sentencing hearing, Ms. Johnson view of the statute. Congress intended to credibly testified regarding her decision to force criminals to ‘‘pay full restitution’’ to use a medicine man to perform services for the identifiable victims of their crimes.205 her deceased son. She explained that she On the defendant’s reading, the only ex- and her children had been raised in the penses awardable would apparently be the ‘‘traditional way,’’ that is, in the Navajo wages of the laborer who digs the grave or tradition. In the aftermath of the death of cremates the body. Commonplace ex- her oldest son (Brian), her younger son penses—such as a casket or urn, flowers, a came to her and asked her make him feel mortuary, and indeed even a funeral— better. Ms. Johnson explained that ‘‘I would seemingly be excluded, as it cannot don’t know how to help you, I am still be said that these services ‘‘must be done hurting.’’ 201 Based on further discussions to every body in every instance.’’ with her son, she decided that the tradi- Congress did not take such a stingy tional ways might help him. Because of approach to compensating families who her concern for her son, she decided to lost a loved one due to a crime violence. seek the services of a medicine man. Ms. Instead, Congress authorized reimburse- Johnson explained that it is connected with ment for the cost of ‘‘funeral’’ services. A the burial service,202 and is something that ‘‘funeral’’ is conventionally understood as

201. Sentencing Hearing, United States v. Be- cluded as Part of Restitution Owed at 3, Unit- donie, Jan. 21, 2004, Tr. at 11. ed States v. Bedonie (Jan. 20, 2004) (Dkt. No. 19–1). 202. Id. at 12.

203. 18 U.S.C. § 3663A(b)(3). 205. Reano, 298 F.3d 1208, 1211 (emphasis added) (quoting S.Rep. No. 104–179, at 12 204. Def.’s Mot. Requesting that Monies Spent (1996), reprinted in 1996 U.S.C.C.A.N. 924, on Native American Ceremonies Not be In- 925). 1328 317 FEDERAL SUPPLEMENT, 2d SERIES

including ‘‘the observances held in honor Cloud,210 the Eighth Circuit upheld a resti- or on behalf of one who has died.’’ 206 tution order under this section for a ‘‘give- Black’s Law Dictionary defines ‘‘funeral away ceremony’’ held by the a Native expenses’’ as encompassing ‘‘[m]oney ex- American father of a girl who was killed.211 pended in procuring the internment, cre- In a brief opinion, the court noted that this mation, or other disposition of a corpse, ceremony ‘‘has its roots in indigenous so- including suitable monument, perpetual cial and religious rituals’’ and that its pur- care of burial lot, and entertainment of pose is ‘‘to honor persons in a traditional those participating in [a] wake.’’ 207 Thus, indigenous manner.’’ 212 According to the a reasonable argument can be made that victim’s father, the ‘‘giveaway ceremony the services of a Native American medi- would be a memorial for his daughter to cine man are compensable as ‘‘funeral’’ show how much she was loved.’’ The expenses, as the services would seem to be Eight Circuit concluded that the expenses part of the observances held in honor of for the giveaway ceremony, which were the deceased victim, akin to a wake for not challenged by the defendant, were which expenses are traditionally award- properly awardable under the MVRA. 208 ed. The court concludes that the $3140 used But Congress did not limit the awarda- to pay a medicine man for traditional cere- ble expenses merely to necessary funeral monies associated with Mr. Johnson’s expenses. Instead, Congress generously death was compensable under the Manda- allowed compensation for ‘‘related ser- tory Victim’s Restitution Act. Like the fa- vices.’’ The term ‘‘related’’ is typically ther in Iron Cloud, Ms. Johnson credibly interpreted broadly.209 The term seems to testified that she followed the traditional envision expenses for things that are not ways and customs. Although defendant actually part of the funeral, but are con- Bedonie countered that these expenses nected to it. The services of a medicine were not ‘‘necessary,’’ she offered no basis man would appear to fit comfortably with- for this conclusion other than the argu- in this concept of ‘‘related services.’’ ment that ‘‘services provided by a Native This analysis is supported by the only American medicine man are nonessential reported decision to have considered the expenses which are done by choice in com- issue of restitution for Native American pliance with [Ms. Johnson’s] religious funeral services. In United States v. Iron and/or cultural beliefs.’’ 213 Because the

206. WEBSTER’S THIRD NEW INTERNATIONAL DICTIO- covers a very broad range of connections, NARY 922 (unabridged 1993) (first definition). both causal and logical’’); Vermont Pure Holdings, Ltd. v. Descartes Systems Group, 207. BLACK’S LAW DICTIONARY 675 (6th ed.1990). Inc., 140 F.Supp.2d 331, 334 (D.Vt.2001) (stating that ‘‘the ordinary meaning of the 208. See, e.g., In re Johnson Estate, 8 Pa. Co. term ‘related to’ [is] clear, unambiguous, and Ct. R. 1, 3.; Oster’s Executer v. Ohlman, 187 quite broad’’). Ky. 341, 219 S.W. 187 (1920).

209. See, e.g., Coregis Ins. Co. v. American 210. United States v. Iron Cloud, 312 F.3d 379, Health Foundation, Inc., 241 F.3d 123, 128 382–83 (8th Cir.2002). (2nd Cir.2001) (holding that ‘‘[t]he term ‘related to’ is typically defined more broadly 211. Id. at 382–83. [than the term arising out of] and is not necessarily tied to the concept of a causal 212. Id. at 383 n. 3. connection’’); Gregory v. Home Ins. Co., 876 F.2d 602, 606 (7th Cir.1989) (stating that ‘‘the 213. Def.’s Mot. Requesting that Monies Spent common understanding of the word ‘related’ on Native American Ceremonies not be In- U.S. v. BEDONIE 1329 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

healing process is so subjective and per- financial obligations, the restitution awards sonal, this argument is not by itself enough are quite large and neither defendant has to refute the court’s factual conclusion any assets from which to pay restitution.216 that, for Ms. Johnson, the expenses were Any payments must therefore come from necessary and related to her son’s funeral. current income. The income for both de- While the court recognizes that restitution fendants in the near future will not be under this provision may be limited by substantial, as they will both be serving principles of reasonableness, this case does prison sentences. not test those limits of reasonableness. For prisoners who have financial obli- Accordingly, Ms. Johnson is also entitled gations, the Bureau of Prisons has in place to restitution for the $3,140 she paid for a sophisticated program for developing an the medicine man’s services. installment payment plan—the Bureau of Prison’s Inmate Financial Responsibility V. The Defendants’ Restitution is Due Program (IFRP). Under the relevant Immediately, Payable on a Sched- Code of Federal Regulations, the staff of ule. the facility in which the inmate is serving [16] The final issue that remains is time will help the inmate develop a plan arranging the details for the payment of for paying all financial obligations, includ- the restitution that has been ordered in ing not only restitution, but also other both cases. It is clear that the defendants obligations such child support and alimo- will not be able to pay the restitution ny.217 Ordinarily, the regular payments awards in full immediately. As a result, will not be less than $25 per quarter. The two interrelated problems arise: First, are payments will be more if the inmate is the restitution awards due immediately in eligible to work in UNICOR.218 Such in- full; and, second, should the court estab- mates will typically be required to allot not lish a payment schedule for the awards.214 less than 50% of their monthly pay toward The government has asked for court to restitution and other payments.219 order immediate payment of the restitu- In light of the Bureau of Prisons’ pro- 215 tion. The defendants have not respond- gram and the uncertainty at this date ed to the immediate payment argument, about whether the defendants will be eligi- but urge the court to impose a modest ble for a paid work assignment, one possi- restitution schedule. ble approach to the restitution awards As a practical matter, the defendants would be to simply declare them due and will need to make installment payments on payable in full immediately. Until recent the restitution awards. While the defen- years, this was the traditional language dants do not have other more important federal courts used in awarding restitu-

cluded as Part of Restitution Owed, United States v. Serawop, Apr. 14, 2004 (Dkt. No. 89– States v. Bedonie, Jan. 20, 2004 (Dkt. No. 19– 1). 1). 216. See 18 U.S.C. § 3664(f)(2) (listing these 214. See generally Royal Furgeson, Jr., Cath- factors as relevant to restitution schedules). arine M. Goodwin, and Stephanie Lynn Zuck- er, The Perplexing Problem with Criminal 217. 28 C.F.R. § 545.11(a). Monetary Penalties in Federal Courts, 19 REV. LITIG. 167 (2000) (helpfully reviewing these 218. The term ‘‘UNICOR’’ is based upon noth- issues). ing specific. It is merely the trade name for Federal Prison Industries, Inc. 215. Government’s Position on Calculation of Future Lost Income Restitution at 11, United 219. 28 C.F.R. § 545.11(b). 1330 317 FEDERAL SUPPLEMENT, 2d SERIES tion.220 This approach had the advantage restitution schedule that the interests of of allowing the Bureau of Prisons to begin justice require.223 Overholt therefore held immediate collection of restitution through that, ‘‘In light of this statutory scheme, we its program and later, after a defendant’s see no room for delegation by the district release from prison, for the probation of- court with respect to payment schedules fice to do the same thing. The Bureau of for restitution.’’ 224 Overholt is in line with Prison and probation office could deter- many, but not all, of the other circuits.225 mine what schedule was appropriate in Overholt involved a district court restitu- light of the defendant’s changing jobs and tion order that provided that the restitu- other financial circumstances, without bur- tion was to ‘‘be paid in full immediately’’ dening the court with monitoring such and that any restitution ‘‘not paid immedi- events. ately’’ was to be paid through the Bureau Whatever the practical advantages of of Prisons’ IFRP and, after release from this approach, it is now a plainly impermis- prison, as a condition of special release. It sible delegation of judicial authority in this is thus arguable that Overholt requires the Circuit. In United States v. Overholt, the court to set a payment schedule and that Tenth Circuit held that establishing a res- the defendants are not obligated to pay titution schedule cannot be delegated to anything over and above that schedule. the Bureau of Prisons or probation offi- Such a reading would significantly hamper cers.221 Overholt recognized the practice crime victims. If a crime victim wishes to advantages of allowing prison and proba- pursue collection of a restitution award, he tion officials to adjust payments schedules might find that he was entitled to nothing in light of changing economic circum- more than nominal payments (which may stances.222 Nonetheless, the MVRA re- have be paid already through the IFRP, peatedly specifies that the court must be for example).226 This result would be con- involved in restitution schedules. For ex- trary, of course, to the fundamental pur- ample, the defendant must notify ‘‘the poses of the MVRA. The Act was designed court’’ of any material change in her eco- to ‘‘force offenders to ‘pay full restitution nomic circumstances, after which ‘‘the to the identifiable victims of their court’’ may make any adjustments in the crimes’ ’’ 227 and to ‘‘streamline’’ provisions

220. See Ferguson, supra, 19 REV. LITIG. at 171 States v. Albro, 32 F.3d 173, 174 (5th Cir. (citing, inter alia, criminal judgment form 1994) (same); United States v. Mohammad, 53 from the Administrative Office of the Courts F.3d 1426, 1438–39 (7th Cir.1995) (same); with this language). United States v. McGlothlin, 249 F.3d 783, 785 (8th Cir.2001) (same); with Weinberger v. 221. 307 F.3d 1231 (10th Cir.2002). United States, 268 F.3d 346, 360 (6th Cir. 222. Id. at 1256 (citing Weinberger v. United 2001) (permitting delegation); United States States, 268 F.3d 346, 362–64 (6th Cir.2001) v. Signori, 844 F.2d 635, 641 (9th Cir.1988) (Cohn, J., concurring)). (same); United States v. Fuentes, 107 F.3d 1515, 1528 n. 25 (11th Cir.1997) (same, but 223. 18 U.S.C. § 3664(k). criticizing binding circuit precedent).

224. 307 F.3d at 1256. 226. See United States v. James, 312 F.Supp.2d 225. Compare United States v. Overholt, 307 802, 806, & n. 8, 2004 WL 764535 at *4 & n. F.3d 1231, 1255–56 (10th Cir.2002) (delega- 8 (E.D.Va.2004) (noting this problem). tion not permitted); United States v. Porter, 41 F.3d 68, 71 (2nd Cir.1994) (same); United 227. United States v. Reano, 298 F.3d 1208, States v. Coates, 178 F.3d 681, 685 (3rd Cir. 1211 (10th Cir.2002) (quoting S.Rep. No. 1999) (same); United States v. Johnson, 48 104–179, at 12 (1996), reprinted in 1996 F.3d 806, 808 (4th Cir.1995) (same); United U.S.C.C.A.N. 924, 925). U.S. v. BEDONIE 1331 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

for collecting restitution.228 Moreover, the the district court had ‘‘effectively dis- MVRA contains an enforcement provision charged its responsibility to set a payment that seems to envision restitution orders schedule’’ with the combined approach.233 that are due in full immediately. Follow- The Seventh Circuit has also reached a ing the entry of judgment, the MVRA similar result. It has upheld restitution allows a crime victim to obtain from the orders requiring immediate payment of clerk of the court an abstract of judgment restitution even where the defendant was for the full amount of the restitution or- of limited financial means. The Circuit 229 der. This provision allows a crime vic- has explained that ‘‘[i]mmediate payment tim to convert immediately the restitution does not mean immediate payment in full; order into a judgment for the full amount rather it means payment to the extent that of the order, apparently without regard to the defendant can make it in good faith, any payment schedule that the court might beginning immediately.’’ 234 set.230 In contrast to the Fourth and Seventh The court believes that Overholt did not Circuits, several other circuits have raised intend to harm victims by precluding a questions about restitution orders payable court from ordering that restitution is due immediately. For instance, the Second in full immediately. Instead, the court Circuit held that an order of immediate understands Overholt to hold that the dis- restitution was erroneous where the defen- trict court must set a restitution schedule dant had no assets.235 In a later opinion, by which the defendant can discharge her the Second Circuit explained that a defen- restitution obligations over time, even dant is obligated to pay the full amount of though the full obligation remains due to restitution when and if he acquires suffi- the victim immediately. cient funds.236 But until he has the funds The Fourth Circuit has reached this con- to do so, a district court should establish a clusion in United States v. Dawkins.231 payment schedule for his term of incarcer- The Fourth Circuit had previously held ation as well as supervised revised.237 Simi- (like the Tenth in Overholt ) that the dis- larly, the Third Circuit has held that a trict court could not delegate establish- restitution order without a payment sched- ment of a payment schedule to other enti- ule was erroneous, overruling the govern- ties.232 Nonetheless, the Fourth Circuit ment’s argument that immediate payment approved a district court’s immediately- was a sufficient schedule under the facts of due-plus-schedule judgment, finding that that case.238 Finally, the Fifth Circuit re-

228. S.REP. NO. 104–179, at 20 (1996), reprinted 234. United States v. McIntosh, 198 F.3d 995, in 1996 U.S.C.C.A.N. 924, 933. 1004 (7th Cir.2000); see also United States v. Trigg, 119 F.3d 493, 499–500 (7th Cir.1997). 229. 18 U.S.C. § 3664(m)(1)(B). 235. United States v. Mortimer, 52 F.3d 429, 230. See United States v. Walker, 353 F.3d 130, 436 (2nd Cir.1995), cert. denied, 516 U.S. 877, 133 (2nd Cir.2003); United States v. James, 116 S.Ct. 208, 133 L.Ed.2d 141 (1995). 312 F.Supp.2d 806, 2004 WL 764535 at * 4 (E.D.Va.2004). 236. United States v. Kinlock, 174 F.3d 297, 301 (2nd Cir.1999). 231. 202 F.3d 711 (4th Cir.2000).

232. United States v. Johnson, 48 F.3d 806, 237. Id. 808 (4th Cir.1995). 238. United States v. Coates, 178 F.3d 681 (3rd 233. Dawkins, 202 F.3d at 716. Cir.1999). 1332 317 FEDERAL SUPPLEMENT, 2d SERIES

versed a district court restitution order provision allowing the restitution award to that required a defendant immediately pay reduced to a civil judgment. At the same $40,000 without findings that the defen- time, the court will not be ordering an dant could make such a payment.239 impossible payment and necessarily forc- It is possible to read these opinions from ing the defendant into non-compliance with the Second, Third, and Fifth Circuit as a court-ordered requirement. conflicting with those from the Fourth and This approach has been adopted in some 240 the Seventh, and perhaps in certain re- states, with Utah serving as a convenient spects they do. For present purposes, example. Utah statutes distinguish be- however, it seems that a reconciling read- tween ‘‘complete restitution’’ and ‘‘court- ing may be available by separating two ordered restitution.’’ 242 The sentencing concepts. Restitution orders can be (1) court will generally award complete resti- ‘‘payable’’ immediately or (2) ‘‘due’’ imme- tution, which becomes a judgment against diately. The holdings of the Second, Third the defendant. At the same time, the and Fifth Circuit’s focus on whether resti- court also identifies court-ordered restitu- tution orders can properly be made pay- tion, which is the restitution that sentenc- able immediately where the defendant lacks sufficient funds to pay. On the other ing court will enforce through its monitor- hand, the Fourth Circuit and Seventh Cir- ing and sanctions. cuit focus on making restitution due imme- [17] In light of all these considerations, diately, which permits collection efforts to defendant Bedonie and Serawop’s restitu- proceed even though the sentencing courts tion awards should be due in full immedi- does not expect the defendant to pay in ately, but payable on a court-established full. schedule. The schedule should reflect the In retrospect, the conflation of these two Bureau of Prison’s IFRP guidelines, as concepts is understandable. The standard this in an appropriate factor for the court criminal judgment form from the Adminis- to consider.243 trative Office appeared to use these two terms interchangeably.241 But the con- Having also considered defendant Bedo- 244 cepts are distinguishable and should be nie’s relevant financial circumstances, distinguished. Nothing in the MVRA pro- the court orders that her restitution is due vides any reason for blocking district in full immediately, but payable on a courts from making restitution due imme- schedule of $25 per quarter or 50% of her diately, even if the defendant is only ex- income (whichever is greater) while in pected by the court to make payments on prison and for sixty days after her release. a more modest schedule. Making the pay- Thereafter, restitution shall be paid at a ment due immediately allows crime victims rate of $100 per month or 20% of her take- (and others benefitted by a restitution home pay (whichever is greater). At the award) to pursue their own enforcement time of the defendant’s release, the proba- efforts, for example by using the MVRA tion officer shall take into consideration

239. United States v. Myers, 198 F.3d 160, 169 242. See UTAH CODE ANN. § 76–3–201(c)(i) & (5th Cir.1999). (ii).

243. See U.S. v. Kinlock, 174 F.3d 297, 300 240. See, e.g., Furgeson, supra, 19 Rev. Litig. (2nd Cir.1999) (citing Mortimer II, 94 F.3d at 173–76. 89, 91 n. 2 (2nd Cir.1996)).

241. See id. at 171 n. 2. 244. 18 U.S.C. § 3664(f)(2). U.S. v. BEDONIE 1333 Cite as 317 F.Supp.2d 1285 (D.Utah 2004)

defendant Bedonie’s economic status as it The court has discretion in determining pertains to her ability to pay the restitu- whether interest should accrue on unpaid tion ordered and shall notify the court of restitution.247 In view of the size of the any changes that may need to be made to restitution awards, the court waives the the payment schedule. The defendant requirement for payment of interest. shall advise the court and the Attorney General, through the probation office, of CONCLUSION any material change in her financial circumstances.245 The defendants in these cases killed two innocent persons, depriving them of With respect to defendant Serawop, his (among many other things) the opportuni- financial circumstances are slightly differ- ty to pursue their careers and to become ent. He currently receives a stipend from economically successful. Under the his tribe of $100 per month. These funds MVRA, it is appropriate that the defen- should go toward restitution and may dants pay sizable restitution awards for serve to illustrate that even apparently the income that the victims lost. Accord- indigent defendants may be able to make ingly, the court orders defendant Bedonie significant restitution payments. Over the to pay restitution for lost income of Mr. course of Serawop’s ten-year prison term, Johnson of $446,665 with additional condi- the cash value of the stipend alone will be tions as explained in this opinion. Defen- more than $10,000. Having considered de- dant Bedonie shall also pay restitution for fendant Serawop’s relevant financial cir- the services of a Navajo medicine man cumstances,246 the court orders that his used by the victim’s family. The court restitution is due in full immediately, but orders defendant Serawop to pay restitu- payable on a schedule of the full sum of his tion for lost income of Beyonce Serawop of stipend (currently $100 per month) plus $325,751 with additional conditions as ex- $25 per quarter or 50% of his income plained in this opinion. An appropriate (whichever is greater) while in prison and amended judgment reflecting these resti- for sixty days after his release. Thereaf- tution awards will be filed today. ter, restitution shall be paid at a rate of SO ORDERED. the full sum his stipend plus 20% of his take-home pay (whichever is greater). At the time of the defendant’s release, the probation officer shall take into consideration the defendant’s economic status as it , pertains to his ability to pay the restitution ordered and shall notify the court of any changes that may need to be made to the payment schedule. The defendant shall advise the court and the Attorney General, through the probation office, of any material change in his financial circumstances.

245. See 18 U.S.C. § 3664(k). 247. 18 U.S.C. § 3612(f)(3).

246. 18 U.S.C. § 3664(f)(2).