Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 16, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 23-7047 & No. 23-7066
WENDY DAWN JOHNSON,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:21-CR-00260-JWD-1) _________________________________
Kristin M. Kimmelman, Assistant Federal Public Defender (Maureen Scott Franco, Federal Public Defender, Western District of Texas, with her on the briefs), San Antonio, Texas, for Defendant-Appellant.
Luke Rizzo Cascio, Assistant United States Attorney (Christopher J. Wilson, United States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff-Appellee. _________________________________
Before MATHESON, KELLY, and MORITZ, Circuit Judges. _________________________________
MORITZ, Circuit Judge. _________________________________
Wendy Johnson pleaded guilty to involuntary manslaughter for causing the
death of Stephanie Heneha-Roubidoux in a drunk-driving accident. The government
sought criminal restitution for Stephanie’s lost income, relying on testimony from its Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 2
expert and from Stephanie’s wife, Kristi Heneha-Roubidoux.1 Johnson argued for
lost-income restitution of zero because, according to the government’s expert,
Stephanie would have personally consumed all her income. The district court
declined to deduct personal consumption from the restitution award. We conclude
that the district court rejected the personal-consumption deduction for a legally
incorrect reason. So although we reject Johnson’s other challenge to the restitution
award, we vacate that award and remand for the district court to reconsider the
personal-consumption deduction. And on remand, the district court should also
reconsider the payment schedule.
Background
Early one morning in March 2021, Johnson was driving on a two-lane, rural
highway in Eufaula, Oklahoma, when she crossed the median and struck Stephanie’s
vehicle head-on. Stephanie died at the scene. Johnson had a blood-alcohol content of
0.229, well above the legal limit of 0.08. See Okla. Stat. tit. 47, § 11-902(A)(1).
Stephanie also was driving drunk; her blood-alcohol content was 0.300.
Johnson pleaded guilty to involuntary manslaughter in Indian country. The
district court sentenced her to 36 months in prison and three years of supervised
release. It declined to impose a fine, finding that Johnson lacked the financial
resources to pay one.
The government requested restitution for Stephanie’s lost income and
1 To avoid confusion, we refer to Stephanie and Kristi by their first names. 2 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 3
submitted a supporting expert report from William Clark. Clark’s report assumed
Stephanie would continue to earn annual income of $11,500 per year—a number he
reached based on information provided by Kristi, who estimated that Stephanie
earned income between $10,000 and $13,000 per year. Based on $11,500 in annual
income, Clark estimated total lost wages of $218,487 to $282,282 over the course of
Stephanie’s life.2 The government later reduced its request to $208,009 because of a
change in interest rates.
At the restitution hearing, Kristi testified that Stephanie generally earned
between $10,000 and $15,000 per year and about $11,500 in 2020. Based on tax
documents, Kristi testified that Stephanie earned some of her income from working at
McDonald’s and some from a tribal stipend. She further explained that Stephanie
earned about $1,000 per month cleaning houses, although Stephanie didn’t report this
income for tax purposes. Kristi also testified that Stephanie contributed to their
household by cooking, cleaning, working in the yard, maintaining the cars, taking
care of pets, and caring for Kristi’s sick brother.
Clark testified next. Relevant here, Clark addressed the defense expert’s
criticism that his estimate of total lost wages of $208,009 over the course of
Stephanie’s life did not apply a personal-consumption deduction. He first explained
2 The report also included an alternative and significantly higher lost-wages estimate of approximately $1,000,000, premised on Stephanie completing an associate degree. The government abandoned any request for this higher amount when it discovered that Stephanie had not completed any coursework toward that degree since 2016. 3 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 4
that a personal-consumption deduction represents the amount of income a victim
would have spent herself, for her own benefit. He further explained that personal
consumption can be deducted from a restitution award because it constitutes funds
that would not have been available to a survivor. Though Clark did not apply the
personal-consumption deduction in arriving at the $208,009 estimate in his report, he
testified that, had she lived, Stephanie would have personally consumed her entire
income. And so Clark testified that if he deducted Stephanie’s personal consumption,
Stephanie’s lost income would be zero.
But Clark went on to explain that “the personal[-]consumption deduction is not
consistent with the economic view.” Supp. R. vol. 3, 47. The economic view,
according to Clark, tries to assign a dollar value to every loss: lost income, lost
household contributions, employer-paid benefits, and so forth. Clark therefore
asserted that, to accurately reflect loss under the economic view, a loss estimate
should include a lost-income calculation, a personal-consumption deduction, and an
estimate of lost household contributions. And the lost household contributions here
were considerable; Clark estimated the present value of Stephanie’s household
contributions at $426,196, far above the amount of her estimated lost wages. So
Clark concluded that under this economic view, if the personal-consumption
deduction erases a victim’s recoverable income but the victim had significant
household contributions, then household contributions should be included in the lost-
income estimate.
Building on Clark’s testimony, the government argued that the district court
4 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 5
should not apply the personal-consumption deduction because the deduction “can
make things unnecessarily complex.” Id. at 84. According to the government, this
complexity arose because the personal-consumption deduction must be offset with
household contributions.
After the evidentiary hearing, the district court concluded that it had sufficient
evidence to fashion a restitution award and that the government had shouldered its
burden to prove the loss amount by a preponderance of the evidence. See 18 U.S.C.
§ 3664(e). The district court found Kristi credible and relied on her estimates of
Stephanie’s annual income. It found Clark’s $208,009 estimate of Stephanie’s lost
wages to be conservative and reasonable “[g]iven the nature of Stephanie’s jobs
during her lifetime and the fact that . . . Clark did not factor in Stephanie’s household
contributions.” Supp. R. vol. 3, 129. The district court acknowledged that the defense
expert had criticized Clark’s lost-income estimate for failing to deduct Stephanie’s
personal consumption. But it nevertheless declined to apply the personal-
consumption deduction, relying on this court’s decision in United States v. Serawop,
505 F.3d 1112 (10th Cir. 2007), and Clark’s testimony. The court explained that it
found “Clark’s testimony on why he declined to deduct for personal consumption in
this particular case on these facts to be credible.” Supp. R. vol. 3, 131. Thus, the
district court ordered restitution of $158,009—the $208,009 the government
requested minus a $50,000 insurance settlement that Kristi had received.3
3 The VWPA provides that “[i]n no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance 5 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 6
The district court further found that Johnson had the financial ability to pay
restitution, based on her education and job history. It ordered the restitution due
immediately, but “[i]f . . . Johnson’s financial condition d[id] not allow for
immediate payment, the restitution is to be paid in monthly installments of $100 or
[ten] percent of . . . Johnson’s monthly income, whichever is greater, beginning 60
days after release.” Id. at 135. Seeking to clarify the payment schedule, defense
counsel asked whether the court was “immediately ordering payments while in
custody” or whether “payments w[ould] commence 60 days after release from
custody.” Id. at 137. The district court repeated the payment-schedule language, and
the government explained that this language is standard. Defense counsel then asked
the court to explicitly allow Johnson to begin her payments after release, and the
district court declined to do so.
Johnson now appeals.
Analysis
Johnson challenges both the restitution award itself and the payment schedule.
We consider each point in turn.
I. Restitution Award
Johnson argues the district court erred when it ordered restitution of $158,009
because it declined to apply a personal-consumption deduction and relied on
or any other source be considered in determining the amount of restitution.” § 3664(f)(1)(B) (emphasis added). But neither party has briefed this issue, so we express no view on the propriety of the $50,000 reduction. 6 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 7
unverified, speculative evidence of Stephanie’s income. We review “the amount of
restitution for an abuse of discretion” and any underlying factual findings for clear
error. United States v. Wilson, 416 F.3d 1164, 1170 (10th Cir. 2005) (quoting United
States v. Quarrell, 310 F.3d 664, 676 (10th Cir. 2002)).
“A district court may order criminal restitution only as authorized by federal
statute.” United States v. Ferdman, 779 F.3d 1129, 1131–32 (10th Cir. 2015). The
parties agree that the Victim and Witness Protection Act (VWPA), 18 U.S.C. § 3663,
provides the necessary statutory authority for restitution here. The VWPA provides
that “in the case of an offense resulting in bodily injury to a victim,” the district court
may order restitution to “reimburse the victim for income lost.” § 3663(b)(2)(C). This
includes future lost income when the victim dies because of the offense. Serawop,
505 F.3d at 1121.4 And if the victim is deceased, the VWPA allows the victim’s
estate to assume the victim’s rights. § 3663(a)(2).
A. Personal-Consumption Deduction
Johnson first argues the district court erroneously declined to apply a personal-
consumption deduction because it did so based on a legally incorrect view that a
4 Serawop interpreted the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A. See 505 F.3d at 1114. The VWPA differs in a few ways from the MVRA, but none of those differences matter here because the lost-income provisions of the VWPA are almost identical to the lost-income provisions of the MVRA. Compare § 3663(b)(2)(C), with § 3663A(b)(2)(C); see also Serawop, 505 F.3d at 1117–18 (noting some differences between VWPA and MVRA). We can therefore rely on MVRA cases in this VWPA case. See United States v. Wilfong, 551 F.3d 1182, 1185 & n.3 (10th Cir. 2008) (applying VWPA cases in MVRA case because acts contained identical relevant language). 7 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 8
personal-consumption deduction requires the court to also account for lost household
contributions. For the reasons explained below, we agree.
We discussed personal-consumption deductions in Serawop. 505 F.3d at 1116.
The victim there was a three-month-old infant and, given the uncertainties inherent in
predicting the infant’s future, the court-appointed expert calculated “wide-ranging”
estimates of the victim’s personal consumption. Id. at 1114–15, 1127. The district
court found the personal-consumption figures too speculative and—after careful
analysis to determine whether rejecting the personal-consumption deduction created a
windfall for the victim’s estate—declined to apply the personal-consumption
deduction. Id. at 1128. We affirmed, concluding the district court had not abused its
discretion. Id. But we suggested that a personal-consumption deduction might be
appropriate if the amount is undisputed, easily determined, or nonspeculative. Id. at
1128 n.6. As an example, we noted that “if the victim was a 65-year[-]old retiree, an
expert might present consumption figures that the district court concludes are not
speculative and that may be used to offset a restitution award.” Id.
Here, the district court recited key portions of Serawop and relied in part on
that case when it declined to apply the personal-consumption deduction. But it then
rejected the personal-consumption deduction without engaging in the analysis we
prescribed in Serawop: assessing whether the personal-consumption offset is
undisputed, easily determined, or nonspeculative and whether rejecting the offset
creates a windfall. See id. Instead, the district court rejected the personal-
consumption offset because it found Clark’s $208,009 estimate reasonable based on
8 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 9
“the nature of Stephanie’s jobs during her lifetime and the fact that . . . Clark did not
factor in Stephanie’s household contributions.” Supp. R. vol. 3, 129. Thus, the
district court impliedly held that it could not apply the personal-consumption
deduction without also considering Stephanie’s household contributions. Indeed, this
is the argument the government made when it urged the district court to reject the
personal-consumption deduction.
But this is a faulty premise: household contributions do not fall within “lost
income” under the VWPA. The VWPA allows victims and their estates to recover for
the victim’s “income lost.” § 3663(b)(2)(C). We have explained that “income lost”
means “lost earnings” or “‘[w]ages, salary, or other income that a person could have
earned if he or she had not . . . died.’” Serawop, 505 F.3d at 1121 (quoting Lost
Earnings, Black’s Law Dictionary (8th ed. 2004)). Because no one paid Stephanie for
her household contributions, they do not qualify as lost income. Additionally, the
VWPA only allows victims of bodily injury to recover their lost income, but it’s
Kristi who lost the value of the household contributions, not Stephanie. To be sure, as
the government emphasizes, Stephanie’s household contributions had economic value
and the loss of those contributions may qualify as economic loss, broadly speaking.
But the VWPA doesn’t provide restitution for “economic loss”; it authorizes only
“reimburse[ment of] the victim for income lost.” § 3663(b)(2)(C). The district court
thus erred when it rejected the personal-consumption deduction on the grounds that
the deduction was not accompanied by a consideration of household contributions—
household contributions cannot be part of the lost-income calculation under the
9 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 10
VWPA.5 See United States v. Geddes, 71 F.4th 1206, 1214 (10th Cir. 2023) (“An
error of law is per se an abuse of discretion.” (quoting United States v. Ellis, 23 F.4th
1228, 1238 (10th Cir. 2022))).
On remand, the district court should conduct the analysis that Serawop
requires: whether the personal-consumption deduction is undisputed, easily
determined, or nonspeculative and whether declining to apply it creates a windfall.
See 505 F.3d at 1124, 1128 n.6. Although Johnson asks us to go further and hold that
the district court should have applied a personal-consumption deduction, we decline
to do so at this point because the reliability of Clark’s personal-consumption figure is
a question for the district court (as is the windfall inquiry). So we vacate the
restitution order for the district court to consider, on remand, whether to apply a
personal-consumption deduction—without improperly factoring household
contributions into the analysis.
B. Speculative Evidence of Income
Johnson’s second challenge to the restitution amount is that the district court
erred in relying on speculative estimates of Stephanie’s earnings. As we’ve just
discussed, “[a]ny award of future lost income must not be predicated on speculation.”
Id. at 1123 (emphasis omitted) (quoting United States v. Cienfuegos, 462 F.3d 1160,
5 Clark’s confusing testimony did not help matters. He testified that, in an economic-loss case, he would include both personal consumption and household services. But his testimony about economic loss in wrongful-death cases does not map cleanly onto this criminal-restitution case arising under the VWPA, which authorizes recovery for “income lost,” not economic loss. § 3663(b)(2)(C). 10 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 11
1168 (9th Cir. 2006)). That is, a restitution award must “be based on actual loss.” Id.
(emphasis added) (quoting Quarrell, 310 F.3d at 678). This is so because “the
purpose of restitution ‘is not to punish defendants or to provide a windfall for crime
victims but rather to ensure that victims, to the greatest extent possible, are made
whole for their losses.’” Id. at 1124 (quoting United States v. Hudson, 483 F.3d 707,
710 (10th Cir. 2007)).
Johnson first asserts that because Kristi was not a credible witness, the district
court erred in accepting her testimony about Stephanie’s earned income. We review a
district court’s credibility determinations for clear error, and we do not disturb those
determinations unless the “testimony is . . . unbelievable on its face.” United States v.
Hoyle, 751 F.3d 1167, 1175 (10th Cir. 2014) (quoting United States v. Virgen-
Chavarin, 350 F.3d 1122, 1134 (10th Cir. 2003)). Here, the district court credited
Kristi’s testimony about Stephanie’s income based on Kristi’s demeanor at the
hearing and Kristi’s 15-year relationship with Stephanie. Given the length of their
relationship, it is far from unbelievable that Kristi personally observed Stephanie’s
finances. And although Johnson paints Kristi as untrustworthy based on Kristi’s
belief that Stephanie would have earned an associate degree—a potentially
unfounded belief, given that Stephanie had taken no classes since 2016—we agree
with the government that Kristi’s optimism about her wife’s future is not
unbelievable on its face. We see no reason to disturb the district court’s credibility
finding and subsequent reliance on Kristi’s income estimates.
Next, Johnson asserts that because Kristi failed to support her estimates of
11 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 12
Stephanie’s cash income with documents or any other form of corroboration, the
district court based its assessment of Stephanie’s yearly income on speculation. But
Johnson cites no authority for her view that additional evidence or corroboration was
required. Moreover, the district court acknowledged that although additional
documentation of Stephanie’s wages would have been helpful, certain service-
industry workers (like Stephanie) don’t always receive wage documentation. Under
these circumstances, we conclude the district court didn’t err in finding that the
government had presented nonspeculative evidence of Stephanie’s lost income.
II. Payment Schedule
Johnson next argues that the district court failed to set a reasonable payment
schedule. We review district-court orders defining the method of paying restitution
for abuse of discretion. See Wilson, 416 F.3d at 1170.
The VWPA requires the district court to set a manner and schedule for
restitution payment based on a defendant’s financial situation. § 3664(f)(2). The
district court may order “a single, lump-sum payment[ or] partial payments at
specified intervals.” § 3664(f)(3)(A). Here, despite having found that Johnson did not
have the ability to pay a fine, the district court ordered $158,009 in restitution due
and payable immediately. The district court also set up a payment schedule providing
that “[i]f [Johnson’s] financial condition does not allow for immediate payment of
the restitution, [she] shall make monthly installments of not less than $100 or [ten
percent] of [her] monthly income, whichever is greater, beginning [60] days from
[her] release from custody.” Supp. R. vol. 2, 70.
12 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 13
The district court’s order is less than pellucid, and the government’s
suggestion that this is standard language doesn’t resolve this lack of clarity. Because
we vacate the restitution order, we need not decide whether the court erred. On
remand, we urge the court to carefully consider its obligation to “specify in the
restitution order the manner in which, and the schedule according to which, the
restitution is to be paid.” § 3664(f)(2).
III. Sealing
As a final matter, we address the sealing of Supplemental Record Volume II.
Courts “recognize a general right to inspect and copy public records and documents,
including judicial records and documents.” Nixon v. Warner Commc’ns., Inc., 435
U.S. 589, 597 (1978) (footnote omitted). That is why we apply “a ‘strong
presumption in favor of public access.’” United States v. Pickard, 733 F.3d 1297,
1302 (10th Cir. 2013) (quoting Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir.
2007)). Parties may rebut this presumption by demonstrating that “countervailing
interests heavily outweigh the public interests in access.” Mann, 477 F.3d at 1149
(quoting Rushford v. New Yorker Mag., Inc., 846 F.2d 249, 253 (4th Cir. 1988)).
After the district court transmitted this volume under seal, we sua sponte
directed the parties to address whether it needs to remain sealed in its entirety. The
parties have filed a joint response and agree that pages 1 through 72 need not remain
sealed and propose redacting them instead. First, the parties propose redacting the
victim’s name and the payee’s name—that is, Stephanie’s name and Kristi’s name—
within these pages. But they do not provide any countervailing interest that would
13 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 14
justify redacting these names. Nor could they; these names appear repeatedly in the
publicly filed briefs. We therefore reject the parties’ request to redact this
information.
Next, the parties propose redacting information about Stephanie’s date of
death, cemetery, and funeral home, as well as Kristi’s address. We agree that this
information is private and not of public concern. We thus grant the parties’ request to
redact these details.
Last, the parties jointly propose that the district court’s statement of reasons,
which appears at pages 73 through 76, should remain sealed. This document is not for
public disclosure, so we grant the parties’ request to keep these pages sealed. See
10th Cir. R. 11.3(C).
Conclusion
We reject Johnson’s argument that the district court relied on speculative
evidence of Stephanie’s income. But the district court should not have rejected the
personal-consumption deduction based on the legally erroneous belief that household
contributions must be included in a lost-income calculation that also deducts for
personal consumption. We therefore vacate the restitution award and remand for the
district court to reconsider whether to deduct Stephanie’s personal consumption from
the restitution award. On remand, the district court should also reconsider its payment
schedule. And as a final matter, we grant the parties’ request to redact information
about Stephanie’s date of death, cemetery, and funeral home, as well as Kristi’s
address, from Supplemental Record Volume II and to keep the district court’s
14 Appellate Case: 23-7047 Document: 83-1 Date Filed: 01/16/2025 Page: 15
statement of reasons entirely under seal. Within 7 days, the parties shall file a
redacted version of Supplemental Record Volume II consistent with this Opinion.