[00:00:02] Speaker 01:
All right, our next case is United States versus Johnson, number 23-7047 and 23-7066.

[00:00:15] Speaker 00:
Counsel, you may proceed.

[00:00:20] Speaker 00:
Thank you, Your Honor.

[00:00:21] Speaker 00:
Good morning.

[00:00:22] Speaker 00:
May it please the court, Kristen Kimmelman for Wendy Don Johnson.

[00:00:26] Speaker 00:
I'll try to reserve a couple minutes for rebuttal time.

[00:00:29] Speaker 00:
Ms.

[00:00:30] Speaker 00:
Johnson challenges the restitution order on three separate grounds.

[00:00:34] Speaker 00:
I'll primarily address the first ground regarding the district court's methodology for calculating the lost income.

[00:00:42] Speaker 00:
And so the district court used the lost income, which is authorized by statute, reimbursed victim for income lost by such victim as a result of the offense.

[00:00:53] Speaker 00:
Defendant objected to that calculation, not including an estimate for the personal consumption.

[00:00:59] Speaker 00:
which this court recognized in Sarawap, can be considered as long as it is not too speculative.

[00:01:06] Speaker 00:
In response, the government presented evidence that there was a non-speculative estimate of that personal consumption, and that in this case, it was actually greater than the projected income lost.

[00:01:19] Speaker 00:
But the government's experts said that personal consumption should be counterbalanced by the household contributions

[00:01:29] Speaker 00:
that the victim had to her spouse, cleaning, taking care of pets, running errands, whatnot, which the experts said have economic value.

[00:01:40] Speaker 00:
And while they might have some economic value, the restitution statute is different than wrongful death damages or other civil lawsuits where this expert might have testified.

[00:01:50] Speaker 00:
And it's rather narrow and specific.

[00:01:53] Speaker 00:
Again, it was just that reimbursement for the victims

[00:01:57] Speaker 00:
lost income.

[00:01:58] Speaker 01:
Let me ask you about the statute.

[00:02:02] Speaker 01:
Does it provide any guidance, the statute itself, on whether courts may offset lost income with personal consumption?

[00:02:11] Speaker 00:
So the statutory language does not say that, but it's similar to at the beginning of the statute where it says the victim can be reimbursed for loss.

[00:02:21] Speaker 00:
This court has interpreted that to be the actual loss.

[00:02:25] Speaker 00:
And for example, when

[00:02:27] Speaker 00:
The cell phones were stolen, and I think it was Ferdman or Hudson.

[00:02:31] Speaker 00:
The actual loss to the retailer wasn't the retail value of those stolen cell phones.

[00:02:39] Speaker 00:
It's going to be the net lost profits.

[00:02:42] Speaker 00:
And so we're not looking at the greater number.

[00:02:45] Speaker 00:
We're looking at what was actually lost by the person.

[00:02:48] Speaker 01:
The statute says income lost, not net income.

[00:02:55] Speaker 00:
And that was the argument that the district court in the case that led to Sarawap had stated.

[00:03:01] Speaker 00:
And this court, albeit in dicta, says that we don't agree with that statement.

[00:03:07] Speaker 00:
Personal consumption is something that can be considered.

[00:03:11] Speaker 00:
And the court even gave an example, the example being if there is an expert that could give a non-speculative consumption figure for, say, a 65-year-old

[00:03:23] Speaker 00:
retiree victim, then that is something that can be considered.

[00:03:27] Speaker 00:
And the Ninth Circuit, in that unpublished case Arthur that's cited in the brief, went along with that reasoning in Sarawap, and actually the government agreed in its brief in Arthur that the district court in that case had erred by not considering personal consumption.

[00:03:43] Speaker 00:
In that case, there had been no evidence, so it was remanded

[00:03:47] Speaker 00:
for the district court to consider what the right number would be.

[00:03:52] Speaker 00:
And in the end, the court imposed a personal consumption reduction for that restitution.

[00:04:00] Speaker 04:
Sarah doesn't quite answer our question, though, does it?

[00:04:03] Speaker 04:
You just referred to the example that the court gave about when personal consumption might be

[00:04:13] Speaker 04:
relevant because it isn't speculative.

[00:04:16] Speaker 04:
And that was the 65-year-old retiree.

[00:04:19] Speaker 04:
And maybe you could speculate about what their consumption might be, because perhaps they kind of know what their life has been and what it's going to be, what they might consume.

[00:04:29] Speaker 04:
But what the court didn't say is, when would it be an abuse of discretion not to consider it?

[00:04:38] Speaker 00:
Correct.

[00:04:39] Speaker 04:
Or whether it's OK not to consider it all,

[00:04:43] Speaker 04:
or whatever reason.

[00:04:44] Speaker 00:
Right.

[00:04:45] Speaker 00:
Some things we know from Sarawak and the court's other restitution cases, though, is that the focus of restitution is on actual loss and in making the victim whole and to avoid a windfall.

[00:04:56] Speaker 00:
So I think in the circumstance that we have here, where at least the evidence that was presented by the government is that there is actually no lost income if you account for personal consumption, results in a windfall of $200,000.

[00:05:12] Speaker 00:
more thousand dollars of restitution to the victim.

[00:05:16] Speaker 00:
And I would say it makes sense, because we know actual loss is the metric of what we're supposed to try to reach, that if a victim does not die from an offense, they're still having those personal consumption expenses throughout their life.

[00:05:32] Speaker 00:
They just aren't working maybe because of the offense, so they get reimbursed for income, but there is no personal consumption reduction there.

[00:05:39] Speaker 00:
But if the victim is deceased,

[00:05:42] Speaker 00:
They're not earning that income, but they also aren't incurring those personal consumption costs.

[00:05:49] Speaker 00:
And so it makes sense for that to be a factor that's considered.

[00:05:54] Speaker 00:
In Sarawap, it was speculative because it was an infant without enough guidance of what choices to put into that economic model of what is the projected personal income to be.

[00:06:07] Speaker 00:
Here, I think we have a 30-year-old victim, so there's some track record.

[00:06:11] Speaker 00:
And I think the expert's calculation was based on a two and a half year analysis from the time of her demise to that restitution hearing.

[00:06:22] Speaker 00:
And he applied a personal consumption reduction based on that.

[00:06:27] Speaker 00:
I would say if the court is doubtful whether that was enough of an analysis, then the solution is to remand for a fuller evidentiary hearing to consider that.

[00:06:37] Speaker 00:
I didn't see in the hearing

[00:06:39] Speaker 00:
any concern by the expert or the court that the expert's figures were speculative.

[00:06:45] Speaker 00:
It was more that they were going to be counterbalanced by this household contribution.

[00:06:52] Speaker 00:
But that household contribution figure we maintain is an improper consideration because it's not lost to the victim.

[00:07:01] Speaker 00:
It's lost to the other people in the victim's lives.

[00:07:04] Speaker 01:
Counsel, if personal consumption amount

[00:07:10] Speaker 01:
is not speculative.

[00:07:12] Speaker 01:
It's ascertainable.

[00:07:14] Speaker 01:
At that point, is the district court required to offset personal consumption, or does the district court still have some discretion as to what to do next?

[00:07:29] Speaker 00:
I think if it's ascertainable, then the district court needs to apply it.

[00:07:34] Speaker 00:
so that there is the actual figure of actual loss.

[00:07:40] Speaker 02:
What significance is it that although they did not include any personal consumption, they did give a deduction for the insurance payment, contrary to the statute?

[00:07:55] Speaker 02:
So do they balance out against each other?

[00:07:58] Speaker 00:
Well, numerically, they won't balance out, because the insurance payment was $50,000.

[00:08:03] Speaker 00:
And so the restitution amount that was imposed was still $208,000.

[00:08:07] Speaker 00:
And then the district court subtracted by $50,000.

[00:08:12] Speaker 00:
And that, my understanding of the record.

[00:08:16] Speaker 02:
But you shouldn't have subtracted $50,000.

[00:08:18] Speaker 02:
The statute says you do not deduct for insurance payments in calculating restitution.

[00:08:26] Speaker 00:
I hesitate giving a position on that, because that was not an error that we raised.

[00:08:32] Speaker 00:
But I think that the restitution amount imposed and calculated by the court was $208,000.

[00:08:38] Speaker 00:
And in order to not give a windfall to the victim's estate, the subtraction for the $50,000 comes in payment.

[00:08:48] Speaker 00:
Even though the statute says you must not include it.

[00:08:52] Speaker 00:
I confess I did not review that part of the statute.

[00:08:54] Speaker 00:
Nor that statute.

[00:08:57] Speaker 00:
We're not going to bother with that statute.

[00:08:59] Speaker 00:
Well, even if it was, there would still need to be a personal consumption reduction, and it's not going to wash out.

[00:09:04] Speaker 00:
It's not going to balance out.

[00:09:06] Speaker 01:
Well, but isn't your position that personal consumption deduction would eliminate restitution for lost income?

[00:09:19] Speaker 00:
Correct and the victims don't receive that that would that so the insurance deduct that would take care of the insurance But the insurance has already been handed over to my amount so that I knew it had yeah Yes, that that's correct our argument wouldn't affect the 50,000 from the insurance payment

[00:09:45] Speaker 00:
And so if there are no further questions on the method of calculation, I can turn briefly to the speculation and the schedule of payments.

[00:09:54] Speaker 00:
So for the second argument that we raise against the order is simply that the amount was based on the victim's spouse's testimony of what she believed the victim was earning.

[00:10:07] Speaker 00:
And the court found her credible that that's what she believed the victim was earning.

[00:10:12] Speaker 00:
But there was not documentary evidence or other type of evidence that buttressed that, the documents that we have show that she earned about $3,000, a little more than that in one year.

[00:10:23] Speaker 01:
This is a clear error review issue, correct?

[00:10:27] Speaker 00:
This is a clear error review, and we would submit that relying on just the assumption, the belief of the victim's spouse when she had already been shown to

[00:10:41] Speaker 00:
We all want to have great aspirations and think well of what our spouses do.

[00:10:47] Speaker 00:
So she believed that her spouse was going to complete that associate's degree.

[00:10:51] Speaker 00:
And in the end, the government withdrew with that request because she hadn't taken classes towards that degree in five years.

[00:10:58] Speaker 00:
So with that, the testimony from the victim's spouse was too speculative to support this amount.

[00:11:05] Speaker 04:
Well, you're really asking us to judge your credibility is what you're asking us to do.

[00:11:10] Speaker 00:
It's slightly nuanced, yes.

[00:11:13] Speaker 00:
We can't reassess the credibility of the victim.

[00:11:17] Speaker 00:
That is clear from this court's case law.

[00:11:21] Speaker 00:
Turning briefly to the payment schedule, if the court does not send this back or vacates the restitution order, we would ask for at least the order itself to be remanded so that it can be clearer whether immediate payment or the payment according to the schedule

[00:11:40] Speaker 00:
is what the court intended and authorized.

[00:11:45] Speaker 00:
The briefing suggests this was just standard language.

[00:11:48] Speaker 00:
Is that correct?

[00:11:49] Speaker 00:
That's my understanding from what was said at the restitution hearing, because defense counsel specifically asked for the court to have restitution start after the time in BOP finished.

[00:12:03] Speaker 00:
And the court didn't reject that consideration.

[00:12:06] Speaker 00:
The court turned to the government and asked the government for its position.

[00:12:10] Speaker 00:
And the government said, we should stick with the standard practice and the language that probation is used to.

[00:12:16] Speaker 02:
Nobody ever has to pay up all at once when they get out.

[00:12:19] Speaker 02:
That's been done hundreds of times, where they get the $100 or 10% or whatever it might be.

[00:12:27] Speaker 00:
Right.

[00:12:28] Speaker 02:
And BOP has an inmate financial responsibility.

[00:12:31] Speaker 02:
There's no real issue here on that.

[00:12:35] Speaker 00:
Well, there is an error for requiring immediate payment when someone's resources show that she cannot do immediate.

[00:12:43] Speaker 02:
The standard language says that if you can't pay the hundred percent, you can pay it off in increments, and it tells them what it is.

[00:12:56] Speaker 00:
So I'm not familiar with that standard language.

[00:12:59] Speaker 00:
The standard language that's in this order, first the box is checked for immediate payment,

[00:13:04] Speaker 00:
And then there are special instructions that if the defendant's financial condition does not allow for immediate payment of restitution, then the monthly payments start after 60 days.

[00:13:16] Speaker 04:
But didn't the district court say that they won't start until after she's released from prison?

[00:13:22] Speaker 00:
Correct.

[00:13:22] Speaker 00:
But it's all conditioned on the if the defendant's financial condition does not allow for immediate payment.

[00:13:27] Speaker 04:
And your problem with that is that we don't know who's going to make that determination.

[00:13:33] Speaker 00:
Correct.

[00:13:34] Speaker 00:
That's the problem.

[00:13:35] Speaker 00:
I think the simple fix is changing if to because.

[00:13:41] Speaker 00:
Because the defendant's financial condition shows she cannot pay, implement the schedule payment for after 60 days after release from BOP.

[00:13:51] Speaker 04:
Well, there's really no question that she cannot pay and the district court's already found it's not going to impose a fine because she doesn't have the current

[00:13:58] Speaker 04:
ability to pay financially.

[00:14:01] Speaker 04:
And then it considers whether she might have the ability to pay in the future and says, yeah, she might.

[00:14:05] Speaker 04:
So here's what I'm going to do.

[00:14:07] Speaker 04:
So we already have a finding in some sense, don't we, that she doesn't have the present ability to pay the full amount at once?

[00:14:15] Speaker 00:
Correct.

[00:14:16] Speaker 00:
We have that finding.

[00:14:17] Speaker 00:
And that's basically our argument.

[00:14:18] Speaker 00:
We have that finding.

[00:14:20] Speaker 00:
So immediate payment shouldn't be imposed.

[00:14:22] Speaker 00:
She doesn't have the financial resources for it.

[00:14:25] Speaker 00:
The payment schedule should be imposed.

[00:14:28] Speaker 01:
Well, is there any need at this point for this to be clarified?

[00:14:35] Speaker 01:
In other words, maybe the argument was a little stronger at the beginning, but here we are.

[00:14:44] Speaker 00:
Right.

[00:14:44] Speaker 00:
I think she has about 10 months left in BOP, so there is shorter timing left.

[00:14:49] Speaker 00:
We do know that BOP was taking payments from her account until we emailed them repeatedly the stay order, so I cannot

[00:14:58] Speaker 00:
I don't know what will happen if the stay order is lifted, if BOP will go back to requiring some funding.

[00:15:05] Speaker 00:
So I think there is still an injury here that can be fixed.

[00:15:08] Speaker 00:
But first, the recitation order should be vacated or at least remanded for the proper methodology to be used.

[00:15:17] Speaker 00:
Thank you, Counsel.

[00:15:18] Speaker 00:
Thank you.

[00:15:31] Speaker 03:
May it please the court, I am Luke Rizzo, an AUSA from the Eastern District of Oklahoma.

[00:15:37] Speaker 03:
The court should affirm the district court's restitution order, the reason being that the amount of restitution was determined based on the district court's factual findings, which were bolstered by clear-cut findings of witness credibility.

[00:15:50] Speaker 03:
That is all on the record.

[00:15:51] Speaker 02:
Well, isn't it usual to include a personal exemption or the personal expenses deducted from the

[00:16:01] Speaker 02:
Suppose it earnings.

[00:16:03] Speaker 02:
Well, whether it is usual or not.

[00:16:05] Speaker 02:
I mean, I suppose every accountant I've ever seen testifying in wrongful death cases and in restitution cases always includes a deduction for personal consumption.

[00:16:18] Speaker 03:
Well, personal consumption, it could be part of a restitution calculation, but it doesn't have to be.

[00:16:24] Speaker 03:
And that's based on Sarawak.

[00:16:26] Speaker 03:
this court's own opinion.

[00:16:27] Speaker 03:
I was on Sarawak.

[00:16:28] Speaker 03:
I'm familiar with it.

[00:16:30] Speaker 03:
Yes, Your Honor.

[00:16:30] Speaker 03:
So in that case, as you will remember, personal consumption, it wasn't deducted based on the circumstances of that case and the discretion of the district court, which again, in a restitution hearing and a restitution situation when the final order is being calculated, that's abundant discretion.

[00:16:49] Speaker 03:
The defendant maintains that.

[00:16:51] Speaker 03:
The court abused that discretion.

[00:16:54] Speaker 03:
for not using a personal consumption amount or not deducting one from the anticipated lost future earnings total.

[00:17:01] Speaker 01:
Well, it wasn't deducted there because it was speculative.

[00:17:05] Speaker 01:
But is it speculative here?

[00:17:09] Speaker 03:
Well, Your Honor, I suppose it could be speculative.

[00:17:14] Speaker 03:
What happened was the district court analyzed the evidence that it was presented with.

[00:17:20] Speaker 03:
And the government's expert witness

[00:17:22] Speaker 03:
as counsel alluded to, we have the personal consumption amount.

[00:17:26] Speaker 03:
And the expert determined that if he included that amount in his own estimation, then he would probably balance it out with a household contribution estimation as well, which essentially means they would kind of wash each other out.

[00:17:41] Speaker 01:
But how does that make sense under the statute when restitution is for the victims' losses and household services

[00:17:52] Speaker 01:
wouldn't be a loss to the crime victims' losses, but the Household Services would not have been a loss to Stephanie.

[00:18:06] Speaker 01:
It's a loss to Christie.

[00:18:08] Speaker 01:
And the statute says it's losses to the victim, Stephanie.

[00:18:17] Speaker 01:
Why was the district court correct to rely on that?

[00:18:24] Speaker 01:
It seems to be in conflict with the statute.

[00:18:28] Speaker 03:
Well, Your Honor, I think there's two parts to that answer.

[00:18:32] Speaker 03:
And again, the VWPA allows courts to grant restitution for the amount of loss sustained.

[00:18:40] Speaker 03:
The NVRA describes lost income.

[00:18:42] Speaker 03:
Lost to the victim of the crime.

[00:18:45] Speaker 03:
Yes, Your Honor.

[00:18:47] Speaker 01:
The household services that were lost were lost not to the victim of the crime, but to the spouse of the victim.

[00:18:57] Speaker 03:
Well, the statue also points to the fact that when the victim is deceased, the estate could stand in its place.

[00:19:04] Speaker 03:
So naturally, all of the losses are going to be what

[00:19:08] Speaker 03:
They're going to be from the victim's income.

[00:19:11] Speaker 03:
The victim is the victim of the crime, whether they're incapacitated or not.

[00:19:15] Speaker 01:
And the spouse, the surviving spouse, may be standing in as the victim's estate or as the surviving spouse, but it's still losses to the victim, not to her.

[00:19:32] Speaker 03:
The spouse is essentially standing in the place of the victim.

[00:19:35] Speaker 01:
Yeah, but the losses are the victim's losses, not hers.

[00:19:40] Speaker 01:
She gets what the losses were to the victim, who was Stephanie.

[00:19:45] Speaker 01:
That's her lost income.

[00:19:47] Speaker 01:
The household services were lost income to her.

[00:19:51] Speaker 03:
Well, Your Honor, the district court, in its order.

[00:19:54] Speaker 01:
I mean, I thought maybe you were going to make the argument that this is all part of exercise of discretion.

[00:20:00] Speaker 01:
But it sounds to me like you're saying,

[00:20:02] Speaker 01:
that this complies with the statute.

[00:20:06] Speaker 01:
I don't understand that argument.

[00:20:08] Speaker 01:
The statute's pretty clear, isn't it, that restitution is based on victim loss?

[00:20:16] Speaker 03:
Well, Your Honor, the victim's loss is ultimately what Dr. Clark, the expert witness, is evaluating.

[00:20:23] Speaker 03:
That's right.

[00:20:24] Speaker 03:
He does evaluate household contributions.

[00:20:26] Speaker 03:
And to the Court's point, yes, that is

[00:20:30] Speaker 03:
The district court considered all of that.

[00:20:32] Speaker 01:
But how is Dr. Clark's analysis compliant with the statute?

[00:20:38] Speaker 01:
Well, whether his or not.

[00:20:40] Speaker 01:
He might, as the district court said, have been credible.

[00:20:43] Speaker 01:
But he also might have been wrong to be saying, well, we're not going to take out an offset because of the household services.

[00:20:51] Speaker 01:
Wait a minute.

[00:20:52] Speaker 01:
Household services aren't covered by the statute.

[00:20:57] Speaker 03:
Well, there's also the actual loss that, you know, the victim was making income as well.

[00:21:05] Speaker 03:
And we know that from the testimony of her spouse, Christie.

[00:21:08] Speaker 03:
That's the part about the house cleaning, and that effectively gets us to the figure of around $10,000 to $12,000.

[00:21:15] Speaker 03:
So that is the victim's income that she was making.

[00:21:19] Speaker 03:
The district court found Christie to be a credible witness.

[00:21:22] Speaker 04:
I think we all understand that.

[00:21:24] Speaker 04:
I think that the question is, the district court here never really considered the personal consumption credit.

[00:21:31] Speaker 04:
And it didn't do so because it relied upon the expert's testimony.

[00:21:36] Speaker 04:
And the expert said, I only look at personal consumption credit and the household, the replacement household

[00:21:45] Speaker 04:
amount in civil cases, I don't look at it's not relevant here.

[00:21:51] Speaker 04:
I don't add it in or subtract it here in restitution cases.

[00:21:57] Speaker 04:
And I think what Judge Matheson is saying is that's really not correct because one goes to the victim's loss and the other goes to the spouse's loss.

[00:22:10] Speaker 04:
And so if we assume that the court should have considered

[00:22:15] Speaker 04:
the evidence of the credit for the victim's use, consumption, that didn't happen here.

[00:22:28] Speaker 04:
And isn't that an abuse of discretion not to consider it at all?

[00:22:32] Speaker 04:
Because that's what happened here.

[00:22:34] Speaker 04:
It really never got considered at all.

[00:22:36] Speaker 04:
We don't know whether the district court thought it was speculative.

[00:22:39] Speaker 04:
We don't know if the district court thought the expert's figures on that were correct.

[00:22:44] Speaker 04:
He just didn't consider, or the district court didn't, based on the expert's testimony, which may have been legally incorrect.

[00:22:54] Speaker 03:
Well, Your Honor, personal consumption amount

[00:22:58] Speaker 03:
The district court, whether or not it considered it or whether that number would have been speculative, we don't really know.

[00:23:05] Speaker 03:
It's not exactly on the record.

[00:23:07] Speaker 03:
We have Dr. Clark's evaluation of it.

[00:23:11] Speaker 03:
And the court adopted that evaluation and found it reasonable.

[00:23:16] Speaker 03:
To the question that was posed earlier.

[00:23:18] Speaker 04:
Well, if we were to say that it wasn't reasonable, if it wasn't reasonable for the district court to rely on the experts

[00:23:25] Speaker 04:
testimony on this point where he combined those two elements and said, I'm just not going to consider either.

[00:23:31] Speaker 04:
If that wasn't reasonable, what should we do with this case?

[00:23:36] Speaker 04:
Should we remand it for the district court to consider the personal consumption amount?

[00:23:42] Speaker 04:
Or if there was, whether it was speculative or whether there should be a credit?

[00:23:50] Speaker 03:
The government's position is that a personal consumption amount, that's not in the statute either.

[00:23:56] Speaker 03:
Household contributions and analysis of that adds loss to the victim's spouse as opposed to actual income.

[00:24:04] Speaker 03:
The government can see that's not part of the statute.

[00:24:06] Speaker 03:
But the government also points out a deduction for personal consumption.

[00:24:10] Speaker 03:
That's not in the statute either.

[00:24:12] Speaker 03:
You're saying it can never be deducted?

[00:24:13] Speaker 03:
It certainly could be deducted, Your Honor.

[00:24:15] Speaker 03:
That's what Sarawak said, correct?

[00:24:17] Speaker 03:
That's what Sarawak said, of course, Your Honor, yes.

[00:24:20] Speaker 03:
So I guess the government's counterpoint would only be lost household contributions.

[00:24:25] Speaker 03:
It's not in the statute either.

[00:24:27] Speaker 03:
Whether or not the court wasn't allowed to consider it, the government's position is that's not really the issue here.

[00:24:36] Speaker 03:
It's just about the discretion that the court had to make the determination of the proper amount of restitution.

[00:24:43] Speaker 03:
Now, questioning the expert witness

[00:24:47] Speaker 03:
understandable, but at the same time, the district court didn't question that analysis.

[00:24:52] Speaker 03:
The district court found it credible.

[00:24:54] Speaker 03:
It found Dr. Clark's estimation to be a reasonable one, a conservative one, based on all the evidence that was on the record.

[00:25:02] Speaker 03:
And that's where the government comes from.

[00:25:04] Speaker 03:
The government is simply supporting the district court's decision, and it's explicitly stating on multiple occasions that it found both of the government's witnesses to be

[00:25:14] Speaker 03:
to be credible, again, as alluded to earlier, a notion and an aspect of the case that is practically unreviewable here.

[00:25:23] Speaker 03:
And it should also be, I think it's fair to infer the court made those credibility findings quite clear on purpose, and I believe it's even mentioned in the record.

[00:25:35] Speaker 03:
The real issue here is whether this decision for the restitution amount was arbitrary and capricious.

[00:25:42] Speaker 03:
I mean, that's the standard.

[00:25:43] Speaker 03:
Was it an abuse of discretion?

[00:25:45] Speaker 03:
Was there any sort of legal misapplication?

[00:25:47] Speaker 04:
And there might have been, is what we're asking you.

[00:25:50] Speaker 04:
If the district court said, I'm relying on the expert's testimony about this, and let's say the expert's testimony was legally incorrect, then wasn't it an abuse of discretion to rely on that expert's testimony?

[00:26:06] Speaker 03:
No, Your Honor.

[00:26:07] Speaker 03:
It wouldn't be an abusive discretion.

[00:26:09] Speaker 04:
Why not?

[00:26:09] Speaker 03:
Because there's other evidence on the record as well.

[00:26:11] Speaker 04:
I mean, again, the actual... But the district court told us what it was relying on.

[00:26:17] Speaker 03:
Well, the district court certainly said and made clear it was relying on Dr. Clark's expert analysis and his figure.

[00:26:24] Speaker 03:
But his figures aren't solely based on

[00:26:28] Speaker 03:
whether or not there was a personal consumption deduction, the amount of household contributions.

[00:26:32] Speaker 03:
It wasn't solely based on that.

[00:26:34] Speaker 03:
There were multiple parts of that.

[00:26:36] Speaker 03:
The whole report itself, which is on the record, makes that clear.

[00:26:40] Speaker 01:
Well, then why wouldn't it make sense to send it back and get this sorted out and take out the part that the expert and the court shouldn't have relied upon and then look at what's left?

[00:26:53] Speaker 03:
Well, Your Honor, it shouldn't

[00:26:57] Speaker 03:
It's difficult to question the district court's discretion here when there is no clear, there's no legal misapplication.

[00:27:07] Speaker 03:
I don't really, I guess the government would effectively stand by its position.

[00:27:14] Speaker 03:
It's an abuse of discretion.

[00:27:15] Speaker 03:
That's the standard.

[00:27:17] Speaker 03:
And the government struggles to say it.

[00:27:19] Speaker 03:
Legal error is an abuse of discretion.

[00:27:23] Speaker 03:
doesn't see that there is an illegal misallocation.

[00:27:27] Speaker 01:
So it's your position then that a deceased victim's provision of household services is covered by the statute

[00:27:45] Speaker 01:
as a component of victim loss for restitution.

[00:27:49] Speaker 01:
That's your understanding of the law.

[00:27:51] Speaker 03:
Well, not just the law, Your Honor, not just the statutes.

[00:27:54] Speaker 01:
I know we've spoken about the statutes and what they... Well, you've at least got to say that's permitted under the statute, because if it isn't, then we've got legal errors.

[00:28:04] Speaker 01:
So you must be saying that it's okay for every court, in the exercise of its discretion, to consider

[00:28:14] Speaker 01:
lost household services as part of the victim's loss.

[00:28:18] Speaker 03:
Of course, Your Honor.

[00:28:19] Speaker 03:
What I meant to say was the goal of restitution is to make the victims whole.

[00:28:25] Speaker 03:
That's taken from a case.

[00:28:27] Speaker 03:
That's taken from the United States v. James.

[00:28:30] Speaker 03:
So to make the victims whole, the victims of criminal conduct whole.

[00:28:33] Speaker 01:
Well, the defendant here is suggesting that in the case of a deceased victim and lost income, you would be

[00:28:43] Speaker 01:
If you don't offset for personal consumption, you're doing a lot more than making the spouse hold, you're doing a windfall.

[00:28:55] Speaker 03:
Why isn't this a windfall?

[00:28:58] Speaker 03:
Because in a restitution case, it's case specific.

[00:29:01] Speaker 03:
It's all about these facts.

[00:29:02] Speaker 03:
It's all about Christie's testimony.

[00:29:04] Speaker 03:
She's testifying about the loss that she has sustained, how her income and her- Yeah, but the statute says it's the

[00:29:12] Speaker 01:
The victim's lost.

[00:29:13] Speaker 01:
It's the loss the victim sustained, not the loss that Christie sustained.

[00:29:20] Speaker 01:
She gets to have the loss that Stephanie sustained.

[00:29:25] Speaker 01:
It's the lost income.

[00:29:28] Speaker 03:
There's two parts here when we're talking about whether or not there's a windfall for Christie, the surviving spouse.

[00:29:36] Speaker 03:
It's $100 a month, effectively.

[00:29:38] Speaker 03:
That's the restitution order.

[00:29:40] Speaker 03:
And Christie does describe her spouse died, the victim died, and then she describes how the household is different.

[00:29:49] Speaker 03:
The household income is different, effectively.

[00:29:51] Speaker 01:
I think we're kind of going around in circles at this point.

[00:29:54] Speaker 01:
But before you sit down, do you oppose a remand to the district court to clarify whether there is an immediate payment obligation

[00:30:07] Speaker 03:
Your Honor, there's no immediate payment obligation.

[00:30:10] Speaker 03:
The order is clear.

[00:30:12] Speaker 03:
The record's clear.

[00:30:13] Speaker 03:
She has 60 days after she's released from prison to begin payment.

[00:30:18] Speaker 03:
The government's not clear why this is an issue and believes it's effectively moot.

[00:30:23] Speaker 01:
And if there's no, with that.

[00:30:25] Speaker 01:
Do you agree that it wasn't clear at the time that judgment was entered?

[00:30:33] Speaker 03:
The government doesn't agree with that.

[00:30:34] Speaker 03:
The government thinks it's written down.

[00:30:36] Speaker 03:
It's spoken on the record.

[00:30:38] Speaker 03:
There's multiple sources for the defendant to glean what is exactly meant by it.

[00:30:43] Speaker 03:
It's an immediate payment.

[00:30:45] Speaker 03:
But if the defendant doesn't have the financial resources to pay that, she will begin payment of $100 or 10% of her monthly income 60 days after her release from federal prison.

[00:30:56] Speaker 03:
The BOP cannot collect it, cannot alter it, or didn't delegate any of

[00:31:02] Speaker 03:
authority for the BOP to do that, and that's the government's position on that.

[00:31:07] Speaker 01:
Thank you, counsel.

[00:31:09] Speaker 01:
Thank you, your honor.

[00:31:14] Speaker 01:
Once again, we have no rebuttal time, so the case will be submitted.

[00:31:17] Speaker 01:
Counsel are excused.