                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA

___________________________________
                                    )
UNITED STATES OF AMERICA,           )
                                    )
      v.                            )                  Criminal No. 09-0026 (PLF)
                                    )
RICO RODRIGUS WILLIAMS,             )
                                    )
      Defendant.                    )
___________________________________ )


                             OPINION AND RESTITUTION ORDER

               On April 20, 2012, this Court sentenced defendant Rico Rodrigus Williams to

twenty-two years of incarceration on his conviction on one count of second degree murder and

ten years of incarceration on his conviction on one count of witness tampering, the sentences to

run concurrently. The Court also imposed five years of supervised release, with conditions,

following the period of incarceration. At sentencing, the Court heard brief argument from

counsel regarding restitution. The Court informed the defendant that restitution would be

ordered but, pursuant to statutory authorization, see 18 U.S.C. § 3664(d)(5), it deferred

determination of the amount of restitution until after the government and the defendant had the

opportunity to file supplemental briefs on the issue. This briefing is now complete. Upon

careful consideration of the parties’ initial sentencing memoranda and supplemental briefs,

including letters from experts attached as exhibits, the relevant legal authorities, and the entire

record in this case, the Court will order restitution to the estate of the deceased, Sergeant Juwan

Johnson, in the amount of $756,000. 1


       1
               The papers reviewed in connection with this matter include the following: the jury
verdict form (“Verdict Form”), Dkt. No. 137; the government’s memorandum in aid of
sentencing (“Govt.’s Mem.”), Dkt. No. 171; defendant’s memorandum in aid of sentencing
                                       I. BACKGROUND

               Defendant Rico Rodrigus Williams, a former member of the United States

Air Force, killed Army Sergeant Juwan Johnson during a Gangster Disciples gang initiation that

took place on July 3, 2005, near the Ramstein Air Force Base in Germany. On November 15,

2010, after a twelve-day jury trial, Mr. Williams was found guilty of one count of second degree

murder, in violation of 18 U.S.C. § 1111(a), and one count of witness tampering, in violation of

18 U.S.C. § 1512(b)(3). See Verdict Form at 1-2. The Court subsequently denied defendant’s

post-trial motions for judgment of acquittal and for a new trial. See June 3, 2011 Tr., Dkt. No.

150; Order, Dkt. No. 161 (Nov. 17, 2011) (denying motion on count two); Order, Dkt. No. 163

(Nov. 17, 2011) (denying motion on count one).

               The parties then filed sentencing memoranda with the Court. The government

sought a sentence of life imprisonment, while Mr. Williams urged the Court to sentence him to

no more than ten years of incarceration. In addition, the government requested that the Court

order Mr. Williams to pay $250,000 in restitution for Sergeant Johnson’s lost future income,

pursuant to the Mandatory Victims Restitution Act of 1996, 18 U.S.C. § 3663A (“MVRA”). The

government estimated that Sergeant Johnson would have earned approximately $1,600,000 over

the course of his lifetime, far in excess of what the government mistakenly believed was a

$250,000 statutory cap on restitution. See Govt.’s Mem. at 21. Mr. Williams, through counsel,



(“Def.’s Mem.”), Dkt. No. 170; defendant’s reply to government’s sentencing memorandum and
response to the Court’s Memorandum Opinion and Order (“Def.’s Initial Reply”), Dkt No. 177;
the Judgment, Dkt. No. 181; the government’s addendum to its memorandum in aid of
sentencing (“Govt.’s Addendum”), Dkt. No. 185; June 4, 2012 letter by Colin England (“First
England Letter”), Dkt. No. 185-1; defendant’s opposition to government’s addendum (“Def.’s
Opp’n”), Dkt. No. 195; December 14, 2012 letter by Richard Edelman (“Edelman Letter”), Dkt.
No. 195-1; the government’s reply to defendant’s opposition (“Govt.’s Reply”), Dkt. No. 199;
March 27, 2013 letter by Colin England (“Second England Letter”), Dkt. No. 199-1; and the
transcript of the sentencing hearing (“Apr. 20, 2012 Tr.”), to be filed on this Court’s docket.


                                                2
conceded that restitution may be ordered in cases such as his, but he challenged the

government’s estimate as purely speculative. Def.’s Initial Reply at 8.

               On April 20, 2012, the Court sentenced Mr. Williams to imprisonment for a

period of twenty-two years on his second degree murder conviction and ten years on the witness

tampering count, the two sentences to run concurrently. See Apr. 20, 2012 Tr. at 99; Judgment

at 3. The Court also concluded that Mr. Williams was required to pay restitution but that more

information was required before it could determine the appropriate amount. Apr. 20, 2012 Tr. at

99. 2 Upon agreement by the parties, the Court postponed determination of the restitution amount

until after the government and the defendant filed supplemental briefs. Id. at 60-64, 99;

Judgment at 5, 7. 3

               Despite its earlier view, the government, in its Addendum to its Memorandum in

Aid of Sentencing, now correctly notes that no statutory cap applies in this case. Govt.’s

Addendum at 1-2 n.1. It therefore requests that the defendant be ordered to pay the full value of
       2
               Although the total amount of restitution had not yet been determined, the Court
ordered that upon release from prison, the defendant was to pay the balance of any restitution
owed at a rate of no less than $50.00 each month. Apr. 20, 2012 Tr. at 100; Judgment at 8.
       3
                By statute, if the victim’s losses are not ascertainable prior to sentencing, the
court “shall set a date for the final determination of the victim’s losses, not to exceed 90 days
after sentencing.” 18 U.S.C. § 3664(d)(5). The deadline for determining restitution in this case
initially was July 19, 2012. The government and the defendant each filed unopposed motions for
extensions of time within which to file their respective briefs on the restitution issue, and neither
party objects to restitution being determined after the statutory deadline. See, e.g., Defendant’s
Unopposed Motion for Extension of Time for Briefing Schedule Regarding Amount of
Restitution, Dkt. No. 194 (seeking extension of filing deadline and stipulating to extension of
time for the Court’s ruling on restitution); Government’s Unopposed Motion to Late File Its
Reply to Defendant’s Opposition to Government’s Addendum to Its Memorandum in Aid of
Sentencing, Time Having Expired and For an Extension of Time for the Court’s Ruling on the
Issue of Restitution, Dkt. No. 198. The Court’s failure to determine the amount of restitution
within ninety days after sentencing does not deprive it of jurisdiction to impose restitution now.
Dolan v. United States, 130 S. Ct. 2533, 2539 (2010).



                                                 3
Sergeant Johnson’s lost future earnings, which the government estimates to be $756,000.

Govt.’s Reply at 1, 9-10. Mr. Williams maintains that the government has based its estimate of

the victim’s lost income on mere speculation, thereby failing to meet its burden of proving the

amount of the victim’s losses by a preponderance of the evidence. Def.’s Opp’n at 7-8. He also

argues that the statute does not provide for restitution for the lost future income of a deceased

victim. Id. at 5-6.


                                          II. ANALYSIS

                                A. The MVRA Applies in this Case

               Courts have no inherent authority to order restitution; they may do so only as

authorized by statute. See United States v. Papagno, 639 F.3d 1093, 1096 (D.C. Cir. 2011). In

this case, restitution is both authorized and mandated by the MVRA, 18 U.S.C. § 3663A, which

requires defendants convicted of certain crimes to pay restitution to the victim, or the estate of

the victim, for losses proximately caused by the defendant’s criminal conduct. The statute

provides as follows:

               Notwithstanding any other provision of law, when sentencing a
               defendant convicted of an offense described in subsection (c), the
               court shall order, in addition to . . . any other penalty authorized by
               law, that the defendant make restitution to the victim of the offense
               or, if the victim is deceased, to the victim’s estate.

18 U.S.C. § 3663A(a). Subsection (c) provides that the MVRA applies in sentencing

proceedings for convictions of certain offenses, including any offense that constitutes a crime of

violence. Id. § 3663A(c)(1)(A)(i).

               Second degree murder undoubtedly is a crime of violence. See 18 U.S.C. § 16(b)

(defining crime of violence as offense containing element of physical force against person or

property of another or involving substantial risk of such force); United States v. Serawop, 505


                                                  4
F.3d 1112, 1114-15 and n.1 (10th Cir. 2007) (applying MVRA to lesser offense of voluntary

manslaughter). The MVRA therefore applies to Mr. Williams’ conviction for second degree

murder. For that reason, this Court must order restitution to Sergeant Johnson’s estate “in the

full amount of [his] losses [resulting from the murder] as determined by the Court and without

consideration of the economic circumstances of the defendant.” 18 U.S.C. § 3664(f)(1)(A).


                 B. The MVRA Requires Restitution for Lost Income in this Case

               Mr. Williams raises a threshold question of whether restitution for lost income is

authorized under subsection (b) of Section 3663A. See Def.’s Opp’n at 5 (“[Section] 3663A

seemingly does not provide for restitution of lost income as a result of death.”). That subsection

provides, in relevant part:

               The order of restitution shall require that such defendant . . .

                                              . . .

                   (2) in the case of an offense resulting in bodily injury to a
                       victim—

                       (A) pay an amount equal to the cost of necessary medical
                       and related professional services and devices relating to
                       physical, psychiatric, and psychological care . . .

                       (B) pay an amount equal to the cost of necessary physical
                       and occupational therapy and rehabilitation; and

                       (C) reimburse the victim for income lost by such victim as
                       a result of such offense;

                   (3) in the case of an offense resulting in bodily injury that
                       results in the death of the victim, pay an amount equal to
                       the cost of necessary funeral and related services; and




                                                  5
                   (4) in any case, reimburse the victim for lost income and . . .
                       other expenses incurred during participation in the
                       investigation or prosecution of the offense or attendance at
                       proceedings related to the offense.

18 U.S.C. § 3663A(b). 4

               Defendant points to subsection (b)(2) of the statute, which provides that for “an

offense resulting in bodily injury to a victim,” the defendant must reimburse the victim for

income lost as a result of the offense. Def.’s Opp’n at 5. The defendant then notes that the

following subsection – subsection (b)(3) – authorizes restitution for funeral expenses where the

offense “causes ‘bodily injury that results in the death of the victim.’” Def.’s Opp’n at 5-6

(quoting 18 U.S.C. § 3663A(b)(3)) (emphasis added). Defendant argues that because subsection

(b)(2) does not contain the phrase “that results in the death of the victim,” while subsection

(b)(3) does, subsection (b)(2) necessarily does not apply to offenses where the victim died. Id. at

6 (“[I]t appears that the lost income provision of subsection (b)(2) does not provide for lost

income where death results.”).

               Mr. Williams’ argument is inconsistent with the plain meaning of the MVRA.

Under the most natural reading of the statute, the phrase “an offense resulting in bodily injury”

refers to a category that includes offenses in which the victim died as a result of the bodily injury

as well as offenses in which the victim survived the injury. Furthermore, it would make little

sense to reduce restitution in cases where the injury suffered was so severe as to be fatal. As the

Ninth Circuit has observed,

       4
                Although subsections (b)(2) and (b)(4) refer to reimbursement to the victim, 18
U.S.C. § 3663A(a) clarifies that if the victim is deceased, restitution shall be made to the victim’s
estate. See 18 U.S.C. § 3663A(a)(1) (requiring “restitution to the victim of the offense or, if the
victim is deceased, to the victim’s estate”); id. § 3663A(a)(2) (providing that if victim is a minor,
incompetent, incapacitated, or deceased, “the legal guardian of the victim or representative of the
victim’s estate, another family member, or any other person appointed as suitable by the court,
may assume the victim’s rights under this section”).


                                                  6
               It would be illogical to assume that the ultimate death of a person
               who suffered bodily injury eliminates restitution for lost income.
               To not award restitution for future lost income would lead to a
               perverse result where murderers would be liable for markedly less
               in restitution than criminals who merely assault and injure their
               victims.

United States v. Cienfuegos, 462 F.3d 1160, 1164 (9th Cir. 2006); see also United States v.

Serawop, 505 F.3d at 1119 (noting “anomalous result” that would occur if subsections (b)(2) and

(b)(3) were read in the disjunctive). And although the D.C. Circuit has not considered this issue,

courts of appeals in other circuits have issued thoughtful and persuasive decisions in which they

have held that the MVRA requires restitution for the lost future income of deceased victims. See

United States v. Serawop, 505 F.3d at 1118-20; United States v. Cienfuegos, 462 F.3d at

1163-69 (9th Cir. 2006); United States v. Oslund, 453 F.3d 1048, 1062-63 (8th Cir. 2006).


     C. The Government Has Adequately Proved the Amount of Sergeant Johnson’s Losses

               The government bears the burden of demonstrating by a preponderance of the

evidence the amount of a victim’s losses. 18 U.S.C. § 3664(e); United States v. Fair, 699 F.3d

508, 513 (D.C. Cir. 2012).

               The Court may not order restitution for losses that are unsubstantiated or

speculative. See United States v. Cienfuegos, 462 F.3d at 1168-69 (“Speculative losses are

incompatible with the MVRA’s statutory scheme because ‘one cannot bear the burden of proving

the amount of a loss by a preponderance of the evidence when it is no more than possible that the

loss will occur at all.’”) (internal quotation and alteration omitted). But as the D.C. Circuit has

explained, “‘determining the dollar amount of a victim’s losses attributable to the defendant will

often be difficult’ and ‘such a determination will inevitably involve some degree of

approximation,’ which is ‘not fatal.’” In re Sealed Case, 702 F.3d 59, 66 (D.C. Cir. 2012)


                                                  7
(quoting United States v. Monzel, 641 F.3d 528, 540 (D.C. Cir. 2011)). “Rather, the district

court’s charge is to ‘estimate, based upon facts in the record, the amount of [the] victim’s loss

with some reasonable certainty.’” Id. (alteration in original) (quoting United States v. Monzel,

641 F.3d at 540).

               In its addendum, filed after Mr. Williams’ sentencing hearing, the government

requested $835,000 in restitution for Sergeant Johnson’s lost future wages and supported its

estimate with a three-page letter prepared by an actuarial expert, Colin England. See Govt.’s

Addendum; First England Letter. 5 In response, the defendant challenged Mr. England’s analysis

as “inaccurate, unreliable, and deficient in a number of respects.” Def.’s Opp’n at 7. The

defendant submitted a letter from his own expert, Professor Richard Edelman, who raised

specific objections to several of Mr. England’s assumptions. See Edelman Letter. 6 The

government then filed a reply in which it reduced its request to $756,000. See Govt’s Reply at 1.

The government also included an eight-page letter by Mr. England, in which Mr. England

addressed Dr. Edelman’s objections, revised certain assumptions and explained his reasons for

doing so, and provided additional support for those assumptions that he left unaltered. See

Second England Letter. The defendant did not seek leave to file a sur-reply.

               After reviewing the evidence and analysis submitted by the parties, as well as the

evidence presented at trial, the Court is persuaded by a preponderance of the evidence that

$756,000 is a fair estimate of Sergeant Johnson’s lost income. It is impossible, of course, to



       5
              Mr. England is a Fellow of the Society of Actuaries, a Fellow of the Conference
of Consulting Actuaries, an Enrolled Actuary and a Certified Employee Benefits Specialist.
Govt.’s Addendum Ex. 2 at 3.
       6
               Dr. Edelman holds a Ph.D. in Business Administration and serves as Professor
Emeritus in the Department of Finance and Real Estate at The American University. Def.’s
Opp’n Ex. 1 at 12.


                                                 8
know with certainty the type of work that Sergeant Johnson would have pursued upon his

discharge from the service, or what professional success he might have found. But a victim’s

losses need not “be proven with exactitude.” In re Sealed Case, 702 F.3d at 66; see also United

States v. Serawop, 505 F.3d at 1125 (affirming district court’s order of restitution for lost future

earnings of deceased infant victim). The government has calculated its estimate using reasonable

actuarial assumptions supported by evidence of the deceased victim’s prior training and

experience and the relevant labor market conditions.

               Noting that Sergeant Johnson served as a truck driver in the Army, Mr. England

assumes that Sergeant Johnson was likely to pursue and obtain work as a truck driver upon his

return to the States. Govt.’s Reply at 9; Second England Letter at 2-3. Mr. England then

estimates that Sergeant Johnson’s initial salary upon return to the United States would have been

$30,000, with annual pay raises of 2.5% and a benefits package of 40% of pay. See Second

England Letter at 2-3; 5. He bases these numbers on the current salary levels, average pay

increases, and average benefit packages within the trucking industry, with a focus on trucking

companies in Sergeant Johnson’s hometown of Baltimore, Maryland. Id.

               Mr. England assumes that Sergeant Johnson, who died at the age of 25, would

have worked for 30 years, until the age of 55. Second England Letter at 4. This is a

conservative assumption – Sergeant Johnson very well might have worked longer, which would

result in a higher estimate – but it is a reasonable one. And although the defendant suggests that

Sergeant Johnson’s ability to work might have been affected by a back injury he suffered while

stationed in Iraq, see Def.’s Opp’n at 4, the Court finds no evidence in the record that Sergeant

Johnson suffered a permanent or disabling injury.




                                                  9
               Mr. England reduces the estimated gross amount of Sergeant Johnson’s lost future

earnings by 33 percent, to reflect that portion of Sergeant Johnson’s income that would have

been used directly by Sergeant Johnson for his own consumption needs. Second England Letter

at 7. This “consumption deduction” is often incorporated into lost earnings awards in the civil

context, see, e.g., Kiser v. Schulte, 648 A.2d 1, 4 (Pa. 1994), and it is permitted in criminal

restitution as well. See United States v. Serawop, 505 F.3d at 1128 n.6 (noting that trial court

had discretion to reduce restitution amount by estimated consumption expenses); see also United

States v. Marcello, No. 02 CR 1050-2-3-4-7-10, 2009 WL 929959, at *3 (N.D. Ill. 2009)

(applying consumption deduction), aff’d in part, rev’d in part on other grounds sub nom. United

States v. Schiro, 679 F.3d 521 (7th Cir. 2012).

               Mr. England does not deduct the taxes that Sergeant Johnson likely would have

paid to the government, nor does he include the government transfers that Sergeant Johnson

likely would have received. See Second England Letter at 8. The Court finds this omission to be

appropriate. As neither the government nor the defendant has put forth evidence or information

upon which to base estimates of taxes or transfers, such an adjustment would be speculative.

               The government has appropriately discounted the present value of the estimated

future earnings, minus consumption expenses, using an annual discount rate of 7%. Second

England Letter at 8-9. This discount rate is relatively high, cf. Calva-Cerqueira v. United States,

281 F. Supp. 2d 279, 293, 297-98 (D.D.C. 2003) (applying discount rate of 4.5%), but it is within

the range of reasonableness.

               Calculations of lost future income inevitably are approximated. But the D.C.

Circuit, as well as other courts of appeals, have made clear that a limited amount of imprecision

is acceptable. See In re Sealed Case, 702 F.3d at 66 (approving restitution for estimated future




                                                  10
mental health expenses of victims); United States v. Monzel, 641 F.3d at 540 (reversing district

court’s order of nominal restitution to victims of child pornography crimes and remanding for

further consideration of victims’ losses); United States v. Cienfuegos, 462 F.3d at 1161, 1168-69

(reversing district court’s denial of restitution for deceased victim’s lost future earnings, where

court of appeals found that those earnings were “reasonably calculable”). 7 Here, the Court finds

sufficient facts in the record with which to calculate Sergeant Johnson’s lost future income with

“some reasonable certainty.” In re Sealed Case, 702 F.3d at 66.

               Sergeant Johnson was 25 years old when he died, and he was in the process of

leaving the military at the time of his death. He was healthy and, the testimony at trial showed,

was in good physical condition. He was a high school graduate who drove trucks of supplies

while serving in Iraq. The Court finds that Sergeant Johnson possessed employable skills and

very likely would have obtained gainful civilian employment upon his return to Baltimore. The

Court also finds that Sergeant Johnson most likely would have been employed as a civilian for at

least thirty years. Based on these findings, and the actuarial assumptions discussed above, the

Court concludes that the government has proven by a preponderance of the evidence that

Sergeant Johnson’s lost future income would be approximately $756,000.



       7
                 When considering a prior statute that authorized but did not mandate restitution,
the Seventh Circuit disapproved of restitution for lost future earnings, on the basis that “the
difficult problem of translating an uncertain future stream of earnings into a present value . . . is
not a problem meet for solution in a summary proceeding ancillary to sentencing for a criminal
offense.” United States v. Fountain, 768 F.2d 790, 801-02 (7th Cir. 1985) (Posner, J.). While
perhaps still a valid observation, such considerations have been effectively superseded by the
MVRA, which unequivocally imposes mandatory restitution for future losses that must be
approximated, see United States v. Schiro, 679 F.3d at 534 (Posner, J.) (affirming order of
restitution for lost future earnings under the MVRA), except in cases where no reasonable
approximation can be made. See 18 U.S.C. § 3663A(c)(3).



                                                  11
                         D. Restitution Will Not Be Capped at $250,000

               The defendant urges the Court to limit restitution to $250,000, based on the

government’s earlier misstatement that restitution was statutorily capped at this amount. The

defendant asserts that his consent to an extension of time for a determination of restitution

beyond the date of sentencing was “based upon the government’s explicit representation that

restitution could not exceed $250,000.” Def.’s Opp’n at 8.

               Contrary to defendant’s assertion, there is no evidence in the record that he

conditioned his consent to a continuance on the mistaken reference to a $250,000 cap or that he

was prejudiced by the delay. As the Supreme Court recently noted, the statutory requirement of

prompt determination of restitution is intended to protect victims of crime, rather than to provide

certainty to defendants. See Dolan v. United States, 130 S. Ct. at 2539-40. The only harm

suffered by Mr. Williams is that the delay provided the government with the opportunity to

further research the question and to identify its legal error. This does not provide a sufficient

basis for limiting the amount of restitution to Sergeant Johnson’s estate.

               The Court postponed determination of restitution and ordered supplemental

briefing precisely because it lacked a complete understanding of the relevant law and facts

governing restitution in this case. Had the Court adopted the government’s error regarding the

law, it would have done so in plain violation of the MVRA, which requires that the Court “order

restitution to each victim in the full amount of each victim’s losses.” 18 U.S.C. § 3664(f)(1)(A)

(emphasis added). The Court will order restitution for the full $756,000 supported by the record.

               For the reasons stated above, it is hereby

               ORDERED that defendant Rico Williams shall pay restitution in the amount of

$756,000 to the estate of Juwan Johnson; it is




                                                 12
                FURTHER ORDERED that during the period of incarceration: (1) if the

defendant Rico Williams earns wages in a Federal Prisons Industries (“UNICOR”) job, then the

defendant shall pay fifty percent (50%) of wages earned toward the financial obligations

imposed by this Restitution Order; and (2) if the defendant does not work in a UNICOR job, then

the defendant shall pay a minimum of $25 per quarter toward the total financial obligations in

this Order; it is

                FURTHER ORDERED that upon release from incarceration, defendant Rico

Williams shall pay restitution at the rate of ten percent (10%) of his monthly gross earnings,

provided that he shall pay no less than $50 per month, until such time as the Court may alter that

payment schedule; it is

                FURTHER ORDERED that the defendant shall notify the Court, the Attorney

General, and the Probation Office of any material change in his economic circumstances that

might affect his ability to pay restitution; it is

                FURTHER ORDERED that these payments do not preclude the government from

using other assets or income of the defendant to satisfy the financial obligations imposed by this

Order; and it is

                FURTHER ORDERED that the Clerk of the Court shall prepare an Amended

Judgment for the Court’s signature.

                SO ORDERED.



                                                          /s/_______________________________
                                                          PAUL L. FRIEDMAN
DATE: May 24, 2013                                        United States District Judge




                                                     13
