MEMORANDUM OPINION
PAUL
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
The
defendant, Rico Williams, a former member of the United
States Air Force, killed Army Sergeant Juwan Johnson during a
gang initiation that took place on July 3, 2005, near the
Ramstein Air Force Base in Germany. See United States v.
Williams, 946 F.Supp.2d 112, 114 (D.D.C. 2013). On
November 15, 2010, after a twelve-day jury trial, Mr.
Williams was convicted 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 id. The Court sentenced Mr. Williams
in April 2012 to twenty-two years in prison on his second
degree murder conviction and ten years in prison on his
witness tampering conviction, the two sentences to run
concurrently. See id. at 113. The Court also imposed
five years of supervised release, with conditions, following
the period of incarceration. See id.
At
sentencing, the Court informed the parties that restitution
would be ordered but deferred determination of the amount of
restitution until the parties had an opportunity to file
supplemental briefs. See United States v. Williams,
946 F.Supp.2d at 113. Following the submission of
supplemental briefs in May 2013, the Court ordered Mr.
Williams to pay restitution in the amount of $756, 000 to
Sergeant Johnson's estate. See id. at 114-15.
In
February 2016, the D.C. Circuit reversed Mr. Williams'
conviction for second degree murder, affirmed the conviction
for witness tampering, and remanded for a new trial. See
United States v. Williams, 836 F.3d 1, 19 (D.C. Cir.
2016). This Court subsequently vacated the second degree
murder conviction and the restitution order based on that
conviction. See May 3, 2017 Order Vacating
Conviction, Sentence, and Restitution Order [Dkt. No. 231].
On June 15, 2017, Mr. Williams pled guilty to a superseding
information charging him with one count of involuntary
manslaughter under 18 U.S.C. § 1112(a). See
Plea Agreement [Dkt. No. 237]. That same day, the Court
sentenced Mr. Williams to eight years in prison for
involuntary manslaughter and eight years in prison for
witness tampering, those sentences to run concurrently,
followed by three years of supervised release. See
Amended Judgment of June 16, 2017 [Dkt. No. 241] at
3.[1]
The Court deferred determination of the amount of restitution
pending further briefing from the parties. See id.
at 8.
In
October 2017, the United States filed a motion for
restitution [Dkt. No. 246]. It asked the Court to order
restitution under the Mandatory Victims Restitution Act
(“MVRA”), 18 U.S.C. § 3663A, in the amount
of $756, 000 - the full amount of Sergeant Johnson's
future lost income - based on the same evidence and expert
analysis considered by the Court in its prior restitution
opinion. See Motion for Restitution at 14; see
also Amended Judgment of June 16, 2017 [Dkt. No. 246] at
15; United States v. Williams, 946 F.Supp.2d at
117-19. In the alternative, the United States argued that the
Court has discretion to award the same amount of restitution
under the Victim and Witness Protection Act
(“VWPA”), 18 U.S.C. § 3663. See
Motion for Restitution at 12-13. Mr. Williams responded that
the MVRA does not apply in this case because it does not
cover involuntary manslaughter. See Supplemental
Memorandum in Opposition to Government's Motion for
Restitution [Dkt. No. 258]. As to the VWPA, Mr. Williams
argued that the VWPA does not authorize restitution based on
future lost income and that, even if it did, the Court should
decline to award restitution in an amount greater than $15,
000 in light of his indigent status. See id.
On
January 8, 2019, the Court issued an opinion in which it
concluded that involuntary manslaughter under 18 U.S.C.
§ 1112(a) is not categorically a crime of violence under
18 U.S.C. §16(a) because involuntary manslaughter can be
committed either with or without the use of physical force.
See United States v. Williams, 353 F.Supp.3d 14,
20-21 (D.D.C. 2019). For that reason, the Court found that
the MVRA does not apply to this case, and because the MVRA
does not apply, the Court has discretion under the VWPA to
decide whether to award restitution. See id. at 21.
Most importantly, the Court concluded that because the VWPA -
unlike the MVRA - gives the Court discretion to decide
whether to impose restitution, it also necessarily
gives the Court discretion to determine in what
amount to order restitution. See id. at 26-27.
The Court rejected the “all-or-nothing” approach
of the Fourth, Sixth, and Seventh Circuits, stating:
“Courts must be able to set or reduce the amount of
restitution based on the defendant's present and future
economic circumstances when determining both whether to order
restitution and in setting the amount of restitution.
Otherwise, there is little discretion left for courts to
exercise and no relevant distinction between the MVRA . . .
and the VWPA.” See id. at 26.
The
Court also concluded that the VWPA authorizes restitution for
the future lost income of deceased victims to their
survivors. See United States v. Williams, 353
F.Supp.3d at 21-23. And it found - based on the same evidence
and expert analysis considered by the Court in its earlier
restitution opinion in this matter, see United States v.
Williams, 946 F.Supp.2d at 117-19 - that the United
States had adequately demonstrated that the amount of
Sergeant Johnson's future lost income over the course of
his lifetime was approximately $756, 000. See United
States v. Williams, 353 F.Supp.3d at 24.
Having
decided that it would order restitution, the Court turned to
the remaining question: how much restitution to award
Sergeant Johnson's survivors. As stated, Mr. Williams
suggested that $15, 000 was an appropriate amount given his
indigency, but there was little factual support for that
proposal. See United States v. Williams, 353
F.Supp.3d at 27-28. The Court noted in its opinion that the
burden of demonstrating the financial resources and earning
ability of a defendant and the financial resources, earning
ability, and needs of the defendant's dependents is, by
statute, on the defendant, and the defendant must make that
showing by a preponderance of the evidence. See 18
U.S.C. § 3664(e); see also United States v.
Williams, 353 F.Supp.3d at 27. Because the declaration
submitted by Mr. Williams was insufficient to meet that
burden, the Court offered Mr. Williams “one final
opportunity” to submit supplemental briefing and expert
evidence regarding his financial resources, his future
earnings ability, and the financial needs and earnings
ability of his dependents. See United States v.
Williams, 353 F.Supp.3d at 28.
On May
8, 2019, the defendant submitted a supplemental motion
regarding restitution [Dkt. No. 269], accompanied by the
expert report of Dr. Shireen Meer, an economist and Associate
Director in the Washington office of the Berkeley Research
Group, an international economic consulting firm.
See Expert Report of Dr. Shireen Meer (“Dr.
Meer Report”) [Dkt. No. 269-1]. On June 26, 2019, the
United States filed a notice [Dkt. No. 270], informing the
Court that it had no response to the defendant's expert
report other than to rely on its earlier arguments and
assertions, along with the testimony and expert report
previously submitted.
The
Court has thoroughly reviewed the expert report of Dr. Meer,
who clearly is eminently qualified on the basis of education,
training, and experience to opine in this matter. The Court
also finds Dr. Meer's methodology reliable. As for the
bases for Dr. Meer's opinions, the Court generally finds
them reasonable. It does, however, question whether all
relevant information was taken into account in paragraphs 14
and 15 of the expert report. There, Dr. Meer reports that
because of certain nerve damage to Mr. Williams' hands -
without specifying the extent of the damage - he can no
longer use his technical skills and years of experience as a
mechanic and thus has enrolled in barber school. See
Dr. Meer Report at ¶14. Dr. Meer goes on to assume that
Mr. Williams, now 41 years old, will be employed as a
full-time barber for approximately twenty-three years.
See id. ¶13. That assumption notwithstanding,
Dr. Meer then finds that Mr. Williams may not be able to find
full-time employment as a barber because of his felony
conviction and because race “plays a non-trivial effect
in further decreasing employment opportunities for formerly
incarcerated persons of the African American race.”
See id. ¶15. Dr. Meer also discounts the
estimate of future earnings from barbering to account for Mr.
Williams' disability, see Dr. Meer Report at
¶16, and notes that Mr. Williams pays child support for
his fifteen-year-old daughter of $2880 annually, which will
continue until 2022, when Mr. Williams' daughter will
turn eighteen. Id. ¶18. At the same time, Dr.
Meer reasonably added the amount Mr. Williams receives in
disability income and - looking forward twenty-plus years -
Social Security income. See id. ¶17. Dr. Meer
then presents two alternative scenarios: In the first, she
applies a 20 percent discount rate to the value of Mr.
Williams' future potential earnings, less personal
consumption; in the second, she applies an 11.5 percent
discount rate. See id. ¶21. In the first
scenario, she finds that the net present value of Mr.
Williams' future earnings (less personal consumption) to
range from ($17, 760) to $22, 379. See id. ¶22.
In the second scenario, she calculates a range to be between
($8, 686) and $56, 304. See id. ¶23.
The
Court itself previously recognized that Mr. Williams will
“undoubtedly face difficulty finding employment due to
his criminal conviction.” United States v.
Williams, 353 F.Supp.3d at 27. It also noted, however,
that his education, vocational skills, and work history
“indicate that he could earn sufficient income in the
future such that he can pay restitution in an amount greater
than $15, 000. . . . He graduated from high school and
enlisted in the United States Air Force, where he served for
almost nine years.” See id. at 27-28. The
Court also noted his expertise as a jet engine mechanic and
the fact that he was then qualified to repair helicopters and
possesses skills in electrical and hydraulic systems, as well
as in turbine and diesel motors. See id. at 28.
Thus, the Court concluded that Mr. Williams “[had]
some, perhaps significant, earning potential.” See
id. While the Court was unaware of the nerve damage to
his hands - and is still unaware of the severity of that
damage - the Court is not convinced that all of those years
of Mr. Williams' experience as a mechanic and his
knowledge of electrical and hydraulic systems and turbine and
diesel motors necessarily must go for naught and that his
only option is to become a barber, as Dr. Meer contends.
See Dr. Meer Report ¶14.
In
light of all of the facts and evidence before it, and in view
of the discretion this Court has already concluded it has
under the Victim and Witness Protection Act, the Court
concludes that Mr. Williams clearly does not have the ability
to pay anything close to the $756, 000 the government
requests. Nor is it convinced that Mr. Williams' only
employment option is to work as a barber. Nevertheless, in
view of Dr. Meer's expert report and the other
information before it, the Court finds that a fair and
reasonable amount of restitution should be calculated by
beginning with the high end of Dr. Meer's second scenario
- $56, 304 - and then ratcheting it up slightly to take
account of the expertise Mr. Williams gained while serving in
the United States Air Force and the strong possibility that
he will at some point find employment other than barbering.
Accordingly, the Court will order restitution to Sergeant
Johnson's estate in the total amount of $100, 000 to be
paid at a rate of $250 per month.
A
separate order consistent with this Memorandum Opinion will
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