Judge's restitution order is overturned

A Utah federal judge had no jurisdiction to order a criminal defendant to pay nearly $450,000 in restitution to the family of a young man killed by the drunken woman, a federal appeals court has ruled.

U.S. District Judge Paul Cassell originally ordered Levangela Bedonie to pay just $7,300 in funeral expenses, but he revoked the order one week later to revisit whether Bedonie could be held responsible for her victim's future lost income.

After several hearings and hiring his own expert economist, Cassell entered a $446,665 restitution order in the case.

But in its Monday ruling, the 10th U.S. Circuit Court of Appeals overturned the half-million dollar order, finding that Cassell erred by reopening the case entirely on his own, absent any request from prosecutors, probation officers or the victim's family.

"The speculative nature of Mr. (Brian) Johnson's alleged losses did not become an issue until after the district court revoked its judgment," the decision states. "Nothing in (federal statute) authorizes the district court, on its own motion, to reopen a restitution order after sentencing."

Because the appeal was resolved on procedural grounds, the 10th Circuit did not reach the argument that the Mandatory Victims Restitution Act of 1996, which Cassell cited as his authority for ordering the restitution, does not allow for such an award.

"It's a very narrow decision with regard to jurisdiction under a particular rule. It doesn't have much to do with restitution," said Scott Wilson of the Utah Federal Defender Office.

"We had a dozen other issues with regard to how (Cassell) calculated restitution and whether restitution is appropriate in this type of case, which the court just didn't reach because of its jurisdictional ruling," Wilson said. "I suspect that (those issues) may be left for another day."

In the same May 2004 decision, Cassell also ordered another defendant in an unrelated case to pay the future lost income for his victim — his 3-month-old daughter. The judge entered a restitution order of $325,751 in the case of Redd Rock Serawop, who was convicted in the child's November 2002 death.

Serawop's attorney also appealed the restitution order, but the 10th Circuit, in a decision released earlier this month, overturned Serawop's conviction on other grounds without reaching the restitution issue.

Federal prosecutors have indicated they will retry Serawop, making it likely that the question of the appropriateness of ordering large amounts of restitution for a deceased victim's future lost earnings will come up again.

Although the court did not directly address it, G. Fred Metos, Serawop's court-appointed attorney, said it appears the appeals court has some reservations about Cassell's actions in the two cases.

"They seem to give some hints that this type of restitution is open to serious question," Metos said.

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