Court awards nominal restitution under § 2259

In United States v. Aumais, 656 F.3d 147 (2d Cir. 2011), the Second Circuit reversed restitution in a child pornography possession case. Aumais had no connection to the victim, "Amy", in the pornography nor did she know of his existence. Amy's impact statement made no mention of Aumais and was written before he was arrested. The court held that "where the Victim Impact Statement and the psychological evaluation were drafted before the defendant was even arrested--or might as well have been-- ... the victim's loss was not proximately caused by a defendant's possession."

The same photos arose in a recent Ohio case, United States v. Klein, 2011 U.S. Dist. LEXIS 129761 (S.D. Ohio 2011). Like in Aumais, the 2008 Victim Impact Statement was presented although Klein was arrested in 2010. Here, the government argued that these "images are being found almost on a daily basis and it would be unreasonable for the victims to have to update their request for restitution daily." While the court reasoned that there was no probable cause to show calculable damages caused by Klein, the court awarded $5,000 in nominal damages which "are designed to vindicate legal rights 'without proof of actual injury.'"

The Klein court is not alone in finding that 18 U.S.C. § 2259 requires a nominal damage award were proximate cause does not exist. See United States v. Church, 701 F.Supp.2d 814 (W.D. Va. 2010). Read Aumais to better understand the § 2259 circuit split on whether proximate cause is required or whether general causation is allowed in issuing restitution.