District court finds CP restitution must be based on number of viewers rather than prior defendants

In United States v. Hollister, the district court held that a determination of restitution to child pornography victims requires the damages to be divided by a count of the total number of viewers of the images as opposed to the common divisor of total number of prior defendants. No. 12-40041 (D. Kan. 2013). The decision is based on the Tenth Circuit's decision earlier this month on the issue.

The defendant had been convicted of distribution of child pornography of the "Cindy," "Vicky," and "Jan-Feb" series of images. As is common with these images, the victims sought restitution from the defendant. (See prior discussions on CP restitution here).

In the Tenth Circuit, like all other circuits except the Fifth, the restitution statute is interpreted to require "a showing that a victim’s losses are proximately caused by the defendant’s conduct." However, unlike other circuits holding similarly, the Tenth recently specified an unusual way to make the calculation for restitution:

In certain situations dividing a victim’s total damages by the number of end-viewers of child pornography may be sufficient to satisfy a proximate cause standard. For instance, a district court may determine that the pool of a victim’s provable losses are roughly equally caused by multiple defendants. However, in this case the district court did not make factual findings as to whether the number of judgments was approximately equal to the number of end-users or whether Benoit caused approximately the same amount of damages as other end-users.

Here, the district court struggled with the Tenth's approach, which was at odds with a citation to a Ninth Circuit case referenced in the Tenth's decision. In order to make a calculation, the court reasoned, the government must show the total number of viewers of the images as opposed to just the total number of defendants. "[U]nder this approach, the number of viewers may be unknowable or so high that any given defendant’s share of the restitution would be meaningless."

Such a calculation does appear to be the best method for making the a fair judgment of restitution, but as the district court reasoned, it makes "the determination of a divisor in the restitution calculation much more difficult."

However, because the victims did not provide information fulfilling the proximate cause requirement, the award of restitution was denied.