District court finds government "failed to meet its burden through and through" in child pornography restitution case

In United States v. Loreng, No. 12-132 (D.D.C. 2013), the district court denied an award of restitution to child pornography victims "Amy" and "Cindy" after strongly criticizing the prosecution.

The way in which restitution is awarded in child pornography cases has been addressed by most circuits, including the D.C. Circuit. The predominant issues are whether a defendant is required to have proximately caused harm to the victim and whether the defendant is liable for the entire damages or only a fraction. See my previous posts on the issue for more background.

In Loreng, the court addressed the many issues at length and found issue with many issues, most notably how both parties wanted to calculate restitution.

• Prosecution: "[D]ivide the total loss (past, present, and future) resulting from the continued viewing of the images by the number of individuals (apprehended or not) who engaged or will engage in the act of viewing an image... [and] deviate upward [as necessary]."
• Defense: "Loreng would require in each case a victim statement reflecting knowledge of the particular defendant, a psychological report evaluating a victim's response to each defendant, an economic report produced after the defendant's acts, and an expert report from a statistician that takes into account a multitude of factors, including each defendant's offender characteristics.... [T]he court doubts that anything this costly and unworkable is required."

Ultimately, the court denied restitution and concluded:

Regardless of what a perfect record would reveal in this case, the fact remains that the record here is anything but perfect. The government has failed to make a showing as to critical questions. It has failed to establish that Loreng viewed or even possessed an image of either Amy or Cindy; it has failed to support the total economic loss figure for Amy; and it has failed to establish the number of defendants convicted for possessing or distributing Amy's images. For both Amy and Cindy, the government has provided evidence that falls far short of "reasonable certainty" as to the amount of their losses from Loreng's conduct. The government failed to meet its burden through and through—and not for lack of warning by the Court. Accordingly, the Court must award no restitution in this case.