2nd Circuit reverses decision to hold defendant jointly and severally liable for child pornography victim's losses

In United States v. Lundquist, No. 11-5379 (2d Cir. 2013), the Second Circuit held that a child pornography possessor could not be held jointly and severally liable for harm to the victim.

Lundquist was convicted of receipt and possession of child pornography. Among the images in his possession was one of the "Amy" series. Amy was victimized by her uncle and has sought for years to obtain restitution from those who continue to download images of her. Her total damages have been calculated at $3,381,159.

Courts have debated many issues regarding restitution under the federal child pornography statutory scheme, including whether proximate cause is required and how the restitution is calculated. Some jurisdictions hold possessors jointly and severally liable (in this case, meaning they can be held liable for the entire amount of damages) while others assess damages at only a fraction of the total (such as dividing it by the total number of defendants convicted for possessing images of the same victim).

In Lundquist, the district court held that the defendant should be ordered to pay the full amount of Amy's losses. The Second Circuit, however, found that the defendant was not the cause of "all of [Amy's] losses" as the $3 million is so high "primarily because there are so many people viewing her images."

The appeals court, however, acknowledged the benefits of joint and several liability, but suggested instead bringing a civil suit rather than seeking mandatory restitution.

We understand, as a policy matter, why joint and several liability is an appealing option in this type of case. Joint and several liability would permit the victims of child pornography to collect their full losses from any well-heeled defendant, rather than require them to pursue defendants who may be, or later become, insolvent. Such an approach would also place the onus on guilty defendants to seek contribution from each other, rather than require the innocent victims to request restitution from each defendant.

We sympathize with these policy arguments and acknowledge that joint and several liability might be appropriate if Amy had brought a civil tort action against those who downloaded images of her abuse.

The Second Circuit also held that several types of losses could not be included in the total calculation. First, "Lundquist cannot be ordered to make restitution for harm that Amy's uncle's conduct proximately caused." Also, because the defendant obtained the images of Amy in 2010, he could not be held liable for therapy costs "incurred in 2009 or earlier."

Read more about restitution for Amy in previous Cybercrime Review posts.

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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.

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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.

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Second Circuit reverses restitution award in CP case, explains proper formula for calculating the amount

In United States v. Hagerman, No. 11-3421-cr (2d Cir. 2012), the Second Circuit reversed and remanded an award of restitution to "Vicky", a victim of child pornography. The defendant was ordered to pay the remaining balance of Vicky's damages, but the Second Court found that he was only liable for the amount portioned to him after dividing the total damages by the total number of convicted defendants.

The defendant had been convicted of receipt and possession of child pornography and was sentenced to 96 months in prison, a life term of supervised release, and a $200 special assessment. Additionally, finding that the defendant was jointly and severally liable Vicky, the district court ordered him to pay restitution of $975,917.64. On appeal, the defendant make multiple objections with regard to his sentence and the restitution order.

The Second Circuit is one of the majority circuits which holds that a defendant must have proximately caused the harm to the victim in order to be ordered to pay restitution (read more about this issue and the circuit split here). The court found that standard to be met here as:

Vicky had actual knowledge of Hagerman's offense conduct as her representative had informed her of this action, and that her knowledge that Hagerman was among those who had downloaded her picture had caused her actual and ongoing psychological harm, as demonstrated in her victim impact statement and psychological evaluations.

However, where the Second disagreed with the trial court was in the amount of the damages. The total harm alleged to have been caused to Vicky is $1,224,697.04. A total of $248,779.40 has been collected from other defendants, "leaving $975,917.65 unpaid and recoverable." The district court found the defendant liable for the entire amount of the remaining damages despite precedent holding that joint and several liability should not apply in this situation.

The correct calculation, the Second Circuit determined, was to divide the entire amount of damages by the number of defendants who have been "successfully prosecuted" for possessing the images of Vicky. Thus, the defendant should have been ordered to pay restitution in the amount of $8,388.31 (which is $1,224,697.04 divided by 146 (the number of convicted defendants)).

Of course, the difficulty in imposing such a formula is that there is no way to know how many defendants there will be when the first case is decided. Thus, the calculation plays out in a weird way throughout the process. The first defendant would be liable for the entire amount, the second for $612,348.52, and the third for $408,232.35. Suppose 500 defendants are ultimately convicted - number 500 will only be liable for $2,449.39. However, victims cannot recover more than 100% of their injuries. Thus, if the first defendant is able to pay the entire amount, no future defendant would be ordered to pay any money.

To you non-lawyer folks, do know that an award of restitution is not to be considered a punishment for committing a crime; rather, the amount is intended to "make them whole" - that is to provide the financial resources necessary to put the victim in the same position as if the injury had not happened, similar to a tort lawsuit after a car wreck.

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Seventh Circuit develops rules for CP restitution cases, requires classification of offenders for calculation

In United States v. Laraneta, No. 12-1302 (7th Cir. 2012), the Seventh Circuit held that child pornography defendants who simply possessed images are only liable for restitution based on the limited amount of damage they caused. Distributors, however, are liable for the entire damages. Further, defendants may not seek contribution from others.

The defendant had pled guilty to seven counts related to child pornography. The defendant was sentenced to thirty years in prison and ordered to pay over $4 million in restitution to two victims.

The Seventh first examined whether child pornography victims can intervene in the criminal proceeding itself. Finding that it "would be a recipe for chaos," the court held that victim intervention is best left for an appeal.

In his appeal, the defendant argued that the district court's award of restitution to "Amy" and "Vicky" was erroneous. Amy and Vicky are two victims of child pornography, and the two have received restitution of varying amounts from cases around the country. Vicky's losses total nearly $1.25 million (and she's recovered just over $250,000), and Amy's losses are calculated at over $3 million (and she's recovered about half). The court ordered the defendant to pay the entire balance of those losses, and he argued that it's not his responsibility.

Courts have struggled with the federal statute that allows restitution for child pornography victims - 18 U.S.C. § 2259(c). Of all the circuits that have dealt with the issue, all but one (the Fifth) have determined that the defendant must have proximately caused the victim's losses in order to be required to pay restitution. Courts have further struggled with what exactly that means.

The Seventh Circuit, deciding to remand for a redetermination of restitution by the trial court, suggested that "it is beyond implausible that [Amy and Vicky] would have suffered the harm they did had [the defendant] been the only person in the world to view pornographic images of them." As such, on remand, the court must consider which portion can be allocated to the defendant. However, if the court labels the defendant a distributor, he should be liable for the entire amount of the damages.

Amy and Vicky suggested that imposing joint liability is fair because the defendant can seek contribution from other viewers. Posner opined such an approach to be "extraordinarily clumsy," considering the assets of most prisoners and "the bother of awarding contribution rights to hundreds of prison inmates. We have enough inmate suits as it is."

Thus, the Seventh's rules for restitution are:

1. Subtract restitution payments already received in other cases.
2. Determine the defendant's status. If he is simply a viewer, determine what of the damages are a result of his acts. If he is a distributor, the defendant is liable for the entire remaining loss.
3. The defendant is not entitled to contribution from other offenders.
4. Victims may not intervene in district court.

The defendant also appealed his 30-year sentence (including a 10-year consecutive possession charge), arguing that the length was inappropriate and it should not have been consecutive. These arguments were struck down, of course.

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Fifth Circuit reissues en banc CP restitution opinion, retains substance of the opinion

In October, the Fifth Circuit, in an en banc opinion, held that a victim of child pornography is not limited to recovery for losses proximately caused by the defendant. In re Amy Unknown, No. 09-41238 (5th Cir. 2012) (en banc). Under the opinion, victims can be awarded the full amount of damages from any individual defendant - even if he only came into possession over the Internet. The decision, which I discussed in a previous post, vacated and remanded the combined cases for the district court to reconsider damages.

Each had been heard by different panels of the court individually. When the second case was heard, the panel agreed with the prior precedent, but wrote a special concurrence questioning the prior decision and suggesting the opinion be taken up en banc. The two cases were heard together by the full Fifth Circuit.

Last week, the Fifth Circuit withdrew its October opinion, choosing to vacate and remand one of the cases and to affirm the other. In re Amy Unknown, No. 09-41254 (5th Cir. 2012) (en banc). The court had remanded both in the October opinion, but in one of the cases, the government had not actually appealed the sentence which had awarded only partial damages. Therefore, the issue could not be remanded because it had not actually been appealed.

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Sixth Circuit affirms restitution award against expert witness who morphed stock images into CP for jury exhibit

In Doe v. Boland, No. 11-4237 (6th Cir. 2012), the Sixth Circuit held that an expert witness who morphed images of children into child pornography in order to show the ease of such editing to a jury was guilty of possession of child pornography. As such, he was ordered to pay restitution of $300,000 to the victims.

The defendant had downloaded images of two children from a stock photo website and edited the images "to make it look like the children were engaged in sex acts" as part of his preparation for testimony at a child pornography trial. His actual intent was to show the jury how easily such images could be modified and to argue that the defendants on trial may not have known the pornographic images they were viewing were actually child pornography.

After his presentation of the images, the FBI began an investigation, and he was charged with possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). The district court held that he did not have to create these morphed images to prove his point and that his actions were not protected by the Constitution or statute. Thus, damages of $150,000 were awarded to each of the two victims. (Read our earlier post about this decision here.)

The Sixth Circuit first held that the § 2252A(f) action for damages allows a court to award "compensatory and punitive damages" and does not require an "exact amount of ... damages." Therefore, the award of $300,000 was permissible.

Secondly, the production of the images was not protected by the First Amendment, and it was immaterial that the images were "never displayed ... outside of a courtroom" or transmitted electronically. "The creation and initial publication of the images itself harmed ... [the children], and that is enough to remove Boland’s actions from the protections of the First Amendment."

In conclusion, the court wrote:

This $300,000 award undoubtedly amounts to tough medicine for Boland.  When he created morphed images, he intended to help criminal defendants, not harm innocent children.  Yet his actions did harm children, and Congress has shown that it “means business” in addressing this problem by creating sizeable damages awards for victims of this conduct.... Nor was this Boland’s only option for trying to help his clients.  He could have shown the difficulty of distinguishing real pornography from virtual images by transforming the face of an adult onto another, or inserting a child’s image into an innocent scene.  If he felt compelled to make his point with pornography, he could have used images of adults or virtual children.  Instead, he
chose an option Congress explicitly forbade: morphed images of real children in sexually explicit scenes.  That choice was not protected by the First Amendment, and the children therefore are entitled to the relief Congress offered them.

Thus, the trial court's decision was affirmed. The case was first heard by the Sixth Circuit in 2011. In that earlier decision, the appeals court reversed and remanded a trial court decision holding that Congress intended for there to be an exception for expert witnesses.

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En banc Fifth Circuit continues circuit split with CP restitution, holds proximate cause not required for loss calculation

The Fifth Circuit recently decided en banc to continue a circuit split concerning restitution to child victims of images of child pornography. In re Amy Unknown, No. 09-41238 (5th Circuit 2012) (en banc). As discussed previously on this blog, the Fifth Circuit was the odd man out on the issue, with a panel having held that the statute's allowance for losses is not limited to those proximately caused by the defendant. In light of conflicting opinions in other circuits, the Fifth took up the case en banc.

Other circuits have held that 18 U.S.C. § 2259's "proximate result" requirement limits awards to losses that are a proximate cause of the defendant's acts. Therefore, a defendant who has only viewed the images may only be found liable for the damage he proximately caused the victim.

The Fifth's decision, however, allows courts to award restitution in the full amount of the victim's losses (including medical services, therapy, child care, lost income, attorney's fees, and other expenses). The victim in this case (the "Amy series") has previously been determined to be entitled to approximately $3.4 million. The appeals court held that the district court must order restitution in the full amount.

Thus, the district court decision was vacated and remanded.

A concurring/dissenting opinion of four judges argued that district courts should be given discretion in the amount and not be required to impose the full amount when multiple violators contributed to the victim's losses.

For other posts related to this issue, visit our restitution label.

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Fourth Circuit remands Vicky series restitution award

In a case concerning the Vicky child pornography series, the Fourth Circuit held that a child pornography victim is entitled to restitution in an amount "only for harm that he proximately caused." On remand, if the district court determines that proximate cause is established, they will then calculate "the quantum of loss attributable to [the defendant] for his participation in Vicky's exploitation."

The victim had suggested that general cause, rather than proximate cause, is the proper structure. This, the Fourth Circuit held, "would expand the availability of restitution for even the most attenuated damages."

At sentencing, the district court had ordered restitution of $305,219.86, which represents the total amount of Vicky's loss to date that has not already been paid by other defendants.

The case is United States v. Burgess, 2012 U.S. App. LEXIS 14152 (4th Cir. 2012). Many circuit courts have already dealt with this issue (read more here).

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District court denies restitution to child pornography victim because government failed to prove damages

A federal district court has denied an award of restitution to "Cindy," an individual depicted in child pornography. United States v. Veazie, 2012 U.S. Dist. LEXIS 57772 (D. Maine 2012). In the past, Cindy has been awarded restitution twelve times with awards ranging from $1,000 to $5,000, and she is seeking to recover approximately $71,000 total.

The court first determined that the defendant was the proximate cause of Cindy's harm. However, "[j]oint and several liability is inappropriate" because he did not cause all of her injuries, and it is possible that it can't be "imposed upon defendants in separate cases." The government did not present any specific evidence of damage caused by the defendant. "[T]he Government [has not] shown that Veazie even viewed one image of Cindy or compared the conduct of Veazie with the conduct of the defendants in the twelve other cases involving restitution awards to Cindy."

Because the government did not provide a method for determining damages caused by the defendant, the court was unable to award restitution. "[C]ourts may not speculate, and the Court cannot do so here."

For a more detailed look at how courts award restitution in child pornography cases, click here.

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NY court orders $3M in restitution to CP victim

A New York federal court has ordered a defendant convicted of child pornography crimes to pay restitution of $3,381,159 to the victim. (United States v. Lundquist, 2011 U.S. Dist. LEXIS 153971 (N.D.N.Y. 2012)). Many courts have only ordered defendants to pay a portion of the damages, but this court found "it is entirely fair, reasonable and appropriate to hold Defendant liable for payment of the full amount of restitution (rather than to apportion liability among all the individuals in question to reflect the level of contribution to Amy's loss and economic circumstances of each individual)."

Also worth noting is that before that holding, the court found three ways in which the defendant could be ordered to pay restitution. The first, under 18 USCS § 2259 allowed for defendant to pay a 1/113 share of the total damages of $3,381,159 (113 because that was the number of defendants convicted for possessing images of this victim). Alternatively, an award of $150,000 was permitted under Marsha's Law. Also, $5,000 may be awarded under 18 U.S.C. § 2259 as nominal damages.

To see how several circuit courts have addressed restitution in other child pornography cases, click here for previous posts.

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1st Cir. affirms restitution order to CP series victim "Vicky"

The First Circuit held that a distributor of child pornography may be ordered to pay restitution to the child victim portrayed in those images (United States v. Kearney, 672 F.3d 81 (1st Cir. 2012)).

Federal courts have long disagreed as to the requirements of a restitution order under 18 U.S.C. § 2259 for child pornography. These cases often concern a distributor of a pornography series (referred to by aliases such as "Amy" or "Vicky"), and the issues the court must address are (1) whether the child portrayed in the images is a victim, and (2) whether the defendant proximately caused the victim's damages. Decisions on these issues have resulted in a circuit split (read more here, here, and here), and the Supreme Court has denied cert on the issue (discussed here). However, it is important to note that the Fifth Circuit, which is the odd man out, recently decided to rehear its case on the subject en banc (United States v. Unknown (In re Unknown), 2012 U.S. App. LEXIS 1514 (5th Cir. 2012) (vacating Paroline)).

In Kearney, the First Circuit addressed these issues in a child pornography possession and distribution case involving the "Vicky" series. The court first found that "Vicky is plainly a victim of Kearney's crimes" as "[t]he  pornography's continued existence causes the child victims continuing harm by haunting the children in years to come." On the probable cause issue, the court held:

We hold that the proximate cause requirement was satisfied here, because Kearney's actions resulted in identifiable losses as outlined in the expert reports and Vicky's victim impact statements. ... We do not suggest that in all instances where there is a victim within the meaning of the statute, the victim is entitled to restitution....

The court also upheld the calculation of the restitution amount of $3,800, "which was arrived at by averaging the awards Vicky had received in thirty-three other restitution cases, after discarding the highest and lowest values awarded."

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6th Cir. vacates computer forfeiture, restitution award

The Sixth Circuit vacated on the issues of forfeiture and restitution in a child pornography possession and production case. United States v. Evers, 669 F.3d 645 (6th Cir.).

After the defendant's son reported him to police for alleged sexual abuse of the defendant's niece, police executed a search warrant to find photographs the defendant had taken of the girl. Officers seized two computers, a digital camera, and other items. In relevant part to the appeal, the trial court ordered forfeiture of the seized items as well as restitution to the son (who was acting as the niece's guardian).

The trial court awarded $1,640 in restitution including $1,500 for lost wages and $140 for child care expenses under 18 U.S.C. § 2259. The defendant argued on appeal that (1) only the victim's lost income is recoverable, (2) the lost wages were not proximately caused by the offenses, and (3) the child care award is not justified. The Sixth Circuit held that the son was a victim under the statute and can recover lost income as it was proximately caused by the defendant. The award for child care was vacated, however. The defendant had been providing free child care for the victim which would not have been free otherwise, and thus, the child care expenses were not proximately caused by the crimes.

On appeal, the Sixth Circuit also vacated the forfeiture of one of the computers because both had not been used for child pornography. Property subject to forfeiture "must bear a 'sufficient nexus' or 'substantial connection' to the underlying offense."

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11th Circuit addresses 22 issues on appeal in international child pornography ring case

"If '[a]ll the world's a stage' as Shakespeare wrote, this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography," wrote Eleventh Circuit Judge Fay in an opinion concerning an international child pornography ring. The case, United States v. McGarity (669 F.3d 1218 (11th Cir. 2012)), was an appeal from multiple defendants convicted of taking part in a child exploitation enterprise involving 64 individuals and over 400,000 images. To become a member of the group, users had to pass a series of tests involving child pornography with the assumption being that law enforcement would be legally prohibited from following suit. The group encrypted all postings and used many other means to secure their activities. An informant turned over his account to police, allowing them to discover the identity of many others.

The defendants were charged with 40 counts and raised 22 issues on appeal. Among the findings, the court held:

• The child exploitation enterprise (CEE) statute, 18 U.S.C. § 2252A(g), was not unconstitutionally vague and overbroad.
• Charge of statutory obstruction of justice under 18 U.S.C. § 1512(c) was insufficient because the indictment did not provide sufficient notice of the factual predicate for the charge. Therefore, the conviction was vacated.
• Prosecutor closing including "The victims in these videos and images, they're the children. They're our daughters and granddaughters, neighbors, friends. Sometimes at night when I'm sitting in my house and everyone is asleep and even the puppy is down, it's awfully quiet, I can't fall asleep, sometimes you can hear the crying" was in error, but did not affect a different outcome.
• The court should have instructed the jury that the CEE statute required the jury to be unanimous in determining predicate acts to show a CEE. However, because the jury convicted the defendants of three counts that could serve as predicates, the conviction stands. (One defendant, however, was only convicted of two offenses that can serve as predicates, and therefore his conviction was reversed.)
• Two counts violated double jeopardy as Count Two (conspiring to commit certain acts underlying the CEE) was a lesser-included offense of Count One (knowingly and willfully engaging in a CEE).
• Defendants who received a life sentence plus other sentences totaling 2400 months was within the guidelines and not grossly disproportionate.
• Defendant who attempted to wipe his hard drive properly received an obstruction enhancement because although no proof was shown as to whether he was successful, the evidence clearly showed his attempt.
• Defendant properly received an enhancement for receipt of a thing of value in exchange for posting child pornography. The nature of the ring allowed him to receive more child pornography as a result of his posts. (See a prior post on this topic here.)
• Restitution award for "Amy" series was improper (prior discussion here). The proof of proximate cause is necessary as it would otherwise impose strict liability on child pornographers. The issue was remanded for a full hearing as to proximate cause.

The dissent only differed by arguing that the statutory obstruction of justice charge was sufficient.

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Restitution under § 2259 awarded by NY District Court

Several recent court opinions have dealt with restitution damages under 18 U.S.C. § 2259, and you can find earlier postings on this blog regarding these cases here.

In United States v. Hagerman, 2011 U.S. Dist. LEXIS 141231 (N.D.N.Y. 2011), the court addressed these same issues in a lengthy opinion. Here's a brief (as brief as I could make it!) outline of the arguments:

• Evidentiary hearings are not necessary to determine restitution under § 2259.
• The victim of the child pornography was such because:
• The materials are a permanent record of the harm.
• The images are an invasion of the child's privacy.
• The child pornographer instigated an economic motive in the CP industry.
• The statute's use of semicolons (instead of commas) and applying "the rule of the last antecedent," there is no proximate cause requirement for the first five losses (lost income, attorneys' fees, medical care, etc.).
• Also, the statute is remedial in nature and doesn't have the goal of punishing the "defendant for harm that he proximately caused."
• Despite the lack of need for proximate cause, it existed. The losses were reasonably foreseeable, and the losses and the defendant's actions had a direct causal connection.
• There is no requirement that the defendant know the victim.
• The injuries stem "from the fact that she did not know who was downloading" the images.
• Such a requirement would make it extremely difficult to grant restitution.
• The requirement would violate the "spirit" of the law (as it would require testimony).
• There is no need to precisely quantify the amount of harm the defendant caused.
• All of the losses were due to the victim's revictimization.
• Mathematical precision is not required to show causation. Even if it must be quantified, it need only be reasonably quantified. In this case, that amount is .68% (146 defendants have been identified with this series).
• Restitution amounts
• Future counseling expenses of $108,975 are reasonable and established.
• Education and vocational counseling needs of $147,830 are reasonable and established.
• Lost wages and benefits of $722,511 are reasonable and established.
• Attorneys' fees of $203,140 and out-of-pocket expenses of $42,241.04 are reasonable and established.
• The total amount should be offset by losses already recovered.
• The defendant is jointly and severally liable for the restitution. The payments should be tracked to ensure that the victim is not awarded "double recovery."

The opinion included many more sections and arguments than I mentioned here. If you are just learning about restitution under this Section 2259, it's a good place to start. Thanks, Judge Suddaby, for this excellent opinion on the subject.

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SCOTUS denies cert in case on CP victim restitution

The Supreme Court yesterday denied certiorari in Amy, the Victim in the Misty Child Pornography Series v. Monzel, 181 L. Ed. 2d 508 (2011) (an appeal from United States v. Monzel, 641 F.3d 528 (2011)) which could have resolved a circuit split regarding child pornography victim restitution.

In April, the DC Circuit denied that "Amy", a victim of child pornography that has been spread around the globe, was entitled to no more than nominal damages under Section 2259 and the CVRA.

The issue is whether defendants must pay only nominal damages or full restitution when they did not actually know the victim, but simply possessed images of them (and therefore were not the proximate cause of the victim's damages). The Second, Ninth, Tenth, Eleventh, and DC Circuits have each held that the defendant must be the proximate cause of the damages in order to be forced to pay restitution. The Fifth Circuit, however, has held otherwise.

Though most side with the circuit court plurality, several lower courts have awarded restitution to Amy in amounts up to $3,680,153 (U.S. v. Staples, 2009 WL 2827204 (S.D. Fla. 2009)).

In her impact statement, Amy wrote, "I am being exploited and used every day and every night somewhere in the world by someone. How can I ever get over this when the crime that is happening to me will never end? How can I get over this when the shameful abuse I suffered is out there forever and being enjoyed by sick people?” More than 700 claims of restitution have been filed on Amy's behalf, each seeking more than $3 million.

See other posts about restitution here.

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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.

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Expert witness ordered to pay victims for creating morphed CP

As part of his expert witness testimony, an Ohio attorney used photos from a stock image website to morph photos that digitally created the illusion of a child engaging in a sexual act. The argument was that if it was skillfully done, it would be difficult to tell if a person was truly in possession of child pornography.

Soon thereafter (in 2004), an investigation began, and FBI agents searched the attorney's home and vehicle. Ultimately, he was required to make a public apology in the Cleveland Bar Journal.

In 2007, the families of the children filed suit against him seeking civil damages as allowed under 18 U.S.C. § 2255 which are a statutory minimum of $150,000 per victim. The district court dismissed, finding that granting the relief would be counter to the defendant's Sixth Amendment rights, and that an Ohio statute provides "immunity from state child pornography prosecutions for expert witnesses." The Sixth Circuit reversed and remanded, holding that there is no exception for expert witnesses.

On remand, in Lora v. Boland, 2011 U.S. Dist. LEXIS 121572 (N.D. Ohio 2011), the district court found that he did not have to create these morphed images to prove his point and that his actions were not protected by the Constitution or statute. Therefore, the court awarded damages of $150,000 to each victim.

RELATED CASE: Released yesterday was a case that addressed mandatory restitution under 18 U.S.C. § 2259. In United States v. Fast, 820 F. Supp. 2d 1008 (D. Neb. 2011), a child pornography victim was awarded attorney's fees, medical and psychiatric care, occupational therapy and lost income.

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