T.S. ELLIS, III, District Judge.
Following a 3-day jury trial, Defendant Logan McCauley was convicted of one count of production of child pornography, in violation of 18 U.S.C. § 2251(a) & (e). On April 26, 2019, a fifteen (15) year sentence of incarceration was imposed on defendant — the mandatory minimum for his offense — as well as a five-year term of supervised release. At the time of sentencing, the government was not prepared to establish what losses defendant's criminal conduct caused the victim — N.C.
At issue now is the government's motion for restitution of $58,453.50 on behalf of N.C. Defendant opposes the imposition of restitution. Although the government's request for restitution is well beyond the 90-day deadline imposed by 18 U.S.C. § 3664(e), determining the amount of restitution proximately caused by defendant's offense is appropriate based on the Supreme Court's holding in Dolan v. United States, 560 U.S. 605 (2010). The government has not, however, satisfied its burden of establishing that the $58,453.50 in medical expenses that N.C. has incurred were proximately caused by defendant's offense. Accordingly, for the reasons set forth below and for the reasons stated from the bench at the January 10, 2020 hearing, the government's motion must be denied, and no restitution will be imposed.
The facts regarding this criminal prosecution are appropriately drawn from the presentence investigation report adopted by the Court and the parties' submissions regarding restitution.
Pursuant to 18 U.S.C. § 2259(a), restitution to child pornography victims is mandatory and required to compensate the victim for "the full amount of the victim's losses." 18 U.S.C. § 2259(a) and (b). The "full amount of the victim's losses" includes "any costs incurred, or that are reasonably projected to be incurred in the future, by the victim, as a proximate result of the offenses involving the victim." Id. at § 2259(c)(2). Those losses include: (1) medical services; (2) therapy or rehabilitation; (3) necessary transportation, housing, or child care expenses; (4) lost income; (5) attorney's fees; and (6) other losses proximately caused by the offense. Id. at § 2259(b)(3). In Paroline v. United States, 572 U.S. 434 (2014), the Supreme Court held that restitution under § 2259 is only proper "to the extent the defendant's offense proximately caused a victim's losses." Id. at 448.
Section 2259 is "issued and enforced in accordance with Section 3664," 18 U.S.C. § 2259(a), which provides that, if the victim's losses are not ascertainable by 10 days prior to sentencing, "the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing." 18 U.S.C. § 3664(d)(5). The government bears the burden of proving the victim's losses by a preponderance of the evidence. See 18 U.S.C. §§ 2259(b)(2), 3664(e).
In opposing the government's motion, defendant makes four arguments:
Defendant argues that the 90-day period from sentencing provided by statute has expired and therefore the government's motion is untimely. Here, the government was clearly unable to establish the amount of N.C.'s losses and the appropriate amount of restitution before expiration of the 90-day deadline imposed by § 3664(d)(5). See July 18, 2019 Notice at 1-2. Despite the inclusion of the word "shall" in § 3664(d)(5), the Supreme Court has held that "[t]he fact that a sentencing court misses the statute's 90-day deadline, even through its own fault or that of the Government, does not deprive the court of the power to order restitution." Dolan, 560 U.S. at 615.
Although it is a close question, given the similarities in the language at issue in the judgment in Dolan and the language in the J&C here as well as the fact that, pursuant to § 2259, restitution is mandatory, it appears that the 90-day deadline in § 3664 does not, in this case, bar consideration of restitution at this time. The government's motion here is therefore timely pursuant to Dolan. Accordingly, it is appropriate to determine what restitution, if any, is warranted here. In the future, however, it would be prudent for the government, which has the duty of seeking restitution and the burden of proving it, to request that the sentencing court make clear in the record that there is a finding that the victim is entitled to restitution and that only the amount remains at issue, which would eliminate the ambiguity present here.
Defendant argued that the offense of conviction — production of a 19-second video that was not distributed — cannot be said to have caused the victim nay harm. Opp'n at 16. Defendant's view of the offense of conviction is too narrow; the offense of conviction — production of child pornography — clearly includes abuse of a minor for which the minor is entitled to restitution, if restitution can be proved.
Neither defendant nor the government cites any caselaw as to whether production of child pornography involves abuse of a minor for which restitution is appropriate. There is, however, relevant and persuasive case law to the effect that the sex act, and any associated trauma, are part of the offense of conviction for producing that child pornography. Simply put, the cases sensibly recognize that for a production of child pornography offense, there can be no offense without a sexual exploitation of the child victim.
In United States v. Osman, 853 F.3d 1184 (11th Cir. 2017), the defendant, who was charged with several counts of production of child pornography, made an argument essentially similar to the argument defendant makes here. The Eleventh Circuit rejected this argument, and, in addressing whether the defendant caused the victim's losses under Paroline, the Eleventh Circuit held: "It is undisputed Osman triggered the `causal process' underlying the losses suffered by A.E. because he perpetrated the abuse, produced the child-pornography images of her, and disseminated them." Id. at 1190. Indeed, the Eleventh Circuit went further than merely affirming an award of future therapy based specifically on the "sexual abuse" that the victim suffered to state specifically that the restitution was necessary to cover therapy for "a child who was molested by her father." Osman, 853 F.3d at 1192.
In United States v. Danser, 270 F.3d 451 (7th Cir. 2001), the Seventh Circuit affirmed a restitution award of over $300,000 in a case where the pornographic images were never distributed, but the victim's therapist testified about the severe mental and physical trauma that the victim suffered as a result of the abuse that the defendant recorded in the child pornography. See id. at 453-56. Similarly, in United State v. Bour, No. 2:13-cr-36, 2015 WL 58761 (N.D. Ind. Jan. 5, 2015), the defendant documented his abuse of his victims, but did not distribute the images. There, the district court sensibly held that "[t]he fact that Defendant did not distribute the recordings of his abuse on the Internet does not negate a finding that the victims were indeed harmed." Id. at *6. Moreover, as the district court there recognized: "Defendant's assertion that children can only be harmed when pornography is distributed, rather than when the actual production and/or sexual abuse itself took place is ludicrous. Both the production of child pornography and the resultant distribution can cause children to be traumatized." Id. Indeed, the Supreme Court has recognized that "the use of children as subjects of pornographic materials is harmful to the psychological, emotional, and mental health of the child." New York v. Ferber, 458 U.S. 747, 758 (1982).
Production of child pornography can occasion a loss to the victim, so long as the loss can be proved, even where the images are not disseminated or viewed. The sexual act with a child that is documented in the video that forms the basis for defendant's offense of conviction is part of his offense conduct for purposes of restitution. Accordingly, in determining the appropriate amount of restitution, it is appropriate to consider not only any trauma or losses that may have resulted from the documentation of the sex act in the child pornography but also from the sex act with a minor itself.
Defendant next argues that N.C.'s need for therapy and trauma are the result not of defendant's offense, but of other factors. In this regard, defendant relies on N.C.'s history of running away and her difficulty in making healthy decisions as evidence of her prior trauma. Defendant argues that "she does not have these problems because of Logan." Opp'n at 15. This argument fails; a defendant may not prey on vulnerable populations only to avoid a restitution obligation because of the nature of his victim. In this regard, the law applicable to restitution holds that, consistent with tort law generally, a defendant takes his victim as he finds her and may owe restitution for treatment necessary to address losses that his conduct caused her.
Courts analyzing this question have held that a pre-existing mental condition does not bar restitution. In United States v. Crandon, 173 F.3d 122 (3d Cir. 1999), the defendant argued that he was not the proximate cause of a victim's losses because she had pre-existing psychological problems. The Third Circuit held, "[d]espite that reality, it was entirely reasonable for the District Court to conclude that the additional strain or trauma stemming from Crandon's actions was a substantial factor in causing the ultimate loss." Id. at 126. Similarly, the D.C. Circuit, in In Re Sealed Case, 702 F.3d 59 (D.C. Cir. 2012), affirmed a restitution order over a defendant's objection that "the district court did not properly take into account the fact that the four minors had been involved in prostitution or other traumatic events before their contact with [the defendant]." Id. at 201. Similarly, in United States v. Pearson, No.1:04-cr-340, 2009 WL 2383025 (N.D.N.Y. July 30, 2009), the district court imposed a restitution award based on "need for the drastically increased mental health interventions required after [the victim's] victimization by Defendant," despite her pre-existing need for counseling and medications. Id. at *3-4. In United States v. Neuhard, No. 15-cr-20425, 2018 WL 1556232 (E.D. Mich. Mar. 30, 2018), the district court held that "[i]t is well-settled that defendants take victims as they find them" and that the focus on the victim's family issues was unpersuasive. Id. at *3.
Thus, the sensible consensus among courts is that a victim's pre-existing condition does not prevent restitution from being imposed for trauma that aggravated a victim's pre-existing condition or caused additional losses, so long as those losses are proximately caused by the defendant's conduct. Accordingly, N.C.'s pre-existing trauma and the necessity of therapy or counseling to treat that trauma does not bar restitution for an aggravation of her condition that N.C. suffered as a proximate result of defendant's conduct.
Additionally, Paroline itself supports the result reached here. In Paroline, the victim — who used the pseudonym "Amy" — was sexually abused as a child and child pornography including her image was shared worldwide to thousands of different people. 572 U.S. at 440. It was therefore very difficult to establish what restitution should be awarded against any individual defendant who possessed child pornography containing images of Amy. Amy, like N.C., suffered from pre-existing abuse. Yet, the Supreme Court held that it would "produce anomalous results to say that no restitution is appropriate in these circumstances." Paroline, 572 U.S. at 457. Rather, "a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." Id. at 458.
In sum, defendant should not be permitted to evade mandatory restitution because his victim was part of a vulnerable population and had already suffered from extensive trauma. In such circumstances, as the Paroline Court recognized, the analysis narrows to examine what losses are associated with the harm caused by this defendant and this offense.
The government seeks a restitution award of $58,453.50. To support its request, the government attached four exhibits: (a) an undated, unsigned, and unsworn letter from Ashlee Heberger-Jividen a residential therapist with Crittenton Services, Inc.; (b) a collection of letters from the National Youth Advocate Program ("NYAP"); (c) an email from Crittenton Services Inc. regarding medical billing documents; and (d) account statements from Crittenton Services, Inc. Despite the delays requested by the government, the government has not: (1) requested an evidentiary hearing; (2) offered any testimony from any witness regarding the victim's losses; (3) offered any sworn statements, declarations, or affidavits regarding the victim's losses; or (4) provided any information about the persons providing the information included in Exhibits A-D. Thus, the record is not sufficient to establish proximate cause and the government's motion must be denied.
The government concedes that N.C. has "a history of adverse life experiences" and that a restitution award is limited to losses caused by defendant. Mot. at 3, 5. Yet, the letters from NYAP do not connect the treatment that N.C. received to defendant's offense. The letters speak generally of addressing N.C.'s trauma, but do not mention the defendant, this case, or even Virginia. See Exh. B. Moreover, the letters make clear that NYAP is providing family counseling to address "problems with family functioning," "high levels of conflict" within the family, and how N.C.'s unspecified "trauma" effected N.C. and her family. Id. The letters do not establish that the services NYAP are providing are related to trauma proximately caused by defendant in any way. Accordingly, the government has failed to meet its burden to establish proximate cause with respect to the services provided by NYAP. Additionally, it does not appear that the government is even seeking restitution for the services provided by NYAP or which may be provided by NYAP in the future. The government seeks a restitution award of $58,453.50 which only includes the amounts billed by Crittenton Services, Inc.
The government also fails to meet its burden to establish proximate cause for the $58,453.50 in services provided by Crittenton Services, Inc. While the government correctly points out that courts have held that evidence that "bears `minimal indicia of reliability'" may be used to support a restitution award,
Moreover, Ms. Heberger-Jividen's letter does not even refer to the unverified, unsworn account statements that are attached as Exhibit D or attempt to explain the services to which the ten pages of billing entries relate. In fact, there is no information in Exhibit D or otherwise in the record to explain for what services any of the billing entries are made. It is clear from the entries included in Exhibit D that not all of the charges are for the same services, as the charges vary from as much as $6113.14 to as little as $12.40. These charges clearly involve very different services, but there is no explanation of what services were provided, why they were necessary, or how they related to the trauma N.C. suffered from defendant's offense.
An examination of the letters and documents provided by the government does not make persuasively clear what services N.C. received, what they cost, and to what trauma they related. Although no victim is required to participate in any phase of the restitution process, a lack of involvement by the victim makes the government's task significantly more difficult. See 18 U.S.C. § 3664(g)(1). Here, it appears that the government experienced difficulty collecting information regarding N.C.'s losses because her family did not wish to participate in the restitution process. Nonetheless, in the future, it would be prudent for the government to be prepared to present testimony and evidence, by subpoena if necessary, regarding proximate cause. Unfortunately, the evidence the government relies on to establish proximate cause is too thin and unreliable to meet the government's burden under Paroline. Proximate cause evidence is made of sterner stuff than this. Thus, no restitution will be imposed in this case and the government's motion must be denied.
For the reasons set forth above, and for the reasons stated from the bench at the January 10, 2020 hearing, the government's motion for restitution will be denied.
An appropriate order will issue separately.
The Clerk is directed to forward a copy of this Memorandum Opinion to all counsel of record.
