W. KEITH WATKINS, Chief District Judge.
Defendant Keith Channing Reddick pled guilty to one count of receipt of child pornography in violation 18 U.S.C. § 2252(a)(2) and (b). He was sentenced on October 18, 2017. However, restitution remained open because of unresolved factual issues pertaining to the amount to be awarded for three identifiable victims: "Jan_Socks Sierra," "8 Kids — John Doe 4," and "Sweet Sugar — Ava."
"`A federal district court has `no inherent authority to order restitution, and may do so only as explicitly empowered by statute.'" United States v. Dickerson, 370 F.3d 1330, 1335 (11th Cir. 2004) (quoting United States v. Hensley, 91 F.3d 274, 276 (1st Cir. 1996)). 18 U.S.C. § 2259 provides that the district court "shall" order restitution to identified victims of certain child pornography crimes, including receipt of child pornography. Under § 2259, a restitution order "shall direct the defendant to pay the victim . . . the full amount of the victim's losses as determined by the court." 18 U.S.C. § 2259(b)(1). "The full amount of the victim's losses" includes any costs the victim incurred for
18 U.S.C. § 2259(b)(3).
In Paroline v. United States, 134 S.Ct. 1710 (2014), the Supreme Court held that "[r]estitution is . . . proper under § 2259 only to the extent the defendant's offense proximately caused a victim's losses." 134 S.Ct. at 1722. Thus, in child pornography cases,
Id. at 1727.
The Supreme Court suggested the following "rough guideposts for determining an amount that fits the offense":
Id. at 1728.
Thus, "[a]t a general level of abstraction," under Paroline, "a court must assess as best it can from available evidence the significance of the individual defendant's conduct in light of the broader causal process that produced the victim's losses." Id. at 1727-28. As the Supreme Court acknowledged, though, at the real-world level of determining restitution amounts in specific cases, Paroline's "rough" guidance is "not without its difficulties." Id. at 1729; see United States v. DiLeo, 58 F.Supp.3d 239, 244-45 (E.D.N.Y. 2014) (noting the inherent impossibility of estimating a number of crucial Paroline factors and observing that the task of crafting a restitution order in accordance with Paroline "seems akin to piloting a small craft to safe harbor in a Nor'easter"). Nevertheless, the Paroline Court declined to offer "further detailed guidance" for practical application, instead entrusting the experienced "discretion and sound judgment" of district courts to work out the remaining practical problems inherent in fashioning restitution orders under § 2259 and Paroline. 134 S. Ct. at 1728-29. Under Paroline and § 2259, "courts can only do their best to apply the statute as written in a workable manner" while remaining "faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the consequences and gravity of their own conduct, not the conduct of others." 134 S. Ct. at 1729.
Section 2259 provides that "[a]n order of restitution . . . shall be issued and enforced in accordance with [18 U.S.C. §] 3664 in the same manner as an order under [18 U.S.C. §] 3663A." 18 U.S.C. § 2259(b)(2). Section 3664(e) provides that the attorney for the Government bears the burden of demonstrating, by a preponderance of the evidence, "the amount of the loss sustained by a victim as a result of the offense." 18 U.S.C. § 3664(e).
Paroline's starting point for fashioning a restitution award is an estimation of the amount of the victim's losses caused by continuing traffic in the victim's images. Paroline, 134 S.Ct. at 1728. The court will "do [its] best," id. at 1729, and will consider the record and each of the categories of costs listed in § 2259(b)(3) to arrive at a reasonable, non-speculative estimate of Sierra's total lifetime losses from all trafficking. However, determining the total amount of Sierra's losses due to all continuing traffic is particularly difficult because Sierra is still a minor, the production of the last of the pornographic material was relatively recent, and she is still in the early stages of a process of recovery that will span the course of her lifetime. Therefore, the estimate would necessarily require revision and refinement in future cases as circumstances unfold that more clearly indicate the extent of Sierra's losses over the course of her lifetime.
Reports from two experts provide a reliable starting point for estimating Sierra's ongoing medical costs. First, in a report dated May 4, 2016, Dr. Sharon W. Cooper, M.D., a developmental and forensic pediatrician, provided the following estimates of Sierra's projected medical costs:
(Doc. # 60-1 at 3.)
In a report dated June 25, 2017, Dr. Randall L. Green, Ph.D., a clinical psychologist, stated that Sierra's "therapy costs have been[] and are projected to be substantial, involving continued weekly individual therapy, family therapy, and the possibility of intermittent hospitalizations or residential care." (Doc. # 58-1 at 28.) Dr. Green estimated the cost of that therapy (not including related medical costs for medications that were included in Dr. Cooper's report)
Dr. Green noted in his report that his cost estimate did not include any "possible hospitalization, since that is difficult to predict," but that, in light of Sierra's medical history and conditions, hospitalization could not be ruled out as a possibility. "If that were factored in, that could add another $20,000 to $60,000 to the estimate for each hospitalization stay." (Doc. # 58-1 at 28.)
At the restitution hearing, Carol Hepburn's undisputed testimony established that, after Dr. Cooper and Dr. Green produced their reports, Sierra underwent seven months of inpatient hospitalization that was attributable to harm caused by production and trafficking of images of her. Neither Dr. Cooper nor Dr. Green's estimates specifically include costs for that seven-month inpatient hospitalization. At the hearing, no evidence was given as to the exact cost of the seven-month inpatient hospital stay. In the absence of more specific information regarding the cost of that hospitalization, in light of the Government's burden at the restitution stage, and considering Dr. Green's estimated range of the cost of a future hospitalization, the preponderance of the evidence establishes that the seven-month hospitalization would have cost at least $20,000.
The court rejects Defendant's argument that Sierra's medical and therapy expense estimate should be adjusted downward because Sierra has a duty to mitigate future trauma by opting not to receive notices of new prosecutions.
The court also rejects Defendant's argument that it should reduce the estimate of Sierra's total losses based on past unquantified Medicaid payments for health costs and speculation as to the future availability of employer-provided healthcare. As Sierra's attorney noted, Medicaid in Sierra's home state has indicated that it will pursue subrogation and/or a lien on recovery. More to the point, however, the law explicitly prohibits reduction of a restitution award based on the availability of insurance or other third party payments. 18 U.S.C. § 3664(f)(1)(B) ("In no case shall the fact that a victim has received or is entitled to receive compensation with respect to a loss from insurance or any other source be considered in determining the amount of restitution."); 18 U.S.C. § 2259(B)(ii) ("A court may not decline to issue an order under this section because of. . . the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.").
Accordingly, based on the preponderance of the evidence, the court concludes that Sierra's total lifetime medical treatment and therapy due to trafficking in her images are reasonably expected to cost between $871,453 to $1,061,453. See 18 U.S.C. § 2259(b)(3)(A) (including "medical services relating to physical, psychiatric, or psychological care" in the costs to be included in the victim's total loss).
Based on the evidence and the testimony of Sierra's attorney at the restitution hearing, the court finds that, to date, Sierra's total loss includes $9,822.87 in attorney's fees and costs. This figure includes current and past costs and attorney's fees arising from all the child pornography cases involving her images. This figure does not include any estimate of future attorney's fees and costs.
Based on the preponderance of the evidence, including Carol Hepburn's testimony and the reports of Dr. Cooper and Dr. Green, the court finds that Sierra will incur some lost wages as a proximate result of production and trafficking in her images. However, because Sierra is a minor, and because she is in relatively early stages of treatment, reliable evidence as to the amount of any future lost wages cannot be obtained at this time. Therefore, to avoid engaging in baseless speculation, the court will not include lost wages in the estimate of Sierra's total damages. See 18 U.S.C. § 2259(b)(3)(D) (including "lost income" in the costs to be included in the victim's total loss).
The record contains no evidence regarding Sierra's need, if any, for physical and occupational therapy or rehabilitation, necessary transportation, temporary housing, child care expenses, and any other losses suffered as a proximate result of the offense. See 18 U.S.C. § 2259(b)(3)(B)-(C), (F) (including those items in the victim's total losses).
Accordingly, by a preponderance of the evidence, the court concludes that Sierra's losses that are currently capable of estimation and that are caused by the continuing traffic in her images reasonably fall within the range of $881,275.87 to $1,071,275.87. This estimated range is conservative,
Having determined the amount of the Sierra's losses caused by the continuing traffic in her images, the court will now "consider . . . factors that bear on the relative causal significance of [Defendant's] conduct in producing those losses." Paroline, 134 S.Ct. 1728.
To date, 44 Defendants have been ordered to pay restitution to Sierra in a combined total amount of $109,849.92. (Doc. # 58-2.) The lowest restitution award was $250.00. The highest award amount was $10,000.00, which was awarded in two different cases. The court declines Defendant's invitation to select a $250.00 restitution amount based on sheer speculation as to the reasons for the restitution amounts awarded with respect to previous defendants. As discussed at the hearing, it is not possible to tell from the information provided which of the previous defendants, if any, engaged in conduct similar to Defendant's, whether the previous restitution amounts were reached by agreement or by court order, or any other information that would allow for a helpful comparison of this case to the previous cases.
To date, Sierra has received approximately $6,667 in restitution payments since the first restitution award was entered in June 2016. At this time, because the vast majority of the previous defendants are likely currently in prison, it is difficult to estimate how much of the previously ordered restitution Sierra will likely recover. Even in the unlikely event that all of the previous orders of restitution are satisfied, Sierra would recover roughly one tenth of her estimated total loss.
The next Paroline factors involve (1) a "reasonable prediction" of the number of defendants who will face future prosecution in connection with the trafficking in pornographic images of the victim, and (2) consideration of any available "reasonably reliable" estimate of the total number of offenders who escape detection for trafficking in the victim's images. Paroline, 134 S. Ct. at 1728. Defendant points out that there are approximately 1,000 images and 50 videos of Sierra in distribution. However, without more information, those numbers do not provide a reasonable basis for estimating the total number of participants in the trafficking and viewing of each of those images and videos.
"Frankly, other than providing a tabulation for defendants under indictment and investigations underway at any fixed moment, the proffered number would be the sheerest of speculation." Dileo, 58 F. Supp. 3d at 245. As another district court judge has noted:
Id. at 245 (Vitaliano, D.J.).
Paroline next directs the court to focus on the individual defendant's conduct by considering factors such as
134 S. Ct. at 1728.
Defendant was charged with, and pleaded guilty to, one count of receipt of child pornography. Defendant possessed only a single image of Sierra. There is no evidence Defendant distributed the image or participated in the creation of the image. Defendant points out that his image of Sierra was one among 1,000 images and 50 videos in circulation. These numbers, without more, represent "other facts, id., that are of some limited
Defendant's conduct is along the lines of the least possible involvement in Sierra's harm that could still be expected to result in criminal charges and to proximately contribute to her losses. Relatively speaking, the conduct of most other offenders will be as bad as, or worse than, Defendant's conduct.
Upon review of controlling authority, as well as restitution cases decided under Paroline by other district courts, the court concludes that the approach of United States District Judge Eric N. Vitaliano in Dileo and United States v. Darbasie, 164 F.Supp.3d 400 (E.D.N.Y. 2016), represents the most workable and reasonable approach to apportioning shares of a victim's losses in cases similar to this. Judge Vitaliano's approach begins with "a simple division of quantities known at the time of apportionment." DiLeo, 58 F. Supp. 3d at 248. Dividing by 45
Further, the proportional share range does not take into account the possible need for upward adjustment of Sierra's future medical costs. As Dr. Green noted, while it can be said with certainty that Sierra will require a lifetime of medical care and therapy, she will require "periodic psychological and vocational re-evaluations to assess her evolving needs and status that will possibly change over time and circumstances." (Doc. # 58-1.) The court notes that the projected estimates for medical and therapeutic care have been proven by a preponderance of the evidence to underestimate Sierra's actual costs to date. For example, those estimates did not anticipate Sierra's recent seven-month hospitalization.
Defendant's role in relation to the scope of the manufacturing, trafficking, and viewing of child pornography of Sierra is notably limited: receipt of one image without distribution. However, even Defendant's limited role has contributed to Sierra's total losses, including extensive psychological and physical harm that will require lifetime treatment. The court is mindful that, under Paroline, the final restitution awarded with respect to any particular defendant should not be "trivial," considering all relevant facts and the victim's total loss. See Paroline, 134 S. Ct. at 1728 ("These factors need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders."); see also id. at 1727 (explaining that taking a particular defendant's relative role into account would not result in a "token or nominal" restitution award).
Accordingly, considering all relevant factors and the preponderance of the evidence, the court concludes that the lowest end of the proportional share range represents a non-trivial restitution award that is reasonably proportional to Defendant's "role in the causal process underlying" Sierra's losses. Id. at 1727. An award of approximately one-tenth of the lowest end of the average proportional share range is not overly excessive, but is adequate but to "serve the twin goals of helping [Sierra] achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims." Id.
Therefore, Defendant shall pay Sierra restitution in the amount of $2,000.00.
Accordingly, it is ORDERED that Defendant Keith Channing Reddick shall pay restitution as follows:
1. $1,500.00 to "8 Kids — John Doe 4;"
2. $1,500.00 to "Sweet Sugar — Ava;" and
3. $2,000.00 to "Jan_Socks Sierra."
Further, it is ORDERED that,
An amended judgment ordering restitution will be entered separately.
(Doc. # 58-1 at 28.)
