Difficulty Establishing Restitution Child Pornography Cases

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


In two previous posts, we discussed the increasing trend of victims of child pornography seeking restitution damages under 18 U.S.C. § 2259 against defendants who were convicted of possessing child pornography depicting their images.  These restitution requests have triggered significant conflicts in the federal courts of appeals, most notably between the Fifth and Second Circuits. On September 8, 2011, the Second Circuit, in United States v. Aumais, reinforced the reasoning it expressed in its August 18, 2011 decision, United States v. Marino; specifically, that these victims must demonstrate a “proximate cause” between a defendant’s possession of the pornographic images and any “harm” suffered by the individual.


The Second Circuit squarely placed itself in the ranks of the D.C. Circuit (United States v. Monzel), 3rd Circuit (United States v. Crandon), 9th Circuit (United States v. Laney, and more recently, United States v. Kennedy), and 11th Circuit (United States v. McDaniel) in finding that the Government must prove that a defendant’s possession of child pornography caused harm to the child victim depicted in the pornography he possessed. The Fifth Circuit, however, in In re Amy Unknown, held that “proximate causation” was not a prerequisite to a showing of harm under § 2259:


“The structure and language of § 2259(b) (3) impose a proximate causation requirement only on miscellaneous ‘other losses’ for which a victim seeks restitution. As a general proposition, it makes sense that Congress would impose an additional restriction on the catchall of ‘other losses’ that does not apply to the defined categories. By construction, Congress knew the kinds of expenses necessary for restitution under subsections A through E; equally definitionally, it could not anticipate what victims would propose under the open-ended subsection F.”


The Fifth Circuit also relied on what the Second Circuit in Aumais called “the manifestation” of a “congressional purpose to award broad restitution” to justify its limitation of proximate cause only to the loss defined in subjection F. The Second Circuit, however, chose to follow “the majority of circuits and hold that under § 2259, a victim’s losses must be proximately caused by the defendant’s offense.” Specifically, the Aumais court endorsed the D.C. Circuit’s reasoning in Monzel that “proximate cause is a deeply rooted principle in both tort and criminal law that Congress did not abrogate when it drafted § 2259.”



The finding that mere possession constitutes victim harm notwithstanding, the three-judge panel decision In re Amy Unknown opened a Pandora’s box which flies in the face of the Supreme Court decision in  Hughey v. United States decision and the underlying provision of victim restitution statutes; namely, that restitution requests should not prolong or complicate the sentencing process. The following paragraph highlights how the In re Amy Unknown decision will complicate and prolong the sentencing process:


“A second reason to doubt that Paroline will pay an unconstitutional price for his crime is the possibility that he can seek contribution from other persons who possess Amy’s images. Although [Sec. 2259] holds a criminal suspect responsible for ‘the full amount of the victim’s losses,’ … it instructs the court to enforce the restitution award ‘in accordance with section 3664’ … Section 3664 states that the court may enforce a restitution order ‘by all other available and reasonable means.’ … Among these is joint and several liability. Holding wrongdoers jointly and severally liable is no innovation … It will, however, enable Paroline to distribute ‘the full amount of the victim’s loss’ across other possessors of Amy’s images. Among its virtues, joint and several liability shifts the chore of seeking contribution to the person who perpetrated the harm rather than its innocent recipient … This court offers no opinion on the amount of restitution due in Amy’s particular circumstances. The district court has conducted two evidentiary hearings already. It is best qualified to determine Amy’s total harm and the fraction due to Paroline’s crime.”


As noted in our previous post, there are hundreds, if not thousands, of criminal defendants across the nation who have been convicted of possessing child pornography which included images of Amy. Some of the defendants are in the nation’s prison system, others under supervised release, and still others registered as life time sex offenders. This does not include the score of other defendants sitting in federal and state jails charged with possessing child pornography that includes Amy’s images. All of these offenders are, according to the Fifth Circuit, jointly and severally liable for any restitution damages awarded to Amy in any given case, including the defendant in this case.


Further, a significant practical issue seen in the Fifth Circuit’s decision In re Amy Unknown is that, by using the criminal courts as venues for collecting restitution, Amy and her experts (as well as her attorneys) should be subject to the discovery process and full cross examination on all the issues concerning restitution. Attorneys representing Paroline or any other defendant charged with possessing Amy’s image would also need to know the number of cases in which she has filed for Sec. 2559 restitution, how much she has recovered, how her damages were calculated and other specific information that should be considered by the court prior to ordering restitution.

Such sentencing discovery requests would certainly prolong and complicate the sentencing process. The Government will spend months, if not years, compiling all the information in Amy-related possession cases as well as in other cases where individuals like Amy have filed Sec. 2259 restitution requests.


Put simply, the In re Amy Unknown case has created what we called “a sentencing nightmare.”

And that’s why the Aumais Court rejected the “joint and several liability” proposition. The Court noted that “Amy” had sought restitution in over 250 cases around the country, and in one of those cases the Amy’s attorney, James Marsh, estimated that as of January 2010, Amy “had received approximately $170,000 from restitution orders and settlements.” The Aumais Court cited its previous decision in United States v. Nucci in which it held that a victim may not recover more than his/her actual loss. The Nucci Court observed that while MVRA did not did not expressly prevent “double recovery” in a criminal restitution context, common law does; thus, the Court declined “read the statute (MVRA) to provide recovery in excess of the amount of loss,” and accordingly applied the common law rule.


The Aumais Court said under its Nucci holding that since Amy “may already have been fully compensated by others for the loss found in this case, there would be ‘no legal basis to permit an award that allows victim to recover more than his due.’” [quoting Nucci]. The Aumais Court then made this pertinent observation:


“It is in any event likely that the collection of a restitution award would need to be carefully monitored to ensure that total payments by all defendants did not exceed what Amy had been awarded for future counseling costs. The need for such monitoring would pose significant practical difficulties. As an initial matter, it is not entirely clear what government body, if any, is responsible for tracking payments that may involve defendants in numerous jurisdictions across the country. In addition, determining what amount Amy has received would entail collecting data about hundreds of cases, ascertaining what money has actually been paid, and determining what losses that money was intended to cover.


“Finally … § 2259(b) (2)—dealing with the enforcement of the restitution order—cross references § 3664. Section 3664(h) implies that joint and several liability may be imposed only when a single district judge is dealing with multiple defendants in a single case (or indictment); so it would seem that the law does not contemplate apportionment of liability among defendants in different cases, before different judges, in different jurisdictions around the country.”


At least two other circuits, the Sixth and Fourth, in unpublished decisions, have also held that joint and several liability is not permissible under 18 U.S.C. § 3664(h) against defendants in different cases. We believe these circuits, and particularly the Second Circuit’s approach in Marino/Aumais is not only more reasonable, but is more consistent with the Hughey mandate that the sentencing process should not be prolonged and  complicated as it would be under In re Amy Unknown approach.


While we sympathize with the horror “Amy” and others like her have been forced to endure, not to mention the lifelong realization that the images of their abuse will always be available somewhere on the internet, given the limitations and difficulties calculating and enforcing restitution in the criminal justice system, we would argue that targeted civil litigation would have been the best possible arena for a full recovery for their very real and heartbreaking injuries and damages.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization