Her name is “Amy.” She is twenty years of age. When she was a child, 8 or 9 (according to media reports), Amy was sexually abused by her uncle. The uncle took photos of the abuse and posted the images on the Internet. Amy’s images became some of “the most widely circulated child pornography images online,” according to Associated Press writer Amy Forliti in a recent report.
Then “Amy” met New York attorney James Marsh who either saw in the former victim of child sexual abuse what he believed to be an injustice in need of correction or an opportunity to expand his practice into the lucrative area of child porn restitution. Marsh has used a federal restitution statute, 18 U.S.C. § 2259, to file approximately 250 requests for restitution on behalf of Amy in child pornography possession cases across the country.
§ 2259 was enacted in 1994 to provide restitution for offenses involving the sexual exploitation and abuse of children. The statute imposes a duty upon a federal sentencing court to order any defendant convicted of a child abuse-related offense to pay restitution to the victim of that offense. The statute is particularly exacting because the sentencing judge cannot refuse to order restitution based on the defendant’s deprived economic circumstances or because the victim has received compensation for his/her injuries from some other source, such as a civil judgment. 1/ § 2259 authorizes restitution for the following reasons:
- “Medical services relating to physical, psychiatric, or psychological care” for the victim;
- “Physical and occupational therapy or rehabilitation” for the victim;
- “Attorney fees, as well as other costs incurred” by the victim; and
- “Any other losses suffered by the victim as a proximate result of the offense.”
Then in 2004 Congress enacted the Crime Victims Rights Act, 18 U.S.C. § 3771, which requires that the victim of any crime be given timely notice of any court proceeding involving the perpetrator of the crime and the right to be heard at that proceeding. 2/
These two related statutes have generally been used to impose restitution orders against the defendant charged with committing specific offense(s) against a victim—for example, Amy’s uncle who sexually abused her and posted images of that abuse on the Internet. Attorney Marsh, however, has used these statutes to seek, and secure, restitution orders against defendants charged in possession of child pornography cases in which Amy’s images were discovered in their possession. Marsh is plowing his way through this new area of restitution law which has produced serious conflict in the judicial arena.
For example, the AP report said that in February 2009 a federal judge in Connecticut ordered a defendant convicted of possessing and distributing child pornography to pay Amy $200,000, marking the first time a defendant possessing the images of a child victim but who did not create them was required to pay restitution to that victim. 3/ Two Florida federal judges followed the lead of the Connecticut judge by ordering possessors of images of Amy to pay her more than $3 million each. 4/ On the other hand, federal judges in Texas, California, and Maine refused to grant restitution to Amy because prosecutors failed to either establish a specific injury to Amy caused by the defendant or because a plea agreement had been reached before Amy’s restitution request was made. 5/ At least two other federal judges in California opted for compromise in these kinds of cases by awarding nominal amounts of restitution to each victim like Amy. 6/ Yet another federal court in Nevada found an inventive way around this controversial restitution mine field: the judge approved a stipulation between the defendant and Government concerning the amount of restitution to be paid because it was “in the best interest of justice, judicial expedience and economy in resolving this novel legal issue.” 7/
These cases reflect not only the novelty of the legal issue but the powerful human emotions fueling it. The AP attributed quotes Amy reportedly made in court documents in which she supposedly expressed this emotion: “It’s hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kind of sick enjoyment from it. It’s like I am being abused over and over again. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle.”
Compelling sentiments, no doubt, but the problem with them is that they were not actually expressed (or written) by Amy. During a hearing conducted on August 20, 2009 in the Texas case involving Doyle Randall Paroline, Beaumont defense attorney Brian Files established that Amy’s “victim impact” statement was actually written by Dr. Joyanna Silberg who was hired by attorney Marsh to assess the psychological “harm” caused to Amy by the repeated viewing of her sexual abuse images by possessors of child pornography. And, of course, we would be remiss if we did not point out that Dr. Silberg had an obvious financial interest in making sure that Amy’s sentiments about being repeatedly victimized were compelling to secure the largest possible restitution order.
And the Silberg-authored victim impact statements have unquestionably influenced some federal judges. For example, AP reported that U.S. District Court Judge Patrick Schiltz in Minnesota last month ordered the U.S. Attorney’s Office to explain why prosecutors hadn’t requested restitution in Amy’s case, informing prosecutors that he would “no longer accept silence from the government.” Assistant U.S. Attorney Erika Mozangue informed Judge Schiltz that Marsh’s request for restitution came after the government and the defendant had reached a plea agreement, adding that “the determination of restitution in possession cases is an unsettled issue.”
But Ernie Allen, the president of the National Center for Missing and Exploited Children, believes the issue is settled. “The people who engage in this stuff need to be held accountable, even if they are not the person who is raping the child,” he told AP. “People who are distributing this stuff, people who are downloading this stuff – when they do that, there a victim, and there’s a real harm.”
Fortunately, for the sake of due process of law, courts do not see things through colored lens as do child protection advocates like Mr. Allen. Courts are required to follow both the spirit and letter of the law. That’s what U.S. District Court Judge Leonard Davis, sitting in Tyler, Texas, had to do in the Paroline case. Paroline was convicted in January 2009 pursuant to a guilty plea for one count possessing material that involved the sexual exploitation of children, including two images of Amy. In June 2009 Paroline was sentence to 24 months in the custody of the Bureau of Prisons and placed under 10 years of supervised release. Attorney Marsh filed a request for restitution under 18 U.S.C. § 2259 seeking approximately $3,367,854 from Paroline. 8/
The first question Judge Davis had to resolve was whether Amy could make a legitimate argument that she was a “victim” under § 2259 by Paroline’s possession of the two images of her being sexually abused. Citing two dominant legal authorities—one from the U.S. Supreme Court and the other from the Fifth Circuit—Judge Davis had no difficulty deciding that Amy was in fact a “victim” because of Paroline’s possession. 9/ The Supreme Court decision, New York v. Ferber, nearly three decades ago discussed at length what Judge Davis called “the long-term physiological, emotional, and mental harm associated with the exploitation of children.” 10/ The High Court concluded that pornography actually “poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original deed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.” 11/
The Fifth Circuit decision cited by Judge Davis, United States v. Norris, offered a more recent view of the issue. The appeals court held that “children depicted in child pornography may be considered the victims of the crime of receiving child pornography.” 12/ Pointing out that the “victimization” of the children involved in pornography does not end when the cameras are shut off, the Fifth Circuit held that there are three ways a possessor of child pornography (or an “end-user” as they are often referred to by the courts) can victimize the children involved in pornography:
- Because the dissemination of the images perpetuates the abuse initiated by the producer of the materials, a consumer who merely receives or possesses child pornography directly contributes to the child’s continued victimization;
- Because the mere existence of the child pornography invades the privacy of the child depicted, the recipient of the child pornography directly victimizes the child by perpetuating the invasion of the child’s privacy; and
- Because the consumer of child pornography instigates, enables, and supports the production of child pornography, the consumer continuously and directly abuses and victimizes the child subject. 13/
These conclusions, we believe, are tantamount to saying that the person who possesses and uses a dangerous drug, such as cocaine or heroin, is as guilty as the person who manufactures, produces, and distributes the drug. Our legal system has never truly punished illegal drug use as severely as it has drug distribution, even though it can reasonably be argued that the illicit drug trade causes greater economic harm and inflicts more human damage than does child pornography, or even child sexual abuse. However, while we disagree with the conclusions drawn in the Ferber and Norris decisions, that is the state of the law and we, like Judge Davis, are bound by those conclusions when conducting a legal analysis of the issue they involve.
The next issue Judge Davis had to confront was whether there is a “proximate cause” requirement under § 2259, i.e., whether Amy’s losses—the more than $3 million she requested in restitution—were “proximately caused by Paroline’s possession of Amy’s two pornographic images.” 14/ While attorney Marsh strenuously argued that § 2259 did not require a proximate cause showing, both the Government and attorney Files agreed that such a showing was required, and that the Government bore the burden of having to prove by a preponderance of the evidence that Paroline’s conduct inflicted a $3 million loss on Amy. Judge Davis agreed with the Government and Files, pointing out that at least one subsection of § 2259 contained a “proximate result” requirement. 15/
Once again Judge Davis turned to the Supreme Court and the Fifth Circuit for guidance. The Supreme Court two decades ago in United States v. Hughey specifically held that restitution in criminal cases must be tied to the losses caused by the offense for which the defendant is convicted. 16/ Citing the Hughey case, the Fifth Circuit just three years ago in United States v. Maturin held that a “district court can award restitution to victims of the offense, but the restitution award can encompass only those losses that resulted directly from the offense for which the defendant was convicted.” 17/
This set the stage for the final issue Judge Davis had to confront: did the Government establish that Paroline’s conduct, the possession of the two Amy images, inflict a $3 million loss on her? Judge Davis began his analysis with the following preliminary observation:
“ … the Court is not aware of any circuit court that has considered a restitution award under section 2259 where the defendant was an end-user or possessor of child pornography. Restitution in possession cases is an issue of first impression in district courts around the nation as the Government has only recently begun seeking restitution from possessors of child pornography on behalf of victims … After considering all of the arguments, authority before it, and principles of statutory construction, the Court finds that section 2259 requires that a victim’s losses be proximately caused by the defendant’s conduct to be recoverable in restitution. General restitution and causation principles applied by the Supreme Court and the Fifth Circuit
support this interpretation of the statute. Moreover, this interpretation is consistent with the various circuit courts that have interpreted section 2259 to require that the victim’s losses be proximately caused by the defendant’s conduct. Thus, an award of restitution under section 2259 is appropriate only for the amount of the victim’s losses proximately caused by the defendant’s conduct.” 18/
Judge Davis then turned his attention to the most critical issue in the Paroline case: whether the government carried the burden of proving Amy’s loss was the proximate result of Paoline’s conduct. The Government launched its argument with a slight of hand maneuver, telling the Court that it had satisfied the “proximate cause requirement” of § 2259 by showing Amy had been “harmed” by Paroline’s conduct. Judge Davis casually deflected the Government’s maneuver by conceding that Amy had been “harmed” by Paroline’s possession of the two images but added that “ … this does little to show how much her harm, or what amount of her losses, was proximately caused by Paroline’s offense.” 19/
Judge Davis added the significant observation that simply because a victim is harmed and even sustained some lesser loss as a result of a defendant’s specific offense, the victim is not “necessarily entitled to restitution for all her losses.” 20/ It would indeed be difficult to comprehend that simply because Paroline possessed two images of Amy—images that he had no hand in producing—would entitle her to a $3 million loss award.
Judge Davis then instructed the Government—for possible future reference, we suspect—that it had the burden of proving that “but for” Paroline’s possession of the two images Amy would not have suffered a specific loss. This is consistent with what most federal circuits have concluded when a “proximate cause” showing must be made—that “but for” a defendant’s conduct a victim would not have suffered a specific loss. 21/
Judge Davis conducted two hearings on the Amy restitution issue during which attorney Marsh and the Government attempted to establish her $3 million loss demand with the following evidence:
- A Victim Impact Statement (which was authored by Dr. Silberg);
- A psychological evaluation by Dr. Silberg (dated November 21, 2008);
- An economic report by Dr. Stan V. Smith (dated September 15, 2008) who had no real expertise as an economist; and
- Numerous excerpts from articles about the harm associated with child pornography.
After listening to this evidence, Judge Davis concluded:
“ … The losses described in Amy’s reports are generalized and caused by her initial abuse as well as the general existence and dissemination of her pornographic images. No effort has been made to show the portion of these losses specifically caused by Paroline’s possession of Amy’s two images. After reviewing the data underlying Amy’s experts’ reports, Paroline submitted a supplemental brief that identifies certain discrepancies between Amy’s Victim Impact Statement and Dr. Silberg’s notes. Paroline’s supplemental briefing also includes a report by Dr. Timothy J. Proctor enumerating his concerns as to the reliability of Dr. Silberg’s report and an economic report prepared by Dr. Kent Gilbreath that sets forth estimates of Amy’s future potential earning capacity to illustrate the discrepancy between his sums and those of Dr. Smith.
“It is clear from the evidence before the Court that a large portion of Amy’s total losses were caused by her original abuse by her uncle. It is equally clear that significant losses are attributed to the widespread dissemination and availability of her images and the possession of those images by many individuals such as Paroline. There is no doubt that everyone involved with child pornography—from the abusers and producers to the end-users and possessors—contribute to Amy’s ongoing harm. The Court is sympathetic to Amy and the harm that she had undoubtedly experienced and will continue to experience for the rest of her life. The Court also realizes that it is incredibly difficult to establish the amount of a victim’s losses proximately caused by any one defendant convicted of possession. However, the Court’s sympathy does not dispense with the requirement that the Government satisfy its burden of proving the amount of Amy’s losses proximately caused by Paroline’s possession of her two images. Although this may seem like an impossible burden for the Government, the Court is nevertheless bound by the requirements of the statute.
“Having reviewed all of the evidence, the Court finds that the Government has failed to meet its burden of proving any specific losses proximately caused by Paroline’s conduct. Thus, an award of restitution is not appropriate in this case.” 22/
While we do not agree with the legal path traveled by Judge Davis to reach his final destination, we laud the end result that legal journey produced. And it should be noted that the Fifth Circuit upheld Judge Davis’ decision not to grant restitution to Amy. 23/ Hopefully these two cases signal that at least in the Fifth Circuit restitution demands like those of Amy’s will not gain any significant legal traction. While we cannot say what attorney Marsh’s motives are for launching Amy-like demands in the restitution arena, we strongly suspect there is a “cash cow” component underlying them. The fact that Amy’s request for $3 million was supported by such slipshod evidence presented by attorney Marsh as indicated by Judge Davis lends credence to our “cash cow” suspicion. We truly regret any “harm” Amy suffered as a result of her uncle’s initial abuse and any “collateral damage” incurred by the dissemination of that abuse over the Internet. But to demand $3 million for two images stretches the bounds of ordinary human logic.
1/ United States v. Paroline, 2009 U.S. Dist. LEXIS 113443 (E.D. Tex. Dec. 7, 2009)
4/ United States v. Freeman, 2009 U.S. Dist. LEXIS 113942 (N.D. Fla. July 9, 2009)[$3,263,758]; United States v. Staples, 2009 U.S. Dist. LEXIS 81648 (S.D. Fla. Sept. 2, 2009)[$3,680,153]
5/ United States v. Paroline, supra; United States v. Simon, 2009 U.S. Dist. LEXIS 105388 (N.D. Cal. Aug. 7, 2009); United States v. Berk, 2009 U.S. Dist. LEXIS 103141 (D. Me. October 29, 2009)
6/ United States v. Brown, No. 2:08-cr-1435 (C.D. Cal. October 5, 2009)[$5,000 award for each victim]; United States v. Ferenci, 2009 U.S. Dist. 80339 (E.D. Cal. Aug. 19, 2009)[$3,000 award to victim)
7/ United States v. Granato, No. 2:08-cr-198 (D. Nev. Aug. 28, 2009).
8/ United States v. Paroline, supra, at Lexis 3-4
9/ New York v. Ferber, 458 U.S. 747 (1982); United States v. Norris, 159 F.3d 926 (5th Cir. 1998).
10/ United States v. Paroline, supra, at Lexis 9
11/ United States v. Ferber, supra, 458 U.S. at 758-60, nn. 9 & 10
12/ United States v. Norris, supra, 159 F.3d at 926, 929
13/ United States v. Paroline, supra, at Lexis 11 [citing Norris, 159 F.3d at 929-30]
14/ Id., at Lexis 16
15/ Id., at Lexis 17 [citing 18 U.S.C. § 2259(b)(3)(F)]
16/ 495 U.S. 411, 412-13 (1990)
17/ 488 F.3d 657, 669-61 (5th Cir. 2007)
18/ United States v. Paroline, supra, at Lexis 24-25
19/ Id., at 28
21/ In re Rendon Galvis, 564 F.3d 170, 175 (2nd Cir. 2009)[“requirement that the victim be ‘directly and proximately harmed’ encompasses the traditional ‘but for’ and proximate cause analysis.”]; In re Antrobus, 519 F.3d 1123, 1126 (10th Cir. 2008)[applying “traditional rules of ‘but for’ and ‘proximate causation’” in the victim context.]; United States v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002)[The “government must show not only that a particular loss would not have occurred but the conduct underlying the offense of conviction, but also that the causal connection between the conduct and the loss is not too attenuated (either factually or temporally).”]
22/ United States v. Paroline, supra, at Lexis 30-32
23/ In re Amy, 2009 U.S.App. LEXIS 28920 (5th Cir. Dec. 22, 2009)
SPECIAL NOTE: We would like to extend our deep appreciation to attorneys Stanley Schneider and Brian Files for the excellent legal work they have put into this restitution issue. We also thank them for bringing this issue to our attention.