The road of Hades is sometimes paved with good intentions. This is so with the case of Luis A. Montalvo-Cruz (“Cruz”) whose appeal to the First Circuit Court of Appeals was decided on March 17, 2014. Through a guilty plea, Cruz was convicted in July 2012 of producing child pornography in violation of 28 U.S.C. § 2251. The victim in the case was the 15-year-old daughter of a woman who lived in the same housing project as Cruz, both of whom were befriended by him. Cruz ultimately produced five pornographic videos of him and the victim. At the July plea hearing, the district court judge instructed the local probation department to prepare a presentence investigation report (“PSR”)


The probation officer preparing the PSR spoke with the victim’s mother to get a victim impact statement. The mother reported a laundry list of emotional problems associated with the sexual abuse: the entire family had been emotionally impacted; the victim’s school grades suffered; she no longer wanted to play volleyball; she cried a lot at night; did not allow anyone to touch her; and reacted aggressively. The mother stated she could not afford to pay the $60-per-session fee for mental health treatment for her daughter.


Pursuant to 18 U.S.C. § 3013, Cruz was assessed $100 in monetary damages, and the PSR stated that the Victim and Witness Protection Act could apply. Cruz did not object to the PSR, particularly the $60 per session mental health fee stated in the report.


The plea agreement Cruz entered into with the Government called for a sentence not to exceed 180 months. At an October 2012 sentencing hearing, the district court didn’t accept the recommended sentence. Instead the court sentenced Cruz to 210 months. Because Cruz’s waiver of appeal in the plea agreement was conditioned on the district court imposing the recommended sentence, the waiver was invalidated by the 210-month sentence imposed and he was permitted to appeal to the First Circuit—and this is where the boat capsized.


The district court ordered Cruz to pay the victim $60 per month to “pay for her treatment.” The court added that the payments would “continue during the term of supervision as long as the victim is determined to be in need of treatment.”

Cruz’s defense counsel objected to this restitution order. He expressed concern that the victim would not use the money for counseling. Counsel then offered his own restitution plan: the victim would pay for her counseling services and periodically submit evidence of payment to Cruz who would then reimburse her.


The district court did not like that plan and suggested another. The court proposed a specific time frame for paying the same amount payable to the victim but “if the minor refuses treatment or is not attending treatment, then the monies will be deposited” in the crime victims fund established by the Victims of Crime Act of 1984 (“Fund”), codified at 42 U.S.C. § 10601(a). As the First Circuit pointed out, the Fund provides “grants to state programs for direct reimbursement to or on behalf of crime victim for mental health counseling.”


Once again, defense counsel objected—not only to the restitution money being deposited into the Fund but “suggested” there was a causation issue as well that had to be considered by the court. Not pleased, the court rejected outright the causation argument before turning its attention to the restitution issue:


“Okay, let’s avoid the confusion probably generated. But the intent and general purpose {are] the same.


First of all and to simplify things instead of opening the loophole of how we verify that the minor is receiving the treatment, how the money will be disbursed, I think there are no qualms that this minor is entitled to receive treatment under the [Fund]. As such whatever treatment might be received and whatever the allocations of money that she receives from the Fund depending on the treatment she receives, I think that $60.00 per session is generally speaking, a low amount, but also one session a month I think is also a very minimal estimate of what might be needed in this type of circumstances.


What I will be doing is modifying my instruction and order to impose upon the defendant the restitution of the total sum of $6,000.00 to the Fund. This money is to be paid while the defendant is serving his sentence and if not during his incarceration, will be completely paid during the first five years of his supervised release.”


The district court initially wanted restitution to go directly to the victim, but after objection by defense counsel, the court tried to accommodate the objection by directing that restitution instead be paid to the Fund. “Although careful consideration of a defendant’s objections is laudable,” the First Circuit observed, “the district court’s compromise had the unfortunate effect of unnecessarily complicating [the victim’s] receipt of restitution.”


For reasons not really explained, defense counsel entirely changed his position on appeal, arguing that the district court erred in ordering restitution payment to the Fund rather than to the victim. He also argued that the court erred in the amount of restitution it ordered Cruz to pay. The First Circuit barely paused on dismissing the latter argument:


“The details of [this] particular argument need not detain us. The small restitution amount of $6,000 was based on a calculation of treatment at $60.00 per session, for a modest one session per month, to last for a period of a little over eight years. The PSR provided ample and timely evidence to support this restitution award, in full compliance with statutory requirements. Given that defendant never objected to the PSR, defendant’s first argument on appeal – that the PSR provided insufficient evidence of the victim’s injuries — is unconvincing.”


The First Circuit then deftly moved to put to rest the issue to whom the restitution money should be given:


“The government has defended the order actually entered but says, given that all parties now agree as to the appropriateness of the district court’s preferred restitution order to the victim, we should just remand and direct the court to enter a restitution order of $6,000 against defendant but payable to the victim. The effect of this would be in keeping with the purpose of restitution: once the victim’s loss is appropriately identified, a court ‘shall order restitution,’ and there is no basis here for accommodating a defendant’s desire to monitor how his victim uses the restitution payment. We agree with the government that nothing in the law precludes us from doing so, and we so order.”


Defense counsel’s objections were laudable. He was taking every defensive measure to protect his client’s interest. No more can be asked in the heat of battle. The First Circuit, however, was not as impressed, saying: “We regret that defendant’s misguided objection to the district court’s order of payment to the victim has resulted in this appeal. We have expedited this opinion in order to see that the victim promptly receives restitution.”


We respect the appeals court’s narrow view. However, we believe a defendant should have a right to demand that restitution be paid as allowed by law, to repay cost related to a specific crime (in this case, mental health treatment). Restitution should not be used as a substitute for civil litigation, where damages from a personal injury can be recovered.


Restitution payments should not be used for personal reasons not related to the crime of injury. The intent of restitution is to compensate a victim for the harm caused by the crime, not to provide a direct deposit payment into a personal checking account to be used for whatever reason the victim may choose.