Another thoughtful and notable district court opinion on restitution in child porn sentencing
A helpful reader sent me a copy of a new opinion from the Eastern District of Texas addressing a request for restitution in a child porn downloading case. The opinion in US v. Paroline, No. 6:08-CR-61 (E.D. Tex. Dec. 7, 2009) (available for download below), denies restitution on a causation theory as explained in its conclusion:
[T]he Court finds that Amy was harmed as a result of Paroline’s conduct and thus, is a “victim” for purposes of section 2259. However, a restitution award under section 2259 requires that the Government prove by a preponderance of the evidence the amount of the victim’s losses proximately caused by the defendant’s conduct. Having considered the parties’ oral arguments and written submissions, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images and thus, the Request for Restitution is DENIED.
The body of the Paroline opinion includes this paragraph noting the disparate treatment that this interesting issue has been given in various district courts over the last few months:
Restitution orders entered in possession cases have varied among the various district courts addressing the issue. On July 9, 2009, a district court in the Northern District of Florida entered a restitution order against a possessor criminal defendant in favor of Amy in the amount of $3,263,758. United States v. Freeman, No. 3:08-cr-22 (N.D. Fla. filed July 9, 2009). Similarly, a district court in the Southern District of Florida ordered a possessor criminal defendant to pay $3,680,153 in restitution to Amy without addressing the proximate causation issue. United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *3–4 (S.D. Fla. Sept. 2, 2009). On the other hand, a district court in the Northern District of California declined to order restitution because restitution was precluded under the defendant’s plea agreement, but noted that “a restitution order in [an end-user possession] case must be based upon the identification of a specific injury to the victim that was caused by the specific conduct of the defendant.” United States v. Simon, 2009 WL 2424673, at *7 (N.D. Cal. August 7, 2009). The Central and Eastern Districts of California have taken a different approach, seemingly adopting a set amount of restitution per defendant convicted of possession of child pornography. See United States v. Brown, No. 2:08-cr-1435 (C.D. Cal. filed Oct. 5, 2009) (awarding restitution in the amount of $5,000 to each victim); United States v. Ferenci, No. 1:08-cr- 0414, 2009 WL 2579102, at *6 (E.D. Cal. Aug. 19, 2009) (awarding restitution in the amount of $3,000 to the victim). In another case, the Government and the defendant stipulated to the amount of restitution because it was “in the best interest of justice, judicial expedience[,] and economy in resolving this novel legal issue.” United States v. Granato, No. 2:08-cr-198 (D. Nev. filed August 28, 2009). Most recently, a district court in Maine declined to order restitution finding that the Government “failed to present sufficient evidence showing a particular loss proximately caused by the offense of conviction.” United States v. Berk, — F. Supp. 2d —, No. 08-CR-212-P-S, 2009 WL 3451085, at *8 (D. Me. October 29, 2009).