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Restitution to Victims of Child Pornography Overturned
Ninth Circuit Says Order Is Improper Due to District Court Judge’s Failure to Conduct Loss-Causation Analysis; Judge Bumatay Dissents, Citing Statutory Floor for Award
By Kimber Cooley, Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a restitution award requiring a defendant—sentenced to life in prison for producing, distributing, and possessing child pornography while working in a group home for disabled children—to pay the victims depicted in materials he possessed, but did not himself abuse, was improper as the District Court judge failed to conduct a loss-causation analysis.
Circuit Judge Danielle J. Forrest and District Court Judge James Donato of the Northern District of California, sitting by designation, vacated the order, in a memorandum decision, as to all but one of the possession victims by District Court Judge John W. Holcomb of the Central District of California.
Circuit Judge Patrick J. Bumatay dissented in part, objecting to the vacatur of the award to the victims of child pornography, pointing to provisions in the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, codified at 18 U.S.C. §2259, which provides statutory minimum restitution awards of $3,000 to victims of child pornography possession.
Group Home Abuse
Appealing the award was Steve Rodriguez, who was employed as a nursing assistant at a group home for disabled children and adults in Chino. During his time as the sole night-time caregiver for approximately six minors, he abused some of the children and distributed files depicting the abuse.
He was also found to be in possession of unrelated child pornographic materials.
Following Rodriguez’s conviction, Holcomb awarded a total of $125,764.25 in restitution under §2259(b)(2)(B), to be awarded to each victim. Holcomb ordered that the restitution be distributed first to the victims personally abused by Rodriguez, then to victims depicted in files he possessed, and finally to the owner of the facility.
Sec. 2259(b)(2)(B) provides that a court shall order a defendant convicted of trafficking in child pornography to pay restitution as follows:
“(A)Determining the full amount of a victim’s losses.—
“The court shall determine the full amount of the victim’s losses that were incurred or are reasonably projected to be incurred by the victim as a result of the trafficking in child pornography depicting the victim.
“(B)Determining a restitution amount.—
“After completing the determination required under subparagraph (A), the court shall order restitution in an amount that reflects the defendant’s relative role in the causal process that underlies the victim’s losses, but which is no less than $3,000.”
Rodriguez does not challenge the award as to the victims he personally abused.
Disaggregation of Losses
Forrest and Donato pointed out that restitution is only proper under §2259 to the extent that the defendant’s offense proximately caused the victim’s losses and that case law has established that losses caused by the original abuse of the victim should be disaggregated from the losses caused by the ongoing distribution and possession of images.
They noted that a restitution award under the section requires a court to first “determine the amount of the victim’s losses” which are defined in subsection (c)(2) as “costs incurred, or that are reasonably projected to be incurred in the future…as a proximate result of all trafficking in child pornography offenses involving the same.”
The two judges concluded that the statutory floor of $3,000 comes into play only after making that determination. Turning to the facts before them, they said:
“The record does not demonstrate that the district court conducted the required analysis. The district court awarded $3,000 each to victims Violet, Maria, Sarah, and Lily without evidence indicating that they sustained compensable ‘losses.’….And it awarded $5,000 each to victims April, Mya, Pia, and PD11 without determining whether that amount approximated the losses caused by Rodriguez.”
They continued:
“The district court did not plainly err by awarding $3,000 in restitution to victim Jenny. The record supports a finding that she suffered compensable losses caused, in part, by child pornography trafficking, in which Rodriguez played a causal role.”
Bumatay’s View
Bumatay wrote:
“I agree with the bulk of the majority decision. But I disagree with vacating the restitution award to the eight victims depicted in the pornography possessed by Steve Rodriguez when they were children.”
He reasoned:
“[T]he $3,000 awards to victims Violet, Maria, Sarah, Lily, and Jenny were mandated by Congress. By law, the district court was required to order restitution to each victim for an amount ‘which is not less than $3,000.’….Rodriguez does not challenge that these five individuals were victims or that they sustained a “loss” caused by him before the district court. Given these concessions, the district court couldn’t have ordered an award below this statutory floor. So there can be no effect on substantial rights.”
Larger Awards
As to the larger awards, he said:
“Neither were the $5,000 awards to victims April, Mya, Pia, and PD11 plain error. In its filings before the district court, the government told the court that each of these victims ‘adequately demonstrated with their filings that defendant’s possession and viewing material depicting them being brutally raped has caused them approximately $5,000 in financial harm.’….And the victims submitted dozens of pages of documentation. Rodriguez did not dispute any of this.”
He continued:
“[A]t the start of the restitution hearing, it was clear that the district court was familiar with these filings. It thus was a mistake to conclude that this was error, let alone plain error. District courts are presumed to know the law and to understand their sentencing obligations….I see no reason to depart from this presumption here.”
The case is United States v. Rodriguez, 23-50024.
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