United States District Court, D. Massachusetts
ORDER FOR RESTITUTION
WILLIAM G.YOUNG, D.J.
government here seeks restitution for "Pia" and
"Tara," two of the individuals depicted in the
child pornography-possessed by the defendant. See generally
Michael H. Keller & Gabriel J.X. Dance, Child Sex Abusers
Elude Flimsy Digital Safeguards, New York Times page 1
(November 10, 2019)("Child Sex Abusers").
2259 of chapter 18 of the United States Code requires courts
to award restitution to victims of various enumerated federal
offenses, including possession of child pornography.
Paroline v. United States, 572 U.S. 434, 439 (2014).
In Paroline, the Supreme Court set forth a
methodology for setting restitution amounts in child
pornography cases. The Court must "determine the amount
of the victim's losses caused by the continuing traffic
in the victim's images . . ., then set an award of
restitution in consideration of factors that bear on the
relative causal significance of the defendant's conduct
in producing those losses." Id. at 460. Factors
that the Court should consider include:
[T]he number of past criminal defendants found to have
contributed to the victim's general losses; reasonable
predictions of the number of future offenders likely to be
caught and convicted for crimes contributing to the
victim's general losses; any available and reasonably
reliable estimate of the broader number of offenders involved
(most of whom will, of course, never be caught or convicted);
whether the defendant reproduced or distributed images of the
victim; whether the defendant had any connection to the
initial production of the images; how many images of the
victim the defendant possessed; and other facts relevant to
the defendant's relative causal role.
Id. Taking these factors into account, the burden of
proof then falls on the government to establish the requested
amount by preponderance of the evidence. 18 U.S.C. §
3664(e); see also United States v. Aumais,
656 F.3d 147, 152 (2d Cir. 2011); United States v.
Kennedy, 643 F.3d 1251, 1263 (9th Cir. 2011);
United States v. Darbasie, 164 F.Supp.3d
400, 405 (E.D.N.Y. 2016. "Restitution orders should
represent 'an application of law,' not' a
decisionmaker's caprice,' . . . and the approach
articulated above involves discretion and estimation."
Paroline, supra at 462 (quotations
Court originally thought that the conduct of the FBI in
hacking into a child pornography website on the dark web and
- instead of shutting it down - infected orders to that site
with malware that identified the purchasers' computers
for further investigation perhaps severed the chain of
relevant causation. See United States v.
Levin 186 F.Supp.3d 26, 36 nl2, (D. MA. 2016)
reversed on other grounds 874 F.3d 316(1stCir.
2017). Competent counsel quickly disabused the Court of this
notion, everyone agreeing that the images of Pia and Tara
came into the defendant's possession through a file
sharing program, not through accessing the hacked website on
the dark web. There is thus little doubt but that restitution
here is mandatory.
is no real dispute concerning the restitution to Pia, and the
Court need not extend analysis. Pia is awarded $3, 138.00
Def. Brief p. 4.
defendant objects to awarding restitution to Tara, properly
observing that earlier restitution orders have already fully
compensated her for the identifiable special damages she has
suffered. United States v. Moody,
2018 WL 3887506*8 (S.D. Ga. August 18, 2018) .
harm to Tara is ongoing; it is hardly encompassed by the
payment of her special damages. Tara experiences genuine harm
every time the images of her hideous sexual abuse come into
focus before another pair of strange eyes. See generally
Child Sex Abusers, supra p.1. While such emotional damages
are certainly genuine, their calculation is difficult if not
impossible. This is precisely the type of issue best left to
an American jury. As the matter is here left to me, I am
required to eschew “a decisionmaker's
caprice." Paroline, 572 U.S. at 462. In such
circumstances, like Judge Melgren, this "Court is
persuaded that the average of other awards is a rational
guide to help determine a proper restitution amount.
United States v. Bellah, 2014 WL
7073287* 1 (D. Kan. Dec. 12, 2014) (Melgren, J.).
based on the entire record - including the most relevant and
helpful Department of Justice database - the court awards
Tara restitution in the amount of $4, 184.