United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER MANDATING
RESTITUTION
THIS
MATTER comes before the Court following a restitution hearing
on June 22, 2017 and upon the United States' Restitution
Brief (Doc. 83), filed October 17, 2016, in which the United
States requests restitution pursuant to 18 U.S.C. §
2259, on behalf of M.M. and A.M., who are the two child
victims in this case. For the reasons that follow, the United
States' request for restitution is GRANTED.
BACKGROUND
The
Court held a sentencing hearing on August 29, 2016. The Court
did not impose a sentence at the time. On September 14, 2016,
the Court overruled Defendant Michael Dameon Blackburn's
sentencing memorandum and objection to the PSR. See
Doc. 81. The Court concluded that Defendant's
correctly-calculated Guidelines sentence is 1440 months or
120 years. On September 16, 2016, the Court ordered the
United States or the United States Probation Office to
provide the Court with additional documentation or testimony
quantifying the victims' losses in this case in order to
determine restitution. See Doc. 82. The Court was
concerned with the United States' position that each
victim in this case is entitled to $210, 012.00 in
restitution based upon a single study authored by the Centers
for Disease Control and Prevention that listed $210, 012 as
the average amount a six-year-old victim of abuse incurs in a
lifetime (the “CDC Article”). While restitution
is mandatory in this case, the Court found the restitution
amount requested by the United States to be too speculative
and not adequately supported by evidence in the record. While
the Court agreed with the United States that given the
horrendous abuse inflicted upon the child victims in this
case, they likely will require considerable psychological
care and treatment throughout their lives; the Court took the
view that the record in this case needed to be supplemented
so that the Court has more than just a journal article to
support an award of restitution for the two child victims in
this case. Accordingly, the Court ordered the United States
or the United States Probation Office to provide the Court
with additional documentation in support of the requested
restitution awards in this case.
The
United States filed a Restitution Brief (Doc. 83) on October
17, 2016. Defendant filed a Response (Doc. 84) on November 9,
2016. The United States filed a Reply (Doc. 85) on November
22, 2016. The United States Probation Office subsequently
filed Addenda to the PSR (Docs. 88, 96, 108, and 109). The
Court held a restitution hearing on June 22, 2017, during
which the Court pronounced sentencing and entered an oral
finding that the government met its burden of establishing
the restitution amounts are proper.
LEGAL
STANDARD
The
Mandatory Restitution for Sexual Exploitation of Children Act
requires a district court to order restitution for the
victims of sexually exploitative crimes committed against
children. See 18 U.S.C. § 2259. Section 2259
requires the restitution order to direct the defendant to pay
the “full amount of the victim's losses as
determined by the court.” Id. at §
2259(b)(1). The Code defines “victim” as
“the individual harmed as a result of a commission of a
crime under this chapter, including, in the case of a victim
who is under 18 years of age . . . the legal guardian of the
victim or representative of the victim's estate, another
family member, or any other person appointed as suitable by
the court…” Id. at § 2259(c).
Under the Code, compensable losses include “medical
services relating to physical, psychiatric, or psychological
care; physical and occupational therapy or rehabilitation;
necessary transportation, temporary housing, and child care
expenses; lost income; attorneys' fees, as well as other
costs incurred; and any other losses suffered by the victim
as a proximate result of the offense.” Id. at
§ 2259(b)(3)(A)-(F). The Government bears the burden of
proving the propriety and amount of restitution by a
preponderance of the evidence. See 18 U.S.C. §
3664(e); United States v. Julian, 242 F.3d 1245,
1248 (10th Cir. 2001).
“Restitution
is therefore proper under § 2259 only to the extent the
defendant's offense proximately caused a victim's
losses.” Paroline v. United States, 134 S.Ct.
1710, 1722 (2014). This means there must be a direct relation
between the loss and the defendant's offense, reflecting
“the bedrock principle that restitution should reflect
the consequences of the defendant's own conduct.”
Id. at 1719, 1725.
“A
court may not decline to issue [a restitution order due to]
(i) the economic circumstances of the defendant; or (ii) the
fact that a victim has, or is entitled to, receive
compensation for his or her injuries from the proceeds of
insurance or any other source.” 2259(b)(4)(B)(ii)
(alteration added).
“Of
course, ‘[b]ecause the determination of an appropriate
restitution amount is by nature an inexact science, §
2259 does not impose a requirement of causation approaching
mathematical precision.'” United States v.
Chow, 760 F.Supp.2d 335, 340 (S.D.N.Y. 2010) (quoting
United States v. Church, 701 F.Supp.2d 814,
830-31 (W.D. Va. 2010) (internal quotation marks and citation
omitted)).
“To
establish a record sufficient to ensure effective appellate
review of its restitution orders, ” the Court must make
specific findings of fact supporting its calculation of the
full amount of the damages to a victim which were proximately
caused by the defendant's offense. Church, 701
F.Supp.2d at 832 (internal quotation marks omitted).
DISCUSSION
At the
outset, the Court finds there is no question M.M. and A.M.
are victims as defined by the statute.[1] Defendant
sexually abused both children and produced the child
pornography images in which the victims are depicted, and he
distributed the child pornography images over the internet.
There is also no question the two child victims depicted in
the child pornography in this case have suffered unmistakable
harm. The questions the Court must decide are first,
proximate causation and second, the proper amount of damages
that will compensate the victims for their harm.
I.
Proximate Cause
In
order to award restitution in this case, the government must
show that Defendant's conduct proximately caused the
losses for which the victims are seeking restitution. The
Court finds that Defendant's horrific sexual abuse and
the creation of child pornographic images of A.M. and M.M.
was the proximate cause of the harm the two children suffered
for which they now seek restitution. There is no dispute
Defendant sexually abused A.M. and M.M. and there is no
question that he produced the ...