United States v. Blackburn

          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 ...