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Materials on Defending Computer Based Child Pornography Cases

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					 Introduction to Defending
   Computer Based Child
    Pornography Cases



Colin Fieman, Assistant Federal Public
     Defender, Western District of
             Washington
1                                                                JUDGE ROBERT J. BRYAN
2

3

4

5

6                            UNITED STATES DISTRICT COURT
                            WESTERN DISTRICT OF WASHINGTON
7                                     AT SEATTLE
8    UNITED STATES OF AMERICA,                  )    NO. CR0X-XXXXRJB
                                                )
9                  Plaintiff,                   )    DEFENDANT’S SENTENCING
                                                )    MEMORANDUM
10                 vs.                          )
                                                )    FILED UNDER SEAL
11   TIMOTHY NEMO,                              )
                                                )
12                 Defendant.                   )
                                                )
13

14                                        I. Introduction
15          On October 23, 2009, Timothy Nemo entered a plea of guilty to possession of
16   child pornography. Mr. Nemo has no history of sex offenses and no criminal record
17   apart from a misdemeanor charge for possession of marijuana. In addition, he has strong
18   family and community support, an excellent work history, and has completed a
19   psychosexual evaluation that has determined that a non-custodial sentence structured
20   around comprehensive treatment and monitoring would best ensure both his
21   rehabilitation and the safety of the community. For these reasons, the defense
22   recommends a sentence of time served (295 days), which is roughly equivalent to a
23   sentence of one year and a day, followed by ten years of supervised release.
24                         II. Mr. Nemo’s Character and Background
25          Timothy Nemo is 47 years-old and has lived his entire life in the XXXXXXX
26   area. His father owned and operated a filling station, and his mother is a retired grocery

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                      1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 1                                                             Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                              (253) 593-6710
1    store checker. Mr. Nemo’s parents have maintained close contact with him while this
2    case is pending, and are completely supportive of him. Indeed, knowing full well the
3    nature of the charge against him and the challenges he will face returning to a small
4    community as a sex offender, Barbara and Merle Nemo are unstinting in their pride, love
5    and support for Tim:
6           Empathy and generosity is a part of who is. Tim doesn’t want recognition
            just the satisfaction he has helped someone. Last fall Tim rescued a couple
7           after a tree fell on their truck. Being surrounded by down power lines
            made this risky. Another time he comforted [a] dying cycle rider waiting
8           for paramedics. In his 20's Tim saved a swimmer from drowning. He
            never felt like a hero just doing what was needed. Even in this stressful
9           situation Tim has bought dental supplies and shoes for a cell mate who did
            not have means to do so. Under this stressful time he is reaching out to
10          others.
11   See Exh. A (Letter from Barbara Nemo). Mr. Nemo’s father writes with equal pride and
12   affection about his son, recalling how he has always looked after his parents and friends,
13   worked hard, and managed to save up and purchase his own home:
14          When Tim gets out of fed[eral] det[ention] his mother & myself will give
            Tim all the love, help and support we can. He is and has been deeply
15          depressed & remorseful and feels his life is ruined. I am sure when he gets
            back to work & is a productive citizen again he will overcome his
16          depression, make some good adjustments in his life & be the good person
            he is.
17

18   See Exh. B (Letter from Merle Nemo).
19          There is no exaggeration in these letters, and no excuses or attempt by Mr. and
20   Mrs. Nemo to minimize their son’s offense. Instead, they simply convey to the Court
21   something of their son’s overall character, placing his offense in the context of an entire
22   lifetime of positive relationships, hard work, and good deeds. And Mr. Nemo’s parents
23   are not alone in seeing him as a fundamentally good and responsible person. As the
24   other letters on Mr. Nemo’s behalf demonstrate, he has a network of support in his
25   neighborhood and at work which gives him a significant head start on rehabilitation.
26   Mr. Nemo’s parents have even arranged an informal support group of friends and

                                                                          FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 2                                                            Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
1    neighbors who will help him return to the community, ensure that he follows-through on
2    the treatment protocol that has been recommended by Dr. Michael Comte (see section
3    IV, infra), and add a further layer of assurance for the Court that he can and will succeed
4    on supervision. See Exh. C (additional letters of support).
5           Another major consideration in favor of a sentence without further incarceration
6    is Mr. Nemo’s lengthy work history and support from his employer. Mr. Nemo started
7    more than twenty years ago as an apprentice pressman with Columbia Litho Printing &
8    Imaging in XXXXXXX, Washington, and is now its pressroom supervisor. The owner
9    of the company, Pat Guard, has also written to the Court and provides a balanced,
10   objective assessment of Mr. Nemo based on their working relationship over the past
11   twenty years. Pat Guard notes Mr. Nemo’s consideration toward others, and provides
12   some examples to illustrate his character and attitude in small, day-to-day situations:
13          In public life I have seen him numerous times helping out someone he
            does not know that broke down close to ou[r] printing shop. From
14          changing tires to giving lifts to buying a stranded motorist a night at the
            local hotel Tim is one that steps up to the plate to help his fellow man.
15          Truly he’d give the shirt off his back without thinking twice. I remember
            us losing a fellow member of the printing industry that we were close to
16          both him and his parents and how Tim took great pains to show them how
            much he meant to him. I know he still visits the grave site of this special
17          pressman/friend.
18   See Exh. D (Letter from Pat Guard.)
19          The fact that Mr. Nemo has valued skills as a pressman also mitigates in favor of
20   a sentence structured around supervision, since the stability afforded by good
21   employment is a key factor in complying with supervision and avoiding recidivism. Pat
22   Guard has been holding Mr. Nemo’s position for him while awaiting sentencing, in the
23   hope that he will receive a non-custodial sentence and return to work soon.
24

25

26

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                      1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 3                                                             Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                              (253) 593-6710
 1                                   III. The Offense Conduct
 2          Almost two years ago, in early 2008, Mr. Nemo was identified by law
 3   enforcement as someone who had subscribed to a publicly-accessible Internet site that
 4   offered child pornography. Apparently recognizing that Mr. Nemo did not pose a threat
 5   to the public, agents did not make contact with him or search his computer until almost a
 6   year later, in March 2009. When Mr. Nemo met with agents at his home he cooperated
 7   fully with them, and forthrightly admitted to viewing both adult and child pornography
 8   on the Internet. He also assisted the agents with searching and securing his computers.
 9          All of the images and videos found on Mr. Nemo’s computers have been widely
10   circulated on the Internet and are readily accessible though both paid and, in many cases,
11   unpaid sites. One of the unfortunate aspects of the proliferation of child pornography is
12   that it is not only easy to find on the Internet (only two clicks with generic search terms
13   as “teen” and “sex” are all that is required to access such images), but vast numbers of
14   images can be downloaded in a matter of minutes. Because many images and videos are
15   transmitted in compressed files (i.e. compact files that can be transmitted quickly, often
16   with a wide mix of content that is not necessarily what the recipient expected to find),
17   the actual images contained in many files are often not apparent until the recipient opens
18   and looks at the contents. Once received, it is impossible fully to delete images, and it is
19   easy for a single computer to become rapidly saturated with pictures and videos.
20         In this case, the PSR has included a four-level enhance for possession of sadistic
21 or masochistic images under U.S.S.G. § 2G2.2(b)(4). This enhancement apparently

22 relates to pictures that depict “penetration of female children by adult males.” See PSR ¶

23 22. While all child pornography is inevitably disturbing, counsel did not see any images

24 during the discovery conference that involved the type of exceptionally extreme content

25 that sentencing court’s typically reserve this enhancement for (such as bondage, corporal

26

                                                                          FEDERAL PUBLIC DEFENDER
                                                                                      1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 4                                                             Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                              (253) 593-6710
 1 punishment, or similarly violent content beyond the harms inherent in child

 2 pornography).

 3         Unfortunately, the Ninth Circuit has taken an unusually expansive view of the
 4 enhancement, essentially holding that since all child pornography is abusive to the victim

 5 it qualifies as “sadistic and masochistic” for guideline purposes. See United States v.

 6 Rearden, 349 F.3d 608, 615 (9th Cir. 2003). Of course, the purpose of a guideline

 7 enhancement is to increase the potential sentencing range for aggravating factors that

 8 distinguish the offense from typical offense conduct that is already accounted for in the

 9 base offense level. All of the images in this case been widely circulated for a long time;

10 there is no evidence that Mr. Nemo was searching for or specially collecting sadistic

11 images; and there is little if anything to distinguish either the volume or content of the

12 images he possessed from typical possession cases. See also Plea Agreement at ¶ 8 (an

13 enhancement for sadistic images is not included among the stipulated applicable

14 guideline provisions, although the Government remains free to argue that additional

15 enhancements might apply). Even if the Court determines that the enhancement

16 technically applies, it should be undisputed by the Government that there is nothing in

17 either the volume or content of the images found on Mr. Nemo’s computer that renders

18 this case unusual or especially egregious.

19                           IV. Mr. Nemo’s Insights and Remorse
20         Regardless of where the images downloaded by Mr. Nemo fall on the spectrum of
21 illicit pornography, Mr. Nemo has considerable insight into his offense and feels deep

22 remorse for it. Given that his activities on the Internet represent a dramatic departure

23 from an established history of responsible behavior, it has been important for him to

24 come to grips with the causes of that behavior and develop an effective strategy for

25 ensuring that he does not repeat it.

26

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 5                                                            Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
 1          In communicating with Mr. Nemo and his family, friends and family doctor,
 2 counsel is convinced that Mr. Nemo’s problems are traceable to the death of his brother

 3 in 2003. Mr. Nemo was very close to his brother and took the loss hard, and eventually

 4 slid into severe and ongoing depression, exacerbated by panic attacks and increasing use

 5 of alcohol. See Exh. E (Letter from Judy Wallace, Mr. Nemo’s sister, describing the

 6 impact on Mr. Nemo of their brother’s death); Exh. F (Letter from Dr. David Harold)

 7 (noting that Mr. Nemo’s depression, and alcohol use in combination with anti-depressant

 8 medications, “likely would contribute to impaired judgment”). While at FDC, Mr. Nemo

 9 has met with the medical staff and been placed on new anti-depressant medication,

10 which has had a positive effect in controlling his depression and panic attacks.1 Not

11 satisfied with medication as a permanent means to mental health, however, Mr. Nemo

12 has also been guided by the medical staff at FDC and his mother to read about

13 depression, dealing with grief, and how to handle addictive behavior like consuming

14 alcohol to excess and viewing Internet pornography. A recent psychosexual evaluation

15 of Mr. Nemo has found that he has significant insight into his offense, is highly

16 motivated to pursue counseling, and is amenable to supervision while undergoing

17 community-based treatment. See Section IV, infra (summarizing the psychosexual

18 evaluation).

19          Another key factor in Mr. Nemo’s rehabilitation is his unqualified recognition
20 that what he did was wrong, in part because he helped fund an industry that does serious

21 harm to minors. In this regard, Mr. Nemo has written the following in his letter to the

22 Court:

23          I would first like you to know that I understand the charges that have been
            brought against me and also understand that the moneys used to purchase
24          such materials can be used to perpetuate such an industry. Since I have
25
            1
             The PSR notes that Mr. Nemo has responded well to Zoloft, which was prescribed
26   recently by FDC medical staff, not Mr. Nemo’s family doctor. See PSR ¶ 47.
                                                                        FEDERAL PUBLIC DEFENDER
                                                                                    1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 6                                                           Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                            (253) 593-6710
 1          purchased such materials and assuming my payment is used in such a
            manner on innocent victims then to them I will never be able to apologize
 2          in person but the remorse is felt in me nonetheless.
 3
     Exh. G.
 4
            Mr. Nemo goes on to write in detail about his deep shame and regret, and the
 5
     palpable shock to his system that has occurred from being in jail:
 6
            I am lucky to have a group of really close family and friends concerned for
 7          my well being. This is a good fortune I will take to my advantage. This
            miserable experience of incarceration and loss of a freedom has such a
 8          nightmare reality to it. It has shaken me to the core of my soul. This
            experience scares me so deeply I can’t imagine ever doing anything that
 9          could put me in this situation ever again. I love this life and this is no way
            to live.
10
     Id.
11
            Looking past his own suffering, Mr. Nemo also writes about the pain he feels for
12
     causing his parents embarrassment and anxiety, and his sense of letting down his boss,
13
     his colleagues at work, and all the neighbors and friends who have known him for 47
14
     years. Mr. Nemo’s separation from his family has been particularly hard on his mother,
15
     Barbara, who has suffered stress-related health problems since he was incarcerated. See
16
     Exh. H (letter from ARNP Carol Steven).
17
            Mr. Nemo’s letter demonstrates that two of the primary purposes of incarceration
18
     – punishment and deterring future misconduct – have already been achieved in this case.2
19
     Unlike some defendants, who are either hardened to the nightmarish qualities of prison
20
     life or feel that they are being punished unfairly, Mr. Nemo fully understands both that
21

22
            2
             Recent studies have in fact concluded that there is no evidence that increased
23 punishments, particularly jail sentences, promote general deterrence. See, e.g., Andrew Vaughn
   Hersh, et al., Criminal Deterrence in Sentencing Severity: An Analysis of Recent Research (1999)
24 (available at http://members.lycos.co.uk/lawnet/SENTENCE.PDF.); Gary Kleck, et al., The Missing
   Link in General Deterrence Theory, 43 Criminology 623 (2005); V. Gabbay, Exploring the Limits
25 of the Restorative Justice Paradigm: Restorative Justice in White Collar Crime, 8 Cardozo J.
   Conflict Resol. 421, 447-448 (2007).
26

                                                                          FEDERAL PUBLIC DEFENDER
                                                                                      1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 7                                                             Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                              (253) 593-6710
 1 he is responsible for being in jail and acutely aware of just awful it is to be there. He is

 2 also powerfully motivated to regain the respect and trust of everyone who knows him in

 3 Camas, since he plans to return and rebuild his life there no matter how difficult that

 4 process may be. While some people in Mr. Nemo’s position might choose to move or

 5 hide away, his determination to return to his home town, resume working, try to save his

 6 house from foreclosure, and rebuild relationships further support the conclusion that he

 7 will be highly motivated to succeed on supervision.

 8         Mr. Nemo’s experiences in jail over the last ten months should also convince the
 9 Court that appropriate punishment for his offense does not require additional jail time,

10 especially when the Court considers the other punitive aspects of the recommended

11 sentence. See 18 U.S.C. § 3553(a) (mandating sentences that are “sufficient, but not

12 greater than necessary”). While incarceration may be the most obvious part of

13 punishment in this case, it is probably not the worst. Far more difficult is the life-long

14 stigma that comes from being a sex offender, especially for someone like Mr. Nemo who

15 comes from a small community. No matter how well Mr. Nemo does on supervision, or

16 how completely rehabilitated he is, he will have to register as a sex offender for the rest

17 of his life. This federally-imposed requirement for first-time Internet pornography

18 offenders is unduly harsh, since Washington state law does not require registration for

19 people convicted of possessing illicit pornography and most members of the public have

20 trouble distinguishing between the violent or predatory offenders who were traditionally

21 required to register and people like Mr. Nemo. This modern equivalent of a scarlet letter

22 adds a unique and particularly severe punishment to possession of pornography that

23 should mitigate the need for additional punishment in the form of prolonged jail time.

24

25

26

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 8                                                            Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
 1                 V. The Need for Effective Treatment and Rehabilitation
 2         Equal among factors when determining what a sentence is “sufficient but not
 3 greater than necessary” is consideration of the rehabilitative needs of a particular

 4 defendant. 18 U.S.C. § 3553(a)(2)(D). In this case, addressing Mr. Nemo’s

 5 rehabilitative needs serves other sentencing interests as well. A sentence structured

 6 around intensive supervision and counseling will also deter future misconduct and

 7 enhance public safety.

 8         In preparing for sentencing, Mr. Nemo voluntarily undertook a psychosexual
 9 evaluation with Michael Comte. See Exh. I. Comte is a former Asst. Director of Sex

10 Offender Treatment Program at Western State Hospital and has over 25 years experience

11 in evaluating and treating sex offenders, ranging from Internet offenders like Mr. Nemo

12 to violent sexual predators. Comte was selected for the evaluation because his

13 assessments and recommendations are routinely endorsed by the Government. The

14 prosecution has previously reviewed Comte’s evaluation of Mr. Nemo and agrees that it

15 is comprehensive, reliable and meets all the requirements of a satisfactory evaluation set

16 forth in paragraph 8 of the plea agreement.

17         In particular, Comte’s report was prepared for the purposes of determining
18 whether Mr. Nemo presents a danger of committing a future contact sex offense, whether

19 he presents a risk of recidivism, and whether he is amenable to treatment and

20 supervision. In assessing these issues, Comte first concluded that Mr. Nemo has no

21 history of hands-on offenses. In addition, Mr. Nemo “present[s] with a positive

22 prognosis. He recognizes the need to address his sexual deviancy and seems motivated to

23 do so. Although he presents at low risk for further sexual offending, what risk does exist

24 can be compromised by a successful treatment outcome.” See Exh. I at 9. Comte adds

25 that Mr. Nemo does not suffer from any type of antisocial personality disorder, and

26 therefore “would be a viable community treatment candidate and would not pose

                                                                        FEDERAL PUBLIC DEFENDER
                                                                                    1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 9                                                           Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                            (253) 593-6710
 1 significant problems for his Probation Officer and clinical provider.” Id. at 6. Before

 2 reaching these conclusions, Comte reviewed all of the records in this case, interviewed

 3 Mr. Nemo at length, administered a battery of tests, and had Mr. Nemo undertake a

 4 searching polygraph examination. The polygrapher determined that Mr. Nemo had been

 5 truthful in answering questions during the evaluation process, and that he had not been

 6 involved in acts of sexual misconduct with children. See id. at 2 (noting that the

 7 polygraph examination questions covered “hands-on sexual contact,” distribution of

 8 child pornography, and similar behavior, and that Mr. Nemo’s negative responses

 9 “indicated that he was not attempting deception”).

10         The evaluation also makes plain that a prolonged jail sentence for Mr. Nemo
11 would be counterproductive, since the root causes of his offense are best addressed by

12 treatment and he will not receive treatment in prison. In addition, the negative

13 consequences of additional jail time will be compounded by the fact that Mr. Nemo will

14 lose his home and employment if kept in jail, eliminating key structures in his life that

15 are important elements for succeeding on supervision when he returns to Camas. In this

16 regard, Comte notes that “Mr. Nemo has been remarkably stable in most areas of his

17 life,” including obtaining a mortgage to purchase his home when he was only eighteen

18 years-old. Exh. I at 3. Mr. Nemo has used savings while awaiting sentencing to

19 continue making payments on his home, but those savings have run out and the bank has

20 begun foreclosure proceedings. In addition, while Mr. Nemo’s employer is very

21 supportive of him, his job cannot be held open indefinitely. Additional imprisonment for

22 Mr. Nemo will therefore trigger the loss of both his home and his job.

23         While some level of punishment is certainly appropriate in this case, even the
24 Government must recognize that effectively ruining Mr. Nemo’s life and making him

25 start from scratch is neither proportional to the offense nor helpful in terms of the larger

26 goals of sentencing. The seriousness of a crime can be appropriately captured with a

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                      1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 10                                                            Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                              (253) 593-6710
 1 sentence that does not include incarceration, and rehabilitation will not be furthered by

 2 imprisonment. On this point, Congress has made its views very clear:

 3         18 U.S.C. § 3582(a) reads:
 4                The court, in determining whether to impose a term of
                  imprisonment, and, if a term of imprisonment is to be imposed, in
 5                determining the length of the term, shall considered the factors set
                  forth in § 3553(a) to the extent that they are applicable, recognizing
 6                that imprisonment is not an appropriate means of promoting
                  correction and rehabilitation. (Emphasis added.)
 7

 8         This directive, although often forgotten in our increasingly punitive society,
 9 makes perfect sense. There is a growing body of evidence that prison, by disrupting

10 employment, reducing prospects of future employment, weakening family ties, and

11 exposing less serious offenders to more serious offenders, leads to increased recidivism

12 and that community treatment programs are more effective in reducing recidivism than

13 any prison programs. See, e.g., Sentencing Project, Incarceration and Crime: A

14 Complex Relationship 7-8 (2005), available at

15 http://www.sentencingproject.org/doc/publications/inc_iandc_complex.pdf; Washington

16 State Institute for Public Policy, Evidence-Based Public Policy Options to Reduce

17 Future Prison Construction, Criminal Justice Costs, and Crime Rates (October 2006),

18 available at http://www.wsipp.wa.gov/pub.asp?docid=06-10-1201. Comte’s ultimate

19 recommendation of imposing a probationary disposition, with rigorous supervision and

20 treatment requirements that have been found consistently effective for preventing

21 recidivism, is therefore completely in line with the purposes of sentencing mandated by

22 18 U.S.S.G. § 3553.3

23
           3
24         The Court should also note that the PSI sentencing recommendation erroneously states
   that probation is not a permissible sentence in this type of case. As set forth in 18 U.S.C. §§
25 2252(b)(2) and 3583(k), the statutory range for possession of child pornography is 0-10 years,
   with potential terms of probation ranging from a minimum of five years to life. Given that
26 Congress has authorized probationary sentences in these type of cases, it has hard to imagine a
                                                                                   (continued...)
                                                                        FEDERAL PUBLIC DEFENDER
                                                                                    1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 11                                                          Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                            (253) 593-6710
 1         The assessment that Mr. Nemo does not pose a continuing risk to the public and
 2 of the efficacy of a sentence structured around supervision and treatment is further

 3 supported by recent scientific research about Internet pornography offenders. See Exh. J

 4 (Jerome Endgrass et al; The Consumption of Internet Child Pornography and Violent

 5 and Sex Offending, BMC Psychiatry (July 2009)). The 2009 Endgrass study found that

 6 Internet pornography offenders with no history of hands-on offenses and a positive

 7 treatment prognosis are highly unlikely to pose a risk to children. One focus of this

 8 study was to ascertain whether there is a correlation between the consumption of Internet

 9 child pornography and violent sex offending. The conclusion, consistent with all

10 previous peer-reviewed studies, was that “the consumption of child pornography alone

11 does not seem to represent a risk factor for committing hands-on sex offenses in the

12 present sample – at least in those subjects without prior convictions for hands on

13 offenses.” Id. at 6.

14         The lack of correlation between the consumption of deviant Internet pornography
15 and actual molestation is in part due to the fact that computers and the Internet allow

16 people to explore or indulge a variety of behaviors that they would never pursue in real

17 life. Accessing pornography by computer has a well-recognized seductive effect,

18 inducing a world where harms “are indirect and abstract . . . unappreciated or easily

19 ignored.” United States v. Ontiveros, No. 07-CR-333, 2008 WL 2937539 (E.D. Wis.

20 July 4, 2008) (unpublished). Researchers attribute these effects to a “Triple A Engine”:

21 accessibility, affordability, and anonymity. See Exh. J, supra. Consistent with this

22 pattern, all of the material Mr. Nemo viewed was readily accessible to anyone with a

23

24

25         3
            (...continued)
26   better candidate for a supervisory sentence (following the ten months in jail he will already have
     served) than Mr. Nemo.
                                                                          FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 12                                                           Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
 1 computer, with little or no constraints to downloading hundreds of videos and images,

 2 and there is no allegation that he re-distributed any of the images.

 3         Putting Mr. Nemo’s offense in context, and recognizing the research and
 4 empirical data that corroborate the minimal risk Internet pornography offenders present,

 5 is not to diminish the seriousness of the offense in this case. In no uncertain terms, Mr.

 6 Nemo understands the wrongfulness of what he did and deeply regrets his collaboration

 7 with the child pornography industry. Having admitted his guilt and already paid a heavy

 8 price for his offense, however, the focus must be on how best to remedy that harm and

 9 ensure that Mr. Nemo is once again a healthy, contributing member of society. Unless

10 the Government is able to dispute Comte’s evaluation or the scientific research that

11 places Mr. Nemo in a category of offenders that are highly unlikely to re-offend or pose

12 a risk to the community, there appear to be no good reasons for a prolonged jail sentence

13 and many reasons to find prison counterproductive.

14         The Court should also note that, consistent with an evolving understanding of
15 child pornography offenders, many other courts have recently imposed sentences that do

16 not include incarceration. For example, in United States v. Autery, 555 F.3d 864 (9th

17 Cir. 2009), the defendant was convicted of possession of child pornography and faced an

18 advisory guideline range of 41-51 months imprisonment. Based on its review of the

19 statutory sentencing factors, the district court imposed a sentence of five years probation

20 and the Ninth Circuit upheld the sentence as reasonable. In sentencing the defendant,

21 Judge Robert E. Jones of the District of Oregon recognized the seriousness of the crime,

22 but took into account the defendant’s lack of criminal history, his need for treatment, and

23 his clear prognosis for successful treatment. The court then concluded that “imposing

24 prison time would create ‘a much more disruptive situation and, actually, could be more

25 damaging than the rehabilitation [regime the court believed would] work.” Id. at 868.

26

                                                                          FEDERAL PUBLIC DEFENDER
                                                                                    1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 13                                                          Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                            (253) 593-6710
 1         Similarly, in United States v. Rowan, 530 F.3d 379 (5th Cir. 2008), a probationary
 2 sentence for possession of hard core child pornography images was sustained as

 3 reasonable where the defendant had no criminal history and the court meticulously

 4 considered competing sentencing factors. The recommended guideline range was 46-57

 5 months. Despite the significance of the variance, the court of appeals readily deferred to

 6 the reasoning of the sentencing court.

 7         In United States v. Stall, 581 F.3d 276 (6th Cir. 2009), the Government appealed
 8 a sentence of one day of imprisonment and ten years of supervised release in a child

 9 pornography case that involved the possession of images showing sadomasochistic

10 content involving girls under the age of 12, with an advisory sentencing range of 57-71

11 months. The court carefully reviewed the record, which included strong evidence

12 presented on behalf of the defendant concerning his need for psychotherapy and his

13 prognosis for success on supervision. The information considered by the court in Stall

14 was similar to that presented here, and the court upheld the sentence as reasonable. Id. at

15 286.

16         An especially thoughtful sentencing analysis is presented in United States v.
17 Stern, 590 F. Supp. 2d 945 (N.D. Ohio 2008). In that case, Judge Kathleen O’Malley

18 sentenced a defendant to one year and one day imprisonment despite a guideline range

19 that called for 46-57 months. The pornography in that case was “profoundly disturbing,”

20 id. at 952, and Judge O’Malley took pains to recognize that the defendant’s crime was

21 serious and “shocks the conscience.” Id. at 951. At the same time, she recognized that

22 child pornography “‘is the least serious of the crimes on the continuum of conduct –

23 from possession to distribution to production to predatory abuse – that exploits

24 children.’” Id. at 952 (citation omitted). And, even more importantly, within the

25 continuum of pure possession offenses, some are more egregious than others. Judge

26 O’Malley wrote that, while the pornography possessed by the defendant was disturbing,

                                                                       FEDERAL PUBLIC DEFENDER
                                                                                   1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 14                                                         Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                           (253) 593-6710
 1 it was not “as violent as the images found on the computers of many other defendants the

 2 Court has encountered in these cases.” Id. at 952.

 3         Similar sentences structured around treatment and supervision have been imposed
 4 in many other cases as well. See, e.g. Ontiveros, 2008 WL 2937539; United States v.

 5 Prisel, 316 Fed. Appx. 377 (6th Cir. 2008); United States v. Polito, 215 Fed. Appx. 354

 6 (5th Cir. 2007) (unpublished); United States v. Rausch, 570 F. Supp. 2d 1295 (D. Colo.

 7 2008) (unpublished). All these cases emphasize the need for rehabilitation coupled with

 8 strict supervision that meets the needs of community safety. While the judges took into

 9 account the seriousness of the crime of possessing child pornography, they also

10 recognized that, in many simple possession cases, prolonged imprisonment is not an

11 appropriate penalty.

12         VI.    The Guideline Sentencing Range Should Be Accorded Minimal or No
                  Weight in Determining the Appropriate Sentence.
13

14         The PSR has an adjusted advisory guideline offense level of 28, with a criminal
15 history category of I and an advisory imprisonment range of 78-97 months. However,

16 these calculations did not include the three level reduction for completion of an

17 evaluation that is included in paragraph 8 of the plea agreement, or the additional two

18 level reduction that the Government routinely recommends (and will recommend in this

19 case) for a favorable prognosis in the evaluation. See PSI Sentencing Recommendation

20 at 4 (noting that these additional adjustments are routinely applied in appropriate cases).

21 These adjustments, if adopted by the Court, would result in a total adjusted offense level

22 of 23, and sentencing range of 46-57 months.

23         The guidelines deserve little or no weight in this case because U.S.S.G. § 2G2.2,
24 which applies to Internet pornography offenses, has no empirical basis and has been

25 promulgated contrary to the Sentencing Commission’s institutional role and obligation

26 to determine advisory sentences that are based on relevant research and analysis.

                                                                        FEDERAL PUBLIC DEFENDER
                                                                                    1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 15                                                          Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                            (253) 593-6710
 1         Specifically, sentencing courts generally give respectful consideration to the
 2 advisory guidelines because they assume that the Sentencing Commission has

 3 undertaken the rigorous study, hearings and analysis that is necessary to ensure that

 4 specific guidelines reflect the seriousness of the offense, take into account appropriate

 5 contributing factors that might warrant an enhancement, and render sentencing ranges

 6 proportional to other crimes. See generally U.S.S.G. § 1A1.1 (discussing the

 7 Congressional mandate for the Commission to take a rigorous and rational approach to

 8 developing the guidelines). However, when the validity of specific guidelines are

 9 challenged, courts cannot presume that those guidelines are reasonable. Instead, a

10 sentencing judge must consider whether the advisory guideline range “fails properly to

11 reflect § 3553(a) considerations” in a given case or category of cases. Rita v. United

12 States, 551 U.S. 338, 351 (2007). Sentencing court must also consider whether a

13 particular guideline at issue derives from the Sentencing Commission’s proper exercise

14 of its “characteristic institutional role.” Kimbrough v. United States, 552 U.S. 85, 109

15 (2007) at 109. When guidelines fails to meet these requirements, they should be

16 rejected.

17         In Kimbrough, the Supreme Court upheld a below-guideline sentence in a crack
18 cocaine trafficking case because the crack guidelines are not based on empirical study

19 and are fundamentally arbitrary. This is because they are tethered to congressionally-

20 imposed mandatory minimums that are not based on any meaningful empirical analysis

21 and do not accurately reflect the relative seriousness of crack offenses. Id. at 109. The

22 Court held that when a guideline is not the product of “empirical data and national

23 experience,” it is appropriate for a sentencing judge to conclude that the guideline

24 “yields a sentence ‘greater than necessary’ to achieve § 3553(a)’s purposes, even in a

25 mine-run case.” Id. at 109, 110.

26

                                                                        FEDERAL PUBLIC DEFENDER
                                                                                    1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 16                                                          Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                            (253) 593-6710
 1         Like the crack/powder disparity embedded in the drug possession guidelines, the
 2 sentencing ranges recommended by the child pornography guidelines have been roundly

 3 criticized because they are divorced from any empirical basis that might justify their

 4 severity. Many federal judges are pushing the sentencing commission to reform the

 5 advisory pornography guidelines because, as the Chief District Judge for the Western

 6 District of New York recently stated, it is unclear “that the guidelines, as they are

 7 currently written, assist [judges] in identifying factors that distinguish a defendant who is

 8 a threat to the community and likely to re-offend from one who is not.” See Exh. K

 9 (recent news reports about judicial criticism of the pornography guidelines and the

10 Sentencing Commission’s plan to make review of those guidelines a “priority”). In an

11 especially searing condemnation of the pornography guidelines, Judge Gilbert Merritt of

12 the Sixth Circuit wrote:

13         As a recent October 23, 2008, Wall Street Journal article by Amir Efrati
           points out, our federal legal system has lost its bearings on the subject of
14         computer-based child pornography. Our “social revulsion” against these
           “misfits” downloading these images is perhaps somewhat more rational
15         than the thousands of witchcraft trials and burnings conducted in Europe
           and here from the Thirteenth to the Eighteenth Centuries, but it borders on
16         the same thing. In 2008 alone the Department of Justice has brought 2,200
           cases like this one in the federal courts.
17

18 United States v. Paull, 551 F.3d 516, 533 (6th Cir. 2009) (Merritt, J., dissenting).

19         While Judge Merritt voiced his criticism in a dissent from the affirmance of an
20 especially Draconian child pornography sentence, his dissent is echoed in opinions

21 penned by district court judges across the country. See, e.g., United States v. Hansen,

22 561 F. Supp. 2d 1004, 1009 (E.D. Wis. 2008) (noting that from 1994 to 2007 the mean

23 sentence in child pornography increased from 36 months to 110 months because of

24 “arbitrary increases” rather any empirical research undertaken by the Sentencing

25 Commission); United States v. Johnson, 588 F. Supp. 2d 997 (S.D. Iowa 2008) (“As far

26 as this Court can tell, these modifications [to the child pornography guidelines] do not

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 17                                                           Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
 1 appear to be based on any sort of empirical data, and the Court has been unable to locate

 2 any particular rationale for them beyond the general revulsion that is associated with

 3 child exploitation related offenses”); United States v. Grober, 595 F. Supp.2d 382, 397

 4 (D. N.J. 2008) (concluding that characteristics identified by the Sentencing Commission

 5 as enhancements are “irrational because logically and factually, the characteristics are

 6 simply not genuine aggravating factors. Rather, they are inherent in just about any

 7 downloading offense.”); United States v. Rausch, 570 F. Supp. 2nd 1295, 1298 (D. Colo.

 8 2008) (in imposing a non-guideline sentence of no incarceration, the court found the

 9 pornography guidelines “do[] not exemplify the Commission’s exercise of its

10 characteristic institutional role and that it produces a sentence greater than necessary to

11 achieve the purposes” of sentencing); United States v. Baird, 580 F. Supp. 2d 889, 895

12 (D. Neb. 2008) (according less deference to § 2G2.2 because the guideline does “not

13 reflect the Commission’s unique institutional strengths”); United States v. Shipley, 560 F.

14 Supp. 2d 739, 744 (S.D. Iowa 2008) (pornography guideline “modifications do not

15 appear to be based on any sort of empirical data, and the Court has been unable to locate

16 any particular rationale”); United States v. Doktor, 2008 WL 5334121 (M.D. Fla. Dec.

17 19, 2008) (rejecting guidelines as empirically unsupported).

18         Many of the cases cited above reference a comprehensive historical analysis of
19 the child pornography guidelines to support the conclusion that detachment from an

20 empirical, evidence-based rationale negates any deference otherwise due to those

21 guidelines. That paper, prepared by Troy Stabenow and entitled Deconstructing the

22 Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography

23 Guidelines, is attached as Exh. L for the Court’s convenience.4 Notably, far from

24 disputing the Stabenow report, the Sentencing Commission itself recently issued a report

25

26         4
            The Stabenow paper can also be found at http://www.fd.org/odstb_SentencingResource3.htm.
                                                                         FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 18                                                           Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
 1 that confirms the historical analysis done by Stabenow. See United States Sentencing

 2 Commission, The History of the Child Pornography Guidelines, available at

 3 http://www.ussc.gov/general/20091030_History_Child_Pornography_Guidelines.pdf.

 4         Mr. Stabenow’s analysis of U.S.S.G. § 2G2.2 begins in 1990, when simple
 5 possession of child pornography first became illegal. Id. at 4. In response to the

 6 criminalization of possessing pornography, the Sentencing Commission created a

 7 Section 2G2.4 with a base offense level of 10 and a potential increase of two levels

 8 where the material depicted a minor under the age of 12. Id. at 6. (Under this guideline,

 9 Mr. Nemo would have faced an advisory sentencing range of 6 to 12 months.) The

10 Sentencing Commission provided detailed justification for this guideline, based on its

11 review of sentencings and feedback from judges who expressed their view to the

12 Commission “that the offense level for the least serious forms of conduct under § 2G2.2

13 was too severe and that the Commission had failed to consider mitigating factors that

14 warranted a lower sentence.” Id. at 5.

15         Unfortunately, since that initial guideline was promulgated, the guideline has
16 been amended on numerous occasions, and the result is that the mean sentence imposed

17 in child pornography cases has increased 443% since 1997 alone. Id. at 2. These

18 amendments have been based on either a specific directive from Congress or

19 amendments seeking to keep up with new, Congressionally-imposed mandatory

20 minimum sentences. The amendments are not based on any research or analysis

21 undertaken by the Commission, and there was no research or analysis done by Congress

22 prior to enacting higher mandatory minimums or issuing directives to the Commission

23 (except, perhaps, for political polling data showing the general popularity of “tough on

24 crime” legislation).

25         For example, in 2003, as part of the PROTECT Act, Congress drastically
26 increased the penalties for child pornography offenses, although no research or study

                                                                       FEDERAL PUBLIC DEFENDER
                                                                                   1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 19                                                         Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                           (253) 593-6710
 1 was done to support these amendments and the Sentencing Commission was not even

 2 notified of the proposed changes. Id. at 19-20. Moreover, the Congressional record

 3 establishes that these legislated changes were intended to penalize recidivist sexual

 4 abusers, the producers of pornography, and mass distributors, even though such

 5 defendants represent less than 5% of those prosecuted for pornography offenses in

 6 federal court. As one district court summarized:

 7                The guideline has been steadily increased despite evidence and
                  recommendations by the Commission to the contrary. Congress has
 8                repeatedly amended it directly, ostensibly to target mass producers
                  of child pornography and/or repeat abusers of children. . . . The
 9                more recent changes from 2003 apparently came from two lawyers
                  in the Justice Department who persuaded a novice Congressman to
10                add them to the popular Amber Alert bill. . . . . To the extent that the
                  advisory guidelines deserve continued respect from the courts, that
11                respect will be greatest where the Commission has satisfied its
                  institutional role of relying on evidence and study to develop sound
12                sentencing practices. This guideline simply does not represent that
                  role, as the Commission itself has acknowledged.
13

14 Hanson, 561 F. Supp.2d At 1009.

15         Indeed, no special analysis of the pornography guidelines is required to realize
16 how divorced they are from the realities of pornography offenses and the goals of

17 sentencing. For example, an enhancement for “use of a computer” is almost invariably

18 added to guideline calculations for pornography possession offenses, since the Internet is

19 now the pervasive medium for circulating all types of information and images in our

20 society. This enhancement, however, was promulgated many years ago because

21 Congress was trying to reach distributors who were using computers in ways that, at the

22 time, were a sophisticated means of trafficking illicit pornography. See Exh. L at 15-16.

23 Since then, the enhancement has been applied to anyone who has accessed the Internet

24 and downloaded an image, even if the defendant was not involved in distribution. In this

25 day and age, it would take much more effort and planning to obtain illicit print media

26 than find pictures on the web.

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 20                                                           Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
 1         In short, the child pornography guidelines are not evidence-based and do not
 2 reflect a considered approach to sentencing that is consistent either with the Sentencing

 3 Commission’s mandate or the requirements of 18 U.S.C. 3553(a). The Court should

 4 therefore not give weight to the advisory guideline range in this case, and instead impose

 5 a sentence that reflects Mr. Nemo’s personal history and characteristics and the best

 6 means of ensuring the safety of community, and also metes out punishment that is

 7 sufficient but not greater than necessary to promote respect for the law.

 8                 VII. There are no Grounds for Restitution in This Case
 9         Finally, the Government has notified the defense that a law firm is claiming to
10 represent one of the minors depicted in pictures downloaded by Mr. Nemo and the firm’s

11 client is entitled to restitution pursuant to 18 U.S.C. § 2259. Since the identity of the

12 claimant against Mr. Nemo has not yet been disclosed to the defense and additional

13 discovery will be required to litigate this claim, the Court has agreed to deal with any

14 restitution issues at a later date. However, such a hearing may be unnecessary, because

15 there are no legally cognizable grounds for recovering restitution from a defendant who

16 is convicted of simple possession of child pornography.

17         Specifically, 18 U.S.C. § 2259 requires that a claimant prove, inter alia, that Mr.
18 Nemo’s possession of images that have been widely circulated on the Internet was a

19 proximate cause of specific losses to the claimant that are covered by 18 U.S.C. §

20 2259(b)(3). As set forth in the attached memorandum prepared by the Asst. General

21 Counsel for the Administrative Offices of the United States Courts, the restitution statute

22 and “the uniform adverse case law” do not allow for restitution in cases where

23 possession is the only offense because it is not possible to show that the mere viewing of

24 images by a defendant is the proximate cause of any of type of damages recoverable

25 under the restitution statute, such as medical fees or lost income. See Exh. M (AO

26 memo); see also 18 U.S.C. § 2259(a)(3); United States v. Paroline, No. 6:08-CR-61

                                                                         FEDERAL PUBLIC DEFENDER
                                                                                     1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 21                                                           Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                             (253) 593-6710
 1 (E.D. Tex., Dec. 7, 2009) (rejecting a claim for restitution against a defendant, sentenced

 2 to 24 months in jail and ten years of supervised release, who possessed pictures of a

 3 minor because it was not possible for the Government to show proximate causation of an

 4 injury) (attached hereto as Exh. N).

 5

 6                                        VIII. Conclusion
 7         For all the foregoing reasons, the defense respectfully requests that the Court
 8 sentence Mr. Nemo to time served (295 days) and ten years of supervised release under

 9 such conditions that the Court deems appropriate to meet the rehabilitative needs of Mr.

10 Nemo, ensure the safety of the community, and achieve the other § 3553(a) sentencing

11 purposes.

12                DATED this 23rd day of December, 2009.
13                                     Respectfully submitted,
14

15                                     /s/ Colin Fieman
                                       Colin Fieman
16                                     Assistant Federal Public Defender
                                       Attorney for Timothy Nemo
17

18

19

20

21

22

23

24

25

26

                                                                        FEDERAL PUBLIC DEFENDER
                                                                                    1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 22                                                          Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                            (253) 593-6710
1
                                CERTIFICATE OF SERVICE
2

3          I hereby certify that on December 23, 2009, I electronically filed the foregoing
4 with the Clerk of the Court using the CM/ECF system which will send notification of

5 such filing to Assistant United States Attorney Marc Perez.

6          I also e-mailed this document to Assistant Untied States Attorney Marc Perez and
7 to U.S. Probation Officer Felix Cavillo.

8          Dated this 23rd day of December, 2009.
9

10                                            /s/ Amy Strickling
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

                                                                       FEDERAL PUBLIC DEFENDER
                                                                                   1331 Broadway, Suite 400
     SENTENCING MEMORANDUM - 23                                                         Tacoma, WA 98402
     (Timothy Nemo; CR09-5725RJB)                                                           (253) 593-6710
 Case 2:08-cr-00212-GZS         Document 133        Filed 10/26/2009      Page 1 of 17



                         UNITED STATES DISTRICT COURT
                              DISTRICT OF MAINE

UNITED STATES OF AMERICA,                          )
                                                   )
                                                   )
v.                                                 )    Docket No. 08-CR-212-P-S
                                                   )
                                                   )
MICHAEL BERK,                                      )
                                                   )
                 Defendant.                        )

                              ORDER ON RESTITUTION

       Before the Court is the Government’s request for restitution on behalf of “Amy”

and “Vicky”—two individuals allegedly depicted in pornographic images that Defendant

Michael Berk unlawfully possessed.

       For the reasons explained below, the Court DECLINES to order restitution.

I.     APPLICABLE LEGAL STANDARD

       Whether restitution is an appropriate sanction for an offender convicted of

possessing child pornography appears to be an issue of first impression in this district.

The authority for the Government’s request is 18 U.S.C. § 2259, which provides:

       § 2259.         Mandatory Restitution.

       (a) In general.—Notwithstanding section 3663 or 3663A, and in addition
       to any other civil or criminal penalty authorized by law, the court shall
       order restitution for any offense under this chapter.

       (b) Scope and nature of order.
               (1) Directions.—The order of restitution under this section shall
       direct the defendant to pay the victim (through the appropriate court
       mechanism) the full amount of the victim’s losses as determined by the
       court pursuant to paragraph (2).
               (2) Enforcement.—An order under this section shall be issued
       and enforced in accordance with section 3664 in the same manner as an
       order under section 3663A.
Case 2:08-cr-00212-GZS           Document 133         Filed 10/26/2009      Page 2 of 17



               (3) Definition.—For purposes of this subsection, the term “full
         amount of the victim’s losses” includes any costs incurred by the victim
         for—
                       (A) medical services relating to physical, psychiatric, or
               psychological care;
                       (B) physical and occupational therapy or rehabilitation;
                       (C) necessary transportation, temporary housing, and child
               care expenses;
                       (D) lost income;
                       (E) attorneys’ fees, as well as other costs incurred;
                       (F) any other losses suffered by the victim as a proximate
               result of the offense.
               (4) Order mandatory.—
                       (A) The issuance of a restitution order under this section is
               mandatory.
                       (B) A court may not decline to issue an order under this
               section because of—
                               (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.

         (c) Definition.—For purposes of this section, the term “victim” means the
         individual harmed as a result of the commission of a crime under this
         chapter, including, in the case of a victim who is under 18 years of age,
         incompetent, incapacitated, or deceased, the legal estate, another family
         member, or any other person appointed as suitable by the court, but in no
         event shall the defendant be named as such representative or guardian.

         The Government bears the burden of demonstrating “the amount of the loss

sustained by a victim as a result of the offense.” 18 U.S.C. § 3664(e). The applicable

evidentiary standard is preponderance of the evidence.         Id.   A restitution order is

reviewed for abuse of discretion. United States v. Hensley, 91 F.3d 274, 277 (1st Cir.

1996).




                                             2
    Case 2:08-cr-00212-GZS                 Document 133         Filed 10/26/2009         Page 3 of 17



II.        FACTUAL BACKGROUND

           Defendant Michael Berk pleaded guilty to possessing child pornography in

violation of 18 U.S.C. § 2252A(a)(5)(B). 1 He admitted to possessing in excess of 50,000

still images and 50 videos portraying child pornography. Roughly 6,000 of the still

images and 10 of the videos have been identified as belonging to approximatelyes 104

different series 2 of images.

           The Government has requested that the Court order, as part of Defendant Berk’s

sentence, restitution for the losses incurred by two individuals (who have since attained

the age of majority) allegedly portrayed in images found in his possession. “Amy,”

depicted in the “Misty” series, seeks at least $3,367,854.00 in restitution for ongoing

mental health expenses, lost income, attorney’s fees, and miscellaneous expenses.

“Vicky,” depicted in the “Vicky” series, seeks $151,002.91 in restitution for future

counseling expenses, miscellaneous expenses, and attorney’s fees.

III.       DISCUSSION

           A.        Victims

           The Court must first determine whether “Amy” and “Vicky” are “victims” of

Defendant’s offense. Section 2259(c) defines “victim” as “the individual harmed as a

result of a commission of a crime under [chapter 110 of title 18, United States Code].” It

is undisputed that the Defendant was convicted of such a crime. The only issue in

dispute (with respect to this analysis) is whether the Government has presented adequate

evidence showing that “Amy” and “Vicky” were “harmed” as a result.


1
 After a bench trial, Berk was also convicted on two counts of enticing a minor in violation of 18 U.S.C. §
2422(b). These convictions are irrelevant to the restitution request and will not be discussed here.
2
    A series is a set of images that features the same child.


                                                          3
Case 2:08-cr-00212-GZS           Document 133         Filed 10/26/2009       Page 4 of 17



       At sentencing, the Government submitted evidence showing that “Amy” and

“Vicky” were depicted in a number of images that were found in the Defendant’s

possession.   (Government Exs. 1-3.)      Specifically, two reports from the Center for

Missing and Exploited Children identify “Amy” in 149 images and “Vicky” in 196

images possessed by the Defendant. The Defendant has presented no evidence disputing

this identification. Accordingly, the Court finds that “Amy” and “Vicky” were depicted

in images found in the Defendant’s possession.

       The Supreme Court has recognized that “[t]he distribution of photographs and

images depicting sexual activity by juveniles is intrinsically related to the sexual abuse of

children” and that “the harm to the child is exacerbated” when their images are

circulated. New York v. Ferber, 458 U.S. 747, 759 (1982). Moreover, courts have

uniformly held that the individuals depicted in child pornography are “victims” within the

meaning of § 2259. See, e.g., United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL

579102, at *3 (E.D. Cal. Aug. 19, 2009). The Court finds that the Government has

established that “Amy” and “Vicky” were “harmed as a result of” the Defendant’s

possession of depictions of their sexual abuse.        “Amy” and “Vicky” are therefore

“victims” of the Defendant’s offense for purposes of § 2259.

       B.      Whether § 2259 Contains a Proximate Cause Requirement

       The Defendant and the Victims vehemently disagree as to whether § 2259

requires the Government to prove that the victims’ losses were proximately caused by the

specific conduct underlying the offense of conviction. Stated another way, the issue is

whether § 2259 allows a victim to recover only those losses proximately caused by the

defendant being sentenced, or whether it allows a victim to recover the full amount of her




                                             4
    Case 2:08-cr-00212-GZS             Document 133            Filed 10/26/2009           Page 5 of 17



losses from the defendant being sentenced, notwithstanding other defendants’ (most

obviously, the abuser’s) contribution to the loss.

                  1.       The Parties’ 3 Contentions

         “Amy” and “Vicky” (the “Victims”) contend that there is “absolutely no basis [in

§ 2259] for requiring a casual connection between the victim’s losses and the defendant’s

criminal conduct.” (Amy’s Br. on Restitution (Docket # 125) at 125.) They argue that

the statute mandates that the Court order restitution for the “full amount” of their losses

and that no proof is required linking the amount of loss to a specific defendant’s conduct.

The Victims contend that child pornography is a “joint enterprise,” which makes it

“impossible to apportion [their] harm amongst the numerous past, present, and future

defendants.      This Defendant undeniably contributed to [the Victims’] ‘death by a

thousand cuts’ when he received and/or distributed [their] child pornography images.”

(Id. at 90.) The Victims argue that each person who is found to have possessed their

images is jointly and severally liable for all of their losses.

         The Defendant argues that there is an implicit proximate cause requirement in §

2259 and that the Court must consider the actual harm done to the Victims as a result of

his offense of conviction. He contends that the Court is not authorized to order restitution

for the full amount of the Victims’ losses because he merely possessed their images and

did not produce, manufacture or distribute them.


3
  The Court notes that the Victims are not parties to this proceeding, see United States v. Gamma Tech
Indus., Inc., 265 F.3d 917, 923 n.6 (9th Cir. 2001) (“Victims have never had standing to appear as parties in
criminal cases.”), and that the Government is tasked with advocating on their behalf. See 18 U.S.C. §
3664(d). The Court, however, invited the Victims to submit briefs addressing particular issues related to
restitution. (See Docket # 111.) The briefs show an obvious conflict between their position and the
Government’s position, especially with respect to whether there is a proximate cause requirement in §
2259. The Court therefore considers their arguments and the Government’s arguments. See Gamma Tech,
265 F.3d at 923 (allowing victims to appear at restitution hearing and present evidence because the
government was opposing restitution).


                                                     5
Case 2:08-cr-00212-GZS           Document 133         Filed 10/26/2009      Page 6 of 17



         The Government notes that there is “tension” between § 2259’s direction that the

Court order restitution for the “full amount of the victim’s losses” and statutory

provisions that imply a causation requirement or allow the Court to apportion restitution

based on a defendant’s culpability. The Government also points to a number of decisions

interpreting § 2259 to include a proximate cause requirement. (Government’s Br. on

Restitution (Docket # 123) at 12.) The Government notes that “[g]eneral principles of

fairness and sentencing require that a court make individualized, fact-specific

determinations of the issues.” (Id. at 10.) Ultimately, the Government states that to be

recoverable, the Victims’ losses “must have been the proximate result of Mr. Berk’s

possession of child pornography.” (Id. at 14.)

                2.     Restitution and Causation Generally

         Historically, the amount of restitution has been tied to the amount of loss caused

by the particular offense of conviction. 3 Wright, Miller, et. al, Federal Practice &

Procedure § 528.2 (3d ed. 2004) (“It has long been permissible for a court . . . to require,

as one condition of probation, that defendant make restitution to aggrieved parties for

actual damages or loss caused by his offense.”); see also United States v. Shelby, 573

F.2d 971, 976 (7th Cir. 1978) (holding that it was erroneous for a court to order

restitution in excess of the “actual loss caused by the offenses for which conviction was

had”).

         It was against this background that Congress passed the Victim and Witness

Protection Act of 1982 (“VWPA”). Pub. L. No. 97-291, 96 Stat. 1248 (codified at 18

U.S.C. § 3579 (1982)).       By enacting detailed restitution provisions in the VWPA,

Congress intended to push courts, when imposing criminal sentences, to “insure that the




                                             6
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wrongdoer is required to the degree possible to restore the victim to his or her prior state

of well-being.”    S. Rep. No. 97-532, at 30 (1982).        Cases interpreting the VWPA

illustrate, however, that Congress did not relax the preexisting limitation that a crime

victim may recover in restitution only those losses caused by the specific conduct for

which a defendant is convicted.

       For example, in Hughey v. United States, 495 U.S. 411 (1990), the defendant

pleaded guilty to misuse of one credit card pursuant to a plea agreement. The district

court ordered the defendant to pay restitution for his misuse of twenty-one different credit

cards. The Supreme Court reversed, holding that the VWPA authorized courts to order

restitution for only the “loss caused by the specific conduct that is the basis of the offense

of conviction.” Id. at 413.

       In the First Circuit, the seminal case regarding the interplay between causation

and restitution is United States v. Vankin, 112 F.3d 579 (1st Cir. 1997). In Vankin, the

court announced a number of guiding principles:

       First: Restitution should not be ordered in respect to a loss which would
       have occurred regardless of the defendant’s conduct.
       ...
       Second: Even if but for causation is acceptable in theory, limitless but for
       causation is not. Restitution should not lie if the conduct underlying the
       offense of conviction is too far removed, either factually or temporally,
       from the loss.

Id. at 589. Ultimately, the court held that under the VWPA “the government must show

not only that a particular loss would not have occurred but for the conduct underlying the

offense of conviction, but also that the causal nexus between the conduct and the loss is

not too attenuated (either factually or temporally).”      Id. at 590.    Subject to certain




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amendments to the VWPA that apply in cases involving a “scheme, conspiracy, or plan,”

Vankin remains good law. See United States v. Cutter, 313 F.3d 1, 7 (1st Cir. 2002).

               3.     Interpretation of § 2259

       Although the First Circuit has yet to interpret § 2259, nearly every court to have

done so has found that it requires the victim’s loss to have been proximately caused by

the offense of conviction. See, e.g., United States v. Laney, 189 F.3d 954, 965 (9th Cir.

1998) (“Section 2259 . . . incorporates a requirement of proximate causation[,] . . . a

casual connection between the offense of conviction and the victim’s harm.”); United

States v. Crandon, 174 F.3d 122, 126 (3rd Cir. 1999) (the offense conduct must be a

“substantial factor” in the victim’s losses); United States v. Pearson, No. 1:04-cr-340,

2009 WL 2383025, at *5-6 (N.D.N.Y. July 30, 2009) (entering a restitution order of one-

third the amount requested by the victim because only that amount was proximately

caused the by offense of conviction); United States v. Raplinger, No. 05-cr-49-LRR,

2007 WL 3285802, at *2 (N.D. Iowa Oct. 9, 2007) (restitution is proper under § 2259 for

“any loss suffered by a crime victim as a proximate result of the offenses of conviction”);

but see, United States v. Staples, No. 09-14017-CR, 2009 WL 2827204, at *4 (S.D. Fla.

Sept. 2, 2009) (entering restitution order of $3,680,153.00 without any analysis of

causation).

       The Court agrees with the Ninth Circuit’s reasoning set forth in Laney. As

discussed above, § 2259 defines “victim” as “the individual harmed as a result of a

commission of a crime.” 18 U.S.C. § 2259(c). Moreover, it states that the restitution

order should compensate for “the full amount of the victim’s losses,” id. § 2259(b)(1),

which includes medical costs, therapy costs, lost income, and “any other losses suffered




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by the victim as a proximate result of the offense.” Id. § 2259(b)(3)(F). Thus, the plain

language of the statute clearly requires that losses—to be recoverable in restitution—

must have been proximately caused by the acts which constitute the offense of

conviction.

         The Victims contend the phrase “as a proximate result of the offense” modifies

only “any other losses” and does not apply to the other categories of losses set forth in §

2259(b)(3). (Vicky’s Restitution Br. (Docket # 124) at 3-4; Amy’s Br. on Restitution at

102.) But the Supreme Court has held: “When several words are followed by a clause

which is applicable as much to the first and other words as to the last, the natural

construction of the language demands that the clause be read as applicable to all.” Porto

Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920). The phrase “as a

proximate result of the offense” is equally as applicable to medical costs, lost income,

and attorney’s fees as it is to “any other losses.” 4 Accordingly, the natural construction

of the statute demands that the proximate cause requirement be read as applicable to

every class of loss set forth in the statute. 5


4
  The Victims emphasize that Congress intended § 2259 to provide a “broad remedy” and argue that
reading a proximate cause requirement into all categories of loss conflicts with congressional intent. In
Hughey, however, the government advanced this same argument and the Supreme Court was unpersuaded.
495 U.S. at 420-21. Moreover, the Court determines congressional intent by examining the language of the
statute, see United States v. Ahlers, 305 F.3d 54, (1st Cir. 2002) and the language of § 2259 allows for
recovery of only those losses suffered by the victim as a proximate result of the offense. The Court must
presume that Congress “says in a statute what it means and means in a statute what it says there.” Conn.
Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992).
5
  Additionally, “an Act of Congress ought not be construed to violate the Constitution if any other possible
construction remains available.” Rust v. Sullivan, 500 U.S. 173, 190 (1991); see also Veiga v. McGee, 26
F.3d 1206, 1212 (1st Cir. 1994) (“In the absence of clear legislative intent, we will not adopt an
interpretation of a statute that would render it constitutionally suspect.”). The Court has serious concerns
about whether a restitution order of the sort the Victims propose—one not limited to losses proximately
caused by the offense of conviction—would withstand constitutional scrutiny. The Eighth Amendment
provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST. amend. VIII. At least one appellate court has held that restitution
orders are subject to the Eighth Amendment’s Excessive Fines Clause. See United States v. Dubose, 146
F.3d 1141, 1144 (9th Cir. 1998). Others have assumed they are. See United States v. Lessner, 498 F.3d


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         If the Court were to adopt the Victims’ reading of the statute, a restitution order

could hold an individual defendant liable for more harm than that caused by his particular

offense of conviction. But a restitution order can encompass losses other than those

personally caused by the defendant only if the offense of conviction has a “scheme,

conspiracy, or pattern” as an element. See 18 U.S.C. § 3663A(a)(2); United States v.

Collins, 209 F.3d 1, 3 (1st Cir. 1999) (“each conspirator may be ordered to pay restitution

for all the reasonably foreseeable losses caused by any conspirator in the course of the

conspiracy.”).

         Child pornography offenses may seem analogous to crimes involving schemes,

conspiracies, or patterns in that the end-user/possessor of child pornography “create and

sustain” a market for pornographic images which, in turn, motivates abusers to produce

more images. See United States v. Robinson, 137 F.3d 652, 656 (1st Cir. 1998). Indeed,

the Victims argue that “[t]he illicit trade in child pornography is a joint enterprise.”

(Amy’s Restitution Br. at 90.) While possessors certainly play an essential role in the

market for child pornography, the offense of conviction here—possession of child



185, 205-06 (3d Cir. 2007); United States v. Newsome, 322 F.3d 328, 342 (4th Cir. 2003). Although the
First Circuit has not squarely addressed the issue, it has observed that restitution “is part of a sentence,”
United States v. Acosta, 303 F.3d 78, 87 (1st Cir. 2002), and a “portion of a defendant’s punishment,”
United States v. Innarelli, 524 F.3d 286, (1st Cir. 2008).
          Assuming the Eighth Amendment applies, there is little guidance on what constitutes an
“excessive fine” in the context of a restitution order. See United States v. Dean, 949 F. Supp. 782, 784 (D.
Or. 1996) (“Few cases address application of the Eighth Amendment to an order of criminal restitution.”).
Generally, there is no Eighth Amendment violation if there is proportionality between the amount of
restitution and the loss caused by the illegal activity. See Dubose, 146 F.3d at 1145 (finding that restitution
ordered pursuant to the Mandatory Victims Restitution Act did not violate Eighth Amendment because it
was “geared directly to the amount of the victim’s loss caused by the defendant’s illegal activity.”). Were
the Court to follow the path proposed by the Victims, however, and order restitution in the “full amount” of
their losses without an individualized inquiry into the amount of losses proximately caused by the
Defendant’s conduct, there would be no proportionality. The Court is concerned that a restitution order of
this kind could run afoul of the Eighth Amendment.
          The Court’s concerns about whether the Victims’ interpretation of § 2259 would render it
unconstitutional lend further support to the Court’s interpretation of the statute so as to limit recoverable
losses to those proximately caused by the offense of conviction.


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pornography in violation of 18 U.S.C. § 2252A(a)(5)(b)—does not have a scheme,

conspiracy, or pattern as an element. Accordingly, the Court is authorized to order

restitution solely for those losses proximately caused by the conduct underlying the

offense of conviction. See United States v. Benjamin, 30 F.3d 196, 198 & n.1 (1st Cir.

1994) (unless the underlying offense involves a scheme, conspiracy, or pattern of

criminal activity as an element, the VWPA authorizes the court to consider only the

offense of conviction in ordering restitution).

           C.        Application of § 2259 to this the Defendant’s Possession of the
                     Victims’ Images of Child Pornography

           It has long been uncontroversial to order restitution when the defendant is

convicted of the actual physical abuse of a child or of producing images constituting child

pornography. See, e.g., United States v. Doe, 488 F.3d 1154, 1159 (9th Cir. 2007);

United States v. Julian, 242 F.3d 1245, 1246-48 (10th Cir. 2001).                     But victims and the

Government have only recently begun seeking restitution from the end-users or

possessors of child pornography. Indeed, counsel for “Amy” represents that the first

restitution order against a defendant convicted only of possession of child pornography

was entered in June of this year. (Amy’s Restitution Br. at 78.)

           A review of the cases decided thus far shows that victims’ success in obtaining

restitution has varied significantly in district courts across the country. 6 At one extreme,

courts have awarded the entire amount requested by the victims without any discussion as

to proximate causation. See, e.g., United States v. Staples, No. 09-14017-CR, 2009 WL

2827204, at *4 (S.D. Fla. Sept. 2, 2009). At the other extreme, some courts have

declined to order any restitution based on the lack of evidence showing a quantifiable loss


6
    As of the time of this writing, none of the circuits have addressed this issue.


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proximately caused by the offense of conviction. See, e.g., United States v. Simon, 2009

WL 2424673, at *7 (N.D. Cal. Aug. 7, 2009). Some courts appear to have adopted a set

amount for each defendant convicted of possession of child pornography. For example,

the Central District of California seems to routinely order restitution of $5000 while the

Eastern District of California routinely orders restitution of $3000. See United States v.

Brown, No. 2:08-cr-1435-RGK-1 (C.D. Cal. filed Oct. 5, 2009) (awarding $5,000);

United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, at *6 (E.D. Cal.

Aug. 19, 2009). Additionally, in some cases, the Government and the defendant have

stipulated to a restitution amount. See United States v. Granato, No. 2:08-cr-198 (D.

Nev. filed Aug. 28, 2009).

       In the context of a restitution order, the First Circuit has explained that “[t]he

watchword is reasonableness. A sentencing court should undertake an individualized

inquiry; what constitutes sufficient causation can only be determined case by case, in a

fact-specific probe.” Vankin, 112 F.3d at 590 (interpreting the VWPA). Proximate cause

is defined as “[t]hat which, in natural and continuous sequence, unbroken by an efficient

intervening cause, produces injury, and without which the result would not have

happened.” Black’s Law Dictionary 1225 (6th ed. 1990). The First Circuit has held that

“restitution should not be ordered if the loss would have occurred regardless of the

defendant’s misconduct underlying the offense of conviction.” United States v. Cutter,

313 F.3d 1, 7 (1st Cir. 2002). “This means, in effect, that the government must show not

only that a particular loss would not have occurred but for the conduct underlying the

offense of conviction, but also that the causal connection between the conduct and the

loss is not too attenuated (either factually or temporally).” Vankin, 112 F.3d at 589-90.




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        A district court is not precluded from ordering restitution by the inability to

calculate the amount owed to a victim with mathematical precision. United States v.

Savoie, 985 F.2d 612, 617 (1st Cir. 1993). However, “a ‘modicum of reliable evidence’

is required to establish a restitution award; ‘an award cannot be woven solely from the

gossamer strands of speculation and surmise.’” United States v. Mahone, 453 F.3d 68,

74 (1st Cir. 2006) (quoting Vankin, 112 F.3d at 587).

        In this case, the Court has reviewed all of the evidence submitted by the Victims. 7

While a significant portion of the harm that the Victims have suffered was solely caused

by the original abuse, some of the Victims’ harm clearly arises out of the widespread

availability of their images and the possession of their images by individuals such as the

Defendant. For example, the Victims experience distress when they think about someone

viewing their images and possibly being motivated to abuse a child in the same manner

that they were abused. The Victims are afraid that their images might be used by an

abuser to “groom” an unwitting child. They experience anxiety when they are in public

because they wonder whether people they encounter have seen their images. The Victims

feel a lack of control because they know that there is nothing they can do to remove the

images of their abuse from the public realm. All of these feelings contribute to their

losses in that they need to continue attending counseling and taking medication. These


7
  To substantiate her claim for restitution, “Amy” has submitted: (1) a victim impact statement; (2) a
psychological evaluation by Dr. Joyanna Silberg; and (3) an economic report by Stan Smith. Based on
these reports, “Amy” requests $2,855,173 for lost wages and earning capacity, $512,618 for future
treatment and counseling costs, $16,980 in expert fees, and an unknown amount for attorney’s fees and
other costs. Altogether, “Amy” asks the Court to order restitution of at least $3,367,854.00.
         In support of her claim for restitution, “Vicky” has submitted: (1) a forensic psychological
evaluation completed by Dr. Randall Green; (2) her victim impact statements as well as her mother’s and
step-father’s; and (3) a transcript of an internet chat that discusses “Vicky” and her images. On this
evidence, “Vicky” requests $128,005 for future counseling expenses, (2) $19,497.91 for expenses; and (3)
$3,500 in attorney’s fees for a total of $151,002.91.



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feelings also impact their ability to find meaningful employment, which results in lost

earnings.

        It is undisputed that everyone involved with child pornography—from the abusers

and producers of the images to the end-user/possessors such as the Defendant in this

case—contributes to the victims’ ongoing harm. The difficulty lies in determining what

portion of the Victims’ loss, if any, was proximately caused by the specific acts of this

particular Defendant.

        Having reviewed all of the evidence, the Court finds that there is nothing in the

record showing a specific loss that was proximately caused by this particular Defendant’s

possession of the victims’ images.              The losses described the by the Victims are

generalized and caused by the idea of their images being publicly viewed rather than

caused by this particular Defendant having viewed their images. In the documentation

supporting the Victims’ restitution requests, there is no mention of the impact that

learning of Mr. Berk’s offense had on either of the Victims. In fact, there is no mention

of Mr. Berk at all. 8

        If, for example, an expert had originally opined that “Amy” or “Vicky” would

need monthly counseling sessions and, upon learning of Mr. Berk’s possession of her

images, she would instead need weekly sessions, then the Court could order restitution

for this additional loss. In fact, if there was evidence that the Victims had to attend even

8
  A comparison between the timing of the prosecution of this action and the dates on the materials
submitted by the Victims, specifically their expert psychological evaluations, calls into question whether
the Victims’ expert reports are relevant here. “Amy” was evaluated by her psychological expert in June
and November 2008 and the resulting report is dated November 21, 2008. “Vicky” was evaluated by her
psychological expert on April 10, 2009 and the expert’s report is dated May 22, 2009. Mr. Berk was
indicted for this offense on September 5, 2008 but did not plead guilty until May 26, 2009. The Court is
aware that the Government notified the Victims of Mr. Berk’s offense, but the Court is unaware as to when
this notification occurred. If the Victims were not notified of Mr. Berk’s possession of their images until
after his conviction, the Victims would not have had knowledge of his actions at the time they were
evaluated and his actions could not have possibly caused the losses they allege.


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one additional counseling session due to Mr. Berk’s actions, then restitution may have

been appropriate. If, after being notified of Mr. Berk’s offense, one of the Victims had to

miss a day of work, then restitution may have been appropriate. But there is no evidence

in the record before the Court that, upon learning of this particular Defendant’s conduct,

the Victims suffered any additional loss above and beyond what they had already

experienced. 9

           Ultimately, the fundamental goal of all restitution statutes is to “ensure that the

wrongdoer is required to the degree possible to restore the victim to his or her prior state

of well-being.” S. Rep. 104-179, at 12-13. Before this Defendant viewed their images,

the Victims had suffered all of the losses established by the evidence (with the exception

of estimated future losses). Their “prior state of well-being” had already been inalterably

damaged both by the initial abuse and by the idea that other individuals were viewing

their images on a continuing basis. 10


9
  The Victims contend that each time they are notified that another person has been found in possession of
their images, they feel violated all over again. The Court does not question this statement. Were this a
civil tort action, the Victims may have been able to recover for pain and suffering or some other measure of
damages for the anguish they experience when they receive a new notification. But “[p]ain and suffering . .
. and other unliquidated damages that are particularly susceptible to arbitrary determination are usually not
included in a restitution order.” Note, Victim Restitution in the Criminal Process: A Procedural Analysis,
97 Harv. L. Rev. 931, 937-38 (1984) (citing state law and examining the different goals of restitution and
civil tort law); see also United States v. Barnette, 10 F.3d 1553, 1556 (11th Cir. 1994) (“An order of
restitution is not a judicial determination of damages.”). In enacting the federal restitution statutes—
including § 2259—Congress chose to authorize restitution for a victim’s “losses.” By using this verbiage,
“Congress decided that criminal restitution should be limited to the victim’s readily identifiable expenses
and should not be extended to include damages which are difficult to calculate, such as pain and suffering.”
Note, Restitution in the Criminal Process: Procedures for Fixing the Offender’s Liability, 93 Yale L.J. 505,
509 n.16 (1984) (citing 128 Cong. Rec. H8207 (daily ed. Sept. 30, 1982) (statement of Rep. McCollum
made in conjunction with adoption of the VWPA)).
10
     The Supreme Court has stated:
           Restitution is an effective rehabilitative penalty because it forces the defendant to
           confront, in concrete terms, the harm his actions have caused. Such a penalty will affect
           the defendant differently than a traditional fine, paid to the State as an abstract and
           impersonal entity, and often calculated without regard to the harm the defendant has
           caused. Similarly, the more direct relation between the harm and the punishment gives
           restitution a more precise deterrent effect than a traditional fine.


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        The Court is sympathetic to the difficulty of showing a loss proximately caused

by the conduct of any particular defendant. But the Court’s sympathy does not override

the requirement that such a showing be made before the Court can order restitution.

Having reviewed all of the evidence presented, the Court finds that the Government has

not met its burden of establishing a specific loss proximately caused by this particular

Defendant’s possession of the Victims’ images.                     Accordingly, restitution is not

appropriate. See United States v. Cook, No. 4:08-cr-24 (D. Alaska issued on Sept. 9,

2009) (refusing to order restitution because “it would be highly speculative and

impossible to assess a reasonable restitution amount as to Defendant for the images he

observed and distributed.”); United States v. Simon, No. CR-08-0907 DLJ, 2009 WL

2424673, at *7 (N.D. Cal. Aug. 7, 2009) (denying restitution to “Amy” in a similar

possession case because there was no evidence identifying “a specific injury to the victim

that was caused by the specific conduct of the defendant.”); United States v. Raplinger,

No. 05-cr-49-LRR, 2007 WL 3285802, at *5 (N.D. Iowa Oct. 9, 2007) (refusing to order

restitution in favor of victim of sexual abuse because “the court simply has no way to

gauge . . . whether expenses for [the victim’s] treatment and counseling were the

proximate result of Defendant’s crimes.”).




Kelly v. Robinson, 479 U.S. 36, 49 n.10 (1986). If courts allow the amount of restitution to move farther
and farther away from the loss shown to have been caused by the particular defendant’s actions, restitution
has the potential to become indistinguishable from a fine—with the only difference being the payee.


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IV.     CONCLUSION

        Because the Government has failed to present sufficient evidence showing a

particular loss proximately caused by the offense of conviction, the Court declines to

enter a restitution order in this case.


        SO ORDERED.


                                           /s/ George Z. Singal
                                           United States District Judge


Dated this 26th day of October, 2009.




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