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United States v. Block

United States District Court, D. South Dakota, Western Division

January 24, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
WAYLEN SHERMAN BLOCK, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE

         INTRODUCTION

         Defendant Waylen Sherman Block pled guilty to one count of receipt of child pornography by a previous sex offender in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1). (Docket 64). The government moved the court to order defendant to pay $47, 000 in restitution to six victims of child pornography. (Docket 68). The court sentenced defendant on August 10, 2018, but deferred its restitution order pending supplemental briefing regarding the impact of defendant's alleged indigence on the mandatory restitution.[1](Dockets 78 & 81). The parties submitted their supplemental briefs and this matter became ripe for adjudication on October 9, 2018. (Dockets 83 & 85). For the reasons given below, the court concludes it cannot order restitution in this case and denies the government's motion.

         ANALYSIS

         I. Government's Motion for Restitution

         The government seeks $47, 000 in restitution from defendant for payment to six child pornography victims. (Docket 68). Specifically, the government seeks $12, 000 for Angela, $10, 000 for Violet, the victim of the “At School” child pornography series, $10, 000 for Lily, the victim of the “Vicky” series, and $5, 000 each to Pia, Ava, and Mya, the victims of the “Sweet Sugar” series.[2] Id. The government filed voluminous documentation about the harms suffered by each victim to justify its request. See Dockets 68-1 - 68-5. The government, arguing that defendant “both produced and distributed images of child pornography, ” suggests that an amount greater than $3, 000 per victim is appropriate. (Docket 83 at p. 3). Defendant argues the government produced no evidence regarding the extent to which his conduct contributed “to the proximate cause of each of the individual victim's [sic] losses” and asks the court to order $2, 500 in restitution to Angela, Violet and Lily, with $1, 250 to Pia, Ava, and Mya. (Docket 85 at pp. 2-3).

         II. Legal Standard[3]

         “Under 18 U.S.C. § 2259(a), a district court shall order restitution for offenses that involve the sexual exploitation of children and child pornography in particular.” United States v. Beckmann, 786 F.3d 672, 682 (8th Cir. 2015). “The government bears the burden of proving the amount of restitution based on a preponderance of the evidence.” United States v. Hoskins, 876 F.3d 942, 945 (8th Cir. 2017). The court must order restitution under this statute “only to the extent that the defendant's offense proximately caused the victim's losses.” Beckmann, 786 F.3d at 682. Losses a victim may have suffered include: medical services relating to physical, psychiatric or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing and child care expenses; lost income; reasonable attorneys' fees, as well as other costs incurred; and any other relevant losses incurred by the victim.18 U.S.C. § 2259(c)(2). The court “may not decline to issue an order” for restitution based on “the economic circumstances of the defendant” or “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.” 18 U.S.C. § 2259(b)(4).

         The Paroline Court “found that § 2259 did not require but-for causation, and that restitution could be awarded in an amount ‘that comports with the defendant's relative role in the causal process that underlies the victim's general losses.' ” Hoskins, 876 F.3d at 946 (quoting Paroline v. United States, 572 U.S. 434, 458 (2014)). To guide the district court's causal analysis, the Court explained:

There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law's development. Doing so would unduly constrain the decisionmakers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim's losses caused by the continuing traffic in the victim's images . . . then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant's conduct in producing those losses.

Paroline, 572 U.S. at 459-60 (internal citation omitted). The factors Paroline provided as guidance include:

1. the number of past criminal defendants found to have contributed to the victim's general losses;
2. reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses;
3. any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of ...

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