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United States v. Block

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

January 14, 2020





         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)(l). (Docket 64). The government moved the court to order defendant to pay $47, 000 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. (Dockets 78 & 81).. The court denied the government's restitution request because it "failed to provide any evidence demonstrating defendant possessed images of these specific named victims." (Docket 88 at p. 6). The government moved for reconsideration of the court's ruling in light of evidence it provided with the motion showing defendant possessed images of the named victims. (Docket 91). Defendant asserts the new government evidence is insufficient to show he possessed images of the named victims and that, even if he did possess such images, his role in their loss is attenuated. (Docket 97). For the reasons given below, the court grants the government's motion and orders defendant to pay. restitution to his victims.


         I. Impact of New Child Pornography Restitution Law

         On December 7, 2018, the President signed into law the Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018 ("the Act"). Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. 115-299, 132 Stat. 4383 (Dec. 7, 2018). The Act revises 18 U.S.C. § 2259, the statute under which the government seeks restitution from defendant. Under the Act, the court must "determine the full amount of the victim's losses that were incurred or are reasonably projected to be incurred by the victim as a result of the trafficking in child pornography depicting the victim." 18 U.S.C. § 2259(b)(2)(A). After making that determination, the court must "order restitution in an amount that reflects the defendant's relative role in the causal process that underlies the victim's losses, but which is no less than $3, 000." Id. at § 2259(b)(2)(B). As it relates to the statute of conviction here, the Act caps restitution at $35, 000. Id. at § 2259A(a)(2). The Act supersedes the Supreme Court's interpretation of § 2259 requiring district courts to award restitution commensurate with the defendant's causal role in the victim's losses without any mandatory amount. Paroline v. United States, 572 U.S. 434, 458 (2014).

         Because the Act became law during the restitution motion's pendency, the court must determine whether the Act applies to the motion-that is, whether the Act applies retroactively. The "sense of Congress" is that the Act is not retroactive. 18 U.S.C. § 2259B(d). One appellate court has declined to apply the Act retroactively. United States v. Monzel. 930 F.3d 470, 476 n. 1 (D.C. Cir. 2019). The court concludes the Act does not govern defendant's case.

         The Ex Post Facto Clause of the Constitution, which forbids Congress from enacting any "law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, When committed," would seem to be a. logical starting point for this inquiry. Peugh v. United States, 569 U.S. 530, 532-33 (2013) (quoting Calder v. Bull 3 Dall. 386, 390 (1798)). There is a conflict in controlling precedent of the United States Court of Appeals for the Eighth Circuit on the question of whether restitution is a criminal penalty or a civil remedy. In 2002, Judge Bye wrote a unanimous panel opinion holding "restitution is a criminal 'penalty.'" United States v. Ross, 279 F.3d 600, 609 (8th Cir. 2002). As far as the court can determine, this holding has never been expressly overruled.

         However, in United States v. Carruth, the Eighth Circuit held restitution "is essentially a civil remedy created by Congress and incorporated into criminal proceedings for reasons of economy and practicality." 418 F.3d 900, 904 (2005). In dissent, Judge Bye again stated restitution is a criminal penalty. Id. at 906. However, neither Judge Bye nor the majority analyzed this question or acknowledged the conflict. The Eighth Circuit has since followed the Carruth majority in labeling restitution as a civil penalty.[1] United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015).

         When confronted with an intracircuit split in authority, courts are directed to follow the earliest panel opinion "as it should have controlled the subsequent panels that created the conflict." T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir. 2006). If restitution is a criminal penally, as articulated in Ross and earlier cases, the Ex Post Facto Clause governs and forbids the court from changing the punishment applicable to defendant by imposing a restitution floor. The Act sets a $3*000 floor for restitution awards, while the Supreme Court's previously governing interpretation of the restitution statute sets no such floor. In fact, the court has awarded restitution in amounts under $3, 000 in prior child pornography cases. See United States v. Haggerty, CR. 14-50046, (Docket 217) (D.S.D. Oct. 15, 2018). The Ex Post Facto Clause prohibits applying the Act retroactively.

         Interpreting restitution as a civil penalty leads to the same result. "[T]he presumption against retroactive legislation is deeply rooted in our jurisprudence, and embodies a legal doctrine centuries older than our Republic." Landgraf v. USI Film Prods., 511 U.S. 244, 265(1994).

A two-step test determines whether a statute may be applied retroactively. At the first step, we discern whether Congress has expressly prescribed the statute's intended reach. If so, our inquiry ends. At the second step, we examine whether the statute would' have a retroactive effect; that is, whether it would impair rights a party possessed when he acted, increase a parry's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would do any of these things, the presumption is that, the statute does not govern, absent clear congressional intent otherwise.

Molina Jerez v. Holder, 625 F.3d 1058, 1069 (8th Cir. 2010) (internal quotations and citations omitted).

         As to the first step of the inquiry, the court notes Congress expressed its sense that the Act not be applied retroactively. 18 U.S.C. § 2259B(d). However, the court cannot determine whether the sense of Congress is too indefinite to count as an express prescription against retroactivity and proceeds to step two of the inquiry. Because the Act would "increase [defendant's] liability for past conduct," the court holds the Act "would have a retroactive effect" were the court to apply it to the government's restitution motion. Molina Jerez, 625 F.3d at 1069. The presumption against retroactive legislation thus governs. The court declines to apply the Act to the pending motion.

         II. Government's Motion for Restitution

         At the outset, the court must reject the government's argument that it bore no responsibility to prove restitution related facts. The government asserted in its motion asking the court to reconsider its prior restitution denial that it is "unfair" to require it to prove defendant possessed images of the named victims. (Docket 91 at p. 2). In the government's view, it did not have to prove any connection between defendant and the named victims because the topic had not arisen as a disputed matter in the case.[2] Id. But it is the government's burden to prove "the amount of restitution[.]" United States v. Miller, 419 F.3d 791, 792 (8th Cir. 2005). It is in no way unfair to hold the government to its burden, regardless of whether or not defendant's possession of images of specific named victims had previously arisen as an issue in the case.

         The most cursory review of the applicable law on this topic would have revealed the necessity of showing, at the very least, defendant possessed images of the named victims. Governing precedent requires an analysis of defendant's connection to the victim's losses. See Section II.A, infra. This analysis is impossible to undertake without even knowing how many images of the named victims defendant possessed. The record now provides sufficient information to determine appropriate restitution amounts, if only barely. However, the court concludes the government's wholesale outsourcing of the. crucial task of substantiating defendant's role in the victims' losses to victims' counsel approaches defaulting on its duty to prove restitution amounts.[3]

         The government seeks $47, 000 in restitution from defendant in 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.[4] Id. The government filed voluminous documentation, compiled by victims' counsel, of 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 losses[.]" (Docket 85 at p. 2). In his latest briefing, the defendant maintains no restitution is appropriate because of the lack of evidence connecting him to the victims. . (Docket 97 at p. 2).

         A. Legal standard[5]

         "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).

         "[B]ecause child pornography victims suffer 'continuing and grievous harm as a result of knowing that a large, indeterminate No. of individuals have viewed and will in the future view images of the sexual abuse she [or he] endured,' all persons who reproduce, distribute, or possess child pornography play a part in 'sustaining and aggravating this tragedy.'" Beckmann, 786 F.3d at 682 (quoting Paroline, 572 U.S. at 457) (alterations omitted). "[E]ven mere possessors of child pornography cause proximate harm to victims of child pornography." Id. (citing Paroline, 572 U.S. at 456-57). The central "question in these cases is determining the ...

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