United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN UNITED STATES DISTRICT JUDGE
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.
Impact of New Child Pornography Restitution Law
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).
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
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
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. United States v. Thunderhawk, 799
F.3d 1203, 1209 (8th Cir. 2015).
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
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,
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).
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.
Government's Motion for Restitution
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. 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.
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
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. 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).
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).
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