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United States v. Loreng

United States District Court, District Circuit

July 29, 2013

UNITED STATES OF AMERICA
v.
GREGORY LORENG, Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Defendant Gregory Loreng pleaded guilty to two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and, on May 1, 2013, the Court sentenced him to ninety-six months of imprisonment. The government now seeks restitution for two children it alleges were pictured in the images, known by the pseudonyms "Amy" and "Cindy." Loreng opposes the request. The issue of calculating losses for victims of child pornography crimes has generated many decisions in the last few years, and questions related to Amy's restitution requests in other cases are currently pending in the D.C. Circuit and before the Supreme Court. This Court, however, cannot wait for further authority to develop because Loreng is entitled to a final determination of restitution "not to exceed 90 days after sentencing, " or by July 30, 2013. See 18 U.S.C. § 3664(d)(5). Accordingly, the Court tackles the issue now and finds that, on this record, no restitution is warranted.

BACKGROUND

Seeking restitution simultaneously with sentencing, the government filed its initial request for restitution on April 23, 2013, merely eight days before Loreng's sentencing hearing, and effectively leaving Loreng one business day to respond. See Sentencing Hr'g Tr. at 4:3-5 (May 1, 2013). Finding that this left inadequate time for Loreng to fully address the voluminous request and that the government failed to follow the procedures set out in 18 U.S.C. § 3664, the Court ruled that the amount of restitution could not be determined at sentencing. The Court set a schedule for supplemental briefing as well as a date for a restitution hearing, which was ultimately held on July 24, 2013.[1]

In discussing the need to delay the determination of restitution at the sentencing hearing, the Court also noted substantive problems in the government's belated request. The government recognized that the Court could only award restitution for the losses to Amy and Cindy caused by Loreng, but offered the Court limited guidance on how to calculate that amount. To calculate the amount of losses caused by Loreng, the government suggested dividing Amy's and Cindy's total losses by the number of defendants who have been ordered to pay restitution in all cases. The Court warned that it was "skeptical" that the approach "offers [a] principled basis for calculating how much of Cindy's and [Amy's] losses the defendant's acts proximately caused." Sentencing Hr'g Tr. at 6:18-22. The Court noted that if a formula is used, the total number of individuals who committed the crime may be the more appropriate denominator. See id. at 6:22-7:3 ("It is unclear why the losses caused by this defendant are related to the number of successful convictions to date. I don't see the correlation there. Instead, the victims' injuries seem more appropriately related to the number of times that the images have been viewed, whether or not the individuals viewing the images are already or will be successfully prosecuted."). The Court suggested direct evidence the government may provide, and instructed that, "[i]nsofar as the government is urging that the Court adopt some more general theory, ... it is incumbent upon the government to suggest a better formula for calculating damages caused by this defendant." Id. at 7:14-17. Finally, the Court asked the government to provide an "estimate of the number of individuals, whether or not they have been successfully prosecuted, who will access the images in the relevant time frame" just "in case" the Court is ultimately persuaded to adopt a formula based on the total number of viewers. Id. at 7:25, 8:7-9.

In support of its renewed request, the government has submitted a set of restitution materials for both Amy and Cindy. It provided a 2008 economic report, written when Amy was 19 years old, which itemizes Amy's projected total losses at $3, 367, 854, including post-2008 treatment and counseling expenses and lost earnings. See Amy Restitution Materials [Docket Entry 30-3] at 114 (Apr. 23, 2013).[2] The restitution materials also contain a letter from Amy's attorney, her victim impact statement, and an expert psychological report from 2008, supplemented by reports of subsequent evaluations. In its updated request, the government seeks a restitution award of $19, 355.48 for Amy, based on its proposed formula of dividing a victim's total losses by the number of defendants convicted for possessing or distributing her images. See Government's Supplemental Req. for Restitution for Amy [Docket Entry 42] at 9 (May 24, 2013) ("Supplemental Amy Req."). As for Cindy, the government provides an economic loss report from 2012, when Cindy was 24 years old, which estimates her losses at $1, 185, 332, a letter from Cindy's attorney, a victim impact statement, a psychological report, and a vocational assessment. The government seeks $28, 222 for Cindy based on the same formula. See Government's Supplemental Req. for Restitution for Cindy [Docket Entry 43] at 9 (May 24, 2013) ("Supplemental Cindy Req."). The probation office concurs in the government's request.

The Amy materials describe the abuse Amy suffered at the hands of her uncle who raped and sexually exploited her when she was a young child to produce images for a child molester in Seattle. See Amy Restitution Materials at 3, 67. The materials address her continued suffering from the underlying abuse, her fear of the uncle who was recently released from prison, her trauma from the fact that the images are out there in the world and that her friends and others might accidentally see them, and the distress from the fact that individuals continue to view these images. A psychologist report explains that Amy "continues to suffer from the ongoing effects of her victimization from child abuse and from the continued use of her image by child pornography viewers, traders, and abusers." Id. at 93-94; see also id. at 67 ("My life and my feelings are worse now because the crime has never really stopped and will never really stop.").

Cindy's materials explain that she was "repeatedly and systematically" sexually abused by her father from infancy until age 12. See Cindy Restitution Materials [Docket Entry 31-3] at 140 (Apr. 23, 2013). The psychologist report details her significant physical and mental health struggles, which began with the abuse and neglect she experience throughout her childhood, and which continue to be significantly affected by her complex relationship with and "conflicting" feelings for her father. Id. at 142-44, 147. They also detail the trauma of discovering, at age 15, that images of the abuse exist and have been disseminated on the internet. Although the materials focus on the effects of the abuse itself, the materials establish that Cindy's "struggle to manage the repercussion of her sexual abuse experience ha[s] been significantly affected by the ongoing actions of those individuals who distribute her pornographic images and those who use her images for deviant sexual excitement." Id. at 150. Further, the "know[ledge] that pornographic pictures of her as a child remain on the internet and continue to be available... has an enduring negative impact on her emotional stability." Id . Cindy's materials indicate that she felt that "she was being abused again and again" when she received notifications of newly-discovered offenders, and that she has opted out of receiving such notices. Id.

ANALYSIS

The governing restitution statute, 18 U.S.C. § 2259, provides that "the court shall order restitution for any offense under this chapter, " which includes child pornography offenses under 18 U.S.C. § 2252A. Section 2259 directs the Court to award "the full amount of the victim's losses." 18 U.S.C. § 2259(b)(1). Losses include costs of medical services, such as psychological care, occupational therapy, and lost income, as well as "any other losses suffered by the victim as a proximate result of the offense." 18 U.S.C. § 2259(b)(3). Interpreting this provision, the D.C. Circuit has held that "restitution awards under § 2259 are limited to harms the defendant proximately caused." See United States v. Monzel , 641 F.3d 528, 537 (D.C. Cir. 2011). In determining the proper restitution award for each victim, the Court must hence determine "the amount of [each victim's] losses attributable to [defendant's] offense and order restitution equal to that amount." Id. at 540. "The burden is on the government to prove the amount of Amy's [and Cindy's] losses [defendant] caused." Id .; see also 18 U.S.C. § 3664(e) ("The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government."). The Court resolves factual disputes "as to the proper amount" of restitution "by the preponderance of the evidence." 18 U.S.C. § 3664(e).

Although most federal courts have, like the D.C. Circuit, found a proximate cause requirement in the statute, these courts have differed in how the proximate cause test applies. Compare United States v. Benoit , 713 F.3d 1, 22 (10th Cir. 2013) ("[T]he district court apparently divided the total loss claimed by Vicky, $1, 224, 694.04, by 222, the number of restitution judgments Vicky had received at the time of the hearing. This implicit calculation does not meet the proximate cause standard we have announced on the record before us."), with United States v. Cantrelle, No. 11-542, slip op. at 19 (E.D. Cal. Apr. 15, 2013) (on remand from the Ninth Circuit awarding Amy $17, 307.44 and Vicky $2, 881.05 by dividing the total award by the number of defendants convicted). Courts in this District may soon get additional guidance on the question, because a case presenting these issues is pending in the D.C. Circuit. See United States v. Monzel , No. 12-3093 (D.C. Cir.) ("Monzel II"). Moreover, the Supreme Court has granted certiorari on the underlying question-whether the statute contains a proximate cause requirement-and, if it adopts the proximate cause test, may provide some guidance on how to apply it. See Paroline v. United States, No. 12-8561.[3] This Court has a statutory obligation to determine restitution now. See 18 U.S.C. § 3664(d)(5). Acting now without the benefit of authoritative guidance that may deem certain formulas or approaches sufficient as a matter of law, the Court will approach the task like any factual question, examining the record to determine whether the government met its burden to establish the amount of Amy's and Cindy's losses attributable to Loreng by a preponderance of the evidence.

I. Showing that Amy and Cindy Are Victims of Loreng's Acts

Restitution is paid to the "victim" of a crime of child sexual exploitation. See 18 U.S.C. § 2259(b)(1). A victim is "the individual harmed as a result of a commission of a crime under this chapter." 18 U.S.C. § 2259(c). As courts across the country have found, a child depicted in a pornographic image is a "victim" within the meaning of section 2259(c). Loreng argues that, in this case, the Court has no basis for finding that Amy and Cindy are in fact the children depicted in images that Loreng viewed, and hence that they are "victims" of his crime.

The government describes one image it claims is of Amy and one image purportedly of Cindy, see Supplemental Amy Req. at 9-10; Supplemental Cindy Req. at 9. But it offers no record citation for these descriptions, nor does it offer any evidence to link those descriptions to the victims named. In other cases, the government has established that the individuals seeking restitution were depicted in the images found in the defendant's possession by submitting reports from the National Center for Missing and Exploited Children that examine the images collected from a certain defendant and identify them. See, e.g., United States v. Berk , 666 F.Supp.2d 182, 185 (D. Me. 2009). The government here did not submit such a report by the time of the restitution hearing. Pressed as to this omission at the hearing, government counsel acknowledged that there was no evidence in the existing record to tie Loreng to images of Amy or Cindy. But government counsel noted that he has in his possession a National Center for Missing and Exploited Children report that would provide the ...


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