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United States v. Hite

United States District Court, D. Columbia.

June 29, 2015

UNITED STATES OF AMERICA,
v.
PAUL DAVID HITE, Defendant

Page 92

For PAUL DAVID HITE, Defendant: Barry J. Pollack, LEAD ATTORNEY, MILLER & CHEVALIER CHARTERED, Washington, DC; Claire G. Cardwell, LEAD ATTORNEY, PRO HAC VICE, STONE, CARDWELL & DINKIN, PLC, Richmond, VA; James M. Nachman, PRO HAC VICE, LAW OFFICE OF JAMES M. NACHMAN, Richmond, VA.

For USA, Plaintiff: David B. Kent, Julieanne Himelstein, LEAD ATTORNEYS, U.S. ATTORNEY'S OFFICE, Washington, DC; Darcy Katzin, DEPARTMENT OF JUSTICE, Child Explotiation & Obscenity Section, Criminal Division, Washington, DC.

Page 93

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

This matter comes before the Court on the government's [240] Motion for Restitution, and the government's [250] Supplemental Motion for Restitution. The government seeks restitution for five victims from the " Misty," " 8 Kids," " Sponge B," and " Angela" series pursuant to 18 U.S.C. § 2259(a). On June 12, 2015, the Court held a sentencing hearing in this matter and made oral findings, which the Court INCORPORATES herein, with respect to the issue of restitution for the five victims. That same day, the Court memorialized its ruling through a five written orders, directing restitution to paid by Dr. Hite in the following amounts: $2,500 to John Doe II of the " 8 Kids" series; $2,500 to John Doe IV of the " 8 Kids" series; $5,000 to the victim from the " Sponge B" series; $5,000 to the victim from the " Misty" series; and $1,750 to the victim from the " Angela" series. The Court now enters this Memorandum Opinion setting forth the basis for its ruling.

BACKGROUND

On April 15, 2015, Defendant Paul David Hite pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B), and one count of arranging for a sexual contact with a real or fictitious child in violation of D.C. Code § 22-3010.02. Pursuant to the terms of the plea agreement, the parties agreed to

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an appropriate sentence as to the terms of incarceration, the amount of the fine, and the term of supervised release pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. However, the plea agreement also set forth: " The Court may impose other applicable statutory provisions as part of the sentence, including restitution . . . ." Plea Agmt. at 3, ECF No. [232]. The Court reviewed the terms of the plea agreement during the plea hearing held on April 15, 2015, and ultimately accepted Dr. Hite's plea. Prior to sentencing, on May 6, 2015, the government filed a Motion for Restitution, seeking restitution on behalf of the victims of the " Misty," " 8 Kids," and " Sponge B" series, who had been identified from the 409 images of child pornography extracted from the Thumbcache files on Dr. Hite's laptop. On June 4, 2015, the government filed a Supplemental Motion for Restitution, also seeking restitution on behalf of the victim in the " Angela" series.

At the sentencing hearing on June 12, 2015, the Court addressed the issue of the restitution requests for the one victim in the " Misty" series, the one victim in the " Sponge B" series, the one victim in the " Angela" series, and the two victims, John Does II and IV, in the " 8 Kids" series. At the hearing, Dr. Hite informed the Court that he had reached an agreement with the victims of the " Misty," " Sponge B," and " Angela" series as to the appropriate amount of restitution to be ordered consistent with the relevant legal standard. Dr. Hite informed the Court that he had not reached an agreement with John Does II and IV of the " 8 Kids" series.

LEGAL STANDARD

Pursuant to 18 U.S.C. § 2259, the victims of certain federal crimes, including possession of child pornography, are entitled to mandatory restitution. A victim may recover the full amount of his or her losses including: 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; attorneys' fees, as well as other costs incurred; and any other losses suffered by the victim as a proximate result of the offense. 18 U.S.C. § 2259(b)(3). The amount of restitution ordered with respect to a particular defendant is " proper under § 2259 only to the extent the defendant's offense proximately caused a victim's losses." Paroline v. United States, __ U.S. __, , 134 S.Ct. 1710, 1722, 188 L.Ed.2d 714 (2014). " [W]here it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." Id. at 1727. However, the restitution amount should not be " severe," nor " token or nominal." Id. An award that is neither severe nor nominal " serve[s] the twin goals of helping the victim achieve eventual restitution for all her [or his] child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims." Id.

To determine an appropriate restitution amount, the district court must first determine " the amount of the victim's losses caused by the continuing traffic in the victim's images." Id. at 1728. After the court has determined the amount of the victim's total losses, the district court

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must weigh several factors in determining the relative causal significance of the defendant's conduct in relation to the victim's total losses. Indeed, a district court making such a determination should consider:

the number of past criminal defendants found to have contributed to the victim's general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant's relative causal role.

Id. However, these factors need not be converted to a rigid formula, but rather should serve as rough guideposts for determining an amount that fits the offense. Id. Ultimately," [i]t is well recognized that district courts by necessity 'exercise . . . discretion in fashioning a ...


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