Sixth Circuit Reviews Restitution Award in Pornography Case

The U.S. Sixth Circuit Court of Appeals addressed the issue of a defendant who was ordered to pay restitution to the victims of the possession of child pornography. U.S. v. Hargrove was released on April 19, 2013.

Hargrove pleaded guilty to possession of child pornography. He possessed over 800 images and 16 videos of children. At sentencing, the district court judge ordered the defendant to pay restitution to three of these individuals who are now adults. Additionally, the court imposed joint and several liability on the defendant just in case these individuals were not able to obtain the resources to pay for psychological treatment from other convicted defendants who also viewed these videos and images. The defendant asked the appellate court to set aside the restitution order, arguing that the government was not required to prove that he caused actual and proximate harm to these individuals—and because the court did not have the authority to enter the contingent restitution order as well.

In his appeal, the defendant only challenged the restitution order. Based upon various expert reports and materials, the victims claimed that they were subjected to substantial losses, mostly for psychological treatment. Using pseudonyms, “Amy” claimed over $3.3 million; “Vicky” over $148,000; and “L.S.” $150,000. The court determined that the mandatory restitution statute, 18 U.S.C. § 2259, provided statutory causation to support the restitution order; however, the court held that apportionment of the losses was appropriate since other courts had ordered restitution to be paid to these same individuals in other cases. In turn, the court ordered the defendant to pay $3,000 to each person. Alternatively, the court imposed joint and several liability on the defendant in the amount of $150,000 for each person, if it turned out that these individuals were not getting appropriate treatment due to lack of money.

In its analysis, the Court stated that the parties agreed that the district court erred by ordering restitution without requiring that the government prove that the losses were proximately caused by the defendant’s crime. The Court referred to a case, Gamble, which stated that a child pornography victim may recover restitution under § 2259 if it is shown that the defendant actually did cause the victim’s losses—and that the defendant’s actions proximately caused the harm. Moreover, proximate cause indicates the harm is reasonably foreseeable. The Court held in another case, Evers, that the government bears the burden to demonstrate that the victim’s costs incurred were proximately caused by the defendant’s crime. These cited cases were not decided at the time of the defendant’s sentencing.

No evidence exists they knew he possessed pornography

The defendant argued that he is not the cause-in-fact of the individuals’ injuries as no evidence exists that they knew he possessed the pornography, or that the injuries became more severe because he acquired and viewed the images. In addition, he also argued that he did not proximately cause the harm because any harm resulted from his anonymous downloads was indirect and remote. However, The Court stated it rejected this argument in Gamble, because a cause-in-fact requirement does not mean necessarily that unknown defendants have not caused losses; the individual’s losses result from knowing the image is being circulated generally, and a district court could find that defendants contributed to that knowledge.

The Court vacated the restitution order and remanded the case for further proceedings consistent with this opinion, Evers, and Gamble. Furthermore, the Court stated that if the government carries its burden and proves a restitution award for the individuals is appropriate, then the Court must consider that the defendant is not responsible for harm inflicted before the date of his offense. Then the district court would determine the victim’s provable losses not traceable to one defendant under the proximate cause standard outlined in Gamble and then divide it by the number of convicted possessors of child pornography supplied by a government database. Although, the Court stated that district courts may consider other formulas for allocating restitution as well. Finally, the Court indicated that restitution may not be apportioned by imposing joint and several liability.

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