U.S. v. Aumais

• Decision Date: 08 September 2011
• Docket Number: Docket No. 10–3160–cr.
• Citation: 656 F.3d 147
• Parties: UNITED STATES of America, Appellee,v.Gerald AUMAIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

656 F.3d 147

UNITED STATES of America, Appellee,

v.Gerald AUMAIS, Defendant–Appellant.

Docket No. 10–3160–cr.

United States Court of Appeals, Second Circuit.

Argued: June 15, 2011.Decided: Sept. 8, 2011.

Gene V. Primomo, Assistant Federal Public Defender (Molly Corbett, on the brief), for Lisa Peebles, Federal Public Defender, Albany, New York, for Defendant–Appellant.Paul D. Silver, Assistant United States Attorney (Elizabeth Horsman, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney for the Northern District of New York, for Appellee.Before: JACOBS, Chief Judge, WINTER and McLAUGHLIN, Circuit Judges.DENNIS JACOBS, Chief Judge:

Gerald Aumais (“Aumais”) appeals from an Amended Judgment of Conviction entered on August 3, 2010 in the United States District Court for the Northern District of New York (Sharpe, J.). Aumais pleaded guilty to transporting and possessing child pornography in violation of 18 U.S.C. § 2252A(a)(1), and (a)(5)(B). The district court sentenced Aumais to 121 months' imprisonment and ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in restitution to finance future counseling costs of “Amy” (a pseudonym), one of the victims depicted in the images and videos. Aumais challenges the restitution order on the ground that his possession was not a proximate cause of Amy's loss. Aumais also argues that the district court committed procedural and substantive error in sentencing him to 121 months' imprisonment. We conclude that: based on the facts in this case, Aumais' possession of Amy's images was not a substantial factor in causing her loss; and that the district court committed no procedural or substantive error in imposing the sentence of imprisonment. Affirmed in part and reversed in part.

Background

Aumais attempted to enter the United States from Canada at the Fort Covington, New York Port of Entry in November 2008, where he was referred for secondary inspection. A search of his car revealed a cache of DVDs and other electronic devices that stored thousands of still images of child pornography and over one hundred such videos. Aumais told border agents that he owned all of the electronic media located in the car and admitted to downloading the child pornography from a peer-to-peer network.

He was charged with: (1) transporting child pornography in foreign commerce, in violation of 18 U.S.C. § 2252A(a)(1); and (2) possessing child pornography that had been transported in foreign commerce, in violation of 18 U.S.C. § 2252A(a)(5)(B). On February 4, 2009, Aumais entered a plea of guilty, without a written plea agreement, to both counts of the indictment.

A.

Aumais' Presentence Investigation Report (“PSR”) reflected a base offense level of 22.¹ The offense level was increased two levels because some of the images were of pre-pubescent minors, see U.S.S.G. § 2G2.2(b)(2); four levels because the material contained sadistic images, see U.S.S.G. § 2G2.2(b)(4); two levels because the offense involved use of a computer, see U.S.S.G. § 2G2.2(b)(6); and five levels based upon the number of images in Aumais' possession, see U.S.S.G. § 2G2.2 (b)(7)(D). Aumais' offense level was reduced three levels for his early acceptance of responsibility, see U.S.S.G. § 3E1.1(a)–(b). With a total offense level of thirty-two and a Criminal History Category of I, the recommended Guidelines range was 121 to 151 months' imprisonment.

The PSR identified a victim known as “Amy,” who sought $3.3 million in restitution pursuant to 18 U.S.C. § 2259. Her Victim Impact Statement explained that she was unable to forget the abuse she suffered at the hands of the uncle (who took the pictures) because the “disgusting images of what he did to [her] are still out there on the internet.” She said she lives in fear that she will be recognized in the pictures that remain on the internet and will be “humiliated all over again.”

The district court found that Aumais was a pedophile, that he presented a danger to children (although the court credited a polygraph result indicating that he had never gone beyond viewing images), and that he was responsible for harm caused to the children in the images. The district court found that a sentence of 121–months' imprisonment (the low-end of the Guidelines range) was appropriate in view of all the 18 U.S.C. § 3553(a) factors. Accordingly, the district court imposed a sentence of 121 months' imprisonment on Count 1 and 120–months' imprisonment on Count 2, to run concurrently, and a five-year term of supervised release. The district court bifurcated the issue of restitution and referred the matter to a magistrate judge for consideration.

B.

On December 22, 2009, Magistrate Judge David Homer conducted an evidentiary hearing on restitution. The only witness to testify, Government witness Dr. Joyanna Silberg, had evaluated Amy at the request of Amy's attorney, James Marsh, on June 11–12, 2008, July 29, 2008, and November 10, 2008. Dr. Silberg recounted that Amy had been sexually abused by her uncle between the ages of 4 and about 7 or 8, that Amy underwent treatment after suffering the abuse, and that the treatment allowed Amy to “function[ ] pretty well normally” until she learned that her image was being traded on the internet, after which she experienced a fear “of being at parties, fear of being in public gatherings,” and had difficulty coping “with her life because of her sense of pervasive helplessness” about the fact that people were viewing her image. Government Appendix 30–31.

Amy discovered that her images were on the internet when she received victim notifications from The National Center for Missing and Exploited Children (“NCMEC”), which compares images of child pornography, identifies those depicted within, and then notifies the victim every time someone is arrested who is found to possess that victim's image. Knowledge that her images were still being viewed caused emotional and psychological problems: she bit her nails to the point of bleeding, took to alcohol, and could not finish college. Dr. Silberg concluded that Amy was a direct victim of Aumais' conduct and that “Mr. Aumais represent[ed] one component of the damages, because Mr. Aumais is one of the individuals arrested for having looked at her picture and possessing it.” See Government Appendix 41–43.

Finally, although Dr. Silberg's contact with Amy was evaluative rather than therapeutic, she recommended that Amy receive therapy once a week from a professional trained in the effects of sexual abuse and trauma on people in Amy's age group. Dr. Silberg opined that Amy might need three courses of inpatient treatment throughout her life to deal with her alcoholism.

On January 13, 2010, the magistrate judge issued a Report and Recommendation that Aumais should be ordered to pay Amy $48,483 in restitution. United States v. Aumais, No. 08–CR–711, 2010 WL 3033821, at *9 (N.D.N.Y. Jan. 13, 2010) (“ Aumais I ”). The court determined that in order to recover restitution, Amy must show that Aumais' possession of her images proximately caused her harm. Id. at *2. If so, Amy could be entitled to payments for future medical costs “if those expenses can be reasonably estimated.” Id. at *3 (citing United States v. Pearson, 570 F.3d 480, 486–87 (2d Cir.2009) (per curiam)). The magistrate judge observed, however, that the issue of “whether a defendant convicted only as a consumer of child pornography may be liable for restitution under § 2259 to a child victim” remained “unaddressed by the Second Circuit.” Id.

According to the Report and Recommendation, “[t]here is no question that consumers, such as Aumais, contribute to the exploitation of child victims, such as Amy, depicted in the child pornography they possess.” Id. at *4. The court recognized that “the uncle's horrific acts of sexual abuse, production of the images, and distribution of those images to others unquestionably constituted the principal cause of the losses identified by Amy.” Id. at *5. At the same time (it was concluded), “if the harm caused by Aumais' possession of Amy's images caused substantial harm to Amy, proximate cause has been demonstrated even if the conduct of others similar to that of Aumais caused equal or greater harm.” Id.

Based on Amy's Victim Impact Statement and Dr. Silberg's testimony, the magistrate judge found that, although Amy had neither contact with Aumais nor knowledge of his existence, his possession of her images exacerbated the harm (originally caused by her uncle) by creating a market for distribution, and by inflicting the humiliation of knowing that the images are out there being exploited by a group of consumers, of whom Aumais was one. Id. at *6. Although Aumais may be among hundreds or thousands of such others, it was found that Amy's harm was not thereby obviated or diminished; rather, “it exacerbate[d] the harm by confirming how expansive has become the number of individuals exploiting Amy's images.” Id.

The findings as to damages are thorough and discriminating, as follows. Where “a party is responsible for exacerbating a pre-existing condition, damages are generally limited to that attributable to the exacerbation and not the original injury.” Id. at *7. The Government failed to prove by a preponderance of evidence that Aumais proximately caused harm that resulted in Amy's difficulties maintaining employment. Id. But the Government did prove by a preponderance of evidence that Aumais caused the need for weekly counseling sessions in the next five years and monthly counseling sessions for five years thereafter. Id. at *8–9. Discounting future counseling costs to present value, the magistrate judge found that the Government proved by a preponderance of evidence that Amy is entitled to $48,483. Id. at *9.

As to joint and several liability, the magistrate judge found that Aumais should be liable for the full amount and that it was “a matter for administration by the...