U.S.A v. Church
| Decision Date | 05 April 2010 |
| Docket Number | Case No. 3:09-cr-00042. |
| Citation | 701 F.Supp.2d 814 |
| Parties | UNITED STATES of America,v.Mark CHURCH, Defendant. |
| Court | U.S. District Court — Western District of Virginia |
Nancy Spodick Healey, United States Attorneys Office, Charlottesville, VA, for United States of America.
Keith Brian Marcus, Paris Blank LLP, Richmond, VA, for Mark Church.
This matter is before the Court upon the Government's request for restitution on behalf of “Amy,” a child depicted in sexual abuse images unlawfully possessed by Defendant, filed on February 18, 2010 (docket no. 15), and Defendant's response thereto, filed on March 15, 2010 (docket no. 24). After consideration of the arguments set forth therein, and presented at the hearing on March 22, 2010, for the following reasons, the Court will GRANT the Government's request for restitution, and will ORDER the Defendant to pay the victim a nominal figure of restitution in the amount of one hundred dollars, in an accompanying Order, to follow.
The Court concludes infra, that the Defendant's conviction for possession of child pornography is an offense for which restitution is contemplated under 18 U.S.C. § 2259. Further, the Court finds that the Government has met its burden of proving, by a preponderance of the evidence, that Amy is a “victim,” under the statute, meaning that she was “harmed as a result of” Defendant's commission of the offense. There are several distinct harms visited upon a victim as a result of an individual's possession of a pornographic image of the victim as a child, and particularly in this case, the offense constituted a violation of the victim's right to privacy and caused her to suffer emotional harm as a result of the continued circulation and possession of her images. However, the Government is required to show, by a preponderance of the evidence, the measure of the victim's losses proximately caused by the Defendant's offense of conviction. Having reviewed all the evidence in the record, the Court finds nothing upon which it could make explicit findings of fact supporting a calculation of the full amount of the victim's losses proximately caused by the Defendant. The Government has established that the Defendant violated the victim's right to privacy and that consequently, she was “harmed as a result of” his offense. Given that issuance of a restitution award under § 2259 is mandatory, the Court finds it appropriate to award a nominal figure of restitution to the victim, in the amount of one hundred dollars.
In December 2004, a computer repair shop in Louisa County contacted law enforcement officials to report that a computer which had been dropped off for repairs was found to contain child pornography. An investigation revealed that the computer belonged to Defendant Mark Church (“Defendant”), and during an interview with Defendant at his home on December 21, 2004, he admitted that the computer was his, that he was the only user, and that he had collected images of children. Defendant turned over four CD-ROMS, upon which were stored approximately 700 pornographic images. Some of these images depicted prepubescent minors engaged in sexual acts with adults, including several images from the so-called “Misty” series of child pornography.
The victim in the “Misty” series (hereinafter referred to as “the victim” or “Amy” to protect her identity) was repeatedly raped and sexually assaulted by her uncle when she was eight and nine years old. Those acts were photographed and filmed for dissemination to an audience of “end-users” or “consumers” of child pornography. Amy endured this abuse over the telephone and Internet to serve this audience, and during these acts, was forced to hold up signs and otherwise communicate with consumers of child pornography. Her uncle made her meet these individuals; on at least one occasion, he took her into the woods near her home to meet collectors of child pornography. She was further pressured to solicit friends into joining her in the sexual acts. The photographs and recordings of her abuse have been circulated and distributed among consumers of child pornography in the following years, and are allegedly still widely available on the Internet.
Though Defendant was caught in possession of these images in December 2004, he was not charged until approximately five years later. On November 5, 2009, a one count Information was filed by the Government, charging that Defendant had, in or about December 2004, possessed child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). That same day, Defendant pled guilty to the Information pursuant to a written plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The plea agreement provides for inter alia, (1) a term of imprisonment of five years; (2) a term of supervised release of fifteen years and accompanying special conditions; and (3) an agreement to “pay any restitution if any and if applicable, to any victim of the offense.” In exchange, the Government agreed to forego seeking additional charges relating to child pornography from images on Defendant's computer, unless it found evidence that Defendant produced child pornography. The Court accepted his guilty plea, and on March 22, 2010, the Court sentenced Defendant to a five year term of imprisonment and to a fifteen year term of supervised release, and heard arguments from counsel on the availability of an award of restitution in this case.
The victim, by and through her counsel, submitted to the Government a memorandum in support of restitution, and attached certain supporting documentation thereto. On February 18, 2010, the Government filed its Memorandum in Support of Restitution (docket no. 15), incorporating the materials and authorities submitted on behalf of the victim. The Government and the victim argue that the Court is required pursuant to 18 U.S.C. § 2259 to hold Defendant, an individual convicted of possessing child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2), liable for the “full amount” of the victim's losses. The victim estimates that the “full amount” of her losses, including damages for psychological care, lost income and attorney's fees, are calculated to be “at least $3,367,854.” While the Government similarly argues that restitution must be ordered to cover “the full amount of the victim's losses,” it merely states that some courts have chosen to award more than three and a half million dollars in restitution, recognizes the variability of restitution awards, and instead argues that “there is a basis for courts to center restitution awards” around the $150,000 “minimum damage value” set forth in 18 U.S.C. § 2255.
The Defendant argues that the Court should deny the Government's restitution request because the Court must be able to ascertain with reasonable certainty the amount of harm proximately caused by the commission of Defendant's offense. On the basis of the evidence presented, Defendant argues, any such figure would be entirely speculative.
The victim in this case seeks restitution pursuant to the Mandatory Restitution for Sex Crimes section of the Violence Against Women Act of 1994, codified at 18 U.S.C. § 2259. This statute provides, in pertinent part, as follows:
The Fourth Circuit has not yet had the opportunity to interpret the provisions of this statute. See United States v. Hicks, 1:09-cr-150, 2009 WL 4110260, at *2 (E.D.Va. Nov. 24, 2009). Furthermore, whether a defendant convicted of possession of child pornography may be ordered to pay restitution pursuant to § 2259 has not been explicitly addressed in the Western District of Virginia. The Court notes that in United States v. Walsh, 5:09-cr-00027 (W.D.Va. Mar. 16, 2010), restitution was ordered at sentencing in the amount of $1,250.00, an amount agreed upon by the parties, in...
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