U.S. v. Palmer

• Decision Date: 05 August 2011
• Docket Number: Nos. 10–2272,10–2399,10–2724,10–2824.,s. 10–2272
• Citation: 643 F.3d 1060
• Parties: UNITED STATES of America, Appellant/Cross–Appellee,v.Debra PALMER, Appellee/Cross–Appellant.United States of America, Appellant/Cross–Appellee,v.Todd B. Barkau, Appellee/Cross–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

643 F.3d 1060

UNITED STATES of America, Appellant/Cross–Appellee,

v.Debra PALMER, Appellee/Cross–Appellant.United States of America, Appellant/Cross–Appellee,

v.Todd B. Barkau, Appellee/Cross–Appellant.

Nos. 10–2272

10–2399

10–2724

10–2824.

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2011.Filed: July 1, 2011.Rehearing and Rehearing En Banc Denied Aug. 5, 2011.

James C. Bohling, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., Cynthia L. Cordes, Asst. U.S. Atty., on the brief), for appellant-cross-appellee United States of America.Stephen C. Moss, Asst. Fed. Public Defender, Kansas City, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, on the brief), for appellee/cross-appellant Debra Palmer.Lance D. Sandage, The Sandage Law Firm, P.C., Kansas City, MO, argued, for appellee/cross-appellant Todd B. Barkau.Before RILEY, Chief Judge, SMITH, Circuit Judge, and STROM,¹ District Judge.RILEY, Chief Judge.

Debra Palmer and Todd Barkau (collectively, defendants) operated an illicit bondage domination sadism masochism (BDSM) business. The defendants trained Palmer's 12–year–old daughter (child or victim) to become a dominatrix. When the child was 14 years old, defendants sold the girl's services to customers on the internet using webcam sessions and in-person sessions. After the defendants pled guilty to commercial sex trafficking of a child, the district court ordered the defendants to pay $200,000 in restitution to cover the child's future mental health expenses. The government appeals, and both defendants appeal. We affirm in part and reverse in part.

I. BACKGROUNDA. Defendants' Crimes

Barkau, Palmer, and the child lived in the same home. In 2000, when the child was 12 years old, Palmer helped Barkau train the child to become a dominatrix. Palmer also allowed Barkau to engage in sexual intercourse and BDSM activities with her daughter.

In 2002, Barkau created an illicit BDSM business, advertising the child as “Mistress Alisha” on a website.² For approximately two years, Barkau sold the child's services to men for online and in-person BDSM activities—including bondage, beatings, burnings, and genital mutilations. Barkau earned as much as $80,000 from the business.

B. Prior Proceedings

In September 2009, the defendants each pled guilty, pursuant to a binding plea agreement with the government, to one count of commercial sex trafficking of a child, a violation of 18 U.S.C. § 1591 and § 2. See Fed.R.Crim.P. 11(c)(1)(C). The parties agreed Palmer and Barkau would receive 15– and 25–year terms of imprisonment, respectively, and pay restitution to the child.

1. Palmer's Sentencing

In May 2010, the district court accepted the parties' agreement and sentenced Palmer to 15 years imprisonment, a substantial downward variance from her advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines) range of life in prison. The dispute at Palmer's sentencing hearing was the amount of restitution owed to the child.

The government presented the district court with expert testimony from Gerald K. Gentry, Ph.D., a clinical child psychologist. Dr. Gentry estimated the child would incur over $1 million in treatment costs over the course of her lifetime as a result of the defendants' actions—approximately $200,000 in psychotherapy and $800,000 for psychiatry and medication.

Dr. Gentry testified he treated over 200 victims of child sexual abuse in his 30–year career. Dr. Gentry characterized the child's sexual abuse as “one of the two or three most egregious cases that I've been involved with.” Dr. Gentry concluded the child would incur $1 million in treatment because (1) the abuse was especially severe, involving “torture and humiliation” and “all kinds of sexual perversion and degradation”; (2) the abuse began when the child was only twelve and lasted for five years; and (3) the abuse resulted in an egregious “destruction of trust,” as “the victim's mother was directly involved in the decision to move ahead with the abuse.” On that basis, the government asked the district court to order Palmer, jointly and severally with Barkau, to pay the full $1 million in restitution.

Palmer stipulated to Dr. Gentry's qualifications, but objected to the amount of the government's restitution request. Palmer averred, “although ... there's a good possibility counseling expenses will be incurred in the future, ... [there is not] an adequate foundation for this court to determine whether it's a million dollars or two million dollars or five thousand dollars.” On cross-examination, Dr. Gentry conceded he never interviewed the child; “every individual is different”; and he did not know the child's present emotional condition or whether she used medications or abused alcohol or narcotics. Palmer opined Dr. Gentry lacked sufficient information to estimate the child's future expenses, but conceded the district court could “structure an order whereby restitution will be determined as needed as those expenses are incurred.”

The government rejoined, explaining Palmer had not offered any alternative calculation of the child's future expenses. Dr. Gentry insisted “the facts speak for themselves” and an interview might “retraumatiz[e] the victim by delving into the details and bringing up all the memories.” The government stressed Dr. Gentry was conservatively estimating the child's future treatment costs, not diagnosing the child with an illness. Describing his projection as a “median” cost for a victim of similar sexual abuse, Dr. Gentry insisted he was “confident in [his] projections.” The government expressed concern about Palmer's proposed “special condition” of restitution as needed, because that was “never how it's worked in the past”; the government was “not sure there is a practical way to have it work in that format”; and the special condition would result in the victim having “to come up with the money to ... pay for the counseling upfront, and that's why [presently] she can't get the counseling.”

The child, now a young adult in need of treatment, spoke at the hearing and indicated she had attended counseling with state assistance but, having exhausted all available funding, was no longer able to pay the requisite $180 for each counseling session.³ The victim stated she “want[ed] to go to counseling more than anything, but [she] can't afford it.” The victim said she recently lost her job, explaining, “I feel unable to continue in that career track, or any track at all, for that matter, the main reason being that I have so many emotional issues that small situations in my job make me so overwhelmed with flashbacks that I'm unable to continue working.” The victim reported she suffers from depression, anxiety, flashbacks, paranoia, migraine headaches, and seizures. Crying, the victim lamented she lacked a family support system, in part, because her mother participated in her abuse. The child concluded, “[N]othing ... is going to get any easier until I'm able to get some help.”

The district court granted in part and denied in part the government's restitution request, requiring Palmer to pay $200,000 in restitution jointly and severally with Barkau. The court ordered, “A lump sum payment of the full amount is ordered due immediately.” In light of Palmer's indigency, the district court directed Palmer to make quarterly payments of $25, or at least 10% of her earnings, whichever is greater, while incarcerated. After her release, Palmer must make quarterly payments of $100, or 10% of her gross income, whichever is greater. The district court then added Palmer's requested special condition, “requir[ing] [Palmer] to make the payments into an account until that account reaches $5,000. Thereafter, [Palmer] is to maintain the account at $5,000 so that counseling expenses actually incurred can be paid from the account for the victim.”

In discussing the denial of more than $800,000 of the government's restitution request, the district court remarked:

[T]he problem with the evidence is that it is very speculative. And I'm not calling into question at all the expert's credentials, but the record on which his decision was based is very speculative.

He did not, in fact, talk to this particular individual, and victims vary widely as to ... what resiliency they have. And ... that's something that precludes me from accepting as true everything that the expert has said in terms of the amount of services that would be required.

The district court justified its $200,000 restitution award, stating:

[T]here is no question that there is going to be a need for psychiatric—not psychiatric, but psychological services, and I think that the victim has made that clear, as well. But $200,000 ensures that all of even the expert's suggestions concerning 30 years of psychological services will be covered.... I think it is purely speculative that there will be ... $800,000 in medications and hospitalizations. I just don't think that's going to happen. But I don't know one way or the other because I have no basis for looking at this particular individual and seeing how she is going to respond to these circumstances. $200,000 I think ... is a realistic number for compensating the victim for counseling services, and what I've done is also try to take into account [Palmer's] concerns.

Discussing the special condition, the district court observed:

[T]hese payments will come into a fund and as the services are incurred, payments then will be made for those services and the defendant has to keep that fund at at least ... $5,000. And ... if the defendant ever pays $5,000, I'll be surprised, but the fact is there has to be at least $5,000 always in that account up to $200,000 over the lifetime of the defendant.

The government did not object to the special condition. The government appealed, and Palmer cross-appealed.

2. Barkau's Sentencing

In July 2010, the district court sentenced Barkau to 25 years of imprisonment (a...