U.S. v. Paroline

• Decision Date: 07 December 2009
• Docket Number: Case No. 6:08-CR-61.
• Citation: 672 F.Supp.2d 781
• Parties: UNITED STATES of America v. Doyle Randall PAROLINE.
• Court: U.S. District Court — Eastern District of Texas

672 F.Supp.2d 781

UNITED STATES of America v. Doyle Randall PAROLINE.

Case No. 6:08-CR-61.

United States District Court, E.D. Texas, Tyler Division.

December 7, 2009.

F.R. Buck Files, Jr., Bain Files Jarrett & Bain PC, Tyler, TX, for Defendant.

James R. Marsh, The Marsh Law Firm PLLC, White Plains, NY, for Movant.

Paul Cassell, National Crime Victims Law Institute, Salt Lake City, UT, for

Amicus, National Crime Victim Law Institute, Victim Rights Center.

Yiota G. Souras, The National Center for Missing and Exploited children, Alexandria, VA, for Amicus, The National Center for Missing, and Exploited Children.

William D. Baldwin, U.S. Attorney's Office, Tyler, TX, for Plaintiff.

MEMORANDUM OPINION AND ORDER

LEONARD DAVIS, District Judge.

Before the Court is a Request for Restitution by Amy,¹ who is a victim in the "Misty" child pornography series.² Defendant Doyle Randall Paroline ("Paroline") unlawfully possessed two pornographic images of Amy he obtained over the Internet. Having considered the parties' oral arguments and written submissions, and for the reasons explained below, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline's possession of Amy's two pornographic images and thus, the Request for Restitution is DENIED.

BACKGROUND

On January 9, 2009, Paroline pled guilty to one count of possession of material involving the sexual exploitation of children in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). Paroline admitted to knowingly possessing on his computers between 150 and 300 images of minors engaged in sexually explicit conduct (Docket No. 6). The National Center for Missing and Exploited Children ("NCMEC") identified Amy as at least one of the minors depicted in the pornographic images. Amy is depicted in two of the pornographic images Paroline possessed.³

On June 10, 2009, Paroline was sentenced to 24 months custody in the Bureau of Prisons and 120 months of supervised release. During sentencing, the Court reviewed Amy's Victim Impact Statement and her Request for Restitution under 18 U.S.C. § 2259.⁴ Her Victim Impact Statement detailed not only the harm she has suffered from the abuse by her uncle when she was eight and nine years of age, but the harm she continues to endure ten years later by knowing that pornographic images of her are circulating against her will on the Internet and there is nothing she can do to stop it. In her Request for Restitution, Amy seeks approximately $3,367,854 from Paroline. This amount reflects the total amount of Amy's losses and includes costs for future psychological care, future lost income, and attorney's fees. Amy's Latest Request for Restitution, Docket No. 54-2, at 18. Amy offers no alternate theory of restitution for the portion of her total losses proximately caused by any single defendant's possession of her images. Amy's restitution request is being made by the Government on her behalf. Amy's personal attorney, Mr. James R. Marsh, has also participated in presenting Amy's restitution request in this case.

Because the issue of restitution in child pornography possession cases is one of first impression in this Court, the Court severed the restitution issue from the sentencing proceeding and ordered all interested parties to submit briefing on the issue (Docket No. 13). The Court received briefing from the Government, Amy, Paroline, and other interested parties including NCMEC. On August 20, 2009, the Court conducted a hearing pursuant to 18 U.S.C. § 3664(d)(5) to determine restitution. At the hearing, Paroline requested additional time to obtain the data underlying Amy's restitution request and further brief the restitution issue. In addition, Paroline and his counsel waived the statutory requirement that a final determination concerning restitution be held within 90 days of sentencing (Docket No. 36). Following the August 20 hearing, Paroline filed a motion for certain discovery materials, which the Court granted in part and denied in part (Docket No. 46).⁵ The Court received supplemental briefing from Paroline, the Government, and Amy, and held a second restitution hearing on October 28, 2009 where Paroline presented additional evidence and arguments against Amy's restitution request.

APPLICABLE LAW

The victim in this case seeks restitution under 18 U.S.C. § 2259,⁶ which governs restitution for all offenses involving the sexual exploitation and other abuse of children. 18 U.S.C. § 2259(a). Section 2259 clearly mandates that the sentencing court order a defendant convicted of such an offense to pay restitution to the victim of the crime. 18 U.S.C. § 2259(b)(4)(A). The statute provides that restitution is available for "the full amount of the victim's losses." 18 U.S.C. § 2259(b)(1). Compensable losses under section 2259 include, among other things, any costs incurred by the victim for "medical services relating to physical, psychiatric, or psychological care," "physical and occupational therapy or rehabilitation," and "attorneys' fees, as well as other costs incurred." 18 U.S.C. § 2259(b)(3). Further, section 2259 specifically prohibits the Court from declining to order restitution because of the defendant's economic circumstances or because the victim receives compensation for his or her injuries from another source. 18 U.S.C. § 2259(b)(4)(B). The Government must prove the amount of the victim's losses by a "preponderance of the evidence," and that Court shall resolve any dispute as to the proper amount of restitution by the same standard. 18 U.S.C. § 3664(e).

ANALYSIS

Victim Status Under § 2259

The Court's first task is to determine whether Amy is a "victim" of Paroline's offense. Section 2259 defines a "victim" as any "individual harmed as a result of a commission of a crime under [the Sexual Exploitation and Other Abuse of Children Chapter of Title 18]." 18 U.S.C. § 2259(c). It is undisputed that Paroline was convicted of a crime under this chapter and that Amy was depicted in two of the pornographic images Paroline possessed. Thus, Amy is a victim for purposes of section 2259 if she was harmed as a result of Paroline's possession of her images.

Child pornography fosters the exploitation of innocent and vulnerable children all over the world. It causes irreparable harm to some of the weakest members of our society. Child pornography is a permanent photographic record of the victim's sexual abuse, and the distribution and circulation of the pornographic images forever exacerbates the harm to these child victims. New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) (finding that "[t]he distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children"). In the Supreme Court's landmark decision in New York v. Ferber, the Court extensively discussed the issue of child pornography and the long-term physiological, emotional, and mental harms associated with the sexual exploitation of children. 458 U.S. at 758, 102 S.Ct. 3348. The Court cited to various authorities in the field of child exploitation, noting that:

The use of children as . . . subjects of pornographic materials is very harmful to both the children and the society as a whole. It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults.

. . . .

Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child's actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.

Id. at 758-60, nn. 9 & 10, 102 S.Ct. 3348 (internal quotations and citations omitted).

The Fifth Circuit has also addressed the issue of child pornography. In United States v. Norris, the Fifth Circuit held that "children depicted in child pornography may be considered to be the victims of the crime of receiving child pornography." 159 F.3d 926, 929 (5th Cir.1998). The court determined that "the `victimization' of the children involved does not end when the photographer's camera is put away." Id. The end-user or possessor of pornographic materials may be considered to be causing the children depicted in those materials to suffer as a result of his actions in at least three ways: (1) because the dissemination of the images perpetuates the abuse initiated by the producer of the materials, a consumer who merely receives or possesses child pornography directly contributes to the child's continued victimization; (2) because the mere existence of the child pornography invades the privacy of the child depicted, the recipient of the child pornography directly victimizes the child by perpetuating the invasion of the child's privacy; and (3) because the consumer of child pornography instigates, enables, and supports the production of child pornography, the consumer continuously and directly abuses and victimizes the child subject. Id. at 929-30. Thus, "the victimization of a child depicted in pornographic materials flows just as directly from the crime of knowingly receiving child pornography as it does from the arguably more culpable offenses of producing or distributing child pornography." Id. at 930.

Congress has also long recognized the harm inflicted on victims of child pornography. In the legislative history of the Child Pornography Prevention Act of 1996, Congress specifically cited and broadly quoted from the landmark New York v. Ferber decision finding that "[t]he use of children as subjects of pornographic materials is harmful to the physiological, emotional and mental health of a child." S.Rep. No. 104-358, at 14 (1996) (citing New York...