United States v. Clayton

• Decision Date: 27 December 2022
• Docket Number: CRIMINAL ACTION 18-524-RBS
• Parties: UNITED STATES OF AMERICA v. VICTOR CLAYTON
• Court: U.S. District Court — Eastern District of Pennsylvania

UNITED STATES OF AMERICA v. VICTOR CLAYTON

CRIMINAL ACTION No. 18-524-RBS

United States District Court, E.D. Pennsylvania

December 27, 2022

MEMORANDUM

SURRICK, J.

Presently before the Court is Defendant Victor Clayton's pro se Motion Objecting to Victim's Impact Statement and Government's Supplemental Sentencing Memorandum (ECF No 239), the Government's Response thereto (“Gvt. Rsp.,” ECF No. 241), and Defendant's pro se Reply to the Government's Response (ECF No. 245). For the following reasons, the deadline for imposing restitution under 18 U.S.C. § 3664(d)(5) is extended for 90 days to allow the Government to present additional evidence.

Defendant entered a plea of guilty to two counts of knowingly recruiting, enticing, harboring, transporting, providing obtaining, and maintaining Minor 1 and Minor 2, and attempting to do so, knowingly and in reckless disregard for the fact that Minor 1 and Minor 2 were under the age of 18 and would be caused to engage in commercial sex acts, in violation of 18 U.S.C. §§ 1591(a)(1) and 1594(a). (Tr. of Guilty Plea Hr'g at 20:11-16, ECF No. 182.) The Government requested restitution of $3,600 to Minor 1-half of the proceeds from her sex work that Defendant took for himself-and $10,400 in restitution to Minor 2 to pay for weekly psychotherapy for two years. (Gvt. Rsp. at 2.)

The Government based its restitution request for Minor 1 on records showing that Defendant had reserved hotel rooms for a total of 15 days for the purpose of Minor 1 engaging in commercial sex, and Minor 1's grand jury testimony that each day she was forced to have sex with approximately six clients for a minimum price of $80 each. (Id.) We accept this calculation of restitution for Defendant's ill-gotten gains from Minor 1. The Government followed established methodology in calculating the ill-gotten gains restitution required under 18 U.S.C. § 1593(b)(3). See, e.g., United States v. Fu Sheng Kuo, 620 F.3d 1158, 1164 (9th Cir. 2010) (affirming the calculation of restitution for sex trafficking as “(average price of each commercial sex act) x (average estimated number of commercial sex acts performed) = restitution,” while holding that the district court erred in applying that calculation in the case at bar).

The Government based its request for Minor 2's weekly psychotherapy on her victim impact statement, describing the trauma that Defendant's attempted trafficking and sexual assault had caused her, and an “Affidavit,” in which a Government paralegal reported in an unsigned document that she had contacted the United States Department of Health and Human Services and received an estimate of the average hourly cost of such treatment in the area. (Supp. Sentencing Memo., Exhibit A.) This evidence is insufficient.

Under the Trafficking Victims Protection Reauthorization Act (TVPRA), a sex trafficking victim is entitled to mandatory restitution for the “full amount of the victim's losses ....” 18 U.S.C. § 1593(b)(1). The TVPRA defines this amount by reference to 18 U.S.C. § 2259(c)(2) as “any costs incurred, or that are reasonably projected to be incurred in the future, by the victim, as a proximate result of the offenses involving the victim ....” Id. This includes, inter alia, “medical services relating to physical, psychiatric, or psychological care” and “lost income[.]” Id. The Government bears the burden of proving the proper amount of restitution by the preponderance of the evidence. United States v. Vitillo, 490 F.3d 314, 330 (3d Cir. 2007) (citing 18 U.S.C. § 3664(e)).

The Government did not meet its burden here. First, the Government provides no basis for its conclusion that the correct treatment for Minor 2's trauma is very specifically two (and only two) years of weekly psychotherapy. There is no doubt from Minor 2's victim impact statement, and the plain facts to which defendant pled, that she suffered severe trauma and is in need of mental health treatment. Furthermore, despite its informal presentation, we accept the Government's representation of the price of such treatment in the area. However, the suggested length and frequency of that treatment, which of course dictates its total cost, appears arbitrary and thus cannot form the basis for restitution. See United States v. Dagostino, 520 Fed. App'x 90, 92 (3d Cir. 2013) (“The Government submitted only one victim impact statement. The statement contained a devastating portrayal of an adult haunted by grotesque and unjustifiable wrongs done to her as a child . . . Unfortunately, however, the Government's failure to submit timely some evidence by which to measure [the victim's] financial loss precludes us from affirming the District Court's modest restitution order.”); United States v. Julian, 242 F.3d 1245, 1248 (10th Cir. 2001) (“[R]estitution orders pertaining to costs associated with medical and related services must be specific and contain ‘details as to dollars not generalities,' and . . . the district court must support its restitution order with findings of fact in the record.”); United States v. Laney, 189 F.3d 954, 967 n.14 (9th Cir. 1999) (“district courts must estimate the amounts that victims will spend on future counseling with reasonable certainty, in accordance with the procedures set forth in 18 U.S.C. § 3664.”).

In addition, while we would like to think it self-evident that Defendant's crimes against Minor 2 necessitate mental health treatment, the law requires more, which the Government did not provide. Specifically, the Government was required to “establish that the defendant's conduct has directly and proximately caused the losses for which the Government seeks restitution.” United States v. Anthony, 22 F.4th 943, 950 (11th Cir. 2022) (internal quotation marks omitted). Defendant correctly argues that Minor 2 required mental health treatment prior to his crimes against her. While this does not foreclose restitution for treatment to address those crimes, the Government is required to differentiate between the treatment Minor 2 seeks as a direct and proximate cause of Defendant's crimes and that which she would have sought regardless. See id. (“In recommending restitution for a lifetime of therapy and medication costs, [the Government's expert] did not even attempt to disaggregate the harms Mr. Anthony caused from the other harms R.W. suffered.”).

In nearly every case found addressing this topic, the Government has met its burden by offering expert testimony linking the need for treatment to the defendant's actions, diagnosing the victim, and opining on what type and length of treatment is necessary. For example, the Third Circuit has affirmed a district court determination that a defendant distributing child pornography of the victim was the proximate cause of her need for psychiatric care because:

In reaching its conclusion, the District Court relied upon the expert opinion of Jodi Pritchard, a licensed social worker and treatment coordinator at the long-term psychiatric facility where the girl was treated. In a letter to the court, Ms. Pritchard stated that Crandon's contacts with the victim were “a significant contributing factor in [the girl's] worsening depression and suicide ideation.” The government also presented a report of the psychiatrist who treated the girl and concluded that Crandon's conduct “exacerbated” her depression and led to her hospitalization.

United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) (citations omitted) (alterations in original). See also, e.g., United States v. Sanderson, 515 Fed. App'x 16, 19 (2d Cir. 2013) (“The government's proposed figure was supported by the affidavit of a licensed social worker who had worked extensively with the victim, and who stated that she based her conclusions regarding future need for care upon her professional experience.”); United States v. Palmer, 643 F.3d 1060, 1068 (8th Cir. 2011) (“[The] expert opinion provided the district court with a reasonable estimate of the child's future...