United States v. Fast

• Decision Date: 13 July 2012
• Docket Number: No. 4:11CR3018.,4:11CR3018.
• Citation: 876 F.Supp.2d 1087
• Parties: UNITED STATES of America, Plaintiff, v. Robert M. FAST, Defendant.
• Court: U.S. District Court — District of Nebraska

876 F.Supp.2d 1087

UNITED STATES of America, Plaintiff,

v.Robert M. FAST, Defendant.

No. 4:11CR3018.

United States District Court,

D. Nebraska.

July 13, 2012.

Paul G. Cassell, Salt Lake City, UT, for Interested Party.

Michael J. Hansen, Federal Public Defender's Office, Lincoln, NE, for Defendant.

Steven A. Russell, U.S. Attorney's Office, Lincoln, NE, Nancy A. Svoboda, U.S. Attorney's Office, Omaha, NE, for Plaintiff.

MEMORANDUM AND ORDER

RICHARD G. KOPF, Senior District Judge.

Based upon the appellate concession of the government that I erred when awarding restitution in this child pornography case, the Court of Appeals remanded this case for me to determine again whether “Vicky” ¹ is entitled to restitution as a result of the defendant's receipt of a video showing her molestation.² It appears that the Court of Appeals may have accepted the proposition that any award of restitution under 18 U.S.C. § 2259 must be based upon a finding of proximate cause. Even if that is not true and the Court of Appeals intended to leave that question for my determination on remand, I now independently conclude, based upon the overwhelming weight of authority, that proximate cause is required for each element of restitution under 18 U.S.C. § 2259. My earlier contrary conclusion was erroneous.

After reading the extensive briefing, hearing the arguments of counsel, and considering the detailed evidence, I find and conclude beyond a reasonable doubt that “Vicky” is entitled to restitution in the sum of $3,333 because Robert M. Fast (“Fast”) proximately caused injury to “Vicky” and “Vicky” suffered that amount of damage as a direct and proximate result of Fast's actions.³ In coming to this decision, I have relied upon and followed United States v. Burgess, 684 F.3d 445, 456–61 (4th Cir.2012) (holding in a child pornography possession and receipt case involving the “Vicky” series that (1) proximate cause exists when the wrongful conduct of multiple actors has combined to bring about harm, even if the harm suffered by the victim might be the same if one of the wrongdoers had not committed the tort; (2) the amount of loss attributable to “Vicky's” exploitation is dependent at least in part on the role that the defendant played in “Vicky's” exploitation; and (3) joint and several liability should not be imposed in the typical “Vicky” case because individual instances of exploitation are separate injuries and the defendant is only responsible for losses sustained by “Vicky” that the defendant proximately caused).

My award of restitution is comprised of (1) $2,500 for medical and psychiatric care, occupational therapy, and lost income under 18 U.S.C. § 2259(b)(3)(A), (B) & (D); and (2) attorney fees and costs under 18 U.S.C. § 2259(b)(3)(E) of $833 (equivalent to one-third of $2,500). The award of restitution will be assessed only against Fast. He will have no liability for the damages caused by other persons who have participated in “Vicky's” exploitation.

I have not awarded restitution for damages suffered by “Vicky” prior to June 25, 2010, the earliest date we have that Fast began committing the offense of conviction. Furthermore, “Vicky's” damages for medical and psychiatric care, occupational therapy, lost income, attorney fees, and expenses from and after June 25, 2010, far exceed the amount of restitution that I have ordered. In addition, this award of restitution is well below the Guidelines' fine range ($17,500 to $175,000) and it is also worth noting that I did not impose a fine.

With the foregoing in mind, I briefly elaborate more fully on the issue of proximate cause. Starting with first principles, the determination of whether “proximate cause” exists is ultimately an exercise in reasoned judgment derived from all the facts and circumstances and viewed from the perspective of the mythical reasonable person.

Using the LimeWire program and the Gnutella network, Fast downloaded child pornography starting as early as June 25, 2010, and law enforcement agents were able to access some of that pornography over the Internet. Some of the pornography on Fast's computer included the “Vicky series.” There is no evidence that Fast redistributed the “Vicky series,” ⁴ but Fast could have easily done so. In short, Fast, like many others who are found guilty of receipt of child pornography, used a computer and a file sharing program to latch on to the “Vicky series” via his interactive path to the Internet.

While Fast directly participated in the further...