United States v. Hardy

• Decision Date: 19 April 2010
• Docket Number: Criminal Action No. 09-151.
• Citation: 707 F.Supp.2d 597
• Parties: UNITED STATES, Plaintiff,v.Kelly HARDY, Defendant.
• Court: U.S. District Court — Western District of Pennsylvania

707 F.Supp.2d 597

UNITED STATES, Plaintiff,v.Kelly HARDY, Defendant.

Criminal Action No. 09-151.

United States District Court,

W.D. Pennsylvania.

April 19, 2010.

Craig W. Haller, United States Attorney's Office, Pittsburgh, PA, for Plaintiff.

W. Penn Hackney, Federal Public Defender's Office, Pittsburgh, PA, for Defendant.

MEMORANDUM OPINION

NORA BARRY FISCHER, District Judge.

INTRODUCTION

This case presents an issue of first impression in this District: whether a sentencing court should award monetary restitution under 18 U.S.C. § 2259 to a victim who was depicted in child pornography, from a criminal defendant who received, possessed, and distributed the pornographic images but was not involved with the victim's original abuse or the creation of the images. For the reasons below, this Court holds that restitution can be awarded in such a case. Although this Court has not addressed this issue before, the increasing frequency of victims' restitution requests has brought similar issues before a number of other district courts, which have treated them in a variety of ways. See John Schwartz Child Pornography, and an Issue of Restitution, N.Y. Times, Feb. 3, 2010, at A19.¹

A hearing and argument on the restitution request was held on March 15, 2010. (Docket No. 46, transcript at Docket No. 52). At the hearing, Defendant's counsel expressed to the Court that, should the Court find that restitution is warranted in such a case, then Defendant would need an opportunity “to review, investigate, and contest the amount of damages and the means by which they were developed.” (Docket No. 52 at 4). Likewise, in Defendant's Response to the Government's Brief on Restitution, Defendant expressed an intention to move under the Due Process clause for discovery regarding same. (Docket No. 32 at 12, n. 4). Accordingly, the Court will not make findings of fact regarding the nature and extent of damages at this time. Instead, the questions the Court must answer are: (1) whether the victim seeking restitution is a “victim” as defined by § 2259; (2) whether § 2259 requires that causal connection be shown between the offenses of conviction and the alleged harm to the victim; (3) if so, whether causal connection can be established in this case; (4) if it is established, how a sentencing court should apportion liability; and (5) whether an award of restitution violates the Sixth Amendment right to a jury trial or the Eight Amendment prohibition on excessive fines and cruel and unusual punishment.

FACTUAL BACKGROUND

Defendant, Kelly Hardy, pleaded guilty to distributing, receiving, and possessing child pornography in violation of 18 U.S.C. §§ 2252(a)(1), (a)(2), and (a)(4)(B). (Docket No. 26). According to the Affidavit accompanying the Criminal Complaint, on April 16, 2009 Defendant's home was searched, pursuant to a search warrant issued that day, by Immigration and Customs Enforcement investigators. (Docket No. 1-2 at 5). The investigators found multiple data storage devices and computers in the home, ² and analysis of the seized hard drives revealed thousands of illicit images in Defendant's possession. ( Id.). It was determined that many of these images had been shared by Defendant with others over the internet. ( Id.). Defendant admitted to using an internet file-sharing program, “Gigatribe,” to access child pornography. (Pre-sentence Investigation Report hereinafter “PIR,” at ¶ 20). Some of the child pornography possessed by Defendant depicted children whom law enforcement were able to identify. (PIR at ¶ 27).

One of the victims appearing in pornography possessed by Defendant was identified as “Amy,” a victim who appeared in the “Misty Series” of images. ³ (Victim Impact Statement of Amy hereinafter “VIS-A,” at 1). Amy is currently 21 years of age, and was sexually abused by her uncle, beginning at age 4. ( Id.). Her abuse has caused Amy a great deal of guilt, humiliation, and panic, and has negatively impacted her ability to function normally as an adult. ( Id.). Amy was in psychological therapy as a result of her initial abuse, and showed some improvement. Sometime later she received information that her images had been disseminated amongst countless sexual predators on the internet. Amy now lives every day in fear that she will be recognized because of her images, and the knowledge that her images are being continually viewed has made her feel continually victimized since her discovery. (VIS-A at 1-2). She reports difficulty functioning on a day to day basis, plagued by flashbacks, nightmares, and an inability to focus. ( Id.). Amy cannot drive, has dropped out of school, lives with her parents, and has at times resorted to substance abuse to cope with her memories. ( Id. 2-3).

Dr. Joyanna Silberg, Ph.D.⁴ performed a psychological evaluation of Amy, for purposes of seeking restitution, between June 11, 2008 and November 10, 2008. (Report of Psychological Consultation at 1, hereinafter, “Consult”). Dr. Silberg reports that Amy was first treated in 1998, immediately after the abuse was discovered, when she was 9 years old. ( Id. at 2). By the end of 1999 her therapist indicated that despite severe abuse and her initial presentment of flashbacks, lack of focus, fearfulness, anxiety, depression, hypervigilance, guilt, confusion, and inability to form trusting relationships, she was, “back to normal.” (Consult at 2). As a teenager, Amy had further difficulty coping with her past abuse, and began to drink heavily. ( Id. at 3). At seventeen years of age, Amy first learned that her images had been disseminated on the internet. ( Id.). Her psychological distress increased markedly and she now has difficulty functioning as a normal adult. ( Id.). Dr. Silberg opines that knowing that the images are being viewed by others exacerbates Amy's initial harm caused by her uncle's abuse, and will significantly interfere with therapeutic resolution of her trauma. ( Id. at 3-10). Amy will have difficulty with her abuse for the rest of her life, because she will never be able to escape the reality that her images are part of the public domain. ( Id.). Hence, Dr. Silberg believes Amy will require intensive therapy for the remainder of her life. ( Id.).

Amy has also submitted an Economic Report written by Stan Smith, Ph.D., ⁵ an economist with the Smith Economics Group, Ltd. It calculates Amy's future lost wages and future counseling costs resulting from the continuing trauma of knowing her images will be forever circulating online, which he estimates total $3,367,854.00.⁶

PROCEDURAL BACKGROUND

On April 17, 2009, a Criminal Complaint was filed against Defendant in the United States District Court for the Western District of Pennsylvania, claiming violations of 18 U.S.C. §§ 2252(a)(2) and 2252(a)(4)(B). (Docket No. 1). An Indictment of Defendant followed on May 5, 2009, charging in Counts 1-3, possession, receipt, and distribution of pornographic material in violation of various provisions of 18 U.S.C. § 2252. (Docket No. 11). On October 22, 2009, the Court heard Defendant's Change of Plea from not guilty to guilty, on all counts of the Indictment. (Docket No. 25-26, transcript at Docket No. 50). On December 18, 2010, the Probation Office provided the Court, as well as the government and Defendant's counsel, with copies of Amy's victim impact statement (“VIS-A”)and a letter from her attorney seeking restitution, to which were attached the Consult by Dr. Silberg (and her credentials) and the Economic Report by Stan Smith, Ph.D. (and his credentials), and various secondary supporting materials. On January 15, 2010, the Government filed its Restitution Request and brief in support. (Docket No. 29). The Defendant replied with his brief in opposition on January 29, 2010. (Docket No. 32). The victim's attorney submitted a revised Restitution Request on February 12, 2002, with the same attachments as the original, which was eventually made a part of the record at (Docket No. 51). Defendant filed a reply to the revised Restitution Request on March 9, 2010. (Docket No. 48). A hearing and argument on the restitution request was held on March 15, 2010. (Docket No. 46, transcript at Docket No. 52). Sentencing is presently scheduled for April 23, 2010 at 1:00 p.m.

APPLICABLE LEGAL STANDARD

In the present case, Amy is seeking restitution pursuant to 18 U.S.C. § 2259, which provides for mandatory restitution to any victim of specific offenses pertaining to the “Sexual Exploitation and Other Abuse of Children,” including the offenses at 18 U.S.C. §§ 2252(a)(1), (a)(2), and (a)(4)(B), to which Defendant has pled guilty. § 2259 states:

(a) In general.-Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.

(b) Scope and nature of order.-

(1) Directions.-The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses as determined by the court pursuant to paragraph (2).

(2) Enforcement.-An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.

(3) Definition.-For purposes of this subsection, the term “full amount of the victim's losses” includes any costs incurred by the victim for-

(A) medical services relating to physical, psychiatric, or psychological care;

(B) physical and occupational therapy or rehabilitation (C) necessary transportation, temporary housing, and child care expenses;

(D) lost income;

(E) attorneys' fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.

(4) Order mandatory.-(A) The issuance of a restitution order under this section is mandatory.

(B) A court may not decline to issue an order under this section because of-

(i) the economic circumstances of the

...