United States v. Hollman
| Decision Date | 14 January 2019 |
| Docket Number | Case No. 1:18-cr-10037-JBM-JEH-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. CHARLES G. HOLLMAN, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
The District Judge referred the "disposition of the issue of restitution" to the undersigned for a Report and Recommendation. (Minute Entry, November 16, 2018); See 18 U.S.C. § 3664(d)(6). For the reasons set forth, infra, the Court finds that the Government has failed to meet its burden to demonstrate the victim's losses and, consequently, recommends that no order of restitution issue.
The Defendant, Charles G. Hollman, pleaded guilty to possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At sentencing, the parties agreed with the Court that, subsequent to when the Pre-Sentence Investigation Report was prepared, two victims, "Jenny" and "Tara," provided notice that they sought restitution. (Sentencing Transcript at p. 2). Due to the late notices regarding restitution, the parties were not prepared to address restitution at the sentencing hearing. Id. at pp. 2-3. The Court therefore set the matter for a restitution hearing after sentencing and referred the issue to the undersigned.
The Court then directed the parties to file memoranda setting forth their arguments on restitution. (Minute Entry, November 16, 2018). The Court also directed the parties to state whether they believed "an evidentiary hearing [was] necessary for purposes of determining restitution, if any." Id.
On November 21, 2018, the Government filed its memorandum. It stated that it did "not believe that an evidentiary hearing [was] necessary for the purpose of determining restitution." (D. 24 at ECF p. 9).1 It also stated that the victim in the "Tara" series is no longer seeking restitution, and the victim in the "Jenny" series seeks $3,000. Id. at p. 5. The Government also asserted in a footnote that legislation was pending in Congress which, if passed into law, would require the Defendant to pay a minimum of $3,000 in restitution to his victim. Id. at p. 5, n. 2. Finally, the Government argued that the factors set forth by the United States Supreme Court in Paroline v. United States, 134 S. Ct. 1710 (2014), supported restitution in the amount of $3,000. The Government attached two exhibits to its memorandum—a victim impact statement from "Jenny" and a chart listing eleven defendants who were convicted of either receiving or possessing images of "Jenny" and ordered to pay her restitution. (D. 24-1).
In the Defendant's memorandum, he agreed with the Government that an evidentiary hearing was not necessary but asked the Court to consider his "age upon release from prison and his very limited ability to pay any amount of restitution." (D. 25).
On January 7, 2019, this Court heard argument on the restitution issue, which consisted of a reiteration of the positions taken in the parties' memoranda. Neither party presented evidence at the hearing.
Title 18 U.S.C. § 2259(a) provides that a district court "shall order restitution for any offense" under Chapter 110 of that title, "which covers a number of offenses involving the sexual exploitation of children and child pornography in particular." Paroline, 134 S. Ct. at 1718. Subparagraph (b)(1) provides that "[t]he order of restitution under this section shall direct the defendant to pay the victim . . . the full amount of the victim's losses. . ." 18 U.S.C. § 2259(b)(1). The section provides that the "full amount of the victim's losses" includes any costs incurred by the victim for:
18 U.S.C. § 2259(b)(3)(A)-(F) (effective through December 6, 2018); 18 U.S.C. § 2259(c)(2)(A)-(F) (effective December 7, 2018) (the deletion of "as a proximate result of the offense" in subsection (F) being the only amendment made to subsections (A)-(F) by the "Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018" (the "Act"), which became law on December 7, 2018).
The issuance of a §2259 restitution order is "mandatory," and a court cannot decline to issue such an order because of the "economic circumstances of the defendant." Id. at (c). Finally, the restitution order "shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A," which, like § 2259(b)(1)(B)(3), also provides that an order of restitution beentered "without consideration of the economic circumstances of the defendant." 18 U.S.C. § 3664(f)(1)(A).
Critically to the disposition in this case, 18 U.S.C. § 3664(e) (emphasis added).
As the Supreme Court's decision in Paroline demonstrates, courts have struggled with determining the amount of restitution in cases where a defendant is convicted of possessing child pornography images which have been circulated on the Internet. See generally, Paroline, 134 S. Ct. at 1727-30. The Court addressed some of the issues that have vexed courts in cases like the one at Bar. For example, it held that a defendant's possession of child pornography has a legally sufficient causal connection to the harm suffered by the victim due to the trafficking in his or her images to allow for an award of restitution. Id. at 1727. The Court also addressed how a court should calculate the relative portion of the victim's aggregate loss for which any one individual possessor is responsible. Id. at 1722. The Court stated, "It is perhaps simple enough for the victim to prove the aggregate losses, including the costs of psychiatric treatment and lost income, that stem from the ongoing traffic in her images as a whole," an amount which the Court referred to as "a victim's general losses." Id. The more difficult question is "determining the 'full amount' of those general losses, if any, that are the proximate result of the offense conduct of a particular defendant who is one of thousands who have possessed and will in the future possess the victim's images but who has no other connection to the victim." Id. The Court then addressed howa court assigns the relative portion of "general losses" to a defendant for his role in producing those losses of the victim.
The Court rejected the argument that every defendant should be responsible for the entirety of a victim's general losses. Id. at 1725-26. Instead, the Court held that where a victim "has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant," then a court should "order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." Id. at 1727. Such an amount would be neither "severe" nor "nominal or token" and be based upon a court's consideration of several factors. Id. As the "starting point," a court should calculate the victim's general losses and then determine the defendant's relative role in producing those losses by looking to factors such as:
the number of past criminal defendants found to have contributed to the victim's general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant's relative causal role.
Applying this method outlined in Paroline, the Seventh Circuit in United States v. Sainz, 827 F.3d 602, 605 (7th Cir. 2016), affirmed the district court's restitution order, which required the defendant to pay his victim $8,387.43. The court noted that the district court followed the "same procedure" as set forth in Paroline by "first calculating the total loss and then determining what fraction ofthat loss should be attributed to the defendant." Id. at 606. Specifically, using what the Seventh Circuit described as the "1/n method," the district court found the victim's total losses and determined that the defendant was the 136th offender who had been prosecuted and ordered to pay the victim restitution. Id. at 605. It then divided the "total loss by 136" to arrive at the defendant's relative share of that total amount. Id. The Court of Appeals found the amount of restitution to be "substantively reasonable" and "neither severe nor trivial." Id. at 606.
Section 2259, Paroline, and Sainz, make clear that the prerequisite for determining a defendant's relative share of a victim's total losses is first determining what the victim's total losses are. Without a figure for the total losses, it is impossible to calculate a relative share of that unknown number. Paroline and Sainz addressed how to calculate a defendant's relative responsibility for the total loss. In both of those cases, the courts had a total loss figure from which to calculate the defendant's relative share of that loss—$3.4 million in Paroline and $1.14 million in Sainz. Paroline, 134 S. Ct. at 1718; Sainz, 827 F.3d at 605 (...
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