United States v. Lundquist

Decision Date09 September 2013
Docket NumberDocket No. 11–5379–cr.
PartiesUNITED STATES of America, Appellee, v. Avery LUNDQUIST, Defendant–Appellant.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Richard A. Friedman (Lanny A. Breuer, Assistant Attorney General, Gregory D. Andres, Acting Deputy Assistant Attorney General, Richard S. Hartunian, United States Attorney for the Northern District of New York, Tamara Thomson, Assistant United States Attorney, on the brief), United States Department of Justice, Washington, D.C., for Appellee.

James P. Egan (Lisa A. Peebles, Federal Public Defender, Melissa A. Tuohey, Assistant Federal Public Defender, on the brief), Federal Public Defenders, Syracuse, NY, for DefendantAppellant.

Before: CHIN and LOHIER, Circuit Judges, and GARDEPHE, District Judge.*

CHIN, Circuit Judge:

In this case, defendant-appellant Avery Lundquist was convicted of receiving and possessing child pornography. Among the images in his possession was one of “Amy,” the pseudonym for a young woman who was sexually abused by her uncle when she was four years old. The uncle photographed his abuse of Amy, and disseminated those images on the Internet.

Amy is now in her twenties, and the pornographic images her uncle took of her continue to be traded on the Internet. Some 113 individuals—including Lundquist—have been convicted of possessing images of her. The questions presented are whether Lundquist may be ordered to make restitution to Amy and, if so, in what amount.

The district court (Suddaby, J.) concluded that Lundquist proximately caused $29,754.19 of Amy's losses, but decided he should be held jointly and severally liable, along with all others convicted of possessing Amy's images, for her total losses of $3,381,159. We conclude that there was sufficient evidence to support a finding of proximate cause and that the district court reasonably estimated the share of Amy's losses to be attributed to Lundquist as her total loss divided by the number of persons convicted of possessing her images at the time of the restitution request. The district court abused its discretion, however, by including in its calculations losses that Lundquist could not have proximately caused and by holding Lundquist jointly and severally liable for harm caused by defendants who were not before the court. Accordingly, we affirm in part, vacate in part, and remand for recalculation of the amount of restitution.

STATEMENT OF THE CASE
A. The Facts
1. Lundquist's Possession of Child Pornography

On March 5, 2010, law enforcement found Lundquist in possession of child pornography and arrested him. He later admitted that he had downloaded the pornography from the Internet on or around February 14, 2010. On December 22, 2010, he pled guilty to a two-count indictment charging him with receiving and possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (a)(5)(B). The district court sentenced him principally to 210 months in prison. Among the images of child pornography in his possession was an image of Amy.

2. Amy's Images

As noted above, Amy was sexually abused by her uncle when she was four years old. He photographed his abuse of her and disseminated those images on the Internet. In the late 1990s, law enforcement was able to track these images back to her uncle and prosecute him for these crimes. He was convicted of related charges in both federal and state court.

Amy began undergoing psychological treatment for symptoms resulting from her uncle's abuse in 1998, at age nine. At the time, Amy responded so well to treatment that her therapist declared that she was “back to normal” within a year and her treatment was discontinued. Joyanna Silberg, Report of Psychological Consultation 2 (Nov. 21, 2008) [hereinafter 2008 Report]. In 2008, however, expert psychologist Joyanna Silberg, Ph.D., concluded that the earlier prognosis was overly “optimistic” because Amy's symptoms had re-emerged during her adolescence and her “history [had] conform[ed] to the expected trajectory of victims like herself who experience early sexual abuse.” Id. at 2–3, 8.

Among other factors causing the re-emergence of her symptoms, in 2005, when she was seventeen, Amy received her first notice that another person had been found in possession of the images that her uncle had created and disseminated on the Internet. Since 2005, Amy has received hundreds of similar notices.1 During a psychological evaluation conducted in 2008, Amy told Dr. Silberg that she felt as if “each discovery of another defendant that has traded her image re-traumatizes her again.” Id. at 3. In her 2008 Report, Dr. Silberg explained why Amy felt this way:

[R]ecovery from post-traumatic stress requires foremost a sense of safety that the trauma is over and that the past will not be replayed in the present [.] Yet, a victim of child pornography whose pictures remain present on the internet can never really have that sense of safety, or separation of the past and present. The past, in fact continues to be repeated in the present over and over again....

Specifically, Amy's awareness of these pictures, [and] knowledge of new defendants being arrested become ongoing triggers to her.

Id. at 9 (citation omitted).

After consulting with an attorney, Amy began to seek restitution from persons convicted of possessing her images, pursuant to the mandatory restitution provision in the Violence Against Women Act of 1994. Amy submitted her first request for restitution in 2008 and has since submitted requests in more than 100 cases. See United States v. Lundquist, 847 F.Supp.2d 364, 375 (N.D.N.Y.2011).2

3. Amy Learns About Lundquist

After law enforcement agents arrested Lundquist on March 5, 2010, they submitted the pornography found in his possession to the Child Victim Identification Program of the National Center for Missing & Exploited Children (“NCMEC”) for comparison with known child victims from other criminal investigations.3 The NCMEC identified Amy in one of the images in Lundquist's collection. The government then notified Amy of the pending proceedings against Lundquist so she could assert her rights.4

Between the dates of Lundquist's arrest and his guilty plea, Amy visited Dr. Silberg twice for psychological re-evaluations. On August 17, 2010, Amy met with Dr. Silberg to determine whether she was still suffering from the symptoms documented in the 2008 Report. After this consultation, Dr. Silberg concluded in a report dated October 21, 2010:

It is clear that many of the symptoms that Amy evidenced in the initial evaluation [in 2008] remain, and some have worsened....

...

She continues to have post-traumatic symptoms, such as being triggered by the basement door at her uncle's house....

...

Amy continues to struggle with making academic and vocational progress, is paralyzed by shame and struggles with feelings of victimization, and had begun to recapitulate this re-victimization. Despite feelings of guilt and shame she is unable to halt these processes.

Joyanna Silberg, Update on Psychological Consultation 3–4 (Oct. 21, 2010) [hereinafter 2010 Report].

Amy returned to Dr. Silberg for a second re-evaluation on December 20, 2010. During this interview, Dr. Silberg and Amy discussed Amy's reasons for seeking restitution from defendants convicted of possessing her images. Amy explained that she believes that it is important for those people who are continuing to victimize her to pay in some way, so that they have some knowledge of the harm they are causing.” Joyanna Silberg, Update on Psychological Consultation 3 (Jan.23, 2011) [hereinafter 2011 Report]. During that same session, Amy also “briefly discussed her incarcerated uncle and her fear that he will be released from prison soon as one of the things holding her back in her life.” Id. Based on this evaluation, Dr. Silberg concluded:

Amy's inability to move forward is ... inhibited by a sense of pervasive fear. She describes fear of her uncle ... as well as the pervasive fear of multitudes of men out there who could recognize her from a picture and have already abused her in their fantasies....

It is clear that Amy continues to suffer from the ongoing effects of her victimization from child abuse and from the continued use of her image by child pornography viewers, traders, and abusers.

Id. at 4.

B. Proceedings Below

On April 14, 2011, Amy's attorney submitted, on her behalf, a request for restitution from Lundquist. Attached to the letter request were Amy's Victim Impact Statement, Dr. Silberg's 2008, 2010, and 2011 Reports, and a 2008 expert economic report prepared by Stan Smith, Ph.D., which calculated Amy's lost future income, the cost of her future treatment, and the value of her decreased enjoyment of life (the “Smith Report”).

The government presented Amy's restitution request to the district court in its sentencing memorandum. In addition to Amy's materials, the government enclosed the NCMEC's identification report and a table of other defendants convicted of possessing Amy's images. At the June 17, 2011 sentencing hearing, the district court indicated its intent to order restitution in the amount of $37,126.50. This amount was based on the restitution order issued in a recent case involving another defendant who had been convicted of possessing Amy's images. See United States v. Aumais, No. 08–CR–711, 2010 WL 3033821 (N.D.N.Y. Jan. 13, 2010), report and recommendation adopted by,2010 WL 3034730 (N.D.N.Y. Aug. 3, 2010), aff'd in part and rev'd in part,656 F.3d 147 (2d Cir.2011). The district court deferred decision on the issue of restitution, however, to allow the government to consult with Amy and to await this Court's decision in Aumais.

After the sentencing hearing, the government submitted a letter confirming that Amy was willing to accept the proposed amount of restitution, but Lundquist submitted letters renewing both his objection to any order of restitution and his request for a...

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