United States v. Whitley

• Decision Date: 11 January 2019
• Docket Number: No. 16 CR 719,16 CR 719
• Citation: 354 F.Supp.3d 930
• Parties: UNITED STATES of America v. William WHITLEY, a/k/a "Will" and "Willie"
• Court: U.S. District Court — Northern District of Illinois

354 F.Supp.3d 930

UNITED STATES of America

v.William WHITLEY, a/k/a "Will" and "Willie"

No. 16 CR 719

United States District Court, N.D. Illinois, Eastern Division.

Signed January 11, 2019

Sarah E. Streicker, AUSA, Elizabeth Rose Pozolo, Michelle Petersen, Scott Dennis Heffron, United States Attorney's Office (NDIL - Chicago), Chicago, IL, Pretrial Services, Probation Department, for United States of America.

MEMORANDUM OPINION AND ORDER

Virginia M. Kendall, United States District Judge

This Court convicted William Whitley of one count of sex trafficking of children, 18 U.S.C. § 1591(a)(1), and accordingly sentenced him on September 13, 2018. (Dkt. 90.) The Victims of Trafficking and Violence Protection Act (VTVPA) and the Mandatory Victims Restitution Act (MVRA) required restitution, 18 U.S.C. § 1593(a), so the Court ordered Whitley to pay $246,286.59 to a trust that will disburse the funds as necessary to the four minor victims. See United States v. Charles , 895 F.3d 560, 565 (8th Cir. 2018) ; In re Sealed Case , 702 F.3d 59, 66 (D.C. Cir. 2012) ; (Dkt. 94–95).

Under the VTVPA and MVRA, the defendant must pay for "the full amount of the victim's losses," including medical services, therapy and rehabilitation, transportation, housing, child care, and "any other losses suffered by the victim as a proximate result of the offense." 18 U.S.C. § 1593(3) (citing § 2259(b)(3) ). The government bears the burden of proving the restitution amount by a preponderance of the evidence. See Charles , 895 F.3d at 565 ; United States v. Hosking , 567 F.3d 329, 334 (7th Cir. 2009), abrogated on other grounds by Lagos v. United States , ––– U.S. ––––, 138 S.Ct. 1684, 201 L.Ed.2d 1 (2018) (asserting that it is the government's role to connect the defendant's misconduct to the victim's losses). In this case, the government failed to appropriately analyze restitution and satisfy its statutory responsibility to safeguard the victims' interests.¹ See, e.g. , United States v. Darbasie , 164 F.Supp.3d 400, 406 (E.D.N.Y. 2016) (citing 18 U.S.C. § 3664(e) ).

No matter; it remains this Court's duty to " ‘engage in an expedient and reasonable determination of appropriate restitution by resolving uncertainties with a view toward achieving fairness to the victim ...’ " United States v. Jones , 747 Fed.Appx. 348, 360, 2018 WL 4053870, at *9 (6th Cir. 2018) (emphasis added) (quoting United States v. Huff , 609 F.3d 1240, 1248 (11th Cir. 2010) ); see United States v. Dillard , 891 F.3d 151, 161 (4th Cir. 2018) (stating that Congress charged the district court with these responsibilities because the VTVPA and MVRA entitle the victims to restitution).

From this view, the Court takes the opportunity to clearly explain its finding that the government's position was incomplete and justify the $246,286.59 restitution award. See id. (citing United States v. George , 403 F.3d 470, 473–74 (7th Cir. 2005) ); Hosking , 567 F.3d at 333 (recognizing that district courts must provide explanations of their reasoning for restitution orders and support them with factual findings); Dillard , 891 F.3d at 161 (explaining that if the government's proposed restitution award does not account for things that concern the court, it can adjust the amount and explain its reasons for doing so).

I

Calculating a restitution award is neither an exact science nor a "precise mathematical inquiry." United States v. Hoskins , 876 F.3d 942, 947 (8th Cir. 2017), cert. denied , ––– U.S. ––––, 138 S.Ct. 2589, 201 L.Ed.2d 305 (2018) (quoting Paroline v. United States , 572 U.S. 434, 134 S.Ct. 1710, 1727–28, 188 L.Ed.2d 714 (2014) ). In practice, courts must use discretion and judgment to analyze the " ‘significance of the individual defendant's conduct in light of the broader causal process that produced the victim's losses.’ " Id. (quoting Paroline , 134 S.Ct. at 1727–28 ).

That said, this Court has no discretion to "award restitution for anything less than the full amount of the victim's losses[.]" United States v. Desnoyers , 708 F.3d 378, 389 (2d Cir. 2013) (quoting United States v. Walker , 353 F.3d 130, 131 (2d Cir. 2003) ). Congress intended as much because "[t]he MVRA's overriding purpose is to compensate victims for their losses." United States v. Robers , 698 F.3d 937, 943 (7th Cir. 2012), aff'd , 572 U.S. 639, 134 S.Ct. 1854, 188 L.Ed.2d 885 (2014) (internal citations and quotations omitted). Put differently, the statute thus seeks "to make victims of crime whole, to fully compensate these victims for their losses and to restore these victims to their original state of well-being." Id. (internal citations and quotations omitted).

To accomplish this goal, Congress authorized the "full amount" of losses and left it to the district courts to sort out what those losses are. 18 U.S.C. § 1593(3) (citing § 2259(b)(3) ); see Dillard , 891 F.3d at 158. These losses include—but are not limited to—the losses cognized in the Act. See Dillard , 891 F.3d at 158. "[W]hile the statute informs the court's analysis as to a proper amount of restitution, it sets no numeric limits on the amount of restitution that can be ordered." Id. Congress wanted district courts to " ‘have broad discretion in ordering restitution...to compensate the victims of sexual abuse for the care required to address the long term effects of their abuse.’ "

United States v. Rockett , No. 16-30213, 752 Fed.Appx.. 448, ––––, 2018 WL 5786131, at *1 (9th Cir. Nov. 5, 2018) (quoting United States v. Laney , 189 F.3d 954, 966 (9th Cir. 1999) ); see United States v. Evers , 669 F.3d 645, 656 (6th Cir. 2012).

Because of "the devastating and long-term effects that the sexual exploitation of children can have both upon the victims of that abuse and greater society," the victim's losses that the Court may order the defendant to restitute in these cases may be retrospective or prospective. See United States v. Danser , 270 F.3d 451, 455 (7th Cir. 2001) (citing New York v. Ferber , 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982) ); see also United States v. Funke , 846 F.3d 998, 1001 (8th Cir. 2017) (holding that future losses are compensable); United States v. Rogers , 758 F.3d 37, 39 (1st Cir. 2014) (same); United States v. Pearson , 570 F.3d 480, 486 (2d Cir. 2009) (same); United States v. Julian , 242 F.3d 1245, 1246–48 (10th Cir. 2001) (same); Laney , 189 F.3d at 966–67 (same). Though this amount must be reasonably certain, the Seventh Circuit is "mindful of the inherent uncertainties attendant upon an award of prospective damages." Id.

Understanding restitution this way acknowledges that a child's loss is for a lifetime. See id. ; United States v. Doe , 488 F.3d 1154, 1160 (9th Cir. 2007) ; see , e.g. , United States v. Padilla , No. 4:17-CR-00137-DCN, 2018 WL 4365494, at *2 (D. Idaho Sept. 13, 2018) (citing Laney , 189 F.3d at 966, and maintaining that, although there is no guarantee of lifetime counseling, "Congress is well aware that children victimized by sexual abuse often do not recover quickly from their injuries."). For that reason, victims need not promise or guarantee anything to receive a prospective award. See Rockett , 752 Fed.Appx. at ––––, 2018 WL 5786131 at *2 (affirming restitution award without "requiring actual use of the award for its specified purpose"). Indeed, the victim does not need to be in therapy at the time of restitution, see United States v. McKay , No. 00-30024, 2000 WL 1517159, at *1 (9th Cir. 2000), nor does she need to be interested in seeking treatment then. See In re Sealed Case , 702 F.3d 59, 67 (D.C. Cir. 2012) ("We compensate a victim with restitution, that is money—whether she chooses to use the money in a particular way is up to her.").

II

A

The issue here is whether the minor victims suffered losses that the law provides restitution for. The minors are of course victims within the meaning of the statute and the defendant caused their losses.² The question, then, is really one of amount. The government's preliminary views of that figure did not comport with the statute or the case law interpreting it.

First, a victim suffers a compensable loss even if she did not pay for it out of pocket. See 18 U.S.C. § 2259(b)(4)(B)(ii) ("A court may not decline to issue [a restitution order due to]...the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source."); see , e.g. , United States v. Antonio , No. CR 15-0776 JB, 2017 WL 2266862, at *11 (D.N.M. Feb. 15, 2017) (citing United States v. Schmidt , 675 F.3d 1164, 1169 (8th Cir. 2012), which held that the victim's injuries "generated medical bills and gave rise to a cognizable loss under the MVRA," even though an insurer "compensated [the victim] for her loss by covering the necessary medical costs"); United States v. Cliatt , 338 F.3d 1089, 1093–95 (9th Cir. 2003) ("When the victim of a crime enumerated in the MRVA suffers bodily injury, and when the United States government covers her necessary medical expenses... 18 U.S.C. § 3664 requires that the restitution be paid directly to the government."). So understood, Whitley still owes restitution for the minor victims' past mental health treatment, participation in residential programs, and the expenses incurred during the victims' involvement in the investigation and prosecution of this case.

Second, the minor victims will almost certainly incur future expenses beyond those mental health costs initially estimated by the government. To be sure, psychological treatment is critical and perhaps the genesis of other needs. See Charles , 895 F.3d at 566 ; Dillard, 891 F.3d at 158 ; Hoskins , 876 F.3d at 946 ; United States v. Johnson , 680 F. App'x 194, 200–01 (4th Cir. 2017) ; United States v. Sanderson , 515 F. App'x 16 (2d Cir. 2013) ; Danser , 270 F.3d at 455 ; see , e.g. , United States v. Jackson , No. 2:16-CR-00054-DCN, 2018 WL 3127241, at *3 (D.S.C. June 26, 2018) ; United States v. Osman , No....