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United States v. Galan, 804 F.3d 1287 (9th Cir. 2015): Restitution award against distributor/possessor of child porn must “disaggregate” losses caused by original abuse of victim

In a memorable Saturday Night Live sketch following the power failure that inserted a long intermission in the middle of Super Bowl XLVII, cast members parodied the frazzled NFL commentators desperately trying to fill the empty airtime. Each time the in-studio commentators ran out of things to say, they would bark “Back to you!”, sending the feed to the on-field commentator. The on-field commentator would scramble for insights for a few seconds, then free himself with a “Back to you!”, punting the feed back to the studio. When the latter sent the feed back too quickly, the former angrily objected: “You can’t ‘Back to you’ me – I just ‘Back to you’d you!” It was a humorous, but accurate, portrayal of the frustration and awkwardness that ensues when no one knows just what to do, but everyone knows they have to do something.

Wondering what this has to do with restitution in child porn cases? Everything. Liability for child porn offenses extends well beyond the person who directly abuses the child. It also draws in those who possess and distribute images created by the original abuser, perhaps long after the abuse is over. The notion that theirs is a victimless crime has been rejected, on the rationale that each possession and distribution re-victimizes the victim. All well and good as far as it goes – but how are courts to assign this somewhat abstract concept a dollar value in individual cases? After all, thousands of offenders may possess and view images of any particular victim over the course of years or decades, and generally they come before the court one at a time.

The question cannot be avoided, because Congress provided that restitution for “the full amount of the victim’s losses,” including losses “suffered by the victim as a proximate result of the offense,” is mandatory. 18 U.S.C. § 2259. After much consternation in the circuit courts, the Supreme Court took on the question last year, and . . . punted? The majority in Paroline v. United States, 134 S. Ct. 1710 (2014), confirmed that courts must award restitution “in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.” For a defendant who is one of possibly thousands who only possessed or distributed images, the award should fall somewhere between “token” and “severe.”

Clear enough? The Chief Judge didn’t think so. He dissented, taking the view that the restitution provision is too vague to be applied at all, and chiding the majority for essentially punting an impossible task to the district courts.

Which brings us to the district court in Mr. Galan’s case. Galan – who, like Paroline, had no direct role in the victim’s abuse but possessed images that derived from it – argued that the district court was required to “exclud[e] the ongoing losses to [the victim] due to the actions of the original abuser” from the restitution awarded against him. The district judge (in a sort of preemptive “Back to you!” to the appellate courts) refused to “disaggregate” the losses caused by the original abuser “until the Ninth Circuit or the Supreme Court mandate[d]” it. The Ninth Circuit obliged, concluding that dicta in Paroline indicated that the Supreme Court supported such “disaggregation.” (The court also echoed Chief Justice Roberts’ concern about the statute’s vagueness, lamenting that it “at least approache[d] the limits of fair adjudication” and “cries out for a congressional solution.”)

So district courts in the Ninth Circuit must “disaggregate” the losses caused by the original abuser from the restitution awarded against later possessors and distributors. How? The court “express[ed] no opinion,” but identified some pertinent factors (egregiousness of abuse, how the victim copes when distribution does not occur, victim’s reactions to various traumas experienced), and declared the task “[no] more impossible than the other tasks imposed upon courts attempting to apportion restitution amounts in this area.”

Back to you, district court.

(Congratulations to Assistant Federal Public Defender Bryan E. Lessley for the win.)

Additional Ninth Circuit defense wins from Nov. 1, 2015:

United States v. Lloyd, No. 12-50499 (9th Cir. Dec. 4, 2015)
The case involved five defendants prosecuted for their roles in telemarketing “boiler rooms” operated in California and Florida. The court held that the district court erred in assigning fraud losses from the California boiler room to a defendant involved in the Florida boiler room. The court reversed another defendant’s conviction because of errors in the admission of lay opinion testimony, FRE 404(b) evidence, and hearsay. The court reversed another defendant’s sentence because the district court failed to account for Sentencing Guidelines § 4A1.2(k), cmt. n.11, in calculating his criminal history score.
(Congratulations to John C. Lemon of San Diego, California; Deputy Federal Public Defenders Sean K. Kennedy and Kathryn A. Young of Los Angeles, California; and Russell S. Babcock of San Diego, California for the wins.)

United States v. Dixon, No. 14-10318 (9th Cir. Nov. 20, 2015)
Holding that Cal. Penal Code § 211 robbery is not categorically a “violent felony” under the Armed Career Criminal Act, the court vacated the defendant’s sentence and remanded for resentencing.
(Congratulations to Angela H. Dows of Las Vegas, Nevada for the win.)

United States v. Garcia-Jimenez, No. 14-10484 (9th Cir. Nov. 19, 2015)
Holding that New Jersey aggravated assault (N.J. Stat. Ann. § 2C:12-1(b)(1)) is not categorically a “crime of violence” under Sentencing Guidelines § 2L1.2, both because it extends to assault committed with extreme indifference and because it covers a broader scope of attempts, the court vacated the sentence and remanded for resentencing.
(Congratulations to Davina T. Chen of Glendale, California for the win.)

Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona. He can be reached at dan_kaplan@fd.org.

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