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January 28, 2011

Eleventh Circuit publishes (first?) circuit opinion affirming restitution in sentencing of child porn downloader

An Eleventh Circuit panel has an important ruling today in US v. McDaniel, No. 09-1503 (11th Cir. Jan. 28, 2011) (available here), concerning the federal law and practice of imposing restitution terms in sentences for downloaders of child porn.  Here is how the McDaniel opinion begins along with some of the key legal determinations within the opinion:

Ricky Lee McDaniel was convicted of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A).  The district court sentenced him to 60 months of imprisonment and three years of supervised release and ordered him to pay restitution to “Vicky,” a child depicted in one of his images.  McDaniel asks whether 18 U.S.C. § 2259 requires a showing of proximate cause, and if so, whether the district court clearly erred in ordering restitution.  For the following reasons, we affirm....

First, we agree with the district court that McDaniel “harmed” Vicky under the meaning of section 2259(c) by possessing images of her sexual abuse as a minor....  Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within.  The end users of child pornography enable and support the continued production of child pornography.  They provide the economic incentive for the creation and distribution of the pornography, and the end users violate the child’s privacy by possessing their image.  All of these harms stem directly from an individual’s possession of child abuse images.  Thus the district court did not err in finding that Vicky was a victim of McDaniel’s possession of child pornography, and consequently, that she is eligible for restitution under section 2259....

Next, we hold that section 2259 limits recoverable losses to those proximately caused by the defendant’s conduct....  [T]he plain language of section 2259 ... covers, inter alia, “losses suffered by the victim as a proximate result of the offense.” § 2259(b)(3)(F)....

McDaniel next argues that his conduct did not proximately cause Vicky’s harm.  Instead, he contends that her father and the distribution of the images caused her harm, and by the time he possessed the images, the harm had already been done.  He asserts that restitution is appropriate only in cases where the defendant actually sexually abused a child or produced the child pornography because, in those cases, the defendant’s conduct actually harmed the child.

We disagree.  Dr. Green explained that each NCMEC notification adds to the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues.  He testified that each notification is “extraordinarily distressing and emotionally painful” to Vicky and that Vicky suffers “each time an individual views an image depicting her abuse.”  We are not “‘left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)....  Consequently, the district court did not clearly err in finding that McDaniel’s possession proximately caused Vicky’s losses.

As a policy matter, I favor child porn downloaders having to pay some restitution to the children harmed and depicted in the pictures they download.  And, in this case, "the court ordered McDaniel to pay Vicky $12,700" to help cover the costs of therapy for Vicky, which does no seem like an unreasonable award under the circumstances.  But, for two reasons articulated below, I am struggling somewhat with how the McDaniel opinion gets to its ultimate conclusions on proximate cause in order to affirm the restitution award imposed by the district court.

1.  As the explained in the opinion, Vicky was notified that McDaniel had downloaded her picture onlybecause the "National Center for Missing and Exploited Children (NCMEC) compares images and identifies the children depicted within [and] notifies an identified victim every time someone is arrested who is found to possess his or her image [and] the Government submitted McDaniel’s collection of images and videos to the NCMEC for identification of known victims after McDaniel’s re-indictment in June 2008."  In other words, Vicky would never have known McDaniel had possessed her picture but forthe feds submitting the picture to the NCMEC andthe NCMEC altering Vicky that yet another person had her picture.  In lots of jurisdictions, the independent acts of the feds and the NCMEC might well be viewed as "breaking the chain" of causation between McDaniel's offense of possession and the "slow acid drip" harms she experiences.

2.  Relatedly, given that "Vicky sought approximately $185,000 for past psychological services and future counseling and therapy, and $3,500 in attorneys’ fees," and given that a witness testified that "Vicky would need approximately $166,000 to $188,000 of future counseling or therapy because of the damages she incurred from the original abuse and her awareness of the images on the Internet," it is unclear how the district court decided the restitution award here should be $12,700.  Why not an award of the full amount of the cost of her future therapy?  Alternatively, why not find out from the NCMEC how many times they have notified Vicky about her picture (which I suspect is hundreds, if not thousands, of times), and apportion the award accordingly? 

Intrguingly, in a footnote to support its holding that proximate cause is required, the McDaniel opinion cites a key Fifth Circuit ruling to stress that "if there was 'no proximate cause requirement in the statute, a restitution order could hold an individual liable for a greater amount of losses than those caused by his particular offense of conviction.' In re Amy, 591 F.3d 792, 794 (5th Cir. 2009)."  In turn, shouldn't the Eleventh Circuit be worried that requiring McDaniel to pay $12,700 for possessing a picture that hundreds (and perhaps thousands) of persons have possessed does not in fact make liable for a greater amount of losses than those caused by his particular offense of conviction?  (McDaniel may not have appealed the amount of restitution awarded, but lots of district court have struggled and split over these issues that quickly get implicated once proximate cause is held to be a required showing.)

January 28, 2011 at 11:39 AM | Permalink

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Comments

LOL what a load of shit!

Guess this means the U.S. Govt owe's the girl a mint since they use her photo in their little online traps! based on these statments....they are just as guilty!

" Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within. The end users of child pornography enable and support the continued production of child pornography."

What's the diff he was an END USER using it to get off! While the U.S Govt is an END USER using it to GET PEOPLE LIKE HIM!....

next

"We disagree. Dr. Green explained that each NCMEC notification adds to the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues. He testified that each notification is “extraordinarily distressing and emotionally painful” to Vicky and that Vicky suffers “each time an individual views an image depicting her abuse.” We are not “‘left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).... Consequently, the district court did not clearly err in finding that McDaniel’s possession proximately caused Vicky’s losses."

Since the feds are one of the biggest users of her photo's resulitng in MULTIPLE notificials they are also required to pay restitution.

little nazi's can't have it both ways....

Posted by: rodsmith | Jan 28, 2011 12:25:26 PM

The Court seems to have an odd understanding of what "proximate" means. That aside, your suggestion that these cases - assuming restitution is appropriate at all - call for a properly calculated apportionment of the full amount of restitution (as authorized under 18 USC 3664(h)) is a very astute one, Doug.

Posted by: Peter G | Jan 28, 2011 1:12:55 PM

Is Kim Phuc (the "napalm girl" in the iconic photgraph) owed restitution by anyone who owns (let alone uses - ex: blisted.breakthrough.tv/b-activists-where-is-the-napalm-girl-that-was-burned-in-south-vietnam-37-years-ago-5052) a copy of her picture? I know the argument is made that we didn't wage the Viet Nam war to generate such photos, but they were an inevitable by product of that war, many people profited from the war and the act that produced the picture MUST have hurt her and caused immense emotional pain.

I'd argue that the NCMEC should be just as much on the hook as McDaniel - They keep the pain fresh every time they alert her that someone else has been caught with her pictures. Sure, she probably has an on-going fear that people are enjoying the evidence of her molestation, but the NCMEC is exacerbating her pain by rubbing her nose in it over and over. Just because their motives may be noble and pure doesn't lessen the trauma.

Posted by: Joe Power | Jan 28, 2011 3:41:11 PM

What a distorted meaning of "proximate" we have if this case qualifies. And, yeah, the NCMEC should also be held liable for proximately causing her harm.

Posted by: anon | Jan 28, 2011 4:18:20 PM

A good friend of mine was counsel of record for McDaniel. He did a really good job at trial at on this appeal. Does anyone here see a cert. worthy issue flowing from this opinion?

Posted by: Scott Forster | Jan 28, 2011 5:57:17 PM

For a detailed discussion of the back story, see CHILD PORN RESTITUTION RUN AMUK

One surprise is that the damage was penned by "Dr. Joyanna Silberg who was hired by attorney Marsh to assess the psychological 'harm' caused to Amy by the repeated viewing of her sexual abuse images by possessors of child pornography."

Posted by: George | Jan 28, 2011 8:52:11 PM

Was a Daubert hearing ever requested? If the answer is no, the defense lawyer should pay all costs.

Posted by: Supremacy Claus | Jan 28, 2011 10:00:02 PM

That attorney Marsh is a real scum-bag. Let me guess... he's filing the exact same thing all over the country and then letting the govt. do the work and then claiming what, 25%, of any "restitution" she gets based on his minimal work? That's probably a fairly accurate description of what's going on here. Nothing more than a financial opportunity for Marsh. Scum.Bag.

Posted by: ugh | Jan 28, 2011 10:27:07 PM

I disagree. It is these judges that are the lowest vermin, generating yet another false, anti-scientific, meritless revenue stream for the lawyer profession.

I would like to see a male advocacy group organize personal boycotts of these cult criminals by all product and service providers. The entire lawyer hierarchy, about 15,000 people, should be boycotted.

Posted by: Supremacy Claus | Jan 29, 2011 12:10:39 AM

There is no chain of causation in nature. There is a clustering of factors to make a catastrophe. Yes, the payment for viewing encourages production of future material. However, the price is artificially high due to illegality. Yes, the producer and abuser is pure evil. However, his abuse would be impossible in an average family, where the other family members could not remain silent or collude, especially, the mother. Assume she is traumatized by additional viewings. This knowledge is provided by the government and by the Center. They are the proximate providers of the reports of viewing.

One notes that there are no priorities in this clustering. Remove one factor, none of the catastrophe takes place. For example, the mother stands up for her daughter. The victim tells school authorities. There is no Center formed. No abuse would take place. So there is no way to place a weight on any single factor for the purpose of compensation.

Torts and restitution defendants should file cross claims against other identifiable sources of factors.

Posted by: Supremacy Claus | Jan 29, 2011 7:46:05 AM

Well as I see this is solicting cp you say enduser support this not everyone that has such material have not paid for it. It is out there we assume anyone that looks at cp is doing it out of pleasure .Unless we are present when one looks at such materail we can not jump to conclusions.So we want to to say its ok for the victim to get money for anyone that looks thats for a personal gain and thats illegal? I agree that the ones that produce should be fined and imprisoned .

Posted by: frank | Jan 30, 2011 3:43:57 PM

The government (with the apparent blessings of appellate courts) has been working overtime, it seems, to concoct elaborate, if flimsy, justifications for outlawing the unsavory fantasies of certain flawed, vulnerable Americans. Yes, we appear to be making, thought crimes, once-removed, a federal crime punishable by decades in prison.

Posted by: John K | Jan 30, 2011 7:04:06 PM

John K --

"The government (with the apparent blessings of appellate courts) has been working overtime, it seems, to concoct elaborate, if flimsy, justifications..."

The kiddie porn laws were not enacted by some distant "government." They were enacted by Congress. Your favorite party just finished two years of total control of Congress, plus the Presidency. So I guess we know where the responsibility for maintaining these laws rests, right?

"...for outlawing the unsavory fantasies of certain flawed, vulnerable Americans."

C'mon, you're smarter than that. Certain sickos have been having these "fantasies" before the Internet (or photography for that matter) was even invented, and no "fantasies" were or are outlawed. What is outlawed is the act of viewing pictues of, for example, eight year-old's being forced to have sex with animals (among other even worse stuff that I won't go into). The adults getting their kicks by looking at this kind of thing are hardly the vulnerable ones; the children forced into it are.

Except to you. Yikes.

Posted by: Bill Otis | Jan 30, 2011 10:56:36 PM

Bill O,

So you are saying that because the dems didn't overturn or significantly amend CP laws in favor of defendants makes them as responsible for these draconian laws as the the republican fear mongers who sponsor amendments every year to make them harsher and harsher? Surely they had enough problems on the election horizon without being proactive in "softening" child exploitation crimes. . . It takes courage, which perhaps the dems did lack, to show some sympathy for those who are clearly disturbed enough to look at this junk. But that doesn't absolve us, as morally responsible humans, to try and understand the problems that face our society and seek solutions beyond longer and longer jail terms. Perhaps we need to bring rehabilitation back into our criminal law philosophy. Retribution and deterrence is all that applies now. And that what really gets republicans excited. And all politicians recognize that to some degree. Understanding such taboo problems simply doesn't pay at the polls.

-Also a former prosecutor.

Posted by: AFP | Jan 30, 2011 11:31:57 PM

It seems that the cert worthy issue would be what constitutes proximate cause. In other opinions, the courts seem to focus on the re-victimization caused by mere viewing, but in this one, the court specifically states that it flows from the NCMEC notice. If the alert is what actually causes the harm - the actual knowledge that someone viewed the picture and not the vague knowledge that someone somewhere might be viewing the image - then there's a real issue for the SC to sink it's brain power into.

Posted by: AFP | Jan 30, 2011 11:44:01 PM

People who force children into pornography or profit from it in other ways deserve long prison sentences. People who create a market for kiddie porn by buying it deserve punishment, too, though not as severe as that imposed on the creators and purveyors.

Sad creatures who merely happen upon these pictures and, for whatever reason, keep them or fail to do a thorough job of removing them from their computers deserve sanctions...maybe probation...maybe fines...most certainly court-ordered counseling and treatment.

In other words, Bill, I don't advocate horrible things happening to children subjected to the subculture of child pornography. But neither do I advocate imprisoning and hounding for life American citizens who merely looked at pictures...even icky, awful ones like we're talking about here.

Posted by: John K | Jan 31, 2011 5:17:52 PM

I have to agree that the government owes the victims restitution just as much as the possessors. They know this material is out on Limewire and didn't pull the plug on the site. If they really wanted to help the victims they would have done so several years ago. Instead they leave it out there and nail the person who downloads a bunch of files at a time.

Posted by: lgreene | Jan 31, 2011 10:11:33 PM

lol igreene might want to look again some of the studies and figures i've seen say that law enforcment is responsive for upward of 1/2 of the cp on the web..... they not only find it...they PLANT it

Posted by: rodsmith | Feb 1, 2011 1:36:38 AM

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