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September 9, 2013

Second Circuit panel provides fuller account of child porn restitution accounting

The Second Circuit today released a lengthy panel opinion in US v. Lundquist, No. 11-5379 (2d Cir. Sept. 9, 2013) (available here), providing a detailed discussion of the rules and standards for child porn restitution sentencing decisions. Here is how the opinion begins:

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.

September 9, 2013 at 04:41 PM | Permalink

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Comments

i think the local court and the appeals court both have friggin rocks in thier heads if they think someone 20 years down the road is resonsible for ANY harm to her or anyone else.

of course we all know why they are pulling this shit. Once they can get the USSC to sign off on it. the blacks will be coming after thier cut from the hard done to their ancestors when they were slaves 150 years ago.

Posted by: rodsmith | Sep 9, 2013 6:51:43 PM

Let Amy's uncle pay her restitution. Anyone else who knowingly wandered into an adult porn site and then unknowingly ended up with child porn on their computer, they are also victims. Where's their restitution? Can they now sue the internet servers or the websites that allowed the porn in the first place? These folks are now in prison, usually just because they were "internet dumb". Since these websites are never shut down, this will go on forever and some people will become very wealthy, and the prisoners and their families will become very poor. Who's going to pay for their therapy?

Posted by: kat | Sep 10, 2013 9:36:08 AM

Amy should forced to testify about her specific damages, and to bring the bills they generated.

Posted by: Supremacy Claus | Sep 11, 2013 6:50:44 AM

Amy only sends the same victim impact statement to each person who has been arrested for having those images on their computer. The government is who re-victimizes this person and allows the pain and suffering by notifying her when they have arrested someone with her images. She would be able to move on if she wasn't constantly reminded by our government that those images are forever on the internet through those notifications. And Kat, I agree, the ISPs and websites should be held liable for distribution of these images, and a warning like what is on every DVD that is produced that warns of the consequences if you hit download, should be on those sites.

Posted by: Jill | Sep 11, 2013 6:45:59 PM

Jill-
Amy has the right to opt out of the notification system anytime she wants to. I think she should opt out of taking restitution checks as well. If the thought of these videos out in the world is traumatic, why would you want to continuously accept money from people who saw the videos. Keep in mind that the people who saw the videos have no idea who Amy is, and they wouldn't recognize her today if they fell over her. I think Amy and her lawyer are becoming very wealthy.

Posted by: kat | Sep 12, 2013 10:47:00 AM

Kat-
In total agreement. What kind of cut is her attorney getting? Hmmm.... Probably more than she is.

Posted by: Jill | Sep 12, 2013 6:44:09 PM

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