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United States v. Collier

United States District Court, D. Oregon

November 21, 2019



          Michael H. Simon, District Judge.

         In No. 3:16-cr-348-SI, the Court sentenced Defendant to ninety-six (96) months imprisonment for distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1). In No. 3:18-350-SI, the Court sentenced Defendant to ninety-six (96) months imprisonment for transportation of child pornography in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1), to be served concurrently with the sentence in No. 3:16-cr-348-SI, plus an additional penalty of thirty-one (31) months imprisonment in No. 3:18-cr-350-SI, to be served consecutively to the sentences imposed in No. 3:16-cr-348-SI and No. 3:18-cr-350-SI. In addition, Defendant agreed in his plea agreement “to pay restitution for all losses proximately caused by defendant's conduct, regardless of whether counts of the indictment or information dealing with such losses will be dismissed as part of this plea agreement.” The government now seeks mandatory restitution under 18 U.S.C. § 2259 for “Andy, ” “Jenny, ” “Jane, ” “Erika & Tori, ” “Fiona, ” “Henley, ” “Pia, ” and “Emily, ” the identified victims who have requested restitution. A restitution hearing was held on November 21, 2019.


         Restitution is mandatory in child pornography cases for “the full amount of the victim's losses as determined by the court, ” and shall be imposed “in addition to any other civil or criminal penalty authorized by law” regardless of the defendant's economic circumstances. 18 U.S.C. §§ 2259(a), (b)(1), (b)(4) (2017).[1] Recoverable losses include medical services relating to physical, psychiatric, or psychological care; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; attorney's fees and costs; and “any other losses suffered by the victim as a proximate result of the offense.” 18 U.S.C. § 2259(b)(3). The term “victim” includes both “the individual harmed as a result of a commission of a [child pornography] crime, ” and, if the victim is under 18, “the legal guardian of the victim” or “another family member.” 18 U.S.C. § 2559(c). The Ninth Circuit has described § 2259 as a statute “phrased in generous terms, in order to compensate victims of sexual abuse for the care required to address the long-term effects of their abuse.” United States v. Laney, 189 F.3d 954, 966 (9th Cir. 1999).

         The government bears the burden of proving losses for restitution by a preponderance of the evidence. United States v. Waknine, 543 F.3d 546, 556 (9th Cir. 2008). Mathematical precision is not required, and the assessment necessarily “involves the use of discretion and sound judgment.” Paroline v. United States, 134 S.Ct. 1710, 1727 (2014). Nonetheless, the defendant's criminal conduct must be the proximate cause of the victim's losses. Paroline, 134 S.Ct. at 1722. Moreover, a restitution award must be “adequately supported by evidence in the record, ” and the court must set forth its reasons when resolving disputes regarding the amount of restitution. United States v. Tsosie, 639 F.3d 1213, 1222 (9th Cir. 2011). Courts must “do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, ” but also that defendants are liable “for the consequences and gravity of their own conduct, not the conduct of others.” Paroline, 134 S.Ct. at 1729.

         The Supreme Court recognized that a child pornography victim “suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured.” Id. at 1726. The unlawful conduct of everyone who “produces, distributes, or possesses the images of the victim's abuse”-including defendant-“plays a part in sustaining and aggravating this tragedy.” Id. The Court had “no doubt” that “Congress wanted victims to receive restitution for harms like this, ” because “every viewing of child pornography is a repetition of the victim's abuse.” Id. at 1726-27.

         The Ninth Circuit has held that district courts must disaggregate losses caused by the victim's original abuse from losses caused by the “ongoing distribution and possession of images of that original abuse, to the extent possible.” United States v. Galan, 804 F.3d 1287, 1291 (9th Cir. 2015). The court, however, expressed no opinion about “what portion of a victim's ongoing loss should be attributed to an original abuser.” Id. The court harbored “no illusion that the task will be easy, ” but noted that “precision is neither expected nor required.” Id.


         As of the date of the restitution hearing, the government received restitution requests from 12 victims, but only eight of whom were actually depicted in files that Defendant distributed, transported, or possessed, according to the government's evidence. Each victim submitted a detailed request outlining the harms suffered from the ongoing trade in images or videos of his or her abuse and documenting the losses each either suffered or reasonably expects to suffer as a result. The Court has reviewed these submissions and makes the following findings and rulings.

         A. Andy

         Andy was sexually abused “on countless occasions” over the course of five to six years by an offender who gained access to him through a Big Brothers, Big Sisters program. The offender made “graphic video recordings” of the abuse, which have been widely circulated over the Internet. Andy's counsel contends that Andy's videos are “among the most widely distributed child pornography series in the world.” Andy was evaluated by a university professor in the Department of Pediatrics and by a licensed clinical psychologist. According to that psychologist, Andy “started smoking cigarettes at age 12” and has “experimented with various drugs, including alcohol, marijuana and pain killers.” Andy reported using methamphetamine “for almost a year.” Andy “has become aggressive over time, ” has been in many fights, often triggered by “some statement or comment about homosexuality that rekindles his memories, ” and has had “many encounters with the law and school authorities.” Andy attended about a year of individual psychotherapy in 2011.

         Defendant had a single image of Andy. According to the National Center for Missing and Exploited Children (NCMEC), as of September 30, 2019, a total of 68, 106 files depicting Andy have appeared in 3, 914 separate Child Victim Identification Program (CVIP) Reports. Those numbers represent only cases in which the files were seized by law enforcement officers and forwarded to NCMEC for identification. There is no evidence that defendant played any role in the production of those images or videos.

         Andy is asking for restitution in the amount of $25, 000 for defendant's share of his future psychological counseling costs and future lost income, and $33, 415 in costs and attorney fees incurred in preparing his restitution request. According to a Department of Justice database, 275 defendants have been ordered to pay a total of $1, 984, 479 in restitution to Andy. The highest award was $250, 000, the lowest was $250, and the average award is $7, 243. As of this writing, Andy has received $300, 064.37 in restitution payments. The Court finds it reasonable to order restitution in the amount of $3, 500 to Andy.

         B. Jenny

         Jenny was sexually abused by her mother's boyfriend when she was only seven to nine years old. The boyfriend made images and videos of the abuse, which have been widely circulated on the Internet since at least 2007. The images and videos depict sadomasochistic abuse (including bondage), bestiality, and brutal sexual assaults.

         Jenny received some counseling when she was nine or ten years old. She still has “extraordinary difficulty talking about” the abuse and about “the ongoing trauma that is a result of the images and videos being downloaded and viewed.” Jenny finds it “very distressing” that people are looking at the images of her abuse, and she is “very disturbed that people are downloading these images and videos.” She is “frightened that they will recognize her, ” has “a hard time going out alone, ” and “cannot bear her body being shown, for example when wearing a bathing suit or shorts.” The ongoing trade in her images has “dramatically impacted Jenny's ability to trust people.” A clinical social worker evaluated Jenny and wrote that Jenny “requires immediate treatment and will require intermittent treatment over her life course.” Jenny's images have been widely circulated ...

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