United States District Court, District of Montana, Billings Division
OPINION AND ORDER ON RESTITUTION
SUSAN P. WATTERS U.S. DISTRICT COURT JUDGE
Defendant Jordan Campbell-Zorn ("Campbell-Zorn") pled guilty to one count of possession of child pornography in violation of 18 U.S.C. §2252A(a)(5)(B). He was sentenced on November 10, 2014. This Court reserved its restitution determination at that time. After reviewing the victims' restitution submissions, and what little argument the United States and Campbell-Zorn submitted on restitution in their briefs, this Court is now ready to rule.
For the reasons that follow, the Court hereby orders Campbell-Zorn to pay restitution in the amount of $23, 825 in general restitution and $4, 780.20 in attorney's fees and costs to "Angela" and $2, 932.27 plus $203.84 in general restitution, and $1, 500 in attorney's fees to "Jane Doe."
The following facts are taken from the indictment, plea allocution, medical and psychiatric records submitted in connection with sentencing, and the pre-sentence report prepared by the Probation Office. Between August 2012 and April 2013, law enforcement determined that Campbell-Zorn offered child pornography for distribution through the Gnutella network. Law enforcement subsequently obtained a search warrant for Campbell-Zorn's residence and seized two computers and removable media from his bedroom. Campbell-Zorn admitted that he stored child pornography images in the removable media that law enforcement discovered in his room. A review of the images revealed 848 child pornography images and 344 child pornography videos. Four of the victims depicted in the pornographic materials, "Angela, " "Vicky, " "Jane Doe, " and "L.S.", all of whom have retained counsel, are actively seeking restitution in this case, as they have in many similar prosecutions across the United States.
On July 25, 2014, Campbell-Zorn pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. §2252A(a)(5)(B) and (b)(2), pursuant to a written plea agreement. "Vicky" submitted a restitution request of $27, 500. "Jane Doe" submitted a restitution request of $26, 500. "L.S." submitted a restitution request of $ 150, 000. "Angela" submitted a restitution request of $12, 100.20- $16, 520.20. Campbell-Zorn did not provide any substantial argument or briefing regarding restitution. The Government requested restitution in the amount of $3, 000 for each victim, but has provided no justification for such an award. The Government's request appears to be entirely arbitrary and is denied. See United States v. Wencewicz, et al, 2014 WL 5437057, at * 2 (D. Mont. Oct. 24, 2014) (citing United States v. Miner, 2014 WL 48162301, at *9 (N.D.N.Y. Sept. 25 2014)).
II. Legal Standard
In child pornography cases, restitution is mandatory to any person "harmed as a result of a defendant's crime. See 18 U.S.C. § 2259(a), (c). Restitution includes "the full amount of the victim's losses, " which includes any costs incurred by the victim for:
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical or occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys' fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
18 U.S.C. § 2259(b)(3).
On April 23, 2014, the United States Supreme Court decided Paroline v. United States, ____ U.S. __, 134 S.Ct. 1710 (2014), which held that restitution in child pornography cases is limited to the losses proximately caused by the individual defendant. District courts across the country have recently started applying Paroline but not without difficulty. Although the Supreme Court stressed that each defendant convicted of possessing child pornography should be assessed only for the degree to which his individual crime was the "proximate cause" of the victim's injury, the Court refused to establish a specific formula for the district courts to use to make this determination. Id. Instead, the Supreme Court said that the district courts must "do their best" to determine each defendant's respective liability. Id. at 1715.
Paroline provided the district courts with a rough framework to follow to assist them in making this determination. Id. at 1727-29. The Court explained that "where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant.... a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." Id. at 1727. In other words, the defendant must first be convicted to establish that the defendant possessed images of the victim. Then, with respect to restitution, there must be proof that "a victim has outstanding losses caused by the continuing traffic in the images, " "[like] costs of psychiatric treatment and lost income, that stem from the ongoing traffic in her images as a whole." Id. Then, the district court must determine how much restitution is appropriate in light of those losses. Id. at 1727-28.
Of course, the defendant is responsible only for the losses to the victim that he proximately caused. Id. at 1731 (noting that restitution is proper under § 2259 "only to the extent the defendant's offense proximately caused a victim's losses."). Paroline set out the following factors for the district courts to consider in determining the defendant's "relative causal role":
the number of past criminal defendants found to have contributed to the victim's general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant's relative causal role.
Id. at 1728. The Supreme Court cautioned, however, that these factors should only serve the district court as "rough guideposts for determining an amount that fits the offense." Id.
These tools provided by Paroline, while seemingly useful in a theoretical sense, have proven to have very difficult, and very limited, practical application. See United States v. Dileo, No. 12-260, 2014 WL 5841083, *5 (characterizing application of the Paroline factors as "akin to piloting a small craft to safe harbor in aNor'easter"); United States v.Miner, l:14-CR-33 MAD, 2014 WL 4816230, at *9 (N.D.N.Y. Sept.25, 2014) (noting difficulty in applying the Paroline framework and finding other district courts' concerns with the Paroline factors "well founded"); United States v.Crisostomi, No. 12-166, 2014 WL 3510215, *2 (D.R.I. July 16, 2014) (explaining that "while some of the Paroline factors are determinable with some precision, a number of other factors are virtually unknown and unknowable, regardless of the detail available in the record"). Rather than ...