Sunday, February 12, 2012

6th Cir. vacates computer forfeiture, restitution award

The Sixth Circuit vacated on the issues of forfeiture and restitution in a child pornography possession and production case. United States v. Evers, 669 F.3d 645 (6th Cir.).

After the defendant's son reported him to police for alleged sexual abuse of the defendant's niece, police executed a search warrant to find photographs the defendant had taken of the girl. Officers seized two computers, a digital camera, and other items. In relevant part to the appeal, the trial court ordered forfeiture of the seized items as well as restitution to the son (who was acting as the niece's guardian).

The trial court awarded $1,640 in restitution including $1,500 for lost wages and $140 for child care expenses under 18 U.S.C. § 2259. The defendant argued on appeal that (1) only the victim's lost income is recoverable, (2) the lost wages were not proximately caused by the offenses, and (3) the child care award is not justified. The Sixth Circuit held that the son was a victim under the statute and can recover lost income as it was proximately caused by the defendant. The award for child care was vacated, however. The defendant had been providing free child care for the victim which would not have been free otherwise, and thus, the child care expenses were not proximately caused by the crimes.

On appeal, the Sixth Circuit also vacated the forfeiture of one of the computers because both had not been used for child pornography. Property subject to forfeiture "must bear a 'sufficient nexus' or 'substantial connection' to the underlying offense."


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