Friday, November 30, 2012

Seventh Circuit develops rules for CP restitution cases, requires classification of offenders for calculation

In United States v. Laraneta, No. 12-1302 (7th Cir. 2012), the Seventh Circuit held that child pornography defendants who simply possessed images are only liable for restitution based on the limited amount of damage they caused. Distributors, however, are liable for the entire damages. Further, defendants may not seek contribution from others.

The defendant had pled guilty to seven counts related to child pornography. The defendant was sentenced to thirty years in prison and ordered to pay over $4 million in restitution to two victims.

The Seventh first examined whether child pornography victims can intervene in the criminal proceeding itself. Finding that it "would be a recipe for chaos," the court held that victim intervention is best left for an appeal.

In his appeal, the defendant argued that the district court's award of restitution to "Amy" and "Vicky" was erroneous. Amy and Vicky are two victims of child pornography, and the two have received restitution of varying amounts from cases around the country. Vicky's losses total nearly $1.25 million (and she's recovered just over $250,000), and Amy's losses are calculated at over $3 million (and she's recovered about half). The court ordered the defendant to pay the entire balance of those losses, and he argued that it's not his responsibility.

Courts have struggled with the federal statute that allows restitution for child pornography victims - 18 U.S.C. § 2259(c). Of all the circuits that have dealt with the issue, all but one (the Fifth) have determined that the defendant must have proximately caused the victim's losses in order to be required to pay restitution. Courts have further struggled with what exactly that means.

The Seventh Circuit, deciding to remand for a redetermination of restitution by the trial court, suggested that "it is beyond implausible that [Amy and Vicky] would have suffered the harm they did had [the defendant] been the only person in the world to view pornographic images of them." As such, on remand, the court must consider which portion can be allocated to the defendant. However, if the court labels the defendant a distributor, he should be liable for the entire amount of the damages.

Amy and Vicky suggested that imposing joint liability is fair because the defendant can seek contribution from other viewers. Posner opined such an approach to be "extraordinarily clumsy," considering the assets of most prisoners and "the bother of awarding contribution rights to hundreds of prison inmates. We have enough inmate suits as it is."

Thus, the Seventh's rules for restitution are:

  1. Subtract restitution payments already received in other cases.
  2. Determine the defendant's status. If he is simply a viewer, determine what of the damages are a result of his acts. If he is a distributor, the defendant is liable for the entire remaining loss.
  3. The defendant is not entitled to contribution from other offenders.
  4. Victims may not intervene in district court.
The defendant also appealed his 30-year sentence (including a 10-year consecutive possession charge), arguing that the length was inappropriate and it should not have been consecutive. These arguments were struck down, of course.


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