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Home / Courts / 4th Circuit / Criminal Practice – Child Pornography – Sentencing – Restitution – Insufficient Findings

Criminal Practice – Child Pornography – Sentencing – Restitution – Insufficient Findings

U.S. v. Burgess (Lawyers Weekly No. 12-01-0751, 28 pp.) (Keenan, J.) No. 09-4584, July 11, 2012; USDC at Asheville, N.C. (Thornburg, J.) 4th Cir. Full-text opinion.

Holding: The 4th Circuit affirms defendant’s conviction of receipt and possession of child pornography, but vacates a restitution order requiring defendant to pay $305,220 to “Vicki,” an identified victim; the district court did not make specific findings regarding the elements of restitution, as required under the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. 2259, and the case is remanded for calculation of the loss this specific defendant caused the victim portrayed in the pornographic material possessed by defendant.

Defendant was convicted by a jury of violating 18 U.S.C. §§ 2252(a)(4)(B) and 2252(a)(2). The district court sentenced him to prison terms of 240 months and 292 months, to be served concurrently, and ordered the restitution payment.

Defendant challenges the district court’s response to a question from the jury during deliberations. The trial judge brought the jury into the courtroom to ask whether their inquiry – did defendant have to actually know the image he received had crossed state line and whether he had to have participated in the “action” to be breaking the law? – referred to interstate transportation. The jury responded affirmatively. The district court employed reasonable measures to understand the questions posed by the jury and responded in a direct and limited fashion.

The appellate court also upholds sentencing enhancements applied to defendant’s case, finding sufficient evidence that his offenses involved material that portrayed sadistic and masochistic conduct. The district court was justified in imposing a five-level enhancement under USSG § 2G2.2(b)(5) for a pattern of activity involving the sexual abuse or exploitation of a minor. In addition to his multiple convictions for committing or attempting to commit lewd acts upon a child less than 14 years of age, defendant admitted to molesting between 40 and 50 minor male children.

Turning to the restitution order, we observe we are not the first federal appeals court to consider this restitution statute. Several of our sister circuits already have had occasion to address the application of the restitution statute with respect to victims depicted in child pornography. With the benefit of prior analyses, we examine the issue posed by the employment of a tort law principle in the construction of a criminal statute.

We conclude nothing in the text or structure of the restitution statute affirmatively indicates that Congress intended to negate the ordinary requirement of proximate causation for an award of compensatory damages. Rather, the statute’s language, which defines a victim as one harmed as a result of a commission of a defendant’s acts, invoked the well-recognized principle that a defendant is liable only for harm that he proximately caused. Requiring only general causation rather than proximate causation permits a measure of loss wholly disproportionate to the harm inflicted by an individual defendant.

We reject Vicky’s proposed interpretation of the restitution statute and join the plurality of circuits in adopting the reasoning in U.S. v. Monzel, 641 F.3d 528 (D.C. Cir. 2011). We hold that defendant is only responsible for losses sustained by Vicky that he proximately caused. We remand for an individualized determination of proximate causation and, if such causation is found, for a restitution award consistent with the principles expressed in this opinion.

Affirmed in part, vacated in part and remanded.

Concurrence & Dissent

Gregory, J.: I concur in the majority’s disposition of the case and in parts I through V. I cannot, however, join part VI. The majority’s opinion prematurely and erroneously holds the district court must allocate some specific amount of the proximately caused losses to defendant. I respectfully dissent.


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