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United States of America v. Breisacher

July 6, 2012


The opinion of the court was delivered by: Thompson, U.S.D.J.


This case presents a question brought with increasing frequency before courts in this Circuit and around the country: namely, whether a sentencing court may award restitution under 18 U.S.C. § 2259 to victims depicted in child pornography, from a criminal defendant who received, possessed, and may have distributed the images, but who was not directly involved with the creation of such images or with the victim's original abuse. As explained below, the Court believes that a restitution award may be appropriate under these circumstances, and consequently has ordered such relief.

I. Background

On May 19, 2011, Defendant Eric Breisacher pled guilty to a one count Information charging him with the knowing and willful possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (2). At the hearing and under the Defendant's written plea agreement of November 5, 2010, the Defendant allocuted to using various file sharing programs to amass a collection of child pornography consisting of 1,064 images and 786 videos. See (PSR ¶ 20). The images and videos included depictions of minors being raped, restrained and subjected to other sadistic or masochistic conduct. See (id. ¶ 19). Following the plea, the Government forwarded the Defendant's collection of child pornography to the National Center for Missing and Exploited Children ("NCMEC") with a request that the images be reviewed for identified children. See (id. ¶ 22). After reviewing the collection, NCMEC identified victims depicted in 277 image files and 166 video files. See (U.S.A. Br. in Support of Restitution, Ex. A) [23]. Four of the victims identified by the NCMEC submitted restitution claims: Vicky (the victim in the "Vicky" series), Misty/Amy (the victim in the "Misty" series), L.S (the victim in the "Jan_Feb" series), and Cindy (the victim in the "Cindy" series). (Id.). Following a status conference on May 25, 2012 in which the parties indicated that the issue of restitution would be contested in this matter, the Court ordered that supplemental briefing concerning the issue of restitution be filed by June 15, 2012. [21]. Sentencing was set for June 22, 2012. [22]. At sentencing the Court imposed a term of 78 months of imprisonment and five years of supervised release with conditions. [25]. After considering the submission of the parties and the arguments made on the record during the sentencing hearing, the Court additionally ordered that the Defendant pay restitution in the amount of $10,000 to each of the identified victims. (Id.)

II. Discussion

The mandatory restitution provision of the Protection of Children Against Sexual

Exploitation Act directs the district court to order a defendant to pay restitution to the "victim" of a crime of child sexual exploitation. See 18 U.S.C. § 2259(a)-(b). "Victim" is defined as "the individual harmed as a result of a commission of a crime under this chapter." Id. § 2259(c). Taken together, these provisions tie restitution awards to harms resulting from a defendant's conduct. Consequently, the United States Court of Appeals for the Third Circuit has required a finding of proximate causation to determine whether a victim is entitled to restitution under § 2259. See United States v. Crandon, 173 F.3d 122, 125 (3d Cir.1999). Under this standard, the

Third Circuit has described proximate cause as requiring that a defendant's actions be a "substantial factor in causing the ultimate loss." See id.

The Defendant has argued that restitution is not warranted in this case as "there is no specific proof of the actual harm caused by Breisacher." (Def.'s Opp'n at 4). The Defendant notes that the psychological records introduced by the Government in support of its application for restitution "reference the type of harm suffered by a victim of sexual abuse, magnified by the memorialization of such abuse for the purpose of child pornography," but contends that none of the proof specifically reference the harm caused by the Defendant's possession of these images. See (id. at 4--5). By contrast, the Government contends that the restitution requests and supporting documentation provided by the identified victims in this case establish that the Defendant's conduct-- i.e., obtaining sexually explicit images of the victims and sharing those images with others over the Internet through a peer-to-peer file sharing network-- has in fact proximately caused harm to each of these victims. (U.S.A. Br. in Support of Restitution, at 9).

After considering all of the arguments, the authority before it, and the broad purpose underlying the restitution provision, the Court finds that the Government has met its burden in establishing that at least some of the identified victims' losses can be said to be proximately caused by the Defendant's crime and, consequently, that a restitution award is appropriate under these circumstances.

A. Rationale for Restitution

The Court begins by acknowledging that "[i]t is beyond dispute that child pornography victims suffer from trauma as a result of their sexual abuse, and that the knowledge that anonymous individuals continue to view and distribute images of their abuse exacerbates the victims' feelings of fear, anxiety, and powerlessness." United States v. Monzel, 746 F.Supp.2d 76 (D.D.C. 2010). As the Supreme Court has noted, "[t]he materials produced [in child pornography] are a permanent record of the children's participation and the harm to the child is exacerbated by their circulation." New York v. Ferber, 458 U.S. 747, 759, (1982); see also Osborne v. Ohio, 495 U.S. 103, 111 (1990) ("The pornography's continued existence causes the child victims continuing harm by haunting the children for years to come."). Far from being mere bystanders, courts have recognized that consumers of child pornography such as the Defendant who download and share such images, whether through paid services or via peer-to-peer networks supported by advertizing, directly participate in the victimization of children by creating a market for the abuse by providing an economic motive for creating and distributing the materials. See Osborne, 495 U.S. at 109--12; Ferber, 458 U.S. at 755--56. The Third Circuit has specifically addressed the harm caused by possessors of child pornography concluding that such defendants' consumption of these images "directly contribute to this continuing victimization." United States v. Goff, 501 F.3d 250, 259 (3d Cir. 2007).

Recognizing this effect, Congress has roundly condemned and sought to punish the possession of child pornography. See Child Pornography Prevention Act of 1996, 18 U.S.C. § 2251 ("[T]he existence of a traffic in child pornographic images ... increas[es] the creation and distribution of child pornography ...," and "prohibiting the possession and viewing of child pornography will ... eliminate the market...."); see also Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, § 401(b), (attempting to amend 18 U.S.C. § 3553(b)(2) to restrict the authority of the district courts to depart from the Sentencing Guidelines in sexual offense and child pornography cases). As the Third Circuit has explained, Congress' criminalization of the possession of child pornography "discourages its production by depriving would-be producers of a market." United States v. Ketcham, 80 F.3d 789, 793 (3d Cir.1996). Moreover, recognizing the losses sustained by victims of child pornography including the need for medical services relating to physical, psychiatric, or psychological care, physical and occupational therapy or rehabilitation, as well as representation costs, Congress has mandated that restitution be provided to such victims. See 18 U.S.C. § 2259.

Misty/Amy, Vicky, Cindy and L.S. have submitted, through the Government, detailed victim impact statements and expert estimates of total loss as a result of the crimes of sexual exploitation to which they have been subjected. From reviewing these statements and the accompanying treatment reports of the identified victims, it is clear to the Court that many of the alleged losses arise out of the need for ongoing psychological treatment as a result of the knowledge that the Defendant and others have ...

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