Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding D.C. No. 2:08-cr-00354- RAJ-01
The opinion of the court was delivered by: Ikuta, Circuit Judge:
Argued and Submitted February 9, 2011-Seattle, Washington
Before: Betty B. Fletcher, Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.
Joshua Osmun Kennedy was convicted by a jury of possessing and transporting child pornography. He appeals his conviction, his sentence, and the district court's order directing him to pay $65,000 in restitution to two victims. We affirm Kennedy's conviction and sentence. Because the government failed to carry its burden of proving that Kennedy's offense conduct proximately caused the losses incurred by the victims, we vacate the restitution order.
On November 9, 2007, Kennedy arrived at Sea-Tac Airport from an overseas trip. After a secondary inspection of his bag- gage by U.S. Customs and Border Patrol revealed images of an "underage-looking" nude female "in different sexual positions" on his laptop computer, Kennedy's computer was seized. Forensic specialists later found 30 images of child pornography among the laptop's active files and approximately 5,000*fn1 images in the deleted cache files.*fn2 On November 5, 2008, a grand jury indicted Kennedy on one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) (2006),*fn3 and one count of transportation of child pornography, in violation of 18 U.S.C. § 2252(a)(1) (2006).*fn4
Prior to trial, Kennedy moved pursuant to Federal Rule of Evidence 403 to exclude the anticipated testimony of five government witnesses. Each witness was a law enforcement officer who had been involved in a sexual abuse investigation relating to one of the individuals depicted in the images found on Kennedy's computer. The government intended to use their testimony to prove that at least some of the individuals depicted were minors and real people, and that the images Kennedy possessed had moved in interstate commerce.*fn5 Kennedy argued that the testimony of the officers would be "cumulative," of "marginal relevance," and highly inflammatory, and stated that he did not "intend to argue that the images [we]re computer simulations" and would not contest that the "persons depicted in the images are minors." The district court denied Kennedy's motion. The five witnesses testified on the second day of trial. On August 27, 2009, after three days of trial, a jury convicted Kennedy on both counts.
Kennedy was sentenced on February 19, 2010. At the hear- ing, Kennedy's counsel argued that possession of child pornography is a lesser-included offense of transportation of child pornography and thus that Kennedy's dual convictions violated double jeopardy. The court agreed and stated that it would remedy the violation by exercising its discretion to vacate the possession conviction. It gave three reasons for this decision: first, "[t]he evidence clearly and unambiguously demonstrate[d] that [Kennedy] knowingly and intentionally transported a large number of pornographic images of children into this country"; second, it would be "paradoxical" to give Kennedy a shorter sentence just because the government chose also to charge him with a less serious offense;*fn6 and third, nothing in 18 U.S.C. § 2252(a)(1) suggested that Congress did not intend to apply that statute to someone in Kennedy's situation. The court therefore concluded that it "would be an improper use of its discretion" to vacate the greater offense. Proceeding to calculate a sentence based on the transportation conviction alone, the court calculated a guidelines range of 135 to 168 months. Kennedy, the government, and the Probation Office all agreed that a downward departure was warranted. The court imposed the statutory minimum sentence of 60 months. After discussing the seriousness of Kennedy's offense and his background and characteristics (including a difficult childhood, addictions to child pornography and illegal substances, and the fact that Kennedy had twice violated the conditions of his pre-trial supervision), the court also imposed a 15-year period of supervised release. The special conditions of release included active participation in "a certified sexual deviancy program," participation in plethysmograph testing "as determined by [the deviancy program] therapist," a ban on direct or indirect contact with minors "unless accompanied and supervised" by an adult approved by the therapist or probation officer, and a require- ment that Kennedy have his place of residence "preapproved by the probation officer."
On April 21, 2010, the court held a hearing to consider what amount of restitution to award under 18 U.S.C. § 2259*fn7 to two victims whose images had been found on Kennedy's computer: "Amy" and "Vicky." Amy and Vicky claimed losses of $3 million and $227,000, respectively.
In support of her claim, Amy submitted a victim impact statement, a psychological evaluation, and a report from the Smith Economics Group calculating the value of "(1) the loss of wages and employee benefits; (2) the present value of future treatment and counseling costs; and (3) the reduction in value of life . . . also known as loss of enjoyment of life." Amy's victim impact statement explained that she was "a real victim of child pornography" because the dissemination of the images meant that she was "being exploited and used every day and every night somewhere in the world by someone." Because of the pictures, "[w]hat happened to me hasn't gone away. It will never go away." The psychological evaluation confirmed that Amy had experienced "a resurgence of . . . trauma" upon learning that the images were circulating on the Internet: "[Amy] feels that her privacy has been invaded on a fundamental level [and] fears the unknown and unnamed people who continued to be looking at these pictures of her for their own perverse interests or to 'groom' other children into these acts."
Vicky submitted a forensic psychological examination and a printout from an online message board on which anonymous users of child pornography were discussing images of her in graphic detail. The psychological report included a lengthy analysis of the effects of Vicky's childhood sexual abuse. Vicky reported being "stunned" when she was learned that images of her abuse had been disseminated on the Internet, and told her psychologist that she began "obsessively ruminating about scenarios of males in her community having viewed the videos." She also started having night terrors and panic attacks. In an undated victim impact statement, Vicky wrote:
We now have in our house boxes full of victim notifica- tions[*fn8 ] from cases all around the country involving pornographic images of me. Practically every time I've went to get the mail, there have been two or three of these notifications. They are constant reminders of the horrors of my childhood.
The psychological report also included an estimate of the future costs of Vicky's therapy. None of Amy or Vicky's submitted materials mentioned the defendant Kennedy.
The government asked the court to order Kennedy to pay "full restitution" to Amy and Vicky on a theory of "joint and several liability" (i.e. $3 million for Amy and $227,000 for Vicky) or, in the alternative, $1000 per image. Kennedy responded that the government had failed to meet its burden of proving the victims' entitlement to any amount of restitution under 18 U.S.C. § 2259.
While agreeing with Kennedy that § 2259 "requires some degree of causal connection between the victims' losses and the defendant's conduct," the court found the detail Amy and Vicky provided in their communications sufficient to demonstrate that connection. In particular, Amy and Vicky had shown themselves to be "abundantly aware of [the] repeated violations they experience, knowing their images involving child pornography are played over and over again," and the expert evaluations confirmed that Amy and Vicky suffered psychological damage from the knowledge that people were viewing the images. Therefore, the court reasoned that Amy and Vicky were "victims" of Kennedy's offense and were accordingly entitled to compensation.
Noting that "[t]he government and the defendant have each posited recommended amounts of restitution ranging from zero by the defendant to the full amount suggested by the government," the court stated that it believed that the "amount of $1,000 per image" was "reasonable." The district court therefore entered an order directing Kennedy to pay $17,000 to Amy (for the 17 images of her ...