The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
A restitution hearing was held in this action on April 12, 2013. Relevant procedural history is recounted to provide background for the instant order.
The factual basis for Defendant's guilty plea reveals that on October 26, 2011, an undercover FBI Agent signed onto a peer-2-peer file sharing program via the Internet and "observed numerous files had titles and thumbnails indicative of child pornography." (Plea Agreement 14:5-10, ECF No. 32.) "The FBI Agent downloaded thirty two image files and one video file . . . . Twenty nine of the thirty two image files depicted child pornography, as did the one video file." (Id. at 14:10-12.) On November 8, 2011, the FBI Agent again accessed a peer-2-peer file sharing program and "observed numerous files had titles and thumbnails indicative of child pornography." (Id. at 14:22-15:2.) "This time . . . [e]ighty-eight of the ninety one image files [downloaded] appeared to depict child pornography, as did the one video file [downloaded]." (Id. at 15:2-5.) Defendant was subsequently identified in connection with the peer-2-peer file sharing program at issue. He was arrested and indicted, and on November 2, 2012, he plead guilty to a single count of distributing visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2). (See Plea Agreement.) Defendant "admitt[ed] that on October 26, 2011, he knowingly distributed images of child pornography . . . ." (Id. at 15:24-16:5.)
The findings in Defendant's Presentence Report ("PSR"), which have been adopted, evince that files found on Defendant's computer were submitted to the National Center for Missing and Exploited Children ("NCMEC"), Child Victim Identification Program. (PSR ¶¶ 14-15.*fn1 ) The NCMEC analysis identified "Vicky" and "Amy" as subjects of at least one of the images Defendant distributed. (Id. at ¶¶ 15-16, 18; Amy & Vicky's Br. Regarding Restitution 25 ("Victims' Brief"), ECF No. 60.) The United States Justice Department notified Vicky and Amy's counsel that Vicky and Amy were identified as victims in this action via letter on June 27, 2012. (Victims' Brief 4.)
On November 27, 2012, Vicky submitted a request for restitution to the U.S. Attorney's Office totaling $1,330,015. (Id.) On November 30, 2012, Amy submitted a request for restitution to the U.S. Attorney's Office totaling $3,367,854. (Id. at 5.) These restitution requests were transmitted to the United States Probation Office, which provided them to the undersigned judge for his review. (Id.; PSR ¶¶ 18-19.)
Probation did not recommend restitution in the PSR. (PSR ¶ 18.) Concerning restitution, the PSR states in full:
[R]estitution is not recommended based on the Ninth Circuit ruling in U.S. v. Kennedy, 643 F.3d 1251 (9th Cir. 2011), which puts the burden on the Government to show that there is a causal connection between the defendant's criminal conduct and the harm to the victim(s). At this time, there is insufficient information to show that the Government has met its burden to allow for the imposition of restitution in this case. The Government may wish to set a subsequent hearing to allow the Court to make a determination on restitution.
(Id.) The government did not brief the restitution issue in advance of either of Defendant's February 15, 2012 or February 22, 2012 sentencing hearings.*fn2 And at Defendant's February 22nd sentencing hearing, the government's entire argument concerning restitution was as follows:
[T]he government wanted to just verify with the Court whether the Court had received the two restitution packages from the attorneys for the Vicky series and the Amy series.
Ms. Prince: Okay. And just wanted to state for the record that independent, that these attorneys have filed restitution claims for these two individuals, and are requesting the full amount of restitution, and the government submits.
(Rep. Tr. 4:20-5:4, Feb. 22, 2013.) The government's submission of these restitution issues, in light of Probation's statement in the PSR that the government had not met its burden on restitution, was tantamount to conceding that the government could not meet its restitution burden.
Nevertheless, counsel for the government later inquired at the sentencing hearing whether "the Court [would] be ordering restitution in this case," and the undersigned judge "didn't order it . . . following the recommendation of the probation officer for the reasons stated in the [PSR]." (Id. at 7:21-8:1.)
Amy and Vicky filed a petition for writ of mandamus under the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. § 3771, challenging the denial of restitution to them. See In re Amy & Vicky, --- F.3d ----, 2013 WL 1197266, at *1 (9th Cir. 2013). Vicky and Amy contended in their mandamus petition that the undersigned judge "erred in applying United States v. Kennedy, 643 F.3d 1251 (9th Cir.2011)[, and] . . . erred in not awarding them any restitution." Id.
The Ninth Circuit held that there was no error "in imposing a proximate cause requirement when applying 18 U.S.C. § 2259(b)(3) . . . ." Id. However, the Ninth Circuit also held that it was an abuse of discretion "in refusing to order any restitution." Id. The Ninth Circuit stated:
During the sentencing hearing, with respect to restitution, the district court adopted the [PSR's] recommendation. The PSR did not recommend restitution under Kennedy only because the writer of the report concluded that he lacked sufficient information to show that the Government had met its burden of establishing a causal connection. Our review of the record demonstrates that [Amy and Vicky] provided sufficient evidence to establish a causal connection between defendant's offense and [their] losses.
Id. "Accordingly," the Ninth Circuit granted Amy and Vicky's petition in part, ordered that the judgment "shall [be] vacate[d] with respect to restitution," and remanded the matter to "conduct such further proceedings as may be appropriate to determine an amount of restitution to be paid to Amy and Vicky." Id. at *1-2.
In accordance with the Ninth Circuit's opinion, "the judgment entered on March 6, 2013, [wa]s vacated only with respect to the determination concerning restitution[,]" and a hearing was scheduled regarding the restitution issues. (Am. Order, ECF No. 56.) Further, "each party and the Amy and Vicky victims [we]re requested to file a brief concerning the determination of an amount of restitution to be paid to Amy and Vicky consistent with the Ninth Circuit's . . . opinion and United States v. Kennedy . . . ." (Id. (internal quotation marks and brackets omitted).)
Each party, and Amy and Vicky (collectively "victims"), filed supplemental briefing concerning restitution. (See ECF Nos. 60-62.) Amy and Vicky also provided separate, supplemental restitution requests to the United States Attorney's Office, which were subsequently transmitted to the Probation Office and then to the undersigned judge.
Defendant objects to each victim's submission of "'updated' victim restitution" requests, arguing "[t]he new information" should "have [been] provided prior to the previous hearing." (Def.'s Brief 5:27-6:5.) Defendant's objection is overruled since the undersigned judge provided the victims with an opportunity to file amicus curiae briefs on the restitution issue. (Am. Order 1:20-2:2.) Although the undersigned judge did not contemplate that the victims would augment the record, doing so was within the ambit of the briefing opportunity provided. Further, it is evident that the government was permitted to augment the record. (See, e.g., PSR ¶ 18.)
18 U.S.C. § 2259 "makes restitution 'mandatory' for offenses involving sexual exploitation and other abuse of children." Kennedy, 643 F.3d at 1260. "The order of restitution must 'direct the defendant to pay the victim . . . the full amount of the victim's losses.'" Id. (quoting § 2259(b)(1)). Section 2259 defines the phrase "full amount of the victim's losses." Id.
"[F]ull amount of the victim's losses" includes any costs incurred by the victim for -
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income; (E) attorneys' fees, as well as other ...