United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE, Magistrate Judge.
Pursuant to referral from the district judge, ECF No. 36, a restitution hearing was held before the undersigned on July 29 and August 5, 2014. On both occasions Assistant U.S. Attorney Kyle Reardon appeared for the government, and Assistant Federal Defender Douglas Beevers appeared with and on behalf of the defendant, Bruce Austin Watkins. Having considered the evidence submitted with the Presentence Report in support of the victim's restitution request (ECF Nos. 32-4 through 32-9) and the supplemental exhibits provided by the government after the hearing, as well defendant's supplemental memorandum regarding restitution (ECF No. 46) and the arguments of the parties at the hearing, the court makes the following findings of fact and recommendations regarding the calculation of restitution in this matter.
Defendant was charged by indictment with receipt of child pornography (ECF No. 1), and pled guilty on December 3, 2013 (ECF No. 23). The factual basis appended to the plea agreement states as follows:
In November 2012, law enforcement identified a computer at the defendant's residence offering files of child pornography through the Ares file-sharing network. Law enforcement successfully downloaded three files from the defendant.
Law enforcement executed a search at the defendant's residence in Lassen County, California on May 6, 2013. Two laptops and one 1TB external hard drive were seized from the residence because they contained child pornography. On the three devices were more than 500 videos and 220 image files. These files were stored in user created folders on the devices, meaning that after downloading them, the defendant saved them in various locations on his computers. These files had been saved on the defendant's computer between January 21, 2007, and April 29, 2013.
Among the files received by the defendant and saved on his computer were the following:
1. hussyfan - tied-up both girl 9y.avi: this video shows a 5 to 7 year old girl with her legs tied at the ankle and help up over her head; the girls is being vaginally and anally penetrated by an adult male;
2. ((hussyfan)) (pthc) babyj star.mpg: this video shows several scenes of toddler-aged children being sexually assaulted by adult males;
3. !!new dark studio 10 cd1 (dad and babyj)(2).mpg: this video shows an approximately three-year-old girl performing oral sex on an adult male;
4. (pthc_ Vicky 3.mpg: this video shows a prepubescent female performing oral sex on an adult male; and
5. pthc dad daughter 099.jpg: this image shows a prepubescent child being sexually assaulted by an adult make.
At the time of the search, the defendant told law enforcement that he had been looking at child pornography online for 15 to 20 years, and that he was aware that he was sharing files through the Ares file-sharing network. The defendant also identified the search terms that he would use to locate files of interest to him. The defendant said that he masturbated to the images he downloaded in order to avoid the urge to have sex throughout the day. The defendant also said that he believed that the children in the videos and images that he downloaded enjoyed having sex.
The defendant spoke with FBI agents on two subsequent occasions. On May 31, 2013, the defendant inquired into when his computer might be returned to him. The defendant said that he was considering purchasing another computer in order to rebuild his collection.
On July 19, 2013, the defendant called the FBI office in Reno, Nevada and again asked about when his computers would be returned. He also said that he would leave his computer running constantly in order to download files of child pornography, that he downloaded "100 times" more files than he could ever view, and that he would choose files to download based upon how many other users had downloaded them, assuming these to be the most popular, and therefore best files. He said he had seen images of children in diapers, but that he was not sexually aroused by them. He also described one video that he viewed often involving a bound eight-year old girl being sexually abused. He also described a video involving a bound 10-year-old girl engaged in sexually explicit conduct, as well as a video of a 12-year-old girl engaged in bestiality.
A sentencing hearing was held before the Honorable Lawrence K. Karlton on May 28, 2014. Defendant was sentenced to a term of 90 months imprisonment to be followed by 120 months of supervised release. A fine was waived, and the matter of restitution was referred to the undersigned.
The pornography involved in this case involves a number of unidentified child victims and one identified victim. The victim known as "Vicky" seeks restitution here in the amount of $150, 000.00. See ECF No. 32-3. Vicky was raped and sexually exploited by her father at the ages of 9 and 10. Images and video recordings were made of the abuse, which included bondage and vaginal and anal penetration. The resulting pornography, known as the "Vicky series, " has been distributed worldwide and is the subject of recurring restitution litigation in the federal courts. Vicky's legal representative has submitted extensive documentation of Vicky's injuries and resulting psychological treatment needs, educational and vocational losses, lost earnings, costs and attorney's fees. ECF Nos. 32-4 through 32-9; Gov't Ex. A, B.
The plea agreement in this case includes a waiver of defendant's right to appeal the restitution amount so long as restitution does not exceed $5, 000.00. ECF No. 25 at 10.
On April 23, 2014, the United States Supreme Court decided Paroline v. United States , 134 S.Ct. 1710 (2014), which held that restitution in child pornography cases is limited to the losses proximately caused by the individual defendant. The lower courts have only just begun applying Paroline. One of the earliest cases to do so in a written opinion is United States v. Hernandez, No. 2:11-cr-0026 GEB, 2014 U.S. Dist. LEXIS 89688 (July 1, 2014), which also involved restitution to Vicky. At the initial hearing on the present matter, the undersigned solicited the positions of the parties on the Hernandez approach to the calculation of restitution. At that time (July 29), the parties believed that they might reach agreement on the restitution amount, and sought a week's continuance to pursue negotiations and seek the victim's agreement to any settlement. Although no agreement was reached, the positions of the government and the defense are not far apart.
The government endorses the Hernandez approach, which divides the victim's total losses by the number of extant restitution orders in cases involving Vicky. The government relies on the evidence provided by Vicky's representative to establish total losses of $1, 043, 269.17 (the same amount found by Judge Burrell in Hernandez), and represents that the total universe of restitution orders now numbers 476. The defense stipulated that these numbers are accurate. The government accordingly seeks restitution in the amount of $2191.74. Counsel for the government represented that the victim would have accepted a negotiated restitution amount of $2200.00. Agreement with the defense was not reached, however, and the victim has not abandoned her original request for restitution in the amount of $150, 000.00.
The defendant urges the court to divide the total losses not by the number of existing restitution orders, but by a larger number that includes future restitution orders. See ECF No. 46.
II. Legal Standard
"Enacted as a component of the Violence Against Women Act of 1994, [18 U.S.C.] § 2259 requires district courts to award restitution for certain federal criminal offenses, including [the receipt of] child-pornography...." ...