United States District Court, N.D. Georgia, Atlanta Division
For USA, Plaintiff: Jeffrey Aaron Brown, Jessica Celina Morris, LEAD ATTORNEYS, U.S. Attorney's Office-ATL, Atlanta, GA.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR., UNITED STATES DISTRICT JUDGE.
This matter is before the Court on whether, on the facts of this case, the Court can order Defendant Benjamin Sanders (" Defendant" ) to pay restitution to L.C. as part of his sentence.
This case presents a unique issue regarding restitution. Defendant was convicted of the possession of pornographic images of children. Defendant, in addition to possessing child pornographic images obtained from the internet, possessed pornographic images of a victim known as L.C, Defendant's niece. L.C. alleges that in addition to taking sexually explicit photographs of her, Defendant also sexually assaulted and abused her. Defendant was not charged in this or any other prosecution with sexually assaulting or abusing L.C., and was not convicted of producing pornographic images of L.C.
The restitution the Government seeks is for therapy to treat L.C. resulting, generally, from Defendant's alleged sexual assaults and abuse of L.C., offenses for which Defendant was not charged or convicted. Defendant unequivocally denies that he sexually assaulted or abused L.C. and the Government's only evidence of such conduct are L.C.'s unsworn, out of court statements that they occurred. The question is whether restitution can be ordered here for treatment other than that resulting from the offense of conviction.
On November 13, 2012, Defendant was indicted. On August 13, 2013, the Government filed its Superseding Indictment  (the " Indictment" ), charging Defendant with: (i) using a minor to produce visual depictions of the minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2251(a) (Count One); (ii) receipt of visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) (Count Two); and (iii) possession of visual depictions of minors engaged in sexually explicit conduct that were produced using minors engaging in sexually explicit conduct and shipped and transported bye computer in interstate and foreign commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three).
On February 26, 2014, pursuant to the Guilty Plea and Plea Agreement entered into between Defendant and the Government [58-1] (the " Plea Agreement" ), Defendant pleaded to, and was found guilty of, Count Three of the Indictment  -- possession of child pornography that had been shipped or transported in interstate
or foreign commerce. The Government agreed, in the Plea Agreement, to dismiss the remaining Indictment counts. At the change of plea hearing held on February 26, 2014 (the " Plea Hearing" ), Defendant admitted that he possessed pornographic images of minors engaging in sexually explicit conduct which he obtained using the internet. He then also admitted possessing pornographic images of his niece, L.C., a 15-year old juvenile. The evidence is that the images of L.C. were produced in Georgia. Defendant does not admit he produced the images but there is evidence they were stored on a camera and hard drive that he used and which were found in his home. The Government agrees that the images of L.C. were not received or sent in interstate or foreign commerce.
This prosecution began by L.C.'s report to Cobb County law enforcement authorities that Defendant had sexually molested her. Even though Defendant ultimately pled guilty only to possession of child pornography that had traveled through interstate or foreign commerce, the Government asserts that Defendant also had a sexual relationship with L.C. and that he sexually assaulted her and restitution should be based on this conduct as well as his offense of conviction. At sentencing, the Government chose not to present any evidence of a sexual relationship with, or sexual assaults of, L.C. by Defendant. It relies on L.C.'s report of her sexual assault and abuse by Defendant to Cobb County, Georgia law enforcement and on L.C.'s statements about Defendant's conduct which are in the report of the therapist who evaluated L.C. prior to sentencing.
In his Plea Agreement and at the Plea Hearing, Defendant was advised he would have to pay restitution to any victim of his offense. Defendant agreed to:
pay full restitution of all victims of the offense to which he is pleading guilty and all relevant conduct, including, but not limited to, any counts dismissed as a result of this Plea Agreement.
(Plea Agreement at 7).
The Government seeks restitution for counseling and therapy for L.C. and the cost of cab fare for L.C. to attend these sessions. The costs are based on the evaluation of Ms. Dana W. Davis (" Davis" ), a licensed clinical social worker with the Terrebonne Children's Advocacy Center in Terrebonne, Louisiana. Davis prepared her evaluation report (the " Davis Report" ) on L.C., stating her findings and offering her assessment of the cost of future treatment. Davis's seven-page report detailed the harm L.C. suffered as a result of the sexual abuse and sexual assaults that L.C. claims Defendant committed. The Davis Report, in one sentence, noted that L.C. was unsure if and how the sexually explicit photographs of her that Defendant possessed were disseminated, and that this uncertainty causes her anxiety. (Davis Report at 2). Davis relied on L.C.'s report of Defendant's conduct toward her in reaching her diagnoses and plan for therapy.
Davis estimated the aggregate cost of counseling and therapy for L.C. to be $53,200. This is the amount of restitution, without cab fare, which the Government argues that Defendant should be required to pay to L.C. The restitution amount
was calculated based on an estimated rate of $152 per session, which was multiplied by the number of hours of therapy Davis opined that L.C. will require.
On June 19, 2014, the Court held a sentencing hearing (the " Sentencing Hearing" ), at which the Court, in addition to sentencing Defendant, addressed the restitution sought by the Government and to which Defendant objected. The Court noted that the Supreme Court's recent decision in Paroline v. United States, stated that the purpose of restitution under 18 U.S.C. § 2259 is to compensate victims for losses caused by the offense of conviction. (Sentencing Hearing Transcript p. 89, lines 21-25; p. 90, lines 1-5). The Court stated that the Davis Report identified that L.C.'s need for therapy results from the alleged sexual assaults committed by Defendant and the pornographic images of L.C. (Id. p. 90, lines 6-12). Defendant's conviction, however, was only for the offense of possession of child pornography. (Id. p. 90, lines 13-15). The Government acknowledged that there must be a link between the restitution losses and the offense of conviction, but noted that the Plea Agreement expanded Defendant's restitution obligation to include not only the offense to which he pleaded guilty, but to all relevant conduct, including the dismissed charges. (Id. p. 92, lines 12-20). The Government also asserted that enough evidence of the sexual assaults exists for the Court to consider this conduct when making its decision on restitution. (Id. p. 98-100). The Government asserts that the entire $53,200 cost of therapy and associated transportation expenses should be imposed as restitution Defendant is required to pay.
To consider all of the relevant restitution evidence and determine its statutory authority to award restitution, the Court, with the agreement of the Government and Defendant, decided to sentence Defendant at the Sentencing Hearing but to address the issue of restitution and the claimed restitution amount at a later scheduled hearing. (Id. p. 112, lines 4-12). That hearing was held on July 11, 2014 (the " Restitution Hearing" ).
The Court explained, at the Restitution Hearing, that while restitution was a term of the Plea Agreement, restitution had to be awarded consistent with the provisions of 18 U.S.C. § 2259. (Restitution Hearing Transcript p. 137-40). The Court also explained that the Davis Report focused almost exclusively on the harm L.C. suffered as a result of the sexual assaults and abuse, and that the report did not provide the Court with guidance as to how much of L.C.'s therapy needs were based upon Defendant's possession of pornographic images of her. The Government acknowledged that it could have retained an expert to apportion the therapy needs related to the possession of child pornography, but that apportionment had not been made. (Id. p. 153, lines 3-7, p. 154, lines 14-20). The Government asserted, despite the lack of apportionment, that the Court had the authority to award the entire requested amount of restitution based upon L.C.'s anxiety over the pornographic images of her. Because L.C.'s therapeutic needs were the result of Defendant's conduct toward L.C., he should be required to pay for all of the therapy required to address the damage he inflicted.
To provide the parties with an opportunity to address for what conduct the Court could award restitution, the impact of the Plea Agreement on the allowed scope of the conduct for which restitution could be awarded, and the Court's statutory authority to award ...