Child Pornography, Restitution and Mandamus

I’ve done a few posts on the practice of awarding restitution in child pornography cases. As I’ve noted in those posts, the issue of restitution arises when the victim – the child who was used to create child pornography – files a restitution request in the criminal case against someone who possessed, distributed and/or created child pornography. I suppose I should say, “the former child who was used . . . “, since the reported cases I’ve seen all involve adults who were victimized as children.

This post is about a case that also involves a restitution request in a child pornography case, but the issue it raises is a little different than the ones I addressed in my earlier posts. Here’s how the issue arose:

On December 10, 2009, Michael Monzel pled guilty to one count of distributing child pornography in violation of 18 U.S. Code § 2252(a)(2) and one count of possessing child pornography in violation of 18 U.S. Code § 2252(a)(4)(B). The National Center for Missing and Exploited Children identified petitioner Amy as the minor depicted in one of the pornographic images Monzel possessed but did not distribute.

Amy filed a victim impact statement seeking $3,263,758 in restitution from Monzel, an amount she claims reflects her total losses from the creation and distribution of pornographic images of her as a child -- including images of her being sexually abused. Monzel argued that the district court should award Amy no more than $100 because the government had failed to show what portion of Amy's losses he had caused.

In an order entered on January 11, 2011, the district court awarded Amy $5000 in what it called `nominal’ restitution. Even though the court had `no doubt’ this amount was `less than the actual harm’ Monzel caused Amy, it declined to award more because neither the government nor Amy had submitted evidence `as to what losses were caused by [his] possession of [the victim's] images’. . . . The court also declined to hold Monzel jointly and severally liable for the entirety of the harm Amy has suffered as a result of the distribution and possession of her image by others, given `the substantial logistical difficulties in tracking awards made and money actually recovered’ from such persons.

Amy now petitions for a writ of mandamus under 18 U.S. Code § 3771(d)(3) directing the district court to order Monzel to pay her $3,263,758 in restitution.

U.S. v. Monzel, __ F.3d __, 2011 WL 1466365 (U.S. Court of Appeals for the District of Columbia Circuit 2011).

As Wikipedia notes, mandamus is a judicial remedy “in the form of an order from a superior court to any . . .subordinate court . . . to do or forbear from doing some specific act”. If you’d like to read a little more about how mandamus works in the federal system, check out this Wikipedia entry.

In ruling on Amy’s mandamus petition, the Court of Appeals noted that to prevail she had to show “she has a clear and indisputable right to relief, the district court has a clear duty to act, and she has no other adequate remedy.” U.S. v. Monzel, supra. The court also noted that as “a crime victim”, Amy has a “`right to full and timely restitution as provided in law’” and the district court “has a corresponding duty to “`direct’” Monzel to pay “`the full amount of [her] losses as determined by the court’”. U.S. v. Monzel, supra (quoting 18 U.S. Code §§ 3771(a)(6) and 2259(b)(1)).

The court explained that because “the record does not establish that Monzel's possession of her image caused all of her losses, Amy does not have a right to the full $3,263,758 she seeks” but is “entitled to the amount of her losses Monzel proximately caused.” U.S. v. Monzel, supra. It explained that 18 U.S. Code § 2259 directs a district court to pay “restitution to the `victim’ of a crime of child sexual exploitation”, and defines “victim” as “the individual harmed as a result of the commission of a crime” under the child exploitation statutes. U.S. v. Monzel, supra.

The Court of Appeals noted that the statute authorizes restitution for costs that fall into six categories: medical services; physical and occupational therapy or rehabilitation; transportation, temporary housing, and child care expenses; lost income; attorneys' fees and other litigation costs; and “any other losses suffered by the victim as a proximate result of the offense”. U.S. v. Monzel, supra (quoting 18 U.S. Code § 2259(b)). It also explained that, as I’ve noted in earlier posts, “a defendant is liable only [to pay restitution] for harms that he proximately caused.” U.S. v. Monzel, supra.

The courtt then explained why Amy was not entitled to the full amount she sought:

Although the government submitted evidence that Amy suffered losses stemming from her sexual exploitation as a child and argued persuasively that possession of child pornography causes harm to the minors depicted, it made no showing as to the amount of Amy's losses traceable to Monzel. Whatever else may be said of his crime, the record before us does not establish that Monzel caused all of Amy's losses.

Nor can we say that Amy is clearly and indisputably entitled to the full $3,263,758 from Monzel on the ground that her injuries are `indivisible.’ Amy argues . . . that the causes of her injuries cannot reasonably be divided among the unknown number of possessors and distributors of her images and that Monzel is therefore jointly and severally liable with other possessors and distributors for the full amount of her losses. . . . .

U.S. v. Monzel, supra (emphasis in the original).

In making that argument, Amy relied on comments William Prosser made in his influential treatise on tort law, which also involves restitution. U.S. v. Monzel, supra. The Court of Appeals noted that her reliance on Prosser undermine her argument because Prosser said that joint and several liability is imposed only “where two or more causes produce a single `result’ and `either cause would have been sufficient in itself’ to produce the result or each was `essential to the injury.’” U.S. v. Monzel, supra.

Monzel's possession of Amy's image, which the district court found added to her injuries, was not `sufficient in itself’ to produce all of them, nor was it `essential’ to all of them. Amy's profound suffering is due in large part to her knowledge that each day, untold numbers of people across the world are viewing and distributing images of her sexual abuse. . . .

Monzel's possession of a single image of Amy was neither a necessary nor a sufficient cause of all of her losses. She would have suffered tremendously from her sexual abuse regardless of what Monzel did. . . . [T]he government has not shown that Monzel caused the entirety of Amy's losses.

U.S. v. Monzel, supra (emphasis in the original).

The court also noted, though, that the district court “clearly” erred by awarding an

amount of restitution it acknowledged was less than the harm Monzel had caused. Under § 3664(e), the government bears the burden of demonstrating the amount of loss the victim suffered `as a result of the [defendant's] offense.’ In this case, because the government failed to submit `any evidence whatsoever’ regarding the amount of Amy's losses attributable to Monzel, the district court said it had no basis upon which to calculate the amount of harm Monzel had proximately caused her and so decided to award `nominal restitution of $5000’. . . .

U.S. v. Monzel, supra.

And the Court of Appeals pointed out that in the

very next sentence the court said it had `no doubt’ that this award was `less than the actual harm’ Monzel had caused Amy. This was clear and indisputable error. A district court cannot avoid awarding the `full amount of the victim's losses’ . . . simply because the attribution analysis is difficult or the government provides less-than-ideal information. The court must order restitution equal to the amount of harm the government proves the defendant caused the victim. . . . Certainly the court cannot award less restitution than it determines the victim is entitled to.

U.S. v. Monzel, supra.

The appellate court “recognize[d] that determining the dollar amount of a victim's losses attributable to the defendant will often be difficult”, especially in “ a case such as this one, where the harm is ongoing and the number of offenders impossible to pinpoint”. U.S. v. Monzel, supra. It pointed out, though, that § 2559

does `not impose[ ] a requirement of causation approaching mathematical precision.’ U.S. v. Doe, 488 F.3d 1154 (U.S. Court of Appeals for the 9<sup>th</sup> Cir. 2007). Rather, the district court's charge is `to estimate, based upon facts in the record, the amount of [the] victim's loss with some reasonable certainty.’ [U.S. v. Doe, supra.]

The Court of Appeals therefore granted Amy’s mandamus petition in part, remanding the case to the district court “to consider anew the amount of her losses attributable to Monzel and to order restitution equal to that amount.” U.S. v. Monzel, supra. It explained that on remand, the district court should

consider anew the amount of Amy's losses attributable to Monzel's offense and order restitution equal to that amount. Although there is relatively little in the present record to guide its decisionmaking on this, the district court is free to order the government to submit evidence regarding what losses were caused by Monzel's possession of Amy's image or to order the government to suggest a formula for determining the proper amount of restitution.

The burden is on the government to prove the amount of Amy's losses Monzel caused. We expect the government will do more this time around to aid the district court. We express no view as to the appropriate level of restitution, but emphasize that in fixing the amount the district court must rely upon some principled method for determining the harm Monzel proximately caused.

U.S. v. Monzel, supra.