United States Court of Appeals, District of Columbia Circuit
January 23, 2019
from the United States District Court for the District of
Columbia (No. 1:09-cr-00243-1)
Rosanna M. Taormina, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was
A.J. Kramer, Federal Public Defender.
Hansford, Assistant U.S. Attorney, argued the cause for
appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Elizabeth H. Danello, and
David B. Kent, Assistant U.S. Attorneys.
Before: Rogers, Millett and Katsas, Circuit Judges.
Millett, Circuit Judge.
has mandated that those convicted of child pornography
offenses pay "full" restitution to their victims
for any injuries they "proximate[ly]" caused. 18
U.S.C. § 2259 (2012). That directive recognizes that
every perpetrator's viewing of a child's image
inflicts distinct harm on that child in that it effects
"a repetition of the victim's abuse." See
Paroline v. United States, 134 S.Ct. 1710, 1727 (2014).
Paroline, the Supreme Court prescribed a general
method and "rough guideposts" for trial courts to
follow in determining a perpetrator's "relative
causal role" in a victim's injury. 134
S.Ct. at 1728. This case asks what portion of a
victim's damages a single, non-distributing possessor can
be ordered to pay. Because the district court followed
Paroline in calculating a restitutionary amount that
is reasonably tailored to the defendant Michael Monzel's
causal role, we affirm.
2259(a) of Title 18 requires district courts to "order
restitution for any offense" involving "Sexual
Exploitation and Other Abuse of Children." 18 U.S.C.
§ 2259(a) (cross-referencing the offenses specified in
Chapter 110 of Title 18). So as not to leave any doubt,
Congress declared that "[t]he issuance of a restitution
order under this section is mandatory."
Id. § 2259(b)(4) (emphasis added). Both
distribution and possession of child pornography offenses
fall under Section 2259's mandatory restitution scheme.
See id. § 2252(a)(2), (4)(B).
Section 2259, convicted defendants must pay their victim the
"full amount of the victim's losses as determined by
the court[.]" 18 U.S.C. § 2259(b)(1); see also
id. § 2259(c) (defining the victim entitled to
restitution as "the individual harmed as a result of a
commission of a crime under this chapter"). The statute,
in turn, defines the "full amount of the victim's
losses" as including "costs incurred" for
medical services (physical, psychiatric, and psychological),
therapy, necessary transportation, temporary housing and
child care expenses, lost income, and attorneys' fees, as
well as "any other losses suffered * * * as a proximate
result of the offense." Id. §
2259(b)(3)(A)-(F). The government bears the burden of
"demonstrating the amount of the loss sustained by a
victim as a result of the offense." Id. §
3664(e) (incorporated by reference in 18 U.S.C. §
December 2009, Michael Monzel pled guilty to one count each
of distributing and of possessing child pornography. See
United States v. Monzel, 641 F.3d 528, 530 (D.C. Cir.
2011) ("Monzel I"); 18 U.S.C. §
2252(a)(2), (4)(B). The child pornography collection amassed
by Monzel included an image of "Amy." See
Monzel I, 641 F.3d at 530. Amy is the same victimized
individual who sought restitution in Paroline. 134
S.Ct. at 1716. Her story is, at this point, tragically
familiar. When she was "eight and nine years old, [Amy]
was sexually abused by her uncle in order to produce child
pornography." Id. at 1717. She underwent
therapy from 1998 through 1999, and, according to her
therapist, was "back to normal" "[b]y the end
of this period." Id. But then a "major
blow to her recovery came when, at the age of 17, she learned
that images of her abuse were being trafficked on the
Internet." Id. Naturally, "[t]he knowledge
that her images were circulated far and wide renewed
[Amy's] trauma and made it difficult for her to recover
from her abuse." Id. By the time
Paroline was decided in 2014, possessors of her
image "easily number[ed] in the thousands."
Monzel's conviction, the district court sentenced him to
ten years of imprisonment. Amy then sought restitution for
all of her losses on a theory of joint and several liability.
Monzel I, 641 F.3d at 531. Monzel, on the other
hand, thought Amy should receive only $100 because the
government had failed to show "what portion of [her]
losses he had caused." Id. at 530. The district
court initially awarded Amy $5, 000 of "nominal"
restitution. Id. Although "the Government ha[d]
not * * * suggested any rational, evidence-based procedure
for ascertaining the dollar value of the harms"
attributable to Monzel, the district court explained that it
had "no doubt" the $5, 000 award was "less
than the actual harm" Monzel had caused. United
States v. Monzel, Criminal Case No. 09-243 (GK), 2011 WL
10549405, at *2-3 (D.D.C. Jan. 11, 2011).
filed a petition for a writ of mandamus in this court to
challenge the amount of the district court's award.
See 18 U.S.C. § 3771(d)(3) (authorizing
mandamus actions by victims challenging restitutionary
awards). This court granted the petition in part. While we
held that the rule of joint and several liability does not
apply to the child-pornography restitution scheme, we agreed
that the district court could not "award an amount of
restitution it acknowledged was less than the harm Monzel had
caused." Monzel I, 641 F.3d at 539. We directed
the district court on remand to "rely upon some
principled method for determining the harm Monzel proximately
caused." Id. at 540.
alas, the district court's quest for a fair causal
benchmark proved unfruitful. "[F]or reasons not
of its making," the district court explained, the
government was unable to offer anything more than
"speculati[on]" as to Monzel's individual
causal contribution to Amy's harm. See United States
v. Monzel, Criminal Case No. 09-243 (GK), 2012 WL
12069547, at *6, *4 n.4 (D.D.C. Nov. 6, 2012) (emphasis
added). Recognizing that the result was "most
unpalatable," the district court ruled that the
government had left it no choice but to deny completely the
restitution request. Id. at *6.
government appealed, and while that appeal was pending, the
Supreme Court granted certiorari in Paroline.
See Paroline v. United States, No. 12-8561 (cert.
granted, Jun. 27, 2013). Because that case involved the same
victim, the same crime, and the same underlying legal
question, we held the appeal in abeyance pending the Supreme
Court's disposition of Paroline. See
Order, In re: Amy, Child Pornography Victim, No.
12-3093, 1:09-cr-00243-GK-1 (D.C. Cir. June 27, 2013).
months later, the Supreme Court decided Paroline.
134 S.Ct. at 1710. Paroline rejected Amy's
theory of joint and several liability, holding instead that
restitution is available "only to the extent the
defendant's offense proximately caused a victim's
losses." Id. at 1722.
court vacated and remanded for the district court "to
redetermine restitution for Amy consistent with" the
Paroline framework. See Order, In re:
Amy, Child Pornography Victim, No. 12-3093 (D.C. Cir.
June 13, 2014).
district court then awarded Amy $7, 500 in restitution.
See United States v. Monzel, 209 F.Supp.3d 73, 77
(D.D.C. 2016) ("Monzel II"). The court
began, as Paroline directed, by calculating
Amy's total losses from the continued trafficking of her
image, finding that they amounted to $3, 243, 195.
Id. at 76. That amount was based on "the
Government's second request for restitution," minus
$20, 563 for certain "specific expenses."
determine Monzel's individual causal contribution, the
district court tracked Paroline's
"guideposts," 134 S.Ct. at 1728. The court adopted
the government's statement that, to its knowledge, there
had been "197 restitution orders on behalf of Amy."
Monzel II, 209 F.Supp.3d at 76. The court also
accepted the government's representation that it lacked
"sufficient, reliable data from which to make reasonable
estimates" of two other Paroline guideposts:
the anticipated number of future convictions related to
Amy's image, or of "future offenders" who will
possess and distribute Amy's image while evading
the district court found that Monzel's possession of a
single image of Amy made only a relatively "minor"
contribution to her losses. Monzel II, 209 F.Supp.3d
at 76. Based on Monzel's individual role, as well as
information about "prior restitution awards for
Amy," the district court, "in its discretion,
determine[d] that an award of $7, 500 in restitution [was]
appropriate." Id. at 77. That amount, the
district court found, "comport[ed] with [Monzel's]
causal-but minor-role in Amy's ongoing losses resulting
from the continued trafficking of her images."
review a restitution order for an abuse of discretion, and we
"examine the factual findings underpinning the order for
clear error." In re Sealed Case, 702 F.3d 59,
66 (D.C. Cir. 2012). "A district court by definition
abuses its discretion when it makes an error of law."
Koon v. United States, 518 U.S. 81, 100 (1996).
not the first, and surely will not be the last, court to
wrestle with giving practical effect to Section 2259's
proximate-cause test for mandatory restitution in the context
of child-pornography offenses. While "every
viewing" of a child's pornographic image itself
re-inflicts "the victim's abuse,"
Paroline, 134 S.Ct. at 1727, no "discrete,
readily definable incremental loss" can easily be traced
to each individual possessor's exploitation of the image,
id. 1726. As a ...