United States v. Chapman

United States of America, Plaintiff, v. Justin Thomas Chapman, Defendant.

No. 18-cr-250 (ECT)

United States District Court, D. Minnesota

August 31, 2021

Manda M. Sertich, Alexander D. Chiquoine, and Sarah E. Hudleston,

Manvir K. Atwal, Thomas Chapman.

OPINION AND ORDER

ERIC C. TOSTRUD, UNITED STATES DISTRICT COURT

This matter is before the Court on the Government's motion for a determination of restitution. ECF No. 100. Defendant Justin Thomas Chapman previously pleaded guilty to distribution of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1). ECF Nos. 55, 56. In his plea agreement, Chapman agreed that restitution is mandatory in this case and that he could be required to “make restitution to any victim of his offenses, regardless of whether the victim was named in the Indictment, the count of conviction, or [the Plea] Agreement.” ECF No. 56 ¶ 9. On September 26, 2019, Chapman was sentenced to a 180-month term of imprisonment followed by a 10-year term of supervised release. ECF No. 79. A determination of the amount of restitution was deferred.^[1] ECF No. 79 at 6. After sentencing, defense counsel attempted to resolve the issue of restitution with at least some of the thirteen victims who requested restitution in this case. See ECF Nos. 87, 94, 95. Chapman ultimately reached an agreement with five of the victims-“Pia, ” “Ava, ” “Mya ” “Henley, ” and “Maureen”^[2]-that he would pay each of them $1, 000 and the Government has joined in that agreement. ECF No. 104. The Government recommends restitution awards in the amount of $1, 000 for four other victims-“Cindy, ” “Emily, ” “Andy, ” and “Jenny”-and $3, 000 for the remaining four- “Jane, ” “Erika, ” “Tori ” and “Raven.” ECF No. 100 at 9. Chapman asks that restitution in the amount of $1, 000 be ordered for all eight of the remaining victims. The Government's motion will be granted, and restitution will be ordered as set forth below.

I

A court must order restitution if a defendant is convicted of a child pornography offense. 18 U.S.C. § 2259(a) (b)(4).^[3] “A court may not decline to issue an order under [§ 2259] because of . . . the economic circumstances of the defendant” or “the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.” Id. § 2259(b)(4)(B)(i). Each victim is entitled to the “full amount of [his or her] losses, ” including “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 costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the offense.

Id. § 2259(b)(1), (3)(A)-(F).

In Paroline v. United States, the Supreme Court established a framework for determining an appropriate award of restitution under § 2259 for victims of childpornography offenses. 572 U.S. 434 (2014). “[W]here it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses.”^[4]Id. at 458. “[D]istrict courts might, as a starting point, determine the amount of the victim's losses caused by the continuing traffic in the victim's images (excluding, of course, any remote losses . . .), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant's conduct in producing those losses.” Id. at 460. A district court should look to the following factors as “rough guideposts”:

the number of past criminal defendants found to have contributed to the victim's general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted) whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant's relative causal role.

Id. The Government bears “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense” by preponderance of the evidence. 18 U.S.C. § 3664(e); see Paroline, 572 U.S. at 462; United States v. Bordman, 895 F.3d 1048, 1057 (8th Cir. 2018).

II

“[T]he Paroline framework is very difficult-if not impossible-to apply in practice.” United States v Erickson, 388 F.Supp.3d 1086, 1088-89 & n.2 (D. Minn. 2019) (collecting cases). Indeed, the Supreme Court itself recognized that the Paroline approach “involves discretion and estimation, ” and that courts “can only do their best to apply the statue as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the consequences and gravity of their own conduct, not the conduct of others.” Paroline, 572 U.S. at 462. In particular, “Paroline's suggested ‘starting point'-‘the amount of the victim's losses caused by the continuing traffic in the victim's images'-is nearly impossible for courts to reliably ascertain” because it “requires a court to ‘disaggregate' the harm caused to the victim by the sexual abuse from the harm caused to the victim by the trafficking of the images of the sexual abuse.” Erickson, 388 F.Supp.3d at 1089 (quoting Paroline, 572 U.S. at 460); see Bordman, 895 F.3d at 1058-59 (rejecting appellant's argument that “the district court abused its discretion by failing to disaggregate the harm caused by the initial abuse from the harm that his later possession caused” because that would transform the disaggregation factor from a “rough guidepost” into a “rigid formula”). There are similar challenges with respect to some of the additional factors for consideration identified in Paroline. Though there may be “anecdotal evidence” in the record “about the popularity of a particular child-pornography series . . ., there is simply no way for any judge or attorney to make a ‘reasonable prediction[]' about ‘the broader number of offenders involved' or ‘the number of future offenders likely to be caught and convicted[.]'” Erickson, 388 F.Supp. at 1089 (quoting Paroline, 572 U.S. at 460).

Other Paroline factors are easier to ascertain and apply, such as whether the defendant was connected to the production of the images, the extent to which the defendant reproduced or distributed images of the victim, and the number of images or videos the defendant possessed of the victim. In this case, there is no evidence that Chapman was connected to the production of the videos and images that he traded and possessed. In his plea agreement, Chapman admitted that he moderated a child pornography chatroom through which he shared child pornography in his possession but the extent of his distribution activities is unclear. ECF No. 56 ¶ 2. Reports from the National Center for Missing and Exploited Children show the number of images and videos Chapman possessed of each victim. Gov't Ex. 11 [ECF No. 101-10].

On the whole, these factors tend to make Chapman relatively less culpable than other offenders in contributing to these victims' losses. See Erickson, 388 F.Supp.3d at 1090. As explained in further detail below, Chapman will be ordered to pay $1, 000 to Cindy, Emily, Andy, and Jenny and $3, 000 to Jane, Erika, Tori, and Raven.^[5] These awards are “reasonable and circumscribed” in light of the relevant factors and commensurate with restitution awards in other cases under like circumstances (including in cases involving some of the same victims). Paroline, 572 U.S. at 459; see Bordman, 895 F.3d at 1057 and n.2; Erickson, 388 F.Supp.3d at 1088, 1090-95; United States v. Debruzzi, No. 17-cv-160 (DWF/KMM), 2019 WL 6975457, at *3 (D. Minn. Dec. 20, 2019).

A

Chapman possessed two images of Cindy. Gov't Ex. 11 at 79.^[6] Cindy estimates the total amount of her documented economic losses to be $1, 608, 707.58, not including “necessary ongoing and future counseling and educational expenses.” Gov't Ex. 2 at 1 [ECF No. 101-1]. It appears that some portion of these expenses may have been incurred prior to Chapman's offense conduct. See id. at 1-2; Erickson, 388 F.Supp.3d at 1091 (excluding from Cindy's restitution request in that case medical expenses incurred prior to when the defendant's conduct started). Cindy requests $8, 000 in restitution in this case. Gov't Ex. 2 at 8. There is no evidence of how many outstanding restitution orders there are for Cindy or how much restitution she has received to date, but Cindy notes that she received “hundreds of notifications” based on an “unending stream of newly-discovered offenders” when, for “a short time in college ” she opted to receive notifications from the Government about prosecutions in which images of her were identified. Id. at 3, 12. In light of the possibility of a substantial number of offenders, past and future, and the extremely limited causal role Chapman played in Cindy's losses by...