United States v. Monzel

930 F.3d 470

UNITED STATES of America, Appellee

v.Michael M. MONZEL, Appellant

No. 16-3108

United States Court of Appeals, District of Columbia Circuit.

Argued January 23, 2019

Decided July 19, 2019

Rosanna M. Taormina, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender.

Eric 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:

Congress 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 , 572 U.S. 434, 134 S. Ct. 1710, 1727, 188 L.Ed.2d 714 (2014).

In 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.

I

Section 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).

Under 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. § 2259(b)(2) ).¹

II

In 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." Id .

Following 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).

Amy 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.

But, 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.

The government appealed, and while that appeal was pending, the Supreme Court granted certiorari in Paroline . See Paroline v. United States , 570 U.S. 931, 133 S.Ct. 2886, 186 L.Ed.2d 932 (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).

Ten 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.

This 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).

The 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." Id.

To 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 conviction. Id.

Next, 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." Id.

Monzel appeals.

III

We 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, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996).

A

We are 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 result, there can be no "precise algorithm" for computing individual restitution awards. Id . at 1728.

Here, as in Paroline , the defendant was a non-distributing possessor of an...