United States v. Rothenberg

923 F.3d 1309

UNITED STATES of America, Plaintiff-Appellee,

v.David ROTHENBERG, Defendant-Appellant.

No. 17-12349

United States Court of Appeals, Eleventh Circuit.

May 8, 2019

Tonya R. Long, Assistant U.S. Attorney, Jane Mackenzie Duane, Duane Mackenzie, Emily M. Smachetti, U.S. Attorney Service - Southern District of Florida, U.S. Attorney Service - SFL, MIAMI, FL, for Plaintiff-Appellee.

Andrew L. Adler, Jan Christopher Smith, II, Federal Public Defender's Office, FORT LAUDERDALE, FL, Michael Caruso, Federal Public Defender, Federal Public Defender's Office, MIAMI, FL, for Defendant-Appellant.

Before ED CARNES, Chief Judge, and ROSENBAUM and HULL, Circuit Judges.

HULL, Circuit Judge:

After his guilty plea to possession of child pornography, David Rothenberg appeals from the district court’s restitution order requiring him to pay a total of $142,600 in restitution to nine victims depicted in the images of child pornography that he possessed. Section 2259 mandates that district courts order defendants "to pay the victim ... the full amount of the victim’s losses" as determined by the court. 18 U.S.C. § 2259. This case involves the question of how to calculate the amount of restitution a possessor of child pornography, like the defendant Rothenberg, must pay to a victim whose childhood sexual abuse appears in the pornographic images he possessed but did not create or distribute.

On appeal, Rothenberg argues that: (1) the district court’s restitution order is flawed as to all of the victims because it failed to calculate and then disaggregate the victim’s losses caused by the initial abuser, distributors, and other possessors from those caused by Rothenberg himself; and (2) as to eight of the victims, the restitution award is not supported by competent evidence. After review, and with the benefit of oral argument, we conclude that the district court was not required to calculate and disaggregate the victim’s losses in the manner Rothenberg suggests and that reliable evidence supports the restitution awards as to eight victims, but not as to one victim. We thus affirm the restitution amounts as to eight victims and vacate and remand as to one victim.

I. INDICTMENT AND GUILTY PLEA

Defendant Rothenberg used to be a lawyer, a fact he told an undercover officer in an internet chatroom called "daddaughtersex." Rothenberg also sent the officer videos of child pornography and bragged that he was sexually exploiting a young girl at his house. In 2016, local and federal law enforcement went to Rothenberg’s house and rescued the young girl, who confirmed that Rothenberg had engaged in sexual activity with her. The officers also found and seized Rothenberg’s laptop, which contained approximately 1,000 unique video and picture files of child pornography. Some of those images depicted prepubescent children under the age of 12, and some portrayed sadistic and masochistic conduct, such as the binding and gagging of minor children.

In 2016, a grand jury charged Rothenberg with: (1) four counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (Counts 1, 3, 4, and 5); (2) one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (Count 2); and (3) one count of possession of child pornography depicting a minor under the age of 12, in violation of 18 U.S.C. § 2252(a)(4)(B) & (b)(2) (Count 6). Pursuant to a written plea agreement, Rothenberg pled guilty to the possession offense in Count 6, and the government agreed to dismiss the receipt and distribution charges in Counts 1 through 5. The district court sentenced Rothenberg to 210 months’ imprisonment.

On appeal, Rothenberg does not challenge his guilty plea or sentence. Rather, Rothenberg challenges only the district court’s restitution order granting a total of $142,600 to nine victims, which consists of: (1) $10,000 to Sierra; (2) $3,000 to Jane; (3) $5,000 to Pia; (4) $5,000 to Mya; (5) $20,000 to Sarah; (6) $9,000 to Vicky; (7) $23,000 to Amy; (8) $42,600 to Jenny; and (9) $25,000 to Casseaopeia. We outline the thorough process the district court followed, the evidence submitted, and then the district court’s findings and conclusions.

II. RESTITUTION PROCEEDINGS

After sentencing, the district court considered restitution requests pursuant to 18 U.S.C. § 2259(a), which provides for mandatory restitution to child pornography victims. Generally, the process worked as follows. First, the government identified the individual victims depicted in the images of child pornography found on Rothenberg’s computer and notified them or their attorneys of the upcoming restitution hearing. Then a victim’s attorney submitted a restitution request and supporting documentation to the government. Next, the government determined whether to support that request or ask the district court for a different amount. Rothenberg could agree to the request, try to negotiate down with the government or the victim’s attorney, or challenge the request before the district court.

Eventually the government submitted restitution requests on behalf of ten victims, all of whom were identified in at least one of the images of child pornography from Rothenberg’s computer. One of the victims, "Angela," later withdrew her request, leaving nine requests at issue for the hearing.

A. Pre-Hearing Memoranda

Prior to the restitution hearing, both parties submitted lengthy memoranda addressing (1) how the restitution determination should be made, and (2) what the award should be for each victim. The government and Rothenberg agreed that the Supreme Court’s decision in Paroline v. United States, 572 U.S. 434, 134 S. Ct. 1710, 188 L.Ed.2d 714 (2014), governed how the restitution awards should be made, established a proximate cause requirement, and set forth a variety of factors for district courts to consider in determining the proper amount of restitution. Under Paroline’s proximate causation requirement, a defendant should pay restitution "in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses." Paroline, 572 U.S. at 458, 134 S. Ct. at 1727.

But the parties disagreed about how exactly to apply the Paroline factors and how to calculate and determine that amount. The government recognized that, under Paroline, the district court must impose restitution in an amount that reflects the particular defendant’s relative role in the continuing traffic in the child pornography images of the victim. The government proposed that the district court make that calculation by using a variation of what is known as the "1/n method," whereby the court would divide the total amount of each victim’s losses by the number of defendants, across multiple prosecutions, who had been ordered to pay restitution to the victim. The government submitted that this method would provide the district court a starting point from which to exercise its discretion in determining the appropriate amount of restitution vis-à-vis Rothenberg, as only a possessor of images of child pornography.

Rothenberg argued, by contrast, that the starting point should be "apportionment between the original abuser of the child, versus the distributor, and later, possessor of the pornography," which Rothenberg referred to as "disaggregation." Rothenberg asserted that this disaggregation requires two steps: first, the district court must separate the harm caused by the original abuser from that caused by later distributors and possessors; and second, the district court must separate the harm caused by the defendant from that caused by other distributors or possessors.

Below, we detail for each victim (1) the victim’s restitution request and supporting evidence, (2) the government’s position, and then (3) Rothenberg’s position.

B. Sierra

Sierra submitted a restitution request for $10,000. In support of her request, Sierra submitted a medical letter from Dr. Sharon W. Cooper, a forensic pediatrician, based on her December 2015 evaluation of Sierra. Dr. Cooper explained that victims of child pornography can experience physical, emotional, and spiritual issues as a result of their online exploitation, including immunological problems, posttraumatic stress disorder ("PTSD"), anxiety, depression, suicidal ideation, and feelings of hopelessness. Dr. Cooper noted that "[w]hen images are known to be in distribution, the pre-existing dysfunction caused by the initial abuse is typically worsened, since children remain at risk for further victimization by the ongoing downloading, trading and possession of their images."

With respect to Sierra specifically, Dr. Cooper stated that Sierra’s medical evaluation showed she suffered from worsening insomnia, attention deficit hyperactivity disorder ("ADHD"), depression, suicidal ideation, PTSD, and mood lability. Dr. Cooper noted that, despite being on five different medications, Sierra’s condition remained unstable and she recently required emergency treatment for suicidality. Dr. Cooper opined that "[t]he ongoing presence of trafficking in images [of Sierra] on the Internet constitutes a significant aspect of psychological maltreatment that will add on to the initial adversities" caused by the original abuse. Based on Sierra’s past medical history, the documented adversities faced by victims of child sexual abuse and child pornography offenses, and Sierra’s present medical symptoms, Dr. Cooper estimated a total cost of $661,453.00 for Sierra’s future medical care.

Sierra’s counsel also submitted a declaration of attorney’s fees, indicating Sierra had incurred nearly $5,000 in attorney’s fees in connection with this case.

The government supported Sierra’s $10,000 restitution request. The government observed that four other defendants had been ordered to pay restitution to victims in the same series of images as Sierra. Those awards were for $4,000, $1,000, $9,000, and $2,000.

Rothenberg opposed Sierra’s restitution request....