USA v. Block

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA, CR. 17-50068-JLV
Plaintiff,
ORDER
vs.
WAYLEN SHERMAN BLOCK, n , n
Defendant.
INTRODUCTION
Defendant Waylen Sherman Block pled guilty to one count of receipt of
child pornography by a previous sex offender, in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and 2252A(b)(l). (Docket 64). The government moved the
court to order defendant to pay $47,000 to six victims of child pornography.
(Docket 68). The court sentenced defendant on August 10, 2018, but deferred
its restitution order pending supplemental briefing regarding the impact of
defendant's alleged indigence on the mandatory restitution. (Dockets 78 65 81),
The court denied the government's restitution request because it "failed to
provide any evidence demonstrating defendant possessed images of these
specific named victims." (Docket 88 at p. 6). The government moved for
reconsideration of the court's ruling in light of evidence it provided with the
motion showing defendant possessed images of the named victims. (Docket 91).
Defendant asserts the new government evidence is insufficient to show he
possessed images of the named victims and that, even if he did possess such
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images, his role in their loss is attenuated. (Docket 97). For the reasons given
below, the court grants the government's motion aiid orders defendant to pay.
restitution to his victims. n ^
ANALYSIS
I. Impact of New Child Pornography Restitution Law
On December 7, 2018, the President signed into law the Amy, Vicky, and
Andy Child Pornography Victim Assistance Act of 2018 ("the Act"). Amy, Vicky,
and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. 115-299,
132 Stat. 4383 (Dec. 7, 2018). The Act revises 18 U.S.C. § 2259, the statute
under which the government seeks restitution from defendant. Under the Act,
the court must "determine the full amount of the victim's losses that were
incurred or are reasonably projected to be incurred by the victim as a result of
the trafficking in child pornography depicting the victim." 18 U.S.C.
§ 2259(b)(2)(A). After making that determination, the court must "order
restitution in an amount that reflects the defendant's relative role in the causal
process that underlies the victim's losses, but which is no less than $3,000." ^
at § 2259(b)(2)(B). As it relates to the statute of conviction here, the Act caps
restitution at $35,000. at § 2259A(a)(2). The Act supersedes the Supreme
Court's interpretation of§ 2259 requiring district courts to award restitution
commensurate with the defendant's causal role in the victim's losses without any
mandatory amount. Paroline v. United States. 572 U.S. 434, 458 (2014).
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Because the Act became law during the restitution motion's pendency, the
court must determine whether the Act applies to the motion—that is, whether
the Act applies retroactively. The "sense of Congress" is that the Act is not
retroactive. 18 U.S.C. § 2259B(d). One appellate court has declined to apply
the Act retroactively. United States v. MonzeL 930 F.3d 470, 476 n.l (D.C. Cir.
2019). The court concludes the Act does not govern defendant's case.
The Ex Post Facto Clause of the Constitution, which forbids Congress from
enacting any "law that changes the punishment, and inflicts a greater
punishment, than the law annexed to the crime, when committed," would seem
to be a logical starting point for this inquiry. Peugh v. United States, 569 U.S.
530', 532-33 (2013) fouoting Calder v. Bull 3 Dall. 386, 390 (1798)). There is a
conflict in controlling precedent of the United States Court of Appeals for the
Eighth Circuit on the question of whether restitution is a criminal penalty or a
civil remedy. In 2002, Judge Bye wrote a unanimous panel opinion holding
"restitution is a criminal 'penalty.'" United States v. Ross, 279 F.3d 600,609
(8th Cir. 2002). As far as the court can determine, this holding has never been
expressly overruled.
However, in United States v. Carruth. the Eighth Circuit held restitution
"is essentially a civil remedy created by Congress and incorporated into criminal
proceedings for reasons of economy and practicality." 418 F.3d 900, 904
(2005). In dissent, Judge Bye again stated restitution is a criminal penalty. I^
at 906. However, neither Judge Bye nor the majority analyzed this question or
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acknowledged the conflict. The Eighth Circuit has since followed the Carmth
majority in labeling restitution as a civil penalty.^ United States v.
Thunderhawk. 799 F.3d 1203, 1209 (8th Cir. 2015).
When confronted with an intracircuit split in authority, courts are directed
to follow the earliest panel opinion "as it should have controlled the subsequent
panels that created the conflicf T.L. ex rel. Ingram v. United States, 443 F.3d
956, 960 (8th Cir. 2006). If restitution is a criminal penalty, as articulated in
Ross and earlier cases, the Ex Post Facto Clause governs and forbids the court
from changing the punishment applicable to defendant by imposing a restitution
floor. The Act sets a $3j000 floor for restitution awards, while the Supreme
Court's previously governing interpretation of the restitution statute sets no
such floor. In fact, the court has awarded restitution in amounts under $3,000
in prior child pornography cases. See United States v. Haggerty, CR. 14-50046,
(Docket 217)(D.S.D. Oct. 15, 2018). The Ex Post Facto Clause prohibits
applying the Act retroactively.
Interpreting restitution as a civil penalty leads to the same result. "[T]he
presumption against retroactive legislation is deeply rooted in ourjurisprudence,
and embodies a legal doctrine centuries older than our Republic." Landgraf v.
USI Film Prods.. 511 U.S. 244. 265(1994).
iThe Southern Division of this court held that restitution "is criminal
punishment, not a civil sanction" in an Ex Post Facto Clause analysis. United
States V. Johnson, 145 F. Supp. Sd 862,866(D.S.D. 2015)(citing Ross, 279 F.3d
at 609).
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A two-step test determines whether a statute may be applied
retroactively. At the first step, we discern whether Congress has
expressly prescribed the statute's intended reach. If so, our inquiry
ends. At the second step, we examine whether the statute would •
have a retroactive effect; that is, whether it would impair rights a
party possessed when he acted, increase a party's liability for past
conduct, or impose new duties with respect to transactions already
completed. If the statute would do any of these things, the
presumption is that, the statute does not govern, absent clear
congressional intent otherwise.
Molina Jerez v. Holder,625 F.3d 1058, 1069 (8th Cir. 2010)(internal quotations
and citations omitted).
As to the first step of the inquiry, the court notes Congress expressed its
sense that the Act not be applied retroactively. 18 U.S.C. § 2259B(d).
However, the court cannot determine whether the sense of Congress is too
indefinite to count as an express prescription against retroactivity and proceeds
to step two of the inquiry. Because the Act would "increase [defendant's]
liability for past conduct," the court holds the Act "would have a retroactive
effect" were the court to apply it to the government's restitution motion. Molina
Jerez, 625 F.3d at 1069. The presumption against retroactive legislation thus
governs. The court declines to apply the Act to the pending motion.
II. Government's Motion for Restitution
At the outset, the court must reject the government's argument that it bore
no responsibility to prove restitution related facts. The government asserted in
its motion asking the court to reconsider its prior restitution denial that it is
"unfair" to require it to prove defendant possessed images of the named victims.
(Docket 91 at p. 2). In the government's view, it did not have to prove any
5 n n
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connection between defendant and the named victims because the topic had not
arisen as a disputed matter in the case.2 But it is the government's burden
to prove "the amount of restitution[.]" United States v. Miller, 419 F.3d 791,792
(8th Cir. 2005). It is in no way unfair to hold the government to its burden,
regardless of whether pr not defendant's possession of images of specific named
victims had previously arisen as an issue in the case.
The most cursory review of the applicable law on this topic would have
revealed the necessity of showing, at the veiy least, defendant possessed images
of the named victims. , Governing precedent requires an analysis of defendant's
connection to the victim's losses. See Section II.A, infra. This analysis is
impossible to undertake without even knowing how many images of the named
victims defendant possessed. The record now provides sufficient information to
determine appropriate restitution amounts, if only barely. However, the court
concludes the government's wholesale outsourcing of the.crucial task of
^The government also asserts defendant did not contest he possessed
images of the named victims because discovery materials demonstrated he
possessed those images. (Docket 91 at p. 2). The court has no access to
discovery materials unless they are filed on the record. The.government is
reminded the court cannot merely assume unproven facts impacting a
defendant's criminal punishment.
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substantiating defendant's role in the victims'losses to victims' counsel
approaches defaulting on its duty to prove restitution amounts.^
The government seeks $47,000 in restitution from defendant in payment
to six child pornography victims. (Docket 68). Specifically, the government
seeks $12,000 for Angela, $10,000 for Violet, the victim of the "At School" child,
pornography series, $10,000 for Lily, the victim of the "Vicky" series, and $5,000
each to Pia, Ava, and Mya, the victims of the "Sweet Sugar" series.'^ The
government filed voluminous documentation, compiled by victims' counsel, of
the harms suffered by each victim to justify its request. See Dockets 68-1 -
68-5. The government, arguing that defendant "both produced and distributed
images of child pornography[,]" suggests that an amount greater than $3,000 per
victim is appropriate. (Docket 83 at p.,3). Defendant argues the government
produced no evidence regarding the extent to which his conduct contributed "to
the proximate cause of each of the individual victim's losses[.]" (Docket 85 at
p. 2). In his latest briefing, the defendant maintains no restitution is
appropriate because of the lack of evidence connecting him to the victims. ,
(Docket 97 at p. 2).
^The court appreciates the insight victims' counsel provided with their
documentation. But that documentation, while extensively proving victims'
losses, does little to show defendant's causal role in those losses. That task is
best completed by government counsel which, unlike victims' counsel, has
actual knowledge of defendant's offense conduct.
"^Each of these names are pseudonyms for the actual victims.
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A. Legal standard^
"Under 18 U.S.C. § 2259(a), a district court shall order restitution for
offenses that involve the sexual exploitation of children and child pornography in
particular." United States v. Beckmann, 786 F.3d 672,682 fSth Cir. 2015).
"The government bears the burden of proving the amount of restitution based on
a preponderance of the evidence." United States v. Hoskins,876 F.3d 942, 945
(8th Cir. 2017). The court must order restitution under this statute "only to the
extent that the defendant's offense proximately caused the victim's losses."
Beckmann, 786 F.3d at 682. Losses a victim may have suffered include:
medical services relating to physical, psychiatric or psychological care; physical
and occupational therapy or rehabilitation; necessary transportation, temporary
housing and child care expenses; lost income; reasonable attorneys'fees, as well ,
as other costs incurred; and any other relevant losses incurred by the victim.
18 U.S.C. § 2259(c)(2). The court"may not decline to issue an order" for
restitution based on "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." 18 U.S.C. § 2259(b)(4).
"[B]ecause child pornography victims suffer 'continuing and grievous harm
as a result of knowing that a large, indeterminate number of individuals have
viewed and will in the future view images of the sexual abuse she [or he]
endured,' all persons who reproduce, distribute, or possess child pornography
^The case law cited here reflects judicial interpretation of § 2259 prior to
the Act's revisions.
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play a p^t in 'sustaining and aggravating this tragedy/" Beckmann,786 F.3d
at 682 (quoting Paraline, 572 U.S. at 457)(alterations omitted). "[E]ven mere
possessors of child pornography cause proximate harm to victims of child
pornography." Id. (citing Parpline, 572 U.S. at 456-57). The central "question
in these cases is determining the appropriate amount of restitution—i.e. how
much of the victim's losses are attributable to the defendant's conduct."
(emphasis in original).
The Paroline Court "found that § 2259.did not require but-for causation,
and that restitution could be awarded in an amount'that.comports with the
defendant's relative role in the causal process that underlies the victim's general
losses.'" Hoskins, 876 F.3d at 946 (quoting Paroline, 572 U.S. at 458). To
guide the district court's causal analysis, the Court explained:
There are a variety of factors district courts might consider in
determining a proper amount of restitution, and it is neither
necessary nor appropriate to prescribe a precise algorithm
for determining the proper restitution amount at this point in the
law's development. Doing so would unduly constrain the
decisionmakers closest to the facts of any given case. But district
courts might, as a starting point, determine the amount of the
victim's losses caused by the continuing traffic in the victim's
images . . . , 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.
Paroline. 572 U.S. at 459-60 (internal citation omitted). The factors Paroline
provided as guidance include:
1. the number of past criminal defendants found to have
contributed to the victim's general losses; '
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2. reasonable predictions of the number of future offenders-likely
to be caught and convicted for crimes contributing to the
victim's general losses;
3. any available and reasonably reliable estimate of the broader
number of offenders involved (most of whom will, of course,
never be caught or convicted);
4. whether the defendant reproduced or distributed images of
the victim;
5. whether the defendant had any connection to the initial
production of the images;
6. how many images of the victim the defendant possessed; and
7. other facts relevant to the defendant's relative causal role.
Id. at 460 (numbering added and spacing altered for readability). Emphasizing
"[t]hese factors need not be converted into a rigid formula," the Court stated they
should rather serve as rough guideposts for determining an amount
that fits the offense. The resulting amount fixed by the court would
be deemed the amount of the victim's general losses that were the
'proximate result of the offense'for purposes of§ 2259, and thus the
'full amount'of such losses that should be awarded.
Id,
B. Angela
The government seeks $12,000 in restitution for the victim Angela.
(Docket 68). This request is supported by documentation from Angela's
attorney. (Docket 68-1). Experts consulted by Angela's attorney estimate her
treatment needs will total between $183,000 and $293,000 over the next twenty
years and her projected loss of earning capacity totals $812,000. I^ at p. 36.
The attorney costs associated with receiving restitution from defendant would be
$4,625. I^ These costs total at least $999,625, using the lower estimate of
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Angela's treatment costs. Angela's attorney—and, apparently, the government,
which did not submit any justification of its own specifically as to Angela's
restitution request and appears to simply adopt the arguments of Angela's
attorney—contends $12,000 in restitution from defendant is appropriate as his
"relative causal role" in the harms done to Angela. ^ Neither Angela's
attorney nor the government provided any recent information concerning
whether other defendants with images of Angela have been ordered to pay
restitution, have paid restitution, or are.likely to pay restitution.^
Based on the documentation provided by Angela's attorney, the court finds
Angela's losses are as she alleges. Determining how much of Angela's losses
defendant proximately caused is a more difficult question. The parties agree
defendant possessed three images of Angela."^ (Dockets 91 at p. 2 85 97 at p. 2).
Neither party provides additional details about whether defendant further
distributed the images of Angela.
The government asserts defendant "produced and distributed images of
child pornography." (Docket 83 at p. 3). It asks for a higher restitution amount
based on these aggravating factors. Id. In his factual basis statement,
defendant admitted to reproducing child pornography by photographing his
^In 2014, Angela's mother stated she had received no restitution "from any
of the over 3,000" individuals possessing images of Angela. (Docket 68-1 at
p. 6).
"^In his brief, defendant first asserts "there is still no evidence that [he]
possessed images/videos of the claimed victims" but in the next paragraph
concedes he possessed the images asserted by the government. (Docket 97 at
p. 2).
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erect penis in front of an image of already-extant child pornography. (Docket 58
at p. 2). Defendant further admitted to distributing these new images. at
p. 3. However, the United States Probation Office noted in defendant's
presentence investigation report that the discovery in this case contained no
evidence corroborating that portion of the factual basis statement. (Docket 74
at 11 18).
Regardless of whether defendant produced or distributed child
pornography, the government produced no evidence linking these acts to Angela
or the other named victims. In the absence of that evidence, the court cannot
consider acts of production or distribution as a proximate cause of Angela's
harm. The court only considers how much harm defendant caused to Angela by
possessing three images of her. The number of images is also the only Paroline
factor the government or Angela's attorney addressed. Under these
circumstances, the court finds a restitution award of $1,250 is an appropriate
estimation of the harm defendant proximately caused to Angela by possessing
three images of her.
C. Violet
The government requests $10,000 in restitution for Violet, the victim
portrayed in the "At School" child pornography series. (Docket 68 at p. 1). The
government supported this request with documentation prepared by Violet's
attorney. (Docket 68-2)^ Violet's attorney estimates her total losses are
$794,118.35. at p. 7. This amount includes future counseling costs of
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$72,400 - $118,025, future medical care "attributable to image exploitation and
disaggregated from ordinary medical care" and $28,286.35 in attorney's fees and
costs related to collecting restitution. Id^ Violet's attorney provided extensive
documentation supporting these figures. Based on the documentation, the
court finds Violet's losses are as she alleges.
Again, the challenging question is how much of Violet's loss is attributable
to defendant. The parties agree defendant possessed one 20-second video of the
At School series. (Dockets 91 at p. 2,91-1 at p.6 & 97 at p. 2). As with Angela,
the government provided no, evidence linking defendant to reproducing child
pornography with or redistributing Violet's,image.
Violet's attorney notes that, as of May 16, 2018,88 restitution orders have
been,entered in Violet's favor. (Docket 68-2 at p. 7). Violet's attorney asserts
she does not know how many individuals possess her images or will possess her
images in future. The government likewise declined to elucidate these
Paroline factors. Violet's attorney stated defendant had no partin producing
the At School pornography series. Under these circumstances, the court
finds a restitution award of $1,000 is an appropriate estimation of the harm
defendant proximately caused to Violet by possessing one 20-second video of
her.
D. Lily
The government requests $10,000 in restitution for Lily, the victim .
portrayed in the "Vicky^' child pornography series. (Docket 68 at p. 1). The
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government.supported this request with documentation prepared by Lily's
attorney. (Dockets 68-3 85 68-4). Lily's attorney estimates her total loss is
$4,517,390.13 (Docket 68-3 at p. 3). This estimate includes $3,266,093 in
"disaggregated ... medical [expenses]," which are aggravated by the stress of her
victimization, $164,475 in future counseling expenses, $53,330 in educational
and vocational counseling needs 85 lost part-time income, $936,646 in lost past
and future earnings, and $96,846 in restitution collection expenses. at
pp. 3, 6-7). Lily's attorney provided extensive documentation supporting these
figures. Based on the documentation, the court finds Lily's losses are as she
alleges.
The court must next attempt to determine how much of Lily's loss can be
attributed to defendant. The parties agree defendant possessed one video of Lily
from the Vicky child pornography series. (Dockets 91 at p. 1 8b 97 at p. 2). The
record does not disclose the length of the video. Lily's counsel states Lily has
received $1,288,743.10 from 1043 restitution orders as of May 16, 2018.
(Docket 68-3 at p. 3). Eight hundred forty-one defendants have paid restitution
to Lily. Id^ at p. 12. Lily's attorney cannot estimate how many individuals have
viewed images of Lily, although she does allege the Vicky series is "one of the
most prolifically traded series." Id. at pp. 4, 12. Neither Lily's attorney nor the
government estimated how many individuals may possess images of Lily in the
future. The record contains no evidence that defendant reproduced or
redistributed child pornography depicting Lily. Under these circumstances, the
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court finds a restitution award of $1,000 is an appropriate estimation of the
harm defendant proximately caused to Lily by possessing one video of her.
B. Sweet Sugar
The government requests $5,000 in restitution for each of the three victims
of the "Sweet Sugar" child pornography series, who are named as Pia, Ava and
Mya. (Docket 68 at p. 2). The request is based on documentation provided by
the victims' attorney. (Docket 68-5). The victims' attorney estimates she has
expended $10,187.13 for the children in total. Id. at p. 4. A clinical
psychologist evaluated each of the victims and estimated their future counseling
expenses as totaling $91,900 for Pia and $94,800 for both Ava and Mya. at
pp. 23, 32 85 41. The victims' attorney did not document any other losses.
Based on the provided documentation, the court finds the victims' losses are as
they allege.
The court again must ascertain how much of the victims' loss defendant
caused. The victims' attorney states the victims have received restitution as
follows: $46,691.44 for Pia; $10,564.94 for Ava; and $9,300.22 for Mya. She
does not state how many defendants are paying restitution. Neither the victims'
attorney nor the government state how many defendants have been convicted of
viewing the victims'images, how many may be convicted in future, or how many
individuals in general may view the victims'images. Neither party alleges
defendant reproduced or redistributed images of these victims. The parties do
agree that defendant possessed four images and eight videos of the Sweet Sugar
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child pornography series. (Dockets 91 at p. 2, 91-l_at p. 7 85 97 at p. 2). The
record does not disclose which victim is portrayed in the images and videos.^
Under these circumstances, the.conrt finds a restitution award of $1,000
to each of the three Sweet Sugar victims is an appropriate estimation of the harm
defendant proximately caused to them by possessing four images and eight
videos of the Sweet Sugar series. The court makes this general award equal for
each victim because the government did not demonstrate whether one or more of
the victims appeared more frequently in the imagery defendant possessed.
ORDER
For the reasons given above, it is
ORDERED that the government's motion for reconsideration (Docket 91) is
granted.
IT IS FURTHER ORDERED that the court's prior order denying the
government's motion for restitution (Docket 88) is vacated.
IT IS FURTHER ORDERED that the government's motion for restitution
(Docket 68) is granted. The court orders defendant to pay restitution to his
victims as follows:
^In fact, the government produced no evidence demonstrating that each of
the three victims appear in the images and videos defendant possessed. The
record only demonstrates that defendant possessed imagery from the Sweet
Sugar child pornography series as a whole. The nature of the series and the
position of each individual victim within it is not explained. This is another
instance of the government failing to adequately prove crucial restitution related
facts.
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1. Defendant shall pay $1,250 in restitution to Angela. Payment shall
be made to Lenahan Law, P.L.L.C., F/B/O Angela, 2655 Villa Creek,
Suite 222, Dallas, TX 75234.
2. Defendant shall pay $1,000 in restitution to Violet. Payment shall
be made to Carol L. Hepburn in trust for Violet at 200 First Avenue
West, Suite 550, Seattle, WA 98119.
3. Defendant shall pay $1,000 in restitution to Lily. Payment shall be
made to Carol L. Hepburn in trust for Lily at 200 First Avenue West,
Suite 550, Seattle, WA 98119.
4. Defendant shall pay $1,000 in restitution to Pia, Ava, and Mya as
separate individuals. Payment shall be made to Deborah A. Bianco
in trust for Pia, Ava or Mya at 14535 Bellevue-Redmond Road, Suite
201, Bellevue, WA 98007.
IT IS FURTHER ORDERED that the United States Probation and Pretrial
Services Office shall prepare an amended judgment consistent with this order.
IT IS FURTHER ORDERED that the Clerk's Office shall provide a copy of
this order to the United States Probation and Pretrial Services Office.
Dated January 14, 2020.
BY THE COURT:
JEFRg^^t^: VIKEN
UNITED STATES DISTRICT JUDGE
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