United States of America v. Richard Charles Saari

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RICHARD CHARLES SAARI,
Defendant-Appellant.
No. 17-30074
D.C. No. 6:16-cr-00001-CCL-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Argued and Submitted August 30, 2018
Seattle, Washington
Before: McKEOWN, W. FLETCHER, and GOULD, Circuit Judges.
Richard Saari pled guilty to receipt of child pornography, 18 U.S.C.
§ 2252(a)(2). He was ordered to pay restitution to the victim’s mother pursuant to
18 U.S.C. § 2259 and a $5,000 assessment under the Justice for Victims of
Trafficking Act (JVTA). Saari argues that the district court’s restitution award was
FILED
SEP 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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in error because there is no evidence that his conduct was the direct or proximate
cause of the mother’s losses. He also asks the court to reverse the district court’s
finding that he is non-indigent for purposes of the JVTA.
For the following reasons, we reverse the District Court’s restitution
calculation as inconsistent with the apportionment analysis adopted in Paroline v.
United States, 572 U.S. 434 (2014), and remand for further proceedings consistent
with that analysis. We affirm the District Court’s finding of indigency.
Under 18 U.S.C. § 2259, persons who commit certain sex offenses are liable
for the “full amount of the victim’s losses,” including costs incurred by “the legal
guardian of [a minor] victim” for her own “physical, psychiatric, or psychological
care.” 18 U.S.C. § 2259(a), (b)(3)(A), (c). Here, the victim’s mother requested
restitution in the amount of $20,857.32 for past and future therapy costs. She
reached that figure by adding $3,757.32 in past medical and counseling costs to
projected medical and counseling expenses over a five-year period—the amount of
future therapy recommended by her therapist. She calculated her future counseling
costs based solely on her $60/week co-pay, not the full cost of the future
counseling session. The district court found that “[t]he mother did have a pre-
existing condition. But that has been exacerbated by the defendant’s criminal
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conduct.” It then awarded the victim’s mother the full $20,857.32 she sought in
restitution.
In Paroline v. United States, 572 U.S. 434 (2014), the Supreme Court held
that “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.” Id. at 458. Paroline was concerned with the exacerbated harm
caused by multiple viewers of the same pornographic image. Id. at 441. But the
same principle applies here where Saari’s actions have exacerbated the mother’s
pre-existing trauma. The District Court recognized that Saari’s conduct only
exacerbated a pre-existing condition, but it did not engage in the apportionment
analysis that Paroline requires. On remand, the District Court should “assess as
best it can from available evidence the significance of the individual defendant’s
conduct in light of the broader causal process that produced the victim’s losses,”
id. at 459, and award a proportional amount in restitution. Section 2259(b)(1)
requires a court to order restitution for “the full amount of the victim’s losses.”
(emphasis added). The District Court thus may consider the full cost of the
mother’s future counseling, and not just her future co-pays, when calculating her
general losses as part of the apportionment analysis.
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With regard to the JVTA assessment, Saari has provided no credible
argument that the District Court’s finding of indigence was clearly erroneous or
that its method of determining indigence was legally insufficient.
We VACATE the District Court’s restitution award and REMAND for
further proceedings consistent with this disposition. We AFFIRM the District
Court’s judgment as to the $5,000 JVTA award.
VACATED and REMANDED in part. AFFIRMED in part.
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