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United States v. Pearson

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


July 29, 2009

UNITED STATES OF AMERICA,
v.
ABRAHAM PEARSON, DEFENDANT.

The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge

DECISION & ORDER

I. INTRODUCTION

Defendant was convicted upon his guilty plea of multiple counts of producing, transporting, receiving, and possessing child pornography. This Court sentenced him, inter alia , to 15 years' incarceration and to pay restitution to the child victims of his crimes in the amount of $974,902.00. On appeal, the United States Court of Appeals for the Second Circuit affirmed the conviction and sentence with the exception of the restitution order. See United States v. Pearson, --- F.3d ----, 2009 WL 1886055 (2d Cir. July 02, 2009)( per curiam ). The Court of Appeals vacated that part of judgment ordering restitution and remanded the matter "simply to secure a more thorough explanation from the district court as to the basis for its restitution determination." Id. at * 5; see id. at * 6 (The matter is remanded "for the limited purpose of ordering restitution consistent with this opinion.").

This Decision and Order constitutes the Court's explanation as to the basis of the restitution order.

II. DISCUSSION

a. Background

Defendant's crimes involved two minor female victims, Jane Doe # 1 and Jane Doe # 2. Defendant subjected these victims, ages seventeen and fifteen, respectively, to repeated and various forms of sexual contact, including sadistic or masochistic sexual conduct, that he video-taped and photographed. Defendant also shared the images with a friend over the Internet. In his Plea Agreement, Defendant agreed, inter alia , "to pay restitution in full to any person who would qualify as a victim, under 18 U.S.C. § 3663 or § 3663A, of [Defendant's] offenses." Plea Agreement ¶ 1(c). The government contended that both victims suffered traumatic psychological injuries from Defendant's crimes and that, as a result, both victims required intensive and long term psychological treatment regimens. The government sought restitution in an amount sufficient to pay for the treatment regimens that each victim would likely require in the future.

In support of its restitution request, the government retained the services of Dr. Kenneth Reagles, the owner of K.W. Reagles & Associates, L.L.C., a company that provides "[f]orensic vocational, rehabilitation, and economic consultation services, as well as employee assistance, case management, and psychological counseling services." Dr. Reagles prepared thorough reports for both victims wherein he reviewed the victims' familial histories, their education and work histories, and their prior medical histories. Dr. Reagles also interviewed the victims and reviewed their mental health diagnoses and treatments received since their victimizations by Defendant. Dr. Reagles reported his findings and drew opinions as to the victims' needs for future mental health related goods and services. Finally, Dr. Reagles calculated the costs of the future mental health related goods and services that, he opined, each victim would require as a result of Defendant's crimes. While Defendant provided a psychologist's report addressing the potential that Defendant would re-offend in the future, Defendant did not provide an expert report addressed to Dr. Reagles' conclusions or otherwise challenge those conclusions other than to assert that they were based on mere speculation.

The Court also reviewed victim impact statements and heard from the mothers of both victims at the sentencing hearing. Both mothers provided compelling statements of the immense effects that Defendant's crimes had upon the mental healths of their daughters, and the psychological changes exhibited by each girl since their involvement with Defendant.*fn1 *fn2

b. Restitution for Future Medical Services

The Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259, provides that "[an] order of restitution under this section shall direct the defendant to pay the victim . . . the full amount of the victim's losses as [caused by Defendant's crime] . . . [which] includes any costs incurred by the victim for . . . medical services relating to physical, psychiatric, or psychological care." On the appeal in this matter, the Second Circuit held that "a restitution order pursuant to 18 U.S.C. § 2259 may include restitution for estimated future medical expenses" when the amount is reasonably ascertainable. Pearson, 2009 WL 1886055, at *5.

Determining the nature and cost of the mental health interventions that a victim of a child sexual abuse crime will need in the future is no easy matter. However, other circuits have noted that 18 U.S.C. § 2259 is "'phrased in generous terms[] in order to compensate the victims of sexual abuse for the care required to address the long term effects of their abuse.'" United States v. Doe, 488 F.3d 1154, 1159-60 (9 th Cir. 2007)(quoting United States v. Laney, 189 F.3d 954, 966 (9th Cir. 1999)). Thus, although the breadth of the statutory language is circumscribed by the requirement of "a causal connection between the offense of conviction and the victim's harm," [Laney, 189 F.3d at 965], we and the other circuits addressing restitution orders under Section 2259 have not imposed a requirement of causation approaching mathematical precision. Id.

Rather, the courts that have addressed restitution for future medical costs for child sexual abuse crime victims have "recognized that there might be cases where the amount of future counseling expenses would be too difficult to ascertain to justify an award, but [have] found [a] district court's 'estimate' of the amount the victim was likely to spend to be justified." Id. (citations omitted). In estimating such awards, the courts have been "mindful of the inherent uncertainties attendant upon an award of prospective damages," United States v. Danser, 270 F.3d 451, 455 n. 5 (7th Cir. 2001), but have also recognized the "strong Congressional intent behind section 2259" which is to allow the victims of child sexual abuse crimes to receive the counseling and treatment that they require. Id. at 455.

Consequently, the courts have allowed "a district court significant discretion to make a reasonable estimate of an amount that reflects the full loss to the victim." Doe, 488 F.3d at 1160 (citing Danser, 270 F.3d at 455 and United States v. Julian, 242 F.3d 1245, 1247 (10th Cir. 2001)). Restitution is allowed in such circumstances even where there are pre-existing psychological problems but where there is a basis to conclude that the defendant's crime is a substantial cause of the need for future treatment. See United States v. Crandon, 173 F.3d 122, 126 (3d Cir.1999)("[I]t was entirely reasonable for the District Court to conclude that the additional strain or trauma stemming from [defendant's] actions was a substantial factor in causing the ultimate loss.").

Thus, in every circuit to consider the causation requirement of Section 2259, a rule of reasonableness is applied. We will uphold an award of restitution under Section 2259 if the district court is able to estimate, based upon facts in the record, the amount of victim's loss with some reasonable certainty. Doe, 488 F.3d at 1160.

The Court applies this rule of reasonableness in determining the "estimated future medical expenses" that each victim will incur as a result of Defendant's crimes. Pearson, 2009 WL 1886055, at *5.*fn3

c. Jane Doe # 1

The Court has thoroughly reviewed all of the information presented to it, including Dr. Reagles's report and Jane Doe # 1's mother's statement, in reaching a restitution figure for her. The Court first addresses Dr. Reagles's report.

Many years prior to her involvement with Defendant, Jane Doe # 1 was labeled as learning disabled at school,*fn4 and diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), anxiety, and an unspecified mood disorder that was manifested as depression and defiance. Reagles's Jane Doe # 1 Report, pp. 6-7. Her ADHD, anxiety, and unspecified mood disorder were treated with prescription medications, and she received counseling from psychologists, school social workers, and therapists for a number of years prior to her involvement with Defendant. Id. Approximately four month before her involvement with Defendant, Jane Doe # 1 was diagnosed with a reactive attachment disorder and she embarked on a regimen of 12 two-hour counseling sessions that was ongoing while she was being victimized by Defendant. Id.; see also fn. 2, supra .

Nevertheless, as reported by Dr. Reagles and by her mother, Jane Doe # 1's need for mental health interventions drastically increased following her victimization by Defendant. See Reagles's Jane Doe # 1 Report, pp. 7-9; fn. 2, supra . This included several mental health hospitalizations, an episode of self-mutilation, and a suicide attempt. See Reagles's Jane Doe # 1 Report, pp. 7-9. Dr. Reagles addressed the "competing factors" for Jane Doe # 1's post-victimization "psychiatric disablement" and concluded that "her pre-existing need for counseling and medications pales as a competing alternative cause of her present and ongoing emotional and behavioral reactions." Reagles's Jane Doe # 1 Report, p. 10.

Upon review of the information available to him including consultation with current treatment providers, and based upon his own education, training, and experience in the fields of psychology and rehabilitation,*fn5 Dr. Reagles opined that, as a result of her victimization by Defendant, Jane Doe # 1 would need periodic psychiatric evaluations (four times a year) and a regimen of medications for the rest of her life, estimated to be a period of 39 years; personal counseling once a week for the next seven years and twelve to sixteen times a year for the twenty-seven years after that; and group counseling twice a month for five years.

Pearson, 2009 WL 1886055, at *2, n. 1 (citations to record omitted). Dr. Reagles estimated that this mental health services regimen, including medications, will cost $2,002,732.00.*fn6

Based upon the information before the Court, there is no doubt in the Court's mind that: (1) Defendant's crimes are the primary causative factor for Jane Doe # 1's need for the drastically increased mental health interventions required after her victimization by Defendant; and (2) Jane Doe # 1 will need these mental health interventions well into the future. See Pearson, 2009 WL 1886055, at * 5 ("the record contains evidence of the victims' need for long term counseling"). Thus, the restitution order will include the future medical costs that Jane Doe # 1 will likely incur as a result of Defendant's crimes.

The Court accepts and credits Dr. Reagles's conclusions that Jane Doe # 1 will need the components of the care plan that he set forth in his report, including the need for periodic evaluations and the recommended therapeutic modalities (including individual and group therapies, and medications). See Reagles' Jane Doe # 1 Report, pp. 12-16. However, because Jane Doe # 1 presented with some mental health issues prior to her involvement with Defendant, the Court cannot conclude that the full extent of the mental health interventions she now requires are causally related to Defendant's crimes. While the Court does not disagree with Dr. Reagles's assessment that Jane Doe # 1's psychiatric disablement is primarily caused by her victimization by Defendant, it does not find that the full of extent of her losses are caused by Defendant's crimes.

Further, the information before the Court indicates that, although she was subjected to an extremely traumatic experience that has left an indelible mark requiring long-term mental health treatment, Jane Doe # 1 has already made some progress, albeit minimal, through her current treatment regimen. Despite that Jane Doe # 1 suffers from the psychological impact of her victimization, she has been able to enter the work force, marry, and have and care for children. Based upon the progress that Jane Doe # 1 has experienced through treatment, the Court cannot conclude that all of the mental health treatments, or the full length of all such treatments, predicted by Dr. Reagles will be necessary.

The Court concludes, based upon the constellation of factors before it, that, as a result of Defendant's crimes, Jane Doe # 1's losses will amount to $667,577.00. This number constitutes the costs of one-third of the mental health interventions recommended by Dr. Reagles, and factors in Jane Doe #1's pre-existing conditions and the likelihood, based upon her progress to date, that the necessary length and intensity of the treatment regimen will be less than that recommended by Dr. Reagles. Accordingly, restitution for Jane Doe # 1 is set at $667,577.00 pursuant to 18 U.S.C. § 2259.

d. Jane Doe # 2

Like with Jane Doe # 1, the Court has thoroughly reviewed all of the information presented to it, including Dr. Reagles's report and Jane Doe # 2's mother's statement, in reaching a restitution figure for Jane Doe # 2. The Court first addresses Dr. Reagles's report.

Dr. Reagles reported that more than a year before her contact with Defendant, Jane Doe # 2 was diagnosed with major depression without psychosis and an oppositional and defiant disorder, and prescribed certain medications. Reagles's Jane Doe # 2 Report, p. 2. Moreover, in the one-year period immediately preceding her involvement with Defendant, Jane Doe # 2 received inpatient and emergency room treatment on several occasions, and participated in psychotherapy sessions. Id. pp. 2-3. However, Jane Doe # 2's need for mental health interventions has drastically increased since her interactions with Defendant. See id. pp. 3-6; fn. 1, supra . Since her victimization by Defendant, Jane Doe # 2 has been diagnosed with a post-traumatic stress disorder, a panic and anxiety disorder, depression without psychosis, and has been prescribed numerous medications. Reagles's Jane Doe # 2 Report, pp. 3-4. After her victimization, Jane Doe # 2 went through a period of self-mutilation, experienced flashbacks that disrupted her sleep and caused her to experience chronic fatigue, id. p. 3, and attempted suicide. See fn. 1, supra.

Dr. Reagles addressed the "potentially competing causative factors" for Jane Doe # 2's post-victimization "psychiatric disablement" and concluded that her "pre-existing need for counseling and medications are a minimal factor as a competing alternative cause for her ongoing emotional and behavioral reactions." Id., p. 5. Upon review of the information available to him including consultation with current treatment providers, and based upon his own education, training, and experience in the fields of psychology and rehabilitation, Dr. Reagles opined that, as a result of her victimization by Defendant, Jane Doe # 2 would need periodic psychiatric evaluations (four times a year) and a regimen of medications for the rest of her life, estimated to be a period of 42.2 years; personal counseling once a week for the next three years and eight to ten times a year for rest of her life after that; and group counseling twice a month for four years.

Pearson, 2009 WL 1886055, at *2, n. 1 (citations to record omitted). Dr. Reagles estimated these services would cost $921,976.00.*fn7

Dr. Reagles and Jane Doe # 2's mother presented a compelling picture of an emotionally frail young woman who has grappled with severe emotional and psychological issues since her involvement with Defendant. Like with Jane Doe # 1, there is no doubt in the Court's mind that: (1) Defendant's crimes are the primary causative factor for Jane Doe # 2's need for the drastically increased mental health interventions she now requires; and (2) Jane Doe # 2 will need these mental health interventions well into the future. The Court accepts and credits Dr. Reagles's conclusions that Jane Doe # 2 will need the components of the care plan that he set forth in his report, including the need for periodic evaluations and the recommended therapeutic modalities (which involve individual and group therapies, and medications). See Reagles's Jane Doe # 2 Report, pp. 6-11. Nevertheless, because she presented with some mental health issues before her involvement with Defendant, the Court cannot conclude that the full extent of the necessary mental health interventions are proximately caused by Defendant's crimes.

Also like Jane Doe # 1, Jane Doe # 2 has made moderate progress through her mental health treatment in an attempt to ameliorate the effects of her sexual exploitation and to restore some semblance of normality to her life. Jane Doe # 2 has been able, with certain accommodations, to obtain her New York State High School General Equivalency Diploma ("GED");*fn8 to engage in full time employment; and attend community college on a full-time basis. Inasmuch as Jane Doe # 2 has made some progress through her mental health interventions since being victimized by Defendant, and is likely to make more, see Reagles Jane Doe # 2 Report, p. 5 (opining that Jane Doe # 2 is "a very determined young woman who, with proper treatment and support, has a good chance of overcoming the sexual abuse and trauma" she has been subjected to by Defendant), the Court finds that the necessary length and intensity of Jane Doe # 2's treatment regimen will be less than recommended by Dr. Reagles.

The Court concludes, based upon the constellation of factors before it, that, as a result of Defendant's crimes, Jane Doe # 2's losses will amount to $307,325.00. This number constitutes one-third of the costs of the mental health interventions recommended by Dr. Reagles, and factors in Jane Doe # 2's pre-existing conditions and the likelihood, based upon her progress to date, that the necessary length and intensity of the treatment regimen will be less than that recommended by Dr. Reagles. Accordingly, restitution for Jane Doe # 2 is set at $307,325.00 pursuant to 18 U.S.C. § 2259.

III. CONCLUSION

For the reasons set forth above, the Court calculates Defendant's restitution to Jane Doe # 1 to be $667,577.00, and Defendant's restitution to Jane Doe # 2 to be $307,325.00, for total restitution in the amount of $974,902.00. The Clerk is directed to enter an Amended Judgment, addressed to restitution only, consistent with this Decision and Order. All other terms of the original Judgment shall remain the same. The Court directs the Clerk of the Court to append this Decision and Order to the Amended Judgment and distribute it to the appropriate parties.

IT IS SO ORDERED


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