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