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An Individual Known to the Defendant As 08mist096.jpg and 08mist067.jpg v. Falso

December 9, 2009

AN INDIVIDUAL KNOWN TO THE DEFENDANT AS 08MIST096.JPG AND 08MIST067.JPG, PLAINTIFF,
v.
JON DAVID FALSO, DEFENDANT.



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

DECISION and ORDER

Plaintiff commenced the instant action pursuant to 18 U.S.C. §§ 2252A(f) and 2255(a) arising out of Defendant's conviction for violating 18 U.S.C. § 2252A(a)(2)(A) and (B) and 18 U.S.C. § 2256. Presently before the Court is Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 on the ground that § 2255A is unconstitutional because it violates the Double Jeopardy Clause and his right to due process of law.*fn1

I. FACTS

On June 8, 2005, Defendant was arrested for violating federal child pornography statutes. Among the images in Defendant's possession at the time of his arrest were two images of Plaintiff. On June 16, 2005, Defendant was indicted for 222 counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (B) and 18 U.S.C. § 2256.

The pictures of Plaintiff were included in the charges. In February 2006, Defendant pleaded guilty to all counts in the Indictment. Defendant was sentenced to 30 years' imprisonment. Defendant also entered into an in rem Stipulated Preliminary Order of Forfeiture whereby he was to surrender real property (or the cash equivalent of $62,000) and certain personal property involved in the viewing of the pornography.

In August 2008, Plaintiff commenced the instant action pursuant to 18 U.S.C. § 2252A(f) and 18 U.S.C. § 2255(a). Presently before the Court is Defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56 seeking dismissal of the claims pursuant to 18 U.S.C. § 2255(a) on the ground that the statute violates the Double Jeopardy Clause, the Seventh Amendment, and due process of law. Plaintiff opposes the motion.

II. DISCUSSION

Section 2255(a) provides as follows:

Any person who, while a minor, was a victim of a violation of section 2241(c), 2242, 2243, 2251, 2251A, 2252, 2252A, 2260, 2421, 2422, or 2423 of this title and who suffers personal injury as a result of such violation, regardless of whether the injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable attorney's fee. Any person as described in the preceding sentence shall be deemed to have sustained damages of no less than $150,000 in value.

Defendant contends that the minimum statutory damages in the amount of $150,000 that may be imposed after his criminal conviction and in rem forfeiture constitutes a violation of the Double Jeopardy Clause. Defendant argues that this additional amount of damages is punitive in nature and that Plaintiff retains an alternative adequate remedy to recover actual damages pursuant to 18 U.S.C. § 2252A(f). Plaintiff further maintains that the minimum mandatory damages of $150,000 violates the Seventh Amendment right to a jury trial and to due process of law.

a. Double Jeopardy

The first issue is whether the statute permitting an award of damages (18 U.S.C. § 2255(a)) violates the Double Jeopardy clause. The Supreme Court has explained that:

The Double Jeopardy Clause provides that no "person [shall] be subject for the same offence to be twice put in jeopardy of life or limb." We have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, "'in common parlance,'" be described as punishment. United States ex rel. Marcus v. Hess, 317 U.S. 537, 549, 63 S.Ct. 379, 387, 87 L.Ed. 443 (1943) (quoting Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852)). The Clause protects only against the imposition of multiple criminal punishments for the same offense, Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938); see also Hess, supra, at 548-549, 63 S.Ct., at 386-387 ("Only" "criminal punishment" "subject[s] the defendant to 'jeopardy' within the constitutional meaning"); Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975) ("In the constitutional sense, ...


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