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United States v. Aumais

January 13, 2010

UNITED STATES OF AMERICA
v.
GERALD AUMAIS, DEFENDANT.



The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge

REPORT-RECOMMENDATION AND ORDER

On February 4, 2009, defendant Gerald Aumais ("Aumais") pleaded guilty to both counts of an indictment alleging violations of 18 U.S.C. §§ 2252A(a)(1) and (5)(B), and 2256(8)(A) (transportation in foreign commerce and possession of child pornography).

Indictment (Docket No. 4); Docket entry dated 2/4/09. Before sentencing, the United States moved for an order directing Aumais to pay restitution and to bifurcate issues regarding restitution from sentencing. Gov't First Sentencing Mem. (Docket No. 18) at 6. "Amy," a pseudonym for one of the individuals depicted in the materials possessed by Aumais,*fn1 formally requested restitution from Aumais through her representative, James R. Marsh, Esq. Id. at 8; Presentence Report (PSR), Third Addendum.*fn2

The district court granted the request for bifurcation, sentenced Aumais on September 30, 2009 principally to 121 months imprisonment, and remanded Aumais to commence service of his sentence. Docket Nos. 33, 34. In a text order filed December 3, 2009, the district court referred the issues of restitution to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Docket entry dated 12/2/09.*fn3 An evidentiary hearing was held on December 22, 2009. Docket No. 47. At that hearing , the only witness to testify was Dr. Joyanna Silberg, Ph.D., a clinical psychologist who examined Amy. Id.

What follows are the findings of fact and conclusions of law on the government's motion. Based on those findings and conclusions, it is recommended that an order be entered directing Aumais to pay Amy $48,483 in restitution.

I. Background

On November 16, 2008, Aumais attempted to enter the United States from Canada in a vehicle at the Ft. Covington, New York Port of Entry. Aumais advised officials that he was a Canadian citizen bound for a motel on the nearby Akwesasne Mohawk Indian Reservation to conduct a one-week seminar. During the border inspection of Aumais' vehicle, seventy-eight DVDs were found bearing handwritten labels such as "Under 18," "School Girls," "Family Incest," and "Torture." Also found were two laptop computers, three thumbdrives, a small video recorder, and a digital camera. Compl. (Docket No. 1) at ¶¶ 6-9. Analysis of the images on the materials revealed over 2,000 still images and over 100 videos of a wide variety of child pornography. PSR at ¶ 8. Aumais acknowledged that the images were his and that he had obtained them by downloads from the Internet and by trading with other collectors. Id. at ¶ 7. Aumais was arrested, indicted, pleaded guilty, and was sentenced as indicated above.

Among the images in Aumais' collection were those of Amy. Now twenty, Amy was sexually abused by an uncle from ages four to eight. The abuse included images taken by the uncle of Amy naked and performing sexual acts with the uncle. Before his arrest and imprisonment, the uncle made the images available to others and the images were uploaded to the Internet. PSR, Second Addendum (Amy's Victim Impact Statement provided) (hereinafter "VIS"). Amy has suffered severe psychological trauma manifested in a variety of ways as the result of her uncle's conduct and contends that her injuries have been aggravated by the circulation of her images over the Internet and by other means. Id.

II. Discussion

The government moves on Amy's behalf, as does Amy on her own behalf through her representative, for an order pursuant to § 2259 directing Aumais to pay restitution to her in the amount of $3,367,854.00. See Gov't Second Sentencing Mem. (Docket No. 27) at 26-27. Section 2259 mandates that a court order restitution by a defendant to any victim for "the full amount of the victim's losses as determined by the court. . . ." 18 U.S.C. § 2259(b)(1). The section 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. Laney, 189 F.3d 954, 966 (9th Cir.1999); see also United States v. Julian, 242 F.3d 1245, 1247 (10th Cir. 2001) (noting that § 2259 and two companion restitution statutes are broader than § 3663A, the general restitution statute). An order of restitution is reviewed on appeal "deferentially" and will be reversed "only for abuse of discretion." United States v. Pearson, 570 F.3d 480, 486 (2d Cir. 2009).

The motions for restitution raise two essential questions for resolution: (1) Were the damages claimed by Amy caused by the conduct of Aumais; and (2) if so, to what amount of restitution is Amy entitled from Aumais? The government bears the burden of proof on both issues by a preponderance of the evidence. See United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999); United States v. Hicks, No. 1:09-cr-150, 2009 WL 4110260, at *1 (E.D. Va. Nov. 24, 2009); United States v. Rapplinger, No. 05-CR-49-LRR, 2007 WL 3285802, at *3 (N.D. Iowa Oct. 9, 2007); see also 18 U.S.C. § 3664(e).

A. Causation

Restitution to a victim of child pornography is mandated by 18 U.S.C. § 2259. Section 2259 defines as a "victim" entitled to restitution an "individual harmed as a result of a commission of a crime under this chapter . . . ." 18 U.S.C. § 2259(c) (emphasis added). The offenses to which Aumais pleaded guilty are both included in the chapter to which § 2259 applies. See 18 U.S.C. ch. 110 (including among its provisions both §§ 2252A and 2256, the offenses to which Aumais pleaded guilty). The threshold question presented, therefore, is whether any harm suffered by Amy was "as a result of" Aumais' criminal conduct.

Every circuit to consider the causation requirement of § 2259 has required a showing of proximate cause. See United States v. Doe, 488 F.3d 1154, 1159-60 (9th Cir. 2007) (gathering cases). This standard requires that a victim's damages be "proximately caused by [the defendant's conduct] whenever it appears from the evidence that the [conduct] played a substantial part in bringing about or actually causing the injury or damage, and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission." E. Devitt, C. Blackmar & M. Wolff, Federal Jury Practice and Instructions: Civil § 80.18, at 170 (4th ed. 1987). While this standard requires demonstration of a causal connection between a victim's claimed damages and the defendant's criminal conduct, it does not require proof "approaching mathematical precision." Doe, 488 F.3d at 1160. Thus, as every circuit to address the issue has held, "a rule of reasonableness is applied [and w]e 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." Id.

The Second Circuit has joined other circuits in adopting the same standard for determining causation. In United States v. Pearson, 570 F.3d 480 (2d Cir. 2009), the district court awarded restitution to two child victims against a defendant convicted of producing, transporting, receiving, and possessing child pornography. At sentencing, the district court awarded restitution in a total amount of $974,902 and the defendant appealed that portion of the award for future medical expenses. The Second Circuit held that under the reasonableness causation standard of Doe and other circuit cases, a victim may be entitled to estimated future medical and counseling expenses under § 2259 if those expenses can be reasonably estimated and remanded the case to the district court to identify the basis for its estimate of such future expenses. Id. at 486-87.

The defendant in Pearson had direct contact with the two child victims and was convicted, inter alia, of producing child pornography. Where a victim under § 2259 had direct contact with the defendant such as where the defendant sexually abused the victim or made photographs or videos of the victim later distributed to others, courts have encountered little difficulty finding the requisite causation. See, e.g., Doe, 488 F.3d 1 at 1161-62 (finding causation for restitution where defendant convicted of manufacturing child pornography); United States v. Crandon, 173 F.3d 122, 125-26 (3d Cir. 1999) (affirming award of restitution to child victim whom defendant engaged in sex and of whom defendant made sexually explicit photographs later distributed on the Internet); United States v. Baker, No. 6:08-CR-99, 2009 WL 4572785, at *5-8 (E.D. Tex. Dec. 7, 2009) (finding causation for restitution to defendant's ...


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