United States District Court, E.D. New York
For Robert Dileo, Defendant: Deirdre Dionysia Von Dornum, LEAD ATTORNEY, Federal Defenders Division, Brooklyn, NY; Michael Daniel Weil, Federal Defenders of New York, Inc., Brooklyn, NY.
For USA, Plaintiff: Nadia Shihata, LEAD ATTORNEY, U.S. Attorney's Office, Eastern District of New York, Brooklyn, NY; Brian D. Morris, United States Attorneys Office, Brooklyn, NY.
MEMORANDUM & ORDER
ERIC N. VITALIANO, United States District Judge.
Defendant Robert DiLeo pled guilty to one count of possession of child pornography in violation 18 U.S.C. § 2252(a)(4)(B). Save for the open question of restitution, he was sentenced on June 27, 2014. Restitution remained open because one of the victims depicted in the pornographic materials, " Vicky,"  who has retained counsel, is actively seeking restitution in this case, as she has in many similar prosecutions across America. In accord with 18 U.S.C. § 2259 and Paroline v. United States, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014), and notwithstanding Vicky's right to be heard through the Crime Victims' Rights Act, 18 U.S.C. § 3771, it is the government's burden to establish the restitution amount on behalf of the victim. For the reasons that follow, the Court, after an opportunity for all sides, including Vicky's counsel, to be heard, orders defendant to pay $2000 in restitution to Vicky, who is the only identified victim of the crime of conviction.
The following facts are taken from the indictment, plea allocution, all medical and psychiatric records and reports submitted in connection with sentencing, the pre-sentence report prepared by the Probation Office, and the affidavit of loss submitted by Vicky's counsel. The material facts are straightforward and undisputed by contrary evidence.
In September, 2011, an agent with Homeland Security Investigations (" HSI" ) downloaded a video containing child pornography from DiLeo's computer over a peer-to-peer file-sharing system. HSI
agents subsequently obtained a search warrant for defendant's residence in Queens. On November 8, 2011, the agents executed the warrant and searched DiLeo's home, seizing, among other things, a Hewlett Packard Tower desktop computer from an office on the first floor of the residence.
The agents conducted a preliminary search of the computer at DiLeo's residence, and found several videos on the hard drive containing child pornography. One of these videos was titled " Vicky willing bed rape pthc 11yo3.mpg." An HSI agent played the video and confirmed it was, indeed, a horrific film depicting Vicky, then a pre-pubescent girl, being sexually assaulted by an adult male.
Defendant was present during the execution of the search warrant, and agreed to speak with the agents. He told them that he lived at the residence, owned the computer, and had downloaded child pornography to his computer over Limewire, which is a peer-to-peer file sharing program, was installed on that computer. (Limewire is a recurring presence in child pornography cases.)
The HSI agents showed DiLeo several videos, including the one featuring Vicky, and he acknowledged that he had downloaded them to his computer over Limewire. He further admitted that he knew the videos contained child pornography, which he also sad he knew was illegal to possess. Based on these facts and a later forensic examination of the computer, defendant was arrested and indicted by a grand jury on several counts of distribution and possession of child pornography.
On October 12, 2012, defendant pled guilty to one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B), pursuant to a written plea agreement. A sentencing hearing was held on June 27, 2014. During the period between defendant's guilty plea and the sentencing hearing, the Supreme Court decided Paroline v. United States, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014), which, essentially, held that § 2259 requires a sentencing court to order restitution to an identified victim of the subject child pornography crime, but only after a showing by the government that the defendant was the proximate cause of that victim's past or continuing losses. In line with that holding, the Court directed both sides to submit further briefing on the issue of what amount of restitution, if any, was proper in this case. Vicky's counsel had made a filing in pursuit of restitution prior to sentencing which was supplemented for purposes of the restitution hearing. The United States Probation Office was invited to provide independent comment on the issue. On September 5, 2014, a restitution hearing was convened.
The Right to Restitution
Title 18 U.S.C. § 2259 is cut from the same statutory cloth that empowers the sentencing court to award restitution in almost all cases. By its terms, the section is limited to certain crimes involving child pornography, including the crime of possession. Section 2259 obligates the sentencing court to order restitution on behalf of an identified victim, and to " direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses as determined by the court." 18 U.S.C. § 2259(b)(1). The statute goes on to define
the " full amount of the victim's losses" to include:
(A) medical services relating to physical, psychiatric, or psychological case;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys' fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate ...