F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAR 20 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-5103
JARROD SEAN THOMAS JULIAN,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. No. 99-CR-150-BU)
Submitted on the briefs:
Stephen C. Lewis, United States Attorney, Susan K. Morgan, Assistant United
States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.
Michael G. Katz, Federal Public Defender, Jenine Jensen, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
MURPHY , Circuit Judge.
After pleading guilty to three violations of 18 U.S.C. § 371 and 18 U.S.C.
§ 2251(a) & (b), defendant Jarrod Sean Thomas Julian was sentenced to 210
months’ imprisonment. He was ordered to pay restitution of $3,195 for past
medical and counseling expenses to one of his child victims and the Oklahoma
Department of Human Services. Defendant appeals from that portion of the
judgment imposing liability for future counseling or treatment costs required by
one of the victims. Appellant’s App. Vol. I, Doc. 93 at 4. Our jurisdiction arises
under 18 U.S.C. § 3742(a). 1
To protect the privacy of the young victims in this case, we limit the factual
discussion to state only that defendant committed multiple acts of child sexual
abuse and exploitation over a period of many years. When defendant’s crimes
were finally discovered in 1999, the victims were taken into state custody, where
they commenced counseling.
Defendant’s challenge to the judgment ordering him to pay for one of his
victim’s future counseling expenses is premised on three arguments: (1) the
restitution statutes do not specifically provide for restitution for future costs or
expenses; (2) the judgment for future counseling costs was neither properly
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
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limited to a specific amount nor based on any evidence in the record; and (3) his
due process rights were violated because he did not have notice or an opportunity
to contest that portion of the judgment imposing liability for future counseling
expenses. We review de novo the legality of a sentence, i.e., the method or
process used by a district court to determine a proper sentence. United States v.
Diamond , 969 F.2d 961, 965 (10th Cir. 1992). Because defendant did not object
to an award of future counseling costs at his sentencing hearing, we review for
plain error. United States v. Johnson , 183 F.3d 1175, 1178-79 (10th Cir. 1999).
A. Authority to order restitution for future counseling expenses.
“Federal courts possess no inherent authority to order restitution and may
only do so as explicitly empowered by statute.” United States v. Nichols , 169
F.3d 1255, 1278 (10th Cir.) (quotation omitted), cert. denied, 528 U.S. 934
(1999). Defendant premises his first argument in part upon an assertion that the
district court ordered restitution under 18 U.S.C. § 3663A, the general mandatory
restitution statute. He bases this assertion upon the fact that defendant’s
probation officer recommended restitution under this statute in one paragraph of
the presentence report. We note, however, that the presentence report also
requests restitution, and defendant’s plea agreement specifically references
restitution, under 18 U.S.C. § 2259, the mandatory restitution statute for sex
crimes involving children. Further, the government specifically cited § 2259 as
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the basis for restitution at the sentencing hearing. Appellant’s App. Vol. V at 15.
The district court cited no restitution statute in its written order; it did, however,
make reference to § 3663A during the sentencing hearing. Id. at 19. However,
even if the district court erroneously used the general, rather than the specific
restitution statute as a basis for its judgment, cf., e.g., Busic v. United States , 446
U.S. 398, 406 (1980) (stating that “a more specific [criminal] statute will be given
precedence over a more general one”), superceded by statute on other grounds as
stated in United States v. Gonzales , 520 U.S. 1 (1997), it is the language of
§ 2259 with which we are concerned in determining whether the court had
statutory authority and discretion to award future costs for counseling.
Section 2259(b) provides for mandatory restitution of “the full amount of
the victim’s losses,” which includes “ any costs incurred by the victim” for
“medical services relating to physical, psychiatric, or psychological care.”
(emphasis added). In United States v. Laney , 189 F.3d 954 (9th Cir. 1999), a
case with similar facts, the Ninth Circuit held that this language authorized
compensation for future counseling expenses. Id. at 967. The court reasoned that
the statute is “phrased in generous terms,” noting that the word “incur” means
“become liable or subject to.” Id. at 966 (quoting W EBSTER ’ S T HIRD N EW I NT ’ L
D ICTIONARY 1146 (1986)). Defendant’s argument that Congress purposefully
used the past tense of “incur” so that only past counseling expenses are
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referenced is unavailing. The sentence structure in the statute calls for the
particular verb form, but the statute provides for “full” recovery of “any”
counseling costs for which the victim became liable, which includes future
losses. As a consequence, verb tense does not restrict restitution to those costs
incurred up to the time of sentencing.
We note that § 2259 and the other two mandatory restitution statutes
associated with violence against women and children which were adopted at the
same time, see 18 U.S.C. §§ 2248 & 2264, are much broader than § 3663A. As
mentioned above, these three statutes use the terms “ full amount of the victim’s
losses” for “ any costs incurred ” for physical, psychiatric, or psychological care,
and also include restitution for “ any other losses suffered by the victim as a
proximate result of the offense” (emphasis added). None of the italicized
language appears in § 3663A(b), which mandates only payment of amounts
“equal to the cost of necessary medical and related professional services” and
other specific costs.
Further, as the Ninth Circuit pointed out, the legislative history of the
statutes forbidding sexual exploitation of children and imposing mandatory
restitution for psychological counseling also supports our interpretation.
“Congress was well aware that children victimized by sexual abuse often do not
recover quickly from their injuries.” Laney , 189 F.3d at 966 (citing S. Rep. No.
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104-358, at 14 (1996)). Indeed, the legislative history of the amended statutes
prohibiting the use of children in pornography cites and quotes broadly from the
seminal case of New York v. Ferber , 458 U.S. 747 (1982). See, e.g., S. Rep. No.
104-358, at 34-38; H. R. Rep. No. 99-910, at 4-5 (1986); H. R. Rep. 98-536, at 3
(1983). In Ferber , the court extensively discussed the long-term serious
physiological, emotional, and mental difficulties of children who have been
sexually exploited:
The use of children as subjects of pornographic
materials is very harmful to both the children and the
society as a whole. It has been found that sexually
exploited children are unable to develop healthy
affectionate relationships in later life, have sexual
dysfunctions, and have a tendency to become sexual
abusers as adults.
....
Pornography poses an even greater threat to the child
victim than does sexual abuse or prostitution. Because
the child’s actions are reduced to a recording, the
pornography may haunt him in future years, long after
the original misdeed took place. A child who has posed
for a camera must go through life knowing that the
recording is circulating within the mass distribution
system for child pornography. . . . It is the fear of
exposure and the tension of keeping the act secret that
seem to have the most profound emotional
repercussions.
Ferber , 458 U.S. at 758-60 n.9, 10.
In discussing the rationale behind the mandatory restitution statutes,
Congress noted the goal of criminal restitution: to “ensure that the wrongdoer is
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required to the degree possible to restore the victim to his or her prior state of
well being.” S. Rep. 104-179, at 42-44 (1995) (discussing the development of the
federal criminal restitution statutes and further amending the statutes to “require
that full restitution be ordered to the victims of all covered offenses in which
there is an identifiable victim”). The time from arrest to sentencing in this case is
not unusually short. Certainly, the few months of counseling this victim
underwent during this time period cannot “restore the victim to his or her prior
state of well-being,” id. , after long-term regular and severe sexual abuse and
exploitation. We conclude that the district court was authorized under § 2259 to
order defendant to pay for his victim’s future counseling costs.
B. Remand for evidentiary hearing and specific findings.
The government concedes, however, that a restitution order must be
specific in a dollar amount that is supported by evidence in the record. In United
States v. Watchman , 749 F.2d 616 (10th Cir. 1984), we held that restitution
orders pertaining to costs associated with medical and related services must be
specific and contain “details as to dollars not generalities,” and that the district
court must support its restitution order with findings of fact in the record. Id. at
618-19; see also United States v. Smith , 156 F.3d 1046, 1057 (10th Cir. 1998)
(“[t]he government bears the burden of proving the amount of loss when seeking
restitution. A restitution order entered without proof of loss is clearly
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erroneous.”) (citation omitted); Laney , 189 F.3d 954, 967 & n.14 (“Of course,
district courts must estimate the amounts that victims will spend on future
counseling with reasonable certainty, in accordance with the procedures set forth
in 18 U.S.C. § 3664.”). The presentence report contained no evidence regarding
the victim’s need for future counseling or the estimated cost of that counseling.
We therefore remand for a hearing on these issues. This remand renders moot
defendant’s third claim of error.
The judgment of the United States District Court for the Northern District
of Oklahoma is vacated only as to that part of the order requiring restitution for
unspecified future costs, and the case is remanded for further proceedings and
resentencing consistent with this opinion.
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