United States v. Palmer

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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Nos. 10-2272/2399
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United States of America, *
*
Appellant/Cross-Appellee, *
*
v. *
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Debra Palmer, *
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Appellee/Cross-Appellant. *

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Appeals from the United States
Nos. 10-2724/2824 District Court for the
___________ Western District of Missouri.

United States of America, *
*
Appellant/Cross-Appellee, *
*
v. *
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Todd B. Barkau, *
*
Appellee/Cross-Appellant. *

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Submitted: May 13, 2011
Filed: July 1, 2011
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Before RILEY, Chief Judge, SMITH, Circuit Judge, and STROM,1 District Judge.
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RILEY, Chief Judge.

Debra Palmer and Todd Barkau (collectively, defendants) operated an illicit
bondage domination sadism masochism (BDSM) business. The defendants trained
Palmer’s 12-year-old daughter (child or victim) to become a dominatrix. When the
child was 14 years old, defendants sold the girl’s services to customers on the internet
using webcam sessions and in-person sessions. After the defendants pled guilty to
commercial sex trafficking of a child, the district court ordered the defendants to pay
$200,000 in restitution to cover the child’s future mental health expenses. The
government appeals, and both defendants appeal. We affirm in part and reverse in
part.

I. BACKGROUND
A. Defendants’ Crimes
Barkau, Palmer, and the child lived in the same home. In 2000, when the child
was 12 years old, Palmer helped Barkau train the child to become a dominatrix.
Palmer also allowed Barkau to engage in sexual intercourse and BDSM activities with
her daughter.

In 2002, Barkau created an illicit BDSM business, advertising the child as
“Mistress Alisha” on a website.2 For approximately two years, Barkau sold the child’s
services to men for online and in-person BDSM activities—including bondage,

1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska, sitting by designation.
2
Palmer suggested the “Mistress Alisha” moniker because “Alisha” was
Palmer’s pseudonym when she was a stripper.

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beatings, burnings, and genital mutilations. Barkau earned as much as $80,000 from
the business.

B. Prior Proceedings
In September 2009, the defendants each pled guilty, pursuant to a binding plea
agreement with the government, to one count of commercial sex trafficking of a child,
a violation of 18 U.S.C. § 1591 and § 2. See Fed. R. Crim. P. 11(c)(1)(C). The
parties agreed Palmer and Barkau would receive 15- and 25-year terms of
imprisonment, respectively, and pay restitution to the child.

1. Palmer’s Sentencing
In May 2010, the district court accepted the parties’ agreement and sentenced
Palmer to 15 years imprisonment, a substantial downward variance from her advisory
United States Sentencing Guidelines (U.S.S.G. or Guidelines) range of life in prison.
The dispute at Palmer’s sentencing hearing was the amount of restitution owed to the
child.

The government presented the district court with expert testimony from Gerald
K. Gentry, Ph.D., a clinical child psychologist. Dr. Gentry estimated the child would
incur over $1 million in treatment costs over the course of her lifetime as a result of
the defendants’ actions—approximately $200,000 in psychotherapy and $800,000 for
psychiatry and medication.

Dr. Gentry testified he treated over 200 victims of child sexual abuse in his 30-
year career. Dr. Gentry characterized the child’s sexual abuse as “one of the two or
three most egregious cases that I’ve been involved with.” Dr. Gentry concluded the
child would incur $1 million in treatment because (1) the abuse was especially severe,
involving “torture and humiliation” and “all kinds of sexual perversion and
degradation”; (2) the abuse began when the child was only twelve and lasted for five
years; and (3) the abuse resulted in an egregious “destruction of trust,” as “the

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victim’s mother was directly involved in the decision to move ahead with the abuse.”
On that basis, the government asked the district court to order Palmer, jointly and
severally with Barkau, to pay the full $1 million in restitution.

Palmer stipulated to Dr. Gentry’s qualifications, but objected to the amount of
the government’s restitution request. Palmer averred, “although . . . there’s a good
possibility counseling expenses will be incurred in the future, . . . [there is not] an
adequate foundation for this court to determine whether it’s a million dollars or two
million dollars or five thousand dollars.” On cross-examination, Dr. Gentry conceded
he never interviewed the child; “every individual is different”; and he did not know
the child’s present emotional condition or whether she used medications or abused
alcohol or narcotics. Palmer opined Dr. Gentry lacked sufficient information to
estimate the child’s future expenses, but conceded the district court could “structure
an order whereby restitution will be determined as needed as those expenses are
incurred.”

The government rejoined, explaining Palmer had not offered any alternative
calculation of the child’s future expenses. Dr. Gentry insisted “the facts speak for
themselves” and an interview might “retraumatiz[e] the victim by delving into the
details and bringing up all the memories.” The government stressed Dr. Gentry was
conservatively estimating the child’s future treatment costs, not diagnosing the child
with an illness. Describing his projection as a “median” cost for a victim of similar
sexual abuse, Dr. Gentry insisted he was “confident in [his] projections.” The
government expressed concern about Palmer’s proposed “special condition” of
restitution as needed, because that was “never how it’s worked in the past”; the
government was “not sure there is a practical way to have it work in that format”; and
the special condition would result in the victim having “to come up with the money
to . . . pay for the counseling upfront, and that’s why [presently] she can’t get the
counseling.”

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 The child, now a young adult in need of treatment, spoke at the hearing and
indicated she had attended counseling with state assistance but, having exhausted all
available funding, was no longer able to pay the requisite $180 for each counseling
session.3 The victim stated she “want[ed] to go to counseling more than anything, but
[she] can’t afford it.” The victim said she recently lost her job, explaining, “I feel
unable to continue in that career track, or any track at all, for that matter, the main
reason being that I have so many emotional issues that small situations in my job
make me so overwhelmed with flashbacks that I’m unable to continue working.” The
victim reported she suffers from depression, anxiety, flashbacks, paranoia, migraine
headaches, and seizures. Crying, the victim lamented she lacked a family support
system, in part, because her mother participated in her abuse. The child concluded,
“[N]othing . . . is going to get any easier until I’m able to get some help.”

The district court granted in part and denied in part the government’s restitution
request, requiring Palmer to pay $200,000 in restitution jointly and severally with
Barkau. The court ordered, “A lump sum payment of the full amount is ordered due
immediately.” In light of Palmer’s indigency, the district court directed Palmer to
make quarterly payments of $25, or at least 10% of her earnings, whichever is greater,
while incarcerated. After her release, Palmer must make quarterly payments of $100,
or 10% of her gross income, whichever is greater. The district court then added
Palmer’s requested special condition, “requir[ing] [Palmer] to make the payments into
an account until that account reaches $5,000. Thereafter, [Palmer] is to maintain the
account at $5,000 so that counseling expenses actually incurred can be paid from the
account for the victim.”

In discussing the denial of more than $800,000 of the government’s restitution
request, the district court remarked:

3
Dr. Gentry’s estimate was based upon a lower $175 per hour rate without any
allowance for inflation over the course of the victim’s life.

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 [T]he problem with the evidence is that it is very speculative. And
I’m not calling into question at all the expert’s credentials, but the record
on which his decision was based is very speculative.

He did not, in fact, talk to this particular individual, and victims
vary widely as to . . . what resiliency they have. And . . . that’s
something that precludes me from accepting as true everything that the
expert has said in terms of the amount of services that would be required.

The district court justified its $200,000 restitution award, stating:

[T]here is no question that there is going to be a need for
psychiatric—not psychiatric, but psychological services, and I think that
the victim has made that clear, as well. But $200,000 ensures that all of
even the expert’s suggestions concerning 30 years of psychological
services will be covered . . . . I think it is purely speculative that there
will be . . . $800,000 in medications and hospitalizations. I just don’t
think that’s going to happen. But I don’t know one way or the other
because I have no basis for looking at this particular individual and
seeing how she is going to respond to these circumstances. $200,000 I
think . . . is a realistic number for compensating the victim for counseling
services, and what I’ve done is also try to take into account [Palmer’s]
concerns.

Discussing the special condition, the district court observed:

[T]hese payments will come into a fund and as the services are
incurred, payments then will be made for those services and the
defendant has to keep that fund at at least . . . $5,000. And . . . if the
defendant ever pays $5,000, I’ll be surprised, but the fact is there has to
be at least $5,000 always in that account up to $200,000 over the lifetime
of the defendant.

The government did not object to the special condition. The government appealed,
and Palmer cross-appealed.

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 2. Barkau’s Sentencing
In July 2010, the district court sentenced Barkau to 25 years of imprisonment
(a downward variance from his Guidelines range of 324 to 405 months
imprisonment).4 With respect to restitution, the parties agreed to incorporate the
record of Palmer’s sentencing into Barkau’s case. Noticing the government had
appealed the restitution special condition in Palmer’s case, the district court stated,
“my concern is that if, in fact, that’s error to do it that way, then based on the record
I would not enter any restitution order because I felt there was not sufficient evidence
from the expert who had never examined the person, the victim in this case.” The
government objected to “the new finding about insufficient evidence if that alternative
restitution order had to be in place.”

Over the government’s objection, the district court imposed a restitution order
in Barkau’s case in all relevant respects identical to Palmer’s restitution order. The
district court explained:

As to the restitution order, my alternative judgment is that I would not
impose restitution if, in fact, my order is not proper because I felt that
there was insufficient evidence to show, in fact, what counseling was
needed and that it was going to be pure speculation.

4
Barkau’s Presentence Investigation Report (PSR) suggested a Guidelines range
of life (level 45, category I) based in part on a four-level enhancement for threatening
the child into working as a dominatrix. See U.S.S.G. § 2G2.1(b)(2)(B). The PSR
related the victim “told her mother and Barkau that she wanted to stop her relationship
with Barkau and the dominatrix; however, every time she was threatened and scared
back into being with Barkau and continuing the dominatrix.” Barkau objected to this
allegation, in order to address issues in the Bureau of Prisons concerning a more
lenient custody classification. After the government declined to present any evidence,
the district court observed it had “no choice but to . . . sustain the objection” and
lowered Barkau’s Guidelines range.

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 So if this order is insufficient, the alternative order would be I
would not impose any restitution solely because the record is not
sufficient to convince me what is needed.

The government appealed, and Barkau cross-appealed.

II. DISCUSSION
Restitution is mandatory under the Victims of Trafficking and Violence
Protection Act of 2000, as amended (TVPA), 18 U.S.C. § 1593, the Mandatory
Victims Restitution Act of 1996, as amended (MVRA), 18 U.S.C. §§ 3663A-3364,
and the parties’ plea agreements. On the government’s appeals, the issues are whether
the district court erred in (1) attaching the special conditions5 and, if so, (2) issuing its
alternative restitution orders. On the defendants’ cross-appeals, the issue is whether
the district court erred in fixing the child’s restitution award at $200,000.

A. Government’s Appeals
1. Standards of Review
We ordinarily would review the district court’s special conditions de novo. See
United States v. Mancini, 624 F.3d 879, 882 (8th Cir. 2010). In Palmer’s case, we
review the special condition for plain error because the government failed to object
to the special condition at her sentencing. See United States v. Becker, 636 F.3d 402,
405 (8th Cir. 2011). To show plain error, the government must establish

(1) there is an error; (2) the error is clear or obvious, rather than subject
to reasonable dispute; (3) the error affected [the government’s]
substantial rights, which in the ordinary case means it affected the
outcome of the district court proceedings; and (4) the error seriously

5
The government contends its appeals of the special conditions are ripe
notwithstanding the district court’s doubts about the defendants’ ability to make more
than $5,000 in restitution to the child. We agree. See United States v. Collins, 209
F.3d 1, 2 n.1 (1st Cir. 1999).

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 affect[s] the fairness, integrity or public reputation of judicial
proceedings.

United States v. Marcus, 560 U.S. ___, ___, 130 S. Ct. 2159, 2164 (2010) (quoting
Puckett v. United States, 556 U.S. ___, ___, 129 S. Ct. 1423, 1429 (2009) (internal
marks omitted)).

2. Analysis
a. Special Conditions
In relevant part, the MVRA authorizes the district court to “direct the defendant
to make . . . partial payments at specified intervals.” 18 U.S.C. § 3664(f)(3)(A).
When we are able to ascertain the plain meaning of statutory text, we apply that
meaning. See United States v. I.L., 614 F.3d 817, 820 (8th Cir. 2010) (“The Supreme
Court has ‘stated time and again that courts must presume that a legislature says in a
statute what it means and means in a statute what it says there.’”) (quoting Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253-54 (1992)).

The government essentially argues the district court’s special conditions lack
“specified intervals” because the defendants’ payments are tied to a future
contingency and are not set at predetermined moments in time. We agree.

The MVRA does not define “specified intervals,” but the plain and
unambiguous meaning of the phrase connotes a temporal reach. One dictionary
defines “specified” as “[t]hat is or has been definitely or specifically mentioned,
determined, fixed, or settled” and “interval” as “[t]he period of time between two
events, actions, etc.” Oxford English Dictionary (Online ed. 2011). The MVRA’s
requirement of “specified intervals” necessitates preordained dates and may not be
conditioned on the occurrence (or non-occurrence) of future events at unknown points
in time. Otherwise the interval is not “specified.”

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 As the government argues, the practical effect of the district court’s special
condition is to “avoid the MVRA’s requirement that restitution be mandatory” by
“reliev[ing] the defendants from their minimum statutory obligation to make payments
at regular intervals toward the entire $200,000 restitution amount.” The special
condition requires the child to incur out-of-pocket expenses and seek reimbursement
each time she needs counseling, which reasonably could deter or discourage her from
receiving help.

With regard to Palmer’s appeal, the district court’s error in imposing the special
condition is plain. “Without question, an objection by counsel could have focused the
district court on these issues, but a restitution order must reflect an informed judgment
consistent with the facts of the case and the law.” United States v. Kaydahzinne, 334
F. App’x 144, 150 (10th Cir. 2009). The special condition manifestly violates the law.
In our discretion, we elect to afford the government plain error relief in Palmer’s case
because allowing the special condition in Palmer’s case, but not in Barkau’s case,
would seriously affect the fairness of these judicial proceedings. See Marcus, 560
U.S. at ___, 130 S. Ct. at 2164. See also Weems v. United States, 217 U.S. 349, 362
(1910). Plain error relief here is also consistent with our solemn statutory duty to
safeguard the child’s “right to full and timely restitution as provided in law.” 18
U.S.C. § 3771(a)(6), (b)(1).6

b. Alternative Restitution Orders
We vacate the district court’s alternative restitution orders as unenforceable
attempts to impinge on the government’s right to appeal. See Bayless v. Estelle, 583
F.2d 730, 733 (5th Cir. 1978) (“The right to appeal any . . . decision of any court is a
sacred right that must remain free, open and unfettered and without fear, threats or
penalty.”) (quotation omitted). As we discuss below, the denial of all restitution to

6
It is worth noting the child lacks recourse from the government for its
professional negligence. See 18 U.S.C. § 3771(d)(6).

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this child, who suffered untold sexual abuse, humiliation, and torture, would be
contrary to law and clearly erroneous on this record. The award of restitution is
required by law, 18 U.S.C. § 1593 and § 3663A(a)(1), (b)(2), and the evidence in the
record sufficiently supports the $200,000 assessment.

B. Defendants’ Cross-Appeals
1. Standards of Review
“We review for clear error the amount of restitution ordered.” United States v.
Simon, 376 F.3d 806, 809 (8th Cir. 2004). “[W]e take a broad view of what conduct
and related loss amounts can be included in calculating loss.” United States v.
DeRosier, 501 F.3d 888, 896 (8th Cir. 2007). Although predicting future
psychological damages is notoriously difficult, the district court was only required to
make a reasonable estimate, not establish the victim’s future treatment costs with
certainty. See United States v. Boesen, 541 F.3d 838, 850-51 (8th Cir. 2008).

2. Analysis
The defendants argue the district court erred in awarding the child any
restitution, maintaining Dr. Gentry’s estimate of future psychological treatment was
too speculative to fix the amount of the child’s award at $200,000. The defendants
reiterate Dr. Gentry never formally interviewed the child, and then argue each victim
of sexual abuse has a different level of resiliency to sexual abuse.

The district court did not clearly err in fixing the amount of the child’s
restitution at $200,000. Dr. Gentry’s expert opinion provided the district court with
a reasonable estimate of the child’s future costs of psychological treatment, and such
opinion stands unrebutted in the record. The district court expressly considered, and
found partially valid, the defendants’ concerns about the lack of a formal interview
and resiliency variances. For those reasons, the district court declined to award the
child any restitution for future psychiatric treatment or medical expenses. But the
district court found there was “no question” the victim would incur future

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psychological treatment costs. This last finding, the only finding we are asked to
review, is not clearly erroneous under these appalling facts.

The Supreme Court has recognized the commonsense principle that childhood
sexual abuse results in untold psychological harm to its victims. See, e.g., Kennedy
v. Louisiana, 554 U.S. 407, 435 (2008) (“Rape has a permanent psychological,
emotional, and sometimes physical impact on the child . . . . We cannot dismiss the
years of long anguish that must be endured by the victim of child rape.”). The harm
to the victim here is undeniable and considerable, and she leaves little doubt she will
seek all the psychological treatment she can afford. If the eloquence of her statements
to the district court at the defendants’ sentencing hearings is any indication, she
possesses the determination to clear the regrettably high hurdles of her life.

III. CONCLUSION
We affirm in part and reverse in part. The $200,000 restitution award is
affirmed. The restitution payment special conditions are vacated, and the alternative
restitution orders are vacated. We remand to the district court for further proceedings
not inconsistent with this opinion.
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