UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
Plaintiff,
v. ; Criminal Case No. 09-243 (GK)
MICHAEL MONZEL, .
Defendant.
MEMORANDUM OPINION
I. BACKGROUND
On December 10, 2009, Defendant Michael Monzel pled guilty to
one count of distribution of child pornography in violation of 18
U.S.C. § 2252(a)(2) and one count of possession of child
pornography in violation of 18 U.S C. § 2252(a)(4)(B). On October
22, 2010, this Court found that Defendant's conduct was a proximate
cause of the victim “Amy’s” losses. [Dkt. No. 44]. On January 22,
2011, the Court ordered Defendant to pay $5,000 in restitution to
Amy. [Dkt. No. 50].
On. April 19, 2011, our Court of Appeals found that the
restitution award to Amy Was less than the harm the Defendant
caused and remanded the case for reconsideration. United States v.
Monzel, 641 F.3d 528 (D.C. Cir.), cert. denied, 132 S. Ct. 756
(2011). Following remand, this Court issued an opinion on November
6, 2012, finding that the Government had failed to carry its burden
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of proving by a preponderance of the evidence the amount of Amy's
losses caused by Defendant, and therefore denied the Government’s
Supplemental Request for Restitution. [Dkt. No. 70]. On August 8,
2014, our Court of Appeals issued its mandate vacating this Court's
November 6, 2012 Opinion denying additional restitution to Amy and
further instructing this Court to re-determine restitution for Amy
in a manner consistent with the Supreme Court's decision in United
States v. Paroline, 134 S. Ct. 1710 (2014). [Dkt. No. 91].
This matter is again before the Court on the Government's
Supplemental Motion for Restitution pursuant to 18 U.S.C. § 2259.
II. Legal Standard
In Paroline, the Supreme Court examined “how to determine the
amount of restitution a possessor of child pornography must pay to
the victim whose childhood abuse appears in [the] pornographic
materials possessed.” 134 S. Ct. at 1716. The Court held that
restitution is “proper under § 2259 only to the extent the
defendant's offense proximately caused a victim's losses.” ld; at
1722. Proximate cause is a “flexible concept” that “generally
refers to the basic requirement that . . . there must be some
direct relation between the injury asserted and the injurious
conduct alleged.” 1§;_ at 1719 (internal quotation marks and
citations omitted).
“[W]here it can be shown both that a defendant possessed a
victim's images and that a victim has outstanding losses caused by
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the continuing traffic in those images but where it is impossible
to trace a particular amount of those losses to the individual
defendant by recourse to a more traditional causal inquiry, a court
applying § 2259 should order restitution in an amount that comports
with the defendant's relative role in the causal process that
underlies the victim's general losses.” Id. at 1727 (emphasis
added). However, the restitution amount should be neither
“severe,” nor “token or nominal ” Id. An award that is neither
severe nor nominal “serve[s] the twin goals of helping the victim
achieve eventual restitution for all her [or his] child-
pornography losses and impressing upon offenders the fact that
child-pornography crimes, even simple possession, affect real
victims.” §d;
The Supreme Court did not adopt a formula for determining
restitution in this type of case. Indeed, the Court said, “[t]his
cannot be a precise mathematical inquiry and involves the use of
discretion and sound judgment.” Ld;_ at 1728. To determine an
appropriate restitution amount, the court must first determine
“the amount of the victim's losses caused by the continuing traffic
in the victim's images.” ld; at 1728. After the court has
determined the amount of the victim's total losses, the court must
weigh several factors in determining the relative causal
significance of the defendant's conduct in relation to the victim's
total losses. The factors to be considered include:
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the number of past criminal defendants found to have
contributed to the victim's general losses; reasonable
predictions of the number of future offenders likely to
be caught and convicted for crimes contributing to the
victim's general losses; any available and reasonably
reliable estimate of the broader number of offenders
involved (most of whom will, of course, never be caught
or convicted); whether the defendant reproduced or
distributed images of the victim; whether the defendant
had any connection to the initial production of the
images; how many images of the victim the defendant
possessed; and other facts relevant to the defendant's
relative causal role.
ld. at 1728.
III. Analysis
a. Amy’s Losses
In its first request for restitution, the Government
estimated that Amy’s total loss was $3,263,758 for medical
services, lost income, attorney's fees, and other costs. See Dkt.
No. 44 at 17. In the Government's second request for restitution,
the Government maintained that loss amount (with the exception of
reducing her claim for specific expenses by $20,563). See Dkt.
No. 70 at 1. In the instant motion, the Government makes an
additional request for $8,886,300 for reduction in the value of
life. See Mot. at 7; Ex. D, Report of Economic Losses, Dr. Stan
Smith, dated September 15, 2008, at 4 [Dkt. No. 95-3] (filed under
seal).
The Court finds that Amy's additional request for $8,886,300
is untimely and she is bound by the initial loss amount of
$3,263,758 minus $20,563 equaling $3,243,195. In addition, the
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economic loss report relied on by the Government does not make it
clear whether the “reduction in value of life calculations” are
applicable in instances where the victim is not deceased. Ex. D at
4-6. Finally the Government's most recent request of $8,886,300 is
significantly larger than the value of the life peer-estimates
cited in the report. §ee id; (citing peer reports showing the value
of life between $1.6 million to $2.9 million in 1988, $4.7 million
in 2000, and $5.7 million in 2008). For these reasons, the Court
will exclude the request for reduction in the value of life, and
will rely only on Amy's original loss request in this case, which
is also the loss amount she has consistently requested in other
cases. See, e g., Paroline, 134 S. Ct. at 1718; United States v.
§i;§, 113 F. supp. 3d 91, 95 (D.D.c. 2015).
The Court finds Amy's request for lost wages and future
therapy to be sufficiently established and reasonable.
b. Restitution
The Court must now determine what portion of Amy's losses are
attributable to Defendant's conduct based upon a weighing of each
of the factors set forth in Paroline. With regard to the number of
past criminal defendants found to have contributed to Amy's losses,
the government has stated that it is aware of 197 restitution
orders on behalf of Amy. Mot. at 8. As to a reasonable prediction
of future offenders who will be convicted for contributing to Amy's
losses, the Government has stated that it does “not have
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sufficient, reliable data from which to make reasonable
estimates,” which the Court accepts. Ld; at 8. As to a reasonable
estimate of future offenders, whether or not they are caught or
convicted, the Government has stated that there is no way to
calculate such an estimate, which the Court also accepts. ld; at
8-9.
Pursuant to consideration of the Paroline factors, the
Government has no evidence that the Defendant distributed. any
images of Amy or was in any way connected to the initial production
of her images. §d; at 9.» While the Defendant possessed over 800
files of pornography, he possessed only one single image of Amy.
Opp'n at 29; Reply at 1 n. 1; Mot. at 9. “The government has no
evidence that the defendant knows the victim, attempted to discover
the victim's identity, or attempted to contact the victim. Nor
does the government have any evidence that the defendant
specifically sought images of the victim, or that the defendant
paid for or received anything of value for the victim's images.
The government is not aware of any efforts by the defendant to
groom other minors for sexual exploitation using images of the
victim.” ld;
As in Paroline, the Defendant's “contribution to the causal
process underlying the victim's losses was very minor, both
compared to the combined acts of all other relevant offenders, and
in comparison to the contributions of other individual offenders,
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particularly distributors (who may have caused hundreds or
thousands of further viewings) and the initial producer of the
child pornography ” Paroline, 134 S. Ct. at 1725.
The Government has not requested a specific restitution
amount. It asserts that the Defendant has “proximately caused
losses to ‘Amy'” and that the Defendant's “conduct is a proximate
cause of additional losses” to Amy, but does not attempt to
quantify those additional losses. Mot. At 7. It asks only that the
restitution be “non-token and non-nominal.” ld; at 9.
The Court has reviewed the relevant case law, as well as
restitution awards in a number of post-Paroline decisions. §§e,
e.g , United States v. Santee, No. 14-CR-00118, Minute Entry
(D.D C. Sept. 24, 2014) (awarding $2,000 in restitution when
defendant possessed four images); United States v. Campbell-Zorn,
2014 WL 7215214 (D. Mont. Dec. 17, 2014) (awarding restitution
amounts of $23,825 and $3,136 to victims); United States v. Bellah,
2014 WL 7073287 (D. Kan. Dec. 12, 2014) (awarding amounts of
$1,500, $5,000, and $7,000 to victims where number~ of images
possessed of each victim ranged from one to sixty-eight); United
States V. DiLeo, 20l4 WL 5841083 (E.D.N.Y. NOV. 4, 2014) (awarding
$2,000 in restitution when defendant possessed one image); United
States v. Mclntosh, 2014 WL 5422215 (E.D. Va. Oct. 22, 2014)
(awarding $14,500 in restitution where defendant possessed 51
images and 98 videos of victim). In light of the parties'
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arguments, the relevant Paroline factors, “which the Court treats
as rough guideposts for determining an appropriate restitution
amount,” United States v. Hite, 113 F. Supp. 3d 91, 99 (D.D.C.
2015), and in light of the information provided regarding prior
restitution awards for Amy, the Court, in its discretion,
determines that an award of $7,500 in restitution is appropriate.
The Court believes that such an amount comports with Defendant's
causal - but minor -- role in Amy's ongoing losses resulting from
the continued trafficking of her images.
IV. CONCLUSION
For the foregoing reasons, the Court will grant the
Government’s Supplemental Motion for Restitution. An Order will
accompany this Memorandum Opinion.
september (j_, 2016 6 /¢@(/\YT /{44/@/(\
Gladys Kesslér
United States District Judge
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