United States Court of Appeals
For the Eighth Circuit
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No. 16-3532
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Jessyca Hoskins,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: April 7, 2017
Filed: November 29, 2017
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Before COLLOTON and BENTON, Circuit Judges, and GERRARD,1 District Judge.
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GERRARD, District Judge.
Jessyca Hoskins was convicted of distributing a visual depiction of a minor
engaging in sexually explicit conduct and ordered to pay restitution of $7,500. She
1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska, sitting by designation.
argues that the evidence was insufficient to establish either that the victim’s losses
were proximately caused by the offense, or the amount of the loss. We affirm.
I.
The victim in this case was 14 years old when Hoskins videorecorded her
sexual assault. The victim was supposed to be spending a night with a friend, but
instead the two girls went to Hoskins’ apartment. They stayed there for most of the
weekend drinking, smoking marijuana, and going out to nightclubs.
It was there that the victim was introduced to Jason Henry, also known as “All
Star,” who had been invited over to meet the victim with the idea that he could
become the victim’s pimp. Henry pimped her to LaQuentin Jones, and Hoskins
videorecorded Jones and the victim having sex while others watched. While it was
happening, the victim said “no, no” or “stop, stop,” and held her hands up in the
direction of the camera. Hoskins sent the video to several people.
Upon learning some of what had happened, the victim’s mother took her to a
hospital, and the hospital called Fayetteville police. Police interviewed one of the
people to whom the video had been sent. At least one copy of the video was taken
from the phone of a schoolmate of the victim.
Henry was convicted in state court of prostitution and sexual assault. Jones
was also convicted of sexual assault in state court. And Hoskins was charged in
federal court with, among other things, knowing distribution of a visual depiction of
a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(2)
and (b)(1). Hoskins pled guilty to that charge.
The victim’s mother testified at sentencing about the effect of the offense on
the victim, and in particular the effect of the videorecording and its distribution. She
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said that the victim now dislikes being videorecorded, and has nightmares about it.
She asked the court to “imagine being 14 and going to school and the kids at your
school have seen a video of you being surrounded by other people and being. . . while
someone cheers it on?” (Ellipsis in original.) “[I]t would be naive of us to believe,”
she said, “even if it is supposition, that this video went one place and stopped.”
Hoskins was sentenced to 72 months’ imprisonment and a $2,400 fine, and the
district court set another hearing on the matter of restitution. A victim impact
statement completed by the victim’s mother described $38,700 in crime-related costs,
for a variety of expenses including private therapy and out-of-state travel related to
mental health treatment. Invoices and a ledger were provided to substantiate some
of those amounts. And the victim impact statement specifically sought $10,000 for
future medical expenses.
The district court2 ordered Hoskins to pay $7,500 in restitution. The court
analogized the situation to that presented in Paroline v. United States, in which the
Supreme Court addressed how to assess the proximate cause of a victim’s losses from
the possession of child pornography. 134 S. Ct. 1710 (2014). The court reasoned that
Paroline was “highly instructive” because this case, like Paroline, involves an injury
caused by Hoskins’ distribution of images of the victim’s rape.
The district court began by estimating the victim’s full damages, as a “rough
guidepost” for determining an amount appropriate to Hoskins’ offense. The court
found that the victim had incurred a total of $11,895 in documented losses, based on
the invoices and ledger provided by the victim’s mother. The court further credited
$3,000 in incurred but undocumented damages, explaining that it was intended to be
2
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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a “reasonable but low estimate,” given the costs normally associated with travel,
emergency room care, and psychiatric or psychological treatment.
The court also found, based on the victim impact statement and in-court
testimony of the victim’s mother, that the victim was likely to incur future medical
expenses. The court estimated the victim’s future medical expenses based on the
records of medical expenses already incurred, concluding that she would incur at least
$40,000 in future psychological and related expenses. The court characterized that
as “an extremely low estimate. Projecting 15 years of outpatient therapy at a modest
average of $50 per week, for example, is $39,000 alone. This does not include any
inpatient care, medications, or other medical expenses that [the victim] may require.”
This brought the court’s determination of the victim’s total damages to $54,895.
Then, the district court turned to a determination of what amount of those
damages was proximately caused by Hoskins. The court acknowledged that most of
Hoskins’ damages were attributable to Henry, Jones, and others–but, the court found,
“Hoskins’ actions proximately caused a significant part of those damages too.”
Hoskins filmed the victim being raped, and distributed that video to another minor.
And the victim’s mother, the court noted, described the victim’s ongoing trauma as
being premised in part on the constant fear that the video of her rape has been, or
could be, available on the Internet.
So, the district court concluded, a restitution award of $7,500 was appropriate
in this case. Hoskins timely appealed from the court’s order awarding restitution.
See Manrique v. United States, 137 S. Ct. 1266, 1272-73 (2017).
II.
We review the district court’s decision to award restitution for abuse of
discretion, but any fact findings as to the amount are reviewed for clear error. United
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States v. Carpenter, 841 F.3d 1057, 1060 (8th Cir. 2016). The government bears the
burden of proving the amount of restitution based on a preponderance of the
evidence. Id.
Hoskins’ argument is twofold. She contends that the district court erred in
awarding restitution because the evidence did not provide a basis for the court to
ascertain the amount of the loss with reasonable certainty. And, she argues, the court
erred in finding that Hoskins’ conduct proximately caused the victim’s injury.
A.
Hoskins’ first argument is that the government failed to meet its burden to
prove the loss sustained by the victim by the preponderance of the evidence. See 18
U.S.C. 3664(e); 18 U.S.C. § 2259(b)(2) (citing § 3664). Specifically, Hoskins takes
issue with the sufficiency of the evidence with respect to future medical expenses.
She asserts that “[t]he record in this case contains no reliable expert medical
testimony as to the amount of future psychological treatment that will be required by
[the victim].”3 “There was,” Hoskins argues, “no evidence presented that would
allow the court to conclude that [the victim] would require 15 years of outpatient
therapy (or a longer term of therapy, or a shorter term, or a different type of
treatment).” So, Hoskins concludes, “[t]he court’s $40,000 estimate was essentially
arbitrary, and the total amount of [the victim’s] loss was thus not ascertained with
reasonable certainty.”
3
The district court was provided with a letter from a trauma and recovery
specialist, who opined that the best course of treatment in “traumatic cases involving
sex trafficking” is initially a residential facility, followed by an outpatient treatment
program and then a mentoring or support program, and advised that the average cost
of residential treatment is $2,000 per week and outpatient treatment is $1,000 per
week. But the court, for a number of reasons, did not find that evidence credible, and
did not rely on it.
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But as a general matter, it is well-established that mandatory restitution
pursuant to § 2259 allows restitutionary damages for the future costs of therapy.
United States v. Funke, 846 F.3d 998, 1001 (8th Cir. 2017). And “[a]lthough
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.” United States v. Palmer, 643 F.3d 1060, 1067 (8th
Cir. 2011).
Hoskins points out that in Palmer, the district court benefitted from the opinion
of a child psychologist who opined about the future medical expenses to be expected
for the victim in that case, despite not having interviewed her. See id. at 1063-64.
But in the context of already-incurred expenses, we have held that the district court
was entitled to rely on the testimony of the victim and her mother, and “a basic
knowledge of medical expenses,” in determining the amount of restitution to be
awarded. United States v. Emmert, 825 F.3d 906, 911 (8th Cir. 2016). There is no
reason that an estimate of future medical expenses cannot be based on similar
evidence, so long as the estimate is reasonable. See Palmer, 643 F.3d at 1067.
As we recognized in Palmer, there is a certain degree of conjecture involved
in any estimation of future psychological damages. See id. And Hoskins does not
take issue with the district court’s factual finding that the victim is likely to incur
future medical expenses in some amount. The court’s conservative estimate of those
expenses, based on the testimony of the victim’s mother and the documented
expenses already incurred, was not clearly erroneous.
B.
Hoskins also contends that her conduct did not proximately cause the loss
suffered by the victim. She argues that the district court erred in relying upon
Paroline, which she says is inapplicable because it was “intended to assist the district
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courts in awarding restitution in typical child-pornography possession cases based on
loss directly tied to the wide circulation of images among thousands of people.” The
instant case, she suggests, should instead have been resolved by a “traditional causal
analysis.” But while Paroline is not factually on point, the Supreme Court’s
reasoning in that case drew on general principles of proximate cause, discussing them
in some detail, and it is those principles that are relevant here.
Pursuant to Paroline, restitution is proper to the extent that the offense
“proximately caused a victim’s losses.” 134 S. Ct. at 1722. The Court explained,
however, that “the most difficult aspect of this inquiry concerns the threshold
requirement of causation in fact.” Id.
But the victim’s costs of treatment and lost income resulting from the
trauma of knowing that images of her abuse are being viewed over and
over are direct and foreseeable results of child-pornography crimes,
including possession, assuming the prerequisite of factual causation is
satisfied. The primary problem, then, is the proper standard of causation
in fact.
Id. The Court noted that one “traditional way” of proving causation in fact was “but
for” causation; in Paroline, however, a showing of but-for causation could not be
made. Id. The Court nonetheless found that § 2259 did not require but-for causation,
and that restitution could be awarded 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.
Hoskins is correct that in this case, we do not have the problem presented in
Paroline, where the victim’s losses were caused by ongoing traffic in images but it
was impossible to trace a particular amount of those losses to the defendant. See id.
But that does not make this case more complex–rather, it simplifies this case because
to the extent that the victim’s losses are caused by traffic in her images, it is possible
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to trace a particular amount of those losses to Hoskins. It is, in fact, possible to trace
all such losses to Hoskins, because in this case, a showing of but-for causation can
be made. Distribution of the victim’s images began with and is attributable to
Hoskins.
The real gravamen of Hoskins’ argument, though, is that the victim’s “past and
future medical and psychological treatment was necessary due to the sexual abuse she
suffered” and that Hoskins “cannot be ordered to pay restitution for losses resulting
from the [victim’s] sexual exploitation and assault.”4 But as set forth above, the
evidence here does identify aspects of the victim’s injuries that are specifically
attributable to the distribution of her images. And determining the amount of
restitution where a number of causes contributed to the victim’s losses was addressed
in Paroline: the district court “must assess as best it can from available evidence the
significance of the individual defendant’s conduct in light of the broader causal
process that produced the victim’s losses.” 134 S. Ct. at 1727-28. That “cannot be
a precise mathematical inquiry” but, rather, “involves the use of discretion and sound
judgment.” Id. at 1728.
Furthermore, the Supreme Court expressly rejected the argument that
apportionment of liability for a victim’s losses is untenable where those losses are
arguably indivisible. Id. The Court explained that while it might be in some sense a
“fiction” to say that a defendant caused a particular amount of losses, it was necessary
to “define a causal standard” for § 2259 that “effects the statute’s purposes, not to
apply tort-law causation concepts in a mechanical way in the criminal restitution
context.” Id. at 1729. District courts, the Supreme Court said,
4
It bears recalling that while Hoskins also participated in the victim’s assault,
restitution under § 2259 is proper “only to the extent the defendant’s offense
proximately caused a victim’s losses.” Paroline, 134 S. Ct. at 1722 (emphasis
supplied). So, for purposes of restitution, only losses proximately caused by the
offense of conviction–distribution of child pornography–are at issue.
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can only do their best to apply the statute as written in a workable
manner, faithful to the competing principles at stake: that victims should
be compensated and that defendants should be held to account for the
impact of their conduct on those victims, but also that defendants should
be made liable for the consequences and gravity of their own conduct,
not the conduct of others.
Id. The district court’s careful exercise of its discretion in this case was faithful to
those principles.
In sum, the evidence before the district court provided a basis to conclude that
some of the victim’s losses were uniquely caused by Hoskins distributing the video
of her assault. The court did not abuse its discretion in deciding to award restitution,
nor did it clearly err in assessing the amount of restitution to be awarded.
The district court’s restitution award is affirmed.
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