United States v. Julian

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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