Petition for Writ of Certiorari — Michael M. Monzel, Petitioner v. United States

No. ___-_______

IN THE

Supreme Court of the United States

MICHAEL M. MONZEL,

v.

UNITED STATES,

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

A.J. KRAMER

Federal Public Defender

ROSANNA M. TAORMINA

Assistant Federal Public Defender

Counsel of Record

Office of the Federal Public Defender

for the District of Columbia

625 Indiana Avenue, NW, Suite 550

Washington, DC 20004

Phone: (202) 208-7500

Rosanna_M_Taormina@fd.org

February 6, 2020

QUESTIONS PRESENTED

In Paroline v. United States, No 12-8561 — a case involving a request for

criminal restitution on behalf of “Amy,” a victim of digitally-distributed child

pornography — this Court granted certiorari limited to the question: “What, if any,

causal relationship or nexus between the defendant’s conduct and the victim’s harm

or damages must the government or the victim establish in order to recover

restitution under 18 U.S.C. § 2259?” 570 U.S. 931 (2013). The Court ultimately

held that restitution is “proper under [18 U.S.C.] § 2259 only to the extent the

defendant’s offense proximately caused the victim’s losses.” Paroline, 572 U.S. 434,

448 (2014).

Because the question presented did not extend to how restitution should be

determined if the proximate cause standard were adopted, the parties did not brief

the issue. The Court nevertheless offered numerous “guideposts” (since dubbed

“Paroline factors”) that district courts “might consider in determining a proper

amount of restitution,” but twice expressly declined to offer more specific guidance,

finding more precise instruction to be “neither necessary nor appropriate . . . at this

point in the law’s development.” Id. at 459-60; see also id. at 462 (declining to

provide “further detailed guidance at this stage in the law’s elaboration”). Since

Paroline, however, district courts have likened restitution analysis to “piloting a

small craft to safe harbor in a Nor’easter.” United States v. DiLeo, 58 F. Supp. 3d

239, 244 (E.D.N.Y. 2014). Throughout the country, restitution awards and

methodologies vary widely; a significant circuit split has developed; and

unwarranted disparities abound.

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This case presents two questions:

1.

Whether — in the context of a criminal restitution request on

behalf of a victim of child pornography — § 2259/Paroline

requires disaggregation of losses sustained as result of the

victim’s initial abuse, as distinct from those losses caused by the

continuing traffic in the victim’s image(s).

2.

Whether this Court should provide much needed guidance —

both substantive and procedural — as to how district courts

should apply the proximate cause standard adopted in Paroline

v. United States, 572 U.S. 434 (2014).

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PARTIES TO THE PROCEEDINGS

All parties to the most recent restitution proceedings appear in the caption of

the case on the cover page. Victim “Amy” had participated in earlier stages of the

restitution litigation (via petitions for writs of mandamus in the D.C. Circuit), but

made no appearance and took no part in the proceedings now under review.

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TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Parties to the Proceedings ............................................................................................ iii

Table of Contents .......................................................................................................... iv

Index of Appendices ...................................................................................................... vi

Table of Authorities ..................................................................................................... vii

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 2

Constitutional and Statutory Provisions Involved ....................................................... 2

Introduction ................................................................................................................... 6

Statement of the Case ................................................................................................. 10

A.

Amy ......................................................................................................... 10

B.

Procedural History ................................................................................. 11

C.

Paroline ................................................................................................... 13

D.

Post-Paroline Remand............................................................................ 17

E.

The D.C. Circuit’s Ruling ....................................................................... 20

Reasons for Granting the Petition .............................................................................. 23

I.

The D.C. Circuit’s Opinion Contravenes the Essential Holding of Paroline .. 23

II.

This Court Should Clarify Whether § 2259/Paroline Requires District Courts

to Disaggregate Losses Sustained as a Result of the Victim’s Initial Abuse . 26

III.

This Court Should Provide Much Needed Guidance To Lower Courts

Throughout the Country Struggling to Effectuate Paroline ........................... 28

A.

Confusion Amongst Lower Courts Has Resulted in Countless,

Materially Different Methodologies for Determining Restitution and

Unwarranted Sentencing Disparities Among Similarly Situated

Defendants .............................................................................................. 28

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B.

IV.

In Addition to Substantive Guidance, This Court Should Provide

Procedural Guidance, (1) Requiring District Courts to Articulate the

Methodologies and Specific Factual Findings Underlying Their

Restitution Orders to Better Enable Effective Appellate Review; and

(2) Making Clear that Paroline Does Not Prohibit the Use of Math in

Determining Restitution ........................................................................ 33

1.

A District Court Should Be Required to Explain the Basis for Its

Restitution Order, Beyond Simply Reciting the Paroline

Factors.......................................................................................... 33

2.

This Court Should Clarify that Paroline Does Not Forbid the

Use of Math in Determining or Reviewing Restitution Orders . 37

This Case Presents an Ideal Vehicle for Deciding Both Questions, Which

Are of Exceptional Importance ......................................................................... 39

Conclusion .................................................................................................................... 40

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INDEX OF APPENDICES

Appendix A: Decision of the court of appeals

United States v. Monzel, 930 F.3d 470 (D.C. Cir. 2019) .................................. 1a

Appendix B: Decision and order of the district court ($7,500 restitution)

United States v. Monzel, 209 F. Supp. 3d 73 (D.D.C. 2016) (memorandum

opinion); United States v. Monzel, D.D.C. No. 1:09-cr-243, Doc. 15 (Sept.

19, 2016) (order) .............................................................................................. 19a

Appendix C: Order of the court of appeals denying rehearing

United States v. Monzel, D.C. Cir. No. 16-3108, Doc. 1814929 (Nov. 8,

2019) ................................................................................................................ 26a

Appendix D: Order of the court of appeals denying rehearing en banc

United States v. Monzel, D.C. Cir. No. 16-3108, Doc. 1814930 (Nov. 8,

2019) ................................................................................................................ 27a

Appendix E: Decision and order of the district court ($5,000 restitution)

United States v. Monzel, D.D.C. No. 1:09-cr-243, Doc. 50 (Jan. 11, 2011).... 28a

Appendix F: Decision of the court of appeals on mandamus

United States v. Monzel, 641 F.3d 528 (D.C. Cir. 2011) ................................ 34a

Appendix G: Memorandum order of the district court ($0 restitution)

United States v. Monzel, D.D.C. No. 1:09-cr-243, Doc. 70 (Nov. 6, 2012) ..... 51a

Appendix H: Order of the court of appeals, remanding in light of Paroline

United States v. Monzel, D.C. Cir. No. 12-3100 (consol. 12-3093), Doc.

1497454 (Jun. 13, 2014) .................................................................................. 62a

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TABLE OF AUTHORITIES

Cases

Halo Electronics, Inc. v. Pulse Electronics Inc., 136 S. Ct. 1923 (2016) ............... 34

In re Sealed Case, 573 F.3d 844 (D.C. Cir. 2009) .................................................. 37

Paroline v. United States, 570 U.S. 931 (2013) ........................................ i, 6, 12, 13

Paroline v. United States, 572 U.S. 434 (2014) ..............................................passim

United States v. Ayer, No. 2:15-cr-86-APG-NJK, 2015 WL 7259765 (D. Nev.

Nov. 17, 2015) .................................................................................................... 29

United States v. Baslan, No. 13 CR 220(RJD), 2015 WL 1258158 (E.D.N.Y.

Mar. 17, 2015) ................................................................................................... 31

United States v. Berrios, No. 14-cr-682 (BMC), 2015 WL 5793480 (E.D.N.Y.

Oct. 1, 2015)....................................................................................................... 32

United States v. Berry, No. 1:18-cr-00107-AA, 2019 WL 5306960 (D. Or. Oct.

21, 2019) ............................................................................................................ 30

United States v. Bigley, 786 F.3d 11 (D.C. Cir. 2015) ........................................... 35

United States v. Brown, 610 F.3d 395 (7th Cir. 2010) .......................................... 36

United States v. Bordman, 895 F.3d 1048 (8th Cir. 2018) ................................... 26

United States v. Carter, 564 F.3d 325 (4th Cir. 2009) .......................................... 36

United States v. Chan, Cr. No. 15-00224 DKW, 2016 WL 370712 (D. Haw.

Jan. 29, 2016) .................................................................................................... 32

United States v. Clemans, No. 2:15-cr-00227-JAM, 2018 WL 4794166 (E.D.

Cal. Oct. 3, 2018) ............................................................................................... 30

United States v. Cooley, No. 4:14-CR-3041, 2014 WL 5872720 (D. Neb. Nov.

12, 2014) ............................................................................................................ 30

United States v. Crisostomi, 31 F. Supp. 3d 361 (D.R.I. 2014) ............................. 30

United States v. Daniel, No. 3:07-CR-142-O, 2014 WL 5314834 (N.D. Tex.

Oct. 17, 2014)..................................................................................................... 30

United States v. Debruzzi, Crim. No. 17-160 (DWF/KMM), 2019 WL

6975457 (D. Minn. Dec. 20, 2019) .................................................................... 31

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United States v. DiLeo, 58 F. Supp. 3d 239 (E.D.N.Y. 2014) ................... i, 7, 28, 29

United States v. Dunn, 777 F.3d 1171 (10th Cir. 2015) .................................. 22, 26

United States v. D.W., 198 F. Supp. 3d 18 (E.D.N.Y. 2016).................................. 31

United States v. Galan, 804 F.3d 1287 (9th Cir. 2015) ............................. 22, 26, 27

United States v. Gamble, No. 1:10-CR-137, 2015 WL 4162924 (E.D. Tenn.

July 9, 2015) ...................................................................................................... 32

United States v. George, 403 F.3d 470 (7th Cir. 2005) .......................................... 34

United States v. Hite, 113 F. Supp. 3d 91 (D.D.C. 2015) ................................ 17, 31

United States v. Hunter, 809 F.3d 677 (D.C. Cir. 2016) ....................................... 37

United States v. Kugler, CR 14-73-BLG-SPW, 2016 WL 816741 (D. Mont.

Feb. 29, 2016) .................................................................................................... 32

United States v. Loreng, 956 F. Supp. 2d 213 (D.D.C. 2013) ................................ 27

United States v. Merced, 603 F.3d 203 (3d Cir. 2010)........................................... 35

United States v. Miltier, No. 2:15cr151, 2016 WL 6821087 (E.D. Va. Nov.

17, 2016) ............................................................................................................ 29

United States v. Miner, No. 1:14-cr-33 (MAD), 2014 WL 4816230 (N.D.N.Y.

Sept. 25, 2014) ................................................................................................... 32

United States v. Miner, 617 F. App’x 102 (2d Cir. 2015) ...................................... 38

United States v. Mobasseri, No. 1:17CR138, 2019 WL 3807233 (N.D. Ohio.

Aug. 12, 2019).................................................................................................... 31

United States v. Monzel, 641 F.3d 528 (D.C. Cir. 2011) ............................. 2, 12, 39

United States v. Monzel, 209 F. Supp. 3d 73 (D.D.C. 2016) ....................... 1, 18, 19

United States v. Monzel, 930 F.3d 470 (D.C. Cir. 2019)

........................................................................ 1, 20, 21, 22, 23, 24, 25, 27, 36, 38

United States v. Moody, CR 417-256, 2018 WL 3887506 (S.D. Ga. Aug. 15,

2018) .................................................................................................................. 30

United States v. Olivieri, Crim. No. 09-743 (WHW), 2012 WL 1118763

(D.N.J. Apr. 3, 2012) ......................................................................................... 27

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United States v. Randjelovich, No. 2:13-CR-00403-TLN, 2015 WL 4095655

(E.D. Cal. July 7, 2015) ..................................................................................... 32

United States v. Romero-Medrano, No. 4:14-CR-050, 2017 WL 5177647

(S.D. Tex. Nov. 8, 2017) .................................................................................... 29

United States v. R.V., 157 F. Supp. 3d 207 (E.D.N.Y. 2016) ................................ 30

United States v. Safford, No. 1:17-CR-54, 2019 WL 4044038 (N.D.N.Y. Aug.

15, 2019) ...................................................................................................... 30, 31

United States v. Schultz, Cr. No. 14-10085-RGS, 2015 WL 5972421 (D.

Mass. Oct. 14, 2015) .......................................................................................... 31

United States v. Singletary, 649 F.3d 1212 (11th Cir. 2011) ................................ 34

United States v. Thomas, 498 F.3d 336 (6th Cir. 2007) ........................................ 36

Constitutional Provision and Statutes

U.S. Const. amend V (Due Process Clause) ............................................................ 2

18 U.S.C. § 2252 ................................................................................................. 7, 10

18 U.S.C. § 2259 ..............................................................................................passim

18 U.S.C. § 3553 ............................................................................................... 16, 33

18 U.S.C. § 3664 ................................................................................. 5, 8, 16, 33, 34

Other Authorities and Sources

25 C.J.S. Damages, § 14 ......................................................................................... 11

Brief for Amy, Paroline, 572 U.S. 434 (No. 12-8561), 2013 WL 6056611 ...... 13, 14

Brief for National Center for Missing and Exploited Children (“NCMEC”)

as Amicus Curiae in Support of Respondent Amy Unknown, Paroline,

572 U.S. 434 (No 12-8561), 2013 WL 6156518 ................................................ 13

Brief for the United States, Paroline, 572 U.S. 434 (No. 12-8561), 2013 WL

5425148 ....................................................................................................... 14, 15

Emily Bazelon, The Price of a Stolen Childhood, N.Y. Times Magazine,

Jan. 24, 2013 ............................................................................................... 10, 11

U.S. Dep’t of Justice, The National Strategy for Child Exploitation

Prevention and Interdiction: A Report to Congress (2010) .............................. 13

- ix -

IN THE

Supreme Court of the United States

MICHAEL M. MONZEL,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Michael Monzel respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the District of Columbia Circuit,

affirming the district court’s $7,500 restitution award — after first awarding

$5,000, then $0 — to child pornography victim “Amy.”

OPINIONS BELOW

The opinion of the United States Court of Appeals for which review is sought

appears at Pet. App. 1a-18a and is published at 930 F.3d 470 (D.C. Cir. 2019). The

ruling of the district court appears at Pet. App. 19a-23a and is published at 209 F.

Supp. 3d 73 (D.D.C. 2016).

The district court opinion explaining its initial $5,000 order appears at Pet.

App. 28a-33a and can be found at 2011 WL 10549405 (D.D.C. Jan. 11, 2011). The

Court of Appeals’ resolution of Amy’s resulting petition for writ of mandamus

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appears at 34a-50a and is published at 641 F.3d 528 (D.C. Cir. 2011), cert. denied,

565 U.S. 1072 (2011) (“Monzel I”).

The district court’s denial of the government’s renewed restitution request

(resulting in a restitution award of $0) after remand from Monzel I appears at Pet.

App. 51a-61a and can be found at 2012 WL 12069547 (D.D.C. Nov. 6, 2012). The

Court of Appeals’ order remanding the government’s subsequent appeal and Amy’s

second mandamus petition (after briefing and argument) in light of this Court’s

opinion in Paroline v. United States, 134 S. Ct. 1710 (2014), appears at Pet. App.

62a-63a. The resulting remand proceedings are the subject of the Court of Appeals’

judgment of which Petitioner now seeks review.

JURISDICTION

The D.C. Circuit issued its judgment (Pet. App. 1a-18a) on July 19, 2019.

Orders denying panel rehearing and rehearing en banc (Pet. App. 26a-27a) were

issued on November 8, 2019. The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1.

The Fifth Amendment provides in relevant part that “[n]o person

shall … be deprived of life, liberty, or property, without due process of law.” U.S.

Const. amend. V.

2.

provided:

At the time of Petitioner’s arrest and sentencing, 18 U.S.C. 2259,

(a) In general.--Notwithstanding section 3663 or 3663A, and in

addition to any other civil or criminal penalty authorized by law, the

court shall order restitution for any offense under this chapter.

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(b) Scope and nature of order.—

(1) Directions.--The order of restitution under this section shall

direct the defendant to pay the victim (through the appropriate court

mechanism) the full amount of the victim’s losses as determined by the

court pursuant to paragraph (2).

(2) Enforcement.--An order of restitution under this section shall

be issued and enforced in accordance with section 3664 in the same

manner as an order under section 3663A.

(3) Definition.--For purposes of this subsection, the term “full

amount of the victim’s losses” includes any costs incurred by the victim

for—

(A) medical services relating to physical, psychiatric, or

psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child

care expenses;

(D) lost income;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate

result of the offense.

(4) Order mandatory.--(A) The issuance of a restitution order

under this section is mandatory.

(B) A court may not decline to issue an order under this section

because of—

(i) the economic circumstances of the defendant; or

(ii) the fact that a victim has, or is entitled to, receive

compensation for his or her injuries from the proceeds of

insurance or any other source.

(c) Definition.--For purposes of this section, the term “victim” means the

individual harmed as a result of a commission of a crime under this

chapter, including, in the case of a victim who is under 18 years of age,

incompetent, incapacitated, or deceased, the legal guardian of the victim

or representative of the victim’s estate, another family member, or any

other person appointed as suitable by the court, but in no event shall the

defendant be named as such representative or guardian.

-3-

3.

On December 7, 2018, 18 U.S.C. § 2259 was amended to provide, in relevant

part:

(b) Scope and nature of order.—

(1) Directions.--Except as provided in paragraph (2), the order of

restitution under this section shall direct the defendant to pay the

victim (through the appropriate court mechanism) the full amount of

the victim’s losses.

(2) Restitution for trafficking in child pornography.--If the

defendant was convicted of trafficking in child pornography, the court

shall order restitution under this section in an amount to be

determined by the court as follows:

(A) Determining the full amount of a victim’s losses.--The

court shall determine the full amount of the victim’s losses

that were incurred or are reasonably projected to be incurred

by the victim as a result of the trafficking in child

pornography depicting the victim.

(B) Determining a restitution amount.--After completing the

determination required under subparagraph (A), the court

shall order restitution in an amount that reflects the

defendant's relative role in the causal process that underlies

the victim’s losses, but which is no less than $3,000.

…

(C) Termination of payment.--A victim’s total aggregate

recovery pursuant to this section shall not exceed the full

amount of the victim's demonstrated losses. After the victim

has received restitution in the full amount of the victim’s losses

as measured by the greatest amount of such losses found in any

case involving that victim that has resulted in a final

restitution order under this section, the liability of each

defendant who is or has been ordered to pay restitution for such

losses to that victim shall be terminated. The court may require

the victim to provide information concerning the amount of

restitution the victim has been paid in other cases for the same

losses.

(c) Definitions.—

…

(2) Full amount of the victim’s losses.--For purposes of this

-4-

subsection, the term “full amount of the victim’s losses” includes any

costs incurred, or that are reasonably projected to be incurred in the

future, by the victim, as a proximate result of the offenses involving

the victim, and in the case of trafficking in child pornography offenses,

as a proximate result of all trafficking in child pornography offenses

involving the same victim, including—

(A) medical services relating to physical, psychiatric, or

psychological care;

(B) physical and occupational therapy or rehabilitation;

(C) necessary transportation, temporary housing, and child

care expenses;

(D) lost income;

(E) reasonable attorneys’ fees, as well as other costs incurred;

and

(F) any other relevant losses incurred by the victim.

4.

Section 3664(e) of Title 18, United States Code, provides in relevant part:

Any dispute as to the proper amount or type of restitution shall be

resolved by the court by the preponderance of the evidence. The

burden of demonstrating the amount of the loss sustained by a victim

as a result of the offense shall be on the attorney for the Government.

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INTRODUCTION

In Paroline v. United States, No 12-8561 — a case involving a request for

criminal restitution on behalf of “Amy,” a victim of digitally-distributed child

pornography — this Court granted certiorari limited to the question: “What, if any,

causal relationship or nexus between the defendant’s conduct and the victim’s harm

or damages must the government or the victim establish in order to recover

restitution under 18 U.S.C. § 2259?” 570 U.S. 931 (2013). The Court ultimately

held that restitution is “proper under [18 U.S.C.] § 2259 only to the extent the

defendant’s offense proximately caused the victim’s losses.” Paroline, 572 U.S. 434,

448 (2014). “[A] court applying § 2259 should [therefore] 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 458. In cases involving simple

possession, “[t]he amount would not be severe . . . , given the nature of the causal

connection between the conduct of a possessor [of child pornography] and the

entirety of the victim’s general losses from the trade in her images, which are the

product of the acts of thousands of offenders.” Id.

Because the question presented did not extend to how restitution should be

determined if the proximate cause standard were adopted, the parties did not brief

the issue. The Court nevertheless waded into the morass, offering numerous

“guideposts” (since dubbed “Paroline factors”) that district courts “might consider in

determining a proper amount of restitution.” Id. at 459-60. The Court twice

expressly declined to offer more specific guidance, finding more precise instruction

to be “neither necessary nor appropriate . . . at this point in the law’s development.”

-6-

Id.; see also id. at 462 (declining to provide “further detailed guidance at this stage

in the law’s elaboration”).

Since Paroline district courts have likened restitution analysis to “piloting a

small craft to safe harbor in a Nor’easter.” United States v. DiLeo, 58 F. Supp. 3d

239, 244 (E.D.N.Y. 2014). Throughout the country, restitution awards and

methodologies vary widely; a significant circuit split has developed; and

unwarranted disparities abound. These inconsistencies persist despite Congress’s

December 2018 amendment of § 2259, which set a floor of $3,000 for restitution

awards in child pornography cases, but retained the very same proximate cause

standard/analysis set forth in Paroline. Additional guidance is necessary for the

government and district courts to properly perform their statutorily-mandated

duties, to gain some semblance of uniformity for/amongst similarly-situated

criminal defendants, and — most importantly — to meet the demands of due

process.

In December 2009, Petitioner pleaded guilty to a two-count superseding

information, charging him with possession of child pornography, 18 U.S.C.

2252(a)(4)(B), and distribution, § 2252(a)(2). Two of the victims portrayed in the

images possessed (but not distributed) by Petitioner — “Amy” and “Vicky” — sought

restitution pursuant to 18 U.S.C. § 2259. Amy’s images were originally created and

digitally distributed by her uncle (to whom Petition has no connection), who began

sexually abusing Amy in 1993, when she was only four. Petitioner was found in

possession of one still image of Amy upon his arrest in October 2009; he did not

distribute the image; and the government identified no additional aggregating

-7-

factors associated with his possession (e.g., involvement in image production,

contact or attempted contact with Amy, use of image in grooming activity, etc.).

The district court’s restitution order with respect to Amy — which began as $5,000,

then $0, and is now $7,500 — has been the subject of extensive litigation and is the

subject of this Petition.

After the district court twice found — employing the same proximate cause

standard that would be adopted years later by this Court in Paroline — that the

government had not met its burden under 18 U.S.C. § 3664(e) “of demonstrating [by

a preponderance of the evidence] the amount of the loss sustained by a victim as a

result of the offense,” the D.C. Circuit held Petitioner’s case in abeyance pending

this Court’s resolution of Paroline and ultimately remanded it, with instructions to

revisit the restitution issue in light of the Court’s opinion.

On remand, after extensive briefing and statistical analysis presented by the

defense (based on Amy’s own analysis presented to this Court in Paroline), the

district court awarded Amy $7,500 in restitution. Though the court recited the

Paroline factors, it “accept[ed]” — without explanation and in the face of evidence to

the contrary — the government’s claim that no reliable data existed relevant to the

most instructive factors. The court then listed five seemingly random cases from

around the country that it had reviewed — none of which involved Amy and all of

which employed different methodologies for calculating restitution, to the extent

any is discernable — with an average award of $7,432.63. The court did not

elaborate on the reasoning underlying its $7,500 award, identify a methodology, or

address any of the arguments raised in Petitioner’s pleadings. Significantly — in

-8-

light of the split in the circuits that has developed — the district court made no

attempt to disaggregate losses sustained as a result of the initial physical abuse

Amy suffered at the hands of her uncle. The court of appeals affirmed.

Beyond the innumerable methodological disparities that exist amongst

district courts throughout the country, the courts of appeals are now split over the

discreet issue of whether, in determining “the amount of the victim’s losses caused

by the continuing traffic in the victim’s image,” victims/the government/courts need

to “disaggregat[e] losses sustained as a result of the initial physical abuse” — a

task this Court in Paroline acknowledged would be “complicat[ed],” but assumed

would be done. 572 U.S. at 460, 449. As Petitioner argued below, and as the Ninth

and Tenth Circuits have held consistent with Paroline, it is critical that courts

disaggregate losses attributable to a victim’s original abuse so that a defendant

like Petitioner, a mere possessor, is not unjustly burdened with costs that he had

no role in bringing about. The D.C. Circuit’s approach — merely requiring the

district court to mention whether the defendant was involved in the victim’s initial

abuse, without actually disaggregating the losses attributable to that abuse —

reduces this important analytical undertaking to a toothless procedural

pronouncement.

The questions presented are urgently in need of resolution by this Court, as

they impact thousands of federal defendants who are statutorily mandated to pay

restitution under § 2259. The issues are cleanly presented in this case, which was

extensively briefed below, as Petitioner’s possession of a singular image with no

aggravating factors makes him the least culpable child pornography defendant

-9-

(i.e., the “floor”) still subject to § 2259 and removes all factual complications from

the Court’s consideration.

STATEMENT OF THE CASE

On December 10, 2009, Petitioner pleaded guilty to one count of possessing

child pornography, 18 U.S.C. § 2252(a)(4)(B), and one count of distribution,

§ 2252(a)(2). On May 19, 2010, the district court sentenced him to concurrent terms

of ten years’ imprisonment and ten years of supervised release.

Two of the victims portrayed in the images possessed (but not distributed) by

Petitioner — “Amy” and “Vicky” — sought restitution pursuant to 18 U.S.C. §

2259. 1 The district court’s restitution $7,500 award to “Amy” — of whom Mr.

Monzel possessed one image — is the subject of this Petition.

A.

Amy

In 1993, when Amy was four years old, her uncle began sexually abusing her,

photographing the abuse, and digitally distributing the images. It was not until

Amy was nine that her uncle was arrested, sentenced, and ordered to pay $6,325 in

restitution — an amount $1,175 less than Petitioner in this case. See Paroline, 572

U.S. at 469 n.4 (Roberts, C.J., dissenting); see also Emily Bazelon, The Price of a

Stolen Childhood, N.Y. Times Magazine, Jan. 24, 2013, available at https://www.

All references to § 2259 are to the version in effect from April 24, 1996 to

December 6, 2018 — as set forth in full above — unless otherwise noted. As

explained above, the December 7, 2018 amendments to § 2259 have no substantive

effect on the issues raised here or their importance going forward. The

amendments retain the Paroline causation analysis and merely set a $3,000 floor

for child pornography-related restitution awards.

1

- 10 -

nytimes.com/2013/01/27/magazine/how-much-can-restitution-help-victims-of-childpornography.html.

When Amy was 17, she learned for the first time that her uncle had

distributed her images over the Internet. Id. In 2008, when Amy was 19, she began

seeking criminal restitution from those convicted of possessing and distributing her

images. Id. In that year, she drafted a Victim Impact Statement and her attorneys

procured a psychological evaluation and economic loss report, which attempted to

project and monetize the aggregate harm Amy has and will experience over her

lifetime (to age 81) as a result of her uncle’s conduct and the continuing circulation

of her images. These items were submitted to the district court in this case in June

2010, along with Amy’s original request for restitution (under the theory of joint

and several liability) of $3,263,758 in aggregate lifetime losses.

As of February 2015, Amy had received approximately $1,789,525.87 from

convicted federal defendants. (ECF:99.1.) 2 This Court has recognized that Amy’s

offenders “to date easily number in the thousands.” Id. at 440.

B.

Procedural History

The district court’s current $7,500 restitution award is its third attempt at

setting restitution in this case. In January 2011, the district court awarded Amy

$5,000 in “nominal damages,” 3 despite acknowledging that there was “no evidence

The citation “ECF:X.Y” refers to the Pacer/ECF document number (X) and

page (Y) in the district court case from which this petition arises, No. 1:09-cr-00243GK (D.D.C.).

2

Citing 25 C.J.S. Damages, § 14 (asserting that where a party “establishes a

wrong for actual losses therefrom, he or she is entitled to nominal damages at

3

- 11 -

upon which the Court could reasonably calculate the measure of harm done to

[Amy] proximately caused by the Defendant’s conduct.” (Pet. App. 31a (internal

quotation marks omitted).) In United States v. Monzel, 641 F.3d 528 (D.C. Cir.

2011) (“Monzel I”), after rejecting Amy’s joint and several liability argument, the

court of appeals instructed the district court “to consider anew the amount of

[Amy’s] losses attributable to Monzel,” id. at 544, as the $5,000 figure was arbitrary

in light of the district court’s internally-inconsistent explanation. Though the court

of appeals “express[ed] no view as to the appropriate level of restitution,” it

“emphasize[d] that in fixing the amount[,] the district court must rely upon some

principled method for determining the harm Monzel proximately caused.” Id.

On remand, the district court denied Amy’s restitution request altogether,

observing both that “[t]here is absolutely no evidence as to what degree Monzel’s

conduct contributed to the injuries suffered by Amy” and that “the Government has

not presented any principled calculation, formula, or procedure which would limit

the [victim’s] financial losses to those ‘traceable to Monzel.’” (Pet. App. 58a-59a

(quoting Monzel I, 641 F.3d at 537).) The government appealed and Amy sought

mandamus (consolidated under D.C. Cir. Case No 12-3093, “Monzel II”).

On June 27, 2013, after oral argument but before Monzel II was decided, this

Court granted certiorari in Paroline v. United States, No. 12-8561, limited to the

question: “What, if any, causal relationship or nexus between the defendant’s

least . . . where the evidence fails to show the extent of the resulting damages”). In

choosing the $5,000 figure, the court referenced a single case in which Amy and

Vicky were awarded $3,000. (Pet. App. 32a.)

- 12 -

conduct and the victim’s harm or damages must the government or the victim

establish in order to recover restitution under 18 U.S.C. § 2259.” 570 U.S. 931

(2013). The court of appeals held Monzel II in abeyance.

C.

Paroline

In Paroline, Amy argued for joint and several liability; the government and

Paroline advocated for proximate causation.

In her brief to this Court, Amy performed a rough application of the

proximate cause requirement to impress upon the Court the effect of such a rule:

Amy’s images have been identified in 3,200 American federal and state

criminal cases. [Brief for National Center for Missing and Exploited

Children (“NCMEC”) as Amicus Curiae in Support of Respondent Amy

Unknown at 11, 18, Paroline, 572 U.S. 434 (No 12-8561), 2013 WL

6156518, at *11, 18. 4] Unfortunately these cases represent just a few

of the child pornography criminals who are harming Amy, because law

enforcement can only apprehend a small fraction of those who

distribute and possess Amy’s images. See [U.S. Dep’t of Justice, The

National Strategy for Child Exploitation Prevention and Interdiction: A

Report to Congress (2010)] at 23-25. Even ten percent is a generous

assumption. See id. at 14 (9,793,430 domestic Internet Protocol

addresses trading child pornography). Amy is harmed not only by

child pornography crimes committed in this country, but also by those

committed overseas. A fair estimate is that 45% of the child

pornography criminals are American. Id. at 14 . . . . Based on these

figures, a ballpark estimate of petitioner’s “market share” of Amy’s

harm is 1/71,000 and his restitution obligation to Amy would be a

trifling amount: about $47. [FN19]

FN19

$3,367,854 x 1/3,200 x 1/10 x 45/100 = $47. . . .

NCMEC reviews, on behalf of law enforcement, child pornography

collections seized from individuals to identify known victims.

4

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Brief for Amy at 64-65, Paroline, 572 U.S. 434 (No. 12-8561), 2013 WL 6056611, at

*64-65. 5

This Court ultimately adopted proximate causation, holding — as the D.C.

Circuit had in Monzel I — that “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.” 572 U.S. at 458 (emphasis added). The

Court’s holding was driven by “the bedrock principle that restitution should reflect

the consequences of the defendant’s own conduct, . . . not the conduct of thousands

of geographically and temporally distant offenders acting independently, and with

whom the defendant had no contact.” Id. at 455.

Because the question presented had not extended to how restitution should

be determined if proximate causation were adopted, the parties did not brief the

issue to any appreciable extent. Beyond Amy’s “market share” example (above), the

government’s brief addressed potential considerations in only one paragraph. See

Brief for the United States at 48, Paroline, 572 U.S. 434 (No. 12-8561), 2013 WL

5425148, at *49.

Nevertheless, the Court offered certain “guideposts” that courts “might

consider” in contextualizing the defendant’s “relative causal role,” but declined to

provide “further detailed guidance at this stage in the law’s elaboration.” 572 U.S.

at 459-60. The Court explained that “district courts might, as a starting point,

Amy’s calculation does not account for, inter alia, the damage caused by her

uncle or future offenders, which, if included, would make the market share amount

even lower.

5

- 14 -

determine the amount of the victim’s losses caused by the continuing traffic in the

victim’s images . . . then set an award of restitution in consideration of factors that

bear on the relative causal significance of the defendant’s conduct in producing

those losses.” Id. at 460 (emphasis added). The factors/guideposts included

“reasonable predictions of the number of future offenders likely to be caught and

convicted for crimes contributing to the victim’s general losses” and “any available

and reasonably reliable estimate of the broader number of offenders involved (most

of whom will, of course, never be caught or convicted),” id. — two factors that the

Court itself added to the list of considerations proffered by the government in its

brief. 6 Compare Brief for the United States at 48, 2013 WL 5425148, at *49.

With respect to determining “the amount of the victim’s losses caused by the

continuing traffic in the victim’s images,” the Court acknowledged that

“[c]omplications may arise in disaggregating losses sustained as a result of the

initial physical abuse,” but concluded that “those questions may be set aside for

present purposes.” 572 U.S. at 449. Resulting restitution awards “would not be

severe in a case like this [where Paroline possessed two images], given the nature of

the causal connection between the conduct of a possessor like Paroline and the

entirety of the victim’s general losses from the trade in her images, which are the

The other Paroline factors were: “the number of past criminal defendants

found to have contributed to the victim’s general losses; . . . 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.” 572 U.S. at 460.

6

- 15 -

product of the acts of thousands of offenders”; but they should not be “token or

nominal.” Id. at 458-59.

In dissent, Chief Justice Roberts (joined by Justices Scalia and Thomas)

lamented that “[t]he statue as written allows no recovery; we ought to say so, and

give Congress a chance to fix it.” Id. at 472. He reasoned that “[w]hen it comes to

Paroline’s crime—possession of two of Amy’s images—it is not possible to do

anything more than pick an arbitrary number for that ‘amount.’ And arbitrary is

not good enough for the criminal law.” Id. at 463 (quoting 18 U.S.C. § 3664(e)); see

also id. at 471 (comparing to § 3553(a) sentencing standards that constrain

discretion and ensure due process).

Of the factors the majority suggested district courts consider, the dissent

found the “estimate of the total number of persons involved in [Amy’s] harm” to be

the “only” one “relevant,” “because Paroline’s relative significance can logically be

measured only in light of everyone who contributed to Amy’s injury — not just those

who have been, or will be, caught and convicted.” Id. at 471. The dissent observed,

as had Amy, that if courts apply the proximate cause requirement (with which the

dissent agreed in principle), awards would likely be no more than the $47 she

proffered. “The majority says that courts should not impose ‘trivial restitution

orders,’ . . . but it is hard to see how a court fairly assessing this defendant’s relative

contribution could do anything else.” 7 Id.

This complication was later remedied by Congress in its December 2018

amendments to § 2259, which set $3,000 as the floor for such awards — $4,500 less

than the award in this case.

7

- 16 -

D.

Post-Paroline Remand

After Paroline, the D.C. Circuit remanded Monzel II without a merits

opinion. (Pet. App. 62a-63a.) The government thereafter filed a supplemental

request for restitution with supporting documentation virtually identical to its

previous requests. Unlike in previous proceedings, Amy did not participate or

communicate with the government. In parallel proceedings involving a possessor of

four of Amy’s images, however, Amy agreed that $5,000 in criminal restitution was

appropriate. United States v. Hite, 113 F. Supp. 3d 91 (D.D.C. 2015). 8

The government did not specify an amount of restitution it was requesting on

Amy’s behalf, nor did it suggest how the court should arrive at a restitution figure.

It did, however, agree that Amy’s losses “should exclude. . . losses attributable to

the original abuse, as opposed to the child pornography circulation.” (ECF:94.8.) It

represented that it did not have “sufficient, reliable date from which to make

reasonable estimates” of future defendants and/or total number of offenders.

(ECF:94.9.)

Petitioner responded, inter alia, that there were in fact data from which to

make projections — pointing to Amy’s Paroline brief, which cited such data

(including from sources published by the Department of Justice), and submitting

updated NCMEC statistics. Using that data, Petitioner provided proposed

disaggregation calculations (including disaggregation of losses caused by Amy’s

8

Amy is the victim in the “Misty” series.

- 17 -

original abuse) for the court to consider in evaluating Petitioner’s relative causal

role. (ECF:102; ECF:109.)

In a memorandum opinion, the district court awarded Amy $7,500

restitution. United States v. Monzel, 209 F. Supp. 3d 73 (D.D.C. 2016) (Pet. App.

19a-23a.)

In arriving at its starting $3,243,195 aggregate loss figure — which is/was

supposed to represent “the amount of the victim’s losses caused by the continuing

traffic in the victim’s images,” Paroline, 572 U.S. at 460 (cited by district court at

209 F. Supp. 3d at 75) — the court did not address, inter alia, the government’s

concession that the figure “should exclude . . . losses attributable to the original

abuse” (ECF:94.8), as the defense had repeatedly argued. The court instead took

Amy’s total lifetime loss figure of $3,263,758 — which included losses resulting from

her original abuse and thus did not represent “losses caused by the continuing

traffic in the victim’s images” — and subtracted $20,563 for attorney’s fees and

other costs the court believed (erroneously) to have been included in the $3,263,758

figure.

In listing the data responsive to the Paroline factors, the court “accept[ed]”

the government’s factual representation regarding the availability of data to

estimate/project future and total offenders. 209 F. Supp. 3d at 76. It did not

address Petitioner/Amy’s data to the contrary.

The court acknowledged that — beyond his possession of one image —

Petitioner’s offense conduct involved no aggravating factors. It thus concluded that

Petitioner’s “‘contribution to the causal process underlying the victim’s losses was

- 18 -

very minor, both compared to the combined acts of all other relevant offenders, and

in comparison to the contributions of other individual offenders, particularly

distributors (who may have caused hundreds or thousands of further viewings) and

the initial producer of the child pornography.’” Id. at 76-77 (quoting Paroline).

The court next cited five seemingly random district court cases from around

the country (of 38 post-Paroline published opinions), with an average restitution

award of $7,370.13. 9 Id. at 77. The court did not note the methodologies of the

various courts (all of which differed), nor did it reveal that none of the cases

involved Amy (i.e., they involved wholly different victims with wholly different

alleged losses).

The court concluded that $7,500 was appropriate “[i]n light of the parties’

arguments, the relevant Paroline factors, . . . the information provided regarding

prior restitution awards for Amy” 10 and “Defendant’s causal - but minor -- role in

Amy’s ongoing losses resulting from the continued trafficking of her images.” Id.

The court did not elaborate on its reasoning or address any arguments raised in

Petitioner’s pleadings. Monzel appealed.

This number represents the average award based on the parenthetical

information listed by the district court. That information was inaccurate, however,

resulting in a corrected average of $7,432.63.

9

With respect to the consideration of prior/other restitution awards, the

Paroline dissent

10

- 19 -

E.

The D.C. Circuit’s Ruling

The D.C. Circuit found that the district court committed no error. United

States v. Monzel, 930 F.3d 470 (D.C. Cir. 2019) (“Monzel III”). Its reasoning is

addressed briefly here and more pointedly below.

The D.C. Circuit acknowledged that it was “not the first, and surely will not

be the last, court to wrestle with giving practical effect to Section 2259’s proximatecause test for mandatory restitution in the context of child-pornography offenses.”

930 F.3d at 478. Quoting — but decontextualizing — this Court’s opinion in

Paroline, the court observed that where “the defendant [i]s a non-distributing

possessor of an image that thousands have trafficked,” “the perpetrator’s relative

share ‘[sh]ould not be severe,’ but neither should it be ‘token or nominal.’” Id.

(quoting Paroline, 572 U.S. at 458-59). “Instead, it should be ‘reasonable and

circumscribed,’ geared to the statute’s dual purposes of ‘helping the victim achieve

eventual restitution for all her child-pornography losses and impressing upon

offenders the fact that child-pornography crimes, even simple, possession, affect real

victims.’” Id. at 478-79 (quoting Paroline, 572 U.S. at 459).

The court twice asserted that the district court first “calculat[ed] Amy’s total

losses from the continued trafficking of her image,” resulting in $3,243,195 in

losses, id. at 478; see also id. at 479 — though the district court never claimed to

have “disaggregate[ed] losses sustained as a result of [Amy’s] initial physical

abuse,” Paroline, 572 U.S. at 449 — a necessary preliminary step for determining

and separating out those losses attributable to trafficking. According to the court of

appeals, the district court then “marched carefully through each of Paroline’s

- 20 -

factors,” 930 F.3d at 479, though the district court had merely acknowledged the

factors and simply “accept[ed]” — without explanation in the face of contrary

evidence — the government’s representations regarding the unavailability of data

responsive to the most instructive factors. According to the D.C. Circuit, such a

recitation “is all that Paroline requires.” 930 F.3d at 479.

Indeed, according to Monzel III, district courts should “generally” feel “free to

disregard” two of the Paroline factors — a rough projection of those likely to be

convicted in the future and a rough estimate of the total number of persons involved

in the victim’s harm (the two factors the Paroline Court added to the government’s

list of potential considerations, the latter being the “only” factor the dissent

considered to be “relevant” to the analytical framework adopted by the majority, 572

U.S. at 471 (Roberts, C.J., disseting)) — as both uninstructive and unknowable. 930

F.3d at 481-82. According to Monzel III, such factors are uninstructive, because

they “are aimed mainly at preventing over-compensation of the victim, which is not

an issue in . . . many cases[].” Id. at 482. The factors are apparently “unknowable,”

not based on the evidence and data presented in Petitioner’s case (which, again, was

largely based on the data Amy presented to this Court in Paroline and ignored by

both the district court and court of appeals), but based on the findings of numerous

unrelated district courts in which neither the government nor the defendant had

even attempted to marshal any data or analysis responsive to the Paroline factors

in question.

Instead of attempting to estimate future convictions and/or the universe of

Amy’s offenders, the Monzel III court opinioned that district courts should consider

- 21 -

factors such as, inter alia, “the length of [the defendant’s] involvement in child

pornography, whether he displayed a pattern of offenses, and whether he has

distributed other images,” 930 F.3d at 481 — factors that may be relevant to a

defendant’s incarceratory sentence, but are primarily focused on the potential harm

to others as opposed to the particular victim seeking restitution.

The D.C. Circuit disagreed with the Ninth and Tenth Circuits, both of which

have held — based directly on Paroline, see, e.g., 572 U.S. at 449 (defining a victim’s

“general losses” as those “that stem from the ongoing traffic in the images as a

whole,” noting that “[c]omplications may arise in disaggregating losses sustained as

a result of the initial physical abuse,” but setting those “aside for present purposes”

(emphasis added)) — that district courts must affirmatively disaggregate the harm

caused by the victim’s abuser — here, Amy’s uncle. See United States v. Galan, 804

F.3d 1287 (9th Cir. 2015); United States v. Dunn, 777 F.3d 1171 (10th Cir. 2015). 11

In the D.C. Circuit’s view, “Paroline requires no more” than the district court’s mere

acknowledgement that Petitioner was not connected to the initial production of

Amy’s images. 930 F.3d at 483.

The court concluded by asserting that Petitioner’s position on appeal “fails to

come to grips with [the fact] that the harm to Amy became greater, not less, when

[Petitioner] joined the ranks of perpetrators, reinflicting and perpetuating her

trauma,” 930 F.3d at 487 — a “fact” to which neither Amy (who has always

contended that her aggregate lifetime loss projection is static, and who has never

The court’s attempt to artificially limit the Tenth Circuit’s holding in

Dunn, see Monzel III, 930 F.3d at 484 n.2, does not withstand scrutiny.

11

- 22 -

contended that her claimed losses flowed and/or increased from any knowledge of

Petitioner or his conduct) nor this Court subscribes. See, e.g., Paroline, 572 U.S. at

454-57; see also id. at 468 (“Nothing in the record comes close to establishing that

Amy would have suffered less if Paroline had not possessed her images, let alone

how much less. . . . Amy’s injury is indivisible.”).

Petitioner sought panel rehearing and rehearing en banc. On November 8,

2019, the petitions were denied. (Pet. App. 26a-27a.)

Petitioner now seeks review on the merits of the D.C. Circuit’s decision.

REASONS FOR GRANTING THE PETITION

I.

The D.C. Circuit’s Opinion Contravenes the Essential Holding of

Paroline.

The D.C. Circuit’s opinion in Monzel III and the district court’s underlying

memorandum exemplify how courts around the country are nearly universally

perverting the essential holding of Paroline.

The D.C. Circuit opens its analysis in Monzel III by asserting that, under

Paroline, restitution awards in this area should be “geared to the statute’s dual

purposes of ‘helping the victim achieve eventual restitution for all her childpornography losses and impressing upon offenders the fact that child-pornography

crimes . . . affect real victims.’” 930 F.3d at 478-79 (emphasis added) (quoting

Paroline, 572 U.S. at 459). But the essential holding of Paroline — which this Court

relayed repeatedly — was that those purposes must be counterbalanced by the

“bedrock principle that restitution should reflect the consequences of the

defendant’s own conduct, . . . not the conduct of thousands of geographically and

- 23 -

temporally distant offenders acting independently.” 572 U.S. at 455; see also id. at

462 (“[D]efendants should be held to account for the impact of their conduct on

[child pornography] victims, but . . . should [only] be made liable for the

consequences and gravity of their own conduct, not the conduct of others.”).

Otherwise, Amy’s plea for joint and several liability would have prevailed. Indeed,

the Paroline Court expressly rejected the argument the D.C. Circuit embraces,

stating: “To be sure, the statute states a strong restitutionary purpose; but that

purpose cannot be twisted into a license to hold a defendant liable for an amount

drastically out of proportion to his own individual causal relation to the victim’s

losses.” Id. at 461; accord id. at 462 (district courts must be “faithful to the

competing principles at stake”).

Nowhere in its opinion does the D.C. Circuit acknowledge Paroline’s

offsetting considerations. Instead, it both rejects the Paroline factors that would

put a defendant’s causal role in context, see 930 F.3d at 482, and expands — well

beyond any other court — the factors courts should consider, to include several that

bear no relation to a particular victim’s harm, but are more appropriate for

incarceratory sentencing, see id. at 481 (courts should consider “the length of

[defendant’s] involvement in child pornography, whether he displayed a pattern of

offenses, and whether he has distributed other images”).

The Monzel III court spends much of its opinion arguing against Paroline

itself. First, it rejects as relevant those Paroline factors — “the number of future

offenders” and “the broader number of offenders involved” — that this Court itself

added to those proposed by the government; the latter being the “only” factor truly

- 24 -

“relevant, because [a defendant’s] relative significance can logically be measured

only in light of everyone who contributed to Amy’s injury — not just those who have

been, or will be, caught and convicted.” 572 U.S. at 471 (Roberts, C.J., dissenting).

The court says these factors are “aimed mainly at preventing over-compensation of

the victim, which is not an issue in this case (or in many cases).” 930 F.3d at 482.

But overcompensation is mentioned nowhere in Paroline. The factors were added

by this Court because they provide crucial context for determining “the defendant’s

relative role in the causal process.” Id. at 458 (emphasis added); see also id. at 459

(“[A] 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.”). And though it may be impossible — as Paroline itself

acknowledged — to determine these numbers with precision, considering them in

the broadest of terms undermines the district court’s $7,500 award. Paroline

recognized no less than 11 times that Amy’s offenders “to date easily number in the

thousands.” 12 572 U.S. at 440. But the district court’s award effectively assumes

that Petitioner was one of 432 people ($3,243,195/$7,500) who have harmed and will

ever harm Amy. The need to avoid “trivial” awards, 572 U.S. at 460, alone cannot

sustain the $7,500 figure, as there is no basis for deeming that figure the “floor” for

non-trivial awards, yet given the district court’s finding that Petitioner was among

12

Amy estimated 71,111 worldwide offenders to date. See supra.

- 25 -

the least culpable offenders (A:239-40), that is the practical effect of the court’s

opinion. 13

II.

This Court Should Clarify Whether § 2259/Paroline Requires District

Courts to Disaggregate Losses Sustained as a Result of the Victim’s

Initial Abuse.

Review by this Court with respect to this issue is necessary for at least two

reasons: first, because there is an entrenched circuit split over this issue; and

second, because the D.C. Circuit takes a position that conflicts with this Court’s

opinion in Paroline and is contrary to § 2259’s statutory text.

The D.C. Circuit splits with the Ninth and Tenth Circuits who have held,

consistent with Paroline, that district courts must affirmatively disaggregate the

harm caused by the victim’s abuser. See United States v. Dunn, 777 F.3d 1171

(10th Cir. 2015); United States v. Galan, 804 F.3d 1287 (9th Cir. 2015). The D.C.

Circuit joins the Eight Circuit in United States v. Bordman, 895 F.3d 1048, 1058-59

(8th Cir. 2018), in holding otherwise.

The Paroline Court defined a victim’s “general losses” as those “that stem

from the ongoing traffic in her images as a whole,” noting that “[c]omplications may

arise in disaggregating losses sustained as a result of the initial physical abuse,”

but setting those “aside for present purposes.” 572 U.S. at 449. As the Ninth

Circuit observed, “[i]f losses caused by [a possessor] were not to be separated from

those caused by the original abuser, there would be no complications because there

As noted above, Congress has since amended § 2259, setting a statutory

floor of $3,000. Because it did not change the standard for applying § 2259,

however, the $7,500 figure approved in Monzel III would effectively supersede

Congress’s judgment, at least within the D.C. Circuit.

13

- 26 -

would be no need to disaggregate. Thus, the Court plainly perceived a need for

separation.” 804 F.3d at 1290. Moreover, the Court repeatedly emphasized “the

bedrock principle that restitution should reflect the consequences of the defendant’s

own conduct,” not the conduct of others. 572 U.S. at 455. Such a goal cannot be

achieved without grappling — on the record and based on record facts — with the

relative culpability of the victim’s abuser, who here was also the initial distributor

of Amy’s images. See id. at 469 n.4 (Roberts, C.J., dissenting) (“Amy’s uncle [is] the

initial source of all of her injuries[.]”).

The D.C. Circuit contends that disaggregating would be impossible, 930 F.3d

at 483-84, but such a contention is baseless, as the government made no attempt to

disaggregate in this case. Courts have done so, often with the help of an expert

report, which would only need to be obtained once. See, e.g., United States v.

Olivieri, Crim. No. 09-743 (WHW), 2012 WL 1118763, at *11 (D.N.J. Apr. 3, 2012)

(victim provided expert testimony that fifty percent of her total losses were

proximately caused by her initial abuse). As Judge Bates recognized in United

States v. Loreng, 956 F. Supp. 2d 213, 226 n.7 (D.D.C. 2013), “insofar as

[disaggregation] may be hard for a psychologist to make in a principled manner

based on access to the victims, experience with other victims, and specialized

training, it is far more difficult for a Court to make without the benefit of such

tools.” Permitting courts to simply state that they have considered whether a

defendant played any role in the initial abuse and/or distribution contravenes

Paroline.

- 27 -

III.

This Court Should Provide Much Needed Guidance To Lower Courts

Throughout the Country Struggling to Effectuate Paroline.

A.

Confusion Amongst Lower Courts Has Resulted in Countless,

Materially Different Methodologies for Determining

Restitution and Unwarranted Sentencing Disparities Among

Similarly Situated Defendants.

As noted above, because the question presented in Paroline did not extend to

how restitution should be determined if the proximate cause standard were

adopted, the parties did not brief the issue to any appreciable extent. The Court

nevertheless waded into the morass, offering several “guideposts” that district

courts “might consider in determining a proper amount of restitution.” 572 U.S. at

459-60. The Court twice expressly declined to offer more specific guidance, as it

found more precise instruction to be “neither necessary nor appropriate . . . at this

point in the law’s development.” Id.; see also id. at 462 (declining to provide

“further detailed guidance at this stage in the law’s elaboration”). The time for

more detailed guidance has arrived.

Since Paroline, district courts have likened restitution analysis in the child

pornography context to “piloting a small craft to safe harbor in a Nor’easter.”

United States v. DiLeo, 58 F. Supp. 3d 239, 244 (E.D.N.Y. 2014). Throughout the

country, restitution awards and methodologies vary widely and unwarranted

disparities abound. Below is just a brief overview of the disparate methodologies

being employed.

As the government pointed out in its appellate briefing in this case, a small

majority of district courts have purportedly employed the “1/n” method, where

restitution is determined by dividing a victim’s aggregate losses by “n”: the number

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of federal defendants that have been ordered to pay restitution to the requesting

victim as of the day of the defendant’s sentencing. 14 But even among these courts,

there is significant disparity in how the 1/n is being applied. Many courts follow the

most simplistic method of dividing aggregate losses by the number of previously

convicted federal defendants with standing restitution orders. See, e.g., United

States v. Ayer, No. 2:15-cr-86-APG-NJK, 2015 WL 7259765 (D. Nev. Nov. 17, 2015)

(considering only the number of orders entered after finding past and future

offenders to be indeterminable); United States v. Miltier, No. 2:15cr151, 2016 WL

6821087 (E.D. Va. Nov. 17, 2016) (predicting that restitution orders would double in

the future, but declining to use that number, ultimately dividing outstanding losses

by number of restitution orders received by victim); United States v. RomeroMedrano, No. 4:14-CR-050, 2017 WL 5177647 (S.D. Tex. Nov. 8, 2017) (dividing

total losses by number of restitution orders after declining to estimate number of

future offenders and finding that Paroline factors support neither an increase nor

decrease in restitution amount).

Other courts apply the 1/n method differently, either dividing total losses by

both past and future offenders or arbitrarily adjusting the product downward when

considering additional Paroline factors. See, e.g., United States v. DiLeo, 58 F.

Supp. 3d 239 (E.D.N.Y. 2014) (dividing aggregate losses by number of standing

There are numerous substantive failings of the 1/n method, which were

detailed at length before both the district court and the court of appeals in this case,

especially in the context of Monzel II. Petitioner will defer substantive discussion of

the various methods discussed above to the briefing on the merits, should his

petition be granted.

14

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restitution orders but modifying product downward by $2000 in recognition of

existence of future offenders); United States v. Crisostomi, 31 F. Supp. 3d 361

(D.R.I. 2014) (doubling estimated number of restitution orders in order to include

future offenders before dividing remaining damages by that number); United States

v. Daniel, No. 3:07-CR-142-O, 2014 WL 5314834 (N.D. Tex. Oct. 17, 2014) (dividing

victim’s outstanding losses by number of evidence reviews submitted by law

enforcement in which victim’s images appeared; 5,000 estimated, awarded $368.28);

United States v. Cooley, No. 4:14-CR-3041, 2014 WL 5872720 (D. Neb. Nov. 12,

2014) (guesstimating 10,000 viewers total and appearing to divide outstanding loss

amounts by that amount); United States v. Moody, CR 417-256, 2018 WL 3887506

(S.D. Ga. Aug. 15, 2018) (using 1/n method but discounting result by 40% based on

mitigating factors); United States v. R.V., 157 F. Supp. 3d 207 (E.D.N.Y. 2016)

(dividing total calculated loss by number of defendants with standing restitution

orders and rounding down to nearest thousand).

Many courts purport to consider the Paroline factors in their analysis, using

the government’s (often unexplained) restitution request as a starting point and

randomly adjusting upwards or downwards. See, e.g., United States v. Berry, No.

1:18-cr-00107-AA, 2019 WL 5306960 (D. Or. Oct. 21, 2019) (increasing calculated

award from $3000 to $4000 upon reasoning that victim is unlikely to be

compensated for her full loss amount if she continues to receive small amounts from

each defendant); United States v. Safford, No. 1:17-CR-54, 2019 WL 4044038

(N.D.N.Y. Aug. 15, 2019) (balancing certain Paroline factors after first finding any

prediction of future offenders to be too speculative); United States v. Clemans, No.

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2:15-cr-00227-JAM, 2018 WL 4794166 (E.D. Cal. Oct. 3, 2018) (granting

government’s requests — tied to no particular methodology — after acknowledging

Paroline factors); United States v. Schultz, Cr. No. 14-10085-RGS, 2015 WL

5972421 (D. Mass. Oct. 14, 2015) (accepting total losses asserted by each victim and

adjusting awards based on certain Paroline factors and other restitution awards).

Many other courts neglect even a clear analysis of Paroline, instead imposing

amounts that either wholly reflect their “discretion” or a seemingly arbitrary

“neither severe nor token or nominal” award. See, e.g., United States v. Baslan, No.

13 CR 220(RJD), 2015 WL 1258158 (E.D.N.Y. Mar. 17, 2015) (setting arbitrary

restitution awards of $25,000 and $16,000 after finding those amounts to be

“neither ‘severe’ nor a ‘token or nominal amount’”); United States v. Hite, 113 F.

Supp. 3d 91 (D.D.C. 2015) (identifying various Paroline factors before settling on

seemingly arbitrary $2,500); United States v. Debruzzi, Crim. No. 17-160

(DWF/KMM), 2019 WL 6975457 (D. Minn. Dec. 20, 2019) (finding $1,000 to be “fair

and reasonable in consideration of the typical award in such cases” and to “serve the

basic purposes of restitution”); United States v. D.W., 198 F. Supp. 3d 18 (E.D.N.Y.

2016) (citing Paroline factors without discussing actual methodology for calculating

award amounts).

Several courts have individually devised their own methodologies for

calculating restitution whether or not they align with Paroline. See, e.g., United

States v. Mobasseri, No. 1:17CR138, 2019 WL 3807233 (N.D. Ohio. Aug. 12, 2019)

(dividing number of months defendant trafficked victim’s images by number of

months since victim’s first request for restitution and taking resulting percentage of

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victim’s total losses to determine those attributable to defendant before considering

Paroline factors); United States v. Miner, No. 1:14-cr-33 (MAD), 2014 WL 4816230

(N.D.N.Y. Sept. 25, 2014) (using median amount of other restitution awards for

victims); United States v. Randjelovich, No. 2:13-CR-00403-TLN, 2015 WL 4095655

(E.D. Cal. July 7, 2015) (acknowledging Paroline factors but appearing to settle

generally on $1,000 per file possessed but $2,000 per file possessed for one victim

who had received only a small number of restitution awards); United States v.

Gamble, No. 1:10-CR-137, 2015 WL 4162924 (E.D. Tenn. July 9, 2015) (proposing

tiered approach based on aggravating and mitigating circumstances that

purportedly included Paroline factors as well as others such as length of possession,

number of items viewed, and whether others viewed image while in defendant’s

possession).

Finally, several courts have altogether declined to impose any restitution for

lack of clarity or basis in determining correct amounts. See, e.g., United States v.

Berrios, No. 14-cr-682 (BMC), 2015 WL 5793480 (E.D.N.Y. Oct. 1, 2015)

(complaining that government provided no basis for calculating total losses since it

only provided qualitative factors and rejecting restitution rather than arbitrarily

guessing); United States v. Chan, Cr. No. 15-00224 DKW, 2016 WL 370712 (D. Haw.

Jan. 29, 2016) (rejecting mental health expert’s analysis that disaggregated victims’

harms due to arbitrariness and declining to impose restitution because “Paroline

and Galan set out an impossible task for district courts”); United States v. Kugler,

CR 14-73-BLG-SPW, 2016 WL 816741 (D. Mont. Feb. 29, 2016) (finding, on record

before it, impossible to (1) disaggregate losses caused by original abuser and (2)

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disaggregate losses among distributors and/or among possessors, both of which

court found necessary under Paroline).

As the Paroline dissent recognized:

Nor can confidence in judicial discretion save the statute from

arbitrary application. . . . It is true that district courts exercise

substantial discretion in awarding restitution and imposing sentences

in general. But they do not do so by mere instinct. Courts are instead

guided by statutory standards: in the restitution context, a fair

determination of the losses caused by the individual defendant

under section 3664(e); in sentencing more generally, the detailed

factors in section 3553(a). A contrary approach—one that asks district

judges to impose restitution or other criminal punishment guided

solely by their own intuitions regarding comparative fault—would

undermine the requirement that every criminal defendant receive due

process of law.

572 U.S. at 471 (Roberts, C.J., dissenting). In light of the varying methods

discussed above, and the disparate results they produce among similarly-situated

defendants, additional guidance is necessary for the government and district courts

to properly perform their statutorily-mandated duties, to gain some semblance of

uniformity for/amongst similarly-situated criminal defendants, and — most

importantly — to meet the demands of due process.

B.

In Addition to Substantive Guidance, This Court Should

Provide Procedural Guidance, (1) Requiring District Courts to

Articulate the Methodologies and Specific Factual Findings

Underlying Their Restitution Orders to Better Enable Effective

Appellate Review; and (2) Making Clear that Paroline Does Not

Prohibit the Use of Math in Determining Restitution.

1.

A District Court Should Be Required to Explain the Basis

for Its Restitution Order, Beyond Simply Reciting the

Paroline Factors.

Several circuits have required — outside the child pornography context —

that district courts, in determining “the full amount of each victims losses,” 18

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U.S.C. § 3664(f)(1)(A), articulate the specific factual findings underlying their

restitution orders in order to enable appellate review. See, e.g., United States v.

Singletary, 649 F.3d 1212, 1222 (11th Cir. 2011); United States v. George, 403 F.3d

470, 473 (7th Cir. 2005). This Court should explicitly adopt such a requirement

here.

The district court in this case provided no rationale as to how or why the

court reached its $7,500 figure; the court of appeals’ opinion likewise offers no

insight, beyond rejecting the one explanation evident from the record: the

averaging of awards in five cases — none of which involved Amy — cited by the

district court as post-Paroline examples. Beyond that explanation, it appears, as

Chief Justice Roberts warned, that the court “pick[ed] an arbitrary number”

representing Petitioner’s relative causal role, “[a]nd arbitrary is not good enough for

the criminal law.” Paroline, 572 U.S. at 463 (Roberts, C.J., dissenting). This is so,

even where district courts are afforded wide discretion. See Halo Electronics, Inc. v.

Pulse Electronics Inc., 136 S. Ct. 1923, 1931 (2016) (explaining that “discretion is

not whim”). 15

If the district court’s $7,500 figure was not in fact arbitrary, Petitioner, this

Court, other courts, and the public are entitled to know how it was derived (even if

a specific algorithm is not required), as the award now serves as a benchmark in the

In Halo, this Court observed that “[i]n a system of laws[,] discretion is

rarely without limits, even when the statute does not specify any limits upon the

district court’s discretion. . . . [A] motion to a court’s discretion is a motion, not to

its inclination, but to its judgment; and its judgment is to be guided by sound legal

principles.” 136 S. Ct. at 1931 (internal quotation marks and citations omitted).

15

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D.C. Circuit (as well as courts apt to follow its reasoning) — indeed a floor — given

Petitioner is the least culpable of offenders required to pay Amy restitution. As it

stands, the district court offered a list of factors it said it considered in reaching the

$7,500 figure, but not how it derived the figure in light of those factors (i.e., its

reasoning) or why it rejected Petitioner’s arguments. “[I]t is not enough for the

district court to carefully analyze the sentencing factors. A separate and equally

important procedural requirement is demonstrating that it has done so.” United

States v. Merced, 603 F.3d 203, 215 (3d Cir. 2010). The D.C. Circuit’s approval of

the district court’s award in this case leaves future child pornography restitution

awards effectively unreviewable and provides no guidance or guardrails for district

courts — especially considering that there are no Sentencing Guidelines setting

“minerun” restitution ranges as a basis for comparison.

Even were the district court’s explanation sufficient in a vacuum, it failed to

address Petitioner’s arguments in mitigation. Though Petitioner filed 67 pages of

pleadings in the district court, the D.C. Circuit found that “Monzel fails to identify

any material mitigation arguments that the district court did not address” in its 4page “Analysis” section — which listed factors, but provided no analysis connecting

them to the $7,500 figure. First, the court’s focus on “material” mitigation

arguments is at odds with precedent throughout the circuits that requires

sentencing courts to consider all “nonfrivolous arguments for mitigation.” See, e.g.,

United States v. Bigley, 786 F.3d 11, 12, 14 (D.C. Cir. 2015). The difference itself is

material, in that — especially in an area of wide discretion — it is not possible or

appropriate for a reviewing court to surmise how the district court within its

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discretion would have responded to a particular sentencing argument. Cf. United

States v. Brown, 610 F.3d 395, 398 (7th Cir. 2010) (“We find it pointless to speculate

about the judge’s reasons. If the district court fails to explain itself sufficiently, the

rationale for deferential appellate review is weakened because this court cannot tell

how particular facts influenced the district court’s assessment of the totality of the

circumstances.”); United States v. Carter, 564 F.3d 325, 329 (4th Cir. 2009) (“[A]n

appellate court may not guess at the district court’s rationale[.]”); United States v.

Thomas, 498 F.3d 336, 341 n.3 (6th Cir. 2007) (“[I]t is not our role to supply reasons

for the district court’s sentencing determination where the district court itself

supplied none.”).

Second, while Petitioner admittedly made arguments that nibbled at the

edges of Amy’s aggregate loss calculation — in an honest effort to get things right —

there were several significant arguments that the district court failed to address.

For example, the court did not address the factual dispute Petitioner raised

regarding the availability of data predicting “the number of future offenders” and/or

estimating “the broader number of offenders involved” — the two Paroline factors

the Court itself added. Petitioner argued that Amy herself had cited data in

Paroline from NCMEC and the DOJ itself. The district court did not address why

this data was unacceptable. 16

The district court did not find the factors “uninstructive,” 930 F.3d at 482.

It accepted that they were relevant, but deferred to the government’s representation

that there was no information available to determine them.

16

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Additionally, the district court did not address why its award effectively

assumed that Petitioner was one of 432 people ($3,243,195/$7,500) who have

harmed and will harm Amy when Paroline acknowledged repeatedly that Amy’s

offenders “to date easily number in the thousands.” 572 U.S. at 440. Nor did it

address why Petitioner was ordered to pay $1,175 more than Amy’s uncle — “the

initial source of all of her injuries,” id. at 469 n.4 — or how it took that abuse into

account; or why it awarded more than “the significant majority of defendants” who

“have been ordered to pay Amy $5,000 or less,” 572 U.S. at 470. Finally, the court

failed to explain why its award was $2,500 more than the $5,000 award Amy agreed

to in Hite — a case cited twice by the district court in its memorandum order.

Petitioner had asked only for a remand for additional explanation and the

opportunity to answer the court’s reasoning, which — as courts have recognized —

would be “nowhere near as costly or as chancy an event as a trial.” In re Sealed

Case, 573 F.3d 844, 852 (D.C. Cir. 2009). Because the district announced its award

in a memorandum opinion, as opposed to at sentencing, Petitioner did not have the

opportunity to request additional explanation, engage the court’s analysis, or ask

the court to address specific arguments — as he would have at a sentencing

hearing. See, e.g., United States v. Hunter, 809 F.3d 677 (D.C. Cir. 2016). Indeed,

this is precisely why there is an objection requirement at trial and sentencing.

2.

This Court Should Clarify that Paroline Does Not Forbid

the Use of Math in Determining or Reviewing Restitution

Orders.

Finally, the D.C. Circuit appears to believe that Paroline affirmatively rejects

the use of math in determining restitution in this area, even placing the term in

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quotation marks, as if the concept has no place in this context. See, e.g., 930 F.3d at

486 (“Monzel returns to the “math.”); see also id. (restitution is “not an exercise in

long division”); id. at 481, 483, 484, 486. The D.C. Circuit is not alone in eschewing

the use of illustrative mathematical formulations, see, e.g., United States v. Miner,

617 F. App’x 102, 103 (2d Cir. 2015), relying heavily on specific language in

Paroline.

While Paroline states that determining restitution “cannot be a precise

mathematical inquiry,” 572 U.S. at 459, it does so by means of acknowledgment/

recognition, not prohibition. Indeed, Paroline suggests “disaggregating losses,”

“determin[ing]” “amount[s]” and considering “number[s],” “predictions,” and

“estimate[s].” 572 U.S. at 449, 460. While courts may not be required to adopt a

specific algorithm or formula, “numbers” and “math” are necessarily instructive in

any attempt to quantify relative harm — and any attempt to obtain meaningful

appellate review. The alternative is a veritable witch’s brew, into which courts

simply stir ingredients, recite the magic words (e.g., the Paroline factors), and out

magically pops a restitution figure. While this may not be far from what occurs in

the context of setting criminal fines, it is not how criminal restitution is determined.

To the extent Monzel III can be read to discourage the use and/or consideration of

mathematical illustrations in this area, it is again contrary to Paroline.

The D.C. Circuit criticized Petitioner for suggesting that courts must adopt a

“formulaic methodology for computing restitution,” finding instead that courts have

broad discretion, need only list their considerations, and need not “show[] every step

of [their] homework.” 930 F.3d at 480, 484. Though Petitioner offered his own

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disaggregation formula (based on Amy’s) in both courts, he did so for illustrative

purposes and to provide a basis for review, never arguing that either court needed

to do the same. Quoting the D.C. Circuit’s previous opinion in Monzel I, Petitioner

argued that “in fixing the [restitution] amount[,] the district court must rely upon

some principled method for determining the harm Monzel proximately caused.” 641

F.3d at 540. This Court should adopt such a requirement.

IV.

This Case Presents an Ideal Vehicle for Deciding Both Questions,

Which Are of Exceptional Importance.

The questions presented are urgently in need of resolution by this Court, as

they impact thousands of federal defendants throughout the country who are

statutorily mandated to pay restitution under § 2259.

The issues are cleanly

presented in this case, which was extensively briefed below, as Petitioner’s possession

of a singular image with no aggravating factors makes him the least culpable child

pornography defendant (i.e., the “floor”) still subject to § 2259 and removes all factual

complications from the Court’s consideration.

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CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

A.J. KRAMER

Federal Public Defender

ROSANNA M. TAORMINA

Assistant Federal Public Defender

Counsel of Record

Office of the Federal Public Defender

for the District of Columbia

625 Indiana Avenue, NW, Suite 550

Washington, DC 20004

Phone: (202) 208-7500

Rosanna_M_Taormina@fd.org

February 6, 2020

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