Saturday, June 02, 2007

Case o' The Week: Doe's Dough, Restitution for Sex Offenses -- United States v. John Doe

The Ninth Circuit backs funding for education and vocational training for sexually-abused foreign minors. United States v. John Doe, __ F.3d __, Slip. Op. 6331 (9th Cir. May 29, 2007), decision available here. Noble sentiment -- but is that what the restitution statute contemplates when it demands a causal link between child abuse, and criminal restitution?

Players: Hard-fought appeal by CD Cal AFPD Jonathan Libby. Opinion by Judge O'Scannlain.

Facts: John Doe (interestingly, the panel protected his identity) was “inspected” at Los Angeles International Airport ("LAX.") Hidden in his jeans was a memory stick, which contained hundreds of images of child porn (including scenes in which he participated.) Slip Op. at 6336. Doe told his brother to destroy other data; instead, that media was recovered and revealed thousands of additional images. Id. Doe plead to producing child porn abroad, and to engaging in sexual conduct with minors abroad. Id. He stip’ed to a 204 month sentence recommendation. Doe asked for a preview of the recommended conditions of supervised release: the court refused. At sentencing, the district court set over $18,000 in restitution, for psych treatment, education, and vocational training for the victims. Id. at 6339.

Issue(s): 1. “We must decide whether restitution can be awarded to the overseas child victims of sexual exploitation crimes committed by an American citizen while he was traveling outside the United States.” Id. at 6335.

2. “Doe also contends that the failure of the district court to provide advance notice of certain special supervised conditions violated his due process rights and the rights afforded by Rule 32.” Id. at 6348.

Held: 1.[I]n every circuit to consider the causation requirement of [the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. § 2259], a rule of reasonableness is applied. We will uphold an award of restitution under Section 2259 if the district court is able to estimate, based upon facts in the record, the amount of defendant’s [sic. probably should be, “victim’s"] loss with some reasonable certainty.” Id. at 6344. “[W]e believe that the district court did not abuse its broad discretion in crafting its $16,475 restitution award.” Id. at 6348.

2. “[W]e conclude that the district court did not provide adequate notice to Doe of certain additional supervised release conditions that were imposed.” Id. at 6348. “Thus, we vacate the conditions of supervised release and order a limited remand to the district court with instructions that the district court provide advance notice of any nonstandard conditions it deems appropriate. Doe should be given a chance to challenge their applicability to his case.” Id. at 6349.

Of Note: This is a weird case. As Jon Sands noted in his earlier summary below, in evaluating the reasonableness of the restitution order the Ninth took note that of Doe’s bargain restitution, by virtue of the fact that he molested Third World children: “It does not escape our attention that Doe has reaped a benefit by choosing to molest and to exploit children in a foreign country; now convicted, he must only reimburse the children at developing-world rates for professional services.” Id. at 6346.

A dispassionate analysis (a precious-rare commodity in this area of law) suggests that Doe was probably right. As a matter of law, why does criminal restitution include things like education, and vocational training? As admirable as it is to improve the children’s lot in life, was their poverty proximately caused by Doe’s abuse? The explanation of this causal link isn’t particularly compelling. Id. at 6346-47. This approach looks a lot like a civil “pain and suffering” award crammed into a criminal restitution order. In an abstract sense, maybe that's a just result: these foreign kids could have never found a lawyer to pursue small civil remedies, against an imprisoned child molester represented by an AFPD. Nonetheless, to get to that result the restitution order approved by the panel stretches "causation" to the breaking point.

How to Use: At sentencing, remember the Doe rule (previously articulated in United States v. Wise, 391 F.3d 1027 (9th Cir. 2004)): the defense is entitled to notice of unusual conditions of supervised release (conditions not required by statute or recommended in the guidelines). Id.

For Further Reading: Sentencing Resource Attorneys Amy Baron-Evans and Sara Noonan scared the bejesus out of hundreds of AFPDs at last week’s Defender’s conference in Miami, with their talks on SORNA and the Adam Walsh Act. If you have a federal sex case, don’t take another step before you read Amy and Sara's “Adam Walsh I” and “II” here. ("Adam Walsh III" should be out next week.These excellent tomes are, by far, the best summaries of the horrible new laws and regulations for federal sex offenses.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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