Case o' The Week: Win on Loss -- Galan and Disaggregating Restitution Loss for Child Porn Restitution
[“T”]his area, in which Congress has adopted a scheme that at least approaches the limits of fair adjudication despite attempts by the courts to avoid caprice, cries out for congressional solution.”
United States v. Galan, 2015 WL 6736535, *3 (9th Cir. Nov. 4, 2015) (three footnotes omitted), decision available here.
Players: Decision by Judge Fernandez, joined by Judges Tashima and Bea. Admirable win for D. Or. AFPD Bryan Lessley.
Facts: Eleven years before before Galan possessed and distributed child porn, someone else abused “Cindy” and created those images. Id. The government sought restitution from Galan under 18 USC § 2259(a), (b)(3). Id.
Galan contested the government’s calculations, because there was no attempt to disaggrate the losses arising from the original abuse from the losses arising from Galan’s crimes. Id.
The district court agreed with the government’s restitution calcs; this appeal followed.
Issue(s): “[Galan] asserts that the district court erred when it failed to disaggregate losses caused to Cindy due to the crimes perpetrated against her by the original abuser and those caused to her by others who possessed or distributed images of the abuse which were made by the original abuser.” Id. at *1. “The question on which the parties join issue is whether it is proper to make the restitution calculation without excluding the ongoing losses to Cindy due to the actions of the original abuser.” Id.
Held: “We agree and vacate the restitution order and remand.” Id. “We hold that in calculating the amount of restitution to be imposed upon a defendant who was convicted of distribution or possession of child pornography, the losses, including ongoing losses, caused by the original abuse of the victim should be disaggregated from the losses caused by the ongoing distribution and possession of images of that original abuse, to the extent possible. The district court erred when it declined to limit the restitution imposed upon Galan in that manner.” Id. at *3.
Of Note: In the first (brief) Westlaw page, Galan is peppered with no less than a whopping ten footnotes. It is a notable style of legal writing, that is not to everyone’s taste. See Abner J. Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1984-1985) (“I consider footnotes in judicial opinions an abomination.”)
In defense of the approach, however, the first paragraph of Galan’s “Discussion” section lays out the core concepts in a series of clean and clear phrases, with the necessary and routine citations tucked away in a series of footnotes. 2015 WL 6736535, at *1.
An interesting opinion from footnote fan J. Ferdinand F. Fernandez.
How to Use: Back the case goes, to the district court.
The Ninth “express[es] no opinion about what portion of a victim’s ongoing loss should be attributable to the original abuser.” Id. at *3. However, Judge Fernandez suggests some factors that are sure to be seized upon by district courts: egregiousness of the original abuse, how the victim deals with this abuse when distribution of the images does not follow, and the victim’s own reaction to the traumas to which he or she has been subjected. Id. at *3.
“We have no illusion that the task will be easy,” commiserates Judge Fernandez, “but the courts (and the government) cannot decline to make an effort to accomplish what Congress and the Court have required.” Id. The restitution scheme “cries out for congressional solution,” opines the Court, id. but until then the district court and the government must try to disaggregate restitution claims.
For Further Reading: A routine allocution and sentencing appeal from San Diego doesn’t merit enough interest to even get oral argument. Then, presto chango, a sua sponte en banc call goes out -- and the case is suddenly on January’s en banc calendar!?!
What’s the bee in the Ninth’s bonnet? Speculation abounds, but hard to say for sure – the Ninth declined supplemental briefing on whether the case should go en banc. Curious and curiouser.
For Chief Judge Thomas’s order on this mystery wrapped in an enigma, see United States v. Francisco Gasca-Ruiz, No. 14-50342 (9th Cir. Nov. 12, 2015) (Ord.), available here.
Image of “footnote” By Calle Widmann (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons, from https://commons.wikimedia.org/wiki/File%3AFootnote.jpg
Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org