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United States v. McIntosh

United States District Court, E.D. Virginia, Newport News Division

October 22, 2014

UNITED STATES OF AMERICA,
v.
BRYAN SCOTT McINTOSH, Defendant.

MEMORANDUM OPINION

ARENDA L. WRIGHT ALLEN, District Judge.

This matter comes before the Court on the Government's request for an Order of Restitution against Defendant Bryan Scott McIntosh ("Mr. McIntosh") pursuant to 18 U.S.C. § 2259. This Court held a restitution hearing on the matter on September 29, 2014. For the reasons that follow, the Court hereby ORDERS Mr. McIntosh to pay restitution in the amount of $14, 500.00 to the victim "Vicky."[1]

I. Factual Background

On June 19, 2014, Mr. McIntosh pled guilty to one count of Receipt of Child Pornography in violation of 18 U.S.C. § 2252(A)(a)(2). On September 12, 2014, this Court sentenced Mr. McIntosh to 120 months imprisonment, followed by fifteen years of supervised release. With the agreement of both parties, this Court reserved ruling on the issue of ordering restitution pending a separate restitution hearing.

The Government sought restitution for Vicky in the amount of $25, 000.00. When Vicky was a young child (she is now an adult), she was subjected to sexual abuse by her biological father, who produced videos and images of Vicky's sexual abuse. In these videos and still images, he engaged in vaginal and anal intercourse and oral sex with her. He subjected her to bondage, including tying ropes to parts of her body and tying her to furniture. These pornographic images and videos of Vicky as a child are widely circulated across the Internet. United States v. Hicks, CRIM.A. 1:09-CR-150, 2009 WL 4110260, at *1 (E.D. Va. November 24, 2009).

The Government asserted that Mr. McIntosh possessed fifty-one picture images and ninety-eight videos of Vicky. Govt. Pos. on Restitution at 5. One of those images qualifies as sadistic, masochistic or other depictions of violence. Id. The images were on multiple devices possessed by Mr. McIntosh. His earliest known date of possession of an image of Vicky is November 6, 2009.

II. Applicable Common Legal Principles

MANDATORY RESTITUTION

The Mandatory Restitution for Sexual Exploitation of Children Act ("the Restitution Act"), 18 U.S.C. § 2250, was enacted for the purpose of compensating victims of offenses involving the sexual exploitation of children in the "full amount of the victim's losses." See, e.g., United States v. Burgess, 684 F.3d 445, 455 (4th Cir. 2012) cert. denied, 133 S.Ct. 490 (U.S. 2012) and writ denied sub nom. Burgess v. Attorney Gen. of U.S., 2014 WL 1432042 (W.D. N.C. Apr. 14, 2014). The phrase "full amount of the victim's losses" is defined in the Restitution Act as "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.

Id. (emphasis in original) (citing 18 U.S.C. § 2259(b)(3)).

Under the Restitution Act, restitution is mandatory. 18 U.S.C. § 2259(b)(4). The Court may not decline to issue an order because of either the inability of a defendant to pay, or the fact that the victim has received, or is entitled to receive, compensation for his or her injuries from insurance proceeds or any other source. Id. Restitution is contingent on the Government's ability to prove, "by the preponderance of the evidence, " "the amount of the loss sustained by a victim as a result of the defendant's crime. 18 U.S.C. § 3664(e).

THE PAROLINE FRAMEWORK

The United States Supreme Court addressed restitution under the Restitution Act in a recent opinion. Paroline v. United States, 134 S.Ct. 1710 (2014). In that case, the defendant had pled guilty in federal court to possessing child pornography images. See id. at 1717. Two images were of a victim who sought restitution in the amount of almost $3.4 million dollars. Id. at 1717-18. Employing a "proximate cause" analysis, the Supreme Court concluded that restitution was proper. See id. at 1726-27.

The Paroline decision noted that the calculation of restitution "cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment." Id. at 1728. The Supreme Court set forth non-exclusive factors for consideration in determining restitution. A summary of the Paroline framework follows:

- Determine the amount of the victim's losses caused by the continuing traffic in the victim's images ...

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