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United States v. Johnson

United States District Court, E.D. Virginia, Richmond Division

March 16, 2016



M. Hannah Lauck United States District Judge

This matter comes before the Court on Defendant Michael P. Johnson's objection to the United States' Position as to Restitution. On July 8, 2015, Johnson pleaded guilty to one count of production of child pornography, in violation of 18 U.S.C. § 2251(a). (ECF No. 12.) On November 12, 2015, after finding that the victim's losses would not be ascertainable ten days prior to sentencing, the Court granted the United States' Motion for Extension of Time After Sentencing to Determine Restitution. (ECF No. 28.) The Court further ordered that a restitution hearing date be set within 90 days of sentencing. On December 21, 2015, following the sentencing of Defendant Michael P. Johnson, neither party requested a restitution hearing. Instead, on the parties' request, the Court ordered the parties to submit briefing according to a briefing schedule. (ECF No. 40.) The United States filed its position on restitution, (ECF No. 48), Johnson responded, (ECF No. 49), and the United States replied, (ECF No. 53)[1]For the reasons that follow, by separate order, the Court will order Johnson to pay restitution in the amount of $85, 800.

The United States recommends restitution for future counseling services of the child victim[2] in this case as required by 18 U.S.C. § 2259(a)[3] and the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A(a)(l).[4] Under 18 U.S.C. § 2259(b)(3), the "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.

18 U.S.C. § 2259(b)(3). In order for the Court to award restitution, the United States must prove the loss sustained by the victim by a preponderance of the evidence. Id. §§ 2259(b)(2), 3664(e). The point of contention here is whether the United States has satisfied this burden.

As support for its restitution recommendation, the United States references a December 18, 2015 letter received from the victim's Court-appointed guardian ad litem.[5] In the letter, the guardian ad litem informs the United States attorney that the victim will require therapy once a week for approximately ten years, which the guardian ad litem estimates-after consulting with therapists-will cost approximately $78, 000.[6] The letter specifically identifies a therapist at the Gil Institute in Fairfax, Virginia, whom the guardian ad litem has spoken to about the victim's needs.[7] The therapist charges $150 per hour. At one visit, once a week, for one hour, the therapist's services would cost approximately $7, 800 per year. Ten years of counseling would cost the victim approximately $78, 000.

Johnson objects to the United States' submission of only the guardian ad litem's letter, citing restitution cases that consider opinions from medical professionals directly, not through o another[8]. Johnson, however, points to no requirement that a therapist must personally interview a victim or that a therapist must convey his or her findings to a district court directly. To the contrary, the Fourth Circuit recently explained that a victim need not participate in any phase of the restitution process, so long as the government meets its burden. See United States v. Aman, 616 F.App'x 612, 614 (4th Cir. 2015) (citing 18 U.S.C. § 3664(g)(1)). Were the Court to adopt Johnson's position, a child molestation victim would be precluded from recovering restitution if he or she could not immediately be evaluated by a therapist. Importantly, to satisfy its burden by a preponderance of the evidence, the United States simply "must demonstrate the amount of such loss with evidence bearing sufficient indicia of reliability to support its probable accuracy." United States v. Singletary, 649 F.3d 1212, 1217 n.21 (11th Cir. 2011) (citation omitted); see also United States v. Doe, 488 F.3d 1154, 1160 (9th Cir. 2007) (explaining that a victim's loss need only be calculated "with some reasonable certainty").

Through the guardian ad litem's letter, the United States satisfies its burden here. Based upon the guardian ad litem's discussions with various therapists, [9] the guardian ad litem has estimated that the victim's future treatment will cost approximately $78, 000. In reaching this figure, the guardian ad litem has identified the specific therapist that the victim anticipates visiting, that therapist's hourly rate ($150 per hour), and the estimated duration of necessary treatment (once a week for ten years). The Court finds that this evidence ...

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