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United States v. Miltier

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

November 17, 2016

UNITED STATES OF AMERICA,
v.
RONALD MILTIER, Defendant.

          MEMORANDUM OPINION

          ROBERT G. DONMAR, UNITED'STATES DISTRICT JUDGE

         This matter comes before the Court upon the Government's request for an Order of Restitution against Defendant Ronald Miltier ("Defendant") pursuant to 18 U.S.C. § 2259. ECF No. 60. See also ECF Nos. 59, 67.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On March 24, 2016, Defendant was named in an eight-count Superseding Indictment charging him with: (1) Receipt Of Child Pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A), 2256(1), 2256(2), 2256(8)(A) and 2 (Counts One through Seven); and (2) Possession of Child Pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2256(1), 2256(2), and 2256(8)(A) (Count Eight). Superseding Ind., ECF No. 17.

         Defendant's trial on the charges alleged in the Superseding Indictment began on July 12, 2016. On July 15, 2016, the Jury returned a verdict which found Defendant guilty of: (1) Counts One through Seven, Receipt Of Child Pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A), 2256(1), 2256(2), 2256(8)(A) and 2; and (2) Count Eight, Possession of Child Pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2256(1), 2256(2), and 2256(8)(A). ECF No. 42.

         On October 24, 2016, this Court sentenced Defendant to 120 months each for Counts One through Seven, to be served concurrently, and twenty-two months for Count Eight, also to be served concurrently; supervised release was set for life. ECF No. 63.

         Government sought restitution for the victim "Vicky" in the amount of $10, 000. ECF No. 60. Government asserts that Defendant possessed at least one video file of Vicky. ECF No. 67, at 11, Gov't Restitution Hr'g Exs. 12, 13. Defendant objected to the request, ECF Nos. 61, 65. Vicky also submitted a letter from her attorney, Carol Hepburn, outlining the alleged damages suffered, as well as victim impact statements from herself, her mother, and her stepfather. ECF No. 59-1. At the request of both parties, this Court reserved ruling on the issue of restitution pending a separate hearing. ECF No. 62. This Court held a restitution hearing on November 7, 2016. ECF No. 70.

         When Vicky was a child, her biological father subjected her to sexual abuse, including vaginal and anal intercourse; oral sex; and bondage. He then produced videos and images of this abuse; these images and videos are widely circulated across the Internet. United States v. McIntosh. 2014 WL 5422215, at *1 (E.D. Va. Oct. 22, 2014) (citing United States v. Hicks. 2009 WL 4110260, at *1 (E.D. Va. Nov. 24, 2009)). See also Victim's Impact Statement - Step-Father of Victim Vicky Series, ECF No. 59-1, at 30.

         According to the documents submitted by Vicky's lawyer, Ms. Hepburn, Vicky's estimated losses total $1, 195, 947.96. This includes: (1) $113, 600 in future counseling expenses; (2) $53, 300 in educational and vocational counseling needs and lost part-time income during schooling; (3) $936, 646 in lost past and future earnings; and (4) $92, 371.96 in expenses incurred relative to restitution documentation (not including attorney's fees). ECF No. 59-1, at 2. As of Ms. Hepburn's October 12, 2016 letter, Vicky has received $858, 093.85 from 830 orders of restitution. Id. Thus, Vicky still seeks $337, 854.11. As noted, she requested $10, 000 from Defendant. ECF No. 60.

         II. MOTION FOR RESTITUTION

         A. Standard

         1. Mandatory Restitution for Sexual Exploitation of Children Act

         The Mandatory Restitution for Sexual Exploitation of Children Act ("MRSECA"), 18 U.S.C. § 2259, requires that courts issue restitution orders to victims of child pornography crimes (restitution is "mandatory, " 18 U.S.C. § 2259(b)(4)). Courts must direct the defendant to pay the victim "the full amount of the victim's losses as determined by the court, " § 2259(b)(1), which includes any costs incurred 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.

         A court may not decline to issue an order because of "the economic circumstances of the defendant" or "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." 18 U.S.C. § 2259(b)(4).

         Restitution is contingent on the Government's ability to prove "the amount of the loss sustained by a victim as a result of the defendant's crime" by a preponderance of the evidence. 18 U.S.C. § 3664(e).

         2. Paroline v. United States

         In Paroline v. United States. 134 S.Ct. 1710, 1716 (2014), the Supreme Court considered "how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in [the] pornographic materials possessed." The Court held that restitution is "proper under § 2259 only to the extent the defendant's offense proximately caused a victim's losses." Id. at 1722 (emphasis added). Proximate cause is a "flexible concept" that "generally refers to the basic requirement that . . . there must be some direct relation between the injury asserted and the injurious conduct alleged." Id. at 1719 (internal citations omitted).

         Paroline ...


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