We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CRIME DOESN’T PAY

About 15 years ago or so, some depraved mutt made videos of a little girl being sexually molested. The videos – known in the kiddie porn world as the “Vicky Series”– has been circulating on the Internet ever since.

The young woman at the center of the Vicky series is now trying to regain her life after years of psychological trauma brought on by knowing that disgusting images of her have been seen, actually drooled over, by thousands, if not millions, of people. The legal side of her effort is to make claim for restitution when people are convicted of child porn offenses and their computers are found with any of the “Vicky” series on the hard drives.

She is seeking about $1 million to date for counseling, lost wages, extra educational costs and evidence gathering, her lawyer, Carol Hepburn, said. So far, her client has filed for restitution in more than 200 federal criminal cases across the country, and received more than 50 orders for payment — though not much money has come in because many defendants have little means.

One of those proceedings involved Ricky Funke, convicted of possessing over 600 images and videos of child pornography. Among these were 21 videos from the “Vicky series,” depicting her sexual abuse at the age of 10 and 11. Some of the images and videos had been on his computer since 2001.

The young woman known as “Vicky” requested $27,500 in restitution and attorney’s fees. On the government’s recommendation, Funke’s court ordered $3,500 restitution to Vicky.

Funke challenged the award. On Tuesday, the 11th Circuit upheld the relatively modest award to Vicky.

The Mandatory Victims Restitution Act, which Congress beefed up with a special provision – 18 USC 2259 – for sex offenses, provides that restitution is to be awarded for the “full amount of the victim’s losses,” defined as costs incurred by the victim for medical services relating to physical, psychiatric, or psychological care, rehabilitation, lost income, attorneys’ fees, and other losses suffered by the victim as a proximate result of the offense.

Funke argued “costs incurred” did not include future costs, but the Circuit noted that five other courts of appeal had held that future losses are compensable, under Sec. 2259. The 11th said, “Congress chose unambiguously to use unqualified language in prescribing full restitution for victims,” and agreed that Vicky’s future costs could be estimated.

Rick raised a more troublesome issue, that of whether his possession of 21 videos proximately caused any damage to Vicky. The Circuit held, however, that “where it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court… should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”

Figuring the amount of loss in such a case is more of an art than a science. The Circuit held that a district court should consider the number of past defendants who had contributed to the victim’s general losses, a reasonable prediction of the number of future defendants likely to be convicted for crimes contributing to the victim’s general losses, reliable estimates of the broader number of offenders involved (most of whom will, of course, never be caught or convicted), whether the defendant distributed any of the images; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role.

Here, the district court properly considered Ricky’s “possession of a large number of files involving [Vicky] and his role in distributing files to others over the BitTorrent program.” The appellate panel concluded the district court did not abuse its discretion in awarding Vicky $3,500 in restitution.

United States v. Funke, Case No. 16-1218 (8th Cir., Jan. 24, 2017)

– Thomas L. Root