United States v. Cecilio Galan , 804 F.3d 1287 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30145
Plaintiff-Appellee,
D.C. No.
v. 6:11-cr-60148-
AA-1
CECILIO GALAN,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted
October 15, 2015—Portland, Oregon
Filed November 4, 2015
Before: Ferdinand F. Fernandez, A. Wallace Tashima,
and Carols T. Bea, Circuit Judges.
Opinion by Judge Fernandez
2 UNITED STATES V. GALAN
SUMMARY*
Criminal Law
Vacating a restitution order and remanding, the panel held
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 panel held that the district court erred when it
declined to limit the restitution imposed upon the defendant
in that manner.
COUNSEL
Bryan E. Lessley (argued), Assistant Federal Public
Defender, Federal Public Defender’s Office, Eugene, Oregon,
for the Appellant.
Amy E. Potter (argued), Assistant United States Attorney;
S. Amanda Marshall, United States Attorney; Kelly A.
Zusman, Appellate Chief; United States Attorney’s Office,
Eugene, Oregon, for the Appellee.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. GALAN 3
OPINION
FERNANDEZ, Circuit Judge:
Cecilio Galan appeals the district court’s restitution order,
which was entered against him after his conviction and
sentence for distribution of child pornography1 and
possession of child pornography.2 See 18 U.S.C. § 2259(a).
Specifically, he asserts that the district court erred when it
failed to disaggregate losses caused to Cindy3 due to the
crimes perpetrated against her by the original abuser4 and
those caused to her by others who possessed or distributed
images of the abuse which were made by the original abuser.
We agree and vacate the restitution order and remand.
BACKGROUND
Galan was not the original abuser of Cindy. That abuser
perpetrated and made images of his disgusting crimes against
Cindy over an extended period. However, those activities
ended about eleven years before Galan committed the crimes
for which he was convicted. The government sought
restitution for the losses caused to Cindy as a result of
Galan’s crimes. See id. § 2259(a), (b)(3). Those included
future lost earnings, medical expenses incurred after the date
of the earliest crimes for which Galan was convicted
1
See 18 U.S.C. § 2252(a)(2).
2
See id. § 2252A(a)(5)(B).
3
The victim uses the pseudonym “Cindy” for purposes of this litigation.
4
By “original abuser” we mean a person who inflicted (or participated
in the infliction of) the actual physical abuse.
4 UNITED STATES V. GALAN
(September 7, 2011), vocational rehabilitation, and the cost
of an economic report. Galan contested the government’s
calculations on the basis that no attempt was made to
disaggregate the losses resulting from the original abuse from
the losses resulting from Galan’s own activities.
The district court agreed with the government,5 and this
appeal followed.
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231; we have jurisdiction pursuant to 28 U.S.C. § 1291.
“We review de novo the legality of a restitution order and,
if the order is within the statutory bounds, we review the
amount of restitution for abuse of discretion. We review for
clear error factual findings supporting an order of restitution.”
United States v. Peterson, 538 F.3d 1064, 1074 (9th Cir.
2008) (citation omitted); see also United States v. Hinkson,
585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).
DISCUSSION
There can be no doubt that restitution is mandatory6 for
the “full amount of [Cindy’s] losses,”7 which were incurred
5
The district court declared that “until the Ninth Circuit or the Supreme
Court mandates the ‘disaggregation’ of harm and/or losses caused by the
underlying sexual abuse of child pornography victims, I will not require
the government to do so when seeking restitution.”
6
18 U.S.C. § 2259(b)(4).
7
Id. § 2259(b)(1).
 UNITED STATES V. GALAN 5
“as a proximate result of [Galan’s] offense[s].”8 Galan does
not dispute that. Nor does Galan claim that the categories of
losses used by the government and the district court were
improper. Similarly, he does not dispute that Cindy suffered
some losses as a result of his crimes,9 or that he must pay
some restitution on account of those losses. The government
does not dispute that it has the burden of proving the amount
of Cindy’s losses that resulted from Galan’s crimes.10 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.
While Congress could and should have made
determination of the amount to which a victim is entitled a
simple matter, it regrettably did not. See, e.g., Paroline, __
U.S. at __, 134 S. Ct. at 1732–33 (Roberts, C.J., dissenting);
8
Id. § 2259(b)(3)(F).
9
He hardly could. As the Supreme Court has pointed out: “It is
common ground that the victim suffers continuing and grievous harm as
a result of her knowledge that a large, indeterminate number of individuals
have viewed and will in the future view images of the sexual abuse she
endured.” Paroline v. United States, __ U.S. __, __, 134 S. Ct. 1710,
1726, 188 L. Ed. 2d 714 (2014). Moreover, “[t]he unlawful conduct of
everyone who reproduces, distributes, or possesses the images of the
victim’s abuse . . . plays a part in sustaining and aggravating this tragedy.
And there can be no doubt Congress wanted victims to receive restitution
for harms like this.” Id.
10
It hardly could. The order of restitution “shall be issued and enforced
in accordance with section 3664.” 18 U.S.C. § 2259(b)(2). Thus: “The
burden of demonstrating the amount of the loss sustained by a victim as
a result of the offense shall be on the attorney for the Government.” 18
U.S.C. § 3664(e); see also Paroline, __ U.S. at __, 134 S. Ct. at 1719.
6 UNITED STATES V. GALAN
United States v. Kennedy, 643 F.3d 1251, 1266 (9th Cir.
2011). However, the Supreme Court has answered the
question before us. In Paroline, __ U.S. at __, 134 S. Ct. at
1722, it held: “Restitution is therefore proper under § 2259
only to the extent the defendant’s offense proximately caused
a victim’s losses.”
As the Court demonstrated, the phrase “proximate cause”
hides (or encompasses) interpretive problems of its own.
That is to say, while, in general, it is easy enough to say that
a victim’s losses from the ongoing possession and
distribution of images are direct and foreseeable results of
those activities,11 that does not mean that all of the ongoing
losses the victim suffers were in fact caused by those very
activities.12
The Court went on to discuss and describe the myriad of
problems involved in deciding what proportion of the losses
caused by trafficking should be ascribed to a possessor or
distributor of child pornography involving a particular victim.
See id. at __, 134 S. Ct. at 1722–28. The number of
possessors and distributors can, of course, run into the
thousands. See id. at __, 134 S. Ct. at 1723.
However, the Court did note a difference between original
abusers and those who engage in distribution. As it said at
the outset of its causation analysis: “Complications may arise
in disaggregating losses sustained as a result of the initial
physical abuse, but those questions may be set aside for
present purposes.” Id. at __, 134 S. Ct. at 1722. Like the
11
Id. at __, 134 S. Ct. at 1722.
12
Id.
UNITED STATES V. GALAN 7
case at hand, the case before the Court was not against an
original abuser. Nevertheless, the Court mentioned the
complications that might arise in disaggregating the losses
caused by the original abuser from those caused by others
who later possess or distribute images. If losses caused by
the latter were not to be separated from those caused by the
original abuser, there would be no complications because
there would be no need to disaggregate. Thus, the Court
plainly perceived a need for separation. In fact, the Court
again recognized the distinction between original abusers on
the one hand, and distributors and possessors on the other,
when it declared that one factor a district court could consider
in determining what proportion of the distribution losses
would fall upon an individual distributor or possessor was
whether “the defendant had any connection to the initial
production of the images.” Id. at __, 134 S. Ct. at 1728. That
underscores the fact that an original abuser is responsible for
harms caused by his actions, including ongoing harms;
distributors and possessors of images of those actions commit
separate wrongs with separate, albeit awful, harmful
consequences of their own. Moreover, it is logical to separate
the two. If an original abuser had stayed in his own
clandestine and sick little world, a terrible trauma would have
been inflicted upon the victim, and the abuser would have to
atone for all of the consequences of that wrongdoing. When
distribution of images is added, an original abuser (or another
person) would commit and put in motion a whole different set
of abuses. Those who later participate in distribution or
possession, especially at a more remote time, are part of a
distribution crime, but not of the physical-abuse crime.
Galan’s offenses were those of a later participant; he had
nothing to do with the original abuse.
8 UNITED STATES V. GALAN
Thus, the principles set forth by the Court lead to the
conclusion that Galan should not be required to pay for losses
caused by the original abuser’s actions. As the Tenth Circuit
Court of Appeals held:
We think it inconsistent with “the bedrock
principle that restitution should reflect the
consequences of the defendant’s own
conduct” to hold [a defendant] accountable for
those harms initially caused by [the victim’s]
abuser. Thus, to the extent that the district
court relied on an expert report that did not
disaggregate these harms, the district court’s
adoption of $1.3 million as the total measure
of damages cannot stand.
United States v. Dunn, 777 F.3d 1171, 1181–82 (10th Cir.
2015) (citation omitted); see also United States v. Rogers,
758 F.3d 37, 39–40 (1st Cir. 2014) (per curiam).
We express no opinion about what portion of a victim’s
ongoing loss should be attributable to an original abuser. No
doubt that will vary from case to case depending on many
factors, for example: egregiousness of the original abuse; how
a victim can (or does) cope with that kind of abuse when
distribution of images does not follow; and the particular
victim’s own reactions to the various traumas to which the
victim has been subjected. Of course, in the case at hand, the
record does not focus on that apportionment question. We
leave the appropriate development of the record in that regard
to the parties and the district court. We have no illusion that
the task will be easy, but it does not appear any more
impossible than the other tasks imposed upon courts
attempting to apportion restitution amounts in this area. If the
UNITED STATES V. GALAN 9
ultimate apportionment is not scientifically precise, we can
only say that precision is neither expected nor required. See
Paroline, __ U.S. at __, 134 S. Ct. at 1728–29. We recognize
that the ultimate decision will be a mix of “discretion and
estimation,”13 and that it may result in “complication and
prolongation of the sentencing process,”14 but the courts (and
the government) cannot decline to make an effort to
accomplish what Congress and the Court have required.
CONCLUSION
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.
However, we do agree that this area, in which Congress
has adopted a scheme that at least approaches the limits of
fair adjudication15 despite attempts by the courts to avoid
13
Id. at __, 134 S. Ct. at 1729.
14
18 U.S.C. § 3663(a)(1)(B)(ii).
15
See Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV.
L. REV. 353 (1978).
10 UNITED STATES V. GALAN
caprice,16 cries out for a congressional solution.17 In the
meantime, we must proceed with what we have in the manner
that Congress and the Court have required.
Restitution order VACATED, and REMANDED for
further proceedings consistent with this opinion.
16
See Paroline, __ U.S. at __, 134 S. Ct. at 1729 (“courts can only do
their best”); cf. id. at 1730 (Roberts, C.J., dissenting) (“it is not possible
to do anything more than pick an arbitrary number”).
17
See id. at __, 134 S. Ct. at 1735 (Roberts, C.J., dissenting); id. at __,
134 S. Ct. at 1744 (Sotomayor, J., dissenting); Kennedy, 643 F.3d at 1266.