United States v. Paul Beckmann

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 14-3086
___________________________
United States of America
lllllllllllllllllllll Plaintiff – Appellee
v.
Paul Beckmann
lllllllllllllllllllll Defendant – Appellant
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: March 13, 2015
Filed: May 15, 2015
[Published]
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Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL, 1 District
Judge.
____________
HARPOOL, District Judge.
1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri, sitting by designation.
Paul Beckmann pled guilty to one count of possession of child pornography
after having been previously convicted and sentenced for possession of child
pornography in 2001. See 18 U.S.C. § 2252A(a)(5)(B), (b)(2). The district court2
sentenced Beckmann to 120 months of imprisonment, a lifetime of supervised
release, and ordered him to pay $9,000 of restitution. On appeal, Beckmann
asserts that the district court erred by: (1) denying his motion to suppress evidence
found on an external hard drive as the result of an illegal search under the Fourth
Amendment; (2) denying his motion to suppress evidence as the result of an
intentional and deliberate violation of Rule 41; and (3) ordering restitution in the
amount of $9,000. We affirm.
I.
Since Beckmann’s conviction for possession of child pornography in 2001,
Beckmann has been required to register as a sex offender. On August 2, 2011, as
part of a routine sex offender verification through the United States Marshal’s
Office, Jefferson County Deputies Barbato and Thebeau visited Beckmann’s home.
The purpose of the visit was to verify Beckmann’s address and to ensure that he
was complying with any conditions related to his status as a sex offender.
Upon arrival, the deputies knocked on Beckmann’s door, told him they were
there for sex offender verification and asked to enter his home. Beckmann
consented. Once inside, the deputies observed a laptop computer on the coffee
table. Beckmann informed the officers that he was under no supervised release
conditions and that he was lawfully allowed to have a computer and internet
access. Deputy Barbato asked to look through the contents of Beckmann’s laptop
in order to “make sure he was not accessing any content he’s not supposed to be
2
The Honorable Carol E. Jackson, United States District Judge for the
Eastern District of Missouri.
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accessing.” Beckmann consented. While Deputy Barbato searched the laptop,
Beckmann showed Deputy Thebeau around the rest of the residence. Deputy
Thebeau alerted Deputy Barbato that there was another computer in the upstairs
office. He then obtained permission to use the upstairs restroom. Deputy Barbato
proceeded upstairs partially for safety reasons and partially because he wanted to
make sure Defendant was not “going through anything he shouldn’t be.”
When Deputy Barbato arrived upstairs and looked into the office where
Beckmann went, he saw a computer desk with a monitor on it and Beckmann
underneath messing with wires/cords. To alert Beckmann to his presence, Deputy
Barbato asked Beckmann if this was the “other” computer. Beckmann seemed
startled and responded yes. Deputy Barbato then asked if he could take a look at
that computer, as well. Beckmann consented.
Deputy Barbato sat down and observed one computer tower and two
external hard drives underneath the desk. Both of the external hard drives were
connected to the tower but the power cord to one of them was unplugged from the
wall. Deputy Barbato believed that these were the cords Beckmann was
manipulating, and he believed that Beckmann had been trying to shut off the
computer. The deputy plugged the power cord to the unplugged external hard
drive back into the wall and began to search the computer, including the external
hard drives. By this time, Beckmann had exited the office. The deputy admitted
that he did not get specific consent to search the external hard drives nor did he get
consent to plug the one external hard drive back into the wall; however, he
considered the external drives to be a part of the “computer” because they were
plugged into the computer. During his search, Deputy Barbato discovered file
names suggesting child pornography. The deputy asked Beckmann about the
suspicious files and Beckmann stated that he did not wish to answer. The officers
then placed Beckmann into investigative detention. After speaking with his
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attorney, Beckmann signed a consent form allowing the officers to seize the laptop,
computer, and external hard drives pending application for a search warrant.
The government obtained a search warrant on August 15, 2011 to copy and
search the property seized. The warrant specified that it was to be executed on or
before August 29, 2011. “Execution” of the search warrant required a forensic
analyst to copy and search existing and deleted computer files. The investigator
began analyzing the seized computers in November of 2011 and the external hard
drives on January 24, 2012. The analyst located over 2,000 images of child
pornography on the external hard drive. On April 25, 2012, a report was prepared
documenting what was found on the computer media. A return of inventory was
filed with the district court on November 15, 2013. The sergeant handling the case
stated that he did not intend to prejudice Beckmann or delay the proceedings but
merely forgot to return the warrant.
On July 24, 2013, the grand jury returned a one-count indictment against
Beckmann for possession of child pornography. Beckmann filed a motion to
suppress certain evidence and statements. The magistrate judge held two
evidentiary hearings on Beckmann’s motion before issuing a report and
recommendation. Beckmann filed objections to the report and recommendation,
and the district judge reviewed the issues de novo. The district judge sustained,
adopted, and incorporated the magistrate’s report and recommendation with the
exception of two factual findings. The district court granted Beckmann’s motion
to suppress certain statements made by Beckmann but denied the motion as to
other statements and the physical evidence. Beckmann elected not to proceed to
trial and instead entered a plea of guilty, reserving his right to appeal the order on
his motion to suppress.
Prior to sentencing, the parties submitted memoranda concerning the
appropriate amount of restitution to be ordered. The government submitted victim
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impact statements from three of the victims of child pornography – Cindy, L.S.,
and Vicky. Beckmann possessed three images of Cindy, ten images of L.S., and
fourteen videos and two images of Vicky. During sentencing, the government
requested $3,000 of restitution per victim based on the mean amount of restitution
ordered in the recent Supreme Court case of United States v. Paroline and citing
two other district court opinions. The government further offered a computation of
restitution based on the average number of former and expected claims per victim
and the average amount of loss attributable to each defendant over a twenty year
period. These calculations yielded the following restitution amounts: Cindy -
$1,600, L.S. - $2,400, and Vicky - $675. Beckmann argued that the government
failed to make the causal link required by Paroline in order to justify such
significant restitution. Even if it could, Beckmann argued, the range of $200-$300
would be more appropriate because Beckmann was a mere possessor.
The district court held that Beckmann’s mere possession of child
pornography was a proximate cause of the victims’ losses because Beckmann
contributed to “ongoing victimization” and “ongoing victimization causes ongoing
harm.” The court further held that the government met its burden to show an
appropriate amount of restitution based on the limited information available. The
court noted that Paroline cautions against a formal mathematical formula and
ultimately ordered $3,000 of restitution per victim, finding the amount reasonable
in light of prior restitution orders, the number of potential defendants involved, and
Beckmann’s relative culpability.
II.
Beckmann first argues that the district court erred by denying his motion to
suppress the incriminating evidence found on his external hard drive as the fruit of
an illegal search under the Fourth Amendment. “When reviewing the denial of a
motion to suppress, we review the district court’s factual findings for clear error
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and its legal conclusions de novo.” United States v. Anderson, 688 F.3d 339, 343
(8th Cir. 2012). We will affirm the denial of a motion to suppress unless we find
that the district court’s decision “is unsupported by the evidence, based on an
erroneous view of the law, or the Court is left with a firm conviction that a mistake
has been made.” United States v. Riley, 684 F.3d 758, 762 (8th Cir. 2012)
(citations omitted).
The district court found that Beckmann gave the officers consent to search
his computer.3 Consensual searches are reasonable under the Fourth Amendment.
Florida v. Jimeno, 500 U.S. 248, 250-51 (1991). The standard for measuring the
scope of a person’s consent is “objective reasonableness,” which asks what the
typical, reasonable person would have understood from the exchange between the
officer and the suspect. Id. at 251. While the voluntariness of a defendant’s
consent to search is a question of fact that is reviewed for clear error, United States
v. Quintero, 648 F.3d 660, 665 (8th Cir. 2011), the reasonableness of an officer’s
reliance on such consent is a question of law that is reviewed de novo. United
States v. James, 353 F.3d 606, 615 (8th Cir. 2003).
Here, Beckmann argues that it was unreasonable for Deputy Barbato to rely
on Beckmann’s consent to search the computer in order to justify his search of the
external hard drive. The scope of a consensual search is “generally defined by its
expressed object.” Jimeno, 500 U.S. at 251. For example, where an officer asks to
search a car for suspected narcotics, and the occupant agrees without explicit
limitation on the scope of the search, the officer may search the entire car including
containers therein that may hold narcotics. Id. If the consent “would reasonably
be understood to extend to a particular container” then “the Fourth Amendment
3
Beckmann denies that he consented to the search of the upstairs computer;
however, the magistrate judge and district judge made clear and explicit factual
findings that show Beckmann did consent to the search. Suppression Order 4-6;
Report & Recommendation ¶ 16. Beckmann does not argue these findings are
clearly erroneous.
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provides no grounds for requiring a more explicit authorization.” Id. at 252.
Reasonableness is measured in objective terms based on the totality of the
circumstances. Ohio v. Robinette, 519 U.S. 33, 39 (1996). Where a person is
present and fails to object to the continuation of a search, courts consider such
circumstantial evidence to provide proof that the search conducted was within the
scope of consent. See United States v. Lopez-Mendoza, 601 F.3d 861, 868 (8th
Cir. 2010).
Applying these standards, Deputy Barbato’s belief that consent to search the
computer included consent to search the connected but unplugged external hard
drive was not objectively unreasonable. Deputy Barbato testified that he believed
he had consent to search the external hard drive based on his understanding of the
word “computer” and the fact that the external drive was attached to the computer
tower. The deputy’s belief is not objectively unreasonable in light of the common
understanding that the term “computer” encompasses the collection of component
parts involved in a computer’s operation. See, e.g., United States v. Herndon, 501
F.3d 683, 690 (6th Cir. 2007). Beckmann did not explicitly limit the scope of his
consent to search the computer, nor did he object when Deputy Barbato plugged
the external hard drive into the electrical outlet and began searching.4 Based on the
4
Beckmann argues that he was not in the room at the time Deputy Barbato
plugged the external hard drive into the wall in order to have had the opportunity to
withdraw or limit his consent. The magistrate judge stated:
After he plugged in the power cord, Deputy Barbato got up and sat in
the chair at the desk. He then used the computer mouse with the
monitor to activate the computer. Barbato thought the computer
desktop displayed on the monitor looked normal, although it had icons
he was unfamiliar with. By this time Beckmann had walked out of the
room.
Report & Recommendation ¶ 18. Even assuming Beckmann was not present in the
room at the time Deputy Barbato plugged the external hard drive’s power cord into
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totality of the circumstances presented here, Deputy Barbato had an objectively
reasonable basis to conclude that Beckmann consented to the search of the external
hard drive.
Beckmann argues Deputy Barbato’s belief was unreasonable because an
external hard drive cannot reasonably be interpreted to constitute a “component
part involved in the computer’s operation.” He argues that merely plugging a
device into a computer does not render the device a part of the computer’s
operation, and he analogizes an external hard drive to a cellular telephone. He
warns that the district court’s order sets “dangerous precedent for law enforcement
to be able to search anything and everything that can be plugged into a
computer[.]” We disagree. First and foremost, the scope of the consent to search
here, as in all cases, is based on the totality of the circumstances including the
interaction between the parties, the purpose of the search, and the circumstantial
evidence surrounding the search. Second, a typical, reasonable person is more
likely to consider a connected external hard drive a “component part involved in a
computer’s operation” as compared to a connected cellular telephone. Unlike a
cellular telephone, the sole purpose of an external hard drive is to store computer
data. Additionally, external hard drives, unlike cellular telephones, are
functionally inoperable – and their contents unreviewable – when unplugged from
a computer. Thus, Deputy Barbato’s belief that the attached external hard drive
constituted a “component part involved in the computer’s operation” was not
objectively unreasonable.
Beckmann also argues that Deputy Barbato’s belief was unreasonable
because the deputy witnessed Beckmann attempt to unplug the external hard drive
from its power source, which effectively limited the scope of the consent. The
the wall, “[w]e have not, to date, found that officers have a duty to ensure that an
individual has an opportunity to withdraw or limit consent.” United States v.
Guevara, 731 F.3d 824, 829 (8th Cir. 2013).
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Court finds Beckmann’s argument unpersuasive. Beckmann provided explicit,
unlimited consent to search his computer after the deputy witnessed him
manipulating wires under the desk. Beckmann could have denied consent to
search the upstairs computer or limited the scope of the consent, but he did not.
The evidence demonstrates that Beckmann knew how to limit his consent, and did
so during other situations that day, 5 but he did not do so in this instance. Where a
suspect provides general consent to search, only an act clearly inconsistent with the
search, an unambiguous statement, or a combination of both will limit the consent.
See United States v. Lopez-Mendoza, 601 F.3d 861, 867 (8th Cir. 2010). A subtle
indication that a suspect wishes to limit the scope of a search is insufficient to
render the search unreasonable. See, e.g., United States v. Siwek, 453 F.3d 1079,
1086 (8th Cir. 2006) (suspect’s statement that he lacked key to tonneau cover did
not amount to denial of consent); United States v. Gray, 369 F.3d 1024, 1026 (8th
Cir. 2004) (suspect’s statements that length of search was “ridiculous” and he was
“ready to go now” did not amount to withdraw of consent). Here, Beckmann
provided general consent to search his computer and he did not object when
Deputy Barbato plugged the external hard drive into the wall and began searching
it. These facts support the conclusion that the search conducted was within the
scope of Beckmann’s consent.
Based on the foregoing, the district court did not err in finding the search of
the external hard drive reasonable and denying Beckmann’s motion to suppress the
evidence derived therefrom.
5
After being placed into investigative detention, Beckmann advised that he
would answer some questions and not others and he agreed to give certain
permissions and not others. For example, he agreed to answer questions about his
computer but refused to answer any questions about downloading child
pornography. He also refused to allow the computer forensic analyst to verify the
titles of the files discovered.
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III.
Beckmann next challenges the district court’s denial of his motion to
suppress certain physical evidence pursuant to Federal Rule of Criminal Procedure
41. Rule 41 states, in part, that a “warrant must command the officer to . . .
execute the warrant within a specified time no longer than 14 days” and the
“officer executing the warrant must promptly return it[.]” Fed. R. Crim. P.
41(e)(2)(A)(i), (f)(1)(D). Beckmann argues that the government failed to satisfy
the requirements of Rule 41 because there was a two- to five-month delay in
executing the warrant and a two-year delay in filing the return of inventory. The
district court found that the government violated Rule 41 but suppression was
improper.
When the government violates Rule 41, the Court may exclude the evidence
described in the search warrant only “if the defendant is prejudiced or if reckless
disregard of proper procedure is evident.” United States v. Mutschelknaus, 592
F.3d 826, 829 (8th Cir. 2010); see United States v. Freeman, 897 F.2d 346, 349
(8th Cir. 1990). Beckmann argues that the officers here exhibited a reckless
disregard for proper procedure in light of the length of the delays, the
government’s failure to seek additional time from the court either before or after
issuance of the warrant, and the deputy’s testimony that these searches are rarely
completed prior to the prescribed deadline. Beckmann argues that he was further
prejudiced by the delay because he was without his computers containing personal
information for over two years. He further argues that he was deprived a speedy
resolution to the investigation and the delay allowed witnesses’ memories to
become stale.
Upon review, the Court need not decide whether the government violated
Rule 41 because there was neither prejudice nor reckless disregard sufficient to
justify suppression of the physical evidence seized from Beckmann. Even
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assuming the government failed to comply with the due date of execution stated in
the search warrant, 6 and further assuming that such a delay constitutes a violation
of Rule 41,7 the government did not exhibit reckless disregard for proper
procedure in light of the length of time typically required to conduct computer
analyses in child pornography case, see United States v. Mutschelknaus, 592 F.3d
826, 830 (8th Cir. 2010) (quoting United States v. Syphers, 426 F.3d 461, 469 (1st
Cir. 2005) (collecting cases)), and Beckmann suffered no prejudice because
probable cause continued to exist and the evidence did not become stale or
deteriorate. See United States v. Gregoire, 638 F.3d 962, 968 (8th Cir. 2011).
While best practice would have been for the detectives to file a motion seeking
additional time to execute the warrant, their failure to do so here does not warrant
suppression.
6
The Court notes that the government has not argued its search was proper
under Rule 41(e)(2)(B), which was designed to remedy the type of difficulty the
government encountered here. See Fed. R. Crim. P. 41(e)(2)(B) (“Unless
otherwise specified, the warrant [seeking electronically stored information]
authorizes a later review of the media or information consistent with the warrant.
The time for executing the warrant . . . refers to the seizure or on-site copying of
the media or information, and not to any later off-site copying or review.”); Fed. R.
Crim. P. 41 advisory committee’s note on the 2009 amendments (“This rule
acknowledges the need for a two-step process: officers may seize or copy the entire
storage medium and review it later to determine what electronically stored
information falls within the scope of the warrant. . . . A substantial amount of
time can be involved in the forensic imaging and review of information. This is
due to the sheer size of the storage capacity of media, difficulties created by
encryption and booby traps, and the workload of the computer labs.”).
7
Rule 41(e)(2)(A)(i) states that “[t]he warrant must command the officer to .
. . execute the warrant within a specified time period no longer than 14 days.”
Here, there is no dispute the warrant complied with the terms of Rule 41 because it
was issued on August 15, 2011 and required execution by August 29, 2011. Thus,
Beckmann’s argument is not that the warrant failed to comply with the Rule, but
that the government failed to comply with the warrant.
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Second, as to the government’s two-year delay in returning the warrant, the
district court made a credibility determination that the detective’s delay was due to
inadvertence rather than deliberate and intentional disregard for the rules. This
Court is not in a position to overturn the district court’s credibility determination.
United States v. Shafer, 608 F.3d 1056, 1065 (8th Cir. 2010) (“A credibility
finding made by a magistrate judge after a hearing on the merits of a motion to
suppress is virtually unassailable on appeal.” (internal quotations omitted)).
Therefore, the Court is unable to find reckless disregard for proper procedure. See
United States v. Berry, 113 F.3d 121, 123 (8th Cir. 1997) (analyzing the “reckless
disregard” issue as akin to “bad faith”). Moreover, Beckmann does not argue
sufficient prejudice to justify exclusion. See United States v. Turner, No. 13-2566,
2015 WL 1222274, at *6 (8th Cir. Mar. 18, 2015) (quoting United States v. Hyten,
5 F.3d 1154, 1157 (8th Cir. 1993) (“To determine prejudice, we ask whether the
search would have occurred had the rule been followed. If so, there is no prejudice
to the defendant.”). Not only would the search have occurred regardless of the
officers’ delay in returning the warrant, but the arguments furthered by Beckmann
concerning prejudice are unconvincing in light of the district court’s findings that
Beckmann received an initial inventory of the items seized, the witnesses were still
available at the time charges were brought, and the witnesses exhibited no
recollection problems at the evidentiary hearing. Furthermore, any interference
with Beckmann’s possessory interest in personal property is curable through means
other than suppression. See, e.g., Gregoire, 638 F.3d at 968 (finding suppression
not warranted where one-year delay between seizure and search of computer and
noting any interference with a possessory interest could have been remedied by
Rule 41(g), which the defendant did not invoke).
While we are concerned about the government’s failure to comply with the
warrant’s execution deadline and Rule 41’s “prompt” return mandate, exclusion of
the evidence is not the proper remedy without showing prejudice or reckless
disregard. Here, Beckmann failed to make such a showing. Accordingly, the
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district court did not err in denying Beckmann’s motion to suppress evidence
pursuant to Rule 41.
IV.
Beckmann finally argues that the district court erred in ordering restitution in
the amount of $9,000. “District courts routinely exercise wide discretion both in
sentencing as a general matter and more specifically in fashioning restitution
orders.” Paroline v. United States, 134 S. Ct. 1710, 1729 (2014). We review “the
district court’s decision to award restitution for an abuse of discretion and the
district court’s finding as to the amount of loss for clear error.” United States v.
Kay, 717 F.3d 659, 666 (8th Cir. 2013).
Under 18 U.S.C. § 2259(a), a district court shall order restitution for
offenses that involve the sexual exploitation of children and child pornography in
particular. Paroline, 134 S. Ct. at 1718. Restitution is proper under section 2259
only to the extent that the defendant’s offense proximately caused the victim’s
losses. Id. at 1720, 1722. The Supreme Court held that even mere possessors of
child pornography cause proximate harm to victims of child pornography. Id. at
1726. The Court explained that, because child pornography victims suffer
“continuing and grievous harm as a result of [knowing] that a large, indeterminate
number of individuals have viewed and will in the future view images of the sexual
abuse she endured[,]” all persons who reproduce, distribute, or possess child
pornography play a part in “sustaining and aggravating this tragedy.” Id. The
harder question in these cases is determining the appropriate amount of restitution
– i.e. how much of the victim’s losses are attributable to the defendant’s conduct.
In 2014, the Supreme Court provided guidance to district courts for
determining the appropriate amount of restitution in child pornography cases. Id.
at 1727-28. The Court stated that “a court applying § 2259 should order restitution
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in an amount that comports with the defendant’s relative role in the causal process
that underlies the victim’s general losses.” Id. at 1727. For example, the amount
of restitution would not be “severe” in a case where the defendant was a mere
possessor and where all of the victim’s losses come from the trade of her images;
however, the amount of restitution in that case would also not be “a token or
nominal amount.” Id. The Court went on to describe, more specifically, how to
calculate the appropriate amount of restitution:
There remains the question of how district courts should go about
determining the proper amount of restitution. At a general level of
abstraction, a court must assess as best it can from available evidence
the significance of the individual defendant's conduct in light of the
broader causal process that produced the victim's losses. This cannot
be a precise mathematical inquiry and involves the use of discretion
and sound judgment. . . .
There are a variety of factors district courts might consider in
determining a proper amount of restitution, and it is neither necessary
nor appropriate to prescribe a precise algorithm for determining the
proper restitution amount at this point in the law's development.
Doing so would unduly constrain the decisionmakers closest to the
facts of any given case. But district courts might, as a starting point,
determine the amount of the victim's losses caused by the continuing
traffic in the victim's images (excluding, of course, any remote losses
like the hypothetical car accident described above, see supra, at 1721),
then set an award of restitution in consideration of factors that bear on
the relative causal significance of the defendant's conduct in
producing those losses. These could include the number of past
criminal defendants found to have contributed to the victim's general
losses; reasonable predictions of the number of future offenders likely
to be caught and convicted for crimes contributing to the victim's
general losses; any available and reasonably reliable estimate of the
broader number of offenders involved (most of whom will, of course,
never be caught or convicted); whether the defendant reproduced or
distributed images of the victim; whether the defendant had any
connection to the initial production of the images; how many images
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of the victim the defendant possessed; and other facts relevant to the
defendant's relative causal role.
These factors need not be converted into a rigid formula, especially if
doing so would result in trivial restitution orders. They should rather
serve as rough guideposts for determining an amount that fits the
offense. The resulting amount fixed by the court would be deemed the
amount of the victim's general losses that were the “proximate result
of the offense” for purposes of § 2259, and thus the “full amount” of
such losses that should be awarded.
Id. at 1727-28 (internal citations omitted).
In this case, restitution was mandatory under 18 U.S.C. § 2259 and U.S.S.G.
§ 5E1.1. Beckmann, like Paroline, possessed and did not produce or distribute
child pornography. As the Supreme Court stated, mere possessors are still liable
for restitution because their actions proximately cause harm to the victim(s). Thus,
the district court appropriately found that the government met its burden to prove
proximate causation. The district court next found that the government met its
burden to prove an appropriate and reasonable amount of restitution based on the
victim impact statements, the restitution ordered in prior cases, the number of
potential defendants involved, and Beckmann’s relative culpability. The district
court cited the appropriate law, considered appropriate factors,8 and ultimately
8
Beckmann argues that the district court erred by failing to take into account
all of the factors cited in Paroline and by finding the government’s calculation
reasonable in lieu of examining the appropriate factors itself. Beckmann’s
argument is unpersuasive in light of the explicit language in Paroline. See 134 S.
Ct. at 1727 (“There are a variety of factors district courts might consider in
determining a proper amount of restitution, and it is neither necessary nor
appropriate to prescribe a precise algorithm for determining the proper restitution
amount at this point in the law's development.” (emphasis added)). Furthermore,
the sentencing transcript reveals that Judge Jackson did, in fact, consider the
parties’ arguments, the factors discussed in Paroline, and other courts’ orders
calculating restitution in child pornography cases. See Sentencing Tr. 18:17-22:23.
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ordered restitution in the amount of $3,000 per victim, which is an amount
consistent with the awards in similar possession cases since Paroline. 9 Therefore,
we cannot conclude that the district court erred in ordering restitution of $9,000,
with $3,000 awarded to each victim.
V.
For the foregoing reasons, we affirm the conviction and sentence.
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9
See, e.g., United States v. Rogers, 758 F.3d 37, 39 (1st Cir. 2014)
(upholding possessor’s restitution of $3,150 to victim who appeared in 9 video
clips); United States v. Hagerman, 586 F. App’x 64, 65 (2d Cir. 2014) (affirming
restitution of $3,281 for mere possession); United States v. Bellah, No. 13-10169-
EFM, 2014 WL 7073287, at *4 (D. Kan. Dec. 12, 2014) (in possession case,
awarding $1,500 for victim in 1 image, $1,500 for victim in 3 images, $7,500 for
each of five victims within series containing 68 images, and $5,000 for victim in 3
videos and 8 images); United States v. Reynolds, No. CRIM. 12-20843, 2014 WL
4187936, at *7 (E.D. Mich. Aug. 22, 2014) (awarding $8,000 for possession of 16
images of victim, and $14,500 for possession of 19 images of another victim);
United States v. Hernandez, No. 2:11-CR-00026-GEB, 2014 WL 2930798, at *10
(E.D. Cal. June 26, 2014) (restitution of $2,282.86 ordered for possessor based on
1 video and unidentified number of images); but see United States v. Cooley, No.
4:14-CR-3041, 2014 WL 5872720, at *3 (D. Neb. Nov. 12, 2014) (awards of
$1,910.46, $69.64, $24.24, $18.30, and $184.14).
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