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declining to order restitution under § 2259 because the court was "unable to find by a preponderance of the evidence that [the victim's] hospitalization and counseling expenses were a proximate result of [the defendant's] offenses"
Summary of this case from U.S. v. CoutentosOpinion
No. 05-CR-49-LRR.
October 9, 2007
ORDER
I. INTRODUCTION
On August 28, 2007, Defendant personally appeared before the court for a restitution hearing ("Hearing"). Assistant United States Attorney Ian Thornhill represented the government. Attorney Anne Laverty represented Defendant Danny Lee Raplinger. The issue of restitution is now fully submitted and ready for decision.
At the Hearing, Defendant waived any right to be personally present at the time the court pronounced its decision on restitution.
II. BACKGROUND
In September of 2004, Defendant met S.S. in a chatroom on the Internet. Defendant was 34-years old and S.S. was 15-years old. From September to December of 2004, Defendant and S.S. met in person and engaged in a wide variety of sexual activity on as many as fifty to sixty occasions.In October of 2004, Defendant introduced S.S. to Joel Rich. Rich took Polaroid photographs of Defendant and S.S. engaged in sexually explicit conduct; Defendant took sexually explicit photographs of S.S.; and S.S. and Rich engaged in sexual activity. Defendant later scanned the photographs onto his computer and uploaded them onto the Internet. He also emailed some of the photographs to S.S.
On May 5, 2005, law enforcement officers arrested Defendant on various state charges arising out of his sexual abuse of S.S. On May 12, 2006, Defendant was sentenced to concurrent ten-year terms of imprisonment on the state charges.
On August 17, 2006, Defendant was charged in this court in a three-count Superseding Indictment. Count 1 charged that, in late 2004, Defendant attempted to sexually exploit a minor and sexually exploited a minor, in violation of 18 U.S.C. § 2251(a) and (e) and § 2(a) and (b). Count 2 charged that, beginning no earlier than late 2004 and continuing through at least May of 2005, Defendant distributed child pornography, in violation of 18 U.S.C. § 2252A(a)(1) and (b)(1). Count 3 charged that, in or about May of 2005, Defendant possessed child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
On May 18, 2005, the grand jury charged Defendant in Count 1 of a two-count Indictment. Count 1 charged Defendant with Attempted Sexual Exploitation of a Minor and Sexual Exploitation of a Minor, in violation of 18 U.S.C. § 2251(a) and (e) and § 2(a) and (b). Count 2 charged Defendant's co-defendant, Joel Rich, with the same crime. Rich ultimately pled guilty, and the court sentenced him to 210 months of imprisonment. See United States v. Rich, No. 05-CR-49-LRR (N.D. Iowa Feb. 14, 2006).
On September 27, 2006, a unanimous jury found Defendant guilty as charged on all three counts of the Superseding Indictment.
On July 20, 2007, the court sentenced Defendant to 457 months and ten days of imprisonment. At the request of the government, however, the court continued all discussion of restitution until a later date.
On August 28, 2007, the court held the Hearing. Two witnesses testified on behalf of the government: Ms. Ruth Walker, Restitution Subrogation Coordinator for the Iowa Department of Justice, and Carol Meade, Outpatient Behavioral Health Program Manager at St. Luke's Hospital in Cedar Rapids, Iowa. Over Defendant's objection, the court also received two of the government's exhibits into evidence.
III. LEGAL STANDARD FOR RESTITUTION
The parties agree that 18 U.S.C. § 2259 provides the framework for any restitution award in this case, because Defendant's offenses of conviction fall within Chapter 110 of the United States Code. Section 2259 provides:
§ 2259. Mandatory restitution
(a) In general. — Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under [Chapter 110 of the United States Code].
(b) Scope and nature of order. —
(1) Directions. — The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses as determined by the court pursuant to paragraph (2).
(2) Enforcement. — An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.
(3) Definition. — For purposes of this subsection, the term "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.
(4) Order mandatory. —
(A) The issuance of a restitution order under this section is mandatory.
(B) A court may not decline to issue an order under this section because of —
(i) the economic circumstances of the defendant; or
(ii) 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.
(c) Definition. — For purposes of this section, the term "victim" means the individual harmed as a result of a commission of a crime under this chapter. . . .18 U.S.C. § 2259 (emphasis in original).
Although other, more general restitution statutes may also apply by their terms to this case, the court gives § 2259, the more specific restitution statute, precedence. See United States v. Julian, 242 F.3d 1245, 1246 (10th Cir. 2001) (comparing § 2259 with § 3663A) (citing Busic v. United States, 446 U.S. 398, 406 (1980)).
The Eighth Circuit Court of Appeals has never construed § 2259. Other courts have indicated that the purpose of the statute "is to force offenders to pay full restitution to the identifiable victims of their crimes." United States v. Croxford, 324 F. Supp. 2d 1230, 1249 (D. Utah 2004) (citations and internal quotation marks omitted), aff'd, 170 F.App'x 31 (10th Cir. 2006). The statute is broadly worded: any loss suffered by a crime victim as a proximate result of the offenses of conviction qualifies. See United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) ("Congress mandated broad restitution for a minor victim following an offender's conviction of federal child sexual exploitation and abuse offenses."); see also United States v. Searle, 65 F.App'x 343, 346 (2d Cir. 2003) ("The perpetrator must pay `the full amount of the victim's losses' including medical services, transportation, and temporary housing as well as `any other losses suffered by the victim as a proximate result of the offense.'" (quoting 18 U.S.C. § 2259(b)(3))). Courts have thus required defendants to pay for fifty days of hospitalization for depression and suicidal ideation, Crandon, 173 F.3d at 125-26, future counseling expenses, United States v. Laney, 189 F.3d 954, 966-67 (9th Cir. 1999), United States v. Danser, 270 F.3d 451, 455-56 (7th Cir. 2001) and United States v. Julian, 242 F.3d 1245, 1246-48 (10th Cir. 2001), a new car, Searle, 65 F.App'x at 346, and the remodeling of a porch into a utility room, id. at 347.
The government bears the burden to prove any restitution under § 2259 by a preponderance of the evidence. Crandon, 173 F.3d at 126; cf. United States v. Pierce, 479 F.3d 546, 553 (8th Cir. 2007) (stating that the same burden applies with respect to another restitution statute). Further, it is the duty of federal prosecutors to use their "best efforts" to ensure that crime victims receive, in a timely manner, the full amount of restitution to which they are entitled under the law. 18 U.S.C. § 3771. This duty does not rest in the first instance with probation officers or the court. See id. (placing responsibility to use "best efforts" in those "engaged in the detection, investigation, or prosecution of crime"); see also United States v. Bedonie, 413 F.3d 1126, 1130-31 (10th Cir. 2005) (holding district court lacked jurisdiction to sua sponte re-open criminal case and award victim restitution), rev'g United States v. Serawop, 303 F. Supp. 2d 1259 (D. Utah 2004) (asserting power of court to sua sponte investigate restitution and direct probation officers to do the same). Title 18, United States Code, Section 3771 provides:
(a) Rights of crime victims. — A crime victim has the following rights:
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(6) The right to full and timely restitution as provided in law.
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(c) Best efforts to accord rights. —
(1) Government. — Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a).18 U.S.C. § 3771(a)(6) and (c)(1) (emphasis in original).
For present purposes, the definition of "crime victim" in § 3771 includes "victims" entitled to full restitution under § 2259. See 18 U.S.C. § 3771(e) (defining "crime victim" as including "a person directly and proximately harmed as a result of the commission of a Federal offense").
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The government asks the court to order Defendant to pay restitution in the amount of $5,794.42 to the Iowa Department of Justice's Crime Victim Assistance Division ("CVAD") and $14,199.95 to Wellmark Blue Cross Blue Shield of Iowa ("Wellmark"). The government asserts that, as a proximate result of Defendant's offenses, CVAD and Wellmark paid for S.S.'s hospitalization and counseling expenses. S.S. was hospitalized from May to June of 2005 and underwent intensive outpatient counseling in July of 2006.
The court shall assume without deciding that CVAD, a state agency, and Wellmark, a private insurance company, may qualify as "victims" for purposes of § 2259. The court shall also assume without deciding that the government's figures add up. Even when the court makes such assumptions, however, the court nonetheless finds that there is insufficient evidence in the record to show that the hospitalization and counseling expenses were a proximate result of Defendant's offenses.
There is very little reliable evidence of proximate cause in the record. The government presented the court with double and triple hearsay evidence to show that S.S.'s hospitalization and counseling expenses may have been the proximate result of Defendant's offenses. Ms. Walker testified generally that CVAD approved payments to S.S. for her hospitalization and counseling expenses after verifying that such expenses were related to "sexual abuse." However, on cross-examination Ms. Walker admitted that (1) S.S.'s father informed CVAD only that S.S. was "sexually abuse[d]" by three men — Defendant, Rich and a man named "Scott Falknes" or "Scott Falkner" and (2) CVAD did not independently investigate whether any of these three men were actually responsible for committing a crime against S.S.
Two exchanges with Ms. Walker at the Hearing demonstrate the lack of reliability of the government's evidence as to whether S.S.'s hospitalization and counseling were a proximate result of Defendant's offenses of conviction. First, the following exchange took place between Attorney Laverty and Ms. Walker:
Q: How am I, as [Defendant's] attorney, to tell whether these services that were rendered by St. Luke's Hospital in fact were related to [Defendant's offenses of conviction]?
A: Because we received information from the provider on the verification form and also in the medical records, and determined that they were crime related, and I guess myself, under oath, telling you this.
The court and Ms. Walker later engaged in the following colloquy:
Q. [O]nce an application is made to [CVAD], you receive medical records and communication from the treatment providers, and then you go through those, and determine if the charges are for a crime covered; is that correct?
A. Yes.
Q. And in this case, the crime that was covered was sexual abuse?
A. Correct.
Q. All right. And what is your background to make those determinations as to whether or not it is related to the crime? Do you have like an RN or —
A. No, no medical background at all. . . . We rely on the provider to provide us with correct information.
Q. Okay. So if the provider says it's related to the crime of sexual abuse, that's . . . good enough for the Attorney General?
A. Well, as long as we have attached medical records that support that information. . . .
(Emphasis added.).
The testimony of the government's other witness, Ms. Meade, was also insufficient to establish proximate cause. Ms. Meade testified that she counseled S.S. in July of 2006 as part of an intensive outpatient program for children and adolescents. Ms. Meade testified that S.S. was suffering from depression and had difficulties getting along with her father. S.S. "discussed past sexual abuse of some older men in their thirties, she also discussed that she has a history of being suicidal, she has some cutting, self mutilation, she was cutting on her arms and that sort of thing." At no time did S.S. identify her assailants to Ms. Meade.
At the Hearing, Defendant's counsel pointedly asked Ms. Meade a number of questions. The following exchange took place:
Q. [I]s it indicated in the reports that [the counseling] [was] a direct result or caused by the pornography offense that [Defendant's] been convicted of?
A. I don't know that I read anyplace that there's a direct causal link. My professional opinion would be that there many times is.
* * * *
Q. Is there any way for you to know then whether it's her contact with [Defendant] and not her contact with other men that caused her to be hospitalized in 2005 and then appear again in your program in 2006?
A. The only link I know for sure was that the reason she went to the Child Protection Center [in 2005] was because of suspected abuse by [Defendant]. She didn't give me names personally, so —
Q. And is there any way to tell whether these expenses were caused by a pornography offense as opposed to a sexual abuse offense?
A. No, that would be difficult for me to say.
(Emphasis added.)
Although the court may rely upon hearsay at sentencing, the hearsay itself must be sufficiently reliable. United States v. Shevi, 345 F.3d 675, 679 (8th Cir. 2003); see also United States v. Fleck, 413 F.3d 883, 894 (8th Cir. 2005) ("The rules of evidence do not apply at sentencing, but information considered by the sentencing court must have `sufficient indicia of reliability to support [its] probable conclusion.'" (quoting United States v. Jones, 195 F.3d 379, 385 (8th Cir. 1999)). Here, the court finds that the double and triple hearsay evidence supplied by the government is not sufficiently reliable for the court to make findings by a preponderance of the evidence that Defendant was the proximate cause of S.S.'s hospitalization and counseling expenses. Ms. Walker failed to disclose to the court how she (or those unknown persons at CVAD upon whose conclusions she relied) determined that such expenses were a proximate result of Defendant's offenses of conviction. Her assertions stand uncorroborated by any other evidence: Ms. Meade denied knowledge of whether S.S.'s hospitalization and counseling expenses were a proximate result of Defendant's offenses of conviction. The government did not present the court with S.S.'s medical records or any testimony from S.S. or S.S.'s family that might give the court context for the medical treatment and counseling. As a consequence, the court simply has no way to gauge the whether expenses for such treatment and counseling were the proximate result of Defendant's crimes. Additional evidence is especially important in this case, because it is undisputed that at least one other man sexually abused S.S. at the time the offenses of conviction occurred and the evidence tends to indicate that S.S. has a history of self-mutilation and mental problems.
Crandon provides a good example of the sort of proof that enables a court to make a finding of proximate cause. In Crandon, the defendant sexually abused a 14-year-old girl. 124 F.3d at 125. He pled guilty to one-count of Receiving Child Pornography, in violation of 18 U.S.C. § 2252(a)(2). Id. The girl was subsequently hospitalized and eventually transferred to a long-term in-patient psychiatric facility. The district court ordered the defendant to pay over $57,000 in restitution. Id.
The Third Circuit Court of Appeals affirmed that there was sufficient evidence to show that the girl's medical expenses were the proximate result of the defendant's offense. The Third Circuit Court of Appeals pointed out that the government presented the district court with the following evidence of proximate cause: (1) an expert witness who testified that the conduct underlying the defendant's offense of conviction was "a significant contributing factor in [the victim's] worsening depression and suicide ideation" (2) "a report of the psychiatrist who treated [the victim] and concluded that [the defendant's] conduct `exacerbated' her depression and led to her hospitalization."; and (3) evidence that "the victim had never been treated for a mental health problem before the incident, sought medical treatment and required hospitalization shortly after the incident, and had been placed in a long-term psychiatric treatment center." Id. at 126.
The quantity and quality of evidence present before the district court in Crandon is lacking here. As a consequence, the court is unable to find by a preponderance of the evidence that S.S.'s hospitalization and counseling expenses were a proximate result of Defendant's offenses. Accordingly, the court shall not require Defendant to make restitution to CVAD or Wellmark. 18 U.S.C. § 2259.
V. DISPOSITION
Defendant is not required to make restitution to CVAD or Wellmark. The United States Probation Office is directed to prepare a new judgment and commitment order, because the original order states that restitution would be determined at a later hearing.