Fort Lauderdale Cyber Crime Criminal Defense Lawyer on Restitution Payments for Possession of Child Pornography

March 3, 2009 by David S. Seltzer

The Connecticut Law Journal had a story March 2 on a precedent-setting court decision that could have a dramatic effect on my practice as a Miami cyber crimes criminal defense attorney. A man in Connecticut was convicted in federal court of downloading and distributing child pornography. Like most defendants accused of these crimes, he was sentenced to prison time -- in this case, six and a half years in federal prison. As a foreign (British) national who was convicted of a crime, he will also be deported once his sentence is over.

But unlike most child pornography distribution defendants, the man was also ordered by the court to pay financial restitution to one of the minors shown in the pornography. This is the first case that the Law Journal -- or I, as a cyber crimes criminal defense lawyer in South Florida -- found in which someone was ordered to pay restitution for merely downloading and distributing the materials. In previous federal child pornography cases, only people convicted of actually making the pornography have been ordered to pay restitution, and the greatest amount ever ordered was just over 25% of the $200,000 ordered in this case.

A court can (and sometimes must) order people convicted of child pornography expenses to pay financial restitution to victims, but that law specifies a conviction for exploitation of a child. The attorneys in this case disagree over whether that was the case. A private lawyer hired by the victim (in addition to the prosecutor) argues that sexual exploitation is repeated with each new download, regardless of whether the defendant actually had sexual contact with the victim. The defense attorney, by contrast, points out that the victim couldn’t have known when or how many times the materials were downloaded, making it difficult to argue that she was harmed with each new download. He intends to appeal the decision to the Second U.S. Circuit Court of Appeals.

It’s worth noting that there’s another financial dimension to this case. Before his prosecution, the defendant was an executive at a drug company, although he has since been fired. According to the Law Journal, he owned four homes. This may explain the $200,000 restitution order, which was substantially larger than previous restitution orders in child pornography cases -- the judge may simply have decided that the defendant could afford it. The attorney for the defendant speculated that the number of restitution claims might grow if victims and their lawyers see that it’s “...a lucrative area if a defendant has assets.”

As a Fort Lauderdale child pornography possession criminal defense attorney, I am eager to see what the court will say, especially if the idea of financial restitution catches on in federal child pornography cases. Restitution orders are intended to stop people convicted of crimes from profiting from wrong acts, especially if they are enriched at the victim’s expense. Unlike with, say, an illegal download of a movie, the defendant did not steal the victim’s product and deprive her of profit. Nor did he help make the pornography, which would clearly make him guilty of exploiting her. If a restitution order, or any other court order, doesn’t meet the circumstances specified by the law, I do not believe it’s a just order -- no matter how heinous the underlying crime might be.