Federal Appeals Court Partially Reverses Restitution Order – United States v. Michael Wright

June 20, 2011 by David S. Seltzer

As a child pornography criminal defense attorney, I’ve written here several times, most recently in March, about the trend toward courts ordering financial restitution payments in child porn cases. In these cases, people convicted of possessing, sending or receiving the materials — but not creating it — are ordered to pay money to the children whose pictures appeared in the materials. One particularly active victim is a young woman who is named only as “Amy” in court papers, who was forced to participate in making child pornography when she was under 10. Amy shows up in a new court ruling by the Fifth U.S. Circuit Court of Appeals, which says a Louisiana man was correctly ordered to pay her restitution. But in United States v. Wright, the court sent the case back to trial court to determine the amount, saying the original amount had no basis in the record.

Michael Wright pleaded guilty to possession of child pornography, which waived his right to appeal but not his right to contest penalties in excess of the statutory maximum. The court later ordered Wright to pay $529,661 to Amy as restitution, to fund counseling and other financial needs stemming from her sexual abuse. Wright moved to oppose this, arguing that the restitution law requires victims to show defendants directly harmed them, which he said did not apply in his case. The district court denied the motion and Wright appealed.

The Fifth Circuit started by noting that it reviewed Wright’s appeal under the precedent of its March decision, which found against a similar defendant. After dismissing prosecutors’ arguments that Wright had waived the issue, the Fifth used the same logic used in the March decision to find against Wright. The relevant section of the law, 18 USC sec. 2259(b)(3)(F), defines the victim’s losses including “any other losses suffered by the victim as a proximate result of the offense.” Wright argued that Amy’s losses were not a proximate result of his possession of images created years before he possessed them and without her knowledge. However, the Fifth found in both cases that the language at issue did not apply to the entire sec. 2259 and was only a catchall provision for “other losses,” and that Amy was a victim because she was harmed by Wright’s possession. However, the court then went on to find an abuse of discretion in the amount of money awarded by the trial court. The trial court gave no reasoning whatsoever as to why Wright should pay some costs but not others, and did not discuss his liability as one of many people who downloaded the materials. Thus, it sent the case back to trial court for a clearer determination of what costs Wright should pay.

In March, I wrote that I disagreed with the earlier decision, and the same logic applies in this case. As a cyber crime criminal defense lawyer, I know restitution laws were originally created to keep criminals from profiting from lucrative crimes like fraud and drug trafficking. That logic doesn’t apply to downloading child pornography — something done for personal gratification. Even if Wright hadn’t been caught, he still wouldn’t have profited from his crime. And as a child porn possession defense attorney, I disagree with the court’s underlying logic that Amy was harmed by defendants’ possession of child pornography; the harm to her is real, but was done by her abuser. I look forward to hearing from other courts on this subject.

If you’re accused of any child pornography crime, even simple possession, the stakes are very high. For a free consultation on your case and your legal rights, you should call Seltzer Law, P.A. at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email today.

Similar blog posts:

Federal Appeals Court Ruling Loosens Standard of Proof for Child Porn Compensation

Adult Victim of Child Pornography Production Seeks Criminal Restitution Payments

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