Sixth Rules Courts Cannot Impose Joint and Several Liability for Child Porn Restitution – U.S. v. Hargrove
I’ve written here several times before about the practice of ordering financial restitution from defendants caught in possession of child pornography. This is not done through a lawsuit; federal law permits criminal courts to make orders of restitution. However, because the restitution law was designed for situations where the victim and the defendant had direct contact, courts have come up with widely varying ways to handle restitution in child pornography possession cases, where the victim—the child in the pornography—has almost never met the defendant who possessed the pornography. So I was interested to see another federal appeals court weigh in on how to split liability among defendants in U.S. v. Hargrove. Ultimately, the Sixth U.S. Circuit Court of Appeals ruled that the district court may not impose joint and several liability on Christopher Hargrove for his part of the injuries to the young women claiming financial restitution.
Police examination of Hargrove’s computer found more than 800 images of child pornography and 16 videos. Among them were images of Vicky, Amy, and L.S., pseudonyms of young women who were sexually exploited as children by people who took pictures. Hargrove took a plea bargain and pleaded guilty to one count of possession of child pornography, but then fled; after he was caught, he also pleaded guilty to failure to appear. He was sentenced to five years in prison for the child porn possession and an additional year for fleeing, as well as 20 years of supervised release. All three victims requested restitution in the full amount of their damages, but the Tennessee district court held that the amounts should be apportioned because they had already collected from other defendants. It ordered him to pay $3,000 to each, or if the victims cannot get needed care for lack of money, alternatively made Hargrove jointly and severally liable for $150,000 to each victim.
Hargrove’s appeal focused only on the restitution order. At the outset, the parties agreed that the district court should have, under 2012 and 2013 Sixth Circuit rulings, determined whether Hargrove proximately caused the victims’ losses. Hargrove argued that he could not have because no evidence showed they knew he possessed the images. The Sixth found this irrelevant; harm to these defendants is caused by their knowledge that the material is out there, so they need not have interacted with Hargrove personally. Proximate cause may exist when an individual act that is insufficient in itself is aggregated with many others, the Sixth said. However, it asked the district court, on remand, to determine whether the injuries the victims claimed were caused by Hargrove’s actions, and reminded the district court to exclude harms incurred before Hargrove possessed the materials. It further suggested that rather than using joint and several liability, the district court use a formula it had approved in a previous case.
Interestingly, Judge Clay’s concurrence argued that joint and several liability would make more sense than the formula. In my opinion as a cyber crime attorney who handles many child pornography cases, this disagreement underscores the fact that the restitution law is being used in ways Congress didn’t intend. I believe the law doesn’t provide a way to apportion liability between many defendants who don’t know each other or the victim because Congress didn’t anticipate such a situation. Yet that’s exactly the situation these internet-based child pornography crimes create. Most federal appeals courts are allowing these claims, so the best way to resolve the joint liability issue would be for Congress to clarify the rules. Until that happens, defendants like Hargrove will continue being liable for huge sums of money for a possession crime.
If you’re accused of a child pornography crime or another serious crime involving technology, don’t wait to call Seltzer Law, P.A. for help. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor. You can reach us online or call toll-free at 1-888-THE-DEFENSE (1-888-843-3333).
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