Second Circuit Rules Joint and Several Liability Inappropriate in Child Porn Restitution Case – U.S. v. Lundquist

September 16, 2013 by David S. Seltzer

I’ve written several blog posts about the thorny moral and legal issues involved in restitution for child pornography victims. In these cases, people who were unwillingly featured in child pornography ask for financial restitution—but not from the original molesters who took and distributed the images. Rather, they seek restitution from people who were caught in possession of the images, for the psychological harm caused by knowing the pornography is out there. One such person goes by “Amy” in court documents. Amy was the victim requesting restitution in U.S. v. Lundquist, a decision of the Second U.S. Circuit Court of Appeals. That court decided that Lundquist can be required to pay restitution, but said he cannot be required to pay restitution for harms he could not have caused, and holding him jointly and severally liable with people not before the district court.

Avery Lundquist was caught in possession of child pornography, pleaded guilty to receiving and possessing it, and sentenced to 210 months in prison. Among the images was one of Amy. Starting at the age of four, Amy was repeatedly raped by her uncle, who took pictures. The uncle was eventually caught, prosecuted and imprisoned, but the pictures became very widely disseminated. Amy receives notice of every such case because of a federal law requiring it, and her psychological expert believes knowing the pictures are out there triggers her trauma anew each time. Her attorney requested restitution from Lundquist, including a recent psychological report on Amy, as well as an older economic report, as evidence. The district court denied Lundquist’s request for a hearing and ultimately ordered $3,381,159 in restitution, but found that Lundquist shared the responsibility with 112 other defendants caught with Amy’s images and held him jointly and severally liable with them.

Lundquist appealed only the restitution order. In an earlier case, U.S. v. Aumais, the Second Circuit had held that Amy and similarly situated people are victims within the meaning of the Violence Against Women Act, but held that there must be proximate cause between the defendant’s behavior and the victim’s losses. The Aumais court found no proximate causation because Amy’s losses were documented before Aumais was arrested—but in this case, Amy updated her psychological evaluation after Lundquist’s arrest. This showing of a general relationship between Lundquist’s offense and Amy’s losses is adequate, the court said, and Lundquist had an adequate opportunity to present his case even without a hearing. But the district court erred in the “arduous task” of calculating the right amount, the Second added, because it divided Amy’s total losses by the number of people caught in possession of her images. Some of that harm was caused by Amy’s uncle, the Second said, and Lundquist could not have caused any harm prior to his offense. Thus, the number to be divided should be smaller, the court said.

Finally, the appeals court reversed on joint and several liability, saying the VAWA doesn’t authorize it unless the other responsible individuals are before the same court. And this approach contravenes the proximate cause requirement, the Second said, because the evidence shows Lundquist didn’t cause all of Amy’s losses. Thus, it vacated in part and remanded for a new calculation.

Part of the problem with restitution requests like this for child pornography crimes is that the law isn’t designed to do this job. Restitution under the VAWA is written in a way that envisions direct harm to the victim from the defendant’s actions. The harm that Amy has suffered is real, but it’s indirect, which is one reason why courts have had such trouble agreeing on how exactly the law should handle it. Similarly, the writers of the restitution statute didn’t envision joint and several liability among people who don’t know each other and are not prosecuted together. That makes it difficult for courts to legally impose it even though, as the Second suggested, it would be an elegant solution. Partly for these reasons, I would prefer a requirement for the victim to show a specific relationship between his or her harm and the actions causing the defendant’s cyber crime charges.

Seltzer Law, P.A., focuses its practice on defending people accused of serious crimes involving technology and the Internet. Lead attorney David Seltzer is a former cyber crime prosecutor with extensive experience on both sides of cyber crime prosecutions. For a free consultation, don’t wait to call us at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Second Circuit Overturns Child Pornography Restitution Payment Order for ‘Amy’ – United States v. Aumais

Ninth Circuit Rejects Call for Joint and Several Liability for Child Porn Possessors – In re Amy & Vicky

Eighth Circuit Dismisses Appeal by Non-Party Child Pornography Victim - In re Vicky