Sixth Circuit breaks out calculators for CP restitution

The Sixth Circuit decided a major published CP restitution case today in United States v. Gamble and Crawford (two unrelated cases that presented the same issue).  Previously, in United States v. Evers, the Sixth held that all restitution awards in CP cases require the government to show that the losses were proximately caused by the defendant’s offense.  Gamble and Crawford required the Court to examine the application of the proximate cause requirement to the situation where a CP victim is claiming over $1,000,000 in restitution from a defendant who viewed the images due to the injury the victim suffered as a result of knowing that her mistreatment and humiliation are being viewed by others.

The district courts in these cases had held each defendant jointly and severally liable for the entire amount of restitution.  The Sixth Circuit, however found this solution to be unworkable, and instead suggested that the harm be apportioned among the perpetrators.  Specifically, the Court suggested that one workable solution would be to determine the pool of a victim’s provable losses that are not traceable to a single defendant and then to divide that pool among by the number of defendants convicted for possessing the victim’s image.  However, a defendant could not be held liable for harm caused prior to the date of his offense.  The Court also noted that defendants could argue for a larger pool of culpable parties by estimating the number of unconvicted possessors of the victim’s image.  Thus, if there are $1,000,000 in restitution, and 1,000 possessors of the images, then each one would have to pay $1,000 in restitution.

The concurring opinion would also have apportioned the restitution amount among the defendants, but would have done so based upon “the defendant’s comparative moral
fault” rather that just the number of offenders.