Federal Corner: Representing the Defendant on the Issue of Restitution in a Child Pornography Case [Paroline v. United States et al.] – By F. R. Buck Files Jr.


Part Two: The Supreme Court’s Decision in Paroline


In Part One, I discussed Paroline’s journey from the United States District Court for the Eastern District of Texas to the Supreme Court of the United States, and how Stanley Schneider, Casie Gotro, and I became Paroline’s Team. Now, we continue with the Supreme Court’s resolution of his case.

We Win the Causation Issue

On April 23, 2014, Stanley, Casie, and I had reason to celebrate—and we did. A divided Supreme Court held that restitution is proper under 18 USC § 2259 only to the extent the defendant’s offense proximately caused a victim’s losses. Paroline v. United States, et al., 134 S.Ct. 1710 (2014). The Court vacated the judgment of the Court of Appeals and remanded the case to the Court of Appeals. The restitution award of $3.4 million against Paroline was no more. We had won.

Who Is Going to Pay Restitution and in What Amount?

Justice Kennedy delivered the opinion of the Court and was joined by Justices Ginsburg, Breyer, Alito, and Kagan. In addition to the causation issue, the opinion addresses these other issues:

  • When must a district court order restitution under §2259?
  • How are district courts to determine the proper amount of restitution?
  • What factors should the district courts consider in determining the proper amount of restitution?

Unfortunately, district judges and prosecutors and defense lawyers will take little comfort in the guidance—or lack thereof—that Justice Kennedy gives us.

It is that portion of the opinion that deals with these issues that I’m going to focus on in this column.

The Court’s Opinion

The Court’s opinion, reads, in part, as follows:

[What This Case is About]

This case presents the question of how to determine the amount of restitution a possessor of child pornography must pay to the victim whose childhood abuse appears in the pornographic materials possessed. The relevant stat­utory provisions are set forth at 18 U.S.C. § 2259. Enacted as a component of the Violence Against Women Act of 1994, § 2259 requires district courts to award restitution for certain federal criminal offenses, including child-pornography possession.

[Paroline’s Offense Conduct]

Petitioner Doyle Randall Paroline pleaded guilty to such an offense. He admitted to possessing between 150 and 300 images of child pornography, which included two that depicted the sexual exploitation of a young girl, now a young woman, who goes by the pseudonym “Amy” for this litigation.


[Possession of Child Pornography Is Not a Victimless Crime]

Three decades ago, this Court observed that “the exploitive use of children in the production of pornography has become a serious national problem.” New York v. Ferber, 458 U.S. 747, 749, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).


[Amy’s Story]

One person whose story illustrates the devastating harm caused by child pornography is the respondent victim in this case. When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography.


The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim’s trauma and made it difficult for her to recover from her abuse. As she explained in a victim impact statement submitted to the District Court in this case:

“Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle. . . . My life and my feelings are worse now because the crime has never really stopped and will never really stop. . . . It’s like I am being abused over and over and over again.” Id., at 60–61.


[At the District Court]

Petitioner Paroline is one of the individuals who possessed this victim’s images. In 2009, he pleaded guilty in federal court to one count of possession of material involving the sexual exploitation of children in violation of 18 U.S.C. § 2252. 672 F.Supp.2d 781, 783 (E.D.Tex.2009). Paroline admitted to knowing possession of between 150 and 300 images of child pornography, two of which depicted the respondent victim. Ibid. The victim sought restitution under § 2259, asking for close to $3.4 million, consisting of nearly $3 million in lost income and about $500,000 in future treatment and counseling costs. App. 52, 104. She also sought attorney’s fees and costs. 672 F.Supp.2d, at 783. The parties submitted competing expert reports. They stipulated that the victim did not know who Paroline was and that none of her claimed losses flowed from any specific knowledge about him or his offense conduct. Id., at 792, and n. 11; App. 230 [emphasis added].

        After briefing and hearings, the District Court declined to award restitution. 672 F.Supp.2d, at 793. The District Court observed that “everyone involved with child pornography—from the abusers and producers to the end-users and possessors—contribute[s] to [the victim’s] ongoing harm.” Id., at 792. But it concluded that the Government had the burden of proving the amount of the victim’s losses “directly produced by Paroline that would not have occurred without his possession of her images.” Id., at 791. The District Court found that, under this standard, the Government had failed to meet its burden of proving what losses, if any, were proximately caused by Paroline’s offense. It thus held that “an award of restitution is not appropriate in this case.” Id., at 793.

[At the Fifth Circuit]

The victim sought a writ of mandamus, asking the United States Court of Appeals for the Fifth Circuit to direct the District Court to order Paroline to pay restitution in the amount requested. In re Amy, 591 F.3d 792, 793 (2009). The Court of Appeals denied relief. Id., at 795. The victim sought rehearing. Her rehearing request was granted, as was her petition for a writ of mandamus. In re Amy Unknown, 636 F.3d 190, 201 (2011).

        The Fifth Circuit reheard the case en banc along with another case, in which the defendant, Michael Wright, had raised similar issues in appealing an order of restitution under § 2259, see United States v. Wright, 639 F.3d 679, 681 (2011) (per curiam ). As relevant, the Court of Appeals set out to determine the level of proof required to award restitution to victims in cases like this. It held that § 2259 did not limit restitution to losses proximately caused by the defendant, and each defendant who possessed the victim’s images should be made liable for the victim’s entire losses from the trade in her images, even though other offenders played a role in causing those losses. In re Amy Unknown, 701 F.3d 749, 772–774 (2012) (en banc).

[At the Supreme Court]

Paroline sought review here. Certiorari was granted to resolve a conflict in the Courts of Appeals over the proper causation inquiry for purposes of determining the en­ti­tle­ment to and amount of restitution under § 2259. 570 U.S. __, 133 S.Ct. 2886, 186 L.Ed.2d 932 (2013). For the reasons set forth, the decision of the Court of Appeals is vacated.

[§ 2259(a) Provides for Mandatory Restitution]

Title 18 U.S.C. § 2259(a) provides that a district court “shall order restitution for any offense” under Chapter 110 of Title 18, which covers a number of offenses involving the sexual exploitation of children and child pornography in particular. Paroline was convicted of knowingly possessing child pornography under § 2252, a Chapter 110 offense.


[The District Court’s Findings]

The District Court found that the Government failed to prove specific losses caused by Paroline in a but-for sense and recognized that it would be “incredibly difficult” to do so in a case like this. 672 F.Supp.2d, at 791–793. That finding has a solid foundation in the record, and it is all but unchallenged in this Court. See Brief for Respondent 1723 Amy 63; Brief for United States 19, 25. But see Supp. Brief for United States 8–10. From the victim’s perspective, Paroline was just one of thousands of anonymous possessors. To be sure, the victim’s precise degree of trauma likely bears a relation to the total number of offenders; it would probably be less if only 10 rather than thousands had seen her images. But it is not possible to prove that her losses would be less (and by how much) but for one possessor’s individual role in the large, loosely connected network through which her images circulate. See Sentencing Comm’n Report, at ii, xx [emphasis added].

[Paroline’s Conduct in Context]

Even without Paroline’s offense, thousands would have viewed and would in the future view the victim’s images, so it cannot be shown that her trauma and attendant losses would have been any different but for Paroline’s offense. That is especially so given the parties’ stipulation that the victim had no knowledge of Paroline. See supra, at 1736–1737 [emphasis added].


Paroline’s contribution to the causal process underlying the victim’s losses was very minor, both compared to the combined acts of all other relevant offenders, and in comparison to the contributions of other individual offenders, particularly distributors (who may have caused hundreds or thousands of further viewings) and the initial producer of the child pornography [emphasis added].


[The Remedial and Penological Purposes of § 2259]

The cause of the victim’s general losses is the trade in her images. And Paroline is a part of that cause, for he is one of those who viewed her images. While it is not possible to identify a discrete, readily definable incremental loss he caused, it is indisputable that he was a part of the overall phenomenon that caused her general losses. Just as it undermines the purposes of tort law to turn away plaintiffs harmed by several wrongdoers, it would undermine the remedial and penological purposes of § 2259 to turn away victims in cases like this.

        With respect to the statute’s remedial purpose, there can be no question that it would produce anomalous re­sults to say that no restitution is appropriate in these cir­cum­stances. It is common ground that the victim suffers continuing and grievous harm as a result of her knowledge that a large, indeterminate number of individuals have viewed and will in the future view images of the sexual abuse she endured. Brief for Petitioner 50; Brief for Respondent Wright 4; Brief for United States 23; Brief for Respondent Amy 60. Harms of this sort are a major reason why child pornography is outlawed. See Ferber, 458 U.S., at 759, 102 S.Ct. 3348. The unlawful conduct of everyone who reproduces, distributes, or possesses the images of the victim’s abuse—including Paroline—plays a part in sustaining and aggravating this tragedy. And there can be no doubt Congress wanted victims to receive restitution for harms like this. The law makes restitution “mandatory,” § 2259(b)(4), for child-pornography offenses under Chapter 110, language that indicates Congress’ clear intent that victims of child pornography be compensated by the perpetrators who contributed to their anguish. It would undermine this intent to apply the statute in a way that would render it a dead letter in child-pornography prosecutions of this type.

        Denying restitution in cases like this would also be at odds with the penological purposes of § 2259’s mandatory restitution scheme. In a sense, every viewing of child pornography is a repetition of the victim’s abuse. One reason to make restitution mandatory for crimes like this is to impress upon offenders that their conduct produces concrete and devastating harms for real, identifiable victims. See Kelly, supra, at 49, n. 10, 107 S.Ct. 353 (“Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused”). It would be inconsistent with this purpose to apply the statute in a way that leaves offenders with the mistaken impression that child-pornography possession (at least where the images are in wide circulation) is a victimless crime.


[When Must District Courts Order Restitution Under § 2259]

[W]here it can be shown both that a defendant possessed a victim’s images and that a victim has outstanding losses caused by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying §2259 should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses. The amount would not be severe in a case like this, given the nature of the causal connection between the conduct of a possessor like Paroline and the entirety of the victim’s general losses from the trade in her images, which are the product of the acts of thousands of offenders. It would not, however, be a token or nominal amount. The required restitution would be a reasonable and circumscribed award imposed in recognition of the indisputable role of the offender in the causal process underlying the victim’s losses and suited to the relative size of that causal role. This would serve the twin goals of helping the victim achieve eventual restitution for all her child-pornography losses and impressing upon offenders the fact that child-pornography crimes, even simple possession, affect real victims [emphasis added].

[How Are District Courts to Determine the Proper Amount of Restitution?]

There remains the question of how district courts should go about determining the proper amount of restitution. At a general level of abstraction, a court must assess as best it can from available evidence the significance of the individual defendant’s conduct in light of the broader causal process that produced the victim’s losses. This cannot be a precise mathematical inquiry and involves the use of discretion and sound judgment. But that is neither unusual nor novel, either in the wider context of criminal sentencing or in the more specific domain of restitution. It is well recognized that district courts by necessity “exercise . . . discretion in fashioning a restitution order.” § 3664(a). Indeed, a district court is expressly authorized to conduct a similar inquiry where multiple defendants who have “contributed to the loss of a victim” appear before it. § 3664(h). In that case it may “apportion liability among the defendants to reflect the level of contribution to the victim’s loss . . . of each defendant.” Ibid. Assessing an individual defendant’s role in the causal process behind a child-pornography victim’s losses does not involve a substantially different or greater exercise of discretion.

[Factors for the District Courts to Consider]

There are a variety of factors district courts might consider in determining a proper amount of restitution, and it is neither necessary nor appropriate to prescribe a precise algorithm for determining the proper restitution amount at this point in the law’s development. Doing so would unduly constrain the decisionmakers closest to the facts of any given case. But district courts might, as a starting point, determine the amount of the victim’s losses caused by the continuing traffic in the victim’s images (excluding, of course, any remote losses like the hypothetical car accident described above, see supra, at 1721), then set an award of restitution in consideration of factors that bear on the relative causal significance of the defendant’s conduct in producing those losses. These could include the number of past criminal defendants found to have contributed to the victim’s general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim’s general losses; any available and reasonably reliable estimate of the broader number of offenders involved (most of whom will, of course, never be caught or convicted); whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant’s relative causal role. See Brief for United States 49.

        These factors need not be converted into a rigid for­mula, especially if doing so would result in trivial restitution orders. They should rather serve as rough guideposts for determining an amount that fits the offense. The resulting amount fixed by the court would be deemed the amount of the victim’s general losses that were the “proximate result of the offense” for purposes of § 2259, and thus the “full amount” of such losses that should be awarded. The court could then set an appropriate payment schedule in consideration of the defendant’s financial means. See § 3664(f)(2).


[How Doyle Randall Paroline Is to Be Viewed]

Treating [Paroline] as a cause of a smaller amount of the victim’s general losses, taking account of his role in the overall causal process behind those losses, effects the statute’s purposes; avoids the nonsensical result of turning away victims emptyhanded; and does so without sacrificing the need for proportionality in sentencing.


[The Court’s Acknowledged Difficulties with Its Approach]

This approach is not without its difficulties. Restitution orders should represent “an application of law,” not “a decisionmaker’s caprice,” Philip Morris USA v. Williams, 549 U.S. 346, 352, 127 S.Ct. 1057, 166 L.Ed.2d 940 (2007) (internal quotation marks omitted), and the approach articulated above involves discretion and estimation. But courts can only do their best to apply the statute as written in a workable manner, faithful to the competing principles at stake: that victims should be compensated and that defendants should be held to account for the impact of their conduct on those victims, but also that defendants should be made liable for the consequences and gravity of their own conduct, not the conduct of others. District courts routinely exercise wide discretion both in sentencing as a general matter and more specifically in fashioning restitution orders. There is no reason to believe they cannot apply the causal standard defined above in a reasonable manner without further detailed guidance at this stage in the law’s elaboration. Based on its experience in prior cases of this kind, the Government—which, as noted above, see supra, at 1718–1719, bears the burden of proving the amount of the victim’s losses, §3664(e)—could also inform district courts of restitution sought and ordered in other cases [emphasis added].


The Fifth Circuit’s interpretation of the requirements of § 2259 was incorrect. The District Court likewise erred in requiring a strict showing of but-for causation. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.

        It is so ordered.

Chief Justice Roberts’ Dissent

Chief Justice Roberts, joined by Justices Scalia and Thomas, dissented. His dissent virtually adopts the argument that Stanley presented to the Court concerning the importance of 18 U.S.C. § 3664(e), which reads:

Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the attorney for the Government. The burden of demonstrating the financial resources of the defendant and the financial needs of the defendant’s dependents, shall be on the defendant. The burden of demonstrating such other matters as the court deems appropriate shall be upon the party designated by the court as justice requires [emphasis added].

It was Adele Hedges, former Chief Justice of the Fourteenth Court of Appeals, who suggested this argument during a moot court session at Susman Godfrey’s office in Houston in January. In 1990, the Supreme Court held that an award of restitution under the Victim and Witness Protection Act is authorized only for loss caused by the specific conduct which forms the basis for the offense of conviction. Hughey v. United States, 110 S.Ct. 1979 (1990). The following year, Congress enacted 18 U.S.C. § 3664(e), which is simply a codification of Hughey. Stanley did an eleventh hour amendment to his argument and the Chief Justice and Justices Thomas and Scalia found it persuasive.

In his dissent, Chief Justice Roberts is critical of the Court’s suggested methodology for determining restitution; e.g.,

According to the Government’s lodging in this case, District Courts awarding less than Amy’s full losses have imposed restitution orders varying from $50 to $530,000. Restitution Awards for Amy Through December 11, 2013, Lodging of United States. How is a court supposed to use those figures as any sort of guidance? Pick the median figure? The mean? Something else [emphasis added]?


[T]o the extent it is possible to project the total number of persons who have viewed Amy’s images, that number is tragically large, which means that restitution awards tied to it will lead to a pitiful recovery in every case. See Brief for Respondent Amy 65 (estimating Paroline’s “market share” of Amy’s harm at 1/71,000, or $47). The majority says that courts should not impose “trivial restitution orders,” ante, at 1728, but it is hard to see how a court fairly assessing this defendant’s relative contribution could do anything else [emphasis added].

That dissent ends with this paragraph:

The Court’s decision today means that Amy will not go home with nothing. But it would be a mistake for that salutary outcome to lead readers to conclude that Amy has prevailed or that Congress has done justice for victims of child pornography. The statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it.

Judge Sotomayor’s Dissent

Justice Sotomayor also dissented. She would have affirmed the Fifth Circuit’s holding that the district court “must enter a restitution order reflecting the ‘full amount of [Amy’s] losses.’”

My Thoughts

  • During an in-chambers conference, I argued that granting Amy the relief she sought would violate the Excessive Fines Clause of the Eighth Amendment. To my argument, an As­sistant United States Attorney replied, “You can’t hide behind the Eighth Amendment in a child pornography case.”
     Justice Kennedy was not so flippant. He wrote, “The reality is that the [Amy’s] suggested approach would amount to holding each possessor of her images liable for the conduct of thousands of other independently acting possessors and distributors, with no legal or practical avenue for seeking contribution. That approach is so severe it might raise questions under the Excessive Fines Clause of the Eighth Amendment” [emphasis added].
     Before Paroline, if you had run the Westlaw query restitution /p “Eighth Amendment,” you would have gotten no cases. Run it now, and you’ll pick up Paroline.
  • After Paroline, every defendant in a child pornography case—when there is an identifiable victim—is going to be required to pay restitution. The Court has interpreted § 2259 to be a strict liability statute. My concern is that there is going to be no consistency in these restitution awards.
  • Every defendant in every restitution case should be concerned about holding the Government to its burden under 18 U.S.C. § 3664(e).
  • Our case is still some months away from being over. Paroline will be ordered to pay some amount of restitution, but it won’t be $3.4 million.
  • Amy’s lawyers wanted this case to go to the Supreme Court, but I never understood why they would choose a defendant who possessed only two images of Amy as their target.
     Between the first and second hearings that were held in the district court, I attempted to enter into settlement ne­go­tiations with James Marsh. He told me that he was not in­terested in settling the case. He wanted an opinion. After the Fifth Circuit’s en banc opinion, which gave Amy all the relief that she had requested, Paul Cassell actually gave some helpful suggestions to Stanley on what our petition for writ of certiorari might contain. He also wanted an opinion.
     During Cassell’s argument before the Supreme Court, it was obvious to everyone in attendance that most of the Justices were not buying what he had to sell—and his demeanor began to change. In the Lawyer’s Lounge after arguments, he was, at best, aloof. That gave us great comfort.
     I believe that Amy’s lawyers underestimated the strength of our position and Stanley’s ability to articulate that position. The lesson is there. Be careful what you ask for.
  • The surprise: When Justice Scalia was at the Fifth Circuit con­ference in May, he barely mentioned Paroline. Could he actually have been concerned about embarrassing the former Chief Judge of the Circuit for her opinion? We’ll never know the answer to that question.
  • Bye, bye Supreme Court. It was a great adventure for the Team!
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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