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.

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Part One: From the District Court to the Supreme Court

A Word of Explanation

When I began this column some 20 years ago, it never occurred to me that I would write about a case of mine that made it all the way to the Supreme Court. Because Paroline is one of the most watched criminal cases to be heard by the Court this year and because 12 Courts of Appeal have written on the issue of restitution for a victim of child pornography, I couldn’t ignore it. I would only ask that you forgive me for writing in the first person.

Background

On July 22, 2008, Doyle Randall Paroline retained our firm to represent him on a child pornography case. Back then, I had no more idea than a goose that there was a statute that mandated restitution for the victim of child pornography. On January 22, 2014, Stanley Schneider, Casie Gotro, and I were at the Supreme Court of the United States, sitting at counsel table and waiting for Paroline’s case to be called and Stanley to begin his argument. The issue: What nexus or causal relationship is required between a victim’s losses and a defendant’s conduct in a child pornography case? We are now awaiting the Court’s opinion.

In Part One of this series, I will use Paroline to illustrate the difficulties of representing any defendant on such a restitution issue and pass on the lessons that our team learned—both in the district court and on appeal—in the hope that it will assist our TCDLA brothers and sisters who might have such an issue. In Part Two, I will discuss the Court’s opinion and its implications for all restitution cases—not just those involving a defendant in a child pornography case.

Required Reading

Before beginning the representation of any defendant in a federal child pornography case, you must read New York v. Ferber, 458 U.S. 747 (1982); Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002); and United States v. Norris, 159 F.3d 926 (5th Cir. 1998). Unless you do so, you will not be able to understand the mindset of the judge and the prosecutors in your case.

Paroline’s Criminal Case

Paroline was charged with a violation of 18 U.S.C. § 2252 [Certain activities relating to material involving the sexual exploitation of minors (possession of child pornography)]. A plea agreement was entered into with a non-binding stipulation that suggested that Paroline possessed between 250 and 300 images of child pornography. This resulted in a Total Offense Level of 26 and a Criminal History Category I. That provided for an Advisory Guideline Range of 63 to 78 months’ imprisonment. The plea agreement contained a paragraph requiring restitution for any victim of Paroline’s conduct that no one anticipated was a possibility.

I had retained two experts to assist me in preparing a sentencing memorandum for Paroline: Eric Holden, an internationally prominent polygraph examiner, and Dr. Timothy Proctor, a board certified psychologist. Each of them prepared a report that was submitted as an addendum to the sentencing memorandum.

Mr. Holden’s report reflected that he had conducted a polygraph examination at Dr. Proctor’s request to confirm Paroline’s statement that he had not sought out any underage individuals or had sexual contact with any underage individuals since he had become an adult. He found no indication of deception and concluded that Paroline was being truthful.

Dr. Proctor’s report was quite lengthy but contained the following:

There are several positive aspects of this evaluation that serve as mitigating factors suggestive of decreased risk. In particular, the results of the polygraph examinations, which confirmed that he was truthful when he denied that he has ever had sexual contact with a minor or traveled to any location to meet a minor for sexual encounter.

***

Using qualitative risk categories that include the five levels of low, moderate-low, moderate, moderate-high, and high, it is the opinion of this evaluator that without the aid of any type of intervention (e.g., community supervision, sex offender treatment, restriction of access to the internet), the defendant poses a moderate risk for future use of child pornography and a low to moderate-low risk of engaging in a contact sexual offense. However, if the following treatment/risk management measures are implemented, it is my opinion that the defendant poses a low risk for future use of child pornography as well as for contact sexual offenses, and that with these, he can be managed safely in the community.

[Note: Proctor’s report continued with a lengthy suggestion of treatment/risk management measures.]

After a contested hearing, United States District Judge Leonard E. Davis, Chief Judge of the Eastern District of Texas, granted my Motion for a Sentence Below the Advisory Guideline Range and imposed a sentence of 24 months’ imprisonment, to be followed by ten years of supervised release.

Amy’s Request for Restitution

Shortly before Paroline’s Presentence Investigation Report was to have been completed, James Marsh, the attorney for Amy—a pseudonym for a child who was seen in two of the pornographic images found on Paroline’s computer—filed a request for restitution in the amount of $3,408,404. Included with his request was a brief in support of his restitution claim, a psychological report from Dr. Joyanna Silberg, a victim impact statement from Amy, and an economic loss report from Dr. Stan V. Smith in support of Amy’s monetary claim. [Note: When I first read Marsh’s request for restitution, I could not believe that he was seriously arguing that Paroline should pay his client the $3.4 million that he was requesting for Paroline’s possession of only two images of Amy. And, as we continued our journey through the court system, I continued to be amazed that sane prosecutors—who did not share Marsh’s financial interest—could make this argument on Amy’s behalf.]

Who Is Amy?

Amy was a sympathetic victim. When she was eight and nine years old, Amy was repeatedly raped and sexually exploited by her uncle in order to produce child pornography. Her computer images depict rape, cunnilingus, fellatio, and digital penetration. Amy was also forced to actively participate in her exploitation and abuse by performing requested sex acts over the telephone and computer for other pedophiles; being asked to solicit friends to join her in sex acts; and, being taken into the woods by her uncle to meet other pedophiles. It is estimated that more than 30,000 individuals have viewed Amy’s images in what is known as the Misty series.

A Case of First Impression for Judge Davis

Judge Davis’ staff refers to his Court as the “Two P Court”—patent law and pornography. Paroline was the first of his pornography cases to have a restitution issue. Judge Davis’ first approach was to attempt to craft a protocol for having one judge determine restitution for all of Amy’s losses in all of her cases. When he became convinced that this was not practicable, he severed the restitution case from the criminal case and appointed me as counsel for the restitution case. Before the case was concluded, Judge Davis presided over two contested hearings, reviewed briefs submitted by the lawyers, and hosted the lawyers in his chambers for a lengthy discussion as to the issues before the Court.

The Statute: 18 U.S.C. § 2259

I was convinced that the case law from the other Circuits—both from the District Courts and Courts of Appeal—supported my position that the Government had the burden of proving by a preponderance of the evidence that Paroline’s offense conduct had proximately caused Amy’s losses. Also, for 20 years restitution in federal criminal cases had only been appropriate for losses caused by a defendant’s offense of conviction conduct. See Hughey v. U.S., 495 U.S. 411 (1990).

The problem for Judge Davis was the sloppy drafting by Congress of the restitution statute, 18 U.S.C. § 2259, which reads:

(a) In general.—Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter.

(b) Scope and nature of order.—

(1) Directions.—The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim’s losses as determined by the court pursuant to paragraph (2).

(2) Enforcement.—An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A.

(3) Definition.—For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for—

(A)  medical services relating to physical, psychiatric, or psychological care;
(B)  physical and occupational therapy or rehabilitation;
(C)  necessary transportation, temporary housing, and child care expenses;
(D)  lost income;
(E)  attorneys’ fees, as well as other costs incurred; and
(F)  any other losses suffered by the victim as a proximate result of the offense.

(4) Order mandatory.—

(A)  The issuance of a restitution order under this section is mandatory.
(B)  A court may not decline to issue an order under this section because of—

(i)  the economic circumstances of the defendant; or
(ii)  the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source.

(c)  Definition.—For purposes of this section, the term “victim” means the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or de­ceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian.

[Note: Assume that any federal judge is going to find that Amy was harmed by a defendant’s possession of her images on the defendant’s computer. Harm and loss are not interchangeable. It is possible for a victim to be harmed but not to sustain a loss.]

The Positions of the Parties

During two contested hearings and during a conference in chambers, Judge Davis heard three interpretations of 18 U.S.C. § 2259:

Amy contended that proximate cause was simply not a factor in a restitution determination under § 2259.

The Government agreed that § 2259 did have a causation requirement; however, the Government argued that it had met its burden of proving that Amy’s total losses were proximately caused by Paroline’s conduct.

Paroline disagreed with both Amy and the Government. Paroline contended that § 2259 required that the Government prove by a preponderance of the evidence the amount of Amy’s specific losses proximately caused by Paroline’s possession of her two images. Paroline urged the Court to apply general restitution and causation principles in its analysis of § 2259.

The Importance of Obtaining the Underlying Data Relied Upon by Amy’s Experts

Early on, I concluded that Dr. Silberg’s report and Amy’s victim impact statement simply didn’t pass the smell test. After negotiations with Marsh and a hearing before Judge Davis, we reached an agreement that required Marsh to provide to us all of the underlying data that Silberg and Smith relied upon in writing their reports. We received this data and forwarded it to Dr. Proctor. We were also able to obtain a copy of the contract between Marsh and Dr. Silberg. She was hired to write a victim’s impact statement for Amy that Marsh had used some 250 times before it was presented in Paroline’s case. Dr. Silberg never provided any psychological counseling for Amy and there was nothing in the record to show that Amy had received any psychological counseling after she had retained Marsh as her lawyer. The damage model that Marsh used to support Amy’s claim was prepared before Paroline was even arrested. We were able to review Dr. Silberg’s notes from her interviews with Amy and point out for the Court discrepancies between what Amy had said and what Silberg had written.

Dr. Proctor’s Criticisms of Dr. Silberg’s Report

Dr. Proctor submitted a five and one-half page report that was critical of Dr. Silberg’s methodology and conclusion. These were his five areas of concern:

From the information reviewed and analyzed, concern appears warranted regarding the extent to which in this case Dr. Silberg successfully served as an objective forensic psychological evaluator which appears to have been her express intention.

        Second, although consideration of objective sources of date is the hallmark of a forensic psychological evaluation, it appears based on the materials reviewed, that Dr. Silberg relied very heavily on Amy’s suggestive self-report.

        Third, as was already demonstrated to some extent in the previous section, it appears that Dr. Silberg inadequately considered alternative hypotheses and overly attributed problematic behavior; for example, academic problems, vocation problems, alcohol abuse, to Amy’s sexual abuse history, without fully exploring alternative hypotheses and considering the cause of behavior is often multi-faceted.

        Fourth, psychological testing is typically of great value in forensic evaluations. Unfortunately, however, in this case, Dr. Silberg administered only a very small battery of tests, that is two, that were inadequate due to the absence of well-established validity scales and because the tests were overly specific in nature.

        Finally, it is my opinion that Dr. Silberg’s conclusions regarding the impact of Amy’s abuse history over the course of her lifetime and regarding the amount of treatment she will require in the future is highly speculative and seems inconsistent with the results of her prior period of treatment. And continuing with that, given that Amy has no history that I am aware of of having received such services in the past, I am unaware of what the basis is for the speculation that such services will be needed in the future. Indeed, given her history, including her prior treatment history, it appears unlikely that such services will be necessary in the future.

The Stipulation

During the second hearing, the parties advised the court that the Government, Paroline, and Marsh (as Amy’s representative) had stipulated that any and all notices required to be sent by the Government to “Amy” were received by Marsh; that Marsh did not pass any of these notices on to Amy or inform her that he had received them; that Amy does not know who Doyle Randall Paroline is; and, that none of the damages for which “Amy” is now seeking in restitution flow from anyone telling her specifically about Mr. Paroline or telling her about his conduct which was the basis of the prosecution in this case.

[Note: This stipulation was inconsistent with Amy’s victim impact statement that referred to “this defendant.” Our position before Judge Davis was that Amy could not show any loss caused by Paroline after her lawyer had entered into this stipulation.]

Judge Davis’ Order Denying Restitution

On December 7, 2009, after having more evidence presented to him than had been presented to any of the other District Courts on an Amy claim, Judge Davis entered his order denying restitution that contained the following:

After considering all of the arguments, authority before it, and principles of statutory construction, the Court finds that section 2259 requires that a victim’s losses be proximately caused by the defendant’s conduct to be recoverable in restitution. General restitution and causation principles applied by the Supreme Court and the Fifth Circuit support this interpretation of the statute. Moreover, this interpretation is consistent with the various Circuit Courts that have interpreted section 2259 to require that the victim’s losses be proximately caused by the defendant’s conduct. Thus, an award of restitution under section 2259 is appropriate only for the amount of the victim’s losses proximately caused by the defendant’s conduct.

***

The Court finds that Amy was harmed as a result of Paroline’s conduct and thus, is a “victim” for purposes of section 2259. However, a restitution award under section 2259 requires that the Government prove by a preponderance of the evidence the amount of the victim’s losses proximately caused by the defendant’s conduct. Having considered the parties’ oral arguments and written submissions, the Government has not met its burden of proving what losses, if any, were proximately caused by Paroline’s possession of Amy’s two pornographic images thus, the Request for Restitution is Denied.

U.S. v. Paroline, 672 F.Supp.2d 781 (E.D. Tex. 2009)

What I Learned From Representing Paroline at the District Court

  • A lawyer in a restitution case such as Paroline’s must always obtain the underlying data upon which the victim’s expert has based his or her opinion. [Note: In all my research, I was unable to find another restitution case in which the de­fen­dant’s lawyer obtained the underlying data to rebut Amy’s claim. What makes Paroline different from all the other restitution cases is that Judge Davis was able to weigh the reports of the experts for Amy and Paroline and the briefing and arguments of counsel—and to base his holding on a record that was fully developed.]
  • All child pornography cases are emotional. When a lawyer is resisting paying money to the victim of child pornography, the case becomes emotional on steroids. At our conference in chambers, an AUSA was critical of my argument that a claim of $3,408,404 for possessing two pictures raised an Eighth Amendment issue. She looked at me and said, “You can’t hide behind the Eighth Amendment in a child pornography case!”
  • A lawyer representing the defendant must be prepared to have difficulty in explaining to the court (trial or appellate) the difference between harm and loss. A victim of child pornography may well be harmed, but that does not mean that the Government can prove a loss.

Stanley and I Become a Team

I have found that the answers to most questions in life and in the practice of law can be answered if one only remembers wisdom of “The Godfather,” “Animal House,” or some Dirty Harry movie. In Paroline’s case it was that line from “Magnum Force” that guided me: “A man has to know his limitations.”

When Amy filed a Petition for Writ of Mandamus at the United States Court of Appeals for the Fifth Circuit, I realized that Paroline’s case was one that could eventually reach the Supreme Court. I am not an appellate lawyer, but I knew where to go. For several months, I had been visiting with Stanley Schneider about criminal appellate specialization and knew that he had represented some 400 clients on their criminal appeals. We had also been talking about Paroline’s case and an Amy case that he had in the Western District of Texas. We had discussed the importance of obtaining the underlying data from Amy’s experts and were in agreement on how such a restitution case should be handled by the defense.

I called Stanley and asked if he would consider joining me as co-counsel for Paroline’s appellate issue. When he agreed, Judge Davis appointed Stanley—and we became a team.

Tom Moran practices with Schneider & McKinney and is an exceptional wordsmith. He worked with Stanley and me in the preparation of our response to Amy’s Petition for Writ of Mandamus, which we had only a weekend to complete. He continued working with Stanley on the two briefs that were filed with the Fifth Circuit, on our Petition for Writ of Certiorari, and in preparing a draft of our merits brief for the Supreme Court.

Representing Amy Before the United States Court of Appeals for the Fifth Circuit

Initially we were able to successfully avoid mandamus without going to New Orleans; however, that was our last pleasant experience at the Fifth Circuit. When we appeared before a panel of the Circuit, I argued and we lost. When we appeared before the en banc Court, Stanley argued and we lost.

The following are the citations and results of the Fifth Circuit:

In re Amy, 591 F.3d 792 (5th Cir. 2009) held that:

        A divided panel of the Circuit denied Amy’s petition for mandamus. Paroline wins.

In re Amy Unknown, 636 F.3d 190 (5th Cir. 2011) held that:

        A different panel of the Circuit granted Amy’s petition for rehearing; petition for writ of mandamus granted; case remanded to the District Court. Paroline loses.

In re Unknown, 697 F.3d 306 (5th Cir. 2012) held that:

        A divided en banc court held that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse and remanded the case to the District Court. Paroline loses.

In re Amy Unknown, 701 F.3d 749 (5th Cir. 2012) held that:

        A divided en banc court withdrew its opinion at 697 F.3d 306 and substituted a new opinion granting Amy’s petition for writ of mandamus and ordering the District Court to enter a restitution order reflecting the “full amount of [Amy’s] losses.” Paroline loses.

Casie Joins the Team

After our Petition for Writ of Certiorari had been granted, Casie Gotro came on board as a member of the Team. For those of you who have not yet met Casie, she graduated with a BA in communications from the University of Houston. She worked in the nonprofit sector for three years doing community outreach and taught public speaking to all incoming professional staff. She was a member of the moot court team at the University of Houston Law Center for three years. She was a member of UH’s inaugural VIS international commercial arbitration team that won the regional Gambit Cup Competition and went on to compete in Vienna, Austria, and Paris, France. After graduation, she coached students for the UH moot court team. During her short tenure, her students brought home two best speaker awards and a best brief award. 

Casie offices in Schneider & McKinney’s suite. Paroline was not a new case for Casie. She was aware that Stanley had been working on this case and was interested in the restitution issue. She had come to New Orleans and listened to the en banc arguments. About Casie, Stanley says, “I don’t want to try a case without her.”

The Team Participated in Moot Courts

We learned the importance of participating in moot courts. On June 24, 2013, I had read an article in the New York Times entitled “A Test Track for Tuning Up Supreme Court Arguments” about the moot court program at Georgetown Law that included this: “The moot court program, sponsored by the law school’s Supreme Court Institute, is popular with members of the Supreme Court bar, who scramble to make arrangements as soon as they learn the court has agreed to hear one of their cases. They have to act fast because the institute will help only one lawyer in a case, from whichever side asks first.” In our representation of Paroline, we and our opposing counsel requested—within 15 minutes of each other—the opportunity to come to Georgetown. A coin was flipped and we won.

Our first moot court was in Houston on January 3rd. The judges were Federal Defender Margy Myers, Supervisory Assistant Federal Defender Tim Crooks, Assistant Federal Defender Mike Sokolow, Assistant Federal Defender Carolyn Fuentes, Assistant Federal and Harris County Public Defender (and former Federal Defender) Alex Bunin.

This panel was extremely knowledgeable about the § 2259 restitution issue and asked incisive questions about the statute.

Our second moot court was also in Houston on January 10th. The judges were Charles Eskridge of Susman Godfrey (clerked for Justice White); Jeff Oldham of Bracewell Giuliani (clerked for Chief Justice Rehnquist); Adele Hedges, former Chief Justice of the Fourteenth Court of Appeals and now in private practice; Erin Busby, adjunct faculty at the University of Texas and now in private practice (clerked for Justice Breyer); William Peterson of Beck Redden (clerked for Justice Thomas) and Eric Mayer of Susman Godfrey.

Although these judges were not as familiar with § 2259, four of them had clerked for Supreme Court Justices. They had helpful comments about how they believed our arguments would be received.

Although we were not scheduled for argument until January 22nd, the Team went to D.C. on January 16th in order to participate in one of the wonderful moot courts at Georgetown. Dori K. Bernstein is the Director of the Supreme Court Institute at Georgetown Law. She was a federal appellate lawyer for 18 years before coming to Georgetown, and she is the one who arranges the moot courts for the Institute. I wanted to give those who participated credit for working with us; however, the Institute has a privacy policy that precludes their giving out the identity of their “judges.” For this reason, I cannot thank them (by name) for all they did for us. These judges seemed very familiar with the Justices of the Supreme Court and were able to predict, to some extent, how some of the Justices would react to our arguments.

These moot courts gave Stanley the opportunity to try different approaches to his argument. He gave a different opening at each of the moot courts and, at Georgetown, trotted out a hypothetical just to see how it would go. [Note: Before the Supreme Court, Stanley offered no hypotheticals.]

All of those who participated in our moot courts came wonderfully prepared. It was obvious that each had read all of the briefs filed by the parties, and some had read the amici briefs. Each of the judges took on the mindset of a Justice of the Supreme Court and did an excellent job of asking hard questions—e.g., Former Chief Justice Adele Hedges of the Fourteenth Court of Appeals was of particular assistance as she asked about the importance of 18 U.S.C. § 3664 (e), which begins:

“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. . . .”

Later, Stanley pondered her question and reviewed all of the Amy restitution cases. Only three Courts of Appeal had authored opinions that cited § 3664 (e). Stanley noted that §§ 2259 and 3664 (e) were both passed in 1996 and that § 3664 (e) is, in essence, a codification by Congress of the Supreme Court’s opinion in Hughey.

After each moot court, the judges critiqued Stanley and then answered questions from the Team. Casie and I took copious notes as to the questions asked and to Stanley’s answers in order that we could review them and give Stanley our critiques. Casie and I would also work with Stanley to help him develop concise answers to the questions that he had been asked.

The Team Listened to Oral Arguments at the Supreme Court’s Website

Anyone can go to www.supremecourt.gov; then, click on oral arguments; then, click on oral arguments (again); then, click on arguments audio. This will give a list of cases. You click on the case and it will bring up the argument.

Each member of the Team spent hours listening and re-listening to these arguments from these earlier cases. Stanley spent at least ten hours doing this. This gave us some idea of what we should expect to hear at the Supreme Court.

The Team Attended Arguments Before the Supreme Court

Stanley, Casie, and I made the decision to go to Washington in November in order that we could watch two arguments before the Supreme Court. On January 21st, we went back to the Court and listened to another argument. These are my impressions of what we learned before appearing on Paroline’s behalf:

  • Appearing before the Supreme Court is different. The courtroom itself is like no other. The atmosphere could not be more formal. Each lawyer begins the argument by saying, “Mr. Chief Justice and May It Please the Court.” The lawyers at each counsel table are within a few feet of the Justices. In the vast majority of the cases before the Court, the lawyer has been living with his or her case for years. There is so much that each lawyer wants to tell the Court—and there is so little time to do it.
  • The Justices are going to be well-prepared and appear eager to hear the arguments. Justice Ginsburg, for example, will often ask a detailed question that shows her knowledge of the record.
  • Every Justice except Thomas is likely to ask questions. He will often whisper to Justices Breyer and Scalia, and they may ask a question for him. Questions often come before a lawyer has a fair opportunity to begin the argument. It is not uncommon for a question to be asked as early as 30 seconds into the argument.
  • The Justices want their questions answered. I watched as Justice Kennedy listened to a non-responsive answer and then said: “Counsel. Yes or no.”
  • Lawyers who rely on hypotheticals in support of their position did not do well. The Justices pick apart these hypotheticals and prefer to propound their own hypotheticals to counsel.
  • Ideally, the petitioner should save time for rebuttal argument; however, the Justices don’t really care about a lawyer’s game plan. We watched Justice Breyer ask an interminably long question and then request that the lawyer answer it during his rebuttal argument. Since it was important to Justice Breyer, the lawyer had no choice except to answer the question; however, it did away with what might have been a well-orchestrated rebuttal.
  • When a Justice asks a question, stop talking. Even if the lawyer is on the second syllable of a polysyllabic word, he or she must immediately stop and listen to what the Justice is asking. When a Justice asks a question, a lawyer must con­centrate on what the Justice is saying rather than what the lawyer wants to say next. I remember Justice Kagan commenting to a lawyer that he had not answered a question asked by one of the other Justices.

The Team Engaged in Role Playing

As the arguing lawyer, Stanley had the final say on content; however, Casie and I had the responsibility of trying—with Stanley—to anticipate the Justices’ questions and to help him prepare for the experience. Over and over again, we would go through the drill: Stanley would begin his argument and one or the other of us would interrupt with a question. He would never know how long he was going to be able to argue before being interrupted. Sometimes the questions were “soft balls”; on other occasions, they were aggressive and argumentative. Casie and I repeatedly said “don’t interrupt” and/or “listen to the question.”

Two days before argument—and without telling Stanley—we rented a conference room at our hotel and tried to make it a realistic dress rehearsal. I would call the case and recognize Stanley. He would go to the podium and begin his argument. Casie would become Justice Kagan and I would become Justice Alito. After Stanley had given four arguments, Casie and I had absolute confidence in Stanley that he was ready to nail it.

The Team Had a Handler In D.C.

Jeffrey Green of the prestigious law firm Sidley Austin, LLP, was our handler. Jeff had successfully argued two cases before the Supreme Court and was a founder—nearly 20 years ago—of Sidley’s Supreme Court Pro Bono Program. In this capacity, he had participated in many other cases argued before the Court and had enjoyed other victories. He also continues to work with students at Northwestern Law in their United States Supreme Court Clinic Practice Court. Even with all the other demands on his time, Jeff co-chairs the National Association of Criminal Defense Lawyers Amicus committee.

We wanted Jeff to work with us on our reply brief. He agreed to do so if we would include his name and that of the Northwestern Law United States Supreme Court Clinic on the brief. He did not mince words or adopt our first draft of the reply brief. In fact, he was brutal in his criticisms of what he had read, and that was precisely what we needed. After many conversations with Stanley and Casie and with an open mind to their suggestions, Jeff authored our reply brief and signed off on it. From our first meeting, Jeff was truly our handler.

As Casie has pointed out: “Jeff’s insight into both the formal and informal rules of the Court was invaluable. He explained that the Justices were going to be very much interested in the real world application and ramifications of their decision in Paroline. He also made it clear to us that the Justices don’t care what the various Courts of Appeal have written on our issue.” She also described his work on the reply brief as “like watching a chess master.”

And, to top it off, Jeff was just a great guy. On the day before arguments, D.C. was shut down because of snow and ice, and Sidley Austin was closed that day. Jeff drove in from his home in Maryland to do a final brainstorm session with us—and, the next day he showed up to be supportive as Stanley argued our case.

Anyone who is going to argue before the Supreme Court needs a handler like Jeff.

Amy’s Lawyers—Our Opposing Counsel

Amy was not represented by a team of shoe clerks; rather, she also had a good team. James Marsh is a graduate of the University of Michigan Law School, where he participated in its Child Advocacy Law Clinic. He was the founder of the Children’s Law Center in Washington, D.C., and has been a witness before Congress on children’s issues. His focus is representing victims of child pornography and child sex abuse in criminal restitution and civil cases in federal courts across the country.

Marsh regularly teams with Professor Paul G. Cassel, who holds the Ronald N. Boyce Presidential Endowed Chair in Criminal Law at the University of Utah College of Law. He clerked for Justice Scalia when he was on the U.S. Court of Appeals for the D.C. Circuit and then for Chief Justice Warren Burger. After serving as an Associate Attorney General, an Assistant United States Attorney, and as a law professor, he was sworn in as a United States District Judge for the District of Utah, where he served for five years before returning to the academic community.

The Team’s Day at the Supreme Court

On January 22nd, we arrived early at the Supreme Court. We attended the morning briefing in the Lawyer’s Lounge. The Clerk of the Court explained the order in which the cases were to be heard, where at counsel tables the lawyers should sit, and how much time each lawyer would have for argument. [Note: Because we had counsel for Paroline, the Government, and Amy each arguing, each lawyer had only 20 minutes—hardly enough time.]

We went through security and were escorted into the courtroom, where we took our seats at counsel table. Stanley was mentally prepared and appeared to be at ease. He had with him a file folder that, when opened, contained four statutes, two definitions, and two case citations taped to the folder—and nothing else.

Chief Justice Roberts called our case and recognized Stanley, who went to the podium and began, “Mr. Chief Justice and May It Please the Court.” When Stanley stood up, I moved into his chair with my joint appendix and notes so that I could provide page numbers from the record if a Justice asked for them.

Stanley spoke for 70 seconds before being asked the first question. Each of the Justices—except for Justice Thomas—asked questions. They each seemed concerned with the congressional intent expressed in § 2259 that mandated compensation for victims; yet, they had difficulty reconciling a claim for $3.4 million in restitution for a defendant who had possessed only two images of Amy.

The moot court and role-playing experiences had prepared Stanley. He did not have a single question asked of him that he had not heard earlier during our preparation. At the end of 15 minutes, Stanley sat down and we heard arguments from the Government and from Amy.

During these arguments, it was Casie’s and my responsibility to take note of what was said and to suggest to Stanley what we believed to be appropriate for his rebuttal argument. We did this.

When Stanley returned to the podium, he nailed it—as we anticipated that he would. Amy had suggested that a defendant should have joint and several liability with all other similar defendants and could seek contribution from them. Stanley pointed out that Congress would never have envisioned a meeting of sex offenders to determine who had most harmed a victim. Stanley returned to § 3664 (e) and emphasized that Congress had codified the Court’s decision in Hughey. And he concluded with what we all agreed to be a critical point: that Judge Davis had done precisely what a District Judge is expected to do—he had been a gatekeeper; he had considered the reports of the com­peting experts and made a judgment as to their credibility; and he had made his decision only after having reviewing the extensive briefing that had been submitted by the lawyers, having two contested hearings and a lengthy conference in chambers.

We were so proud of Stanley when he sat down because he had zealously and competently represented Doyle Randall Paroline. In a high compliment to Casie and me, Stanley has said that he could hear our voices in his head when he was answering questions from the Justices and giving his rebuttal argument.

Some Observations

Appearing before the Supreme Court is like playing the World Series, the Superbowl, and being in a Tony winner on Broadway.

For me, this was a once-in-a-lifetime experience, and after being a lawyer for more than 50 years, I wanted it to be a fun experience. My wife Robyn and three of my partners and their wives came to hear the argument. In order to get tickets for the wives, our firm paid $600 for some entrepreneurs (i.e., street people) to stand in line all night. Stanley and his wife Susan had some two dozen family members and friends who also attended. After the argument was over, Stanley and I hosted a lunch for all those who had come to cheer us on and began to unwind.

Over the years, Stanley and I have visited about how lawyers can quickly become close friends when they endure a crisis experience. For the Team, Paroline was a physically and mentally challenging roller coaster ride. I will never forget the joy of being a member of the Paroline Team.

What Happened to Amy’s Uncle?

As you would expect, Amy’s uncle was prosecuted for his abuse of Amy. He was the defendant in a Pennsylvania State Court and in a United States District Court in Pennsylvania. In each case he was assessed a sentence that provided for confinement in a penitentiary. And, not surprisingly, as part of his federal sentence he was required to pay $6,000 in restitution for Amy’s benefit. Did I miss something along the way? $6,000 for the horrible abuse that Amy endured from him and a claim for $3.4 million against Doyle Randall Paroline for possessing two images of her.

No One—Except for Those Who Have Been There—Understands How Much Time It Takes to Prepare for an Appearance Before the Supreme Court

Almost every day since Stanley and I became a team, we talked on the telephone or communicated by email. Stanley worked with Tom Moran on the briefs that were filed at the Fifth Circuit and also on the Petition for Writ of Certiorari. After Certiorari was granted, Tom prepared the first draft of the merits brief.

Romy Kaplan offices in Schneider & McKinney’s suite and has worked on Paroline since before he became a member of the State Bar. He authored a paper on our issue that Stanley presented at an Advance Criminal Law Course. When Stanley and Casie were preparing for argument, Romy was spending at least an hour a day or with Stanley and Casie propounding questions. He had attended en banc arguments in New Orleans and had listened to the judges there ask questions of Stanley. Romy also worked as a research assistant for Stanley during the preparation of the merits brief and oral argument. Romy came to D.C. on January 20th and was there to help in any way that he could.

It was when Stanley and Casie were working on the merits brief that Casie began to show her brilliance and patience. Stanley gives her credit for being the architect and designer of our presentation in the merits brief. During the month before the merits brief was due, Casie and Stanley worked at least five hours a day on the brief. During the last two weeks of that month, they were putting in ten hours a day. When it came time to prepare the oral argument, Stanley began, on December 13th, to put in five to ten hours a day until we left for D.C. on January 16th. Casie was by his side for many of those days.

Stanley has commented that the most important thing Casie said was, “Stan, the Supreme Court is just another court and the judges are just judges.” I believe that Stanley is right when he says that Casie was the glue that held our Team together.

My Thoughts

At some time before this Term of Court ends, we will have an opinion in Paroline, and then I will be able to tell you the rest of the story in Part II of this series.

The Team hopes that our experience in Paroline might help you in the future if you have a restitution case or if you have a case that makes it to the Supreme Court.

TCDLA
TCDLA
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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