United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT’S RULE 35(a) MOTION REGARDING RESTITUTION ORDER GRANTING DEFENDANT’S RULE 35(a) MOTION REGARDING RESTITUTION
DARRICK K. WATSON UNITED STATES DISTRICT JUDGE
On November 4, 2015, twelve days after this Court issued its Order Regarding Restitution (Dkt. No. 31), the Ninth Circuit published United States v. Galan, 804 F.3d 1287 (2015). Notwithstanding Paroline v. United States, 134 S.Ct. 1710 (2014), Galan, in some ways, represents a sea change in the determination of restitution for victims of child pornography. Galan holds that distributors and possessors of child pornography cannot be ordered to pay restitution to their victims without the Government first disaggregating the harms caused by these individuals from the harms caused by the so-called “original abuser” -
We hold that in calculating the amount of restitution to be imposed upon a defendant who was convicted of distribution or possession of child pornography, the losses, including ongoing losses, caused by the original abuse of the victim should be disaggregated from the losses caused by the ongoing distribution and possession of images of that original abuse, to the extent possible. The district court erred when it declined to limit the restitution imposed upon Galan in that manner.
Galan, 804 F.3d at 1291. In so holding, Galan also acknowledged the monumental difficulty associated with such disaggregation: “We have no illusion that the task will be easy . . . we can only say that precision is neither expected nor required.” Id.
Here, in response to Defendant’s Rule 35(a) motion, and the guidance offered by Galan, the Government attempts to carry its burden by offering the mental health opinions of Randall L. Green, Ph.D. Dkt. No. 41, Exs. B and D. Dr. Green’s December 2 and 8, 2015 reports update his previous opinions concerning victims Vicky and Sarah, respectively. In each case, Dr. Green has determined the propriety of a 90/10 split - in other words, that the possessors’ of each victim’s images are responsible for 90% of the victim’s losses, while the original abuser is responsible for the 10% balance. Id., Ex. B at 6 (Sarah); Ex. D at 7 (Vicky). The Government proposes allocating each victim’s past and future losses by these percentages as the starting point for its restitution analysis before application of what it refers to as the Paroline and United States v. Gamble factors.
A number of problems, however, plague reliance on Dr. Green’s supplemental reports. First, and perhaps superficially, he arrives at the very same percentage allocation for each of two very different victims. See Dkt. No. 42 at 22. Second, and perhaps critically, he does so without offering any explanation whatsoever. We do not know, for instance, why the offered split was 90/10 v. 75/25 v. 50/50 v. 25/75 v. any other pair of randomly selected numbers. And that leads one to reasonably conclude that the 90/10 allocation he selected was just that - random. Galan instructs that the “ultimate apportionment is not scientifically precise.” What Dr. Green has offered, however, is not merely imprecision. It is arbitrary. Third, the arbitrariness of Dr. Green’s opinions is underscored by his failure to re-examine either Vicky or Sarah, whom he last saw in November 2013 and April 2014, respectively. While it is not impossible that his pre-Galan and, in the case of Vicky, pre-Paroline examinations covered the ground required by those opinions, it seems extremely improbable that he could have had the prescience to do so, a conclusion bolstered by the absence of any kind of true disaggregation analysis in either of his supplemental reports. Fourth, the fact that Dr. Green was specially retained, and has never served as the treating mental health provider for either Vicky or Sarah, means that he does not have the history with either victim on which to potentially base a disaggregation opinion in the absence of an expert examination sensitive to the issue.
The difficulties with disaggregation do not end there. Even if we had a reliable allocation among the original abuser(s), on the one hand, and distributors/possessors, on the other, the logical extension of Paroline and, more particularly, Galan require disaggregation within a given category. In other words, because Paroline pronounces, and Galan parrots, that restitution must “reflect the consequences of the defendant’s own conduct, ” it appears non-sensical to disaggregate only between original abusers and distributors/possessors. Paroline, 134 S.Ct. at 1725; Galan, 804 F.3d at 1290-91 (quoting United States v. Dunn, 777 F.3d 1171, 1181-82 (10th Cir. 2015)). Disaggregation must also occur among distributors and/or among possessors in order to determine the losses caused by Defendant’s conduct apart from the losses caused by all others (including fellow possessors), and the task there is no less difficult nor less imprecise. Indeed, taken together, the Court agrees with Defendant that “Paroline and Galan set out an impossible task for district courts” (Dkt. No. 42 at 42) that even Galan’s considered words do not sufficiently acknowledge and certainly do little to resolve.
Defendant’s Rule 35(a) motion is GRANTED, and restitution is DENIED. The Court will concurrently issue a Second Amended ...