two and i'm going to talk about the restitution issue this morning as an initial matter i think that it is pretty clear under the relevant statutory law in the case law that there has to be proximate cause between the offense conduct the conduct of the defendant and the restitution that's been claimed by the victim it's clear there's got to be proximate direct causation and the problem in this case is that the district court there was no evidence the district court found found that but there was no evidence of direct causation between the offense of conviction which is the receipt of t sexually explicit images and the psychological damage that was caused to this victim's mother for which she was claiming reimbursement in the amount of about two twenty thousand dollars  the only evidence before the court at the time was that well she had a prior history of trauma she was undergoing certain  psychological counseling she was taking some and i depressants but this was all from a history of prior trauma and that's where there's a fair amount of evidence that the conduct of this defendant increased the trauma pardon me that there's a fair amount of evidence that the conduct by this defendant increased the trauma well i think that the district court says that his or said that his conduct exacerbated her preexisting condition and th s that's that's another way of saying what i just tried to say yeah but the only evidence to support that was a letter that was attached to the government sentencing memorandum from this woman's counselor and that basically myself sure that's kind of the area that i was going to go to next i mean it's clear undergo a lawn under paralyzing under those cases that there's got to be some of portion but there's got to be some this aggregation between and how do you deal with the supreme court carol in peril on case or paralyzed case and our goal on case where and both of those cases it's a portion that is among wrongdoers here it's a portion of it as between a wrongdoer and other at least for a paragraph seventy four the pre sentence report and essentially there is this similar conduct between this these other men that was in a city not involved in the same sort of on the same crime the others are  it's all writing of the same sort of distribution of photos here it's true it's separate separate wrongdoers of a one searcher so i think at a minimum there should have been more evidence it had been presented i think that the court should have  engaged him some sort of attempt to apportion this twenty thousand dollars of restitution that had been claimed by this woman what was the argument made to the court in terms of  for the restitution amounts and the other damage but that's the only argument made especially yes because the government had the burden of proving those restitution amounts it was the government's burden of proof under thirty six sixty four i think to prove that and there was only one sentence i think that was made by the district court and it was simply that his product exacerbated her  apportionment that i mean the only argument we made was there's got to be some kind of abortion and it hasn't been presented and it's the government government every burden of proof is in the context of restitution is there a collateral source rule the reason i'm asking that is that the amount sought here is not for the full amount of the cost of the treatment and if there's a collateral source rule you may get apportionment but as to a much larger amount because apparently the twenty thousand is only based on the deductibles it seems that under the case fall at it seems to me if i had my recollection of the collateral source rule is correct under follette that was cited in the case law if there is some means by which the restitution can be paid by other sources then that's not a charge that goes the full amount the idea being that the defendant the plaintiff paid for the insurance and his title to proceed but the defenders not entitled to a deduction based upon the proceeds from the insurance policy now health care policy  mean i'm going back to the flood case in in full let there was a woman who was a native american and she was receiving treatment from the indian health service in the court this court found that it wasn't a position that the circuit had it wrong that you could look at your power or just that in this case there's really not enough there given his prior indications that he had such any kind of realistic future well i think certainly that the court can look at the eighth circuit cases but again the fight there was one as a one sentence finding and that was essentially that he's young and he has a history of employment we go back and look at the pre sentence report we can see that his history of employment i think is last employment was in two thousand and fourteen the employment prior to that was in two thousand and ten and saw it good morning may it please the court my name cindy peterson i'm an assistant u s attorney for the district of montana and i represent the united states today i will start by where we just ended which is the five thousand dollars special we pointed out in our briefs that this court has not issued a published decision giving guidance in terms of how to determine indigence but the kelley decision in the eighth circuit provides very good guidance and we would urge the court to follow that guidance as the district court did in this particular case the district court here made the p s r part of the record and then relied on it throughout the sentencing as it was handing down the judgment and what's important here is to look at of course the court's findings the facts as they relate to mr sorry  because when you do i don't believe that there's any showing that they were illogical or implausible which is what's required for clear air specifically the p s r identifies that mr starr is thirty three years old he had attended some college it went back through his employment history it found that he was a good worker at one point in time he was earning one thousand dollars an hour he was in good physical health there was no issues  all with his ability to work while he was not employed at times it was largely because he quit or he wasn't following the rules when you look at the factors that are put into that it wasn't because he couldn't work  r was not a good employee from that standpoint he just didn't want to follow the rules what about this confusion about whether the p s r actually said he was not indigent and that being a premise for th imposing i don't believe that the p s r said that he was not it is your honor it didn't get a confusion is whether the district court somehow thought it did the way he read the wording yeah and so that would be specific finding because it comes down to whether or not the court wanted to make the specific finding and more importantly whether or not the facts that the court found were clearly erroneous and largely what the court was saying here was that mr sari was able bodied and he had the ability to work and he had the ability to pay this in the future and certainly there are other factors in the p s r that supported that even when he's not working  that he was able to purchase many things and that's throughout the entire p s r in two thousand and fifteen when he committed these crimes he wasn't employed in terms of looking at his employment status yet he was buying phones he was buying cigarettes he was buying alcohol and marijuana for the victims he was meeting at hotels he was giving the victim's money he was paying for their pictures at one time he paid for sex he had a laptop he had a large screen plasma t v he had a cell phone he had a digital camera all of these things showing that mr sorry clearly has money and clearly has the ability to make money in the future and so based on everything that was in the p s r we don't believe that the court clearly erred as to the determining of indigence if there is no other questions on that i'll move to restitution again the issue on restitution is whether or not the district court clearly erred when it made galen case and we don't believe that has any application to mr sorry because galen stood for the clear proposition that course are required to look at a simple possessor versus the original abuser and here mr sorry was the original abuser so there is no issue with regards to dismiss a geisha and as it relates to mr sorry's conduct and the original abuse conduct but that does lead us to another issue which was brought up which is the this apportionment concept and whether or not the court is considered or required to apportion the reason that we believe the answer is no is twofold  first of all the court is only required to find that mr sorry it was a substantial factor in the loss of and once he finds that mr starr is a substantial factor then in fact  they have they have determined that he is responsible for approximate causation with regards to that there was a reference to the eggshell victim and that is significant because it doesn't to the extent that this victim may have been impacted more than another victim that did not have preexisting conditions that doesn't matter what matters is the fact that mr sorry was found to be a substantial cause or he was the around happy to not receiving any form of treatment gets hit and because of being hit is now damaged that's not the case here as this woman walks around she's already suffered harm she's already receiving treatment she's now harmed further and i'd take the evidence that comes in i'm perfectly willing to take him because of the additional harm she's going to require more treatment then she otherwise would have rather than moving from no treatment to treatment so the question is does she get the restitution for the additional treatment business attended by the wrongdoing it specifically says if he's a substantial factor in this defendant is on the hook so to speak for her entire losses now the other the large portion of why we're arguing it is because if you consider going to be a tough one i think it would be a tough one and frankly i think that supported by the record iar sixty six which is the counselors record the counselors letter that was referenced specifically that trauma has this compound ing a fact and it's referenced the difficulties of untangling i think that it would be near impossible for the court to try to figure out you know but that's exactly the task that justice kennedy's opinion gives us where we have several short freezers or several wrong doors with respect to child porn and we've got to sort it out there so you're just saying it's an impossible task here and therefore we can't do it but it's the same impossible task i understand what you're saying your honor and i see the difficulties and i recognize the difficulties even with doing it with the original abuse or the requirements of galen imperiling at the same time to counsel can answer a question for me tell me i understand your argument it that he that the opponent here can be viewed as a substantial factor as to all the damages they might have been a substantial factor as to the exacerbation part but how's he's a substantial factor in the previous thing to him so i think that that comes down to a factual finding by the court and in this case the court largely relied on a the letter that city are sixty six but also there is a a victim statement that is set forth that p s r paragraph ninety five where that also shows that the mother suffered because of the defendant's conduct so i think that the court's factual findings in this case were supported by those two things the other thing is that the case law clearly says that that sorry does not have to be the sole cause it just coupled with the evidence that was in the p s r then we believe that we met auburn and that there i ask you on that point how do you link up your standard which is we just have to show that there's a causal chain with the supreme court allocation language the apportionment argument that's where i think that it becomes difficult in in what i was trying to reference and not eloquently  about i just don't understand how the court could possibly separate these two things out without putting a victim's mental health and without putting the victim through a trial in terms of trying to determine that that's why i don't think that you get to that to that step when it comes down to cases like this one it's before the court where sorry was the original abuser there was a substantial he was a substantial factor in losses that were incurred and therefore that the court's findings were just more an illogical or implausible implausible in terms of determining that he was owed i also think that it's important to know that where the the court awarded with the court awarded the twenty thousand eight hundred dollars which was it was inclusive as of historic it was inclusive of some prescriptions and then it also had about fifteen thousand dollars in future counseling and the court specifically identified that that was substantially less than what was awarded in laney which was sixty thousand dollars over six years and it also noted that this is only the co pay that was requested so when you look at the express language of twenty two fifty not twenty two fifty nine the court is not to consider whether or not there is any other insurance or any other third party payer with regards to payment of of this potential social question that's correct your honor says so in other words even if we had apportionment it's a portion of a much larger amount and you did you make that argument to the court i i don't believe that we i think that i know that i would have argued the language of twenty to fifty not twenty to fifty nine in that you don't consider third party payors we definitely did not not in that you don't and you know that's not part of the appeal in front of us  might or might not happen as a goes back yeah it it was there was discuss the insurance and the fact that she was only seeking copays and i'm over my time to the first issue it was clear air will the second issue the j v t there are issues it was clear error because the district judge speculated that in the future he would be would not be indigent when he's not incarcerated i think that's why it was clear error because he speculated as to what would happen in the future but it wouldn't you have to make some judgement on that right he will have been incarcerated for i think is really status twenty twenty five he will be at that point forty one years old which is relatively young but we don't know what his health is we don't know what his ability to remain employed is in this i think is just too speculative but under your view of the law the judge is titled to look to the future earning possibility for determining and it unseen in this context well based upon the record but i'm asking you know and i might not ask you the record question i'm asking you a legal question under your view of the law the judges entitle to look to future earning possibility in determining agency rather than confined to the coming over from montana