ways st it included losses caused by william johnson who committed his fence it's against our w long before the offense in this case had even occurred nd to the extent that mr anthony joined the conspiracy at all it was limited to a conspiracy to have sex with these victims on the one night not to further mari's johnson's business as a whole but the restitution order held him accountable for all the harm that was died during these girls times  three week period so both of these errors really go back to this fundamental rule that restitution has to be limited to losses that were caused by the defendant's offense so to start and just take them in order the way they were in the  the st issue has to do with the william johnson prostitution ring which occurred before the maurice johnson prostitution ring the there's no quite there was no question below and there's no question on appeal that the district courts restitution order includes l that were inflicted by william because the court included a lifetime's worth of costs of therapy if william caused damage and we know that he did he obviously did some of that is attributable to him and it looks as if he has been held accountable for th he's been convicted he was ordered to pay our w nine hundred thousand dollars restitution the prosecutor said we don't i don't have that order it's under seal but we know that it was for at least in part for emotional trauma but in any event whether it included psychiatric services or not some of the harm that's going to be treated over her lifetime therapy which she obviously deserves was caused by an offense that occurred months before even the conspiracy that my client w mari's johnson but for the mars johnson so we're talking about wine i'm not talking about the one night thing right now but for the mars johnson re these same damages would have happened and they in fact happened before and she's already been ordered she's already been awarded restitution to cover those harms too so this really well one thing i've been struggling a little bit with is that if in a in a case where restitution is based on a financial crime right you can come up with some numbers who who caused this to whom and and and get to get to a figure here though  it seems like the largest component of the rest to shannon order was to pay for counseling life lifelong counseling and even if we accept your your but for argument how how's the court supposed to sort out who's responsible for a while isn't even possible to do that especially in light of your answer to judge philips  this question right while i think the short answer to cheer question is we don't know because it hasn't been tried there was no effort in the district court to separate out these losses at all all the government had was an affidavit from a physician's assistant baird i mean it one point at one point district court said that that that the defendant had not shown that right offense if the defense is seeking an offset from that then the burden is on the defense we're not seeking an offset and offset is for when for example you you give back part of the stolen property you st fifty thousand dollars from someone and you give them back twenty five thousand then you only have to pay them twenty five thousand restitution that's what an offset is that has nothing to do with this case our only argument is that you had that and the government or the bark on this is what losses were caused by mr anthony's offense we're not asking for a discount we're not asking for adoption we're asking for an accurate determination of the losses this offense cause so you are saying that she would have needed this counseling to the exact same degree an extent from what william johnson did to her and therefore what maurice johnson did to them i guess not just don't know the answer to that question yet and judge if i were to hazard a guess and this just hasn't been developed in the district court i would say there probably is additional harm i mean the continuation of this kind of abuse to a person is bound to cause additional harm how can it be that someone just becomes completely damaged the beginning and then nothing happens to them the rest of the time that's kind of an assumption has been underlying this case because a one sentence in that affidavit but it's not something that was ever tested in the district court it would not surprise me in the least if some experts can come in and make some kind of estimate which is really all it needs to be for restitution right it doesn't have to be precise it doesn't have the exact rescission they just need to do the best they can of what additional harm was caused by these additional horrors that were inflicted on this on these two girls or at least on our she's the only one as you said who is related to the to the st so it is absolutely not our position and i don't even think i could make that position on the record that all the harm is done to our guys zero that is not what we acknowledge he calls time he should be held accountable for that harm but we don't know at this point what that harm because the district court at the government's urging just decided to throw everything that happened to everybody on everybody is the easy way out but it's not fair and is not legal in the evidence that was submitted for r w about know because we don't have the williams at least i don't have access to the william johnson restitution stuff we were able to piece a little bit together from south that was set and i record from the judgment of william johnson bunch of that stuff is under seal the only thing really concrete that we have from the william johnson case in our record is a victim impact statement that was from r w that victim impact statement is actually a lot more extensive and describes harms in much greater detail and much it's a much more much more they're both gut wrenching to read i would say that william johnson has more gut wrenching to read maybe by the time i don't know i don't know why that's the case but that's really all we have we know the amount of restitution for william johnson that's more than the one in this case but he also he broke bones he induced miscarriages she got three s t d s there were harms that appear to have been done in that case and again all i have is a skeletal outline of that case because most of it's under seal that weren't didn't happen in this case so i'm not trying to this is a hard i mean these poor simmons are so difficult but i think that parallel line is probably not very dispositive because there there was just what was the harm of one extra person out of potentially thousands that have looked at some of these pornographic materials there was no further direct interaction with the victims but in our case we have direct interactions on two different occasions so something is going to be easier in our case to apportion what injuries occurred do you agree with i do agree with that i do not think this is  line at all well all but it isn't irrelevant because it does tell us that we've got to seriously try to make some allocation to the specific crime yes exactly and that's exactly what i was going to say is  think para line is relevant kind of at that at the twenty thousand dollars foot level where you can't just just because it's hard you can't just pile it on everybody so you need some witness the comes in and says what maurice johnson and his group did to r w enhanced her injury enhanced the cost to her of rehabilitation and counseling to this degree and we don't have that evidence and we don't have that evidence and it just wasn't even try it's not like they came in and put somebody but how do we cope with the fact that anthony was an interested in very very well preserved that response that my client's lawyer adopted went on for pages about how you got to separate out what happened with after separate out we didn't cause any of that that happened before on no interest in having further evidence in the hearing there was no hearing at all i know he didn't want one he didn't request a hearing but i think the defense did make the argument that you can't hold us accountable for what william johnson did and that's what you're doing if you will ward a lifetime's worth of therapy it costs at that point it's the government's burden to say well yes we can but i'm sorry can i ask you and so i understand for sure what you're sam for we leave are you saying that his restitution is confined to the events of october twenty four yes and that gets into my nd issue which and that's what i want to talk about and he's going to assume it's a conspiracy that's great ye right on the conspiracy on your side and other cases yes evans primarily right and i understand that in a drug conspiracy relevant conduct you strip off and you just go to that narrow conspiracy and then you determine how much weight there is that's right but is there a corresponding he could have moved for a variance here right the conspiracy is too large to say yeah and he didn't know is there something corresponding to the relevant conduct situation in the election haven't situation of restitution oh i understand no no there's not and that's because we're still talking about restitution and restitution has to be limited to losses caused by the offense so relevant conduct has car restitution too i don't think moving for a variance or even arguing for a variance on appeal we know we didn't do that is not worthwhile and we wouldn't want that there's no spillover prejudice from this the prejudice just like caldwell is at the sentencing but i'd but i don't think relevant conduct can play any role whatsoever because it is restitution like that is the main difference between restitution lost and guidelines loss guideline loss includes relevant conduct rest restitution loss is soley the offen so you know we wish there had been in that area gents is a big wide conspiracy that's problem it is and there wasn't a evidence of a big conspiracy the question is what was the conspiracy that my client joined and that's that's why we rely on evans and alice as isn't it a question of what conspiracy your client got and victor well and we don't know the answer to that either and that's for two reasons one the conspiracy that the prosecutor argued to the jury is the conspiracy that we're pushing by many ships and one guy said i'll help you unload ship number four because i'm in town the day it happens to be on my doc and so he's then convicted of joining the conspiracy to bring all these ships  he limit his liability just to that ship on dock for does he buy into the entire deal i think it's dock for under your opinion and evans i mean that was diana price and evidence she bought four ounces of crack cocaine knowing what else was going on but that was her that was the limitation of her participation in the conspiracy and what this court said was that's that was her agreement there was a bigger conspiracy but you have to look at what her individual liability depends on what her agreement in the conspiracy coconspirators are equal and you have to look at what their goal was what was their common goal and the only thing my client wanted the only thing the government told the jury my client wanted was to have sex on that one night not to further th have had sex with with r w and i remember that night as a limited conspiracy because in order to enable me to have sex with them that night it was necessary that you will have previously daken them in exercise psychological control over them and prepared them and and gotten them compliant through these weeks of sexual slavery basically right and so i didn't buy into the whole conspiracy because the what preceded this night was necessary for that night to occur no overtime was thank you so i've two short responses to that and the st one is one there's there's no evidence that he knew of the sexual slavery all the stuff he called a number of these girls showed up at his door the nd thing is i think this is comparable to like a cocaine buyer knowing that when they buy cocaine this this this drug is coming from mexico it's coming from these cartels that are murdering people in the streets that doesn't make that buyer a conspirator with those people just because he knows that was kind of what led to where he was because his sole agreement he just wanted the drugs and so that you know so i mean on your cocaine case ordinarily the government would charge you with buying cocaine on such a day not conspiracy that's true and so that's the difference i mean if it was just buying sex that day that would be an easy question on the cocaine person if he was charged he probably would have gotten acquitted but assuming he didn't and doesn't challenge the conviction it lissie bought cocaine on one day charged with a conspiracy to earning the conspiracy to bring it in from mexico or under as there were ever and he says i plead guilty i'm evidence which we don't have those facts here but i think we have something close to those facts because that's what that was the position that my my cut my client was and that he was a pirate the services and all he cared was to receive the services he didn't care anything about further and we have a conviction here of a conspiracy right that's true and he is not talent during that conviction only because he can show prejudice and well these are challenging it is not only pietro so we accept that we accept that he was part of a conspiracy and the conspiracy was defined as the two or three week occasion so it seems to me i think maybe it was a trial strategy problem he probably could have avoided the conspiracy the jury of how to convict him of conspiracy was to say he called this number on this one night and his goal was to text attain sex on that one night the jury instructions allowed conviction on that theory the jury instructions didn't say in order to convict him you have to find that he joined this business for these three weeks to maximize profits of this thing that's not how it was written and even if it had been if the evidence is insufficient then the offense of conviction has to be what the evidence would support so i don't it please the court and you can see anderson on behalf of the united states this is a case of two child victims they were fourteen and fifteen when mr anthony bought them for sex and one of those girls had never been trafficked or abused before and the district court judge saw both girls she saw them testify she saw r w testify twice because there was another trial that happened before this one and the judge reviewed the victim impact statement of r w and her mother and a statement by the guardian ad litum appointed to represent and i am those are in the record and volume of the sealed filings where they describe the trauma specifically in this case that was inflicted upon both of those girls the district court specifically found in her order that those victim impact statements are credible but they support proximate cause here that this conspiracy and mr anthony subset of offense also caused these harms as justice kennedy said in paralyzing proximate cause is a sufficient connection to the result argument is that well i mean let me maybe make it a little more specific why should mr anthony have to pay restitution for harm that was caused earlier by william johnson thank you i the government is not conceding that any of the restitution order in this case is going to harm caused by william van trail johnson so it is not a double recovery or a windfall the united states present evidence in them each needed between two hundred and ninety six thousand dollars and five million dollars in treatment over the course of their lifetime what was that based on besides the victim impact statement that was based on the victim impact statements and based on ms bryant who submitted a declaration and had reviewed material and from authorities and reports of what it cost to try to help that ms bryant distinguish between harm caused in the previous case by william johnson and harm caused by the defendants in this case she did the court in this case has the letter that she submitted to the court unwilling vendrell johnson's case and the affidavit that she supported and the sheep entered in this case which was specific to the facts of this case and the victim impact statements were specific to these conspirators not william bond johnson and hear i think what i'm hearing you say is that there was no that the district court didn't have to apportion anything between the two cases i believe that's right but either way we don't get to the top the and up what treatment could be required because in the other case it was nine hundred thousand dollars even if you add the three hundred thousand dollars here we're not to the treatment that r w could need to because the court went below the bottom and of what was brian asked me did the costs of a lifetime for treatment be she excluded any inpatient treatment she excluded any other types of expenses more frequent counseling sessions  bi weekly urban area counseling session she went with the lowest possible bare minimum treatment which was rural by weekly treatment and then ordered below that let me ask it this way if that's a calendar tw twenty and each of these young girls have therapy and so january two thousand and twenty there are a p and the bill for that however many sessions as a one thousand dollars for each  much of that is william how much of that is mr anthony mr anthony has paying one thousand dollars because there's intervening causation here absent anything that happened before to these as william getting a pass then mr anthony is paying all or there are people now now and as the amicus in this case mentioned and as just  of my aura did in her dissent and para line there are options within the restitution statute that in the end of justice the court can later adjust the schedules of payments to ensure that there's fairness in the results of payments but here  the goal of restitution is to make the victims whole and our position is that even if everyone were to pay all of the amounts that they were ordered to pay neither of these victims would be made whole and in fact congress made a factual finding in twenty two u s c seventy want to one that adequate and facilities do not exist to meet victims needs regarding health care housing education legal assistance to safely reintegrate trafficking victims so it is they were not made whole by this order they're not there's no double recovery or windfall here because at the end of the day r w is still not being awarded what she could need and treatment that a her treating healthcare provider said with likely be necessary or would be necessary she says if we accept the accept she she adopted the reasonably what she said was reasonable but it was below the bottom end and this court is now looking to see whether there was an error there and she based that judgment based on credibility assessments of the victims to find the victim impact statements were credible and that there was proximate cause ation here and that that was a reasonable cost but it excludes any inpatient treatment or any other things and so our point is that there's not double recovery here and that it was based on credibility determinations that the judge made there's no she was almost certainly suffered additional trauma because of the nd prostitution ring yes but the expert testimony here seek to separate out incrementally what that nd trauma would cost to remedy that was separate and distinct from that the analysis here that she was and she was unusually susceptible were vulnerable because of the st abuse for her but that's the defendant's problem as anthony's problem and mean that would take care of the causation question but it doesn't take care of the amount of damages because the st person is still having to pay for making her skull fee and then the nd person  was toward joined several restitution with it was a child pornography case and the defendant argued that there was harm from other perpetrators and the question is whether there's proximate cause ation here if that answer is affirmative then in terms of assessing the amount of restitution it's how much it costs to make the victim whole once you have proximate cause ation you do not for this offense you do not then apportion it or offset it what you would have to do would be an offset and i think the position by the defendant here is that he was not arguing for an offset from this restitution award our position is that he wouldn't have met the requirements for an offset because it hasn't actually been paid there's no evidence that has been paid or that it's the same loss that in fact this is an independent loss that based on the judge's finding that and women are you get the same amount with the amount having no trauma the judge made the determination that this i need some help and understanding what the judge actually i'm going from the orders just said there may be some overlap between the harm suffered by r w here and the harm suffered by william on trail in the in the william bond trail johnson case that's walk but then judge said the relevant law requires the court to make the victim's whole in this case what what did the court mean by the relevant law i think that what the court means is that three thousand six hundred and sixty four requires the court to make the victim whole if there's proximate cause ation and  there's language explaining that there isn't discretion once you've established proximate cause ation she then cut back on the proximate cause ation afterwards and apportion it eight that it is does not require it actually reversed the court that had and said it was too strict in requiring but for causing action and that's the final paragraph of the paralyzing decision but pair line is different because there's not a conspiracy and because there isn't a hands on offense with an in person encounter our position is that mr anthony paid to rape this kid and rape is not less harmful and he doesn't get a discount because someone raped her earlier i mean and they are just let's let me just there's another passage the court said there was an absence of evidence from the offending ounce demonstrating that the award against william johnson changed or alter the harm suffered in this case court err by putting the burden on mr anthony to show that isn't isn't the burden on the government to demonstrate what the appropriate restitution should be the burden is on the government writes what did the court mean by that i mean like if it seems like courts trying to put the burden on the defendant i think that's almost correct in that it gets a little confusing when the argument is that r w has already been made whole by an earlier restitution award because that isn't it's not the yards that the argument that was part of the argument the argument is twofold that number one there's not proximate cause because part of the harm was caused by william bunch of johnson and the judge rejected that and said this offense cost of this harm and then the nd part was saying there shouldn't excuse me this i think that i think you've just put finger on something that is it's been the source of confusion when you say this harm what are you talking about i am talking about the trauma that the victims experienced as a result of this conspiracy as described in the victim impact statement what about the harm that they experienced from william johnson i that is a distinct time ok but did the government prove distinct harm yes you know and how did it prove that when the physician's assistant included the harm caused by both william johnson on the one court any basis on which to make that determination i think miss bryant and the victim impact statement provide a basis to make that determination this bryant make provides that basis in explaining like and the b c circuit case and resealed case that the amount of captivity doesn't change the harm so even had this conspiracy started on october th or encompassed only the subset of offense that mr anthony was convicted  obtaining these girls in captivity at that point in time would have caused the trauma and need that would have required this treatment and not cause ation for this full extent of damage it does  conspiracy under five thousand and ninety four dollars c which is a conspiracy to violate five thousand and ninety one dollars that is different than a drug conspiracy because it is both sides of the equations a drug conspiracy typically relates to distribution the supply side human trafficking is different in five thousand and ninety one congress criminalized lots of active verbs recruiting enticing harboring transporting providing obtaining maintaining it captures both the supply and the demand side of the equation which makes this different than a drug conspiracy where having aid and someone who obtains the drugs is not doesn't capture both sides and here where mr anthony is an equivalent trafficker to the people who are supplying it and a necessary person and there was testimony by an expert that the demand and folks like mr anthony rich fuel the supply and that as judg said a lot of the prothero parts of that conspiracy are necessary in order to provide that particular child to him in a state in which she is willing to have sex with a stranger and because of that  shortening the conspiracy eliminates necessary steps of the conspiracy and it eliminates acts that the defendant himself admits are not just foreseeable but our position is are necessary for that conspiracy to be successful and there was testimony which the court considered at sentencing and the jury considered at the trial from an expert that that demand is essential to the market and there is cause ation in that him seeking out and he called lots of numbers there's testimony that he called lots of numbers and chose this particular service and that several people came into his building so he met the coconspirators he recalls maurice johnson and of repetition let me just make sure i understand one part of your argument so the restitution award to the you was three was this three hundred and twenty seven thousand dollars figure yes and it's your position that that figure represents of finding by the district court as to the damage caused by these defendants and does not include any of the harm caused by william johnson that is our position that that ok the th circuit recently and rocket provided affirmed an award of future education on occupational expenses even though i just wonder about his or her condition yes about it so i think we've we've we've reached well that concludes the morning so the court will stand in recess until tomorrow morning at eight