letters are two minutes for this morning march the third appearance before this work for mr mondale and the government relating to issues surrounding the determination of restitution for child district court's adoption of the proximate cause ation standard the same standard that apparently line court eventually did adopt and it also agreed with the district court's factual finding that the government i've done had made no showing as to the amount of any losses attributable to mr man's out this work remanded the case because the district works five thousand dollars award five thousand dollars reward was it consistent with that actual finding in doing so  and it's express expectation that the government will do more this time around to aid the district court in its endeavor especially in light of its national reverting to do so under set under section three six six four open ended pragmatic said there's no one perfect way of doing this and seem to give district courts a lot more leeway i don't need that that this supreme court paralyzed gave the words any any more leeway in fact i think that the factors except for very much more specific than anything that this court did say in myself in addition they'll be there is does recognise that there may not be one precise correct answer to this this question the fact that there may not be one correct answer does not mean that there is not a wrong answer and the wrong answer here certainly is seventy five hundred dollars as it is as if there's no way to tell me of but peril mean give us some wrong answers one wrong answer is a trivial i don't believe that that is part of caroline's holding first of all so several things are on on the district we're sorry on supreme court secession of trivial first of all the that discussion is in a section of the opinion that is not essential to seventy one thousand images one over seventy one thousand a warning forty seven dollars yes and i will be lawful and i'll explain why one because there's nothing in one hundred fifty nine to prevent that to be clear the reveal award so i think trivial is is is relative it's a if if someone steals two dollars from me and the quarter words mean two dollars in restitution though it's a low amount i accurately reflects the damage that i that sorry that i caused that i've been caught so if forty seven dollars is an accurate representation of the damage caused by mr mondale then it's not trivial in context in context it's doesn't say she said that is the consequence of the approach that was ultimately she did not say i only saw her forty seven dollars worth of damage on h b o she i believe that that is that is exactly what her representation and she says she she it's a it's essentially a warning to the supreme court that's because to be clear if we step back in the context of what her where how her statement was made she was asking the court to to join several liability  standard and have each defended responsible for her poor amount of damages and and so she said to the district court if you adopt the cross and causation standard this this is the implication of that because any there  have that this could be the implication of adopting a legal argument with which i disagree that is a not the same thing as saying i had knowledge that i was only forty seven dollars now image by each individual possessor that's what i thought you were appear in in this case i understand that you made a representation oh i i only meant to say that that was my interpretation of her representation in the in the court we don't know what she was  the form filing for the court yes she has and in fact she she made the representation in their minds out to briefing that the government's won over and calculation was a fiction and that she was being damaged far more by far more people than just the end that was represented but to be clear amy this is the third time that we're before this court this is the first time that we're before this court with out of representative from any there was no representative speaking i mean these behalf in this particular every man so yes as far as we know we feel we know that amy has requested the full amount of her damages which caroline says that she cannot statute says that the government must demonstrate the amount and in order to do so i think the government has again there's two problems the government must provide evidence and data and it also must provide a methodology now do i think it  fact that there isn't that the government keeper alone is the fact alone that the government didn't provide an amount the necessary or sufficient here now but the government but there is not evidence and data especially and i can't be clear about this this aggregating the losses caused by in the initial abuse in the initial distribution and also desegregating losses caused by cases there have been expert reports psychologist who will interview the victim and be clear this would have this would only have to be done one time this is not something that would have to be done over and over again so that it would be a  a therapist with any real scientific circuit to going to sag brigade you know lifetime of therapy that goes up and down or needs go up and down based on stressors in her life learning more about in the case of all of the year eight well what the psychologist did was say i think fifty percent of this of this victim's damages are caused by the initial abuse and the initial distribution this is what i'm millette questions and getting to the heart of what we're trying to do and the problem it seems to me that everybody's been struggling with in this case is actually and the supreme court it seems to be  following majority opinion why isn't what happened here actually what the supreme court come clean with given that we know that very bright jurors come up with all kinds of different theories about a i would have expected her to do something similar to what any good i do think that that we are sorry that five thousand dollars was less damage you've already made that fine but she but this court found that essentially she couldn't make that finding well it was based on no evidence in the record and so it went back and the government said well we can't provide certain types of that and we challenge that assertion that that is  we put all of that information in front of the court and the court didn't even acknowledge it all was all she said about about those particular factors were that the government said that it can't come up with anything and i accept that nothing's from court so they have to do this at home maybe you can try no is an internet year of how many people are looking at these photos and to say that you can tell based on a ras how many people are doing it seems to me a wink and a nod because  damages when we're sorry w dismiss that just based on how well you know the more people that are hurting you the less anybody oh is of each person's view is in fact conflicting serious harm but again she she only has  lately commons and so there's nobody who's still having the pain there are there tara which is one of the victims in this case she withdrew her her request for restitution early on in the proceedings because she had been made whole there is one opinion in the disher court that denies her restitution because it found that she had been made whole there there are victims that don't seek restitution anymore because they have been made whole so that yes there are instances it just seems that you've got so many perpetrators no one knows who's going to get arrested no one knows who's going to get arrested and convicted no one knows who's going to get arrested convicted and have the money to pay for it and maybe somebody gets on the right word but fortunate in this very narrow sense that somebody gets arrested who's really wealthy and pays off but that seems to me that essentially each of you it causes her entire loss amount and we would have had caroline originally would have won would you agree that if we actually were able to come up with a number of everybody in the world who seem mean that we're not even talking forty seven dollars we'd be lucky to be talking a penny i would absolutely agree i would absolutely agree so well so should the perfect be the enemy of the good now we're here because seventy five hundred dollars is wrong so it's a penny more or less get it if you were asking me what do i think a correct calculation of under caroline will be i think that that is why we  perfect then i will say that if you ask me what is the good i say not seventy five hundred dollars but how well how is someone supposed to decide between a penny or less than a penny and seventy five hundred and the court comes up with sixteen cents forty seven dollars and then is the court based on what is the court supposed to look at to artificially really make this rate that you can't be seventy five hundred yet and that under the model you think is the correct one i heard you say that it will be a penny or less so i don't understand how you then you can go well i get back nobody likes zappa sure can't be seventy five hundred we have to have a basis for a reversal for some basis for reversal here and i don't know how something less than seventy five hundred is any more directionless than you describe the government's act proposed first not we don't have the burden of proof in this case the government does and my suggestion if you don't have to accept this and i mean it is just hard on appeal you're trying to overturn the district court's decision here so it's your job to identify what the district court formula if doing so would result in the trivial restitution of words and again i mean i believe that that that statement is internally consistent with the actual holding of caroline and that this is  what i think that says it it's a question certainly it's not part of that i don't believe it's part of the whole thing and to be clear the point i just want struck i'm sorry i believe you want to be making actually reading you correctly everything other than the determination  the adoption of the advertising aggregate causation model so it i would say had no eighteen in the in that caroline opinion to be clear i don't words were holding that it can't be a token our nominal amount that's i'm holding legal causation here is to impress upon offenders and make real victims yes and in a penny going to do what i know first the fact that these people are serving incarcerate corey sentences well over is the court says in considering this question of the relevant denominator and how much you spread the losses the courts says that you should do that in a way that enables the victim to someday collect restitution for all of her losses right where is that your song for sixty two or right before a letter c the last paragraph and b and yes i mean if you use the denominator that you want to use that's key to number of viewers number of images whatever it is in a world where everyone agrees most of the viewers will never be caught not no victim will will be able to be made whole but that the court itself says that you need to take into account people who are in who of course will not be caught and convicted those are the denominator of its skin when naipaul some ultra vigilant victim who wants to sue everyone in the world who might be convicted should be made whole but the very next part of that sentence is that it makes sense to spread payment among a larger amount and number of offenders in amounts more closely proportional to their respective causal roles and their own circumstances that more are made aware so that more are made aware through the concrete mechanism of restitution of the impact of child pornography possession we think the reality of the reality of this opinion is it's on the one hand on the other hand and i get your so you're  i understand there's a reason and here i believe that there's a reason for that and that i don't believe her without saying it is in my briefs but this issue as to how to determine the amount of restitution was not briefed fully briefed by the parties the government's attributing to defendants responsibility for what they have done and charging them for it and making them realise the costs of their activities and doing our best to make victims whole may not be perfect for either side in this process seems some of the district court did here was take these factors went through the factors acknowledged the minor role and came up with an assessment and i'm having trouble understanding what legal error we can point to in the district court's analysis and they're going to take in the district court in gage an analysis where it went through the peril and factors went through and found as did she do wrong but this court told her to start two to address the restitution issue a new it vacated that award and said said recalculate a new because i did you said it is it's more than five thousand but i can't figure out what it is at least at stop you can't give someone right less than what you've said they're entitled to and you have said they're and she's entitled to more than five thousand you can give her less than what you know she's entitle baseless because it just records now given seventy five hundred if you can point to me where the district court says i admit this is a baseless amount i will i think terms i think i think i'm dreaming and it manzano ackerman's l one when she ordered zero and said that the government didn't meet i opinion takes into account eleven times and caroline the majority says that any has been damaged by thousands and thousands of individuals so that cannot be squared with with an award a seventy five hundred dollars which would only mean that four hundred that that she's only been damaged by four hundred and some odd individuals it is inconsistent with the essential holding you strip everything away the essential holding a pair line is that a defendant can not be held liable for damages that he did not proximately cause why don't we hear from the government will give you some time in  defendant in causing any harm the district court recognized the correct long recognized that apparently was not the law consulted the appropriate factors and the number that's in line with what other courts have awarded what do you think was the district court's reasoning so i think the district courts reasoning is exactly what parenting suggested district court should do which is start with by trying to figure out the aggregate losses they go through those  harrowing factors that the supreme court suggested district courts could go through and then consult other awards which the district court did here so i think the district court did go to court to text boxes but it says at the at the end of its analysis some of the five hundred dollars is a reasonable award because fill in the blank i'm having trouble filling in my so i don't think that god unless it's averaging at judge has or had been dealing with this case for eight years he is there is there any reason to think that those awards or reflect similar cases so i think those are five of the  first i think the court has to look at the whole record which includes the lengthy transcript of the hearing that the district court held here the district court is engaging with the defense on the government on the sixteen or so opinions that the government had cited in its brief it's not clear why it is that the district court those five opinions were compelling as to i mean if you were doing if you were doing a criminal sentence for a robbery then the district court says well here here are five froggery cases where the sentence sentences have been five years ten years fifteen years twenty years twenty five years c e c e g those five sentencing at fifteen with that be sufficiently recent yes as long as the district court's also going through the thirty five fifty three a factors which i think that the district court did go through the parallel of that in terms of parenting factors but it really didn't write it said to take so take the first three factors right which all bear on what i'm thinking of as the denominator question like how many abusers are we talking about district court says the number of past convictions is about two hundred which would produce a substantially higher award than she worded great and the district court said there is no information on the broader number of past and future convictions and there is no information on the still broader number of total offenders out there in the world and then no indication of how the seventy five hundred might be reasonably related to you know she's analyzed all the factors but the award doesn't seem to link up to the smallest number an can't link up to the larger numbers because she said no evidence on them so of when there's analysis rates of actors but it just doesn't seem to connect to the bottom line well so i think the supreme court inherently is saying there is no mathematical way to get to single correct answer they numbers and maybe but what if they're saying i mean there is part two of the opinion which says the ultimate question is amount of harm proximately caused by this offense and if that if that were all there is you would think that there has the relevant denominators factor three which is the number of offenders in the world and if this guy is different there's there's nothing to think he's worse right it's one image no distribution now attempt to contact the victim at  so so he's one of however many offenders are we know we know there are thousands so what's if you're really if you're just trying to do what the court said was the legal the relevant legal question in part two of the opinion why wouldn't you have to try to link the award to number of viewers so i think that's what the dissent says imperiling but there's a reason it's the dissent that is what the majority is is rejecting as part of its opinion that's why the dissent is so vehement that it should just be this forty seven dollar figure that he is suggesting the majority is rejecting that as your honor pointed out the majority saying restitution should eventually make the victim that's the i mean that's also in the portion of the opinion and i just don't know how to reconcile those two exactly look the court's broader reasoning seems to say that the relevant question is key to number of offenders and that piece from the end of the analysis seems to say that it has to be keyed to the number of convictions no formula that can get you to a correct answer and so much as in sentencing we have to defer to dish or course we may not know why a district court picks a sentence of sixteen months or sixty six months and we don't have to go back and see and explain to ourselves why it is that the district court settled on that particular number what we have to make sure of just like in sentencing is that the government the district court is recognizing the correct applying the factors that it's supposed to be consulting and is giving a substantively reasonable answer every answer that's in line with other opinions we would know that for circuits have accepted the one over and method which would have suggested a sixteen thousand dollar award here and the fifth circuit has adopted or accepted modified whatever and which would have been fifteen thousand or fourteen thousand here so these these awards are the court might have doing and she started out this way you know looking around the country to see what district court judges are doing these cases trying to figure out what is a figure out what a reasonable district court considering these factors would do there is never going to be rare case this linkage that requires to have some substitute living it can't be a trivial award it can't be a severe award inherently not the end of opinion the opinion does encourage district courts to check on other district court opinions what's being awarded elsewhere and so i think that the one over and method which has been upheld in four circuits but the modified version in the desert that i mean that's a suggestion of a reasonable method start here what time you didn't give that number to the district court here that had been given to the district court here in the monster well i believe in the montell to briefing either the monza land had been changed in the interim but we did not offer that one over and formula which the district court had already rejected but it oh this report that i believe in that was the only number that was the only number you gave that concert could have served as a denominator i think that's right and so the district court it would have been kind of simple division for the district court to find that number so suppose hypothetically on this set of facts the and i know that the year or about five thousand five hundred cases where actual investigations have produced identif images of amy so i'm just i'm going to use that number as my denominator it's a very conservative estimate of the number of offenders in the world can use that as my denominator it obviously links up to this idea of proximate cause and when you do the division you get six hundred dollars just record of words six hundred dollars were up on appeal is fine notwithstanding the order of magnitude difference so first as i think that's not an ongoing problem given the recent amendment a statute congress has now set a floor on three thousand dollars in restitution awards so i think that's going on here recurring problem but it sure there are certainly cases that are pending right that would force the court but i do think that with the supreme court is ultimately saying is that there's a range of discretion for district courts to apply and in some ways we are in a free guidelines world where there isn't there aren't fixed numbers and so i think at that point the district court does apply to you and there's no basis whatsoever to think the victims you know the compensation from them or should be expected to get restitution from them or we're going to be the government's position that look this is a domestic criminal that you know we're going to look at   i haven't i don't know the department of justice is specific position on that question i do know that we will defend a variety of positions i don't think that's normally what we're urging in the district court and we convicted in order to pay restitution to in the united states in the united states of no what other world countries do maybe someone else orders it as well i have no idea if there were other countries that were ordering restitution to amy then i think that could have to be taken into account because she can't be recovering more than her total outstanding losses the department's position is and the new statute makes clear when she actually could collapse or fall outstanding losses she cannot continue to collect restitution so it could be that if there were international awards of restitution for the cover of conduct that would still be part of the same aggregate consul large caused by the traffic was backed by cases and say we have criminal statutes we presume they need to operate with them domestic grant so that that is a framework within which congress is acting i think that's right i certainly think this court does not have to resolve that question in this case and it is the department's position that there is no way to estimate the number of the total number of offenders in the world in a reliable way that reasonably reliable way paralympians recognises that possibility a says that as any specifically so yes so so then you either have to be willing to defend awards that will be an order of magnitude lower  or you have to say that it's legal error to keep the denominator to that number i think that's right and i do think also which is it you defend that if you sat approach is that don't know what the number is but it's at least five thousand song and use five thousand and one to nominate that's certain so i haven't done that division but that number we get a firm that is my my sense is that  would would defend that calculation and the defense does point to a case where there was a stipulated restitution amount where the defense and the prosecution jointly agreed to it but use that and see  we not be arguing for that as a device or even we are going for you we argue that it's wrong i think in the district court we would be arguing that that would be that would run into the problem of trying to fully compensate victims and that they're not going to be five thousand people who are going to be there any restitution so using that as the divisor is not going to be meeting any hole but whether we would defend that on appeal if the district cour mr man's no looked at this here i think that we don't have there's no information in the record as to how many times he looked at the picture i think it's unclear whether technology can always shooting with even the one hand i think that his arm potentially true and i'm still trying to figure out because it's my understanding just based on the story of the factual history here is that  that set off a whole new round of need for treatment and difficulties and problems in her life right now i think it's not entirely clear whether it's that one person looking at it or whether it's the knowledge that this is out there and likely to remain out there may i think it's more the latter certainly as described in the supreme court apparently an opinion that it's the knowledge that this is out there she can't know who is viewed  carrying pictures themselves or playing or asking or we don't have you seen them for we've we've seen all manner of horrific behavior designed to acquire more and more desire for these radios is there any information has hers in the trade you need out of credit her with a lot of the guns as part of his distribution process trading something for it and i think we can just say that the record doesn't reflect how it is that he go just very quickly i wanted to make the point that concentrating only on identifiable orcon those descendants that are that are convicted it really flies in the face i think of paralyzing essential holding and also ignores the fact that in the very little briefing on this issue very little briefing on this issue the government did put forward factors that it felt courts could consider it put together factors and to the factors that it did not include but this is a cream court specifically included to the government's list were please consider future offenders please consider the broad number of offenders guidelines by no means do i think an average looking at what the average of words of different courts have done even with respect to any because we don't know what methodology they use we have no idea whether those were her the district court's factual finding the least culpable of defendants and yet he is above he somehow is above this national average so again i don't embrace the average but as you're going to find had to trade or yes yes i mean as far as far as i know there's that i don't and certainly in this case that there is no evidence that there is any hate but there's or i mean that's one of the ways i don't know that's how he came into possession of this we don't know sometimes they are just there like there's two people talking on the internet and one because they're sad and lonely trying to make friends with the other sends his cache of child pornography and to be clear what happens is really it's a cache of child pornography it's not that he looked i don't know this for a fact but generally the way these things happened is it's not like they're looking through a catalog and saying i want that one that one that one it's just this is the cash that i'm downloading and this is what this is what's available out there so so i want to be clear that this was the nature of so has sound like they're not being all that impressed with the consequences of their child pornography crimes it was just a cache of photos she was one of them there well it sounds is one essential holding and then there's also the statute which specifically enumerated the categories of harm that a court is allowed to work one of them is not punitive damages it's not there are specific categories and there there it's the harm that that is that in the alleged to be three point two million dollars again it's a it's a confined universe and so the last thing i would want to say is we did write a fool our brief him on cell two was a full dissection of one over and in some i hope that that is not what he did issue here because that wasn't what was raised below it wasn't what we concentrated our briefing on either below or here i could go through a litany of issues with one over and one being the fact that even though there can be there that number does not include convictions where a restitution award was not worth or any number of reasons one because the for whatever reason the victim withdrew her request one because the victim never made the request you'll see in the  any reports that she was a she was notified of seven hundred thirty three cases involving her image and she only requested in a certain amount of cases and one being outside the settlements so what happens is should come to a settlement with the defendant go out on that war and then she'll withdraw no her request in in the criminal case and so then there's no that's not included in and there's  includes state cases it's a federal case number it's a cell it's based on self reporting by the d o j it's an end and the government below agreed that it was most likely an underestimate of even what they represented to be