we have challenged various aspects of the nine individual restitution awards in this case but the overriding problem and the legal issue we want to talk about today is the government's failure to decide aggregate the losses caused by the initial abuse or from the losses from the victims total losses as a result of that failure a mere possessor like mr rothenberg who played a very minor role in the process risk becoming liable for the losses of the abuser the most culpable actor in the process and that contravenes the bedrock princip emphasized in paralyzing that restitution must reflect the defendant's own conduct not the conduct of others and the ninth and tenth circuits have persuasively held that caroline requires such just aggregation and we believe the statute does as well eighteen u s c thirty six sixty four the places the burden on the government to prove the victim's losses as a result of the offense not the total losses but the losses as a result of the offense and we know from peril line that those losses in a possession case are the losses that derive from the ongoing traffic in the images those are the only losses that a possessor contributes to and therefore that's why it has to be the starting point for the apportionment that the district court undertakes was because of the initial exploitation and abuse and there were twenty seven and i have percent of it was because of the continuing existence of it on the internet this is the experts are already figure and we don't think that it's too burdensome to ask them to give a general approximation of the amount of harm that derives from the abuse and the amount of harm that derives from the trafficking and we will and experts have done this in other cases i'd prefer that i don't doubt that they'll come up with a number if you give them enough time and retain them they'll come up with some estimate but how does how does that even pass the last test for dollar timing how can you possibly know that this victim would not have suffered this percentage of the suffering she's undergoing but for the existence of the mon the internet well in many cases the victim suffers harm before the images are distributed and that's a factor that could be taken into account as well i mean all we can say is that experts have done this in other cases that we know of the second circuit decision in minor and my any are the expert did this in a case last month out of california a case called clemens applying the ninth circuit precedent the experts did this in some for some of the victims and they received restitution as a result the ninth circuit says it doesn't have to be a precise mathematical figure it doesn't have to be an itemized dollar for dollar amount all that we need is a general approximation which is good enough for restitution but without even attempting to do that this aggregation what's happening is that the the possessor or someone who possesses one or two images is going to be held liable criminally liable as part of his sentence for for conduct that an abuser the most culpable actor engaged and paralyzed make clear that it does not want that to happen it rejected the victim's suggestion for joint several liability because it emphasized that we're talking about a sentence a criminal sentence we're not going to import tort law we're going to look to it for guidance but we're not going to import it wholesale we don't want criminal defendants criminally liable for stuff that they did not do and so we think that this is something the experts have to at least attempt and that's why paralyzed recognize the complications may arise from this but that's something that courts can sort out down the road but in this case and in other cases  where the experts are not even attempting that desegregation process then we don't even get to the complications we don't know if experts are having problems at all and we don't think that they will so the other thing i point out is is we don't think the statute really leaves any choice because it's the government's burden to prove the losses that are the result of the offense it does not say that they can calculate total losses and then work backwards from there because that's an unacceptable risk that defendants are going to be liable for for conduct of the abuser why did why can't you estimate total officer this point and work back in so well looking back at how much you suffered who would have suffered one third of all because of the internet distribution but two thirds of it occurred at the time of the abuse and when you have to start a fraud to go forward and further back and go back if i understood i think that's exactly what we're proposing is you can start with the total losses but then you have to disaggregate the the harm from the abuse so if it's one third then you extract that and then you're left with what parallel calls it defines the term general loss on page four forty nine of the opinion that is the term that the court uses throughout the opinion general loss is to refer only to traffic based losses and then from there we look to the factors to apportion those general losses by the defendant's relative role in causing them and that's the objective that parallel and set out for courts as we look to the defense we cannot quantify a particular defendant's exact losses that he has caused so it adopted an aggregate causation theory it's a less demanding causation theory that it borrowed from tort law and it said ok we're going to apportion all the possessors and distributors are contributing to these traffic based losses so once you have those general losses then we're going to ascertain the defendant's relative role we're going to look at the factors we're go how many images he had how many other defendants were involved whether there was distribution whether there was reproduction of the images and that's going to be his relative role but we have to have the right starting point so i have a question let's just take one victim for example take jane and not try to come up with a chart for images one hundred thousand dollars it was evidence of a february tw as was a possessor you agree the district court did acknowledge this was a possessor and he had to treat the possessor different than the distributor correct yes ok so just tell me on jane she's got a hundred and one thousand therapy costs and he awarded only three thousand that tell me let's say it's even deneuve overview i'm not sure all of this is some issues or dunno both some issues are probably plain error here images and even though she has evidence because an expert didn't say out of that one hundred and won i attribute this to one mr rosmer why can't the district court do that he's looking at the picture she and said ok it's a hunger out there seven i mean if even if i do seven times three that's only twenty one thousand for the whole i mean how is this abuse of discretion because so you really i'm making an argument you have to have expert testimony taking the hundred and dividing it up all of our speculation of this defendant that defendant no we're not asking the court to divide up by minute so yeah i got to have an expert is what you're saying number one we believe that that is how this process has played out and we believe there's no other way for the government to meet its burden as to the low cost that  expert you've got to have is an economics expert a psych expert what kind of expert well there are various experts that the victims have employed some are friends i'm not asking them a mess can you you don't think it's the type of expert burden i don't know that there's a particular type of expert in every case but we think that the victim has to undergo psychological evaluation and then based on that evaluation there how do you say that has to happen after  your client has pled to i think that's another thing you said that's a separate argument based which is playing there on that argument well we disagree with that but but that's a separate issue on the desegregation issue leave that we're not asking the what the government has proposed i think more in line with what your honor suggesting that you take the total loss figure and divide it by the number no i'm not suggesting that i don't think the government's proposing that i think you need individual assessment you have to look what is the role possess a distributor you gotta look at how many images you've got to see how many of the people are paying you've got to look at all the peril on factors and i'm just doing this one case so let's go back you're saying they have to have an expert could the that would be at least a starting point that no record is there as you know is that enough i think if that let's say we reverse i got to send it back i got to know what the government has to do what is it if the victim came in a victim impact statement and said i believe that seventy five percent of my harm comes from the traffic and twenty five percent comes from the abuse that would be evidence in the record that the court could be sufficient evidence it would if the court credited that i think it would it would be sufficient now the defense could challenge that if it believed that the proportion was wrong and they cross examine the victim no i think they would put in their own expert report and we could have dueling expert reports and the district court would have the discretion to credit one over the other i think these are the sort of complicated let's say there was a forensic guy ok who's not a psychologist said i looked at the psych exam here's what i would work to that would be some sort of evidence i think now would that be sufficient evidence to get over their burden and he's  desegregating the losses i think so i think that's all we're asking i think we're not trying to hamstring what the victims or the government the type of evidence that they can put in all we're saying there needs to be some basis in the record to desegregate the total loss amount so that we're district court is not able is not competent yes we're cheer saying to look at the poor images the amount of loss like we do in almost any of the damage calculations i think that's it it seems like we do this all the time  crimes and says in restitution i think i think that the problem is that if they're working from the wrong starting point then they don't even get to the factors that they don't have that they're not working they have the information seven of the defendants they have the amount of therapy costs they have the amount of images right those go to the paralyzed factors which we are seeing come into play only after you have the new year at mit he considered the paralyzed factors but he didn't do what didn't he it wasn't really the district courts fault he did not have the evidence in front of them that he needed to conduct the in now consider the paralyzing factors he did consider the parallel and factors but he was did not have the evidence of the events of my question yes so so we recognize that the district court had a difficult job here but we place the blame primarily on the government who bears the burden by statute thirty six sixty forty to present the court with just aggregated losses that the court connection used to consider the parallel and factors what is the defendant's relative role in contributing to those losses and had the court had that evidence in front of it then i think this would be a very different case and this is exactly the approach that the night in the ten circuits have adopted and we re considerable discretion in crafting a reasonable restitution order after weighing the permissive factors outlined in paralyzed on and analyzing the considerable documentation that was submitted in support of the victim's restitution requests and for these reasons district court's opinion should be affirmed on appeal impera line the supreme court was faced with essential a two issues the first was what what the level of causation was that was required in order to award restitution so for proximate cause ation what was required in that regard and then the second issue that the district court was faced with which is the issue that the appellants are focusing on today is how to award restitution how the district court supposed to go about once the causation requirement is met actually coming to an award that reflects the proximate cause ation and the harm caused by this particular defendant and line did here was create a framework it's stated that once the government was able to prove that the defendant had possessed this particular victim's images and once the government was able to prove that that victim had suffered harm as a result of the trafficking in their images that the question then became how to weigh these factors how to go about this balancing test and these factors account for the desegregation or the concept of desegregation rather that appellant's are putting forward today me ask you a question you know i think there are a couple of things to take into account one of course is this desegregation which i understand your point of paralyzing the parallel factors to a certain extent engage in desegregation i guess automatically but another one is of course substantive reasonable ness and i think if you just look at the numbers here they may or may not be substantive reasonable but here's my concern when i look at this i understand i've read through what the district court did and i think it had a very difficult task that it had to deal with and it mentioned a lot of different factors  par align but i don't know how it accounted for each of the factors so it's hard for me to review what they did what the district court did to determine whether it actually sort of gave credit to be idea of focusing on the defendant's particular role for example if i look at jenny we have a forty two thousand dollar award but i don't i'm not aware of whether there were total costs that were that were considered there there's only one other defendant the average that amount of restitution was seventy five hundred dollars for the other defendan government requested two thousand dollars there the victim did request forty two thousand six hundred somehow the award comes out to forty two thousand dollars i can't follow how the district court got there it may it may be totally fine how it did it because  think you know when we're talking about abuse abuse of discretion there are a lot of different ways the district court could have done it and all of them would have been fine but i can't tell what the district court did can you help me out with that what did the district court do here well i think what the district court did was weigh the factors imperiling and one of those factors in addition to the costs attributable to serve in expenses from the harm is to consider the number of images so one of the factors that paralyzing it lays out is that the courts can consider the number of images and for jenny for example the defendant actually did submit a an amount of restitution i think in recognition of the fact that the defendant here is had thirty four images and one video of jenny was in a total amount of the victim's damages for jenny well as you pointed the out the the lawyer for johnny did not put forward a number for total cost because as the  letter on behalf of johnny pointed out they were still in the process of getting the psychological evaluation completed in her in her case but i do think what's important is to step back and look at what the district court had in front of it in this case tallahassee what it had was nine victims submissions some lengthier than others but all that dealt with the similar harm this idea that each of these victims has been harmed as a result of the trafficking in their images and the amounts that have have flowed from that particular harm if you look for example at vickie's submissions if you look for example at amy's submissions they all go to this general harm that these victims feel and while jenny was at the beginning of this process and so her amounts couldn't be quantified at that point the district court could look at the totality of the submissions and coming to a reasonable estimate at the end of the day for how much jenny would suffer going forward and i think it was to what do you think the district court looked at for the totality of the  submissions of how it determined what jenny's total damages would be so i think that it reviewed all nine as it states in that order and i did it based on the other victims down which is you think i think it looks specifically at jenny's submissions which were the letter stating that you know laying out what the fees had been to date and what they thought the appropriate share was and then also the victim impact statement which did speak specifically to the damage that jenny has felt as a result of her images being trafficked and that and i had spent twelve thousand five hundred to get these report that the defendant wants these victims to get forensic psych and economics and she had to spend twelve thousand five hundred to do that brought us the twelve thousand for that i have got that right exactly the five thousand dollars for the fees one hundred dollars associated with pacer and then a twenty five thousand dollar approximation of some is actually almost twenty thousand of the forty two thousand and one a cost you'd actually expended out of pocket at that point yes and they got a video on a thirty far yes images here and i do think that the video in and of itself really supports a higher restitution amount being granted in this and you may well be right about that i'm not in any way does discussing really the substantive reasonable miss of the amounts my concern as i said it may be that all of these are substantively reasonable my concern is i don't know what the district court did to get to the amounts and so it makes it difficult for me to review but maybe you can you know i think what you're telling me is you think the district court just took all of these things and balance them according to what it thought and it didn't specify how it was doing it but it had actually balanced them and taken them into account is that what you're saying oh yes i'm for it specifically for johnny the district court did point out what factors it was considering in reaching this amount after considering her submissions the fact that only one other criminal defendant had paid restitution to that point the fact that there were a large number of images in her particular case and the fact that  taking those things into consideration the district court reached the amount of forty two thousand six hundred dollars so i don't doubt there's there is one point where for one of the victims the district courts in as well there are a lot of other victims here so that shows that imposing restitution is appropriate here and then there is one where there are fewer victims in the district courts as well there are fewer victims here so you know that shows that i should impose a high amount of restitution here and so it seems like maybe the district court is using the number factor the number of victims factor i'm sorry the number of defendants factor as sort of a one way reaction just doesn't one direction and  misunderstanding something they are well i think they think that's a problem or if you don't think that's a problem why isn't it i don't think it's a problem because i think with the for the situations where the victims have few payments that have been made to go to their costs i think the district court is recognizing the burden that has been placed on them and the fact that so little has gone to contribute and then holding this defendant accountable cordingley i do think for the cases like vickie like amy the cases that have been a lot around longer with the district court is recognizing is that many other courts have found these amounts reasonable and for that reason the district court believes that these amounts are reasonable so i do think that it goes both ways he is using the number in different ways but ways that i think all but here's the thing so the average restitution ordered for amy is three thousand eight hundred ninety one dollars right but he awards twenty three thousand dollars and she's got one image and there are two hundred fifteen defendants so i m d i just don't understand if what he was doing was saying well all these other courts have ordered this amount how does he get from thirty eight ninety one to twenty three thousand in might be perfectly appropriate i mean it may well be i just don't know how he got there so how do i review that well again i think for amy in that case he weighed the factors in a different way right so he didn't put the emphasis on the number of images instead he specifically quoted the victim's statement which is a powerful victim's statement about the constant fear that this particular individual feels as a result of knowing that her images are being trafficked he also pointed in the situation amy to the fact that over two hundred criminal defendants have paid restitution at that point and the fact and again based on her victim employment impact statement that there are several psych reports they are and the therapy costs are estimated at over a half million you had several psych reports and i agree it was a stronger victim impact five hundred divided about two hundred do they have to do that you know and i guess yes ok that's ok that's not actually my point my question is i think there are a lot of different things he could have done and he could have used a different method for for different victims depending on you know just explaining what it was he did i just don't know what he did hear it that's that's my concern and i'm asking you if you can tell me if you know what he did here i don't think yes to use a specific formula or go through his calculations specifically but i don't understand how he got to the number i don't understand why the award is twenty three thousand dollars when he says well lots of other courts have awarded restitution here so i think it's appropriate but the average restitution award in the other by the other courts is thirty eight ninety one that that's what i'm trying to figure out and he maybe there's something there i just i'm not seeing it so that's what i'm asking you how you know and i think that it it really goes back to the issue that this isn't supposed to be after caroline it wasn't supposed to be about averages it wasn't supposed to be about a mathematical formula it was left to the district court to weigh these factors outlined as this court did for each victim to go through the submissions and reach a reasonable conclusion based on those submissions so for amy for example the court went through its analysis it went through what factors it considered and how it reached this ultimate number i don't think the paralleling calls for specific allocation of funds one way or the other or you know subtracting as a result of one factor versus the other i think it is an overall framework for the district court in its discretion to work within and i think that's what the district court is you know is it ok then for the district court just to say these are the paralyzing factors i've considered all of them and this is my restitution towards reach person i think there certainly has to be analysis and think there was analysis here i think in addition to laying out what the paradigm factors did which judge thought i'm sorry just to be clear and the government's position is that would not be enough that would not be enough ok there doesn't have to be an analysis made of those factors and i think what judge locke did here was analyze those factors he went through each of the factors he went through each of the submissions and he pointed to the parts that he believed substantiated what he found to be a reasonable amount of restitution for each i think what's important to point out here is that caroline really as i discussed came up with a framework for district courts to work with and to use their sound judgment to use their discretion and throughout para line the court makes clear over and over again that what it doesn't want is a rigid formula what it doesn't want is a strict framework it doesn't want to take the power out of the district court's hands and put it into this strict algorithm instead it wants the district court to do exactly what the judge did in this case which is to weigh the various factors and come to a reasonable conclusion the appellant cite two cases out of the ninth circuit and the tenth circuit that have you know imposed the strict desegregation at the outset say that that desegregation calculation just simply is not reflected in parallel and neither in the language other simply see it seizing on a parent article that states that you know the desegregation may be difficult but that's something they don't want to deal with at that time i don't buy those circuits even do a strike when i'm looking at dunn i just read it he says look at dunn tenth look at gala night and i'm reading them right now i'm reading done it was vicki vicki is a series that we've all seen and the district court and vicki or awarded in the tenth circuit five hundred eighty three thousand nine hundred fifty five for two images and said the possesses role was very minor and to all the ten is too much you've got to have a more reasonable of valuation and you've got to desegregate and there the request was five hundred eighty three thousand the full amount and that's what the court awarded so if you read the ten yes exactly in fact the tenth says we recognize that the ultimate decision will be a mix of discretion and estimation that's what we have here yes and don actually the court even acknowledge have i got the right cases when you grow a vote that's correct as yeah ok so growers the ninth and they have the same thing the same problem there was no effort at all to desegregate yes and in this case what the court did was actually at the outside of the order he states that he's not holding this defendant accountable either for the initial abuse or for the reproduction or distribution of the images in the harms that's flowed there from from he is simply holding him accountable to the proximate cause the harm as a result of the defendant's possession of these images that's basically desegregation i mean in my view desegregation is finding the proximate harm that this particular defendant is responsible for right as exact as opposed to charging him for the entire amount of the victim's home yes exactly and i do think that what judge toler raises is a good point because in done what the court had done was actually imposed the total amount against that one defendant so we know in that case that the court had the district court had an engaged in any desegregation and i think for rovio as well in that case the district court had imposed an amount actually after using the one over end method and it of imposed the exact amount after doing that calculation which of course didn't allow from desegregation either i also do think that one point with regards to grow and golan which is worth pointing out is the courts have really had a difficulty in actually meeting the standard laid out in those cases and not in in the briefs that this level actually these cases weren't cited but in the defendant's admissions at the district court level he cited to a case chan which was out of the district apply and there was a chase kluger that was out of the district of montana and in both of those cases the district court is grappling with how to apply this standard that came out after golan and grove if you interpret it in the sense of the strict desegregation and both district courts talk about the monumental difficulty in actually applying that standard and that they essentially now have to meet this strict desegregation theory before going forward and actually reaching the paralyzing factors and as a result both district courts didn't order any restitution and i don't think that that's in line with what the spirit apparently is what parallel and wanted to do was allow a pathway for restitution for mutable that is that allows victims to get restitution when they can make these preliminary findings and and in part that's because the congressional intent behind the status statue was to allow for cause for restitution for these particular defendants when it when these preliminary findings can be made assuming that the district court does this balancing test which judge locke did at the district court level here so if the court has no further questions we would ask that you affirm the district court's restitution order counsel i got done right they gave up five hundred eighty three thousand so the vicky victim had to court reversed that award because it was based on joint several liability but if you keep reading the opinion the last two paragraphs say t defendant also argues that the district court used the wrong starting point because it did not just aggregate the losses and the tenth circuit says that's right on re mans you cannot use a starting point that doesn't just aggregate to the harm from the initial abuser it's sa that we don't think caroline expressed the resolve that issue but it's that's mandated by the clear rationale of the opinion and we think the ninth circuit's went even further and said that is actually required by para line and if i could i'd really like to emphasize three pages of the paralyzed opinion where i think it is required page four forty nine the first full paragraph of part three of the opinion it's not just apparent that ickle statement that says complications may arise it's the sentence that's before and after that that parent that ickle statement were defines general losses throughout the entire opinion entire law also on all the trafficking defendants you've got to say all right i'm not going to consider the losses calls but initial abuse which is what the district court did it in your honor we respectfully submit that the district court cannot do that just by saying it it has to have a basis for and the record to know that in that basis you're talking about is a precise mathematical formula no it's not it's a rough approximation of the amount of hard out there isn't even the rough approximation there has to be evidence that the government submit what kind of evidence an expert report from the victim so you know your position parallel requires an expert report and every single statute along with  and are the statute require an expert report in every single case we don't yes because we don't see how else the i don't know what you said earlier that if the victim herself said half of my suffering has been because the initial abuse and half of it because of my knowledge of the images are being trafficked i thought you said that would be enough but there also has to be a last calculation there has to be a last i'm asking you if the course there also has to be an expert report that provides the total losses of the victim from which you could then just aggregate sometimes less and less you had for example receipts for therapy and things of that nature you might not need an expert sure that's possible as well the way these cases have been working though is that the victims have retained experts at the and they prepare a basically a you know an expert report that applies that the victims then submit in all of these cases that the same reports that are submitted throughout in every case so it's not this burdensome process that they have to undergo for every single case they have these already prepared and all we're asking is for the government to go back and say and to contact these experts and say there's one more thing we need you to tell us which is give us a rough rough approximation that's all we're saying because the downside if you don't do that and you see what we have here we have substantially above average restitution towards the genny award we think is clearly has to be vacated because there's no evidence one way substantially above what average the record evidence in this case the government submitted charts of prior restitution awards and averages amounts for those victims and for example i think the one judge rosenbaum was talking about was just amy the average is thirty eight hundred dollars and in this case i won right and in this case the victim receives twenty three thousand dollars even though mr rothenberg possessed a single image i understand so now the judge has to award a restitution order that reflects thousand dollars that would be a lot better than what happened here where the ask me whether it would be better is that sufficient to pass your standards are not i think that would be a lot closer to proper i don't care if it's closer i'm asking you if that would be adequate the judge says i considered all that i think those judges are way off the mark they're wrong i'm right i'm imposing more yes i think that would be fine that would be an exercise of his discretion but in this case he's not  isn't that implicit in him making the award no in this case there's no evidence or no statement in his order to reflect that he's even consider the amount of there's no thought he said considered the factors that caroline requires me to consider he went through for each victim various factors imperiling bob he said i have required i have considered the required factors and i'm wrong about that i don't know if he says i believe so but he doesn't today then he says there is evidence that he considered that's all we require sentencing judges to do i'm required to thirty five fifty three i considered the thirty five fifty three factors and based on it here's my sense in of restitution you know we district courts by necessity exercise discretion in fashioning the orders and here's here's the deal we don't require district judges in sentencing to say now this is the white not attributed to the criminal history and this is the white tributed to this particular nature of the crime and this is the white tribune did to determining whether or not this sentence would deter future crimes we just let us know that you considered the factors refer to them and come up with your own reasoned judgment and that's good we agree your honor that there is ample room for discretion here when considering the p factors our primary argument though has to do with step before those factors which is the starting point of the in alice is paralyzed and uses repeatedly throughout the opinion and that reflects a disk aggregate last figure that does not but we're talking about what the judge has to say to satisfy you and us that the judge has considered the paralyzing factors isn't that what it boils down to no question no oh really no no i'm sorry your honor they can consider them but he doesn't have to tell us then no no no we're saying is that before you even get to the factors that there has to be a right starting point and that is a disk aggregated loss no you understood you to say that discretion about desegregation and that's your yes your honor that is our position and that of the position we believe the ninth and tenth circuits have adopted and that's what we believe caroline contemplates and that's what we believe the statute requires in thirty six sixty forty so for that reason we ask the court vacate the restitution awards in this case and particularly jenny where there is no evidence of loss at all they just relied on a twenty five thousand dollar figure from a senate bill that never has nothing to do with jenny's loss it has nothing to do with mr rothenberg so that award at the very least we believe