F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

C E C I L I O G A L

A N , Defendant-Appellant

. No. 14-30145

D.C. No. 6:11-cr-60148- AA-1

OPI NI O N

A ppeal from the United States District Court for the District of Oreg on Ann L . Aiken, Chief District J u dg e, Presiding

Arg ued and Submitted October 15, 2015—Portland, Oreg on

F iled November 4, 2015

B efore: F erdinand F . F ernandez
, A. W allace Tashima,

and Carols T. B ea, Circuit J udg es.

Opinion by

J udg e F e rnandezU N I T E D S T A T E S V

. G A L A N 2

SUMMARY *

Crim inal Law

Vacating a restitution order and remanding
, the panel h eld that in calculating the am o u n t o f restitution to be imposed
upon a defendan t w ho was convicted of distribution o r possession of child pornog raphy
, the l o s s e s, including

o n go ing losses, caused by the o rig inal abuse of the vic t i m should be disag g reg ated from the losses ca u s ed by the
ong oing distribution and possession of imag es of that orig inal abuse, to the ex tent possible.

The panel held that the di s t r i c t court erred when it declined t o limit the restitution imposed upon the defendant in that manner.

COUNSEL

B ry an E. L essley (arg ued), A ssistant F ederal Public Defender, F ederal Public Defender’s Office, E u g e n e , Oreg on, for the Appellant.

Amy E. Potter (arg

ued), Assistant United States Attorney ; S. Amanda M arshall, U nited States Attorney ; Kelly A

. Z u sma n , Appellate Chief; United States Attorney ’s Office, Eug ene, Oreg on, for the Appellee.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. G A L A N 3

OP INION

F ERNANDEZ , Circuit J udg e:

Cecilio G alan appeals the district court’s restitution order, which was e n t e red ag a inst him after his conviction a nd
sentence for distribution of child pornog raphy 1 a nd possessio n of c hild p o rnog raphy

. 2 See 18 U .S.C. § 2259(a). Specifically
, he asserts that t h e district court erred when it failed to d i sag g r eg ate losses caused to Cindy 3 due to the crimes perpetrated ag ainst h e r by the o rig inal abuser 4 a nd those caused to her by others who possessed or d i s t ributed imag es o f the abuse w hich were made by the orig inal abuser. W e ag r ee and vacate the restitution order and remand.

B ACKGROUND

Galan was not the orig inal abuser o f Cindy . That abuser perpetrated and made imag es of his disg usting crimes ag ainst Cindy over a

n ex tended period. However
, t hose activities ended about eleven y ears before Galan committed the crimes for w hich he w as convicted. The g overnment soug ht restitution for the losses caused to Cindy a s a result o f Galan’s crimes. See id. § 2 2 5 9 ( a )
, (b)(3). Those included future lost earning s, medical ex penses incurred after the date of the earliest crimes for which Gal a n was convicted

1 S ee 1 8 U.S.C. § 2 2 5 2 (a)(2 ).

2 S ee id

. § 2 2 5 2 A (a)(5 )(B ).

3 T h e v ictim u ses th e p seu d o n y m “ Cin d y ” f

o r p u rp o ses o f th is litig atio n

.

4 B y “ o rig in al ab u ser” w e m ean a p erso n w h o in f licted (o r p articip ated in th e in f l ictio n o f ) th e actu al p h

y sical ab u se.U N I T E D S T A T E S V

. G A L A N 4

(September 7
, 201 1 )
, vocational rehabilitation, and the cost of an economic report. Galan c ontested the go v e r n ment’s calculations on t h e b a sis that no attempt was made to disag g reg ate the losses resulting from the orig inal abuse from the losses resulting from Galan’s own activities.

The district court ag reed with the g o vernment, 5 a n d this appeal followed.

J U RI SDI CTI ON AND STANDARD OF REVI EW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231; we have jurisdiction pursuant to 28 U.S.C. § 1291.

“W e review de novo the leg ality of a restitution order and, if the order is within the statutory bound s , we review the
amount of restitution for abuse o f discretion. W e r eview for clear error factual finding s supporting an order of restitution.” United States v. Peterson
, 538 F .3d 106 4
, 1074 (9th Cir. 2008) (citation omitted); see also United S t a tes v. Hinkson
, 585 F .3d 1247, 1261–62 (9th Cir. 2009) (en banc).

D I SCUSSI ON

There can be no doubt that restit u t i o n is mandatory 6 for the “ f u l l a mount of [ Cindy ’s] losses,” 7 which were incurred

5 T h e district co u rt d eclared th at “ u n til th e Nin th Circu it o r th e S u p rem e Co u rt m an d ates th e ‘ d isag g reg atio n ’ o f h arm an d/o r lo sses cau sed b y th e

u n d erly in g s ex u al ab u se o f ch ild po rn o g rap h y v ictim s, I w ill n o t req u ire th e g o v ern m en t to d o so w h en seek in g restitu t io n .”

6 1 8 U.S.C. § 2 25 9 (b )(4 ).

7 Id

. § 2 25 9 (b )(1 ).U N I T E D S T A T E S V

. G A L A N 5

“as a prox imate result o f [ Galan’s] offense[ s]

. ” 8 Galan does
not dispute that. Nor does Galan claim that the categ ories o f losses used by the g ov e r n m e n t and the district court were improper. Similarly
, he does n ot d ispute that Cindy suffered

some losses as a result o f his c r i m es , 9 or that he must pay

some restitution on account o f those losses. The g overnment does not dispute that it has the burden of proving the amount of Cindy ’s losses that resulted from Galan’s crimes. 1 0 The question on which the parties join issue is whether it is proper to make the r estitution calcu l a tion without ex cluding the
ong oing losses to Cindy due to the actions of t h e orig inal abuser.

W h ile C o ng ress could and should have made d e termination of the amount to w hich a victim is entit l e d a simple matter, it reg rettably did not. S ee, e.g. , Paroline
,

__ U.S. at

_ _, 134 S. Ct. at 1 732–33 (Roberts, C.J
., dissenting );

8 Id

. § 2 25 9 (b )(3 )(F).

9 He h ard ly co u ld

. A s th e S up r e m e Co u rt h as p o in ted o u t: “ It is

co m m o n g ro u n d t h at t

h e v ictim su f

f ers co n tin u i n g an d g riev ou s h arm as

a resu l t o f h er k

n o w led g e th at a larg e, in d eterm in ate n u m b er o f in d iv id u als h av e v i ew ed an d w ill in th e f u tu re v iew im ag es o f th e sex u al ab u se sh e

en d u red .” Pa ro lin e v. Un ited S ta tes ,

_ _ U.S.

_ _ ,

_ _ , 1 34 S. Ct. 1 7 1 0
, 1 7 2 6
, 1 8 8 L

. Ed

. 2 d 71 4 (2 0 1 4 ). Mo reo v er, “[ t ] h e u n law f u l co n du ct of

ev e r y o n e w

h o rep ro d u ces, d istrib u tes, o r p ossesses th e im ag es o f th e

v ictim ’ s ab u s e

. . . p lay s a p art in su stain in g an d ag g rav atin g th is trag ed y

. A n d th ere can b e n o d o u

b t Co n g ress w an ted v ictim s to receiv e restitu tio n f o r h arm s lik e th is.” Id

.

10 It h ard ly co u ld

. T h e ord er o f restitu tio n “ sh all b e issu ed an d en f orced in acco rd an ce w ith sectio n 3 6 6 4 .” 1 8 U.S.C. § 2 2 5 9 (b )(2 ). T h u s: “ T h e b u r d en o f d em on stratin g th e am ou n t o f th e lo ss su stain ed b y a v i c t i m a s

a resu lt o f th e o f

f en se sh all b e o n th e atto rn ey f o r th e Go v ern m en t.” 1 8 U.S.C. § 3 6 6 4 (e); see a lso Pa ro lin e , _ _ U.S. at _

_ , 1 3 4 S. Ct. at 1 7 1 9

.U N I T E D S T A T E S V

. G A L A N 6

United S t a t e s v. Kennedy
, 6 43 F .3d 1251, 1266 (9th Cir. 2011). However, the Supreme Court has answered the question before us. I n Paroline
, __ U.S. at __, 134 S. Ct. at 17 2 2, it held: “Restitution is therefore proper under § 2259 only to the ex tent the defendant’s offense prox imately c aused a victim’s losses.”

As the Court demonstrated, the phrase “prox imate cause” hides (or e n compasses) interpretive problems of its own. That is to say , while, in g eneral, it is easy enoug h to say

that

a victim’s loss es from the ong oing possession a nd distribution of imag e s a r e direct and foreseeable results o f those activities, 1 1 that does n ot m e a n that all of the ong oing l o s s e s the victim suffers w ere in fact caused by those ve r y activities. 1 2

The Court went on to discuss and describe the my riad o f problems involved in deciding what proportion o f the losses caused by trafficking should be ascribe d t o a possessor o r distributor of child pornog r aphy involving a particular victim. See id. at __, 134 S. Ct. at 1 722

– 2 8

. T h e number o f
possessors a

nd distributors c an, of course, run i n t o the thousands. See id. at __, 134 S. Ct. at 1723.

However, the Court did note a difference b etween orig inal abusers and t h o s e w h o e ng ag e in distribution. As it said at the outset of its causation analy sis: “Complications may arise in disag g reg ating losses sustained a s a result of th e i n i tial phy sical abus e, but those q uestions may be set aside for present purposes.” Id. a t __, 1 34 S. Ct. at 1722. L i ke the

11 Id

. at _

_ , 1 34 S. Ct. at 1 7 2 2.

12 Id

.U N I T E D S T A T E S V

. G A L A N 7

c a s e a t hand, the c ase before the Court was not a g ainst a n orig inal abuser. Nevertheless, the Court mentioned the complications that mig ht arise in disag g reg ating the losses caused by the orig inal a b u s er from those c aused by others who later possess or distribute imag es. I f losses caused b y the latter were not to be separated from those cause d b y the ori gi n a l abuser, there would be n o c omplications because there would be no need to disag g r eg ate. Thus, the Court plainly perceived a need f or separation. I n fact, the Court
ag ain recog niz ed the distinction b etween orig inal abusers on the one h and, and distributors and possessors on the other, when it declared that one factor a district court could consider in determining what p roportion o f the distribution losses would fall upon an individual distributor or p o s s e ssor was whether “ the defendant h a d a n y connection to the initial production of the imag es.” Id. at __, 134 S. Ct. at 1 728. That underscores the fact that an orig inal abuser is responsible for harms caused by his actions, including ong oin g harms; distributors and possessors of imag es of those actions commit separate wrong s with separate, albeit awful, harmful
consequences of their o w n. Moreover, it is log ical to separate the two. I f an orig inal abu s e r h a d stay ed in his o wn clandestine and sick little world, a terrible trauma would have been inflicted upon the victim, a nd the a buser would have to atone for all of the consequences of that wrong doing

. W h en distribution of imag es is added, an orig inal abuser (or another person) would commit and put in motion a whole different set of abuses. Those w ho later pa r ticipate in distribution o r possession, es p e c i ally at a more remote time, are part of a distribution c ri m e , but not of the phy sical-abuse crime. Galan’s offenses were those o f a later participant; he h ad nothing to do with the orig inal abuse.U N I T E D S T A T E S V

. G A L A N 8

Thus, t he principles set forth by the Court lead to the conclusion that Galan should not be r equired to pay for losses caused by the orig inal abuser’s actions. As the T enth Circuit Court of Appeals held:

W e think it inconsistent wit h “ the bedrock
pr inciple that restitution should reflect the
consequences o f t h e d efendant’s own

c o nduct” to hold [a defendant] a ccountable fo r those harms initially caused by [ the victim’s]

a b u s e r

. Thus, to the e x tent that the distric t court relied o n an ex pert r eport that did not d i sag g reg ate these harms, the d istrict court’ s

a d option of $1.3 million as the total meas u r e of damag es cannot stand.

United States v. Dunn
, 7 77 F .3d 1 1 7 1
, 1 181–82 ( 10th Cir. 2015) (citation omitted); see also U nited Sta t e s v. R o gers , 758 F .3d 37, 39–40 (1st Cir. 2014) (per curiam).

W e ex pr ess no opinion about what portion of a victim’s
ong oing loss should be attributable to a n orig inal abuser. No doubt that will vary from case to case depending on m a n y factors, for e x ample: eg reg iousness of the orig inal abuse; h ow

a v ictim can (or does) cope with that kind of abuse when distribution of imag es does not fo l l o w; and the particular victim’s own reactions to the v a r i o u s traumas to w hich the victim has been subjected. Of course, in the case at hand, the record does not focus on that apportionment q ues t i o n. W e leave the a

ppropriate development of the record in that reg ard
to the parties and the district court. We have no illusion that the task will be easy , but it does n ot appear a ny more i mpossible than the other tasks imposed upon courts attempting to apportion restitution amounts in this area. I f theU N I T E D S T A T E S V

. G A L A N 9

ultimate apportio n m ent is not scientifically precise, we can only say that precision is neither ex pected nor required. See Paroline
, __ U.S. at __, 134 S. Ct. a t 1728–29. W e r ecog niz e that the ultimate decision w ill be a mix of “discretion a nd

e s timation,” 1 3 and that it may result in “complication a n d prolong ation of the sentencing process,” 1 4 but the courts (and the g overnment) cannot decline to make an effort to accomplish what Cong r ess and the Court have required.

CONCL USI ON

W e hold that in calculating the amount of restitution to be imposed upon a d efendant who w as convicted of distribution

or possession of child pornog r aph y , the losses, including
ong oing losses, caused by the orig inal abus e o f t he victim should be disag g reg ated fro m the losses caused by the
ong oing distribution and possession of imag es of that orig inal abuse, to the ex tent possible. The district court e rred w hen it declined to limit the restitution imposed upon Galan in that

manner.

However, we do a g ree that this a r ea, in which Cong ress has adopted a scheme that a t l east approaches the limits o f fair adjudication 1 5 despite attempts b y the courts to avoid

13 Id

. at _

_ , 1 34 S. Ct. at 1 7 2 9.

14 1 8 U.S.C. § 3 6 6 3 (a)(1 )(B )(ii).

15 S ee L o n L . Fu ller, Th e Fo rms a n d Limits o f Ad ju d ica t io n , 9 2 H A RV

. L

. R E V . 3 5 3 (1 97 8 ).U N I T E D S T A T E S V

. G A L A N 10

c a p r i c e, 1 6 cries o ut for a cong ressional solution. 1 7 I n the meantime, we must proceed with what we have in the manner that Cong ress and the Court have required.

R estitution order VACATED, a nd REMANDED for further proceeding s consistent with this opinion.

16 S ee Pa ro lin e ,

_

_ U.S. at _

_ , 1 3 4 S

. Ct. at 1 7 2 9 (“ co u rts can o n ly d o th eir b est”); cf

. i d. at 1 7 3 0 (Ro berts, C.J
., d issen tin g ) (“ it is n o t p o ssib le
to d o an y th i n g m o re th an

p ick an arb itrary

n u m b er”).

1 7 S ee id

. at

_ _ , 1 3 4 S. Ct. at 1 7 3 5 (Ro b erts, C.J ., d i ssen tin g ); id

. at _

_ , 1 3 4 S. Ct. at 1 7 4 4 (So to m ay o r, J
., d issen tin g ); Ken n ed y , 6 4 3 F.3 d at 1 2 6 6

.