10-3160-cr

United States v. Aumais

1 UNITED STATES COURT OF APPEALS

2

3 FOR THE SECOND CIRCUIT

4

5 August Term, 2010

6

7

8 (Argued: June 15, 2011 Decided: September 8, 2011)

9

10 Docket No. 10-3160-cr

11

12 - - - - - - - - - - - - - - - - - - - - -x

13

14 UNITED STATES OF AMERICA,

15

16 Appellee,

17

18 -v.-

19

20 GERALD AUMAIS,

21

22 Defendant-Appellant.

23

24 - - - - - - - - - - - - - - - - - - - - -x

25

26 Before: JACOBS, Chief Judge, WINTER and

27 McLAUGHLIN, Circuit Judges.

28

29 Defendant-Appellant Gerald Aumais appeals from an

30 Amended Judgment of Conviction entered on August 3, 2010 in

31 the United States District Court for the Northern District

32 of New York (Sharpe, J.). Aumais pleaded guilty to

33 transporting and possessing child pornography in violation

34 of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district

35 court sentenced Aumais to 121 months’ imprisonment and
2

1 ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in

2 restitution to finance future counseling costs of “Amy,” one

3 of the victims depicted in the images and videos. On

4 appeal, Aumais challenges the restitution order on the

5 ground that his possession was not a proximate cause of her

6 loss. Aumais also argues that the district court committed

7 procedural and substantive error in sentencing him to 121

8 months’ imprisonment. We conclude that: based on the facts

9 in this case, Aumais’ possession of Amy’s images was not a

10 substantial factor in causing her loss; and that the

11 district court committed no procedural or substantive error

12 in imposing the sentence of imprisonment. Affirmed in part

13 and reversed in part.

14 GENE V. PRIMOMO, Assistant Federal Public

15 Defender (Molly Corbett, on the brief), for

16 Lisa Peebles, Federal Public Defender, Albany,

17 New York, for Defendant-Appellant.

18

19 PAUL D. SILVER, Assistant United States

20 Attorney (Elizabeth Horsman, Assistant United

21 States Attorney, on the brief), for Richard S.

22 Hartunian, United States Attorney for the

23 Northern District of New York, for Appellee.

24 DENNIS JACOBS, Chief Judge:

25 Gerald Aumais (“Aumais”) appeals from an Amended

26 Judgment of Conviction entered on August 3, 2010 in the

27 United States District Court for the Northern District of
3

1 New York (Sharpe, J.). Aumais pleaded guilty to

2 transporting and possessing child pornography in violation

3 of 18 U.S.C. §§ 2252A(a)(1), and (a)(5)(B). The district

4 court sentenced Aumais to 121 months’ imprisonment and

5 ordered him, pursuant to 18 U.S.C. § 2259, to pay $48,483 in

6 restitution to finance future counseling costs of “Amy” (a

7 pseudonym), one of the victims depicted in the images and

8 videos. Aumais challenges the restitution order on the

9 ground that his possession was not a proximate cause of

10 Amy’s loss. Aumais also argues that the district court

11 committed procedural and substantive error in sentencing him

12 to 121 months’ imprisonment. We conclude that: based on the

13 facts in this case, Aumais’ possession of Amy’s images was

14 not a substantial factor in causing her loss; and that the

15 district court committed no procedural or substantive error

16 in imposing the sentence of imprisonment. Affirmed in part

17 and reversed in part.

18

19 Background

20 Aumais attempted to enter the United States from Canada

21 at the Fort Covington, New York Port of Entry in November

22 2008, where he was referred for secondary inspection. A
1 Aumais sought a two-level reduction, pursuant to

U.S.S.G. § 2G2.2(b)(1), on the ground that his conduct was

limited to the receipt or solicitation of child pornography. 

The PSR had scored an additional two levels based upon a

statement Aumais allegedly made at the time of his arrest

that he traded in child pornography. The district court

held a brief evidentiary hearing to resolve the factual

dispute. The Government called Immigration and Customs

Enforcement Officer Tim Losito, who testified that, at the

time of his arrest, Aumais stated that he traded in child

pornography. Based on this testimony and on the volume of

pornographic images in Aumais’ possession while he was

4

1 search of his car revealed a cache of DVDs and other

2 electronic devices that stored thousands of still images of

3 child pornography and over one hundred such videos. Aumais

4 told border agents that he owned all of the electronic media

5 located in the car and admitted to downloading the child

6 pornography from a peer-to-peer network.

7 He was charged with: (1) transporting child pornography

8 in foreign commerce, in violation of 18 U.S.C.

9 § 2252A(a)(1); and (2) possessing child pornography that had

10 been transported in foreign commerce, in violation of 18

11 U.S.C. § 2252A(a)(5)(B). On February 4, 2009, Aumais

12 entered a plea of guilty, without a written plea agreement,

13 to both counts of the indictment.

14 A.

15 Aumais’ Presentence Investigation Report (“PSR”)

reflected a base offense level of 22.1 16 The offense level
ostensibly on a one-week business trip, the district court

found that Aumais had traded in some materials and denied

Aumais’ request for a two-point reduction.

5

1 was increased two levels because some of the images were of

2 pre-pubescent minors, see U.S.S.G. § 2G2.2(b)(2); four

3 levels because the material contained sadistic images, see

4 U.S.S.G. § 2G2.2(b)(4); two levels because the offense

5 involved use of a computer, see U.S.S.G. § 2G2.2(b)(6); and

6 five levels based upon the number of images in Aumais’

7 possession, see U.S.S.G. § 2G2.2(b)(7)(D). Aumais’ offense

8 level was reduced three levels for his early acceptance of

9 responsibility, see U.S.S.G. § 3E1.1(a)-(b). With a total

10 offense level of thirty-two and a Criminal History Category

11 of I, the recommended Guidelines range was 121 to 151

12 months’ imprisonment. 

13 The PSR identified a victim known as “Amy,” who sought

14 $3.3 million in restitution pursuant to 18 U.S.C. § 2259. 

15 Her Victim Impact Statement explained that she was unable to

16 forget the abuse she suffered at the hands of the uncle (who

17 took the pictures) because the “disgusting images of what he

18 did to [her] are still out there on the internet.” She said

19 she lives in fear that she will be recognized in the

20 pictures that remain on the internet and will be “humiliated
6

1 all over again.”

2 The district court found that Aumais was a pedophile,

3 that he presented a danger to children (although the court

4 credited a polygraph result indicating that he had never

5 gone beyond viewing images), and that he was responsible for

6 harm caused to the children in the images. The district

7 court found that a sentence of 121-months’ imprisonment (the

8 low-end of the Guidelines range) was appropriate in view of

9 all the 18 U.S.C. § 3553(a) factors. Accordingly, the

10 district court imposed a sentence of 121 months’

11 imprisonment on Count 1 and 120-months’ imprisonment on

12 Count 2, to run concurrently, and a five-year term of

13 supervised release. The district court bifurcated the issue

14 of restitution and referred the matter to a magistrate judge

15 for consideration.

16 B.

17 On December 22, 2009, Magistrate Judge David Homer

18 conducted an evidentiary hearing on restitution. The only

19 witness to testify, Government witness Dr. Joyanna Silberg,

20 had evaluated Amy at the request of Amy’s attorney, James

21 Marsh, on June 11-12, 2008, July 29, 2008, and November 10,

22 2008. Dr. Silberg recounted that Amy had been sexually
7

1 abused by her uncle between the ages of 4 and about 7 or 8,

2 that Amy underwent treatment after suffering the abuse, and

3 that the treatment allowed Amy to “function[] pretty well

4 normally” until she learned that her image was being traded

5 on the internet, after which she experienced a fear “of

6 being at parties, fear of being in public gatherings,” and

7 had difficulty coping “with her life because of her sense of

8 pervasive helplessness” about the fact that people were

9 viewing her image. Government Appendix 30-31.

10 Amy discovered that her images were on the internet

11 when she received victim notifications from The National

12 Center for Missing and Exploited Children (“NCMEC”), which

13 compares images of child pornography, identifies those

14 depicted within, and then notifies the victim every time

15 someone is arrested who is found to possess that victim’s

16 image. Knowledge that her images were still being viewed

17 caused emotional and psychological problems: she bit her

18 nails to the point of bleeding, took to alcohol, and could

19 not finish college. Dr. Silberg concluded that Amy was a

20 direct victim of Aumais’ conduct and that “Mr. Aumais

21 represent[ed] one component of the damages, because Mr.

22 Aumais is one of the individuals arrested for having looked
8

1 at her picture and possessing it.” See Government Appendix

2 41-43.

3 Finally, although Dr. Silberg’s contact with Amy was

4 evaluative rather than therapeutic, she recommended that Amy

5 receive therapy once a week from a professional trained in

6 the effects of sexual abuse and trauma on people in Amy’s

7 age group. Dr. Silberg opined that Amy might need three

8 courses of inpatient treatment throughout her life to deal

9 with her alcoholism.

10 On January 13, 2010, the magistrate judge issued a

11 Report and Recommendation that Aumais should be ordered to

12 pay Amy $48,483 in restitution. United States v. Aumais,

13 No. 08-CR-711, 2010 WL 3033821, at *9 (N.D.N.Y. Jan. 13,

14 2010) (“Aumais I”). The court determined that in order to

15 recover restitution, Amy must show that Aumais’ possession

16 of her images proximately caused her harm. Id. at *2. If

17 so, Amy could be entitled to payments for future medical

18 costs “if those expenses can be reasonably estimated.” Id.

19 at *3 (citing United States v. Pearson, 570 F.3d 480, 486-87

20 (2d Cir. 2009) (per curiam)). The magistrate judge

21 observed, however, that the issue of “whether a defendant

22 convicted only as a consumer of child pornography may be
9

1 liable for restitution under § 2259 to a child victim”

2 remained “unaddressed by the Second Circuit.” Id.

3 According to the Report and Recommendation, “[t]here is

4 no question that consumers, such as Aumais, contribute to

5 the exploitation of child victims, such as Amy, depicted in

6 the child pornography they possess.” Id. at *4. The court

7 recognized that “the uncle’s horrific acts of sexual abuse,

8 production of the images, and distribution of those images

9 to others unquestionably constituted the principal cause of

10 the losses identified by Amy.” Id. at *5. At the same time

11 (it was concluded), “if the harm caused by Aumais’

12 possession of Amy’s images caused substantial harm to Amy,

13 proximate cause has been demonstrated even if the conduct of

14 others similar to that of Aumais caused equal or greater

15 harm.” Id.

16 Based on Amy’s Victim Impact Statement and Dr.

17 Silberg’s testimony, the magistrate judge found that,

18 although Amy had neither contact with Aumais nor knowledge

19 of his existence, his possession of her images exacerbated

20 the harm (originally caused by her uncle) by creating a

21 market for distribution, and by inflicting the humiliation

22 of knowing that the images are out there being exploited by
10

1 a group of consumers, of whom Aumais was one. Id. at *6. 

2 Although Aumais may be among hundreds or thousands of such

3 others, it was found that Amy’s harm was not thereby

4 obviated or diminished; rather, “it exacerbate[d] the harm

5 by confirming how expansive has become the number of

6 individuals exploiting Amy’s images.” Id.

7 The findings as to damages are thorough and

8 discriminating, as follows. Where “a party is responsible

9 for exacerbating a pre-existing condition, damages are

10 generally limited to that attributable to the exacerbation

11 and not the original injury.” Id. at *7. The Government

12 failed to prove by a preponderance of evidence that Aumais

13 proximately caused harm that resulted in Amy’s difficulties

14 maintaining employment. Id. But the Government did prove

15 by a preponderance of evidence that Aumais caused the need

16 for weekly counseling sessions in the next five years and

17 monthly counseling sessions for five years thereafter. Id.

18 at *8-9. Discounting future counseling costs to present

19 value, the magistrate judge found that the Government proved

20 by a preponderance of evidence that Amy is entitled to

21 $48,483. Id. at *9.

22 As to joint and several liability, the magistrate judge
11

1 found that Aumais should be liable for the full amount and

2 that it was “a matter for administration by the government”

3 to prevent excess recovery. Id.

4 The district court adopted Magistrate Judge Homer’s

5 Report and Recommendation, and entered judgment on August 3,

6 2010. United States v. Aumais, No. 08-CR-711, 2010 WL

7 3034730 (N.D.N.Y. Aug. 3, 2010) (“Aumais II”).

8

9 Discussion

10 “We review an order of restitution ‘deferentially, and

11 we will reverse only for abuse of discretion. To identify

12 such abuse, we must conclude that a challenged ruling rests

13 on an error of law, a clearly erroneous finding of fact, or

14 otherwise cannot be located within the range of permissible

15 decisions.’” Pearson, 570 F.3d at 486 (quoting United

16 States v. Boccagna, 450 F.3d 107, 113 (2d Cir. 2006)).

17 We review a district court’s sentencing decision for

18 reasonableness. See United States v. Booker, 543 U.S. 220,

19 260-62 (2005). We review the sentence for substantive

20 reasonableness under a “deferential abuse-of-discretion

21 standard.” United States v. Cavera, 550 F.3d 180, 189 (2d

22 Cir. 2008) (en banc). The Court “will not substitute [its]
2 In United States v. Pearson, we considered whether a

restitution order pursuant to 18 U.S.C. § 2259 may include

an amount for estimated future medical expenses; but the

defendant had produced child pornography and had had direct

contact with the two child victims. 570 F.3d at 482, 486-

87.

12

1 own judgment for the district court’s”; rather, a district

2 court’s sentence may be set aside “only in exceptional cases

3 where [its] decision cannot be located within the range of

4 permissible decisions.” Id. (internal quotation marks

5 omitted).

6

7 I.

8 As Magistrate Judge Homer observed, this Circuit has

9 yet to address the issue of “whether a defendant convicted

10 only as a consumer of child pornography may be liable for

restitution under [18 U.S.C.] § 2259 to a child victim.”2 11

12 Aumais I, 2010 WL 3033821, at *3.

13 Section 2259 mandates a district court to order a

14 defendant to pay a “victim,” defined as an “individual

15 harmed as a result of a commission of a crime under this

16 chapter,” 18 U.S.C. § 2259(c), “the full amount of the

17 victim’s losses,” id. § 2259(b)(1). The victim’s losses

18 include:

19 any costs incurred by the victim for--
13

1 (A) medical services relating to physical,

2 psychiatric, or psychological care; 

3

4 (B) physical and occupational therapy or

5 rehabilitation; 

6

7 (C) necessary transportation, temporary

8 housing, and child care expenses; 

9

10 (D) lost income; 

11

12 (E) attorneys’ fees, as well as other costs

13 incurred; and 

14

15 (F) any other losses suffered by the victim as

16 a proximate result of the offense.

17

18 Id. § 2259(b)(3)(A)-(F). “An order of restitution under

19 [§ 2259] shall be issued and enforced in accordance with

20 section 3664 in the same manner as an order under section

21 3663A.” Id. § 2259(b)(2). Under 18 U.S.C. § 3664(e),

22 “[t]he burden of demonstrating the amount of the loss

23 sustained by a victim as a result of the offense shall be on

24 . . . the Government.” So it was for the Government to

25 establish that Amy is a victim who was harmed as a result of

26 Aumais’ possession of her images.

27 A.

28 The United States Supreme Court has recognized that the

29 distribution of child pornography is “intrinsically related

30 to the sexual abuse of children” because, inter alia, “the

31 materials produced are a permanent record of the children’s
14

1 participation and the harm to the child is exacerbated by

2 their circulation.” New York v. Ferber, 458 U.S. 747, 759

3 (1982); see also United States v. McDaniel, 631 F.3d 1204,

4 1208 (11th Cir. 2011). “Because the child’s actions are

5 reduced to a recording, the pornography may haunt [the

6 child] in future years, long after the original misdeed took

7 place.” Ferber, 458 U.S. at 759 n.10 (internal quotation

8 marks omitted). 

9 We conclude that Amy is a victim as defined by

10 § 2259(c).

11 B.

12 A circuit split has opened as to whether the Government

13 must show that a victim’s losses (identified in 18 U.S.C.

14 § 2259(b)(3)(A)-(F)) were proximately caused by the

15 defendant’s actions, or whether it is enough to show

16 causation more generally. And within those circuits holding

17 that a showing of proximate cause is required, some rely on

18 the text of the statute and others on general rules of

19 criminal and tort law. 

20 Of the circuits that have reached the causation issue,

21 most have held that the text of § 2259 requires a showing of

22 proximate cause. See McDaniel, 631 F.3d at 1209; United
15

1 States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999); United

2 States v. Crandon, 173 F.3d 122, 125 (3d Cir. 1999). These

3 circuits have read the last phrase of § 2259(b)(3)(F) (see

4 supra at 13)--“suffered by the victim as a proximate result

5 of the offense”--to apply to all the types of loss in

6 § 2259(b)(3). As the court in McDaniel observed:

7 “When several words are followed by a clause

8 which is applicable as much to the first and other

9 words as to the last, the natural construction of

10 the language demands that the clause be read as

11 applicable to all.” Porto Rico Ry., Light & Power

12 Co. v. Mor, 253 U.S. 345, 348 (1920). The phrase

13 “as a proximate result of the offense” is equally

14 applicable to medical costs, lost income, and

15 attorneys’ fees as it is to “any other losses.” 

16 Because the language of the statute is plain, our

17 inquiry ends here.

18

19 631 F.3d at 1209 (internal citation omitted). The D.C.

20 Circuit, likewise holding that § 2259 requires a finding of

21 proximate cause, based its ruling on “traditional principles

22 of tort and criminal law and on § 2259(c)’s definition of

23 ‘victim’ as an individual harmed ‘as a result’ of the

24 defendant’s offense.” United States v. Monzel, 641 F.3d

25 528, 535 (D.C. Cir. 2011). After reciting the “bedrock rule

26 of both tort and criminal law that a defendant is only

27 liable for harms he proximately caused,” the court concluded

28 that “nothing in the text or structure of § 2259 leads us to
16

1 conclude that Congress intended to negate the ordinary

2 requirement of proximate cause.” Id. at 535-36 (footnote

3 omitted).

4 The only circuit to hold that a finding of proximate

5 cause is not required, the Fifth Circuit, read the phrase

6 “as a proximate result of the offense” in § 2259(b)(3)(F) to

7 apply only to that “catchall” provision, as opposed to all

8 of the loss provisions set forth in § 2259(b)(3):

9 The structure and language of § 2259(b)(3)

10 impose a proximate causation requirement only on

11 miscellaneous “other losses” for which a victim

12 seeks restitution. As a general proposition, it

13 makes sense that Congress would impose an

14 additional restriction on the catchall category of

15 “other losses” that does not apply to the defined

16 categories. By construction, Congress knew the

17 kinds of expenses necessary for restitution under

18 subsections A through E; equally definitionally,

19 it could not anticipate what victims would propose

20 under the open-ended subsection F.

21 In re Amy Unknown, 636 F.3d 190, 198 (5th Cir. 2011). The

22 Fifth Circuit also relied on the manifestation of a

23 “congressional purpose to award broad restitution” to

24 justify its limitation of proximate cause only to the loss

25 identified in subsection F. Id. at 199.

26 We agree with the majority of circuits and hold that

27 under § 2259, a victim’s losses must be proximately caused

28 by the defendant’s offense. We endorse the D.C. Circuit’s
17

1 reasoning in Monzel: proximate cause is a deeply rooted

2 principle in both tort and criminal law that Congress did

3 not abrogate when it drafted § 2259. See Monzel, 641 F.3d

4 at 535-36; United States v. U.S. Gypsum Co., 438 U.S. 422,

5 437 (1978) (“Congress [is] presumed to have legislated

6 against the background of our traditional legal concepts

7 which render [proximate cause] a critical factor, and

8 absence of contrary direction” here “[is] taken as

9 satisfaction [of] widely accepted definitions, not as a

10 departure from them.” (quoting Morissette v. United States,

11 342 U.S. 246, 263 (1952)) (internal quotation marks

12 omitted)); see also Hemi Group, LLC v. City of New York, ---

13 U.S. ---, 130 S. Ct. 983, 989 (2010) (“[P]roximate cause

14 thus requires ‘some direct relation between the injury

15 asserted and the injurious conduct alleged.’” (quoting

16 Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268

17 (1992))). The text of § 2259 cross-references the Victim

18 and Witness Protection Act of 1982, 18 U.S.C. §§ 1512–1515,

19 3663–3664, and the Mandatory Victims Restitution Act of 1996

20 (“MVRA”), 18 U.S.C. §§ 3663A, 3613A, both of which define

21 “victim” as “a person directly and proximately harmed as a

22 result of the commission of an offense for which restitution
18

1 may be ordered,” §§ 3663(a)(2), 3663A(a)(2).

2 “Proximate cause” labels “generically the judicial

3 tools used to limit a person’s responsibility for the

4 consequences of that person’s own acts. At bottom, the

5 notion of proximate cause reflects ‘ideas of what justice

6 demands, or of what is administratively possible and

7 convenient.’” Holmes, 503 U.S. at 268 (quoting W. Keeton,

8 D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of

9 Torts § 41, at 264 (5th ed. 1984)). Proximate cause demands

10 “some direct relation between the injury asserted and the

11 injurious conduct alleged.” Id.

12 The magistrate judge based his finding of proximate

13 cause on the following facts, taken from Amy’s Victim Impact

14 Statement and Dr. Silberg’s testimony: Amy “suffered

15 understandable trauma from the abuse of her uncle . . . [and

16 t]he fact that the images of that abuse exist and remain in

17 circulation exacerbates the harm”; the viewers of Amy’s

18 images contribute to the “humiliation and degradation” that

19 Amy suffers and “constitute an independent component of harm

20 which exacerbates the trauma initiated by the uncle and

21 generates a need for continuing therapy”; Amy’s abuse was

22 memorialized in pictures that continue to be circulated, so
19

1 that she “can never regard [her] victimization as terminated

2 or as a past event to which [she] must adjust”; and Aumais’

3 viewing of Amy’s images “leaves Amy and similar victims with

4 feelings that they will never be safe, of helplessness, and

5 of constant fear that they will be recognized from those

6 images by friends and strangers.” Aumais I, 2010 WL

7 3033821, at *6. Moreover, the magistrate judge found that

8 “even though there may be hundreds or thousands of others

9 who, like Aumais, have possessed and used Amy’s images and

10 thereby contributed to her harm, Aumais’ conduct remains a

11 substantial cause of that harm” because it “exacerbates the

12 harm by confirming how expansive has become the number of

13 individuals exploiting Amy’s images.” Id.

14 We review a district court’s findings of fact for clear

15 error, but we review de novo a “district court’s application

16 of th[e] facts to draw conclusions of law, including a

17 finding of liability.” Travellers Int’l, A.G. v. Trans

18 World Airlines, 41 F.3d 1570, 1575 (2d Cir. 1994). So

19 called mixed questions of law and fact are also reviewed de

20 novo. Id. While the magistrate judge’s findings of fact

21 are supported by evidence, we disagree that those facts

22 establish a causal connection between Aumais’ possession of
20

1 Amy’s images and Amy’s losses.

2 The magistrate judge found that “Amy had no direct

3 contact with Aumais nor even knew of his existence.” Aumais

4 I, 2010 WL 3033821, at *6. Amy’s Victim Impact Statement

5 makes no mention of Aumais (or any other possessor of her

6 images for that matter). Moreover, Dr. Silberg’s evaluation

7 of Amy, upon which the doctor’s testimony was based, took

8 place on June 11-12, 2008, July 29, 2008, and November 10,

9 2008, whereas Aumais was not arrested at the border until

10 November 16, 2008. While Dr. Silberg may describe generally

11 what Amy suffers from knowing that people possess her

12 images, Dr. Silberg cannot speak to the impact on Amy caused

13 by this defendant. As the Ninth Circuit held in rejecting

14 another of Amy’s claims:

15 [T]he government’s evidence showed only that [the

16 defendant] participated in the audience of persons

17 who viewed the images of Amy . . . . While this

18 may be sufficient to establish that [the

19 defendant’s] actions were one cause of the

20 generalized harm Amy . . . suffered due to the

21 circulation of [her] images on the internet, it is

22 not sufficient to show that they were a proximate

23 cause of any particular losses.

24 United States v. Kennedy, 643 F.3d 1251, 1264 (9th Cir.

25 2011). Here, in the absence of evidence linking Aumais’

26 possession to any loss suffered by Amy, we cannot agree with
3 We note one additional issue (on top of the issues

discussed in this section). In Aumais II, 2010 WL 3034730,

21

1 the magistrate judge’s conclusion that “Aumais’ conduct

2 remains a substantial cause of [Amy’s] harm.” Aumais I,

3 2010 WL 3033821, at *6.

4 This opinion does not categorically foreclose payment

5 of restitution to victims of child pornography from a

6 defendant who possesses their pornographic images. We have

7 no basis for rejecting Dr. Silberg’s findings that Amy has

8 suffered greatly and will require counseling well into the

9 future. But where the Victim Impact Statement and the

10 psychological evaluation were drafted before the defendant

11 was even arrested--or might as well have been--we hold as a

12 matter of law that the victim’s loss was not proximately

13 caused by a defendant’s possession of the victim’s image.

14 C.

15 A proximate cause of injury can be expected to lend

16 itself more easily to assessment and allocation than a cause

17 that is generalized or inchoate. Our conclusion--that

18 Aumais’ conduct was not a proximate cause of Amy’s injury--

19 is thus confirmed by the baffling and intractable issue that

20 this case would otherwise present in terms of damages and

joint and several liability.3 21
at *1, the district court adopted the magistrate judge’s

Report and Recommendation and ordered that an Amended

Judgment be issued. However, in the Amended Judgment, the

district court did not check the box indicating that Aumais’

liability was joint and several with other defendants. See

Government Appendix 64-65. While it is settled that “where

there is a direct conflict between an unambiguous oral

pronouncement of sentence and the written judgment . . . the

oral pronouncement, as correctly reported, must control,”

United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974)

(internal quotation marks omitted), it is unclear whether

this is true with respect to restitution orders. 

22

1 With respect to the amount of restitution, the district

2 court ordered Aumais to pay $48,483 to cover Amy’s future

3 counseling costs. Aumais I, 2010 WL 3033821, at *8-9. But,

4 as the magistrate judge determined, “[t]he harm from the

5 uncle’s abuse and that from possession of the images of the

6 abuse by others are closely related for purposes of

7 counseling and cannot be separate[d] to allocate costs

8 between them as it appears that Amy will require counseling

9 for both.” Id. at *8. If Amy’s future counseling costs are

10 thus partly caused by her uncle’s abuse, then Aumais cannot

11 be responsible for all of those losses--a problem under the

12 wording of § 2259, which mandates that Aumais make

13 restitution for the full amount of Amy’s losses caused as a

14 result of Aumais’ possession. This difficulty is

15 illustrated by the disparate amounts of restitution ordered

16 throughout the country, ranging from $3,000, see United
4 In Nucci, we observed

Section 3664(f)(1)(A) requires the district court

to order restitution in the full amount of the

victim’s losses and does not mention what the

order should provide when multiple defendants are

responsible for the same loss. Section 3664(h)

provides that, where there are multiple

defendants, the district court may order each

defendant to pay the full amount or order that

23

1 States v. Mather, 1:09-CR-412, 2010 WL 5173029, at *5-6

2 (E.D. Cal. Dec. 13, 2010), to $3,680,153, see United States

3 v. Staples, 09-14017-CR, 2009 WL 2827204, at *1 (S.D. Fla.

4 Sept. 2, 2009).

5 A restitution award to Amy in this case would raise

6 issues as to joint and several liability. As of the date of

7 the restitution hearing, Amy had sought restitution in over

8 250 cases around the country. Aumais I, 2010 WL 3033821, at

9 *5. In one such case, United States v. Faxon, 689 F. Supp.

10 2d 1344, 1346, 1353 (S.D. Fla. 2010), Amy’s lawyer estimated

11 that as of January 2010, Amy had received approximately

12 $170,000 from restitution orders and settlements.

13 In United States v. Nucci, 364 F.3d 419 (2d Cir. 2004),

14 we held that a victim may not recover more than his or her

15 actual loss. There, we observed that “the relevant sections

16 of the MVRA,” id. at 423, do not in themselves prevent

double-recovery in the criminal context.4 17 However,
liability be apportioned to reflect each

defendant’s contribution to the loss. Section

3664(j)(2) does limit restitution that would

result in an overpayment to the victim, but only

where compensatory damages are later recovered by

the victim in a “civil” proceeding.

Id. (footnote omitted).

24

1 recognizing that “[a]t common law, joint and several

2 liability does not permit double recovery,” we declined to

3 “read[] the statute to provide recovery in excess of the

4 amount of the loss,” and accordingly applied the common law

5 rule. Id. 

6 Section 2259(b)(4)(B) provides that “[a] court may not

7 decline to issue an order under this section because of--(i)

8 the economic circumstances of the defendant; or (ii) the

9 fact that a victim has, or is entitled to, receive

10 compensation for his or her injuries from the proceeds of

11 insurance or any other source.” Our holding in Nucci

12 indicates that because Amy may already have been fully

13 compensated by others for the loss found in this case, there

14 would be “no legal basis to permit an award that allows a

15 victim to recover more than his due.” Nucci, 364 F.3d at

16 424. It is in any event likely that the collection of a

17 restitution award would need to be carefully monitored to

18 ensure that total payments by all defendants did not exceed
5 In fact, two other circuits have observed, in

unpublished opinions, that joint and several liability is

not permissible under § 3664(h) regarding defendants in

separate cases. See Monzel, 641 F.3d at 539 (citing United

States v. McGlown, 380 F. App’x 487, 490-91 (6th Cir. 2010);

United States v. Channita, 9 F. App’x 274, 274-75 (4th Cir.

25

1 what Amy has been awarded for future counseling costs. The

2 need for such monitoring would pose significant practical

3 difficulties. As an initial matter, it is not entirely

4 clear what government body, if any, is responsible for

5 tracking payments that may involve defendants in numerous

6 jurisdictions across the country. In addition, determining

7 what amount Amy has received would entail collecting data

8 about hundreds of cases, ascertaining what money has

9 actually been paid, and determining what losses that money

10 was intended to cover.

11 Finally, as discussed above, § 2259(b)(2)--dealing with

12 the enforcement of the restitution order--cross references

13 § 3664. Section 3664(h) implies that joint and several

14 liability may be imposed only when a single district judge

15 is dealing with multiple defendants in a single case (or

16 indictment); so it would seem that the law does not

17 contemplate apportionment of liability among defendants in

18 different cases, before different judges, in different

jurisdictions around the country.5 19
2001)).

26

1

2 II.

3 Aumais argues that the district court committed

4 procedural and substantive errors in sentencing Aumais to

5 121 months’ imprisonment--the bottom of the Guidelines

6 range. As to procedural reasonableness, Aumais contends

7 that the district court treated the Sentencing Guidelines as

8 mandatory and presumptively reasonable. This argument is

9 refuted by the record. The district court conducted an

10 “individualized assessment” of the sentence warranted by

11 § 3553(a) “based on the facts presented,” Gall v. United

12 States, 552 U.S. 38, 50 (2007), and concluded that “nothing

13 below the minimum of the advisory guideline [and] nothing

14 above the minimum of the advisory guideline range is

15 necessary in light of the various factors that are at play

16 here.” Government Appendix at 22-23.

17 As to substantive reasonableness, Aumais principally

18 relies on our recent decision in United States v. Dorvee,

19 616 F.3d 174 (2d Cir. 2010), to support his argument that

20 the sentence was greater than necessary to serve the

21 purposes of sentencing. This argument, too, is without
27

1 merit.

2 Dorvee observed that U.S.S.G. § 2G2.2, the Guideline at

3 issue here, can, “unless applied with great care, . . . lead

4 to unreasonable sentences that are inconsistent with what

5 § 3553 requires” because the enhancements in that Guideline

6 “routinely result in Guidelines projections near or

7 exceeding the statutory maximum, even in run-of-the-mill

8 cases.” 616 F.3d at 184, 186. The various child

9 pornography enhancements applied in Dorvee resulted in a

10 Guidelines range that, at the low end, was twenty-two months

11 longer than the statutory maximum. Id. at 180. The

12 Guidelines range calculated in this case (121-151 months)

13 was well short of the statutory maximum, which was thirty

14 years (had the district court chosen to impose consecutive

15 sentences). Moreover, the district court found that 121

16 months imprisonment was “sufficient, but not greater than

17 necessary” to comply with the purposes of § 3553(a), id. at

18 182 (quoting United States v. Samas, 561 F.3d 108, 110 (2d

19 Cir. 2009), given the violent nature of the images, the

20 number of them, and other considerations. The sentence is

21 substantively reasonable.

22
28

1 CONCLUSION

2 For the foregoing reasons, the amended judgment of

3 conviction is affirmed in part and reversed in part.