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 UNITED STATES DISTRICT COURT 

 DISTRICT OF NEW JERSEY 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

Eric BREISACHER, 

 

Defendant. 

 

 

 Criminal No. 11-338(AET) 

 

MEMORANDUM IN SUPPORT OF 

ORDER DIRECTING DEFENDANT TO 

PAY RESTITUTION

 

THOMPSON, U.S.D.J. 

 This case presents a question brought with increasing frequency before courts in this 

Circuit and around the country: namely, whether a sentencing court may award restitution under 

18 U.S.C. § 2259 to victims depicted in child pornography, from a criminal defendant who 

received, possessed, and may have distributed the images, but who was not directly involved 

with the creation of such images or with the victim’s original abuse. As explained below, the 

Court believes that a restitution award may be appropriate under these circumstances, and 

consequently has ordered such relief. 

I. Background 

On May 19, 2011, Defendant Eric Breisacher pled guilty to a one count Information 

charging him with the knowing and willful possession of child pornography in violation of 18 

U.S.C. § 2252A(a)(5)(B) and (2). At the hearing and under the Defendant’s written plea 

agreement of November 5, 2010, the Defendant allocuted to using various file sharing programs 

to amass a collection of child pornography consisting of 1,064 images and 786 videos. See (PSR 

¶ 20). The images and videos included depictions of minors being raped, restrained and 

subjected to other sadistic or masochistic conduct. See (id. ¶ 19). Following the plea, the 

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Government forwarded the Defendant’s collection of child pornography to the National Center 

for Missing and Exploited Children (“NCMEC”) with a request that the images be reviewed for 

identified children. See (id. ¶ 22). After reviewing the collection, NCMEC identified victims 

depicted in 277 image files and 166 video files. See (U.S.A. Br. in Support of Restitution, Ex. 

A) [23]. Four of the victims identified by the NCMEC submitted restitution claims: Vicky (the 

victim in the “Vicky” series), Misty/Amy (the victim in the “Misty” series), L.S (the victim in 

the “Jan_Feb” series), and Cindy (the victim in the “Cindy” series). (Id.). Following a status 

conference on May 25, 2012 in which the parties indicated that the issue of restitution would be 

contested in this matter, the Court ordered that supplemental briefing concerning the issue of 

restitution be filed by June 15, 2012. [21]. Sentencing was set for June 22, 2012. [22]. At 

sentencing the Court imposed a term of 78 months of imprisonment and five years of supervised 

release with conditions. [25]. After considering the submission of the parties and the arguments 

made on the record during the sentencing hearing, the Court additionally ordered that the 

Defendant pay restitution in the amount of $10,000 to each of the identified victims. (Id.) 

II. Discussion 

The mandatory restitution provision of the Protection of Children Against Sexual 

Exploitation Act directs the district court to order a defendant to pay restitution to the “victim” of 

a crime of child sexual exploitation. See 18 U.S.C. § 2259(a)-(b). “Victim” is defined as “the 

individual harmed as a result of a commission of a crime under this chapter.” Id. § 2259(c). 

Taken together, these provisions tie restitution awards to harms resulting from a defendant’s 

conduct. Consequently, the United States Court of Appeals for the Third Circuit has required a 

finding of proximate causation to determine whether a victim is entitled to restitution under § 

2259. See United States v. Crandon, 173 F.3d 122, 125 (3d Cir.1999). Under this standard, the 

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Third Circuit has described proximate cause as requiring that a defendant’s actions be a 

“substantial factor in causing the ultimate loss.” See id. 

The Defendant has argued that restitution is not warranted in this case as “there is no 

specific proof of the actual harm caused by Breisacher.” (Def.’s Opp’n at 4). The Defendant 

notes that the psychological records introduced by the Government in support of its application 

for restitution “reference the type of harm suffered by a victim of sexual abuse, magnified by the 

memorialization of such abuse for the purpose of child pornography,” but contends that none of 

the proof specifically reference the harm caused by the Defendant’s possession of these images. 

See (id. at 4–5). By contrast, the Government contends that the restitution requests and 

supporting documentation provided by the identified victims in this case establish that the 

Defendant’s conduct-- i.e., obtaining sexually explicit images of the victims and sharing those 

images with others over the Internet through a peer-to-peer file sharing network-- has in fact 

proximately caused harm to each of these victims. (U.S.A. Br. in Support of Restitution, at 9). 

After considering all of the arguments, the authority before it, and the broad purpose 

underlying the restitution provision, the Court finds that the Government has met its burden in 

establishing that at least some of the identified victims’ losses can be said to be proximately 

caused by the Defendant’s crime and, consequently, that a restitution award is appropriate under 

these circumstances. 

A. Rationale for Restitution 

The Court begins by acknowledging that “[i]t is beyond dispute that child pornography 

victims suffer from trauma as a result of their sexual abuse, and that the knowledge that 

anonymous individuals continue to view and distribute images of their abuse exacerbates the 

victims’ feelings of fear, anxiety, and powerlessness.” United States v. Monzel, 746 F.Supp.2d 

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76 (D.D.C. 2010). As the Supreme Court has noted, “[t]he materials produced [in child 

pornography] are a permanent record of the children’s participation and the harm to the child is 

exacerbated by their circulation.” New York v. Ferber, 458 U.S. 747, 759, (1982); see also 

Osborne v. Ohio, 495 U.S. 103, 111 (1990) (“The pornography’s continued existence causes the 

child victims continuing harm by haunting the children for years to come.”). Far from being 

mere bystanders, courts have recognized that consumers of child pornography such as the 

Defendant who download and share such images, whether through paid services or via peer-topeer networks supported by advertizing, directly participate in the victimization of children by 

creating a market for the abuse by providing an economic motive for creating and distributing 

the materials. See Osborne, 495 U.S. at 109–12; Ferber, 458 U.S. at 755–56. The Third Circuit 

has specifically addressed the harm caused by possessors of child pornography concluding that 

such defendants’ consumption of these images “directly contribute to this continuing 

victimization.” United States v. Goff, 501 F.3d 250, 259 (3d Cir. 2007). 

Recognizing this effect, Congress has roundly condemned and sought to punish the 

possession of child pornography. See Child Pornography Prevention Act of 1996, 18 U.S.C. § 

2251 (“[T]he existence of a traffic in child pornographic images ... increas[es] the creation and 

distribution of child pornography ...,” and “prohibiting the possession and viewing of child 

pornography will ... eliminate the market....”); see also Prosecutorial Remedies and Other Tools 

to End the Exploitation of Children Today Act of 2003, Pub.L. No. 108-21, § 401(b), (attempting 

to amend 18 U.S.C. § 3553(b)(2) to restrict the authority of the district courts to depart from the 

Sentencing Guidelines in sexual offense and child pornography cases). As the Third Circuit has 

explained, Congress’ criminalization of the possession of child pornography “discourages its 

production by depriving would-be producers of a market.” United States v. Ketcham, 80 F.3d 

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789, 793 (3d Cir.1996). Moreover, recognizing the losses sustained by victims of child 

pornography including the need for medical services relating to physical, psychiatric, or 

psychological care, physical and occupational therapy or rehabilitation, as well as representation 

costs, Congress has mandated that restitution be provided to such victims. See 18 U.S.C. § 2259. 

Misty/Amy, Vicky, Cindy and L.S. have submitted, through the Government, detailed 

victim impact statements and expert estimates of total loss as a result of the crimes of sexual 

exploitation to which they have been subjected. From reviewing these statements and the 

accompanying treatment reports of the identified victims, it is clear to the Court that many of the 

alleged losses arise out of the need for ongoing psychological treatment as a result of the 

knowledge that the Defendant and others have invaded, and continue to invade, their privacy and 

that the Defendant and others gain prurient pleasure in the images of their abuse. 

The Court joins the majority of its sister courts in this Circuit in finding that the 

“substantial factor” test articulated by the Third Circuit in Crandon allows for restitution in cases 

of “concurrent cause,” where multiple actors do something which, on its own, would be 

sufficient to bring about the harm. See Crandon, 173 F.3d at 126 (noting that “it was entirely 

reasonable for the District Court to conclude that the additional strain or trauma stemming from 

Crandon’s actions was a substantial factor in causing the ultimate loss.”); see also United States 

v. Hardy, 707 F.Supp.2d 597, 612 (W.D.Pa. 2010); United States v. Olivieri, No. 09-743, 2012 

WL 1118763, at * 5 (D.N.J. April 3, 2012); United States v. Barkley, No. 10-143, 2011 WL 

839541, at * 5 (March 7, 2011). But see United States v. Covert, No. 09-332, 2011 WL 134060, 

at * 9 (W.D.Pa. Jan 14, 2011) (declining to award restitution finding that the Government did not 

meet its burden to show that the defendant’s possession of two of the victim’s images caused the 

victim a specific loss beyond the generalized harm she suffered and continues to suffer). From 

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the materials submitted by the Government, it is clear to this Court that, though this Defendant 

was one of many who downloaded images of the identified victims’ abuse, his acts were a 

substantial factor in the harms they suffered. Therefore the Court finds that the Government has 

met its burden in establishing that the Defendant’s crime proximately caused at least some of the 

losses sustained by the identified victims. 

B. Amount of the Restitution Award 

Having held that the Defendant proximately caused some of the losses sustained by the 

identified victims, the Court is confronted with the question of what restitution award is properly 

due to the identified victims. Although § 2259(b)(1) generally directs the Court to award the full 

amount of the victims’ losses, it is not immediately obvious what amount should be awarded in 

this case given that the Defendant did not proximately cause all of the damages the victims 

suffered. In fashioning a restitution award where multiple defendants have contributed to the 

victims’ losses, 18 U.S.C. § 3664(h) provides that: “If the court finds that more than 1 defendant 

has contributed to the loss of a victim, the court may make each defendant liable for payment of 

the full amount of restitution or may apportion liability among the defendants to reflect the level 

of contribution to the victim’s loss and economic circumstances of each defendant.” 

In its arguments before the Court, the Government did not endorse any particular formula 

or method for determining the amount of losses that the Defendant proximately caused. The 

Government merely summarized the amount each privately represented victim requested. 

Counsel for Vicky seeks a restitution award of $761,259.35, representing certain future treatment 

and counseling expenses as well as educational and vocational counseling expenses in addition 

to litigation costs and attorney’s fees. (U.S.A. Br. in Support of Restitution, at 2–3). Counsel for 

Misty/Amy requests restitution in the amount of $3,388,417, which consists of $512,681 in 

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future treatment and counseling expenses, $2,855,173 in lost and reduced income, $17,063 in 

expert witness fees, and approximately $3,500 in attorney’s fees and other costs incurred. (Id. at 

3). Counsel for Cindy seeks total restitution of $65,776.40 which consists of $36,233.63 in past 

treatment and counseling expenses, $768.31 in prescription costs, $23,101.25 in attorney’s fees 

and $5,673.21 in litigation expenses as of January 7, 2012. (Id.). Finally, Counsel for L.S. 

requests a restitution award of $150,000, representing the minimum damages of child 

pornography victims in civil suits under 18 U.S.C. § 2255, although Counsel documents 

$1,853,900 in damages, consisting of $1,841,400 in future treatment and counseling expenses, 

$7,500 in expert witness fees and $5,000 in attorney’s fees. Noting the modest nature of the 

Defendant’s conduct in terms of the entire losses sustained by the identified victims, Defense 

counsel has argued that the Defendant should not be ordered to pay restitution for all of the 

victims’ losses. (Def.’s Opp’n at 6–7). The Court agrees with the Defendant. 

Although the Court notes that the losses claimed by the victims clearly fall within the 

scope of the Defendant’s conduct as an active participant in a market that continues to exploit the 

identified victims and encroach on their privacy, the Court finds that apportioning a discrete 

amount of the victims’ losses to the Defendant is in the interests of justice given a case on these 

facts where many different individuals have, and unfortunately likely will continue to, access and 

possess similar images of the identified victims. While a number of courts have rather 

ingeniously attempted to create various mathematical formulas to devise a proportional share of 

the losses attributable to the Defendant based on a review of other indicted defendants or an 

estimation of perpetrators at large, the Court recognizes that mathematical precision is not 

required in the damages calculation for a restitution order and that the Court need only be able to 

estimate the victims’ losses with some reasonable degree of certainty. See United States v. Doe, 

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488 F.3d 1154, 1159–60 (9th Cir. 2007); Barkley, 2011 WL 839541, at *5. Having reviewed 

the identified victims’ incurred expenses and estimation of future costs and recognizing that a 

district court has leeway to “resolve uncertainties ‘with a view towards achieving fairness to the 

victim,’” United States v. Innarelli, 524 F. 3d 286, 294 (1st Cir. 2008), the Court believes that an 

award of $10,000 per victim is an appropriate amount to compensate the identified victims for 

their losses as a result of the Defendant’s conduct. For all of the reasons stated above, the Court 

has ordered such relief. 

 /s/ Anne E. Thompson 

 ANNE E. THOMPSON, U.S.D.J. 

Date: July 6, 2012

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