A federal appeals court ruling earlier this month will likely have a significant impact on child pornography prosecutions in the United States. The decision has prompted U.S. lawmakers to propose a bill that would nullify the court's decision about crime victim restitution in subsequent child pornography cases.
Michael Loren Dunn was convicted of receipt, possession, and distribution of child pornography after he downloaded 20 images of child pornography via the internet file-sharing site LimeWire. He was sentenced to 144 months (12 years) in prison--less than the sentencing guidelines of 210 to 262 months in prison, but significantly greater than the 5 years he requested in light of his "acceptance of responsibility." In addition to his prison term, he was ordered to register as a sex offender for 25 years. Included in the sex offender restrictions is compliance with the Computer and Internet Monitoring Program, which will restrict computer and internet access. He was also ordered to pay restitution of $583,955 to one of the victims of child pornography appearing in the images he possessed--the full amount of restitution owed to her by all parties.
In United States v. Dunn, the defendant-appellant raised four issues with the United States 10th Circuit Court of Appeals regarding his conviction and sentencing:
- Improper jury instructions relieved the prosecution of the necessary burden of proof of distribution of child pornography.
- Convicting him of both "possession" and "receipt" of child pornography is violation of the Double Jeopardy Clause of the Fifth Amendment.
- Mandatory compliance with the Computer and Internet Monitoring Program is not supported by finding of fact.
- The court used the wrong legal standard in requiring him to shoulder the full burden of restitution.
In the first issue, Dunn argued that LimeWire automatically places images in a shared folder, and that his downloading of the files did not, on its own, constitute distribution of child pornography. He argued that the prosecution must prove that someone actually downloaded the images from his shared folder--not that they were just stored in a shared folder. However, a judge allowed the jury to infer distribution, which Dunn claimed was "'mandatory' presumption in favor of conviction." The appeals court disagreed, finding that allowing a jury to infer the act is not the same as requiring them to infer the act. In rejecting this challenge, the court asserted, "He may not have actively pushed pornography on [peer-to-peer] users, but he freely allowed them access to his computerized stash of images and videos and openly invited them to take, or download, those items."
The court agreed with the appellant's assertion that convictions of both receipt and possession of child pornography are multiplicitous, and that the dual convictions are violation of the Double Jeopardy Clause. The 10th Circuit Court found plain error in the multiplicitous convictions and pointed to the ruling in U.S. v. Benoit that asserts that possession is a lesser included offense of receipt. Because both charges arose out of the same conduct, Dunn should have been convicted of either receipt or possession of child pornography, but not both. The appeals court reversed and remanded the case back to the lower court with instructions to vacate one of the convictions.
The third issue, regarding the special conditions of release which restricted his computer usage, was particularly important to the appellant, who had worked with computers as a career. He argued that conditions which impinge upon a person's employment opportunities are subject to "special scrutiny," outlined in U.S. v. Butler:
- a reasonably direct relationship existed between the defendant's occupation, business, or profession and the conduct relevant to the offense of conviction; and
- imposition of such a restriction is reasonably necessary to protect the public because there is reason to believe that, absent such restriction, the defendant will continue to engage in unlawful conduct similar to that for which the defendant was convicted.
Furthermore, these restrictions may only be imposed "for the minimum time and to the minimum extent necessary to protect the public," according to U.S.S.G. § 5F1.5(b). The appeals court said that despite the prosecution's wish that the need for occupational restrictions be inferred by the nature of the crime--using a computer to download child pornography--the law holds that the district court must specifically prove the need for such restrictions. The appeals court stated, "After a careful review of the record, we cannot conclude that the district judge found-either explicitly or implicitly-that compliance with the monitoring program for the entire term of supervised release was minimally restrictive." In fact, the court noted the district court judge's own statements that he did not believe the defendant to be at high risk of re-offending. The appeals court remanded the case, instructing the district court to vacate the restrictions and "reconsider the matter with proper findings."
Finally, the defendant-appellant argued that the court erred in requiring him to pay the full amount of restitution to the victim, rather than simply the portion for which he was responsible. In the case, one of the minors appearing in an image of child pornography possessed by Dunn filed a request for restitution under 18 U.S.C. § 2259. "Vicky" sought the amount of $583,955, which represented her total losses minus the amount of restitution already received from others. Dunn argued that, under Paroline v. United States, he cannot be held solely responsible for "the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom [Mr. Dunn] had no contact." The 10th Circuit Court noted that Vicky's total losses were valued at $1.3 million and the district court's decision to hold a single defendant jointly and severally liable for nearly half of her losses to be against the precedent in Paroline. The appeals court is requiring the lower court to vacate the restitution order and, on remand, reconsider the restitution amount with guidance from Paroline as specified in the 10th Circuit Court's ruling.
Although the 10th Circuit Court agreed with Dunn on three out of four issues raised, federal lawmakers are attempting to pass a new law that would go against restitution precedents set by Paroline v. United States and U.S. v. Dunn. The Senate passed Bill S295, the "Amy and Vicky Child Pornography Victim Restitution Improvement Act of 2015," by a vote of 98-0. Under this act, any defendant ordered to pay restitution to a victim of child pornography may be held liable for the total amount of losses. Any person who has made full payment to the victim or made payment exceeding the statutory minimum may recover contribution from subsequent defendants ordered to pay restitution. However, he or she may not begin civil proceedings to recover contribution for at least five years.
