The opinion of the court was delivered by: Judge George C. Smith
This matter is before the Court on the Government's request for restitution on behalf of "Amy"*fn1 , one of the known victims depicted in the child pornography images possessed by Defendant Christopher Klein (Doc. 44).*fn2 Defendant Klein, through counsel, has filed a response in opposition to the restitution request. The Court held a hearing on this matter on November 2, 2011. This request for restitution presents an issue of first impression in this district: whether a criminal defendant who received and possessed child pornography, but did not create the images should be ordered to pay restitution under 18 U.S.C. § 2259, to a victim who was depicted in the child pornography.*fn3 After considering the arguments set forth in the briefs and presented at the hearing on this matter, the Court GRANTS in part the Government's request for restitution.
Agents with the Federal Bureau of Investigation ("FBI") in Columbus, Ohio, and in California, as well as the Internet Crimes Against Children ("ICAC") Task Force in Columbus, Ohio, conducted an investigation into the downloading and trading of child pornography on a bulletin board known as "Lost Boy." The Defendant, Christopher Klein, became involved with the "Lost Boy" bulletin board by May 10, 2008. Defendant Klein, through the screen name of "Mr. Bean" or "Lookit," posted a number of messages on "Lost Boy" containing child pornography. He made approximately 160 public posts to other message board users. In addition to posting messages containing child pornography, Klein commented on child pornography posted by other members, and encouraged other members to continue to post child pornography. Further, the investigation determined Klein acted as a security person for the "Lost Boy" website and that he assisted others in protecting their involvement with child pornography by offering ways to avoid detection.
"Lost Boy" was hosted by Hostgator.com, which is a commercial web hosting company with more than one million hosted domains on its servers. Hostgator.com was paid to host "Lost Boy" through a Paypal account associated with co-defendant Woodendoll. "Lost Boy" was located on an Internet server in Texas, but also operated in every location where members of the bulletin board accessed it through the Internet. When Klein joined "Lost Boy," he was aware the "Lost Boy" board was itself a notice and advertisement, seeking and offering to receive, exchange, buy, produce, display, distribute and reproduce visual depictions of minors engaged in sexually explicit conduct, where the production of these images involved the use of minors engaged in sexually explicit activity.
The bulletin board "Lost Boy" was dedicated to "boy lovers," meaning men who have a sexual interest in young boys. The main purpose of "Lost Boy" was to provide a forum for the trading of child pornography. "Lost Boy" had a comprehensive vetting process for allowing new members to join the message board. Each member had to post child pornography in order to become a member. Furthermore, in order for "Lost Boy" members to remain in good standing and not be removed from the board, members were required to post images of child pornography. Members did not use their real names. Instead, they used screen names to mask their identities.
The investigation also determined that there was a smaller group of individuals affiliated with "Lost Boy" of which Defendant Klein was involved. In this smaller group of individuals, a peer-to-peer file sharing network, known as "Waste" was utilized to further avoid detection. When this process was used, individuals could sign onto their computer program with safety measures in place utilizing a thumb drive, which was utilized for sharing and receiving child pornography to their individual laptop computers. The individuals who utilized this group were informed of a specific time to meet on line and exchange peer-to-peer child pornography with each other. Once the session was completed, the individuals would remove the thumb drive and there would be no trace of their accessing child pornography left on their computer.
On September 30, 2010, a warrant was executed to search the residence of Christopher Klein at 1136/1138 East 17th Avenue, Columbus, Ohio, based on evidence related to child pornography offenses. At the time the search warrant was executed, agents found images of child pornography on Klein's computer. Investigators determined that Defendant's personal computer contained thousands of images of child pornography, including both videos and photographs.
On April 19, 2011, the Defendant entered a guilty plea to Count 1 of the Indictment in Case Number 2:10-CR-333 (Southern District of Ohio, Eastern Division), charging him with receiving one or more visual depictions of child pornography in violation of 18 U.S.C. § 2252(a)(2) and Count 2 of the Second Superseding Indictment in Case Number 2:09-CR-68-VAP (Central District of California, Western District Los Angeles), charging him with conspiracy to advertise child pornography in violation of 18 U.S.C. § 2251(d)(1)(A) and (e). The Defendant was sentenced on these charges on November 2, 2011, to 60 months on Count 1 in 2:10-CR-333 and 180 months on Count 2 in 2:09-CR-68-VAP, to be served concurrently. Additionally, Defendant was sentenced to a term of supervised release of life on each count to run concurrently.*fn4 The Court notes that the restitution issue now before the Court was not contemplated at the time the Defendant entered his guilty plea to these charges.
Among the images and videos possessed by Defendant Klein were images of "Amy." Counsel for the victim, "Amy," has submitted a letter and other documentation to the Government requesting financial restitution for his client.*fn5 The victim, "Amy," is seeking reimbursement for her losses, in the amount of $3,367,854, for past and future treatment and counseling, as well as her lost and reduced income as a result of her abuse. Additionally, she has incurred expert witness fees in the amount of $17,063, and attorney's fees estimated at $3500.
The victim, "Amy" has provided a statement describing how the abuse and exploitation she suffered as a child has hurt her. She describes that her uncle began sexually abusing her when she was only four years old. "Amy" further states:
There is a lot I don't remember, but now I can't forget because the disgusting images of what he did to me are still out there on the internet. For a long time I practiced putting the terrible memories away in my mind. Thinking about it is still really painful. Sometimes I just go into staring spells when I am caught thinking about what happened and not paying any attention to my surroundings.
Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them--at me--when I was just a little girl being abused for the camera. I did not chose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle.
When they first discovered what my uncle did, I went to therapy and thought I was getting over this. I was very wrong. My full understanding of what happened to me has only gotten clearer as I have gotten older. My life and my feelings are worse now because the crime has never really stopped and will never really stop.
It is hard to describe what it feels like to know that at any moment, anywhere, someone is looking at pictures of me as a little girl being abused by my uncle and is getting some kinds of sick enjoyment from it. It's like I am being abused over and over and over again. (Gov't Memo. Ex. 1).
The Government is seeking restitution for the victim "Amy" pursuant to 18 U.S.C. § 2259. The Government asserts that the Court is required to award restitution to the victim in the full amount of her losses. The Defendant, however, argues that the Court should deny the request for restitution because the Court cannot determine with reasonable certainty what if any of the alleged harm was proximately caused by the Defendant.
Amy, the victim in this case, is seeking restitution pursuant to the Mandatory Restitution for Sex Crimes section of the Violence Against Women Act of 1994, codified at 18 U.S.C. § 2259. This statute provides, in pertinent part, as follows:
Section 2259. Mandatory Restitution
(a) In general. Notwithstanding section 3663 or 3663A [18 USCS § 3663 or 3663A], and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter [18 USCS §§ 2251 et seq.].
(b) Scope and nature of order.
(1) Directions. The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victim's losses as determined by the court pursuant to paragraph (2).
(2) Enforcement. An order of restitution under this section shall be issued and enforced in accordance with section 3664 [18 USCS § 3664] in the same manner as an ...