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United States v. Mobasseri

United States District Court, N.D. Ohio, Eastern Division

August 12, 2019




         Before the Court is the issue of restitution under 18 U.S.C. § 2259[1] and whether Defendant John S. Mobasseri owes restitution to four identifiable victims of child pornography. Both the Government and Defendant have briefed and orally argued the matter. Because Defendant had a causal role in each of the victims' losses, the Court enters the following Order of Restitution.


         On April 11, 2017, a Grand Jury indicted Defendant with one count of Receipt and Distribution of Visual Depictions of Minors Engaged in Sexually Explicit Conduct, a violation of 18 U.S.C. § 2252(a)(2); and one count of Possession of Child Pornography, a violation of 18 U.S.C. § 2252A(a)(5)(B).

         On December 4, 2017, Defendant pleaded guilty to both counts. In doing so, Defendant admitted that from July 13, 2009 to January 4, 2017, Defendant used software on his computer to search for and download images and videos depicting real minors engaged in sexually explicit conduct. Defendant utilized a peer-to-peer software that enabled third-parties to download the same material Defendant possessed. Because of this, Government investigators downloaded over 1, 600 files, many of which contained child pornography.

         Before sentencing, four victims sought restitution totaling $33, 000. Each victim submitted an impact statement that highlighted the pain and suffering each endured, and continues to endure, because of the actions of Defendant and others like him.

         On April 5, 2018, the Court sentenced Defendant to 136 months imprisonment and 5 years supervised release. The Court also imposed a total restitution amount of $30, 000. Defendant appealed the sentence.

         On April 17, 2019, the Sixth Circuit vacated the restitution award. United States v. Mobasseri, 764 Fed. App'x 549 (6th Cir. Apr. 17, 2019). The Sixth Circuit determined the Court did not provide rationale for its restitution order and therefore remanded the case back to this Court to do so. Id.

         On July 26, 2019, the Court conducted a hearing on restitution. Both Defendant and the Government filed briefs outlining their respective positions prior to the hearing. The Government sought $30, 000 as restitution for the four victims. Defendant disagreed and believed that the Court should not enter an award of restitution because there is a lack of evidence that Defendant caused the victims' losses.


         A. Standard of Review

         “A district court ‘shall order restitution for any offense' under Chapter 110 of Title 18, which covers...offenses involving the sexual exploitation of children and child pornography in particular.” Paroline v. United States, 572 U.S. 434, 443 (2014) (citing 18 U.S.C. 2259(a)). Restitution is mandatory. 18 U.S.C. § 2259(b)(4)(A). However, restitution is “proper under § 2259 only to the extent the defendant's offense proximately caused a victim's loss.” Paroline, 572 U.S. at 448. The burden of proving the victim's loss is on the Government. 18 U.S.C. § 2259(b)(2); 18 U.S.C. § 3664(e); Paroline, 572 U.S. at 443.

         The Court in Paroline realized the inherit problems of applying traditional concepts of causation to § 2259. Id. at 458. For example, the Court explicitly stated § 2259 does not require “but-for” causation. Id. Rather, the Court held that, in the special context of child pornography,

where it can be shown both that a defendant possessed a victim's images and that a victim has outstanding losses by the continuing traffic in those images but where it is impossible to trace a particular amount of those losses to the individual defendant by recourse to a more traditional causal inquiry, a court applying § 2259 should order restitution in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses.


         When ordering restitution in this “special context, ” the amount should “not be severe” nor should it “be a token or nominal amount.” Id. at 458-59. Rather, a restitution award must be “reasonable and circumscribed” to recognize the role of defendant in the causal process of the underlying victim's losses and suited to that role. Id. at 459. This is not a “precise mathematical inquiry” but rather an exercise of “discretion and sound judgment.” Id.

         Paroline offers “rough guideposts” for determining an amount that fits the particular defendant's offense. Id. at 460. As a starting point, a district court should first determine the amount of the victim's losses by the continuing traffic in the victim's images. Id. Next, the court should consider certain factors that indicate the relative causal significance of the defendant's conduct in producing those losses. Id. Those factors include:

the number of past criminal defendants found to have contributed to the victim's general losses; reasonable predictions of the number of future offenders likely to be caught and convicted for crimes contributing to the victim's general losses; any available and reasonably reliable estimate of the broader number of offenders involved...; whether the defendant reproduced or distributed images of the victim; whether the defendant had any connection to the initial production of the images; how many images of the victim the defendant possessed; and other facts relevant to the defendant's relative causal role.


         The parties do not dispute that Defendant both “possessed a victim's images” and that the victims here have outstanding losses from the trafficking of their images. Moreover, it is impossible to trace a particular amount of the victims' losses to Defendant. In such a case, and despite Defendant's arguments to the contrary, Paroline and ยง 2259 require this Court to award restitution. The challenge for the Court will be to ascertain ...

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