United States District Court, N.D. Ohio, Eastern Division
AMENDED OPINION AND ORDER
CHRISTOPHER A. BOYKO, UNITED STATES DISTRICT JUDGE
the Court is the issue of restitution under 18 U.S.C. §
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
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. §
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.
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.
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.
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.
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.
LAW AND ANALYSIS
Standard of Review
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.
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.
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.”
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.
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 § 2259 require this Court to award
restitution. The challenge for the Court will be to ascertain