United States v. Darbasie

164 F. Supp. 3d 400, 2016 WL 836149
CourtDistrict Court, E.D. New York
DecidedFebruary 27, 2016
Docket14-cr-311 (ENV) (VMS)
StatusPublished
Cited by3 cases

This text of 164 F. Supp. 3d 400 (United States v. Darbasie) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Darbasie, 164 F. Supp. 3d 400, 2016 WL 836149 (E.D.N.Y. 2016).

Opinion

MEMORANDUM AND ORDER

VITALIANO, DISTRICT JUDGE.

On June 4, 2014, defendant Searl Darba-sie pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). On November 13,. 2015, the Court imposed sentence but reserved decision on restitution.

In line with 18 U.S.C. § 2259, though not in derogation of the victim’s right to be heard as provided in the Crime Victims’ Rights Act, 18 U.S.C. § 3771, it is the government’s burden to establish the restitution amount on behalf of any victim. Undergirding this process is the pre-sen-tence investigation report (“PSR”) prepared by the United States Probation Office. The PSR confirmed that, among the hundreds of images and videos found in Darbasie’s possession, were 10 series of child pornography contraband material in which victims have already been identified by law enforcement.1 Notice to all was provided, but only two of the identified victims, a victim from the “Marineland” series and a victim identified by the pseudonym “Cindy,”2 have actually sought restitution in this ease individually and for a specific amount. The government, nevertheless, in its current approach to restitution in a decidedly uncharted field, seeks award of $3000 to each known victim, notwithstanding the absence of a claim, purportedly in keeping with the Supreme Court’s recent decision in Paroline v. United States, — U.S. -, 134 S.Ct. 1710, 188 L.Ed.2d 714 (2014). If nothing else, the government’s proposed application of Paroline to the facts here helps crystalize the issue.

Background3

In April 2013, special agents from Homeland Security Investigations (“HSI”) weré investigating peer-to-peer file sharing computer programs seeking files stor[403]*403ing child pornography.4 On April 20 and 25, 2013, HSI agents identified a computer from a specific Internet Protocol (“IP”) address that was connected to the internet and contained files that agents recognized as storing child pornography images and videos. The agents directly connected to the computer at the IP address and downloaded three files, which, in fact, contained child pornography. Agents later determined that the IP address was registered to Darbasie’s residence.

On February 6, 2014, HSI agents executed a search warrant at defendant’s residence in Brooklyn. During that search, Darbasie agreed to be interviewed by the agents. He admitted that he watched and downloaded child pornography, even though he knew it was “not right.” He told how he began watching child pornography after viewing a news special about a woman who, as a child, was forcibly cast into pornographic videos. At first, he said, he searched the internet for those specific videos, but afterward began to search for and view child pornography for sexual gratification. Like many other voyeurs of child pornography, Darbasie admitted to using a peer-to-peer file-sharing program to download this material. He had also downloaded child pornography, he said, on a computer he owned prior to the execution of the search warrant, but, he claimed, it was damaged by Hurricane Sandy and stolen when he left it in his yard to dry out. The admission showed, in sum, that his viewing temporally and quantitatively had been significant.

The fruits of the search included seizure of one computer hard drive, one laptop computer and several CDs and DVDs. A forensic examination of the computer revealed 600 videos and approximately 100 images of child pornography in the “downloads” folder. These files included graphic depictions of prepubescent females engaging in oral, vaginal and anal sex with adult males and young boys.

On June 4, 2014, Darbasie pled guilty to a single-count information charging that at the time of his arrest, he possessed child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). On November 13, 2015, the Court sentenced him to 27 months in prison to be followed by five years’ supervised release. The Court reserved its decision on restitution in the event the parties wished to have a separate hearing on that subject. Both Darba-sie and the government declined a hearing and, therefore, rested their arguments on the papers filed with the Court.

As previewed earlier, the filings related to individual victims are hardly as uniform as the government’s uniform request for individual awards of restitution. Two, but only two, of the identified victims, a victim identified in the Marineland series and Cindy, have actually requested restitution in specific amount. Specifically, the victim identified in the Marineland series seeks a total restitution amount of approximately $2.75 million, against which 33 orders of restitution have already been entered. This victim’s counsel contends that Darba-sie’s share should be computed at $25,000 for general losses and $1500 in attorney’s fees. The victim in Cindy has submitted a total restitution claim for approximately $1.4 million, apparently relying upon the government to calculate Darbasie’s individual share. Additionally, following preparation of the PSR, counsel for one of the other victims identified in the Lighthouse series notified the government of that victim’s intention to submit a claim for resti[404]*404tution, which, to date, has not been submitted. No other identified victim has submitted a claim for restitution or voiced any intention to do so. Indeed, one victim has advised that she has been made whole and expressly requests that no further amounts be awarded or paid to her. Notwithstanding the disparate positioning of the victims, the government has proposed that Darbasie be ordered to pay restitution to each identified victim in the amount of $3000 apiece.

The Right to Restitution

Title 18 U.S.C. § 2259 requires the sentencing court to award restitution to, among others, victims of the crime of possessing child pornography and to do so. in “the full amount of the victim’s losses as determined by the court.” The statute goes on to define the “full amount of the victim’s losses” to include:

(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.

18 U.S.C. § 2259(3). While the statute encompasses a broad array of potential losses subject to restitution, the calculation of such restitution must rest on a showing of a causal connection between an item of loss and the crime.

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Cite This Page — Counsel Stack

Bluebook (online)
164 F. Supp. 3d 400, 2016 WL 836149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-darbasie-nyed-2016.