United States v. Eduardo Alberto Niezen

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 4, 2020
• Docket: 19-13025
• Status: Unpublished

Opinion

USCA11 Case: 19-13025 Date Filed: 11/04/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13025 Non-Argument Calendar ________________________

D.C. Docket No. 1:18-cr-20852-KMM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO ALBERTO NIEZEN,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(November 4, 2020)

Before JILL PRYOR, GRANT, and BRASHER, Circuit Judges.

PER CURIAM: USCA11 Case: 19-13025 Date Filed: 11/04/2020 Page: 2 of 10

Eduardo Niezen pleaded guilty to receiving child pornography. See 18 U.S.C.

§ 2252(a)(2), (b)(1). The district court ordered that he pay ten of his victims

restitution totaling $55,000. On appeal, Niezen argues that the district court abused

its discretion in setting the restitution awards. We disagree, and affirm.

I.

The FBI suspected that Niezen was downloading child pornography. So in

October 2018, the FBI executed a search warrant on his home. Agents seized his

computer, hard drive, and other electronic devices. Forensic analysis of the devices

revealed nearly 20,000 images and 808 videos depicting minors engaged in sexually

explicit conduct—including toddlers and other children under the age of 12.

Through the National Center for Missing and Exploited Children (NCMEC), the

government was able to identify 31 of the victims. Ten of them—known here as

Jenny, Jessica, Erika, Tori, Jane, Maureen, Pia, Ava, Mya, and Emily—then

submitted requests for restitution.

The next month, Niezen was formally charged with one count of knowingly

receiving child pornography. See 18 U.S.C. § 2252(a)(2), (b)(1). He was also

charged with two counts of possession of child pornography involving a

prepubescent minor. See id. § 2252(a)(4)(B), (b)(2). But in exchange for the

government dismissing the possession charges, Niezen pleaded guilty to knowingly

2 USCA11 Case: 19-13025 Date Filed: 11/04/2020 Page: 3 of 10

receiving child pornography. Additionally, as part of his plea agreement, Niezen

agreed to pay restitution to his victims under all three counts.

The district court then sentenced Niezen to 97 months of imprisonment and 5

years of supervised release. And at a later restitution hearing, the district court

ordered that Niezen pay a total of $55,000 in restitution to the ten victims who

submitted requests. Niezen now challenges those restitution awards on appeal.

II.

Child pornography is an “abhorrent offense” that “scars the children affected

forever.” United States v. Schrank, 975 F.3d 534, 536 (6th Cir. 2020). It robs its

victims of their childhood and innocence, and burdens them with “concrete and

devastating harms”—harms that are amplified with every new download. Paroline

v. United States, 572 U.S. 434, 457 (2014). After all, each new perpetrator

contributes to the victims’ “anguish” and “plays a part in sustaining and aggravating”

the tragedy. Id.

Congress has taken several steps to combat the proliferation of child

pornography. One is at issue here: restitution. Child-pornography offenders—

whatever their role—are required to pay restitution to their victims. 18 U.S.C.

§ 2259(b)(4)(A).1

1 All citations to 18 U.S.C. § 2259 reference the 1996 version of the statute that was in effect at the time that Niezen committed the charged offenses. Congress has since amended § 2259 to, among other things, set $3,000 as the minimum amount of restitution for each victim of child 3 USCA11 Case: 19-13025 Date Filed: 11/04/2020 Page: 4 of 10

Restitution serves two purposes. See Paroline, 572 U.S. at 459. One, of

course, is to help “the victim achieve eventual restitution for all her child-

pornography losses.” Id. But it also “forces the defendant to confront, in concrete

terms, the harm his actions have caused.” Kelly v. Robinson, 479 U.S. 36, 49 n.10

(1986). This impresses upon the defendant “the fact that child-pornography crimes,

even simple possession, affect real victims.” Paroline, 572 U.S. at 459.

But child-pornography offenders are only required to pay restitution for losses

they “proximately caused.” Id. at 448. And calculating that amount is not easy—

especially when the defendant is “one of thousands” who have possessed a victim’s

images. Id. at 449. To help district courts estimate those losses, the Supreme Court

has identified several “rough guideposts” they may consider. Id. at 460. First, they

should “determine the amount of the victim’s losses caused by the continuing traffic

in the victim’s images”—that is, the victim’s total losses from the trade in her

images. Id. Then, district courts should weigh several factors—known as the

Paroline factors—to estimate the defendant’s “relative causal significance” in

producing those losses. Id. The result should be a “reasonable and circumscribed”

restitution award. Id. at 459.

pornography. See Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299, 132 Stat. 4383. 4 USCA11 Case: 19-13025 Date Filed: 11/04/2020 Page: 5 of 10

The Paroline factors include (1) “the number of past criminal defendants

found to have contributed to the victim’s general losses”; (2) “reasonable predictions

of the number of future offenders likely to be caught and convicted for crimes

contributing to the victim’s general losses”; (3) “any available and reasonably

reliable estimate of the broader number of offenders involved”; (4) “whether the

defendant reproduced or distributed images of the victim”; (5) “whether the

defendant had any connection to the initial production of the images”; (6) “how

many images of the victim the defendant possessed”; and (7) “other facts relevant to

the defendant’s relative causal role.” Id. at 460.

But again: these factors are only “rough guideposts.” Id. They are not a “rigid

formula.” Id. The district court therefore has “broad discretion” in calculating the

restitution awards. United States v. Rothenberg, 923 F.3d 1309, 1328 (11th Cir.

2019).

III.

We review the legality of a restitution order de novo, but review the factual

findings underlying a restitution order for clear error. Id. at 1327. We review the

amount of the restitution order for abuse of discretion. Id. We must give “due

deference” to the district court’s determination, and “should not vacate an award

unless left with the definite and firm conviction that the district court committed a

clear error of judgment in setting the award amount.” Id. at 1328.

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IV.

Niezen challenges the district court’s restitution awards on three grounds.

First, he contends that the government failed to prove some of the victims’ total

losses. Second, he asserts that the government did not prove the “causal connection”

between his conduct and those losses. And third, Niezen claims that the district court

disregarded the number of each victim’s images that he possessed. We are

unpersuaded.

First, Niezen argues that the government failed to properly substantiate the

victims’ total losses. The government must, of course, prove the “amount of loss

the child victim sustained” with evidence bearing “sufficient indicia of reliability to

support its probable accuracy.” United States v. Osman, 853 F.3d 1184, 1189 (11th

Cir. 2017).

But here it did precisely that. For eight of the victims—Jenny, Jessica,

Maureen, Jane, Pia, Ava, Mya, and Emily—the government provided letters from

counsel advising the court of the amount requested; victim impact statements

detailing the harm caused by the continuing trade in their images; and expert reports

by psychologists or economists.2 The psychological reports described the harms

2 Niezen complains that many of the expert reports were prepared before he was charged. He suggests that he therefore cannot be the proximate cause of the losses described in the reports. But we have already rejected this argument. See Rothenberg, 923 F.3d at 1335–37; see also United States v. Monzel, 930 F.3d 470, 482–83 (D.C. Cir. 2019) (declining to require a “perpetual nickeling and diming of the victim through the imposition of a never-ending accounting requirement”). 6 USCA11 Case: 19-13025 Date Filed: 11/04/2020 Page: 7 of 10

inflicted on the victims and the necessary treatments; the financial reports calculated

the victims’ financial losses or the cost of future treatment. Under our precedent, all

this evidence is more than sufficient to permit reasonable estimates of these victims’

losses. See Rothenberg, 923 F.3d at 1337–38.

For the remaining two victims—Erika and Tori—the government was unable

to provide expert evaluation reports. That is because neither had received enough

restitution to cover the cost of an evaluation. But the government did provide letters

from counsel describing the psychological harms that Erika and Tori experienced

from the continuing trade in their images. And those letters also stated that, in the

absence of expert reports, Erika and Tori’s calculable losses at that time were simply

the costs of performing the necessary evaluations—$20,500 each. The district court

found that to be a reasonable estimate of their total current losses.

We agree. Under the relevant provisions, victims may recover the “full

amount” of their losses. 18 U.S.C. § 2259(c)(2). That includes “any costs incurred,

or that are reasonably projected to be incurred in the future, by the victim, as a

proximate result of the offenses involving the victim.” Id. (emphasis added). Expert

reports are one such cost. See Rothenberg, 923 F.3d at 1339 (treating expert reports

as permissible costs); United States v. Leal, 933 F.3d 426, 433 (5th Cir. 2019)

(same). Accordingly, the district court did not err by using the cost of a

psychological report as Erika and Tori’s total current losses.

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Second, Niezen argues that the government failed to prove the “causal

connection” between his conduct and the victims’ losses. Specifically, he complains

that the government often did not provide information relating to some of the

Paroline factors. He points to three factors in particular: (1) the number of past

criminal defendants who have contributed to the victim’s losses; (2) the number of

future offenders likely to be convicted; and (3) the total number of offenders

involved.

But this argument confuses the inquiry. The Paroline factors are only “rough

guideposts” that district courts may consider. 572 U.S. at 460. They are not “rigid

evidentiary requirements” the government is “bound to satisfy, or that the district

court is obliged to analyze, in every restitution case.” Monzel, 930 F.3d at 481

(quotation mark omitted). They are “permissive,” and the district court is “generally

free to disregard them if it reasonably concludes they are unknowable or otherwise

uninstructive.” Id.; see also United States v. Sainz, 827 F.3d 602, 606 (7th Cir. 2016)

(“We do not read Paroline as requiring district courts to consider in every case every

factor mentioned.”). For that reason, we will not vacate a restitution award simply

because “the district court did not address each factor explicitly.” Rothenberg, 923

F.3d at 1328.

Rather, the district court need only acknowledge “that it has considered the

Paroline factors and the defendant’s arguments regarding restitution” before

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ordering a reasonable restitution award. Id. And here it did just that. The district

court examined each victim’s total losses from the trade in her images;

acknowledged Niezen’s conduct as a possessor rather than a distributor or producer;

noted the number of images Niezen possessed; and observed other factors, such as

the percentage of the victims’ losses Niezen would be paying. And to the extent the

information was available, the district court considered the number of past

defendants who had contributed to the victims’ losses. That is sufficient.

Third, Niezen argues that the district court impermissibly concluded that the

number of each victim’s images he possessed was “inconsequential to the restitution

process.” Not so. The district court specifically noted the number of each victim’s

images Niezen possessed as part of its analysis under Paroline. It merely concluded

that the number of images should not necessarily “drive the restitution amount.”

That is quite right; the number of images Niezen possessed is not determinative of

the final restitution award. After all, it is only one factor among many that district

courts may consider. Hence, it should come as no surprise when district courts order

restitution awards that do not correlate with the number of each victim’s images that

a defendant possessed. Indeed, this Court has affirmed such “disparate” restitution

awards before. See Rothenberg, 923 F.3d at 1321–23, 1335. We now do so again.

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V.

After review, we are not left with a “definite and firm conviction” that the

district court committed a “clear error of judgment” in setting the restitution awards.

Id. at 1328. On the contrary, the district court’s restitution awards were “within the

general range of reasonable restitution awards dictated by the facts of the case.” Id.

AFFIRMED.