United States v. Johnston

707 F. Supp. 2d 616, 2010 U.S. Dist. LEXIS 40046, 2010 WL 1640933
CourtDistrict Court, E.D. North Carolina
DecidedApril 6, 2010
DocketNo. 7:09-CR-72-D
StatusPublished
Cited by1 cases

This text of 707 F. Supp. 2d 616 (United States v. Johnston) is published on Counsel Stack Legal Research, covering District Court, E.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Johnston, 707 F. Supp. 2d 616, 2010 U.S. Dist. LEXIS 40046, 2010 WL 1640933 (E.D.N.C. 2010).

Opinion

ORDER

JAMES C. DEVER III, District Judge.

On September 8, 2009, Dennis Stephen Johnston (“Johnston” or “defendant”) pleaded guilty to two counts of manufacturing child pornography in violation of 18 U.S.C. §§ 2251(a) and (d). The mandatory minimum for a violation of 18 U.S.C. §§ 2251(a) and (d) is not less than 15 years’ imprisonment and the statutory maximum is 30 years’ imprisonment. 18 U.S.C. § 2251(a), (d). Restitution is mandatory. See 18 U.S.C. § 2259(b)(4)(A). On December 15, 2009, the court held a sentencing hearing. The court adopted the facts stated in the Presentence Investigation Report (“PSR”) and sentenced Johnston to consecutive terms of 360 months’ imprisonment on counts one and two for a total term of 720 months [D.E. 18]. The court delayed imposing restitution so that losses could be ascertained and ordered the government to provide a restitution request by February 15, 2010.

On February 15, 2010, the government requested $1,662,930.00 in total restitution for the two victims [D.E. 23]. Defendant responded in opposition [D.E. 30] and the government replied [D.E. 31]. As explained below, the court grants the government’s request for restitution [D.E. 23],

[618]*618I.

As the court discussed at defendant’s sentencing hearing, adjectives are insufficient to describe the horror of Johnston’s criminal conduct. Johnston repeatedly sexually abused two children over a six-year period beginning in 2002 and ending in August 2008 when Johnston was arrested on related North Carolina state charges. PSR ¶¶ 4-5. One child was male (“male victim”) and one child was female (“female victim”). When the abuse began, the female victim was five years old and the male victim was eight or nine years old. Id. ¶¶ 4, 9. During these six years, Johnston repeatedly forced the victims to engage in sexual acts with each other and with Johnston while Johnston videotaped and photographed these acts. Id. ¶¶ 5-9.

After Johnston’s arrest, FBI agents examined Johnston’s computer and several media storage devices and found 1,200 pornographic still images of the female victim, 90 still images of the female victim and the male victim engaged in sexual acts with each other, additional images of Johnston and the female victim engaged in sexual acts, and 189 videos of child pornography. Id. ¶ 6. The FBI also found another 1,000 images of child pornography on Johnston’s computer, but these images were images of victims other than the female victim and the male victim. Id. ¶ 8.

Section 2259(b) provides for mandatory restitution of “the full amount of the victim’s losses.” 18 U.S.C. § 2259(b). Congress defined the full amount of 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(b)(3)(A)-(F). This amount also includes restitution for future medical expenses.

See, e.g., United States v. Pearson, 570 F.3d 480, 486 (2d Cir.2009) (per curiam); United States v. Doe, 488 F.3d 1154, 1159— 60 (9th Cir.2007); United States v. Danser, 270 F.3d 451, 455 (7th Cir.2001); United States v. Julian, 242 F.3d 1245, 1246-47 (10th Cir.2001); United States v. Laney, 189 F.3d 954, 966-67 (9th Cir.1999). The government must prove the victims’ losses by a preponderance of the evidence. See, e.g., 18 U.S.C. § 3664(e); United States v. Baker, 672 F.Supp.2d 771, 775 (E.D.Tex. 2009).

In enacting section 2259, Congress chose “generous terms, in order to compensate the victims of sexual abuse for the care required to address the long term effects of their abuse.” Laney, 189 F.3d at 966; cf. United States v. Morace, 594 F.3d 340, 350 (4th Cir.2010); United States v. Hecht, 470 F.3d 177, 182 (4th Cir.2006). Tellingly, in New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the Supreme Court, relying on various authorities in the field of child exploitation, recognized the long-term effects child victims of sexual exploitation face and explained that:

The use of children as subjects of pornographic materials is very harmful to both the children and the society as a whole. It has been found that sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults.

[619]*619Id. at 758 n. 9, 102 S.Ct. 3348 (quotation, citations, and alterations omitted). Moreover, when the abuser makes videotapes or photographs, the abuse is “permanently recorded],” and the “continued existence” of the photographs or videotapes cause “the child victims continuing harm.” Osborne v. Ohio, 495 U.S. 103, 111, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990).

Although Congress chose to phrase section 2259 broadly, the “statutory language is circumscribed by the requirement of a causal connection between the offense of conviction and the victim’s harm.” Doe, 488 F.3d at 1159 (quotation omitted). Nevertheless, a district court determining the amount of restitution is not required to determine the amount of loss with “mathematical precision.” Id. at 1160. Rather, to order restitution for future counseling and medical expenses, the amount of loss need only be capable of estimation with “reasonable certainty.” Id. at 1160; see Pearson, 570 F.3d at 486-87; Danser, 270 F.3d at 455-56; Julian, 242 F.3d at 1247-48; Laney, 189 F.3d at 967 n. 14.

The government seeks restitution totaling $1,662,930.00. Gov’t Req. for Restitution 1. In support, the government provided a report from Dr. Sharon W. Cooper, a forensic pediatrician and Fellow of the American Academy of Pediatrics, who reviewed the investigative reports in this case, and interviewed the two victims and their mother. Id. Ex. 1 [hereinafter “Cooper Report”]. Based on Dr.

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United States v. Johnson
707 F. Supp. 2d 616 (E.D. North Carolina, 2010)

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Bluebook (online)
707 F. Supp. 2d 616, 2010 U.S. Dist. LEXIS 40046, 2010 WL 1640933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnston-nced-2010.