United States v. Sanders

52 F. Supp. 3d 1329, 2014 U.S. Dist. LEXIS 143680, 2014 WL 5033280
CourtDistrict Court, N.D. Georgia
DecidedOctober 9, 2014
DocketNo. 1:12-cr-373-WSD
StatusPublished
Cited by2 cases

This text of 52 F. Supp. 3d 1329 (United States v. Sanders) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Sanders, 52 F. Supp. 3d 1329, 2014 U.S. Dist. LEXIS 143680, 2014 WL 5033280 (N.D. Ga. 2014).

Opinion

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on whether; on the facts of this case, the Court can order Defendant Benjamin Sanders (“Defendant”) to pay restitution to L.C. as part of his sentence.

I. INTRODUCTION

This case presents a unique issue regarding restitution. Defendant was convicted of the possession of pornographic images of children. Defendant, in addition to possessing child pornographic images obtained from the internet, possessed pornographic images of a victim known as L.C, Defendant’s niece. L.C. alleges that in addition to taking sexually explicit photographs of her, Defendant also sexually assaulted and abused her. Defendant was not charged in this or any other prosecution with sexually assaulting or abusing L.C., and was not convicted of producing pornographic images of L.C.

The restitution the Government seeks is for therapy to treat L.C. resulting, generally, from Defendant’s alleged sexual assaults and abuse of L.C., offenses for which Defendant was not charged or convicted. Defendant unequivocally denies that he sexually assaulted or abused L.C. and the Government’s only evidence of such conduct are L.C.’s unsworn, out of court statements that they occurred. The question is whether restitution can be ordered here for treatment other than that resulting from the offense of conviction.

II. BACKGROUND

On November 13, 2012, Defendant was indicted.1 On August 13, 2013, the Government filed its Superseding Indictment [43] (the “Indictment”), charging Defendant with: (i) using a minor to produce visual depictions of the minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2251(a) (Count One); (ii) receipt of visual depictions of minors engaged in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2) and (b)(1) (Count Two); and (iii) possession of visual depictions of minors engaged in sexually explicit conduct that were produced using minors engaging in sexually explicit conduct and shipped and transported by computer in interstate and foreign commerce, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Three).

On February 26, 2014, pursuant to the Guilty Plea and Plea Agreement entered into between Defendant and the Government [58-1] (the “Plea Agreement”), Defendant pleaded to, and was found guilty of, Count Three of the Indictment [58]— possession of child pornography that had been shipped or transported in interstate [1331]*1331or foreign commerce. The Government agreed, in the Plea Agreement, to dismiss the remaining Indictment counts. At the change of plea hearing held on February 26, 2014 (the “Plea Hearing”), Defendant admitted that he possessed pornographic images of minors engaging in sexually explicit conduct which he obtained using the internet. He then also admitted possessing pornographic images of his niece, L.C., a 15-year old juvenile. The evidence is that the images of L.C. were produced in Georgia. Defendant does not admit he produced the images but there is evidence they were stored on a camera and hard drive that he used and which were found in his home. The Government agrees that the images of L.C. were not received or sent in interstate or foreign commerce.

This prosecution began by L.C.’s report to Cobb County law enforcement authorities that Defendant had sexually molested her. Even though Defendant ultimately pled guilty only to possession of child pornography that had traveled through interstate or foreign commerce, the Government asserts that Defendant also had a sexual relationship with L.C. and that he sexually assaulted her and restitution should be based on this conduct as well as his offense of conviction. At sentencing, the Government chose not to present any evidence of a sexual relationship with, or sexual assaults of, L.C. by Defendant.' It relies on L.C.’s report of her sexual assault and abuse by Defendant to Cobb County, Georgia law enforcement and on L.C.’s statements about Defendant’s conduct which are in the report of the therapist who evaluated L.C. prior to sentencing.

In his Plea Agreement and at the Plea Hearing, Defendant was advised he would have to pay restitution to any victim of his offense. Defendant agreed to:

pay full restitution of all victims of the offense to which he is pleading guilty and all relevant conduct, including, but not limited to, any counts dismissed as a result of this-Plea Agreement.

(Plea Agreement at 7).

The Government seeks restitution for counseling and therapy ,for L.C. and the cost of cab fare for L.C. to attend these sessions. The costs are based on the evaluation of Ms. Dana W. Davis (“Davis”), a licensed clinical social worker with the Terrebonne Children’s Advocacy Center in Terrebonne, Louisiana. Davis prepared her evaluation report2 (the “Davis Report”) on L.C., stating her findings and offering her assessment of the cost of future treatment. Davis’s seven-page report detailed the harm L.C. suffered as a result of the sexual abuse and sexual assaults that L.C. claims Defendant committed. The Davis Report, in one sentence, noted that L.C. was unsure if and how the sexually explicit photographs of her that Defendant possessed were disseminated, and that this uncertainty causes her anxiety. (Davis Report at 2).3 Davis relied on L.C.’s report of Defendant’s conduct toward her in reaching her diagnoses and plan for therapy.

Davis estimated the aggregate cost of counseling and therapy for L.C. to be $53,200. This is the amount of restitution, without cab fare, which the Government argues that Defendant should be required to pay to L. C.4 The restitution amount [1332]*1332was calculated based on an estimated rate of $152 per session, which was multiplied by the number of hours of therapy Davis opined that L.C. will require.

On June 19, 2014, the Court held a sentencing hearing (the “Sentencing Hearing”), at which the Court, in addition to sentencing Defendant, addressed the restitution sought by the Government and to which Defendant objected. The Court noted that the Supreme Court’s recent decision in Paroline v. United States, stated that the purpose of restitution under 18 U.S.C. § 2259 is to compensate victims for losses caused by the offense of conviction. (Sentencing Hearing Transcript p. 89, lines 21-25; p. 90, lines 1-5). The Court stated that the Davis Report identified that L.C.’s need for therapy results from the alleged sexual assaults committed by Defendant and the pornographic images of L.C. (Id. p. 90, lines 6-12). Defendant’s conviction, however, was only for the offense of possession of child pornography. (Id. p. 90, lines 13-15). The Government acknowledged that there must be a link between the restitution losses and the offense of conviction, but noted that the Plea Agreement expanded Defendant’s restitution obligation to include not only the offense to which he pleaded guilty, but to all relevant conduct, including the dismissed charges. (Id. p. 92, lines 12-20).

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Cite This Page — Counsel Stack

Bluebook (online)
52 F. Supp. 3d 1329, 2014 U.S. Dist. LEXIS 143680, 2014 WL 5033280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sanders-gand-2014.