The opinion of the court was delivered by: Christopher C. Conner United States District Judge
On September 2, 2010, defendant Ronald Clarence Barkley ("Barkley") pled guilty pursuant to a written plea agreement with the government (see Doc. 22) to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). According to the terms of the plea agreement, Barkley agreed to allow the court to determine the appropriate restitution for identifiable victims in the images of child pornography found in his possession. (Id. ¶ 14). Two identified victims submitted restitution requests. One identified victim requests $3,367,854 in restitution and another victim requests $150,000 in restitution for a total of $3,517,854. (Pre-sentence Report ("PSR") ¶ 70). The government seeks to hold Barkley liable for the full restitution amount jointly and severally with similarly situated defendants. (PSR ¶ 18). Barkley objects to the amount of restitution asserting that the way, manner, or process by which the amount of restitution was calculated is unclear. For the reasons that follow, the court finds that restitution is warranted but declines to establish a restitution amount without further proceedings.
Pursuant to a search warrant executed at Barkley's residence on June 24, 2009, government agents discovered 460 images of child pornography on seized computer media. The search also revealed eleven videos/movies known to contain child pornography. Some of the images portrayed sadistic and masochistic conduct. Through the Child Victim Identification Program from the National Center for Missing and Exploited Children officials identified seventeen series of child pornography images on Barkley's computer that portray known victims. Barkley was indicted on May 5, 2010 with one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B), (Doc. 1), and pled guilty on September 2, 2010. (Doc. 25). In preparation of the presentence report, the United States Probation Office received victim impact statements representing six of the seventeen identified series of child pornography. Amy, a pseudonym of a victim of the "Misty" series, requested restitution totaling $3,367,854. L.S. a victim of the "Jan_Feb" series requests restitution in the amount of $150,000.
When Amy, the victim of the "Misty" series, was eight and nine years old, she was raped and sexually exploited by her uncle. (Correspondence from Counsel for Amy, Dated June 22, 2010 (hereinafter "Letter"), at 2). Amy has suffered and continues to suffer significant harm as a result of this abuse. James R. Marsh, Esquire, counsel on behalf of Amy, submitted Amy's request for restitution which includes a victim impact statement from Amy, a psychological evaluation report from Dr. Joyanna Silberg, and a loss calculation analysis by Stan Smith of Smith Economics Group, Ltd. Attorney Marsh asserts that "[t]he primary reason Amy was raped and forced to endure oral copulation, anal penetration and masturbation with an adult man was to provide child pornography for an end user / consumer whose demand for child sex abuse images directly led to her physical and psychological abuse and exploitation." (Id.) Each distribution and viewing of the images of her abuse re-victimizes Amy. Treatment is particularly problematic as the abuse is never really over. (Letter, at 5 (stating that "[t]he continuous distribution and possession of a victim's child sex abuse images imposes a permanent and recurring reminder of their sexual abuse and this knowledge further exacerbates the psychological harm caused by the actual act of abuse")). Dr. Silberg reports that Amy will likely suffer the effects of her abuse over her entire lifetime, will require weekly therapy and will likely require stints of more intensive inpatient or rehabilitation services. (Id. at 10).
Amy explains that each time her images are viewed "[i]t's like I am being abused over and over and over again," and because of the proliferation of the internet "the crime has never really stopped and will never really stop." (Victim Impact Statement - Amy, at 1). Amy describes the effects the abuse and continued viewing has had on her, including: dissociation, fear, humiliation, shame, embarrassment, nightmares, trust issues, and feelings of unworthiness. (Id. at 2). Dr. Silberg corroborates the continued trauma and confirms the difficulty of treating in light of the frequency of her re-victimization. (Silberg Report, at 8-10).
Pursuant to 18 U.S.C. § 2259, Attorney Marsh requests restitution for the entire amount of Amy's losses stemming from the initial abuse by her uncle and the constant re-traumatization by each defendant like Barkley who possesses her images.*fn1 Attorney Marsh asserts that the circulation of the images of Amy's abuse is an ongoing violation of her dignity and privacy, causes her shame, humiliation and emotional distress all resulting in substantial injury that flows directly and proximately from conduct such as Barkley's. (Letter, at 15).
In sentencing a defendant, the court is required to consider the kinds of sentences available and "the need to provide restitution to any victims of the offense." 18 U.S.C. § 3553(a). Restitution awards in child pornography possession cases are a developing area of law of restitution.
Pursuant to 18 U.S.C. § 2259, the controlling restitution statute in this case, restitution is mandatory: "the court shall order restitution for any offense under this chapter." 18 U.S.C. § 2259(a) (emphasis added); id. § 2259(b)(4) ("The issuance of a restitution order under this section is mandatory."). Accordingly, a defendant must pay the victim "the full amount of the victim's losses as determined by the court." Id. § 2259(b)(1). Those losses include: any costs incurred by the victim for--
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation; © necessary transportation, temporary ...