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Case number 16-3108, the United States of America versus Michael M. Monzell, appellant.

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Ms.

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Torbena, the appellant.

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Mr. Hansford, the appellate.

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Good morning.

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Good morning.

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May it please the court.

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Rosanna Taramina for appellant, Mr. Michael Monzell.

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I'd like to reserve two minutes for rebuttal.

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This morning marks the third appearance before this court for Mr. Monzell and the government relating to issues

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surrounding the determination of restitution for child pornography victim Amy.

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As Amy herself has recognized and as the Supreme Court recognized no less than 11 times in its opinion in parallel, the images of Amy's abuse suffered at the hands of her uncle have been viewed and will continue to be viewed by thousands upon thousands of individuals, not just in this country, but around the globe.

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In our first

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appearance before this court in Manziel 1.

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This court affirmed the district court's adoption of the proximate causation standard, the same standard that the Paraline Court eventually did adopt.

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And it also agreed with the district court's factual finding that the government had done – had made no showing as to the amount of Amy's losses attributable to Mr. Manziel.

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This court remanded the case because the district court's $5,000 award was inconsistent with that factual finding.

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In doing so and remanding the case, this court stressed two specific things.

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First, that in fixing an amount of restitution, the district court must rely on some principled method for determining the harm that Manziel caused Amy.

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It's expressed expectation that the government will do more this time around to aid the district court in its endeavor, especially in light of its statutory burden to do so under section 3664E.

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In the face of this- So can we talk about that remand instruction?

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Yes.

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It's a pretty strong instruction, but it's pre-paroling.

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And in paroling, the Supreme Court was much more

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open-ended, pragmatic, said there's no one perfect way of doing this and seemed to give district courts a lot more leeway.

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I don't believe that the Supreme Court in parallel gave the district courts any more leeway.

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In fact, I think that the factors it set forth were much more specific than anything that this court did say in Monzell.

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In addition, though

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There is discretion in Paraline, and though Paraline does recognize that there may not be one precise correct answer to this question, the fact that there may not be one correct answer does not mean that there is not a wrong answer.

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And the wrong answer here certainly is $7,500.

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There's no way to use it.

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But Paraline gave us some wrong answers.

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One wrong answer is a trivial amount.

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I don't believe that that is part of Paraline's holding, first of all.

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So several things on the district, or sorry, on Supreme Court's discussion of trivial.

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First of all, that discussion is in a section of the opinion that is not essential to the holding of Paraline, which was on causation.

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That was what- So you think the district court could have

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made the calculation that the Chief Justice made in dissent and said there's 71,000 images won over 71,000, I'm awarding $47.

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That would be lawful.

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And I'll explain why.

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One, because there's nothing in 2259 to prevent that.

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Two,

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To be clear, that calculation that the Chief Justice did was not the Chief Justice's calculation.

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It was Amy's calculation.

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I understand, but he embraced it and the majority seemed to disagree.

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I don't believe that the majority disagreed with that particular calculation.

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What would be a trivial award?

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So I think trivial is relative.

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If someone steals $2 from me and the court awards me $2 in restitution, though it's a low amount,

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It accurately reflects the damage that I've – sorry, not that I've caused, that I've been caused.

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So if $47 is an accurate representation of the damage caused by Mr. Manziel, then it's not trivial in context.

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In context, it's 100 percent.

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that each viewing re-victimizes Amy and others.

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And so it does seem to me trivial and unhinged from that determination to say that, okay, the trauma caused, reignited by each viewing,

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It was $47.

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No one can say that about this type of trauma, can they?

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Amy says that about this type of trauma.

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No, no, she just said, look, here's a consequence of an approach.

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She didn't say.

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She said that is the consequence of the approach that was ultimately adopted by the students.

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She did not say, I only suffer $47 worth of damage on each view.

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I believe that that is exactly what her representation is.

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It's essentially a warning to the Supreme Court, because to be clear, if we step back in the context of how her statement was made, she was asking the court to adopt the Joint Civil Liability

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causation standard and have each defendant responsible for her full amount of damages.

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And so she said to the district court, if you adopt the proximate causation standard, this is the implication of that.

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Because any... She said that this could be the implication of adopting a legal argument with which I...

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disagree.

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That is not the same thing as saying, I acknowledge that I was only $47 damaged by each individual possessor.

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That's what I thought you were saying.

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I do believe that that is an acknowledgement.

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If you look at how many, she has a static

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a static damage assessment.

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So her static damages are $3.2 million.

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That is the assessment of the damages she will experience until she is 80, essentially.

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Let me ask you, where can we find that?

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Because that would be an abrupt shift in her position, and I'd like to be clear about that.

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Where can you find

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She did not appear in this case.

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I understand that, but you made a representation in response to Judge Millett.

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Oh, I only meant to say that that was my interpretation of her representation in the

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in the court.

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We don't know what she was seeking in this case because... Well, we actually do, don't we?

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Because this case has been here many times, and the district court judge has been on this case for, what, eight years?

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Yes.

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So Amy has made representations in formal filings before the court.

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Yes, she has.

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And in fact, she made the representation in the Monzell II briefing that the government's won over

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N calculation was a fiction, and that she was being damaged by far more people than just the NN that was represented.

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But to be clear, Amy, this is the third time that we're before this court.

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This is the first time that we're before this court without a representative from Amy.

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There was no representative speaking on Amy's behalf in this particular remand.

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So yes, as far as we know,

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We know that Amy has requested the full amount of her damages, which Caroline says that she cannot receive, and we know that Amy has otherwise requested $150,000 in damages in accordance with Masha's law, which this Court has also rejected and which the District Court rejected.

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But we don't really have an actual request in this case.

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Whereas, if you do look at examining the other district court cases, victims often make a more specific request.

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The government often makes, almost routinely makes a specific request.

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Well, let me ask you that.

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You argue that it's a conditional award in that the government has a burden of proof.

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Yes.

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And you interpret that, as I understand it, to require the government to tell the district

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We think the appropriate amount is a specific dollar amount.

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Or maybe a range.

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I think that the government, there are two prongs to the government's burden.

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The government, it's a statutory burden.

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The statute says that the government must demonstrate the amount.

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And in order to do so, I think the government has, again, there's two prongs.

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The government must provide evidence and data.

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And it also must provide a methodology.

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Now, is the fact that the government alone, is the fact alone that the government didn't provide an amount necessary or sufficient here?

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No.

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But there is not evidence and data especially, and I can't be clear about this, disaggregating the losses caused by

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Amy's uncle in the initial abuse and the initial distribution, and also desegregating the losses caused by distributors versus viewers.

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And Mr. Manziel here was only a viewer of one image, which means that he is the very least culpable in comparison to the rest of the thousands of offenders.

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How do you desegregate that?

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In other cases, there have been expert reports, psychologists who will interview the victim.

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And to be clear, this would only have to be done one time.

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This is not something that would have to be done over and over again so that it would be a burden on the victim or the government.

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But in other cases in the district courts, I think Olivier is one of them.

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There's other cases where a psychologist has reviewed the reports, has interviewed the

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the victim and has made an assessment.

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So are you familiar enough with the record in this case to know that there is no such assessment in this case?

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Yes, yes.

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And that is one of the greatest flaws that we find in the government's evidence.

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I want to go back.

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How is a therapist with any real scientific certitude going to disaggregate a lifetime of therapy that goes up and down, or needs go up and down based on

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stressors in her life, learning more about exposure.

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How is anyone supposed to say, aha, let's see, five years' worth of therapy for possessors, possessors, kind of for distributors?

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I don't think that it's like that.

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Judge Millett, I think in the case of Olivieri, with the

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What the psychologist did was say, I think 50 percent of this victim's damages are caused by the initial abuse and the initial distribution.

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What I'm hearing from her is that she's... They're just interrelated.

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I don't know.

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They're segregable.

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Well, it certainly wouldn't have...

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occurred but for the abuse.

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And if someone's suffering because of the abuse, then that damage is certainly different than the damage caused by a single abuse.

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But we're not doing but for causation here.

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We're not doing but for.

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We're doing approximately causation here.

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Absolutely.

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Absolutely.

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We do not argue but for causation.

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We are simply arguing that you would have to take out the amount of

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the amount of damages that the initial abuse caused her.

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And I think everyone would agree that that is the real impetus here.

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But let me ask you, given the record in this case where there are these interviews of Amy, where there are at least some status reports where she's recovered, she's relapsed, that type of thing, and there's certainly enough description of the uncle versus other types

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Isn't there enough of a district court in applying the paradigm factors to take into account that your client was not a distributor?

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He possessed one photograph.

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And do it that way, because even you acknowledge that, as I understand it, you call an expert, the other side calls another expert.

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Judge Millett's questions are getting to the heart of what we're trying to do.

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And the problem, it seems to me, that everybody's been struggling with, in this case, is the statute.

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And the Supreme Court, it seems to me, struggled too.

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But following the majority opinion, why isn't what happened here exactly what the Supreme Court contemplated would happen, given that we know that very bright jurists can come up with all kinds of different theories about a better way to do something

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Well, we don't know what the district court's theory was.

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We have no way of knowing where she got the $7,500 figure.

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So what would you have expected her to do?

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I would have expected.

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Have an actuarial table, something that specific?

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No, I would have expected her to do something similar to what Amy did.

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I do think that that

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And to what we proposed to her.

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But she said she had acknowledged that $5,000 was less than the damage.

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She had already made that finding.

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But this court found that essentially she couldn't make that finding.

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It was based on no evidence in the record.

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And so it went back.

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And the government said, well, we can't provide certain types of evidence.

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And we challenged that assertion.

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That is simply untrue.

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Well, I suppose if they stopped everything else they were doing and did very

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I didn't stop everything else I was doing, I simply looked at Amy's brief and I took the figures from there.

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So it wasn't there before the district court?

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Right, but it wasn't there with the government's imprimatur.

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The fact that the government came... Why does it have to be the government's informatory?

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That's not evidence.

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I would say that that's the way we were harmed.

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The court didn't even... We put all of that information in front of the court and the court didn't even acknowledge it.

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All she said about...

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about those particular factors were that the government said that it can't come up with anything, and I accept that.

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Nothing in the Supreme Court said they have to.

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They said, well, maybe you can try these numbers or that numbers.

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But what else is this?

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Just to be clear, I'm really interested if you have been able to find, how is it at all knowable how many

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visual abusers are, how many people are going to look at her, have looked, and are going to look at her photograph.

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It is not knowable, the Supreme Court... It's not knowable.

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It is not knowable.

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It is estimatable.

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It is... That is why the Supreme Court... It seems like it's guessable is what it seems, not estimable.

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I don't believe it's... It's guessable if you pick a number out of the air.

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That's arbitrary.

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I'm picking a number out of the air.

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An estimate or a prediction based on underlying data is

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may not be precise.

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That's not precise.

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What underlying data?

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No one knows.

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No one knows in an internet era how many people

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are looking at these photos.

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And to say that you can tell based on arrests how many people are doing it seems to me a wink and a nod, because that's who we happen to catch.

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It's an international problem, as you've said.

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Essentially, yes, but all that is is an admission that anything that we would come up with would grossly, grossly

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underestimate the damages that is out there.

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Not the damages.

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It would underestimate the number of people who are damaging her.

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It's underestimating the number of people who are damaging her.

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But if you take seriously, as I do her statement, that each view is a revictimization of her.

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Every time she knows that someone is viewing it, it's a revictimization.

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It brings the whole episode back and causes concerns about

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also being used to hurt, you know, these images being used to hurt other people, that type of pain, then I don't know how we can dismiss that just based on a, well, you know, the more people that are hurting you, the less anybody, oh, as if each person's view is in fact inflicting serious harm.

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But again, she only has a defined universe of harm.

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And if you allow courts to do what the district court did, then what you're doing is allowing other offenders down the line, once she is made whole, to pay no restitution whatsoever.

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And the Paraline opinion recognizes that.

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In fact, it recognizes that explicitly.

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It says- Are you aware of any victims who have been completely

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compensated so there's nobody who's still having to pay?

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There are.

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Tara, which is one of the victims in this case, she withdrew her request for restitution early on in the proceedings because she had been made whole.

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Vicki, there is one opinion in the district court that denies her restitution because it found that she had been made whole.

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There are victims that don't seek restitution anymore because they have been made whole.

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Yes, there are instances.

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It just seems that you've got so many perpetrators.

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No one knows who's going to get arrested.

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No one knows who's going to get arrested and convicted.

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No one knows who's going to get arrested, convicted, and have the money to pay.

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And maybe somebody gets, it's not even the right word, but fortunate in this very narrow sense that somebody gets arrested who's really wealthy and pays it off.

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But that seems to me

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you have to factor into that big number you have, who's going to get caught within our jurisdiction and ever have the resources to pay and actually pay.

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But that's antithetical to Paraline.

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Paraline's essential holding, the essential holding of Paraline

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is that someone could not be held liable for damages that he did not proximately cause.

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And that were proximately caused by thousands and thousands of others.

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Do you disagree that the proximate harm that your client caused is that each view was a re-victimization?

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Another thing that, earlier on you said that, and when she finds out.

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I don't disagree with that, but if the court – that statement was accepted in this – in Paraline.

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It was in the Paraline's majority, I believe.

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But yet the Paraline majority rejected what Amy was asking for, which was her entire damages.

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If you buy that, that essentially each view, it causes her entire loss amount, then we wouldn't have had Paraline.

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Then Amy would have won.

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Would you agree that if we actually were able to come up with a number of everybody in the

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who's seen these, that we're not even talking $47.

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We'd be lucky to be talking a penny.

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I would absolutely agree.

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I would absolutely agree.

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Now, should the perfect be the enemy of the good?

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No.

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We're here because $7,500 is wrong.

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So it's a penny or less than a penny?

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If you were asking me, what do I think a correct calculation under a parallel line would be?

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I think that that is, we did calculations, it may be, it may not be a penny, it may be 16 cents or something.

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You can't be counting everybody.

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You can't possibly be counting everybody then.

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Right, right, no that's true, that's true.

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So if you're asking me what is the perfect, then I will say that.

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If you ask me what is the good, I say not $7,500.

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But how, well how is someone supposed to decide

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between a penny or less than a penny and $7,500?

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Well, we have to examine the methodology, and we don't have that here.

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What methodology are you proposing?

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I thought you were proposing a methodology that leaves it at a penny or less.

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I'm proposing a methodology.

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That is the methodology that I think is correct.

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So we should drop something incorrect?

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The only thing in parallel that would undermine that is

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the, I think, internally inconsistent and dicta suggestion that if a court comes up with that analysis, does exactly what Paraline says and says, let's determine what this person's aggregate, or sorry, a portion share of damages are, accepting this aggregate causation model that the Supreme Court adopted in Paraline, and the court comes up with 16 cents, $47,

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And then is the court, based on what is the court supposed to look at to artificially and arbitrarily rate that number?

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You're telling us that it can't be 7,500.

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Yes.

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And that under the model you think is the correct one, if I heard you say that, it will be a penny or less.

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So I don't understand how then you can go, well, I get that.

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Nobody likes that.

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But it sure can't be 7,500.

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We have to have a basis for reversal

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for some basis of reversal here, and I don't know how something less than $7,500 is any more directionless than you describe the government's actions in this case.

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My proposal, first of all, we don't have the burden of proof in this case.

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The government does.

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And my suggestion, you don't have to accept my suggestion.

[00:22:39] Speaker 06:
So not in the district court, but on appeal, you're trying to overturn the district court's decision here.

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So it's your job to identify what the district court did wrong.

[00:22:48] Speaker 06:
And if what they did wrong was not use

[00:22:51] Speaker 06:
A methodology leads to a penny.

[00:22:53] Speaker 02:
No.

[00:22:54] Speaker 02:
What the district court wrong is fail to identify any methodology.

[00:22:59] Speaker 02:
Fail to, there's numerous factual inconsistencies.

[00:23:02] Speaker 06:
Didn't the Supreme Court say you don't have to have a particular methodology?

[00:23:05] Speaker 02:
Methodologies aren't evidence.

[00:23:08] Speaker 02:
No, but how, the Supreme Court didn't say that you don't have to have a particular methodology at all.

[00:23:12] Speaker 02:
Did it say you have to have a methodology?

[00:23:16] Speaker 02:
I didn't read it that way.

[00:23:17] Speaker 02:
This decree in court rejects arbitrariness.

[00:23:18] Speaker 02:
So I would imagine the only way to be non-arbitrary would be to employ a methodology.

[00:23:25] Speaker 02:
Now, if we're using the word methodology as synonymous with a mathematical equation, then I don't think that those two necessarily are synonymous.

[00:23:37] Speaker 02:
So the court said that you don't have to use a precise mathematical equation.

[00:23:42] Speaker 02:
It also said you need not

[00:23:45] Speaker 02:
use a rigid formula, if doing so would result in these trivial restitution awards.

[00:23:52] Speaker 02:
And again, I believe that that statement is internally inconsistent with the actual holding of Paraline and that this is dicta.

[00:24:02] Speaker 06:
You've said a number of times dicta.

[00:24:04] Speaker 06:
Yes.

[00:24:05] Speaker 06:
Do you believe everything in that opinion that came after proximate causes the test is dicta?

[00:24:11] Speaker 02:
I think that starting

[00:24:14] Speaker 02:
essentially at head note 18 is dicta, that is... So is that everything in the opinion other than the finding the proximate cause is the governing legal standard?

[00:24:24] Speaker 02:
No.

[00:24:25] Speaker 02:
Well, and if I can explain why... So that's all of the fact and factor tests they set out.

[00:24:34] Speaker 00:
That's all dicta.

[00:24:35] Speaker 02:
Yes.

[00:24:35] Speaker 02:
Well, I think that's a suggestion.

[00:24:38] Speaker 02:
Certainly.

[00:24:39] Speaker 02:
It's not part of the – I don't believe it's part of the holding.

[00:24:41] Speaker 02:
And to be clear, the – wait, I just want to – I'm sorry.

[00:24:44] Speaker 06:
I really do want to make sure I'm absolutely reading you correctly.

[00:24:47] Speaker 06:
Everything other than the determination, the proximate cause is a legal test.

[00:24:52] Speaker 06:
All the analysis of, well, how does one apply proximate cause?

[00:24:56] Speaker 02:
No, no, no, no.

[00:24:57] Speaker 02:
That's within the holding.

[00:24:58] Speaker 06:
Okay, but I misunderstood you.

[00:25:00] Speaker 06:
So where?

[00:25:01] Speaker 02:
So how does one apply the proximate cause test, which gets into the adoption of the aggregate causation model?

[00:25:08] Speaker 02:
So I would say head note 18 in the parallel line opinion.

[00:25:14] Speaker 02:
To be clear, I don't know.

[00:25:16] Speaker 06:
We're holding that it can't be a token or nominal amount.

[00:25:18] Speaker 06:
That's a holding.

[00:25:20] Speaker 00:
I'm sorry, when you say 18, that's the paragraph that begins.

[00:25:24] Speaker 00:
There remains the question.

[00:25:25] Speaker 06:
There remains the question of how.

[00:25:28] Speaker 06:
And right a few lines before that is where we say it would not, however, be a token or nominal amount.

[00:25:32] Speaker 06:
Yes, and so.

[00:25:33] Speaker 06:
So that's holding binding on us.

[00:25:36] Speaker 02:
Token or nominal.

[00:25:40] Speaker 02:
There are aspects of things above 18 that certainly aren't necessary to the court's opinion.

[00:25:46] Speaker 02:
But if you're asking them to try to find a demarcation.

[00:25:50] Speaker 06:
any analysis that's interval to its holding.

[00:25:52] Speaker 06:
Interval to its holding, yes.

[00:25:54] Speaker 06:
Right?

[00:25:54] Speaker 06:
And so they're describing what proximate causation means, because proximate causation is legal causation, and they're explaining what it means in this context, and it means not trivial amounts, and it has to be an amount that's going to press upon offenders, the child pornography offenders

[00:26:09] Speaker 06:
have, you know, are creating real victims.

[00:26:12] Speaker 06:
Is a penny going to impress on anybody that they've really victimized somebody?

[00:26:15] Speaker 02:
It does not, it does not have to impress upon, the amount does not have to impress upon offenders.

[00:26:20] Speaker 02:
That is not anywhere in 2259.

[00:26:23] Speaker 06:
That is not one of the... I'm talking about what Supreme Court's told me before heading 18, heading keynote 18, and the sentence right before that is...

[00:26:31] Speaker 06:
Congress's aim under the statute, the whole point of this and the point of the legal causation here is to impress upon defenders they've made real victims.

[00:26:45] Speaker 02:
The fact that these people are serving incarceratory sentences of well over 10 years in most circumstances, I think, would impress upon them that they are real victims.

[00:26:54] Speaker 06:
But before it said the restitution calculation under our proximate cause test that we're adopting must make real the victims to them.

[00:27:05] Speaker 02:
But it also says that you cannot – the essential holding is that – it says Congress has promised victims – So that's dictated to you?

[00:27:12] Speaker 06:
Excuse me?

[00:27:12] Speaker 06:
Is that all dictated to you?

[00:27:14] Speaker 02:
No, I mean, this is a reversion back to its essential holding, where it says that Congress has promised victims full and – or has not promised victims full and swift restitution at all cost.

[00:27:27] Speaker 02:
To be sure, the statute states a strong restitutionary purpose, but the purpose cannot be twisted into a license to hold a defendant liable for an amount drastically out of proportion to his own individual causal relationship to this holding.

[00:27:40] Speaker 02:
So that's holding, but this is not.

[00:27:41] Speaker 02:
It's a reiteration of the holding.

[00:27:44] Speaker 00:
Can I ask you about another part of the opinion, which is the court says, in considering this question of the relevant denominator and how much you spread the losses, the court says that you should do that in a way that enables the victim to someday collect restitution for all of her losses, right?

[00:28:14] Speaker 00:
Where is that, Your Honor?

[00:28:18] Speaker 00:
That's on 462, right before letter C, the last paragraph in B. And I mean, if you use the denominator that you want to use that's key to

[00:28:37] Speaker 00:
number of viewers, number of images, whatever it is, in a world where everyone agrees most of the viewers will never be caught, no victim will be able to be made whole.

[00:28:51] Speaker 02:
But the court itself says that you need to take into account people who, of course, will not be caught and convicted.

[00:28:58] Speaker 02:
Those are the court's words.

[00:29:01] Speaker 00:
It seems, I agree with you, there's a lot of tension in here.

[00:29:05] Speaker 03:
Yes.

[00:29:05] Speaker 00:
But this is a pretty specific, it seems like a pretty specific directive to pick a denominator that's going to enable some ultra vigilant victim who wants to sue everyone in the world who might be convicted to be made whole.

[00:29:25] Speaker 02:
But the very next part of that sentence is, but it makes sense to spread payment among the larger number of offenders in amounts more closely proportional to their respective causal roles and their own circumstances so that more are made aware through the concrete mechanism of restitution of the impact of child pornography possession.

[00:29:47] Speaker 06:
When you think the reality of this, the reality of this opinion is, it's on the one hand, on the other hand, and I get you, you're serving your client well by citing the portions that favor your client.

[00:30:01] Speaker 06:
But there's plenty, you have to acknowledge there's plenty of other language for every

[00:30:06] Speaker 06:
don't do this to defendants, but make sure you do this for victims.

[00:30:10] Speaker 06:
That's just how this opinion is written.

[00:30:12] Speaker 02:
I understand there's a reason, and Your Honor, I believe that there's a reason for that, and that's what I don't want to leave her without saying.

[00:30:17] Speaker 02:
It is in my briefs.

[00:30:18] Speaker 02:
But this issue as to how to determine the amount of restitution was not briefed, fully briefed, by the parties.

[00:30:26] Speaker 02:
The government's brief

[00:30:28] Speaker 06:
spent a paragraph at the very end of its brief on this issue.

[00:30:50] Speaker 06:
But then taking it as a whole, it seems to me it's meant to tell what we mean by proximate causation.

[00:30:55] Speaker 06:
None of it may be dictated because it may be saying, here's what we mean by proximate causation, which is a legal conception.

[00:31:04] Speaker 06:
And what we mean by proximate causation is balance these concerns.

[00:31:10] Speaker 06:
Balance the concerns about making sure that we are attributing to defendants responsibility for what they have done and charging them for it.

[00:31:20] Speaker 06:
and making them realize the costs of their activities.

[00:31:27] Speaker 06:
And doing our best to make victims whole may not be perfect for either side in this process.

[00:31:35] Speaker 06:
And it seems to me what the district court did here was take these factors, went through the factors, acknowledged the minor role, and

[00:31:45] Speaker 06:
came up with an assessment.

[00:31:46] Speaker 06:
And I'm having trouble understanding what legal error we can point to in the district court's analysis.

[00:31:53] Speaker 06:
There is no analysis.

[00:31:54] Speaker 02:
The district court didn't engage in analysis.

[00:31:56] Speaker 06:
The district court went through the Paraline factors, went through and found, as Paraline says, what type of role did this defendant have, and continued from the prior finding.

[00:32:07] Speaker 06:
She previously found that $5,000 is too little.

[00:32:12] Speaker 02:
based on her own admission, that she specifically said that this is $5,000 in nominal damages, and then cited the definition of nominal being not small, but where there is not evidence in the record.

[00:32:28] Speaker 06:
She said her damages are more than this.

[00:32:30] Speaker 06:
She said this underestimates her damages.

[00:32:32] Speaker 06:
And so if we take that as law of the case, I get that you can dispute it, but if we take that as law of the case,

[00:32:41] Speaker 06:
or factual finding, then what did she do wrong?

[00:32:45] Speaker 02:
But this court told her to start to address the restitution issue anew.

[00:32:52] Speaker 02:
It vacated that award and said, recalculate a new.

[00:32:57] Speaker 06:
Because what she had said is, it's more than 5,000, but I can't figure out what it is.

[00:33:03] Speaker 06:
And we said, stop.

[00:33:04] Speaker 06:
You can't give someone less than what you've said they're entitled to, and you have said they're entitled to more than 5,000.

[00:33:11] Speaker 06:
You can't give her

[00:33:12] Speaker 06:
less than what you know she's entitled to, so go back and do it again."

[00:33:17] Speaker 06:
That doesn't vitiate her determination that the damages were more than $5,000.

[00:33:22] Speaker 06:
But that's baseless.

[00:33:23] Speaker 06:
And she admits that it's baseless.

[00:33:25] Speaker 02:
She said that there was no evidence in the record for her to come to this conclusion.

[00:33:28] Speaker 06:
I don't think the district court's admitting that it's baseless because the district court's now given $7,500.

[00:33:32] Speaker 06:
If you can point to me where the district court says, I admit this is a baseless amount, I will

[00:33:37] Speaker 02:
I think on remand after Manziel 1 when she ordered zero and said that the government didn't meet its burden and there was no way for her to calculate damages, I think that is exactly what happened.

[00:33:48] Speaker 02:
That was all pre-paraline.

[00:33:49] Speaker 06:
Now she's gone back, she's read the Supreme Court decision like we have, and she's gone through the factors the Supreme Court gave there.

[00:33:55] Speaker 02:
And she accepted factual, so if we're looking at specific errors, she accepted factual representations which are clearly erroneous.

[00:34:04] Speaker 02:
She also, and she came to a conclusion that is substantively erroneous based, if we just look at factual findings that the Paraline opinion takes into account, 11 times in Paraline, the majority says that Amy has been damaged by thousands and thousands of individuals.

[00:34:25] Speaker 02:
that cannot be squared with an award of $7,500, which would only mean that she's only been damaged by 400 and some odd individuals.

[00:34:37] Speaker 02:
It is inconsistent with the

[00:34:41] Speaker 02:
essential holding of Paraline, which if you strip everything away, the essential holding of Paraline is that a defendant cannot be held liable for damages that he did not proximately cause.

[00:34:53] Speaker 04:
Why don't we hear from the government and we'll give you some time in the middle.

[00:35:05] Speaker 01:
Good morning, Your Honor.

[00:35:06] Speaker 01:
May it please the Court, Eric Hansford for the United States.

[00:35:10] Speaker 01:
The district court did not abuse its discretion in concluding that the $7,500 award here represented the relative causal role of the defendant in causing Amy's harm.

[00:35:22] Speaker 01:
The district court recognized the correct law, recognized that paroling was now the law, consulted the appropriate factors, and picked a number that's in line with what other courts have awarded.

[00:35:34] Speaker 00:
What do you think was the district court's reasoning?

[00:35:38] Speaker 01:
So I think the district court's reasoning is exactly what Parolin suggested district court should do, which is start with.

[00:35:45] Speaker 01:
by trying to figure out the aggregate losses, then go through those seven harrowing factors that the Supreme Court suggested district courts could go through, and then consult other awards, which the district court did here.

[00:35:59] Speaker 01:
So I think the district court did go through.

[00:36:02] Speaker 00:
District court checks boxes, but it says at the end of its analysis, $7,500 is a reasonable award because, fill in the blank,

[00:36:14] Speaker 00:
I'm having trouble filling in the blank.

[00:36:18] Speaker 00:
Unless it's this here are five random awards and I'm averaging the point.

[00:36:23] Speaker 01:
So I'd say two things.

[00:36:25] Speaker 01:
First is I think that it's unfair to the district court here to suggest that

[00:36:30] Speaker 01:
the district court was just picking five random awards and averaging it.

[00:36:34] Speaker 01:
Judge Kessler had been dealing with this case for eight years.

[00:36:38] Speaker 00:
Is there any reason to think that those awards reflect similar cases?

[00:36:46] Speaker 01:
I think the court has to look at the full record, which includes the lengthy transcript of the hearing that the district court held here.

[00:36:57] Speaker 01:
The district court is engaging with the defense on

[00:37:01] Speaker 01:
and the government on all of these issues.

[00:37:04] Speaker 01:
And so I think the court can't just look at the district court's opinion and think that's the entirety of the district court's reasoning here.

[00:37:11] Speaker 01:
And those five opinions that the district court cited, those were five of the 16 or so opinions that the government had cited in its brief.

[00:37:23] Speaker 01:
It's not clear why it is that the district court thought those five opinions were compelling as to

[00:37:31] Speaker 00:
I mean, if you were doing a criminal sentence for, I don't know, robbery, and the district court says, well, here are five robbery cases where the sentences have been five years, 10 years, 15 years, 20 years, 25 years, CED those five, I'm sentencing at 15.

[00:37:57] Speaker 00:
Would that be sufficiently reasoned?

[00:38:01] Speaker 01:
Yes, as long as the district courts also going through the 3553 a factors, which I think that the district court did go through the parallel of that in terms of the.

[00:38:14] Speaker 01:
the parallel factors.

[00:38:16] Speaker 00:
Well, but it really didn't, right?

[00:38:18] Speaker 00:
So take the first three factors, which all bear on what I'm thinking of as the denominator question.

[00:38:26] Speaker 00:
How many abusers are we talking about?

[00:38:29] Speaker 00:
District court says the number of past convictions is about 200, which would produce a substantially higher award than she awarded.

[00:38:40] Speaker 00:
And the district court said,

[00:38:42] Speaker 00:
There is no information on the broader number of past and future convictions and there is no information on the still broader number of total offenders out there in the world.

[00:39:00] Speaker 00:
And then no indication of how the 7,500 might be reasonably related to, she's analyzed all the factors

[00:39:12] Speaker 00:
But the award doesn't seem to link up to the smallest number.

[00:39:16] Speaker 00:
And it can't link up to the larger numbers, because she said there's no evidence on them.

[00:39:22] Speaker 00:
I mean, there's analysis of the factors, but it doesn't seem to connect to the bottom line.

[00:39:28] Speaker 01:
Well, so I think the Supreme Court in Parolin is saying there is no mathematical way to get to a single correct answer.

[00:39:37] Speaker 01:
Maybe.

[00:39:38] Speaker 00:
Maybe.

[00:39:39] Speaker 00:
But what if they're saying, I mean,

[00:39:41] Speaker 00:
There is part two of the opinion which says the ultimate question is the amount of harm approximately caused by this offense.

[00:39:51] Speaker 00:
Right.

[00:39:52] Speaker 00:
And if that were all there is, you would think that the relevant denominator is factor three, which is number of offenders in the world.

[00:40:04] Speaker 00:
And if this guy is, there's nothing to think he's worse.

[00:40:11] Speaker 00:
It's one image, no distribution, no attempt to contact the victim, et cetera.

[00:40:17] Speaker 00:
So he's one of however many offenders.

[00:40:21] Speaker 00:
We know there are thousands.

[00:40:23] Speaker 00:
So what's, if you're just trying to do what the court said was the legal,

[00:40:32] Speaker 00:
the relevant legal question in part two of the opinion.

[00:40:35] Speaker 00:
Why wouldn't you have to try to link the award to number of viewers?

[00:40:42] Speaker 01:
So I think that's what the dissent says in Parolin.

[00:40:44] Speaker 01:
But there's a reason it's the dissent.

[00:40:46] Speaker 01:
That is what the majority is rejecting as part of its opinion.

[00:40:52] Speaker 01:
That's why the dissent is so vehement that it should just be this $47 figure that Amy is suggesting.

[00:40:58] Speaker 01:
The majority is rejecting that.

[00:41:00] Speaker 01:
as your honor pointed out, the majority saying restitution should eventually make the victim whole.

[00:41:06] Speaker 01:
That's also in the portion of the opinion.

[00:41:09] Speaker 00:
And I just don't know how to reconcile those two, frankly.

[00:41:13] Speaker 00:
The court's broader reasoning seems to say that the relevant question

[00:41:21] Speaker 00:
is key to number of offenders.

[00:41:24] Speaker 00:
And that piece from the end of the analysis seems to say that it has to be key to number of convictions, because that's the only denominator that'll make the victim whole.

[00:41:35] Speaker 00:
So which do I follow?

[00:41:38] Speaker 01:
So I think it's that.

[00:41:40] Speaker 01:
I think what the Supreme Court is ultimately saying is this is inherently a discretionary question, that there's no formula that can get you to a correct answer.

[00:41:50] Speaker 01:
And so much as in sentencing, we have to defer to district courts.

[00:41:54] Speaker 01:
We may not know why a district court picks a sentence of 60 months or 66 months, and we don't have to go back and see and explain to ourselves why it is that the district court settled on that particular number.

[00:42:08] Speaker 01:
What we have to make sure of, just like in sentencing, is that the district court is recognizing the correct law,

[00:42:16] Speaker 01:
applying the factors that is supposed to be consulting and is giving a substantively reasonable answer, an answer that's in line with other opinions.

[00:42:26] Speaker 01:
We would note that four circuits have accepted the 1 over N method, which would have suggested a $16,000 award here, and the Fifth Circuit has

[00:42:36] Speaker 01:
adopted or accepted a modified 1 over N, which would have been 15,000 or 14,000 here.

[00:42:44] Speaker 01:
So these awards are very much in line with what other circuits are.

[00:42:47] Speaker 04:
In other words, one of the reasons we have sentencing guidelines is to limit discretion.

[00:42:54] Speaker 04:
So I wonder if you can raise that sentencing argument.

[00:42:58] Speaker 04:
Here, there's this proximate cause standard.

[00:43:02] Speaker 04:
So it's a little different.

[00:43:05] Speaker 04:
It seems to me, then, a judge who the person's already been convicted of no practical cause issued.

[00:43:10] Speaker 04:
It's just, who is this defendant?

[00:43:12] Speaker 04:
What do I think about him?

[00:43:14] Speaker 04:
And because of the disparate sentences, we now have sentencing guidelines.

[00:43:20] Speaker 04:
They're now advisory only.

[00:43:22] Speaker 04:
But what I'm trying to understand is if the award can't be arbitrary, is the Supreme Court simply saying, so long as the district court

[00:43:34] Speaker 04:
acknowledges that it has considered these factors, then we will rely on the good judgment of the district court.

[00:43:48] Speaker 01:
I think that's generally what the Supreme Court's saying.

[00:43:51] Speaker 04:
So if that's true, then why aren't we headed toward the same situation that led to the sentencing guidelines, where you have a judge in Oregon who

[00:44:04] Speaker 04:
awards $50,000, and a judge in New Jersey who awards six cents.

[00:44:13] Speaker 04:
And then in DC, 7,500.

[00:44:15] Speaker 04:
All of this difference, and I know defendants are different, but if you go through these factors, anybody who just possessed one image and was not involved in the distribution or all of the other aspects of this,

[00:44:35] Speaker 04:
and you're back at Judge Millett's point about each image is a re-victimization, then does there need to be some understanding?

[00:44:47] Speaker 04:
And what I thought the district court might have been doing, and she started out this way, as you know, is looking around the country to see what district court judges are doing in these cases to try to figure out

[00:45:02] Speaker 04:
What is a sensible approach here?

[00:45:05] Speaker 04:
Because there's so many unknowables.

[00:45:09] Speaker 04:
And the problem with that is unless the district court says that, and it's not simply averaging, but it's I'm trying to figure out what a reasonable district court considering these factors would do, there is never going to be, or in a rare case, this linkage.

[00:45:30] Speaker 04:
And is that required?

[00:45:32] Speaker 04:
to avoid arbitrariness?

[00:45:35] Speaker 01:
So I think there are a couple of checks on arbitrariness built into Parolin and also based on that recent amendment of the statute.

[00:45:45] Speaker 01:
So built into Parolin, Parolin does have some substantive limits.

[00:45:49] Speaker 01:
It can't be a trivial award.

[00:45:51] Speaker 01:
It can't be a severe award.

[00:45:53] Speaker 01:
And Parolin, at the end of the opinion, the opinion does encourage district courts to check on other

[00:46:00] Speaker 01:
district court opinions, what's being awarded elsewhere.

[00:46:03] Speaker 01:
And so I think that the 1 over N method, which has been upheld in four circuits plus the modified version in the Fifth Circuit, that's a suggestion of a reasonable method that is being applied.

[00:46:16] Speaker 06:
But you didn't give that to the district court here.

[00:46:18] Speaker 01:
What's that?

[00:46:18] Speaker 06:
You didn't give that number to the district court here.

[00:46:21] Speaker 01:
That had been given to the district court here in the Monzell

[00:46:26] Speaker 01:
I believe in the Monzell 2 briefing, either the Monzell 1 or the 1.

[00:46:29] Speaker 05:
And hasn't changed in the interim?

[00:46:32] Speaker 01:
The district court, I mean, the denominator had changed.

[00:46:37] Speaker 01:
But you didn't change it.

[00:46:39] Speaker 00:
We did not offer that number.

[00:46:40] Speaker 00:
I thought you took the position that the number was 197, I think, and that the district court should use it.

[00:46:48] Speaker 01:
We did not take that position in the very most recent

[00:46:52] Speaker 01:
briefing, we took the position that the number was 197, that that is the first paralleling factor that the district court should consult.

[00:47:02] Speaker 01:
But we did not offer the one over N formula, which the district court had already rejected.

[00:47:08] Speaker 00:
But the district court, I believe in that was the only number you gave that could have served as a denominator.

[00:47:17] Speaker 01:
I think that's right.

[00:47:18] Speaker 01:
And so the district court

[00:47:20] Speaker 01:
It would have been kind of simple division for the district court to find that number.

[00:47:24] Speaker 00:
So suppose hypothetically, on this set of facts, the district court had, in looking at all the factors, said, you know what, one thing I do have is these, is it NEMEC?

[00:47:43] Speaker 00:
It's these NEMEC statistics, and I know that there are

[00:47:49] Speaker 00:
about 5,500 cases where

[00:47:55] Speaker 00:
Actual investigations have produced identified images of Amy.

[00:48:03] Speaker 00:
So I'm going to use that number as my denominator.

[00:48:07] Speaker 00:
It's a very conservative estimate of the number of offenders in the world.

[00:48:14] Speaker 00:
I'm going to use that as my denominator.

[00:48:16] Speaker 00:
It obviously links up to this idea of proximate cause.

[00:48:21] Speaker 00:
And when you do the division, you get $600.

[00:48:25] Speaker 00:
District court awards $600.

[00:48:28] Speaker 00:
We're up on appeal.

[00:48:31] Speaker 00:
Are you going to defend on all of these same arguments?

[00:48:36] Speaker 00:
District court has discretion.

[00:48:37] Speaker 00:
It can pick factor one, two, or three for the denominator.

[00:48:41] Speaker 00:
There's no one right way to do it, so affirm.

[00:48:45] Speaker 01:
So to the best of my knowledge, we have not

[00:48:49] Speaker 01:
failed to defend a case like that.

[00:48:51] Speaker 00:
So why doesn't that lead you right into Judge Rogers' concern, which is 7,500 is fine, 600 is fine, notwithstanding the order of magnitude difference?

[00:49:09] Speaker 01:
First is I think that's not an ongoing problem, given the recent amendment of the statute.

[00:49:14] Speaker 01:
Congress has now set a floor of $3,000 on restitution awards.

[00:49:19] Speaker 00:
So I think that's going to be a recurring problem.

[00:49:23] Speaker 01:
Sure.

[00:49:23] Speaker 01:
There are certainly cases that are pending that would force the court.

[00:49:28] Speaker 01:
But I do think that what the Supreme Court is ultimately saying is that there's a range of discretion for district courts to apply.

[00:49:38] Speaker 01:
In some ways, we are in a free guidelines world where there isn't – there aren't fixed numbers.

[00:49:43] Speaker 01:
And so I think at that point, the district court does have – we just have to defer to district court's discretion.

[00:49:50] Speaker 06:
Do you believe the United States position that that denominator should include defenders from around the world?

[00:49:58] Speaker 06:
that the statute doesn't apply to, and there's no basis whatsoever to think the victims can go get compensation from them or should be expected to get restitution from them, or would it be the government's position that, look, this is a domestic criminal statute, and we're going to look at domestic offenders for the end?

[00:50:18] Speaker 06:
Because really, if you go international, I don't understand that.

[00:50:22] Speaker 06:
That completely throws overboard the concept that we have any hope of getting remotely

[00:50:28] Speaker 06:
near compensating these victims.

[00:50:30] Speaker 01:
Right, which I do think Parolin repeatedly says these victims should be fully compensated.

[00:50:35] Speaker 01:
So I do think that would be an issue.

[00:50:37] Speaker 06:
It's a domestic statute, so why wouldn't we look to domestic offenders from which there will be a legal regime to obtain restitution, in theory at least.

[00:50:46] Speaker 01:
Right.

[00:50:47] Speaker 01:
I do think that the Department of Justice will defend a variety of approaches that district courts would take on.

[00:50:54] Speaker 06:
No, no, you said defend a variety, but are you agreeing that you would defend

[00:50:58] Speaker 06:
looking around the world?

[00:51:00] Speaker 01:
So I haven't, I don't know the Department of Justice's specific position on that question.

[00:51:08] Speaker 01:
I do know that we will defend a variety of positions.

[00:51:11] Speaker 01:
I don't think that's normally what we're urging in the district courts, and we are arguing it is our.

[00:51:19] Speaker 06:
I had thought it included domestic arrested offenders.

[00:51:24] Speaker 06:
Does it include international offenders?

[00:51:26] Speaker 01:
So 1 over N is only for defendants who have been convicted in order to pay restitution to Amy.

[00:51:33] Speaker 06:
In the United States?

[00:51:34] Speaker 01:
In the United States.

[00:51:35] Speaker 06:
I don't know what other countries do.

[00:51:37] Speaker 06:
Maybe someone else orders it as well.

[00:51:39] Speaker 06:
I have no idea.

[00:51:40] Speaker 01:
Right.

[00:51:40] Speaker 01:
If there were other countries that were ordering restitution to Amy, then I think

[00:51:45] Speaker 01:
potentially that could have to be taken into account because she can't be recovering more than her total outstanding losses.

[00:51:53] Speaker 01:
The department's position is, and the new statute makes clear, once she actually collects her full outstanding losses, she cannot continue to collect restitution.

[00:52:04] Speaker 01:
So it could be that if there were international awards of restitution for the covered conduct, that would still be part of the same aggregate causal

[00:52:15] Speaker 01:
large number, 3.263 million.

[00:52:17] Speaker 06:
Do you think Paraline compels that?

[00:52:23] Speaker 01:
I don't... I think it's part of Paraline that the government's burden is... Part of Paraline can compel about anything.

[00:52:33] Speaker 01:
Sure, but Paraline says that what

[00:52:36] Speaker 01:
The government's burden, or when the district court has to award restitution, is when the defendant has the victim's images and the victim has outstanding losses caused by the trafficking in her image.

[00:52:46] Speaker 06:
And there's other Supreme Court cases that say we have criminal statutes.

[00:52:48] Speaker 06:
We presume they need to operate within domestic borders.

[00:52:52] Speaker 01:
Right, so.

[00:52:52] Speaker 06:
And that that is a framework within which Congress is acting.

[00:52:55] Speaker 01:
I think that's right.

[00:52:57] Speaker 01:
I certainly think this court does not have to resolve that question in this case, and it is the department's position that there is no way to estimate the number, the total number of offenders in the world in a reliable way, a reasonably reliable way.

[00:53:11] Speaker 01:
And Parolin even recognizes that possibility.

[00:53:14] Speaker 01:
It phrases it as any available and reasonably reliable.

[00:53:18] Speaker 00:
Would you take as a given

[00:53:21] Speaker 00:
Would you take as beyond reasonable dispute that the number of offenders in the United States numbers at least in the several thousands?

[00:53:31] Speaker 01:
I think Parolin says that as to Amy specifically, so yes.

[00:53:35] Speaker 00:
So then you either have to be willing to defend awards that will be an order of magnitude lower

[00:53:45] Speaker 00:
or you have to say that it's legal error to key the denominator to that number.

[00:53:53] Speaker 01:
I think that's right, and I do think... Well, so which is it?

[00:53:56] Speaker 00:
Would you defend that?

[00:53:58] Speaker 00:
Is that approach within the discretion permitted by paroling?

[00:54:06] Speaker 01:
I would think that that approach would be within the discretion permitted by Parolin.

[00:54:11] Speaker 00:
And I do the district district court says I don't know what the number is, but it's at least 5000.

[00:54:18] Speaker 00:
So I'm going to use 5000 as my denominator.

[00:54:21] Speaker 00:
That's that sentence.

[00:54:23] Speaker 00:
I haven't done that division, but that number would get affirmed.

[00:54:27] Speaker 01:
That is my my sense is that the department would would defend that calculation.

[00:54:34] Speaker 01:
And the defense does point to a case where there was a stipulated restitution amount, where the defense and the prosecution jointly agreed to it, that used that NCEMEC number as the divisor.

[00:54:47] Speaker 05:
Do you agree that number is relevant?

[00:54:49] Speaker 05:
That's about investigation.

[00:54:51] Speaker 05:
It's not an arrest number.

[00:54:53] Speaker 01:
So I do not think it is an appropriate

[00:54:58] Speaker 01:
If we were in the district court, we would not be arguing for that as a divisor.

[00:55:02] Speaker 05:
We would be arguing that it's wrong to use that.

[00:55:07] Speaker 01:
I think in the district court, we would be arguing that that would run into the problem of trying to fully compensate victims.

[00:55:16] Speaker 01:
That there are not going to be 5,000 people who are going to be paying Amy restitution.

[00:55:22] Speaker 01:
So using that as the divisor is not going to be making Amy whole.

[00:55:26] Speaker 01:
But whether we would defend that on appeal if the district court disagreed with us, I think is a question.

[00:55:31] Speaker 06:
Does the government agree that each view is a revictimization?

[00:55:37] Speaker 03:
Yes.

[00:55:38] Speaker 06:
Then I've been curious about why we're counting offenders, and no one bothered to ask how many times Mr. Manziel looked at this picture.

[00:55:48] Speaker 01:
I think that we don't have, there's no information in the record as to how many times he looked at the picture.

[00:55:54] Speaker 01:
I think it's unclear whether technology can always actually reflect that.

[00:56:00] Speaker 06:
But to the extent someone goes, well, it's justified by the number of offenders, that might not even be the best baseline because that's grossly underestimating the number of views.

[00:56:11] Speaker 01:
Right.

[00:56:12] Speaker 06:
So we're already undershooting with even the one end method.

[00:56:16] Speaker 01:
I think that is potentially true, right.

[00:56:19] Speaker 06:
And then I'm still trying to figure out, because it's my understanding of the space, the factual history here is that Amy had received treatment for the abuse by her uncle and sort of preteen or early teen years was doing better until she learned about the fact these images.

[00:56:40] Speaker 06:
are available through, I guess, the first notification about an offender who had been found with her images.

[00:56:46] Speaker 06:
And that sent a spiral down.

[00:56:49] Speaker 06:
So was that first person who was found to have viewed her images responsible for more than the one in?

[00:56:56] Speaker 06:
Because that's the one that sent her spiraling down.

[00:57:04] Speaker 01:
It would depend on the factual circumstances, and I don't know who that person is.

[00:57:08] Speaker 06:
Well, I'm talking about the very case.

[00:57:10] Speaker 06:
If we believe that each of you is a revictimization, it certainly seemed to happen.

[00:57:15] Speaker 06:
We have good evidence of that in this case, because she spiraled down upon learning that not only had she obviously been through the abuse she knew, but that, in fact, now these images are out there, and at least one person had looked at them.

[00:57:29] Speaker 06:
And that set off a whole new round of need for treatment and difficulties and problems in her life.

[00:57:37] Speaker 01:
Right.

[00:57:37] Speaker 01:
I think it's not entirely clear whether it's that one person looking at it or whether it's the knowledge that this is out there and likely to remain out there.

[00:57:48] Speaker 01:
I think it's more the latter.

[00:57:50] Speaker 01:
certainly as described in the Supreme Court's periling opinion, that it's the knowledge that this is out there.

[00:57:57] Speaker 01:
She can't know who has viewed this and that kind of fear about that.

[00:58:03] Speaker 01:
So it's the larger trafficking.

[00:58:04] Speaker 06:
Were you able to tell in cases how someone acquired, say, how Mr. Manziel or someone acquired her picture?

[00:58:11] Speaker 06:
They could acquire it by abusing some child and trading pictures themselves or trading or asking or whatever.

[00:58:20] Speaker 06:
You've seen, I'm sure we've seen all manner of horrific behavior designed to acquire more and more and feed the desire for these photos.

[00:58:28] Speaker 06:
Is there any information in this record about how he acquired it, how long he had it, anything like that?

[00:58:33] Speaker 01:
Not to the best of my knowledge.

[00:58:35] Speaker 06:
Do we know if he traded her image?

[00:58:38] Speaker 01:
So I think he did not, he was not charged for distributing her image.

[00:58:43] Speaker 06:
But he distributed other images.

[00:58:45] Speaker 06:
So if he got hers in a trade,

[00:58:48] Speaker 06:
He may not have traded her particular photo, but got it as part of his distribution process, trading something for it.

[00:58:55] Speaker 01:
I think we can just say that the record doesn't reflect how it is that he got her.

[00:59:00] Speaker 06:
I was just curious, because he had been charged with distribution, so I was curious how we knew that no distribution was involved with respect to her photo, because he had to do something to acquire it.

[00:59:08] Speaker 01:
Right.

[00:59:08] Speaker 01:
So I don't think we can say that he did not distribute her image.

[00:59:11] Speaker 01:
It's just that the record does not show that he did distribute her image.

[00:59:16] Speaker 01:
If there are no further questions, we would ask the court to affirm.

[00:59:19] Speaker 04:
Thank you.

[00:59:21] Speaker 02:
Councilor.

[00:59:24] Speaker 02:
Just very quickly, I wanted to make the point that concentrating only on identifiable or those defendants that are convicted really flies in the face, I think, of parallel essential holding and also ignores the fact that

[00:59:45] Speaker 02:
In the very little briefing on this issue, the very little briefing on this issue, the government did put forward factors that it felt courts could consider.

[00:59:55] Speaker 02:
It put together factors, and two of the factors that it did not include, but the Supreme Court specifically included to the government's list were, please consider future offenders, please consider the broad number of offenders, even those who will not be caught and convicted.

[01:00:11] Speaker 02:
So the Supreme Court

[01:00:13] Speaker 02:
considered the factors that the government had put forward, and added those two factors as suggestions for courts to consider.

[01:00:23] Speaker 02:
And to just ignore that aspect, which is repeated throughout its opinion, I think would be inconsistent with the essential holding of Paraline.

[01:00:36] Speaker 02:
Second, with respect to guidelines,

[01:00:39] Speaker 02:
By no means do I think an average, looking at what the average of wards of different courts have done, even with respect to Amy, because we don't know what methodology they used.

[01:00:50] Speaker 02:
We have no idea whether those were even

[01:00:55] Speaker 02:
awards that were litigated.

[01:00:56] Speaker 02:
But as a point of fact, Chief Justice Roberts in his dissent reports that pre-paraline the average award to Amy was $5,000, the average award.

[01:01:09] Speaker 02:
That includes awards that were

[01:01:12] Speaker 02:
of her full damage, because it was pre-paraline.

[01:01:16] Speaker 02:
So in this sense, we have Mr. Munzell, who possessed one image, did not distribute it, is among, per the district court's factual finding, the least culpable of defendants, and yet he is above, he somehow is above this national average.

[01:01:32] Speaker 02:
So again, I don't embrace the average, but as a point of fact.

[01:01:36] Speaker 06:
Do you agree that your client had to trade or pay something to come into possession of this image?

[01:01:40] Speaker 02:
Absolutely not.

[01:01:41] Speaker 02:
Absolutely not.

[01:01:41] Speaker 02:
These images are often posted on websites.

[01:01:48] Speaker 02:
There's websites, specific websites, where they are just posted and available for download.

[01:01:54] Speaker 02:
There does not need to be a trade for this.

[01:01:56] Speaker 02:
Are those free?

[01:01:56] Speaker 02:
Or does someone have to pay to get access to those?

[01:01:59] Speaker 02:
No.

[01:01:59] Speaker 02:
One of them is called LimeWire.

[01:02:02] Speaker 02:
No, they download them.

[01:02:04] Speaker 04:
And what's – what is very interesting about this – they're free?

[01:02:06] Speaker 04:
They're free?

[01:02:07] Speaker 04:
That was a question.

[01:02:07] Speaker 02:
Yes, yes.

[01:02:08] Speaker 02:
I mean, as far as I know, there's – I don't – certainly in this case, there is no evidence that there was any pay.

[01:02:13] Speaker 02:
But there's – or – I mean, that's one of the ways.

[01:02:16] Speaker 02:
I don't know that that's how he came into possession of this.

[01:02:18] Speaker 02:
We don't know.

[01:02:20] Speaker 02:
Sometimes they are just – like, there's two people talking on the internet, and one, because they're sad and lonely or trying to make friends with the other, sends his cache of child pornography.

[01:02:32] Speaker 02:
And to be clear, what happens is, really, it's a cache of child pornography.

[01:02:38] Speaker 02:
And there's really no way to know whether Mr. Monzell looked at any particular images or not.

[01:02:48] Speaker 02:
He had these images in his... Well, he viewed it every day for some reason.

[01:02:51] Speaker 02:
Yeah, we don't know.

[01:02:52] Speaker 02:
And it's not that he looked...

[01:02:55] Speaker 02:
I don't know this for a fact, but generally, the way these things happen is it's not like they're looking through a catalog and saying, I want that one, that one, that one.

[01:03:02] Speaker 02:
It's just this is the cache that I'm downloading, and this is what's available out there.

[01:03:08] Speaker 02:
So I want to be clear that this was the nature of what happened here.

[01:03:14] Speaker 06:
So it's to sound like they're not being all that impressed with the consequences of your child pornography crimes.

[01:03:19] Speaker 06:
It was just a cache of photos.

[01:03:21] Speaker 06:
She was one in there.

[01:03:22] Speaker 06:
Sounds like he's not so impressed, like I said, with the consequences of his crime like the Supreme Court said he should be.

[01:03:27] Speaker 06:
Well, he's certainly impressed by his incarceratory sentence.

[01:03:29] Speaker 06:
The Supreme Court said the restitution is meant to impress them with the real-world costs of their crime, the cost to a victim of their crime.

[01:03:39] Speaker 02:
It is one of the effects of a restitution or reward.

[01:03:43] Speaker 02:
Certainly, but 2259 is the statute that we were dealing with.

[01:03:48] Speaker 02:
But there's nothing in 2259.

[01:03:50] Speaker 02:
I mean, we've decided that it comes to the conclusion that there's a lot of internal inconsistencies in the Supreme Court's opinion in parallel.

[01:04:00] Speaker 02:
But again, there is one essential holding.

[01:04:02] Speaker 02:
And then there's also the statute, which specifically enumerates the categories of harm that

[01:04:09] Speaker 02:
a court is allowed to award, one of them is not punitive damages.

[01:04:13] Speaker 02:
It's not.

[01:04:14] Speaker 02:
There are specific categories.

[01:04:16] Speaker 02:
And it's harm that Amy alleges to be $3.2 million.

[01:04:24] Speaker 02:
Again, it's a confined universe.

[01:04:28] Speaker 02:
And so the last thing I would want to say is we did write a full, our brief in Manziel 2 was

[01:04:38] Speaker 02:
a full dissection of 1 over N. I hope that that is not what is at issue here, because that wasn't what was raised below.

[01:04:47] Speaker 02:
It wasn't what we concentrated our briefing on either below or here.

[01:04:52] Speaker 02:
I could go through a litany of issues with 1 over N, one being the fact that

[01:04:58] Speaker 02:
even though that number does not include convictions where a restitution award was not ordered for any number of reasons.

[01:05:06] Speaker 02:
One, because for whatever reason the victim withdrew her request.

[01:05:11] Speaker 02:
One, because the victim never made the request.

[01:05:13] Speaker 02:
You'll see in the record that Amy reports that she was notified of 733 cases involving

[01:05:21] Speaker 02:
her image and she only requested in a certain amount of cases.

[01:05:25] Speaker 02:
And one being outside settlements.

[01:05:28] Speaker 02:
So what happens is she'll come to a settlement with a defendant, they'll settle in their ward and then she'll withdraw her request in the criminal case.

[01:05:39] Speaker 02:
And so then there's no, that's not included in N. There's

[01:05:44] Speaker 02:
N doesn't include state cases.

[01:05:45] Speaker 02:
It's a federal case number.

[01:05:47] Speaker 02:
It's based on self-reporting by the DOJ.

[01:05:52] Speaker 02:
And the government below agreed that it was most likely an underestimate of even what they represent it to be.

[01:06:00] Speaker 02:
So if N is in any way a number that the court is considering to either judge the court's $7,500 award by or considering going forward,

[01:06:13] Speaker 02:
I would, I submit that we really haven't had the opportunity in this case to dissect N and that it shouldn't be something going forward because it is an absolute fiction.

[01:06:23] Speaker 06:
Let me just ask you clearly, there's this new statute, the Amy Vicki and Andy Child Pornography Act, which does that $3,000 baseline.

[01:06:32] Speaker 06:
Yes.

[01:06:33] Speaker 06:
Obviously, if it were $10,000 baseline, it couldn't be applied to your client under ex post facto principles, but because it's lower,

[01:06:44] Speaker 06:
Should that play any role in how we analyze this case?

[01:06:51] Speaker 06:
I'm not sure what to do with it.

[01:06:52] Speaker 06:
It may be a position we should just ignore.

[01:06:54] Speaker 02:
No, I mean, that $3,000 was set that if the

[01:07:01] Speaker 02:
There's no legislative history on this statute.

[01:07:03] Speaker 02:
There's no markup to the bill.

[01:07:06] Speaker 02:
It was passed by unanimous consent.

[01:07:07] Speaker 02:
I was asking what we should do with it.

[01:07:09] Speaker 02:
Well, I think that all it does is show that $3,000 was, Amy was at the table negotiating.

[01:07:17] Speaker 02:
setting the statute, that $3,000 was something that she accepted, and under... We don't have evidence for that.

[01:07:24] Speaker 06:
No, but we know that... Lots of people negotiate lots of things and it doesn't show up on a final bill.

[01:07:30] Speaker 02:
No, it's true, but we also know that there's a reason that Congress amended the statute, and it's because it allows for the awards that are lower than that.

[01:07:40] Speaker 02:
So this sets a base of $3,000.

[01:07:43] Speaker 02:
It does not apply to him going forward.

[01:07:46] Speaker 02:
But assuming that that is now the floor – a floor, again, he is at the floor.

[01:07:55] Speaker 02:
He should be at any floor, being the possessor of one image and who – with no other aggravating factors at all.

[01:08:04] Speaker 02:
Thank you.