Updated April 20
A victim in a child pornography case who is seeking nearly $3.3 million in restitution from the man caught with an image of her will get a second chance to try to convince a federal trial judge in Washington to award more than the $5,000 in compensation that was initially ordered.
The U.S. Court of Appeals for the D.C. Circuit today vacated the trial judge’s “nominal” $5,000 restitution award and sent the case back to the U.S. District Court for the District of Columbia for further proceedings.
The defendant, Michael Monzel, a former nurse, pleaded guilty in Washington federal district court in December 2009 to one count of distributing child pornography and one count of possession. The National Center for Missing and Exploited Children identified a victim—referred to as “Amy,” in court papers—in one of the images Monzel had in his possession.
Monzel’s attorneys said no more than $100 in restitution is appropriate because the government failed to show the portion of losses for which Monzel is liable, according to court records. The victim’s lawyers, former federal trial court judge Paul Cassell and James Marsh of White Plains, NY, said Monzel must pay the full amount in restitution.
D.C. Circuit Judges Douglas Ginsburg, Thomas Griffith and Judith Rogers said the record in the case does not establish that Monzel’s possession of the victim’s photo caused all of her losses. The appeals court, however, said the victim is entitled to more than the $5,000 Judge Gladys Kessler ordered.
“Monzel’s possession of a single image of Amy was neither a necessary nor a sufficient cause of all of her losses,” the appeals court said. “She would have suffered tremendously from her sexual abuse regardless of what Monzel did.”
The appeals court said Kessler must “order restitution equal to the amount of harm the government proves the defendant caused the victim.” Victims can receive restitution for, among other things, medical services, lost income, attorneys’ fees and rehabilitation.
The trial court noted in its opinion that the $5,000 was nominal and "less than the actual harm" that Monzel caused the victim. The trial judge, however, declined to provide more in restitution because the government and the victim's lawyers did not submit evidence as to what the losses were caused by Monzel's possession of the victim's image.
“We recognize, of course, that determining the dollar amount of a victim’s losses attributable to the defendant will often be difficult,” the appeals court said. “In a case such as this one, where the harm is ongoing and the number of offenders impossible to pinpoint, such a determination will inevitably involve some degree of approximation.”
The appeals court acknowledged there is little evidence in the record to guide Kessler once the case is back in front of her. “The burden is on the government to prove the amount of Amy’s losses Monzel caused,” the court said. “We expect the government will do more this time around to aid the district court.”
The D.C. Circuit declined to take a position on an appropriate amount of restitution.
Cassell, a lawyer for the victim, said this afternoon that the D.C. Circuit decision widens the divide among federal appellate courts over issues concerning the rights of crime victims. Among other things, Cassell said the decision places an "impossible burden" on crime victims and federal trial judges to sort out the cause of a victim's harm.
What you failed to stress is that the court openly admitted that the amount awarded was insufficient. And nowhere do I see a suggestion that Amy do something to prove her funny dollar demand
Posted by: Will Stell | April 20, 2011 at 11:28 AM