USA v. Block

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
WAYLEN SHERMAN BLOCK,
Defendant.
CR. 17-50068-JLV
ORDER
INTRODUCTION
Defendant Waylen Sherman Block pled guilty to one count of receipt of
child pornography by a previous sex offender in violation of 18 U.S.C.
§§ 2252A(a)(2)(A) and 2252A(b)(1). 	(Docket 64). 	The government moved the
court to order defendant to pay $47,000 in restitution to six victims of child
pornography. 	(Docket 68). 	The court sentenced defendant on August 10,
2018, but deferred its restitution order pending supplemental briefing regarding
the impact of defendant’s alleged indigence on the mandatory restitution.1
(Dockets 78 & 81). 	The parties submitted their supplemental briefs and this
matter became ripe for adjudication on October 9, 2018. 	(Dockets 83 & 85).
For the reasons given below, the court concludes it cannot order restitution in
this case and denies the government’s motion.
1 The parties agree defendant’s alleged indigence is irrelevant to the court’s
restitution determination. 	(Dockets 83 at pp. 1-2 & 85 at p. 1). 	The court
agrees. 	18 U.S.C. § 2259(b)(4).
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ANALYSIS
I. 	Government’s Motion for Restitution
The government seeks $47,000 in restitution from defendant for payment
to six child pornography victims. 	(Docket 68). 	Specifically, the government
seeks $12,000 for Angela, $10,000 for Violet, the victim of the “At School” child
pornography series, $10,000 for Lily, the victim of the “Vicky” series, and $5,000
each to Pia, Ava, and Mya, the victims of the “Sweet Sugar” series.2 	Id. 	The
government filed voluminous documentation about the harms suffered by each
victim to justify its request. 	See Dockets 68-1 – 68-5. 	The government,
arguing that defendant “both produced and distributed images of child
pornography,” suggests that an amount greater than $3,000 per victim is
appropriate. 	(Docket 83 at p. 3). 	Defendant argues the government produced
no evidence regarding the extent to which his conduct contributed “to the
proximate cause of each of the individual victim’s [sic] losses” and asks the court
to order $2,500 in restitution to Angela, Violet and Lily, with $1,250 to Pia, Ava,
and Mya. 	(Docket 85 at pp. 2-3).
II. 	Legal Standard3
“Under 18 U.S.C. § 2259(a), a district court shall order restitution for
offenses that involve the sexual exploitation of children and child pornography in
2 Each of these names are pseudonyms for the actual victims.
3 The court is aware a new statute revising 18 U.S.C. § 2259 was enacted in
December of 2018. 	See Amy, Vicky, and Andy Child Pornography Victim
Assistance Act of 2018, Pub. L. 115-299, 132 Stat. 4383 (Dec. 7, 2018).
Because the court concludes it cannot order restitution in this case, the court
need not determine whether the new statute applies retroactively to the
government’s restitution motion.
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particular.” 	United States v. Beckmann, 786 F.3d 672, 682 (8th Cir. 2015).
“The government bears the burden of proving the amount of restitution based on
a preponderance of the evidence.” 	United States v. Hoskins, 876 F.3d 942, 945
(8th Cir. 2017). 	The court must order restitution under this statute “only to the
extent that the defendant’s offense proximately caused the victim’s losses.”
Beckmann, 786 F.3d at 682. 	Losses a victim may have suffered include:
medical services relating to physical, psychiatric or psychological care; physical
and occupational therapy or rehabilitation; necessary transportation, temporary
housing and child care expenses; lost income; reasonable attorneys’ fees, as well
as other costs incurred; and any other relevant losses incurred by the victim.
18 U.S.C. § 2259(c)(2). 	The court “may not decline to issue an order” for
restitution based on “the economic circumstances of the defendant” or “the fact
that a victim has, or is entitled to, receive compensation for his or her injuries
from the proceeds of insurance or any other source.” 	18 U.S.C. § 2259(b)(4).
The Paroline Court “found that § 2259 did not require but-for causation,
and that restitution could be awarded in an amount ‘that comports with the
defendant’s relative role in the causal process that underlies the victim’s general
losses.’ ” 	Hoskins, 876 F.3d at 946 (quoting Paroline v. United States, 572 U.S.
434, 458 (2014)). 	To guide the district court’s causal analysis, the Court
explained:
There are a variety of factors district courts might consider in
determining 	a 	proper 	amount 	of 	restitution, 	and 	it 	is 	neither
necessary 	nor 	appropriate 	to 	prescribe 	a 	precise 	algorithm 	for
determining the proper restitution amount at this point in the law’s
development. 	Doing 	so 	would 	unduly 	constrain 	the
decisionmakers closest to the facts of any given case. 	But district
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courts might, as a starting point, determine the amount of the
victim’s 	losses 	caused 	by 	the 	continuing 	traffic 	in 	the 	victim’s
images . . . then set an award of restitution in consideration of
factors 	that 	bear 	on 	the 	relative 	causal 	significance 	of 	the
defendant’s conduct in producing those losses.
Paroline, 572 U.S. at 459-60 (internal citation omitted). 	The factors Paroline
provided as guidance include:
1. 	the 	number 	of 	past 	criminal 	defendants 	found 	to 	have
contributed to the victim’s general losses;
2. 	reasonable predictions of the number of future offenders likely
to be caught and convicted for crimes contributing to the
victim’s general losses;
3. 	any available and reasonably reliable estimate of the broader
number of offenders involved (most of whom will, of course,
never be caught or convicted);
4. 	whether the defendant reproduced or distributed images of
the victim;
5. 	whether 	the 	defendant 	had 	any 	connection 	to 	the 	initial
production of the images;
6. 	how many images of the victim the defendant possessed; and
7. 	other facts relevant to the defendant’s relative causal role.
Id. at 460 (numbering added and spacing altered for readability). 	Emphasizing
“[t]hese factors need not be converted into a rigid formula,” the Court stated they
should rather serve as rough guideposts for determining an amount
that fits the offense. 	The resulting amount fixed by the court would
be deemed the amount of the victim’s general losses that were the
‘proximate result of the offense’ for purposes of § 2259, and thus the
‘full amount’ of such losses that should be awarded.
Id.
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III. 	Lack of Evidence Defendant Possessed Images of Named Victims
Defendant pled guilty to one count of receipt of child pornography by a
previous sex offender. 	(Docket 64). 	As a part of his plea agreement, defendant
signed a factual basis statement describing his offense. 	(Docket 59). 	That
statement attributes “thousands of images of child pornography” to defendant
but does not specifically state any of those images depicted the named victims.
In fact, the government provided no evidence connecting defendant to the named
victims. 	The government’s pro forma motion for restitution merely directs the
court to the supporting documentation generated by the victims’ attorneys.
(Docket 68). 	The supporting documentation is extensive and provides ample
evidence showing the extreme harms suffered by the victims. 	See Dockets 68-1
through 68-5. 	However, the documentation does not allege defendant
possessed images of the named victims. 	The attorney representing both Violet
and Lily, for example, states she has not been informed of the number of images
or videos depicting her clients involved in defendant’s case. 	(Docket 68-2 at
p. 7 & 68-3 at p. 13).
“Restitution . . . under section 2259 is proper only to the extent that
defendant’s offense proximately caused the victim’s losses.” 	United States v.
Bordman, 895 F.3d 1048, 1056 (8th Cir. 2018) (quoting Beckmann, 786 F.3d at
682). 	It is undisputed that possessors of child pornography “cause proximate
harm to victims[.]” 	Id. 	However, the court cannot conclude defendant caused
any harm at all to the named victims when there is no evidence defendant
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possessed any images of these victims. 	The court is aware that it must order
defendant to pay restitution to the victims of his crime. 	18 U.S.C. § 2259(a)
(“[T]he court shall order restitution . . .”) (emphasis added). 	The court does not
doubt the severe harms suffered by the named victims, nor does it discount the
possibility that images of these victims may be among the thousands of images
defendant possessed. 	The court nevertheless must deny the pending motion for
restitution because the government failed to provide any evidence demonstrating
defendant possessed images of these specific named victims.
Accordingly, it is
ORDERED that the government’s motion for restitution (Docket 68) is
denied.
Dated January 24, 2019.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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