United States v. David Rothenberg (11th Cir. May 2019)

Restitution/18 U.S.C. § 2259(a) – Under Paroline v. United States, a district court is not required to “disaggregate” the losses of a child pornography victim between initial abusers, producers, distributors, or possessors of the pornographic material before determining an individual defendant’s restitution obligation, as long as the district court conducts an individualized assessment regarding proximate causation, victim harm, and the defendant’s relative role in the victim’s losses.

After pleading guilty to possession of child pornography, David Rothenberg was ordered to pay a total of $142,600 to nine victims depicted in the images of child pornography he possessed pursuant to 18 U.S.C. § 2259(a).

Prior to and at the restitution hearing, the Government identified ten individual victims in the images found on Rothenberg’s computer and notified them of the upcoming restitution hearing. The victims or their attorneys submitted restitution requests and supporting documentation to the Government. The Government submit requests for the ten victims, though one later withdrew her request.

Rothenberg and the Government agreed that the Supreme Court’s decision in Paroline v. United States, 572 U.S. 434 (2014) established a standard of proximate causation and requires that a restitution order reflect “an amount that comports with defendant’s relative role in” causing the victim’s losses. The Government contended that the district court should make that calculation through the “1/n method,” under which the court divides the total amount of a victim’s losses by the number of defendants, across multiple prosecutions, who have been ordered to pay restitution thus far, and then exercise its discretion regarding the obligation of an individual defendant like Rothenberg who is convicted only for possession. Rothenberg argued that the court’s starting point should be a “disaggregation” between distributors, producers and possessors.

On appeal from the district court’s restitution order, Rothenberg argued that the district court failed to first disaggregate the victims’ losses among the initial abuser, distributors, and other possessors of the images. He also argued that the restitution award for each victim was not supported by competent evidence.

The Court affirmed the district court’s orders as to 8 of the 9 victims, emphasizing that district courts have wide discretion to award restitution under § 2259(a). The district court had gone through each individual victim, their evidence supporting their requests, such as the costs, medical issues, and lost wages associated with their trauma, and how the Government and Rothenberg responded. The district court explicitly weighed how many defendants had thus far been ordered to pay restitution to each of the victims, the reliability of their evidence, and the number of images Rothenberg had of each of them.

The Eleventh Circuit held, for the first time, that “a district court is not required to determine, calculate, or disaggregate the specific amount of loss caused by the original abuser-creator or distributor of child pornography before it can decide the amount of the victim’s losses caused by the later defendant who possesses and views the images.” The Court held that Paroline’s requirement that a defendant only be held liable for his “relative role” in the victims’ losses can be measured in a variety of ways by district courts, and while the defendant’s status as a possessor versus a creator-distributor was certainly relevant, it did not require a preliminary factual finding regarding the amount of losses caused by that status relative to others.

The Court listed decisions by other Circuits grappling with the same issue. While the Ninth and Tenth Circuits require district courts to engage in “some level of disaggregation” between original abusers and later distributors and possessors, most Circuits do not require disaggregation and allow relative causation and culpability to be measured in a variety of ways, including the nature of the images or videos, the number of images possessed, the degree of distribution, etc.

Here, the Court noted that the district court had explicitly stated that it considered Rothenberg’s “relative role” as a possessor in calculating the restitution amounts and that, under Paroline, “that is enough.” The Court did include a footnote, however, cautioning that a “strict 1/n approach” would likely not meet the “individualized assessment requirement of Paroline.”

The Court also went through Rothenberg’s sufficiency of the evidence claims regarding the restitution awarded to each victim. Regarding six victims, the Court rejected Rothenberg’s argument that the district court erred in considering evidence based on psychological evaluations of the victims conducted before his arrest and before the victims learned of his offense, holding that Paroline overruled 11th Circuit precedent in United States v. McGarity which had essentially required the Government to prove but-for causation. That a defendant possessed pornographic images of a victim was sufficient to hold them responsible for some of the losses stemming from the dissemination and trafficking of those images.

The Court held that there was sufficient evidence supporting 8 of the victims’ requests. The Court did hold, however, that Rothenberg was correct in arguing that the award for one of the victims was not supported by reliable evidence. This victim had submitted a victim impact statement but no expert report or any estimate, reasonable or otherwise, of what the total losses might be. To the extent part of the award could be justified, there was no effort to consider Rothenberg’s individual role in that amount. The Court remanded the case to give the victim an opportunity to supplement her request with evidence of her losses.

Appeal from Southern District of Florida

Opinion by Hull, joined by E. Carnes and Rosenbaum

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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