Must Read Decision on Double Jeopardy, Restrictive Supervised Release Conditions, and Restitution
A jury convicted Dunn of possession, receipt and distribution of child pornography. He challenged the trial court’s jury instruction on distribution. That instruction told the jury that “when a person knowingly makes images available on a peer to peer file sharing network, such as Limewire, this is considered distribution of the images. The panel held that the instruction was proper because “active distribution or transfer of possession to another is not required to prove distribution under § 2252A(a)(2).”
Dunn also argued that his convictions for receipt and possession of the same illicit material violated the Double Jeopardy Clause. Applying the plain error standard of review, the panel agreed with Dunn and ordered the district court to vacate one of Dunn’s convictions.
Dunn challenged supervised release conditions that restricted possible future employment in his prior field of computers. The district court had ordered that he participate in the probation and pretrial services computer and internet monitoring program. This program imposed numerous “robust restrictions” on his use and access to both computers and the Internet and allowed Probation to monitor that use. Again, using plain error analysis, the panel held that the district court had violated its “mandatory” duty “to specifically find that [the occupational] restriction is minimally restrictive.” The panel emphasized that the circuit’s prior decisions “unambiguously require supporting findings when courts impose special conditions of supervised release.” It noted that the district court may have not even considered the effect of the computer monitoring program on Dunn’s “prospects for future employment or his ability to pay restitution to his victims.”
Finally, the panel set aside the district court’s restitution order because it violated the restitution analysis and rules in Paroline v. United States, 134 S.Ct 1710 (2014). The ubiquitous “Vicky”(represented by Paul Cassell and the University of Utah appellate law clinic) demanded Dunn pay $583,955 of the $1.3 million of damages she allegedly has suffered. According to Vicky, $583k is the amount of her total losses minus the amount of restitution she has garnered from other defendants. Dunn balked at this amount and asked the district court to compel her to “produce a more up-to-date economic report regarding damages and regarding the damages Mr. Dunn caused as a result of his underlying criminal behavior.” (Meaning that these reports did not clearly distinguish the primary harms associated with her original abuse from those secondary harms flowing from the dissemination of images of her online.) The panel found the district court should have granted Dunn’s request. It also ruled the court incorrectly found Dunn jointly and severely liable for the entirety of Vicky’s injuries because he was a “distributor” of her images. The trial court was wrong because it “clearly h[eld] Mr. Dunn liable for the conduct of thousands of geographically and temporally distant offenders acting independently, and with whom he had no contact, in contravention of Paroline’s guidance.”
Perhaps, most importantly, the panel commented that the district court unduly emphasized Dunn’s role as a “distributor” when not all distributors are on equal footing. Coming full circle back to the challenged instruction, the panel said that a jury found Dunn distributed the image by merely placing it into a shared folder on a peer to peer network. In assessing an accused’s relative role in the causal process for restitution purposes, the district court should consider the facts underlying that conviction—i.e., did the government show that others had actually downloaded files from the accused and, if so, had only one or two other people downloaded those images from him, or had hundreds or thousands over a period of years. The panel concluded that these factors are important to consider because “the clear rationale of Paroline is that a defendant should be held accountable for the measure of losses that he individually has caused.” Restitution should reflect the consequences of an accused’s own conduct and he should not be held accountable for those harms initially caused by the pictured person’s abuser.