Restitution Calculations for Child Porn Improper: 2nd Cir.

Defendant Avery Lundquist was convicted of possessing and receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and (a)(5)(B). Among the library of images was one of "Amy," (a pseudonym) -- a young woman who was sexually abused by her uncle when she was four years old. Amy's uncle documented his abuse of Amy in photographs and posted them on the Internet.

Amy is now in her twenties, but the pornographic images of her as a child taken by her uncle remained on the Internet. So far, around 113 individuals have been convicted of possessing images of her.

The case of United States v. Lundquist turns on whether Lundquist can be ordered to pay restitution to Amy, and if so, for how much. The crux of this case falls ultimately on whether the calculation methods the district court used and relied on were proper.

The district court had concluded that Lundquist, alongside the others who were convicted of possessing images of Amy, were jointly and severally liable for the harm caused to Amy. They had calculated that Lundquist himself proximately caused $29,754.19 of Amy's losses. This number was calculated after dividing from the total loss of $3,381,159 by the number of persons who were convicted of possessing her images at the time of Amy's restitution request.

Lundquist then submitted letters attempting to renew his objection and a request for a hearing, arguing that, among other things, the district court had erred in their decision, using the numbers pulled from United States v. Aumai, to hold him jointly and severally liable.

The Second Circuit Court of Appeals has found, however, that the district court did not abused their discretion when it came to finding Lundquist liable in general. It was fine for them to find that Lundquist proximately caused part of Amy's losses, and they were correct in calculating his share of the loss on a per capita basis.

However, the Second Circuit did find that the district court should have apportioned some of Amy's losses to her uncle, such as the losses that were incurred before Lundquist's arrest, when calculating. Thus, using joint and several liability in this case and thereby holding Lundquist responsible for all of Amy's damages was not proper.

Accordingly, the Second Circuit has affirmed in part, vacated in part, and remanded for recalculation of the amount of restitution.

Related Resources:

• United States v. Lundquist (Second Circuit Court of Appeals)
• Fifth Circuit Resolves Final Issue in Child Porn Restitution Case (FindLaw's U.S. Fifth Circuit Blog)
• 2014 Cases: SCOTUS to Address Child Porn Restitution Questions (FindLaw's U.S. Supreme Court Blog)