9th Cir. Overturns Child Porn Restitution Order

(CN) - A man guilty of child pornography possession doesn't have to pay restitution for harm caused to the victim by the creator of the images, the Ninth Circuit ruled.

Cecilio Galan was convicted of possession and distribution of child pornography depicting a victim known as "Cindy." The child abuse depicted in the pornography occurred approximately 11 years before Galan committed the crimes he was convicted of.

The government sought restitution for losses to Cindy caused by Galan's actions, including future lost earnings, medical expenses and vocational rehabilitation.

But Galan objected, arguing that the government could not hold him liable for Cindy's losses without disaggregating the losses caused by her original abuser, the man who made the pornography.

An Oregon district court judge agreed with Galan, and the Ninth Circuit affirmed on appeal Wednesday.

The San Francisco-based appeals court found that the U.S. Supreme Court has plainly recognized a difference between a child's original abuser and a person who distributes those images.

"If an original abuser had stayed in his own clandestine and sick little world, a terrible trauma would have been inflicted upon the victim, and the abuser would have to atone for all of the consequences of that wrongdoing," Judge Ferdinand Fernandez wrote for a three-judge panel. "Those who later participate in distribution or possession, especially at a more remote time, are part of a distribution crime, but not of the physical-abuse crime. Galan's offenses were those of a later participant; he had nothing to do with the original abuse."

Restitution must reflect the consequences of a person's own actions, and therefore Galan cannot be held accountable for harms caused to Cindy by another, the appeals court ruled.

Fernandez recognized that making an apportionment of damages will be difficult.

"We have no illusion that the task will be easy, but it does not appear any more impossible than the other tasks imposed upon courts attempting to apportion restitution amounts in this area," the judge wrote. "If the ultimate apportionment is not scientifically precise, we can only say that precision is neither expected nor required."

U.S. District Judge John Bates came to a similar conclusion in a separate case, when he vacated a restitution award against Gregory Loreng for his possession of images of Cindy and another child referred to as "Amy."

"The [government's] proposed formula suffers from two flaws: it begins with the total amount of Amy's and Cindy's losses, instead of the portion of Amy's and Cindy's losses caused only by continued viewing of the images, and it employs an arbitrary method of apportioning the total among those who contribute to it," Bates wrote.

The Ninth Circuit panel said in the 10-page opinion that the issue "cries out for a congressional solution." It remanded Galan's case for a new restitution finding.

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