Restitution by Child Pornography Producer and Distributor Remanded for Better Victim Loss Analysis
Steve Jackson Rodriguez, 39, was a certified nursing assistant who worked nights at a Southern California group home for severely disabled children. While there, he committed a series of horrid child exploitation crimes, many of which he filmed. He was sentenced to life in prison for producing child pornography and enticing a minor to engage with him. He also sent the material and additional child pornography, which he did not personally create, to a series of others.
As part of his conviction, Rodriguez was ordered to pay part of a restitution total of $125,764.25 to each victim –those he personally abused as well as the owner of the group home and others who were included in his child pornography collection. He appealed to the Ninth Circuit, objecting to the restitution awards ordered by Presiding District Judge John W. Holcomb of the United States District Court for the Central District of California.
On July 9, a three-justice panel of the Ninth Circuit Court of Appeals ruled the children that he did not personally abuse were not entitled to restitution because Holcomb failed to perform a “loss-causation analysis.” In a memorandum decision, Circuit Judge Danielle J. Forrest and District Court Judge James Donato of the Northern District of California, sitting by designation, vacated Holcomb’s order, while Circuit Judge Patrick J. Butamay dissented in part because he did not believe the Ninth Circuit ruling complied with the Amy, Vicky, and Andy Child Pornography Assistant Act of 2018 (the Act).
The Act was codified as 18 U.S.C. § 2259(b). It directs those convicted of trafficking in child pornography to pay victims the full amount of their losses. The amount of this restitution is to be “an amount that reflects the defendant’s relative role in the “causal process,” but can be no less than $3,000. In addition, the Act says that restitution is “mandatory,” and “a court may not decline to issue an order because of the economic circumstances of the defendant” or whether the victim has received compensation from other sources.
The government, as the plaintiff-appellee in this case, argued that the defendant waived his right to an appeal during the plea bargaining process. However, according to a Ninth Circuit precedent, United States v. Tsosie, 639 F.3d 1213, 1217 (9th Cir. 2011), the plea agreement would only be valid if Rodriguez had been given “a reasonably accurate estimate of” the restitution amount when he agreed to waive his right to appeal. The court stressed that “No such estimate was given…”
While not disagreeing with this finding, the government still argued that the waiver should be enforced because it had informed Rodriguez that he faced a fine greater than what the restitution would be. The Ninth Circuit, citing United States v. Crawford, 169 F.3d 590 (9th Cir. 1999), disagreed because that case and others “do not involve a waiver of an appeal of a restitution order.” Thus, the court determined Rodriguez’s appeal was proper.
Rodriguez only chose to appeal the portions of the restitution award that pertained to the facility owner and the children he did not personally abuse. The government conceded, and the Ninth Circuit agreed, that Rodriguez did not owe restitution to the group home owner, because “she was not a victim” as defined under a different section of the Act. However, the government argued that the court could have awarded restitution to the group home owner under a different federal statute. Since the issue of restitution was not decided by the trial court, that portion of the ruling was remanded to the district court to decide whether restitution would be warranted to the owner of the group home.
The remaining key issue related to restitution for those not personally abused by the defendant. On this point, Rodriguez committed a procedural error by not objecting to the district court’s awards during its proceedings regarding restitution. Nonetheless, the Ninth Circuit agreed to review these awards for “plain error,” which is defined as one that is “plainly evident from the record and affects a litigant’s substantial rights,” according to the Legal Information Institute.
The opinion states that a plain error occurred because the district court was clearly incorrect when it awarded the victim’s restitution without “conducting any loss-causation analysis.” This is because the Act’s restitution applies only to “the extent the defendant’s offense proximately caused a victim’s losses.” This requirement was added when the Act was amended to define losses as “costs incurred, or that are reasonably projected to be incurred in the future, by the victim … as a proximate result of all trafficking in child pornography offenses involving the same victim.”
The Ninth Circuit concluded that no such analysis was ever done. District Court Judge Holcomb had awarded $3,000 to four victims “without evidence indicating they sustained compensable losses.” In addition, he gave $5,000 to four other victims without “determining whether that amount approximated” their losses that stemmed from Rodriguez’s crimes.
The appellate court then agreed that one victim should have received $3,000 because the record shows she suffered “compensable losses” due to Rodriguez’s part in her sex trafficking, but the court remanded the restitution awards to all the other victims to the district court for further proceedings.
Judge Butamay’s dissent “agreed with the bulk” of the majority’s decision but objected to the elimination of the awards to all the other children. In support, he cited the Act’s requirement that no less than $3,000 be paid to each victim, and he disagreed that the $5,000 awards were made in plain error because each victim “adequately demonstrated with their filings that defendant’s possession and viewing material depicting them being brutally raped has caused them approximately $5,000 in financial harm.”
The court did not explain how restitution was to be calculated or whether $3,000 or $5,000 in restitution could ever make up for what happened to these young people at night in their group home for disabled children. The full amount of their losses can probably never be determined.
