UNITED STATES OF AMERICA v. MARIO AHLAZSHUNA DILLARD
US Court of Appeals for the Fourth Circuit, Agee, May 30, 2018,
Restitution – A victim of child pornography who has suffered harm from the trafficking of his/her image is entitled to restitution from those that traffic in that image, even if that person had nothing to do with the production of the image in question.
Facts:
Between 2014 and 2015, Mario Dillard used the internet to access websites and instant messaging apps to view and upload child pornography. One of these websites required its members to post child pornography at least once a month to maintain membership.
During this time period, Dillard sexually abused a 5-year-old (including vaginal and anal penetration), video taped the abuse, and uploaded the videos to the internet.
Dillard was also involved in distribution of child pornography involving at least seven other children, though he did not have direct contact with these victims.
In 2016, Dillard was indicted in federal court on multiple counts of child pornography distribution and possession.
Dillard pleaded guilty and agreed to pay restitution to his victims. Dillard waived the right to appeal from his sentence.
At sentencing, the family requested $3,590 in restitution for the 5-year-old. The Government thought that this “underestimated the extend of her damages” and requested that the sentencing court double the amount. Instead, the sentencing court awarded $100,000 in restitution. The sentencing court observed that there is “average damage to a victim of child pornography of $1,243,296.54” over the course of her lifetime.
The Government requested restitution for the non-contact victims of Dillard’s child pornography distribution. However, the sentencing court denied the Government’s request. It held that the Government produced “no evidence” any of the non-contact victims were even aware of Dillard’s conduct.
Both Dillard and the US Government appealed.
Dillard appealed the award of $100,000 restitution.
The Government appealed the sentencing court’s denial of restitution for the non-contact victims.
Held: The Fourth Circuit held that Dillard waived his right to appeal restitution and that the sentencing court should have allowed restitution to the non-contact victims.
Restitution – The Mandatory Victims Restitution Act requires that a sentencing court order the defendant to pay the victim the “full amount of the victim’s losses.”
Restitution – The Supreme Court has previously ruled that, with regard to victims of child pornography, the sentencing court “should order restitution in an amount that comports with the defendant’s relative role in the causal process that underlies the victim’s general losses.”
Restitution – There is no requirement that the victim be aware that the defendant was distributing child pornography involving him/her in order to collect restitution
Restitution – A victim of child pornography may receive restitution if he/she has suffered harm related to trafficking in images of his/her abuse and the defendant’s conduct involved those images.
Restitution – Award of restitution for victims of child pornography does not involve a “precise algorithm,” but rather a weighing of the victim’s harm and the significance of the defendant’s contribution to that harm.
Restitution – Factors that may be considered include (but are not limited to):
– the number of past criminal defendants found to have contributed to the victim’s general losses
– whether the defendant reproduced or distributed images of the victim
– how many images of the victim the defendant possessed
Restitution – The above factors “need not be converted into a rigid formula, especially if doing so would result in trivial restitution orders.”
From the Case: “Where, as here, it was uncontested that the individuals seeking restitution were Dillard’s victims and had outstanding losses associated with the continued trade in their images, they were entitled by statute to some non-nominal amount of restitution.”