[00:00:14] Speaker 02: with the defendant and appellant, Steve Jackson Rodriguez. [00:00:17] Speaker 02: I'd like to reserve about two minutes for rebuttal, please, and I will be sure to watch my time. [00:00:23] Speaker 02: The district court's restitution order to the group homeowner and the image possession victims in this case reflected an abuse of discretion, and it should be vacated because arrested on incorrect legal standards and was unsupported by proximate cause. [00:00:38] Speaker 02: And I'd like to address the award to the group homeowner first. [00:00:52] Speaker 02: restitution statute that govern Mr. Rodriguez's offenses, 18 U.S.C. [00:00:56] Speaker 02: 2259, which is a mandatory restitution statute. [00:00:59] Speaker 03: The government concedes that point, right? [00:01:01] Speaker 03: It does, Your Honor, yes. [00:01:02] Speaker 03: So the question that seems to be on this issue is whether the government waived the ability to get restitution as to the care home under 3663. [00:01:10] Speaker 02: Your Honor, I think there is actually two. [00:01:12] Speaker 02: I think that is a question. [00:01:13] Speaker 02: I think did the government waive it, and I actually think that it did because it only relied on that section below. [00:01:17] Speaker 02: It specifically cited that section [00:01:20] Speaker 02: that's what probation rely on but also I think it's argument here is that the plea agreement provided for restitution under this much broader statute of 3663 which sort of really really expands the category of victims to anybody [00:01:40] Speaker 02: that this plea agreement was entered. [00:01:42] Speaker 02: 2259 is the mandatory restitution statute that's applicable to these offenses. [00:01:47] Speaker 02: That's what the government cited. [00:01:49] Speaker 02: The word victim has a very different meaning for child sexual exploitation offenses that are all of the offenses in this case, the victim harmed. [00:01:58] Speaker 02: That is, under the statute 2259 B2B, the person impacted. [00:02:02] Speaker 02: I think even the government admits that's a much narrower definition than under 3663, [00:02:20] Speaker 04: I'm sorry, Your Honor, I actually don't think that that's right. [00:02:28] Speaker 02: I don't think the plea agreement did agree to that. [00:02:29] Speaker 02: I don't think he agreed to a broader definition of victim in his plea agreement. [00:02:33] Speaker 02: Because if you look at the plea agreement, it does use the word victim, but it does that in the context of offenses that are only governed by 2259. [00:02:40] Speaker 02: It never cites 3663. [00:02:46] Speaker ?: the court may order restitution to any victims of any of the following for any losses suffered by that victim. [00:02:54] Speaker 02: And then it talks about the offenses. [00:02:56] Speaker 02: Who is a victim of offenses that arise under Chapter 110? [00:02:59] Speaker 02: It's the child. [00:03:01] Speaker ?: It's the child who's being harmed. [00:03:02] Speaker ?: The import of this plea agreement under DOE, you have to look at what did the parties intend in this plea agreement. [00:03:08] Speaker 02: They intend to make restitution to the children. [00:03:11] Speaker 02: There was no discussion in this plea agreement [00:03:19] Speaker 05: I don't, I hear what you're saying. [00:03:56] Speaker 05: to the children victims. [00:03:58] Speaker 05: Your Honor, if it's ambiguous, that ambiguity has to be construed against the government. [00:04:02] Speaker ?: That's under the Doe case, and that's well established. [00:04:05] Speaker 02: If it's ambiguous as to who a victim is, it needs to be construed in favor of Mr. Rodriguez. [00:04:10] Speaker 02: If it's the offense that's defining the victim, let's look at what the offense is. [00:04:15] Speaker 02: 2259 defines the offense, and it also has a definition of victim. [00:04:18] Speaker 02: That's in 2259, I'm sorry, I'm looking at C4. [00:04:23] Speaker 02: What is a victim? [00:04:24] Speaker 02: The victim means the individual [00:04:28] Speaker 02: individual harmed, the individual harmed. [00:04:30] Speaker 02: And if you look at the case law that's cited in the reply, Booz and Tillman, there is extensive case law on who is a victim of a child sexual abuse offense. [00:04:40] Speaker 02: It's the child. [00:04:42] Speaker 02: It's not anyone who can come into court and show by some proximate causation chain that they were harmed. [00:04:50] Speaker 02: Although I do want to also challenge that, Your Honors, perhaps we can move on to the proximate causation [00:04:58] Speaker 04: out that there's some ambiguity under Planoir's standard, why should we allow you to make that argument when it's not obvious? [00:05:06] Speaker 02: Well, Your Honor, I think it is obvious, actually. [00:05:09] Speaker 02: It is obvious that these principles exist. [00:05:13] Speaker 02: Planoir agreements do need to be construed narrowly. [00:05:16] Speaker 02: There's a clear definition of victim under 2259, and it's clear how all the parties understood this at the time. [00:05:22] Speaker 02: The first time there [00:05:38] Speaker 02: same in the pre-sentence report, it cited that. [00:05:41] Speaker 03: Does your argument that 3663 doesn't apply hinge on waiver? [00:05:44] Speaker 03: You don't otherwise argue that it legally doesn't apply? [00:05:47] Speaker 02: I do argue that legally doesn't apply on it. [00:05:49] Speaker 02: It was waived, but also because the argument under 3663 says that it was provided for in the plea agreement, which it was not. [00:05:56] Speaker 02: The plea agreement never mentions 3663. [00:05:58] Speaker 03: It mentions victim in the context of a- Is there a case authority that says that 3663 is not going to be triggered unless it's specifically referenced in a plea agreement? [00:06:09] Speaker ?: I think that's a good point. [00:06:16] Speaker ?: I think that's a good point. [00:06:20] Speaker 02: I think that's a good point. [00:06:31] Speaker 02: the same language, that has a mandatory restitution statute for victims that's exactly verbatim similar to 2259, the victim harmed. [00:06:39] Speaker 02: And this court said in SOCI, that is the applicable restitution statute to that offense, because that's what governs that offense. [00:06:46] Speaker 05: The parties had such a clear understanding, they would have spelled it out and said that restitution is excluded under 3663. [00:06:56] Speaker 02: that says that an ambiguity in the plea agreement has to be construed against the defendant. [00:07:00] Speaker 02: This will be sort of requiring a clear statement in favor of this reading, but that's not right. [00:07:05] Speaker 02: I think there is simply no indication. [00:07:08] Speaker 02: And I think the intent of all the parties here in Doe, it talks about what are the parties trying to do in this agreement? [00:07:14] Speaker 02: They're trying to dismiss some charges, but still make sure [00:07:16] Speaker 02: that the victims of those charges receive restitution. [00:07:19] Speaker 02: Here four possession charges were dismissed, one distribution, I'm sorry, four production charges, one possession, and one distribution charge were dismissed. [00:07:28] Speaker 02: But the party's intent was still to provide restitution. [00:07:35] Speaker 02: on ER 165, that's what this is doing. [00:07:38] Speaker 02: It said, okay, we dismiss those production charges, those possession charges, but we still want those child victims to get restitution. [00:07:44] Speaker 02: Nowhere does that suggest that we can now broaden this definition that applies under 2259, the mandatory statute to this greater universe of people, including a care home victim, who I don't actually think, even assuming she could be a victim, I think, Your Honors, maybe we could also address her showing [00:08:10] Speaker 04: of the following for any losses suffered by that victim as a result of relevant conduct and conduct that's dismissed. [00:08:18] Speaker 04: But it uses the word victim, Your Honor. [00:08:20] Speaker 04: Yeah, any victim. [00:08:21] Speaker 04: So it doesn't say victim under particular statutes, it says any victim. [00:08:24] Speaker 02: But what is a victim? [00:08:26] Speaker 02: I guess that's the question. [00:08:28] Speaker 02: Well, the victim is defined by reference to the offense. [00:08:31] Speaker 02: It says the victim has to be of the [00:08:37] Speaker 02: I think that's a good point. [00:08:42] Speaker 02: I think that's a good point. [00:09:09] Speaker 02: under chapter section C for victim means the individual harmed as the result of a commission and there's also a provision in there for legal guardians may assume the crime victims rights under this section and it also allows for [00:09:31] Speaker 04: Well, I think that that's right, but I think that that mother would be able to recover for the cost of medical services, psychiatric care, physical and things like that. [00:09:40] Speaker ?: Yes. [00:09:40] Speaker ?: I don't know, Your Honor, that wasn't briefed here, but I think it would have to be construed under here. [00:09:47] Speaker 02: But I think certainly the idea that it would include a person who suffers economic harm is a secondary downstream result of having another person not accept a residence in [00:10:00] Speaker 02: the road from what we're talking about here in proximate cause. [00:10:03] Speaker 02: And so I might address that just to many others. [00:10:06] Speaker 02: Actually, I see I'm sort of at the end of my time here. [00:10:09] Speaker 02: May I have a couple of minutes to address that? [00:10:26] Speaker 01: Good morning. [00:10:26] Speaker 01: May it please the court, Catherine Richmond on behalf of the United States. [00:10:31] Speaker 01: The government has three arguments to make today, but if I can, I'd like to start with the enforceability of defendant's appellate waiver. [00:10:39] Speaker 01: Defendant knowingly and voluntarily waived his right to appeal any restitution award in this case. [00:10:46] Speaker 01: In his plea, defendant was advised of the maximum fines and special assessments to which he was subject. [00:10:53] Speaker 01: He was also advised that [00:10:57] Speaker 01: he would be paying restitution. [00:10:59] Speaker 01: The fines and special assessments totaled $1.75 million. [00:11:05] Speaker 01: The combined restitution and special assessments the lower court actually imposed on defendant, however, was significantly under that number. [00:11:13] Speaker 01: And under Alvarez, Crawford, and Pomazi, which are in harmony with Lowe, this restitution order should be upheld. [00:11:20] Speaker 01: In Lowe, [00:11:22] Speaker 01: would face unfair surprise when he was ordered to pay money at the end of the case. [00:11:28] Speaker 01: However, Alvarez, Crawford, and Pomazi hold that when defendant is advised [00:11:48] Speaker 03: below, we set out this pretty clear rule that says that because restitution doesn't have a statutory measure, we want a reasonably accurate estimate, I believe is the phrase, that the defendant must be given a reasonably accurate estimate of restitution. [00:12:03] Speaker 03: And here, if we just talk about the care home, I don't see anything in the record indicate that any sort of estimate was given to this defendant, that that [00:12:13] Speaker 01: We agree that Lowe applies here, and we believe that Lowe is enforceable. [00:12:18] Speaker 01: However, our argument is that Alvarez, Crawford, and Pomazi do not conflict with Lowe. [00:12:24] Speaker 01: They are in harmony with Lowe, and those are the cases that are instructive here. [00:12:31] Speaker 01: That's correct, Your Honor, but we believe that the justification and the reasoning behind those cases is applicable here as well. [00:12:38] Speaker 01: We believe that the fear of Lowe was that a defendant would not understand what he was [00:12:44] Speaker 01: to his financial liability. [00:12:46] Speaker 01: But we believe that Alvarez-Croft and Pomazi say that when a defendant is on notice, that he could be subject to a high fine. [00:12:53] Speaker 01: And in this case, the fines and special assessments were $1.75 million, and he knowingly and voluntarily... He was fined and given a restitution order here. [00:13:03] Speaker 01: That could have been, Your Honor. [00:13:04] Speaker 04: And then what would you do? [00:13:05] Speaker 01: Is there a repel of labor here under that fact then? [00:13:08] Speaker 01: Those facts are different, and that very well could be a low issue, but those aren't the facts that we have here. [00:13:27] Speaker 01: Yes, Your Honor, that is our argument. [00:13:32] Speaker 01: And I believe that is actually what the reasoning of Alvarez, Crawford, and Pomazi say. [00:13:37] Speaker 01: Because if defendant is willing to voluntarily and knowingly waive his rights as to a fine that's $1.75 million, there's no real distinction between him paying some of that money if it's at or below that figure to restitution or to fines. [00:13:51] Speaker 01: And in fact, in the good old days, [00:13:54] Speaker 01: can still be voluntary [00:14:15] Speaker 01: The statute was wrong, and we concede that. [00:14:21] Speaker 01: The statute that we cited in our plea agreement and the statute we cited in our papers in the lower court was incorrect. [00:14:26] Speaker 01: But that does not foreclose our ability here on appeal or for you to uphold the restitution award under 3663A. [00:14:34] Speaker 01: It seems that defendants are [00:14:37] Speaker 01: in the plea, it cannot be a basis for this court to affirm, but that's simply incorrect. [00:14:43] Speaker 01: As defense counsel conceded, there is no case that requires that 3663 be included in the plea agreement to be enforceable here. [00:14:51] Speaker 03: But you would agree that waiver principles apply in this context, right? [00:14:55] Speaker 01: I'm so sorry, Your Honor, could you say that one more time? [00:14:56] Speaker 03: Waiver does apply in this context. [00:14:58] Speaker 03: I understand you don't think that it's triggered here, but do you agree that the government could waive an argument in this context? [00:15:05] Speaker 01: With regard to 3663, I understand what you're saying. [00:15:11] Speaker 01: Yes, I believe that could happen theoretically, but those [00:15:50] Speaker 03: I mean, I understand why it wouldn't be waiver if restitution under 3663 was mandatory. [00:15:55] Speaker 03: And I think there are cases out there, not in this circuit, but out of circuit, that talk about that distinction of if you've got a mandatory restitution situation, that citing the right legal authority is not determinative. [00:16:09] Speaker 03: But if it's discretionary as it is here, and the government clearly was saying, this is the only provision that we're going under, we're not going under the discretionary basis, [00:16:21] Speaker 01: In this case, Your Honor, 33663 applies whether the government's [00:16:49] Speaker 01: I mean, as we frequently find in criminal law that multiple statutes can apply to the same conduct. [00:17:04] Speaker 01: So here, if there's a mandatory statute, I think it was fair for the government to say. [00:17:23] Speaker 04: That's exactly correct, Your Honor. [00:17:27] Speaker 01: The government argues that there was a substantial factual basis in the record that the [00:17:55] Speaker 05: anything to the group homeowner. [00:17:57] Speaker 05: Here 2259 has mandatory written all over it. [00:18:01] Speaker 05: I'm not saying the judge read it necessarily that way for the group homeowner, but there's distinctly a flavor of you must pay something for restitution. [00:18:11] Speaker 05: You all, including the district judge, were operating under that and that alone [00:18:40] Speaker 01: Yes. [00:18:42] Speaker 01: I'll address your question first. [00:18:44] Speaker 01: So I heard Judge Bumate say earlier, I think the government had made a cataclysmic error, some kind of large error in the plea agreement. [00:18:51] Speaker 01: I wish I could remember your exact phrasing. [00:18:54] Speaker 01: And we admit that we cited the wrong statute in the plea agreement. [00:18:57] Speaker 01: But unlike the lowly government line, AUSAs, the district court is assumed to know the law and correctly apply it. [00:19:03] Speaker 01: And under Nichols, this court is allowed to affirm on the rationale of 3663, [00:19:12] Speaker 01: or in the sentencing papers. [00:19:14] Speaker 01: Is that responsive to your first question, Your Honor? [00:19:18] Speaker 01: Not really, but go ahead. [00:19:20] Speaker 01: Basically, we should assume that the judge knew the law and applied it even if the government made a mistake in its arguments. [00:19:25] Speaker 05: No, no, listen, I understand that, but when you say the exercise of a decision is discretionary, I don't think the argument holds that we just assume the judge exercised his or her discretion. [00:19:36] Speaker 05: It ought to have some basis in the record that this was, in fact, an exercise of discretion [00:19:55] Speaker 05: We can just pull it off, slap it on, and go forward. [00:19:58] Speaker 05: And I don't think in restitution or criminal sentencing, that's the right way to go. [00:20:04] Speaker 01: I understand, Your Honor. [00:20:05] Speaker 01: I just draw the Court's attention to 366382, which defines a victim as a person directly and proximately harmed as a result of the Commission of Defense for which restitution may be ordered. [00:20:16] Speaker 01: So sort of what the Court was asking my defense counsel earlier about the very, very narrow definition of victim [00:20:29] Speaker 01: to have both known that and applied even if he did not explicitly give a reference to that subsection on the record. [00:20:36] Speaker 01: Would you address the additional argument in the case? [00:20:40] Speaker 01: Yes, the possession victims, Your Honor. [00:20:43] Speaker 01: This is a plain error standard, which means that the burden is on the defendant to prove that there was a clear and obvious error. [00:20:50] Speaker 01: Typically, this court has held that it requires a case saying that the lower court was wrong and that the lower court being wrong affected [00:21:10] Speaker 01: attributable to the victim's losses under Parolin and disaggregated under Golan. [00:21:16] Speaker 01: Your Honor, were you – Justice De Niro, Judge De Niro, were you asking me to focus on Golan, the disaggregation arguments? [00:21:23] Speaker 01: Not just as yet, but thank you. [00:21:26] Speaker 05: The Golan – Galen Golan, however you want to say it, but it all comes from Parolin, and I've got to be honest with you. [00:21:39] Speaker 05: colloquy, you know, I read everything else I could find. [00:21:43] Speaker 05: I just didn't see any discussion or anything trying to parcel out how the possession could be separated from the original crime against these poor victims. [00:21:53] Speaker 01: Your Honor, if I may, I'd like to start with creating two different groups of [00:22:01] Speaker 01: minimum of $3,000 was awarded. [00:22:03] Speaker 01: And for those victims, there can be no substantial rights affected because regardless of what the court did, that mandatory minimum would have applied anyways. [00:22:12] Speaker 03: So the one question I have about that, that makes a lot of sense to me, except for it seems pretty clear under the statute that there has to be a calculation or a determination by the district court that the victim suffered loss, actual loss. [00:22:26] Speaker 03: I mean, maybe we could say, well, it's obvious in a case like this, but there was no finding by the district court that loss was suffered. [00:22:34] Speaker 03: And then, so before the amendment that gave us the statutory minimum, you had to have a finding of loss was suffered, you had to have a finding of total loss, and then you had to have an award or some determination of what that was going to be. [00:22:48] Speaker 03: And that's the disaggregation issues, I think. [00:22:59] Speaker 03: what ultimately gets awarded is that minimum, which is what happened here. [00:23:03] Speaker 03: But I'm struggling with why shouldn't we remand for the district court to actually make a determination that loss, in fact, happened? [00:23:12] Speaker 01: Two points, Your Honor. [00:23:12] Speaker 01: First, I respectfully disagree. [00:23:14] Speaker 01: I think the court did make the findings with regard to that a loss was sustained for the possession victims. [00:23:19] Speaker 01: And second, and I think this is the more substantial point, is that the record was full of [00:23:29] Speaker 01: to the probation office into the court. [00:23:31] Speaker 01: This is hundreds of pages that's included in the record here about the losses that the victims suffered, about how they had to receive psychological counseling, about how they had been taken out of school, and how those losses were ongoing. [00:23:43] Speaker 03: And we have some victims in this case that were awarded restitution that, for example, didn't even know that the images of them were out there and being viewed. [00:23:52] Speaker 01: I don't think so your honor because every time the government receives a restitution request it means that those victims have been notified that their images are part of a criminal case and they have the ability to ask the government [00:24:23] Speaker 01: Especially with regard to the mandatory minimum victims, but even with regard to the victims who got $2,000 over the mandatory minimum, there were literally hundreds of pages of records submitted to the district court, which he said that he had reviewed. [00:24:35] Speaker 01: And we believe that is the basis for the award. [00:24:40] Speaker 01: Well, reviewed, but didn't disaggregate. [00:24:43] Speaker 01: I respectfully disagree, Your Honor. [00:24:45] Speaker 01: If you look at the total losses that were submitted for the $5,000 victims, that is the victims who are awarded $5,000, their losses are far, far in excess, as stated in their papers, from the $5,000 that's attributable to defendant. [00:25:11] Speaker 02: Thank you, Janice. [00:25:12] Speaker 02: I appreciate that. [00:25:13] Speaker 02: Just a few points. [00:25:14] Speaker 02: I wanted to address the appellate waiver issue briefly. [00:25:17] Speaker 02: The government seems to be conflating Alvarez, Crawford, and Ponmasi with a low inquiry, and it's a completely separate question. [00:25:23] Speaker 02: Those cases were dealing with harmlessness. [00:25:26] Speaker ?: Low is dealing with waiver and whether a waiver was voluntary and intelligent. [00:25:30] Speaker ?: Those are two separate questions. [00:25:37] Speaker 02: much greater fine that means that it really didn't he would have accepted this agreement anyway they don't need to undo the plea that's that's fine that's those cases but when you're at the outset saying has this person voluntarily and intelligently waived the right to make any appellate claim as to the award [00:25:58] Speaker 02: the history of that rule and where it comes from. [00:25:59] Speaker 02: There was always a notice requirement, so it's a completely separate issue, and this court should apply a law here. [00:26:06] Speaker 02: Second, I wanted to talk about this discretionary idea that we can just simply pluck a statute out of the air that no party ever thought about below. [00:26:13] Speaker 02: That's really inappropriate to do, and it's especially inappropriate in this case to assume that the district court would have awarded this very large discretionary award here because there was actually [00:26:27] Speaker 02: Mr. Rodriguez's finances. [00:26:30] Speaker 02: The court and counsel were sort of talking about this home that was listed as being an asset of his, but it was unclear as to whether it was really his or not. [00:26:40] Speaker 02: There might have been a fraudulent transfer, that was what the government was trying to say, then there was evidence weighing against that. [00:26:45] Speaker 02: The court ultimately said, well, you know what, this is mandatory, I'm not gonna, I have to impose this recitation that you guys will sort it out later. [00:26:51] Speaker 02: Okay, fine, under 2259, [00:27:05] Speaker 02: the understanding that this was mandatory. [00:27:08] Speaker 02: We don't know what the district court would have done. [00:27:10] Speaker 02: Finally, I wanted to address the proximate cause issue just a little bit. [00:27:15] Speaker 04: I do have a question on the disaggregation argument. [00:27:19] Speaker 04: Given that the defense counsel conceded the amounts, how is that not a harmless error? [00:27:26] Speaker 02: I think conceding an amount and conceding the applicable legal standard are perhaps two different things. [00:27:31] Speaker 02: I do think that, as Your Honors noted, [00:27:39] Speaker 02: I think that counsel below, I guess I would have to look back, Your Honor. [00:27:42] Speaker 02: It's, it, he, he may have conceded. [00:27:44] Speaker 02: I'm conceding the amount, certainly I'm conceding the amount. [00:27:46] Speaker 02: I'm not challenging the calculations. [00:27:49] Speaker 02: When, I think when counsel said that he was talking about the group homeowner, if I'm not mistaken. [00:27:54] Speaker 02: I'm sorry, let me try and challenge. [00:27:56] Speaker ?: Well, okay. [00:27:56] Speaker ?: Go ahead. [00:27:57] Speaker 02: I think that, that argument by defense counsel below was as to the group homeowner's award and he was arguing about proximate causation there. [00:28:16] Speaker 02: The restitution, ER 25 through 28, he says, the only argument I'd like to make is to focus on the group home without challenging the calculation, I think, as to the group home. [00:28:26] Speaker 04: To me, that's saying, like, you know, I'm okay with the amounts, you know, 3,000, 5,000 amounts, but there's 87,000, that's where I'm focusing. [00:28:32] Speaker 02: I guess I didn't understand that to be what council was saying. [00:28:35] Speaker 02: I think what council was saying here was he was challenging the calculation. [00:28:39] Speaker 02: I'm not really. [00:29:12] Speaker 04: that there was a concession below, Your Honors. [00:29:15] Speaker 02: I think that I don't I don't think there was much discussion below. [00:29:18] Speaker 02: What I would like to make is to focus on the group home without challenging the calculation. [00:29:22] Speaker 02: The focus on the group home without challenging the calculation and that's in the midst of a paragraph where he talks about proximate cause. [00:29:28] Speaker 02: I read the statute which reads compensation as a result of and I see I guess I see this whole everything that ensues here everything the council is talking about here is relating to the group homeowner. [00:29:37] Speaker 02: I think that nothing was [00:29:43] Speaker 02: I think there's a waiver for future question here. [00:29:45] Speaker 02: Certainly there was no waiver because council never came out and said as I've never seen in the record here that he came out and said these are correct and we don't want to challenge this at all. [00:30:03] Speaker 02: the total amount of the victim's losses as a result of the trafficking in the images. [00:30:07] Speaker 02: Then step two, 2259B2B and Paroline and Galen all say very clearly that you have to see what was the defendant's relative role in the causal process. [00:30:16] Speaker 02: So that's just a legal standard that just wasn't applied. [00:30:19] Speaker 02: And I understand that counsel didn't bring that up below, but I think that brings us to the plain error standard here. [00:30:23] Speaker 02: And the error was clear because that legal standard just was never engaged with at all.