United States v. Cecilio Galan
2015 U.S. App. LEXIS 19227
| 9th Cir. | 2015Background
- Defendant Cecilio Galan was convicted of distribution and possession of child pornography involving images of a victim referred to as “Cindy.”
- Galan was not the original abuser; the original abuse and image production occurred about eleven years before Galan’s offenses.
- The government sought restitution under 18 U.S.C. § 2259 for Cindy’s losses, including future lost earnings, post-crime medical expenses, vocational rehabilitation, and the cost of an economic report.
- The government relied on an expert report that did not disaggregate losses caused by the original abuser from ongoing losses caused by later possession/distribution.
- The district court refused to require disaggregation and entered a restitution order against Galan; Galan appealed contending the court should have excluded losses attributable to the original abuser.
- The Ninth Circuit vacated the restitution order and remanded, holding that losses caused by the original abuser must, to the extent possible, be disaggregated from those caused by later possession/distribution when calculating § 2259 restitution.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Galan) | Held |
|---|---|---|---|
| Whether district court must disaggregate losses caused by original abuser from losses caused by later possessors/distributors when awarding § 2259 restitution | No disaggregation required; restitution may be calculated without separating original-abuse losses | Disaggregation required; restitution must exclude losses attributable to original abuser | Court held disaggregation is required to the extent possible; restitution order vacated and remanded |
| Who bears burden of proving amount of loss attributable to defendant | Government accepts burden under § 3664(e) to prove amount caused by defendant | Galan: government must prove amount of Cindy’s losses proximately caused by his conduct | Court reiterated government bears burden to prove restitution amount tied to defendant’s proximate causation |
| Whether defendant must pay for all ongoing harms a victim suffers from knowledge of image circulation | Government argued ongoing harms are recoverable as proximate result of possession/distribution | Galan argued some ongoing harms stem from original abuse and are not his responsibility | Court: ongoing harms are compensable only to the extent they are proximately caused by defendant’s offense; separate original-abuser harms must be excluded |
| Appropriate remedy when expert report fails to disaggregate losses | Government urged adoption of report as sufficient | Galan urged reversal because report conflated original-abuse losses | Court vacated restitution and remanded for further proceedings and record development to apportion losses |
Key Cases Cited
- Paroline v. United States, 572 U.S. 434 (2014) (restitution under § 2259 limited to losses proximately caused by defendant’s offense and courts must attempt apportionment)
- United States v. Peterson, 538 F.3d 1064 (9th Cir. 2008) (standards for reviewing restitution orders)
- United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011) (procedural requirements for § 2259 restitution and application of § 3664)
- United States v. Dunn, 777 F.3d 1171 (10th Cir. 2015) (district court erred in adopting damages that did not disaggregate harms caused by original abuser)
- United States v. Rogers, 758 F.3d 37 (1st Cir. 2014) (addressing restitution apportionment issues in child pornography cases)