58 F. Supp. 3d 239
E.D.N.Y.2014Background
- DiLeo pled guilty to a single count of possession of child pornography under 18 U.S.C. § 2252(a)(4)(B).
- Restitution remained open at sentencing because a victim, identified as Vicky, seeks recovery; government bears the restitution burden under Paroline v. United States.
- Paroline provides that restitution depends on causation and proximate cause linking the defendant to the victim’s losses; the victim’s identity is protected by a pseudonym.
- Search of DiLeo’s Queens residence yielded a computer with videos, including a pre-pubescent victim named Vicky; DiLeo admitted downloading via LimeWire and knowing the videos were illegal.
- Paroline was decided before the restitution hearing; the court held a restitution hearing on September 5, 2014, under the new causal framework.
- Court ultimately awards $2,000 in restitution to Vicky, finding it consistent with Paroline’s guidance and the ordinary case approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Paroline governs the restitution framework in this case | Vicky’s losses may be recovered under Paroline’s proximate-cause standard. | Paroline factors are uncertain and many cannot be proven; a smaller award should apply. | Paroline framework applies; determine a non-token restitution amount. |
| How to apportion Vicky’s losses among defendants | The government’s divisor (476 defendants) is appropriate to determine a proportional share. | Simple division overstates DiLeo’s share; need limiting factors and future-offender considerations. | Court adopts a benchmark division approach, starting from known losses divided by 476 defendants, then adjusts for lack of proof on other Paroline factors. |
| Whether evidence of distribution or ‘sadistic’ nature should affect the award | Distribution by DiLeo was shown via LimeWire downloads and supports enhanced liability; ‘sadistic’ nature justifies higher damages. | No evidence that any images were distributed by DiLeo to others; distribution not proven as to the victim; “sadistic” flag should not drive the base amount. | No distribution evidence proved; base calculation governed by Paroline factors; no separate enhancement for ‘sadistic’ nature. |
Key Cases Cited
- Paroline v. United States, 134 S. Ct. 1710 (2014) (progeny rule: restitution only to the extent defendant proximately caused victim’s losses; factors guide apportionment under common-law gloss)
- Dorvee v. United States, 616 F.3d 174 (2d Cir. 2010) (disagreement with strict proportionality but supports non-token restitution under Paroline)
- United States v. Rogers, 758 F.3d 37 (1st Cir. 2014) (restitution awards in the several-thousand-dollar range under Paroline)