United States v. Chadwick Brannon , 476 F. App'x 386 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-13624 MAY 17, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 4:09-cr-00038-RLV-WEJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CHADWICK BRANNON,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 17, 2012)
Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.
PER CURIAM:
Appellant Chadwick Brannon appeals the district court’s order that he pay
restitution to a victim of child pornography, following his conviction and sentence
for possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
and (b)(2). On appeal, Brannon argues that the district court erred in ordering him
to pay restitution to the victim because the court held his restitution hearing more
than 90 days after his sentencing hearing, in violation of 18 U.S.C. § 3664(d)(5).
He argues that equitable tolling did not toll the 90-day deadline, and that he did
not waive the application of the 90-day deadline. Additionally, Brannon argues
that the district court erred when it found that his possession of the child
pornography victim’s images proximately caused harm to the victim.
Alternatively, Brannon argues that the district court erred when it ordered him to
pay an unreasonable restitution amount of $3,500 to the victim.
I. BACKGROUND
Brannon was indicted in November 2009 for knowingly receiving material
containing child pornography (Count 1) and knowingly possessing material
containing child pornography (Count 2). A jury found Brannon not guilty on
Count 1 and guilty on Count 2. As noted in the probation office’s presentence
investigation report (“PSI”), an identifiable victim, who for privacy purposes is
identified as “Vicky,” requested restitution prior to Brannon’s sentencing hearing
held on October 28, 2010. At sentencing, the district court referred the issue of
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restitution to a magistrate judge without deciding whether restitution should be
ordered.
Pursuant to 18 U.S.C. § 3664(d)(5), the district court had 90 days from
sentencing, or until January 26, 2011, to determine whether Vicky was Brannon’s
victim and, if so, the amount of Vicky’s losses. On January 14, 2011, the
magistrate judge held a telephonic hearing with the Government’s attorney and
Brannon’s attorney, at which time the court discussed the impending 90-day
deadline. Foreseeing the probability that the parties might not have information
and witnesses available within the next 12 days, the magistrate judge asked
Brannon’s attorney whether he would waive the 90-day requirement. The court
explicitly stated that Brannon would “have to waive” the deadline, and then asked,
“Will you agree in case [the hearing]’s outside the 90 days?” to which Brannon’s
attorney replied, “Yes.” [Tr. of January 14, 2011 Hr’g at 18.] Later during the
telephonic hearing, Brannon’s attorney suggested beginning the restitution hearing
within the 90-day period and finishing it, if necessary, beyond the deadline.
Accordingly, the court set an initial hearing for January 18, 2011.
However, on January 18 Brannon was unavailable to appear because he was
in custodial transport from Virginia to Georgia; the Government was not yet
prepared to call witnesses, and thus, no evidence was presented. When the
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magistrate judge reiterated his understanding that Brannon had waived the 90-day
deadline, Brannon’s attorney said that he did not recall any mention of “the
ultimate waiver.” [R. 97 at 5.] While the attorneys discussed the possibility of
beginning the restitution hearing on January 24 or 25, no hearing transpired on
either date.
On February 23, 2011, about one month after the passing of the 90-day
deadline, Brannon filed a motion for an order denying restitution because of the
court’s noncompliance with 18 U.S.C. § 3664(d)(5). On February 25, the
magistrate judge held an informal status conference and recalled defense counsel’s
waiver of the 90-day deadline. Brannon’s attorney stated that the waiver was
contingent upon starting the evidentiary hearing within the 90-day period, and
completing it beyond the deadline, if necessary. The magistrate judge proceeded
to schedule a restitution hearing for March 30, 2011, and entered an order denying
Brannon’s February 23 motion.
At the March 30 restitution hearing, the Government presented testimony
from Dr. Randall Green who psychologically evaluated Vicky before and after
Brannon’s indictment. Dr. Green explained the nature of Vicky’s sexual abuse as
a child as well as the dissemination of recordings of the abuse on the internet. Dr.
Green bifurcated the trauma that Vicky experienced as a result of her sexual abuse
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from the trauma that she experienced as a result of her knowledge of its
distribution via the internet. He further explained her estimated costs of future
treatment to be between $170,000 and $109,000. The Government presented
further evidence that Vicky receives notification, via her attorney, each time a
criminal is prosecuted for possessing her image. After the hearing, the magistrate
judge also reviewed victim impact statements from Vicky, her mother, and her
stepfather which detailed the effects of her humiliation, pain, and fear from
knowledge that people were viewing her image.
The magistrate judge entered a report and recommendation that the district
court order Brannon to pay $3,500 in restitution to Vicky. First, the magistrate
judge noted that restitution was mandatory pursuant to 18 U.S.C. § 2259 and that
Vicky was a “victim” as defined by the statute. The magistrate judge concluded
that Vicky’s statement and Dr. Green’s testimony showed that Brannon’s
possession of her image was a proximate cause of Vicky’s ongoing harm.
Furthermore, the magistrate judge found Dr. Green’s medical expense estimates to
be accurate and reasonable. To determine a reasonable restitution amount
attributable to Brannon, the magistrate judge researched 17 similar federal
restitution orders against “end users” of Vicky’s image. The magistrate judge
found that on average Vicky had been awarded $2,799.41 per case. The
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magistrate judge then reviewed the Government’s notice of 100 prior child
pornography restitution orders awarding to victims an average $4,321. Based on
these two averages, the magistrate judge recommended that Brannon pay Vicky
$3,500 in restitution. Over Brannon’s objections, the district court adopted the
magistrate judge’s report and recommendation and ordered restitution on July 19,
2011. Brannon then perfected this appeal.
II. DISCUSSION
A. The legality of the district court’s restitution order
Brannon argues that the district court erred in imposing restitution because
it did not hold a restitution hearing within the 90-day period prescribed in 18
U.S.C. § 3664(d)(5). The Government responds that pursuant to Dolan v. United
States, ___ U.S. ____, 130 S. Ct. 2533 (2010), the district court did not lose
authority to impose restitution by conducting a restitution hearing more than 90
days after sentencing. Brannon replies that his case is distinguishable from Dolan
because the district court in Dolan informed the defendant at sentencing that a
restitution order would be forthcoming; the only question to be determined at the
later hearing was the amount of restitution. However, as of the time of Brannon’s
sentencing hearing, the district court had not decided yet whether Brannon should
pay restitution.
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We review the legality of a restitution order de novo. United States v. Huff,
609 F.3d 1240, 1247 (11th Cir. 2010). Title 18 U.S.C. § 3664(d)(5) requires that
[i]f the victim's losses are not ascertainable by the date that is 10 days
prior to sentencing, the attorney for the Government or the probation
officer shall so inform the court, and the court shall set a date for the
final determination of the victim's losses, not to exceed 90 days after
sentencing.
In Dolan, the Supreme Court, interpreting 18 U.S.C. § 3664(d)(5), held that when
a sentencing court misses the 90-day deadline, the court is not deprived of its
authority to order restitution. ___ U.S. at ____, 130 S. Ct. at 2539. Brannon
identifies a limitation within the Dolan holding: a district court “retains the power
to order restitution – at least where . . . the sentencing court made clear prior to
the deadline’s expiration that it would order restitution . . . .” Id. at ____, 130 S.
Ct. at 2537 (emphasis added). While the district court in the instant case made it
clear that it was going to conduct a hearing on Vicky’s claim, the court did not
make it clear, prior to January 26, 2011, that it would order restitution.
Without this limiting language in Dolan’s holding, a district court could
potentially prejudice a defendant by delaying a restitution order for an inordinate
amount of time, with no regard for the statutory deadline; consequently, a delayed
restitution order could unfairly surprise the defendant with a financial obligation
for which he had no prior notice at his sentencing. Indeed, the Dolan Court
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discussed and left open the remote possibility that a delay in setting a restitution
hearing could prejudice a defendant and threaten his due process rights. Id. at
____, 130 S. Ct. at 2541–42. However, Brannon makes no argument that the
court’s delay has prejudiced him in any way. Furthermore, Brannon had adequate
notice before, during, and after sentencing to prepare his defense against the claim
for restitution. A victim reported her claim for restitution; the PSI noted the claim;
the sentencing court acknowledged the issue and referred it to a magistrate judge
for recommendation; and the magistrate judge attempted to decide the merits of
the claim in a timely manner. The relevant restitution statute, 18. U.S.C. § 2259,
required the court to award restitution if it found that Brannon caused harm to a
victim. Thus, during the 90-day statutory period, Brannon was aware of the
likelihood, and not just the possibility, of a forthcoming restitution order.
Consequently, it is appropriate, under the facts of this case, that we excuse the
district court’s untimely order because Brannon nevertheless had notice of his
restitution obligation and he was not prejudiced.
Moreover, after reading Dolan, we note policy reasons in support of the
Supreme Court’s decision that are also applicable here. In Dolan, the Supreme
Court found that the statutory deadline in 18 U.S.C. § 3664(d)(5) existed to
encourage the court’s “speed,” not to limit the court’s jurisdiction to a 90-day time
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period. Dolan, ___ U.S. at ____, 130 S. Ct. at 2538–39. Accordingly, the Court
found that “the Act’s efforts to secure speedy determination of restitution is
primarily designed to help victims of crime secure prompt restitution rather than to
provide defendants with certainty as to the amount of their liability.” Id. at ____,
130 S. Ct. at 2540. The Court reasoned that victims should not be made to go
without restitution simply because the Government or the district court fails to
ensure a timely restitution hearing. Id. at ____, 130 S. Ct. at 2540.
In addition to these policy motivations, the record here shows that
circumstances beyond the district court’s control led to the delay of Brannon’s
restitution hearing. For example, Brannon was in transport from Virginia to
Georgia, making him unavailable to appear at the attempted restitution hearing on
January 18, 2011. Furthermore, the attorneys expressed difficulty in contacting
and procuring information from Vicky’s attorney. Most importantly, after January
14, 2011, the magistrate judge proceeded under the assumption that Brannon’s
attorney voluntarily waived any objection to an untimely restitution hearing.
Because Brannon was not unfairly prejudiced, because the restitution statute exists
for Vicky’s benefit and not Brannon’s, and because the court was delayed by
circumstances beyond its control, we affirm the legality of the restitution order in
spite of the district court’s noncompliance with 18 U.S.C. § 3664(d)(5).
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However, even if the untimely restitution hearing constitutes reversible
error, we conclude from the record that Brannon’s attorney invited the district
court’s error. The record shows that when the parties held a telephonic hearing
before the magistrate judge on January 14, 2011, defense counsel represented that
he would waive the requirement that the restitution hearing be held within the 90-
day period. On this date, the district court had 12 days to hold the hearing in order
to meet the deadline. The magistrate judge was not unmindful of the 90-day
requirement; he stated that he did not want to “mess up by missing this 90-day
thing.” [Tr. of January 14, 2011 Hr’g at 18.] Defense counsel replied, “I won’t
say that you messed up.” [Id.] The magistrate judge responded, “Well, yeah, but
you’ll have to waive it. Can you do that?” [Id.] After the government’s
comments, the magistrate judge asked again, “Will you agree in case [the
hearing]’s outside the 90 days?” [Id.] Defense counsel unequivocally answered
yes. While defense counsel subsequently suggested beginning the hearing within
the 90-day period and, if necessary, completing the hearing outside the 90-day
period, his suggestion in no way negated his assertion that he would waive
objection to an untimely hearing.
On January 18, 2011, the magistrate judge reiterated his understanding that
Brannon had waived any objection to an untimely restitution hearing. Defense
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counsel equivocated, saying that he did not recall mentioning “anything about the
ultimate waiver.” [R. 97 at 5.] However, the record from January 14, discussed
supra, contradicts defense counsel’s memory. Moreover, defense counsel’s
January 18 statement is ambiguous and does not amount to a clear withdrawal of
the unambiguous January 14, 2011 waiver.
“It is a cardinal rule of appellate review that a party may not challenge as
error a ruling or other trial proceeding invited by that party.” United States v.
Love, 449 F.3d 1154, 1157 (11th Cir. 2006) (per curiam). “The doctrine of invited
error is implicated when a party induces or invites the district court into making an
error.” United States v. Stone, 139 F.3d 822, 838 (11th Cir. 1998) (per curiam).
When invited error is found to exist, it prevents us from invoking the plain error
rule and reversing. United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.
2005). Here, the magistrate judge, aware of the time constraint, relied on defense
attorney’s on-the-record waiver. It would be unfair for the district court or this
court to permit Brannon’s attorney to reverse course after explicitly waiving his
objection to an untimely hearing. Therefore, even if Dolan does not extend to
Brannon’s situation, we conclude that Brannon invited the district court’s error.
Consequently, this court will not entertain Brannon’s argument that the district
court lacked authority to impose restitution.
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B. Proximate causation and the amount of restitution
Brannon argues that the government failed to produce evidence that his
possession of Vicky’s image proximately caused her harm. The Government
responds that Dr. Green’s testimony demonstrated that Vicky suffers
psychological trauma from simply knowing that people like Brannon have viewed
images of her sexual abuse.
In determining whether proximate causation exists to support a restitution
order, we review the district court’s factual findings for clear error. United States
v. Washington, 434 F.3d 1265, 1267 (11th Cir. 2006). A district court’s factual
finding is clearly erroneous when a review of the evidence leaves us “with a
definite and firm conviction that a mistake has been committed.” United States v.
Foster, 155 F.3d 1329, 1331 (11th Cir. 1998). In United States v. McDaniel, 631
F.3d 1204, 1209 (11th Cir. 2011), we held that a district court did not err in
concluding that an end user of Vicky’s image was a proximate cause of Vicky’s
emotional trauma. For the reasons articulated in McDaniel, and because Brannon
cannot show clear error, we affirm the district court’s finding that Brannon
proximately caused harm to Vicky.
Alternatively, Brannon argues that the court erred in calculating an
appropriate amount of restitution. Brannon contends that Vicky will ultimately
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enjoy a windfall because so many defendants like himself have been, or will be,
ordered to pay restitution to Vicky. We review the district court’s factual finding
as to the specific amount of restitution for clear error. United States v. Futrell,
209 F.3d 1286, 1289 (11th Cir. 2000). Even though the determination of the
restitution amount is “an inexact science,” under the Mandatory Victim Restitution
Act, the district court is directed to “engage in an expedient and reasonable
determination of appropriate restitution by resolving uncertainties with a view
toward achieving fairness to the victim.” Huff, 609 F.3d at 1248 (11th Cir. 2010)
(quotations omitted). The district court is required to explain its findings with
“sufficient clarity” to enable us to perform our function on appellate review. Id.
Because the district court provided a reasoned explanation for its $3,500
restitution award, and because the court accounted for the likelihood that other
defendants would be ordered to make restitution to Vicky in the future, we affirm
the district court’s restitution calculation.
III. CONCLUSION
For the foregoing reasons, we hold that the district court did not err in
imposing restitution after missing the 90 day restitution hearing deadline required
by 18 U.S.C. § 3664(d)(5). Furthermore, we hold that the district court did not
clearly err in finding proximate cause of harm to a victim or in determining an
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appropriate restitution award. Accordingly, we affirm the district court’s order of
restitution.
AFFIRMED.1
1
Appellant’s motion to file Reply Brief out-of-time is GRANTED.
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