United States v. Steven Rockett ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30213
17-30167
Plaintiff-Appellee,
D.C. No. 3:13-cr-00557-SI-1
v.
STEVEN DOUGLAS ROCKETT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted October 10, 2018
Portland, Oregon
Before: FISHER, CLIFTON and CALLAHAN, Circuit Judges.
Stephen Rockett appeals his convictions for one count of producing child
pornography outside the United States, see 18 U.S.C. § 2251(c), (e); one count of
engaging in illicit sexual conduct with a minor in a foreign place, see id. § 2423(c),
(e); five counts of producing or attempting to produce child pornography, see id.
§ 2251(a), (e); and one count of possession of child pornography, see id.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
§ 2252A(a)(5)(B), (b)(2). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. Because Rockett failed to object to the Dost factor jury instruction at
trial, we review for plain error. See United States v. Fuchs, 218 F.3d 957, 961-62
(9th Cir. 2000). Here, there is no plain error. We have repeatedly adopted and
applied the Dost factors as written. See United States v. Perkins, 850 F.3d 1109,
1121 (9th Cir. 2017); United States v. Overton, 573 F.3d 679, 686-89 (9th Cir.
2009); United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987). We also
have repeatedly confirmed that the sixth Dost factor properly considers the
depiction from the photographer’s – or intended viewer’s – perspective. See, e.g.,
United States v. Arvin, 900 F.2d 1385, 1389 (9th Cir. 1990) (“The statute reflects a
legislative determination that it is a form of child abuse for a photographer to pose
a child sexually for purposes of the photographer’s sexual gratification, and that
the abuse continues with dissemination of the photos for purposes of satisfying
others.”).
2. The sixth Dost factor does not make § 2251 unconstitutionally vague.
Rather than granting unfettered discretion to prosecutors, these factors add
specificity to the meaning of “lascivious exhibition of the genitals.” Rockett’s
contention that the statute is vague because the sixth factor is vague also ignores
2
the fact that the jury’s finding of lasciviousness must be based on the factors as a
whole, not just the sixth factor.
3. Sufficient evidence supports the verdicts on Counts 4, 5, 7 and 8. A
reasonable jury applying the Dost factors could have found that the actual and
attempted images associated with these counts depicted the “lascivious exhibition
of the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v). Similarly,
Rockett’s argument that his convictions on Counts 1 and 9 should be overturned
fails because the district court did not err by allowing the jury to consider
depictions related to other counts that constituted lascivious exhibitions under
Dost. Rockett did not move to sever the counts at trial.
4. The district court did not abuse its discretion by awarding restitution
for family therapy. Although Rockett argues to the contrary, the record shows the
court awarded family therapy to award the victims of Rockett’s crimes, not to
compensate their family members. District courts, moreover, “have broad
discretion in ordering restitution . . . to compensate the victims of sexual abuse for
the care required to address the long term effects of their abuse.” United States v.
Laney, 189 F.3d 954, 966 (9th Cir. 1999). Under 18 U.S.C. § 2259(b)(3),
recoverable losses include medical services relating to physical, psychiatric or
psychological care; physical and occupational therapy or rehabilitation;” and “any
other losses suffered by the victim as a proximate result of the offense.” The
3
restitution order was within “the bounds of the statutory framework” and supported
by testimony. United States v. Brock-Davis, 504 F.3d 991, 996 (9th Cir. 2007).
5. The district court properly awarded restitution for future educational
and occupational expenses. A psychologist, who had separately met with each of
the victims, testified that all four victims faced difficulty in school because of
Rockett’s conduct, and the victims needed educational assistance “because the
rehabilitation of these children [does not] end with their psychology issues.”
Although other factors may have contributed to the victims’ inability to perform at
or attend school, “it was perfectly reasonable for the [district court] to conclude
that the additional strain or trauma stemming from defendant’s actions was a
substantial factor in causing the ultimate loss.” United States v. Doe, 488 F.3d
1154, 1158 (9th Cir. 2007). Rockett suggests these awards were improper because
there is no guarantee the victims will actually complete school or enroll in college.
We have, however, affirmed restitution in similar cases without requiring actual
use of the award for its specified purpose. See id. at 1160-61; Laney, 189 F.3d at
967 (“[I]f Congress intended crime victims who required long-term psychological
or physical therapy to receive restitution only after they actually paid their
therapists, it created a strangely unwieldy procedure in Section 3664, which would
require a victim to petition the court for an amended restitution order every 60 days
for as long as the therapy lasted.”). The district court did not abuse its discretion.
4
AFFIRMED.
5