Child Pornographer Remains Anonymous In Ninth Circuit Ruling – and Limits His Restitution Exposure by Exploiting Developing World Victims (Updated)

Appellate Law & Practice and Decision of the Day both report on what the latter calls a “remarkable decision” today from the Ninth Circuit. Both write about the fact that in United States v. Doe, case no. 05-50474 (May 29, 2007), the Ninth Circuit allows the defendant — a child pornographer who pleaded guilty to molesting and photographing young teen boys on his trips outside the U.S. — to remain anonymous in the disposition of the appeal.

Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says). Decision of the Day is appalled that the circuit judges would allow this, especially in light of their reputations:

Shame on the prosecutors and the courts for allowing a criminal defendant to remain anonymous, especially in light of the fact that this was his fourth time getting caught with kiddie porn. Neither the district judge – GWB appointee Klausner – nor the three appellate panelists – Reagan appointees O’Scannlain and Hall and GWB appointee Callahan – have a reputation for being generous with criminal defendants.

“S. COTUS” at Appellate Law & Practice takes a slightly different view —

Perhaps these appointees wanted to make things easier for a prosecutor, or the so-called “victims.” In reality, there are a lot of sealed proceedings out there, but usually both sides agree to it, and I suspect that these judges were well-aware of this, and didn’t want to rock the boat.

The so called victims? I’ll get to that later. Back to anonymity for now.

The court notes that allowing the use of a pseudonym is reserved for “exceptional cases where necessary to protect a person from injury or harassment.” But the judges never tell us how that standard applies in this case. In fact, the whole issue of anonymity rates no more than a footnote in the opinion. The defendant made a motion for the disposition to be filed using a pseudonym, and instead of explaining why this was necessary, the court merely continues the sealed nature of the proceedings begun in the district court. Unless they could not discuss this without imposing the harm they sought to avoid through use of the synonym, why did they avoid this discussion? The docket shows no separate order on the motion.

The defendant’s anonymity seems especially inappropriate in light one of his assertions of error: that the victim statements in the pre-sentencing report were anonymous! He loses on this issue, though.

While he also loses on the issue of whether he should have to pay the restitution ordered by the district court, it’s somewhat shocking to see that the restitution the court affirms amounts to $16,475 total for eight victims – about $2,060 per victim. Amazingly, this includes two years of monthly counseling, vocational training (to make up for some of the victims having to leave school), and a management fee to the organization coordinating the services. For traveling abroad to an unnamed “developing world” country, Doe gets bargain basement restitution costs — then complains about them.

Doe is sentenced to 204 months. As for “S. COTUS’s” reference to “so-called ‘victims’ ” — read the excerpt from the plea agreement, then see if you agree.

UPDATE (5/30/07): “S. COTUS” at Appellate Law and Practice has updated his post to explain why he used the term “so-called ‘victims.’ ” He concedes that the children in this case were genuine victims. He makes a decent case for attributing it to carelessness, and I take him at his word.