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United States v. Bour

United States District Court, N.D. Indiana, Hammond Division

January 5, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER M. BOUR, Defendant.

OPINION AND ORDER

RUDY LOZANO, District Judge.

This matter is before the Court on the Motion for Victim Restitution, filed by the Government on July 25, 2014. (DE #95.) After due consideration, this motion is GRANTED. The Court hereby ORDERS Defendant to pay, forthwith, a total of $75, 000 in victim restitution to the Clerk of the Court in this judicial district. As proceeds from the sale of Defendant's property in the amount of $8, 303.64 are currently being held by the United States Marshal, the Court ORDERS the United States Marshal to surrender those funds to the Clerk of the Court immediately as partial restitution payment.[1] The Clerk of the Court is ORDERED, in turn, to disburse those and any future funds received from Defendant (or on his behalf) to Jane Doe and Jane Doe 2 c/o attorney Geoffrey Giorgi at 9205 Broadway, Suite B, Merrillville, IN 46410 (Telephone: XXX-XXX-XXXX). Pursuant to his appointment by the Lake County Superior Court, attorney Geoffrey Giorgi is, in turn, DIRECTED to equally divide any and all restitution funds received in this case and to deposit those funds into Horizon Bank Account # XXXXXXX and/or Horizon Bank Account # XXXXXXX, which accounts are to be maintained for the sole benefit of Jane Doe and Jane Doe 2 until this restitution obligation has been met in full and all funds collected have been disbursed to Jane Doe and Jane Doe 2, or, in the case of their early passing, to their heirs.

BACKGROUND AND FACTS

On June 5, 2013, a Superceding Indictment was filed charging Defendant, Christopher M. Bour, with the following: (1) Count 2 - purchasing Jane Doe, an infant child, with knowledge that she would be portrayed in a visual depiction assisting him to engage in sexually explicit conduct in violation of 18 U.S.C. section 2251A(b); (2) Counts 3 & 4 - producing child pornography featuring Jane Doe in violation of 18 U.S.C. section 2251(a); (3) Count 5 - producing child pornography featuring Jane Doe 2 also in violation of 18 U.S.C. section 2251(a); and (4) Count 8 - possessing child pornography in violation of 18 U.S.C. section 2252(a)(4). (DE #32.) The Superceding Indictment includes forfeiture allegations referencing Defendant's residence at the time of his arrest as 5190 Indiana Place in Gary, Indiana. ( Id. at 9.)[2] Defendant pled guilty to all counts without the benefit of a plea agreement, and this Court adjudged him guilty on January 30, 2013. (DE's #47 & #50.) A sentencing hearing was held on May 15, 2014, wherein Defendant was sentenced to life in prison.[3] (DE #67.)

During the sentencing hearing, the Court questioned the parties about their preliminary restitution agreement. (DE #94, pp. 25-28.) The Government indicated that Defendant, through his attorney, had agreed to pay approximately $8, 300 towards victim restitution from the sale of his Gary, Indiana property, but that more time was needed to finalize the restitution details which included having a Guardian Ad Litem appointed and a bank account set up for the victims' benefit. ( Id.; see also DE #95, pp. 2-3.) The Government further noted that it intended to seek additional restitution from Defendant above and beyond the agreed upon amount. ( Id. ) The Court set a deadline of August 5, 2014, for the restitution determination. (DE #67.)

In May, Attorney Geoffrey Giorgi was appointed as Guardian Ad Litem for the Estate of Minor Children Jane Doe and Jane Doe 2, and bank accounts were set up for the children with Horizon Bank in June. (DE #95, p. 3.) Throughout June and July of 2014, the parties (including co-Defendant Natisha Hillard) participated in restitution settlement negotiations. ( Id. at 4.) While Natisha Hillard ultimately agreed to pay $12, 500 in restitution to each child, Defendant, through his attorney, notified the Government that he did not agree to any additional amount of restitution. ( Id. ) Thus, the Government filed the instant Motion for Victim Restitution on July 25, 2014. ( Id. ) In it, the Government requested that the Court enter an order requiring Defendant to pay victim restitution of $37, 500 to each of Jane Doe and Jane Doe 2 pursuant to 18 U.S.C. section 2259. ( Id. at 1.) The Court ordered Defendant to file a response by August 4, 2014. (DE #96.)

On July 31, 2014, Defendant's attorney, Matthew Soliday, filed a motion to withdraw noting that Defendant wished to represent himself regarding the restitution matter. (DE #97.)[4] That same day, the Government filed a response asking the Court to set a hearing on the motion to withdraw and to make clear that it intended to order some amount of restitution in the case. (DE #98, pp. 2-4.) On August 12, 2014, a hearing was held wherein the Court granted the motion to withdraw, allowed Defendant to proceed pro se, struck Defendant's previously filed motions, and allowed his pro se response to the Government's restitution motion to stand. (DE #107; see also Defendant's refiled response at DE #108.) The Court took the motion for victim restitution under advisement and stated the following via written order:

Pursuant to the Mandatory Restitution Act ("MRA"), this Court finds restitution to be applicable in this case. 18 U.S.C. § 3664. However, the Court is still receiving information and briefing from the parties regarding possible restitution payments that may be owed. Therefore, while the Court intends to order restitution, the Court is not in a position to make a final determination within the 90 day deadline set out in the MRA. 18 U.S.C. § 3664(d)(5). A final determination of restitution will be forthcoming. See Dolan v. United States, 560 U.S. 605 (2010)(holding that a sentencing court can order restitution more than 90 days after sentencing when it makes clear prior to the deadline's expiration that it would order restitution).

(DE #106.) The Government filed its reply on August 15, 2014. (DE #109.) Defendant filed a Motion to Order the United States Marshal to Pay Special Assessment on August 28, 2014. (DE #110.) The Government has not responded to that motion. Finally, Defendant filed a sealed, ex parte motion on September 22, 2014, which will be dealt with via separate order. (DE #113.) Thus, all motions are ripe for adjudication.

As noted above, the Government's motion requests that the Court enter an order requiring Defendant to pay victim restitution of $37, 500 to each of Jane Doe and Jane Doe 2. In support of this request, the Government has submitted a report from Myra D. West, a licensed clinical psychologist, who has concluded that, because of their experiences, Jane Doe and Jane Doe 2 will likely "need a minimum of 5-10 years of counseling, once a week for each of these victims, keeping in mind that there are significant, potentially lifelong, effects of their sexual abuse/traumatic experiences and the range could, in fact, be much larger."[5] (DE #95-1, p. 2.) In coming to this conclusion, although she did not interview the victims, Dr. West reviewed the record and became familiar with the facts of this case, considered social science research and empirical evidence as discussed in her report, and relied upon her extensive experience interviewing and treating victims of childhood sexual abuse. ( Id. at 1-2; DE #109-5, Curriculum Vitae of Myra D. West.)[6] In her report, Dr. West discusses the impact of childhood sexual abuse and the resultant need for treatment. (DE #95-1, p. 1.) She acknowledges the potential psychiatric difficulties, health risks, medical diseases, and relational problems associated with such abuse. ( Id. ) Dr. West points out that these issues can be exacerbated when a victim's parent is involved in the abuse. ( Id. ) Citing to Bruce Perry, PhD, (2009), Dr. West also notes that it is a common misperception that infants and toddlers are unlikely to remember their abusive/traumatic experiences because:

[T]he brain is designed to store and recall our experiences in multiple ways;... motor, vestibular, emotional, social and cognitive memories and that it is the experiences of early childhood that create the foundational organization of neural systems that will be used for a lifetime.... [T]he long term adverse effects of sexual abuse in infancy are the result of memories - physiological state memories, motor-vestibular memories and emotional memories, which in later years can be triggered by a host of cues that are pervasive. Although an infant may not retain a cognitive memory of their sexually abusive experiences, ... the relational difficulties mentioned previously have their roots in this betrayal in infancy.

( Id. at 1-2) (internal quotation marks omitted). Dr. West states that therapy at varying times throughout their development is an "essential component" of working with such victims and that "[w]hile the content of all sessions may not be related specifically to the sexual abuse or trauma experienced, the treatment is directly related to the abusive/traumatic events and the impact they have on the child's overall development and relational attachments." ( Id. at 2.) Dr. West also notes that additional, ongoing therapy may be necessary to address the "disrupted attachment with their caregiver and to assist in the development of attachment to other appropriate adults and caregivers in the child's life" in situations where children are separated from their parents as a result of sexual abuse or traumatic experiences. ( Id. )

The Government argues that, based on Dr. West's conclusion that each child will likely need a minimum of 5-10 years of counseling, $50, 000 per victim for future psychological treatment is a reasonable, conservative estimate.[7] (DE #95, pp. 6-7.) The Government further argues that Defendant should pay the bulk of these costs (as opposed to co-Defendant Natisha Hilliard) as he was responsible for causing 75% of the harm to the victims because:

a. Bour proposed that he sexually abuse the victims and attempted to put Hillard at ease by claiming to have had a similar arrangement in ...

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