United States District Court, W.D. Kentucky, Louisville
Charles R. Simpson III, United States District Court Senior
matter is before the court on motion of the United States for
an order of restitution to be paid to victim Jane Doe in this
6, 2017, the defendant, Keith Napier, pled guilty to one
count of sex trafficking of a minor, in violation of 18
U.S.C. § 1591. In his plea agreement, Napier agreed to
the payment of mandatory restitution, but the parties had not
reached an agreement on the amount. On October 31, 2017,
Napier was sentenced to a term of 121 months imprisonment and
lifetime supervised release.
United States has now moved for an order of restitution in
the sum of $50, 400.00, purportedly representing the full
amount of the victim's losses, as mandated by 18 U.S.C.
§ 1593(b)(1). Such losses include the greater of the
gross income or value to the defendant of the victim's
services or labor or the value of the victim's labor as
guaranteed under the minimum wage and overtime guarantees of
the Fair Labor Standards Act (29 U.S.C. § 201 et
seq.).” 18 U.S.C. § 1593(b)(3).
An order of restitution under this provision is issued and
enforced in accordance with procedures set out in 18 U.S.C.
§ 3664, in the same manner as an order under the
Mandatory Victims Restitution Act, 18 U.S.C. § 3663A. 18
U.S.C. § 1593(b)(2). As such, “[t]he court shall
order restitution to each victim in the full amount of each
victim's losses as determined by the court and without
consideration of the economic circumstances of the
defendant.” Id. § 3664(f)(1)(A).
“Any dispute as to the proper amount or type of
restitution shall be resolved by the court by the
preponderance of the evidence.
United States v. Lewis, 791 F.Supp.2d 81, 90 (D.D.C.
defendant concedes that restitution is mandatory under the
statute. See also Lewis, 791 F.Supp.2d at 90,
citing United States v. Fu Sheng Kuo, 620 F.3d 1158,
1164 (9th Cir.2010) (“[T]he Trafficking Act mandates
restitution that includes a defendant's ill-gotten
gains.”); United States v. Mammedov, 304
Fed.Appx. 922, 927 (2d Cir.2008) (“[T]he express terms
of 18 U.S.C. § 1593 require that the victims in this
case, i.e., persons who engaged in commercial sex acts within
the meaning of 18 U.S.C. § 1591, receive restitution,
notwithstanding that their earnings came from illegal
conduct.”). The amount of restitution need not be
proven with exactitude, and this court does not abuse its
discretion in ordering a sum shown by the United States to be
supported by the record.
United States has based its calculation on the unsworn
affidavit of Federal Bureau of Investigation Task Force
Officer Mark Bramer who worked on the investigation of Keith
Napier. Bramer states that he interviewed Jane Doe in July of
2017, and reviewed text messages on Keith Napier and Jane
Doe's cellular phones which purportedly contained offers
for commercial sex acts for a wide range of prices, various
periods of time, and various locations. Jane Doe reported
that she worked from the beginning of March 2016 to May 5,
2016, with the exception of one week when she returned to her
mother's house. She stated to Bramer that she worked 4 to
5 days per week seeing ten clients a day and charged them
around $200 each. Jane Doe's statement appears at least
partially inconsistent with the cell phone texts Bramer
states he reviewed which related varying rates charged,
lengths of encounter, and differing locations. This
constitutes the sum total of the evidence offered in support
of the proposed valuation of Jane Doe's services to
United States' proposed sum of $50, 400.00 accounts for 8
weeks from the beginning of March 2016 to May 5, 2016 when
Napier was arrested. One week was subtracted from this period
during which Jane Doe returned home to her mother's
house. The price for commercial sex acts with clients varied
between $80 for V2 hour up to $200 for an hour with a client.
With no further information, the United States took an
average of $140/per client, an average 4.5 days per week, and
total of 10 clients per day to conclude that $50, 400.00 is
an appropriate calculation of the value of Jane Doe's
services. The court disagrees.
preponderance of the evidence concerning the services
performed by Jane Doe for the benefit of Napier establishes
that she worked at least 4 days per week, at a rate of at
least $80 per client, for 10 clients per day, over a period
of 8 weeks. This yields a total award of restitution in the
amount of $25, 600.00. There is no evidence substantiating by
a preponderance of the evidence the particular averages
offered by the United States. Such figures are wholly
guesswork. While precision in these calculations is not
mandated, the court must find that the amounts are
substantiated by record evidence. The court finds that an
award of $25, 600.00 meets the mandate and purpose of the
an Order of Restitution will be entered herein this date in
accordance with this memorandum opinion.