HAMMOND | The criminal case against admitted child pornography collector Mark Ontiveros, of Portage, could set precedent that might influence a nationwide legal debate on whether offenders can be asked to pay heavy restitution orders to the children depicted in their porn collections.
Ontiveros' lawyer, Bryan Truitt, denies his client directly caused enough harm to justify the more than $193,310.86 prosecutors want Ontiveros ordered to pay "Vicky," a girl who was sexually abused on camera by her father. Ontiveros' porn collection included at least one image of "Vicky."
Assistant U.S. Attorney Jill Trumbull-Harris wrote in court filings that a ruling on the restitution request would be the first on such a matter in the federal Northern District of Indiana. A ruling on restitution by Ontiveros from Hammond-based federal Judge Joseph Van Bokkelen would not establish binding precedent for other judges to follow. But higher up the hierarchy of legal precedent, 7th U.S. Circuit Court of Appeals judges could issue a ruling that would apply to similar cases in their federal jurisdiction, which covers Indiana, Illinois and Wisconsin. Truitt said the 7th Circuit has yet to rule on restitution in a case such as his client's.
Ontiveros is the local face on a legal issue that remains unresolved in jurisdictions around the country as lawyers fire off more restitution requests on behalf of victims such as "Vicky."
In Minnesota last month, a federal judge ordered prosecutors to explain why they didn't ask for restitution in a case involving child porn pictures. Judges from the 5th U.S. Circuit Court of Appeals recently upheld a Texas judge's decision to deny restitution because prosecutors didn't show how much harm the specific defendant caused.
Though the 5th Circuit ruling isn't binding outside that court's jurisdiction, Truitt said that decision is "favorable" for his case.
In her restitution request, Trumbull-Harris argued it is "well recognized" that because child pornography consumers support the market for the material, the "end-user" of the pornography harms the victim even without making physical contact. Truitt argued in his response memo that because Ontiveros' crimes represent a tiny proportion of the wrongdoing perpetrated upon the girl, he was not the cause of enough harm to be held accountable for a large dollar amount.
Prosecutors claim investigators found Ontiveros had collected more than 1,300 images and 18 videos showing children "posing lasciviously" or being raped or molested. Ontiveros admitted to police he viewed child pornography for as many as three hours per day, sometimes when his young son was in the room, before he was arrested in summer 2008, according to court records.
Ontiveros had pleaded guilty under an agreement with prosecutors, but that deal has crumbled. Van Bokkelen allowed Ontiveros to withdraw his guilty plea recently. Truitt said the plea agreement presented little advantage to Ontiveros, who faces a mandatory minimum sentence of five years. Truitt said Ontiveros plans to enter another guilty plea without any plea agreement.
Prosecutors had asked for a nine-year prison sentence before the plea deal fell apart. Truitt asked for a five-year term.
The Associated Press contributed to this report.