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National Crime Victim Law Institute

In re Amy Unknown, — F.3d —, No. 09-31215, 2012 WL 4477444 (5th Cir. Oct. 1, 2012) (en banc).

October 10, 2012

The Fifth Circuit Court of Appeals sat en banc to review a set of appeals arising out of two separate criminal judgments issued by different district courts within the circuit.  Both appeals involve restitution sought for the benefit of “Amy,” a child-victim whose images of child sexual abuse underlie defendants’ respective convictions for possessing such images.  Prior panel decisions in these cases had found that a district court is not required to find that a defendant’s criminal acts proximately caused a crime victim’s losses before restitution may be ordered pursuant to 18 U.S.C. § 2559.  A special concurrence in one of the underlying panel decisions questioned this finding, applying the reasoning adopted by other circuits to require that proximate cause be established before restitution can be ordered.  The en banc hearing was granted to address the discrepancy between the Fifth Circuit’s position and that of other circuits, and to respond to concerns raised in the special concurrence.  Before addressing the restitution issue, the court found that crime victims are granted “only mandamus review” by the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (CVRA), to be reviewed according to traditional mandamus standards, and that the CVRA does not provide for direct appeals.  The court then concluded that it “reject[s] the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse.”  The court began by examining the structure and language of the statute, concluding that the proximate cause requirement drafted into the catch-all category of losses does not apply to any of the other categories of losses preceding the catch-all category.  The court also rejected the incorporation of tort principles of liability to require a showing of proximate cause, as Congress did not remain silent on issues of causation and instead chose to incorporate explicit causal requirements at two points in the statute.  This selective incorporation of causal requirements indicates that “Congress intended to depart from, rather than incorporate, a tradition of generalized proximate cause.”  Finally, the court addressed the issue of allocating restitution among numerous defendants in myriad cases, observing that Congress did not forbid the imposition of joint and several liability and suggesting that its application is supported in this context.  The court concluded by articulating a two-part inquiry for awarding restitution in cases involving the possession, receipt, or distribution of images of child sexual abuse: First, when a defendant is convicted of possessing, receiving, or distributing these materials, “a person is a victim … if the images the defendant possesses, receives, or distributes include those of that individual.”  Second, the trial court must “ascertain the full amount of the victim’s losses as defined [in the statute], limiting only [the catch-all provision] by the proximate result language contained in that subsection, and craft an order guided by the mechanisms described in § 3664, with a particular focus on its mechanism for joint and several liability.”  The court then vacated the district courts’ judgments below and remanded for proceedings consistent with this opinion.