For the better part of four years, the 5th U.S. Circuit Court of Appeals has been dealing with In Re Amy Unknown, an appeal involving a child pornography victim who sought restitution from two criminal defendants convicted of possessing illegal images of her.
A key issue with which the appellate court struggled was whether 18 U.S.C. §2259 requires a U.S. district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution. The 5th Circuit previously issued conflicting decisions on that issue on mandamus and on direct appeal in In Re Amy. By 2010, In Re Amy was the most thoroughly litigated case in the country on the proximate cause issue. [See "Case Highlights Problems for Child-Porn Victims Seeking Restitution," Texas Lawyer, Feb. 15, 2010, page 1.]
But in an en banc Oct. 1 opinion heavy on grammar analysis and statutory interpretation, a divided 5th Circuit ruled, among other things, that §2259 does not require the government to show proximate cause to trigger a defendant’s restitution obligations.
The opinion, which includes several concurrences and dissents, vacated the 5th Circuit’s prior panel decisions. It also puts the 5th Circuit in conflict with seven other circuit courts of appeals that considered the same issue and decided that proximate cause is required for a child pornography victim to receive restitution, says Stan Schneider, who represents Doyle Randall Paroline in the case.
In Re Amy involves a set of appeals arising from two separate criminal judgments issued by different district courts within the circuit, the 5th Circuit wrote. “Both appeals involve restitution requests by Amy, a young adult whose uncle sexually abused her as a child, captured his acts on film, and then distributed them for others to see,” according to the opinion.
Paroline pleaded guilty to possessing 150 to 300 images of minors engaged in sexually explicit conduct, including at least two photos of Amy, the appeals court wrote. Michael Wright pleaded guilty to possession of more than 30,000 child pornography images, which included images of Amy’s abuse, the court noted.
According to the majority opinion, “Congress resisted using the phrase ‘proximate cause’ anywhere in §2259 . . . and further required the court to order the ‘full amount of the victim’s losses.’ The selective inclusion and omission of causal requirements in §2259′s subsections, together with the language pointing away from ordinary causation, suggest that Congress intended to depart from, rather than incorporate, a tradition of generalized proximate cause,” Senior Judge Emilio Garza wrote for the majority.
“This en banc court holds that §2259 only imposes a proximate result requirement in §2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in §2259(b)(3)(A)-(E),” Garza wrote. “Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We vacate the district courts’ judgments in both of the cases below and remand for further proceedings consistent with this opinion.”
Schneider of Houston’s Schneider & McKinney says, “The 5th Circuit stands alone across the country. Every circuit that has looked at this issue has said that there’s a causation requirement. We have the 1st, 2nd, 4th, 6th, 9th, 11th, D.C. Circuits — they have all addressed this issue, and they have all said there is a causation requirement.”
Schneider plans to appeal the decision to the U.S. Supreme Court. He says Paroline is as “equally liable as the person that caused the image or the person who sells the image.” And it doesn’t seem like the intent of Congress was to hold the person who viewed the images responsible, he says.
Robin Schulberg, a Covington, La., attorney who represents Wright on appeal, did not return a telephone call seeking comment.
Michael A. Rotker, a U.S. Department of Justice attorney who represented the government on appeal in In Re Amy Unknown, declines comment. Pursuant to the Crime Victims’ Rights Act, 18 U.S.C. §3771, the government usually is tasked with seeking restitution on behalf of victims, which it did for Amy in the case involving Wright. But in the case involving Paroline, the trial judge granted Amy’s request for party status so she could argue for restitution.
Amy’s lawyer on appeal, professor Paul Cassell of the University of Utah School of Law, says, “It’s the best opinion in the country, let’s put it that way. . . . The example we’ve used is: If there are 10 polluters all releasing noxious chemicals into the air, they can sort out amongst themselves who is responsible, but the victim always gets 100 percent recovery in those cases. Congress decided that victims should be able to recover the full amount of their losses in any of these cases. And that’s all the 5th Circuit has done here — enforce the will of Congress.”