In a ruling that deepened a circuit split, a federal appeals court has remanded two $1 million-plus restitution orders stemming from child pornography convictions for a review of each defendant’s responsibility for a victim’s injuries.
On February 27, the U.S. Court of Appeals for the Sixth Circuit issued a joint ruling in the unrelated cases: U.S. v. Gamble and U.S. v. Crawford. The ruling remanded the cases to two Eastern District of Tennessee judges to "reconsider the extent to which the defendants must pay restitution where they share responsibility for [the victim's] injuries with hundreds of other child pornography viewers."
Eight other circuits have held that a statute mandating restitution for sexual exploitation of children has a general proximate result requirement. These include the First, Second, Third, Fourth, Seventh, Ninth, Eleventh and D.C. circuits. An en banc Fifth Circuit ruling, in contrast, held that Congress intended to impose joint-and-several liability among multiple defendants.
James Gamble’s March 2011 restitution order was returned to Chief District Judge Curtis L. Collier. Gamble pleaded guilty to one count of possession of child pornography in November 2010. Collier sentenced him to 82 months in prison, supervised release for life, $1,002,766.85 in restitution and a $100 special assessment.
Shawn Crawford pleaded guilty in December 2010 to one count of knowingly receiving child pornography. His conviction bounced back to District Judge Harry S. Mattice Jr., who in April 2011 sentenced him to 78 months in prison, 25 years of supervised release, $1,010,814.83 in restitution and a $100 special assessment.
Judge John Rogers wrote the majority opinion, joined by Judge Algenon Marbley of the Southern District of Ohio, who sat on the panel by designation. Sixth Circuit Judge Raymond Kethledge joined in part and issued a separate concurrence agreeing with the judgment and concurring on all issues except the majority’s restitution analysis. Throughout the opinion, the unnamed victim is referred to by the pseudonym "Vicky."
Rogers wrote that the restitution statute and Sixth Circuit precedent require the government to show that the victim’s costs "were proximately caused by the defendant’s offense."
"The statute is also meant to hold the defendant responsible for the damage he caused, but not for damage he did not cause, as evidenced by the causation requirement. These purposes when considered together lead to the conclusion that liability is to be apportioned in a reasonable way that leads to full restitution, without eviscerating the causation requirement," Rogers wrote.
He observed that the government’s system "appears to be a pragmatic solution that district courts may use as a framework." That formula calls for a district court to determine the pool of a victim’s provable losses not traceable to a single defendant according to the proximate cause standard and to then determine what damage a given defendant caused.
Kethledge wrote that he would "direct the district court to make a more flexible and open-ended determination of each defendant’s share of responsibility for Vicky’s losses." He added that the defendant’s comparative moral fault should be the standard for determining restitution: "Specifically, I would ask: what is the defendant’s culpability relative to the various other actors who contributed to the victim’s harm? This determination would resemble the comparative-fault determinations that juries make every day in civil cases."
Paul Cassell, a criminal law professor at the University of Utah S.J. Quinney College of Law, who filed a brief for amicus Vicky and participated in oral argument, said he’s aware of three pending petitions for certiorari to the U.S. Supreme Court on this issue.
"We think that Congress commanded that each defendant is jointly and severally liable for the full amount of their losses as the Fifth Circuit en banc has recently ruled," Cassell wrote.
Crawford’s lawyer, Leslie Cory of Ortwein & Cory in Chattanooga, Tenn., did not respond to a request for comment.
Gamble’s lawyer, Laura Davis, an assistant federal public defender at the Knoxville branch of the Federal Defender Services of Eastern Tennessee Inc., also did not respond to a request for comment.
Richard Friedman, a lawyer in the appellate section of the Justice Department’s Criminal Division, referred questions to the public affairs department, which also did not respond.
Sheri Qualters can be contacted at firstname.lastname@example.org.