A federal appeals court has denied a mandamus petition by a child pornography victim who sought to collect $952,791 in documented losses from one defendant and was awarded $3,333 in restitution.
On March 11, the U.S. Court of Appeals for the Eighth Circuit ruled, 2-1, to deny the petition of the victim, referred to by the pseudonym "Vicky." The court found that all of her losses were not attributable to the criminal defendant, Robert Fast.
In addition, the court granted motions by Fast and the U.S. government to dismiss Vicky’s direct appeal because she lacks standing as a nonparty.
Vicky appealed a restitution order issued by Senior Judge Richard Kopf of the District of Nebraska in July 2012. The order was based on her losses after June 25, 2010, when Fast began committing the crime.Fast pleaded guilty to one count of receiving and distributing child pornography.
Kopf initially ordered Fast to pay Vicky $19,863.84 in restitution in October 2011. Fast appealed, and in May 2012 the Eighth Circuit granted Fast’s and the government’s joint motion to remand the case for reconsideration of the victim’s restitution award based on a showing of proximate cause for all losses claimed by the victim.
Vicky has collected $271,937.23 from defendants in other cases.
Judge Duane Benton wrote the majority opinion in In re Vicky, Child Pornography Victim, joined by Judge Diana Murphy. Judge Bobby Shepherd filed a concurring-in-part and dissenting-in-part opinion.
Benton first found that as a nonparty, Vicky had no standing to bring a direct appeal: "She may proceed only by mandamus." He then determined that Vicky met the first mandamus condition of no adequate alternative for relief.
With regard to her restitution appeal, Benton wrote: "Congress determined that these restitution offenses typically proximately cause the losses enumerated in [the] subsections [of the restitution statute for sexual exploitation of children]. Congress did not mean that a specific defendant automatically proximately causes those losses in every case."
He also noted that while Vicky wants a restitution award that equals her net documented losses of nearly $1 million, she suffered losses before Fast possessed any images of her: "[A]ll $952,759.81 of Vicky’s losses are not clearly and indisputably traceable to Fast’s crime."
Shepherd concurred with the majority’s direct appeal ruling and that Vicky meets the first mandamus condition of no adequate alternative for relief.
He dissented on the proximate cause analysis and the restitution ruling, writing that he would follow the approach of the Fifth Circuit and hold that only damages for "any other losses suffered by the victim as a proximate result of the offense" under the statute must meet the proximate cause requirement.
"To the extent that the harm resulting from the offense involves medical services, therapy or rehabilitation, transportation, temporary housing, child care, lost income, or attorneys’ fees and costs under [the statute's other] subsections, a defendant must pay restitution for the full amount of those harms, regardless of whether the defendant proximately caused them," Shepherd wrote.
Paul Cassell, a criminal law professor at the University of Utah S.J. Quinney College of Law who argued for Vicky, said he and his client are disappointed by the ruling but "happy the divisive issues have been clearly framed by Judge Shepherd’s dissent."
Cassell said Vicky would soon file a petition for certiorari to the U.S. Supreme Court. "We’re hopeful the Supreme Court will grant cert in light of disarray among the courts of appeals on how to address this important and recurring issue."
Nine other circuits that have held that a restitution statute for sexual exploitation of children has a general proximate cause requirement. These include the First, Second, Third, Fourth, Sixth, Seventh, Ninth, Eleventh and D.C. circuits.
Only the Fifth Circuit, in an en banc ruling, has held that Congress intended to impose joint-and-several liability among multiple defendants.
Steven Russell, an assistant U.S. attorney in the District of Nebraska, argued for the government. In an e-mailed statement, the district’s criminal chief, Jan Sharp, wrote, "The decision simply hinged on a disputed interpretation of federal law which the Court resolved."
Jennifer Gilg of the Federal Public Defender’s office in Omaha, who argued for Fast, referred questions to Fast’s district court lawyer, Michael Hansen of the Federal Public Defender’s office in Lincoln. Hansen did not respond to requests for comment.
Sheri Qualters can be contacted at email@example.com.
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