Lead Opinion
Robert M. Fast pled guilty to one count of receiving and distributing child pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court
I.
The CVRA grants crime victims, including Vicky, the “right to full and timely restitution as provided in law.” 18 U.S.C. § 3771(a)(6). The district court must order restitution. Id. § 2259(a), (b)(4)(A). “The language of 18 U.S.C. § 2259 reflects a broad restitutionary purpose.” In re Amy Unknown,
On remand, the district court determined “that proximate cause is required for each element of restitution under 18 U.S.C. § 2259.”
II.
Fast and the government move to dismiss Vicky’s direct appeal of the restitution order, arguing that she lacks standing because she is not a party to the case. “Standing is a fundamental element of federal court jurisdiction.” Curtis v. City of Des Moines,
Vicky did not successfully intervene, and the CVRA does not grant her party status. The CVRA grants the government the
Vicky invokes 28 U.S.C. § 1291. But “ § 1291’s broad jurisdictional grant does not peraiit us to ignore the requirement that the appellant have standing to appeal.” Stoerr,
In Kones, “a purported victim sought to appeal the district court’s conclusion that she was not entitled to restitution.” Stoerr,
In the Curtis case, this court allowed nonparties to appeal because they had “an interest in the cause litigated and participated in the proceedings actively enough to make [them] privy to the record ... [even though] [they] w[ei*e] not named in the complaint and did not intezwene.” Curtis,
Vicky argues that because the CVRA grants victims the “right” to restitution, see 18 U.S.C. § 3771(a)(6), she has an “injury” that gives her standing to appeal. But see United Sec. Sav. Bank,
Vicky cites additional cases where a non-party crime victim was allowed to appeal.
Vicky cites several cases that allowed other nonparties to appeal in criminal cases. See United States v. Antar,
Vicky claims that jurisdiction is nonetheless proper under the collateral order doctrine. See Mohawk Industries, Inc. v. Carpenter,
III.
According to Fast and the government, the traditional standard for mandamus applies, requiring Vicky to show that (1) she lacks “adequate alternative means” to obtain relief, (2) her right to “issuance of the writ is clear and indisputable,” and (3) “the writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Court for Dist. of Columbia,
The CVRA states:
If the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus. The court of appeals may issue the writ on the order of a single judge.... The court of appeals shall take up and decide such application forthwith within 72 hours after the petition has been filed.... If the court of appeals denies the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion.
18 U.S.C. § 3771(d)(3). That a court must “take up and decide” the petition within 72 hours “says nothing about the standard of review.” Monzel,
“That Congress called for ‘mandamus’ strongly suggests it wanted ‘mandamus.’ ” Monzel,
Vicky argues that applying the traditional standard for mandamus renders superfluous the right to petition for mandamus under the CVRA, because the All Writs Act, 28 U.S.C. § 1651, already grants that right. But the CVRA, unlike the All Writs Act, requires the court to “take up and decide” the petition within 72 hours and to issue a “written opinion” if it denies relief. See 18 U.S.C. § 3771(d)(3). Thus, the CVRA affords victims “more rights than they would otherwise have.” In re Antrobus,
Vicky claims four circuits support her position. With little discussion, the Second Circuit opined, “It is clear ... that a petitioner seeking relief pursuant to the [CVRA’s] mandamus provision ... need not overcome the hurdles typically faced by a petitioner....” In re W.R. Huff Asset Mgmt. Co., LLC,
This court therefore applies the traditional standard for mandamus. “The issuance of a writ of mandamus is an extraordinary remedy reserved for extraordinary situations.” In re MidAmerican Energy Co.,
Vicky meets the first traditional condition for mandamus — no adequate alternative means to obtain relief — because mandamus is her only avenue for relief. See Cheney,
IV.
Vicky argues that, to be liable, Fast need not have proximately caused the losses defined in subsections 2259(b)(3)(A) through (E). This court reviews de novo the district court’s interpretation of section 2259. United States v. Schmidt, 675 F.Bd 1164, 1167 (8th Cir.2012). All but one circuit court to have addressed the issue read subsections 2259(b)(3)(A) through (E) .to require proof of proximate cause. Laraneta,
Section 2259 defines the “full amount of the victim’s losses” as including costs for:
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.
18 U.S.C. § 2259(b)(3) (emphasis added). Vicky claims that only the losses in the last subsection require proof of proximate cause. She invokes the “rule of the last antecedent” to conclude that the limiting clause — “as a proximate result of the offense” — in the last item of a series modifies only that last item. See Cincinnati Ins. Co. v. Bluewood, Inc.,
Neither canon is absolute. See Barnhart,
Similarly, the First Circuit — interpreting section 2259 at issue here — reasoned that the “express inclusion [of the specific losses in subsections 2259(b)(3)(A) through (E) ] ... indicates that Congress believed such damages were sufficiently foreseeable to warrant their enumeration in the statute.” Kearney,
This court agrees. Congress determined that these restitution offenses typically proximately cause the losses enumerated in subsections 2259(b)(3)(A) through (E). Congress did not mean that a specific defendant automatically proximately causes those losses in every case. The government still has to prove that the
V.
Vicky contends that the district court failed to award her the statutorily mandated “full amount of [her] losses.” See 18 U.S.C. § 2259(b)(1). Because issuance of the writ of mandamus is an extraordinary remedy, she must show that the district court clearly and indisputably erred. Restitution is mandatory under section 2259. Id. § 2259(a), (b)(4)(A). The restitution order “shall be issued and enforced in accordance with section 3664.” Id. § 2259(b)(2). Under that section, “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.” Id. § 3664(e) (emphasis added). The government bears the “burden of demonstrating the amount of the loss sustained by a victim as a result of the offense.” Id.
“[I]njury to the child depicted in the child pornography ... is a readily foreseeable result of distribution and possession of child pornography.” Kearney,
Vicky claims the restitution award should be $952,759.81 — her (net) documented losses to date. Fast did not possess any images of her until June 25, 2010. But she suffered losses before then. See, e.g., McDaniel,
Vicky cites Hayes, where the defendant was liable for the victim’s costs in obtaining civil protection orders even though the offense — violating the protection orders by crossing state lines — occurred after the victim incurred the costs. Hayes,
Moreover, all $952,759.81 of Vicky’s losses are not clearly and indisput
The district court ordered Fast to pay $3,333 restitution. The court explained that this award consists of “$2,500 for medical and psychiatric care, occupational therapy, and lost income under 18 U.S.C. § 2259(b)(3)(A), (B), & (D),” and $833 for “attorney fees and costs under 18 U.S.C. § 2259(b)(3)(E).” It reasoned that $3,333 represents the total amount of loss Fast proximately caused Vicky. The court fulfilled its duty to award Vicky the “full amount of [her] losses.” See id. § 2259(a), (b)(1) (“[T]he court shall order restitution ... [and] the defendant [shall] pay ... the full amount of the victim’s losses as determined by the court.”); id. § 2259(c) (“‘[Vlictim’ means the individual harmed as a result of a commission of a crime under this chapter.”); see also Kerr,
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The motions to dismiss Vicky’s direct appeal are granted. The petition for mandamus is denied.
Notes
. The Honorable Richard G. Kopf, United States District Judge for the District of Nebraska.
. This court granted Vicky’s request to waive the 72-hour statutory deadline for deciding her mandamus petition. See 18 U.S.C. § 3771(d)(3).
. On remand, the district court denied as untimely Vicky's motion to intervene. She does not appeal that ruling.
. Vicky also cites a letter from Senator Jon Kyi to the U.S. Justice Department, stating that the CVRA was "not intended to block crime victims from taking an ordinary appeal from an adverse decision affecting their rights (such as a decision denying restitution) under 28 U.S.C. § 1291.” Letter from Senator Jon Kyi to Attorney Gen. Eric Holder (June 6, 2011), reprinted in 157 Cong. Rec. S3609 (June 8, 2011). Statements made after a statute’s enactment are "not a legitimate tool of statutory interpretation. ” Bruesewitz v. Wyeth LLC, - U.S. -,
. See also S.Rep. No. 103-138, at 56 (1993) (noting that “section [2259] requires sex offenders to pay costs incurred by victims as a proximate result of a sex crime” (emphasis added)).
. Vicky argues that the district court should have held Fast jointly and severally liable for the full amount of her losses. Then, she asserts, he could seek contribution from other defendants liable to her. Section 3664 states, "If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Because "there is only one defendant in this case,” section 3664(h) does not apply. E.g., Laraneta,
Concurrence Opinion
concurring in part and dissenting in part.
I concur with respect to sections I, II, and III of the majority’s opinion. I dissent with respect to sections IV and V, and with respect to the judgment, because I would follow the Fifth Circuit’s approach and hold that only damages awarded under 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate cause requirement. See In re Amy Unknown,
I.
As the majority correctly explains, Vicky is entitled to mandamus relief if she can
A.
Section 2259 requires courts to order “the defendant to pay the victim ... the full amount of the victim’s losses.... ” 18 U.S.C. § 2259(b)(1). The statute defines “victim” as “the individual harmed as a result of a commission of a crime under this chapter....” 18 U.S.C. § 2259(c). The statute also provides:
For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim for—
(A) medical services relating to physical, psychiatric, or psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F)any other losses suffered by the victim as a proximate result of the offense.
18 U.S.C. § 2259(b)(3).
In In re Amy Unknown, the Fifth Circuit concluded that the plain language of section 2259 imposes a proximate cause requirement only on losses awarded under subsection (b)(3)(F).
Thus, under the Fifth Circuit’s approach, as long as losses in subsections (A)(E) are incurred “as a result of a commission of a crime under this chapter,” § 2259(c), a district court must award victims “the full amount” of their losses under section 2259(b)(1), regardless of whether the defendant proximately caused
This, of course, does not mean that the statute imposes no causal requirement at all. As explained above, section 2259 defines “victim” as “the individual harmed as a result of a commission of a crime under this chapter,” § 2259(c), and then requires courts to order restitution for “the full amount of the victim’s losses,” § 2259(b)(1). Thus, before a court can order restitution, it must determine that (1) the defendant committed a qualifying offense and (2) the person seeking restitution suffered harm as a result of that offense. See § 2259. 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 subsections (A)-(E), a defendant must pay restitution for the full amount of those harms, regardless of whether the defendant proximately caused them. Congress likely chose not to impose a proximate cause requirement for these types of losses because proving proximate causation would be virtually impossible in many situations, thus leaving child victims without redress.
The concept of causation in cases under section 2259 admittedly is complicated. A defendant’s action is a “cause” of a victim’s injury if that action somehow contributed to the injury. See Black’s Law Dictionary 250 (9th ed. 2009) (defining “cause”). This general definition of cause is expansive. For example, a victim whose images have been made widely available through posting on the internet may incur significant counseling expenses to address psychological problems stemming from the knowledge that numerous
In contrast, “proximate cause” involves more of a policy judgment about whether a particular defendant’s action bears a sufficient causal relationship to an injury such that the law should hold the defendant liable for the injury. See Black’s Law Dictionary 250 (9th ed. 2009) (defining “proximate cause” and noting that “[s]ome boundary must be set to liability for the consequences of any act, upon the basis of some social idea of justice or policy” (internal quotation marks omitted)). On one end of the spectrum is the example above, where the victim’s psychological problems are “caused” by innumerable unknown defendants. In this situation, the causal link between a specific defendant’s conduct and the victim’s losses is more tenuous because it would be virtually impossible to show that the victim’s psychological trauma and attendant counseling expenses would have been any less had that individual defendant not viewed the images. In other words, it is unclear whether the victim could prove that an individual defendant
On the other end of the spectrum are losses such as attorney’s fees incurred in pursuing a restitution action against that defendant. Those losses bear a much closer causal relationship to the individual defendant’s conduct, and thus it would be much more likely that a victim could prove the defendant “proximately caused” those losses. See Gamble, Nos. 11-5394/5544,
Addressing causation, however, is only the first step that a court must take when crafting a restitution award. Concluding that a defendant caused a victim loss, either as a general “cause” with respect to losses in subsections (A)-(E) or as a “proximate cause” with respect to miscellaneous other losses in subsection (F), merely establishes that a court must enter a restitution order. The next step is for the court to determine the amount of the restitution order.
Section 2259(b)(1) clearly states that the restitution order must be for “the full amount of the victim’s losses.” Read in tandem -with subsection 2259(c), which defines “victim” as “the individual harmed as a result of a commission of a crime under this chapter,” the statute’s reference to “the full amount of the victim’s losses” is best understood as all losses the victim suffered as a result of the defendant’s crime under Title 18, Part I, Chapter 110: Sexual Exploitation and Other Abuse of Children. Applying normal common-law principles, where the losses stem from an indivisible injury, the defendant must be held jointly and severally liable for that injury. See Burgess,
In cases where a restitution order reflects joint and several liability, traditional joint and several liability principles would allow a defendant to bring contribution actions against other individuals who contributed to the victim’s losses. See In re Amy Unknown,
But regardless of how defendants can obtain information about other restitution awards, the fact that Congress drafted the statute to require defendants to reimburse victims for “the full amount” of their losses reflects the policy judgment that child victims should be fully compensated for their losses in the most efficient manner possible; defendants, rather than child victims, should bear the responsibility of filing additional lawsuits against other responsible parties in order to apportion responsibility among them. Cf. In re Amy Unknown,
Here, the district court calculated its restitution award based on two erroneous premises: (1) that restitution can be awarded only for losses that the defendant proximately caused and (2) that restitution awards cannot reflect joint and several liability. United States v. Fast,
B.
The third and final element that Vicky must show to entitle her to mandamus
II.
Because Vicky has satisfied all three mandamus elements, I would grant her petition for mandamus. Consequently, I would remand for the district court to recalculate Vicky’s losses under section 2259(b)(3) and to enter a restitution order reflecting “the full amount” of her losses as required by section 2259(b)(1).
. According to the Sixth Circuit, approximately 300 defendants already have been convicted of possessing Vicky's images. United States v. Gamble, Nos. 11-5394/5544,
. The majority concludes that section 3664(h) permits courts to impose joint and several liability only when there are multiple defendants in a single case. See supra at 723 n. 6. Section 3664(h) provides, “If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim's loss and economic circumstances of each defendant.” I agree with the Fifth Circuit that "nothing in § 3664 forbids” imposition of joint and several liability on defendants in separate cases. See In re Amy Unknown,