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April 19, 2011

DC Circuit weighs in on host of challenging child porn restitution issues

The DC Circuit today issued one of the longest and most thorough circuit opinions to date on the standards for considering and reviewing victim restitution awards that are part of the determination of sentences for child porn offenders. The ruling in In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (available here), gets started this way:

In December 2009, respondent Michael Monzel pled guilty to possession of child pornography. One of the images he possessed depicted the petitioner, who proceeds in this matter under the pseudonym “Amy.”  Amy subsequently sought $3,263,758 in restitution from Monzel.  The district court, however, awarded what it called “nominal” restitution of $5000, an amount it acknowledged was less than the harm Monzel caused her.  Amy challenges the award in a petition for mandamus and by direct appeal.  We grant her petition in part because the district court admitted the restitution award was smaller than the amount of harm she suffered as a result of Monzel’s offense, and we dismiss her direct appeal because it is not authorized by statute.

April 19, 2011 at 03:40 PM | Permalink

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Issues raised/decided by this case:
1) Victim may not unilaterally waive the 72-hour rule for appellate courts to decide these cases.
2) Non-compliance with the 72-hour rule does not deprive the court of jurisdiction.
3) Victim must satisfy the normal standard for mandamus in CVRA cases (making it a 4-4 Circuit split).
4) Amy's petition satisfied the 3 requirements of mandamus review, including mandamus being her only avenue of relief (i.e. direct appeal is not available to her, which may involve a circuit split).
5) However, Amy is only entitled to restitution for damages that the defendant proximately caused (making the Fifth Circuit the lone Circuit to have held otherwise in an, at least, 4-1 split).
6) The Circuit rested its "proximate cause holding" on grounds not relied on by any other Circuits.
7) Because of the proximate cause requirement, Amy is not clearly and indisputably entitled to the full $3,263,758 she seeks.
8) The court implied that joint and several liability is not applicable in possession of child pornography cases, but did not need to reach the issue due to its holding on proximate causation.
9) "On remand, the district court should consider anew the amount of Amy’s losses attributable to Monzel’s offense and order restitution equal to that amount." In essence, the government gets a second bit at the apple to present evidence.

Posted by: DEJ | Apr 19, 2011 6:24:33 PM

Two thoughts after reading this case:

1) Why does the government get a second bite at the apple to prove restitution? In the district court, "the government failed to submit 'any evidence whatsoever' regarding the amount of Amy’s losses attributable to Monze," yet the panel allows, on remand, for the issue to be considered "anew." As explained by the panel: "We expect the government will do more this time around to aid the district court."

It seems to me that, yes, the district court did clearly and indisputably err. But it did so by ordering any restitution at all in face of the government's lack of proof. The government shouldn't be given a second time around.

Given the government’s lack of production and the record’s deficiency, the case should have been remanded for a restitution order of $0.00, which is exactly the amount of damages that the government showed the defendant proximately caused.

2) The Fifth Circuit's holding one month ago that proximate cause was not required under the CVRA was issued under a mandamus standard of review. How could that standard have possibly been met if it were principally applied in that case? Something is hardly "clear and indisputable" -- as the Fifth Circuit had to so find -- when every other panel to have considered the issue disagrees. My point here: the 5th Circuit claimed to apply the mandamus standard, but their holding was quite far from clear and indisputable.

Posted by: DEJ | Apr 19, 2011 6:52:04 PM

i agree with you DEJ the govt doesnt' get to do what the defence can't. If some poor slob defending himself forgot to bring up something...those little two faced twirps would jump at the chance to say...."you didn't raise it at trial" to tough shit!

case dismissed in the prosecutions favor!

but this just highlights what some of us have been saying for a while. The so-called justice system has been impossibly and unreasonably slanted TOWARD the state for years! and only seems to be getting worse!

Posted by: rodsmith | Apr 19, 2011 9:27:51 PM

What he said!!!

Posted by: Scott Forster | Apr 19, 2011 9:44:35 PM

I would say that the point about the government not getting a second bite would be well taken except that the right to restitution belongs to Amy and she did put forward plenty of evidence that she has been harmed, and even enough evidence that this particular offender harmed her to warrant some amount of restitution. The right does not belong to the government, though the responsibility does.

I do think the list DEJ put forward would be about the most sane outcome for this entire issue, not just for this case but for the entire CP viewing harm restitution matter.

I can however see the district court reinstating the $5k under the theory that while it understates the actual damage calculating that figure would be too burdensome for a sentencing hearing (which as I understand it is one of the outs contained in the MVRA). Amy can always try for a civil trial, not that I really expect that, as the lawyers heloing her are mostly pushing for broad MVRA interpretations. Her case is about perfect for them because CP and its offenders are seen as filthy and undeserving of normal legal protections (witness the recent 5th circuit ruling).

Hopefully with the federal circuits so split SCOTUS will soon take one of these cases.

Posted by: Soronel Haetir | Apr 19, 2011 11:55:38 PM

sorry soronel any rights she has or had would have been covered in a civil court...not criminial. If it was required to be done in a crimnal court then the DA has failed in their job and THEY are the ones who need to make her whole...not be allowed to violate the law and get a 2nd shot at doing their job right.

Posted by: rodsmith | Apr 20, 2011 1:09:10 AM

One notes Paul Cassell represents the appellant. He is the advocate for victim impact statements. I believe he is really a Trojan Horse for lawyer rent seeking.

I am sorry, I have to use the word feminism. In a sexual harassment lawsuit, the employer is named. The harasser? Left off.

Here, the CP viewer is named. The producer or the permissive family? Left off. That subject does not come up at all in the opinion. How is that possible? This line of litigation is not about compensation, restitution, or victim rights. It is about rent seeking.

Posted by: Supremacy Claus | Apr 20, 2011 4:08:25 AM

I would tend to agree with SC on this one. The entire victim rights movement is about getting a fourth lawyer job in the courtroom. We already have the judge, prosecutor (or plaintiff in a civil matter), and the defense. Now they want to add an independent duty to victims, backed up with threat of yet more legal process.

Rod,

Except that the MVRA gives her the (and as the act's name states - mandatory) right to such restitution without a civil trial. By the terms of the act it is usually the judge who fails the victim, not the prosecutor. But we all know that the judge's aren't going to let go of their self dealt immunity without a few of them getting shot first.

Posted by: Soronel Haetir | Apr 20, 2011 9:46:21 AM

maybe so soronel but just like a defense attorney who forget's to bring up something during the trial and is then told by the appellate courts to kiss off since YOU DIDN'T BRING IT UP AT TRIAL!

the same rule needs to apply to the other side! If and i say IF they were required to bring it up at trial.. Where's the notice of thier punishment and the sanctioins applied to assure it didnt' happen again.

Sorry in my book if your REQUIRED to do something in your job and you FAIL to do it. You get punished either with some kind of letter of repramand or a suspension or in a case where you continue to FAIL TO DO YOUR JOB! your CANNED!

since i see nothing in the record where the prosecution was punished or sanctioned for any FAILURE TO DO THEIR JOB!

I have to go by the evidence in front of me and assume from the record IT WASN'T THEIR JOB!

Posted by: rodsmith | Apr 20, 2011 11:53:55 AM

Rod,

By the statue it's their job, by any sane measure of duty it's not. And prosecutors are, rightly, trying hard to make sure that it does not in fact become their job. So far with mixed results.

Posted by: Soronel Haetir | Apr 20, 2011 1:00:15 PM

Can someone explain to me why the victim, Amy, and the government are on opposite sides in this appeal?

Posted by: perplexed | Apr 20, 2011 4:17:43 PM

well soronel by STATUE the u.s and state prosecutors offices are locking people up for the lives for violating same! so sorry now the shoe is on the otehr foot and they can hang like everyone else. If it was by STATUE their job and they failed. time to can their asses.

Posted by: rodsmith | Apr 20, 2011 8:32:22 PM

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