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April 21, 2011

Fifth Circuit panel questions another panel's recent ruling on child porn restitution sentencing

Just a day after the DC Circuit issued a very important child porn restitution opinion with In re: Amy, the Victim in the Misty Child Pornography Series, No. 11-3008 (DC Cir. April 19, 2011) (discussed here and here), the Fifth Circuit returned to the topic through a notable ruling in US v. Wright,  No. 09-31215 (5th Cir. April 20, 2011)(available here).  Excerpts below from the last two paragraphs of the per curiam opinion and the first and last paragraph of a special concurring opinion joined by all the judges on the Wright panel highlight why this latest ruling is notable.

From the per curiam:

In sum, although we agree with the government that the district court has wide discretion in fashioning restitution orders, this discretion is not unlimited and must be reviewed for abuse. Moreover, if there is “[a]ny dispute as to the proper amount or type of restitution” the court is obligated to resolve that dispute “by the preponderance of the evidence.” 18 U.S.C. § 3664(e).  We conclude, therefore, that the district court’s failure to give a reasoned analysis of how it arrived at its award in a manner that allows for effective appellate review requires that we vacate the order and remand for reconsideration.

On remand, the district court has two basic options under §§ 2259 and 3364, as well as the In re Amy decision.  The district court may attempt to craft a joint and several restitution order that conforms to the generally recognized requirements of joint and several liability, as held by In re Amy.  Alternatively, the district court may attempt to determine the “fraction” of Amy’s losses “attributable” to Wright, consistent with the In re Amy decision....

From the special concurrence authored by Judge Davis:

I write separately to express my disagreement with the recent holding by the In re Amy panel that § 2259 does not limit the victim’s recoverable losses to those proximately caused by the defendant’s offense and to urge the court to grant en banc review of that decision....

For all of the foregoing reasons, this court should follow every other circuit court and virtually every district court considering this issue in holding that § 2259 limits recoverable losses to those proximately caused by the defendant’s offense of conviction.  Thus, I recommend that this case be consolidated with In re Amy and reheard en banc.

April 21, 2011 at 09:01 AM | Permalink

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Ummm, we just had another case a few days ago where a panel ruled that the restitution need not be tied to whatever counts garnered convictions. And that was completely outside the child porn context, instead being a fraud case. The normal rules of proximate cause still apply but not the particular rule proposed by Judge Davis. In the child porn context this seems like it would be especially limiting as plea agreements often reduce to just one charge of receiving or possession, yet many many times that number could be proven. How is a prosecutor to arbitrate which victim the offender pleads to and thus pick amongst completing claimants?

To be honest I'm really not sure about such restitution awards. It seems like a massive breach of the jury's fact finding role. Yet it would not surprise me if on the whole offenders come out ahead (meaning they get ordered to pay less) when the award is part of a broader sentencing.

Posted by: Soronel Haetir | Apr 21, 2011 9:29:53 AM

The child porn restitution law has to be one of the sloppiest pieces of legislation ever enacted — and that’s saying something.

For one thing, it spreads the responsibility for assessing Amy’s “damages” across district courts all over the country, which may reach widely divergent conclusions as to the injury she suffered, who is responsible for it, and in what proportions. If the theory of liability is “joint and several,” there is no central administration of the collection process.

Worst of all, the only way Amy knows about these cases is if the government tells her. Since the theory of liability here is that each “viewing” adds to her injury, the government itself is a party to her ongoing trauma, as she would (it seems) be far better off NOT knowing that these prosecutions ever happened. Since images on the Internet are immortal, Amy could be a participant in these cases for decades to come, with each prosecution re-opening the wounds of her original abuse.

Posted by: Marc Shepherd | Apr 21, 2011 12:24:53 PM

Mark,

This is being done under a general restitution statute, the Mandatory Victim's Restitution Act of 1996, as modified by the Criminal Restitution Improvement Act of 2007, not a child porn specific one.

Posted by: Soronel Haetir | Apr 21, 2011 1:10:20 PM

Yes, but my comment was about its sloppiness, not its specificity to child porn prosecutions.

Posted by: Marc Shepherd | Apr 21, 2011 1:30:33 PM

I agree they would not know that ones have viewed such material if they was not told about it .I was molested as a child should I demand payment from every man that looks at me because they might know .
I feel bad for what happend to these victims I can understand how it makes you feel dirty digusting,low self esteem, trust was takeing away .
But move on stop playing the victim o poor me assuming everyone that has viewed such images are up to know good .
But the media tells us its out there over and over eventually one has to see what they are talking about . The Paris hilton video , the be heading of an american, etc some of this I wouldnt have even known about .
But its easier to put everyone in the same pot .

Posted by: frank | Apr 21, 2011 1:49:54 PM

Frank,

The lawyers pushing this are interested in victim's rights much more than they are interested in Amy herself. She just happens to be a great vehicle for what they are hoping to achieve.

Posted by: Soronel Haetir | Apr 21, 2011 1:54:34 PM

I can understand the victims rights do they do this with all crimes ?
But Amy wouldnt know if she wasnt told so the feds keep her living in the past they keep bringing up the pain . I do not support such material but again to assume everyone that is convicted of this is evil is unfair. I have read several articals where ones was using p2p software limewire and things arent always what they say they are.
And why is our Pentagon Official can Pay!!!! for it and it seems they did more to support this behavior than the ones that got it free and it seems like like nothing is gonna happen to them and high profile people who have in trouble for this before get 30days in county jail . I still can not understand how looking at pics are more harmful
than the actual abuse . You recieve a much harder sentence for having pics than if you went out and ,Killed,Raped, etc another human .
They will say it will stay at state level if the crime is committed against a child and they want to say they are doing this to protect are kids than all crimes agianst children should be done at a federal level.
I am getting tired of reading and hearing the torture that some do their kids and nothing
really seems to happen to those that inflicted harm.

Posted by: frank | Apr 21, 2011 2:21:23 PM

Soronel,

There are actually 3 overlapping statutes at work, two general, one specific. The statute making restitution mandatory for child porn (18 USC 2259) is specific to Chapter 110, Sexual Exploitation of Children. (This covers all sex crimes against minors, not just c.p.) This statute, which sets out 6 categories of covered losses, applies in mandatory fashion notwithstanding the more general Mandatory Victims Restitution Act (18 USC 3663A) and its discretionary predecessor, the Victim and Witness Protection Act (18 USC 3663). The two more general statutes at work are 18 USC 3664, which sets out the procedures for factfinding and entering restitution orders, and 18 USC 3771, the Crime Victims Rights Act, which gives victims certain procedural rights including the right to seek appellate review via a writ of mandamus. The DC Circuit's opinion the other day walks through the interplay of these statutes in some detail.

Apart from the substance of the questions presented in these appeals, which is quite complex, today's 5th Cir. panel deserves credit for calling for en banc review to try to bring some uniformity to the law (or at least to tee it up for Supreme Court review).

Posted by: Def. Atty. | Apr 21, 2011 4:50:40 PM

Amy's CP series is so widespread that it is silly to say that Amy wouldn't know about it unless the government told her.

Posted by: domino | Apr 21, 2011 8:56:11 PM

Domino-

The point is that the government notification does as much harm, and arguably more, than the vague knowledge that some anonymous person out in the world is viewing her images. In the McDaniel case, the government's own witness explained that each NCMEC notification adds to the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues. He testified that each notification is “extraordinarily distressing and emotionally painful” to Vicky.

The govt really needs to shut down the most egregious peer to peer sites, but then they wouldn't have such an easy trap to pick off viewer/downloaders and make it look like they are actually doing something about exploitation. As long as they can offer some junk science that people who view such images are likely to molest and then use their boundless discretion to charge receipt rather than posession to get 5+ years, they can make someone unrelated to the crime feel better that the good guys are doing something, regardless of how effective or just it is. Then they can say, "We put this pervert away longer than the states put away actual rapists. You are safe now." Except from the actual molestors, distributors and rapists. . .

-AFP

Posted by: AFP | Apr 21, 2011 10:05:37 PM

Domino,
I agree .

Posted by: frank | Apr 21, 2011 11:16:50 PM

Friends:

This is not a legal interpretatation of all the current laws, but does not this confusion stem from our idiots in Congress grandstanding for votes for which they or their well paid aids offer counsel only for political purposes and then let the chips fall where they may?

AFP:

Your post is legal and fruitless. Try an OUIJA Board?

The real question is "why are Americans so stupid?"

CONGRESS and the DOJ have become puppets to their own stupidity.

The DOJ "SMART" office is as much of an oxymoron that has ever been created and is really the "D-MB-Ass" Office.

Posted by: albeed | Apr 21, 2011 11:52:43 PM

CP victims decide whether they want NCMEC to notify them when offenders are caught with their CP images. If the victim doesn't want to be notified, then NCMEC won't notify them. Apparently, Amy/Vicky has decided that she wants to know. NCMEC is only the messenger. The trauma that the victims feel come from the message that CP offenders (who likely get sexual gratification out of child rape) are viewing their images, not that the criminal investigators are relaying that fact to her.

Posted by: domino | Apr 22, 2011 9:54:36 AM

domino: "(who likely get sexual gratification out of child rape)"

Do they? What does "likely" mean? And if that is the basis for the harm, should the government have to prove the defendant did in fact "get sexual gratification out of child rape." Otherwise, the harm is rooted in the victim's imagination and not in reality.

When people visit rotten.com do they get murderous satisfaction when viewing murder victim crime pictures? Do they get warrior satisfaction when they view war mutilations? Or is it lookiloo satisfaction like slowing down to view an accident? Indeed, perhaps the image of a child porn down loader panting over every image is rooted in the condemner's mind rather than in reality. Of course maybe some, most or all do pant, who knows? But "likely" should not cut it when we talk specific cases. It leads to a statistical interpretation of the Constitution, a cloud interpretation, when our founders were more down to earth.

I'm all for the victim becoming hole again but there is the risk of ambulance chasing in these cases.

Posted by: George | Apr 22, 2011 4:48:19 PM

I'm all for the victim becoming whole again...

Posted by: George | Apr 22, 2011 4:49:36 PM

I have same thought behind that just because you have viewed something does not mean a thing look at the movies being made the tv programs the video games .
But the way the want to treat ones of this crime is absured it should be done a case by case . O that is right when it comes to this crime we throw everyone into the same pot.
Watch I watched several movies the promoted violence,I have seen the beheading .
So you say the victim wants to be notified then they want to keep living in the past and playing the poor damn victim , as I said before I know the feeling I too was a victim of rape. But I choose to move on .

Posted by: frank | Apr 24, 2011 7:52:50 PM

better watct out frank. for god's sake don't admit to watching a few of brooke shields's first movies or a couple of other stars from that era. They were naked and underage....Your a pervet sex offender for life if you do!

trust me SOMEONE would squeel!

Posted by: rodsmith | Apr 25, 2011 1:58:17 AM

"The lawyers pushing this are interested in victim's rights much more than they are interested in Amy herself. She just happens to be a great vehicle for what they are hoping to achieve."

Interesting. Perhaps this is part of the problem.

Posted by: anonymous | Apr 25, 2011 10:39:29 AM

protitution must have to get to the strict level as the world getting larger in rate about protitution.

Posted by: marietta dui attorney | May 9, 2011 3:12:55 AM

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