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October 1, 2012

En banc Fifth Circuit clarifies its standard for restitution in child porn downloading cases

The Fifth Circuit has a huge and potentially hugely consequential en banc ruling today in In re Amy Unknown, No. 09–41238 (Oct. 1, 2012) (available here), concerning the standards for restitution awards in child pornography downloading cases. Here is how the lengthy opinion for the majority begins and ends:

The issue presented to the en banc court is whether 18 U.S.C. § 2259 requires a district court to find that a defendant’s criminal acts proximately caused a crime victim’s losses before the district court may order restitution, even though that statute only contains a “proximate result” requirement in § 2259(b)(3)(F). All our sister circuits that have addressed this question have expanded the meaning of § 2259(b)(3)(F) to apply to all losses under § 2259(b)(3), thereby restricting the district court’s award of restitution to a victim’s losses that were proximately caused by a defendant’s criminal acts. A panel of this court rejected that reading, and instead focused on § 2259’s plain language to hold that § 2259 does not limit a victim’s total recoverable losses to those proximately resulting from a defendant’s conduct. A subsequent panel applied that holding to another appeal, yet simultaneously questioned it in a special concurrence that mirrored the reasoning of our sister circuits. To address the discrepancy between the holdings of this and other circuits, and to respond to the concerns of our court’s special concurrence, we granted rehearing en banc and vacated the panel opinions.

This en banc court holds that § 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant’s restitution obligations for the categories of losses in § 2259(b)(3)(A)–(E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. We VACATE the district courts’ judgments in both of the cases below and REMAND for further proceedings consistent with this opinion....

For the reasons above, we reject the approach of our sister circuits and hold that § 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse. We VACATE the district courts’ judgments below and REMAND for proceedings consistent with this opinion

The bold in the last paragraph above was added by me, in part to highlight why this issue seems now destined for a cert grant in some case before too long.

October 1, 2012 at 03:56 PM | Permalink

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Comments

I believe the Seventh Circuit heard oral argument on this issue today.

Posted by: Bryan | Oct 1, 2012 4:58:50 PM

I smell a SCOTUS case on the horizon.

Posted by: Guy | Oct 1, 2012 5:22:09 PM

Section 2259 requires a court to order a defendant to pay a victim "the full amount of the victim’s losses". Here is the relevant text the Fifth Circuit is interpreting:

(3) Definition.— 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.

The Fifth Circuit is saying that the words "as a proximate result of the offense" apply only to "any other losses." I would like to see someone conduct a survey of random people, show them this language, and see if they would read this statute the same way the Fifth Circuit has. No one would.

How on earth is a court supposed to calculate losses, if not those caused by the defendant? Is every CP defendant forever liable for all of a child abuse victim's medical expenses for the rest of her life, even if she develops some genetic disease? Do defendants have to pay the victim psychological damages for being raped in the first place? And if the amount of damages are not limited to those caused by the defendant's conduct, then if one court determines that the full amount of loss is, say, $10,000, can every defendant rely upon res judicata and argue that he cannot be ordered to pay any higher amount, even if some other judge thinks the amount should be $5,000,000?

This looks to me like just another excuse to continue punishing downloaders of child pornography forever, beyond the term of their imprisonment.

Posted by: C.E. | Oct 1, 2012 9:54:10 PM

I should clarify, for those that are not familiar with these cases, that the vast majority of child pornography defendants have absolutely nothing to do with the creation of the images they download. Many of the images are decades old and have been circulating around the Internet since it became available to the general public. They do not pay for the images and they do not receive them from someone who was responsible for their creation. Most CP defendants do not even recirculate the images--they are "takers", not "makers" (no slight to libertarians intended). These are the people who are the most likely subjects of the Fifth Circuit's ruling.

Posted by: C.E. | Oct 1, 2012 10:14:49 PM

Thanks for clarifying, C.E.

I formerly thought that Child Pornography defendants only consumed what they produced, kind of like how American gun and drug felons all construct their own firearms and ammo, grow their own coca and opiates, solely for personal use.

Actually, thanks for nothing.

Posted by: Adamakis | Oct 2, 2012 1:31:29 PM

Why shouldn't those who look at other crime-scene photographs, which frequently appear in newspapers, have to pay restitution to the victims they have violated?

Posted by: AnonymousOne | Oct 2, 2012 2:13:58 PM

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