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March 11, 2013

Split Eighth Circuit panel weighs in on child porn restitutution issues

A few weeks ago, as reported in this post, the Sixth Circuit in US v. Gamble ended any betting on how that court was going to sort through the circuit-splitting issues concerning awards of restitution in child porn downloading cases.  Today, the majority of an Eighth Circuit panel in US v. Fast, No. 12-2752 (8th Cir. Mar. 11, 2103) (available here), was quick to adopt the majority approach to these issues (hat tip to How Appealing), via an opinion that gets started this way:

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 ordered him to pay $3,333 restitution to Vicky — the pseudonym for the child-pornography victim whose images were on Fast’s computer — under 18 U.S.C. § 2259. Vicky challenges the restitution award by direct appeal and in a petition for mandamus.  She argues that Fast need not proximately cause the losses defined in subsections 2259(b)(3)(A) through (E) to be liable for them, and that the district court misinterpreted the “full amount of [her] losses” under section 2259(b)(1).  Because she lacks standing as a nonparty to bring a direct appeal, this court grants the motions to dismiss by Fast and the government.  Having jurisdiction over her mandamus petition under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), this court denies her petition.  

Judge Shepherd authors an extended dissent, which gets started this way:

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, 701 F.3d 749, 752 (5th Cir. 2012) (en banc).  Consequently, I would grant Vicky’s petition for mandamus relief and remand for the district court to recalculate her losses.

As I have noted before (and likely will have an opportunity to mention again in the future), it seems only a matter of time before the Supreme Court will feel it has to take up these issues in some manner.

A few more recent and some older related federal child porn restitution posts:

March 11, 2013 at 05:13 PM | Permalink

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