For the better part of four years, the 5th U.S. Circuit Court of Appeals has been dealing with In Re Amy Unknown, an appeal involving a child pornography victim who sought restitution from a criminal defendant convicted of possessing illegal images of her.
A key issue with which the appellate court struggled was 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. The 5th Circuit issued conflicting decisions on that issue on mandamus and on direct appeal. By 2010 In Re Amy was the most thoroughly litigated case on this issue in the country.
On Oct. 1, the en banc court ruled that §2259 does not require the government to show proximate cause to trigger a defendant’s restitution obligations.
“Congress resisted using the phrase ‘proximate cause’ anywhere in §2259 . . . and further required the court to order the ‘full amount of the victim’s losses.’ The selective inclusion and omission of causal requirements in §2259’s subsections, together with the language pointing away from ordinary causation, suggest that Congress intended to depart from, rather than incorporate, a tradition of generalized proximate cause,” Judge Emilio Garza wrote in the majority opinion.
In making that call, the 5th Circuit is now in conflict with seven other circuit courts of appeals that have considered the same issue and have decided that proximate cause is required for a child pornography victim to receive restitution, says Stan Schneider, who represents Doyle Randall Paroline in the case. Paroline pleaded guilty possessing child pornography, including two photos of Amy. Amy sought $3.4 million in damages from Paroline, a request a U.S. District Court for the Eastern District of Texas rejected because the government had failed to show a causal link between her damages and Doyle’s possession of the images, the majority opinion states.
“The 5th Circuit stands alone across the country. Every circuit that has looked at this issue has said that there’s a causation requirement. We have the 1st, 2nd, 4th, 6th, 9th, 11th, D.C. Circuits — they have all addressed this issue, and they have all said there is a causation requirement,” says Schneider, of Houston’s Schneider & McKinney.
Schneider plans to appeal the decision to the U.S. Supreme Court. Of his client Paroline, Schneider says, “He’s equally liable as the person that caused the image or the person who sells the image. And that doesn’t seem like the intent of Congress was to hold that person [who viewed the images] responsible.”
“It’s the best opinion in the country, let’s put it that way,” says Paul Cassell, a University of Utah School of Law professor who represents Amy on appeal. “The example we’ve used is: If there are 10 polluters all releasing noxious chemicals into the air, they can sort out amongst themselves who is responsible, but the victim always gets 100 percent recovery in those cases,” Cassell says. “Congress decided that victims should be able to recover the full amount of their losses in any of these cases. And that’s all the 5th Circuit has done here — enforce the will of Congress.”
Michael A. Rotker, a U.S. Department of Justice attorney who represents the government in the case on appeal, declines comment.
-- John Council