The CP Restitution Debate Continues

In re Amy Unknown, Nos. 09—41238, 09—41254, 09—31215 (5^th Cir. Nov. 19, 2012).

OK, sorry I missed my blogging week and have taken so long to make it up.  During my blogging week, the Fifth Circuit decided, en banc, the issue of restitution in CP cases.  I think it’s worth discussing.
 

Quick recap:

·         18 USC 2259 governs restitution in child-pornography cases. 

·         There was a circuit split over proximate cause.  Most circuits, including the Sixth, require proximate cause for a victim to receive restitution.  Couple theories on why that is so, but what matters is that they require it.  A panel of the Fifth Circuit, however, read 2259 to require proximate cause only for miscellaneous “other” losses, as detailed in 2259(b)(3)(F).  The ct took the issue up for rehearing en banc, and has now confirmed that proximate cause is only required for such “other” losses. 

·         Maybe this issue will make it to SCOTUS. 

 

Why do we care in the Sixth Circuit?

·         It’s generally an interesting issue.

·         The Fifth Circuit’s Amy Unknown decision provides some interesting background on statutory interpretation, proximate cause, joint and several liability, and the Eighth Amendment.  Interesting read.

·         The opinion also provides interesting background on mandamus and victim rights. 

Issue:

Whether 2259 requires district courts “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).” 

Ct acknowledges that “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.” 

Basic holding:

Section “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).”

The district court awarded Amy nothing.  This failure to make an award was “clear[] and indisputabl[e]” error.  “No matter what discretion the district court possessed and no matter how confounding the district court found § 2259, it was not free to leave Amy with nothing.”

On remand, the district court must enter a restitution order that reflects the full amount of Amy’s losses.

 

Interesting points:

·       Government reported that restitution for Amy has been awarded in at least 174 CP cases.  Amounts range from $100 to $3,543,471.

·         Crime Victims’ Rights Act gives victims a right to mandamus relief, but not to appeal.  And this mandamus review is the traditional review; it does not involve the standard of review of a traditional appeal. 

·         Lots of statutory–interpretation discussion. 

·         The structure of 2259(b)(3) indicates that each category of loss is separate.

·         No 8^th Amendment issue b/c restitution is not punishment.  In the Sixth Cir., restitution is punishment!  United States v. Sosebee, 419 F.3d 451, 461(6^th Cir. 2005).     

·         When 2259 applies, there’s a two-step inquiry: 1) is the person seeking restitution a “victim”; and 2) what is the full amount of the victim’s losses.  Courts should focus on section 3664 to craft a restitution order; they should focus on the joint-and-several-liability mechanisms. 

·         There is a lot in the 58 pages of the opinions.  If you are a restitution and/or statutory-interpretation person, you should take a gander at it. 

 

Judge Dennis concurred.

He “would simply direct the district courts to proceed to issue and enforce the restitution orders in accordance with 18 U.S.C. § 3664 and 3663A, as required by § 2259(b)(2).”  He believes it best to permit district courts to craft procedural and substantive means for ordering restitution that take into account the “mandatory nature of full restitution” for victims under 2259 and the “mechanical difficulties of crafting orders given the possibility of multiplicitous liability among hundreds of defendants under circumstances that may change over time.”

He would leave the decision as to how to proceed under these statutes to the district courts.

Judges Davis, King, Smith, and Graves concurred in part and dissented in part.

They concluded that the proximate-cause proof required by the restitution statutes could be satisfied in the cases at issue, but they disagreed with the majority that the statute authorized restitution without any proof that the violation proximately caused the victim’s losses.

They agreed with the majority that the district court must enter a restitution award against every offender convicted of possession of the victim’s pornographic image, but disagreed on the issue of apportioning the liability.  In cases such as the ones at issue, where the offenses of multiple violators contributed to the victim’s damages, the district court need not enter an award against each offender for the full amount of the victim’s losses.

These judges noted that no other circuit had adopted “a one size fits all rule for the restitution feature of the sentence of an offender.”  They cited United States v. Evers, 669 F.3d 645, 658-59 (6th Cir. 2012), our Sixth Circuit decision. 

They “would grant mandamus and vacate the judgment in In re Amy and remand that case to the district court to enter an award consistent with the principles outlined above.”  And they give factors to consider when crafting a restitution award.

Judge Southwick dissented.

He agreed with the majority, relying on the last-antecedent rule, that the phrase "as a proximate result of the offense" in 2259(b)(3)(F) only modifies the category of loss described in subsection (F).

But he found persuasive the reasoning of the Second, Fourth, and D.C. Circuits on causation: it "is a deeply rooted principle in both tort and criminal law that Congress did not abrogate when it drafted § 2259."Top of Form

He would find that proximate cause must be shown and the principle of aggregate causation is the method for proving its existence.  District courts could award all damages to each defendant, but could also make lesser awards if properly explained.  He agreed that additional proceedings would be required in the cases at issue, but disagreed that each district court should be required to impose a restitution award of the full amount of the alleged damages.

CP Case and Trial Issues: Rape Shield, Double Jeopardy, and More

United States v. Ogden, Nos. 09-6507/10-5276 (6th Cir. July 17, 2012) (to be published).

Panel of Judges Griffin, Kethledge, and Thapar (E.D. Ky.).

Case arose out of an on-line relationship between a 34-year-old man and a 15-year-old girl.  Persuading a minor to engage in sexually explicit conduct to produce child pornography (CP). 

Defendant went to trial.  On appeal, he argued that he should have been allowed to present evidence of on-line conversations b/t the victim and other men.  He said this evidence was critical b/c it showed other men induced the victim to create the CP.  The COA rejected the arguments and affirmed.

Issue I: Double Jeopardy. 

* We've seen this issue more and more recently.  Possession charge + receipt charge = double jeopardy?  Not here.
* Ct cites United States v. Dudeck, 657 F.3d 424 (6th Cir. 2011). 
* Possession charge here not a lesser included offense b/c receipt charge here involved receipt of images through a computer.  The possession offense sprang from the transfer of the images to a different medium (an external hard drive). 
* Different conduct, so possession not a lesser-included offense of receipt. 

Issue II: Knowingly Receiving Images.

* D argued that to "knowingly receive images" one must know, the minute one receives an image and w/o even having looked at it, that the image is CP. 
* Not so; one need only be aware that "receipt of the illegal images 'is practically certain to follow'" from one's conduct. 
* And there was ample evidence that D here was practically certain that he would receive CP. 

Issue III: Someone Other than D Coaxed Victim to Produce Images.

* Record shows D asked victim to produce images.  She produced pics during her "relationship" with D. 
* Gov did not violate Brady by failing to produce the chat logs (until the day before trial) of victim's conversations with other men.  Logs not admissible b/c of Rule 412, so not subject to Brady. 
* Dist ct didn't abuse discretion by refusing to adjourn trial b/c of this evidence.
* Due process and Constitution don't trump here b/c logs not critical to D's defense.  Enough other evid that D induced victim to engage in sexual conduct and film it.  Rape-shield interests were strong here: protects victims and encourages them to come forward, the COA found.  And victim here a minor, so even stronger interest. 

Issue IV: Restitution.

* D argued that dist ct should have admitted the chat logs at restitution hearing.  D was required to pay most of victim's psychotherapy costs. 
* But nothing in record that dist ct excluded chat logs at hearing. 
* And rules of evidence don't apply at sentencing, so can't assume the dist ct excluded the evidence. 

Restitution

MARTIN T.WILLIAMS

Direct Appeal

Published

http://www.ca6.uscourts.gov/opinions.pdf/10a0204p-06.pdf

A jury convicted the defendant on five counts of fraudulently overbilling Medicare, Medicaid, and several private insurance companies as an employee of a psychiatric medical practice. The district court sentenced the defendant to 12 months of probation and ordered him to pay restitution in the amount of $822,459.21. The defendant appealed his conviction, as well as the amount of restitution that he was ordered to pay. He also brought a claim of ineffective assistance of trial counsel. Appellate court affirmed the portion of the district court’s judgment relating to the conviction, but dismissed without prejudice the ineffective-assistance-of-counsel claim, vacated the portion of the district court’s judgment that concerned restitution, and remanded the restitution issue for further consideration.

The Court issued a fairly lengthy opinion, which included a long recitation of a complicated procedural history. Ultimately, it was decided that the ‘deliberate ignorance’ instruction did not conflict with the ‘specific intent’ instruction on the conspiracy charge.

The Court declined to consider the defendant’s ineffective-assistance-of-counsel argument as not ripe. The Court found that the restitution issue had its own complicated procedural history with much blame going to the government’s actions in this regard. It ruled, however, that the doctrine of equitable estoppel could not overcome the mandatory nature of the statute on restitution ’requiring’ the Court to order restitution in the proper amount. The Court also ruled that the district court had failed to comply with Rule 32 by not specifically addressing the defendant’s restitution objections.

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