10th Circuit: Child porn restitution award requires showing that losses were proximately caused by defendant
U.S. v. Benoit, No. 12-5013 (10th Cir. April 2, 2013)
Finally, Benoit argues that the district court’s restitution order was improper. In accord with the majority of circuits to have considered the issue, we hold that 18 U.S.C. § 2259 requires a showing that a victim’s losses are proximately caused by the defendant’s conduct. See United States v. Aumais, 656 F.3d 147, 153 (2nd Cir. 2011). Because the district court did not explain whether specific losses suffered by the victim were proximately caused by Benoit’s actions, we remand for a redetermination of the portion of damages allocable to Benoit.
ULaw Today: Yesterday, the U.S. Court of Appeals for the Ninth Circuit ruled in favor of Amy and Vicky, two child pornography victims, in an appeal brought by the Utah Appellate Clinic. | In re: Amy & Vicky
Sentencing Law and Policy Blog: A helpful reader alerted me to a notable ruling by a Sixth Circuit panel today in US v. Gamble, No. 11-5394 (6th Cir. Feb 27, 2013) (available here). Here is how the majority opinion gets started . . .
Emily Bazelon at the New York Times (1/24/13): In October, the Fifth Circuit ruled in Amy’s favor, in a 10 to 5 decision. The court also accepted the theory of joint and several liability, finding that this means of allocating shared responsibility can ensure “that Amy receives the full amount of her losses, to the extent possible, while also ensuring that no defendant bears more responsibility than is required for full restitution.” . . . The Fifth Circuit’s decision creates a clear split among the appeals courts over how to interpret Congress’ provision of restitution for sex-crime victims — a split that only the Supreme Court can resolve. Cassell and Marsh have asked the justices to do that, and the court could hear a restitution case as early as next fall. | In re Amy Unknown, No. 09-41238 (5th Cir. March 22, 2011)
7th Circuit: Restitution to child porn victims owed by possessors is less than amounts owed by distributors
U.S. v. Laraneta, No. 12-1302 (7th Cir. Nov. 14, 2012) (Opinion by Posner joined by Williams and Sykes)
The court held that a possessor of child porn images is not jointly liable for the total amount of restitution owed to victims by distributors of such images, because the amount of harm caused by possession is less than that caused by distribution. The Court also held that there is no right of intervention for child porn victims where claims of restitution are denied, but rather the appropriate remedy is to seek mandamus at the court of appeals pursuant to 18 U.S.C. § 3771(d)(3).
Appellate Daily: Paul Cassell, a former federal judge, represents child pornography victims in a series of federal appellate cases. In October alone, Cassell notched a win and a loss in two circuit courts and argued in another. The case he won created a circuit split about restitution for victims, which the U.S. Supreme Court will almost certainly be asked to review.
AP: Child pornography victims can recover money from people convicted of viewing their abuse without having to show a link between the crime and their injuries, a federal appeals court ruled Monday. | In re: Amy Unknown (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)
Lorelei Laird at the ABA Journal: Under the Crime Victims’ Rights Act, the government must notify Amy and other child pornography victims anytime anyone is arrested by federal authorities for possessing their images. Her attorney, James Marsh of New York City, says his office has received at least 1,500 required notices of federal prosecutions for possession of those images. “The day after we were retained in 2008, we had someone open up all these notices she received in the calendar years 2006 and 2007,” Marsh says. “It took two days just to open the envelopes.” Using the restitution provisions of the Violence Against Women Act, Marsh has begun utilizing the courts to request financial restitution from those convicted of possessing images of Amy’s child sexual abuse.