United States v. Amy Unknown

Case: 09-41238 Document: 00511420228 Page: 1 Date Filed: 03/22/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
March 22, 2011

No. 09-41238 Lyle W. Cayce
Clerk

In re: AMY UNKNOWN,

Petitioner

Consolidated with

No. 09-41254

UNITED STATES OF AMERICA,

Plaintiff – Appellee

DOYLE RANDALL PAROLINE,

Defendant – Appellee

v.

AMY UNKNOWN,

Movant – Appellant

Appeals from the United States District Court
for the Eastern District of Texas

Before JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges.
EDITH H. JONES, Chief Judge:1

1
Judges JOLLY and GARZA concur, except in Part II, which they consider advisory.
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No. 09-41238
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No. 09-41254

“Amy,” the victim of childhood sexual abuse and of a widely broadcast set
of photos depicting her abuse, has pursued restitution under the Crime Victims
Rights’ Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her
photos on the internet. Her appeal from the district court’s denial of relief
arrives in an unusual posture. She filed both a direct appeal under
28 U.S.C. § 1291 and a petition for a writ of mandamus under
18 U.S.C. § 3771(d)(3). A panel of this court denied mandamus. In re Amy,
591 F.3d 792 (5th Cir. 2009). This panel was assigned, for ease of
administration, both the direct appeal and Amy’s motion for panel rehearing of
her mandamus petition. We need not reach the issue whether a crime victim
has a right to a direct appeal, because the district court clearly and indisputably
erred in grafting a proximate causation requirement onto the CVRA.
Consequently, Appellant’s petition for panel rehearing is granted; her petition
for a writ of mandamus is likewise granted, and the case is remanded to the
district court to determine the amount of restitution owed by Doyle Randall
Paroline.
I. Background
The National Center for Missing and Exploited Children (“NCMEC”),
which filed a brief in the district court, reports that its analysts have identified
over 35,000 images of Amy’s abuse among the evidence in over 3,200 child
pornography cases since 1998. NCMEC describes the content of these images
as “extremely graphic.”
Images of Amy were among the hundreds of images of child sexual abuse
that defendant Doyle Randall Paroline possessed. Paroline pled guilty to
possession of child pornography in January 2009. At sentencing, Amy filed a

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No. 09-41254

victim impact statement and request for restitution.2 See 18 U.S.C. § 2259(a).
The latter sought $3,367,854, the cumulative cost of her lost income, attorney’s
fees, and ongoing psychological care. The government initially supported (and
formally presented) Amy’s request for restitution. NCMEC also filed a brief that
detailed the lasting impact of sexual assault and the victim’s additional suffering
from the knowledge that people continue to view and circulate images of her
abuse. Additional evidence before the district court included an expert
evaluation of Amy’s psychological condition, economic report estimating her lost
earnings, and scholarly articles regarding the general effects of child
pornography. United States v. Paroline, 672 F. Supp. 2d 781, 792 (E.D. Tex.
2009).
Notwithstanding the heartrending evidence, the district court denied
Amy’s request for restitution. The court held that the CVRA required Amy and
the government to prove that Paroline’s possession of Amy’s images—as distinct
from the thousands of other individuals who continue to possess and view the
images—proximately caused the injuries for which she sought restitution. Id. at
791-92. The government, in advancing Amy’s restitution claim, now accepts the
court’s premise that proximate causation is required for all types of injury listed
in § 2259.
Amy immediately appealed the district court’s decision. She filed both a
direct appeal of the court’s final order and a petition for writ of mandamus
authorized by the CVRA, 18 U.S.C. § 3771(d)(3). A divided panel of this court

2
Although the present lawsuit focuses on restitution, the CVRA guarantees a number
of other rights as well. Among these are (1) reasonable protection from the accused, (2) notice
of any court or parole proceedings involving the accused, (3) attendance at such proceedings,
(4) an opportunity to be heard at proceedings involving release, plea, sentencing or parole,
(5) communication with the government’s attorney in the case involving the victim,
(6) avoidance of delay, and (7) “[t]he right to be treated with fairness and with respect for the
victim’s dignity and privacy.” 18 U.S.C. § 3771(a).

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refused the mandamus request, upholding the district court’s conclusion that
proximate causation permeates § 2259. In re Amy, 591 F.3d 792, 794-95 (5th
Cir. 2009) (“Although this circuit has not yet construed the proximate cause
requirement under Section 2259, it is neither clear nor indisputable that Amy’s
contentions regarding the statute are correct.”). In response, Amy has sought
both panel and en banc rehearing of her mandamus petition. Because her direct
appeal was assigned to this panel, this panel was also assigned for purposes of
rehearing the petition for mandamus.3
II. Jurisdiction
The first question before this court is what sort of jurisdiction we have to
review the district court’s order. Given our conclusion that the writ of
mandamus should be granted, we need not resolve the problem, posed by
divided sister circuit opinions, whether the CVRA allows a victim to bring a
direct appeal. The difficulty of this issue ought to be explained, however, for the
benefit of future panels.
The CVRA provides that: “If the district court denies the relief sought, the
movant [victim] may petition the court of appeals for a writ of mandamus.”
18 U.S.C. § 3771(d)(3). As to the government, “In any appeal in a criminal case,
the Government may assert as error the district court’s denial of any crime
victim’s right in the proceeding to which the appeal relates.”
18 U.S.C. § 3771(d)(4). The CVRA does not state that victims’ sole avenue for
review is the writ of mandamus, nor does it authorize the government alone to

3
This court heard oral arguments in Amy’s direct appeal on November 4, 2010. The
decision to hear arguments did not commit the court to a conclusion on the availability of
direct appeal. We remain the rehearing panel for purposes of Amy’s mandamus petition. See
United States v. Jackson, 559 F.3d 368 (5th Cir. 2009) (conducting panel rehearing of the
decision issued by a differently composed prior panel in United States v. Jackson, 285 F. App’x.
149 (5th Cir. 2008)).

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bring a direct appeal.4 In any event, 28 U.S.C. § 1291 generally authorizes direct
appeal by parties aggrieved by final district court judgments.
The government moved to dismiss Amy’s direct appeal filed under § 1291,
contending that mandamus is her exclusive appellate vehicle. The CVRA’s
express provisions confirm this proposition, according to the government and
Paroline, abetted by the interpretive presumption that Congress has “legislated
against the background of our traditional legal concepts . . . .” United States v.
United States Gypsum Co., 438 U.S. 422, 437, 98 S. Ct. 2864 (1978). Prominent
among the relevant legal traditions is that non-parties may not file appeals. The
Supreme Court has long recognized “[t]he rule that only parties to a lawsuit, or
those that properly become parties, may appeal an adverse judgment . . . .”
Marino v. Ortiz, 484 U.S. 301, 304, 108 S. Ct. 586 (1988) (citing United States ex
rel. Louisiana v. Jack, 244 U.S. 397, 402, 37 S. Ct. 605 (1917)). Crime victims
have not been recognized as parties, and the Federal Rules of Criminal
Procedure do not allow them to intervene as parties to a prosecution. Circuit
courts have applied this rule in the context of restitution. Under the Victim and
Witness Protection Act (VWPA), the CVRA’s predecessor that made restitution
an option rather than mandatory, the Ninth Circuit held that “[n]owhere in the
statute does Congress suggest that the VWPA was intended to provide victims
with a private remedy to sue or appeal restitution decisions . . . .” United States

4
A related argument concerns the collateral order doctrine. The Supreme Court has
recently reiterated the doctrine’s rare applicability. Mohawk Indus., Inc. v. Carpenter, ---- U.S.
----, 130 S. Ct. 599 (2009). A condition for the collateral order doctrine is that the order at
issue be “effectively unreviewable on appeal.” Id. at 604. In the present case, the government
argues that its ability to appeal a restitution order defeats this condition; Amy contends that
such an order remains effectively unreviewable as to her. We present this controversy but
need not resolve it.

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v. Mindel, 80 F.3d 394, 397 (9th Cir. 1996).5 The government contends that
decades of experience, a general prohibition on non-party appeals, and its
application in the context of victims’ rights stand against Amy’s hope to invoke
§ 1291 to appeal the denial of restitution.
Moreover, a pair of recent decisions expressly denies direct appeals under
the CVRA. See United States v. Hunter, 548 F.3d 1308 (10th Cir. 2008), United
States v. Aguirre-Gonzalez, 597 F.3d 46 (1st Cir. 2010). Hunter anchored its
statutory interpretation in three provisions of the CVRA: the authorization of
mandamus review for victims, the government’s ability to bring a direct appeal
on a victim’s behalf, and the statement that “[n]othing in this chapter shall be
construed to impair the prosecutorial discretion of the Attorney General or any
officer under his direction.” Id. at 1315-16 (quoting 18 U.S.C. § 3771(d)(5)). The
first two provisions support Hunter’s conclusion by simple negative implication.
The last of them, according to the court, implies that affording victims full
appellate rights could compromise the government’s ability to enter plea
agreements because a victim’s appeal could re-open the negotiated judgment,
removing the certainty that motivates defendants to settle. Id. Hunter also
suggests that precedent from other circuits supports its conclusion. It cites two
decisions that applied traditional abuse-of-discretion standards while professing
to conduct mandamus review. Id. at 1315 n.5 (citing Kenna v. U.S. Dist. Court,

5
The Ninth Circuit was not alone in its interpretation of the VWPA. See United States
v. Palma, 760 F.2d 475, 479 (3d Cir. 1985) (“the victim . . . is not made a party to the
sentencing proceeding”), United States v. Brown, 744 F.2d 905, 909-10 (2d Cir. 1984) (“the
victim is not a party to the sentencing hearing . . . . Neither can he appeal a determination
he deems inadequate.”), United States v. Franklin, 792 F.2d 998, 999-1000 (11th Cir. 1986)
(“no statute . . . give[s] us the authority to entertain an appeal by a victim, such as appellant,
who was not a party to the sentencing proceeding in the district court.”), United States v.
Kelley, 997 F.2d 806, 807 (10th Cir. 1993) (“We . . . hold that [the victim] has no standing to
prosecute this appeal.”).

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435 F.3d 1011, 1017 (9th Cir. 2006), In re W.R. Huff Asset Management Co.,
LLC, 409 F.3d 555, 562-63 (2d Cir. 2005)). By “disguising” ordinary appellate
review as mandamus review in § 3771(d)(3) petitions, these decisions support the
conclusion that victims have no right to a direct appeal: “To hold otherwise
would effectively grant victims two opportunities to appeal, both of which would
be subject to identical appellate standards of review—a clearly inefficient and
illogical scheme.” Id.6
Amy asserts that the propriety of her direct appeal is not expressly
foreclosed by the CVRA and actually finds support in pre-CVRA authorities—as
Congress is presumed to have been aware—as well as recent caselaw. Before the
passage of the CVRA, this court heard appeals from non-parties with a direct
interest in aspects of criminal prosecutions. United States v. Briggs, 514 F.2d
794 (5th Cir. 1974) (holding that unindicted co-conspirators had standing to
challenge passages in an indictment); United States v. Chagra, 701 F.2d 354 (5th
Cir. 1983) (allowing newspaper to appeal order restricting access to court
hearing). A rape victim was authorized in Doe v. United States, 666 F.2d 43, 46
(4th Cir. 1981), to appeal the trial court’s ruling on a rape shield law. Most
important, the Third Circuit held, albeit perfunctorily, that “We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291” to hear the appeal of a purported
victim seeking restitution under the VWPA. United States v. Kones, 77 F.3d 66,

6
If Hunter is correct that courts are cloaking their ordinary review in mandamus
language, that fact suggests unease with denying victims a direct appeal, the very conclusion
Hunter advances. As discussed below, this circuit insists on a single mandamus standard. As
a corollary, this court can neither follow nor condone the shrouded direct review in Huff and
Kenna. See infra Part III. The Hunter opinion also overlooks precedent that favors direct
appeal. Neither Hunter nor its successor, In re Antrobus, 519 F.3d 1123 (10th Cir. 2008),
discusses the Sixth Circuit’s decision in United States v. Perry, 360 F.3d 519 (6th Cir. 2004).
Perry distinguished the entire corpus of VWPA precedent for the fact that restitution was not
mandatory under that statute, but Hunter cites no fewer than three such cases in support of
its holding.

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68 (3rd Cir. 1996). Based on the conflicting pre-CVRA cases cited by Amy and
the government, one may legitimately wonder which legal landscape Congress
is presumed to have been viewing when it crafted the CVRA.
The Third Circuit also ruled, in a split panel decision issued while the
CVRA was under consideration in Congress, that a crime victim could appeal
pursuant to § 1291 the district court’s method of enforcing the restitution order.
United States v. Perry, 360 F.3d 519 (3rd Cir. 2004).7
Finally, post-CVRA, the Sixth Circuit offered indirect support for Amy’s
position when it allowed a direct appeal under the CVRA. See In re Siler,
571 F.3d 604 (6th Cir. 2009). Although the events in Siler began with a criminal
investigation, the lawsuit at issue was a civil action against the police for
violations of 42 U.S.C. § 1983. The plaintiffs hoped to use a provision of the
CVRA to gain access to the defendants’ Presentence Reports (PSRs), which they
believed contained evidence that would support their case. Id. at 607-08. In
accepting the appeal, however, the Sixth Circuit noted that “the issue now before
us is unrelated to the [criminal] case against the defendants.”8 Id. at 606-07.

7
Amy argues that statutory developments between the VWPA and the CVRA have
nullified pre-CVRA holdings that victims have no independent rights in criminal prosecutions.
This interpretation of the shift from “may,” 18 U.S.C. § 3663(a)(1)(A), to “shall,” 18 U.S.C.
§ 3663A(a)(1), has persuaded at least one court. Perry, 360 F.3d at 531 (“under the VWPA, a
court did not have to award restitution . . . . Thus, particular features of the VWPA
scheme—features absent from the [CVRA]—explain the decisions that deny standing to appeal
a VWPA restitution order.”).
8
The Tenth Circuit has attempted to substantiate the distinction between victims’
rights in civil and criminal contexts. Hunter, 548 F.3d at 1312. “Civil cases,” that court
reasoned, “often implicate the pecuniary rights of non-parties . . . . Criminal trials, of the
other hand, place an individual citizen against the United States government.” Id. To be fair,
although Hunter was a CVRA case, it addressed the entire panoply of victims’ rights contained
in the statute. In the specific context of restitution, Hunter’s distinction could not be less
accurate. A restitution order implicates only the pecuniary interests of a criminal defendant,
and the dispute over how much restitution is due occurs between a criminal and his victim—in
fact, the victim’s ability to pursue this dispute without government involvement is precisely

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To summarize briefly the arguments and authorities cited by the “parties”
is not to resolve whether a § 1291 appeal is available to a victim seeking relief
for any of her rights, including restitution, under the CVRA. Resolution is
difficult because the cases employ conflicting reasoning. Perry, which involved
a dispute among victims who were to share an award, focused on the victims’
property rights in their restitution. 360 F.3d at 530-31. Kones and Hunter
concerned denials of restitution, but the former permitted appeal under the
optional-restitution VWPA, while the latter denied appeal under the mandatory-
restitution CVRA. The cases also ignore their predecessors: Perry fails to
acknowledge Kones, while Hunter does not cite either Perry or Kones. Federal
victim rights legislation has steadily evolved toward expanding the formal rights
and role of victims in the prosecutorial process. Nevertheless, when Congress
as recently as the 1980s failed to offer any appellate rights to review restitution
orders, which path did it more likely take when creating appellate redress in the
CVRA? Did it add the mandamus vehicle to a victim’s pre-existing right to
appeal under § 1291? Or did it craft “mandamus” in lieu of a non-existent direct
appeal right for non-parties? If the latter course was chosen, did Congress
render to victims a mere formality, given the traditionally narrow scope of
mandamus relief, or did it apply that term to a more substantial vehicle for
redress of victims’ grievances? We need not resolve the uncertainties, because
our analysis leads to the conclusion that, even under the narrow standard of
traditional mandamus review, the district court’s judgment cannot stand. This
conclusion would perforce favor Amy if a § 1291 de novo appellate standard
applied.

the issue in this case.

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III. Standard of Review
When a panel rehearing is granted, the standard of review is the same one
that applied at the original hearing. See, e.g., Chicago Bridge & Iron Co. N.V.
v. FTC, 534 F.3d 410, 422 (5th Cir. 2008). This court evaluates a petition for
writ of mandamus under the CVRA according to the standard announced in In
re Dean, 527 F.3d 391 (5th Cir. 2008). Dean held that mandamus is appropriate
“only if (1) the petitioner has no other adequate means to attain the desired
relief; (2) the petitioner has demonstrated a right to the issuance of a writ that
is clear and indisputable; and (3) the issuing court . . . is satisfied that the writ
is appropriate under the circumstances.” Id. at 394 (internal quotations
omitted). In announcing the test for mandamus under the CVRA, the Dean
decision refers to this court’s holding in In re United States, 397 F.3d 274 (5th
Cir. 2005), as well as the Supreme Court’s decision in Cheney v. United States
District Court, 542 U.S. 367, 124 S. Ct. 2576 (2004), neither of which concerns
the CVRA or restitution. By relying on general mandamus precedent, In re Dean
confirms that a single mandamus standard reigns in the Fifth Circuit,
regardless of the context in which the petition arises.9

9
We pause to note, as part of the jurisdictional conundrum, that our sister circuits are
far from united in the standard to be applied. At least two circuits have applied lower
standards of review when faced with a mandamus petition under the CVRA. See Kenna v.
U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006) (“we must issue the writ whenever we
find that the district court's order reflects an abuse of discretion or legal error”), In re W.R.
Huff Asset Management Co., LLC, 409 F.3d 555, 562-63 (2d Cir. 2005) (invoking § 3771(d)(3),
the mandamus review provision, but concluding that “the district court’s determination under
the CVRA should be reviewed for abuse of discretion.”). These standards appear to be more
amenable to reversing the district court than the general mandamus standard. Cf. In re The
City of New York, 607 F.3d 923, 928-29 (2d Cir. 2010) (applying Cheney’s three-part test), Perry
v. Schwarzenegger, 591 F.3d 1147, 1156 (9th Cir. 2010) (citing Cheney and applying an
equivalent five-part test from Ninth Circuit precedent). The Tenth Circuit, however, preceded
this court in applying the traditional mandamus standard to a victim’s appeal under the
CVRA. See In re Antrobus, 519 F.3d 1123 (10th Cir. 2008). As the Tenth Circuit explained,
“[m]andamus is a well worn term of art in our common law tradition.” Id. at 1127. Moreover,

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IV. Discussion
As the Supreme Court has noted, the “hurdles” limiting use of mandamus,
“however demanding, are not insuperable.” Cheney, 542 U.S. at 381. This
court’s initial denial of Amy’s petition for a writ of mandamus focused on the
second of the three Cheney factors—i.e., whether Amy’s right to restitution is
“clear and indisputable.” The other two factors played no part in the denial. As
to the first factor, the court cited the Tenth Circuit’s Hunter decision in holding
that “the petitioner likely has no other means for obtaining review of the district
court’s decision not to order restitution.” In re Amy, 591 F.3d at 793. Based on
the preceding discussion, we can affirm this conclusion without endorsing
Hunter’s holding that a victim has no right to direct appeal.
Likewise, the third factor in Cheney—whether the writ is appropriate
under the circumstances—favors Amy’s petition. Whatever Congress envisioned
regarding a victim’s right to direct appeal, the CVRA expressly authorizes
mandamus under these circumstances. 18 U.S.C. § 3771(d)(3).
The remaining question is whether Amy has a “clear and indisputable”
right to restitution. Given more time to ponder and research, we have
reconsidered this question. Courts are required to award victims of child sex
abuse “the full amount of the victim’s losses.” 18 U.S.C. § 2259(b)(1). In this
context,
‘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;

“[i]t is a well-established rule of construction that where Congress uses terms that have
accumulated settled meaning under the common law, a court must infer, unless the statute
otherwise dictates, that Congress means to incorporate the established meaning of these
terms.” Neder v. United States, 527 U.S. 1, 21, 119 S. Ct. 1827, 1840 (1999).

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(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.
18 U.S.C. § 2259(b)(3).
The district court denied Amy’s request for restitution because the
government failed to prove “what losses, if any, were proximately caused by
Paroline’s possession of Amy’s two pornographic images . . . .” United States v.
Paroline, 672 F. Supp. 2d 781, 783 (E.D. Tex. 2009) (emphasis added). It
reasoned that the statute, precedent, and compliance with the Eighth
Amendment compel the conclusion that each category of loss in § 2259(b)(3)
includes the element of proximate causation, even though the statute confines
that requirement to the “catchall” provision, subsection F. This conclusion is
clearly and indisputably wrong.
The structure and language of § 2259(b)(3) impose a proximate causation
requirement only on miscellaneous “other losses” for which a victim seeks
restitution. As a general proposition, it makes sense that Congress would
impose an additional restriction on the catchall category of “other losses” that
does not apply to the defined categories. By construction, Congress knew the
kinds of expenses necessary for restitution under subsections A through E;
equally definitionally, it could not anticipate what victims would propose under
the open-ended subsection F.
Comparing the language of § 2259 with other restitution statutes affirms
the conclusion that proximate causation applies only to the catchall category of
harms. Under the VWPA, a victim is “a person directly and proximately harmed
as a result of the commission of an offense. . . .” 18 U.S.C. § 3663A(a)(2)

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(emphasis added). In contrast, § 2259, enacted 14 years later as part of the
MVRA, defines a victim as “the individual harmed as a result of a commission
of a crime . . . .” 18 U.S.C. § 2259(c) (emphasis added).10 Comparing these
statutes reveals that Congress abandoned the proximate causation language
that would have reached all categories of harm via the definition of a victim.
This change is consistent with the reasons for enacting a second generation of
restitution statutes. See, e.g., Unites States v. Ekanem, 383 F.3d 40, 44 (2d Cir.
2004) (noting “the intent and purpose of the MVRA to expand, rather than limit,
the restitution remedy.”), United States v. Perry, 360 F.3d 519, 524 (6th Cir.
2004) (“The new law unquestionably reflects a dramatically more ‘pro-victim’
congressional attitude . . . .”). The evolution in victims’ rights statutes
demonstrates Congress’s choice to abandon a global requirement of proximate
causation.
In applying proximate causation beyond the catchall, the district court
cited two Supreme Court cases interpreting statutory lists. Paroline, 672 F.
Supp. 2d at 788 (citing Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S.
345, 40 S. Ct. 516 (1920), Fed. Mar. Comm’n v. Seatrain Line, Inc., 411 U.S. 726,
93 S. Ct. 1773 (1973)). In Porto Rico Railway, the Supreme Court stated that
“When several words are followed by a clause which is applicable as much to the

10
The CVRA contains a definition of “crime victim” that parallels the VWPA and
incorporates proximate causation: “a person directly and proximately harmed as a result of
the commission of a Federal offense or an offense in the District of Columbia.” 18 U.S.C.
§ 3771(e). We focus on the MVRA definition, however, because Amy’s claim to restitution rests
on that statute. The district court appreciated this fact and therefore turned to a provision
of the MVRA to find a proximate causation requirement, viz. § 2259(b)(3). To evaluate the
district court’s interpretation, we look to other sections of the same statute for guidance. The
parties do not challenge whether Amy is a victim. Nevertheless, the MVRA's internal
definition of victim is probative of the meaning of § 2259(b)(3).

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first and other words as to the last, the natural construction of the language
demands that the clause be read as applicable to all.” Id. at 348.
But there are lists, and then there are other lists. Here, the statute does
not present the types of recoverable costs in a series, separated by commas.
Instead, it begins a sentence (“‘full amount of the victim’s losses’ includes any
costs incurred by the victim for--”) and then lists six different endings for that
sentence. From the double-dash that opens the list to the semicolons that
separate each of its elements, the grammatical structure of § 2259(b)(3) is unlike
the statute in Porto Rico Railway. The latter was a blurry composite of lists,
separated by commas and without any numbering or introductory punctuation.11
Grammar alone counsels against applying the rule of Porto Rico Railway to the
current statute.
Even if the interpretive approach of Porto Rico Railway applied here, so
would the Court’s comment that the statute in question “manifests a general
purpose . . . [and i]f the application of the cause were doubtful, we should so
construe the provision as to effectuate the general purpose of Congress.” Id. In
the case of § 2259, the statute manifests a congressional purpose to award broad
restitution. See United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999)
(“Congress [in § 2259] mandated broad restitution for a minor victim . . . .”),
United States v. Laney, 189 F.3d 954, 966 (9th Cir. 1999) (“Section 2259 is
phrased in generous terms, in order to compensate the victims of sexual abuse
for the care required to address the long term effects of their abuse.”). In light
of the recognized purpose for which Congress crafted the list in § 2259(b)(3), a

11
The relevant provision stated: “Said District Court shall have jurisdiction of all
controversies where all of the parties on either side of the controversy are citizens or subjects
of a foreign state or states, or citizens of a state, territory, or district of the United States not
domiciled in Porto Rico . . . .” Porto Rico Ry., 253 U.S. at 346.

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No. 09-41238
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No. 09-41254

more faithful application of Porto Rico Railway would confine the proximate
causation requirement to the catchall category of subsection F.
The district court relied on another Supreme Court case addressing an
interpretive question that is the inverse of the one here. Fed. Mar. Comm’n v.
Seatrain Line, Inc., 411 U.S. 726, 93 S. Ct. 1773 (1973). The statute in Seatrain
included a seven-category list like the one in § 2259(b)(3). All but one of the
categories referred to business relationships that were ongoing. The remaining
category was ambiguous, and the Federal Maritime Commission sought to use
it to regulate a one-time event. Id. at 732-33. The question before the Court,
therefore, was unlike the present case: whether to apply a condition present in
all but one category to the sole outlier (as opposed to applying a restriction
present in only one category to all of the others, as the district court did here).
The Supreme Court resolved this question by looking to all six of the other
categories and following their example: “of the seven categories, six are expressly
limited to ongoing arrangements . . . .” 733-34. The Court found it especially
significant that the catchall category shared the restriction. Id. at 734.
Here, the district court seizes on Seatrain’s comments about catchall
categories to justify a proximate causation requirement, which appears in the
catchall, subsection F. Paroline, 672 F. Supp. 2d at 788. This is a
misapplication of Seatrain. In Seatrain, the special role of a catchall category
was not determinative because the catchall imposed the same condition as the
other uncontested categories. It is just as likely that the Court’s other
rationale—majority rule among the categories—controlled the outcome.
Moreover, the treatise from which the Court drew its interpretation of catchalls
includes the following restriction: “But this is so, only if the result is consistent
with the legislative intent . . . . The rule will not be applied where there is ‘no
ambiguity,’ or to thwart the legislative intent . . . .” 2 J. G. S UTHERLAND,

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S TATUTES AND S TATUTORY C ONSTRUCTION § 4908 (3d ed. 1943). The Supreme
Court understood this restriction. As in Porto Rico Railway, the Court in
Seatrain took its cues from “the statutory scheme” and what it says about
congressional intent. 411 U.S. at 734. As illustrated in the citations above,
congressional intent is no mystery in the context of § 2259. Had the district
court adhered more closely to the precedent it cited, it would have reached the
opposite conclusion.
Restricting the “proximate result” language to the catchall category in
which it appears does not open the door to limitless restitution. The statute
itself includes a general causation requirement in its definition of a victim: “For
purposes of this section, the term ‘victim’ means the individual harmed as a
result of a commission of a crime under this chapter . . . .” 18 U.S.C. § 2259(c)
(emphasis added). The district court displayed due care in analyzing whether
Amy is a victim of Paroline’s crime of possessing—but not creating—images of
her sexual assault. Paroline, 672 F. Supp. 2d at 785-87. The finding that Amy
is a victim under § 2259(c) rests on the Supreme Court’s reasoning in New York
v. Ferber, 458 U.S. 747, 102 S. Ct. 3348 (1982) as well as this court’s holding in
United States v. Norris, 159 F.3d 926 (5th Cir. 1998).12 In Norris this court

12
The causation reasoning in Norris bears extended reproduction:
The consumer, or end recipient, of pornographic materials may be
considered to be causing the children depicted in those materials to suffer as a
result of his actions in at least three ways.
First, the simple fact that the images have been disseminated
perpetuates the abuse initiated by the producer of the materials. . . .
Second, the mere existence of child pornography represents an invasion
of the privacy of the child depicted. Both the Supreme Court and Congress have
explicitly acknowledged that the child victims of child pornography are directly
harmed by this despicable intrusion on the lives of the young . . . .
Third, the consumer of child pornography instigates the original
production of child pornography by providing an economic motive for creating
and distributing the materials. . . .
Any of these effects, stemming directly from a consumer's receipt of or

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No. 09-41254

rejected the argument that possessors of child pornography are only an “indirect
or secondary” cause of the victim’s harm. 159 F.3d at 928-29. Given the
statute’s built-in causation requirement and the volume of causation evidence
in the context of child pornography, fears over excessive punishment are
misplaced. We therefore do not share the district court’s concern that rejecting
a proximate causation requirement would place § 2259 in danger of offending the
Eighth Amendment. See Paroline, 672 F. Supp. 2d at 788 n.9.
A second reason to doubt that Paroline will pay an unconstitutional price
for his crime is the possibility that he can seek contribution from other persons
who possess Amy’s images. Although the statute holds a criminal responsible
for “the full amount of the victim’s losses,” 18 U.S.C. § 2259(b)(1), it instructs the
court to enforce the restitution award “in accordance with section 3664,”
18 U.S.C. § 2259(b)(2). Section 3664 states that the court may enforce a
restitution order “by all other available and reasonable means.” 18 U.S.C.
§ 3664(m)(1)(A)(ii). Among these is joint and several liability. Holding
wrongdoers jointly and severally liable is no innovation. See, e.g., 42 U.S.C.
§ 9607(a) (CERCLA). It will, however, enable Paroline to distribute “the full
amount of the victim’s losses” across other possessors of Amy’s images. Among
its virtues, joint and several liability shifts the chore of seeking contribution to
the person who perpetrated the harm rather than its innocent recipient.
This court offers no opinion on the amount of restitution due in Amy’s
particular circumstances. The district court has conducted two evidentiary
hearings already. It is best qualified to determine Amy’s total harm and the
fraction due to Paroline’s crime.

willingness to receive child pornography, would amply justify the conclusion
that a child depicted in the pornographic images was a “victim” of that crime.
159 F.3d at 929-30.

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V. Conclusion
Incorporating a proximate causation requirement where none exists is a
clear and indisputable error. Amy is entitled to receive restitution under the
CVRA. We therefore GRANT Amy’s petition for panel rehearing and likewise
GRANT her petition for a writ of mandamus. Because the district court did not
quantify the amount of restitution to which Amy is entitled or the fraction
attributable to Paroline, the case is REMANDED for resolution of that issue.

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