FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30065
Plaintiff-Appellee, D.C. No.
v. 2:08-cr-00354-
JOSHUA OSMUN KENNEDY, RAJ-01
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted
February 9, 2011—Seattle, Washington
Filed July 11, 2011
Before: Betty B. Fletcher, Richard A. Paez, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
9169
UNITED STATES v. KENNEDY 9173
COUNSEL
Suzanne Lee Elliott, Law Offices of Suzanne Lee Elliott,
Seattle, Washington, for appellant Joshua Osmun Kennedy.
Helen J. Brunner, Assistant United States Attorney, Seattle,
Washington, for appellee United States of America.
OPINION
IKUTA, Circuit Judge:
Joshua Osmun Kennedy was convicted by a jury of pos-
sessing and transporting child pornography. He appeals his
conviction, his sentence, and the district court’s order direct-
ing him to pay $65,000 in restitution to two victims. We
affirm Kennedy’s conviction and sentence. Because the gov-
ernment failed to carry its burden of proving that Kennedy’s
offense conduct proximately caused the losses incurred by the
victims, we vacate the restitution order.
I
On November 9, 2007, Kennedy arrived at Sea-Tac Airport
from an overseas trip. After a secondary inspection of his bag-
9174 UNITED STATES v. KENNEDY
gage by U.S. Customs and Border Patrol revealed images of
an “underage-looking” nude female “in different sexual posi-
tions” on his laptop computer, Kennedy’s computer was
seized. Forensic specialists later found 30 images of child por-
nography among the laptop’s active files and approximately
5,0001 images in the deleted cache files.2 On November 5,
2008, a grand jury indicted Kennedy on one count of posses-
sion of child pornography, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) (2006),3 and one count of transportation of
child pornography, in violation of 18 U.S.C. § 2252(a)(1)
(2006).4
1
During sentencing, the government stated that 5,000 was a “very con-
servative” estimate and asserted that the actual number was closer to
16,000.
2
When a user views a web page online, the web browser automatically
saves copies of the images on that page to the computer’s internet “cache.”
These “cache files” improve browser performance by allowing the
browser to quickly redisplay the same images if the user returns to the
page. See United States v. Romm, 455 F.3d 990, 993 nn.1, 3 (9th Cir.
2006). Cache files can be deleted: (1) automatically by the web browser,
(2) at the request of the user from within the web browser, or (3) manually
by the user. See id. at 995. Deleted cache files remain in the computer’s
“unallocated space” until they are overwritten by other material. United
States v. Flyer, 633 F.3d 911, 918 (9th Cir. 2011). While in “unallocated
space,” the files can be recovered using special software. Id.
3
At the time of Kennedy’s offense, 18 U.S.C. § 2252A(a)(5)(B) (posses-
sion offense) prohibited:
knowingly possess[ing] any book, magazine, periodical, film,
videotape, computer disk, or any other material that contains an
image of child pornography that has been mailed, or shipped or
transported in interstate or foreign commerce by any means,
including by computer, or that was produced using materials that
have been mailed, or shipped or transported in interstate or for-
eign commerce by any means, including by computer[.]
18 U.S.C. § 2252A(a)(5)(B) (2006).
4
At the time of Kennedy’s offense, 18 U.S.C. § 2252(a)(1) (transporta-
tion offense) prohibited:
knowingly transport[ing] or ship[ping] in interstate or foreign
commerce by any means including by computer or mails, any
visual depiction, if—
UNITED STATES v. KENNEDY 9175
Prior to trial, Kennedy moved pursuant to Federal Rule of
Evidence 403 to exclude the anticipated testimony of five
government witnesses. Each witness was a law enforcement
officer who had been involved in a sexual abuse investigation
relating to one of the individuals depicted in the images found
on Kennedy’s computer. The government intended to use
their testimony to prove that at least some of the individuals
depicted were minors and real people, and that the images
Kennedy possessed had moved in interstate commerce.5 Ken-
nedy argued that the testimony of the officers would be “cu-
mulative,” of “marginal relevance,” and highly inflammatory,
and stated that he did not “intend to argue that the images
[we]re computer simulations” and would not contest that the
“persons depicted in the images are minors.” The district
court denied Kennedy’s motion. The five witnesses testified
on the second day of trial. On August 27, 2009, after three
days of trial, a jury convicted Kennedy on both counts.
Kennedy was sentenced on February 19, 2010. At the hear-
(A) the producing of such visual depiction involves the use of a
minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct[.]
18 U.S.C. § 2252(a)(1) (2006).
5
To establish a basis for federal jurisdiction under the Commerce
Clause, Congress included an interstate nexus as an element of both the
possession and transportation offenses. To convict a defendant of the
transportation offense, the government must prove beyond a reasonable
doubt that the defendant himself “transport[ed]” or “ship[ped]” the images
in “interstate or foreign commerce.” 18 U.S.C. § 2252(a)(1) (2006). Here,
the government proved this element through evidence that Kennedy was
carrying his laptop computer when he entered the country at Sea-Tac air-
port. To convict a defendant of the possession offense, on the other hand,
the government must prove beyond a reasonable doubt that the images
possessed “ha[d] been mailed, or shipped or transported in interstate or
foreign commerce by any means” or that the images were “produced using
materials that have been mailed, or shipped or transported in interstate or
foreign commerce by any means.” 18 U.S.C. § 2252A(a)(5)(B) (2006).
9176 UNITED STATES v. KENNEDY
ing, Kennedy’s counsel argued that possession of child por-
nography is a lesser-included offense of transportation of
child pornography and thus that Kennedy’s dual convictions
violated double jeopardy. The court agreed and stated that it
would remedy the violation by exercising its discretion to
vacate the possession conviction. It gave three reasons for this
decision: first, “[t]he evidence clearly and unambiguously
demonstrate[d] that [Kennedy] knowingly and intentionally
transported a large number of pornographic images of chil-
dren into this country”; second, it would be “paradoxical” to
give Kennedy a shorter sentence just because the government
chose also to charge him with a less serious offense;6 and
third, nothing in 18 U.S.C. § 2252(a)(1) suggested that Con-
gress did not intend to apply that statute to someone in Ken-
nedy’s situation. The court therefore concluded that it “would
be an improper use of its discretion” to vacate the greater
offense. Proceeding to calculate a sentence based on the trans-
portation conviction alone, the court calculated a guidelines
range of 135 to 168 months. Kennedy, the government, and
the Probation Office all agreed that a downward departure
was warranted. The court imposed the statutory minimum
sentence of 60 months. After discussing the seriousness of
Kennedy’s offense and his background and characteristics
(including a difficult childhood, addictions to child pornogra-
phy and illegal substances, and the fact that Kennedy had
twice violated the conditions of his pre-trial supervision), the
court also imposed a 15-year period of supervised release.
The special conditions of release included active participation
in “a certified sexual deviancy program,” participation in
plethysmograph testing “as determined by [the deviancy pro-
gram] therapist,” a ban on direct or indirect contact with
minors “unless accompanied and supervised” by an adult
approved by the therapist or probation officer, and a require-
6
A transportation conviction has a mandatory minimum sentence of 60
months. 18 U.S.C. § 2252(a)(1), (b)(1) (2006). In contrast, a possession
conviction has no mandatory minimum sentence. 18 U.S.C.
§ 2252A(a)(5)(B) (2006).
UNITED STATES v. KENNEDY 9177
ment that Kennedy have his place of residence “preapproved
by the probation officer.”
On April 21, 2010, the court held a hearing to consider
what amount of restitution to award under 18 U.S.C. § 22597
to two victims whose images had been found on Kennedy’s
7
Section 2259 states, in pertinent part:
(a) In General.— Notwithstanding section 3663 or 3663A, and in
addition to any other civil or criminal penalty authorized by law,
the court shall order restitution for any offense under this chapter.
(b) Scope and Nature of Order.—
(1) Directions.— The order of restitution under this section
shall direct the defendant to pay the victim (through the
appropriate court mechanism) the full amount of the victim’s
losses as determined by the court pursuant to paragraph (2).
(2) Enforcement.— An order of restitution under this section
shall be issued and enforced in accordance with section 3664
in the same manner as an order under section 3663A.
(3) Definition.— For purposes of this subsection, the term
“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;
(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.
...
(c) Definition.— 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.
9178 UNITED STATES v. KENNEDY
computer: “Amy” and “Vicky.” Amy and Vicky claimed
losses of $3 million and $227,000, respectively.
In support of her claim, Amy submitted a victim impact
statement, a psychological evaluation, and a report from the
Smith Economics Group calculating the value of “(1) the loss
of wages and employee benefits; (2) the present value of
future treatment and counseling costs; and (3) the reduction in
value of life . . . also known as loss of enjoyment of life.”
Amy’s victim impact statement explained that she was “a real
victim of child pornography” because the dissemination of the
images meant that she was “being exploited and used every
day and every night somewhere in the world by someone.”
Because of the pictures, “[w]hat happened to me hasn’t gone
away. It will never go away.” The psychological evaluation
confirmed that Amy had experienced “a resurgence of . . .
trauma” upon learning that the images were circulating on the
Internet: “[Amy] feels that her privacy has been invaded on
a fundamental level [and] fears the unknown and unnamed
people who continued to be looking at these pictures of her
for their own perverse interests or to ‘groom’ other children
into these acts.”
Vicky submitted a forensic psychological examination and
a printout from an online message board on which anonymous
users of child pornography were discussing images of her in
graphic detail. The psychological report included a lengthy
analysis of the effects of Vicky’s childhood sexual abuse.
Vicky reported being “stunned” when she was learned that
images of her abuse had been disseminated on the Internet,
and told her psychologist that she began “obsessively rumi-
nating about scenarios of males in her community having
viewed the videos.” She also started having night terrors and
panic attacks. In an undated victim impact statement, Vicky
wrote:
We now have in our house boxes full of victim notifica-
UNITED STATES v. KENNEDY 9179
tions[8] from cases all around the country involving
pornographic images of me. Practically every time
I’ve went to get the mail, there have been two or
three of these notifications. They are constant
reminders of the horrors of my childhood.
The psychological report also included an estimate of the
future costs of Vicky’s therapy. None of Amy or Vicky’s sub-
mitted materials mentioned the defendant Kennedy.
The government asked the court to order Kennedy to pay
“full restitution” to Amy and Vicky on a theory of “joint and
several liability” (i.e. $3 million for Amy and $227,000 for
Vicky) or, in the alternative, $1000 per image. Kennedy
responded that the government had failed to meet its burden
of proving the victims’ entitlement to any amount of restitu-
tion under 18 U.S.C. § 2259.
While agreeing with Kennedy that § 2259 “requires some
degree of causal connection between the victims’ losses and
the defendant’s conduct,” the court found the detail Amy and
Vicky provided in their communications sufficient to demon-
strate that connection. In particular, Amy and Vicky had
shown themselves to be “abundantly aware of [the] repeated
violations they experience, knowing their images involving
child pornography are played over and over again,” and the
expert evaluations confirmed that Amy and Vicky suffered
psychological damage from the knowledge that people were
viewing the images. Therefore, the court reasoned that Amy
and Vicky were “victims” of Kennedy’s offense and were
accordingly entitled to compensation.
8
The Child Victim Identification Program at the National Center for
Missing & Exploited Children (“NCMEC”) assists law enforcement in
identifying the victims of child pornography. When a law enforcement
agency submits copies of seized images, NCMEC returns a report identi-
fying the child victims depicted in them. NCMEC also notifies an identi-
fied victim every time someone is arrested who is found to possess his or
her image. See http://www.missingkids.com.
9180 UNITED STATES v. KENNEDY
Noting that “[t]he government and the defendant have each
posited recommended amounts of restitution ranging from
zero by the defendant to the full amount suggested by the
government,” the court stated that it believed that the “amount
of $1,000 per image” was “reasonable.” The district court
therefore entered an order directing Kennedy to pay $17,000
to Amy (for the 17 images of her Kennedy had on his com-
puter) and $48,000 to Vicky (for the 48 images of her Ken-
nedy had on his computer).
II
On appeal, Kennedy argues that the district court erred in
admitting the testimony of the five law enforcement officers,
abused its discretion in choosing to vacate his possession con-
viction rather than his transportation conviction,9 abused its
discretion in imposing a 15-year period of supervised release,
and erred in ordering restitution under 18 U.S.C. § 2259. We
address each argument in turn.
A
Kennedy’s first claim is that the district court erred in
admitting the testimony of the five law enforcement officers
because the officers’ testimony was unduly prejudicial, and
the district court failed to consider less prejudicial evidentiary
alternatives. The government sought to introduce these wit-
nesses to testify to three elements: that the individuals
depicted in the images were minors and real persons rather
than computer simulations (elements of both the possession
9
Although Kennedy also argues that the district court erred in applying
a 5-level adjustment to his guidelines offense level pursuant to U.S.S.G.
§ 2G2.2(b)(7)(D), he has asked us to consider this argument only if we
remand for re-sentencing on the ground that the district court erred in
vacating the possession conviction rather than the transportation convic-
tion. Because we hold that the district court did not err in choosing to
vacate the possession conviction, see infra, we do not address Kennedy’s
guidelines argument.
UNITED STATES v. KENNEDY 9181
and transportation counts, see 18 U.S.C. §§ 2252A(a)(5)(B),
2252(a)(1), 2256 (2006)), and that the images “ha[d] been
mailed, or shipped or transported in interstate or foreign com-
merce by any means” (an element of the possession count, see
§ 2252A(a)(5)(B) (2006)).
We review a trial court’s evidentiary rulings for abuse of
discretion. See United States v. Higuera-Llamos, 574 F.3d
1206, 1209 (9th Cir. 2009). While a trial court is to be given
“ ‘wide latitude’ when it balances the prejudicial effect of
proffered evidence against its probative value” under Rule
403, id. (quoting United States v. Spencer, 1 F.3d 742, 744
(9th Cir. 1993)), “sound judicial discretion” requires the
court, in assessing the probative value of challenged evidence,
to take into account the availability of alternative evidence
with “substantially the same or greater probative value but a
lower danger of unfair prejudice,” Old Chief v. United States,
519 U.S. 172, 183 (1997).
[1] Kennedy argues that the district court erred in admit-
ting the officers’ testimony, given Kennedy’s offer not to dis-
pute that the individuals depicted in the images were minors
and real people, and the availability of other evidence such as
the testimony from the government’s expert witness (a nurse
practitioner) as to the probable ages of the individuals
depicted in the images, and the images themselves. Kennedy’s
argument fails because neither his offer not to dispute that the
minors were real people, nor the other evidence provides
“substantially the same or greater probative value” as the offi-
cers’ testimony. Id. at 183. Kennedy’s offer to refrain from
disputing whether the individuals in the images were minors
and real people is not equivalent to an affirmative stipulation
that they were, and so his offer did not relieve the government
of its burden of proving those facts beyond a reasonable
doubt. United States v. Salcido, 506 F.3d 729, 733 (9th Cir.
2007) (per curiam). Moreover, the testimony of officers who
had met the victims and could authenticate their birth certifi-
cates was more probative on the question whether the victims
9182 UNITED STATES v. KENNEDY
were minors and real people than was the testimony of the
nurse practitioner or the mere introduction of the images
themselves. Further, neither Kennedy’s offer to refrain from
disputing the government’s evidence, nor the testimony of the
nurse practitioner, eliminated the government’s burden to
prove that the images had moved through interstate com-
merce, an element of the possession offense. Because Kenne-
dy’s offer not to dispute certain facts and the proposed
alternative methods of proof were not true evidentiary alterna-
tives to the law enforcement officers’ testimony, the district
court did not err in refusing to discount the probative value of
that testimony. See United States v. Ganoe, 538 F.3d 1117,
1124 (9th Cir. 2008).
[2] Kennedy also argues that the challenged testimony was
unduly prejudicial because it “was offered to invoke an emo-
tional response from the jury.” Again, we disagree. The testi-
mony of each witness followed the same pattern: First, the
officer described his or her involvement in an investigation
regarding the sexual abuse of a particular minor victim. Sec-
ond, the witness identified the location where that abuse was
determined to have taken place. Third, the witness stated
whether he or she had met the victim and the victim’s age at
that time, with four of the five witnesses also authenticating
the victim’s birth certificate. Finally, the witness was shown
one or more images from Kennedy’s computer and identified
each image as being of the minor child in question (either by
recognizing the victim or by recognizing distinctive items in
the image, such as a chair or bedspread). The prosecution then
offered the relevant images in evidence. The testimony of
each witness was brief and narrowly focused on relevant
issues. While any evidence relating to the sexual abuse of
children is likely to stir emotion, the testimony of these partic-
ular witnesses was hardly calculated to inflame the jury. Rule
403 does not require a trial court to “scrub the trial clean of
all evidence that may have an emotional impact.” Ganoe, 538
F.3d at 1123-24 (quoting United States v. Morales-
UNITED STATES v. KENNEDY 9183
Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008)) (internal quo-
tation mark omitted).10
[3] We therefore hold that the district court did not abuse
its discretion in admitting the testimony of the five law
enforcement officers.
B
[4] We next turn to Kennedy’s argument that the district
court abused its discretion in choosing to vacate his convic-
tion for possession of child pornography, in violation of 18
U.S.C. § 2252A(a)(5)(B) (2006), rather than his conviction
for transportation of child pornography, in violation of 18
U.S.C. § 2252(a)(1) (2006). At sentencing, the district court
determined that the Double Jeopardy Clause prohibits a
defendant from being convicted and sentenced for both pos-
session and transportation of the same images of child pornogra-
phy.11 The district court was therefore obliged to exercise its
10
Kennedy also complains that the law enforcement witnesses’ testi-
mony included two irrelevant facts: first, that NCMEC had a record of the
photos of one of the victims, and second, that two of the abusers were the
victims’ fathers. Because Kennedy did not object to these statements on
relevance grounds at trial, we review only for plain error. See United
States v. Graf, 610 F.3d 1148, 1164 (9th Cir. 2010). We hold that the dis-
trict court did not plainly err in failing to sua sponte strike these remarks.
See United States v. Mitchell, 502 F.3d 931, 968 (9th Cir. 2007). More-
over, any error would be harmless, because it is not “highly probable” that
such stray remarks, unrelated to Kennedy, “materially affected the [jury’s]
verdict.” United States v. Chang, 207 F.3d 1169, 1175 (9th Cir. 2000)
(quoting United States v. Kessi, 868 F.2d 1097, 1103 (9th Cir. 1989)); cf.
United States v. Chu, 5 F.3d 1244, 1250 (9th Cir. 1993) (holding that the
admission of an irrelevant statement about a “crime syndicate” was harm-
less because the testimony did not suggest that the defendant was a “mem-
ber of the syndicate”).
11
In reaching this conclusion, the district court relied on United States
v. Davenport, 519 F.3d 940 (9th Cir. 2008), in which we held that posses-
sion of child pornography, § 2252A(a)(5)(B), is a lesser-included offense
of receipt of child pornography, § 2252A(a)(2), because the crime of pos-
9184 UNITED STATES v. KENNEDY
discretion to vacate one of the two convictions. See United
States v. Hector, 577 F.3d 1099, 1101, 1103 (9th Cir. 2009).
We have held that, in deciding whether to vacate a lesser-
included offense or a greater offense, a district court should
be guided by the sentencing factors set forth in 18 U.S.C.
§ 3553(a), and “ ‘should’ exercise its discretion to vacate the
lesser-included offense, absent unusual circumstances and
compelling reasons to vacate the greater offense.” United
States v. Maier, 639 F.3d 927, 932-33 (9th Cir. 2011) (citing
United States v. Jose, 425 F.3d 1237, 1247 (9th Cir. 2005)).
[5] The district court did not have the benefit of our deci-
sion in United States v. Maier when it imposed Kennedy’s
sentence. While the court did not explicitly mention the
§ 3553(a) sentencing factors in explaining its decision to
vacate Kennedy’s possession conviction, it nevertheless con-
sidered the relevant factors. The district court’s reasoning that
Kennedy was clearly guilty of the more serious transportation
offense, that a court should not impose a shorter sentence
solely because the government chose to charge both a graver
and a less serious offense, and that Congress intended courts
to impose the longer sentence for Kennedy’s offense conduct,
demonstrated “an acknowledgment of the need for a sentence
‘to reflect the seriousness of the offense’ and ‘provide just
punishment’ for it,” as well as “the need ‘to afford adequate
deterrence to criminal conduct.’ ” Id. at 933 (quoting 18
U.S.C. § 3553(a)(2)(A), (B)). The district court’s reasoning
also reflected the court’s recognition of the need for Kenne-
dy’s sentence to “promote respect for the law.” 18 U.S.C.
§ 3553(a)(2)(A). On appeal, Kennedy has failed to present
session does not “require[ ] proof of an element that the crime of receipt
does not.” 519 F.3d at 945 (emphasis omitted). Although we have not held
that possession of child pornography is a lesser-included offense of trans-
portation of child pornography, the government has not appealed this
determination, and therefore we need not reach the issue here; rather, we
assume for purposes of this appeal that the district court’s analysis was
correct.
UNITED STATES v. KENNEDY 9185
any “unusual circumstances and compelling reasons” why the
district court should instead have vacated the transportation
conviction. Id. at 932. In other words, the district court’s exer-
cise of discretion was consistent with our holding in Maier.
We therefore affirm its decision to vacate Kennedy’s posses-
sion conviction.
C
[6] Kennedy next argues that the district court failed to
adequately justify its imposition of a 15-year period of super-
vised release and that the length and conditions of release
were substantively unreasonable.12 We give considerable def-
erence to a district court’s decisions regarding supervised
release because the district court has “at its disposal all of the
evidence, [as well as] its own impression of [the] defendant,”
when making those decisions. United States v. Stoterau, 524
F.3d 988, 1002 (9th Cir. 2008) (quoting United States v.
Weber, 451 F.3d 552, 557 (9th Cir. 2006)). In this case, the
court had before it the pre-sentence report, the evidence
adduced at trial, a report from a sexual deviancy evaluator,
letters of support from Kennedy’s family, and Kennedy’s own
statements at sentencing. In reaching its decision to impose a
15-year period of supervision, the court clearly considered
this evidence in light of the relevant factors, including the
serious nature of Kennedy’s offense, his need for rehabilita-
tion from his child pornography and substance addictions, and
his background and characteristics (including the fact that he
had twice violated the conditions of his pre-trial supervision).
See 18 U.S.C. § 3553(a). We therefore hold that the district
court adequately justified its decision, see United States v.
Autery, 555 F.3d 864, 871-72 (9th Cir. 2009), and affirm the
duration of Kennedy’s supervised release as substantively rea-
sonable, see id. at 871.
12
The district court was required to impose a period of supervision rang-
ing from 60 months to life. See 18 U.S.C. § 3583(k) (2006).
9186 UNITED STATES v. KENNEDY
[7] We likewise conclude that the special conditions of
release are reasonable. A court has wide discretion to fashion
special conditions so long as they are “reasonably related” to
the goals of supervised release, § 3553(a)(2)(B)-(D), and
involve “no greater deprivation of liberty than is reasonably
necessary,” § 3583(d)(2). Kennedy argues that the special
conditions imposed on him will result in a “greater depriva-
tion of liberty” than is necessary to achieve those goals. Ken-
nedy is mistaken; the court went to great lengths to tailor the
special conditions of release to Kennedy’s situation, such as
limiting his participation in plethysmograph testing to only
such times as are “determined by [his] therapist” to be neces-
sary, and including an exception in the ban on contact with
minors for when Kennedy is “accompanied and supervised”
by an adult approved by the therapist or probation officer.
Moreover, because the ban on contact with minors and the
residency restrictions are reasonably related to the deterrent
and public protection goals of supervised release, see
§ 3553(a)(2)(B)-(D), as well as the goal of rehabilitation, we
see no error in the district court’s decision to impose those
conditions for the full term of supervised release rather than
for just the duration of Kennedy’s sexual deviancy treatment.
D
Kennedy’s final argument is that the district court’s restitu-
tion order was unlawful under 18 U.S.C. § 2259 because the
government failed to prove, by a preponderance of the evi-
dence, the measure of the losses to Amy and Vicky that were
proximately caused by Kennedy’s offense. This argument
requires us to consider what constitutes a sufficient chain of
causation between the defendant’s offense conduct and the
victims’ losses to justify an award of restitution under § 2259.
This difficult issue of statutory interpretation has been consid-
ered, but not satisfactorily resolved, by several of our sister
circuits. See United States v. Monzel, ___ F.3d ___, 2011 WL
1466365 (D.C. Cir. 2011); In re Amy Unknown, 636 F.3d 190
UNITED STATES v. KENNEDY 9187
(5th Cir. 2011); United States v. McDaniel, 631 F.3d 1204
(11th Cir. 2011).
1
We begin by outlining the relevant requirements of 18
U.S.C. § 2259. Because “[f]ederal courts have no inherent
power to award restitution,” we may order restitution only
when and to the extent authorized by statute. United States v.
Gossi, 608 F.3d 574, 577 (9th Cir. 2010) (quoting United
States v. Follet, 269 F.3d 996, 998 (9th Cir. 2001)) (internal
quotation marks omitted). Whether an order of restitution falls
“within the bounds of the [relevant] statutory framework” is
a question of law that we review de novo. United States v.
Lazarenko, 624 F.3d 1247, 1249 (9th Cir. 2010) (quoting
United States v. Marks, 530 F.3d 799, 811 (9th Cir. 2008)).
[8] Section 2259 makes restitution “mandatory” for
offenses involving sexual exploitation and other abuse of chil-
dren. See § 2259(a), (b)(4). The order of restitution must “di-
rect the defendant to pay the victim . . . the full amount of the
victim’s losses.” § 2259(b)(1). The statute provides defini-
tions of these key terms. It defines the word “victim” as “the
individual harmed as a result of a commission of a crime
under this chapter.” § 2259(c). Because a victim must be
“harmed as a result of” the defendant’s criminal conduct, this
language implies that the government must establish a causal
connection between the defendant’s offense and the harm to
the victim. Courts have identified several ways in which the
individuals depicted in images of child pornography are
harmed by the circulation and viewing of those images. See
New York v. Ferber, 458 U.S. 747, 759 (1982) (explaining
that the suffering of victims of childhood sexual abuse is “ex-
acerbated by [the] circulation” and viewing of images docu-
menting that abuse). These injuries include “the emotional
and psychic” pain of knowing that the images are being
viewed, id. at 759 n.10, as well as the repeated violations of
the individual’s privacy interests, id. at 758 n.9. See also Ash-
9188 UNITED STATES v. KENNEDY
croft v. Free Speech Coal., 535 U.S. 234, 249 (2002) (“Like
a defamatory statement, each new publication [of the images]
. . . cause[s] new injury to the child’s reputation and well-
being.”). In the sentencing context, we have likewise held that
the minors depicted in child pornography should be consid-
ered the “victims” of a defendant who possesses or trades in
images of their abuse. See United States v. Blinkinsop, 606
F.3d 1110, 1117-18 (9th Cir. 2010); United States v. Boos,
127 F.3d 1207, 1210-11 (9th Cir. 1997).
[9] The statute also defines the “full amount of the victim’s
losses”:
(3) Definition.— For purposes of this subsection, the
term “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;
(B) physical and occupational therapy or rehabilita-
tion;
(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 prox-
imate result of the offense.
18 U.S.C. § 2259(b)(3). We have interpreted this language as
allowing restitution only for losses that were “proximately”
caused by the defendant’s conduct. See United States v.
Laney, 189 F.3d 954, 965 (9th Cir. 1999) (holding, based
UNITED STATES v. KENNEDY 9189
partly on the “proximate result” language in § 2259(b)(3)(F),
that § 2259 “incorporates a requirement of proximate causa-
tion”).13
[10] Finally, § 2259 states that the order of restitution is to
“be issued and enforced in accordance with section 3664 in
the same manner as an order under section 3663A.”14 18
U.S.C. § 2259(b)(2). Section 3664 provides that the burden of
proving the amount of the victim’s losses is on the govern-
ment. 18 U.S.C. § 3664(e). In carrying this burden, we have
held that the government must provide the court with enough
evidence to allow the court to estimate the “full amount of the
victim’s losses” with “some reasonable certainty.” United
States v. Doe, 488 F.3d 1154, 1159-60 (9th Cir. 2007). While
this is not a requirement “approaching mathematical preci-
sion,” id. at 1160, a restitutionary award under § 2259 will be
improper if the district court must “engage in . . . arbitrary
calculations” to determine the amount of the victim’s losses,
Laney, 189 F.3d at 967 n.14.
[11] In ruling that courts may order restitution under
13
Since our decision in Laney, a circuit split has developed as to
whether § 2259 requires proximate cause as to all the types of losses
described in § 2259(b)(3), or only as to “any other losses suffered by the
victim as a proximate result of the offense,” § 2259(b)(3)(F). The Third
Circuit, Eleventh Circuit, and D.C. Circuit have agreed with us that resti-
tution under § 2259 is limited to losses proximately caused by the defen-
dant’s offense. See United States v. Crandon, 173 F.3d 122, 125-26 (3d
Cir. 1999); McDaniel, 631 F.3d at 1208; Monzel, 2011 WL 1466365, at
*5. Only the Fifth Circuit has limited the proximate cause requirement to
the catchall category of “other losses” listed in § 2259(b)(3)(F). See In re
Amy Unknown, 636 F.3d at 198. We are bound by Laney and thus have
no occasion to revisit this question.
14
Section 3664 was enacted as part of the Victim and Witness Protec-
tion Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248, and sets forth a proce-
dure for ordering restitution. Section 3663A, which is part of the
Mandatory Victims Restitution Act of 1996, Pub. L. No. 104-132,
§§ 201-211, 110 Stat. 1227, also incorporates the procedural guidelines of
§ 3664.
9190 UNITED STATES v. KENNEDY
§ 2259 only for losses proximately caused by the defendant’s
offense, Laney did not provide a framework for determining
the scope of this proximate cause limitation. However, we
have frequently considered proximate causation in interpret-
ing other statutory restitution schemes, specifically the Victim
and Witness Protection Act of 1982 (VWPA), 18 U.S.C.
§§ 1512-1515, 3663-3664, and the Mandatory Victims Resti-
tution Act of 1996 (MVRA), 18 U.S.C. §§ 3663A, 3613A.15
Because both statutes define a “victim” as “a person directly
and proximately harmed as a result of the commission of an
offense for which restitution may be ordered,” §§ 3663(a)(2),
3663A(a)(2), we have held that restitution under these statutes
may be awarded only for losses for which the defendant’s
conduct was an “actual and proximate cause.” United States
v. Peterson, 538 F.3d 1064, 1068 (9th Cir. 2008); see also
United States v. Hackett, 311 F.3d 989, 993 (9th Cir. 2002)
(stating that the loss must be “directly related to the defen-
dant’s conduct” (quoting United States v. Gamma Tech
Indus., Inc., 265 F.3d 917, 928 (9th Cir. 2001))). As noted
above, we have similarly interpreted the text of § 2259 as
making defendants liable only for losses sustained as a proxi-
mate result of their criminal offenses. See Laney, 189 F.3d at
965. Given that § 2259(b)(2) requires courts to look to the
VWPA and the MVRA for direction in issuing and enforcing
an order of restitution under § 2259, see 18 U.S.C.
§ 2259(b)(2), and in light of the similar restitutionary purpose
of all three statutes, we conclude that our case law on proxi-
mate cause in the context of the VWPA and the MVRA may
properly inform our analysis of the appropriate standard for
awards of restitution under § 2259.
In determining what constitutes proximate cause under the
VWPA and MVRA, we have attempted to steer a middle
15
The VWPA and the MVRA “are identical in all important respects,
and courts interpreting the MVRA may look to and rely on cases interpret-
ing the VWPA as precedent.” United States v. Gordon, 393 F.3d 1044,
1048 (9th Cir. 2004).
UNITED STATES v. KENNEDY 9191
course, one that avoids imposing liability on defendants
whose conduct is too remote from or too tangential to a vic-
tim’s specific losses, while still ensuring that defendants pay
restitution for the losses to which their offense conduct con-
tributed. Thus, we have reversed restitutionary awards where
there was an intervening cause, unrelated to the defendant’s
offense, between the defendant’s offense and the victim’s spe-
cific loss. In United States v. Meksian, 170 F.3d 1260 (9th
Cir. 1999), for example, we held that a defendant who had
submitted a fraudulent loan application to a bank did not need
to pay restitution for the bank’s loss of the entire value of the
property securing the loan, because that loss was attributable
to an inaccurate environmental report, not to any misrepresen-
tation by the defendant. See id. at 1263. Similarly, we have
held that “[r]estitution is not available for consequential
losses, or other losses too remote from the offense of convic-
tion,” such as attorney’s fees, wages for trial witnesses, or
profits from lost corporate opportunities. United States v.
Rodrigues, 229 F.3d 842, 845 (9th Cir. 2000) (citation omit-
ted) (citing cases).
On the other hand, “we have approved restitution awards
that included losses at least one step removed from the
offense conduct itself,” Gamma Tech, 265 F.3d at 928, so
long as the intervening cause was “directly related to the
offense conduct,” Meksian, 170 F.3d at 1263. See also United
States v. Keith, 754 F.2d 1388, 1393 (9th Cir. 1985). Thus in
Gamma Tech, we upheld a restitutionary award to a Navy
contractor whose employee had obtained kickbacks from sub-
contractors hired for Navy jobs; we concluded that the con-
tractor’s lost profits due to inflated payments to those
subcontractors were directly related to the offense conduct,
the payment of the kickbacks. See 265 F.3d at 928. Moreover,
even where factors other than the defendant’s conduct con-
tributed to a specific loss, a defendant may be held liable for
restitution so long as the defendant’s conduct was a “material
and proximate cause” of the loss. See Peterson, 538 F.3d at
1076 (quoting United States v. Spicer, 57 F.3d 1152, 1159
9192 UNITED STATES v. KENNEDY
(D.C. Cir. 1995)); see also Doe, 488 F.3d at 1160 (stating that
the government need not show “that a defendant’s conduct
was the sole and total cause of a victim’s loss,” so long as
“the additional strain or trauma stemming from [defendant’s]
actions was a substantial factor” in causing that loss (quoting
Crandon, 173 F.3d at 126)).
[12] Applying this guidance in the § 2259 context, we con-
clude that for purposes of determining proximate cause, a
court must identify a causal connection between the defen-
dant’s offense conduct and the victim’s specific losses. There
may be “multiple links in the causal chain,” Peterson, 538
F.3d at 1075, but the chain “may not extend so far, in terms
of the facts or the time span, as to become unreasonable,”
Gamma Tech, 265 F.3d at 928. Although the “[d]efendant’s
conduct need not be the sole cause of the loss,” Peterson, 538
F.3d at 1075 (quoting Gamma Tech, 265 F.3d at 928), it must
be a “material and proximate cause,” id. at 1076 (quoting
Spicer, 57 F.3d at 1159), and “any subsequent action that con-
tributes to the loss, such as an intervening cause, must be
directly related to the defendant’s conduct,” Gamma Tech,
265 F.3d at 928.
[13] Accordingly, in order to award restitution under
§ 2259(b)(1), a district court must make three determinations:
(1) that the individual seeking restitution is a “victim” of the
defendant’s offense, § 2259(b)(1), (c); (2) that the defendant’s
offense was a proximate cause of the victim’s losses, see
Laney, 189 F.3d at 965, pursuant to the guidance discussed
above from our VWPA and MVRA precedents; and (3) that
the losses so caused can be calculated with “some reasonable
certainty,” see Doe, 488 F.3d at 1160.
2
[14] Applying this framework to the case at hand, we
begin with the question whether Amy and Vicky are “vic-
tims” for purposes of § 2259. We agree with the district court
UNITED STATES v. KENNEDY 9193
that they are. Amy and Vicky presented ample evidence that
the viewing of their images caused them emotional and psy-
chic pain, violated their privacy interests, and injured their
reputation and well-being. See Ferber, 458 U.S. at 759 &
n.10; Free Speech Coal., 535 U.S. at 249. Amy, for example,
stated that her “privacy ha[d] been invaded” and that she felt
like she was “being exploited and used every day and every
night.” Vicky described having night terrors and panic attacks
due to the knowledge that her images were being viewed
online. Even without evidence that Amy and Vicky knew
about Kennedy’s conduct, the district court could reasonably
conclude that Amy and Vicky were “harmed as a result of”
Kennedy’s participation in the audience of individuals who
viewed the images. See § 2259(c). We therefore hold that
Amy and Vicky are “victims” of Kennedy’s offense.
The second step of the restitution analysis demands a closer
causal connection. At this step, the government must prove by
a preponderance of the evidence that Kennedy’s offenses
proximately caused the losses incurred by Amy and Vicky.
See Laney, 189 F.3d at 965. As explained above, although the
government need not prove that Kennedy’s conduct was the
sole cause of the victims’ losses, it must prove that his con-
duct was a “material and proximate cause” of those losses.
Peterson, 538 F.3d at 1076 (quoting Spicer, 57 F.3d at 1159).
Likewise, while there may be intervening links in the chain
between Kennedy’s conduct and the victims’ losses, such
links must be related to Kennedy’s conduct. See Gamma
Tech, 265 F.3d at 928.
[15] The government has not carried its burden here,
because it has not introduced any evidence establishing a
causal chain between Kennedy’s conduct and the specific
losses incurred by Amy and Vicky. The government did not
show how Kennedy’s actions in transporting the images
caused Amy’s lost income and loss of enjoyment of life or
Amy and Vicky’s future counseling costs. Nor did the govern-
ment introduce evidence that Amy and Vicky could have
9194 UNITED STATES v. KENNEDY
avoided certain losses had Kennedy not transported the
images. Indeed, the government introduced no evidence that
Amy and Vicky were even aware of Kennedy’s conduct. By
contrast, in United States v. McDaniel, the government estab-
lished proximate cause through evidence that: (1) NCMEC
had notified the victim that the defendant possessed her
image, (2) the victim suffered when she received such notices,
and (3) this suffering necessitated further therapy, a cost rec-
ognized under § 2259(b)(3)(A). 631 F.3d at 1207, 1209.
Rather than proving a causal relationship between Kenne-
dy’s actions and the victims’ losses, the government’s evi-
dence showed only that Kennedy participated in the audience
of persons who viewed the images of Amy and Vicky. While
this may be sufficient to establish that Kennedy’s actions
were one cause of the generalized harm Amy and Vicky suf-
fered due to the circulation of their images on the internet, it
is not sufficient to show that they were a proximate cause of
any particular losses. Indeed, we have found no case in this
circuit (and the government has cited none) in which a rela-
tionship as remote as that between Kennedy’s conduct and the
victims’ losses in this case was held sufficient for an award
of restitution.
Under certain circumstances, we have upheld restitutionary
awards under the VWPA and MVRA when the defendant’s
offense was merely one part of a larger problem that caused
the victim’s losses. In those cases, however, we placed great
weight on the evidence establishing that the defendant’s con-
duct directly contributed to the claimed losses. Thus, in Peter-
son, we upheld a restitutionary award for the government’s
losses stemming from foreclosures on 43 homes that individ-
ual buyers had purchased with the help of the defendants’
fraudulent real estate scheme. See Peterson, 538 F.3d at 1077.
Although the defendants argued that the foreclosures (and
thus the government’s losses) were caused by the buyers’
unrelated financial difficulties, we focused on evidence estab-
lishing that the government would not have incurred such
UNITED STATES v. KENNEDY 9195
losses if defendants’ fraud had not allowed the buyers to pur-
chase the houses in the first place. See id. Similarly, in United
States v. De La Fuente, 353 F.3d 766 (9th Cir. 2003), we held
a defendant liable for the full costs of evacuating and decon-
taminating a post office because the defendant’s conduct of
depositing two threatening letters containing a white powder
into the mail “led directly to the possible anthrax exposure in
a USPS mail processing center,” which in turn led to the
cleanup and decontamination effort. Id. at 773. The record
before the district court in this case does not establish a simi-
lar causal relationship; indeed, the record did not include any
evidence that Kennedy’s conduct contributed to Amy and
Vicky’s claimed losses at all.
In short, the government here did not prove the existence
of any causal connection between Kennedy’s offense and
Amy and Vicky’s specific losses, let alone prove that Kenne-
dy’s offense was a “material and proximate cause” of those
losses. Because the government failed to establish that the
victims’ losses were proximately caused by Kennedy’s
offense, it did not meet the second requirement of a restitution
award under § 2259.
[16] For much the same reason, the government also failed
at the third step to offer a method for calculating the amount
of Amy and Vicky’s losses that were proximately caused by
Kennedy’s conduct. Here the government presented evidence
of the total costs incurred (or to be incurred) by Amy and
Vicky as a result of both the original sexual abuse and all sub-
sequent circulation and viewing of the images. The govern-
ment then asked the district court to award “$1000 per
image,” but provided no basis for such an award. Although
the district court agreed that this seemed like a “reasonable”
amount, it did not indicate how it determined that figure was
the “full amount of [Amy and Vicky’s] losses.” The govern-
ment contends that the court’s attempt to make a “reasonable”
guess should be enough, because the harm caused by one pos-
sessor of child pornography is not “easily divisible from the
9196 UNITED STATES v. KENNEDY
harm caused by [all] others.” While we acknowledge the diffi-
culties, they do not excuse non-compliance with the statute.
Here, the district court’s inability to calculate the loss attribut-
able to Kennedy’s offense is due to the government’s failure
to introduce evidence of such a loss (such as evidence that
Kennedy’s conduct led to Amy and Vicky needing additional
therapy sessions or missing days at work, see United States v.
Church, 701 F. Supp. 2d 814, 833 (W.D. Va. 2010)). Had the
government provided such evidence, the district court could
have calculated the amount of that loss without great diffi-
culty. But picking a “reasonable” number without any expla-
nation is precisely the kind of arbitrary calculation we
rejected in Laney and Doe. Laney, 189 F.3d at 967 n.14; see
Doe, 488 F.3d at 1160 (requiring that the amount of the loss
attributable to the defendant be calculable with “some reason-
able certainty”). Section 2259 does not authorize such arbi-
trary awards.
The government’s alternative argument before the district
court, that Kennedy should be directed to pay the total losses
claimed by Amy and Vicky under the theory of “joint and
several liability,” founders on the same failure of proof. If the
government had proven a causal relationship between Kenne-
dy’s conduct and the victims’ losses, Kennedy could have
been held liable (or jointly and severally liable) for all the
losses he proximately caused, even if other defendants had
also contributed to those same losses. See § 3664(h) (provid-
ing that a court may use joint and several liability to “make
each defendant liable for payment of the full amount of resti-
tution” where it has found that “more than 1 defendant has
contributed to the loss of a victim”); see also Laney, 189 F.3d
at 958. But the predicate for applying this rule is that the gov-
ernment has carried its burden of proving that the defendant’s
offense conduct proximately caused and contributed to the
loss. For the reasons explained above, the government has not
done so here. The doctrine of joint and several liability cannot
be used to cure a failure of proof on the causal relation
between a defendant’s conduct and the victims’ losses. More-
UNITED STATES v. KENNEDY 9197
over, because Amy and Vicky have already recovered part of
their claimed losses of $3 million and $227,000 from other
defendants, ordering Kennedy to pay this entire amount
would have been inconsistent with the goal of restitution,
which is to allow a victim to recover for his or her “actual
losses,” not more. See United States v. Bussell, 504 F.3d 956,
964 (9th Cir. 2007).
3
We acknowledge the difficulty the government may have
in establishing the proper amount of restitution in cases
involving offenses such as possession, receipt, or transporta-
tion. Although our sister circuits have also struggled with this
issue, no court has yet developed a method for calculating a
restitutionary award under § 2259 that comports with the stat-
utory language. In McDaniel, for example, the record estab-
lished that the victim “would need approximately $166,000 to
$188,000 of future counseling or therapy” as a result of the
original abuse and all past and future distribution and posses-
sion of the images, but did not provide a mechanism by which
a court could allocate this loss among all potential defendants.
631 F.3d at 1207-09. Nevertheless, the Eleventh Circuit
upheld the district court’s award of $12,700 without explain-
ing how the district court could have calculated this amount
as the value of the losses proximately caused by the defen-
dant’s conduct. Similarly, in Monzel, the D.C. Circuit held
that the district court erred in awarding restitution based on
the evidence the government had provided and remanded to
the district court to calculate “anew the amount of Amy’s
losses attributable to [the defendant’s] offense.” 2011 WL
1466365, at *9. But it provided no guidance regarding how
this calculation was to be conducted, instead merely advising
the district court that it might “order the government to sug-
gest a formula for determining the proper amount of restitu-
tion” that would account for the fact that “the [total] number
of offenders [is] impossible to pinpoint.” Id.
As shown by these cases, identifying a method for impos-
ing restitution on defendants convicted of possession, receipt,
9198 UNITED STATES v. KENNEDY
or transportation offenses is not easy. The underlying problem
is the structure established by § 2259: it is a poor fit for these
types of offenses. While direct evidence of a proximate loss,
such as evidence that “after receiving notification of the
[d]efendant’s offense, the victim had to attend any additional
therapy sessions [or] miss any days of work,” Church, 701 F.
Supp. 2d at 833, would be sufficient, it is likely to be a rare
case where the government can directly link one defendant’s
viewing of an image to a particular cost incurred by the vic-
tim. While we do not rule out the possibility that the govern-
ment could devise a formula by which a victim’s aggregate
losses could be reasonably divided (for example, by develop-
ing a reasonable estimate of the number of defendants that
will be prosecuted for similar offenses over the victim’s life-
time, and dividing the total loss by that amount), we suspect
that § 2259’s proximate cause and reasonable calculation
requirements will continue to present serious obstacles for
victims seeking restitution in these sorts of cases. Neverthe-
less, the responsibility lies with Congress, not the courts, to
develop a scheme to ensure that defendants such as Kennedy
are held liable for the harms they cause through their partici-
pation in the market for child pornography. In the future, Con-
gress may decide to reconsider whether § 2259 is the best
system for compensating the victims of child pornography
offenses, or whether statutory damages of a fixed amount per
image or payments into a general fund for victims would
achieve its policy goals more effectively.
[17] Until Congress makes such a change, we remain
bound by the language of the statute and our precedent.
Because the district court’s restitution order directed Kennedy
to pay for losses that the government did not prove were prox-
imately caused by his offense, the order was unlawful under
§ 2259 and must be vacated. On this issue, we remand to the
district court for proceedings consistent with this opinion. In
all other respects, Kennedy’s conviction and sentence are
affirmed.
AFFIRMED in part and VACATED in part.