United States v. Kearney

United States Court of Appeals
For the First Circuit

No. 10-2434

UNITED STATES,

Appellee,

v.

T. PATRICK KEARNEY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Rheba Rutkowski, Assistant Federal Public Defender, for
appellant.
Cynthia A. Young, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

February 29, 2012

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 LYNCH, Chief Judge. T. Patrick Kearney appeals from a

plea of guilty to seventeen counts of transportation, distribution,

and possession of child pornography, which he did through use of

the internet. His appeal raises two important issues we have not

addressed before.

Since the IP address Kearney used to accomplish his

crimes was a "dynamic" and not a "static" one, he contends the

affidavit in support of the search warrant was not adequate. Even

accounting for that difference, we hold that the affidavit was

adequate and there was no error in the denial of the motion to

suppress. The second issue, which has divided the circuits,

concerns the standards for an award of statutory restitution under

18 U.S.C. § 2259 to the victim, as well as the propriety of the

$3,800 amount ordered as restitution. The victim was, as a minor,

the subject of the pornographic videos taken by her father. The

defendant possessed, transported, and redistributed those images to

others. We also find no error in the restitution award.

I.

The FBI, state, and local law enforcement agencies

regularly conduct undercover operations to target individuals who

use telecommunications to transmit and receive child pornography or

to lure children into sexual relationships. In May 2008, Nathan

Kesterson, an internet crimes investigator of the Lexington,

Virginia, police department, began communications over the internet

-2-
with an individual while posing as a fourteen-year-old female named

"Julie." The website on which the communications occurred was

chat-avenue.com, styled as a teen-only chat room. Kesterson

communicated with a person who was identified, at this point, only

by the screen name "padraigh8," and who claimed to be a twenty-

eight-year-old male from Massachusetts. These communications

continued, on ten separate occasions, through May and June, and

padraigh8 utilized Yahoo! messenger on some of these occasions.

During several of the conversations, padraigh8 sent to "Julie"

child pornography videos and photographs. Kesterson was able to

identify padraigh8's MySpace page and ID number, because the

MySpace page bore the same name as the Yahoo! account: "padraigh8."

Kesterson contacted the FBI's Boston office about

padraigh8 on May 12, 2008. The FBI assigned the case to Special

Agent Jennifer Weidlich, who then served subpoenas on Yahoo! and

MySpace in an attempt to determine the identity of padraigh8. The

descriptions of the responses to these subpoenas set forth in

Weidlich's affidavit in support of the application for a search

warrant are at the heart of Kearney's Fourth Amendment claim.

The first subpoena was served on MySpace on May 22, 2008,

and requested account and internet protocol (IP) address1

1
"An IP address is the unique address assigned to every
machine on the internet. An IP address consists of four numbers
separated by dots, e.g., 166.132.78.215." United States v.
Vázquez-Rivera, 665 F.3d 351, 354 n.5 (1st Cir. 2011) (quoting In
re Pharmatrak, Inc., 329 F.3d 9, 13 n.1 (1st Cir. 2003)).

-3-
information associated with the padraigh8 MySpace page. MySpace

responded, stating that the subscriber created this account on

August 23, 2007, using IP address 68.116.165.4. The name of the

subscriber was listed as "Padraigh NoName," with an address in

Westborough, Massachusetts, and an email address of

padraigh9@hotmail.com. IP log records showed that the user signed

onto this MySpace account from IP address 68.116.165.4 "multiple

times between" August 23, 2007, and May 22, 2008.

The second subpoena was served on Yahoo! on May 22, 2008,

requesting information on the "padraigh8" account used to

communicate with "Julie." Yahoo!'s response stated that the

account was created on October 24, 2000, by "Padraigh No Name,"

with an alternate email address of padraigh9@hotmail.com provided

-- the same address which was used to create the MySpace page.

Yahoo! also informed Weidlich that padraigh8 accessed his account

from IP address 68.116.165.4 a total of 288 times "between" April

7, 2008, and May 21, 2008.

With that information, Weidlich served a third subpoena

on Charter Communications on June 4, 2008, requesting the identity

of the owner of the IP address 68.116.165.4 between the dates of

May 20, 2008, and May 22, 2008.2 The company responded by stating

that the IP address belonged to Patrick Kearney, and provided

2
The affidavit does not explain how the investigators
determined that IP address 68.116.165.4 was owned by Charter
Communications.

-4-
Kearney's home address –- 11 Morgan Drive, North Grafton,

Massachusetts -- telephone number, and email accounts. Kearney

opened the Charter account on August 23, 2003. The information

provided by Charter Communications was the only connection between

the IP address and an identifiable individual.

After receiving the response from Charter Communications,

Weidlich cross-referenced the information about Kearney against the

state Registry of Motor Vehicles database, which confirmed that

Kearney resided at 11 Morgan Drive.

On the basis of the affidavit supplied by Weidlich, a

warrant was issued by a magistrate judge on July 7, 2008, to search

the 11 Morgan Drive residence. The warrant authorized agents to

seize evidence of the commission of a criminal offense, contraband,

fruits of a crime, and property designated and intended for use,

and that had been used, as a means of committing certain criminal

offenses -- distribution and possession of child pornography, in

violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B), as well as

attempt to travel interstate for the purpose of engaging in illicit

sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b)

and (e).

The warrant was executed early in the morning of July 10,

2008, by eight FBI agents and two Grafton police officers. Kearney

and his girlfriend were the only occupants of the house. The

officers first did a protective sweep, as they had information that

-5-
Kearney had a firearm. He did, and he showed the officers where

the gun was, and the officers secured it. Kearney agreed to talk

with the officers during the search, and made a variety of

statements, including that he knew the images and videos he sent to

"Julie" depicted children under the age of eighteen. He also

admitted to downloading child pornography and storing it on his

computer. The officers executing the warrant seized five computers

and a variety of associated equipment.

Kearney was arrested on a complaint on July 25, 2008. A

seventeen-count indictment issued on August 20, 2008, charging

Kearney with eight counts of transportation of child pornography,

eight counts of distribution of child pornography, and one count of

possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(1), (a)(2), and (a)(4)(B), respectively. Kearney pled

not guilty to all counts on August 25, 2008.

On August 21, 2009, Kearney filed a motion to suppress,

arguing (1) that the affidavit submitted in support of the search

warrant application did not demonstrate the existence of probable

cause and (2) the agents did not act in good faith reliance on the

affidavit and so the search was not saved by the good faith

exception.3 The government opposed the motion, and a hearing took

3
Before the district court, Kearney also argued that the
statements he made while the officers executed the search warrant
were obtained in violation of his Miranda rights. The district
court rejected his argument, and Kearney does not raise that claim
on appeal.

-6-
place on October 29, 2009. On November 30, 2009, the district

court denied the motion to suppress. United States v. Kearney, No.

08-40022, 2009 WL 4591949 (D. Mass. Nov. 30, 2009). Kearney moved

to reconsider, and that motion was denied on December 14, 2009.

On March 8, 2010, Kearney conditionally pled guilty to

all counts at a change of plea hearing. Kearney reserved his right

to appeal the denial of his motion to suppress.

On May 13, 2010, the government filed a motion requesting

restitution under 18 U.S.C. § 2259 for "Vicky." "Vicky" was the

child subject of one of the pornographic videos which Kearney

possessed, transported, and distributed. She was a ten- or eleven-

year-old child at the time the video was made and is now in her

early twenties. In § 2259, Congress required courts to "order

restitution" in "the full amount of the victim's losses" for "any

offense" under Title 18, Chapter 110 of the United States Code,

which includes 18 U.S.C. § 2252. 18 U.S.C. § 2259(a), (b)(1). The

prosecution here proposed "an award of no less than $3,800," by

averaging the awards of restitution Vicky had received in thirty-

three other child pornography cases, and viewing the amount in

relation to her overall documented claims of losses. Kearney

opposed the motion. Kearney also filed a motion for a separate

hearing on the restitution issue, which the district court denied.

The government's request for restitution was supported by

affidavits and a letter provided by Vicky's attorney, with attached

-7-
documentation. On November 18, 2009, Vicky's attorney had received

a notification letter from the federal Victim Notification System

providing information about the prosecution of Kearney.4 By letter

of December 31, 2009, Vicky's attorney requested $226,546.10 in

restitution, including $188,705 in future counseling expenses,

$27,341.10 in expenses for records, evaluations, and other

supporting evidence regarding the restitution claim, and $10,500 in

attorneys' fees. As said, the prosecution actually sought the far

smaller amount of restitution of no less than $3,800.

The support for the restitution claim included two expert

reports from a psychologist, Dr. Green, as well as statements from

Vicky, her mother, and her stepfather. Dr. Green's reports were

based on over eight hours of interviews with Vicky, several

psychological tests and assessments of Vicky, interviews with

Vicky's mother and stepfather, and a review of numerous written

records about Vicky, including her therapy records.

4
The Department of Justice's Victim Notification System
(VNS) "provides federal crime victims with information on scheduled
court events, as well as the outcome of those court events. It
also provides victims with information on the offender's custody
status and release." Automated Victim Notification System, U.S.
Dep't of Justice, http://www.justice.gov/criminal/vns/about/
doj-avns.html (last visited Feb. 24, 2012). It appears to be the
mechanism which implements the statutory obligation of the
Department of Justice and other federal agencies "engaged in the
detection, investigation, or prosecution of crime" to "make their
best efforts to see that crime victims are notified of, and
accorded" certain rights, 18 U.S.C. § 3771(c)(1), including "[t]he
right to full and timely restitution as provided in law," id.
§ 3771(a)(6).

-8-
 The first report, from May 2009, made clear that Vicky

has suffered immensely not only from the initial creation of the

child pornography depicting her sexual exploitation and abuse, but

also from the continued dissemination and viewing of that

pornography. The report explains that Vicky has suffered "sexual

victimizations and exploitations," in addition to the initial

victimization by her biological father's creation of child

pornography using her. This latter category of harm included

"[t]he subsequent distribution of copious amounts of child

pornographic images involving her egregious victimization and

exploitation throughout the World Wide Web," and "[t]he downloading

and viewing of images of the above criminal victimizations by

multiple individuals on a continuing basis." The report explains

that Vicky "has suffered significant, permanent psychological

damage as a direct result of the knowledge that images of her

victimization, humiliation and exploitation have been downloaded

and viewed by numerous individuals. She will continue to suffer

from the knowledge and belief that those images of her childhood

abuse are at high probability to continue to be downloaded for

prurient purposes."

The expert report details the wide range of negative

impacts that Vicky has suffered, and will continue to suffer, from

the dissemination of the child pornography depicting her. These

harms include: impact on her ability to succeed academically, anger

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and resentment, anxiety, depression, distrust of men, insomnia,

reactivation of trauma-related reminders, and shame and

embarrassment.

The report makes clear that these harms are the direct

result of the dissemination and possession of the child

pornography. It explains that the "discovery of the downloads" was

a "powerful contributing factor[] to her anxiety." It continues:

"[d]iscovery of the distribution of her images on the internet and

viewing by persons interested in child pornography was clearly

devastating to her and also contributed to a profound sense of

sadness, despair and grief, that continues to a moderate degree to

the present time." The report states that "[t]he knowledge of the

proliferation of her abuse through the internet has exponentially

added to the types of triggers that can reactive [sic] trauma-

related thoughts or feelings," including "[e]ven a look or gesture

or touch by a male."

The report also detailed harms from an event in which

Vicky was harassed by an individual who had acquired the child

pornography depicting her. This individual had contacted her over

MySpace, stating that he had been looking for her for five years,

stated she had been a willing participant in the child pornography,

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expressed interest in making a pornographic video with her, and

demanded her cell phone number.5

The report concluded that "[t]he knowledge of the

dissemination and proliferation of the images of her at her times

of greatest humiliation and degradation constitutes a 'Type II'

trauma," which "represents a chronic, toxic condition . . . which

continuously works like corrosive acid on the psyche of the

individual." This type of trauma, according to the expert report,

is equivalent to that suffered by those who have lived near a war

zone.

The report also concluded that Vicky will need extensive

treatment over many years to address these psychological issues.

The report contained a detailed breakdown of the costs of Vicky's

projected treatment. The largest portion of those costs was for

individual psychotherapy sessions. The report projected that she

would need psychotherapy on a lifetime schedule: once per week for

the next four years, for a total of $35,000, then once every two

weeks for the following three years, costing an additional $13,125,

then for the next twenty-five years, up to once per month, for a

projected additional cost of $51,600. The total projected

individual therapy costs were $99,725. In addition to those costs,

the report projected additional costs for psychiatric medication

5
He was ultimately charged with possession of child
pornography in the District of Nevada.

-11-
management, family therapy, and relationship therapy, bringing the

total costs to between $126,365 and $128,005. These costs

apparently do not include the actual costs to her of medication.

The first report proved overly optimistic. The second

report, dated December 2009, stated that Vicky's mental-health

status had "significantly deteriorated." This was due, in part, to

the discovery of additional possessors and distributors of the

child pornography depicting her. It was also due, in part, to her

appearance in court to read a victim-impact statement, in another

case involving multiple defendants. This resulted in

"retraumatization," as Vicky discovered additional information

about the defendants who had possessed images of the child

pornography depicting her. She was exposed to "additional,

unforeseen ways" that the child pornography depicting her was being

used, including the creation of compilation videos containing

recent images of her. Vicky found this additional knowledge of

particular defendants' conduct "extraordinarily distressing and

frightening at multiple levels."

Beyond that, as had happened before, several others who

had acquired the child pornography depicting her had attempted to

make contact with her. These other efforts at contact greatly

upset her and represented "an added, ubiquitous, unpredictable

threat to her safety." The discoveries "enhanc[ed] her sense of

vulnerability to the nameless horde of persons who are obsessed

-12-
with her." Vicky continued "to affirm that the knowledge that

there are those downloading the images of crimes being committed

for their own personal sexual interests continues to have [a]

negative impact on her sense of security and personal privacy."

The expert report concluded that "she has found the wake

of her father's abuse to pale in comparison to the proliferating

implications of his heinous crimes against her being recorded for

anyone so motivated and inclined to view for their own unknowable

purposes. She has been appalled and confused by the discovery of

the hundreds, if not thousands, of seemingly disturbed individuals.

For all she knows, based on her experiences . . . , a number of

these individuals also pose a danger to children and possibl[y]

even to herself." The second expert report contained a cost

estimate, revised upward from the earlier estimate to between

$166,065 and $188,705, in light of Vicky's worsened condition.

There were new costs due to the recommendation of a five-week

residential treatment program that Dr. Green had not initially

believed was necessary at the time of the first report. Such

treatment was now necessary because "there [was] too great a

reactivation of symptoms for her to achieve the best results on an

outpatient, once weekly basis." The projected cost for such a

five-week program was $39,700.

On October 22, 2010, during Kearney's sentencing hearing,

the prosecutor read victim impact statements prepared by Vicky.

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The statements emphasized the harm Vicky has suffered, including

the fact that additional distribution and possession of the videos

depicting her exacerbates her emotional injury. Vicky explained

that she is "living every day with the horrible knowledge that

someone somewhere is watching the most terrifying moments of my

life and taking grotesque pleasure in them." She explained that

this knowledge "has given me a paranoia. I wonder if the people I

know have seen these images. . . . Because the most intimate parts

of me are being viewed by thousands of strangers and traded around,

I feel out of control." This "paranoia" was heightened by the fact

that "[s]ome of these perverts have tried to contact me. . . . I

wish I could one day feel completely safe, but as long as these

images are out there, I never will." Because of these attempts at

contact, Vicky "live[s] in fear that any of them may try to find me

and contact me and do something to me."

Vicky made clear that each individual who possessed and

distributed images harmed her: "Every time [the videos] are

downloaded, I'm exploited again, my privacy is breached, and my

life feels less and less safe." She also explained that "for each

one of the defendants you see, the fact that he has downloaded the

images of what has happened to me hurts me very much." These harms

included panic attacks, flashbacks, trouble sleeping, a fear of

groups and crowds, and leaving college due to panic attacks; these

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harms were "for the biggest part because of the men who are

downloading the pictures and videos of me."

Vicky's victim impact statements ended with a request for

restitution; she asked "that each one do something to help make up

for the harm that he has caused me by helping me to pay for the

counseling that I need."

The district court found that Kearney had proximately

caused Vicky to incur losses within the meaning of § 2259, and

adopted the government's proposed $3,800 restitution figure.

Kearney objected to the restitution award at sentencing. The

district court also found that Kearney's guideline range was 168 to

210 months, and sentenced Kearney to 108 months. Kearney appealed.

II.

A. The Search Warrant Affidavit and Probable Cause

Our "review of the denial of a motion to suppress is

bifurcated: a district court's legal conclusion that a given set of

facts constituted probable cause will be reviewed de novo, whereas

factual findings are reviewed for clear error." United States v.

McMullin, 568 F.3d 1, 5 (1st Cir. 2009). We review de novo the

district court's determination of whether the good-faith exception

to the exclusionary rule applies. Id.

"Probable cause to issue a search warrant exists when

given all the circumstances set forth in the affidavit . . . there

is a fair probability that contraband or evidence of a crime will

-15-
be found in a particular place." Id. at 6 (omission in original)

(quoting United States v. Reiner, 500 F.3d 10, 15 (1st Cir. 2007))

(internal quotation marks omitted).

Kearney argues that the affidavit does not tie his

ownership of the IP address on May 20-22, 2008, to any unlawful

conduct, and that because his IP address was "dynamic" in nature,

the fact that he owned or possessed it on those three days says

nothing about whether he possessed the address before or after that

period.6 According to the affidavit of Kearney's computer

forensics expert, a "dynamic" IP address is an IP address that an

internet service provider (ISP) may change after a certain number

of hours, days or weeks logged onto the system. Kearney's expert

also stated that the frequency with which an ISP changes a user's

dynamic IP address is determined by the ISP; some ISPs change

addresses frequently, while others may not change dynamic addresses

for months or even years. The user's conduct may also impact

whether a dynamic address is changed: some ISPs do not change

dynamic IP addresses unless a user disconnects his or her router or

modem.

6
The evidence provided by Kearney that his IP address was
dynamic, rather than static, was a printout of Charter
Communications's "Frequently Asked Questions" webpage, which
explained that Charter customers "are provided a dynamic IP address
unless a static IP address was specifically requested." The
government does not dispute that Kearney's IP address was dynamic
in nature.

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 Many facts relevant to the probable cause determination

are undisputed. The relevant Yahoo! account was used for

transmitting child pornography in May and June of 2008. The

MySpace account had the same name as the Yahoo! account and was

created using one of the same email addresses used to create the

Yahoo! account, leading to the reasonable inference that whoever

possessed the MySpace account also possessed the Yahoo! account.

IP address 68.116.165.4 repeatedly accessed both accounts during

certain periods of time. Kearney possessed IP address 68.116.165.4

during the May 20-22, 2008, period, during which no chats with

"Julie" took place.

Kearney's challenge depends upon his particular reading

of the affidavit and the nature of dynamic IP addresses. He

contends that the affidavit fails to establish that IP address

68.116.165.4 accessed the Yahoo! or MySpace accounts during the May

20-22, 2008, period. The affidavit states that "IP log records

from MySpace show that the user signed onto this MySpace account

from IP address 68.116.165.4 multiple times between 8/23/07 and

5/22/08." The affidavit also states that "According to Yahoo!,

padraigh8 accessed his account 288 times utilizing IP protocol

address 68.116.165.4 between 4/7/08 and 5/21/08." Kearney argues

that the use of the word "between" fails to establish that the

MySpace and Yahoo accounts were accessed on May 22 and May 21,

respectively, because the use of "between" in connection with dates

-17-
simply indicates that the event took place at some point between

the specified start and end date, rather than on the specified

start or end date. Kearney then argues that because he possessed

a dynamic IP address, his possession of IP address 68.116.165.4

between May 20 and 22 says nothing about whether he possessed it on

any other date, because dynamic IP addresses are frequently re-

assigned to different users.

Like the district court, we reject Kearney's argument.

As the district court found, the affidavit, reasonably read,

establishes that IP address 68.116.165.4 accessed the MySpace and

Yahoo! accounts on May 22 and 21, respectively. See Kearney, 2009

WL 4591949, at *6-7. In this context, a common-sense understanding

of how the word "between" is used is that the end dates specified

were the last date of access. As a matter of common usage, the two

dates on either side of "between" in this context are typically

used to specify the first and the last occurrence of the relevant

event or activity. Moreover, the variance in the end dates for the

two subpoenas supports this reading. It is reasonable to

understand the "between 8/23/07 and 5/22/08" description of the

MySpace log records and the "between 4/7/08 and 5/21/08"

description of the Yahoo! log records as being written in this

manner because the last date specified was, in fact, the last date

IP address 68.116.165.4 accessed the account.

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 Kearney argues that the last date simply reflected the

date the subpoena was sent, May 22. However, this argument does

not explain why the Yahoo! end date was given as May 21, as both

subpoenas were issued on May 22.

The fact that the affidavit establishes that the Yahoo!

account was accessed by Kearney on May 21 and the MySpace account

was accessed by him on May 22, along with the other information,

establishes probable cause. It is undisputed that these accounts

were the conduits for child pornography to be transmitted to

"Julie." And it is reasonable to infer that whoever accessed these

accounts on May 21 and 22, 2008, was also the user of these

accounts earlier that month and in June 2008 to engage in the

communications with "Julie."

Further supporting the existence of probable cause is the

sheer number of times the Yahoo! account was accessed from IP

address 68.116.165.4 during the April 7, 2008, to May 21, 2008,

period -- 288 times. Kearney's expert testified that ISPs

sometimes keep dynamic IP addresses the same for months, or even

years. The high number of accesses of the Yahoo! account from the

same IP address over a relatively short period of time shortly

before the May 20 to 22 period when it was clear that Kearney

possessed the IP address supports a finding of probable cause here.

Also noteworthy is that during a chat on June 13, 2008, padraigh8

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told "Julie" that his last name was "Carney" -- a variant of

"Kearney."

It is true the affidavit could have been drafted to make

it indisputably clear that Kearney accessed the accounts on May 21

and 22; but that does not mean that there was a failure to

establish probable cause. The affidavit could easily have made

explicit that there were connections on both the first and last

date. Indeed, the Department of Justice's manual cautions

investigators to make sure that the ISP "identif[ies] which of its

customers was assigned [the relevant] IP address at the relevant

time." Computer Crime & Intellectual Prop. Section, Dep't of

Justice, Searching and Seizing Computers and Obtaining Electronic

Evidence in Criminal Investigations 65, 242 (3d ed. 2009) (emphasis

added), available at http://www.cybercrime.gov/ssmanual/

ssmanual2009.pdf.

The question here is simply whether, "given all the

circumstances set forth in the affidavit . . . , there [was] a fair

probability that contraband or evidence of a crime [would] be

found" in Kearney's residence. Illinois v. Gates, 462 U.S. 213,

238 (1983). That standard was satisfied and the district court did

not err in denying Kearney's motion to suppress.7

7
As a result, we need not address the district court's
conclusion that even if the affidavit did not establish probable
cause, the good-faith exception to the exclusionary rule applies.
United States v. Kearney, No. 08-40022, 2009 WL 4591949, at *7-8
(D. Mass. Nov. 30, 2009).

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B. The Restitution Order

We review orders of restitution for abuse of discretion,

reviewing legal questions de novo and subsidiary findings of fact

for clear error. United States v. Janosko, 642 F.3d 40, 41 n.1

(1st Cir. 2011); United States v. Mahone, 453 F.3d 68, 73 (1st Cir.

2006).

Kearney raises three challenges to the $3,800 restitution

order issued under 18 U.S.C. § 2259. He argues (1) that Vicky was

not a "victim" within the meaning of § 2259(c), (2) that § 2259

imposes a proximate cause requirement and that requirement is not

satisfied here, and (3) that even if Vicky was a victim, and

proximate cause exists, the district court lacked a reasonable

basis for the $3,800 amount awarded.

These are questions of first impression for this circuit.

A number of circuits have recently been faced with similar

questions regarding § 2259. United States v. Evers, No. 08-5774,

2012 WL 413810 (6th Cir. Feb. 10, 2012) (to be published in F.3d);

United States v. McGarity, No. 09-12070, 2012 WL 370104 (11th Cir.

Feb. 6, 2012) (to be published in F.3d); United States v. Aumais,

656 F.3d 147 (2d Cir. 2011); United States v. Kennedy, 643 F.3d

1251 (9th Cir. 2011); United States v. Monzel, 641 F.3d 528 (D.C.

Cir. 2011), cert. denied, 132 S. Ct. 756 (2011); United States v.

Wright, 639 F.3d 679 (5th Cir. 2011), reh'g en banc granted, No.

09-31215, 2012 WL 248828 (Jan. 25, 2012); In re Amy Unknown, 636

-21-
F.3d 190 (5th Cir. 2011), reh'g en banc granted, Nos. 09-41238, 09-

41254, 2012 WL 248829 (Jan. 25, 2012); United States v. McDaniel,

631 F.3d 1204 (11th Cir. 2011); United States v. Laney, 189 F.3d

954 (9th Cir. 1999); United States v. Crandon, 173 F.3d 122 (3d

Cir. 1999).

We start with the restitution statute before turning to

Kearney's arguments.

1. The Statutory Restitution Scheme Under 18 U.S.C.
§ 2259

The particular restitution statute at issue is 18 U.S.C.

§ 2259. This provision was enacted as a portion of Title IV,

"Violence Against Women," of the Violent Crime Control and Law

Enforcement Act of 1994, Pub. L. No. 103-322, § 40113, 108 Stat.

1796, 1907, and amended (with respect to its procedural provisions)

by the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, § 205, 110 Stat. 1214, 1231. Section

2259, which is entitled "Mandatory restitution," provides in full:

(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).

-22-
(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 victims' 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.

(4) ORDER MANDATORY.--(A) The issuance
of a restitution order under this
section is mandatory.

(B) A court may not decline to
issue an order under this section
because of–

(i) the economic
circumstances of the
defendant; or

(ii) the fact that a victim
has, or is entitled to,
receive compensation for his
or her injuries from the

-23-
 proceeds of insurance or any
other source.

(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, including, in the case of a
victim who is under 18 years of age,
incompetent, incapacitated, or deceased, the
legal guardian of the victim or representative
of the victim's estate, another family member,
or any other person appointed as suitable by
the court, but in no event shall the defendant
be named as such representative or guardian.

18 U.S.C. § 2259.

There are other statutes, such as the Mandatory Victims

Restitution Act of 1996 (MVRA), id. § 3663A, and the Victim and

Witness Protection Act of 1982 (VWPA), id. § 3663, governing

restitution for other types of crimes. While some language in the

three statutory restitution schemes is the same, there are

differences and those differences must be given weight.8 In the

statute involved here, Congress was careful to specify some

definitions of recoverable losses where it had not done so in other

restitution statutes. Compare 18 U.S.C. § 2259(b)(3) (defining

8
Pursuant to 18 U.S.C. § 2259(b)(2), restitution orders
under § 2259 "shall be issued and enforced in accordance with
section 3664," which also governs restitution awards under the MVRA
and VWPA, see id. §§ 3663(d), 3663A(d). Section 3664 is entitled
"Procedure for issuance and enforcement of order of restitution,"
and contains a variety of procedural provisions regarding
restitution orders. One provision of § 3664 is relevant here:
"[a]ny dispute as to the proper amount or type of restitution shall
be resolved by the court by the preponderance of the evidence. The
burden of demonstrating the amount of the loss sustained by a
victim as a result of the offense shall be on the attorney for the
Government." Id. § 3664(e).

-24-
compensable losses), with id. § 3663(b) (defining compensable

losses), and id. § 3663A(b) (same). Congress also gave a different

definition of victim, as explained below.

Several features of this statutory scheme are relevant

here. Like the MVRA, but unlike the VWPA, restitution under § 2259

is mandatory, if the requirements of the section are satisfied.

Id. § 2259(b)(4)(A); see also id. § 3663A(a)(1) (under the MVRA,

the court "shall order" restitution); id. § 3663(a)(1)(A) (under

the VWPA, the court "may" order restitution); see also S. Rep. No.

103-138, at 56 (1993) (explaining that § 2259 was designed to

"requir[e] the court to order the defendant to pay the victim's

expenses"). Restitution orders under this section may only be

issued for offenses "under this chapter." 18 U.S.C. § 2259(a).

Chapter 110 of Title 18 covers several categories of offenses,

including possession, transportation, and distribution of child

pornography. Id. § 2252. Restitution may only be issued to a

"victim," id. § 2259(b)(1), which term is defined as "the

individual harmed as a result of a commission of a crime under this

chapter," id. § 2259(c). This definition of victim is broader than

that of the MVRA and VWPA, which define victim as "a person

directly and proximately harmed as a result" of a specified

offense. Id. § 3663(a)(2); id. § 3663A(a)(2) (same).

Further, restitution is for the "costs incurred by the

victim," which are illuminated in six enumerated categories of

-25-
losses. Id. § 2259(b)(3). The section defines what is meant by

restitution as being "the full amount of the victim's losses," id.

§ 2259(b)(1), which includes any costs incurred by the victims for

specified items, id. § 2259(b)(3). These losses include "medical

services relating to physical, psychiatric, or psychological care,"

id. § 2259(b)(3)(A), and other items.9 Thus the "full amount"

includes such losses and Congress determined that the victims of

crimes under this statute were likely to suffer losses in these

categories. The specified loss categories expanded the usual

categories of "restitutionary" losses. For example, they were not

limited to more usual examples of restitution such as payment of

the value of a car where the defendant stole the victim's car. Cf.

id. § 3663A(b)(1) (restitution for certain offenses resulting in

damage to or loss of property requires return of the property or

compensation in an amount equal to the value of the property). The

loss definition for the crimes under this chapter also contains a

general catch-all provision for "any other losses suffered by the

victim as a proximate result of the offense." Id. § 2259(b)(3)(F).

9
Kearney raises no claim that an award for future counseling
costs is not authorized by the statutory language of "costs
incurred," so we need not decide this issue. We do note that the
four circuits that have considered the matter have concluded that
such future expenses are compensable. See United States v.
Pearson, 570 F.3d 480, 486 (2d Cir. 2009) (per curiam) (holding
that "§ 2259 authorizes compensation for future counseling
expenses"); United States v. Danser, 270 F.3d 451, 455 (7th Cir.
2001) (same); United States v. Julian, 242 F.3d 1245, 1247 (10th
Cir. 2001) (same); United States v. Laney, 189 F.3d 954, 966-67
(9th Cir. 1999) (same).

-26-
 We view the issues raised by the restitution scheme in

three steps: (1) the requirements for an individual to be

considered a "victim" within the meaning of § 2259(c); (2) the

causation requirement applicable to determining which "costs

incurred by the victim," id. § 2259(b)(3), are compensable; and (3)

assuming that a victim has identified compensable costs that

satisfy the causation requirement, whether the district court made

a reasonable determination of a dollar figure. See Kennedy, 643

F.3d at 1263; see also McGarity, 2012 WL 370104, at *34. Each of

these issues involves assessment of the legal standard that applies

as well as whether the particular facts of this case satisfy the

applicable standard. There is some overlap, of course, among these

issues.

2. Victim Status

Under § 2259, restitution may only be awarded to a

"victim," which "means the individual harmed as a result of a

commission of a crime under this chapter." 18 U.S.C. § 2259(c).

Kearney contends that it is "unclear" that Vicky is a victim of

Kearney's conduct, with little explanation.

Vicky is plainly a victim of Kearney's crimes. Any

argument that Vicky has not suffered harm as a result of Kearney's

crimes defies both fact and law. The Supreme Court has repeatedly

explained, for thirty years, that individuals depicted in child

pornography are harmed by the continuing dissemination and

-27-
possession of such pornography containing their image. Such

materials are "a permanent record of the children's participation

and the harm to the child is exacerbated by their circulation."

New York v. Ferber, 458 U.S. 747, 759 (1982); see also United

States v. Williams, 553 U.S. 285, 303 (2008) (such materials

"constitute 'a permanent record' of the children's degradation

whose dissemination increases 'the harm to the child'" (quoting

Ferber, 458 U.S. at 759)); Osborne v. Ohio, 495 U.S. 103, 111

(1990) ("[T]he materials produced by child pornographers

permanently record the victim's abuse. The pornography's continued

existence causes the child victims continuing harm by haunting the

children in years to come."). Indeed, the Court has stated that

"as a permanent record of a child's abuse, the continued

circulation itself would harm the child who had participated. Like

a defamatory statement, each new publication of the speech would

cause new injury to the child’s reputation and emotional

well-being." Ashcroft v. Free Speech Coal., 535 U.S. 234, 249

(2002) (emphasis added). These statements were well supported by

medical and social science. See Ferber, 458 U.S. at 759-60 & nn.9-

10 (collecting authority).

Congress was well aware of the Supreme Court's

explanation of the "continuing harm," Osborne, 495 U.S. at 111,

caused by possession and distribution of child pornography at the

time it enacted § 2259. Indeed, the sponsor of the Senate

-28-
amendment that resulted in 18 U.S.C. § 2252(a)(4)(B), which

criminalizes the possession of child pornography, explained that

the provision was "consistent with the U.S. Supreme Court's

decision in Osborne." 136 Cong. Rec. 16,292 (1990) (statement of

Sen. Strom Thurmond).10

Congress has also since repeatedly emphasized, in

legislation amending the laws governing child pornography, the

continuing harm the distribution and possession of child

pornography inflicts. See Effective Child Pornography Prosecution

Act of 2007, Pub. L. No. 110-358, Tit. I, § 102(3), 122 Stat. 4001,

4001 ("Child pornography is a permanent record of a child's abuse

and the distribution of child pornography images revictimizes the

child each time the image is viewed."); Adam Walsh Child Protection

and Safety Act of 2006, Pub. L. No. 109-248, § 501(2)(D), 120 Stat.

587, 624 ("Every instance of viewing images of child pornography

represents a renewed violation of the privacy of the victims and a

repetition of their abuse."); Child Pornography Prevention Act of

1996, Pub. L. No. 104-208, § 121(1)(2), 110 Stat. 3009, 3009-26

10
Congress has been particularly cognizant of the Supreme
Court's rulings in the child pornography context, given concerns
that overbroad attempts to regulate child pornography could result
in the legislation being invalidated on First Amendment grounds.
Indeed, the committee report to the first federal law criminalizing
the production and distribution of child pornography explained that
"[s]ince the question of constitutionality is so essential to the
effectiveness of the bill, it deserves further discussion," and the
report contained an extensive discussion of Supreme Court precedent
on the matter. S. Rep. No. 95-438 (1977) (Conf. Rep.), reprinted
in 1978 U.S.C.C.A.N. 40, 49.

-29-
("[C]hild pornography permanently records the victim’s abuse, and

its continued existence causes the child victims of sexual abuse

continuing harm by haunting those children in future years

. . . .").

Also noteworthy is the choice by Congress in § 2259 to

define "victim" more broadly than in other restitution statutes.

Under § 2259, a victim is "the individual harmed as a result of a

commission of a crime under this chapter." 18 U.S.C. § 2259(c).

Other restitution statutes, by contrast, define victim more

narrowly, as "a person directly and proximately harmed as a result

of the commission of an offense" for which restitution can be

ordered. Id. § 3663(a)(2) (emphasis added); see also id.

§ 3663A(a)(2); id. § 2327(c). Indeed, the "directly and

proximately" language was added to § 3663(a)(2) at the same time

Congress amended § 2259 with respect to its procedural provisions,

see AEDPA, § 205, 110 Stat. at 1229-31, but Congress expressly

declined to alter the definition of victim under § 2259, see S.

Rep. No. 104-179, at 14 (1995) ("No change is made to the scope of

restitution required under the Violence Against Women Act

provisions . . . .").

Not surprisingly, the circuit courts agree that those

children depicted in child pornography are victims within the

meaning of § 2259(c). Every circuit to consider the matter has

found that those depicted by child pornography are "victims" of the

-30-
crimes of possession and distribution within the meaning of

§ 2259(c). See McGarity, 2012 WL 370104, at *36 (finding victim

status based on Ferber); Aumais, 656 F.3d at 152 (quoting Ferber on

victim status); Kennedy, 643 F.3d at 1263 (finding a possessor of

child pornography harms those depicted even if the depicted

individuals have no knowledge of the possessor's identity); In re

Amy Unknown, 636 F.3d at 200-01 (those depicted in child

pornography are victims under the reasoning of Ferber); McDaniel,

631 F.3d at 1208 ("McDaniel 'harmed' Vicky under the meaning of

section 2259(c) by possessing images of her sexual abuse as a

minor."); see also Evers, 2012 WL 413810, at *8 (holding that the

legal guardian of a minor who was the subject of child pornography

was a victim within the meaning of § 2259(c)).

3. Proximate Cause

Kearney's second argument is that only those "costs

incurred by the victim" which occur as a proximate result of the

offense conduct of the defendant are compensable under 18 U.S.C.

§ 2259(b)(3). Kearney views this requirement as excluding the

award of restitution here. We disagree.

It is clear to us that Congress intended some causal link

between the losses and the offense to support the mandated

restitution. However, in this statute, Congress also did not

specify the level of causation except in one place -- the catch-all

clause of the definition of losses, 18 U.S.C. § 2259(b)(3)(F).

-31-
 With the exception of only a Fifth Circuit panel (which

relied on the difference in language between the catch-all clause

and the other clauses) in an opinion which has been vacated for

rehearing en banc, In re Amy Unknown, 636 F.3d at 198-201, all

other circuit decisions have said they interpret the statute as

using a proximate causation standard connecting the offense to the

losses. See Evers, 2012 WL 413810, at *10-11; McGarity, 2012 WL

370104, at *38; Aumais, 656 F.3d at 153; Kennedy, 643 F.3d at 1261;

Monzel, 641 F.3d at 536-37; McDaniel, 631 F.3d at 1208-09; Crandon,

173 F.3d at 125-26. This interpretation is supported by a variety

of considerations, explained in Monzel, 641 F.3d at 535-37.11 The

government does not dispute that a proximate cause test applies.

This seeming agreement on a standard suggests more

harmony than there is. On rather similar facts the circuits have

reached different outcomes in applying the proximate cause test,

and those outcomes cannot be entirely explained by differences in

the facts of record. Compare Monzel, 641 F.3d at 537-40 (finding

proximate cause but remanding to determine the amount of harm so

caused), and McDaniel, 631 F.3d at 1209 (holding that the district

court did not clearly err in finding proximate cause), with

11
We note one other interpretative aid not mentioned by the
other circuits to assess this issue: the Senate committee report on
the bill including § 2259, which explained that "[t]his section
requires sex offenders to pay costs incurred by victims as a
proximate result of a sex crime." S. Rep. 103-138, at 56 (1993)
(emphasis added) (committee report on the Violence Against Women
Act, which contained the provision that became 18 U.S.C. § 2259).

-32-
McGarity, 2012 WL 370104, at *37-38 (finding that proximate cause

was not established); Aumais, 656 F.3d at 154-55 (same), and

Kennedy, 643 F.3d at 1263-65 (same). In our view, any proximate

cause standard must be understood and applied in terms of the

precise language of the statute and the clear intentions of

Congress.

Many courts and commentators have opined over the years

on what is meant by proximate causation, particularly in contrast

with "but-for" causation. See, e.g., Marshall v. Nugent, 222 F.2d

604 (1st Cir. 1955); Palsgraf v. Long Island R.R. Co., 162 N.E. 99

(N.Y. 1928); see also Holmes v. Sec. Investor Prot. Corp., 503 U.S.

258 (1992). The differences are usually discussed in tort cases.

Perhaps Congress meant to incorporate general common-law principles

of tort law for all the loss causation categories of § 2259,

although it did not say so explicitly, and Congress surely did not

mean to adopt principles at odds with its objectives.12

To start, we see no conflict between traditional notions

of proximate cause and a finding of proximate cause on these facts.

In a Federal Tort Claims Act case applying Massachusetts tort law,

this court discussed some differences between proximate cause and

12
One other circuit has explained that, while 18 U.S.C.
§ 2259 is a criminal restitution statute, "it functions much like
a tort statute by directing the court to make a victim whole for
losses caused by the responsible party," and thus "tort doctrine
informs our thinking" with respect to the statute. United States
v. Monzel, 641 F.3d 528, 535 n.5 (D.C. Cir. 2011), cert. denied,
132 S. Ct. 756 (2011).

-33-
"but-for" causation. Davis v. United States, No. 10-1418, 2012 WL

170871, at *3-6 (1st Cir. Jan. 20, 2012) (to be published in F.3d).

"As it happens, proximate cause can also raise legal issues as well

as factual ones; but-for causation is almost always a factual

issue." Id. at *3. As for proximate cause, we said that

"[a]lthough foreseeability is a prime element in proximate cause,

the concept is freighted with policy concerns about open-ended

liability for remote effects, which courts may cut off under a

variety of labels (lack of duty, unforeseeability, intervening

cause, scope of the risk)." Id. at *6 (citation omitted). We have

also explained proximate cause as requiring that a plaintiff "show

that his or her injuries were within the reasonably foreseeable

risks of harm created by the defendant's . . . conduct." Staelens

v. Dobert, 318 F.3d 77, 79 (1st Cir. 2003) (applying Massachusetts

law).

As is clear from the expert reports, Vicky clearly

suffered harms that will require substantial mental-health

treatment. These harms, and Vicky's resulting need for mental-

health treatment, were reasonably foreseeable at the time of

Kearney's conduct. Cf. Evers, 2012 WL 413810, at *11 (finding

reasonably foreseeable that a parent of a minor victim will attend

court proceedings and miss work, resulting in losses proximately

caused by the defendant and compensable under § 2259).

-34-
 The restitution statute was enacted against a body of

Supreme Court case law explaining the type of harm caused by

distribution and possession of child pornography, including

psychological harm, as discussed above. These cases make clear

that injury to the child depicted in the child pornography,

including injury that will require mental-health treatment, is a

readily foreseeable result of distribution and possession of child

pornography.

In addition, Congress expressly included "medical

services relating to physical, psychiatric, or psychological care"

as compensable losses under § 2259. 18 U.S.C. § 2259(b)(3)(A).

This express inclusion -- which is not found in all other

restitution statutes for other crimes, see id. § 3663(b)(1); id.

§ 3663A(b)(1) -- indicates that Congress believed such damages were

sufficiently foreseeable to warrant their enumeration in the

statute. This enumeration bears emphasis because at the same time

Congress enacted § 2259, it enacted another restitution statute

that did not enumerate categories of losses, but rather stated that

"the term 'full amount of the victims losses' means all losses

suffered by the victim as a proximate result of the offense."13

13
Congress has also varied the precise coverage of enumerated
categories of losses for other restitution statutes. Two
restitution statutes enacted in the same bill as § 2259 -- 18
U.S.C. § 2248 and § 2264, have categories of compensable losses
nearly identical to those of § 2259, but also include "any costs
incurred in obtaining a civil protection order." Id. §§
2248(b)(3)(E); 2264(b)(3)(E). Section 2248 provides restitution

-35-
Violent Crime Control and Law Enforcement Act, § 250002, 108 Stat.

at 2083 (codified at 18 U.S.C. § 2327(b)(3)) (restitution for

telemarketing fraud crimes).

In addition, Congress provided restitution for "any

offense under this chapter" in § 2259. Id. § 2259(a) (emphasis

added). Congress neither limited restitution to the initial

creation of child pornography nor excluded cases of child

pornography possession and distribution from those offenses which

require mandatory restitution. This expression of congressional

intent also weighs against any construction of a proximate cause

requirement that would functionally preclude any award of

restitution under § 2259 for possession and distribution offenses.

The policy concerns we noted in Davis would not lead us

to find an absence of proximate cause here. There was no lack of

duty on the part of the defendant, these losses were foreseeable,

and the defendant took the risk of causing harm to the victim. See

for sexual abuse offenses, and § 2264 provides restitution for
domestic violence and stalking offenses.
Similarly, 18 U.S.C. § 1593, which provides restitution for
peonage, slavery, and human trafficking offenses, expressly
incorporates the definition of "full amount of the victim's losses"
used in § 2259, but includes "in addition . . . the greater of the
gross income or value to the defendant of the victim's services or
labor or the value of the victim's labor as guaranteed under the
minimum wage and overtime guarantees of the Fair Labor Standards
Act." Id. § 1593(b)(3).
These variances in compensable categories of losses for
particular crimes, even though all these statutes contained a
catch-all clause, demonstrate that Congress viewed particular
offenses as causing foreseeable risks of certain losses, which
Congress enumerated in the statutes.

-36-
Davis, 2012 WL 170871, at *6. Nor would the concept of intervening

cause be a bar.

Kearney's argument is in actuality an unsuccessful

attempt to use a but-for causation standard to limit those

reasonably foreseeable losses. It is easy to reject the argument

that but-for the biological father's crimes, there would have been

no child pornography to possess and distribute; the biological

father's previous acts do not eliminate the causation of harm

flowing from Kearney's conduct. Kearney also argues that because

so many have seen and distributed the pornography, his contribution

cannot be said to have caused any harm absent specific linkage to

Vicky's knowledge about him. We first deal with the argument in

terms of a legal principle.

While the expert report explains in detail the harm Vicky

has suffered from possession and distribution of the child

pornography depicting her, it is true that it does not state that

any single additional instance of possession or distribution by

itself increases the harm to Vicky. But although such an

explanation would be sufficient for a finding of causation, it is

not necessary for such a finding. Kearney's conduct contributed to

a state of affairs in which Vicky's emotional harm was worse than

would have otherwise been the case. Proximate cause exists where

the tortious conduct of multiple actors has combined to bring about

-37-
harm, even if the harm suffered by the plaintiff might be the same

if one of the numerous tortfeasors had not committed the tort.

This principle is widely accepted. As Prosser and Keaton

explain in the context of but-for causation:

When the conduct of two or more actors is so
related to an event that their combined
conduct, viewed as a whole, is a but-for cause
of the event, and application of the but-for
rule to each of them individually would
absolve all of them, the conduct of each is a
cause in fact of the event.

Keeton et al., Prosser and Keeton on Torts § 41 at 268 (5th ed.

1984). Results reached in reported decisions are "almost uniformly

consistent" with this principle. Id. at 268 n.40.

To the extent that Kearney's argument is one of proximate

causation, rather than but-for causation, the same reasoning

applies to reject his contention. It is clear that, taken as a

whole, the viewers and distributors of the child pornography

depicting Vicky caused the losses she has suffered, as outlined in

the expert report. Proximate cause therefore exists on the

aggregate level, and there is no reason to find it lacking on the

individual level. The Restatement (Third) of Torts has recognized

this: causation exists even where "none of the alternative causes

is sufficient by itself, but together they are sufficient" to cause

the harm. Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 27 reporters' n. cmt. g. (2010); id. § 36 cmt. a

("[E]ven an insufficient condition . . . can be a factual cause of

-38-
harm when it combines with other acts to constitute a sufficient

set to cause the harm . . . .").14

Kearney argues that because his contribution to the harm

cannot be precisely ascertained with exactitude, and Vicky would

have suffered harm in the absence of his conduct, he cannot be

deemed to have proximately caused Vicky any harm. The "logic" of

his argument is that there would be no remedy for the harm suffered

by Vicky as a result of the redistribution and possession of her

images. The law rejects such skewed "logic." See Keeton et al.,

Prosser and Keeton on Torts § 41 at 268-69 (5th ed. 1984)

(advocating the rule discussed above because "[e]ach [defendant]

seeks to escape liability for a reason that, if recognized, would

likewise protect each other defendant in the group, thus leaving

the plaintiff without a remedy in the face of the fact that had

14
As an example of this principle, the Restatement's
reporters discuss a case where a liquor store was not found liable
under a dramshop statute, because the two "sips" of wine it
provided to the intoxicated driver did not substantially contribute
to the intoxication of the driver, who had a blood alcohol level of
.12. Restatement (Third) of Torts: Liability for Physical and
Emotional Harm § 27 reporters' n. cmt. i. (2010). In discussing
the "difficulty with dismissing such small potential causes," the
reporters remark that "what if the driver had obtained wine from
two dozen different sources and drank two gulps from each source,
resulting in his intoxication? The conclusion that none of the
sources was a cause of his intoxication is obviously untenable."
Id.; see also Wright, Causation in Tort Law, 73 Cal. L. Rev. 1735,
1792 (1985) ("[I]n the pollution cases, the courts have allowed the
plaintiff to recover from each defendant who contributed to the
pollution that caused the injury, even though none of the
defendants' individual contributions was either necessary or
sufficient by itself for the occurrence of the injury.").

-39-
none of them acted improperly the plaintiff would not have suffered

the harm" (footnote omitted)).

This result Kearney seeks would not only be illogical,

but would also be contrary to the purposes of restitution under

§ 2259 with respect to child pornography distribution and

possession. Kearney's interpretation would not only frustrate

Congress's goal of ensuring that victims receive full compensation

for the losses they have incurred under § 2259 but would be

contrary to that goal. See United States v. Aguirre, No. 10-10175,

2011 WL 3629236, at *3 (9th Cir. Aug. 18, 2011) (per curiam)

(Callahan, J., specially concurring). Congress made clear that

restitution is "mandatory" "for any offense under" Chapter 110,

which includes the provisions of 18 U.S.C. § 2252, criminalizing

distribution and possession of child pornography. 18 U.S.C.

§ 2259(a), (b)(4)(A). We reject the theory that the victim of

child pornography could only show causation if she focused on a

specific defendant's viewing and redistribution of her images and

then attributed specific losses to that defendant's actions. The

facts here establish that when Vicky confronted particular

defendants by reading a victim-impact statement at sentencing, her

treatment was set back and she suffered retraumatization. The

facts also show that when particular viewers/redistributors

attempted to contact her, she suffered setbacks. There is no

reason to think the proven paradigm of additional harm to her from

-40-
paying intensive attention to a particular offender would be

different for this defendant. Congress was attempting to

compensate the victims of child pornography, not to intensify the

harm they have already suffered as a condition of obtaining

restitution. Interpretation and application of the concept of

proximate cause must be consistent with the congressional purpose

of § 2259 of ensuring full compensation of losses for the victims

of child pornography distribution and possession.15 This is a

timeless principle of statutory interpretation. See Dolan v.

United States, 130 S. Ct. 2533, 2539 (2010) (interpreting the

90-day requirement of 18 U.S.C. § 3664(d)(5) in light of the fact

that "the statute seeks primarily to assure that victims of a crime

receive full restitution").

We hold that the proximate cause requirement was

satisfied here, because Kearney's actions resulted in identifiable

losses as outlined in the expert reports and Vicky's victim impact

statements.16 Accord Monzel, 641 F.3d at 539. We do not suggest

15
Indeed, Congress in § 2259 said that restitution may not
be denied based on "the economic circumstances of the defendant,"
18 U.S.C. § 2259(b)(4)(B)(i), or because the victim has received
compensation from a collateral source, id. § 2259(b)(4)(B)(ii).
16
This result is consistent with United States v. Vaknin, 112
F.3d 579 (1st Cir. 1997), for several reasons. First, Vaknin
addressed causation under a different restitution statute, the
VWPA, 18 U.S.C. §§ 3663, 3664, which contains different language,
including with respect to enumerated categories of losses, and
addresses different offenses than § 2259. Indeed, restitution
under § 3363(a) is not mandatory. See id. § 3663(a)(1)(A).
Second, Vaknin addressed a different question of proximate

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that in all instances where there is a victim within the meaning of

the statute, the victim is entitled to restitution, even if the

victim lacks any knowledge of the defendant's crime. Here, Vicky's

lawyer received a victim notification letter, and she affirmatively

requested restitution. This is stronger evidence of notice than in

some other cases.

4. Determination of the Dollar Amount

Kearney's final argument is that the district court's

method of determining the dollar amount of restitution was

improper. This is a re-casting of his proximate cause argument

discussed above: Kearney claims that because he was only one of

numerous individuals who contributed to the losses incurred by

Vicky, and the expert report and victim impact statements did not

indicate what portion of those losses was caused by Kearney, the

district court lacked a reasonable basis for determining that he

was responsible for $3,800 of Vicky's losses. This final argument

also fails.

cause. There, the court was concerned with whether "an intervening
phenomenon . . . is the more immediate cause of the loss," --
essentially, whether the causal chain was too attenuated to satisfy
the standard of proximate cause. Vaknin, 112 F.3d at 586; see also
id. at 589 ("Restitution should not lie if the conduct underlying
the offense of conviction is too far removed, either factually or
temporally, from the loss."). This issue of proximate causation is
conceptually distinct from the question of how to assess causation
where a large number of individuals each contributed in some degree
to an overall harm.
Third, to the extent that the causation standard announced
in Vaknin could be thought to apply to § 2259, both but-for and
proximate causation are established here.

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 The district court used the government's suggested

figure, which was arrived at by averaging the awards Vicky had

received in thirty-three other restitution cases, after discarding

the highest and lowest values awarded. It considered this sum

against the total losses. The court then found that this number

was "proportionate and reasonable and tied to the facts of this

case," and that the $3,800 was about 1.5% of the total amount that

Vicky requested in restitution.

In calculating the dollar figure owed in restitution, the

court need only make a "reasonable determination of appropriate

restitution." United States v. Innarelli, 524 F.3d 286, 294 (1st

Cir. 2008) (quoting United States v. Vaknin, 112 F.3d 579, 587 (1st

Cir. 1997)) (internal quotation marks omitted). "Absolute

precision" is not required. Id. (quoting United States v. Burdi,

414 F.3d 216, 221 (1st Cir. 2005)) (internal quotation marks

omitted). Moreover, the district court has leeway to "resolve

uncertainties 'with a view towards achieving fairness to the

victim.'" Id. (quoting Vaknin, 112 F.3d at 587). Other circuits

also recognize that "some degree of approximation" is acceptable

under § 2259, and that "mathematical precision" is not required.

Monzel, 641 F.3d at 540 (quoting United States v. Doe, 488 F.3d

1154, 1160 (9th Cir. 2007)) (internal quotation marks omitted).

Under this standard, the district court did not err.

There is nothing improper about considering restitution awards in

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other similar circumstances in fashioning a restitution award. Cf.

Davis, 2012 WL 170871, at *9 (examining awards of damages in

similar circumstances to determine whether an award of damages

amounted to an abuse of discretion). The figures used were those

of awards, not of actual collection of awards, which the record

shows is far less, and the district court also found the award to

be both proportionate and reasonable.

Here, the restitution award was small, both in absolute

terms and as a proportion of the total amount of the restitution

request. Kearney pled guilty not only to possession of child

pornography depicting Vicky, but also to its distribution, thus

ensuring a continuation of the harm to Vicky. Against the total

amount of the loss, the total amount of restitution actually

received by Vicky to the date of this award is still very far from

approaching a sum of full compensation, and that sum may never, in

fact, be reached.

Kearney does not contend that there is any danger of

overcompensation present;17 there is no indication that Vicky has

come close to receiving the total amount of restitution requested.

Any concerns about possible multiple compensations of the victim

beyond actual losses, or of earlier restitution awards awarding too

17
No issues of possible overcompensation of the victim, of
joint and several liability, or of the operation of the collateral
source rule in the statute were raised by Kearney.

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much in light of subsequent restitution received, can be addressed

if and when they arise in other cases.

We affirm the restitution award.

III.

The judgment of the district court is affirmed.

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