United States v. Wright

W. EUGENE DAVIS, Circuit Judge,

specially concurring:

I write separately to express my disagreement with the recent holding by the In re Amy panel that § 2259 does not limit the victim’s recoverable losses to those proximately caused by the defendant’s offense and to urge the court to grant en banc review of that decision.

I.

At bottom, this is a statutory interpretation case and I begin with a consideration of the structure and language of the statutes at issue. Section 2259 specifically governs mandatory restitution awards for crimes related to the sexual exploitation and other abuse of children. Section 2259(a) states that the court “shall order restitution for any offense under this chapter.” Section 2259(b)(3) states that the victim’s losses are defined as those suffered by the victim “as a proximate result of the offense.” Again, the full text of § 2259(b)(3) is as follows:

“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) attorney’s fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proximate result of the offense.”

(emphasis added).

I interpret this statutory list according to the fundamental canon of statutory construction established by the Supreme Court in Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920), in which the Court held that “[w]hen several words are followed by a clause which is applicable as *687much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” Applying this cardinal rule of statutory interpretation, I conclude that the clause “as a proximate result of the offense” applies equally to the previous five subcategories of losses, (A) through (E), as to the “other losses” described in subsection (F).1

This interpretation of § 2259(b)(3) is further supported by the procedures for issuing and enforcing restitution orders. Section 2259(b)(2) expressly incorporates the procedures of 18 U.S.C. § 3664, stating that “[a]n order of restitution under this section shall be issued and enforced in accordance with section 3664 in same manner as an order under section 3663A.”2 Section 3664(e) states unequivocally that “[t]he 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.” (emphasis added).

This language from § 2259(b)(3) and § 3664(e) is consistent with the definition of “victim” in § 2259(c), which is defined to mean “the individual harmed as a result of a commission of crime under this chapter----” (emphasis added). The definition of “victim” reinforces the proximate causation requirement of §§ 2259(b)(3) and 3664(e).

In contrast, the In re Amy panel determined that the definition of victim in § 2259(c) is the statute’s only “built-in causation requirement.” See In re Amy, 636 F.3d at 200. The panel concluded that the clause “as a proximate result of the offense” in § 2259(b)(3) modifies only the “catchall” provision of subsection (F) and not the previous five sub-categories of losses. Id. at 198.

In re Amy’s reading of § 2259(b)(3) is patently inconsistent with the rule of statutory interpretation announced in Porto Rico Railway which makes it clear that the clause is equally applicable to all categories of loss.3 Furthermore, this interpretation of § 2259(b)(3) is directly contrary to the enforcement procedures of § 3664(e) placing the burden of demonstrating the “amount of the loss” sustained by a victim “as a result of the offense” on the government. In re Amy is inexplicably silent about § 3664(e) and its role of supporting § 2259(b)(3)’s requirement of proximate causation.

Thus, the In re Amy panel erred in concluding that § 2259’s only causation requirement is found in the statute’s definition of “victim.” In re Amy supports this conclusion by comparing § 2259(c)’s definition of victim with the definition in the more general mandatory restitution statute, 18 U.S.C. § 3663A, which defines a victim “a person directly and proximately harmed as a result of a commission of an *688offense....” 18 U.S.C. § 3663A(a)(2) (emphasis added). It does not follow, however, from this different definition of “victim” that Congress “abandoned” the proximate causation requirement in § 2259. See In re Amy, 636 F.3d at 200 (“Comparing these statutes reveals that Congress abandoned the proximate causation language....”). The procedures of § 3664(e) — which apply equally to restitution orders under both §§ 2259 and 3663A — clearly contemplate a proximate causation requirement, which is consistent with the express language in both §§ 2259 and 3663A. Thus, Congress did not abandon the causation requirement in § 2259.

Additionally, In re Amy is simply incorrect in its assertion that “the evolution in victims’ rights statutes demonstrates Congress’s choice to abandon a global requirement of proximate causation.” In re Amy, 636 F.3d at 200. The panel based this conclusion on the erroneous determination that comparing § 3663A’s definition of “victim” to § 2259’s definition of the same word “enacted 14 years later” reveals Congress’s evolution toward abandoning proximate causation. Id. at 198-99. In fact, § 2259’s definition of “victim” was enacted two years before § 3663A’s definition of that term, not 14 years after.4 Therefore, if anything, the definition of “victim” in § 3363A evolved toward (and not away from) a firm stance of requiring a showing of proximate causation.5

I completely agree with the In re Amy panel that Amy is a “victim” of the crime of possessing images of her abuse pursuant to the definition of “victim” in § 2259(c) under the reasoning of New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct. 3348, 3355, 73 L.Ed.2d 1113 (1982) and United States v. Norris, 159 F.3d 926, 929 (5th Cir.1998), which recognized the serious harm a child suffers by the distribution and possession of images depicting her abuse. Every other federal court addressing this issue has followed the reasoning of Ferber and Norris in holding that Amy and similar children are “victims.” See, e.g., McDaniel, 631 F.3d at 1208 (“Like the producers and distributors of child pornography, the possessors of child pornography victimize the children depicted within.”) (citing Ferber, 458 U.S. at 759, 102 S.Ct. 3348). As explained further below, all of the circuit and district court cases that have dealt with this issue have started from the premise that these *689children are victims. This is usually not a seriously contested issue and is a given. The difficult issue in all of these cases is determining the amount of the restitution award that should properly be assessed against the single defendant before the court when multiple images — sometimes thousands — have been possessed and distributed to many individuals. This is when the statute’s plain language requiring a showing of proximate cause between the defendant’s conduct and the award is important.

II.

In re Amy’s holding that § 2259 does not limit the victim’s recoverable losses to those proximately caused by defendant’s offense is at odds with the conclusion of every other circuit court considering this issue. In a very similar case involving restitution ordered against a defendant convicted of possessing child pornography, the Eleventh Circuit recently rejected the interpretation of § 2259(b)(3) adopted by In re Amy. McDaniel, 631 F.3d at 1209. The Eleventh Circuit held that “[t]he phrase ‘as a proximate result of the offense’ is equally applicable to medical costs, lost income, and attorneys’ fees as it is to ‘any other losses.’ ” Id. Accordingly, although the court held that the child, “Vicky,” was a “victim” of the defendant’s crime, the court proceeded to evaluate the district court’s restitution order under § 2259(b)(3)’s requirement limiting the victim’s recoverable losses to those proximately caused by the defendant’s offense. Id. Thus, the Eleventh Circuit’s reading of § 2259 is entirely consistent with my reading and is contrary to In re Amy’s interpretation.

The Eleventh Circuit affirmed the district court’s restitution order of $12,700, which constituted only part of Vicky’s overall losses, in light of § 2259(b)(3)’s proximate causation requirement. Id. The court affirmed the award on the basis that the government notified Vicky each time a defendant possessing her images was arrested and that according to the testimony of Vicky’s psychologist, each of these notifications added to the “slow acid drip” of Vicky’s ongoing emotional distress. McDaniel, 631 F.3d at 1209. Thus, the court held that the district court “did not clearly err in finding that McDaniel’s possession proximately caused Vicky’s losses.” Id. (emphasis added).

The Eleventh Circuit cited the Ninth Circuit’s holding in United States v. Laney, 189 F.3d 954, 965 (9th Cir.1999), a case involving a defendant convicted of conspiring to engage in the sexual exploitation of children. The Ninth Circuit held that § 2259 requires “a causal connection between the offense of conviction and the victim’s harm.” Id. at 965. The Ninth Circuit also recently affirmed a restitution order in the amount of $3,000 against a defendant convicted of possessing images of Vicky on the basis that “[t]he United States met its burden of establishing proximate cause by showing how Vicky’s harm was generally foreseeable to casual users of child pornography like Baxter.” United States v. Baxter, 394 Fed.Appx. 377, 378-79 (9th Cir. Sept. 1, 2010) (emphasis added). Baxter affirmed the district court’s grant of the government’s request for a $3,000 award based on the government’s estimate that this amount would cover 18 sessions, or one and one-half years of therapy for Vicky, at one session per month. Id. The court determined that this amount represented a fair and reasonable estimate of the amount of Vicky’s harm caused by the defendant. Id.

These opinions are consistent with the Third Circuit’s opinion in United States v. Crandon, 173 F.3d 122, 126 (3d Cir.1999), in which the court affirmed a restitution *690order against a defendant convicted of receiving child pornography. Id. at 126. The district court had concluded “by a preponderance of the evidence that Crandon’s conduct was the proximate cause of the victim’s losses.” Id. Based on the defendant’s conduct, which the evidence showed had exacerbated the victim’s harm and constituted a “substantial factor in causing the ultimate loss,” the Third Circuit concluded that “the district court did not abuse its discretion in concluding that Crandon’s conduct was the proximate cause of the victim’s losses.” Id. (emphasis added).

The In re Amy opinion does not discuss this substantial circuit authority interpreting § 2259 to require a showing of proximate causation between the defendant’s conduct and the victim’s recoverable losses. Additionally, the In re Amy opinion fails to mention the large number of district court cases that have recently addressed this issue in the context of child pornography possession convictions. Almost all of these cases involve Amy or Vicky. These courts all agree that Amy and Vicky are “victims” of the crime of possessing images portraying their abuse under the definition of “victim” in § 2259 and reasoning of Ferber, 458 U.S. at 759, 102 S.Ct. at 8355, and Norris, 159 F.3d at 929. However, these courts also recognize that “almost every court to have considered causation under § 2259 has found the ‘proximate result’ language in the catchall provision to apply equally to the other enumerated categories of loss, and therefore has held that § 2259 requires a showing of proximate cause.” United States v. Chow, No. 09-CR-165, 760 F.Supp.2d 335, 2010 WL 5608794, 2010 U.S. Dist. LEXIS 140506 (S.D.N.Y. Nov. 22, 2010). Thus, virtually every district court addressing the topic has concluded that § 2259 includes a distinct requirement that the victim’s recoverable losses are limited to those proximately caused by the defendant’s offense. See, e.g., United States v. Hardy, 707 F.Supp.2d 597, 610 (W.D.Pa.2010) (“Given the unanimity of the Circuits that have addressed the question, the language of the statute, and the legislative history of its amendments, this Court finds that 18 U.S.C. § 2259 does require that a victim’s losses be proximately caused by the criminal acts of the defendant for restitution to be awarded.”).6

These district courts have come to different conclusions regarding the amount of restitution owed in light of § 2259’s proximate causation requirement. Some of these courts have ordered no restitution, some have ordered joint and several liability for the total amount of the victim’s losses, and some courts have ordered smaller awards in the general range of *691$3,000 to $5,000.7 The one point that all of these numerous opinions agree on is that the restitution order must be based on evidence of a causal connection between the defendant’s offense and the victim’s losses. These opinions do not rely solely on § 2259(c)’s definition of “victim” to establish the causal requirements of § 2259. I can identify no opinion of a district or circuit court other than In re Amy expressly holding that § 2259 does not limit the victim’s recoverable losses to those proximately caused by the defendant’s offense.

III.

In this case, we should direct the district court to make findings regarding the causal connection between Wright’s offense and any of Amy’s losses that the court orders Wright to pay pursuant to the requirements of § 2259. If the court finds evidence that Wright’s possession of the images was a proximate cause of Amy’s losses, the court has wide discretion to craft a reasonable restitution order reflecting the losses caused by Wright. The district court’s order need not approach “mathematical precision.” See United States v. Doe, 488 F.3d 1154, 1160 (9th Cir.2007). The district court could apportion Wright’s share of Amy’s total losses or render judgment under the joint and several liability provisions of § 3664(h) utilized in some of the above-cited cases. Whatever approach the district court chooses, the court should explain the basis of its award and the order should be constrained by the principle of proximate causation.8

IV.

Finally, I note that the District of Columbia Circuit very recently issued a thorough, well-reasoned opinion that is consistent with this special concurrence. See *692United States v. Monzel, 641 F.3d 528 (D.C.Cir.2011).

For all of the foregoing reasons, this court should follow every other circuit court and virtually every district court considering this issue in holding that § 2259 limits recoverable losses to those proximately caused by the defendant’s offense of conviction. Thus, I recommend that this ease be consolidated with In re Amy and reheard en bane.

I have been authorized to state that Judges KING and SOUTHWICK join in this special concurrence.

. As explained further below, every circuit court and virtually every district court construing § 2259(b)(3) agrees with this reading of the statute in accordance with the rule of Porto Rico Railway. See, e.g., McDaniel, 631 F.3d at 1209 ("The phrase 'as a proximate result of the offense' is equally applicable to medical costs, lost income, and attorneys’ fees as it is to ‘any other losses.’ ”) (citing Porto Rico Railway, 253 U.S. at 348, 40 S.Ct. 516).

. Section 3663A is a more general mandatory restitution statute that was enacted by the Mandatory Victim Restitution Act. See infra n. 4.

. I am not persuaded by In re Amy's attempt to distinguish the statute in Porto Rico Railway on the basis that the sub-categories of § 2259(b)(3) are separated by semi-colons rather than commas. See In re Amy, 636 F.3d at 199. Either punctuation device is an acceptable method of separating clauses. See Bryan A. Garner, The Redbook: A Manual on Legal Style, 1-15 (2d ed. 2006).

. A timeline of federal restitution statutes follows: (1) Congress passed the Victim and Witness Protection Act of 1982 ("VWPA”), Pub.L. 97-291, 1982 S. 2420. The VWPA enacted the discretionary restitution provisions currently codified in § 3663, but did not contain § 3663's current definition of "victim” or the mandatory restitution provisions currently codified in § 3663A; (2) Congress passed the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 1 OS-322, 108 Stat. 1796, 1907-1910, which enacted § 2259, including the current definition of “victim” in § 2259(c); (3) Congress passed the Mandatory Victim Restitution Act ("MVRA”) as part of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104 — 132, 110 Stat. 1214, which amended existing federal restitution laws and procedures. The MVRA added § 3663A to the United States Code and established the current definition of "victim” in §§ 3663A(a)(2) and 3663(a)(2) as "a person directly and proximately harmed as a result of a commission of an offense....” 110 Stat. 1228, 1230.

. This conclusion is further supported by the Crime Victims’ Rights Act ("CVRA”), part of the Justice for All Act of 2004, Pub.L. 108-405, 118 Stat. 2260, which reiterates that crime victims have ”[t]he right to full and timely restitution as provided in law.” 18 U.S.C. § 3771(a)(6). The CVRA provides victims with the mandamus remedy that In re Amy granted. Id. § 3771(d). Like §§ 3663 and 3663A, the CVRA defines a victim as “a person directly and proximately harmed as a result of the commission of a Federal offense____” Id. § 3771(e).

. A representative list of additional cases follows: United States v. Church, 701 F.Supp.2d 814, 825-26 (W.D.Va. April 5, 2010); United States v. Berk, 666 F.Supp.2d 182 (D.Me.2009); United States v. Rowe, No. 1:09-CR-80, 2010 WL 3522257, 2010 U.S. Dist LEXIS 98458 (W.D.N.C. Sept. 7, 2010); United States v. Aumais, No. 08-CR-711, 2010 WL 3033821, 2010 U.S. Dist. LEXIS 78407 (N.D.N.Y. Jan. 13, 2010); United States v. Brunner, No. 5:08-CR-16, 2010 WL 148433, 2010 U.S. Dist. LEXIS 8285 (W.D.N.C. Jan. 12, 2010); United States v. Hicks, No. 1:09-CR-150, 2009 WL 4110260, 2009 U.S. Dist. LEXIS 110253 (E.D.Va. Nov. 24, 2009); United States v. Ferenci, No. 1:08-cr-0414 AWI, 2009 WL 2579102, 2009 U.S. Dist. LEXIS 80339 (E.D.Cal. Aug. 19, 2009); United States v. Renga, 2009 WL 2579103, 2009 U.S. Dist. LEXIS 78144 (E.D.Cal. Aug. 18, 2009). I am aware of only one district court that has ordered restitution against a defendant possessing Amy’s or Vicky's images without discussing proximate causation. United States v. Staples, No. 09-CR-14017, 2009 WL 2827204, 2009 U.S. Dist. LEXIS 81648 (S.D.Fla. Sept. 2, 2009) (ordering joint and several restitution for the full amount of Amy’s losses).

. One of these courts relied on 18 U.S.C. § 3664(h) as authority for ordering joint and several restitution against a defendant possessing and distributing Amy's images. See Hardy, 707 F.Supp.2d at 614-15. A number of these courts have relied on the apportionment provisions of § 3664(h) as authority for issuing smaller or partial awards. The full text of § 3664(h) is as follows: "If the court finds that more than 1 defendant has contributed to the loss of a victim, the court may make each defendant liable for payment of the full amount of restitution or may apportion liability among the defendants to reflect the level of contribution to the victim’s loss and economic circumstances of each defendant.”

. In re Amy cited the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607(a) ("CERCLA”) as an example of joint and several liability. In re Amy, 636 F.3d at 201. The Supreme Court has recognized that the scope of joint and several liability under CERCLA is to be determined by the "principles of common law.” Burlington Northern & Santa Fe Railway Co. v. United States, - U.S. -, 129 S.Ct 1870, 1880-81, 173 L.Ed.2d 812 (2009). Thus, the Court has held that CERCLA joint and several liability is limited by the following general causation principles:

[Wjhen two or more persons acting independently cause a distinct or single harm for which there is a reasonable basis for division according to the contribution of each, each is subject to liability only for the portion of the total harm that he has himself caused. Restatement (Second) of Torts §§ 433, 881; Prosser, Law of Torts, pp. 313-14 (4th ed.1971). But where two or more persons cause a single, indivisible harm, each is subject to liability for the entire harm. Restatement (Second) of Torts, § 875; Prosser, at 315-16. In other words, apportionment is proper when there is a reasonable basis for determining the contribution of each cause to a single harm. Restatement (Second of Torts) § 433A(l)(b), p. 434 (1963-64).

Burlington Northern, 129 S.Ct. at 1881 (internal citation omitted). These same general causation principles should apply to joint and several restitution orders under § 2259.