United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-2752
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Robert M. Fast
lllllllllllllllllllll Defendant - Appellee
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Vicky, Child Pornography Victim
lllllllllllllllllllllInterested party - Appellant
___________________________
No. 12-2769
___________________________
In re: Vicky, Child Pornography Victim
lllllllllllllllllllllPetitioner
___________________________
Appeals from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 15, 2012
Filed: March 11, 2013
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Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
____________
BENTON, Circuit Judge.
Robert M. Fast pled guilty to one count of receiving and distributing child
pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court1 ordered him
to pay $3,333 restitution to Vicky – the pseudonym for the child-pornography victim
whose images were on Fast’s computer – under 18 U.S.C. § 2259. Vicky challenges
the restitution award by direct appeal and in a petition for mandamus.2 She argues
that Fast need not proximately cause the losses defined in subsections 2259(b)(3)(A)
through (E) to be liable for them, and that the district court misinterpreted the “full
amount of [her] losses” under section 2259(b)(1). Because she lacks standing as a
nonparty to bring a direct appeal, this court grants the motions to dismiss by Fast and
the government. Having jurisdiction over her mandamus petition under the Crime
Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), this court denies her petition.
I.
The CVRA grants crime victims, including Vicky, the “right to full and timely
restitution as provided in law.” 18 U.S.C. § 3771(a)(6). The district court must order
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
2
This court granted Vicky’s request to waive the 72-hour statutory deadline for
deciding her mandamus petition. See 18 U.S.C. § 3771(d)(3).
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restitution. Id. § 2259(a), (b)(4)(A). “The language of 18 U.S.C. § 2259 reflects a
broad restitutionary purpose.” In re Amy Unknown, 701 F.3d 749, 760 (5th Cir.
2012) (en banc) (citations omitted); accord United States v. Julian, 242 F.3d 1245,
1247 (10th Cir. 2001). “Restitution” is the “full amount of the victim’s losses as
determined by the court,” including the costs enumerated in subsections
2259(b)(3)(A) through (F). 18 U.S.C. § 2259(b)(1), (3). The district court resolves
“[a]ny dispute as to the proper amount or type of restitution . . . by the preponderance
of the evidence.” Id. § 3664(e). The government bears the “burden of demonstrating
the amount of the loss sustained by a victim as a result of the offense.” Id.
Vicky documents $1,224,697.04 in losses from her sexual abuse and the
distribution of the pornographic images. Before Fast’s sentencing, she sought
$952,759.81 restitution (having previously collected $271,937.23 from other
defendants). The government initially requested “at least $10,000” restitution. The
district court ruled that Fast need not have proximately caused the losses defined in
subsections 2259(b)(3)(A) through (E) to be liable for them. United States v. Fast,
820 F. Supp. 2d 1008, 1010 (D. Neb. 2011). The court initially ordered Fast to pay
$19,863.84 restitution. Id. On appeal, the government agreed with Fast that
proximate cause is required. This court remanded to the district court to reconsider
Vicky’s restitution award (denying her motion to intervene as moot). United States
v. Fast, No. 11-3455, at *1 (8th Cir. May 15, 2012).
On remand, the district court determined “that proximate cause is required for
each element of restitution under 18 U.S.C. § 2259.”3 United States v. Fast, 876 F.
Supp. 2d 1087, 1088 (D. Neb. 2012). It found Fast liable for losses accrued after
June 25, 2010 — when he began committing the crime. Id. at 1089. The district
court concluded that Fast “proximately caused harm to ‘Vicky’ that directly resulted
3
On remand, the district court denied as untimely Vicky’s motion to intervene.
She does not appeal that ruling.
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in compensable injury and damage to her in the sum of $3,333.” Id. at 1090. This
amount consisted of “$2,500 for medical and psychiatric care, occupational therapy,
and lost income under 18 U.S.C. § 2259(b)(3)(A), (B), & (D),” and $833 for “attorney
fees and costs under 18 U.S.C. § 2259(b)(3)(E).” Id. at 1088.
II.
Fast and the government move to dismiss Vicky’s direct appeal of the
restitution order, arguing that she lacks standing because she is not a party to the case.
“Standing is a fundamental element of federal court jurisdiction.” Curtis v. City of
Des Moines, 995 F.2d 125, 128 (8th Cir. 1993), citing Sierra Club v. Morton, 405
U.S. 727, 732 (1972). Those failing to “intervene or otherwise attain party status may
not appeal a district court’s judgment.” Id. (citation omitted). “[A]ll Courts of
Appeals to have addressed this issue have concluded that nonparties cannot directly
appeal a restitution order entered against a criminal defendant.” United States v.
Stoerr, 695 F.3d 271, 277 (3d Cir. 2012) (citations omitted); see In re Amy
Unknown, 701 F.3d at 756; United States v. Alcatel-Lucent France, SA, 688 F.3d
1301, 1307 (11th Cir. 2012) (per curiam); United States v. Monzel, 641 F.3d 528, 542
(D.C. Cir.), cert. denied, 132 S. Ct. 756 (2011); United States v. Aguirre-Gonzalez,
597 F.3d 46, 53-55 (1st Cir. 2010); In re Acker, 596 F.3d 370, 373 (6th Cir. 2010)
(per curiam); United States v. Hunter, 548 F.3d 1308, 1315-16 (10th Cir. 2008);
United States v. United Sec. Sav. Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per
curiam); United States v. Mindel, 80 F.3d 394, 398 (9th Cir. 1996); United States v.
Grundhoefer, 916 F.2d 788, 793 (2d Cir. 1990); see also United States v. Laraneta,
700 F.3d 983, 986 (7th Cir. 2012) (finding “no quarrel” with the result that “a crime
victim cannot appeal from a denial of restitution in a criminal case because the victim
is not a party”).
Vicky did not successfully intervene, and the CVRA does not grant her party
status. The CVRA grants the government the right to assert a victim’s rights on direct
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appeal, 18 U.S.C. § 3771(d)(4), and details when a victim may re-open a plea or
sentence through a motion, id. § 3771(d)(5); see Hunter, 548 F.3d at 1315-16
(“[Section 3771(d)(5)] makes no mention of a direct appeal.”). The CVRA grants a
victim the right to petition for mandamus. 18 U.S.C. § 3771(d)(3). “Nothing in this
chapter shall be construed to impair the prosecutorial discretion of the Attorney
General or any officer under his direction.” Id. § 3771(d)(6). Allowing victims to
appeal would “erode the CVRA’s attempt to preserve the Government’s discretion.”
In re Unknown, 701 F.3d at 757; accord Hunter, 548 F.3d at 1316. “That Congress
included these provisions but did not provide for direct appeals by crime victims is
strong evidence that it did not intend to authorize such appeals.” Monzel, 641 F.3d
at 542 (emphasis in original) (“[T]he CVRA’s ‘carefully crafted and detailed
enforcement scheme provides strong evidence that Congress did not intend to
authorize other remedies that it simply forgot to incorporate expressly.’” (emphasis
in original), quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 254 (1993) (internal
quotation marks omitted)). The CVRA does not allow Vicky to appeal directly.
Vicky invokes 28 U.S.C. § 1291. But “§ 1291’s broad jurisdictional grant does
not permit us to ignore the requirement that the appellant have standing to appeal.”
Stoerr, 695 F.3d at 277 n.5 (citation omitted). Vicky cites several cases where courts
have heard non-party appeals. None, except United States v. Kones, 77 F.3d 66, 68
(3d Cir. 1996), allowed a non-party appeal that would alter a defendant’s sentence.
See Monzel, 641 F.3d at 542-43. A criminal restitution order is part of a defendant’s
sentence. Id. at 541; see United Sec. Sav. Bank, 394 F.3d at 567. “A crime victim
does not have standing to appeal a district court’s restitution order.” United Sec. Sav.
Bank at 567; Aguirre-Gonzalez, 597 F.3d at 54 (“[C]rime victims have no right to
directly appeal a defendant’s criminal sentence . . . .”).
In Kones, “a purported victim sought to appeal the district court’s conclusion
that she was not entitled to restitution.” Stoerr, 695 F.3d at 277 n.5, citing Kones, 77
F.3d at 68. “Without addressing the purported victim’s standing to appeal, [the Third
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Circuit] noted in one sentence that [it] had appellate jurisdiction under 28 U.S.C. §
1291.” Id., citing Kones, 77 F.3d at 68. The Third Circuit later held that it was not
“bound by the bald jurisdictional statement in Kones” — a “‘drive-by jurisdictional
ruling[ ],’ in which jurisdiction ‘ha[s] been assumed by the parties, and . . . assumed
without discussion by the [c]ourt,’ does not create binding precedent.” Id.
(alterations in original), quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
91 (1998); see Monzel, 641 F.3d at 541 n.13.
In the Curtis case, this court allowed nonparties to appeal because they had “an
interest in the cause litigated and participated in the proceedings actively enough to
make [them] privy to the record . . . [even though] [they] w[ere] not named in the
complaint and did not intervene.” Curtis, 995 F.2d at 128 (second alteration in
original) (omission in original) (citation and internal quotation marks omitted).
Curtis, unlike here, was a civil case and did not alter the defendant’s sentence.
Vicky argues that because the CVRA grants victims the “right” to restitution,
see 18 U.S.C. § 3771(a)(6), she has an “injury” that gives her standing to appeal. But
see United Sec. Sav. Bank, 394 F.3d at 567 (“The direct, distinct, and palpable injury
in a criminal sentencing proceeding plainly falls only on the defendant who is being
sentenced.”). But granting victims a right to restitution neither makes them a party
to the case, nor gives them a right to appeal. See, e.g., Aguirre-Gonzalez, 597 F.3d
at 53 (“Notwithstanding the rights reflected in the restitution statutes, crime victims
are not parties to a criminal sentencing proceeding . . . [and] may not appeal a
defendant’s criminal sentence.” (internal citations and citations omitted)). “[T]he
CVRA expressly identifies the avenues of appellate review of a district court’s denial
of restitution . . . and neither of those avenues entitles a crime victim to direct
appeal.” Alcatel-Lucent France, SA, 688 F.3d at 1306; see also Transamerica
Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 19 (1979) (“[W]here a statute
expressly provides a particular remedy or remedies, a court must be chary of reading
others into it.”); see also Aguirre-Gonzalez, 597 F.3d at 54 (“The Federal Rules of
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Civil Procedure allow non-parties to intervene to assert their rights. The Federal
Rules of Criminal Procedure contain no comparable provision.” (citation omitted)).
Vicky cites additional cases where a non-party crime victim was allowed to
appeal.4 See United States v. Yielding, 657 F.3d 722, 726 n.2 (8th Cir. 2011)
(holding the nonparty had “standing to appeal” because “it [was] bound or adversely
affected by an injunction”); In re Siler, 571 F.3d 604, 608-09 (6th Cir. 2009)
(allowing nonparties to appeal the use of a presentencing report in a civil suit);
United States v. Perry, 360 F.3d 519, 523-24 (6th Cir. 2004) (allowing a non-party
victim to appeal an order vacating a lien securing her restitution award); Doe v.
United States, 666 F.2d 43, 45-46 (4th Cir. 1981) (allowing a non-party victim to
appeal the use of sexual history evidence). “But none of the cases she cites involved
a request by a victim to alter a defendant’s sentence.” See Monzel, 641 F.3d at 543;
accord Aguirre-Gonzalez, 597 F.3d at 54; Hunter, 548 F.3d at 1314.
Vicky cites several cases that allowed other nonparties to appeal in criminal
cases. See United States v. Antar, 38 F.3d 1348,1355-56 (3d Cir. 1994) (permitting
the press to appeal a district court order sealing a voir dire transcript); In re
Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d
1559, 1561 (11th Cir. 1989) (allowing the press to appeal the scope of a closure
order); Anthony v. United States, 667 F.2d 870, 878 (10th Cir. 1982) (allowing
4
Vicky also cites a letter from Senator Jon Kyl to the U.S. Justice Department,
stating that the CVRA was “not intended to block crime victims from taking an
ordinary appeal from an adverse decision affecting their rights (such as a decision
denying restitution) under 28 U.S.C. § 1291.” Letter from Senator Jon Kyl to
Attorney Gen. Eric Holder (June 6, 2011), reprinted in 157 Cong. Rec. S3609
(June 8, 2011). Statements made after a statute’s enactment are “not a legitimate tool
of statutory interpretation.” Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081 (2011);
see Stoerr, 695 F.3d at 280 n.7 (“[A] statement by an individual senator does not
‘amend the clear and unambiguous language of a statute.’” (quoting Barnhart v.
Sigmon Coal Co., 534 U.S. 438, 457 (2002))).
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appeal of discovery rulings); United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir.
1980) (allowing appeal of an order unsealing documents found during a search);
United States v. Briggs, 514 F.2d 794, 799 (5th Cir. 1974) (exercising jurisdiction
over an appeal by unindicted co-conspirators challenging an order refusing to strike
their names from the indictment). These “appeals all related to specific trial issues
and did not disturb a final judgment.” Hunter, 548 F.3d at 1314; see In re Amy
Unknown, 701 F.3d at 756 (“[These cases] allowed non-parties to appeal discrete
pre-trial issues . . . unrelated to the merits of the criminal cases from which they
arose.” (citations omited)).
Vicky claims that jurisdiction is nonetheless proper under the collateral order
doctrine. See Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009).
“[U]nder the collateral order doctrine, prejudgment appellate review is allowed in a
criminal case for trial court orders which [(1)] conclusively determine the disputed
question, [(2)] resolve an important issue completely separate from the merits of the
action, and [(3)] are effectively unreviewable on appeal from final judgment.” United
States v. Ivory, 29 F.3d 1307, 1311 (8th Cir. 1994). She fails the second prong
“because the issue of restitution is part and parcel of the criminal sentence.” Alcatel-
Lucent France, AS, 688 F.3d at 1305 n.1. She also fails the third prong because the
CVRA permits the government to appeal (and, as discussed below, allows her to
petition for mandamus). See 18 U.S.C. § 3771(d)(3)-(4). Because Vicky lacks
standing, the motions to dismiss her direct appeal are granted. She may proceed only
by mandamus. Id. § 3771(d)(3).
III.
According to Fast and the government, the traditional standard for mandamus
applies, requiring Vicky to show that (1) she lacks “adequate alternative means” to
obtain relief, (2) her right to “issuance of the writ is clear and indisputable,” and (3)
“the writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Court for
-8-
Dist. of Columbia, 542 U.S. 367, 380-81 (2004) (internal citations, citations, and
internal quotation marks omitted); Kreditverein der Bank Austria Creditanstalt für
Niederösterreich und Bergenland v. Nejezchleba, 477 F.3d 942, 948 (8th Cir. 2007),
citing Mallard v. U.S. Dist. Ct. for the Dist. of Iowa, 490 U.S. 296, 309 (1989).
Vicky urges this court to apply the standard of review for a direct appeal.
The CVRA states:
If the district court denies the relief sought, the movant may petition the
court of appeals for a writ of mandamus. The court of appeals may issue
the writ on the order of a single judge . . . . The court of appeals shall
take up and decide such application forthwith within 72 hours after the
petition has been filed. . . . If the court of appeals denies the relief
sought, the reasons for the denial shall be clearly stated on the record in
a written opinion.
18 U.S.C. § 3771(d)(3). That a court must “take up and decide” the petition within
72 hours “says nothing about the standard of review.” Monzel, 641 F.3d at 533-34;
accord In re Amy Unknown, 701 F.3d at 758 n.6. Rather, “[t]he very short timeline
in which appellate courts must act, and the fact that a single circuit judge may rule on
a petition, confirm the conclusion that Congress intended” the traditional standard for
mandamus to apply. In re Amy Unknown, 701 F.3d at 758; In re Antrobus, 519 F.3d
1123, 1130 (10th Cir. 2008) (“It seems unlikely that Congress would have intended
de novo review in 72 hours of novel and complex legal questions . . . .”).
“That Congress called for ‘mandamus’ strongly suggests it wanted
‘mandamus.’” Monzel, 641 F.3d at 533, citing Morissette v. United States, 342 U.S.
246, 263 (1952); In re Acker, 596 F.3d at 372. Had Congress intended an ordinary
appellate standard of review, it could have given victims a right to direct appeal. See
In re Antrobus, 519 F.3d at 1129, citing 18 U.S.C. § 3771(d)(4). “That Congress
expressly provided for ‘mandamus’ in § 3771(d)(3) but ordinary appellate review in
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§ 3771(d)(4) invokes ‘the usual rule that when the legislature uses certain language
in one part of the statute and different language in another, the court assumes
different meanings were intended.” Monzel, 641 F.3d at 533, citing Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9 (2004).
Vicky argues that applying the traditional standard for mandamus renders
superfluous the right to petition for mandamus under the CVRA, because the All
Writs Act, 28 U.S.C. § 1651, already grants that right. But the CVRA, unlike the All
Writs Act, requires the court to “take up and decide” the petition within 72 hours and
to issue a “written opinion” if it denies relief. See 18 U.S.C. § 3771(d)(3). Thus, the
CVRA affords victims “more rights than they would otherwise have.” In re
Antrobus, 519 F.3d at 1129-30.
Vicky claims four circuits support her position. With little discussion, the
Second Circuit opined, “It is clear . . . that a petitioner seeking relief pursuant to the
[CVRA’s] mandamus provision . . . need not overcome the hurdles typically faced by
a petitioner . . . .” In re W.R. Huff Asset Mgmt. Co., LLC, 409 F.3d 555, 562 (2d
Cir. 2005). The Ninth Circuit stated, “The CVRA creates a unique regime that does,
in fact, contemplate routine interlocutory review of district court decisions denying
rights asserted under the statute.” Kenna v. U.S. Dist. Court for C.D. Cal., 435 F.3d
1011, 1017 (9th Cir. 2006). Without needing to reach the issue, the Third Circuit
commented that “mandamus relief is available under a different, and less demanding,
standard under 18 U.S.C. § 3771 in the appropriate circumstances.” In re Walsh, 229
Fed. Appx. 58, 60 (3d Cir. 2007) (per curiam) (unpublished). The Eleventh Circuit
simply granted the writ without discussing any standard. See In re Stewart, 552 F.3d
1285, 1288-89 (11th Cir. 2008) (per curiam). But see In re Stewart, 641 F.3d 1271,
1274-75 (11th Cir. 2011) (per curiam) (questioning the prior ruling). These
decisions, lacking detailed analysis, are unpersuasive. See In re Amy Unknown, 701
F.3d at 758 n.6 (“The lack of reasoning . . . fails to convince us that anything other
than traditional mandamus standards [apply].”); In re Antrobus, 519 F.3d at 1128
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(“With respect to our sister circuits, and aware of the time pressures under which they
operated, we see nothing in their opinions explaining why Congress chose to use the
word mandamus rather than the word appeal.” (emphases in original)).
This court therefore applies the traditional standard for mandamus. “The
issuance of a writ of mandamus is an extraordinary remedy reserved for extraordinary
situations.” In re MidAmerican Energy Co., 286 F.3d 483, 486 (8th Cir. 2002) (per
curiam), citing Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289
(1988). “‘[O]nly exceptional circumstances amounting to a judicial usurpation of
power will justify the invocation of this extraordinary remedy.’” In re Amy
Unknown, 701 F.3d at 757 (alteration in original), quoting Kerr v. U.S. Dist. Court
for N. Dist. of Cal., 426 U.S. 394, 402 (1976). “Issuance of the writ is largely a
matter of discretion . . . .” Id. at 757, citing Schlagenhauf v. Holder, 379 U.S. 104,
112 n.8 (1964).
Vicky meets the first traditional condition for mandamus – no adequate
alternative means to obtain relief – because mandamus is her only avenue for relief.
See Cheney, 542 U.S. at 380-81 (“[The first] condition [is] designed to ensure that the
writ will not be used as a substitute for the regular appeals process.” (citation
omitted)). She must show that the district court clearly and indisputably erred in the
restitution amount it awarded her, and, if so, that the writ is appropriate.
IV.
Vicky argues that, to be liable, Fast need not have proximately caused the
losses defined in subsections 2259(b)(3)(A) through (E). This court reviews de novo
the district court’s interpretation of section 2259. United States v. Schmidt, 675 F.3d
1164, 1167 (8th Cir. 2012). All but one circuit court to have addressed the issue read
subsections 2259(b)(3)(A) through (E) to require proof of proximate cause.
Laraneta, 700 F.3d at 990; United States v. Burgess, 684 F.3d 445, 459 (4th Cir.
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2012); United States v. Kearney, 672 F.3d 81, 95-96, 99 (1st Cir. 2012); United
States v. Evers, 669 F.3d 645, 659 (6th Cir. 2012); United States v. Aumais, 656 F.3d
147, 153 (2d. Cir. 2011); Monzel, 641 F.3d at 536-37; United States v. McDaniel,
631 F.3d 1204, 1208-09 (11th Cir. 2011); United States v. Laney, 189 F.3d 954, 965
(9th Cir. 1999); United States v. Crandon, 173 F.3d 122, 125-26 (3d Cir. 1999).
Contra, In re Amy Unknown, 701 F.3d at 762, 773 (interpreting subsections
2259(b)(3)(A) through (E) not to require proof of proximate cause). “The ‘clear and
indisputable’ test is applied after” the court construes the statute. Gov’t of Virgin
Islands v. Douglas, 812 F.2d 822, 832 n.10 (3d Cir. 1987); see In re Wickline, 796
F.2d 1055, 1056-57 (8th Cir. 1986).
Section 2259 defines the “full amount of the victim’s losses” as including costs
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.
18 U.S.C. § 2259(b)(3) (emphasis added). Vicky claims that only the losses in the
last subsection require proof of proximate cause. She invokes the “rule of the last
antecedent” to conclude that the limiting clause – “as a proximate result of the
offense” – in the last item of a series modifies only that last item. See Cincinnati Ins.
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Co. v. Bluewood, Inc., 560 F.3d 798, 803 (8th Cir. 2009), quoting Barnhart v.
Thomas, 540 U.S. 20, 26 (2003). “The rule of the last antecedent, however, ‘is not
an absolute and can assuredly be overcome by other indicia of meaning.’” United
States v. Hayes, 555 U.S. 416, 425-26 (2009), quoting Barnhart, 540 U.S. at 26.
Fast and the government counter with the canon: “When several words are followed
by a clause which is applicable as much 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.” McDaniel, 631 F.3d at 1209 (internal quotation marks omitted), quoting Porto
Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920) (finding “[n]o
reason” why the clause at issue “should not be read as applying to” all preceding
phrases); see also Fed. Mar. Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 734
(1973) (“It is . . . a familiar canon of statutory construction that [catchall] clauses are
to be read as bringing within a statute categories similar in type to those specifically
enumerated.” (citation omitted)).
Neither canon is absolute. See Barnhart, 540 U.S. at 26, 28-29; Porto Rico
Ry., Light & Power Co., 253 U.S. at 348. More persuasive here is the Second
Circuit’s reasoning in United States v. Hayes, 135 F.3d 133, 137-38 (2d Cir. 1998).
There, the statute at issue, section 2264(b)(3), is identical to section 2259(b)(3),
except that its subsection (E) reads: “attorneys’ fees, plus any costs incurred in
obtaining a civil protection order.” Hayes, 135 F.3d at 137, quoting 18 U.S.C. §
2264(b)(3). The Second Circuit held, “Reading [subs]ection 2264(b)(3)(E) together
with [subs]ection 2264(b)(3)(F), attorneys’ fees and costs of obtaining a protection
order are among the ‘losses suffered by the victim as a proximate result of the
offense.’” Id. at 138 (emphasis added) (citations omitted). Vicky interprets Hayes
to mean that “the losses listed in subsections (A)-(E) are automatically . . .
proximately caused by the defendant’s conduct.” Rather, the Second Circuit held that
section 2264(b)(3) “authorizes restitution” for the specific losses in subsections
2264(b)(3)(A) through (E). See id. (emphasis added). The “proximate result” clause
in the last subsection 2264(b)(3)(F) shows that Congress considered the costs in
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subsections 2264(b)(3)(A) through (E) “among the losses that are proximately caused
by the offense,” but that causation still must be proved in each case. See id.
Similarly, the First Circuit – interpreting section 2259 at issue here – reasoned
that the “express inclusion [of the specific losses in subsections 2259(b)(3)(A)
through (E)] . . . indicates that Congress believed such damages were sufficiently
foreseeable to warrant their enumeration in the statute.” Kearney, 672 F.3d at 97; see
United States v. Gamble, –– F.3d ––– , –––, 2013 WL 692512, at *6 (6th Cir. Feb.
27, 2013) (“[T]he list of recoverable losses that the statute provides confirms the
breadth of what is a foreseeable consequence of defendants’ actions.”). That section
2259 enumerates those losses “bears emphasis because at the same time Congress
enacted § 2259, it enacted another restitution statute that did not enumerate categories
of losses.” Kearney, 672 F.3d at 97. Instead, that statute “stated that ‘the term “full
amount of the victims losses” means all losses suffered by the victim as a proximate
result of the offense.’” Id. (footnote omitted), quoting Pub. L. 103-322, § 250002,
108 Stat. 2082, 2083 (codified at 18 U.S.C. § 2327(b)(3)). Contrary to Vicky’s
assertion, the variation among these restitution statutes does not mean that Congress
eliminated the proximate cause requirement for the specifically enumerated losses in
subsections 2259(b)(3)(A) through (E). Rather, variances among these restitution
statutes “demonstrate that Congress viewed particular offenses as causing foreseeable
risks of certain losses [meriting enumeration] in the[se] [restitution] statutes.” Id. at
97 n.13. The First Circuit concluded that, although Congress determined that
restitution offenses foreseeably cause the losses in subsections (A) through (E), the
defendant – to be liable – still must proximately cause the victim’s losses. See id. at
95-97, 99-100 (holding “that the proximate cause requirement was satisfied . . .
because [the defendant’s] actions resulted in identifiable losses as outlined in the
expert reports and Vicky’s victim impact statements” (footnote and citation omitted)).
This court agrees. Congress determined that these restitution offenses typically
proximately cause the losses enumerated in subsections 2259(b)(3)(A) through (E).
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Congress did not mean that a specific defendant automatically proximately causes
those losses in every case. The government still has to prove that the defendant
proximately caused those losses. See 18 U.S.C. § 2259(a), (b)(3)(A)-(F), (c)
(“‘[V]ictim’ means the individual harmed as a result of a commission of a crime
under this chapter” (emphasis added)); id. § 3664(e); Laraneta, 700 F.3d at 990-92;
Kearney, 672 F.3d at 95-97.5
V.
Vicky contends that the district court failed to award her the statutorily
mandated “full amount of [her] losses.” See 18 U.S.C. § 2259(b)(1). Because
issuance of the writ of mandamus is an extraordinary remedy, she must show that the
district court clearly and indisputably erred. Restitution is mandatory under section
2259. Id. § 2259(a), (b)(4)(A). The restitution order “shall be issued and enforced
in accordance with section 3664.” Id. § 2259(b)(2). Under that section, “[a]ny
dispute as to the proper amount or type of restitution shall be resolved by the court
by the preponderance of the evidence.” Id. § 3664(e) (emphasis added). The
government bears the “burden of demonstrating the amount of the loss sustained by
a victim as a result of the offense.” Id.
“[I]njury to the child depicted in the child pornography . . . is a readily
foreseeable result of distribution and possession of child pornography.” Kearney,
672 F.3d at 97 (emphasis added). Proving proximate cause may require nothing more
than “expert reports and . . . victim impact statements” about the costs enumerated in
subsections (A) through (E) that the victim incurred after the defendant’s offense
began. See, e.g., id. at 96-100 (discussing proximate cause). Determining the “full
5
See also S. Rep. No. 103-138, at 56 (1993) (noting that “section [2259]
requires sex offenders to pay costs incurred by victims as a proximate result of a sex
crime” (emphasis added)).
-15-
amount of the victim’s losses” that a defendant’s offense caused is best left to the
district court in the first instance. See 18 U.S.C. § 2259(b)(1) (“[T]he defendant
[shall] pay . . . the full amount of the victim’s losses as determined by the court . . .
.” (emphasis added)); Laraneta, 700 F.3d at 991; Burgess, 684 F.3d at 460; United
States v. McGarity, 669 F.3d 1218, 1270 (11th Cir. 2012).
Vicky claims the restitution award should be $952,759.81 — her (net)
documented losses to date. Fast did not possess any images of her until June 25,
2010. But she suffered losses before then. See, e.g., McDaniel, 631 F.3d at 1206.
As the district court found, Fast could not have caused – and thus could not be liable
for – losses before that date. See Gamble, –– F.3d at ––– , 2013 WL 692512, at *11
(“As a logical matter, a defendant generally cannot cause harm prior to the date of his
offense.”); Kearney, 672 F.3d at 97 (“Vicky’s [harms] . . . were reasonably
foreseeable at the time of [the defendant’s] conduct.” (emphasis added)).
Vicky cites Hayes, where the defendant was liable for the victim’s costs in
obtaining civil protection orders even though the offense – violating the protection
orders by crossing state lines – occurred after the victim incurred the costs. Hayes,
135 F.3d at 137-38. Although the triggering offense occurred after the victim
incurred the costs, they were “a result of conduct by [the defendant] extending back
to the time [the victim] obtained the . . . protection orders.” Id. at 138. Here, Vicky
did not incur losses as a result of Fast’s conduct before his offense began.
Moreover, all $952,759.81 of Vicky’s losses are not clearly and indisputably
traceable to Fast’s crime.6 See Monzel, 641 F.3d at 538 (“[W]e [cannot] say that [the
6
Vicky argues that the district court should have held Fast jointly and severally
liable for the full amount of her losses. Then, she asserts, he could seek contribution
from other defendants liable to her. Section 3664 states, “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
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victim] is clearly and indisputably entitled to the full $3,263,758 from [the defendant]
on the ground that her injuries are ‘indivisible.’”); see also Burgess, 684 F.3d at 460
(“The primary difficulty that will face the district court . . . will be the determination
. . . of the quantum of loss attributable to [the defendant] for his participation in
Vicky’s exploitation.”). “The government has not shown that [Fast] caused the
entirety of [Vicky’s] losses.” Monzel, 641 F.3d at 538 (emphasis in original); see 18
U.S.C. § 3664(e). The court did not clearly and indisputably err in not awarding
Vicky $952,759.81 restitution.
The district court ordered Fast to pay $3,333 restitution. The court explained
that this award consists of “$2,500 for medical and psychiatric care, occupational
therapy, and lost income under 18 U.S.C. § 2259(b)(3)(A), (B), & (D),” and $833 for
“attorney fees and costs under 18 U.S.C. § 2259(b)(3)(E).” It reasoned that $3,333
represents the total amount of loss Fast proximately caused Vicky. The court fulfilled
its duty to award Vicky the “full amount of [her] losses.” See id. § 2259(a), (b)(1)
(“[T]he court shall order restitution . . . [and] the defendant [shall] pay . . . the full
amount of the victim’s losses as determined by the court.”); id. § 2259(c) (“‘[V]ictim’
means the individual harmed as a result of a commission of a crime under this
chapter.”); see also Kerr, 426 U.S. at 402 (“[T]he writ [of mandamus] has
traditionally been used in the federal courts only to confine an inferior court to a
lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority
liability among the defendants to reflect the level of contribution to the victim’s loss
and economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Because
“there is only one defendant in this case,” section 3664(h) does not apply. E.g.,
Laraneta, 700 F.3d at 992-93; Aumais, 656 F.3d at 156 (“Section 3664(h) implies
that joint and several liability may be imposed only when a single district judge is
dealing with multiple defendants in a single case . . . .”); see Gamble, –– F.3d at –––,
2013 WL 692512, at *6 (rejecting joint-and-several liability and contribution partly
because “in this context a contribution system would be ‘extraordinarily clumsy’”
(quoting Laraneta, 700 F.3d at 993)).
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when it is its duty to do so.” (citation and internal quotation marks omitted)). The
court did not clearly and indisputably err in ordering Fast to pay $3,333 restitution.
*******
The motions to dismiss Vicky’s direct appeal are granted. The petition for
mandamus is denied.
SHEPHERD, Circuit Judge, concurring in part and dissenting in part.
I concur with respect to sections I, II, and III of the majority’s opinion. I
dissent with respect to sections IV and V, and with respect to the judgment, because
I would follow the Fifth Circuit’s approach and hold that only damages awarded
under 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate cause requirement. See
In re Amy Unknown, 701 F.3d 749, 752 (5th Cir. 2012) (en banc). Consequently, I
would grant Vicky’s petition for mandamus relief and remand for the district court
to recalculate her losses.
I.
As the majority correctly explains, Vicky is entitled to mandamus relief if she
can show three things: (1) she has “no adequate alternative means to obtain relief,”
(2) “the district court clearly and indisputably erred in the restitution amount it
awarded her,” and (3) “the writ is appropriate.” Supra at 11 (citing Cheney v. U.S.
Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81(2004)). I agree with the
majority that the first element is satisfied here because mandamus is the only potential
relief available to Vicky. See supra at 11. However, the majority goes on to conclude
that Vicky is not entitled to a writ of mandamus because her “losses are not clearly
and indisputably traceable to Fast’s crime.” Supra at 16. This is based on the
majority’s conclusion that all losses under section 2259 are subject to a proximate
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cause requirement. See supra at 15-17. Because I disagree with this interpretation
of the statute, I respectfully dissent.
A.
Section 2259 requires courts to order “the defendant to pay the victim . . . the
full amount of the victim’s losses . . . .” 18 U.S.C. § 2259(b)(1). The statute defines
“victim” as “the individual harmed as a result of a commission of a crime under this
chapter . . . .” 18 U.S.C. § 2259(c). The statute also provides:
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.
18 U.S.C. § 2259(b)(3).
In In re Amy Unknown, the Fifth Circuit concluded that the plain language of
section 2259 imposes a proximate cause requirement only on losses awarded under
subsection (b)(3)(F). 701 F.3d at 762. The court reasoned that the rule of the last
antecedent, a well-established rule of statutory construction, “instructs that ‘a limiting
clause or phrase,’ such as the ‘proximate result’ phrase in § 2259(b)(3)(F), ‘should
ordinarily be read as modifying only the noun or phrase that it immediately follows.’”
Id. (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)). Significantly, the Supreme
Court applied the rule of the last antecedent in two recent cases. Id. at 764 (analyzing
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Barnhart, 540 U.S. 20 and Jama v. Immigration & Customs Enforcement, 543 U.S.
335 (2005)). Because “[t]he structure and language of § 2259(b)(3) limit the phrase
‘suffered by the victim as a proximate result of the offense’ in § 2259(b)(3)(F) to the
miscellaneous ‘other losses’ contained in that subsection,” and because there is “no
‘other indicia of meaning’ in the statute to suggest that the rule of the last antecedent
does not apply here,” the court found that losses in subsections (A)-(E) are not subject
to a proximate cause requirement. Id. at 762.
Thus, under the Fifth Circuit’s approach, as long as losses in subsections (A)-
(E) are incurred “as a result of a commission of a crime under this chapter,”
§ 2259(c), a district court must award victims “the full amount” of their losses under
section 2259(b)(1), regardless of whether the defendant proximately caused those
losses. See In re Amy Unknown, 701 F.3d at 762. Only miscellaneous “other losses”
are subject to a proximate cause requirement. Id.
This, of course, does not mean that the statute imposes no causal requirement
at all. As explained above, section 2259 defines “victim” as “the individual harmed
as a result of a commission of a crime under this chapter,” § 2259(c), and then
requires courts to order restitution for “the full amount of the victim’s losses,”
§ 2259(b)(1). Thus, before a court can order restitution, it must determine that (1) the
defendant committed a qualifying offense and (2) the person seeking restitution
suffered harm as a result of that offense. See § 2259. To the extent that the harm
resulting from the offense involves medical services, therapy or rehabilitation,
transportation, temporary housing, child care, lost income, or attorneys’ fees and costs
under subsections (A)-(E), a defendant must pay restitution for the full amount of
those harms, regardless of whether the defendant proximately caused them. Congress
likely chose not to impose a proximate cause requirement for these types of losses
because proving proximate causation would be virtually impossible in many
situations, thus leaving child victims without redress.
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The concept of causation in cases under section 2259 admittedly is
complicated. A defendant’s action is a “cause” of a victim’s injury if that action
somehow contributed to the injury. See Black’s Law Dictionary 250 (9th ed. 2009)
(defining “cause”). This general definition of cause is expansive. For example, a
victim whose images have been made widely available through posting on the
internet may incur significant counseling expenses to address psychological problems
stemming from the knowledge that numerous7 unknown people are viewing the
images. Each individual defendant who views those images is a “cause” of that harm
because, if no one viewed the images, the victim arguably would not have suffered
that particular form of psychological harm. See In re Amy Unknown, 701 F.3d at 773
(“By possessing, receiving, and distributing child pornography, defendants
collectively create the demand that fuels the creation of the abusive images. Thus,
where a defendant is convicted of possessing, receiving, or distributing child
pornography, a person is a victim under this definition if the images . . . include those
of that individual.”).
In contrast, “proximate cause” involves more of a policy judgment about
whether a particular defendant’s action bears a sufficient causal relationship to an
injury such that the law should hold the defendant liable for the injury. See Black’s
Law Dictionary 250 (9th ed. 2009) (defining “proximate cause” and noting that
“[s]ome boundary must be set to liability for the consequences of any act, upon the
basis of some social idea of justice or policy” (internal quotation marks omitted)). On
one end of the spectrum is the example above, where the victim’s psychological
problems are “caused” by innumerable unknown defendants. In this situation, the
causal link between a specific defendant’s conduct and the victim’s losses is more
tenuous because it would be virtually impossible to show that the victim’s
7
According to the Sixth Circuit, approximately 300 defendants already have
been convicted of possessing Vicky’s images. United States v. Gamble, Nos. 11-
5394/5544, slip op. at 19 (6th Cir. Feb. 27, 2013).
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psychological trauma and attendant counseling expenses would have been any less
had that individual defendant not viewed the images. In other words, it is unclear
whether the victim could prove that an individual defendant “proximately caused” his
or her losses. Compare United States v. Aumais, 656 F.3d 147, 154 (2d Cir. 2011)
(finding no proximate cause when evidence showed defendant was one of many who
viewed victim’s images, but victim “‘had no direct contact with [the defendant] nor
even knew of his existence’”) and United States v. Kennedy, 643 F.3d 1251, 1264
(9th Cir. 2011) (holding that while evidence which “showed only that [the defendant]
participated in the audience of persons who viewed the images . . . may be sufficient
to establish that [the defendant’s] actions were one cause of the generalized harm” to
the victims, “it is not sufficient to show that [the defendant was] a proximate cause
of any particular losses”), with United States v. Kearney, 672 F.3d 81, 99 (1st Cir.
2012) (“We reject the theory that the victim of child pornography could only show
[proximate] 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.”) and United States v. Burgess, 684 F.3d 445, 459-60 (4th Cir. 2012)
(adopting First Circuit’s interpretation of proximate cause).
On the other end of the spectrum are losses such as attorney’s fees incurred in
pursuing a restitution action against that defendant. Those losses bear a much closer
causal relationship to the individual defendant’s conduct, and thus it would be much
more likely that a victim could prove the defendant “proximately caused” those
losses. See Gamble, Nos. 11-5394/5544, slip op. at 18 (describing “litigation costs
in connection with the particular defendant” as “proximately caused harms [that] are
clearly traceable to a particular defendant”). Because I would hold that only
miscellaneous other losses in subsection (F) are subject to a proximate cause
requirement, and because the district court never addressed whether any of Vicky’s
claimed losses fall under subsection (F), it would be premature for me to attempt to
define the precise contours of “proximate cause” at this juncture.
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Addressing causation, however, is only the first step that a court must take
when crafting a restitution award. Concluding that a defendant caused a victim loss,
either as a general “cause” with respect to losses in subsections (A)-(E) or as a
“proximate cause” with respect to miscellaneous other losses in subsection (F),
merely establishes that a court must enter a restitution order. The next step is for the
court to determine the amount of the restitution order.
Section 2259(b)(1) clearly states that the restitution order must be for “the full
amount of the victim’s losses.” Read in tandem with subsection 2259(c), which
defines “victim” as “the individual harmed as a result of a commission of a crime
under this chapter,” the statute’s reference to “the full amount of the victim’s losses”
is best understood as all losses the victim suffered as a result of the defendant’s crime
under Title 18, Part I, Chapter 110: Sexual Exploitation and Other Abuse of Children.
Applying normal common-law principles, where the losses stem from an indivisible
injury, the defendant must be held jointly and severally liable for that injury. See
Burgess, 684 F.3d at 461 (Gregory, J., concurring in part and dissenting in part). For
example, if the hypothetical victim above has incurred a total of $500,000 in
counseling expenses as a result of knowing that numerous unknown people are
viewing his or her pornographic images, and the court makes a factual finding that
his or her psychological trauma is an indivisible injury, then the district court must
enter a restitution order for $500,000, even though the individual defendant is not the
only person responsible for those losses. See id. If the court determines that some
or all of the victim’s injuries are divisible, then the court must apportion liability for
those losses and enter a restitution order reflecting only the portion of those losses for
which the defendant is individually responsible. See id. An example of divisible
losses might be attorney’s fees incurred in pursing a restitution action against a
specific defendant. See Gamble, Nos. 11-5394/5544, slip op. at 18.
In cases where a restitution order reflects joint and several liability, traditional
joint and several liability principles would allow a defendant to bring contribution
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actions against other individuals who contributed to the victim’s losses. See In re
Amy Unknown, 701 F.3d at 769-70 (citing 18 U.S.C. § 3664(h)).8 These same
principles would prevent victims from recouping more than “the full amount” of their
losses since a defendant ordered to pay restitution could introduce evidence that the
victim had already collected some or all of that restitution from a defendant in a
different case. See id. In some instances, defendants even may be able to obtain this
evidence from the government, as it appears the government keeps track of at least
some restitution awards. See Gamble, Nos. 11-5394/5544, slip op. at 16 (“The
Government . . . has already assembled a database to keep abreast of restitution
awards to Vicky all over the country.”).
But regardless of how defendants can obtain information about other restitution
awards, the fact that Congress drafted the statute to require defendants to reimburse
victims for “the full amount” of their losses reflects the policy judgment that child
victims should be fully compensated for their losses in the most efficient manner
possible; defendants, rather than child victims, should bear the responsibility of filing
additional lawsuits against other responsible parties in order to apportion
responsibility among them. Cf. In re Amy Unknown, 701 F.3d at 760 (noting that
section 2259 “reflects a broad restitutionary purpose”). Both Congress and the courts
are familiar with this approach of shifting responsibility for apportionment to
defendants, as this is essentially the same approach used in CERCLA litigation. See,
e.g., Burlington N. and Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614-15
8
The majority concludes that section 3664(h) permits courts to impose joint and
several liability only when there are multiple defendants in a single case. See supra
at 16 n.6. Section 3664(h) provides, “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.” I agree with the Fifth Circuit that “nothing in
§ 3664 forbids” imposition of joint and several liability on defendants in separate
cases. See In re Amy Unknown, 701 F.3d at 770.
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(2009). This interpretation not only reflects the plain language of the statute, but also
embraces the sensible policy choice that the responsibility for potentially burdensome
litigation should fall on people who commit crimes against children, rather than on
those children.
Here, the district court calculated its restitution award based on two erroneous
premises: (1) that restitution can be awarded only for losses that the defendant
proximately caused and (2) that restitution awards cannot reflect joint and several
liability. United States v. Fast, 876 F. Supp. 2d 1087, 1088-89 (D. Neb. 2012). Thus,
Vicky has satisfied the second element of mandamus: that “the district court clearly
and indisputably erred in the restitution amount it awarded her . . . .” See supra at 11.
B.
The third and final element that Vicky must show to entitle her to mandamus
relief is that “the writ is appropriate.” See supra at 11. A writ of mandamus “is an
extraordinary remedy that is available only to correct a clear abuse of discretion.” In
re Apple, Inc., 602 F.3d 909, 911 (8th Cir. 2010) (internal quotation marks omitted).
“[A] clear error of law or clear error of judgment leading to a patently erroneous
result may constitute a clear abuse of discretion.” Id. Here, Vicky submitted
evidence that she incurred more than $1.2 million in losses as a result of her sexual
abuse and the subsequent distribution of her images. The district court, however,
awarded only $3,333 in restitution due to its erroneous conclusions that (1) restitution
can be awarded only for losses that the defendant proximately caused and (2)
restitution awards cannot reflect joint and several liability. Fast, 876 F. Supp. 2d at
1088. Because the entire premise of the district court’s restitution calculation was
erroneous, Vicky has shown “that the writ is appropriate under the circumstances.”
See Cheney, 542 U.S. at 381 (noting that this element is left to appellate court’s
discretion); United States v. Frazier, 651 F.3d 899, 910 (8th Cir. 2011) (remanding
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for recalculation of restitution amount when original amount was based on erroneous
loss valuation method).
II.
Because Vicky has satisfied all three mandamus elements, I would grant her
petition for mandamus. Consequently, I would remand for the district court to
recalculate Vicky’s losses under section 2259(b)(3) and to enter a restitution order
reflecting “the full amount” of her losses as required by section 2259(b)(1).
______________________________
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