[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 28, 2011
No. 09-15038
JOHN LEY
________________________ CLERK
D. C. Docket No. 08-00026-CR-HLM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICKY LEE MCDANIEL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 28, 2011)
Before WILSON, PRYOR and ANDERSON, Circuit Judges.
WILSON, Circuit Judge:
Ricky Lee McDaniel was convicted of possession of child pornography in
violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2256(8)(A). The district court
sentenced him to 60 months of imprisonment and three years of supervised release
and ordered him to pay restitution to “Vicky,” a child depicted in one of his
images. McDaniel asks whether 18 U.S.C. § 2259 requires a showing of
proximate cause, and if so, whether the district court clearly erred in ordering
restitution. For the following reasons, we affirm.
I. BACKGROUND
A jury convicted McDaniel of possession of child pornography, finding that
McDaniel possessed 600 or more images of child pornography. The National
Center for Missing and Exploited Children (“NCMEC”) compares images and
identifies the children depicted within. The NCMEC then notifies an identified
victim every time someone is arrested who is found to possess his or her image.
The Government submitted McDaniel’s collection of images and videos to the
NCMEC for identification of known victims after McDaniel’s re-indictment in
June 2008. The NCMEC discovered that McDaniel’s child pornography
collection included an image of Vicky being raped and abused by her father when
she was 10 years old. The NCMEC then notified Vicky.
The Government read a statement from Vicky during McDaniel’s
sentencing hearing. Vicky had begun receiving NCMEC notifications in
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December 2006, and she explained in her statement that since she learned that
videos and images of her are circulated on the Internet, she lives
every day with the horrible knowledge that someone
somewhere is watching the most terrifying moments of my
life and taking grotesque pleasure in them. . . . Every day
people are trading and sharing videos of me as a little girl
being raped in the most sadistic ways. . . . They’re being
entertained by my shame and pain.
Some people who have seen Vicky’s images have tried to contact her, and one
created a YouTube slide show of her images. Vicky explained “every time [my
images] are downloaded I’m exploited again. My privacy is breached and my life
feels less and less safe. I will never be able to have control over who sees me
raped as a child.”
Vicky moved, through both the Government and her own counsel, for
restitution pursuant to the Mandatory Restitution for Sexual Exploitation of
Children Act, 18 U.S.C. § 2259. Vicky sought approximately $185,000 for past
psychological services and future counseling and therapy, and $3,500 in attorneys’
fees. At the restitution hearing, the Government offered Dr. Randall Green as an
expert on the impact of psychological trauma. Dr. Green evaluated Vicky in April
and November of 2009, diagnosing her with post-traumatic stress disorder,
dissociative disorder, and depression. Dr. Green testified that Vicky’s abuse and
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the circulation of her images on the Internet have caused Vicky to suffer severe
behavioral problems. Dr. Green opined that Vicky’s knowledge that her images
are being disseminated on the Internet causes Vicky to suffer a continuing trauma
that he compared to an ongoing “slow acid drip.” She also suffers knowing that
pedophiles are using images of her abuse to groom future victims. Dr. Green
opined that Vicky would need approximately $166,000 to $188,000 of future
counseling or therapy because of the damages she incurred from the original abuse
and her awareness of the images on the Internet.
The district court issued a written order granting in part the Government’s
request for restitution. First, the court found that Vicky was a victim of
McDaniel’s possession of child pornography. Believing that section 2259 requires
a showing of proximate causation, the court concluded that the Government
proved by a preponderance of the evidence that McDaniel’s possession of Vicky’s
image proximately caused her harm. Although Vicky’s father caused the initial
harm, the court found that her father’s culpability did not insulate McDaniel from
responsibility for his separate crime of possessing an image of her sexual abuse.
Citing both Vicky’s letter and Dr. Green’s testimony, the district court found that
the evidence showed that Vicky “suffers every time the child pornography
containing her image is traded and viewed.” The court further noted that because
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of the NCMEC’s practice, Vicky received notice that McDaniel possessed her
image. Thus the court concluded that McDaniel’s knowing possession of child
pornography proximately caused Vicky’s “real and identifiable injuries that now
require clinical therapy to redress, and that will continue to require such therapy in
the future.” Accordingly, the court ordered McDaniel to pay Vicky $12,700 in
restitution.
II. STANDARDS OF REVIEW
“We review de novo the legality of an order of restitution, but we review
factual findings underlying a restitution order for clear error.” United States v.
Washington, 434 F.3d 1265, 1267 (11th Cir. 2006). Whether a person is a
“victim” is a legal conclusion we review de novo, “but proximate cause is a factual
finding we review for clear error.” United States v. Robertson, 493 F.3d 1322,
1334 (11th Cir. 2007).
III. DISCUSSION
Section 2259(a) provides that a district court “shall order restitution for any
offense under this chapter.” 18 U.S.C. § 2259(a). The order of restitution “shall
direct the defendant to pay the victim . . . the full amount of the victim’s losses.” §
2259(b)(1). The “full amount of the victim’s losses” includes any costs incurred
by the victim for:
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(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.
§ 2259(b)(3)(A)–(F). A “victim” is defined as “the individual harmed as a result
of a commission of a crime under this chapter.” § 2259(c). It is undisputed that
McDaniel’s crime—the possession of material depicting the sexual exploitation of
children—falls under this chapter.
1. Is Vicky a “victim”?
First, we agree with the district court that McDaniel “harmed” Vicky under
the meaning of section 2259(c) by possessing images of her sexual abuse as a
minor. In sentencing appeals, we have held that the minors depicted in child
pornography are the “primary victims” not only when the photographs are taken,
“but also when they are subsequently transported or distributed from one person to
another.” United States v. Tillmon, 195 F.3d 640, 644 (11th Cir. 1999) (per
curiam). Although “an argument can be made that the production of child
pornography may be more immediately harmful to the child involved, the
dissemination of that material certainly exacerbates that harm, not only by
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constituting a continuing invasion of privacy but by providing the very market that
led to the creation of the images in the first place.” Id.
In New York v. Ferber, the Supreme Court acknowledged that the
distribution of child pornography is “intrinsically related to the sexual abuse of
children” because, inter alia, “the materials produced are a permanent record of
the children’s participation and the harm to the child is exacerbated by their
circulation.” 458 U.S. 747, 759, 102 S. Ct. 3348, 3355 (1982).
Like the producers and distributors of child pornography, the possessors of
child pornography victimize the children depicted within. The end users of child
pornography enable and support the continued production of child pornography.
They provide the economic incentive for the creation and distribution of the
pornography, and the end users violate the child’s privacy by possessing their
image. All of these harms stem directly from an individual’s possession of child
abuse images. Thus the district court did not err in finding that Vicky was a
victim of McDaniel’s possession of child pornography, and consequently, that she
is eligible for restitution under section 2259.
2. Does § 2259 require proximate causation?
Next, we hold that section 2259 limits recoverable losses to those
proximately caused by the defendant’s conduct. Three other circuits agree. See
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United States v. Crandon, 173 F.3d 122, 126 (3d Cir. 1999) (determining the
defendant engaged in “conduct [that] was the proximate cause of the victim’s
losses” and therefore was liable to pay restitution under section 2259); United
States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999) (explaining that section 2259
“incorporates a requirement of proximate causation” and therefore “a causal
connection between the offense of conviction and the victim’s harm”); In re Amy,
591 F.3d 792, 794 (5th Cir. 2009) (“Section 2259(b)(3) therefore arguably requires
the government to establish that recoverable damages must proximately result
from the ‘offense.’”).
Because “proximate result” is included in only the last of the enumerated
types of losses in § 2259(b)(3), the Government argues that proximate cause is not
required for the first five categories of loss, which the Government argues require
only a generalized showing of “harm.”1 But the Government’s argument fails
because it is contrary to the plain language of section 2259, which covers, inter
alia, “losses suffered by the victim as a proximate result of the offense.” §
2259(b)(3)(F).
1
But if there was “no proximate cause requirement in the statute, a restitution order
could hold an individual liable for a greater amount of losses than those caused by his particular
offense of conviction.” In re Amy, 591 F.3d 792, 794 (5th Cir. 2009) (quoting United States v.
Paroline, 672 F. Supp. 2d 781, 790 (E.D. Tex. 2009)).
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“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.” Porto Rico Ry., Light &
Power Co. v. Mor, 253 U.S. 345, 348, 40 S. Ct. 516, 518 (1920). 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.” Because the language of
the statute is plain, our inquiry ends here. See United States v. Steele, 147 F.3d
1316, 1318 (11th Cir. 1998) (en banc).
3. Did McDaniel’s conduct proximately cause Vicky’s losses?
McDaniel next argues that his conduct did not proximately cause Vicky’s
harm. Instead, he contends that her father and the distribution of the images
caused her harm, and by the time he possessed the images, the harm had already
been done. He asserts that restitution is appropriate only in cases where the
defendant actually sexually abused a child or produced the child pornography
because, in those cases, the defendant’s conduct actually harmed the child.
We disagree. Dr. Green explained that each NCMEC notification adds to
the “slow acid drip” of trauma and exacerbates Vicky’s emotional issues. He
testified that each notification is “extraordinarily distressing and emotionally
painful” to Vicky and that Vicky suffers “each time an individual views an image
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depicting her abuse.” We are not “‘left with the definite and firm conviction that a
mistake has been committed.’” Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 573, 105 S. Ct. 1504, 1511 (1985) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542 (1948)). Consequently, the
district court did not clearly err in finding that McDaniel’s possession proximately
caused Vicky’s losses.2
AFFIRMED.
2
McDaniel seeks relief from his conviction under the Speedy Trial Act, 18 U.S.C. §§
3161–74. He raises the issue for the first time on appeal. McDaniel waived his right under the
Act because he failed to move for dismissal under the Act in the district court. See 18 U.S.C. §
3162(a)(2) (“Failure of the defendant to move for dismissal prior to trial . . . shall constitute a
waiver of the right to [relief under the Act].”).
McDaniel also argues that the extensive delay in his prosecution was unduly prejudicial
and violated his right to a fair and speedy trial under the Sixth Amendment. We review this
argument for plain error because he did not make the argument in the district court, but instead
argued only that there was a “due process violation.” See United States v. Hayes, 40 F.3d 362,
364 (11th Cir. 1994). The Sixth Amendment speedy trial guarantee was no longer effective for
McDaniel’s original indictment once the district court dismissed it, see United States v.
MacDonald, 456 U.S. 1, 7, 8–9, 102 S. Ct. 1497, 1501 (1982) (citation omitted) (“Although
delay prior to arrest or indictment may give rise to a due process claim under the Fifth
Amendment, . . . no Sixth Amendment right to a speedy trial arises until charges are pending.”),
and McDaniel has failed to show actual prejudice from the thirteen-month delay between his
second indictment and his trial.
McDaniel claims a “material witness” died in December 2007 and was therefore unable
to testify because of the delay. But this alleged material witness died before McDaniel’s
re-indictment in June 2008, at a time when McDaniel’s speedy trial rights were not in effect.
Any prejudice resulting from this witness’s death would be useful in a due process, but not
speedy trial, analysis. See United States v. Hicks, 798 F.2d 446, 450 (11th Cir. 1986) (“[D]elay
between dismissal of the earlier charges and subsequent arrest or indictment must be scrutinized
under the due process clause.”). McDaniel has failed to show actual prejudice and, for that
reason, he has failed to show a plain error affecting his substantial rights.
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