Tuesday, October 9, 2012

En banc Fifth Circuit continues circuit split with CP restitution, holds proximate cause not required for loss calculation

The Fifth Circuit recently decided en banc to continue a circuit split concerning restitution to child victims of images of child pornography. In re Amy Unknown, No. 09-41238 (5th Circuit 2012) (en banc). As discussed previously on this blog, the Fifth Circuit was the odd man out on the issue, with a panel having held that the statute's allowance for losses is not limited to those proximately caused by the defendant. In light of conflicting opinions in other circuits, the Fifth took up the case en banc.

Other circuits have held that 18 U.S.C. § 2259's "proximate result" requirement limits awards to losses that are a proximate cause of the defendant's acts. Therefore, a defendant who has only viewed the images may only be found liable for the damage he proximately caused the victim.

The Fifth's decision, however, allows courts to award restitution in the full amount of the victim's losses (including medical services, therapy, child care, lost income, attorney's fees, and other expenses). The victim in this case (the "Amy series") has previously been determined to be entitled to approximately $3.4 million. The appeals court held that the district court must order restitution in the full amount.

Thus, the district court decision was vacated and remanded.

A concurring/dissenting opinion of four judges argued that district courts should be given discretion in the amount and not be required to impose the full amount when multiple violators contributed to the victim's losses.

For other posts related to this issue, visit our restitution label.


  1. So "Amy" is allowed full restitution EVERY time a defendant simply possesses her picture? Does the government have to prove viewing of the image for proximate cause? Distribution? Or is simple possession enough to pay her therapy bills again? For those of us that deal in these cases from a forensic standpoint, this seems a bit absurd.

    1. Essentially, the argument is that the harm done to a victim is caused by each and every person who possesses OR distributes an image of the victim, and thus each defendant who is convicted is liable for the victim's damages. As long as the government can get the conviction, the restitution can be awarded. Some courts have sought to divide the amount among those convicted. For example, if there was $1 million in damages and an estimated 1000 possessors of the victim's images, each would be liable for $1,000. Others have found defendants liable for the full amount - allowing the victim to recover as much as the defendant was worth. Most defendants cannot pay the entire amount, but they don't want to cap the amount in case one defendant would be able to pay all of it.

      "Amy," however, will likely never receive more than full recovery (if she is ever able to get that much). Once she receives the entire amount of her damages, courts will likely stop awarding restitution.

      The award of restitution is actually mandatory under the federal child pornography legal framework, and the defendant's financial situation cannot be considered.