Tuesday, November 27, 2012

Fifth Circuit reissues en banc CP restitution opinion, retains substance of the opinion

In October, the Fifth Circuit, in an en banc opinion, held that a victim of child pornography is not limited to recovery for losses proximately caused by the defendant. In re Amy Unknown, No. 09-41238 (5th Cir. 2012) (en banc). Under the opinion, victims can be awarded the full amount of damages from any individual defendant - even if he only came into possession over the Internet. The decision, which I discussed in a previous post, vacated and remanded the combined cases for the district court to reconsider damages.

Each had been heard by different panels of the court individually. When the second case was heard, the panel agreed with the prior precedent, but wrote a special concurrence questioning the prior decision and suggesting the opinion be taken up en banc. The two cases were heard together by the full Fifth Circuit.

Last week, the Fifth Circuit withdrew its October opinion, choosing to vacate and remand one of the cases and to affirm the other. In re Amy Unknown, No. 09-41254 (5th Cir. 2012) (en banc). The court had remanded both in the October opinion, but in one of the cases, the government had not actually appealed the sentence which had awarded only partial damages. Therefore, the issue could not be remanded because it had not actually been appealed.


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