Criminal law - First Circuit upholds restitution order without requiring evidence of defendant's causal contribution to victim's losses - United States v. Kearney.

AuthorO'Roark, Evan M.

Criminal Law--First Circuit Upholds Restitution Order Without Requiring Evidence of Defendant's Causal Contribution to Victim's Losses--United States v. Kearney, 672 F.3d 81 (1st Cir. 2012)

In criminal cases, restitution for victims is typically limited to the losses that the defendant caused in the commission of the crime. (1) Title 18, section 2259 of the United States Code requires courts to order restitution for victims of sexual crimes against children in "the full amount of the victim's losses." (2) In United States v. Kearney. (3) a case of first impression, the United States Court of Appeals for the First Circuit considered whether a person depicted in child pornography was entitled to restitution under [section] 2259 from someone who had criminally possessed, distributed, and transported that pornography. (4) The First Circuit concluded that the victim's injuries were proximately caused by the defendant's use of the pornography, and upheld the district court's restitution order. (5)

In 2008, Patrick Kearney sent videos and images of child pornography to a fourteen-year-old girl named "Julie" during numerous online conversations. (6) "Julie," however, was an undercover police investigator, and on July 10, 2008 Kearney admitted to downloading and sending child pornography while FBI agents seized the computers on which the pornography was stored from his home. (7) Kearney was arrested and charged with transportation, distribution, and possession of child pornography in violation of 18 U.S.C. [section] 2252(a)(1), (a)(2), and (a)(4)(B), respectively. (8)

After Kearney pled guilty to all charges, the government filed a motion requesting restitution under [section] 2259 for "Vicky," the child subject of one of the pornographic videos Kearney possessed, transported, and distributed. (9) Specifically, the government requested an award of no less than $3800 for Vicky, the average amount of restitution she had received in thirty-three previous child pornography cases. (10) In support of the restitution claim, the government submitted two expert reports detailing the "'significant, permanent psychological damage'" Vicky suffered from knowing that the images of her sexual exploitation continued to be viewed and disseminated on the internet. (11) The expert reports documented the anguish Vicky experienced from her general awareness of the ongoing dissemination and possession of the pornographic materials, but did not identify any particular instance of an individual's possession or distribution of the pornography as causing her additional harm. (12) At Kearney's sentencing hearing, the district court found that he had proximately caused Vicky to incur losses within the meaning of [section] 2259, and ordered him to pay Vicky the government's proposed restitution figure of $3800. (13) On appeal, the First Circuit upheld the restitution order, reasoning that Vicky's psychological injuries were a reasonably foreseeable result of Kearney's use of the pornographic video, and the district court reasonably determined the amount awarded. (14)

Federal courts may only order restitution in a criminal case when Congress has expressly authorized them to do so. (15) Congress first granted courts such power in 1982 when it enacted the Victim Witness Protection Act (VWPA). (16) In 1994, Congress made criminal restitution mandatory for the first time in [section] 2259, a portion of the Violence Against Women Act (VAWA), mandating that a "court shall order restitution for any offense under [Chapter 110]," which prohibits the sexual exploitation and abuse of children. (17) Two years later, Congress broadened the scope of mandatory criminal restitution with the Mandatory Victim Restitution Act (MVRA), which made restitution mandatory for a wide range of violent crimes and crimes against property, and which amended [section] 2259 and the VWPA to create a unified criminal restitution scheme. (18)

Since the enactment of [section] 2259, federal prosecutors have successfully sought restitution from individuals convicted of sexually abusing children in the course of producing child pornography, as every circuit court to address the issue has upheld restitution orders in such cases. (19) Only in recent years have victims and the government begun requesting restitution under [section] 2259 from individuals convicted for criminal possession of child pornography. (20) Courts unanimously agree that persons depicted in child pornography qualify as "victims" of the individuals who possess that pornography within the meaning of [section] 2259(c). (21) This consensus stems from the Supreme Court's decision in New York v. Ferber, which established that individuals depicted in child pornography are harmed by the continued possession and dissemination of pornography containing their image. (22) In addition to requiring proof of victim status, courts also limit recovery under [section] 2259 to losses proximately caused by a defendant's use of the pornography. (23) Although [section] 2259 does not expressly limit restitution to injuries proximately caused by a defendant's conduct, seven of the eight circuit courts to address the issue have interpreted the statute as including such a limitation. (24)

The circuit courts of appeals are split on whether possession of child pornography alone proximately causes harm to the persons depicted in the pornographic images. (25) The Second and Ninth Circuits have denied restitution in possession cases, reasoning that proximate causation under [section] 2259 cannot be established without proof of specific losses to the victim attributable to the defendant's possession. (26) Courts denying restitution emphasize that restitution based on the defendant's use of the pornography cannot be reasonably calculated when there is only evidence of generalized harm to the victim. (27) In contrast, the District of Columbia and Fourth Circuits held that proximate causation was satisfied by a defendant's possession of pornography alone, but remanded the cases for further findings on the amount of harm caused. (28) Courts awarding restitution generally focus on the mandatory nature of [section] 2259 and infer proximate causation from the defendant's participation in conduct already established as having harmed the victim. (29) After finding proximate causation, awarding courts vary in how they calculate restitution, but agree that "mathematical precision" is not necessary for the award to be proper. (30) Eleventh Circuit Court of Appeals appears undecided on the level of causation required by [section] 2259, as it has reached contradictory results in two possession cases on arguably similar facts. (31)

In United States v. Kearney, the First Circuit Court of Appeals considered whether the criminal acts of possessing, transporting, and distributing child pornography entitle an individual depicted in the pornography to restitution under [section] 2259. (32) The court maintained the consensus approach to possession cases first by deciding that Vicky was clearly a "victim" of Kearney under [section] 2259(c) based on Ferber and the expert reports documenting her psychological injuries. (33) The court also concurred with the majority of courts by interpreting [section] 2259 as implicitly requiring proof that Kearney's use of the pornography proximately caused Vicky's injuries. (34)

The First Circuit held that Kearney's possession of the child pornography satisfied [section] 2259's proximate causation standard because Vicky's injuries were "reasonably foreseeable" at the time of Kearney's conduct. (35) The court offered a novel justification for determining proximate causation was satisfied in a possession case, pointing to the tort principle that when the conduct of multiple actors causes an injury, but each actor's causal contribution would be insufficient by itself to have caused the injury, each actor is nevertheless a cause in fact and a proximate cause of the injury. (36) The court also relied heavily on a contextual interpretation of [section] 2259, arguing [section] 2259 provides greater protection for victims than do the VWPA or MVRA, and therefore, a narrow interpretation of its proximate causation requirement would be "contrary to the purposes of restitution under [section] 2259." (37) In direct contradiction to the rulings of the Second, Ninth, and Eleventh Circuits, the First Circuit held that proof of specific linkage between a defendant's offense and a victim's harm is unnecessary for finding proximate causation satisfied in possession cases. (38) for whether the district court properly calculated the restitution awarded to Vicky, the court held that averaging her past restitution awards from similar cases was a "reasonable determination of appropriate restitution" in the case at bar. (39) In doing so, the First Circuit became the first United States court of appeals to expressly hold that not only did a defendant's possession of child pornography proximately cause a victim's injuries, but that the amount of restitution awarded to the victim under [section] 2259 was proper. (40)

The Court of Appeals for the First Circuit erred in deciding restitution may be awarded under [section] 2259 in the absence of evidence linking a defendant's possession, distribution, and transportation of child pornography to the specific losses of a victim. (41) The court's holding defies traditional notions of proximate causation and the prevailing weight of authority. (42)...

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