We've discussed CP restitution in the past (see Dec. 7, 2012 post). Sixth Cir. continues on its trajectory of requiring causation.
In United States v. Gamble, Nos. 11-5394/5544 (6th Cir. Feb. 27, 2013) (published) (panel of Judges Rogers, Kethledge, and Marbley (S.D. Ohio)), the Court confirmed that "[i]n order for restitution to be granted under 18 U.S.C. § 2259, the Government must show that the costs incurred by the victim were proximately caused by the defendant’s offense. This conclusion is supported both by our precedent and by an independent reading of the statute."
COA looked at 18 USC 2259, which governs mandatory restitution in child sex cases. COA also looked back at United States v. Evers, 669 F.3d 645 (6th Cir. 2012), in which the Court held that all restitution awards under 2259(b)(3) require the gov to show proximate cause.
The 6th Cir. concluded:
"Because the district courts did not require a showing of proximate cause between the losses and the defendants’ offenses, and this circuit’s case law requires such a showing, the cases must be remanded so that this analysis can take place. On remand, moreover, the district court must reconsider the extent to which the defendants must pay restitution where they share responsibility for Vicky’s injuries with hundreds of other child pornography viewers."
Defense counsel had objected in the dist ct, arguing that many of the alleged damages to "Vicky" occurred before the pictures were found in the defendant's possession. Argued causation could not be shown. Also argued that including "future costs" was speculative.
The district court found that the evidence showed a total loss amount for Vicky of $1,002,766.85, and ordered restitution in that amount, an amount that was to be reduced as other money was collected.
The COA, however, affirmed that "[t]he proximate cause requirement recognized in Evers consists of (1) a cause-infact requirement—i.e., a showing that the defendant’s conduct actually caused the victim’s losses—and (2) a requirement that the cause be proximate."
The COA gave strong, concise support for its reading of 2259(b)(3)(F): that section "states that the victim’s losses include costs incurred for 'any other losses suffered by the victim as a proximate result of the offense.' The plain meaning of this phrase in context indicates that it is equally applicable to the previous five subsections listing specific costs like medical services and lost income. The 'any other losses' catchall is meant to close loopholes. There is no reason that the catchall would be limited by a proximate cause requirement while the specified categories of losses would not."
Also, "[i]n the definition of 'victim,' to whom restitution is owed, the statute states that the victim must be “harmed as a result of a commission of a crime under this chapter.' . . . As other circuits have pointed out, 'this language implies that the government must establish a causal connection between the defendant’s offense and the harm to the victim.'"
Cause-in-fact and proximate cause required. Proximate cause requires reasonable foreseeability.
On the issue of joint-and-several liability, the COA saw a link with proximate causation: "The question of joint and several liability bears some relation to whether the causation is proximate, however, because one of the policy strands in the proximate cause analysis is the avoidance of unlimited liability for a single action."
Apportioning restitution, the COA concluded, makes more sense: "liability is to be apportioned in a reasonable way that leads to full restitution, without eviscerating the causation requirement."
Interesting note: "Vicky" seems to have "collected almost half of the $1.2 million in losses that she has claimed to date."
The COA explained that a defendant generally cannot cause harm prior to his or her offense date.
The gov proposed a system for apportionment. The COA saw this system as a possible solution; the Court did not mandate its adoption, but found it consistent with the statute. The Court left the issue to the dist ct on remand. Remand was to allow for consideration of new evidence and argument. One defendant argued his prison sentence was substantively unreasonable. The Court rejected this argument. He got 82 months, which was within the GLs.
Judge Kethledge concurred in part and in the judgment:
* He believes in "a more flexible and open-ended determination of each defendant's share" of the alleged losses.
* To him, "an inquiry into whether a particular defendant actually caused a victim’s generalized losses—by which I mean losses resulting from the actions of many violators of the child pornography laws—is an inquiry into the unknowable."
* He admonished that "[c]asting legal questions in such terms is only a hindrance to clear thinking; and thus the choice before us is either to abandon enforcement of the statute in these cases, or to adopt a different rule of actual causation for this context. I would take the latter approach and adopt the First Circuit’s rule of aggregate causation (though only for purposes of determining actual cause)."
* He cautioned that "nothing in the statute appears to support multiple full recoveries for the victim. And multiple recoveries would be compelled under an approach where multiple defendants are each found to cause all of the victim’s losses.
* Agreeing that joint-and-several liability is impractical, he approved of apportioning losses, but recognized the problems with such a task. His approach would be flexible. He "would case the issue in terms of the defendant's comparative moral fault." Various factors to consider.
