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C riminal L aw What Nexus Between the Defendants Acts and the Victims Harm Must the Government Show

in a Child Pornography Restitution Case? CASE AT A GLANCE

Doyle Randall Paroline pled guilty to possession of child pornography. Amy (a pseudonym used to protect her identity), one of the victims depicted in the child pornography Paroline possessed, led a request for restitution from Paroline pursuant to the Sexual Exploitation and Other Abuse of Children Act, 18 U.S.C. 2259. The district court, nding Amy failed to show any proximate cause between her injuries and Parolines conduct, denied Amys request in its entirety. A panel of the Fifth Circuit denied Amys mandamus petition. A second panel granted Amys mandamus petition, before the Fifth Circuit granted rehearing en banc. The full Fifth Circuit granted Amys mandamus petition and remanded the case to the district court to determine the proper amount of restitution. Paroline led a successful petition for certiorari. The circuits are split on the question before the Court.

Paroline v. United States Docket No. 12-8561 Argument Date: January 22, 2014 From: The Fifth Circuit
by Rachel K. Paulose

What nexus between a criminal defendants acts and a child pornography victims harm must the government or the victim establish in order for the victim to receive restitution under 18 U.S.C. 2259?

decreased future earnings and ongoing medical care bills, and a request for restitution in the amount of $3.4 million pursuant to 18 U.S.C. 2259. Section 2259 provides in relevant part as follows: (a) In General.Notwithstanding section 3663 or 3663A, and in addition to any other civil or criminal penalty authorized by law, the court shall order restitution for any offense under this chapter. (b) Scope and Nature of Order. (1) Directions.The order of restitution under this section shall direct the defendant to pay the victim (through the appropriate court mechanism) the full amount of the victims losses as determined by the court pursuant to paragraph (2). (2) Enforcement.An order of restitution under this section shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A. (3) Denition.For purposes of this subsection, the term full amount of the victims losses includes any costs incurred by the victim for (A) medical services relating to physical, psychiatric, or psychological care; (B) physical and occupational therapy or rehabilitation;
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In 1997, when she was about eight years old, victim respondent Amy was brutally sexually abused by her uncle, Eugene Zebroski. Zebroski photographed his criminal acts and posted the pictures on the Internet. The graphic pictures, recording rape, sodomy, and other sexual crimes against Amy, are part of the widely distributed child pornography production known as the Misty series. In 2008, a computer company employee discovered and reported to law enforcement that defendant Doyle Randall Paroline had downloaded child pornography onto his computer containing approximately 300 images of Amy and other children. FBI agents interviewed and ultimately arrested Paroline, who admitted he had downloaded child pornography for at least two years. The federal government charged Paroline with the possession of child pornography in violation of 18 U.S.C. 2252(a)(4)(B) by ling an information in the Eastern District of Texas. Paroline pled guilty on January 9, 2009, and on June 10, 2009, the district court sentenced him to a term of two years. The Department of Justice informed Amy of Parolines guilty plea. Amy submitted a victim impact statement describing the continuing distress related to her abuse, a psychological report describing her post-traumatic stress, an economic analysis projecting her


(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. (4) Order mandatory. (A) The issuance of a restitution order under this section is mandatory. (B) A court may not decline to issue an order under this section because of (i) the economic circumstances of the defendant; or (ii) the fact that a victim has, or is entitled to, receive compensation for his or her injuries from the proceeds of insurance or any other source. (c) Denition.For purposes of this section, the term victim means the individual harmed as a result of a commission of a crime under this chapter, including, in the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victims estate, another family member, or any other person appointed as suitable by the court, but in no event shall the defendant be named as such representative or guardian. Based on victim notications she received, Amy led approximately 250 restitution requests around the country against other criminal defendants who also had downloaded pictures of her exploitation. Amy described how the propagation of her abuse over the Internet made her feel she was being abused over and over and over again, understanding that at any moment, anywhere, someone is looking at pictures of [her] as a little girl being abused by [her] uncle and is getting some kind of sick enjoyment from it. The district court held two restitution hearings on August 20, 2009, and October 28, 2009, respectively. On December 7, 2009, the district court denied Amys petition in its entirety. Although the court agreed Amy met the denition of a victim under 2259, the court determined the government could not show Paroline proximately caused Amys specic losses as claimed in her request for restitution. In ruling Amy was a victim of Parolines offenses, the district court held: Child pornography fosters the exploitation of innocent and vulnerable children all over the world. It causes irreparable harm to some of the weakest members of our society. Child pornography is a permanent photographic record of the
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victims sexual abuse, and the distribution and circulation of the pornographic images forever exacerbates the harm to these child victims. Noting the structure of 2259(b)(3)(F), the district court ruled that the phrase as a proximate result of the offense applied to each of the categories noted in 2259(b)(3). The court noted every circuit court to rule on the issue insisted all categories of a victims harm must be proximately caused by the defendant. The district court also expressed concern that the failure to require proof the defendant proximately caused the victims harm could render 2259 unconstitutional as a violation of Eighth Amendment. More generally, the district court expressed skepticism the government could show any defendant charged with possession (rather than the arguably more serious offenses of production or distribution) of child pornography proximately caused a victims harms, describing it as an impossible burden for the Government. The district court went on to urge Congress to revise its largely unworkable restitution statute as to child pornography victims. Amy led a notice of direct appeal to the Fifth Circuit. Pursuant to the Crime Victims Rights Act (CVRA), she also led a petition for a writ of mandamus before the federal appellate court. Over the dissent of one judge, a panel of the Fifth Circuit denied Amys petition for mandamus on December 22, 2009, asserting the district court had not committed clear and indisputable error. The Fifth Circuit cited verbatim the district courts reasoning, noting: If the Court were to adopt Amys reading of section 2259 and nd that there is 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. This interpretation would be plainly inconsistent with how the principles of restitution and causation have historically been applied. Amy led a petition for rehearing of her mandamus motion. A different panel of the Fifth Circuit took up Amys direct appeal as well as her petition for rehearing on the mandamus motion. Writing for the second panel on March 22, 2011, Chief Judge Edith Jones held the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA. The panel held the grammatical structure and congressional history counseled against applying a proximate cause requirement to all categories of loss enumerated in 2259(b)(3). The court further noted that applying joint and several liability was one means of ensuring 2259 did not violate the Eighth Amendment. Such an application, the court stated, would shift[] the chore of seeking contribution to the person who perpetrated the harm rather than its innocent recipient. The court granted Amy a writ of mandamus and remanded the case to the district court to determine restitution. However, Paroline sought and obtained rehearing en banc by a per curiam order on January 25, 2012. The Fifth Circuit vacated both panel opinions. On November 19, 2012, the Fifth Circuit sitting en banc granted Amy a writ of mandamus and remanded the case, ordering the district court to assess the proper amount of restitution. The order


consolidated Parolines case with that of Michael Wright, a criminal defendant who possessed over 30,000 images of child pornography, including images of Amy. The district court had ordered Wright to pay Amy $529,661 in restitution, an order the Fifth Circuit afrmed as neither the government nor Amy contested it. However, the Fifth Circuit reversed the district courts order refusing Amy any restitution from Paroline. Alone among at least twelve circuit courts that have considered the issue, the Fifth Circuit held: Section 2259 only imposes a proximate result requirement in 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendants restitution obligations for the categories of losses in 2259(b)(3)(A) - (E). Instead, with respect to those categories, the plain language of the statute dictates that a district court must award restitution for the full amount of those losses. Turning rst to the jurisdictional issue, the Fifth Circuit rst found that the CVRA grants crime victims no right to direct appeal of a criminal case. Accordingly, the court dismissed Amys direct appeal. However, the court found it did possess jurisdiction to rule on Amys mandamus petition, the merits of which it adjudicated in Amys favor for several reasons. Generally, the court found the language of the statue evinced a broad restitutionary purpose and was phrased in generous terms to protect victims of sexual abuse and provide means for their long-term recovery. The court also found the plain language of the statute provided victims the right for the full amount of their losses pursuant to a mandatory restitution order regardless of a victims other sources of compensation or a defendants economic condition. More specically as to the nature of proof required, the court read the statute strictly and held the proximate result clause in 2259(b)(3)(F) only applied to the catchall clause capturing general losses not specically enumerated in 2259(b)(3)(A) - (E). Applying the rule of the last antecedent, the court held a limiting clause or phrase, such as the proximate result phrase in 2259(b) (3)(F), should ordinarily be read as modifying only the noun or phrase that it immediately follows,. The court further explained: The grammatical structure of 2259(b)(3) reects the intent to read each category of loss separate from the one that preceded it and limit the application of the proximate result language in 2259(b)(3)(F). Application of the rule of the last antecedent to limit the proximate result language to the subsection in which it is contained makes more sense here. Applying the proximate results language of 2259(b)(3)(F) to the categories that precede it would stretch the modier too far and disregard the structure of 2259(b)(3) as written. The Fifth Circuit found the Eighth Amendment no bar to requiring a defendant to pay the full amount of a victims losses. Like the Judge Jones panel before it, the court found several options to preserve the statutes constitutionality, including the application of joint and several liability and termination of restitution once a victim had actually received the full amount of recovery sought. The court also

expressed doubt the Eighth Amendment even applied to restitution, a remedial tool rather than a punitive one. Moreover, the court disapproved of the district courts order granting Amy no restitution at all simply because the lower court found the statute confounding, noting Amy had been granted restitution in approximately 174 other cases nationwide, with awards ranging from the nominal ($100) to the full amount of her request ($3,543,471). The appellate court nally outlined a two-step process for district courts to follow in 2259 cases: (i) determine whether the person seeking restitution is a victim by the terms of the statute; (ii) ascertain and award the full amount of the victims losses caused by the defendant, requiring proximate causation only as to 2259(b)(3) (F), applying joint and several liability. Paroline led a petition for writ of certiorari on January 31, 2013. The United States Supreme Court granted certiorari on June 27, 2013.

Paroline argues the plain text of 2259 requires the government to prove a child pornography victims harm was proximately caused by a defendants offense conduct. Paroline argues the specic term proximate result in 2259(b)(3)(F) must be understood to modify all the other enumerated losses in 2259(b)(3)(A) - (E). Paroline suggests as a simple matter of construction, general terms must be understood in light of specic terms used in the same section. Paroline also states that interpreting the term proximate result to apply to all of 2259(b)(3)s subsections is the most contextually faithful reading of the text. Paroline nally notes every other circuit, but for the Fifth Circuit, requires the government to show proximate cause between a defendants crime and a victims losses. The government urges the Court to afrm the Fifth Circuits decision below. However, the government agrees with Paroline that 2259 imposes a proximate cause requirement. The government cites eleven circuit courts that have required a showing that the defendants acts proximately caused the victims losses. The government also notes that the statutory language reects language often associated with the proximate cause standard, including in dening a victim as one harmed as a result of a crime. Moreover, the government argues Congress could not have intended for a victims every loss (medical, legal, and familial) to be assessed to any defendant, however far removed from his offense of conviction. The government notes the Fifth Circuit based its decision in part on the rule of the last antecedent. Instead, the government urges the Court to interpret 2259 in light of a different construction: when several words are followed by a clause which is applicable as much to the rst and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all. Amy urges the Court to afrm without reservation the Fifth Circuits decision below. Amy argues the Court should enforce the broad congressional purpose in enacting 2259 by requiring mandatory restitution for the full amount of a child pornography victims losses, imposing joint and several liability. Amy asserts a plain language review of 2259 shows the proximate result language applies only
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to the one clause, 2259(b)(3)(F), in which it is contained, as opposed to subsections of 2259(b)(A) - (E), which are independent clauses where no such limiting language appears. Amy contends the Fifth Circuit logically applied the rule of the last antecedent in construing 2259. Amy insists, Had Congress wished to have general proximate result limitation run through the section, it could have said so. Moreover, while acknowledging the numerous circuit court decisions rejecting her reasoning, Amy notes many of those victims were unrepresented by counsel. The lack of true adversarial hearings prevented courts from obtaining a thorough discussion of the complex legal issues involved, as both the defense and the government took positions contrary to the victims best interests, according to Amy. Paroline also argues the Fifth Circuits joint and several liability rule would create an administrative and judicial nightmare by creating a system whereby the federal courts would have to track numerous defendants nationwide who have created, distributed, or possessed child pornography victimizing the same child. Paroline claims prosecutors as well as probation ofcers would have to track restitution payments in multiple jurisdictions over an extended period of time in order to effectuate the Fifth Circuits ruling. Paroline describes this as a highly impractical system. Paroline also makes slippery slope policy arguments in urging the Court to reverse a joint and several liability standard. First, he argues the Fifth Circuits scheme essentially imposes a strict liability standard whereby a defendant is liable for all losses or damages claimed by a victim. A strict liability standard, however, would not consider an individual defendants conduct. Paroline instead proposes a but for cause standard: so long as the victims injury would not have occurred but for the defendants offense, the defendant would be liable for the injury. Here, Paroline claims the government has not shown any of Amys losses are traceable to Parolines conduct. Therefore, he asserts, he ought not be ordered to pay any restitution at all. Moreover, Paroline claims the Fifth Circuits reasoning could and would be applied to every other federal criminal offense mandating restitution. According to Paroline, this would effect sweeping changes in the interpretation of current criminal statutes. The government supports Paroline in claiming the Fifth Circuits joint and several liability standard was incorrect and criticizes it as unduly harsh. The government claims the Fifth Circuit also misconstrued the phrase full amount of the victims losses to encompass losses caused by others. However, the government denies that the statute mandates restitution as a result of losses caused by others. Further, the government agrees with Paroline that allocation under the joint and several liability standard the Fifth Circuit imposed is too complicated. Nevertheless, the government asserts that an award of zero dollars was inappropriate under the circumstances in this case. The government suggests a court weigh various factors including whether the defendant produced or distributed images of the victim; how many images the defendant possessed; and any other fact relevant to measuring the defendants culpability relative to the other relevant actors, to determine the appropriate amount of restitution.
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While the government rejects Parolines but for standard because it would likely result in culpable defendants being freed from restitution awards, it suggests an aggregate causation standard would correctly assess a defendants portion of a collectively caused harm. Under this standard, the government may show the necessary causal connection based on an aggregate causation theory without showing a specic link to particular losses caused by an individual defendants conduct. Once the causal connection is established, the government asks the Court to grant district courts the power to exercise their discretion to make reasonable restitution awards. The government notes, To require the government to produce evidence that petitioners specic conduct caused Amy to miss an extra day of work, or to need an additional therapy session, is to impose an insurmountable burden that has no grounding in general causation principles or in reality. Amy answers Paroline by returning again to the text of the statute, noting its express purpose is to provide full restitution to child pornography victims. Amy characterizes Paroline as straining for tort principles applicable only for negligent tortfeasors. By contrast, Amy notes possessors of child pornography are intentional tortfeasors and guilty felons, for whom broad liability is always the rule. In this context, Amy argues more expansive constructions are appropriate as to a defendants responsibility for various consequences, the government or victims burden of proof, and the victims breadth of recovery. Amy argues the Fifth Circuit thus appropriately imposed a joint and several liability standard in 2259 restitution cases. Amy urges the Court to allow district courts to interpret 2259 liability via a three-step process: (i) determine the harm the defendant caused; (ii) calculate the full amount of the victims losses; and (iii) determine the defendants ability to pay restitution. Only as to the general losses covered by 2259(b)(3)(f) must the district court impose a proximate result requirement. In this way, Amy notes that allegedly remote victims would collect limited, if any, restitution. In any case, Amy argues she and other child pornography victims ought not be worse off due to multiple tortfeasors than they would have been due to a sole tortfeasor. Comparing Paroline to a person in a mob leering at a victims rape, Amy declares, Petitioner cannot escape his responsibility to pay restitution by hiding in a crowd. Paroline asserts the $3.4 million ne levied upon him is a violation of the Excessive Fines Clause of the Eighth Amendment. He notes he possessed two images of Amy, and the man whose sexual abuse of Amy is featured in the child pornography he viewed was ned only $6,000, by contrast. Paroline acknowledges the Court has never actually applied the Excessive Fines Clause to criminal restitution. However, he claims restitution should have a deterrent and rehabilitative effect by expressly linking a victims losses to a defendants punishment, thereby forcing a defendant to understand the harm his actions have caused. Paroline characterizes restitution as an interest of the state, not for compensation of the victim. The government dismisses Parolines Eighth Amendment arguments as unfounded, because a compensatory restitution award, under any reasonable formula, is not an excessive ne. The governments argument echoes Parolines own acknowledgment that the Court has never interpreted the Eighth Amendment to equate nes with criminal restitution. Moreover, the government denies that


even a signicant restitution order could cause the order to morph into an Eighth Amendment penalty. Like the government, Amy notes even Paroline has acknowledged the limits of his Eighth Amendment argument, reiterating the Court has never applied the Excessive Fines Clause to cases of criminal restitution. Amy argues that precedent establishes a ne is a monetary criminal or civil punishment directly payable to the government. In contrast, a 2259 restitution award is payable to a crime victim, and thus does not implicate the government action prohibited by the Eighth Amendment. The crux of Parolines argument is that he has caused no harm to Amy. Instead, Paroline claims Amy was victimized only by her uncle and that it was someone elses criminal conduct that caused Amys losses or damages. Paroline argues none of Amys harms can be traced to him, and therefore he ought not to be ordered to pay any restitution. The government argues restitution is mandatory in all child pornography cases, whether the defendant is convicted of possessing, distributing, or creating child pornography. The government cites the statutory language requiring that a district court shall order restitution for any offense under 2259, including the possession of child pornography. The government disagrees with Parolines suggestion that restitution is improper in child pornography possession cases, and it challenges Parolines claim he has caused Amy no harm. Amy vigorously disputes Parolines assertion that he has caused her no harm. Amy cites the district courts nding that Paroline harmed Amy in multiple ways, including by perpetuating her abuse and invading her privacy. Amy also describes the daily fear she experiences knowing the record of her uncles sexual attacks against her is available on the Internet, concerns she detailed before the district court. She further observes that a proper characterization of the brutality of the crime of child pornography rests upon an understanding [of] the vast criminal machinery that generates those harms. Amy challenges the root of Parolines argument by characterizing congressional purposes in criminalizing the possession of child pornography: Congress realized that it had to address every stage of this sordid joint enterprisecountless criminals who together create, distribute, and possess child pornography. As this Court explained, it is difcult, if not impossible to halt the sexual exploitation and abuse of children by pursuing only child pornography producers. It was therefore reasonable for Congress to conclude that the production of child pornography will decrease if it penalizes those who possess and view the product, thereby decreasing demand. Indeed, the most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on all persons in the distribution chain. Congress did just that by criminalizing child pornography possession (internal citations omitted).

Amy further notes the record demonstrates the link between child pornography production, distribution, and possession. Specically, Amy cites evidence from the record below establishing that her uncle recorded his assaults to fulll requests by other individuals who wanted images of child abuse. Thus, Amy argues her victimization was fueled at least in part by the child pornography marketplace whereby producers, distributors, and possessors of child pornography satiate their mutual purposes. Amy urges the Court to hold Paroline accountable for his role in the tide of depravity ooding this marketplace.

Parolines argument seems to suggest the possession of child pornography is a victimless crime. In noting that the statute links the denition of a victim to losses caused by the commission of a crime, Paroline begs the question of why he pled guilty if he committed no crime. If he did commit a crime, what was the criminal act, who was his victim, and what damage did he cause? If accepted, Parolines reasoning would eviscerate, as a matter of law, any hope of child pornography victims obtaining damages from criminal defendants convicted of possession of child pornography. Congress has repeatedly pronounced that possession of child pornography is not a victimless crime. Indeed, leading Democrat and Republican U.S. Senators submitted an amicus brief in this case, authored by a former acting solicitor general, arguing child pornography is gravely harmful to children. In the wake of the strengthened federal statute, the prosecution of child pornography cases has increased dramatically in recent years based on the governments position that child pornography is a permanent record of a crime against a child, causing ongoing psychological harm to its victim. However, the extent to which Paroline and other possessors of child pornography should be held responsible for restitution to victims is still a hotly debated question. Paroline questions the fairness of a system that may impose a restitution order upon him even more severe than the restitution order imposed on Amys uncle, the man who violated her bodily integrity, produced the exploitative pictures, and distributed those pictures to others. Thus, this case will have a signicant impact on the nature and scale of the recovery child victims may obtain for damages victims assert are caused by the network perpetuating the possession, distribution, and production of child pornography.

Rachel K. Paulose is a graduate of Yale Law School. She worked as an associate at Williams & Connolly LLP. She has also served extensively in government, including as a law clerk to Eighth Circuit Court of Appeals Judge James B. Loken; trial attorney in the Voting Section, Civil Rights Division of the U.S. Department of Justice; assistant U.S. attorney; and a presidentially nominated, Senate conrmed U.S. Attorney. She can be reached at rkpaulose@ PREVIEW of United States Supreme Court Cases, pages 150155. 2014 American Bar Association.


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For Petitioner Doyle Randall Paroline (Stanley G. Schneider, 713.951.9994) For Respondent United States (Donald B. Verrilli Jr., Solicitor General, 202.514.2217) For Respondent Amy (Paul G. Cassell, 801.585.5202)

National Center for Missing and Exploited Children (Douglas Hallward-Driemeier, 202.508.4600) National Crime Victim Bar Association, Arizona Association for Justice, Connecticut Trial Lawyers Association, Florida Justice Association, and Oregon Trial Lawyers Association (Erin K. Olson, 503.546.3150) National Crime Victim Law Institute, Arizona Voice for Crime Victims, Child Justice, Inc., Maryland Crime Victims Resource Center, Inc., National Center for Victims of Crime, and National Organization for Victim Assistance (Paul R. Q. Wolfson, 202.663.6000) National District Attorneys Association (Sasha N. Rutizer, 703.519.1681) States of Washington, Alabama, Alaska, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Utah, Vermont, West Virginia, Wisconsin, and Wyoming, and the Territory of United States Virgin Islands (Anne E. Egeler, 360.753.7085) United States Senators Orrin G. Hatch, Dianne Feinstein, Charles E. Grassley, Edward J. Markey, John McCain, Patty Murray, and Charles E. Schumer (Neal Kumar Katyal, 202.637.5600) Vicky and Andy (Stuart Banner, 310.206.8506) Womens and Childrens Advocacy Project and Justice for Children (Wendy J. Murphy, 617.422.7410)

In Support of Petitioner Respondent Michael Wright (Robin E. Schulberg, 985.871.8213) In Support of Respondent American Professional Society on the Abuse of Children (Marci A. Hamilton, 215.353.8984) Domestic Violence Legal Empowerment and Appeals Project, Legal Momentum, the National Coalition Against Domestic Violence, Professor Margaret Drew, Professor Leigh Goodmark, and Professor Margaret Garvin (Margaret Garvin, 503.768.6953) Dutch National Rapporteur on Trafcking in Human Beings and Sexual Violence against Children (W. Warren H. Binford, 503.370.6758) ECPAT International (Daniel C. Moon, 213.620.7700) Mothers Against Drunk Driving (Steven J. Kelly, 410.385.2225) National Association to Protect Children (Russell E. McGuire, 540.967.2205)

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