Eighth Circuit Dismisses Appeal by Non-Party Child Pornography Victim - In re Vicky
Because I keep a close watch on child pornography possession cases, I've written here many times before about court-ordered financial restitution for child pornography victims. This is not unlike court orders for theft defendants to pay back what they stole, except that in the case of child pornography, the victim is asking for restitution from people caught in possession of the porn--not the person responsible for making the porn. This has created a very mixed bag of decisions from the appeals courts, which disagree about whether the law permits the victims to request restitution. The split was furthered in In re Vicky, a decision by the Eighth U.S. Circuit Court of Appeals that dismissed the victim's appeal for lack of standing and also required a showing of proximate cause before making a financial reward. A dissent disagreed about the proximate cause requirement.
The underlying case is United States v. Robert Fast, in which Fast pleaded guilty to receiving and distributing child pornography. Fast's prior appeal was rejected in May of 2012. Before his sentencing, the child pornography victim who goes by "Vicky"--who routinely requests restitution in cases where the defendant was caught with "her" images--sought $952,759.81 in restitution. This is the total amount of damages she claims, minus restitution already paid. The district court agreed with Vicky that she does not need to show that Fast proximately caused her losses, and awarded $19,863.84 in restitution. On appeal, however, prosecutors agreed with Fast that proximate cause is required, and the district court awarded $3,333 on remand, calculating damages from the time Fast started possessing the pornography. Vicky filed a direct appeal of the remand award.
Fast and the prosecutors both moved to dismiss Vicky's appeal for lack of standing, and the Eighth Circuit majority agreed. The Crime Victims Rights Act, on which the restitution award is based, does not grant party status to victims, the court noted, even though Vicky correctly argued that it granted her rights. Nor was Vicky successful in her motion to intervene. And none of the cases she cites in which a nonparty was granted permission to intervene involve a request to alter the defendant's sentence. Vicky may still proceed by mandamus, the Eighth said. Indeed, the CVRA requires this, and the Eighth found sister circuits that have decided otherwise unpersuasive. Applying traditional mandamus standards, then, the Eighth found that the CVRA language at issue in the case imposed a proximate cause requirement on all of the categories of loss that Vicky was claiming--not just the final "catchall" provision. (This creates a split with several sister circuits.) In addition, the court found that the CVRA does not require an award of the full amount Vicky was seeking; Fast did not clearly cause all of Vicky's losses, and a joint and several liability ruling is not contemplated by the statute. Thus, it upheld the $3,333 award.
Though the Eighth upheld the award, this ruling is still a partial victory for Fast and any other defendant accused of contributing to a child pornography victim's losses. Though it's clear that people like Vicky have been victimized and probably suffer very serious problems, it's less clear that people like Fast are responsible for that. This decision turned on a question of the law, but many people (including judges) would agree that the underlying question of the possessor's responsibility needs an answer. Unfortunately, both the ethical questions and the legal questions require Congressional intervention, and the emotional nature of child pornography crimes makes the issue politically risky. As a cyber crime defense attorney, I hope the issue can be resolved fairly before these splits grow too much.
Seltzer Law, P.A., represents clients around the United States who are facing serious cyber crimes and sex crimes charges. Lead attorney David Seltzer is an experienced former cyber crime prosecutor for the Miami-Dade State's Attorney's office. For a free, confidential consultation, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.
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