Tuesday, July 17, 2012

Mandatory Restitution statute interpreted

US v. Burgess:  The Fourth Circuit affirmed Burgess's two convictions and 292-month sentence for receipt and possession of materials depicting minors engaged in sexually explicit conduct, but it vacated the restitutionary award to the victim, "Vicky," for a calculation of the amount of loss proximately caused by Burgess.

At the sentencing hearing, the government submitted a request pursuant to the Mandatory Restitution for Sexual Exploitation of Children Act, 18 U.S.C. sect. 2259, for "Vicky," the victim portrayed in the materials seized from the appellant's residence.  The government argued that Burgess should be held "jointly and severally liable with all other defendants [for] the full amount of Vicky's losses."  The district court based its restitution award on the government's memorandum and calculation of loss. 

The appeal presented the question of whether a victim's losses attributable to a defendant under this restitution statute are limited to losses proximately caused by the defendant, or whether the plain language of the statute imposes no such limitation (as "Vicky" argued as amicus curiae).  Other circuits that have considered this issue have determined that a proximate cause limitation is applicable to this statute based upon a variety of rationales; though most them, like the Fourth Circuit here, examined the issue by using tort law principles in the construction of the criminal statute to resolve any ambiguity. 

The Fourth Circuit concluded that nothing in the text or structure of this statute indicated that Congress intended to "negate the ordinary requirement of proximate causation for an award of compensatory damages," and found that this statute "invokes the well-recognized principle that a defendant is liable only for harm that he proximately caused," and not for those injuries inflicted by others at different times.

The dissent argues that the majority's opinion in premature, in that the district court below did not make factual findings with respect to proximate cause.  Additionally, he does not believe that district courts will be able to "meaningfully say precisely x amount of Vicky's psychological injuries were caused by Burgess's watching the video, that y amount was caused by Defendant #2's watching the same video, and so on."  Further, the dissent argues that the question of whether "a defendant proximately caused some injury is entirely separate from the question of how those proximately caused losses should be allocated among several offenders." 

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