In re Unknown

• Citation: 636 F.3d 190
• Decision Date: 22 March 2011
• Docket Number: Nos. 09–41238,09–41254.,s. 09–41238
• Parties: In re: AMY UNKNOWN, Petitioner.United States of America, Plaintiff–Appellee,Doyle Randall Paroline, Defendant–Appellee,v.Amy Unknown, Movant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

636 F.3d 190

In re: AMY UNKNOWN, Petitioner.United States of America, Plaintiff–Appellee,Doyle Randall Paroline, Defendant–Appellee,

v.Amy Unknown, Movant–Appellant.

Nos. 09–41238

09–41254.

United States Court of Appeals, Fifth Circuit.

March 22, 2011.

James R. Marsh, Marsh Law Firm, White Plains, NY, Paul G. Cassell (argued), Salt Lake City, UT, for Amy Unknown.Stanley G. Schneider, Schneider & McKinney, P.C., Houston, TX, Fred Rimes Files, Jr. (argued), Bain, Files, Jarrett, Bain & Harrison, Tyler, TX, for Paroline.Amanda Louise Griffith, Asst. U.S. Atty., U.S. Attorney's Office, Eastern District of Texas, Plano, TX, William D. Baldwin, Traci Lynne Kenner (argued), Asst. U.S. Attorneys, U.S. Attorney's Office, Eastern District of Texas, Tyler, TX, for U.S.Appeals from the United States District Court for the Eastern District of Texas.Before JONES, Chief Judge, and JOLLY and GARZA, Circuit Judges.EDITH H. JONES, Chief Judge:¹

“Amy,” the victim of childhood sexual abuse and of a widely broadcast set of photos depicting her abuse, has pursued restitution under the Crime Victims Rights' Act (“CVRA”), 18 U.S.C. § 3771(a)(6), against defendants who viewed her photos on the internet. Her appeal from the district court's denial of relief arrives in an unusual posture. She filed both a direct appeal under 28 U.S.C. § 1291 and a petition for a writ of mandamus under 18 U.S.C. § 3771(d)(3). A panel of this court denied mandamus. In re Amy, 591 F.3d 792 (5th Cir.2009). This panel was assigned, for ease of administration, both the direct appeal and Amy's motion for panel rehearing of her mandamus petition. We need not reach the issue whether a crime victim has a right to a direct appeal, because the district court clearly and indisputably erred in grafting a proximate causation requirement onto the CVRA. Consequently, Appellant's petition for panel rehearing is granted; her petition for a writ of mandamus is likewise granted, and the case is remanded to the district court to determine the amount of restitution owed by Doyle Randall Paroline.

I. Background

The National Center for Missing and Exploited Children (“NCMEC”), which filed a brief in the district court, reports that its analysts have identified over 35,000 images of Amy's abuse among the evidence in over 3,200 child pornography cases since 1998. NCMEC describes the content of these images as “extremely graphic.”

Images of Amy were among the hundreds of images of child sexual abuse that defendant Doyle Randall Paroline possessed. Paroline pled guilty to possession of child pornography in January 2009. At sentencing, Amy filed a victim impact statement and request for restitution.² See 18 U.S.C. § 2259(a). The latter sought $3,367,854, the cumulative cost of her lost income, attorney's fees, and ongoing psychological care. The government initially supported (and formally presented) Amy's request for restitution. NCMEC also filed a brief that detailed the lasting impact of sexual assault and the victim's additional suffering from the knowledge that people continue to view and circulate images of her abuse. Additional evidence before the district court included an expert evaluation of Amy's psychological condition, economic report estimating her lost earnings, and scholarly articles regarding the general effects of child pornography. United States v. Paroline, 672 F.Supp.2d 781, 792 (E.D.Tex.2009).

Notwithstanding the heartrending evidence, the district court denied Amy's request for restitution. The court held that the CVRA required Amy and the government to prove that Paroline's possession of Amy's images—as distinct from the thousands of other individuals who continue to possess and view the images—proximately caused the injuries for which she sought restitution. Id. at 791–92. The government, in advancing Amy's restitution claim, now accepts the court's premise that proximate causation is required for all types of injury listed in § 2259.

Amy immediately appealed the district court's decision. She filed both a direct appeal of the court's final order and a petition for writ of mandamus authorized by the CVRA, 18 U.S.C. § 3771(d)(3). A divided panel of this court refused the mandamus request, upholding the district court's conclusion that proximate causation permeates § 2259. In re Amy, 591 F.3d 792, 794–95 (5th Cir.2009) (“Although this circuit has not yet construed the proximate cause requirement under Section 2259, it is neither clear nor indisputable that Amy's contentions regarding the statute are correct.”). In response, Amy has sought both panel and en banc rehearing of her mandamus petition. Because her direct appeal was assigned to this panel, this panel was also assigned for purposes of rehearing the petition for mandamus.³

II. Jurisdiction

The first question before this court is what sort of jurisdiction we have to review the district court's order. Given our conclusion that the writ of mandamus should be granted, we need not resolve the problem, posed by divided sister circuit opinions, whether the CVRA allows a victim to bring a direct appeal. The difficulty of this issue ought to be explained, however, for the benefit of future panels.

The CVRA provides that: “If the district court denies the relief sought, the movant [victim] may petition the court of appeals for a writ of mandamus.” 18 U.S.C. § 3771(d)(3). As to the government, “In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates.” 18 U.S.C. § 3771(d)(4). The CVRA does not state that victims' sole avenue for review is the writ of mandamus, nor does it authorize the government alone to bring a direct appeal.⁴ In any event, 28 U.S.C. § 1291 generally authorizes direct appeal by parties aggrieved by final district court judgments.

The government moved to dismiss Amy's direct appeal filed under § 1291, contending that mandamus is her exclusive appellate vehicle. The CVRA's express provisions confirm this proposition, according to the government and Paroline, abetted by the interpretive presumption that Congress has “legislated against the background of our traditional legal concepts....” United States v. United States Gypsum Co., 438 U.S. 422, 437, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). Prominent among the relevant legal traditions is that non-parties may not file appeals. The Supreme Court has long recognized “[t]he rule that only parties to a lawsuit, or those that properly become parties, may appeal an adverse judgment....” Marino v. Ortiz, 484 U.S. 301, 304, 108 S.Ct. 586, 98 L.Ed.2d 629 (1988) (citing United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402, 37 S.Ct. 605, 61 L.Ed. 1222 (1917)). Crime victims have not been recognized as parties, and the Federal Rules of Criminal Procedure do not allow them to intervene as parties to a prosecution. Circuit courts have applied this rule in the context of restitution. Under the Victim and Witness Protection Act (VWPA), the CVRA's predecessor that made restitution an option rather than mandatory, the Ninth Circuit held that “[n]owhere in the statute does Congress suggest that the VWPA was intended to provide victims with a private remedy to sue or appeal restitution decisions....” United States v. Mindel, 80 F.3d 394, 397 (9th Cir.1996).⁵ The government contends that decades of experience, a general prohibition on non-party appeals, and its application in the context of victims' rights stand against Amy's hope to invoke § 1291 to appeal the denial of restitution.

Moreover, a pair of recent decisions expressly denies direct appeals under the CVRA. See United States v. Hunter, 548 F.3d 1308 (10th Cir.2008), United States v. Aguirre–Gonzalez, 597 F.3d 46 (1st Cir.2010). Hunter anchored its statutory interpretation in three provisions of the CVRA: the authorization of mandamus review for victims, the government's ability to bring a direct appeal on a victim's behalf, and the statement that “[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.” Id. at 1315–16 (quoting 18 U.S.C. § 3771(d)(5)). The first two provisions support Hunter's conclusion by simple negative implication. The last of them, according to the court, implies that affording victims full appellate rights could compromise the government's ability to enter plea agreements because a victim's appeal could re-open the negotiated judgment, removing the certainty that motivates defendants to settle. Id. Hunter also suggests that precedent from other circuits supports its conclusion. It cites two decisions that applied traditional abuse-of-discretion standards while professing to conduct mandamus review. Id. at 1315 n. 5 (citing Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir.2006), In re W.R. Huff Asset Management Co., LLC, 409 F.3d 555, 562–63 (2d Cir.2005)). By “disguising” ordinary appellate review as mandamus review in § 3771(d)(3) petitions, these decisions support the conclusion that victims have no right to a direct appeal: “To hold otherwise would effectively grant victims two opportunities to appeal, both of which would be subject to identical appellate standards of review—a clearly inefficient and illogical scheme.” Id.⁶

Amy asserts that the propriety of her direct appeal is not expressly foreclosed by the CVRA and actually finds support in pre-CVRA authorities—as Congress is presumed to have been aware—as well as recent caselaw. Before the passage of the CVRA, this court heard appeals from non-parties with a direct interest in aspects of criminal prosecutions. United States v. Briggs, 514 F.2d 794 (5th Cir.1975) (holding that unindicted co-conspirators had standing to challenge passages in an indictment); United States v. Chagra, 701 F.2d 354 (5th Cir.1983) (allowing newspaper to appeal order restricting access to court hearing). A rape victim...