U.S.A

• Decision Date: 19 April 2011
• Docket Number: Nos. 11–3008,11–3009.,s. 11–3008
• Citation: 641 F.3d 528,395 U.S.App.D.C. 162
• Parties: UNITED STATES of America, Appelleev.Michael M. MONZEL, AppelleeAmy, Appellant.In re Amy, the Victim in the Misty Child Pornography Series, Petitioner.
• Court: U.S. Court of Appeals — District of Columbia Circuit

641 F.3d 528

395 U.S.App.D.C. 162

UNITED STATES of America, Appellee

v.Michael M. MONZEL, AppelleeAmy, Appellant.In re Amy, the Victim in the Misty Child Pornography Series, Petitioner.

Nos. 11–3008

11–3009.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 7, 2011.Decided April 19, 2011.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cr–00243).On Petition for Writ of Mandamus.Paul Cassell argued the cause for and filed the petition for writ of mandamus for appellant/petitioner Amy. With him on the petition was James R. Marsh.Nicholas P. Coleman argued the cause for and filed the response for appellee/respondent United States of America. Roy W. McLeese III, Assistant U.S. Attorney, entered an appearance.David W. Bos, Assistant Federal Public Defender, argued the cause and filed the response for appellee/respondent Michael M. Monzel. With him on the response were A.J. Kramer, Federal Public Defender, and Neil H. Jaffee, Assistant Federal Public Defender.Before: GINSBURG, ROGERS, and GRIFFITH, Circuit Judges.Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

In December 2009, respondent Michael Monzel pled guilty to possession of child pornography. One of the images he possessed depicted the petitioner, who proceeds in this matter under the pseudonym “Amy.” Amy subsequently sought $3,263,758 in restitution from Monzel. The district court, however, awarded what it called “nominal” restitution of $5000, an amount it acknowledged was less than the harm Monzel caused her. Amy challenges the award in a petition for mandamus and by direct appeal. We grant her petition in part because the district court admitted the restitution award was smaller than the amount of harm she suffered as a result of Monzel's offense, and we dismiss her direct appeal because it is not authorized by statute.

I

A

This case involves the interplay of three statutes. 18 U.S.C. § 3771, also known as the Crime Victims' Rights Act (CVRA), grants crime victims “[t]he right to full and timely restitution as provided in law.” Id. § 3771(a)(6). If a district court denies the relief sought, the Act provides that the victim or the government “may petition the court of appeals for a writ of mandamus.” Id. § 3771(d)(3). The court of appeals is then required to “take up and decide such application forthwith within 72 hours after the petition has been filed.” Id.

18 U.S.C. § 2259 governs restitution awards for victims of child sexual exploitation and directs courts to award “the full amount of the victim's losses,” id. § 2259(b)(1), defined as costs incurred for medical services; physical and occupational therapy or rehabilitation; necessary transportation, temporary housing, and child care expenses; lost income; attorneys' fees and other litigation costs; and “any other losses suffered by the victim as a proximate result of the offense,” id. § 2259(b)(3). Neither the defendant's economic circumstances nor the victim's entitlement to compensation from another source may diminish the amount of the victim's award. See id. § 2259(b)(4)(B).

Finally, 18 U.S.C. § 3664 sets forth rules for issuing and enforcing restitution awards. As relevant here, the statute provides that “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence.” Id. § 3664(e). “The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense” rests with the government. Id.

B

On December 10, 2009, respondent Michael Monzel pled guilty to one count of distributing child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). The National Center for Missing and Exploited Children identified petitioner Amy as the minor depicted in one of the pornographic images Monzel possessed but did not distribute. Amy filed a victim impact statement seeking $3,263,758 in restitution from Monzel, an amount she claims reflects her total losses from the creation and distribution of pornographic images of her as a child—including images of her being sexually abused. Monzel argued that the district court should award Amy no more than $100 because the government had failed to show what portion of Amy's losses he had caused.

In an order entered on January 11, 2011, the district court awarded Amy $5000 in what it called “nominal” restitution. Even though the court had “no doubt” that this amount was “less than the actual harm” Monzel caused Amy, Restitution Order at 5, it declined to award more because neither the government nor Amy had submitted evidence “as to what losses were caused by Defendant's possession of [the victim's] images,” id. at 3 (alteration in original) (quoting United States v. Church, 701 F.Supp.2d 814, 832 (W.D.Va.2010)) (internal quotation marks omitted). The court also declined to hold Monzel jointly and severally liable for the entirety of the harm Amy has suffered as a result of the distribution and possession of her image by others, given “the substantial logistical difficulties in tracking awards made and money actually recovered” from such persons. Id. at 5.

Amy now petitions for a writ of mandamus under 18 U.S.C. § 3771(d)(3) directing the district court to order Monzel to pay her $3,263,758 in restitution. She has also challenged the award in a direct appeal and moves to consolidate her mandamus petition with the appeal. The government moves to dismiss Amy's appeal on the ground that crime victims may not directly appeal restitution orders. We have jurisdiction over her mandamus petition under § 3771(d)(3) but dismiss her direct appeal because it is not authorized by statute.

II

As a preliminary matter, Amy has filed a motion to waive the 72–hour statutory deadline for deciding her mandamus petition. Monzel and the government both oppose her motion on the ground that the time limit cannot be waived at the sole discretion of the crime victim. We think Monzel and the government are right: Amy may not unilaterally waive the statutory deadline, but the passing of that deadline does not defeat our jurisdiction to decide her petition.

Amy asserts that the CVRA gives a crime victim a personal, waivable right to a decision on a petition for mandamus within 72 hours, but nothing in the language of the statute supports that view. No such right is mentioned among the enumerated protections afforded to crime victims, see 18 U.S.C. § 3771(a),¹ and the Act directs that the court of appeals “shall” decide the petition within the time limit. As we have previously recognized, “ ‘[s]hall’ is a term of legal significance, in that it is mandatory or imperative, not merely precatory.” ² Exportal Ltda. v. United States, 902 F.2d 45, 50 (D.C.Cir.1990) (internal quotation marks omitted). Although the statute leaves us no room to set aside the 72–hour deadline, the multiple issues of first impression this case raises, involving several statutes and conflicting views among the circuits, called for oral argument and a published opinion that is being issued past the deadline.

Missing the deadline, however, does not deprive us of jurisdiction. In Dolan v. United States, ––– U.S. ––––, 130 S.Ct. 2533, 177 L.Ed.2d 108 (2010), the Supreme Court held that missing § 3664's 90–day deadline for determining a victim's losses does not deprive a sentencing court of power to order restitution, id. at 2539; see 18 U.S.C. § 3664(d)(5) (“If the victim's losses are not ascertainable ... 10 days prior to sentencing, ... the court shall set a date for the final determination of the victim's losses, not to exceed 90 days after sentencing.”). We think the Supreme Court's reasons for concluding that the 90–day deadline in Dolan was not jurisdictional apply with equal force to the 72–hour deadline here.

To begin with, like § 3664, the CVRA “does not specify a consequence for noncompliance with its timing provisions.” Dolan, 130 S.Ct. at 2539 (internal quotation marks omitted). And just as § 3664 emphasizes “the importance of[ ] imposing restitution upon those convicted of certain federal crimes,” Dolan, 130 S.Ct. at 2539, the CVRA stresses the need to “ensure that the crime victim is afforded the rights described in [§ 3771(a) ],” 18 U.S.C. § 3771(b)(1). Moreover, as with the 90–day deadline for determining a victim's losses, “to read [the 72–hour deadline for deciding a mandamus petition] as depriving the ... court of the power to order [relief] would harm those—the victims of crime—who likely bear no responsibility for the deadline's being missed and whom the statute also seeks to benefit.” Dolan, 130 S.Ct. at 2540. Finally, “neither the language nor the structure of [either] statute requires denying the victim [relief] in order to remedy [the] missed ... deadline,” and “doing so would defeat the basic purpose of the [statute].” Id. at 2541. We thus conclude that the CVRA's 72–hour time limit for deciding mandamus petitions is not jurisdictional and exercise our authority to decide Amy's petition outside the deadline.

III

We must first decide the standard of review that applies to petitions for mandamus filed under the CVRA. This is an open question in our circuit. Monzel and the government both urge us to apply the traditional standard for mandamus, under which Amy must show that: (1) she has a clear and indisputable right to relief; (2) the district court has a clear duty to act; and (3) no other adequate remedy is available to her. See Power v. Barnhart, 292 F.3d 781, 784 (D.C.Cir.2002). Amy argues that even though Congress called the procedure it created under the CVRA “mandamus,” 18 U.S.C. § 3771(d)(3), it intended to grant victims the ability to obtain ordinary appellate review, which in this case would mean de novo review of what it means to award “the full amount of the victim's losses.” See id. § 2259(b)(1), (3).

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