Thursday, November 1, 2012

Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

This article first appeared in the October 31, 2012, issue of the National Law Journal’s Supreme Court Insider.

Paul Cassell, a former federal judge, represents child pornography victims in a series of federal appellate cases. In October alone, Cassell notched a win and a loss in two circuit courts and argued in another. The case he won created a circuit split about restitution for victims, which the U.S. Supreme Court will almost certainly be asked to review.

A former clerk to Chief Justice Warren Burger at the Supreme Court and then-Judge Antonin Scalia at the U.S. Court of Appeals for the D.C. Circuit, Cassell served as a federal district judge in Utah from 2002-2007. He is currently a professor at the University of Utah’s S.J. Quinney College of Law. With the assistance of law students in the Utah Appellate Clinic, Cassell has been involved in litigation throughout the country on behalf of victims.

Under 18 U.S.C. § 2259, child pornography victims are entitled to restitution from defendants for losses in several listed categories, among them: medical expenses, therapy costs, lost income, attorneys’ fees, and “any other losses suffered by the victim as a proximate result of the offense.”

The last phrase is the source of the circuit split.

On October 1, in a win for Cassell, the en banc 5th Circuit concluded that the “proximate result” requirement applies only to the last category, “any other losses.” The 5th Circuit acknowledged that its reading of the statute splits with “[a]ll our sister circuits that have addressed this question.”

Eight federal appellate courts have held that proximate cause applies to all losses. Put another way, there must be some direct link between the defendant’s offenses and the victim’s losses.

The split has important consequences.

Under the majority approach, it is more difficult for victims to collect. Defendants who possess or transport images may not cause a direct loss in the same way that producers of images do. The defendants in the 5th Circuit were guilty of possession, making them harder to reach for restitution.

On October 24, just weeks after the 5th Circuit decision, Cassell lost a case in the 9th Circuit, one of the courts that follows the majority rule. The 9th Circuit affirmed its precedent and expressly declined to adopt the 5th Circuit decision.

In an earlier appeal in the same matter, the 9th Circuit said that “the responsibility lies with Congress, not the courts, to develop a scheme to ensure that defendants . . . are held liable for the harms they cause through their participation in the market for child pornography.”

In its October 24 opinion, the 9th Circuit also raised the possibility of Supreme Court intervention.

Both the 5th and 9th Circuit decisions could be appealed to the Supreme Court soon. The clear split on an important, recurring issue of federal law makes them cases to watch. A former federal judge’s participation also gives the split greater visibility.

Work continues in other cases, as well.

According to the Utah College of Law website, quoting one of Cassell’s students, the 5th Circuit decision “came down in our favor about seven minutes before Professor Cassell got up to argue [on restitution before the 7th Circuit]. That decision changed the face of the argument and the feeling in the courtroom.”

The case was argued on October 1 in a special 7th Circuit sitting at the University of Notre Dame Law School and is pending.