Circuit Split on Construing Statutory Language in Child Pornography Restitution Cases
The Fifth Circuit Court of Appeals released an order on October 1, 2012 holding that proximate cause for damages must be shown in child pornography cases to which 18 U.S.C. § 2259(b)(3)(F) applies, but to none of the other subdivisions of that statute. This is different than other circuits that have held that §2259(b)(3) generally requires proximate cause to be proven (see United States v. Laney, 189 F.3rd 954, 966 (9th Cir. 1999); United States v. Crandon, 173 F.3rd 122, 126 (3rd Cir. 1999)).
Contrary to the Third and Ninth Circuits, the Fifth Circuit held en banc that “§ 2259 imposes no generalized proximate cause requirement before a child pornography victim may recover restitution from a defendant possessing images of her abuse.” (Order, p. 42.)
Perhaps just as notable as the result is the court’s method for arriving at its conclusion—an involved discussion of statutory construction that generalizes the “proximate causation” language, rather than restricting it to the subsection in which it occurs. Although noting that the Supreme Court has held that “[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all,” (Porto Rico Railway, Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920)), the Fifth Circuit still determined that “[t]he structure and language of § 2259(b)(3) limit the phrase ‘suffered by the victim as a proximate result of the offense’ in § 2259(b)(3)(F) to the miscellaneous ‘other losses’ contained in that subsection. (Order, p. 21.)
In so reading the statute, the Fifth Circuit relied on a more recent Supreme Court ruling that “instructs that ‘a limiting clause or phrase,’ such as the ‘proximate result’ phrase in § 2259(b)(3)(F), ‘should ordinarily be read as modifying only the noun or phrase that it immediately follows.’” (Order, p. 20, citing Barnhart v. Thomas, 540 U.S. 20, 26 (2003).)