United States v. Christopher Laraneta , 700 F.3d 983 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1302
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C HRISTOPHER L. L ARANETA,
Defendant-Appellant.
A MY and V ICKY,
Intervenors.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:10-cr-00013-RL-PRC-1—Rudy Lozano, Judge.
A RGUED O CTOBER 1, 2012—D ECIDED N OVEMBER 14, 2012
Before P OSNER, W ILLIAMS, and SYKES, Circuit Judges.
P OSNER, Circuit Judge. The defendant pleaded guilty to
seven counts of violation of federal child pornography
laws, 18 U.S.C. §§ 2251(d)(1), 2252(a)(1), (a)(2), (a)(4),
and was sentenced to 30 years’ imprisonment, to be
followed by supervised release for the rest of his life,
and also to pay restitution to two women, referred to
2 No. 12-1302
pseudonymously as Amy and Vicky, in the amount of
$3,367,854.00 and $965,827.64; pornographic images of
them, as girls, were found in the defendant’s possession.
The amount awarded Amy is identical to the amount
she has requested, and usually been awarded, in literally
hundreds of other criminal cases involving pornographic
images of her. But the amount the judge ordered the
defendant to pay Vicky subtracts the restitution that she
has collected from other defendants. The appeal chal-
lenges the length of the defendant’s sentence and the
amount of restitution that the judge ordered him to pay.
The government defends the sentence but not the restitu-
tion award, and also challenges our allowing Amy and
Vicky to intervene in this appellate proceeding; and let’s
start there.
There is no counterpart in the federal rules of criminal
procedure to Rule 24 of the civil rules, which explicitly
authorizes, and regulates, intervention. But the civil
rules do not exhaust the procedural authority of federal
judges. Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991),
lists a variety of inherent powers of a federal court, in-
cluding power to “impose silence, respect, and decorum,”
“control admission to its bar,” “discipline attorneys,”
“punish for contempts,” “vacate its own judgment
upon proof that a fraud has been perpetrated upon
the court,” “conduct an independent investigation in
order to determine whether it has been the victim of
fraud,” “bar from the courtroom a criminal defendant
who disrupts a trial,” “dismiss an action on grounds of
forum non conveniens,” and “act sua sponte to dismiss a
suit for failure to prosecute.” In United States v. Rollins,
607 F.3d 500, 502 (7th Cir. 2010), we added that
No. 12-1302 3
“motions to reconsider (in district courts) and petitions
for rehearing (in courts of appeals) are ordinary elements
of federal practice that exist in criminal prosecutions
despite their omission from the Rules of Criminal Pro-
cedure.”
Although in International Union, United Automobile,
Aerospace & Agricultural Implement Workers of America, AFL-
CIO, Local 283 v. Scofield, 382 U.S. 205, 217 n. 10 (1965),
the Supreme Court left open the question whether there
is inherent power to allow intervention at the appellate
level, we answered the question in the affirmative long
ago, see Hurd v. Illinois Bell Tel. Co., 234 F.2d 942, 944
(7th Cir. 1956), and other courts have joined us. See
In re Grand Jury Investigation Into Possible Violations of
Title 18, U.S. Code, Sections 201, 371, 1962, 1952, 1951, 1503,
1343 & 1341, 587 F.2d 598, 601 (3d Cir. 1978); United
States v. Bursey, 515 F.2d 1228, 1238 n. 24 (5th Cir. 1975).
Intervention has even been permitted in district court
cases in which the conditions for intervention in Rule 24
were not satisfied. Missouri-Kansas Pipe Line Co. v. United
States, 312 U.S. 502, 505-06 (1941); Textile Workers Union
of America, CIO v. Allendale Co., 226 F.2d 765, 767-68
(D.C. Cir. 1955) (en banc).
We therefore consider the question whether to allow
victims of crime to intervene in criminal proceedings
(rather than merely to be heard, a right granted them
by the Criminal Victims’ Rights Act, 18 U.S.C. § 3771(a)(4))
to be one of expedience rather than of power. Yet even
if a right to intervene in criminal cases were limited
to victims who like Amy and Vicky have a financial
4 No. 12-1302
stake because they have a colorable claim to restitution,
it would be a mistake to allow intervention at the
district court level. That would be a recipe for chaos.
Imagine plea bargaining in which intervening crime
victims argue for a different bargain from that struck
between the government and the defendant, or trials at
which victims’ lawyers present witnesses and cross-
examine the defendant’s witnesses or participate
in the sentencing hearing in order to persuade the
judge to impose a harsher sentence than suggested by
the prosecutor.
The complications of intervention are many fewer at
the appellate stage, where participation is limited to
filing briefs and, at the appellate court’s discretion, par-
ticipating in oral argument, which we permitted in
this case. The Criminal Victims’ Rights Act allows a
crime victim whose claim of restitution is denied to
seek mandamus in the court of appeals, 18 U.S.C.
§ 3771(d)(3), but makes no provision for participation by
a victim who has been successful in the district court.
Suppose the government declines to defend the restitu-
tion award when the award is challenged by the
defendant in his appeal from his sentence. The case for
intervention is most compelling when a person has a
direct financial stake in a case and cannot be certain that
any party has an interest in defending that stake. The
government has no financial stake in restitution to victims
of crime. And judicial power to allow intervention at
the appellate level can be exercised in a case such as
this without causing the problems that intervention in
No. 12-1302 5
the district court would cause—indeed without causing
any problems at all that we can see.
The statutory provision entitling a victim of crime to
seek mandamus if restitution is denied strengthens our
conclusion. If we reversed the award to Amy and Vicky
and directed the district court to vacate it, they could
then seek mandamus, and if we denied it they could
ask the Supreme Court to review the denial. Allowing
them to participate at this stage of the appellate
process avoids a second trip to the appellate courts, and
also ensures that they’ll be “able to present their argu-
ments on the issues to a reviewing court which has not
crystallized its views.” International Union, United Automo-
bile, Aerospace & Agricultural Implement Workers of America,
AFL-CIO, Local 283 v. Scofield, supra, 382 U.S. at 213. Par-
ticipation as amici curiae would not be an adequate
substitute, for as nonparties they could not seek
rehearing or rehearing en banc or review by the Supreme
Court, should our decision go against them.
We are mindful of the Eleventh Circuit’s holding in
United States v. Alcatel-Lucent France, SA, 688 F.3d 1301,
1306 (11th Cir. 2012) (per curiam), that a crime victim
cannot appeal from a denial of restitution in a criminal
case because the victim is not a party, and the district
court cannot make the victim a party, thus enabling him
or her to appeal, by allowing the victim to intervene.
We have no quarrel with that result, because, as we
have just said, we do not think a crime victim should
be permitted to intervene in the district court. Our case
is different. The crime victims, having prevailed in the
6 No. 12-1302
district court, are not trying to appeal. They are seeking
only to intervene in this court and only to defend the
award they received in the district court. Whether inter-
vention at the appellate level only is permissible was
not an issue in the Eleventh Circuit’s case.
We begin our discussion of the merits of the de-
fendant’s appeal with his challenge to the length of the
prison sentence. The maximum prison sentence for any
of the first six offenses (offenses of receiving, distributing,
and transporting child pornography) to which he pleaded
guilty was 20 years. The judge ordered the sentences for
these six offenses to run concurrently. It was only by
making the sentence for the seventh offense—possession of
child pornography, an offense for which the maximum sen-
tence is 10 years, 18 U.S.C. § 2252(b)(2)—consecutive to
the other sentences that the judge jacked up the defen-
dant’s prison term to 30 years. This was nevertheless
a below-guidelines sentence. The guidelines sentence
would have been life imprisonment (though it could not
have been imposed, because it would have exceeded
the statutory maximum), in part because of the “pattern
of activity” guideline, U.S.S.G. § 2G2.2(b)(5), which in-
creases the base offense level by five points if the defen-
dant “engaged in a pattern of activity involving the sexual
abuse or exploitation of a minor.” Application Note 1
amplifies the definition to cover “any combination of
two or more separate instances of the sexual abuse or
sexual exploitation of a minor by the defendant, whether
or not the abuse or exploitation (A) occurred during the
course of the offense; (B) involved the same minor; or
(C) resulted in a conviction for such conduct.” The
district judge ruled that the government had proved that
No. 12-1302 7
the defendant had engaged in a pattern of such activity,
and that ruling was not clearly erroneous.
But the defendant complains that the pattern of activity
guideline allowed, or more precisely encouraged, the
judge to make the length of imprisonment as long as
possible by invoking criminal conduct for which the
defendant had never been convicted. That is true, but
merely illustrates the unexceptionable general proposition
that conduct relevant to the crime of conviction can be
considered in calculating a sentence even if that conduct
did not result in a conviction. See, e.g., United States v.
Watts, 519 U.S. 148, 156-57 (1997) (per curiam). All that
the sentencing guidelines do is create suggested (no
longer mandatory) sentencing ranges inside the statu-
tory ranges, and it is proper to vary the interior ranges
in light of other criminal conduct by the defendant that
is related to the conduct for which he’s been convicted,
even if that other conduct, because it did not result in a
conviction, is not counted as criminal history in the
criminal-history tables that also influence guidelines
ranges. Other acts of sexual predation by a defendant
convicted of sexual predation have predictive sig-
nificance with regard to the likelihood of recidivism,
and likelihood of recidivism is an uncontroversially
relevant consideration in deciding how long a defendant
should be incapacitated (by being imprisoned) from
committing further crimes, provided of course that the
sentence does not exceed the statutory maximum.
Relevant conduct also bears on the length of sentence
that is necessary to deter others (more realistically,
8 No. 12-1302
some others; if deterrence were fully effective, there
would be no crime) from committing the same crime as
the defendant. Suppose a defendant committed twenty
serious sex crimes but has been convicted only of the
one for which he’s being sentenced. A long sentence
is appropriate to remind him and others that even if
sexual predators get away with their crimes most of
the time, if they’re caught their other crimes (if discov-
ered) will figure in their sentences and so will be at least
indirectly punished—and indirect punishment is better
than no punishment.
The defendant further complains that the judge should
not have given him a consecutive sentence for the
offense of possession. Consecutive sentencing for inde-
pendent crimes (as distinct from consecutive sentences
for “a single crime, procedurally proliferated”—that is,
where “morally the transaction was a single wrong, to
be expiated by a single punishment,” United States ex rel.
Mignozzi v. Day, 51 F.2d 1019, 1021 (2d Cir. 1931) (L.
Hand, J.)) is proper because the effect of a concurrent
sentence is to reduce or wipe out a sentence for a crime
of which the defendant has been convicted. Had the
judge made the defendant’s 10-year sentence concurrent
with his 20-year sentences, the 10-year sentence would
have been nullified. “Would it not be absurd, to make
one imprisonment a punishment for two offences?”
Russell v. Commonwealth, 7 Serg. & Rawle 489, 1882 WL
13700, at *2 (Pa. 1882). Absurd or not, it is not required.
The defendant’s remaining challenges to the prison
component of his sentence are well-nigh frivolous. They
No. 12-1302 9
are that his sentence punishes him more harshly than
similar offenders and even than criminals who commit
more serious, because violent, offenses, and that viewing
child pornography does not prove that the viewer has a
sexual interest in children. The district court addressed
and rejected both challenges, the first because the dis-
parities were, as he was entitled to rule, “overridden by
the seriousness of the offense.” And remember that the
defendant’s sentence, though long, is a below-guidelines
sentence.
The second challenge we barely understand. We can
imagine a person who chanced on a pornographic
image of a child looking at it out of curiosity; and of
course police officers, lawyers, and judges, in a prosecu-
tion involving child pornography, will view child pornog-
raphy without being expected to find it sexually arous-
ing. But the defendant doesn’t fall into any of these classes
of innocent viewers; anyway he had revealed in chat
logs introduced in evidence his interest in engaging in
sexual acts with children. And the district court’s
finding that the defendant’s involvement with child
pornography was part of a pattern of sexual abuse
was based on evidence of his having sexually abused
children physically, rather than just by possessing
or distributing images of them.
The restitution component of the defendant’s sentence,
to which we now turn, presents more difficult issues
than the prison component. 18 U.S.C. § 2259(a) provides
that “the court shall order restitution for any offense
under” chapter 110, the chapter in Title 18 in which
10 No. 12-1302
one finds the federal criminal laws against sexual ex-
ploitation and abuse of children, and the order “shall
direct the defendant to pay the victim (through the ap-
propriate court mechanism) the full amount of the
victim’s losses as determined by the court.” 18 U.S.C.
§ 2259(b)(1).
Amy was 8 years old when she was repeatedly raped
by her uncle, who photographed the rapes, and other
forced sexual acts that he committed against her, in order
to create child pornography, which was widely dissemi-
nated online. Vicky was 10 when she was first raped, and
images of rapes of her that were committed over a two-
year period were also widely disseminated online. Alto-
gether tens of thousands of pornographic images of
Amy and Vicky have circulated on the Internet. The
losses for which the two women (for they are now adults)
sought and received restitution in the district court in-
cluded incurred and expected costs of therapy, lost (and
expected to be lost) income because of psychological
damage that impairs their ability to work, and other
items, all within the specific statutory definitions (of
which more shortly) of victims’ compensable losses.
Amy traces all her losses to psychological damage
caused by her learning that pornographic images of her
had been widely disseminated. She says that she had re-
covered from the psychological damage imposed by the
rapes themselves but relapsed when she learned about
the dissemination. Vicky attributes her lost income to
“hypervigilance” triggered by the dissemination of porno-
graphic images of her, and her psychologist has opined
No. 12-1302 11
that her continuing need for counseling is attributable
to the rapes as well.
The judge assessed Vicky’s loss as $1,224,697.04, but
because she had already recovered $258,869.40 from
other defendants, he ordered the defendant to pay only
the unpaid balance of $965,827.64. Yet as we noted
he awarded the entirety of Amy’s losses, calculated at
$3,367,854, even though her lawyer acknowledges that
she has already recovered about half those losses. The
lawyer should have specified the entire amount re-
covered and the district court should then have sub-
tracted that amount, as he did with Vicky.
The defendant does not question the judge’s calcula-
tion of Amy’s and Vicky’s losses. But he denies that he’s
responsible for those losses, or at least for all of them
that remain unpaid. Images of Amy and Vicky were
found on his computer, true, but he was only one of
an unknown number of viewers. Although he was
found guilty of distributing child pornography, there is
no evidence referred to in the presentence report—and
the judge made no finding—that he distributed any of the
images involving Amy or Vicky. The government in a post-
argument submission, however, argues that there is evi-
dence in the record that some of the images uploaded
by the defendant may have been of the two girls.
Amy and Vicky argue that it doesn’t matter because the
statute, as we noted earlier, makes the defendant liable for
the “full amount of the victim’s losses,” and it is that full
amount that the judge computed; for he made no effort
to estimate the loss attributable to the defendant’s
12 No. 12-1302
viewing of pornographic images of the two girls. They
acknowledge that the defendant is liable only for losses
traceable to his crime, cf. 18 U.S.C. § 2259(c), but
they deny that the defendant’s crime has to have been
a “proximate cause” of those losses.
The statute defines “full amount of the victim’s losses”
as the costs incurred by the victim for—
(A) medical services relating to physical, psychiatric,
or psychological care;
(B) physical and occupational therapy or rehabilita-
tion;
(C) necessary transportation, temporary housing,
and child care expenses;
(D) lost income;
(E) attorneys’ fees, as well as other costs incurred; and
(F) any other losses suffered by the victim as a proxi-
mate result of the offense.
18 U.S.C. § 2259(b)(3) (emphasis added). Amy and Vicky
argue that only the losses specified in the last subsec-
tion—“any other losses”—are subject to a “proximate
cause” limitation. They rely in part on the “canon of
construction” (rule of interpretation) known as the “last-
antecedent” canon, which says that a qualification in
the last term of a series should be confined to that
term. Barnhart v. Thomas, 540 U.S. 20, 26 (2003). Another
canon, however, the “series-qualifier” canon, contradicts
the “last-antecedent” canon; it provides that a modifier
at the beginning or end of a series of terms modifies all
No. 12-1302 13
the terms. Porto Rico Railway, Light & Power Co. v. Mor, 253
U.S. 345, 348 (1920).
The modifier “proximate cause” appears at the end of
the series in subsection (b)(3), so either canon could
apply to it; we don’t know how to choose between them.
Fortunately we don’t need to choose; for however “proxi-
mate cause” might be thought to qualify a defendant’s
liability for “any other losses,” there would be no
rational basis for omitting that qualification from the
specified losses (medical services, therapy, lost income,
etc.). All that the inclusion in section 2259(b)(3) of “any
other losses” does is close loopholes that might open up
because of the detailed specification of losses in the
preceding subsections; there is no reason that any limita-
tion on liability imposed in the name of “proximate cause”
should not apply equally to the specified and the unspeci-
fied losses. Illustrative of “any other losses” are the “costs
related to schooling (school supplies, travel allowances,
uniforms, the costs of food and snacks)” for a “program for
alternative learning that would allow the child victims to
receive some type of education” because they had previ-
ously “stopped attending school altogether after their
ordeal,” involved in United States v. Doe, 488 F.3d 1154,
1159, 1161-62 (9th Cir. 2007), and the costs incurred by
guardians who took custody of the child victims of
making necessary renovations to house them, and of
transporting them to and from school, involved in United
States v. Searle, 65 Fed. Appx. 343, 346 (2d Cir. 2003). We
can think of no reason why those costs would be subject
to a proximate-cause limitation but not the very similar
costs specified in the preceding subsections of the statute.
14 No. 12-1302
A more difficult question is what “proximate cause”
actually means. The term seems to have been around
forever. See, e.g., Peters v. Warren Ins. Co., 39 U.S. 99, 108
(1840). Cardozo in Palsgraf v. Long Island R.R., 162 N.E.
99, 100-01 (N.Y. 1928), defined it as the foreseeability of
the act alleged to have inflicted compensable harm.
That definition failed to catch on, although foreseeability
is acknowledged to be a relevant consideration, as we’ll
see shortly. The conventional definition of proximate
cause was and remains “that which, in a natural and
continuous sequence, unbroken by any efficient inter-
vening cause, produces the injury and without which
the result would not have occurred.” Spicer v. Osunkoya,
32 A.3d 347, 351 (Del. 2011); see also State v. Jackson, 697
S.E.2d 757, 759 (Ga. 2010); Ashley County v. Pfizer, Inc., 552
F.3d 659, 666 (8th Cir. 2009); Pickett v. RTS Helicopter, 128
F.3d 925, 929 (5th Cir. 1997). What “natural” and “continu-
ous” and “unbroken” and “efficient” and “intervening”
mean in the context of determining legal responsibility
for a harm remains, after centuries, unclear.
The current edition of Black’s Law Dictionary (9th ed.
2009) attempts an updating: it defines proximate cause
as “1. A cause that is legally sufficient to result in
liability; an act or omission that is considered in law to
result in a consequence, so that liability can be imposed
on the actor,” or “2. A cause that directly produces an
event and without which the event would not have oc-
curred.” Id. at 250. The first definition begs the question
(“legally sufficient to result in liability”) and the sec-
ond founders on the uncertain meaning of “directly.”
No. 12-1302 15
All that “proximate cause” does as a practical matter
is require a court to have a reason for picking out one
causal relation among the many that may have con-
tributed to an untoward event, a reason such that
making that relation a basis of legal liability would have
a socially desirable effect, such as deterrence. Holmes
v. Securities Investor Protection Corp., 503 U.S. 258, 269-70
(1992). In BCS Services, Inc. v. Heartwood 88, LLC, 637 F.3d
750, 756 (7th Cir. 2011), we examined the various kinds
of “work” done by “proximate cause” (the flip side—
“remote causation”—the set of causes that shouldn’t give
rise to legal liability—might be a clearer name for a doc-
trine that places limits on the scope of liability). We said
that it “protects the ability of primary victims of wrongful
conduct to obtain compensation; simplifies litigation;
recognizes the limitations of deterrence (unforeseeable
consequences of a person’s acts will not influence his
decision on how scrupulously to comply with the law);
and eliminates some actual or possible but probably
minor causes as grounds of legal liability.” Suppose the
defendant didn’t upload the images he possessed of
Amy and Vicky to the Internet, and someone stole them
by hacking into his computer and the hacker uploaded
them—that would be an unforeseeable consequence of
the defendant’s crime for which presumably he would
not be liable because imposing liability for unforeseeable
consequences of one’s criminal acts is unlikely to deter
those acts. And likewise if Amy or Vicky had lost
income because her psychological trauma had caused
her to have to reschedule a job interview, and in the
interim the job was filled. Cf. Guth v. Tazewell County,
No. 11-3452, 2012 WL 4901159, at *5 (7th Cir. Oct. 17, 2012);
16 No. 12-1302
Movitz v. First National Bank, 148 F.3d 760, 763-64 (7th
Cir. 1998).
But we don’t have to get deeper into the proximate-
cause briar patch. Before a judge gets to the issue of
proximate cause, he has to determine what the de-
fendant caused. Amy’s and Vicky’s brief misses this
point in stating (a proposition not wholly true, but we’ll
ignore that qualification) that “a tortfeasor cannot say
he should escape liability for sinking a barge because
someone else’s acts would have sunk the barge regard-
less.” The statement is an allusion to a discussion in W.
Page Keeton et al., Prosser and Keeton on the Law of Torts
§ 52, p. 347 (5th ed. 1984), of a class of tort cases best
illustrated by cases concerning not barges but “multiple
fires of negligent origin. If each fire would have
destroyed the plaintiff’s property, so that all the fires
were sufficient conditions of the harm but none was a
necessary condition, nevertheless the firemakers would
be jointly liable whether or not they were acting in con-
cert.” Greene v. Doruff, 660 F.3d 975, 979 (7th Cir. 2011).
Otherwise there would be two wrongdoers, a harm
from the wrongdoing—yet no liability.
Is this such a case? Amy’s and Vicky’s brief states that
“apportioning [their] harm among the numerous past,
present, and future defendants is all but impossible. But
all of them have contributed to Amy and Vicky’s images
going ‘viral’ on the internet.” It’s an open question
whether the defendant in the present case uploaded any
of Amy’s and Vicky’s images to the Internet—if he
didn’t, then he didn’t contribute to those images “going
No. 12-1302 17
viral.” If we consider only his having seen those images,
and imagine his being the only person to have seen
them, Amy’s and Vicky’s losses would not have been
as great as they were. Think of Vicky’s stalker, whose
stalking of her, inspired by seeing her pornographic
images, caused significant psychological harm that
could not be attributed to the defendant in this case to
the slightest degree if he never uploaded any of
her images.
But we learn from the government’s post-argument
submission that the defendant may have uploaded
the images of Amy and Vicky after all, and thus have
contributed to the victims’ hurt—but how much he
might have contributed to it in this way, who could
say? All that’s clear is that without a finding that he was
a distributor, it is beyond implausible that the victims
would have suffered the harm they did had he been
the only person in the world to view pornographic
images of them. The case must therefore be remanded
for a redetermination not of the victims’ total damages,
which are conceded, but of the portion allocable to
the defendant. This is the approach taken by all but one
of the courts of appeals to have addressed the issue.
United States v. Burgess, 684 F.3d 445, 460 (4th Cir. 2012);
United States v. Kearney, 672 F.3d 81, 99-100 (1st Cir. 2012);
United States v. Aumais, 656 F.3d 147, 154-55 (2d Cir.
2011); United States v. Kennedy, 643 F.3d 1251, 1264-65 (9th
Cir. 2011); United States v. Monzel, 641 F.3d 528, 539-40
(D.C. Cir. 2011); United States v. McDaniel, 631 F.3d 1204,
1209 (11th Cir. 2011). (The outlier is In re Unknown, No. 09-
41238, 2012 WL 4477444, at *21 (5th Cir. Oct. 1, 2012) (en
banc).)
18 No. 12-1302
But suppose that on remand the judge finds that the
defendant was a distributor after all. The apportion-
ment problem would then be acute, maybe insoluble.
When two or more tortfeasors, though not acting in
concert, inflict a single loss as a result of their separate
acts, they can be sued as joint tortfeasors and each
made liable for the full amount of the plaintiff’s
loss—that’s the two-fires case we mentioned earlier. (There
really are such cases—e.g., Anderson v. Minneapolis, St. Paul
& Sault Ste. Marie Ry. Co., 179 N.W. 45, 49 (Minn. 1920).)
The approach may be applicable to distributors of pornog-
raphy (and if so, though it is a tort doctrine it could be
adopted for criminal restitution) because it may be im-
possible as a practical matter to apportion liability
among distributors. The number of pornographic
images of a child that are propagated across the
Internet may be independent of the number of distributors.
A recipient of the image may upload it to the Internet;
dozens or hundreds of consumers of child pornography
on the Internet may download the uploaded image
and many of them may then upload it to their favorite
child-pornography web sites; and the chain of down-
loading and uploading and thus distributing might
continue indefinitely. That would be like the joint-fire case.
But if the defendant in this case is not responsible for
the viewing of the images of Amy and Vicky by even
one person besides himself, joint liability would be inap-
propriate. Amy and Vicky argue that psychological
harm is always “indivisible.” But it isn’t. If separate
fires join and burn down the house, the harm is
indivisible: the house is gone, and all the firemakers
No. 12-1302 19
are liable even though any one of the fires would have
destroyed the house. And in our distribution example,
the distributors may be jointly liable though again the
entire harm might have occurred had there been only
a single distributor. But often psychological harm can
be greater or less, and it would have been less in this
case if instead of tens of thousands of images of Amy’s
and Vicky’s rapes being viewed on the Internet one
image of each had been viewed by one person, the defen-
dant.
The victims argue finally that imposing joint liability
on the defendant is not a big hardship for him because
he can seek contribution from the other viewers of the
pornographic images. The judge made the defendant’s
liability “joint and several,” which would indeed
permit the defendant to seek contribution from the other
contributors to Amy’s and Vicky’s losses. It is doubtful
that the judge had the authority to do this. Contribution
in a federal case normally and we assume in a criminal
restitution case requires statutory authorization. See
Northwest Airlines, Inc. v. Transport Workers Union of Amer-
ica, AFL-CIO, 451 U.S. 77, 95-99 (1981). The Criminal
Victims’ Rights Act states (in 18 U.S.C. § 2259(b)(2)) that
an order of restitution under the Act shall be “enforced
in accordance with section 3664,” which is the general
criminal restitution statute. That section authorizes
the sentencing court to make liability for restitution
joint and several “if the court finds that more than
1 defendant has contributed to the loss of a victim,”
18 U.S.C. § 3664(h), and there is only one defendant in
this case. So there is no statutory authorization for what
the district judge did here.
20 No. 12-1302
We add that contribution in a case such as this would
be extraordinarily clumsy, when one considers that in all
likelihood all the defendants from whom restitution
is being sought by Amy and Vicky are in prison and
most of them have negligible assets to contribute to
our defendant. On the basis both of practical consider-
ations and the absence of statutory authorization, the
Second Circuit in another case involving Amy held that
contribution is not permissible unless the defendants
from whom contribution is sought are defendants in the
same case as the defendant seeking contribution. United
States v. Aumais, supra, 656 F.3d at 155-56.
The district judge ordered the defendant to pay restitu-
tion from his prison wage at a rate of $100 a year. (We
have said that the schedule of restitution payable before
the defendant is released from prison should be left to
the Bureau of Prisons to determine, United States v. Sawyer,
521 F.3d 792, 796 (7th Cir. 2008)—an issue on which the
courts are divided, see, e.g., United States v. Lemoine, 546
F.3d 1042, 1048 and n. 4 (9th Cir. 2008)—but the govern-
ment has not cross-appealed from the sentence.) It
would make little sense to permit the defendant to sue
other defendants for tiny shares of the amount of money
that he is paying. True, there’s always a chance of his
winning a lottery or otherwise coming into money, all
of which would be subject to being restitutioned away
from him. But the chance is not large enough to justify
the bother of awarding contribution rights to hundreds
of prison inmates. We have enough inmate suits as it is.
To summarize: The defendant’s prison sentence is
affirmed. The calculation of the crime victims’ losses is
No. 12-1302 21
affirmed too, except that the judge must determine how
much to subtract from Amy’s losses to reflect payments
of restitution that she has received in other cases. The
order of restitution is vacated and the case remanded
for a redetermination of the amount of restitution owed
by the defendant; that will require, besides the subtrac-
tion we just mentioned, a determination whether the
defendant uploaded any of Amy’s or Vicky’s images.
The defendant will not be permitted to seek contribution
from other defendants convicted of crimes involving
pornographic images of the two girls. And Amy and Vicky
will not be permitted to intervene in the district court.
A FFIRMED IN P ART, V ACATED IN P ART,
AND R EMANDED WITH INSTRUCTIONS.
11-14-12