United States v. Michael Monzel ( 2011 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2011 Decided April 19, 2011
No. 11-3008
UNITED STATES OF AMERICA,
APPELLEE
v.
MICHAEL M. MONZEL,
APPELLEE
AMY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cr-00243)
No. 11-3009
IN RE: AMY, THE VICTIM IN THE MISTY CHILD PORNOGRAPHY
SERIES,
PETITIONER
On Petition for Writ of Mandamus
2
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.
3
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.
4
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.
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
1
The CVRA states that “[a] crime victim has the following rights”:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any
public court proceeding, or any parole proceeding,
involving the crime or of any release or escape of the
accused.
6
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.
(3) The right not to be excluded from any such public court
proceeding, unless the court, after receiving clear and
convincing evidence, determines that testimony by the
victim would be materially altered if the victim heard other
testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding
in the district court involving release, plea, sentencing, or
any parole proceeding.
(5) The reasonable right to confer with the attorney for the
Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for
the victim’s dignity and privacy.
18 U.S.C. § 3771(a).
2
Amy directs our attention to an unpublished order from the
Eleventh Circuit that granted a victim’s motion to waive the 72-
hour deadline. See Order, In re Stewart, No. 10-12344 (May 21,
2010). Even were we inclined to give an unpublished decision from
another circuit weight that we do not give our own, see D.C. Cir.
R. 36(e)(2) (“[A] panel’s decision to issue an unpublished
disposition means that the panel sees no precedential value in that
disposition.”), the Eleventh Circuit’s order would not qualify for
such consideration because it lacked any analysis of the merits of
the motion.
7
Missing the deadline, however, does not deprive us of
jurisdiction. In Dolan v. United States, 130 S. Ct. 2533(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.
8
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).
There is a circuit split on the standard of review for
mandamus petitions brought under the CVRA. Three circuits
apply the traditional mandamus standard urged by Monzel
and the government. See In re Acker, 596 F.3d 370, 372 (6th
Cir. 2010); In re Dean, 527 F.3d 391, 394 (5th Cir. 2008); In
re Antrobus, 519 F.3d 1123, 1125 (10th Cir. 2008). Four do
not. See Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017-18
(9th Cir. 2006) (reviewing petition under the more generous
“abuse of discretion or legal error” standard); In re W.R. Huff
Asset Mgmt. Co., 409 F.3d 555, 563-64 (2d Cir. 2005)
(reviewing petition for “abuse of discretion”); see also In re
Stewart, 552 F.3d 1285, 1288-89 (11th Cir. 2008) (granting
petition without asking whether victim had a clear and
indisputable right to relief); In re Walsh, No. 06-4792, 2007
WL 1156999, at *2 (3d Cir. Apr. 19, 2007) (unpublished)
(stating in dicta that “mandamus relief is available under a
different, and less demanding, standard under 18 U.S.C.
§ 3771”).
9
We think the best reading of the statute favors applying
the traditional mandamus standard. To begin with, there is no
indication that Congress intended to invoke any other
standard. That Congress called for “mandamus” strongly
suggests it wanted “mandamus.” See Morissette v. United
States, 342 U.S. 246, 263 (1952) (“[W]here Congress borrows
terms of art in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably knows and
adopts the cluster of ideas that were attached to each
borrowed word in the body of learning from which it was
taken and the meaning its use will convey to the judicial mind
unless otherwise instructed.”). Furthermore, the paragraph
that follows the mandamus provision states that the
government may obtain ordinary appellate review of an order
denying relief to a crime victim: “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). That Congress
expressly provided for “mandamus” in § 3771(d)(3) but
ordinary appellate review in § 3771(d)(4) invokes “the usual
rule that when the legislature uses certain language in one part
of the statute and different language in another, the court
assumes different meanings were intended.” Sosa v. Alvarez-
Machain, 542 U.S. 692, 711 n.9 (2004) (internal quotation
marks omitted). If the government can obtain ordinary
appellate review via mandamus, as Amy asserts, it is unclear
what purpose § 3771(d)(4) serves by providing the
government the same thing on direct appeal.
Finally, the abbreviated 72-hour deadline suggests that
Congress understood it was providing the traditional
“extraordinary remedy” of mandamus. In re Brooks, 383 F.3d
1036, 1041 (D.C. Cir. 2004). Courts will often be able to meet
the compressed timeline under the traditional standard,
because determining whether the lower court committed a
10
“clear and indisputable” error will not normally require
extensive briefing or prolonged deliberation. By contrast, full
briefing and plenary appellate review within the 72-hour
deadline will almost always be impossible. Cf. Antrobus, 519
F.3d at 1130 (“It seems unlikely that Congress would have
intended de novo review in 72 hours of novel and complex
legal questions . . . .”).
Amy’s arguments that Congress provided ordinary
appellate review but called it “mandamus” are not persuasive.
Instructing courts to “ensure” that a crime victim is afforded
certain rights, 18 U.S.C. § 3771(b)(1) (directing court to
“ensure that the crime victim is afforded the rights described
in [§ 3771(a)]”), says nothing about the standard of review.
Neither does the fact that the court of appeals must “take up
and decide” a petition within 72 hours. Id. § 3771(d)(3). A
court that denies relief under the traditional mandamus
standard has most certainly “take[n] up and decide[d]” the
petition.3
Amy’s resort to legislative history fares no better. She
points particularly to a comment by Senator Feinstein, one of
the CVRA co-sponsors, that § 3771(d)(3) makes “a new use
of a very old procedure, the writ of mandamus.” 150 CONG.
REC. 7295 (2004). Even assuming that the words of a single
lawmaker could determine the meaning of the CVRA, the
Senator’s statement says nothing about the standard of review
for mandamus. More plausibly, her comment refers to the fact
that prior to the CVRA most courts denied crime victims any
opportunity to challenge lower court decisions impairing their
3
Senator Feinstein’s remark that “while mandamus is generally
discretionary, [§ 3771(d)(3)] means that courts must review these
cases,” 150 CONG. REC. 7304 (2004) (emphasis added), is of no
help to Amy, either. A court applying the traditional mandamus
standard to a CVRA petition still “reviews” the petition.
11
rights as victims, whether through mandamus or otherwise.
See, e.g., United States v. McVeigh, 106 F.3d 325, 336 (10th
Cir. 1997) (dismissing for lack of standing victims’
mandamus petition and appeal of district court order
prohibiting victims from attending trial); United States v.
Mindel, 80 F.3d 394, 398 (9th Cir. 1996) (dismissing for lack
of standing victim’s appeal of restitution order and related
mandamus petition); see also United States v. Aguirre-
González, 597 F.3d 46, 54 (1st Cir. 2010) (“[T]he default rule
[is] that crime victims have no right to directly appeal a
defendant’s criminal sentence.”). By providing victims the
opportunity to challenge such decisions through mandamus,
Congress did indeed make a “new use of a very old
procedure.”4
IV
To prevail on the merits of her petition for mandamus,
Amy must show that she has a clear and indisputable right to
relief, that the district court has a clear duty to act, and that
4
Similarly, there is no reason to read Senator Feinstein’s statement
that § 3771(d)(3) permits crime victims to “in essence, immediately
appeal a denial of their rights by a trial court,” 150 CONG. REC.
7295, or Senator Kyl’s comment that “appellate courts are designed
to remedy errors of lower courts,” id. at 7304, to suggest that either
senator intended ordinary appellate review to apply. A crime
victim’s ability to “immediately appeal” a denial of her rights does
not turn on the applicable standard of review, and a court applying
the traditional mandamus standard can still remedy errors of law,
provided the errors were clear and the petitioner has a right to
relief. Here again, that Congress specifically provided for
mandamus review suggests it intended appellate courts to remedy
district court errors dealing with victims’ rights only when such
errors were clear and indisputable.
12
she has no other adequate remedy. See Power, 292 F.3d at
784. Amy’s petition satisfies each of these conditions.
A
As a crime victim Amy has a “right to full and timely
restitution as provided in law,” 18 U.S.C. § 3771(a)(6), and
the district court has a corresponding duty to “direct” Monzel
to pay “the full amount of [her] losses as determined by the
court,” id. § 2259(b)(1). Because the record does not establish
that Monzel’s possession of her image caused all of her
losses, Amy does not have a right to the full $3,263,758 she
seeks. She is, however, entitled to the amount of her losses
that Monzel proximately caused. Because the $5000 the court
awarded was, by its own acknowledgement, less than the
amount of harm Monzel caused Amy, we grant her petition in
part.
1
Section 2259 directs the district court to order the
defendant to pay restitution to the “victim” of a crime of child
sexual exploitation. See id. § 2259(a)-(b). “Victim” is defined
as “the individual harmed as a result of a commission of a
crime under this chapter.” Id. § 2259(c). Read together, these
provisions tie restitution awards to harms caused “as a result”
of a defendant’s crime.
Section 2259 further instructs the court to award “the full
amount of the victim’s losses,” id. § 2259(b)(1), defined as
“any costs incurred by the victim for” six categories:
(A) medical services; (B) physical and occupational therapy
or rehabilitation; (C) necessary transportation, temporary
housing, and child care expenses; (D) lost income;
(E) attorneys’ fees and other litigation costs; and (F) a catch-
all category of “any other losses suffered by the victim as a
13
proximate result of the offense,” id. § 2259(b)(3)(A)-(F).
There is a circuit split over whether the proximate cause
requirement in the catch-all category also applies to the
preceding categories. Most circuits to consider the issue have
held that it does. See United States v. McDaniel, 631 F.3d
1204, 1208-09 (11th Cir. 2011); United States v. Laney, 189
F.3d 954, 965 (9th Cir. 1999); United States v. Crandon, 173
F.3d 122, 125 (3d Cir. 1999). The Fifth Circuit alone has held
it does not. In re Amy Unknown, No. 09-41238, slip op. at 12
(Mar. 22, 2011). We join the plurality in concluding that all of
the categories require proximate cause. Unlike those circuits,
however, our reasoning rests not on the catch-all provision of
§ 2259(b)(3)(F), but rather on traditional principles of tort and
criminal law and on § 2259(c)’s definition of “victim” as an
individual harmed “as a result” of the defendant’s offense.
It is a bedrock rule of both tort5 and criminal law that a
defendant is only liable for harms he proximately caused. See
RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL
AND EMOTIONAL HARM § 26 cmt. a (2010) (calling proximate
cause a “requirement[] for liability in tort”);6 W. PAGE
KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS
§ 41, at 263 (5th ed. 1984) (“An essential element of the
5
Although § 2259 is a criminal statute, it functions much like a tort
statute by directing the court to make a victim whole for losses
caused by the responsible party. Cf. United States v. Bach, 172 F.3d
520, 523 (7th Cir. 1999) (“Functionally, the Mandatory Victims
Restitution Act is a tort statute, though one that casts back to a
much earlier era of Anglo-American law, when criminal and tort
proceedings were not clearly distinguished.”). Thus, tort doctrine
informs our thinking here.
6
The Restatement (Third) of Torts uses the term “scope of liability”
in favor of “proximate cause.” See RESTATEMENT (THIRD) OF
TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26
cmt. a.
14
plaintiff’s cause of action for negligence, or . . . any other tort,
is that there be some reasonable connection between the act or
omission of the defendant and the damage which the plaintiff
has suffered. This connection usually is dealt with by the
courts in terms of what is called ‘proximate cause’ . . . .”);
WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.4, at
464 (2d ed. 2003) (“[For] crimes so defined as to require not
merely conduct but also a specified result of conduct, the
defendant’s conduct must be the ‘legal’ or ‘proximate’ cause
of the result.”); see also id. § 6.4(c), at 471 (“The problems of
[proximate] causation arise in both tort and criminal settings,
and the one situation is closely analogous to the other. . . .
[T]he courts have generally treated [proximate] causation in
criminal law as in tort law . . . .”). The purpose of this rule is
clear: “legal responsibility must be limited to those causes
which are so closely connected with the result and of such
significance that the law is justified in imposing liability.”
KEETON ET AL., supra, § 41, at 264. Thus, we will presume
that a restitution statute incorporates the traditional
requirement of proximate cause unless there is good reason to
think Congress intended the requirement not to apply. See
Sherwood Bros. v. District of Columbia, 113 F.2d 162, 163
(D.C. Cir. 1940) (finding it “reasonable . . . to assume” that
where a common law rule “has become embedded in the
habits and customs of the community, . . . Congress had the
common-law rule in mind when it legislated”).
Here, nothing in the text or structure of § 2259 leads us to
conclude that Congress intended to negate the ordinary
requirement of proximate cause. By defining “victim” as a
person harmed “as a result of” the defendant’s offense, the
statute invokes the standard rule that a defendant is liable only
for harms that he proximately caused. That the definition does
not include an express requirement of proximate cause makes
no difference. “Congress [is] presumed to have legislated
15
against the background of our traditional legal concepts which
render [proximate cause] a critical factor, and absence of
contrary direction” here “[is] taken as satisfaction [of] widely
accepted definitions, not as a departure from them.” United
States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978) (quoting
Morissette, 342 U.S. at 263) (internal quotation marks
omitted).
We find the Fifth Circuit’s argument to the contrary
unpersuasive. In its recent decision, that court emphasized
that other restitution statutes define “victim” as a person
“directly and proximately harmed as a result of” the
defendant’s offense, e.g., 18 U.S.C. § 3663(a)(2); id.§ 3663A(a)(2); id. § 3771(e), whereas § 2259(c) defines
“victim” as a person harmed merely “as a result” of the
defendant’s offense. But this difference in language tells us
nothing about Congress’s intent in passing § 2259, because
the definitions in those other statutes were all enacted after
§ 2259. Compare Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, sec. 205(a)(1)(F), § (a)(2),
110 Stat. 1214, 1230 (codified at 18 U.S.C. § 3663(a)(2)), id.sec. 204(a), § (a)(2), 110 Stat. 1228 (codified at 18 U.S.C.
§ 3663A(a)(2)), and Justice for All Act of 2004, Pub. L. No.
108-405, sec. 102(a), § (e), 118 Stat. 2260, 2263 (codified at
18 U.S.C. § 3771(e)), with Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322,
sec. 40113(b)(1), § (f), 108 Stat. 1796, 1910 (codified at 18
U.S.C. § 2259(c)). “[L]ater laws that ‘do not seek to clarify an
earlier enacted general term’ and ‘do not depend for their
effectiveness upon clarification, or a change in the meaning of
an earlier statute,’ are ‘beside the point’ in reading the first
enactment.” Gutierrez v. Ada, 528 U.S. 250, 257-58 (2000)
(quoting Almendarez-Torres v. United States, 523 U.S. 224,
237 (1998)). At most, the later statutes show that § 2259(c)’s
use of the phrase “as a result of” is not the only way to impose
16
a proximate cause requirement. They do not prove that the
phrase abrogates the requirement.
We similarly find little reason to conclude that Congress
intended to eliminate the requirement of proximate cause for
the categories of loss in § 2259(b)(3)(A)-(E) by including an
express requirement in paragraph (F)’s catch-all provision.
Compare 18 U.S.C. § 2259(b)(3)(A)-(E), with id.§ 2259(b)(3)(F) (instructing court to award restitution for
“any other losses suffered by the victim as a proximate result
of the offense”). Had Congress meant to abrogate the
traditional requirement for everything but the catch-all, surely
it would have found a clearer way of doing so. Proximate
cause ensures “some direct relation between the injury
asserted and the injurious conduct alleged.” Hemi Group,
LLC v. City of New York, 130 S. Ct. 983, 989 (2010) (quoting
Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268
(1992)) (internal quotation marks omitted). Without the
limitation such a link provides, liability would attach to all
sorts of injuries a defendant might indirectly cause, no matter
how “remote” or tenuous the causal connection.7 Id.; see also
KEETON ET AL., supra, § 41, at 266 (explaining that “the mere
7
For example, without the requirement of proximate cause, if a
victim who needed counseling as a result of Monzel’s crime were
to suffer injuries in a car accident on the way to her therapist, she
would be entitled to restitution from Monzel for any medical
expenses relating to the accident, see 18 U.S.C. § 2259(b)(3)(A)
(providing restitution for “medical services relating to physical,
psychiatric, or psychological care”), because those expenses would
not have occurred but for his crime. See RESTATEMENT (THIRD) OF
TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 26
(“Conduct is a factual cause of harm when the harm would not have
occurred absent the conduct.”). An “intervening act” (or
“superseding cause”) disrupts proximate causation, but not
causation in fact. See id. § 34 cmt. b.
17
fact of causation, as distinguished from the nature and degree
of the causal connection, can provide no clue of any kind to
singling out those [who] are to be held legally responsible,”
for “once events are set in motion, there is, in terms of
causation alone, no place to stop” (emphasis added)). It is
conceivable that Congress could intend that those who violate
laws against child sexual exploitation should pay restitution
for such attenuated harms, but it seems unlikely it did so here.
“If Congress really had wished [courts to award restitution for
losses defendants did not proximately cause], it could have
provided that. It would, however, take a very clear provision
to convince anyone of anything so odd.”8 Field v. Mans, 516
U.S. 59, 68 (1995).
2
Because restitution awards under § 2259 are limited to
harms the defendant proximately caused, we cannot say that
Amy is clearly and indisputably entitled to the full $3,263,758
she seeks. Although the government submitted evidence that
Amy suffered losses stemming from her sexual exploitation
as a child, see Mot. for Restitution at 6-7; Gov’t’s Mem. of
8
The Fifth Circuit suggests that restricting the proximate cause
requirement to § 2259(b)(3)(F)’s catch-all category would not
“open the door to limitless restitution.” Amy Unknown, No. 09-
41238, slip op. at 16. This is so, that court says, because § 2259
“includes a general causation requirement in its definition of a
victim.” Id. (emphasis added) (citing 18 U.S.C. § 2259(c) (“For
purposes of this section, the term ‘victim’ means the individual
harmed as a result of a commission of a crime under this
chapter . . . .”)). But a “general” causation requirement without a
subsidiary proximate causation requirement is hardly a requirement
at all. So long as the victim’s injury would not have occurred but
for the defendant’s offense, the defendant would be liable for the
injury.
18
Law Regarding the Victims’ Losses at 6-15, and argued
persuasively that possession of child pornography causes
harm to the minors depicted, Mot. for Restitution at 9-12; see
also New York v. Ferber, 458 U.S. 747, 758-60 (1982), it
made no showing as to the amount of Amy’s losses traceable
to Monzel. Whatever else may be said of his crime, the record
before us does not establish that Monzel caused all of Amy’s
losses.
Nor can we say that Amy is clearly and indisputably
entitled to the full $3,263,758 from Monzel on the ground that
her injuries are “indivisible.” Amy argues at length that the
causes of her injuries cannot reasonably be divided among the
unknown number of possessors and distributors of her images
and that Monzel is therefore jointly and severally liable with
other possessors and distributors for the full amount of her
losses. See RESTATEMENT (THIRD) OF TORTS:
APPORTIONMENT OF LIABILITY § 12 (2000) (“Each person
who commits [an intentional tort] is jointly and severally
liable for any indivisible injury legally caused by the tortious
conduct.”); KEETON ET AL., supra, § 52, at 347 (“[E]ntire
liability rests upon the obvious fact that each has contributed
to the single result, and that no reasonable division can be
made.”).
But the very sources upon which Amy relies undermine
her argument. Prosser, whom she quotes at length, states that
“[s]uch entire liability is imposed” where two or more causes
produce a single “result” and “either cause would have been
sufficient in itself” to produce the result or each was
“essential to the injury.” KEETON ET AL., supra, § 52, at 347.
Here, Monzel’s possession of Amy’s image, which the district
court found added to her injuries, was not “sufficient in itself”
to produce all of them, nor was it “essential” to all of them.
Amy’s profound suffering is due in large part to her
19
knowledge that each day, untold numbers of people across the
world are viewing and distributing images of her sexual
abuse. See Mot. for Restitution at 6 (“The truth is, I am being
exploited and used every day and every night somewhere in
the world by someone.”); Gov’t’s Mem. of Law Regarding
the Victims’ Losses at 8 (“Every day of my life I live in
constant fear that someone will see my pictures and recognize
me and that I will be humiliated all over again.”). Monzel’s
possession of a single image of Amy was neither a necessary
nor a sufficient cause of all of her losses. She would have
suffered tremendously from her sexual abuse regardless of
what Monzel did. See also KEETON ET AL., supra, § 52, at 346
(stating that “entire liability” is generally not imposed “where
there is [a] factual basis for holding that [the] wrongdoer’s
conduct was not a cause in fact of part of the harm”).
Similarly, the Restatement (Third) of Torts, upon which Amy
also relies, instructs that an “indivisible injury” is “one in
which the entire damages were caused by every legally
culpable act of each person.” RESTATEMENT (THIRD) OF
TORTS: APPORTIONMENT OF LIABILITY § 26 reporters’ note
cmt. g (emphasis added). As before, the government has not
shown that Monzel caused the entirety of Amy’s losses.
Joint and several liability may also be appropriate under
§ 3664(h) where there is more than one defendant and each
has contributed to the victim’s injury. See 18 U.S.C.
§ 3664(h) (“If the court finds that more than [one] defendant
has contributed to the loss of a victim, the court may make
each defendant liable for payment of the full amount of
restitution or may apportion liability among the defendants to
reflect the level of contribution to the victim’s loss and
economic circumstances of each defendant.”);9 see also
9
The government agrees with Amy that the best reading of § 2259
calls for joint and several liability in the full amount of Amy’s
20
United States v. Wall, 349 F.3d 18, 26 (1st Cir. 2003) (“Under
18 U.S.C. § 3664(h), a court issuing a restitution order is
permitted to . . . make each defendant liable for the full
amount of restitution by imposing joint and several
liability.”); accord United States v. Squirrel, 588 F.3d 207,
212 (4th Cir. 2009); United States v. Moten, 551 F.3d 763,
768 (8th Cir. 2008); United States v. Hunt, 521 F.3d 636, 649
(6th Cir. 2008); United States v. Nucci, 364 F.3d 419, 422 (2d
Cir. 2004); United States v. Booth, 309 F.3d 566, 576 (9th
Cir. 2002); United States v. Diaz, 245 F.3d 294, 312 (3d Cir.
2001). It is unclear, however, whether joint and several
liability may be imposed upon defendants in separate cases.
The Fourth and Sixth Circuits have held, in unpublished
opinions, that § 3664(h) does not apply to prosecutions where
there is only one defendant. See United States v. McGlown,
No. 08-3903, 2010 WL 2294527, at *3 (6th Cir. June 8,
2010); United States v. Channita, No. 01-4060, 2001 WL
578140, at *1 (4th Cir. May 30, 2001). The Fifth Circuit, by
contrast—without addressing § 3664(h)’s applicability—said
a district court could order joint and several liability for a lone
defendant such as Monzel under § 3664(m)(1)(A), which
provides that a district court may “enforce[]” a restitution
order “by all other available and reasonable means.” See Amy
Unknown, No. 09-41238, slip op. at 17. We need not resolve
this issue, because so long as the requirement of proximate
cause applies, as it does here, a defendant can be jointly and
severally liable only for injuries that meet that requirement.
See RESTATEMENT (SECOND) OF TORTS § 879 cmt. b (1979).
Because the record does not show that Monzel proximately
losses from her sexual exploitation as a child, but, pointing to
§ 3664(h), maintains that the statute affords the district court
discretion on whether to order joint and several liability. See Resp.
of the United States to Pet. for Writ of Mandamus at 15-16; Oral
Arg. Tr. at 42, 49.
21
caused all of Amy’s injuries, the district court did not clearly
and indisputably err by declining to impose joint and several
liability on him for the full $3,263,758 she seeks.10
The district court did, however, clearly err by awarding
an amount of restitution it acknowledged was less than the
harm Monzel had caused. Under § 3664(e), the government
bears the burden of demonstrating the amount of loss the
victim suffered “as a result of the [defendant’s] offense.” In
this case, because the government failed to submit “any
evidence whatsoever” regarding the amount of Amy’s losses
attributable to Monzel,11 Restitution Order at 3, the district
court said it had no basis upon which to calculate the amount
of harm Monzel had proximately caused her and so decided to
award “nominal” restitution of $5000, id. at 5.
10
Amy’s effort to analogize Monzel’s possession to participation in
a “joint enterprise” with “mutual agency, so that the act of one is
the act of all,” Pet. for Writ of Mandamus at 24 (quoting WILLIAM
L. PROSSER, THE LAW OF TORTS § 52, at 315 (4th ed. 1971)), also
fails. There is no evidence at all in the record that Monzel acted “in
concert” with others to distribute and possess Amy’s image, as is
required for such enterprise liability to apply. KEETON ET AL.,
supra, § 52, at 346.
11
In an opinion issued several months prior to the restitution order,
the district court concluded that Amy’s “alleged losses were
proximately caused by Monzel’s possession of [her] image[].”
United States v. Monzel, 746 F. Supp. 2d 76, 88 (D.D.C. 2010). The
court made clear, however, that it was not deciding at that point the
amount of Amy’s losses that Monzel had caused. Rather, the court
was “only identif[ying] the losses alleged for the purposes of
considering the causal connection between them and [Monzel’s]
conduct.” Id. at 84 n.12. Whether “the Government ha[d] met its
burden to prove the losses or the amount to be apportioned to
Monzel” were issues to be decided later. Id.22
But in the very next sentence the court said it had “no
doubt” that this award was “less than the actual harm”
Monzel had caused Amy. Id. at 5. This was clear and
indisputable error. A district court cannot avoid awarding the
“full amount of the victim’s losses,” 18 U.S.C. § 2259(b)(1),
simply because the attribution analysis is difficult or the
government provides less-than-ideal information. The court
must order restitution equal to the amount of harm the
government proves the defendant caused the victim. See id.§ 3664(e) (“Any dispute as to the proper amount or type of
restitution shall be resolved by the court by the preponderance
of the evidence. The burden of demonstrating the amount of
the loss sustained by a victim as a result of the offense shall
be on the attorney for the Government.”). Certainly the court
cannot award less restitution than it determines the victim is
entitled to.
We recognize, of course, that determining the dollar
amount of a victim’s losses attributable to the defendant will
often be difficult. In a case such as this one, where the harm is
ongoing and the number of offenders impossible to pinpoint,
such a determination will inevitably involve some degree of
approximation. But this is not fatal. Section 2259 does “not
impose[] a requirement of causation approaching
mathematical precision.” United States v. Doe, 488 F.3d
1154, 1160 (9th Cir. 2007). Rather, the district court’s charge
is “to estimate, based upon facts in the record, the amount of
[the] victim’s loss with some reasonable certainty.” Id.On remand, the district court should consider anew the
amount of Amy’s losses attributable to Monzel’s offense and
order restitution equal to that amount. Although there is
relatively little in the present record to guide its
decisionmaking on this, the district court is free to order the
government to submit evidence regarding what losses were
23
caused by Monzel’s possession of Amy’s image or to order
the government to suggest a formula for determining the
proper amount of restitution. The burden is on the
government to prove the amount of Amy’s losses Monzel
caused. We expect the government will do more this time
around to aid the district court. We express no view as to the
appropriate level of restitution, but emphasize that in fixing
the amount the district court must rely upon some principled
method for determining the harm Monzel proximately caused.
B
To prevail on her petition, Amy must also show that
mandamus is her only adequate remedy. See Power, 292 F.3d
at 784. Since the enactment of the CVRA, every circuit to
consider the question has held that mandamus is a crime
victim’s only recourse for challenging a restitution order. See
Aguirre-González, 597 F.3d at 52-55 (1st Cir.); United States
v. Hunter, 548 F.3d 1308, 1317 (10th Cir. 2008) (“We hold
that individuals claiming to be victims under the CVRA may
not appeal from the alleged denial of their rights under that
statute except through a petition for a writ of mandamus as set
forth by 18 U.S.C. § 3771(d)(3).”); cf. Amy Unknown, No. 09-
41238, slip op. at 11 (5th Cir.) (“affirm[ing]” that “[a crime
victim] likely has no other means for obtaining review of the
district court’s decision not to order restitution” besides
mandamus (quoting In re Amy, 591 F.3d 792, 793 (5th Cir.
2009)) (internal quotation marks omitted)).12 We agree.
12
The Sixth Circuit’s position on the issue is unclear. In In re
Acker, 596 F.3d 370 (2010), the Sixth Circuit held that a putative
victim has no right to directly appeal a district court decision not to
award restitution where the victim simultaneously files a
mandamus petition raising “identical issues” as the appeal, see id.
at 373. Acker distinguished an earlier Sixth Circuit decision, In re
24
Although we “have jurisdiction of appeals from all final
decisions of the district courts,” 28 U.S.C. § 1291, the general
rule is that “one who is not a party or has not been treated as a
party to a judgment has no right to appeal therefrom.”
Karcher v. May, 484 U.S. 72, 77 (1987). However, “[t]he
Supreme Court has ‘never . . . restricted the right to appeal to
named parties to [a] litigation,’” In re Sealed Case (Med.
Records), 381 F.3d 1205, 1211 n.4 (D.C. Cir. 2004) (omission
and second alteration in original) (quoting Devlin v.
Scardelletti, 536 U.S. 1, 7 (2002)), and “if [a] decree affects
[a third party’s] interests, he is often allowed to appeal,” id.(second alteration in original) (quoting Castillo v. Cameron
Cnty., 238 F.3d 339, 349 (5th Cir. 2001)).
Amy argues that even though she was not a party below,
she has a direct interest in the district court’s restitution order
and should therefore be allowed to appeal. Her argument,
however, overlooks that she is seeking to appeal part of
Monzel’s sentence. Regardless of the rules that govern non-
party appeals in other contexts, “the default rule [is] that
crime victims have no right to directly appeal a defendant’s
criminal sentence.” Aguirre-González, 597 F.3d at 54; see
also Hunter, 548 F.3d at 1312 (“[W]e are aware of no
precedent for allowing a non-party appeal that would reopen a
criminal case following sentencing.”).
Amy claims that several cases from this and other circuits
reflect “well-recognized authority . . . permitting non-parties
Siler, 571 F.3d 604 (2009), that permitted victims to directly appeal
a district court’s denial of their motion under the CVRA to obtain
the defendants’ presentence reports, id. at 607-09, on the ground
that the Siler victims had “been effectively treated as intervening
parties” by the district court and did not assert their rights under the
CVRA until “eighteen months after the criminal proceedings had
concluded,” Acker, 596 F.3d at 373.
25
to appeal decisions in criminal cases which directly harm
their rights.” Pet’r’s Mot. to Consolidate Appeal with
Mandamus Pet. at 8. But none of the cases she cites involved
a request by a victim to alter a defendant’s sentence. Rather,
all of them concerned disclosure of information in which the
non-party had some interest. See id. at 8-9 n.4 (citing United
States v. Antar, 38 F.3d 1348 (3d Cir. 1994); In re Subpoena
to Testify Before Grand Jury Directed to Custodian of
Records, 864 F.2d 1559 (11th Cir. 1989); Anthony v. United
States, 667 F.2d 870 (10th Cir. 1981); In re Smith, 656 F.2d
1101 (5th Cir. 1981); United States v. Hubbard, 650 F.2d 293(D.C. Cir. 1980); United States v. Briggs, 514 F.2d 794 (5th
Cir. 1974)); see also Amy’s Resp. to Gov’t Mot. to Dismiss at
17 (citing Doe v. United States, 666 F.2d 43 (4th Cir. 1981));
Hubbard, 650 F.2d at 311 n.67 (“Federal courts have
frequently permitted third parties to assert their interests in
preventing disclosure of material sought in criminal
proceedings or in preventing further access to materials
already so disclosed.”). Here, by contrast, Amy is asking the
court to revisit her restitution award, which is part of
Monzel’s sentence.13 See, e.g., 18 U.S.C. § 3663A(a)(1)
13
The only case Amy points us to where a court has allowed a
crime victim to appeal part of a defendant’s sentence is United
States v. Kones, 77 F.3d 66 (3d Cir. 1996), in which the Third
Circuit heard a victim’s appeal of a district court order denying
restitution, see id. at 68. Kones’s persuasive value on this point is
negligible, however, given that the government did not contest the
court’s jurisdiction to hear the victim’s appeal, see Def.-Appellee’s
Br. at 1, Kones, No. 95-1434 (3d Cir. Aug. 16, 1995), and the
court’s statement of its jurisdiction was one sentence long and
devoid of discussion, see 77 F.3d at 68; see also Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (stating that
“drive-by jurisdictional rulings” where jurisdiction is “assumed by
the parties[] and . . . assumed without discussion by the Court”
have “no precedential effect”); Lewis v. Casey, 518 U.S. 343, 352
26
(“[W]hen sentencing a defendant convicted of an offense
described in subsection (c), the court shall order . . . that the
defendant make restitution to the victim of the offense . . . .”);
id. § 3664(o) (“A sentence that imposes an order of restitution
is a final judgment . . . .”); United States v. Cohen, 459 F.3d
490, 496 (4th Cir. 2006) (“[R]estitution is . . . part of the
criminal defendant’s sentence.”); United States v. Acosta, 303
F.3d 78, 87 (1st Cir. 2002) (“It is undisputed that restitution is
part of a sentence.”); United States v. Syme, 276 F.3d 131,
159 (3d Cir. 2002) (“Restitution orders have long been treated
as part of the sentence for the offense of conviction . . . .”).
Amy thus runs headlong into the rule against direct appeals of
sentences by crime victims.
The CVRA does not alter this rule. To begin with,
“where a statute expressly provides a particular remedy or
remedies, a court must be chary of reading others into it.”
Transamerica Mortg. Advisors, Inc. v. Lewis, 444 U.S. 11, 19
(1979). That the CVRA expressly provides for mandamus
review makes us reluctant to read into it an implied right to
direct appeal. Moreover, the CVRA’s “carefully crafted and
detailed enforcement scheme provides ‘strong evidence that
Congress did not intend to authorize other remedies that it
simply forgot to incorporate expressly.’” Mertens v. Hewitt
Assocs., 508 U.S. 248, 254 (1993) (quoting Mass. Mut. Life
Ins. Co. v. Russell, 473 U.S. 134, 146-47 (1985)). Not only
does the CVRA provide for mandamus review, but it also
expressly authorizes the government to assert crime victims’
rights on direct appeal, see 18 U.S.C. § 3771(d)(4), and sets
forth specific rules for when crime victims may move to
reopen sentences, see id. § 3771(d)(5). That Congress
included these provisions but did not provide for direct
n.2 (1996) (“[W]e have repeatedly held that the existence of
unaddressed jurisdictional defects has no precedential effect.”).
27
appeals by crime victims is strong evidence that it did not
intend to authorize such appeals.
It is also significant that while Congress expressly
authorized the government to assert victims’ rights on direct
appeal under § 3771(d)(4), it made no such provision for
victims themselves. See id. § 3771(d)(4) (“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.”). This contrasts with § 3771(d)(3),
which authorizes both the government and victims to bring
mandamus petitions. See id. § 3771(d)(3) (stating that any
“movant” who has asserted a crime victim’s rights before the
district court may petition for mandamus); id. § 3771(d)(1)
(providing that the crime victim, the crime victim’s
representative, and the government may assert a victim’s
rights before the district court). Had Congress intended to
allow victims to directly appeal, it seems likely it would have
provided them that right under § 3771(d)(4) just as it provided
them mandamus petitions under § 3771(d)(3). Cf. Russello v.
United States, 464 U.S. 16, 23 (1983) (“[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.”).
Amy also argues that she is entitled to a direct appeal
because two other circuits permitted crime victims to appeal
restitution orders prior to the enactment of the CVRA, a
statute that was intended to broaden, not narrow, available
remedies. See United States v. Perry, 360 F.3d 519, 524-33
(6th Cir. 2004) (permitting crime victim to appeal vacatur of
lien enforcing victim’s restitution award under the Mandatory
Victims Restitution Act, 18 U.S.C. §§ 3663A, 3664); United
States v. Kones, 77 F.3d 66, 68 (3d Cir. 1996) (hearing crime
28
victim’s appeal of district court order denying restitution
under the Victim and Witness Protection Act, 18 U.S.C.
§ 3663); see also 150 CONG. REC. 7301 (statement of Sen.
Kyl) (“It is not the intent of [the CVRA] to limit any laws in
favor of crime victims that may currently exist, whether these
laws are statutory, regulatory, or found in case law.”); id.(statement of Sen. Feinstein) (“[I]t is not our intent to restrict
victims’ rights or accommodations found in other laws.”). But
even if two circuits allowed crime victims to appeal
restitution orders prior to the enactment of the CVRA, a
plurality of circuits did not. See Mindel, 80 F.3d at 398 (9th
Cir.); United States v. Kelley, 997 F.2d 806, 807 (10th Cir.
1993); United States v. Johnson, 983 F.2d 216, 217 (11th Cir.
1993); United States v. Grundhoefer, 916 F.2d 788, 793 (2d
Cir. 1990). There was no settled right of appeal for the CVRA
to narrow.14
Amy responds that the cases preventing victims from
appealing restitution orders are irrelevant because they were
decided under the Victim and Witness Protection Act
(VWPA), which, unlike § 2259, makes restitution
discretionary rather than mandatory, takes into account the
defendant’s financial circumstances, and does not provide
victims much opportunity to influence sentencing
proceedings. See 18 U.S.C. § 3663(a). We should look
instead, she argues, to United States v. Perry, 360 F.3d 519, a
2004 Sixth Circuit decision that permitted a crime victim to
appeal an adverse restitution order under the Mandatory
Victims Restitution Act (MVRA), a statute more analogous to
14
Moreover, only one circuit had ever allowed a victim to appeal
the amount of restitution. See Kones, 77 F.3d at 68 (3d Cir.).
Another circuit had allowed a victim to appeal an order impairing
her ability to collect restitution, see Perry, 360 F.3d at 522, 524-33(6th Cir.), but did not consider whether the victim could appeal the
actual amount of the award.
29
§ 2259, id. at 524-33. Perry expressly declined to follow the
VWPA cases on the ground that the MVRA is “dramatically
more ‘pro-victim’” than the VWPA, id. at 524: the MVRA
makes restitution mandatory, not discretionary, see 18 U.S.C.
§ 3663A(a)(1); requires the court to award full restitution
regardless of the defendant’s financial circumstances, see id.
§ 3664(f)(1)(A); and gives victims a role in the sentencing
process, see id. § 3664(d)(2).
But the victim in Perry was not appealing an order
awarding restitution; rather, she was appealing an order
affecting her ability to enforce an order awarding restitution.
See Perry, 360 F.3d at 522 (describing victim’s appeal of
order vacating judgment lien she had obtained to enforce her
restitution award). Granting the victim relief would not have
altered the defendant’s sentence. Here, by contrast, Amy is
appealing the order awarding her restitution and is seeking a
higher award. Granting her relief would alter the defendant’s
sentence.15
Moreover, the CVRA and the MVRA differ significantly
in the extent to which they provide remedies for challenging
restitution orders. The MVRA may provide victims an
opportunity to submit affidavits detailing their losses, see 18
U.S.C. § 3664(d)(2), but it does not provide a right to petition
the court of appeals for mandamus, grant the government
express power to assert crime victims’ rights on appeal, or set
forth procedures by which victims may move to reopen
sentences. Thus, the Supreme Court’s teaching that a
15
In any event, Perry is not the only case to consider a victim’s
right to appeal an MVRA restitution order. In United States v.
United Security Savings Bank, 394 F.3d 564 (8th Cir. 2004) (per
curiam), the Eighth Circuit said that a crime victim may not appeal
a restitution order made under the MVRA, id. at 567. Thus, a
victim’s right to appeal under the MVRA is far from settled.
30
“statute’s carefully crafted and detailed enforcement scheme
provides ‘strong evidence that Congress did not intend to
authorize other remedies that it simply forgot to incorporate
expressly,’” Mertens, 508 U.S. at 254 (quoting Russell, 473
U.S. at 146-47), applies with much greater force here than in
Perry.
For these reasons, we hold that Amy may not directly
appeal her restitution award and we grant the government’s
motion to dismiss her appeal.16 Mandamus is Amy’s only
recourse to challenge the award.
V
We grant Amy’s petition for mandamus in part and
instruct the district court to consider anew the amount of her
losses attributable to Monzel and to order restitution equal to
that amount. We further dismiss Amy’s direct appeal of her
restitution award and dismiss as moot her motion to
consolidate her mandamus petition with her direct appeal.
So ordered.
16
Amy also argues that she is entitled to appeal the district court’s
restitution order under the collateral order doctrine. Because she
cannot directly appeal her restitution award in any event, the
collateral order doctrine is of no help to her.