United States v. Anthony

Appellate Case: 21-6015 Document: 010110630862 Date Filed: 01/12/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 12, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 21-6015
CURTIS A. ANTHONY,
Defendant - Appellee.
---------------------
THE HUMAN TRAFFICKING
INSTITUTE,
Amicus Curiae.
_________________________________
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:15-CR-00126-C-5)
_________________________________
K. McKenzie Anderson, Assistant United States Attorney (Robert J. Troester, Acting
United States Attorney with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff -
Appellant.
Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender with him on the brief), Denver, Colorado, for Defendant - Appellee.
Nicholas D. Stellakis and Jason J. Struck, Hunton Andrews Kurth LLP, Boston,
Massachusetts, Lindsey N. Roberson and Alyssa C. Wheeler, Human Trafficking
Institute, Fairfax, Virginia, Erica N. Peterson and Michael C. Dingman, Hunton Andrews
Kurth LLP, Washington, D.C., filed an amicus curiae brief on behalf of Plaintiff -
Appellant for the Human Trafficking Institute.
_________________________________
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Before TYMKOVICH, Chief Judge, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
MATHESON, Circuit Judge.
_________________________________
Curtis Anthony was convicted of child-sex trafficking and conspiracy to
commit child-sex trafficking. He was sentenced to prison and ordered to pay
restitution to R.W. and M.M. On appeal, this court recognized that Mr. Anthony’s
conduct was reprehensible, but we vacated the restitution order as to R.W. because
the district court failed to apply but-for causation to determine restitution as required
by 18 U.S.C. § 1593. See United States v. Anthony, 942 F.3d 955 (10th Cir. 2019)
(“Anthony I”). In doing so, we rejected the Government’s argument that the statute
permitted restitution based on a sufficient-causation theory. We remanded to the
district court with instructions to recalculate restitution based on actual losses
resulting directly from Mr. Anthony’s offenses.
On remand, the Government sought restitution under the sufficient-causation
theory we had rejected in Anthony I. The district court denied the Government’s
request for Mr. Anthony to pay $1,143,000 in restitution to R.W. It found that the
Government’s expert report failed to determine which losses compensable by
restitution she would not have suffered but for Mr. Anthony’s conduct. The
Government appeals.
Although the parties agree that R.W. suffered trauma from Mr. Anthony and
was thus potentially entitled to restitution from him, under Anthony I the Government
must show that he was the but-for cause of the loss that a restitution award would
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compensate. And although this showing should be attainable in many instances and
likely could have been made here, the Government failed to make it on remand.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Statutory Framework
The Trafficking Victims Protection Reauthorization Act (the “TVPRA”)
requires “the defendant to pay the victim . . . the full amount of the victim’s losses.”
18 U.S.C. § 1593(b)(1).1 It defines the “full amount of the victim’s losses” in
accordance with the Mandatory Restitution for Sexual Exploitation of Children Act’s
definition. Id. § 1593(b)(3). Thus, under the TVPRA, the “full amount of the
victim’s losses” “includes any costs incurred, or that are reasonably projected to be
incurred in the future, by the victim, as a proximate result of the offenses involving
the victim.” Id. § 2259(c)(2).2
1
Both parties cite the TVPRA as the act that authorizes restitution. The
relevant language in 18 U.S.C. § 1593 was enacted in the predecessor statute, the
Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464.
2
Under 18 U.S.C. § 2259(c)(2), the defendant must pay the “full amount of the
victim’s losses,” which
includes any costs incurred, or that are reasonably projected
to be incurred in the future, by the victim, as a proximate
result of the offenses involving the victim, . . . including—
(A) medical services relating to physical, psychiatric, or
psychological care;
(B) physical and occupational therapy or rehabilitation;
(C) necessary transportation, temporary housing, and child
care expenses;
(D) lost income;
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B. Factual Background
We provided a detailed account of the facts of this case in Anthony I, 942 F.3d
at 960-63. We provide a summary relevant to this appeal.
In May and June 2014, when R.W. was 14 years old, William Johnson
prostituted her and subjected her to extreme physical and psychological abuse.
Anthony I, 942 F.3d at 960. Law enforcement rescued R.W. and arrested William
Johnson. He was convicted in federal court of sex trafficking a minor, sentenced to
30 years of imprisonment, and ordered to pay $900,000 in restitution to R.W. Id.3
In October 2014, R.W. fell into the hands of Maurice Johnson, another pimp,
who also abused her and prostituted her for three weeks. Id. During this time,
Maurice Johnson directed R.W. to recruit her 15-year-old friend, M.M., to be a
prostitute. Id.
On October 24, Mr. Anthony called an escort line operated by Tonya Gay
Gum, one of Maurice Johnson’s accomplices, seeking “company” at his office. Id.
(E) reasonable attorneys’ fees, as well as other costs incurred;
and
(F) any other relevant losses incurred by the victim.
The victim is therefore entitled only to restitution for actual, out-of-pocket losses. As a
leading restitution treatise explains:
[T]he loss must be tangible, actual, or “out-of-pocket.” It
cannot include intangible aspects of harm that are sometimes
included in civil damages or Guidelines sentencing, such as
intended harm, risk of harm, opportunity costs, or speculative
harm. Federal Criminal Restitution § 6:13 (2021).
3
Amended Judgment, United States v. Johnson, No. 14-CR-00341, Dist. Ct.
Doc. at 83 (W.D. Okla. Jan. 13, 2016).
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Ms. Gum sent R.W. to his office, but R.W. left after he could not locate cash to pay
her. Id. Shortly afterward, Mr. Anthony found his wallet, called the hotline, and
asked for R.W. to return. Id. This time, M.M. joined R.W. Id. Mr. Anthony paid
them to strip naked, touched them, and said “he wanted to finish the date with M.M.”
Id. at 960-61 (quotations omitted). R.W. gave M.M. a condom and waited outside
while Mr. Anthony had sex with M.M. Id. at 961.
Three days later, law enforcement officers rescued R.W. and M.M. Id. During
the three weeks under Maurice Johnson’s control, R.W. and M.M. generated
approximately $40,000 for the prostitution ring. Id. at 960. Maurice Johnson was
prosecuted in a separate action. United States v. Johnson, No. 14-CR-0342-C-1,
Dist. Ct. Doc. at 21 (W.D. Okla. Dec. 3, 2014). He pled guilty to child sex
trafficking, was sentenced to 20 years of imprisonment and 5 years of supervised
release, and ordered to pay $327,013.50 in restitution to R.W. and $308,233.50 in
restitution to M.M. Id. Dist. Ct. Doc. at 106.
In sum,
 William Johnson abused R.W. for three weeks and was ordered to pay
$900,000 in restitution.
 Maurice Johnson abused R.W. for three weeks and was ordered to pay
$327,013.50 in restitution.
 Mr. Anthony abused R.W. during one encounter described above for which
the Government seeks $1,143,000 in restitution.
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C. Procedural Background
Initial Restitution Proceedings
Mr. Anthony was indicted and charged with (1) child-sex trafficking, in
violation of 18 U.S.C. § 1591(a)(1), (b)(2), and (c); and (2) conspiracy to commit
child-sex trafficking, in violation of 18 U.S.C. § 1594(c). Id. at 961. The alleged
conspiracy spanned the three-week stretch during which R.W. was with Maurice
Johnson. Id. The superseding indictment named two other adult customers—Trung
Duong and William Baker, both of whom pled guilty—as co-conspirators. Id. Ms.
Gum was identified as an unindicted co-conspirator after she pled guilty to the
original indictment. Id.At trial, R.W., M.M., Maurice Johnson, Ms. Gum, and one of the adult
customers testified for the prosecution. Id. at 962. The jury found Mr. Anthony
guilty on both counts. Id. The district court sentenced him to the mandatory
minimum of 10 years of imprisonment and 5 years of supervised release. Id. at 963.
The Government later sought $530,000 in restitution for R.W. and $510,000
for M.M. Id. at 962. In support, it submitted (1) R.W.’s victim impact statement
from the earlier William Johnson case; (2) M.M.’s victim impact statement; (3) a
declaration from physician assistant Julie Bryant, who discussed the general trauma
R.W. suffered when she was trafficked, including by William Johnson; and
(4) evidence on (i) the costs of medical examinations, (ii) the $40,000 that M.M. and
R.W. generated for the prostitution ring, which the Government characterized as
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ill-gotten gains, and (iii) the lost wages over R.W.’s and M.M.’s lifetimes. Id.
at 962-63, 967; App., Vol. 4 at 43-184.
The district court ordered restitution in part, but it rejected the Government’s
request for R.W.’s and M.M.’s lost income. Anthony I, 942 F.3d at 963. In total, the
court ordered Mr. Anthony to pay R.W. $327,013.50 and M.M. $308,233.50. Id. He
appealed the entire restitution award for R.W.4
Anthony I
On appeal, this court vacated the district court’s restitution order as to R.W.
Recognizing that “[r]estitution may be ordered only for losses actually resulting from
the offense of conviction,” we held that the TVPRA “limit[s] restitution to losses that
the defendant’s conduct has directly and proximately caused.” Anthony I, 942 F.3d
at 964, 966. We thus held that a defendant’s conduct must be a but-for cause of the
victim’s losses for a court to order restitution. Id. at 966.
We then held that the record did not show but-for causation for R.W.’s
restitution award. Ms. Bryant, the Government’s expert, had failed to “differentiate
the psychological treatment needed to address the harms William [Johnson] caused
versus the harms caused by the conduct charged in this case.” Id. at 967. We also
said it was not clear from the Government’s evidence whether Mr. “Anthony’s harms
4
He also appealed the part of the award to M.M. for losses suffered during the
charged conspiracy. Anthony I, 942 F.3d at 963.
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were sufficient, apart from [William Johnson’s] harms, to require a lifetime of
psychological treatment.” Id. at 969.
In addition, we agreed with Mr. Anthony that the district court, in awarding
restitution, should not have considered the broad conspiracy that was charged in the
indictment because the prosecution proved only a smaller conspiracy at trial. We
found, however, that Mr. Anthony had not preserved this argument. Id. at 974.
Nonetheless, we vacated the entire restitution award as to R.W. because the record
did not satisfy the but-for causation standard. We remanded for the parties and the
district court to address restitution for R.W. anew. Id. at 975.
Proceedings on Remand
a. Dr. Missar’s report
On remand, the Government again sought restitution. It submitted an expert
report prepared by Dr. C. David Missar, a clinical psychologist.5 Dr. Missar
reviewed the record, interviewed R.W., and administered several tests to evaluate
her. His report recounted R.W.’s history and traumas, including her encounter with
Mr. Anthony.
As to restitution, Dr. Missar stated that R.W. “will require specific therapy to
address the trauma that she suffered during the abuse she endured from her step-
grandfather, Mr. William Johnson, Mr. Maurice Johnson, Ms. Gum, Mr. Duong, Mr.
5
The Government also incorporated by reference its briefing and exhibits from
the initial restitution proceeding in its briefing on remand.
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Baker, and Mr. Anthony.” App., Vol. 4 at 244.6 He opined that “[e]ach incidence of
abuse creates a separate and intense traumatic experience, whether or not the victim
experiences prior or subsequent trauma.” Id. Dr. Missar noted that R.W. “had a
history of child sexual abuse,” “other early traumatic experiences,” “and was
sexually trafficked by both Mr. Johnsons.” Id. at 244-45. But he concluded R.W.
“would need identical treatment for Mr. Anthony’s offenses . . . even if she had
sustained no prior traumas.” Id. at 245. Dr. Missar thus recommended Mr. Anthony
pay $833,000 in restitution for R.W.’s treatment costs. Id. at 246.7
Dr. Missar also recommended that Mr. Anthony pay restitution for R.W.’s
tutoring and lost wages. He stated that R.W.’s “sex trafficking interfered with her
ability to continue her education.” Id. at 246. He also opined that sex trafficking had
impaired R.W.’s ability to work to her potential. Id. He thus recommended
6
Although Dr. Missar’s report is under seal, this quote appears in the district
court’s opinion. See United States v. Anthony, 2020 WL 6468166, at *1 (D. Colo.
Nov. 3, 2020). The Government also quotes Dr. Missar’s report in its opening brief,
see Aplt. Br. at 12-14, as does Mr. Anthony, see Aplee. Br. at 11-12. In quoting Dr.
Missar’s report, we draw from quotes already in the public record.
7
Dr. Missar broke down the treatment costs as follows: (1) $30,000 for
intensive individual therapy for two years; (2) $435,000 for ongoing individual
therapy for 58 years; (3) $50,000 for group therapy for 10 years; (4) $4,800 for two
years of monthly psychiatrist visits; (5) $23,200 for 58 years of biannual psychiatrist
visits; and (6) $290,000 for 58 years of medications. App., Vol. 4 at 246.
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$310,000 in restitution for tutoring and lost wages,8 for a total recommendation of
$1,143,000. Id.The Government requested the district court to “enter an order of [$1,143,000
in] restitution from Mr. Anthony for child victim R.W. consistent with the expert
report of Dr. Missar.” Id. at 218. It did not request a hearing but said Dr. Missar was
available to testify.
On remand, the Government therefore limited its case for restitution to Dr.
Missar’s report, which focused on Mr. Anthony’s abuse of R.W. leading to his
child-sex trafficking conviction. Neither the Government nor Dr. Missar attempted
to show that R.W. was entitled to restitution based on Mr. Anthony’s participation in
a conspiracy apart from his encounter with R.W. As we discuss below, the district
court analyzed and decided the restitution issue accordingly.
b. District court decision
The district court denied the Government’s motion for restitution without a
hearing. First, it rejected the Government’s request for treatment costs based on Dr.
Missar’s report because the report did not support Dr. Missar’s conclusion that R.W.
would need identical treatment for Mr. Anthony’s offenses even without any prior
traumas. App., Vol. 3 at 240-41. Second, it rejected the Government’s request for
restitution for tutoring and lost wages because Dr. Missar’s report did not connect
8
Dr. Missar recommended (1) $10,000 for four years of tutoring and
(2) $300,000 for a lifetime of lost wages. App., Vol. 3 at 240.
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any of those losses to her encounter with Mr. Anthony. Id. at 240. Because the
Government “failed to ‘prove that Anthony’s acts justify the requested restitution
award,’” the district court held that “no restitution can be awarded.” App., Vol. 3
at 241 (quoting Anthony I, 942 F.3d at 968-69).
II. ANALYSIS
The Government argues the district court (A) abused its discretion by denying
restitution and (B) committed several procedural errors that warrant a remand. Our
review is limited to whether the district court erred in awarding no restitution based
on the Government’s failure to meet its burden under Anthony I.
A. Denial of Restitution
Legal Background
“We review the legality of a restitution order de novo, the district court’s
factual findings for clear error, and the amount of restitution for abuse of discretion.”
United States v. Parker, 553 F.3d 1309, 1323 (10th Cir. 2009). “A district court
abuses its discretion if it orders a restitution amount based on an erroneous view of
the law or on a clearly erroneous assessment of the evidence.” Anthony I, 942 F.3d
at 964 (quotations omitted).
A district court may order restitution “only for losses actually resulting from
the offense of conviction.” Id.;see United States v. Quarrell, 310 F.3d 664, 680 (10th
Cir. 2002) (“A restitution order must be based on actual loss.”). The Government
must prove those losses by a preponderance of the evidence. See United States v.
Wells, 873 F.3d 1241, 1265 (10th Cir. 2017); see also 18 U.S.C. § 3664(e). It must
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also prove the amount of loss by a preponderance. United States v. Galloway, 509
F.3d 1246, 1253 (10th Cir. 2007). But “[t]he court need not calculate the harms with
‘exact precision.’” Anthony I, 942 F.3d at 970 (quoting United States v. Ferdman,
779 F.3d 1129, 1133 (10th Cir. 2015)).
To meet its burden, the Government must establish “that the defendant’s
conduct has directly and proximately caused” the losses for which the Government
seeks restitution. Id. at 966. To prove direct causation, it must show that, but for the
defendant’s conduct, the victim would not have suffered those losses. But-for
causation “is established whenever a particular outcome would not have happened
‘but for’ the purported cause.” Bostock v. Clayton Cty, 140 S. Ct. 1731, 1739 (2020).
“In other words, a but-for test directs us to change one thing at a time and see if the
outcome changes. If it does, we have found a but-for cause.” Id. “[A] defendant
cannot avoid liability just by citing some other factor that contributed to” the harm.
Id.By contrast, the sufficient-causation test is satisfied “when multiple sufficient
causes independently, but concurrently, produce a result.” Burrage v. United States,
571 U.S. 204, 214 (2014). “To illustrate, if A stabs B, inflicting a fatal wound; while
at the same moment X, acting independently, shoots B in the head . . . also inflicting
[a fatal] wound; and B dies from the combined effects of the two wounds, A will
generally be liable for homicide even though his conduct was not a but-for cause of
B’s death (since B would have died from X’s actions in any event).” Id. at 215(quotations omitted) (alterations in original).
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As the Supreme Court has said about but-for causation, “[s]ometimes that
showing could be made with little difficulty.” Paroline v. United States, 572 U.S.
434, 450 (2014); see also Burrage, 571 U.S. at 217 (“[B]ut-for causation is not nearly
the insuperable barrier the Government makes it out to be.”).
Application
a. Restitution for lifetime treatment costs
The Government sought $853,000 in restitution to cover R.W.’s treatment
costs, including a lifetime of therapy and medication. As in district court, it relies on
Dr. Missar’s report and argues the report establishes that but for Mr. Anthony’s
offenses, R.W. would not have suffered these losses. We disagree. The report failed
to show how much of the treatment costs should be attributed to Mr. Anthony.
At most, Dr. Missar’s report proves that Mr. Anthony’s offenses were
sufficient causes for some of R.W.’s losses.9 In recommending restitution for a
lifetime of therapy and medication costs, Dr. Missar did not even attempt to
disaggregate the harms Mr. Anthony caused from the other harms R.W. suffered.
Instead, he opined that R.W. “will require specific therapy to address the trauma that
she suffered during the abuse she endured from her step-grandfather, Mr. William
Johnson, Mr. Maurice Johnson, Ms. Gum, Mr. Duong, Mr. Baker, and Mr. Anthony.”
App., Vol. 4 at 244. His opinion that R.W. “would need identical treatment for Mr.
9
We are not convinced that Dr. Missar’s recommended restitution would
survive scrutiny under a sufficient-cause analysis, but we need not address that
question here.
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Anthony’s offenses . . . even if she had sustained no prior traumas,” id. at 245,
completely sidesteps whether Mr. Anthony was the but-for cause of her need for the
full amount of lifetime treatment he recommended.
In relying on Dr. Missar’s report, the Government thus repeats the mistake it
made in Anthony I and fails to “differentiate the harms” caused by Mr. Anthony’s
offenses “from the harms that [other abusers] had caused” R.W. Anthony I, 942 F.3d
at 967. Rather than heed Anthony I, the Government again relies on its sufficient-
causation theory. It points to Dr. Missar’s statement that R.W. “would need identical
treatment for Mr. Anthony’s offenses . . . even if she had sustained no prior traumas”
and mistakenly argues it proves but-for causation. App., Vol. 4 at 245, Aplt. Br.
at 31. Whether or not this opinion may show, as a matter of sufficient causation, that
R.W. would need a lifetime of therapy and medication regardless of whether she had
suffered other traumas, it falls short of proving but-for causation. It fails to identify
the treatment R.W. would need solely because of Mr. Anthony’s offenses. See
Bostock, 140 S. Ct. at 1739.
The Government tries to salvage its argument by pointing to Dr. Missar’s
detailed description of the trauma Mr. Anthony inflicted on R.W. Aplt. Br. at 31-32.
As we said in Anthony I, however, Mr. “Anthony’s conduct toward R.W. was
reprehensible, but the government still must prove how that conduct warrants
compensation for a lifetime of psychological treatment [and medication].” 942 F.3d
at 969 n.10. Dr. Missar needed to show that, had R.W. never encountered Mr.
Anthony, she would not have needed the requested therapy and medications.
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Because he failed to do so, we cannot find error in the district court’s denial of
restitution.10
The Government also argues the district court should have fashioned a
restitution award based on the evidence it presented during the initial restitution
proceedings. It points to physician assistant Bryant’s testimony and R.W.’s trial
testimony and victim impact statement. Aplt. Br. at 36-39. It argues this evidence,
when viewed in conjunction with Dr. Missar’s report, is sufficient to prove Mr.
Anthony’s offenses caused R.W.’s losses. Id. at 36. But this argument fails for three
reasons.
First, on remand at the district court, the Government did not present
arguments for restitution based on the evidence from the initial restitution
proceedings and cannot do so now. See Little v. Budd Co., Inc., 955 F.3d 816, 821
(10th Cir. 2020). Second, we held in Anthony I that this evidence did not satisfy the
Government’s burden. Anthony I, 942 F.3d at 967-68. Third, and most important,
the Government ignored our holding in Anthony I and made no effort to explain how
physician assistant Bryant’s report and R.W.’s testimony and victim impact
statement, along with Dr. Missar’s report, proved that Mr. Anthony’s offenses were
the but-for cause of her losses. The district court thus did not err in declining to
10
The Government cites United States v. Monzel, 641 F.3d 528 (D.C. Cir.
2011), and United States v. Dillard, 891 F.3d 151 (4th Cir. 2018), to argue it was an
abuse of discretion to set restitution at zero dollars. Aplt. Br. at 24. But in those
cases, it was undisputed that the Government met its burden—those cases are
therefore inapposite. See Monzel, 651 F.3d at 539-40; Dillard, 891 F.3d at 160.
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order restitution for treatment costs based on evidence from the initial restitution
proceedings.11
Finally, the Government argued for the first time at oral argument that Dr.
Missar’s report recommended treatment that is independent from the treatment R.W.
needed for the trauma she suffered from other abusers in her life. We do not consider
arguments raised for the first time at oral argument. See Fed. Ins. Co. v. Tri-State
Ins. Co., 157 F.3d 800, 805 (10th Cir. 1998) (“Issues raised for the first time at oral
argument are considered waived.”). At any rate, this argument is inconsistent with
Dr. Missar’s report, which fails to identify the treatment costs R.W. would not have
accrued but for Mr. Anthony’s conduct. It instead lumps together the lifetime of
treatment R.W. will have to undertake due to “the abuse she endured from her step-
grandfather, Mr. William Johnson, Mr. Maurice Johnson, Ms. Gum, Mr. Duong, Mr.
Baker, and Mr. Anthony.” App., Vol. 4 at 244. Dr. Missar did not identify, as
Anthony I requires, the separate therapy and medication needed to address the trauma
R.W. suffered from Mr. Anthony. Nor did Dr. Missar propose that Mr. Anthony
cover a subset of the treatment costs R.W. needs.
The district court did not err by denying restitution for R.W.’s treatment costs.
11
To support restitution for R.W., the Government attempts to draw upon
M.M.’s victim impact statement, the costs of tests and examinations M.M. undertook,
and the ill-gotten gains from the conspiracy. Aplt. Br. at 39-41. In his brief, Mr.
Anthony states that “[t]he government has not advanced, and has therefore waived,
any argument that the district court erred in limiting its analysis to the losses R.W.
incurred as a result of her encounter with Mr. Anthony.” Aplee. Br. at 13 n.2. We
agree. See Little, 955 F.3d at 821.
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b. Restitution for tutoring and lost wages
The Government also failed to meet its burden to award restitution for tutoring
and lost wages. Again, as in district court, it relies on Dr. Missar’s report; and again,
the report does not even attempt to establish but-for causation. Rather than
disaggregate the education and income losses attributable to Mr. Anthony’s offenses,
Dr. Missar opined that “the impact that sex trafficking had on [R.W.] has . . .
impaired her ability to work to her potential.” App., Vol. 4 at 245. Dr. Missar did
not even try to differentiate between the losses R.W. suffered at the hands of other
abusers and the losses caused by Mr. Anthony’s offenses. Instead, he combined all
of R.W.’s losses from the sex trafficking incidents. Dr. Missar even failed to
mention Mr. Anthony’s name or his offenses of conviction when discussing his
recommendation for restitution for R.W.’s tutoring and lost wages.
The Government points to Dr. Missar’s methodology,12 which led to a lower
figure than what the Government requested during the initial restitution proceedings.
Aplt. Br. at 34-35. But that again misses the mark. Indeed, Dr. Missar’s
methodology is the problem. It fails to differentiate between the losses attributable to
Mr. Anthony’s offenses and the losses attributable to the other individuals who
trafficked R.W. The district court thus did not err in denying the Government’s
request for restitution for tutoring and lost wages.
12
Dr. Missar calculated lost wages based on Social Security Administration
data to approximate the lower earnings R.W. would earn the rest of her life. Aplt. Br.
at 34.
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* * * *
The Government faults the district court for failing to award restitution,
asserting that Congress has made restitution mandatory. Although the TVPRA makes
restitution mandatory, 18 U.S.C. § 1593(a), “[r]estitution may be ordered only for
losses actually resulting from the offense of conviction.” Anthony I, 942 F.3d at 964.
The Government failed to prove that, but for Mr. Anthony’s offense, R.W. would not
have suffered the losses for which the Government seeks restitution.13 We therefore
affirm the district court.
B. Procedural Challenges
The Government contends the district court made three procedural errors that
warrant remand. We disagree.
First, it argues the district court abused its discretion in denying restitution
when Mr. Anthony did not present any contrary evidence. Aplt. Br. at 47. But the
Government bore the burden of proving that but for Mr. Anthony’s offenses, R.W.
would not have suffered the losses for which the Government sought restitution.
Galloway, 509 F.3d at 1253. The Government failed to meet its burden, so Mr.
Anthony did not need to present evidence.
13
As Amicus, the Human Trafficking Institute argues, and Mr. Anthony
concedes, the Government could have met its burden by presenting an expert who
“apportion[s] some amount of loss to a one-time abuser under a but-for causation
standard.” Aplee. Br. at 28. But Dr. Missar’s report did not do that. Instead, the
report sought to hold Mr. Anthony accountable for all treatment, tutoring, and lost
wages arising from the conduct of all her abusers.
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Appellate Case: 21-6015 Document: 010110630862 Date Filed: 01/12/2022 Page: 19
Second, the Government argues the district court excluded Dr. Missar’s report
under the Daubert standard. Aplt. Br. 46-47. But it did no such thing. It addressed
the substance of Dr. Missar’s report and determined it did not show but-for causation.
In reaching this conclusion, the court did not exclude the report.
Third, it argues the district court erred when it failed to hold an evidentiary
hearing. Aplt. Br. at 47. But the court was not required to hold a hearing. See
18 U.S.C. § 3664(d)(4) (“[T]he court may require additional documentation or hear
testimony.” (emphasis added)). We fail to see how the court abused its discretion
when the Government did not request a hearing. We therefore fail to see error in its
decision not holding a hearing.
III. CONCLUSION
No one disputes that Mr. Anthony caused trauma to R.W. His “conduct was
reprehensible.” Anthony I, 942 F.3d at 969 n.10. The Government bore the burden
of showing a need for treatment, tutoring, and lost wages that was directly
attributable to Mr. Anthony. Doing so meant following Anthony I, which should not
have been onerous. “Sometimes [the but-for causation] showing could be made with
little difficulty.” Paroline, 572 U.S. at 450. And in the restitution context, the
Government need not provide an amount with exact precision. Anthony I, 942 F.3d
at 970. It must recommend restitution rooted in a calculation of actual loss. The
Government failed to do so. Because the district court did not err, we affirm.
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