Crime Victims’ Rights Report 2013

Summary – uscourts.gov

This is the ninth annual report to Congress on crime victims' rights under § 104(a) of the 

Justice for All Act of 2004, Pub. L. No. 108-405. Section 104(a) requires the Administrative 

Office of the United States Courts (AO) to report "the number of times that a right established in 

Chapter 237 of title 18, United States Code, is asserted in a criminal case and the relief requested 

is denied and, with respect to each such denial, the reason for such denial, as well as the number 

of times a mandamus action is brought pursuant to Chapter 237 of title 18, and the result 

reached." Title I of the Justice for All Act is commonly referred to as the Crime Victims' Rights 

Act (CVRA) and is codified at 18 U.S.C. § 3771.

In the federal trial courts, there were more than 68,900 criminal cases filed involving 

more than 91,200 defendants during fiscal year 2013. In the past year, the AO has received 

reports from the appellate courts on nine mandamus actions brought per the provisions of the Act 

and has similarly identified three district court cases that meet the statute's reporting criteria. 

Summaries of those mandamus and trial court actions follow, including the reasons provided for 

the decisions in each of the cases. Related cases are combined into one summary.

In re: Rick Thaler. Director. Texas Department of Criminal Justice. Correctional 

Institutions Division: Teresa Wooten. sister of crime victim, Vicki Ann Garner, No. 13-40171 

(5th Cir. Feb. 15, 2013). In a death penalty case, defendant Ladd filed a successive petition for a 

writ of habeas corpus in the Eastern District of Texas on June 20, 2003 (Ladd v. TVC, 1:03-cv00239-RAS). Nine years later, petitioners sought a writ of mandamus in the United States Court 

of Appeals for the Fifth Circuit, pursuant to 18 U.S.C. § 377l(d)(3), asserting the right to 

proceedings free from unreasonable delay and directing the district court to rule on the 

defendant's successive petition for a writ of habeas corpus. While the petition was pending in the 

Fifth Circuit, the district court denied defendant's application for a writ of habeas corpus with 

prejudice. Shortly thereafter, the appellate court dismissed the petition for a writ of mandamus as 

moot.

In re: Amy Unknown, No. 09-41238 consolidated with 09-41254 and 09-31215 (5th Cir. 

Nov. 19, 2012). Petitioner Amy sought restitution in the underlying case of United States v. 

Paroline, 672 F.Supp. 2d 781 (E.D. Tex. 2009). Applying a but-for causation standard, the 

district court determined that the government had not met its burden of showing which losses 

were proximately caused by defendant's offense and declined to award restitution. Petitioner 

Amy sought a petition for a writ of mandamus in the United States Court of Appeals for the Fifth 

Circuit, pursuant to 18 U.S.C. § 3771(d)(3), directing the district court to order defendant 

Paroline to pay restitution for the entire amount of her losses. The petition for a writ of 

mandamus was granted by a panel in In re: Amy Unknown, 636 F.3d. 190 (5th Cir. 2011). 
At issue was whether 18 U.S.C. § 2259 requires a victim to establish a causal connection 

between the defendant's conduct and the victim's loss for all categories under 18 U.S.C. § 

2259(b)(3) or only 18 U.S.C. § 2259(b)(3)(F) to award restitution. The panel found that only 18 

U.S.C. § 2259(b)(3)(F) required a showing of proximate cause in order to recover restitution. 

This holding was applied to another appeal by a subsequent panel, but it was questioned in a 

special concurrence that emulated the reasoning of other circuits. See United States v. Wright, 

639 F.3d 679 (5th Cir. 2011). To resolve the issue of how to award restitution under 18 U.S.C. § 

2259, the Fifth Circuit granted rehearing en bane and vacated the panel opinions. 

Petitioner Amy asserted that the "plain language" of§ 2259 limits the proximate result 

language to the category of losses in 18 U.S.C. § 2259(b)(3)(F). The government argued that a 

victim must show that all of the recoverable losses under 18 U.S.C. § 2259(b)(3)(A)-(F) 

proximately resulted from the defendant's offense. The government also emphasized that seven 

circuits had rejected petitioner's interpretation of the statute. Examining the structure of the 

statute, the appellate court observed that the rule of last antecedent implies that a limiting phrase 

applies to the "noun or phrase that it immediately follows." Accordingly, the appellate court 

determined that the phrase "suffered by the victim as a proximate result of the offense" only 

applied to the miscellaneous "other losses" category in 18 U.S.C. § 2259(b)(3)(F) and none of 

the categories of losses preceding that subsection. As a result, each defendant that possessed 

victim's images was liable for the full amount of victim's losses even though other defendants 

also contributed to her harm. Because the district court denied restitution to petitioner Amy in 

United States v. Paroline, 672 F.Supp. 2d 781 (E.D. Tex. 2009), the appellate court vacated the 

judgment and remanded the case to the district court to enter a restitution order for the "full 

amount of Amy's losses." 

Defendant Paroline petitioned the Supreme Court of the United States for a writ of 

certiorari. The petition was granted in part to determine "what, if any, causal relationship or 

nexus between the defendant's conduct and the victim's harm or damages must the government 

or the victim establish in order to recover restitution under 18 U.S.C. § 2259." On April 23, 

2014, the Supreme Court of the United States held that "the proximate-cause requirement applies 

to all the losses described in§ 2259." See Paroline v. United States, 572 U.S._ 2014 WL 

1612426, at 1-33 (S.Ct. Apr. 23, 2014). Determining that defendant's possession of two images 

of the victim did not cause all of her losses from the continued dissemination of her images, the 

Court concluded that defendant Paroline should only be liable for his conduct which proximately 

harmed the victim, not the conduct of others. The Court also ruled that the but-for causation 

standard utilized by the district court did not apply in this case because a large number of loosely 

connected individuals possessed and continued to traffic in the victim's images. Signaling the 

intent of Congress to provide restitution for victims of child pornography in § 2259, the Supreme 

Court emphasized that when a traditional causal inquiry does not suffice, a court should award 

restitution "in an amount that comports with the defendant's relative role in the causal process 

underlying the victim's general losses." This approach compensates the victim for her losses and 

holds the defendant accountable for the consequences of his conduct. Finding that the Fifth 

Circuit incorrectly interpreted the requirements of§ 2259 and the District Court erred by applying 
a but-for causation standard, the Supreme Court vacated the judgment of the Court of · Appeals 

and remanded the case for further proceedings.

In re: Amy Unknown: Vicky Unknown, No. 13-20485 (5th Cir. Aug. 30, 2013). 

Petitioners Amy and Vicky sought restitution in the underlying case of United States v. 

Gammon, No. 4:10-cr-00340-1 (S.D. Tex. Dec. 2011). The district court awarded each victim 

$125,000 in restitution pursuant to 18 U.S.C. § 2259(b). Defendant appealed the restitution order 

to the United States Court of Appeals for the Fifth Circuit, which affirmed the original district 

court order. Even with the affirmance, the lower court held a restitution hearing at which it stated 

for the first time that the restitution was "joint and several." As a result, the defendant did not 

have to pay restitution because each victim had already collected more than $125,000 from other 

defendants. 

Petitioners sought a writ of mandamus in the United States Court of Appeals for the Fifth 

Circuit, pursuant to 18 U.S.C. § 3771(d)(3), contending that the amended district court order 

imposing joint and several liability should be reversed. To satisfy the traditional standard for 

mandamus relief, the court noted that petitioners would have to show that they have no other 

means to obtain the requested relief, they have a clear and indisputable right to the writ, and a 

writ is appropriate. First, the court noted that because petitioners could not directly appeal the 

district court order, they had no other means of relief. Second, the court observed that the district 

court did not indicate that the initial restitution award was joint and several. The court further 

noted that imposing a joint and several restitution award would be equivalent to issuing no 

restitution award in this case. The appellate court found that petitioners were entitled to the 

restitution amounts originally ordered by the district court and that the awards were not joint and 

several. Third, because the CVRA specifically authorizes mandamus relief, the court concluded 

that the writ was appropriate. Thus, the writ was granted and the initial restitution award was 

reinstated.

In re: George May, No. 13-30773 (5th Cir. July 24, 2013). Petitioner May sought $27.5 

billion in damages as a citizen intervenor on behalf of the state of Florida in the underlying case 

of United States v. Transocean Deepwater Inc., et. al., 2:13-cr-00001-JTM-SS (E.D. La. May 30, 

2013), alleging that the "terrorist defendants" were involved in a continuing conspiracy of 

economic terrorism, crimes against humanity, and other terrorist acts. The district court did not 

act on petitioner's request for a default judgment, so petitioner sought a writ of mandamus from 

the United States Court of Appeals for the Fifth Circuit pursuant to the CVRA. Without 

comment, the appellate court denied his petition for a writ of mandamus.

United States v. John Emerson Tuma, No. l l-cr-0031-01 (W.D. La. Dec. 5, 2012). A jury 

found defendant Tuma guilty of five counts related to illegally discharging untreated wastewater. 

His employer, CCS Midstream Services LLC, sought restitution pursuant to the CVRA and the 
Victim Witness Protection Act (VWPA). To receive restitution, the employer would have to 

show that it was "directly and proximately harmed as a result of the commission of a Federal 

Offense." The court observed that the information submitted during defendant's trial did not 

establish the employer was proximately harmed by the defendant's actions. Concluding that there 

were complicated issues of causation and damages that would prolong the sentencing process, 

the court denied the request for restitution.

In re: Vicky. Child Pornography Victim, No. 12-2769 (8th Cir. Mar. 11, 2013). Petitioner 

Vicky sought restitution in the amount of $952,759.81 pursuant to 18 U.S.C. § 2259 in United 

States v. Robert M Fast, 4:11-cr-03018-RGK-CRZ (D. Neb. July 13, 2012).1 The district court 

originally granted restitution of $19,863.89, but later reduced the restitution award to $3,333. 

Petitioner sought a writ of mandamus in the United States Court of Appeals for the Eighth 

Circuit, pursuant to 18 U.S.C. § 377l(d)(3), asserting that her right to "full and timely restitution" 

had been violated and directing the district court to award restitution in the amount of 

$952,759.81. Petitioner also filed a direct appeal. Emphasizing that petitioner lacked standing to 

appeal the district court's restitution order, the appellate court dismissed her direct appeal. Using 

the traditional mandamus standard of review, the Eighth Circuit ruled that proximate cause was 

required for all categories of loss under 18 U.S.C. § 2259. Accordingly, the appellate court held 

that the district court did not err in awarding restitution in the amount of $3,333 and denied the 

petition for a writ of mandamus.

In re: Amy & Vicky. Child Pornography Victims, No. 12-73414 (9th Cir. Oct. 24, 2012). 

In a previous appeal by defendant in the underlying case of United States v. Kennedy, 643 F.3d 

1251 (9th Cir. 2011), a three-judge panel vacated the restitution order and remanded the case 

back to the district court to determine if there was a causal connection between the defendant's 

offense and the victims' losses as set out in United States v. Laney, 189 F.3d 954, 965 (9th Cir. 

1999). On remand, the district court declined to award petitioner Amy restitution, and awarded 

petitioner Vicky $4,545.08 in restitution. 

Both petitioners sought a writ of mandamus in the United States Court of Appeals for the 

Ninth Circuit, pursuant to 18 U.S.C. § 3771, contending that the appellate court erroneously 

decided Kennedy and that the district court orders should be reversed. Pointing to a Fifth Circuit 

ruling in In re: Unknown, 697 F.3d 306 (5th Cir. 2012), the petitioners urged the court to 

overrule Kennedy. To issue the writ, the appellate court noted that it must find a legal error or 

abuse of discretion. While acknowledging that the Fifth Circuit interpretation differed from the 

Ninth Circuit, the appellate court emphasized that Laney and Kennedy remained binding on the 

1 See Letter from Honorable Thomas F. Hogan, Director, Administrative Office of the U.S. 

Courts, to Honorable John A. Boehner, Speaker, United States House of Representatives (Mar. 

14, 2013).
Ninth Circuit absent intervention from the Supreme Court or the Ninth Circuit sitting en bane. 

Thus, the petition for a writ of mandamus was denied.

United States v. Deborah A. DiFrancesco, No. 2:13-cr-00089-JCM-GWF-1 (D. Nev. May 

29, 2013 and Sept. 4, 2013) and In re: Stake Center Locating Inc., No. 13-72062 (9th Cir. June 

19, 2013) and No. 13-73267 (9th Cir. Sept. 26, 2013). Defendant, who embezzled funds from her 

former employer, pled guilty to one count of tax evasion and three counts of wire fraud. As part 

of the plea agreement, defendant agreed to pay $763,846 in restitution to her former employer, 

Stake Center Locating Inc. Prior to sentencing, Stake Center Locating Inc. filed a motion for 

relief pursuant to the CVRA and the Mandatory Victim Restitution Act (MYRA) seeking to set 

aside the plea agreement and compel the government to begin criminal forfeiture proceedings. 

After the district court denied the motion, Stake Center Locating Inc. sought a writ of 

mandamus in the United States Court of Appeals for the Ninth Circuit directing the district court 

to order criminal forfeiture proceedings. Because sentencing had not taken place, the appellate 

court held that petitioner's claim was not ripe yet. Petitioner filed another motion for victims' 

rights in district court that was denied. Petitioner then filed a second petition for a writ of 

mandamus in the United States Court of Appeals for the Ninth Circuit seeking criminal 

forfeiture. The court noted that the CVRA gives victims the right to "full and timely restitution," 

but not to criminal forfeiture. Emphasizing that criminal forfeiture is not a type of restitution, the 

appellate court ruled that the district court did not err or abuse its discretion when it denied 

petitioner's motion for forfeiture. Thus, the petition was denied.

In re: The Morning Star Packing Company, LP & Liberty Packing Company, LLC, No. 

13-71048 (9th Cir. Mar. 29, 2013). Petitioners' request for restitution under the Mandatory 

Victim Restitution Act (MYRA) was denied in the underlying case of United States v. Frederick 

Scott Salyer, 2:10-cr-00061-LKK-1 (E.D. Cal. Mar. 29, 2013). The district court determined that 

assessing restitution would be unduly complex and time consuming. The district court further 

noted that defendant did not have the financial means to make restitution and that civil remedies 

were available to petitioners. 

Petitioners sought a writ of mandamus in the United States Court of Appeals for the 

Ninth Circuit, pursuant to 18 U.S.C. § 3771, asserting the right to restitution. The appellate court 

noted that the MYRA does not require a restitution award if the determination would be unduly 

complex and time consuming. The MVRA does, however, specifically state that the defendant's 

ability to pay should not be considered when ordering restitution. See 18 U.S.C. § 3664(f)(l )(A). 

Precedent in the Ninth Circuit also clearly established that the availability of a civil suit should 

not be considered when calculating restitution. See also United States v. Cienfuegos, 462 F.3d 

1160, 1168 (9th Cir. 2006). The appellate court concluded that the district court erred by taking 

into consideration defendant's financial situation and other civil remedies, and further noted that 

it was unclear if the district court "conducted the balancing test required by 18 U.S.C. § 

3663A(c)(3)" to determine if the burden on the sentencing process would outweigh the need to 
provide restitution. As a result, the petition for a writ of mandamus was granted. Proceedings to 

determine restitution amounts in the district court are still pending.

In re: Amy and Vicky, No. 13-70858 (9th Cir. Mar. 18, 2013) and No.13-71486 (9th Cir. 

May 3, 2013). Petitioners Amy and Vicky requested restitution pursuant to 18 U.S.C. § 2259 in 

the underlying case of United States v. Joseph Cantrelle, 2:11-cr-00542-GEB (E.D. C l. Feb. 22, 

2013 and Apr. 15, 2013). Restitution was not recommended in the presentence report because the 

writer felt that he did not have enough information to determine if the government had met its 

burden of establishing a causal connection as required by United States v. Kennedy, 643 F.3d. 

1251 (9th Cir. 2011). Adopting the presentence report's recommendations, the district court 

denied restitution. 

Petitioners sought a writ of mandamus in the United States Court of Appeals for the 

Ninth Circuit, pursuant to 18 U.S.C. § 3771, asserting that the district court erred by applying 

Kennedy, and by refusing to award restitution. In Kennedy, the Ninth Circuit imposed a general 

proximate cause requirement when applying 18 U.S.C. § 2259(b)(3). Petitioners argued that 

Kennedy should be overruled based on a recent Fifth Circuit decision that did not impose a 

general proximate cause requirement for 18 U.S.C. § 2259(b)(3). See In re: Amy Unknown, 701 

F.3d 749, 762 (5th Cir. 2012) supra. Finding that Kennedy remained binding precedent in the 

Ninth Circuit absent an "intervening higher authority," the court held that the district court did 

not err in applying a proximate cause requirement to 18 U.S.C. § 2259(b)(3). However, the 

appellate court found that the district court abused its discretion when it declined to award any 

restitution to the petitioners. Determining that the record established a sufficient causal 

connection between the defendant's offense and the petitioners' losses, the court found that the 

petitioners were entitled to restitution. Thus, the petition for a writ of mandamus was denied in 

part, granted in part and remanded to the district court for further proceedings to determine the 

amount of restitution that should be paid to the victims. 

On remand, the district court utilized a method recommended by the Sixth Circuit to 

calculate the restitution amounts. See United States v. Gamble, 709 F.3d 541, 553-54 (6th Cir. 

2013). The district court awarded Amy $17,307.44 and Vicky $2,881.05 in restitution. 

Petitioners once again sought a writ of mandamus in the United States Court of Appeals for the 

Ninth Circuit, pursuant to the CVRA, challenging the methodology used by the district court and 

its refusal to impose joint and several liability. The court noted that the general criminal 

restitution statutes (18 U.S.C. §§ 2259 and 3664(h)) do not expressly authorize joint and several 

liability. In fact, several circuits have declined to impose joint and several liability under 18 

U.S.C. § 2259(b)(l). Determining that the methodology used to determine restitution awards 

under 18 U.S.C. § 2259 "is an open question in the Circuit," the appellate court held that the 

district court did not err or abuse its discretion when it refused to impose joint and several 

liability. Accordingly, the petition for a writ of mandamus was denied.
United States v. Michael Heath Thetford. 2:11-cr-495-KOB-HGD (N.D. Ala. Mar. 29, 

2013). Defendant Thetford fraudulently sold a boat owned by Jack and Shirley Winslett. 

Pursuant to the plea agreement, he pled guilty to felon in possession of a firearm and wire fraud. 

The Winsletts sent a letter to chambers complaining that the boat stolen by defendant was not 

returned to them and that the government failed to prosecute the third-party purchaser of the 

boat. The court determined that the letter should be treated as a motion to reopen a plea under 18 

U.S.C. § 377l(d). Finding that the Winsletts were proximately harmed as a result of the 

defendant's actions, the court ruled that the Winsletts were crime victims. However, because the 

defendant pled guilty to the highest offense charged, the victims were not entitled to reopen the 

plea. Although the motion was denied, the court emphasized that the victims have rights under 

the CVRA including the "right to full and timely restitution as provided by law" as well as a civil 

remedy to recover their boat.