United States Court of Appeals

For the Eighth Circuit

___________________________

No. 12-2752

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Robert M. Fast

lllllllllllllllllllll Defendant - Appellee

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Vicky, Child Pornography Victim

lllllllllllllllllllllInterested party - Appellant

___________________________

No. 12-2769

___________________________

In re: Vicky, Child Pornography Victim

lllllllllllllllllllllPetitioner

___________________________

 Appeals from United States District Court 

for the District of Nebraska - Lincoln

____________
 Submitted: November 15, 2012

 Filed: March 11, 2013

____________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.

____________

BENTON, Circuit Judge.

Robert M. Fast pled guilty to one count of receiving and distributing child

pornography in violation of 18 U.S.C. § 2252A(a)(2). The district court ordered him

1

to pay $3,333 restitution to Vicky – the pseudonym for the child-pornography victim

whose images were on Fast’s computer – under 18 U.S.C. § 2259. Vicky challenges

the restitution award by direct appeal and in a petition for mandamus. She argues

2

that Fast need not proximately cause the losses defined in subsections 2259(b)(3)(A)

through (E) to be liable for them, and that the district court misinterpreted the “full

amount of [her] losses” under section 2259(b)(1). Because she lacks standing as a

nonparty to bring a direct appeal, this court grants the motions to dismiss by Fast and

the government. Having jurisdiction over her mandamus petition under the Crime

Victims’ Rights Act (CVRA), 18 U.S.C. § 3771(d)(3), this court denies her petition.

I.

The CVRA grants crime victims, including Vicky, the “right to full and timely

restitution as provided in law.” 18 U.S.C. § 3771(a)(6). The district court must order

The Honorable Richard G. Kopf, United States District Judge for the District 1

of Nebraska.

This court granted Vicky’s request to waive the 72-hour statutory deadline for

2

deciding her mandamus petition. See 18 U.S.C. § 3771(d)(3).

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restitution. Id. § 2259(a), (b)(4)(A). “The language of 18 U.S.C. § 2259 reflects a

broad restitutionary purpose.” In re Amy Unknown, 701 F.3d 749, 760 (5th Cir.

2012) (en banc) (citations omitted); accord United States v. Julian, 242 F.3d 1245,

1247 (10th Cir. 2001). “Restitution” is the “full amount of the victim’s losses as

determined by the court,” including the costs enumerated in subsections

2259(b)(3)(A) through (F). 18 U.S.C. § 2259(b)(1), (3). The district court resolves

“[a]ny dispute as to the proper amount or type of restitution . . . by the preponderance

of the evidence.” Id. § 3664(e). The government bearsthe “burden of demonstrating

the amount of the loss sustained by a victim as a result of the offense.” Id.

Vicky documents $1,224,697.04 in losses from her sexual abuse and the

distribution of the pornographic images. Before Fast’s sentencing, she sought

$952,759.81 restitution (having previously collected $271,937.23 from other

defendants). The government initially requested “at least $10,000” restitution. The

district court ruled that Fast need not have proximately caused the losses defined in

subsections 2259(b)(3)(A) through (E) to be liable for them. United States v. Fast,

820 F. Supp. 2d 1008, 1010 (D. Neb. 2011). The court initially ordered Fast to pay

$19,863.84 restitution. Id. On appeal, the government agreed with Fast that

proximate cause is required. This court remanded to the district court to reconsider

Vicky’s restitution award (denying her motion to intervene as moot). United States

v. Fast, No. 11-3455, at *1 (8th Cir. May 15, 2012).

On remand, the district court determined “that proximate cause is required for

each element of restitution under 18 U.S.C. § 2259.” United States v. Fast, 876 F. 3

Supp. 2d 1087, 1088 (D. Neb. 2012). It found Fast liable for losses accrued after

June 25, 2010 — when he began committing the crime. Id. at 1089. The district

court concluded that Fast “proximately caused harm to ‘Vicky’ that directly resulted

On remand, the district court denied as untimely Vicky’s motion to intervene. 3

She does not appeal that ruling.

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in compensable injury and damage to her in the sum of $3,333.” Id. at 1090. This

amount consisted of “$2,500 for medical and psychiatric care, occupational therapy,

and lost income under 18 U.S.C. § 2259(b)(3)(A), (B), & (D),” and $833 for “attorney

fees and costs under 18 U.S.C. § 2259(b)(3)(E).” Id. at 1088.

II.

Fast and the government move to dismiss Vicky’s direct appeal of the

restitution order, arguing thatshe lacks standing because she is not a party to the case. 

“Standing is a fundamental element of federal court jurisdiction.” Curtis v. City of

Des Moines, 995 F.2d 125, 128 (8th Cir. 1993), citing Sierra Club v. Morton, 405

U.S. 727, 732 (1972). Those failing to “intervene or otherwise attain party status may

not appeal a district court’s judgment.” Id. (citation omitted). “[A]ll Courts of

Appeals to have addressed this issue have concluded that nonparties cannot directly

appeal a restitution order entered against a criminal defendant.” United States v.

Stoerr, 695 F.3d 271, 277 (3d Cir. 2012) (citations omitted); see In re Amy

Unknown, 701 F.3d at 756; United States v. Alcatel-Lucent France, SA, 688 F.3d

1301, 1307 (11th Cir. 2012) (per curiam); United States v. Monzel, 641 F.3d 528, 542

(D.C. Cir.), cert. denied, 132 S. Ct. 756 (2011); United States v. Aguirre-Gonzalez,

597 F.3d 46, 53-55 (1st Cir. 2010); In re Acker, 596 F.3d 370, 373 (6th Cir. 2010)

(per curiam); United States v. Hunter, 548 F.3d 1308, 1315-16 (10th Cir. 2008);

United States v. United Sec. Sav. Bank, 394 F.3d 564, 567 (8th Cir. 2004) (per

curiam); United States v. Mindel, 80 F.3d 394, 398 (9th Cir. 1996); United States v.

Grundhoefer, 916 F.2d 788, 793 (2d Cir. 1990); see also United States v. Laraneta,

700 F.3d 983, 986 (7th Cir. 2012) (finding “no quarrel” with the result that “a crime

victim cannot appeal from a denial of restitution in a criminal case because the victim

is not a party”).

Vicky did not successfully intervene, and the CVRA does not grant her party

status. The CVRA grantsthe government the right to assert a victim’s rights on direct

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appeal, 18 U.S.C. § 3771(d)(4), and details when a victim may re-open a plea or

sentence through a motion, id. § 3771(d)(5); see Hunter, 548 F.3d at 1315-16 

(“[Section 3771(d)(5)] makes no mention of a direct appeal.”). The CVRA grants a

victim the right to petition for mandamus. 18 U.S.C. § 3771(d)(3). “Nothing in this

chapter shall be construed to impair the prosecutorial discretion of the Attorney

General or any officer under his direction.” Id. § 3771(d)(6). Allowing victims to

appeal would “erode the CVRA’s attempt to preserve the Government’s discretion.”

In re Unknown, 701 F.3d at 757; accord Hunter, 548 F.3d at 1316. “That Congress

included these provisions but did not provide for direct appeals by crime victims is

strong evidence that it did not intend to authorize such appeals.” Monzel, 641 F.3d

at 542 (emphasis in original) (“[T]he 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.’” (emphasis

in original), quoting Mertens v. Hewitt Assocs., 508 U.S. 248, 254 (1993) (internal

quotation marks omitted)). The CVRA does not allow Vicky to appeal directly.

Vicky invokes 28 U.S.C. § 1291. But “§ 1291’s broad jurisdictional grant does

not permit us to ignore the requirement that the appellant have standing to appeal.” 

Stoerr, 695 F.3d at 277 n.5 (citation omitted). Vicky cites several cases where courts

have heard non-party appeals. None, except United States v. Kones, 77 F.3d 66, 68

(3d Cir. 1996), allowed a non-party appeal that would alter a defendant’s sentence. 

See Monzel, 641 F.3d at 542-43. A criminal restitution order is part of a defendant’s

sentence. Id. at 541; see United Sec. Sav. Bank, 394 F.3d at 567. “A crime victim

does not have standing to appeal a district court’s restitution order.” United Sec. Sav.

Bank at 567; Aguirre-Gonzalez, 597 F.3d at 54 (“[C]rime victims have no right to

directly appeal a defendant’s criminal sentence . . . .”).

In Kones, “a purported victim sought to appeal the district court’s conclusion

that she was not entitled to restitution.” Stoerr, 695 F.3d at 277 n.5, citing Kones, 77

F.3d at 68. “Without addressing the purported victim’s standing to appeal, [the Third

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Circuit] noted in one sentence that [it] had appellate jurisdiction under 28 U.S.C. §

1291.” Id., citing Kones, 77 F.3d at 68. The Third Circuit later held that it was not

“bound by the bald jurisdictional statement in Kones” — a “‘drive-by jurisdictional

ruling[ ],’ in which jurisdiction ‘ha[s] been assumed by the parties, and . . . assumed

without discussion by the [c]ourt,’ does not create binding precedent.” Id.

(alterationsin original), quoting Steel Co. v. Citizensfor a Better Env’t, 523 U.S. 83,

91 (1998); see Monzel, 641 F.3d at 541 n.13.

In the Curtis case, this court allowed nonparties to appeal because they had “an

interest in the cause litigated and participated in the proceedings actively enough to

make [them] privy to the record . . . [even though] [they] w[ere] not named in the

complaint and did not intervene.” Curtis, 995 F.2d at 128 (second alteration in

original) (omission in original) (citation and internal quotation marks omitted). 

Curtis, unlike here, was a civil case and did not alter the defendant’s sentence.

Vicky argues that because the CVRA grants victims the “right” to restitution,

see 18 U.S.C. § 3771(a)(6), she has an “injury” that gives her standing to appeal. But

see United Sec. Sav. Bank, 394 F.3d at 567 (“The direct, distinct, and palpable injury

in a criminal sentencing proceeding plainly falls only on the defendant who is being

sentenced.”). But granting victims a right to restitution neither makes them a party

to the case, nor gives them a right to appeal. See, e.g., Aguirre-Gonzalez, 597 F.3d

at 53 (“Notwithstanding the rights reflected in the restitution statutes, crime victims

are not parties to a criminal sentencing proceeding . . . [and] may not appeal a

defendant’s criminal sentence.” (internal citations and citations omitted)). “[T]he

CVRA expressly identifies the avenues of appellate review of a district court’s denial

of restitution . . . and neither of those avenues entitles a crime victim to direct

appeal.” Alcatel-Lucent France, SA, 688 F.3d at 1306; see also Transamerica

Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11, 19 (1979) (“[W]here a statute

expressly provides a particular remedy or remedies, a court must be chary of reading

others into it.”); see also Aguirre-Gonzalez, 597 F.3d at 54 (“The Federal Rules of

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Civil Procedure allow non-parties to intervene to assert their rights. The Federal

Rules of Criminal Procedure contain no comparable provision.” (citation omitted)).

Vicky cites additional cases where a non-party crime victim was allowed to

appeal. See United States v. Yielding, 657 F.3d 722, 726 n.2 (8th Cir. 2011)

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(holding the nonparty had “standing to appeal” because “it [was] bound or adversely

affected by an injunction”); In re Siler, 571 F.3d 604, 608-09 (6th Cir. 2009)

(allowing nonparties to appeal the use of a presentencing report in a civil suit);

United States v. Perry, 360 F.3d 519, 523-24 (6th Cir. 2004) (allowing a non-party

victim to appeal an order vacating a lien securing her restitution award); Doe v.

United States, 666 F.2d 43, 45-46 (4th Cir. 1981) (allowing a non-party victim to

appeal the use of sexual history evidence). “But none of the cases she cites involved

a request by a victim to alter a defendant’s sentence.” See Monzel, 641 F.3d at 543;

accord Aguirre-Gonzalez, 597 F.3d at 54; Hunter, 548 F.3d at 1314.

Vicky cites several cases that allowed other nonparties to appeal in criminal

cases. See United States v. Antar, 38 F.3d 1348,1355-56 (3d Cir. 1994) (permitting

the press to appeal a district court order sealing a voir dire transcript); In re

Subpoena to Testify Before Grand Jury Directed to Custodian of Records, 864 F.2d

1559, 1561 (11th Cir. 1989) (allowing the press to appeal the scope of a closure

order); Anthony v. United States, 667 F.2d 870, 878 (10th Cir. 1982) (allowing

Vicky also cites a letter from Senator Jon Kyl to the U.S. Justice Department, 4

stating that the CVRA was “not intended to block crime victims from taking an

ordinary appeal from an adverse decision affecting their rights (such as a decision

denying restitution) under 28 U.S.C. § 1291.” Letter from Senator Jon Kyl to

Attorney Gen. Eric Holder (June 6, 2011), reprinted in 157 Cong. Rec. S3609

(June 8, 2011). Statements made after a statute’s enactment are “not a legitimate tool

ofstatutory interpretation.” Bruesewitz v. Wyeth LLC, 131 S. Ct. 1068, 1081 (2011);

see Stoerr, 695 F.3d at 280 n.7 (“[A] statement by an individual senator does not

‘amend the clear and unambiguous language of a statute.’” (quoting Barnhart v.

Sigmon Coal Co., 534 U.S. 438, 457 (2002))).

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appeal of discovery rulings); United States v. Hubbard, 650 F.2d 293, 314 (D.C. Cir.

1980) (allowing appeal of an order unsealing documents found during a search);

United States v. Briggs, 514 F.2d 794, 799 (5th Cir. 1974) (exercising jurisdiction

over an appeal by unindicted co-conspirators challenging an order refusing to strike

their names from the indictment). These “appeals all related to specific trial issues

and did not disturb a final judgment.” Hunter, 548 F.3d at 1314; see In re Amy

Unknown, 701 F.3d at 756 (“[These cases] allowed non-parties to appeal discrete

pre-trial issues . . . unrelated to the merits of the criminal cases from which they

arose.” (citations omited)).

Vicky claims that jurisdiction is nonetheless proper under the collateral order

doctrine. See Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599, 605 (2009). 

“[U]nder the collateral order doctrine, prejudgment appellate review is allowed in a

criminal case for trial court orders which [(1)] conclusively determine the disputed

question, [(2)] resolve an important issue completely separate from the merits of the

action, and [(3)] are effectively unreviewable on appealfromfinal judgment.” United

States v. Ivory, 29 F.3d 1307, 1311 (8th Cir. 1994). She fails the second prong

“because the issue of restitution is part and parcel of the criminal sentence.” AlcatelLucent France, AS, 688 F.3d at 1305 n.1. She also fails the third prong because the

CVRA permits the government to appeal (and, as discussed below, allows her to

petition for mandamus). See 18 U.S.C. § 3771(d)(3)-(4). Because Vicky lacks

standing, the motions to dismiss her direct appeal are granted. She may proceed only

by mandamus. Id. § 3771(d)(3).

III.

According to Fast and the government, the traditional standard for mandamus

applies, requiring Vicky to show that (1) she lacks “adequate alternative means” to

obtain relief, (2) her right to “issuance of the writ is clear and indisputable,” and (3)

“the writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Court for

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Dist. of Columbia, 542 U.S. 367, 380-81 (2004) (internal citations, citations, and

internal quotation marks omitted); Kreditverein der Bank Austria Creditanstalt für

Niederösterreich undBergenland v. Nejezchleba, 477 F.3d 942, 948 (8thCir. 2007),

citing Mallard v. U.S. Dist. Ct. for the Dist. of Iowa, 490 U.S. 296, 309 (1989). 

Vicky urges this court to apply the standard of review for a direct appeal.

The CVRA states:

If the district court denies the relief sought, the movant may petition the

court of appeals for a writ of mandamus. The court of appeals may issue

the writ on the order of a single judge . . . . The court of appeals shall

take up and decide such application forthwith within 72 hours after the

petition has been filed. . . . If the court of appeals denies the relief

sought, the reasons for the denial shall be clearly stated on the record in

a written opinion.

18 U.S.C. § 3771(d)(3). That a court must “take up and decide” the petition within

72 hours “says nothing about the standard of review.” Monzel, 641 F.3d at 533-34;

accord In re Amy Unknown, 701 F.3d at 758 n.6. Rather, “[t]he very short timeline

in which appellate courts must act, and the fact that a single circuit judge may rule on

a petition, confirm the conclusion thatCongress intended” the traditionalstandard for

mandamusto apply. In re Amy Unknown, 701 F.3d at 758;In re Antrobus, 519 F.3d

1123, 1130 (10th Cir. 2008) (“It seems unlikely that Congress would have intended

de novo review in 72 hours of novel and complex legal questions . . . .”).

“That Congress called for ‘mandamus’ strongly suggests it wanted

‘mandamus.’” Monzel, 641 F.3d at 533, citing Morissette v. United States, 342 U.S.

246, 263 (1952); In re Acker, 596 F.3d at 372. Had Congress intended an ordinary

appellate standard of review, it could have given victims a right to direct appeal. See

In re Antrobus, 519 F.3d at 1129, citing 18 U.S.C. § 3771(d)(4). “That Congress

expressly provided for ‘mandamus’ in § 3771(d)(3) but ordinary appellate review in

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§ 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.’” Monzel, 641 F.3d at 533, quoting Sosa v.

Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004).

Vicky argues that applying the traditional standard for mandamus renders

superfluous the right to petition for mandamus under the CVRA, because the All

Writs Act, 28 U.S.C. § 1651, already grants that right. But the CVRA, unlike the All

Writs Act, requires the court to “take up and decide” the petition within 72 hours and

to issue a “written opinion” if it denies relief. See 18 U.S.C. § 3771(d)(3). Thus, the

CVRA affords victims “more rights than they would otherwise have.” In re

Antrobus, 519 F.3d at 1129-30.

Vicky claims four circuits support her position. With little discussion, the

Second Circuit opined, “It is clear . . . that a petitioner seeking relief pursuant to the

[CVRA’s] mandamus provision . . . need not overcome the hurdles typically faced by

a petitioner . . . .” In re W.R. Huff Asset Mgmt. Co., LLC, 409 F.3d 555, 562 (2d

Cir. 2005). The Ninth Circuit stated, “The CVRA creates a unique regime that does,

in fact, contemplate routine interlocutory review of district court decisions denying

rights asserted under the statute.” Kenna v. U.S. Dist. Court for C.D. Cal., 435 F.3d

1011, 1017 (9th Cir. 2006). Without needing to reach the issue, the Third Circuit

commented that “mandamusrelief is available under a different, and less demanding,

standard under 18 U.S.C. § 3771 in the appropriate circumstances.” In re Walsh, 229

Fed. Appx. 58, 60 (3d Cir. 2007) (per curiam) (unpublished). The Eleventh Circuit

simply granted the writ without discussing any standard. See In re Stewart, 552 F.3d

1285, 1288-89 (11th Cir. 2008) (per curiam). But see In re Stewart, 641 F.3d 1271,

1274-75 (11th Cir. 2011) (per curiam) (questioning the prior ruling). These

decisions, lacking detailed analysis, are unpersuasive. See In re Amy Unknown, 701

F.3d at 758 n.6 (“The lack of reasoning . . . fails to convince us that anything other

than traditional mandamus standards [apply].”); In re Antrobus, 519 F.3d at 1128

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(“With respect to our sister circuits, and aware of the time pressures under which they

operated, we see nothing in their opinions explaining why Congress chose to use the

word mandamus rather than the word appeal.” (emphases in original)).

This court therefore applies the traditional standard for mandamus. “The

issuance of a writ of mandamusis an extraordinary remedy reserved for extraordinary

situations.” In re MidAmerican Energy Co., 286 F.3d 483, 486 (8th Cir. 2002) (per

curiam), citing Gulfstream AerospaceCorp. v. MayacamasCorp., 485 U.S. 271, 289

(1988). “‘[O]nly exceptional circumstances amounting to a judicial usurpation of

power will justify the invocation of this extraordinary remedy.’” In re Amy

Unknown, 701 F.3d at 757 (alteration in original), quoting Kerr v. U.S. Dist. Court

for N. Dist. of Cal., 426 U.S. 394, 402 (1976). “Issuance of the writ is largely a

matter of discretion . . . .” Id. at 757, citing Schlagenhauf v. Holder, 379 U.S. 104,

112 n.8 (1964).

Vicky meets the first traditional condition for mandamus – no adequate

alternative means to obtain relief – because mandamus is her only avenue for relief. 

See Cheney, 542 U.S. at 380-81 (“[The first] condition [is] designed to ensure that the

writ will not be used as a substitute for the regular appeals process.” (citation

omitted)). She must show that the district court clearly and indisputably erred in the

restitution amount it awarded her, and, if so, that the writ is appropriate.

IV.

Vicky argues that, to be liable, Fast need not have proximately caused the

losses defined in subsections 2259(b)(3)(A) through (E). This court reviews de novo

the district court’s interpretation ofsection 2259. United States v. Schmidt, 675 F.3d

1164, 1167 (8th Cir. 2012). All but one circuit court to have addressed the issue read

subsections 2259(b)(3)(A) through (E) to require proof of proximate cause. 

Laraneta, 700 F.3d at 990; United States v. Burgess, 684 F.3d 445, 459 (4th Cir.

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2012); United States v. Kearney, 672 F.3d 81, 95-96, 99 (1st Cir. 2012); United

States v. Evers, 669 F.3d 645, 659 (6th Cir. 2012); United States v. Aumais, 656 F.3d

147, 153 (2d. Cir. 2011); Monzel, 641 F.3d at 536-37; 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, 125-26 (3d Cir. 1999). 

Contra, In re Amy Unknown, 701 F.3d at 762, 773 (interpreting subsections

2259(b)(3)(A) through (E) not to require proof of proximate cause). “The ‘clear and

indisputable’ test is applied after” the court construes the statute. Gov’t of Virgin

Islands v. Douglas, 812 F.2d 822, 832 n.10 (3d Cir. 1987); see In re Wickline, 796

F.2d 1055, 1056-57 (8th Cir. 1986).

Section 2259 definesthe “full amount of the victim’s losses” asincluding costs

for:

(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;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate result of the

offense.

18 U.S.C. § 2259(b)(3) (emphasis added). Vicky claims that only the losses in the

last subsection require proof of proximate cause. She invokes the “rule of the last

antecedent” to conclude that the limiting clause – “as a proximate result of the

offense” – in the last item of a series modifies only that last item. See CincinnatiIns.

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Co. v. Bluewood, Inc., 560 F.3d 798, 803 (8th Cir. 2009), quoting Barnhart v.

Thomas, 540 U.S. 20, 26 (2003). “The rule of the last antecedent, however, ‘is not

an absolute and can assuredly be overcome by other indicia of meaning.’” United

States v. Hayes, 555 U.S. 416, 425-26 (2009), quoting Barnhart, 540 U.S. at 26. 

Fast and the government counter with the canon: “When several words are followed

by a clause which is applicable as much to the first and other words as to the last, the

natural construction of the language demands that the clause be read as applicable to

all.” McDaniel, 631 F.3d at 1209 (internal quotation marks omitted), quoting Porto

Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348 (1920) (finding “[n]o

reason” why the clause at issue “should not be read as applying to” all preceding

phrases); see also Fed. Mar. Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 734

(1973) (“It is . . . a familiar canon of statutory construction that [catchall] clauses are

to be read as bringing within a statute categories similar in type to those specifically

enumerated.” (citation omitted)).

Neither canon is absolute. See Barnhart, 540 U.S. at 26, 28-29; Porto Rico

Ry., Light & Power Co., 253 U.S. at 348. More persuasive here is the Second

Circuit’s reasoning in United States v. Hayes, 135 F.3d 133, 137-38 (2d Cir. 1998). 

There, the statute at issue, section 2264(b)(3), is identical to section 2259(b)(3),

except that its subsection (E) reads: “attorneys’ fees, plus any costs incurred in

obtaining a civil protection order.” Hayes, 135 F.3d at 137, quoting 18 U.S.C. §

2264(b)(3). The Second Circuit held, “Reading [subs]ection 2264(b)(3)(E) together

with [subs]ection 2264(b)(3)(F), attorneys’ fees and costs of obtaining a protection

order are among the ‘losses suffered by the victim as a proximate result of the

offense.’” Id. at 138 (emphasis added) (citations omitted). Vicky interprets Hayes

to mean that “the losses listed in subsections (A)-(E) are automatically . . .

proximately caused by the defendant’s conduct.” Rather, the Second Circuit held that

section 2264(b)(3) “authorizes restitution” for the specific losses in subsections

2264(b)(3)(A) through (E). See id. (emphasis added). The “proximate result” clause

in the last subsection 2264(b)(3)(F) shows that Congress considered the costs in

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subsections 2264(b)(3)(A) through (E) “among the lossesthat are proximately caused

by the offense,” but that causation still must be proved in each case. See id.

Similarly, the First Circuit – interpreting section 2259 at issue here – reasoned

that the “express inclusion [of the specific losses in subsections 2259(b)(3)(A)

through (E)] . . . indicates that Congress believed such damages were sufficiently

foreseeable to warrant their enumeration in the statute.” Kearney, 672 F.3d at 97; see

United States v. Gamble, –– F.3d ––– , –––, 2013 WL 692512, at *6 (6th Cir. Feb.

27, 2013) (“[T]he list of recoverable losses that the statute provides confirms the

breadth of what is a foreseeable consequence of defendants’ actions.”). That section

2259 enumerates those losses “bears emphasis because at the same time Congress

enacted § 2259, it enacted another restitution statute that did not enumerate categories

of losses.” Kearney, 672 F.3d at 97. Instead, that statute “stated that ‘the term “full

amount of the victims losses” means all losses suffered by the victim as a proximate

result of the offense.’” Id. (footnote omitted), quoting Pub. L. 103-322, § 250002,

108 Stat. 2082, 2083 (codified at 18 U.S.C. § 2327(b)(3)). Contrary to Vicky’s

assertion, the variation among these restitution statutes does not mean that Congress

eliminated the proximate cause requirement for the specifically enumerated losses in

subsections 2259(b)(3)(A) through (E). Rather, variances among these restitution

statutes “demonstrate thatCongress viewed particular offenses as causing foreseeable

risks of certain losses [meriting enumeration] in the[se] [restitution] statutes.” Id. at

97 n.13. The First Circuit concluded that, although Congress determined that

restitution offenses foreseeably cause the losses in subsections (A) through (E), the

defendant – to be liable – still must proximately cause the victim’s losses. See id. at

95-97, 99-100 (holding “that the proximate cause requirement was satisfied . . .

because [the defendant’s] actions resulted in identifiable losses as outlined in the

expert reports and Vicky’s victimimpactstatements” (footnote and citation omitted)).

This court agrees. Congress determined that these restitution offenses typically

proximately cause the losses enumerated in subsections 2259(b)(3)(A) through (E). 

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Congress did not mean that a specific defendant automatically proximately causes

those losses in every case. The government still has to prove that the defendant

proximately caused those losses. See 18 U.S.C. § 2259(a), (b)(3)(A)-(F), (c)

(“‘[V]ictim’ means the individual harmed as a result of a commission of a crime

under this chapter” (emphasis added)); id. § 3664(e); Laraneta, 700 F.3d at 990-92;

Kearney, 672 F.3d at 95-97.

5

V.

Vicky contends that the district court failed to award her the statutorily

mandated “full amount of [her] losses.” See 18 U.S.C. § 2259(b)(1). Because

issuance of the writ of mandamus is an extraordinary remedy, she must show that the

district court clearly and indisputably erred. Restitution is mandatory under section

2259. Id. § 2259(a), (b)(4)(A). The restitution order “shall be issued and enforced

in accordance with section 3664.” Id. § 2259(b)(2). Under that section, “[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) (emphasis added). The

government bears the “burden of demonstrating the amount of the loss sustained by

a victim as a result of the offense.” Id.

“[I]njury to the child depicted in the child pornography . . . is a readily

foreseeable result of distribution and possession of child pornography.” Kearney,

672 F.3d at 97 (emphasis added). Proving proximate cause may require nothing more

than “expert reports and . . . victim impact statements” about the costs enumerated in

subsections (A) through (E) that the victim incurred after the defendant’s offense

began. See, e.g., id. at 96-100 (discussing proximate cause). Determining the “full

See also S. Rep. No. 103-138, at 56 (1993) (noting that “section [2259] 5

requires sex offenders to pay costs incurred by victims as a proximate result of a sex

crime” (emphasis added)).

-15-
amount of the victim’s losses” that a defendant’s offense caused is best left to the

district court in the first instance. See 18 U.S.C. § 2259(b)(1) (“[T]he defendant

[shall] pay . . . the full amount of the victim’s losses as determined by the court . . .

.” (emphasis added)); Laraneta, 700 F.3d at 991; Burgess, 684 F.3d at 460; United

States v. McGarity, 669 F.3d 1218, 1270 (11th Cir. 2012).

Vicky claims the restitution award should be $952,759.81 — her (net)

documented losses to date. Fast did not possess any images of her until June 25,

2010. But she suffered losses before then. See, e.g., McDaniel, 631 F.3d at 1206. 

As the district court found, Fast could not have caused – and thus could not be liable

for – losses before that date. See Gamble, –– F.3d at ––– , 2013 WL 692512, at *11

(“As a logical matter, a defendant generally cannot cause harm prior to the date of his

offense.”); Kearney, 672 F.3d at 97 (“Vicky’s [harms] . . . were reasonably

foreseeable at the time of [the defendant’s] conduct.” (emphasis added)).

Vicky cites Hayes, where the defendant was liable for the victim’s costs in

obtaining civil protection orders even though the offense – violating the protection

orders by crossing state lines – occurred after the victim incurred the costs. Hayes,

135 F.3d at 137-38. Although the triggering offense occurred after the victim

incurred the costs, they were “a result of conduct by [the defendant] extending back

to the time [the victim] obtained the . . . protection orders.” Id. at 138. Here, Vicky

did not incur losses as a result of Fast’s conduct before his offense began.

Moreover, all $952,759.81 of Vicky’s losses are not clearly and indisputably

traceable to Fast’s crime. See Monzel, 641 F.3d at 538 (“[W]e [cannot] say that [the

6

Vicky argues that the district court should have held Fast jointly and severally 6

liable for the full amount of her losses. Then, she asserts, he could seek contribution

from other defendants liable to her. Section 3664 states, “If the court finds that more

than 1 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

-16-
victim] is clearly and indisputably entitled to the full $3,263,758 from[the defendant]

on the ground that her injuries are ‘indivisible.’”); see also Burgess, 684 F.3d at 460

(“The primary difficulty that will face the district court . . . will be the determination

. . . of the quantum of loss attributable to [the defendant] for his participation in

Vicky’s exploitation.”). “The government has not shown that [Fast] caused the

entirety of [Vicky’s] losses.” Monzel, 641 F.3d at 538 (emphasis in original); see 18

U.S.C. § 3664(e). The court did not clearly and indisputably err in not awarding

Vicky $952,759.81 restitution.

The district court ordered Fast to pay $3,333 restitution. The court explained

that this award consists of “$2,500 for medical and psychiatric care, occupational

therapy, and lost income under 18 U.S.C. § 2259(b)(3)(A), (B), & (D),” and $833 for

“attorney fees and costs under 18 U.S.C. § 2259(b)(3)(E).” It reasoned that $3,333

representsthe total amount of loss Fast proximately caused Vicky. The court fulfilled

its duty to award Vicky the “full amount of [her] losses.” See id. § 2259(a), (b)(1)

(“[T]he court shall order restitution . . . [and] the defendant [shall] pay . . . the full

amount of the victim’s losses as determined by the court.”); id. § 2259(c) (“‘[V]ictim’

means the individual harmed as a result of a commission of a crime under this

chapter.”); see also Kerr, 426 U.S. at 402 (“[T]he writ [of mandamus] has

traditionally been used in the federal courts only to confine an inferior court to a

lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority

liability among the defendants to reflect the level of contribution to the victim’s loss

and economic circumstances of each defendant.” 18 U.S.C. § 3664(h). Because

“there is only one defendant in this case,” section 3664(h) does not apply. E.g.,

Laraneta, 700 F.3d at 992-93; Aumais, 656 F.3d at 156 (“Section 3664(h) implies

that joint and several liability may be imposed only when a single district judge is

dealing with multiple defendants in a single case . . . .”); see Gamble, –– F.3d at –––,

2013 WL 692512, at *6 (rejecting joint-and-several liability and contribution partly

because “in this context a contribution system would be ‘extraordinarily clumsy’”

(quoting Laraneta, 700 F.3d at 993)).

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when it is its duty to do so.” (citation and internal quotation marks omitted)). The

court did not clearly and indisputably err in ordering Fast to pay $3,333 restitution.

* * * * * * *

The motions to dismiss Vicky’s direct appeal are granted. The petition for

mandamus is denied.

SHEPHERD, Circuit Judge, concurring in part and dissenting in part.

I concur with respect to sections I, II, and III of the majority’s opinion. I

dissent with respect to sections IV and V, and with respect to the judgment, because

I would follow the Fifth Circuit’s approach and hold that only damages awarded

under 18 U.S.C. § 2259(b)(3)(F) are subject to a proximate cause requirement. See

In re Amy Unknown, 701 F.3d 749, 752 (5th Cir. 2012) (en banc). Consequently, I

would grant Vicky’s petition for mandamus relief and remand for the district court

to recalculate her losses.

I.

As the majority correctly explains, Vicky is entitled to mandamus relief if she

can show three things: (1) she has “no adequate alternative means to obtain relief,”

(2) “the district court clearly and indisputably erred in the restitution amount it

awarded her,” and (3) “the writ is appropriate.” Supra at 11 (citing Cheney v. U.S.

Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81(2004)). I agree with the

majority that the first element issatisfied here becausemandamusisthe only potential

relief available to Vicky. See supra at 11. However, the majority goes on to conclude

that Vicky is not entitled to a writ of mandamus because her “losses are not clearly

and indisputably traceable to Fast’s crime.” Supra at 16. This is based on the

majority’s conclusion that all losses under section 2259 are subject to a proximate

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cause requirement. See supra at 15-17. Because I disagree with this interpretation

of the statute, I respectfully dissent.

A.

Section 2259 requires courts to order “the defendant to pay the victim . . . the

full amount of the victim’s losses . . . .” 18 U.S.C. § 2259(b)(1). The statute defines

“victim” as “the individual harmed as a result of a commission of a crime under this

chapter . . . .” 18 U.S.C. § 2259(c). The statute also provides:

For purposes of this subsection, the term “full amount of the victim’s

losses” includes any costs incurred by the victim for—

(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;

(E) attorneys’ fees, as well as other costs incurred; and

(F) any other losses suffered by the victim as a proximate

result of the offense.

18 U.S.C. § 2259(b)(3).

In In re Amy Unknown, the Fifth Circuit concluded that the plain language of

section 2259 imposes a proximate cause requirement only on losses awarded under

subsection (b)(3)(F). 701 F.3d at 762. The court reasoned that the rule of the last

antecedent, a well-established rule ofstatutory construction, “instructs that ‘a limiting

clause or phrase,’ such as the ‘proximate result’ phrase in § 2259(b)(3)(F), ‘should

ordinarily be read as modifying only the noun or phrase that it immediately follows.’”

Id. (quoting Barnhart v. Thomas, 540 U.S. 20, 26 (2003)). Significantly, the Supreme

Court applied the rule of the last antecedent in two recent cases. Id. at 764 (analyzing

-19-
Barnhart, 540 U.S. 20 and Jama v. Immigration & Customs Enforcement, 543 U.S.

335 (2005)). Because “[t]he structure and language of § 2259(b)(3) limit the phrase

‘suffered by the victim as a proximate result of the offense’ in § 2259(b)(3)(F) to the

miscellaneous ‘other losses’ contained in that subsection,” and because there is “no

‘other indicia of meaning’ in the statute to suggest that the rule of the last antecedent

does not apply here,” the court found that lossesin subsections(A)-(E) are not subject

to a proximate cause requirement. Id. at 762.

Thus, under the Fifth Circuit’s approach, as long as losses in subsections (A)-

(E) are incurred “as a result of a commission of a crime under this chapter,”

§ 2259(c), a district court must award victims “the full amount” of their losses under

section 2259(b)(1), regardless of whether the defendant proximately caused those

losses. See In re Amy Unknown, 701 F.3d at 762. Only miscellaneous “other losses”

are subject to a proximate cause requirement. Id.

This, of course, does not mean that the statute imposes no causal requirement

at all. As explained above, section 2259 defines “victim” as “the individual harmed

as a result of a commission of a crime under this chapter,” § 2259(c), and then

requires courts to order restitution for “the full amount of the victim’s losses,”

§ 2259(b)(1). Thus, before a court can order restitution, it must determine that (1) the

defendant committed a qualifying offense and (2) the person seeking restitution

suffered harm as a result of that offense. See § 2259. To the extent that the harm

resulting from the offense involves medical services, therapy or rehabilitation,

transportation, temporary housing, child care, lost income, or attorneys’ fees and costs

under subsections (A)-(E), a defendant must pay restitution for the full amount of

those harms, regardless of whether the defendant proximately caused them. Congress

likely chose not to impose a proximate cause requirement for these types of losses

because proving proximate causation would be virtually impossible in many

situations, thus leaving child victims without redress.

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The concept of causation in cases under section 2259 admittedly is

complicated. A defendant’s action is a “cause” of a victim’s injury if that action

somehow contributed to the injury. See Black’s Law Dictionary 250 (9th ed. 2009)

(defining “cause”). This general definition of cause is expansive. For example, a

victim whose images have been made widely available through posting on the

internetmay incur significant counseling expensesto address psychological problems

stemming from the knowledge that numerous unknown people are viewing the

7

images. Each individual defendant who viewsthose imagesis a “cause” of that harm

because, if no one viewed the images, the victim arguably would not have suffered

that particular form of psychological harm. See In re Amy Unknown, 701 F.3d at 773

(“By possessing, receiving, and distributing child pornography, defendants

collectively create the demand that fuels the creation of the abusive images. Thus,

where a defendant is convicted of possessing, receiving, or distributing child

pornography, a person is a victim under this definition if the images . . . include those

of that individual.”).

In contrast, “proximate cause” involves more of a policy judgment about

whether a particular defendant’s action bears a sufficient causal relationship to an

injury such that the law should hold the defendant liable for the injury. See Black’s

Law Dictionary 250 (9th ed. 2009) (defining “proximate cause” and noting that

“[s]ome boundary must be set to liability for the consequences of any act, upon the

basis ofsome social idea of justice or policy” (internal quotation marks omitted)). On

one end of the spectrum is the example above, where the victim’s psychological

problems are “caused” by innumerable unknown defendants. In this situation, the

causal link between a specific defendant’s conduct and the victim’s losses is more

tenuous because it would be virtually impossible to show that the victim’s

According to the Sixth Circuit, approximately 300 defendants already have 7

been convicted of possessing Vicky’s images. United States v. Gamble, Nos. 11-

5394/5544, slip op. at 19 (6th Cir. Feb. 27, 2013).

-21-
psychological trauma and attendant counseling expenses would have been any less

had that individual defendant not viewed the images. In other words, it is unclear

whether the victimcould prove that an individual defendant “proximately caused” his

or her losses. Compare United States v. Aumais, 656 F.3d 147, 154 (2d Cir. 2011)

(finding no proximate cause when evidence showed defendant was one of many who

viewed victim’s images, but victim “‘had no direct contact with [the defendant] nor

even knew of his existence’”) and United States v. Kennedy, 643 F.3d 1251, 1264

(9th Cir. 2011) (holding that while evidence which “showed only that [the defendant]

participated in the audience of persons who viewed the images . . . may be sufficient

to establish that [the defendant’s] actions were one cause of the generalized harm” to

the victims, “it is not sufficient to show that [the defendant was] a proximate cause

of any particular losses”), with United States v. Kearney, 672 F.3d 81, 99 (1st Cir.

2012) (“We reject the theory that the victim of child pornography could only show

[proximate] causation if she focused on a specific defendant’s viewing and

redistribution of her images and then attributed specific losses to that defendant’s

actions.”) and United States v. Burgess, 684 F.3d 445, 459-60 (4th Cir. 2012)

(adopting First Circuit’s interpretation of proximate cause).

On the other end of the spectrum are losses such as attorney’s fees incurred in

pursuing a restitution action against that defendant. Those losses bear a much closer

causal relationship to the individual defendant’s conduct, and thus it would be much

more likely that a victim could prove the defendant “proximately caused” those

losses. See Gamble, Nos. 11-5394/5544, slip op. at 18 (describing “litigation costs

in connection with the particular defendant” as “proximately caused harms [that] are

clearly traceable to a particular defendant”). Because I would hold that only

miscellaneous other losses in subsection (F) are subject to a proximate cause

requirement, and because the district court never addressed whether any of Vicky’s

claimed losses fall under subsection (F), it would be premature for me to attempt to

define the precise contours of “proximate cause” at this juncture.

-22-
Addressing causation, however, is only the first step that a court must take

when crafting a restitution award. Concluding that a defendant caused a victim loss,

either as a general “cause” with respect to losses in subsections (A)-(E) or as a

“proximate cause” with respect to miscellaneous other losses in subsection (F),

merely establishes that a court must enter a restitution order. The next step is for the

court to determine the amount of the restitution order.

Section 2259(b)(1) clearly states that the restitution order must be for “the full

amount of the victim’s losses.” Read in tandem with subsection 2259(c), which

defines “victim” as “the individual harmed as a result of a commission of a crime

under this chapter,” the statute’s reference to “the full amount of the victim’s losses”

is best understood as all lossesthe victim suffered as a result of the defendant’s crime

under Title 18, PartI, Chapter 110: Sexual Exploitation and Other Abuse ofChildren. 

Applying normal common-law principles, where the losses stem from an indivisible

injury, the defendant must be held jointly and severally liable for that injury. See

Burgess, 684 F.3d at 461 (Gregory, J., concurring in part and dissenting in part). For

example, if the hypothetical victim above has incurred a total of $500,000 in

counseling expenses as a result of knowing that numerous unknown people are

viewing his or her pornographic images, and the court makes a factual finding that

his or her psychological trauma is an indivisible injury, then the district court must

enter a restitution order for $500,000, even though the individual defendant is not the

only person responsible for those losses. See id. If the court determines that some

or all of the victim’s injuries are divisible, then the court must apportion liability for

those losses and enter a restitution order reflecting only the portion of those lossesfor

which the defendant is individually responsible. See id. An example of divisible

losses might be attorney’s fees incurred in pursing a restitution action against a

specific defendant. See Gamble, Nos. 11-5394/5544, slip op. at 18.

In cases where a restitution order reflects joint and several liability, traditional

joint and several liability principles would allow a defendant to bring contribution

-23-
actions against other individuals who contributed to the victim’s losses. See In re

Amy Unknown, 701 F.3d at 769-70 (citing 18 U.S.C. § 3664(h)). These same

8

principles would prevent victims fromrecouping more than “the full amount” of their

losses since a defendant ordered to pay restitution could introduce evidence that the

victim had already collected some or all of that restitution from a defendant in a

different case. See id. In some instances, defendants even may be able to obtain this

evidence from the government, as it appears the government keeps track of at least

some restitution awards. See Gamble, Nos. 11-5394/5544, slip op. at 16 (“The

Government . . . has already assembled a database to keep abreast of restitution

awards to Vicky all over the country.”).

But regardless of how defendants can obtain information about other restitution

awards, the fact that Congress drafted the statute to require defendants to reimburse

victims for “the full amount” of their losses reflects the policy judgment that child

victims should be fully compensated for their losses in the most efficient manner

possible; defendants, rather than child victims, should bear the responsibility offiling

additional lawsuits against other responsible parties in order to apportion

responsibility among them. Cf. In re Amy Unknown, 701 F.3d at 760 (noting that

section 2259 “reflects a broad restitutionary purpose”). BothCongress and the courts

are familiar with this approach of shifting responsibility for apportionment to

defendants, asthis is essentially the same approach used in CERCLA litigation. See,

e.g., Burlington N. and Santa Fe Ry. Co. v. United States, 556 U.S. 599, 614-15

Themajority concludes that section 3664(h) permits courtsto impose joint and

8

several liability only when there are multiple defendants in a single case. See supra

at 16 n.6. Section 3664(h) provides, “If the court finds that more than 1 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.” I agree with the Fifth Circuit that “nothing in

§ 3664 forbids” imposition of joint and several liability on defendants in separate

cases. See In re Amy Unknown, 701 F.3d at 770.

-24-
(2009). This interpretation not only reflects the plain language of the statute, but also

embracesthe sensible policy choice that the responsibility for potentially burdensome

litigation should fall on people who commit crimes against children, rather than on

those children.

Here, the district court calculated its restitution award based on two erroneous

premises: (1) that restitution can be awarded only for losses that the defendant

proximately caused and (2) that restitution awards cannot reflect joint and several

liability. United States v. Fast, 876 F. Supp. 2d 1087, 1088-89 (D. Neb. 2012). Thus,

Vicky has satisfied the second element of mandamus: that “the district court clearly

and indisputably erred in the restitution amount it awarded her . . . .” See supra at 11.

B.

The third and final element that Vicky must show to entitle her to mandamus

relief is that “the writ is appropriate.” See supra at 11. A writ of mandamus “is an

extraordinary remedy that is available only to correct a clear abuse of discretion.” In

re Apple, Inc., 602 F.3d 909, 911 (8th Cir. 2010) (internal quotation marks omitted). 

“[A] clear error of law or clear error of judgment leading to a patently erroneous

result may constitute a clear abuse of discretion.” Id. Here, Vicky submitted

evidence that she incurred more than $1.2 million in losses as a result of her sexual

abuse and the subsequent distribution of her images. The district court, however,

awarded only $3,333 in restitution due to its erroneous conclusions that(1) restitution

can be awarded only for losses that the defendant proximately caused and (2)

restitution awards cannot reflect joint and several liability. Fast, 876 F. Supp. 2d at

1088. Because the entire premise of the district court’s restitution calculation was

erroneous, Vicky has shown “that the writ is appropriate under the circumstances.” 

See Cheney, 542 U.S. at 381 (noting that this element is left to appellate court’s

discretion); United States v. Frazier, 651 F.3d 899, 910 (8th Cir. 2011) (remanding

-25-
for recalculation of restitution amount when original amount was based on erroneous

loss valuation method).

II.

Because Vicky has satisfied all three mandamus elements, I would grant her

petition for mandamus. Consequently, I would remand for the district court to

recalculate Vicky’s losses under section 2259(b)(3) and to enter a restitution order

reflecting “the full amount” of her losses as required by section 2259(b)(1).

______________________________

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