10th Circuit Fires the Series-Qualifier Canon Across the Restitution Bow

Earlier this month, in an uninspired decision in United States v. Benoit, the Tenth Circuit held that “showing only that defendant participated in the audience of persons who viewed the images of the victim…may be sufficient to establish that defendant’s actions were one cause of the generalized harm victims suffered due to the circulation of their images on the internet, but it is not sufficient to show that they were a proximate cause of any particular losses.”

In other words, “generalized harm” = no foul and no restitution for victims of child pornography.

According to the Tenth Circuit:

Courts have struggled with articulating a precise standard of proximate cause in the restitution context under § 2259. Although this court has not specified the nature of the proximate cause requirement in § 2259, several other circuits have determined that the government must show the victim’s losses were proximately caused by the particular defendant in question and that a showing of causation more generally is insufficient.

Although the Court “acknowledged” the Fifth Circuit’s groundbreaking en banc decision in In re Amy Unknown, it was instead “persuaded by the majority of our sibling circuits.”

The Court held that “in determining the scope of restitution to be awarded to a child pornography victim, § 2259 requires a showing that the victim’s losses are proximately caused by the defendant’s offense. Some circuits have relied on the “series-qualifier” canon to conclude that the proximate cause requirement applies to each of the subsections included in § 2259(b)(3).”

The Court concluded that “because proximate cause is such a widely accepted principle, we will not conclude that Congress intended to abrogate it in drafting § 2259 without good reason. … We agree with the majority of courts that Congress did not intend to create a system of strict liability under § 2259.”

The only remaining Circuit which has not considered restitution for victims of child pornography possession is the Third Circuit covering Pennsylvania, New Jersey and Delaware. The Marsh Law Firm, which helped write the brief in this case, is readying a case for appeal in the Third Circuit. In the meantime, three petitions for a writ of certiorari, also authored by the Marsh Law Firm, remain pending in the United States Supreme Court.

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