United States v. Fast

709 F.3d 712

UNITED STATES of America, Plaintiff–Appellee

v. Robert M. FAST, Defendant–Appellee.Vicky, Child Pornography Victim, Interested party-Appellant.In re Vicky, Child Pornography Victim, Petitioner.

Nos. 12–2752, 12–2769.

United States Court of Appeals, Eighth Circuit.

Submitted: Nov. 15, 2012.

Filed: March 11, 2013.

Paul G. Cassell, argued, Salt Lake City, UT, James R. Marsh, White Plains, NY, Carol L. Hepburn, Seattle, WA, on the brief, for Appellant/Petitioner Vicky.

Jennifer L. Gilg, argued, Omaha, NE, Michael J. Hansen, AFPD, on the brief, Lincoln, NE, for Appellee Fast.

Steven A. Russell, AUSA, argued, Lincoln, NE, for Appellee United States.

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 ¹ ordered him 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.² She argues 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 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 bears the “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.” ³United States v. Fast, 876 F.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 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 that she 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, 92 S.Ct. 1361, 31 L.Ed.2d 636 (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,––– U.S. ––––, 132 S.Ct. 756, 181 L.Ed.2d 508 (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 grants the government the right to assert a victim's rights on direct 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, 113 S.Ct. 2063, 124 L.Ed.2d 161 (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 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. (alterations in original), quoting Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 91, 118 S.Ct. 1003, 140 L.Ed.2d 210 (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, see18 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 palpableinjury 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...