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In Re: Amy & Vicky, Child Pornography v. United States

October 24, 2012

IN RE: AMY & VICKY, CHILD PORNOGRAPHY VICTIMS. AMY & VICKY, CHILD PORNOGRAPHY VICTIMS, PETITIONERS,
v.
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON, SEATTLE, RESPONDENT, JOSHUA OSMUN KENNEDY, REAL PARTY IN INTEREST.



Petition for Writ of Mandamus to the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding D.C. No. 2:08-cr-00354-RAJ-1

Per curiam.

FOR PUBLICATION

OPINION

Submitted October 23, 2012*fn1

Before: Ronald M. Gould, Richard R. Clifton, and Jay S. Bybee, Circuit Judges.

Per Curiam Opinion

OPINION

This is a petition for a writ of mandamus filed pursuant to 18 U.S.C. § 3771, the Crime Victims Rights Act ("CVRA").*fn2

[1] This matter has previously been on appeal, see United States v. Kennedy, 643 F.3d 1251 (9th Cir. 2011) ("Kennedy"), and a three-judge panel of this court affirmed defendant's conviction and sentence but vacated the prior restitution order entered by the district court. In so doing, the panel applied United States v. Laney, 189 F.3d 954, 965 (9th Cir. 1999) (holding that 18 U.S.C. § 2259 "incorporates a requirement of proximate causation" based in part on the "proximate result" language in 18 U.S.C. § 2259(b)(3)(F)), and concluded that for purposes of determining causation, "a court must identify a causal connection between the defendant's offense conduct and the victim's specific losses" before awarding restitution under 18 U.S.C. § 2259. See Kennedy, supra, 643 F.3d at 1262. The panel then remanded for further proceedings.

On remand, the district court denied restitution to petitioner "Amy" but awarded petitioner "Vicky" $4,545.08 in restitution on August 24, 2012 and October 11, 2012, respectively.

Petitioners Amy and Vicky challenge these district court orders.

In reviewing CVRA mandamus petitions, this court "must issue the writ whenever we find that the district court's order reflects an abuse of discretion or legal error," and we need not balance the factors outlined in Bauman v. U.S. Dist. Court, 557 F.2d 650 (9th Cir. 1977) in deciding these petitions. Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006).

[2] Petitioners contend that this court erroneously decided Kennedy, and urge us to overrule Kennedy and reverse the district court's restitution orders. Petitioners note that the Fifth Circuit, sitting en banc, recently held that:

§ 2259 only imposes a proximate result requirement in § 2259(b)(3)(F); it does not require the Government to show proximate cause to trigger a defendant's restitution obligations for the categories of losses in § 2259(b)(3)(A)-(E). Instead, with respect to those categories, the plain language of the statute ...


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