Sunday, July 17, 2011

Case o' The Week: Causation Fixation Sensation -- Kennedy and Child Porn Restitution

Do you still have a hazy memory, from way back in your 1L Tort class, of that lecture on causation and proximate cause?

Thankfully, Judge Ikuta does -- and explains it all in detail in a comprehensive discussion of restitution in the context of child pornography prosecutions. United States v. Kennedy, 2011 WL 2675918 (9th Cir. July 11, 2011), decision available here.

Players: Decision by Judge Ikuta, joined by Judges B. Fletcher and Paez.

Facts: When Kennedy returned from an overseas trip through Sea-Tac Airport, searches of his laptop revealed 5,000 images of child porn. Id. at *1.

He went to trial, and promised not to contest the age of the minors in the images. Despite that promise the government was permitted, over defense Federal Rule of Evidence (FRE) 403 objection, to call agents who had investigated the child abuse that had produced the images at issue. Id.

Kennedy was convicted of possession and transportation of child porn. At sentencing, two of the victims portrayed in the images – Amy and Vicky – submitted large restitution demands. Id. at *2. The Court cut those demands dramatically, but still imposed a $65,000 restitution order. Id. at *3.

Issue(s): “[Kennedy argues] that the district court’s restitution order was unlawful under 18 U.S.C. § 2259 because the government failed to prove, by a preponderance of the evidence, the measure of the losses to Amy and Vicky that were proximately caused by Kennedy’s offense. This argument requires us to consider what constitutes a sufficient chain of causation between the defendant's offense conduct and the victims' losses to justify an award of restitution under § 2259. This difficult issue of statutory interpretation has been considered, but not satisfactorily resolved, by several of our sister circuits.” Id. at *5.

Held: “[A]lthough the government need not prove that Kennedy's conduct was the sole cause of the victims’ losses, it must prove that his conduct was a “material and proximate cause” of those losses. . . . Likewise, while there may be intervening links in the chain between Kennedy's conduct and the victims’ losses, such links must be related to Kennedy's conduct. . . The government has not carried its burden here, because it has not introduced any evidence establishing a causal chain between Kennedy's conduct and the specific losses incurred by Amy and Vicky. The government did not show how Kennedy's actions in transporting the images caused Amy's lost income and loss of enjoyment of life or Amy and Vicky's future counseling costs. Nor did the government introduce evidence that Amy and Vicky could have avoided certain losses had Kennedy not transported the images. Indeed, the government introduced no evidence that Amy and Vicky were even aware of Kennedy’s conduct.” Id. at *9 (citations omitted).

“Because the district court's restitution order directed Kennedy to pay for losses that the government did not prove were proximately caused by his offense, the order was unlawful under § 2259 and must be vacated.” Id. at *12.

Of Note: Judge Ikuta doesn’t quite say that it will be impossible for the government to prove adequate causation for restitution of child porn victims under § 2259 – but she comes awfully close. Id. at *12. She invites Congress to “reconsider whether § 2259 is the best system for compensating the victims of child pornography offenses.” Id. In short, Kennedy is close to the death knell for child porn restitution under § 2259 in the Ninth.

How to Use: Hard for those who defend the indigent to get too worked-up over Kennedy: our clients typically can’t afford to pay restitution in any event. The decision, moreover, is laced with other less-welcome holdings. Judge Ikuta finds that the district court didn’t err by permitting the testimony of the officers who investigated the underlying sex abuse of the minors in the photos, despite a FRE 403 objection. Id. at *3. Judge Ikuta concedes that the defense promised not to contest the age of the minors, but the defense did not offer to stipulate to this fact. Id. Absent that stipulation, the government was permitted to introduce this (very damning) evidence.

The morale? If you try to shimmy by without actually stipulating to facts that establish elements, anticipate a cool reception to a FRE 403 challenge when you get to Ninth.

For Further Reading: The good prof Berman has an interesting post on Kennedy, and a useful collection of resources on child porn restitution issues, here.

Image of SeaTac from

Steven Kalar, Senior Litigator. Website at


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