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
`
`------------------------------
`
`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).
`
`-2-
`
`

`

`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.” 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.
`
`-3-
`
`

`

`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 (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 grants the government the right to assert a victim’s rights on direct
`
`-4-
`
`

`

`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
`
`-5-
`
`

`

`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 (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
`
`-6-
`
`

`

`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)
`4
`(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
`of statutory 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))).
`
`-7-
`
`

`

`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 appeal from final 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.” Alcatel-
`Lucent 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
`
`-8-
`
`

`

`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 und Bergenland v. Nejezchleba, 477 F.3d 942, 948 (8th Cir. 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 that Congress intended” the traditional standard for
`mandamus to 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
`
`-9-
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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 “mandamus relief 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
`
`-10-
`
`

`

`(“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 mandamus is an extraordinary remedy reserved for extraordinary
`situations.” In re MidAmerican Energy Co., 286 F.3d 483, 486 (8th Cir. 2002) (per
`curiam), citing Gulfstream Aerospace Corp. v. Mayacamas Corp., 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 of section 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.
`
`-11-
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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 defines the “full amount of the victim’s losses” as including 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 Cincinnati Ins.
`
`-12-
`
`

`

`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 losses that 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 that Congress 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 victim impact statements” (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)).
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`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
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`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