HARM & CAUSATION

TWO KEY HURDLES FOR VICTIMS SEEKING RIGHTS UNDER THE CVRA PUBLIC POLICY

• Give victims a voice. • The CVRA “is to be construed broadly so as to achieve the Act’s objective.” Padilla v. Lever, 463 F.3d 1046, 1057 (9th Cir. 2006). • The objective of the CVRA is to dramatically rework the criminal justice system by giving those affected by crime valuable rights, including but not limited to, an independent voice in criminal proceedings. Kenna v. U.S. Dist. Court for C.D. Cal., 435 F.3d 1011, 1013 (9th Cir. 2006).

WHAT IS A VICTIM?

“a person directly and proximately harmed as a result of a Federal offense . . . .”

18 U.S.C. § 3771(e) SOMETIMES, A VICTIM IS OBVIOUS.

• A shoots V • A sexually assaults V • A robs V

Common thread: violent crimes.

SOMETIMES IT’S NOT

• P violates the Clean Air Act • P violates RICO • P violates banking or lending laws • Many Ps distribute child pornography over a period of years

KEY ISSUES

• Has the victim suffered direct and proximate harm as a result of criminal conduct? • What is “harm”? • Was harm caused by the criminal conduct? • How does this standard differ from the causation standard used in civil tort cases? TWO PART TEST

(1)harm would not have occurred but for the criminal conduct, and (2)the causal nexus between the criminal conduct and the harm sustained is not so remote in time or fact as to be unreasonable.

United States of America v. Atlantic States Cast Iron Pipe Co., et al., 612 F. Supp. 2d 453, 471 (U.S. Dist. N.J. 2009) citing United States v. Vaknin, 112 F.3d 579, 589-90 (1st Cir. 1997). ENVIRONMENTAL CRIME

UNITED STATES V. CITGO CITGO – CONVICTED OF VIOLATING THE CLEAN AIR ACT IN 2007 From on or about January, 1994, and continuing to on or about May, 2003 . . . the defendant [CITGO corporate entities] . . . did knowingly operate a new stationary source, an oil water separator, which may emit a hazardous pollutant, benzene, that is tank 116 at the Citgo East Plant Refinery, without an emission control device; to wit, a fixed or floating roof to prevent the emission of benzene into the environment. KEY ELEMENTS OF CITGO’S CONDUCT

• Knowingly operated equipment • That may emit benzene, a hazardous pollutant • Without proper emission control devices • Over a 9 year period CITGO’S EAST PLANT REFINERY … THE SURROUNDING NEIGHBORHOOD NUTSHELL FACTS

Bad smells, 9 years operating headaches, uncovered tanks; nosebleeds, fear, TCEQ traces smells on increased risk of 2 specific dates in cancer; response to calls decreased property values DISTRICT COURT INITIALLY RULED THERE ARE NO VICTIMS

• No expert testimony linking specific diagnoses to benzene discharges from the plant at specific dates/times • Government did produce experts • A sample of neighbors testified to various health- related issues because of the discharges as well as confirmed specific smells • Court initially opined that the tanks caused unpleasant odors, but there was no proof showing the concentration levels in the emissions caused “health effects.” THE DISTRICT COURT’S ORIGINAL “VICTIM” RULING

In the present case, the Government has not adequately proven that tanks 116 and 117 are the specific cause of the alleged victims’ health conditions. The Court finds that in light of the potential causal ambiguities, something more than symptoms alone are necessary to prove causation. Although the government has traced a few odors back to tanks 116 and 117, the temporal connection between exposure and symptoms is generally not entitled to great weight. Although tanks 116 and 117 may have caused unpleasant odors, there is no proof showing that the concentration of chemicals in these emissions rose to the level necessary to cause health effects. Due to these circumstances, the proof of causation before this Court is inconclusive. DISTRICT COURT’S DILEMMA

• Briefing by Defendant consistently confuses civil tort standard with CVRA standard • Neighborhoods are sandwiched between 3 refineries • Court is extremely concerned that CITGO not be punished for something another refinery did – even though other refineries have not been accused of violating Clean Air Act in same manner • Air monitoring equipment is not placed such that there is physical evidence of benzene concentrations at eye level in the neighborhoods WHY THIS IS AN UNFAIR BURDEN TO VICTIMS

• It places undue burden on victims to require that they finance expert witnesses to prove they are victims. • This takes criminal procedure back to Colonial America by forcing victims to underwrite part of their own prosecution. • Common sense says this is different from a tort case. • Victim is NOT a party • Restitution is not the same as tort damages – even though they share some elements • Defendant has already been convicted of a crime under a tougher evidentiary standard • Ignores the fact that environmental statutes criminalize endangerment. PROCEDURAL POSTURE

• Government presented multiple motions for reconsideration on the victim issue • All were denied • Months passed, during which victims found pro bono counsel – and – • Lawyers representing the victims filed a motion to be designated crime victims • Court denied the motion based on passage of time: • “Because the community members have not . . . offered any explanation why they could not have raised their two “new” arguments four years ago, their Motion to be Declared Victims under the CVRA is DENIED.” FIFTH CIRCUIT GRANTS MANDAMUS RELIEF

The CVRA does not contain a time limit within which putative crime victims must seek relief in the district court. The only time limit discussed in the statute applies when a victim seeks “to re-open a plea or sentence.” Id. § 3771(d)(5). Because Petitioners are not seeking to reopen a plea or sentence, that provision is inapplicable. Here, where Petitioners raise arguments not previously raised by the Government during the time the Government represented their interests, and where Petitioners have been able to retain counsel, issuance of a writ is appropriate. Accordingly, we direct the district court to consider the arguments raised by pro bono counsel below in Petitioners’ motion to be afforded crime victim status under the CVRA. SMALL SUCCESS ON REMAND: HARM

• The victims’ “new” argument was that the Court had improperly required victims to prove “injury” as opposed to “harm.” • The DC presumed “injury” to be a diagnosable health condition. • “Harm” is much less. Being subjected to bad smells is “harm” even if it does not result in a diagnosable condition. • Increasing a person’s risk of contracting a diagnosable disease in the future is also “harm.” INJURY HARM

• Physical impact • Broader • Immediate trauma • Can be subjective • Contact that causes • Physical injury not fear in a reasonable required person • Includes increased risk • Objective proof of injury • Diagnosis • May not be • Medical treatment quantifiable in dollars • Quantifiable in dollars DC’S RULING ON REMAND

Instead, the Court finds that testimony by the Community Members and other witnesses that they suffered symptoms such as burning eyes, bad taste in the mouth, nose burning, sore throat, skin rashes, shortness of breath, vomiting, dizziness, nausea, fatigue, and headaches is sufficient to constitute “harm” under the CVRA.

AND NOW . . .

• Government requested but was denied a sentencing jury. Victims joined in the request. • Victims have filed a request for restitution as a condition of probation (MVRA does not apply.) • Medical monitoring • Relocation expenses • Attorneys fees • Government has identified approximately 500 more victims. All victims, including those represented independently, have filed VIS. IMPACT OF THIS CASE

• Recognizes that there is a difference between “harm” under CVRA and “injury” or “damage” in civil cases. • Recognizes endangerment (increased risk of future injury) as harm in environmental crime context. • Confirms that there is no pre-sentencing time limit for victims to request their rights under CVRA.

Injury (diagnosed condition) Harm

Few Victims  Many Victims  Objective Subjective

Excludes people who may legitimately have Brings more who have suffered under suffered protection of the law Barriers: Still may have uphill battle to prove ¨ Economic (Those who cannot afford medical entitlement to restitution. care won’t have a diagnosis; places burden on victims to hire expert witnesses) ¨ Scientific (Victims may to their doctors , but not get an accurate diagnosis or get referral to the right kind of specialist; monitoring equipment is outside victims’ control)

WHY HARM SHOULD BE DEFINED BROADLY IN ENVIRONMENTAL CRIME CASES WHITE COLLAR CRIMES ISSUES

• Number of victims in ID theft and fraud schemes • What is the harm when victim is able to recoup money prior to trial/plea • Finger-pointing: • Victim participated in the criminal activity • Double-dipping • Standing to appeal denial of victim status

DEFINING FINANCIAL HARM

• When is monetary expenditure financial harm • Government Agencies • Pawn Shop • Shareholders

ID THEFT

• “Crime that keeps on giving” • Even in horrendous cases, victim may not lose money • “The creditor is the real victim.” • Harm beyond economic • Misunderstood and unexpected • Victims suffer wide variety of emotional harm including diagnosable PTSD, depression, anxiety disorders • Value of time spent recovering IDENTITY THEFT ENFORCEMENT AND RESTITUTION ACT

• 18 U.S.C. § 3663(b) • Allows victims of identity theft to request restitution for the time spent repairing their credit • “Identity theft” encompasses a wide range of criminal statutes, e.g.: • identification fraud (18 U.S.C. § 1028) • credit card fraud (18 U.S.C. § 1029) • computer fraud (18 U.S.C. § 1030) • mail fraud (18 U.S.C. § 1341) • wire fraud (18 U.S.C. § 1343) • financial institution fraud (18 U.S.C. § 1344).

CHILD PORNOGRAPHY

THE CONTINUING SAGA OF AMY UNKNOWN WHO’S THE VICTIM

• Generally, an issue that arises in restitution claims • Children whose images are viewed, sold, traded • Continuing nature of the crime presents a dilemma • Once the images are “out there” they continue to be viewed infinitely and indefinitely • How do we quantify “the full amount of the victim’s losses?” • Should the courts attempt to avoid double restitution recovery when multiple perpetrators are viewing a victim’s images across many states/countries • Defendants have raised issue whether victim must suffer “personal injury” CAUSATION

• Harm suffered must be “proximately caused” by Defendant’s receiving and distributing images – except . . . • Causal nexus must not be so far removed from criminal conduct as to be unreasonable • Contrast: • Cases where evidence shows victim’s response to notification that another person has been accused of receiving or distributing images • Cases where evidence shows harm to victim generically

18 U.S.C. § 2259 – CHILD PORNOGRAPHY RESTITUTION ISSUE

•(3) Definition.— For purposes of this subsection, the term “full amount of the victim’s losses” includes any costs incurred by the victim 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.

CURRENT CIRCUIT SITUATION

Circuit Case Name Victim Presented Victim Position Argument Accepted

1st US v. Kearney No No 2nd US v. Aumais No No 3rd N/A 4th US v. Burgess Yes No 5th (en banc) In re Amy Yes Yes 6th US v. Evers No No 7th US v. Laraneta Yes No 8th US v. Fast Yes Pending 9th US v. Kennedy No No 10th US v. Benoit Yes Pending 11th US v. McDaniel Yes No D.C. US v. Monzel Yes No PETITION FOR CERTIORARI FILED (NOV. 27, 2012)

Congress enacted the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, to benefit victims of federal child pornography crimes, including petitioners like Amy and Vicky, whose child sex abuse images are traded and collected over the internet by countless individuals worldwide. The statute provides in part that a court “shall order restitution” for a victim of any child pornography crime in “the full amount of the victim’s losses.” Congress defined these losses as including psychological counseling, lost income, attorneys’ fees, child care expenses, as well as “any other losses suffered by the victim as a proximate result of the offense.” The question presented is whether the Mandatory Restitution for Sexual Exploitation of Children Statute, 18 U.S.C. § 2259, excuses a defendant from paying restitution for the itemized loss categories unless there is proof that the victim’s losses were the proximate result of an individual defendant’s child pornography crime.

RESOURCES

• Starr, et al., A New Intersection: Environmental Crimes and Victims’ Rights, 23 NATURAL RESOURCES & ENVIRONMENT 41, 43 (2009); In re W.R. Huff Asset Mgmt. Co., LLC, 409 F.3d 555, 559 (2d Cir. 2005) • R.A. Duff, Criminalizing Endangerment, 65 LA. L. REV. 941, 949 (2005). • Paul G. Cassell, Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Light of the Crime Victims’ Rights Act, 2005 BYU L. REV. 835, 857.

CONTACT INFORMATION

Paula Pierce Texas Legal Services Center 815 Brazos, Suite 1100 Austin, Texas 78701 (512) 637-5414 (direct) (888) 343-4414 (client intake) (512) 477-6576 (fax [email protected]