In re Amy & Vicky

The Ninth Circuit will not reconsider its prior interpretation of the Crime Victims Rights Act, denying restitution to child pornography victims where no causal connection between the defendant’s offense and the victim’s specific losses exists, absent higher authority from the Ninth Circuit en banc or the U.S. Supreme Court.

“Amy” and “Vicky,” child pornography victims, filed for a writ of mandamus pursuant to the Crime Victims Rights Act (“CVRA”). In a previous three-judge panel, the Court affirmed defendant Joshua Osmun Kennedy’s conviction and sentence, but vacated the restitution order entered by the district court. In doing so, the panel applied the Ninth Circuit’s interpretation of the CVRA in United States v. Laney and concluded that, for purposes of determining causation, “a court must identify a causal connection between the defendant’s offense and the victim’s specific losses before awarding restitution.” On remand, the district court denied restitution to petitioner “Amy.” On appeal, petitioners asked the Court to reconsider its prior decision based on a contrary statutory interpretation of the CVRA by the Fifth Circuit. The Ninth Circuit refused to overrule its previous decision, holding that the Court’s decision remains binding on the panel until an “intervening higher authority” authorizes the Court to abandon the prior panel decision. Therefore, the Court determined that the petitioners must raise the issue in a petition for rehearing en banc or in a petition for writ of certiorari with the United States Supreme Court. DENIED.