paroline supplemental brief after argument

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No. 12-8561

IN THE

Supreme Court of the United States___________DOYLE RANDALL PAROLINE,

Petitioner,v.

UNITED STATES OFAMERICA,ET AL.,Respondents.

___________

On Writ of Certiorari to the United States Courtof Appeals for the Fifth Circuit

___________

PETITIONERS SUPPLEMENTAL BRIEFAFTER ARGUMENT

___________

JEFFREY T.GREEN STANLEY G.SCHNEIDER*

FRANCES E.FAIRCLOTH THOMAS D.MORANSIDLEYAUSTIN LLP SCHNEIDER &MCKINNEY,1501 K Street, N.W. P.C.Washington, D.C. 20005 440 Louisiana, Ste. 800

Houston, TX 77002SARAH OROURKE SCHRUP (713) 951-9994NORTHWESTERN UNIV. [email protected] S.CT.PRACTICUM375 East Chicago Ave. F.R.BUCKFILES,JR.Chicago, IL 60611 BAIN,FILES,JARRET,

BAIN,&HARRISON,P.C.

CASIE L.GOTRO 109 W. Ferguson St.

ROMY B.KAPLAN Tyler, TX 75702

440 Louisiana, Ste. 800Houston, TX 77002

Counsel for Petitioner Doyle Randall ParolineMarch 7, 2014 * Counsel of Record


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(i)

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ................................. iiSUPPLEMENTAL BRIEF FOR PETITIONER

PAROLINE AFTER ARGUMENT .................... 1

CONCLUSION ..................................................... 9


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iiTABLE OF AUTHORITIES

Page(s)

CASESBurrage v. United States, 134 S. Ct. 881

(2014) ...................................................... passimCrandon v. United States, 494 U.S. 152

(1990) ......................................................... 7Dolanv. United States, 560 U.S. 605 (2010)

(Roberts, C.J., dissenting) ......................... 4Gross v.FBL Fin. Servs., Inc., 557 U.S. 167

(2009) ......................................................... 6Hughey v. United States, 495 U.S. 411

(1990) ................................................ 2, 4, 6, 7, 8Moskal v. United States, 498 U.S. 103

(1990) ......................................................... 8United States v. Dubose, 146 F.3d 1141

(9th Cir. 1998), cert. denied, 525 U.S. 975(1998) ......................................................... 5

Univ. Tex. Sw. Med. Ctr. v. Nassar, 133S. Ct. 2517 (2013) ...................................... 6

STATUTES

18 U.S.C. 2259 ........................................... 1, 218 U.S.C. 3664(e) ....................................... 1, 221 U.S.C. 841(b)(1)(C) ............................... 1

COURT DOCUMENTS

Br. for United States, Burrage v. UnitedStates, 134 S. Ct. 881 (2014) (No. 12-7515) .......................................................... 3

Br. for United States, Robers v. UnitedStates, No. 12-9012, 2014 WL 251996(U.S. Jan. 21, 2014) ................................... 5


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iii

TABLE OF AUTHORITIEScontinuedPage(s)

OTHER AUTHORITYU.S. Sentencing Commn, Report to the

Congress: Federal Child Pornography

Offenses(2012) .......................................... 3


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SUPPLEMENTAL BRIEF FOR PETITIONER

PAROLINE AFTER ARGUMENT

1. Amy and the Solicitor General argue that thisCourts recent decision in Burrage v. United States,134 S. Ct. 881 (2014), does not necessitate finding abut-for causation requirement in 18 U.S.C. 2259.S.G. Letter, Feb. 19, 2014 (The government agreeswith Amy that the Courts decision in Burrage nei-ther dictates the appropriate causation standard for

restitution awards under 18 U.S.C. [] 2259, norspeaks to whether the requisite causation standardhas been satisfied here.). But Burrage addressedlanguage very similar to the language at issue here.In Burrage, this Court interpreted the following lan-guage from 21 U.S.C. 841(b)(1)(C): death or seriousbodily injury results fromthe use of such substance.Burrage, 134 S. Ct. at 885 (emphasis added). Here,

the relevant language requires the same causal rela-tionship between a defendants conviction and man-datory restitution in three separate instances: 18U.S.C. 2259(c) defines victim as the individualharmed as a result of a commission of a crime; 2259(b)(3)(F) requires losses be the proximate re-sult of the offense; and 2259(b)(2) explains courtsshould award restitution in accordance with 18

U.S.C. 3664, which requires the prosecution todemonstrate the amount of the loss sustained by avictim as a result of the offense . . . . 18 U.S.C. 3664(e) (emphasis added).

In Burrage, the Court relied on the traditionalbackground principles that inform statutes usingresults from or similar language such as becauseof, based on, and by reason of.Burrage, 134 S. Ct.at 889. These principles require a showing of but-forcausation. Additionally, the Court noted that state


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courts interpret similarly worded criminal statutesin the same manner. Id. at 889 (noting that resultsin, because of, and as a result of have all required

but-for causation in state courts). The phrase as aresult of in 2259(b)(3)(F), 2259(c) and 3664(e)should likewise require but-for causation.

2. The Court in Burragerejected the contributingfactor theory of causation, Burrage, 134 S. Ct. 890-91, just as the Court refused to include anything be-yond the offense of conviction in calculating losses for

restitution orders in Hughey v. United States, 495U.S. 411, 420 (1990). Yet this is the same causationargument presented by both Amy and the SolicitorGeneral here. The Burrage decision rests not uponany defined term peculiar to that statute, but uponthe ordinary meaning of the words results from. Id.at 887. The Court held [w]here there is no textual orcontextual indication to the contrary, courts regularly

read phrases likeresults from to require but-for cau-sality. Id.at 888 (emphasis added). Specifically, theCourt emphasized that it is one of the traditionalbackground principles against which Congress legis-late[s], . . . that a phrase such as results from im-poses a requirement of but-for causation. Id.at 889(internal citation omitted) (quoting Univ. Tex. Sw.Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2525 (2013)).

Had Congress intended 841(b)(1)(C) to only requirecontributing causation, it would have written thestatute with language that did not import[ ] but-forcausality.Burrage, 134 S. Ct. at 891.1

1InBurrage, the Court held that the drug distributed by the

defendant is not an independently sufficient cause of the vic-

tims death or serious bodily injury, and therefore the defend-

ant is not liable under the enhancement provision unless [the

victims use of the drug] is a but-for cause of the death or inju-

ry. 134 S. Ct. at 884. In the same way, the but-for cause test


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In requiring but-for causation, the Court also ex-pressly rejected the less demanding and less wellestablished Prosser & Keaton conversion theory pro-

posed by the Solicitor General. Id.at 890-91; see alsoS.G. Br. 22 (arguing for aggregate causation wherethe defendants bear[] a like relationship to theharm and [e]ach seeks to escape liability for a rea-son that . . .would likewise protect each other de-fendant in the group . . . leaving the plaintiff withouta remedy . . . . (alterations original)).

Amy attempts to counter the broadly applicableprinciples announced inBurragewith an invitation tojudicial policymaking. She warns that any standardother than contributing cause will let all of thewrongdoers . . . escape liability . . . . Respt Supp. Br.8-9. The Solicitor General made the same argumentinBurrage. See Br. for United States at 24, Burrage,134 S. Ct. 881 (No. 12-7515). But all wrongdoers here

would not escape liability as Amy argues. All defend-ants convicted of child pornography would face crimi-nal liability. More importantly, the majority of indi-viduals convicted for possession of child pornogra-phyand sentenced under 2G2.2also engaged inknowing receipt and/or distribution conduct. U.S.Sentencing Commn, Report to the Congress: FederalChild Pornography Offenses146-48 (2012) (53.1 per-

cent (878) of the 1,654 child pornography offenderssentenced [in Fiscal Year 2010] under 2G2.2 wereconvicted of possession [of child pornogra-phy]. . . . [And] the vast majority of all offenders sen-tenced under 2G2.2 (1,613, or 97.5%) actually en-gaged in knowing receipt and/or distribution con-

was not met here. See Presentence Investigation Report 14,

United States v. Paroline, No. 6:08-cr-61 (E.D. Tex. June 10,

2009). This determination in the PSR was confirmed by the Dis-

trict Courts finding of no proximate causation.


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duct.). The fact that 2259(b)(3)(F), 2259(c),and 3664(e) require but-for cause for possession doesnot prevent victims from receiving restitution from

the vast number of individuals who actually engagein distribution.

Whether these policy arguments are sound, howev-er, does not matter. The Court emphasized onceagain inBurrage, as it did in Hughey, that the role ofthe Court is to apply the statute as it is writteneven if . . . some other approach might accord with

good policy.Burrage, 134 S. Ct. at 892 (internal quo-tation marks and alterations omitted) (quotingCommr v. Lundy, 516 U.S. 235, 252 (1996)); see alsoHughey, 495 U.S. at 422 ([L]ongstanding principlesof lenity . . . preclude our resolution of the ambiguityagainst petitioner on the basis of general declarationsof policy . . . .). [I]t frustrates rather than effectu-ates legislative intent . . . to assume that whatever

furthers the statutes primary objective must be thelaw.Dolanv. United States, 560 U.S. 605, 625 (2010)(Roberts, C.J., dissenting) (quoting Rodriguez v.United States, 480 U.S. 522, 525-26 (1987) (percuriam)). Even assuming, as the Solicitor Generalposits, that policy points in a different direction,Burrage demonstrates that courts must interpret 2259(c)s and 3664(e)s results from language ac-

cording to its plain meaning and not according to theparties, or even the Courts assessment of what con-stitutes good policy.

3. Amy argues thatBurrages reasoning should notapply in this case because Burrage interpreted astatute that imposed criminal liability, while theMandatory Victims Restitution Act (MVRA) shouldbe interpreted like a tort statute. See Respt Supp.Br. 2 (the contributing cause basis for liability iswidely recognized in statutes involving tort com-


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pensation).This contention is misguided for at leastthree reasons.

First, Amy overlooks that the MVRA is a criminal,not tort, statute. As the Solicitor General recentlyrecognized, the MVRA incorporates traditional pur-poses of both criminal and tort law: in addition to vic-tim compensation, Congress also mandated restitu-tion for certain crimes under the MVRA to mete outappropriate criminal punishment for the offense con-duct. Br. for United States, Robersv. United States,

No. 12-9012, 2014 WL 251996, at *40 (U.S. Jan. 21,2014) (quotingPasquantinov. United States, 544 U.S.349, 365 (2005)). Furthermore, restitution under theMVRA ispunishmentbecause the MVRA has not onlyremedial, but also deterrent, rehabilitative, and re-tributive purposes . . . . United States v.Dubose, 146F.3d 1141, 1144 (9th Cir. 1998), cert. denied, 525 U.S.975 (1998) (emphasis added). Although the MVRA

arguably encompasses some tort law principlesnamely, compensation for victimsviewing it exclu-sively as a tort statute ignores much of its purpose, asthe Solicitor General argued in Robers. The MVRAsmultiple purposes do not support a reading that ig-nores an important background principle of bothcriminal and tort statutes: that phrases like resultsin imply a but-for causation requirement.

Second, even if the Court understands the MVRAas a civil statute, the assertion that but-for causationis limited to statutes imposing criminal liability failsto account for large swaths of Burrage. Indeed, theCourt cited but-for causation requirements in similar-ly worded tort statutes, Univ. Tex. Sw. Med. Ctr.v.Nassar, and Gross v.FBL Fin. Servs., Inc., 557 U.S.167 (2009). Burrage, 134 S. Ct. at 888-89. In Nassar,the Court held that Title VIIs antiretaliation provi-sion, which contains the language (results from),


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offense, and was adamant that the scope of restitu-tion must be tied strictly to the crime of conviction.Id.at 420 ([T]he loss caused by the conduct underly-

ing the offense of conviction establishes the outer lim-its of a restitution order.); see alsoid.at 422 (holdingthat, even if the statutory language were ambiguous,longstanding principles of lenity . . . preclude ourresolution of the ambiguity against petitioner on thebasis of general declarations of policy in the statuteand legislative history.).

In 1996, in the wake of Hughey, Congress amendedthe VWPA to create the MVRA, including 3664(e).By doing so, it codified Hughey, incorporating a but-for causal link between the crime of conviction andlosses sustained by a victim. The Courts observationin Burrage, that Congress could have written thestatute to impose a mandatory minimum when theunderlying crime contributes to death or serious bod-

ily injury, or adopted a modified causation test tai-lored to cases involving concurrent causes but chosenot to, applies here. Burrage, 134 S. Ct. at 891. Con-gress created in the MVRA a uniform standard ofproof consistent with this Courts precedent. Amysargument, therefore, boils down to a policy argumentthat both Congress and this Court have repeatedlyconsidered and rejected by writing and interpreting

statutes to include a but-for causation requirement ina variety of contexts.

4. Even if the language of 2259 does not explicitlyrequire but-for causation, the rule of lenity mandatesthat it be interpreted as requiring but-for causation.The rule of lenity requires that construction of acriminal statute like 2259 must be guided by theneed for fair warning . . . . Crandon v. United States,494 U.S. 152, 160 (1990). It therefore demand[s] res-olution of ambiguities in criminal statutes in favor of


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the defendant . . . . Hughey, 495 U.S. at 422 (apply-ing the rule of lenity in the context of a restitutionorder); see also Moskalv. United States, 498 U.S. 103,

107-08 (1990) (the touchstone of the rule of lenity isstatutory ambiguity (internal quotation marks omit-ted) (quoting Bifulco v. United States, 447 U.S. 381,387 (1980))).

InBurrage, Justices Ginsburg and Sotomayor disa-greed with the Courts holding that results fromstatutory language always requires a showing of but-

for causation, but concurred in the judgment, explain-ing that the rule of lenity precluded interpreting thestatute against the defendant. As Justice Ginsburgwrote, where there is room for debate, one shouldnot choose the construction that disfavors the de-fendant.Burrage, 134 S. Ct. 892 (Ginsburg, J., con-curring) (quoting Id.at 891).

For the same reason, if the Court finds 2259 to be

ambiguous, it should apply the rule of lenity and re-fuse to give it a meaning that is different from itsordinary, accepted meaning, and that disfavors thedefendant. Id.at 891. Accordingly, this Court shouldread as a result of to demand the same but-forcausation as was required inBurrage.


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