Supreme Court Update: Paroline v. United States (12-8561), White v. Woodall (12-794), Prado Navarette v. California (12-9490) and Order List

April 25, 2014 Supreme Court Update

Greetings, Court fans!

We know you've barely finished digesting Schuette, but we're back to catch you up on the Court's remaining decisions from this week: Paroline v. United Sates (12-8561), addressing restitution for victims of child pornography; White v. Woodall (12-794), reversing a grant of habeas corpus for failure to adhere to AEDPA's deferential standard of review of state court decisions (shocking, we know); and Prado Navarette v. California (12-9490), holding that a traffic stop prompted by an anonymous 911 tip didn't violate the Fourth Amendment under the facts presented.

Paroline v. United States (12-8561) involves a narrow issue regarding the availability and calculation of restitution for child pornography victims, but the case generated three opinions containing a fascinating discussion of the tort law concepts of actual causation, proximate causation, and "alternative" causation frameworks. We're only going to skim the surface, but for the tort professors (and other tort junkies) out there, this criminal case may be worth a read. Paroline pleaded guilty to possession of child pornography, including two images of a young girl (who, throughout the litigation, went by the pseudonym "Amy"). Amy had been victimized by her uncle as a child, but largely recovered from that abuse after her uncle was convicted and she went through counseling. Sadly, she later learned that her pictures were widely available on the internet and had been viewed by thousands of people, causing her to suffer afresh. As she put it, "the crime has never really stopped . . . . I am being abused over and over again." Amy sought restitution from Paroline in theamount of approximately $3.4M for injuries associated with the circulation of the images, including past and future lost income, medical treatment and counseling.

Enacted as part of the Violence Against Women Act of 1994, 18 U.S.C. §2259 requires district courts to order restitution for certain offenses, including possession of child pornography. Section 2259 emphasizes that the award is "mandatory" and states that the court "shall direct the defendant to pay . . . the full amount of the victim's losses." The question, however, was whether the "losses" contemplated included only those inflicted by the particular offender or all losses of the victim even if they were caused by others. "Victim" is defined as "the individual harmed as a result of a commission of a crime under this chapter," and "losses" include a list of specific items (such as medical care and lost wages) and "any other losses suffered by the victim as a proximate result of the offense." The statute then describes how the district court should calculate restitution, providing that "an order of restitution shall be issued and enforced in accordance with section 3664 in the same manner as an order under section 3663A." Sections 3663A and 3664 are not specific to crimes involving child pornography, but instead provide the general restitution framework for victims of crimes. Under those sections, the government must prove, by a preponderance of the evidence, "the amount of the loss sustained by a victim as a result of the offense." Applying these provisions, the district court declined to award restitution, reasoning that the Government had failed to establish by a preponderance of the evidence the amount of loss Amy suffered as a result of Paroline's possession of two of her images. Her injury flowed from the collective, yet independent, conduct of thousands of individuals and her injury was indivisible. Thus, the district court found that the government did not establish the amount of incremental loss (if any) that Paroline's offense inflicted on Amy. Indeed, she was unaware he existed. The Fifth Circuit reversed, holding that proximate cause was not required and that each defendant who possessed the victim's images should be made liable for the entire loss from the trade of her images even though many other offenders also played a role.

The Court disagreed with both the district court and the Fifth Circuit. The five-justice majority, led by Justice Kennedy, adopted a middle ground allowing the victim to recover a portion of her damages from Paroline, prompting two dissents going in opposite directions (but with both claiming that the majority's result was untethered to the statute's text). There were a few things all of the Justices agreed on, however. First, the answer did not turn on whether proximate cause was required or not. All of the Justices appeared to agree that proximate cause – akin to foreseeability – was required, but was satisfied here as the types of damages that Amy suffered were exactly the kind one would anticipate from this type of crime. Second, the Justices seemed to agree that "causation in fact" was required. Finally, the Justices also agreed that Amy could not establish "but for" causation in the traditional sense as it would be impossible to calculate what, if any, part of her $3.4M in damages was caused by Paroline's possession of two images, as opposed to the possession by many thousands of others of the same images. That, however, was the end of their agreement.

The Kennedy-led majority framed the issue as determining the "proper standard of causation in fact." The Government and Amy advocated for an "aggregate causation theory," which would hold every wrongdoer jointly and severally liable for the victim's entire injury. As a treatise describes this theory: "[w]hen the conduct of two or more actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, and application of the but-for rule to them individually would absolve all of them, the conduct of each is a cause of the event." The majority rejected this test as a "kind of legal fiction" because where an offense is neither necessary nor sufficient to cause the injury, causation cannot stricktly be established. Nevertheless, the majority recognized that "tort law teaches that alternative and less demanding causal standards are necessary in certain circumstances to vindicate the law's purposes." Here, Congress clearly and emphatically sought to make restitution available to victims of child pornography offenses. And it would be contrary to Congress's purposes to deny Amy recovery merely because she had been victimized by thousands, while permitting recovery to those harmed by only a few. However, imposing Amy's entire injury on Paroline was not the answer. This was not a case, like gang rape, where a group of individuals collectively participates in a crime and aids and abets the entirety of the crime. Paroline did not aid and abet anyone else and each possessor of the images acted independently with little knowledge of the others (though this would not be the case for producers or distributors of the pornography). Imposing the entire loss on Paroline would not be proportional to his crime and might also violate the Eighth Amendment's Excessive Fines Clause. So, the majority developed its own approach, which embraced the aggregate causation approach in part. The cause of Amy's losses is "the trade in her image" and "Paroline is part of that cause." Thus, in such cases (where the harm is indivisible and it is impossible to trace a particular amount to a given offender), courts should award restitution "in an amount that comports with the defendant's relative role in the causal process that underlies the victim's general losses." The amount should not be "severe," but it also should not be a "token or nominal amount." The calculation, by nature, does not involve a "precise mathematical inquiry" and will require the court's "discretion." Factors district courts may consider include the amount of the victim's loss proximately caused by the trafficking, the number of past and future criminal defendants who are likely to be ordered to pay restitution, the estimate of current and future offenders (who likely won't ever be caught), whether the defendant reproduced or distributed the images, the number of images possessed and any other fact "relevant to defendant's relative cause role."

As you might imagine, this judicially-crafted standard, while logical and perhaps laudable, did not sit well with the dissenters. For the Chief, joined by Justices Scalia and Thomas, the issue largely turned on the section 3664(e)'s requirement that the Government prove "the amount of the loss sustained by a victim as a result of the offense." In the Chief's view, this requirement, which was part of the generic restitution system that Congress grafted onto the calculation of restitution under Section 2259, required traditional but-for causation. As even the Government and Amy essentially admitted that they could not meet this standard, the district court correctly ruled that restitution was unavailable here. While the dissenters agreed that a result denying Amy any recovery would be contrary to Congress's purpose of providing mandatory restitution for this type of crime, "[t]he statute as written allows no recovery; we ought to say so, and give Congress a chance to fix it." The majority's result, they lamented, would lead to entirely arbitrary and unprincipled restitution awards and would deprive criminal defendants of due process of law.

Justice Sotomayor penned a solo dissent in the other direction. In her view, the statute requires "mandatory" restitution of "the full amount" of Amy's losses. Sotomayor would adopt an aggregate causation approach, holding all offenders jointly and severally liable for the entirety of the victim's losses from the trafficking, an approach she argued was consistent with basic tort law principles. Recognizing that she had lost this argument, however, she concluded her dissent by praising the majority for "rejecting the possibility" that district courts could enter orders for "token or nominal amounts" and emphasizing that district courts should not give too much weight to the total number of offenders factor, since that could result in very small awards which would be unlikely to ever make the victim whole since few of the perpetrators would ever be caught or convicted.

Next, in White v. Woodall (12-294), the Court held 6-3 that the Sixth Circuit had been insufficiently deferential in its review of a Kentucky Supreme Court's decision rejecting Woodall's Fifth Amendment claim. The Court thus reversed the Sixth Circuit's grant of habeas relief. Woodall pleaded guilty to capital murder, kidnapping and first-degree rape. The trial court refused Woodall's request for an instruction that the jury should draw no adverse inference from Woodall's decision not to testify at the penalty phase. Woodall was sentenced to death, but the Sixth Circuit ultimately granted his habeas petition finding that a trio of Supreme Court decisions, Carter v. Kentucky (1981), Estelle v. Smith (1981), and Mitchell v. United States (1999), collectively held that no-adverse-inference instructions were required by the Fifth Amendment, and that the Fifth Amendment's protection against self-incrimination applied equally to the penalty phase as the guilt phase. The Court, led by Justice Scalia, reversed. AEPDA allows a writ of habeas corpus to be granted only where the state court's decision is contrary to or involves an "objectively unreasonable" application of Supreme Court precedent. Here, the majority found that none of the three cases were directly on point. Carter involved a no-adverse-inference instruction in the guilt phase. Estelle concerned the introduction of an involuntary, un-Mirandized pretrial psychiatric examination in the penalty phase. Mitchell disapproved of a trial judge's adverse inference from a defendant's silence at sentencing "with regard to factual determinations respecting the circumstances and details of the crime," but specifically declined to decide whether the defendant's silence could be used to draw an adverse inference with respect to other factors, such as remorse. Here, Woodall had admitted to all of the facts and circumstances of his crime when he pled guilty. Thus, the Kentucky Supreme Court was not objectively unreasonable when it reviewed the governing caselaw and concluded (rightly or wrongly) that the refusal to give a no-adverse-inference instruction under these circumstances did not violate Woodall's Fifth Amendment rights. For the majority, Woodall's claimed constitutional violation would require an extension of the existing precedent, not just an application to a new set of facts. And, the majority concluded (overruling any prior precedent to the contrary), a state court's refusal to extend the law is not a basis for habeas relief. The time for such a claim is on direct appeal.

Justice Breyer, joined by Ginsburg and Sotomayor, dissented. In their view, Carter established the Fifth Amendment right to a no-adverse-inference instruction. Estelle made clear that the Fifth Amendment right against self-incrimination applied equally in the penalty phase. Thus, these two cases alone made clear that the instruction was required—no extension of the law was involved. Mitchell merely stated that it wouldn't make an exception to the rule that the Fifth Amendment right applied in the penalty phase. Though Mitchell noted issues it was not addressing (as courts often do), that did not have the effect of injecting uncertainty where there was none.

Lastly, in Prado Navarette v. California (12-9490), the Court held 5-4 that the police had reasonable suspicion under the Fourth Amendment to stop a vehicle based on an anonymous 911 call under the facts of this case. Shortly after the 911 caller reported that a vehicle had run her off the road, the police located and stopped a truck matching the caller's description. As they approached the vehicle, the police smelled marijuana, and for good reason – there was 30 pounds of it in the truck bed. The defendants moved to suppress the evidence, arguing that the officers lacked reasonable suspicion of criminal activity to make the stop. That argument failed to persuade the lower courts, the California Court of Appeal, or a majority of the Supreme Court.

Justice Thomas wrote for the majority, joined by the Chief and Justices Kennedy, Breyer, and Alito. The Fourth Amendment permits brief investigative stops when a law enforcement officer has a "particularized and objective basis" for suspecting criminal activity. While an anonymous tip alone generally does not have sufficient indicia of reliability to provide such a basis, under certain circumstances – as here – it can. The caller was claiming eyewitness knowledge, the call came soon after the fact (the Court likened it to a "present sense impression" or "excited utterance," both deemed sufficiently trustworthy to be exceptions to the rule against hearsay), and the police located the truck travelling just about where one would expect based on the caller's description. Moreover, the caller used the 911 system, which had recording and tracing features that provide some safeguards against false reports. Most critically, the caller's report of being run off the road created reasonable suspicion of drunk driving sufficient to make the stop. The Court refused to credit the defendants' good driving while in view of the officers, as it is "hardly surprising that the appearance of a marked police car would inspire more careful driving for a time." And the Court refused to require officers to surveil the defendants for a longer period of time, "because allowing a drunk driver a second chance for dangerous conduct could have disastrous consequences."

Justice Scalia headed the dissent, joined by Ginsburg, Sotomayor, and Kagan (not a pairing you see every day). Scalia questioned each of the indicia of reliability identified by the Court, noting that anyone traveling on the highway would have been able to describe the truck and its location; that the call could hardly be described as a "present sense impression" or "excited utterance" if the caller had the time and presence of mind to observe and write down the license plate number, pull over, and call the police; and that there was no reason to think the caller was aware that 911 callers are readily identifiable. Scalia did not see how reasonable suspicion of one instance of irregular or even reckless driving could generate reasonable suspicion of ongoing drunk driving, particularly here, where the officers did not observe anything suspicious in the five minutes they followed the truck. In short, the dissenters saw a greater risk in unreliable, and possibly malicious, anonymous reports serving as the basis of unwarranted stops: "Drunken driving is a serious matter, but so is the loss of our freedoms to come and go as we please without police interference."

On a related note, one of three cases the Court added to its docket this week was:

Hein v. North Carolina (13-604), which asks "Whether a police officer's mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop."

The other two cert grants came in:

Zivotofsky v. Kerry (13-628), which will consider "Whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in ‘Israel' on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute ‘impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him.'"

Johnson v. United States (13-7120), which asks "Whether mere possession of a short-barreled shotgun should be treated as a violent felony under the armed career criminal act?"

With that, we'll take our leave for now, with promises to return when the Court issues its next batch of decisions, likely next week.

Kim, Jenny & Tadhg

Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400