Tenth Circuit Reverses Restitution Order

U.S. v. Anthony, 2019 WL 5655235, 18-6047, 5:15-CR-00126-C-5 (Oct. 31, 2019) (W. D. Okla. published). A jury convicted Anthony of child-sex trafficking and conspiracy to commit child-sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), (c) and 1594(c). The district court sentenced Anthony to the statutory mandatory-minimum 10 years of imprisonment and ordered that he pay restitution to the two child victims—R.W. and M.M—in the amount of $327,013.50 and $308,233.50, respectively. On appeal, Anthony contended these amounts exceeded the actual losses resulting from his two offenses of conviction. He raised two issues with the restitution order: (1) it impermissibly compensated for harms that R.W. suffered from an earlier, unrelated sex-trafficking criminal enterprise run by a different person; and (2) as to the conspiracy count, it compensated R.W.’s and M.M.’s harms beyond a smaller conspiracy proved at trial, which was a subset of the broader conspiracy charged. The Tenth Circuit agreed with Anthony on both issues, but disagreed he established plain error on the second issue. Thus, the Court affirmed the district court’s restitution order as covering the broader charged conspiracy, but vacated the order and remanded for a recalculation of losses to ensure that no restitution was awarded for harms that R.W. suffered during the earlier sex-trafficking offense. Anthony teaches two important concepts when measuring restitution in a case involving child sex-trafficking. First, under both the Mandatory Victims Restitution Act and the Trafficking Victims Protection Reauthorization Act, the defendant’s conduct must be the but-for cause and the proximate cause of the victim's harm. This is true notwithstanding Paroline, which interpreted a different Act. Second, the scope of the client's conspiracy is determinative: “restitution liability for a conspiracy with a non-fatal variance is measured by the scope of the smaller conspiracy proved at trial rather than the conspiracy charged in the indictment.”