Appellate Case: 21-6015 Document: 010110653530 Date Filed: 03/07/2022 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 7, 2022
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 21-6015
(D.C. No. 5:15-CR-00126-C-5)
CURTIS A. ANTHONY, (W.D. Okla.)
Defendant - Appellee.
---------------------
THE HUMAN TRAFFICKING
INSTITUTE,
Amicus Curiae.
_________________________________
ORDER
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ, MATHESON, PHILLIPS, McHUGH,
MORITZ, EID, and CARSON, Circuit Judges. *
_________________________________
On January 12, 2022, the panel’s opinion issued in this matter, and the court’s
judgment entered the same day. An active judge of the court then called a poll, sua
sponte, to consider en banc review of the panel decision. A majority of the non-recused
*
The Honorable Jerome A. Holmes, the Honorable Robert E. Bacharach, and the
Honorable Veronica S. Rossman are recused in this matter and did not participate in the
en banc poll.
Appellate Case: 21-6015 Document: 010110653530 Date Filed: 03/07/2022 Page: 2
active judges of the court voted not to rehear the case en banc, and as a result the poll
failed. See Fed. R. App. P. 35(a).
Judges Hartz, Carson and Eid voted to grant en banc rehearing. Judge Hartz has
prepared the attached written dissent from the denial of en banc rehearing, which is
joined by Judge Eid. Judges Matheson and Phillips have prepared the attached written
concurrence in the denial of en banc rehearing.
Entered for the Court,
CHRISTOPHER M. WOLPERT, Clerk
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21-6015, United States v. Anthony
HARTZ, J., Circuit Judge, joined by EID, Circuit Judge, dissenting.
I respectfully dissent from the denial of en banc rehearing. Defendant Curtis
Anthony was convicted of child-sex trafficking and conspiracy to commit child-sex
trafficking. He was one of a number of men who sexually abused R.W. As a result of that
abuse, R.W. will need extensive psychological treatment, estimated by one witness as
costing more than $800,000. But under the law applied by this court, Mr. Anthony could
not be required to pay restitution to R.W. for any of this treatment unless the government
could prove that his sexual abuse was the but-for cause of some identifiable portion of the
treatment. This result is both very unfortunate and contrary to the teachings of Supreme
Court precedent, which has recognized that the restitution statute does not require but-for
causation in similar circumstances.
In Paroline v. United States, 572 U.S. 434 (2014), the Supreme Court decided how
a district court should determine restitution for psychological injury when a victim of
child pornography is viewed by a multitude of offenders. Apparently everyone involved
in the case assumed that one could not assign specific psychological-treatment costs to
specific views of the child pornography by specific offenders, so the Supreme Court in
effect treated the victim’s psychological injury as an indivisible injury (that is, an injury
that cannot be divided by cause, with each part of the injury having a separate cause). It
then held that the district court could order restitution in essentially the same manner as
juries commonly apportion damages for indivisible injuries in civil cases, see, e.g.,
Restatement (Third) of Torts: Apportionment of Liability § 8 (1999) (the Restatement),
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except that intentional tortfeasors are not always jointly and severally liable for
restitution. There was debate within the Court on whether the language of the restitution
statute permitted such apportionment or instead always required proof of but-for
causation of specific injuries; but that issue is now resolved.
This case presents quite similar circumstances. The victim experienced severe
psychological trauma caused by sexual assaults by numerous perpetrators. Mr. Anthony
was one of the perpetrators. But this court holds that he cannot be required to pay any
restitution for psychological treatment because the prosecution did not prove what
particular psychological treatment was caused by what perpetrator. The restitution statute,
says the panel opinion, requires a showing that Mr. Anthony was a but-for cause of
particular treatment and damages.
In the view of the panel, a but-for “showing should be attainable in many instances
and likely could have been made here,” thereby distinguishing Paroline. United States v.
Anthony, 22 F.4th 943, 946 (2022). When that showing cannot be made, too bad. It was
apparently the panel’s view that a restitution award to R.W. was precluded only because
of the incompetence of the prosecution. To be sure, the prosecution has made a serious
error in this case in not understanding the meaning of but-for causation. It has argued that
it proved but-for causation through the testimony of an expert who opined that R.W.
would have needed just as much psychological therapy even if the only sexual abuse she
had suffered was that from Mr. Anthony. As the panel opinion points out, however, that
amounts to showing that Mr. Anthony’s crime was a sufficient cause of her injury, not a
showing that his crime was a necessary (but-for) cause.
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But the prosecution’s error on that score is not the real problem in the denial of
restitution. I fail to understand the confidence of the panel in thinking that the prosecution
can usually come up with an expert who can convince the sentencing judge that a
particular component of the psychotherapy needed by a victim of multiple assaults would
not have been necessary but for a particular assault. I would think that such proof would
be rare indeed. Psychologists may have great success in helping people deal with
psychological problems. But that does not mean that they have sufficient knowledge of
the brain to say that a victim would not need a particular drug or a particular therapy or
the last few weeks of a particular therapy if the defendant had not committed a particular
one of many assaults upon the victim. I doubt that I am unique as a judge in my
skepticism that any psychologist has the expertise to find but-for cause in cases like this.
What if such a judge was the sentencing judge? Would the judge have to decide between
believing the “expert” or denying restitution? (The common-law rule is that the party
alleging that the damages are divisible has the burden to prove divisibility. See
Restatement § 26 cmt. h.) I think it unacceptable to put a judge to that choice.
It is my hope that the Supreme Court will have an opportunity to clarify the law in
the area of restitution for psychological injury and permit judges to impose restitution
even when the judge believes the psychological damages cannot be divided by cause.
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21-6015, United States v. Anthony
MATHESON and PHILLIPS, Circuit Judges, concurring in denial of en banc review.
This court voted correctly to deny en banc review. We write separately to note the
unusual procedural history of this case. Two panel opinions are relevant: United States
v. Anthony, 942 F.3d 955 (10th Cir. 2019) (“Anthony I”), and United States v. Anthony,
22 F.4th 943 (10th Cir. 2022) (“Anthony II”).
In Anthony I, the panel held that the restitution statute limits restitution to losses
directly and proximately caused by the defendant’s offenses. In so doing, we rejected the
government’s argument for a sufficient-causation standard and adopted a but-for
causation standard instead. No judge called for a poll, and we rejected the government’s
request for en banc rehearing. See Order, United States v. Anthony, No. 18-6047 (Feb.
25, 2020).
In Anthony II, we reviewed a straightforward application of Anthony I. We agreed
with Mr. Anthony and the district court that the government had failed to show but-for
causation. Instead, the government sought to prove Mr. Anthony’s offenses were a
sufficient cause for the victim’s losses—exactly what we rejected in Anthony I. The
government did not seek rehearing.
Despite this court’s denial of en banc rehearing in Anthony I, and despite the
government’s decision not to seek rehearing in Anthony II, Judge Hartz sua sponte called
for en banc review. In his dissent from the court’s denial of that request, Judge Hartz
appears to agree with our application of Anthony I in Anthony II. He therefore wishes for
reconsideration of Anthony I.
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Judge Hartz is concerned that Anthony I’s but-for causation standard makes it too
difficult for victims to recover restitution. 1 Anthony II fails to validate or shed light on
that concern because, on remand from Anthony I, the government and its expert did not
apply the but-for causation standard. For the reasons stated in Anthony I, we disagree
with Judge Hartz’s discussion of Paroline v. United States, 572 U.S. 434 (2014).
1
See Burrage v. United States, 571 U.S. 204, 216-17 (2014) (“We doubt that the
requirement of but-for causation . . . will prove a policy disaster. A cursory search of the
Federal Reporter reveals that but-for causation is not nearly the insuperable barrier the
Government makes it out to be.”).
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