CASES OF INTEREST

United States v. McElroy, No. 09-11810, 2009 WL 3807157 (11th Cir. Nov. 16, 2009).
Defendant was sentenced to 20 years in prison following his conviction on two counts of receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). He challenged his sentence on numerous grounds, including, inter alia, that the government’s introduction of nine victim impact statements was improper because it had not been established that they were victims of his crime. Specifically, he argued that the children in the images found on his computers were not directly and proximately harmed by his conduct because they were victims of the creation of the pornography depicting them, not victims of his receipt and distribution of the photographs. The court rejected this argument and affirmed the sentence. In so doing, the court found that the children were victims within the meaning of the Crime Victims Rights Act, 18 U.S.C. § 3771 (CVRA), because “the distribution of photographs and films depicting sexual activity by juveniles is intrinsically related to the sexual abuse of children, and the harm to the child is exacerbated by this circulation.” Because the defendant’s criminal behavior caused the victims direct and proximate harm, they were victims within the meaning of the CVRA. As victims, they had a right to be heard at sentencing pursuant to 18 U.S.C. § 3771(a)(4).

United States v. Mitchell, No. 2:08CR125DAK, 2009 WL 3181938 (D. Utah Sept. 28, 2009) (Slip Copy).
Defendant filed a motion to exclude lay witness testimony from his upcoming competency hearing. One of the lay witnesses scheduled to testify was the victim of defendant’s crime. At a hearing regarding the victim’s testimony, defendant argued, inter alia, that the victim’s lay observations of defendant were not relevant to the competency question, and that the victim’s opinion evidence would be more prejudicial than probative. Upon analysis, the court found no basis for concluding that the victim’s testimony should be excluded on the grounds that its probative value is outweighed by potential prejudice or considerations of undue delay, waste of time, or needless presentation of cumulative evidence, and the court held that the victim’s testimony was relevant and admissible. In so holding, the court noted that “as the victim in this case, the court may have more latitude in allowing [the victim] to testify under the Crime Victims' Rights Act [CVRA].” The court observed that the CVRA provides victims the right “to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing or any parole proceeding,” and offered that while the CVRA does not grant an affirmative right to be heard at a competency hearing:

This exclusion may have been a recognition that the victim’s testimony would usually be allowed as relevant in these types of evidentiary hearings whereas it may be excluded from more procedural hearings. Or it may be an acknowledgment that the admission of testimony at such hearings would be governed more appropriately by the rules of evidence. In any event, while the Act does not grant an affirmative right to be heard at a competency hearing, the Act's intent is to provide a victim with appropriate access to the proceedings and it dictates that the victim has a right to be "treated with fairness."

The court denied defendant’s motion, and, having found the victim’s testimony relevant and admissible under the Federal Rules of Evidence, did not find it necessary to determine whether a victim should be allowed to testify at competency hearings generally under the CVRA.

Abromats v. Wood, Nos. S-08-0195, S-09-0196, 2009 WL 2517175 (Wyo. Aug. 19, 2009).
Defendant, charged with various crimes related to a traffic accident, attempted in the course of plea negotiations to condition payment of restitution on the accident victim’s release of civil liability. After the prosecutor agreed to this condition, Crisis and Referral Emergency Services (C.A.R.E.S), a victims’ services organization, informed the victims that defendant was taking action in the criminal case to impede their rights in future civil litigation. The victims then submitted an impact statement to the prosecutor through C.A.R.E.S., in which they clarified that they had not agreed to release defendant from civil liability. Defendant and her husband subsequently sued the victims, arguing that two statements in the victim impact statement were libelous. The victims moved for summary judgment, which the district court granted. Defendant and her husband, as plaintiffs in the civil action, appealed the grant of summary judgment. The victims cross-appealed, requesting that the court (1) uphold the dismissal of plaintiffs’ claims; and (2) find that (a) neither of the statements were libel per se, and (b) their statements were protected by the doctrine of absolute immunity, as witnesses in a judicial proceeding. The appellate court affirmed the lower court’s decision, and agreed with the victims that the doctrine of absolute immunity applied. Specifically, the court held that a crime victim’s statement to a victims’ services provider for submission to the court, which is not published to anyone else for any other purpose, cannot support a claim for libel because such a victim has absolute immunity when making statements as a witness in a judicial proceeding. In reaching this decision, the court stated: “The victim of a crime is an integral part of many criminal investigations and we can think of few participants in the judicial process more in need of protection. In addition, a court is required to seek information about restitution to victims under Wyoming law and the court and the prosecutor are required to communicate with the victim about that and other matters. . . . It is vital that victims feel free to speak openly during that process.”

United States v. Clark, No. 08-1808, 2009 WL 1931172 (3d Cir. July 7, 2009).
Defendant pled guilty to receiving and distributing child pornography. The National Center for Missing and Exploited Children identified two of the minors in the pornographic images. The mother of one child, and the other child and her parents submitted victim impact statements (VIS) in defendant’s case for sentencing purposes. The names of the victims and their families were redacted from the statements. Defendant appealed his sentence, arguing that the district court violated his due process rights by including the victim impact statements because they were “unsubstantiated, unrelated, irrelevant and unreliable” hearsay. Defendant also objected to the statements because they were not specifically written with reference to his sentencing.

The circuit court rejected defendant’s arguments. The court reasoned that the minors were identified as subjects in the pornographic material in defendant’s possession, and as such were victims of the crime. As victims of defendant’s crime, the Crime Victims’ Rights Act (CVRA) provides victims the right to be reasonably heard in all public proceedings involving sentencing. The court reasoned that federal law does not require child pornography victims to write a new statement every time someone is sentenced for possessing a pornographic image of him or her. There also was no error in redacting the victims’ names from the statements, as the practice was consistent with CVRA’s right to be treated with fairness and with respect for the victim’s dignity and privacy (18 U.S.C. § 3771(a)(8)). Finally, the circuit court held that the VIS’s were not inadmissible hearsay, because the confrontation clause does not bar the inclusion of the statements in the context of sentencing proceedings, and the federal rules permit the introduction of relevant information provided it has a sufficient indicia of reliability to support its probable accuracy. The court reasoned that the victims were identified by Child Victim Identification Program as subjects in the pornographic material and thus the statements “easily meet this standard” of reliability.

United States v. Pearson, No. 07-0142-cr, 2009 WL 1886055 (2d Cir. July 2, 2009).
Defendant pled guilty to multiple counts of producing, transporting, receiving, and possessing child pornography. The indictment specifically alleged that defendant produced pornographic material using two identified minor females. At sentencing, an expert witness testified that the girls had a number of mental health issues that would require treatment and services over their lifetimes. The expert estimated the number and cost of periodic psychiatric evaluations, regimen of medications, personal counseling, and group counseling over each girl’s life expectancy. The expert estimated future medical care expenses of $2,002,732 and $921,976 respectively. The district court, without explanation, found that these amounts did not reliably predict the victims’ future losses and ordered restitution for $974,902, a substantially lower amount.

In reviewing the district court’s final restitution order, the United States Court of Appeals for the Second Circuit held that mandatory restitution under Sexual Exploitation and Other Abuse of Children, 18 U.S.C. § 2259, authorized compensation for future counseling expenses. In reaching this holding, the court adopted the analysis of three other circuits that have considered the statute’s language and found that the section provided restitution for future medical expenses. While the Second Circuit agreed that the district court properly included future medical expenses in the restitution order, the court held that it could not determine whether the district court’s final order was a reasonable estimate of the cost of future counseling, because the district court had not provided an explanation for reaching the lower amount. The Second Circuit, declining to offer a view on the reasonableness of the restitution amount, vacated the order and remanded the case to secure a more thorough explanation from the district court of the basis for its restitution determination.

Dist. Attorney’s Office for the Third Jud. Dist. v. Osborne, 129 S. Ct. 2308 (June 18, 2009).
Years following his conviction for sexual assault and other crimes, respondent sought to test certain DNA materials through a 42 U.S.C. § 1983 action, in which the victim has no independent rights. NCVLI joined the individual victim as amicus curiae in the United States Supreme Court, arguing that a convicted offender should not be permitted to circumvent victims’ rights by using a § 1983 action, instead of a habeas petition, to seek access to evidence post-conviction.

The Supreme Court recently issued its opinion in this case. Without resolving the issue of whether respondent’s suit was properly raised as a § 1983 action or whether he should have pursued the evidence through a writ of habeas corpus, the Court rejected his claim, and held that there is no federal substantive due process right to access DNA evidence post-conviction. Justice Roberts, delivering the opinion of the court, reasoned that the convicted have only limited liberty interest and the Brady right of pretrial discovery does not apply in this situation. Roberts noted that state legislatures are responsible for deciding post-conviction evidentiary procedures, and that respondent’s § 1983 suit was an attempt to sidestep the state process. Roberts cautioned that creating a constitutional right of access to DNA evidence post-conviction would burden the federal courts and raise too many questions that are best left to the states to answer. In his concurrence, Justice Alito stated that he would have held that respondent’s claim should have been brought in habeas. Underlying both the majority and concurring opinion was the theme of finality, federalism, and comity.

Justice Stevens, in one of the dissenting opinions, concluded that there is a constitutional right to access DNA evidence post-conviction. In reaching this conclusion, he stated that a state’s arbitrary refusal to allow a convict access DNA evidence violates the basic principles of due process. Stevens further noted that crime victims, law enforcement, and society in general share a strong interest in identifying the actual perpetrators of crime and this interest overcomes the state’s interest in finality per se.

Parkhurst v. Tabor, No. 08-2610, 2009 WL 1794691 (8th Cir. June 25, 2009).
The Parkhursts, adoptive father and biological mother of H.P., a minor child, brought a § 1983 action on behalf of their daughter against two Arkansas state prosecutors, and Sebastian County, Arkansas. The Parkhursts alleged that H.P.’s right to equal protection under the Fourteenth Amendment had been violated by an office policy of avoiding the prosecution of incestual sexual assault cases, and, in particular, that the prosecutors’ decision to forego prosecution of H.P.’s biological father for the felony sexual assault of his daughter amounted to discrimination against H.P. as a member of a disfavored class, defined by the Parkhursts as victims of incestuous sexual abuse. The Parkhursts sought damages, an injunction requiring the reinstatement of the charges, and a declaratory judgment that the challenged prosecutorial policy violated the equal protection clause by failing to provide to victims of incest the same protection offered to other victims of sexual assault. The prosecutors and county filed a motion to dismiss for failure to state a claim, which the trial court granted. The court explained that prosecutorial conduct may only be subjected to such review by those with a constitutional right to the nondiscriminatory prosecution of crime, and that such a right rests with defendants subjected to discriminatory prosecution but does not accrue to the victims of crime. The Parkhursts appealed, arguing that the Fourteenth Amendment guarantees to crime victims the nondiscriminatory prosecution of crime. The Eighth Circuit of the United States Court of Appeals affirmed. In reaching its decision, the court noted that the United States Supreme Court has consistently held that “a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” The court held that because the Parkhursts were “neither prosecuted nor threatened with prosecution,” they had not suffered injury in fact, as defined by the Supreme Court, and thus lacked standing to bring their claim against the prosecutors and the county.

State v. Lane, Nos. 20070878, 20061126, 2009 WL 1635363 (Utah June 12, 2009).
Defendant killed two brothers, Dan and John Hays, when the car he was driving collided head on into their vehicle. The state charged defendant with two counts of misdemeanor negligent homicide, among others. Peggy and Patricia Hays, the brothers’ wives, and victims under Utah’s Constitution and the Rights of Crime Victims Act, informed the prosecutor they wished to exercise their rights to be present, to address the court at the plea and sentencing hearing, and to request restitution. Despite the victims’ assertion of their rights, a plea hearing was held without notification to the victims. The court accepted defendant’s guilty plea and sentenced him to a plea in abeyance for a period of twelve months, awarding no restitution to the victims. When the victims learned of the plea agreement, they filed a motion in the trial court to set aside the plea. The court denied the motion but held the plea in abeyance while the victims appealed its decision. During this time, defendant moved to dismiss the plea in abeyance with prejudice based on Utah Code prohibiting a misdemeanor plea to be held in abeyance longer than 18 months. The court granted the motion and dismissed the case with prejudice. The victims filed a second appeal challenging the dismissal. The appellate court consolidated the appeals and certified the case to the Utah Supreme Court.

The Utah Supreme Court, answering the threshold question of whether a victim can independently appeal from a dismissal of defendant’ plea in abeyance, held that the victims lacked standing and dismissed the appeal. The Court reasoned that since neither the defendant or the state appealed the dismissal, the trial court’s order was final and the case was moot. The Court explained that a case is deemed moot when the requested relief cannot affect the rights of the litigants. The Court went on to note that even if the case was not moot, the Utah Rights of Crime Victims Act and the Victims’ Rights Amendment to the Utah Constitution expressly prohibit a victim from appealing any criminal judgment, which includes the dismissal of defendant’s plea in abeyance. In dismissing the appeal, the Court stated, “We hope and expect that the trial courts will continue to be vigilant in their efforts to recognize crime victims’ constitutional rights and ensure those rights are protected and upheld in fashion during the trial process.”

In re Local # 46 Metallic Lathers Union and Reinforcing Iron Workers and Its Associated Benefit and Other Funds, No. 09-2113-op, 2009 WL 1587278 (2d Cir. June 9, 2009).
Local # 46 Metallic Lathers Union and Reinforcing Iron Workers and its associated benefit and other funds (Local 46 or petitioner), filed a petition for writ of mandamus in the Second Circuit challenging the district court’s determination that it was not a crime victim and therefore not entitled to restitution. The defendant pled guilty to an indictment charging him with one count of conspiracy to launder money based on his actions as president of a company that installed rebar on union job-sites. Local 46 filed a motion to compel restitution before the federal magistrate judge, arguing that defendant’s plea entitled it to restitution pursuant to the Crime Victims’ Rights Act of 2004 (CVRA), 18 U.S.C. § 3771, and the Mandatory Victims Restitution Act of 1996 (MVRA, 18 U.S.C. §§ 3663A-64). Local 46 based its entitlement to restitution on the fact that defendant’s money laundering scheme included off-the-books cash payments to employees that had the effect of avoiding significant benefit contributions to the unions required by the collective bargaining agreements entered into between Local 46 and defendant. The federal magistrate denied the motion to compel restitution and the district court adopted the magistrate judge’s report and recommendation in its entirety, including its finding that Local 46 was not a crime victim under the CVRA or MVRA because Local 46 had not been directly and proximately harmed by defendant’s money laundering scheme. The district court found that because the offense was complete before defendant made the cash payments to his employees, any harm to Local 46 was not sufficiently causally connected to the money laundering conspiracy.

On its mandamus petition to the Second Circuit, Local 46 argued that there was a sufficient causal connection because defendant’s cash payments to his employees were the financial transactions that completed the money laundering conspiracy. The Second Circuit denied the petition. Applying the definition of victim under the MVRA, the court held that the district court did not abuse its discretion in concluding that Local 46 was not directly and proximately harmed by the offense as the crime was complete before defendant made the cash payments to employees. In reaching this conclusion, the court noted that “petitioner has argued this case under the provision of the MVRA concerning offenses that involve a conspiracy,” and therefore the court was not required to address whether the outcome of the case would be different if analyzed under the CVRA’s definition of crime victim.

A copy of this decision can be found on Westlaw at: 2009 WL 1587278 or on Lexis at: 2009 U.S. App. LEXIS 12309

In re Rendón Galvis,No. 09-1576-op., 2009 WL 1110785 (2d Cir. April 27, 2009).
The mother of a man murdered by paramilitaries in Medell'n, Columbia, filed a petition for a writ of mandamus in the Second Circuit challenging the lower court’s denial of her status as a crime victim under the Crime Victims’ Rights Act of 2004 (CVRA), 18 U.S.C. § 3771. Defendant had pled guilty in Colombian criminal court to charges of conspiring to commit the aggravated homicide and forced disappearance of the petitioner’s son, among others. Although defendant had not perpetrated the crimes directly, he had confessed to being responsible in his capacity as a leader of the paramilitary organization. Defendant was later extradited to the United States where he was charged with and pled guilty to conspiracy to import and to distribute cocaine. The mother filed a motion in the district court pursuant to the CVRA, the Victim and Witness Protection Act, and the Mandatory Victims’ Restitution Act, seeking to enforce her rights as a crime victim to confer with the government, to be heard before sentencing, and to receive restitution. She argued that defendant’s participation in the charged conspiracy was the actual and proximate cause of her son's death because the paramilitary organization had targeted the community her son lived in for its importance as a drug-trafficking corridor, using disappearances and executions to gain control of the area, and because the paramilitary organization had financed its terrorist activities with drug proceeds. The mother also argued that a broad interpretation of the definition of “crime victim” under the CVRA is consistent with the CVRA’s underlying intent, and as such includes the victims of any acts related to the charged conspiracy, regardless of whether the acts were described in the indictment or plea agreement, and also includes the victims of acts of defendant’s co-conspirators. The government and defendant opposed the mother’s motion seeking crime victim status; the government objected on the ground that the mother was outside the scope of the definition of victim as intended by Congress. The district court denied the mother’s motion, concluding that she did not meet the definition of victim under any of the statutes because she failed to show that her son’s murder was causally linked to the drug conspiracy. The mother then filed a petition for writ of mandamus in the Second Circuit arguing that the district court abused its discretion by applying an elements-of-the-offense-based approach to analyzing whether she is a crime victim. The Second Circuit denied the petition, holding that “while the evidence may suggest some linkages” between the murder of petitioner’s son and the drug conspiracy, there was no “clear error in the district court’s conclusion that [petitioner] ultimately failed to show the requisite causal connection between the two” as required under the CVRA.

In re Antrobus,No. 09-4024, 2009 WL 1068789 (10th Cir. Apr. 22, 2009).
Vanessa Quinn was one of six people (including the killer, Sulejman Talovic) killed in the Trolley Square Shopping Center rampage in Salt Lake City in 2006. One of the guns Talovic used in his rampage was purchased from Mackenzie Hunter. Hunter sold the gun to Talovic when he was a juvenile, despite alleged statements made by Talovic that he may use the gun to rob a bank. Hunter pled guilty to selling the gun to a juvenile. Before he was sentenced, the Antrobuses, Ms. Quinn’s parents, filed a motion seeking status as victims so that they could assert rights under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. The district court denied the motion on the grounds that the Antrobuses failed to establish proximate cause between the sale of the gun and their daughter’s death. After sentencing, the Antrobuses uncovered evidence that established that Hunter “knew” that Talovic said he wanted to use the gun to rob a bank. Based on this statement, they moved the district court for a new evidentiary hearing. The district court denied the motion and the Antrobuses petitioned for a writ of mandamus. The appellate court denied the petition, noting that the “law of the case doctrine” barred reopening a question already decided at an earlier stage of the same litigation except in narrow and exceptional circumstances. While the discovery of new evidence can be such a circumstance, it must have been previously unavailable or so “substantially different” from what was previously presented that it creates a substantial doubt about the original decision. The court found that the evidence was not previously unavailable because the Antrobuses did not demonstrate that they were unable to present similar evidence at the prior hearing. The court also found that the evidence was not substantially different because the district court’s prior decision rested on the assumption that Hunter “surmised” that Talovic might use the gun to rob a bank. Although the difference between “surmising” and “knowing” may be meaningful in a proximate cause analysis, the court found it was not meaningful under the higher standard required for reopening sentencing. The court concluded that because the CVRA is relatively new, the criminal justice system is still struggling with its scope and meaning. It continued: “District courts and prosecutors must become sensitive to Congress’s new demand that victims have a seat at the table. At the same time, all litigants have to be aware of the constraints associated with efforts to relitigate issues repeatedly, and the scope of our review under law.”

Flores-Figueroa v. United States, No. 08-108, 2009 WL 1174852 (May 4, 2009).
The United States Supreme Court, in a decision by Justice Breyer for six of the Justices, decided a Circuit split in the interpretation of the federal statute forbidding aggravated identity theft. 18 U.S.C. § 1028A(a)(1) imposes a 2-year prison term upon individuals convicted of certain crimes if, during the commission of those crimes, the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” (emphasis added). The issue before the Court was whether the statute required that the government show that defendant knew that the identification actually belonged to another person, or whether the government need only show that defendant knew that the identification was unlawfully obtained. The Court determined that the government must show that defendant knew the identification belonged to another person. The Court relied almost exclusively on matters of syntax and grammar in reaching this conclusion. Citing colloquial examples and Supreme Court case law, the Court found that “it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently listed elements of the crime” because “where a transitive verb has an object, listeners in most contexts assume that an adverb . . . that modifies the transitive verb tells the listener how the subject performed the entire action . . . .” Although the Court noted that the legislative history was inconclusive as to what Congress intended, and that the government may have greater difficulty in proving that the defendant knew the identity was false, it did not find this dispositive. Justice Scalia, joined by Justice Thomas, filed an opinion concurring in part and concurring in the judgment. Justice Alito filed a separate opinion also concurring in part and concurring in the judgment.

United States v. Atlantic States Cast Iron Pipe Co., No. 03-852(MLC), 2009 WL 792046 (D.N.J. Mar. 23, 2009) (slip op.)
Four employees of a cast iron pipe foundry were convicted of, inter alia, conspiracy and substantive offense charges related to their obstruction of proceedings conducted by the federal Occupational Safety and Health Administration (OSHA) that were related to the serious or fatal workplace injuries sustained by other foundry employees. On behalf of six such injured employees, the government moved under the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (CVRA), to set a sentencing date and afford the victims the right to allocute at defendants’ sentencing hearing. Although defendants did not oppose the request to set a sentencing date, they did oppose designating the injured employees as “victims” under the CVRA. In considering the government’s motion, the United States District Court for the District of New Jersey found that the scheduling component of the motion was moot because a sentencing date had since been set. To answer the question of whether the injured employees were “victims” for the purposes of the CVRA, the court engaged in a comprehensive review of the CVRA, Victim and Witness Protection Act (VWPA), and the Mandatory Victims Restitution Act (MVRA), as well as a thorough analysis of case law addressing statutory victim status under each of the three federal statutes. Ultimately, the court concluded that the injured employees were not statutory “victims” entitled to the right to speak at sentencing because the harm that the government argued was the “direct and proximate” result of defendants’ OSHA-related offenses was too factually attenuated. The court stated that its conclusion did not preclude “the possibility that in a rare factual setting, an obstruction or false statement offense involving OSHA could be found to have the requisite causal nexus to an injury in the workplace.” The court also found, in the alternative, that the record was not sufficiently developed on issues related to the “direct and proximate” causation requirements of the CVRA and VWPA, but that the evidentiary adjudication required to so develop the record would “unreasonably complicate and prolong the remaining proceedings in this criminal prosecution.” Finally, although the court found that the injured employees did not have rights as statutory “victims”, it recognized its discretion to allow them to give impact statements at sentencing under 18 U.S.C. § 3661, and stated that it would determine separately how it would exercise such discretion.

United States v. Agriprocessors, Inc., No. 08-CR-1324-LRR, 2009 WL 721715 (N.D. Iowa Mar. 18, 2009).
Defendants filed a pretrial motion for a change of venue, citing extensive, inflammatory, and adverse publicity resulting from an Immigration and Customs Enforcement raid at defendants' business. Defendants contended that in order to ensure a fair and impartial trial, the court should presume prejudice and transfer venue. The court denied the motion, finding that the publicity was not so extensive and inflammatory as to presume that an impartial jury could not be seated. Citing the Crime Victims' Rights Act, 18 U.S.C. § 3771(a)(8) (directing district courts to treat victims "with fairness"), the court noted that "a change of venue might also adversely affect the rights of victims to appear at court proceedings."

United States v. Okun, Crim. No. 3:08cr132, 2009 U.S. Dist. LEXIS 24401 (E.D. Vir. Mar. 24, 2009).
The government moved in limine to permit up to 577 victims to be present at trial (eight of whom the government intended to call as witnesses at trial) under the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771 et seq. The defendant opposed the motion on three grounds, all of which the court rejected. First, the defendant argued that the victim/witnesses do not qualify as victims under the CVRA because the defendant had not yet been proven guilty. The court found this argument to be “simply incorrect” because it would “eviscerate the rights given under the CVRA to victims in any pre-conviction proceeding.” Second, the defendant argued that the victim/witnesses should be excluded under Federal Rule of Evidence 615, which allows the court to exclude witnesses from the courtroom at the request of a party. The court disagreed, noting that Rule 615 provides an exception if the potential witness is “authorized by statute to be present.” The court noted that “[t]he CVRA provides just such an authorization for victims of the crime being tried” unless the defense makes a showing that the victim/witness’s testimony would be “materially altered.” The defense made no such showing. Third, the defendant argued that due to the number of victims, permitting them all to attend trial would be impractical. The court rejected this argument as well, finding it premature because there was no evidence that an unmanageable number of victims would attend the trial. The court went on to state that alternative means to attending trial – such as arranging for a closed-circuit television broadcast, webcast, or audio broadcast of the trial – could be considered, but that these alternate means “would not be . . . to exclude victim/witnesses based on the large number of victims. This suggestion treats victims as a fungible commodity with class rights instead of individuals with personal rights; this reading of the statute is squarely at odds with the need to ‘respect[] the victim[s’] dignity and privacy.’ 18 U.S.C. § 3771(a)(8).”

In re Vicki Zito, No. 09-70554 (9th Cir. Feb. 26, 2009) (order).
The mother of a minor victim in a sex trafficking prosecution filed a motion on behalf of her daughter with the district court requesting that it stay an order permitting defendant to issue a subpoena for the victim’s juvenile probation and court records. The victim argued in her motion that the stay was necessary to permit her adequate time to file a petition for writ of mandamus challenging the subpoena of the records as a violation of the minor victim’s rights under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. The District Court denied the victim’s request as moot, and the victim filed a petition for a writ of mandamus pursuant to the CVRA. In her petition, the victim argued that the subpoena sought the minor victim’s entire juvenile record—a record that arguably contained counseling, medical, and school records—and that the writ should be issued to protect her right to be treated with fairness and with respect for her dignity and privacy. Although the Ninth Circuit denied the petition, finding that the production of the subpoenaed materials to the district court for in camera review did not create a “cognizable harm” to the minor victim, the denial was without prejudice to the filing of a new petition if the district court determined that the documents would be shared with the real parties in interest. The Ninth Circuit further directed the district court to stay any turnover of subpoenaed materials to allow the victim “an opportunity to seek relief in this court.”

Keli Luther represents the minor victim’s mother in these proceedings.

United States v. Keifer, No. 2:08-CR-162, 2009 WL 414472 (S.D. Ohio Feb 18, 2009).
A complaint was filed against the defendant in a fraud case and a plea agreement was reached. At the government’s request, the information and plea agreement were sealed by the United States District Court for the Southern District of Ohio. Subsequently, the victim, Mr. Simons filed a motion to unseal the criminal case so that he may assert his rights under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. 3771, including the right to reasonable and timely notice of any public court proceeding, the right to reasonably be heard at any public court proceeding, and the right to restitution. The defendant argued that Mr. Simons was not a victim and did not have standing to bring the motion because he was not named in the pretrial sentencing report. Mr. Simons asserted that he was a victim and did have standing to appeal. He pointed to the fact that defendant defrauded him of $36,730 and stole his identity incurring $428,524 in charges under Mr. Simons’ name. The district court held that Mr. Simons was a victim, because the defendant pled guilty to fraud and related activity in connection with access devices, making and possessing counterfeited securities, and bank fraud, and Mr. Simons appeared to have been directly and proximately harmed as a result of defendant’s actions. The court held that it was not significant that Mr. Simons was not named in the PSR as a victim.

The court then performed a First Amendment analysis on the sealing of the case. The court noted that the CVRA applies to “public court proceedings.” Thus, if the proceeding were left sealed, the victim’s rights under the CVRA would not apply. Ultimately, however, the court concluded that sealing the entire case was not narrowly tailored to protect a compelling interest; i.e. protecting defendant from future harm. As such, the court unsealed the case except for a few documents that were irrelevant to Mr. Simons’ claim for restitution and that contained sensitive information. The court held that because the case was now public, Mr. Simons was entitled to all rights under the CVRA, including the right of access to the case, the right to be notified of all future court proceedings, the right not to be excluded from any future court proceedings, and the right to be reasonably heard at any future proceeding involving sentencing.

United States v. W.R. Grace, No. CR 05-07-M-DWM, 2009 WL 368240 (D. Mont. Feb. 13, 2009) and In re Parker, Nos. 09-70529, 09-70533 (9th Cir. Feb. 27, 2009) (order).
The government and victim-witnesses in United States v. W.R. Grace, No. CR 05-07-M-DWM, moved to recognize the victim-witnesses as “crime victims” under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, and to accord them their rights under CVRA, particularly the right to attend the criminal trial. Defendants in W.R. Grace are charged with, inter alia, violating the Clean Air Act’s knowing endangerment provision, which bars the knowing and dangerous release of a hazardous pollutant into the air where the party responsible for releasing the pollutant knows that its release places another person in imminent danger of death or serious bodily injury. Specifically, the indictment alleges that defendants violated the statute by placing the victim-witnesses in imminent danger of death or seriously bodily injury through the release of asbestos on their residence. Nonetheless, the United States District Court for the District of Montana denied the motions, reasoning that the movants were not “crime victims” because the CVRA defines a crime victim as a “person directly and proximately harmed as a result of the commission of a federal offense”, and defendants were only charged with placing the movants in imminent danger of harm. Based on this reasoning, the district court held that it could exclude the victim-witnesses from the courtroom during trial without adhering to Section 3771(a)(3) of the CVRA, which bars such exclusion “unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.”

After the district court denied their motions, the victims and the government petitioned the United States Court of Appeals for the Ninth Circuit for a writ of mandamus. The Ninth Circuit granted the mandamus petitions upon finding that the district court erred when it based its denial of the government and victim-witnesses’ motions on a finding that the 34 victim-witnesses that the government identified as potential victims did not meet the definition of “crime victims” under the CVRA. The appellate court instructed the district court to vacate its order and to conduct further proceedings to make particularized findings with respect to each of the victim-witnesses as mandated by Section 3771(a)(3) of the CVRA.

Paul Cassell, Keli Luther, and Justin Starin represent two of the victim-witnesses in these proceedings.

United States v. Coxton, No. 3:05-cr-00339-FDW, 2009 WL 449192 (W.D. N.C. Feb. 24, 2009).
Defendant was charged with violations of federal drug and gun laws, which were related to the shooting and killing of the deceased. Subsequent to defendant’s conviction, the United States Probation Office filed a Draft Presentence Report and a Final Presentence Report, both under seal. The victims, relatives of the deceased, moved for an order providing them access to certain portions of the presentence report, prior to sentencing, arguing that such access was required in order to fulfill their rights to be reasonably heard at sentencing and to full and timely restitution under the Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771.

Noting the strong policy against disclosure of PSRs, the court rejected the victims’ motion. The court stated that no court addressing the issue had required disclosure, and that nothing in the CVRA or its legislative history requires the disclosure of the PSR. The court also held that the victims’ right to restitution was not compromised by prohibiting disclosure because both the government and the court had access to the restitution section of the PSR.

In summarizing its position, the court noted that scholarly commentary, including that of Judge Paul Cassell, argued in favor of a victim’s right to access relevant portions of a PSR. The court further noted that Judge Cassell suggested that the Federal Rules of Criminal Procedure be amended in order to provide for a victim’s right to access portions of a PSR. Although the court said it was “sympathetic to this viewpoint, and to the Victims in this case,” it concluded that “the current state of the law, absent the change Judge Cassell suggests, simply does not support the disclosures the Victims have requested.” Accordingly, the district court denied the victim.

In re: Nathan Simons, No. 09-3109, 2009 WL 1054341 (6th Cir. Feb. 5, 2009) (order).
In a sealed criminal case, the putative victim (victim) filed a motion to unseal the record, asserting that the court’s seal had prevented him from determining whether his rights were being violated under the Crime Victim’s Rights Act (CVRA) 18 U.S.C. § 3771. After three months had passed without a ruling from the court, the victim filed a petition for a writ of mandamus under the CVRA, asking for an order directing the district court to unseal the record and to ensure that the victim was afforded his rights under the CVRA. In responsive pleadings, the parties and the district judge argued that since there had been no ruling by the district court and no subsequent proceedings had taken place, the petition was premature and the petitioner had not been denied any rights under the CVRA. The United States also argued that because the district court had not denied the petitioner’s motion, the petition for writ of mandamus was not properly brought under the CVRA. The court of appeals disagreed, finding that since the CVRA requires the district court to take up and rule on a motion to assert CVRA rights “forthwith,” the three-month passage of time without a ruling by the district court could be “construed as an effective denial of rights under the CVRA,” and that such an “unexplained” passage of time without ruling was not in compliance with the CVRA. Noting the CVRA’s provision that victims be “treated with fairness and with respect for the victim’s dignity,” the court stated that “despite the lack of any substantive proceedings in the criminal action during this three-month period, the sealing of the record prevented the petitioner from determining whether his rights under the [CVRA] were being violated.” Concluding that the petitioner had demonstrated the right to a prompt ruling*, the court granted the petition, directing that the district court rule on the motion “no later than two weeks from the entry of this order.” In a dissenting opinion, Judge Clay noted that further delay in unsealing the file was “entirely inappropriate and contrary to the purposes of the Crime Victims’ Rights Act and the Mandatory Victims’ Restitution Act,” and stated that he would revise the order to provide for the petitioner’s motion to unseal to be “granted forthwith.”

*The 6th Circuit did not reach the issue of whether the CVRA petition for writ of mandamus should be reviewed using a mandamus standard or the traditional appeal standard because the petitioner satisfied both standards in this case.

State v. Slover, No. 2 CA-CR 2007-0379, 2009 WL 295027 (Ariz. Ct. App. Feb. 9, 2009).
Defendant, convicted of crimes including negligent homicide, appealed the trial court’s order of restitution which included payment of the victim’s wife’s attorney fees. Reviewing the role played by the wife’s counsel, the appellate court determined it was one of encouraging filing of charges, helping locate defendant, and ensuring proper preservation of evidence. The court characterized this role as one of “adjunct prosecutor,” and noted that the fees “did not flow directly from the defendant’s criminal conduct but rather arose from either the state’s inability to prosecute the case independently and competently or the wife’s mistrust that it would do so.” Because the factors leading to the fees were independent of defendant’s criminal conduct, the court held the fees to be consequential rather than direct damages, and therefore not recoverable as restitution under Arizona law. The court vacated that portion of the restitution order awarding the victim’s wife attorney fees. In doing so, the court stated that it was "not address[ing] whether such fees would be proper restitution items under other factual circumstances, such as when the victim hires an attorney to assert a concrete right under the Victims’ Bill of Rights.”

United States v. Robinson, No. 08-10309-MLW, 2009 U.S. Dist. LEXIS 3345 (D. Mass. Jan. 20, 2009).
The Globe Newspaper Company filed a pre-trial motion in district court asking the court to order the prosecution to disclose the name of the victim in an extortion prosecution. The court denied the motion, based on the fact that the government had not filed any documents in the case revealing the victim’s name. The court reasoned that the right of public access to court records and documents applies only to documents actually submitted to a court in the course of litigation. Since the government had not submitted any document, or otherwise notified the court of the victim’s identity in the case, there was no legal basis for granting the media’s motion and compelling the government to identify the victim. The court noted that disclosing the victim’s name was a matter left to prosecutorial discretion unless and until the victim’s identity interferes with the defendant’s rights or becomes relevant to the court’s decision making.*

In dicta, the court advised that if the victim testified, or his identity became relevant to the judicial process, the presumption of public access would apply and the Globe Newspaper Company could refile its motion. The court cautioned, however, that in a case of extortion, where the victim’s privacy interest is great, the court may find that the documents should be sealed because the interests favoring non-disclosure outweigh the right to access. The court cited United States v. Patkar, No. 06-00250, 2008 WL 233062 (D. Haw. Jan. 20, 2008), where the court relied heavily on the Crime Victims Right Act (CVRA) to deny public access to the victim’s information in an extortion case. In Patkar, the court relied on the CVRA’s mandate that victims have the right to be treated with fairness and with respect for the victim's dignity and privacy to prohibit the parties from disclosing documents produced in discovery that contained potentially embarrassing information about the victim. The Patkar court reasoned that in an extortion case unsealing documents would subject the victim to precisely the harm threatened by the defendant in the case.

* Practitioner’s note:

Even though not at issue in this case, the district court’s analysis may be relevant to a putitive crime victim where the government does not disclose the victim’s identity, even to the victim in the case. While this case stands for the proposition that whether to disclose a victim’s identity is left to prosecutorial discretion, it may be argued that once a potential victim files a motion in the court asking to be recognized as a victim under the CVRA, the court now has the authority to compel the prosecution to identify the victim as it is relevant to the court’s decision making.

United States v. Horsfall, 2008 WL 5263773 (11th Cir. Dec. 19, 2008).
Defendant appealed his conviction for receiving child pornography on two grounds related to the use of victim impact evidence at sentencing. First, defendant argued that the presentation of this evidence violated his plea agreement, a term of which prohibited the government from recommending to the court that defendant be given an upward departure under the Advisory Federal Sentencing Guidelines. The Eleventh Circuit rejected this argument on the following grounds: first, the government informed the district court that its purpose in presenting victim impact evidence was to support a sentence at the high-end of the applicable guideline range, not to recommend an upward departure; second, the presentation of this evidence fell within a term of the plea agreement authorizing the government to inform the court of all facts pertinent to sentencing, including relevant information regarding defendant and his background; and third, the Crime Victims’ Rights Act, 18 U.S.C. § 3771, obligated the government to ensure that the victims’ views were presented to the court at sentencing. The Eleventh Circuit similarly deemed defendant’s second argument, that the district court’s consideration of victim impact evidence violated his Eighth Amendment rights, to be without merit. The court found that defendant failed to establish that the law governing the admissibility of victim impact statements during the sentencing phase of a capital case applied to federal judge-based sentencing in non-capital child pornography prosecutions. Accordingly, the court affirmed defendant’s conviction.

In re Stewart, No. 08-16753, 2008 WL 5265344 (11th Cir. Dec. 19, 2008).
The Eleventh Circuit Court of Appeals issued a writ of mandamus ordering the district court to recognize the petitioners as victims in the criminal case of United States v. Coon and afford them the rights of victims under the federal Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771. The petitioners were home buyers that obtained mortgage loans from a bank where defendant was the executive vice president of the mortgage lending department. The petitioners were referred to the bank by a mortgage origination firm (Firm). The Firm charged the bank a one percent mortgage brokerage fee on the loans the bank closed, but the Firm’s president and defendant conspired to charge the petitioners a two percent fee and split the extra point themselves. The United States filed a one-count information against defendant alleging that he and the Firm’s president conspired to deprive the bank of honest services. The defendant entered a plea agreement which required him, in addition to forfeiting the proceeds of the crime to make restitution to the crime victims. At the plea hearing, petitioners appeared before the magistrate judge and asked to be heard as crime victims. The United States opposed petitioners’ request, arguing that only the bank was the victim of the offense charged in the information. Agreeing, the magistrate denied petitioners the right to be heard. On petitioners’ petition for a writ of mandamus the court of appeals concluded that the petitioners had suffered a financial loss and were victims of the crime charged. Significantly, the Court rejected the United States’ argument that petitioners were not victims because the bank, and not the loan borrowers, was listed in the information. The court analyzed this argument as “implicitly and mistakenly assum[ing] that any CVRA victim must be mentioned in the indictment or information.” The court noted that the CVRA does not limit the class of crime victims to those whose identity constitutes an element of the offense charged or who happen to be indentified in the charging document. The court stated that in defining a crime victim under the CVRA, a court must look to the harmful effects the offense has on the asserted victim. The court further noted that even where a particular person is not target of the crime, he may still be a crime victim for CVRA purposes if he has suffered harm as a result of the crime’s commission. Based on this analysis the court held petitioners suffered direct financial harm from the co-conspirators’ criminal conduct they are crime victims under the CVRA.

Patterson v. Mahoney, No. 1 CA-SA 08-0263, 2008 WL 5255322 (Ariz. Ct. App. Dec. 18, 2008).
The Arizona Court of Appeals vacated a trial court’s order excluding two women from their sister’s murder trial. The trial court based its order on Arizona’s rules of criminal procedure that permit any party to exclude named witnesses from the courtroom. The trial court held the women were not exempt from the rule, because they did not meet the definition of “victim” found in the rule, which limited “victim” to parents or children of a deceased victim. On the women’s petition for review, the court of appeals determined a conflict existed between the statutory and procedural definition of “victim.” The conflict arose when the Arizona Legislature’s 2005 amendment of the statutory definition of “victim” by removing the term “immediate family” and replacing it with a list of relations that included siblings, but the Arizona Supreme Court did not similarly amend the rule. The Court determined that the conflict involved a substantive matter because the definition determined who is entitled to crime victims’ rights and not merely a procedure for invoking or affording those rights. The Court reasoned that since the matter is substantive, under Arizona law the statutory definition controls and must be used when applying the rules of criminal procedure. Consequently, the Court held that the petitioners, as siblings, were victims with a constitutional right to be present at their sister’s murder trial.

State v. Williams, No. A-4616-04T4, 2008 N.J. Super. LEXIS 261 (N.J. Super. Ct. Dec. 12, 2008).
After concluding his trial testimony, an assault and robbery victim asked the court if he could remain in the courtroom for the duration of the trial. No objections were made, and the court granted the victim’s request. While present in the courtroom, the victim, who had been unable to identify his assailant by sight while on the stand, recognized defendant’s voice. Over defendant’s objection, the court granted the state’s subsequent motion to recall the victim to make an in-court voice identification of defendant. On appeal, defendant challenged this in-court voice identification. He argued, inter alia, that allowing the victim to remain in the courtroom after testifying violated his constitutional rights. In rejecting this argument, the appellate court stated that a criminal defendant has no federal constitutional right to exclude witnesses from the courtroom, while a crime victim does have a state constitutional right to present during trial. After highlighting the history, purpose, and scope of a victim’s right to be present under New Jersey’s Victims’ Rights Amendment, the court further noted that defendant cited no federal constitutional right that would trump the victim’s constitutional right to be present for the purposes of the Supremacy Clause.

Kelly v. California, Nos. 07-11073 and 07-11425, 2008 U.S. Lexis 8193 (Nov. 10, 2008).
On November 10, 2008, the United States Supreme Court denied certiorari in two capital cases seeking to challenge the admissibility of filmed victim impact evidence at sentencing. Justices Stevens and Breyer indicated that they would have heard both cases, and Justice Souter, who did not write separately, indicated that he would have heard one of the two. In his statement regarding the denial of the petitions, Justice Stevens stressed that the Court has not reviewed the use of such evidence since its 1991 decision in Payne v. Tennessee, 501 U.S. 808 (1991), and that “[i]n the years since Payne was decided, this Court has left state and federal courts unguided in their efforts to police the hazy boundaries between permissible victim impact evidence and its impermissible, ‘unduly prejudicial’ forms.” Justice Stevens went on to note that granting certiorari would allow “the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence.” Justice Breyer, who dissented from the denial of the petitions, agreed with Stevens that granting certiorari would allow the Court to elucidate the constitutional guidelines surrounding the use of victim impact evidence in capital cases. For Breyer, the question at the core of the certiorari petitions was whether the admission of a “particular film about the victim’s life” at such a proceeding goes beyond the bounds of due process. After viewing one of the films, Breyer observed that while it was “poignant, tasteful, artistic, and, above all, moving, . . . the film’s personal, emotional, and artistic attributes themselves create the legal problem.” He concluded his dissent by recognizing that given “the difficulty of drawing a line between what is, and is not, constitutionally admissible in this area,” the Court should have granted certiorari to guide the lower courts by example.

United States. v. Furguson, No. 3:06CR137, 2008 WL 4763238 (D.Conn. Oct. 31, 2008).
Defendants, convicted of securities fraud, opposed the government’s request for restitution to individual shareholders, arguing restitution was inappropriate under both the Mandatory Victims Rights Act (MVRA), 18 U.S.C. § 3663A(c)(3), and the Victim Witness Protection Act (VWPA), 18 U.S.C. § 3663(a)(1)(B)(2). In a hearing on the matter, the court noted that the Crime Victims’ Rights Act (CVRA) 18 U.S.C. § 3771(d)(2), specifies that when “the court finds that the number of crime victims makes it impracticable to accord all the crime victims [restitution], the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate or prolong the proceedings.” The court noted that the state had conceded that “[o]btaining the identity and number of victims from multiple, individual stock brokers would be an exceedingly time-consuming and costly process,” and observed that the MVRA instructs that an order of restitution is not mandatory if:

(A) the number of identifiable victims is so large as to make restitution impracticable; or (B) determining complex issues of fact related to the cause or amount of the victim's losses would complicate or prolong the sentencing process to a degree that the need to provide restitution to any victim is outweighed by the burden on the sentencing process.