U.S. v. Grace, CR 05-07-M-DWM.
| Decision Date | 13 February 2009 |
| Docket Number | No. CR 05-07-M-DWM.,CR 05-07-M-DWM. |
| Citation | 597 F.Supp.2d 1157 |
| Parties | UNITED STATES of America, Plaintiff, v. W.R. GRACE, Alan R. Stringer, Henry A. Eschenbach, Jack W. Wolter, William J. McCaig, Robert J. Bettacchi, O. Mario Favorito, Robert C. Walsh, Defendants. |
| Court | U.S. District Court — District of Montana |
Vernon Broderick, Weil Gotshal and Manges, New York, NY, Thomas C. Frongillo, Patrick J. O'Toole, Weil Gotshal & Manges, Stephen A. Jonas, Wilmer Cutler Pickering Hale & Dorr, Boston, MA, Brian K. Gallik, Goetz Gallik & Baldwin, Aimee M. Grmoljez, Catherine A. Laughner, Browning Kaleczyc Berry & Hoven, Bozeman, MT, David B. Hird, Weil Gotshal & Manges, David S. Krakoff, Gary A. Winters, James T. Parkinson, Lauren Reid Randell, Mark Holscher, Mayer Brown Rowe Maw LLP, Jeannie S. Rhee, Howard M. Shaprio, Wilmer Cutler Pickering Hale & Dorr LLP, David M. Bernick, Barbara Harding, William B. Jacobson, Tyler D. Mace, Brian T. Stansbury, Laurence A. Urgenson, Kirkland & Ellis, Daniel P. Golden, David E. Roth, Stephen R. Spivack, Bradley Arant Boult Cummings, Washington, DC, Ronald F. Waterman, Gough Shanahan Johnson & Waterman, Palmer A. Hoovestal, Hoovestal Law Firm, Helena, MT, C. J. Johnson, Kalkstein & Johnson, Michael F. Bailey, Bailey & Antenor, Stephen R. Brown, Kathleen L. DeSoto, Charles E. McNeil, Garlington, Lohn & Robinson, PLLP, William Adam Duerk, Michael J. Milodragovich, Christian T. Nygren, Milodragovich Dale Steinbrenner & Nygren, Missoula, MT, William A. Coates, Roe Cassidy Coates & Price, Greenville, SC, Elizabeth Van Doren Gray, Sowell Gray Stepp & Lafitte, Columbia, SC, Angelo J. Calfo, Harold Malkin, Michelle K. Peterson, Yarmuth Wilsdon Calfo, Seattle, WA, Walter R. Lancaster, Kirkland & Ellis, Los Angeles, CA, Carolyn J. Kubota, Jeremy Maltby, O'Melveny & Myers, Los Angeles, CA, Scott A. McMillin, Kirkland & Ellis, Chicago, IL, for Defendants.
Kevin Cassidy, David M. Uhlmann, U.S. Dept. of Justice, Washington, DC, Kris A. McLean, Office of the U.S. Attorney, Missoula, MT, for Plaintiff.
At the motions hearing held in this matter on January 22, 2009, the Court granted defendants' motion under Fed.R.Evid. 615, determining lay witnesses would be excluded from the proceedings scheduled to commence on February 19, 2009. The government argues that some of its witnesses are victims of the crimes alleged in the Superseding Indictment, and are therefore entitled to exercise the rights Congress has granted to victims of federal criminal offenses through the enactment of the Crime Victim Rights Act, 18 U.S.C. § 3771 ("the Act"), one of which is the right to not be excluded from court proceedings. The issue before the Court is whether the Court's ruling that witnesses will be excluded from these proceedings conflicts with what the Act requires in this case. None of the persons living in Libby, Montana, who believe they may be a victim of alleged crimes is excluded, only those persons listed as witnesses by the government are subject to the defendants' invocation of Rule 615 Fed.R.Evid.
On February 2, 2009, the government filed a Motion to Accord Rights to Victim Witnesses, pursuant to the Act and Fed. R.Crim.P. 60(a)(2) and (b)(1). Under Rule 60(b)(1), "[t]he court must promptly decide any motion asserting a victim's rights[.]" The government asserts that its motion is part of the "best efforts" the Act requires it to make on behalf of crime victims, see 18 U.S.C. § 3771(c)(1), and correctly identifies the Court's obligation to "take up and decide any motion asserting a victim's right forthwith[,]" see 18 U.S.C. § 3771(d)(3).1 The motion seeks a declaration that the thirty-four persons named in the attachment to the brief in support of the motion meet the definition of "crime victim" under the Act and are therefore entitled to the rights the Act confers.
Under the Act, a Court may not exclude from a public court proceeding a victim testifying as a witness "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." 18 U.S.C. § 3771(a)(3); see also Fed. R. Crim P. 60(a)(2). The government argues that the thirty-four persons are witnesses and victims under the Act, and therefore the Court cannot exclude them from the proceedings pursuant to Rule 615 without finding by clear and convincing evidence that their testimony would be materially altered if they heard other testimony.
Shortly after the government filed its motion, on February 11, 2009, government witnesses Melvin and Lerah Parker appeared through counsel on a Motion to Assert Rights Pursuant to the Crime Victims' Rights Act. The brief in support of the Parkers' motion ("the Parker Brief") offers arguments similar to those the government does in its motion. Throughout the analysis set forth in this Order, the Court focuses primarily on the government's brief. The Parker brief is directly addressed when appropriate.
At the January 22 motions hearing, before granting Defendants' request to exclude witnesses pursuant to Rule 615, the Court addressed the issue of victims and stated, "[A]s the Congress has defined the term `crime victim,' there are no crime victims identifiable in this case." As discussed at length below, this conclusion is a consequence of the unusual theory of criminal liability the government has advanced in this matter, making this case different from those in which victims are readily identifiable. As the Court noted at the hearing, in drug cases, cases involving child pornography, and allegations of robbery of a credit union or bank, individuals harmed as a result of the commission of these offenses are not difficult to identify. The same cannot be said here.
The January 22 hearing was not the first the time the Court addressed this issue during these proceedings. In the Court's Order of May 15, 2006, the Court said,
From the beginning, the government has pushed the definition of who might be a victim, if any, in this case, beyond reason. No doubt individuals in Libby have concerns. No doubt the community has concerns. Nonetheless, it is beyond the pale to suggest that the legitimate concerns of an individual or a community transform the meaning of victim as intended by Congress.
See dkt. # 448. In the Court's Order of August 10, 2006, the parties were precluded from describing or identifying any witness as a victim. See dkt. # 714. And in a published Order, United States v. W.R. Grace, 401 F.Supp.2d 1057 (D.Mont.2005), the Court addressed the government's obligations under the Justice for All Act, which requires the government to comply with applicable provisions of the Crime Victims' Rights Act.
Unfortunately, it is necessary at the outset of this Order to clarify what this Court has not said on the issue of victims. This is easily accomplished by simply quoting the government's and the Parkers' characterizations regarding the Court's conclusions. Whether the inaccuracies the briefs contain are deliberate mischaracterizations of the Court's reasoning, or just profound misunderstandings of this sensitive and complex issue and the Court's conclusions, is not important for purposes of this Order. It is important, however, that the Court make clear that it has not concluded, in this Order or any other, or on the record at any hearing in this matter, that "because the crimes alleged in this case have yet to be proven, no one can be considered a victim." Govt. Brief at 4. Nor has it concluded, as the Parkers assert, that they and other victims "are not protected by the [Act] because the trial has yet to be held and the defendants are disputing the charges." Parker Brief at 2. Having brushed aside these simplistic and incorrect statements of the law of the case in this action, a careful and deliberate consideration of the Act and its application to this case is necessary. See 18 U.S.C. § 3771(b)(1).
The Act defines a crime victim as a "person directly and proximately harmed as a result of the commission of a federal offense." 18 U.S.C. § 3771(e). The Act necessarily presumes, according to its own terms, that it is applicable where 1) the commission of a federal offense has occurred, and 2) as a result of the commission of that federal offense, identifiable persons have been directly and proximately harmed. I cannot conclude, based on the federal offenses the government alleges in the Superseding Indictment, that any of the thirty-four individuals listed in the government's brief meet the definition of crime victim. As the government has charged the offenses in Counts I, II, III, and IV—the counts to which the Act is applicable2—the Court cannot identify any crime victims as the Act defines them, and the government's motion and the Parkers' motion must be denied.
The government states in its brief that it "disagrees with [the Court's] application of the crime victim definition." It argues that "in this case there are individuals who believe they are victims of the crimes alleged in the indictment[.]" These victims, the government contends, "believe they have been harmed as a direct result of deliberate acts of the defendants." The government further contends that it "does not believe the victims in this case who are witnesses in the government's case in chief can be treated differently than a victim in a bank fraud case or a rape case." According to the government's brief, it "considers some 2000 people to be victims of the crimes alleged in the Superseding Indictment," at least thirty-four of which "are expected to testify."
The linchpin of the government's weak argument is United States v. Turner, 367 F.Supp.2d 319, 326 (E.D.N.Y.2005), a case involving the federal offense of mail fraud. The United States asks the Court to "adopt the approach taken by the district court" there. The opinion the government cites is the...
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