Kenna v. U.S. Dist. Court for C.D.Cal.

• Decision Date: 20 January 2006
• Docket Number: No. 05-73467.,05-73467.
• Citation: 435 F.3d 1011
• Parties: W. Patrick KENNA, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

435 F.3d 1011

W. Patrick KENNA, Petitioner, v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent.

No. 05-73467.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 11, 2006.

Filed January 20, 2006.

Steven J. Twist, Scottsdale, AZ; Keli B. Luther, Crime Victims Legal Assistance Project, Tempe, AZ; John A. Case, Jr., Law Offices of John A. Case, Jr., Los Angeles, CA; for Petitioner.

The Honorable John F. Walter, Los Angeles, CA, Respondent.

Viet D. Dinh, Wendy J. Keefer, Bancroft Associates PLLC, Washington, DC; Richard Stone, Hogan & Hartson L.L.P., Los Angeles, CA; H. Christopher Bartolomucci, Hogan & Hartson L.L.P., Washington, DC; for Amici Curiae United States Senators Jon Kyl and Dianne Feinstein.

Assistant United States Attorney R. Stephen Kramer was present at oral argument on behalf of the United States and answered questions, but did not file a brief or take a position on the merits.

Petition for Writ of Mandamus to the United States District Court for the Central District of California; John F. Walter, District Judge, Presiding. D.C. No. CR-03-00568-JFW.

Before GOODWIN, FRIEDMAN^* and KOZINSKI, Circuit Judges.

Opinion by Judge KOZINSKI; Dubitante by Judge FRIEDMAN

KOZINSKI, Circuit Judge.

We consider whether the Crime Victims' Rights Act, 18 U.S.C. § 3771, gives victims the right to allocute at sentencing.

Facts

Moshe and Zvi Leichner, father and son, swindled scores of victims out of almost $100 million. While purporting to make investments in foreign currency, they spent or concealed the funds entrusted to them. Each defendant pleaded guilty to two counts of wire fraud and one count of money laundering. More than sixty of the Leichners' victims submitted written victim impact statements. At Moshe's sentencing, several, including petitioner W. Patrick Kenna, spoke about the effects of the Leichners' crimes—retirement savings lost, businesses bankrupted and lives ruined. The district court sentenced Moshe to 240 months in prison.

Three months later, at Zvi's sentencing, the district court heard from the prosecutor and the defendant, as required by Federal Rule of Criminal Procedure 32(i)(4). But the court denied the victims the opportunity to speak. It explained:

I listened to the victims the last time. I can say for the record I've rereviewed all the investor victim statements. I have listened at Mr. Leichner's father's sentencing to the victims and, quite frankly, I don't think there's anything that any victim could say that would have any impact whatsoever. I—what can you say when people have lost their life savings and what can you say when the individual who testified last time put his client's [sic] into this investment and millions and millions of dollars and ended up losing his business? There just isn't anything else that could possibly be said.

One victim protested that "[t]here are many things that are going on with the residual and second and third impacts in this case that have unfolded over the last 90 days since we were last in this courtroom." But the district judge told the victims that the prosecutor could bring those developments to his attention, and continued to refuse to let the victims speak. Zvi was sentenced to 135 months in prison.

Kenna filed a timely petition for writ of mandamus pursuant to the Crime Victims' Right Act (CVRA), 18 U.S.C. § 3771(d)(3). He seeks an order vacating Zvi's sentence, and commanding the district court to allow the victims to speak at the resentencing.

Analysis

1. The criminal justice system has long functioned on the assumption that crime victims should behave like good Victorian children—seen but not heard. The Crime Victims' Rights Act sought to change this by making victims independent participants in the criminal justice process. See Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act, Pub. L. No. 108-405, §§ 101-104, 118 Stat. 2260, 2261-65 (2004) (codified at 18 U.S.C. § 3771). The CVRA guarantees crime victims eight different rights, and unlike the prior crime victims' rights statute, allows both the government and the victims to enforce them. See 18 U.S.C. § 3771(a), (d)(1); United States v. McVeigh, 106 F.3d 325, 335 (10th Cir.1997) (per curiam).

Kenna and the district court disagree over the scope of one of the rights guaranteed by the CVRA: "The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C. § 3771(a)(4). Kenna contends that his right to be "reasonably heard" means that he is entitled to speak in open court at Zvi's sentencing, if that is how he chooses to express himself. The district court argues that the words "reasonably heard" vest the judge with discretion about how to receive the views of the victims, and that the judge is entitled to limit Kenna to written victim statements or his prior statements at Moshe's sentencing. No court of appeals has considered the scope of this CVRA right, and the two district courts that have closely considered it have reached opposite conclusions. Compare United States v. Degenhardt, 405 F.Supp.2d 1341, 1344, 2005 WL 3485922, at *3 (D.Utah 2005) (CVRA grants victims a right to speak) with United States v. Marcello, 370 F.Supp.2d 745, 748 (N.D.Ill.2005) (no it doesn't).

Kenna would have us interpret the phrase "reasonably heard" as guaranteeing his right to speak. For support, he points to the dictionary definition of "hear"—"to perceive (sound) by the ear." The American Heritage Dictionary of the English Language (4th ed.2000), available at http://www.bartle-by.com/61/69/H0106900.html. Kenna concedes that the district court may place reasonable constraints on the duration and content of victims' speech, such as avoiding undue delay, repetition or the use of profanity.¹ However, in Kenna's view, the district court may not prohibit victims from speaking in court altogether or limit them to making written statements. This is the interpretation adopted by the district court in Degenhardt.

But this isn't the only plausible interpretation of the phrase "reasonably heard." According to the district court, to be "heard" is commonly understood as meaning to bring one's position to the attention of the decisionmaker orally or in writing. See, e.g., Fernandez v. Leonard, 963 F.2d 459, 463 (1st Cir.1992) ("Where the parties have had a `fair opportunity to present relevant facts and argument to the court,' a matter may be `"heard" on the papers' alone.'" (quoting Aoude v. Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir.1988))). The district court urges us to follow Marcello and hold that the CVRA guarantees victims only a right to make their position known by whatever means the court reasonably determines. See Marcello, 370 F.Supp.2d at 748. Even though "heard" has been held to include submission on the papers in some contexts, it does not follow that the CVRA calls for an equally broad construction. It merely shows that the district court's interpretation of the term is also plausible.²

The district court also argues that, had Congress meant to give victims a right to speak at sentencing hearings, it could easily have done so by using the word "speak" which clearly connotes only oral communications, not written ones. This is the term used in Federal Rule of Criminal Procedure 32(i)(4)(B), which gives the victims of certain types of crimes the right "to speak or submit any information about the sentence." The district court would have us infer from the fact that Congress used the more ambiguous term "heard" that it meant to give victims of crimes not covered by Rule 32 a more circumscribed right to present their views. However, the term "heard" does not appear in isolation in the CVRA. The full phrase we are construing is "[t]he right to be reasonably heard at any public proceeding in the district court involving . . . sentencing." Virtually all proceedings in district court are public in the sense that the papers and other materials may be viewed by anyone on request to the clerk's office.³ When Congress used the word "public" in this portion of the CVRA, however, it most likely meant to refer to proceedings in open court—much as the word is used in the common phrase "public hearing."⁴ So read, the right to be "heard" at a "public proceeding" becomes synonymous with "speak" and we can draw no negative inference from the congressional choice of one term over the other.

In the end, we find none of these textual arguments dispositive and conclude, as did Degenhardt, that both readings of the statute are plausible. The statute is therefore ambiguous as to what it means for crime victims to be heard. To resolve this ambiguity, we turn to the legislative history of the CVRA. See Toibb v. Radloff, 501 U.S. 157, 162, 111 S.Ct. 2197, 115 L.Ed.2d 145 (1991) ("[A] court appropriately may refer to a statute's legislative history to resolve statutory ambiguity. . . ."). The Senate considered the CVRA in April 2004, and at that time the primary sponsors of the bill, Senators Jon Kyl and Dianne Feinstein, discussed this very issue:

It is not the intent of the term "reasonably" in the phrase "to be reasonably heard" to provide any excuse for denying a victim the right to appear in person and directly address the court. Indeed, the very purpose of this section is to allow the victim to appear personally and directly address the court.

150 Cong. Rec. S4268 (daily ed. April 22, 2004) (statement of Sen. Kyl); see also id. (statement of Sen. Feinstein) ("That is my understanding as well."). Six months later, the CVRA was attached to a House bill, and Senator Kyl reiterated his understanding of the CVRA language.

It is important that the "reasonably be heard" language not be an excuse for minimizing the victim's opportunity to be heard. Only if it is not practical for the victim to speak in person or...