U.S. v. Dengenhardt, 2:03 CR 00297 PGC.
| Decision Date | 21 December 2005 |
| Docket Number | No. 2:03 CR 00297 PGC.,2:03 CR 00297 PGC. |
| Parties | UNITED STATES of America, Plaintiff, v. Angelo M. DEGENHARDT, Defendant. |
| Court | U.S. District Court — District of Utah |
Gordon W. Campbell, Mark Y. Hirata, Salt Lake City, UT, for Plaintiff.
Robert Hunt, Chelsea Koch, Salt Lake City, UT, for Defendant.
This criminal fraud case is before the court for sentencing. The government has advised the court that several of the victims wish to make a statement — or "allocute" — at the sentencing hearing. Their request presents a question under the current rules of Criminal Procedure, which gives only victims of crimes of violence or sexual abuse a right of allocution.1 This narrow provision, however, has been superceded by an Act of Congress — the Crime Victims Rights Act. The Act broadly guarantees victims of all crimes the right to allocute. Accordingly, the court will follow the congressional command and give the victims an opportunity to allocute at the sentencing.
On May 9, 2005, defendant Angelo Degenhardt pleaded guilty to committing a fraudulent interstate transaction in violation of 15 U.S.C. § 77q. As part of his plea agreement, he confessed to obtaining money from investors without disclosing material facts surrounding those investments. He also misrepresented the security of the investors' funds, falsely promising that their money would be held in escrow accounts and that he would refund their money if they wanted it back.
Mr. Degenhardt and the government both agreed to a sentence of six-months of home confinement pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, subject to the approval of the court. The plea agreement also obligated Mr. Degenhardt to pay at least $2.4 million in restitution and such additional amount as the court might determine was appropriate.
After Mr. Degenhardt pleaded guilty, the court scheduled a sentencing hearing to determine whether to accept the plea with the stipulated six-month sentence and whether to order additional restitution. In preparation for that hearing, the U.S. Attorney's Office assisted the probation office in collecting restitution information from various victims. The office determined that a total of thirty-two victims had lost $3.8 million as a result of Mr. Degenhardt's fraud. Mr. Degenhardt agreed that this was the appropriate restitution figure.
The government then advised the court that several of the victims would be present in court during the sentencing hearing and that some of these victims wished to make a statement directly to the court — or "allocute" at sentencing.2 Their request creates an issue under the current Federal Rules of Criminal Procedure, which requires the court to give only victims of violent and sexual offenses an opportunity to allocute:
Before imposing sentence, the court must address any victim of a crime of violence or sexual abuse who is present at sentencing and must permit the victim to speak or submit any information about the sentence.3
The court must therefore consider whether, despite this language, victims of financial crimes also have a right to address the court.
All crime victims now appear to have the right to participate in sentencing hearings under the recently enacted Crime Victims Rights Act (CVRA).4 The CVRA directs that "a crime victim" has the "the right to be reasonably heard at ... sentencing."5 The Act is not limited to victims of violent and sexual crimes, but rather extends to any victim of "a Federal offense."6 This broad language appears to conflict with the narrower provision in the rules of criminal procedure.
Perhaps the court could duck the question of whether the CVRA supercedes the rules' current limits by concluding that the rules at least permit the court to exercise discretion to allow allocution by all victims. A strong argument can be made that courts have discretion to hear at sentencing from any person who might provide useful information, including victims of financial crimes.7 As the Federal Criminal Rules Advisory Committee explained in 1994 (before any of the victim allocution provisions were added into the rules or statutory law), "Under present practice, the court may permit, but is not required to hear, victim allocution before imposing sentence."8 This discretionary authority stems from 18 U.S.C. § 3661, which provides: "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." This directive plainly permits a court to hear from financial crimes victims about their victimizer's conduct before imposing an appropriate sentence.
But treating victim allocution as a mere discretionary matter for the courts would leave questions open for debate in future cases. This uncertainty poses problems for prosecutors and the victim/witness unit in this district, who are frequently asked by victims whether they will have the chance to speak at sentencing. Crime victims deserve to know whether, like criminal defendants, they can always address the court at sentencing. The court will, therefore, give a firm answer to this question.
The CVRA also suggests it is desirable to reach this question. The CVRA instructs that the court "shall ensure" the crime victims are afforded their rights under the Act.9 It is therefore appropriate for this court to announce, as part of its efforts to ensure that victims receive their rights, that the victims in this case must be allowed to address the court at sentencing.
UNDER THE CRIME VICTIMS RIGHTS ACT, VICTIMS OF ALL CRIMES HAVE A RIGHT TO PERSONALLY ADDRESS THE COURT.
Congress recently commanded that all crime victims have the right to be "heard" at sentencing. Congress conferred this right through the Crime Victims Rights Act, which was designed to be a "broad and encompassing" statutory victims' bill of rights.10 These rights were intended to make victims "an independent participant in the proceedings."11 Thus, the CVRA lists a series of victims' rights, including the right at issue here — the right to be heard at sentencing:
A crime victim has the following rights:
. . .
The right to be reasonably heard at any public proceeding in the district court involving ... sentencing....12
Obviously, this provision extends to crime victims a right to be heard during sentencing. In the context of this case, then, three issues arise from this language: first, whether the right to be heard extends to victims of non-violent crimes, such as the financial crime at issue here; second, whether the right to be reasonably heard at sentencing includes a right to be heard orally; and third, whether the right to be heard is at the discretion of the court. Each of these questions will be addressed in turn.
The CVRA plainly extends victims' rights beyond those found in the current criminal rules by giving a right to be heard to all victims. Rule 32(i) confers a right to be heard to "any victim of a crime of violence or sexual abuse."13 In contrast, the CVRA extends its rights more broadly to all crime victims, that is, to any "person directly and proximately harmed as a result of the commission of a Federal offense."14 The CVRA definition is not limited to certain kinds of crimes. To the contrary, the sponsors of the CVRA described this as "an intentionally broad definition because all victims of crime deserve to have their rights protected."15
The question thus arises as to whether the court should follow the CVRA's broad command to allow victims all of crimes to be heard or Rule 32(i)'s narrower command that only victims of violent crime have this right. As a policy matter, the CVRA's broad command makes considerable sense. There is no sound reason for limiting victim allocution to only victims of violent crimes.16 As Professor Jayne Barnard explains, "victims of [economic] crimes often feel just as violated, anxious, confused, betrayed, and depressed as do victims of violent crimes."17 Senator Hatch has also described how the distinction between the two kinds of offenses can be artificial and unrelated to the purposes served by victims' rights:
I believe we must tread carefully when assigning ... rights on the arbitrary basis of whether the legislature has classified a particular crime as "violent" or "nonviolent." Consider, for example, the relative losses of two victims. First, consider the plight of an elderly woman who is victimized by a fraudulent investment scheme and loses her life's savings. Second, think of a college student who happens to take a punch during a bar fight which leaves him with a black eye for a couple of days. I do not believe it to be clear that one of these victims is more deserving of ... protection than the other.18 Presumably because of reasons like these, in 2004 the Criminal Rules Advisory Committee proposed amending the rules to extend a right of allocution to all victims.19
More important than policy considerations, however, is the simple fact that a broad congressional mandate in a statute must take precedence over a narrower court rule. It is settled law that a "statute takes priority over the procedural rules adopted by the Court for the orderly transaction of its business."20 Here, the limits in Rule 32 of the Federal Rules of Criminal Procedure must give way to the CVRA's command that all victims have the right to allocute.
For all these reasons, the right to be heard at sentencing extends to all victims of crime — including the victims of Mr. Degenhardt's financial crimes in this case.
Because the victims of Degenhardt's...
To continue reading
Request your trial
-
Guilty plea agreements and plea bargaining
...that victims should be treated equally with the defendant, defense counsel, and the prosecutor.” United States v. Degenhardt , 405 F. Supp. 2d 1341, 1348 (D. Utah 2005). Among the rights afforded to all crime victims is “the right to be reasonably heard at any public proceeding in the distr......
-
Representing victims and witnesses
...§18:04 Criminal Defense Tools and Techniques 18-4 The following are examples of such statutes [ see United States v. Degenhardt , 405 F.Supp.2d 1341, 1350 & n.48 (D. Utah 2005) (surveying state statutes)]: • Federal: 18 U.S.C. §3771 (granting victims right to be reasonably protected from ac......