U.S. v. Sharp

• Decision Date: 22 November 2006
• Docket Number: No. CRIM.A.3:06CR182.,CRIM.A.3:06CR182.
• Parties: UNITED STATES of America v. Jeremy SHARP, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

463 F.Supp.2d 556

UNITED STATES of America v. Jeremy SHARP, Defendant.

No. CRIM.A.3:06CR182.

United States District Court, E.D. Virginia, Richmond Division.

November 22, 2006.

Charles E. James, Jr., U.S. Attorney, Richmond, VA, for United States of America.

MEMORANDUM OPINION

DOHNAL, United States Magistrate Judge.

This non-dispositive matter is before the Court upon referral by the district court pursuant to 28 U.S.C. § 636(b)(1)(A) on the Defendant's Motion to Reschedule Sentencing and Motion to Deny the Ex Parte Motion of Elizabeth Nowicki ("Nowicki") (docket entry nos. 17, 18).¹ The sole issue before this Court is whether Nowicki has standing as a "victim" pursuant to the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act of 2004 ("Crime Victims' Rights Act," the "CVRA," or the "Act"), Pub.L. No. 108-405, 118 Stat. 2260 (2004) (codified at 18 U.S.C. § 3771), such that she is statutorily entitled to present a victim impact statement at the Defendant's forthcoming sentencing hearing. Having thoroughly reviewed both the Government's and Nowicki's relevant submissions and briefs, this matter is now ripe for decision.² For the reasons set forth herein the Court finds that Nowicki is not a "victim" as that term is defined in the CVRA and therefore is not entitled to provide a victim impact statement to the district court at the Defendant's sentencing hearing. As such, the portion of the Defendant's motion seeking to preclude the admissibility of evidence by Nowicki at the Defendant's sentencing hearing is GRANTED.³

1. Facts Supporting the Defendant's Guilty Plea

Both the Government and the Defendant Sharp jointly submitted a Statement of Facts (Facts) in the trial court to substantiate the Defendant's plea of guilty to the underlying offense (docket entry no. 5). Thus, the facts surrounding the Defendant's guilty plea are not in dispute.

For approximately two years (February 2004 through February 2006), the Defendant was engaged in a conspiracy with others to distribute marijuana. (Facts ¶ 1.) The Defendant would regularly purchase various amounts of the drug (ranging from a quarter pound to seven pounds), and then divide the quantities into smaller amounts for redistribution. (Id. at ¶ 2.) On February 8, 2006, the Defendant participated in a recorded conversation with a confidential law enforcement source, at which time he acknowledged the existence of a large drug debt ($40,000), his drug pricing standards, and the quantities of marijuana currently in his possession. (Id. at ¶ 4.) Relying on this information, the Government executed a search warrant at the Defendant's home, at which time the remnants of a marijuana growing operation, as well as marijuana residue and paraphernalia, were discovered. (Id. at ¶ 6.) The Defendant subsequently pled guilty before the sentencing court to conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(D), and 846.⁴

2. Facts Surrounding the Purported Victim's Desire to Testify

Nowicki, who has been engaged as a law professor at various prestigious institutions, asserts that she is a "victim" as that term is used in the CVRA such that she is entitled to give a victim impact statement at the Defendant's forthcoming sentencing hearing. In her September 20, 2006 ex parte letter to the Court, Nowicki claims that she was:

"physically, mentally, and emotionally abused by one of [the Defendant's] marijuana customers, [my former boyfriend],⁵ whose violence and poor judgment was at least partly attributable to the drugs [the Defendant] illegally sold to [my former boyfriend]."⁶

See Letter of Elizabeth Nowicki to the Honorable Henry E. Hudson, September 20, 2006 ("The First Letter"), at 1. The First Letter asserts that:

"I know personally that [the Defendant] sold to [my former boyfriend], I know personally that [my former boyfriend] was under the influence of drugs when he abused me (he claims to have been high for every moment that he was with me throughout our relationship),⁷ and I have done enough academic research over the past several months to conclude that I can tie [my former boyfriend's] abuse, erratic behavior, and violence to the marijuana."

Id.

In a subsequent letter to the Court, Nowicki concludes as follows: "...I am of the view that I am a victim of [the Defendant's] drug dealing, conspiracy, and trafficking because I was abused by drug addict [my former boyfriend]. [He] was a customer of [the Defendant's], and [he] was a chronic marijuana smoker. [He] was significantly impaired by the marijuana, such that he was abusive." See Letter of Elizabeth Nowicki to the Honorable Dennis W. Dohnal, November 13, 2006 ("The Second Letter"), at 1. Much of Nowicki's Second Letter surrounds her attempt to demonstrate the link between her former boyfriend's marijuana use and her subsequent abuse. For instance, Nowicki cites to various scholarly articles in asserting that

"[v]iolent and aggressive behavior is directly linked to marijuana usage in at least four ways that have been examined by researchers:

1. Use of marijuana corresponds with increased violence and crime.

2. Intimate partner abuse is linked to marijuana usage. At least one study has shown that 75% of male batterers use marijuana.

3. Marijuana impacts the brain in a way that exacerbates mental problems and instigates psychosis such as paranoia. Mental psychosis is statistically linked to violence, and paranoia specifically is linked to violence.

4. Marijuana withdrawal is correlated with aggressive behavior (particularly within the first ten days of not smoking marijuana; symptoms of withdrawal start to appear as soon as 24 hours after last use). If a regular user is without money to buy marijuana even for just a day or a few days, he can be aggressive as his body begins the withdrawal process. The aggressive behavior tends to be worse at the beginning of the withdrawal process such that even short-term periods of abstinence are problematic."⁸

The Second Letter at 2-3 (footnotes and citations omitted).

Nowicki's professed motivation in seeking standing as a "victim" of the Defendant's federal offense is admittedly noble: "[T]o vindicate the rights of every other battered woman in the Eastern District of Virginia who will never have the chance to tell a drug dealer how his dealing has impacted her life... [and]...to make sure that no other woman in a drug dealing sentencing in the [sic] our jurisdiction is denied her right to speak." The First Letter at 3 n. 6. Yet, as the analysis below reveals, the CVRA does not provide Nowicki standing as a "victim" for her to provide a victim impact statement at the Defendant's sentencing proceeding.

Analysis

1. Statutory Framework

Assuredly, victims of crime often do not feel their voices are heard or that their concerns are adequately addressed in the judicial process. Many express frustration with a judicial system that affords many rights to the accused while giving few to the victim. See H.R.Rep. No. 108-711, at 3 (2004), as reprinted in 2004 U.S.C.C.A.N. 2274, 2276.⁹ Signed by President Bush into law on October 30, 2004, the CVRA seeks to rectify these inadequacies by providing "crime victims" direct standing to vindicate their procedural and substantive rights in criminal cases. Among the eight specific rights the CVRA confers on crime victims is:

"The right to be reasonably heard at any public hearing in the district court involving ... sentencing...."

18 U.S.C. § 3771(a)(4).¹⁰ "In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded" this right. Id. at § 3771(b)(1). However, only a "crime victim" is permitted to be heard at a defendant's sentencing, and the CVRA defines a "crime victim" as "a person directly and proximately harmed as a result of the commission of a Federal offense...." Id. at § 3771(e) (emphasis added). Though the definition in theory is straightforward, the meaning behind the words is uncertain, especially with regard to the meaning of "proximate harm."

The CVRA's legislative history provides only minimal guidance as to the breadth and reach by which persons may seek to enforce their rights as a "crime victim" of a federal offense. During floor debate on the Act, Senator Jon Kyl, one of its primary sponsors, noted that the definition of "victim" in the CVRA is an "intentionally broad definition because all victims of crime deserve to have their rights protected, whether or not they are the victim of the count charged."¹¹ 150 Cong. Rec. S10910, 10912 (daily ed. Oct. 9, 2004) (statement of Sen. Kyl). So far as this Court can discern, this statement provides the only legislative history concerning the reach of the term "crime victim" articulated in the statute.¹² And, although this definition is to be interpreted "broadly," this Court is nonetheless constrained by the words used in the statute: the CVRA only applies to Nowicki if she was "directly and proximately harmed" as a result of the commission of the Defendant's federal offense.

2. Comparative Statutes

Although no federal court has yet had the opportunity to examine the extent to which a person may qualify as a "victim" under the CVRA, courts have interpreted the word in the context of two different victims' statutes containing similar defining language — the Victim and Witness Protection Act of 1982 ("VWPA"), 18 U.S.C. § 3663, and the Mandatory Victims Restitution Act of 1986 ("MVRA"), 18 U.S.C. § 3663A. Both statutes define a "victim" as

a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant's criminal conduct in the course of the scheme, conspiracy, or pattern.

18 U.S.C....