U.S. v. Turner, M 05-504(MLO).
| Citation | 367 F.Supp.2d 319 |
| Decision Date | 29 April 2005 |
| Docket Number | No. M 05-504(MLO).,M 05-504(MLO). |
| Parties | UNITED STATES of America, v. Derek TURNER, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Mark Joseph Lesko, Central Islip, NY, for Plaintiff.
I write sua sponte to set forth the reasons for certain rulings I have made to date in this case and to address what will likely be recurring issues involving the statutory rights of crime victims pursuant to 18 U.S.C. § 3771. In addition, for the reasons set forth below, I now direct the government to provide the court with sufficient information about the victims in this case to fulfill its independent obligation to ensure that those victims are afforded their rights. That information must include the name and contact information for each victim, or victim's surrogate or lawful representative, but may exclude information about any victim who has waived the right to receive notification from the court. The information must be filed on the public docket, but may be submitted under seal and ex parte to the extent that such exceptions to the public filing requirement are supported by good cause. Further, in light of the novelty of this issue, I will stay the order requiring the filing of this information for one month to allow any party or victim (including any victim who wishes to proceed under a pseudonym) to object to this order or to suggest an alternate procedure.
On April 15, 2005, the government filed a complaint accusing Turner of using the mail to engage in a fraudulent scheme in violation of 18 U.S.C. § 1341. In particular, the complaint alleged that Turner had induced two individuals, identified thus far only as "John Doe # 1" and "John Doe # 2," to invest large sums of money in what proved to be a bogus private consolidated deposit fund, the return of which they were later unable to secure. Docket Entry ("DE") 1 ¶¶ 2-7, 10. On the basis of that complaint, the Honorable Michael L. Orenstein, Chief United States Magistrate Judge, issued a warrant for Turner's arrest. DE 2.
Three days later, the government arrested Turner and brought him before me for his initial appearance pursuant to Rule 5 of the Federal Rules of Criminal Procedure. DE 3. At that appearance, the parties agreed to the adjournment of the detention hearing and the entry of a temporary order of detention pursuant to 18 U.S.C. § 3142(f). DE 5. I neglected at that time to inquire of the government whether, and to what extent, it had identified alleged victims of the charged offense and notified them of their statutory rights.
At the detention hearing on April 21, 2005, see DE 6, I did inquire, and learned that the government has made the John Doe victims generally aware of the progress of its investigation but had not given them specific, timely notice of either the initial appearance or the adjourned detention hearing. The prosecutor went on to advise that there are other similarly situated individuals not mentioned in the complaint whom the government characterizes as victims of Turner's alleged offense and who likewise had not been given specific notice of the proceedings.
At the conclusion of the hearing, I found that no condition or combination of conditions would reasonably assure Turner's appearance as required, and therefore entered a permanent order of detention pending trial. DE 7; see 18 U.S.C. § 3142(e). I did so with Turner's consent, and with the explicit understanding that the finding was subject to reconsideration once he secured a package of potential sureties for me to present at the next scheduled hearing on April 26, 2005. In light of the pendency of further bail-related proceedings, pursuant to my affirmative obligation to ensure that crime victims are afforded their rights, see 18 U.S.C. § 3771(b), and as a remedy for the earlier failure to afford those rights, I directed the government to provide all alleged victims of the charged offense a written summary (if not a transcript) of the proceedings to date as well as notification of their rights under the statute with respect to future proceedings, including notice of the next scheduled proceeding and of their right to be heard with respect to Turner's application for release. I also alerted the parties' counsel that I intended to address in writing the effect of § 3771 on these proceedings, and permitted — but did not require — either side to submit a brief on the matter. Neither party has done so to date.
At the next appearance on April 26, 2005, see DE 9, I inquired as to the government's compliance with my earlier order regarding victim notification. The prosecutor reported that each alleged victim of the charged offense had been notified of the proceeding and that none had elected to attend and be heard with respect to Turner's application for release. Believing that colloquy to satisfy my obligation to ensure that victims were afforded their rights, I made no further inquiry and proceeded to hear arguments and proffers of facts with respect to the substantive issue before me, after which I denied Turner's application for release.
The parties' counsel thereupon informed me at a sidebar conference that they were considering submitting a joint request to exclude a period of delay in computing the time within which an indictment must be filed pursuant to 18 U.S.C. § 3161(h)(8), and inquired as to the procedure for doing so. I noted that such a joint request, if made in a public proceeding might also implicate victims' statutory rights, see 18 U.S.C. § 3771(a)(2) & (7), and should therefore be done on notice to any alleged victim in the case, but that I would not require such notification if, as is occasionally the practice in this district, the parties simply submitted a written waiver formed signed by counsel and the defendant to be so ordered by the court. On April 29, 2004, the parties' submitted a written waiver and I signed an order approving the waiver. DE 11.
On October 30, 2004, the President signed into law the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila Lynn Crime Victims' Rights Act ("CVRA"), as title I of the Justice For All Act of 2004, Pub.L. 108-405. The CVRA is only the most recent of several statutory protections for crime victims enacted in the quarter-century since President Reagan's Task Force on Victims of Crime issued a report demonstrating that courts, prosecutors and law enforcement officers too often ignored or too easily dismissed the legitimate interests of crime victims.1 The CVRA confers eight specific rights on crime victims, several of which affect the instant proceedings. Specifically, a crime victim has the following rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding, 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.
(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
(5) The reasonable right to confer with the attorney for the Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim's dignity and privacy.
18 U.S.C. § 3771(a). Several of these specific rights were already part of federal law as the result of previous legislative efforts to improve the treatment of victims in the criminal justice system. See 42 U.S.C. § 10606(b). But unlike previous reforms, the CVRA gives crime victims direct standing to vindicate their procedural and substantive rights in criminal cases independently of prosecutors, see 18 U.S.C. § 3771(d),2 and also imposes on the judiciary an affirmative obligation to "ensure" that those rights are "afforded." Id. § 3771(b).
The complaint in the instant case alleges the existence of two individuals, whose names the government has thus far withheld from public disclosure, who sustained economic harm as a result of the offense charged against the defendant. To date, no victim has appeared and no person has sought to assert the rights of any potential victim. Nevertheless, given the statute's mandate that courts ensure that victims are afforded their rights, I must consider whether the CVRA requires any particular action at each stage of the proceedings despite the absence of any application. The circumstances also call upon me to determine the extent to which the CVRA applies to the specific individuals described in the complaint and possibly others, as well as the extent to which it applies to the specific proceedings to date, namely, the initial appearance and bail hearings, and the written waiver pursuant to the Speedy Trial Act. I address each matter in turn.3
Courts are required to ensure that crime victims are afforded their rights in "any court proceeding involving an offense against a crime victim." 18 U.S.C. § 3771(b). Although the term "involving" raises interpretive issues that courts may have to resolve in future cases, its core meaning unquestionably encompasses the circumstances of this case. The phrase "an offense against a crime victim" could be likewise be read to effect what I believe would be an unintended narrowing of the statute's reach, but only in circumstances that do not obtain here. If the allegations in the complaint are true, Turner unquestionably...
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