New and Noteworthy
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United States v. Kovall, 857 F.3d 1060 (9th Cir. 2017)
Two defendants pleaded guilty to charges of conspiring to commit federal programs bribery that had an effect on the award of tribal contracts. As part of their sentences, defendants were ordered to pay restitution under the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A (MVRA), to the Twenty-Nine Palms Band of Mission Indians (“the Tribe”), the victim of defendants’ criminal conduct. Defendants appealed the restitution order, claiming that the district court abused its discretion in calculating the “other fees” amount, and the Tribe also appealed, challenging both the “direct loss” and “other fees” amounts of the restitution order. The Ninth Circuit asked the parties to address whether the Tribe could appeal restitution ordered pursuant to the MVRA. The Ninth Circuit had previously held that victims do not have standing to directly appeal restitution ordered under another restitution provision (the Victim and Witness Protection Act [VWPA]), and the Tribe argued that it nevertheless had standing to appeal restitution ordered pursuant to the MVRA. After analyzing the history and purpose of the MVRA and the VWPA, including the mandatory nature of restitution under the MVRA, the Ninth Circuit held that the Tribe, as the victim of defendants’ criminal conduct, has Article III standing regarding restitution orders. The Ninth Circuit continued on, however, to observe that the “fact that a would-be litigant has Article III standing does not guarantee the right to take an appeal,” as in “the federal system, there is no general right to an appeal.” And, in contrast to the rules governing civil cases in federal court, the criminal rules “do not provide for a right of intervention” for appellate purposes. Because nothing in the MVRA altered those rules, the Ninth Circuit held that the MVRA does not confer on victims the right to appeal from a district court’s restitution order. Similarly, the court of appeals held that nothing in the Crime Victims’ Rights Act, 18 U.S.C. § 3771 (CVRA), authorized victims themselves to pursue an appeal based on their restitution rights. Instead, the Ninth Circuit held that victims may pursue a petition for a writ of mandamus regarding their rights, including the right to restitution under the MVRA. Because the CVRA’s statutory writ process satisfies due process requirements, the Ninth Circuit held that victims may not directly appeal a restitution order. Consequently, the Tribe’s appeal of the restitution order was dismissed.
United States v. Osman, 853 F.3d 1184 (11th Cir. 2017)
Defendant pled guilty to one count of production of child pornography, one count of distribution of child pornography, and one count of possession of child pornography in connection with his conduct regarding a very young child-victim relative. As part of the plea agreement, defendant agreed to make “full restitution” to the child-victim. At the restitution hearing, defendant challenged the government’s assessment of the child-victim’s future counseling needs as speculative, in light of the child-victim’s very young age. The government acknowledged that the restitution estimate “necessarily would be speculative to some extent in a case involving an infant victim” but nevertheless maintained the propriety of restitution. In support of the government’s position, a licensed counselor who specialized in working with child-victims of sexual abuse and domestic violence testified regarding the child-victim’s likely future counseling needs, based on a meeting with the child-victim’s mother and “many years of research about the consequences of early adverse life events and her extensive experience counseling victims of abuse.” The trial court ordered defendant to pay $16,250 in restitution, and defendant appealed the restitution order. On appeal, the Eleventh Circuit joined its sister circuits in holding that restitution in cases involving child pornography “may include restitution for future therapy expenses as long as the award reflects a reasonable estimate of those costs and is based on record evidence.” The Eleventh Circuit also rejected defendant’s challenge to the restitution order, finding the counselor’s testimony sufficient to provide a “reasonable estimate” of the child-victim’s counseling needs and estimates of the costs associated with that counseling. The Eleventh Circuit also rejected defendant’s argument that the child-victim should later seek restitution for “losses not ascertainable at the time of the original restitution award.” Because a reasonable estimate of the child-victim’s losses was available, the court of appeals concluded, these costs were properly included in restitution. In addition, the Eleventh Circuit noted that Congress did not intend “to create such a cumbersome procedure for victims to receive restitution.” The restitution order was affirmed.
United States v. Minard, 856 F.3d 555 (8th Cir. 2017)
Defendant was arrested after being found in possession of items—including firearms—that had been reported stolen during several burglaries. Defendant pleaded guilty to being a felon in possession of a firearm, and the trial court sentenced him to the maximum 120-month sentence. Defendant filed a Rule 35 motion, challenging the sentence and requesting a re-sentencing before a different judge. Defendant argued that during sentencing one of the burglary victims addressed the court and explained that his wife will “hear something after I’ve left for work in the morning, you know, she’s never going to get by what’s happened to us because of his irresponsible actions.” Following the victim impact statement, the judge stated: “I understand exactly what you’re saying. It happened to me, too, when my kids were little, so I know exactly what you’re talking about.” Defendant claimed that the judge’s statement revealed bias, and it was because of this bias that he received the maximum sentence. The district court denied the motion without a hearing, and defendant appealed. The appellate court rejected defendant’s claim on three grounds. First, because defendant did not object or move for recusal at sentencing, the judge’s failure to recuse him/herself following the statement must rise to the level of plain error. The court reasoned that it could not find any case in which Rule 35 relief was granted because the sentencing judge failed to recuse sua sponte. Second, the court explained that a judge is presumed impartial and the burden of proving impartiality requires evidence of “a deep-seated favoritism or antagonism that would make fair judgment impossible.” The court found the judge’s spontaneous expression of empathy for a crime victim following his impact statement did not meet that burden. Third, the court noted that pursuant to the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, crime victims have the statutory rights “to be reasonably heard at any public proceeding in the district court involving … sentencing,” and “to be treated with fairness and with respect for the victim’s dignity and privacy.” The court found that the judge’s single statement that was directed at the crime victim at the end of the victim’s stressful appearance furthered the policy of encouraging crime victims to participate in the criminal justice process. For these reasons the court affirmed the judgment of the district court.