United States District Judge Karon Owen Bowdre of the United States District Court for the Northern District of Alabama, Southern Division, recently authored a memorandum opinion having to do with the Crime Victims Right Act: 18 U.S.C. § 3771. United States of America v. Michael Heath Thetford, WL 1309851 (2013). The CVRA can be a pain for defense lawyers, prosecutors and the judges of the federal courts. Any defense lawyer who has been through a case involving a Ponzi scheme with multiple victims can attest to this.
[The Plea Agreement]
Michael Heath Thetford was an enthusiastic but unsuccessful criminal. Prior to appearing at a plea hearing before Judge Bowdre, he had already signed a binding plea agreement which set out the agreed upon sentences for each count in the indictment. Judge Bowdre describes the counts to which the defendant entered a plea of guilty and the punishment that he would face on each count, as follows:
The four-count Superseding Indictment charges Defendant Thetford as follows: Count One—felon in possession of firearms (18 U.S.C. § 922(g)(1)); Count Two—violations of gun registration law (26 U.S.C. § 5861(d)); Count Three—wire fraud (18 U.S.C. §§ 1343, 1349, and 2); and Count Four—identity theft (18 U.S.C. §§ 1028(a)(1) and 2). Because Thetford has three prior felony convictions that apparently would count as “violent felonies” for purposes of 18 U.S.C. § 924(e)(2)(B), the statutory sentence for Count One would be the mandatory minimum of at least 15 years and not more than life in prison. Defendant Thetford pled guilty to Counts One and Three and agreed to a binding sentence of 318 months and 240 months, respectively, to run concurrently with each other as well as concurrently with the sentences imposed in the two other cases to which he pled guilty. As part of a global plea agreement, Defendant Thetford also pled guilty in 2:12–cr–00349–KOB–HGD in this court to sexual exploitation of children (this Count also carries a mandatory minimum sentence of 15 years) and possession of child pornography, and to charges pending in the District of South Dakota, CR 11–30159–RAL. In this case and in the other case pending in this court, Defendant Thetford pled guilty to the highest offenses charged.
[The Unhappy Victims]
Even though Thetford was going to spend a lot of years in federal custody, two of his victims wrote a letter to Judge Bowdre. She describes how she became aware of their displeasure:
This matter comes before the court on a letter sent to chambers from “Victims: Jack Winslett and Shirley Winslett.” The court determined that the pro se letter should be treated as a Motion to Reopen the Plea under 18 U.S.C. § 3771(d) and directed that the letter be filed and docketed as such. (Doc. 73). Although the letter references numerous criticisms about conversations with Assistant U.S. Attorneys and F.B.I. agents in South Dakota and Alabama, the thrust of the complaint seems to be that the F.B.I. and U.S. Attorney failed to take possession of and return to them a boat stolen by Defendant Thetford, and that the Government failed to bring criminal charges against the third-party purchaser of the boat. For the reasons discussed in this Memorandum Opinion, the court must deny the Motion to Reopen the Plea.
In explaining her decision, Judge Bowdre writes, in part, the following:
[Crime Victims Have Rights]
Under the Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771, Congress provided that victims would have the right to be involved in the criminal justice process.
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The CVRA provides that victims of crime have certain rights. Those enumerated rights include the right to notice of and “not to be excluded from” any public court proceedings, and the right to be “reasonably heard” at public court proceedings, including plea and sentencing hearings; the right to confer with the government attorney; the right to restitution as provided by law; and the right to be treated with fairness and respect. 18 U.S.C. § 3771(a).
[A Victim’s Rights Don’t Override a Prosecutor’s Discretion]
These rights, however, do not extend to giving crime victims veto power over the prosecutor’s discretion. Indeed, CVRA itself expressly prohibits any encroachment on that discretion: “Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.” 18 U.S.C § 3771(d)(6). This language and the statute read as a whole demonstrate that “there is absolutely no suggestion in the statutory language that victims have a right independent of the government to prosecute a crime, set strategy, or object to or appeal pretrial or in limine orders. . . . In short, the CVRA, for the most part, gives victims a voice, not a veto.” Rubin, 558 F.Supp.2d at 418.
[The First Analysis]
As an initial matter, the court must determine whether the Winsletts qualify as “crime victims.” The CVRA, 18 U.S.C. § 3771(e), defines a crime victim as any person “directly and proximately harmed as a result of the commission of a Federal offense.”
The Eleventh Circuit established a two-part test to determine whether one qualifies as a crime victim in a given case: “[F]irst, we identify the behavior constituting ‘commission of a Federal offense.’ Second, we identify the direct and proximate effects of that behavior on parties other than the United States. If the criminal behavior causes a party direct and proximate harmful effects, the party is a victim under the CVRA.” In Re Stewart, 552 F.3d 1285, 1288 (footnote omitted). Under this test, the court finds that Jack Winslett and Shirley Winslett qualify as crime victims.
[The Second Analysis]
Next, the court must consider whether, as crime victims, the Winsletts have asserted a valid reason why the court should reopen the plea of guilty that Thetford entered in this case on March 11, 2013. Pursuant to 18 U.S.C § 3771(d)(5),
A victim may make a motion to re-open a plea or a sentence only if—
(A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied;
(B) the victim petitions the court of appeals for a writ of mandamus within 14 days; and
(C) in the case of a plea, the accused has not pled to the highest offense charged.
18 U.S.C. § 3771(d)(5) [emphasis added].
[The Winsletts’ Motion]
In their motion, the Winsletts mention that Jack Winslett did not have advance notice of the plea hearing, although Shirley Winslett did have at least one conversation prior to the taking of Thetford’s plea. As to Shirley Winslett, her motion to reopen the plea fails because she can not meet any of the three conjunctive prerequisites to reopening the plea, much less all of them: she did not assert and have denied her right to be heard at the plea hearing; she did not petition the court of appeals for mandamus within 14 days of March 11, 2013; AND, she cannot show that Thetford did not plead guilty to the highest offense charged. See 18 U.S.C. § 3771(d)(5). Assuming that Jack Winslett did not have notice of the plea, and assuming without deciding that lack of notice excuses the preconditions of (A) and (B) above, he likewise cannot meet the absolute requirement of (C) that the plea can only be reopened when the defendant did not plead to the highest offense charged.
[The Basis for the Denial of the Winsletts’ Motion]
Because Thetford pled guilty to the highest offense charged in this case, under the explicit language of the CVRA, the Winsletts are not entitled to reopen the plea. See Rubin, 558 F.Supp.2d at 423, 424. For this reason, the court will deny their motion.
[The Winsletts’ Remaining Issues and Rights]
Because the Winsletts complain about other matters affecting their rights that will continue to be issues as this case proceeds to sentencing, the court believes addressing them at this stage to be wise.
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Although not entitled to have the plea reopened, the Winsletts are still entitled to certain rights under the CVRA. The CVRA gives victims the right “not to be excluded” from public hearings, the “right to be reasonably heard” at sentencing, and the “right to full and timely restitution as provided by law,” among other protections. 18 U.S.C. § 3771(a) [emphasis added]. Sentencing in this case is set for June 27, 2013, at 2:30; victims may be present at that time in open court or submit written statements in advance for the court to consider and/or to read into the Record.
[The Winsletts’ Concerns Do Not Trump Prosecutorial Discretion]
As to their concerns about the perceived inadequacy of restitution, their concerns are premature. The court notes that in the plea agreement, the Government and Thetford agreed that the minimum amount of restitution payable to the Winsletts would be $2800 and left the matter of the total amount of restitution for the court to determine. Between now and sentencing, the Government will be gathering information for inclusion in the Presentence Report to assist the court’s consideration as to the total amount of restitution to impose in this case. Now is the time for the Winsletts to cooperate with the Government to document the actual value of the boat at the time Thetford stole it from them. See Rubin, 558 F.Supp.2d at 425–26 (explaining that the right under the CVRA to restitution only “as provided by law” relies on the provisions of the Mandatory Victim Restitution Act, which “does not require the victim’s seal of approval, or even solicitation of opinion beyond those facts that would assist the government’s required calculations.”); see also In Re W.R. Huff Asset Mgt. Co., 409 F.3d at 563–564 (recognizing limitations on restitution rights of victims).
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As to their complaint that the Government has not seized the boat or criminally charged the person who purchased it, the court understands the Winsletts’ frustration. However, the United States Attorneys, as officers under the direction of the Attorney General, retain broad prosecutorial discretion, and the CVRA does not transfer any of that discretion to victims.
[The Winsletts’ Civil Remedy]
Having recognized that the CVRA does not give the Winsletts any right to demand that the Government return their purloined boat to them or pursue criminal charges against the person in possession of their boat does not mean that they may not have a civil remedy available to them to recover their boat. Government prosecutors simply may not be commandeered to do their bidding.
My Thoughts
- Judge Bowdre’s opinion gives us nothing new. It is, though, a great overview of the rights that a crime victim does and does not possess.
- We all know that it is comforting to the defendant to have his friends and his family present in the courtroom in order that the sentencing judge can see that the defendant has a support group there with him or her. What is depressing is to see the benches filled with crime victims who are hoping that the court will order the defendant to be lynched there in the courtroom. Does the number of victims in the courtroom make a difference to the sentencing judge? I suppose that we will never know, but I am concerned that it does.
