IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Comes now the Petitioner, Nathan Simons, by and through his attorneys, Russell P. Butler * and Catherine Chen, Maryland Crime Victims Resource Center, Inc., and E. Joel Wesp *, who pursuant to Rule 21 of the Federal Rules of Appellate Procedure and Local Rule 21 state as follows: EXPEDITED REVIEW PER STATUTE Pursuant to 18 U.S.C. 3771(d)(3), this Court must take up and decide this application forthwith within seventy-two (72) hours after this petition has been filed. (Emphasis added.) RELIEF SOUGHT Petitioner Nathan Simons requests that this Honorable Court issue a writ of mandamus under 18 U.S.C. 3771 directing the United States District Court for the Southern District of Ohio, Eastern Division, to immediately allow Petitioner s counsel access to the file regarding United States v. Christopher McPherson, a/k/a Christopher Keifer, case number 2:08CR162, in order for Petitioner to enforce his rights under the Crime Victims Rights Act, the Mandatory Victims Restitution Act, and the Constitution of the United States of America, or, in the alternative, direct the district court to stay the proceedings and to hold an expedited hearing on the Petitioner s motion. Petitioner also requests that this Honorable Court * Counsel of record in this Court.
determine if the United States District Court for the Southern District of Ohio, Eastern Division made appropriate findings behind the sealing of the case pursuant to the mandates of the Constitution of the United States of America. The requested writ is necessary for Petitioner to enforce his rights under the Crime Victims Rights Act, the Mandatory Victims Restitution Act, and the Constitution of the United States of America. ISSUES PRESENTED I. Whether the district court violated the rights of the victim under the Crime Victims Rights Act and/ or the Mandatory Victims Restitution Act. II. Whether the district court violated the rights of the victim under the Constitution of the United States of America. FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED 1 On May 30, 2008, Christopher E. McPherson, a/k/a Christopher E. Keifer (hereinafter Defendant ) was arrested on Ohio State charges, including grand theft. At that time, Secret Service Agent Nicholas Shelton and Detective Rick Meadows III spoke with Petitioner, Nathan Simons, regarding checks drawn and accounts created by the Defendant in Mr. Simons name. In June 2008, Secret Service Agent Shelton informed Mr. Simons that the state of Ohio would be dropping its charges, and that the federal government 1 See Affidavit of Nathan Simons attached hereto and incorporated by reference as Exhibit A as presented to the district court for a more comprehensive explanation of facts. 2
would be charging the Defendant for, among other charges, bank fraud. Agent Shelton asked if Mr. Simons would testify that it was not he who had written checks for $10,000.00 from a Swift Financial account. Mr. Simons agreed. After Mr. Simons signed a document in Agent Shelton s presence, Agent Shelton confirmed that the signatures on the checks appeared to be forged, and not that of Mr. Simons. On June 9, 2008, the United States filed a criminal complaint against the Defendant. As of August 25, 2008, more than two months after the complaint was filed, the entirety of the file was sealed, including even the case number on the matter. Mr. Simons and his two minor sons lost $36,730.00 as a direct result of Defendant s fraudulent scheme and conspiracy. The Defendant stole Mr. Simons identity and opened numerous accounts in Mr. Simons name, incurring $428,524.25 in charges. Mr. Simons has spent seventy-two hours working to clear a fraction of these charges, and anticipates spending countless more in his quest to clear those charges that remain. Due to Defendant s fraudulent actions, Mr. Simons resigned a position he had for approximately six years at Abbott Laboratories in order to work for the Defendant; Mr. Simons was unemployed from the date of the Defendant s arrest, May 30, 2008, until September 2, 2008. 3
Mr. Simons counsel has attempted to access information regarding the indictment, plea bargain and sentencing date via the United States Party/ Case Index (hereinafter PACER ). 2 As of October 3, 2008, the district court clerk informed counsel that the matter was sealed, and that not even a case number could be provided to counsel. On November 5, 2008, counsel filed a motion to unseal requesting that the district court allow Petitioner access to the matter in order to enforce his rights under the Crime Victims Rights Act. 3 The district court has not ruled on the motion to unseal. Neither Mr. Simons nor his counsel can obtain any information about the Defendant s alleged plea or the sentencing hearing date. STANDARD OF REVIEW Under the Crime Victims Rights Act (hereinafter CVRA ), when a victim attempts to assert his or her rights provided by the statute, [t]he district court shall take up and decide any motion asserting a victim s right forthwith. If the district court denies the relief sought, the Movant may petition the court of appeals for a writ of mandamus. 18 U.S.C. 3771(d)(3) (emphasis added). While the district 2 See Affidavits of Russell P. Butler, Esq. and Bridgette Harwood attached hereto and incorporated herein by reference as Exhibits B and C, respectively for more comprehensive explanation of counsel s efforts to attempt to gain access to information regarding United States v. Christopher McPherson, a/k/a Christopher Keifer, case number 2:08CR162 and assert Mr. Simon s rights in the district court. 3 See motion to unseal attached hereto and incorporated by reference as Exhibit D as presented to the district court. 4
court has not ruled, its failure to decide the matter forthwith is a de facto denial of rights. Routinely, as the writ is one of the most potent weapons in the judicial arsenal, three conditions must be satisfied before it may issue. Cheney v. United States Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380 (2004), citing Kerr v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 403 (1976). Supra. However, the provision to victims of crime of the right to petition for a writ of mandamus establish[es] a procedure where a crime victim can, in essence, immediately appeal a denial of their rights by a trial court to the court of appeals, which must rule forthwith. Simply put, the mandamus procedure allows an appellate court to take timely action to ensure that the trial court follows the rule of law set out in this statute. 150 Cong. Rec. S4262 (April 22, 2004 (statement of Sen. Feinstein)) (emphasis added); see also Moore s Fed. Prac. 3d 321.14[1] (2008) ( because Congress has chosen mandamus as the mechanism for review under the CVRA, the victim need not make the usual threshold showing of extraordinary circumstances to obtain mandamus relief. ). Remedial legislation should be construed broadly to effectuate its purposes. Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). Because the CVRA is remedial legislation, this provision allowing for victims to petition the court of appeals for a writ of mandamus is broadly construed to allow victims of crime to 5
petition for a writ of mandamus under a lower standard of review, the ordinary appellate standard of review. It is clear... that a petitioner seeking relief pursuant to the mandamus provision set forth in 3771(d)(3) need not overcome the hurdles typically faced by a petitioner seeking review of a district court determination through a writ of mandamus. In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562 (2d Cir. 2005). The Second Circuit based its opinion on the plain language of the CVRA as indicative that Congress chose a petition for mandamus as a mechanism by which a crime victim may appeal a district court s decision denying relief sought under the provisions of the CVRA. Id. Reviewing a similar mandamus petition, the Ninth Circuit also found that the CVRA provides for expedited review of petitions for writ of mandamus and requires a reasoned decision in case the writ is denied. Kenna v. United States Dist. Ct. for the Central Dist. of California, 435 F.3d 1011, 1017 (9 th Cir. 2006) (emphasis added). The court also found that the CVRA mandamus review process is a unique regime that does, in fact, contemplate routine interlocutory review of district court decisions denying rights under the statute. See id (emphasis added). There, the Ninth Circuit found that, because of this unique regime created by the CVRA for mandamus petitions, we must issue the writ whenever we find that the district court s order reflects an abuse of discretion or legal error. Id. 6
In an unpublished opinion, the Third Circuit concurs that the CVRA establishes a different standard of review of mandamus petitions for victims of crime: mandamus relief is available under a different, and less demanding, standard under 18 U.S.C. 3771. In re Walsh, 229 Fed.Appx. 58 at *2 (3 rd Cir. 2007) (emphasis added). The Fourth Circuit, in another unpublished opinion, also weighed in on the side of the Second and Ninth Circuits. In re Doe, 264 Fed.Appx. 260 at *2 (4 th Cir. 2007). Although the court did not decide the issue, because it determined that the Petitioner was not entitled to rights under the CVRA, it did indicate that Id. mandamus petitions filed under the CVRA are not necessarily subject to this stringent standard of review. In creating the CVRA, Congress specifically chose a mandamus petition as the appropriate vehicle for appellate review of an order denying a crime victim s assertion of a right protected thereunder. See 18 U.S.C. 3771(d)(3). Because the use of mandamus in this context results from a deliberative legislative choice and not adroit or devious pleading, it is not clear that a petitioner under the CVRA should be subjected to the same stringent standard of review as traditional petitioners. Blatantly ignoring the legislative history and declining to consider the indepth analysis of the statutory language and history by the Second and Ninth Circuits in analyzing the statutory language of the CVRA, the Tenth Circuit found that ordinary mandamus standards apply when a victim petitions for review under 18 U.S.C. 3771(d)(3). In re Antrobus, 519 F.3d 1123, 1125. The Tenth Circuit 7
based its decision to respectfully disagree... with the decisions of our sister courts on the rationale that Congress could have drafted the CVRA using language providing for immediate appellate review rather than the term mandamus. Id. at 1124-1125. Shortly thereafter, the Fifth Circuit sided with the Tenth Circuit in denying the use of the ordinary appellate standard to review a victim s petition for a writ of mandamus under the CVRA, tersely stating only that the court agreed with the Tenth Circuit for the reasons cited in Antrobus. In re Dean, 527 F.3d 391, 394 (5 th Cir. 2008). Here, although the district court has not ruled, it clearly has not taken up and decided Mr. Simon s motion forthwith, nor has the Court ensured that the crime victim has been afforded his rights, as required by the CVRA. See 18 U.S.C. 3771(d)(3) ( The district court shall take up and decide any motion asserting a victim s right forthwith. ). As such, Petitioner submits that this Court should follow the authority of the Second, Ninth, Third and Fourth Circuits and apply an ordinary appellate review standard of this petition as mandated by the plain language and legislative history of the CVRA. Although Petitioner is a victim entitled to rights under the Mandatory Victims Restitution Act (hereinafter MVRA ) (18 U.S.C. 3663A) and CVRA, including the right to petition for a writ of mandamus under ordinary appellate 8
standards of review, Petitioner still qualifies for mandamus under the ordinary Cheney standards of review. The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law. 28 U.S.C. 1651(a). Although the writ of mandamus is a drastic and extraordinary remedy reserved for really extraordinary causes, the matter before this Court qualifies easily as an extraordinary cause. Cheney, 542 U.S. at 380. The Defendant has placed the victim in a situation which the district court has further exacerbated, a situation that satisfies all three conditions enumerated in Cheney. Id. at 380-81, citing Kerr, 426 U.S. 394. First, the party seeking issuance of the writ must have no other adequate means to attain the relief he desires. See id. Second, the petitioner must satisfy the burden of showing that his right to issuance of the writ is clear and indisputable. See id. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances. See id. Before Cheney was decided, this Circuit found that An error of law, standing alone, is not sufficient to warrant mandamus. However, mandamus can be used to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. In 9
re Parker, 49 F.3d 204, 207 (6 th Cir. 1995). In this case, the district court has clearly and indisputably failed to act in the face of the CVRA s mandate to do so. Petitioner is entitled to mandamus under either the ordinary appellate standard of review anticipated by the CVRA or under the traditional mandamus standard of review. REASONS WHY THE WRIT SHOULD ISSUE I. THE DISTRICT COURT IMPROPERLY DENIED PETITIONER S RIGHTS UNDER THE CRIME VICTIMS RIGHTS ACT AND THE MANDATORY VICTIMS RESTITUTION ACT. A. PETITIONER IS A VICTIM AS DEFINED BY BOTH THE CVRA AND MVRA AND IS THEREFORE ENTITLED TO THE RIGHTS ENUMERATED THEREUNDER. Mr. Simons is a victim of the Defendant. Based on Mr. Simons involvement with law enforcement, the events leading up to Defendant s arrest, and the broad definition of victim under the CVRA and MVRA, Mr. Simons is a victim, as he was directly harmed by the Defendant s scheme, conspiracy and pattern. 18 U.S.C. 3663(a)(2), 3663A(a)(2) ( The term victim means 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. ). Under the CVRA, The term crime victim means a 10
person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia. 18 U.S.C. 3771(e). The Eleventh Circuit recently reviewed 18 U.S.C. 3771(e), examining the definition of victim under the CVRA. The court ruled that to determine who qualified as a victim, it was necessary to first identify the behavior constituting commission of a Federal offense, then to identify the direct and proximate effects of that behavior on parties other than the United States. And if the criminal behavior caused a party direct and proximate harmful effects, then the party is a victim under the CVRA. In re Janis W. Stewart, 2008 WL 5265344 at 2 (11 th Cir. 2008). Under the MVRA, the term victim means 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 what 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. 3663A(a)(2). See also, U.S. v. Seligsohn, 981 F.2d 1418, 1422 (3d Cir. 1992). Similarly, the Seventh Circuit provides that restitution awards under the MVRA are applicable to three distinct circumstances: (1) where a victim is directly harmed by the offender s specific conduct that is the basis of the offense of the conviction; (2) where a victim is directly harmed by the 11
offender s conduct in the course of committing an offense that involves as an element a scheme, conspiracy or pattern; and (3) where the parties so agreed in a plea agreement. United States v. Randle, 324 F.3d 550, 556 (7 th Cir. 2003). Here, Mr. Simons was harmed by the Defendant in the course of Defendant s scheme, conspiracy and pattern to defraud Mr. Simons, his sons, and numerous banks to enrich his own coffers. Admittedly, the matter here is unique, because the case has been completely sealed. Because the matter has been sealed, there is no way for Mr. Simons to know whether he is a victim of the charge to which the Defendant pled guilty. However, the Defendant was arrested as a result of the fraudulent accounts he opened using Mr. Simons name. The Secret Service Agent, Nicholas Shelton, investigating the Defendant reported to Mr. Simons that the Defendant would be charged with bank fraud. Agent Shelton asked Mr. Simons if he would testify that it was not Mr. Simons who had written checks to the McPherson Property Group from a Swift Financial account. Upon observing Mr. Simons signature, Agent Shelton confirmed that the signatures on checks and requests to open accounts were clearly forged. The Defendant defrauded Mr. Simons, obtaining hundreds of thousands of dollars of credit using Mr. Simons personal information and tricked Mr. Simons and his sons into purchasing shares of a fraudulent corporation. To date, Mr. 12
Simons continues to wrestle with creditors, and has devoted significant time trying to remedy the situation and restore his financial circumstances to what they were before the Defendant destroyed them. See 18 U.S.C. 3663(b)(6), as amended on May 14, 2008 ( in the case of an offense under sections 1028(a)(7) or 1028A(a) of this title, restitution may be ordered from a defendant to a victim in an amount equal to the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense ). 4 Even if Mr. Simons is not named as a victim under the indictment, the Eleventh Circuit found that The CVRA does not limit the class of crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the charging document. The statute, rather, instructs the district court to look at the offense itself only to determine the harmful effects the offense has on parties. Under the plain language of the statute, a party may qualify as a victim, even though it may not have been the target of the crime, as long as it suffers harm as a result of the crime s commission. Stewart, 2008 WL 5265344 at 3. The Eleventh Circuit held that the petitioners in the case before it were victims under the CVRA although they were not mentioned in the information, because the defendant s criminal activity directly and proximately harmed them. See id. Finally, Senator Jon Kyl, as the primary drafter of the CVRA, made extensive comments regarding the legislative intent behind the statute. Regarding 4 Under 18 U.S.C. 3771(a)(6), a victim is entitled to full restitution as provided by law. 13
subsection (e), in which crime victim is defined, Senator Kyl indicated that This 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. 150 Cong. Rec. S10912 (October 9, 2004 (statement of Sen. Kyl)). The facts surrounding the criminal matter in the district court, the plain language of the CVRA as well as its legislative history obligate a determination that Mr. Simons is a victim of the Defendant and is entitled to the rights enumerated in the CVRA and the MVRA. Mr. Simons motion filed in the district court requests access to the case file so that Mr. Simons can enforce his rights under the CVRA and MVRA. As such, the motion raises a victims rights issue as covered by the CVRA mandating the district court to act on the motion forthwith. 18 U.S.C. 3771(d)(3) ( The district court shall take up and decide any motion asserting a victim s right forthwith. ). The CVRA and the MVRA obligate a determination that Mr. Simons is a victim of the Defendant and is entitled to the rights enumerated in the CVRA. B. THIS COURT SHOULD ORDER THE DISTRICT COURT TO COMPLY WITH THE MANDATE OF THE CRIME VICTIMS RIGHTS ACT TO ISSUE A DECISION FORTHWITH ON PETITIONER S MOTIONS ASSERTING RIGHTS AND ALSO TO ALLOW VICTIM S COUNSEL ACCESS THE CRIMINAL CASE FILE. 14
The district court itself is obligated to ensure that Mr. Simons is afforded the rights subscribed in subsection (a) of Section 3771. 5 18 U.S.C. 3771(b)(1) ( In any court proceedings involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a). ). To this end, the CVRA plainly states, The district court shall take up and decide any motion asserting a victim s right forthwith. 18 U.S.C. 3771(c)(3) (emphasis added). Mr. Simons counsel filed a motion to unseal the matter in order to enforce Mr. Simons rights on November 5, 2008, almost three months prior to this Petition. After some initial discussions to schedule a hearing and to inquire as to the filing of opposition papers, the Court has had no communications with Mr. Simons counsel. Counsel requested a copy of opposition papers that were not served on him, and was informed by the court that certain parts may need to be redacted, but that the court could probably provide a copy to counsel. See (Russell P. Butler Aff. Ex. B at 3). The last communication from the Court indicated only that counsel should contact the Deputy Clerk who has since not returned counsel s telephone calls or e-mail. See id. 5 18 U.S.C. 3771(b) (1) refers to the following rights under 3771 (a) which enumerate the eight rights granted to a crime victim: (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; and (8) The right to be treated with fairness and with respect for the victim s dignity and privacy. 15
The CVRA indicates, If the district court denies the relief sought, the Movant may petition the court of appeals for a writ of mandamus. 18 U.S.C. 3771(d)(3). Here, although the district court has not explicitly denied the relief sought, it also has stopped all communication with Mr. Simons counsel, failed to schedule a hearing and refused to provide Mr. Simons counsel a copy of an ex parte answer filed in response to Mr. Simons motion. This abrupt termination of communication constitutes a de facto violation of Section (d)(3) of the CVRA and the result is a continuing denial of Mr. Simons rights under Section (a) of the CRVA and the district court s obligations under Section (b)(1) the CVRA. Mr. Simons continues to wait in limbo, wrestling with the morass of creditors, not knowing if the district court will provide him his rights under law. Significantly, these rights are time-sensitive; they must be afforded by the district court before the trial or plea and the sentencing. Counsel believes that the Defendant pled guilty in this matter during the fall of 2008, and is incarcerated pending sentencing. Mr. Simons has no other venue to which he may address his requests: (1) to be reasonably protected from the Defendant; (2) to be notified of the sentencing date; (3) to not be excluded from the sentencing; (4) to be reasonably heard at the plea and sentencing; (5) to confer with the attorney for the Government in the matter; (6) to be provided with full and timely restitution as provided by law; (7) for proceedings free from unreasonable delay and (8) to be 16
treated with fairness and respect for his dignity and privacy. 18 U.S.C. 3771(a). Mr. Simons has, up to this point, asserted his rights only to wait and wait for the district court to take action. However, as a presumptive sentencing date fast approaches, possibly as early as February 2009, it is becoming increasingly clear that the district court will not do anything unless its hand is forced. If the Defendant is sentenced without Mr. Simons participation, any such sentence would be an additional denial to Mr. Simons of his rights under the CVRA and effectively subject him to additional victimization beyond what he suffered at the hands of the Defendant in the first place. Any attempt to enforce his rights once the district court has sentenced the Defendant will certainly be argued as moot. As such, Mr. Simons has no other adequate means to attain the relief he desires, and prompt judicial action by this Court is required. If a plea has in fact occurred, Mr. Simons rights will already have been violated and each day without relief further exacerbates such violation. Mr. Simons has rights granted to him under the CVRA and MVRA, and he is merely requesting that those rights be enforced under the rule of law. C. BY RESTRICTING PETITIONER S ACCESS, THE DISTRICT COURT IS DENYING PETITIONER S RIGHTS UNDER THE CRIME VICTIMS RIGHTS ACT AND THE MANDATORY VICTIMS RESTITUTION ACT. Federal criminal procedure and the CVRA explicitly provide to victims of crimes the rights to be notified of, not to be excluded from, to be heard at and to 17
request restitution at criminal proceedings relating to offenses committed against them. See, e.g., 18 U.S.C. 3510, 3663A, and 3771. The CVRA plainly states that Mr. Simons has the right not to be excluded from any 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. 18 U.S.C. 3771(a)(3). Mr. Simons has requested that the matter be opened to him in order to enforce his rights including that he be given notice of the date of the sentencing at which he has requested to be heard and to ask for restitution. Mr. Simons may have already been improperly excluded from a plea hearing in this matter and with his right to confer with the Government, because the district court s sealing of the matter denied him any notice and opportunity to attend. He is requesting that his remaining rights be accorded in full. It may be argued that because the proceeding has been sealed, it has been removed from the spectrum of the CVRA. However, the CVRA clearly states that In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a) [Rights of crime victims]. 18 U.S.C. 3771(b)(1) (emphasis added). Although paragraphs two, three and four of subsection (a) include language limiting those rights to public court proceedings, subsection (b) requires that the 18
court shall not only ensure that the crime victim is afforded [his or her] rights described in subsection (a), but also requires that The reasons for any decision denying relief under this chapter shall be clearly stated on the record. 18 U.S.C. 3771(b)(1). Therefore, regardless of the public court proceedings language in subsection (a), the district court is required to (1) ensure that Mr. Simons is afforded his rights as described in subsection (a) and (2) consider reasonable alternatives to the exclusion of Mr. Simons from the criminal proceedings. The plain statutory language indicates that Congress clearly intended that victims are permitted to be present at proceedings other than grand jury proceedings. Moreover, the matter was sealed at a point after Mr. Simons should have been notified of the proceedings. The Government and the district court were under obligations with respect to Mr. Simon s rights, before the matter was sealed in the fall of 2008, to notify or ensure Mr. Simons of his rights to participate, and they both failed to comply with those obligations. This continuing violation has only been exacerbated by the affirmative exclusion of Mr. Simons in the sealing of the matter. Furthermore, a United States district court shall not order any victim of an offense excluded from the trial of a defendant accused of that offense because such victim may, during the sentencing hearing, make a statement or present any information in relation to the sentence. 18 U.S.C. 3510. Here, Congress did not 19
limit this right to proceedings that are public. Sealing the matter without making an exception for Mr. Simons is a clear violation of this provision. The language of subsection (a)(6) also clearly does not limit the right to full and timely restitution to public proceedings. The language plainly states, A crime victim has the following rights: the right to full and timely restitution as provided in law. 18 U.S.C. 3771(a)(6). In an examination of the floor debate of the CVRA, Senator Kyl suggested in a colloquy that the CVRA would be applicable to public proceedings, thus excluding grand jury proceedings and perhaps where, upon request by the government or defense, the court orders the proceedings closed, for example, in organized crime or national security cases. 150 Cong. Rec. S10910 (October 9, 2004) (statement of Sen. Kyl). However, even if organized crime or national security were possibly implicated in this matter, the language of the CVRA plainly mandates that the district court ensures that Mr. Simons is afforded the rights described in subsection (a). 18 U.S.C. 3771. Again, an entirely reasonable alternative to sealing the entire matter would be to permit Mr. Simons and his counsel access to the matter to enforce Mr. Simons rights under the CVRA, the MVRA, and the United States Constitution. Even if the district court validly decided to seal the matter because organized crime or national security was implicated, the CVRA plainly states that The 20
reasons for any decision denying relief under this chapter shall be clearly stated on the record. 18 U.S.C. 3771(b)(1). Neither Mr. Simons nor his counsel has been provided with any reason for denying Mr. Simons requested relief. Senator Kyl emphasized the importance of this language stating that: I would also like to comment on (b), which directs courts to ensure that the rights in this law be afforded and to record, on the record, any reason for denying relief of an assertion of a crime victim. This provision is critical because it is in the courts of this country that these rights will be asserted and it is the courts that will be responsible for enforcing them. Further, requiring a court to provide the reasons for denial or relief is necessary for effective appeal of such denial. 150 Cong. Rec. S10911 (October 9, 2004) (statement of Sen. Kyl). Clearly, the CVRA mandates the district court to: (1) issue a decision forthwith regarding Mr. Simons request to enforce his rights under the CVRA and, if the decision denies Mr. Simons request, then (2) provide the reasons for the denial on the record, and (3) also to treat victims of crime with fairness. The legislative history of the CVRA further indicates that the statute encompasses due process rights of victims of crime. Senator Kyl stated, regarding subsection (a)(8) of 18 U.S.C. 3771: The broad rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct government agencies and employees, whether they are 21
in executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them due process. 150 Cong. Rec. S10911 (October 9, 2004) (statement of Sen. Kyl). Orders issued without legal basis, conflicts of interest, and generally mysterious conduct reflect exactly the sort of sloppy adjudication that at thorough district court proceeding, i.e., due process, is meant to avoid. United States v. Perry, 360 F.3d 519, 526 (6 th Cir. 2004). Under the MVRA, Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense. 18 U.S.C. 3663A(a)(1). Subsection (c) limits mandatory restitution to convictions of or plea agreements relating to charges for any offense that is... an offense against property under... [T]itle [18]... including any offense committed by fraud or deceit. Certainly, the charges levied against, and to which the Defendant pled guilty, fall within Title 18 Crimes and Criminal Procedure. Mr. Simons qualifies as a victim under the MVRA definition: 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. 22
18 U.S.C. 3663A(a)(2). The Defendant not only illegally created hundreds of thousands of dollars of debt in Mr. Simons name, but also stole through trickery, deceit and fraudulent statements, tens of thousands of dollars from Mr. Simons and his sons, thereby causing Mr. Simons direct and proximate harm. Even if the district court found that Mr. Simons rights under the CVRA were limited due to, for example, organized crime or national security reasons, the MVRA plainly states that Notwithstanding any other provisions of law,... the court shall order... that the defendant make restitution to the victim of the offense. 18 U.S.C. 3663A(a)(1) (emphases added). Congress included no limitations on the clause to public proceedings. Mr. Simons is entitled to restitution in this matter under both the CVRA and the MVRA, and notwithstanding any orders sealing the matter, the court should afford Mr. Simons restitution under law. Furthermore, in the entirely hypothetical possibility that the matter was sealed due to the implication of organized crime or national security, the district court could allow access to Mr. Simons and his counsel by including them in the sealing order. II. THE DISTRICT COURT VIOLATED THE RIGHTS OF MR. SIMONS UNDER THE CONSTITUTION OF THE UNITED STATES OF AMERICA. A. PETITIONER HAS CONSTITUTIONAL RIGHT OF ACCESS UNDER THE FIRST AMENDMENT AND COMMON LAW AS WELL AS DUE PROCESS RIGHTS UNDER THE FIFTH AMENDMENT. 23
Mr. Simon has a First Amendment right of access to public prosecution. A presumption of openness inheres in the very nature of a criminal trial under this Nation s system of justice. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573 (1980). This presumption of openness certainly extends to the matter herein. In Richmond Newspapers, the Supreme Court noted that the trial judge made no findings to support closure; no inquiry was made as to whether alternative solutions would have met the need to ensure fairness; there was no recognition of any right under the Constitution for the public or press to attend the trial. Id. at 580-81. The Court held that Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public. See id. The Supreme Court vacated the judgment of a California court of appeal stating, not only was there a failure to articulate findings with the requisite specificity but there was also a failure to consider alternatives to closure and to total suppression of the transcript. Press-Enterprise, 464 U.S. at 513. Similarly here, there is no record whatsoever available to Mr. Simons to ascertain the basis on which the district court has excluded him from these proceedings. Where, as in the present case, the State attempts to deny the right of access in order to inhibit the disclosure of sensitive information, it must be shown that the denial is necessitated by a compelling governmental interest, and is 24
narrowly tailored to serve that interest. Globe Newspaper Company v. Superior Court for the County of Norfolk, 457 U.S. 596, 606-07 (1982). The Constitution of the United States demands that, at a minimum, the district court considers alternatives to sealing the matter to meet the need to ensure fairness, including the possibility of opening the matter solely to Mr. Simons and his counsel, or, if the district court seals the matter against the victim, it must demonstrate that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest. See id. Again, if a compelling governmental interest exists, inclusion of Mr. Simons and his counsel in the sealing order to ensure that they do not disclose information to the public is an entirely viable alternative that would satisfy the mandates of the CVRA, the MVRA and the Constitution as well as safeguarding the interests of the government and the Defendant. Further, as Mr. Simons continues to struggle with not only the emotional impact of being the Defendant s victim but also the extreme financial hardship into which the Defendant has plunged him, this Circuit should consider that public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct. Press- Enterprise, 464 U.S. at 509. 25
Not only does Mr. Simons have a First Amendment right of access to the matter, he also has due process rights under the Fifth Amendment, as recognized by this Court in United States v. Perry, 360 F.3d 519, 525 (6 th Cir. 2004). In Perry, this Circuit found that, because in Ohio, judgment liens create property interests,... and the federal constitution prevents the deprivation of these Ohio property interests without due process..., once Intervenor obtained a valid lien under state law... she also obtained a property right of constitutional magnitude. Id. Here, the district court has blocked Mr. Simons from even attempting to establish that right by excluding him from the matter despite Mr. Simons due process rights guaranteed by the Constitution. B. THIS COURT SHOULD DETERMINE IF APPROPRIATE FINDINGS BEHIND THE SEALING OF THE CASE WERE MADE PURSUANT TO PRESS- ENTERPRISE V. SUPERIOR COURT OF CALIFORNIA IN ORDER TO PROVIDE PETITIONER THE OPPORTUNITY TO CHALLENGE THE APPROPRIATENESS OF THE ORDER AND PREVENT FURTHER VIOLATIONS OF MR. SIMONS RIGHTS UNDER THE CRIME VICTIMS RIGHTS ACT, THE MANDATORY VICTIMS RESTITUTION ACT AND THE CONSTITUTION OF THE UNITED STATES OF AMERICA. The CVRA has bestowed eight specific rights upon victims of crime which Mr. Simons is attempting to invoke invoking in district court. Additionally, the MVRA has provided to Mr. Simons a mandatory right to restitution. It is absolutely indisputable that Mr. Simons is entitled to enforcement of his rights under the CVRA and the MVRA beyond his rights under the First Amendment. By sealing the entire criminal case without providing the minimally requisite 26
factual findings, the district court has in effect extinguished several of Mr. Simons rights under the CVRA, and threatens to violate those few that remain under both the CVRA and MVRA. More than twenty years ago, the Supreme Court ruled that The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered. Press-Enterprise Company v. Superior Court of California, Riverside County, 464 U.S. 501, 510 (1984). Mr. Simons is unable to evaluate the appropriateness of the district court s decision to seal the matter, because he has no access to determine if the district court issued findings. More importantly, no record whatsoever is available to this Court to determine whether the closure order was properly entered. Id. In fact, the district court has failed to even respond to Mr. Simons, other than initial discussions with his counsel, nor has the district court provided to counsel docket entries or a copy of opposition papers to the motion filed for Mr. Simons asserting his rights in district court. Mr. Simons and his counsel have waited almost three months for a response from the district court. This Court, along with the direction to decide Mr. Simons motion, should order the district court to issue its findings for sealing the matter. The district court may not ignore the Constitutional requirements. 27
THE WRIT IS APPROPRIATE AND SHOULD ISSUE UNDER THE CIRCUMSTANCES. A writ here is entirely appropriate under the circumstances. If this Court fails to address Mr. Simons efforts to enforce his rights under the CVRA, MVRA, and the United States Constitution, the Court would erode the rule of law by denying Mr. Simons his rights and leave Mr. Simons drowning in the wake of the hundreds of thousands of dollars of credit card debt caused by the Defendant, and allow the Defendant to retain the tens of thousands of dollars that he obtained from Mr. Simons and his sons through trickery, deceit, and fraudulent statements. Justice begs the Court to issue a writ of mandamus which would order: A. The district court to forthwith follow its obligations including under 18 U.S.C. 3771(b) to ensure that Mr. Simons is afforded his rights under the CVRA, the MVRA and the Constitution of the United States in the prosecution of Mr. Keifer, a/k/a Mr. McPherson; B. The district court to unseal the entire record for failing to make the appropriate findings before the sealing of the entire case pursuant to the mandates of the Constitution of the United States of America. C. Such other and further relief as this Honorable Court deems just and proper. 28
Respectfully submitted, Russell P. Butler * Catherine Chen Maryland Crime Victims Resource Center, Inc. 1001 Prince George s Boulevard Suite 750 Upper Marlboro, Maryland 20774 301.952.0063 _/S/ E. Joel Wesp * 300 East Broad Street Suite 300 Columbus, Ohio 43215-3756 614.228.5822 * Counsel of record in this Court. 29