Case o' The Week: CVRA Sends Remand Our Way - Right to Counsel During Criminal Victims Rights Act Proceedings
We may be potted plants during CVRA allocutions -- but at least we’re constitutionally-required potted plants.
United States v. Yamashiro, 2015 WL 3634689 (9th Cir. June 12, 2015), decision available here.
Players: Decision by DJ Bell, joined by Judge Silverman and in part by Judge Bea. Big win for AFPD Gail Ivens, from the CD Cal Federal Public Defender's office.
Facts: Yamashiro, an investment advisor, defrauded his clients. Id. at *1. He pleaded guilty, and waived any right to appeal his convictions, “except a claim based on an involuntary plea. He also waived his right to appeal a sentence of 78 months or less.” Id. Probation recommended 63 months in the PSR.
On the date of sentencing Yamashiro successfully requested new counsel. Id. A fraud victim was then allowed to speak, although (now old) counsel was the only attorney there. Id. That victim detailed the devastating impacts of the fraud. Id.
New counsel came in, sentencing took place three months later, and the court gave Yamashiro 63 months – on each count, consecutive – for a total sentence of 189 months in prison.
Issue(s): “Yamashiro contends that the district court committed plain error when it allowed victim allocution to proceed without counsel present. Yamashiro did not object to this alleged error before the trial court. Accordingly, we review for plain error.” Id. “While conceding that sentencing is a critical stage and that [the victim’s] allocution occurred during a sentencing hearing, the government nevertheless contends that victim allocation is not a critical stage because crime victims have a nearly unfettered right to be heard at sentencing under the . . . CVRA . . and are not subject to cross-examination or other ‘trial-like’ confrontations.” Id. at *2.
Held: “Because the victim statements may influence the resulting sentence, substantial rights of the defendant may be affected. Victim allocation is thus part of the adversarial sentencing procedure.” Id. “Yamashiro’s Sixth Amendment right to counsel was violated by the court’s decision to proceed with victim allocution in the absence of trial counsel during a portion of Yamashiro’s critical sentencing stage.” Id. at *3. “[T]he denial of counsel during a portion of the allocution phase of the sentencing proceeding was structural error, that the error was complete when the right to counsel was denied, and that no additional of prejudice was required.” Id. at *3. “[ ] Yamashiro’s sentence will be vacated and the case will be remanded for resentencing.” Id.
Of Note: Defense counsel forced to grit their teeth and endure (occasionally exaggerated or inaccurate) victim allocutions know how unfair Criminal Victims’ Rights Act proceedings can be. There’s no right to cross-examine the victims, little preview of the statements, victims are often heavily coached by victim advocates or Probation Officers, and very emotional allegations are revealed right before sentencing. There’s little good to be said about the CVRA from the defense perspective, so it is notable and welcome that the Court acknowledges that core Sixth Amendment rights survive even in this abridged corner of the defendant’s procedural protections. See id. at *3 (“There is also a possibility of significant prejudice if counsel is not present to hear what was said [by the victim], how it was said, and how it was received by the court.”) Id.
How to Use: This is a very good plain error decision. There was no objection – either by the original counsel, or by new counsel, in the three months between the time the victim spoke, and the second part of the sentencing hearing. Notably, from dissenting Judge Bea’s perspective, that undermines the plain error claim by Yamashiro on appeal. See id. at *6. This is a great decision on many counts, but it is worth a particularly careful read for its substitution of “structural error” into the Olano third prong, and its conclusion that the four prong of plain error was satisfied. Id. at *3.
For Further Reading: “[T]he criminal justice system’s pursuit of ‘satisfaction’ or ‘closure’ on behalf of victims could impose severe costs on our society’s institutional arrangements and constitutional values.” For a thoughtful essay on how closure for victims can threaten dispassionate justice, see Vik Kanwar, Capital Punishment as ‘Closure’: The Limits of a Victim-Centered Jurisprudence here.
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Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org