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Ninth Circuit: Victims Have Right to Speak At Sentencing

Ninth Circuit: Victims Have Right to Speak at Sentencing

W. Patrick Kenna is a victim of fraud perpetrated by Moshe and Zvi Leichner, a father and son team who swindled scores of victims out of nearly $100 million. Mosche was convicted of wire fraud and money laundering and sentenced to 240 months in federal prison. At his sentencing, Kenna and several other victims spoke about how they lost their retirement savings, suffered business bankruptcy and had their lives ruined by the fraud. Three months later, Zvi was due to be sentenced before the same judge.
However, this time the judge refused to allow Kenna or any of the other victims to speak, stating that nothing could possibly be said that had not already been said at Moshe’s sentencing. Kenna filed a petition for a writ of mandamus in the Ninth Circuit Court of Appeals pursuant to the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771.
The Ninth Circuit noted that no other federal appellate court had ruled on the CVRA, and the two district courts that had addressed a victim’s right to speak at sentencing pursuant to the CVRA had come to opposite conclusions. The Court of Appeals determined that the statute was ambiguous as to whether the “right to reasonably be heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding” guaranteed a right to speak aloud or whether it could be limited by the judge to written and/or previously made statements.
Taking the legislative history of the CVRA into account – especially the statements made by the act’s sponsors, Senators Jon Kyl and Dianne Feinstein – the appellate court determined that the CVRA was intended to give victims the right to speak aloud at sentencing hearings and the district court had erred in preventing them from doing so in Zvi’s case.
The Ninth Circuit also noted that the CVRA contained special provisions for an expedited writ of mandamus to enforce crime victim’s rights under the CVRA, so such a petition was not subject to the usual stringent standards for mandamus actions. The Court of Appeals granted the petition, held that the district court had erred in refusing to allow the victims to speak aloud, and instructed the district court to accept as timely any motion to reopen sentencing filed within 14 days of the date of the petition. See: Kenna v. United States District Court for the Central District of California, 435 F.3d 1011 (9th. Cir. 2006).

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Related legal case

Kenna v. United. States District Court for the Central District of California