Case No. 1:21-mj-00007-SKO
ORDER OVERRULING OBJECTION TO VICTIM STATEMENT AT DETENTION HEARING
On January 25, 2021, an arrest warrant issued for Deven Richard Dearing ("Defendant") out of the District of Oregon. (ECF No. 1.) Defendant has been charged with attempted exploitation of a child in violation of 18 U.S.C § 2251(a) and (e); transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a); receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) and (b)(1); and possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). (Id.)
Defendant made an initial appearance on the complaint on February 8, 2021, was temporarily detained, and a detention hearing was set for February 10, 2021. (ECF No. 8.) On February 9, 2021, the parties stipulated to continuing the detention hearing and the hearing was continued to February 17, 2021. (ECF Nos. 6, 7.) On February 17, 2021, counsel Matthew Lemke appeared with Defendant by video; counsel Joseph Barton appeared by video for the Government. (ECF No. 8.) During the detention hearing, the Government sought to proffer the testimony of the victim's mother and Defendant objected on the ground that any factual statements must be under oath and subject to cross examination. The hearing was continued to February 19, 2021, and the parties were granted the opportunity to provide briefing on the issue of the victim's mother's testimony at the hearing. On February 18, 2021, Defendant filed a brief, and Defendant filed an opposition. (ECF Nos. 9, 10.)
The detention hearing continued on February 19, 2021. Counsel Matthew Lemke appeared by video with Defendant and counsel Barton appeared by video for the Government. Having considered the moving papers and the argument presented at the February 19, 2021 hearing, the Court overrules Defendant's objection for the reasons discussed below.
A. Right of Victim to be Heard at Detention Hearing
Defendant contends that if the victim's mother is allowed to testify at the hearing that an inquiry first be conducted to determine if she intends to offer factual statements or argument. Defendant asserts that if the mother is offering factual information, she should be subject to the same rules as any other pretrial detention witness, including being subject to cross examination. Defendant argues that the Court should try to harmonize the Bail Reform Act ("BRA") and Crime Victim's Rights Act ("CVRA") and subject any victim testimony to cross examination.
The Government counters that under the CVRA, the victim has a right to be treated with fairness and respect for her dignity and privacy and the court is to ensure that these rights are afforded to the victim in any court proceedings involving an offense against the victim. The Government argues that the victim's right to be reasonably heard in these proceedings should not be stifled by the threat of cross examination. The Government argues that there is no requirement that a victim be sworn in and subject to cross examination in this proceeding and the victim is not being called as a witness, but is making a statement pursuant to the CVRA. The Government further argues that the right of the victim to speak at the hearing does not potentially conflict with the BRA, but the two acts co-exist. The Government contends that Congress has deemed the type of information that can be provided is a victim's unsworn statement on the issue of release and the victim has the right to proffer about the impact that release would have.
The CVRA provides for the right of a victim to "to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C.. § 3771(a)(4). In any court proceeding involving an offense against the crime victim, the Court shall ensure that the victim is afforded the rights described in subsection (a). 18 U.S.C. § 3771(b). "The crime victim or the crime victim's lawful representative, and the attorney for the Government may assert the rights described in subsection (a)." 18 U.S.C. § 3771(d)(1). "Under 18 U.S.C. § 3771, victims are entitled to be heard in court, including on the question of whether the defendant is to be released or remanded" and among other things, victims have been given the opportunity to testify at a bail hearing." United States v. Epstein, 425 F.Supp.3d 306, 309-10 (S.D.N.Y. 2019), appeal withdrawn, No. 19-2221, 2019 WL 5390016 (2d Cir. Aug. 21, 2019); United States v. Turner, 367 F.Supp.2d 319, 333 (E.D.N.Y. 2005) (finding bail hearing implicated right of victim to be heard under the CVRA). Defendant does not argue that the victim's statement is not appropriately considered at the bail hearing.
A "crime victim" is "a person directly and proximately harmed as a result of the commission of a Federal offense. . . ." 18 U.S.C. § 3771(e)(2)(A). As relevant here, "[i]n the case of a crime victim who is under 18 years of age . . . the legal guardians of the crime victim . . . family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights under this chapter. . . ." 18 U.S.C. § 3771(e)(2)(b). Since the victim in this matter is a minor, under the CVRA her mother is entitled to be reasonably heard on her minor daughter's behalf at the bail hearing on the matter of release.
Defendant argues that the BRA and CVRA conflict and therefore any statement should be under oath and subject to cross examination. The Government counters that the two acts co-exist and there is no requirement that a victim's statement under the CVRA be sworn and subject to cross examination and requiring such would conflict with the purpose of the CVRA.
Under the BRA, the defendant "shall be afforded an opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing." 18 U.S.C. § 3142(f)(2(B). Both parties may proceed in the detention hearing by way of proffer and the live testimony of witnesses is not required. United States v. Cabrera-Ortigoza, 196 F.R.D. 571, 574 (S.D. Cal. 2000). There is no constitutional right for a defendant to confront witnesses at a detention hearing. United States v. Hernandez, 778 F.Supp.2d 1211, 1220 (D.N.M. 2011).
In a detention hearing, the magistrate judge determines the weight of the proffer or whether other information, evidence or testimony is warranted. The judicial officer presiding at the detention hearing is vested with discretion whether to allow defense counsel to call adverse witnesses. "The defense may not call witnesses who ordinarily would be expected to testify for the government at trial, unless they can proffer to the court in reasonable detail how they expect that testimony to negate substantial probability." The accused has no right to cross-examine adverse witnesses who have not been called to testify. The defendant does not have the right to choose whether to proceed "by proffer or otherwise" The Bail Reform Act of 1984 (18 U.S.C. 3142, et seq.) did not change preexisting law which allowed a judge to consider hearsay evidence when it was sufficiently reliable. Without a proffer from the defendant that the government's proffered information is incorrect, the magistrate judge is not required to allow the defendant to cross-examine the investigators and police officers.Cabrera-Ortigoza, 196 F.R.D. at 574 (internal citations omitted); see also United States v. Bibbs, 488 F.Supp.2d 925, 926 (N.D. Cal. 2007) (no Sixth Amendment right to confront witness at a detention hearing); Peterson v. California, 604 F.3d 1166, 1169-1170 (9th Cir. 2010) (denying defendant right of cross examination of witnesses at preliminary hearing does not violate the constitution). The Government "may proceed in a detention hearing by proffer or hearsay" and the defendant "has no right to cross-examine adverse witnesses who have not been called to testify." United States v. Winsor, 785 F.2d 755, 756 (9th Cir. 1986).
While Defendant argues that allowing a victim statement without requiring it to under oath and subject to cross examination would be inconsistent with the BRA, in this instance, the victim's mother is not being called by the Government to testify as a witness at the detention hearing. The Government specifically asserted that it was not calling the mother as it witness and did not rely on or argue any factual allegations that the victim's mother asserted. Rather, the Government relied solely on the facts that it had presented in seeking to have the defendant detained.
Here, the victim sought to assert her right to be heard on the issue of whether the defendant should be released as provided under the CVRA. The CVRA made victims of crime independent participants in the criminal justice process. Kenna v. U.S. Dist. Court for C.D. Cal., 435 F.3d 1011, 1013 (9th Cir. 2006); see also Turner, 367 F.Supp.2d at 322 ("[T]he CVRA gives crime victims direct standing to vindicate their procedural and substantive rights in criminal cases independently of prosecutors, see 18 U.S.C. § 3771(d), and also imposes on the judiciary an affirmative obligation to 'ensure' that those rights are 'afforded.' " Id. § 3771(b).").
Defendant has not cited to a single case, nor does the Court find any case, holding that a victim's statement must be given under oath and subject to cross examination. The CVRA clearly was enacted to make victims full participants in the proceedings and limiting victims to written impact statements would treat them as secondary participants in the proceedings. Kenna, 435 F.3d at 1016. The CVRA gives victims the "right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C. § 3771(a)(4). "This language means that the district court must hear from the victims, if they choose to speak, at more than one criminal [proceeding]." Kenna, 435 F.3d at 1016.
The CVRA does not require that victim statements be given under oath and "[e]very court that has examined this issue has held that there is no requirement to swear in CVRA victims." United States v. Grigg, 434 F. App'x 530, 533 (6th Cir. 2011). Similarly, courts have held that there is no right to cross examination victims who provide a victim statement at sentencing. United States v. Green, 718 F. App'x 141, 143 (3d Cir. 2018).
Allowing the defendant to cross examine the victim on her statement is contrary the rights provided under the CVRA that the victim be "treated with fairness and with respect for the victim's dignity and privacy." 18 U.S.C. § 3771(a)(8). "[T]he Senate sponsors of the law were clear in their articulation of the overall import of [this] provision: to promote a liberal reading of the statute in favor of interpretations that promote victims' interest in fairness, respect, and dignity. 'It is not the intent of this bill that its significance be whittled down or marginalized by the courts or the executive branch. This legislation is meant to correct, not continue, the legacy of the poor treatment of crime victims in the criminal process.' " Turner, 367 F.Supp.2d at 335 (quoting Senate Debate at S4269 (statement of Sen. Feinstein)). The Ninth Circuit has advised district court to give full effect to the CVRA and encourages "district courts to modify their own procedures so as to give full effect to the CVRA." Kenna, 435 F.3d at 1018. Requiring the victim to be subject to cross examination would be likely to inhibit victims from exercising their rights under the CVRA and would be contrary to the Act.
At the February 19 hearing, Defendant also argued that the Court should conduct an inquiry to ensure that the mother was speaking on behalf of her daughter citing to Turner. In Turner, the court was considering the proceedings that had occurred in a mail fraud case and determining what was required to comply with the recently enacted CVRA. Turner, 367 F. Supp. 2d 319. Specifically in determining who was entitled to notice under the CVRA, the court would "follow an inclusive approach: absent an affirmative reason to think otherwise, I will presume that any person whom the government asserts was harmed by conduct attributed to a defendant, as well as any person who self-identifies as such, enjoys all of the procedural and substantive rights set forth in § 3771." Id. at 327. The court considered the legislative history of section 3771(e)(2)(b) which allows for individuals other than the actual victim to assert the statutory rights of the victim. Id. at 329-331.
The court found that "[t]his provision appears to mean that where a surrogate is required and one is available, that person will automatically 'assume the crime victim's rights' without the need for any action by the court. It is only where no such person can be identified-or, presumably, where any such person is unwilling or unable to assume that role-that a court need consider appointing a suitable surrogate." Id. at 329. The court recognized that there may be situations where an appropriate representative would be needed to assert the victim's rights and there is an possible pitfall that this individual could have an agenda "beyond the interests of the specific victim he represents." Id. at 330. "To the extent that a court may find that such a surrogate does not fully represent the victim's interests, or has an additional agenda he seeks to advance by means of asserting the victim's rights, the court appears to have the authority to determine that the surrogate is not a 'suitable' person to assume the victim's rights pursuant to subsection (e), and therefore lacks standing to assert the victim's rights pursuant to subsection (d)(1)." Id. at 331.
The CVRA provides that "[i]n the case of a crime victim who is under 18 years of age . . . the legal guardians of the crime victim . . . family members, or any other persons appointed as suitable by the court, may assume the crime victim's rights under this chapter. . . ." 18 U.S.C. § 3771(e)(2)(b). Defendant cites to the complaint in which it was reported that the victim told the defendant that she was abused at home to argue that the mother may not be asserting the victim's rights. However, Defendant has presented no evidence that the victim's mother was abusing the minor or that she had any agenda other than asserting the minor's rights under the CVRA. It is undisputed that the witness was the mother of the victim and is therefore statutorily authorized under section 3771 to assert the minor's rights under the CVRA. Further, the Court is cognizant that the CVRA authorized individuals who are not legally trained to assert the rights of the minor and there is no requirement that such a foundation be established to allow a parent to speak on behalf of a minor victim. It would be inconsistent with the purposes of the CVRA to require the minor and her parent to participate in such an evidentiary hearing and allow them to be further victimized by answering questions about the relationships in the family.
Finally, in considering the factors under 18 U.S.C. § 3142, the Court made clear at the hearing that it would only consider those factual allegations proffered by the Government in seeking to detain the defendant, the parties were offered the opportunity to present evidence on the issue of detention, and the Government did not rely on or argue any facts outside of those given in the proffer, most of which were found in the criminal complaint. Further, the government stated at the hearing that it was not relying upon upon statemsnt given by the victim's mother at the detention hearing. Finally, consistent with the provision of section 3142, /// /// /// /// /// the Court only considered the evidence proffered by the Government in determining the issue of detention.
Based on the foregoing, Defendant's objection to the statement of the victim's mother is OVERRULED. IT IS SO ORDERED. Dated: February 22 , 2021
UNITED STATES MAGISTRATE JUDGE