New York Federal Criminal Practice Blog
May 19, 2008

Second Circuit Affirms Sentence that was Apparently Enhanced by Victim-Impact Testimony at Sentencing

The impact of victim-impact testimony at sentencing is highlighted in United States v. Eberhard, 05-3431-cr, 2008 WL 1930935 (2d Cir. May 5, 2008), where the district court imposed a sentence nine months longer than foreshadowed in its sentencing memorandum, after several fraud victims testified at the sentencing hearing.  They testified under the Crime Victims Rights Act (CVRA), a subsection of the Justice For All Act of 2004 (JFAA), which guarantees victims "the right to be reasonably heard" at sentencing.  See 18  U.S.C. ยง 3771(a)(4).  Needless to say, they demanded that Eberhard receive a draconian sentence.

Challenging this nine-month enhancement (admittedly a small drop of his lengthy 160-month sentence), Eberhard argued that the JFAA violated the Ex Post Facto clause in his case, because it had passed after his guilty plea in the case.  The Court dispatched that argument quickly, noting that "[a] law requiring that victims be reasonably heard (if they request) after the defendant has already been convicted does not implicate the Ex Post Facto clause."

More interesting is Eberhard's second argument, that the JFAA violated the Due Process Clause in his case, by permitting the government to circumvent his plea agreement through "victim-surrogates."  The government had contracted not to seek a sentence above 121 months, but now, Eberhard found himself facing victims demanding precisely that.  The Court rejected the argument, concluding (not very convincingly) that "the victims' pleas for a harsher sentence were incidental to presentation of facts."  But the Court left open the possibility that it might have misgivings were the government to "advance by proxy legal arguments it had disclaimed by contract" (my emphasis). 

The Court also importantly suggests that a defendant may be entitled to additional time to respond to victim statements at sentencing. Eberhard claimed he received insufficient notice both of the identity of the victims who would address the sentencing court and of the nature of their statements. Unpersuaded that Eberhard's Due Process rights were violated here, the Second Circuit pointed out after being granted an opportunity to respond to the victim-impact testimony, "Eberhard neither objected to the victim statements nor requested additional time to prepare a more thorough response" (my emphasis).  By implication, therefore, the Court may have found error, had Eberhard demanded additional time and the request been denied.

Defense lawyers would do well to cite this statement in the Eberhard decision in support of an adjournment of the sentencing in order to prepare a response, where the victim-impact testimony appears to be having the effect of marginalizing the defendant's mitigation arguments.  An adjournment may be just the ticket to clear the air of the visceral emotion presented and generated by victims.

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