People v. Vasseur , 2016 Colo. App. LEXIS 955 ( 2016 )

COLORADO COURT OF APPEALS 2016COA107
Court of Appeals No. 14CA2300
Adams County District Court No. 12CR1694
Honorable Patrick T. Murphy, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Tracy Lea Vasseur,
Defendant-Appellant.
ORDER AFFIRMED
Division I
Opinion by JUDGE FREYRE
Taubman and Dailey, JJ., concur
Announced July 14, 2016
Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Leslee A. Barnicle, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Tracy Lea Vasseur, appeals from an order of
restitution entered by the district court following a hearing. She
contends that the district court violated her Sixth Amendment right
of confrontation and the Colorado Rules of Evidence when it
considered a written compilation in determining the amount of
restitution. Because we conclude that neither the right of
confrontation nor the rules of evidence apply in restitution
proceedings, we affirm.
I. Background
¶2 Vasseur and her mother (codefendant) assisted individuals
located primarily in Nigeria (associates) with an Internet scam to
take money from victims who were looking for love and
companionship. Over the course of more than three years,
Vasseur’s associates targeted victims on dating and social
networking websites, represented that they were members of the
United States Armed Forces, and convinced the victims to wire
money to an “agent” in Colorado through Western Union,
MoneyGram, or various bank accounts.
¶3 Vasseur and her mother acted as the Colorado “agent” for
numerous wire transfers. They kept a portion of the money sent by
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the victims before wiring the remaining amount to their associates.
Vasseur and her mother stole money from 374 victims.
¶4 In 2012, a grand jury indicted Vasseur for operating an
enterprise through a pattern of racketeering activity in violation of
the Colorado Organized Crime Control Act (COCCA), conspiracy to
commit racketeering in violation of COCCA, nine counts of theft of
$20,000 or more, theft of $5000 or more from an at-risk victim,
money laundering, identity theft, four counts of forgery, criminal
impersonation, and contributing to the delinquency of a minor.
Under a plea agreement, Vasseur pleaded guilty to a pattern of
racketeering activity in violation of COCCA in exchange for the
dismissal of the remaining counts, a sentencing cap of eighteen
years in prison, and the payment of restitution.
¶5 The court sentenced Vasseur to fifteen years in the custody of
the Department of Corrections and reserved the issue of restitution
for ninety days. Thereafter, the prosecution filed a request for
restitution in the amount of $1,063,242. Vasseur objected and
requested a hearing.
¶6 During the restitution hearing, the court admitted Exhibit A
over Vasseur’s objection. Exhibit A is a spreadsheet that lists the
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wire transfers received by Vasseur and her mother. It shows the
sender’s name, the sender’s age or date of birth, the sender’s
address, the date of the wire transfer, and the amount of the wire
transfer.
¶7 The prosecution admitted Exhibit A through an agent with the
Colorado Bureau of Investigation who testified that
 he was the primary investigator in Vasseur’s case;
 there were 374 victims “from all over the United States
and five other countries,” including twenty-nine at-risk
victims;
 the total amount of money lost by those victims was
about $1,063,000;
 Vasseur and her mother kept “roughly ten percent” of the
money they collected;
 Exhibit A was prepared by an analyst who worked for
him;
 Exhibit A included the victims whose wire transfers had
been received by Vasseur and her mother through
Western Union, MoneyGram, and various bank accounts;
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 Vasseur and her mother received wire transfers at
approximately sixty-six different Western Union and
MoneyGram locations;
 the investigating agents interviewed a large number of
the victims and no evidence suggested that the money
had been sent for a legitimate purpose;
 none of the money had been returned to the victims;
 Vasseur admitted in an interview that she knew there
was no charity involved and that she took the money,
kept a portion for herself, and sent the rest to Nigeria;
and
 Vasseur never claimed to have received the money for a
legitimate purpose.
¶8 At the conclusion of the restitution hearing, the court gave the
parties an opportunity to submit further argument or authority.
Vasseur filed a memorandum in support of her objection to the
amount of restitution.
¶9 In response, the prosecution conceded that two of the senders
listed in Exhibit A were inadequately identified, seven had
incomplete or nonexistent contact information, and one was
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arguably not a victim. It withdrew its restitution request for those
ten people, reducing the amount of restitution requested by
$52,774.45.
¶ 10 The district court imposed $1,010,467.55 in restitution, jointly
and severally with Vasseur’s mother. It found that the prosecution
had proven, by a preponderance of the evidence, that the victims on
the amended list had been defrauded by Vasseur’s scam.
II. Restitution
¶ 11 Vasseur contends that the district court erred when it
considered Exhibit A in imposing restitution. She argues that the
court violated (1) her Sixth Amendment right of confrontation
because she did not have an opportunity to cross-examine the
witnesses who provided the information used to compile Exhibit A;
and (2) the Colorado Rules of Evidence because Exhibit A contained
inadmissible hearsay, lacked a proper foundation, and had not
been properly authenticated. We disagree.
A. Standard of Review
¶ 12 We review a district court’s restitution order for an abuse of
discretion. See People v. Welliver, 2012 COA 44, ¶ 8. A court
abuses its discretion if it “misconstrues or misapplies the law” or if
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its ruling is manifestly arbitrary, unreasonable or unfair. People v.
Harris, 43 P.3d 221, 225 (Colo. 2002); People v. Reyes, 166 P.3d
301, 302 (Colo. App. 2007). Claims of evidentiary error involving
Confrontation Clause violations are reviewed de novo. Bernal v.
People, 44 P.3d 184, 198 (Colo. 2002). Absent an abuse of
discretion, the court’s ruling will not be disturbed on appeal.
People v. Witt, 15 P.3d 1109, 1110 (Colo. App. 2000). The parties
dispute whether Vasseur preserved her Confrontation Clause claim.
However, we need not resolve this dispute because we conclude no
error occurred.
B. Restitution is Part of a Defendant’s Sentence
¶ 13 Offenders are required to pay “full restitution” to victims
harmed by their misconduct. § 18-1.3-601(1)(b), C.R.S. 2015. This
includes recovery of the “‘actual, pecuniary damages sustained by
the victim as the direct result of the defendant’s conduct.” People v.
Courtney, 868 P.2d 1126, 1127 (Colo. App. 1993) (citation omitted).
The restitution award should fulfill the statutory purpose of “simply
making the victim whole to the extent practicable.” Id. at 1128;
accord People v. Stafford, 93 P.3d 572, 575 (Colo. App. 2004).
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¶ 14 The restitution statute recognizes that “victims endure undue
suffering and hardship resulting from . . . emotional and
psychological injury” and that “[p]ersons found guilty of causing
such suffering and hardship should be under a moral and legal
obligation to make full restitution to those harmed by their
misconduct.” § 18-1.3-601(1)(a)-(b).
¶ 15 The prosecution bears the burden of proving, by a
preponderance of the evidence, both the restitution owed and that
the victim’s losses were proximately caused by the defendant.
People v. Hensen, 2013 COA 36, ¶ 11. When the prosecution
presents its evidence at a hearing, a defendant must have the
opportunity to contest the amount of the victim’s loss and its causal
link to the crime. People v. Rivera, 250 P.3d 1272, 1275 (Colo. App.
2010). However, the court need not “conduct a mini-trial on the
issue of damages.” People v. Johnson, 780 P.2d 504, 507 (Colo.
1989).
¶ 16 Restitution is part of the district court’s sentencing function in
criminal cases. See Roberts v. People, 130 P.3d 1005, 1007 (Colo.
2006); People v. Dunlap, 222 P.3d 364, 368 (Colo. App. 2009).
Indeed, a sentence is illegal if the court fails to consider restitution,
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a statutory requirement for every felony judgment of conviction.
See Dunlap, 222 P.3d at 368; see also § 18-1.3-603(1), C.R.S. 2015.
Moreover, a restitution order is appealable in accordance with “the
statutory procedures applicable to the appellate review of a felony
sentence.” Johnson, 780 P.2d at 508.
¶ 17 We reject Vasseur’s argument that restitution is not part of a
sentence because the time to file a direct appeal (which runs from
the date a sentence is imposed) is not delayed for the court’s
determination of a final amount. After the legislature amended the
restitution statute in 2000, the court was no longer required to set
the amount of restitution at the time it imposed a sentence. See
Sanoff v. People, 187 P.3d 576, 578 (Colo. 2008). The amendment
allowed the court to order a restitution obligation and to postpone
the determination of the amount of that obligation. See id. For that
reason, the judgment became final once the court determined that a
defendant was obligated to pay restitution. See id. Even after the
amendment, restitution remains a part of a defendant’s sentence.
See § 18-1.3-603(1).
C. The Right of Confrontation
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¶ 18 “The right to confrontation is considered ‘a trial right.’” People
v. Ray, 252 P.3d 1042, 1048 n.7 (Colo. 2011) (quoting Pennsylvania
v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion)). Thus, the
right of confrontation does not apply to sentencing proceedings.
See People v. Lassek, 122 P.3d 1029, 1031-32 (Colo. App. 2005).
¶ 19 It follows then that the right of confrontation does not apply to
restitution hearings because restitution is part of the sentencing
proceeding. United States v. Battles, 745 F.3d 436, 462 (10th Cir.
2014) (concluding that, because the right of confrontation is a trial
right, a defendant does not have an absolute right to confront
witnesses at a restitution hearing); Franco v. State, 918 A.2d 1158,
1161 (Del. 2007) (concluding that the right of confrontation does
not apply in restitution hearings); Box v. State, 993 So. 2d 135,
138-39 (Fla. Dist. Ct. App. 2008) (relying, in part, on Lassek in
reaching its conclusion that the right of confrontation does not
apply to restitution hearings); see also Oken v. Warden, 233 F.3d
86, 91 (1st Cir. 2000) (extending lack of confrontation right to state
postconviction proceedings).
D. The Rules of Evidence
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¶ 20 Similarly, the Colorado Rules of Evidence do not apply to
sentencing proceedings. See CRE 1101(d)(3). In fact, hearsay is
admissible in a sentencing proceeding. See People v. Bruebaker,
189 Colo. 219, 222, 539 P.2d 1277, 1279 (1975); People v. Pourat,
100 P.3d 503, 505 (Colo. App. 2004). We note that the restitution
statute contemplates the court’s consideration of victim impact
statements, which are necessarily hearsay. See § 18-1.3-603(2).
¶ 21 As with the right of confrontation, the rules of evidence do not
apply in a restitution proceeding because restitution is part of the
sentencing process. Accord People v. Matzke, 842 N.W.2d 557,
559-60 (Mich. Ct. App. 2013) (concluding that the rules of evidence
do not apply to restitution proceedings because they are not
applicable to sentencing proceedings and restitution is a part of
sentencing); State v. Morse, 106 A.3d 902, 906-07 (Vt. 2014) (same).
E. Application
¶ 22 Because neither the right of confrontation nor the rules of
evidence apply to a restitution proceeding, we conclude that
Vasseur’s arguments fail. Therefore, we conclude that the district
court did not abuse its discretion when it relied on Exhibit A in
determining the amount of restitution. See Welliver, ¶ 8.
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III. Conclusion
¶ 23 The order is affirmed.
JUDGE TAUBMAN and JUDGE DAILEY concur.
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