Kenna v. United States District Court Central California

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
W. PATRICK KENNA, 
Petitioner,
No. 05-73467
v.
UNITED STATES DISTRICT  D.C. No.
CR-03-00568-JFW
COURT FOR THE CENTRAL
OPINION
DISTRICT OF CALIFORNIA,
Respondent.

Petition for Writ of Mandamus to the
United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
January 11, 2006—Pasadena, California
Filed January 20, 2006
Before: Alfred T. Goodwin, Daniel M. Friedman,* and
Alex Kozinski, Circuit Judges.
Opinion by Judge Kozinski;
Dubitante by Judge Friedman
*The Honorable Daniel M. Friedman, Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.
1163
1166 KENNA v. UNITED STATES DISTRICT COURT
COUNSEL
Steven J. Twist, Scottsdale, Arizona; Keli B. Luther, Crime
Victims Legal Assistance Project, Tempe, Arizona; John A.
Case, Jr., Law Offices of John A. Case, Jr., Los Angeles, Cal-
ifornia; for the petitioner.
The Honorable John F. Walter, Los Angeles, California,
respondent.
Viet D. Dinh, Wendy J. Keefer, Bancroft Associates PLLC,
Washington, DC; Richard Stone, Hogan & Hartson L.L.P.,
Los Angeles, California; H. Christopher Bartolomucci, Hogan
& Hartson L.L.P., Washington, DC; for amici curiae United
States Senators Jon Kyl and Dianne Feinstein.
Assistant United States Attorney R. Stephen Kramer was
present at oral argument on behalf of the United States and
answered questions, but did not file a brief or take a position
on the merits.
OPINION
KOZINSKI, Circuit Judge:
We consider whether the Crime Victims’ Rights Act, 18
U.S.C. § 3771, gives victims the right to allocute at sentenc-
ing.
KENNA v. UNITED STATES DISTRICT COURT 1167
Facts
Moshe and Zvi Leichner, father and son, swindled scores
of victims out of almost $100 million. While purporting to
make investments in foreign currency, they spent or con-
cealed the funds entrusted to them. Each defendant pleaded
guilty to two counts of wire fraud and one count of money
laundering. More than sixty of the Leichners’ victims submit-
ted written victim impact statements. At Moshe’s sentencing,
several, including petitioner W. Patrick Kenna, spoke about
the effects of the Leichners’ crimes—retirement savings lost,
businesses bankrupted and lives ruined. The district court sen-
tenced Moshe to 240 months in prison.
Three months later, at Zvi’s sentencing, the district court
heard from the prosecutor and the defendant, as required by
Federal Rule of Criminal Procedure 32(i)(4). But the court
denied the victims the opportunity to speak. It explained:
I listened to the victims the last time. I can say for
the record I’ve rereviewed all the investor victim
statements. I have listened at Mr. Leichner’s father’s
sentencing to the victims and, quite frankly, I don’t
think there’s anything that any victim could say that
would have any impact whatsoever. I—what can you
say when people have lost their life savings and what
can you say when the individual who testified last
time put his client’s [sic] into this investment and
millions and millions of dollars and ended up losing
his business? There just isn’t anything else that could
possibly be said.
One victim protested that “[t]here are many things that are
going on with the residual and second and third impacts in
this case that have unfolded over the last 90 days since we
were last in this courtroom.” But the district judge told the
victims that the prosecutor could bring those developments to
1168 KENNA v. UNITED STATES DISTRICT COURT
his attention, and continued to refuse to let the victims speak.
Zvi was sentenced to 135 months in prison.
Kenna filed a timely petition for writ of mandamus pursu-
ant to the Crime Victims’ Right Act (CVRA), 18 U.S.C.
§ 3771(d)(3). He seeks an order vacating Zvi’s sentence, and
commanding the district court to allow the victims to speak at
the resentencing.
Analysis
1. The criminal justice system has long functioned on the
assumption that crime victims should behave like good Victo-
rian children—seen but not heard. The Crime Victims’ Rights
Act sought to change this by making victims independent par-
ticipants in the criminal justice process. See Scott Campbell,
Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila
Lynn Crime Victims’ Rights Act, Pub. L. No. 108-405,
§§ 101-104, 118 Stat. 2260, 2261-65 (2004) (codified at 18
U.S.C. § 3771). The CVRA guarantees crime victims eight
different rights, and unlike the prior crime victims’ rights stat-
ute, allows both the government and the victims to enforce
them. See 18 U.S.C. § 3771(a), (d)(1); United States v.
McVeigh, 106 F.3d 325, 335 (10th Cir. 1997) (per curiam).
[1] Kenna and the district court disagree over the scope of
one of the rights guaranteed by the CVRA: “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). Kenna contends that his right to be
“reasonably heard” means that he is entitled to speak in open
court at Zvi’s sentencing, if that is how he chooses to express
himself. The district court argues that the words “reasonably
heard” vest the judge with discretion about how to receive the
views of the victims, and that the judge is entitled to limit
Kenna to written victim statements or his prior statements at
Moshe’s sentencing. No court of appeals has considered the
scope of this CVRA right, and the two district courts that have
KENNA v. UNITED STATES DISTRICT COURT 1169
closely considered it have reached opposite conclusions.
Compare United States v. Degenhardt, 2005 WL 3485922, at
*3 (D. Utah Dec. 21, 2005) (CVRA grants victims a right to
speak) with United States v. Marcello, 370 F. Supp. 2d 745,
748 (N.D. Ill. 2005) (no it doesn’t).
Kenna would have us interpret the phrase “reasonably
heard” as guaranteeing his right to speak. For support, he
points to the dictionary definition of “hear”—“to perceive
(sound) by the ear.” The American Heritage Dictionary of the
English Language (4th ed. 2000), available at http://
www.bartleby.com/61/69/H0106900.html. Kenna concedes
that the district court may place reasonable constraints on the
duration and content of victims’ speech, such as avoiding
undue delay, repetition or the use of profanity.1 However, in
Kenna’s view, the district court may not prohibit victims from
speaking in court altogether or limit them to making written
statements. This is the interpretation adopted by the district
court in Degenhardt.
But this isn’t the only plausible interpretation of the phrase
“reasonably heard.” According to the district court, to be
“heard” is commonly understood as meaning to bring one’s
position to the attention of the decisionmaker orally or in writ-
ing. See, e.g., Fernandez v. Leonard, 963 F.2d 459, 463 (1st
Cir. 1992) (“Where the parties have had a ‘fair opportunity to
present relevant facts and argument to the court,’ a matter
may be “ ‘heard” on the papers’ alone.” (quoting Aoude v.
Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir. 1988))). The dis-
trict court urges us to follow Marcello and hold that the
CVRA guarantees victims only a right to make their position
1
The CVRA itself contains one such nod to judicial economy. In crimes
with multiple victims, the CVRA allows district courts to fashion “a rea-
sonable procedure to give effect to [the act] that does not unduly compli-
cate or prolong the proceedings.” 18 U.S.C. § 3771(d)(2). Such a
procedure may well be appropriate in a case like this one, where there are
many victims.
1170 KENNA v. UNITED STATES DISTRICT COURT
known by whatever means the court reasonably determines.
See Marcello, 370 F. Supp. 2d at 748. Even though “heard”
has been held to include submission on the papers in some
contexts, it does not follow that the CVRA calls for an equally
broad construction. It merely shows that the district court’s
interpretation of the term is also plausible.2
The district court also argues that, had Congress meant to
give victims a right to speak at sentencing hearings, it could
easily have done so by using the word “speak” which clearly
connotes only oral communications, not written ones. This is
the term used in Federal Rule of Criminal Procedure
32(i)(4)(B), which gives the victims of certain types of crimes
the right “to speak or submit any information about the sen-
tence.” The district court would have us infer from the fact
that Congress used the more ambiguous term “heard” that it
meant to give victims of crimes not covered by Rule 32 a
more circumscribed right to present their views. However, the
term “heard” does not appear in isolation in the CVRA. The
full phrase we are construing is “[t]he right to be reasonably
heard at any public proceeding in the district court involving
. . . sentencing.” Virtually all proceedings in district court are
public in the sense that the papers and other materials may be
viewed by anyone on request to the clerk’s office.3 When
2
We do not read Paladin Associates, Inc. v. Montana Power Co., 328
F.3d 1145, 1164-65 (9th Cir. 2003), as compelling a contrary result. In
Paladin, a party seeking to avoid discovery sanctions argued that its right
to be heard under Federal Rule of Civil Procedure 37(c)(1) entitled it to
an evidentiary hearing. We held that “under the facts and circumstances
of the present case, the opportunity to submit briefs was an ‘opportunity
to be heard’ within the meaning of Rule 37(c)(1).” Paladin, 328 F.3d at
1164-65. Kenna does not claim the right to present evidence or testify
under oath; he seeks the right of allocution, much like that traditionally
guaranteed a criminal defendant before sentence is imposed. Paladin thus
not only construed the term “heard” in a different context, but also dealt
with the right to present evidence, which is not at issue here.
3
The rare exception involves cases where certain portions of the record
are sealed. This can occur only in rare and exceptional circumstances for
compelling reasons. Phoenix Newspapers, Inc. v. United States Dist.
Court for the Dist. of Ariz., 156 F.3d 940, 946-47 (9th Cir. 1998).
KENNA v. UNITED STATES DISTRICT COURT 1171
Congress used the word “public” in this portion of the CVRA,
however, it most likely meant to refer to proceedings in open
court—much as the word is used in the common phrase “pub-
lic hearing.”4 So read, the right to be “heard” at a “public pro-
ceeding” becomes synonymous with “speak” and we can
draw no negative inference from the congressional choice of
one term over the other.
[2] In the end, we find none of these textual arguments dis-
positive and conclude, as did Degenhardt, that both readings
of the statute are plausible. The statute is therefore ambiguous
as to what it means for crime victims to be heard. To resolve
this ambiguity, we turn to the legislative history of the CVRA.
See Toibb v. Radloff, 501 U.S. 157, 162 (1991) (“[A] court
appropriately may refer to a statute’s legislative history to
resolve statutory ambiguity . . . .”). The Senate considered the
CVRA in April 2004, and at that time the primary sponsors
of the bill, Senators Jon Kyl and Dianne Feinstein, discussed
this very issue:
It is not the intent of the term “reasonably” in the
phrase “to be reasonably heard” to provide any
excuse for denying a victim the right to appear in
person and directly address the court. Indeed, the
very purpose of this section is to allow the victim to
appear personally and directly address the court.
150 Cong. Rec. S4268 (daily ed. April 22, 2004) (statement
of Sen. Kyl); see also id. (statement of Sen. Feinstein) (“That
is my understanding as well.”). Six months later, the CVRA
was attached to a House bill, and Senator Kyl reiterated his
understanding of the CVRA language.
4
We rather suspect that Congress may have used the phrase “heard at
any public proceeding” rather than “heard at any public hearing” in a fas-
tidious effort to avoid saying “heard” and “hearing” within 5 words of
each other. Of course, repetition—as well as ambiguity—could also have
been avoided by using the phrase “speak at any public hearing,” which is
why we don’t view the reference to a “public proceeding” as dispositive.
1172 KENNA v. UNITED STATES DISTRICT COURT
It is important that the “reasonably be heard” lan-
guage not be an excuse for minimizing the victim’s
opportunity to be heard. Only if it is not practical for
the victim to speak in person or if the victim wishes
to be heard by the court in a different fashion should
this provision mean anything other than an in-person
right to be heard.
150 Cong. Rec. S10911 (daily ed. Oct. 9, 2004) (statement of
Sen. Kyl).
[3] Floor statements are not given the same weight as some
other types of legislative history, such as committee reports,
because they generally represent only the view of the speaker
and not necessarily that of the entire body. However, floor
statements by the sponsors of the legislation are given consid-
erably more weight than floor statements by other members,
see NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d 404, 415
n.12 (9th Cir. 1979), and they are given even more weight
where, as here, other legislators did not offer any contrary
views. Silence, the maxim goes, connotes assent, see Robert
Bolt, A Man for All Seasons act 2, at 88 (1962), and so we can
draw from the fact that no one registered disagreement with
Senators Kyl and Feinstein on this point the reasonable infer-
ence that the views they expressed reflected a consensus, at
least in the Senate.
[4] We also note that the CVRA passed as a compromise
measure after a lengthy effort to amend the Constitution to
protect victims’ rights. The proposed constitutional amend-
ment used language almost identical to that ultimately enacted
in the CVRA; it guaranteed victims the right “reasonably to
be heard.” S.J. Res. 1, 108th Cong. (2003). But the legislative
history of the proposed amendment is more substantial than
that of the CVRA. The Senate Report on the amendment
notes that:
The victim’s right is to “be heard.” The right to
make an oral statement is conditioned on the vic-
KENNA v. UNITED STATES DISTRICT COURT 1173
tim’s presence in the courtroom. . . . [V]ictims
should always be given the power to determine the
form of the statement. Simply because a decision
making body, such as the court . . . has a prior state-
ment of some sort on file does not mean that the vic-
tim should not again be offered the opportunity to
make a further statement. . . . The Committee does
not intend that the right to be heard be limited to
“written” statements, because the victim may wish to
communicate in other appropriate ways.
S. Rep. No. 108-191, at 38 (2003). The statements of the
sponsors of the CVRA and the committee report for the pro-
posed constitutional amendment disclose a clear congressio-
nal intent to give crime victims the right to speak at
proceedings covered by the CVRA.
Our interpretation advances the purposes of the CVRA.
The statute was enacted to make crime victims full partici-
pants in the criminal justice system. Prosecutors and defen-
dants already have the right to speak at sentencing, see Fed.
R. Crim. P. 32(i)(4)(A); our interpretation puts crime victims
on the same footing. Our interpretation also serves to effectu-
ate other statutory aims: (1) To ensure that the district court
doesn’t discount the impact of the crime on the victims; (2)
to force the defendant to confront the human cost of his
crime; and (3) to allow the victim “to regain a sense of dignity
and respect rather than feeling powerless and ashamed.”
Jayne W. Barnard, Allocution for Victims of Economic
Crimes, 77 Notre Dame L. Rev. 39, 41 (2001). Limiting vic-
tims to written impact statements, while allowing the prosecu-
tor and the defendant the opportunity to address the court,
would treat victims as secondary participants in the sentenc-
ing process. The CVRA clearly meant to make victims full
participants.
[5] Nor was Kenna’s statutory right vindicated because he
had the opportunity to speak at Moshe’s sentencing three
1174 KENNA v. UNITED STATES DISTRICT COURT
months earlier. The statute gives victims a “right to be reason-
ably 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 sentencing. The court can’t deny the
defendant allocution because it thinks “[t]here just isn’t any-
thing else that could possibly be said.” Victims now have an
indefeasible right to speak, similar to that of the defendant,
and for good reason: The effects of a crime aren’t fixed for-
ever once the crime is committed—physical injuries some-
times worsen; victims’ feelings change; secondary and
tertiary effects such as broken families and lost jobs may not
manifest themselves until much time has passed. The district
court must consider the effects of the crime on the victims at
the time it makes its decision with respect to punishment, not
as they were at some point in the past. Moreover, the CVRA
gives victims the right to confront every defendant who has
wronged them; speaking at a co-defendant’s sentencing does
not vindicate the right of the victims to look this defendant in
the eye and let him know the suffering his misconduct has
caused.
2. We normally apply strict standards in reviewing petitions
for a writ of mandamus, in large part to ensure that they not
become vehicles for interlocutory review in routine cases. To
this end, we grant the writ only when there is something truly
extraordinary about the case—for example, clear or oft-
repeated legal error by the district court, no other means for
the petitioner to obtain review or an issue of first impression.
This may well be such a case: The petitioner raises an issue
of first impression, the district court clearly erred in its inter-
pretation and Kenna has no other means of vindicating his
rights. This case may thus merit review even under the strict
standard announced in Bauman v. United States District
Court, 557 F.2d 650, 654-55 (9th Cir. 1977).
[6] However, we need not balance the usual Bauman fac-
tors because the CVRA contemplates active review of orders
KENNA v. UNITED STATES DISTRICT COURT 1175
denying victims’ rights claims even in routine cases. The
CVRA explicitly gives victims aggrieved by a district court’s
order the right to petition for review by writ of mandamus,
provides for expedited review of such a petition, allows a sin-
gle judge to make a decision thereon, and requires a reasoned
decision in case the writ is denied. The CVRA creates a
unique regime that does, in fact, contemplate routine interloc-
utory review of district court decisions denying rights asserted
under the statute. We thus need not balance the Bauman fac-
tors in ruling on mandamus petitions brought under the
CVRA; rather, we must issue the writ whenever we find that
the district court’s order reflects an abuse of discretion or
legal error. The Second Circuit has come to the same conclu-
sion. See United States v. Rigas (In re W.R. Huff Asset Mgmt.
Co.), 409 F.3d 555, 562 (2d Cir. 2005) (holding that “a peti-
tioner seeking relief pursuant to the mandamus provision set
forth in § 3771(d)(3) need not overcome the hurdles typically
faced by a petitioner seeking review of a district court deter-
mination through a writ of mandamus”). We are aware of no
court of appeals that has held to the contrary.
[7] 3. As we explained above, the district court here com-
mitted an error of law by refusing to allow petitioner to allo-
cute at Zvi’s sentencing and we must therefore issue the writ.
We turn now to the scope of the remedy. Kenna asks us to
vacate Zvi’s sentence, and order the district court to resen-
tence him after allowing the victims to speak. The problem is
that the CVRA gives district courts, not courts of appeals, the
authority to decide a motion to reopen in the first instance.
See 18 U.S.C. § 3771(d)(5). Moreover, defendant Zvi Leich-
ner is not a party to this mandamus action, and reopening his
sentence in a proceeding where he did not participate may
well violate his right to due process. It would therefore be
imprudent and perhaps unconstitutional for us to vacate Zvi’s
sentence without giving him an opportunity to respond.
[8] We could delay further our consideration of the petition
and order briefing from the defendant, but we think it more
1176 KENNA v. UNITED STATES DISTRICT COURT
advisable to let the district court consider the motion to
reopen in the first instance. In ruling on the motion, the dis-
trict court must avoid upsetting constitutionally protected
rights, but it must also be cognizant that the only way to give
effect to Kenna’s right to speak as guaranteed to him by the
CVRA is to vacate the sentence and hold a new sentencing
hearing. We note that if the district court chooses not to
reopen the sentence, Kenna will have another opportunity to
petition this court for mandamus pursuant to the CVRA. Like-
wise, defendant will be able to contest any change in his sen-
tence through the normal avenue for appeal (assuming he has
not waived such rights as part of the plea bargain).
4. Finally, we recognize that under 18 U.S.C.
§ 3771(d)(3), we were required to “take up and decide [this]
application forthwith within 72 hours after the petition [had]
been filed.” Id. We acknowledge our regrettable failure to
consider the petition within the time limits of the statute, and
apologize to the petitioner for this inexcusable delay. It may
serve as a small comfort for petitioner to know that, largely
because of this case, we are in the process of promulgating
procedures for expeditious handling of CVRA mandamus
petitions to ensure that we comply with the statute’s strict
time limits in future cases. As victim participation in the crim-
inal justice system becomes more common, we expect CVRA
claims to become more frequent, and thus encourage district
courts to modify their own procedures so as to give full effect
to the CVRA.5
5
We note, for example, that our task in crafting an effective remedy
would have been greatly simplified, had the district court postponed Zvi’s
sentencing until the petition for writ of mandamus was resolved. District
courts may consider whether to routinely postpone final imposition of sen-
tence in cases where they deny a request by victims to exercise rights
granted by the CVRA.
KENNA v. UNITED STATES DISTRICT COURT 1177
Conclusion
We grant the petition for writ of mandamus and hold that
the district court erred in refusing to allow Kenna and other
victims to speak at Zvi Leichner’s sentencing hearing. The
district court shall deem timely a motion pursuant to 18
U.S.C. § 3771(d)(5) filed by Kenna or any other of Zvi’s vic-
tims within 14 days of the date of our opinion. If the district
court grants the motion, it shall conduct a new sentencing
hearing, according Kenna and the other victims the right to
speak as described above.
PETITION GRANTED.
The panel retains jurisdiction over any future mandamus
petitions arising from the Zvi Leichner criminal case.
FRIEDMAN, Senior Circuit Judge, dubitante:
Although I agree that the writ should issue, I am concerned
about the seemingly broad sweep of the opinion.
1. The court decides — and I agree — that the require-
ment in the Crime Victims Rights Act (“the Act”) that crime
victims may be “reasonably heard” at sentencing entitles them
to speak there. The court then holds — and I again agree —
that the district court could not justify its refusal to permit the
victims of this huge swindle to speak at Zvi’s sentencing
because it had permitted them to speak at his father’s sentenc-
ing three months earlier (both father and son participated in
the fraud).
My concern is that the court seems to hold that a victim has
an absolute right to speak at sentencing, no matter what the
circumstances. As the court states, “the CVRA gives victims
the right to confront every defendant who has wronged them;
1178 KENNA v. UNITED STATES DISTRICT COURT
speaking at a co-defendant’s sentencing does not vindicate the
right of the victims to look this defendant in the eye and let
him know the suffering his misconduct has caused.” Suppose
that the present case were changed so that Zvi’s sentencing
took place immediately after his father’s on the same day, and
that Kenna had been allowed to speak at the father’s sentenc-
ing (as he did). Would he have an absolute right to speak an
hour later at Zvi’s sentencing and to repeat what he had just
stated? Perhaps the Act would give him that right, but it is not
clear to me that this statute goes that far. I would leave that
issue open and issue an opinion of more limited scope.
2. There is a similar sweep to the mandamus writ the
court issues. Although only Kenna filed a petition for manda-
mus, the “Conclusion” of the opinion gives not only Kenna
but the “other victims” of the fraud the right to speak at Zvi’s
sentencing. Suppose a case with five defendants and 20 vic-
tims. Does each victim have the right to speak at the sentenc-
ing of each defendant? Although the court notes that “Kenna
concedes that the district court may place reasonable con-
straints on the duration and content of victims’ speech, such
as avoiding undue delay, repetition or the use of profanity,”
it stops short of accepting this concession. In the hypothetical
I have just posed, it is difficult to believe that the Act requires
the court to listen to 100 victim statements. Once again, I
think that the statutory standard of “reasonably heard” may
permit a district court to impose reasonable limitations on cer-
tain oral statements. Perhaps in my hypothetical, the court
could require multiple victims, as a condition to speaking, to
state what they would add to the prior statements of other vic-
tims. In any event, I would think that our writ would only
require the district court to consider allowing Kenna to speak
at any resentencing. I would leave it to the district court ini-
tially to decide whether other victims also may speak there.