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Ninth Circuit:
Victims Lose Right to Be Heard When Plea Deal Causes Charge Dropped Relating to Their Loss
Panel Says Discretionary Immunity Bars Action Against U.S.
By a MetNews Staff Writer
An elderly husband and wife who were allegedly defrauded through unlawful schemes were not entitled to be heard in connection with the prosecution of the perpetrators—one of them being former Assembly member Terry Goggin—where, through plea bargains, the charges no longer related to offenses against them, the Ninth U.S. Circuit Court of Appeals has held.
A memorandum opinion—filed Wednesday and signed by Circuit Judges Roopali H. Desai, Gabriel P. Sanchez, and Holly A. Thomas—affirms a dismissal with prejudice of the first amended complaint against the United States brought by James and Elizabeth Console. alleging an abrogation of their rights under Art, I, §28(b) of the California Constitution and the federal Crime Victims’ Rights Act and the Victims’ Rights and Restitution Act.
The Consoles invoked the Federal Tort Claims Act (“FTCA”) which, in general, waives sovereign immunity “for torts committed by federal employees acting within the scope of their employment.” They disputed the government’s claim that an exception to liability based on discretionary immunity applies.
Notification to Victims
In their first amended complaint, the Consoles, representing themselves, said with respect to Goggin, who served in the Assembly from 1974-85:
“Plaintiffs were notified by the [Department of Justice] Victims Notification System as victims. Mr. Goggin had been indicted and arrested. We were in contact with the Victim Witness Specialist, Maria Sunga, Northern District of California. We had a number of conversations Ms. Sunga and I, regarding the criminal case against Mr. Goggin. We were looking forward to speaking to the U.S. Attorney, before any Plea deal was reached, hoping to convey the significance of the economic harm that Mr. Goggin’s and the co-conspirators, and that we wanted to exercise our right to be heard at Mr. Goggin’s trial.
“However, we were excluded, and they refused to allow us to speak, stating to us that we were not victims of the ‘charged offense’ at sentencing, they had reduced the defendants offenses down to one of money laundering, and we were not victims of his money laundering offense; therefore, we had no right to be heard or to have restitution ordered from our offender Mr. Goggin.”
(Goggin was sentenced in 2021 by District Judge James Donato of the Northern District of California to a year and a day in prison. He was disbarred the following year.)
Ninth Circuit Opinion
The Ninth Circuit opinion says:
“The Consoles nonetheless contend that the discretionary function exception does not apply to their claim that the government acted negligently by preventing them from participating in the perpetrators’ criminal proceedings. They argue that, because they were victims of the fraudulent scheme, victims’ rights statutes and the Due Process Clause removed the United States’ discretion to exclude them from the proceedings….
“But the Due Process Clause does not require the government to allow crime victims to participate in criminal proceedings….Regardless, to trigger the rights under the relevant statutes, the Consoles must have been victims of the charged offenses….Because the government entered indictments and plea deals with reduced charges, and the Consoles were not victims of the crimes charged, there was no statutory requirement that the United States allow the Consoles’ participation in the criminal proceedings.”
The judges also said that the Consoles’ “claim that the government failed to warn them of the scheme that defrauded them out of their retirement accounts falls within the misrepresentation exception” to the FTCA’s waiver of immunity.
The case is Console v. U.S., 23-3609.
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