Impact Victim

United States v. Eberhard, No. 05-3431-cr (2d Cir. May 5, 2008) (Jacobs, Calabresi, Sack, CJJ)

Todd Eberhard, a former stock broker, pled guilty to various fraud charges. Under his plea agreement, the stipulated guideline range was 97 to 121 months’ imprisonment. The presentence report added a 4-level aggravating role enhancement, but then recommended a below-guidelines 96-month sentence. Judge Sweet issued a pre-sentencing opinion indicating that he would impose a 151-month sentence. But, at sentencing, after hearing from victims, who asserted their right to address the court under 18 U.S.C. § 3771(a) (2004), which was enacted after Eberhard pled guilty, the judge imposed a 160-month sentence.

The circuit affirmed the sentence. First, it rejected an ex post facto challenge to the application of § 3771(a). District courts have always had the discretion to consider victim statements, and there is nothing about the new legislation – which requires district courts to hear from the victims of financial crimes – that implicates the Ex Post Facto Clause. The new legislation did not create a new crime, aggravate or increase the penalty for an existing crime, or alter the rules of evidence to dilute the quantum of evidence necessary for the government to secure a conviction.

The court also rejected an interesting due process claim: Eberhard argued that the government violated the plea agreement by presenting victim testimony that made sentencing arguments “by proxy” that the government was barred from making in the plea agreement. The circuit disagreed, since nothing in the plea agreement prevented the government from presenting victim impact testimony and the victims’ pleas for a harsher sentence “were incidental to presentation of facts.”

Finally, Eberhard argued that the court should not have imposed an aggravating role enhancement. Unfortunately for him, he did not contest the enhancement at sentencing and the circuit deemed it “waived.”