Vulnerable Victim Case Analysis

Listen to this article

The court asserts that it can resolve the tension between those vulnerable victim cases requiring that the victim be targeted for his vulnerability, and those that don’t, by noting that, even in those cases where the victim was not targeted for vulnerability, the defendant had face-to-face contact with the victim, and knew the victim was vulnerable.

By doing so, the court avoids having to overrule any of the seven cases it cites, or even withdraw any language from them. However, while the court’s resolution works for six of the cases cited, it does not work for one, U.S. v. Grimes, 173 F.3d 634 (7th Cir. 1999).

The defendant in Grimes found his victims by advertising in newspapers of general circulation, and never had any face-to-face contact with any of them. The court upheld application of the vulnerable victim enhancement, however, reasoning, "Only a desperate person, unable to obtain credit by a normal route, would plunk down $198 for the right just to apply for a loan. Such people are rightly regarded as unusually vulnerable. … The wording of Grimes’ advertisement was calculated to ‘turn off’ the sophisticated readers but hit right between the eyes of the unsophisticated."

The court stated that its decision may be different, if Grimes had advertised in media unlikely to be read by the unsophisticated, citing Architectural Digest as an example.

The reasoning in Grimes may be sound, but it is not clear how it can be reconciled with the following statement in the opinion in the case at bar: "The tension can be dissolved by noting the difference between a nonindividualized fraudulent solicitation communicated indiscriminately by mail or television or other media to a large audience of potential victims, and a personalized solicitation in which the defendant deals face to face with his victims. In the first type of case, the presence of vulnerable victims is accidental and unavoidable and the defendant makes no effort to exploit anyone’s vulnerability."

If this statement is correct, then Grimes was incorrectly decided, for he solicited victims indiscriminately via a general circulation medium, and had no face-to-face contact with the victims. The court’s finding — that Grimes calculated his advertisement would only appeal to the vulnerable — will always be true when considering such frauds.

Consider the ubiquitous e-mail solicitations purporting to be from former government officials in Africa, and offering to wire millions of dollars to the bank account of the recipient, when in fact the sender intends to empty the bank account of anyone who sends his account number.

Under the reasoning in Grimes, a defendant convicted of fraud for such a scheme would properly have his sentence enhanced for targeting vulnerable victims. The sophisticated persons are "turned off" and the unsophisticated are "hit right between the eyes."

Based on what the court said in the case at bar, however, no enhancement would be applicable, even though the victims would in fact all be vulnerable. The solicitations are made daily to the sophisticated as well as the vulnerable.

Should anyone ever be prosecuted in the Seventh Circuit for such a scam, the court will have to resolve the new tension it has created, while it was attempting to resolve the old one.

But it is likely the court’s dicta — stating that defendants who succeed on Booker challenges can receive even longer sentences on remand, without any double jeopardy issue arising — for which this case will be most frequently read.

In the wake of this dicta, defendants should think long and hard about whether they really want to be resentenced under advisory guidelines. Attorneys seeking resentencing, rather than just a Paladino remand for their clients, should also be very familiar with Alabama v. Smith, 490 U.S. 794 (1989), and North Carolina v. Pearce, 395 U.S. 711 (1969), before the resentencing hearing.

Discussing the merits of the court’s dicta — that the general rule against higher sentences after a successful appeal does not apply after Booker remands — is beyond the scope of this article. However, should the situation arise, defense attorneys should raise not only Double Jeopardy, but should also raise the Ex Post Facto Clause as grounds why a higher sentence cannot be imposed.

A recent district court case, U.S. v. Gray, 2005 WL 613645 (S.D.W.Va., Mar. 17, 2005), contains an excellent discussion of whether the Booker remedy may be applied to the disadvantage of a defendant whose conduct predates Booker, without violating the ex post facto and due process clauses.

	Related Links 7th Circuit Court of Appeals Related Article 7th Circuit: ‘Be careful what you ask for…’

The court concluded that it may do so, but defense attorneys can nevertheless find a good blueprint in the rejected argument for making their own objection.

Furthermore, the argument can be made, not just at resentencings in which the court imposes an above-guidelines sentence, but in any original sentencing for a crime committed before Booker was decided. In fact, the Gray case involved an original sentencing, rather than a resentencing after remand.

On another Booker issue, the decision in Gray is also noteworthy for a lengthy discussion on whether, in light of Booker, the Confrontation Clause applies at sentencing, as some have
suggested it may. The court concluded that, not only does Booker not change previous Supreme Court precedent — the clause does not apply — but, because the guidelines are no longer mandatory, the case for applicability of the Confrontation Clause is even less strong than before Booker.

– David Ziemer

Click here for Main Story.

David Ziemer can be reached by email.