IN THE UNITED STATES COURT OF APPEALS FOR … Counsel of record in this Court. IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Comes now the Petitioner, Nathan Simons,

* Counsel of record in this Court.

IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Comes now the Petitioner, Nathan Simons, by and through his attorneys,

Russell P. Butler * and Catherine Chen, Maryland Crime Victims’ Resource

Center, Inc., and E. Joel Wesp *, who pursuant to Rule 21 of the Federal Rules of

Appellate Procedure and Local Rule 21 state as follows:

EXPEDITED REVIEW PER STATUTE

Pursuant to 18 U.S.C. § 3771(d)(3), this Court must take up and decide this

application forthwith within seventy-two (72) hours after this petition has been

filed. (Emphasis added.)

RELIEF SOUGHT

Petitioner Nathan Simons requests that this Honorable Court issue a writ of

mandamus under 18 U.S.C. § 3771 directing the United States District Court for

the Southern District of Ohio, Eastern Division, to immediately allow Petitioner’s

counsel access to the file regarding United States v. Christopher McPherson, a/k/a

Christopher Keifer, case number 2:08CR162, in order for Petitioner to enforce his

rights under the Crime Victims’ Rights Act, the Mandatory Victims’ Restitution

Act, and the Constitution of the United States of America, or, in the alternative,

direct the district court to stay the proceedings and to hold an expedited hearing on

the Petitioner’s motion. Petitioner also requests that this Honorable Court

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determine if the United States District Court for the Southern District of Ohio,

Eastern Division made appropriate findings behind the sealing of the case pursuant

to the mandates of the Constitution of the United States of America. The requested

writ is necessary for Petitioner to enforce his rights under the Crime Victims’

Rights Act, the Mandatory Victims’ Restitution Act, and the Constitution of the

United States of America.

ISSUES PRESENTED

I. Whether the district court violated the rights of the victim

under the Crime Victims’ Rights Act and/ or the

Mandatory Victims’ Restitution Act.

II. Whether the district court violated the rights of the victim

under the Constitution of the United States of America.

FACTS NECESSARY TO UNDERSTAND THE ISSUES PRESENTED 1

On May 30, 2008, Christopher E. McPherson, a/k/a Christopher E. Keifer

(hereinafter “Defendant”) was arrested on Ohio State charges, including grand

theft. At that time, Secret Service Agent Nicholas Shelton and Detective Rick

Meadows III spoke with Petitioner, Nathan Simons, regarding checks drawn and

accounts created by the Defendant in Mr. Simons’ name.

In June 2008, Secret Service Agent Shelton informed Mr. Simons that the

state of Ohio would be dropping its charges, and that the federal government

1 See Affidavit of Nathan Simons attached hereto and incorporated by reference as Exhibit A as presented to the district court for a more comprehensive explanation of facts.

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would be charging the Defendant for, among other charges, bank fraud. Agent

Shelton asked if Mr. Simons would testify that it was not he who had written

checks for $10,000.00 from a Swift Financial account. Mr. Simons agreed. After

Mr. Simons signed a document in Agent Shelton’s presence, Agent Shelton

confirmed that the signatures on the checks appeared to be forged, and not that of

Mr. Simons.

On June 9, 2008, the United States filed a criminal complaint against the

Defendant. As of August 25, 2008, more than two months after the complaint was

filed, the entirety of the file was sealed, including even the case number on the

matter.

Mr. Simons and his two minor sons lost $36,730.00 as a direct result of

Defendant’s fraudulent scheme and conspiracy.

The Defendant stole Mr. Simons’ identity and opened numerous accounts in

Mr. Simons’ name, incurring $428,524.25 in charges. Mr. Simons has spent

seventy-two hours working to clear a fraction of these charges, and anticipates

spending countless more in his quest to clear those charges that remain.

Due to Defendant’s fraudulent actions, Mr. Simons resigned a position he

had for approximately six years at Abbott Laboratories in order to work for the

Defendant; Mr. Simons was unemployed from the date of the Defendant’s arrest,

May 30, 2008, until September 2, 2008.

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Mr. Simons’ counsel has attempted to access information regarding the

indictment, plea bargain and sentencing date via the United States Party/ Case

Index (hereinafter “PACER”).2 As of October 3, 2008, the district court clerk

informed counsel that the matter was sealed, and that not even a case number could

be provided to counsel.

On November 5, 2008, counsel filed a motion to unseal requesting that the

district court allow Petitioner access to the matter in order to enforce his rights

under the Crime Victims’ Rights Act.3 The district court has not ruled on the

motion to unseal.

Neither Mr. Simons nor his counsel can obtain any information about the

Defendant’s alleged plea or the sentencing hearing date.

STANDARD OF REVIEW

Under the Crime Victims’ Rights Act (hereinafter “CVRA”), when a victim

attempts to assert his or her rights provided by the statute, “[t]he district court shall

take up and decide any motion asserting a victim’s right forthwith. If the district

court denies the relief sought, the Movant may petition the court of appeals for a

writ of mandamus.” 18 U.S.C. § 3771(d)(3) (emphasis added). While the district

2 See Affidavits of Russell P. Butler, Esq. and Bridgette Harwood attached hereto and incorporated herein by

reference as Exhibits B and C, respectively for more comprehensive explanation of counsel’s efforts to attempt to

gain access to information regarding United States v. Christopher McPherson, a/k/a Christopher Keifer, case

number 2:08CR162 and assert Mr. Simon’s rights in the district court. 3 See motion to unseal attached hereto and incorporated by reference as Exhibit D as presented to the district

court.

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court has not ruled, its failure to decide the matter forthwith is a de facto denial of

rights.

Routinely, “as the writ is one of ‘the most potent weapons in the judicial

arsenal,’ three conditions must be satisfied before it may issue.” Cheney v. United

States Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380 (2004), citing Kerr

v. United States Dist. Court for Northern Dist. of Cal., 426 U.S. 394, 403 (1976).

Supra. However, the provision to victims of crime of the right to petition for

a writ of mandamus “establish[es] a procedure where a crime victim can, in

essence, immediately appeal a denial of their rights by a trial court to the court of

appeals, which must rule ‘forthwith.’ Simply put, the mandamus procedure allows

an appellate court to take timely action to ensure that the trial court follows the rule

of law set out in this statute.” 150 Cong. Rec. S4262 (April 22, 2004 (statement of

Sen. Feinstein)) (emphasis added); see also Moore’s Fed. Prac. 3d § 321.14[1]

(2008) (“because Congress has chosen mandamus as the mechanism for review

under the CVRA, the victim need not make the usual threshold showing of

extraordinary circumstances to obtain mandamus relief.”).

“Remedial legislation should be construed broadly to effectuate its

purposes.” Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). Because the CVRA

is remedial legislation, this provision allowing for victims to petition the court of

appeals for a writ of mandamus is broadly construed to allow victims of crime to

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petition for a writ of mandamus under a lower standard of review, the ordinary

appellate standard of review.

“It is clear . . . that a petitioner 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 determination through a writ of

mandamus.” In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 562 (2d Cir. 2005).

The Second Circuit based its opinion on “the plain language of the CVRA” as

indicative that Congress chose “a petition for mandamus as a mechanism by which

a crime victim may appeal a district court’s decision denying relief sought under

the provisions of the CVRA.” Id.

Reviewing a similar mandamus petition, the Ninth Circuit also found that

the CVRA provides for expedited review of petitions for writ of mandamus “and

requires a reasoned decision in case the writ is denied.” Kenna v. United States

Dist. Ct. for the Central Dist. of California, 435 F.3d 1011, 1017 (9th Cir. 2006)

(emphasis added). The court also found that the CVRA mandamus review process

is a “unique regime that does, in fact, contemplate routine interlocutory review of

district court decisions denying rights under the statute.” See id (emphasis added).

There, the Ninth Circuit found that, because of this “unique regime” created by the

CVRA for mandamus petitions, “we must issue the writ whenever we find that the

district court’s order reflects an abuse of discretion or legal error.” Id.

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In an unpublished opinion, the Third Circuit concurs that the CVRA

establishes a different standard of review of mandamus petitions for victims of

crime: “mandamus relief is available under a different, and less demanding,

standard under 18 U.S.C. § 3771.” In re Walsh, 229 Fed.Appx. 58 at *2 (3rd Cir.

2007) (emphasis added).

The Fourth Circuit, in another unpublished opinion, also weighed in on the

side of the Second and Ninth Circuits. In re Doe, 264 Fed.Appx. 260 at *2 (4th Cir.

2007). Although the court did not decide the issue, because it determined that the

Petitioner was not entitled to rights under the CVRA, it did indicate that

mandamus petitions filed under the CVRA are not necessarily subject to this stringent standard of review. In creating the CVRA, Congress specifically chose a mandamus petition as the appropriate vehicle for appellate review of an order denying a crime victim’s assertion of a right protected thereunder. See 18 U.S.C. § 3771(d)(3). Because the use of mandamus in this context results from a deliberative legislative choice and not adroit or devious pleading, it is not clear that a petitioner under the CVRA should be subjected to the same stringent standard of review as traditional petitioners.

Id.

Blatantly ignoring the legislative history and declining to consider the in-

depth analysis of the statutory language and history by the Second and Ninth

Circuits in analyzing the statutory language of the CVRA, the Tenth Circuit found

that ordinary mandamus standards apply when a victim petitions for review under

18 U.S.C. § 3771(d)(3). In re Antrobus, 519 F.3d 1123, 1125. The Tenth Circuit

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based its decision to “respectfully disagree . . . with the decisions of our sister

courts” on the rationale that “Congress could have drafted” the CVRA using

language providing for “immediate appellate review” rather than the term

“mandamus.” Id. at 1124 - 1125.

Shortly thereafter, the Fifth Circuit sided with the Tenth Circuit in denying

the use of the ordinary appellate standard to review a victim’s petition for a writ of

mandamus under the CVRA, tersely stating only that the court agreed with the

Tenth Circuit for the reasons cited in Antrobus. In re Dean, 527 F.3d 391, 394 (5th

Cir. 2008).

Here, although the district court has not ruled, it clearly has not taken up and

decided Mr. Simon’s motion forthwith, nor has the Court ensured that the crime

victim has been afforded his rights, as required by the CVRA. See 18 U.S.C. §

3771(d)(3) (“The district court shall take up and decide any motion asserting a

victim’s right forthwith.”). As such, Petitioner submits that this Court should

follow the authority of the Second, Ninth, Third and Fourth Circuits and apply an

ordinary appellate review standard of this petition as mandated by the plain

language and legislative history of the CVRA.

Although Petitioner is a victim entitled to rights under the Mandatory

Victims’ Restitution Act (hereinafter “MVRA”) (18 U.S.C. § 3663A) and CVRA,

including the right to petition for a writ of mandamus under ordinary appellate

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standards of review, Petitioner still qualifies for mandamus under the ordinary

Cheney standards of review.

“The Supreme Court and all courts established by Act of Congress may

issue all writs necessary or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). Although the

writ of mandamus is a “drastic and extraordinary remedy reserved for really

extraordinary causes,” the matter before this Court qualifies easily as an

“extraordinary cause.” Cheney, 542 U.S. at 380. The Defendant has placed the

victim in a situation which the district court has further exacerbated, a situation

that satisfies all three conditions enumerated in Cheney. Id. at 380-81, citing Kerr,

426 U.S. 394. “First, the party seeking issuance of the writ must have no other

adequate means to attain the relief he desires.” See id. “Second, the petitioner

must satisfy the burden of showing that his right to issuance of the writ is clear and

indisputable.” See id. “Third, even if the first two prerequisites have been met,

the issuing court, in the exercise of its discretion, must be satisfied that the writ is

appropriate under the circumstances.” See id.

Before Cheney was decided, this Circuit found that “An error of law,

standing alone, is not sufficient to warrant mandamus. However, mandamus can

be used to confine an inferior court to a lawful exercise of its prescribed

jurisdiction or to compel it to exercise its authority when it is its duty to do so.” In

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re Parker, 49 F.3d 204, 207 (6th Cir. 1995). In this case, the district court has

clearly and indisputably failed to act in the face of the CVRA’s mandate to do so.

Petitioner is entitled to mandamus under either the ordinary appellate

standard of review anticipated by the CVRA or under the traditional mandamus

standard of review.

REASONS WHY THE WRIT SHOULD ISSUE

I. THE DISTRICT COURT IMPROPERLY DENIED PETITIONER’S RIGHTS UNDER

THE CRIME VICTIMS’ RIGHTS ACT AND THE MANDATORY VICTIMS’

RESTITUTION ACT.

A. PETITIONER IS A “VICTIM” AS DEFINED BY BOTH THE CVRA AND

MVRA AND IS THEREFORE ENTITLED TO THE RIGHTS ENUMERATED

THEREUNDER.

Mr. Simons is a victim of the Defendant. Based on Mr. Simons’

involvement with law enforcement, the events leading up to Defendant’s arrest,

and the broad definition of “victim” under the CVRA and MVRA, Mr. Simons is a

victim, as he was directly harmed by the Defendant’s scheme, conspiracy and

pattern. 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2) (“The term ‘victim’ means a person

directly and proximately harmed as a result of the commission of an offense for

which restitution may be ordered including, in the case of an offense that involves

as an element a scheme, conspiracy, or pattern of criminal activity, any person

directly harmed by the defendant’s criminal conduct in the course of the scheme,

conspiracy or pattern.”). Under the CVRA, “The term ‘crime victim’ means a

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person directly and proximately harmed as a result of the commission of a Federal

offense or an offense in the District of Columbia.” 18 U.S.C. § 3771(e).

The Eleventh Circuit recently reviewed 18 U.S.C. § 3771(e), examining the

definition of “victim” under the CVRA. The court ruled that to determine who

qualified as a “victim,” it was necessary to first identify the behavior constituting

commission of a Federal offense, then to identify the direct and proximate effects

of that behavior on parties other than the United States. And if the criminal

behavior caused a party direct and proximate harmful effects, then the party is a

victim under the CVRA. In re Janis W. Stewart, 2008 WL 5265344 at 2 (11th Cir.

2008).

Under the MVRA, “the term ‘victim’ means a person directly and

proximately harmed as a result of the commission of an offense for which

restitution may be ordered, including, in the case of an offense what involves as an

element a scheme, conspiracy, or pattern of criminal activity, any person directly

harmed by the defendant’s criminal conduct in the course of the scheme,

conspiracy, or pattern.” 18 U.S.C. § 3663A(a)(2). See also, U.S. v. Seligsohn, 981

F.2d 1418, 1422 (3d Cir. 1992). Similarly, the Seventh Circuit provides that

restitution awards under the MVRA are applicable to three distinct circumstances:

(1) where a victim is directly harmed by the offender’s specific conduct that is the

basis of the offense of the conviction; (2) where a victim is directly harmed by the

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offender’s conduct in the course of committing an offense that involves as an

element a scheme, conspiracy or pattern; and (3) where the parties so agreed in a

plea agreement. United States v. Randle, 324 F.3d 550, 556 (7th Cir. 2003). Here,

Mr. Simons was harmed by the Defendant in the course of Defendant’s scheme,

conspiracy and pattern to defraud Mr. Simons, his sons, and numerous banks to

enrich his own coffers.

Admittedly, the matter here is unique, because the case has been completely

sealed. Because the matter has been sealed, there is no way for Mr. Simons to

know whether he is a victim of the charge to which the Defendant pled guilty.

However, the Defendant was arrested as a result of the fraudulent accounts he

opened using Mr. Simons’ name. The Secret Service Agent, Nicholas Shelton,

investigating the Defendant reported to Mr. Simons that the Defendant would be

charged with bank fraud. Agent Shelton asked Mr. Simons if he would testify that

it was not Mr. Simons who had written checks to the McPherson Property Group

from a Swift Financial account. Upon observing Mr. Simons’ signature, Agent

Shelton confirmed that the signatures on checks and requests to open accounts

were clearly forged.

The Defendant defrauded Mr. Simons, obtaining hundreds of thousands of

dollars of credit using Mr. Simons’ personal information and tricked Mr. Simons

and his sons into purchasing shares of a fraudulent corporation. To date, Mr.

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Simons continues to wrestle with creditors, and has devoted significant time trying

to remedy the situation and restore his financial circumstances to what they were

before the Defendant destroyed them. See 18 U.S.C. § 3663(b)(6), as amended on

May 14, 2008 (“in the case of an offense under sections 1028(a)(7) or 1028A(a) of

this title, restitution may be ordered from a defendant to a victim in an amount

equal to the value of the time reasonably spent by the victim in an attempt to

remediate the intended or actual harm incurred by the victim from the offense”). 4

Even if Mr. Simons is not named as a victim under the indictment, the

Eleventh Circuit found that

The CVRA does not limit the class of crime victims to those whose identity constitutes an element of the offense or who happen to be identified in the charging document. The statute, rather, instructs the district court to look at the offense itself only to determine the harmful effects the offense has on parties. Under the plain language of the statute, a party may qualify as a victim, even though it may not have been the target of the crime, as long as it suffers harm as a result of the crime’s commission.

Stewart, 2008 WL 5265344 at 3. The Eleventh Circuit held that the petitioners in

the case before it were victims under the CVRA although they were not mentioned

in the information, because the defendant’s criminal activity directly and

proximately harmed them. See id.

Finally, Senator Jon Kyl, as the primary drafter of the CVRA, made

extensive comments regarding the legislative intent behind the statute. Regarding

4 Under 18 U.S.C. § 3771(a)(6), a victim is entitled to full restitution as provided by law.

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subsection (e), in which “crime victim” is defined, Senator Kyl indicated that “This

is an intentionally broad definition because all victims of crime deserve to have

their rights protected, whether or not they are the victim of the count charged.”

150 Cong. Rec. S10912 (October 9, 2004 (statement of Sen. Kyl)).

The facts surrounding the criminal matter in the district court, the plain

language of the CVRA as well as its legislative history obligate a determination

that Mr. Simons is a victim of the Defendant and is entitled to the rights

enumerated in the CVRA and the MVRA. Mr. Simons’ motion filed in the district

court requests access to the case file so that Mr. Simons can enforce his rights

under the CVRA and MVRA. As such, the motion raises a victims’ rights issue as

covered by the CVRA mandating the district court to act on the motion forthwith.

18 U.S.C. § 3771(d)(3) (“The district court shall take up and decide any motion

asserting a victim’s right forthwith.”).

The CVRA and the MVRA obligate a determination that Mr. Simons is a

victim of the Defendant and is entitled to the rights enumerated in the CVRA.

B. THIS COURT SHOULD ORDER THE DISTRICT COURT TO COMPLY WITH

THE MANDATE OF THE CRIME VICTIMS’ RIGHTS ACT TO ISSUE A

DECISION FORTHWITH ON PETITIONER’S MOTIONS ASSERTING

RIGHTS AND ALSO TO ALLOW VICTIM’S COUNSEL ACCESS THE

CRIMINAL CASE FILE.

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The district court itself is obligated to ensure that Mr. Simons is afforded the

rights subscribed in subsection (a) of Section 3771.5 18 U.S.C. § 3771(b)(1) (“In

any court proceedings involving an offense against a crime victim, the court shall

ensure that the crime victim is afforded the rights described in subsection (a).”).

To this end, the CVRA plainly states, “The district court shall take up and decide

any motion asserting a victim’s right forthwith.” 18 U.S.C. § 3771(c)(3) (emphasis

added). Mr. Simons’ counsel filed a motion to unseal the matter in order to

enforce Mr. Simons’ rights on November 5, 2008, almost three months prior to

this Petition. After some initial discussions to schedule a hearing and to inquire as

to the filing of opposition papers, the Court has had no communications with Mr.

Simons’ counsel. Counsel requested a copy of opposition papers that were not

served on him, and was informed by the court that certain parts may need to be

redacted, but that the court could probably provide a copy to counsel. See (Russell

P. Butler Aff. Ex. B at 3). The last communication from the Court indicated only

that counsel should contact the Deputy Clerk who has since not returned counsel’s

telephone calls or e-mail. See id.

5 18 U.S.C. § 3771(b) (1) refers to the following rights under 3771 (a) which enumerate the eight rights granted to a

crime victim: (1) The right to be reasonably protected from the accused; (2) The right to reasonable, accurate, and

timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or

escape of the accused; (3) The right not to be excluded from any such public court proceeding, unless the court,

after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered

if the victim heard other testimony at that proceeding; (4) The right to be reasonably heard at any public

proceeding in the district court involving release, plea, sentencing, or any parole proceeding; (5) The reasonable

right to confer with the attorney for the Government in the case; (6) The right to full and timely restitution as

provided in law; (7) The right to proceedings free from unreasonable delay; and (8) The right to be treated with

fairness and with respect for the victim’s dignity and privacy.

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The CVRA indicates, “If the district court denies the relief sought, the

Movant may petition the court of appeals for a writ of mandamus.” 18 U.S.C. §

3771(d)(3). Here, although the district court has not explicitly denied the relief

sought, it also has stopped all communication with Mr. Simons’ counsel, failed to

schedule a hearing and refused to provide Mr. Simons’ counsel a copy of an ex

parte answer filed in response to Mr. Simons’ motion. This abrupt termination of

communication constitutes a de facto violation of Section (d)(3) of the CVRA and

the result is a continuing denial of Mr. Simons’ rights under Section (a) of the

CRVA and the district court’s obligations under Section (b)(1) the CVRA. Mr.

Simons continues to wait in limbo, wrestling with the morass of creditors, not

knowing if the district court will provide him his rights under law.

Significantly, these rights are time-sensitive; they must be afforded by the

district court before the trial or plea and the sentencing. Counsel believes that the

Defendant pled guilty in this matter during the fall of 2008, and is incarcerated

pending sentencing. Mr. Simons has no other venue to which he may address his

requests: (1) to be reasonably protected from the Defendant; (2) to be notified of

the sentencing date; (3) to not be excluded from the sentencing; (4) to be

reasonably heard at the plea and sentencing; (5) to confer with the attorney for the

Government in the matter; (6) to be provided with full and timely restitution as

provided by law; (7) for proceedings free from unreasonable delay and (8) to be

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treated with fairness and respect for his dignity and privacy. 18 U.S.C. § 3771(a).

Mr. Simons has, up to this point, asserted his rights only to wait and wait for the

district court to take action. However, as a presumptive sentencing date fast

approaches, possibly as early as February 2009, it is becoming increasingly clear

that the district court will not do anything unless its hand is forced. If the

Defendant is sentenced without Mr. Simons’ participation, any such sentence

would be an additional denial to Mr. Simons of his rights under the CVRA and

effectively subject him to additional victimization beyond what he suffered at the

hands of the Defendant in the first place. Any attempt to enforce his rights once

the district court has sentenced the Defendant will certainly be argued as moot. As

such, Mr. Simons has no other adequate means to attain the relief he desires, and

prompt judicial action by this Court is required.

If a plea has in fact occurred, Mr. Simons’ rights will already have been

violated and each day without relief further exacerbates such violation. Mr.

Simons has rights granted to him under the CVRA and MVRA, and he is merely

requesting that those rights be enforced under the rule of law.

C. BY RESTRICTING PETITIONER’S ACCESS, THE DISTRICT COURT IS

DENYING PETITIONER’S RIGHTS UNDER THE CRIME VICTIMS’

RIGHTS ACT AND THE MANDATORY VICTIMS’ RESTITUTION ACT.

Federal criminal procedure and the CVRA explicitly provide to victims of

crimes the rights to be notified of, not to be excluded from, to be heard at and to

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request restitution at criminal proceedings relating to offenses committed against

them. See, e.g., 18 U.S.C. §§ 3510, 3663A, and 3771. The CVRA plainly states

that Mr. Simons has the “right not to be excluded from any public court

proceeding, unless the court, after receiving clear and convincing evidence,

determines that testimony by the victim would be materially altered if the victim

heard other testimony at that proceeding.” 18 U.S.C. § 3771(a)(3).

Mr. Simons has requested that the matter be opened to him in order to

enforce his rights including that he be given notice of the date of the sentencing at

which he has requested to be heard and to ask for restitution. Mr. Simons may

have already been improperly excluded from a plea hearing in this matter and with

his right to confer with the Government, because the district court’s sealing of the

matter denied him any notice and opportunity to attend. He is requesting that his

remaining rights be accorded in full.

It may be argued that because the proceeding has been sealed, it has been

removed from the spectrum of the CVRA. However, the CVRA clearly states that

“In any court proceeding involving an offense against a crime victim, the court

shall ensure that the crime victim is afforded the rights described in subsection

(a) [Rights of crime victims].” 18 U.S.C. § 3771(b)(1) (emphasis added).

Although paragraphs two, three and four of subsection (a) include language

limiting those rights to “public” court proceedings, subsection (b) requires that the

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court shall not only ensure that “the crime victim is afforded [his or her] rights

described in subsection (a),” but also requires that “The reasons for any decision

denying relief under this chapter shall be clearly stated on the record.” 18 U.S.C. §

3771(b)(1). Therefore, regardless of the “public” court proceedings language in

subsection (a), the district court is required to (1) ensure that Mr. Simons is

afforded his rights as described in subsection (a) and (2) consider reasonable

alternatives to the exclusion of Mr. Simons from the criminal proceedings. The

plain statutory language indicates that Congress clearly intended that victims are

permitted to be present at proceedings other than grand jury proceedings.

Moreover, the matter was sealed at a point after Mr. Simons should have

been notified of the proceedings. The Government and the district court were

under obligations with respect to Mr. Simon’s rights, before the matter was sealed

in the fall of 2008, to notify or ensure Mr. Simons of his rights to participate, and

they both failed to comply with those obligations. This continuing violation has

only been exacerbated by the affirmative exclusion of Mr. Simons in the sealing of

the matter.

Furthermore, “a United States district court shall not order any victim of an

offense excluded from the trial of a defendant accused of that offense because such

victim may, during the sentencing hearing, make a statement or present any

information in relation to the sentence.” 18 U.S.C. § 3510. Here, Congress did not

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limit this right to proceedings that are public. Sealing the matter without making

an exception for Mr. Simons is a clear violation of this provision.

The language of subsection (a)(6) also clearly does not limit the right to full

and timely restitution to public proceedings. The language plainly states, “A crime

victim has the following rights: the right to full and timely restitution as provided

in law.” 18 U.S.C. § 3771(a)(6).

In an examination of the floor debate of the CVRA, Senator Kyl suggested

in a colloquy that the CVRA would be applicable to public proceedings, thus

excluding grand jury proceedings and perhaps where, upon request by the

government or defense, the court orders the proceedings closed, for example, in

organized crime or national security cases. 150 Cong. Rec. S10910 (October 9,

2004) (statement of Sen. Kyl). However, even if organized crime or national

security were possibly implicated in this matter, the language of the CVRA plainly

mandates that the district court ensures that Mr. Simons is afforded the rights

described in subsection (a). 18 U.S.C. § 3771. Again, an entirely reasonable

alternative to sealing the entire matter would be to permit Mr. Simons and his

counsel access to the matter to enforce Mr. Simons’ rights under the CVRA, the

MVRA, and the United States Constitution.

Even if the district court validly decided to seal the matter because organized

crime or national security was implicated, the CVRA plainly states that “The

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reasons for any decision denying relief under this chapter shall be clearly stated on

the record.” 18 U.S.C. § 3771(b)(1). Neither Mr. Simons nor his counsel has been

provided with any reason for denying Mr. Simons’ requested relief.

Senator Kyl emphasized the importance of this language stating that:

I would also like to comment on (b), which directs courts to ensure that the rights in this law be afforded and to record, on the record, any reason for denying relief of an assertion of a crime victim. This provision is critical because it is in the courts of this country that these rights will be asserted and it is the courts that will be responsible for enforcing them. Further, requiring a court to provide the reasons for denial or relief is necessary for effective appeal of such denial.

150 Cong. Rec. S10911 (October 9, 2004) (statement of Sen. Kyl). Clearly, the

CVRA mandates the district court to: (1) issue a decision forthwith regarding Mr.

Simons’ request to enforce his rights under the CVRA and, if the decision denies

Mr. Simons’ request, then (2) provide the reasons for the denial on the record, and

(3) also to treat victims of crime with fairness.

The legislative history of the CVRA further indicates that the statute

encompasses due process rights of victims of crime. Senator Kyl stated, regarding

subsection (a)(8) of 18 U.S.C. § 3771:

The broad rights articulated in this section are meant to be rights themselves and are not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary victimization at the hands of the criminal justice system. This provision is intended to direct government agencies and employees, whether they are

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in executive or judicial branches, to treat victims of crime with the respect they deserve and to afford them due process.

150 Cong. Rec. S10911 (October 9, 2004) (statement of Sen. Kyl). “Orders issued

without legal basis, conflicts of interest, and generally mysterious conduct reflect

exactly the sort of sloppy adjudication that at thorough district court proceeding,

i.e., due process, is meant to avoid.” United States v. Perry, 360 F.3d 519, 526 (6th

Cir. 2004).

Under the MVRA,

Notwithstanding any other provision of law, when sentencing a defendant convicted of an offense described in subsection (c), the court shall order, in addition to, or in the case of a misdemeanor, in addition to or in lieu of, any other penalty authorized by law, that the defendant make restitution to the victim of the offense.

18 U.S.C. § 3663A(a)(1). Subsection (c) limits mandatory restitution to

“convictions of or plea agreements relating to charges for any offense that is . . . an

offense against property under . . . [T]itle [18] . . . including any offense committed

by fraud or deceit.” Certainly, the charges levied against, and to which the

Defendant pled guilty, fall within Title 18 – Crimes and Criminal Procedure.

Mr. Simons qualifies as a victim under the MVRA definition:

a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern.

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18 U.S.C. § 3663A(a)(2). The Defendant not only illegally created hundreds of

thousands of dollars of debt in Mr. Simons’ name, but also stole through trickery,

deceit and fraudulent statements, tens of thousands of dollars from Mr. Simons and

his sons, thereby causing Mr. Simons direct and proximate harm.

Even if the district court found that Mr. Simons’ rights under the CVRA

were limited due to, for example, organized crime or national security reasons, the

MVRA plainly states that “Notwithstanding any other provisions of law, . . . the

court shall order . . . that the defendant make restitution to the victim of the

offense.” 18 U.S.C. § 3663A(a)(1) (emphases added). Congress included no

limitations on the clause to public proceedings. Mr. Simons is entitled to

restitution in this matter under both the CVRA and the MVRA, and

notwithstanding any orders sealing the matter, the court should afford Mr. Simons

restitution under law.

Furthermore, in the entirely hypothetical possibility that the matter was

sealed due to the implication of organized crime or national security, the district

court could allow access to Mr. Simons and his counsel by including them in the

sealing order.

II. THE DISTRICT COURT VIOLATED THE RIGHTS OF MR. SIMONS UNDER THE

CONSTITUTION OF THE UNITED STATES OF AMERICA.

A. PETITIONER HAS CONSTITUTIONAL RIGHT OF ACCESS UNDER THE FIRST

AMENDMENT AND COMMON LAW AS WELL AS DUE PROCESS RIGHTS

UNDER THE FIFTH AMENDMENT.

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Mr. Simon has a First Amendment right of access to public prosecution. “A

presumption of openness inheres in the very nature of a criminal trial under this

Nation’s system of justice.” Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555, 573 (1980). This presumption of openness certainly extends to the matter

herein. In Richmond Newspapers, the Supreme Court noted that “the trial judge

made no findings to support closure; no inquiry was made as to whether alternative

solutions would have met the need to ensure fairness; there was no recognition of

any right under the Constitution for the public or press to attend the trial.” Id. at

580 - 81. The Court held that “Absent an overriding interest articulated in

findings, the trial of a criminal case must be open to the public.” See id. The

Supreme Court vacated the judgment of a California court of appeal stating, “not

only was there a failure to articulate findings with the requisite specificity but there

was also a failure to consider alternatives to closure and to total suppression of the

transcript.” Press-Enterprise, 464 U.S. at 513.

Similarly here, there is no record whatsoever available to Mr. Simons to

ascertain the basis on which the district court has excluded him from these

proceedings. “Where, as in the present case, the State attempts to deny the right of

access in order to inhibit the disclosure of sensitive information, it must be shown

that the denial is necessitated by a compelling governmental interest, and is

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narrowly tailored to serve that interest.” Globe Newspaper Company v. Superior

Court for the County of Norfolk, 457 U.S. 596, 606-07 (1982).

The Constitution of the United States demands that, at a minimum, the

district court considers alternatives to sealing the matter to meet the need to ensure

fairness, including the possibility of opening the matter solely to Mr. Simons and

his counsel, or, if the district court seals the matter against the victim, it must

demonstrate that “the denial is necessitated by a compelling governmental interest,

and is narrowly tailored to serve that interest.” See id. Again, if a compelling

governmental interest exists, inclusion of Mr. Simons and his counsel in the

sealing order to ensure that they do not disclose information to the public is an

entirely viable alternative that would satisfy the mandates of the CVRA, the

MVRA and the Constitution as well as safeguarding the interests of the

government and the Defendant.

Further, as Mr. Simons continues to struggle with not only the emotional

impact of being the Defendant’s victim but also the extreme financial hardship into

which the Defendant has plunged him, this Circuit should consider that “public

proceedings vindicate the concerns of the victims and the community in knowing

that offenders are being brought to account for their criminal conduct.” Press-

Enterprise, 464 U.S. at 509.

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Not only does Mr. Simons have a First Amendment right of access to the

matter, he also has due process rights under the Fifth Amendment, as recognized

by this Court in United States v. Perry, 360 F.3d 519, 525 (6th Cir. 2004). In

Perry, this Circuit found that, because “in Ohio, judgment liens create property

interests, . . . and the federal constitution prevents the deprivation of these Ohio

property interests without due process . . ., once Intervenor obtained a valid lien

under state law . . . she also obtained a property right of constitutional magnitude.”

Id. Here, the district court has blocked Mr. Simons from even attempting to

establish that right by excluding him from the matter despite Mr. Simons’ due

process rights guaranteed by the Constitution.

B. THIS COURT SHOULD DETERMINE IF APPROPRIATE FINDINGS BEHIND

THE SEALING OF THE CASE WERE MADE PURSUANT TO PRESS-

ENTERPRISE V. SUPERIOR COURT OF CALIFORNIA IN ORDER TO

PROVIDE PETITIONER THE OPPORTUNITY TO CHALLENGE THE

APPROPRIATENESS OF THE ORDER AND PREVENT FURTHER VIOLATIONS

OF MR. SIMONS’ RIGHTS UNDER THE CRIME VICTIMS’ RIGHTS’ ACT,

THE MANDATORY VICTIMS’ RESTITUTION ACT AND THE CONSTITUTION

OF THE UNITED STATES OF AMERICA.

The CVRA has bestowed eight specific rights upon victims of crime which

Mr. Simons is attempting to invoke invoking in district court. Additionally, the

MVRA has provided to Mr. Simons a mandatory right to restitution. It is

absolutely indisputable that Mr. Simons is entitled to enforcement of his rights

under the CVRA and the MVRA beyond his rights under the First Amendment.

By sealing the entire criminal case without providing the minimally requisite

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factual findings, the district court has in effect extinguished several of Mr. Simons’

rights under the CVRA, and threatens to violate those few that remain under both

the CVRA and MVRA. More than twenty years ago, the Supreme Court ruled that

The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.

Press-Enterprise Company v. Superior Court of California, Riverside County, 464

U.S. 501, 510 (1984).

Mr. Simons is unable to evaluate the appropriateness of the district court’s

decision to seal the matter, because he has no access to determine if the district

court issued findings. More importantly, no record whatsoever is available to this

Court to “determine whether the closure order was properly entered.” Id. In fact,

the district court has failed to even respond to Mr. Simons, other than initial

discussions with his counsel, nor has the district court provided to counsel docket

entries or a copy of opposition papers to the motion filed for Mr. Simons asserting

his rights in district court. Mr. Simons and his counsel have waited almost three

months for a response from the district court. This Court, along with the direction

to decide Mr. Simons’ motion, should order the district court to issue its findings

for sealing the matter. The district court may not ignore the Constitutional

requirements.

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THE WRIT IS APPROPRIATE AND SHOULD ISSUE UNDER THE CIRCUMSTANCES.

A writ here is entirely appropriate under the circumstances. If this Court

fails to address Mr. Simons’ efforts to enforce his rights under the CVRA, MVRA,

and the United States Constitution, the Court would erode the rule of law by

denying Mr. Simons his rights and leave Mr. Simons drowning in the wake of the

hundreds of thousands of dollars of credit card debt caused by the Defendant, and

allow the Defendant to retain the tens of thousands of dollars that he obtained from

Mr. Simons and his sons through trickery, deceit, and fraudulent statements.

Justice begs the Court to issue a writ of mandamus which would order:

A. The district court to forthwith follow its obligations including under

18 U.S.C. 3771(b) to ensure that Mr. Simons is afforded his rights

under the CVRA, the MVRA and the Constitution of the United States

in the prosecution of Mr. Keifer, a/k/a Mr. McPherson;

B. The district court to unseal the entire record for failing to make the

appropriate findings before the sealing of the entire case pursuant to

the mandates of the Constitution of the United States of America.

C. Such other and further relief as this Honorable Court deems just and

proper.

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Respectfully submitted,

_________________________________ Russell P. Butler * Catherine Chen Maryland Crime Victims’ Resource Center, Inc. 1001 Prince George’s Boulevard Suite 750 Upper Marlboro, Maryland 20774 301.952.0063 _/S/______________________________ E. Joel Wesp * 300 East Broad Street Suite 300 Columbus, Ohio 43215-3756 614.228.5822

* Counsel of record in this Court.