People v. Vasseur

COLORADO COURT OF APPEALS 2016COA107

Court of Appeals No. 14CA2300
Adams County District Court No. 12CR1694
Honorable Patrick T. Murphy, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tracy Lea Vasseur,

Defendant-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE FREYRE
Taubman and Dailey, JJ., concur

Announced July 14, 2016

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Leslee A. Barnicle, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 Defendant, Tracy Lea Vasseur, appeals from an order of

restitution entered by the district court following a hearing. She

contends that the district court violated her Sixth Amendment right

of confrontation and the Colorado Rules of Evidence when it

considered a written compilation in determining the amount of

restitution. Because we conclude that neither the right of

confrontation nor the rules of evidence apply in restitution

proceedings, we affirm.

I. Background

¶2 Vasseur and her mother (codefendant) assisted individuals

located primarily in Nigeria (associates) with an Internet scam to

take money from victims who were looking for love and

companionship. Over the course of more than three years,

Vasseur’s associates targeted victims on dating and social

networking websites, represented that they were members of the

United States Armed Forces, and convinced the victims to wire

money to an “agent” in Colorado through Western Union,

MoneyGram, or various bank accounts.

¶3 Vasseur and her mother acted as the Colorado “agent” for

numerous wire transfers. They kept a portion of the money sent by

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 the victims before wiring the remaining amount to their associates.

Vasseur and her mother stole money from 374 victims.

¶4 In 2012, a grand jury indicted Vasseur for operating an

enterprise through a pattern of racketeering activity in violation of

the Colorado Organized Crime Control Act (COCCA), conspiracy to

commit racketeering in violation of COCCA, nine counts of theft of

$20,000 or more, theft of $5000 or more from an at-risk victim,

money laundering, identity theft, four counts of forgery, criminal

impersonation, and contributing to the delinquency of a minor.

Under a plea agreement, Vasseur pleaded guilty to a pattern of

racketeering activity in violation of COCCA in exchange for the

dismissal of the remaining counts, a sentencing cap of eighteen

years in prison, and the payment of restitution.

¶5 The court sentenced Vasseur to fifteen years in the custody of

the Department of Corrections and reserved the issue of restitution

for ninety days. Thereafter, the prosecution filed a request for

restitution in the amount of $1,063,242. Vasseur objected and

requested a hearing.

¶6 During the restitution hearing, the court admitted Exhibit A

over Vasseur’s objection. Exhibit A is a spreadsheet that lists the

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 wire transfers received by Vasseur and her mother. It shows the

sender’s name, the sender’s age or date of birth, the sender’s

address, the date of the wire transfer, and the amount of the wire

transfer.

¶7 The prosecution admitted Exhibit A through an agent with the

Colorado Bureau of Investigation who testified that

 he was the primary investigator in Vasseur’s case;

 there were 374 victims “from all over the United States

and five other countries,” including twenty-nine at-risk

victims;

 the total amount of money lost by those victims was

about $1,063,000;

 Vasseur and her mother kept “roughly ten percent” of the

money they collected;

 Exhibit A was prepared by an analyst who worked for

him;

 Exhibit A included the victims whose wire transfers had

been received by Vasseur and her mother through

Western Union, MoneyGram, and various bank accounts;

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  Vasseur and her mother received wire transfers at

approximately sixty-six different Western Union and

MoneyGram locations;

 the investigating agents interviewed a large number of

the victims and no evidence suggested that the money

had been sent for a legitimate purpose;

 none of the money had been returned to the victims;

 Vasseur admitted in an interview that she knew there

was no charity involved and that she took the money,

kept a portion for herself, and sent the rest to Nigeria;

and

 Vasseur never claimed to have received the money for a

legitimate purpose.

¶8 At the conclusion of the restitution hearing, the court gave the

parties an opportunity to submit further argument or authority.

Vasseur filed a memorandum in support of her objection to the

amount of restitution.

¶9 In response, the prosecution conceded that two of the senders

listed in Exhibit A were inadequately identified, seven had

incomplete or nonexistent contact information, and one was
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 arguably not a victim. It withdrew its restitution request for those

ten people, reducing the amount of restitution requested by

$52,774.45.

¶ 10 The district court imposed $1,010,467.55 in restitution, jointly

and severally with Vasseur’s mother. It found that the prosecution

had proven, by a preponderance of the evidence, that the victims on

the amended list had been defrauded by Vasseur’s scam.

II. Restitution

¶ 11 Vasseur contends that the district court erred when it

considered Exhibit A in imposing restitution. She argues that the

court violated (1) her Sixth Amendment right of confrontation

because she did not have an opportunity to cross-examine the

witnesses who provided the information used to compile Exhibit A;

and (2) the Colorado Rules of Evidence because Exhibit A contained

inadmissible hearsay, lacked a proper foundation, and had not

been properly authenticated. We disagree.

A. Standard of Review

¶ 12 We review a district court’s restitution order for an abuse of

discretion. See People v. Welliver, 2012 COA 44, ¶ 8. A court

abuses its discretion if it “misconstrues or misapplies the law” or if

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 its ruling is manifestly arbitrary, unreasonable or unfair. People v.

Harris, 43 P.3d 221, 225 (Colo. 2002); People v. Reyes, 166 P.3d

301, 302 (Colo. App. 2007). Claims of evidentiary error involving

Confrontation Clause violations are reviewed de novo. Bernal v.

People, 44 P.3d 184, 198 (Colo. 2002). Absent an abuse of

discretion, the court’s ruling will not be disturbed on appeal.

People v. Witt, 15 P.3d 1109, 1110 (Colo. App. 2000). The parties

dispute whether Vasseur preserved her Confrontation Clause claim.

However, we need not resolve this dispute because we conclude no

error occurred.

B. Restitution is Part of a Defendant’s Sentence

¶ 13 Offenders are required to pay “full restitution” to victims

harmed by their misconduct. § 18-1.3-601(1)(b), C.R.S. 2015. This

includes recovery of the “‘actual, pecuniary damages sustained by

the victim as the direct result of the defendant’s conduct.” People v.

Courtney, 868 P.2d 1126, 1127 (Colo. App. 1993) (citation omitted).

The restitution award should fulfill the statutory purpose of “simply

making the victim whole to the extent practicable.” Id. at 1128;

accord People v. Stafford, 93 P.3d 572, 575 (Colo. App. 2004).

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¶ 14 The restitution statute recognizes that “victims endure undue

suffering and hardship resulting from . . . emotional and

psychological injury” and that “[p]ersons found guilty of causing

such suffering and hardship should be under a moral and legal

obligation to make full restitution to those harmed by their

misconduct.” § 18-1.3-601(1)(a)-(b).

¶ 15 The prosecution bears the burden of proving, by a

preponderance of the evidence, both the restitution owed and that

the victim’s losses were proximately caused by the defendant.

People v. Hensen, 2013 COA 36, ¶ 11. When the prosecution

presents its evidence at a hearing, a defendant must have the

opportunity to contest the amount of the victim’s loss and its causal

link to the crime. People v. Rivera, 250 P.3d 1272, 1275 (Colo. App.

2010). However, the court need not “conduct a mini-trial on the

issue of damages.” People v. Johnson, 780 P.2d 504, 507 (Colo.

1989).

¶ 16 Restitution is part of the district court’s sentencing function in

criminal cases. See Roberts v. People, 130 P.3d 1005, 1007 (Colo.

2006); People v. Dunlap, 222 P.3d 364, 368 (Colo. App. 2009).

Indeed, a sentence is illegal if the court fails to consider restitution,

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 a statutory requirement for every felony judgment of conviction.

See Dunlap, 222 P.3d at 368; see also § 18-1.3-603(1), C.R.S. 2015.

Moreover, a restitution order is appealable in accordance with “the

statutory procedures applicable to the appellate review of a felony

sentence.” Johnson, 780 P.2d at 508.

¶ 17 We reject Vasseur’s argument that restitution is not part of a

sentence because the time to file a direct appeal (which runs from

the date a sentence is imposed) is not delayed for the court’s

determination of a final amount. After the legislature amended the

restitution statute in 2000, the court was no longer required to set

the amount of restitution at the time it imposed a sentence. See

Sanoff v. People, 187 P.3d 576, 578 (Colo. 2008). The amendment

allowed the court to order a restitution obligation and to postpone

the determination of the amount of that obligation. See id. For that

reason, the judgment became final once the court determined that a

defendant was obligated to pay restitution. See id. Even after the

amendment, restitution remains a part of a defendant’s sentence.

See § 18-1.3-603(1).

C. The Right of Confrontation

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¶ 18 “The right to confrontation is considered ‘a trial right.’” People

v. Ray, 252 P.3d 1042, 1048 n.7 (Colo. 2011) (quoting Pennsylvania

v. Ritchie, 480 U.S. 39, 52 (1987) (plurality opinion)). Thus, the

right of confrontation does not apply to sentencing proceedings.

See People v. Lassek, 122 P.3d 1029, 1031-32 (Colo. App. 2005).

¶ 19 It follows then that the right of confrontation does not apply to

restitution hearings because restitution is part of the sentencing

proceeding. United States v. Battles, 745 F.3d 436, 462 (10th Cir.

2014) (concluding that, because the right of confrontation is a trial

right, a defendant does not have an absolute right to confront

witnesses at a restitution hearing); Franco v. State, 918 A.2d 1158,

1161 (Del. 2007) (concluding that the right of confrontation does

not apply in restitution hearings); Box v. State, 993 So. 2d 135,

138-39 (Fla. Dist. Ct. App. 2008) (relying, in part, on Lassek in

reaching its conclusion that the right of confrontation does not

apply to restitution hearings); see also Oken v. Warden, 233 F.3d

86, 91 (1st Cir. 2000) (extending lack of confrontation right to state

postconviction proceedings).

D. The Rules of Evidence

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¶ 20 Similarly, the Colorado Rules of Evidence do not apply to

sentencing proceedings. See CRE 1101(d)(3). In fact, hearsay is

admissible in a sentencing proceeding. See People v. Bruebaker,

189 Colo. 219, 222, 539 P.2d 1277, 1279 (1975); People v. Pourat,

100 P.3d 503, 505 (Colo. App. 2004). We note that the restitution

statute contemplates the court’s consideration of victim impact

statements, which are necessarily hearsay. See § 18-1.3-603(2).

¶ 21 As with the right of confrontation, the rules of evidence do not

apply in a restitution proceeding because restitution is part of the

sentencing process. Accord People v. Matzke, 842 N.W.2d 557,

559-60 (Mich. Ct. App. 2013) (concluding that the rules of evidence

do not apply to restitution proceedings because they are not

applicable to sentencing proceedings and restitution is a part of

sentencing); State v. Morse, 106 A.3d 902, 906-07 (Vt. 2014) (same).

E. Application

¶ 22 Because neither the right of confrontation nor the rules of

evidence apply to a restitution proceeding, we conclude that

Vasseur’s arguments fail. Therefore, we conclude that the district

court did not abuse its discretion when it relied on Exhibit A in

determining the amount of restitution. See Welliver, ¶ 8.

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 III. Conclusion

¶ 23 The order is affirmed.

JUDGE TAUBMAN and JUDGE DAILEY concur.

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