THE LEGISLATIVE HISTORY OF THE CVRA
The statement of Sen. Jon Kyl & that of Sen. Dianne Feinstein in Senate Debate at S4268-69 make it clear that Rainey’s violations are prohibited by the Statute, i.e., CRIME VICTIMS’ RIGHTS ACT (CVRA).
Rainey’s handling of the USA v. CITGO, ET AL case unequivocally violated the 1st, 5th, 6th, and 7th Amendments to the United States Constitution and the statute, i.e., CVRA, in particular.
Thus, the entire proceedings are VOID ab initio. It must be vacated. The criminal victims should sue him for civil liabilities, and render him constitutionally disqualified to preside over the case since day one, a new trial or a new sentencing!
In the CVRA’s predecessor proposal to add a victims’ rights amendment to the Constitution, Congress sought to address the tension between victims’ interest in ensuring the vitality of their rights by making it difficult to override or restrict them, and countervailing interests based on the need for flexibility in the administration of criminal justice and the historic constitutional rights of the accused. The last version to be favorably reported to the Senate provided that victims’ rights “shall not be denied . . . and may be restricted only as provided in this article.” S.J. Res. 1, § 1 (108th Cong.) (emphasis added). See U.S. v. TURNER, 367 F. Supp.2d 319, 0 (E.D.N.Y. 2005).
With respect to CVRA, Rainey unequivocally violated the 800+ crime victims’ pertinent statutory rights:
(1) The right to be reasonably protected from the accused:
“A 2009 blast nearly sent a cloud of hydrogen fluoride, a deadly gas, into the neighborhoods.
Residents’ complaints to the Texas Commission on Environmental Quality — more than 200 of them during the 10-year period — led the agency to inspect Citgo repeatedly, but the company covered its tracks. During the conviction phase of the federal trial, the Justice Department showed that Citgo employees removed the oil from the uncovered tanks each time the refinery was due for an inspection, so that by the time an investigator arrived, the company was operating legally. It wasn’t until a TCEQ investigator arrived unannounced that the agency realized Citgo was operating the tanks illegally.” For more detailed CITGO intentional violations, see Oil Giant Citgo Gets Off Easy in Criminal Case – Truthout.
(2) The right to reasonable, accurate, and timely notice of any public court proceeding:
On December 9, 2013, the prosecutors, the victims’ counsel, and approximately one hundred crime victims appeared at the courthouse for the sentencing hearing that had been announced previously. Rainey purposefully absented from the courthouse. Perhaps he was hiding in his chambers or in the restroom. (In CIVIL ACTION NO. V-10-56 Chen v. Rainey, at the purported Initial Pretrial and Scheduling Conference scheduled on September 22, 2010 at 1:15 p.m., which was abruptly moved to the crooked judge Janis Graham Jack’s lunchtime break, he was absent from the 2-minute hearing while sitting on the bench across the hall.) So were CITGO’s counsel, who apparently knew in advance there was to be no sentencing that day and did not show up.) The sentencing was postponed. — This is another abuse and misuse of judicial power.
“Where are you, Judge Rainey?” asked the victims.
Victims asked the bailiff to look for you in your chambers in vain! You were clever and cunning enough to hide behind the desk, John Delay Rainey!
Which room were you hiding when the courtroom was packed with prosecutors, CITGO’S victims, and their attorneys awaiting your sentencing on December 9, 2013? Why did you chicken out, Mr. Rainey? And again, where did you hide yourself on April 30, 2014 when the victims’ restitution was announced in writing instead of in open court? Guilt and Shame for your gross misconduct?
Judge John Delay Rainey is guilty of deprivation of the crime victims’ statutory and constitutional rights!
(3) The right not to be excluded from any such public court proceeding: The 4/30/2014 restitution order should have been announced in an open court instead of electronic filing of a written order by intentionally excluding the victims from such a public court proceeding.
(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding: Restitution order is a part of sentencing. Depriving the victims of the right to be reasonably heard at any public proceeding on 4/30/2014 when the MEMORANDUM OPINION AND ORDER was rendered. See 06-563 – USA v. CITGO Petroleum Corporation et al. Every person is entitled to an opportunity to be heard in a court of law upon every question involving his rights or interests, before he is affected by any judicial decision on the question. Earle v McVeigh, 91 US 503,23 LEd 398.
(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:
“[t]he right to full and timely restitution as provided in law.” 18 U.S.C. § 3771(a)(5)-(6). Awarding the 800+ crime victims $0 restitution violated their right to full and timely restitution as provided in law. Having been designated crime victims through open-court hearings, these victims were entitled to at least some compensation for the harms inflicted on them from 1994 through 2003, not to mention other uncharged crimes committed by CITGO 2003. $0 restitution was unthinkable, unacceptable legally and ethically! Thelma Morgan had pneumonia, her husband developed colon cancer and died in 2003, Connie Gonzalez developed breast cancer, and her husband had prostate cancer and heart problems. In fact, all the 800+ crime victims have been exposed to the chemicals coming from the CITGO refinery. They all deserve medical screening: Screening is the systematic application of a test or inquiry, to identify individuals at sufficient risk of a specific disorder to benefit from further investigation or direct preventive action, among persons who have not sought medical attention on account of symptoms of that disorder. See Guidance on terminology – Journal of Medical Screening. Screening, in medicine, is a strategy used in a population to identify an unrecognized disease in individuals without signs or symptoms. This can include individuals with pre-symptomatic or unrecognized symptomatic disease. See Screening (medicine) – Wikipedia, the free encyclopedia.
(7) The right to proceedings free from unreasonable delay:
“The right to proceedings free from unreasonable delay.” 18 U.S.C. § 3771(a)(7). This provision appears to confer participatory rights on the victim. The affirmative right to be heard applies to a variety of specified proceedings. See 18 U.S.C. § 3771(a)(4). The provision is a surviving evidence of the earlier proposal to amend the Constitution by providing, in relevant part, that victims have “the right to adjudicative decisions that duly consider the victim’s . . . interest in avoiding unreasonable delay.” S.J. Res. 1, § 2 (108th Cong.); see S. Rep. 108-191 at 27. The Senate sponsors of the CVRA were explicit in their view that the statutory right to proceedings free from unreasonable delay neither “curtail[s] the Government’s need for reasonable time to organize and prosecute its case” nor “infringe[s] on the defendant’s due process right to prepare a defense.” See Senate Debate at S4268-69 (statement of Sen. Kyl). On the other hand delays for other reasons, particularly “for the mere convenience of the parties,” must take into account the victim’s countervailing interest in a speedy trial. Id. at S4269 (statement of Sen. Kyl).
Under the statute’s phrasing — which could be interpreted, by contrast to the proposed constitutional amendment, to grant victims a more robust right to object to delay — a victim could conceivably object to scheduling decisions on the ground that the resulting delay would be unreasonable.
The Waiver Of Speedy Trial Time: “On April 29, 2005, I entered, at the parties’ joint request, an order of excludable delay pursuant to 18 U.S.C. § 3161(h)(8). Although I recognize that I did so without the benefit of any victim input, I concluded that the brief period of delay the parties proposed — 35 days — would not unduly delay the proceedings and was otherwise warranted in the interest of justice.” See U.S. v. TURNER, 367 F. Supp.2d 319, 0 (E.D.N.Y. 2005). Judge Orenstein’s 35 days’ delay is reasonable. In contrast, Rainey’s seven years’ delay is callous, capricious, arbitrary, unreasonable, egregious, and unconscionable. The most puzzling is the three years and nine months of inactivity (between December 22, 2007 and March 27, 2011) evidenced from the Docket Report 06-563 – USA v. CITGO Petroleum Corporation et al.
I am not guilty! All the delays complied with Judge Rainey’s instructions! He is hiding behind the desk in his chambers now!
(8) The right to be treated with fairness and with respect for the victim’s dignity:
“The right to be treated with fairness and with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(8). The Senate sponsors of the law were clear in their articulating their intent: to promote a liberal reading of the statute in favor of interpretations that promote victims’ interest in fairness, respect, and dignity. “It is not the intent of this bill that its significance be whittled down or marginalized by the courts or the executive branch. This legislation is meant to correct, not continue, the legacy of the poor treatment of crime victims in the criminal process.” See Senate Debate at S4269 (statement of Sen. Feinstein).
- To conform to the sponsors’ expectation that the statute will be applied liberally to the extent consistent with other law, Rainey failed to promote victims’ interest in fairness, respect, and dignity by violating the CVRA in USA v. CITGO’s case by depriving the 800+ crime victims of their legitimate rights to fair and just restitution.
- “The only way to give effect to [the victim’s] right to speak as guaranteed to him by the CVRA is to vacate the sentence and hold a new sentencing hearing.” See In re: Kenna, 435 F.3d 1011, 1017 (9th Cir. 2006). The CVRA was designed to show that the criminal justice system “can and should care about both the rights of accused and the rights of victims.” 150 Cong. Rec. S4262 (Apr. 22, 2004) (statement of Sen. Feinstein). Just as CITGO has a right to hear its sentence announced, so do the 800+ crime victims have a right to hear their restitution announced in open court.
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TO BE CONTINUED.
Paul Chen
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MANDAMUS: VOID Orders/Judgments 