CUMMINGS, Chief Judge.
This is an appeal by Robert Serhant from the fifteen-year prison sentence (composed of three consecutive five-year terms) and consecutive five-year probation term with restitution condition, imposed on June 28, 1983, after Serhant pleaded guilty to four counts of mail fraud in violation of 18 U.S.C. § 1341.
The events culminating in the mail fraud charges to which Serhant pleaded guilty arose out of Serhant's activities as founder and president of Financial Partners Ltd., an investment company which Serhant fraudulently represented would invest in United States Treasury Bills but which in fact invested in much riskier futures market investments. Serhant's fraudulent representations resulted in losses totalling millions of dollars to several hundred investors.
Serhant's guilty plea was entered pursuant to a plea agreement with the United States Attorney. The plea agreement contained the following provisions relevant to this Court's inquiry: (1) the government agreed not to oppose Serhant's release on his own recognizance pending sentencing; (2) Serhant acknowledged that his maximum potential sentence for the four counts was twenty years in prison, a $4,000 fine,
Serhant does not challenge either the plea agreement or the legality of his guilty plea itself. He seeks only to have his sentence vacated and the case remanded to another district court judge for resentencing. He raises four major claims of error in support of vacation: (1) the use of victim impact statements in connection with his sentencing violated due process; (2) he was denied his right of allocution; (3) the restitution order is vague and uncertain and therefore improper; and (4) his sentence is disproportionate to his crime and therefore violates the Eighth Amendment's prohibition against cruel and unusual punishment.
Before reaching these claims, it is necessary as a threshold matter to determine the scope of review on this appeal. Each of the parties urges that a different standard is the appropriate one. The government argues that our scope of review is quite narrow, relying on case law which states that a sentence within statutory limitations may be challenged on review only if the lower court relied on improper or unreliable information in exercising its sentencing discretion or failed to exercise its discretion at all. E.g., United States v. Ely, 719 F.2d 902, 906 (7th Cir.1983), certiorari denied, ___ U.S. ___, 104 S.Ct. 1313, 79 L.Ed.2d 710; United States v. Main, 598 F.2d 1086, 1094 (7th Cir.1979), certiorari denied, 444 U.S. 943, 100 S.Ct. 301, 62 L.Ed.2d 311. Serhant, on the other hand, insists that this case really challenges the manner or procedure by which the district court determined the sentence, and is subject to much broader appellate review. Dorsynski v. United States, 418 U.S. 424, 443, 94 S.Ct. 3042, 3052, 41 L.Ed.2d 855; United States v. Harris, 558 F.2d 366, 372 (7th Cir.1977).
We find it unnecessary to resolve the apparent conflict between these two standards, because in this case, at least, there is no actual conflict. To the extent Serhant's claims are procedural, they allege errors which are encompassed within the improper or unreliable information or the abuse of discretion categories of the Ely standard. For instance, Serhant claims that the victim impact information available at sentencing should not have been used because it was improper or unreliable or both; and Serhant's claims that the district judge denied Serhant the right of allocution or issued an improper restitution order or disproportionate sentence imply that the judge abused his discretion. See Ely, 719 F.2d at 906.
It is apparent, then, that in this case, at least, the two "conflicting" standards really do not conflict but instead govern two separate aspects of our inquiry. Our review of a sentence within statutory limitations is narrow in the sense that we may review the sentence only with regard to two factors: whether it is (1) set in reliance on proper information and (2) within the proper bounds of judicial discretion. However, to decide whether these two factors are present, we may subject the sentencing process to "careful scrutiny." Dorsynski, 418 U.S. at 443, 94 S.Ct. at 3052
I. Victim Impact Statements
In determining the appropriate sentence for Serhant, the district court had access to a variety of information, including factors in both aggravation and mitigation. A presentence report, which was compiled by a federal probation officer, included: a narrative description of the details of Serhant's offense and its discovery; a victim impact statement and recommendation for the maximum twenty-year sentence prepared by the government counsel; a one-paragraph victim impact statement prepared by the probation officer and summarizing conversations with investors who lost money
A hearing in aggravation was conducted on June 2, 1983, at which seven victims appeared as witnesses and were subjected to cross-examination by Serhant's attorney.
Serhant challenges his sentence in part on the basis that the victim impact statements available to the court were highly inflammatory, unverified and unreliable, so that the district court's reliance on them in setting Serhant's sentence violated due process. Serhant also claims that the use made of victim impact materials in connection with his sentencing violated Section 3 of the Victim and Witness Protection Act of 1982, Pub.L. 97-291, 96 Stat. 1248, 1249. Section 3 amended Fed.R.Crim.P. 32(c)(2) by mandating that the presentence report in federal criminal cases contain "information concerning any harm, including financial, social, psychological, and physical harm, done to or loss suffered by any victim of the offense; and * * * any other information that may aid the court in sentencing, including the restitution needs of any victim of the offense." 96 Stat. at 1249; Fed.R.Crim.P. 32(c)(2)(C), (D).
Serhant suggests that the government exceeded its authority under Rule 32(c) and in so doing caused inflammatory and prejudicial victim statements to be submitted to Judge Hart, the sentencing judge. Because Judge Hart relied on those statements in determining the sentence, Serhant asserts, it was imposed in violation of due process. Serhant claims the government exceeded its authority by (1) soliciting and then submitting to Judge Hart inflammatory and prejudicial victim statements, and (2) presenting live testimony from victims at the June 2 hearing in aggravation.
Even prior to the amendment of Rule 32(c)(2), federal courts have had broad authority to review a wide range of information
Amended Rule 32(c), then, merely makes mandatory the exercise of judicial authority, previously exercised as a matter of discretion, to obtain victim impact information. By the same token, the fact that the new Rule does not mandate judicial review of a particular kind of victim impact information (e.g., written or live statements of victims) does not prevent the district court from reviewing the material as a matter of discretion, so long as due process considerations are satisfied by, e.g., providing the defendant with an opportunity to rebut allegedly inaccurate presentence information. United States v. Marshall, 719 F.2d 887, 891 (7th Cir.1983); Harris, 558 F.2d at 374.
In light of these principles, we reject Serhant's claim that his sentence must be vacated because about twenty victims submitted letters included in the presentence report and seven testified as witnesses at the June 2 hearing. Most of these written and testimonial statements explained, in a dignified and non-inflammatory manner, the source of the victims' investment funds and the practical effect of the loss of those funds on the victims and their families. This kind of information is precisely within Rule 32(c)(2)(C)'s mandate as well as being available to the district court under its broad sentencing authority. See, e.g., Roberts, supra, 445 U.S. at 556, 100 S.Ct. at 1362. To the extent the statements included negative comments about Serhant's character, they were properly reviewed by the district court pursuant to 18 U.S.C. § 3577, as were the several counterbalancing letters and the statements of civil plaintiffs' counsel which commended Serhant.
Serhant contends that his due process rights were violated because the quantity of the statements and their inflammatory nature as a practical matter precluded rebuttal, thereby making it improper for the sentencing court to consider the material. However, this contention is belied by the facts. The seven live statements and twenty-two letters were not so numerous as to make rebuttal impractical; in fact, Serhant cross-examined each witness and rebutted perceived inaccuracies in the letters (6/2/83 Tr. 4). And, as already noted, the tone of the statements was not inflammatory or improperly emotional. The fact that relatively few investors cumulatively lost millions of dollars in Serhant's scheme makes it inevitable that the loss had an emotionally significant aspect. However, this aspect was not exploited or unduly emphasized in the victims' statements and reference to it was appropriate to provide the district court with "information concerning any harm * * * or loss suffered by any victim of the offense." Rule 32(c)(2)(C) (emphasis added).
Next, Serhant complains that the government improperly included in the presentence report the text of a suicide note written by one of Serhant's investors. In the note, the investor apologized for innocently involving others in the scheme. The government's comment implied that the victim committed suicide out of remorse for this involvement. At the time of the sentencing, Serhant objected that suicide statements might have "prejudicial" and "devastating" effect on the Parole Commission in its future evaluations of Serhant's eligibility for parole (6/28/83 Tr. 15, 16). Serhant also pointed out factors, unrelated to the financial scheme, which had contributed to the victim's despondency at the time of his suicide and could have contributed to his suicide.
We assume arguendo that the government's comment and the suicide note were improperly prejudicial. However, Serhant's sentence may not be vacated unless the district court relied on this improper information in imposing the sentence. See, e.g., United States v. Harris, 558 F.2d at 374. In this case it is clear that the district court did not rely on the challenged information. In explaining the reason for his sentence, the judge never referred to the suicide information specifically, and his general reference to the loss suffered by Serhant's victims demonstrates that the judge was considering the effects of the fraud only on victims who continued to suffer difficulties as a result of Serhant's scheme.
Furthermore, Serhant adequately rebutted this information with his description of other events which led to the suicide's demise (see supra, note 10). This opportunity to rebut satisfied the requirements of due process where, as here, the accuracy or reliability of the presentence information was contested at the sentencing proceeding. See, e.g., United States v. Welch, 738 F.2d 863, 865 n. 3 (7th Cir.1984); United States v. Marshall, 719 F.2d at 891; United States v. Harris, 558 F.2d at 374.
II. Right of Allocution
Under Fed.R.Crim.P. 32(a)(1), a criminal defendant must have the opportunity "to make a statement in his own behalf and to present any information in mitigation of punishment" before sentence is imposed. This right of allocution is viewed as so important that reversal of a sentence has been ordered where the defendant did not have a prior opportunity to speak. Haywood v. United States, 393 F.2d 780, 782 (5th Cir.1968). Where the sentencing judge has complied with Rule 32(a)(1) only in form, vacation of the sentence and remand for resentencing may be ordered. United States v. Sparrow, 673 F.2d 862 (5th Cir.1982).
Serhant claims that the district court determined the sentence prior to his speaking and presenting mitigation evidence on June 28, so that the right of allocution was honored only formally. In making this claim, Serhant relies on his perception that the district judge read the sentence from a prepared statement. In response to Serhant's motion, the district judge has submitted his sentencing notes in camera to this Court. A careful review of these notes demonstrates that Serhant's sentence was not determined prior to Serhant's June 28 statements. Rather, the notes indicate that the district judge gave preliminary consideration to the interests affecting sentence (e.g., restitution, rehabilitation, special and general deterrence), but did not make the sentencing determination itself until after Serhant had exercised his right of allocution at the June 28 hearing. Therefore Serhant's claim that he was substantially denied his right of allocution under Rule 32(a)(1) must be rejected.
III. Proportionality of Sentence
Serhant contends that his sentence of five years' imprisonment for each of three counts of mail fraud, to be served consecutively, constitutes "cruel and unusual punishment" under the Eighth Amendment. In making this contention, Serhant asserts that his sentence violates the proportionality principles explicated in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637.
In Solem, the Supreme Court declared unconstitutional a sentence of life imprisonment without possibility of parole imposed by a South Dakota trial court on a defendant who pleaded guilty to passing a bad $100 check after having previously committed six nonviolent felonies. The Court held "as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted." 103 S.Ct. at 3009. However, the Court required that appellate courts give "substantial deference" to both the legislature's authority in establishing sentence ranges and the trial court's discretion in imposing the actual sentence, id., and noted that "a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." Id. at n. 16.
After viewing Serhant's sentence in light of the principles of Solem, we conclude that it is not constitutionally disproportionate.
Finally, while Serhant's sentence was significantly greater than the average sentence of 34.2 months imposed for mail fraud in the Northern District of Illinois in 1982 (see Def.Br. 38), this statistic does not establish that Serhant's sentence is constitutionally disproportionate. Serhant's multi-million dollar scheme was hardly an "average" mail fraud, so that a significantly greater than average sentence was not improper. His Eighth Amendment claim is rejected.
In lieu of a prison sentence for count 4, the district judge instead sentenced Serhant to a five-year period of probation with a specific restitution condition as follows:
Serhant contends that the probation condition is so vague and uncertain that it violates the restitution provision of 18 U.S.C. § 3651,
Section 3651 provides that a defendant may be required to make restitution only for actual damages or loss that his offense caused. The restitution provision here, however, contains no guarantee that Serhant will not be required to make restitution of a sum greater than the actual loss his criminal conduct caused. Civil plaintiffs may establish loss by only a preponderance of the evidence and not beyond a reasonable doubt as required in a criminal action. And there is no basis for believing that individual civil plaintiffs will be limited in the recovery they seek to an amount which does not exceed the actual collective loss established in the criminal proceeding. See supra, note 1. Furthermore, it is not clear that punitive damages will not be sought in the civil actions. Thus the restitution provision here is impermissibly vague because it contains "no maximum limitation corresponding to the actual loss caused by the offenses" for which Serhant was convicted. United States v. Shelby, 573 F.2d 971, 976 (7th Cir.1978).
The tax restitution cases on which the government relies and which uphold sentencing provisions requiring payment of whatever back taxes are determined to be owed for specific tax years, are inapposite. See United States v. McDonough, 603 F.2d 19 (7th Cir.1979); United States v. Weber, 437 F.2d 1218 (7th Cir.1971), certiorari denied, 402 U.S. 1008, 91 S.Ct. 2189, 29 L.Ed.2d 430; United States v. Caiello, 420 F.2d 471 (2d Cir.1969), certiorari denied, 397 U.S. 1039, 90 S.Ct. 1358, 25 L.Ed.2d 650; United States v. Stoehr, 196 F.2d 276 (3d Cir.1952), certiorari denied, 344 U.S. 826, 73 S.Ct. 28, 97 L.Ed. 643. Because the government is the only "victim" that may
With the exception of the restitution condition, the district court's sentence of Robert Serhant is affirmed. The cause is remanded for revisions of the restitution condition consistent with this proceeding. Circuit Rule 18 shall apply.
Finally, we note that the defense did not move to clear the courtroom on June 2, but moved only to exclude the government's seven victim witnesses. This strongly suggests that the defense simply did not perceive that the presence of Serhant's victims in the courtroom was intimidating, or that their presence was more prejudicial to Serhant than the victim testimony, which we conclude was proper, to which Serhant made a general objection.
6/28/83 Tr. 37. The district court also noted that he was influenced in setting sentence by the fact that Serhant was an attorney whose misrepresentations amounted to an abuse of the trust his family, friends, and associates had put in him. Id. at 38.
Next, while the district court relied on other considerations in addition to retribution in setting the sentence (see 6/28/83 Tr. 36-38), the Supreme Court has recently reiterated that retribution is an appropriate sentencing consideration. Jones v. United States, 463 U.S. 354, ___, 103 S.Ct. 3043, 3052, 77 L.Ed.2d 694.