Not A Victim

The United States Court of Appeals for the Fourth Circuit denied mandamus relief to an attorney who had sought crime victim status

Petitioner has filed a petition for writ of mandamus pursuant to the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, alleging that he is a crime victim and that the district court failed to afford him the opportunity to prove that status and assert his rights under the Act.

Petitioner is an attorney formerly employed by New Jersey law firm BP Fisher. The firm’s managing attorney, Matthew Browndorf, pleaded guilty to wire fraud and money laundering related to his misallocation of client funds held in trust in Maryland. Petitioner contends that, as an employee of BP Fisher, he discovered that the firm was operating in New Jersey without having opened an Interest on Lawyers’ Trust Account in that state and took steps to report Browndorf to the New Jersey Office of Attorney Ethics. Petitioner was subsequently terminated from his position with the firm, which he attributes to Browndorf’s perceiving him as a threat to Browndorf’s ongoing criminal scheme. Petitioner successfully sued Browndorf and the firm for unlawful termination under state law, receiving a judgment against Browndorf in the amount of $925,731.19 plus costs.

Petitioner contends that his termination is an injury attributable to Browndorf’s criminal activity such that he is entitled to the rights enumerated in the CVRA. In an attempt to assert those rights, Petitioner submitted a letter styled as a Victim Impact Statement to the Assistant United States Attorney (AUSA) prosecuting Browndorf, in which he requested that the district court impose the maximum sentence and include Petitioner’s judgment against Browndorf as part of its restitution order. The AUSA submitted the letter to the district court approximately one week before Browndorf’s sentencing hearing. Petitioner attended the sentencing hearing in the hope that he would be allowed to address the court as a crime victim under the CVRA. At that hearing, both the Government and Browndorf’s defense counsel stated that they did not believe Petitioner to qualify as a victim under the CVRA. The court concluded that Petitioner was not a victim in the criminal case and that his statements “would not be considered in the context of a victim impact statement.” The court noted, however, that it had received and reviewed Petitioner’s letter prior to the sentencing hearing. Petitioner then attempted to be heard on the matter, saying “If I may, Your Honor …” but the district court refused to allow him to continue.

No abuse of discretion

The CVRA defines a crime victim as “a 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(d)(3). Petitioner argues that he was wrongfully terminated when he discovered BP Fisher and Browndorf’s mishandling of client funds in New Jersey. He attributes his termination to Browndorf’s retaliation against him for reporting Browndorf to the New Jersey Office of Attorney Ethics and to Browndorf’s attempt to eliminate Petitioner as a threat to his criminal activity.

Petitioner’s alleged harm is too attenuated to give rise to crime victim’s rights. Direct harm to a victim requires the harm to be “closely related to the conduct inherent to the offense, rather than merely tangentially linked.” In re McNulty, 597 F.3d 344, 352 (6th Cir. 2010). Browndorf committed wire fraud and money laundering while misappropriating client funds held in a Maryland trust account. Petitioner states that he was unaware of Browndorf’s criminal activity, having only discovered evidence of ethical violations in New Jersey related to Browndorf’s failure to maintain a trust account in that state. Beyond their thematic similarities, Browndorf’s ethical failings in New Jersey and his criminal activities in Maryland are unrelated. And Petitioner’s description of the circumstances of his termination from BP Fisher suggest no connection to the Maryland crimes. He is not, therefore, a crime victim within the meaning of the CVRA.

Accordingly, the petition for writ of mandamus is denied.