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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