United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING MOTION FOR ORDER UNDER 18 U.S.C.
§ 3663A AND DENYING MOTIONS/REQUESTS FOR
F. Cox United States District Court Judge
January 11, 2017, the United States and Volkswagen AG entered
into a Plea Agreement under Fed.R.Civ.P. 11(c)(1)(C) and the
United States filed the Third Superceding Information in
Criminal Case Number 16-20394, charging Volkswagen AG with
three counts: 1) “18 U.S.C. § 371 - Conspiracy to
Defraud the United States, to Commit Wire Fraud, and to
Violate the Clean Air Act” (Count 1); 2) “18
U.S.C. § 1512 - Obstruction of Justice” (Count 2);
and 3) “18 U.S.C. § 542 - Entry of Goods by False
Statement” (Count 3).
January 25, 2017, the United States Government filed an
“Unopposed Motion and Memorandum To Authorize
Alternative Victim Notification Procedures Pursuant To 18
U.S.C. § 3771(d)(2).” (D.E. No. 39). In that
motion, the Government acknowledged that it has various
obligations under the Crime Victims' Rights Act, 18
U.S.C. § 3771 (“the CVRA”). The
Government's motion explained that it would be
impractical to identify, and provide individual notice of
every public proceeding to, each potential victim directly or
proximately harmed by the charged scheme to defraud in the
criminal cases. Pursuant to 18 U.S.C. § 3771(d)(2), the
Government asked the Court to adopt a reasonable procedure
for providing notice to the potential crime victims in these
criminal cases - allowing the Government to provide notice to
the victims via three different websites maintained and
regularly updated by the Government.
Court granted the Government's motion and issued an
“Order Establishing Procedure For Crime Victim
Notification Pursuant To 18 U.S.C. § 3771(d)(2)”
on February 7, 2017.
Court later directed the Government to include information on
those websites advising victims that they may submit written
victim impact statements to the Court, via the assigned
probation officer, which had to be received by April 12,
2017. (See D.E. No. 76). This Court confirmed that
the Government promptly updated its websites to contain that
information. Those websites also provided victim impacts
forms that could be used.
miscellaneous cases were filed in this Court by alleged
victims of the criminal offenses charged in the criminal case
against Volkswagen AG (ie., individuals who claimed to have
purchased affected Volkswagen vehicles).
Case Number 17-mc-50280 was opened after Oleg Yarin filed a
pro se “Motion For Establishment Of Crime
Victim Status And Assertion Of All Crime Victim's
Rights.” Mr. Yarin identifies himself as the owner of a
Volkswagen vehicle who opted out of the civil settlements in
the multi-district litigation in California (In re
Volkswagen “Clean Diesel” Mktg., Sales Practices,
and Prod. Liab. Litig., No. 3:15-md-02672-CRB (N.D.
Cal.)). Mr. Yarin also indicates that he filed his own
lawsuit against Volkswagen AG, that has since been
transferred and made part of the multi-district litigation in
California. In his various filings, Mr. Yarin: 1) asserts
that the Court should not accept the Rule 11 Agreement
pertaining to Volkswagen AG; and 2) asks the Court to award
Mr. Yarin (and others) restitution against Volkswagen AG in
connection with the criminal case.
response, the Government acknowledges that Mr. Yarin is a
crime victim for purposes of the CVRA. The Government,
however, asks the Court to reject Mr. Yarin's request for
restitution and find that the requirements of 18 U.S.C.
§ 3663A(c)(3) are satisfied because individual
restitution determinations in these criminal cases would
unduly protract the litigation.
March 6, 2017, Miscellaneous Case Number 17-mc-50336 was
opened. In that miscellaneous case, counsel representing a
number of alleged victims filed an “Objection To Plea
Agreement Pursuant To Crime Victims' Rights Act”
(D.E. No. 2 in Case No. 17-mc-50336) wherein counsel
requested that this Court either reject the Rule 11 Agreement
pertaining to Volkswagen AG “or, in the alternative, to
defer a decision on whether or not to accept the proposed
plea agreement until the Court has received and reviewed a
presentence report, including any victim impact statements to
be submitted and any submissions from their counsel detailing
the reasons why the Objecting Victims” believe the plea
agreement should be rejected. (Id. at 3).
same date, March 6, 2017, the Government and Volkswagen AG
filed, in the criminal action, a “Joint Motion In
Support Of Order Under 18 U.S.C. § 3663A(c)(3) Finding
That Individual Criminal Restitution Is Not
Appropriate.” (D.E. No. 63 in Criminal Case No.
16-20394). In that submission, the Government and Volkswagen
AG asked the Court to find that the CVRA's requirements
are satisfied because individual restitution determination in
these criminal cases would unduly protract the litigation.
That is, they asked the Court to find that restitution is not
appropriate in this matter, and overrule the objections filed
in the miscellaneous cases. That motion states that the
Department of Justice “is acutely aware of the need to
recompense victims for the Volkswagen fraud and has taken
enormous efforts to that end, ” and explains that two
civil settlements in the civil multi-district litigation case
against Volkswagen AG in California “provide an
efficient and comprehensive mechanism for achieving consumer
restitution.” (Id. at 2-3). The motion
explains that mechanism. Later, the Government filed the same
or similar filing in both of the miscellaneous cases.
(See D.E. No. 6 in Case No. 17-mc-50280; D.E. No. 4
in Case No. 17-mc-50336).
addition, counsel for the alleged victims in Case No.
17-mc-50336 filed a motion asking the Court to provide
restitution to victims in the criminal cases. (See
D.E. No. 6 in Case No. 17-mc-50336).
the motions concerning restitution have been fully briefed
and the Court concludes that oral argument is not necessary.
See Local Rule 7.1(f)(2), U.S. District Court,
Eastern District of Michigan.
March 10, 2017, this Court held a plea hearing in the
criminal case against Volkswagen AG. At that time, Volkswagen
AG entered a guilty plea to Counts 1, 2, and 3 of the Third
Superceding Information. This Court accepted that guilty plea
on behalf of the corporation. After having done so, this
Court noted that under Rule 11(c) of the Federal Rules of
Criminal Procedure, this Court may accept the Rule 11
Agreement, may reject it, or may defer its decision on
whether to accept or reject it until after having reviewed a
Court then allowed both the Government and Defense Counsel to
be heard as to their respective positions as to how the Court
should proceed. Both the Government and Defense Counsel urged
the Court to accept the Rule 11 ...