today as he was on may twenty third two thousand and five when the respondent held a sentencing proceeding the sentencing proceeding in which the record makes clear beyond any doubt that  mattered during the course of that proceeding the respondent turned to the defendant's counsel after hearing from the defendant's counsel and said quote does your client wish to be heard next he turns to the prosecutor mr kramer and he said heard he met to speak in open court when he invited the government to be heard he nat's and the common understanding of the word is to speak in open court when the victim that the petitioner in this case sought an opportunity to speak he used the very same word and said i'm not going to hear from any investors it's the same sense of the word that the court itself understood to be the meaning of to be heard is to speak you know how many that victims be reasonably heard at sentencing proceedings and the common ordinary understanding of that word indeed congress has an ambiguous intent directly on this point is that it include what they intended to be a broader scope they intended the victim to be able to be heard in a variety of means sometimes it would be speaking sometimes writing sometimes a videotape sometimes in other means of have communication that would be wrong for three reasons your honor first of all it denies them the plain meaning of the words that congress chose secondly it denies the unequivocal intention that congress applied to those or attached to those words and thirdly it would be to ignore the great breath of history that led up to the congress enact meant of this law and the evil that was this statute is intended to remedy i have a question i want to just the facts of this case in one respect and see what your answer is to oppose everything happened the same way it did in this case to this distinction they began the proceeding at nine o'clock the sentencing proceeding on the father and then they continued act ten o'clock with us on the very same day with the sentencing proceeding for the son do you say that after your client id spoken at the first sentencing hearing he still had an absolute right an hour later to speak up and say if necessary just repeat what he said at the second hearing not only do i say that your honor of  expansive and broad application not one as the respondent in this case applied one of narrow interpretation that indeed ironically is used to silence the very victims that congress intended to be empowered with with another another point your honor i think that's absolutely the case in fact the best parallel is to look at how the courts have interpreted the defendant's right of allocution at the time sentencing the courts have not said that the defendant's right of allocution of sentencing is absolute or unlimited courts have permitted timeliness restrictions on the ability of a defendant to speak and they've even imposed some content restrictions precisely of the kind that your honor has just talked about where something would be repetitive so clearly the congress granted the victims a right to reasonably be heard reasonably to speak in the same manner that the government and the defendant have the right to speak which doesn't mean in an unlimited or present for these sentencing and at that time we notified the court that these are the victims that are here just and they had a chance to speak at most she's at the sensing is the same defendants were there and again as you can picture it the courtroom was filled with the victims all behind me and i believe the district court asked if i had any additional argument i submitted and at that point the victims who were behind me all standing up asked to address the court and that's how it went down court and i believe  course you represent the president's executive branch and as such you obviously have both a duty to defend the act of is somebody in the criminal division might say this is an important question i think we should be heard on this and if they wanted to file an amicus brief they could file it on their own but of might also be that within a criminal division there might be some twat that if this when this comes up we should take this position at all times saying we we agreed that they they have th apparently that the son was was while culpable should get a lesser sentence because he had fully cooperated with the government whereas the father had not that's correct that's my recollection i have another question that i want to address to both counsel really and that is about the procedure the statute says we must decide it within three days of the end of the sentencing and that's virtually impossible the way courts of appeal process the now hundreds of thousands of papers that come through our filing system every year  we're handling about fifteen thousand filings a year now how do we mechanically get one of these things before a three judge panel in three days and get  cases i think you and i just saying is the united states simply has not taken a position on on any of this that's cracked up to the best my knowledge and if i go back maybe six months i think there's think it would behoove the united states as a party to every one of these cases to to have a position in from out we will simply have to decide things and i believe if it was remanded strictly for the limited rematch for allowing the victim to speak and it wasn't up and down that just in my preferred view of the papers he would not be an adequate wouldn't do any good for us to say ok mr can i ever here in the courtroom stand up and speak here and now you got a chance to speak i mean that would clearly not satisfy what the statute calls for is only speaking it seems to me and maybe i'm wrong about this maybe maybe you want to correct me but it seems to me that whatever the right is it has to be a right exercised at a time when sentence has not yet been imposed and whe view of the denial of the right to speak before any sentences imposed and that seems supported not only by the seventy two hour limitation but by the other provision in the statute that a single judge of the court of has taken place i don't i don't not have no idea what the answer to any of these questions but it seems to make a most unusual proceeding amin congress provided for mandamus and it obviously wanted to give the victims some rights to challenge actions by the district court but i don't know what it is what that what that right is what i have to turn around that and that i mean it is certain things are sent back for a variety of errors in the proceeding itself for example in cases where the government was denied the opportunity to speak at sentencing the case has been defendant in the criminal case was a political for the school and that's not the case in this mandamus it only through the defendant's own choosing i mean the defendant has been copied on all the pleadings the defendant had an opportunity to file pleadings papers with this court and that the defendant chose not to should not prejudice mr khanna in his petition before the court was rounded in the clear language and unambiguous intent of the c increased while he had an opportunity to come before the court and argue that it that it shouldn't be reopened that he chose not to shouldn't prejudice mr can is right under again the plain language of congress the statute and the unambiguous intention that congress attached to that language here what happened was plain error it was a violation of mr ken it's right to stand up in court in the same manner as the defendant the same matter as the defendant's lawyer in the same manner  the government's lawyer speak in open court and be heard and the irony in this case is that speaking mattered indeed because of what the defendant and the defendant's counsel said it changed the outcome of the proceeding the court went into court and clearly announced its intention to impose a sentence of one hundred sixty eight months and after hearing from the defendant and after hearing from the defendant's lawyer speaking mattered and the outcome was changed in the sentence was reduced t hundred thirty five months without giving mr khanna the dignity that congress has close him with to be able to stand up in court and address the very natters that the court found to be persuasive in making it state in court after court is twofold first of all if the person is a count victim if that person is crime is included in a count either it a a witness who testifies it was essentially because of financial since there is a is a person the right of elocution your honor just as exercised by the defendant is not a right to speak as a witness the defendant is not sworn to be treated as an individual with the individual ised harm as articulated at the point of allocution among other things and that's the precedent of the u s supreme court in pain versus tennessee that this value of  individual as i think the understanding of the position of the defendant is just as applicable to the circumstances of the victim and indeed congress has in trying this now not just a statute that allows the what you just said and that is that's not this case that's not the situation that mr kennedy has finds himself in if indeed at some point down the future the court is confronted with that particular case the court will be able to fashion the appropriate principle and this case mr ken i have a clear right to speak it was clearly denied and the denial was plain error one of these there in the record we have some of these  victim impact statements or whatever you call them how did those one of those is not a form they have and if you are if you are a victim and you want to be heard you have to file one of those first it is a form your honor and it was filed in this case the district court that the respondent how do you have to file it before you can be heard no your honor there is no requirement in the statute and congress didn't intend that there be any  such formal filing of a victim impact statement before a victim could exercise my right what rule saying that there might in the future be a court rule but at this point there's another the rule in the form of the statute and that statute takes precedence over any court rule to the contrary and the statute is very clear it commands that mr cannot be given a right to speak in the same manner that the defendant was given a right to speak and that's the unambiguous intention of congress clearly expressed by the prime sponsors of the legislation and the and the quotes are before the court ok ask a question about the remedy end and that is perfectly consistent with the precedents of this court when it comes to circumstances where defendants have been not allowed to exercise their right to speak indeed in the navarro flores case  this court says trial judges before sentencing should as a matter of good judicial administration unambiguously address themselves to the defendant and it and it went on to talk about  statement of the district court this is a on remand for the reception saying in a defendant's petition the district court has a duty to listen and give careful and serious consideration to such information that's presented the same thing is true for the victim when the victim's right to speak is not honored the case needs to be reminded anew sentencing proceeding needs to be held just as in the case of navarro flores and the court after every sentencing has a duty to listen to the reasonably heard are intended by congress to be broader than simply just speak they're intended to include other really reasonable means of communication senator kyl in his statement on the floor of the senate expressly addressed your question and said it is the intention that use of the word reasonably is to allow other other means at the option of the victim to personally address the court order personally to communicate with the court the it's the exact quotation if i may your honor senator kyl's statement is this provision is intended to allow crime victims to directly address the court phrase to be reasonably heard to provide any excuse for denying the victim a right to appear in person and directly address the court indeed the very purpose of this action is to allow the victim to appear personally and directly address the court this action would fail in its intent if court's determined that written rather than oral communication could generally satisfy this right on the other hand the term reasonably is meant to allow for alternative means of communication or of communicating a ironic interpretation that's been given to it by the respondent which takes a statute that was intended to empower victims with the independent right to speak a court into a statute that limits their right to communicate with a court  that turns congress's intention on its head and denies the very remedy to victims that congress created this this remedy has a long history that began in one nine hundred eighty two with the president's task force on victims of crime and in that report in the one thousand nine hundred two report the president's task force talked about how important it is to give victims the right to speak even as the defendant has that right to speak in open court and that follow through that well i would say rejected yes your honor i would say that the statute is a substitute for it and to have everything you know nothing it has everything that hasn't happened hasn't happened yet well as a matter of logic your honor is right but something about them i've seen them done the question is given the finality of the sentence given that judgment is final this record has no authority let's see tomorrow morning  circuit rule or the federal rules of appellate procedure the court of appeal shall take up and decide such application forthwith within four to seventy two hours after the petition has been file sentence in some sense has become final much more final than would have been right on the day when it was entered but you are not in a stance that would deny the defendant any double jeopardy right if the court were to reman we still have to have the power to do that which you ask us to do which is to open up a final sentence and i'm wondering where do we get that i saw it in your honor i think you get it from eighteen u s c thirty seven seventy one it would be it would be straining that that's my position yes that's the position you have but but i take that position also because in paragraph five of the statute this is exactly what congress contemplated congress wrote that  the sentence can be reopened if two conditions are met the victim has asserted the right to speak in this case now before or during the proceeding at issue clearly that happened here and second the victim petitions the co congress wanted to do everything it could to address the issue of finality that these time limits are are relatively short but that's to protect the victim's right it's to protect the defendant's right the interest of the government in the case and that's why the need for dispatch has been written into the statute ok thank you for the questions thank you very much and you may have the govern