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 

¶ 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 
3 

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). 
7 

¶ 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 
10 

¶ 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.