United States v. Clinesmith

• Court: District Court, District of Columbia
• Decided: January 19, 2021
• Docket: Criminal No. 2020-0165
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, v. Criminal Action No. 20-165 (JEB) KEVIN CLINESMITH,

Defendant.

ORDER

Defendant Kevin Clinesmith, having pled guilty to one count of False Statements, in

violation of 18 U.S.C. § 1001(a)(3), faces sentencing on January 29, 2021. That false statement

occurred in connection with the preparation of an application for the renewal of a surveillance

warrant from the U.S. Foreign Intelligence Surveillance Court. The target of this fourth

application was Carter Page. Supported by amici victim-rights organizations, Page now moves

for a determination under the Crime Victims’ Rights Act that he is a victim of Clinesmith’s act

and is thus entitled to be heard at sentencing. The Court does not decide whether the CVRA

applies to Page, but it will grant him the opportunity to speak at sentencing. It also will decline

to award restitution.

Under 18 U.S.C. § 3661, courts at sentencing are not limited in their receipt and

consideration of “information concerning the background, character, and conduct of a person

convicted of an offense.” As the Government points out, this statute alone allows the Court to

hear from Page as to the effect of Clinesmith’s conduct on him. See ECF No. 37 (Gov’t Resp.)

at 6 (citing, inter alia, United States v. Smith, 967 F.3d 198, 215–16 (2d Cir. 2020) (no error

where district court permitted individual to speak at sentencing even where she did not qualify as

“victim” of defendant’s offense)). The Court agrees and will grant him up to ten minutes at the

1 sentencing hearing. His comments shall be limited to any injury that he believes the fourth FISA

application caused him. In other words, because Clinesmith’s false statement had no effect on

the FISC’s approval of the first three surveillance warrants, Page may only discuss harm from

the last one.

This ruling means that the Court need not formally analyze whether Page qualifies as a

victim under the CVRA, a complicated question that draws much ink from the pens of all parties

here. To recap briefly, that statute defines a “crime victim” as a “person directly and

proximately harmed as a result of the commission of a Federal offense.” 18 U.S.C.

§ 3771(e)(2)(A). Such definition, everyone here agrees, incorporates both the “traditional ‘but

for’ and proximate cause analyses.” In re Rendon Galvis, 564 F.3d 170, 175 (2d Cir. 2009). The

Government and Clinesmith contend that Page has not made that showing. For example, they

believe that he has not established that the FISC would not have approved the relevant FISA

application without the false fact Clinesmith added. See Gov’t Resp. at 6–10; ECF No. 38 (Def.

Opp.) at 13–17. This is no simple inquiry and involves reviewing all of the material in the fourth

application, much of which remains classified. Amici, conversely, take a novel and expansive

view of victimhood, contending that Page was harmed merely by the FISC’s review of a warrant

application that was based in part on false information. See ECF No. 28-1 (Amicus Brief) at 11–

14. Neither the Government nor Clinesmith, not surprisingly, subscribes to such a broad view.

In any event, given its decision to permit Page to speak under § 3661, the Court does not believe

that a lengthy exegesis of these matters is necessary or warranted. It thus declines to formally

determine whether he qualifies as a victim under the CVRA.

Such a formal finding that Page is a victim would also render him eligible for restitution

under another section of the CVRA, 18 U.S.C. § 3663. Such an award is permissive, id.

2 § 3663(a)(1)(A), and the Court should also consider the extent of the harm suffered, the financial

resources of the defendant and his ability to pay, and other factors it deems appropriate. Id.

§ 3663(a)(1)(B)(i). Although Page states that he would like a judicial finding on his entitlement

to restitution as a victim, he concedes that he is not asking the Court for an actual award:

“[G]iven the numerous difficulties in establishing the appropriate quantum of restitution, Dr.

Page does not seek a determination of the amount of his loss and a commensurate award of

restitution in this case.” ECF No. 35 (Page Supp.) at 4 (emphasis removed). His position is

understandable here, particularly given that “he has recently filed a civil action in this Court

against the United States, the Department of Justice, the Federal Bureau of Investigation, and

eight named individuals, including Defendant Clinesmith, seeking $75 million in damages for

their violations of his rights.” Id. at 1–2 (footnote omitted). He thus expects to obtain monetary

relief there as well as in the other civil actions he has filed. See Def. Opp. at 27 (listing other

suits).

Page also acknowledges that “the Court has the authority to decline to enter a restitution

order if it determines that the complication and prolongation of the sentencing process resulting

from the fashioning of an order of restitution outweighs the need to provide restitution. See 18

U.S.C. § 3663(a)(1)(B)(ii).” Page Supp. at 2. He believes that this is the case here inasmuch as

fully calculating his loss that is attributable to Clinesmith alone and not other Government actors

will take considerable time. Id. at 2–4. The Court agrees that declining to issue an award is the

proper course here for several reasons. First, as discussed above, there is no certainty that Page

even qualifies as a victim under the CVRA. Second, even if he does, calculating what

Clinesmith’s actions have cost him is an exceedingly difficult task on which Page is not now

prepared to embark. Third, Page appears to prefer other routes of recovery via his civil actions,

3 though the Court offers no opinion on their likelihood of success. Finally, Clinesmith has

pointed out that his resources are limited, as he is now unemployed and has a baby on the way.

See Def. Opp. at 28 n.17. The Court, accordingly, will not mandate the payment of any

restitution.

For the reasons set forth above, the Court ORDERS that:

1. Page’s [26] Motion for Relief is GRANTED IN PART and DENIED IN PART;

2. Page may speak for up to ten minutes at Clinesmith’s sentencing; and

3. No restitution will be awarded.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: January 19, 2021