1

The Crime Victims’ Rights Act of 2004 and the Federal Courts

Federal Judicial Center, October 24, 2005* 

I. Overview of the Act, 1

II. Benchbook Sections Affected by the CVRA, 2

III. Other Issues That May Arise Under the CVRA, 7

IV. Case Summaries, 10

V. Text of 18 U.S.C. § 3771, 15

I. Overview of the Act

As part of the Justice For All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260 (effective Oct. 30, 2004), victims of crime were given significantly expanded rights 

in the Scott Campbell, Stephanie Roper, Wendy Preston, Louarna Gillis, and Nila 

Lynn Crime Victims’ Rights Act (CVRA). The CVRA set forth these rights in newly 

enacted 18 U.S.C. § 3771, which also placed on the federal courts a duty to ensure that victims are afforded those rights. Section 3771 effectively replaces 42 

U.S.C. § 10606 (“Victims’ Rights”), now repealed by the CVRA, which included a 

list of victims’ rights but did not provide any means of enforcement.

The CVRA gives victims the right to be present at public court proceedings 

involving the crime, section 3771(a)(2) and (3), and the right to be “reasonably 

heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding,” section 3771(a)(4). Up to now, victims have 

had a right to be heard only in limited circumstances. For example, Fed. R. Crim. 

P. 32(i)(4)(B) allows “any victim of a crime of violence or sexual abuse who is present at sentencing . . . to speak or submit any information about the sentence.” 

(Note: Effective Dec. 1, 2005, amended Fed. R. Crim. P. 32(i)(4)(C) will allow “any 

victim of a felony offense . . . to speak or submit any information about the sentence.”)

As did the prior statute, the CVRA directs Department of Justice personnel 

(and personnel of other agencies, as appropriate) to “make their best efforts to 

see that crime victims are notified of, and accorded, the rights described in subsection (a).” Section 3771(c)(1). However, under section 3771(d)(1), crime victims 

are now authorized to assert those rights independently. In addition, the federal 

district courts themselves are now directed, “[i]n any court proceeding involving 

an offense against a crime victim, [to] ensure that the crime victim is afforded the 

rights described in subsection (a).” 18 U.S.C. § 3771(b).

The CVRA also adds a process for congressional review of the new legislation’s 

effectiveness: “[T]he Administrative Office of the United States Courts, for each 

Federal court, shall report to Congress the number of times that a right estab-

* This document will be updated periodically as warranted by additional case law or legislative 

changes. Readers should check the Center’s website on the courts’ intranet at cwn.fjc.dcn to be 

sure they have the most current version.

This publication was undertaken in furtherance of the Center’s statutory mission to conduct and 

stimulate research and development for the improvement of judicial administration. The views 

expressed are those of the author and not necessarily of the Federal Judicial Center.
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The Crime Victims’ Rights Act of 2004 and the Federal Courts • Federal Judicial Center, Oct. 24, 2005

lished in [section 3771] is asserted in a criminal case and the relief requested is 

denied and . . . the reason for such denial.” And within four years of the CVRA’s 

effective date, the Comptroller General shall submit a report on “the effect and 

efficacy of the implementation of the amendments made by this title on the 

treatment of crime victims in the Federal system.” See Pub. L. No. 108-405, Title I, 

§ 104(a) and (b).

The expanded victims’ rights under the CVRA may affect several stages of 

federal criminal proceedings, from arraignment to sentencing. The Center’s 

Benchbook for U.S. District Court Judges will be amended to reflect section 3771

and the resulting changes in court procedure. In the meantime, Part II below 

provides a preliminary guide to how various sections of the Benchbook may be 

affected by the CVRA. Part III notes several other issues that courts may have 

to deal with under the CVRA, and Part IV contains summaries of the handful of 

cases that have so far addressed any aspects of the CVRA. The complete text of 18 

U.S.C. § 3771 is provided in Part V.

II. Benchbook Sections Affected by the CVRA

Listed below are sections of the Benchbook for U.S. District Court Judges that are 

likely to be affected by the various provisions of section 3771. Judges who use the 

Benchbook may wish to note in their copies that the CVRA might apply in these 

proceedings.

1.01 Initial Appearance

Section 3771(a)(2) to (4) may apply here. The victim has the right to be notified 

of and present at the defendant’s initial appearance, and, if bail is to be set or denied at the initial appearance, the victim has the right to be “reasonably heard.” 

The district court may want to ask the prosecutor specifically if there are any victims in the offense and if they have been properly informed of these rights. See 

U.S. v. Turner in Part IV infra for a summary of a district court’s actions to correct 

inadequate notice to victims about a defendant’s arraignment and bail hearing.

A few other points should be considered here. Because the CVRA does not distinguish between proceedings that occur before a plea or guilty verdict and proceedings that follow a plea or verdict, it seems that in all proceedings courts must 

treat alleged victims as if they were admitted or proven victims. Also, now that 

video teleconferencing is available under Fed. R. Crim. P. 5(f) for the defendant’s 

initial appearance, it raises the issue of where a victim who wishes to “be present” 

would go. Note, too, that because the time between arrest and initial appearance 

may be very brief, questions concerning what constitutes “reasonable . . . and 

timely notice” under section 3771(a)(2) may arise. 

1.02 Assignment of Counsel or Pro Se Representation

If assignment of counsel is done in a public proceeding, as part of the defendant’s initial appearance or separately, victims have the right to be notified and 

present.
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1.03 Release or Detention Pending Trial

As noted for section 1.01, victims have a right to be reasonably heard when the 

court determines whether the defendant will be released before trial. Section 

3771(a)(1) provides that crime victims have the right “to be reasonably protected 

from the accused.”

Note that the statute does not in any way indicate what weight a court should 

give to a victim’s statements. This may have to be decided on a case-by-case basis, 

and may also depend on the proceeding involved or the other legal requirements 

courts must consider, such as 18 U.S.C. § 3142 (for release) or the Sentencing 

Guidelines (for sentencing).

The statute also does not specify whether the right to be “reasonably heard” 

requires the court to allow an oral statement or can be limited to a written submission. One district court determined that, in a pretrial detention hearing, section 3771(a)(4) would be satisfied by a written statement under the particular 

circumstances of the case. See U.S. v. Marcello in Part IV infra.

1.04 Offense Committed in Another District

If the defendant is arrested and makes his or her initial appearance in a district 

that is different from the one in which the offense was committed, a victim has 

the right to be notified and present. If the defendant agrees to have the prosecution transferred to the different district and pleads guilty or nolo contendere under Fed. R. Crim. P. 20, a victim also has the right to be reasonably heard at that 

proceeding.

1.05 Commitment to Another District (Removal Proceedings)

If the defendant is arrested in a district that is different from the one in which the 

offense occurred, as above, and declines to have the prosecution transferred, the 

court must hold a removal hearing in order to send the defendant to the district 

in which the offense occurred. A victim has the right to be notified of and present 

at the removal hearing. Also, if the defendant is to be released on bail rather than 

held and transferred, a victim has the right to be reasonably heard.

Section 1.05 also covers commitment to another district after the arrest of a 

probationer or supervised releasee, which raises a question not answered by the 

text of section 3771. Are the victims of the original offense of conviction “victims” 

under the CVRA with respect to the violation proceedings? If the conduct underlying the violation of release was the commission of a new federal crime, are the 

victims of that crime entitled to the rights under the CVRA for the proceedings 

related to the violation? Or does the CVRA only apply to proceedings that result if 

new federal charges are brought for that underlying conduct?

1.06 Waiver of Indictment

A victim has the right to be notified of and present at a waiver of indictment hearing. If the release of the defendant becomes an issue, as when the defendant re-
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fuses to waive indictment and bail must be continued or modified, a victim has 

a right to be heard.

1.07 Arraignment and Plea

A victim has the right to be notified of and present at the defendant’s arraignment, and has the right to be heard regarding the plea and the continuation or 

resetting of bail.

Note that, as with the initial appearance in section 1.01 supra, the defendant 

may agree to video teleconferencing for arraignment. Fed. R. Crim. P. 10(c). A 

victim’s right to be present and reasonably heard must be accommodated if the 

court is in public session during the video teleconference.

1.08 Joint Representation of Codefendants

A victim has the right to be notified of and present at a hearing regarding joint 

representation of codefendants.

1.09 Waiver of Jury Trial

Victims have the right to be notified of and present at a hearing regarding waiver 

of a jury trial.

1.10 Speedy Trial Act

A victim has the right to be notified of and present at any public hearing regarding Speedy Trial Act issues. If a violation of the Speedy Trial Act could lead to 

dismissal of the charges against the defendant and to his or her possible release, 

it appears that a victim would have the right to be reasonably heard in any public 

proceeding on that issue.

Section 3771(a)(7) states that victims have a right to “proceedings free from 

unreasonable delay.” While that right may normally be compatible with a defendant’s right to a speedy trial, there are several exceptions in the Speedy Trial 

Act, see 18 U.S.C. § 3161(h), that could authorize a delay that seems unreasonable to a victim. The question may arise whether a delay that is authorized under section 3161(h) is presumptively reasonable or possibly a violation of section 3771(a)(7).

A victim has the right to be notified of and present at any public hearing on 

a motion to delay the trial, but does not have the right to be reasonably heard 

unless the defendant is to be released upon a finding that his or her speedy trial 

rights were violated. If the defendant is not to be released, a victim can object to 

a delay only by filing a motion for relief under section 3771(d)(3). If a delay will 

be granted, the court may wish to explain to the victim, or ask the government to 

explain, why such a delay is necessary and not unreasonable.

1.11 Delinquency Proceedings

The definition of “victim” in section 3771(e) is not limited to victims of adult offenders, so it appears that the CVRA applies to juvenile offenses and delinquency 
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proceedings. However, because those proceedings are generally not public, the 

rights to be notified of and present at any public proceeding, and to be heard at 

certain public proceedings, would not be applicable.

1.12 Mental Competency in Criminal Matters

A victim has the right to be notified of and present at a public hearing to determine the defendant’s mental competency. If civil commitment of the defendant 

is at issue, it could be argued that the CVRA gives the victim a right to be heard.

2.01 Taking Pleas of Guilty or Nolo Contendere

Any victims have the right to be “reasonably heard” at the plea hearing. 

One significant question not addressed in the CVRA, for a plea hearing or any 

other proceeding, is when the victim must be heard. For the right to be meaningful, it can be argued that the victim should be heard before the court makes 

a decision, such as whether to accept a plea bargain or to release the defendant 

pending sentencing.

Note, however, that a victim’s rights with respect to a plea agreement do not 

extend beyond being heard and, under section 3771(a)(5), “confer[ring] with 

the attorney for the Government.” As the Second Circuit found in In re W.R. Huff 

Asset Management Co., LLC, summarized in Part IV infra, “[n]othing in the CVRA 

requires the Government to seek approval from crime victims before negotiating 

or entering into a settlement agreement.” And section 3771(d)(6) specifies that 

“[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.”

2.02 Taking Pleas of Guilty or Nolo Contendere (Organization)

As with a plea hearing for an individual defendant, a victim has the right to be 

reasonably heard at a plea hearing when the defendant is an organization. With 

organizations, there may be more of a chance that “the number of crime victims 

makes it impracticable to accord all of the crime victims the rights described in 

subsection (a).” In that case, “the court shall fashion a reasonable procedure to 

give effect to this chapter that does not unduly complicate or prolong the proceedings.” Section 3771(d)(2).

2.03 Trial Outline (Criminal Case)

Note that 18 U.S.C. § 3510 already prohibits excluding victims from the trial 

merely because they may speak at the sentencing hearing. Section 3771(a)(3) 

now prohibits exclusion of victims from any covered proceeding “unless the 

court, after receiving clear and convincing evidence, determines that testimony 

by the victim would be materially altered if the victim heard other testimony at 

that proceeding.” Even then, “the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives 

to the exclusion of the victim from the criminal proceeding.” Section 3771(b). 

See also Fed. R. Evid. 615 (“This rule does not authorize exclusion of . . . a person 

authorized by statute to be present.”).
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If the defendant is found guilty, section 3771(a)(4) appears to give a victim the 

right to be heard regarding the decision whether the defendant will be released 

pending sentencing.

2.06 Standard Voir Dire Questions—Criminal

Victims have the right to notice of and to be present during jury selection, unless 

the courtroom is closed for all or part of voir dire.

2.09 Verdict—Criminal

Victims have the right to be notified that the jury has reached a verdict and that 

the court will be reconvening to hear it.

2.10 Trial and Post-trial Motions

If a motion for judgment of acquittal, Fed. R. Crim. P. 29, a motion for new trial, 

Fed. R. Crim. P. 33, or a motion for arrest of judgment, Fed. R. Crim. P. 34, will 

involve a hearing, victims should be notified.

2.11 Release or Detention Pending Sentence or Appeal

If there is an issue whether the defendant may be released pending sentencing 

or appeal, victims must be notified of the hearing and provided an opportunity 

to be heard. As noted earlier, section 3771(a)(1) provides that crime victims have 

the right “to be reasonably protected from the accused.” Under Fed. R. Crim. P. 

46, the defendant has the burden of establishing that he or she does not “pose a 

danger to any other person or to the community.”

3.01 Death Penalty Procedures

The definition of “crime victim” in section 3771(e) states that, if the crime victim 

is deceased, “the representatives of the victim’s estate, family members, or any 

other persons appointed as suitable by the court, may assume the crime victim’s 

rights under this chapter.”

Note that a defendant convicted of a capital offense will usually be sentenced 

by a jury. It seems that a victim’s “right to be reasonably heard at . . . sentencing” 

would have to be before this jury to be meaningful.

4.01 Sentencing Procedure

A victim has the right to notice of the sentencing hearing and to be reasonably 

heard sometime during the hearing. As noted earlier for the plea hearing, courts 

will have to determine when during the hearing to allow a victim to be heard. 

Fed. R. Crim. P. 32(i)(4)(B) gives victims of a crime of violence or sexual abuse the 

right to make a statement and present information at sentencing. Court practice 

under Rule 32(i)(4)(B) may provide a model to follow. Note that, effective Dec. 1, 

2005, Fed. R. Crim. P. 32(i)(4)(C) extends the right to make a statement or present 

information at sentencing to “any victim of a felony offense.”
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4.02 Revocation of Probation or Supervised Release

As noted above for section 1.05, courts may have to determine whether there is 

a “crime victim” under the CVRA when there is a violation of probation or supervised release. Might the revocation hearing be deemed a “public court proceeding . . . involving the crime or of any release . . . of the accused,” for which victims 

of the original crime would have the right to notice? If probation or supervised 

release is considered to be directly connected to the original offense of conviction, the requirements of the CVRA may be applicable to revocation proceedings. 

Also, if the violation of probation or release involves not just a violation of the 

conditions of release but a new crime, even if not separately charged, would the 

CVRA apply to the victims of that crime?

III. Other Issues That May Arise Under the CVRA

A. Large numbers of victims

Although section 3771(d)(2) provides courts with the flexibility to “fashion a reasonable procedure” when trying to accommodate the rights of large numbers of 

victims, it does not offer any specific ways to do so. How, for example, would the 

“right to be reasonably heard” be satisfied? Could the court select a group of representative victims to be heard in court, perhaps allowing the rest to submit written statements? If the number of victims who want to be present at a proceeding 

exceeds the capacity of the courtroom, how shall the court determine who is 

allowed to attend? And, while the prosecution is responsible for notifying and 

consulting with the victims, the court may be called upon to determine whether 

those efforts were adequate under the CVRA.

B. Alternative means of being “heard”

May a court accommodate a victim’s right to be reasonably heard by means other 

than in person? For example, a child victim is allowed under 18 U.S.C. § 3509(b) 

to testify on closed-circuit television or videotape if the court finds that the child 

could not testify in person because of fear, or that there is a substantial likelihood 

that the child would suffer emotional trauma. The CVRA does not specifically 

allow or prohibit such an alternative means of being “heard.” A similar accommodation might be considered in cases in which victims live far from the courthouse, as may happen in a large, multi-state fraud case. 

C.Weight to give victim’s statement

When a victim has the right to be heard at a proceeding, what weight, if any, must 

the court give to the victim’s statement or other submission? Must the court 

somehow account on the record for the impact, if any, such submissions have on 

its decisions involving release, plea, sentencing, or parole?

D.Waiver of rights by victim

If a victim waives any of the rights granted by the CVRA—intentionally or simply 

by a failure to respond to notice—would it be prudent to make a record of the 
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waiver? Can a victim rescind an initial waiver and seek to enforce his or her rights 

later in the proceedings?

E. Act applies to all federal offenses

The CVRA is not limited to felony offenses. A victim is defined, in part, in section 3771(e) as a person harmed “as a result of the commission of a federal offense,” so it seems that the CVRA could apply to a misdemeanor offense or infraction.

F. Possible confrontation clause issues

Does the defendant have any right to cross-examine a victim who makes an oral 

statement? To dispute written statements? To challenge any other evidence proffered by a victim? To give a rebuttal? The substance of a victim’s statements or 

other submissions may raise Confrontation Clause issues.

G. Absent defendant

Note that the CVRA does not require that the defendant be present for a victim to 

have the right to notice or to be heard. The victim would, for example, still have a 

right to be notified of an arraignment if the defendant waived his or her appearance under Fed. R. Crim. P. 10(b). And if the defendant escaped after conviction 

and was to be sentenced in absentia, it appears that the victim would retain the 

right to be heard at sentencing and to receive notice of any public court proceeding related to the escape itself.

H.Victims and relevant conduct

What about victims of related but uncharged, dismissed, or acquitted criminal 

conduct? If a defendant is, for example, charged with three counts involving separate but related offenses, each with different victims, and as part of a plea agreement one or two counts are dismissed, are the victims of the dismissed counts 

also “dismissed” from proceedings thereafter? 

Or, because under the U.S. Sentencing Guidelines relevant or related conduct that is considered at sentencing may involve victims who are not victims 

of the count or counts of conviction, could there be circumstances where such 

victims can be considered “directly and proximately harmed as a result of the 

commission of” the offense of conviction so as to qualify as victims under section 3771(e)? Similarly, can there be a CVRA “victim” in an ostensibly victimless 

crime of conviction, such as an illegal weapon possession offense that involved 

an uncharged assault that may be considered at sentencing?

I. Motion for relief—procedures and remedies

When a victim makes a “motion for relief” under section 3771(d)(3), the district 

court is to “decide any motion asserting a victim’s rights forthwith.” The statute does not further specify a time limit or a procedure for deciding the motion. 

Should the court hold a hearing? Should it allow submission of briefs or oth-
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erwise give the prosecution and defendant an opportunity to respond? If the 

claimed violation relates solely to an action of the government, is the defendant 

entitled to notice and an opportunity to be heard on the motion?

What remedies are available for a violation? If a victim claims, for example, that 

the government is not reasonably conferring under section 3771(a)(5), could the 

court order the government to hold more frequent meetings with the victim, or 

perhaps provide written answers to questions the victim may have? What if the 

violation relates to the right to notice of and to be present at a proceeding that 

has already occurred?

J. Motion to reopen a plea or sentence—procedures

Section 3771(d)(5) states that under limited circumstances a victim “may make a 

motion to re-open a plea or sentence” when the right to be heard was denied. If 

the plea or sentence is reopened, then what? Could the defendant withdraw his 

or her plea? Could the defendant or government seek to renegotiate a plea agreement? Would sentencing have to begin anew? Or could the court simply give the 

victim an opportunity to be heard and re-accept the plea and/or reinstate the 

sentence? If the victim is given the opportunity to be heard, should the defendant and government be allowed to respond? What happens if the court decides, 

after the victim’s statement, to disallow the plea or change the sentence?

K. Restitution

How will section 3771(a)(6)’s “right to full and timely restitution as provided in 

law” interact with the current restitution statutes, such as sections 3663, 3663A, 

and 3664? Since under section 3771(d)(1) each crime victim “may assert the rights 

described in subsection (a),” could a victim file a motion claiming that restitution 

is not “full” or “timely” under the applicable restitution statute? Could a victim 

claim that the court did not adequately follow section 3572(b), which directs it to 

impose a fine “only to the extent that such fine . . . will not impair the ability of 

the defendant to make restitution”? Does a victim’s right to restitution remain in 

force until the amount of restitution ordered is fully paid? (Note that section 3771

only imposes a time limit on motions “to re-open a plea or sentence.”)

If payment of restitution is a condition of probation or supervised release, 

could a victim’s complaint that restitution is not being paid be used to begin revocation proceedings? And would the victim then have the right to be present 

and possibly be heard at any revocation hearings?

L. Challenging a victim’s status

Because a victim’s rights under the CVRA seem to begin long before an actual 

guilty plea or conviction after trial, the status of “victim” may be based on allegations rather than proof. Does the defendant have the right to challenge whether 

a person should be considered a victim under section 3771(e)? If so, when and 

how? Would the victim and the government then be required to supply some 

modicum of proof that the person in question actually is a victim of the defendant’s offense?
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M. Oath or affirmation by victim

Should a victim be treated like a witness and required to take an oath or make an 

affirmation before being allowed “to be reasonably heard”? Should some form of 

affidavit be required for written submissions?

N. Potential claims against government

Note that, although 42 U.S.C. § 10606 was repealed, section 10607 remains in effect. It outlines the specific “services to victims” that government personnel must 

supply, some of which are related to the rights set out in section 3771. Although 

section 10607(d) specifically states that it “does not create a cause of action” for 

failure to provide these services, a failure to satisfy section 10607 could be relevant to some claims under the CVRA, such as the government did not adequately 

consult with the victim, section 3771(a)(5), or the victim was not “treated with 

fairness and with respect for the victim’s dignity and privacy,” section 3771(a)(8).

O. Organizational “victims”

Do companies or other organizations have rights under the CVRA? The definition 

of “victim” in section 3771(e) refers only to “a person,” and the alternates who 

may assume the rights of an incapacitated victim are also individuals. However, 

organizations are not specifically excluded. A related statute, 42 U.S.C. § 10607(e), 

includes “an institutional entity” in its definition of a victim.

IV. Case Summaries

A. In re W.R. Huff Asset Management Co., LLC, 409 F.3d 555, 558–64 (2d Cir.

2005)

In what appears to be the first appellate decision involving an action brought 

under the CVRA, a group of victims petitioned for a writ of mandamus, seeking to vacate a settlement agreement in a forfeiture action. The underlying case 

involved a large and complex securities fraud, and the government entered into 

a proposed settlement agreement that involved setting up a $715 million victim compensation fund. To receive a distribution from the fund, victims would 

have to forgo most separate civil actions. Two sets of victims objected to the proposed settlement, claiming mainly that the compensation fund would be inadequate and their right to “full and timely restitution” under section 3771(a)(6) 

would be violated. Victims also argued that the government did not adequately 

consult with the victims before entering the settlement, section 3771(a)(5), and 

that the victims were not “treated with fairness,” section 3771(a)(8). The district 

court accepted the settlement agreement and ruled against the victims, finding 

that, in light of the complexity of the case and the many thousands of potential 

victims, the settlement was the sort of reasonable compromise envisioned by 

section 3771(d)(2) to avoid “unduly complicat[ing] or prolong[ing] the proceedings.”

The appellate court, after first holding that “a district court’s determination 

under the CVRA should be reviewed for abuse of discretion,” denied the petition 
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for mandamus. The right to full and timely restitution is qualified by the phrase 

“as provided in law.” The court found that the relevant law was the Mandatory 

Victim Restitution Act, 18 U.S.C. § 3663A, which specifically allows for less than 

full restitution in a case with so many victims as to “make restitution impracticable” and complex issues that could “complicate or prolong the sentencing 

process.” The court also noted that the settlement agreement involved some defendants who were not convicted, as well as other individuals who had not been 

charged. “[T]he CVRA does not grant any rights against individuals who have not 

been convicted of a crime. Concomitantly, neither the Government nor the sentencing court are restricted by the CVRA from effecting reasonable settlement or 

restitution measures against non-convicted defendants.”

As to the other claims, the appellate court held that “no petitioner has alleged 

that it asked the Government to confer with it and was denied the opportunity 

to do so. Nothing in the CVRA requires the Government to seek approval from 

crime victims before negotiating or entering into a settlement agreement. The 

CVRA requires only that the court provide victims with an opportunity to be 

heard concerning a proposed settlement agreement, and the court provided the 

victims with a full opportunity to do so in this case.” The court also held that “the 

district court in no way treated the victims unfairly or without ‘respect for [their] 

dignity and privacy,’ 18 U.S.C. § 3771(a)(8), but rather took into consideration 

the numerosity of victims, the uncertainty of recovery, and the prospect of unduly prolonging the sentencing proceedings when adopting the settlement, factors 

which Congress has required the court to consider. See 18 U.S.C. § 3771(d)(2).”

B. U.S. v. Ingrassia, — F. Supp. 2d — (E.D.N.Y. Oct. 15, 2005) (Spatt, J.)

This case provides some examples of notice issues under the CVRA when multiple victims are involved. After the government had identified more than two 

hundred victims of the large securities fraud scheme at issue, it initially sought 

to provide notice solely through publication. The court rejected that request, and 

required the government to submit a proposed notice for the court’s review and 

to then provide the approved notice to each identified victim by mail with return 

receipt requested. The court later removed the requirement for a return receipt 

and approved a request by the government to supplement the mailing by including notice of the case in a national publication.

The notice mailed to the victims informed them about the case and their 

rights under the CVRA. It also stated that there was a pending trial date and that 

they could obtain current information about the case through the government’s 

Victim Notification System (VNS); they were also given an identification number 

and a phone number to gain access to the VNS. The notice added that, because 

of the large number of victims, further information would most likely be provided only through the Internet or the VNS call center. A week later, the government sent a second mailing that informed victims that three of the defendants 

were going to plead guilty and provided the scheduled dates and times for the 

pleas, but it did not place this information on its website. At the same time, the 

government placed an advertisement in USA Today to notify unidentified poten-
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tial victims about the case. The ad listed a government website that contained 

information concerning victims’ rights, how to register as a victim, and how to 

obtain access to the VNS. The website also contained a link to provide updated 

information about the case. However, the information provided at that link was 

not current.

At issue in the instant decision was a report to the court by a magistrate judge 

relating to plea proceedings of the remaining defendants and whether the government’s notification of victims met the requirements of the CVRA. The report 

concluded that notification through the VNS did not satisfy the CVRA, and “recommended that [the court] accept each guilty plea only after the government 

has provided notice by first-class mail or other reasonably equivalent method to 

all identified victims of the following: each defendant’s plea, release status, sentencing date, and notice of the victims’ right to be heard with regard to the plea 

and sentence.” The government agreed to do this, and “as an additional curative 

measure it . . . agreed not to object on the ground of timeliness to a victim’s assertion of any rights the victim could have asserted under the CVRA at the plea 

proceeding.” The court accepted the magistrate judge’s report, but upheld the 

government’s objection to the magistrate judge’s order that the government provide a copy of its objections to the report to each victim by first-class mail (or reasonable equivalent) within ten days. The court concluded that such notification 

was “unnecessary and not required under the CVRA or the Federal Magistrates 

Act. The Report, the government’s objections, and this Memorandum of Decision 

and Order are all available to the public on the Public Access to Court Electronic 

Records (PACER) service.”

C. U.S. v. Marcello, 370 F. Supp. 2d 745, 746–50 (N.D. Ill. 2005)

At a pretrial detention hearing for two defendants accused of murder, the government moved to allow the son of the murder victim to give an oral statement 

in court, under section 3771(a)(4), opposing release of the defendants. The district court allowed only a written statement, concluding that “heard” is a term 

of art that includes written statements and that under the facts of this case—the 

murder occurred over twenty years ago, the son had no personal knowledge of 

the crime, and the judge had already determined that the defendants would not 

be released pending trial—a written statement would allow the victim to be “reasonably heard.” The court acknowledged that “reasonable minds may differ” on 

this issue.

D. U.S. v.Turner, 367 F. Supp. 2d 319, 321–28 (E.D.N.Y. 2005)

After discovering at the defendant’s bail hearing that the victims in the case had 

not received adequate notice of either the initial hearing or the bail hearing, the 

court concluded the bail hearing, ordered that the defendant be detained, and 

ordered the government to provide all alleged victims of the offense with a written summary of the proceedings to that point and notification of their rights 

under the CVRA with respect to future proceedings. After complying with the 

court’s order, the government reported that none of the victims wished to attend 
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The Crime Victims’ Rights Act of 2004 and the Federal Courts • Federal Judicial Center, Oct. 24, 2005

or be heard at a later hearing regarding the defendant’s application for release. 

The court then “direct[ed] the government to provide the court with sufficient 

information about the victims in this case to fulfill its independent obligation to 

ensure that those victims are afforded their rights,” including name and contact 

information, while allowing for the exclusion of such information under certain 

circumstances. The parties later filed a joint request to exclude a period of delay 

for purposes of computing Speedy Trial Act time limits. After noting that a public hearing on this matter would require further notice to the victims, but that 

a written submission would not, the court allowed the parties to submit a joint 

written waiver form and then approved the waiver in a written order. 

Note: This opinion contains an extended discussion of many of the CVRA’s 

provisions, the legislative history, potential problems that courts may face, and 

actions courts may take in attempting to balance the various interests involved.

E. U.S. v. Johnson, 362 F. Supp. 2d 1043, 1055–56 (N.D. Iowa 2005)

In a murder case involving five victims, the district court approved the government’s request to allow seventeen “victim witnesses,” who were family members 

of the deceased, to be present during the guilt phase of the trial. The court found 

that the defendant had made no attempt to show under section 3771(a)(3) that 

any of the witnesses’ testimony would be “materially altered” by hearing the other testimony, and there was no other evidence to that effect, so the victim witnesses could not be excluded from the trial.

F. U.S. v.Visinaiz, 344 F. Supp. 2d 1310, 1314 (D. Utah 2004)

In a case that focused on the issue of lost income awards in homicide cases under the Mandatory Victims Restitution Act and the possible effect of Blakely v.

Washington, 124 S. Ct. 2531 (2004), on the MVRA, the court also noted that the 

passage of the CVRA reinforced its decision to award lost income. The court cited 

legislative history that endorsed an “expansive definition of restitution” and the 

intention that the “right to full and timely restitution as provided in law” under 

the CVRA “means that existing restitution laws will be more effective.”

G. U.S. v. Kaufman,No. CRIM.A. 04-40141-01 (D. Kan. Oct. 17, 2005) 

(Belot, J.) (unpublished memorandum and order)

In a case involving, among other things, Medicare fraud, civil rights violations, 

and abuse of mentally ill patients, a local television station filed a motion to allow a sketch artist to be present in the courtroom during trial. Apart from the 

First Amendment issues presented, the court had to account for the rights of 

each victim who would be testifying at the trial, specifically the right under section 3771(a)(8) of the CVRA to “be treated with fairness and with respect for the 

victim’s dignity and privacy.” Some of the evidence in the case involved sexually 

graphic videos of the abuse of the victims, and the court had previously ruled, in 

light of section 3771(a)(8), that “these videos be displayed on a screen that is visible to the jury, the court, and the parties, but not to people seated in the gallery.”

The court agreed to allow a sketch artist, but held that none of the victims 
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The Crime Victims’ Rights Act of 2004 and the Federal Courts • Federal Judicial Center, Oct. 24, 2005

may be sketched. Section 3771(a)(8) “requires that sketch artists’ activities in the 

courtroom be restricted under the circumstances of this case. First, there is a 

compelling government interest in protecting the dignity, as well as the physical 

and psychological well-being, of mentally-ill alleged crime victims . . . . Most, if 

not all, of the witnesses entitled to protection under 18 U.S.C. § 3771 suffer from 

forms of schizophrenia. The court has already viewed the testimony of two mentally ill witnesses and observed the distress that these individuals exhibited trying to concentrate on the questions and formulate answers. If that distress was 

compounded with concerns that the witness’ picture was going to be shown on 

television as one of those ‘victims’ who appeared in the graphic videos, the victim undoubtedly would not only face considerable additional distress and loss 

of dignity, but . . . might not even be able to testify, thereby damaging the truthseeking function of a criminal trial.” The court concluded that “18 U.S.C. § 3771

proscribes all forms of identification of the victims in this case, including, but not 

limited to, sketching for purposes of television,” the station has to find out from 

the parties’ counsel when a victim will appear as a witness, and “no sketching 

materials of any kind will be visible in the courtroom” when a victim appears.

H. U.S. v.Tobin,No. 04-CR-216-01-SM (D.N.H. July 22, 2005) 

(unpublished order)

The defendant was accused of conspiring to interfere with the right to vote by 

jamming phone lines set up to facilitate “get out the vote” efforts by the New 

Hampshire Democratic Party (NHDP) and a firefighters’ association. When the 

defendant and the prosecutor jointly moved to continue the trial for ninety days, 

the NHDP claimed it was a “victim” under section 3771(e) and filed an objection 

to the motion, arguing that the continuance would violate the “right to proceedings free from unreasonable delay” under section 3771(a)(7). Assuming, without 

deciding, that the NHDP can be considered a victim, the court ruled that the 

continuance was reasonable—it did not violate the Speedy Trial Act and the extra 

time was needed to allow a “full and adequate opportunity to prepare for trial.” 

However, in light of the rights of the ostensible victims, “and taking into account 

the court’s statutory obligation to ‘ensure that [all] crime victim[s][are] afforded 

the rights described,’” the court stated that “the parties are hereby put on notice 

that no further continuance will be granted in the absence of extraordinary circumstances.”

Cf. Turner, 367 F. Supp. 2d at 321 (court notes that it allowed the parties to exclude a period of delay in computing the time within which an indictment must 

have been filed by simply filing with the court a written waiver form signed by 

counsel for both parties, an action that did not require notice to the victims).

I. U.S. v. Guevara-Toloso,No. M 04-1455 (E.D.N.Y. May 23, 2005) 

(unpublished order)

In a case involving the initial appearance of a defendant arrested for illegally reentering the United States after being convicted of a felony and subsequently 

deported, the court asked whether any victim of the predicate crimes had been 
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The Crime Victims’ Rights Act of 2004 and the Federal Courts • Federal Judicial Center, Oct. 24, 2005

given notice pursuant to the CVRA. The prosecutor stated that he did not think 

notice was required and the court agreed, concluding that, because the previous 

convictions were for state offenses, any victims of those crimes did not meet the 

definition in section 3771(e), which does not include victims of state offenses. 

The opinion also includes some discussion of the legislative history of the CVRA.

V.Text of 18 U.S.C. § 3771

§ 3771. Crime victims’ rights

(a) Rights of crime victims.—A crime victim has the following rights: 

(1) The right to be reasonably protected from the accused. 

(2) The right to reasonable, accurate, and timely notice of any public 

court proceeding, or any parole proceeding, involving the crime or of any 

release or escape of the accused. 

(3) The right not to be excluded from any such public court proceeding, 

unless the court, after receiving clear and convincing evidence, determines 

that testimony by the victim would be materially altered if the victim heard 

other testimony at that proceeding. 

(4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. 

(5) The reasonable right to confer with the attorney for the Government 

in the case. 

(6) The right to full and timely restitution as provided in law. 

(7) The right to proceedings free from unreasonable delay. 

(8) The right to be treated with fairness and with respect for the victim’s 

dignity and privacy. 

(b) Rights afforded.—In any court proceeding involving an offense against a 

crime victim, the court shall ensure that the crime victim is afforded the rights 

described in subsection (a). Before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of 

the victim from the criminal proceeding. The reasons for any decision denying 

relief under this chapter shall be clearly stated on the record. 

(c) Best efforts to accord rights.—

(1) Government.—Officers and employees of the Department of Justice 

and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to 

see that crime victims are notified of, and accorded, the rights described in 

subsection (a). 

(2) Advice of attorney.—The prosecutor shall advise the crime victim 

that the crime victim can seek the advice of an attorney with respect to the 

rights described in subsection (a). 

(3) Notice.—Notice of release otherwise required pursuant to this chapter shall not be given if such notice may endanger the safety of any person. 

(d) Enforcement and limitations.—

(1) Rights.—The crime victim or the crime victim’s lawful representative, 
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The Crime Victims’ Rights Act of 2004 and the Federal Courts • Federal Judicial Center, Oct. 24, 2005

and the attorney for the Government may assert the rights described in subsection (a). A person accused of the crime may not obtain any form of relief 

under this chapter. 

(2) Multiple crime victims.—In a case where the court finds that the 

number of crime victims makes it impracticable to accord all of the crime victims the rights described in subsection (a), the court shall fashion a reasonable procedure to give effect to this chapter that does not unduly complicate 

or prolong the proceedings. 

(3) Motion for relief and writ of mandamus.—The rights described in 

subsection (a) shall be asserted in the district court in which a defendant 

is being prosecuted for the crime or, if no prosecution is underway, in the 

district court in the district in which the crime occurred. The district court 

shall take up and decide any motion asserting a victim’s right forthwith. If 

the district court denies the relief sought, the movant may petition the court 

of appeals for a writ of mandamus. The court of appeals may issue the writ 

on the order of a single judge pursuant to circuit rule or the Federal Rules 

of Appellate Procedure. The court of appeals shall take up and decide such 

application forthwith within 72 hours after the petition has been filed. In no 

event shall proceedings be stayed or subject to a continuance of more than 

five days for purposes of enforcing this chapter. If the court of appeals denies 

the relief sought, the reasons for the denial shall be clearly stated on the record in a written opinion. 

(4) Error.—In any appeal in a criminal case, the Government may assert 

as error the district court’s denial of any crime victim’s right in the proceeding 

to which the appeal relates.

(5) Limitation on relief.—In no case shall a failure to afford a right under 

this chapter provide grounds for a new trial. A victim may make a motion to 

re-open a plea or sentence only if—

(A) the victim has asserted the right to be heard before or during the 

proceeding at issue and such right was denied;

(B) the victim petitions the court of appeals for a writ of mandamus 

within 10 days; and

(C) in the case of a plea, the accused has not pled to the highest offense charged.

This paragraph does not affect the victim’s right to restitution as provided in 

title 18, United States Code.

(6) No cause of action.—Nothing in this chapter shall be construed to 

authorize a cause of action for damages or to create, to enlarge, or to imply 

any duty or obligation to any victim or other person for the breach of which 

the United States or any of its officers or employees could be held liable in 

damages. Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.

(e) Definitions.—For the purposes of this chapter, the term “crime victim” 

means a person directly and proximately harmed as a result of the commission of 

a Federal offense or an offense in the District of Columbia. In the case of a crime 
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The Crime Victims’ Rights Act of 2004 and the Federal Courts • Federal Judicial Center, Oct. 24, 2005

victim who is under 18 years of age, incompetent, incapacitated, or deceased, 

the legal guardians of the crime victim or the representatives of the crime victim’s 

estate, family members, or any other persons appointed as suitable by the court, 

may assume the crime victim’s rights under this chapter, but in no event shall the 

defendant be named as such guardian or representative.

(f) Procedures to promote compliance.—

(1) Regulations.—Not later than 1 year after the date of enactment of 

this chapter, the Attorney General of the United States shall promulgate regulations to enforce the rights of crime victims and to ensure compliance by 

responsible officials with the obligations described in law respecting crime 

victims.

(2) Contents.—The regulations promulgated under paragraph (1) 

shall—

(A) designate an administrative authority within the Department of 

Justice to receive and investigate complaints relating to the provision or 

violation of the rights of a crime victim;

(B) require a course of training for employees and offices of the 

Department of Justice that fail to comply with provisions of Federal law 

pertaining to the treatment of crime victims, and otherwise assist such 

employees and offices in responding more effectively to the needs of 

crime victims;

(C) contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who 

willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims; and

(D) provide that the Attorney General, or the designee of the Attorney 

General, shall be the final arbiter of the complaint, and that there shall 

be no judicial review of the final decision of the Attorney General by a 

complainant. 
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The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Magistrate Judge Karen Klein, U.S. District Court for the District of North Dakota

Judge Pierre N. Leval, U.S. Court of Appeals for the Second Circuit

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of Pennsylvania

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Leonidas Ralph Mecham, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It 

was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial 

Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes 

the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial 

Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division 

plans and produces education and training programs for judges and court staff, including satellite broadcasts, video programs, publications, curriculum packages for in-court training, and Webbased programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This research assists Judicial Conference committees, who 

request most Center research, in developing policy recommendations. The Center’s research also 

contributes substantially to its educational programs. The two divisions work closely with two units 

of the Director’s Office—the Systems Innovations & Development Office and Communications 

Policy & Design Office—in using print, broadcast, and on-line media to deliver education and 

training and to disseminate the results of Center research. The Federal Judicial History Office helps 

courts and others study and preserve federal judicial history. The International Judicial Relations 

Office provides information to judicial and legal officials from foreign countries and assesses how 

to inform federal judicial personnel of developments in international law and other court systems 

that may affect their work.

Federal Judicial Center

Thurgood Marshall Federal Judiciary Building

One Columbus Cir NE, Washington DC 20002-8003