Crime Victims’ Rights Report 2007 

Summary – uscourts.gov

This is the third of the annual reports to Congress on crime victims' rights as required 

under the Justice for All Act of 2004, § 104(a), 18 U.S.C. § 3771 note (supp. I 2005). Pursuant to 

that legislation, the Administrative Office of the United States Courts (AO) is to report "the 

number of times that a right established in Chapter 237 of title 18, United States Code, is

asserted in a criminal case and the relief requested is denied and, with respect to each such 

denial, the reason for such denial, as well as the number of times a mandamus action is brought 

pursuant to Chapter 247 of title 18, and the result reached." Id. In the federal trial courts there 

were more than 68,400 criminal cases filed involving more than 89,300 defendants during fiscal 

2007. In the past year, the AO has received reports from the appellate courts on four mandamus 

actions brought per the provisions of the Act and has similarly identified four district court cases 

that meet the statute's reporting criteria.

A summary in chronological order of those mandamus and trial court actions follows, 

including the reasons provided for the decisions in each of the cases. Two additional reports of 

criminal cases that had been decided during the previous reporting period were forwarded 

recently to the AO; summaries of those matters are also included.

United States v. Kevin L. Koetz, No. 05-CR-234 (E.D. WI. March 13, 2006). The United 

States moved to reopen a sentencing, pursuant to 18 U.S.C. § 3771, after it had discovered that a 

victim of one of the armed robberies to which the defendant had entered a plea had been 

misinformed as to the time of the initial sentencing event. The government had previously 

notified the victim of the time and place for her to provide a victim-impact statement, but failed 

to inform either the victim or the victim-witness office that the Court had rescheduled the 

proceeding. While seeking the opportunity for the victim to exercise her right to make a

statement and while informing the Court that counsel for the defendant had no objection to the 

requested reopening, the United States asserted that it would not be recommending that the Court 

alter the sentence previously imposed. The Court, per Margin Order, denied the government's 

motion.

United States v. L.M, No. 06-CR-18 {N.D. IA. March 31, 2006). In a juvenile 

delinquency proceeding charging a minor with having distributed heroin the use of which, in 

turn, resulted in the death of another juvenile, the government sought, among other things, to 

provide the victim's family with notification of and access to the various hearings to be 

convened. The Court concluded that the Crime Victims' Rights Act only applies to "public" court 

proceedings and held that the pending Transfer Hearing was not such a public event. Thus, while 

the victim's family would be notified of the proceedings against the juvenile, the hearing on 

whether to transfer him to adult status would be closed to the public and to the family members.
The government was directed to inform the victims of their rights under the act including their 

right to appeal the instant order.

In re: Edgar Searcy, No. 06-7703 (4th Cir. October 6, 2006). Petitioner Searcy sought a 

writ of mandamus in the United States Court of Appeals for the Fourth Circuit, pursuant to 18

U.S.C. § 3771(d), asserting that he had been denied the right to obtain restitution for a crime of 

violence perpetrated against him by a fellow federal inmate. His underlying civil RICO 

conspiracy suit seeking restitution and damages had been dismissed by the district court, 

adopting the recommendation of the magistrate judge that petitioner had no Crime Victims' 

Rights Act claims where, as in this instance, no criminal prosecution had been initiated by the 

government against the alleged perpetrator. The appellate court denied the petition for 

mandamus relief noting that the complainant was not entitled to the protections of 18 U.S.C. § 

3771 in his civil RICO proceeding and, if he was dissatisfied with the district court's dismissal of 

the complaint, review of that disposition could have been obtained by appeal.

In re: Russell P. Butler, No. 06-20848 (5th Cir. November 1, 2006). Petitioner Butler, on 

behalf of himself and others, sought a writ of mandamus in the United States Court of Appeals 

for the Fifth Circuit, pursuant to the Crime Victims' Rights Act ("CVRA"), asking the appellate 

court to reverse and remand the decision in United States v. Jeffrey Skilling and Kenneth Lay, 

granting the motion of defendant Lay's estate to vacate his conviction and dismiss his indictment. 

The court of appeals, referencing the doctrine of abatement recently recognized in United States

v. Estate of Parsons, 367 F.3d 409 (5th Cir. 2004) (en bane) as providing the grounding for the 

district court's order, found nothing in the CVRA that purports to exempt the provisions of the 

act from the venerable doctrine which mandates that the conviction of a defendant who dies 

before he has the opportunity to appeal is to be expunged. Since defendant Lay had no longer 

been convicted and since the CVRA does not grant victims any rights against individuals who 

have not been convicted of crime, the court of appeals denied the petition.

United States v. Jeremy Sharp, No. 3:06cr182 (E.D. VA. November 22, 2006). Defendant 

pled guilty to conspiracy to possess with intent to distribute marijuana. At sentencing, a woman 

who claimed she had been physically, mentally and emotionally abused by an alleged customer 

of the defendant sought permission to provide a victim impact statement pursuant to the 

provisions of the Crime Victims' Rights Act. Concluding that the claimant was unable to 

demonstrate that the harm she may have suffered was a foreseeable consequence of the 

defendant's drug conspiracy nor was it an essential element for accomplishing his criminal acts, 

the Court held that those injuries were not the direct and proximate result of the offense of 

conviction. Thus the woman was not a victim under the provisions of 18 U.S.C. § 3771 and was 

not permitted to offer a victim's impact statement.
In re: Dominic Sabbia, No. 07-1368 (7th Cir. February 21, 2007). Petitioner Sabbia 

sought a writ of mandamus under the Crime Victims' Rights Act, 18 U.S.C. § 3771 in the Court 

of Appeals for the Seventh Circuit asserting that the Department of Justice had denied him the 

rights afforded under the act because three individuals (a former business partner and two 

associates) had used the Circuit Court of Cook County and the Bankruptcy Court for the 

Northern District of Illinois to defraud him. His claims of fraud relate to a state court proceeding 

brought by the former partner for dissolution of the partnership (and other matters) and the 

petitioner's subsequent failed attempts to overturn various state court judgements in the federal 

district and bankruptcy courts without directly appealing those state rulings. Noting that the act 

was not implicated because no criminal proceedings were ever initiated in the district court and 

commenting that it possessed no power or authority to order the Department to prosecute the 

wrongs the petitioner feels he has suffered, the court of appeals labeled the request frivolous and 

denied the petition. Additionally, the court concluded that the petitioner's history of frequent 

frivolous filings merited a warning that repeating such activity will subject him to monetary fines 

and a possible bar order forbidding his filing of any further legal papers in any court within the 

circuit.

United States v. Scott Sacane, No. 3:05cr325 (D. CT. March 28, 2007). Defendant 

entered a plea of guilty to violation of the Investment Advisors Act of 1940. In advance of a 

hearing to address restitution issues, representatives of the funds that had incurred losses as a 

result of the fraudulent activity moved for an order requiring the defendant to provide detailed 

financial disclosure of assets and holdings per § 3771(a) of the Crime Victims' Rights Act.

Analogizing to decisions denying victims access to information contained within a presentence 

report, the Court concluded that the act does not grant a right to discover financial information

directly from a defendant. Moreover, the Court noted that, while the act provides an opportunity 

for victims to be heard, information on which to base their input in that regard is to be obtained 

from the prosecution. Since the government had already sought many of the same documents 

sought in the victims' petition, there existed no reason to bypass that process. The motion was 

denied.

United States v. Citgo Petroleum Corp., No. C-06-563 (S.D. TX. August 8, 2007).

Alluding to its duties under the provisions of the Crime Victims' Rights Act (18 U.S.C. §3771), 

the government moved to unseal the Submission in Aid of Sentencing that it had previously 

forwarded to the United States Probation Office. In denying the motion, the Court noted the 

longstanding practice and sound policy regarding the treatment of presentence investigation 

reports as confidential and thus not public documents, citing United States v. Huckaby. 43 F.3d 

135, 137 (5th Cir. 1995). Also per Huckaby, while disclosure might be allowed upon the 

showing of a compelling, particularized need, the Court held that the requisite showing had not 

been made. Finally, while the document to be unsealed here was not the actual presentence 

report, it contained information of the same type and character that is normally found in such 

reports and, thus, the same considerations were to be applied.
In re: Jane Doe, No. 07-1705 (4th Cir. August 9, 2007). Petitioner Doe sought a writ of 

mandamus in the United States Court of Appeals for the Fourth Circuit, pursuant to the Crime 

Victims' Rights Act, 18 U.S.C. §3771, arguing that the district court had wrongly denied her the 

right to full and timely restitution for injuries caused by the Purdue Frederick Company, Inc., the 

manufacturer of the prescription painkiller OxyContin. Purdue had entered a plea to a single 

count of misbranding with intent to defraud and had agreed with the government to pay fines, 

penalties and restitution to a limited number of entities affected by its conduct. The district court 

had rejected petitioner's claim that she had been harmed as a result of using the drug, finding no 

legal basis to support the related motion. After discussing the competing standards of review to 

be applied for mandamus petitions, the appellate court concluded that the petitioner was not 

legally entitled to any relief in this matter even under the lower standard authorized by §3771.

Finding that the petitioner had not proffered in any of her pleadings any evidence from which to 

conclude that she suffered "direct and proximate" harm from the defendant's misbranding of 

OxyContin, the court of appeals opined that she did not qualify as a victim under the relevant 

restitution statute (the Victim and Witness Protection Act, 18 U.S.C. §3663). Even though the 

petitioner may have been injured or harmed by activities related to the crime, such is not 

sufficient by itself to support the application of §3663 restitution via the Crime Victims Rights 

Act. The petition for a writ of mandamus was denied.

United States v. David McQuillan, No. 07 Cr. 17 (S.D.N.Y. September 26, 2007). As part 

of his guilty plea to two counts of securities fraud, the defendant and the government agreed that 

neither the amount of loss attributable to the criminal conduct nor the amount of gain stemming 

therefrom could be reasonably determined. While as a consequence of that stipulation the 

probation office did not recommend that any restitution be imposed, two individuals asserted that 

they were victims of the defendant's conduct and sought restitution (both per the Crime Victims' 

Rights Act, 18 U.S.C. §3771(a)(6), and the Mandatory Victim Restitution Act, 18 U.S.C.

§3663A(c)(l)(A)(ii)) for the monies that they would have had had they never invested in the 

defendant's company. The Court denied the motion noting that restitution does not apply where 

the need to provide same to any victims "is outweighed by the burden on the sentencing 

process," citing 18 U.S.C. §3663A(c)(3)(B). After considering the stipulation as to gain and loss, 

the complexity of the causation issues therein involved, the difficulties in locating and awarding 

restitution to the remaining millions of purchasers and other matters, the Court concluded that 

the burden from those factors would complicate and prolong the process to an extent that any 

need to provide restitution was negated.