b'Availability of Rights Under the\nCrime Victims\xe2\x80\x99 Rights Act of 2004\nThe rights provided by the Crime Victims\xe2\x80\x99 Rights Act are guaranteed from the time that\ncriminal proceedings are initiated (by complaint, information, or indictment) and cease\nto be available if all charges are dismissed either voluntarily or on the merits (or if the\ngovernment declines to bring formal charges after the filing of a complaint).\nDecember 17, 2010\n\nMEMORANDUM OPINION FOR THE\nACTING DEPUTY ATTORNEY GENERAL\nThe Crime Victims\xe2\x80\x99 Rights Act (\xe2\x80\x9cCVRA\xe2\x80\x9d), enacted as section 102 of\nthe Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260,\n2261\xe2\x80\x9364 (codified at 18 U.S.C. \xc2\xa7 3771 (2006 & Supp. III 2009)), guarantees victims of federal (and District of Columbia) crimes eight rights.\nSee 18 U.S.C. \xc2\xa7 3771(a). In connection with an effort to update the Attorney General\xe2\x80\x99s Guidelines for Victims and Witness Assistance, you have\nasked whether some or all of these rights must be made available to crime\nvictims before the United States files charges and whether the rights no\nlonger apply once the relevant charges are declined, dropped, or dismissed.\nIn 2005, this Office conducted a preliminary review of these questions\nand concluded that a person\xe2\x80\x99s status as a qualifying crime victim under\nthe Act could reasonably be understood to commence upon the filing of a\ncriminal complaint, and could reasonably be understood to cease if the\nrelevant charges are declined, dropped, or dismissed. See E-mail for\nRachel Brand et al., Office of Legal Policy, from Luke Sobota, Office of\nLegal Counsel (Apr. 1, 2005). That informal guidance did not foreclose\nthe possibility that other readings of the CVRA might also be reasonable.\nWe observed, however, that the statutory definition of \xe2\x80\x9ccrime victim,\xe2\x80\x9d the\nnature of the rights provided under the Act, and the CVRA\xe2\x80\x99s legislative\nhistory all suggested that the rights guaranteed by the CVRA were limited\nin their applicability to pending criminal proceedings. Having carefully\nconsidered written submissions by components of the Department as well\nas other federal law enforcement agencies, and for the reasons outlined\nbelow, we now conclude, consistent with our 2005 guidance, that the\nCVRA is best read as providing that the rights identified in section\n239\n\n\x0c34 Op. O.L.C. 239 (2010)\n\n3771(a) are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available\nif all charges are dismissed either voluntarily or on the merits (or if the\ngovernment declines to bring formal charges after the filing of a complaint). 1\nThe questions we address are limited to issues of statutory obligation\nunder the CVRA. We express no opinion as to whether any of the rights\nidentified in 18 U.S.C. \xc2\xa7 3771(a) should be provided prior to the filing of\na complaint (or after the dismissal of charges) as a matter of good pracSee Memorandum for John E. Bies, Deputy Assistant Attorney General, Office of\nLegal Counsel, from Christine A. Varney, Assistant Attorney General, Antitrust Division\n(Sept. 27, 2010); E-mail for John Bies, Deputy Assistant Attorney General, Office of\nLegal Counsel, from Karen Stevens, Acting Chief, Policy and Strategy Section, Civil\nRights Division (Oct. 4, 2010, 9:06 PM); Memorandum for John E. Bies, Deputy Assistant Attorney General, Office of Legal Counsel, from Eugene Thirolf, Director, Office of\nConsumer Litigation, Civil Division (Sept. 24, 2010); Memorandum for John E. Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Patty M. Stemler,\nChief, Appellate Section, Criminal Division (Sept. 30, 2010); Memorandum for Jonathan\nCedarbaum, Acting Assistant Attorney General, Office of Legal Counsel, from Ignacia S.\nMoreno, Assistant Attorney General, Environment and Natural Resources Division (Sept.\n27, 2010) (\xe2\x80\x9cENRD Memo\xe2\x80\x9d); Memorandum for John Bies, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from H. Marshall Jarrett, Director, Executive Office for\nUnited States Attorneys (Sept. 29, 2010); Office of the Assistant Attorney General,\nNational Security Division, White Paper, The Vesting of Rights Under the Crime Victims\nRights Act (Sept. 29, 2010); Memorandum for John E. Bies, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Ronald A. Cimino, Deputy Assistant Attorney\nGeneral, Tax Division (Sept. 24, 2010); Memorandum for Jonathan Cedarbaum, Acting\nAssistant Attorney General, Office of Legal Counsel, from Christopher H. Schroeder,\nAssistant Attorney General, Office of Legal Policy (Sept. 28, 2010); E-mail for John Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Rafael Madan, General Counsel, Office of Justice Programs (Sept. 29, 2010, 7:23 PM); E-mail for John Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from St. Clair Theodore,\nAssistant General Counsel, Federal Bureau of Investigation (Sept. 27, 2010, 2:52 PM);\nMemorandum for John E. Bies, Deputy Assistant Attorney General, Office of Legal\nCounsel, from Wendy H. Goggin, Chief Counsel, Drug Enforcement Administration\n(Oct. 6, 2010); E-mail for John Bies, Deputy Assistant Attorney General, Office of Legal\nCounsel, from Audrey J. Anderson, Associate General Counsel, Office of Legal Counsel,\nDepartment of Homeland Security (Sept. 30, 2010, 3:17 PM); E-mail for John Bies,\nDeputy Assistant Attorney General, Office of Legal Counsel, from Christopher B. Sterner, Deputy Chief Counsel (Operations), Internal Revenue Service, Department of the\nTreasury (Sept. 24, 2010, 9:22 AM). We appreciate the thoroughness and thoughtfulness\nof these submissions.\n1\n\n240\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\ntice, Departmental policy, or pursuant to the provisions of other victimrelated statutes, such as section 503 of the Victims\xe2\x80\x99 Rights and Restitution\nAct of 1990, 42 U.S.C. \xc2\xa7 10607 (2006). 2\nI.\nThe CVRA defines a \xe2\x80\x9ccrime victim\xe2\x80\x9d in relevant part as \xe2\x80\x9ca person directly and proximately harmed as a result of the commission of a Federal\noffense or an offense in the District of Columbia.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3771(e).\nThe Act states that crime victims so defined have the following rights:\n(1) The right to be reasonably protected from the accused.\n(2) The right to reasonable, accurate, and timely notice of any\npublic court proceeding, or any parole proceeding, involving the\ncrime or of any release or escape of the accused.\n(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\naltered if the victim heard other testimony at that proceeding.\n(4) The right to be reasonably heard at any public proceeding in\nthe district court involving release, plea, sentencing, or any parole\nproceeding.\n(5) The reasonable right to confer with the attorney for the Government in the case.\n(6) The right to full and timely restitution as provided by law.\n(7) The right to proceedings free from unreasonable delay.\n(8) The right to be treated with fairness and with respect for the\nvictim\xe2\x80\x99s dignity and privacy.\n18 U.S.C. \xc2\xa7 3771(a)(1)\xe2\x80\x93(8). The CVRA repealed and replaced section 502\nof the Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789,\n\n2 This memorandum addresses only the CVRA. It does not address the application of\nother statutes providing for rights, services, or restitution for crime victims, including\nwhen such other statutes apply or who might qualify as a \xe2\x80\x9cvictim\xe2\x80\x9d under them. Likewise,\nwe were not asked, and intimate no view on, the question of what constitutes the \xe2\x80\x9cdirect\nand proximate harm\xe2\x80\x9d necessary to qualify as a \xe2\x80\x9ccrime victim\xe2\x80\x9d under the CVRA for a\ngiven offense, as opposed to the question of when such rights must be provided.\n\n241\n\n\x0c34 Op. O.L.C. 239 (2010)\n\n4820 (codified at 42 U.S.C. \xc2\xa7 10606 (2000)), which appeared in a portion\nof that statute known as the Victims\xe2\x80\x99 Rights and Restitution Act of 1990\n(\xe2\x80\x9cVRRA\xe2\x80\x9d), and which originally provided crime victims with a very\nsimilar list of rights. 3 (Other sections of the VRRA remain in force.)\nHaving identified these rights, the Act provides several avenues for\ntheir protection: by the courts, by Executive Branch officers, and finally\nby providing standing to victims themselves. First, the Act states that\n\xe2\x80\x9c[i]n any court proceeding involving an offense against a crime victim,\nthe court shall ensure that the crime victim is afforded [these rights].\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 3771(b)(1). Second, the Act provides that \xe2\x80\x9c[o]fficers and\nemployees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime\xe2\x80\x9d shall \xe2\x80\x9cmake their best efforts to see that crime victims\nare notified of, and accorded, the rights described in subsection (a),\xe2\x80\x9d id.\n\xc2\xa7 3771(c)(1), and it requires \xe2\x80\x9c[t]he prosecutor\xe2\x80\x9d to \xe2\x80\x9cadvise the crime victim that the crime victim can seek the advice of an attorney with respect\nto the rights described in subsection (a),\xe2\x80\x9d id. \xc2\xa7 3771(c)(2). Third, the Act\nauthorizes crime victims, or their lawful representatives, as well as \xe2\x80\x9cthe\nattorney for the Government,\xe2\x80\x9d id. \xc2\xa7 3771(d)(1), to assert CVRA rights by\nmotion \xe2\x80\x9cin the district court in which a defendant is being prosecuted for\nthe crime or, if no prosecution is underway, in the district court in the\n3\n\nThe VRRA had read as follows:\n(b) Rights of Crime Victims.\xe2\x80\x94A crime victim has the following rights:\n(1) The right to be treated with fairness and with respect for the victim\xe2\x80\x99s dignity and privacy.\n(2) The right to be reasonably protected from the accused offender.\n(3) The right to be notified of court proceedings.\n(4) The right to be present at all public court proceedings related to the offense, unless the court determines that testimony by the crime victim would be\nmaterially affected if the victim heard other testimony at trial.\n(5) The right to confer with [the] attorney for the Government in the case.\n(6) The right to restitution.\n(7) The right to information about the conviction, sentencing, imprisonment,\nand release of the offender.\n\n42 U.S.C. \xc2\xa7 10606(b)(1)\xe2\x80\x93(7) (2000). The rights provided in the VRRA applied to any\nvictim of crime, defined in section 503 of that Act as \xe2\x80\x9ca person that has suffered direct\nphysical, emotional, or pecuniary harm as a result of the commission of a crime,\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 10607(e)(2) (2006), including a crime under federal, state, or tribal law.\n\n242\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\ndistrict in which the crime occurred,\xe2\x80\x9d id. \xc2\xa7 3771(d)(3). The Act directs the\ndistrict court \xe2\x80\x9cto take up and decide [such a motion] forthwith.\xe2\x80\x9d Id. The\nAct provides for expedited mandamus review by the court of appeals of\nany decision denying relief, id., and it permits the government (but not the\ncrime victim) to assert as error on appeal any denial of a crime victim\xe2\x80\x99s\nright, id. \xc2\xa7 3771(d)(4). The Act provides that a crime victim may seek to\nreopen a plea or a sentence in limited circumstances. See id. \xc2\xa7 3771(d)(5).\nFinally, the Act provides that \xe2\x80\x9c[n]othing in this chapter shall be construed\nto authorize a cause of action for damages,\xe2\x80\x9d id. \xc2\xa7 3771(d)(6), and directs\nthat \xe2\x80\x9c[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction,\xe2\x80\x9d\nid.\nIn addition to providing means for judicial enforcement of the rights it\nguarantees, the Act directs the Attorney General to \xe2\x80\x9cpromulgate regulations to enforce the rights of crime victims and to ensure compliance by\nresponsible officials with the obligations described in law respecting\ncrime victims.\xe2\x80\x9d Id. \xc2\xa7 3771(f)(1). These regulations \xe2\x80\x9cshall . . . designate an\nadministrative authority within the Department of Justice to receive and\ninvestigate complaints relating to the provision or violation of the rights\nof a crime victim,\xe2\x80\x9d id. \xc2\xa7 3771(f)(2)(A); \xe2\x80\x9crequire a course of training for\nemployees and offices of the Department of Justice that fail to comply\nwith provisions of Federal law pertaining to the treatment of crime victims,\xe2\x80\x9d id. \xc2\xa7 3771(f)(2)(B); \xe2\x80\x9ccontain disciplinary sanctions, including\nsuspension 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,\xe2\x80\x9d id.\n\xc2\xa7 3771(f)(2)(C); and \xe2\x80\x9cprovide that the Attorney General, or the designee\nof the Attorney General, shall be the final arbiter of the complaint, and\nthat there shall be no judicial review of the final decision of the Attorney\nGeneral by a complainant,\xe2\x80\x9d id. \xc2\xa7 3771(f)(2)(D). Pursuant to the Act\xe2\x80\x99s\ndirective, the Attorney General has promulgated regulations establishing\nprocedures for crime victims to file complaints regarding the provision of\nCVRA rights or other obligations regarding crime victims provided by\nlaw, and to have such complaints adjudicated. See 28 C.F.R. \xc2\xa7 45.10\n(2010).\n\n243\n\n\x0c34 Op. O.L.C. 239 (2010)\n\nII.\nWhile a number of provisions in the CVRA indicate that the rights it\nguarantees do not apply until after the initiation of criminal proceedings, a\nfew provisions could be read to suggest that at least some of the rights are\nto be provided before any charges are filed. In our view, the better reading of the Act\xe2\x80\x94considering its text, structure, purpose, and legislative\nhistory\xe2\x80\x94is that the rights provided by the CVRA are guaranteed only\nfrom the time criminal proceedings are initiated through a complaint,\ninformation, or indictment. See, e.g., United Sav. Ass\xe2\x80\x99n of Tex. v. Timbers\nof Inwood Forest Assocs. Ltd., 484 U.S. 365, 371 (1988) (\xe2\x80\x9c[s]tatutory\nconstruction . . . is a holistic endeavor\xe2\x80\x9d). To begin with, there are a number of textual indications that Congress was focused on providing crime\nvictims an opportunity to participate in pending criminal proceedings;\nthese include the use of the term \xe2\x80\x9coffense\xe2\x80\x9d in the definition of \xe2\x80\x9ccrime\nvictim\xe2\x80\x9d and the use of a number of terms\xe2\x80\x94e.g., \xe2\x80\x9cthe accused,\xe2\x80\x9d \xe2\x80\x9ccourt\nproceedings,\xe2\x80\x9d and \xe2\x80\x9cin the case\xe2\x80\x9d\xe2\x80\x94in the characterizations of several of the\nrights in section 3771(a). The nature of the CVRA rights considered as a\nwhole also reflects a paramount focus on ensuring that crime victims have\nstanding and an opportunity to be heard in pending criminal proceedings\ninvolving conduct that harmed them. This focus is embodied in the enforcement mechanisms provided in the Act, which direct courts to ensure\nthat crime victims are afforded their CVRA rights to participate in pending criminal proceedings and empower crime victims to file motions to\nenforce these rights directly in such proceedings without intervening or\nbecoming a party. The judicial enforceability of CVRA rights by victims\nthemselves distinguishes those rights, in the main, from the rights protected in other victims\xe2\x80\x99 rights statutes, and counsels a construction of the Act\nthat clearly defines the availability of the rights. The CVRA\xe2\x80\x99s legislative\nhistory likewise reflects the importance to Congress of ensuring that\ncrime victims be heard in the judicial process, and that they have standing\nto protect their interests in such proceedings. By contrast, there is no\nindication in the Act or its legislative history that Congress intended to\nempower crime victims to initiate independent court proceedings outside\nthe context of a pending criminal proceeding to enforce their rights under\nthe Act, and thereby compel federal courts to adjudicate the existence of a\nfederal offense absent any formal charging decision by the government, a\n244\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\nprospect that would be in considerable tension with the Act\xe2\x80\x99s express\ndisavowal of any intent to \xe2\x80\x9cimpair . . . prosecutorial discretion.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 3771(d)(6).\nA.\nAn analysis of the rights provided by the CVRA logically begins with\nits definition of \xe2\x80\x9ccrime victim.\xe2\x80\x9d Only \xe2\x80\x9ccrime victims\xe2\x80\x9d are entitled to the\nrights articulated in 18 U.S.C. \xc2\xa7 3771(a), the opening clause of which\nstates that \xe2\x80\x9c[a] crime victim has the following rights.\xe2\x80\x9d For the purposes of\nthe CVRA, a \xe2\x80\x9ccrime victim\xe2\x80\x9d is defined as \xe2\x80\x9ca person directly and proximately harmed as a result of the commission of a Federal offense or an\noffense in the District of Columbia.\xe2\x80\x9d Id. \xc2\xa7 3771(e) (emphasis added). 4 The\nCVRA\xe2\x80\x99s definition of \xe2\x80\x9ccrime victim,\xe2\x80\x9d however, does not conclusively\nresolve the question of when the rights afforded in section 3771(a) become available. Nevertheless, the definition\xe2\x80\x99s requirement that a crime\nvictim be harmed as a result of the commission of a federal \xe2\x80\x9coffense\xe2\x80\x9d\nnaturally suggests that a person\xe2\x80\x99s status as a \xe2\x80\x9ccrime victim\xe2\x80\x9d can only be\ndetermined after there has been a formal decision to charge a defendant\nwith a particular federal offense. Under this reading, the earliest that a\n\xe2\x80\x9ccrime victim\xe2\x80\x9d under the Act could be identified would be upon the filing\nof a criminal complaint\xe2\x80\x94that is, at the earliest point at which there is a\nsworn written statement of probable cause to believe that a particular\ndefendant committed an identified federal offense, see Fed. R. Crim. P. 4,\nand hence the first point at which it is possible with any certainty to\nidentify a \xe2\x80\x9ccrime victim\xe2\x80\x9d directly and proximately harmed by the commission of that offense. As our 2005 informal advice observed, before the\nfiling of a criminal complaint, it is not clear how one ascertains whether a\nparticular harm is the result of a \xe2\x80\x9cFederal offense\xe2\x80\x9d or some other sort of\nconduct that does not constitute a \xe2\x80\x9cFederal offense.\xe2\x80\x9d 5 Consistent with this\n4 Hereafter, this memorandum will use \xe2\x80\x9cfederal offense\xe2\x80\x9d to refer to offenses either\nunder federal law or the laws of the District of Columbia.\n5 This reading of the definition of \xe2\x80\x9ccrime victim\xe2\x80\x9d also finds some support in the history of the CVRA\xe2\x80\x99s enactment. As noted, the CVRA repealed and replaced section 502 of\nthe VRRA (codified at 42 U.S.C. \xc2\xa7 10606 (2000)), which originally provided victims of\ncrime with a very similar list of rights, see supra note 3. The VRRA defined \xe2\x80\x9cvictim\xe2\x80\x9d\nbroadly as \xe2\x80\x9ca person that has suffered direct physical, emotional, or pecuniary harm as a\nresult of the commission of a crime,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 10607(e)(2) (2006), including the\n\n245\n\n\x0c34 Op. O.L.C. 239 (2010)\n\nreading, most courts to consider who qualifies as a \xe2\x80\x9ccrime victim\xe2\x80\x9d under\nthe Act have declined to extend enforceable rights under the CVRA to\nalleged victims of conduct that did not lead to criminal proceedings. 6\n\ncommission of a crime under federal, state, or tribal law. Rather than adopt this definition of \xe2\x80\x9ccrime victim\xe2\x80\x9d in the CVRA, Congress relied on a definition that appears to be\ntaken nearly verbatim from two prior federal victim-oriented statutes that limit rights to\nrestitution to individuals \xe2\x80\x9cdirectly and proximately harmed\xe2\x80\x9d by an \xe2\x80\x9coffense.\xe2\x80\x9d See 18\nU.S.C. \xc2\xa7 3663(a)(2) (2006 & Supp. III 2009) (defining \xe2\x80\x9cvictim\xe2\x80\x9d for purposes of the\nVictim and Witness Protection Act of 1982 (\xe2\x80\x9cVWPA\xe2\x80\x9d) as \xe2\x80\x9ca person directly and proximately harmed as a result of the commission of an offense for which restitution may be\nordered\xe2\x80\x9d); 18 U.S.C. \xc2\xa7 3553A(a)(2) (same for purposes of the Mandatory Victims Restitution Act). Congress\xe2\x80\x99s apparent decision to adopt the VWPA\xe2\x80\x99s definition of \xe2\x80\x9cvictim\xe2\x80\x9d is\npotentially significant insofar as it allows us to look for guidance to decisions interpreting\nthat statute. See Hughey v. United States, 495 U.S. 411, 422 (1990) (holding that VWPA\nauthorized restitution only for losses caused by the offense of conviction). Indeed, some\ncourts have interpreted the CVRA based on the assumption that Congress was aware that\ncourts had interpreted the VWPA not to apply to uncharged conduct. See, e.g., United\nStates v. Turner, 367 F. Supp. 2d 319, 326\xe2\x80\x9327 (E.D.N.Y. 2005) (\xe2\x80\x9c[T]he full Congress\npassed the [CVRA] knowing that similar language in an earlier victims\xe2\x80\x99 rights bill had\nbeen interpreted not to refer to uncharged conduct. . . . Since the [VWPA] and the CVRA\nuse similar definitions of \xe2\x80\x98victim,\xe2\x80\x99 it appears that the same reasoning would exclude\nvictims of uncharged conduct from the class of those entitled to participatory rights under\nthe [CVRA].\xe2\x80\x9d (footnote omitted)). This comports with how courts have interpreted the\nCVRA in the context of restitution claims; in that context they have emphasized the\nstatutory requirement of \xe2\x80\x9cdirect and proximate harm\xe2\x80\x9d caused by the offense of conviction\nto limit the standing of alleged crime victims to assert restitution claims under the CVRA.\nSee In re Rendon Galvis, 564 F.3d 170, 175\xe2\x80\x9376 (2d Cir. 2009); In re Stewart 552 F.3d\n1285, 1288\xe2\x80\x9389 (11th Cir. 2008); In re Antrobus, 519 F.3d 1123, 1125\xe2\x80\x9326 (10th Cir.\n2008); United States v. Atlantic States Cast Iron Pipe Co., 612 F. Supp. 2d 453, 545\n(D.N.J. 2009); United States v. Sharp, 463 F. Supp. 2d 556, 563\xe2\x80\x9364 (E.D. Va. 2006).\nHowever, insofar as restitution, unlike many of the other rights provided in section\n3771(a), necessarily depends on the existence of a predicate conviction, these considerations are only suggestive.\n6 See, e.g., Turner, 367 F. Supp. 2d at 326\xe2\x80\x9327 (excluding victims of uncharged conduct from the class of those entitled to participatory rights under the Act because \xe2\x80\x9cthe\noffense charged against a defendant can serve as a basis for identifying a \xe2\x80\x98crime victim\xe2\x80\x99\nas defined in the CVRA\xe2\x80\x9d); Searcy v. Paletz, No. 6:07-1389-GRA-WMC, 2007 WL\n1875802, at *6 (D.S.C. June 27, 2007) (inmate does not qualify as a \xe2\x80\x9ccrime victim\xe2\x80\x9d\nunder the CVRA where there has been a prosecutorial decision not to charge another\ninmate accused of attacking him); Searcy v. Skinner, No. 6:06-1418-GRA-WMC, 2006\nWL 1677177, at *2 (D.S.C. June 16, 2006) (where Government had declined to bring a\nprosecution against an inmate accused of attacking plaintiff, he could not use the CVRA\nas basis to bring his own action against inmate). But see United States v. BP Prods. N.\n\n246\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\nB.\nStanding alone, the CVRA\xe2\x80\x99s definition of \xe2\x80\x9ccrime victim\xe2\x80\x9d is not dispositive of the questions you have posed. But when we consider other aspects\nof the Act, including the nature of the rights conferred, the enforcement\nmechanisms adopted, the general structure and purposes of the Act, and\nthe Act\xe2\x80\x99s legislative history, they only strengthen the conclusion that the\nAct is best understood to confer the rights in section 3771(a) only when a\ndirect and proximate relationship can be drawn between the victim and an\nunderlying federal offense with which a defendant has been charged in a\nfederal criminal proceeding.\nTo begin with, the rights conferred in 18 U.S.C. \xc2\xa7 3771(a), taken together, appear to contemplate the existence of an ongoing criminal proceeding initiated by the government. Five of the eight rights articulated\nthere expressly refer to or necessarily presuppose the existence of a criminal proceeding. Id. \xc2\xa7 3771(a)(2), (3), (4), (6), (7). Three of these reflect\nthe victim\xe2\x80\x99s right to notification of, access to, and opportunity to be heard\nin public court proceedings involving release, plea, sentencing, or parole.\nId. \xc2\xa7 3771(a)(2) (\xe2\x80\x9cThe right to reasonable, accurate, and timely notice of\nany public court proceeding, or any parole proceeding, involving the\ncrime or of any release or escape of the accused.\xe2\x80\x9d); id. \xc2\xa7 3771(a)(3) (\xe2\x80\x9cThe\nright not to be excluded from any such public court proceeding, unless the\ncourt, after receiving clear and convincing evidence, determines that\ntestimony by the victim would be materially altered if the victim heard\nother testimony at that proceeding.\xe2\x80\x9d); id. \xc2\xa7 3771(a)(4) (\xe2\x80\x9cThe right to be\nreasonably heard at any public proceeding in the district court involving\nrelease, plea, sentencing, or any parole proceeding.\xe2\x80\x9d). Two others, regarding the right to restitution and the right to proceedings free from unreasonable delay, likewise presume the existence of criminal proceedings\nagainst a defendant. Id. \xc2\xa7 3771(a)(6) (\xe2\x80\x9cThe right to full and timely restitution as provided in law.\xe2\x80\x9d); id. \xc2\xa7 3771(a)(7) (\xe2\x80\x9cThe right to proceedings free\nfrom unreasonable delay.\xe2\x80\x9d).\n\nAm. Inc., No. H-07-434, 2008 WL 501321, at *11\xe2\x80\x9316 (S.D. Tex. Feb. 21, 2008) (finding\ncertain CVRA rights to apply pre-charge but construing them narrowly so as not to\ninterfere with prosecutorial discretion).\n\n247\n\n\x0c34 Op. O.L.C. 239 (2010)\n\nAdmittedly, the remaining three rights (set out in sections 3771(a)(1),\n(5) and (8)) would not necessarily have to be limited to the period after\nthe initiation of a criminal proceeding. Nevertheless, in our view, the\nCVRA is best read to contemplate judicial enforcement of these rights\nonly once the government has initiated a federal criminal proceeding.\nWe turn first to the \xe2\x80\x9cright to be reasonably protected from the accused.\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 3771(a)(1). Section 3771(a)(1)\xe2\x80\x99s use of the term \xe2\x80\x9cthe accused\xe2\x80\x9d appears to contemplate that the government has already initiated\ncriminal proceedings. \xe2\x80\x9cThe accused\xe2\x80\x9d is a legal term of art that means a\nperson who has been formally charged with a crime. See Black\xe2\x80\x99s Law\nDictionary 25 (9th ed. 2009) (\xe2\x80\x9cA person who has been arrested and\nbrought before a magistrate or who has been formally charged with a\ncrime . . . . A person against whom legal proceedings have been initiated.\xe2\x80\x9d); see also Michigan v. Jackson, 475 U.S. 625, 632 (1986) (\xe2\x80\x9c[A]fter a\nformal accusation has been made . . . a person who had previously been\njust a \xe2\x80\x98suspect\xe2\x80\x99 has become an \xe2\x80\x98accused\xe2\x80\x99 within the meaning of the Sixth\nAmendment[.]\xe2\x80\x9d). The single CVRA decision of which we are aware to\naddress this issue on the merits adopts just such a reading of \xe2\x80\x9caccused,\xe2\x80\x9d\nfinding the right to reasonable protection afforded in section 3771(a)(1) of\nthe Act to be applicable only in the context of an ongoing criminal proceeding. See United States v. Rubin, 558 F. Supp. 2d 411, 420 (E.D.N.Y.\n2008) (\xe2\x80\x9c\xe2\x80\x98[A]ccused\xe2\x80\x99 must mean accused by criminal complaint, information or indictment of conduct victimizing the complainant. The right\n. . . to be \xe2\x80\x98reasonably protected from the accused\xe2\x80\x99 cannot have ripened\nbefore the earliest of one of these happenings.\xe2\x80\x9d).\nThe context in which Congress enacted the CVRA provides an additional reason to adopt this understanding of its right to protection from\nthe accused. Congress enacted section 3771(a)(1) against the backdrop of\na pre-existing requirement in section 503 of the VRRA that, during the\ninvestigation of a crime, designated \xe2\x80\x9cresponsible officials\xe2\x80\x9d at any agency\n\xe2\x80\x9cengaged in the detection, investigation or prosecution of crime,\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 10607(a), shall, \xe2\x80\x9c[a]t the earliest opportunity after the detection\nof a crime,\xe2\x80\x9d id. \xc2\xa7 10607(b), \xe2\x80\x9carrange for a victim to receive reasonable\nprotection from a suspected offender,\xe2\x80\x9d id. \xc2\xa7 10607(c)(2) (emphasis added). This requirement remains in force and, by its terms, can apply before\nthe filing of criminal charges. The contrast between VRRA\xe2\x80\x99s continuing\nrequirement that the government provide victims with reasonable protec248\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\ntion from a \xe2\x80\x9csuspected offender\xe2\x80\x9d and the CVRA\xe2\x80\x99s \xe2\x80\x9cright to be reasonably\nprotected from the accused,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3771(a)(1), strengthens our\nconclusion that Congress elected in the CVRA to guarantee crime victims\na judicially enforceable right to protection only after a formal accusation\nby the government, i.e., after the initiation of criminal proceedings. This\nis particularly so given that the right to protection in the CVRA replaced a\nsimilar right \xe2\x80\x9cto be reasonably protected from the accused offender,\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 10606(b)(2) (emphasis added), previously provided in section\n502 of the VRRA. Indeed, reading a victim\xe2\x80\x99s entitlement to protection\nunder section 10607(c)(2) and under section 3771(a)(1) as coterminous\nwould fail to give meaning to Congress\xe2\x80\x99s deliberate choice to use different words in two provisions of the same statutory scheme (as well as in\nwhat were originally two parts of the same enactment). See, e.g., Bailey v.\nUnited States, 516 U.S. 137, 145 (1995) (holding that \xe2\x80\x9ca legislature is\npresumed to have used no superfluous words,\xe2\x80\x9d and construing words\n\xe2\x80\x9cuse\xe2\x80\x9d and \xe2\x80\x9ccarry\xe2\x80\x9d in the same statutory scheme as having separate and\nnon-overlapping meanings) (quoting Platt v. Union Pac. R.R. Co., 99 U.S.\n(9 Otto) 48, 58 (1878)). 7\nIn a law review article published shortly after passage of the CVRA, one of the Act\xe2\x80\x99s\nsponsors suggested that the CVRA\xe2\x80\x99s right to be \xe2\x80\x9creasonably protected from the accused\xe2\x80\x9d\nmight apply \xe2\x80\x9cwithout regard to the existence of legal proceedings,\xe2\x80\x9d which could be read\nto include before a complaint has been filed. Jon Kyl, Steven J. Twist & Stephen Higgins,\nOn the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston,\nLouarna Gillis, and Nila Lynn Crime Victims\xe2\x80\x99 Rights Act, 9 Lewis & Clark L. Rev. 581,\n594 (2005). For the reasons outlined above, we think this is not what Congress intended\nwith respect to the CVRA\xe2\x80\x99s judicially enforceable right to protection (as opposed, perhaps, to the protective \xe2\x80\x9cservices\xe2\x80\x9d that section 503(c)(2) of the VRRA obligates the\ngovernment to provide). If this right were read to apply before the filing of charges, the\nCVRA would empower private citizens to go into court, in the absence of any pending\ncharges, and seek a court order for protection, which would require a judicial determination whether the requisite elements, including the existence of a federal offense, are\npresent, without regard for any impact on governmental resources or on pending and\npotentially confidential investigations. As we discuss more fully below, such a reading\nwould be in tension with the long tradition of executive discretion to initiate criminal\nproceedings, and with section 3771(d)(6) of the Act, which directs that the Act not to \xe2\x80\x9cbe\nconstrued to impair the prosecutorial discretion of the Attorney General or any officer\nunder his direction.\xe2\x80\x9d\nThe legislative record suggests that Congress\xe2\x80\x99s principal concern, beyond ensuring\nprotection of victims during the pendency of criminal charges, was protection after a\nconviction to ensure the victim could be heard with respect to a determination regarding\n7\n\n249\n\n\x0c34 Op. O.L.C. 239 (2010)\n\nSimilarly, the wording of the CVRA\xe2\x80\x99s \xe2\x80\x9creasonable right to confer with\nthe attorney for the Government in the case,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3771(a)(5),\nsuggests that the right is intended to apply only once the government has\ninitiated criminal proceedings. The phrase \xe2\x80\x9cin the case\xe2\x80\x9d implies the pendency of a judicial proceeding. See Chavez v. Martinez, 538 U.S. 760, 766\n(2003) (\xe2\x80\x9ca \xe2\x80\x98criminal case\xe2\x80\x99 at the very least requires the initiation of legal\nproceedings\xe2\x80\x9d); Black\xe2\x80\x99s Law Dictionary 243 (defining \xe2\x80\x9ccase\xe2\x80\x9d as a \xe2\x80\x9ccivil or\ncriminal proceeding, action, suit or controversy at law or in equity\xe2\x80\x9d);\nBlyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1871) (\xe2\x80\x9cThe words\n\xe2\x80\x98case\xe2\x80\x99 and \xe2\x80\x98cause\xe2\x80\x99 are constantly used as synonyms in statutes and judicial\ndecisions, each meaning a proceeding in court, a suit, or action.\xe2\x80\x9d); cf.\nPhar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d 1228, 1233 (3d Cir. 1994)\n(a \xe2\x80\x9ccase\xe2\x80\x9d within the meaning of 11 U.S.C. \xc2\xa7 1109(b) \xe2\x80\x9cis commenced by\nthe filing of a petition under the Bankruptcy Code\xe2\x80\x9d). Congress\xe2\x80\x99s use of\nthe definite article \xe2\x80\x9cthe\xe2\x80\x9d in reference to the word \xe2\x80\x9ccase\xe2\x80\x9d also supports the\nview that \xe2\x80\x9cthe case\xe2\x80\x9d implies a specific adversary proceeding rather than\nan indefinite ongoing investigation. Cf. Rumsfeld v. Padilla, 542 U.S. 426,\n434\xe2\x80\x9335 (2004) (interpreting use of the definite article \xe2\x80\x9cthe person\xe2\x80\x9d in a\nprovision regarding a habeas corpus custodian to signify that there is\nusually only one proper custodian, and not several different ones).\nThat the right to confer is with \xe2\x80\x9cthe attorney\xe2\x80\x9d for the government in the\ncase reinforces the conclusion that the right to confer is tied to the existence of a criminal proceeding in which a government attorney plays a lead\nrole. Of course, attorneys for the government may sometimes play a role\nduring an investigation, particularly once a matter is being presented to a\ngrand jury, 8 but typically most investigative work is done by federal\nparole or early release of a convicted offender. A colloquy between two original sponsors\nof the bill reflects this concern:\nMs. Feinstein: One final point. Throughout this act, reference is made to the \xe2\x80\x9caccused.\xe2\x80\x9d Would the Senator also agree that it is our intention to use this word in the\nbroadest sense to include both those charged and convicted so that the rights we establish apply throughout the criminal justice system?\nMr. Kyl: Yes . . . .\n150 Cong. Rec. 7304 (2004) (colloquy of Sens. Feinstein and Kyl) (emphasis added).\n8 Strictly speaking, the grand jury foreperson, not an attorney for the government, is\n\xe2\x80\x9cin charge\xe2\x80\x9d of proceedings before a grand jury. Fed. R. Crim. P. 6(c). Furthermore, such\nproceedings are confidential as a matter of law, Fed. R. Crim. P. 6(e), and the CVRA\xe2\x80\x99s\n\n250\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\nagents. If the right to confer were meant to apply during investigations, it\nis not clear why Congress would have limited the responsibility to confer\nwith a crime victim to the attorney for the government, particularly since\nthere may be many open investigations where no attorney has been assigned. Congress understood how to assign responsibilities in connection\nwith protecting victims\xe2\x80\x99 rights to officials involved in the criminal justice\nprocess who were not attorneys, including responsibilities that take effect\nbefore the filing of any criminal charges, as it did in the VRRA when it\nspecifically required designated \xe2\x80\x9cresponsible officials\xe2\x80\x9d at all agencies\n\xe2\x80\x9cengaged in the detection, investigation or prosecution of crime,\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 10607(a), to provide the specified services, including, for example, a duty to ensure that victims receive \xe2\x80\x9cthe earliest possible notice of\xe2\x80\x94\nthe status of the investigation of the crime,\xe2\x80\x9d id. \xc2\xa7 10607(c)(3)(A). By\ncontrast, limiting the responsibility to confer to a single government\nattorney would make sense if the right to confer relates to issues that arise\nin the course of a criminal proceeding, such as potential release, the role\nof the victim as a witness in the course of the prosecution, potential plea\nagreements, sentencing, and restitution efforts, for which the prosecuting\nattorney would be the most natural party to confer with victims.\nThe CVRA\xe2\x80\x99s legislative history further bolsters our conclusion that the\nright to confer arises once a criminal proceeding has been commenced.\nFloor statements by both original sponsors of the Act in the Senate emphasize that the right to confer relates to the conduct of criminal proceedings after the filing of charges. Senator Feinstein explained that\nThe victim of crime, or their counsel, should be able to provide any\ninformation, as well as their opinion, directly to the court concerning\nthe release, plea, or sentencing of the accused. . . . Of course,\nin providing victim information or opinion it is important that the\nvictim be able to confer with the prosecutor concerning a variety of\nmatters and proceedings. . . . This right is intended to be expansive.\nFor example, the victim has the right to confer with the Government\nconcerning any critical stage or disposition of the case.\xe2\x80\x9d\nlegislative history shows that Congress did not intend to permit crime victims to attend\ngrand jury proceedings. See 150 Cong. Rec. 22,951 (2004) (statement of Sen. Kyl) (\xe2\x80\x9cthe\nright is limited to public proceedings, thus grand jury proceedings are excluded from the\nright\xe2\x80\x9d).\n\n251\n\n\x0c34 Op. O.L.C. 239 (2010)\n\n150 Cong. Rec. 7302 (2004) (emphasis added). Similarly, Senator Kyl\nstated that\nThis right to confer does not give the crime victim any right to direct\nthe prosecution. Prosecutors should consider it part of their profession to be available to consult with crime victims about concerns the\nvictims may have which are pertinent to the case, case proceedings\nor dispositions. Under this provision, victims are able to confer with\nthe Government\xe2\x80\x99s attorney about proceedings after charging.\nId. (emphasis added).\nSome have suggested that the right to confer should be understood to\napply to plea negotiations that take place before the filing of charges.\nSee ENRD Memo at 2\xe2\x80\x933. And it is true that a pre-charge negotiated\nplea agreement may reduce a victim\xe2\x80\x99s ability to provide input in a meaningful way regarding the matters addressed in the agreement. Although\nmuch of such pre-charge negotiations may relate to charging decisions\nthat we believe are beyond the ambit of the right to confer, see 18 U.S.C.\n\xc2\xa7 3771(d)(6) (\xe2\x80\x9cNothing in this chapter shall be construed to impair the\nprosecutorial discretion of the Attorney General or any officer under his\ndirection.\xe2\x80\x9d), we recognize that our reading of the CVRA may in certain\ncircumstances reduce the impact of a victim\xe2\x80\x99s participation in subsequent\ncourt proceedings to which the right to confer does apply, see, e.g.,\nFed. R. Crim. P. 11(c)(1)(C) (plea agreement binding on court). Even in\nsuch a case, the CVRA would still ensure that the victim has an opportunity to be heard by the court, and by the government, before the court\naccepts the plea or imposes a sentence, as well as a right to seek mandamus and attempt to have the plea set aside. And, of course, our view of\nwhat the CVRA requires in no way limits the discretion either of individual prosecutors to confer with victims about pre-charge plea negotiations\nor of the Attorney General to direct that prosecutors do so as a matter of\ndepartmental policy. The question before us, though, is not whether it\nwould be advisable as a matter of good practice or departmental policy for\ngovernment attorneys to confer with victims pre-charge when appropriate,\nbut whether Congress created a judicially enforceable right for victims\npursuant to which they may compel prosecutors to do so. Nothing in the\nAct or its legislative history suggests Congress intended such a result.\nAccordingly, we do not believe the CVRA is best read to obligate the\n252\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\ngovernment to confer with victims during such pre-charge negotiations\nwith a criminal suspect. 9\nThe eighth CVRA right is \xe2\x80\x9c[t]he right to be treated with fairness and\nwith respect for the victim\xe2\x80\x99s dignity and privacy.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3771(a)(8).\nUnlike the terms of the other seven CVRA rights, the wording of the right\nto fairness and dignity does not itself indicate that the right applies only\nonce criminal charges have been filed. The concepts of \xe2\x80\x9cfairness,\xe2\x80\x9d \xe2\x80\x9cdignity,\xe2\x80\x9d and \xe2\x80\x9cprivacy\xe2\x80\x9d are certainly implicated directly in judicial proceedings. See, e.g., Nixon v. Warner Commc\xe2\x80\x99ns, Inc. 435 U.S. 589, 602\xe2\x80\x9303,\n608\xe2\x80\x9311 (1978) (addressing tension between privacy and common law\nright of public access to court records). But issues of fairness, privacy,\nand dignity for victims can arise during the course of a criminal investiga9 The Fifth Circuit\xe2\x80\x99s decision in In re Dean, 527 F.3d 391 (5th Cir. 2008), might be\nread to reach a contrary result. Determining the significance of Dean on this question,\nhowever, is complicated both by the unusual circumstances of that particular case and by\nthe fact that the parties did not contest whether the right to confer applied pre-charge. In\nconnection with the underlying criminal matter, shortly before the initiation of criminal\nproceedings against a corporate defendant, the government first filed an ex parte proceeding seeking (and obtaining) a court order restricting notice to victims under the CVRA\nuntil after charges (and a plea agreement) had been filed and unsealed, arguing that this\nmet the \xe2\x80\x9creasonableness\xe2\x80\x9d requirements of 18 U.S.C. \xc2\xa7 3771(a)(5) because of the practical\ndifficulties any pre-charge notice would have entailed. See Dean, 527 F.3d at 395. In\nrejecting this argument, the Fifth Circuit ruled that such an ex parte proceeding was\ncontrary to the provisions of the CVRA and unprecedented as a matter of law. Id. It is\nunclear whether the court\xe2\x80\x99s subsequent criticism of the government\xe2\x80\x99s failure to confer\npre-charge was simply a response to the unusual ex parte filing in the case or reflected a\nbroader view that the CVRA obligates the government to engage in such pre-charge\nreferrals more generally. The court appeared to recognize the unique \xe2\x80\x9cposture of this\ncase,\xe2\x80\x9d and was careful not to \xe2\x80\x9cspeculate on the applicability to other situations.\xe2\x80\x9d Id. at\n394. In any event, the question of whether the right to confer under the CVRA applied at\nall pre-charge (as opposed to the question of the reasonableness of the procedure used in\nthat case) was not contested or briefed in the district court or on appeal. To the extent that\nthe court of appeals in Dean held that the right to confer under the CVRA can be triggered\nduring the initial investigative phase of the case, and that CVRA obligates the government\nas a general matter to confer with crime victims during pre-charge negotiations with\ncriminal suspects regarding a potential plea agreement, we respectfully disagree. A\nnumber of subsequent decisions do not follow Dean on this point. See, e.g., United\nStates. v. Merkosky, No. 1:02cr-0168-01, 2008 WL 1744762, at *2 (N.D. Ohio Apr. 11,\n2008) (victim has rights under the CVRA only once prosecution has begun); Rubin, 558\nF. Supp. 2d at 420 (victims\xe2\x80\x99 rights accrue upon filing of the indictment); see also In re\nAcker, 596 F.3d 370, 373 (6th Cir. 2010) (whether a victim has rights prior to formal\ncharges being filed is \xe2\x80\x9cuncertain\xe2\x80\x9d).\n\n253\n\n\x0c34 Op. O.L.C. 239 (2010)\n\ntion as well. See BP Prods., 2008 WL 501321, at *11 (\xe2\x80\x9cThe right to be\ntreated with fairness and with respect for the victim\xe2\x80\x99s dignity and privacy\nmay apply with great force during an investigation, before any charging\ninstrument has been filed.\xe2\x80\x9d); cf. VRRA, Pub. L. No. 101-647, \xc2\xa7 506(1),\n104 Stat. 4789, 4822 (1990) (\xe2\x80\x9cIt is the sense of Congress that the States\nshould make every effort to adopt the following goals of the Victim of\nCrime Bill of Rights,\xe2\x80\x9d including that \xe2\x80\x9c[v]ictims of crime should be treated\nwith compassion, respect, and dignity throughout the criminal justice\nprocess.\xe2\x80\x9d).\nThis right, however, must be considered in the context of the other\nrights guaranteed by the CVRA. Under the well-known canon of statutory\ninterpretation noscitur a sociis, which means that \xe2\x80\x9cwords and people are\nknown by their companions,\xe2\x80\x9d Gutierrez v. Ada, 528 U.S. 250, 255 (2000),\n\xe2\x80\x9cseveral items in a list shar[ing] an attribute counsels in favor of interpreting the other items as possessing that attribute as well,\xe2\x80\x9d Beecham v.\nUnited States, 511 U.S. 368, 371 (1994). Similarly, here, the range of\napplication of the first seven, more specific rights should be understood to\ninform the scope of the potentially more general right to fairness, dignity,\nand privacy afforded by section 3771(a)(8). Cf. Jarecki v. G.D. Searle &\nCo., 367 U.S. 303, 311\xe2\x80\x9312 (1961) (construing for tax purposes the term\n\xe2\x80\x9cdiscovery\xe2\x80\x9d in the phrase \xe2\x80\x9cexploration, discovery or prospecting\xe2\x80\x9d to be\nlimited to the finding of minerals, as suggested by its association with\nexploration and prospecting, and therefore inapplicable to income from a\npatented item).\nReading the right to be treated with fairness and dignity to apply during\npending criminal proceedings is consistent with the discussion concerning\nthe right in the CVRA\xe2\x80\x99s legislative history. Every example of crime\nvictims experiencing unfairness, indignities, or violations of their privacy\ndiscussed in the legislative history refers to situations occurring after the\nfiling of charges and typically involved a deprivation of one or more of\nthe other rights protected by the Act as well. For instance, the floor debates reflect concern with the fairness and dignity with which crime\nvictims are treated during pending criminal prosecutions. See, e.g., 150\nCong. Rec. 7296\xe2\x80\x9397 (2004) (statement of Sen. Feinstein) (describing\nseveral examples of the failure to notify crime victims of critical hearings\nin criminal cases, as well as other instances where crime victims were\nproblematically excluded from criminal proceedings); id. at 7297 (\xe2\x80\x9cThis is\n254\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\nnot the way criminal justice should be practiced in the United States of\nAmerica. The time has come to give victims of crime the right to participate in the system, the right to notice of a public hearing, the right to be\npresent at that public proceeding, the right to make a statement when\nappropriate, the right to have restitution, if ordered by a judge, the right to\nknow when your assailant or attacker is released from prison, and the\nright to be treated by our prosecutors and by our criminal justice system\nwith respect and dignity.\xe2\x80\x9d); id. at 7298 (statement of Sen. Kyl) (\xe2\x80\x9cFair play\nfor crime victims, meaningful participation . . . in the justice system,\nprotection against a government that would take from a crime victim the\ndignity of due process\xe2\x80\x94these are consistent with the most basic values of\ndue process in our society.\xe2\x80\x9d). 10 These statements and examples suggest\nthat Congress was concerned with ensuring fair treatment for crime victims in the context of pending criminal proceedings, rather than creating a\nright that could be asserted independent of any criminal prosecution. For\nthese reasons, we conclude that the right to fairness, dignity, and privacy\nin section 3771(a)(8) of the Act, like the other seven rights, should be\nunderstood as applying only after the filing of criminal charges against a\ndefendant.\nC.\nIn addition to the nature of the rights provided, the structure and purpose of the Act, as reflected in the mechanisms provided to enforce the\nrights and the Act\xe2\x80\x99s legislative history, also support our conclusion that\nthe rights are guaranteed only once the government has initiated criminal\nproceedings. The mechanisms Congress established in the CVRA to\nensure that crime victims are afforded their rights, including by providing\ncrime victims standing to assert the rights directly, all relate to pending\ncriminal proceedings. Three provisions of the Act ensure that crime\nvictims are provided their rights or have standing to assert them. First,\n10 In the more extensive legislative history for S.J. Res. 1, 108th Cong. (2003) (the\nproposed constitutional amendment for which the CVRA emerged as a statutory substitute), the numerous examples of alleged affronts to fairness, dignity, and privacy suffered\nby crime victims again uniformly arise from the conduct of criminal proceedings and\nrelate to perceived failures by courts to allow a crime victim to participate meaningfully\nin those proceedings against the alleged victimizer. See generally S. Rep. No. 108-191, at\n19\xe2\x80\x9320, 25, 28 (2003).\n\n255\n\n\x0c34 Op. O.L.C. 239 (2010)\n\nunder the heading \xe2\x80\x9cRights Afforded,\xe2\x80\x9d the CVRA provides expressly that\n\xe2\x80\x9c[i]n any court proceeding involving an offense against a crime victim,\nthe court shall ensure that the crime victim is afforded the rights described\nin subsection (a).\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3771(b)(1). This provision explicitly empowers\xe2\x80\x94and, indeed, requires\xe2\x80\x94the courts to afford the CVRA rights\nduring pending criminal proceedings. Second, the Act explicitly provides\ncrime victims the right to participate in a pending criminal proceeding\nwithout intervening or becoming a party to the litigation by filing a motion on their own behalf. Id. \xc2\xa7 3771(d)(3) (providing crime victims standing to assert their rights under the Act by motion). Third, the Act provides\nthat crime victims are entitled to seek relief by writ of mandamus from the\ncourt of appeals if the district court denies the relief sought by motion in a\npending criminal proceeding. Id. (\xe2\x80\x9cIf the district court denies the relief\nsought, the movant may petition the court of appeals for a writ of mandamus.\xe2\x80\x9d). 11 By contrast, the CVRA includes no provision for crime victims\nto initiate independent judicial proceedings by any mechanism, whether\nby private complaint or petition or otherwise, to enforce these rights.\nTaken together, the enforcement mechanisms provided by the CVRA\nappear to be designed to ensure that crime victims would have legal\nstanding to be heard in the context of ongoing criminal proceedings\nagainst defendants who have been accused by the government of a federal\noffense.\nThe CVRA\xe2\x80\x99s legislative history likewise underscores more generally\nthat protecting the ability of crime victims to participate in pending criminal proceedings was the primary purpose underlying the Act. Much of the\nimpetus for enactment of the CVRA arose after the Tenth Circuit issued\na decision in United States v. McVeigh, the prosecution of Timothy\nMcVeigh, the bomber of the federal building in Oklahoma City, limiting\nthe ability of victims to enforce in court their rights under the VRRA. 12\n11 The Act also assigns \xe2\x80\x9c[t]he prosecutor\xe2\x80\x9d the responsibility to advise crime victims\nthat they \xe2\x80\x9ccan seek the advice of an attorney\xe2\x80\x9d with respect to their CVRA rights. 18\nU.S.C. \xc2\xa7 3771(c)(2) (emphasis added).\n12 See, e.g., 150 Cong. Rec. 7295 (2004) (statement of Sen. Feinstein) (\xe2\x80\x9cNowhere was\nthe need for this legislation made more clear than during the trials over the Oklahoma\nCity bombing.\xe2\x80\x9d); see also id. at 22,953 (statement of Sen. Kyl) (\xe2\x80\x9cThis legislation is meant\nto ensure that cases like the McVeigh case, where victims of the Oklahoma City bombing\nwere effectively denied the right to attend the trial and to avoid federal appeals courts\n\n256\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\nThe district judge ordered the sequestration of crime victims from the trial\nin anticipation of hearing victim-impact statements at sentencing. The\nvictims and their families sought mandamus review in the Tenth Circuit,\nrelying, inter alia, on the language in section 502(b)(4) of the VRRA,\ngranting them a \xe2\x80\x9cright to be present at all public court proceedings related\nto the offense.\xe2\x80\x9d 106 F.3d 325, 328\xe2\x80\x9329 (10th Cir. 1997). The Tenth Circuit\ndenied the mandamus petition, holding that crime victims lacked standing\nto enforce their rights under the VRRA in court. 13 Id. at 335 (declaring\nVRRA enforceable only through the \xe2\x80\x9cbest efforts\xe2\x80\x9d of the government);\nsee also Memorandum for Kathryn Turman, Acting Director, Office for\nVictims of Crime, from William Michael Treanor, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: Effect of 42 U.S.C. Section 10607 on Proposed Revisions to the Attorney General\xe2\x80\x99s Guidelines\nfor Victim and Witness Assistance at 4 (Jan. 15, 1999) (VRRA\xe2\x80\x99s \xe2\x80\x9cbest\nefforts\xe2\x80\x9d obligation does not create judicially enforceable rights). The\nlegislative record is replete with statements reflecting Congress\xe2\x80\x99s particular concern with ensuring that crime victims would have standing to\nparticipate in ongoing criminal proceedings. CVRA supporters repeatedly\nexpressed concern regarding the failures of the judicial system to account\nsufficiently for victims\xe2\x80\x99 interests and emphasized the need to give crime\nvictims the opportunity to participate in such proceedings through judifrom determining, as the Tenth Circuit Court of Appeals did, that victims had no standing\nto seek review of their right to attend the trial under the former victims\xe2\x80\x99 law that this bill\nreplaces.\xe2\x80\x9d).\n13 Although the Tenth Circuit\xe2\x80\x99s ruling in McVeigh figures most prominently in the\nCVRA\xe2\x80\x99s legislative history, Congress was also troubled generally by courts denying\nvictims standing with respect to restitution orders under the VWPA. See S. Rep. No. 108191, at 13 (2003) (\xe2\x80\x9cIn those rare cases when [victims seek restitution] they face a daunting array of obstacles, including barriers to their even obtaining \xe2\x80\x98standing\xe2\x80\x99 to be heard to\nraise their claims.\xe2\x80\x9d). Prior to the CVRA, courts generally denied victims standing to be\nheard in VWPA cases. See, e.g., United States v. Johnson, 983 F.2d 216, 221 (11th Cir.\n1993) (crime victim lacks standing under VWPA to challenge denial of restitution order);\nUnited States v. Kelley, 997 F.2d 806, 808 (10th Cir. 1993) (same). These cases rested in\npart on a series of Supreme Court decisions denying standing to crime victims more\ngenerally. See, e.g., Leeke v. Timmerman, 454 U.S. 83, 86\xe2\x80\x9387 (1981) (because decision to\nprosecute is solely within discretion of prosecutor, private citizen has no judicially\ncognizable right to challenge how prosecutor goes about making decision to prosecute);\nLinda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (\xe2\x80\x9ca private citizen lacks a judicially\ncognizable interest in the prosecution or non-prosecution of another\xe2\x80\x9d).\n\n257\n\n\x0c34 Op. O.L.C. 239 (2010)\n\ncially enforceable rights. 14 By contrast, the legislative history contains no\ndiscussion of the possibility of crime victims bringing independent proceedings to enforce their rights rather than enforcing them in the context\nof existing, pending criminal proceedings.\nD.\nParticularly given the support for our reading in the text of the Act and\nits legislative history, we are not persuaded by two arguments that have\nbeen presented in support of the view that the rights afforded in the Act\nwere meant to apply in some circumstances before the filing of a criminal\ncomplaint.\nPerhaps the most significant argument that the rights guaranteed by the\nCVRA may apply before the pendency of criminal proceedings comes\nfrom the venue provision, which provides that the \xe2\x80\x9crights described in\nsubsection (a) shall be asserted in the district court in which a defendant\nis being prosecuted for the crime or, if no prosecution is underway, in\nthe district court in the district in which the crime occurred.\xe2\x80\x9d 18 U.S.C.\n\xc2\xa7 3771(d)(3) (emphasis added). The phrase \xe2\x80\x9cif no prosecution is underway,\xe2\x80\x9d understood colloquially, might be thought to envisage the possibility that some CVRA rights may be asserted before the pendency of criminal proceedings against a particular defendant. But \xe2\x80\x9cprosecution\xe2\x80\x9d is also a\nlegal term of art used to refer to the levying of formal charges, and not\nmerely the issuance of a warrant upon the filing of a complaint, and we\nthink the venue provision should be read in light of this understanding,\n14 The legislative history reflects a clear concern with a failure to provide crime victims with a meaningful opportunity to participate in criminal proceedings, and consequently the need to create express enforcement mechanisms for the rights. See, e.g., H.R.\nRep. No. 108-711, at 2, reprinted in 2004 U.S.C.C.A.N. 2274, 2276 (\xe2\x80\x9cVictims of crime\noften do not feel their voices are heard or that their concerns are adequately addressed in\nthe judicial process. . . . This legislation addresses these concerns by codifying the rights\nof victims and providing the means to enforce those rights.\xe2\x80\x9d); 150 Cong. Rec. 7296\n(2004) (statement of Sen. Feinstein) (\xe2\x80\x9cIn case after case we found victims, and their\nfamilies, were ignored, cast aside, and treated as non-participants in a critical event in\ntheir lives. They were kept in the dark by prosecutors to [sic] busy to care enough, by\njudges focused on defendant\xe2\x80\x99s rights, and by a court system that simply did not have a\nplace for them.\xe2\x80\x9d); id. at 7297 (\xe2\x80\x9cThe time has come to give victims of crime the right to\nparticipate in the system[.]\xe2\x80\x9d); id. at 7298 (statement of Sen. Kyl) (describing the Act as\nproviding crime victims \xe2\x80\x9cmeaningful participation . . . in the justice system\xe2\x80\x9d).\n\n258\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\nparticularly when considered in the context of the other aspects of the Act\ndiscussed above. For instance, Rule 7 of the Federal Rules of Criminal\nProcedure requires that a felony \xe2\x80\x9cbe prosecuted by indictment,\xe2\x80\x9d and\ntherefore any prosecution of a felony must commence with the return of\nan indictment by a grand jury, Fed. R. Crim. P. 7(a)(1) (or, if the defendant waives his right to indictment, the filing of an information by the\ngovernment, Fed. R. Crim. P. 7(b)). Cf. United States v. Alvarado, 440\nF.3d 191, 200 (4th Cir. 2006) (stating that, for Sixth Amendment purposes, \xe2\x80\x9c[t]he filing of a federal criminal complaint does not commence a\nformal prosecution\xe2\x80\x9d). 15\nAs a result, a \xe2\x80\x9cprosecution\xe2\x80\x9d does not necessarily commence simply\nbecause criminal proceedings have been initiated by the filing of a\ncomplaint, although an initial appearance must be held \xe2\x80\x9cwithout unnecessary delay\xe2\x80\x9d after a defendant is arrested on a warrant. Fed. R. Crim. P.\n5(a)(1)(A) (providing for initial appearance of a person arrested pursuant to a warrant). At such an initial appearance the magistrate judge\ninforms the defendant of his rights, affords him a reasonable opportunity\nto consult with counsel, and makes an initial determination with respect\nto the defendant\xe2\x80\x99s continued detention. Fed. R. Crim. P. 5(d). Consequently, even before a \xe2\x80\x9cprosecution\xe2\x80\x9d is \xe2\x80\x9cunderway,\xe2\x80\x9d important rights\nsecured by the CVRA may be at stake, including the right of crime victims to be heard with respect to the possible release of the defendant.\nSee 18 U.S.C. \xc2\xa7 3771(a)(1), (2), (4). 16 Accordingly, we believe the venue\n15 See also Kirby v. Illinois, 406 U.S. 682, 688\xe2\x80\x9390 (1972) (for purposes of Sixth\nAmendment right to counsel, \xe2\x80\x9ccriminal prosecution\xe2\x80\x9d does not commence with filing of\ncomplaint and issuance of arrest warrant); United States v. Pace, 833 F.2d 1307, 1312\n(9th Cir. 1987) (filing of complaint and issuance of arrest warrant do not commence\ncriminal prosecution for Sixth Amendment purposes, but rather, based on Fed. R.\nCrim. P. 7, \xe2\x80\x9cprosecution commenced when the indictment was handed down\xe2\x80\x9d). But see\nHanrahan v. United States, 348 F.2d 363, 366 n.6 (D.C. Cir. 1965) (\xe2\x80\x9cIn some cases the\nformal prosecution may begin with the indictment or information. But in others, the\nprosecution may begin with the filing of a complaint.\xe2\x80\x9d).\n16 Moreover, when a defendant is arrested outside of the district where the crime occurred, such initial proceedings may not occur in the district where the crime occurred.\nOn this reading, the Act\xe2\x80\x99s direction that the victim seek relief \xe2\x80\x9cin the district court in the\ndistrict in which the crime occurred,\xe2\x80\x9d 18 U.S.C. \xc2\xa7 3771(d)(3), would apply during such a\nperiod and would sensibly direct the crime victim to the court where the prosecution\nmost likely would ultimately occur, in conformity with Fed. R. Crim. P. 18 (\xe2\x80\x9cthe government must prosecute an offense in a district where the offense was committed\xe2\x80\x9d).\n\n259\n\n\x0c34 Op. O.L.C. 239 (2010)\n\nprovision\xe2\x80\x99s reference to the period when a prosecution is not underway is\nbest read as applying to the period of time between the filing of a complaint and the initiation of formal charges. 17\nSimilarly, in our view, section 3771(c)(1) of the Act\xe2\x80\x94which requires\nthose involved in the \xe2\x80\x9cdetection, investigation or prosecution of crime [to]\nmake their best efforts to see that crime victims are notified of, and accorded, [their CVRA rights]\xe2\x80\x9d\xe2\x80\x94 does not indicate that the CVRA rights\napply before the government initiates criminal proceedings. As we noted\nin our 2005 informal advice, these references to detection and investigation tell us about which federal officials have obligations to ensure the\nprotection of victims\xe2\x80\x99 rights, not when those rights arise. For example, the\nrole of field agents, that is, those centrally responsible for the detection\nand investigation of crime, does not stop with the filing of criminal charges. Rather, agents and detectives play an ongoing role throughout the\nprosecution of a case, including continued investigative efforts and interactions with victims, and, where necessary, assisting in providing protection to victims and witnesses. In particular, agents often develop a relationship of trust with crime victims during the investigation that continues\nas they assist crime victims in negotiating active criminal proceedings.\nGiven this continuing active role that agents typically play during criminal prosecutions, we find the fact that the CVRA assigns responsibility to\nthem, together with the attorney for the government, to notify crime\nvictims of and accord them their rights under the CVRA to be entirely\nconsistent with our conclusion that those rights arise only once the government has initiated criminal proceedings.\nFinally, we would note that a contrary view would be in some tension\nwith the CVRA\xe2\x80\x99s express disavowal of permitting any interference with\nour country\xe2\x80\x99s long-standing tradition of governmental control of prosecutions. 18 See 18 U.S.C. \xc2\xa7 3771(d)(6) (\xe2\x80\x9cNothing in this chapter shall be\n17 Given that we read this provision as consistent with our conclusion regarding when\nCVRA rights become available, we do not reach the question of whether other periods of\ntime (such as after judgment has been entered and a prosecution is no longer underway)\nmay also satisfy the venue provision of the Act.\n18 The principle that the authority to charge criminal offenses is reserved to attorneys\nfor the government has deep roots that go back to the founding of our government under\nthe Constitution. See, e.g., Judiciary Act of 1789, ch. 20, \xc2\xa7 35, 1 Stat. 73, 92 (establishing\noffice of United States District Attorney with the exclusive power to prosecute \xe2\x80\x9call\n\n260\n\n\x0cAvailability of Rights Under the Crime Victims\xe2\x80\x99 Rights Act of 2004\n\nconstrued to impair the prosecutorial discretion of the Attorney General or\nany officer under his direction.\xe2\x80\x9d). Reading the CVRA to empower private\nindividuals to initiate proceedings in court making allegations that a\nfederal offense occurred prior to the filing of any criminal charges by the\ngovernment would, at a minimum, create substantial tension with this\ntradition. Courts would be required to adjudicate, at a private party\xe2\x80\x99s\ninstigation, the factual questions necessary to conclude that an asserted\nCVRA right should be enforced, including the existence of a federal\noffense. Such a court proceeding while the government\xe2\x80\x99s investigation of\nthe crime remains underway, and in the absence of any conclusion by the\ngovernment that federal charges are warranted, would place substantial\npressure on the government\xe2\x80\x99s prosecutorial charging decisions and may\neven risk, in some circumstances, impairing the government\xe2\x80\x99s ability to\nbuild a viable case. This risk may be particularly apparent in large-scale\ncases where the government often relies in part on the assistance of cooperating defendants and depends upon maintaining the secrecy of the\nongoing investigation. The legislative history does not suggest that Congress intended such an outcome. To the contrary, both section 3771(d)(6)\nand the legislative record as a whole suggest that Congress did not intend\nto impinge upon prosecutorial independence, but rather to ensure that\nonce criminal proceedings are initiated, crime victims have rights to be\nheard and treated fairly in the process, and standing to enforce those\nrights.\nE.\nFor these same reasons, we also conclude that rights under the CVRA\ncease to be guaranteed if all charges in the case are dismissed either\nvoluntarily or on the merits once the dismissal becomes final and the\ncriminal proceedings have ended (or if the government declines to bring\ndelinquents for crimes and offenses, cognizable under the authority of the United States\xe2\x80\x9d);\nsee also Respect Due to Consuls, 1 Op. Att\xe2\x80\x99y Gen. 41, 43 (1794) (\xe2\x80\x9cit will be the duty of\nthe district attorney to reduce the presentment into form, and the point in controversy will\nthus be put in a train for judicial determination\xe2\x80\x9d); Heckler v. Chaney, 470 U.S. 821, 832\n(1985) (\xe2\x80\x9c[t]he decision of a prosecutor in the Executive Branch not to indict . . . has long\nbeen regarded as the special province of the Executive Branch, inasmuch as it is the\nExecutive who is charged by the Constitution to \xe2\x80\x9ctake Care that the Laws be faithfully\nexecuted\xe2\x80\x9d) (citing U.S. Const. art. II, \xc2\xa7 3).\n\n261\n\n\x0c34 Op. O.L.C. 239 (2010)\n\nformal charges after the filing of a complaint). As we have explained, the\nCVRA\xe2\x80\x99s guarantees are premised on the existence of an accused against\nwhom the government has initiated criminal proceedings with respect to a\nparticular offense or offenses. Ensuring that victims\xe2\x80\x99 interests are protected during the course of those proceedings is the CVRA\xe2\x80\x99s core purpose. In\nthe absence of a proceeding against a particular accused that animates the\nCVRA\xe2\x80\x99s guarantees, the rights guaranteed by the Act would not apply.\nFor these reasons, we conclude that rights of crime victims under the\nCrime Victims\xe2\x80\x99 Rights Act are not guaranteed until criminal proceedings\nare initiated by the filing of a criminal complaint or information, or by the\nreturn of an indictment, and cease to be guaranteed if all charges in the\ncase are declined or dismissed either voluntarily or on the merits.\nJOHN E. BIES\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n262\n\n\x0c'