Availability of Rights Under the Crime Victims' Rights Act of 2004 ( 2010 )

Availability of Rights Under the
Crime Victims’ Rights Act of 2004
The rights provided by the Crime Victims’ Rights Act are guaranteed from the time that
criminal proceedings are initiated (by complaint, information, or indictment) and cease
to be available if all charges are dismissed either voluntarily or on the merits (or if the
government declines to bring formal charges after the filing of a complaint).
December 17, 2010
MEMORANDUM OPINION FOR THE
ACTING DEPUTY ATTORNEY GENERAL
The Crime Victims’ Rights Act (“CVRA”), enacted as section 102 of
the Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260,
2261–64 (codified at 18 U.S.C. § 3771 (2006 & Supp. III 2009)), guaran-
tees victims of federal (and District of Columbia) crimes eight rights.
See 18 U.S.C. § 3771(a). In connection with an effort to update the Attor-
ney General’s Guidelines for Victims and Witness Assistance, you have
asked whether some or all of these rights must be made available to crime
victims before the United States files charges and whether the rights no
longer apply once the relevant charges are declined, dropped, or dis-
missed.
In 2005, this Office conducted a preliminary review of these questions
and concluded that a person’s status as a qualifying crime victim under
the Act could reasonably be understood to commence upon the filing of a
criminal complaint, and could reasonably be understood to cease if the
relevant charges are declined, dropped, or dismissed. See E-mail for
Rachel Brand et al., Office of Legal Policy, from Luke Sobota, Office of
Legal Counsel (Apr. 1, 2005). That informal guidance did not foreclose
the possibility that other readings of the CVRA might also be reasonable.
We observed, however, that the statutory definition of “crime victim,” the
nature of the rights provided under the Act, and the CVRA’s legislative
history all suggested that the rights guaranteed by the CVRA were limited
in their applicability to pending criminal proceedings. Having carefully
considered written submissions by components of the Department as well
as other federal law enforcement agencies, and for the reasons outlined
below, we now conclude, consistent with our 2005 guidance, that the
CVRA is best read as providing that the rights identified in section
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34 Op. O.L.C. 239 (2010)
3771(a) are guaranteed from the time that criminal proceedings are initi-
ated (by complaint, information, or indictment) and cease to be available
if all charges are dismissed either voluntarily or on the merits (or if the
government declines to bring formal charges after the filing of a com-
plaint). 1
The questions we address are limited to issues of statutory obligation
under the CVRA. We express no opinion as to whether any of the rights
identified in 18 U.S.C. § 3771(a) should be provided prior to the filing of
a complaint (or after the dismissal of charges) as a matter of good prac-
1 See Memorandum for John E. Bies, Deputy Assistant Attorney General, Office of
Legal Counsel, from Christine A. Varney, Assistant Attorney General, Antitrust Division
(Sept. 27, 2010); E-mail for John Bies, Deputy Assistant Attorney General, Office of
Legal Counsel, from Karen Stevens, Acting Chief, Policy and Strategy Section, Civil
Rights Division (Oct. 4, 2010, 9:06 PM); Memorandum for John E. Bies, Deputy Assis-
tant Attorney General, Office of Legal Counsel, from Eugene Thirolf, Director, Office of
Consumer Litigation, Civil Division (Sept. 24, 2010); Memorandum for John E. Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from Patty M. Stemler,
Chief, Appellate Section, Criminal Division (Sept. 30, 2010); Memorandum for Jonathan
Cedarbaum, Acting Assistant Attorney General, Office of Legal Counsel, from Ignacia S.
Moreno, Assistant Attorney General, Environment and Natural Resources Division (Sept.
27, 2010) (“ENRD Memo”); Memorandum for John Bies, Deputy Assistant Attorney
General, Office of Legal Counsel, from H. Marshall Jarrett, Director, Executive Office for
United States Attorneys (Sept. 29, 2010); Office of the Assistant Attorney General,
National Security Division, White Paper, The Vesting of Rights Under the Crime Victims
Rights Act (Sept. 29, 2010); Memorandum for John E. Bies, Deputy Assistant Attorney
General, Office of Legal Counsel, from Ronald A. Cimino, Deputy Assistant Attorney
General, Tax Division (Sept. 24, 2010); Memorandum for Jonathan Cedarbaum, Acting
Assistant Attorney General, Office of Legal Counsel, from Christopher H. Schroeder,
Assistant Attorney General, Office of Legal Policy (Sept. 28, 2010); E-mail for John Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from Rafael Madan, Gen-
eral Counsel, Office of Justice Programs (Sept. 29, 2010, 7:23 PM); E-mail for John Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from St. Clair Theodore,
Assistant General Counsel, Federal Bureau of Investigation (Sept. 27, 2010, 2:52 PM);
Memorandum for John E. Bies, Deputy Assistant Attorney General, Office of Legal
Counsel, from Wendy H. Goggin, Chief Counsel, Drug Enforcement Administration
(Oct. 6, 2010); E-mail for John Bies, Deputy Assistant Attorney General, Office of Legal
Counsel, from Audrey J. Anderson, Associate General Counsel, Office of Legal Counsel,
Department of Homeland Security (Sept. 30, 2010, 3:17 PM); E-mail for John Bies,
Deputy Assistant Attorney General, Office of Legal Counsel, from Christopher B. Stern-
er, Deputy Chief Counsel (Operations), Internal Revenue Service, Department of the
Treasury (Sept. 24, 2010, 9:22 AM). We appreciate the thoroughness and thoughtfulness
of these submissions.
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tice, Departmental policy, or pursuant to the provisions of other victim-
related statutes, such as section 503 of the Victims’ Rights and Restitution
Act of 1990, 42 U.S.C. § 10607 (2006). 2
I.
The CVRA defines a “crime victim” in relevant part as “a person di-
rectly and proximately harmed as a result of the commission of a Federal
offense or an offense in the District of Columbia.” 18 U.S.C. § 3771(e).
The Act states that crime victims so defined have 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 pro-
ceeding, unless the court, after receiving clear and convincing evi-
dence, 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 Gov-
ernment in the case.
(6) The right to full and timely restitution as provided by 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.
18 U.S.C. § 3771(a)(1)–(8). The CVRA repealed and replaced section 502
of the Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789,
2 This memorandum addresses only the CVRA. It does not address the application of
other statutes providing for rights, services, or restitution for crime victims, including
when such other statutes apply or who might qualify as a “victim” under them. Likewise,
we were not asked, and intimate no view on, the question of what constitutes the “direct
and proximate harm” necessary to qualify as a “crime victim” under the CVRA for a
given offense, as opposed to the question of when such rights must be provided.
241
34 Op. O.L.C. 239 (2010)
4820 (codified at 42 U.S.C. § 10606 (2000)), which appeared in a portion
of that statute known as the Victims’ Rights and Restitution Act of 1990
(“VRRA”), and which originally provided crime victims with a very
similar list of rights. 3 (Other sections of the VRRA remain in force.)
Having identified these rights, the Act provides several avenues for
their protection: by the courts, by Executive Branch officers, and finally
by providing standing to victims themselves. First, the Act states that
“[i]n any court proceeding involving an offense against a crime victim,
the court shall ensure that the crime victim is afforded [these rights].”
18 U.S.C. § 3771(b)(1). Second, the Act provides that “[o]fficers and
employees of the Department of Justice and other departments and agen-
cies of the United States engaged in the detection, investigation, or pro-
secution of crime” shall “make their best efforts to see that crime victims
are notified of, and accorded, the rights described in subsection (a),” id.
§ 3771(c)(1), and it requires “[t]he prosecutor” to “advise the crime vic-
tim that the crime victim can seek the advice of an attorney with respect
to the rights described in subsection (a),” id. § 3771(c)(2). Third, the Act
authorizes crime victims, or their lawful representatives, as well as “the
attorney for the Government,” id. § 3771(d)(1), to assert CVRA rights by
motion “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
3 The VRRA had read as follows:
(b) Rights of Crime Victims.—A crime victim has the following rights:
(1) The right to be treated with fairness and with respect for the victim’s digni-
ty and privacy.
(2) The right to be reasonably protected from the accused offender.
(3) The right to be notified of court proceedings.
(4) The right to be present at all public court proceedings related to the of-
fense, unless the court determines that testimony by the crime victim would be
materially affected if the victim heard other testimony at trial.
(5) The right to confer with [the] attorney for the Government in the case.
(6) The right to restitution.
(7) The right to information about the conviction, sentencing, imprisonment,
and release of the offender.
42 U.S.C. § 10606(b)(1)–(7) (2000). The rights provided in the VRRA applied to any
victim of crime, defined in section 503 of that Act as “a person that has suffered direct
physical, emotional, or pecuniary harm as a result of the commission of a crime,” 42
U.S.C. § 10607(e)(2) (2006), including a crime under federal, state, or tribal law.
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district in which the crime occurred,” id. § 3771(d)(3). The Act directs the
district court “to take up and decide [such a motion] forthwith.” Id. The
Act provides for expedited mandamus review by the court of appeals of
any decision denying relief, id., and it permits the government (but not the
crime victim) to assert as error on appeal any denial of a crime victim’s
right, id. § 3771(d)(4). The Act provides that a crime victim may seek to
reopen a plea or a sentence in limited circumstances. See id. § 3771(d)(5).
Finally, the Act provides that “[n]othing in this chapter shall be construed
to authorize a cause of action for damages,” id. § 3771(d)(6), and directs
that “[n]othing in this chapter shall be construed to impair the prosecuto-
rial discretion of the Attorney General or any officer under his direction,”
id.
In addition to providing means for judicial enforcement of the rights it
guarantees, the Act directs the Attorney General to “promulgate regula-
tions to enforce the rights of crime victims and to ensure compliance by
responsible officials with the obligations described in law respecting
crime victims.” Id. § 3771(f)(1). These regulations “shall . . . 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,” id. § 3771(f)(2)(A); “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 vic-
tims,” id. § 3771(f)(2)(B); “contain disciplinary sanctions, including
suspension or termination from employment, for employees of the De-
partment of Justice who willfully or wantonly fail to comply with provi-
sions of Federal law pertaining to the treatment of crime victims,” id.
§ 3771(f)(2)(C); and “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,” id. § 3771(f)(2)(D). Pursuant to the Act’s
directive, the Attorney General has promulgated regulations establishing
procedures for crime victims to file complaints regarding the provision of
CVRA rights or other obligations regarding crime victims provided by
law, and to have such complaints adjudicated. See 28 C.F.R. § 45.10
(2010).
243
34 Op. O.L.C. 239 (2010)
II.
While a number of provisions in the CVRA indicate that the rights it
guarantees do not apply until after the initiation of criminal proceedings, a
few provisions could be read to suggest that at least some of the rights are
to be provided before any charges are filed. In our view, the better read-
ing of the Act—considering its text, structure, purpose, and legislative
history—is that the rights provided by the CVRA are guaranteed only
from the time criminal proceedings are initiated through a complaint,
information, or indictment. See, e.g., United Sav. Ass’n of Tex. v. Timbers
of Inwood Forest Assocs. Ltd., 484 U.S. 365, 371 (1988) (“[s]tatutory
construction . . . is a holistic endeavor”). To begin with, there are a num-
ber of textual indications that Congress was focused on providing crime
victims an opportunity to participate in pending criminal proceedings;
these include the use of the term “offense” in the definition of “crime
victim” and the use of a number of terms—e.g., “the accused,” “court
proceedings,” and “in the case”—in the characterizations of several of the
rights in section 3771(a). The nature of the CVRA rights considered as a
whole also reflects a paramount focus on ensuring that crime victims have
standing and an opportunity to be heard in pending criminal proceedings
involving conduct that harmed them. This focus is embodied in the en-
forcement mechanisms provided in the Act, which direct courts to ensure
that crime victims are afforded their CVRA rights to participate in pend-
ing criminal proceedings and empower crime victims to file motions to
enforce these rights directly in such proceedings without intervening or
becoming a party. The judicial enforceability of CVRA rights by victims
themselves distinguishes those rights, in the main, from the rights protect-
ed in other victims’ rights statutes, and counsels a construction of the Act
that clearly defines the availability of the rights. The CVRA’s legislative
history likewise reflects the importance to Congress of ensuring that
crime victims be heard in the judicial process, and that they have standing
to protect their interests in such proceedings. By contrast, there is no
indication in the Act or its legislative history that Congress intended to
empower crime victims to initiate independent court proceedings outside
the context of a pending criminal proceeding to enforce their rights under
the Act, and thereby compel federal courts to adjudicate the existence of a
federal offense absent any formal charging decision by the government, a
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prospect that would be in considerable tension with the Act’s express
disavowal of any intent to “impair . . . prosecutorial discretion.” 18 U.S.C.
§ 3771(d)(6).
A.
An analysis of the rights provided by the CVRA logically begins with
its definition of “crime victim.” Only “crime victims” are entitled to the
rights articulated in 18 U.S.C. § 3771(a), the opening clause of which
states that “[a] crime victim has the following rights.” For the purposes of
the CVRA, a “crime victim” is defined as “a person directly and proxi-
mately harmed as a result of the commission of a Federal offense or an
offense in the District of Columbia.” Id. § 3771(e) (emphasis added). 4 The
CVRA’s definition of “crime victim,” however, does not conclusively
resolve the question of when the rights afforded in section 3771(a) be-
come available. Nevertheless, the definition’s requirement that a crime
victim be harmed as a result of the commission of a federal “offense”
naturally suggests that a person’s status as a “crime victim” can only be
determined after there has been a formal decision to charge a defendant
with a particular federal offense. Under this reading, the earliest that a
“crime victim” under the Act could be identified would be upon the filing
of a criminal complaint—that is, at the earliest point at which there is a
sworn written statement of probable cause to believe that a particular
defendant committed an identified federal offense, see Fed. R. Crim. P. 4,
and hence the first point at which it is possible with any certainty to
identify a “crime victim” directly and proximately harmed by the com-
mission of that offense. As our 2005 informal advice observed, before the
filing of a criminal complaint, it is not clear how one ascertains whether a
particular harm is the result of a “Federal offense” or some other sort of
conduct that does not constitute a “Federal offense.” 5 Consistent with this
4 Hereafter, this memorandum will use “federal offense” to refer to offenses either
under federal law or the laws of the District of Columbia.
5 This reading of the definition of “crime victim” also finds some support in the histo-
ry of the CVRA’s enactment. As noted, the CVRA repealed and replaced section 502 of
the VRRA (codified at 42 U.S.C. § 10606 (2000)), which originally provided victims of
crime with a very similar list of rights, see supra note 3. The VRRA defined “victim”
broadly as “a person that has suffered direct physical, emotional, or pecuniary harm as a
result of the commission of a crime,” 42 U.S.C. § 10607(e)(2) (2006), including the
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34 Op. O.L.C. 239 (2010)
reading, most courts to consider who qualifies as a “crime victim” under
the Act have declined to extend enforceable rights under the CVRA to
alleged victims of conduct that did not lead to criminal proceedings. 6
commission of a crime under federal, state, or tribal law. Rather than adopt this defini-
tion of “crime victim” in the CVRA, Congress relied on a definition that appears to be
taken nearly verbatim from two prior federal victim-oriented statutes that limit rights to
restitution to individuals “directly and proximately harmed” by an “offense.” See 18
U.S.C. § 3663(a)(2) (2006 & Supp. III 2009) (defining “victim” for purposes of the
Victim and Witness Protection Act of 1982 (“VWPA”) as “a person directly and proxi-
mately harmed as a result of the commission of an offense for which restitution may be
ordered”); 18 U.S.C. § 3553A(a)(2) (same for purposes of the Mandatory Victims Restitu-
tion Act). Congress’s apparent decision to adopt the VWPA’s definition of “victim” is
potentially significant insofar as it allows us to look for guidance to decisions interpreting
that statute. See Hughey v. United States, 495 U.S. 411, 422 (1990) (holding that VWPA
authorized restitution only for losses caused by the offense of conviction). Indeed, some
courts have interpreted the CVRA based on the assumption that Congress was aware that
courts had interpreted the VWPA not to apply to uncharged conduct. See, e.g., United
States v. Turner, 367 F. Supp. 2d 319, 326–27 (E.D.N.Y. 2005) (“[T]he full Congress
passed the [CVRA] knowing that similar language in an earlier victims’ rights bill had
been interpreted not to refer to uncharged conduct. . . . Since the [VWPA] and the CVRA
use similar definitions of ‘victim,’ it appears that the same reasoning would exclude
victims of uncharged conduct from the class of those entitled to participatory rights under
the [CVRA].” (footnote omitted)). This comports with how courts have interpreted the
CVRA in the context of restitution claims; in that context they have emphasized the
statutory requirement of “direct and proximate harm” caused by the offense of conviction
to limit the standing of alleged crime victims to assert restitution claims under the CVRA.
See In re Rendon Galvis, 564 F.3d 170, 175–76 (2d Cir. 2009); In re Stewart 552 F.3d
1285, 1288–89 (11th Cir. 2008); In re Antrobus, 519 F.3d 1123, 1125–26 (10th Cir.
2008); United States v. Atlantic States Cast Iron Pipe Co., 612 F. Supp. 2d 453, 545
(D.N.J. 2009); United States v. Sharp, 463 F. Supp. 2d 556, 563–64 (E.D. Va. 2006).
However, insofar as restitution, unlike many of the other rights provided in section
3771(a), necessarily depends on the existence of a predicate conviction, these considera-
tions are only suggestive.
6 See, e.g., Turner, 367 F. Supp. 2d at 326–27 (excluding victims of uncharged con-
duct from the class of those entitled to participatory rights under the Act because “the
offense charged against a defendant can serve as a basis for identifying a ‘crime victim’
as defined in the CVRA”); Searcy v. Paletz, No. 6:07-1389-GRA-WMC, 2007 WL
1875802, at *6 (D.S.C. June 27, 2007) (inmate does not qualify as a “crime victim”
under the CVRA where there has been a prosecutorial decision not to charge another
inmate accused of attacking him); Searcy v. Skinner, No. 6:06-1418-GRA-WMC, 2006
WL 1677177, at *2 (D.S.C. June 16, 2006) (where Government had declined to bring a
prosecution against an inmate accused of attacking plaintiff, he could not use the CVRA
as basis to bring his own action against inmate). But see United States v. BP Prods. N.
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B.
Standing alone, the CVRA’s definition of “crime victim” is not disposi-
tive of the questions you have posed. But when we consider other aspects
of the Act, including the nature of the rights conferred, the enforcement
mechanisms adopted, the general structure and purposes of the Act, and
the Act’s legislative history, they only strengthen the conclusion that the
Act is best understood to confer the rights in section 3771(a) only when a
direct and proximate relationship can be drawn between the victim and an
underlying federal offense with which a defendant has been charged in a
federal criminal proceeding.
To begin with, the rights conferred in 18 U.S.C. § 3771(a), taken to-
gether, appear to contemplate the existence of an ongoing criminal pro-
ceeding initiated by the government. Five of the eight rights articulated
there expressly refer to or necessarily presuppose the existence of a crimi-
nal proceeding. Id. § 3771(a)(2), (3), (4), (6), (7). Three of these reflect
the victim’s right to notification of, access to, and opportunity to be heard
in public court proceedings involving release, plea, sentencing, or parole.
Id. § 3771(a)(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.”); id. § 3771(a)(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.”); id. § 3771(a)(4) (“The right to be
reasonably heard at any public proceeding in the district court involving
release, plea, sentencing, or any parole proceeding.”). Two others, regard-
ing the right to restitution and the right to proceedings free from unrea-
sonable delay, likewise presume the existence of criminal proceedings
against a defendant. Id. § 3771(a)(6) (“The right to full and timely restitu-
tion as provided in law.”); id. § 3771(a)(7) (“The right to proceedings free
from unreasonable delay.”).
Am. Inc., No. H-07-434, 2008 WL 501321, at *11–16 (S.D. Tex. Feb. 21, 2008) (finding
certain CVRA rights to apply pre-charge but construing them narrowly so as not to
interfere with prosecutorial discretion).
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34 Op. O.L.C. 239 (2010)
Admittedly, the remaining three rights (set out in sections 3771(a)(1),
(5) and (8)) would not necessarily have to be limited to the period after
the initiation of a criminal proceeding. Nevertheless, in our view, the
CVRA is best read to contemplate judicial enforcement of these rights
only once the government has initiated a federal criminal proceeding.
We turn first to the “right to be reasonably protected from the accused.”
18 U.S.C. § 3771(a)(1). Section 3771(a)(1)’s use of the term “the ac-
cused” appears to contemplate that the government has already initiated
criminal proceedings. “The accused” is a legal term of art that means a
person who has been formally charged with a crime. See Black’s Law
Dictionary 25 (9th ed. 2009) (“A person who has been arrested and
brought before a magistrate or who has been formally charged with a
crime . . . . A person against whom legal proceedings have been initiat-
ed.”); see also Michigan v. Jackson, 475 U.S. 625, 632 (1986) (“[A]fter a
formal accusation has been made . . . a person who had previously been
just a ‘suspect’ has become an ‘accused’ within the meaning of the Sixth
Amendment[.]”). The single CVRA decision of which we are aware to
address this issue on the merits adopts just such a reading of “accused,”
finding the right to reasonable protection afforded in section 3771(a)(1) of
the Act to be applicable only in the context of an ongoing criminal pro-
ceeding. See United States v. Rubin, 558 F. Supp. 2d 411, 420 (E.D.N.Y.
2008) (“‘[A]ccused’ must mean accused by criminal complaint, infor-
mation or indictment of conduct victimizing the complainant. The right
. . . to be ‘reasonably protected from the accused’ cannot have ripened
before the earliest of one of these happenings.”).
The context in which Congress enacted the CVRA provides an addi-
tional reason to adopt this understanding of its right to protection from
the accused. Congress enacted section 3771(a)(1) against the backdrop of
a pre-existing requirement in section 503 of the VRRA that, during the
investigation of a crime, designated “responsible officials” at any agency
“engaged in the detection, investigation or prosecution of crime,” 42
U.S.C. § 10607(a), shall, “[a]t the earliest opportunity after the detection
of a crime,” id. § 10607(b), “arrange for a victim to receive reasonable
protection from a suspected offender,” id. § 10607(c)(2) (emphasis add-
ed). This requirement remains in force and, by its terms, can apply before
the filing of criminal charges. The contrast between VRRA’s continuing
requirement that the government provide victims with reasonable protec-
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tion from a “suspected offender” and the CVRA’s “right to be reasonably
protected from the accused,” 18 U.S.C. § 3771(a)(1), strengthens our
conclusion that Congress elected in the CVRA to guarantee crime victims
a judicially enforceable right to protection only after a formal accusation
by the government, i.e., after the initiation of criminal proceedings. This
is particularly so given that the right to protection in the CVRA replaced a
similar right “to be reasonably protected from the accused offender,” 42
U.S.C. § 10606(b)(2) (emphasis added), previously provided in section
502 of the VRRA. Indeed, reading a victim’s entitlement to protection
under section 10607(c)(2) and under section 3771(a)(1) as coterminous
would fail to give meaning to Congress’s deliberate choice to use differ-
ent words in two provisions of the same statutory scheme (as well as in
what were originally two parts of the same enactment). See, e.g., Bailey v.
United States, 516 U.S. 137, 145 (1995) (holding that “a legislature is
presumed to have used no superfluous words,” and construing words
“use” and “carry” in the same statutory scheme as having separate and
non-overlapping meanings) (quoting Platt v. Union Pac. R.R. Co., 99 U.S.
(9 Otto) 48, 58 (1878)). 7
7 In a law review article published shortly after passage of the CVRA, one of the Act’s
sponsors suggested that the CVRA’s right to be “reasonably protected from the accused”
might apply “without regard to the existence of legal proceedings,” which could be read
to include before a complaint has been filed. Jon Kyl, Steven J. Twist & Stephen Higgins,
On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston,
Louarna Gillis, and Nila Lynn Crime Victims’ Rights Act, 9 Lewis & Clark L. Rev. 581,
594 (2005). For the reasons outlined above, we think this is not what Congress intended
with respect to the CVRA’s judicially enforceable right to protection (as opposed, per-
haps, to the protective “services” that section 503(c)(2) of the VRRA obligates the
government to provide). If this right were read to apply before the filing of charges, the
CVRA would empower private citizens to go into court, in the absence of any pending
charges, and seek a court order for protection, which would require a judicial determina-
tion whether the requisite elements, including the existence of a federal offense, are
present, without regard for any impact on governmental resources or on pending and
potentially confidential investigations. As we discuss more fully below, such a reading
would be in tension with the long tradition of executive discretion to initiate criminal
proceedings, and with section 3771(d)(6) of the Act, which directs that the Act not to “be
construed to impair the prosecutorial discretion of the Attorney General or any officer
under his direction.”
The legislative record suggests that Congress’s principal concern, beyond ensuring
protection of victims during the pendency of criminal charges, was protection after a
conviction to ensure the victim could be heard with respect to a determination regarding
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34 Op. O.L.C. 239 (2010)
Similarly, the wording of the CVRA’s “reasonable right to confer with
the attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5),
suggests that the right is intended to apply only once the government has
initiated criminal proceedings. The phrase “in the case” implies the pen-
dency of a judicial proceeding. See Chavez v. Martinez, 538 U.S. 760, 766
(2003) (“a ‘criminal case’ at the very least requires the initiation of legal
proceedings”); Black’s Law Dictionary 243 (defining “case” as a “civil or
criminal proceeding, action, suit or controversy at law or in equity”);
Blyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1871) (“The words
‘case’ and ‘cause’ are constantly used as synonyms in statutes and judicial
decisions, each meaning a proceeding in court, a suit, or action.”); cf.
Phar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d 1228, 1233 (3d Cir. 1994)
(a “case” within the meaning of 11 U.S.C. § 1109(b) “is commenced by
the filing of a petition under the Bankruptcy Code”). Congress’s use of
the definite article “the” in reference to the word “case” also supports the
view that “the case” implies a specific adversary proceeding rather than
an indefinite ongoing investigation. Cf. Rumsfeld v. Padilla, 542 U.S. 426,
434–35 (2004) (interpreting use of the definite article “the person” in a
provision regarding a habeas corpus custodian to signify that there is
usually only one proper custodian, and not several different ones).
That the right to confer is with “the attorney” for the government in the
case reinforces the conclusion that the right to confer is tied to the exist-
ence of a criminal proceeding in which a government attorney plays a lead
role. Of course, attorneys for the government may sometimes play a role
during an investigation, particularly once a matter is being presented to a
grand jury, 8 but typically most investigative work is done by federal
parole or early release of a convicted offender. A colloquy between two original sponsors
of the bill reflects this concern:
Ms. Feinstein: One final point. Throughout this act, reference is made to the “ac-
cused.” Would the Senator also agree that it is our intention to use this word in the
broadest sense to include both those charged and convicted so that the rights we es-
tablish apply throughout the criminal justice system?
Mr. Kyl: Yes . . . .
150 Cong. Rec. 7304 (2004) (colloquy of Sens. Feinstein and Kyl) (emphasis added).
8 Strictly speaking, the grand jury foreperson, not an attorney for the government, is
“in charge” of proceedings before a grand jury. Fed. R. Crim. P. 6(c). Furthermore, such
proceedings are confidential as a matter of law, Fed. R. Crim. P. 6(e), and the CVRA’s
250
Availability of Rights Under the Crime Victims’ Rights Act of 2004
agents. If the right to confer were meant to apply during investigations, it
is not clear why Congress would have limited the responsibility to confer
with a crime victim to the attorney for the government, particularly since
there may be many open investigations where no attorney has been as-
signed. Congress understood how to assign responsibilities in connection
with protecting victims’ rights to officials involved in the criminal justice
process who were not attorneys, including responsibilities that take effect
before the filing of any criminal charges, as it did in the VRRA when it
specifically required designated “responsible officials” at all agencies
“engaged in the detection, investigation or prosecution of crime,” 42
U.S.C. § 10607(a), to provide the specified services, including, for exam-
ple, a duty to ensure that victims receive “the earliest possible notice of—
the status of the investigation of the crime,” id. § 10607(c)(3)(A). By
contrast, limiting the responsibility to confer to a single government
attorney would make sense if the right to confer relates to issues that arise
in the course of a criminal proceeding, such as potential release, the role
of the victim as a witness in the course of the prosecution, potential plea
agreements, sentencing, and restitution efforts, for which the prosecuting
attorney would be the most natural party to confer with victims.
The CVRA’s legislative history further bolsters our conclusion that the
right to confer arises once a criminal proceeding has been commenced.
Floor statements by both original sponsors of the Act in the Senate em-
phasize that the right to confer relates to the conduct of criminal proceed-
ings after the filing of charges. Senator Feinstein explained that
The victim of crime, or their counsel, should be able to provide any
information, as well as their opinion, directly to the court concerning
the release, plea, or sentencing of the accused. . . . Of course,
in providing victim information or opinion it is important that the
victim be able to confer with the prosecutor concerning a variety of
matters and proceedings. . . . This right is intended to be expansive.
For example, the victim has the right to confer with the Government
concerning any critical stage or disposition of the case.”
legislative history shows that Congress did not intend to permit crime victims to attend
grand jury proceedings. See 150 Cong. Rec. 22,951 (2004) (statement of Sen. Kyl) (“the
right is limited to public proceedings, thus grand jury proceedings are excluded from the
right”).
251
34 Op. O.L.C. 239 (2010)
150 Cong. Rec. 7302 (2004) (emphasis added). Similarly, Senator Kyl
stated that
This right to confer does not give the crime victim any right to direct
the prosecution. Prosecutors should consider it part of their profes-
sion to be available to consult with crime victims about concerns the
victims may have which are pertinent to the case, case proceedings
or dispositions. Under this provision, victims are able to confer with
the Government’s attorney about proceedings after charging.
Id. (emphasis added).
Some have suggested that the right to confer should be understood to
apply to plea negotiations that take place before the filing of charges.
See ENRD Memo at 2–3. And it is true that a pre-charge negotiated
plea agreement may reduce a victim’s ability to provide input in a mean-
ingful way regarding the matters addressed in the agreement. Although
much of such pre-charge negotiations may relate to charging decisions
that we believe are beyond the ambit of the right to confer, see 18 U.S.C.
§ 3771(d)(6) (“Nothing in this chapter shall be construed to impair the
prosecutorial discretion of the Attorney General or any officer under his
direction.”), we recognize that our reading of the CVRA may in certain
circumstances reduce the impact of a victim’s participation in subsequent
court proceedings to which the right to confer does apply, see, e.g.,
Fed. R. Crim. P. 11(c)(1)(C) (plea agreement binding on court). Even in
such a case, the CVRA would still ensure that the victim has an oppor-
tunity to be heard by the court, and by the government, before the court
accepts the plea or imposes a sentence, as well as a right to seek manda-
mus and attempt to have the plea set aside. And, of course, our view of
what the CVRA requires in no way limits the discretion either of individ-
ual prosecutors to confer with victims about pre-charge plea negotiations
or of the Attorney General to direct that prosecutors do so as a matter of
departmental policy. The question before us, though, is not whether it
would be advisable as a matter of good practice or departmental policy for
government attorneys to confer with victims pre-charge when appropriate,
but whether Congress created a judicially enforceable right for victims
pursuant to which they may compel prosecutors to do so. Nothing in the
Act or its legislative history suggests Congress intended such a result.
Accordingly, we do not believe the CVRA is best read to obligate the
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government to confer with victims during such pre-charge negotiations
with a criminal suspect. 9
The eighth CVRA right is “[t]he right to be treated with fairness and
with respect for the victim’s dignity and privacy.” 18 U.S.C. § 3771(a)(8).
Unlike the terms of the other seven CVRA rights, the wording of the right
to fairness and dignity does not itself indicate that the right applies only
once criminal charges have been filed. The concepts of “fairness,” “digni-
ty,” and “privacy” are certainly implicated directly in judicial proceed-
ings. See, e.g., Nixon v. Warner Commc’ns, Inc. 435 U.S. 589, 602–03,
608–11 (1978) (addressing tension between privacy and common law
right of public access to court records). But issues of fairness, privacy,
and dignity for victims can arise during the course of a criminal investiga-
9 The Fifth Circuit’s decision in In re Dean, 527 F.3d 391 (5th Cir. 2008), might be
read to reach a contrary result. Determining the significance of Dean on this question,
however, is complicated both by the unusual circumstances of that particular case and by
the fact that the parties did not contest whether the right to confer applied pre-charge. In
connection with the underlying criminal matter, shortly before the initiation of criminal
proceedings against a corporate defendant, the government first filed an ex parte proceed-
ing seeking (and obtaining) a court order restricting notice to victims under the CVRA
until after charges (and a plea agreement) had been filed and unsealed, arguing that this
met the “reasonableness” requirements of 18 U.S.C. § 3771(a)(5) because of the practical
difficulties any pre-charge notice would have entailed. See Dean, 527 F.3d at 395. In
rejecting this argument, the Fifth Circuit ruled that such an ex parte proceeding was
contrary to the provisions of the CVRA and unprecedented as a matter of law. Id. It is
unclear whether the court’s subsequent criticism of the government’s failure to confer
pre-charge was simply a response to the unusual ex parte filing in the case or reflected a
broader view that the CVRA obligates the government to engage in such pre-charge
referrals more generally. The court appeared to recognize the unique “posture of this
case,” and was careful not to “speculate on the applicability to other situations.” Id. at
394. In any event, the question of whether the right to confer under the CVRA applied at
all pre-charge (as opposed to the question of the reasonableness of the procedure used in
that case) was not contested or briefed in the district court or on appeal. To the extent that
the court of appeals in Dean held that the right to confer under the CVRA can be triggered
during the initial investigative phase of the case, and that CVRA obligates the government
as a general matter to confer with crime victims during pre-charge negotiations with
criminal suspects regarding a potential plea agreement, we respectfully disagree. A
number of subsequent decisions do not follow Dean on this point. See, e.g., United
States. v. Merkosky, No. 1:02cr-0168-01, 2008 WL 1744762, at *2 (N.D. Ohio Apr. 11,
2008) (victim has rights under the CVRA only once prosecution has begun); Rubin, 558
F. Supp. 2d at 420 (victims’ rights accrue upon filing of the indictment); see also In re
Acker, 596 F.3d 370, 373 (6th Cir. 2010) (whether a victim has rights prior to formal
charges being filed is “uncertain”).
253
34 Op. O.L.C. 239 (2010)
tion as well. See BP Prods., 2008 WL 501321, at *11 (“The right to be
treated with fairness and with respect for the victim’s dignity and privacy
may apply with great force during an investigation, before any charging
instrument has been filed.”); cf. VRRA, Pub. L. No. 101-647, § 506(1),
104 Stat. 4789, 4822 (1990) (“It is the sense of Congress that the States
should make every effort to adopt the following goals of the Victim of
Crime Bill of Rights,” including that “[v]ictims of crime should be treated
with compassion, respect, and dignity throughout the criminal justice
process.”).
This right, however, must be considered in the context of the other
rights guaranteed by the CVRA. Under the well-known canon of statutory
interpretation noscitur a sociis, which means that “words and people are
known by their companions,” Gutierrez v. Ada, 528 U.S. 250, 255 (2000),
“several items in a list shar[ing] an attribute counsels in favor of interpret-
ing the other items as possessing that attribute as well,” Beecham v.
United States, 511 U.S. 368, 371 (1994). Similarly, here, the range of
application of the first seven, more specific rights should be understood to
inform the scope of the potentially more general right to fairness, dignity,
and privacy afforded by section 3771(a)(8). Cf. Jarecki v. G.D. Searle &
Co., 367 U.S. 303, 311–12 (1961) (construing for tax purposes the term
“discovery” in the phrase “exploration, discovery or prospecting” to be
limited to the finding of minerals, as suggested by its association with
exploration and prospecting, and therefore inapplicable to income from a
patented item).
Reading the right to be treated with fairness and dignity to apply during
pending criminal proceedings is consistent with the discussion concerning
the right in the CVRA’s legislative history. Every example of crime
victims experiencing unfairness, indignities, or violations of their privacy
discussed in the legislative history refers to situations occurring after the
filing of charges and typically involved a deprivation of one or more of
the other rights protected by the Act as well. For instance, the floor de-
bates reflect concern with the fairness and dignity with which crime
victims are treated during pending criminal prosecutions. See, e.g., 150
Cong. Rec. 7296–97 (2004) (statement of Sen. Feinstein) (describing
several examples of the failure to notify crime victims of critical hearings
in criminal cases, as well as other instances where crime victims were
problematically excluded from criminal proceedings); id. at 7297 (“This is
254
Availability of Rights Under the Crime Victims’ Rights Act of 2004
not the way criminal justice should be practiced in the United States of
America. The time has come to give victims of crime the right to partici-
pate in the system, the right to notice of a public hearing, the right to be
present at that public proceeding, the right to make a statement when
appropriate, the right to have restitution, if ordered by a judge, the right to
know when your assailant or attacker is released from prison, and the
right to be treated by our prosecutors and by our criminal justice system
with respect and dignity.”); id. at 7298 (statement of Sen. Kyl) (“Fair play
for crime victims, meaningful participation . . . in the justice system,
protection against a government that would take from a crime victim the
dignity of due process—these are consistent with the most basic values of
due process in our society.”). 10 These statements and examples suggest
that Congress was concerned with ensuring fair treatment for crime vic-
tims in the context of pending criminal proceedings, rather than creating a
right that could be asserted independent of any criminal prosecution. For
these reasons, we conclude that the right to fairness, dignity, and privacy
in section 3771(a)(8) of the Act, like the other seven rights, should be
understood as applying only after the filing of criminal charges against a
defendant.
C.
In addition to the nature of the rights provided, the structure and pur-
pose of the Act, as reflected in the mechanisms provided to enforce the
rights and the Act’s legislative history, also support our conclusion that
the rights are guaranteed only once the government has initiated criminal
proceedings. The mechanisms Congress established in the CVRA to
ensure that crime victims are afforded their rights, including by providing
crime victims standing to assert the rights directly, all relate to pending
criminal proceedings. Three provisions of the Act ensure that crime
victims are provided their rights or have standing to assert them. First,
10 In the more extensive legislative history for S.J. Res. 1, 108th Cong. (2003) (the
proposed constitutional amendment for which the CVRA emerged as a statutory substi-
tute), the numerous examples of alleged affronts to fairness, dignity, and privacy suffered
by crime victims again uniformly arise from the conduct of criminal proceedings and
relate to perceived failures by courts to allow a crime victim to participate meaningfully
in those proceedings against the alleged victimizer. See generally S. Rep. No. 108-191, at
19–20, 25, 28 (2003).
255
34 Op. O.L.C. 239 (2010)
under the heading “Rights Afforded,” the CVRA provides expressly that
“[i]n 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).” 18 U.S.C. § 3771(b)(1). This provision explicitly em-
powers—and, indeed, requires—the courts to afford the CVRA rights
during pending criminal proceedings. Second, the Act explicitly provides
crime victims the right to participate in a pending criminal proceeding
without intervening or becoming a party to the litigation by filing a mo-
tion on their own behalf. Id. § 3771(d)(3) (providing crime victims stand-
ing to assert their rights under the Act by motion). Third, the Act provides
that crime victims are entitled to seek relief by writ of mandamus from the
court of appeals if the district court denies the relief sought by motion in a
pending criminal proceeding. Id. (“If the district court denies the relief
sought, the movant may petition the court of appeals for a writ of manda-
mus.”). 11 By contrast, the CVRA includes no provision for crime victims
to initiate independent judicial proceedings by any mechanism, whether
by private complaint or petition or otherwise, to enforce these rights.
Taken together, the enforcement mechanisms provided by the CVRA
appear to be designed to ensure that crime victims would have legal
standing to be heard in the context of ongoing criminal proceedings
against defendants who have been accused by the government of a federal
offense.
The CVRA’s legislative history likewise underscores more generally
that protecting the ability of crime victims to participate in pending crimi-
nal proceedings was the primary purpose underlying the Act. Much of the
impetus for enactment of the CVRA arose after the Tenth Circuit issued
a decision in United States v. McVeigh, the prosecution of Timothy
McVeigh, the bomber of the federal building in Oklahoma City, limiting
the ability of victims to enforce in court their rights under the VRRA. 12
11 The Act also assigns “[t]he prosecutor” the responsibility to advise crime victims
that they “can seek the advice of an attorney” with respect to their CVRA rights. 18
U.S.C. § 3771(c)(2) (emphasis added).
12 See, e.g., 150 Cong. Rec. 7295 (2004) (statement of Sen. Feinstein) (“Nowhere was
the need for this legislation made more clear than during the trials over the Oklahoma
City bombing.”); see also id. at 22,953 (statement of Sen. Kyl) (“This legislation is meant
to ensure that cases like the McVeigh case, where victims of the Oklahoma City bombing
were effectively denied the right to attend the trial and to avoid federal appeals courts
256
Availability of Rights Under the Crime Victims’ Rights Act of 2004
The district judge ordered the sequestration of crime victims from the trial
in anticipation of hearing victim-impact statements at sentencing. The
victims and their families sought mandamus review in the Tenth Circuit,
relying, inter alia, on the language in section 502(b)(4) of the VRRA,
granting them a “right to be present at all public court proceedings related
to the offense.” 106 F.3d 325, 328–29 (10th Cir. 1997). The Tenth Circuit
denied the mandamus petition, holding that crime victims lacked standing
to enforce their rights under the VRRA in court. 13 Id. at 335 (declaring
VRRA enforceable only through the “best efforts” of the government);
see also Memorandum for Kathryn Turman, Acting Director, Office for
Victims of Crime, from William Michael Treanor, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Effect of 42 U.S.C. Sec-
tion 10607 on Proposed Revisions to the Attorney General’s Guidelines
for Victim and Witness Assistance at 4 (Jan. 15, 1999) (VRRA’s “best
efforts” obligation does not create judicially enforceable rights). The
legislative record is replete with statements reflecting Congress’s parti-
cular concern with ensuring that crime victims would have standing to
participate in ongoing criminal proceedings. CVRA supporters repeatedly
expressed concern regarding the failures of the judicial system to account
sufficiently for victims’ interests and emphasized the need to give crime
victims the opportunity to participate in such proceedings through judi-
from determining, as the Tenth Circuit Court of Appeals did, that victims had no standing
to seek review of their right to attend the trial under the former victims’ law that this bill
replaces.”).
13 Although the Tenth Circuit’s ruling in McVeigh figures most prominently in the
CVRA’s legislative history, Congress was also troubled generally by courts denying
victims standing with respect to restitution orders under the VWPA. See S. Rep. No. 108-
191, at 13 (2003) (“In those rare cases when [victims seek restitution] they face a daunt-
ing array of obstacles, including barriers to their even obtaining ‘standing’ to be heard to
raise their claims.”). Prior to the CVRA, courts generally denied victims standing to be
heard in VWPA cases. See, e.g., United States v. Johnson, 983 F.2d 216, 221 (11th Cir.
1993) (crime victim lacks standing under VWPA to challenge denial of restitution order);
United States v. Kelley, 997 F.2d 806, 808 (10th Cir. 1993) (same). These cases rested in
part on a series of Supreme Court decisions denying standing to crime victims more
generally. See, e.g., Leeke v. Timmerman, 454 U.S. 83, 86–87 (1981) (because decision to
prosecute is solely within discretion of prosecutor, private citizen has no judicially
cognizable right to challenge how prosecutor goes about making decision to prosecute);
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“a private citizen lacks a judicially
cognizable interest in the prosecution or non-prosecution of another”).
257
34 Op. O.L.C. 239 (2010)
cially enforceable rights. 14 By contrast, the legislative history contains no
discussion of the possibility of crime victims bringing independent pro-
ceedings to enforce their rights rather than enforcing them in the context
of existing, pending criminal proceedings.
D.
Particularly given the support for our reading in the text of the Act and
its legislative history, we are not persuaded by two arguments that have
been presented in support of the view that the rights afforded in the Act
were meant to apply in some circumstances before the filing of a criminal
complaint.
Perhaps the most significant argument that the rights guaranteed by the
CVRA may apply before the pendency of criminal proceedings comes
from the venue provision, which provides that 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.” 18 U.S.C.
§ 3771(d)(3) (emphasis added). The phrase “if no prosecution is under-
way,” understood colloquially, might be thought to envisage the possibil-
ity that some CVRA rights may be asserted before the pendency of crimi-
nal proceedings against a particular defendant. But “prosecution” is also a
legal term of art used to refer to the levying of formal charges, and not
merely the issuance of a warrant upon the filing of a complaint, and we
think the venue provision should be read in light of this understanding,
14 The legislative history reflects a clear concern with a failure to provide crime vic-
tims with a meaningful opportunity to participate in criminal proceedings, and conse-
quently the need to create express enforcement mechanisms for the rights. See, e.g., H.R.
Rep. No. 108-711, at 2, reprinted in 2004 U.S.C.C.A.N. 2274, 2276 (“Victims of crime
often do not feel their voices are heard or that their concerns are adequately addressed in
the judicial process. . . . This legislation addresses these concerns by codifying the rights
of victims and providing the means to enforce those rights.”); 150 Cong. Rec. 7296
(2004) (statement of Sen. Feinstein) (“In case after case we found victims, and their
families, were ignored, cast aside, and treated as non-participants in a critical event in
their lives. They were kept in the dark by prosecutors to [sic] busy to care enough, by
judges focused on defendant’s rights, and by a court system that simply did not have a
place for them.”); id. at 7297 (“The time has come to give victims of crime the right to
participate in the system[.]”); id. at 7298 (statement of Sen. Kyl) (describing the Act as
providing crime victims “meaningful participation . . . in the justice system”).
258
Availability of Rights Under the Crime Victims’ Rights Act of 2004
particularly when considered in the context of the other aspects of the Act
discussed above. For instance, Rule 7 of the Federal Rules of Criminal
Procedure requires that a felony “be prosecuted by indictment,” and
therefore any prosecution of a felony must commence with the return of
an indictment by a grand jury, Fed. R. Crim. P. 7(a)(1) (or, if the de-
fendant waives his right to indictment, the filing of an information by the
government, Fed. R. Crim. P. 7(b)). Cf. United States v. Alvarado, 440
F.3d 191, 200 (4th Cir. 2006) (stating that, for Sixth Amendment purpos-
es, “[t]he filing of a federal criminal complaint does not commence a
formal prosecution”). 15
As a result, a “prosecution” does not necessarily commence simply
because criminal proceedings have been initiated by the filing of a
complaint, although an initial appearance must be held “without unnec-
essary delay” after a defendant is arrested on a warrant. Fed. R. Crim. P.
5(a)(1)(A) (providing for initial appearance of a person arrested pursu-
ant to a warrant). At such an initial appearance the magistrate judge
informs the defendant of his rights, affords him a reasonable opportunity
to consult with counsel, and makes an initial determination with respect
to the defendant’s continued detention. Fed. R. Crim. P. 5(d). Conse-
quently, even before a “prosecution” is “underway,” important rights
secured by the CVRA may be at stake, including the right of crime vic-
tims to be heard with respect to the possible release of the defendant.
See 18 U.S.C. § 3771(a)(1), (2), (4). 16 Accordingly, we believe the venue
15 See also Kirby v. Illinois, 406 U.S. 682, 688–90 (1972) (for purposes of Sixth
Amendment right to counsel, “criminal prosecution” does not commence with filing of
complaint and issuance of arrest warrant); United States v. Pace, 833 F.2d 1307, 1312
(9th Cir. 1987) (filing of complaint and issuance of arrest warrant do not commence
criminal prosecution for Sixth Amendment purposes, but rather, based on Fed. R.
Crim. P. 7, “prosecution commenced when the indictment was handed down”). But see
Hanrahan v. United States, 348 F.2d 363, 366 n.6 (D.C. Cir. 1965) (“In some cases the
formal prosecution may begin with the indictment or information. But in others, the
prosecution may begin with the filing of a complaint.”).
16 Moreover, when a defendant is arrested outside of the district where the crime oc-
curred, such initial proceedings may not occur in the district where the crime occurred.
On this reading, the Act’s direction that the victim seek relief “in the district court in the
district in which the crime occurred,” 18 U.S.C. § 3771(d)(3), would apply during such a
period and would sensibly direct the crime victim to the court where the prosecution
most likely would ultimately occur, in conformity with Fed. R. Crim. P. 18 (“the gov-
ernment must prosecute an offense in a district where the offense was committed”).
259
34 Op. O.L.C. 239 (2010)
provision’s reference to the period when a prosecution is not underway is
best read as applying to the period of time between the filing of a com-
plaint and the initiation of formal charges. 17
Similarly, in our view, section 3771(c)(1) of the Act—which requires
those involved in the “detection, investigation or prosecution of crime [to]
make their best efforts to see that crime victims are notified of, and ac-
corded, [their CVRA rights]”— does not indicate that the CVRA rights
apply before the government initiates criminal proceedings. As we noted
in our 2005 informal advice, these references to detection and investiga-
tion tell us about which federal officials have obligations to ensure the
protection of victims’ rights, not when those rights arise. For example, the
role of field agents, that is, those centrally responsible for the detection
and investigation of crime, does not stop with the filing of criminal charg-
es. Rather, agents and detectives play an ongoing role throughout the
prosecution of a case, including continued investigative efforts and inter-
actions with victims, and, where necessary, assisting in providing protec-
tion to victims and witnesses. In particular, agents often develop a rela-
tionship of trust with crime victims during the investigation that continues
as they assist crime victims in negotiating active criminal proceedings.
Given this continuing active role that agents typically play during crimi-
nal prosecutions, we find the fact that the CVRA assigns responsibility to
them, together with the attorney for the government, to notify crime
victims of and accord them their rights under the CVRA to be entirely
consistent with our conclusion that those rights arise only once the gov-
ernment has initiated criminal proceedings.
Finally, we would note that a contrary view would be in some tension
with the CVRA’s express disavowal of permitting any interference with
our country’s long-standing tradition of governmental control of prosecu-
tions. 18 See 18 U.S.C. § 3771(d)(6) (“Nothing in this chapter shall be
17 Given that we read this provision as consistent with our conclusion regarding when
CVRA rights become available, we do not reach the question of whether other periods of
time (such as after judgment has been entered and a prosecution is no longer underway)
may also satisfy the venue provision of the Act.
18 The principle that the authority to charge criminal offenses is reserved to attorneys
for the government has deep roots that go back to the founding of our government under
the Constitution. See, e.g., Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 92 (establishing
office of United States District Attorney with the exclusive power to prosecute “all
260
Availability of Rights Under the Crime Victims’ Rights Act of 2004
construed to impair the prosecutorial discretion of the Attorney General or
any officer under his direction.”). Reading the CVRA to empower private
individuals to initiate proceedings in court making allegations that a
federal offense occurred prior to the filing of any criminal charges by the
government would, at a minimum, create substantial tension with this
tradition. Courts would be required to adjudicate, at a private party’s
instigation, the factual questions necessary to conclude that an asserted
CVRA right should be enforced, including the existence of a federal
offense. Such a court proceeding while the government’s investigation of
the crime remains underway, and in the absence of any conclusion by the
government that federal charges are warranted, would place substantial
pressure on the government’s prosecutorial charging decisions and may
even risk, in some circumstances, impairing the government’s ability to
build a viable case. This risk may be particularly apparent in large-scale
cases where the government often relies in part on the assistance of coop-
erating defendants and depends upon maintaining the secrecy of the
ongoing investigation. The legislative history does not suggest that Con-
gress intended such an outcome. To the contrary, both section 3771(d)(6)
and the legislative record as a whole suggest that Congress did not intend
to impinge upon prosecutorial independence, but rather to ensure that
once criminal proceedings are initiated, crime victims have rights to be
heard and treated fairly in the process, and standing to enforce those
rights.
E.
For these same reasons, we also conclude that rights under the CVRA
cease to be guaranteed if all charges in the case are dismissed either
voluntarily or on the merits once the dismissal becomes final and the
criminal proceedings have ended (or if the government declines to bring
delinquents for crimes and offenses, cognizable under the authority of the United States”);
see also Respect Due to Consuls, 1 Op. Att’y Gen. 41, 43 (1794) (“it will be the duty of
the district attorney to reduce the presentment into form, and the point in controversy will
thus be put in a train for judicial determination”); Heckler v. Chaney, 470 U.S. 821, 832
(1985) (“[t]he decision of a prosecutor in the Executive Branch not to indict . . . has long
been regarded as the special province of the Executive Branch, inasmuch as it is the
Executive who is charged by the Constitution to “take Care that the Laws be faithfully
executed”) (citing U.S. Const. art. II, § 3).
261
34 Op. O.L.C. 239 (2010)
formal charges after the filing of a complaint). As we have explained, the
CVRA’s guarantees are premised on the existence of an accused against
whom the government has initiated criminal proceedings with respect to a
particular offense or offenses. Ensuring that victims’ interests are protect-
ed during the course of those proceedings is the CVRA’s core purpose. In
the absence of a proceeding against a particular accused that animates the
CVRA’s guarantees, the rights guaranteed by the Act would not apply.
For these reasons, we conclude that rights of crime victims under the
Crime Victims’ Rights Act are not guaranteed until criminal proceedings
are initiated by the filing of a criminal complaint or information, or by the
return of an indictment, and cease to be guaranteed if all charges in the
case are declined or dismissed either voluntarily or on the merits.
JOHN E. BIES
Deputy Assistant Attorney General
Office of Legal Counsel
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