EFTA01098638.pdf

Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 1 of 16 THE AVAILABILITY OF CRIME VICTIMS' RIGHTS UNDER THE CRIME VICTIMS' RIGHTS ACT OF 2004 The rights provided by the Crime Victims' Rights Act are guaranteedfrom 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 bringformal 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)), guarantees 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 Attorney 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 dismissed. 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 3771(a) 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).' I 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, 21:06); Memorandum for John E. Bies, Deputy Assistant 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 Goldman 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, Respondent's Exhibit A Case No. 08-80736-CIV-MARRAMOHNSON EFTA01098638 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 2 of 16 Opinions of the Office ofLegal Counsel in Volume 35 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 practice, 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 directly 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 proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. 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 Alberto Madan, General Counsel, Office of Justice Programs (Sept. 29, 2010, 19:23); 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. Sterner, 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. 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. 2 Respondent's Exhibit A Case No. 08.80736-CIV-MARRAMOHNSON EFTA01098639 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 3 of 16 The Availability of Crime Victims' Rights Under The Crime Victims' Rights Act of 2004 (5) The reasonable right to confer with the attorney for the Government in the case. (6) The right to full and timely restitution as provided 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, 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.; (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 "[fin 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 agencies of the United States engaged in the detection, investigation, or prosecution of crime" shall "make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)," id. § 3771(c)(1), and it requires "[t]he prosecutor" to "advise the crime victim 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 3 The VRRA had read as follows: Rights of Crime Victims.— A crime victim has the following rights: (I) The right to be treated with fairness and with respect for the victim's dignity 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 offense, 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 Ithel 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(bXI)-(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. 3 Respondent's Exhibit A Case No. 08-80736-CIV-MARRAMOHNSON EFTA01098640 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 4 of 16 Opinions of the Office of Legal Counsel in Volume 35 in the 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 prosecutorial 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 regulations 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(0(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 victims," kl. § 3771(0(2)(B); "contain disciplinary sanctions, including suspension or termination from employment, for employees of the Department of Justice who willfully or wantonly fail to comply with provisions of Federal law pertaining to the treatment of crime victims," id. § 3771(0(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(0(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). 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 reading 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 Say. 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 number 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 enforcement mechanisms provided in the Act, which direct courts to ensure that crime victims are afforded their CVRA rights to participate in pending criminal proceedings and empower crime victims to file motions to enforce these rights 4 Respondent's Exhibit A Case No. 08-80736-CIV-MARRA/JOHNSON EFTA01098641 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 5 of 16 The Availability of Crime Victims' Rights Under The Crime Victims' Rights Act of 2004 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 protected 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 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 proximately 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 377I(a) become 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 commission 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 reading, most courts to I 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 history 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 n. 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(eX2) (2006), including the commission of a crime under federal, state, or tribal law. Rather than adopt this definition 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 proximately harmed as a result of the commission of an offense for which restitution may be ordered"); 18 U.S.C. § 3553A(aX2) (same for purposes of the Mandatory Victims Restitution Act). Congress's apparent decision to adopt the VWPA's definition of "victim" is potentially significant insofar as it allows us to look for 5 Respondent's Exhibit A Case No. 08-80736-CIV-MARRAMOHNSON EFTA01098642 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 6 of 16 Opinions of the Office of Legal Counsel in Volume 35 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 B. Standing alone, the CVRA's definition of "crime victim" is not dispositive 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 together, appear to contemplate the existence of an ongoing criminal proceeding initiated by the Government. Five of the eight rights articulated there expressly refer to or necessarily presuppose the existence of a criminal proceeding. See kl. § 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. See 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 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 interpre PA not to apply to uncharged conduct. See, e.g., United States v. Turner, 367 F. Supp. 2d 319, 326.27 . 2005) ("ITIhe full Congress passed the (CVRAI knowing that similar language in an earlier victims' rights bill had been interpreted not to refer to uncharged conduct... . Since the WWPAI 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 ICVRA].") (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 2009); United States v. Sharp, 463 F. Supp. 2d 556, 563-64 (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 considerations are only suggestive. 6 See, e.g., Turner, 367 F. Supp. 2d at 326-27 (excluding victims of uncharged conduct 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 it Paletz, No. 6:07-I389-GRA-WMC, 2007 WL 1875802, at *6 (M. 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 (M. 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 acti gainst inmate). But see United States it BP Prods. North Alt Inc., No. H-07-434, 2008 WL 501321, at *11-16 Tex. Feb. 21, 2008) (finding certain CVRA rights to apply pre-charge but construing them narrowly so M . as not to interfere with prosecutorial discretion). 6 Respondent's Exhibit A Case No. 08-80736-CIV-MARRAMOHNSON EFTA01098643 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 7 of 16 The Availability of Crime Victims' Rights Under The Crime Victims' Rights Act of 2004 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, regarding the right to restitution and the right to proceedings free from unreasonable delay, likewise presume the existence of criminal proceedings against a defendant. See id. § 3771(a)(6) ("The right to full and timely restitution as provided in law."); id. § 3771(a)(7) ("The right to proceedings free from unreasonable delay."). 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 accused" 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 initiated."); 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 proceeding. See United States v. Rubin, 558 F. Supp. 2d 411, 420 2008) ("`[A]ccused' must mean accused by criminal complaint, information 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 additional 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 added). 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 protection 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. § I0606(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 co-terminous would fail to give meaning to Congress's deliberate choice to use different words in two 7 Respondent's Exhibit A Case No. 08-80736-CIV-MARRNJOHNSON EFTA01098644 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 8 of 16 Opinions of the Office ofLegal Counsel in Volume 35 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. 48, 58 (1878))! 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 pendency 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 at 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). 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, andNila 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, perhaps, 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 determination 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." 18 U.S.C. § 3771(d)(6). 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 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 "accused." 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 establish apply throughout the criminal justice system? Mr. Kyl: Yes... . 150 Cong. Rec. 7304 (2004) (colloquy of Sens. Feinstein and Kyl) (emphasis added). 8 Respondent's Exhibit A Case No. 08-80736-CIV-MARRAMOHNSON EFTA01098645 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 9 of 16 The Availability of Crime Victims' Rights Under The Cfinte Victims' Rights Act of2004 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 existence 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 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 assigned. 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 example, 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 emphasize that the right to confer relates to the conduct of criminal proceedings after the filing of charges. Senator Feinstein explained that "[t]he 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." 150 Cong. Rec. 7302 (2004) (emphasis added). Similarly, Senator Kyl stated that "[Olds right to confer does not give the crime victim any right to direct the prosecution. Prosecutors should consider it part of their profession 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 meaningful 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 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 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"). 9 Respondent's Exhibit A Case No. 08-80736-CIV-MARRAMOHNSON EFTA01098646 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 10 of 16 Opinions of the Office ofLegal Counsel in Volume 35 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 opportunity 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 mandamus 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 individual 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. Noting 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 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," "dignity," and "privacy" are certainly implicated directly in judicial proceedings. See, e.g., Nixon v. Warner CommcillS, 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 investigation as well. See BP 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 In re 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 proceeding 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 In re Dean, 527 F.3d at 395. In rejecting this argument, the Fifth Circuit ruled that such an ex pane 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 pane 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 In re 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 In re Dean on this point. See, e.g., United States. v. Merkosky, No. 1:02cr-0168- 01, 2008 WL 1744762, at •2 Ohio Apr. II, 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"). I0 Respondent's Exhibit A Case No. 08-80736-CIV-MARRAMOHNSON EFTA01098647 Case 9:08-cv-80736-KAM Document 90-1 Entered on FLSD Docket 08/19/2011 Page 11 of 16 The Availability of Crime Victitns' Rights Under The Crime Victims' Rights Act of 2004 Prods. North Am. Inc., 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(I), 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