VICTIMS RIGHTS UNDER FEDERAL LAW

 

 

Another objective of Civil RICO is to turn victims into prosecutors, “private attorneys general”, dedicated to eliminating racketeering activity.  See Rotella v. Wood.

 

Under section 3771 (d (1) , crime victims are now authorized to assert those rights independently. In addition, the federal district courts themselves are now directed,“ [i]n any court proceeding involving an offense against a crime victim,[to] ensure that the crime victim is afforded the rights described in subsection (a).” 18 U.S.C. § 3771 (b) (1)

 

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

 

In U.S. v. Moussaoui, 483 F.3d 220, 234–35 (4th Cir.2007) the appellate court found that the CVRA offered “no support for the district court’s orders.” “The rights codified by the CVRA...are limited to the criminal justice process; the Act is therefore silent and unconcerned with victims’ rights to file civil claims against their assailants.”

 

In re Kenna, 453 F.3d 1136, 1136–37 (9thCir.2006) (percuriam)(KennaII) A victim in a fraud case filed a petition for a writ of mandamus, seeking an order to require the sentencing court to release to the victim the entire presentence report. Agreeing with the district court, the appellate court found no support “in either the language of the statute or the legislative history ”for the victim’s argument that the CVRA conferred a general right for crime victims to access presentence reports. The district court had also found that the victim “has not demonstrated that his reasons for requesting the PSR outweigh the confidentiality of the report under the traditional‘ ends of justice’ test.” See also Moussaoui, supra, and Brock, Citgo, and Sacane, infra.  http://www.fjc.gov/public/pdf.nsf/lookup/cvra2008.pdf/$file/cvra2008.pdf

 

 

Because a victim’s rights under the CVRA seem to begin long before an actual guilty plea or conviction after trial, the status of “victim” may be based on allegations rather than proof.

 

Note that, although 42U.S.C. § 10606 was repealed, section 10607 remains ineffect. It outlines the specific “services to victims” that government personnel must supply, some of which are related to the rights set out in section 3771. Although section 10607 (d) specifically states that it “does not create a causeofaction ”for failure to provide these services, a failure to satisfy section 10607 could be relevant to so me claims under the CVRA, such as the government did not adequately consult with the victim, section 3771(a)(5), or the victim was not “treated with fairness and with respect for the victim’s dignity and privacy, ”section3771 (a) (8).

 

Do companies or other organizations have rights under the CVRA? The definition of “victim” insection 3771(e) refers only to “a person,” and the alternates who may assume the rights of an incapacitated victim are also individuals.

 

However, organizations are not specifically excluded. A related statute, 42U.S.C.§10607(e), includes “an institutional entity” in its definition of a victim.

 

The CVRA included a process for congressional review of the new legislation’s effectiveness: “[T]he Administrative Office of the United States Courts, for each Federal court, shall report to Congress the number of times that a right estab-lished in [section3771] is asserted in a criminal case and the relief requested is denied and...the reason for such denial. ”And within four years of the CVRA’s effective date, the Comptroller General shall submit a report on “the effect and efficacy of the implementation of the amendments made by this title on the treatment of crime victims in the Federal system.” See Pub.L.No.108-405, Title I, § 104 (a) and (b).

 

A victim has the right to be notified of and present at any public hearing regard-ing Speedy Trial Act issues. If a violation of the Speedy Trial Act could lead to dismissal of the charges against the defendant and to his or her possible release, it appears that a victim would have the right to be reasonably heard in any public proceeding on that issue. Section 3771(a)(7) states that victims have a right to“proceedings free from unreasonable delay. ”While that right may normally be compatible with a defendant’s right to a speedy trial, there are several exceptions in the Speedy Trial Act, see 18U.S.C.§ 3161(h), that could authorize a delay that seems unreasonable to a victim. The question may arise whether a delay that is authorized under section 3161(h) is presumptively reasonable or possibly a violation of section3771(a)(7). A victim has the right to be notified of and present at any public hearing on a motion to delay the trial, but does not have the right to be reasonably heard unless the defendant is to be released upon a finding that his or her speedy trial rights were violated. If the defendant is not to be released, a victim can object to a delay only by filing a motion for relief under section 3771(d)(3). If a delay will be granted, the court may wish to explain to the victim, or ask the government to explain, why such a delay is necessary and not unreasonable.

 

A victim of a federal crime may file a complaint against any employee of the Department of Justice who violated or failed to provide the rights established under the Crime Victims Rights Act of 2004, 18 U.S.C. § 3771.

 

The Department of Justice has established the Office of the Victims’ Rights Ombudsman to receive and investigate complaints filed by crime victims against its employees, and has implemented Procedures to Promote Compliance with Crime Victims’ Rights Obligations, 28 C.F.R. § 45.10.

 

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).

 

The complaint process is not designed for the correction of specific victims’ rights violations, but is instead used to request corrective or disciplinary action against Department of Justice employees who may have failed to provide rights to crime victims. The Department of Justice will investigate the allegations in the complaint to determine whether the employee utilized his or her "best efforts" to provide crime victims' rights.

 

After an extensive discussion of the meaning of “directly and proximately harmed,” the standard undersection 3771(e), the court concluded thats he was not a victim of the defendant’s offense under the CVRA.“ Here, Nowickiisnota‘ victim’ as that term isused in the CVRA becauses he is not a person ‘directly and proximately harmed’ by the federal crime committed by the Defendant. The Defendant has pled guilty to conspiring to distribute marijuana. But linking this fact to Nowicki’s abuse is too attenuated, either temporally or factually, to confer ‘victim’ status on Nowickias that term isused in the statute. Nowickiis no doubt an alleged victim of her boy friend’s violent ways. But Nowicki cannot demonstrate the nexus between the Defendant’s act of selling drugs and her former boyfriend’s subsequent act of abusing her.”See also Antrobus, supra U.S. v. Sharp, 463 F.Supp. 2d 556, 561–67(E.D.Va.2006)

 

“This victim’s right to fairness extends to the court’s decision regarding whether to dismiss an indictment even though no public proceeding will be held on the issue. Although some of the other rights in the Crime Victims’ Rights Act (such as the right to be heard and the right to not be excluded) are limited to ‘public proceedings,’ the right to fairness is not so restricted.”“When the government files a motion to dismiss criminal charges that involve a specific victim, the only way to protect the victim’s right to be treated fairly and with respect for her dignity is to consider thevictim’s views on the dismissal....[B]efore granting any motion by the government...to dismiss charges involving aspecific victim, the court must have the victim’s views on the motion. ”In such cases, therefore,the government should consult with the victim and inform the court “that the victim has been consulted on the dismissal and what the victim’s views were on the matter.” U.S. v. Heaton, 458F. Supp. 2d1271,1272–73 (D.Utah2006)

 

Apart from noting that the court should make its own determination whether dismissalis warranted, it found that “[t]here is a particular need to examine the reasons for dismissal in this case to ensure that the crime victim’s rights are fully protected.The indictment alleges a sexual offense against a young victim. Under the Crime Victims’ Rights Act (CVRA), this victim has the broad right ‘to be treated with fairness and with respect for [her]dignity and privacy.’”

 

“This victim’s right to fairness extends to the court’s decision regarding whether to dismiss an indictment even though no public proceeding will be held on the issue. Although some of the otherr ights in the Crime Victims ’Rights Act (such as the right to be heard and the right to not be excluded) are limited to ‘public proceedings,’ the rightt of fairness is not so restricted.”“When the government files a motion to dismiss criminal charges that involve a specific victim, the only way to protect thev ictim’s right to be treated fairly and with respect for her dignity is to consider the victim’s views on the dismissal....

 

[B]efore granting any motion by the government...to dismiss charges involving a specific victim, the court must have the victim’s views on the motion.” In such cases, therefore,the government should consult with the victim and inform the court “that the victim has been consulted on the dismissal and what the victim’s views were on the matter. U.S. v.  Heaton, 458F.Supp.2d1271,1272–73(D.Utah2006)

 

Thecourtorderedthegovernmentto“informallofthecrimevictimsoftheirCVRArights,”including“theirrightstoappealthisorder.” U.S.v.L.M.,425F.Supp.2d948,951–57(N.D.Iowa2006)

 

The court held that “a broad congressional mandate in a statute must take precedence over an arrower court rule,...[and] the limits in Rule 32 of the Federal Rules of Criminal Procedure must give way to the CVRA’s command that all victims have the right to allocute.” The court also concluded that “the CVRA gives victims the right to speak directly to the judge at sentencing. ”The phrase“ to be reasonably heard ”is ambiguous, but the legislative history “makes it clear that the CVRA created a right to be heard in person.” Finally, the court concluded that a victim’s right to speak is mandatory,and is no tsubject to the discretion of the court unless such a large number of victims are involved that the court’s ability to function effectively would be threatened. See also Kenna I, supra, and Marcello, infra U.S. v. Degenhardt, 405 F. Supp. 2d 1341, 1343–45 (D.Utah2005)

 

“[T]he plaintiffs in the additional civil lawsuits filed against Defendant are those who were directly and proximately harmed as a result of the commission of the antitrust violation. Therefore, the Court should be particularly sensitive to ensuring they are given full access to the proceedings and the Plea Agreement”in accordance with section 3771(a)(2)–(3),(b).

 

The Office of the Victims’ Rights Ombudsman does not administer crime victim funds or provide services. If you are seeking information about available resources and services, please contact the Office for Victims of Crime. U.S.v.CromptonCorp.,399F.Supp.2d1047,1051(N.D.Cal.2005)

 

Thecourtalsonoted“victims’rightsundertheCVRAbeginwellbeforeaconvic-tion;thus,thestatusof‘victim’maybebasedonallegationsratherthanproof.”SeealsoIngrassiaandTurner,supra,andStokes,infra.

 

Thecourtnotedthatthereisageneralpresumptionagainstgrantingthirdpartiesaccesstopresentencereportsabsenta“compelling,particularizedneedfordisclosure.”Inthiscase,theCourtfoundthatsuchaneed“hasnotbeendemonstrated...[T]heCourtacknowledgesthattheCVRAconfersadutyupontheGovernmenttomake‘bestefforts’tonotifycrimevictims.18U.S.C.§3371(c (1).However,theActdoesnotrequirethedisclosureofpresentenceinvestigationreportsorotherdocumentsofasimilarnature.”SeealsoKennaIIandBrock,supra,andSacane,infra  U.S.v.CitgoPetroleumCorp.,CR.No.C-06-563(S.D.Tex.Aug.8,2007)(Rainey,J.)(unpublishedorder)

 

The court denied the motion, noting that other courts have found that victims have no right to information contained in a presentence report. “If the CVRA does not provide crime victims with a right to disclosure of the presentence report, then a fortiori it would not provide crime victims with a right to obtain such disclosures directly from a defendant....If the[victims] believe that additional financial disclosures are necessary, then pursuant to the CVRA they may enlist the assistance of the government; but they are not permitted to by pass the government and discover information directly from Sacane. ”See also Moussaoui, KennaII, Brock, and Citgo, supra , U.S. v. Sacane, Crim. No.3:05cr325 (AHN) (D. Conn. Mar. 28, 2007)(Nevas,J.)(unpublished order)

 

First, there is a compelling government interest in protecting the dignity, as well as the physical and psychological wellbeing, of mentally-ill alleged crime victims....U.S.v. Kaufman, No.CRIM.A.04-40141-01(D. Kan. Oct. 17, 2005)(Belot, J.)(unpublished memorandum and order)

 

However, in light of the rights of the ostensible victims, “and taking in to account the court’s statutory obligation to ‘ensure that [all]crimevictim[s][are] afforded the rights described, ’” the court stated that “the parties are here by put on notice that no further continuance will be grantedin the absence of extraor-dinary circumstances.”U.S.v.Tobin, No.04-CR-216-01-SM ( D.N.H. July 22, 2005)(unpublished order) U.S.v.Tobin, No.04-CR-216-01-SM ( D.N.H. July 22, 2005)(unpublished order)

 

The prosecutor stated that he did not think notice was required, and the court agreed, concluding that, because the previous convictions were for state offenses, any victims of those crimes did not meet the definition in section 3771(e), which does not include victims of state offenses. The opinion also includes some discussion of the legislative history of the CVRA.  U.S. v. Guevara - Toloso, No. M04-1455 (E.D.N.Y. May 23, 2005)(unpublished order)

 

 

A federal crime victim has the following rights:

 

The right to be reasonably protected from the accused.

 

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.

 

 

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.

 

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

 

The reasonable right to confer with the attorney for the Government in the case.

 

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

 

The right to proceedings free from unreasonable delay.

 

The right to be treated with fairness and with respect for the victim's dignity and privacy.

 

No cause of action.—Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages.

 

 

Contact

Marie A. O'Rourke
Victims' Rights Ombudsman
Executive Office for United States Attorneys
Department of Justice
RFK Main Justice Building
950 Pennsylvania Ave., N.W.
Room 2261
Washington, DC 20530-0001

 

 

 

ANCILLARY MATTERS

SEC. 6. Except as otherwise provided in this Act-

(a) APPEARANCE.-Any person compelled to appear in person before any agency or representative thereof shall be accorded the right to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative . Every party shall be accorded the right to appear in person or by or with counsel or other duly qualified representative in any agency proceeding.
 

So far as the orderly conduct of public business permits, any interested person may appear before any agency or its responsible officers or employees for the presentation, adjustment, or determination of any issue, request, or controversy in any proceeding (interlocutory, summary, or otherwise) or in connection with any agency function. Every agency shall proceed with reasonable dispatch to conclude any matter presented to it except that due regard shall be had for the convenience and necessity of the parties or their representatives.
 

Nothing herein shall be construed either to grant or to deny to any person who is not a lawyer the right to appear for or
represent others before any agency or in any agency proceeding.