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2014| CRIME VICTIMS’ RIGHTS 73

C. COURTS RECOGNIZE THAT CRIME VICTIMS HAVE CVRA RIGHTS
BEFORE CHARGING

Because crime victims lack a right to appointed counsel, many victims
have difficulty litigating the scope of their rights.62 But in a few cases,
victims have been able to secure counsel to argue that they have rights in
the criminal justice process during the investigation of federal crimes.
When those cases have reached the issue of whether the CVRA applies
before charges have been filed, courts have uniformly agreed with the
victims’ position.

Perhaps the leading case to date to assess this question is the Fifth
Circuit’s decision in In re Dean.63 There, a wealthy corporate criminal
defendant reached a generous plea deal with the Government—a deal that
the Government filed for approval with the district court without conferring
with the victims. Citing procedural rights under the CVRA, the victims
requested that the trial court reject the plea agreement.64 The District Court
for the Southern District of Texas specifically concluded that victims’
CVRA rights could apply during the investigation of the crime: “There are
clearly rights under the CVRA that apply before any prosecution is
underway.”65 The district court concluded, however, that the Government
had not violated the CVRA because it had secured judicial permission to
dispense with notification to victims.66

The victims sought appellate review in the Fifth Circuit.67 There, the
court concurred with the district court that CVRA rights apply before trial.
Unlike the district court, however, it held that the Government had violated
the victims’ rights:

The district court acknowledged that “[t]here are clearly rights under the CVRA that
apply before any prosecution is underway.” Logically, this includes the CVRA’s
establishment of victims’ “reasonable right to confer with the attorney for the
Government.” At least in the posture of this case (and we do not speculate on the

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62 John W. Gillis & Douglas E. Beloof, The Next Step for a Maturing Victim Rights
Movement: Enforcing Crime Victim Rights in the Courts, 33 MCGEORGE L. REV. 689, 693 (2002).
63 527 F.3d 391 (5th Cir. 2008). Other aspects of the case are discussed in Paul G.
Cassell & Steven Joffee, The Crime Victims’ Expanding Role in a System of Public
Prosecution: A Response to the Critics of the Crime Victims’ Rights Act, 105 NW. U. L. REV.
COLLOQUY 164, 172–76 (2011).
64 In re Dean, 527 F.3d at 392.
65 United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 WL 501321, at *11 (S.D.
Tex. Feb. 21, 2008).
66 Id. at *1, *19.
67 For discussion of the difficulties crime victims face to obtain appellate review of their
claims, see generally Paul G. Cassell, Protecting Crime Victims in Federal Appellate Courts:
The Need to Broadly Construe the Crime Victims’ Rights Act’s Mandamus Provision, 87
DENV. U. L. REV. 599 (2010).

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