HOUSE_OVERSIGHT_017727.jpg

Page 13 of 52
2005 B.Y.U.L. Rev. 835, *856

recite a specific proposed change followed by the rationale for that change as both a matter of law and of policy. For convenience, this Article discusses the proposed changes sequentially, beginning with Rule 1.

Rule 1 - Definition of "Victim"

The Proposal:

Rule 1 should be amended to include the following definition of a victim:

"Victim" means a person directly and proximately harmed as a result of the commission of a federal offense or an offense in the District of Columbia. In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardians of the crime victim or the representatives of the crime victim's estate, family members, or any other persons appointed as [*857] suitable by the court, may assume the crime victim's rights under these rules, but in no event shall the defendant be named as such guardian or representative.

The Rationale:

The CVRA directly defines "victim" using this language, 120 which ought to be folded into the rules for convenience. The rules currently define such terms as "attorney for the government," "federal judge," and "petty offense." 121 "Victim" should likewise be defined.

A definition is required for a second reason: Rule 32 currently contains a differing definition of "victim" as "an individual against whom the defendant committed an offense for which the court will impose sentence." 122 Because that definition varies from that mandated by the CVRA, it must be changed. Furthermore, the CVRA's definition comes with an interpretative history. 123 The CVRA's definition of "victim" is taken almost verbatim from the 1996 Mandatory Victims Restitution Act (MVRA). 124 In turn, the MVRA drew on the 1982 Victim Witness Protection Act (VWPA). 125 As a result, the CVRA uses a definition of "victim" that is more than twenty-two years old and that has not produced major administrative or definitional problems. Courts will be able to draw from that history to determine who qualifies as a "victim." 126

120 18 U.S.C.A. 3771(e) (West 2004 & Supp. 2005).

121 See Fed. R. Crim. P. 1(b)(1), 1(b)(3), 1(b)(8).

122 Id. at 32(a)(2).

123 See generally Beloof, Cassell & Twist, supra note 15, at 49-69 (reviewing different definitions of "victim" for purposes of crime victims' legislation).

124 See 18 U.S.C. 3663A(a)(2). For differences from the old law, see Twist, supra note 2.

125 See 18 U.S.C. 3663(a)(2).

126 See, e.g., Hughey v. United States, 495 U.S. 411 (1990) (holding that VWPA limited "victim" to victims of the actual offense of conviction so that district court could not order restitution on basis of charges that were dropped as part of plea agreement); United States v. Follet, 269 F.3d 996 (9th Cir. 2001) (holding that a free clinic was not a "victim" of the defendant's rape of his niece); Moore v. United States, 178 F.3d 994 (8th Cir. 1999) (holding that a bank customer was "victim" of attempted bank robbery under MVRA where defendant pointed a sawed-off shotgun at the customer and the teller, who were standing only two feet apart, while demanding money), cert. denied, 528 U.S. 943 (1999); United States v. Sanga, 967 F.2d 1332 (9th Cir. 1992) (holding that foreign national who conspired to be brought into United States illegally was still a "victim" of the conspiracy where her smuggler threatened her life and forced her to work as live-in maid once she had arrived); United States v. Bedonie, 317 F. Supp. 2d 1285 (D. Utah 2004) (holding that "victim" in manslaughter case under MVRA was murdered person himself and not the estate), rev'd on other grounds, United States v. Serawop, 410 F.3d 656 (10th Cir. 2005).
See generally John F. Wagner, Jr., Annotation, Who Is a "Victim," So as To Be Entitled to Restitution Under Victim and Witness Protection Act, 108 A.L.R. Fed. 828 (2005).

A few new issues will need to be litigated. For example, the Hughey case noted above conflicts with the views of Senator Jon Kyl, co-sponsor of the CVRA, who explained that the definition of "victim" in the CVRA is an intentionally broad definition because "all victims of

DAVID SCHOEN

HOUSE_OVERSIGHT_017727