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2007 Utah L. Rev. 861, *881

The differences between the two approaches might seem modest until one recognizes that another provision in the Advisory Committee's proposals appears to intentionally omit any reference to a victim representative. Proposed Rule 60, the Advisory Committee's "global" provision dealing with victims' rights, explains who may enforce victims' rights. 122 In clear contrast to the CVRA's governing provision, this proposed rule omits any reference to a crime victim's representative. Proposed Rule 60 provides only that "the rights of a victim under these rules may be asserted by the victim and the attorney for the government." 123 In contrast, the CVRA enforcement provision states: "The crime victim or the crime victim's lawful representative, and the attorney for the Government may assert the rights described in subsection (a)." 124 Nothing in the Advisory Committee Notes indicates that a crime victim's representative is among those authorized to assert the rights. The Advisory Committee also struck existing [*882] language in the Rules about a victim's representative exercising the victim's right to speak at sentencing. 125

The repeated omission of any reference to a victim's representative is unsettling given the Advisory Committee's promise to simply track the CVRA's language. 126 Its failure to track the language here leaves the impression that the Advisory Committee is uncomfortable with a victim's representative asserting rights. Perhaps the Committee could make a policy argument against such representation, but Congress has said victims have the right to have representatives speak for them. The Federal Rules should follow the CVRA and state clearly that a victim's representative can assert a victim's rights.

The need for clarity on this point is heightened by pre-CVRA caselaw questioning any right by a victim's representative to assert victims' rights. Most notably, in one of the Oklahoma City bombing prosecutions, the Tenth Circuit rebuked a trial judge for permitting an attorney for the bombing victims to participate in oral argument at a sentencing hearing. 127 The Circuit stated that "in the absence of any authority permitting the participation of victims' counsel, we harbor concerns about the propriety of the district court's rulings." 128 This statement can no longer be regarded as good law in light of the CVRA's commands. 129

Another reason for clarity is to make sure that corporate and organizational victims are able to be heard in the process. The CVRA's definition of victim - "a person directly and proximately harmed as a result of the commission of a Federal offense" 130 - is essentially lifted from federal restitution statutes. 131 Federal courts have consistently held that a "person" entitled to restitution includes corporate entities. 132 Of course, such legal entities cannot appear personally but only through [*883] a

121 For subsequent developments on this issue, see infra notes 578-579 and accompanying text.

122 Proposed Amendments, supra note 71, R. 60, at 16-18.

123 Advisory Committee Report, supra note 69, at 16.

124 18 U.S.C. § 3771(d)(1) (2006) (emphasis added).

125 See Proposed Amendments, supra note 71, R. 32(i)(4)(B)(i)-(ii), at 13-14 (deleting language confirming permission for parent or legal guardian to exercise right to speak at sentencing for minor and incapacitated victims).

126 See, e.g., Advisory Committee Report, supra note 69, at 1 ("The Subcommittee concluded that the Rules should incorporate, but not go beyond, the specific statutory provisions [in the CVRA].").

127 United States v. Fortier, 242 F.3d 1224, 1230 (10th Cir. 2001). In the interest of full disclosure, I was the attorney in question.

128 Id.

129 See United States v. Degenhardt, 405 F. Supp. 2d 1341, 1343 n.7 (D. Utah 2005) (noting that Fortier has now been overruled by statute).

130 18 U.S.C. § 3771(e) (2006) (emphasis added).

131 See 18 U.S.C. § 3663(a)(2); id. § 3663A(a)(2).

132 See, e.g., United States v. Martin, 128 F.3d 1188, 1191 (7th Cir. 1997) (collecting cases); United States v. Hand, 863 F.2d 1100, 1104 (3d Cir. 1988) (it makes no sense to say that "if General Motors or Chase Manhattan Bank had funds stolen, in violation of federal criminal law, a

DAVID SCHOEN

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