HOUSE_OVERSIGHT_017617.jpg

Page 14 of 31
104 J. Crim. L. & Criminology 59, *78

poor fit. Although OLC's memorandum characterizes Turner as excluding victims of uncharged conduct, 105 the magistrate judge adopted an inclusive reading of the statute precisely because of his reservations about the CVRA's legislative history and plain language. The judge suggested that "any person who self-identifies as [a victim]" could be presumed to qualify for protection under the CVRA as a preliminary matter. 106 In fact, the line quoted by the Department is lifted out of context. The full sentence reads: "While the offense charged against a defendant can [*79] serve as a basis for identifying a 'crime victim' as defined in the CVRA, the class of victims with statutory rights may well be broader." 107

Paletz and Skinner similarly provide scant support for the Department's position. In Skinner, a prison inmate attempted to bring a pro se civil suit against another inmate for allegedly attacking him during incarceration. 108 In dismissing the suit in an unpublished decision, the district court recognized that the Government had expressly declined to bring charges against the other inmate and concluded that the CVRA did not create a "mechanism to bring an action against Defendant directly." 109 In Paletz, that same inmate brought a similar pro se claim against another inmate, the Federal Bureau of Prisons, the FBI, and the U.S. Attorney General. 110 In a parallel, unpublished decision, the district court dismissed the suit, noting that the CVRA is designed to give victims certain rights "within the prosecutorial process against a criminal defendant." 111

Because Skinner and Paletz involve (apparently frivolous) civil suits, they say nothing about the CVRA's reach in criminal cases, and any language to that effect would be pure dicta. Moreover, the courts' terse analysis in both cases does not contain any substantive discussion of whether CVRA rights apply in criminal cases before the filing of charges. Instead, the courts simply cited to language from a Second Circuit decision that stated that the CVRA does not give victims any rights against defendants until those defendants have been convicted 112 - a holding clearly limited to restitution, as many other CVRA rights clearly apply before conviction. 113 Reviewing these two cases in an extended, published opinion, the U.S. District Court for the Southern District of Texas noted that reading these two decisions as standing for the proposition that charges must be filed for CVRA rights to attach "appears inconsistent with the CVRA recognition of certain subsection (a) rights that apply during investigation, before any charging instrument is filed." 114 As a result, OLC [*80] vastly overstates its position when it asserts

________________________________________________________________________________
103 No. 6:07-1389-GRA-WMC, 2007 WL 1875802 (D.S.C. June 27, 2007).
104 No. 6:06-1418-GRA-WMC, 2006 WL 1677177 (D.S.C. June 16, 2006).
105 OLC CVRA Rights Memo, supra note 2, at 6 n.6.
106 Turner, 367 F. Supp. 2d at 327 ("Instead, I have taken and will continue to follow an inclusive approach: absent an affirmative reason to think otherwise, I will presume that any person whom the government asserts was harmed by conduct attributed to a defendant, as well as any person who self-identifies as such, enjoys all of the procedural and substantive rights set forth in § 3771.").
107 Id. at 326.
108 Skinner, 2006 WL 1677177, at 1-2.
109 Id. at 2.
110 Searcy v. Paletz, No. 6:07-1389-GRA-WMC, 2007 WL 1875802, at 1-2 (D.S.C. June 27, 2007).
111 Id. at 2.
112 Id. ("However, "the CVRA does not grant victims any rights against individuals who have not been convicted of a crime."" (quoting In re W.R. Huff Asset Mgmt. Co., 409 F.3d 555, 564 (2d Cir. 2005))).
113 Of course, a defendant cannot be ordered to pay restitution as part of his sentence until he has been found guilty. See 18 U.S.C. § 3664 (2012) (describing sentencing procedures for ordering restitution).
114 United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 WL 501321, at 12 n.7 (S.D. Tex. Feb. 21, 2008).

DAVID SCHOEN
HOUSE_OVERSIGHT_017617