Legal memo debates pre‑charge application of Crime Victims' Rights Act to EPA and FBI investigators

2014] CRIME VICTIMS’ RIGHTS 87 as environmental crimes investigators in the Environmental Protection Agency (EPA).'° This coverage provision would seem to answer any lingering question about whether the CVRA applies before charging. In directing that federal employees engaged in the “detection” and “investigation” of crime must respect victims’ rights, Congress wanted broad rights extending beyond just the prosecution of a case. As the district court concluded in the Epstein case, this provision “surely contemplates pre-charge application of the CVRA.”"°! OLC gamely maintains, however, that Congress was simply trying to provide that federal law enforcement agents should provide rights to victims when a criminal case moves to its prosecution phase. OLC noted the uncontroversial point that law enforcement agents “often develop a relationship of trust with crime victims during the investigation that continues as they assist crime victims in negotiating active criminal proceedings.”!©? OLC then asserted: Given this continuing active role that agents typically play during criminal prosecutions, we find the fact that the CVRA assigns responsibility to them, together with the attorney for the Government, to ... accord them their rights under the CVRA to be entirely consistent with our conclusion that those rights arise only once the Government has initiated criminal proceedings. !° But OLC’s contorted position never explains why Congress found it necessary to break out three separate phases of the criminal justice process: the “detection,” “investigation,” and “prosecution” of crime. If the congressional intent was simply to cover, for example, FBI agents or EPA agents during the post-charging phase of a case, it could have simply omitted those words from the CVRA. An FBI agent, for example, would be engaged in the “prosecution” of the case when assisting the victim after the formal filing of charges. On OLC’s reading of the statute, the words “detection” and “investigation” become meaningless, contrary to the well- known canon of construction verba cum effectu sunt accipienda, which means that, if possible, every word and every provision is to be given effect.! OLC also suggests that the “most significant” argument supporting pre-charging application of nghts is the venue provision, which allows 100 See Kylet al., supra note 136, at 615 (“Notice should be given to the fact that it applies not just to the Department of Justice, but to all ‘departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime.”” (citation omitted)). 161 Does v. United States, 817 F. Supp. 2d 1337, 1342 (S.D. Fla. 2011). 162 OLC CVRA Rights Memo, supra note 2, at 15. 163 Iq 164 See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979). HOUSE_OVERSIGHT_014066