Court rulings on pre‑indictment application of the Crime Victims' Rights Act (CVRA)

74 CASSELL ET AL. [Vol. 104 applicability to other situations), the government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims’ views on the possible details of a plea bargain. The Fifth Circuit then remanded the matter to the district court to determine the appropriate remedy for the violation of the victims’ rights.° The Fifth Circuit’s decision in Dean has been cited favorably in four recent district court decisions, which provides further support for the conclusion that the CVRA applies before charges have been filed. In United States v. Rubin,” victims of a federal securities fraud argued that they had CVRA rights even before prosecutors filed a superseding indictment covering the specific crimes affecting the victims. Citing Dean, the District Court for the Eastern District of New York agreed that the rights were expansive and could apply before charges were filed but were subject to the outer limit that the Government has at least “contemplated” charges.” Similarly, in United States v. Oakum,” the District Court for the Easter District of Virginia considered a claim that CVRA nghts did not apply until after a defendant had been convicted. In rejecting that argument, the court agreed with the Dean court that victims acquire rights even before a prosecution begins.” The District Court for the Northern District of Indiana held to the same effect in In re Petersen. There, the court held that a victim’s right to be treated with fairness and with respect for [his or her] dignity and privacy “may apply before any prosecution is underway and isn’t necessarily tied to a ‘court proceeding’ or ‘case.””’? The court, however, found that the “conclusory allegations” in the victims’ petition did not “create a plausible claim for relief under the CVRA.”’”° 8 In re Dean, 527 F.3d at 394 (intemal citations omitted). 6 Td. at 396. On remand, the district court held additional hearings in which the victims participated, satisfying their CVRA rights. See United States v. BP Prods. N. Am. Inc., 610 F. Supp. 2d 655, 660 (S.D. Tex. 2009). 70 558 F. Supp. 2d 411 (E.D.N.Y. 2008). Tl Td. at 419 (internal citation omitted). Rubin’s suggestion about limitations that apply to pre-indictment assertions of rights is discussed at notes 184-187 and 193 infra and accompanying text. 7 No. 3:08cr132, 2009 WL 790042 (E.D. Va. Mar. 24, 2009). 8 Id, "2, ™ No. 2:10-CV-298 RM, 2010 WL 5108692 (N.D. Ind. Dec. 8, 2010). ™ Td. at *2 (citing In re Dean, 527 F.3d 391, 394 (5th Cir. 2008); United States v. BP Prods. N. Am. Inc., H-07-434, 2008 WL 501321 (S.D. Tex. Feb. 21, 2008)). 7° Id. Petersen also held that one specific CVRA right—the right to confer—only applies after charges have been filed. Jd. But the authorities Petersen cites for that proposition prove no such thing. Confusingly, Petersen cited the Fifth Circuit’s ruling in HOUSE_OVERSIGHT_014053