Case 9:08-cv-80736-KAM Document 88

Case 9:08-cv-80736-KAM Document 88 Entered on FLSD Docket 07)09.2011 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 and JANE DOE #2, Petitioners, vs. UNITED STATES, Respondent. UNITED STATES' RESPONSE TO PETITIONERS' NOTICE OF NEWLY-AVAILABLE SUPPLEMENTAL AUTHORITY Respondent, by and through its undersigned counsel, files its Response to Petitioners' Notice of Newly-Available Supplemental Authority, and states: On June 17, 2011, petitioners filed their Notice of Newly-Available Supplemental Authority in Support of Their Motion for Finding of Violations of the Crimes Victims Rights Act (DE 85). The supplemental authority is the June 6, 2011 letter of Senator Jon Kyl to the Attorney General of the United States, regarding the issuance of an opinion by the Department of Justice's Office of Legal Counsel, in which the OW expressed its interpretation of when rights under the CVRA applied. Senator Kyl disagreed with the interpretation of the CVRA in the OLC opinion. Petitioners ask the Court to consider Senator Kyl's June 6, 2011 in determining whether rights under the CVRA attached in the absence of a formal charge being filed. Senator Kyl's letter cannot be considered by this Court as legislative history because it was written in 2011, seven years after the enactment of the CVRA, Pub. L. 108-405, 118 Stat. 2261 (Oct. 30, 2004). In Bruesewitz v. Wveth, LLC, 131 S.Ct. 1068 (2011), the Supreme EFTA01098362 Case 9:08-cv-80736-KAM Document 88 Entered on FLSD Docket 07)09.2011 Page 2 of 3 Court observed: Post-enactment legislative history (a contradiction in terms) is not a legitimate tool of statutory interpretation. See Jones v. United States, 526 U.S. 227, 238, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999); United States v. Mine Workers, 330 U.S. 258, 281-282, 67 S.Ct. 677, 91 L.Ed. 884 (1947). Real (pit-enactment) legislative history is persuasive to some because it is thought to shed light on what legislators understood an ambiguous statutory text to mean when they voted to enact it into law. See Exxon Mobil Cap. v. Allapattah Services, Inc., 545 U.S. 546, 568, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005). But post-enactment legislative history by definition "could have had no effect on the congressional vote," District of Columbia v. Heller, 554 U.S. 570, 605, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In Clark v. Securities Industry Ass'n 479 U.S. 388, 407 (1987), the Supreme Court refused to give substantial weight to a statement made by the sponsor of a law placed into the Congressional Record ten days after the law was passed. See also Auburn Housing Authority v. Martinez, 277 F.3d 138, 149 n.5 (2nd Cir. 2002)("However, precedent constrains us from giving weight to such post-enactment statements"(citations omitted)). Senator Kyl's letter is entitled to no weight in this Court's interpretation of the CVRA. Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4ih Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter.lee®usdoj.gov 2 EFTA01098363 Case 9:08-cv-80736-KAM Document 88 Entered on FLSD Docket 07)09:2011 Page 3 of 3 Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 9, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney SERVICE LIST Jane Does 1 and 2 v. United States, Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Bradley J. Edwards, Esq., Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Fax: (954) 524-2822 E-mail: bradApathtojustice.com Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, Utah 84112 (801) 585-5202 Fax: (801) 585-6833 E-mail: [email protected] Attorneys for Jane Doe # 1 and Jane Doe # 2 3 EFTA01098364