Analysis of OLC Memorandum on Victim Rights Under the CVRA

78 CASSELL ET AL. [Vol. 104 without interfering in the investigation. Generally, this point in time is defined by the opening of a criminal investigation.”** Given the way the two statutes work, it would make no sense to artificially confine the CVRA’s reach until after the filing of a criminal complaint. Before then, victims will have often received information from the Department about the status of the investigation. They might wish to confer with prosecutors about how the case is proceeding, and the CVRA extends to them a right to confer.” Similarly, while the Department is notifying victims about the services they may receive and the status of an investigation, it is important that the victims be treated fairly. The CVRA extends the right to be treated fairly.!°° Indeed, it would be absurd to think that Congress wanted to permit the Justice Department to treat crime victims unfairly until criminal charges have been filed. Instead of recognizing Congress’s intent, OLC’s 2011 memorandum simply cites to a series of cases in which courts concluded that a victim of uncharged conduct should not be afforded statutory protections.'°! Yet none of these cases—United States v. Turner,'°? Searcy v. Paletz,'® or Searcy v. Skinner'°*—provide strong support for OLC’s position. Turner is a particularly poor fit. Although OLC’s memorandum characterizes Turner as excluding victims of uncharged conduct,’ 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.!°° 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 °8 ATTORNEY GENERAL GUIDELINES, supra note 52, at 7 (internal citations omitted), see also 42 U.S.C. § 10607(b). °° 18 U.S.C. § 3771(a)(5) (2012) (preserving “[t]he reasonable right to confer with the attorney for the Government in the case”). ° Td. § 3771(a\(8) (preserving “[t]he right to be treated with fairness and with respect for the victim’s dignity and privacy”). °l OLC CVRA Rights Memo, supra note 2, at 6 n.6. ° 367 F. Supp. 2d 319 (E.D.N.Y. 2005). 3 No. 6:07-1389-GRA-WMC, 2007 WL 1875802 (D.S.C. June 27, 2007). 4 No. 6:06-1418-GRA-WMC, 2006 WL 1677177 (D.S.C. June 16, 2006). °5 OLC CVRA Rights Memo, supra note 2, at 6 n.6. °° 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.”). HOUSE_OVERSIGHT_014057