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104 J. Crim. L. & Criminology 59, *73

Because crime victims lack a right to appointed counsel, many victims have difficulty litigating the scope of their rights. 62
But in a few cases, victims have been able to secure counsel to argue that they have rights in the criminal justice process during
the investigation of federal crimes. When those cases have reached the issue of whether the CVRA applies before charges have
been filed, courts have uniformly agreed with the victims' position.

Perhaps the leading case to date to assess this question is the Fifth Circuit's decision in In re Dean. 63 There, a wealthy
corporate criminal defendant reached a generous plea deal with the Government - a deal that the Government filed for approval
with the district court without conferring with the victims. Citing procedural rights under the CVRA, the victims requested that
the trial court reject the plea agreement. 64 The District Court for the Southern District of Texas specifically concluded that
victims' CVRA rights could apply during the investigation of the crime: "There are clearly rights under the CVRA that apply
before any prosecution is underway." 65 The district court concluded, however, that the Government had not violated the
CVRA because it had secured judicial permission to dispense with notification to victims. 66

The victims sought appellate review in the Fifth Circuit. 67 There, the court concurred with the district court that CVRA rights
apply before trial. Unlike the district court, however, it held that the Government had violated the victims' rights:

The district court acknowledged that "there are clearly rights under the CVRA that apply before any prosecution is underway."
Logically, this includes the CVRA's establishment of victims' "reasonable right to confer with the attorney for the
Government." At least in the posture of this case (and we do not speculate on the [*74] 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. 68

The Fifth Circuit then remanded the matter to the district court to determine the appropriate remedy for the violation of the
victims' rights. 69

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, 70 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

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62 John W. Gillis & Douglas E. Beloof, The Next Step for a Maturing Victim Rights Movement: Enforcing Crime Victim Rights in the
Courts, 33 McGeorge L. Rev. 689, 693 (2002).

63 527 F.3d 391 (5th Cir. 2008). Other aspects of the case are discussed in Paul G. Cassell & Steven Joffee, The Crime Victims' Expanding
Role in a System of Public Prosecution: A Response to the Critics of the Crime Victims' Rights Act, 105 Nw. U. L. Rev. Colloquy 164, 172-76
(2011).

64 In re Dean, 527 F.3d at 392.

65 United States v. BP Prods. N. Am. Inc., No. H-07-434, 2008 WL 501321, at 11 (S.D. Tex. Feb. 21, 2008).

66 Id. at 1, 19.

67 For discussion of the difficulties crime victims face to obtain appellate review of their claims, see generally Paul G. Cassell, Protecting
Crime Victims in Federal Appellate Courts: The Need to Broadly Construe the Crime Victims' Rights Act's Mandamus Provision, 87 Denv.
U. L. Rev. 599 (2010).

68 In re Dean, 527 F.3d at 394 (internal citations omitted).

69 Id. 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).

DAVID SCHOEN

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