In re: Courtney Wild ( 2020 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13843
________________________
D.C. Docket No. 9:08-cv-80736-KAM
In re: COURTNEY WILD,
Petitioner.
________________________
On Petition for Writ of Mandamus to the United States District Court for the
Southern District of Florida
________________________
(April 14, 2020)
Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.
NEWSOM, Circuit Judge:
This case, which is before us on a petition for writ of mandamus, arises out
of a civil suit filed under the Crime Victims’ Rights Act of 2004. Petitioner
Courtney Wild is one of more than 30 women—girls, really—who were victimized
by notorious sex trafficker and child abuser Jeffrey Epstein. In her petition, Ms.
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Wild alleges that when federal prosecutors secretly negotiated and entered into a
non-prosecution agreement with Epstein in 2007, they violated her rights under the
CVRA—in particular, her rights to confer with the government’s lawyers and to be
treated fairly by them.
Despite our sympathy for Ms. Wild and others like her, who suffered
unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems,
affirmatively misled—by government lawyers, we find ourselves constrained to
deny her petition. We hold that at least as matters currently stand—which is to say
at least as the CVRA is currently written—rights under the Act do not attach until
criminal proceedings have been initiated against a defendant, either by complaint,
information, or indictment. Because the government never filed charges or
otherwise commenced criminal proceedings against Epstein, the CVRA was never
triggered. It’s not a result we like, but it’s the result we think the law requires.
I
The facts underlying this case, as we understand them, are beyond
scandalous—they tell a tale of national disgrace.
Over the course of eight years, between 1999 and 2007, well-heeled and
well-connected financier Jeffrey Epstein and multiple coconspirators sexually
abused more than 30 minor girls, including our petitioner, in Palm Beach, Florida
and elsewhere in the United States and abroad. Epstein paid his employees to find
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minor girls and deliver them to him—some as young as 14. Once Epstein had the
girls, he either sexually abused them himself, gave them over to be abused by
others, or both. Epstein, in turn, paid bounties to some of his victims to recruit
other girls into his ring.
Following a tip in 2005, the Palm Beach Police Department and the FBI
conducted a two-year investigation of Epstein’s conduct. After developing
substantial incriminating evidence, the FBI referred the matter for prosecution to
the United States Attorney’s Office for the Southern District of Florida. Beginning
in January 2007, and over the course of the ensuing eight months, Epstein’s
defense team engaged in extensive negotiations with federal prosecutors in an
effort to avoid indictment. At the same time, prosecutors were corresponding with
Epstein’s known victims. As early as March 2007, they sent letters advising each
one that “as a victim and/or witness of a federal offense, you have a number of
rights.” The letters, which the government distributed over the course of about six
months, went on to enumerate the eight CVRA rights then in force—including, as
particularly relevant here, “[t]he reasonable right to confer with the attorney for the
[Government] in the case” and “the right to be treated with fairness and with
respect for the victim’s dignity and privacy.”
By May 2007, government lawyers had completed both an 82-page
prosecution memo and a 53-page draft indictment alleging that Epstein had
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committed numerous federal sex crimes. In July, Epstein’s lawyers sent a detailed
letter to prosecutors in an effort to convince them that, in fact, Epstein hadn’t
committed any federal offenses. By September, the sides had exchanged multiple
drafts of what would become an infamous non-prosecution agreement (“NPA”).
Pursuant to their eventual agreement, Epstein would plead guilty in Florida court to
two state prostitution offenses, and, in exchange, he and any coconspirators (at
least four of whom have since been identified) would receive immunity from
federal prosecution. 1 In June 2008, Epstein pleaded guilty to the state crimes as
agreed and was sentenced to 18 months’ imprisonment, 12 months’ home
confinement, and lifetime sex-offender status.
The district court found that “[f]rom the time the FBI began investigating
Epstein until September 24, 2007”—when the government formally executed the
NPA with Epstein—federal prosecutors “never conferred with the victims about
a[n] NPA or told the victims that such agreement was under consideration.” Doe 1
v. United States, 359 F. Supp. 3d 1201, 1208 (S.D. Fla. 2019). Worse, it appears
that prosecutors worked hand-in-hand with Epstein’s lawyers—or at the very least
1
The agreement also contained several provisions concerning Epstein’s victims. The
government, for instance, agreed to provide a list of known victims to Epstein and, “in
consultation with and subject to the good faith approval of Epstein’s counsel,” to “select an
attorney representative” for the victims, to be “paid for by Epstein.” Epstein agreed not to
contest liability or damages in a victim’s civil suit, “so long as the identified individual elect[ed]
to proceed exclusively under 18 U.S.C. § 2255, and agree[d] to waive any other claim for
damages.” An odd set-up—and one that, it seems to us, was likely calculated to quickly and
quietly resolve as many victim suits as possible.
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acceded to their requests—to keep the NPA’s existence and terms hidden from
victims. The NPA itself provided that “[t]he parties anticipate that this agreement
will not be made part of any public record” and, further, that “[i]f the United States
receives a Freedom of Information Act request or any compulsory process
commanding the disclosure of the agreement, it will provide notice to Epstein
before making that disclosure.” Moreover, at approximately the same time that the
sides concluded the NPA, they began negotiating about what prosecutors could
(and couldn’t) tell victims about the agreement. Seemingly in deference to
Epstein’s lawyers’ repeated requests, the government held off—for nearly an entire
year—on notifying Epstein’s victims of the NPA’s existence.
And to be clear, the government’s efforts seem to have graduated from
passive nondisclosure to (or at least close to) active misrepresentation. In January
2008, for example, approximately four months after finalizing and executing the
NPA, the government sent a letter to petitioner stating that Epstein’s case was
“currently under investigation,” explaining that “[t]his can be a lengthy process,”
and “request[ing her] continued patience while [it] conduct[ed] a thorough
investigation.” The government sent an identical letter to another victim in May
2008, some eight months after inking the NPA. 2
2
The government contends that these letters were technically accurate because the already-
signed NPA remained under review by senior members of the Department of Justice. See Br. in
Opp. to Pet. at 4 n.1.
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If secrecy was the goal, it appears to have been achieved—there is no
indication that any of Epstein’s victims were informed about the NPA or his state
charges until after he pleaded guilty. On the day that Epstein entered his guilty
plea in June 2008, some (but by no means all) victims were notified that the federal
investigation of Epstein had concluded. But it wasn’t until July 2008—during the
course of this litigation—that petitioner learned of the NPA’s existence, and until
August 2008 that she finally obtained a copy of the agreement.
We are doubtlessly omitting many of the sad details of this shameful story.
For our purposes, we needn’t discuss the particulars of Epstein’s crimes, or the fact
that the national media essentially ignored for nearly a decade the jailing of a
prominent financier for sex crimes against young girls. 3 Today, the public facts of
the case are well known—Epstein was eventually indicted on federal sex-
trafficking charges in the Southern District of New York, and in August 2019,
while awaiting trial, he was found dead in his jail cell of an apparent suicide.
II
In July 2008, petitioner brought suit in the United States District Court for
the Southern District of Florida, styling her initial filing an “Emergency Victim’s
3
Cf. David Folkenflick, A Dead Cat, A Lawyer’s Call And A 5-Figure Donation: How Media
Fell Short on Epstein, NATIONAL PUBLIC RADIO (Aug. 22, 2019, 6:06 PM),
https://www.npr.org/2019/08/22/753390385/a-dead-cat-a-lawyers-call-and-a-5-figure-donation-
how-media-fell-short-on-epstei.
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Petition for Enforcement of Crime Victim’s Rights Act.” As the district court
explained, “because no criminal case was pending” at the time—no federal charges
having been filed against Epstein or anyone else—petitioner “filed [her] petition as
a new matter . . . which the Clerk of Court docketed as a civil action.” Does v.
United States, 817 F. Supp. 2d 1337, 1341 n.4 (S.D. Fla. 2011). Petitioner alleged
that she was a “crime victim” within the meaning of the CVRA and that by
keeping her in the dark about their dealings with Epstein, federal prosecutors had
violated her rights under the CVRA—in particular, her rights “to confer with the
attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5), and “to be
treated with fairness and with respect for [her] dignity and privacy,” id.§ 3771(a)(8). 4
Over the course of the ensuing decade, the district court issued a number of
significant rulings. For our purposes, three of the court’s orders are particularly
important.
Initially, in 2011 the district court “addresse[d] the threshold issue whether
the CVRA attaches before the government brings formal charges against the
defendant.” Does, 817 F. Supp. 2d at 1341. The court held that “it does because
the statutory language clearly contemplates pre-charge proceedings.” Id. As
4
A second petitioner joined the suit shortly after it was filed. For simplicity’s sake—and to
avoid confusion—we will refer to “petitioner’s” suit, in the singular.
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relevant here, the district court relied principally on two CVRA provisions in so
holding. First, it pointed to 18 U.S.C. § 3771(c)(1), which the parties here have
called the Act’s “coverage” provision. That subsection—of which much more
later—states that “[o]fficers and employees of the Department of Justice and other
departments and agencies of the United States engaged in the detection,
investigation, or prosecution of crime shall make their best efforts to see that crime
victims are notified of, and accorded, the rights described in subsection (a).” The
district court held that “[s]ubsection (c)(1)’s requirement that officials engaged in
‘detection [or] investigation’ afford victims the rights enumerated in subsection (a)
surely contemplates pre-charge application of the CVRA.” Does, 817 F. Supp. 2d
at 1342. Second, the court pointed to subsection (d)(3), which the parties here call
the “venue” provision and which states that a crime victim seeking to vindicate his
or her rights under the CVRA must file a “motion” either “in the district court in
which a defendant is being prosecuted or, if no prosecution is underway, in the
district court in the district in which the crime occurred.” If, the district court
reasoned, “the CVRA’s rights may be enforced before a prosecution is underway,
then, to avoid a strained reading of the statute, those rights must attach before a
complaint or indictment formally charges the defendant with the crime.” Does,
817 F. Supp. 2d at 1342. Finally, the district court cited In re Dean, in which the
Fifth Circuit had observed that “[a]t least in the posture of th[e] case” before it—
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the court emphasized that it wasn’t “speculat[ing] on the applicability to other
situations”—the victim’s right to confer with prosecutors applied pre-charge. 527
F.3d 391, 394 (5th Cir. 2008). Having “determined . . . as a matter of law [that] the
CVRA can apply before formal charges are filed,” the district court here
“defer[red]” ruling on the question whether federal prosecutors had violated the
Act until the parties could conduct additional discovery. Does, 817 F. Supp. 2d at
1343.
Following another eight years of litigation, the district court issued a pair of
rulings that prompted the mandamus petition now before us. In February 2019, the
court found that the government had infringed petitioner’s CVRA rights. See Doe
1, 359 F. Supp. 3d at 1222. In particular, the court held that federal prosecutors
violated the Act by “enter[ing] into a[n] NPA with Epstein without conferring with
Petitioner[] during its negotiation and signing.” Id. at 1219. “Had the Petitioner[]
been informed about the Government’s intention to forego federal prosecution of
Epstein in deference to him pleading guilty to state charges,” the district court
emphasized, she “could have conferred with the attorney for the Government and
provided input.” Id. at 1218. The court concluded that it was precisely “this type
of communication between prosecutors and victims that was intended by the
passage of the CVRA.” Id. at 1291.
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Having found CVRA violations, the court directed the parties—which by
then included Epstein as an intervenor—to brief “the issue of what remedy, if any,
should be applied.” Id. at 1222. In response, petitioner proposed multiple
remedies: (1) rescission of the NPA; (2) an injunction against further CVRA
violations; (3) an order scheduling a victim-impact hearing and a meeting between
victims and Alexander Acosta, the former United States Attorney for the Southern
District of Florida; (4) discovery of certain grand-jury materials, records regarding
prosecutors’ decision to enter into the NPA, and files concerning law-enforcement
authorities’ investigation of Epstein; (5) mandatory CVRA training for employees
of the Southern District’s United States Attorney’s office; and (6) sanctions,
attorneys’ fees, and restitution. In August 2019, while the court was considering
the parties’ briefing regarding remedies, Epstein died of an apparent suicide; his
death prompted another round of briefing on the issue of mootness.
In September 2019, having considered the parties’ briefing and the impact of
Epstein’s death, the district court dismissed petitioner’s suit, denying each of her
requested remedies. See Doe 1 v. United States, 411 F. Supp. 3d 1321 (S.D. Fla.
2019). In its order, the district court made a number of rulings. First, it held that
Epstein’s death mooted any claim regarding the NPA’s continuing validity, as he
was no longer subject to prosecution. See id. at 1326. Relatedly, the court held
that it lacked jurisdiction to consider petitioner’s claim regarding the validity of the
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NPA as it applied to Epstein’s coconspirators; any opinion regarding that issue, the
court concluded, would be merely advisory because the coconspirators—as non-
parties to the suit—couldn’t be estopped from asserting the NPA’s validity at any
future prosecution. See id. Second, the court denied petitioner’s request for an
injunction on the ground that she had failed to show “continuing, present adverse
effects” or any “real and immediate” threat of future CVRA violations. Id. at
1328. Third, the court rejected petitioner’s requests for a victim-impact hearing
and a meeting with Acosta on the grounds that petitioner had already participated
in an Epstein-related hearing in New York, that the Epstein prosecution had
concluded, and that the government had already agreed to confer with victims
concerning any ongoing investigation of Epstein’s coconspirators. See id. at 1328–
29. Fourth, the court denied petitioner’s discovery requests for grand-jury
materials and investigative files. See id. at 1329–40. Fifth, the court declined to
order “educational remedies,” as the government had already agreed to implement
CVRA training for employees of the Southern District’s United States Attorney’s
office. Id. at 1330. And finally, the court rejected petitioner’s request for
sanctions, fees, and restitution. See id. at 1330–31.
Seeking review of the district court’s order refusing every remedy that she
had sought, petitioner filed—as the CVRA directs—a petition for writ of
mandamus with this Court. See 18 U.S.C. § 3771(d)(3) (stating that “[i]f the
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district court denies the relief sought,” a victim “may petition the court of appeals
for a writ of mandamus”). The government filed a “brief in response” in which it
not only opposed petitioner’s arguments on the merits, but also raised several
threshold arguments concerning the scope of the CVRA and the circumstances in
which rights under the Act are judicially enforceable. In reply, petitioner
contended (among other things) that by failing to “cross appeal,” the government
had waived its arguments about the CVRA’s applicability and enforceability. 5
* * *
This case presents a host of issues, many of first impression. Before
jumping in, we begin with an introductory summary of the CVRA.
III
The CVRA is a compact statute, occupying but one section (and only two
pages) of the United States Code. See 18 U.S.C. § 3771. The entire Act comprises
just six subsections, the pertinent portions of which we will summarize briefly.
The Act opens, in subsection (a), with a catalogue of “rights” that federal
law guarantees to “crime victims.” (The Act separately defines the term “crime
victim” to mean “a person directly and proximately harmed as a result of the
commission of a Federal offense.” Id. § 3771(e)(2)(A).) The version of the CVRA
5
Although the CVRA instructs the court of appeals to “take up and decide” any mandamus
petition “forthwith within 72 hours,” the parties here stipulated to an extended briefing and
decision schedule, which the CVRA authorizes. 18 U.S.C. § 3771(d)(3).
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in effect during the events in question here—between 2006 and 2008—stated as
follows:
(a) Rights of crime victims.—A crime victim has the following
rights:
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any
public court proceeding, or any parole proceeding, involving the
crime or of any release or escape of the accused.
(3) The right not to be excluded from any such public court
proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that
proceeding.
(4) The right to be reasonably heard at any public proceeding in the
district court involving release, plea, sentencing, or any parole
proceeding.
(5) The reasonable right to confer with the attorney for the
Government in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the
victim’s dignity and privacy.
18 U.S.C. § 3771(a).
Subsection (b), titled “Rights afforded,” focuses on courts’ responsibilities
under the Act. It provides—as relevant here—that “[i]n any court proceeding
involving an offense against a crime victim, the court shall ensure that the crime
victim is afforded the rights described in subsection (a).” Id. § 3771(b)(1).
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(Subsection (b)(2) pertains to habeas corpus proceedings, in which crime victims
enjoy a more limited set of rights; it isn’t relevant here.)
Subsection (c), titled “Best efforts to accord rights,” imposes obligations on
non-judicial actors. One of its constituent clauses—which we introduced earlier as
the so-called “coverage” provision—states as follows:
Officers and employees of the Department of Justice and other
departments and agencies of the United States engaged in the
detection, investigation, or prosecution of crime shall make their best
efforts to see that crime victims are notified of, and accorded, the
rights described in subsection (a).
18 U.S.C. § 3771(c)(1).
Subsection (d) addresses “Enforcement and limitations.” Several of
subsection (d)(3)’s provisions are relevant here. One—the “venue” provision—
states that “[t]he rights described in subsection (a) shall be asserted in the district
court in which a defendant is being prosecuted for the crime or, if no prosecution is
underway, in the district court in which the crime occurred.” Another provides that
“[i]f the district court denies the relief sought, the movant may petition the court of
appeals for a writ of mandamus”—and as amended in 2015, and thus before
petitioner sought review here, it goes on to clarify that in deciding any mandamus
petition under the CVRA, “the court of appeals shall apply ordinary standards of
appellate review.” Subsection (d)(6) is also relevant in two respects. First, it states
that “[n]othing in this chapter shall be construed to authorize a cause of action for
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damages.” Second, and separately, it emphasizes that “[n]othing in this chapter
shall be construed to impair the prosecutorial discretion of the Attorney General or
any officer under his direction.”
Finally, subsection (f)—we’ve already introduced subsection (e), which
defines the term “crime victim”—instructs the Attorney General to “promulgate
regulations to enforce the rights of crime victims and to ensure compliance by
responsible officials with the obligations” concerning those victims. Id.§ 3771(f)(1).
With that primer, we proceed to address petitioner’s case.
IV
Petitioner contends—and as already explained, the undisputed facts show—
that federal prosecutors in the Southern District of Florida negotiated “a secret
non-prosecution agreement” with Epstein, and that “[f]rom the time that the FBI
began investigating Epstein through the consummation of the secret NPA, the
Government never conferred with Epstein’s victims about the NPA [or] even told
them that such an agreement was under consideration.” Petition for Writ of
Mandamus at 4–5. By keeping her (and others) in the dark concerning Epstein’s
NPA, petitioner asserts, the government violated the CVRA.
The unique circumstances of this case—and in particular, the fact that
Epstein was never charged in the Southern District of Florida—tee up what the
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district court correctly called a “threshold” question: Does the CVRA apply in the
period before criminal proceedings are initiated, either by criminal complaint,
information, or indictment? If it does, then we must proceed to consider a cascade
of logically subsequent questions—among them, (1) whether the Act authorized
the district court to rescind the NPA, both generally and, more specifically, as
applied to Epstein’s alleged coconspirators; (2) whether petitioner was entitled to
discovery of certain grand-jury materials, DOJ records pertaining to prosecutors’
decision to enter into the NPA, and FBI files concerning the Epstein investigation;
(3) whether petitioner’s participation in an Epstein-related victim-impact hearing in
New York effectively moots her request for relief here; and (4) whether federal law
entitles petitioner to recover attorneys’ fees. If, by contrast, the CVRA doesn’t
apply before the commencement of criminal proceedings, then our inquiry is at an
end. 6
6
Before considering the merits of the question whether the CVRA applies before the initiation of
criminal proceedings, we must briefly address a front-end procedural issue. Petitioner contends
(Reply in Supp. of Pet. at 11–14) that the government waived any argument that the CVRA
doesn’t apply here when it failed to file a “cross-appeal” from the district court’s 2011 order,
which (as already explained) held “as a matter of law [that] the CVRA can apply before formal
charges are filed.” Does, 817 F. Supp. 2d at 1343. We reject petitioner’s waiver argument. It’s
true that in the usual case, the government’s failure to cross-appeal the district court’s adverse
2011 order might well have precluded our review of that decision. See Greenlaw v. United
States, 554 U.S. 237, 244–45 (2008). This, though, isn’t the usual case. Petitioner didn’t file an
“appeal”; rather, as the CVRA requires, she filed a petition for writ of mandamus. See 18 U.S.C.
§ 3771(d)(3); see also 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3932 (3d ed. 2019) (explaining that a mandamus petition is “an original application
to the court of appeals”). The question before us, therefore, is not whether to affirm or reverse
the district court’s orders, but rather whether to grant or deny the petition—and, it seems to us,
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Whether the CVRA applies prior to the initiation of criminal proceedings is
not just a threshold question, but also a question of first impression in this Circuit.
The Fifth Circuit has stated—albeit in dictum, without meaningful explanation,
and seemingly without the benefit of adversarial testing—that the Act can apply
before criminal proceedings begin. See In re Dean, 527 F.3d 391, 934 (5th Cir.
2008). The Sixth Circuit has deemed it “uncertain” whether CVRA protections
apply “prior to [the] filing of . . . charges.” In re Acker, 596 F.3d 370, 373 (6th
Cir. 2010). The district courts that have considered the question are divided.
Compare, e.g., United States v. Oakum, No. 3:08CR132, 2009 WL 790042, at *2
(E.D. Va. Mar. 24, 2009) (holding that CVRA rights can attach prior to the
commencement of criminal proceedings), with, e.g., United States v. Daly, No.
3:11CR121 AWT, 2012 WL 315409, at *4 (D. Conn. Feb. 1, 2012) (holding to the
contrary).
As already explained, the district court here concluded that the CVRA can
apply before the initiation of criminal proceedings—“pre-charge,” for short—and,
accordingly, that petitioner enjoyed the protections of the Act during the period
the government is entitled to raise any argument it likes in support of its position that we should
deny. And while the CVRA (as amended in 2015 to resolve a then-existing circuit split) directs
us to “apply ordinary standards of appellate review” in deciding the mandamus petition, see 18
U.S.C. § 3771(d)(3)—rather than the heightened “clear usurpation of power or abuse of
discretion” standard that typically applies in the mandamus context, In re Loudermilch, 158 F.3d
1143, 1145 (11th Cir. 1998)—it does not direct us to employ the rules of procedure that would
apply if this were a typical appeal.
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that preceded the execution of Epstein’s NPA. In particular, petitioner asserts in
these proceedings that the government violated her “reasonable right to confer”
with the lead prosecutor, 18 U.S.C. § 3771(a)(5), and her right “to be treated with
fairness,” id. § 3771(a)(8)—neither of which, she says, is limited by its terms to the
post-charge phase of a criminal prosecution. 7 In support of her position that
CVRA rights can apply before criminal proceedings begin, petitioner points (as did
the district court) to § 3771(c)(1)—which refers to federal-government agencies
engaged in the “detection [and] investigation” of crime, in addition to its
“prosecution”—and to § 3771(d)(3)—which, in specifying the venue where a
victim should seek relief under the Act, refers to the eventuality that “no
prosecution is underway.”
The interpretation of the CVRA that petitioner advances, and that the district
court adopted, is not implausible; the CVRA could be read to apply pre-charge.
We conclude, though—reluctantly, especially given the mistreatment that
petitioner seems to have suffered at the hands of federal prosecutors—that the Act
is neither best nor most naturally read that way. For reasons that we will explain,
we hold that (1) the CVRA’s text and structure, (2) the historical context in which
7
Petitioner also contends (albeit only in passing) that the government violated her right to
“timely notice of any public court proceeding,” 18 U.S.C. § 3771(a)(2), in connection with the
June 30, 2008 state-court hearing at which Epstein pleaded guilty to Florida prostitution
offenses. See Pet. at 54.
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the Act was passed, and (3) the prosecutorial-discretion principles that the Act was
designed to safeguard—and which, we think, petitioner’s interpretation would
compromise—demonstrate that its protections apply only after the initiation of
criminal proceedings. If Congress believes that we have misinterpreted the
CVRA—or, for that matter, even if it believes that we have correctly interpreted
the statute as currently written but that its scope should be expanded—then it
should amend the Act to make its intent clear.
A
In construing the CVRA, “we begin, as we must, with a careful examination
of the statutory text,” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,
1721 (2017), looking “to the particular statutory language at issue, as well as the
language and design of the statute as a whole,” K Mart Corp. v. Cartier, Inc., 486
U.S. 281, 291 (1988). On balance, we conclude that the Act’s terms—including
the provisions on which petitioner relies—demonstrate that its protections apply
only after the commencement of criminal proceedings.
1
We begin where petitioner does, with the catalogue of “rights”—quoted in
full above—that the CVRA guarantees to “crime victims.” (As already noted, the
Act defines the term “crime victim”—more on that later.) Petitioner relies chiefly
on § 3771(a)(5)’s guarantee of a “reasonable right to confer with the attorney for
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the Government in the case,” and § 3771(a)(8)’s guarantee of the “right to be
treated with fairness.” She contends that by failing to inform her—and worse,
affirmatively misleading her—about its ongoing negotiations with Epstein, the
government violated both provisions. We will address subsections (a)(5) and (8) in
due course, but because “[s]tatutory construction . . . is a holistic endeavor,” and
because “[a] provision that may seem ambiguous in isolation is often clarified by
the remainder of the statutory scheme,” United Sav. Ass’n of Tex. v. Timbers of
Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988), we first examine the
balance of § 3771(a). 8
In the main, anyway—and there isn’t any real dispute about this—the
CVRA’s enumeration seems to focus on the post-charge phase of a criminal
prosecution, and in particular on ensuring that crime victims have notice of (and an
opportunity to be heard in) pending criminal proceedings. Indeed, six of the eight
rights listed in § 3771(a)—all except for those specified in subsections (5) and
(8)—either expressly refer to or necessarily presuppose the existence of an ongoing
criminal proceeding. Subsections (a)(2), (3), (4), and (7) leave no doubt
8
Accord, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts at 167 (2012) (quoting Sir Edward Coke, The First Part of the Institutes of the Laws of
England, or a Commentary upon Littleton § 728, at 381a (1628; 14th ed. 1791), for the
proposition that “[i]f any section [of a law] be intricate, obscure or doubtful, the proper mode of
discovering its true meaning is by comparing it with the other sections, and finding out the sense
of one clause by the words or obvious intent of the other”).
20
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whatsoever—all of them apply, by their plain terms, to “proceeding[s],” “public
proceedings,” or “public court proceedings.” Not surprisingly, there seems to be
general agreement that these “proceeding”-focused rights apply only after the
filing of a complaint or criminal charges. See Reply in Supp. of Pet. at 17; Paul G.
Cassell, et al., Crime Victims’ Rights During Criminal Investigations? Applying
the Crime Victims’ Rights Act Before Criminal Charges Are Filed, 104 J. of Crim.
L. and Criminology 59, 71 (2014).
Subsections (a)(1) and (6) aren’t quite as clear, but they too are best
understood as specifying rights that attach only after criminal proceedings have
begun. Subsection (1) guarantees a crime victim’s right to protection from “the
accused.” § 3771(a)(1). Both in ordinary spoken English and as a legal term of
art, the word “accused” refers to someone against whom criminal proceedings have
been commenced. See, e.g., Webster’s New International Dictionary 17 (2d ed.
1944) (defining “accused” as “one charged with an offense; the defendant in a
criminal case”); see also Michigan v. Jackson, 475 U.S. 625, 632 (1986) (“[A]fter
a formal accusation has been made . . . a person who had previously been just a
‘suspect’ has become an ‘accused’ within the meaning of the Sixth
Amendment . . . .”). Subsection (a)(6), which guarantees a victim’s right to “full
and timely restitution,” likewise presupposes the initiation—and indeed perhaps
the maturation or even conclusion—of criminal proceedings. Black’s, for instance,
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defines the term “restitution,” in relevant part, to mean “[c]ompensation for loss;
esp., full or partial compensation paid by a criminal to a victim, not awarded in a
civil trial for tort, but ordered as part of a criminal sentence or as a condition of
probation.” Black’s Law Dictionary 1507 (10th ed. 2014).
So, it seems to us, the rights enumerated in subsections (a)(1), (2), (3), (4),
(6), and (7) are properly understood as applying only after the initiation of criminal
proceedings. And again, petitioner doesn’t really contend otherwise. Instead, she
focuses on subsections (a)(5) and (8), which she says are framed broadly enough
that they can be understood to apply pre-charge. Let’s take a closer look.
Subsection (a)(5) guarantees a crime victim the “reasonable right to confer
with the attorney for the Government in the case.” Petitioner and her lead counsel
(in his academic writings) emphasize that this provision refers to the attorney
handling “the case” rather than “the charges,” Reply in Supp. of Pet. at 17, and
they assert that the term “case” can “refer both to a judicial case before a court and
an investigative case pursued by a law enforcement officer,” Cassell et al., supra,
at 72 (emphasis added). 9 Although it’s true, at least in the abstract, that the term
9
Ordinarily, of course, we don’t impute a lawyer’s out-of-court positions to his client—and we
needn’t do so even in this case. We cite Professor Cassell’s article here (and elsewhere) for
several reasons: (1) because he is not only petitioner’s counsel but also one of the nation’s
foremost authorities on victims’-rights issues in general and the CVRA in particular; (2) because
the article is wholly consistent with petitioner’s position as articulated in her brief and at oral
argument; and (3) because it expands on and deepens petitioner’s in-court arguments and thus
ensures that we are considering the strongest version of her position.
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“case” can mean either thing, in legal parlance the judicial-case connotation is
undoubtedly primary. See, e.g., Black’s, supra, at 258–59 (defining “case” first as
“[a] civil or criminal proceeding, action, suit or controversy at law or in equity”
and only second as “[a] criminal investigation”); Webster’s New International,
supra, at 415 (defining “case” as used in “[l]aw” as “a suit or action in law or
equity; a cause”). Moreover, and in any event, two contextual considerations
convince us that, as used in subsection (a)(5), the term “case” refers to an ongoing
judicial proceeding, not a law-enforcement investigation.
First, the Supreme Court has held that in the criminal context, a “case” does
not “encompass the entire criminal investigatory process,” but rather “at the very
least requires the initiation of legal proceedings.” Chavez v. Martinez, 538 U.S.
760, 766 (2003). Notably, in so holding, the Court drew on longstanding tradition,
citing its now nearly 150-year-old decision in Blyew v. United States for the
proposition that the word “case” is synonymous with the word “cause” and
“mean[s] a proceeding in court, a suit, or action.” 80 U.S. (13 Wall.) 581, 595
(1872). Second, and separately, subsection (a)(5) refers not just to “the case” in
general, but more particularly to “the attorney for the Government in the case.”
While it is undoubtedly true that government lawyers may be involved in a
criminal investigation pre-charge, the provision’s reference to a single, specific
individual—“the attorney for the Government”—indicates that the conferral right
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attaches only after proceedings have begun, at which point that particular person
will presumably be more readily identifiable. Cf. Rumsfeld v. Padilla, 542 U.S.
426, 434–35 (2004) (holding that the “use of the definite article . . . indicates that
there is generally only one” person covered). By the same token, there will surely
be many criminal investigations to which no lawyers have (yet) been assigned—let
alone a single, identifiable “attorney for the Government.” Accordingly, if, as
petitioner asserts, subsection (a)(5) was intended to apply pre-charge, during the
investigation phase, it makes little sense that Congress would have tethered the
conferral right to a single government lawyer.
On balance, therefore—and particularly in the light of subsections (a)(1),
(2), (3), (4), (6), and (7), all of which clearly apply only after the initiation of
criminal proceedings—we conclude that § 3771(a)(5)’s conferral right does not
attach during the pre-charge, investigatory phase. Rather, subsection (a)(5) is best
understood as guaranteeing a crime victim’s right to consult with the lead
prosecutor—i.e., “the attorney for the Government”—in a pending prosecution—
i.e., “the case.”10
10
See generally Wayne R. LaFave et al., Criminal Procedure § 13.1, at 849 (6th ed. 2017)
(“Under the federal victims’ rights statute [i.e., 18 U.S.C. § 3771], a crime victim is granted a
‘reasonable right to confer with the attorney for the Government in the case,’ but it is nowhere
specified that the conference must precede or concern the prosecutor’s charging decision . . . .”).
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Petitioner also relies (albeit more obliquely) on subsection (a)(8), which
vaguely guarantees a crime victim’s right “to be treated with fairness and with
respect for [his or her] dignity and privacy.” It is certainly true that this fair-
treatment right has no inherent temporal limitation—on its face, it could apply pre-
charge, post-charge, or for that matter even post-conviction. But well-established
canons of interpretation require us to interpret subsection (a)(8)’s general right to
fair treatment by reference to the subsections (and their constituent rights) that
precede it. See, e.g., Johnson v. United States, 559 U.S. 133, 139 (2010)
(“Ultimately, context determines meaning . . . .”); Gutierrez v. Ada, 528 U.S. 250,
255 (2000) (“[W]ords and people are known by their companions.”). Because the
rights enumerated in subsections (a)(1)–(7) are best understood as applying only
after the institution of criminal proceedings, subsection (a)(8)’s guarantee of
“fairness” is, too. What the Supreme Court said recently in applying noscitur a
sociis—“the well-worn Latin phrase that tells us that statutory words are often
known by the company they keep”—applies here as well: In § 3771(a), “we
find . . . both the presence of company that suggests limitation and the absence of
company that suggests breadth.” Lagos v. United States, 138 S. Ct. 1684, 1688–89
(2018).11
11
In spending pages dissecting our citations to cases applying the noscitur a sociis canon, the
dissent misses the forest for the trees. See Dissenting Op. at 98–100. The fundamental point is
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Taken as a whole, then, we conclude that the catalogue of rights specified in
§ 3771(a) are best read as applying only after the institution of criminal
proceedings.
2
We are fortified in that conclusion by the only two provisions of the Act that
speak directly to judicial enforcement of victims’ statutory rights.
The first is § 3771(b), titled “Rights afforded.” At oral argument,
petitioner’s counsel invoked subsection (b)(1) affirmatively, noting—with
emphasis—its directive that “the court shall ensure that the crime victim is
afforded the rights” enumerated in subsection (a). See Oral Arg. at 5:45–5:57.
True, but that’s only part of the story. In its entirety, subsection (b)(1) reads as
follows: “In any court proceeding involving an offense against a crime victim, the
court shall ensure that the crime victim is afforded the rights described in
subsection (a).” 18 U.S.C. § 3771(b)(1) (emphasis added). By its plain terms,
then, subsection (b)(1) empowers courts to enforce CVRA rights only during
pending criminal proceedings—of which there were none here.
simply that subsection (a)(8)’s meaning should be informed by its surrounding statutory context,
and that because subsections (a)(1)–(7) are most properly read to apply only after the
commencement of criminal proceedings, it makes sense—absent some contrary indication—to
interpret subsection (a)(8)’s vague fair-treatment provision the same way.
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The second is § 3771(d), which specifies—and strictly circumscribes—the
procedural mechanisms by which an alleged victim must assert and seek to enforce
CVRA rights. Two (related) points are worth making. As an initial matter, the Act
clearly indicates that Congress did not intend to authorize private individuals to
initiate stand-alone suits or actions, outside the confines of existing criminal
proceedings, to enforce their statutory rights. Quite the contrary, in fact—
subsection (d)(6), titled “No Cause of Action,” expressly states that “[n]othing in
this chapter shall be construed to authorize a cause of action for damages.”
§ 3771(d)(6)). Cf. Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (explaining
that “[l]ike substantive federal law itself, private rights of action to enforce federal
law must be created by Congress”).
Instead—and this is point two—subsection (d)(3) specifies that a victim
must assert his or her rights in a “motion for relief” filed in district court and
requires the court to consider and decide that “motion” promptly. 18 U.S.C.
§ 3771(d)(3). As commonly understood, a “motion” is a request filed within the
context of an ongoing judicial proceeding, not a vehicle for launching a new and
freestanding piece of litigation. 12 See, e.g., Black’s, supra, at 1168 (“‘Frequently,
12
As already explained, subsection (d)(3) states that “[t]he rights described in subsection (a)
shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if
no prosecution is underway, in the district court in which the crime occurred.” We address
below petitioner’s contention that the “if no prosecution is underway” language demonstrates
that the CVRA applies before the initiation of criminal proceedings. See infra at 33–36.
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in the progress of litigation, it is desired to have the court take some action which
is incidental to the main proceeding . . . . Such action is invoked by an application
usually less formal than the pleadings, and is called a motion.’” (quoting John C.
Townes, Studies in American Elementary Law 621 (1911)); cf. Fed. R. Civ. P. 3, 7
(distinguishing between a “motion” and a “pleading”—the latter of which is
defined to include a “complaint,” which is the prescribed vehicle for commencing
a freestanding action). 13
The facts that the CVRA (1) does not sanction freestanding suits and (2)
does prescribe mid-proceeding “motion[s]” combine—especially in conjunction
13
A third aspect of § 3771(d)(3) likewise counsels—albeit perhaps a bit more indirectly—in
favor of the conclusion that CVRA rights are intended to apply, and be enforced, only within the
context of an ongoing criminal prosecution. As already explained, under subsection (d)(3), a
crime victim’s sole recourse to this Court is via petition for writ of mandamus. See 18 U.S.C.
§ 3771(d)(3) (“If the district court denies the relief sought, the movant may petition the court of
appeals for a writ of mandamus.”). Although a petition for mandamus is “an original application
to the court of appeals,” the writ “is not an independent grant of appellate jurisdiction” but,
rather, “‘may go only in aid of appellate jurisdiction’ that exists on some other basis.” 16 Wright
& Miller, supra, § 3932 (quoting Parr v. United States, 351 U.S. 513, 520 (1956)). The
“minimum condition” for mandamus relief, therefore, is “that the case be one that may lie within
the prospective future jurisdiction of the court of appeals, or that has in fact come within its
jurisdiction in the past.” Id. When CVRA rights are asserted in the context of a criminal
proceeding, our mandamus jurisdiction is clear, because our appellate jurisdiction over the
underlying criminal proceeding (and any rulings, verdicts, and judgments rendered therein) is
clear. And the CVRA itself provides that “[i]n any appeal in a criminal case, the Government
may assert as error the district court’s denial of any crime victim’s right in the proceeding to
which the appeal relates.” 18 U.S.C. § 3771(d)(4). By contrast, in the absence of a criminal
prosecution, mandamus jurisdiction in this Court is less certain—harder to justify—simply
because it’s less certain how the case could otherwise arrive, in the form of an appeal, on our
doorstep.
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with subsection (a)’s enumeration—to indicate that the Act’s protections apply
only after the initiation of criminal proceedings. 14
3
In fairness, petitioner is not without her own textual arguments. In urging us
to hold that CVRA rights—or at least some of them—apply even before the
initiation of criminal proceedings, she relies principally on two subsections, which
the parties call the “coverage” and “venue” provisions, respectively. Neither, we
conclude, clearly demonstrates that the rights specified in the Act attach during the
pre-charge, investigative phase.
Petitioner first points to § 3771(c)(1)—the “coverage” provision—which, as
already explained, states that “[o]fficers and employees of the Department of
Justice and other departments and agencies of the United States engaged in the
detection, investigation, or prosecution of crime shall make their best efforts to see
that crime victims are notified of, and accorded, the rights described in subsection
14
It is also relevant, we think—even if more marginally so—that the drafters and ratifiers of the
Federal Rules seem to have anticipated that CVRA “motions” would be filed within the context
of an existing criminal proceeding—not as freestanding actions. The Federal Rules of Criminal
Procedure, which “govern the procedure in all criminal proceedings” in United States courts, see
Fed. R. Crim. P. 1(a)(1), expressly incorporate portions of the CVRA. In particular, Rule 60—
titled “Victim’s Rights”—implements several of the rights specified in § 3771(a), and further
(echoing § 3771(d)(3)) clarifies that “[a] victim’s rights described in these rules must be asserted
in the district where a defendant is being prosecuted for the crime.” Fed. R. Crim. P. 60(b)(4).
The Federal Rules of Civil Procedure, which “govern the procedure in all civil actions and
proceedings in the United States district courts,” see Fed. R. Civ. P. 1, contain no similar
provision, and make no reference to the CVRA.
29
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(a).” 18 U.S.C. § 3771(c)(1). From the premise that “the CVRA applies to the
‘detection [or] investigation’ of crimes,” petitioner reasons to the conclusion,
which the district court adopted, that “the Act’s drafters ‘surely contemplate[d]
pre-charge application of the CVRA.’” Reply in Supp. of Pet. at 15 (quoting Does,
817 F. Supp. 2d at 1342). We disagree for two reasons.
First, understood in proper context, it seems clear to us that subsection (c)(1)
is a “to whom” provision, not a “when” provision. That is, it clarifies that CVRA
obligations extend beyond the officers and employees of “the Department of
Justice” to include, as well, the officers and employees of “other departments and
agencies of the United States” that (like DOJ) are “engaged in the detection,
investigation, or prosecution of crime”—e.g., IRS, ICE, and TSA. Those agencies’
employees, like DOJ’s, must “make their best efforts to see that crime victims” are
afforded CVRA rights. Subsection (c)(1) doesn’t expressly speak to when CVRA
rights attach, and it certainly doesn’t clearly demonstrate that those rights attach
before the initiation of criminal proceedings. Government employees (whether of
DOJ or some other DOJ-like agency) who are involved in all three of the
referenced phases are necessarily involved post-charge. Subsection (c)(1) simply
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makes clear that the Act reaches beyond prosecutors (and DOJ) to reach other
actors in the criminal-justice system.15
Second, and more importantly, petitioner’s reliance on § 3771(c)(1) proves
entirely too much. If, as petitioner thinks subsection (c)(1) shows, CVRA rights
apply during the “detection” and “investigation” of crime, then there is no
meaningful basis—at least no meaningful textual basis—for limiting the Act’s pre-
charge application to the NPA context. To the contrary, on petitioner’s reading,
subsection (c)(1) would—to cite just a few examples—require law-enforcement
officers to “confer” with victims, subject only to a squishy “reasonable[ness]”
limitation, see § 3771(a)(5), before conducting a raid, seeking a warrant, making
an arrest, interviewing a witness, convening a lineup, or conducting an
interrogation. Absent a much clearer indication, we cannot assume that Congress
intended such a jarring result. Presumably sensing the slipperiness of their
position, petitioner and her counsel have said that courts can simply draw the line
15
Petitioner’s counsel has contended that this interpretation of § 3771(c)(1) can’t explain “why
Congress found it necessary to break out three separate phases of the criminal justice process: the
‘detection,’ ‘investigation,’ and ‘prosecution’ of crime.” Cassell et al., supra, at 87. If, he
argues, Congress’s “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” the words “detection” and
“investigation” from the Act, because those agents “would be engaged in the ‘prosecution’ of the
case when assisting the victim after the filing of formal charges.” Id. Thus, he says, our
interpretation impermissibly renders the terms “detection” and “investigation” meaningless. Id.We don’t think so. We read subsection (c)(1) not as “break[ing] out” three different phases, but
rather as attempting to broadly cover (perhaps using a belt-and-suspenders approach) all
necessary government-employee participants—in short, to ensure that the Act’s protection
extends beyond prosecutors.
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farther downstream—when, for instance, as counsel put it at oral argument, an
investigation has “matured” to the point where (as here) prosecutors “are
negotiating with defense attorneys and signing agreements.” Oral Arg. at 8:30,
9:10–9:17. “At that point at least,” counsel said, “a conferral right exists” under
subsection (a)(5). Id. at 9:10–9:17. That is a line, to be sure—and a line that
happens to capture this case—but it has no footing whatsoever in the “detection
[or] investigation” language to which petitioner points in support of her position. 16
As tempting as it might be to do so—especially on the facts before us here—we
cannot re-write, or arbitrarily circumscribe, the Act’s text simply to make it fit
petitioner’s theory.17
For these reasons, we cannot accept petitioner’s contention that § 3771(c)(1)
demonstrates that the CVRA applies before the initiation of criminal proceedings.
16
In his article on the subject, petitioner’s lead counsel offered a similar limiting construction,
which he framed this way:
CVRA rights attach when an officer or employee of the Department of Justice or
any other department or agency of the United States engaged in the detection,
investigation, or prosecution of crime has substantial evidence that an identifiable
person has been directly and proximately harmed as a result of the commission of
a federal offense . . . and in the judgment of the officer or employee, that person is
a putative victim of that offense.
Cassell et al., supra, at 92 (emphasis added). Professor Cassell’s proposal reads like a finely-
tuned statutory provision—but one that, unfortunately, Congress never enacted.
17
For reasons we will explain, the dissent’s interpretation—so far as we can discern it—suffers
from the same flaw. See infra at 51–52.
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Petitioner is on slightly stronger footing, we think, in pointing to the
CVRA’s “venue” provision, § 3771(d)(3). In relevant part, that provision states
that “[t]he rights described in subsection (a) shall be asserted in the district court in
which a defendant is being prosecuted for the crime or, if no prosecution is
underway, in the district court in which the crime occurred.” Petitioner contends—
and the district court agreed—that the “no prosecution is underway” clause must
mean that CVRA rights “‘may be enforced before a prosecution is underway’” and,
accordingly, that “‘those rights must attach before a complaint or indictment
formally charges the defendant with the crime.’” Reply in Supp. of Pet. at 15
(quoting Does, 817 F. Supp. 2d at 1342). Petitioner’s interpretation of subsection
(d)(3) is not implausible—that provision could be read to mean that CVRA rights
attach before the commencement of criminal proceedings. But it isn’t necessary,
either, and in light of the remainder of the Act’s text—and the practical
implications of petitioner’s construction, the details of which we explore below—
we are reluctant to adopt it, or at least to invest it with the significance that
petitioner does.
There are, we think, at least two alternative ways of understanding
§ 3771(d)(3). First, and perhaps most obviously, it could be read to apply to the
period of time between the initiation of criminal proceedings—which may occur as
early as the filing of a criminal complaint under Federal Rule of Criminal
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Procedure 3—and the levying of formal charges in an indictment. 18 The word
“prosecution”—on which subsection (d)(3) pivots—is a legal term of art; in
relevant part, it refers to “[t]he institution and continuance of a criminal suit [and]
the process of exhibiting formal charges against an offender before a legal tribunal,
and pursuing them to final judgment on behalf of the state or government, as by
indictment or information.” Webster’s New International, supra, at 1987.
Moreover, the law is clear, at least for Sixth Amendment right-to-counsel
purposes, that a “prosecution” does not begin with the criminal complaint’s filing.
See United States v. Alvarado, 440 F.3d 191, 199–200 (4th Cir. 2006) (“The filing
of a federal criminal complaint does not commence a formal prosecution.”); see
also, e.g., United States v. States, 652 F.3d 734, 741–42 (7th Cir. 2011) (same);
United States v. Boskic, 545 F.3d 69, 82–84 (1st Cir. 2008) (same). Rather, the
Sixth Amendment right does not attach—because a “prosecution” does not
begin—until, at the earliest, a suspect’s “initial appearance before a judicial
officer.” Rothgery v. Gillsespie County, Tex., 554 U.S. 191, 199 (2008). All of
which is to say that even if petitioner and the district court were correct that the
“no prosecution is underway” clause meant that CVRA rights apply “before”
18
Presumably because it finds this the more difficult of the two interpretations of subsection
(d)(3) to deal with, the dissent labels it our “alternative[]” position and relegates its response to a
footnote—notwithstanding that we introduce it as the “[f]irst, and perhaps most obvious[]”
reading. See Dissenting Op. at 92 n.17. By contrast, the dissent goes on for pages challenging
what we offer (next page) as an “alternative[]” interpretation, (mis)stating our position as being
that “this venue provision is about ‘post-judgment’ matters.” Id. at 91–93.
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formal charges are filed, they may yet be incorrect that those rights should be
understood to attach during a pre-complaint investigation. Subsection (d)(3) can
be read sensibly enough to apply (and to give victims the right, for example, to
“confer” with prosecutors, § 3771(a)(5)) between the filing of the criminal
complaint and the suspect’s initial appearance before a judge—and thus, for
instance, to express their views to prosecutors about whether the defendant should
be granted pretrial release. See Fed. R. Crim. P. 5(d)(1)(C) (noting that pretrial-
release decisions are made at the “initial appearance”).
Alternatively, subsection (d)(3) could be interpreted to refer to the period
after a “prosecution” has run its course and resulted in a final judgment of
conviction. Petitioner and the district court read the “no prosecution is underway”
clause to say, in effect, “no prosecution is [yet] underway”—thereby necessarily
pointing to the period “before” (their word) the prosecution’s commencement. But
subsection (d)(3)’s is temporally agnostic—on its face, it could just as easily mean
that “no prosecution is [still] underway.” Cf. Underway, Oxford English
Dictionary, https://oed.com/view/Entry/212225?rskey=hlolT7&result=1#eid (last
visited April 13, 2020) (defining “underway” as it pertains to “a process, project,
[or] activity” to mean “set in progress; in the course of happening or being carried
out”). No one doubts, for instance, that a victim could file a post-judgment motion
alleging that the government violated her rights during the course of the
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prosecution and asking the court, say, to “re-open a plea or sentence.” 18 U.S.C.
§ 3771(d)(5).19
Moreover, petitioner’s broad reading of § 3771(d)(3) suffers from the same
slippery-slope problems that plague her reading of § 3771(c)(1). To say, as the
petitioner does—and as the district court did—that subsection (d)(3) indicates that
CVRA “rights must attach before a complaint or indictment formally charges the
defendant with the crime,’” Reply in Supp. of Pet. at 15 (quoting Does, 817 F.
Supp. 2d at 1342), tells us nothing about how long “before.” Again, must
prosecutors consult with victims before law-enforcement officers conduct a raid,
seek a warrant, or conduct an interrogation? That seems exceedingly unlikely. As
we’ve explained, petitioner understandably wants to craft a rule that will cover this
case without opening the floodgates to those possibilities—seemingly by reference
to some sort of once-the-investigation-has-matured criterion. That criterion,
though, has no basis in the CVRA’s text. Petitioner’s reading of subsection
(d)(3)’s “no prosecution is underway” clause—like her reading of subsection
(c)(1)’s “detection [or] investigation” clause—provides no logical stopping point.
* * *
19
We concede that this reading isn’t perfectly seamless, in that it would require the victim to file
her post-judgment motion “in the district in which the crime occurred” rather than, as one might
expect, in the district in which the prosecution occurred and the conviction was entered.
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For all these reasons, we conclude that the CVRA’s text is best read as
applying only after the commencement of criminal proceedings, whether by
complaint, information, or indictment.20
B
The historical context in which the CVRA was enacted confirms what the
Act’s text indicates—namely, that it was not meant to apply prior to the institution
of criminal proceedings. Congress enacted the CVRA against the backdrop of
another victims’-rights statute, the Victims’ Rights and Restitution Act of 1990.
The CVRA repealed and replaced some parts of the VRRA, but left others intact.
20
Although a marginal consideration, we also note that our interpretation is consistent with that
offered by the Department of Justice, both in its implementing regulations and in an explanatory
memorandum authored by the Office of Legal Counsel.
First, as already noted, in the CVRA’s concluding subsection Congress directed DOJ to
“promulgate regulations to enforce the rights of crime victims and to ensure compliance by
responsible officials with the obligations described in law respecting crime victims.” 18 U.S.C.
§ 3771(f)(1). DOJ did so, and those regulations are codified at 28 C.F.R. § 45.10. Although the
regulations don’t expressly address the question whether CVRA rights apply before the
commencement of criminal proceedings, or instead only afterward, they do, on balance, seem to
assume the latter interpretation. The provision specifying the information that an alleged victim
must include in her administrative complaint, for instance, states that the document “shall
contain,” among other information, “[t]he district court case number” and “[t]he name of the
defendant in the case.” Id. § 45.10(c)(2)(iii)–(iv). Needless to say, both items indicate (even if
indirectly) DOJ’s considered view that the Act’s provisions apply only once a criminal case is
pending.
Second, in December 2010, DOJ’s Office of Legal Counsel issued a formal 16-page
opinion—titled “The Availability of Crime Victims’ Rights Under the Crime Victims’ Right Act
of 2004”—in which it concluded, following an exhaustive analysis, that CVRA rights do not
apply before the commencement of criminal proceedings. See The Availability of Crime
Victims’ Rights Under the Crime Victims’ Rights Act of 2004, 35 Op. O.L.C. 1 (Dec. 17, 2010).
OLC’s 2010 opinion reinforced and formalized an earlier 2005 determination that had likewise
concluded, “preliminar[ily],” that “the rights guaranteed by the CVRA [are] limited in their
applicability to pending criminal proceedings.” Id. at 1.
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Notably, the “Services to victims” section of the VRRA, which the CVRA
preserved, includes provisions that, by their express terms, plainly apply before
criminal proceedings begin. 21
That section opens with a phrase that the CVRA repeats—noting that it
applies to government agencies “engaged in the detection, investigation, or
prosecution of crime.” 34 U.S.C. § 20141(a). Unlike the CVRA, though, the
VRRA directs the head of each such agency to designate individuals who will be
responsible for identifying victims and for performing certain victim-related
services “at each stage of a criminal case.” Id. The VRRA goes on state that “[a]t
the earliest opportunity after the detection of a crime at which it may be done
without interfering with an investigation, a responsible official shall . . . identify
the victim or victims of a crime [and] inform the victims of their right to receive,
on request, [certain enumerated] services.” Id. § 20141(b). By referring to the
period immediately following “the detection of a crime” and to the existence of an
ongoing “investigation”—with which the responsible official should be careful not
to “interfer[e]”—the VRRA clearly extends victim-notice rights into the pre-charge
phase.
21
In a legislative-history-laden footnote, the dissent accuses us of “fail[ing] to recognize the
CVRA repealed significant parts of the VRRA.” Dissenting Op. at 101 n.21. As the paragraph
to which this note is appended demonstrates, that is incorrect. The point—which we explain in
text and to which the dissent offers no response—is that the portions of the VRRA that the CVRA
left in place contain provisions that explicitly apply pre-charge, and that if Congress had
intended the CVRA to have the same reach, it could (and should) have said so.
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The VRRA is similarly explicit when describing the sorts of “services” to
which victims are entitled. Following subsection (a)’s direction, subsection (c)
marches—methodically, and roughly chronologically—through the various
“stage[s]” of a crime’s commission, detection, investigation, and prosecution.
Subsection (c)(1) states, for instance, that “the responsible official shall”—
presumably immediately in the aftermath of a crime’s commission, and thus by
definition before any charges are filed—inform the victim where she can “receive
emergency medical and social services.” Id. § 20141(c)(1)(A). Subsection (c)(2)
then provides that the responsible official shall ensure that the victim receives
“reasonable protection from a suspected offender”—notably, not “the accused,” as
in the CVRA, but “a suspected offender.” Id. § 20141(c)(2). Continuing,
subsection (c)(3) states that the official shall provide the victim “the earliest
possible notice” of, among other things, and under appropriate circumstances, “the
status of the investigation of the crime” and “the arrest of the suspected
offender”—both of which, obviously, refer to pre-charge events. Id.
§ 20141(c)(3)(A)–(B). It is not until subsection (c)(3)(C)—which refers to “the
filing of charges against a suspected offender”—that the VRRA’s focus
conspicuously shifts to rights pertaining to “charges,” “trial[s],” “hearing[s],” and
“proceedings.” See id. § 20141(c)(3)(C)–(c)(5).
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The VRRA’s provisions—about which Congress indisputably knew when it
framed and enacted the CVRA—demonstrate that when Congress wants to extend
victims-rights protections pre-charge, it knows how to do so, and does so
expressly. The fact that the CVRA contains no similar language counts heavily
against petitioner’s interpretation under what we have called an entire “family” of
interpretive canons. See Freemanville Water Sys., Inc. v. Poarch Band of Creek
Indians, 563 F.3d 1205, 1209 (11th Cir. 2009) (citing the interrelated principles,
for instance, that “where Congress knows how to say something but chooses not to,
its silence is controlling,” and that “when Congress uses different language in
similar sections, it intends different meanings” (citations omitted)). 22
* * *
Together, these textual and contextual considerations lead us to conclude
that, on balance, the CVRA is best interpreted to apply only after the
commencement of criminal proceedings. Although not precisely on point, we find
resonance in much of what the Supreme Court recently said in Lagos v. United
22
One might reasonably ask why petitioner here didn’t proceed under the VRRA, some of whose
provisions (unlike, we conclude, the CVRA’s) clearly apply before the initiation of criminal
proceedings—and which, therefore, the government here may well have violated. The answer,
in short, is that the VRRA provides no mechanism for judicial enforcement whatsoever—not
even the limited “motion”-based remedy that the CVRA authorizes. See 34 U.S.C. § 20141(d)
(“This section does not create a cause of action or defense in favor of any person arising out of
the failure of a responsible person to provide information as required . . . .”). So, while (on our
reading, anyway) the rights available under the VRRA are more broadly applicable than those
under the CVRA, they are not judicially enforceable—and thus, as we will explain shortly, don’t
give rise to the practical concerns that a pre-charge application of CVRA rights would.
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States, 138 S. Ct. 1684 (2018), which concerned another federal victims’-rights
statute, the Mandatory Victims Restitution Act. In particular, the Court there
addressed a portion of that statute requiring reimbursement of expenses that a
crime victim “incurred during participation in the investigation or prosecution of
the offense or attendance at proceedings related to the offense.” 18 U.S.C.
§ 3663A(b)(4). The question before the Court was whether that provision should
be interpreted narrowly, to require reimbursement only of those expenses that a
victim incurred during a government “investigation” and criminal “proceedings,”
or more broadly, to include expenses incurred during any “investigation” and any
case-related “proceedings.” Lagos, 138 S. Ct. at 1688.
The Court unanimously adopted the narrower reading. In doing so, the
Court readily acknowledged that there were “contrary arguments . . . favoring a
broad interpretation”—in particular, that the more limited reading “will sometimes
leave a victim without a restitution remedy sufficient to cover” some offense-
related expenses and thereby contravene the Act’s “broad purpose.” Id. at 1689.
The Court further conceded that while it thought the statute’s “individual words
suggest[ed]” a more “limited interpretation,” they “d[id] not demand” it. Id. at
1688. Even so, the Court held that, understood in context—for instance, the fact
that the terms “investigation” and “proceedings” were both linked to the word
“prosecution”—the more limited reading was preferable from a textual and
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structural standpoint. The Court also emphasized that “Congress ha[d] enacted
many different restitution statutes with differing language, governing different
circumstances,” and that while some of them contained provisions specifically
requiring “full” restitution, the Mandatory Victims Restitution Act “contain[ed] no
such language.” Id. at 1689–90.
The Court concluded its interpretive analysis this way: “[G]iven th[e]
differences between the Mandatory Victims Restitution Act and other restitution
statutes, we conclude that the considerations we have mentioned, particularly those
based on a reading of the statute as a whole, tip the balance in favor of our more
limited interpretation.” Id. at 1690. Just so here. In light of CVRA’s text’s
overarching focus on the period following the initiation of criminal proceedings,
and the obvious differences between the CVRA and the VRRA—which by its
terms plainly reaches into the pre-charge phase—we too conclude that the
interpretive balance tips in favor of a more limited reading.
C
There is a final consideration here, and it is to our minds a weighty one. The
CVRA’s final substantive provision—which Congress slotted in just before
statutory definitions and a closing directive to the Attorney General to promulgate
implementing regulations—states that “[n]othing in this chapter [i.e., the entirety
of the Act] shall be construed to impair the prosecutorial discretion of the Attorney
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General or any officer under his direction.” 18 U.S.C. § 3771(d)(6). For reasons
we will explain, we conclude that petitioner’s “constru[ction]” of the Act—as
applying before the initiation of criminal proceedings—would indeed “impair . . .
prosecutorial discretion.”
Broadly defined, the term “prosecutorial discretion” refers to the soup-to-
nuts entirety of “[a] prosecutor’s power to choose from the options available in a
criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining,
and recommending a sentence to the court.” Black’s, supra, at 565. The core of
prosecutorial discretion, though—its essence—is the decision whether or not to
charge an individual with a criminal offense in the first place. The Supreme Court
has repeatedly reaffirmed the principle—which dates back centuries—that “the
Executive Branch has exclusive authority and absolute discretion to decide
whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974)
(citing Confiscation Cases, 74 U.S. (7 Wall.) 454 (1869)). 23
23
This prosecutorial discretion “flows not from a desire to give carte blanche to law enforcement
officials but from recognition of the constitutional principle of separation of powers.” United
States v. Ream, 491 F.2d 1243, 1246 n.2 (5th Cir. 1974). As we said in Ream—
The discretionary power of the attorney for the United States in determining
whether a prosecution shall be commenced or maintained may well depend upon
matters of policy wholly apart from any question of probable cause. Although as
a member of the bar, the attorney for the United States is an officer of the court,
he is nevertheless an executive official of the Government, and it is as an officer
of the executive department that he exercises a discretion as to whether or not
there shall be a prosecution in a particular case. It follows, as an incident of the
constitutional separation of powers, that the courts are not to interfere with the
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We believe that petitioner’s interpretation of the CVRA risks
“impair[ing] . . . prosecutorial discretion” in at least two fundamental ways. As an
initial matter, consider that the very first determination that a court must make
when asked to enforce the CVRA is whether the party seeking the Act’s benefit is
a “crime victim.” The reason is because the CVRA’s opening provision makes
clear that the Act’s protections—the rights enumerated therein, already discussed
at some length—are available only to “crime victim[s].” 18 U.S.C. § 3771(a) (“A
crime victim has the following rights . . . .”). Notably for our purposes, the CVRA
statutorily defines the term “crime victim” to mean “a person directly and
proximately harmed as a result of the commission of a Federal offense.” Id.§ 3771(e)(2).
Accordingly, any movant asserting rights under the CVRA must, at the very
outset, demonstrate to the district court that he or she is a “crime victim” entitled to
statutory protection. And, given the statutory definition’s terms, in order to
determine whether the movant has made the requisite showing, the court must
decide whether a “Federal offense” has occurred. When a prosecutor has already
free exercise of the discretionary powers of the attorneys of the United States in
their control over criminal prosecutions.
Id. (quoting United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)); accord, e.g., Heckler v.
Chaney, 470 U.S. 821, 832 (1985) (“[T]he decision of a prosecutor in the Executive Branch not
to indict . . . has long been regarded as the special province of the Executive Branch, inasmuch as
it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully
executed.’”).
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commenced criminal proceedings against an identifiable individual for a specific
crime, he or she has made at least a presumptive determination that the individual
has in fact committed a “Federal offense.” So, as applied post-charge—in the
context of ongoing criminal proceedings—the “crime victim” determination is
straightforward: An individual who has been “directly and proximately harmed” as
a result of the conduct charged by the government is entitled to CVRA protection.
Not so before the commencement of criminal proceedings. In that
circumstance, if a movant were to assert CVRA rights as a “crime victim,” the
court would first have to determine—but this time without any initial
determination by the government in the form of a charging decision and, indeed,
presumably while the government’s investigation is ongoing—whether or not a
“Federal offense” has been committed. That scenario—which is a necessary
consequence of petitioner’s interpretation—presents at least three intractable
problems.
First, and most obviously, petitioner’s reading puts the cart before the horse:
When else, if ever, is a court called on to decide whether an “offense” (i.e., a
crime) has occurred—as opposed to a moral wrong more generally—before the
government has even decided to press charges? The answer, so far as we are
aware, is never. Second, how, in the absence of a charging decision, would the
court even go about ascertaining whether an “offense” had occurred? What would
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that proceeding look like? A mini- (or perhaps a not-so-mini-) trial in which the
court finds facts and makes legal determinations regarding an “offense” yet to be
named? Finally, and in any event, it seems obvious to us that simply by
conducting such a proceeding and by concluding (up front) that an “offense” has—
or has not—occurred, the court would not only exert enormous pressure on the
government’s charging decisions, but also likely impair the government’s ongoing
investigation. The “impair[ment]” of prosecutorial discretion, we think, would be
palpable.
Separately, even if the threshold “crime victim” barrier could be overcome,
the enforcement of CVRA rights in the pre-charge phase would risk unduly
impairing prosecutorial discretion. Consider, as a general matter, how CVRA
enforcement occurs. If, for instance, an individual claiming to be a covered victim
believes—as did petitioner here—that the government hasn’t “confer[red]” with
her in the manner prescribed by § 3771(a)(5) or “treated [her] with fairness” as
required by § 3771(a)(8), then she will—as did petitioner here—ask a district court
to “order” prosecutors to confer and to treat her “fair[ly].” See Emergency Pet. at
2. Even in the post-charge phase, those are pretty extraordinary requests. It is no
small thing to ask a judge to issue an injunction ordering the government’s lawyers
(presumably on pain of contempt) to conduct their prosecution of a particular
matter in a particular manner. But at least after the commencement of criminal
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proceedings—and accordingly after the government has submitted itself and its
case to the district court’s jurisdiction and supervision—the CVRA explicitly
authorizes the court’s intervention. Congress made a clear determination that the
intrusion was necessary and appropriate.
Before the commencement of criminal proceedings, though, the intrusion
would be significantly greater, both quantitatively and qualitatively. As a
quantitative matter, petitioner’s interpretation—pursuant to which the CVRA’s
protections would extend into the “detection” and “investigation” phases—risks
greatly multiplying the sheer number of opportunities for judicial intervention in
law-enforcement and prosecutorial affairs. Freed from any line limiting the Act’s
applicability to the post-charge phases of a prosecution, courts would be
empowered to issue injunctions requiring (for instance) consultation with victims
before raids, warrant applications, arrests, witness interviews, lineups, and
interrogations. That would work an extraordinary expansion of an already-
extraordinary statute.
The intrusion occasioned by a pre-charge interpretation of the CVRA would
also be qualitatively different. The commencement of criminal proceedings marks
a sensible boundary on the prosecutorial-discretion spectrum. As already
explained, before charges are filed—when the government is still in the process of
investigating and deciding “whether to prosecute”—its authority and discretion are
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understood to “exclusive” and “absolute.” Nixon, 418 U.S. at 693. By contrast,
once the charging decision is made, the prosecutor steps into the court’s
jurisdiction—its “house,” to speak—and thus necessarily cedes some of her control
of the course and management of the case. From that point forward, the court will
“assume a more active role in administering adjudication of a defendant’s guilt and
determining the appropriate sentence.” United States v. Fokker Servs. B.V., 818
F.3d 733, 737 (D.C. Cir. 2016). Interpreting the CVRA to apply post-charge—as
its terms plainly permit—thus squares with the background expectation of judicial
involvement. Interpreting the Act to apply pre-charge, by contrast, contravenes the
background expectation of executive exclusivity. 24
* * *
For reasons we have explained, we conclude that the CVRA is best
understood—in accordance with its terms and the context in which it was
24
For at least two reasons, it is no answer to say, as the district court did, that the CVRA would
entitle movants only to a “voice” in a prosecutor’s pre-charge decisionmaking process, not a
“veto” over the decisions themselves—or, as the dissent does, that “nothing in the CVRA
empowers crime victims to force a prosecutor to prosecute.” Dissenting Op. at 63. First, giving
movants even a guaranteed right under § 3771(a)(5) to “confer” with government actors before
detection- and investigation-phase activities like raids, warrant applications, and interrogations
could severely impact law-enforcement and prosecutorial decisionmaking. Second, there is
essentially no limit to the sorts of pre-charge relief that an enterprising movant could seek—or
that an innovative judge might grant—under § 3771(a)(8)’s fair-treatment provision. While
perhaps not likely, it is not outside the realm of possibility that an alleged victim might argue—
or that a district court might conclude—that the only “fair” thing to do in a particular
circumstance would be to require the government to indict a suspect, or to charge him in a
particular manner.
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enacted—to apply only after the initiation of criminal proceedings. To the extent
the Act’s language and structure leave any doubt about its proper scope, we must
assume that Congress “acted against the backdrop of long-settled understandings
about the independence of the Executive with regard to charging decisions.”
Fokker Servs., 818 F.3d at 738. Had Congress intended to upend (rather than
reinforce) those “long-settled understandings,” we can only assume it would have
expressed itself more clearly. See, e.g., Puerto Rico v. Franklin California Tax-
Free Trust, 136 S. Ct. 1938, 1947 (2016) (“Congress ‘does not, one might say,
hide elephants in mouseholes.’” (quoting Whitman v. American Trucking Assns.,
Inc., 531 U.S. 457, 468 (2001))).25
25
The dissent relies heavily on the Fifth Circuit’s decision in In re Dean, 527 F.3d 391 (5th Cir.
2008), which it says “held” that “[t]here are clearly rights under the CVRA that apply before any
prosecution is underway.” Dissenting Op. at 103 (quoting Dean, 527 F.3d at 394). To the extent
that Dean is properly read to “h[o]ld” that CVRA rights apply before the commencement of
criminal proceedings—which we doubt, for reasons we will explain—we disagree with and
decline to follow it. In that case, following an explosion at an oil refinery that killed 15 people
and injured more than 170, the Department of Justice considered prosecuting the owner. Before
bringing any charges, though, prosecutors filed an ex parte motion in the district court (1)
alerting the court that a plea agreement was forthcoming and (2) asking the court’s permission to
delay notifying known victims until after the agreement was executed, for fear that pre-plea
notification would be impracticable and could jeopardize the plea-negotiation process. The
district court agreed, the plea agreement was signed, and the victims were notified thereafter.
Several victims subsequently moved to appear and urged the district court to reject the plea
agreement on the ground that, by maintaining secrecy, prosecutors (and the court) had violated
their CVRA-based “reasonable right to confer with the attorney for the Government.” 18 U.S.C.
§ 3771(a)(5). When the district court refused to reject the plea agreement, the victims sought
mandamus relief from the court of appeals.
Although the Fifth Circuit ultimately declined to issue the writ, it observed—in what,
given its ultimate disposition, was technically dictum—that the district court had violated the
CVRA by acceding to the government’s request that victims not be notified in advance of the
plea deal. In so doing, it noted the district court’s “acknowledg[ment]” that “[t]here are clearly
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V
For the foregoing reasons, we hold that the CVRA does not apply before the
commencement of criminal proceedings—and thus, on the facts of this case, does
not provide the petitioner here any judicially enforceable rights.
Having so held, two final words.
First, regarding the dissent: Although we have endeavored along the way to
meet a few of the dissent’s specific critiques, we must offer here two more global
responses. As an initial matter, with respect to the dissent’s charge (Dissenting
Op. at 65) that we have “dresse[d] up” what it calls a “flawed statutory analysis”
with “rhetorical flourish”—well, readers can judge for themselves whose rhetoric
is in fact more florid. See, e.g., id. at 61 (“So how does the Majority bail the U.S.
Attorney’s Office out of its egregious CVRA violations . . . ?”); id. at 94 (“So how
rights under the CVRA that apply before any prosecution is underway.” 527 F.3d at 394.
“Logically,” the court of appeals said, “this includes the CVRA’s establishment of victims’
‘reasonable right to confer with the attorney for the Government.’” Id. (quoting 18 U.S.C.
§ 3771(a)(5)). Thus, the Fifth Circuit noted, “[a]t least in the posture of this case (and we do not
speculate on the 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.” Id.We decline to follow Dean’s dictum for several reasons. First, the Dean briefing reveals
that the parties there didn’t even dispute whether the CVRA applies before the commencement
of criminal proceedings; accordingly, the question that this case so clearly tees up was never
subjected to adversarial testing. Second, and perhaps relatedly, the Fifth Circuit’s three-sentence
discussion—which does little more than echo the district court’s own “acknowledg[ment]”—is
devoid of any analysis of the CVRA’s text, history, or structural underpinnings. Finally, even
read for all it might be worth, the Fifth Circuit’s observation that the CVRA applied pre-charge
in the circumstances before the court there was—for reasons we have explained at length and in
detail, and with all due respect—simply incorrect.
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in the holy name of plain text . . . ?”); id. (“The Majority hacks away at the plain
text with four tools.”); id. (“The Majority cherry picks the meaning of
‘case’ . . . .”); id. at 96 (“Nonsense.”); id. at 98 (“As its third tool to axe the plain
text . . . .”); id. (“Do not fall for this.”); id. 106 (accusing us of ruling “by judicial
fiat”); id. at 109–10 (twice accusing us of fearing crime victims more than
“wealthy defendants”).
More substantively, it remains unclear to us exactly how the dissent thinks
the CVRA should be interpreted and applied. It’s obvious that our dissenting
colleague doesn’t particularly like our reading—namely, that CVRA rights don’t
attach before the initiation of criminal proceedings. (Which is fine—as we’ve
already confessed, we don’t particularly like it either.) But she offers no
intelligible alternative of her own. At times, the dissent suggests—broadly, but
without elaboration—that the Act should be construed to apply “pre-charge.” See
Dissenting Op. at 67, 90, 95 n.19, 96–97, 104, 106, 109, 112. That reading (while
we think wrong) at least has the benefit of coherence and clarity. But the dissent
(we think wisely) doesn’t seem eager to defend so sweeping an interpretation,
presumably because it has no logical stopping point. Instead, the dissent hints—
although again, without any real explanation—that CVRA rights should be
understood to apply only (or at least?) “once the criminal case has matured to plea
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negotiations.” Id. at 96.26 Where, though—or as our dissenting colleague would
say, where “in the holy name of plain text”—does that limiting criterion come
from? As best we can tell, it is devised specifically to capture this case without
risking a landslide. For reasons we have explained in detail, we believe that the
CVRA is most properly (if imperfectly) read to apply only after the
commencement of criminal proceedings. One thing of which we are certain: That
interpretation is far superior to the dissent’s good-for-this-train-only, once-the-
investigation-has-matured reading—which, so far as we can tell, has no
meaningful footing in the Act’s text, history, or structure.
Second, and far more importantly, regarding the consequences of our
interpretation: It isn’t lost on us that our decision leaves petitioner and others like
her largely emptyhanded, and we sincerely regret that. Under our reading, the
CVRA will not prevent federal prosecutors from negotiating “secret” plea and non-
prosecution agreements, without ever notifying or conferring with victims,
provided that they do so before instituting criminal proceedings. We can only
26
Accord, e.g., id. at 66–67 (insisting that “[t]his case is not about the start or middle stages of a
criminal investigation” but, rather, “a completed investigation” and prosecutors’ preliminary
“deci[sion] to proceed with an indictment”); id. at 69 (“The prosecutors were prepared to indict
Epstein.”); id. at 70 (“[P]rosecutors were recommending and ready to proceed with the federal
indictment of Epstein.”); id. at 97 (asserting that the right to confer attaches “[o]nce an
investigation is completed, the case has matured to the indictment-drafting stage and pre-charge
plea negotiations with defense counsel have begun”); id. at 111 (contending that prosecutors had
an obligation to confer here “given the investigation was completed, the 53-page indictment was
drafted, and the prosecutor[s were] already conducting pre-charge plea negotiations with
Epstein’s defense team”).
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hope that in light of the protections provided by other statutes—and even more so
in the wake of the public outcry over federal prosecutors’ handling of the Epstein
case—they will not do so.
The question before us, though, isn’t whether prosecutors should have
consulted with petitioner (and other victims) before negotiating and executing
Epstein’s NPA. It seems obvious to us—and, indeed, the government has
expressly conceded—that they should have. Our sole charge is to determine, on
the facts before us, whether the CVRA obligated prosecutors to do so. We simply
cannot say that it did.
PETITION DENIED.
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TJOFLAT, Circuit Judge, concurring:
I concur without reservation in Judge Newsom’s opinion for the Court. I
write separately because the model the dissent creates, in which a victim is
permitted to sue the United States Attorney 1 for refusing to confer about a criminal
matter prior to indictment, would, in operation, result in Judicial Branch
interference with the Executive Branch’s function of investigating and prosecuting
federal crimes. Such a model raises serious questions about whether, by doing so,
the judiciary would be violating the constitutional principle of separation of
powers.2
There can be no doubt that the Executive Branch has exclusive power over
prosecutorial decisions. See United States v. Nixon, 418 U.S. 683, 693, 94 S. Ct.
3090, 3100 (1974) (“[T]he Executive Branch has exclusive authority and absolute
discretion to decide whether to prosecute a case . . . .”); Confiscation Cases, 74
U.S. 454, 457 (1868) (“Public prosecutions, until they come before the court to
which they are returnable, are within the exclusive direction of the district
attorney . . . .”); Heckler v. Chaney, 470 U.S. 821, 832, 105 S. Ct. 1649, 1656
1
I refer to the U.S. Attorney here and throughout this opinion for ease of analysis. Of
course, in the typical case, the victim would sue the specific attorney in charge of the criminal
investigation.
2
This case presents an atypical CVRA scenario. In the ensuing discussion, I explain how
the dissent’s interpretation of the statute would likely be applied in a typical case, in which the
U.S. Attorney’s Office is considering whether to impanel a grand jury to hear evidence
indicating that an individual may have committed a criminal offense against another individual
and caused the latter to suffer an injury.
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(1985) (“[T]he decision of a prosecutor in the Executive Branch not to indict . . .
has long been regarded as [within] the special province of the Executive Branch,
inasmuch as it is the Executive who is charged by the Constitution to ‘take Care
that the Laws be faithfully executed.’” (quoting U.S. Const., Art. II, § 3)). This
Executive Branch authority obviously includes the decision to investigate
suspected criminal activity and whether to seek, or not seek, an indictment from
the grand jury. These pre-charge decisions are the focus of this case.
The dissent interprets the CVRA as authorizing a victim to bring a U.S.
Attorney to court for refusing to confer with her about a matter under criminal
investigation. To illustrate what would likely occur if we permitted the victim to
do that—i.e., to envision how the dissent’s interpretation of the CVRA would
operate in practice—consider a simple case of mail fraud.
Jane Doe is the victim of a fraudulent scheme. She finds out that the U.S.
Attorney’s Office is investigating the scheme and wants to discuss it with the
attorney handling the investigation. The attorney refuses her request, so she sues
him. Applying the dissent’s interpretation, the district court finds that the attorney
violated the CVRA by failing to confer with the victim. The court issues an
injunction requiring the attorney to confer with Doe and to treat her fairly.3 Even
3
Another problem with the dissent’s interpretation is that such an injunction could not be
crafted in compliance with Rule 65 of the Federal Rules of Civil Procedure. Under that rule, the
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if the court could craft such an injunction to comply with Rule 65 of the Federal
Rules of Civil Procedure, which I doubt, the court would then be continually
involved in the criminal investigation from the moment it issued the injunction. At
any moment during the inevitable twists and turns of a pre-indictment criminal
investigation, the victim could allege that the attorney had violated the injunction,
and the attorney would be back in front of the district court to show cause why he
should not be held in contempt. 4 But the event most likely to trigger such a
hearing is the attorney’s decision not to take the case to the grand jury, and that
decision is completely within the Executive Branch’s prosecutorial discretion.
Therefore, applying the dissent’s interpretation of the CVRA would clearly
interfere with the Executive Branch’s investigative and prosecutorial functions.
order must be “specific” and “describe in reasonable detail . . . the act . . . required.” Fed. R.
Civ. P. 65(d)(1)(b)–(c). These requirements serve three purposes.
First, they provide notice to the enjoined party of precisely what it must do to avoid being
held in contempt—the party cannot be left guessing. Second, a specific and reasonably detailed
order is easy to enforce, while a vague order is not. Third, an injunction that does not meet these
requirements breeds disrespect for the courts and the rule of law.
In cases like this one, an injunction requiring the attorney to confer with the victim and
treat her fairly could not meet Rule 65’s requirements. In my hypothetical, “conferral” and
“fairness” likely would mean different things to the attorney and Doe, meaning the parties would
be left guessing about what the injunction required. Therefore, such an injunction would not
comply with Rule 65. To make matters worse, failure to comply with Rule 65 would exacerbate
the problem discussed below—specifically, excessive judicial interference with an ongoing
investigation—because the district court would frequently need to oversee disputes about
whether the attorney’s handling of the investigation was violating the inherently vague
injunction.
4
Moreover, and perhaps worst of all, there is nothing stopping a victim from challenging
the attorney’s decisions at multiple steps along the way. Once the district court is involved, a
victim could allege that the attorney did not confer with her, or did not treat her fairly, whenever
he makes each new investigatory or prosecutorial decision.
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Having explored the consequences of the dissent’s interpretation of the
CVRA, it is clear that such an interpretation cannot be accepted. The notion that a
district court could have any input on a U.S. Attorney’s investigation and decision
whether to bring a case to the grand jury is entirely incompatible with the
constitutional assignment to the Executive Branch of exclusive power over
prosecutorial decisions. Additionally, it is hard to imagine a bigger intrusion on
executive autonomy than the possibility that a U.S. Attorney will be held in
contempt for violating an injunction if her investigation is not handled as the
victim and district court see fit. Therefore, the dissent’s interpretation raises
serious constitutional issues by concluding that there are no temporal limitations on
the CVRA rights to confer with, and to be treated fairly by, the U.S. Attorney. 5
In contrast, under Judge Newsom’s interpretation, this problem does not
exist because the CVRA only gives victim’s post-charge rights. And, post-charge,
the district court is not dragging the U.S. Attorney into court against his will and
5
The dissenting opinion asserts that it “in no way injects judicial interference into a
prosecutor’s decisions” because “[t]he fact that a prosecutor must confer with a victim pre-
charge does not mean the district court can exercise any control over the prosecutor’s ultimate
decision whether to indict.” Dis. Op. at 113. But this is clearly wrong based on the facts of this
case—prosecutors chose to enter an NPA with Epstein, and the victim wants the Court to undo
that agreement. My dissenting colleague would likely argue that, because the U.S. Attorney
could re-enter an NPA with Epstein’s co-conspirators after conferring with victims, forcing the
U.S. Attorney to confer would not invade the executive’s prosecutorial discretion. This riposte
overlooks the reality that exclusive discretion does not come with caveats. In other words,
imposing the dissent’s conditions that the executive must satisfy before it can exercise its
prosecutorial discretion means that it does not truly have exclusive discretion.
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imposing a condition upon his prosecutorial discretion—the attorney is voluntarily
before the court, and it is appropriate for the court, in its active role in the criminal
proceedings, to examine the attorney’s failure to comply with his CVRA
obligations. In such circumstances, there is no concern about the separation of
powers because the court is not meddling in the Executive Branch’s decisions until
executive officers have chosen to present themselves to the court.
In sum, the dissent’s interpretation creates serious constitutional concerns
that Judge Newsom’s interpretation does not. And it is “settled policy” that, when
confronted with two potential interpretations of a statute, we should avoid the
interpretation that “engenders constitutional issues if a reasonable alternative
interpretation poses no constitutional question.” See Gomez v. United States, 490
U.S. 858, 864, 109 S. Ct. 2237, 2241 (1989). Therefore, Judge Newsom’s
interpretation should be adopted. This conclusion is bolstered by the language of
the statute, itself, which explicitly states that none of the CVRA’s provisions
should be read to diminish prosecutorial discretion: “Nothing in this chapter shall
be construed to impair the prosecutorial discretion of the Attorney General or any
officer under his direction.” 18 U.S.C. § 3771(d)(6). Clearly, the author of the
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statute—Congress—recognized the need to avoid any construction that results in
the problem that the dissent’s approach creates. 6
For all of the reasons set forth in Judge Newsom’s opinion, and because
such an interpretation avoids raising serious constitutional questions, the CVRA is
best understood as not applying until charges are commenced against a defendant.
6
Putting aside the separation of powers problem, under the dissent’s approach, the
judiciary, based on Congressional authority in the form of a statute, appears to be putting its
thumb on the scale against the individuals being investigated by law enforcement. In a sense, the
judiciary is telling the executive that it had better indict its suspects or potentially face a CVRA
action. But the only time that it is appropriate for the judiciary to do so, based on Congressional
authority, is during criminal sentencing, where sufficient due process safeguards are in place to
protect the accused’s constitutional rights. Because such safeguards are obviously not in place
pre-charge, this effect of the dissent’s interpretation is another reason not to adopt it.
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HULL, Circuit Judge, dissenting:
This appeal presents legal questions of first impression in this Circuit
regarding the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, which
grants a statutory “bill of rights” to crime victims. In my view, the Majority
patently errs in holding, as a matter of law, that the crime victims of Jeffrey
Epstein and his co-conspirators had no statutory rights whatsoever under the
CVRA. Instead, our Court should enforce the plain and unambiguous text of the
CVRA and hold that the victims had two CVRA rights—the right to confer with
the government’s attorney and the right to be treated fairly—that were repeatedly
violated by the U.S. Attorney’s Office in the Southern District of Florida. 1
Here, the U.S. Attorney’s Office (1) drafted a 53-page indictment against
sex trafficker and child abuser Epstein and (2) repeatedly wrote his defense team
that the government had proof beyond a reasonable doubt that he victimized more
than 30 women as minors. Shockingly though, the Office then (1) conducted many
days of extensive plea negotiations with Epstein’s attorneys and secretly entered
into a Non-Prosecution Agreement (“NPA”), granting Epstein federal immunity in
return for his plea to two state prostitution-solicitation charges, (2) never conferred
one minute with the victims about the NPA or told the victims that such an
1
Federal prosecutors located in the U.S. Attorney’s Offices in both West Palm Beach and
Miami handled Epstein’s case. I will refer to those offices collectively as “the U.S. Attorney’s
Office” or “the Office.”
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agreement was under consideration, (3) worked closely with Epstein’s lawyers to
keep the NPA’s existence and terms hidden from the victims, (4) actively
misrepresented to the victims that the criminal investigation continued when the
NPA was already signed, and (5) never informed the victims about the NPA until
after Epstein pled guilty in State Court and the secret sweetheart deal was done.
Remarkably too, without notice and conferral with the victims, the NPA
granted federal immunity not only to Epstein, but also to “any potential co-
conspirator of Epstein, including but not limited to Sarah Kellen, Adriana Ross,
Lesley Groff, or Nadia Marcinkova.” It is only because the victims filed this
lawsuit, and the District Court ordered the NPA be produced, that the victims and
the public learned the truth about the plea negotiations and the NPA’s grant of
federal immunity to Epstein and his co-conspirators.
So how does the Majority bail the U.S. Attorney’s Office out of its egregious
CVRA violations and reverse the District Court’s ruling? The Majority holds that
Epstein’s crime victims had no CVRA rights at all because the plea negotiations
with Epstein’s defense counsel were conducted “pre-charge” and the Office never
filed the indictment and commenced court proceedings. That is to say, the
Majority crafts a bright-line, blanket restriction on the statute: the CVRA grants
crime victims no rights whatsoever unless and until a formal indictment is filed in
a court. See Maj. Op. at 2.
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The Majority concludes “the CVRA was never triggered” at all, even though
the U.S. Attorney’s Office prepared a 53-page indictment against Epstein but later
secretly entered into a plea deal, granting federal immunity to Epstein and his co-
conspirators. Id. According to the Majority, because the Office cleverly entered
into a sweetheart plea deal with Epstein “pre-charge” and never filed the
indictment, the victims never had any CVRA rights in the first place. Id. at 2, 18-
19.2
I dissent because the plain and unambiguous text of the CVRA does not
include this post-indictment temporal restriction that the Majority adds to the
statute. Although, as I discuss later, the two rights provisions at issue include other
limiting principles, there is no textual basis for the bright-line, post-indictment only
restriction the Majority adds to the statute. Rather, the Majority’s contorted
statutory interpretation materially revises the statute’s plain text and guts victims’
rights under the CVRA. Nothing, and I mean nothing, in the CVRA’s plain text
requires the Majority’s result.
See for yourself. The CVRA grants “crime victims” these two unambiguous
rights in subsection (a):
2
The Majority holds that “the rights under the Act do not attach until criminal
proceedings have been initiated against a defendant, either by complaint, information, or
indictment.” See Maj. Op. at 2. But for ease of reference in my dissent, I collectively refer to
the initiation of criminal proceedings as by “filing an indictment” because most prosecutions
begin that way. In contrast, a “complaint” can initiate only misdemeanor prosecutions and an
“information” can initiate felony charges only if the defendant waives grand jury presentment.
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(a) Rights of crime victims.—A crime victim has the following rights:
....
(5) The reasonable right to confer with the attorney for the Government
in the case.
....
(8) The right to be treated with fairness and with respect for the victim’s
dignity and privacy.
18 U.S.C. § 3771(a)(5), (8). The text does not contain the Majority’s post-
indictment temporal restriction. Simply put, crime victims do not have to wait for
the government to file a formal indictment and commence court proceedings
before having these CVRA rights.
In fact, the CVRA’s venue provision in § 3771(d) expressly provides that,
“if no prosecution is underway,” the victims can file suit to assert their
subsection (a) rights “in the district court in the district in which the crime
occurred.” Id. § 3771(d)(1), (3). In filing this lawsuit back in 2008, the petitioner
crime victims did what the CVRA expressly authorized them to do.
To be clear, nothing in the CVRA empowers crime victims to force a
prosecutor to prosecute. See id. § 3771(d)(6). As the Concurring Opinion well
points out, the Executive Branch has exclusive authority and absolute discretion
over prosecutorial decisions and whether to seek indictment or not. Conc. Op. at
54-55. But what the CVRA does do is grant victims a statutory right to have an
opportunity to speak to the prosecutor before the prosecutor makes that decision.
In § 3771(c), the CVRA even mandates that the U.S. Attorney’s prosecutors, while
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“engaged in the . . . investigation[] or prosecution of crime shall make their best
efforts” to accord victims these statutory rights in subsection (a). Id. § 3771(c)(1).
After conferral, the prosecutor has the exclusive authority and discretion whether
to indict or not. Pre-charge, the Office spent days conferring and negotiating with
Epstein’s defense team, but had not a minute for the victims.
Unlike the Majority, I agree with the Fifth Circuit that crime victims have a
CVRA right to confer with the government attorney, even if a plea deal is struck
before any formal indictment is filed. See In re Dean, 527 F.3d 391, 394 (5th Cir.
2008). As the Fifth Circuit emphasized: “In passing the Act, Congress made the
policy decision—which we are bound to enforce—that the victims have a right to
inform the plea negotiations process by conferring with prosecutors before a plea
agreement is reached.” Id. at 395.
What’s worse is that the Majority concedes, as it must, that § 3771(a)(5)’s
conferral right and § 3771(a)(8)’s right to be treated with fairness have no temporal
limitation on their face and that petitioners are “not without [their] own textual
arguments.” Maj. Op. at 20, 25, 29. The Majority admits: “The interpretation of
the CVRA that petitioner advances, and that the district court adopted, is not
implausible; the CVRA could be read to apply pre-charge.” Id. at 18. Yet, the
Majority refuses to enforce the Act as written by Congress and grafts onto the plain
and unambiguous text a restriction Congress never enacted.
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The roadmap for my dissent follows. First, I recount more facts about the
undisputed conduct of the U.S. Attorney’s Office. This includes how initially the
Office wrote the victims, and later Epstein’s attorneys, that the victims had
ongoing CVRA rights to confer and be treated fairly. Tellingly, it was not until the
petitioner victims filed this lawsuit that the Office reversed course and took the
stance that the victims never had any CVRA rights in the first place.
Next, I examine the CVRA text and apply the relevant canons of statutory
interpretation. Then, I show the flaws in the Majority’s statutory analysis. In one
breath, the Majority urges Congress to fill the gap left by (the Majority’s reading
of) the CVRA and in the next tells us why granting victims two CVRA rights “pre-
charge” would be a bad idea.
Given this is a plain-text case, the Majority curiously carries on at length
about slippery slopes and bad policy implications that the Majority says counsel
against enforcing any victim rights “pre-charge.” Yet, since the Fifth Circuit’s
2008 decision and the District Court’s 2011 decision, there has been no flood of
civil suits by victims, no evidence of victims’ abuse of their CVRA rights, and no
prosecutors’ complaints about impairment of their prosecutorial discretion.
The Majority also dresses up its flawed statutory analysis with rhetorical
flourish, using language like “scandalous,” “national disgrace,” and “the sad details
of this shameful story,” while also expressing sincere empathy for the victims:
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“Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable
horror at Epstein’s hands, only to be left in the dark—and, so it seems,
affirmatively misled—by government lawyers, we find ourselves constrained to
deny her petition.” Maj. Op. at 2, 6. The Majority confesses that “[i]t isn’t lost on
us that our decision leaves petitioner and others like her largely emptyhanded” and
“we sincerely regret that.” Id. at 52. In addition to ruminating in sincere regret
and sympathy, we, as federal judges, should also enforce the plain text of the
CVRA—which we are bound to do—and ensure that these crime victims have the
CVRA rights that Congress has granted them.
Next, I address the constitutional concerns about the CVRA raised in the
Concurring Opinion, although that, so far, has not been the issue in this appeal.
Lastly, I address the remedy and why, due to the U.S. Attorney’s Office’s
egregious violations of the victims’ rights, this Court should remand the case to the
District Court for consideration of the victims’ requested remedies.
I. PROSECUTORS ADVISE VICTIMS HAVE CVRA RIGHTS
This case is not about the start or middle stages of a criminal investigation.
Rather, as detailed below, this case is about (1) a completed investigation of
federal sex-trafficking crimes against minor girls and (2) the U.S. Attorney’s
Office’s repeated communications that it (a) had “proof beyond a reasonable
doubt” that over 30 minor girls were victims of Epstein’s criminal sexual conduct
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and (b) had “decided to proceed with [Epstein’s] indictment.” Let’s start with the
investigation and how the Office in 2006 wrote the victims that they did have
CVRA rights pre-charge.
A. 2005 – 2007 Criminal Investigation
In 2005, the parents of a 14-year-old girl reported to the Palm Beach Police
Department that Jeffrey Epstein sexually abused their daughter. This report began
the investigation into the then 52-year-old billionaire Jeffrey Epstein—an
investigation that ultimately revealed that Epstein assembled a network of
underage girls whom he sexually abused at his mansion in Palm Beach, Florida,
elsewhere in the United States, and overseas.
In 2006, at the Palm Beach Police Department’s request, the Federal Bureau
of Investigation (“FBI”) opened a federal investigation into Epstein’s and his
personal assistants’ use of facilities of interstate commerce to induce girls between
the ages of 14 and 17 to engage in illegal sexual activities. Thereafter, the U.S.
Attorney’s Office accepted the case for prosecution and assigned specific federal
prosecutors to the case.
The FBI established that Epstein used young female recruiters and paid
employees to find and bring minor girls to him, as often as three times a day, for
his own and others’ sexual gratification. Epstein also directed other people to
sexually abuse the minor girls, including his co-conspirator Nadia Marcinkova.
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This in-depth federal investigation proved that, between 2001 and 2007, Epstein
sexually abused more than 30 minor girls, and multiple co-conspirators either
procured the girls for Epstein’s sexual gratification or participated in the sexual
abuse themselves. The victims include the petitioners in this case, Jane Doe 1 and
Jane Doe 2, who were 15 years old when first sexually abused by Epstein.
B. Aug. 2006 Letter to Crime Victim about CVRA Rights
Throughout the two-year investigation, once a victim of Epstein’s sexual
abuse was identified, the lead Assistant U.S. Attorney (“AUSA”) assigned to the
case, A. Marie Villafana, sent a letter telling the victim that she was protected by
the CVRA and explaining her statutory rights under the CVRA.
For example, in 2006 and before an indictment was drafted in 2007, the U.S.
Attorney’s Office told petitioner Jane Doe 2 in a letter that she had statutory rights
“to confer with the attorney for the Government in the case,” “to be treated with
fairness,” and to petition the District Court if her CVRA rights were being violated.
See 18 U.S.C. § 3771(a), (d)(3). The Office’s 2006 letter explained that the
Department of Justice would make its “best efforts” to ensure Jane Doe 2’s CVRA
rights were protected. Later, in March 2007, the Office began sending similar
letters to Epstein’s other victims, informing them of their ongoing CVRA rights.
This initial position of the U.S. Attorney’s Office—that the petitioners had
ongoing CVRA rights—is not surprising given that the CVRA was enacted to
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protect crime victims’ rights and ensure their involvement in the criminal justice
process. United States v. Moussaoui, 483 F.3d 220, 234 (4th Cir. 2007); Kenna v.
U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006) (“The [CVRA] was enacted
to make crime victims full participants in the criminal justice system.”).
II. MAY 2007: FEDERAL INDICTMENT PREPARED
By May 2007, the U.S. Attorney’s Office had completed an 82-page
prosecution memo and a 53-page draft indictment against Epstein, charging him
with numerous federal crimes of sex trafficking minor victims. The prosecutors
were prepared to indict Epstein. For the victims, so far, so good. But what the
victims didn’t know is what was secretly going on behind the scenes.
III. JAN. – SEPT. 2007: PROSECUTORS NEGOTIATE WITH EPSTEIN
Meanwhile and unbeknownst to the victims, for over nine months in 2007
(from January to September), the U.S. Attorney’s Office was discussing with
Epstein’s defense team the forthcoming federal criminal charges. During this time,
Epstein’s defense team made multiple presentations to the Office to try to convince
them not to prosecute Epstein, maintaining he committed no federal crimes.3
3
Jeffrey Epstein’s defense team included at various times attorneys from multiple law
firms, such as: (1) Jay P. Lefkowitz, Kirkland & Ellis, New York, NY; (2) Roy Black, Black
Srebnick Kornspan & Stumpf, Miami, FL; (3) Gerald B. Lefcourt, Law Office of Gerald B.
Lefcourt, P.C., New York, NY (4) Lilly Ann Sanchez, Fowler White Burnett, Miami, FL;
(5) Jack A. Goldberger, Goldberger & Weiss, West Palm Beach, FL; and (6) Joe D. Whitley,
Alston & Bird, Washington D.C.; as well as Harvard Law Professor Alan Dershowitz. While not
all attorneys participated in each defense presentation, the record here reveals some activity by
each of Epstein’s defense attorneys during either 2007 or 2008.
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Those defense presentations were not successful. The record contains extensive
communications showing that, as of August 2007, the Office’s prosecutors were
recommending and ready to proceed with the federal indictment of Epstein.
In early September 2007, U.S. Attorney R. Alexander Acosta met with some
of Epstein’s defense team, along with the federal prosecutors assigned to Epstein’s
case and the Chief of the Child Exploitation and Obscenity Section of the
Department of Justice’s Criminal Division in Washington, D.C. Epstein’s defense
team again raised federalism-based arguments that were rejected. As U.S.
Attorney Acosta explained, “[a]fter considering the arguments raised at the
September 7th meeting, and after conferring with the FBI and with [the Chief of
the Child Exploitation and Obscenity Section], our Office decided to proceed with
the indictment.” At that time, the State of Florida had already charged Epstein
with one count of solicitation of prostitution.
IV. NON-PROSECUTION AGREEMENT
What happened next remains baffling, to put it mildly. During September
2007, Epstein’s defense attorneys engaged in more intensive pre-indictment plea
negotiations with the U.S. Attorney’s Office.
Although the record does not explain why, the Office then took the position
that two types of plea agreements could apply to Epstein’s federal crimes: (1) a
plea agreement to federal charges; or (2) a non-prosecution agreement, whereby
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the Office would agree not to federally prosecute Epstein and his co-conspirators,
in return for which Epstein would plead guilty to a mere two state prostitution-
solicitation charges and agree to an 18-month sentence in the county jail.
On September 16, 2007, Epstein’s counsel Jay Lefkowitz sent the U.S.
Attorney’s Office a proposed written agreement, wherein the Office would extend
immunity from federal prosecution to Epstein and certain co-conspirators. 4 The
next day, Epstein’s counsel Lefkowitz followed up, asking if the Office “intend[ed]
to make the deferred prosecution agreement public,” should Epstein agree to “go
that route.” AUSA Villafana responded: “A non-prosecution agreement would not
be made public or filed with the Court, but it would remain part of our case file. It
probably would be subject to a FOIA request, but it is not something that we would
distribute without compulsory process.”
The victims were not told that plea negotiations were ongoing, much less
that the Office was seriously considering a non-prosecution agreement granting
federal immunity to Epstein and his co-conspirators. Rather, the parties made
great efforts to keep that secret from the victims and the public, too.
4
In an e-mail to Lefkowitz, dated September 16, 2007, AUSA Villafana suggested
strategies to conceal portions of the plea deal from the courts, stating that a prosecutor had
“recommended that some of the timing issues be addressed only in the state agreement, so that it
isn’t obvious to the judge that we are trying to create federal jurisdiction for prison purposes.”
AUSA Villafana added: “I will include our standard language regarding resolving all criminal
liability and I will mention ‘co-conspirators,’ but I would prefer not to highlight for the judge all
of the other crimes and all of the other persons that we could charge.”
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A. Sept. 24, 2007: Execution and Terms of NPA
On September 24, 2007, the U.S. Attorney’s Office and Jeffrey Epstein
signed a seven-page agreement, entitled the “Non-Prosecution Agreement.”5 The
NPA provided that the Office would not prosecute Epstein or his co-conspirators in
the Southern District of Florida for federal felony crimes of sex trafficking more
than 30 minors if: (1) Epstein pled guilty in Florida State Court to two state
prostitution-solicitation charges, and (2) Epstein made a binding recommendation
that the State Court impose an 18-month sentence in the county jail. The crimes
listed in the NPA were: (1) sex trafficking of minors by force, fraud, or coercion,
in violation of 18 U.S.C. §§ 1591(a)(1) and 2; (2) conspiracy to travel and traveling
in interstate commerce for the purpose of engaging in illicit sexual conduct with
minor females, in violation of 18 U.S.C. § 2423(b), (e), and (f); and (3) conspiracy
to use and using means of interstate commerce to knowingly persuade, induce, or
entice minor females to engage in prostitution, in violation of 18 U.S.C. §§ 2422(b)
and 371.
5
The only four signature lines on the September 24, 2007 NPA were: (1) U.S. Attorney
Acosta by AUSA Villafana; (2) Jeffrey Epstein; (3) Gerald Lefcourt, Counsel to Jeffrey Epstein;
and (4) Lilly Ann Sanchez, Attorney for Jeffrey Epstein. From June 2005 to June 2009, Acosta
was the U.S. Attorney for the Southern District of Florida.
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As for the victims, the NPA added insult to injury. The NPA provided that
if and only if the victims agreed to waive any other claim for damages, the victims
could obtain an attorney paid for by Epstein and file 18 U.S.C. § 2255 civil
lawsuits against Epstein for restitution. Of course, restitution in a criminal case is
not contingent upon a victim giving up rights to pursue damages claims.
Even more striking, the NPA extended immunity to any “potential co-
conspirator” of Epstein’s, stating: “In consideration of Epstein’s agreement to
plead guilty and to provide compensation in the manner described above, . . . the
United States also agrees that it will not institute any criminal charges against any
potential co-conspirators of Epstein, including but not limited to Sarah Kellen,
Adriana Ross, Lesley Groff, or Nadia Marcinkova.” 6 Apparently, the co-
conspirators had not cooperated or assisted the government. Rather, the sole
consideration for their federal immunity was that Epstein plead to two state
charges and provide potential restitution to his victims, but only if the victims
waived all damages claims against Epstein. The NPA even stated “that this
agreement will not be made part of any public record.”7
6
At oral argument in this appeal, counsel for the respondent U.S. Attorney’s Office
agreed that it was highly unusual—never seen before—that the government would extend federal
immunity to Epstein’s co-conspirators without having the co-conspirators sign onto a plea
agreement or provide some cooperation in exchange for federal immunity. The co-conspirators
did not sign the NPA and were not listed as parties to it.
7
As the NPA was being signed, Epstein’s attorney Lefkowitz e-mailed AUSA Villafana,
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B. Office Does Not Confer with Crime Victims
Although the U.S. Attorney’s Office accepted the case for prosecution and
prepared a 53-page indictment, the Office never conferred with the victims about
the NPA and never told the victims that such an agreement was being considered,
much less being negotiated. While the Office spent untold hours negotiating the
NPA’s terms with Epstein’s skilled defense team, the Office never told the victims
that it was negotiating and signing an agreement that would grant federal immunity
to Epstein and his co-conspirators. The Office kept this information from
Epstein’s victims, despite earlier having sent most, if not all, of the girls the CVRA
letters, which advised that the victims had a “right to confer with the attorney for
the United States in the case” and a “right to be treated with fairness.”
V. SEPT. 2007 – JULY 2008: PROSECUTORS HIDE NPA
The U.S. Attorney’s Office also failed to tell the victims about the NPA for
at least nine months after it was executed. Instead, the Office misrepresented to
the victims that “this case” was still under investigation, advised them “to be
patient,” and never disclosed the government’s NPA with Epstein.
requesting: “Marie—Please do whatever you can to keep this [NPA] from becoming public.”
AUSA Villafana assured Lefkowitz that the NPA would be kept confidential.
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A. Prosecutors Negotiate With Defense about Notifying Victims
During that nine-month period, the U.S. Attorney’s Office and Epstein’s
defense team negotiated whether and to what extent the victims would be told
about the NPA’s resolution of the federal case. In this case, the Office admitted
that it was a deviation from the government’s standard practices to negotiate with
defense counsel about the extent of crime victim notifications. Nevertheless,
Epstein’s defense attorneys demanded that the victims not be told about the
resolution of the federal case because otherwise Epstein “will have no control over
what is communicated to the identified individuals [the victims] at this most
critical stage.”
Epstein, of course, did not want the victims to know there would be no
federal prosecution of his sex-trafficking-of-minors crimes if he pled guilty in State
Court to merely soliciting prostitution. Everyone knew the victims would be
disgusted, raise vigorous objections on the federal level, and try to convince the
State Court judge not to be beguiled into accepting such a state plea that was tied
to no federal prosecution for sex-trafficking crimes against more than 30 minor
victims. While his state plea did not happen until June 30, 2008, in the interim,
Epstein’s attorneys worked to keep the terms of the 2007 NPA secret until after
Epstein’s state plea was accepted and the deal was done.
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In later correspondence with Epstein’s attorneys, AUSA Villafana admitted
that Epstein did not want the U.S. Attorney’s Office to inform the State Attorney’s
Office of the facts supporting the additional state prostitution-solicitation charge,
nor did Epstein want federal victims to contact the State Court or prosecutor
because the state prosecutor’s “opinion may change if she knows the full scope of
[Epstein’s] actions.” To this date, the U.S. Attorney’s Office has presented no
evidence that it or anyone else told the State Court, either before or during
Epstein’s state hearing, about the secret consideration Epstein had negotiated with
the federal government—federal immunity for him and all co-conspirators—if the
State Court accepted his state plea.8
Consistent with Epstein’s demands, the U.S. Attorney’s Office did not notify
the victims about the NPA. But before acquiescing, the manner in which the
Office responded to Epstein’s demands unmasks the truth.
8
Epstein’s defense team had legitimate concerns that the State Court judge would not
accept Epstein’s plea if tied to such a broad, secret federal immunity deal. Under Florida law, a
State trial judge is never bound to honor a negotiated plea agreement. Goins v. State, 672 So. 2d
30, 31 (Fla. 1996). During a plea colloquy, a trial judge may announce that she is not bound by
the plea agreement because other factors make the trial judge’s concurrence impossible. King v.
State, 578 So. 2d 23, 24 (Fla. Dist. Ct. App. 1991); see also Fla. R. Crim. P. 3.171(d) (“After an
agreement on a plea has been reached, the trial judge may have made known to him or her the
agreement and reasons therefor prior to the acceptance of the plea. Thereafter, the judge shall
advise the parties whether other factors (unknown at the time) may make his or her concurrence
impossible.”). The NPA itself acknowledged that the entire deal was contingent on the State
Court judge accepting the negotiated state plea agreement and sentence.
If the victims had been told the truth about the 2007 NPA, they would have had ample
time to make their views known to the State Court before Epstein’s plea on June 30, 2008. If the
State Court rejected the plea, there was no federal immunity for Epstein and his co-conspirators.
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Initially, the Office responded that the government had statutory obligations
under the CVRA to notify the victims of the NPA, to confer with the victims, and
to tell them about upcoming events, such as Epstein’s state plea in return for no
federal prosecution. Here are examples of what the Office wrote Epstein’s
attorneys in November and early December of 2007:
• “The United States has a statutory obligation (Justice for All Act of 2004)9
to notify the victims of the anticipated upcoming events and their rights
associated with the agreement entered into by the United States and Mr.
Epstein in a timely fashion.”
• “Section 3771 . . . commands that ‘employees of the Department of
Justice . . . engaged in the detection, investigation, or prosecution of crime
shall make their best efforts to see that crime victims are notified of, and
accorded, the rights described in subsection (a).’”
• “Our Non-Prosecution Agreement resolves the federal investigation by
allowing Mr. Epstein to plead to a state offense. The victims identified
through the federal investigation should be appropriately informed, and our
[NPA] does not require the U.S. Attorney’s Office to forego its legal
obligations.”
• “[T]he Office believes that it has proof beyond a reasonable doubt that each
listed individual was a victim of Mr. Epstein’s criminal conduct while the
victim was a minor. The law requires us to treat all victims ‘with fairness
and with respect for the victim’s dignity and privacy.’ 18 U.S.C.
§ 3771(a)(8). We will not include any language that demeans the harm they
may have suffered.”
• “[W]e will not remove the language about contacting AUSA Villafana or
Special Agent Kuyrkendall with questions or concerns. Again, federal law
9
The CVRA was enacted as part of the Justice for All Act of 2004, Pub. L. No. 108-405,
§ 102, 118 Stat. 2260 (codified as amended at 18 U.S.C. § 3771 (2015). As does the Majority, I
quote the version of the CVRA in effect during the 2006 to 2008 events in question.
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requires that victims have a ‘reasonable right to confer with the attorney for
the Government in this case.’ 18 U.S.C. § 3771(a)(5).”
The evidence shows the Office repeatedly told Epstein’s attorneys that it had
CVRA obligations to notify and confer with the victims about the NPA and
upcoming events. As the state plea would resolve Epstein’s federal sex-trafficking
crimes, the CVRA, as well as basic decency and fairness, demanded the Office tell
the victims of that critical fact and about the State Court proceeding.
Yet, on December 19, 2007, U.S. Attorney Acosta sent a letter to Epstein’s
counsel addressing “the issue of victim’s rights pursuant to Section 3771.” U.S.
Attorney Acosta stated: “I understand that the defense objects to the victims being
given notice of time and place of Mr. Epstein’s state court sentencing
hearing. . . . We intend to provide victims with notice of the federal resolution, as
required by law. We will defer to the discretion of the State Attorney regarding
whether he wishes to provide victims with notice of the state proceedings[.]”
Despite U.S. Attorney Acosta representing that “[w]e intend to provide victims
with notice of the federal resolution, as required by law,” the Office never did that
before Epstein pled guilty in State Court on June 30, 2008, and the deal was
consummated.
B. 2008 Victims Misled
Another chapter in this sordid story. Before going to State Court, Epstein
apparently was not satisfied with his defense team’s success in securing the highly
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favorable NPA. In January 2008, Epstein’s attorneys sought higher-level review
within the Justice Department.10 U.S. Attorney Acosta agreed to allow Epstein to
delay further his State Court plea while his attorneys appealed to main Justice.
This time Epstein’s defense team got nowhere.
Nonetheless, during this review period, the U.S. Attorney’s Office still did
not tell the victims a signed NPA existed. Instead, on January 10, 2008, the
government sent Epstein’s victims letters misrepresenting that “[t]his case is
currently under investigation. This can be a lengthy process and we request your
continued patience while we conduct a thorough investigation.”
Jane Doe 1’s sworn testimony is revealing. On January 31, 2008, Jane Doe
1 met with AUSA Villafana, FBI agents, and another federal prosecutor and
provided additional details of Epstein’s sexual abuse of her. Jane Doe 1 said she
hoped Epstein would be prosecuted and that she was willing to testify against him
at trial. Based on the earlier letters she received, Jane Doe 1 believed the federal
prosecutors would contact her before reaching any final resolution. During that
meeting, however, the federal prosecutors and FBI agents still did not disclose to
10
Epstein wanted one last shot at convincing the U.S. government that there was no basis
for his federal criminal liability and he should not have to plead to anything. Epstein’s appeal
was unsuccessful. On June 23, 2008, the Office told Epstein’s attorneys that the Deputy
Attorney General had completed his review of the Epstein matter and “determined that federal
prosecution of Mr. Epstein’s case [wa]s appropriate.”
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Jane Doe 1 that the Office had signed the NPA, which barred Epstein’s federal
prosecution for sex-trafficking crimes against her.
The U.S. Attorney’s Office continued to conceal the existence of the NPA
from all the victims for months to come. In mid-June of 2008, Bradley Edwards,
the Fort Lauderdale, Florida attorney for several of Epstein’s victims, contacted
AUSA Villafana to inform her that he represented Jane Doe 1 and, later, Jane Doe
2. AUSA Villafana and Edwards discussed the possibility of federal charges being
filed against Epstein in the future. Edwards was led to believe that federal charges
could still be filed by the Office, with AUSA Villafana failing to mention the NPA
or any other possible resolution of Epstein’s federal case.
VI. JUNE 30, 2008: EPSTEIN’S STATE PLEA
On June 30, 2008, Epstein pled guilty in Florida State Court to
(1) solicitation of prostitution and (2) procuring a person under the age of 18 for
prostitution. That same day, the State Court sentenced Epstein to 18 months’
imprisonment in the county jail. As the Majority concedes, there is no indication
that any of Epstein’s victims were informed about the NPA or the terms of his state
plea until later. Maj. Op. at 6.
Having still not been informed of the resolution of Epstein’s federal case, on
July 3, 2008, attorney Edwards sent a letter to the U.S. Attorney’s Office
communicating the victims’ wishes that federal charges be filed against Epstein.
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Attorney Edwards explained: “We urge you to move forward with the traditional
indictments and criminal prosecution commensurate with the crimes Mr. Epstein
has committed, and we further urge you to take the steps necessary to protect our
children from this very dangerous sexual perpetrator.” Because Epstein was “a
sexual addict that focused all of his free time on sexually abusing children,”
Edwards emphasized that “[f]uture abuse and victimization is obvious to anyone
who really reviews the evidence in this case, and future sexual abuse of minors is
inevitable unless [Epstein] is prosecuted, tried and appropriately sentenced.”
VII. PROCEDURAL HISTORY
On July 7, 2008, Courtney Wild (proceeding as “Jane Doe 1”) filed an
emergency petition alleging that she was a victim of Epstein’s federal crimes and
that the U.S. Attorney’s Office had violated her CVRA rights (1) to confer with
federal prosecutors, (2) to be treated with fairness, (3) to receive timely notice of
relevant court proceedings, and (4) to receive information about restitution.
Two days later, on July 9, 2008, the U.S. Attorney’s Office responded,
arguing for the first time, that the CVRA did not apply at all to pre-indictment plea
negotiations with a potential federal defendant. Once sued, the Office changed its
position despite having earlier written the victims, and later Epstein’s defense
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team, that the victims had ongoing CVRA rights, and that the Office had statutory
obligations to accord the victims those rights.11
It was only in the Office’s July 9, 2008, responsive pleading that Jane Doe 1
first saw reference to the fact that, over nine months earlier in September 2007, the
Office had signed an agreement with Epstein to not prosecute him for federal
crimes if Epstein pled guilty to two state charges.
Also on July 9, 2008, the U.S. Attorney’s Office sent short letters to
petitioner Wild and Epstein’s other victims stating: (1) “the United States . . . was
prepared to name [each girl] in an Indictment as victims of an enumerated offense
by Mr. Epstein”; but (2) the “United States has agreed to defer federal prosecution
in favor of [Epstein’s] state plea and sentence, subject to certain conditions.” That
cursory notification still did not provide the full terms of the NPA, such as the
provision extending federal immunity to Epstein’s co-conspirators.12
11
In a footnote, the Majority cites to a 2010 opinion by the Justice Department’s Office of
Legal Counsel (“OLC”). Maj. Op. at 37 n.20. The Justice Department’s 2010 OLC opinion, like
the change of position by the Justice Department’s local U.S. Attorney’s Office, came only after
Epstein’s victims filed this lawsuit. See Mohasco Corp. v. Silver, 447 U.S. 807, 825, 100 S. Ct.
2486, 2497 (1980) (holding that an agency’s “‘interpretation’ of a statute cannot supersede the
language chosen by Congress”).
12
The Majority contends: “On the day that Epstein entered his guilty plea in June 2008,
some (but by no means all) victims were notified that the federal investigation of Epstein had
concluded” citing an e-mail AUSA Villafana sent to “Jason” (full name redacted) after Epstein’s
State Court hearing. Maj. Op. at 6. There is no evidence, however, that the two petitioners here,
their attorney Edwards, or other victims were told that the state plea was related to Epstein’s
crimes against them, much less that the state plea would foreclose the possibility of federal
prosecution for Epstein’s federal crimes against his victims.
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After multiple hearings, the District Court ordered the U.S. Attorney’s
Office to disclose the NPA to the victims. In August 2008, the petitioners finally
obtained a copy of the NPA. Among other relief, the victims sought rescission of
the NPA.
What followed was more than a decade of contentious litigation between the
victims, the U.S. Attorney’s Office, Epstein, and his various defense attorneys. 13
In 2011, the District Court “addresse[d] the threshold issue whether the CVRA
attaches before the government brings formal charges against a defendant.” Does
v. United States, 817 F. Supp. 2d 1337, 1341 (S.D. Fla. 2011). In a thorough
opinion, the District Court held that it does under the plain text of the CVRA. Id.
at 1341-43. Later, on February 21, 2019, the District Court ruled that the U.S.
Attorney’s Office entered into the NPA without first conferring with the victims
and violated the victims’ CVRA rights to confer and be treated fairly.14 Doe 1 v.
United States, 359 F. Supp. 3d 1201, 1218-22 (S.D. Fla. 2019).
After extensive briefing on remedies for the victims, Epstein was found dead
on August 10, 2019. On September 16, 2019, the District Court entered an order
13
Epstein and some of his defense team intervened to argue against victims obtaining
their correspondence about the negotiation and execution of the NPA. Although the petitioners
seek rescission of the NPA as to Epstein’s co-conspirators, the co-conspirators never moved to
intervene.
14
In a later order, the District Court explained that the petitioners’ “right to be treated
with fairness and to receive notice of court proceedings . . . flow from the right to confer and
were encompassed in the Court’s ruling finding a violation of the CVRA.”
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denying the victims any remedies and closed the case. As to Epstein, the District
Court determined that “there is no longer an Article III controversy” given his
death. As to the co-conspirators, the District Court found it lacked jurisdiction
over them.
Victim Wild filed a petition for writ of mandamus with this Court, seeking
review of the District Court’s order denying relief. See 18 U.S.C. § 3771(d)(3) (“If
the district court denies the relief sought, the movant may petition the court of
appeals for a writ of mandamus. . . . In deciding such application, the court of
appeals shall apply ordinary standards of appellate review.”).15
VIII. QUESTION PRESENTED
This appeal presents this legal question: Whether, after completing its
investigation, preparing a 53-page indictment, and conferring with Epstein’s
defense team about a pre-charge plea, the Office violated the victims’ CVRA rights
by (1) not conferring with any of Epstein’s victims before agreeing to the NPA,
(2) intentionally and unfairly concealing the NPA from the victims, and
(3) affirmatively misrepresenting the case status to the victims after the NPA was
executed. The answer depends solely on the text of the CVRA, to which I turn.
15
In this appeal, the Majority does not contest that: (1) our Court applies the ordinary
standards of appellate review; and (2) we review de novo statutory interpretation issues and any
fact findings for clear error. No party argues any fact-finding error occurred, and thus we review
de novo the District Court’s ruling that the victims had pre-charge CVRA rights. If the victims
had pre-charge CVRA rights to confer and be treated fairly, no party disputes those rights were
repeatedly violated by the U.S. Attorney’s Office.
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IX. CVRA’S STATUTORY TEXT
A. CVRA’s Bill of Rights for Victims
In interpreting the CVRA, our Court is guided by the traditional canons of
statutory construction. “Our ‘starting point’ is the language of the statute itself.”
EEOC v. STME, LLC, 938 F.3d 1305, 1313 (11th Cir. 2019) (quoting Harrison v.
Benchmark Elecs. Huntsville, Inc., 593 F.3d 1206, 1212-14 (11th Cir. 2010)). We
“assume that Congress used the words of the statute as they are commonly and
ordinarily understood and must construe the statute so each of its provisions is
given full effect.” United States v. McLymont, 45 F.3d 400, 401 (11th Cir. 1995).
Therefore, “[w]e do not look at one word or term in isolation, but instead we look
to the entire statutory context.” STME, 938 F.3d at 1314 (quoting Harrison, 593
F.3d at 1212).
The CVRA grants crime victims these eight rights in subsection (a):
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any public
court proceeding, or any parole proceeding, involving the crime or of
any release or escape of the accused.
(3) The right not to be excluded from any such public court proceeding,
unless the court, after receiving clear and convincing evidence,
determines that testimony by the victim would be materially altered if
the victim heard other testimony at that proceeding.
(4) The right to be reasonably heard at any public proceeding in the
district court involving release, plea, sentencing, or any parole
proceeding.
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(5) The reasonable right to confer with the attorney for the Government
in the case.
(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be treated with fairness and with respect for the victim’s
dignity and privacy.
18 U.S.C. § 3771(a) (2008) (emphasis added). These are not merely aspirational
principles. Section 3771(c)(1) directs that “[o]fficers and employees of the
Department of Justice . . . engaged in the detection, investigation, or prosecution of
crime shall make their best efforts to see that crime victims are . . . accorded[] the
rights described in subsection (a).” Id. § 3771(c)(1). And if crime victims’ rights
are violated, the CVRA provides a procedural mechanism—this lawsuit—whereby
the victims may assert their CVRA rights in federal court. Id. § 3771(d)(3).
Undisputedly, the petitioners qualify as “crime victims” as defined in the CVRA.
See id. § 3771(e) (“[T]he term ‘crime victim’ means a person directly and
proximately harmed as a result of the commission of a Federal offense.”).
B. Subsections 3771(a)(5) and (a)(8)
The two subsections at issue here are (a)(5) and (a)(8), which grant crime
victims “[t]he reasonable right to confer with the attorney for the Government in
the case” and “[t]he right to be treated with fairness.” 18 U.S.C. § 3771(a)(5), (8).
These two statutory rights are stated in plain language. The text of the two rights
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has no post-indictment temporal limitation on its face. The language of
§ 3771(a)(5) and (a)(8) is not ambiguous, intricate, obscure, or doubtful (as the
Majority suggests). Maj. Op. at 20 & n.8. As enacted, Congress granted these
rights to victims of crime, and though the rights are not wholly unlimited as
discussed later, Congress did not restrict these rights to only the time after an
indictment is filed in federal court. In interpreting a statute, when “the language at
issue has a plain and unambiguous meaning,” we “need go no further.” United
States v. St. Amour, 886 F.3d 1009, 1013 (11th Cir.), cert. denied, 139 S. Ct. 205(2018) (quoting United States v. Fisher, 289 F.3d 1329, 1337-38 (11th Cir.
2002)).16 Our statutory analysis thus should start and end with the language of
subsections (a)(5) and (a)(8).
The overall statutory structure of § 3771 also supports this plain text reading.
Beyond their plain language, what Congress omitted from subsections (a)(5) and
(a)(8) of § 3771, but expressly included in subsections (a)(2), (a)(3), and (a)(4), is
instructive too. In § 3771, subsection (a)(2) grants victims the right to “notice of
any public court proceeding”; subsection (a)(3) grants victims the right “not to be
16
As noted, the CVRA was enacted to protect crime victims’ rights and ensure their
involvement in the criminal justice process. See Moussaoui, 483 F.3d at 234; Kenna, 435 F.3d at
1016. In this context, a comprehensive construction of the victims’ rights to confer and be
treated fairly in § 3771(a)(5) and (a)(8) is fitting. See Yates v. United States, 574 U.S. 528, __,
135 S. Ct. 1074, 1081-82 (2015) (explaining that “[t]he plainness or ambiguity of statutory
language is determined [not only] by reference to the language itself, [but as well by] the specific
context in which that language is used, and the broader context of the statute as a whole”).
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excluded from any such public court proceeding”; and subsection (a)(4) grants
victims the right “to be reasonably heard at any public proceeding in the district
court.” 18 U.S.C. § 3771(a)(2)-(4).
In stark contrast, in subsections (a)(5) and (a)(8), Congress granted victims
rights to confer and be treated fairly without tying those rights to “public court
proceedings” or “public proceedings in the district court.” Congress’s omission of
the distinct phrase of “public court proceedings” in subsections (a)(5) and (a)(8) is
highly significant.
First, under the conventional rules of statutory construction, where Congress
has used a more limited term in one part of a statute, but left it out of other parts,
courts should not imply the term where it has been excluded. See Keene Corp. v.
United States, 508 U.S. 200, 208, 113 S. Ct. 2035, 2040 (1993) (“[W]here
Congress includes particular language in one section of a statute but omits it in
another . . . , it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”); Russello v. United States, 464
U.S. 16, 23, 104 S. Ct. 296, 300 (1983) (declining to read a term appearing in two
subsections of a statute to have the same meaning where there is “differing
language” in the subsections).
Second, “[a] familiar principle of statutory construction . . . is that a negative
inference may be drawn from the exclusion of language from one statutory
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provision that is included in other provisions of the same statute.” Hamdan v.
Rumsfeld, 548 U.S. 557, 578, 126 S. Ct. 2749, 2765 (2006); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 170
(2012) (“[W]here a document has used one term in one place, and a materially
different term in another, the presumption is that the different term denoted a
different idea.”).
In other words, had Congress wanted the conferral and fairness rights to
apply only after the government has filed an indictment in court, Congress could
have easily written subsections (a)(5) and (a)(8) more narrowly, as it did in other
parts of subsection (a). But “the presumed point of using general words is to
produce general coverage—not to leave room for courts to recognize ad hoc
exceptions.” Scalia & Garner, supra at 101 (“General terms are to be given their
general meaning (generalia verba sunt generaliter intelligenda).”). Indeed, the
§ 3771(a) subsections explicitly tied to court proceedings show that when Congress
wants to limit crime victims’ rights to post-indictment court proceedings it knows
how to do so and does so expressly. The CVRA’s text draws a clear distinction
between a victim’s rights to confer and be treated fairly and a victim’s rights to
have notice of and participate in “public court proceedings,” and our Court is
required to enforce the statute’s distinction as Congress wrote and enacted it.
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C. Subsections 3771(c) and (d)
Two other CVRA subsections—§ 3771(c) and (d)—also support my
conclusion that Epstein’s victims had the rights to confer and be treated fairly
before plea negotiations were completed. “It is a fundamental canon of statutory
construction that the words of a statute must be read in their context and with a
view to their place in the overall statutory scheme.” Home Depot U.S.A., Inc. v.
Jackson, 587 U.S. __, __, 139 S. Ct. 1743, 1748 (2019) (quoting Davis v. Mich.
Dep’t of Treasury, 489 U.S. 803, 809, 109 S. Ct. 1500, 1504 (1989)). “Ultimately,
context determines meaning.” Johnson v. United States, 559 U.S. 133, 139, 130
S. Ct. 1265, 1270 (2010). Subsections (c) and (d) not only provide context for
subsection (a), but expressly refer to the rights in subsection (a).
Section 3771(c), titled “Best efforts to accord rights,” instructs that the
Justice Department and “other departments and agencies of the United States
engaged in the detection, investigation, or prosecution of crime shall make their
best efforts to see that crime victims are . . . accorded[] the rights described in
subsection (a).” 18 U.S.C. § 3771(c)(1) (emphasis added). Logically, there would
be no reason to mandate that federal agencies involved in crime “detection” or
“investigation” see that victims are accorded their CVRA rights if those rights did
not exist pre-charge. Indeed, the use of disjunctive wording—the “or”—indicates
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agencies that fit either description must comply, and not just, for example, the FBI,
which is at times engaged in both crime investigation and prosecution.
A victim’s right to conferral is with the government’s attorney in the case,
not with the FBI. But the fact that the FBI has a “best efforts” duty during the
criminal investigation to see that a victim’s conferral rights are honored is another
textual signal that the victim has conferral rights pre-charge, where the case has
matured to the point that a government attorney is assigned.
Lest any doubt remains, the CVRA’s venue provision in § 3771(d)(3)
conclusively demonstrates that the Act gives crime victims rights pre-charge.
Section 3771(d)(3) provides: “The rights described in subsection (a) shall be
asserted in the district court in which a defendant is being prosecuted for the crime
or, if no prosecution is underway, in the district court in the district in which the
crime occurred.” Id. § 3771(d)(3) (emphasis added).
Read most naturally, this venue provision provides that, if a prosecution is
underway, victims may assert their rights in the ongoing criminal action. Id. If,
however, “no prosecution is underway,” victims may assert their rights in the
district court of the district in which the crime occurred. Id. And if a crime
victim’s CVRA rights may be enforced before a prosecution is formally underway
in district court, then to avoid a strained reading, those rights must attach at some
point before an indictment formally charges the defendant with the crime.
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So how does the Majority resist the plain reading of the venue provision in
§ 3771(d)(3)? To be fair, the Majority admits first that: “Petitioner’s interpretation
of subsection (d)(3) is not implausible—that provision could be read to mean that
CVRA rights attach before the commencement of criminal proceedings.” Maj. Op.
at 33. But then the Majority argues that, after a criminal case is totally over, there
is no prosecution underway and hence this venue provision is about “post-
judgment” matters. Id. at 35-36. The Majority’s reading of § 3771(d)(3) does not
comport with how the word “underway” is ordinarily or commonly understood. In
everyday parlance, if “a process, project, [or] activity,” is not “underway,” we
generally understand that to mean it has not yet begun. Id. at 35. It is a stretch to
say that when something is not “underway,” it is commonly or ordinarily
understood to mean that the something is completed. 17
In addition, the Majority’s interpretation of the phrase—“if no prosecution is
underway”—makes no sense because a post-judgment action would logically be
filed in the district court where the conviction was entered. Even the Majority
17
Alternatively, the Majority argues that § 3771(d)(3)’s “no prosecution is underway”
provision applies to the very narrow and specific period between the filing of a criminal
complaint and levying formal charges by indictment. Maj. Op. at 33-35. But there is, of course,
no such temporal limitation in the plain language of § 3771(d)(3), nor is there any indication this
provision applies only to the subset of criminal proceedings involving a complaint. It is also not
readily apparent why the Majority only looks to the Sixth Amendment right to counsel for its
construction of “prosecution” and not also to the Sixth Amendment’s speedy trial right in all
criminal “prosecutions.” Id. at 34. The Sixth Amendment speedy trial right “may attach before
an indictment and as early as the time of arrest and holding to answer a criminal charge.” United
States v. Gouveia, 467 U.S. 180, 190, 104 S. Ct. 2292, 2298 (1984).
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“concede[s] that this reading isn’t perfectly seamless, in that it would require the
victim to file her post-judgment motion ‘in the district in which the crime
occurred’ rather than, as one might expect, in the district in which the prosecution
occurred and the conviction was entered.” Id. at 36 n.19.
Not “perfectly seamless” is an odd statutory interpretation. The Majority’s
faulty interpretation actually makes this part of the venue provision superfluous.
See Corley v. United States, 556 U.S. 303, 314, 129 S. Ct. 1558, 1566 (2009)
(“[O]ne of the most basic interpretive canons [is] that a statute should be construed
so that effect is given to all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.”); Garcia v. Vanguard Car Rental USA, Inc.,
540 F.3d 1242, 1247 (11th Cir. 2008) (stating under the canon against surplusage,
“we strive to give effect to every word and provision in a statute when possible”).
Our job is to enforce the statute as written by Congress.
In sum, the victims’ two statutory rights—to confer and be treated fairly—
though not unlimited, have no bright-line, post-indictment temporal restriction on
their face. See 18 U.S.C. § 3771(a)(5), (8). Federal agencies and prosecutors
engaged in the “detection, investigation, or prosecution” of crime “shall make their
best efforts” to see that crime victims are “accorded[] the rights described in
subsection (a).” See id. § 3771(c)(1). And “if no prosecution is underway,” the
venue provision directs victims that “[t]he rights described in subsection (a) shall
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be asserted . . . in the district court in the district in which the crime occurred.” See
id. § 3771(d)(3).
D. Majority’s Flawed Statutory Analysis
So how in the holy name of plain text does the Majority add such a
substantive and temporal restriction on the victims’ rights to confer and be treated
fairly and hold that victims have no CVRA rights until after the government files
an indictment and commences proceedings? The Majority hacks away at the plain
text with four tools.
First, the Majority cherry picks the meaning of “case” in § 3771(a)(5) and
narrows it to mean judicial case only. Maj. Op. at 22-23. “Case,” however, has
long had a much broader meaning than the Majority uses. As stated in dictionary
definitions, “case” is both “a circumstance or situation (as a crime) requiring
investigation or action by the police or other agency” and “the matters of fact or
conditions involved in a suit: a suit or action in law or equity.” Case, Webster’s
Third New International Dictionary 345 (2002). Likewise, in Black’s Law
Dictionary, the term “case” can mean both “[a] civil or criminal proceeding, action,
suit, or controversy at law or in equity ” and “[a]
criminal investigation .” Case, Black’s Law Dictionary 258-59
(10th ed. 2014). As shown in my factual background, everyone involved in
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Epstein’s case—from AUSA Villafana, to the Deputy Attorney General, and even
Epstein’s defense team—called this a “case” before an indictment was filed.
The Majority brushes aside the fact that the term “case” can mean both a
judicial case and an investigative case on the basis that Black’s first defines “case”
as a civil or criminal proceeding and only second as a criminal investigation. Maj.
Op. at 22-23.18 But since when is statutory interpretation as simple as picking the
first definition listed in a Black’s dictionary entry to the exclusion of a word’s
ordinary meaning? The Majority cites no legal support for its “first listed
dictionary definition” canon of construction. 19
18
The Majority argues: “Although it’s true, at least in the abstract, that the term ‘case’ can
mean either thing, in legal parlance the judicial-case connotation is undoubtedly primary.” Maj.
Op. at 22-23.
19
As to the term “case,” even the Majority cites Chavez v. Martinez, 538 U.S. 760, 766,
123 S. Ct. 1994, 2000-01 (2003), which supports my conclusion that the CVRA’s conferral right
attaches pre-charge. See Maj. Op. at 23. In Chavez, the Supreme Court construed the Fifth
Amendment’s Self-Incrimination Clause, which prohibits a person from being “compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. The Supreme Court
concluded the phrase “criminal case” “requires the initiation of legal proceedings” and does not
“encompass the entire criminal investigatory process” because a person can only be compelled to
be “a witness against himself” in his own criminal prosecution. Chavez, 538 U.S. at 766, 123 S.
Ct. at 2000-01. But Chavez itself points out that, for the target of a criminal case, “legal
proceedings” for purposes of the Fifth Amendment privilege against self-incrimination includes
pre-indictment grand jury proceedings—at which the target cannot be compelled to testify. Id. at
767-68, 123 S. Ct. at 2001. More importantly for this case, the Supreme Court clarified: “We
need not decide today the precise moment when a ‘criminal case’ commences; it is enough to say
that police questioning does not constitute a ‘case’ any more than a private investigator’s
precomplaint activities constitute a ‘civil case.’” Id. at 766-77, 123 S. Ct. at 2001. Here, the
CVRA conferral right is with the government’s attorney in the case, not with the police or an
investigator. Not only did the Office target Epstein, but it drafted an indictment and met with
Epstein’s defense counsel about a plea in the case. To say that mature stage is not a CVRA
“case” under Chavez’s reasoning is illogical.
The Majority also cites to Blyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1872) for
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Although “case” means both criminal investigation and formal criminal
proceedings, it is worth noting whom the conferral right is between: the victim and
the attorney for the government. That fits the petitioners’ claim that once the
criminal case has matured to plea negotiations by “the attorney for the Government
in the case” with defense counsel, the victims had the right to know that and to
confer with the government’s attorney.
As its second instrument, the Majority drills down on the meaning of “the
attorney for the Government” in § 3771(a)(5). The Majority argues that it means
one attorney and therefore the conferral right “attaches only after proceedings have
begun, at which point that particular person will presumably be more readily
identifiable.” Maj. Op. at 23-24. I don’t quarrel with the fact that an attorney
needs to be “readily identifiable,” as the Majority puts it. But the Majority
wrongly concludes that happens only once court proceedings begin after a formal
indictment. That conclusion is divorced from reality and sorely lacking in
explanation. Who does the Majority think procures an indictment—just some
random attorney not assigned to the case pre-charge? Nonsense. Contrary to the
Majority’s presumption, specific government attorneys are routinely assigned to
the unremarkable proposition that the words “case” and “cause” are synonyms and can “mean[] a
proceeding in court, a suit or action.” Maj. Op. at 23. But if in Chavez, over 130 years after
Blyew, the Supreme Court still hasn’t defined the precise moment a criminal case commences, I
don’t see how Blyew supports the Majority’s proposition that a “case” means only post-
indictment proceedings.
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draft indictments and handle pre-charge matters. Once an investigation is
completed, the case has matured to the indictment-drafting stage and pre-charge
plea negotiations with defense counsel have begun, there is obviously a “readily
identifiable” attorney in the case.
What I quarrel with is the Majority’s leap from this statutory phrase to its
mistaken conclusion that this phrase translates to the Majority’s claimed post-
indictment restriction on the conferral right. Notably, the pre-charge period has
become crucial to white-collar defense attorneys, who are hired to represent
potential defendants pre-charge precisely in order to negotiate with the already
assigned, readily identifiable prosecutor and extract the best plea deal in advance
of any indictment. The Majority’s pre-charge rule will deny victims’ CVRA rights
to confer and fairness in cases involving white-collar and other wealthy defendants
who commonly engage in pre-charge plea negotiations.
Jeffrey Epstein’s case illustrates my point. The U.S. Attorney’s Office
assigned specific attorneys, with AUSA Villafana being the lead prosecutor and
primary attorney who negotiated with Epstein’s defense team. And Epstein’s
defense team spent days negotiating with the Office to extract the best plea deal
pre-charge. As such, there was a readily identifiable attorney—“the attorney for
the Government”—for Epstein’s victims to confer with even though formal court
proceedings had not yet commenced. We should take the victims’ rights granted in
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§ 3771(a)(5) and (a)(8) at face value and not restrict them to benefit the privileged
few.20
As its third tool to axe the plain text, the Majority contends that its reading
of § 3771(a)(5) and (a)(8) is supported by the canon noscitur a sociis, that is, “‘a
word is known by the company it keeps.’” See S.D. Warren Co. v. Me. Bd. of
Envtl. Prot., 547 U.S. 370, 378, 126 S. Ct. 1843, 1849 (2006); Maj. Op. at 25-26.
Do not fall for this. The noscitur a sociis principle is a “useful rule of construction
where words are of obscure or doubtful meaning and then, but only then, its aid
may be sought to remove the obscurity or doubt by reference to the associated
words.” Russell Motor Car Co. v. United States, 261 U.S. 514, 520, 43 S. Ct. 428,
430 (1923). But here, the meaning of the plain words in § 3771(a)(5) and (a)(8) is
not in doubt and all other contextual clues support that meaning. Thus, the canon
cannot be invoked to defeat Congress’s decision to grant crime victims these
plainly-worded rights of conferral and fairness. See Ali v. Fed. Bureau of Prisons,
552 U.S. 214, 226-27, 128 S. Ct. 831, 839-40 (2008) (rejecting the invocation of
20
The Majority does not dispute that prosecutors and defense counsel routinely negotiate
pre-charge plea agreements, particularly in white-collar cases. Paul G. Cassell, et al., Crime
Victims’ Rights During Criminal Investigations? Applying the Crime Victims’ Rights Act
Before Criminal Charges Are Filed, 104 J. Crim. L. and Criminology 59, 84 (2014). Guilty
pleas, in fact, account for over 97% of all criminal convictions obtained by the government. See
U.S. Courts, Judicial Business 2019 Tables: Criminal Defendants Terminated, by Type of
Disposition and Offense (Table D-4) (Sept. 30, 2019) (only 1,663 of the 78,767 defendants
convicted of federal crimes in the year ending September 30, 2019, were found guilty by a judge
or jury after a criminal trial; the rest pled guilty), https://www.uscourts.gov/judicial-business-
2019-tables.
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this canon as an “attempt to create ambiguity where the statute’s text and structure
suggest none”).
Moreover, the cases the Majority cites for this canon involved statutes with
much stronger and closer contextual clues than in § 3771(a). See Gutierrez v. Ada,
528 U.S. 250, 254-58, 120 S. Ct. 740, 743-46 (2000) (applying the canon to narrow
the phrase “any election” where it was closely surrounded by six specific
references to gubernatorial elections); Lagos v. United States, 584 U.S. __, __, 138
S. Ct. 1684, 1688-89 (2018) (applying the canon to narrow the words
“investigation” and “proceedings” to government investigations and criminal
proceedings where the words were closely surrounded by three specific expenses
victims would incur during government investigations and prosecutions, but not in
private investigations and bankruptcy proceedings).
Importantly too, the three subsection (a) rights in § 3771 that refer to court
or public “proceeding[s]” are rights that could not exist absent such a proceeding.
A victim’s right to receive “timely notice of,” “not . . . be excluded from,” or “be
reasonably heard at” a proceeding would not attach until the time when such a
proceeding would or could be held. See 18 U.S.C. § 3771(a)(2)-(4). Those rights
are contingent on the existence of a court proceeding, of which a victim might be
notified, from which a victim might be excluded, or at which a victim might be
heard. In contrast, a victim’s rights to confer or be treated fairly in no way flow
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from or presuppose ongoing court proceedings. It makes little sense to take the
inherent temporal limits placed on rights explicitly tied to and dependent upon
court proceedings and transfer them to rights which do not carry that particular
limitation.
Although public court proceedings are mentioned in three different rights in
§ 3771(a)(2)-(4), and crime victims have the right to be protected from the accused
in § 3771(a)(1), as well as the right to “full and timely restitution” in § 3771(a)(6),
nothing in the overall statutory context suggests subsection (a) is focused
exclusively on victims’ rights accruing only after the filing of an indictment. See
Ali, 552 U.S. at 225-26, 128 S. Ct. at 839-40 (refusing to apply the canon noscitur
a sociis to narrow the phrase “any other law enforcement officer” in 28 U.S.C.
§ 2680(c) to the scope of the phrase that preceded it, “any officer of customs or
excise,” because “nothing in the overall statutory context suggests that customs
and excise officers were the exclusive focus of the provision”); see also Beecham
v. United States, 511 U.S. 368, 371, 114 S. Ct. 1669, 1671 (1994) (explaining that
the noscitur a sociis “canon of construction is by no means a hard and fast rule”).
The temporal limitations in other § 3771(a) subsections are not inconsistent in any
way with the conclusion that crime victims’ rights to confer and be treated fairly
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“sweep[] as broadly as [the] language suggests.”21 See Ali, 552 U.S. at 226, 128 S.
Ct. at 840.
The Majority’s fourth attempted blow at the CVRA’s plain text in
subsections (a)(5) and (a)(8) comes via a marred reading of the word “motion” in
subsection (d)(3). Section 3771(d)(3) provides that a CVRA victim asserts her
subsection (a) rights in the district court by filing a “[m]otion for relief.” 18 U.S.C.
§ 3771(d)(3). Again, “if no prosecution is underway,” that motion is to be filed “in
the district court in the district in which the crime occurred.” Id. Once filed, “[t]he
district court shall take up and decide any motion asserting a victim’s right
forthwith.” Id.In considering the usage of “motion” in § 3771(d)(3), the Majority asserts
that a “motion” is solely a request filed within the context of an ongoing judicial
21
Unable to find support in the CVRA’s plain text, the Majority turns to language in an
older victims-rights enactment—the Victims’ Rights and Restitution Act of 1990 (“VRRA”).
Maj. Op. at 38-41. But the Majority fails to recognize the CVRA repealed significant parts of
the VRRA because the legislation was ineffective. See Justice for All Act of 2004, § 102(c).
The CVRA’s legislative history refers to earlier unsuccessful victims’ litigation under the VRRA
and cautions that “[i]t is not the intent of this bill that its significance be whittled down or
marginalized by the courts or the executive branch. [The CVRA] . . . is meant to correct, not
continue, the legacy of the poor treatment of crime victims in the criminal [justice] process.”
150 Cong. Rec. S4269 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein).
In any event, the VRRA did not contain any “right to confer,” or a “right to be treated
with fairness,” and thus it does not provide guidance for construing the CVRA’s conferral and
fairness rights here. More still, as the Majority hints at, had Congress wanted to limit the
CVRA’s conferral and fairness rights to certain stages of a criminal case, it could have simply
drafted the legislation more narrowly and tied those rights to “charges,” “trial[s],” “hearing[s],
and “proceedings” like it did with different rights in the VRRA. See Maj. Op. at 39-40. When
Congress wants to limit victims-rights protections to only certain stages of a criminal case, it
knows how to do so.
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proceeding. Maj. Op. at 27-28. The Majority argues that, since CVRA rights can
only be asserted in a “mid-proceeding ‘motion[],’” the CVRA’s protections apply
only after court proceedings have started. See id. at 28.
As with “case,” the Majority slices in half the definition of the word
“motion.” The common legal definition of “motion” is more general and broader:
a motion is “[a] written or oral application requesting a court to make a specified
ruling or order.” Motion, Black’s, supra, at 1168. This general definition
encompasses a motion initiating a new lawsuit or proceeding, as well as one filed
mid-proceeding. In fact, the federal rules and statutes allow quite a few motions to
initiate new proceedings in the district court, such as motions to quash grand jury
and other subpoenas, Fed. R. Crim. P. 17(c)(2), and motions to vacate, set aside, or
correct sentences, 28 U.S.C. § 2255. See also 28 U.S.C. § 1361 (mandamus
proceedings are initiated as a new lawsuit). This very case is a free-standing civil
action litigated for a decade because the CVRA expressly provides that “if no
prosecution is underway,” the “[m]otion for relief” is filed “in the district court in
the district in which the crime occurred.” 18 U.S.C. § 3771(d)(3). If anything,
§ 3771(d)(3) demonstrates that the Majority has added a very substantive
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restriction—victims have no CVRA rights until an indictment commences court
proceedings—that has no meaningful footing in the text of the statute.22
E. In re Dean, 527 F.3d 391 (5th Cir. 2008)
The only other circuit court to address this precise issue has come to the
same conclusion as I do. The Fifth Circuit has held: “‘[T]here 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.’ 18 U.S.C. § 3771(a)(5).” In re Dean, 527
F.3d at 394. The facts of In re Dean are instructive too.
After an explosion at a refinery owned and operated by BP Products North
America Inc. (“BP”) killed 15 people and injured more than 170, the Department
of Justice investigated and decided to bring federal charges against BP. Id. at 392-
93. Before filing them, the government negotiated a plea deal with BP. Id. at 392.
At the government’s request, the district court entered an ex parte order that
prohibited the government from notifying the victims of a potential plea agreement
until after one was executed. Id. at 392-93. Later, the government and BP signed
a plea agreement without the government’s attorneys conferring with the victims.
Id. at 393, 395.
22
Let’s be clear: If the Majority’s view holds, this civil case should have been dismissed
at its very inception because the Office never filed a formal indictment.
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The Fifth Circuit concluded that the government violated the victims’ right
to confer under § 3771(a)(5) by executing the plea agreement without informing
the victims of the likelihood of the criminal charges and learning the victims’
views on the possible details of the plea bargain. Id. at 394.
Here, similar to the posture in In re Dean, the U.S. Attorney’s Office
investigated Epstein’s sex-trafficking crimes, decided to bring federal charges
against him, and engaged in pre-indictment plea negotiations with Epstein’s
defense team. The Office and Epstein then executed an NPA, extending immunity
to Epstein and his co-conspirators, without ever conferring with Epstein’s victims
in violation of § 3771(a)(5). What’s worse, here, the Office deliberately concealed
the NPA’s existence and misled the victims to believe that federal prosecution was
still a possibility, telling them to be “patient” while the investigation proceeded.
The Majority heavily criticizes the Fifth Circuit’s In re Dean for merely
“echo[ing]” the Texas district court’s conclusion that “[t]here are clearly rights
under the CVRA that apply before any prosecution is underway” and as lacking
discussion of the CVRA’s text, history, or structure. Maj. Op. at 49-50 n.25. What
the Majority leaves out is that the Texas district court’s decision—echoed by the
Fifth Circuit—contains a thorough examination of the CVRA’s text, history, and
structure, which led it to conclude that § 3771(a)(5)’s right to confer and
§ 3771(c)’s related notice obligation apply to the period before a charging
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instrument is filed. See United States v. BP Prods. N. Am. Inc., No. H-07-433,
2008 WL 501321 at *11-15 (S.D. Tex. Feb. 21, 2008). We should join our Fifth
Circuit sister.
F. Majority’s Slippery Slopes and Policy Arguments
The Majority invokes a parade of horribles—“a jarring result”—that it
believes would follow if (1) the CVRA was interpreted to grant crime victims the
right to confer with the government’s attorney before an indictment is filed and
(2) courts were “[f]reed from any line limiting the Act’s applicability” to post-
charge court proceedings. Maj. Op. at 31, 47. The Majority suggests that
interpreting § 3771(d)(3)’s “no prosecution is underway” clause to mean that
CVRA rights attach pre-charge would open the floodgates to victim lawsuits
seeking to make prosecutors consult with victims before “law-enforcement officers
conduct a raid, seek a warrant, or conduct an interrogation[.]” Id. at 36. The
Majority also posits that interpreting the CVRA to grant rights during the
“investigation” of a crime would “require law-enforcement officers to ‘confer’
with victims . . . before conducting a raid, seeking a warrant, making an arrest,
interviewing a witness, convening a lineup, or conducting an interrogation.” Id. at
31.
Like all slippery slope arguments, the soundness of the Majority’s position
depends on “an empirical prediction that a proposed rule will increase the
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likelihood of some other undesired outcome occurring.” See B.H. ex rel. Hawk v.
Easton Area Sch. Dist., 725 F.3d 293, 317 (3d Cir. 2013); Frederick
Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 381 (1985) (“[A] persuasive
slippery slope argument depends for its persuasiveness on temporally and spatially
contingent empirical facts,” and “without empirical evidence” of an underlying
reality, “the slippery slope argument has nothing on which to stand.”). Yet, the
Majority offers no empirical basis for its slippery slope arguments or its professed
need to add, by judicial fiat, a bright-line, post-indictment restriction on the
CVRA’s plain text.
What’s more, the actual facts show the Majority’s feared hypotheticals are
pure conjecture. For 12 years, it’s been the rule in the Fifth Circuit that crime
victims have the right to confer with the government’s attorney before formal
criminal proceedings have commenced. Yet there is no evidence whatsoever that
federal prosecutors in Texas, Louisiana, and Mississippi must confer with crime
victims before law-enforcement officers “conduct[] a raid, seek[] a warrant, mak[e]
an arrest, interview[] a witness, conven[e] a lineup, or conduct[] an interrogation.”
And in the nine years since the District Court’s 2011 opinion in this case—also
holding that crime victims have the right to confer with government’s attorney pre-
charge—we haven’t seen reports that federal prosecutors in the Southern District
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of Florida are conferring with victims before law enforcement conducts a raid or
convenes a lineup, for example. The Majority’s misgivings are illusions.
G. Limiting Principles in the CVRA
Besides lacking empirical plausibility, the Majority’s feared hypotheticals
are legally implausible and ignore several limiting criteria contained in the text of
the CVRA itself. In this regard, here are the Majority’s stated worries: (1) if a
victim’s rights can attach pre-charge, then there is “no logical stopping point” and
no “limiting criterion,” see Maj. Op. at 36, 52; (2) “there is essentially no limit to
the sorts of pre-charge relief that an enterprising movant [victim] could seek—or
that an innovative judge might grant,” see id at 48 n.24; and (3) if crime victims
have rights pre-charge, then courts would intrude on prosecutorial discretion
because: “Freed from any line limiting the Act’s applicability to the post-charge
phases of a prosecution, courts would be empowered to issue injunctions requiring
(for instance) consultation with victims before raids, warrant applications, arrests,
witness interviews, lineups, and interrogations,” see id. at 47.
While the Majority scrutinizes the text of § 3771(c)(1) and (d)(3) for its
limiting principle and finds none for subsection (a)(5)’s conferral right, it
conspicuously overlooks the text of the conferral right itself, which contains
powerful limiting criteria. First, § 3771(a)(5)’s conferral right is with “the attorney
for the Government in the case,” not with police or investigators. That alone
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resolves some of the Majority’s slippery slope concerns because the CVRA does
not give crime victims the right to confer with anyone other than the government’s
attorney.
Second, and relatedly, as the Majority concedes, § 3771(a)(5)’s conferral
right presupposes that a “readily identifiable” attorney for the government has been
assigned to the case. As even the Majority recognizes, that also means the case has
matured beyond the police investigative stage before the right applies.
Third, § 3771(a)(5) grants crime victims the right to confer with the
government’s attorney, but only to the extent that conferral is “reasonable.” The
Majority summarily discards this reasonableness limitation as “squishy.” Maj. Op.
at 31. Yet, a victim’s “reasonable right to confer” is a forceful limiting principle
and embodies a common, workable legal standard that is sufficient to stave off the
Majority’s speculations about “enterprising” crime victims and “innovative”
judges. Reasonableness has long stood the test of time in limiting other actors’
conduct. See, e.g., Hardy v. Cross, 565 U.S. 65, 69-70, 132 S. Ct. 490, 493-94
(2011) (for purposes of the Sixth Amendment’s Confrontation Clause, the “lengths
to which the prosecution must go to produce a witness” is a “question of
reasonableness”); United States v. Banks, 540 U.S. 31, 35-36, 124 S. Ct. 521, 524-
25 (2003) (for purposes of the Fourth Amendment, the execution of a warrant is
subject to a reasonableness standard); Ohio v. Robinette, 519 U.S. 33, 39, 117 S.
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Ct. 417, 421 (1996) (“We have long held that the ‘touchstone of the Fourth
Amendment is reasonableness.’”); Kyles v. Whitley, 514 U.S. 419, 432-33, 115
S. Ct. 1555, 1565 (1995) (under the Due Process Clause and Brady v. Maryland,
373 U.S. 83, 83 S. Ct. 1194 (1963), prosecutors must disclose all evidence, upon
request, that is favorable to the defense, so long as the evidence is “material,”
meaning it is reasonably probable that the result of the proceeding would have
been different had the evidence been disclosed); Doggett v. United States, 505 U.S.
647, 651, 654, 656, 112 S. Ct. 2686, 2690, 2692-93 (1992) (in determining whether
the government violated a defendant’s Sixth Amendment speedy trial right, courts
must consider, inter alia, whether any delays attributable to the prosecution were
reasonable); Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S. Ct. 1874, 1881
(1989) (prison regulations affecting the sending of publications to prisoners must
be analyzed under a reasonableness standard); Strickland v. Washington, 466 U.S.
668, 688, 104 S. Ct. 2052, 2065 (1984) (“The proper measure of attorney
performance” under the Sixth Amendment “remains simply reasonableness under
prevailing professional norms.”).
Looking beyond the text of § 3771(a)(5), the conferral right is also subject to
the CVRA’s express mandate that nothing in the Act “shall be construed to impair
the prosecutorial discretion of the Attorney General or any officer under his
direction.” 18 U.S.C. § 3771(d)(6). Likewise, only a “crime victim” has the
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conferral right, which limits the right to a person “directly and proximately harmed
as a result of the commission of a Federal offense.” Id. § 3771(e). Taken together,
these statutory provisions bound the conferral right, such that the Majority’s
trepidations are too far-fetched to justify disregarding the CVRA’s plain text. The
Majority does not cite a single factual incident or judicial decision where its
apprehensions have become reality. Despite its best efforts, the Majority has
identified no reason to contravene the CVRA’s plain text as Congress enacted it.
Because the Majority’s blanket restriction denies victims all conferral rights
during the pre-charge period, the Majority admits that its rule “will not prevent
federal prosecutors from negotiating ‘secret’ plea and non-prosecution
agreements” pre-charge. Maj. Op. at 52. In light of the public outcry about the
Epstein case, the Majority says it “can only hope” that prosecutors “will not do
so.” Id. at 52-53. Let’s distill this further. The Majority is more afraid of a future
“crime victim” potentially asking a “readily identifiable” government “attorney” to
confer “reasonably” with her pre-charge, than it is of secret pre-charge plea deals
for wealthy defendants, even though it’s now common practice for them to seek
the best plea deal in advance of indictment. The Majority’s new blanket restriction
eviscerates crime victims’ CVRA rights and makes the Epstein case a poster-child
for an entirely different justice system for crime victims of wealthy defendants.
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Rather than rewriting the CVRA to protect against so-called “enterprising”
victims and “innovative” judges, this Court should: (1) recognize that the CVRA’s
text already contains powerful limiting principles—“a reasonable right to confer”
only “with the attorney for the Government in the case,” granted only to defined
“crime victims” and without impairment of prosecutorial discretion; (2) enforce the
plain text of § 3771(a)(5) and (a)(8) in this case; (3) hold that the Office’s
prosecutor in the case had an obligation to confer with Epstein’s victims, given the
investigation was completed, the 53-page indictment was drafted, and the
prosecutor was already conducting pre-charge plea negotiations with Epstein’s
defense team; and (4) conclude that the Office violated the victims’ right to be
treated fairly by not disclosing the signed NPA before the State Court hearing and
by misrepresenting the case status to the victims.
H. Concurring Opinion
Now, my brief response to my colleague’s Concurring Opinion. His
Opinion submits that “the Executive Branch has exclusive power over
prosecutorial decisions” and that “authority obviously includes the
decision . . . whether to seek, or not seek, an indictment from the grand jury,” both
propositions with which I wholeheartedly agree. Conc. Op. at 54-55.
The Concurring Opinion contends, however, that “the model the dissent
creates”—requiring the U.S. Attorney’s Office to confer with a victim about a
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criminal matter prior to indictment—(1) “raises serious questions about whether,
by doing so, the judiciary would be violating the constitutional principle of
separation of powers,” and (2) “would clearly interfere with the Executive
Branch’s investigative and prosecutorial functions.” Id. at 54, 56. The Concurring
Opinion further states: “The notion that a district court could have any input on a
U.S. Attorney’s investigation and decision whether to bring a case to the grand jury
is entirely incompatible with the constitutional assignment to the Executive Branch
of exclusive power over prosecutorial decisions.” Id. at 57. The Opinion
concludes, therefore, that “the CVRA is best understood as not applying until
charges are commenced against a defendant” because “such an interpretation
avoids raising serious constitutional questions.” Id. at 59.
This Concurring Opinion is helpful because it highlights what is and what is
not the issue in this appeal. First, nothing in the CVRA as Congress wrote it
permits the district court to suggest to a U.S. Attorney any investigation or grand
jury steps that he must take. The CVRA requirement is only that the prosecutor
speak with the victim before making a final indictment decision. If a U.S.
Attorney, after reasonably conferring with the victim, decides not to take the case
to the grand jury, there will be no CVRA violation for the district court to remedy,
and thus no “meddling in the Executive Branch’s” exclusive powers under the
Constitution. See id. at 58.
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Happily enough, my plain reading of the statute in no way injects judicial
interference into a prosecutor’s decisions. In fact, not even the victims here claim
they have any authority over a prosecutor’s decision as to who to indict or not
indict, or for what crime. The victims’ bare-bones claim is only that the CVRA
required a prosecutor in the Office to confer with them before making those
weighty and final decisions. The fact that a prosecutor must confer with a victim
pre-charge does not mean the district court can exercise any control over the
prosecutor’s ultimate decision whether to indict.
Here, after drafting a 53-page indictment, the U.S. Attorney’s Office spent
not hours, but days conferring pre-charge with Epstein’s defense team. All the
CVRA does is obligate the prosecutor to give the victims a reasonable opportunity
to confer with them too. This is no impairment whatsoever on the prosecutor’s
authority to decide whether to indict or not. The CVRA even expressly mandates
that nothing in the Act “shall be construed to impair the prosecutorial discretion of
the Attorney General or any officer under his direction.” 18 U.S.C. § 3771(d)(6).
At oral argument in this appeal, counsel arguing for the respondent U.S.
Attorney’s Office agreed the constitutionality of the CVRA was not being
challenged. With all due respect, this constitutional separation-of-powers concern
is a red herring.
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Also, the canon of constitutional avoidance does not apply here because the
CVRA is plain and unambiguous. See United States v. Stevens, 559 U.S. 460,
481, 130 S. Ct. 1577, 1591-92 (2010) (providing that courts cannot “rely upon the
canon of construction that ‘ambiguous statutory language [should] be construed to
avoid serious constitutional doubts’” unless the statute is first ambiguous). As the
Supreme Court recently explained, “[s]potting a constitutional issue does not give
a court the authority to rewrite a statute as it pleases.” Jennings v. Rodriguez, 538
U.S. __, __ 138 S. Ct. 830, 843-44 (2018) (declining to apply the canon of
constitutional avoidance because the statutory language at issue was not
ambiguous). Instead, constitutional avoidance serves the “basic democratic
function of maintaining a set of statutes that reflect, rather than distort, the policy
choices that elected representatives have made.” Almendarez-Torres v. United
States, 523 U.S. 224, 237-38, 118 S. Ct. 1219, 1277-28 (1998). To that end, the
Supreme Court has cautioned that, “rewrit[ing] a law to conform it to constitutional
requirements . . . would constitute a serious invasion of the legislative domain.”
Stevens, 559 U.S. at 481, 130 S. Ct. at 1592.
Another observation. The Concurring Opinion insists the problems it
identifies would not exist post-charge because, in that case, the district court would
not be “imposing a condition upon his prosecutorial discretion.” Conc. Op. at 57-
58. But a government attorney makes all sorts of discretionary prosecutorial
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decisions following an indictment, chief among them whether to enter into a plea
agreement with the accused and potentially dismiss some or all of the charges.
Thus, to the extent the Concurring Opinion perceives separation-of-powers issues
with a district court ordering the government’s attorney merely to confer with
victims about prosecutorial discretionary decisions, it is not clear why the
Majority’s post-indictment restriction avoids those issues, given the victims can
complain about lack of conferral following an indictment too.
In any event, the Concurring Opinion usefully illustrates the importance of
the CVRA’s mandate in § 3771(d)(6)—nothing in the Act “shall be construed to
impair . . . prosecutorial discretion”—as yet another forceful limiting principle in
the CVRA text that alleviates any need for the Majority to transplant its very
substantive and temporal restriction on top of the plain text of § 3771(a)(5) and
(a)(8).
X. REMEDY
To remedy the Office’s proven CVRA violations, the victims proposed the
following: (1) an order scheduling a public hearing in the Southern District of
Florida in which the victims could participate and present victim-impact statements
to the District Court; (2) discovery of records regarding law-enforcement’s
investigation of the crimes against the victims; (3) discovery of records explicating
why the U.S. Attorney’s Office decided to grant Epstein federal immunity; (4) the
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Department of Justice’s designation of a representative to explain the Office’s
decision to resolve the Epstein case without any federal prosecution; (5) mandatory
CVRA training for criminal prosecutors in the Office; (6) a requirement that the
Office use its best efforts to provide victims (who request it) accurate and timely
notice of future case events regarding Epstein’s crimes; and (7) sanctions,
attorney’s fees, and restitution.
Yet before the District Court ruled on the remedies, Epstein died on August
10, 2019. On September 16, 2019, the District Court directed the Clerk to “close
the case and all pending motions are denied as moot.” Because the Office could no
longer prosecute the intervenor Epstein, the victims’ additional remedy requests—
such as rescission of the NPA as to him—were clearly moot. However, as the
victim petitioner argues before us, this civil case remains live as between the
victims and the Office with respect to the victims’ other requested remedies.
Accordingly, I would remand this case to the District Court to fashion a
remedy for the proven CVRA violations. Federal courts have had broad authority
to fashion equitable remedies after petitioners have proven a violation of statutory
provisions. Hardison v. Cohen, 375 F.3d 1262, 1266 (11th Cir. 2004); Nichols v.
Hopper, 173 F.3d 820, 824 (11th Cir. 1999); Ala. Hosp. Ass’n v. Beasley, 702 F.2d
955, 962 (11th Cir. 1983) (in light of statutory violation, we “accordingly remand
to the district court so that it may devise an appropriate equitable remedy”).
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Furthermore, it has long been an “indisputable rule, that where there is a
legal right, there is also a legal remedy.” Marbury v. Madison, 5 U.S. 137, 163
(1803) (quoting 3 William Blackstone, Commentaries *23). For that reason,
“[w]here legal rights have been invaded, and a federal statute provides for a
general right to sue for such invasion, federal courts may use any available remedy
to make good the wrong done.” Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60,
66, 68-69, 112 S. Ct. 1028, 1033-34 (1992) (rejecting government’s argument that
courts have abandoned the general rule that all appropriate relief is available to
vindicate a federal right); Bruschi v. Brown, 876 F.2d 1526, 1531 (11th Cir. 1989)
(taking “special note” the Supreme Court has made clear that “where federally
protected rights have been invaded, it has been the rule from the beginning that
courts will be alert to adjust their remedies so as to grant necessary relief”). 23
In closing the case, the District Court did mention that there had been an
Epstein-related hearing in New York on August 27, 2019, but that was held after
the remedy briefing here was completed. That hearing, scheduled on six days’
notice, involved potential prosecution in New York for crimes in New York—not
those in Florida. There is no evidence, and the District Court made no factual
23
In the remedy briefing, the Office did not appear to oppose the District Court’s ordering
a public hearing in Florida in this case, at which the victims could make victim impact
statements—an equitable remedy well within the District Court’s discretion. The District Court
could preside over the public hearing in a manner similar to the way district courts handle victim
impact statements in the context of a criminal sentencing.
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findings, about what transpired at the New York hearing. The Office’s claim on
appeal that the New York hearing was a sufficient remedy for its CVRA violations
wholly lacks merit. 24
Epstein’s death also heightened the need for the District Court to carefully
examine the victims’ remedy request for document disclosure. Early on, the
District Court denied certain document requests based on attorney-client privilege.
Subsequently, in the course of the litigation, the U.S. Attorney’s Office made
numerous representations about its deliberations, both internally and externally
with Epstein’s attorneys, including a detailed affidavit from a line prosecutor
purporting to describe those deliberations. Thereafter, the victims filed motions
claiming that the Office had waived, in whole or in part, the work-product
privilege given what the Office itself had now filed and how the Office sought to
defend its conduct in this case. The District Court never made a waiver ruling, or
any document-by-document findings, as to this remedy request. If anything, the
informational remedies sought by the victims have enhanced importance now.
Mysteries still exist about how Epstein and his co-conspirators escaped federal
24
In closing the case as moot in light of Epstein’s death, the District Court sua sponte
concluded the co-conspirators had become necessary and indispensable parties and their
participation as parties was now needed to afford the victims any relief. Prior to Epstein’s death,
no one contended that the victims needed to join the co-conspirators as indispensable parties to
this action. Because the District Court did not afford the victims notice and at least an
opportunity to consider whether to move to join the four named co-conspirators, the petitioner
victim asks for a remand on this remedy issue too.
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prosecution for multiple sex-trafficking crimes against over 30 minor girls in
Florida.25
XI. CONCLUSION
While the Majority laments how the national media fell short on the Jeffrey
Epstein story, this case is about how the U.S. prosecutors fell short on Epstein’s
evil crimes. See Maj. Op. at 6. Our criminal justice system should safeguard
children from sexual exploitation by criminal predators, not re-victimize them.
The Majority concludes that our Court is constrained to leave the victims
“emptyhanded,” and it is up to Congress to “amend the Act to make its intent
clear.” Id. at 19, 52. Not true. The empty result here is only because our Court
refuses to enforce a federal statute as Congress wrote it. The CVRA is not as
impotent as the Majority now rewrites it to be.
Given the undisputed facts that the U.S. Attorney’s Office completed its
investigation, drafted a 53-page indictment, and negotiated for days with Epstein’s
defense team, the Office egregiously violated federal law and the victims’ rights by
(1) not conferring one minute with them (or their counsel) before striking the final
NPA deal granting federal immunity to Epstein and his co-conspirators,
25
In closing the case as to the victims’ request for attorney’s fees, the District Court did
not cite the Hyde Amendment or any legal standard. See Hyde Amendment, Pub. L. No. 105-
119, § 617, 111 Stat. 2440, 2519 (1997) (reprinted in 18 U.S.C. § 3006A, historical and statutory
notes). Some of the requested documents would shed further light on that issue. This is only to
say these are potential remedies that are not moot, which the District Court should first explore
further.
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(2) intentionally and unfairly concealing the NPA from the victims, as well as how
the upcoming State Court plea hearing would directly affect them, and
(3) affirmatively misrepresenting the status of the case to the victims after the NPA
was executed. I would remand for the District Court to fashion a remedy.
For all of these reasons, I respectfully dissent from the Majority’s
(1) decision that the crime victims of Epstein and his co-conspirators had no
statutory rights whatsoever under the Crime Victims’ Rights Act, and (2) denial of
the victims’ petition in this case as a matter of law.
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