EFTA00073493 - Dataset 9

Extracted Text #

In re Wild, 955 F.3d 1196 (2020)
28 Fla. L. Weekly Fed. C 1020
for writ of mandamus, an argument that Crime
Victims' Rights Act (CVRA) did not apply if
955 Pad 1196
criminal proceedings had not been initiated,
United States Court of Appeals, Eleventh Circuit.
though government did not file a cross-appeal
IN RE: Petitioner. from district court's initial determination that
CVRA was applicable, which determination had
No. 19-13843 been made before district court dismissed alleged
victim's civil action against government because
(April 14, 2020) alleged perpetrator of child sexual abuse died
while the civil action was pending; proceeding
Synopsis
initiated by alleged victim was not an "appeal,"
Background: Alleged victim of child sexual abuse brought
and while CVRA directed Court of Appeals to
civil action against federal government, alleging that apply ordinary standards of appellate review in
government violated Crime Victims' Rights Act (CVRA) by
a mandamus proceeding brought by a crime
failing to confer with alleged victim before entering into
victim, CVRA did not direct Court of Appeals
non-prosecution agreement (NPA) with alleged perpetrator. to employ rules of procedure for typical appeals.
Alleged perpetrator intervened. The United States District
Court for the Southern District of Florida, No. 9:08-cv-80736- 18 U.S.C.A. § 3771(dX3).
ICAM, Kenneth A. Marra, Senior District Judge, 359
F.Supp.3d 1201, determined that government had violated
CVRA, but after alleged perpetrator's death, alleged victim's 121 Criminal Law iihe Civil liabilities to persons
requested remedies were denied and the action was dismissed, injured; reparation
411 F.Supp.3d 1321. Alleged victim petitioned for writ of Victim rights under federal Crime Victims'
mandamus. Rights Act (CVRA), including the right to confer
with government's lawyers and the right to
be treated fairly by them, do not attach until
criminal proceedings have been initiated against
(Holding:) The Court of Appeals, Newsom, Circuit Judge, a defendant, either by complaint, information,
held that as a matter of first impression, victim rights under
CVRA, including the right to confer with government's or indictment. P 1 18 U.S.C.A. § 3771(a)(5, 8),
lawyers and the right to be treated fairly by them, do not I it
t (c)(1), (d)(3).
attach until criminal proceedings have been initiated against
a defendant.
131 Criminal Law 4" Civil liabilities to persons
injured; reparation
Petition denied.
Rights under federal Crime Victims' Rights
Tjoflat, Circuit Judge, filed a concurring opinion. Act (CVRA), including right to confer with
federal government's lawyers and right to
Hull, Senior Circuit Judge, filed a dissenting opinion. be treated fairly by them, had not attached
when government entered into non-prosecution
Procedural Posture(s): Petition for Writ of Mandamus. agreement (NPA) with alleged perpetrator of
federal crimes relating to sexual abuse of minors
and sex trafficking, where government had not
West Hcadnotes (9) filed charges or othenvise commenced criminal
proceedings against alleged perpetrator, who
Criminal Law 6•• Civil liabilities to persons pursuant to the NPA pled guilty to two state
injured; reparation prostitution offenses. [1. I 18 U.S.C.A. § 3771(a)
Government did not waive, for consideration by (5, 8), (dX6).
Court of Appeals on alleged victim's petition
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EFTA00073493
In re Wild, 955 F.3d 1196 (2020)
28 Fla. L. Weekly Fed. C 1020
MI Statutes Construction based on multiple 181 Constitutional Law Nature and scope in
factors general
In construing a statute, the court begins with a The Executive Branch has exclusive authority
careful examination of the statutory text, looking and absolute discretion to decide whether to
to the particular statutory language at issue, as prosecute a federal criminal case, and this
well as the language and design of the statute as prosecutorial discretion flows not from a desire
a whole. to give carte blanche to law enforcement officials
but from recognition of the constitutional
principle of separation of powers.
Statutes 4- Statute as a Whole; Relation of
Parts to Whole and to One Another
Statutes 4- Design, structure, or scheme
Statutory construction is a holistic endeavor, and Attorneys and Law Firms
a statutory provision that may seem ambiguous
in isolation may be clarified by the remainder of *1198 Paul Cassell, University of Utah College of
the statutory scheme. Law, SALT LAKE CITY, UT, Bradley James Edwards,
EdwardsPottinger, LLC, FORT LAUDERDALE, FL, for
Petitioner.
161 Federal Civil Procedure 0. Motions in
Richard Christian Komando, Bradley Garrison & Komando,
General
ORANGE PARK, FL, for Amicus Curiae.
A "motion" is a request filed within the context
of an ongoing judicial proceeding, not a vehicle Nathan Parker Kitchens, Jill E. Steinberg, U.S. Attorney's
for launching a new and freestanding piece of Office, ATLANTA, GA, for Mandamus Respondent.
litigation.
On Petition for Writ of Mandamus to the United States
District Court for the Southern District of Florida, D.C.
Docket No. 9:08-cv-80736-KAM
171 Federal Courts 4- Mandamus
While a petition for a writ of mandamus is an Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.
original application to the Court of Appeals, the
writ is not an independent grant of appellate Opinion
jurisdiction but, rather, may go only in aid
NEWSOM, Circuit Judge:
of appellate jurisdiction that exists on some
other basis; thus, the minimum condition for This case, which is before us on a petition for writ of
mandamus relief is that the case be one that may mandamus, arises out of a civil suit filed under the Crime
lie within the prospective future jurisdiction of Victims' Rights Act of 2004. Petitioner Courtney Wild
the Court of Appeals, or that has in fact come is one of more than 30 women—girls, really—who were
within its jurisdiction in the past. victimized by notorious sex trafficker and child abuser Jeffrey
Epstein. In her petition, Ms. Wild alleges that when federal
prosecutors secretly negotiated and entered into a non-
181 Criminal Law ar- Preliminary examination; prosecution agreement with Epstein in 2007, they violated her
arraignment; appearance; bail rights under the CVRA—in particular, her rights to confer
The Sixth Amendment right to counsel does not with the government's lawyers and to be treated fairly by
attach until, at the earliest, a suspect's initial them.
appearance before a judicial officer. U.S. Const.
Amend. 6.
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In re Wild, 955 F.3d 1196 (2020)
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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 By May 2007, government lawyers had completed both an
left in the dark—and, so it seems, affirmatively misled—by 82-page prosecution memo and a 53-page draft indictment
government lawyers, we find ourselves constrained to deny alleging that Epstein had committed numerous federal sex
her petition. We hold that at least as matters currently stand crimes. In July, Epstein's lawyers sent a detailed letter to
—which is to say at least as the CVRA is currently written— prosecutors in an effort to convince them that, in fact, Epstein
rights under the Act do not attach until criminal proceedings hadn't committed any federal offenses. By September, the
have been initiated against a defendant, either by complaint, sides had exchanged multiple drafts of what would become
information, or indictment. Because the government never an infamous non-prosecution agreement ("NPA"). Pursuant
filed charges or otherwise commenced criminal proceedings to their eventual agreement, Epstein would plead guilty
against Epstein, the CVRA was never triggered. It's not a in Florida court to two state prostitution offenses, and, in
result we like, but it's the result we think the law requires. exchange, he and any coconspirators (at least four of whom
have since been identified) would receive immunity from
federal prosecution. I In June 2008, Epstein pleaded guilty to
I the state crimes as agreed and was sentenced to 18 months'
imprisonment, 12 months' home confinement, and lifetime
The facts underlying this case, as we understand them, are sex-offender status.
beyond scandalous—they tell a tale of national disgrace.
The district court found that "[f]rom the time the FBI began
Over the course of eight years, between 1999 and 2007, investigating Epstein until September 24, 2007"—when the
well-heeled and well-connected financier Jeffrey Epstein and government formally executed the NPA with Epstein—
multiple coconspirators sexually abused more than 30 minor federal prosecutors "never conferred with the victims about
girls, including our petitioner, in Palm Beach, Florida and a[n] NPA or told the victims that such agreement was under
elsewhere in the United States and abroad. Epstein paid his consideration." Doe I v. United States, 359 F. Supp. 3d 1201,
employees to find minor girls and deliver them to him—some 1208 (S.D. Fla. 2019). Worse, it appears that prosecutors
as young as 14. Once Epstein had the girls, he either sexually worked hand-in-hand with Epstein's lawyers—or at the very
abused them himself, gave them over to be abused by others, least acceded to their requests—to keep the NPA's existence
or both. Epstein, in turn, paid bounties to some of his victims and terms hidden from victims. The NPA itself provided
to recruit other girls into his ring. that "[t]he parties anticipate that this agreement will not be
made part of any public record" and, further, that "[i]f the
Following a tip in 2005, the Palm Beach Police Department United States receives a Freedom of Information Act request
and the FBI conducted a two-year investigation of Epstein's or any compulsory process commanding the disclosure of the
conduct. After developing substantial incriminating evidence, agreement, it will provide notice to Epstein before making
the FBI referred the matter for prosecution to the United that disclosure." Moreover, at approximately the same time
States Attorney's Office for the Southern District of Florida. that the sides concluded the NPA, they began negotiating
Beginning in January 2007, and over the course of the ensuing about what prosecutors could (and couldn't) tell victims about
eight *1199 months, Epstein's defense team engaged in the agreement. Seemingly in deference to Epstein's lawyers'
extensive negotiations with federal prosecutors in an effort repeated requests, the government held off—for nearly an
to avoid indictment. At the same time, prosecutors were entire year—on notifying Epstein's victims of the NPA's
corresponding with Epstein's known victims. As early as existence.
March 2007, they sent letters advising each one that "as a
victim and/or witness of a federal offense, you have a number And to be clear, the government's efforts seem to have
of rights." The letters, which the government distributed over graduated from passive nondisclosure to (or at least close
the course of about six months, went on to enumerate the to) active misrepresentation. In January 2008, for example,
eight CVRA rights then in force—including, as particularly approximately four months after finalizing and executing the
relevant here, "[t]he reasonable right to confer with the NPA, the government *1200 sent a letter to petitioner stating
attorney for the [Government] in the case" and "the right to be that Epstein's case was "currently under investigation,"
treated with fairness and with respect for the victim's dignity explaining that "[t]his can be a lengthy process," and
and privacy." "request[ing her] continued patience while [it] conduct[ed]
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a thorough investigation." The government sent an identical Over the course of the ensuing decade, the district court issued
letter to another victim in May 2008, some eight months after a number of significant rulings. For our purposes, three of the
inking the NPA. 2 court's orders are particularly important.
If secrecy was the goal, it appears to have been achieved Initially, in 2011 the district court "addresse[d] the threshold
—there is no indication that any of Epstein's victims were issue whether the CVRA attaches before the government
informed about the NPA or his state charges until after he brings formal charges against the defendant." Does, 817
pleaded guilty. On the day that Epstein entered his guilty plea F. Supp. 2d at 1341. The court held that "it does because
in June 2008, some (but by no means all) victims were notified the statutory language clearly contemplates pre-charge
that the federal investigation of Epstein had concluded. But proceedings." Id. As relevant here, *1201 the district court
it wasn't until July 2008—during the course of this litigation relied principally on two CVRA provisions in so holding.
—that petitioner learned of the NPA's existence, and until First, it pointed to 18 U.S.C. § 3771(c)(1), which the
August 2008 that she finally obtained a copy of the agreement. parties here have called the Act's "coverage" provision.
That subsection—of which much more later—states that
We are doubtlessly omitting many of the sad details of this "[o]fficers and employees of the Department of Justice and
shameful story. For our purposes, we needn't discuss the other departments and agencies of the United States engaged
particulars of Epstein's crimes, or the fact that the national in the detection, investigation, or prosecution of crime shall
media essentially ignored for nearly a decade the jailing of make their best efforts to see that crime victims are notified
a prominent financier for sex crimes against young girls. 3 of, and accorded, the rights described in subsection (a)."
Today, the public facts of the case are well known—Epstein The district court held that "[s]ubsection (c)(1 )'s requirement
was eventually indicted on federal sex-trafficking charges in that officials engaged in 'detection [or] investigation' afford
the Southern District of New York, and in August 2019, while victims the rights enumerated in subsection (a) surely
awaiting trial, he was found dead in his jail cell of an apparent contemplates pre-charge application of the CVRA." Does,
suicide. 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
11
"motion" either "in the district court in which a defendant
In July 2008, petitioner brought suit in the United States is being prosecuted or, if no prosecution is underway, in the
District Court for the Southern District of Florida, styling district court in the district in which the crime occurred."
her initial filing an "Emergency Victim's Petition for If, the district court reasoned, "the CVRA's rights may be
Enforcement of Crime Victim's Rights Act." As the district enforced before a prosecution is underway, then, to avoid a
court explained, "because no criminal case was pending" strained reading of the statute, those rights must attach before
at the time—no federal charges having been filed against a complaint or indictment formally charges the defendant with
Epstein or anyone else—petitioner "filed [her] petition as the crime." Does, 817 F. Supp. 2d at 1342. Finally, the district
a new matter ... which the Clerk of Court docketed as a court cited tt In re Dean, in which the Fifth Circuit had
civil action." Does v. United States, 817 F. Supp. 2d 1337, observed that "[a]t least in the posture of th[e] case" before
1341 n.4 (S.D. Fla. 2011). Petitioner alleged that she was a it—the court emphasized that it wasn't "speculat[ing] on the
"crime victim" within the meaning of the CVRA and that applicability to other situations"—the victim's right to confer
by keeping her in the dark about their dealings with Epstein,
with prosecutors applied pre-charge. f 1527 F.3d 391, 394
federal prosecutors had violated her rights under the CVRA
(5th Cir. 2008). Having "determined ... as a matter of law
—in particular, her rights "to confer with the attorney for the
[that] the CVRA can apply before formal charges are filed,"
Government in the case." 18 U.S.C. § 377I(aX5), and "to the district court here "defer[red]" ruling on the question
be treated with fairness and with respect for [her] dignity and whether federal prosecutors had violated the Act until the
privacy," t § 3771(aX8). 4 parties could conduct additional discovery. Does, 817 F. Supp.
2d at 1343.
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Following another eight years of litigation, the district court the coconspirators—as non-parties to the suit—couldn't be
issued a pair of rulings that prompted the mandamus petition estopped from asserting the NPA's validity at any future
now before us. In February 2019, the court found that the
prosecution. See id. Second, the court denied petitioner's
government had infringed petitioner's CVRA rights. See Doe
request for an injunction on the ground that she had failed
1, 359 R Supp. 3d at 1222. In particular, the court held
to show "continuing, present adverse effects" or any "real
that federal prosecutors violated the Act by "enter[ing] into
vt
a[n] NPA with Epstein without conferring with Petitioner[ ] and immediate" threat of future CVRA violations. [ Id.
during its negotiation and signing." Id. at 1219. "Had the at 1328. Third, the court rejected petitioner's requests for
Petitioner[ ] been informed about the Government's intention a victim-impact hearing and a meeting with Acosta on the
to forego federal prosecution of Epstein in deference to grounds that petitioner had already participated in an Epstein-
him pleading guilty to state charges," the district court related hearing in New York, that the Epstein prosecution
emphasized, she "could have conferred with the attorney for had concluded, and that the government had already agreed
the Government and provided input." Id. at 1218. The court to confer with victims concerning any ongoing investigation
concluded that it was precisely "this type of communication of Epstein's coconspirators. See id. at 1328-29. Fourth,
between prosecutors and victims that was intended by the the court denied petitioner's discovery requests for grand-
passage of the CVRA." Id. at 1291.
jury materials and investigative files. See c a id. at 1329-
Having found CVRA violations, the court directed the parties 40. Fifth, the court declined to order "educational remedies,"
—which by then included Epstein as an intervenor—to brief as the government had already agreed to implement CVRA
"the issue of what remedy, if any, should be applied." Id. at training for employees of the Southern District's United
1222. In response, petitioner proposed multiple remedies: (1) States Attorney's office. Id. at 1330. And finally, the
rescission of the NPA; (2) an injunction against further CVRA court rejected petitioner's request for sanctions, fees, and
violations; (3) an order scheduling a victim-impact hearing
restitution. See I id. at 1330-31.
and a meeting between victims and Alexander Acosta, the
former United States Attorney for the Southern District of
Seeking review of the district court's order refusing every
Florida; (4) discovery of certain grand-jury materials, records
remedy that she had sought, petitioner filed—as the CVRA
regarding prosecutors' decision to enter into the NPA, and
directs—a petition for writ of mandamus with this Court.
files concerning law-enforcement authorities' investigation
of Epstein; (5) mandatory CVRA training for employees See 18 U.S.C. § 3771(dX3) (stating that "[i]f the district
of the Southern District's United States Attorney's office; court denies the relief sought," a victim "may petition the
and (6) sanctions, *1202 attorneys' fees, and restitution. In court of appeals for a writ of mandamus"). The government
August 2019, while the court was considering the parties' filed a "brief in response" in which it not only opposed
briefing regarding remedies, Epstein died of an apparent petitioner's arguments on the merits, but also raised several
suicide; his death prompted another round of briefing on the threshold arguments concerning the scope of the CVRA
issue of mootness. and the circumstances in which rights under the Act are
judicially enforceable. In reply, petitioner contended (among
In September 2019, having considered the parties' briefing other things) that by failing to "cross appeal," the government
and the impact of Epstein's death, the district court dismissed had waived its arguments about the CVRA's applicability and
petitioner's suit, denying each of her requested remedies. enforceability. 5
See f Doe 1 v. United States, 411 R Supp. 3d 1321 (S.D.
sits
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 This case presents a host of issues, many of first impression.
Before jumping in, we begin with an introductory summary
subject to prosecution. See id. at 1326. Relatedly, the
of the CVRA.
court held that it lacked jurisdiction to consider petitioner's
claim regarding the validity of the NPA as it applied to
Epstein's coconspirators; any opinion regarding that issue,
the court concluded, would be merely advisory because III
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The CVRA is a compact statute, occupying but one section a crime victim, the court shall ensure that the crime victim
(and only two pages) of the United States Code. See 18 is afforded the rights described in subsection (a)." Id.
U.S.C. § 3771. The entire Act comprises just six subsections, § 3771(b)(1). (Subsection (b)(2) pertains to habeas corpus
the pertinent portions of which we will summarize briefly. proceedings, in which crime victims enjoy a more limited set
of rights; it isn't relevant here.)
*1203 The Act opens, in subsection (a), with a catalogue of
"rights" that federal law guarantees to "crime victims." (The Subsection (c), titled "Best efforts to accord rights," imposes
Act separately defines the term "crime victim" to mean "a obligations on non judicial actors. One of its constituent
person directly and proximately harmed as a result of the clauses—which we introduced earlier as the so-called
"coverage" provision—states as follows:
commission of a Federal offense." . Id. § 3771(e)(2)(A).)
The version of the CVRA in effect during the events in
question here—between 2006 and 2008—stated as follows:
Officers and employees of the
(a) Rights of crime victims.—A crime victim has the Department of Justice and other
following rights: departments and agencies of the
United States engaged in the detection,
(1) The right to be reasonably protected from the investigation, or prosecution of crime
accused. shall make their best efforts to see
that crime victims are notified of,
(2) The right to reasonable, accurate, and timely notice of
and accorded, the rights described in
any public court proceeding, or any parole proceeding,
subsection (a).
involving the crime or of any release or escape of the
accused.
(3) The right not to be excluded from any such public
18 U.S.C. § 3771(cX1).
court proceeding, unless the court, after receiving clear
and convincing evidence, determines that testimony by
Subsection (d) addresses "Enforcement and limitations."
the victim would be materially altered if the victim heard
Several of subsection (dX3)'s provisions are relevant
other testimony at that proceeding.
here. One—the "venue" provision—states that "[t]he rights
(4) The right to be reasonably heard at any public described in subsection (a) shall be asserted in the district
proceeding in the district court involving release, plea, court in which a defendant is being prosecuted for the crime
sentencing, or any parole proceeding. or, if no prosecution is underway, in the district court in which
the crime occurred." Another provides that "[i]f the district
(5) The reasonable right to confer with the attorney for court denies the relief sought, the movant may petition the
the Government in the case. court of appeals for a writ of mandamus"—and as amended
in 2015, and thus before petitioner sought review here, it goes
(6) The right to full and timely restitution as provided in on to clarify that in deciding any mandamus petition under the
law. CVRA, "the court of appeals shall apply ordinary standards
of appellate review." Subsection (dX6) is also relevant in two
(7) The right to proceedings free from unreasonable
respects. First, it states that "Nothing in this chapter shall
delay.
be construed to authorize a cause of action for damages."
(8) The right to be treated with fairness and with respect Second, and separately, it emphasizes that "[n]othing in
for the victim's dignity and privacy. this chapter shall be construed to impair the prosecutorial
discretion of the Attorney General or any officer under his
18 U.S.C. § 3771(a). direction."
Subsection (b), titled "Rights afforded," focuses on courts' *1204 Finally, subsection (f)—we've already introduced
responsibilities under the Act. It provides—as relevant here subsection (e), which defines the term "crime victim"—
—that "[i]n any court proceeding involving an offense against instructs the Attorney General to "promulgate regulations to
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enforce the rights of crime victims and to ensure compliance
proceedings begin. See In re Dean, 527 F.3d 391, 394
by responsible officials with the obligations" concerning
(5th Cir. 2008). The Sixth Circuit has deemed it "uncertain"
those victims. Id. § 3771(f)(1). whether CVRA protections apply "prior to [the] filing of ...
charges." In re Acker, 596 F.3d 370, 373 (6th Cir. 2010). The
With that primer, we proceed to address petitioner's case. district courts that have considered the question are divided.
Compare, e.g., 1' United States it Oakum, No. 3:08CR132,
2009 WL 790042, at *2 (E.D. Va. Mar. 24, 2009) (holding
IV that CVRA rights can attach prior to the commencement of
criminal proceedings), with, e.g., United States v. Daly, No.
Petitioner contends—and as already explained, the 3:11CR121 AWT, 2012 WL 315409, at *4 (D. Conn. Feb. 1,
undisputed facts show—that federal prosecutors in the 2012) (holding to the contrary).
Southern District of Florida negotiated "a secret non-
prosecution agreement" with Epstein, and that "[f]rom the As already explained, the district court here concluded that the
time that the FBI began investigating Epstein through the CVRA can apply before the initiation ofcriminal proceedings
consummation of the secret NPA, the Government never —"pre-charge," for short—and, accordingly, that petitioner
conferred with Epstein's victims about the NPA [or] even enjoyed the protections of the Act during the period that
told them that such an agreement was under consideration." preceded the execution of Epstein's NPA. In particular,
Petition for Writ of Mandamus at 4-5. By keeping her (and petitioner asserts in these proceedings that the government
others) in the dark concerning Epstein's NPA, petitioner violated her "reasonable right to confer" with the lead
asserts, the government violated the CVRA.
prosecutor, L 18 U.S.C. § 3771(aX5), and her right "to be
[II The unique circumstances of this case—and in particular, treated with fairness," id. § 3771(aX8)—neither of which,
the fact that Epstein was never charged in the Southern she says, is limited by its terms to the post-charge phase
District of Florida—tee up what the district court correctly of a criminal prosecution. 7 In support of her position that
called a "threshold" question: Does the CVRA apply in
CVRA rights can apply before criminal proceedings begin,
the period before criminal proceedings are initiated, either
by criminal complaint, information, or indictment? If it petitioner points (as did the district court) to II a § 3771(c)
does, then we must proceed to consider a cascade of (1)—which refers to federal-government agencies engaged
logically subsequent questions—among them, (1) whether in the "detection [and] investigation" of crime, in addition
the Act authorized the district court to rescind the NPA, to its "prosecution"—and to C a § 3771(d)(3) -which, in
both generally and, more specifically, as applied to Epstein's specifying the venue where a victim should seek relief under
alleged coconspirators; (2) whether petitioner was entitled the Act, refers to the eventuality that "no prosecution is
to discovery of certain grand-jury materials, DOJ records underway."
pertaining to prosecutors' decision to enter into the NPA, and
FBI files concerning the Epstein investigation; (3) whether The interpretation of the CVRA that petitioner advances, and
petitioner's participation in an Epstein-related victim-impact that the district court adopted, is not implausible; the CVRA
hearing in New York effectively moots her request for relief could be read to apply pre-charge. We conclude, though—
here; and (4) whether federal law entitles petitioner to recover reluctantly, especially given the mistreatment that petitioner
attorneys' fees. If, by contrast, the CVRA doesn't apply seems to have suffered at the hands of federal prosecutors—
before the commencement of criminal proceedings, then ow that the Act is neither best nor most naturally read that way.
inquiry is at an end. 6 For reasons that we will explain, we hold that (1) the CVRA's
text and structure, (2) the historical context in which the Act
*1205 [2] [3] Whether the CVRA applies prior to the was passed, and (3) the prosecutorial-discretion principles
initiation of criminal proceedings is not just a threshold that the Act was designed to safeguard—and which, we think,
question, but also a question of first impression in this Circuit. petitioner's interpretation would compromise—demonstrate
The Fifth Circuit has stated—albeit in dictum, without that its protections apply only after the initiation of criminal
meaningful explanation, and seemingly without the benefit of proceedings.If Congress believes that we have misinterpreted
adversarial testing—that the Act can apply before criminal the CVRA—or, for that matter, even if it believes that we have
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correctly interpreted the statute as currently written but that
the eight rights listed in § 3771(a)—all except for those
its scope should be expanded—then it should amend the Act
specified in subsections (5) and (8)—either expressly refer
to make its intent clear.
to or necessarily presuppose the existence of an ongoing
criminal proceeding. Subsections (a)(2), (3), (4), and (7) leave
no doubt whatsoever—all of them apply, by their plain terms,
A to "proceeding[s]," "public proceedings," or "public court
proceedings." Not surprisingly, there seems to be general
[4] In construing the CVRA, "we begin, as we must, with agreement that these "proceeding"-focused rights apply only
a careful examination of the statutory text," *1206 after the filing of a complaint or criminal charges. See Reply
Henson v. Santander Consumer USA Inc., — U.S. —, in Supp. of Pet. at 17; Paul G. Cassell, et aL, Crime Picini's'
137 S. Ct. 1718, 1721, 198 L.Ed.2d 177 (2017), looking Rights During Criminal Investigations? Applying the Crime
"to the particular statutory language at issue, as well as the Victims' Rights Act Before Criminal Charges Are Filed, 104
J. of Crim. L. and Criminology 59, 71 (2014).
language and design of the statute as a whole," K Mart
Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811,
Subsections (aX I ) and (6) aren't quite as clear, but they
100 L.Ed.2d 313 (1988). On balance, we conclude that the
too are best understood as specifying rights that attach
Act's terms—including the provisions on which petitioner
only after criminal proceedings have begun. Subsection
relies—demonstrate that its protections apply only after the
(I) guarantees a crime victim's right to protection from
commencement of criminal proceedings.
"the accused." r § 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
1
been commenced. See, e.g., IVebster's New International
Dictionary 17 (2d ed. 1944) (defining "accused" as "one
[51 We begin where petitioner does, with the catalogue of
"rights"—quoted in full above—that the CVRA guarantees charged with an offense; the defendant in a criminal case");
to "crime victims." (As already noted, the Act defines the see also"'Michigan v. Jackson, 475 U.S. 625, 632,106 S.Ct.
term "crime victim"—more on that later.) Petitioner relies 1404, 89 L.Ed.2d 631 (1986) ("[A]fler a formal accusation
has been made ... a person who had previously been just a
chiefly on § 3771(a)(5)'s guarantee of a "reasonable right
to confer with the attorney for the Government in the case," 'suspect' has become an 'accused' within the meaning of
the Sixth Amendment...:'). Subsection (aX6), *1207 which
and !' I § 3771(a)(8)'s guarantee of the "right to be treated guarantees a victim's right to "full and timely restitution,"
with fairness." She contends that by failing to inform her— likewise presupposes the initiation—and indeed perhaps the
and worse, affirmatively misleading her—about its ongoing maturation or even conclusion—of criminal proceedings.
negotiations with Epstein, the government violated both Black's, for instance, defines the term "restitution," in relevant
provisions. We will address subsections (a)(5) and (8) in part, to mean "[c]ompensation for loss; esp., full or partial
due course, but because "[s]tatutory construction ... is a compensation paid by a criminal to a victim, not awarded in
holistic endeavor," and because "[a] provision that may seem a civil trial for tort, but ordered as part of a criminal sentence
ambiguous in isolation is often clarified by the remainder of or as a condition of probation." Black's Law Dictionary 1507
the statutory scheme," It a UnitedSam. Ass'n ofTex. a Timbers (10th ed. 2014).
ofInwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct.
626, 98 L.Ed.2d 740 (1988), we first examine the balance of So, it seems to us, the rights enumerated in subsections (a)
(I), (2), (3), (4), (6), and (7) are properly understood as
[ § 3771(a). 8 applying only after the initiation of criminal proceedings. And
again, petitioner doesn't really contend otherwise. Instead,
In the main, anyway—and there isn't any real dispute about
she focuses on subsections (a)(5) and (8), which she says are
this—the CVRA's enumeration seems to focus on the post- framed broadly enough that they can be understood to apply
charge phase of a criminal prosecution, and in particular on
pre-charge. Let's take a closer look.
ensuring that crime victims have notice of(and an opportunity
to be heard in) pending criminal proceedings. Indeed, six of
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Subsection (a)(5) guarantees a crime victim the "reasonable subsection (aX5) was intended to apply pre-charge, during
right to confer with the attorney for the Government in the investigation phase, it makes little sense that Congress
the case." Petitioner and her lead counsel (in his academic would have tethered the conferral right to a single government
writings) emphasize that this provision refers to the attorney lawyer.
handling "the case" rather than "the charges," Reply in Supp.
of Pet. at 17, and they assert that the term "case" can "refer On balance, therefore—and particularly in the light of
both to a judicial case before a court and an investigative subsections (a)(I), (2), (3), (4), (6), and (7), all of which
case pursued by a law enforcement officer," Cassell et al., clearly apply only after the initiation of criminal proceedings
supra, at 72 (emphasis added).9 Although it's true, at least —we conclude that § 3771(a)(5)'s conferral right does
in the abstract, that the term "case" can mean either thing, not attach during the pre-charge, investigatory phase. Rather,
in legal parlance the judicial-case connotation is undoubtedly subsection (a)(5) is best understood as guaranteeing a crime
primary. See, e.g., Black's, supra, at 258-59 (defining "case" victim's right to consult with the lead prosecutor—i.e., "the
first as "[a] civil or criminal proceeding, action, suit or attorney for the Government"—in a pending prosecution
controversy at law or in equity" and only second as "[a]
—i.e., "the case." 19
criminal investigation"); IVebsters New International, supra,
at 415 (defining "case" as used in "[flaw" as "a suit or action
Petitioner also relies (albeit more obliquely) on subsection
in law or equity; a cause"). Moreover, and in any event,
(a)(8), which vaguely guarantees a crime victim's right "to
two contextual considerations convince us that, as used in
be treated with fairness and with respect for [his or her]
subsection (a)(5), the term "case" refers to an ongoingjudicial
dignity and privacy." It is certainly true that this fair-treatment
proceeding, not a law-enforcement investigation.
right has no inherent temporal limitation—on its face, it
could apply pre-charge, post-charge, or for that matter even
First, the Supreme Court has held that in the criminal
post-conviction. But well-established canons ofinterpretation
context, a "case" does not "encompass the entire criminal
require us to interpret subsection (a)(8)'s general right to
investigatory process," but rather "at the very least requires
fair treatment by reference to the subsections (and their
the initiation oflegal proceedings." P M()Chavez it Martinez,
constituent rights) that precede it. See, Johnson it
538 U.S. 760, 766, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003).
UnitedStates,559 U.S. 133, 139,130 S.Ct. 1265, 176 L.Ed.2d
Notably, in so holding, the Court drew on longstanding
1 (2010) ("Ultimately, context determines meaning ....");
tradition, citing its now nearly 150-year-old decision in
Blyew a United States for the proposition that the word P i Gutierrez v. Ada, 528 U.S. 250, 255, 120 S.Ct. 740,
"case" is synonymous with the word "cause" and "rnean[s] 145 L.Ed.2d 747 (2000) ("[W]ords and people are known
a proceeding in court, a suit, or action." 80 U.S. (13 Wall.) by their companions."). Because the rights enumerated in
581, 595, 20 L.Ed. 638 (1872). Second, and separately, subsections (a)(I)—(7) are best understood as applying only
subsection (a)(5) refers not just to "the case" in general, but after the institution of criminal proceedings, subsection (a)
more particularly to "the attorney for the Government in the (8)'s guarantee of "fairness" is, too. What the Supreme Court
case." While it is undoubtedly true that government lawyers said recently in applying noscitur a sociis—"the well-worn
may be involved in a criminal investigation pre-charge, Latin phrase that tells us that statutory words are often known
the provision's reference to a single, specific individual by the company they keep"—applies here as well: In ? t §
—"the attorney for the Government'—indicates that the 3771(a), "we find ... both the presence of company that
conferral right attaches only after proceedings have begun, suggests limitation and the absence of company that suggests
at which point that particular person will presumably
breadth." ti Lagos v. UnitedStates, —U.S. —, 138 S. Ct.
be more readily identifiable. Cf. I *1208 Rumsfeld
1684, 1688-89, 201 L.Ed.2d I (2018). 1
it Padilla, 542 U.S. 426, 434-35, 124 S.Ct. 2711, 159
L.Ed.2d 513 (2004) (holding that the "use of the definite
Taken as a whole. then, we conclude that the catalogue of
article ... indicates that there is generally only one" person
covered). By the same token, there will surely be many rights specified in § 3771(a) are best read as applying only
criminal investigations to which no lawyers have (yet) after the institution of criminal proceedings.
been assigned—let alone a single, identifiable "attorney
for the Government." Accordingly, if, as petitioner asserts,
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some action which is incidental to the main proceeding ....
Such action is invoked by an application usually less formal
2
than the pleadings, and is called a motion.' " (quoting John C.
We are fortified in that conclusion by the only two provisions Townes, Studies in American Elementary Law 621 (1911));
of the Act that speak directly to judicial enforcement of cf. Fed. R. Civ. P. 3, 7 (distinguishing between a "motion"
victims' statutory rights. and a "pleading"—the latter of which is defined to include a
"complaint," which is the prescribed vehicle for commencing
a freestanding action). 13
*1209 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 *1210 The facts that the CVRA (1) does not sanction
freestanding suits and (2) does prescribe mid-proceeding
court shall ensure that the crime victim is afforded the rights"
"motion[s]" combine—especially in conjunction with
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 subsection (a)'s enumeration—to indicate that the Act's
protections apply only after the initiation of criminal
(b)(1) reads as follows: "In any court proceeding involving
art offense against a crime victim, the court shall ensure that proceedings. 14
the crime victim is afforded the rights described in subsection
(a)." C II 18 U.S.C. § 3771(b)(1) (emphasis added). By its plain
terms, then, subsection (bX1) empowers courts to enforce 3
CVRA rights only during pending criminal proceedings—of
In fairness, petitioner is not without her own textual
which there were none here.
arguments. In urging us to hold that CVRA rights—or at least
some of them—apply even before the initiation of criminal
The second is § 3771(d), which specifies—and strictly proceedings, she relies principally on two subsections, which
circumscribes—the procedural mechanisms by which an the parties call the "coverage" and "venue" provisions,
alleged victim must assert and seek to enforce CVRA rights. respectively. Neither, we conclude, clearly demonstrates that
Two (related) points are worth making. As an initial matter, the rights specified in the Act attach during the pre-charge,
the Act clearly indicates that Congress did not intend to investigative phase.
authorize private individuals to initiate stand-alone suits or
actions, outside the confines of existing criminal proceedings, t
to enforce their statutory rights. Quite the contrary, in fact Petitioner first points to t § 3771(c)(1)—the "coverage"
provision—which, as already explained, states that "[o]fficers
—subsection (d)(6), titled "No Cause of Action," expressly
and employees of the Department of Justice and other
states that "[n]othing in this chapter shall be construed to
departments and agencies of the United States engaged in the
authorize a cause of action for damages." f § 3771(d) detection, investigation, or prosecution of crime shall make
(6)). Cf.? Alexander v. Sandoval, 532 U.S. 275, 286, 121 their best efforts to see that crime victims are notified of, and
S.Ct. 1511, 149 L.Ed.2d 517 (2001) (explaining that "[1]ike accorded, the rights described in subsection (a)." a 18 U.S.C.
substantive federal law itself, private rights of action to § 3771(c)(1). From the premise that "the CVRA applies to the
enforce federal law must be created by Congress"). 'detection [or] investigation' of crimes," petitioner reasons
to the conclusion, which the district court adopted, that "the
[6] [7] Instead—and this is point two—subsection (d)(3) Act's drafters 'surely contemplate[d] pre-charge application
specifies that a victim must assert his or her rights in a "motion of the CVRA.' " Reply in Supp. of Pet at 15 (quoting Does,
for relief' filed in district court and requires the court to 817 F. Supp. 2d at 1342). We disagree for two reasons.
consider and decide that "motion" promptly. 18 U.S.C. §
3771(dX3). As commonly understood, a "motion" is a request First, understood in proper context, it seems clear to us that
filed within the context of an ongoing judicial proceeding, subsection (c)(1) is a "to whom" provision, not a "when"
not a vehicle for launching a new and freestanding piece of provision. That is, it clarifies that CVRA obligations extend
beyond the officers and employees of "the Department of
litigation. 12 See, e.g., Black's, supra, at 1168 ("'Frequently,
Justice" to include, as well, the officers and employees of
in the progress of litigation, it is desired to have the court take
"other departments and agencies of the United States" that
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(like DOJ) are "engaged in the detection, investigation, or
prosecution of crime"—e.g., IRS, ICE, and TSA. Those Petitioner is on slightly stronger footing, we think, in
agencies' employees, like DOJ's, must "make their best
pointing to the CVRA's "venue" provision, t § 3771(d)
efforts to see that crime victims" are afforded CVRA
(3). In relevant part, that provision states that "[t]he rights
rights. Subsection (c)(1) doesn't expressly *1211 speak to
described in subsection (a) shall be asserted in the district
when CVRA rights attach, and it certainly doesn't clearly
court in which a defendant is being prosecuted for the crime
demonstrate that those rights attach before the initiation of
or, if no prosecution is underway, in the district court in which
criminal proceedings. Government employees (whether of
the crime occurred." Petitioner contends—and the district
DOJ or some other Dal-like agency) who are involved in
court agreed—that the "no prosecution is underway" clause
all three of the referenced phases are necessarily involved
must mean that CVRA rights "'may be enforced before a
post-charge. Subsection (cX1) simply makes clear that the Act
prosecution is underway' " and, accordingly, that " 'those
reaches beyond prosecutors (and DUI) to reach other actors
rights must attach before a complaint or indictment formally
in the criminaljustice system. IS charges the defendant with the crime.' "Reply in Supp. ofPet.
at 15 (quoting Does, 817 F. Supp. 2d at 1342). Petitioner's
Second, and more importantly, petitioner's reliance on I § interpretation of subsection (dX3) is not implausible—that
3771(c)(1) proves entirely too much. If, as petitioner thinks provision could be read to mean that CVRA rights attach
subsection (c)(1) shows, CVRA rights apply during the before the commencement of criminal proceedings. But it
"detection" and "investigation" of crime, then there is no isn't necessary, either, and in light of the remainder of the
meaningful basis—at least no meaningful textual basis— Act's text—and the practical implications of petitioner's
for limiting the Act's pre-charge application to the NPA construction, the details of which we explore below—we are
context. To the contrary, on petitioner's reading, subsection reluctant to adopt it, or at least to invest it with the significance
(c)(1) would—to cite just a few examples—require law- that petitioner does.
enforcement officers to "confer" with victims, subject only
[8] There are, we think, at least two alternative ways
to a squishy "reasonable[ness]" limitation, see § 3771(a)
(5), before conducting a raid, seeking a warrant, making of understanding f1 § 3771(dX3). First, and perhaps most
an arrest, interviewing a witness, convening a lineup, obviously, it could be read to apply to the period of
or conducting an interrogation. Absent a much clearer time between the initiation of criminal proceedings—which
indication, we cannot assume that Congress intended such may occur as early as the filing of a criminal complaint
a jarring result. Presumably sensing the slipperiness of their under Federal Rule of Criminal Procedure 3—and the
position, petitioner and her counsel have said that courts levying of formal charges in an indictment."' The word
can simply draw the line farther downstream—when, for "prosecution"—on which subsection (d)(3) pivots—is a legal
instance, as counsel put it at oral argument, an investigation term of art; in relevant part, it refers to "[t]he institution and
has "matured" to the point where (as here) prosecutors "are continuance of a criminal suit [and] the process of exhibiting
negotiating with defense attorneys and signing agreements." formal charges against an offender before a legal tribunal,
Oral Arg. at 8:30, 9:10-9:17. "At that point at least," counsel and pursuing them to final judgment on behalf of the state or
said, "a conferral right exists" under subsection (a)(5). Id. at government, as by indictment or information." Webster:r New
9:10-9:17. That is a line, to be sure—and a line that happens International, supra, at 1987. Moreover, the law is clear, at
to capture this case—but it has no footing whatsoever in the least for Sixth Amendment right-to-counsel purposes, that a
"detection [or] investigation" language to which petitioner "prosecution" does not begin with the criminal complaint's
points in support ofher position. 16 As tempting as it might be filing. See P. United States v. Alvarado, 440 F.3d 191,
to do so—especially on the facts before us here—we cannot 199-200 (4th Cir. 2006) ("The filing of a federal criminal
re-write, or arbitrarily circumscribe, the Act's text simply to complaint does not commence a formal prosecution."); see
make it fit petitioner's theory. 17
also, e.g., ‘I United States v. States, 652 F.3d 734, 741-
*1212 For these reasons, we cannot accept petitioner's 42 (7th Cir. 2011) (same); P a United States v. Boskic, 545
F.3d 69, 82-84 (1st Cir. 2008) (same). Rather, the Sixth
contention that § 3771(c)(1) demonstrates that the CVRA
Amendment right does not attach—because a "prosecution"
applies before the initiation of criminal proceedings.
does not begin—until, at the earliest, a suspect's "initial
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As we've explained, petitioner understandably wants to craft
appearance before a judicial officer." a Rothgery v. Gillespie
a rule that will cover this case without opening the floodgates
County, Tex., 554 U.S. 191, 199,128 S.Ct. 2578, 171 L.Ed.2d
to those possibilities—seemingly by reference to some sort of
366 (2008). All of which is to say that even if petitioner
once-the-investigation-has-matured criterion. That criterion,
and the district court were correct that the "no prosecution
though, has no basis in the CVRA's text. Petitioner's reading
is undenvay" clause meant that CVRA rights apply "before"
of subsection (d)(3)'s "no prosecution is undenvay" clause
formal charges are filed, they may yet be incorrect that those
—like her reading of subsection (cX1)'s "detection [or]
rights should be understood to attach during a pre-complaint
investigation" clause—provides no logical stopping point.
investigation. Subsection (d)(3) can be read sensibly enough
to apply (and to *1213 give victims the right, for example, iii
to "confer" with prosecutors, ' § 377I(a)(5)) between the
filing of the criminal complaint and the suspect's initial For all these reasons, we conclude that the CVRA's text
appearance before a judge—and thus, for instance, to express is best read as applying only after the commencement of
their views to prosecutors about whether the defendant should criminal proceedings, whether by complaint, information, or
be granted pretrial release. See? I Fed. R. Crim. P. 5(d)( I )(C) indictment. 20
(noting that pretrial-release decisions are made at the "initial
appearance").
*1214 B
Alternatively, subsection (d)(3) could be interpreted to refer
to the period after a "prosecution" has run its course and The historical context in which the CVRA was enacted
resulted in a final judgment of conviction. Petitioner and confirms what the Act's text indicates—namely, that it was
the district court read the "no prosecution is underway" not meant to apply prior to the institution of criminal
clause to say, in effect, "no prosecution is [yet] underway"— proceedings. Congress enacted the CVRA against the
thereby necessarily pointing to the period "before" (their backdrop of another victims'-rights statute, the Victims'
word) the prosecution's commencement. But subsection (d) Rights and Restitution Act of 1990. The CVRA repealed
(3)'s is temporally agnostic—on its face, it could just as and replaced some parts of the VRRA, but left others intact.
easily mean that "no prosecution is [still] underway." CI Notably, the "Services to victims" section of the VRRA,
Underway, Oxford English Dictionary, https://oed.com/view/ which the CVRA preserved, includes provisions that, by
Entry/212225?rskey=h1o1T7 & result= I /kid (last visited their express terms, plainly apply before criminal proceedings
April 13, 2020) (defining "underway" as it pertains to "a
begin. 21
process, project, [or] activity" to mean "set in progress; in the
course of happening or being carried out"). No one doubts,
That section opens with a phrase that the CVRA repeats—
for instance, that a victim could file a post-judgment motion
noting that it applies to government agencies "engaged in the
alleging that the government violated her rights during the
detection, investigation, or prosecution of crime." 34 U.S.C.
course of the prosecution and asking the court, say, to "re-
§ 20141(a). Unlike the CVRA, though, the VRRA directs
open a plea or sentence." C u 18 U.S.C. § 3771(d)(5). 19 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
Moreover, petitioner's broad reading of § 377I(d)(3)
case." Id. The VRRA goes on state that "[a]t the earliest
suffers from the same slippery-slope problems that plague
opportunity after the detection of a crime at which it may be
her reading of , § 3771(c)(1). To say, as the petitioner done without interfering with an investigation, a responsible
does—and as the district court did—that subsection (d)(3) official shall ... identify the victim or victims of a crime
indicates that CVRA "rights must attach before a complaint [and] inform the victims of their right to receive, on request,
or indictment formally charges the defendant with the crime,' [certain enumerated] services." Id. § 20141(b). By referring
" Reply in Supp. of Pet. at 15 (quoting Does, 817 F. Supp. to the period immediately following "the detection of a
2d at 1342), tells us nothing about how long "before." crime" and to the existence of an ongoing "investigation"—
Again, must prosecutors consult with victims before law- with which the responsible official should be careful not to
enforcement officers conduct a raid, seek a warrant, or "interfer[e]"—the VRRA clearly extends victim-notice rights
conduct an interrogation? That seems exceedingly unlikely. into the pre-charge phase.
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United States, — U.S. —, 138 S. Ct. 1684, 201 L.Ed.2d
The VRRA is similarly explicit when describing the sorts of 1 (2018), which concerned another federal victims'-rights
"services" to which victims are entitled. Following subsection statute, the Mandatory Victims Restitution Act. In particular,
(a)'s direction, subsection (c) marches—methodically, and the Court there addressed a portion of that statute requiring
roughly chronologically—through the various "stage[s]" reimbursement of expenses that a crime victim "incurred
of a crime's commission, detection, investigation, and during participation in the investigation or prosecution of the
prosecution. Subsection (c)(1) states, for instance, that "the offense or attendance at proceedings related to the offense."
responsible official shall"—presumably immediately in the
? 1 18 U.S.C. § 3663A(b)(4). The question before the Court
aftermath of a crime's commission, and thus by definition
was whether that provision should be interpreted narrowly,
before any charges are filed—inform the victim where she
to require reimbursement only of those expenses that a
can "receive emergency medical and social services." Id.
victim incurred during a government "investigation" and
§ 20141(c)(1)(A). Subsection (c)(2) then provides that the
criminal proceedings," or more broadly, to include expenses
responsible official shall ensure that the victim receives
incurred during any "investigation" and any case-related
"reasonable protection from a suspected offender"—notably,
not "the accused," *1215 as in the CVRA, but "a suspected "proceedings."? Lagos, 138 S. Ct. at 1688.
offender." Id. § 20141(c)(2). Continuing, subsection (c)
(3) states that the official shall provide the victim "the The Court unanimously adopted the narrower reading. In
earliest possible notice" of, among other things, and under doing so, the Court readily acknowledged that there were
appropriate circumstances, "the status of the investigation of "contrary arguments ... favoring a broad interpretation"—
the crime" and "the arrest of the suspected offender—both in particular, that the more limited reading "will sometimes
of which, obviously, refer to pre-charge events. Id. § 20141(c) leave a victim without a restitution remedy sufficient to
(3)(A)—(B). It is not until subsection (cX3)(C)—which refers cover some offense-related expenses and thereby contravene
to "the filing of charges against a suspected offender—that the Act's *1216 "broad purpose."? Id. at 1689. The Court
the VRRA's focus conspicuously shifts to rights pertaining to further conceded that while it thought the statute's "individual
"charges," "trial[s]?"hearing[s]," and "proceedings." See id. words suggest[ed]" a more "limited interpretation," they
§ 20141(cX3)(C)—(cX5).
"d[id] not demand" it. ? 11d. at 1688. Even so, the Court
The VRRA's provisions—about which Congress indisputably held that, understood in context—for instance, the fact
knew when it framed and enacted the CVRA—demonstrate that the terms "investigation" and "proceedings" were
that when Congress wants to extend victims-rights both linked to the word "prosecution"—the more limited
protections pre-charge, it knows how to do so, and does reading was preferable from a textual and structural
so expressly. The fact that the CVRA contains no similar standpoint. The Court also emphasized that "Congress ha[d]
language counts heavily against petitioner's interpretation enacted many different restitution statutes with differing
under what we have called an entire "family" of interpretive language, governing different circumstances," and that while
canons. See Fmemanville Iffater Sys., Inc. v. Poach Band of some of them contained provisions specifically requiring
Creek Indians, 563 F.3d 1205, 1209 (11th Cir. 2009) (citing "full" restitution, the Mandatory Victims Restitution Act
the interrelated principles, for instance, that "where Congress "contain[ed] no such language?? a Id. at 1689-90.
knows how to say something but chooses not to, its silence is
controlling," and that "when Congress uses different language The Court concluded its interpretive analysis this way:
in similar sections, it intends different meanings" (citations "[G]iven th[e] differences between the Mandatory Victims
omitted)). 22 Restitution Act and other restitution statutes, we conclude
that the considerations we have mentioned, particularly those
sits based on a reading of the statute as a whole, tip the balance in
favor of our more limited interpretation? ? a Id. at 1690. Just
Together, these textual and contextual considerations lead us so here. In light of CVRA's text's overarching focus on the
to conclude that, on balance, the CVRA is best interpreted to period following the initiation of criminal proceedings, and
apply only after the commencement of criminal proceedings. the obvious differences between the CVRA and the VRRA—
Although not precisely on point, we find resonance in much which by its terms plainly reaches into the pre-charge phase
of what the Supreme Court recently said in ? 'Lagos v.
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—we too conclude that the interpretive balance tips in favor and proximately harmed as a result of the commission of a
of a more limited reading.
Federal offense." Id. § 377I(eX2).
Accordingly, any movant asserting rights under the CVRA
C must, at the very outset, demonstrate to the district court
that he or she is a "crime victim" entitled to statutory
There is a final consideration here, and it is to ow minds protection. And, given the statutory definition's terms, in
a weighty one. The CVRA's final substantive provision— order to determine whether the movant has made the requisite
which Congress slotted in just before statutory definitions showing, the court must decide whether a "Federal offense"
and a closing directive to the Attorney General to promulgate has occurred. When a prosecutor has already commenced
implementing regulations—states that "[n]othing in this criminal proceedings against an identifiable individual for a
chapter [i.e., the entirety of the Act] shall be construed specific crime, he or she has made at least a presumptive
to impair the prosecutorial discretion of the Attorney determination that the individual has in fact committed
General or any officer under his direction." f I 18 U.S.C. a "Federal offense." So, as applied post-charge—in the
§ 3771(d)(6). For reasons we will explain, we conclude context of ongoing criminal proceedings—the "crime victim"
that petitioner's "constru[ction]" of the Act—as applying determination is straightforward: An individual who has been
before the initiation of criminal proceedings—would indeed "directly and proximately harmed" as a result of the conduct
"impair ... prosecutorial discretion." charged by the government is entitled to CVRA protection.
[9] Broadly defined, the term "prosecutorial discretion" Not so before the commencement ofcriminal proceedings. In
refers to the soup-to-nuts entirety of"[a] prosecutor's power that circumstance, if a movant were to assert CVRA rights as
to choose from the options available in a criminal case, a "crime victim," the court would first have to determine—but
such as filing charges, prosecuting, not prosecuting, plea- this time without any initial determination by the government
bargaining, and recommending a sentence to the court." in the form of a charging decision and, indeed, presumably
Black's, supra, at 565. The core of prosecutorial discretion, while the government's investigation is ongoing—whether
though—its essence—is the decision whether or not to charge or not a "Federal offense" has been committed. That
an individual with a criminal offense in the first place. The scenario—which is a necessary consequence of petitioner's
Supreme Court has repeatedly reaffirmed the principle— interpretation—presents at least three intractable problems.
which dates back centuries—that "the Executive Branch has
exclusive authority and absolute discretion to decide whether First, and most obviously, petitioner's reading puts the cart
before the horse: When else, if ever, is a court called on
to prosecute a case." 1/ United States v. Nixon, 418 U.S.
to decide whether an "offense" (Le., a crime) has occurred
683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (citing
—as opposed to a moral wrong more generally—before
Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 the government has even decided to press charges? The
(1869)). 23 answer, so far as we are aware, is never. Second, how, in
the absence of a charging decision, would the court even
*1217 We believe that petitioner's interpretation of the go about ascertaining whether an "offense" had occurred?
CVRA risks "impair[ing] ... prosecutorial discretion" in at What would that proceeding look like? A mini- (or perhaps
least two fundamental ways. As an initial matter, consider a not-so-mini-) trial in which the court finds facts and
that the veryfirst determination that a court must make when makes legal determinations regarding an "offense" yet to
asked to enforce the CVRA is whether the party seeking be named? Finally, and in any event, it seems obvious to
the Act's benefit is a "crime victim." The reason is because us that simply by conducting such a proceeding and by
the CVRA's opening provision makes clear that the Act's concluding (up front) that an "offense" has—or has not—
protections—the rights enumerated therein, already discussed occurred, the court would not only exert enormous pressure
at some length—are available only to "crime victim[s]." on the government's charging decisions, but also likely
impair the government's ongoing investigation. *1218 The
18 U.S.C. § 377I(a) ("A crime victim has the following "impair[ment]" of prosecutorial discretion, we think, would
rights ...."). Notably for ow purposes, the CVRA statutorily be palpable.
defines the term "crime victim" to mean "a person directly
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Separately, even if the threshold "crime victim" barrier jurisdiction—its "house," to speak—and thus necessarily
could be overcome, the enforcement of CVRA rights in the cedes some of her control of the course and management of
pre-charge phase would risk unduly impairing prosecutorial the case. From that point forward, the court will "assume
discretion. Consider, as a general matter, how CVRA a more active role in administering adjudication of a
enforcement occurs. If, for instance, an individual claiming defendant's guilt and determining the appropriate sentence."
to be a covered victim believes—as did petitioner here— United States v. Fokker Servs. B. V, 818 F.3d 733, 737 (D.C.
that the government hasn't "confer[red]" with her in the Cir. 2016). Interpreting the CVRA to apply post-charge—as
its terms plainly permit—thus squares with the background
manner prescribed by § 3771(a)(5) or "treated [her] with
expectation of judicial involvement. Interpreting the Act to
fairness" as required by § 377I(aX8), then she will—as apply pre-charge, by contrast, contravenes the background
did petitioner here—ask a district court to "order" prosecutors
expectation of executive exclusivity. 24
to confer and to treat her "fair[ly]." See Emergency Pet. at 2.
Even in the post-charge phase, those are pretty extraordinary
*1219
requests. It is no small thing to ask a judge to issue an sss
injunction ordering the government's lawyers (presumably
on pain of contempt) to conduct their prosecution of a
For reasons we have explained, we conclude that the CVRA is
particular matter in a particular manner. But at least after the
best understood—in accordance with its terms and the context
commencement of criminal proceedings—and accordingly
in which it was enacted—to apply only after the initiation
after the government has submitted itself and its case to
of criminal proceedings. To the extent the Act's language
the district court's jurisdiction and supervision—the CVRA
and structure leave any doubt about its proper scope, we
explicitly authorizes the court's intervention. Congress made
must assume that Congress "acted against the backdrop of
a clear determination that the intrusion was necessary and
long-settled understandings about the independence of the
appropriate.
Executive with regard to charging decisions." Fokker Servs.,
818 F.3d at 738. Had Congress intended to upend (rather
Before the commencement of criminal proceedings,
than reinforce) those "long-settled understandings," we can
though, the intrusion would be significantly greater,
only assume it would have expressed itself more clearly. See,
both quantitatively and qualitatively. As a quantitative
matter, petitioner's interpretation—pursuant to which the e.g., i. Puerto Rico v. Franklin California Tax-Free Trust,
CVRA's protections would extend into the "detection" and — U.S. —, 136 S. Ct. 1938, 1947, 195 L.Ed.2d 298
"investigation" phases—risks greatly multiplying the sheer (2016) ("Congress `does not, one might say, hide elephants
number of opportunities for judicial intervention in law- in mouseholes.' " (quoting /I Whitman v. American Trucking
enforcement and prosecutorial affairs. Freed from any line Assns., Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d
limiting the Act's applicability to the post-charge phases of a
1 (2001))). 25
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 *1220 V
of an already-extraordinary statute.
For the foregoing reasons, we hold that the CVRA does not
apply before the commencement of criminal proceedings—
The intrusion occasioned by a pre-charge interpretation
of the CVRA would also be qualitatively different. The and thus, on the facts of this case, does not provide the
commencement of criminal proceedings marks a sensible petitioner here any judicially enforceable rights.
boundary on the prosecutorial-discretion spectrum. As
already explained, before charges are filed—when the Having so held, two final words.
government is still in the process of investigating and
First, regarding the dissent: Although we have endeavored
deciding "whether to prosecute"—its authority and discretion
along the way to meet a few of the dissent's specific critiques,
are understood to "exclusive" and "absolute." k Nixon, 418 we must offer here two more global responses. As an initial
U.S. at 693, 94 S.Ct. 3090. By contrast, once the charging matter, with respect to the dissent's charge (Dissenting Op.
decision is made, the prosecutor steps into the court's at 1226) that we have "dresse[d] up" what it calls a "flawed
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statutory analysis" with "rhetorical flourish"—well, readers without ever notifying or conferring with victims, provided
can judge for themselves whose rhetoric is in fact more florid. that they do so before instituting criminal proceedings. We
See, e.g., id. at 1224 ("So how does the Majority bail the U.S. can only hope that in light ofthe protections provided by other
Attorney's Office out ofits egregious CVRA violations ... ?"); statutes—and even more so in the wake of the public outcry
id. at 1224 ("So how in the holy name of plain text ... ?"); id. over federal prosecutors' handling of the Epstein case—they
("The Majority hacks away at the plain text with four tools."); will not do so.
id. ("The Majority cherry picks the meaning of `case' ...."); id.
at 1239 ("Nonsense."); id. at 1240 ("As its third tool to axe the The question before us, though, isn't whether prosecutors
plain text ...."); id. ("Do not fall for this."); id. 1241 (accusing should have consulted with petitioner (and other victims)
us ofruling "by judicial fiat"); id. at 1245-46 (twice accusing before negotiating and executing Epstein's NPA. It seems
us of fearing crime victims more than "wealthy defendants"). obvious to us—and, indeed, the government has expressly
conceded—that they should have. Our sole charge is to
More substantively, it remains unclear to us exactly how the determine, on the facts before us, whether the CVRA
dissent thinks the CVRA should be interpreted and applied. obligated prosecutors to do so. We simply cannot say that it
It's obvious that our dissenting colleague doesn't particularly did.
like ow reading—namely, that CVRA rights don't attach
before the initiation of criminal proceedings. (Which is fine PETITION DENIED.
—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 TJOFLAT, Circuit Judge, concurring:
elaboration—that the Act should be construed to apply "pre- I concur without reservation in Judge Newsom's opinion for
charge."See Dissenting Op. at 1226-27, 1237,1239-40 n.19, the Court. I write separately because the model the dissent
1240, 1243, 1244, 1245-46, 1246-47. That reading (while creates, in which a victim is permitted to sue the United States
we think wrong) at least has the benefit of coherence and Attorney I for refusing to confer about a criminal matter
clarity. But the dissent (we think wisely) doesn't seem eager prior to indictment, would, in operation, result in Judicial
to defend so sweeping an interpretation, presumably because Branch interference with the Executive Branch's function of
it has no logical stopping point. Instead, the dissent hints— investigating and prosecuting federal crimes. Such a model
although again, without any real explanation—that CVRA raises serious questions about whether, by doing so, the
rights should be understood to apply only (or at least?) judiciary would be violating the constitutional principle of
"once the criminal case has matured to plea negotiations."Id. separation of powers. 2
at 1240.26 Where, though—or as ow dissenting colleague
would say, where "in the holy name of plain text"—does that There can be no doubt that the Executive Branch has
limiting criterion come from? As best we can tell, it is devised
exclusive power over prosecutorial decisions. See?' United
specifically to capture this case without risking a landslide.
States Nhon, 418 U.S. 683, 693, 94 S. Ct. 3090, 3100,
For reasons we have explained in detail, we believe that the
41 L.Ed.2d 1039 (1974) ("[T]he Executive Branch has
CVRA is most properly (if imperfectly) read to apply only
exclusive authority and absolute discretion to decide whether
after the commencement of criminal proceedings. One thing
of which we are certain: That interpretation *1221 is far to prosecute a case ...."); Confiscation Cases, 74 U.S. 7
superior to the dissent's good-for-this-train-only, once-the- Wall. 454, 457, 19 L.Ed. 196 (1868) ("Public prosecutions,
investigation-has-matured reading—which, so far as we can until they come before the court to which they are returnable,
tell, has no meaningful footing in the Act's text, history, or are within the exclusive direction of the district attorney ....");
structure. P IIHeckler v Chaney, 470 U.S. 821, 832, 105 S. Ct. 1649,
1656, 84 L.Ed.2d 714 (1985) ("Mhe decision ofa prosecutor
Second, and far more importantly, regarding the in the Executive Branch not to indict ... has long been
consequences of our interpretation: It isn't lost on us that regarded as [within] the special province of the Executive
our decision leaves petitioner and others like her largely Branch, inasmuch as it is the Executive who is charged by
emptyhanded, and we sincerely regret that. Under ow the Constitution to 'take Care that the Laws be faithfully
reading, the CVRA will not prevent federal prosecutors from executed.' " (quoting U.S. Const., Art. II, § 3)). This
negotiating "secret" plea and non-prosecution agreements, Executive Branch authority obviously includes the decision to
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investigate suspected criminal activity and whether to seek, or temporal limitations on the CVRA rights to confer with, and
not seek, an indictment from the grand jury. These pre-charge to be treated fairly by, the U.S. Attorney. 5
decisions are the focus of this case.
In contrast, under Judge Newsom's interpretation, this
The dissent interprets the CVRA as authorizing a victim to problem does not exist because the CVRA only gives victim's
bring a U.S. Attorney *1222 to court for refusing to confer post-charge rights. And, post-charge, the district court is not
with her about a matter under criminal investigation. To dragging the U.S. Attorney into court against his will and
illustrate what would likely occur if we permitted the victim imposing a condition upon his prosecutorial discretion—the
to do that—i.e., to envision how the dissent's interpretation attorney is voluntarily before the court, and it is appropriate
of the CVRA would operate in practice—consider a simple for the court, in its active role in the criminal proceedings,
case of mail fraud. to examine the attorney's failure to comply with his CVRA
obligations. In such circumstances, there is no concern about
Jane Doe is the victim of a fraudulent scheme. She finds the separation of powers because the court is not meddling
out that the U.S. Attorney's Office is investigating the in the Executive Branch's decisions until executive officers
scheme and wants to discuss it with the attorney handling have chosen to present themselves to the court.
the investigation. The attorney refuses her request, so she
sues him. Applying the dissent's interpretation, the district In sum, the dissent's interpretation creates serious
court finds that the attorney violated the CVRA by failing constitutional concerns that Judge Newsom's interpretation
to confer with the victim. The court issues an injunction does not. And it is "settled policy" that, when confronted with
requiring the attorney to confer with Doe and to treat her two potential interpretations of a statute, we should avoid
fairly. 3 Even if the court could craft such an injunction to the interpretation that "engenders constitutional issues if a
comply with Rule 65 of the Federal Rules of Civil Procedure, reasonable alternative interpretation poses no constitutional
which I doubt, the court would then be continually involved
question." See C a Gomez v. United States, 490 U.S. 858, 864,
in the criminal investigation from the moment it issued the
109 S. Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). Therefore,
injunction. At any moment during the inevitable twists and
Judge Newsom's interpretation should be adopted. This
turns of a pm-indictment criminal investigation, the victim
conclusion is bolstered by the language of the statute, itself,
could allege that the attorney had violated the injunction,
which explicitly states that none of the CVRA's provisions
and the attorney would be back in front of the district court
should be read to diminish prosecutorial discretion: "Nothing
to show cause why he should not be held in contempt. 4 in this chapter shall be construed to impair the prosecutorial
But the event most likely to trigger such a hearing is the discretion of the Attorney General or any officer under his
attorney's decision not to take the case to the grand jury,
direction." C m 18 U.S.C. § 3771(d)(6). Clearly, the author
and that decision is completely within the Executive Branch's
of the statute—Congress—recognized the need to avoid any
prosecutorial discretion. Therefore, applying the dissent's
construction that results in the problem that the dissent's
interpretation of the CVRA would clearly interfere with the
Executive Branch's investigative and prosecutorial functions. approach creates. 6
Having explored the consequences of the dissent's For all of the reasons set forth in Judge Newsom's opinion,
interpretation of the CVRA, it is clear that such an and because such an interpretation avoids raising serious
interpretation cannot be accepted. The notion that a district constitutional questions, the CVRA is best understood as not
court could have any input on a U.S. Attorney's investigation applying until charges are commenced against a defendant.
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 HULL, Circuit Judge, dissenting:
decisions. Additionally, it is hard to imagine a bigger intrusion This appeal presents legal questions of first impression in this
on executive autonomy than the possibility that a U.S. Circuit regarding the Crime Victims' Rights Act ("CVRA"),
Attorney will be held in contempt for violating an injunction if
her investigation is not handled as the victim and district court *1224 18 U.S.C. § 3771, which grants a statutory "bill
see fit. Therefore, the dissent's interpretation raises serious of rights" to crime victims. In my view, the Majority patently
constitutional *1223 issues by concluding that there are no errs in holding, as a matter of law, that the crime victims
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of Jeffrey Epstein and his co-conspirators had no statutory The Majority concludes "the CVRA was never triggered"
rights whatsoever under the CVRA. Instead, our Court should at all, even though the U.S. Attorney's Office prepared a
enforce the plain and unambiguous text of the CVRA and hold 53-page indictment against Epstein but later secretly entered
that the victims had two CVRA rights—the right to confer into a plea deal, granting federal immunity to Epstein and
with the government's attorney and the right to be treated his coconspirators. Id. According to the Majority, because
fairly—that were repeatedly violated by the U.S. Attorney's the Office cleverly entered into a sweetheart plea deal with
Office in the Southern District of Florida. I Epstein "pre-charge" and never filed the indictment, the
victims never had any CVRA rights in the first place. Id. at
Here, the U.S. Attorney's Office (I) drafted a 53-page 1198,1205-06. 2
indictment against sex trafficker and child abuser Epstein and
(2) repeatedly wrote his defense team that the government *1225 I dissent because the plain and unambiguous text
had proof beyond a reasonable doubt that he victimized more of the CVRA does not include this post-indictment temporal
than 30 women as minors. Shockingly though, the Office restriction that the Majority adds to the statute. Although,
then (1) conducted many days of extensive plea negotiations as I discuss later, the two rights provisions at issue include
with Epstein's attorneys and secretly entered into a Non- other limiting principles, there is no textual basis for the
Prosecution Agreement ("NPA"), granting Epstein federal bright-line, post-indictment only restriction the Majority adds
immunity in return for his plea to two state prostitution- to the statute. Rather, the Majority's contorted statutory
solicitation charges, (2) never conferred one minute with interpretation materially revises the statute's plain text and
the victims about the NPA or told the victims that such an guts victims' rights under the CVRA. Nothing, and I mean
agreement was under consideration, (3) worked closely with nothing, in the CVRA's plain text requires the Majority's
Epstein's lawyers to keep the NPA's existence and terms result
hidden from the victims, (4) actively misrepresented to the
victims that the criminal investigation continued when the See for yourself. The CVRA grants "crime victims" these two
NPA was already signed, and (5) never informed the victims unambiguous rights in subsection (a):
about the NPA until after Epstein pled guilty in State Court
and the secret sweetheart deal was done. (a) Rights of crime victims.—A crime victim has the
following rights:
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, (5) The reasonable right to confer with the attorney for the
including but not limited to Sarah Kellen, Adrian Ross, Government in the case.
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
(8) The right to be treated with fairness and with respect for
the truth about the plea negotiations and the NPA's grant of
federal immunity to Epstein and his co-conspirators. the victim's dignity and privacy.
So how does the Majority bail the U.S. Attorney's Office 18 U.S.C. § 377I(a)(5), (8). The text does not contain the
out of its egregious CVRA violations and reverse the Majority's post-indictment temporal restriction. Simply put,
District Court's ruling? The Majority holds that Epstein's crime victims do not have to wait for the government to file
crime victims had no CVRA rights at all because the plea a formal indictment and commence court proceedings before
negotiations with Epstein's defense counsel were conducted having these CVRA rights.
"pre-charge" and the Office never filed the indictment and
commenced court proceedings. That is to say, the Majority ti
In fact, the CVRA's venue provision in § 3771(d) expressly
crafts a bright-line, blanket restriction on the statute: the provides that, "if no prosecution is underway," the victims
CVRA grants crime victims no rights whatsoever unless and can file suit to assert their subsection (a) rights "in the
until a formal indictment is filed in a court. See Maj. Op. at district court in the district in which the crime occurred."
1198.
Mt § 3771(d)(1), (3). In filing this lawsuit back in 2008,
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the petitioner crime victims did what the CVRA expressly ongoing CVRA rights to confer and be treated fairly.
authorized them to do. Tellingly, it was not until the petitioner victims filed this
lawsuit that the Office reversed course and took the stance
To be clear, nothing in the CVRA empowers crime victims that the victims never had any CVRA rights in the first place.
to force a prosecutor to prosecute. See a id. § 3771(dX6).
Next, I examine the CVRA text and apply the relevant canons
As the Concurring Opinion well points out, the Executive
of statutory interpretation. Then, I show the flaws in the
Branch has exclusive authority and absolute discretion over
Majority's statutory analysis. In one breath, the Majority
prosecutorial decisions and whether to seek indictment or
urges Congress to fill the gap left by (the Majority's reading
not. Conc. Op. at 1221-22. But what the CVRA does do
of) the CVRA and in the next tells us why granting victims
is grant victims a statutory right to have an opportunity to
two CVRA rights "pre-charge" would be a bad idea.
speak to the prosecutor before the prosecutor makes that
decision. In f i § 3771(c), the CVRA even mandates that Given this is a plain-text case, the Majority curiously carries
the U.S. Attorney's prosecutors, while "engaged in the ... on at length about slippery slopes and bad policy implications
investigation[ ] or prosecution of crime shall make their best that the Majority says counsel against enforcing any victim
efforts" to accord victims these statutory rights in subsection rights "pre-charge." Yet, since the Fifth Circuit's 2008
(a). Id. § 3771(c)(1). After conferral, the prosecutor has decision and the District Court's 2011 decision, there has been
the exclusive authority and discretion whether to indict or not. no flood of civil suits by victims, no evidence of victims'
Pre-charge, the Office spent days conferring and negotiating abuse of their CVRA rights, and no prosecutors' complaints
with Epstein's defense team, but had not a minute for the about impairment of their prosecutorial discretion.
victims.
The Majority also dresses up its flawed statutory analysis
Unlike the Majority, I agree with the Fifth Circuit that crime with rhetorical flourish, using language like "scandalous,"
victims have a CVRA right to confer with the government "national disgrace," and "the sad details of this shameful
attorney, even if a plea deal is struck before any formal story," while also expressing sincere empathy for the victims:
"Despite our sympathy for Ms. Wild and others like her, who
indictment is filed. See 1 In re Dean, 527 F.3d 391, 394 (5th suffered unspeakable horror at Epstein's hands, only to be
Cir. 2008). As the Fifth Circuit emphasized: "In passing the left in the dark—and, so it seems, affirmatively misled—by
Act, Congress made the policy decision—which we are bound government lawyers, we find ourselves constrained to deny
to enforce—that the victims have a right to inform the plea her petition." Maj. Op. at 1198, 1200. The Majority confesses
negotiations process by conferring with prosecutors before a that "[i]t isn't lost on us that our decision leaves petitioner and
plea agreement is reached." Id. at 395. others like her largely emptyhanded" and "we sincerely regret
that." Id. at 1221. In addition to ruminating in sincere regret
What's worse is that the Majority concedes, as it must, and sympathy, we, as federal judges, should also enforce the
plain text of the CVRA—which we are bound to do—and
that § 3771(a)(5)'s conferral right and [ t § 3771(a)(8)'s
ensure that these crime victims have the CVRA rights that
right to be treated with fairness have no temporal limitation
Congress has granted them.
on their face and that petitioners *1226 are "not without
[their] own textual arguments." Maj. Op. at 1206, 1208,
Next, I address the constitutional concerns about the CVRA
1210. The Majority admits: "The interpretation of the CVRA
raised in the Concurring Opinion, although that, so far, has not
that petitioner advances, and that the district court adopted,
been the issue in this appeal. Lastly, I address the remedy and
is not implausible; the CVRA could be read to apply pre-
why, due to the U.S. Attorney's Office's egregious violations
charge." Id. at 1205. Yet, the Majority refuses to enforce the
of the victims' rights, this Court should remand the case to
Act as written by Congress and grafts onto the plain and
the District Court for consideration of the victims' requested
unambiguous text a restriction Congress never enacted.
remedies.
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
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B. Aug. 2006 Letter to Crime Victim about CVRA
I. PROSECUTORS ADVISE Rights
VICTIMS HAVE CVRA RIGHTS
Throughout the two-year investigation, once a victim of
This case is not about the start or middle stages of a criminal Epstein's sexual abuse was identified, the lead Assistant U.S.
investigation. Rather, as detailed below, this case is about (I) Attorney ("AUSA") assigned to the case, A. Marie Villafana,
a completed investigation of federal sex-trafficking crimes sent a letter telling the victim that she was protected by the
against minor girls and (2) the U.S. Attorney's Office's CVRA and explaining her statutory rights under the CVRA.
repeated communications that it (a) had "proof beyond a
reasonable doubt" that over 30 minor girls were victims of For example, in 2006 and before an indictment was drafted
Epstein's criminal sexual conduct and (b) had "decided to in 2007, the U.S. Attorney's Office told petitioner Jane Doe
proceed with [Epstein's] indictment." Let's start with the 2 in a letter that she had statutory rights "to confer with
investigation and how the Office in 2006 wrote the victims the attorney for the Government in the case," "to be treated
that they did have CVRA rights pre-charge. with fairness," and to petition the District Court if her CVRA
rights were being violated. See? 1 18 U.S.C. § 3771(a),? 1(d)
*1227 A. 2005 — 2007 Criminal Investigation (3). The Office's 2006 letter explained that the Department
of Justice would make its "best efforts" to ensure Jane Doe
In 2005, the parents of a 14-year-old girl reported to the Palm 2's CVRA rights were protected. Later, in March 2007, the
Beach Police Department that Jeffrey Epstein sexually abused Office began sending similar letters to Epstein's other victims,
their daughter. This report began the investigation into the informing them of their ongoing CVRA rights.
then 52-year-old billionaire Jeffrey Epstein—an investigation
that ultimately revealed that Epstein assembled a network This initial position of the U.S. Attorney's Office—that
of underage girls whom he sexually abused at his mansion the petitioners had ongoing CVRA rights—is not surprising
in Palm Beach, Florida, elsewhere in the United States, and given that the CVRA was enacted to protect crime victims'
overseas. rights and ensure their involvement in the criminal justice
process. United States v. Moussaoui, 483 F.3d 220, 234 (4th
In 2006, at the Palm Beach Police Department's request, the
Federal Bureau of Investigation ("FBI") opened a federal Cir. 2007);? II Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016
investigation into Epstein's and his personal assistants' use (9th Cir. 2006) ("The [CVRA] was enacted to make crime
of facilities of interstate commerce to induce girls between victims full participants in the criminal justice system.").
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 II. MAY 2007: FEDERAL INDICTMENT PREPARED
case.
By May 2007, the U.S. Attorney's Office had completed an
The FBI established that Epstein used young female recruiters 82-page prosecution memo and a 53-page draft indictment
and paid employees to find and bring minor girls to him, as against Epstein, charging him with numerous federal crimes
often as three times a day, for his own and others' sexual of sex trafficking minor victims. The prosecutors were
gratification. Epstein also directed other people to sexually prepared to *1228 indict Epstein. For the victims, so far, so
abuse the minor girls, including his co-conspirator Nadia good. But what the victims didn't know is what was secretly
Marcinkova. This in-depth federal investigation proved that, going on behind the scenes.
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 III. JAN. — SEPT. 2007: PROSECUTORS
in the sexual abuse themselves. The victims include the NEGOTIATE WITH EPSTEIN
petitioners in this case, Jane Doe 1 and Jane Doe 2, who were
15 years old when first sexually abused by 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
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the forthcoming federal criminal charges. During this time, remain part of our case file. It probably would be subject to a
Epstein's defense team made multiple presentations to the FOIA request, but it is not something that we would distribute
Office to try to convince them not to prosecute Epstein, without compulsory process."
maintaining he committed no federal crimes.; Those defense
presentations were not successful. The record contains The victims were not told that plea negotiations were ongoing,
extensive communications showing that, as of August 2007, much less that the Office was seriously considering a non-
the Office's prosecutors were recommending and ready to prosecution agreement granting federal immunity to Epstein
proceed with the federal indictment of Epstein. and his co-conspirators. Rather, the parties made great efforts
to keep that secret from the victims and the public, too.
In early September 2007, U.S. Attorney R. Alexander Acosta
met with some of Epstein's defense team, along with the
A. Sept. 24, 2007: Execution and Terms of NPA
federal prosecutors assigned to Epstein's case and the Chief
of the Child Exploitation and Obscenity Section of the On September 24, 2007, the U.S. Attorney's Office and
Department of Justice's Criminal Division in Washington, Jeffrey Epstein signed a seven-page agreement, entitled the
D.C. Epstein's defense team again raised federalism-based
"Non-Prosecution Agreement." 5 The NPA provided that the
arguments that were rejected. As U.S. Attorney Acosta
Office would not prosecute Epstein or his co-conspirators in
explained, "[a]fter considering the arguments raised at the
the Southern District of Florida for federal felony crimes of
September 7th meeting, and after conferring with the FBI
sex trafficking more than 30 minors if: (I) Epstein pled guilty
and with [the Chief of the Child Exploitation and Obscenity
in Florida State Court to two state prostitution-solicitation
Section], our Office decided to proceed with the indictment."
charges, and (2) Epstein made a binding recommendation
At that time, the State of Florida had already charged Epstein
that the State Court impose an 18-month sentence in the
with one count of solicitation of prostitution.
county jail. The crimes listed in the NPA were: (I) sex
trafficking of minors by force, fraud, or coercion, in violation
of IS U.S.C. §§ 1591(a)( I ) and 2; (2) conspiracy to
IV. NON-PROSECUTION AGREEMENT
travel and traveling in interstate commerce for the purpose
What happened next remains baffling, to put it mildly. During of engaging in illicit sexual conduct with minor females, in
September 2007, Epstein's defense attorneys engaged in violation of 4 18 U.S.C. § 2423(b), (e), and f 1 (0; and
more intensive pre-indictment plea negotiations with the U.S. (3) conspiracy to use and using means of interstate commerce
Attorney's Office. to knowingly persuade, induce, or entice minor females to
engage in prostitution, in violation of 18 U.S.C. §§ 2422(b)
Although the record does not explain why, the Office then and 371.
took the position that two types of plea agreements could
apply to Epstein's federal crimes: (1) a plea agreement to As for the victims, the NPA added insult to injury. The NPA
federal charges; or (2) a non-prosecution agreement, whereby provided that if and only if the victims agreed to waive any
the Office would agree not to federally prosecute Epstein and other claim for damages, the victims could obtain an attorney
his co-conspirators, in return for which Epstein would plead
paid for by Epstein and file Vt a 18 U.S.C. § 2255 civil lawsuits
guilty to a mere two state prostitution-solicitation charges and
against Epstein for restitution. Of course, restitution in a
agree to an 18-month sentence in the county jail.
criminal case is not contingent upon a victim giving up rights
to pursue damages claims.
On September 16, 2007, Epstein's counsel Jay Lefkowitz
sent the U.S. Attorney's Office a proposed written agreement,
Even more striking, the NPA extended immunity to
wherein the Office would extend immunity from federal
any "potential coconspirator" of Epstein's, stating: "In
prosecution to Epstein and certain co-conspirators. 4 The next consideration of Epstein's agreement to plead guilty and to
day, Epstein's *1229 counsel Lefkowitz followed up, asking provide compensation in the manner described above, ...
if the Office "intend[ed] to make the deferred prosecution the United States also agrees that it will not institute any
agreement public," should Epstein agree to "go that mute." criminal charges against any potential co-conspirators of
AUSA Villafana responded: "A non-prosecution agreement Epstein, including but not limited to Sarah Kellen, Adriana
would not be made public or filed with the Court, but it would
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Ross, Lesley Groff, or Nadia Marcinkova." 6 Apparently, the have no control over what is communicated to the identified
coconspirators had not cooperated or assisted the government. individuals [the victims] at this most critical stage."
Rather, the sole consideration for their federal immunity was
that Epstein plead to two state *1230 charges and provide Epstein, of course, did not want the victims to know there
potential restitution to his victims, but only if the victims would be no federal prosecution of his sex-trafficking-of-
waived all damages claims against Epstein. The NPA even minors crimes if he pled guilty in State Court to merely
stated "that this agreement will not be made part of any public soliciting prostitution. Everyone knew the victims would be
disgusted, raise vigorous objections on the federal level, and
record."7
try to convince the State Court judge not to be beguiled
into accepting such a state plea that was tied to no federal
B. Office Does Not Confer with Crime Victims prosecution for sex-trafficking crimes against more than 30
minor victims. While his state plea did not happen until June
Although the U.S. Attorney's Office accepted the case for 30, 2008, in the interim, Epstein's attorneys worked to keep
prosecution and prepared a 53-page indictment, the Office the terms of the 2007 NPA secret until after Epstein's state
never conferred with the victims about the NPA and never plea was accepted and the deal was done.
told the victims that such an agreement was being considered,
much less being negotiated. While the Office spent untold In later correspondence with Epstein's attorneys, AUSA
hours negotiating the NPA's terms with Epstein's skilled Villafana admitted that Epstein did not want the U.S.
defense team, the Office never told the victims that it was Attorney's Office to inform the State Attorney's Office of the
negotiating and signing an agreement that would grant federal facts supporting the additional state prostitution-solicitation
immunity to Epstein and his co-conspirators. The Office charge, nor did Epstein want federal victims to contact
kept this information from Epstein's victims, despite earlier the State Court or prosecutor because the *1231 state
having sent most, if not all, of the girls the CVRA letters, prosecutor's "opinion may change if she knows the full scope
which advised that the victims had a "right to confer with the of [Epstein's] actions." To this date, the U.S. Attorney's
attorney for the United States in the case" and a "right to be Office has presented no evidence that it or anyone else told the
treated with fairness." 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-
V. SEPT. 2007 — JULY 2008: conspirators—if the State Court accepted his state plea. 8
PROSECUTORS HIDE NPA
Consistent with Epstein's demands, the U.S. Attorney's
The U.S. Attorney's Office also failed to tell the victims about Office did not notify the victims about the NPA. But before
the NPA for at least nine months after it was executed. Instead, acquiescing, the manner in which the Office responded to
the Office misrepresented to the victims that "this case" was Epstein's demands unmasks the truth.
still under investigation, advised them "to be patient," and
never disclosed the government's NPA with Epstein. 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
A. Prosecutors Negotiate With Defense about Notifying
upcoming events, such as Epstein's state plea in return for
Victims
no federal prosecution. Here are examples of what the Office
During that nine-month period, the U.S. Attorney's Office wrote Epstein's attorneys in November and early December
of 2007:
and Epstein's defense team negotiated whether and to what
extent the victims would be told about the NPA's resolution
• "The United States has a statutory obligation (Justice for
of the federal case. In this case, the Office admitted that it
All Act of 2004) 9 to notify the victims of the anticipated
was a deviation from the government's standard practices
upcoming events and their rights associated with the
to negotiate with defense counsel about the extent of
crime victim notifications. Nevertheless, Epstein's defense agreement entered into by the United States and Mr.
Epstein in a timely fashion."
attorneys demanded that the victims not be told about the
resolution of the federal case because otherwise Epstein "will
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resolution, as required by law," the Office never did that
• "P Section 3771 ... commands that `employees of the before Epstein pled guilty in State Court on June 30, 2008,
Department of Justice ... engaged in the detection, and the deal was consummated.
investigation, or prosecution of crime shall make their
best efforts to see that crime victims are notified of, and
B. 2008 Victims Misled
accorded, the rights described in subsection (a).' "
Another chapter in this sordid story. Before going to State
• "Our Non-Prosecution Agreement resolves the federal
Court, Epstein apparently was not satisfied with his defense
investigation by allowing Mr. Epstein to plead to a
team's success in securing the highly favorable NPA. In
state offense. The victims identified through the federal
January 2008, Epstein's attorneys sought higher-level review
investigation should be appropriately informed, and ow
[NPA] does not require the U.S. Attorney's Office to within the Justice Department. to U.S. Attorney Acosta
forego its legal obligations." agreed to allow Epstein to delay further his State Court
plea while his attorneys appealed to main Justice. This time
• "[T]he Office believes that it has proof beyond a Epstein's defense team got nowhere.
reasonable doubt that each listed individual was a victim
of Mr. Epstein's criminal conduct while the victim was Nonetheless, during this review period, the U.S. Attorney's
a minor. The law requires us to treat all victims `with Office still did not tell the victims a signed NPA existed.
fairness and with respect for the victim's dignity and Instead, on January 10, 2008, the government sent Epstein's
privacy.' f U I S U.S.C. § 3771(aX8). We will not include victims letters misrepresenting that "[t]his case is currently
under investigation. This can be a lengthy process and we
any *1232 language that demeans the harm they may
have suffered." request your continued patience while we conduct a thorough
investigation."
• "[W]e will not remove the language about contacting
AUSA Villafana or Special Agent Kuyrkendall with Jane Doe I's sworn testimony is revealing. On January 31,
questions or concerns. Again, federal law requires that 2008, Jane Doe 1 met with AUSA Villafana, FBI agents, and
victims have a 'reasonable right to confer with the another federal prosecutor and provided additional details of
Epstein's sexual abuse of her. Jane Doe 1 said she hoped
attorney for the Government in this case.' t a 18 U.S.0
Epstein would be prosecuted and that she was willing to
3771(a)(5)."
testify against him at trial. Based on the earlier letters she
The evidence shows the Office repeatedly told Epstein's received, Jane Doe I believed the federal prosecutors would
attorneys that it had CVRA obligations to notify and confer contact her before reaching any final resolution. During that
with the victims about the NPA and upcoming events. As meeting, however, the federal prosecutors and FBI agents still
the state plea would resolve Epstein's federal sex-trafficking did not disclose to Jane Doe I that the Office had signed
crimes, the CVRA, as well as basic decency and fairness, the NPA, which barred Epstein's federal prosecution for sex-
demanded the Office tell the victims of that critical fact and trafficking crimes against her.
about the State Court proceeding.
The U.S. Attorney's Office continued to conceal the existence
Yet, on December 19, 2007, U.S. Attorney Acosta sent a of the NPA from all the victims for months to come. In mid-
letter to Epstein's counsel addressing "the issue of victim's June *1233 of 2008, Bradley Edwards, the Fort Lauderdale,
Florida attorney for several of Epstein's victims, contacted
rights pursuant to Section 3771." U.S. Attorney Acosta AUSA Villafana to inform her that he represented Jane Doe
stated: "I understand that the defense objects to the victims
I and, later, Jane Doe 2. AUSA Villafana and Edwards
being given notice of time and place of Mr. Epstein's state
discussed the possibility of federal charges being filed against
court sentencing hearing. ... We intend to provide victims Epstein in the future. Edwards was led to believe that
with notice of the federal resolution, as required by law. We
federal charges could still be filed by the Office, with AUSA
will defer to the discretion of the State Attorney regarding
Villafana failing to mention the NPA or any other possible
whether he wishes to provide victims with notice of the state resolution of Epstein's federal case.
proceedings[.]" Despite U.S. Attorney Acosta representing
that "[w]e intend to provide victims with notice of the federal
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nine months earlier in September 2007, the Office had signed
an agreement with Epstein to not prosecute him for federal
VI. JUNE 30, 2008: EPSTEIN'S STATE PLEA
crimes if Epstein pled guilty to two state charges.
On June 30, 2008, Epstein pled guilty in Florida State Court
to (1) solicitation of prostitution and (2) procuring a person Also on July 9, 2008, the U.S. Attorney's Office sent short
under the age of 18 for prostitution. That same day, the State letters to petitioner Wild and Epstein's other victims stating:
Court sentenced Epstein to 18 months' imprisonment in the (I) "the United States ... was prepared to *1234 name [each
county jail. As the Majority concedes, there is no indication girl] in an Indictment as victims of an enumerated offense
that any of Epstein's victims were informed about the NPA or by Mr. Epstein"; but (2) the "United States has agreed to
the terms of his state plea until later. Maj. Op. at 1200. defer federal prosecution in favor of [Epstein's] state plea
and sentence, subject to certain conditions." That cursory
Having still not been informed of the resolution of Epstein's notification still did not provide the full terms of the NPA,
federal case, on July 3, 2008, attorney Edwards sent a such as the provision extending federal immunity to Epstein's
letter to the U.S. Attorney's Office communicating the co-conspirators. 12
victims' wishes that federal charges be filed against Epstein.
Attorney Edwards explained: "We urge you to move forward After multiple hearings, the District Court ordered the U.S.
with the traditional indictments and criminal prosecution Attorney's Office to disclose the NPA to the victims. In
commensurate with the crimes Mr. Epstein has committed, August 2008, the petitioners finally obtained a copy of the
and we further urge you to take the steps necessary to protect NPA. Among other relief, the victims sought rescission of the
our children from this very dangerous sexual perpetrator." NPA.
Because Epstein was "a sexual addict that focused all of his
free time on sexually abusing children," Edwards emphasized What followed was more than a decade of contentious
that "[f]uture abuse and victimization is obvious to anyone litigation between the victims, the U.S. Attorney's Office,
who really reviews the evidence in this case, and future sexual Epstein, and his various defense attorneys. 13 In 2011, the
abuse of minors is inevitable unless [Epstein] is prosecuted, District Court "addresse[d] the threshold issue whether the
tried and appropriately sentenced." 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
VII. PROCEDURAL HISTORY District Court held that it does under the plain text of the
CVRA. Id. at 1341.43. Later, on February 21, 2019, the
On July 7, 2008, Courtney Wild (proceeding as "lane Doe 1") District Court ruled that the U.S. Attorney's Office entered
filed an emergency petition alleging that she was a victim of into the NPA without first conferring with the victims and
Epstein's federal crimes and that the U.S. Attorney's Office violated the victims' CVRA rights to confer and be treated
had violated her CVRA rights (I) to confer with federal
prosecutors, (2) to be treated with fairness, (3) to receive
14
fairly. floe 1_v—United alptrs, 359 F. Supp. 3d 1201,
1218-22 (S.D. Fla. 2019).
timely notice ofrelevant court proceedings, and (4) to receive
information about restitution.
After extensive briefing on remedies for the victims, Epstein
was found dead on August 10, 2019. On September 16, 2019,
Two days later, on July 9, 2008, the U.S. Attorney's Office the District Court entered an order denying the victims any
responded, arguing for the first time, that the CVRA did
remedies and closed the case. As to Epstein, the District Court
not apply at all to pre-indictment plea negotiations with a
determined that "there is no longer an Article III controversy"
potential federal defendant. Once sued, the Office changed its given his death. As to the co-conspirators, the District Court
position despite having earlier written the victims, and later
found it lacked jurisdiction over them.
Epstein's defense team, that the victims had ongoing CVRA
rights, and that the Office had statutory obligations to accord Victim Wild filed a petition for writ of mandamus with
the victims those rights. II this Court, seeking review of the District Court's order
It was only in the Office's July 9, 2008, responsive pleading
denying relief. SeePI 18 U.S.C. § 3771(dX3) ("If the district
court denies the relief sought, the movant may petition the
that Jane Doe 1 first saw reference to the fact that, over
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court of appeals for a writ of mandamus. ... In deciding
such application, the court of appeals shall apply ordinary (3) The right not to be excluded from any such public
court proceeding, unless the court, after receiving clear
standards of appellate review."). IS
and convincing evidence, determines that testimony by the
victim would be materially altered if the victim heard other
testimony at that proceeding.
*1235 VIII. QUESTION PRESENTED
(4) The right to be reasonably heard at any public
This appeal presents this legal question: Whether, after proceeding in the district court involving release, plea,
completing its investigation, preparing a 53-page indictment, sentencing, or any parole proceeding.
and conferring with Epstein's defense team about a pre-charge
plea, the Office violated the victims' CVRA rights by (I) not (5) The reasonable right to confer with the attorney for the
conferring with any of Epstein's victims before agreeing to Government in the case.
the NPA, (2) intentionally and unfairly concealing the NPA
(6) The right to full and timely restitution as provided in
from the victims, and (3) affirmatively misrepresenting the
law.
case status to the victims after the NPA was executed. The
answer depends solely on the text of the CVRA, to which I (7) The right to proceedings free from unreasonable delay.
turn.
(8) The right to be treated with fairness and with respect for
the victim's dignity and privacy.
IX. CVRA'S STATUTORY TEXT
? 1 18 U.S.C. § 377I(a) (2008) (emphasis added). These
A. CVRA's Bill of Rights for Victims
are not merely aspirational principles. [ t Section 3771(c)
(1) directs that "[o]fficers and employees of the Department
In interpreting the CVRA, our Court is guided by the
of Justice ... engaged in the detection, investigation, or
traditional canons of statutory construction. "Our 'starting
prosecution of crime shall make their best efforts to see
point' is the language of the statute itself." ? FFor v that crime victims are ... accorded[ ] the rights described
STME. LLC, 938 F.3d 1305, 1313 (11th Cir. 2019) (quoting It
in subsection (a)." [ Id. § 3771(c)(I). And if crime
? Harrison v. Benchmark Elecs. Huntsville. Inc., 593 F.3d victims' rights are violated, the CVRA provides a procedural
1206, 1212-14 (11th Cir. 2010)). We "assume that Congress mechanism—this lawsuit—whereby the victims may assert
used the words of the statute as they are commonly and
their CVRA rights in federal court. ? § 3771(dX3).
ordinarily understood and must construe the statute so each
Undisputedly, the petitioners qualify as "crime victims" as
of its provisions is given full effect." United States v.
defined in the CVRA. See ? a id. § 3771(e) ("[T]he term
McLvmont 45 F.3d 400, 401 (11th Cir. 1995). Therefore,
'crime victim' means a person directly and proximately
"[w]e do not look at one word or term in isolation, but instead
harmed as a result of the commission of a Federal offense.").
we look to the entire statutory context." STME, 938 F.3d
at 1314 (quoting Harrison, 593 F.3d at 1212).
B. Subsections 3771(a)(5) and (aX8)
The CVRA grants crime victims these eight rights in The two subsections at issue here are (a)(5) and (a)(8), which
subsection (a): grant crime victims "[t]he reasonable right to confer with
the attorney for the Government in the case" and "[t]he
(I) The right to be reasonably protected from the accused.
right to be treated with fairness." *1236 1 18 U.S.C. §
(2) The right to reasonable, accurate, and timely notice 3771(a)(5), (8). These two statutory rights are stated in plain
of any public court proceeding, or any parole proceeding, language. The text of the two rights has no post-indictment
involving the crime or of any release or escape of the
temporal limitation on its face. The language of? I § 3771(a)
accused.
(5) and ? (O8) is not ambiguous, intricate, obscure, or
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doubtful (as the Majority suggests). Maj. Op. at 1206 & the same meaning where there is "differing language" in the
n.8. As enacted, Congress granted these rights to victims subsections).
of crime, and though the rights are not wholly unlimited
as discussed later, Congress did not restrict these rights to Second, "[a] familiar principle of statutory construction ... is
only the time after an indictment is filed in federal court. that a negative inference may be drawn from the exclusion of
In interpreting a statute, when "the language at issue has a language from one statutory provision that is included in other
plain and unambiguous meaning," we "need go no further."
provisions of the same statute."C a Hamdan v. Rumsfeld, 548
United States v. St. Amour, 886 F.3d 1009, 1013 (11th Cir.), U.S. 557,578, 126 S. Ct. 2749, 2765, 165 L.Ed.2d 723 (2006);
cert. denied, — U.S. —, 139 S. Ct. 205, 202 L.Ed.2d
see also Antonin Scalia & Bryan A. Garner, Reading Law:
141 (2018) (quoting ?IIUnited States v. Fisher, 289 F.3d The Interpretation of Legal Texts 170 (2012) ("[W]here a
1329, 1337-38 (11th Cir. 2002)). 16 Our statutory analysis document has used one term *1237 in one place, and a
thus should start and end with the language of subsections (a) materially different term in another, the presumption is that
(5) and (a)(8). the different term denoted a different idea.").
In other words, had Congress wanted the conferral and
The overall statutory structure of lin§ 3771 also supports fairness rights to apply only after the government has
this plain text reading. Beyond their plain language, what filed an indictment in court, Congress could have easily
Congress omitted from P u subsections (aX5) and P. (a)(8) written subsections (aX5) and (a)(8) more narrowly, as it
of § 3771, but expressly included in subsections (a)(2), (a) did in other parts of subsection (a). But "the presumed
point of using general words is to produce general coverage
(3), and (aX4), is instructive too. In P v § 3771, subsection
—not to leave room for courts to recognize ad hoc
(a)(2) grants victims the right to "notice of any public court
exceptions." Scalia & Garner supra at 101 ("General terms
proceeding"; subsection (aX3) grants victims the right "not
are to be given their general meaning (generalia verba
to be excluded from any such public court proceeding"; and
1
subsection (a)(4) grants victims the right "to be reasonably cunt grneraliter intelligenda)."). Indeed, the t § 3771(a)
subsections explicitly tied to court proceedings show that
heard at any public proceeding in the district court." IS
when Congress wants to limit crime victims' rights to post-
U.S.C. § 3771(a)(2)-(4).
indictment court proceedings it knows how to do so and
does so expressly. The CVRA's text draws a clear distinction
In stark contrast, in subsections (aX5) and (aX8), Congress
between a victim's rights to confer and be treated fairly and
granted victims rights to confer and be treated fairly without
a victim's rights to have notice of and participate in "public
tying those rights to "public court proceedings" or "public
court proceedings," and our Court is required to enforce the
proceedings in the district court." Congress's omission of the
statute's distinction as Congress wrote and enacted it.
distinct phrase of "public court proceedings" in subsections
(a)(5) and (aX8) is highly significant.
C. Subsections 3771(c) and (d)
First, under the conventional rules of statutory construction,
where Congress has used a more limited term in one part
Two other CVRA subsections—t t § 3771(c) and I v (d)—
of a statute, but left it out of other parts courts should not
also support my conclusion that Epstein's victims had the
imply the term where it has been excluded. See P 11 Keene rights to confer and be treated fairly before plea negotiations
Corp. v. United States, 508 U.S. 200, 208, 113 S. Ct. 2035, were completed. "It is a fundamental canon of statutory
2040, 124 L.Ed.2d 118 (1993) ("[W]here Congress includes construction that the words of a statute must be read in their
particular language in one section of a statute but omits context and with a view to their place in the overall statutory
it in another ... , it is generally presumed that Congress scheme." I Home Depot U.S.A.. Inc. v. Jackson 587 U.S.
acts intentionally and purposely in the disparate inclusion
—, —, 139 S. Ct. 1743, 1748, 204 L.Ed.2d 34 (2019)
t
or exclusion."); Russello v. United States, 464 U.S. 16,
(quoting 11 Davis v. Mich. Dep't of Treasury, 489 U.S.
23, 104 S. Ct. 296, 300, 78 L.Ed.2d 17 (1983) (declining to
803, 809, 109 S. Ct. 1500, 1504, 103 L.Ed.2d 891 (1989)).
read a term appearing in two subsections of a statute to have
"Ultimately, context determines meaning." 1 Johnson v.
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United States 559 U.S. 133, 139, 130 S. Ct. 1265, 1270, 176
L.Ed.2d I (2010). Subsections (c) and (d) not only provide So how does the Majority resist the plain reading of the venue
context for subsection (a), but expressly refer to the rights in
provision in § 3771(d)(3)? To be fair, the Majority admits
subsection (a).
first that: "Petitioner's interpretation of subsection (dX3) is
not implausible—that provision could be read to mean that
C a Section 3771(c), titled "Best efforts to accord rights," CVRA rights attach before the commencement of criminal
instructs that the Justice Department and "other departments proceedings." Maj. Op. at 1212. But then the Majority
and agencies of the United States engaged in the detection argues that, after a criminal case is totally over, there is no
investigation, or prosecution of crime shall make their best prosecution underway and hence this venue provision is about
efforts to see that crime victims are ... accorded[ ] the "post-judgment" matters. Id. at 1212-13. The Majority's
rights described in subsection (a)." I". 18 U.S.C. § 3771(c) reading off N § 3771(dX3) does not comport with how the
(I) (emphasis added). Logically, there would be no reason to word "undenvay" is ordinarily or commonly understood. In
mandate that federal agencies involved in crime "detection" everyday parlance, if "a process, project, [or] activity," is not
or "investigation" see that victims are accorded their CVRA "underway," we generally understand that to mean it has not
rights if those rights did not exist pre-charge. Indeed, the use yet begun. Id, at 1212-13. It is a stretch to say that when
of disjunctive wording—the "or"—indicates agencies that fit something is not "underway," it is commonly or ordinarily
either description must comply, and not just, for example, the understood to mean that the something is completed."
FBI, which is at times engaged in both crime investigation
and prosecution. In addition, the Majority's interpretation of the phrase—"if
no prosecution is underway"—makes no sense because a
A victim's right to conferral is with the government's attorney post-judgment action would logically be filed in the district
in the case, not with the FBI. But the fact that the FBI has court where the conviction was entered. Even the Majority
a "best efforts" duty during the criminal investigation to see "concede[s] that this reading isn't perfectly seamless, in that
that a victim's conferral rights are honored is another textual it would require the victim to file her post-judgment motion
signal that the victim has conferral rights pre-charge, where 'in the district in which the crime occurred' rather than, as one
the case has matured to the point that a government attorney might expect, in the district in which the prosecution occurred
is assigned. and the conviction was entered." Id. at 1213 n.19.
Lest any doubt remains, the CVRA's venue provision in Not "perfectly seamless" is an odd statutory interpretation.
f a § 3771(dX3) conclusively demonstrates that the Act The Majority's faulty interpretation actually makes this part
gives crime victims rights pre-charge. ? Section 3771(d)(3) of the venue provision superfluous. See ?. Corley v. United
provides: "The rights described in subsection (a) shall be States, 556 U.S. 303, 314, 129 S. Ct. 1558, 1566, 173 L.Ed.2d
asserted in the district court in which a defendant is being 443 (2009) ("[O]ne of the most basic interpretive canons
prosecuted for the crime or, if no prosecution is underway in [is] that a statute should be construed so that effect is given
the district court in the district in which the crime occurred." to all its provisions, so that no part will be inoperative or
Id. § 3771(dX3) (emphasis added). superfluous, void or insignificant."); C a Garcia v. Vanguard
Car Rental USA. Inc., 540 F.3d 1242, 1247 (11th Cir. 2008)
Read most naturally, this venue provision provides that, if (stating under the canon against surplusage, "we strive to
a prosecution is underway, *1238 victims may assert their give effect to every word and provision in a statute when
rights in the ongoing criminal action. Id. If, however, "no possible"). Our job is to enforce the statute as written by
prosecution is underway," victims may assert their rights in Congress.
the district court of the district in which the crime occurred. Id.
And if a crime victim's CVRA rights may be enforced before In sum, the victims' two statutory rights—to confer and be
a prosecution is formally undenvay in district court, then to treated fairly—though not unlimited, have no bright-line,
avoid a strained reading, those rights must attach at some post-indictment temporal restriction on their face. See 18
point before an indictment formally charges the defendant U.S.C. § 3771(a)(5), (8). Federal agencies and prosecutors
with the crime. engaged in the "detection, investigation, or prosecution"
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*1239 of crime "shall make their best efforts" to see *1240 Although "case" means both criminal investigation
that crime victims arc "accorded[ ] the rights described and formal criminal proceedings, it is worth noting whom
the conferral right is between: the victim and the attorney
in subsection (a)." See id. § 3771(c)(1). And "if no
for the government. That fits the petitioners' claim that
prosecution is undenvay," the venue provision directs victims
once the criminal case has matured to plea negotiations by
that "[t]he rights described in subsection (a) shall be
"the attorney for the Government in the case" with defense
asserted ... in the district court in the district in which the crime
counsel, the victims had the right to know that and to confer
occurred." See? id. § 377I(dX3). with the government's attorney.
As its second instrument, the Majority drills down on the
D. Majority's Flawed Statutory Analysis
meaning of"the attorney for the Government" in t' § 3771(a)
So how in the holy name of plain text does the Majority add (5). The Majority argues that it means one attorney and
such a substantive and temporal restriction on the victims' therefore the conferral right "attaches only after proceedings
rights to confer and be treated fairly and hold that victims have have begun, at which point that particular person will
no CVRA rights until after the government files an indictment presumably be more readily identifiable." Maj. Op. at 1207.
and commences proceedings? The Majority hacks away at the I don't quarrel with the fact that an attorney needs to
plain text with four tools. be "readily identifiable," as the Majority puts it. But the
Majority wrongly concludes that happens only once court
First, the Majority cherry picks the meaning of "case" inIt § proceedings begin after a formal indictment. That conclusion
3771(a)(5) and narrows it to mean judicial case only. Maj. is divorced from reality and sorely lacking in explanation.
Op. at 1207. "Case," however, has long had a much broader Who does the Majority think procures an indictment—
meaning than the Majority uses. As stated in dictionary just some random attorney not assigned to the case pre-
definitions, "case" is both "a circumstance or situation (as charge? Nonsense. Contrary to the Majority's presumption,
a crime) requiring investigation or action by the police or specific government attorneys are routinely assigned to
other agency" and "the matters of fact or conditions involved draft indictments and handle pre-charge matters. Once an
in a suit: a suit or action in law or equity." Case, Webster's investigation is completed, the case has matured to the
Third New International Dictionary 345 (2002). Likewise, indictment-drafting stage and pre-charge plea negotiations
in Black's Law Dictionary, the term "case" can mean both with defense counsel have begun, there is obviously a "readily
"[a] civil or criminal proceeding, action, suit, or controversy identifiable" attorney in the case.
at law or in equity <the parties settled the case>" and "[a]
criminal investigation <the Manson case>." Case, Black's What I quarrel with is the Majority's leap from this statutory
Law Dictionary 258-59 (10th ed. 2014). As shown in my phrase to its mistaken conclusion that this phrase translates
factual background, everyone involved in Epstein's case— to the Majority's claimed post-indictment restriction on the
from AUSA Villafana, to the Deputy Attorney General, and conferral right. Notably, the pre-charge period has become
even Epstein's defense team—called this a "case" before an crucial to white-collar defense attorneys, who are hired to
indictment was filed. represent potential defendants pre-charge precisely in order
to negotiate with the already assigned, readily identifiable
The Majority brushes aside the fact that the term "case" can prosecutor and extract the best plea deal in advance of any
mean both a judicial case and an investigative case on the indictment. The Majority's pre-charge rule will deny victims'
basis that Black's first defines "case" as a civil or criminal CVRA rights to confer and fairness in cases involving white-
proceeding and only second as a criminal investigation. Maj. collar and other wealthy defendants who commonly engage
in pro-charge plea negotiations.
Op. at 1207. IS But since when is statutory interpretation
as simple as picking the first definition listed in a Black's
Jeffrey Epstein's case illustrates my point. The U.S.
dictionary entry to the exclusion of a word's ordinary
Attorney's Office assigned specific attorneys, with AUSA
meaning? The Majority cites no legal support for its "first
Villafana being the lead prosecutor and primary attorney
listed dictionary definition" canon of construction. 19 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
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identifiable attomey—"the attorney for the Government"— could not exist absent such a proceeding. A victim's right to
for Epstein's victims to confer with even though formal court receive "timely notice of," "not ... be excluded from," or "be
proceedings had not yet commenced. We should take the reasonably heard at" a proceeding would not attach until the
time when such a proceeding would or could be held. See
victims' rights granted in1'1' § 377I(aX5) and P ' (aX8) at face
value and not restrict them to benefit the privileged few. 2° ? 18 U.S.C. § 3771(a)(2)-(4). Those rights are contingent on
the existence of a court proceeding, of which a victim might
*1241 As its third tool to axe the plain text, the Majority be notified, from which a victim might be excluded, or at
which a victim might be heard. In contrast, a victim's rights to
contends that its reading of? 1§ 3771(a)(5) and (a)(8) is confer or be treated fairly in no way flow from or presuppose
supported by the canon noscitur a sociis that is, 'a word ongoing court proceedings. It makes little sense to take the
is known by the company it keeps.' " Scg ? " S.D. Warren inherent temporal limits placed on rights explicitly tied to and
Co. v. Me. Bd. of Envtl. Prot. 547 U.S. 370, 378, 126 S. dependent upon court proceedings and transfer them to rights
Ct 1843, 1849, 164 L.Ed.2d 625 (2006); Maj. Op. at 1208- which do not carry that particular limitation.
09. Do not fall for this. The noscitur a sociis principle is a
"useful rule of construction where words are of obscure or Although public court proceedings are mentioned in three
doubtful meaning and then, but only then, its aid may be different rights in? § 3771(a)(2)-(4), and crime victims have
sought to remove the obscurity or doubt by reference to the tt
the right to be protected from the accused in ? § 377``1(a)
associated words."? a Russell Motor Car Co. v. United States,
'
261 U.S. 514, 520, 43 S. Ct 428, 430, 67 L.Ed. 778 (1923). (1), as well as the right to "full and timely restitution" in §
3771(a)(6), nothing in the overall statutory context suggests
But here, the meaning of the plain words in P § 3771(a)(5) subsection (a) is focused exclusively on victims' rights
and I (aX8) is not in doubt and all other contextual clues accruing only after the filing ofan indictment. See . Ali, 552
support that meaning. Thus, the canon cannot be invoked U.S. at 225-26, 128 S. Ct. at 839-40 (refusing *1242 to apply
to defeat Congress's decision to grant crime victims these the canon noscitur a sociis to narrow the phrase "any other law
plainly-worded rights of conferral and fairness. See ? a Ali v.
enforcement officer" in f 28 U.S.C. § 2680(c) to the scope of
Fed. Bureau ofPrisons 552 U.S. 214, 226-27, 128 S. Ct 831, the phrase that preceded it, "any officer ofcustoms or excise,"
839-40, 169 L.Ed.2d 680 (2008) (rejecting the invocation because "nothing in the overall statutory context suggests that
of this canon as an "attempt to create ambiguity where the
customs and excise officers were the exclusive focus of the
statute's text and structure suggest none"). 1
provision"); see also Beecham v. United States, 511 U.S.
Moreover, the cases the Majority cites for this canon involved 368, 371, 114 S. Ct. 1669, 1671, 128 L.Ed.2d 383 (1994)
statutes with much stronger and closer contextual clues than (explaining that the noscitur a sociis "canon of construction is
by no means a hard and fast rule"). The temporal limitations
in ?II § 3771(a). See Gutierrez v. Ada, 528 U.S. 250,
254-58, 120 S. Ct. 740, 743.46, 145 L.Ed.2d 747 (2000) in other § 3771(a) subsections are not inconsistent in any
(applying the canon to narrow the phrase "any &thou" way with the conclusion that crime victims' rights to confer
where it was closely surrounded by six specific references to and be treated fairly "sweep[ ] as broadly as [the] language
l
gubernatorial elections); C g Lagos v. United States 584 U.S. suggests.", 2 See p Ali, 552 U.S. at 226, 128 S. Ct. at 840.
—, 138 S. Ct. 1684, 1688-89, 201 L.Ed.2d 1 (2018)
(applying the canon to narrow the words "investigation" The Majority's fourth attempted blow at the CVRA's
and "proceedings" to government investigations and criminal plain text in subsections (a)(5) and (aX8) comes via a
proceedings where the words were closely surrounded marred reading of the word "motion" in subsection (dX3).
by three specific expenses victims would incur during ? Section 3771(d)(3) provides that a CVRA victim asserts
government investigations and prosecutions, but not in her subsection (a) rights in the district court by filing a
private investigations and bankruptcy proceedings).
"[m]otion for relief." ?I ' 18 U.S.C. § 3771(d)(3). Again, "if
no prosecution is underway," that motion is to be filed "in the
Importantly too, the three subsection (a) rights in § 3771 district court in the district in which the crime occurred." Id.
that refer to court or public "proceeding[s]" are rights that
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Once filed, "[t]he district court shall take up and decide any After an explosion at a refinery owned and operated by BP
motion asserting a victim's right forthwith." Id. Products North America Inc. ("BP") killed 15 people and
injured more than 170, the Department of Justice investigated
In considering the usage of "motion" in C 8 § 377I(dX3), and decided to bring federal charges against BP. f I Id.
the Majority asserts that a "motion" is solely a request filed at 392.93. Before filing them, the government negotiated
within the context of an ongoing judicial proceeding. Maj.
a plea deal with BP. Id, at 392. At the government's
Op. at 1209-10. The Majority argues that, since CVRA rights
request, the district court entered an ex parte order that
can only be asserted in a "mid-proceeding `motion[ ],' " the
prohibited the government from notifying the victims of a
CVRA's protections apply only after court proceedings have
started. See id. at 1209-10. potential plea agreement until after one was executed. I[ Id.
at 392.93. Later, the government and BP signed a plea
As with "case," the Majority slices in half the definition of agreement without the government's attorneys conferring
the word "motion." The common legal definition of "motion" with the victims. Id. at 393, 395.
is more general and broader: a motion is "[a] written or
oral application requesting a court to make a specified ruling The Fifth Circuit concluded that the government violated the
or order." Motion, Black's supra, at 1168. This general
definition encompasses a motion initiating a new lawsuit or victims' right to confer under [ § 3771(a)(5) by executing
proceeding, as well as one filed mid-proceeding. In fact, the plea agreement without informing the victims of the
the federal rules and statutes allow quite a few motions likelihood of the criminal charges and learning the victims'
to initiate new proceedings in the district court, such as views on the possible details of the plea bargain. Id. at 394.
motions to quash grand jury and other subpoenas, Fed.
R. Crim. P. 17(c)(2), and motions to vacate, set aside, or
Here, similar to the posture in 'In re Dean, the
correct sentences, 28 U.S.C. § 2255. See also 28 U.S.C.
U.S. Attorney's Office investigated Epstein's sex-trafficking
§ 1361 (mandamus *1243 proceedings are initiated as a
crimes, decided to bring federal charges against him, and
new lawsuit). This very case is a free-standing civil action
engaged in pre-indictment plea negotiations with Epstein's
litigated for a decade because the CVRA expressly provides
defense team. The Office and Epstein then executed an
that "ifno prosecution is underway," the "[m]otion for relief'
NPA, extending immunity to Epstein and his co-conspirators,
is filed "in the district court in the district in which the
without ever conferring with Epstein's victims in violation of
crime occurred." I8 U.S.C. § 3771(d)(3). If anything, [ §
§ 3771(aX5). What's worse, here, the Office deliberately
3771(dX3) demonstrates that the Majority has added a very
concealed the NPA's existence and misled the victims to
substantive restriction—victims have no CVRA rights until
believe that federal prosecution was still a possibility, telling
an indictment commences court proceedings—that has no
them to be "patient" while the investigation proceeded.
meaningful footing in the text of the statute.22
The Majority heavily criticizes the Fifth Circuit's In
it re Dean for merely "echo[ing]" the Texas district court's
E.? In re Dean, 527 F.3d 391 (5th Cir. 2008)
conclusion that "[t]here are clearly rights under the CVRA
The only other circuit court to address this precise issue that apply before any prosecution is underway" and as lacking
has come to the same conclusion as I do. The Fifth Circuit discussion of the CVRA's text, history, or structure. Maj. Op.
has held: " `[T]here are clearly rights under the CVRA that at 1219-20 n.25. What the Majority leaves out is that the
apply before any prosecution is undenvay.' ... Logically, this Texas district court's decision—echoed by the Fifth Circuit—
includes the CVRA's establishment of victims' reasonable contains a thorough examination of the CVRA's text, history,
right to confer with the attorney for the Government.' I 18 and structure, which led it to conclude that § 3771(a)(5)'s
a
U.S.C. § 377I(a)(5)." j In re Dean, 527 F.3d at 394. The right to confer and C § 3771(c)'s related notice obligation
apply to the period before a charging instrument is filed. See
facts ofII U In re Dean are instructive too.
United States v. BP Prods. N. Am. Inc., No. H-07.433,
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2008 WL 501321 at •11.15 (S.D. Tex. Feb. 21, 2008). We mak[e] an arrest, interview[ ] a witness, conven[e] a lineup,
should join our Fifth Circuit sister. 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
*1244 F. Majority's Slippery Slopes and Policy attorney pre-charge—we haven't seen reports that federal
Arguments prosecutors in the Southern District of Florida are conferring
with victims before law enforcement conducts a raid or
The Majority invokes a parade of horribles—"a jarring
convenes a lineup, for example. The Majority's misgivings
result"—that it believes would follow if (I) the CVRA
are illusions.
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 G. Limiting Principles in the CVRA
Act's applicability" to post-charge court proceedings. Maj.
Op. at 1211, 1218. The Majority suggests that interpreting Besides lacking empirical plausibility, the Majority's feared
hypotheticals are legally implausible and ignore several
§ 3771(d)(3)'s "no prosecution is underway" clause to
limiting criteria contained in the text of the CVRA itself. In
mean that CVRA rights attach pre-charge would open the
this regard, here are the Majority's stated worries: (I) if a
❑oodgates to victim lawsuits seeking to make prosecutors
victim's rights can attach pre-charge, then there is "no logical
consult with victims before "law-enforcement officers
stopping point" and no "limiting criterion," see Maj. Op. at
conduct a raid, seek a warrant, or conduct an interrogation[.]"
1213, 1220; (2) "there is essentially no limit to the sorts of
Id. at 1213. The Majority also posits that interpreting the
pre-charge relief that an enterprising movant [victim] could
CVRA to grant rights during the "investigation" of a crime
seek—or that an innovative judge might grant," see id at
would "require law-enforcement officers to 'confer' with
1219 n.24; and (3) if crime victims have rights pre-charge,
victims ... before conducting a raid, seeking a warrant, making
then courts would intrude on prosecutorial discretion because:
an arrest, interviewing a witness, convening a lineup, or
"Freed from any line limiting the Act's applicability to the
conducting an interrogation." Id. at 1211.
post-charge phases of a prosecution, *1245 courts would
be empowered to issue injunctions requiring (for instance)
Like all slippery slope arguments, the soundness of the
consultation with victims before raids, warrant applications,
Majority's position depends on "an empirical prediction that
arrests, witness interviews, lineups, and interrogations," see
a proposed rule will increase the likelihood of some other
id. at 1218.
undesired outcome occurring." See f R H ex Tel Hawk v
Easton Area Sch. Dist. 725 F.3d 293, 317 (3d Cir. 2013);
While the Majority scrutinizes the text of ?I § 3771(c)(1)
Frederick Schauer, Slippery Slopes 99 Harv. L. Rev. 361,
381 (1985) ("[A] persuasive slippery slope argument depends and (d)(3) for its limiting principle and finds none for
for its persuasiveness on temporally and spatially contingent subsection (a)(5)'s conferral right, it conspicuously overlooks
empirical facts," and "without empirical evidence" of an the text of the conferral right itself, which contains powerful
underlying reality, "the slippery slope argument has nothing
limiting criteria. First, I § 3771(a)(5)'s conferral right is
on which to stand."). Yet, the Majority offers no empirical
with "the attorney for the Government in the case," not
basis for its slippery slope arguments or its professed need to
with police or investigators. That alone resolves some of the
add, by judicial fiat, a bright-line, post-indictment restriction
Majority's slippery slope concerns because the CVRA does
on the CVRA's plain text.
not give crime victims the right to confer with anyone other
than the government's attorney.
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 Second, and relatedly, as the Majority concedes,? I § 3771(a)
confer with the government's attorney before formal criminal (5)'s conferral right presupposes that a "readily identifiable"
proceedings have commenced. Yet there is no evidence attorney for the government has been assigned to the case.
whatsoever that federal prosecutors in Texas, Louisiana, As even the Majority recognizes, that also means the case has
and Mississippi must confer with crime victims before law- matured beyond the police investigative stage before the right
enforcement officers "conduct[ ] a raid, seek[ ] a warrant, applies.
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Looking beyond the text of C 8§ 3771(a)(5), the conferral
Third, f 1§ 3771(a)(5) grants crime victims the right to right is also subject to the CVRA's express mandate that
confer with the government's attorney, but only to the nothing in the Act "shall be construed to impair the
extent that conferral is "reasonable." The Majority summarily prosecutorial discretion of the Attorney General or any officer
discards this reasonableness limitation as "squishy." Maj.
under his direction." / IR U.S.C. § 3771(dX6). Likewise,
Op. at 1211. Yet, a victim's "reasonable right to confer"
only a *1246 "crime victim" has the conferral right, which
is a forceful limiting principle and embodies a common,
limits the right to a person "directly and proximately harmed
workable legal standard that is sufficient to stave off the
Majority's speculations about "enterprising" crime victims as a result of the commission of a Federal offense." t I Id.
and "innovative" judges. Reasonableness has long stood the § 377I(e). Taken together, these statutory provisions bound
test of time in limiting other actors' conduct. See. e.g., the conferral right, such that the Majority's trepidations are
too far-fetched to justify disregarding the CVRA's plain
j Hardy v Cross 565 U.S. 65, 69-70, 132 S. Ct. 490,
text. The Majority does not cite a single factual incident
493-94, 181 L.Ed.2d 468 (2011) (for purposes of the Sixth
or judicial decision where its apprehensions have become
Amendment's Confrontation Clause, the "lengths to which
reality. Despite its best efforts, the Majority has identified
the prosecution must go to produce a witness" is a "question
no reason to contravene the CVRA's plain text as Congress
of reasonableness"); United States v. Banks, 540 U.S. enacted it.
31, 35.36, 124 S. Ct. 521, 524-25, 157 L.Ed.2d 343 (2003)
(for purposes of the Fourth Amendment, the execution of Because the Majority's blanket restriction denies victims all
conferral rights during the pre-charge period, the Majority
a warrant is subject to a reasonableness standard); Ohio
admits that its rule "will not prevent federal prosecutors from
v. Robinette 519 U.S. 33, 39, 117 S. Ct. 417, 421, 136
negotiating 'secret' plea and non-prosecution agreements"
L.Ed.2d 347 (1996) ("We have long held that the 'touchstone
pre-charge. Maj. Op. at 1221. In light of the public outcry
of the Fourth Amendment is reasonableness."); / Kyles about the Epstein case, the Majority says it "can only hope"
v. Whitley, 514 U.S. 419, 432-33, 115 S. Ct. 1555, 1565, that prosecutors "will not do so." Id. at 1221. Let's distill
131 L.Ed.2d 490 (1995) (under the Due Process Clause and this further. The Majority is more afraid of a future "crime
11 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 victim" potentially asking a "readily identifiable" government
L.Ed.2d 215 (1963), prosecutors must disclose all evidence, "attorney" to confer "reasonably" with her pre-charge, than
upon request, that is favorable to the defense, so long as it is of secret pre-charge plea deals for wealthy defendants,
the evidence is "material," meaning it is reasonably probable even though it's now common practice for them to seek
that the result of the proceeding would have been different the best plea deal in advance of indictment. The Majority's
new blanket restriction eviscerates crime victims' CVRA
had the evidence been disclosed); Doggett v. United rights and makes the Epstein case a poster-child for an
States, 505 U.S. 647, 651, 654, 656, 112 S. Ct. 2686, 2690, entirely different justice system for crime victims of wealthy
2692.93, 120 L.Ed.2d 520 (1992) (in determining whether defendants.
the government violated a defendant's Sixth Amendment
speedy trial right, courts must consider, inter alia, whether Rather than rewriting the CVRA to protect against so-
any delays attributable to the prosecution were reasonable); called "enterprising" victims and "innovative" judges, this
Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S. Ct. Court should: (I) recognize that the CVRA's text already
1874, 1881, 104 L.Ed.2d 459 (1989) (prison regulations contains powerful limiting principles—"a reasonable right
affecting the sending of publications to prisoners must be to confer" only "with the attorney for the Government in
the case," granted only to defined "crime victims" and
analyzed under a reasonableness standard); Strickland v.
without impairment of prosecutorial discretion; (2) enforce
Washington 466 U.S. 668, 688, 104 S. Ct. 2052, 2065,
80 L.Ed.2d 674 (1984) ("The proper measure of attorney the plain text of f I § 3771(a)(5) and I (a)(8) in this
performance" under the Sixth Amendment "remains simply case; (3) hold that the Office's prosecutor in the case had
reasonableness under prevailing professional norms."). 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
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(4) conclude that the Office violated the victims' right to be fact, not even the victims here claim they have any authority
treated fairly by not disclosing the signed NPA before the over a prosecutor's decision as to who to indict or not indict,
State Court hearing and by misrepresenting the case status to or for what crime. The victims' bare-bones claim is only that
the victims. 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
H. Concurring Opinion does not mean the district court can exercise any control over
the prosecutor's ultimate decision whether to indict.
Now, my brief response to my colleague's Concurring
Opinion. His Opinion submits that "the Executive Branch
Here, after drafting a 53-page indictment, the U.S. Attorney's
has exclusive power over prosecutorial decisions" and that
Office spent not hours, but days conferring pm-charge with
"authority obviously includes the decision ... whether to
Epstein's defense team. All the CVRA does is obligate the
seek, or not seek, an indictment from the grand jury," both
prosecutor to give the victims a reasonable opportunity to
propositions with which I wholeheartedly agree. Conc. Op. at
confer with them too. This is no impairment whatsoever on
1221-22.
the prosecutor's authority to decide whether to indict or not.
The CVRA even expressly mandates that nothing in the Act
The Concurring Opinion contends, however, that "the model
"shall be construed to impair the prosecutorial discretion of
the dissent creates"—requiring the U.S. Attorney's Office
the Attorney General or any officer under his direction."
to confer with a victim about a criminal matter prior to
indictment—(1) "raises serious questions about whether, by 18 U.S.C. § 3771(d)(6).
doing so, the judiciary would be violating the constitutional
principle of separation of powers," and (2) "would clearly At oral argument in this appeal, counsel arguing for the
interfere with the Executive Branch's investigative and respondent U.S. Attorney's Office agreed the constitutionality
prosecutorial functions." Id. at 1221, 1222. The Concurring of the CVRA was not being challenged. With all due respect,
Opinion further states: "The notion that a district court this constitutional separation-of-powers concern is a red
could have any input on a U.S. Attorney's investigation herring.
and decision whether to bring a case to the grand jury is
entirely incompatible with the constitutional assignment to Also, the canon of constitutional avoidance does not apply
the Executive Branch of exclusive power over prosecutorial here because the CVRA is plain and unambiguous. See
decisions." *1247 Id. at 1222. The Opinion concludes,
United States v. Stevens 559 U.S. 460, 481, 130 S.
therefore, that "the CVRA is best understood as not applying
Ct 1577, 1591-92, 176 L.Ed.2d 435 (2010) (providing that
until charges are commenced against a defendant" because
courts cannot "rely upon the canon of construction that
"such an interpretation avoids raising serious constitutional
'ambiguous statutory language [should] be construed to
questions." Id. at 1223.
avoid serious constitutional doubts' " unless the statute is
first ambiguous). As the Supreme Court recently explained,
This Concurring Opinion is helpful because it highlights what
"[s]potting a constitutional issue does not give a court the
is and what is not the issue in this appeal. First, nothing in
the CVRA as Congress wrote it permits the district court authority to rewrite a statute as it pleases." It • Jennings v.
to suggest to a U.S. Attorney any investigation or grand Rodriguez, 538 U.S. -, 138 S. Ct. 830, 843-44,
jury steps that he must take. The CVRA requirement is only 200 L.Ed.2d 122 (2018) (declining to apply the canon of
that the prosecutor speak with the victim before making a constitutional avoidance because the statutory language at
final indictment decision. If a U.S. Attorney, after reasonably issue was not ambiguous). Instead, constitutional avoidance
conferring with the victim, decides not to take the case to the serves the "basic democratic function of maintaining a set
grand jury, there will be no CVRA violation for the district of statutes that reflect, rather than distort, the policy choices
court to remedy, and thus no "meddling in the Executive that elected representatives have made." C • OAlmendarez-
Branch's" exclusive powers under the Constitution. See id. at Torres v. United States, 523 U.S. 224, 237-38,118 S. Ct. 1219,
1223. 1277-28, 140 L.Ed.2d 350 (1998). To that end, the Supreme
Court has cautioned that, "rewrit[ing] a law to conform it
Happily enough, my plain reading of the statute in no way to constitutional requirements ... would constitute a serious
injects judicial interference into a prosecutor's decisions. In
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Yet before the District Court ruled on the remedies, Epstein
invasion of the legislative domain." C8 Stevens, 559 U.S. at
died on August 10, 2019. On September 16, 2019, the
481, 130 S. Ct. at 1592.
District Court directed the Clerk to "close the case and all
pending motions are denied as moot." Because the Office
Another observation. The Concurring Opinion insists the
could no longer prosecute the intervenor Epstein, the victims'
problems it identifies would not exist post-charge because,
additional remedy requests—such as rescission of the NPA as
in *1248 that case, the district court would not be
to him—were clearly moot. However, as the victim petitioner
"imposing a condition upon his prosecutorial discretion."
argues before us, this civil case remains live as between the
Conc. Op. at 1222-23. But a government attorney makes all
victims and the Office with respect to the victims' other
sorts of discretionary prosecutorial decisions following an
requested remedies.
indictment, chief among them whether to enter into a plea
agreement with the accused and potentially dismiss some or
Accordingly, I would remand this case to the District Court
all of the charges. Thus, to the extent the Concurring Opinion
to fashion a remedy for the proven CVRA violations.
perceives separation-of-powers issues with a district court
Federal courts have had broad authority to fashion equitable
ordering the government's attorney merely to confer with
remedies after petitioners have proven a violation of statutory
victims about prosecutorial discretionary decisions, it is not
clear why the Majority's post-indictment restriction avoids provisions. It Hardison v. Cohen, 375 F.3d 1262, 1266 (11th
those issues, given the victims can complain about lack of Cir. 2004); Nichols v. Ho per 173 F.3d 820, 824 (11th
conferral following an indictment too.
Cir. 1999); C e Ala. Hosp Ass'n v Beasley, 702 £2d 955,
962 (1I th Cir. 1983) (in light of statutory violation, we
In any event, the Concurring Opinion usefully illustrates the
"accordingly remand to the district court so that it may devise
importance of the CVRA's mandate in § 3771(d)(6)—nothing
an appropriate equitable remedy").
in the Act "shall be construed to impair ... prosecutorial
discretion"—as yet another forceful limiting principle in the
Furthermore, it has long been an "indisputable rule, that
CVRA text that alleviates any need for the Majority to
where there is a legal right, there is also a legal remedy."
transplant its very substantive and temporal restriction on top
Marbury v. Madison, 5 U.S. 1 Cranch 137, 163, 2 L.Ed. 60
of the plain text of § 3771(aX5) and! 1(a)(8).
(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
X. REMEDY invasion, federal courts may use any available remedy to
To remedy the Office's proven CVRA violations, the make good the wrong done." ! 1Franklin v. Gwinnett
Pub. Sch., 503 U.S. 60, 66, 68.69, 112 S. Ct. 1028, 1033-34,
victims proposed the following: (1) an order scheduling
a public hearing in the Southern District of Florida in 117 L.Ed.2d 208 (1992) (rejecting government's *1249
which the victims could participate and present victim-impact argument that courts have abandoned the general rule that
all appropriate relief is available to vindicate a federal right);
statements to the District Court; (2) discovery of records
regarding law-enforcement's investigation of the crimes Bruschi v. Brown, 876 F.2d 1526, 1531 (11th Cir. 1989)
against the victims; (3) discovery ofrecords explicating why (taking "special note" the Supreme Court has made clear that
the U.S. Attorney's Office decided to grant Epstein federal "where federally protected rights have been invaded, it has
immunity; (4) the Department of Justice's designation of a been the rule from the beginning that courts will be alert to
representative to explain the Office's decision to resolve the adjust their remedies so as to grant necessary relief'). 23
Epstein case without any federal prosecution; (5) mandatory
CVRA training for criminal prosecutors in the Office; (6) In closing the case, the District Court did mention that there
a requirement that the Office use its best efforts to provide had been an Epstein-related hearing in New York on August
victims (who request it) accurate and timely notice of future 27, 2019, but that was held after the remedy briefing here
case events regarding Epstein's crimes; and (7) sanctions, was completed. That hearing, scheduled on six days' notice,
attorney's fees, and restitution. 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 findings, about what transpired
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children from sexual exploitation by criminal predators, not
at the New York hearing. The Office's claim on appeal that
the New York hearing was a sufficient remedy for its CVRA re-victimize them. The Majority concludes that our Court is
constrained to leave the victims "emptyhanded," and it is up
violations wholly lacks merit. 24
to Congress to "amend the Act to make its intent clear." Id. at
1205, 1221. Not true. The empty result here is only because
Epstein's death also heightened the need for the District
ow Court refuses to enforce a federal statute as Congress
Court to carefully examine the victims' remedy request for
wrote it. The CVRA is not as impotent as the Majority now
document disclosure. Early on, the District Court denied
rewrites it to be.
certain document requests based on attorney-client privilege.
Subsequently, in the course of the litigation, the U.S.
Given the undisputed facts that the U.S. Attorney's Office
Attorney's Office made numerous representations about its
completed its investigation, drafted a 53-page indictment, and
deliberations, both internally and externally with Epstein's
negotiated for days with Epstein's defense team, the Office
attorneys, including a detailed affidavit from a line prosecutor
egregiously violated federal law and the victims' rights by (1)
purporting to describe those deliberations. Thereafter, the
not conferring one minute with them (or their counsel) before
victims filed motions claiming that the Office had waived,
striking the final NPA deal granting federal immunity to
in whole or in part, the work-product privilege given what
Epstein and his co-conspirators, (2) intentionally and unfairly
the Office itself had now filed and how the Office sought to
concealing the NPA from the victims, as well as how the
defend its conduct in this case. The District Court never made
upcoming State Court plea hearing would directly affect
a waiver ruling, or any document-by-document findings,
them, and (3) affirmatively misrepresenting the status of the
as to this remedy request. If anything, the informational
case to the victims after the NPA was executed. I would
remedies sought by the victims have enhanced importance
remand for the District Court to fashion a remedy.
now. Mysteries still exist about how Epstein and his co-
conspirators escaped federal prosecution for multiple sex-
For all of these reasons, I respectfully dissent from the
trafficking crimes against over 30 minor girls in Florida.25 Majority's (I) 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'
XI. CONCLUSION petition in this case as a matter of law.
While the Majority laments how the national media fell short
on the Jeffrey Epstein story, this case is about how the U.S. All Citations
prosecutors fell short on Epstein's evil crimes. See Maj. Op. at
955 F.3d 1196, 28 Fla. L. Weekly Fed. C 1020
1200. Our criminal *1250 justice system should safeguard
Footnotes
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[edj 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.
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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3 Cf. David Folkenflick, A Dead Cat. A Lawyer's CallAndA5-Figure Donation:How Media FellShort 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-donationhow-media-fell-short-on-epstei.
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.
5 Although the CVRA instructs the court of appeals to "take up and decides' 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).
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
petitioners 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, 128 S.Ct. 2559. 171 L.Ed.2d 399 (2008). This, though, isn't the usual
case. Petitioner didn't file an "appear: 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, 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 revive 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.
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.
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).
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.
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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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 1240-42. The fundamental point is 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.
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 petitioners contention that the "if no prosecution
is underway" language demonstrates that the CVRA applies before the initiation of criminal proceedings. See
infra at 1212-13.
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, 76 S.Ct. 912,
100 L.Ed. 1377 (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 "[ijn
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.
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.
15 Petitioner's counsel has contended that this interpretation of P § 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
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as attempting to broadly cover (perhaps using a belt-and-suspenders approach) all necessary government-
employee participants—in short, to ensure that the Acts protection extends beyond prosecutors.
16 In his article on the subject, petitioners 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 andproximately harmedas 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 at, 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 1220-21.
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 1238 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 1237-39.
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.
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.
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 1242 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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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.
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 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, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) ("gyre 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.").
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 1225. 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.
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 1243 (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,
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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 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, "[alt 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.
26 Accord, e.g., id. at 1226-27 (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 1227-28 ("The prosecutors were prepared to indict Epstein."); id. at 1228 ("[P]rosecutors
were recommending and ready to proceed with the federal indictment of Epstein.'"); id. at 1240 (asserting that
the right to confer attaches lo]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 1246 (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").
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.
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 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.
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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.
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 1247. 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.
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.
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."
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 1198. 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.
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 Komspan & 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.
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."
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,
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Attorney for Jeffrey Epstein. From June 2005 to June 2009, Acosta was the U.S. Attorney for the Southern
District of Florida.
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, 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.
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.
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.
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."
11 In a footnote, the Majority cites to a 2010 opinion by the Justice Department's Office of Legal Counsel ("OLCi.
Maj. Op. at 1213-14 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, 65 L.Ed.2d 532 (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 1200. 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.
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."
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
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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.
16 As noted, the CVRA was enacted to protect crime victim& 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 ? 1(a)
(8) is fitting. See? Yates v. United States 574 U.S. 528, _,135 S. Ct. 1074, 1081-82, 191 L.Ed.2d 64 (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").
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 1212-13. 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 1212. 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, 81 L.Ed.2d 146 (1984).
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 1207.
19 As to the term "case," even the Majority cites Chavez v. Martinez, 538 U.S. 760, 766, 123 S. Ct. 1994,
2000-01, 155 L.Ed.2d 984 (2003), which supports my conclusion that the CVRA's conferral right attaches pre-
charge. See Maj. Op. at 1207. 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.
?a °Chavez 538 U.S. at 766, 123 S. Ct. at 2000-01. But? I:kJ-nig 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. ? OA
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.'
" ? Odz 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, 20 L.Ed. 638 (1872) for 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 1207. But if in ? a ()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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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), htlps://www.uscourts.gov/judicial-business2019-tables.
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 1214-16. 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 "P]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 Bustice] 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 1214-15.
When Congress wants to limit victims-rights protections to only certain stages of a criminal case, it knows
how to do so.
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.
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.
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.
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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