# In re: Courtney Wild

> Court of Appeals for the Eleventh Circuit · April 14, 2020 · 955 F.3d 1196

URL: https://www.frixlaw.com/law-library/cases/4525039

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** April 14, 2020
- **Citations:** 955 F.3d 1196
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-13843
________________________

D.C. Docket No. 9:08-cv-80736-KAM

In re: COURTNEY WILD,

Petitioner.

________________________

On Petition for Writ of Mandamus to the United States District Court for the
Southern District of Florida
________________________

(April 14, 2020)

Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.

NEWSOM, Circuit Judge:

This case, which is before us on a petition for writ of mandamus, arises out

of a civil suit filed under the Crime Victims’ Rights Act of 2004. Petitioner

Courtney Wild is one of more than 30 women—girls, really—who were victimized

by notorious sex trafficker and child abuser Jeffrey Epstein. In her petition, Ms.
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Wild alleges that when federal prosecutors secretly negotiated and entered into a

non-prosecution agreement with Epstein in 2007, they violated her rights under the

CVRA—in particular, her rights to confer with the government’s lawyers and to be

treated fairly by them.

Despite our sympathy for Ms. Wild and others like her, who suffered

unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems,

affirmatively misled—by government lawyers, we find ourselves constrained to

deny her petition. We hold that at least as matters currently stand—which is to say

at least as the CVRA is currently written—rights under the Act do not attach until

criminal proceedings have been initiated against a defendant, either by complaint,

information, or indictment. Because the government never filed charges or

otherwise commenced criminal proceedings against Epstein, the CVRA was never

triggered. It’s not a result we like, but it’s the result we think the law requires.

I

The facts underlying this case, as we understand them, are beyond

scandalous—they tell a tale of national disgrace.

Over the course of eight years, between 1999 and 2007, well-heeled and

well-connected financier Jeffrey Epstein and multiple coconspirators sexually

abused more than 30 minor girls, including our petitioner, in Palm Beach, Florida

and elsewhere in the United States and abroad. Epstein paid his employees to find

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minor girls and deliver them to him—some as young as 14. Once Epstein had the

girls, he either sexually abused them himself, gave them over to be abused by

others, or both. Epstein, in turn, paid bounties to some of his victims to recruit

other girls into his ring.

Following a tip in 2005, the Palm Beach Police Department and the FBI

conducted a two-year investigation of Epstein’s conduct. After developing

substantial incriminating evidence, the FBI referred the matter for prosecution to

the United States Attorney’s Office for the Southern District of Florida. Beginning

in January 2007, and over the course of the ensuing eight months, Epstein’s

defense team engaged in extensive negotiations with federal prosecutors in an

effort to avoid indictment. At the same time, prosecutors were corresponding with

Epstein’s known victims. As early as March 2007, they sent letters advising each

one that “as a victim and/or witness of a federal offense, you have a number of

rights.” The letters, which the government distributed over the course of about six

months, went on to enumerate the eight CVRA rights then in force—including, as

particularly relevant here, “[t]he reasonable right to confer with the attorney for the

[Government] in the case” and “the right to be treated with fairness and with

respect for the victim’s dignity and privacy.”

By May 2007, government lawyers had completed both an 82-page

prosecution memo and a 53-page draft indictment alleging that Epstein had

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committed numerous federal sex crimes. In July, Epstein’s lawyers sent a detailed

letter to prosecutors in an effort to convince them that, in fact, Epstein hadn’t

committed any federal offenses. By September, the sides had exchanged multiple

drafts of what would become an infamous non-prosecution agreement (“NPA”).

Pursuant to their eventual agreement, Epstein would plead guilty in Florida court to

two state prostitution offenses, and, in exchange, he and any coconspirators (at

least four of whom have since been identified) would receive immunity from

federal prosecution. 1 In June 2008, Epstein pleaded guilty to the state crimes as

agreed and was sentenced to 18 months’ imprisonment, 12 months’ home

confinement, and lifetime sex-offender status.

The district court found that “[f]rom the time the FBI began investigating

Epstein until September 24, 2007”—when the government formally executed the

NPA with Epstein—federal prosecutors “never conferred with the victims about

a[n] NPA or told the victims that such agreement was under consideration.” Doe 1

v. United States, 359 F. Supp. 3d 1201, 1208 (S.D. Fla. 2019). Worse, it appears

that prosecutors worked hand-in-hand with Epstein’s lawyers—or at the very least

1
The agreement also contained several provisions concerning Epstein’s victims. The
government, for instance, agreed to provide a list of known victims to Epstein and, “in
consultation with and subject to the good faith approval of Epstein’s counsel,” to “select an
attorney representative” for the victims, to be “paid for by Epstein.” Epstein agreed not to
contest liability or damages in a victim’s civil suit, “so long as the identified individual elect[ed]
to proceed exclusively under 18 U.S.C. § 2255, and agree[d] to waive any other claim for
damages.” An odd set-up—and one that, it seems to us, was likely calculated to quickly and
quietly resolve as many victim suits as possible.

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acceded to their requests—to keep the NPA’s existence and terms hidden from

victims. The NPA itself provided that “[t]he parties anticipate that this agreement

will not be made part of any public record” and, further, that “[i]f the United States

receives a Freedom of Information Act request or any compulsory process

commanding the disclosure of the agreement, it will provide notice to Epstein

before making that disclosure.” Moreover, at approximately the same time that the

sides concluded the NPA, they began negotiating about what prosecutors could

(and couldn’t) tell victims about the agreement. Seemingly in deference to

Epstein’s lawyers’ repeated requests, the government held off—for nearly an entire

year—on notifying Epstein’s victims of the NPA’s existence.

And to be clear, the government’s efforts seem to have graduated from

passive nondisclosure to (or at least close to) active misrepresentation. In January

2008, for example, approximately four months after finalizing and executing the

NPA, the government sent a letter to petitioner stating that Epstein’s case was

“currently under investigation,” explaining that “[t]his can be a lengthy process,”

and “request[ing her] continued patience while [it] conduct[ed] a thorough

investigation.” The government sent an identical letter to another victim in May

2008, some eight months after inking the NPA. 2

2
The government contends that these letters were technically accurate because the already-
signed NPA remained under review by senior members of the Department of Justice. See Br. in
Opp. to Pet. at 4 n.1.

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If secrecy was the goal, it appears to have been achieved—there is no

indication that any of Epstein’s victims were informed about the NPA or his state

charges until after he pleaded guilty. On the day that Epstein entered his guilty

plea in June 2008, some (but by no means all) victims were notified that the federal

investigation of Epstein had concluded. But it wasn’t until July 2008—during the

course of this litigation—that petitioner learned of the NPA’s existence, and until

August 2008 that she finally obtained a copy of the agreement.

We are doubtlessly omitting many of the sad details of this shameful story.

For our purposes, we needn’t discuss the particulars of Epstein’s crimes, or the fact

that the national media essentially ignored for nearly a decade the jailing of a

prominent financier for sex crimes against young girls. 3 Today, the public facts of

the case are well known—Epstein was eventually indicted on federal sex-

trafficking charges in the Southern District of New York, and in August 2019,

while awaiting trial, he was found dead in his jail cell of an apparent suicide.

II

In July 2008, petitioner brought suit in the United States District Court for

the Southern District of Florida, styling her initial filing an “Emergency Victim’s

3
Cf. David Folkenflick, A Dead Cat, A Lawyer’s Call And A 5-Figure Donation: How Media
Fell Short on Epstein, NATIONAL PUBLIC RADIO (Aug. 22, 2019, 6:06 PM),
https://www.npr.org/2019/08/22/753390385/a-dead-cat-a-lawyers-call-and-a-5-figure-donation-
how-media-fell-short-on-epstei.
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Petition for Enforcement of Crime Victim’s Rights Act.” As the district court

explained, “because no criminal case was pending” at the time—no federal charges

having been filed against Epstein or anyone else—petitioner “filed [her] petition as

a new matter . . . which the Clerk of Court docketed as a civil action.” Does v.

United States, 817 F. Supp. 2d 1337, 1341 n.4 (S.D. Fla. 2011). Petitioner alleged

that she was a “crime victim” within the meaning of the CVRA and that by

keeping her in the dark about their dealings with Epstein, federal prosecutors had

violated her rights under the CVRA—in particular, her rights “to confer with the

attorney for the Government in the case,” 18 U.S.C. § 3771(a)(5), and “to be

treated with fairness and with respect for [her] dignity and privacy,” id.

§ 3771(a)(8). 4

Over the course of the ensuing decade, the district court issued a number of

significant rulings. For our purposes, three of the court’s orders are particularly

important.

Initially, in 2011 the district court “addresse[d] the threshold issue whether

the CVRA attaches before the government brings formal charges against the

defendant.” Does, 817 F. Supp. 2d at 1341. The court held that “it does because

the statutory language clearly contemplates pre-charge proceedings.” Id. As

4
A second petitioner joined the suit shortly after it was filed. For simplicity’s sake—and to
avoid confusion—we will refer to “petitioner’s” suit, in the singular.

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relevant here, the district court relied principally on two CVRA provisions in so

holding. First, it pointed to 18 U.S.C. § 3771(c)(1), which the parties here have

called the Act’s “coverage” provision. That subsection—of which much more

later—states that “[o]fficers and employees of the Department of Justice and other

departments and agencies of the United States engaged in the detection,

investigation, or prosecution of crime shall make their best efforts to see that crime

victims are notified of, and accorded, the rights described in subsection (a).” The

district court held that “[s]ubsection (c)(1)’s requirement that officials engaged in

‘detection [or] investigation’ afford victims the rights enumerated in subsection (a)

surely contemplates pre-charge application of the CVRA.” Does, 817 F. Supp. 2d

at 1342. Second, the court pointed to subsection (d)(3), which the parties here call

the “venue” provision and which states that a crime victim seeking to vindicate his

or her rights under the CVRA must file a “motion” either “in the district court in

which a defendant is being prosecuted or, if no prosecution is underway, in the

district court in the district in which the crime occurred.” If, the district court

reasoned, “the CVRA’s rights may be enforced before a prosecution is underway,

then, to avoid a strained reading of the statute, those rights must attach before a

complaint or indictment formally charges the defendant with the crime.” Does,

817 F. Supp. 2d at 1342. Finally, the district court cited In re Dean, in which the

Fifth Circuit had observed that “[a]t least in the posture of th[e] case” before it—

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the court emphasized that it wasn’t “speculat[ing] on the applicability to other

situations”—the victim’s right to confer with prosecutors applied pre-charge. 527

F.3d 391, 394 (5th Cir. 2008). Having “determined . . . as a matter of law [that] the

CVRA can apply before formal charges are filed,” the district court here

“defer[red]” ruling on the question whether federal prosecutors had violated the

Act until the parties could conduct additional discovery. Does, 817 F. Supp. 2d at

1343.

Following another eight years of litigation, the district court issued a pair of

rulings that prompted the mandamus petition now before us. In February 2019, the

court found that the government had infringed petitioner’s CVRA rights. See Doe

1, 359 F. Supp. 3d at 1222. In particular, the court held that federal prosecutors

violated the Act by “enter[ing] into a[n] NPA with Epstein without conferring with

Petitioner[] during its negotiation and signing.” Id. at 1219. “Had the Petitioner[]

been informed about the Government’s intention to forego federal prosecution of

Epstein in deference to him pleading guilty to state charges,” the district court

emphasized, she “could have conferred with the attorney for the Government and

provided input.” Id. at 1218. The court concluded that it was precisely “this type

of communication between prosecutors and victims that was intended by the

passage of the CVRA.” Id. at 1291.

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Having found CVRA violations, the court directed the parties—which by

then included Epstein as an intervenor—to brief “the issue of what remedy, if any,

should be applied.” Id. at 1222. In response, petitioner proposed multiple

remedies: (1) rescission of the NPA; (2) an injunction against further CVRA

violations; (3) an order scheduling a victim-impact hearing and a meeting between

victims and Alexander Acosta, the former United States Attorney for the Southern

District of Florida; (4) discovery of certain grand-jury materials, records regarding

prosecutors’ decision to enter into the NPA, and files concerning law-enforcement

authorities’ investigation of Epstein; (5) mandatory CVRA training for employees

of the Southern District’s United States Attorney’s office; and (6) sanctions,

attorneys’ fees, and restitution. In August 2019, while the court was considering

the parties’ briefing regarding remedies, Epstein died of an apparent suicide; his

death prompted another round of briefing on the issue of mootness.

In September 2019, having considered the parties’ briefing and the impact of

Epstein’s death, the district court dismissed petitioner’s suit, denying each of her

requested remedies. See Doe 1 v. United States, 411 F. Supp. 3d 1321 (S.D. Fla.

2019). In its order, the district court made a number of rulings. First, it held that

Epstein’s death mooted any claim regarding the NPA’s continuing validity, as he

was no longer subject to prosecution. See id. at 1326. Relatedly, the court held

that it lacked jurisdiction to consider petitioner’s claim regarding the validity of the

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NPA as it applied to Epstein’s coconspirators; any opinion regarding that issue, the

court concluded, would be merely advisory because the coconspirators—as non-

parties to the suit—couldn’t be estopped from asserting the NPA’s validity at any

future prosecution. See id. Second, the court denied petitioner’s request for an

injunction on the ground that she had failed to show “continuing, present adverse

effects” or any “real and immediate” threat of future CVRA violations. Id. at

1328. Third, the court rejected petitioner’s requests for a victim-impact hearing

and a meeting with Acosta on the grounds that petitioner had already participated

in an Epstein-related hearing in New York, that the Epstein prosecution had

concluded, and that the government had already agreed to confer with victims

concerning any ongoing investigation of Epstein’s coconspirators. See id. at 1328–

29. Fourth, the court denied petitioner’s discovery requests for grand-jury

materials and investigative files. See id. at 1329–40. Fifth, the court declined to

order “educational remedies,” as the government had already agreed to implement

CVRA training for employees of the Southern District’s United States Attorney’s

office. Id. at 1330. And finally, the court rejected petitioner’s request for

sanctions, fees, and restitution. See id. at 1330–31.

Seeking review of the district court’s order refusing every remedy that she

had sought, petitioner filed—as the CVRA directs—a petition for writ of

mandamus with this Court. See 18 U.S.C. § 3771(d)(3) (stating that “[i]f the

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district court denies the relief sought,” a victim “may petition the court of appeals

for a writ of mandamus”). The government filed a “brief in response” in which it

not only opposed petitioner’s arguments on the merits, but also raised several

threshold arguments concerning the scope of the CVRA and the circumstances in

which rights under the Act are judicially enforceable. In reply, petitioner

contended (among other things) that by failing to “cross appeal,” the government

had waived its arguments about the CVRA’s applicability and enforceability. 5

* * *

This case presents a host of issues, many of first impression. Before

jumping in, we begin with an introductory summary of the CVRA.

III

The CVRA is a compact statute, occupying but one section (and only two

pages) of the United States Code. See 18 U.S.C. § 3771. The entire Act comprises

just six subsections, the pertinent portions of which we will summarize briefly.

The Act opens, in subsection (a), with a catalogue of “rights” that federal

law guarantees to “crime victims.” (The Act separately defines the term “crime

victim” to mean “a person directly and proximately harmed as a result of the

commission of a Federal offense.” Id. § 3771(e)(2)(A).) The version of the CVRA

5
Although the CVRA instructs the court of appeals to “take up and decide” any mandamus
petition “forthwith within 72 hours,” the parties here stipulated to an extended briefing and
decision schedule, which the CVRA authorizes. 18 U.S.C. § 3771(d)(3).

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in effect during the events in question here—between 2006 and 2008—stated as

follows:

(a) Rights of crime victims.—A crime victim has the following
rights:

(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any
public court proceeding, or any parole proceeding, involving the
crime or of any release or escape of the accused.

(3) The right not to be excluded from any such public court
proceeding, unless the court, after receiving clear and convincing
evidence, determines that testimony by the victim would be
materially altered if the victim heard other testimony at that
proceeding.

(4) The right to be reasonably heard at any public proceeding in the
district court involving release, plea, sentencing, or any parole
proceeding.
(5) The reasonable right to confer with the attorney for the
Government in the case.

(6) The right to full and timely restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.

(8) The right to be treated with fairness and with respect for the
victim’s dignity and privacy.

18 U.S.C. § 3771(a).

Subsection (b), titled “Rights afforded,” focuses on courts’ responsibilities

under the Act. It provides—as relevant here—that “[i]n any court proceeding

involving an offense against a crime victim, the court shall ensure that the crime

victim is afforded the rights described in subsection (a).” Id. § 3771(b)(1).

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(Subsection (b)(2) pertains to habeas corpus proceedings, in which crime victims

enjoy a more limited set of rights; it isn’t relevant here.)

Subsection (c), titled “Best efforts to accord rights,” imposes obligations on

non-judicial actors. One of its constituent clauses—which we introduced earlier as

the so-called “coverage” provision—states as follows:

Officers and employees of the Department of Justice and other
departments and agencies of the United States engaged in the
detection, investigation, or prosecution of crime shall make their best
efforts to see that crime victims are notified of, and accorded, the
rights described in subsection (a).
18 U.S.C. § 3771(c)(1).

Subsection (d) addresses “Enforcement and limitations.” Several of

subsection (d)(3)’s provisions are relevant here. One—the “venue” provision—

states that “[t]he rights described in subsection (a) shall be asserted in the district

court in which a defendant is being prosecuted for the crime or, if no prosecution is

underway, in the district court in which the crime occurred.” Another provides that

“[i]f the district court denies the relief sought, the movant may petition the court of

appeals for a writ of mandamus”—and as amended in 2015, and thus before

petitioner sought review here, it goes on to clarify that in deciding any mandamus

petition under the CVRA, “the court of appeals shall apply ordinary standards of

appellate review.” Subsection (d)(6) is also relevant in two respects. First, it states

that “[n]othing in this chapter shall be construed to authorize a cause of action for

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damages.” Second, and separately, it emphasizes that “[n]othing in this chapter

shall be construed to impair the prosecutorial discretion of the Attorney General or

any officer under his direction.”

Finally, subsection (f)—we’ve already introduced subsection (e), which

defines the term “crime victim”—instructs the Attorney General to “promulgate

regulations to enforce the rights of crime victims and to ensure compliance by

responsible officials with the obligations” concerning those victims. Id.

§ 3771(f)(1).

With that primer, we proceed to address petitioner’s case.

IV

Petitioner contends—and as already explained, the undisputed facts show—

that federal prosecutors in the Southern District of Florida negotiated “a secret

non-prosecution agreement” with Epstein, and that “[f]rom the time that the FBI

began investigating Epstein through the consummation of the secret NPA, the

Government never conferred with Epstein’s victims about the NPA [or] even told

them that such an agreement was under consideration.” Petition for Writ of

Mandamus at 4–5. By keeping her (and others) in the dark concerning Epstein’s

NPA, petitioner asserts, the government violated the CVRA.

The unique circumstances of this case—and in particular, the fact that

Epstein was never charged in the Southern District of Florida—tee up what the

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district court correctly called a “threshold” question: Does the CVRA apply in the

period before criminal proceedings are initiated, either by criminal complaint,

information, or indictment? If it does, then we must proceed to consider a cascade

of logically subsequent questions—among them, (1) whether the Act authorized

the district court to rescind the NPA, both generally and, more specifically, as

applied to Epstein’s alleged coconspirators; (2) whether petitioner was entitled to

discovery of certain grand-jury materials, DOJ records pertaining to prosecutors’

decision to enter into the NPA, and FBI files concerning the Epstein investigation;

(3) whether petitioner’s participation in an Epstein-related victim-impact hearing in

New York effectively moots her request for relief here; and (4) whether federal law

entitles petitioner to recover attorneys’ fees. If, by contrast, the CVRA doesn’t

apply before the commencement of criminal proceedings, then our inquiry is at an

end. 6

6
Before considering the merits of the question whether the CVRA applies before the initiation of
criminal proceedings, we must briefly address a front-end procedural issue. Petitioner contends
(Reply in Supp. of Pet. at 11–14) that the government waived any argument that the CVRA
doesn’t apply here when it failed to file a “cross-appeal” from the district court’s 2011 order,
which (as already explained) held “as a matter of law [that] the CVRA can apply before formal
charges are filed.” Does, 817 F. Supp. 2d at 1343. We reject petitioner’s waiver argument. It’s
true that in the usual case, the government’s failure to cross-appeal the district court’s adverse
2011 order might well have precluded our review of that decision. See Greenlaw v. United
States, 554 U.S. 237, 244–45 (2008). This, though, isn’t the usual case. Petitioner didn’t file an
“appeal”; rather, as the CVRA requires, she filed a petition for writ of mandamus. See 18 U.S.C.
§ 3771(d)(3); see also 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 3932 (3d ed. 2019) (explaining that a mandamus petition is “an original application
to the court of appeals”). The question before us, therefore, is not whether to affirm or reverse
the district court’s orders, but rather whether to grant or deny the petition—and, it seems to us,

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Whether the CVRA applies prior to the initiation of criminal proceedings is

not just a threshold question, but also a question of first impression in this Circuit.

The Fifth Circuit has stated—albeit in dictum, without meaningful explanation,

and seemingly without the benefit of adversarial testing—that the Act can apply

before criminal proceedings begin. See In re Dean, 527 F.3d 391, 934 (5th Cir.

2008). The Sixth Circuit has deemed it “uncertain” whether CVRA protections

apply “prior to [the] filing of . . . charges.” In re Acker, 596 F.3d 370, 373 (6th

Cir. 2010). The district courts that have considered the question are divided.

Compare, e.g., United States v. Oakum, No. 3:08CR132, 2009 WL 790042, at *2

(E.D. Va. Mar. 24, 2009) (holding that CVRA rights can attach prior to the

commencement of criminal proceedings), with, e.g., United States v. Daly, No.

3:11CR121 AWT, 2012 WL 315409, at *4 (D. Conn. Feb. 1, 2012) (holding to the

contrary).

As already explained, the district court here concluded that the CVRA can

apply before the initiation of criminal proceedings—“pre-charge,” for short—and,

accordingly, that petitioner enjoyed the protections of the Act during the period

the government is entitled to raise any argument it likes in support of its position that we should
deny. And while the CVRA (as amended in 2015 to resolve a then-existing circuit split) directs
us to “apply ordinary standards of appellate review” in deciding the mandamus petition, see 18
U.S.C. § 3771(d)(3)—rather than the heightened “clear usurpation of power or abuse of
discretion” standard that typically applies in the mandamus context, In re Loudermilch, 158 F.3d
1143, 1145 (11th Cir. 1998)—it does not direct us to employ the rules of procedure that would
apply if this were a typical appeal.

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that preceded the execution of Epstein’s NPA. In particular, petitioner asserts in

these proceedings that the government violated her “reasonable right to confer”

with the lead prosecutor, 18 U.S.C. § 3771(a)(5), and her right “to be treated with

fairness,” id. § 3771(a)(8)—neither of which, she says, is limited by its terms to the

post-charge phase of a criminal prosecution. 7 In support of her position that

CVRA rights can apply before criminal proceedings begin, petitioner points (as did

the district court) to § 3771(c)(1)—which refers to federal-government agencies

engaged in the “detection [and] investigation” of crime, in addition to its

“prosecution”—and to § 3771(d)(3)—which, in specifying the venue where a

victim should seek relief under the Act, refers to the eventuality that “no

prosecution is underway.”

The interpretation of the CVRA that petitioner advances, and that the district

court adopted, is not implausible; the CVRA could be read to apply pre-charge.

We conclude, though—reluctantly, especially given the mistreatment that

petitioner seems to have suffered at the hands of federal prosecutors—that the Act

is neither best nor most naturally read that way. For reasons that we will explain,

we hold that (1) the CVRA’s text and structure, (2) the historical context in which

7
Petitioner also contends (albeit only in passing) that the government violated her right to
“timely notice of any public court proceeding,” 18 U.S.C. § 3771(a)(2), in connection with the
June 30, 2008 state-court hearing at which Epstein pleaded guilty to Florida prostitution
offenses. See Pet. at 54.

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the Act was passed, and (3) the prosecutorial-discretion principles that the Act was

designed to safeguard—and which, we think, petitioner’s interpretation would

compromise—demonstrate that its protections apply only after the initiation of

criminal proceedings. If Congress believes that we have misinterpreted the

CVRA—or, for that matter, even if it believes that we have correctly interpreted

the statute as currently written but that its scope should be expanded—then it

should amend the Act to make its intent clear.

A

In construing the CVRA, “we begin, as we must, with a careful examination

of the statutory text,” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,

1721 (2017), looking “to the particular statutory language at issue, as well as the

language and design of the statute as a whole,” K Mart Corp. v. Cartier, Inc., 486

U.S. 281, 291 (1988). On balance, we conclude that the Act’s terms—including

the provisions on which petitioner relies—demonstrate that its protections apply

only after the commencement of criminal proceedings.

1

We begin where petitioner does, with the catalogue of “rights”—quoted in

full above—that the CVRA guarantees to “crime victims.” (As already noted, the

Act defines the term “crime victim”—more on that later.) Petitioner relies chiefly

on § 3771(a)(5)’s guarantee of a “reasonable right to confer with the attorney for

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the Government in the case,” and § 3771(a)(8)’s guarantee of the “right to be

treated with fairness.” She contends that by failing to inform her—and worse,

affirmatively misleading her—about its ongoing negotiations with Epstein, the

government violated both provisions. We will address subsections (a)(5) and (8) in

due course, but because “[s]tatutory construction . . . is a holistic endeavor,” and

because “[a] provision that may seem ambiguous in isolation is often clarified by

the remainder of the statutory scheme,” United Sav. Ass’n of Tex. v. Timbers of

Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988), we first examine the

balance of § 3771(a). 8

In the main, anyway—and there isn’t any real dispute about this—the

CVRA’s enumeration seems to focus on the post-charge phase of a criminal

prosecution, and in particular on ensuring that crime victims have notice of (and an

opportunity to be heard in) pending criminal proceedings. Indeed, six of the eight

rights listed in § 3771(a)—all except for those specified in subsections (5) and

(8)—either expressly refer to or necessarily presuppose the existence of an ongoing

criminal proceeding. Subsections (a)(2), (3), (4), and (7) leave no doubt

8
Accord, e.g., Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts at 167 (2012) (quoting Sir Edward Coke, The First Part of the Institutes of the Laws of
England, or a Commentary upon Littleton § 728, at 381a (1628; 14th ed. 1791), for the
proposition that “[i]f any section [of a law] be intricate, obscure or doubtful, the proper mode of
discovering its true meaning is by comparing it with the other sections, and finding out the sense
of one clause by the words or obvious intent of the other”).

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whatsoever—all of them apply, by their plain terms, to “proceeding[s],” “public

proceedings,” or “public court proceedings.” Not surprisingly, there seems to be

general agreement that these “proceeding”-focused rights apply only after the

filing of a complaint or criminal charges. See Reply in Supp. of Pet. at 17; Paul G.

Cassell, et al., Crime Victims’ Rights During Criminal Investigations? Applying

the Crime Victims’ Rights Act Before Criminal Charges Are Filed, 104 J. of Crim.

L. and Criminology 59, 71 (2014).

Subsections (a)(1) and (6) aren’t quite as clear, but they too are best

understood as specifying rights that attach only after criminal proceedings have

begun. Subsection (1) guarantees a crime victim’s right to protection from “the

accused.” § 3771(a)(1). Both in ordinary spoken English and as a legal term of

art, the word “accused” refers to someone against whom criminal proceedings have

been commenced. See, e.g., Webster’s New International Dictionary 17 (2d ed.

1944) (defining “accused” as “one charged with an offense; the defendant in a

criminal case”); see also Michigan v. Jackson, 475 U.S. 625, 632 (1986) (“[A]fter

a formal accusation has been made . . . a person who had previously been just a

‘suspect’ has become an ‘accused’ within the meaning of the Sixth

Amendment . . . .”). Subsection (a)(6), which guarantees a victim’s right to “full

and timely restitution,” likewise presupposes the initiation—and indeed perhaps

the maturation or even conclusion—of criminal proceedings. Black’s, for instance,

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defines the term “restitution,” in relevant part, to mean “[c]ompensation for loss;

esp., full or partial compensation paid by a criminal to a victim, not awarded in a

civil trial for tort, but ordered as part of a criminal sentence or as a condition of

probation.” Black’s Law Dictionary 1507 (10th ed. 2014).

So, it seems to us, the rights enumerated in subsections (a)(1), (2), (3), (4),

(6), and (7) are properly understood as applying only after the initiation of criminal

proceedings. And again, petitioner doesn’t really contend otherwise. Instead, she

focuses on subsections (a)(5) and (8), which she says are framed broadly enough

that they can be understood to apply pre-charge. Let’s take a closer look.

Subsection (a)(5) guarantees a crime victim the “reasonable right to confer

with the attorney for the Government in the case.” Petitioner and her lead counsel

(in his academic writings) emphasize that this provision refers to the attorney

handling “the case” rather than “the charges,” Reply in Supp. of Pet. at 17, and

they assert that the term “case” can “refer both to a judicial case before a court and

an investigative case pursued by a law enforcement officer,” Cassell et al., supra,

at 72 (emphasis added). 9 Although it’s true, at least in the abstract, that the term

9
Ordinarily, of course, we don’t impute a lawyer’s out-of-court positions to his client—and we
needn’t do so even in this case. We cite Professor Cassell’s article here (and elsewhere) for
several reasons: (1) because he is not only petitioner’s counsel but also one of the nation’s
foremost authorities on victims’-rights issues in general and the CVRA in particular; (2) because
the article is wholly consistent with petitioner’s position as articulated in her brief and at oral
argument; and (3) because it expands on and deepens petitioner’s in-court arguments and thus
ensures that we are considering the strongest version of her position.
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“case” can mean either thing, in legal parlance the judicial-case connotation is

undoubtedly primary. See, e.g., Black’s, supra, at 258–59 (defining “case” first as

“[a] civil or criminal proceeding, action, suit or controversy at law or in equity”

and only second as “[a] criminal investigation”); Webster’s New International,

supra, at 415 (defining “case” as used in “[l]aw” as “a suit or action in law or

equity; a cause”). Moreover, and in any event, two contextual considerations

convince us that, as used in subsection (a)(5), the term “case” refers to an ongoing

judicial proceeding, not a law-enforcement investigation.

First, the Supreme Court has held that in the criminal context, a “case” does

not “encompass the entire criminal investigatory process,” but rather “at the very

least requires the initiation of legal proceedings.” Chavez v. Martinez, 538 U.S.

760, 766 (2003). Notably, in so holding, the Court drew on longstanding tradition,

citing its now nearly 150-year-old decision in Blyew v. United States for the

proposition that the word “case” is synonymous with the word “cause” and

“mean[s] a proceeding in court, a suit, or action.” 80 U.S. (13 Wall.) 581, 595

(1872). Second, and separately, subsection (a)(5) refers not just to “the case” in

general, but more particularly to “the attorney for the Government in the case.”

While it is undoubtedly true that government lawyers may be involved in a

criminal investigation pre-charge, the provision’s reference to a single, specific

individual—“the attorney for the Government”—indicates that the conferral right

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attaches only after proceedings have begun, at which point that particular person

will presumably be more readily identifiable. Cf. Rumsfeld v. Padilla, 542 U.S.

426, 434–35 (2004) (holding that the “use of the definite article . . . indicates that

there is generally only one” person covered). By the same token, there will surely

be many criminal investigations to which no lawyers have (yet) been assigned—let

alone a single, identifiable “attorney for the Government.” Accordingly, if, as

petitioner asserts, subsection (a)(5) was intended to apply pre-charge, during the

investigation phase, it makes little sense that Congress would have tethered the

conferral right to a single government lawyer.

On balance, therefore—and particularly in the light of subsections (a)(1),

(2), (3), (4), (6), and (7), all of which clearly apply only after the initiation of

criminal proceedings—we conclude that § 3771(a)(5)’s conferral right does not

attach during the pre-charge, investigatory phase. Rather, subsection (a)(5) is best

understood as guaranteeing a crime victim’s right to consult with the lead

prosecutor—i.e., “the attorney for the Government”—in a pending prosecution—

i.e., “the case.”10

10
See generally Wayne R. LaFave et al., Criminal Procedure § 13.1, at 849 (6th ed. 2017)
(“Under the federal victims’ rights statute [i.e., 18 U.S.C. § 3771], a crime victim is granted a
‘reasonable right to confer with the attorney for the Government in the case,’ but it is nowhere
specified that the conference must precede or concern the prosecutor’s charging decision . . . .”).

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Petitioner also relies (albeit more obliquely) on subsection (a)(8), which

vaguely guarantees a crime victim’s right “to be treated with fairness and with

respect for [his or her] dignity and privacy.” It is certainly true that this fair-

treatment right has no inherent temporal limitation—on its face, it could apply pre-

charge, post-charge, or for that matter even post-conviction. But well-established

canons of interpretation require us to interpret subsection (a)(8)’s general right to

fair treatment by reference to the subsections (and their constituent rights) that

precede it. See, e.g., Johnson v. United States, 559 U.S. 133, 139 (2010)

(“Ultimately, context determines meaning . . . .”); Gutierrez v. Ada, 528 U.S. 250,

255 (2000) (“[W]ords and people are known by their companions.”). Because the

rights enumerated in subsections (a)(1)–(7) are best understood as applying only

after the institution of criminal proceedings, subsection (a)(8)’s guarantee of

“fairness” is, too. What the Supreme Court said recently in applying noscitur a

sociis—“the well-worn Latin phrase that tells us that statutory words are often

known by the company they keep”—applies here as well: In § 3771(a), “we

find . . . both the presence of company that suggests limitation and the absence of

company that suggests breadth.” Lagos v. United States, 138 S. Ct. 1684, 1688–89

(2018).11

11
In spending pages dissecting our citations to cases applying the noscitur a sociis canon, the
dissent misses the forest for the trees. See Dissenting Op. at 98–100. The fundamental point is

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Taken as a whole, then, we conclude that the catalogue of rights specified in

§ 3771(a) are best read as applying only after the institution of criminal

proceedings.

2

We are fortified in that conclusion by the only two provisions of the Act that

speak directly to judicial enforcement of victims’ statutory rights.

The first is § 3771(b), titled “Rights afforded.” At oral argument,

petitioner’s counsel invoked subsection (b)(1) affirmatively, noting—with

emphasis—its directive that “the court shall ensure that the crime victim is

afforded the rights” enumerated in subsection (a). See Oral Arg. at 5:45–5:57.

True, but that’s only part of the story. In its entirety, subsection (b)(1) reads as

follows: “In any court proceeding involving an offense against a crime victim, the

court shall ensure that the crime victim is afforded the rights described in

subsection (a).” 18 U.S.C. § 3771(b)(1) (emphasis added). By its plain terms,

then, subsection (b)(1) empowers courts to enforce CVRA rights only during

pending criminal proceedings—of which there were none here.

simply that subsection (a)(8)’s meaning should be informed by its surrounding statutory context,
and that because subsections (a)(1)–(7) are most properly read to apply only after the
commencement of criminal proceedings, it makes sense—absent some contrary indication—to
interpret subsection (a)(8)’s vague fair-treatment provision the same way.
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The second is § 3771(d), which specifies—and strictly circumscribes—the

procedural mechanisms by which an alleged victim must assert and seek to enforce

CVRA rights. Two (related) points are worth making. As an initial matter, the Act

clearly indicates that Congress did not intend to authorize private individuals to

initiate stand-alone suits or actions, outside the confines of existing criminal

proceedings, to enforce their statutory rights. Quite the contrary, in fact—

subsection (d)(6), titled “No Cause of Action,” expressly states that “[n]othing in

this chapter shall be construed to authorize a cause of action for damages.”

§ 3771(d)(6)). Cf. Alexander v. Sandoval, 532 U.S. 275, 286 (2001) (explaining

that “[l]ike substantive federal law itself, private rights of action to enforce federal

law must be created by Congress”).

Instead—and this is point two—subsection (d)(3) specifies that a victim

must assert his or her rights in a “motion for relief” filed in district court and

requires the court to consider and decide that “motion” promptly. 18 U.S.C.

§ 3771(d)(3). As commonly understood, a “motion” is a request filed within the

context of an ongoing judicial proceeding, not a vehicle for launching a new and

freestanding piece of litigation. 12 See, e.g., Black’s, supra, at 1168 (“‘Frequently,

12
As already explained, subsection (d)(3) states that “[t]he rights described in subsection (a)
shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if
no prosecution is underway, in the district court in which the crime occurred.” We address
below petitioner’s contention that the “if no prosecution is underway” language demonstrates
that the CVRA applies before the initiation of criminal proceedings. See infra at 33–36.

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in the progress of litigation, it is desired to have the court take some action which

is incidental to the main proceeding . . . . Such action is invoked by an application

usually less formal than the pleadings, and is called a motion.’” (quoting John C.

Townes, Studies in American Elementary Law 621 (1911)); cf. Fed. R. Civ. P. 3, 7

(distinguishing between a “motion” and a “pleading”—the latter of which is

defined to include a “complaint,” which is the prescribed vehicle for commencing

a freestanding action). 13

The facts that the CVRA (1) does not sanction freestanding suits and (2)

does prescribe mid-proceeding “motion[s]” combine—especially in conjunction

13
A third aspect of § 3771(d)(3) likewise counsels—albeit perhaps a bit more indirectly—in
favor of the conclusion that CVRA rights are intended to apply, and be enforced, only within the
context of an ongoing criminal prosecution. As already explained, under subsection (d)(3), a
crime victim’s sole recourse to this Court is via petition for writ of mandamus. See 18 U.S.C.
§ 3771(d)(3) (“If the district court denies the relief sought, the movant may petition the court of
appeals for a writ of mandamus.”). Although a petition for mandamus is “an original application
to the court of appeals,” the writ “is not an independent grant of appellate jurisdiction” but,
rather, “‘may go only in aid of appellate jurisdiction’ that exists on some other basis.” 16 Wright
& Miller, supra, § 3932 (quoting Parr v. United States, 351 U.S. 513, 520 (1956)). The
“minimum condition” for mandamus relief, therefore, is “that the case be one that may lie within
the prospective future jurisdiction of the court of appeals, or that has in fact come within its
jurisdiction in the past.” Id. When CVRA rights are asserted in the context of a criminal
proceeding, our mandamus jurisdiction is clear, because our appellate jurisdiction over the
underlying criminal proceeding (and any rulings, verdicts, and judgments rendered therein) is
clear. And the CVRA itself provides that “[i]n any appeal in a criminal case, the Government
may assert as error the district court’s denial of any crime victim’s right in the proceeding to
which the appeal relates.” 18 U.S.C. § 3771(d)(4). By contrast, in the absence of a criminal
prosecution, mandamus jurisdiction in this Court is less certain—harder to justify—simply
because it’s less certain how the case could otherwise arrive, in the form of an appeal, on our
doorstep.

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with subsection (a)’s enumeration—to indicate that the Act’s protections apply

only after the initiation of criminal proceedings. 14

3

In fairness, petitioner is not without her own textual arguments. In urging us

to hold that CVRA rights—or at least some of them—apply even before the

initiation of criminal proceedings, she relies principally on two subsections, which

the parties call the “coverage” and “venue” provisions, respectively. Neither, we

conclude, clearly demonstrates that the rights specified in the Act attach during the

pre-charge, investigative phase.

Petitioner first points to § 3771(c)(1)—the “coverage” provision—which, as

already explained, states that “[o]fficers and employees of the Department of

Justice and other departments and agencies of the United States engaged in the

detection, investigation, or prosecution of crime shall make their best efforts to see

that crime victims are notified of, and accorded, the rights described in subsection

14
It is also relevant, we think—even if more marginally so—that the drafters and ratifiers of the
Federal Rules seem to have anticipated that CVRA “motions” would be filed within the context
of an existing criminal proceeding—not as freestanding actions. The Federal Rules of Criminal
Procedure, which “govern the procedure in all criminal proceedings” in United States courts, see
Fed. R. Crim. P. 1(a)(1), expressly incorporate portions of the CVRA. In particular, Rule 60—
titled “Victim’s Rights”—implements several of the rights specified in § 3771(a), and further
(echoing § 3771(d)(3)) clarifies that “[a] victim’s rights described in these rules must be asserted
in the district where a defendant is being prosecuted for the crime.” Fed. R. Crim. P. 60(b)(4).
The Federal Rules of Civil Procedure, which “govern the procedure in all civil actions and
proceedings in the United States district courts,” see Fed. R. Civ. P. 1, contain no similar
provision, and make no reference to the CVRA.

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(a).” 18 U.S.C. § 3771(c)(1). From the premise that “the CVRA applies to the

‘detection [or] investigation’ of crimes,” petitioner reasons to the conclusion,

which the district court adopted, that “the Act’s drafters ‘surely contemplate[d]

pre-charge application of the CVRA.’” Reply in Supp. of Pet. at 15 (quoting Does,

817 F. Supp. 2d at 1342). We disagree for two reasons.

First, understood in proper context, it seems clear to us that subsection (c)(1)

is a “to whom” provision, not a “when” provision. That is, it clarifies that CVRA

obligations extend beyond the officers and employees of “the Department of

Justice” to include, as well, the officers and employees of “other departments and

agencies of the United States” that (like DOJ) are “engaged in the detection,

investigation, or prosecution of crime”—e.g., IRS, ICE, and TSA. Those agencies’

employees, like DOJ’s, must “make their best efforts to see that crime victims” are

afforded CVRA rights. Subsection (c)(1) doesn’t expressly speak to when CVRA

rights attach, and it certainly doesn’t clearly demonstrate that those rights attach

before the initiation of criminal proceedings. Government employees (whether of

DOJ or some other DOJ-like agency) who are involved in all three of the

referenced phases are necessarily involved post-charge. Subsection (c)(1) simply

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makes clear that the Act reaches beyond prosecutors (and DOJ) to reach other

actors in the criminal-justice system.15

Second, and more importantly, petitioner’s reliance on § 3771(c)(1) proves

entirely too much. If, as petitioner thinks subsection (c)(1) shows, CVRA rights

apply during the “detection” and “investigation” of crime, then there is no

meaningful basis—at least no meaningful textual basis—for limiting the Act’s pre-

charge application to the NPA context. To the contrary, on petitioner’s reading,

subsection (c)(1) would—to cite just a few examples—require law-enforcement

officers to “confer” with victims, subject only to a squishy “reasonable[ness]”

limitation, see § 3771(a)(5), before conducting a raid, seeking a warrant, making

an arrest, interviewing a witness, convening a lineup, or conducting an

interrogation. Absent a much clearer indication, we cannot assume that Congress

intended such a jarring result. Presumably sensing the slipperiness of their

position, petitioner and her counsel have said that courts can simply draw the line

15
Petitioner’s counsel has contended that this interpretation of § 3771(c)(1) can’t explain “why
Congress found it necessary to break out three separate phases of the criminal justice process: the
‘detection,’ ‘investigation,’ and ‘prosecution’ of crime.” Cassell et al., supra, at 87. If, he
argues, Congress’s “intent was simply to cover, for example, FBI agents or EPA agents during
the post-charging phase of a case, it could have simply omitted” the words “detection” and
“investigation” from the Act, because those agents “would be engaged in the ‘prosecution’ of the
case when assisting the victim after the filing of formal charges.” Id. Thus, he says, our
interpretation impermissibly renders the terms “detection” and “investigation” meaningless. Id.
We don’t think so. We read subsection (c)(1) not as “break[ing] out” three different phases, but
rather as attempting to broadly cover (perhaps using a belt-and-suspenders approach) all
necessary government-employee participants—in short, to ensure that the Act’s protection
extends beyond prosecutors.

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farther downstream—when, for instance, as counsel put it at oral argument, an

investigation has “matured” to the point where (as here) prosecutors “are

negotiating with defense attorneys and signing agreements.” Oral Arg. at 8:30,

9:10–9:17. “At that point at least,” counsel said, “a conferral right exists” under

subsection (a)(5). Id. at 9:10–9:17. That is a line, to be sure—and a line that

happens to capture this case—but it has no footing whatsoever in the “detection

[or] investigation” language to which petitioner points in support of her position. 16

As tempting as it might be to do so—especially on the facts before us here—we

cannot re-write, or arbitrarily circumscribe, the Act’s text simply to make it fit

petitioner’s theory.17

For these reasons, we cannot accept petitioner’s contention that § 3771(c)(1)

demonstrates that the CVRA applies before the initiation of criminal proceedings.

16
In his article on the subject, petitioner’s lead counsel offered a similar limiting construction,
which he framed this way:
CVRA rights attach when an officer or employee of the Department of Justice or
any other department or agency of the United States engaged in the detection,
investigation, or prosecution of crime has substantial evidence that an identifiable
person has been directly and proximately harmed as a result of the commission of
a federal offense . . . and in the judgment of the officer or employee, that person is
a putative victim of that offense.
Cassell et al., supra, at 92 (emphasis added). Professor Cassell’s proposal reads like a finely-
tuned statutory provision—but one that, unfortunately, Congress never enacted.
17
For reasons we will explain, the dissent’s interpretation—so far as we can discern it—suffers
from the same flaw. See infra at 51–52.
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Petitioner is on slightly stronger footing, we think, in pointing to the

CVRA’s “venue” provision, § 3771(d)(3). In relevant part, that provision states

that “[t]he rights described in subsection (a) shall be asserted in the district court in

which a defendant is being prosecuted for the crime or, if no prosecution is

underway, in the district court in which the crime occurred.” Petitioner contends—

and the district court agreed—that the “no prosecution is underway” clause must

mean that CVRA rights “‘may be enforced before a prosecution is underway’” and,

accordingly, that “‘those rights must attach before a complaint or indictment

formally charges the defendant with the crime.’” Reply in Supp. of Pet. at 15

(quoting Does, 817 F. Supp. 2d at 1342). Petitioner’s interpretation of subsection

(d)(3) is not implausible—that provision could be read to mean that CVRA rights

attach before the commencement of criminal proceedings. But it isn’t necessary,

either, and in light of the remainder of the Act’s text—and the practical

implications of petitioner’s construction, the details of which we explore below—

we are reluctant to adopt it, or at least to invest it with the significance that

petitioner does.

There are, we think, at least two alternative ways of understanding

§ 3771(d)(3). First, and perhaps most obviously, it could be read to apply to the

period of time between the initiation of criminal proceedings—which may occur as

early as the filing of a criminal complaint under Federal Rule of Criminal

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Procedure 3—and the levying of formal charges in an indictment. 18 The word

“prosecution”—on which subsection (d)(3) pivots—is a legal term of art; in

relevant part, it refers to “[t]he institution and continuance of a criminal suit [and]

the process of exhibiting formal charges against an offender before a legal tribunal,

and pursuing them to final judgment on behalf of the state or government, as by

indictment or information.” Webster’s New International, supra, at 1987.

Moreover, the law is clear, at least for Sixth Amendment right-to-counsel

purposes, that a “prosecution” does not begin with the criminal complaint’s filing.

See United States v. Alvarado, 440 F.3d 191, 199–200 (4th Cir. 2006) (“The filing

of a federal criminal complaint does not commence a formal prosecution.”); see

also, e.g., United States v. States, 652 F.3d 734, 741–42 (7th Cir. 2011) (same);

United States v. Boskic, 545 F.3d 69, 82–84 (1st Cir. 2008) (same). Rather, the

Sixth Amendment right does not attach—because a “prosecution” does not

begin—until, at the earliest, a suspect’s “initial appearance before a judicial

officer.” Rothgery v. Gillsespie County, Tex., 554 U.S. 191, 199 (2008). All of

which is to say that even if petitioner and the district court were correct that the

“no prosecution is underway” clause meant that CVRA rights apply “before”

18
Presumably because it finds this the more difficult of the two interpretations of subsection
(d)(3) to deal with, the dissent labels it our “alternative[]” position and relegates its response to a
footnote—notwithstanding that we introduce it as the “[f]irst, and perhaps most obvious[]”
reading. See Dissenting Op. at 92 n.17. By contrast, the dissent goes on for pages challenging
what we offer (next page) as an “alternative[]” interpretation, (mis)stating our position as being
that “this venue provision is about ‘post-judgment’ matters.” Id. at 91–93.
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formal charges are filed, they may yet be incorrect that those rights should be

understood to attach during a pre-complaint investigation. Subsection (d)(3) can

be read sensibly enough to apply (and to give victims the right, for example, to

“confer” with prosecutors, § 3771(a)(5)) between the filing of the criminal

complaint and the suspect’s initial appearance before a judge—and thus, for

instance, to express their views to prosecutors about whether the defendant should

be granted pretrial release. See Fed. R. Crim. P. 5(d)(1)(C) (noting that pretrial-

release decisions are made at the “initial appearance”).

Alternatively, subsection (d)(3) could be interpreted to refer to the period

after a “prosecution” has run its course and resulted in a final judgment of

conviction. Petitioner and the district court read the “no prosecution is underway”

clause to say, in effect, “no prosecution is [yet] underway”—thereby necessarily

pointing to the period “before” (their word) the prosecution’s commencement. But

subsection (d)(3)’s is temporally agnostic—on its face, it could just as easily mean

that “no prosecution is [still] underway.” Cf. Underway, Oxford English

Dictionary, https://oed.com/view/Entry/212225?rskey=hlolT7&result=1#eid (last

visited April 13, 2020) (defining “underway” as it pertains to “a process, project,

[or] activity” to mean “set in progress; in the course of happening or being carried

out”). No one doubts, for instance, that a victim could file a post-judgment motion

alleging that the government violated her rights during the course of the

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prosecution and asking the court, say, to “re-open a plea or sentence.” 18 U.S.C.

§ 3771(d)(5).19

Moreover, petitioner’s broad reading of § 3771(d)(3) suffers from the same

slippery-slope problems that plague her reading of § 3771(c)(1). To say, as the

petitioner does—and as the district court did—that subsection (d)(3) indicates that

CVRA “rights must attach before a complaint or indictment formally charges the

defendant with the crime,’” Reply in Supp. of Pet. at 15 (quoting Does, 817 F.

Supp. 2d at 1342), tells us nothing about how long “before.” Again, must

prosecutors consult with victims before law-enforcement officers conduct a raid,

seek a warrant, or conduct an interrogation? That seems exceedingly unlikely. As

we’ve explained, petitioner understandably wants to craft a rule that will cover this

case without opening the floodgates to those possibilities—seemingly by reference

to some sort of once-the-investigation-has-matured criterion. That criterion,

though, has no basis in the CVRA’s text. Petitioner’s reading of subsection

(d)(3)’s “no prosecution is underway” clause—like her reading of subsection

(c)(1)’s “detection [or] investigation” clause—provides no logical stopping point.

* * *

19
We concede that this reading isn’t perfectly seamless, in that it would require the victim to file
her post-judgment motion “in the district in which the crime occurred” rather than, as one might
expect, in the district in which the prosecution occurred and the conviction was entered.

36
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For all these reasons, we conclude that the CVRA’s text is best read as

applying only after the commencement of criminal proceedings, whether by

complaint, information, or indictment.20

B

The historical context in which the CVRA was enacted confirms what the

Act’s text indicates—namely, that it was not meant to apply prior to the institution

of criminal proceedings. Congress enacted the CVRA against the backdrop of

another victims’-rights statute, the Victims’ Rights and Restitution Act of 1990.

The CVRA repealed and replaced some parts of the VRRA, but left others intact.

20
Although a marginal consideration, we also note that our interpretation is consistent with that
offered by the Department of Justice, both in its implementing regulations and in an explanatory
memorandum authored by the Office of Legal Counsel.
First, as already noted, in the CVRA’s concluding subsection Congress directed DOJ to
“promulgate regulations to enforce the rights of crime victims and to ensure compliance by
responsible officials with the obligations described in law respecting crime victims.” 18 U.S.C.
§ 3771(f)(1). DOJ did so, and those regulations are codified at 28 C.F.R. § 45.10. Although the
regulations don’t expressly address the question whether CVRA rights apply before the
commencement of criminal proceedings, or instead only afterward, they do, on balance, seem to
assume the latter interpretation. The provision specifying the information that an alleged victim
must include in her administrative complaint, for instance, states that the document “shall
contain,” among other information, “[t]he district court case number” and “[t]he name of the
defendant in the case.” Id. § 45.10(c)(2)(iii)–(iv). Needless to say, both items indicate (even if
indirectly) DOJ’s considered view that the Act’s provisions apply only once a criminal case is
pending.
Second, in December 2010, DOJ’s Office of Legal Counsel issued a formal 16-page
opinion—titled “The Availability of Crime Victims’ Rights Under the Crime Victims’ Right Act
of 2004”—in which it concluded, following an exhaustive analysis, that CVRA rights do not
apply before the commencement of criminal proceedings. See The Availability of Crime
Victims’ Rights Under the Crime Victims’ Rights Act of 2004, 35 Op. O.L.C. 1 (Dec. 17, 2010).
OLC’s 2010 opinion reinforced and formalized an earlier 2005 determination that had likewise
concluded, “preliminar[ily],” that “the rights guaranteed by the CVRA [are] limited in their
applicability to pending criminal proceedings.” Id. at 1.

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Notably, the “Services to victims” section of the VRRA, which the CVRA

preserved, includes provisions that, by their express terms, plainly apply before

criminal proceedings begin. 21

That section opens with a phrase that the CVRA repeats—noting that it

applies to government agencies “engaged in the detection, investigation, or

prosecution of crime.” 34 U.S.C. § 20141(a). Unlike the CVRA, though, the

VRRA directs the head of each such agency to designate individuals who will be

responsible for identifying victims and for performing certain victim-related

services “at each stage of a criminal case.” Id. The VRRA goes on state that “[a]t

the earliest opportunity after the detection of a crime at which it may be done

without interfering with an investigation, a responsible official shall . . . identify

the victim or victims of a crime [and] inform the victims of their right to receive,

on request, [certain enumerated] services.” Id. § 20141(b). By referring to the

period immediately following “the detection of a crime” and to the existence of an

ongoing “investigation”—with which the responsible official should be careful not

to “interfer[e]”—the VRRA clearly extends victim-notice rights into the pre-charge

phase.

21
In a legislative-history-laden footnote, the dissent accuses us of “fail[ing] to recognize the
CVRA repealed significant parts of the VRRA.” Dissenting Op. at 101 n.21. As the paragraph
to which this note is appended demonstrates, that is incorrect. The point—which we explain in
text and to which the dissent offers no response—is that the portions of the VRRA that the CVRA
left in place contain provisions that explicitly apply pre-charge, and that if Congress had
intended the CVRA to have the same reach, it could (and should) have said so.
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The VRRA is similarly explicit when describing the sorts of “services” to

which victims are entitled. Following subsection (a)’s direction, subsection (c)

marches—methodically, and roughly chronologically—through the various

“stage[s]” of a crime’s commission, detection, investigation, and prosecution.

Subsection (c)(1) states, for instance, that “the responsible official shall”—

presumably immediately in the aftermath of a crime’s commission, and thus by

definition before any charges are filed—inform the victim where she can “receive

emergency medical and social services.” Id. § 20141(c)(1)(A). Subsection (c)(2)

then provides that the responsible official shall ensure that the victim receives

“reasonable protection from a suspected offender”—notably, not “the accused,” as

in the CVRA, but “a suspected offender.” Id. § 20141(c)(2). Continuing,

subsection (c)(3) states that the official shall provide the victim “the earliest

possible notice” of, among other things, and under appropriate circumstances, “the

status of the investigation of the crime” and “the arrest of the suspected

offender”—both of which, obviously, refer to pre-charge events. Id.

§ 20141(c)(3)(A)–(B). It is not until subsection (c)(3)(C)—which refers to “the

filing of charges against a suspected offender”—that the VRRA’s focus

conspicuously shifts to rights pertaining to “charges,” “trial[s],” “hearing[s],” and

“proceedings.” See id. § 20141(c)(3)(C)–(c)(5).

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The VRRA’s provisions—about which Congress indisputably knew when it

framed and enacted the CVRA—demonstrate that when Congress wants to extend

victims-rights protections pre-charge, it knows how to do so, and does so

expressly. The fact that the CVRA contains no similar language counts heavily

against petitioner’s interpretation under what we have called an entire “family” of

interpretive canons. See Freemanville Water Sys., Inc. v. Poarch Band of Creek

Indians, 563 F.3d 1205, 1209 (11th Cir. 2009) (citing the interrelated principles,

for instance, that “where Congress knows how to say something but chooses not to,

its silence is controlling,” and that “when Congress uses different language in

similar sections, it intends different meanings” (citations omitted)). 22

* * *

Together, these textual and contextual considerations lead us to conclude

that, on balance, the CVRA is best interpreted to apply only after the

commencement of criminal proceedings. Although not precisely on point, we find

resonance in much of what the Supreme Court recently said in Lagos v. United

22
One might reasonably ask why petitioner here didn’t proceed under the VRRA, some of whose
provisions (unlike, we conclude, the CVRA’s) clearly apply before the initiation of criminal
proceedings—and which, therefore, the government here may well have violated. The answer,
in short, is that the VRRA provides no mechanism for judicial enforcement whatsoever—not
even the limited “motion”-based remedy that the CVRA authorizes. See 34 U.S.C. § 20141(d)
(“This section does not create a cause of action or defense in favor of any person arising out of
the failure of a responsible person to provide information as required . . . .”). So, while (on our
reading, anyway) the rights available under the VRRA are more broadly applicable than those
under the CVRA, they are not judicially enforceable—and thus, as we will explain shortly, don’t
give rise to the practical concerns that a pre-charge application of CVRA rights would.

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States, 138 S. Ct. 1684 (2018), which concerned another federal victims’-rights

statute, the Mandatory Victims Restitution Act. In particular, the Court there

addressed a portion of that statute requiring reimbursement of expenses that a

crime victim “incurred during participation in the investigation or prosecution of

the offense or attendance at proceedings related to the offense.” 18 U.S.C.

§ 3663A(b)(4). The question before the Court was whether that provision should

be interpreted narrowly, to require reimbursement only of those expenses that a

victim incurred during a government “investigation” and criminal “proceedings,”

or more broadly, to include expenses incurred during any “investigation” and any

case-related “proceedings.” Lagos, 138 S. Ct. at 1688.

The Court unanimously adopted the narrower reading. In doing so, the

Court readily acknowledged that there were “contrary arguments . . . favoring a

broad interpretation”—in particular, that the more limited reading “will sometimes

leave a victim without a restitution remedy sufficient to cover” some offense-

related expenses and thereby contravene the Act’s “broad purpose.” Id. at 1689.

The Court further conceded that while it thought the statute’s “individual words

suggest[ed]” a more “limited interpretation,” they “d[id] not demand” it. Id. at

1688. Even so, the Court held that, understood in context—for instance, the fact

that the terms “investigation” and “proceedings” were both linked to the word

“prosecution”—the more limited reading was preferable from a textual and

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structural standpoint. The Court also emphasized that “Congress ha[d] enacted

many different restitution statutes with differing language, governing different

circumstances,” and that while some of them contained provisions specifically

requiring “full” restitution, the Mandatory Victims Restitution Act “contain[ed] no

such language.” Id. at 1689–90.

The Court concluded its interpretive analysis this way: “[G]iven th[e]

differences between the Mandatory Victims Restitution Act and other restitution

statutes, we conclude that the considerations we have mentioned, particularly those

based on a reading of the statute as a whole, tip the balance in favor of our more

limited interpretation.” Id. at 1690. Just so here. In light of CVRA’s text’s

overarching focus on the period following the initiation of criminal proceedings,

and the obvious differences between the CVRA and the VRRA—which by its

terms plainly reaches into the pre-charge phase—we too conclude that the

interpretive balance tips in favor of a more limited reading.

C

There is a final consideration here, and it is to our minds a weighty one. The

CVRA’s final substantive provision—which Congress slotted in just before

statutory definitions and a closing directive to the Attorney General to promulgate

implementing regulations—states that “[n]othing in this chapter [i.e., the entirety

of the Act] shall be construed to impair the prosecutorial discretion of the Attorney

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General or any officer under his direction.” 18 U.S.C. § 3771(d)(6). For reasons

we will explain, we conclude that petitioner’s “constru[ction]” of the Act—as

applying before the initiation of criminal proceedings—would indeed “impair . . .

prosecutorial discretion.”

Broadly defined, the term “prosecutorial discretion” refers to the soup-to-

nuts entirety of “[a] prosecutor’s power to choose from the options available in a

criminal case, such as filing charges, prosecuting, not prosecuting, plea-bargaining,

and recommending a sentence to the court.” Black’s, supra, at 565. The core of

prosecutorial discretion, though—its essence—is the decision whether or not to

charge an individual with a criminal offense in the first place. The Supreme Court

has repeatedly reaffirmed the principle—which dates back centuries—that “the

Executive Branch has exclusive authority and absolute discretion to decide

whether to prosecute a case.” United States v. Nixon, 418 U.S. 683, 693 (1974)

(citing Confiscation Cases, 74 U.S. (7 Wall.) 454 (1869)). 23

23
This prosecutorial discretion “flows not from a desire to give carte blanche to law enforcement
officials but from recognition of the constitutional principle of separation of powers.” United
States v. Ream, 491 F.2d 1243, 1246 n.2 (5th Cir. 1974). As we said in Ream—

The discretionary power of the attorney for the United States in determining
whether a prosecution shall be commenced or maintained may well depend upon
matters of policy wholly apart from any question of probable cause. Although as
a member of the bar, the attorney for the United States is an officer of the court,
he is nevertheless an executive official of the Government, and it is as an officer
of the executive department that he exercises a discretion as to whether or not
there shall be a prosecution in a particular case. It follows, as an incident of the
constitutional separation of powers, that the courts are not to interfere with the

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We believe that petitioner’s interpretation of the CVRA risks

“impair[ing] . . . prosecutorial discretion” in at least two fundamental ways. As an

initial matter, consider that the very first determination that a court must make

when asked to enforce the CVRA is whether the party seeking the Act’s benefit is

a “crime victim.” The reason is because the CVRA’s opening provision makes

clear that the Act’s protections—the rights enumerated therein, already discussed

at some length—are available only to “crime victim[s].” 18 U.S.C. § 3771(a) (“A

crime victim has the following rights . . . .”). Notably for our purposes, the CVRA

statutorily defines the term “crime victim” to mean “a person directly and

proximately harmed as a result of the commission of a Federal offense.” Id.

§ 3771(e)(2).

Accordingly, any movant asserting rights under the CVRA must, at the very

outset, demonstrate to the district court that he or she is a “crime victim” entitled to

statutory protection. And, given the statutory definition’s terms, in order to

determine whether the movant has made the requisite showing, the court must

decide whether a “Federal offense” has occurred. When a prosecutor has already

free exercise of the discretionary powers of the attorneys of the United States in
their control over criminal prosecutions.

Id. (quoting United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965)); accord, e.g., Heckler v.
Chaney, 470 U.S. 821, 832 (1985) (“[T]he decision of a prosecutor in the Executive Branch not
to indict . . . has long been regarded as the special province of the Executive Branch, inasmuch as
it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully
executed.’”).
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commenced criminal proceedings against an identifiable individual for a specific

crime, he or she has made at least a presumptive determination that the individual

has in fact committed a “Federal offense.” So, as applied post-charge—in the

context of ongoing criminal proceedings—the “crime victim” determination is

straightforward: An individual who has been “directly and proximately harmed” as

a result of the conduct charged by the government is entitled to CVRA protection.

Not so before the commencement of criminal proceedings. In that

circumstance, if a movant were to assert CVRA rights as a “crime victim,” the

court would first have to determine—but this time without any initial

determination by the government in the form of a charging decision and, indeed,

presumably while the government’s investigation is ongoing—whether or not a

“Federal offense” has been committed. That scenario—which is a necessary

consequence of petitioner’s interpretation—presents at least three intractable

problems.

First, and most obviously, petitioner’s reading puts the cart before the horse:

When else, if ever, is a court called on to decide whether an “offense” (i.e., a

crime) has occurred—as opposed to a moral wrong more generally—before the

government has even decided to press charges? The answer, so far as we are

aware, is never. Second, how, in the absence of a charging decision, would the

court even go about ascertaining whether an “offense” had occurred? What would

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that proceeding look like? A mini- (or perhaps a not-so-mini-) trial in which the

court finds facts and makes legal determinations regarding an “offense” yet to be

named? Finally, and in any event, it seems obvious to us that simply by

conducting such a proceeding and by concluding (up front) that an “offense” has—

or has not—occurred, the court would not only exert enormous pressure on the

government’s charging decisions, but also likely impair the government’s ongoing

investigation. The “impair[ment]” of prosecutorial discretion, we think, would be

palpable.

Separately, even if the threshold “crime victim” barrier could be overcome,

the enforcement of CVRA rights in the pre-charge phase would risk unduly

impairing prosecutorial discretion. Consider, as a general matter, how CVRA

enforcement occurs. If, for instance, an individual claiming to be a covered victim

believes—as did petitioner here—that the government hasn’t “confer[red]” with

her in the manner prescribed by § 3771(a)(5) or “treated [her] with fairness” as

required by § 3771(a)(8), then she will—as did petitioner here—ask a district court

to “order” prosecutors to confer and to treat her “fair[ly].” See Emergency Pet. at

2. Even in the post-charge phase, those are pretty extraordinary requests. It is no

small thing to ask a judge to issue an injunction ordering the government’s lawyers

(presumably on pain of contempt) to conduct their prosecution of a particular

matter in a particular manner. But at least after the commencement of criminal

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proceedings—and accordingly after the government has submitted itself and its

case to the district court’s jurisdiction and supervision—the CVRA explicitly

authorizes the court’s intervention. Congress made a clear determination that the

intrusion was necessary and appropriate.

Before the commencement of criminal proceedings, though, the intrusion

would be significantly greater, both quantitatively and qualitatively. As a

quantitative matter, petitioner’s interpretation—pursuant to which the CVRA’s

protections would extend into the “detection” and “investigation” phases—risks

greatly multiplying the sheer number of opportunities for judicial intervention in

law-enforcement and prosecutorial affairs. Freed from any line limiting the Act’s

applicability to the post-charge phases of a prosecution, courts would be

empowered to issue injunctions requiring (for instance) consultation with victims

before raids, warrant applications, arrests, witness interviews, lineups, and

interrogations. That would work an extraordinary expansion of an already-

extraordinary statute.

The intrusion occasioned by a pre-charge interpretation of the CVRA would

also be qualitatively different. The commencement of criminal proceedings marks

a sensible boundary on the prosecutorial-discretion spectrum. As already

explained, before charges are filed—when the government is still in the process of

investigating and deciding “whether to prosecute”—its authority and discretion are

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understood to “exclusive” and “absolute.” Nixon, 418 U.S. at 693. By contrast,

once the charging decision is made, the prosecutor steps into the court’s

jurisdiction—its “house,” to speak—and thus necessarily cedes some of her control

of the course and management of the case. From that point forward, the court will

“assume a more active role in administering adjudication of a defendant’s guilt and

determining the appropriate sentence.” United States v. Fokker Servs. B.V., 818

F.3d 733, 737 (D.C. Cir. 2016). Interpreting the CVRA to apply post-charge—as

its terms plainly permit—thus squares with the background expectation of judicial

involvement. Interpreting the Act to apply pre-charge, by contrast, contravenes the

background expectation of executive exclusivity. 24

* * *

For reasons we have explained, we conclude that the CVRA is best

understood—in accordance with its terms and the context in which it was

24
For at least two reasons, it is no answer to say, as the district court did, that the CVRA would
entitle movants only to a “voice” in a prosecutor’s pre-charge decisionmaking process, not a
“veto” over the decisions themselves—or, as the dissent does, that “nothing in the CVRA
empowers crime victims to force a prosecutor to prosecute.” Dissenting Op. at 63. First, giving
movants even a guaranteed right under § 3771(a)(5) to “confer” with government actors before
detection- and investigation-phase activities like raids, warrant applications, and interrogations
could severely impact law-enforcement and prosecutorial decisionmaking. Second, there is
essentially no limit to the sorts of pre-charge relief that an enterprising movant could seek—or
that an innovative judge might grant—under § 3771(a)(8)’s fair-treatment provision. While
perhaps not likely, it is not outside the realm of possibility that an alleged victim might argue—
or that a district court might conclude—that the only “fair” thing to do in a particular
circumstance would be to require the government to indict a suspect, or to charge him in a
particular manner.

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enacted—to apply only after the initiation of criminal proceedings. To the extent

the Act’s language and structure leave any doubt about its proper scope, we must

assume that Congress “acted against the backdrop of long-settled understandings

about the independence of the Executive with regard to charging decisions.”

Fokker Servs., 818 F.3d at 738. Had Congress intended to upend (rather than

reinforce) those “long-settled understandings,” we can only assume it would have

expressed itself more clearly. See, e.g., Puerto Rico v. Franklin California Tax-

Free Trust, 136 S. Ct. 1938, 1947 (2016) (“Congress ‘does not, one might say,

hide elephants in mouseholes.’” (quoting Whitman v. American Trucking Assns.,

Inc., 531 U.S. 457, 468 (2001))).25

25
The dissent relies heavily on the Fifth Circuit’s decision in In re Dean, 527 F.3d 391 (5th Cir.
2008), which it says “held” that “[t]here are clearly rights under the CVRA that apply before any
prosecution is underway.” Dissenting Op. at 103 (quoting Dean, 527 F.3d at 394). To the extent
that Dean is properly read to “h[o]ld” that CVRA rights apply before the commencement of
criminal proceedings—which we doubt, for reasons we will explain—we disagree with and
decline to follow it. In that case, following an explosion at an oil refinery that killed 15 people
and injured more than 170, the Department of Justice considered prosecuting the owner. Before
bringing any charges, though, prosecutors filed an ex parte motion in the district court (1)
alerting the court that a plea agreement was forthcoming and (2) asking the court’s permission to
delay notifying known victims until after the agreement was executed, for fear that pre-plea
notification would be impracticable and could jeopardize the plea-negotiation process. The
district court agreed, the plea agreement was signed, and the victims were notified thereafter.
Several victims subsequently moved to appear and urged the district court to reject the plea
agreement on the ground that, by maintaining secrecy, prosecutors (and the court) had violated
their CVRA-based “reasonable right to confer with the attorney for the Government.” 18 U.S.C.
§ 3771(a)(5). When the district court refused to reject the plea agreement, the victims sought
mandamus relief from the court of appeals.
Although the Fifth Circuit ultimately declined to issue the writ, it observed—in what,
given its ultimate disposition, was technically dictum—that the district court had violated the
CVRA by acceding to the government’s request that victims not be notified in advance of the
plea deal. In so doing, it noted the district court’s “acknowledg[ment]” that “[t]here are clearly

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V

For the foregoing reasons, we hold that the CVRA does not apply before the

commencement of criminal proceedings—and thus, on the facts of this case, does

not provide the petitioner here any judicially enforceable rights.

Having so held, two final words.

First, regarding the dissent: Although we have endeavored along the way to

meet a few of the dissent’s specific critiques, we must offer here two more global

responses. As an initial matter, with respect to the dissent’s charge (Dissenting

Op. at 65) that we have “dresse[d] up” what it calls a “flawed statutory analysis”

with “rhetorical flourish”—well, readers can judge for themselves whose rhetoric

is in fact more florid. See, e.g., id. at 61 (“So how does the Majority bail the U.S.

Attorney’s Office out of its egregious CVRA violations . . . ?”); id. at 94 (“So how

rights under the CVRA that apply before any prosecution is underway.” 527 F.3d at 394.
“Logically,” the court of appeals said, “this includes the CVRA’s establishment of victims’
‘reasonable right to confer with the attorney for the Government.’” Id. (quoting 18 U.S.C.
§ 3771(a)(5)). Thus, the Fifth Circuit noted, “[a]t least in the posture of this case (and we do not
speculate on the applicability to other situations), the government should have fashioned a
reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the
victims’ views on the possible details of a plea bargain.” Id.
We decline to follow Dean’s dictum for several reasons. First, the Dean briefing reveals
that the parties there didn’t even dispute whether the CVRA applies before the commencement
of criminal proceedings; accordingly, the question that this case so clearly tees up was never
subjected to adversarial testing. Second, and perhaps relatedly, the Fifth Circuit’s three-sentence
discussion—which does little more than echo the district court’s own “acknowledg[ment]”—is
devoid of any analysis of the CVRA’s text, history, or structural underpinnings. Finally, even
read for all it might be worth, the Fifth Circuit’s observation that the CVRA applied pre-charge
in the circumstances before the court there was—for reasons we have explained at length and in
detail, and with all due respect—simply incorrect.

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in the holy name of plain text . . . ?”); id. (“The Majority hacks away at the plain

text with four tools.”); id. (“The Majority cherry picks the meaning of

‘case’ . . . .”); id. at 96 (“Nonsense.”); id. at 98 (“As its third tool to axe the plain

text . . . .”); id. (“Do not fall for this.”); id. 106 (accusing us of ruling “by judicial

fiat”); id. at 109–10 (twice accusing us of fearing crime victims more than

“wealthy defendants”).

More substantively, it remains unclear to us exactly how the dissent thinks

the CVRA should be interpreted and applied. It’s obvious that our dissenting

colleague doesn’t particularly like our reading—namely, that CVRA rights don’t

attach before the initiation of criminal proceedings. (Which is fine—as we’ve

already confessed, we don’t particularly like it either.) But she offers no

intelligible alternative of her own. At times, the dissent suggests—broadly, but

without elaboration—that the Act should be construed to apply “pre-charge.” See

Dissenting Op. at 67, 90, 95 n.19, 96–97, 104, 106, 109, 112. That reading (while

we think wrong) at least has the benefit of coherence and clarity. But the dissent

(we think wisely) doesn’t seem eager to defend so sweeping an interpretation,

presumably because it has no logical stopping point. Instead, the dissent hints—

although again, without any real explanation—that CVRA rights should be

understood to apply only (or at least?) “once the criminal case has matured to plea

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negotiations.” Id. at 96.26 Where, though—or as our dissenting colleague would

say, where “in the holy name of plain text”—does that limiting criterion come

from? As best we can tell, it is devised specifically to capture this case without

risking a landslide. For reasons we have explained in detail, we believe that the

CVRA is most properly (if imperfectly) read to apply only after the

commencement of criminal proceedings. One thing of which we are certain: That

interpretation is far superior to the dissent’s good-for-this-train-only, once-the-

investigation-has-matured reading—which, so far as we can tell, has no

meaningful footing in the Act’s text, history, or structure.

Second, and far more importantly, regarding the consequences of our

interpretation: It isn’t lost on us that our decision leaves petitioner and others like

her largely emptyhanded, and we sincerely regret that. Under our reading, the

CVRA will not prevent federal prosecutors from negotiating “secret” plea and non-

prosecution agreements, without ever notifying or conferring with victims,

provided that they do so before instituting criminal proceedings. We can only

26
Accord, e.g., id. at 66–67 (insisting that “[t]his case is not about the start or middle stages of a
criminal investigation” but, rather, “a completed investigation” and prosecutors’ preliminary
“deci[sion] to proceed with an indictment”); id. at 69 (“The prosecutors were prepared to indict
Epstein.”); id. at 70 (“[P]rosecutors were recommending and ready to proceed with the federal
indictment of Epstein.”); id. at 97 (asserting that the right to confer attaches “[o]nce an
investigation is completed, the case has matured to the indictment-drafting stage and pre-charge
plea negotiations with defense counsel have begun”); id. at 111 (contending that prosecutors had
an obligation to confer here “given the investigation was completed, the 53-page indictment was
drafted, and the prosecutor[s were] already conducting pre-charge plea negotiations with
Epstein’s defense team”).
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hope that in light of the protections provided by other statutes—and even more so

in the wake of the public outcry over federal prosecutors’ handling of the Epstein

case—they will not do so.

The question before us, though, isn’t whether prosecutors should have

consulted with petitioner (and other victims) before negotiating and executing

Epstein’s NPA. It seems obvious to us—and, indeed, the government has

expressly conceded—that they should have. Our sole charge is to determine, on

the facts before us, whether the CVRA obligated prosecutors to do so. We simply

cannot say that it did.

PETITION DENIED.

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TJOFLAT, Circuit Judge, concurring:

I concur without reservation in Judge Newsom’s opinion for the Court. I

write separately because the model the dissent creates, in which a victim is

permitted to sue the United States Attorney 1 for refusing to confer about a criminal

matter prior to indictment, would, in operation, result in Judicial Branch

interference with the Executive Branch’s function of investigating and prosecuting

federal crimes. Such a model raises serious questions about whether, by doing so,

the judiciary would be violating the constitutional principle of separation of

powers.2

There can be no doubt that the Executive Branch has exclusive power over

prosecutorial decisions. See United States v. Nixon, 418 U.S. 683, 693, 94 S. Ct.

3090, 3100 (1974) (“[T]he Executive Branch has exclusive authority and absolute

discretion to decide whether to prosecute a case . . . .”); Confiscation Cases, 74

U.S. 454, 457 (1868) (“Public prosecutions, until they come before the court to

which they are returnable, are within the exclusive direction of the district

attorney . . . .”); Heckler v. Chaney, 470 U.S. 821, 832, 105 S. Ct. 1649, 1656

1
I refer to the U.S. Attorney here and throughout this opinion for ease of analysis. Of
course, in the typical case, the victim would sue the specific attorney in charge of the criminal
investigation.
2
This case presents an atypical CVRA scenario. In the ensuing discussion, I explain how
the dissent’s interpretation of the statute would likely be applied in a typical case, in which the
U.S. Attorney’s Office is considering whether to impanel a grand jury to hear evidence
indicating that an individual may have committed a criminal offense against another individual
and caused the latter to suffer an injury.
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(1985) (“[T]he decision of a prosecutor in the Executive Branch not to indict . . .

has long been regarded as [within] the special province of the Executive Branch,

inasmuch as it is the Executive who is charged by the Constitution to ‘take Care

that the Laws be faithfully executed.’” (quoting U.S. Const., Art. II, § 3)). This

Executive Branch authority obviously includes the decision to investigate

suspected criminal activity and whether to seek, or not seek, an indictment from

the grand jury. These pre-charge decisions are the focus of this case.

The dissent interprets the CVRA as authorizing a victim to bring a U.S.

Attorney to court for refusing to confer with her about a matter under criminal

investigation. To illustrate what would likely occur if we permitted the victim to

do that—i.e., to envision how the dissent’s interpretation of the CVRA would

operate in practice—consider a simple case of mail fraud.

Jane Doe is the victim of a fraudulent scheme. She finds out that the U.S.

Attorney’s Office is investigating the scheme and wants to discuss it with the

attorney handling the investigation. The attorney refuses her request, so she sues

him. Applying the dissent’s interpretation, the district court finds that the attorney

violated the CVRA by failing to confer with the victim. The court issues an

injunction requiring the attorney to confer with Doe and to treat her fairly.3 Even

3
Another problem with the dissent’s interpretation is that such an injunction could not be
crafted in compliance with Rule 65 of the Federal Rules of Civil Procedure. Under that rule, the

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if the court could craft such an injunction to comply with Rule 65 of the Federal

Rules of Civil Procedure, which I doubt, the court would then be continually

involved in the criminal investigation from the moment it issued the injunction. At

any moment during the inevitable twists and turns of a pre-indictment criminal

investigation, the victim could allege that the attorney had violated the injunction,

and the attorney would be back in front of the district court to show cause why he

should not be held in contempt. 4 But the event most likely to trigger such a

hearing is the attorney’s decision not to take the case to the grand jury, and that

decision is completely within the Executive Branch’s prosecutorial discretion.

Therefore, applying the dissent’s interpretation of the CVRA would clearly

interfere with the Executive Branch’s investigative and prosecutorial functions.

order must be “specific” and “describe in reasonable detail . . . the act . . . required.” Fed. R.
Civ. P. 65(d)(1)(b)–(c). These requirements serve three purposes.
First, they provide notice to the enjoined party of precisely what it must do to avoid being
held in contempt—the party cannot be left guessing. Second, a specific and reasonably detailed
order is easy to enforce, while a vague order is not. Third, an injunction that does not meet these
requirements breeds disrespect for the courts and the rule of law.
In cases like this one, an injunction requiring the attorney to confer with the victim and
treat her fairly could not meet Rule 65’s requirements. In my hypothetical, “conferral” and
“fairness” likely would mean different things to the attorney and Doe, meaning the parties would
be left guessing about what the injunction required. Therefore, such an injunction would not
comply with Rule 65. To make matters worse, failure to comply with Rule 65 would exacerbate
the problem discussed below—specifically, excessive judicial interference with an ongoing
investigation—because the district court would frequently need to oversee disputes about
whether the attorney’s handling of the investigation was violating the inherently vague
injunction.
4
Moreover, and perhaps worst of all, there is nothing stopping a victim from challenging
the attorney’s decisions at multiple steps along the way. Once the district court is involved, a
victim could allege that the attorney did not confer with her, or did not treat her fairly, whenever
he makes each new investigatory or prosecutorial decision.
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Having explored the consequences of the dissent’s interpretation of the

CVRA, it is clear that such an interpretation cannot be accepted. The notion that a

district court could have any input on a U.S. Attorney’s investigation and decision

whether to bring a case to the grand jury is entirely incompatible with the

constitutional assignment to the Executive Branch of exclusive power over

prosecutorial decisions. Additionally, it is hard to imagine a bigger intrusion on

executive autonomy than the possibility that a U.S. Attorney will be held in

contempt for violating an injunction if her investigation is not handled as the

victim and district court see fit. Therefore, the dissent’s interpretation raises

serious constitutional issues by concluding that there are no temporal limitations on

the CVRA rights to confer with, and to be treated fairly by, the U.S. Attorney. 5

In contrast, under Judge Newsom’s interpretation, this problem does not

exist because the CVRA only gives victim’s post-charge rights. And, post-charge,

the district court is not dragging the U.S. Attorney into court against his will and

5
The dissenting opinion asserts that it “in no way injects judicial interference into a
prosecutor’s decisions” because “[t]he fact that a prosecutor must confer with a victim pre-
charge does not mean the district court can exercise any control over the prosecutor’s ultimate
decision whether to indict.” Dis. Op. at 113. But this is clearly wrong based on the facts of this
case—prosecutors chose to enter an NPA with Epstein, and the victim wants the Court to undo
that agreement. My dissenting colleague would likely argue that, because the U.S. Attorney
could re-enter an NPA with Epstein’s co-conspirators after conferring with victims, forcing the
U.S. Attorney to confer would not invade the executive’s prosecutorial discretion. This riposte
overlooks the reality that exclusive discretion does not come with caveats. In other words,
imposing the dissent’s conditions that the executive must satisfy before it can exercise its
prosecutorial discretion means that it does not truly have exclusive discretion.
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imposing a condition upon his prosecutorial discretion—the attorney is voluntarily

before the court, and it is appropriate for the court, in its active role in the criminal

proceedings, to examine the attorney’s failure to comply with his CVRA

obligations. In such circumstances, there is no concern about the separation of

powers because the court is not meddling in the Executive Branch’s decisions until

executive officers have chosen to present themselves to the court.

In sum, the dissent’s interpretation creates serious constitutional concerns

that Judge Newsom’s interpretation does not. And it is “settled policy” that, when

confronted with two potential interpretations of a statute, we should avoid the

interpretation that “engenders constitutional issues if a reasonable alternative

interpretation poses no constitutional question.” See Gomez v. United States, 490

U.S. 858, 864, 109 S. Ct. 2237, 2241 (1989). Therefore, Judge Newsom’s

interpretation should be adopted. This conclusion is bolstered by the language of

the statute, itself, which explicitly states that none of the CVRA’s provisions

should be read to diminish prosecutorial discretion: “Nothing in this chapter shall

be construed to impair the prosecutorial discretion of the Attorney General or any

officer under his direction.” 18 U.S.C. § 3771(d)(6). Clearly, the author of the

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statute—Congress—recognized the need to avoid any construction that results in

the problem that the dissent’s approach creates. 6

For all of the reasons set forth in Judge Newsom’s opinion, and because

such an interpretation avoids raising serious constitutional questions, the CVRA is

best understood as not applying until charges are commenced against a defendant.

6
Putting aside the separation of powers problem, under the dissent’s approach, the
judiciary, based on Congressional authority in the form of a statute, appears to be putting its
thumb on the scale against the individuals being investigated by law enforcement. In a sense, the
judiciary is telling the executive that it had better indict its suspects or potentially face a CVRA
action. But the only time that it is appropriate for the judiciary to do so, based on Congressional
authority, is during criminal sentencing, where sufficient due process safeguards are in place to
protect the accused’s constitutional rights. Because such safeguards are obviously not in place
pre-charge, this effect of the dissent’s interpretation is another reason not to adopt it.
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HULL, Circuit Judge, dissenting:

This appeal presents legal questions of first impression in this Circuit

regarding the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. § 3771, which

grants a statutory “bill of rights” to crime victims. In my view, the Majority

patently errs in holding, as a matter of law, that the crime victims of Jeffrey

Epstein and his co-conspirators had no statutory rights whatsoever under the

CVRA. Instead, our Court should enforce the plain and unambiguous text of the

CVRA and hold that the victims had two CVRA rights—the right to confer with

the government’s attorney and the right to be treated fairly—that were repeatedly

violated by the U.S. Attorney’s Office in the Southern District of Florida. 1

Here, the U.S. Attorney’s Office (1) drafted a 53-page indictment against

sex trafficker and child abuser Epstein and (2) repeatedly wrote his defense team

that the government had proof beyond a reasonable doubt that he victimized more

than 30 women as minors. Shockingly though, the Office then (1) conducted many

days of extensive plea negotiations with Epstein’s attorneys and secretly entered

into a Non-Prosecution Agreement (“NPA”), granting Epstein federal immunity in

return for his plea to two state prostitution-solicitation charges, (2) never conferred

one minute with the victims about the NPA or told the victims that such an

1
Federal prosecutors located in the U.S. Attorney’s Offices in both West Palm Beach and
Miami handled Epstein’s case. I will refer to those offices collectively as “the U.S. Attorney’s
Office” or “the Office.”
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agreement was under consideration, (3) worked closely with Epstein’s lawyers to

keep the NPA’s existence and terms hidden from the victims, (4) actively

misrepresented to the victims that the criminal investigation continued when the

NPA was already signed, and (5) never informed the victims about the NPA until

after Epstein pled guilty in State Court and the secret sweetheart deal was done.

Remarkably too, without notice and conferral with the victims, the NPA

granted federal immunity not only to Epstein, but also to “any potential co-

conspirator of Epstein, including but not limited to Sarah Kellen, Adriana Ross,

Lesley Groff, or Nadia Marcinkova.” It is only because the victims filed this

lawsuit, and the District Court ordered the NPA be produced, that the victims and

the public learned the truth about the plea negotiations and the NPA’s grant of

federal immunity to Epstein and his co-conspirators.

So how does the Majority bail the U.S. Attorney’s Office out of its egregious

CVRA violations and reverse the District Court’s ruling? The Majority holds that

Epstein’s crime victims had no CVRA rights at all because the plea negotiations

with Epstein’s defense counsel were conducted “pre-charge” and the Office never

filed the indictment and commenced court proceedings. That is to say, the

Majority crafts a bright-line, blanket restriction on the statute: the CVRA grants

crime victims no rights whatsoever unless and until a formal indictment is filed in

a court. See Maj. Op. at 2.

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The Majority concludes “the CVRA was never triggered” at all, even though

the U.S. Attorney’s Office prepared a 53-page indictment against Epstein but later

secretly entered into a plea deal, granting federal immunity to Epstein and his co-

conspirators. Id. According to the Majority, because the Office cleverly entered

into a sweetheart plea deal with Epstein “pre-charge” and never filed the

indictment, the victims never had any CVRA rights in the first place. Id. at 2, 18-

19.2

I dissent because the plain and unambiguous text of the CVRA does not

include this post-indictment temporal restriction that the Majority adds to the

statute. Although, as I discuss later, the two rights provisions at issue include other

limiting principles, there is no textual basis for the bright-line, post-indictment only

restriction the Majority adds to the statute. Rather, the Majority’s contorted

statutory interpretation materially revises the statute’s plain text and guts victims’

rights under the CVRA. Nothing, and I mean nothing, in the CVRA’s plain text

requires the Majority’s result.

See for yourself. The CVRA grants “crime victims” these two unambiguous

rights in subsection (a):

2
The Majority holds that “the rights under the Act do not attach until criminal
proceedings have been initiated against a defendant, either by complaint, information, or
indictment.” See Maj. Op. at 2. But for ease of reference in my dissent, I collectively refer to
the initiation of criminal proceedings as by “filing an indictment” because most prosecutions
begin that way. In contrast, a “complaint” can initiate only misdemeanor prosecutions and an
“information” can initiate felony charges only if the defendant waives grand jury presentment.
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(a) Rights of crime victims.—A crime victim has the following rights:
....
(5) The reasonable right to confer with the attorney for the Government
in the case.
....
(8) The right to be treated with fairness and with respect for the victim’s
dignity and privacy.

18 U.S.C. § 3771(a)(5), (8). The text does not contain the Majority’s post-

indictment temporal restriction. Simply put, crime victims do not have to wait for

the government to file a formal indictment and commence court proceedings

before having these CVRA rights.

In fact, the CVRA’s venue provision in § 3771(d) expressly provides that,

“if no prosecution is underway,” the victims can file suit to assert their

subsection (a) rights “in the district court in the district in which the crime

occurred.” Id. § 3771(d)(1), (3). In filing this lawsuit back in 2008, the petitioner

crime victims did what the CVRA expressly authorized them to do.

To be clear, nothing in the CVRA empowers crime victims to force a

prosecutor to prosecute. See id. § 3771(d)(6). As the Concurring Opinion well

points out, the Executive Branch has exclusive authority and absolute discretion

over prosecutorial decisions and whether to seek indictment or not. Conc. Op. at

54-55. But what the CVRA does do is grant victims a statutory right to have an

opportunity to speak to the prosecutor before the prosecutor makes that decision.

In § 3771(c), the CVRA even mandates that the U.S. Attorney’s prosecutors, while

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“engaged in the . . . investigation[] or prosecution of crime shall make their best

efforts” to accord victims these statutory rights in subsection (a). Id. § 3771(c)(1).

After conferral, the prosecutor has the exclusive authority and discretion whether

to indict or not. Pre-charge, the Office spent days conferring and negotiating with

Epstein’s defense team, but had not a minute for the victims.

Unlike the Majority, I agree with the Fifth Circuit that crime victims have a

CVRA right to confer with the government attorney, even if a plea deal is struck

before any formal indictment is filed. See In re Dean, 527 F.3d 391, 394 (5th Cir.

2008). As the Fifth Circuit emphasized: “In passing the Act, Congress made the

policy decision—which we are bound to enforce—that the victims have a right to

inform the plea negotiations process by conferring with prosecutors before a plea

agreement is reached.” Id. at 395.

What’s worse is that the Majority concedes, as it must, that § 3771(a)(5)’s

conferral right and § 3771(a)(8)’s right to be treated with fairness have no temporal

limitation on their face and that petitioners are “not without [their] own textual

arguments.” Maj. Op. at 20, 25, 29. The Majority admits: “The interpretation of

the CVRA that petitioner advances, and that the district court adopted, is not

implausible; the CVRA could be read to apply pre-charge.” Id. at 18. Yet, the

Majority refuses to enforce the Act as written by Congress and grafts onto the plain

and unambiguous text a restriction Congress never enacted.

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The roadmap for my dissent follows. First, I recount more facts about the

undisputed conduct of the U.S. Attorney’s Office. This includes how initially the

Office wrote the victims, and later Epstein’s attorneys, that the victims had

ongoing CVRA rights to confer and be treated fairly. Tellingly, it was not until the

petitioner victims filed this lawsuit that the Office reversed course and took the

stance that the victims never had any CVRA rights in the first place.

Next, I examine the CVRA text and apply the relevant canons of statutory

interpretation. Then, I show the flaws in the Majority’s statutory analysis. In one

breath, the Majority urges Congress to fill the gap left by (the Majority’s reading

of) the CVRA and in the next tells us why granting victims two CVRA rights “pre-

charge” would be a bad idea.

Given this is a plain-text case, the Majority curiously carries on at length

about slippery slopes and bad policy implications that the Majority says counsel

against enforcing any victim rights “pre-charge.” Yet, since the Fifth Circuit’s

2008 decision and the District Court’s 2011 decision, there has been no flood of

civil suits by victims, no evidence of victims’ abuse of their CVRA rights, and no

prosecutors’ complaints about impairment of their prosecutorial discretion.

The Majority also dresses up its flawed statutory analysis with rhetorical

flourish, using language like “scandalous,” “national disgrace,” and “the sad details

of this shameful story,” while also expressing sincere empathy for the victims:

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“Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable

horror at Epstein’s hands, only to be left in the dark—and, so it seems,

affirmatively misled—by government lawyers, we find ourselves constrained to

deny her petition.” Maj. Op. at 2, 6. The Majority confesses that “[i]t isn’t lost on

us that our decision leaves petitioner and others like her largely emptyhanded” and

“we sincerely regret that.” Id. at 52. In addition to ruminating in sincere regret

and sympathy, we, as federal judges, should also enforce the plain text of the

CVRA—which we are bound to do—and ensure that these crime victims have the

CVRA rights that Congress has granted them.

Next, I address the constitutional concerns about the CVRA raised in the

Concurring Opinion, although that, so far, has not been the issue in this appeal.

Lastly, I address the remedy and why, due to the U.S. Attorney’s Office’s

egregious violations of the victims’ rights, this Court should remand the case to the

District Court for consideration of the victims’ requested remedies.

I. PROSECUTORS ADVISE VICTIMS HAVE CVRA RIGHTS

This case is not about the start or middle stages of a criminal investigation.

Rather, as detailed below, this case is about (1) a completed investigation of

federal sex-trafficking crimes against minor girls and (2) the U.S. Attorney’s

Office’s repeated communications that it (a) had “proof beyond a reasonable

doubt” that over 30 minor girls were victims of Epstein’s criminal sexual conduct

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and (b) had “decided to proceed with [Epstein’s] indictment.” Let’s start with the

investigation and how the Office in 2006 wrote the victims that they did have

CVRA rights pre-charge.

A. 2005 – 2007 Criminal Investigation

In 2005, the parents of a 14-year-old girl reported to the Palm Beach Police

Department that Jeffrey Epstein sexually abused their daughter. This report began

the investigation into the then 52-year-old billionaire Jeffrey Epstein—an

investigation that ultimately revealed that Epstein assembled a network of

underage girls whom he sexually abused at his mansion in Palm Beach, Florida,

elsewhere in the United States, and overseas.

In 2006, at the Palm Beach Police Department’s request, the Federal Bureau

of Investigation (“FBI”) opened a federal investigation into Epstein’s and his

personal assistants’ use of facilities of interstate commerce to induce girls between

the ages of 14 and 17 to engage in illegal sexual activities. Thereafter, the U.S.

Attorney’s Office accepted the case for prosecution and assigned specific federal

prosecutors to the case.

The FBI established that Epstein used young female recruiters and paid

employees to find and bring minor girls to him, as often as three times a day, for

his own and others’ sexual gratification. Epstein also directed other people to

sexually abuse the minor girls, including his co-conspirator Nadia Marcinkova.

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This in-depth federal investigation proved that, between 2001 and 2007, Epstein

sexually abused more than 30 minor girls, and multiple co-conspirators either

procured the girls for Epstein’s sexual gratification or participated in the sexual

abuse themselves. The victims include the petitioners in this case, Jane Doe 1 and

Jane Doe 2, who were 15 years old when first sexually abused by Epstein.

B. Aug. 2006 Letter to Crime Victim about CVRA Rights

Throughout the two-year investigation, once a victim of Epstein’s sexual

abuse was identified, the lead Assistant U.S. Attorney (“AUSA”) assigned to the

case, A. Marie Villafana, sent a letter telling the victim that she was protected by

the CVRA and explaining her statutory rights under the CVRA.

For example, in 2006 and before an indictment was drafted in 2007, the U.S.

Attorney’s Office told petitioner Jane Doe 2 in a letter that she had statutory rights

“to confer with the attorney for the Government in the case,” “to be treated with

fairness,” and to petition the District Court if her CVRA rights were being violated.

See 18 U.S.C. § 3771(a), (d)(3). The Office’s 2006 letter explained that the

Department of Justice would make its “best efforts” to ensure Jane Doe 2’s CVRA

rights were protected. Later, in March 2007, the Office began sending similar

letters to Epstein’s other victims, informing them of their ongoing CVRA rights.

This initial position of the U.S. Attorney’s Office—that the petitioners had

ongoing CVRA rights—is not surprising given that the CVRA was enacted to

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protect crime victims’ rights and ensure their involvement in the criminal justice

process. United States v. Moussaoui, 483 F.3d 220, 234 (4th Cir. 2007); Kenna v.

U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006) (“The [CVRA] was enacted

to make crime victims full participants in the criminal justice system.”).

II. MAY 2007: FEDERAL INDICTMENT PREPARED

By May 2007, the U.S. Attorney’s Office had completed an 82-page

prosecution memo and a 53-page draft indictment against Epstein, charging him

with numerous federal crimes of sex trafficking minor victims. The prosecutors

were prepared to indict Epstein. For the victims, so far, so good. But what the

victims didn’t know is what was secretly going on behind the scenes.

III. JAN. – SEPT. 2007: PROSECUTORS NEGOTIATE WITH EPSTEIN

Meanwhile and unbeknownst to the victims, for over nine months in 2007

(from January to September), the U.S. Attorney’s Office was discussing with

Epstein’s defense team the forthcoming federal criminal charges. During this time,

Epstein’s defense team made multiple presentations to the Office to try to convince

them not to prosecute Epstein, maintaining he committed no federal crimes.3

3
Jeffrey Epstein’s defense team included at various times attorneys from multiple law
firms, such as: (1) Jay P. Lefkowitz, Kirkland & Ellis, New York, NY; (2) Roy Black, Black
Srebnick Kornspan & Stumpf, Miami, FL; (3) Gerald B. Lefcourt, Law Office of Gerald B.
Lefcourt, P.C., New York, NY (4) Lilly Ann Sanchez, Fowler White Burnett, Miami, FL;
(5) Jack A. Goldberger, Goldberger & Weiss, West Palm Beach, FL; and (6) Joe D. Whitley,
Alston & Bird, Washington D.C.; as well as Harvard Law Professor

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4525039. Public record. Not legal advice.