The Volokh Conspiracy
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Recently the case of Jeffrey Epstein has been in the news, sparked by an impressive set of articles by the Miami Herald. In 2007, Epstein was accused of sexually molesting dozens of underage girls in Florida. In 2008, he reached a non-prosecution agreement (NPA) with the U.S. Attorney's Office for the Southern District of Florida, blocking prosecution of him for any federal sex offenses that he may have committed in exchange for his guilty plea to two low-level Florida crimes. Epstein ultimately spent about 13 months in jail, much of it on work release.
Meanwhile, in July 2008, Florida crime victims' attorney Brad Edwards and I challenged the NPA for two victims, arguing it was reached in violation of the Crime Victims Rights Act (CVRA). Because the matter continues to be litigated, I do not want to comment on the merits of the case. But the case has drawn considerable attention. For example, the case has already set an important precedent that victims' rights under the CVRA apply before charges are filed, as explained in this law review article. And as an example of more recent interest, yesterday Nebraska Senator Ben Sasse sent a letter to the Justice Department asking it to investigate its treatment of Jeffrey Epstein's victims. In light of this renewed interest in the case, a short blog post simply describing the legal posture of the crime victims' CVRA claims might be useful.
In July 2008, Edwards and I filed the lawsuit on behalf of two women whom the Justice Department has identified as having been sexually assasulted by Epstein when they were underage—Jane Doe 1 and Jane Doe 2. The victims contend that the U.S. Attorney's Office for the Southern District of Florida executed the NPA while concealing what it was doing from Epstein's victims. The lawsuit has been through a number of twists and turns during the more than a decade it has been pending. But relevant to the current posture is that the victims' motion for summary judgment is pending. In that motion, the victims argue that the court should grant summary judgment on the issue of whether the U.S. Attorney's Office violated their rights under the CVRA by concealing the NPA from the victims. Here are some excerpts from the introduction to our 55-page motion:
In 2004, Congress enacted the CVRA because it found that in case after case "victims, and their families, were ignored, cast aside, and treated as non-participants in a critical event in their lives. They were kept in the dark by prosecutors too busy to care enough . . . and by a court system that simply did not have place for them." 150 CONG. REC. 7296 (2004) (statement ofSen. Feinstein). In passing the CVRA, Congress mandated a series of rights for crime victims. Sadly, several years later, when the Government began handling this case, it did precisely what Congress thought it had forbidden. The Government deliberately kept crime victims "in the dark" so that it could enter into a plea arrangement designed to prevent the victims from raising any objection. In doing so, the Government refused to afford victims the rights they had been promised by Congress—particularly "the right to reasonable, accurate, and timely notice of any public court proceeding," "the 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."
The undisputed evidence begins in 2005, when the Palm Beach Police Department ("PBPD") had identified numerous girls as victims of Jeffrey Epstein's sexual crimes. In 2006, the PBPD turned the case over to federal authorities for further investigation. As early as March 15, 2007 and throughout the rest of the investigation, the United States Attorney's Office for the Southern District of Florida specifically identified several dozen girls whom it classified as "victims" under the CVRA. Once that identification was made, the Government was obligated to afford these victims certain rights under the CVRA—a fact of which the Government itself was well aware. Indeed, the Government provided notification to the girls that they were classified as "victims" under the CVRA.
But what the Government did not tell the victims lies at the heart of the case. It is undisputed that the Government did not tell the victims that, by May 2007, the Office hadprepared an 82-page prosecution memorandum and a 53-page indictment against Epstein and his co-conspirators. At that time, rather than confer with the victims about how to proceed, the Government began conferring about this issue exclusively with Epstein's counsel. Epstein's counsel contended that, despite abundant connection to interstate commerce, Epstein's sex trafficking was purely of local concern. By August 2007, federal prosecutors had disproven or rejected these defense arguments and notified the defense that all of the identified victims retained federal rights.
For example, during August 2007, Jane Doe 1, and other similarly situated victims, provided details to federal agents of the abuse that they endured at the hands of Epstein and his co-conspirators. In September 2007, without conferring with any of the victims, the Government and Epstein shifted gears and began working together to concoct a criminal charge for Epstein to plea to other than his sexual abuse of minors. As alternative charges, they discussed charging Epstein with: (1) various misdemeanors, (2) assaulting his co-conspirators and girlfriend, (3) using private investigators to chase and harass victims' families, (4) obstructions of grand jury subpoenas, or (5) his obstruction of the federal investigation when he instructed another coconspirator to lie to federal agents. Ultimately, however, none of those would work. Assistant U.S. Attorney ("AUSA") Marie Villafaña (the "line prosecutor") informed Epstein's counsel that she was getting pushback for creating a charge using one of the main co-conspirators as thevictim.6 Consequently, the Government and Epstein searched for another crime for Epstein to plead to, which could accompany a federal non-prosecution agreement (NPA). Incredibly, the offense to which Epstein and the Government ultimately agreed, labeled the minor victims "prostitutes."
The undisputed evidence clearly shows that by September 21, 2007, the line prosecutor had informed Palm Beach State Attorney Barry Krischer that a federal resolution had been reached by way of a NPA, yet the victims remained uninformed. On September 24, 2007, the NPA was signed, preventing prosecution of all federal crimes committed by Epstein and his coconspirators against the victims. After the signing of the NPA, the Government and Epstein's attorneys worked together to choose a lawyer to be paid by Epstein to represent Epstein's victims for the purpose of settling civil restitution claims. This too was all being done without the victims having any knowledge whatsoever. The correspondence between the Government and a candidate for that representative position as well as between the Government and Epstein's counsel reflects that the Government still had not yet disclosed the NPA to the victims, and was following the guidance of Epstein's counsel in making decisions with respect to the timing and substance of any communication to the victims.
For the next nine months, from the time the NPA was signed through the date of Epstein's state court plea in June of 2008, the Office—doing Epstein's bidding—assiduously concealed the NPA's existence from the victims. While this indulgent deal was incredible in its own right, even more extraordinary was how the victims were treated during the process. Ratherthan confer with the victims about the fact that resolution by NPA was ever being considered—or even tell them that it was already a signed deal—the Office and Epstein inserted a "confidentiality" provision into the agreement barring its disclosure to anyone, including the victims. There is no dispute that the Government did not inform the victims of the NPA or of the possibility of any such type of resolution. Consequently, there is no dispute that the Government did not afford the victims any rights before the signing of the NPA. . . .
In October 2007, after the NPA was signed, federal agents spoke with three of the more than 30 identified victims, including Jane Doe 1. The Government does not dispute that this contact only occurred after the signing of the NPA. Even more important, it is not disputed that this contact was: (1) made by the Federal Bureau of Investigation and not a "prosecutor for the Government," (2) that the FBI did not inform the victims of the NPA and certainly did not confer with the victims about the details of the NPA, and (3) that this contact only occurred with three of the more than 30 victims. Lastly, while the content of that conversation is contested, any stretched argument that the conversation satisfied CVRA requirements for Jane Doe 1 are belied by the timing of the conversation as well as the uncontested documentary evidence of the communications with the victims (including with Jane Doe 1) that followed that conversation.
Subsequent to the FBI's contact with three of Epstein's victims, the Government informed Epstein's attorneys that victim notification letters needed to be sent to all the victims pursuant to the CVRA. Rather than comply with this acknowledged requirement, Epstein's counsel convinced the Government that (contrary to standard Government practice) Epstein should be permitted to provide input into any message being delivered, and ultimately that the victims should not be told anything "until after Epstein pleas."
In January 2008, FBI agents again met with Jane Doe 1 and gathered additional details about Epstein's abuse as well as the direct sexual abuse by one of his co-conspirators, Nadia Marcinkova—who participated in the abuse of other victims as well. The Government then sent a victim notification letter to Jane Doe 1 informing her of her rights under the CVRA, that "this will be a long investigation," and to "be patient." Jane Doe 1 was sent a similar letter on June 7, 2008. Other victims were also sent these letters communicating that the Epstein case was an on-going active criminal investigation—not that the Government had already immunized Epstein for all federal crimes committed against each of the victims, through a NPA. These misleading letters were sent almost up until the date of Epstein's state court plea in late June 2008.
On June 30, 2008, Epstein pled guilty to state court charges. It is uncontested that the victims were not reasonably and accurately informed about that hearing—specifically, they were never told the hearing was part of a process that would extinguish any possibility of Epstein being prosecuted for the crimes he had committed against them in Florida. Even after the plea, the Government once again conferred with Epstein's attorneys to decide what to tell the victims.
As the Court is aware, this CVRA action was filed in July 2008 at a time when the victims mistakenly believed that the federal case remained open, and wanted to ensure that their rights under the CVRA were afforded before any possible federal disposition. At the emergency hearing on the Petition for Enforcement of Crime Victims' Rights Act, Jane Doe 1 and Jane Doe were in the courtroom to learn for the first time that the federal case had been resolved.
The undisputed facts show that for nine months, the Government and Epstein conspired to conceal the NPA from the victims to prevent them from voicing any objection, and to avoid the firestorm of controversy that would have arisen if it had become known that the Government was immunizing a politically-connected billionaire and all of his co-conspirators from prosecution of hundreds of federal sex crimes against minor girls. Such facts demonstrate clear violations of the CVRA's requirements that the Government afford victims the reasonable right to confer, the right to be treated with fairness, and the right to reasonable and accurate notice about court hearings. No genuine issue of material fact or law can exist on these points. The Court should accordingly grant summary judgment for the victims on the issue of the CVRA violations and then, in subsequent proceedings, turn to the issue of the proper remedy for those violations.
We filed the motion for summary judgment for Jane Doe 1 and Jane Doe 2 on February 10, 2016. The Government responded on June 6, 2017. Essentially the Government argued that it had no legal obligation to keep the victims' informed about what was happening. We replied in this reply brief on August 11, 2017. The government has also filed a cross-motion for summary judgment, which essentially reprises its arguments in our response to our motion.
Because the matter is pending before the Court, I won't add anything to what we have said in our pleadings. Obviously Edwards and I (recently joined by Florida attorney Jack Scarola) hope that the district court will grant our summary judgment motion, holding that this treatment of crime victims violates federal law.