Crime Victim's Petition for Rehearing En Banc Just Filed in the Eleventh Circuit Jeffrey Epstein Case

Epstein's victims ask the full Court to rehear this case, which upholds concealing "secret" non-prosecution agreements from crime victims.


Today, along with co-counsel Brad Edwards, I filed a petition for rehearing en banc in the Eleventh Circuit, on behalf of Courtney Wild, a sex abuse victim of multimillionaire Jeffrey Epstein. The petition asks the full Eleventh Circuit to rehear its earlier divided (2-1) ruling, rejecting Epstein's victims' appeal challenging a secret non-prosecution agreement giving immunity to Epstein and his coconspirators–a ruling I previously blogged about here.

At this point, after nearly twelve years of litigation, the case revolves around whether the federal Crime Victims' Rights Act has any application before prosecutors formally file federal criminal charges. Here are the opening few paragraphs of today's petition, which presents issues of critical importance for crime victims' rights:

The full Court should rehear this case—perhaps the most important case in our nation's history involving crime victims' rights in the criminal justice process.

This case arises against the backdrop of underlying facts that "are beyond scandalous—they tell a tale of national disgrace." Petitioner Courtney Wild and more than thirty girls "suffered unspeakable horror" at the hands of an international sex trafficking organization operated by wealthy financier Jeffrey Epstein. But after the victims reported the crimes against them, they were "left in the dark—and, so it seems, affirmatively misled—by government lawyers" about a secret non-prosecution agreement (NPA) that the Government negotiated with Epstein.

On these egregious facts, a divided panel decision (with three separate opinions spanning 120 pages) refused to find any violation of the Crime Victims' Rights Act (CVRA). The majority concluded that because the Government—working closely with Epstein's battery of high-powered lawyers—never formally filed federal criminal charges in the case, the CVRA was never "trigger[ed]."  The majority admitted that its narrow reading of the CVRA leaves this important Act of Congress ineffectual in many cases. In fact, the majority acknowledged that "[u]nder 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." Judge Hull's 60-page dissent put the matter more plainly: "the [m]ajority's contorted statutory interpretation materially revises the statute's plain text and guts victims' rights under the CVRA."

If the panel decision is left in place, it will permit "secret" justice depriving literally thousands of crime victims throughout this Circuit of any CVRA rights until the Government formally files charges. This will create perverse incentives for the Government to negotiate secret agreements within this Circuit rather than elsewhere, such as in the adjoining Fifth Circuit. The Fifth Circuit long ago held that "[i]n passing the [CVRA], Congress made the policy decision—which we are bound to enforce—that [crime] victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached." In re Dean, 527 F.3d 391, 395 (5th Cir. 2008).

The majority's "regret[table]" interpretation of the CVRA is not required. The majority candidly concedes that "[t]he interpretation of the CVRA that [Ms. Wild] advances, and that the district court adopted, is not implausible." Indeed, as the dissent carefully explains, the majority's perverse interpretation could be avoided simply by this Court "enforce[ing] the plain and unambiguous text of the CVRA…." And equally remarkably, this issue of vital importance was one that the Government placed before this Court in its response brief, rather than following the normal—and required—appellate procedure of filing a cross-appeal.

Rather than leave standing this panel decision which "guts" victims' rights, this Court should rehear this case en banc and consider two questions of exceptional public importance that will determine how crime victims' rights are enforced throughout this Circuit:

  1. Whether crime victims' rights can attach under the CVRA before the Government formally files criminal charges, as the Fifth Circuit and various district courts have previously held?

  2. Whether Congress' 2015 CVRA amendment requiring that "[i]n deciding [a CVRA] … application, the court of appeals shall apply ordinary standards of appellate review," 18 U.S.C. § 3771(d)(3), permits the Government to inject new issues into a CVRA enforcement action and expand its rights beyond those conferred in the judgment below without following the ordinary appellate requirement of filing a cross-appeal?

A full copy of the petition can be found here.  Along with Nathanael Mitchell and Brad Edwards, I've previously written a lengthy law review article on this subject of applying the CVRA before charges are filed.

Obviously, I hope that the Court calls for the Government to respond to the petition and then rehears this very important case. The issues go directly to the whether the CVRA can be simply circumvented by prosecutors and defense attorneys reaching secret agreements not to file charges.  This is a recurring issue that needs to be carefully reviewed.

NEXT: Originalism on the Lower Courts: En Banc Proceedings Can "better align our precedents with the text and original understanding of the Constitution"

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  1. Petitioner Courtney Wild and more than thirty girls “suffered unspeakable horror”


    Victims, yes. Serious crime, yes. But “unspeakable horror”?!?

    1. Apparently that’s how the majority opinion put it – the very opinion which rejected the plaintiffs’ claims.

      If a court rules against you but still agrees that your client suffered “unspeakable horror,” that sounds like something worth quoting.

  2. If this is reversed could crime victims be given access to any action prior to charging? Like decisions not to prosecute or bring lesser charges?

    1. No. The dissent thoroughly puts to bed the parade of horribles conjured by the majority.

  3. “perhaps the most important case in our nation’s history involving crime victims’ rights in the criminal justice process”

    No hyperbole here.

    Well, at least the professor is no longer a judge.

    1. “a sex abuse victim of multimillionaire Jeffrey Epstein” — as if “multimillionaire” is necessary. Yep, no hyperbole. Pound that table, counselor.

      1. Isn’t Payne v. Tennessee a more important victim’s rights case?

        1. Yes, Payne – that would be the argument — but Payne’s holding narrowly applies only to capital cases … and only to certain forms of victim impact evidence from family members. So I’m seeing In re Courtney Wild as, at a minimum, a very strong candidate for being #2 on the list … and given the broader reach an arguable candidate for #1.

    2. Hey Bob,
      I thought a lot about that sentence – “perhaps the most important case ….” I’m co-author on a law school casebook on crime victims rights, and so I’m familiar with the other cases out there. The clearest competitor for #1 ranking would be Payne v. Tennessee, 501 U.S 808 (1991), which upheld victim impact testimony from victims’ family members in capital cases. But because that case was limited to capital sentencing issues, it affects only a tiny sliver of cases in the criminal justice system. Did you have some other cases in mind that would be more important? This case affects whether thousands of crimes in the Eleventh Circuit will have any rights at all – and will likely serve as a precedent for other Circuits … and perhaps other states that are considering similar issues.

      1. Did that kind of breathless language impress you when you were a judge?

        If it was only the third most important VRA case ever, would that let the court shrug it off? Or 5th? Or 10th?

        Every case is important to the plaintiffs.

        1. Hi Bob — Actually …
          Because this is a petition for rehearing en banc, the court can “shrug off” the petition if it is not of sufficient importance. See 11th Cir. Rule 35-5(C) (requiring that a “statement of importance” precede a petition for rehearing en banc). So the current posture is very different than that of an ordinary appeal where, as you quite properly point out, every case is important to the plaintiff.

    3. I have to say, I’m not a fan of Paul Cassell’s (academic, anyway) work, for the most part. Imagine my shock when I discovered he was counsel for the victims here. I feel so dirty rooting for him, now. But this really is an important case. The 11th Circuit eviscerated the CVRA.

  4. The petition and post is very hyperbolic. I’m generally not a fan of Prof. Cassell’s broken record posts. That being said, I think agreements prior to the filing of charges are included under the plain language of the statute. The only argument I can find to the contrary is that it isn’t an “agreement” (alternatively, the statute refers to deferred prosecution agreements. I suppose this isn’t deferred so much as abandoned).

    Certainly, there’s nothing in the statute talking about when the right begins that would suggest filing of charges must occur. In fact, to the extent there is anything listed, there’s a procedure for where to file if there is no prosecution underway (which would imply a right to file when there’s an agreement not to prosecute).

    Of course, the statute makes clear that prosecutorial discretion, including a decision to not prosecute, is perfectly allowed. The only limitation, it seems, is when there is an agreement not to prosecute.

  5. If the court is right and Congress actually passed a “Victims Rights Act” without forbidding the kind of stuff done here, then Congress did a fairly poor job, if you ask me.

  6. Serious question: If the Court changes its mind on this, what happens. What is the remedy? The criminal is dead. He can’t be prosecuted again. Why isn’t this case moot?

    1. The victim requested monetary damages and injunctive relief, which obviously doesn’t depend on Epstein’s survival.

      1. “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” (10).

        “Yet before the District Court ruled on the remedies, Epstein died on August 10, 2019. On September 16, 2019, the District Court directed the Clerk to “close the case and all pending motions are denied as moot.” Because the Office could no longer prosecute the intervenor Epstein, the victims’ additional remedy requests—such as rescission of the NPA as to him—were clearly moot. However, as the victim petitioner argues before us, this civil case remains live as between the victims and the Office with respect to the victims’ other requested remedies” (dissent, 116).

        1. Thanks. Very helpful. I hope they win. (Personally, I’d be happy if they dug up Epstein and executed him, but I’m afraid that’s not a very mature attitude.)

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