The Crime Victims’ Rights Act gives “crime victims” a right to “confer” with government attorneys and to be “reasonably heard” in the course of federal criminal prosecutions. The Act calls on federal courts to “ensure” that victims are “afforded” these rights. (See Abramowitz and Sack, “Victims’ Rights and White Collar Defense,” New York Law Journal (July 11, 2017)). An important procedural issue has arisen under the CVRA: when does a victim’s right to confer arise – before charges are filed in court, or only afterward?
The issue has significance for white-collar prosecutors and defense counsel. If the right to confer arises before charges are filed, then potential victims would be entitled to have a say in, for example, whether, and to what extent, leniency should be conferred on an individual or corporate target of investigation at the charging stage. Such a right might complicate negotiations to conclude an investigation.
A recent en banc decision of the Eleventh Circuit, In re Wild, 994 F.3d 1244 (11th Cir. 2021), has shed light on the issue but, regrettably, did not resolve the key procedural issue. In that case, victims of Jeffrey Epstein sought to vindicate rights which, they alleged, had been violated by federal prosecutors. The case has a complex history, so a brief procedural summary is in order.
In 2007, the U.S. Attorney’s Office for the Southern District of Florida (the “Office”) entered into a Non Prosecution Agreement with Epstein (NPA), under which the Office agreed not to prosecute Epstein in exchange for Epstein pleading guilty in Florida state court to prostitution and solicitation charges. The Office entered into the NPA without first discussing the possible deal with a victim of Epstein, Courtney Wild, who had already been in contact with the Office.
Four months after signing the NPA, the government advised Ms. Wild that the case was still under investigation and that the process could be lengthy, and asked for her continued patience. A similar letter was sent by the government to another victim eight months after the NPA was finalized. The Office’s statements to victims were not a mistake: the NPA provided that “[t]he parties anticipate that this agreement will not be made part of any public record,” and “in deference to Epstein’s lawyers’ repeated requests,” the Office refrained from notifying victims (for what turned out to be approximately eight months) until after Epstein’s Florida state plea deal was inked. 994 F.3d at 1248. Making the situation even worse, the Office had earlier advised victims of their rights under the CVRA to confer with the government and “to be treated with fairness and respect.”
In July 2008, Ms. Wild brought an action claiming that the Office had violated her rights under the CVRA to “confer with the attorney for the government in the case” and “to be treated with fairness and with respect.” A second plaintiff joined the action shortly after it was filed. The district court held that rights under the CVRA attach before the government brings formal charges and ruled (after years of discovery and motion practice) that the Office had violated Wild’s CVRA rights — but the court left open the issue of an appropriate remedy. Does #1 and #2 v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011); Doe 1 v. United States, 359 F. Supp. 3d 1201 (S.D. Fla. 2019).
Interestingly, in 2007 when prosecutors were communicating with victims, internal DOJ Victim and Witness Assistance Guidelines were not entirely clear as to when victims’ CVRA rights attach: the Guidelines called for “[r]esponsible officials” to “make reasonable efforts to notify identified victims of, and consider victims’ views about, prospective plea negotiations.” In 2010, while Wild’s lawsuit was pending, the DOJ’s Office of Legal Counsel issued an opinion which concluded that a crime victim’s rights under the CVRA “are not guaranteed until criminal proceedings are initiated . . . and cease to be guaranteed if all charges in the case are declined or dismissed either voluntarily or on the merits.” 34 Op. O.L.C. 239 (2010) – a position reflected in revised 2011 Victim and Witness Assistance Guidelines which remains in effect today.
In 2019, before a remedy for the violation of the CVRA was decided, the district court dismissed the case as moot following Epstein’s death in federal detention. Doe 1 v. United States, 411 F. Supp. 3d 1321 (S.D. Fla. 2019). An appeal to the Eleventh Circuit followed, resulting in a divided panel of the Court holding, in April 2020, that CVRA rights, including a victim’s right to confer, do not attach before the filing of criminal charges. In re Wild, 955 F.3d 1196 (11th Cir. 2020). See generally Abramowitz and Sack “Limiting Victims’ Rights: Eleventh Circuit Reads CVRA Narrowly,” New York Law Journal (May 28, 2020)).
That appellate holding was vacated several months later when a request for en banc review was granted. In re Wild, 967 F.3d 1285 (11th Cir. 2020). The Eleventh Circuit directed the parties to address (1) “[w]hether the CVRA creates rights that attach and apply before the formal commencement of criminal proceedings;” and (2) “[w]hether, even assuming that it does so, the CVRA creates a private right of action, such that any pre-charge right is judicially enforceable in a freestanding lawsuit.” 994 F.3d at 1251.
The majority en banc decision, while acknowledging its “profound sympathy” for the petitioner and Epstein’s other victims, ruled against the victims on procedural grounds. The majority held that the CVRA does not authorize enforcement by a victim in a freestanding civil action. As a result, the majority concluded that it need not resolve the issue decided by the original panel: whether the rights to confer or be treated with fairness attach before the government brings formal charges. So, ironically, the principal issue to be decided en banc according to the Eleventh Circuit – when a victim’s right to confer with federal prosecutors arises – was avoided.
The majority decision found no clear evidence that Congress intended to create a private right of action for crime victims to initiate freestanding civil actions to vindicate CVRA rights. Reading the statutory text to establish such a right, in the majority’s view, risks “impair[ing] . . . prosecutorial discretion” by requiring the court to determine whether an individual is a “crime victim” while an investigation is ongoing without the benefit of an initial determination by the government in the form of a charging decision; and by permitting “a putative victim to challenge the correctness . . . of [a] prosecutor’s no charge decision in court – effectively appealing the prosecutor’s exercise of discretion to a federal district judge.”
The primary dissenting opinion was written by Judge Elizabeth Lee Branch. That opinion concluded that the CVRA granted victims the right to file a stand-alone lawsuit on the basis of the CVRA provision that allowed a victim to file a “freestanding ‘[m]otion for relief’ in ‘the district court in the district in which the crime occurred’ when ‘no prosecution [is] underway.’” She further disagreed with the majority’s decision not to reach the issue of whether CVRA rights attach prior to the filing of formal charges and concluded that the “plain statutory language” of the CVRA grants crime victims’ pre-charge rights.
In a separate dissent, Judge Frank Hull wrote that ruling on whether Ms. Wild had pre-charge conferral rights would not constitute an impermissible advisory opinion and stated that “it makes no sense to conclude that this Court at the panel stage properly decided the justiciable issue of whether Ms. Wild’s rights under the CVRA attached pre-charge only up and until it concluded at the en banc stage that Congress provided her with no cause of action to enforce any right she might have.”
In separate opinions concurring with the majority, judges highlighted their concerns with declaring a victim’s right to sue the government as called for by the dissenting judges. Chief Judge William H. Pryor Jr. wrote that the dissenters would have the court issue an advisory opinion and, in the process, err by reading individual sections of the CVRA in isolation and misapply the presumption against implied rights of action when interpreting statutes. Judge Newsom, who had authored the earlier April 2020 panel decision and the en banc majority opinion, took prosecutors to task for misleading Ms. Wild and others, but wrote that he was constrained by his obligation to interpret and apply the text of the statute as written. Judge Tjoflat explained how interpreting the CVRA to permit pre-charge efforts to vindicate a victim’s rights may be unfair to those accused of federal crimes and violates the separation of powers doctrine by permitting judicial interference in prosecutorial decisions.
In the end, the Eleventh Circuit foreclosed one avenue of relief for victims under the CVRA – a separate civil lawsuit. But, as to the core issue that gave rise to en banc review, the Eleventh Circuit failed to reach a decision. That issue – the right of victims to consult with prosecutors before charges are filed – will have to wait for resolution in another case.
Kefira R. Wilderman, an attorney formerly with the firm, assisted in the preparation of this article.