EFTA00591461.pdf

Case 9:013-cv-80736-.M Document 401-2 Entered on FLED Docket 06/02,017 Page 1 of 33 GOVERNMENT EXHIBIT EFTA00591461 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 2 of 33 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE I AND JANE DOE 2, Petitioners, vs. UNITED STATES, Respondent. GOVERNMENT'S RESPONSE AND OPPOSITION TO PETITIONERS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT Respondent United States of America, by and through its undersigned counsel, files its Response and Opposition to Petitioners' Motion for Partial Summary Judgment and Cross- Motion for Summary Judgment, and states: I. INTRODUCTION Petitioners contend the Government violated their rights under the Crime Victims' Rights Act ("CVRA"), 18 U.S.C. § 3771, by: (I) failing to confer with them (D.E. 361 at 48-51; (2) failing to treat them with fairness (D.E. 361 at 51-53); and (3) failing to provide petitioners with reasonable and accurate notice (D.E. 361 at 54-55). The Government disputes many of the facts which petitioners contend are not in dispute, and have controverted those facts in the accompanying Response to Petitioners' Statement of Uncontroverted Facts. Indeed, many of the so-called "facts" are legal conclusions or argument of petitioners' counsel. The undisputed facts establish that the Government is entitled to judgment as a matter of law, because it did not violate the CVRA rights of either petitioner. EFTA00591462 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 3 of 33 II. JANE DOE NO. 2 CANNOT INVOKE THE CVRA BECAUSE SHE OPENLY OPPOSED AND WAS HOSTILE TO THE PROSECUTION OF JEFFREY EPSTEIN Petitioners have not distinguished the roles of Jane Doe No. 1 and Jane Doe No. 2, other than to assert that Jeffrey Epstein sexually abused both. However, the differing circumstances of the two petitioners during the investigation of Epstein are highly relevant in determining whether each petitioner can even invoke the CVRA. Through her attorney, James Eisenberg, Esq.,' Jane Doe No. 2 refused to be interviewed by the FBI and U.S. Attorney's Office unless she was granted immunity. Ex. A, Sept. 21, 2006 Is. from Eisenberg to AUSA Villafafia; Ex. S, ¶16-12. Thus, she was unwilling to provide any information regarding her encounters with Epstein unless she was assured her statements would not be used against her in a criminal prosecution. In accordance with her request, the Government obtained immunity under 18 U.S.C. § 6001 in order to obtain information from Jane Doe No. 2. Ex. B; Ex. S,11[6-12. On April 24, 2007, Jane Doe No. 2 was interviewed by FBI Special Agents E. Nesbitt Kuyrkendall and Jason Richards and AUSA Marie Villafafia, in the presence of her attorney, James Eisenberg, Esq. Ex. C; Ex. R,15; Ex. S, ¶ 12. Jane Doe No. 2 described her meetings with Epstein, and Epstein's offer to pay her $200 to bring girls to him. Ex. C at 20. When asked whether Epstein "pulled you closer to him in a sexual way," Jane Doe No. 2 replied: A. I wish. No, no, never, ever, ever, no, never. Jeffrey is an awesome man, no. Id. at 22. At the end of her interview, Jane Doe No. 2 was asked if she had any questions for the agents or AUSA Villafafia. Id. at 57. Jane Doe No. 2 responded: A. No, but I hope — I hope Jeffrey, nothing happens to Jeffrey because he's an Eisenberg's services were paid for by Epstein. Ex. S,17. 2 EFTA00591463 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 4 of 33 awesome man and it would really be a shame. It's a shame that he has to go through this because he's an awesome guy and he didn't do nothing wrong, nothing. Id. at 58. By her conduct, Jane Doe No. 2 plainly demonstrated that she did not view herself as a victim and did not seek to be treated as such, and she made clear her desire for the investigation to be resolved without charges being filed against Epstein. Several months after that videotaped interview, Attorney Eisenberg was asked whether AUSA Villafafia could contact Jane Doe No. 2 directly and was told that contact had to occur via Mr. Eisenberg. Ex. S,1 14. In seeking summary judgment, Jane Doe No. 2 bears the burden of coming forward and showing that there are no facts in dispute regarding her desire to consult with the prosecutor and her status as a victim. Jane Doe No. 2 has provided no sworn testimony or other evidence suggesting that during the period between the videotaped interview and the signing of the Non- Prosecution Agreement ("NPA"), she wished to confer with an attorney for the Government or any Government agent, felt that she was treated unfairly, or that she failed to receive reasonable or accurate notice. Jane Doe No. 2 has not only failed to carry her burden but the evidence shows that there is no genuine issue of material fact'- that Jane Doe No. 2 did not want to be treated as a victim with the rights provided by the CVRA. The person who pointedly denied being a victim of criminal activity perpetrated by Epstein, was represented by counsel paid for by Epstein, regarded Epstein as "an awesome man," refused to be interviewed unless immunity was granted, 2 For an issue to be "genuine" precluding summary judgment, there must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511 (1986) (internal citations omitted). 3 EFTA00591464 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 5 of 33 and hoped that Epstein would not be prosecuted cannot argue now that her rights as a victim were violated when the Government and Epstein entered into a non-prosecution agreement.' Similarly, to the extent the CVRA applies at all to Jane Doe No. 2, Jane Doe No. 2 cannot contend that she was not treated with fairness and with respect for her dignity and privacy because the Government honored her requests that the Government only communicate with her through attorney Eisenberg and took into consideration her expressed desire not to see Epstein prosecuted. See Ex. S, 9191 6-15: Ex. R. 11 3-6. The Government is entitled to summary judgment as to Jane Doe No. 2's claims. III. THERE IS NO RIGHT TO NOTICE OR TO CONFER ABOUT A NON-PROSECUTION AGREEMENT Section 3771(a)(5) provides that a crime victim has "[t]he reasonable right to confer with the attorney for the Government in the case." Petitioners maintain the "right to confer" means the Government was obligated to notify Jane Doe No. 1 of its intention to enter into a non- prosecution agreement with Epstein. The Government does not dispute that the NPA was signed on September 24, 2007, and Jane Doe No. I was not told about the NPA until October 2007. However, the Government disagrees with petitioners' implicit assertion that a victim's statutory "right to confer" is a "right to be notified." In § 377I (a)(2), Congress provided that a crime victim has "[t]he 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." The term "notice" is absent from § 3771(a)(5). Congress's decision not to use the word "notice" in § 3771(a)(5) is significant 3 Jane Doe No. 2's exculpatory statements regarding Epstein were not lost on his attorneys. A December 21, 2007 letter from Jay Lefkowitz, one of Epstein's attorneys, to U.S. Attorney Acosta, devoted two pages examining Jane Doe No. 2's interview testimony on April 24, 2007. Ex. D at 9-15. 4 EFTA00591465 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 6 of 33 because "[i]t is generally presumed that Congress acts intentionally and purposely where it includes particular language in one section of a statute but omits it in another." Lippert v. Community Bank, Inc., 438 F.3d 1275, 1279 (11th Cir. 2006), citin Bledsoe v. Palm Beach County Soil & Water Conservation Dist. 133 F.3d 816, 824 (11th Cir. 1998), and Russello v. United States 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.") (citation omitted). Section 377I(a)(5) provides a right of a crime victim to confer with the prosecutor in the case, but does not impose an obligation on the prosecutor to provide notice of a non-prosecution agreement. Section 3771(a)(5) obligates a prosecutor to give access to a crime victim to discuss issues brought up by the victim. It does not impose a duty on a prosecutor to give notice about a particular development in the case, nor to consult with every victim about every such development, other than what is required in § 3771(a)(2). "Confer" and "notice" have separate and distinct meanings. "We refrain from concluding here that the differing language in the two subsections has the same meaning in each." Russello 464 U.S. at 23. At the inception of the Epstein investigation, the U.S. Attorney's Office provided letters to the victims. On or about August 4, 2006, Jane Doe No. 2 was sent a letter describing her rights under the CVRA, and providing contact information for the prosecutor. Ex. E; Ex. S, J 5. On or about August 11, 2006, Jane Doe No. 1 received a similar letter. Ex. F; Ex. S, 1 5. Both letters provided the name of the FBI agent handling the Epstein investigation, her phone number, the identity of the prosecutor, and her phone number. Plainly, both Jane Doe No. 1 and Jane Doe No. 2 had the means to contact the FBI agent and the prosecutor regarding any concerns about 5 EFTA00591466 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 7 of 33 the investigation. If they wanted to confer with the prosecutor, they only had to call her or the FBI agent. They did not. Ex. S, 5, 13, 31; Ex. R, 6, 7. In other words, the victims had the "right to confer" with the prosecutor, if they wanted and asked to do so. The attorney for the Government, however, had no statutory obligation to engage in unsolicited consultation with a victim who had never requested to confer. Petitioners refer to the May 2015 amendment of the CVRA to support their argument that the CVRA applies prior to the initiation of formal charges in a federal court. D.E. 361 at 48 n.I75. More than seven years after the NPA was signed and nearly 7 years after this matter was filed, Congress added a new subsection, 18 U.S.C. § 3771(a)(9), which gave victims "[t]he right to be informed in a timely manner of any plea bargain or deferred prosecution agreement." Section 113(a), Pub. L. No. 114-22, 129 Stat. 227 (May 29, 2015). But neither that 2015 amendment nor § 3771(a)(5) imposed a legal duty on the Government to notify petitioners of the non-prosecution agreement signed in 2007. It is well- settled that, "[w]hen Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect." Stone v. INS 514 U.S. 386, 397 (1995). The legislative history of Congress's addition of a new provision requiring prosecutors to timely inform crime victims of a plea bargain or deferred prosecution agreement illustrates that Congress believed the pre-existing version of § 3771(a)(1)-(8) did not encompass those subjects. Further, Congress's specific reference to plea bargains and deferred prosecution agreements (DPA), but not non-prosecution agreements (NPA), is telling. "DPA's differ from NPA's primarily with regard to the filing of criminal charges. With an NPA, `formal charges are not filed and the agreement is maintained by the parties rather than being filed with a court.' United States v. Fokker Services B.V., 818 F.3d 733, 738 (D.C. Cir. 2016) (citation omitted). 6 EFTA00591467 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 8 of 33 "Non-prosecution agreements are similar to plea agreements, except adherence to a non- prosecution agreement is the responsibility of the prosecutor alone while a plea agreement is subject to the approval of the court." United States v. Dorsett, 2009 WL 2386070 at *4 (D. Neb. Jul. 23, 2009), citing United States v. Minnesota Mining & Mfg. Co. 551 F.2d 1106, 1112 (8th Cir. 1977). Congress's inclusion of two events, which both address formal criminal charges that have already been filed in court, but excluding non-filed NPA's, further supports the Government's contention that § 3771(a)(5)'s right to confer did not arise until a formal criminal charge had been filed. Indeed, it makes no sense to conclude that conferring about an NPA is required where notification of an NPA is still not required after the 2015 amendments. Congress's addition of § 3771(a)(9) demonstrates it wanted to close a gap in the statute. Indeed, the legislative history of the amendment demonstrates that the provision sought to add to and strengthen the existing rights found in the CVRA by ensuring notice of plea agreements and deferred prosecution agreements: Finally, this legislation would strengthen the rights of crime victims. The bill would amend the Crime Victims' Rights Act to provide victims with the right to be informed in a timely manner of any plea agreement or deferred prosecution agreement. The exclusion of victims in these early stages of a criminal case profoundly impairs victims' rights because, by the nature of these events, there often is no later proceeding in which victims can exercise their rights. 161 Cong. Rec. S106 (daily ed. Jan. 8, 2015) (statement of Sen. Feinstein, for herself and for Sens. Portman, Comyn, Gillibrand, and Kirk) (addressing Senate Bill 140, the Combat Human Trafficking Act of 2015, which contained a provision, later incorporated into the Justice for Victims of Trafficking Act of 2015 that amended the CVRA, adding "[t]tle right to be informed in a timely manner of any plea agreement or deferred prosecution agreement" to 18 U.S.C. § 3771(a)). Indeed, many of the supporters and sponsors of the legislation explained that one of the purposes of the legislation was to create a requirement that ensured that crime victims would 7 EFTA00591468 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 9 of 33 be informed of plea agreements and deferred prosecution agreements in their cases. See 161 Cong. Rec. S1345 (daily ed. Mar. 10, 2015) (statement of Sen. Thune) ("Among the bill's many victim-related provisions are . . . a notification requirement to ensure that trafficking victims are told of any plea bargains or deferred prosecution agreements in their case ...."); 161 Cong. Rec. S1398 (daily ed. Mar. 11, 2015) (statement of Sen. Reid) ("It keeps victims of trafficking and child pornography informed regarding any plea bargain or deferred prosecution related to their cases."); 161 Cong. Rec. S1466 (daily ed. Mar. 12, 2015) (statement of Sen. Hoeven) ("It ensures that Federal crime victims are informed of any plea bargain or deferred prosecution agreement in their case . ...'); 161 Cong. Rec. 51466 (daily ed. Apr. 21, 2015) (statement of Sen. Hoeven) ("This bill has many important, strong points It also ensures that Federal crime victims are informed of any plea bargain or deferred prosecution agreement in their case and clarifies that the ordinary standard of appellate review applies in cases concerning Federal crime victims' rights petitions.... This legislation will help for all of those reasons."). The presumption is that Congress intends to change the law when it enacts amendments. Bailey v. United States, 52 Fed. Cl. 105, 110 (2002), citin Wallace v. Jaffree 472 U.S. 38, 59 n.48 (1985). Here, not only did Congress change the law by creating a victim notification requirement for plea bargains and deferred prosecution agreements, it decided not to create such a requirement for non-prosecution agreements in the amended § 3771(a)(9). Moreover, § 377I (a)(9) does not require advance notice of a plea offer or proposed deferral of prosecution while such resolutions are being considered or negotiated by the Government; rather, the plain language of § 377I(a)(9) only requires that notice be provided "in a timely manner" after a plea bargain or deferred prosecution agreement has come into existence. Even if the CVRA can apply prior to the filing of a formal charge, the scope of the duty 8 EFTA00591469 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 10 of 33 in § 3771(a)(5) does not extend to NPAs, and certainly not to inchoate NPAs, where the amended statute still does not even require notice to a crime victim of an NPA. Consequently, there was no duty to notify Jane Doe No. 1 or Jane Doe No. 2 of the NPA nor to confer with them about it. IV. THE GOVERNMENT DID NOT VIOLATE PETITIONERS' RIGHT TO CONFER Petitioners nonetheless contend the Government violated their right to confer in three separate time periods: (1) on and before September 24, 2007, when the Government was negotiating and signing the NPA; (2) in and around January 2008, when it sent letters to the victims counseling patience while the Government finished its investigation, but did not tell them about the NPA; and (3) in and around June 30, 2008, when the Government did not tell the victims that Epstein's state plea would effectively "extinguish their rights to ever see Epstein prosecuted." D.E. 361 at 49. As to the first time period, the Government had no duty under § 3771(a)(5) to notify or confer with petitioners about the NPA, particularly when neither petitioner had asked to confer about any charging decisions or any potential resolution of the investigation. Section III, supra. As to the second period, in and around January 2008, there can be no dispute that Epstein's attorneys aggressively sought review of the NPA at higher levels within the Department of Justice, seeking relief from the obligations Epstein had undertaken in that agreement. First, he raised challenges to the United States Attorney's exercise of his prosecutorial discretion with the Assistant Attorney General and with the Child Exploitation and Obscenity Section (CEOS), within the Criminal Division of the DOJ in Washington, D.C. See Exs. G, K, L. Indeed, from late 2007 to May 2008, Epstein's attorneys attempted to convince senior attorney at CEOS that Epstein had not committed any federal crimes, and they 9 EFTA00591470 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 11 of 33 submitted lengthy documents reviewing the evidence and case law, advocating the position that Epstein had only violated Florida law, if any crime had even been committed, and suggesting that the Florida state courts were the appropriate forum for adjudicating his criminal responsibility. smE ., Exs. G, V. Meetings were held between CEOS officials and Epstein's attorneys, in which Epstein sought to have the NPA overturned. See Ex. H at 1. With these ongoing feverish attempts to set aside the NPA by Epstein's attorneys, the U.S. Attorney's Office prudently proceeded with the investigation and preparation for a criminal prosecution. Ex. S, ¶ 34-36; see also Ex. R, 110. The January 2008 letters from the FBI regarding the continuing investigation of Epstein were not deceptions, as suggested by petitioners. They reflected the investigative team's view that there might well be a federal prosecution and that at least some of the victims would become prosecution witnesses at trial. Ex. S, 35-36; see also Ex. R, 1 10. On May 15, 2008, the Chief of the CEOS sent Jay Lefkowitz, Esq., a five-page letter, explaining the inquiry it conducted of the federal criminal investigation of Epstein. Ex. H. The letter concluded that "federal prosecution in this case would not be improper or inappropriate." Undeterred, Epstein next sought further review, ultimately proceeding to the Office of the Deputy Attorney General. Additional letter briefs were submitted by Epstein's attorneys to the Deputy Attorney General. Ex. V. On June 23, 2008, John Roth, Senior Associate Deputy Attorney General, wrote to Messrs. Leflcowitz and Starr, advising them that "federal prosecution of this case is appropriate." Ex. I. Mr. Roth also told Epstein's attorneys that their allegations of prosecutorial misconduct had been reviewed, and that the Office of the Deputy Attorney General saw "nothing in the conduct of the U.S. Attorney's Office that gives us any reason to alter our opinion." Id. I0 EFTA00591471 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 12 of 33 Given the extraordinary efforts that Epstein's attorneys expended to obtain higher-level review of the criminal prosecution, and the possibility that DOJ officials might relieve Epstein of his obligations under the NPA, it was only reasonable and prudent for the U.S. Attorney's Office to assume that a federal criminal prosecution of Epstein might still proceed. Seasoned prosecutors know it is folly to assume, based on defense representations, that a criminal defendant will plead guilty, or his plea will be accepted by the Court, and not prepare for trial. Indeed, a federal criminal prosecution remained a very viable possibility until Epstein entered his guilty plea to state charges, was sentenced, and performed his obligations in accordance with the NPA. Petitioners next contend the Government, in and around June 30, 2008, failed to tell "the victims that the state plea would effectively extinguish their rights to ever see Epstein prosecuted." D.E. 361 at 49. As a threshold matter, the premise of this argument is completely wrong since the victims had no "right" to see Epstein prosecuted. In American jurisprudence, "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D. 410 U.S. 614, 619 (1973). Simply put, Epstein's state plea under the NPA could not extinguish any victim's right to prosecution since no such right existed.4 4 Just as petitioners had no right to see Epstein prosecuted, they also have no right to judicial review of the U.S. Attorney's reasons for entering into an NPA with Epstein. Petitioners assail the Government, stating that "despite the fact that this case has been in litigation for more than seven years spanning several hundred pleadings, the Government does not write even a single sentence explaining why it entered into an NPA with a sex offender who had committed hundreds of federal sex offenses against young girls." D.E. 361 at 50. Despite Petitioners' insinuations, however, the Government has not set forth its rationale for entering into the NPA during the course of this litigation for the simple reason that that the Executive Branch's exercise of prosecutorial discretion is not subject to judicial review. "[D]ecisions to dismiss pending criminal charges — no less than decisions to initiate charges and to identify which charges to bring — lie squarely within the ken of prosecutorial discretion." Fokker, 818 F.3d at 742. The 11 EFTA00591472 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 13 of 33 As to the third time period, when the Government found out on Friday, June 27, 2008, at approximately 4:15 p.m., that Epstein's plea had been scheduled by state officials for 8:30 a.m., Monday, June 30, 2008, the prosecutor and the Palm Beach Police Department attempted to provide notice to all the victims. D.E. 14, 1 II; Ex. S 1 38. The prosecutor contacted attorney Edwards by phone to advise him of the state court plea hearing. (a) At that time, Edwards represented Jane Doe No. 1 and Jane Doe No. 2. (ti) This placed both petitioners on notice that Epstein would be pleading guilty on June 30, 2008, in Palm Beach Circuit Court. Petitioners' arguments and the record in this case simply do not establish that there was any violation of the petitioners' right to confer. See also Section III, supra, at 5-6. Supreme Court has repeatedly emphasized that "[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion " United States v. Batchelder 442 U.S. 114, 124 (1979), and the CVRA explicitly states that "[n]othing in th[e] [Act] 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). As the Supreme Court explained when reviewing a claim that a passive prosecutorial enforcement scheme violated the First and Fifth Amendments, the Government's broad discretion as to whom to prosecute rests largely on the recognition that the decision to prosecute is particularly ill- suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. Wayte v. United States, 470 U.S. 598, 607-08 (1985); see also Fokker, 818 F.3d at 737-738 (noting the long-settled understandings about the independence of the Executive with regard to charging decisions and concluding that "[n]othing in the [Speedy Trial Act's] terms or structure suggests any intention to subvert those constitutionally rooted principles so as to enable the Judiciary to second-guess the Executive's exercise of discretion over the initiation and dismissal of criminal charges"). 12 EFTA00591473 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 14 of 33 V. THE GOVERNMENT DID NOT VIOLATE PETITIONERS' § 3771(a)(2) RIGHT TO REASONABLE, ACCURATE, AND TIMELY NOTICE Petitioners contend that they are entitled to partial summary judgment on their claim that the Government violated their CVRA "right to reasonable, accurate, and timely notice of any public court proceeding . .. involving the crime," as set forth in 18 U.S.C. § 3771(a)(2), with respect to the Florida state court proceeding in which Epstein pled guilty to state crimes. D.E. 361 at 54-55. The law and the undisputed factual record in this case establish, however, that the Government in no way violated § 3771(a)(2). The only public court proceedings that took place involving crimes committed by Epstein occurred in state court, and the CVRA does not create any right to notice of any state court proceeding. Moreover, even if it did, the Government provided Jane Doe No. 1 and Jane Doe No. 2 with notice of Epstein's state court proceeding that, under the circumstances, was reasonable, accurate, and timely. Accordingly, petitioners' request for partial summary judgment on the claimed violation of 18 U.S.C. § 3771(a)(2) must be denied, and the Government is instead entitled to summary judgment on that claim. A. The CVRA Did Not Create a Right to Notice of Epstein's State Court Proceedings Although petitioners contend that they had a statutory right to notice of the June 30, 2008 state court proceeding in which Epstein pled guilty to state court criminal charges, the CVRA extends statutory notice rights to victims of federal crimes forfederal court proceedings. As the CVRA's legislative history reveals, the CVRA's statutory scheme is designed to confer rights upon crime victims in the federal judicial system, not in the various state judicial systems. See. e.g., H.R. Rep. 108-711, at 10, 2004 U.S.C.C.A.N. 2274, 2283 ("This section amends Title 18 to codify eight statutory rights of crime victims in the Federal judicial system.") (addressing Section 102 in Report's Section-by-Section Analysis and Discussion section) (Sept. 30, 2004). Indeed, the CVRA's general definition of "crime victim" does not include those who are harmed 13 EFTA00591474 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 15 of 33 as a result of the commission of state criminal offenses. 18 U.S.C. § 3771(e)(2)(A) ("The term `crime victim' means a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia."). The only provisions of the CVRA that even address state criminal proceedings are found in 18 U.S.C. § 3771(b)(2)—a provision that addresses collateralfederal habeas proceedings that arise from state criminal convictions. For purposes of such federal habeas proceedings that challenge a state conviction—but only for such purposes—the CVRA defines "the term `crime victim' [to] mean[] the person against whom the State offense is committed or, if that person is killed or incapacitated, that person's family member or other lawful representative." 18 U.S.C. § 3771(b)(2)(D). Federal prosecutors do not have any obligation to provide notice of such federal habeas proceedings or of any state court proceeding. See 18 U.S.C. § 3771(b)(2)(C) ("This paragraph relates to the duties of a court in relation to the rights of a crime victim in Federal habeas corpus proceedings arising out of a State conviction, and does not give rise to any obligation or requirement applicable to personnel of any agency of the Executive Branch of the Federal Government.").5 5 Petitioners argue that the Epstein's June 30, 2008 state court proceeding was a "court proceeding" within the meaning of the CVRA "because the NPA was directly involved in the proceedings in state court." D.E. 361 at 54 & n.176. If, as petitioners contend, the terms "court" and "court proceeding" in the CVRA included state courts and state court proceedings, then the CVRA would impose obligations on state courts and govern state court criminal proceedings anytime that a state proceeding involved a criminal offense that could also be charged federally, see. e.g., 18 U.S.C. § 3771(b)(1)—but the CVRA simply does not extend to state courts or state court proceedings. See, e.g., State v. Skipwith, 123 A.3d 104, 108 & n.6 (Conn. App. Ct. 2015) (rejecting applicability of CVRA to state proceeding). The "courts" and "court proceedings" addressed in the CVRA are only federal courts and federal court proceedings. Indeed, the only trial court other than a federal district court that has been included within the scope of the CVRA's provisions is the Superior Court of the District of Columbia. See 18 U.S.C. § 3771(e)(3). Moreover, under petitioners' argument, state court rulings would be subjected to review by federal courts. See. e.g., 18 U.S.C. §§ 3771(d)(3) and (e)(1)(A). Any interpretation of the CVRA that would extend the Act's reach to regulate state courts and state court criminal 14 EFTA00591475 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 16 of 33 B. The Government Provided Reasonable, Accurate, and Timely Notice of Epstein's State Court Proceedings Even if federal prosecutors had an obligation to provide notice of state court proceedings, the Government provided Jane Doe No. I and Jane Doe No. 2 with reasonable, accurate, and timely notice of the Florida state court proceeding in which Epstein entered guilty pleas to state charges. As set forth above, see Section IV, supra, at 12, when the Government learned on Friday, June 27, 2008, at approximately 4:15 p.m., that Epstein's plea to state charges had been scheduled by state officials for 8:30 a.m., AUSA Villafarla specifically called and informed Brad Edwards, the attorney for petitioners, of the date and time of Epstein's state court plea hearing. Ex. S I 38. Attorney Edwards informed AUSA Villafafia that someone would be present for him at the hearing. Id. Under the circumstances, and given Mr. Edwards' representation that someone would be present, the notice that was provided to petitioners was reasonable, timely, and accurate. VI. THE GOVERNMENT DID NOT TREAT THE VICTIMS UNFAIRLY Petitioners next claim the Government did not treat them with fairness, in violation of section 3771(a)(8). D.E. 361 at 51-53. They focus on the victim letters sent by the Government in 2008, advising them that the case was under investigation, see Ex. J, and maintain this was a deception since the NPA had already been signed. This argument is meritless since the undisputed facts reveal that there was no deception. In January 2008, when the letters were sent proceedings and provide review of state court rulings by federal appellate courts would not only lack support in the Act's text and legislative history but would also raise serious Tenth Amendment federalism concerns. See, e.g., Heath v. Alabama, 474 U.S. 82, 93 (1985) ("The Constitution leaves in the possession of each State `certain exclusive and very important portions of sovereign power.' The Federalist No. 9, p. 55 (J. Cooke ed. 1961). Foremost among the prerogatives of sovereignty is the power to create and enforce a criminal code.") (citing Alfred L. Snapp & Son. Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982); McCulloch v. Maryland, 4 Wheat. 316, 418, 4 L. Ed. 579 (1819))- 15 EFTA00591476 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 17 of 33 by the FBI, Epstein's attorneys were actively engaged in attempts to convince higher levels of the DOJ that there was no basis for a federal prosecution of Epstein and that the U.S. Attorney's Office had abused its prosecutorial discretion in negotiating the NPA. The NPA itself was attacked on a number of grounds, including the provision for compensation of Epstein's victims. Ex. K, Nov. 28, 2007 Ltr. from Kenneth W. Starr to Assistant Att'y Gen. Alice S. Fisher. The Government cannot be faulted for properly recognizing that the NPA might be set aside by the efforts of Epstein's attorneys at the DOJ, or that Epstein would fail to satisfy the terms of the NPA. The Government had continued its investigation because prudence dictated that the Government continue its investigation and preparations to be ready to move forward with a criminal prosecution of Epstein. See Section IV, supra, at 9-12; Ex. R, 1 10; Ex. S,1134- 36. Petitioners also assail the Government for agreeing with defense attorneys to stop notifying victims, and agreeing to notify victims only after Epstein entered his plea. D.E. 361 at 53. But there were legitimate reasons for the Government to delay notifying the victims of the terms of the NPA. If a prosecution of Jeffrey Epstein were to occur, the prosecution's witnesses would consist of young women who were teenaged girls when they were sexually abused by Epstein and who accepted money from Epstein for giving him sexual massages. In turn, the defendant was a wealthy and socially prominent financier, who had virtually limitless resources to investigate the backgrounds of each prosecution witness and mount a full-scale attack on each young woman's credibility. In a December 11, 2007 letter from Jay Lefkowitz to U.S. Attorney Acosta, Epstein previewed the probable impeachment of the victims, outlining claims of prior arrests for possession of marijuana and drug paraphernalia; stealing from an employer; and shoplifting. Ex. L at 9-12. 16 EFTA00591477 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 18 of 33 Under these circumstances, it was completely appropriate for the Government to avoid creating additional impeachment material by not alerting the victims that the Government was seeking a resolution that would facilitate their collecting money damages from Epstein. See Ex. R,19; Ex. S, 21, 34-35. In its first filing in this case on July 9, 2008, the Government explained that, after the NPA was signed in September 2007, four victims were contacted and the provision for a federal restitution remedy was discussed. D.E. 14,1 8. When Epstein's attorneys learned of this, they complained that the Government was incentivizing the victims to overstate their involvement with Epstein in order to increase their damage claims. Id. AUSA Villafafia and the FBI agents concluded that informing additional victims could compromise both the witnesses' credibility and the agents' credibility at a later trial if Epstein reneged on the agreement. Id.- Ex. R,1 9; Ex. S, 1 34. This strategic decision to limit a potential attack on the Government witnesses' credibility was a permissible exercise of prosecutorial discretion, which should not be second-guessed by means of a CVRA lawsuit. Congress provided in section 3771(d)(6) that "[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." In United States v. Thetford, 935 F. Supp. 2d 1280 (N.D. Ala. 2013), victims of a boat theft sought to reopen the defendant's guilty plea. The victims complained that the FBI failed to take possession of their stolen boat and did not bring criminal charges against the third-party purchaser of the boat. Id. at 1282. The district court rejected this claim, noting that the United States Attorney's Office retained broad prosecutorial discretion, and the CVRA did not transfer any of that discretion to victims. Id. at 1285. Relying upon § 3771(d)(6), the court stated that, [n]ot only do victims not have a veto, they do not have the right to dictate Government strategy or demand who to prosecute. Instead, 17 EFTA00591478 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 19 of 33 the Government has the right, in exercising prosecutorial discretion, to recognize "difficulties in proof of culpability." Id. at 1285. See also 150 Cong. Rec. S4260-01 (daily ed. Apr. 22, 2004) (statement of Sen. Kyl) ("This right to confer does not give the crime victim any right to direct the prosecution.")• Jordan v. Dep't of Justice, 173 F. Supp. 3d 44, 52-53 (S.D.N.Y. 2016) ("Although those who feel they are victims of federal crimes will and should attempt to convince interested agencies to pursue prosecution, they cannot dictate the manner, timing, or quantity of conferrals. . . To hold otherwise would unnecessarily and unreasonably burden the DOJ and its prosecutors."). The strategy to be employed by the Government in criminal investigations and prosecutions is plainly part of the prosecutorial discretion shielded by § 3771(d)(6). Judicially reviewing the Government's decision to avoid creating impeachment material by not telling prosecution witnesses of the potential for obtaining monetary compensation from Epstein would impair the prosecutorial discretion of the U.S. Attorney — which § 3771(d)(6) forbids. As to the scope of § 3771(d)(6), this Court has previously found that, "to the extent that the victims' pre- charge CVRA rights impinge upon prosecutorial discretion, under the plain language of the statute those rights must yield." D.E. 99 at 10. Therefore, the Government did not violate petitioners' CVRA rights by not informing them of the terms of the NPA. Petitioners nonetheless further assail those members of the U.S. Attorney's Office and the FBI who were involved in the Epstein investigation and its resolution through the NPA, claiming that they treated petitioners and other victims without fairness or respect for their dignity and privacy, but the undisputed facts in this record belie those claims. During the course of its investigation, the Government learned that many of Epstein's victims were troubled by the existence of the Government's criminal investigation and a majority expressed concern that their identities and their involvement with Epstein might be made public. Ex. R, 112. Many were 18 EFTA00591479 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 20 of 33 emotionally distressed because of the investigation and these concerns. Id. Some were reluctant to talk to the Government, and some refused to talk to the Government. Id. At the same time, during the interviews that were conducted with victims from 2006 to 2008, none expressed a strong view that Epstein be prosecuted. Id.] 13. Some, like Jane Doe No. 2, even expressed the view that nothing should be done to Epstein, provided accounts that Epstein had done nothing wrong, and/or maintained that Epstein had committed no crime. See, e.g., Ex. C; Ex. R, 1 5; Ex. S,11 10, 12, 19, 24-26, 31. Informed by these circumstances and the strengths and weaknesses of the case against Epstein, the U.S. Attorney's Office sought to resolve the matter in its prosecutorial discretion in a manner that obtained a guaranteed sentence of incarceration for Epstein, that did not subject victims to the scrutiny and travails associated with a trial, that provided victims with the equivalent of uncontested restitution from Epstein, and that guaranteed the sexual offender registration of Epstein, which would help protect other minors throughout the country in the future. Ex. S. 1 18. While the U.S. Attorney's Office did not provide victims with advance notice of the negotiated resolution, it did so to ensure that additional impeachment evidence would not be created to which the victims, prosecutor, and agents would be subjected to the detriment of a future prosecution of Epstein in the event the negotiated resolution of the investigation were not perfected. Ex. R,1 9; Ex. S, 1 21. Given these circumstances, even if the resolution of the Epstein investigation under the NPA's terms may not have been optimal and may be subject to criticism, the discretionary actions of the U.S. Attorney's Office in resolving the federal investigation as it did through the NPA simply do not constitute unfair treatment of the victims and did not fail to respect the dignity and privacy of the victims. See. e.g. Jordan supra, 173 F Supp. 3d at 54 (In analyzing whether the right to dignity has been violated, the reason for the government's assessment "is irrelevant to this analysis. Although [the petitioner] 19 EFTA00591480 Case 9:08-cv-80736-KAM Document 401-2 Entered on FLSD Docket 06/02/2017 Page 21 of 33 asks this Court to scrutinize the prosecutors' reasons, ... the CVRA bars this Court from second guessing the Government's prosecutorial decisions.") (citing 18 U.S.C. § 3771(d)(6); add'/ citations omitted). VII. THE GOVERNMENT USED ITS BEST EFFORTS TO COMPLY WITH THE CVRA Section 3771(c)(1) provides 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)." In this case, the Government did make its best efforts in notifying petitioners of their r