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National Crime Victim Law Institute

Doe v. United States, — F. Supp. 2d —, No. 08-80736-CIV-MARRA, 2013 WL 3089046 (S.D. Fla. June 19, 2013).

June 27, 2013

The government entered into a non-prosecution agreement with Jeffrey Epstein, alleged to have committed federal sex offenses against minor-victims—including knowingly recruiting, enticing and obtaining persons under the age of eighteen years to engage in commercial sex acts.  Under the agreement, Epstein agreed, inter alia, to plead guilty to two pending state charges, including solicitation of minors to engage in prostitution, and the government agreed to defer prosecution of the related federal offenses against Epstein and refrain from instituting criminal charges against certain alleged co-conspirators.  The government made the deal without first conferring with or notifying the minor-victims.  Two of the minor-victims petitioned the court to set aside the agreement on the ground that the government’s conduct violated their rights under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, including their rights to confer, to be treated with fairness, to receive timely notice of relevant proceedings, and to receive information about the right to restitution.  The government moved to dismiss the case for lack of subject matter jurisdiction, arguing that the victim-petitioners lack standing on the ground that they are unable to show that the alleged injury can be redressed by a favorable decision.

The court concluded that the government’s argument has no merit, finding that the CVRA “confer[s] certain legal rights upon ‘crime victims,’ the invasion of which creates standing to seek relief under the CVRA,” and that the victim-petitioners are “crime victims” within the meaning of the CVRA. The court also rejected the government’s additional assertion that defendant’s due process guarantees prohibit it from rescinding an otherwise valid non-prosecution agreement, finding that the CVRA expressly contemplates that a court may reopen a plea or sentence in order to remedy a post-charging rights violation.  The court construed the CVRA as implicitly authorizing the rescission or “re-opening” of a pre-charging prosecutorial agreement made in violation of a victim’s conferral rights because “there is no logical reason to treat a ‘non-prosecution agreement’ … any differently from a ‘plea agreement’ … in interpreting remedies available under the CVRA.”  The court explained that the victim-petitioners’ injury is not the government’s failure to prosecute the offender in federal court, but rather its failure to meet its CVRA conferral obligations.  Because the victim-petitioners are only requesting that the court set aside the agreement to allow them to exercise their conferral rights before the government makes a final charging decision, the court concluded that the victim-petitioners have identified a remedy that will likely redress their injury.  The court also rejected the government’s assertion that the redressability prong of the standing test requires the victim-petitioners to show that the requested remedy will lead to the possibility of a different charging outcome. 

The government also argued, in the alternative, that the victim-petitioners’ CVRA claims are not ripe for consideration because the victim-petitioners have failed to allege that they have been denied their rights to confer with federal prosecutor’s offices in two other states that share jurisdiction to prosecute Epstein.  The court concluded that this argument lacks merit as well, explaining that whether the victim-petitioners’ conferral rights exist with prosecutorial authorities in other jurisdictions has no bearing on the ripeness of their CVRA claims against the local prosecutorial authority that formally accepted the case for prosecution.  For these reasons, the court denied the government’s motion to dismiss and lifted the order staying discovery pending the resolution of this motion.