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National Crime Victim Law Institute

Jane Doe 1 v. United States, --- F. Supp. 3d --- , No. 08-80736-CIV-MARRA, 2019 WL 761702 (S.D. Fla. Feb. 21, 2019)

March 01, 2019

Minor-victims of sex crimes at the hands of defendant Jeffrey Epstein and co-conspirators, brought an action against the United States alleging violations of the Crime Victims’ Rights Act (“CVRA”), 18 U.S.C. §3771, related to the United States Attorney Office’s execution of a non-prosecution agreement (“NPA”) with Epstein.  The minor-victims moved for partial summary judgment, and the United States filed a cross-motion for summary judgment.  The court began its determination by reciting the following facts “as culled from affidavits, exhibits, depositions, answers to interrogatories and reasonably inferred, for the purpose of these motions.”  Between 1999 and 2007, defendant Epstein abused more than 30 minor girls, including the two named petitioners and victims in the case.  Defendant brought and caused others to bring under-aged victims over state lines for the purpose of his and others’ sexual gratification.  As victims in the case, the victims were entitled to, and received assurances that, they would have their CVRA rights accorded, including the reasonable right to confer with the attorney for the United States in the case, and to be heard at any public proceeding.  Without input from the victims, defendant and the federal government formally reached an agreement whereby the United States would defer federal prosecution in favor of prosecution by the state of Florida.  They then entered into a NPA reflecting the agreement, which included a provision for the appointment of a victim representative, payment to the victims, and a waiver of any other claims for damages.  The government neither conferred with the victims about the NPA, nor told the victims that such an agreement was under consideration.  Rather, the government deliberately kept the NPA secret from the victims.  Based on letters the victims did receive, they believed that the investigation was ongoing and that the government would contact them before reaching any final decisions.  Subsequently, defendant pleaded guilty in state court, in connection with the NDA.  The victims received notice that defendant would be pleading guilty, but were not told that they had a right to be heard at that hearing, and were not told that the hearing would serve to bar the prosecution of the case in federal court.  Later, the government sent a notification letter to some of the victims, which contained a written explanation of the civil compensation provisions of the NPA, but did not provide the full terms of the NPA.  A month later, the two victim-petitioners filed a motion seeking release of the NPA, and the prosecutor subsequently informed them, via a notification letter, that the U.S. government had agreed to defer federal prosecution in favor of the state plea and sentence.  The victim-petitioners then moved for summary judgment on their victims’ rights claims, arguing that the government violated their CVRA rights to confer, to be treated with fairness, and to reasonable and accurate notice in its handling of the NPA. 

 

In ruling on the motions, the court described that “[t]he CVRA was designed to protect victims’ rights and ensure their involvement in the criminal justice process.”  It authorizes the rescission or reopening of a prosecutorial agreement, including a pre-charging NPA, reached in violation of the prosecutor’s conferral obligations under the statute.  The court found that it is undisputed that the government entered into an NPA with defendant without conferring with the victims during its negotiations or before signing the agreement.  Instead, the government actively concealed the NPA.  “At a bare minimum, the CVRA required the Government to inform Petitioners that it intended to enter into an agreement not to prosecute Epstein,” even though the NPA was contingent upon defendant signing the agreement.  “Thus, Petitioners and the other victims should have been notified of the Government’s intention to take that course of action before it bound itself under the NPA.”  The court explained that had the victims been informed about the government’s intention to forego federal prosecution of defendant, petitioners could have conferred with the attorney for the government and provided input, and the government would have been able to ascertain the victims’ views on the NPA.  “Indeed, it is this type of communication between prosecutors and victims that was intended by the passage of the CVRA.”   The court concluded that the government’s concealment of the NPA from the victims was “particularly problematic[,]” and explained that “[w]hen the government gives information to victims, it cannot be misleading.”  The court found the government’s interpretation of the CVRA, which would only require it to answer inquiries by crime victims and would not impose a duty on the prosecutor to give notice of developments beyond those explicitly provided in 18 U.S.C. 3771(a)(2) (public court proceedings or parole proceedings, or the release or escape of the accused), to be overly narrow, as the CVRA intended an expansive definition of the right to confer.  The court continued: “The expansive context of the CVRA lends itself to only one interpretation; namely, that victims should be notified of significant events resulting in resolution of their case without a trial.”  Accordingly, the CVRA must extend to conferral about NPAs.  Finally, the court addressed the government’s argument that its prosecutorial discretion permitted it to enter into the NPA by noting that it was not ruling that the decision not to prosecute was improper, rather, it was ruling that there was a violation of the victims’ rights under the CVRA.  The court ordered that the victims’ motion for summary judgment be granted, denied the United States’ cross-motion for summary judgment, and ordered that the “parties should confer and inform the Court within 15 days of the date of entry of this Order how they wish to proceed on determining the issue of what remedy, if any, should be applied in view of the violation.”