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Eleventh Circuit Holds It Cannot Side With Epstein Victims, Despite Claiming It Wanted To

NEW YORK, NY - JULY 08: US Attorney for the Southern District of New York Geoffrey Berman announces charges against Jeffery Epstein on July 8, 2019 in New York City. Epstein will be charged with one count of sex trafficking of minors and one count of conspiracy to engage in sex trafficking of minors. (Photo by Stephanie Keith/Getty Images)
By Joseph Fawbush, Esq. on April 15, 2020 3:23 PM

We can't rule in your favor, a split panel on the Eleventh Circuit told a group of 30 women victimized by notorious sexual predator Jeffrey Epstein, but we don't like it either.

That was the crux of a recent Eleventh Circuit decision finding that the Crime Victims Rights Act does not apply to Epstein victims linked to the non-prosecution of Epstein in 2008. This is because rights under the CVRA do not trigger until the government prosecutes an alleged crime, at least in the Eleventh Circuit. The Fifth Circuit has held otherwise, and district courts are divided.

The Crime Victims Rights Act

The CVRA, first passed in 2004, gives crime victims a catalog of rights under federal law, including the right to be notified of any public court proceeding and the right to confer with the attorney for the government in a federal prosecution.

The Epstein non-prosecution in 2007-08, which the majority in the decision called a “national disgrace," clearly violated this right – if it applied. The question before the Eleventh Circuit, therefore, was whether the government's failure to do its job also resulted in the victims failing to have rights under the CVRA.

The Infamous Non-Prosecution Agreement

Some quick background on the case in case you've forgotten. In 2007, federal prosecutors in Florida secretly entered into a non-prosecution agreement with Epstein's lawyers after the FBI conducted a two-year investigation of Epstein's sex trafficking ring. Prosecutors failed to confer with any of Epstein's victims about such an agreement. At the request of Epstein's lawyers, the federal government failed to inform his victims of the NPA until a year after the government entered into it. In trying to keep this agreement secret, the majority on the Eleventh Circuit panel wrote that “the government's efforts seem to have graduated from passive nondisclosure to (or at least close to) active misrepresentation."

The district court, in 2019, found that the CVRA did apply pre-charge, and the fallout from the case led to the resignation of then-U.S. Labor Secretary Alexander Acosta, who was the federal prosecutor responsible for the shockingly lenient agreement with the child predator.

CVRA Only Applies After Charge

Despite the majority's admission that the district court's reasoning “is not implausible", Judge Kevin Newsom wrote that they “reluctantly" read the CVRA “most naturally" to mean that it does not apply pre-charge. As such, Epstein's victims impacted by the 2008 NPA had no rights under the CVRA, and their requested relief is denied.

Everyone Weighs In

In a concurring opinion, Judge Bard Tjoflat wrote to stridently disagree with the dissent, which he claimed “created a model" that would violate “the constitutional principle of separation of powers" by interfering with prosecutorial discretion.

In her dissent, Judge Frank Hull wrote that the CVRA conveyed two rights to Epstein's victims – the right to confer with the government's attorney and the right to be treated fairly. Judge Hull argued that the text of the CVRA did not justify the majority's “bright-line, post-indictment only restriction the Majority adds to the statute," noting that one section of the CVRA provides venue rights “if no prosecution is underway." Judge Hull agreed with Judge Tjoflat that the CVRA does not force a prosecutor to prosecute, but it does, specifically, "give the right of victims to speak with a prosecutor before the prosecutor makes that decision."

The result of the decision is that the non-prosecution deal with Epstein remains in place, overturning the lower court. For now, there is no indication the petitioners will appeal.

Related Resources

Epstein NPA Invalidated Due to Prosecutorial Violation (FindLaw's U.S. Eleventh Circuit Blog)

Delaying Is a Lawyer's Best Friend, Isn't It? (FindLaw's Strategist)

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