Case Document Entered on FLSD Docket Page of al.owed the defendant a billionaire with extraordinary political connections to escape all fderal prosecution for dozens of serious federal sex offenses against minors On July the Government also filed with this Court a response to the Petitioners pt:tition for enforcement of her CVRA rights In its response the Government argues that it did nc,t need to confer with Petitioner because there was no formal court proceeding pending at the time the Government negotiated this non-prosecution agreement This position ignores the plain language of the CVRA which extends the right to confer to any case not any co 1rt proceeding and flies in the face of the Fifth Circuits recent decision that is squarely on point In re Dean F.3d th Cir Perhaps in recognition of the weakness of its position the Government goes on to argue that it used its best efforts to comply the CVRA But the Vernment never conferred with Petitioner about the agreement so the Governments efforts fall well short of affording Petitioner her right to confer Finally the Government clainIS that it disclosed some of its activities to Petitioner in this case identified as C.W in the Governments papers But neither Petitioner nor undersigned counsel were ever notified of the proposed non prosecution agreement To the contrary undersigned counsel was advised that a federal in:lictment was in the works For all these reasons the Governments response lacks mt:rit The urt should therefore declare the proposed non-prosecution agreement an illegal one sinct it was reached in violation of the CVRA and order the Government to confer with Petitioner and the other victims in this matter before reaching any disposition in this case The Government also apparently proposes to keep its activities in this case secret by filing documents under seal It bears emphasizing that none of the pleadings in this matter discloses either directly or indirectly the identity of a minor victim In light of this fact the Government Case Document Entered on FLSD Docket Page of bears a heavy burden in deviating from the ordinary rules a burden it has not carried Th1:!re is no sound basis for keeping the pleadings in this matter sealed Moreover the matter is one of exceptional public interest involving what appears to Petitioner to be a sweetheai1 non pnsecution agreement for multiple sex crimes against children committed by a well connected billionaire Accordingly the papers in this case should be lodged in the Courts public file I THE GOVERNMENT HAS VIOLATED Case Document Entered on FLSD Docket Page of Petitioner that if you believe that the rights set forth above e.g the right to confer and other CVRA rights are being violated you have the right to petition the Court for relief Id at If there were any doubt that the drafters of the CVRA intended for its rights to extend to pre-indictment situations they disappear in light of the CVRAs instruction that a crime victim seeks to assert rights in pre-indictment situations should proceed in the court where the crime was committed The rights described in subsection a of the CVRA shall be asserted in the district in which a defendant is being prosecuted for the crime or if no prosecution is 225derway in the district court in the district in which the crime occurred U.S.C emphasis added Petitioner noted the importance of this language in her opening Petition see Emergency Victims but the Government chose not to discuss it in its reply In a case remarkably similar to this one the Fifth Circuit has recently held that victims have a tight to confer with federal prosecutors even before any charges are filed In In re Delln F.3d th Cir a wealthy corporate defendant reached a generous plea al 1th the Government a deal that the Government concluded and filed for approval with the di trict court without conferring with the victims When challenged on a mandanms petition by the victims the Fifth Circuit held Id at The district court acknowledged that there are clearly rights under the CVRA that apply before any prosecution is underway BP Prods WL at U.S Dist LEXIS at Logically this includes the CVRAs establishment of victims reasonable right to confer with the attorney for the Government U.S.C a At least in the posture of this case and we do not speculate on the applicability to other situations the government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims views on the possible details of a plea bargain Case Document Entered on FLSD Docket Page of As we understand the Governments response it asks this Court to decline to follow the Fifth Circuits holding and create a split of authority on this important issue See Govt Response at Notably the Government does not cite any cases supporting its position Instead the Government would have this Court deviate from the Fifth Circuits well-reasoned opinion because the Circuits discussion of the scope of the right to confer was unnecessary because the co Jrt ultimately declined to issue mandamus relief Govt Response at citing Dean F.3d at This is simply untrue The Fifth Circuit faced a petition for mandamus relief from the victims in that case asking that a proposed binding plea agreement negotiated under Fed Crim i.e a plea agreement obligating the judge to impose a specific sentence be rejected The victims asked for that relief because of the Governments failure to confer ith them before the charges and accompanying plea agreement were filed The Fifth Circuit held hat tre victims rights had been violated in the passages quoted above It then went on to remand he matter to the district court for further consideration of the effect of the violations of the victims rights We are confident however that the conscientious district court will fully consider the victims objections and concerns in deciding whether the plea agreement should be accepted The decision whether to grant mandamus is largely prudential We conclude that the better course is to deny relief confident that the district court will take heed that the victims have not been accorded their full rights under the CVRA and will carefully consider their objections and briefs as this matter proceeds F.3d at Obviously the Fifth Circuit could not have instructed the District Court to take h:!ed of the violations of victims rights unless it has specifically held as a matter oflaw that he victims rights had been violated The Governments next effort to deflect the force of the Fifth Circuits decision is that the Case Document Entered on FLSD Docket Page of Circuit did not directly quote three words found in the CVRAs right to confer the words in the case See Govt Response at But the Fifth Circuit had received briefs totaling close to pages in that case and was obviously well aware of the statute at hand Indeed in the very paragraph the Government claims is troublesome the Fifth Circuit cited to the district co Jrt opinion under review which had quoted all the words in the statute See United States BP Products WL at noting victims right to confer in the case cited in In re Dean F.3d at The Government finally notes that the Fifth Circuit properly stated that its ruling a.bout the Government violating the right to confer applied in the posture of this case F.3d at 1t the posture of this case at least in its relevant aspects is virtually identical to tht posture there The Fifth Circuit held that the Government had an obligation to confer with the victims fore charges 276ere filed and before a final plea arrangement was reached Without giving the victims a chance to confer before hand the plea agreement might be fatally flawed because it did not consider the concerns of the victims Thus the Fifth Circuit emphasized the need to confer with victims before any disposition was finally decided The victims do have reason to befa:ve that their impact on the eventual sentence is substantially less where as here their input is received after the parties have reached a tentative deal As we have explained that is why conclude that these victims should have been heard at an earlier stage Id at Tht posture in this case is exactly the same the Government should have conferred before the parties eached a tentative deal The fact that the deal reached here is slightly different than the deal reached in the Dean case a non-prosecution agreement versus a plea agreement is truly a distinct:ton without a difference If anything the facts here cry out for conferral even more than in Case Document Entered on FLSD Docket Page of that cast At least the defendant there agreed to plead guilty to a federal felony Here the we.ilthy defendant has escaped all federal punishment a plea deal that Petitioner would have strenuously objected to if the Government had given her the chance The Fifth Circuits decision in Dean has been cited in one very recent District Comt decision which provides further support for Petitioners position here In United States Rubin WL E.D.N.Y the victims argued for extremely broad rights under the CVRA After citing Dean the District Court agreed that the rights were expansive and could apply before indictment but subject to the outer limit that the Government be at lellit contemplating charges Quite understandably movants perceive their victimization as having begun long before the government got around to filing the superseding indictment They also believe their rights under the CVRA ripened at the moment of actual victimization or at least at the point when they first contacted the government Movants rely on a decision from the Southern District of Texas for the notion that CVRA rights apply prior to any prosecution In United States BP Products North America Inc the district court reasoned that because provided for the assertion of CVRA rights in the district court in which a defendant is being prosecuted for the crime or if no prosecution is underway in the district court in the district in which the crime occurred the CVRA clearly provided for rights that apply before any prosecution is underway United States BP Products North America Inc Criminal No WL at S.D.Tex Fcb.21 emphasis in original mandamus denied in part In re Dean No WL I th Cir May But assuming that it was within the contemplation and intendment of the CVRA to guarantee certain victims rights prior to formal commencement of a criminal proceeding the universe of such rights clearly has its logical limits For example the realm of cases in which the CVRA might apply despite no prosecution being underway cannot be read to include the victims of uncharged crimes that the government has not even contemplated It is impossible to expect the government much less a court to notify crime victims of their rights if the government has not verified to at least an elementary degree that a crime has actually taken place given that a corresponding investigation is at a nascent or theoretical stage Id at Here of course the criminal investigation went far beyond the nascent or theoretical RHd??k SL tu?p a pCC p?B 2x i t?W zE k??z ڤ??o VD"B I C?t Bl"q a0 A ʍ??RPE?t쉖 E?A?;hZ c?N A It?i??5m?m KI?mW??A ih?a a0 D?B??H t?OT OO?7 Z.?C?Lv 4h 1O K?v?m zt?dp??2 D?4N a Zi?A h?v xj wT??u?ׯ i?_z a I?ȹ I 8mz wˠ wI?i a Ɖ?a ڗKȐ iZ?D?a l0 د?m xO?uy4 z??R xoE Wn HK?H _J?ߺ?Bݾ?pn?t W?w ɧݪ v?k t?h?"v Rf lV mڭ?u?ч NӺ N;cݸn?M?m0 A?O?O?miW?u M?M?M?N8 w?B x_kP Zli i5j?a i rF 0??hEY a P?L v?l4 p??a4fa0?R i i 8A 4Ȯ IȎ?9 I Za6 i?i lSLA lU??/?W?OۿmZa S3 I EHD2 dXV?j i6?m 6?K?W?Dp 0L a U?pL0?B dGN?Ј DA UL7 dI Bp?M3?j r?d T0?S;V??Gz?D Bc C?ZO?8 H4 a fΌ d8 a T?n xA I5?i h蝆 V?x?w E?a 7h?酴 3S µŢc??o M0?L A r_ W?p?o??m ڸi 2I?h m4 i i A T?N?O Kir ႑?I?uj?v 8a czK??5?kz 7x k?뮝i xOM P?m Dt?ߑ?Ҏ zհ?7M?E _U?H 5i u?w?on U?P DZ _k _e a s?u a?N z?im mw?o?oAq i l?d vH w?j?SA b??Brb M4?i Tէz A i i A L0?M?Ӑ?m T?q UXE ꁔ?E?TO??j?DqaZ?Y i ޢ?ҋ Q?AՊ q?f??NM S?T?I RJ I?I m3 ݠ?M k??W?o i??lf 0E S?kZW R?ɽ PP d?q 9?kȑ Pj/L b?B D?a B?Ba B!K k??N k?ڭ:?7ޝCzM??I??A oE?D za A?aBh a P?Dǂ Rv?_ dx B?m A XL a tI k??u Rt??i?y M?Xӆ A?hh a 0L g?k M?c x?I?U R?zmm,0?J?K H??i ސA?A?l"v Bi A A u?ITR vޑ8a OU A6 e?RK k?K?-?iu _a UI v?C l?OɺW i?B?wk j?j?J CN v?o??a?d vHZ?ޘ mPO i k?A6?V A??N?S AZ?ņ I?a v?ۦҿ Kȅ??DDC j?cY 0??ama ڿ??H rP)?M hXB!??p a OV yl??a pa a I?a4 OM??OcB i1 Xb a lSI i?dG j9?tv A?dc a0I5H QԦӄ?V a3?d w1??zil WX;?xP?v D;A X쒢?i??d A dS Ra_Z BÔ zU p?a a aI h?"?xf?l f?V 뤝??/QwL a0A I h?aB a0 i RA S?l CF D?裦?mdK?"?t?E t?y i?øL h0A i P?(d Z?Nޔt?J?m,4?N?CD 4Hp aWP aA 3Q A A?E a4 a4 R?Iz c?u?A p?r I xA M?g Uk?m?_ U??m 0??hXD?t A2 up md Pe ZJs?u n?y ރ?a?q C?J??hєy mW?AwL?o w?m Wi ߺa i??v7E t?Tӈ Ɵ??w z??hW?OT?u Km?Kd KK Z?-õ _I p?z??i O?d a ɢIk T?UUo??KX _M nӇ m?W רI?kҭW?M??y v?IiW WUIp n?X??ҽ mX??v zw?ߦ u놚i4 IXi lU Kwl?W_ I IR?H?U A?lBT A??v?pҤ 3lj ut?n oդ m5 5j Һo K?a w?U?Z??J Hp Rl(A i?j Wݭ xjy LBOA?I??T?I??V?W ma?n I חY yG?_ M?aS a 5j?Ӿ hj z??K?V?LDA?u?a Z??TBb i??N?JB M?NM I M?W PT M6?j?i U??IU B?zb c?rb DD h0 t?v AAXa m?a P?CA B;??EE?H:I Ui a 3?FcJd??:V?n?H??NS H2 8v 쯤Eʂo?A?6?V i ԑ??p z??w??NںM?m Ç?B հ?A4 _K?Ɪ?A?uP e??I Vҭu?w?PO?wI?z??о p?u 7TB ߵw gk z??yƾ?y zL m?V Qa ABj A i A??g z??H?Z a4 A?A f?t"??Nd 0Gi Bm A?I A h"p A a F٠?qB 5פ 7t?J Ku A?E ݿW 8z H6?r?V 8i LD?!pZk C_ a?cN?Tȃ?BY A6 I G?xb t?U 7?ɕk?k?b _P?I CG??k zצ K?uK?m?l"?o_B RB Cm 3I I j?k??J I mPi a ׯ??tX?u A??T?E A G?U WMWI?A a 0L a Bt iU MS??i?ڋ vȎ I7Xr oi 뭧?n??D0A i6?N a 8ak??k?A M6 ثXi K?CiRGF A??L a?d j??Iɰ aI 0D WTG?k??.ߝֈ v?L?n qX?Я?7ڸ?AF?!??Nՙ A2m?v?Ui Q??dt U?u?z Ba4 GS7?g 5g٠짏 ga 80Mb?M l?Q I6 B?iT XD C?P aP i PA a a Y?O?u A E?h 0D At?4zt?Ga:N t?dX vЍ a ȮK_?v??I M?l a0L a y8 t?v?p dΚސ ڢ?p Z??wzV?zM ү?!u?Ɔ?N?B?X2X i D?N 8k KⶼS wս oO U?ZZ Ua Q?r1 O?HK?b?JJ W?굯?U i I HP WP?p f鿆 I dg lB I חG??m.??Uo We KC I?m q?k a i ƚk a?Q lU i vյ?Lr??ow _??w?q4GBᑎP?I?A Ot??G??s iD iZN?u?D?U?K A4 I7 i?a k?c?m4?dt?a l?f Vڥ W?C?GXDDA D0 1L aRo ޚ?/V?W A?i?ڎ?X?Mm i L?b i a A??ӆ cM Oi??Ր?ݴ A DC M5 qJ?Qi ib I v?3L 8a 7i ՊAi AHDD0A Z?B a0 v6 OB?E fI_T զ?J??H??HG P??w Ԃg ʫ?f h;?.B??udA it KPt 2s 4x gAA t?g??ۄHv?A A aO 2L?d莗9 3f XwL aA MM?M Ht?l0Q l!l f??U?u Zt I u?I?ń A U?j?K?ګxN o?K 3?wE?a aBa Li ǑtF i??zo?I I N?Th5 fl RZ;Έ?k O?z a m5o?K?m E?B E?D??v Ih dW Wa V?aj?Bw aR j??ބ A_ k?v?mo I p?a xi k?U?Jw??u J?v?c a l/o?ڽ a N??T?kӋ?r a??I O?I G?mZȗ կk?B?K 2b D4 l??XM v?N lU5 X?Ԭ rcaS aqL??1MV?I?S?I E?a H0?L4?O?VD dz A??i Jׯm ж?Bu?4?LSi4?j I5N j?km i 4ȏiC dh7 A??t??kZ n?W u?k?h SVlh i0 a I v?x A a ha Ԅ9 A MƁ 4M?T KV??T I?zw?w?/_W??ikӮȶ?I??j5 B?ꡯ??к?ߢI i I Za?/n C_ H??b O?O Su Ks??ҵ J?v i?q_?pn I?VB I dGI Pi DDd?T_?B EWA a Z?OT?aa qP?(L4?v aDA?7 L?p?A0PRlPA?靃d?I?i?KY gqRm 骙S;?M??m vz?W?C?5 lE O_?T?F s?fF?k MBa p?m6 a0?x CC F?w aBj?"f ð?D AS A ud?0D O?t I?ڤ"?;oH i CC3 骽?OOL zpȹ?yޤ A6 v?H7 kE?P i 0U 4?fa G?kE U?i J?h h?g?C cҮ?WM l8dGN?t?a CD D?oA0?h zu ޝ?C kڏv?Ƹ?j??U i?IޞB?Z i I kZZ?_ oJ?_ q?O?_O a k?O?a?r Qq a K_ i?a??o k?i mu xoK 굿U?_ Zw ar H?z??W m??O G?H?ױ i??w?Q t??oծ T?ߥ?o?C V?6?XڻJ??h?m ק??u??iv i N6 7K a z?K??ZY M1 j?-ի 1J _ץ?O jE?N?dp?GA??A??b?-:?I??MHL ߤ?i?z?h L_?k rmF B4 i?co m0?zt?a n(r a A??T?MӧM;L 2a mX Ra PM a kdXME A?j m?M?ൖ xb A,DE DC DY1а?t a a iX??0J?i Fn IÅ N?XT??R?Fi k
L ýxD2 F?r d8?A D??gS ڄ?w a f!;.g?dQ u"B ӽuO?N D??h?a i CͳA Ft T??T Da a4 B?i S?5DȀD 7M S??YB?G?OW?Ф xa??I??S fl dK"?J k?Nզ?O??I8d d?NҶ pp?a5T?Ba h?FK?5 t?I i A hZ.?Dᄃ A ff C2 T?W p?W I?A:?hM p?a V?r zO B4?a v?I?ד RI?_ Z?K h2 nBł?Xh i?ݧ pW B?rXW G?B?K Y2 Iv V?V?V?w? ޝ io oJ쉔 i?k a Zi j?U mS A iv ai4?M6 a ZA?B v?i??in N?y a j뷥 g?h u"?M ئ?GH6 Ȣ?W?z xdn 4ڴ k?0M M?O 8a A;N z?Lkl i??A Nлa V?m H??DFM v?ia?d6 a I?8A?R xA?a DD QLB?P 3V izI V?IKO?4?f?M HTB M?Y-fl?B?PL?2??ۅ US C?i o?A z۱ t?t?O?駤 ڧ?W??v q?3e a vJ?i Rva?B 꺯?y m?D za ŵ?F?e ҽ??i T?jE Sƃ ȶ?K 9;T?j?kd i 7?KXB0?a A?c S?l?2FzO o?v?J?dc p?ki tN qa0 0A A ND A꽹 8d v?xM?a4?l U?m q??a i A C5 mzm I??t kE?iB b?v?K?Ok?װ?m շޟ I?r Mץ?z?V?6ӆG?K ߍ?k??鴿?O?S?M okI?ݭ?/?m b?U G?Q?Q?d?lR p?ix i 4N?wvQ??Q XiS v??w Kz Oﰞ??iv?j?I w?Mu b?SM I??n l?I h5N i?p?ح2 I A?D Dt?lv?L j?ݬU?S k??Z?W hlC5 dA?i xN a?km D꿿??A a0 PN-4 p?M M1lq R?V e??a I ڪF A J??cv V??A a I id?Y Y,MSL dX M3?J"?eH?O u
es5p?Tha2.?-gsEQ h(Z 8?t?(Zzzy Yت A ꪚ??efʾ?A f?5AH?MT?n i k꿿y?ZxD?0??p w?j wD?R xA Nڄ/v P?L rdB oҿ?uݩ.Ӷ?l xж??m NGFGD??W?ZV _R A L?sA þ?t?L0I6?l A A yxݤN?B"?i 3C 4C F?z I??zI?B4 i h?I xZ??t I 렃mRn.??!?R RM w?p?uZ BF _U?k?o ޜ4 i??H z?oN D?Z F?Z?Oz?V yG_ lU 궽??r H/?i ƭ1 iH הK?WIu?R Oi i?եi?!4ױ M0 dv LS i?"cM m??It?m YJ A??i E?MRi??n?mR lU?LT0 v??jE a h4 I 0??Lm1Lv?H vB U??S aQU a4 A a I??ݵ XB O??m XM B!?hD l/b?a I u?B i Hv aL i?mB 3V ga a?k??/h6KP?y?pS S?_j A ZT?u 靁nKRM ƛA?0 A5eКNl?W wׯ??OT 蛴N蛴Lp a u?j 0?oE?Q8ha?D?M 2x?l Ү?;k??zj Ӈ?t kE?a?Æ A XM4 8Y i _o?S 8dW-ȸ jA?ӆ A TҮ?u??Q?J?o_?n ڲ3 p?i ſY?E?l?H,٦uQ_ mt?0P?oگ?ݡ??o?mW_ 7O X2V A 0R,Rp?z v?X I n?k?R HV uz S?z wl H_ z?"q K?ۯ?Z?S Tki-?W?ث??鵯?W 5HE a J?qڼ a??C?L 0?h?Pf Bm M?N?a A a 4?cm M?q M?a V?M z?v Z??q a I h7m i_ 톕v?v D0?A V?V i I?m X?N9 A 4?M?LI?ݦ M??j v?Kk)?C 4?aBdp A6 A?A??iD0B a va ɽ?v 9U Ɂ?v Di?C2 tGi?D3 a T?UM?M g??6jlSC"h Q?d i??Dt?u a Ь2 M?i C?l!z L?M 8h c??A A O?B?z 8p UA Q8a 4g?Ђ zQ?7 m?l 7i PT u?T Ӿ?G I?m _d 5gDAʷI Kj?j?k ޓ?l?M I a3A g?g H.?zART?bU DdF j?RK??ꖮ dq0 a qI?"n T??I w?n t?ii I?K 0Z?E?SP հ?궩?䪯 K??P C?N I4 oZ?lt??H?Z _J z?U iR?د?7 kJ?T?_ T?G J?V?V HVHK in W??j Ua k?u _J ץZ?U o?j?U_ W?u??k p?t?o?e?iZ?W?V?V CI:??j?W Z??ߠ?J z?jU I?N?a J?i?D??W a KZP?0 Case Document Entered on FLSD Docket Page of stage to a point where the Government determined that crimes had been committed and that the defendant should plead guilty to either a state or federal offense For all these reasons the Court should follow the Fifth Circuit and hold that Petitioner and the other victims in this case had the right to confer with the Government before it reached its non-prosecution agreement THE GOVERNMENT HAS NOT USED ITS BEST EFFORTS TO COMPLY WITH THE CRIME VICTIMS RIGHTS ACT The Government next argues that it has somehow used its best efforts to comply with the CVRA in this case Govt Response at The bulk of the Governments arguments concern varous notices that it sent to victims Buried in the middle of these arguments is the Governments stark concession that proves Petitioners claim The specific terms of th negotiation were not disclosed prior to a final agreement being reached because the Government believed doing so would jeopardize and prejudice the prosecution in the event an agreement could not be made Govt Response at emphasis added In other words Petitioner and th many other victims of the defendants federal sex offenses was dehberately kept in the dark about the fact that the Government was planning to reach a deal that would permit the defendant to escape all federal punishment in favor of an 18-month county jail sentence This bald d1 cisio11 to conceal from the victims what was happening violated the basic premise of the Crime Victim Rights A::t that victims deserve to know what is happening in their cases Congress wa m::emed that in the federal system crime victims were treated as non-participants in a critical event in their lives They were kept in the dark by prosecutors too busy to care enough and by a court system that simply did not have a place for them CONG REC Apr statement of Sen Feinstein To remedy this problem Congress gave victims the simple Case Document Entered on FLSD Docket Page of right to know what is going on to participate in the process where the information that victins and their families can provide may be material and relevant Id The CVRA required the Government to confer with Petitioner and consider her views about the proposed arrangement in this case Indeed the Governments own regulations require prosecutors to consider victims views about prospective plea negotiations U.S.DEPT OF Ju mcE OFFICE FOR VICTIMS OF CRIME ATTORNEY GENERAL GUIDELINES FOR VICTIJl,fS AND WilNESS ASSISTANCE Congress obviously intended for victims to have a meaninghl rol in the criminal justice process The Fifth Circuit recently confronted and rejected a very similar claim from the Government that it did not need to meaningfully confer with crime victims There tl-e Governments purported justification for failing to confer was the risk of pre-trial publicity to the defandant The Fifth Circuit summarily dismissed that argument holding Congress made the policy decision which we are bound to enforce that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached Id c.t In this case too this Court is bound to enforce Congress decision that prosecutors confer with victims before reaching a plea agreement The Government is not entitled to pick and choose which particular cases it wiill giw victims the right to confer In support of its remarkable position the Government ites a provision in the CVRA that provides that nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction U.S.C But the Government made the same argument in the Dean case and lost The Fifth Circuit reversed the District Court decision that enforcing the right to confer might impair Case Document Entered on FLSD Docket Page of prnsecutorial discretion with the following statement Giving the right to confer to victims is not an infringement as the district court believed on the governments independent prosc:cutoral di cretion instead it is only a requirement that the government confer in some reasonatle wc.y with the victims before ultimately exercising its broad discretion Moreover the Governments asserted justification for failing to confer is transparently flimsy asserts that if the victims had been told that the plea agreement gave them advantages in civil litigation against the defendant then that would have provid ed Epstein the means im:,eaching the victim witnesses Govt Response at But obviously the victirns were already subject to impeachment on that ground even if no plea agreement was ever reached The defense attorneys presumably would have asked all of the victims at any criminal trial abo Lit thf possibility that they could pursue civil litigation against the defendant if he was co:nvictel The plea agreement did not change the obvious fact that a criminal conviction whether by plea agreement or by jury trial would facilitate civil claims by the victims of the defendants crimes In light of all this this Court should reach the obvious conclusion The Government did no1 use its best efforts to protect the rights of Petitioner and the other victims in this ca:;e when it failed to confer with her about the non-prosecution agreement I THE GOVERNMENT DID NOT CONFER WITH Case Document Entered on FLSD Docket Page of victims If the Government is asserting that Petitioner was told that a non-prosecution agreeme1t had been reached with the defendant as early as October Petitioner strongly disputes this alfoged fact To the contrary undersigned counsel was told by federal prosecutors within the last days that a federal indictment was under consideration Petitioner does not believe that the Government is truly asserting that she was told about a non-prosecution agreement because elsewhere in its brief the Government makes the opposi:e assertion he specific terms of the negotiation were not disclosed prior to a final agreeme,1t being reached because the Government believed doing so would jeopardize and prejudice the prosecution in the event an agreement could not be made Govt Response at emphasis added Because of the confusion about what the Government is truly asserting Petitioner requests an opportunity to address the facts directly with the Court at the hearing If necessary Petitioner also requests leave of Court after the hearing to provide whatever supplement1l information by way of affidavit or otherwise that would be needed to prove that she was never told that the Government was considering a federal non-prosecution agreement with the defendant much less given a chance to confer with the Government on this extraordinarily lenient disposition IV THE COURT SHOULD ENTER AN ORDER DIRECTING THE GOVERNMENT TO CONFER WITH THE Case Document Entered on FLSD Docket Page of th non--prosecution agreement illegal and direct that the Government proceed to negotiate a mw agreement in a process that respects Petitioners and the other victims rights The non-prosecution agreement here violates federal law As described by t1e Government the victims have not been even given the courtesy of a copy of the agreement be agreement prevents federal prosecution of the defendant for numerous sex offenses Yet the agreement was reached without giving Petitioner her right to confer a violation of U.S.C a Vben other plea arrangements have been negotiated in violation of federal law they have been stricken by the courts For example United States Walker F.3d 7th Cir held that where a sentence on a new crime could not run concurrently with a probation revocatiCtn tht defendant was then serving contrary to the assumption of the parties to the plea agreement the defendant was not entitled to specific performance of the plea agreement The Court explained that the case was one in which the bargain is vitiated by illegality Here of course exactly the same is true the non-prosecution agreement is vitiated by illegally namely the fact that it was negotiated in violation of the victims rights Other cases reach similar conclusions See e.g United States Cooper F.3d th Cir prosecutor agreed to recommend probation but it now appears that would be an illegal sentence in this case and thus the only adequate remedy is to allow defendant to withdraw the plea Craig People P.2d Colo because neither the prosecutor nor the trial court have authority modify or waive the mandatory parole period such is not a permissible subject of plea negotiations and thus even if the trial court erroneously approves of such an illegal bargain such plea is invalid and thus will not be specifically enforced Nor can the defendant claim Case Document Entered on FLSD Docket Page of some right to specific performance of an illegal non-prosecution agreement See State Garcia N.W.2d Minn plea agreement for months sentence but court added IO-year conditional release term because under facts of case a sentence without such release term was plainly dlegal and thus the remedy of specific performance not available State Wall N.C S.E.2d plea agreement was for sentence to be concurrent with one not yet completed but state statute mandates consecutive sentence on facts of this case defendant is not entitled to specific performance in this case because such action would violate the laws of thts stale Ex parte Rich S.W.3d Tex Crim App where the plea bargain seemed fair on its face when executed it has become unenforceable due to circumstances beyond the cortrol of the parties namely the fact that one of the enhancement paragraphs wi:.s mischaracterized in the indictment resulting in an illegal sentence far outside the statutory range proper remedy is plea withdrawal as there is no way of knowing whether the State would have offered a plea bargain within the proper range of punishment that he deemed acceptable State Ma?:zone W.Va S.E.2d where plea agreement was that defendart would plead guilty to felony counts of felon in possession of firearm and prosecutor would dismiss the remaining counts re other offenses with prejudice and all parties erroneously believed these crimes were felonies lower court correctly resolved this unfortunat predicament by holding that a plea agreement which cannot be fulfilled based upon legal impossibility must be vacated in its entirety and the parties must be placed as nearly as possible in the pos.itions they occupied prior to the entry of the plea agreement This Court is obligated to take steps to protect Petitioners rights Under the CVR.A in any court proceeding involving an offense against a crime victim the court shall ensure that the Case Document Entered on FLSD Docket Page of crime victim is afforded the rights described in the CVRA U.S.C The CVRA also confers on crime victims the right to assert the rights descnbed in the CVRA U.S.C Obviously there is now a court proceeding before this Court in which Petitiom is asserting rights under the CVRA This Court must therefore protect her rights declaring the non-prosecution agreement invalid THE PUBLIC IS ENTITLED TO SEE THE GOVERNMENTS EXPLANATIONS J?QR ITS EXTRAORDINARILY LENIENT NON-PROSECUTION AGREEMENT The Government has also filed its pleadings in this matter under seal There is no sound re2.son for concealing from the public the Governments explanations in this matter Accordingly the Governments pleadings should be unsealed The Government offers two explanations for sealing its pleadings First the Government clal1S that the pleading would reveal correspondence with minors Govt Motion at I But the Government has redacted the names of the minors involved including Petitioners name so there is good basis for sealing Counsel does respectfully request that the Government double check its redactions to make sure that no name has been overlooked Indeed the very statute that the Government cites U.S.C envisions that minors names will be rcdacte,j and then the remaining pleadings made available to the public See U.S.C The pernon who makes a filing involving a minor shall submit to the clerk of the court the paper with the portions of it that disclose the name of or other information concerning a child redacted to be placed in the public record emphasis added Second the Government asserts that its pleading should be kept under seal to maintain the confidentiality of the agreement reached with an interested party Govt Motion at Case Document Entered on FLSD Docket Page of Petitioner believes exactly the opposite is true confidentiality will undermine public confidence in the federal criminal justice system This case involves a non-prosecution agreement with a politically-connected billionaire that has drawn considerable public attention See e.g Palm Beach Post.Com Banker Epstein Pleads in Prostitution Case Gets Months June He lives in a Palm Bea,;h waterfront mansion and has kept company with the likes of President Bill Clinton Prince Andrew and Donald Trump but investment banker Jeffrey Epstein will call the Palm Beach County jail hone for the next months The public is entitled to know all of the circumstanc,;":s smrounding this federal non prosecution The public may well wonder as Petitioner does in thi case why a defendant who committed multiple sex crimes over an extended period of time against numerous minor victims is receiving only an 18-month jail sentence and a free pass fro:n the federal government If the Government had conferred with Petitioner she woud haYe explained why this proposed disposition did not begin to reflect the seriousness of the offense U.S.C a A The Eleventh Circuit has instructed that the district courts must make substantial findings before scaling records in cases before it For instance in United States Ochoa-Vasque F.3d th Cir it reversed an order from this Court that had sealed pleadings in a crirninal case emphasizing the importance of the publics historic First Amendment right of acce5s to the courts To justify sealing a court must articulate the overriding interest along with findings specific enough that a reviewing court can determine whether the closure order was properly entered Id at The Government has not discussed the controlling comt authority on sealing orders much less attempted to prove that there is an overriding interest Case Document Entered on FLSD Docket Page of justifying sealing For this reason the Governments attempts to keep secret what has been done in this case should be rejected and its motion for sealing of its response denied CONCLUSION The Petitioner requests the intervention of this Court to ensure that her rights are re pected and accorded as promised in the Crime Victims Rights Act The Court should enter an order finding the non-prosecution agreement in this case was negotiated in violation of the RA and therefore is illegal and invalid The Court should also deny the Governments motion to seal its pleadings in this case DA TED this 11th day of July Respectfully Submitted THE LAW OFFICE OF BRAD EDWARDS AS SOCIA TES LLC Brad Edwards Esquire Attorney for Petitioner Florida Bar Harrison Street Suite Hollywood Florida Telephone Facsimile Case Document Entered on FLSD Docket Page of CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has be provided by hand delivery in open court to the Attorney appearing on behalf of the United States Attorneys Office this day of July Brad Edwards Esquire Attorney for Petitioner Florida Bar No
