Case Document Entered on FLSD Docket Page of investigated by the Federal Bureau of Investigation FBI in favor of prosecution by the State of Florida and refrain from instituting criminal charges against certain alleged co-conspirators of Epstein Further the USAO/SDFL and Epstein expressed their anticipation that the agreement will not be made part of any public record Additionally the USAO/SDFL promised to provide Epstein advance notice before disclosing the agreement in response to a Freedom of Information Act request or compulsory process commanding disclosure DE pp II Factual Background As outlined in their CVRA petition and supplemental pleadings filed in this action petitioners allege the following sequence of events which the court assumes to be true at the motion to dismiss stage In the Federal Bureau of Investigation opened an investigation into allegations that Epstein had been inducing minor females to engage in commercial sexual activity over the preceding five year period of time The United States Attorneys Office for the Southern District of Florida accepted the case for prosecution and in June and August the FBI issued standard The agreement enumerated certain federal offenses which the FBI and the United States Attorneys Office determined may have been committed by Epstein between through including conspiracy to use and the use of facilities of interstate commerce to persuade induce or entice minor females to engage in prostitution in violation of U.S.C conspiracy to travel and travel in interstate commerce for purpose of engaging in illicit sexual conduct with minor females in violation of U.S.C knowingly recruiting enticing and obtaining persons under the age of eighteen years to engage in commercial sex acts in violation of U.S.C a See Cole United States F.2d I th Cir inreviewing motion to dismiss for lack of subject matter jurisdiction under Fed Civ reviewing court must assume as true all factual allegations in the complaint Case Document Entered on FLSD Docket Page of victim notification letters to the petitioners Jane Doe No and Jane Doe No On September the USAO/SDFL entered into the above-described non prosecution agreement with Epstein without first conferring with petitioners and without alerting them to the existence of the agreement either before or promptly after the fact Petitioners claim they were kept in the dark about the agreement for roughly nine months with no mention of the federal deal made in intervening correspondence and verbal communications between petitioners the FBI and the local United States Attorneys Office On June the Assistant United States Attorney assigned to the Epstein case contacted petitioners counsel to advise that Epstein was scheduled to plead guilty to certain state court charges on June without mentioning that the anticipated plea in the state court was a term of the pre-existing non-prosecution agreement with the federal authorities On July petitioners counsel sent a letter to the USAO/SDFL advising that Jane The government appears to concede the non-conferral stating in its reply brief While it may be true that the USAO-SDFL did not inform Petitioners and confer with them about the Non-Prosecution Agreement before it signed that agreement the USAO-SDFL had conferred with both of the Petitioners about the potential prosecution of Epstein and was aware that Jane Doe wished to see Epstein prosecuted and that at that time Jane Doe had expressed open hostility toward any prosecution of Epstein DE page The post-agreement communications are alleged to include a May letter from the USAO/SDFL to a recognized victim advising that the case is currently under investigation and that it can be a lengthy process and we request your continued patience while we conduct a through investigation In addition the USAO/SDFL allegedly sent a letter to the victims counsel in June asking them to submit a letter expressing the victims views on why federal charges should be filed against Epstein without mentioning that the USAO/SDFL had already entered into the non-prosecution agreement Case Document Entered on FLSD Docket Page of Doe No wished to see federal charges brought against Epstein I Procedural History On July Jane Doe No filed an emergency petition under the CVRA contending that Epstein was currently involved in plea negotiations with the USAO/SDFL which may likely result in a disposition of the charges in the next several days CVRA Petition DE Claiming to be wrongfully excluded from those discussions Jane Doe asserted the violation of her CVRA rights to confer with federal prosecutors to be treated with fairness to receive timely notice of relevant court proceedings and to receive information about her right to restitution As relief she requested entry of an injunction directing the United States Attorneys Office to comply with the provisions of the CVRA prior to and including any plea or other agreement with Epstein and any attendant proceedings On July the government filed its response disclaiming application of the CVRA to pre-charge negotiations with prospective defendants Alternatively the government contended it did use its best efforts to comply with CVRA notice and conferral requirements in its dealings with Jane Doe On July the court entertained a hearing on the initial petition During the course of that proceeding the court allowed an amendment of the petition to include Jane Doe No as a complainant The government acknowledged at that time that both petitioners met the definition of crime victims under the CVRA Case Document Entered on FLSD Docket Page of Over the course of the next eighteen months the CVRA case stalled as petitioners pursued collateral civil claims against Epstein The CVRA case was administratively closed on September and then re-opened at petitioners request on October Since then petitioners have submitted a Motion for Finding of Violations of the CVRA and a supporting statement of facts DE On September the court entered its order partially granting the petitioners motion for a finding of violations of the CVRA recognizing that the CVRA can apply before formal charges are filed against an accused The court deferred ruling on the merits of the motion pending development of a full factual record and authorized petitioners to conduct limited discovery in the form of requests for production of documents and requests for admissions directed to the U.S Attorneys Office with leave for either party to request additional discovery as appropriate DE On November the government moved to dismiss the entire CVRA proceeding for lack of subject matter jurisdiction DE and successfully sought a stay of discovery pending resolution of that motion DE In its current motion to dismiss the government first contends that even assuming that the CVRA was violated as petitioners claim petitioners lack standing to seek redress for those violations because the remedy petitioners seek a vacating or re-opening of the non-prosecution agreement is not a legally viable option at this juncture Alternatively the government argues that petitioners CVRA claims are not constitutionally ripe because petitioners have a present ability to confer with prosecutorial authorities in other jurisdictions namely the United States Attorneys Offices of the District of New Jersey and New Yark which share jurisdiction and venue over the federal offenses potentially chargeable against Case Document Entered on FLSD Docket Page of Epstein for crimes committed in this District Thus the government asserts that it is premature and speculative for petitioners to bring a claim for the prospective denial of CVRA conferral rights rendering their current claims constitutionally unripe These arguments are addressed in tum in the discussion which follows IV Discussion The core component of standing is an essential and unchanging part of the case-or controversy requirement of Article I Lujan Defenders of Wildlife U.S Ct L.Ed.2d To satisfy Article Is minimum standing requirements a plaintiff must generally show it has suffered an injury in fact i.e the invasion of a legally protected interest that is concrete and particularized as well as actual or imminent the injury is fairly traceable to the challenged action of the defendant and it is likely as opposed to merely speculative that the injury will be redressed by a favorable decision Id at Here the government contends petitioners are unable to satisfy the third prong of this test on the theory it is legally impossible for petitioners to obtain the relief which they seek the vacating of the non-prosecution agreement as a predicate to the full and unfettered exercise of their CVRA conferral rights and that they are therefore unable to show a likelihood that the CVRA injury alleged will be redressed by a favorable decision in the case More specifically the government contends that rescission of an otherwise valid plea or non-prosecution agreement i.e an agreement containing no illegal terms or conditions is prohibited by constitutional Due Process guarantees even if entered in violation of the CVRA Alternatively the government argues that even if the court could set the agreement aside and order the government to confer with petitioners before arriving at a final prosecutorial decision regarding Epstein the gesture would be futile The Case Document Entered on FLSD Docket Page of government claims that the United States Attorneys Office for the Southern District of Florida would still be legally bound to abide by the terms of the September agreement,5 eliminating the possibility that exercise of petitioners conferral rights under the CVRA might lead to a different federal charging outcome The court disagrees As a threshold matter the court finds that the CVRA is properly interpreted to authorize the rescission or re-opening of a prosecutorial agreement including a non-prosecution arrangement reached in violation of a prosecutors conferral obligations under the statute Clearly the statute contemplates such a result where under the enforcement and limitations provision the conditions under which a victim may make a motion to re-open a plea or sentence in order to remedy a failure to afford a right provided under the CVRA are specifically prescribed If the governments theory was correct i.e that no otherwise valid plea may be disturbed notwithstanding a CVRA violation as a matter of constitutional due process guarantees the statutory prescriptions for re-opening a plea or sentence reached in violation of the CVRA would effectively be nullified The court will not embrace such a strained construction of the statute The government acknowledges that the USAO/SDFL has been recused by the Department of Justice for prospective responsibility of any further criminal investigation or potential prosecution of Epstein relating to his alleged sexual activities with minor females in the Southern District of Florida and that responsibility for any future prosecutorial action arising out of Epsteins alleged criminal activity in this district has now been assigned to the United States Attorneys Office for the Middle District of Florida Government Motion to Dismiss page 8DE However it contends without explanation that the September non-prosecution agreement would still constrain the Middle District of Florida United States Attorneys Office due to that offices recusal based derivative prosecutorial responsibilities in the Southern District of Florida Government Motion to Dismiss page 13DE Case Document Entered on FLSD Docket Page of Although this particular statutory enforcement provision expressly refers to the re-opening of a plea or sentence events falling in the post-charge stage of criminal proceedings the court concludes that the statute is properly interpreted impliedly to authorize a re-opening or setting aside of pre-charge prosecutorial agreements made in derogation of the governments CVRA conferral obligations as well First the court concludes that the reasonable right to confer in the case guaranteed by the CVRA at a is properly read to extend to the pre-charge stage of criminal investigations and proceedings certainly where as here the relevant prosecuting authority has formally accepted a case for prosecution The case law and legislative history of the statute support such an expansive reading of the statutory mandate See United States BP Products North America Inc WL at S.D Tex unpub citing Cong Rec daily ed Apr statement of Senator Feinstein explaining that the right to confer was intended to be expansive applying to any critical state or disposition of the case and United States Heaton Supp 2d Utah government motion to dismiss charge of using facility of interstate commerce to entice minors to engage in unlawful sexual activity would not be granted until government consulted with victim United States Ingrassia WL at Senate Debate supports view that contemplated mechanism for victims to obtain information on which to base their input was conferral with prosecutor concerning any critical stage or disposition of the case and United States Department of Justice Attorney General Guidelines for Victim and Witness Assistance Responsible officials should make reasonable efforts to notify identified victims of and consider victims views about prospective plea negotiations Case Document Entered on FLSD Docket Page of In short there is no logical reason to treat a non-prosecution agreement which the government employs to dispose of contemplated federal charges any differently from a plea agreement employed to dispose of charged offenses in interpreting remedies available under the CVRA Where the statute expressly contemplates that a plea may be set aside if entered in violation of CVRA conferral rights it necessarily contemplates that a non-prosecution agreement may be set aside if entered in violation of the governments conferral obligations Thus in their petition and supplemental pleadings Jane Doe and have identified a remedy which is likely to redress the injury complained of the setting aside of the non-prosecution agreement as a prelude to the full unfettered exercise of their conferral rights at a time that will enable the victims to exercise those rights meaningfully See BP Products North America supra at Section requires government officials to use best efforts to give victims notice of their rights under subsection including the right to confer at a time that will enable the victims to exercise these rights meaningfully Thus petitioners do not lack constitutional standing because of an inability to identify a remedy for their alleged injury Nor is the court persuaded by the governments futility argument derived from its stated perception that the United States Attorneys Office for the Southern District of Florida and derivatively the United States Attorneys Office for the Middle District of Florida would be constrained to honor the terms of the September agreement even if the court were to set it aside and order the government to confer with the victims before reaching a final charging decision Case Document Entered on FLSD Docket Page of The fallacy with this strand of the governments standing argument derives from its misidentification of the alleged injury sought to be remedied in the case The victims CVRA injury is not the governments failure to prosecute Epstein federally an end within the sole control of the government Rather it is the governments failure to confer with the victims before disposing of contemplated federal charges This injury can be redressed by setting aside the agreement and requiring the government to handle its disposition of the Epstein case in keeping with the mandates of the CVRA including the pre-charge conferral obligations of the government The court rejects the notion that a victim must show the likelihood or at least a possibility of a prosecution as a pre requisite to demonstrating standing for redress of conferral rights under the CVRA which is the fundamental premise of the governments futility argument What the government chooses to do after a conferral with the victims is a matter outside the reach of the CVRA which reserves absolute prosecutorial discretion to the government U.S.C Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction While the law of standing does require as a general proposition that a federal plaintiff show some logical nexus between the asserted injury and the claim sought to be adjudicated i a likelihood that the relief sought is likely to vindicate the injury Linda R.S Richard U.S Ct L.Ed 2d these requirements apply only in the absence of a statute expressly conferring standing Id at Congress may enact statutes creating leal rights the invasion of which creates standing even though no injury would exist without the statute citing Trafficante Metropolitan Life Ins Co U.S Ct L.Ed 2d It is apparent through the passage of the CVRA that Congress has enacted Case Document Entered on FLSD Docket Page of a statute expressly conferring certain legal rights upon crime victims the invasion of which creates standing to seek relief under the CVRA even though no cognizable injury would exist without the statute It is also apparent that the petitioners in this case meet the definition of crime victims conferred with standing to assert the subject CVRA claims The CVRA at defines a crime victim as a person directly and proximately harmed as a result of the commission of a Federal offense In the Eleventh Circuit a two-part test is employed to determine whether an individual qualifies as a crime victim under this statute First the court must identify the behavior constituting the commission of a Federal offense Second the court must identify the direct and proximate effects of that behavior on parties other than the United States In re Stewart F.3d th Cir If the criminal behavior causes a party direct and proximate harmful effect the party is considered a victim under the CVRA Id at The non-prosecution agreement at issue refers to five distinct federal sex offense crimes involving minors contemplated against Epstein the direct and proximate harmful effects of which were allegedly visited upon the petitioners plainly qualifying them as crime victims within the meaning of the CVRA As such they have standing to assert rights under the CVRA as they have done in this case See e.g United States Thetford,_ Supp 2d __ WL N.D Ala Presented with these claims the court is obligated to decide whether as crime victims petitioners have asserted valid reasons why the court should vacate or re-open the non prosecution agreement reached between Epstein and the USAO/SDFL Whether the evidentiary proofs will entitle them to that relief is a question properly reserved for determination upon a fully Case Document Entered on FLSD Docket Page of developed evidentiary record In sum the petitioners standing is expressly conferred by the CVRA which limits its protections to crime victim defined as persons directly and proximately harmed as a result of the commission of a Federal offense U.S.C The court finds and the government does not dispute that petitioners are persons directly and proximately harmed as the result of federal offenses allegedly committed by Epstein This concludes the proper confines of the standing mqmry Recognizing the need for a developed evidentiary record the court accordingly rejects the governments related estoppel argument as an independent attack on petitioners constitutional standing to sue In this vein the government argues that the petitioners are legally precluded from seeking rescission of the non-prosecution agreement under any scenario because they had but forfeited an opportunity to press for rescission at an early stage in these CVRA proceedings before Epstein performed his part of the bargain i.e before he served jail time on the two state charges Due to petitioners counsels initial indecision on whether to seek rescission as expressed at an earlier hearing held in August the government argues that ven assuming arguendo that the CVRA would allow a victim to seek rescission of a non prosecution agreement between the government and an uncharged individual petitioners action would legally preclude them from obtaining such a remedy in these proceedings Whether petitioners are estopped from seeking vindication of their CVRA conferral rights via the vehicle of rescission or a re-opening of the non-prosecution agreement due to an earlier litigation posture assumed in this case as the government contends implicates a fact-sensitive equitable defense which must be considered in the historical factual context of the entire interface between Epstein the relevant prosecutorial authorities and the federal offense victims including an assessment of the allegation of a deliberate conspiracy between Epstein and federal prosecutors to keep the victims in the dark on the pendency of negotiations between Epstein and federal authorities until well after the fact and presentation of the non-prosecution agreement to them as a fait accompli As with threshold questions going to the existence of the alleged CVRA violations questions pertaining to this equitable defense are properly left for resolution after development of a full evidentiary record Case Document Entered on FLSD Docket Page of Ripeness The ripeness doctrine under which a plaintiff lacks standing if his claim is not ripe aims to prevent the courts through avoidance of premature adjudication from entangling themselves in abstract disagreements over administrative policies Pashby Delia F.3d th Cir Brennan Roman Catholic Diocese of Syracuse New York Inc Fed Appx WL th Cir unpub In this case the government contends that the petitioners CVRA conferral claims are not constitutionally ripe because petitioners do not allege they have sought and have been denied conferral with all federal prosecutorial authorities having potential jurisdiction over Epsteins federal sex crimes in the Southern District of Florida Specifically the government argues that the United States Attorneys Office of the Districts ofNew Jersey and New York share jurisdiction with the United States Attorneys Office for the Southern District of Florida over federal sex offenses allegedly committed by Epstein in the Southern District of Florida and that petitioners CVRA conferral claims are not ripe unless and until all other relevant prosecutorial authorities refuse or fail to confer with them regarding federal offenses chargeable against Epstein The court summarily rejects this argument Petitioners have alleged a violation of their CVRA conferral rights against a federal prosecutorial authority which formally accepted the case against Epstein for prosecution Whether conferral rights do or do not exist with prosecutorial authorities in some other jurisdiction does not detract from the ripeness of this claim against a local federal prosecutorial authority which did actively investigate potential charges against Epstein in this district and formally resolved those charges with the challenged non-prosecution agreement at Case Document Entered on FLSD Docket Page of issue in this action I Conclusion Based on the foregoing it is ORDERED AND ADJUDGED The governments motion to dismiss for lack of subject matter jurisdiction DE is DENIED The stay of discovery pending ruling on the governments motion to dismiss entered November DE is LIFTED DONE AND ORDERED in Chambers at West Palm Beach Florida this th day of June cc All counsel Kenneth A Marra United States District Judge _SEALED 6oTSEALED
