In re Wild

955 F.3d 1196

IN RE: Courtney WILD, Petitioner.

No. 19-13843

United States Court of Appeals, Eleventh Circuit.

April 14, 2020

Paul Cassell, University of Utah College of Law, SALT LAKE CITY, UT, Bradley James Edwards, EdwardsPottinger, LLC, FORT LAUDERDALE, FL, for Petitioner.

Richard Christian Komando, Bradley Garrison & Komando, ORANGE PARK, FL, for Amicus Curiae.

Nathan Parker Kitchens, Jill E. Steinberg, U.S. Attorney's Office, ATLANTA, GA, for Mandamus Respondent.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida, D.C. Docket No. 9:08-cv-80736-KAM

Before NEWSOM, TJOFLAT, and HULL, Circuit Judges.

NEWSOM, Circuit Judge:

This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims’ Rights Act of 2004. Petitioner Courtney Wild is one of more than 30 women—girls, really—who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her petition, Ms. Wild alleges that when federal prosecutors secretly negotiated and entered into a non-prosecution agreement with Epstein in 2007, they violated her rights under the CVRA—in particular, her rights to confer with the government’s lawyers and to be treated fairly by them.

Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein’s hands, only to be left in the dark—and, so it seems, affirmatively misled—by government lawyers, we find ourselves constrained to deny her petition. We hold that at least as matters currently stand—which is to say at least as the CVRA is currently written—rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered. It’s not a result we like, but it’s the result we think the law requires.

I

The facts underlying this case, as we understand them, are beyond scandalous—they tell a tale of national disgrace.

Over the course of eight years, between 1999 and 2007, well-heeled and well-connected financier Jeffrey Epstein and multiple coconspirators sexually abused more than 30 minor girls, including our petitioner, in Palm Beach, Florida and elsewhere in the United States and abroad. Epstein paid his employees to find minor girls and deliver them to him—some as young as 14. Once Epstein had the girls, he either sexually abused them himself, gave them over to be abused by others, or both. Epstein, in turn, paid bounties to some of his victims to recruit other girls into his ring.

Following a tip in 2005, the Palm Beach Police Department and the FBI conducted a two-year investigation of Epstein’s conduct. After developing substantial incriminating evidence, the FBI referred the matter for prosecution to the United States Attorney’s Office for the Southern District of Florida. Beginning in January 2007, and over the course of the ensuing eight months, Epstein’s defense team engaged in extensive negotiations with federal prosecutors in an effort to avoid indictment. At the same time, prosecutors were corresponding with Epstein’s known victims. As early as March 2007, they sent letters advising each one that "as a victim and/or witness of a federal offense, you have a number of rights." The letters, which the government distributed over the course of about six months, went on to enumerate the eight CVRA rights then in force—including, as particularly relevant here, "[t]he reasonable right to confer with the attorney for the [Government] in the case" and "the right to be treated with fairness and with respect for the victim’s dignity and privacy."

By May 2007, government lawyers had completed both an 82-page prosecution memo and a 53-page draft indictment alleging that Epstein had committed numerous federal sex crimes. In July, Epstein’s lawyers sent a detailed letter to prosecutors in an effort to convince them that, in fact, Epstein hadn’t committed any federal offenses. By September, the sides had exchanged multiple drafts of what would become an infamous non-prosecution agreement ("NPA"). Pursuant to their eventual agreement, Epstein would plead guilty in Florida court to two state prostitution offenses, and, in exchange, he and any coconspirators (at least four of whom have since been identified) would receive immunity from federal prosecution.¹ In June 2008, Epstein pleaded guilty to the state crimes as agreed and was sentenced to 18 months’ imprisonment, 12 months’ home confinement, and lifetime sex-offender status.

The district court found that "[f]rom the time the FBI began investigating Epstein until September 24, 2007"—when the government formally executed the NPA with Epstein—federal prosecutors "never conferred with the victims about a[n] NPA or told the victims that such agreement was under consideration." Doe 1 v. United States , 359 F. Supp. 3d 1201, 1208 (S.D. Fla. 2019). Worse, it appears that prosecutors worked hand-in-hand with Epstein’s lawyers—or at the very least acceded to their requests—to keep the NPA’s existence and terms hidden from victims. The NPA itself provided that "[t]he parties anticipate that this agreement will not be made part of any public record" and, further, that "[i]f the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure." Moreover, at approximately the same time that the sides concluded the NPA, they began negotiating about what prosecutors could (and couldn’t) tell victims about the agreement. Seemingly in deference to Epstein’s lawyers’ repeated requests, the government held off—for nearly an entire year—on notifying Epstein’s victims of the NPA’s existence.

And to be clear, the government’s efforts seem to have graduated from passive nondisclosure to (or at least close to) active misrepresentation. In January 2008, for example, approximately four months after finalizing and executing the NPA, the government sent a letter to petitioner stating that Epstein’s case was "currently under investigation," explaining that "[t]his can be a lengthy process," and "request[ing her] continued patience while [it] conduct[ed] a thorough investigation." The government sent an identical letter to another victim in May 2008, some eight months after inking the NPA.²

If secrecy was the goal, it appears to have been achieved—there is no indication that any of Epstein’s victims were informed about the NPA or his state charges until after he pleaded guilty. On the day that Epstein entered his guilty plea in June 2008, some (but by no means all) victims were notified that the federal investigation of Epstein had concluded. But it wasn’t until July 2008—during the course of this litigation—that petitioner learned of the NPA’s existence, and until August 2008 that she finally obtained a copy of the agreement.

We are doubtlessly omitting many of the sad details of this shameful story. For our purposes, we needn’t discuss the particulars of Epstein’s crimes, or the fact that the national media essentially ignored for nearly a decade the jailing of a prominent financier for sex crimes against young girls.³ Today, the public facts of the case are well known—Epstein was eventually indicted on federal sex-trafficking charges in the Southern District of New York, and in August 2019, while awaiting trial, he was found dead in his jail cell of an apparent suicide.

II

In July 2008, petitioner brought suit in the United States District Court for the Southern District of Florida, styling her initial filing an "Emergency Victim’s Petition for Enforcement of Crime Victim’s Rights Act." As the district court explained, "because no criminal case was pending" at the time—no federal charges having been filed against Epstein or anyone else—petitioner "filed [her] petition as a new matter ... which the Clerk of Court docketed as a civil action." Does v. United States , 817 F. Supp. 2d 1337, 1341 n.4 (S.D. Fla. 2011). Petitioner alleged that she was a "crime victim" within the meaning of the CVRA and that by keeping her in the dark about their dealings with Epstein, federal prosecutors had violated her rights under the CVRA—in particular, her rights "to confer with the attorney for the Government in the case," 18 U.S.C. § 3771(a)(5), and "to be treated with fairness and with respect for [her] dignity and privacy," id . § 3771(a)(8).⁴

Over the course of the ensuing decade, the district court issued a number of significant rulings. For our purposes, three of the court’s orders are particularly important.

Initially, in 2011 the district court "addresse[d] the threshold issue whether the CVRA attaches before the government brings formal charges against the defendant." Does , 817 F. Supp. 2d at 1341. The court held that "it does because the statutory language clearly contemplates pre-charge proceedings." Id . As relevant here, the district court relied principally on two CVRA provisions in so holding. First, it pointed to 18 U.S.C. § 3771(c)(1), which the parties here have called the Act’s "coverage" provision. That subsection—of which much more later—states that "[o]fficers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)." The district court held that "[s]ubsection (c)(1)’s requirement that officials engaged in ‘detection [or] investigation’ afford victims the rights enumerated in subsection (a) surely contemplates pre-charge application of the CVRA." Does , 817 F. Supp. 2d at 1342. Second, the court pointed to subsection (d)(3), which the parties here call the "venue" provision and which...