Office of Legal Counsel memo on victim rights may have blocked victim participation in Epstein and other white‑collar plea deals

84 CASSELL ET AL. [Vol. 104 the victim has an opportunity to be heard by the court, and by the Government, before the court accepts the plea.”!* But OLC failed to recognize that its interpretation of the CVRA rendered the night to be heard a nullity in many important cases—including, notably, the Epstein case.'* Where prosecutors and defense attorneys work out a nonprosecution agreement that agreement will never be presented to a court for review. Thus, in cases where the need for victim participation may be the greatest—that is, in cases where the Government is considering never filing any charges—OLC’s interpretation would bar victims from having any rights at all. Even in situations where a prosecutor works out a plea agreement, OLC’s interpretation is problematic. As OLC recognizes, prosecutors and defense counsel commonly work out pre-indictment plea agreements (particularly in white-collar cases), under which a defendant will plead guilty to certain charges.'* Then, the parties jointly present to the district court a criminal “information” (that is, a recitation of the charges drafted by the prosecutor but never presented to the grand jury'**) and a plea agreement, asking the court to file the criminal information and simultaneously accept the guilty plea) As the OLC memorandum acknowledges, a crime victim would have the nght to object to the plea agreement, because the CVRA gives crime victims the “right to be reasonably heard” at any public proceedings involving a plea.'*” But under OLC’s interpretation of the CVRA, a crime victim has no nght to notice of court hearings until the charges are filed. Thus, if the information and plea are filed simultaneously, as is often the case, two scenarios are possible. A victim could have no prior right to notice of the proceeding at which the plea was being accepted, or alternatively (if the act of filing the information in the course of accepting a plea triggers a notification right), the district court would be required to stop in the middle of proceedings and ensure that notification was belatedly provided. Of course, these difficulties are all avoided if the right to confer is properly construed as attaching before charges are filed, such as during plea negotiations between prosecutors and defense attorneys. #3 Id. “4 The OLC opinion was publicly released on May 20, 2011. Perhaps not coincidentally, this release date was shortly before the Government filed its response in the Epstein case. 45 See OLC CVRA Rights Memo, supra note 2, at 9 (acknowledging the potential effect of the CVRA on plea negotiations). 46 See FED. R. CRIM. P. 7(b). 47 18 U.S.C. § 3771 (a4) (2012), OLC CVRA Rights Memo, supra note 2, at 6-7. HOUSE_OVERSIGHT_014063