Court rulings expand victims' rights under CVRA to pre‑charge proceedings, potentially affecting Epstein non‑prosecution agreement

Page 11 of 31 104 J. Crim. L. & Criminology 59, *74 were expansive and could apply before charges were filed but were subject to the outer limit that the Government has at least "contemplated" charges. 7! Similarly, in United States v. Oakum, ” the District Court for the Eastern District of Virginia considered a claim that CVRA rights did not apply until after a defendant had been convicted. In rejecting that argument, the court agreed with the Dean court that victims acquire rights even before a prosecution begins. The District Court for the Northern District of Indiana held to the same effect in In re Petersen. 7* There, the court held that a victim's right to be treated with fairness and with respect for [his or her] dignity and privacy "may apply before any prosecution is underway and isn't necessarily tied to a "court proceeding' or "case." 7° The court, however, found that the "conclusory allegations" in the victims' petition did not "create a plausible claim for relief under the CVRA." 7° [*75] Perhaps the most extensive discussion of this issue has come from the Epstein case discussed earlier. 7’ Overruling the Government's argument that the CVRA only applies after the formal filing of charges, Does v. United States held that "the statutory language clearly contemplates pre-charge proceedings." 78 The court in Does explained that "court proceedings involving the crime are not limited to post-complaint or post-indictment proceedings, but can also include initial appearances and bond hearings, both of which can take place before a formal charge." 7? The court also noted that the CVRA's "requirement that officials engaged in "detection [or] investigation’ [of crimes] afford victims the rights enumerated in subsection (a) surely contemplates pre-charge application of the CVRA." ®° Finally, the court in Does noted that "if the CVRA's rights may be enforced before a prosecution is underway, then, to avoid a strained reading of the statute, those rights must attach before a complaint or indictment formally charges the defendant with the crime." °! In sum, the relevant case law unanimously agrees that the CVRA extends rights to crime victims before charges have been filed. 7 Id. at 419 (internal citation omitted). Rubin's suggestion about limitations that apply to pre-indictment assertions of rights is discussed at notes 184-187 and 193 infra and accompanying text. ? No. 3:08cr132, 2009 WL 790042 (E.D. Va. Mar. 24, 2009). 3 Td. at 2. ™ No, 2:10-CV-298 RM, 2010 WL 5108692 (N.D. Ind. Dec. 8, 2010). 75 Id. at 2 (citing In re Dean, 527 F.3d 391, 394 (Sth Cir. 2008); United States v. BP Prods. N. Am. Inc., H-07-434, 2008 WL 501321 (S.D. Tex. Feb. 21, 2008)). 76 Id. Petersen also held that one specific CVRA right - the right to confer - only applies after charges have been filed. Id. But the authorities Petersen cites for that proposition prove no such thing. Confusingly, Petersen cited the Fifth Circuit's ruling in Dean for support; but (as just explained above) Dean held exactly the opposite. Similarly, Petersen cites other cases involving the right to confer after charges have been filed. Id. But none of these cases actually presented the issue of the CVRA's application to pre-indictment situations, since charges had already been filed in each of these cases. See, e.g., Jn re Stewart, 552 F.3d 1285, 1289 (11th Cir. 2008). 77 Does v. United States, 817 F. Supp. 2d 1337 (S.D. Fla. 2011). % Jd. at 134]. ® Td. 80 Id. at 1342. 81 Td. Recently, the district court in the Does case also rejected Government efforts to dismiss the action. The district court found that, if the victims could prove the factual allegations they have made, then they would be entitled to relief, including potentially the relief of invalidating the nonprosecution agreement that Epstein obtained from the Government. Does v. United States, No. 9:08-cv-80736-KAM, 2013 WL 3089046, at 3 (S.D. Fla. June 19, 2013). DAVID SCHOEN HOUSE_OVERSIGHT_017614