In re Wild, 955 F.3d 1196 (2020)

In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 955 Pad 1196 United States Court of Appeals, Eleventh Circuit. IN RE: Petitioner. No. 19-13843 (April 14, 2020) Synopsis Background: Alleged victim of child sexual abuse brought civil action against federal government, alleging that government violated Crime Victims' Rights Act (CVRA) by failing to confer with alleged victim before entering into non-prosecution agreement (NPA) with alleged perpetrator. Alleged perpetrator intervened. The United States District Court for the Southern District of Florida, No. 9:08-cv-80736- ICAM, Kenneth A. Marra, Senior District Judge, 359 F.Supp.3d 1201, determined that government had violated CVRA, but after alleged perpetrator's death, alleged victim's requested remedies were denied and the action was dismissed, 411 F.Supp.3d 1321. Alleged victim petitioned for writ of mandamus. (Holding:) The Court of Appeals, Newsom, Circuit Judge, held that as a matter of first impression, victim rights under CVRA, including the right to confer with government's lawyers and the right to be treated fairly by them, do not attach until criminal proceedings have been initiated against a defendant. Petition denied. Tjoflat, Circuit Judge, filed a concurring opinion. Hull, Senior Circuit Judge, filed a dissenting opinion. Procedural Posture(s): Petition for Writ of Mandamus. West Hcadnotes (9) Criminal Law 6•• Civil liabilities to persons injured; reparation Government did not waive, for consideration by Court of Appeals on alleged victim's petition for writ of mandamus, an argument that Crime Victims' Rights Act (CVRA) did not apply if criminal proceedings had not been initiated, though government did not file a cross-appeal from district court's initial determination that CVRA was applicable, which determination had been made before district court dismissed alleged victim's civil action against government because alleged perpetrator of child sexual abuse died while the civil action was pending; proceeding initiated by alleged victim was not an "appeal," and while CVRA directed Court of Appeals to apply ordinary standards of appellate review in a mandamus proceeding brought by a crime victim, CVRA did not direct Court of Appeals to employ rules of procedure for typical appeals. 18 U.S.C.A. § 3771(dX3). 121 Criminal Law iihe Civil liabilities to persons injured; reparation Victim rights under federal Crime Victims' Rights Act (CVRA), including the right to confer with government's lawyers and the right to be treated fairly by them, do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. P 118 U.S.C.A. § 3771(a)(5, 8), I it t (c)(1), (d)(3). 131 Criminal Law 4" Civil liabilities to persons injured; reparation Rights under federal Crime Victims' Rights Act (CVRA), including right to confer with federal government's lawyers and right to be treated fairly by them, had not attached when government entered into non-prosecution agreement (NPA) with alleged perpetrator of federal crimes relating to sexual abuse of minors and sex trafficking, where government had not filed charges or othenvise commenced criminal proceedings against alleged perpetrator, who pursuant to the NPA pled guilty to two state prostitution offenses. [ 1. I 18 U.S.C.A. § 3771(a) (5, 8), (dX6). WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. EFTA00073493 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 MI Statutes Construction based on multiple factors In construing a statute, the court begins with a careful examination of the statutory text, looking to the particular statutory language at issue, as well as the language and design of the statute as a whole. Statutes 4- Statute as a Whole; Relation of Parts to Whole and to One Another Statutes 4- Design, structure, or scheme Statutory construction is a holistic endeavor, and a statutory provision that may seem ambiguous in isolation may be clarified by the remainder of the statutory scheme. 161 Federal Civil Procedure 0. Motions in General A "motion" is a request filed within the context of an ongoing judicial proceeding, not a vehicle for launching a new and freestanding piece of litigation. 171 Federal Courts 4- Mandamus While a petition for a writ of mandamus is an original application to the Court of Appeals, the writ is not an independent grant of appellate jurisdiction but, rather, may go only in aid of appellate jurisdiction that exists on some other basis; thus, the minimum condition for mandamus relief is that the case be one that may lie within the prospective future jurisdiction of the Court of Appeals, or that has in fact come within its jurisdiction in the past. 181 Criminal Law ar- Preliminary examination; arraignment; appearance; bail The Sixth Amendment right to counsel does not attach until, at the earliest, a suspect's initial appearance before a judicial officer. U.S. Const. Amend. 6. 181 Constitutional Law Nature and scope in general The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a federal criminal case, and this prosecutorial discretion flows not from a desire to give carte blanche to law enforcement officials but from recognition of the constitutional principle of separation of powers. Attorneys and Law Firms *1198 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. Opinion 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. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00073494 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 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 *1199 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. I 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 I 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 *1200 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] WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00073495 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 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. 11 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. § 377I(aX5), and "to be treated with fairness and with respect for [her] dignity and privacy," t § 3771(aX8). 4Over 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, *1201 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 states that a crime victim seeking to vindicate his or her rights under the CVRA must file a "motion" either "in the district court in which a defendant is being prosecuted or, if no prosecution is underway, in the district court in the district in which the crime occurred." If, the district court reasoned, "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." Does, 817 F. Supp. 2d at 1342. Finally, the district court cited t tt In re Dean, in which the Fifth Circuit had observed that "[a]t least in the posture of th[e] case" before it—the court emphasized that it wasn't "speculat[ing] on the applicability to other situations" —the victim's right to confer with prosecutors applied pre-charge. f 1527 F.3d 391, 394 (5th Cir. 2008). Having "determined ... as a matter of law [that] the CVRA can apply before formal charges are filed," the district court here "defer[red]" ruling on the question whether federal prosecutors had violated the Act until the parties could conduct additional discovery. Does, 817 F. Supp. 2d at 1343. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00073496 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 Following another eight years of litigation, the district court issued a pair of rulings that prompted the mandamus petition now before us. In February 2019, the court found that the government had infringed petitioner's CVRA rights. See Doe 1, 359 R Supp. 3d at 1222. In particular, the court held that federal prosecutors violated the Act by "enter[ing] into a[n] NPA with Epstein without conferring with Petitioner[ ] during its negotiation and signing." Id. at 1219. "Had the Petitioner[ ] been informed about the Government's intention to forego federal prosecution of Epstein in deference to him pleading guilty to state charges," the district court emphasized, she "could have conferred with the attorney for the Government and provided input." Id. at 1218. The court concluded that it was precisely "this type of communication between prosecutors and victims that was intended by the passage of the CVRA." Id. at 1291. Having found CVRA violations, the court directed the parties —which by then included Epstein as an intervenor—to brief "the issue of what remedy, if any, should be applied." Id. at 1222. In response, petitioner proposed multiple remedies: (1) rescission of the NPA; (2) an injunction against further CVRA violations; (3) an order scheduling a victim-impact hearing and a meeting between victims and Alexander Acosta, the former United States Attorney for the Southern District of Florida; (4) discovery of certain grand-jury materials, records regarding prosecutors' decision to enter into the NPA, and files concerning law-enforcement authorities' investigation of Epstein; (5) mandatory CVRA training for employees of the Southern District's United States Attorney's office; and (6) sanctions, *1202 attorneys' fees, and restitution. In August 2019, while the court was considering the parties' briefing regarding remedies, Epstein died of an apparent suicide; his death prompted another round of briefing on the issue of mootness. In September 2019, having considered the parties' briefing and the impact of Epstein's death, the district court dismissed petitioner's suit, denying each of her requested remedies. See f Doe 1 v. United States, 411 R Supp. 3d 1321 (S.D. Fla. 2019). In its order, the district court made a number of rulings. First, it held that Epstein's death mooted any claim regarding the NPA's continuing validity, as he was no longer subject to prosecution. See id. at 1326. Relatedly, the court held that it lacked jurisdiction to consider petitioner's claim regarding the validity of the NPA as it applied to Epstein's coconspirators; any opinion regarding that issue, the court concluded, would be merely advisory because the coconspirators —as non-parties to the suit—couldn't be estopped from asserting the NPA's validity at any future prosecution. See id. Second, the court denied petitioner's request for an injunction on the ground that she had failed to show "continuing, present adverse effects" or any "real vt and immediate" threat of future CVRA violations. [ Id. at 1328. Third, the court rejected petitioner's requests for a victim-impact hearing and a meeting with Acosta on the grounds that petitioner had already participated in an Epstein- related hearing in New York, that the Epstein prosecution had concluded, and that the government had already agreed to confer with victims concerning any ongoing investigation of Epstein's coconspirators. See id. at 1328-29. Fourth, the court denied petitioner's discovery requests for grand- jury materials and investigative files. See c a id. at 1329- 40. Fifth, the court declined to order "educational remedies," as the government had already agreed to implement CVRA training for employees of the Southern District's United States Attorney's office. Id. at 1330. And finally, the court rejected petitioner's request for sanctions, fees, and restitution. See I id. at 1330-31. Seeking review of the district court's order refusing every remedy that she had sought, petitioner filed—as the CVRA directs—a petition for writ of mandamus with this Court. See 18 U.S.C. § 3771(dX3) (stating that "[i]f the district court denies the relief sought," a victim "may petition the court of appeals for a writ of mandamus"). The government filed a "brief in response" in which it not only opposed petitioner's arguments on the merits, but also raised several threshold arguments concerning the scope of the CVRA and the circumstances in which rights under the Act are judicially enforceable. In reply, petitioner contended (among other things) that by failing to "cross appeal," the government had waived its arguments about the CVRA's applicability and enforceability. 5 sits This case presents a host of issues, many of first impression. Before jumping in, we begin with an introductory summary of the CVRA. III WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00073497 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 The CVRA is a compact statute, occupying but one section (and only two pages) of the United States Code. See 18 U.S.C. § 3771. The entire Act comprises just six subsections, the pertinent portions of which we will summarize briefly. *1203 The Act opens, in subsection (a), with a catalogue of "rights" that federal law guarantees to "crime victims." (The Act separately defines the term "crime victim" to mean "a person directly and proximately harmed as a result of the commission of a Federal offense." . Id. § 3771(e)(2)(A).) The version of the CVRA in effect during the events in question here—between 2006 and 2008—stated as follows: (a) Rights of crime victims.—A crime victim has the following rights: (1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. (5) The reasonable right to confer with the attorney for the Government in the case. (6) The right to full and timely restitution as provided in law. (7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for the victim's dignity and privacy. 18 U.S.C. § 3771(a). Subsection (b), titled "Rights afforded," focuses on courts' responsibilities under the Act. It provides—as relevant here —that "[i]n any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a)." Id. § 3771(b)(1). (Subsection (b)(2) pertains to habeas corpus proceedings, in which crime victims enjoy a more limited set of rights; it isn't relevant here.) Subsection (c), titled "Best efforts to accord rights," imposes obligations on non judicial actors. One of its constituent clauses—which we introduced earlier as the so-called "coverage" provision —states as follows: Officers 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). 18 U.S.C. § 3771(cX1). Subsection (d) addresses "Enforcement and limitations." Several of subsection (dX3)'s provisions are relevant here. One—the "venue" provision —states that "[t]he rights described in subsection (a) shall be asserted 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 which the crime occurred." Another provides that "[i]f the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus" —and as amended in 2015, and thus before petitioner sought review here, it goes on to clarify that in deciding any mandamus petition under the CVRA, "the court of appeals shall apply ordinary standards of appellate review." Subsection (dX6) is also relevant in two respects. First, it states that "Nothing in this chapter shall be construed to authorize a cause of action for damages." Second, and separately, it emphasizes that "[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." *1204 Finally, subsection (f)—we've already introduced subsection (e), which defines the term "crime victim"— instructs the Attorney General to "promulgate regulations to WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00073498 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations" concerning those victims. Id. § 3771(f)(1). With that primer, we proceed to address petitioner's case. IV Petitioner contends—and as already explained, the undisputed facts show—that federal prosecutors in the Southern District of Florida negotiated "a secret non- prosecution agreement" with Epstein, and that "[f]rom the time that the FBI began investigating Epstein through the consummation of the secret NPA, the Government never conferred with Epstein's victims about the NPA [or] even told them that such an agreement was under consideration." Petition for Writ of Mandamus at 4-5. By keeping her (and others) in the dark concerning Epstein's NPA, petitioner asserts, the government violated the CVRA. [ II The unique circumstances of this case—and in particular, the fact that Epstein was never charged in the Southern District of Florida—tee up what the district court correctly called a "threshold" question: Does the CVRA apply in the period before criminal proceedings are initiated, either by criminal complaint, information, or indictment? If it does, then we must proceed to consider a cascade of logically subsequent questions—among them, (1) whether the Act authorized the district court to rescind the NPA, both generally and, more specifically, as applied to Epstein's alleged coconspirators; (2) whether petitioner was entitled to discovery of certain grand-jury materials, DOJ records pertaining to prosecutors' decision to enter into the NPA, and FBI files concerning the Epstein investigation; (3) whether petitioner's participation in an Epstein-related victim-impact hearing in New York effectively moots her request for relief here; and (4) whether federal law entitles petitioner to recover attorneys' fees. If, by contrast, the CVRA doesn't apply before the commencement of criminal proceedings, then ow inquiry is at an end. 6 *1205 [2] [3] Whether the CVRA applies prior to the initiation of criminal proceedings is not just a threshold question, but also a question of first impression in this Circuit. The Fifth Circuit has stated—albeit in dictum, without meaningful explanation, and seemingly without the benefit of adversarial testing—that the Act can apply before criminal proceedings begin. See In re Dean, 527 F.3d 391, 394 (5th Cir. 2008). The Sixth Circuit has deemed it "uncertain" whether CVRA protections apply "prior to [the] filing of ... charges." In re Acker, 596 F.3d 370, 373 (6th Cir. 2010). The district courts that have considered the question are divided. Compare, e.g., 1' United States it Oakum, No. 3:08CR132, 2009 WL 790042, at *2 (E.D. Va. Mar. 24, 2009) (holding that CVRA rights can attach prior to the commencement of criminal proceedings), with, e.g., United States v. Daly, No. 3:11CR121 AWT, 2012 WL 315409, at *4 (D. Conn. Feb. 1, 2012) (holding to the contrary). As already explained, the district court here concluded that the CVRA can apply before the initiation of criminal proceedings —"pre-charge," for short—and, accordingly, that petitioner enjoyed the protections of the Act during the period that preceded the execution of Epstein's NPA. In particular, petitioner asserts in these proceedings that the government violated her "reasonable right to confer" with the lead prosecutor, L 18 U.S.C. § 3771(aX5), and her right "to be treated with fairness," id. § 3771(aX8)—neither of which, she says, is limited by its terms to the post-charge phase of a criminal prosecution. 7 In support of her position that CVRA rights can apply before criminal proceedings begin, petitioner points (as did the district court) to II a § 3771(c) (1)—which refers to federal-government agencies engaged in the "detection [and] investigation" of crime, in addition to its "prosecution" —and to C a § 3771(d)(3)-which, in specifying the venue where a victim should seek relief under the Act, refers to the eventuality that "no prosecution is underway." The interpretation of the CVRA that petitioner advances, and that the district court adopted, is not implausible; the CVRA could be read to apply pre-charge. We conclude, though— reluctantly, especially given the mistreatment that petitioner seems to have suffered at the hands of federal prosecutors — that the Act is neither best nor most naturally read that way. For reasons that we will explain, we hold that (1 ) the CVRA's text and structure, (2) the historical context in which the Act was passed, and (3) the prosecutorial -discretion principles that the Act was designed to safeguard—and which, we think, petitioner's interpretation would compromise —demonstrate that its protections apply only after the initiation of criminal proceedings. If Congress believes that we have misinterpreted the CVRA—or, for that matter, even if it believes that we have WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00073499 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 correctly interpreted the statute as currently written but that its scope should be expanded —then it should amend the Act to make its intent clear. A [4] In construing the CVRA, "we begin, as we must, with a careful examination of the statutory text," *1206 Henson v. Santander Consumer USA Inc., — U.S. —, 137 S. Ct. 1718, 1721, 198 L.Ed.2d 177 (2017), looking "to the particular statutory language at issue, as well as the language and design of the statute as a whole," K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). On balance, we conclude that the Act's terms—including the provisions on which petitioner relies—demonstrate that its protections apply only after the commencement of criminal proceedings. 1 [51 We begin where petitioner does, with the catalogue of "rights"—quoted in full above—that the CVRA guarantees to "crime victims." (As already noted, the Act defines the term "crime victim"—more on that later.) Petitioner relies chiefly on § 3771(a)(5)'s guarantee of a "reasonable right to confer with the attorney for the Government in the case," and !' I § 3771(a)(8)'s guarantee of the "right to be treated with fairness." She contends that by failing to inform her— and worse, affirmatively misleading her—about its ongoing negotiations with Epstein, the government violated both provisions. We will address subsections (a)(5) and (8) in due course, but because "[s]tatutory construction ... is a holistic endeavor," and because "[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme," It a United Sam. Ass'n of Tex. a Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988), we first examine the balance of [ § 3771(a).8 In the main, anyway—and there isn't any real dispute about this—the CVRA's enumeration seems to focus on the post- charge phase of a criminal prosecution, and in particular on ensuring that crime victims have notice of(and an opportunity to be heard in) pending criminal proceedings. Indeed, six of the eight rights listed in § 3771(a)—all except for those specified in subsections (5) and (8)—either expressly refer to or necessarily presuppose the existence of an ongoing criminal proceeding. Subsections (a)(2), (3), (4), and (7) leave no doubt whatsoever —all of them apply, by their plain terms, to "proceeding[s]," "public proceedings," or "public court proceedings." Not surprisingly, there seems to be general agreement that these "proceeding" -focused rights apply only after the filing of a complaint or criminal charges. See Reply in Supp. of Pet. at 17; Paul G. Cassell, et aL, Crime Picini's' Rights During Criminal Investigations? Applying the Crime Victims' Rights Act Before Criminal Charges Are Filed, 104 J. of Crim. L. and Criminology 59, 71 (2014). Subsections (aX I ) and (6) aren't quite as clear, but they too are best understood as specifying rights that attach only after criminal proceedings have begun. Subsection (I) guarantees a crime victim's right to protection from "the accused." r § 3771(a)(1). Both in ordinary spoken English and as a legal term of art, the word "accused" refers to someone against whom criminal proceedings have been commenced. See, e.g., IVebster's New International Dictionary 17 (2d ed. 1944) (defining "accused" as "one charged with an offense; the defendant in a criminal case"); see also "'Michigan v. Jackson, 475 U.S. 625, 632,106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) ("[A]fler a formal accusation has been made ... a person who had previously been just a 'suspect' has become an 'accused' within the meaning of the Sixth Amendment...:'). Subsection (aX6), *1207 which guarantees a victim's right to "full and timely restitution," likewise presupposes the initiation—and indeed perhaps the maturation or even conclusion —of criminal proceedings. Black's, for instance, defines the term "restitution," in relevant part, to mean "[c]ompensation for loss; esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation." Black's Law Dictionary 1507 (10th ed. 2014). So, it seems to us, the rights enumerated in subsections (a) (I), (2), (3), (4), (6), and (7) are properly understood as applying only after the initiation of criminal proceedings. And again, petitioner doesn't really contend otherwise. Instead, she focuses on subsections (a)(5) and (8), which she says are framed broadly enough that they can be understood to apply pre-charge. Let's take a closer look. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00073500 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 Subsection (a)(5) guarantees a crime victim the "reasonable right to confer with the attorney for the Government in the case." Petitioner and her lead counsel (in his academic writings) emphasize that this provision refers to the attorney handling "the case" rather than "the charges," Reply in Supp. of Pet. at 17, and they assert that the term "case" can "refer both to a judicial case before a court and an investigative case pursued by a law enforcement officer," Cassell et al., supra, at 72 (emphasis added).9 Although it's true, at least in the abstract, that the term "case" can mean either thing, in legal parlance the judicial-case connotation is undoubtedly primary. See, e.g., Black's, supra, at 258-59 (defining "case" first as "[a] civil or criminal proceeding, action, suit or controversy at law or in equity" and only second as "[a] criminal investigation"); IVebsters New International, supra, at 415 (defining "case" as used in "[flaw" as "a suit or action in law or equity; a cause"). Moreover, and in any event, two contextual considerations convince us that, as used in subsection (a)(5), the term "case" refers to an ongoing judicial proceeding, not a law-enforcement investigation. First, the Supreme Court has held that in the criminal context, a "case" does not "encompass the entire criminal investigatory process," but rather "at the very least requires the initiation of legal proceedings." P M()Chavez it Martinez, 538 U.S. 760, 766, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). Notably, in so holding, the Court drew on longstanding tradition, citing its now nearly 150-year-old decision in Blyew a United States for the proposition that the word "case" is synonymous with the word "cause" and "rnean[s] a proceeding in court, a suit, or action." 80 U.S. (13 Wall.) 581, 595, 20 L.Ed. 638 (1872). Second, and separately, subsection (a)(5) refers not just to "the case" in general, but more particularly to "the attorney for the Government in the case." While it is undoubtedly true that government lawyers may be involved in a criminal investigation pre-charge, the provision's reference to a single, specific individual —"the attorney for the Government' —indicates that the conferral right attaches only after proceedings have begun, at which point that particular person will presumably be more readily identifiable. Cf. I *1208 Rumsfeld it Padilla, 542 U.S. 426, 434-35, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (holding that the "use of the definite article ... indicates that there is generally only one" person covered). By the same token, there will surely be many criminal investigations to which no lawyers have (yet) been assigned—let alone a single, identifiable "attorney for the Government." Accordingly, if, as petitioner asserts, subsection (aX5) was intended to apply pre-charge, during the investigation phase, it makes little sense that Congress would have tethered the conferral right to a single government lawyer. On balance, therefore—and particularly in the light of subsections (a)(I), (2), (3), (4), (6), and (7), all of which clearly apply only after the initiation of criminal proceedings —we conclude that § 3771(a)(5)'s conferral right does not attach during the pre-charge, investigatory phase. Rather, subsection (a)(5) is best understood as guaranteeing a crime victim's right to consult with the lead prosecutor—i.e., "the attorney for the Government" —in a pending prosecution —i.e., "the case." 19 Petitioner also relies (albeit more obliquely) on subsection (a)(8), which vaguely guarantees a crime victim's right "to be treated with fairness and with respect for [his or her] dignity and privacy." It is certainly true that this fair-treatment right has no inherent temporal limitation—on its face, it could apply pre-charge, post-charge, or for that matter even post-conviction. But well-established canons of interpretation require us to interpret subsection (a)(8)'s general right to fair treatment by reference to the subsections (and their constituent rights) that precede it. See, Johnson it United States,559 U.S. 133, 139,130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Ultimately, context determines meaning ...."); Pi Gutierrez v. Ada, 528 U.S. 250, 255, 120 S.Ct. 740, 145 L.Ed.2d 747 (2000) ("[W]ords and people are known by their companions."). Because the rights enumerated in subsections (a)(I)—(7) are best understood as applying only after the institution of criminal proceedings, subsection (a) (8)'s guarantee of "fairness" is, too. What the Supreme Court said recently in applying noscitur a sociis—"the well-worn Latin phrase that tells us that statutory words are often known by the company they keep"—applies here as well: In ? t§ 3771(a), "we find ... both the presence of company that suggests limitation and the absence of company that suggests breadth." ti Lagos v. United States, —U.S. —, 138 S. Ct. 1684, 1688-89, 201 L.Ed.2d I (2018).1 Taken as a whole. then, we conclude that the catalogue of rights specified in § 3771(a) are best read as applying only after the institution of criminal proceedings. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA00073501 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 2 We are fortified in that conclusion by the only two provisions of the Act that speak directly to judicial enforcement of victims' statutory rights. *1209 The first is § 3771(b), titled "Rights afforded." At oral argument, petitioner's counsel invoked subsection (b)(1) affirmatively, noting—with emphasis —its directive that "the court shall ensure that the crime victim is afforded the rights" enumerated in subsection (a). See Oral Arg. at 5:45-5:57. True, but that's only part of the story. In its entirety, subsection (b)(1) reads as follows: "In any court proceeding involving art offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a)." C II 18 U.S.C. § 3771(b)(1) (emphasis added). By its plain terms, then, subsection (bX1) empowers courts to enforce CVRA rights only during pending criminal proceedings —of which there were none here. The second is § 3771(d), which specifies—and strictly circumscribes —the procedural mechanisms by which an alleged victim must assert and seek to enforce CVRA rights. Two (related) points are worth making. As an initial matter, the Act clearly indicates that Congress did not intend to authorize private individuals to initiate stand-alone suits or actions, outside the confines of existing criminal proceedings, to enforce their statutory rights. Quite the contrary, in fact —subsection (d)(6), titled "No Cause of Action," expressly states that "[n]othing in this chapter shall be construed to authorize a cause of action for damages." f § 3771(d) (6)). Cf.? Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (explaining that "[1]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress"). some action which is incidental to the main proceeding .... Such action is invoked by an application usually less formal than the pleadings, and is called a motion.' " (quoting John C. Townes, Studies in American Elementary Law 621 (1911)); cf. Fed. R. Civ. P. 3, 7 (distinguishing between a "motion" and a "pleading" —the latter of which is defined to include a "complaint," which is the prescribed vehicle for commencing a freestanding action). 13 *1210 The facts that the CVRA (1) does not sanction freestanding suits and (2) does prescribe mid-proceeding "motion[s]" combine—especially in conjunction with subsection (a)'s enumeration —to indicate that the Act's protections apply only after the initiation of criminal proceedings. 14 3 In fairness, petitioner is not without her own textual arguments. In urging us to hold that CVRA rights—or at least some of them—apply even before the initiation of criminal proceedings, she relies principally on two subsections, which the parties call the "coverage" and "venue" provisions, respectively. Neither, we conclude, clearly demonstrates that the rights specified in the Act attach during the pre-charge, investigative phase. t Petitioner first points to t § 3771(c)(1) —the "coverage" provision —which, as already explained, 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)." a 18 U.S.C. § 3771(c)(1). From the premise that "the CVRA applies to the 'detection [or] investigation' of crimes," petitioner reasons to the conclusion, which the district court adopted, that "the [6] [7] Instead—and this is point two—subsection (d)(3) Act's drafters 'surely contemplate[d] pre-charge application specifies that a victim must assert his or her rights in a "motion of the CVRA.' " Reply in Supp. of Pet at 15 (quoting Does, for relief' filed in district court and requires the court to consider and decide that "motion" promptly. 18 U.S.C. § 3771(dX3). As commonly understood, a "motion" is a request filed within the context of an ongoing judicial proceeding, not a vehicle for launching a new and freestanding piece of litigation. 12 See, e.g., Black's, supra, at 1168 ("'Frequently, in the progress of litigation, it is desired to have the court take 817 F. Supp. 2d at 1342). We disagree for two reasons. First, understood in proper context, it seems clear to us that subsection (c)(1) is a "to whom" provision, not a "when" provision. That is, it clarifies that CVRA obligations extend beyond the officers and employees of "the Department of Justice" to include, as well, the officers and employees of "other departments and agencies of the United States" that WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00073502 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 (like DOJ) are "engaged in the detection, investigation, or prosecution of crime"—e.g., IRS, ICE, and TSA. Those agencies' employees, like DOJ's, must "make their best efforts to see that crime victims" are afforded CVRA rights. Subsection (c)(1) doesn't expressly *1211 speak to when CVRA rights attach, and it certainly doesn't clearly demonstrate that those rights attach before the initiation of criminal proceedings. Government employees (whether of DOJ or some other Dal-like agency) who are involved in all three of the referenced phases are necessarily involved post-charge. Subsection (cX1) simply makes clear that the Act reaches beyond prosecutors (and DUI) to reach other actors in the criminal justice system. IS Second, and more importantly, petitioner's reliance on I § 3771(c)(1) proves entirely too much. If, as petitioner thinks subsection (c)(1) shows, CVRA rights apply during the "detection" and "investigation" of crime, then there is no meaningful basis—at least no meaningful textual basis— for limiting the Act's pre-charge application to the NPA context. To the contrary, on petitioner's reading, subsection (c)(1) would—to cite just a few examples—require law- enforcement officers to "confer" with victims, subject only to a squishy "reasonable[ness]" limitation, see § 3771(a) (5), before conducting a raid, seeking a warrant, making an arrest, interviewing a witness, convening a lineup, or conducting an interrogation. Absent a much clearer indication, we cannot assume that Congress intended such a jarring result. Presumably sensing the slipperiness of their position, petitioner and her counsel have said that courts can simply draw the line farther downstream —when, for instance, as counsel put it at oral argument, an investigation has "matured" to the point where (as here) prosecutors "are negotiating with defense attorneys and signing agreements." Oral Arg. at 8:30, 9:10-9:17. "At that point at least," counsel said, "a conferral right exists" under subsection (a)(5). Id. at 9:10-9:17. That is a line, to be sure—and a line that happens to capture this case—but it has no footing whatsoever in the "detection [or] investigation" language to which petitioner points in support of her position. 16 As tempting as it might be to do so—especially on the facts before us here—we cannot re-write, or arbitrarily circumscribe, the Act's text simply to make it fit petitioner's theory. 17 *1212 For these reasons, we cannot accept petitioner's contention that § 3771(c)(1) demonstrates that the CVRA applies before the initiation of criminal proceedings. Petitioner is on slightly stronger footing, we think, in pointing to the CVRA's "venue" provision, t § 3771(d) (3). In relevant part, that provision states that "[t]he rights described in subsection (a) shall be asserted 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 which the crime occurred." Petitioner contends—and the district court agreed—that the "no prosecution is underway" clause must mean that CVRA rights "'may be enforced before a prosecution is underway' " and, accordingly, that " 'those rights must attach befo