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POE & BURTON PLLC MEMORANDUM Privileged & Confidential Attorney Work Product DRAFT To: Jeffrey Epstein File From: Gregory L. Poe Date: April 16, 2015 Re: Potential Participation by Amici in Does v. United States, No. 08-CV-80736-KAM (S.D. Ha.) Regarding Scope and Meaning of Crime Victims' Rights Act (18 U.S.C. § 3771) I. Introduction. This memorandum addresses why potential amici may wish to consider seeking to file a brief in Does v. United States, No. 08-CV-80736-KAM (S.D. Fla.), regarding the scope and meaning of the Crime Victims' Rights Act of 2004 ("CVRA") (codified at 18 U.S.C. § 3771). In Does, two asserted victims of Jeffrey Epstein in connection with a sex offense investigation filed a petition on July 7, 2008, claiming that the United States Department of Justice ("DOJ") had violated the CVRA by failing to notify them that Epstein and DOJ entered into a Non-Prosecution Agreement ("NPA") containing various obligations and conditions, and seeking rescission of the NPA as a remedy for the asserted violation. Dkt. 1.l Over the government's opposition, the district court ruled in two orders that (1) the rights of crime victims under the CVRA, including the right to confer with prosecutors, attach before charges are filed (see Does v. United States, 817 F. Supp. 2d 1337, 1341-43 (S.D. Fla. 2011); Does v. United States, 950 F. Supp. 2d 1262, 1266-68 (S.D. Fla. 2013)); and (2) a right of rescission is available to such crime victims as a potential remedy if the government violates their rights under the CVRA (Does, 950 F. Supp. 2d at 1266-70). 2 ' References to the docket in Does (No. 08-CV-80736-KAM) are in the form "Dkt. 2 Among other things, the government and Mr. Epstein agreed in the NPA that Mr. Epstein would agree to enter guilty pleas to two solicitation offenses in the State of Florida and make a binding recommendation for an eighteen-month sentence in county jail followed by twelve months of community control. See 950 F. Supp. 2d at 1264; see also Does v. United States, 749 F.3d 999, 1002-03 (11th Cir. 2014) (describing dormancy of the CVRA petition and related civil proceedings). The state court accepted the guilty pleas and sentenced Mr. Epstein as agreed. Mr. Epstein was subsequently incarcerated in county jail and completed service of his sentence. The district court held that a rescission remedy may be available under the CVRA in Mr. Epstein's case despite the fact that Mr. Epstein pleaded guilty in state court in reliance on the NPA, was incarcerated in reliance on the NPA, and complied with his obligations under the NPA. The district court has allowed Mr. Epstein "to intervene with regard to any remedy issue concerning the non-prosecution agreement." Does v. United States, 749 F.3d 1003, 1004 (11th Cir. 2014). 1 EFTA01144324 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT Although Does arises out of a federal investigation with respect to alleged federal sex offenses (which were never charged), the district court's rulings in Does have potentially far- reaching consequences for businesses attempting to resolve investigations through settlement mechanisms such as NPAs. Part H of this memorandum analyzes the CVRA and shows that the statute does not grant enforceable rights to putative crime victims in the pre-charge/investigatory context. Part III shows why the district court's orders in Does, which hold to the contrary, are incorrect. Part IV addresses the district court's ruling that the CVRA permits rescission of a non- prosecution agreement (regardless of the reliance and due process interests involved) and shows why that conclusion is wrong. Part V of this memorandum discusses the substantial adverse effects that the court's construction of the CVRA in Does potentially could have on a wide range of business interests if the court does not revisit its rulings. Corporations require predictability and reliability in resolving cases through NPAs and similar settlement vehicles, which have become increasingly common in the last 15 years. See, e.g., 2014 Year-End Update on Corporate Non- Prosecution Agreements (NPAs) and Deferred Prosecution Agreements (DPAs), available at http://www.gibsondunn.corn/publications/Pages/2014-Year-End-Update-Corporate-Non- Prosecution-Agreements-and-Deferred-Prosecution-Agreements.aspx (page lasted visited April 15, 2015). The potential problems associated with the district court's orders in Does are especially acute in complex investigations with broad public impact. Such matters include, for example, fraud investigations regarding alleged shareholder loss relating to publicly traded companies such as Enron; environmental and industrial matters involving accidents such as the Deepwater Horizon oil spill; pharmaceutical and medical device investigations cases relating to alleged product defects; and other complex regulatory cases. This memorandum includes arguments that potential amici may wish to consider in asserting that crime victims under the CVRA have no legal basis on which to (1) challenge or alter pre-charging decisions and agreements by DOJ; and (2) claim that a right of rescission (or any other remedy) exists with respect to NPAs and other pre-charge settlement mechanisms. Does is pending resolution on the merits. As of the date of this memorandum, the court had not entered a deadline for dispositive motions or set a trial date regarding the question whether the government violated petitioners' rights under the CVRA. Given the scheduling uncertainty, potential amici interested in urging the court to revisit its construction of the CVRA should consider preparing a brief and an accompanying motion seeking permission to file, and having the materials ready in advance for filing at the appropriate time. H. Analysis of the CVRA. A. Background, Text, and Structure. The CVRA was enacted in October 2004. In re Cienfuegos, 462 F.3d 1160, 1165 (9th Cir. 2006). The CVRA's enactment followed many years of unsuccessful efforts in the United States 2 EFTA01144325 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT Senate to add a victims' rights amendment to the Constitution. See, e.g., 150 Cong. Rec. S4261 (Apr. 22, 2004) (statement of Sen. Feinstein); Paul G. Cassell & Steven Joffee, A Response to the Critics of the Crime Victims' Rights Act, 105 Nw. U. L. Rev. 164, 165-67 (2011).3 The CVRA defines a crime victim as "a person directly and proximately harmed as a result of the commission of a Federal offense or an offense in the District of Columbia." 18 U.S.C. § 3771(e). The statute also enumerates rights held by crime victims and contains an enforcement mechanism for those rights. The CVRA specifies eight rights of crime victims (as defined in Section 3771(e)): • "The right to be reasonably protected from the accused." 18 U.S.C. § 3771(a)(I). • "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." 18 U.S.C. § 3771(a)(2). • "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." 18 U.S.C. § 3771(a)(3). • "The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding." 18 U.S.C. § 3771 (a)(4). • "The reasonable right to confer with the attorney for the Government in the case." 18 U.S.C. § 3771(a)(5). • "The right to full and timely restitution as provided by law." 18 U.S.C. § 3771 (a)(6). • "The right to proceedings free from unreasonable delay." 18 U.S.C. § 3771(a)(7). • "The right to be treated with fairness and with respect for the victim's dignity and privacy." 18 U.S.C. § 3771(a)(8). The CVRA articulates an enforcement framework to protect the rights of crime victims. First, it gives federal judicial officers specific responsibilities. See 18 U.S.C. § 3771(b)(I) ("In any court proceeding involving an offense against a crime victim, the court shall ensure that the 3 The CVRA repealed section 502 of the Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789, 4820 (which was codified at 42 U.S.C. § 10606). Part of the Crime Control Act of 1990 is known as the Victims' Rights and Restitution Act of 1990 ("VRRA"). The now-repealed portion of the VRRA granted rights to crime victims that were defined somewhat differently from the rights granted in the CVRA. Other parts of the VRRA remain in effect. See, e.g., 42 U.S.C. § 10607 (list of mandatory services for crime victims as defined in the VRRA). 3 EFTA01144326 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT crime victim is afforded [the rights specified in Section 3771(a)])." Second, it gives Executive Branch officers specific responsibilities. See id. § 3771(c)(1) ("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)"); id. § 3771(c)(2) (requiring "[t]he prosecutor" to "advise the crime victim that the crime victim can seek the advice of an attorney with respect to the rights described in subsection (a)"). Finally, the CVRA allows both prosecutors and crime victims themselves to enforce rights granted in Section 377I(a). Id. § 377I(d)(3) (authorizing crime victims, or their lawful representatives, as well as "the attorney for the Government," id. § 3771(d)(1), to assert the rights granted in Section 3771(a) by motion "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 the district in which the crime occurred"). The CVRA requires a district court "to take up and decide [a motion seeking to enforce rights under Section 3771(a)] forthwith." Id. § 3771(d)(3). Under the CVRA, both the government and crime victims may seek expedited mandamus review by a court of appeals of any decision denying relief. Id. The government (but not a crime victim) may assert as error on direct appeal any denial of a crime victim's right. Id. § 3771(d)(4). The CVRA also provides that a crime victim may seek to reopen a plea or a sentence in specific and limited circumstances. Id. § 3771(d)(5). Section 3771(d)(6) of the CVRA states that "[n]othing in this chapter shall be construed to authorize a cause of action for damages," and further states that "[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." 4 B. Application of Legal Principles. Contrary to the district court's ruling in Does, the text, structure, purpose, and legislative history of the CVRA support the conclusion that crime victims do not have enforceable pre-charge rights under the statute. Similarly, the text, structure, purpose, and legislative history of the CVRA are at odds with the district court's conclusion in Does that crime victims may seek and obtain rescission of a pre-charge settlement agreement between the Department of Justice and an Section 3771(0(1) of the CVRA directed the Attorney General to promulgate regulations within one year of the CVRA's enactment "to enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations described in law respecting crime victims." Those regulations, which were duly enacted (see 28 C.F.R. § 45.10), designate an administrative authority within the Department of Justice to handle complaints relating to crime victims, and set forth a framework for training and disciplinary sanctions for willful noncompliance with federal laws regarding the treatment of crime victims. See 18 U.S.C. § 3771(0(2); 28 C.F.R. § 45.10. The CVRA states that "the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint," and that "there shall be no judicial review of the final decision of the Attorney General by a complainant." 18 U.S.C. § 377I (0(2)(D). 4 EFTA01144327 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT individual or entity seeking to resolve a criminal investigation. Indeed, basic principles of statutory construction compel a conclusion that Congress did not intend to afford such a remedy to crime victims under the CVRA. As the Department of Justice has put it: "[T]he rights identified in section 3771(a) [of the CVRA] are guaranteed from the time that criminal proceedings are initiated (by complaint, information, or indictment) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring formal charges after the filing of a complaint)." Memorandum Opinion for the Acting Deputy Attorney General from the Office of Legal Counsel dated December 17, 2010. See 35 Op. O.L.C. 1, 2010 WL 6743535 *1 ("OLC Opinion"). 1. Definition of "Crime Victim." As an overarching point, the definition in the CVRA of "crime victim" itself supports the conclusion that the statute does not grant pia-charge rights to putative (or actual) crime victims. The CVRA extends enforceable rights only to a person "directly and proximately harmed as a result of a commission of a Federal offense." 18 U.S.C. § 3771(a) (emphasis added). Before the filing of a complaint (which is the earliest point in the federal criminal process at which a showing of probable cause is required, see Fed. R. Crim. P. 4(a)), the ability even to identify an alleged "offense" may be in question. Cf. In re Stewart, 552 F.3d 1285, 1288 (11th Cir. 2008) ("To determine a crime victim, then, first, we identify the behavior constituting 'commission of a Federal offense.' Second, we identify the direct and proximate effects of that behavior on parties other than the United States. [footnote omitted] If the criminal behavior causes a party direct and proximate harmful effects, the party is a victim under the CVRA."). That problem takes on special significance in complex regulatory cases (e.g., health care cases involving alleged product defects, environmental cases, and fraud cases involving shareholder loss issues). Nothing in the text of the CVRA suggests that Congress intended to allow asserted crime victims to file enforcement actions in such pre-charge circumstances where even the definition of a putative offense standing as the predicate for "crime victim" status under the statute (much less the actual existence of an offense) may be highly uncertain. Most courts construing the CVRA have declined to characterize alleged victims of uncharged conduct that did not lead to criminal proceedings as "crime victims" who are entitled to enforceable rights. See, e.g., United States v. Daly, 2012 WL 315409 *4 (D. Conn. 2012) ("a more logical interpretation of the statute is that a person has the rights of a `crime victim' for purposes of the CVRA no sooner than the point in time when an offense has been charged"); United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005) (excluding victims of uncharged conduct from the class of those entitled to participatory rights under the CVRA because "the offense charged against a defendant can serve as a basis for identifying a 'crime victim' as defined in the CVRA"); Searcy v. Paletz, No. 6:07-1389-GRA-WMC, 2007 WL 1875802 *6 (D.S.C. June 27, 2007) (inmate does not qualify as a "crime victim" under the CVRA where there has been a prosecutorial decision not to charge another inmate accused of attacking him); Searcy v. Skinner, No. 6:06-1418-GRA-WMC, 2006 WL 1677177 *2 (D.S.C. June 16, 2006) (plaintiff inmate could not use CVRA as a basis to bring action against alleged attacker inmate where 5 EFTA01144328 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT government had declined to initiate a prosecution against the alleged attacker); In re Merkosky, 2008 WL 177762 *2 (N.D. Oh. 2008) (courts have found that the CVRA "does not confer any rights upon a victim until a prosecution is already begun"); Stegman v. United States, 2015 WL 728487 *1-2 (D. Kan. 2015) (Sections 3771(a)(1) (right to protection from accused) and Section 3771(a)(5) (right to confer) do not apply in pre-charging context); In re Petersen, 2010 WL 5108692 *2 (N.D. Ind. 2010) ("the U.S. Attorney didn't have an obligation under the CVRA to confer with [victims] until after a charge was filed and a case opened"); United States v. Rubin, 558 F. Supp. 2d 411, 417 (E.D.N.Y. 2008) ("the CVRA appears to simply accord [victims] standing to vindicate their rights as victims under the CVRA and to do so in the judicial context of the pending criminal prosecution of the conduct of the accused that allegedly victimized them"); see also In re W.R. Huff Asset Management (United States v. Rigas), 409 F.3d 555 (2d Cir. 2005) (rejecting challenge to settlement agreement in forfeiture action in connection with Rigas/Adelphia fraud case and stating that "the CVRA does not grant victims any rights against individuals who have not been convicted of a crime"); In re Antrobus, 563 F.3d 1092, 1099 (10th Cir. 2009) (stating that "the purpose of the CVRA is to permit victim participation in ongoing criminal matters"); In re Acker, 596 F.3d 370, 373 (6th Cir. 2010) (characterizing as "uncertain" the question whether a victim has rights before formal charges are filed).5 The history of the CVRA's "crime victim" definition provides further support for the argument that Congress contemplated that the rights enumerated in Section 3771(a) would attach only after the commencement of criminal proceedings regarding an alleged offense. As stated above, the CVRA defines a crime victim as a "person directly and proximately harmed as a result of the commission of a Federal offense[.]" 18 U.S.C. § 3771(e). That definition is taken not from 5 The Fifth Circuit may take the position that the right to confer in Section 3771(a)(5) attaches before criminal proceedings have begun. See In re Dean, 527 F.3d 391, 394 (5th Cir. 2008). For the reasons discussed in Part III below, Dean is distinguishable. (And, if its conclusions are taken as a generally applicable holding, the decision is simply wrong.). The district court in Does, 817 F. Supp. 2d 1337; 950 F. Supp. 2d 1262, relied on In re Dean in concluding that CVRA rights attach before charges are filed; its orders are incorrect for the reasons discussed in Parts III and IV of this memorandum. In Rubin, a post-indictment case, the district court, citing In re Dean, stated in dicta that "the CVRA envisions the possibility of judicial vindication of certain CVRA rights outside the context of an actual prosecution." 558 F. Supp. 2d at 417 n. 5. That dicta, however, contradicts the court's statement earlier in its order (id. at 417) and is in tension with language later in its order. Id. at 419 ("assuming that it was within the contemplation and intendment of the CVRA to guarantee certain victim's rights prior to the formal commencement of a criminal proceeding, the universe of such rights clearly has its logical limits"); kI. at 425 (if dismissal instead of guilty plea had occurred, it would have been "before movants could rightly be termed victims under the CVRA"). See also United States v. Okun, 2009 WL 790042 * 2 (E.D. Va. 2009) (stating in dicta in post-indictment context, in course of addressing a government motion on behalf of victim/witnesses to attend trial, that the Fifth Circuit in In re Dean "has noted that victims acquire rights under the CVRA even before prosecution"). 6 EFTA01144329 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT VRRA (the predecessor to the CVRA which defined a "victim" more broadly as "a person that has suffered direct physical, emotional, or pecuniary harm as the result of the commission of a crime," 42 U.S.C. § 10607(e)(2)), but is instead tied closely to language in the Victim and Witness Protection Act of 1982 (VWPA) and the Mandatory Victims Restitution Act of 1996 (MVRA) that defines a "victim" as "a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered." See 18 U.S.C. §§ 3663(a)(2), 3663A(a)(2). Restitution, of course, may be ordered only on the basis of an offense of conviction, whereas at least some of the rights enumerated in Section 377I(a) may be read to apply more broadly. See, e.g., Hughey v. United States, 495 U.S. 411, 422 (1990) (VWPA authorized restitution only for losses caused by the offense of conviction). Nonetheless, the history of the "crime victim" definition is significant, as courts have recognized. See Turner, 367 F. Supp. 2d at 326-27 ("[T]he full Congress passed the [CVRA] knowing that similar language in an earlier victims' rights bill had been interpreted not to refer to uncharged conduct.... Since the [VWPA] and the CVRA use similar definitions of `victim,' it appears that the same reasoning would exclude victims of uncharged conduct from the class of those entitled to participatory rights under the [CVRA]" (footnote omitted; emphasis in original). See also OLC Opinion, 2010 WL 6743535 at n. 5. 2. The Enumerated Rights. When viewed as a whole, the eight rights granted in Section 3771(a) should be read to attach only after a court proceeding commences. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (describing statutory construction as "a holistic endeavor" (quoting United Say. Ass'n of Tex. v. Timbers of Inwood Forest Assocs. Ltd., 484 U.S. 365, 371 (1988)). Five of the enumerated rights are either explicitly confined to a criminal proceeding that has been instituted or require the existence of a criminal proceeding as a necessary predicate. See 18 U.S.C. §3771(a)(2) (right to "notice of any public court proceeding"); id. § 3771(a)(3) ("right not to be excluded from any such public court proceeding"); id. § 3771(a)(4) ("right to be reasonably heard at any public proceeding"); id. § 3771(a)(6) ("right to full and timely restitution"); id. § 3771(a)(7) ("right to proceedings free from reasonable delay"). Although the remaining three rights on their face do not explicitly apply only in the post-charge context, see id. § 3771(a)(1) ("right to be reasonably protected from the accused"); id. § 3771(a)(5) ("reasonable right to confer with the attorney for the Government in the case"); id. § 3771(a)(8) ("right to be treated with fairness and with respect for the victim's dignity and privacy"), the most natural interpretation of the statute is that those three rights, like the other five, do not apply before criminal proceedings are initiated in court. As discussed below, each of the arguably ambiguous provisions is most logically interpreted on its own to apply only in the post-charge context. Buttressing the specific arguments, however, is the canon of statutory interpretation noscitur a sociis (meaning that "words and people are known by their companions," Gutierrez v. Ada, 528 U.S. 250, 255 (2000)), which guides a court to consider that "several items in a list shar[ing] an attribute counsels in favor of interpreting 7 EFTA01144330 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT the other items as possessing that attribute as well." Beecham v. United States, 511 U.S. 368, 371 (1994). The fact that only three of the enumerated rights are arguably ambiguous and are interspersed with rights that plainly apply only to post-charge proceedings shows that the three rights in question should be informed by the meaning of the surrounding provisions. Cf. Jarecki v. C.D. Searle & Co., 367 U.S. 303, 311-12 (1961) (construing for tax purposes the term "discovery" in the phrase "exploration, discovery or prospecting" to be limited to the finding of minerals, as suggested by its association with exploration and prospecting, and therefore inapplicable to income from a patented item). See OLC Opinion, 2010 WL 6743535 *8. Furthermore, when interpreting a statute, a court must presume in the absence of contrary evidence that Congress "legislated against the background of our traditional legal concepts." United States v. U.S. Gypsum Co., 438 U.S. 422, 437 (1978). Traditionally in the federal system, "a private citizen lack[ed] a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D. and Texas, et aL, 410 U.S. 614, 618 (1973); see Cassell & Joffee, 105 Nw. U. L. Rev. at 180. Because the CVRA changed that tradition, the proposition that Congress intended to reach even further and allow putative crime victims to enforce CVRA rights during investigations requires a showing that the statute's text, structure, purpose, and history do not support. a. Section 3771(a)( 1 ) ("right to be reasonably protected from the accused"). For several reasons, the right granted in Section 3771(a)(1) should be read to apply only after court proceedings have begun. First, "the accused" is a term of art with deep roots in Anglo- American jurisprudence that identifies a person charged with a crime. See Black's Law Dictionary 25 (9th ed. 2009) ("A person who has been arrested and brought before a magistrate or who has been formally charged with a crime. . . . A person against whom legal proceedings have been initiated."); see also Michigan v. Jackson, 475 U.S. 625, 632 (1986) ("[A]fter 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"). In construing statutes, "where Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them." Morissette v. United States, 342 U.S. 246, 263 (1952). Accord United States v. Rubin, 558 F. Supp. 2d 411, 420 (E.D.N.Y. 2008) ("Rationally, `accused' [in Section 3771(a)(1)] must mean accused by criminal complaint, information or indictment of conduct victimizing the complainant. The right created or acknowledged by the CVRA to be `reasonably protected from the accused' cannot have ripened before the earliest of one of these happenings."); Turner, 367 F. Supp. 2d at 332 (Section 3771(a)( 1 ) "appears to add no new substance to the protection of crime victims afforded by the Bail Reform Act [of 1984]"). 8 EFTA01144331 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT The statutory history underlying Congress's enactment of the CVRA further supports such an interpretation of Section 3771(a)(1). Section 503 of the VRRA, which was enacted in 1990, requires designated "responsible officials" at a federal agency "engaged in the detection, investigation or prosecution of crime" to "arrange for a victim to receive reasonable protection from a suspected offender" at the "earliest opportunity after the detection of a crime." See 42 U.S.C. §§ 10607(a), (b), and (c)(2). That requirement remains in force and explicitly applies in the pre-charge context. The distinction between the government's obligation under the VRRA to provide victims with reasonable protection from a "suspected offender" and the CVRA's "right to be reasonably protected from the accused," 18 U.S.C. § 3771(a)(1), underscores the conclusion that Section 3771(a)(1) applies only in the post-charge context. What is more, the right to protection from the accused in the CVRA replaced the right in Section 502 of the VRRA "to be reasonably protected from the accused offender." See 42 U.S.C. § I0606(b)(2) (repealed). Construing 18 U.S.C. § 3771(a)(1) to provide the same scope of protection to a victim as 42 U.S.C. § 10607(c)(2) would fail to respect Congress's intent to use different words in two provisions of the same statutory scheme (and in the two portions of the VRRA as originally enacted). That conclusion is forbidden. See, e.g., Bailey v. United States, 516 U.S. 137, 145 (1995) (holding that "a legislature is presumed to have used no superfluous words," and construing words "use" and "carry" in the same statutory scheme as having separate and non-overlapping meanings). See OLC Opinion, 2010 WL 6743535 *5. Finally, the legislative history of the CVRA shows that Congress did not intend Section 3771(a)( I) to apply before criminal proceedings are initiated in court, and that the provision's purpose was two-fold: first, to protect victims during the pendency of criminal proceedings; and second, to protect victims post-conviction by ensuring that they could be heard with respect to parole and early release determinations concerning convicted offenders. See, e.g., Toibb v. Radloff, 501 U.S. 157, 162 (1991) ("[A] court appropriately may refer to a statute's legislative history to resolve statutory ambiguity"). As a colloquy between the two original sponsors of the Senate bill, Senators Feinstein and Kyl, shows: Ms. Feinstein: One final point. Throughout this act, reference is made to the "accused." Would the Senator also agree that it is our intention to use this word in the broadest sense to include both those charged and convicted so that the rights we establish apply throughout the criminal justice system? Mr. Kyl: Yes[.] 150 Cong. Rec. 7304 (2004) (emphasis added). See also In re Siler, 571 F.3d 604, 609-10 (6th Cir. 2009) ("the legislative history of the bill indicates that Congress was concerned only with the 9 EFTA01144332 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT victim's right to take part in the criminal trial. See, e.g., 150 Cong. Rec. S4260, 4262-63 (2004)" (rejecting attempt under CVRA to unseal presentence investigation reports).6 b. Section 3771(a)(5) (the "reasonable right to confer with the attorney for the Government in the case") The language of Section 3771(a)(5), which grants a "reasonable right to confer with the attorney for the Government in the case," also should be read to apply only after the initiation of criminal proceedings. First, the phrase "in the case" suggests that a court proceeding must be pending. See, e.g., Chavez v. Martinez, 538 U.S. 760, 766 (2003) ( "a `criminal case' at the very least requires the initiation of legal proceedings"); Blyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1871) ("The words `case' and `cause' are constantly used as synonyms in statutes and judicial decisions, each meaning a proceeding in court, a suit, or action."); Black's Law Dictionary at 243 (defining "case" as a "civil or criminal proceeding, action, suit or controversy at law or in equity"). The legislative placement of a definite article ("the") before the word "case" further supports the interpretation that "the case" means a specific adversary proceeding instead of an ongoing investigation. Cf. Rzmisfeld Padilla, 542 U.S. 426, 434-35 (2004) (interpreting use of the definite article "the person" with respect to a statutory provision concerning a habeas corpus custodian to mean that there is usually only one proper custodian — not several different ones). See OLC Opinion, 2010 WL 6743535 *6. In the same vein, Congress's decision to tie a crime victim's right to confer to "the attorney" for the government in the case shows that the right attaches only after a criminal proceeding exists in which a prosecutor has appeared. Before a charge is filed, prosecutors may not play a lead role or even a substantial one, especially if an investigation has not reached the stage where evidence is being presented to a grand jury. See OW Opinion, 2010 WL 6743535 *6.7 If Congress had intended the right to confer to attach during investigations, it could not 6 In statutory interpretation, "[Moor statements are not given the same weight as some other types of legislative history, such as committee reports, because they generally represent only the view of the speaker and not necessarily that of the entire body. However, floor statements by the sponsors of the legislation are given considerably more weight than floor statements by other members, see NLRB v. St. Francis Hosp. of Lynwood, 601 F.2d 404, 415 n. 12 (9th Cir.1979), and they are given even more weight where, as here, other legislators did not offer any contrary views." Kenna v. United States District Court for the Central District of California, 435 F.3d 1011, 1015 (9th Cir. 2006). 7 Indeed, even in grand jury proceedings, the foreperson, not a prosecutor, is technically "in charge," Fed. R. Crim. P. 6(c), and such proceedings are secret. Fed. R. Crim. P. 6(e). Not surprisingly, the legislative history shows that Congress (consistent with Rule 6(e)'s strictures) did not intend to permit crime victims to attend grand jury proceedings. See 150 Cong. Rec. 22,951 (2004) (statement of Senator Kyl) ("the right is limited to public proceedings, thus grand jury proceedings are excluded from the right"). See OLC Opinion, 2010 WL 6743535 at n. 8. 10 EFTA01144333 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT logically have tied the right to confer to "the attorney for the Government[,]" given that an attorney may not even be involved in an investigation. Id. To underscore the point, Congress showed when it enacted the VRRA in 1990 that it knows how to define the participants in the pre-charge context. In the VRRA, Congress required designated "responsible officials" at all agencies "engaged in the detection, investigation or prosecution of crime,"42 U.S.C. § 10607(a), to provide specified services. In contrast, Congress's decision in the CVRA to tie the right to confer to an "attorney" makes sense only if the right to confer relates to the various issues that arise during a criminal proceeding (e.g., release and detention, witness considerations, trial and guilty plea issues, and sentencing issues).8 The legislative history of the CVRA further shows that the right to confer attaches only after the initiation of criminal proceedings. Floor statements by Senators Feinstein and Kyl (the original sponsors of the act in the Senate) emphasize the point. As Senator Feinstein stated, "[t]he victim of crime, or their counsel, should be able to provide any information, as well as their opinion, directly to the court concerning the release, plea, or sentencing of the accused. . . Of course, in providing victim information or opinion it is important that the victim be able to confer with the prosecutor concerning a variety of matters and proceedings. . . . This right is intended to be expansive. For example, the victim has the right to confer with the Government concerning any critical stage or disposition of the case." 150 Cong. Rec. 7302 (2004) (emphasis added). For his part, Senator Kyl stated that "[t]his right to confer does not give the crime victim any right to direct the prosecution. Prosecutors should consider it part of their profession to be available to consult with crime victims about concerns the victims may have which are pertinent to the case, case proceedings or dispositions. Under this provision, victims are able to confer with the Government's attorney about proceedings after charging." Id. (emphases added); 150 Cong. Rec. S4260, S4268 (Apr. 22, 2004). Finally, the legislative history regarding the failed effort to amend the Constitution with a victims' rights provision, which led to the compromise enactment of the CVRA, Kenna, 435 F.3d at 1016, supports the conclusion that the "reasonable right to confer with the attorney for the Government in the case" granted in Section 3771(a)(5) of the CVRA takes effect only the initiation of a criminal proceeding in court. See Sen. Rep. No. 108-191 (November 7, 2003) at I ("The Committee on the Judiciary, to which was referred the joint resolution (S.J. Res. 1) to propose an Section 3771(c)(1) of the CVRA, which requires federal officials involved in the "detection, investigation or prosecution of crime [to] make their best efforts" to ensure that crime victims are accorded their CVRA rights, does not mean that the rights listed in Section 3771(a) apply in the investigatory or pre-charge context. The phrase simply identifies the class of federal officials to which a "best efforts" obligation has been assigned (and does not define when rights arise). See OLC Opinion, 2010 WL 6743535 * 11. 11 EFTA01144334 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT amendment to the Constitution of the United States to protect the rights of crime victims, having considered the same, reports favorably thereon, without amendment, and recommends that the joint resolution do pass"). The Senate Report states that "victims do not have the right to be heard by prosecutors and defense attorneys negotiating a deal. Nonetheless, the Committee anticipates that prosecutors may decide, in their discretion, to consult with victims before arriving at a plea" (emphases added). Sen. Rep. No. 108-191 at 37.9 As Judge Kozinski noted regarding another CVRA issue, the Senate Report regarding the failed constitutional amendment "disclose[s] a clear congressional intent" in determining the meaning of the CVRA. See Kenna, 435 F.3d at 1016; accord Daly, 2012 WL 315409 *4; Stegman, 2015 WL 728487 *1-2; In re Petersen, 2010 WL 5108692 *2. c. Section 3771(a)(8) (the "right to be treated with fairness and with respect for the victim's dignity and privacy" Just as Section 3771(a)(1) (protection from the accused) and Section 3771(a)(5) (right to confer) are best read to apply only after the initiation of criminal proceedings in court, the "right to be treated with fairness and with respect for the victim's dignity and privacy," 18 U.S.C. § 3771(a)(8), is best read in the same light. The wording of Section 3771(a)(8) is arguably broader than the language in the other seven provisions in Section 3771(a). Respect for fairness, dignity, and privacy is a concept with theoretically broad application not necessarily tied to court-related proceedings. But the right granted in Section 3771(a)(8) makes sense only in the context of the other seven rights enumerated in the CVRA. The interpretive canon noscitur a sociis, discussed above at 7-8, applies with special force to Section 3771(a)(8). The logical application of the first seven rights, as discussed above, should inform and guide any interpretation of the language in Section 377I(a)(8). Moreover, nothing in the CVRA prohibits the Department of Justice from applying the rights and principles in Section 3771(a)(8) (or, for that matter, the rights and principles in the other seven provisions of Section 3771(a)) in the investigatory/pre-charge context as a matter of policy. The Department of Justice, in fact, has such a policy regarding the pre-charge context. See Attorney General Guidelines for Witness and Victim Assistance (rev. May 2012) at 41-42 ("In circumstances where plea negotiations occur before a case has been brought, Department policy is that this should include reasonable consultation prior to the filing of a charging instrument with the court"). The question is whether the right conferred in Section 3771(a)(8) attaches and is enforceable by a putative crime victim in court before a charge even exists. For the reasons discussed above at 10-12 with respect to Section 3771(a)(5) (the right to confer with an attorney for the government in a case), the injection of a court action brought by a putative victim in the investigatory environment, who asserts violations of the right to be treated "with fairness" and 9 In fact, the Department of Justice has decided to exercise its discretion exactly in that manner as a matter of discretionary policy as discussed in the next subsection. 12 EFTA01144335 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT with respect for dignity and privacy, could adversely affect and potentially interfere with ongoing investigations and require judicial attention to (and premature conclusions regarding) sensitive matters that may be only nascent from the law enforcement perspective. The legislative history supports a conclusion that Section 3771(a)(8) applies only after criminal proceedings have commenced in court. As the OLC Opinion states: Every example of crime victims experiencing unfairness, indignities, or violations of their privacy discussed in the legislative history refers to situations occurring after the filing of charges and typically involved a deprivation of one or more of the other rights protected by the Act as well. For instance, the floor debates reflect concern with the fairness and dignity with which crime victims are treated during pending criminal prosecutions. See, e.g., 150 Cong. Rec. 7296-97 (2004) (statement of Sen. Feinstein) (describing several examples of the failure to notify crime victims of critical hearings in criminal cases, as well as other instances where crime victims were problematically excluded from criminal proceedings); id. at 7297 ("This is not the way criminal justice should be practiced in the United States of America. The time has come to give victims of crime the right to participate in the system, the right to notice of a public hearing, the right to be present at that public proceeding, the right to make a statement when appropriate, the right to have restitution, if ordered by a judge, the right to know when your assailant or attacker is released from prison, and the right to be treated by our prosecutors and by our criminal justice system with respect and dignity."); id. at 7298 (statement of Sen. Kyl) ("Fair play for crime victims, meaningful participation . . . in the justice system, protection against a government that would take from a crime victim the dignity of due process — these are consistent with the most basic values of due process in our society."). [footnote omitted] OLC Opinion, 2010 WL 6743535 *8. Furthermore, as the OLC Opinion states: In the more extensive legislative history for S.J. Res. 1, 108th Cong. (2003) (the proposed constitutional amendment for which the CVRA emerged as a statutory substitute), the numerous examples of alleged affronts to fairness, dignity, and privacy suffered by crime victims again uniformly arise from the conduct of criminal proceedings and relate to perceived failures by courts to allow a crime victim to participate meaningfully in those proceedings against the alleged victimizer. See generally S. Rep. No. 108-191, at 19-20, 25, 28 (2003). Id. at n. 10. As the floor statements reflect, "Congress was concerned with ensuring fair treatment for crime victims in the context of pending criminal proceedings, rather than creating a right that could be asserted independent of any criminal prosecution." Id. *8. In short, the right to fairness, 13 EFTA01144336 POE & BURTON PLLC Privileged & Confidential Attorney Work Product DRAFT dignity, and privacy in Section 3771(a)(8), "like the other seven rights, should be understood as applying only after the filing of criminal charges against a defendant." Id. After the Department of Justice issued the OLC Opinion, Senator Kyl stated in a letter to the Attorney General that "[w]hen Congress enacted the CVRA, it intended to protect crime victims throughout the criminal justice process - from the investigative phases to the final conclusion of a case." Letter from Senator Kyl to Attorney General Holder (June 6, 2011), reprinted in 157 Cong. Rec. S3609, 2011 WL 2223980. Later in 2011, Senator Kyl reiterated that position. Letter from Senator Kyl to Attorney General Holder (November 2, 2011), reprinted in 157 Cong. Rec. 57060-01, 2011 WL 5208819. Senator Kyl's post-enactment interpretation of the CVRA is not consistent with the statute's text, history, and purpose (as evidenced by Senator Kyl's own participation in the colloquy with Senator Feinstein). If Section 3771(a)(1) were construed to apply during investigations, a person claiming "crime victim" status would be entitled to seek a court order for protection without any charge pending. In such a scenario, a federal judge would be required to decide whether a federal offense existed, which may require fact-finding that could adversely affect both an ongoing investigation and any ultimate prosecution. Cf. United States v. Atlantic States Cast Iron Pipe Company, 612 F. Supp. 2d 453, 535 (D. N.J. 2009) (recognizing in sentencing context that court, in light of CVRA's definition of "crime victim," must "make factual findings to determine" whether harm was caused by a "federal offense"). What is more, a putative crime victim would be entitled to seek a writ of mandamus within 72 hours in an "independent cause of action against the district judge," In re Stewart, 641 F.3d 1271, 1274 (11th Cir. 2011), creating another round of fact-based litigation concerning a putative "offense" before Executive Branch action had even occurred. Apart from the illogic of such a scenario, an interpretation of the CVRA that rights attach before criminal proceedings are instituted would conflict with the principle that "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case," United States v. Nixon, 418 U.S. 683, 693 (1974), as well as the requirement in Section 3771 (d)(6) of the CVRA requiring that the CVRA not "be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." See OLC Opinion, 2010 WL 6743535 at n. 7. In any event, statements made after a statute's enactment are "not a legitimate tool of statutory interpretation." Bruesewitz v. Wyeth LLC, 562 U.S. 223, 131 S.Ct. 1068, 1081-82 (2011); Sullivan v. Finkelstein, 496 U.S. 617, 631-63 (1990) (Scalia, J., concurring in part) ("the views of a legislator concerning a statute already enacted are entitled to no more weight than the views of a judge concerning a statute not yet passed").10 I° Senator Kyl suggested in an article not long after the CVRA was enacted that the right to be reasonably protected from the accused may apply "without regard to the existence of legal proceedings" (which could be understood to include the pre-complaint context). See Jon Kyl, Steven J. Twist & Stephen Higgins, On the Wings of Their Angels: The Scott Campbell, Stephanie Roper, Wendy Preston, Louanza Gillis, and Nila Lynn Crime Victims' Rights Act, 9 14 EFTA01144337 POE & BURTON PLLC 3. The CVRA's Enforcement Structure. Privileged & Confidential Attorney Work Product DRAFT Just as the provision of rights in Section 3771(a) is best read to apply only in the post- charging context, the CVRA's enforcement structure supports the conclusion that the rights attach only after the government has initiated criminal proceedings. Every enforcement mechanism in the CVRA — including the mechanism that allows crime victims to assert their rights directly — concerns criminal proceedings. First, in Section 3771(b)(1) (under the heading "Rights Afforded"), the CVRA states 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)." That provision explicitly requires courts to afford CVRA rights only during pending criminal proceedings. Second, in Section 3771(d)(3), which allows crime victims to assert their rights by motion, the CVRA "explicitly provides crime victims the right to participate in a pending criminal proceeding without intervening or becoming a party to the litigation by filing a motion on their own behalf." See OW Opinion, 2010 WL 6743535 *9 (emphasis added). Third, in Section 3771(d)(3), the CVRA allows crime victims to seek a writ of mandamus from a court of appeals if the district court denies the relief sought by motion in a pending criminal proceeding. What is more, the CVRA requires "[t]he prosecutor" to advise crime victims that they "can seek the advice of an attorney" with respect to their CVRA rights. See 18 U.S.C. § 3771(c)(2). For the reasons discussed above regarding Section 3771(a)(5) (the right to confer with the attorney for the government in a case), "[t]he prosecutor" may not even be identifiable in some pre-charge contexts. As if to highlight the relation of the enforcement mechanisms only to pending criminal proceedings, no provision of the CVRA explicitly allows crime victims to initiate independent judicial proceedings by any mechanism to enforce the rights granted in Section 3771(a). The legislative history of the CVRA supports the conclusion that the enforcement structure is limited to court proceedings and that "protecting the ability of crime victims to participate in pending criminal proceedings was the primary purpose underlying the Act." See OLC Opinion, 2010 WL 6743535 *9. As the Office of Legal Counsel has stated: Much of the impetus for enactment of the CVRA aro