EFTA01098092.pdf

Case 9:08-cv-80736-KAM Document 181 Entered on FLSD Docket 12/10/2012 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 v. UNITED STATES SUPPLEMENTAL AUTHORITY IN SUPPORT OF JANE DOE #1 AND JANE DOE #2'S RESPONSE TO GOVERNMENT'S SEALED MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to provide supplemental authority in support of their Response to Government's Sealed Motion to Dismiss for Lack of Subject Matter Jurisdiction (DE 127). At issue in these pleadings is whether the victims' petition for enforcement of their CVRA rights (filed in July 2008) should now be dismissed for a purported lack of subject matter jurisdiction. The Government has pointed to certain limitations on relief found in the CVRA as somehow restricting the victims' ability to obtain relief. Those limitations, found in 18 U.S.C. § 3771(d)(5), apply only to crime victims' efforts to obtain a "new trial" or to "re-open a plea or sentence," as the victims specifically argued in their Response. See DE 127 at 5. In a recently-published decision, the Fifth Circuit reversed a district court ruling and agreed with the victims' interpretation of the statute. In In re Allen, ---F.3d---, 2012 WL 4009717 (5th Cir. 2012), the Fifth Circuit refused to apply certain time limits found in § 3771(d)(5) to crime victims seeking relief under the Act. The Fifth Circuit held that: "Because 1 EFTA01098092 Case 9:08-cv-80736-KAM Document 181 Entered on FLSD Docket 12/10/2012 Page 2 of 4 Petitioners are not seeking to reopen a plea or sentence, that provision is inapplicable." Id. at *1 (emphasis added).' Jane Doe #1 and Jane Doe #2 respectfully submit that this holding supports their argument that § 3771(d)(5) is inapplicable to this case, meaning that the Court remains free to adopt all other remedies, including equitable remedies, to enforce the CVRA. The Government's motion to dismiss should accordingly be denied for this reason and the other reasons previously advanced by the victims. The arguments that the Fifth Circuit agreed with were advanced by one of victims' counsel in this case, Professor Cassell. 2 EFTA01098093 Case 9:08-cv-80736-KAM Document 181 Entered on FLSD Docket 12/10/2012 Page 3 of 4 DATED: December 10, 2012 Respectfully Submitted, s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 Florida Bar No.: 542075 E-mail: [email protected] and Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: [email protected] Attorneys for Jane Doe #1 and Jane Doe #2 3 EFTA01098094 Case 9:08-cv-80736-KAM Document 181 Entered on FLSD Docket 12/10/2012 Page 4 of 4 CERTIFICATE OF SERVICE The foregoing document was served on December 10. 2012. on the following using the Court's CM/ECF system: Dexter Lee A. Marie Villafafia Assistant U.S. Attorneys 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: [email protected] E-mail: ann.marie.c.villafanaeusdoj.gov Attorneys for the Government Roy Black, Esq. Jackie Perczek, Esq. Black, Srebnick, Kornspan & Stumpf, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, FL 33131 (305) 37106421 (305) 358-2006 4 EFTA01098095