EFTA00073493.pdf

In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 for writ of mandamus, an argument that Crime Victims' Rights Act (CVRA) did not apply if 955 Pad 1196 criminal proceedings had not been initiated, United States Court of Appeals, Eleventh Circuit. though government did not file a cross-appeal IN RE: Petitioner. from district court's initial determination that CVRA was applicable, which determination had No. 19-13843 been made before district court dismissed alleged victim's civil action against government because (April 14, 2020) alleged perpetrator of child sexual abuse died while the civil action was pending; proceeding Synopsis initiated by alleged victim was not an "appeal," Background: Alleged victim of child sexual abuse brought and while CVRA directed Court of Appeals to civil action against federal government, alleging that apply ordinary standards of appellate review in government violated Crime Victims' Rights Act (CVRA) by a mandamus proceeding brought by a crime failing to confer with alleged victim before entering into victim, CVRA did not direct Court of Appeals non-prosecution agreement (NPA) with alleged perpetrator. to employ rules of procedure for typical appeals. Alleged perpetrator intervened. The United States District Court for the Southern District of Florida, No. 9:08-cv-80736- 18 U.S.C.A. § 3771(dX3). 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 121 Criminal Law iihe Civil liabilities to persons requested remedies were denied and the action was dismissed, injured; reparation 411 F.Supp.3d 1321. Alleged victim petitioned for writ of Victim rights under federal Crime Victims' mandamus. 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 (Holding:) The Court of Appeals, Newsom, Circuit Judge, a defendant, either by complaint, information, held that as a matter of first impression, victim rights under CVRA, including the right to confer with government's or indictment. P 1 18 U.S.C.A. § 3771(a)(5, 8), lawyers and the right to be treated fairly by them, do not I it t (c)(1), (d)(3). attach until criminal proceedings have been initiated against a defendant. 131 Criminal Law 4" Civil liabilities to persons injured; reparation Petition denied. Rights under federal Crime Victims' Rights Tjoflat, Circuit Judge, filed a concurring opinion. Act (CVRA), including right to confer with federal government's lawyers and right to Hull, Senior Circuit Judge, filed a dissenting opinion. be treated fairly by them, had not attached when government entered into non-prosecution Procedural Posture(s): Petition for Writ of Mandamus. agreement (NPA) with alleged perpetrator of federal crimes relating to sexual abuse of minors and sex trafficking, where government had not West Hcadnotes (9) filed charges or othenvise commenced criminal proceedings against alleged perpetrator, who Criminal Law 6•• Civil liabilities to persons pursuant to the NPA pled guilty to two state injured; reparation prostitution offenses. 1.[ I 18 U.S.C.A. § 3771(a) Government did not waive, for consideration by (5, 8), (dX6). Court of Appeals on alleged victim's petition 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 181 Constitutional Law Nature and scope in factors general In construing a statute, the court begins with a The Executive Branch has exclusive authority careful examination of the statutory text, looking and absolute discretion to decide whether to to the particular statutory language at issue, as prosecute a federal criminal case, and this well as the language and design of the statute as prosecutorial discretion flows not from a desire a whole. to give carte blanche to law enforcement officials but from recognition of the constitutional principle of separation of powers. 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 Attorneys and Law Firms a statutory provision that may seem ambiguous in isolation may be clarified by the remainder of *1198 Paul Cassell, University of Utah College of the statutory scheme. Law, SALT LAKE CITY, UT, Bradley James Edwards, EdwardsPottinger, LLC, FORT LAUDERDALE, FL, for Petitioner. 161 Federal Civil Procedure 0. Motions in Richard Christian Komando, Bradley Garrison & Komando, General ORANGE PARK, FL, for Amicus Curiae. A "motion" is a request filed within the context of an ongoing judicial proceeding, not a vehicle Nathan Parker Kitchens, Jill E. Steinberg, U.S. Attorney's for launching a new and freestanding piece of Office, ATLANTA, GA, for Mandamus Respondent. litigation. 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 171 Federal Courts 4- Mandamus While a petition for a writ of mandamus is an Before NEWSOM, TJOFLAT, and HULL, Circuit Judges. original application to the Court of Appeals, the writ is not an independent grant of appellate Opinion jurisdiction but, rather, may go only in aid NEWSOM, Circuit Judge: of appellate jurisdiction that exists on some other basis; thus, the minimum condition for This case, which is before us on a petition for writ of mandamus relief is that the case be one that may mandamus, arises out of a civil suit filed under the Crime lie within the prospective future jurisdiction of Victims' Rights Act of 2004. Petitioner Courtney Wild the Court of Appeals, or that has in fact come is one of more than 30 women—girls, really—who were within its jurisdiction in the past. 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- 181 Criminal Law ar- Preliminary examination; prosecution agreement with Epstein in 2007, they violated her arraignment; appearance; bail rights under the CVRA—in particular, her rights to confer The Sixth Amendment right to counsel does not with the government's lawyers and to be treated fairly by attach until, at the earliest, a suspect's initial them. appearance before a judicial officer. U.S. Const. Amend. 6. 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 By May 2007, government lawyers had completed both an left in the dark—and, so it seems, affirmatively misled—by 82-page prosecution memo and a 53-page draft indictment government lawyers, we find ourselves constrained to deny alleging that Epstein had committed numerous federal sex her petition. We hold that at least as matters currently stand crimes. In July, Epstein's lawyers sent a detailed letter to —which is to say at least as the CVRA is currently written— prosecutors in an effort to convince them that, in fact, Epstein rights under the Act do not attach until criminal proceedings hadn't committed any federal offenses. By September, the have been initiated against a defendant, either by complaint, sides had exchanged multiple drafts of what would become information, or indictment. Because the government never an infamous non-prosecution agreement ("NPA"). Pursuant filed charges or otherwise commenced criminal proceedings to their eventual agreement, Epstein would plead guilty against Epstein, the CVRA was never triggered. It's not a in Florida court to two state prostitution offenses, and, in result we like, but it's the result we think the law requires. 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 I the state crimes as agreed and was sentenced to 18 months' imprisonment, 12 months' home confinement, and lifetime The facts underlying this case, as we understand them, are sex-offender status. beyond scandalous—they tell a tale of national disgrace. The district court found that "[f]rom the time the FBI began Over the course of eight years, between 1999 and 2007, investigating Epstein until September 24, 2007"—when the well-heeled and well-connected financier Jeffrey Epstein and government formally executed the NPA with Epstein— multiple coconspirators sexually abused more than 30 minor federal prosecutors "never conferred with the victims about girls, including our petitioner, in Palm Beach, Florida and a[n] NPA or told the victims that such agreement was under elsewhere in the United States and abroad. Epstein paid his consideration." Doe I v. United States, 359 F. Supp. 3d 1201, employees to find minor girls and deliver them to him—some 1208 (S.D. Fla. 2019). Worse, it appears that prosecutors as young as 14. Once Epstein had the girls, he either sexually worked hand-in-hand with Epstein's lawyers—or at the very abused them himself, gave them over to be abused by others, least acceded to their requests—to keep the NPA's existence or both. Epstein, in turn, paid bounties to some of his victims and terms hidden from victims. The NPA itself provided to recruit other girls into his ring. that "[t]he parties anticipate that this agreement will not be made part of any public record" and, further, that "[i]f the Following a tip in 2005, the Palm Beach Police Department United States receives a Freedom of Information Act request and the FBI conducted a two-year investigation of Epstein's or any compulsory process commanding the disclosure of the conduct. After developing substantial incriminating evidence, agreement, it will provide notice to Epstein before making the FBI referred the matter for prosecution to the United that disclosure." Moreover, at approximately the same time States Attorney's Office for the Southern District of Florida. that the sides concluded the NPA, they began negotiating Beginning in January 2007, and over the course of the ensuing about what prosecutors could (and couldn't) tell victims about eight *1199 months, Epstein's defense team engaged in the agreement. Seemingly in deference to Epstein's lawyers' extensive negotiations with federal prosecutors in an effort repeated requests, the government held off—for nearly an to avoid indictment. At the same time, prosecutors were entire year—on notifying Epstein's victims of the NPA's corresponding with Epstein's known victims. As early as existence. March 2007, they sent letters advising each one that "as a victim and/or witness of a federal offense, you have a number And to be clear, the government's efforts seem to have of rights." The letters, which the government distributed over graduated from passive nondisclosure to (or at least close the course of about six months, went on to enumerate the to) active misrepresentation. In January 2008, for example, eight CVRA rights then in force—including, as particularly approximately four months after finalizing and executing the relevant here, "[t]he reasonable right to confer with the NPA, the government *1200 sent a letter to petitioner stating attorney for the [Government] in the case" and "the right to be that Epstein's case was "currently under investigation," treated with fairness and with respect for the victim's dignity explaining that "[t]his can be a lengthy process," and and privacy." "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 Over the course of the ensuing decade, the district court issued letter to another victim in May 2008, some eight months after a number of significant rulings. For our purposes, three of the inking the NPA. 2 court's orders are particularly important. If secrecy was the goal, it appears to have been achieved Initially, in 2011 the district court "addresse[d] the threshold —there is no indication that any of Epstein's victims were issue whether the CVRA attaches before the government informed about the NPA or his state charges until after he brings formal charges against the defendant." Does, 817 pleaded guilty. On the day that Epstein entered his guilty plea F. Supp. 2d at 1341. The court held that "it does because in June 2008, some (but by no means all) victims were notified the statutory language clearly contemplates pre-charge that the federal investigation of Epstein had concluded. But proceedings." Id. As relevant here, *1201 the district court it wasn't until July 2008—during the course of this litigation relied principally on two CVRA provisions in so holding. —that petitioner learned of the NPA's existence, and until First, it pointed to 18 U.S.C. § 3771(c)(1), which the August 2008 that she finally obtained a copy of the agreement. parties here have called the Act's "coverage" provision. That subsection—of which much more later—states that We are doubtlessly omitting many of the sad details of this "[o]fficers and employees of the Department of Justice and shameful story. For our purposes, we needn't discuss the other departments and agencies of the United States engaged particulars of Epstein's crimes, or the fact that the national in the detection, investigation, or prosecution of crime shall media essentially ignored for nearly a decade the jailing of make their best efforts to see that crime victims are notified a prominent financier for sex crimes against young girls. 3 of, and accorded, the rights described in subsection (a)." Today, the public facts of the case are well known—Epstein The district court held that "[s]ubsection (c)(1 )'s requirement was eventually indicted on federal sex-trafficking charges in that officials engaged in 'detection [or] investigation' afford the Southern District of New York, and in August 2019, while victims the rights enumerated in subsection (a) surely awaiting trial, he was found dead in his jail cell of an apparent contemplates pre-charge application of the CVRA." Does, suicide. 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 11 "motion" either "in the district court in which a defendant In July 2008, petitioner brought suit in the United States is being prosecuted or, if no prosecution is underway, in the District Court for the Southern District of Florida, styling district court in the district in which the crime occurred." her initial filing an "Emergency Victim's Petition for If, the district court reasoned, "the CVRA's rights may be Enforcement of Crime Victim's Rights Act." As the district enforced before a prosecution is underway, then, to avoid a court explained, "because no criminal case was pending" strained reading of the statute, those rights must attach before at the time—no federal charges having been filed against a complaint or indictment formally charges the defendant with Epstein or anyone else—petitioner "filed [her] petition as the crime." Does, 817 F. Supp. 2d at 1342. Finally, the district a new matter ... which the Clerk of Court docketed as a court cited tt t In re Dean, in which the Fifth Circuit had civil action." Does v. United States, 817 F. Supp. 2d 1337, observed that "[a]t least in the posture of th[e] case" before 1341 n.4 (S.D. Fla. 2011). Petitioner alleged that she was a it—the court emphasized that it wasn't "speculat[ing] on the "crime victim" within the meaning of the CVRA and that applicability to other situations"—the victim's right to confer by keeping her in the dark about their dealings with Epstein, with prosecutors applied pre-charge. f 1527 F.3d 391, 394 federal prosecutors had violated her rights under the CVRA (5th Cir. 2008). Having "determined ... as a matter of law —in particular, her rights "to confer with the attorney for the [that] the CVRA can apply before formal charges are filed," Government in the case." 18 U.S.C. § 377I(aX5), and "to the district court here "defer[red]" ruling on the question be treated with fairness and with respect for [her] dignity and whether federal prosecutors had violated the Act until the privacy," t § 3771(aX8). 4 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 the coconspirators—as non-parties to the suit—couldn't be issued a pair of rulings that prompted the mandamus petition estopped from asserting the NPA's validity at any future now before us. In February 2019, the court found that the prosecution. See id. Second, the court denied petitioner's government had infringed petitioner's CVRA rights. See Doe request for an injunction on the ground that she had failed 1, 359 R Supp. 3d at 1222. In particular, the court held to show "continuing, present adverse effects" or any "real that federal prosecutors violated the Act by "enter[ing] into vt a[n] NPA with Epstein without conferring with Petitioner[ ] and immediate" threat of future CVRA violations. [ Id. during its negotiation and signing." Id. at 1219. "Had the at 1328. Third, the court rejected petitioner's requests for Petitioner[ ] been informed about the Government's intention a victim-impact hearing and a meeting with Acosta on the to forego federal prosecution of Epstein in deference to grounds that petitioner had already participated in an Epstein- him pleading guilty to state charges," the district court related hearing in New York, that the Epstein prosecution emphasized, she "could have conferred with the attorney for had concluded, and that the government had already agreed the Government and provided input." Id. at 1218. The court to confer with victims concerning any ongoing investigation concluded that it was precisely "this type of communication of Epstein's coconspirators. See id. at 1328-29. Fourth, between prosecutors and victims that was intended by the the court denied petitioner's discovery requests for grand- passage of the CVRA." Id. at 1291. jury materials and investigative files. See c a id. at 1329- Having found CVRA violations, the court directed the parties 40. Fifth, the court declined to order "educational remedies," —which by then included Epstein as an intervenor—to brief as the government had already agreed to implement CVRA "the issue of what remedy, if any, should be applied." Id. at training for employees of the Southern District's United 1222. In response, petitioner proposed multiple remedies: (1) States Attorney's office. Id. at 1330. And finally, the rescission of the NPA; (2) an injunction against further CVRA court rejected petitioner's request for sanctions, fees, and violations; (3) an order scheduling a victim-impact hearing restitution. See I id. at 1330-31. and a meeting between victims and Alexander Acosta, the former United States Attorney for the Southern District of Seeking review of the district court's order refusing every Florida; (4) discovery of certain grand-jury materials, records remedy that she had sought, petitioner filed—as the CVRA regarding prosecutors' decision to enter into the NPA, and directs—a petition for writ of mandamus with this Court. files concerning law-enforcement authorities' investigation of Epstein; (5) mandatory CVRA training for employees See 18 U.S.C. § 3771(dX3) (stating that "[i]f the district of the Southern District's United States Attorney's office; court denies the relief sought," a victim "may petition the and (6) sanctions, *1202 attorneys' fees, and restitution. In court of appeals for a writ of mandamus"). The government August 2019, while the court was considering the parties' filed a "brief in response" in which it not only opposed briefing regarding remedies, Epstein died of an apparent petitioner's arguments on the merits, but also raised several suicide; his death prompted another round of briefing on the threshold arguments concerning the scope of the CVRA issue of mootness. and the circumstances in which rights under the Act are judicially enforceable. In reply, petitioner contended (among In September 2019, having considered the parties' briefing other things) that by failing to "cross appeal," the government and the impact of Epstein's death, the district court dismissed had waived its arguments about the CVRA's applicability and petitioner's suit, denying each of her requested remedies. enforceability. 5 See f Doe 1 v. United States, 411 R Supp. 3d 1321 (S.D. sits 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 This case presents a host of issues, many of first impression. Before jumping in, we begin with an introductory summary subject to prosecution. See id. at 1326. Relatedly, the of the CVRA. 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 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 a crime victim, the court shall ensure that the crime victim (and only two pages) of the United States Code. See 18 is afforded the rights described in subsection (a)." Id. U.S.C. § 3771. The entire Act comprises just six subsections, § 3771(b)(1). (Subsection (b)(2) pertains to habeas corpus the pertinent portions of which we will summarize briefly. proceedings, in which crime victims enjoy a more limited set of rights; it isn't relevant here.) *1203 The Act opens, in subsection (a), with a catalogue of "rights" that federal law guarantees to "crime victims." (The Subsection (c), titled "Best efforts to accord rights," imposes Act separately defines the term "crime victim" to mean "a obligations on non judicial actors. One of its constituent person directly and proximately harmed as a result of the clauses—which we introduced earlier as the so-called "coverage" provision—states as follows: 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: Officers and employees of the (a) Rights of crime victims.—A crime victim has the Department of Justice and other following rights: departments and agencies of the United States engaged in the detection, (1) The right to be reasonably protected from the investigation, or prosecution of crime accused. shall make their best efforts to see that crime victims are notified of, (2) The right to reasonable, accurate, and timely notice of and accorded, the rights described in any public court proceeding, or any parole proceeding, subsection (a). involving the crime or of any release or escape of the accused. (3) The right not to be excluded from any such public 18 U.S.C. § 3771(cX1). court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by Subsection (d) addresses "Enforcement and limitations." the victim would be materially altered if the victim heard Several of subsection (dX3)'s provisions are relevant other testimony at that proceeding. here. One—the "venue" provision—states that "[t]he rights (4) The right to be reasonably heard at any public described in subsection (a) shall be asserted in the district proceeding in the district court involving release, plea, court in which a defendant is being prosecuted for the crime sentencing, or any parole proceeding. or, if no prosecution is underway, in the district court in which the crime occurred." Another provides that "[i]f the district (5) The reasonable right to confer with the attorney for court denies the relief sought, the movant may petition the the Government in the case. court of appeals for a writ of mandamus"—and as amended in 2015, and thus before petitioner sought review here, it goes (6) The right to full and timely restitution as provided in on to clarify that in deciding any mandamus petition under the law. CVRA, "the court of appeals shall apply ordinary standards of appellate review." Subsection (dX6) is also relevant in two (7) The right to proceedings free from unreasonable respects. First, it states that "Nothing in this chapter shall delay. be construed to authorize a cause of action for damages." (8) The right to be treated with fairness and with respect Second, and separately, it emphasizes that "[n]othing in for the victim's dignity and privacy. this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his 18 U.S.C. § 3771(a). direction." Subsection (b), titled "Rights afforded," focuses on courts' *1204 Finally, subsection (f)—we've already introduced responsibilities under the Act. It provides—as relevant here subsection (e), which defines the term "crime victim"— —that "[i]n any court proceeding involving an offense against 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 proceedings begin. See In re Dean, 527 F.3d 391, 394 by responsible officials with the obligations" concerning (5th Cir. 2008). The Sixth Circuit has deemed it "uncertain" those victims. Id. § 3771(f)(1). whether CVRA protections apply "prior to [the] filing of ... charges." In re Acker, 596 F.3d 370, 373 (6th Cir. 2010). The With that primer, we proceed to address petitioner's case. 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 IV that CVRA rights can attach prior to the commencement of criminal proceedings), with, e.g., United States v. Daly, No. Petitioner contends—and as already explained, the 3:11CR121 AWT, 2012 WL 315409, at *4 (D. Conn. Feb. 1, undisputed facts show—that federal prosecutors in the 2012) (holding to the contrary). Southern District of Florida negotiated "a secret non- prosecution agreement" with Epstein, and that "[f]rom the As already explained, the district court here concluded that the time that the FBI began investigating Epstein through the CVRA can apply before the initiation ofcriminal proceedings consummation of the secret NPA, the Government never —"pre-charge," for short—and, accordingly, that petitioner conferred with Epstein's victims about the NPA [or] even enjoyed the protections of the Act during the period that told them that such an agreement was under consideration." preceded the execution of Epstein's NPA. In particular, Petition for Writ of Mandamus at 4-5. By keeping her (and petitioner asserts in these proceedings that the government others) in the dark concerning Epstein's NPA, petitioner violated her "reasonable right to confer" with the lead asserts, the government violated the CVRA. prosecutor, L 18 U.S.C. § 3771(aX5), and her right "to be [II The unique circumstances of this case—and in particular, treated with fairness," id. § 3771(aX8)—neither of which, the fact that Epstein was never charged in the Southern she says, is limited by its terms to the post-charge phase District of Florida—tee up what the district court correctly of a criminal prosecution. 7 In support of her position that called a "threshold" question: Does the CVRA apply in CVRA rights can apply before criminal proceedings begin, the period before criminal proceedings are initiated, either by criminal complaint, information, or indictment? If it petitioner points (as did the district court) to II a § 3771(c) does, then we must proceed to consider a cascade of (1)—which refers to federal-government agencies engaged logically subsequent questions—among them, (1) whether in the "detection [and] investigation" of crime, in addition the Act authorized the district court to rescind the NPA, to its "prosecution"—and to C a § 3771(d)(3) -which, in both generally and, more specifically, as applied to Epstein's specifying the venue where a victim should seek relief under alleged coconspirators; (2) whether petitioner was entitled the Act, refers to the eventuality that "no prosecution is to discovery of certain grand-jury materials, DOJ records underway." pertaining to prosecutors' decision to enter into the NPA, and FBI files concerning the Epstein investigation; (3) whether The interpretation of the CVRA that petitioner advances, and petitioner's participation in an Epstein-related victim-impact that the district court adopted, is not implausible; the CVRA hearing in New York effectively moots her request for relief could be read to apply pre-charge. We conclude, though— here; and (4) whether federal law entitles petitioner to recover reluctantly, especially given the mistreatment that petitioner attorneys' fees. If, by contrast, the CVRA doesn't apply seems to have suffered at the hands of federal prosecutors— before the commencement of criminal proceedings, then ow that the Act is neither best nor most naturally read that way. inquiry is at an end. 6 For reasons that we will explain, we hold that (1) the CVRA's text and structure, (2) the historical context in which the Act *1205 [2] [3] Whether the CVRA applies prior to the was passed, and (3) the prosecutorial-discretion principles initiation of criminal proceedings is not just a threshold that the Act was designed to safeguard—and which, we think, question, but also a question of first impression in this Circuit. petitioner's interpretation would compromise—demonstrate The Fifth Circuit has stated—albeit in dictum, without that its protections apply only after the initiation of criminal meaningful explanation, and seemingly without the benefit of proceedings.If Congress believes that we have misinterpreted adversarial testing—that the Act can apply before criminal 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 the eight rights listed in § 3771(a)—all except for those its scope should be expanded—then it should amend the Act specified in subsections (5) and (8)—either expressly refer to make its intent clear. 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, A to "proceeding[s]," "public proceedings," or "public court proceedings." Not surprisingly, there seems to be general [4] In construing the CVRA, "we begin, as we must, with agreement that these "proceeding"-focused rights apply only a careful examination of the statutory text," *1206 after the filing of a complaint or criminal charges. See Reply Henson v. Santander Consumer USA Inc., — U.S. —, in Supp. of Pet. at 17; Paul G. Cassell, et aL, Crime Picini's' 137 S. Ct. 1718, 1721, 198 L.Ed.2d 177 (2017), looking Rights During Criminal Investigations? Applying the Crime "to the particular statutory language at issue, as well as the Victims' Rights Act Before Criminal Charges Are Filed, 104 J. of Crim. L. and Criminology 59, 71 (2014). language and design of the statute as a whole," K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, Subsections (aX I ) and (6) aren't quite as clear, but they 100 L.Ed.2d 313 (1988). On balance, we conclude that the too are best understood as specifying rights that attach Act's terms—including the provisions on which petitioner only after criminal proceedings have begun. Subsection relies—demonstrate that its protections apply only after the (I) guarantees a crime victim's right to protection from commencement of criminal proceedings. "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 1 been commenced. See, e.g., IVebster's New International Dictionary 17 (2d ed. 1944) (defining "accused" as "one [51 We begin where petitioner does, with the catalogue of "rights"—quoted in full above—that the CVRA guarantees charged with an offense; the defendant in a criminal case"); to "crime victims." (As already noted, the Act defines the see also"'Michigan v. Jackson, 475 U.S. 625, 632,106 S.Ct. term "crime victim"—more on that later.) Petitioner relies 1404, 89 L.Ed.2d 631 (1986) ("[A]fler a formal accusation has been made ... a person who had previously been just a chiefly on § 3771(a)(5)'s guarantee of a "reasonable right to confer with the attorney for the Government in the case," 'suspect' has become an 'accused' within the meaning of the Sixth Amendment...:'). Subsection (aX6), *1207 which and !' I § 3771(a)(8)'s guarantee of the "right to be treated guarantees a victim's right to "full and timely restitution," with fairness." She contends that by failing to inform her— likewise presupposes the initiation—and indeed perhaps the and worse, affirmatively misleading her—about its ongoing maturation or even conclusion—of criminal proceedings. negotiations with Epstein, the government violated both Black's, for instance, defines the term "restitution," in relevant provisions. We will address subsections (a)(5) and (8) in part, to mean "[c]ompensation for loss; esp., full or partial due course, but because "[s]tatutory construction ... is a compensation paid by a criminal to a victim, not awarded in holistic endeavor," and because "[a] provision that may seem a civil trial for tort, but ordered as part of a criminal sentence ambiguous in isolation is often clarified by the remainder of or as a condition of probation." Black's Law Dictionary 1507 the statutory scheme," It a UnitedSam. Ass'n ofTex. a Timbers (10th ed. 2014). ofInwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988), we first examine the balance of So, it seems to us, the rights enumerated in subsections (a) (I), (2), (3), (4), (6), and (7) are properly understood as [ § 3771(a). 8 applying only after the initiation of criminal proceedings. And again, petitioner doesn't really contend otherwise. Instead, In the main, anyway—and there isn't any real dispute about she focuses on subsections (a)(5) and (8), which she says are this—the CVRA's enumeration seems to focus on the post- framed broadly enough that they can be understood to apply charge phase of a criminal prosecution, and in particular on pre-charge. Let's take a closer look. ensuring that crime victims have notice of(and an opportunity to be heard in) pending criminal proceedings. Indeed, six of 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 subsection (aX5) was intended to apply pre-charge, during right to confer with the attorney for the Government in the investigation phase, it makes little sense that Congress the case." Petitioner and her lead counsel (in his academic would have tethered the conferral right to a single government writings) emphasize that this provision refers to the attorney lawyer. handling "the case" rather than "the charges," Reply in Supp. of Pet. at 17, and they assert that the term "case" can "refer On balance, therefore—and particularly in the light of both to a judicial case before a court and an investigative subsections (a)(I), (2), (3), (4), (6), and (7), all of which case pursued by a law enforcement officer," Cassell et al., clearly apply only after the initiation of criminal proceedings supra, at 72 (emphasis added).9 Although it's true, at least —we conclude that § 3771(a)(5)'s conferral right does in the abstract, that the term "case" can mean either thing, not attach during the pre-charge, investigatory phase. Rather, in legal parlance the judicial-case connotation is undoubtedly subsection (a)(5) is best understood as guaranteeing a crime primary. See, e.g., Black's, supra, at 258-59 (defining "case" victim's right to consult with the lead prosecutor—i.e., "the first as "[a] civil or criminal proceeding, action, suit or attorney for the Government"—in a pending prosecution controversy at law or in equity" and only second as "[a]