EFTA00208513.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 and JANE DOE #2, Petitioners, vs. UNITED STATES, Respondent. UNITED STATES' OPPOSITION TO JANE DOE #1 AND JANE DOE #2'S MOTION FOR FINDING OF VIOLATIONS OF THE CRIME VICTIM RIGHTS ACT AND REQUEST FOR A HEARING ON APPROPRIATE REMEDIES Respondent, United States of America, by and through its undersigned counsel, files its Opposition to Jane Doe #1 and Jane Doe #2's Motion for Finding of Violations of the Crime Victims Rights Act and Request for a Hearing on Appropriate Remedies, and states: I. INTRODUCTION The issue before this Court is whether the petitioners, Jane Doe #1 and Jane Doe #2, had any rights under 18 U.S.C. § 377I(a), in the absence of a criminal charge being filed in the Southern District of Florida, charging someone with the commission of a federal crime in which petitioners were victims. Resolution of this issue is a matter of statutory interpretation of the language of the Crime Victims Rights Act (CVRA). Whether the government had a legal duty under § 3771(a) is not resolved with reference to the position taken by employees of the Department of Justice (DOJ) in letters to the petitioners, or the defense attorneys representing Jeffrey Epstein. Nor are the subjective beliefs of DOJ employees relevant to the issue of whether a duty existed under § 3771(a)(5) to consult with petitioners prior to entering into a Non-Prosecution Agreement. The CVRA clearly states that it creates not civil "cause of action" for victims and that it does not "impair the prosecutorial discretion of the Attorney General or any officer under his direction." 18 U.S.C. § 3771(d)(6). In this case, that officer was the U.S. Attorney for the Southern District of Florida, and he exercised his discretion by deferring prosecution in favor of prosecution by authorities of the State of Florida. Thus, no federal charges were ever filed, and the CVRA was not triggered. II. PROCEDURAL HISTORY This matter commenced on July 7, 2008, with the filing of Petitioner's Emergency Petition for Enforcement of Crime Victim's Rights Act (DE1), and a Certificate of Emergency (DE2). Ft The Emergency Petition noted that Jeffrey Epstein had recently pled guilty to state court criminal charges (DE1 at 1.) The Petition then alleged: 3. Upon information and belief, the Defendant a is engaged in plea negotiations with the Office of the United States Attorney for the Southern District of Florida concerning federal crimes which EFTA00208513  he is alleged to have committed against minor children, including the Petitioner. Such negotiations may likely result in a disposition of the charges in the next several days. 4. Under the CVRA, before any charges are filed against the Defendant, the Petitioner has the rights (among others) to notice of her rights under the CVRA, to confer with the prosecutors, and to be treated with fairness. As soon as charges are filed, the Petitioner has the rights (among others) to timely notice of court proceedings, the right not to be excluded from such proceedings, the right to be heard at such public proceedings regarding conditions of release, any plea, and any sentencing, the right to confer with the attorney for the government, the right to restitution, and the right to be treated with fairness and with respect for her dignity and privacy. 5. The Petitioner has been denied her rights in that she has received no consultation with the attorney for the government regarding the possible disposition of the charges, no notice of any public court proceedings, no information regarding her right to restitution, and no notice of rights under the CVRA, as required under law. 6. The Petitioner is in jeopardy of losing her rights, as described above, if the government is able to negotiate a plea or agreement with the Defendant without her participation and knowledge. WHEREFORE, for the reasons outlined above, the Petitioner respectfully requests this Court to grant her Petition, and to order the United States Attorney to comply with the provisions of the CVRA prior to and including any plea or other agreement with the Defendant and any attendant proceedings. (DE1 at 1-2.) On the same day, the government was ordered by the Court to respond. (DE3). Two days later, on July 9, 2008, the Government filed its Response and an accompanying Declaration, establishing that (1) no federal criminal case charging Epstein had ever been filed and that a non-prosecution agreement ("NPA") had been signed and (2) despite this, the U.S. Attorney's Office had used its best efforts to comply with the CVRA. (DE 6-8, 12-14.) On July 10, 2008, the Court set the matter for a hearing on July 11, 2008. (DE 5.) At the hearing, Jane Doe #2 was added as a Petitioner. (DE15 at 14.) The Court inquired of Petitioners what remedy they sought, and Petitioners made clear that they wanted to invalidate the Non-Prosecution Agreement with Epstein. ( Id. at 12.). The Court recognized that Epstein had entered his State court guilty plea in reliance on the NPA ( id. at 20), and the Petitioners concurred ( id. at 20-21). Nonetheless, the Petitioners asked the Court "to vacate the agreement." ( Id. at 21.) The Court asked the Petitioners whether there was "any need to rush to a decision in this matter?" ( Id. at 24.) The Petitioners said that there was not — "Your Honor is correct in stating that it is not an emergency and it doesn't need to happen today. . . . It doesn't seem like there will be any prejudice to any party." ( Id. at 26.) a Two weeks later, on July 29, 2008, the government filed a notice informing the Court of its position that there was no need for an evidentiary hearing and that the matter was ready for ruling. (DE17.) A few days later, Petitioners filed a response to the government's notice, arguing that the documents submitted by the government in its attachments to the Declarations it had filed showed that violations of the EFTA00208514 CVRA had occurred and demanding the production of the NPA and the report of an interview with Jane Doe #1. a l (DE19.) In that "Response," the Petitioners asked the Court to enter "judgment in their favor that their rights under the CVRA have been violated." ( Id. at 11.) On August 14, 2008, the Court held a status conference. (DE25.) The parties discussed two matters. First, there was a discussion of the status of the litigation. Second, there was a discussion of the Petitioners' request to have access to the NPA. With regard to the second topic, the Court decided to order the government to make the NPA available to any and all identified victims, so long as they agreed to abide by the terms of a Protective Order, and ordered the parties to work out the terms of such a Protective Order. (DE27 at 22-24.) As to the first topic, the Court inquired of the Petitioners whether there was a sufficient factual record for the Court to make its determination. Petitioners responded: "I believe that you do have a sufficient record, in that I don't think that — I think that we're in agreement that additional evidence does not need to be taken in the case for Your Honor to make a ruling." (DE27 at 4 (emphasis added).) Petitioners also stated that, "because of the legal consequences of invalidating the current agreement, it is likely not in my clients' best interest to ask for the relief that we initially asked for. So in order to effectively evaluate the situation and ask for the appropriate relief, we would just be asking Your Honor at this point in time to allow us to see the full entire plea agreement . .." ( Id.) The Court enquired, "All right. And then if I grant that relief, you will evaluate the agreement and then decide whether to either dismiss your case or go forward and ask for some additional relief?" ( Id.) Petitioners responded, "That's correct, Your Honor." ( Id. at 5.) One week after the status conference, on August 21, 2008, the Court entered the agreed Protective Order, (DE26,) and the Petitioners were provided with a copy of the NPA. More than a month later, on September 25, 2008, Petitioners did not dismiss their action, but, rather, asked for additional relief — that is, they filed a motion to unseal the NPA. (DE28.) On October 8, 2008, the government responded (DE29), stating that the NPA was never filed with the Court and there was no reason to unseal the document. Petitioners filed a Reply on October 16, 2008, (DE30,) asserting, in part, that the failure to unseal the NPA allowed the government to file factually inaccurate Declarations. In the Reply, Petitioners again did not ask for any additional relief, now that they had the NPA in their possession, other than their renewed request to unseal the NPA. ( See DE30.) On December 22, 2008, the government filed a Supplemental Declaration of A. Marie Villafafta, which set forth information regarding: (1) how Epstein's attorneys had shifted positions regarding certain portions of EFTA00208515 the NPA, and (2) how the Protective Order had been implemented, in terms of making the NPA available to other victims and their counsel. (DE35.) On February 12, 2009, the Court denied the Petitioners' Motion to Unseal the NPA. (DE36.) Thereafter, there was no action on the case, other than a Notice by Petitioners' counsel of his new address on April 9, 2009. (DE 37.) Despite having told the Court on August 14, 2008 that Petitioners would review the NPA and then advise the Court what relief they wanted to pursue, no such notice was ever filed, other than the motion to unseal the NPA. Seventeen months later, on September 8, 2010, the Court issued an Administrative Order Closing the Case. (DE 38.) Shortly thereafter, Petitioners filed a "Notice in Response to Administrative Order," (DE39,) stating that they intended to file documents soon thereafter in connection with the case. On October 12, 2010, the Court issued an Order to Show Cause for Lack of Prosecution. (DE40.) The Petitioners responded, arguing that its efforts at discovery in the civil cases Petitioners had filed against Epstein precluded dismissal of the instant action. (DE41.) One day later, F5 the Court issued an Order reopening the case. (DE44.) The parties attempted to resolve the matter without success. ( See DE45.) On March 18, 2011, Petitioners filed a series of Motions, including a "Motion for Finding of Violations of Crime Victim's Rights Act." (DE48, 49, 50, 51.) This response follows. ARGUMENT Petitioners are not entitled to any relief in this case for several reasons. First, as stated in the government's response to Petitioners' Emergency Petition, CVRA rights do not attach in the absence of federal criminal charges filed by a federal prosecutor. And crime victims cannot file a stand-alone suit to enforce those rights. This conclusion is required by the CVRA itself and separation of powers principles. Second, despite owing no legal duty, the U.S. Attorney's Office used its best efforts to treat both Petitioners fairly as set forth in the original response to the Emergency Petition, and as further explained herein. Third, Petitioners' failure to prosecute this case in a timely fashion has extinguished their desired remedy under Due Process principles. III. PETITIONERS HAD NO RIGHTS UNDER 18 U.S.C. § 3771(a) BECAUSE CRIMINAL CHARGES WERE NEVER FILED AGAINST EPSTEIN IN THE SOUTHERN DISTRICT OF FLORIDA The CVRA appears in Title 18, "Crimes and Criminal Procedure," and the procedures for enforcing the CVRA were implemented in the Federal Rules of Criminal Procedure. See 18 U.S.C. § 3771; Fed. R. Crim. P. 60. F6 The CVRA clearly states that it creates no civil "cause of action for damages" for victims and that it does not "impair the prosecutorial discretion of the Attorney General or any officer under his direction." 18 U.S.C. § EFTA00208516 3771(d)(6). "Crime victims have not been recognized as parties, and the Federal Rules of Criminal Procedure do not allow them to intervene as parties to a prosecution." In re Amy Unknown , F.3d 2011 WL 988882 at *2 (5TH Cir. Mar. 22, 2011). See also United States v. Aguirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) ("Notwithstanding the rights reflected in the restitution statutes, crime victims are not parties to a criminal sentencing proceeding. ... Thus the baseline rule is that crime victims, as non-parties, may not appeal a defendant's criminal sentence.") While the CVRA provides specific procedures for what should occur if a victim is not accorded rights in "any court proceeding involving any offense against a crime victim," in a federal criminal case, such as a change of plea or sentencing, see 18 U.S.C. §§ 3771(b)(1), (d)(3), no mandates are provided in instances where no federal criminal charges are ever filed. Of the eight victims' rights set forth in 18 U.S.C. § 3771(a), the petition alleges a violation of § 3771(a) (5), the right to consult with the attorney for the Government; § 3771(a)(2), the right to reasonable, accurate, and timely notice of any public court proceeding; § 3771(a)(6), the right to full and timely restitution as provided in law; and notice of their rights under the CVRA. It is undisputed that no federal criminal charges have been filed against Jeffrey Epstein, in the U.S. District Court, Southern District of Florida, pertaining to the sexual abuse of minors. fi The United States submits that, since there was no "case" pending in the Southern District of Florida against Epstein, or any "court proceeding" involving an offense against Jane Doe #1 and Jane Doe# 2, they cannot invoke any protections under the CVRA. Title 18, United States Code, § 3771(a)(5), provides that a "crime victim" has "[t)he reasonable right to confer with the attorney for the Government in the case ." (emphasis supplied). In its interpretation of a federal statute, the court assumes that "Congress used words in a statute as they are commonly and ordinarily understood," and reads the statute to give full effect to each of its provisions. United States v. DBB Inc. , 180 F.3d 1277, 1281 (11 di Cir. 1999), citing United States v. McLymont , 45 F3d 400, 401 (11 di Cir. 1995). Section 3771(a)(5) grants a crime victim the reasonable right to confer with the attorney for the Government "in the case." The phrase "in the case" must be considered since there is a canon of statutory construction that "discourages courts from adopting a reading of a statute that renders any part of the statute mere surplusage." Bailey v. United States , 516 U.S. 137, 146 (1995)(noting that each word in a statute is intended to have "particular, nonsuperfluous meaning"). EFTA00208517  Congress intended the phrase "in the case" to mean a case filed in a federal court. Federal criminal cases are filed in the United States district courts through the filing of a criminal complaint, Fed.R.Crim.P. 3, or indictment, Fed.R.Crim.P. 7. In each instance, an attorney representing the United States Government is required to sign the complaint or indictment. Fed.R.Crim.P. 7(c)(1) provides that "[the] indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged and must be signed by an attorney for the government." Interestingly, section 3771(a)(5) provides that a crime victim has "[t]he reasonable right to confer with the attorney for the Government in the case." The exact phrase "attorney for the government" is used in both Fed.R.Crim.P. 7(c)(1) and 18 U.S.C. § 3771(a)(5), with the addition of the term, "in the case," in latter provision. Thus, each criminal case filed in the district court has an "attorney for the Government" representing the sovereign United States. Petitioners attempt to distort the meaning of "case" by arguing that a case existed in June 2007, when the FBI began investigating the allegations against Epstein. DE 48 at 25-26. In their view, a case commences when a law enforcement agency begins its investigation of a potential crime. This interpretation is completely contrary to the text of section 3771(a)(5), since there is no "attorney for the government" when a crime is first reported to a law enforcement agency. In most instances, the law enforcement agency begins its preliminary investigation without consulting the U.S. Attorney's Office. Only when it appears the investigation may generate a potential for an indictment does the investigative agency refer the matter to the U.S. Attorney's Office. An "attorney for the government" appears only when a complaint or indictment is filed in the district court. Further, as used in legal documents, the word "case" is a term of art that has long been understood to mean "a suit instituted according to the regular course of judicial procedure." Muskrat v. United States , 219 U.S. 346, 356 (1911) (Article III "case" or controversy); see also Black's Law Dictionary (6th ed.) 215 ("case" is a "general term for an action, cause, suit or controversy at law or in equity"). "Whenever the claim of a party under the Constitution, laws or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case." Muskrat , 219 U.S. at 356. A "case," in other words, is an adversarial dispute where one party purposefully invokes the judicial power seeking an adjudication of their rights and obligations. Id. ; see also Black's at 215 (defining "case" as "a question contested before a court of justice"). This general understanding is equally applicable to criminal proceedings. In Chavez v. Martinez , 538 U.S. 760 (2005), the Supreme Court held that a criminal "case" — as distinct from an investigation — "at the very least requires the initiation of legal proceedings." Id. at 766 (holding that police questioning during the course EFTA00208518 of a criminal investigation "does not constitute a `case' within the meaning of the Fifth Amendment's Self- Incrimination Clause) (citing Blyew and Black's Law Dictionary). Finally, Congress's use of the definite article "the" in reference to the word "case" supports respondent's view that "the case" implies a specific adversary proceeding rather than an indefinite ongoing investigation. Cf. Rumsfeld v. Padilla , 542 U.S. 426, 434 (2004) (use of definite article "the person" in 28 U.S.C. 2241's provision regarding a habeas custodian signifies that there is usually only one proper custodian, and not several different ones). Because there was not and is not any case against Epstein in the Southern District of Florida, petitioners have no rights under § 377I (a)(5) to consult with the attorney for the Government. The United States Attorney's Office was under no obligation to consult with petitioners prior to concluding its Non-Prosecution Agreement with Epstein. For the same reason, petitioners' claim under § 3771(a)(2) also fails. There has been no "public court proceeding" against Epstein in the U.S. District Court, Southern District of Florida, since no criminal case has been filed against him in the federal court. Consequently, there has been nothing for which the U.S. Attorney's Office was required to give notice to petitioners. A different provision in the CVRA, 18 U.S.C. § 3771(b), also supports the Government's interpretation of § 3771(a)(5). Section 3771(b)(1) provides as follows: In 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). Before making a determination described in subsection (a)(3), the court shall make every effort to permit the fullest attendance possible by the victim and shall consider reasonable alternatives to the exclusion of the victim from the criminal proceeding. The reasons for any decision denying relief under this chapter shall be clearly stated on the record. There is no "court proceeding" in this case because no federal criminal charges have been lodged against Jeffrey Epstein. Section 3771(b)(I) envisions that a district court presiding over a criminal trial will be responsible for ensuring that a crime victim will be afforded rights granted in § 3771(a). Section 3771(a)(3), which is expressly referenced in § 3771(b)(1), provides that a crime victim has 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. This provision contemplates that, in the event a defendant invokes the rule of sequestration in Fed.R.Evid. 615, the court must consider the crime victim's rights under § 3771(a)(3), and can only exclude the victim from the proceeding if the court finds there is clear and convincing evidence that the victim's testimony would be materially altered if the victim was allowed to hear other testimony at the proceeding. By providing a difficult EFTA00208519 evidentiary standard which must be met before a victim's right to be present in the court proceeding can be denied, Congress was purposefully limiting a court's discretion in sequestering trial witnesses, when the witness is a crime victim. In the instant case, there is no "court proceeding" since no federal criminal charges have been brought against Epstein. Therefore, § 3771(b)(1) is inapplicable. There is no role for this Court to fulfill under § 3771(b)(1). Fa A. The Venue Provision, Section 3771(d)(3), Does Not Support Petitioners' Argument That CVRA Rights Attach Prior to Formal Charges Being Filed Petitioners also attempt to buttress their argument by claiming that section 3771(d)((3), which sets forth the venue where a victim can seek relief, supports their view that the rights in section 3771(a) attach before any criminal charges are filed. DE 48 at 26. Section 3771(d)(3) provides, in pertinent part, 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 the district in which the crime occurred." As the respondent explained at the July 11, 2008 hearing, section 3771(d)(3) is a venue provision, which provides for where a motion under that section shall be filed. Congress' provision of a location where a motion can be filed does not lead to the conclusion that Congress also intended rights in section 3771(a) to exist even if no federal criminal charges are ever filed. The venue language in the CVRA that states that rights "shall be asserted . . . if no prosecution is underway , in the district court in the district in which the crime occurred," 18 U.S.C. § 3771(c)(3). Petitioners maintain that this provision establishes that the CVRA contemplated a case such as this where no charges were ever filed. To the contrary, the Separation of Powers doctrine and the full context of the CVRA counsel otherwise. F9 Here, Petitioners have not articulated what they are seeking. As set forth above in the Procedural History, originally, Petitioners sought to have the NPA set aside. Fto (DE15 at 12, 21.) They later explicitly denied that they were seeking that remedy. (DE27 at 4.) The Court asked Petitioners to review the NPA and either dismiss their case or advise the Court promptly what remedy they were seeking. ( Id.) Thereafter, Petitioners asked only to have the NPA unsealed and made public. (DE28.) The Court denied that motion. (DE36.) Now, more than two years later, they have asked the Court only to make a finding of a violation of the CVRA, asking that the issue of remedy be saved for a later date. The fundamental rationale of the separation of powers doctrine is particularly compelling in the context of this case, the handling of criminal prosecutions. "The Attorney General and United States Attorneys retain `broad discretion' to enforce the Nation's criminal laws. They have this latitude because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to `take Care that the EFTA00208520 Laws be faithfully executed.'" United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Wayte v. United States , 470 U.S. 598, 607 (1985); quoting U.S. Const., Art. II § 3; citing 28 U.S.C. §§ 516, 547). This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute. Wayte v. United States , 470 U.S.598, 607-08 (1985). See also Town of Newton v. Rumety,, 480 U.S. 386, 396 (1987) ("[C]ourts normally must defer to prosecutorial decisions as to whom to prosecute. The reasons for judicial deference are well known. Prosecutorial charging decisions are rarely simple. In addition to assessing the strength and importance of a case, prosecutors also must consider other tangible and intangible factors, such as government enforcement priorities. Finally, they also must decide how best to allocate the scarce resources of a criminal justice system that simply cannot accommodate the litigation of every serious criminal charge."). In the Epstein case, the U.S. Attorney's Office also had to balance its federal prosecutorial discretion with its relationship with the Palm Beach County State Attorney's Office in light of the pre-existing state investigation. In addition to the authorities cited above, the Supreme Court's decision in Heckler v. Chaney , 470 U.S. 821 (1985), further supports the interpretation that the CVRA does not provide for judicial intervention in a case where no criminal charges were ever filed against a defendant. In Chaney , the Supreme Court held that an agency's decision to refuse enforcement of one of its regulations is unsuitable for judicial review, despite the existence of the Administrative Procedures Act ("APA"), like, in this case, the Justice Department's regulations on victim consultations. M See id at 831; see also American Disabledfor Attendant Programs Today v. United States Dept of Housing and Urban Dev. , 170 F.3d 381, 384 (3d Cir. 1999 (citing Chaney) ("Agency actions are typically presumed to be reviewable under the APA. Importantly however, the Supreme Court has established a presumption against judicial review of agency decisions that involve whether to undertake investigative or enforcement actions."). Thus, as explained in Chaney , the existence of the APA and an agency's refusal to act, without more, will not create a "case or controversy." Chaney explained that, the agency's refusal is "only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Chaney at 833. EFTA00208521  The CVRA reiterates the presumption created by the language contained in 3771(d)(6) — that there is no "cause of action" — and in 377 l(f)(2)(D) — that there shall be no "judicial review of the final decision of the Attorney General" of any complaints of violations of the CVRA. Block v. Securities and Exchange Comm 'n , 50 F.3d 1078 (D.C. Cir. 1995), is instructive. In Block , petitioners filed a petition asking the Court to find that the SEC had failed to fulfill its obligation to hold a hearing and determine whether petitioners were "interested persons" under the Investment Advisers Act. Id. at 1080. The SEC responded that its decision not to act upon petitioners' application was a decision not to enforce that is committed to the agency's discretion and, therefore, was not subject to judicial review under Chaney . Block at 1081. The D.C. Circuit found that the Chaney rule applied: The Supreme Court in Chaney provided no formula by which to determine whether agency decisions of a particular type are "decisions to refuse enforcement." The Court clearly included within that set, however, not only an agency's determination not to proceed against a recognized violation, but also its antecedent judgment upon the question "whether a violation has occurred." Block , 50 F.3d at 1081 (quoting Chaney , 470 U.S. at 831). That type of inquiry is exactly the one requested by Jane Does #1 and #2 - did the U.S. Attorney's Office for the Southern District of Florida violate the CVRA. Here, Petitioners' request should be examined with even greater caution than the average agency decision because it involves a decision regarding a criminal prosecution. At least one district court has also recognized that finding a CVRA violation, especially of the right to be treated with dignity and respect — the right that is the primary focus of Petitioners' Motion for Finding of Violations — does not always provide a remedy, even when a federal criminal case exists. In United States v. Rubin , 558 F. Supp. 2d 411 (E.D.N.Y. 2008), the district court treated the victims with a fair amount of skepticism, and noted that the government believed that the victims were trying to use the CVRA as a mechanism to "undo Rubin's guilty plea in exchange for a favorable settlement of their ongoing civil suit in California state court. Movants take vigorous exception to any [such] suggestion ..." although the Court later noted that the victims were attempting to use the CVRA to obtain discovery from the defendant. Id. at 416, 425. With respect to certain CVRA rights, the Rubin court noted the lack of a remedy: The CVRA also lists among the rights secured to a victim the right to "be treated with fairness and with respect for the victim's dignity and privacy." 18 U.S.C. § 3771(a)(8). As Magistrate Judge Orenstein observed in Turner : "Neither the text of the statute nor its legislative history provides guidance as to what specific procedures or substantive relief, if any, Congress intended this provision to require or prohibit." [ United States v. Turner , 367 F. Supp. 2d 319, 335 (E.D.N.Y 2005).] While this provision must be read liberally as giving courts and the government the mission to do all that they can to vindicate a victim's legitimate requests for fairness, respect and dignity, the Court doubts, strongly, that the authors of the statute succeeded in doing more. It is hard to comprehend, in any case, how a court presiding over the prosecution of a defendant EFTA00208522  could engage in sidebar dispute resolution between a victim and the government regarding the strategic decisions of the government about the very prosecution the Court is to try impartially. . . . the Court refuses to adopt an interpretation of (a)(8) that prohibits the government from raising legitimate arguments in support of its opposition to a motion simply because the arguments may hurt a victim's feelings or reputation. More pointedly, such a dispute is precisely the kind of dispute a court should not involve itself in since it cannot do so without potentially compromising its ability to be impartial to the government and defendant, the only true parties to the trial of the indictment. Id. at 428. Cf. Cole v. Federal Bureau of Investigation , 719 F. Supp. 2d 1229, 1245 n.4 (D. Mont. 2010) (Purported crime victims brought class action claim against FBI and U.S. Attorney's Office for repeated failures to investigate and prosecute crimes involved Native American victims asserting, inter alia , violations of the CVRA. District court dismissed most claims, including CVRA claims, noting that the alleged CVRA injury "does not meet the requirements for an injury-in-fact for standing purposes. The lost opportunities to receive benefits under the crime victims statutes are too speculative to give rise to an Article III injury.") B. Construing the CVRA to Apply Before a Decision to Prosecute Federally Is Made Will Improperly Impair the Decision-Making Authority of the Executive Branch, in Contravention of the Legislative History of the CVRA The ramifications of the position espoused by the Petitioners in this case are significant. And those ramifications were understood by Congress. Thus, Congress maintained separate legislation aimed at rights governing pre-charging protections, see 42 U.S.C. § 10607, and legislation aimed at rights governing post- charging protections, that is, the CVRA. Senator Kyl noted that the right to confer with the "attorney for the Government in the case" only applied post charging: This right to confer does not give the crime victims 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 . 150 Cong.Rec. S4260, S4268 (daily ed. Apr. 22, 2004)(statement of Sen. Kyl)(emphasis added). In addition to issues of prosecutorial discretion described above, additional considerations prior to filing criminal charges include grand jury secrecy, see Fed. R. Crim. P. 6(e), and due process rights of persons under investigation. Petitioners' argument fails to take into account the admonition of Congress in section 3771(d)(6) that Inlothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." It is well-settled that "the decision of whether or not to prosecute ... is a decision firmly committed by the [C]onstitution to the executive branch of the government." United States v. Renfro , 620 F.2d 569, 574 (6th Cir. 1980). Further, "intervention by the court in the internal affairs of the Justice Department would clearly constitute a violation of the Separation of Powers doctrine." Id. In Dresser EFTA00208523 Industries, Inc. v. United States , 596 F.2d 1231, 1237 (5 ih Cir. 1979), the court of appeals observed that "[t]he decision to prosecute is largely unreviewable by the courts." citing United States v. Cox , 342 F.2d 167 (5 th Cir. 1965). The logical corollary to this proposition is that, the decision not to prosecute, or to dispose of a matter by entering into a non-prosecution agreement, is also largely unreviewable by the courts. An interpretation that the rights enumerated in section 3771(a) do not attach until formal charges are filed in a district court comports with the notion of giving broad deference to the prosecutorial discretion of the Attorney General. Under petitioners' intepretation, a case is commenced when a law enforcement agency begins to investigate to determine if a crime was committed. Under their view of section 3771(a)(5), a putative victim could file a motion with the district court, in the district where the crime occurred, to complain that a law enforcement agency declined to refer a case for prosecution to the U.S. Attorney's Office, and the law enforcement agency did not afford him or her "the reasonable right to confer with the attorney for the Government in the case," prior to making its decision not to refer the case. It is only a small step to the next phase, a motion to challenge the U.S. Attorney's Office's decision to decline prosecution, without having conferred with the putative victim prior to making the decision. Even if the U.S. Attorney's Office decided to seek a grand jury indictment, under petitioners' interpretation, a dissatisfied victim could file a motion challenging the Attorney General's choice of the charges to bring, or who it chose to charge, by arguing the U.S. Attorney's Office did not confer with the victim prior to drafting the indictment. Of course, such judicial scrutiny is not available since "[d]ecisions on whether to charge, who to charge, and what to charge, are all in the prosecutor's discretion." United States v. BP Products North America, Inc 2008 WL 501321 at *11, citing United States v. Armstrong , 517 U.S. 456, 464 (1996)( quoting Bordenkircher v. Hayes , 434 U.S. 357, 364 (1978)). Allowing claims like Petitioners' to proceed would open the inner workings of that prosecutorial discretion and the grand jury to judicial scrutiny — exactly the outcome that the CVRA states is disallowed. For example, in In re Petersen , 2010 WL 5108692 (N.D. Ind. Dec. 8, 2010), an individual and a corporation filed an emergency petition for enforcement of the CVRA, "seeking an order compelling the Department of Justice and United States Attorney General Eric Holder, Jr. to comply with the CVRA and to accord them various rights conferred upon crime victims under the Act, 18 U.S.C. § 3771(a)," in a case where no charges were ever filed against the putative defendants. Id. at *1. The petitioners claimed that they were victims of various federal crimes related to fraud, securities crimes, and money laundering, among others, and that the U.S. Attorney's Office for the Northern District of Indiana had "refused to confer with them, denied EFTA00208524 them their right to full and timely restitution, ... and demonstrated `a total indifference and lack of respect to the victims of real estate and mortgage fraud crimes,' in violation of 18 U.S.C. § 3771(a)(5)-(8).'" Id. Citing the CVRA's express prohibition on impairing prosecutorial discretion, id. at *2, and noting that the court had "no authority under the CVRA to compel the Attorney General to promulgate regulations, `meaningful' or otherwise," id. at *3, the Petersen court dismissed the CVRA petition. Simply, "the U.S. Attorney didn't have an obligation under the CVRA to confer with the petitioners until after a charge was filed and a case opened, and the decision not to bring charges against the alleged perpetrators was a matter of prosecutorial discretion, not subject to review under the CVRA." Id. at *2. Petersen previews the reasons for limiting CVRA actions to cases where criminal charges have already been filed. Failure to do so could divert limited prosecutorial and judicial resources to dealing with numerous frivolous claims. For example, any assault that occurs in a federal prison could be charged as a federal offense. F13 The Bureau of Prisons also has its own administrative remedies for resolving prisoner disputes. Construing the CVRA in the way that Petitioners urge would require AUSAs to meet and confer with each and every prisoner who alleged that he or she was the victim of an assault from another prisoner. If the U.S. Attorney's Office determined that there was insufficient evidence to prosecute, or exercised its discretion to decline prosecution in favor of administrative remedies, the prisoner could, according to Petitioners, file a CVRA claim, and then a petition for mandamus that would have to be heard within 72 hours. At least one prisoner has filed exactly this type of suit, not once, but twice. See Seamy v. NFN Paletz , 2007 WL 1875802 (D.S.C. June 27, 2007) (prisoner who alleged he was victim of assault filed suit under CVRA attempting to force U.S. Attorney's Office, FBI, and BOP to prosecute alleged perpetrator); Seamy v. NFN Skinner , 2006 WL 1677177 (D.S.C. June 16, 2006) (same). These fears are not imagined — several individuals have tried to use the CVRA to force the United States — via the federal courts — to act in ways never contemplated by the CVRA's drafters. For example, a prisoner filed a writ of mandamus asking the Third Circuit Court of Appeals to find that the United States had violated his victims' rights under the CVRA by failing to file a Rule 35 motion to reduce his sentence after he provided information against another prisoner who had committed theft from the prison. See In re Dawalibi , 338 Fed. Appx. 112, 2009 WL 2186517 (3d Cir. 2009). The other prisoner had assaulted Dawalibi when he learned that Dawalibi had provided information against him, and Dawalibi asserted that the failure to award a Rule 35(b) sentence reduction violated his right under the CVRA to be treated with fairness. See id. , 338 Fed. Appx. at 113-14. EFTA00208525  In Sieverding v. United States Dept of Justice , 693 F. Supp. 2d 93 (D.D.C. 2010), the district court discussed a series of claims brought by the Sieverdings, a husband and wife so well known to the court for their "abusive litigation practices" that the district court "imposed filing restrictions" on them and "arrested and jailed [Mrs. Sieverding] for civil contempt several times between 2005 and 2007." Id. at 99 (citations omitted). Thereafter, the Sieverdings alleged dozens of Privacy Act and other violations stemming from these arrests and incarcerations. The allegations by Mrs. Sieverding included that: DOJ was required to meet with her and investigate (if not prosecute) her various allegations of criminal behavior [by FBI agents and Deputy U.S. Marshals in connection with the court-ordered arrests]. She argues that the Justice for All Act of 2004 "gives her the right to discuss her allegation of criminal acts and DOJ's decisions to prosecute or not prosecute with a U.S. Attorney." ... Ms. Sieverding also alleges that the Justice for All Act and the Mandatory Victim's Restitution Act require DOJ to "subpoena the parties whom she alleges committed federal crimes that injured her." Similarly she contends that DOJ had "a specific statutory mandate to investigate alleged crimes and they chose not to." Id. at 110. Just as in Petersen , the Sieverding court dismissed these claims, relying on 18 U.S.C. § 3771(d)(6) ("Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction."). The Court should do the same in this case. C. Analysis of Whether an Individual is a Victim Entitled to Protections under § 3771(a) Is Based Upon the Criminal Charge Lodged By the United States Government in the United States District Court Federal court decisions construing the CVRA have focused upon the charges formally lodged against an accused, in determining whether an individual was covered by the CVRA. In In Re Stewart , 552 F.3d 1285 (11 di Cir. 2008), the Eleventh Circuit observed, in the opening sentence of its opinion, that "[t]he Crime Victim Rights Act ("CVRA"), 18 U.S.C. § 3771, provides that victims of a federal crime may appear and be heard during some phases of the prosecution of the person charged with the crime ." Id. at 1285-86 (footnote omitted and emphasis added). In Stewart , the issue was whether individuals who had purchased houses from various real estate developers were victims under the CVRA, when the purchasers were required to pay a two percent mortgage origination fee, instead of the one percent fee which Coast Bank of Florida and American Mortgage Link, the mortgage origination firm, had agreed would be paid by a purchaser. The additional one percent was pocketed by defendant Phillip Coon, an Executive Vice-President of Coast Bank, and defendant John Miller, president of American Mortgage Link. Coon and Miller were charged in a one-count Information on October 15, 2008, with conspiracy to deprive the bank of honest services in violation of the wire fraud statute. Id. at 1287. On November 5, 2008, Coon and Miller entered into a plea agreement with the government. On the same day, Coon and Miller appeared before a Magistrate Judge to tender their pleas of guilty. The petitioners appeared and asked to be EFTA00208526 heard. Id. The government objected, arguing that the petitioners were not victims of the offense charged in the information. The Magistrate Judge agreed and denied the petitioners the right to be heard. Id. On appeal, the Eleventh Circuit noted that, "[t]he question the petition presents is whether petitioners are victims of the criminal conduct as described in the information pending in the district court." Id. at 1288. Referencing the definition of victim in 18 U.S.C. § 3771(c), the Eleventh Circuit noted that, to determine a crime victim, first, the court identifies the behavior constituting "commission of a federal offense," and second, identifies the direct and proximate effects of that behavior on parties other than the United States. Id. If the criminal behavior causes a party direct and proximate harmful effects, the party is a victim under the CVRA. The Eleventh Circuit ultimately found that the petitioners had been harmed because they had to pay the extra one percent. In doing so, the appellate court examined the relevant criminal behavior which formed the basis for the criminal violation charged in the information. Id. at 1288-89. Similarly, in United States v. Turner , 367 F.Supp.2d 319 (E.D.N.Y. 2005), the district court analyzed the means by which a court would identify the victims in a criminal case, when applying the definition in § 3771(e). FI6 Noting the presumption of innocence that a defendant enjoys, the court observed that it could presume no person would meet the definition of victim unless and until the defendant was proved guilty beyond a reasonable doubt. Id. at 326. This approach was rejected because it would produce an absurd result that the court assumed Congress did not intend. Next, the court found that, while the CVRA does not include an express provision preserving the presumption of a defendant's innocence, such a reasonable limitation must be inferred as a matter of due process and to avoid an interpretation that would render the statute unconstitutional. Id. at 326(citations omitted). The district court then concluded: Accordingly, I interpret the definition in § 3771(e) to include any person who would be considered a "crime victim" if the government were to establish the truth of the factual allegations in its charging instrument. Id. (emphasis added). In In Re McNulty , 597 F.3d 344 (6th Cir. 2010), the petitioner claimed he was a victim under the CVRA in a pros