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Epstein Victim’s Challenge to Non-Prosecution Agreement Tossed

April 16, 2021, 2:53 PM

A victim of Jeffrey Epstein’s sex trafficking operation was turned away by the en banc Eleventh Circuit when it denied her petition under the Crime Victims’ Rights Act challenging the non-prosecution agreement the government negotiated with him in secret.

Although the court had the “profoundest sympathy” for Courtney Wild, the opinion by Judge Kevin C. Newsom said the statute was inapplicable because no federal charges were filed against Epstein when she filed her suit.

Epstein abused at least 30 young girls, including Wild, some of whom weren’t even 15 years old, the court said.

After an FBI investigation, federal prosecutors prepared an indictment but it was never filed. Instead, Epstein’s lawyers and the prosecutors entered into the secret NPA, allowing him to plead to state charges, the court said.

The CVRA says crime victims have a right to confer with prosecutors in a case and must be treated with fairness and dignity. It also allows victims to seek administrative remedies via a writ of mandamus when its terms are violated, the U.S. Court of Appeals for the Eleventh Circuit said.

But the statute only applies to preexisting proceedings. Because no federal charges had been filed against Epstein when Wild filed her suit, there were no proceedings to which the statutory rights attached, the court said.

Congress didn’t clearly create a private right of action in the CVRA that allows a crime victim to “initiate a freestanding lawsuit to enforce her rights before the formal commencement of any criminal proceeding,” the court said.

Chief Judge William H. Pryor Jr. and Judges Charles R. Wilson, Barbara Lagoa, Andrew L. Brasher, and Gerald Bard Tjoflat joined the opinion in full. Judge Robert J. Luck joined in part.

Dissenting Judge Elizabeth L. Branch, joined by Judges Beverly B. Martin, Jill A. Pryor, and Frank M. Hull, said the CVRA grants crime victims two “pre-charge rights"—the rights to confer with prosecutors and to be treated with fairness—and creates a right to judicial enforcement “if no prosecution is underway” by filing a motion for relief in district court.

Hull filed a separate dissent further assailing the majority opinion.

Chief Judge Pryor’s concurrence, joined by Newsom, Lagoa, and Tjoflat, criticized the dissents for wanting to issue an advisory opinion, reading the individual subsections of the CVRA in isolation, and not heeding the presumption against implied rights.

Newsom wrote a separate concurrence to once again express his sincere regret for leaving Wild “largely emptyhanded.”

Tjoflat, joined by Chief Judge Pryor, Wilson, Newsom, and Lagoa, also wrote a concurrence to “elaborate on the untoward effects a pre-charge CVRA model would have on the fairness of our courts and on the separation of powers.” For example, by litigating criminal law issues in a civil case, the dissent’s model puts at risk the rights of the accused and impinges on prosecutorial discretion, he said.

Paul Cassell of Salt Lake City and EdwardsPottinger LLC represented Wild.

The case is In re Wild, 2021 BL 137901, 11th Cir. en banc, No. 19-13843, 4/15/21.

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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