DOJ-OGR-00003459.jpg

Case 1:20-cr-00330-PAE Document 204-3 Filed 04/16/21 Page 283 of 348 398 The “prosecution stage” 399 and consider victims’ views about, prospective plea negotiations. began when charges were filed and continued through all post-sentencing legal proceedings. At the time the parties signed the NPA in September 2007, few courts had addressed victim standing under the CVRA. Notably, district courts in New York and South Carolina had ruled that standing attached only upon the filing of federal charges.*°’ Two cases relied upon by the court in its February 2019 opinion—Dean and its underlying district court opinion, BP Products—were decided after the NPA was signed. The CVRA litigation and proposed federal legislation—both pending as of the date of this Report—show that the interpretation of victim standing under the CVRA continues to be a matter of debate.**! In a November 21, 2019 letter to Attorney General William Barr, a Congressional Representative stated that she had recently introduced legislation specifically to “[c]larify that victims of federal crimes have the right to confer with the Government and be informed about key pre-charging developments in a case, such as . . . non-prosecution agreements.”*°? The CVRA litigation arising from the Epstein case shows the lack of clarity regarding when CVRA rights apply: the district court concluded that CVRA rights applied pre-charge, but a sharply divided panel of the Eleventh Circuit Court of Appeals came to a contrary conclusion, a decision that has now been vacated while the entire court hears the case en banc. Because the Supreme Court had not addressed the issue of when CVRA rights apply, the lower courts had reached divergent conclusions, and the Department had concluded that CVRA rights did not apply pre-charge, OPR concludes that the subjects’ failure to consult with victims before signing the NPA did not constitute professional misconduct because at that time, the CVRA did not clearly and unambiguously require prosecutors to consult with victims before the filing of federal criminal charges.* 398 2005 Guidelines, Art. IV, J B.2.c.(3). Under the 2005 Guidelines, the term “should” means that “the employee is expected to take the action or provide the service described unless there is an appropriate, articulable reason not to do so.” Jd., Art. II, §C. 299 Id, Art. IV, 9 B.1. 00 Searcy v. Paletz, 2007 WL 1875802, at *5 (D.S.C. June 27, 2007) (an inmate is not considered a crime victim for purposes of the CVRA until the government has filed criminal charges); United States v. Turner, 367 F. Supp. 2d 319, 326-27 (E.D.N.Y. 2005) (victims are not entitled to CVRA rights until the government has filed charges, but courts have discretion to take a more inclusive approach); and United States v. Guevara-Toloso, 2005 WL 1210982, at *2 (E.D.N.Y. May 23, 2005) (order sua sponte) (in case involving a federal charge of illegal entry after a felony conviction, the court determined that victims of the predicate state conviction were not victims under the CVRA). #01 See Wild, 955 F.3d at 1220; Courtney Wild Crime Victims’ Rights Reform Act of 2019, H.R. 4729, 116th Cong. (2019). 402 165 Cong. Rec. E1495-01 (2019). 403 Violations of an unambiguous obligation concerning victims’ rights could result in a violation of the rules of professional responsibility. For example, in Attorney Griev. Comm’n of Md. v. Smith, 109 A.3d 1184 (Md. 2015), the Court of Appeals of Maryland concluded that a prosecutor’s failure to provide any notice to the minor victim’s foster family about the resolution of a sex abuse case during the ten months the prosecutor was responsible for the matter was a “consistent failure” amounting to “gross negligence in the discharge of the prosecutorial function” that deprived the victim of his rights under the Maryland Constitution. The court found violations of Maryland Rules of Professional 257 DOJ-OGR-00003459