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Case 1:20-cr-00330-PAE Document 204-3 Filed 04/16/21 Page 284 of 348 In Wild, the Eleventh Circuit panel compared the language of the CVRA to the language of the VRRA, noting that the VRRA “clearly extends victim-notice rights into the pre-charge phase” and opining that the government “may well have violated” the VRRA with regards to its investigation of Epstein. As a predecessor to the CVRA, the VRRA afforded victims various rights and services; however, it provided no mechanism for a victim to assert such rights in federal court or by administrative complaint. Like the CVRA, the rights portion of the VRRA established the victims’ right to be treated with fairness and respect and the right to confer with an attorney for the government. However, the rights portion of the VRRA was repealed upon passage of the CVRA and was not in effect at the time of the Epstein investigation. The portion of the VRRA directing federal law enforcement agencies to provide certain victim services such as counseling and medical care referrals remained in effect following passage of the CVRA. Furthermore, two of the VRRA requirements—one requiring a responsible official to “inform a victim of any restitution or other relief to which the victim may be entitled,” and another requiring that a responsible official “shall provide a victim the earliest possible notice of the status of the investigation of the crime, to the extent it is appropriate to inform the victim and to the extent that it will not interfere with the investigation”’—may have applied to the Epstein investigation. However, the VRRA did not create a clear and unambiguous obligation on the part of the subject attorneys, as the 2005 Guidelines assigned the duty of enforcing the two requirements to the investigative agency rather than to prosecutors. Moreover, the VRRA did not require notice to victims before the NPA was signed because, at that point, the case remained “under investigation,” and the victims did not become entitled to pursue monetary damages under the NPA until Epstein entered his guilty pleas in June 2008. Once Epstein did so, and the victims identified by the USAO became entitled to pursue the § 2255 remedy, the USAO furnished the victims with appropriate notification. B. OPR Did Not Find Evidence Establishing That the Lack of Consultation Was Intended to Silence Victims During her OPR interviews, Villafafia recalled more than one discussion in which she raised with her supervisors the issue of consulting with the victims before the NPA was signed on September 24, 2007. Acosta, Sloman, Menchel, and Lourie, however, had no recollection of discussions about consulting victims before the NPA was signed, and Menchel disputed Villafafia’s assertions. OPR found only one written reference before that date, explicitly raising the issue of consultation. Given the absence of contemporaneous records, OPR was unable to conclusively determine whether the lack of consultation stemmed from an affirmative decision made by one or more of the subjects or whether the subjects discussed consulting the victims about the NPA before it was signed. Villafafia’s recollection suggests that Acosta, Menchel, and Sloman may have been concerned with maintaining the confidentiality of plea negotiations and did not believe that the government was obligated to consult with victims about such negotiations. OPR Conduct 1.3, lack of diligence, and 8.4(d), conduct prejudicial to the administration of justice. The holding in Smith was based on Article 47 of the Maryland Constitution and various specific statutes affording victims the right, among others, to receive various notices and an opportunity to be heard concerning “a case originating by indictment or information filed in a circuit court.” However, both the underlying statutory provisions and, significantly, the facts are substantially different from the Epstein investigation. In Smith, the criminal defendant had been arrested and charged before entering a plea. 258 DOJ-OGR-00003460