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Case 1:20-cr-00330-PAE Document 293-1 Filed 05/25/21 Page 272 of 349 victims deserve to be treated with fairness and respect, and to be conferred with on the criminal case, not just because the CVRA requires it, but because it’s the right thing to do.” During oral argument on January 16, 2020, the government apologized for the USAO’s treatment of Wild: The issue is whether or not the office was fully transparent with Ms. Wild about what it is that was going on with respect to the NPA, and they made a mistake in causing her to believe that the case was ongoing when in fact the NPA had been signed. The government should have communicated in a straightforward and transparent way with Ms. Wild, and for that, we are genuinely sorry.*?? On April 14, 2020, a divided panel of the Court of Appeals for the Eleventh Circuit denied Wild’s petition for a writ of mandamus, concluding that “the CVRA does not apply before the commencement of criminal proceedings—and thus, on the facts of this case, does not provide the petitioner here with any judicially enforceable rights.”*"* The court conducted a thorough analysis of the language of the statute, the legislative history, and previous court decisions. The court distinguished Jn re Dean as “dictum” consisting of a “three-sentence discussion . .. devoid of any analysis of the CVRA’s text, history, or structural underpinnings.” The court noted that its interpretation of the CVRA was consistent with the Department’s 2010 OLC opinion concerning victim standing under the CVRA and the Department’s efforts in “implementing regulations.” Finally, the court raised separation of powers concerns with Wild’s (and the dissenting judge’s) interpretation of victim standing under the CVRA, noting that such an interpretation would interfere with prosecutorial discretion. Nevertheless, the court was highly critical of the government’s conduct in the underlying case, stating that the government “[s]eemingly . . . defer[red] to Epstein’s lawyers” regarding information it provided victims about the NPA and that its “efforts seem to have graduated from passive nondisclosure to (or at least close to) active misrepresentation.” The court concluded that although it “seems obvious” that the government “should have consulted with petitioner (and other victims) before negotiating and executing Epstein’s NPA,” the court could not conclude that the government was obligated to do so. In addition, the dissenting judge filed a lengthy and strongly worded opinion asserting that the majority’s statutory interpretation was “contorted” because the “plain and unambiguous text of the CVRA does not include [a] post-indictment temporal restriction.” On May 5, 2020, Wild filed a petition for rehearing en banc. On August 7, 2020, the court granted the petition for rehearing en banc and vacated the panel’s opinion; as of the date of this Report, a briefing schedule has been issued and oral argument is set for December 3, 2020. S28 Audio recording of Oral Argument, Wild, No. 19-13843 (Jan. 16, 2020). 394 Inre Wild, 955 F.3d 1196, 1220 (11th Cir. 2020). 245 DOJ-OGR-00004569