EFTA00229916

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Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 11 of 54 
Incrimination Clause) (citing Blyew v. United States, 80 U.S. (13 Wall.) 581, 595 (1871), 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. Runtsfeld 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 § 3771(aX5) 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(aX5). 
Section 3771(6)(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 (aX3), 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. 
11 
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Case 9:08-cv-80736-KAM Document 62 
Entered on FLSD Docket 04/08/2011 Page 12 of 54 
There is no "court proceeding" in this case because no federal criminal charges have been 
lodged against Jeffrey Epstein. 
Section 3771(b)(1) 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(bX1), 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.Eivid. 615, the court must consider the crime victim's rights under § 3771(aX3), and can 
only exclude the victim from the proceeding if the court fords 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 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(bX1) is inapplicable. There is no role for 
this Court to fulfill under § 3771(bX1).' 
sAs discussed, infra, this interpretation is buttressed by the Federal Rules Committee's 
decision to incorporate the CVRA into the Federal Rules of Criminal Procedure at Fed. R. Crim. 
P. 60. 
12 
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Case 9:08-cv-80736-1(Atvl Document 62 Entered on FLSD Docket 04/08/2011 Page 13 of 54 
A. 
The Venue Provision, Section 3771(4)(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(dX(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 "Whe 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(4)(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 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(0)(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.* Here, 
By making this suggestion, the government is not suggesting that this language is 
superfluous. Rather the period referred to in 18 U.S.C. § 3771(d)(3) is the time between arrest 
and indictment. As stated by the Supreme Court, for purposes of the Sixth Amendment right to 
counsel, "criminal prosecution" does not commence with the filing of a complaint and issuance 
of an arrest warrant, but only upon the return of an indictment. Kirby v. Illinois, 406 U.S. 682, 
688-690 (1972). See also United States v. Pace, 833 FM 1307, 1312 (9th Cir. 1987) (filing of 
complaint and issuance of arrest warrant do not commence criminal prosecution for Sixth 
Amendment purposes, but rather, based on Fed. R. Crim. P. 7. "prosecution commenced when 
the indictment was handed down") (emphasis added). 
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Case 9:08-cv-80736-KAM Document 62 
Entered on FLSD Docket 04/08/2011 Page 14 of 54 
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.10 (DEI5 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. (hl) Thereafter, Petitioners asked only to have the NPA unsealed and made 
The filing of a federal criminal complaint does not commence a formal 
prosecution. Rather, the main reason a law enforcement officer files such a 
complaint is to establish probable cause for an arrest warrant. See Fed. R. Crim. P. 
3, 4(a); United States v. Moore, 122 F.3d 1154, 1156 (8th Cir.1997). The criminal 
process is still in the investigative stage, and "the adverse positions of government 
and defendant" have yet to solidify. The filing of the federal complaint, therefore, 
can no more be characterized as "the initiation of adversary judicial proceedings 
against the defendant," than can the filing of an affidavit in support of a search 
warrant. 
United States v. Alvarado, 440 F.3d 191, 200 (4th Cir. 2006) (quoting United States v. Gouveia, 
467 U.S. 180, 187, 189) (emphasis added). See also United States v. Langley, 848 F.2d 152 
(11th Cir. 1988) (formal criminal prosecution does not commence upon issuance of arrest 
warrant). 
During the period between the filing of a Criminal Complaint or a defendant's arrest 
(whichever occurs first), and the filing of an Indictment or an Information, several important 
events will occur, including his initial appearance and bond hearing. There also may be pre-
indictment plea negotiations. Also, if the defendant is arrested outside of the district where he 
was charged, i.e., outside the district where the criminal activity occurred, the defendant may ask 
for permission to plead guilty in the arresting district — away from where the victims are located. 
Section 3771(d)(3) makes certain that the victims can be heard in their "home" district to object 
to the Rule 20 procedure for transferring the case so that they can more easily exercise their right 
to appear at court proceedings. 
Importantly, when incorporated into the Federal Rules of Criminal Procedure, this 
language became: "Where Rights May Be Asserted. A victim's rights described in these rules 
must be asserted in the district where a defendant is being prosecuted for the crime." Fed. R. 
Crim. P. 60(bX4) (emphasis added). 
mAs explained below, to the extent that they are still asserting the right to that relief, they 
are not entitled to it. 
14 
EFTA00230079

i 
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ev."...Vt• 
Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 15 of 54 
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 Laws be faithfully executed.'" 
United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting Wayte v. Untied 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 &AAfence 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. Rumery, 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. 
15 
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f " , "":57 • 
Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 16 of 54 
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." See id at 831; see also American Disabled for Attendant Programs Today v. 
United States Dep't of Housing and Urban Dev., 170 F.3d 381, 384 (3d Cir. 1999 (citing 
"The reasons are identical to those that disfavor judicial intervention into prosecutorial 
discretion: 
First, an agency decision not to enforce often involves a complicated balancing of 
a number of factors which are peculiarly within its expertise. Thus, the agency 
must not only acsecs whether a violation had occurred, but whether agency 
resources are best spent on this violation or another, whether the agency is likely 
to succeed if it acts, whether the particular enforcement action requested best fits 
the agency's overall policies, and, indeed, whether the agency has enough 
resources to undertake the action at all. An agency generally cannot act against 
each technical violation of the statute it is charged with enforcing. The agency is 
far better equipped than the courts to deal with the many variable involved in the 
proper ordering of its priorities. 
M at 831-32 
16 
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Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket O4/08/2011 Page 17 of 54 
Chaney) ("Agency actions are typically presumed to be reviewable under the APA.12 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. 
The CVRA reiterates the presumption created by the language contained in 3771(dX6) — 
that there is no "cause of action" — and in 3771(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 CVR.A. 
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." 
'2Of course, Petitioners have not invoked the APA as a basis for jurisdiction. 
17 
EFTA00230082

Case 9:08-cv-80736-KAM Document 62 Entered on FLED Docket 04/08/2011 Page 18 of 54 
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 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 
18 
EFTA00230083

Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 19 of 54 
try impartially.. . . the Court refuses to adopt an interpretation of (aX8) 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 
19 
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Case 9:08-cv-80736-KAM Document 62 
Entered on F LSD Docket 04/08/2011 Page 20 of 54 
to confer with the Government's attorney about proceedings after 
cha
g. 
150 Cong.Rec. S4260, S4268 (daily ed. Apr. 22, 2004)(statement of Sen. Ky1Xemphasis 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 In]othing 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 Industries, Inc. v. 
United States, 596 F.2d 1231, 1237 (5th Cir. 1979), the court of appeals observed that tilt 
decision to prosecute is largely unreviewable by the courts." citing United States v. Cox, 342 
F.2d 167 (5th 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 comport with the notion of giving broad deference to the 
prosecutorial discretion of the Attorney General. Under petitioners' interpretation, a case is 
commenced when a law enforcement agency begins to investigate to determine if a crime was 
20 
EFTA00230085

Case 9:08-cv-80736-KAM Document 62 
Entered on FLSD Docket 04/08/2011 Page 21 of 54 
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 
(1996Xquoting 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. lnd. 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 
21 
EFTA00230086

Case 9:08-cv-80736-KAM Document 62 
Entered on FLSD Docket 04/08/2011 Page 22 of 54 
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 
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." The Bureau of prisons also has its own 
administrative remedies for resolving prisoner disputes. Construing the CVRA in the way that 
"See 18 U.S.C. § 113 (assault within territorial jurisdiction of the United States); United 
States v. Anderson, 528 F.2d 590, 591 (5th Cir. 1976) (in prosecution for assault with intent to 
commit murder within territorial jurisdiction of United States, district court could properly take 
judicial notice of fact that FCI Tallahassee was within special territorial jurisdiction of United 
States). 
22 
EFTA00230087

,5tit;c7/.1.7/.7. 
Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 23 of 54 
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 Searcy v. NEN 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); Searcy 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' tights 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. 
"Pursuant to 18 U.S.C. § 3771(O(3), "(i]f the district court denies the relief sought, the 
movant may petition the court of appeals for a writ of mandamus... . The court of appeals shall 
take up and decide such application forthwith within 72 hours after the petition has been filed." 
23 
EFTA00230088

Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 24 of 54 
In Sieverding v. United States Deft opus:ice, 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 200415 "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." 
M at 110. Just as in Petersen, the Sieverding court dismissed these claims, relying on 18 U.S.C. 
§ 3771(dX6) ("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. 
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 fonnally 
lodged against an accused, in determining whether an individual was covered by the CVRA. In 
In Re Stewart, 552 F.3d 1285 (II' Cir. 2008), the Eleventh Circuit observed, in the opening 
15The Justice for AU Act included the CVRA and several other criminal laws. 
24 
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Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 25 of 54 
sentence of its opinion, that "[tjhe 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 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, "[title question the petition presents is whether 
petitioners are victims of the criminal conduct as described in the information pending in the 
district court." IS 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 
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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).16 
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. 
16 18 U.S.C. § 3771(e) defines "crime victim" as "a person directly and proximately 
harmed as a result of the commission of a Federal offense or an offense in the District of 
Columbia." 
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Id. (emphasis added). 
In In Re McNulty, 597 F.3d 344 (6` Cir. 2010), the petitioner claimed he was a victim 
under the CVRA in a prosecution of Arctic Glacier International, Inc., for participating in a 
conspiracy to suppress and eliminate competition by allocating packaged-ice customers in 
southeastern Michigan and the Detroit, Michigan, metropolitan area. McNulty had been an 
employee of Arctic Glacier, and was told of the conspiracy. Id. at 346-47. When he refused to 
participate in the conspiracy, he was fired by Arctic Glacier. 
On September 29, 2009, the United States government charged Arctic Glacier, in a sealed 
information, with violating 15 U.S.C. § 1. Id. at 347. Arctic Glacier and the government 
entered into a plea agreement on October 13, 2009, in which Arctic Glacier agreed to plead guilty 
to the charge; the parties agreed to recommend a fine of $9 million; and the government agreed 
not to seek restitution. Id. 
At the sentencing hearing held on February 22, 2010, the district court found that the 
victims in the case were the customers of Arctic Glacier, and that McNulty was an employee of 
the defendant, not a customer. Id. at 348. The court further found that there was no evidence 
McNulty was directly or proximately harmed by the conspiracy for which Arctic Glacier was 
convicted. Accordingly, the district court held McNulty was not a "victim of the offense 
charged in this case." Id. 
McNulty sought mandamus relief in the court of appeals under 18 U.S.C. § 3771(d)(3). 
Relying upon appellate court decisions from other circuits, including Stewart, the Sixth Circuit 
found that § 377I(e)'s definitional requirement that a victim be "directly and proximately 
harmed" encompassed the traditional "but for" and proximate cause analyses. Id. at 350, citing 
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In Re Rendon Galvis, 564 F.3d 170, 175 (2gd Cir. 2009). As applied to McNulty, the issue was 
whether he was directly and proximately harmed by criminal conduct in the course of the 
conspiracy or if the actions taken by defendants in the underlying case which allegedly harmed 
McNulty were merely ancillary to the conspiracy. The Sixth Circuit stated: 
In making this determination, we must (1) look to the offense of 
conviction, based solely on the facts reflected in the jury verdict or 
admitted by defendant; and then (2) determine, based on those 
facts, whether any person or persons were "directly and 
proximately harmed as a result of the commission of [that] Federal 
offense. Id. at 351, citing United States v. Ad. States Cast Iron 
Pipe Co., 612 F.Supp.2d 453, 536 (D.N.J. 2009). 
Again, in determining whether an individual qualified as a victim, the appellate court looked to 
the charging document, and the crime charged, to decide whether the individual had been directly 
and proximately harmed. In McNulty, the Sixth Circuit ultimately agreed with the district 
court's conclusion that McNulty was not a victim. 597 F.3d at 351-52. The appellate court 
found that the alleged harm to McNulty stemmed front his firing for refusing to participate in the 
conspiracy, and his "blackballing" from future employment with packaged-ice companies until 
he stopped working with the government in exposing the conspiracy. "If proven, these would 
indeed be halms to McNulty, but they are not criminal in nature, nor is there any evidence that 
they are normally associated with the crime of antitrust conspiracy." Id. at 352. 
Interestingly, the Sixth Circuit observed that McNulty's firing and subsequent 
blackballing in the packaged-ice industry may have supported a charge of obstruction of justice. 
Id. at 352 n.9. Nonetheless, the court found this to be irrelevant because, "for purposes of the 
CVRA definition of 'crime victim,' the only material federal offenses are those for which there is 
a conviction or plea." M., citing Hughey v. United States, 495 U.S. 411, 418 (1979), and In Re 
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Rendon Galvis, 64 F.3d at 175. 
Plainly, the analysis of whether an individual is entitled to invoke rights provided in § 
3771(a) is based upon an examination of the criminal charge in the charging instrument. It 
follows, therefore, that in the absence of any charging instrument, there are no rights under § 
3771(a). 
D. 
In re Dean Is Inapplicable to this Case 
Petitioners rely heavily upon In re Dean, 527 F.3d 391 (5th Cir. 2008). DE 48 at 27-31. 
They argue Dean is "remarkably similar" to their case (DE 48 at 27), but close examination 
demonstrates there are major differences which render Dean inapplicable. 
First, unlike here, a criminal charge was actually filed in Dean. The government in Dean 
filed its criminal information on October 22, 2007, and defendant BP signed the plea agreement 
two days later. Id The information was unsealed, and notices sent to the victims in November 
2007 and January 2008, advising of scheduled proceedings and their right to be heard. On 
February 4, 2008, BP plead guilty at a hearing, and all victims who wished to be heard were 
permitted to speak. 
Second, "[b]efore bringing any charges, the government, on October 18, 2007, filed a 
sealed ex parte motion for 'an order outlining the procedures to be followed under the 
[CVRA].." Id at 392. The government invoked 18 U.S.C. § 3771(d)(2), applicable to cases 
involving multiple crime victims, and sought judicial review and approval of what the 
government deemed was a "reasonable procedure to give effect to this chapter that does not 
unduly complicate or prolong the proceedings." United States v. BP Products North America, 
Inc., 2008 WL 501321 (S.D.Tex. Feb. 21, 2008) at " 2. The government announced to the court 
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that a plea agreement was expected to be signed in about a week, and that because of the number 
of victims, consulting all the victims would not be practicable, and notifying the victims would 
result in media coverage that could impair the plea negotiation process and might prejudice the 
case in the event no plea was reached. Dean, 572 F.3d at 392. The district court granted the 
government's ex pane motion, finding that notifying all the victims was impracticable due to 
their large number, and that extensive media coverage could prejudice the plea negotiation 
process or prejudice the case if no plea was reached. The court directed that, once an agreement 
was signed, the government should provide reasonable notice to all identifiable victims and 
afford the victims of the rights set forth in the CVRA, prior to the actual entry of the guilty plea. 
Id at 393. 
Ultimately, the Fifth Circuit found the district court erred in entering its ex pane order 
because the fewer than 200 victims "could be easily reached." Id. at 394-95. Additionally, the 
Fifth Circuit assailed the district court's reasoning that any public notification of a potential 
criminal disposition of the case, due to extensive media coverage of the explosion, would 
prejudice BP and could impair the plea negotiation process and could prejudice the case in the 
event that no plea was reached. Id. at 395. The Fifth Circuit observed: 
In passing the Act, Congress made the policy decision — which we 
are bound to enforce — that the victims have a tight to inform the 
plea negotiation process by conferring with prosecutors before a 
plea agreement is reached. Id. 
In the instant case, the U.S. Attorney's Office never invoked the Court's authority to 
obtain a dispensation on the application of the CVRA. Since no filing of federal charges was 
contemplated, there was no need to seek Court approval of the manner in which the CVRA 
would be implemented, as in Dean. In Dean, the U.S. Attorney's Office knew that it would be 
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