In re Wild, 955 F.3d 1196 (2020)

In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 955 Pad 1196 United States Court of Appeals, Eleventh Circuit. IN RE: Petitioner. No. 19-13843 (April 14, 2020) Synopsis Background: Alleged victim of child sexual abuse brought civil action against federal government, alleging that government violated Crime Victims' Rights Act (CVRA) by failing to confer with alleged victim before entering into non-prosecution agreement (NPA) with alleged perpetrator. Alleged perpetrator intervened. The United States District Court for the Southern District of Florida, No. 9:08-cv-80736- ICAM, Kenneth A. Marra, Senior District Judge, 359 F.Supp.3d 1201, determined that government had violated CVRA, but after alleged perpetrator's death, alleged victim's requested remedies were denied and the action was dismissed, 411 F.Supp.3d 1321. Alleged victim petitioned for writ of mandamus. (Holding:) The Court of Appeals, Newsom, Circuit Judge, held that as a matter of first impression, victim rights under CVRA, including the right to confer with government's lawyers and the right to be treated fairly by them, do not attach until criminal proceedings have been initiated against a defendant. Petition denied. Tjoflat, Circuit Judge, filed a concurring opinion. Hull, Senior Circuit Judge, filed a dissenting opinion. Procedural Posture(s): Petition for Writ of Mandamus. West Hcadnotes (9) Criminal Law 6•• Civil liabilities to persons injured; reparation Government did not waive, for consideration by Court of Appeals on alleged victim's petition for writ of mandamus, an argument that Crime Victims' Rights Act (CVRA) did not apply if criminal proceedings had not been initiated, though government did not file a cross-appeal from district court's initial determination that CVRA was applicable, which determination had been made before district court dismissed alleged victim's civil action against government because alleged perpetrator of child sexual abuse died while the civil action was pending; proceeding initiated by alleged victim was not an "appeal," and while CVRA directed Court of Appeals to apply ordinary standards of appellate review in a mandamus proceeding brought by a crime victim, CVRA did not direct Court of Appeals to employ rules of procedure for typical appeals. 18 U.S.C.A. § 3771(dX3). 121 Criminal Law iihe Civil liabilities to persons injured; reparation Victim rights under federal Crime Victims' Rights Act (CVRA), including the right to confer with government's lawyers and the right to be treated fairly by them, do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. P 1 18 U.S.C.A. § 3771(a)(5, 8), I it t (c)(1), (d)(3). 131 Criminal Law 4" Civil liabilities to persons injured; reparation Rights under federal Crime Victims' Rights Act (CVRA), including right to confer with federal government's lawyers and right to be treated fairly by them, had not attached when government entered into non-prosecution agreement (NPA) with alleged perpetrator of federal crimes relating to sexual abuse of minors and sex trafficking, where government had not filed charges or othenvise commenced criminal proceedings against alleged perpetrator, who pursuant to the NPA pled guilty to two state prostitution offenses. [ 1. I 18 U.S.C.A. § 3771(a) (5, 8), (dX6). WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. EFTA00073493 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 MI Statutes Construction based on multiple factors In construing a statute, the court begins with a careful examination of the statutory text, looking to the particular statutory language at issue, as well as the language and design of the statute as a whole. Statutes 4- Statute as a Whole; Relation of Parts to Whole and to One Another Statutes 4- Design, structure, or scheme Statutory construction is a holistic endeavor, and a statutory provision that may seem ambiguous in isolation may be clarified by the remainder of the statutory scheme. 161 Federal Civil Procedure 0. Motions in General A "motion" is a request filed within the context of an ongoing judicial proceeding, not a vehicle for launching a new and freestanding piece of litigation. 171 Federal Courts 4- Mandamus While a petition for a writ of mandamus is an original application to the Court of Appeals, the writ is not an independent grant of appellate jurisdiction but, rather, may go only in aid of appellate jurisdiction that exists on some other basis; thus, the minimum condition for mandamus relief is that the case be one that may lie within the prospective future jurisdiction of the Court of Appeals, or that has in fact come within its jurisdiction in the past. 181 Criminal Law ar- Preliminary examination; arraignment; appearance; bail The Sixth Amendment right to counsel does not attach until, at the earliest, a suspect's initial appearance before a judicial officer. U.S. Const. Amend. 6. 181 Constitutional Law Nature and scope in general The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a federal criminal case, and this prosecutorial discretion flows not from a desire to give carte blanche to law enforcement officials but from recognition of the constitutional principle of separation of powers. Attorneys and Law Firms *1198 Paul Cassell, University of Utah College of Law, SALT LAKE CITY, UT, Bradley James Edwards, EdwardsPottinger, LLC, FORT LAUDERDALE, FL, for Petitioner. Richard Christian Komando, Bradley Garrison & Komando, ORANGE PARK, FL, for Amicus Curiae. Nathan Parker Kitchens, Jill E. Steinberg, U.S. Attorney's Office, ATLANTA, GA, for Mandamus Respondent. On Petition for Writ of Mandamus to the United States District Court for the Southern District of Florida, D.C. Docket No. 9:08-cv-80736-KAM Before NEWSOM, TJOFLAT, and HULL, Circuit Judges. Opinion NEWSOM, Circuit Judge: This case, which is before us on a petition for writ of mandamus, arises out of a civil suit filed under the Crime Victims' Rights Act of 2004. Petitioner [REDACTED] is one of more than 30 women—girls, really—who were victimized by notorious sex trafficker and child abuser Jeffrey Epstein. In her petition, Ms. Wild alleges that when federal prosecutors secretly negotiated and entered into a non- prosecution agreement with Epstein in 2007, they violated her rights under the CVRA—in particular, her rights to confer with the government's lawyers and to be treated fairly by them. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 EFTA00073494 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein's hands, only to be left in the dark—and, so it seems, affirmatively misled—by government lawyers, we find ourselves constrained to deny her petition. We hold that at least as matters currently stand —which is to say at least as the CVRA is currently written— rights under the Act do not attach until criminal proceedings have been initiated against a defendant, either by complaint, information, or indictment. Because the government never filed charges or otherwise commenced criminal proceedings against Epstein, the CVRA was never triggered. It's not a result we like, but it's the result we think the law requires. I The facts underlying this case, as we understand them, are beyond scandalous—they tell a tale of national disgrace. Over the course of eight years, between 1999 and 2007, well-heeled and well-connected financier Jeffrey Epstein and multiple coconspirators sexually abused more than 30 minor girls, including our petitioner, in Palm Beach, Florida and elsewhere in the United States and abroad. Epstein paid his employees to find minor girls and deliver them to him—some as young as 14. Once Epstein had the girls, he either sexually abused them himself, gave them over to be abused by others, or both. Epstein, in turn, paid bounties to some of his victims to recruit other girls into his ring. Following a tip in 2005, the Palm Beach Police Department and the FBI conducted a two-year investigation of Epstein's conduct. After developing substantial incriminating evidence, the FBI referred the matter for prosecution to the United States Attorney's Office for the Southern District of Florida. Beginning in January 2007, and over the course of the ensuing eight *1199 months, Epstein's defense team engaged in extensive negotiations with federal prosecutors in an effort to avoid indictment. At the same time, prosecutors were corresponding with Epstein's known victims. As early as March 2007, they sent letters advising each one that "as a victim and/or witness of a federal offense, you have a number of rights." The letters, which the government distributed over the course of about six months, went on to enumerate the eight CVRA rights then in force—including, as particularly relevant here, "[t]he reasonable right to confer with the attorney for the [Government] in the case" and "the right to be treated with fairness and with respect for the victim's dignity and privacy." By May 2007, government lawyers had completed both an 82-page prosecution memo and a 53-page draft indictment alleging that Epstein had committed numerous federal sex crimes. In July, Epstein's lawyers sent a detailed letter to prosecutors in an effort to convince them that, in fact, Epstein hadn't committed any federal offenses. By September, the sides had exchanged multiple drafts of what would become an infamous non-prosecution agreement ("NPA"). Pursuant to their eventual agreement, Epstein would plead guilty in Florida court to two state prostitution offenses, and, in exchange, he and any coconspirators (at least four of whom have since been identified) would receive immunity from federal prosecution. I In June 2008, Epstein pleaded guilty to the state crimes as agreed and was sentenced to 18 months' imprisonment, 12 months' home confinement, and lifetime sex-offender status. The district court found that "[f]rom the time the FBI began investigating Epstein until September 24, 2007"—when the government formally executed the NPA with Epstein— federal prosecutors "never conferred with the victims about a[n] NPA or told the victims that such agreement was under consideration." Doe I v. United States, 359 F. Supp. 3d 1201, 1208 (S.D. Fla. 2019). Worse, it appears that prosecutors worked hand-in-hand with Epstein's lawyers—or at the very least acceded to their requests—to keep the NPA's existence and terms hidden from victims. The NPA itself provided that "[t]he parties anticipate that this agreement will not be made part of any public record" and, further, that "[i]f the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure." Moreover, at approximately the same time that the sides concluded the NPA, they began negotiating about what prosecutors could (and couldn't) tell victims about the agreement. Seemingly in deference to Epstein's lawyers' repeated requests, the government held off—for nearly an entire year—on notifying Epstein's victims of the NPA's existence. And to be clear, the government's efforts seem to have graduated from passive nondisclosure to (or at least close to) active misrepresentation. In January 2008, for example, approximately four months after finalizing and executing the NPA, the government *1200 sent a letter to petitioner stating that Epstein's case was "currently under investigation," explaining that "[t]his can be a lengthy process," and "request[ing her] continued patience while [it] conduct[ed] WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA00073495 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 a thorough investigation." The government sent an identical letter to another victim in May 2008, some eight months after inking the NPA. 2 If secrecy was the goal, it appears to have been achieved —there is no indication that any of Epstein's victims were informed about the NPA or his state charges until after he pleaded guilty. On the day that Epstein entered his guilty plea in June 2008, some (but by no means all) victims were notified that the federal investigation of Epstein had concluded. But it wasn't until July 2008—during the course of this litigation —that petitioner learned of the NPA's existence, and until August 2008 that she finally obtained a copy of the agreement. We are doubtlessly omitting many of the sad details of this shameful story. For our purposes, we needn't discuss the particulars of Epstein's crimes, or the fact that the national media essentially ignored for nearly a decade the jailing of a prominent financier for sex crimes against young girls. 3 Today, the public facts of the case are well known—Epstein was eventually indicted on federal sex-trafficking charges in the Southern District of New York, and in August 2019, while awaiting trial, he was found dead in his jail cell of an apparent suicide. 11 In July 2008, petitioner brought suit in the United States District Court for the Southern District of Florida, styling her initial filing an "Emergency Victim's Petition for Enforcement of Crime Victim's Rights Act." As the district court explained, "because no criminal case was pending" at the time—no federal charges having been filed against Epstein or anyone else—petitioner "filed [her] petition as a new matter ... which the Clerk of Court docketed as a civil action." Does v. United States, 817 F. Supp. 2d 1337, 1341 n.4 (S.D. Fla. 2011). Petitioner alleged that she was a "crime victim" within the meaning of the CVRA and that by keeping her in the dark about their dealings with Epstein, federal prosecutors had violated her rights under the CVRA —in particular, her rights "to confer with the attorney for the Government in the case." 18 U.S.C. § 377I(aX5), and "to be treated with fairness and with respect for [her] dignity and privacy," t § 3771(aX8). 4 Over the course of the ensuing decade, the district court issued a number of significant rulings. For our purposes, three of the court's orders are particularly important. Initially, in 2011 the district court "addresse[d] the threshold issue whether the CVRA attaches before the government brings formal charges against the defendant." Does, 817 F. Supp. 2d at 1341. The court held that "it does because the statutory language clearly contemplates pre-charge proceedings." Id. As relevant here, *1201 the district court relied principally on two CVRA provisions in so holding. First, it pointed to 18 U.S.C. § 3771(c)(1), which the parties here have called the Act's "coverage" provision. That subsection—of which much more later—states that "[o]fficers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)." The district court held that "[s]ubsection (c)(1 )'s requirement that officials engaged in 'detection [or] investigation' afford victims the rights enumerated in subsection (a) surely contemplates pre-charge application of the CVRA." Does, 817 F. Supp. 2d at 1342. Second, the court pointed to subsection (d)(3), which the parties here call the "venue" provision and which states that a crime victim seeking to vindicate his or her rights under the CVRA must file a "motion" either "in the district court in which a defendant is being prosecuted or, if no prosecution is underway, in the district court in the district in which the crime occurred." If, the district court reasoned, "the CVRA's rights may be enforced before a prosecution is underway, then, to avoid a strained reading of the statute, those rights must attach before a complaint or indictment formally charges the defendant with the crime." Does, 817 F. Supp. 2d at 1342. Finally, the district court cited t tt In re Dean, in which the Fifth Circuit had observed that "[a]t least in the posture of th[e] case" before it—the court emphasized that it wasn't "speculat[ing] on the applicability to other situations"—the victim's right to confer with prosecutors applied pre-charge. f 1527 F.3d 391, 394 (5th Cir. 2008). Having "determined ... as a matter of law [that] the CVRA can apply before formal charges are filed," the district court here "defer[red]" ruling on the question whether federal prosecutors had violated the Act until the parties could conduct additional discovery. Does, 817 F. Supp. 2d at 1343. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA00073496 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 Following another eight years of litigation, the district court issued a pair of rulings that prompted the mandamus petition now before us. In February 2019, the court found that the government had infringed petitioner's CVRA rights. See Doe 1, 359 R Supp. 3d at 1222. In particular, the court held that federal prosecutors violated the Act by "enter[ing] into a[n] NPA with Epstein without conferring with Petitioner[ ] during its negotiation and signing." Id. at 1219. "Had the Petitioner[ ] been informed about the Government's intention to forego federal prosecution of Epstein in deference to him pleading guilty to state charges," the district court emphasized, she "could have conferred with the attorney for the Government and provided input." Id. at 1218. The court concluded that it was precisely "this type of communication between prosecutors and victims that was intended by the passage of the CVRA." Id. at 1291. Having found CVRA violations, the court directed the parties —which by then included Epstein as an intervenor—to brief "the issue of what remedy, if any, should be applied." Id. at 1222. In response, petitioner proposed multiple remedies: (1) rescission of the NPA; (2) an injunction against further CVRA violations; (3) an order scheduling a victim-impact hearing and a meeting between victims and Alexander Acosta, the former United States Attorney for the Southern District of Florida; (4) discovery of certain grand-jury materials, records regarding prosecutors' decision to enter into the NPA, and files concerning law-enforcement authorities' investigation of Epstein; (5) mandatory CVRA training for employees of the Southern District's United States Attorney's office; and (6) sanctions, *1202 attorneys' fees, and restitution. In August 2019, while the court was considering the parties' briefing regarding remedies, Epstein died of an apparent suicide; his death prompted another round of briefing on the issue of mootness. In September 2019, having considered the parties' briefing and the impact of Epstein's death, the district court dismissed petitioner's suit, denying each of her requested remedies. See f Doe 1 v. United States, 411 R Supp. 3d 1321 (S.D. Fla. 2019). In its order, the district court made a number of rulings. First, it held that Epstein's death mooted any claim regarding the NPA's continuing validity, as he was no longer subject to prosecution. See id. at 1326. Relatedly, the court held that it lacked jurisdiction to consider petitioner's claim regarding the validity of the NPA as it applied to Epstein's coconspirators; any opinion regarding that issue, the court concluded, would be merely advisory because the coconspirators—as non-parties to the suit—couldn't be estopped from asserting the NPA's validity at any future prosecution. See id. Second, the court denied petitioner's request for an injunction on the ground that she had failed to show "continuing, present adverse effects" or any "real vt and immediate" threat of future CVRA violations. [ Id. at 1328. Third, the court rejected petitioner's requests for a victim-impact hearing and a meeting with Acosta on the grounds that petitioner had already participated in an Epstein- related hearing in New York, that the Epstein prosecution had concluded, and that the government had already agreed to confer with victims concerning any ongoing investigation of Epstein's coconspirators. See id. at 1328-29. Fourth, the court denied petitioner's discovery requests for grand- jury materials and investigative files. See c a id. at 1329- 40. Fifth, the court declined to order "educational remedies," as the government had already agreed to implement CVRA training for employees of the Southern District's United States Attorney's office. Id. at 1330. And finally, the court rejected petitioner's request for sanctions, fees, and restitution. See I id. at 1330-31. Seeking review of the district court's order refusing every remedy that she had sought, petitioner filed—as the CVRA directs—a petition for writ of mandamus with this Court. See 18 U.S.C. § 3771(dX3) (stating that "[i]f the district court denies the relief sought," a victim "may petition the court of appeals for a writ of mandamus"). The government filed a "brief in response" in which it not only opposed petitioner's arguments on the merits, but also raised several threshold arguments concerning the scope of the CVRA and the circumstances in which rights under the Act are judicially enforceable. In reply, petitioner contended (among other things) that by failing to "cross appeal," the government had waived its arguments about the CVRA's applicability and enforceability. 5 sits This case presents a host of issues, many of first impression. Before jumping in, we begin with an introductory summary of the CVRA. III WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA00073497 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 The CVRA is a compact statute, occupying but one section (and only two pages) of the United States Code. See 18 U.S.C. § 3771. The entire Act comprises just six subsections, the pertinent portions of which we will summarize briefly. *1203 The Act opens, in subsection (a), with a catalogue of "rights" that federal law guarantees to "crime victims." (The Act separately defines the term "crime victim" to mean "a person directly and proximately harmed as a result of the commission of a Federal offense." . Id. § 3771(e)(2)(A).) The version of the CVRA in effect during the events in question here—between 2006 and 2008—stated as follows: (a) Rights of crime victims.—A crime victim has the following rights: (1) The right to be reasonably protected from the accused. (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused. (3) 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. (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding. (5) The reasonable right to confer with the attorney for the Government in the case. (6) The right to full and timely restitution as provided in law. (7) The right to proceedings free from unreasonable delay. (8) The right to be treated with fairness and with respect for the victim's dignity and privacy. 18 U.S.C. § 3771(a). Subsection (b), titled "Rights afforded," focuses on courts' responsibilities under the Act. It provides—as relevant here —that "[i]n 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)." Id. § 3771(b)(1). (Subsection (b)(2) pertains to habeas corpus proceedings, in which crime victims enjoy a more limited set of rights; it isn't relevant here.) Subsection (c), titled "Best efforts to accord rights," imposes obligations on non judicial actors. One of its constituent clauses—which we introduced earlier as the so-called "coverage" provision—states as follows: Officers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a). 18 U.S.C. § 3771(cX1). Subsection (d) addresses "Enforcement and limitations." Several of subsection (dX3)'s provisions are relevant here. One—the "venue" provision—states that "[t]he 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 which the crime occurred." Another provides that "[i]f the district court denies the relief sought, the movant may petition the court of appeals for a writ of mandamus"—and as amended in 2015, and thus before petitioner sought review here, it goes on to clarify that in deciding any mandamus petition under the CVRA, "the court of appeals shall apply ordinary standards of appellate review." Subsection (dX6) is also relevant in two respects. First, it states that "Nothing in this chapter shall be construed to authorize a cause of action for damages." Second, and separately, it emphasizes that "[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." *1204 Finally, subsection (f)—we've already introduced subsection (e), which defines the term "crime victim"— instructs the Attorney General to "promulgate regulations to WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 EFTA00073498 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 enforce the rights of crime victims and to ensure compliance by responsible officials with the obligations" concerning those victims. Id. § 3771(f)(1). With that primer, we proceed to address petitioner's case. IV Petitioner contends—and as already explained, the undisputed facts show—that federal prosecutors in the Southern District of Florida negotiated "a secret non- prosecution agreement" with Epstein, and that "[f]rom the time that the FBI began investigating Epstein through the consummation of the secret NPA, the Government never conferred with Epstein's victims about the NPA [or] even told them that such an agreement was under consideration." Petition for Writ of Mandamus at 4-5. By keeping her (and others) in the dark concerning Epstein's NPA, petitioner asserts, the government violated the CVRA. [ II The unique circumstances of this case—and in particular, the fact that Epstein was never charged in the Southern District of Florida—tee up what the district court correctly called a "threshold" question: Does the CVRA apply in the period before criminal proceedings are initiated, either by criminal complaint, information, or indictment? If it does, then we must proceed to consider a cascade of logically subsequent questions—among them, (1) whether the Act authorized the district court to rescind the NPA, both generally and, more specifically, as applied to Epstein's alleged coconspirators; (2) whether petitioner was entitled to discovery of certain grand-jury materials, DOJ records pertaining to prosecutors' decision to enter into the NPA, and FBI files concerning the Epstein investigation; (3) whether petitioner's participation in an Epstein-related victim-impact hearing in New York effectively moots her request for relief here; and (4) whether federal law entitles petitioner to recover attorneys' fees. If, by contrast, the CVRA doesn't apply before the commencement of criminal proceedings, then ow inquiry is at an end. 6 *1205 [2] [3] Whether the CVRA applies prior to the initiation of criminal proceedings is not just a threshold question, but also a question of first impression in this Circuit. The Fifth Circuit has stated—albeit in dictum, without meaningful explanation, and seemingly without the benefit of adversarial testing—that the Act can apply before criminal proceedings begin. See In re Dean, 527 F.3d 391, 394 (5th Cir. 2008). The Sixth Circuit has deemed it "uncertain" whether CVRA protections apply "prior to [the] filing of ... charges." In re Acker, 596 F.3d 370, 373 (6th Cir. 2010). The district courts that have considered the question are divided. Compare, e.g., 1' United States it Oakum, No. 3:08CR132, 2009 WL 790042, at *2 (E.D. Va. Mar. 24, 2009) (holding that CVRA rights can attach prior to the commencement of criminal proceedings), with, e.g., United States v. Daly, No. 3:11CR121 AWT, 2012 WL 315409, at *4 (D. Conn. Feb. 1, 2012) (holding to the contrary). As already explained, the district court here concluded that the CVRA can apply before the initiation of criminal proceedings —"pre-charge," for short—and, accordingly, that petitioner enjoyed the protections of the Act during the period that preceded the execution of Epstein's NPA. In particular, petitioner asserts in these proceedings that the government violated her "reasonable right to confer" with the lead prosecutor, L 18 U.S.C. § 3771(aX5), and her right "to be treated with fairness," id. § 3771(aX8)—neither of which, she says, is limited by its terms to the post-charge phase of a criminal prosecution. 7 In support of her position that CVRA rights can apply before criminal proceedings begin, petitioner points (as did the district court) to II a § 3771(c) (1)—which refers to federal-government agencies engaged in the "detection [and] investigation" of crime, in addition to its "prosecution"—and to C a § 3771(d)(3) -which, in specifying the venue where a victim should seek relief under the Act, refers to the eventuality that "no prosecution is underway." The interpretation of the CVRA that petitioner advances, and that the district court adopted, is not implausible; the CVRA could be read to apply pre-charge. We conclude, though— reluctantly, especially given the mistreatment that petitioner seems to have suffered at the hands of federal prosecutors— that the Act is neither best nor most naturally read that way. For reasons that we will explain, we hold that (1 ) the CVRA's text and structure, (2) the historical context in which the Act was passed, and (3) the prosecutorial-discretion principles that the Act was designed to safeguard—and which, we think, petitioner's interpretation would compromise—demonstrate that its protections apply only after the initiation of criminal proceedings. If Congress believes that we have misinterpreted the CVRA—or, for that matter, even if it believes that we have WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 EFTA00073499 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 correctly interpreted the statute as currently written but that its scope should be expanded—then it should amend the Act to make its intent clear. A [4] In construing the CVRA, "we begin, as we must, with a careful examination of the statutory text," *1206 Henson v. Santander Consumer USA Inc., — U.S. —, 137 S. Ct. 1718, 1721, 198 L.Ed.2d 177 (2017), looking "to the particular statutory language at issue, as well as the language and design of the statute as a whole," K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). On balance, we conclude that the Act's terms—including the provisions on which petitioner relies—demonstrate that its protections apply only after the commencement of criminal proceedings. 1 [51 We begin where petitioner does, with the catalogue of "rights"—quoted in full above—that the CVRA guarantees to "crime victims." (As already noted, the Act defines the term "crime victim"—more on that later.) Petitioner relies chiefly on § 3771(a)(5)'s guarantee of a "reasonable right to confer with the attorney for the Government in the case," and !' I § 3771(a)(8)'s guarantee of the "right to be treated with fairness." She contends that by failing to inform her— and worse, affirmatively misleading her—about its ongoing negotiations with Epstein, the government violated both provisions. We will address subsections (a)(5) and (8) in due course, but because "[s]tatutory construction ... is a holistic endeavor," and because "[a] provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme," It a United Sam. Ass'n of Tex. a Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988), we first examine the balance of [ § 3771(a).8 In the main, anyway—and there isn't any real dispute about this—the CVRA's enumeration seems to focus on the post- charge phase of a criminal prosecution, and in particular on ensuring that crime victims have notice of(and an opportunity to be heard in) pending criminal proceedings. Indeed, six of the eight rights listed in § 3771(a)—all except for those specified in subsections (5) and (8)—either expressly refer to or necessarily presuppose the existence of an ongoing criminal proceeding. Subsections (a)(2), (3), (4), and (7) leave no doubt whatsoever—all of them apply, by their plain terms, to "proceeding[s]," "public proceedings," or "public court proceedings." Not surprisingly, there seems to be general agreement that these "proceeding"-focused rights apply only after the filing of a complaint or criminal charges. See Reply in Supp. of Pet. at 17; Paul G. Cassell, et aL, Crime Picini's' Rights During Criminal Investigations? Applying the Crime Victims' Rights Act Before Criminal Charges Are Filed, 104 J. of Crim. L. and Criminology 59, 71 (2014). Subsections (aX I ) and (6) aren't quite as clear, but they too are best understood as specifying rights that attach only after criminal proceedings have begun. Subsection (I) guarantees a crime victim's right to protection from "the accused." r § 3771(a)(1). Both in ordinary spoken English and as a legal term of art, the word "accused" refers to someone against whom criminal proceedings have been commenced. See, e.g., IVebster's New International Dictionary 17 (2d ed. 1944) (defining "accused" as "one charged with an offense; the defendant in a criminal case"); see also "'Michigan v. Jackson, 475 U.S. 625, 632,106 S.Ct. 1404, 89 L.Ed.2d 631 (1986) ("[A]fler a formal accusation has been made ... a person who had previously been just a 'suspect' has become an 'accused' within the meaning of the Sixth Amendment...:'). Subsection (aX6), *1207 which guarantees a victim's right to "full and timely restitution," likewise presupposes the initiation—and indeed perhaps the maturation or even conclusion—of criminal proceedings. Black's, for instance, defines the term "restitution," in relevant part, to mean "[c]ompensation for loss; esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation." Black's Law Dictionary 1507 (10th ed. 2014). So, it seems to us, the rights enumerated in subsections (a) (I), (2), (3), (4), (6), and (7) are properly understood as applying only after the initiation of criminal proceedings. And again, petitioner doesn't really contend otherwise. Instead, she focuses on subsections (a)(5) and (8), which she says are framed broadly enough that they can be understood to apply pre-charge. Let's take a closer look. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 EFTA00073500 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 Subsection (a)(5) guarantees a crime victim the "reasonable right to confer with the attorney for the Government in the case." Petitioner and her lead counsel (in his academic writings) emphasize that this provision refers to the attorney handling "the case" rather than "the charges," Reply in Supp. of Pet. at 17, and they assert that the term "case" can "refer both to a judicial case before a court and an investigative case pursued by a law enforcement officer," Cassell et al., supra, at 72 (emphasis added).9 Although it's true, at least in the abstract, that the term "case" can mean either thing, in legal parlance the judicial-case connotation is undoubtedly primary. See, e.g., Black's, supra, at 258-59 (defining "case" first as "[a] civil or criminal proceeding, action, suit or controversy at law or in equity" and only second as "[a] criminal investigation"); IVebsters New International, supra, at 415 (defining "case" as used in "[flaw" as "a suit or action in law or equity; a cause"). Moreover, and in any event, two contextual considerations convince us that, as used in subsection (a)(5), the term "case" refers to an ongoing judicial proceeding, not a law-enforcement investigation. First, the Supreme Court has held that in the criminal context, a "case" does not "encompass the entire criminal investigatory process," but rather "at the very least requires the initiation of legal proceedings." P M()Chavez it Martinez, 538 U.S. 760, 766, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003). Notably, in so holding, the Court drew on longstanding tradition, citing its now nearly 150-year-old decision in Blyew a United States for the proposition that the word "case" is synonymous with the word "cause" and "rnean[s] a proceeding in court, a suit, or action." 80 U.S. (13 Wall.) 581, 595, 20 L.Ed. 638 (1872). Second, and separately, subsection (a)(5) refers not just to "the case" in general, but more particularly to "the attorney for the Government in the case." While it is undoubtedly true that government lawyers may be involved in a criminal investigation pre-charge, the provision's reference to a single, specific individual —"the attorney for the Government'—indicates that the conferral right attaches only after proceedings have begun, at which point that particular person will presumably be more readily identifiable. Cf. I *1208 Rumsfeld it Padilla, 542 U.S. 426, 434-35, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004) (holding that the "use of the definite article ... indicates that there is generally only one" person covered). By the same token, there will surely be many criminal investigations to which no lawyers have (yet) been assigned—let alone a single, identifiable "attorney for the Government." Accordingly, if, as petitioner asserts, subsection (aX5) was intended to apply pre-charge, during the investigation phase, it makes little sense that Congress would have tethered the conferral right to a single government lawyer. On balance, therefore—and particularly in the light of subsections (a)(I), (2), (3), (4), (6), and (7), all of which clearly apply only after the initiation of criminal proceedings —we conclude that § 3771(a)(5)'s conferral right does not attach during the pre-charge, investigatory phase. Rather, subsection (a)(5) is best understood as guaranteeing a crime victim's right to consult with the lead prosecutor—i.e., "the attorney for the Government"—in a pending prosecution —i.e., "the case." 19 Petitioner also relies (albeit more obliquely) on subsection (a)(8), which vaguely guarantees a crime victim's right "to be treated with fairness and with respect for [his or her] dignity and privacy." It is certainly true that this fair-treatment right has no inherent temporal limitation—on its face, it could apply pre-charge, post-charge, or for that matter even post-conviction. But well-established canons of interpretation require us to interpret subsection (a)(8)'s general right to fair treatment by reference to the subsections (and their constituent rights) that precede it. See, Johnson it United States,559 U.S. 133, 139,130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Ultimately, context determines meaning ...."); Pi Gutierrez v. Ada, 528 U.S. 250, 255, 120 S.Ct. 740, 145 L.Ed.2d 747 (2000) ("[W]ords and people are known by their companions."). Because the rights enumerated in subsections (a)(I)—(7) are best understood as applying only after the institution of criminal proceedings, subsection (a) (8)'s guarantee of "fairness" is, too. What the Supreme Court said recently in applying noscitur a sociis—"the well-worn Latin phrase that tells us that statutory words are often known by the company they keep"—applies here as well: In ? t§ 3771(a), "we find ... both the presence of company that suggests limitation and the absence of company that suggests breadth." ti Lagos v. United States, —U.S. —, 138 S. Ct. 1684, 1688-89, 201 L.Ed.2d I (2018). 1 Taken as a whole. then, we conclude that the catalogue of rights specified in § 3771(a) are best read as applying only after the institution of criminal proceedings. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 EFTA00073501 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 2 We are fortified in that conclusion by the only two provisions of the Act that speak directly to judicial enforcement of victims' statutory rights. *1209 The first is § 3771(b), titled "Rights afforded." At oral argument, petitioner's counsel invoked subsection (b)(1) affirmatively, noting—with emphasis—its directive that "the court shall ensure that the crime victim is afforded the rights" enumerated in subsection (a). See Oral Arg. at 5:45-5:57. True, but that's only part of the story. In its entirety, subsection (b)(1) reads as follows: "In any court proceeding involving art offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a)." C II 18 U.S.C. § 3771(b)(1) (emphasis added). By its plain terms, then, subsection (bX1) empowers courts to enforce CVRA rights only during pending criminal proceedings—of which there were none here. The second is § 3771(d), which specifies—and strictly circumscribes—the procedural mechanisms by which an alleged victim must assert and seek to enforce CVRA rights. Two (related) points are worth making. As an initial matter, the Act clearly indicates that Congress did not intend to authorize private individuals to initiate stand-alone suits or actions, outside the confines of existing criminal proceedings, to enforce their statutory rights. Quite the contrary, in fact —subsection (d)(6), titled "No Cause of Action," expressly states that "[n]othing in this chapter shall be construed to authorize a cause of action for damages." f § 3771(d) (6)). Cf.? Alexander v. Sandoval, 532 U.S. 275, 286, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) (explaining that "[1]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress"). some action which is incidental to the main proceeding .... Such action is invoked by an application usually less formal than the pleadings, and is called a motion.' " (quoting John C. Townes, Studies in American Elementary Law 621 (1911)); cf. Fed. R. Civ. P. 3, 7 (distinguishing between a "motion" and a "pleading"—the latter of which is defined to include a "complaint," which is the prescribed vehicle for commencing a freestanding action). 13 *1210 The facts that the CVRA (1) does not sanction freestanding suits and (2) does prescribe mid-proceeding "motion[s]" combine—especially in conjunction with subsection (a)'s enumeration—to indicate that the Act's protections apply only after the initiation of criminal proceedings. 14 3 In fairness, petitioner is not without her own textual arguments. In urging us to hold that CVRA rights—or at least some of them—apply even before the initiation of criminal proceedings, she relies principally on two subsections, which the parties call the "coverage" and "venue" provisions, respectively. Neither, we conclude, clearly demonstrates that the rights specified in the Act attach during the pre-charge, investigative phase. t Petitioner first points to t § 3771(c)(1)—the "coverage" provision—which, as already explained, states that "[o]fficers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)." a 18 U.S.C. § 3771(c)(1). From the premise that "the CVRA applies to the 'detection [or] investigation' of crimes," petitioner reasons to the conclusion, which the district court adopted, that "the [6] [7] Instead—and this is point two—subsection (d)(3) Act's drafters 'surely contemplate[d] pre-charge application specifies that a victim must assert his or her rights in a "motion of the CVRA.' " Reply in Supp. of Pet at 15 (quoting Does, for relief' filed in district court and requires the court to consider and decide that "motion" promptly. 18 U.S.C. § 3771(dX3). As commonly understood, a "motion" is a request filed within the context of an ongoing judicial proceeding, not a vehicle for launching a new and freestanding piece of litigation. 12 See, e.g., Black's, supra, at 1168 ("'Frequently, in the progress of litigation, it is desired to have the court take 817 F. Supp. 2d at 1342). We disagree for two reasons. First, understood in proper context, it seems clear to us that subsection (c)(1) is a "to whom" provision, not a "when" provision. That is, it clarifies that CVRA obligations extend beyond the officers and employees of "the Department of Justice" to include, as well, the officers and employees of "other departments and agencies of the United States" that WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 EFTA00073502 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 (like DOJ) are "engaged in the detection, investigation, or prosecution of crime"—e.g., IRS, ICE, and TSA. Those agencies' employees, like DOJ's, must "make their best efforts to see that crime victims" are afforded CVRA rights. Subsection (c)(1) doesn't expressly *1211 speak to when CVRA rights attach, and it certainly doesn't clearly demonstrate that those rights attach before the initiation of criminal proceedings. Government employees (whether of DOJ or some other Dal-like agency) who are involved in all three of the referenced phases are necessarily involved post-charge. Subsection (cX1) simply makes clear that the Act reaches beyond prosecutors (and DUI) to reach other actors in the criminal justice system. IS Second, and more importantly, petitioner's reliance on I § 3771(c)(1) proves entirely too much. If, as petitioner thinks subsection (c)(1) shows, CVRA rights apply during the "detection" and "investigation" of crime, then there is no meaningful basis—at least no meaningful textual basis— for limiting the Act's pre-charge application to the NPA context. To the contrary, on petitioner's reading, subsection (c)(1) would—to cite just a few examples—require law- enforcement officers to "confer" with victims, subject only to a squishy "reasonable[ness]" limitation, see § 3771(a) (5), before conducting a raid, seeking a warrant, making an arrest, interviewing a witness, convening a lineup, or conducting an interrogation. Absent a much clearer indication, we cannot assume that Congress intended such a jarring result. Presumably sensing the slipperiness of their position, petitioner and her counsel have said that courts can simply draw the line farther downstream—when, for instance, as counsel put it at oral argument, an investigation has "matured" to the point where (as here) prosecutors "are negotiating with defense attorneys and signing agreements." Oral Arg. at 8:30, 9:10-9:17. "At that point at least," counsel said, "a conferral right exists" under subsection (a)(5). Id. at 9:10-9:17. That is a line, to be sure—and a line that happens to capture this case—but it has no footing whatsoever in the "detection [or] investigation" language to which petitioner points in support of her position. 16 As tempting as it might be to do so—especially on the facts before us here—we cannot re-write, or arbitrarily circumscribe, the Act's text simply to make it fit petitioner's theory. 17 *1212 For these reasons, we cannot accept petitioner's contention that § 3771(c)(1) demonstrates that the CVRA applies before the initiation of criminal proceedings. Petitioner is on slightly stronger footing, we think, in pointing to the CVRA's "venue" provision, t § 3771(d) (3). In relevant part, that provision states that "[t]he 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 which the crime occurred." Petitioner contends—and the district court agreed—that the "no prosecution is underway" clause must mean that CVRA rights "'may be enforced before a prosecution is underway' " and, accordingly, that " 'those rights must attach before a complaint or indictment formally charges the defendant with the crime.' "Reply in Supp. of Pet. at 15 (quoting Does, 817 F. Supp. 2d at 1342). Petitioner's interpretation of subsection (dX3) is not implausible—that provision could be read to mean that CVRA rights attach before the commencement of criminal proceedings. But it isn't necessary, either, and in light of the remainder of the Act's text—and the practical implications of petitioner's construction, the details of which we explore below—we are reluctant to adopt it, or at least to invest it with the significance that petitioner does. [8] There are, we think, at least two alternative ways of understanding f1 § 3771(dX3). First, and perhaps most obviously, it could be read to apply to the period of time between the initiation of criminal proceedings—which may occur as early as the filing of a criminal complaint under Federal Rule of Criminal Procedure 3—and the levying of formal charges in an indictment."' The word "prosecution"—on which subsection (d)(3) pivots—is a legal term of art; in relevant part, it refers to "[t]he institution and continuance of a criminal suit [and] the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the state or government, as by indictment or information." Webster :r New International, supra, at 1987. Moreover, the law is clear, at least for Sixth Amendment right-to-counsel purposes, that a "prosecution" does not begin with the criminal complaint's filing. See P. United States v. Alvarado, 440 F.3d 191, 199-200 (4th Cir. 2006) ("The filing of a federal criminal complaint does not commence a formal prosecution."); see also, e.g., ‘I United States v. States, 652 F.3d 734, 741- 42 (7th Cir. 2011) (same); P a United States v. Boskic, 545 F.3d 69, 82-84 (1st Cir. 2008) (same). Rather, the Sixth Amendment right does not attach—because a "prosecution" does not begin—until, at the earliest, a suspect's "initial WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 EFTA00073503 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 appearance before a judicial officer." a Rothgery v. Gillespie County, Tex., 554 U.S. 191, 199,128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). All of which is to say that even if petitioner and the district court were correct that the "no prosecution is undenvay" clause meant that CVRA rights apply "before" formal charges are filed, they may yet be incorrect that those rights should be understood to attach during a pre-complaint investigation. Subsection (d)(3) can be read sensibly enough to apply (and to *1213 give victims the right, for example, to "confer" with prosecutors, ' § 377I(a)(5)) between the filing of the criminal complaint and the suspect's initial appearance before a judge—and thus, for instance, to express their views to prosecutors about whether the defendant should be granted pretrial release. See? I Fed. R. Crim. P. 5(d)( I )(C) (noting that pretrial-release decisions are made at the "initial appearance"). Alternatively, subsection (d)(3) could be interpreted to refer to the period after a "prosecution" has run its course and resulted in a final judgment of conviction. Petitioner and the district court read the "no prosecution is underway" clause to say, in effect, "no prosecution is [yet] underway"— thereby necessarily pointing to the period "before" (their word) the prosecution's commencement. But subsection (d) (3)'s is temporally agnostic—on its face, it could just as easily mean that "no prosecution is [still] underway." CI Underway, Oxford English Dictionary, https://oed.com/view/ Entry/212225?rskey=h1o1T7 & result= I /kid (last visited April 13, 2020) (defining "underway" as it pertains to "a process, project, [or] activity" to mean "set in progress; in the course of happening or being carried out"). No one doubts, for instance, that a victim could file a post-judgment motion alleging that the government violated her rights during the course of the prosecution and asking the court, say, to "re- open a plea or sentence." C u 18 U.S.C. § 3771(d)(5). 19 Moreover, petitioner's broad reading of § 377I(d)(3) suffers from the same slippery-slope problems that plague her reading of , § 3771(c)(1). To say, as the petitioner does—and as the district court did—that subsection (d)(3) indicates that CVRA "rights must attach before a complaint or indictment formally charges the defendant with the crime,' " Reply in Supp. of Pet. at 15 (quoting Does, 817 F. Supp. 2d at 1342), tells us nothing about how long "before." Again, must prosecutors consult with victims before law- enforcement officers conduct a raid, seek a warrant, or conduct an interrogation? That seems exceedingly unlikely. As we've explained, petitioner understandably wants to craft a rule that will cover this case without opening the floodgates to those possibilities—seemingly by reference to some sort of once-the-investigation-has-matured criterion. That criterion, though, has no basis in the CVRA's text. Petitioner's reading of subsection (d)(3)'s "no prosecution is undenvay" clause —like her reading of subsection (cX1)'s "detection [or] investigation" clause—provides no logical stopping point. iii For all these reasons, we conclude that the CVRA's text is best read as applying only after the commencement of criminal proceedings, whether by complaint, information, or indictment.20 *1214 B The historical context in which the CVRA was enacted confirms what the Act's text indicates—namely, that it was not meant to apply prior to the institution of criminal proceedings. Congress enacted the CVRA against the backdrop of another victims'-rights statute, the Victims' Rights and Restitution Act of 1990. The CVRA repealed and replaced some parts of the VRRA, but left others intact. Notably, the "Services to victims" section of the VRRA, which the CVRA preserved, includes provisions that, by their express terms, plainly apply before criminal proceedings begin.21 That section opens with a phrase that the CVRA repeats— noting that it applies to government agencies "engaged in the detection, investigation, or prosecution of crime." 34 U.S.C. § 20141(a). Unlike the CVRA, though, the VRRA directs the head of each such agency to designate individuals who will be responsible for identifying victims and for performing certain victim-related services "at each stage of a criminal case." Id. The VRRA goes on state that "[a]t the earliest opportunity after the detection of a crime at which it may be done without interfering with an investigation, a responsible official shall ... identify the victim or victims of a crime [and] inform the victims of their right to receive, on request, [certain enumerated] services." Id. § 20141(b). By referring to the period immediately following "the detection of a crime" and to the existence of an ongoing "investigation"— with which the responsible official should be careful not to "interfer[e]"—the VRRA clearly extends victim-notice rights into the pre-charge phase. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 EFTA00073504 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 The VRRA is similarly explicit when describing the sorts of "services" to which victims are entitled. Following subsection (a)'s direction, subsection (c) marches—methodically, and roughly chronologically—through the various "stage[s]" of a crime's commission, detection, investigation, and prosecution. Subsection (c)(1) states, for instance, that "the responsible official shall"—presumably immediately in the aftermath of a crime's commission, and thus by definition before any charges are filed—inform the victim where she can "receive emergency medical and social services." Id. § 20141(c)(1)(A). Subsection (c)(2) then provides that the responsible official shall ensure that the victim receives "reasonable protection from a suspected offender"—notably, not "the accused," *1215 as in the CVRA, but "a suspected offender." Id. § 20141(c)(2). Continuing, subsection (c) (3) states that the official shall provide the victim "the earliest possible notice" of, among other things, and under appropriate circumstances, "the status of the investigation of the crime" and "the arrest of the suspected offender—both of which, obviously, refer to pre-charge events. Id. § 20141(c) (3)(A)—(B). It is not until subsection (cX3)(C)—which refers to "the filing of charges against a suspected offender—that the VRRA's focus conspicuously shifts to rights pertaining to "charges," "trial[s]?"hearing[s]," and "proceedings." See id. § 20141(cX3)(C)—(cX5). The VRRA's provisions—about which Congress indisputably knew when it framed and enacted the CVRA—demonstrate that when Congress wants to extend victims-rights protections pre-charge, it knows how to do so, and does so expressly. The fact that the CVRA contains no similar language counts heavily against petitioner's interpretation under what we have called an entire "family" of interpretive canons. See Fmemanville Iffater Sys., Inc. v. Poach Band of Creek Indians, 563 F.3d 1205, 1209 (11th Cir. 2009) (citing the interrelated principles, for instance, that "where Congress knows how to say something but chooses not to, its silence is controlling," and that "when Congress uses different language in similar sections, it intends different meanings" (citations omitted)). 22 sits Together, these textual and contextual considerations lead us to conclude that, on balance, the CVRA is best interpreted to apply only after the commencement of criminal proceedings. Although not precisely on point, we find resonance in much of what the Supreme Court recently said in ? 'Lagos v. United States, — U.S. —, 138 S. Ct. 1684, 201 L.Ed.2d 1 (2018), which concerned another federal victims'-rights statute, the Mandatory Victims Restitution Act. In particular, the Court there addressed a portion of that statute requiring reimbursement of expenses that a crime victim "incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense." ? 1 18 U.S.C. § 3663A(b)(4). The question before the Court was whether that provision should be interpreted narrowly, to require reimbursement only of those expenses that a victim incurred during a government "investigation" and criminal proceedings," or more broadly, to include expenses incurred during any "investigation" and any case-related "proceedings."? Lagos, 138 S. Ct. at 1688. The Court unanimously adopted the narrower reading. In doing so, the Court readily acknowledged that there were "contrary arguments ... favoring a broad interpretation"— in particular, that the more limited reading "will sometimes leave a victim without a restitution remedy sufficient to cover some offense-related expenses and thereby contravene the Act's *1216 "broad purpose."? Id. at 1689. The Court further conceded that while it thought the statute's "individual words suggest[ed]" a more "limited interpretation," they "d[id] not demand" it. ? 11d. at 1688. Even so, the Court held that, understood in context—for instance, the fact that the terms "investigation" and "proceedings" were both linked to the word "prosecution"—the more limited reading was preferable from a textual and structural standpoint. The Court also emphasized that "Congress ha[d] enacted many different restitution statutes with differing language, governing different circumstances," and that while some of them contained provisions specifically requiring "full" restitution, the Mandatory Victims Restitution Act "contain[ed] no such language?? a Id. at 1689-90. The Court concluded its interpretive analysis this way: "[G]iven th[e] differences between the Mandatory Victims Restitution Act and other restitution statutes, we conclude that the considerations we have mentioned, particularly those based on a reading of the statute as a whole, tip the balance in favor of our more limited interpretation? ? a Id. at 1690. Just so here. In light of CVRA's text's overarching focus on the period following the initiation of criminal proceedings, and the obvious differences between the CVRA and the VRRA— which by its terms plainly reaches into the pre-charge phase WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 EFTA00073505 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 —we too conclude that the interpretive balance tips in favor of a more limited reading. C There is a final consideration here, and it is to ow minds a weighty one. The CVRA's final substantive provision— which Congress slotted in just before statutory definitions and a closing directive to the Attorney General to promulgate implementing regulations—states that "[n]othing in this chapter [i.e., the entirety of the Act] shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." f I 18 U.S.C. § 3771(d)(6). For reasons we will explain, we conclude that petitioner's "constru[ction]" of the Act—as applying before the initiation of criminal proceedings—would indeed "impair ... prosecutorial discretion." [9] Broadly defined, the term "prosecutorial discretion" refers to the soup-to-nuts entirety of "[a] prosecutor's power to choose from the options available in a criminal case, such as filing charges, prosecuting, not prosecuting, plea- bargaining, and recommending a sentence to the court." Black's, supra, at 565. The core of prosecutorial discretion, though—its essence—is the decision whether or not to charge an individual with a criminal offense in the first place. The Supreme Court has repeatedly reaffirmed the principle— which dates back centuries—that "the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case." 1/ United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (citing Confiscation Cases, 74 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1869)). 23 *1217 We believe that petitioner's interpretation of the CVRA risks "impair[ing] ... prosecutorial discretion" in at least two fundamental ways. As an initial matter, consider that the very first determination that a court must make when asked to enforce the CVRA is whether the party seeking the Act's benefit is a "crime victim." The reason is because the CVRA's opening provision makes clear that the Act's protections—the rights enumerated therein, already discussed at some length—are available only to "crime victim[s]." 18 U.S.C. § 377I(a) ("A crime victim has the following rights ...."). Notably for ow purposes, the CVRA statutorily defines the term "crime victim" to mean "a person directly and proximately harmed as a result of the commission of a Federal offense." Id. § 377I(eX2). Accordingly, any movant asserting rights under the CVRA must, at the very outset, demonstrate to the district court that he or she is a "crime victim" entitled to statutory protection. And, given the statutory definition's terms, in order to determine whether the movant has made the requisite showing, the court must decide whether a "Federal offense" has occurred. When a prosecutor has already commenced criminal proceedings against an identifiable individual for a specific crime, he or she has made at least a presumptive determination that the individual has in fact committed a "Federal offense." So, as applied post-charge—in the context of ongoing criminal proceedings—the "crime victim" determination is straightforward: An individual who has been "directly and proximately harmed" as a result of the conduct charged by the government is entitled to CVRA protection. Not so before the commencement of criminal proceedings. In that circumstance, if a movant were to assert CVRA rights as a "crime victim," the court would first have to determine—but this time without any initial determination by the government in the form of a charging decision and, indeed, presumably while the government's investigation is ongoing—whether or not a "Federal offense" has been committed. That scenario—which is a necessary consequence of petitioner's interpretation—presents at least three intractable problems. First, and most obviously, petitioner's reading puts the cart before the horse: When else, if ever, is a court called on to decide whether an "offense" (Le., a crime) has occurred —as opposed to a moral wrong more generally—before the government has even decided to press charges? The answer, so far as we are aware, is never. Second, how, in the absence of a charging decision, would the court even go about ascertaining whether an "offense" had occurred? What would that proceeding look like? A mini- (or perhaps a not-so-mini-) trial in which the court finds facts and makes legal determinations regarding an "offense" yet to be named? Finally, and in any event, it seems obvious to us that simply by conducting such a proceeding and by concluding (up front) that an "offense" has—or has not— occurred, the court would not only exert enormous pressure on the government's charging decisions, but also likely impair the government's ongoing investigation. *1218 The "impair[ment]" of prosecutorial discretion, we think, would be palpable. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 EFTA00073506 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 Separately, even if the threshold "crime victim" barrier could be overcome, the enforcement of CVRA rights in the pre-charge phase would risk unduly impairing prosecutorial discretion. Consider, as a general matter, how CVRA enforcement occurs. If, for instance, an individual claiming to be a covered victim believes—as did petitioner here— that the government hasn't "confer[red]" with her in the manner prescribed by § 3771(a)(5) or "treated [her] with fairness" as required by § 377I(aX8), then she will—as did petitioner here—ask a district court to "order" prosecutors to confer and to treat her "fair[ly]." See Emergency Pet. at 2. Even in the post-charge phase, those are pretty extraordinary requests. It is no small thing to ask a judge to issue an injunction ordering the government's lawyers (presumably on pain of contempt) to conduct their prosecution of a particular matter in a particular manner. But at least after the commencement of criminal proceedings—and accordingly after the government has submitted itself and its case to the district court's jurisdiction and supervision—the CVRA explicitly authorizes the court's intervention. Congress made a clear determination that the intrusion was necessary and appropriate. Before the commencement of criminal proceedings, though, the intrusion would be significantly greater, both quantitatively and qualitatively. As a quantitative matter, petitioner's interpretation—pursuant to which the CVRA's protections would extend into the "detection" and "investigation" phases—risks greatly multiplying the sheer number of opportunities for judicial intervention in law- enforcement and prosecutorial affairs. Freed from any line limiting the Act's applicability to the post-charge phases of a prosecution, courts would be empowered to issue injunctions requiring (for instance) consultation with victims before raids, warrant applications, arrests, witness interviews, lineups, and interrogations. That would work an extraordinary expansion of an already-extraordinary statute. The intrusion occasioned by a pre-charge interpretation of the CVRA would also be qualitatively different. The commencement of criminal proceedings marks a sensible boundary on the prosecutorial-discretion spectrum. As already explained, before charges are filed—when the government is still in the process of investigating and deciding "whether to prosecute"—its authority and discretion are understood to "exclusive" and "absolute." k Nixon, 418 U.S. at 693, 94 S.Ct. 3090. By contrast, once the charging decision is made, the prosecutor steps into the court's jurisdiction—its "house," to speak—and thus necessarily cedes some of her control of the course and management of the case. From that point forward, the court will "assume a more active role in administering adjudication of a defendant's guilt and determining the appropriate sentence." United States v. Fokker Servs. B. V, 818 F.3d 733, 737 (D.C. Cir. 2016). Interpreting the CVRA to apply post-charge—as its terms plainly permit—thus squares with the background expectation of judicial involvement. Interpreting the Act to apply pre-charge, by contrast, contravenes the background expectation of executive exclusivity.24 *1219 sss For reasons we have explained, we conclude that the CVRA is best understood—in accordance with its terms and the context in which it was enacted—to apply only after the initiation of criminal proceedings. To the extent the Act's language and structure leave any doubt about its proper scope, we must assume that Congress "acted against the backdrop of long-settled understandings about the independence of the Executive with regard to charging decisions." Fokker Servs., 818 F.3d at 738. Had Congress intended to upend (rather than reinforce) those "long-settled understandings," we can only assume it would have expressed itself more clearly. See, e.g., i. Puerto Rico v. Franklin California Tax-Free Trust, — U.S. —, 136 S. Ct. 1938, 1947, 195 L.Ed.2d 298 (2016) ("Congress `does not, one might say, hide elephants in mouseholes.' " (quoting /I Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001))). 25 *1220 V For the foregoing reasons, we hold 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 any judicially enforceable rights. Having so held, two final words. First, regarding the dissent: Although we have endeavored along the way to meet a few of the dissent's specific critiques, we must offer here two more global responses. As an initial matter, with respect to the dissent's charge (Dissenting Op. at 1226) that we have "dresse[d] up" what it calls a "flawed WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 EFTA00073507 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 statutory analysis" with "rhetorical flourish"—well, readers can judge for themselves whose rhetoric is in fact more florid. See, e.g., id. at 1224 ("So how does the Majority bail the U.S. Attorney's Office out of its egregious CVRA violations ... ?"); id. at 1224 ("So how in the holy name of plain text ... ?"); id. ("The Majority hacks away at the plain text with four tools."); id. ("The Majority cherry picks the meaning of `case' ...."); id. at 1239 ("Nonsense."); id. at 1240 ("As its third tool to axe the plain text ...."); id. ("Do not fall for this."); id. 1241 (accusing us of ruling "by judicial fiat"); id. at 1245-46 (twice accusing us of fearing crime victims more than "wealthy defendants"). More substantively, it remains unclear to us exactly how the dissent thinks the CVRA should be interpreted and applied. It's obvious that our dissenting colleague doesn't particularly like ow reading—namely, that CVRA rights don't attach before the initiation of criminal proceedings. (Which is fine —as we've already confessed, we don't particularly like it either.) But she offers no intelligible alternative of her own. At times, the dissent suggests—broadly, but without elaboration—that the Act should be construed to apply "pre- charge."See Dissenting Op. at 1226-27, 1237,1239-40 n.19, 1240, 1243, 1244, 1245-46, 1246-47. That reading (while we think wrong) at least has the benefit of coherence and clarity. But the dissent (we think wisely) doesn't seem eager to defend so sweeping an interpretation, presumably because it has no logical stopping point. Instead, the dissent hints— although again, without any real explanation—that CVRA rights should be understood to apply only (or at least?) "once the criminal case has matured to plea negotiations." Id. at 1240.26 Where, though—or as ow dissenting colleague would say, where "in the holy name of plain text"—does that limiting criterion come from? As best we can tell, it is devised specifically to capture this case without risking a landslide. For reasons we have explained in detail, we believe that the CVRA is most properly (if imperfectly) read to apply only after the commencement of criminal proceedings. One thing of which we are certain: That interpretation *1221 is far superior to the dissent's good-for-this-train-only, once-the- investigation-has-matured reading—which, so far as we can tell, has no meaningful footing in the Act's text, history, or structure. Second, and far more importantly, regarding the consequences of our interpretation: It isn't lost on us that our decision leaves petitioner and others like her largely emptyhanded, and we sincerely regret that. Under ow reading, the CVRA will not prevent federal prosecutors from negotiating "secret" plea and non-prosecution agreements, without ever notifying or conferring with victims, provided that they do so before instituting criminal proceedings. We can only hope that in light of the protections provided by other statutes—and even more so in the wake of the public outcry over federal prosecutors' handling of the Epstein case—they will not do so. The question before us, though, isn't whether prosecutors should have consulted with petitioner (and other victims) before negotiating and executing Epstein's NPA. It seems obvious to us—and, indeed, the government has expressly conceded—that they should have. Our sole charge is to determine, on the facts before us, whether the CVRA obligated prosecutors to do so. We simply cannot say that it did. PETITION DENIED. TJOFLAT, Circuit Judge, concurring: I concur without reservation in Judge Newsom's opinion for the Court. I write separately because the model the dissent creates, in which a victim is permitted to sue the United States Attorney I for refusing to confer about a criminal matter prior to indictment, would, in operation, result in Judicial Branch interference with the Executive Branch's function of investigating and prosecuting federal crimes. Such a model raises serious questions about whether, by doing so, the judiciary would be violating the constitutional principle of separation of powers. 2 There can be no doubt that the Executive Branch has exclusive power over prosecutorial decisions. See?' United States Nhon, 418 U.S. 683, 693, 94 S. Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974) ("[T]he Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case ...."); Confiscation Cases, 74 U.S. 7 Wall. 454, 457, 19 L.Ed. 196 (1868) ("Public prosecutions, until they come before the court to which they are returnable, are within the exclusive direction of the district attorney ...."); P II Heckler v Chaney, 470 U.S. 821, 832, 105 S. Ct. 1649, 1656, 84 L.Ed.2d 714 (1985) ("Mhe decision of a prosecutor in the Executive Branch not to indict ... has long been regarded as [within] the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to 'take Care that the Laws be faithfully executed.' " (quoting U.S. Const., Art. II, § 3)). This Executive Branch authority obviously includes the decision to WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 EFTA00073508 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 investigate suspected criminal activity and whether to seek, or not seek, an indictment from the grand jury. These pre-charge decisions are the focus of this case. The dissent interprets the CVRA as authorizing a victim to bring a U.S. Attorney *1222 to court for refusing to confer with her about a matter under criminal investigation. To illustrate what would likely occur if we permitted the victim to do that—i.e., to envision how the dissent's interpretation of the CVRA would operate in practice—consider a simple case of mail fraud. Jane Doe is the victim of a fraudulent scheme. She finds out that the U.S. Attorney's Office is investigating the scheme and wants to discuss it with the attorney handling the investigation. The attorney refuses her request, so she sues him. Applying the dissent's interpretation, the district court finds that the attorney violated the CVRA by failing to confer with the victim. The court issues an injunction requiring the attorney to confer with Doe and to treat her fairly.3 Even if the court could craft such an injunction to comply with Rule 65 of the Federal Rules of Civil Procedure, which I doubt, the court would then be continually involved in the criminal investigation from the moment it issued the injunction. At any moment during the inevitable twists and turns of a pm-indictment criminal investigation, the victim could allege that the attorney had violated the injunction, and the attorney would be back in front of the district court to show cause why he should not be held in contempt. 4 But the event most likely to trigger such a hearing is the attorney's decision not to take the case to the grand jury, and that decision is completely within the Executive Branch's prosecutorial discretion. Therefore, applying the dissent's interpretation of the CVRA would clearly interfere with the Executive Branch's investigative and prosecutorial functions. Having explored the consequences of the dissent's interpretation of the CVRA, it is clear that such an interpretation cannot be accepted. The notion that a district court could have any input on a U.S. Attorney's investigation and decision whether to bring a case to the grand jury is entirely incompatible with the constitutional assignment to the Executive Branch of exclusive power over prosecutorial decisions. Additionally, it is hard to imagine a bigger intrusion on executive autonomy than the possibility that a U.S. Attorney will be held in contempt for violating an injunction if her investigation is not handled as the victim and district court see fit. Therefore, the dissent's interpretation raises serious constitutional *1223 issues by concluding that there are no temporal limitations on the CVRA rights to confer with, and to be treated fairly by, the U.S. Attorney. 5 In contrast, under Judge Newsom's interpretation, this problem does not exist because the CVRA only gives victim's post-charge rights. And, post-charge, the district court is not dragging the U.S. Attorney into court against his will and imposing a condition upon his prosecutorial discretion—the attorney is voluntarily before the court, and it is appropriate for the court, in its active role in the criminal proceedings, to examine the attorney's failure to comply with his CVRA obligations. In such circumstances, there is no concern about the separation of powers because the court is not meddling in the Executive Branch's decisions until executive officers have chosen to present themselves to the court. In sum, the dissent's interpretation creates serious constitutional concerns that Judge Newsom's interpretation does not. And it is "settled policy" that, when confronted with two potential interpretations of a statute, we should avoid the interpretation that "engenders constitutional issues if a reasonable alternative interpretation poses no constitutional question." See C a Gomez v. United States, 490 U.S. 858, 864, 109 S. Ct. 2237, 2241, 104 L.Ed.2d 923 (1989). Therefore, Judge Newsom's interpretation should be adopted. This conclusion is bolstered by the language of the statute, itself, which explicitly states that none of the CVRA's provisions should be read to diminish prosecutorial discretion: "Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." C m 18 U.S.C. § 3771(d)(6). Clearly, the author of the statute—Congress—recognized the need to avoid any construction that results in the problem that the dissent's approach creates. 6 For all of the reasons set forth in Judge Newsom's opinion, and because such an interpretation avoids raising serious constitutional questions, the CVRA is best understood as not applying until charges are commenced against a defendant. HULL, Circuit Judge, dissenting: This appeal presents legal questions of first impression in this Circuit regarding the Crime Victims' Rights Act ("CVRA"), *1224 18 U.S.C. § 3771, which grants a statutory "bill of rights" to crime victims. In my view, the Majority patently errs in holding, as a matter of law, that the crime victims WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 EFTA00073509 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 of Jeffrey Epstein and his co-conspirators had no statutory rights whatsoever under the CVRA. Instead, our Court should enforce the plain and unambiguous text of the CVRA and hold that the victims had two CVRA rights—the right to confer with the government's attorney and the right to be treated fairly—that were repeatedly violated by the U.S. Attorney's Office in the Southern District of Florida. I Here, the U.S. Attorney's Office (I) drafted a 53-page indictment against sex trafficker and child abuser Epstein and (2) repeatedly wrote his defense team that the government had proof beyond a reasonable doubt that he victimized more than 30 women as minors. Shockingly though, the Office then (1) conducted many days of extensive plea negotiations with Epstein's attorneys and secretly entered into a Non- Prosecution Agreement ("NPA"), granting Epstein federal immunity in return for his plea to two state prostitution- solicitation charges, (2) never conferred one minute with the victims about the NPA or told the victims that such an agreement was under consideration, (3) worked closely with Epstein's lawyers to keep the NPA's existence and terms hidden from the victims, (4) actively misrepresented to the victims that the criminal investigation continued when the NPA was already signed, and (5) never informed the victims about the NPA until after Epstein pled guilty in State Court and the secret sweetheart deal was done. Remarkably too, without notice and conferral with the victims, the NPA granted federal immunity not only to Epstein, but also to "any potential co-conspirator of Epstein, including but not limited to Sarah Kellen, Adrian Ross, Lesley Groff, or Nadia Marcinkova." It is only because the victims filed this lawsuit, and the District Court ordered the NPA be produced, that the victims and the public learned the truth about the plea negotiations and the NPA's grant of federal immunity to Epstein and his co-conspirators. So how does the Majority bail the U.S. Attorney's Office out of its egregious CVRA violations and reverse the District Court's ruling? The Majority holds that Epstein's crime victims had no CVRA rights at all because the plea negotiations with Epstein's defense counsel were conducted "pre-charge" and the Office never filed the indictment and commenced court proceedings. That is to say, the Majority crafts a bright-line, blanket restriction on the statute: the CVRA grants crime victims no rights whatsoever unless and until a formal indictment is filed in a court. See Maj. Op. at 1198. The Majority concludes "the CVRA was never triggered" at all, even though the U.S. Attorney's Office prepared a 53-page indictment against Epstein but later secretly entered into a plea deal, granting federal immunity to Epstein and his coconspirators. Id. According to the Majority, because the Office cleverly entered into a sweetheart plea deal with Epstein "pre-charge" and never filed the indictment, the victims never had any CVRA rights in the first place. Id. at 1198,1205-06.2 *1225 I dissent because the plain and unambiguous text of the CVRA does not include this post-indictment temporal restriction that the Majority adds to the statute. Although, as I discuss later, the two rights provisions at issue include other limiting principles, there is no textual basis for the bright-line, post-indictment only restriction the Majority adds to the statute. Rather, the Majority's contorted statutory interpretation materially revises the statute's plain text and guts victims' rights under the CVRA. Nothing, and I mean nothing, in the CVRA's plain text requires the Majority's result See for yourself. The CVRA grants "crime victims" these two unambiguous rights in subsection (a): (a) Rights of crime victims.—A crime victim has the following rights: (5) The reasonable right to confer with the attorney for the Government in the case. (8) The right to be treated with fairness and with respect for the victim's dignity and privacy. 18 U.S.C. § 377I(a)(5), (8). The text does not contain the Majority's post-indictment temporal restriction. Simply put, crime victims do not have to wait for the government to file a formal indictment and commence court proceedings before having these CVRA rights. In fact, the CVRA's venue provision in ti§ 3771(d) expressly provides that, "if no prosecution is underway," the victims can file suit to assert their subsection (a) rights "in the district court in the district in which the crime occurred." Mt § 3771(d)(1), (3). In filing this lawsuit back in 2008, WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 EFTA00073510 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 the petitioner crime victims did what the CVRA expressly authorized them to do. To be clear, nothing in the CVRA empowers crime victims to force a prosecutor to prosecute. See a id. § 3771(dX6). As the Concurring Opinion well points out, the Executive Branch has exclusive authority and absolute discretion over prosecutorial decisions and whether to seek indictment or not. Conc. Op. at 1221-22. But what the CVRA does do is grant victims a statutory right to have an opportunity to speak to the prosecutor before the prosecutor makes that decision. In f i § 3771(c), the CVRA even mandates that the U.S. Attorney's prosecutors, while "engaged in the ... investigation[ ] or prosecution of crime shall make their best efforts" to accord victims these statutory rights in subsection (a). Id. § 3771(c)(1). After conferral, the prosecutor has the exclusive authority and discretion whether to indict or not. Pre-charge, the Office spent days conferring and negotiating with Epstein's defense team, but had not a minute for the victims. Unlike the Majority, I agree with the Fifth Circuit that crime victims have a CVRA right to confer with the government attorney, even if a plea deal is struck before any formal indictment is filed. See 1 In re Dean, 527 F.3d 391, 394 (5th Cir. 2008). As the Fifth Circuit emphasized: "In passing the Act, Congress made the policy decision—which we are bound to enforce—that the victims have a right to inform the plea negotiations process by conferring with prosecutors before a plea agreement is reached." Id. at 395. What's worse is that the Majority concedes, as it must, that § 3771(a)(5)'s conferral right and [ t § 3771(a)(8)'s right to be treated with fairness have no temporal limitation on their face and that petitioners *1226 are "not without [their] own textual arguments." Maj. Op. at 1206, 1208, 1210. The Majority admits: "The interpretation of the CVRA that petitioner advances, and that the district court adopted, is not implausible; the CVRA could be read to apply pre- charge." Id. at 1205. Yet, the Majority refuses to enforce the Act as written by Congress and grafts onto the plain and unambiguous text a restriction Congress never enacted. The roadmap for my dissent follows. First, I recount more facts about the undisputed conduct of the U.S. Attorney's Office. This includes how initially the Office wrote the victims, and later Epstein's attorneys, that the victims had ongoing CVRA rights to confer and be treated fairly. Tellingly, it was not until the petitioner victims filed this lawsuit that the Office reversed course and took the stance that the victims never had any CVRA rights in the first place. Next, I examine the CVRA text and apply the relevant canons of statutory interpretation. Then, I show the flaws in the Majority's statutory analysis. In one breath, the Majority urges Congress to fill the gap left by (the Majority's reading of) the CVRA and in the next tells us why granting victims two CVRA rights "pre-charge" would be a bad idea. Given this is a plain-text case, the Majority curiously carries on at length about slippery slopes and bad policy implications that the Majority says counsel against enforcing any victim rights "pre-charge." Yet, since the Fifth Circuit's 2008 decision and the District Court's 2011 decision, there has been no flood of civil suits by victims, no evidence of victims' abuse of their CVRA rights, and no prosecutors' complaints about impairment of their prosecutorial discretion. The Majority also dresses up its flawed statutory analysis with rhetorical flourish, using language like "scandalous," "national disgrace," and "the sad details of this shameful story," while also expressing sincere empathy for the victims: "Despite our sympathy for Ms. Wild and others like her, who suffered unspeakable horror at Epstein's hands, only to be left in the dark—and, so it seems, affirmatively misled—by government lawyers, we find ourselves constrained to deny her petition." Maj. Op. at 1198, 1200. The Majority confesses that "[i]t isn't lost on us that our decision leaves petitioner and others like her largely emptyhanded" and "we sincerely regret that." Id. at 1221. In addition to ruminating in sincere regret and sympathy, we, as federal judges, should also enforce the plain text of the CVRA—which we are bound to do—and ensure that these crime victims have the CVRA rights that Congress has granted them. Next, I address the constitutional concerns about the CVRA raised in the Concurring Opinion, although that, so far, has not been the issue in this appeal. Lastly, I address the remedy and why, due to the U.S. Attorney's Office's egregious violations of the victims' rights, this Court should remand the case to the District Court for consideration of the victims' requested remedies. WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 19 EFTA00073511 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 I. PROSECUTORS ADVISE VICTIMS HAVE CVRA RIGHTS This case is not about the start or middle stages of a criminal investigation. Rather, as detailed below, this case is about (I) a completed investigation of federal sex-trafficking crimes against minor girls and (2) the U.S. Attorney's Office's repeated communications that it (a) had "proof beyond a reasonable doubt" that over 30 minor girls were victims of Epstein's criminal sexual conduct and (b) had "decided to proceed with [Epstein's] indictment." Let's start with the investigation and how the Office in 2006 wrote the victims that they did have CVRA rights pre-charge. *1227 A. 2005 — 2007 Criminal Investigation In 2005, the parents of a 14-year-old girl reported to the Palm Beach Police Department that Jeffrey Epstein sexually abused their daughter. This report began the investigation into the then 52-year-old billionaire Jeffrey Epstein—an investigation that ultimately revealed that Epstein assembled a network of underage girls whom he sexually abused at his mansion in Palm Beach, Florida, elsewhere in the United States, and overseas. In 2006, at the Palm Beach Police Department's request, the Federal Bureau of Investigation ("FBI") opened a federal investigation into Epstein's and his personal assistants' use of facilities of interstate commerce to induce girls between the ages of 14 and 17 to engage in illegal sexual activities. Thereafter, the U.S. Attorney's Office accepted the case for prosecution and assigned specific federal prosecutors to the case. The FBI established that Epstein used young female recruiters and paid employees to find and bring minor girls to him, as often as three times a day, for his own and others' sexual gratification. Epstein also directed other people to sexually abuse the minor girls, including his co-conspirator Nadia Marcinkova. This in-depth federal investigation proved that, between 2001 and 2007, Epstein sexually abused more than 30 minor girls, and multiple co-conspirators either procured the girls for Epstein's sexual gratification or participated in the sexual abuse themselves. The victims include the petitioners in this case, Jane Doe 1 and Jane Doe 2, who were 15 years old when first sexually abused by Epstein. B. Aug. 2006 Letter to Crime Victim about CVRA Rights Throughout the two-year investigation, once a victim of Epstein's sexual abuse was identified, the lead Assistant U.S. Attorney ("AUSA") assigned to the case, A. Marie Villafana, sent a letter telling the victim that she was protected by the CVRA and explaining her statutory rights under the CVRA. For example, in 2006 and before an indictment was drafted in 2007, the U.S. Attorney's Office told petitioner Jane Doe 2 in a letter that she had statutory rights "to confer with the attorney for the Government in the case," "to be treated with fairness," and to petition the District Court if her CVRA rights were being violated. See? 1 18 U.S.C. § 3771(a),? 1(d) (3). The Office's 2006 letter explained that the Department of Justice would make its "best efforts" to ensure Jane Doe 2's CVRA rights were protected. Later, in March 2007, the Office began sending similar letters to Epstein's other victims, informing them of their ongoing CVRA rights. This initial position of the U.S. Attorney's Office—that the petitioners had ongoing CVRA rights—is not surprising given that the CVRA was enacted to protect crime victims' rights and ensure their involvement in the criminal justice process. United States v. Moussaoui, 483 F.3d 220, 234 (4th Cir. 2007);? II Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1016 (9th Cir. 2006) ("The [CVRA] was enacted to make crime victims full participants in the criminal justice system."). II. MAY 2007: FEDERAL INDICTMENT PREPARED By May 2007, the U.S. Attorney's Office had completed an 82-page prosecution memo and a 53-page draft indictment against Epstein, charging him with numerous federal crimes of sex trafficking minor victims. The prosecutors were prepared to *1228 indict Epstein. For the victims, so far, so good. But what the victims didn't know is what was secretly going on behind the scenes. III. JAN. — SEPT. 2007: PROSECUTORS NEGOTIATE WITH EPSTEIN Meanwhile and unbeknownst to the victims, for over nine months in 2007 (from January to September), the U.S. Attorney's Office was discussing with Epstein's defense team WESTLAW © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 EFTA00073512 In re Wild, 955 F.3d 1196 (2020) 28 Fla. L. Weekly Fed. C 1020 the forthcoming federal criminal charges. During this time, Epstein's defense team made multiple presentations to the Office to try to convince them not to prosecute Epstein, maintaining he committed no federal crimes.; Those defense presentations were not successful. The record contains extensive communications showing that, as of August 2007, the Office's prosecutors were recommending and ready to proceed with the federal indictment of Epstein. In early September 2007, U.S. Attorney R. Alexander Acosta met with some of Epstein's defense team, along with the federal prosecutors assigned to Epstein's case and the Chief of the Child Exploitation and Obscenity Section of the Department of Justice's Criminal Division in Washington, D.C. Epstein's defense team again raised federalism-based arguments that were rejected. As U.S. Attorney Acosta explained, "[a]fter considering the arguments raised at the September 7th meeting, and after conferring with the FBI and with [the Chief of the Child Exploitation and Obscenity Section], our Office decided to proceed with the indictment." At that time, the State of Florida had already charged Epstein with one count of solicitation of prostitution. IV. NON-PROSECUTION AGREEMENT What happened next remains baffling, to put it mildly. During September 2007, Epstein's defense attorneys engaged in more intensive pre-indictment plea negotiations with the U.S. Attorney's Office. Although the record does not explain why, the Office then took the position that two types of plea agreements could apply to Epstein's federal crimes: (1) a plea agreement to federal charges; or (2) a non-prosecution agreement, whereby the Office would agree not to federally prosecute Epstein and his co-conspirators, in return for which Epstein would plead guilty to a mere two state prostitution-solicitation charges and agree to an 18-month sentence in the county