A deeply divided 11th Circuit acknowledged prosecutors misled victims of billionaire Jeffrey Epstein when they struck a plea deal granting him immunity from prosecution on sex-trafficking charges, but a majority held victims cannot challenge the deal now.
ATLANTA (CN) — In a mammoth ruling Thursday that included two scathing dissents, the en banc 11th Circuit rejected a victim’s challenge to a plea deal struck over a decade ago which shielded investment tycoon Jeffrey Epstein and his co-conspirators from criminal liability for running an underage sex ring.
In a 6-4 decision, the Atlanta-based appeals court rejected arguments that federal prosecutors violated Courtney Wild’s rights under the Crime Victims’ Rights Act, or CVRA, by keeping her in the dark about Epstein’s non-prosecution deal in Florida.
Wild, who is one of more than 30 women victimized by Epstein, claimed that federal prosecutors secretly negotiated a plea deal with Epstein in 2007. She alleges that she was denied the right to confer with and be treated fairly by the government.
According to a dissenting opinion in the case, Wild was just 15 years old when Epstein first sexually abused her.
In a 53-page majority opinion penned by Donald Trump-appointed U.S. Circuit Judge Kevin Newsom, the judges expressed “the profoundest sympathy” for Wild and the other victims “who suffered unspeakable horror at Epstein’s hands, only to be left in the dark–and it seems, affirmatively misled–by government attorneys.”
But the majority found themselves constrained by the law to deny Wild’s petition anyway. The court ruled that since the government never filed charges against Epstein, there was no preexisting proceeding in which Wild could have moved for relief under the CVRA. According to the ruling, Wild is not entitled to seek enforcement of her CVRA rights in a freestanding civil action.
Attorneys for Wild called the ruling “disturbing” in a statement Thursday and said they intend to seek review of the decision in the U.S. Supreme Court.
“It allows wealthy and powerful defendants (like Epstein) to orchestrate special deals without crime victims having any involvement by negotiating with prosecutors before charges are ever filed. That is not something most defendants can do,” attorneys Paul Cassell and Brad Edwards said.
After a two-year investigation into Epstein’s conduct by the FBI and the Palm Beach Police Department, Epstein’s defense team began negotiations with prosecutors in an effort to avoid indictment in January 2007.
Prosecutors sent Epstein’s victims letters advising them of their rights in March 2007. But in June 2008, Epstein pleaded guilty to two state solicitation of prostitution charges as part of a plea deal which granted him and his co-conspirators immunity from federal charges.
He served only 13 months of his 18-month jail sentence, much of which he spent outside his cell as part of a work-release program.
Federal prosecutors did not meet with Wild or the other victims about the plea deal.
“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,” Newsom wrote Thursday.
Newsom opined that the government’s efforts “appear to have graduated from passive nondisclosure to (or at least close to) active misrepresentation.”
Wild did not learn of the agreement’s existence until July 2008, after Epstein had already pleaded guilty. She sued to overturn the deal that year.
Her lawsuit was dismissed in September 2019 after a Florida federal judge ruled that the request to nullify the deal was rendered moot by Epstein’s apparent suicide in prison following his indictment on federal sex-trafficking charges.
The Atlanta-based appeals court agreed to rehear the case en banc in August, tossing out its previous panel ruling that the law does not protect victims before formal charges are filed. The full court heard arguments in the case in December.
Thursday’s ruling finds that the CVRA does not authorize Wild to file a freestanding civil lawsuit seeking judicial enforcement of her rights under the Act in the absence of an underlying proceeding. No criminal case was pending when Wild filed her petition.
The majority also found that judicial enforcement of CVRA rights in the pre-charge phase “would risk unduly impairing prosecutorial discretion.”
Allowing victims to request an injunction ordering prosecutors to confer with them and treat them fairly before charges have been brought in a criminal proceeding would be a significant intrusion into the conduct of federal prosecutors, the majority ruled.
“Freed from any line limiting judicial enforcement to the post-charge phases of a prosecution, courts would be empowered to issue injunctions requiring consultation with victims (to name just a few examples) before law-enforcement raids, warrant applications, arrests, witness interviews, lineups, and interrogations,” Newsom wrote.
In a separate concurrence, Senior U.S. Circuit Judge Gerald Tjoflat wrote that the “operational difficulties that accompany a pre-charge civil CVRA suit open the door to rank unfairness.”
But a dissenting opinion written by U.S. Circuit Judge Elizabeth Branch states that the CVRA “alleviates any concern that pre-charge enforcement would unduly impair prosecutorial discretion” because the law only grants a “reasonable” conferral right to victims.
Branch, a Trump appointee, pointed out that the conferral right is only with a prosecutor, not with police or investigators.
“The majority’s and Judge Tjoflat’s concurring opinion’s parade of horribles about mini-trials to identify crime victims and conferral “pre-charge” are red herrings,” Branch wrote.
The dissent also points out that the Fifth Circuit has previously found that victims have a right to confer with prosecutors even before prosecution is underway.
In a separate 29-page dissent, Senior U.S. Circuit Judge Frank Hull, a Bill Clinton appointee, pointed out that U.S. Senator Dianne Feinstein and former Senators Jon Kyl and Orrin Hatch filed an amicus brief urging the 11th Circuit to find that the CVRA grants crime victims pre-charge rights to confer with prosecutors and the right to file a motion for relief in the district court if no prosecution is underway. Feinstein and Kyl drafted the law and Hatch co-sponsored it.
Warning that the majority’s opinion has “far-reaching” consequences in the 11th Circuit and “eviscerates” the CVRA, Hull wrote that the pre-charge period in criminal proceedings has become “critical” in cases involving white-collar crime.
“Defense attorneys are hired to represent potential defendants pre-charge to negotiate and extract the best plea deal in advance of, or to forestall, any indictment. The majority’s ruling— limiting judicial enforcement of CVRA violations to a formal post-charge period— leaves federal prosecutors free to engage in the secret plea deals and deception pre-charge that resulted in the travesty here,” Hull wrote.
Branch was joined in her dissent by Hull and U.S. Circuit Judges Beverly Martin and Jill Pryor.
Newsom was joined in the majority by Tjoflat and U.S. Circuit Judges Charles Wilson, William Pryor, Barbara Lagoa, Andrew Brasher and Robert Luck.