---Ori inal Mess e— From: Sent: Monde March 28, 2011 8:18 AM To: (USAFLS); (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd All, This is going to be a rou h week for me work-wise so here's a suggestion. If, as email says, the due date is 4/7, perhaps you can work up whatever you want me to look at this week and then I can make some comments as of next Monday, 4/4. If you don't think that will work or if you need comments earlier, I can try to work on it next weekend. I am just inundated right now and have an Eleventh Circuit argument on Friday, so I am going to be out of pocket much of this week. Let me know your thoughts. ••••••••••••••••••••••••••.•••••••••••• United States Department of Justice Criminal Division. ellate Section tel: fax: Ori inal Message From: (USAFLS) [main° Sent: Sunda , March 27, 2011 1:44 PM To: . (USAFLS). Subject: RE: Emailing: CVRA Omnibus Response.wpd I am working on our response to their material "facts," which really aren't facts at all. I should have these done by today. I will then move on to the legal argument. I was considering responding to each motion separately, to make it easier for the court. P.S. Our deadline is April 7, 2011. ----Ori inal Messa e-- From: . (USAFLS) Sent: Sunda , March 27, 2011 1:31 PM To: (USAFLS); Subject: Emailing: CVRA Omnibus Response.wpd Hi and MI Obviously, this is just a rough draft of an introduction. I have been side-tracked by research. I found a case where a prisoner tried to use EFTA00206433

the CVRA in a habeas/Rule 35 type claim. I think that is a good example of how the CVRA, as Cassell sees it, could be abused. Since every assault on a federal prisoner is a federal crime, federal defendants could demand meetings with AUSAs claiming that they were assaulted (whether or not the assaults actually occurred) and, even if the USAO decided to defer to administrative authorities, i.e., the Bureau of Prisons, according to Cassell, we would be forced to go meet with them. I also have found good language in several cases that suggest that the Petitioners' failure to prosecute the case will end up being a second reason to dismiss the petition. Cassell will, no doubt, try to pin the blame on us, but they had no contact with us for over a year while they were pursuing their civil claims against Epstein. In the meantime, Epstein finished serving his entire criminal sentence. And now they want to try to attack the "plea" agreement. There is good language about the need for finality in criminal proceedings that should help with that. Talk to you all on Monday. Thanks. The message is ready to be sent with the following file or link attachments: CVRA Omnibus Response.wpd Note: To protect against computer viruses, e-mail programs may prevent sending or receiving certain types of file attachments. Check your e-mail security settings to determine how attachments are handled. From: (USAFLS) < Sent: Monday, March 28, 2011 10:10 AM To: . (USAFLS); Cc: (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd I will be here tomorrow. The argument you suggest has a number of problems. First, there is a presumption in favor of judicial review of administrative action. McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 498 (1986). Second, since Congress establishes the subject matter jurisdiction of the lower federal courts, we would have to demonstrate that it intended section 3771(f) to be the exclusive remedy for a putative victim claiming a violation of the CVRA. There is nothing explicit in the text of section 3771 that supports that proposition. Moreover, arguing that an aggrieved person can only file an administrative complaint with the federal agency that allegedly deprived him or her of his rights under the CVRA is an argument that is likely to be viewed with much judicial skepticism. Section 3771(d)(3) expressly provides that the rights in section 3771(a) can be asserted in the criminal case, or in the district where the crime occurred if no prosecution is underway. We would have to argue that, where there is no prosecution underway, the only remedy is to file an administrative complaint with the DOJ. That conflicts with the language of section 3771(d)(3), which permits a putative victim to file a motion in the district where the crime occurred. I recognize the DOJ has a view on what that provision means, but that argument is not based upon the existence of an exclusive administrative remedy. Ori inal Messa e From: . (USAFLS) EFTA00206434

Sent: Monda March 28.2011 9:36 AM To: (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd Hi and -- Just read all of your emails from yesterday. -- I think that, having read more cases, and then re-read the Department's guidance, that our position should be that the petitioners are not entitled to file a civil cause of action, even for a declaratory judgment. The statute provides them with a remedy, which is a referral of DOJ attorneys for disciplinary sanctions, and specifies that "the Attorney General, or the designee of the Attorney General, shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the Attorney General by the complainant." (18 USC 3771(f)(2)(D)) "Where a statute expressly provides a particular remedy or remedies, a court must be chary of reading others into it." U.S. v. Aguirre-Gonzalez, 597 F.3d 46, 54 (1st Cir. 2010) (quoting TAMA v. Lewis, 444 U.S. 11, 19 (1979)). Why don't we get together tomorrow face-to-face and talk it through? I can come down to Miami. -- maybe we can steal you for 30 minutes just to bounce some ideas off of you? Assistant U.S. Attorne Fax Ori inal Messa e From: ) Sent: Monda March 28, 2011 8:18 AM To: (USAFLS); . (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd All, This is going to becalh week for me work-wise so here's a suggestion. If, as email says, the due date is 4/7, perhaps you can work up whatever you want me to look at this week and then I can make some comments as of next Monday, 4/4. If you don't think that will work or if you need comments earlier, I can try to work on it next weekend. I am just inundated right now and have an Eleventh Circuit argument on Friday, so I am going to be out of pocket much of this week. Let me know your thoughts. United States Department of Justice Criminal Division. Appellate Section tel: fax: Ori inal Message From: (USAFLS) (mailto Sent: Sunday. March 27, 2011 1:44 PM EFTA00206435