Assistant U.S. Attorne Fax ----Ori inal Messa e From: ) Sent: Monda , March 28, 2011 9:44 AM To: . (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd Hey - Aguirre-Gonzalez that was my case!! United States Department of Justice Criminal Division. Appellate Section tel: fax: Ori inal Messa e From: . (USAFLS) [mailto: Sent: Monda March 28.2011 9:36 AM To: (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd Hi MI 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 EFTA00206454

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, Appellate Section tel: fax: Ori inal Message From: (USAFLS) (mailto 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. F Original Message rom: . (USAFLS) Sent: Sunda March 27, 2011 1:31 PM To: (USAFLS); Subject: Emailing: CVRA Omnibus Response.wpd Hi and 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 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. EFTA00206455

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: Jackie Perczek <[email protected]> Sent: Friday, April 01, 2011 4:58 PM To: . (USAFLS); Cc: Roy BLACK Subject: Doe v. USAO Attachments: WordPerfect 6.1.WPD Good afternoon and Ann (USAFLS) Consistent with the conversation Roy and I had with this week, attached is a working draft of the motion to intervene and the objections we intend to lodge to the recent filings of Doe 1 and Doe 2 concerning discovery and disclosure of plea negotiation letters and emails. Please let us know your position. Have a good weekend, Jackie From: (USAFLS) < Sent: Monday, March 28, 2011 10:45 AM To: . (USAFLS); (USAFLS) Cc: (USAFLS); (USAFLS) Subject: Conversation with Roy Black - Redacted Materials Colleagues, I just spoke with Roy Black regarding the U.S. Attorney's Correspondence materials the victims seek to have unredacted. I told him we advised Cassell we had no independent objection to the public filing of the EFTA00206456

correspondence. Black told me they intended to file a notice today advising the court that Epstein intended to object, and would be filing a detailed legal memo by next Monday. Black said they would send us a courtesy copy by the end of this week. Black will assert three grounds: (1) some of the correspondence contains material covered by Fed.R.Crim.P. 6(e); (2) the correspondence included plea negotiations; and (3) victims' counsel could not be trusted to keep material from the press. Black advised he believed the five-page letter had been leaked to the Daily Beast by the victims' lawyers. Black said he understood the DOJ had policies about public disclosure, but he wanted to know if the government would join in their motion. From: Sent: Sunday, March 27, 2011 2:03 PM To: (USAFLS); Subject: RE: Emailing: CVRA Omnibus Response.wpd > . (USAFLS) The "no prosecution is underway" language has a specific meaning addressed in the OLC opinion I sent earlier. It does not mean that it creates a forum for victims to bring a non-monetary cause of action when (as here) that cause of action is divorced from a criminal case. (What relief is being sought in this case, by the way? If it's a declaratory judgment that we bring charges, then he's barred by prosecutorial discretion - we're the govt, not him) The CVRA does not create any independent causes of action - the money damages clause was belts and suspenders, to make clear that sovereign immunity wasn't being waived. If a victim believes their rights were violated, they can, in theory, bring a cause of action under some other federal law, cf. 42 USC 1983, but the CVRA itself doesn't create a recoverable cause of action. United States Department of Justice Criminal Division. Appellate Section tel: fax: Ori inal Message From: (USAFLS) (mailto To: Sent: Sunda . March 27. 2011 1:58 PM . (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd and 18 U.S.C. 3771(d)(6) provides there is no cause of action for damages. From a civil attorney's viewpoint, damages means money damages. Therefore, a victim cannot sue the United States Government, or an EFTA00206457

official of the U.S. Government, for money damages, based on a claim that their rights under the CVRA were violated. Not having a cause of action for damages does not mean you cannot assert that your CVRA rights were violated, and you are entitled to non-monetary relief. Also, 18 U.S.C. 3771(d)(3) provides that, in cases where a criminal case has not been filed ("if no prosecution is underway"), the victim can file a motion for relief in the district court in the district in which the crime occurred. This plainly suggests that Congress intended a putative victim to have a forum where he could address his claim that his/her CVRA rights have been violated by the Government. Ori inal Messa e From: ) Sent: Sunda . March 27. 2011 1:49 PM To: . (USAFLS); (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd PS - Real quick, but the CVRA says it doesn't create a cause of action "for damages." My instinct is that we should emphasize the prosecutorial discretion angle over the "no cause of action" language of the CVRA, but I will do a little more digging. United States Department of Justice Criminal Division. Appellate Section tel: fax: Ori inal Message From: [mailto: Sent: Sunda . March 27. 2011 1:31 PM To: (USAFLS); Subject: Emailing: CVRA Omnibus Response.wpd USAFLS «CVRA Omnibus Response.wpd>> Hi and 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 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. EFTA00206458

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: Sunday, March 27, 2011 1:58 PM To: ); Subject: RE: Emailing: CVRA Omnibus Response.wpd and . (USAFLS) 18 U.S.C. 3771(d)(6) provides there is no cause of action for damages. From a civil attorneys viewpoint, damages means money damages. Therefore, a victim cannot sue the United States Government, or an official of the U.S. Government, for money damages, based on a claim that their rights under the CVRA were violated. Not having a cause of action for damages does not mean you cannot assert that your CVRA rights were violated, and you are entitled to non-monetary relief. Also, 18 U.S.C. 3771(d)(3) provides that, in cases where a criminal case has not been filed ("if no prosecution is underway"), the victim can file a motion for relief in the district court in the district in which the crime occurred. This plainly suggests that Congress intended a putative victim to have a forum where he could address his claim that his/her CVRA rights have been violated by the Government. Ori inal Messa e From: ) Sent: Sunda . March 27. 2011 1:49 PM To: . (USAFLS); (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd PS - Real quick, but the CVRA says it doesn't create a cause of action "for damages." My instinct is that we should emphasize the prosecutorial discretion angle over the "no cause of action" language of the CVRA, but I will do a little more digging. EFTA00206459