From: Sent: To: Subject: (USAFLS) < > Sunday, March 27, 2011 2:50 PM RE: Emailing: CVRA Omnibus Response.wpd .(USAFLS) Another point is that the non-prosecution agreement would not be subject to any judicial approval, absent a claim by one of the parties to the agreement that a breach had occurred. Unlike Dean, the government never contemplated any charge being filed in the district court, nor did it seek a dispensation from the court to limit the number of victims it would contact. In Dean, there was ultimately a charge and a plea agreement for the court to review. In our case, there was neither. ----Ori inal Messa e— From: ) Sent: Sunda , March 27, 2011 2:44 PM To: (USAFLS); . (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd I must really be clueless here, but why would we have to consult with them if no charges have been brought. That's the OLC opinion. That doesn't mean we couldn't consult with them as a courtesy, but we have no legal compulsion to do so under the CVRA because no charges were ever brought. United States Department of Justice Criminal Division. ellate Section tel: fax: ----Ori inal Message From: (USAFLS) [main° Sent: Sunda , March 27, 2011 2:06 PM To: (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd The remedy they seek is a vacatur of the non-prosecution agreement. Presumably, we would then have to consult with them pursuant to 18 U.S.C. 3771(a)(5). Cassell did agree that the district court had no authority to compel the government to prosecute Epstein. ----Ori inal Messa e-- From: ) Sent: Sunda , March 27, 2011 2:03 PM To: (USAFLS); . (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd 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) EFTA00206466

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 Sent: Sunda , March 27 2011 1:58 PM To: (USAFLS) Subject: RE: Emailing: CVRA Omnibus Response.wpd and M, 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 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. EFTA00206467