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. •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••~M• United States Department of Justice Criminal Division, Appellate Section tel: fax: ----Ori inal Messa e— From: (USAFLS [mailto: Sent: Sunda , March 27, 2011 1:31 PM To: (USAFLS); Subject: Emailing: CVRA Omnibus Response.wpd EFTA00206470

«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. 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 2:06 PM To: ); Subject: RE: Emailing: CVRA Omnibus Response.wpd . (USAFLS) 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) EFTA00206471

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 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 EFTA00206472