and jay how co counsel also present in the courtroom is brittany henderson his co counsel and petitioner in this case ms courtney while as your honor mentioned this case is we think unique in the history of american law in two thousand and four congress passed the crime victims rights act a comprehensive statute to make sure that victims were treated fairly in the criminal justice process and not kept in the dark about their criminal case and yet for several years federal prosecutors in this district did exactly what congress had forbid as the district court has found as findings of fact the government concealed a non prosecution agreement and misled the victims into thinking that federal prosecution was still a possibility can i ask you ma in my mind is a threshold question about whether the statute applies indictment yes what's the best sort of textural or statutory hook for applying pre and i meant you know if you look at the list of rights some of them sort of obviously apply in the context of an ongoing prosecution some are some more ambiguous some are so broadly worded that they might apply anywhere but what's the best actual hope for applying it pretty indictment and if i could just preface my comments by pointing out obviously we have argued in our brief that that issue is not before the court the judgment below rests on non married grounds that there was no jurisdiction the court never reached the merits and what you are now asking is a question that goes to the merits of the we have to raise that we have to consider that boy well as we point out in our brief the question would be one of statutory standing not constitutions can all be i suggest because there's nothing a district court could  you follow me i follow the question but i think that's not good the separation of powers doctored would prevent the court from doing that so we disagree with that premise and then you can wire that therefore since there's   on the on the attorney privilege doctor and writer period yes we raised the question whether we had jurisdiction to entertain intellect or appeal to you nobody nobody nowhere no not in the government's motions not in their responses not in anything in this case so far as anybody raised the question of whether or not the right is redress  thousand notwithstanding the separation of powers doctrine which prevents federal judges from intreated trooping into the executive branch function which is what's going on  here with all respect your honor that i think it's a much narrower question that's in front of the court the only question in front of this court right now is whether the district court was correct in deciding that the case had become moot questions that are being raised go to the merits of ms wild claim questions that were resolved in her favor in front of the district court in two thousand and thirteen let's suppose we say it's not but we've got to then you send it back look up front the standing if you say it's not moot all you do is send the case back to the district court i would we send the case back to the district court with instructions that you can't do and if they district judge you would send it out because of separation of powers about what you would do is you would say that the district court erred in finding this case to be moot and therefore proceeding should continue now the issues you're raising go to the merits of this case the government raise no cross appeal all the issues that we have which we this case came out of the subject to go florida correct there's nothing and i thought i speak for myself a district judge could not enter an injunction under this statute and provide a remedy for everything that a victim is a title to under the statute for a indictment without intruding on the executive branch functions we respectfully disagree with that position in the district court in two thousand and thirteen rejected that position as well the just record to ensure that ms wilde and other similarly situated victims have their rights let me give you a simple illustration suppose the government was not sending out notices that it was obligated to do it doesn't intrude on prosecutorial discretion for a cour think that's the wrong way of that is what would bring the court into the executive branch functions no i think what you would be seeing in that situation is simply the court following the law the law that congress passed which requires  records and courts of appeals for that matter to enforce crime victims rights ok so so if i could just rewind the tape a little bit to what's the best textual hook for the notion that this applies pretty indictment  this argument you need to assume that we think that the brings up any prowlers whether the final judgment brings up everything all right we're going to ask the merits questions we understand your position yes i had to follow a separate list just assume we're proceeding on the up some of these underlying questions and the reason i ask is that i actually thought that the best textual hook was probably  agencies that do these sorts of things but it doesn't say when the right sort of attach and then i worry about the practical implications of this list of rights applying pretty indictment i mean like is your position that police officers the f b i would need to consult with victims before they seek a warrant before they conduct an interrogation why i mean those are detection investigation functions right so what you have to do is look at the specific facts of the case and recall that in this particular case the case had mature much beyond the sort of clinton area stages that you're talking about and at that point federal prosecutors were negotiating with a vast defense team from epstein and what the district judge concluded in this particular case where there were ongoing negotiations and indeed a formal agreement that was being reached to resolve criminal charges at that point a conferral obligation existed and let me make clear there's one other court of appeals that's had addressed this question the th circuit in in re dean and the th circuit a decision not cited in the government's brief reach exactly the same conclusion that look there may be boundary line questions as to how far this extends but surely at some point when prosecutors are negotiating with defense attorneys and signing agreements at that point at least a can for all right exists and again that that's an issue that the district court looked at carefully wrote an extensive opinion on this it's not cited in the government's brief so we haven't had a chance to respond to whatever point they may want to make in response to that and again you've mentioned see one how about subsection d three the to the non prosecution the great correct all right implicit in that is that is that the government should have sent the case to the grand jury we disagree with that do x y z s and the victims disagree with that that's the end of the matter under the crime victims rights act the case is closed and over at that point and least of all where but there is no there's no case i mean could they get could they go to court  seek relief not into the crime victims rights act for that no no no because the prosecutors had not consulted with them before deciding not to go to the grand jury so in this it depends on the fact that hypothetical right i said would you have a claim it would depend on the facts of the case the facts of the case are they are not going to prosecute the case not going to send of the grand jury and the victims were not notified the victims that filed a lawsuit because they were not notified case could still go to the grand jury they're not notified and they want an injunction ok and tell me what the injunction would look like well we wouldn't be seeking injunction because that is not something that the crime victims rights act forbids but what are some relief before the district court right what do they ask the district court to do so when we ask the district court to do in this case i don't know let's stick with the hypothetical case what would they ask the district court to do and that case where the prosecutors are probably not going to send it to the grand jury the victims get wind of that and they file suit well needs to ensure that the victims receive their rights under the pose of suppose the government doesn't do what the judge says they should do that what well that would be is raise a very interesting question at that what they would f motion for show cause why the government prosecutors should not be held in contempt that would be one potential remedy and i think that would be a logical one would that there would certainly be one remote u s but i don't think it would be the st one that if the court the court issued a show cause order then to have a hearing isn't the court now getting involved in the prosecutorial function overseeing the u s attorney's offices functioning in this case it's not overseeing the charging decision what it is overseeing is the enforcement of a can grant or sped up but that they're in there overseeing the prosecutors interaction with the victims  are then the right have been insured and have been protected would that be correct that's correct all right so you really have a narrow client here throughout this case that all you wanted was notice and an opportunity to confer after the can for all right then the government can do whatever it wants to do exactly so you wouldn't be seeking to enjoin anybody from doing anything all you want is the government to be required as provided in the statue to confirm or the victim before whatever they do charge don't charge do nothing go to the grand jury not go to the grand jury you're not in to any of that all you want is recognition of the right to have notice to the victim and a can for all right is that the narrow claim in your case that's exactly ok runner and that's exactly what judge merit ruled in two thousand and thirteen he said look i understand that under separation of powers courts cannot make sense and also where cabin by the facts of this case this was way down the road and further we have a fact that i don't think the government i think it's good the government the way they wrote their brief they do not deny so i think this case can be really narrow here i don't know what the interest this r now because we've got a case here where the government agrees does not dispute judge maher's finding as a matter of law as a matter of undisputed fact they can see old and misled that that is also two very cabin ing limiting factors in this case i agree with any ruling about whether there was a come for all right necessarily is limited to that unusual case where we have findings of fact of deliberate conceal laid down the road we have concealment and so you're saying those are the facts here and if you could now maybe you want to go back to the statute of the conferral right now in that context that's all you're saying it was a right to that was violated here that's right and if i can add one additional fact the government sent a letter to ms wild the one that you're making there which is this is a very unusual fact circumstance we're not asking for some broad ruling that in every case you know anything that the government does requires conferral we're simply asking that in this particular case where prosecutors were negotiating and in fact executing an agreement with defense attorneys that in that circumstance the crime victims rights act gives the victims are right and we have a concession here that they were concealing it and now i concealing that they were doing it they misled i'm sa unique procedural posture in the sense that it's that it is sort of outside the realm of an existing prosecution and so there is this secondary in my mind sort of preliminary question about whether there is a cause of action so to speak the statute speaks in terms of a motion which sort of sounds like sort of sounds like something filed in an existing piece of litigation and i think i've got this right that you filed in fact a pleading called a motion but it kicked off like a new case and was given a new civil action number and stuff like that is that the way it kind of it's exactly right judge said as a matter of administrative convenience he was docketing it in a particular way of course you know substance should triumph over procedure here should be you know we put it different case caption or different style for the pleading we would be happy to do the no no i guess my question is if the statute talks in terms of motion and at least in that respect sort of there is no cause of action for damages provision right and then there are the statute it sells itself speaks in terms of motion is that some indication that the statute doesn't provide you like a civil action well it's certainly provides remedies such as reopening a plea you'll notice the provision in the crime victims rights act that allows fictitious to reopen a plea in certain situations and so this is essentially the functional equivalent to a non prosecution setting and it's important to remember that we have two other claims in addition to a confer all right we have a claim that the government violated the right to be treated with fairness and that the government failed to provide accurate  timely notice of the june th two thousand and eight hearing judge merit has only reached the st of the three questions those other two questions those other two rights violations have not been addressed you'll notice that the government's brief even though we raise that very directly in our petition does not respond to that so i think that a minimum we have an uncontested argument here the judge merit failed to reach two important claims presented by ms while and at a minimum the case should be remanded so that  said you clearly violated the come from within that is of the violations ok i think the finding for example the issue of whether a motion should have been filed there could have been perhaps motions filed on the june th two thousand and eight hearing that was a court proceeding that was moving forward again the government was giving misleading notices at that time and because judge merit hasn't reached that issue were unable to present you know additional arguments and additional remedies that might flow from all that he said it's all one in the same but it that doesn't make any sense when you're claiming that there is not only a violation of the right to confer about a non prosecution agreement but failure to give accurate notice about a court hearing that's a different kind of right one that i think might  cabin some of the issues that you're thinking about judge newsome but again all we're asking for here is for he remained back to the district court to address some of these issues and i would again point out we advance that argument in our petition the government had a chance to contest that or respond and as with many things in this case rather than giving a direct statement about what was going on the government simply remain silent so i i think you should ask the government directly what about those other two rights why didn't you respond to that in your brief shouldn't one particular remedy remember he warded no remedy but one remedy would be rescission of the immunity provisions in the non prosecution agreement recall that the judgment in front of you says that the district court had no jurisdiction to reach that issue because the proper parties were in the fort and yet rule nineteen of the federal rules of civil procedure which the government agreed were the political in the district court that just recorded repeatedly applied the civil rules throughout this case that rule rule nineteen says quote the court must order that the person who presence is necessary to be made a party must order that is not a question of discretion by the district court that is a binding obligation and we should have been given let's say forty five days to serve any coconspirators that might have been necessary does that does the must there mean if the parties have sought to join an absent rd person or that the district court must to a sponsor do it he must sue a spontaneous drek the parties to the case to join the parties the government i think is using the issue if you look at we've cited a th circuit in a circuit case there's no controlling th circuit case on point but both the th circuit and th circuit have looked at that very language and will nineteen and said what that means is the district court shouldn't dismiss the case but  merits or allowing someone to try to join the party and getting to the merits of the case the district court is obligated you know as a general rule of a procedure to try to reach the merits of the decision of race mainly i argued joined but i had illegal because of violating the victim's rights doesn't mean they can't confer and then enter into the same agreement but if they were never parties to the agreement to begin with why do they have to be from pages thirty two to three hundred and sixty five pages a briefing in our petition and i mean the problem is the government says not a word about that in response so that's i'm looking forward to saving time for rebuttal because for the st time if you ask that question the government will hear their the government notice of some of us going to ask them about but why do you even have to be a party to have it set aside assuming the court has authority to set aside it and that would be a remedy yes and then decided the dispute between ms wild and the prosecutors those parties were in front of it and then the other argument we've made that the government hasn't responded to which i think is implicit in your question these coconspirators were incidental beneficiaries of some contract confer with the government up there so as i think is not fair to say they didn't respond to it they have a response is it's already happened in another jurisdiction so one of the problems on the new york issue is you've referred to a footnote in their brief but there are no findings of fact there's no factual record on anything that happened in new york the government had nine weeks where they could have provided information to judge mera if they thought the new york proceedings were relevant we haven't had again a chance to respond to that the anything about what sort of conferral there would been it would have been and again if the court's going to dispose of this case based on what kinds of conferral may or may not happen it's the government's obligation to make a record on that there's no information we have very significant information that we would like to present to the court on this point but we realize we're in front of a court of appeals and you take the case as you find if there are no findings about any conferral that the government may or may not have with ms while what i'd like to do since i'm is to reserve the balance of my time for summon them the com or the court itself sav so they're going to be before the court are they not well we wouldn't ask for an order so that we summon them to court we would ask that we be given an opportunity to serve them with all right but the point of the matter is if they don't then they're going to be record exactly i'll make one observation st they obtained no and forcible rights you agree under the not prosecution agreement agree not not not because they can't be court is going to bring these i don't dotted coconspirators into this setting and let's let's say this is before the not to prosecute agreement power of contempt to bring people before the u s attorney's office and get them in there and they might be indicted i can't think of anything worse in terms of the separation of powers  yes because we would be asking for much narrower release than what your discomfort and that's yeah but once the courts it was the old saw about once the camel has its nose in the tent the whole camel gets in and  court issues that injunction it's in a forcible by its contempt power and the party in whose favor the injunction is issued if it's not satisfied the with what the  whether the statute reaches the sort of thing on these particular facts which i think is judge well let's just let's just talk hypothetically you've got a case for free indictment no one that no grand jury p and you haven't been advised victims in a case then that before the court there are unindicted coconspirators out there potentially and you want an order bringing them in before the court is an opportunity for us to serve the coconspirators so that they could present arguments to the district court if they so chose i understand that but the court has got to be very careful about the criminal liability potential of those coconspirators whether they're going to be bound if they don't show up correct ok so they better show up on the otherwise the court is really overreaching well they would have the opportunity decide whether they want to present arguments operated or whether they're going to show up they don't show up and they become potentially labral and subway right so they may elect to present arguments to the court that's what you jeffrey epstein did he elected to intervene in the case and so we were simply asking for an opportunity to serve the coconspirators so that they could present arguments if they so chose and again the only order that the court would enter would be one directing the government to comply with its c v r a obligations i'm sure the government will confirm that they don't need a contempt citation or anything if this court or the district court were to instruct them that they had certain obligations i'm sure that they would agree that they would follow those obligations if i could reserve the balance of my time will you have the full twenty  may please the court my name is jill steinberg and i'm an assistant united states attorney for the northern district of georgia and i represent the united states in this matter before i address the legal arguments presented by the petitioner i would like to give the court some brief context in of the government's position as the court well knows in july two million one thousand the u s attorney's office and other district of new york indicted jeffrey epstein for a sex trafficking conspiracy for events that occurred in new york and in florida he was also charged with one substantive count of sex trafficking arguably this prosecution came too late and ended too soon one substantive cap hit must have been a new york offense because you couldn't have gotten jurisdiction over the florida was it a new york  and he was in fact charged substantively with offense in new york but at the underlying understand the conspiracy is it's got new york and florida but the subs count was a new york transaction that's true but they could have charged him the court is not the issue of whether or not the non prosecution agreement was a good idea or a bad idea certainly twelve years later i think we all have opinions on that and the case is not about whether or not the southern district of florida had a right to make the decision that they made and i think we all agree that they did the issue is whether or not the office was fully transparent with ms wild about what it is that was going on there specter non prosecution agreement and they made a mistake in causing her to believe that the case was ongoing when in fact the non prosecution agreement had been signed the government should have communicated in a straightforward and transparent way with ms wilde and for that we are genuinely sorry you agree th was not a comparable prior to this right and i think i'll agree you actually not only didn't honor her right you also misled her you call it not transparent i would say it was affirmative misrepresentation i don't think you really dispute that it is definitely in the record that the line prosecutor intentionally did not disclose the existence of the non pro agreement for the reasons that she described and so i hesitate to use certain words because they are pejorative as to that person she explained what her intentions were and even if we think now in hindsight that wasn't a good idea that's the only reason why i would adopt that particular word but it's not that we disagree that there was not a disclosure of the nonprofits so you agree as a factual matter that if the c v or a applies pre indictment you violated it yes and so your legal position is as a threshold matter it never applies pre indictment it can not apply by definition of law in the n p a context correct if there's not a charging document so there as theoretical there could be a complaint instead of indict when you look at the statute each of the rights talk about there being the existence of a proceeding and even the definition of a victim is based on the existence of a federal offense and only by looking at what that offense is can  determine who is directly or well injured sort of yes and no i mean unless i said to mr cosell you look at that list of rights some of them do sound like they arise in the eggs in the context of this existing proceeding the conferral right frankly is pretty generic and then is he talked about c one and then we never let him really get to the three but i know where he was going on day three in the event a prosecution has not yet been instituted or some such so what you do with that what does that mean well with respect to the conferral it talks about conferring with the attorney for the government in the case and so there are two parts of that which are indicative of there actually being a charging document obviously as this court knows there are investigations that go on for a period of time without there being an assigned attorney and so certainly the existence of attorney presupposes a certain level of maturity to the case and also talks about the word the case which is sort of indicative of there being a matter in which a court is has some authority over there also other parts of the statute that talk about just attending proceedings having notice of proceeding can textually is talking about the existence of a criminal action and for that reason there is one component of it the issue of fairness that does not have any kind of attachment to a particular proceeding but looking at it in the larger context it certainly appears as if the statute is presupposing the existence of a criminal and then aren't so talking about see one of the three of the see was detection c one in the event no prosecution is instituted d three so with respect to see one the what that provision is talking about is the individuals who are charged with enforcing the c v r air rights so that means it might be in a us a in might be an agent it might be someone else but anybody who in the course of dealing with a victim that person might be charged with enforcing or ensuring that those rights are met so that's with respect to the st provision with respect to the nd provision it's not necessarily that the case has not been charged or a case hasn't existed it could just as well mean that the case has been closed and certainly one of the things that the statute does provide is an opportunity for victims under certain circumstances to make a motion before the court to reopen a plea or sentencing and so it might be that that's what that is anticipating is that there's already been a plea in a sentencing there's been a judgment entered and the case is closed i've got to go back to do three because prosecution is in the district court in the district in which the crime occurred why would that not get pre charge that language no prosecution is under way how could you read that other than there is no charge indictment no charging document yet it's certainly susceptible to that reading but it's also susceptible to a reading of the cases been closed it's been charged there's been a sentencing and the victim believes that she's been deprived of her rights so she brings a motion in effect to reopen the case so that's another way to view it that would be like this case in p s a she could bring a motion then so are no prosecutions why you said the case is closed the case is closed here as in p s a well there was never a criminal case there so that you're saying only if it goes to indictment and whatever comes after indictment then the thing is closed then that's what no longer under way means it only means sort of no longer in the way on the back and not no longer not under way on the front end in the larger context of the statute i think it's more likely to mean that than it is to mean what it is that petitioners are going which is the nonexistence of a criminal proceeding when you look at the list of rights and then you look at the list of remedies all of that surrounds and or presupposes existence of a proceeding in which a petitioner would make a motion and get an expedited ruling from the court to the criminal proceedings could move forward let me ask you this you know i think i think everybody is wise to heed judge holes admonition that we want to talk about the merits but i do i guess just have a question about the procedural posture about the the absence of what mr casella is called across appeal so there are you know there's there's a ruling in two thousand and eleven this thing goes back so far two thousand and eleven that was adverse to you two thousand and thirteen it was adverse to you could you should you have sought some sort of immediate relief from us would that have been a one thousand two hundred and ninety one collateral order do you have under the statute how might you have put those rulings before us i think it would have been difficult to do that assuming there was a final order or some other authority generically the fact is that mr case i'll point out in his brief interestingly he's indicates that our lack of cross appeals constitutes a waiver but at the same time this brief he says we don't have a right to appeal it's a little bit awkward but if you look at the statute it gives the government an opportunity to file for a petition for writ of mandamus but only if it's standing in the shoes if in effect of the victim and so there isn't an opportunity for the government to appeal an adverse decision unless frankly it's also adverse to the victim and so the statute does not give us an opportunity to do because i guess ordinarily as judge hole says you know our sort of pellet practice is that the winner can defend in effect the judgment on any grounds supported by the record but i guess it's difficult to figure out whether you're actually defending the judgment here because you've got you've got dismissal aspects of this you've got denial aspects of this some of your arguments would require a denial rather than a dismissal so it's just sort of hard to figure out procedur lly how all of this stuff gets before us yes there's a lot of things that are unique about this case and that's why the government wanted to raise as the threshold issue on the issue of business of the case in light of the vindication  very writes in new york because we certainly believe that was the clearest and a threshold issue that this court could reach really without having to go further and it's in light of vents that in transpired ten years ago and so that's one of the things that the government wanted to put forth to this court fundamentally and one of the things that mr casella indicated is that there's no nothing on the record to indicate that those rights have been vindicated by mr cosell himself was present you want to rely on it about the new york proceeding and what happened do we have any physical record any transcript anything there is there's a record in the context of the york case so all those records are public publicly available and i wouldn't have any i'm in the it missed while speak she did she spoke and there were twenty other victims more than twenty victims who spoke including ms wilde at length some of them were there in person some of their spoke some of them spoke to representative some of them provided a letter in mr edwards and mr casella both spoke mr edwards commended the u s attorney's office for the southern district of new york for doing a great job mr go sell said quote this is a model for crime victims  rights and said that what happened that morning was a reflection of how it is that victims should be treated fair and reasonably and so the idea that there's nothing for the court to look at to determine whether or not there's been an indication of her rights i think is not true how how is that have a bearing of what whether the district court made a mistake in this case because the issue is whether or not dedicated and whether there's a live case or controversy for the core of it we got all that problem but i don't think those other difficulty or whatever the government does there has any bearing at all it's big for myself any bearing on this matter before of that i understand the government's position is that because the southern district of new york i understand the government urging the media right there were overcome the mistakes that were made years ago down here i can understand that but beyond that i don't think it's relevant it is a little odd to say i mean i take your argument to be sort of like come on basically but it is a little odd to say that because some other office some other d o j office didn't flagrantly violate your rights and allowed you to vindicate your rights that sort of whitewash is everything that happened down here well the issue is whether or  wasn't the right thing to do and so we're not rejecting that factual proposition but in terms of the legal significance of the case in new york they're prosecuting in effect the identical offense and are vindicating her rights there and so there's nothing that is live her present a remedy that could have a practical meaningful effect here in florida for name alleged co conspirators and that in p s a and the might not technically apply but you know on the record there's been an indication that there has been conferral and communication between the victims of the offense and that office in conjunction with the epstein case generally a kind of wondered generally is the government really opposed setting aside this in p s a as to the coconspirators why do they need to be a party let's assume for  violation of the c v r a here and help me with whether you can as part of the remedy you could set aside the way you could always really enter  after control what is what is your best case that you couldn't set aside that here if you assume the st steps which i know you contest i think say they're not barred by the prosecution up in new york i'm sorry if he were still alive would you oppose setting aside the n p a here yes the government has opposed setting aside a non prosecution agreement it committed to the to the agreement and it continues to be okayed to fulfilling its from and so even if the court were to found that you violated the right to say the remedy is not setting aside that's correct the government what would the remedy be well received very only applies for certain limited remedies to a victim one of those remedies involves the existence of a core proceeding which didn't exist here  there's limitation as to lack of damages so those are things that we know exist in the statute that involve an actual proceeding but outside the course of actual proceeding there's an administrative remedy within the department of justice that a victim would have to avail or sometimes have that's for the bugs man is that what you're talking about i say that's not really a remedy best just to have disciplinary action it might be an inadequate remedy from their perspective ok that's the remedy that congress cho remedy is that before the proper justice if the seabury were to attach then that is one of the remedies that's available in terms of pre indictment i'm talking about discussion about the import of listening to the victims and so in that regard there was discussion about the importance of the victims having opportunity to speak because they wouldn't have an opportunity to speak in the future mr cosell talked about t a and about this being a model what happened in new york on for how it is that you've indicated victims rights and that they have been treated fairly so in that regard this is very came up but there wasn't any kind of ruling by the district court that this is a hearing attorney general guidelines and the v r a the victim's rights restitution act provide that that should occur that we should be communicating with victims about what's happening during the course of investigation as appropriate that's not the case there is an existing law the v r a which indicates that we should be communicating with victims about the course of investigation if it's appropriate because there could be potential dangers to talking about an ongoing investigation before it's actually come to fruition and there's also attorney general guidelines about the conduct of prosecutors which is broader than what may be contained in the c v or a and so in this particular case we know from the record that that consultation did happen but generally speaking there's also other laws and regulations guidelines on the books that talk about what it is the prosecutor should be doing so let's assume you had an indictment and you had a guilty plea and you had to one count and the victims were never notified you did a plea agreement could they come in and get they would have an opportunity to reopen a clear sense ok so the difference here then is really that this is a non prosecution agreement so while you could open up a plea you can open sense that the remedies reflect that there is no remedy to reflect the fact that a non prosecution agreement was entered without consultation because the statute doesn't anticipate that that's a right that that attaches and so  make sense that they have or i'm a to have a plea to one count but not but there's no remedy at all if you just decide not prosecute that sounds counterintuitive to me i understand why the court would feel that way but there are certain dangers that are attendant to these rights attaching pre charge as an investigation is ongoing things can change rapidly discerning who is a victim who is potential we're not talking about just an investigation we're talking about a n p a we're limited to problem with the broader argument why hasn't it fully mature because they've entered into a munity agreement cases done as to the defendant as to that particular defendant whether or not the broader case is still on apparently as to for  well certainly as to that particular defendant in a particular case if there's a non prosecution agreement a prosecutor presumably has decided that the case is mature with spector that person sufficiently that that's the way to resolve the case but there could be an ongoing investigation relating to that person still that potentially could be compromised by the revelation of this agreement and that's one of the things it's a textured area and so the current guidelines in the v r a allow for the pot ability that there are times when a prosecutor needs to exercise her discretion in terms of what to say and how much to say to a victim and that could be the reason why it is that c v r a doesn't create enforceable rights and victims been litigated yet it has not been litigated yet it was there was certainly an anticipation that mr epstein was going to raise the issue and that no longer is going to occur you know i'm talking at the coconspirators you say there's an ongoing investigation he's deceased there has to be an on going investigation as to somebody else right correct and they have you given notice that their target in the of these for concert conspirators up in new york that they are potential target of the investigation i can't speak as to the communications from the southern district we know from public statements what the attorney general said and the u s attorney's office for the northern and what have they said as to these four defendants they said there isn't an ongoing investigation as to them ok so has the government taken a position as to whether you're bound by this agreement and here i mean it seems like you're investigating them how can you do that if you give them immunity the terms of the non prosecution agreement  e i understand if you want that when you're investigated case in atlanta and you want john doe to have a beauty or do you go to the court in atlanta for the court correct you might say to john doe we're let me ask you one more question before we kind of wind down which may or may not be happening the why i can't we why couldn't we do mr casella was describing this th circuit case to us dean if we're concerned as i'll confess i am about the application of the statute at least in some kind of free ranging broad based way pretty indictment because what i worry about is conferral with victims about search warrants and raids and interrogations casella points out rightly that circuit has this case called gene and said well we don't have to decide all those hard questions but as to once it once a case has matured to this point we're good for this train only it applies here why couldn't we do a deed and have it there couple things dean was fairly careful in restricting its holding to the facts so that pretty right i mean a judge paul has said right couldn't we do that here so check it and the other thing i would say is there's a distinction factually between dean and what's happening in this case and dean they basically had resolved the case they were coming to the court in anticipation of filing a charging document along with the police greenman and so which would resolve the case in its entirety and they basically were asking for the court to approve of a process by which the victims would in effect not be fully notified of the existence of the plea negotiations in advance and so that really different substantively from what we're talking about here because here we had a case that really was still ongoing in terms of the investigation there was an indictment a draft indictment that was prepared they were processed prosecution prosecution memo that had been prepared but it had never been approved for charging by the u s attorney's office it had not fully come to that point and one of the things that the record shows is that even as mr epstein was appealing in effect the decision by the southern district of florida to maine just as the investigation continued and that's one of the reasons maybe not a good reason why it is that letters are being sent to ms while another victim saying the investigation was ongoing because they did believe that the case might still get to a charging point which it never did because mr epstein fulfilled the terms of but clearly right the record reflects that there was a point in this case at which the n p a is a done deal and you're still telling ms wild we're going after him right how is that different substantively from what was going on in the in from from time n p a to you know to the end in effect that sliver of time how is that different from what was going on in the well because the difference between basically the case being at the charging stage when they went to the court in the dean case everything was done they were just asking the court for basically approval on how it is they were going to notify the victims they had it there was an anticipation that there was going to be a criminal proceeding there was a charging instrument there was a plea document it was done that's not what happened here it's true that the investigation did get to the point where the office was able to identify a defendant in a subs and a certain set of victims but it hadn't mature to the end they weren't ready to charge the case indeed they decided not to charge the case and it even got to the red jury there had been grand jury proceedings about it this this case there had been grand jury proceedings but the the there was no charging document presented to a grand jury and had never been approved and never been approved to be presented to the grand jury and the investigation then continued that's what the factual record showed and so this is a distinct situation and then setting aside the factional distinctions i think would be very hard to administer to give a victim and forcible rights against the government when the says mature sufficiently as a prosecutor i'd find that very challenging to figure out what my case is mature and sufficiently during the course of investigation you could talk to a witness and think one thing you can talk to somebody else the next day and think something else and the case can change a lot over a period of time and so the idea that you're investing vesting within a victim and forcible rights against the government during this time when the case could be changing and frankly could be dangerous sometimes to be talking to rd parties even if they're  dynamic of adversity are sort of a victim in the in the government being in an op is in opposition to each other whereas they should be a lot and whole policy for example ple setting aside police everything that's in the criminal rules and everything the policy underpinnings of the criminal rule or all dared to keep the judge out of the prosecutorial function would you agree with that yes completely yes i mean  policy in a challenge the crime victims act you're not challenge the constitutionality of the obligations imposed on the got government and that is that correct correct that i have a question about immunity because i just don't have enough background is it commonplace for when you have an immunity agreement with one defend that you have four other defendants are scuse me named parties granted immunity without them sign the document ar being party is that at least in my experience how unusual never seen it before certainly you can do multiple defendants multiple i mean a tease but typically there before the court because that's my impression but i could be wrong i don't think you're wrong ok there was a lot that was unusual but i just want to know about that part because it goes to the a rim and it goes to my concern to just out of court or to somebody to be joined or do anything about the soul possible and i don't know but i think about this you have lots of steps to get to it but it just seems to me you don't need to join anybody i mean how can they have a crime benefit of what they never name four parties and it's just unusual there is a lot i appreciate your candor in entering my question yes and one of the things that was unusual about the non prosecution agreement is the fact it whether it was again a good idea or a bad idea there was a carve out in the document to ensure that the victims who had been identified were not only not prohibited from seeking remedies under twenty to fifty five but that mr epstein had basically no defense to any action brought against him and he would concede liability and so that was a part of the the agreement between the government and mr epstein again whether that was a good or a bad idea it was highly unusual but it was an effort to create some protections for the victims and one of the reasons why the line usa decided that it wasn't a good idea to disclose it when she did i think we all great things sometimes look different in across appeal to raise that issue as you pointed out in your question typically a party can defend the judgment below within a year she would want so then the question is what is the judgment below saying the judgment below said the case will be closed because the case is moot that is the only judgment in front of you and that is a legal errors for the reasons that we've suggested i agree with you that the act applies three judges pre whether the whatever benefits or rights are conveyed pre indictment can be redressed an article three court is another issue altogether that's right and that's an issue that we hope that you'll remain under the court to sort through you're familiar with the policy underpinnings of the federal rules of criminal procedure with regard to plea agreements setting aside plea agreements plea bargaining all those kind of things ye i'm not saying it doesn't happen but it's wrong to interject himself in what's going on between the defense and the government during the negotiation yes you create with that it would be it would be totally inappropriate for a district judge is take his nose it to become a party to that yes well party or nothing does to get involved put it is not a party just get involved agreed to get the lawyers together and say i think you ought to be doing these things  just a few months ago in the lopez case and what lopez says and follows u s supreme court precedent that when a police who does not cross appeal may not attack the judgment with a view to enlarging his own rights or diminishing the rights of his adversary and what the government is asking you to do today is to rule that the crime victims rights act is not apply pre charge that enlarges he has there's no remedy no they're saying they actually decided i understand that  i speak for myself i read the government as saying it doesn't apply because there is nothing in article three judge could do consistent with the separation of powers doctrine i think that's one of their arguments we have to agree with th that goes to standing that goes to whether that right or right can be redressed right so that goes if the government doesn't have to cross appeal on that ground doesn't it has to be a process as we have an abiding obligation ourselves to make that determination constitutional stand don't we have the obligation the side that our constitutional standing yes yes that statutory stand i understand i'm speaking of a constitutional standing correct and i agree with you on that but the question of the reach of say from a standpoint of prudential consideration i'm not going to grant relief well so the issue is what are you going to her rule on whether the c v r a applies pre charg we won that issue in the district court and now the question is how does that issue get in front of you so all right so help me with that i'm just trying to figure out this is not a loaded question i'm just trying to figure out how it happened how should they have brought that here i mean should they have appeal back in two thousand and eleven or thirteen or whenever that issue was ruled again no decided against then i would have an interlocutory in our view what should happen is this you have a narrow non merits judgment in front of the case is moot that's wrong you should remain to the district court the district court will then conduct further proceedings i'm sure you'll pay close attention to all the points that judge joe flatus raising about whether that remedy would intrude on separation of powers it will then enter some kind of an order maybe the same order maybe a different order at that point the government would have an option remedy and he really say as well that issues as to the remedy are minute and so you get no remedy at all that's what happened so now the cases it's kind of a catch twenty two dollars and saying it's not moot you went to the merits of the case to show there's a and here is what the remedy should be including setting aside the in p s a you ask us to i thought to direct the district court you didn't just send it back and you may have said at a minimum send it back i'll have to collect the briefs but my recollection i read it some time ago is that you said tell the district court this is the remedy here set aside i e it's not  the and why it's not move because one it cannot attach pretty indictment to it allows setting aside and so tell the district court let us have a hearing give us these raised up here on appeal as to whether they had a pulp cross appeal i don't know the answer but i'm just trying to see what you raise to see whether they really need to fall across to feel that i would be committing ineffective assistance of counsel if i did i'm not because i'm old i'm not  beautiful you're doing that but i'm not so sure the only issue up here in our in our appeal is just this that's all i'm saying that's all we need to win if you know that's a different issue that's not what you are telling us us and we should do nothing  that and maybe we should i don't have to we certainly would be happy with that we'll be happier with a more comprehensive ruling where they were the other remedial arguments they were making sort of adjunct to your rescissions last mootness argument you know you're sort of about discovering a victim impact here and stuff the sort of follow on to the office to so the only way that the court can argue sustain the judgment below is to say that any ruling from judge may or would have been meaningless that was the word he used that's the definition of so if you read through our briefs and find one issue that you say by golly i think that's an issue that remained alive in front of the district court then at that point we win the case cases remanded judge marilyn all that you look at separation of powers issues and everything else and that's why i'm saying that at a minimum we get this now i've judged all is right that we have asked for a maximum set of of remedies as well but that's what we all you need to conclude is that there is one issue that remains the law and that's why i guess the issue of the  r applying pre charging becomes becomes important that's an issue of statutory standing it's not an issue of constitutional standing the government's raised no constitutional challenge to the act that is an issue that would enlarge the rights of the government and this is one of the points that is so ironic remember that in two thousand and six the government sent a letter to dozens and dozens of crime victims saying you have crime victims rights i know you have rights under the crime victims rights act you can petition the court we're going to protect those rights and now they're asking you to enter an order that would strip those rights away not just from ms wilde but from dozens and dozens and others of other eppstein victims that's the very reason why across appeal is required if they're going across appeal i'm assuming the national crime victim wants to do would have filed a different amicus brief than the one you received i'm assuming members of congress who you know from the legislative history in the various letters that have been exchanged have a very strong view the this act does apply pre charged none of those potentially interested people were informed that this was going to be an issue that you were going to be ruling on because the government to don't take across appeal and so because the government take across the are not asking you to give us a thumbs up or thumbs down all you do is send this case back to the district court remained but judge mar we have to tell them why it's not moot yes because they are using we have to say it's not meaningless correct all right and we have to say is not meaning us because we have to deny some remedy under the statute that they're coconspirators because there are not parties that would be meaningless i can't do this that is meaningless right and so you're trying to pull it apart but your argument  is it's not moot because there is a lot remedy correct and you're asking us to identify what the remedy is an order to say it's not moot that's what i thought your appeal charge when you remain and that then becomes an available remedy under the law the case at least the law that exists in the district court the only the mistake that the judge made was to assume well i can't reach these kinds of remedial issues because the coconspirators aren't sitting here in front of me as parties to the kids and we've given you more to pull reasons why that particular legal conclusion was incorrect and you don't have to reach all these other issues about pre charge after cation and so forth because judge mary's already decided those send it back  he wrong he's wrong because they remain a number of meaningful decisions that could be entered and what is that what are the meaningful decisions that could be entered one would be as between the government and ms while the non prosecution immunity provisions are no invoice that would be one example and again this is not something that judge marriage is unfamiliar with in two thousand and three out of us deciding whether that's true or not you want us to say you've already decided it so that's a good remedies to just set it siddur whether to set it aside again we wouldn't be disappointed with direction from this court ordering him to set it aside but the point is the fact that we're having these discussions about whether that would be appropriate whether they're intended beneficiaries or not those are all live issues that the court could decide and therefore the case is not moved that's why it needs to go back to the district court and and again just to to the issue about does this apply before charging you would be creating a circus  believe the government concedes if you conclude it doesn't apply pre charge you but we're asking again for a narrow holding this is an unusual case where the government sent a notice to victims that then entered into an agreement totally resolving the case and then concealed in misled what it  done from the victims affirmatively miss miller led them they then scheduled a court hearing in the make the non prosecution agreement binding and the government then communicated to the victims about that court hearing on that unusual set of facts hopefully unlikely to repeat itself in american legal history you could find as judge mary did that the crime victims rights act applies and that's consistent with the intent the purpose the whole idea behind the crime victims rights act was that people like ms wilde would not be kept in the dark when their case was being resolved so what about all of that as an equitable matter is very appealing what about the mistimed berg's point that as a prosecutor court no matter how narrowly you try to tailor this opinion whether you know you say in words or substance that it's good for this right only there's really no way to draw a line that will prevent creep if you will into detection investigation whatever the scarier stuff her argument is being violated in the context of an ongoing police investigation or no problems whatsoever in ten years and one of the nation's largest circuits with a heavy criminal dock so we can come up with hypothetical scenarios about how the sky might fall but the sky has not fallen in the th circuit and it won't fall in this circuit if you hold on these very unusual facts where ms wilde has been deliberately misled about what's going on in those circumstances the government has an obligation to confer not to mention the right to treat her with fairness and the right to receive accurate and timely notice about court hearings your ruling we understand is going to be there ot to use that term again but it's an important one from his wild and dozens of other sexual assault victims of one of the largest sex trafficking organizations to ever operate in the united states on these unusual facts the district court failed in its obligation to make sure and again the language is mandatory it quote shall ensure close quote that ms while gets her rights she has not been assured of her rights in the the most effective way to give her rights is to rescind the immunity provisions in the non prosecution agreement i need to turn to the issues in new york because we're hearing again based on non record information that somehow new york takes care of them out of we agree with judge joe flat what prosecutors are doing with new york crimes has no bearing on what prosecutors have to do here with regard to florida crimes it's important to understand that a sex trafficking crime under for example one thousand five hundred and ninety one is a very serious crime with a penalty of up to life in prison and the fact that a five year conspiracy charge could be filed up in new york doesn't take away any rights that  trafficking offenses were committed against ms wilde in the southern district of the floor if florida she has rights on those crimes that cannot be pursued in new york and again if the court is going to make some kind of a ruling that something happened up a new york that affected her rights it would be doing so based not on any record information about what happened when prosecutors were pursuing those cases i will represent to the court that there has been no confer with ms wild about prosecuting the substantive sex trafficking offenses that were committed against her in florida the new york prosecutors have no jurisdiction to file substantive track sex trafficking offenses here in the southern district of florida and that's why the new york proceedings have nothing to do with this particular particular case there is been no consultation with ms wilde no conferring with ms wild about what to do with those cases and that's why judge mair ruled back in two thousand and thirteen he said look there may be other districts that have some ability to look at some of these cases but that doesn't detract from his wilde's opportunity to seek a remedy from this court about violation of her rights with regard to offenses here in florida they ask you a quick question so in response to judge joe flats concerns about separation of powers and court intervention in ongoing prosecutorial matters your response earlier was  know we're not going to be sort of countermanding indictment decisions here once the once the conferral process has occurred the us attorney has discharged its obligation they can do whatever they want to at that point correct no and in response  slippery slippery or provision in the act that refers to like being treated fairly she says like conferral is something you can kind of put in a bucket but being treated fairly has these tentacles that might sort of sprawl around the sort of the ongoing investigation prosecution is there a is there a deeper separation of powers risk they are we don't see any separation of powers risk because clearly the government is only going to be held to its statutory obligation to treat victims fairly i mean there's this notion that the it's true under the constitution that the prosecution the executive branch gets to make certain charging decisions but there are all kinds of statutes that limit when and how they can make the speedy trial act gives rights to defendants and if they don't follow those rights certain remedies in obligations follow similarly congress was entitled to say to the government you have to treat crime victims with fairness you have to send them notices and so forth and i would point out that that right to fairness again that was something that we raised in front of judge mera and as you point out it may have much broader implications judge mary has never ruled on that and we still haven't heard from the government their position on whether this case should be remanded at least so the judge merican reached the right to fairness issue in the right to notice a court hearing issues both of those were presented through years and years of litigation and yet his ruling never reach that in any way whatsoever ok very well thank you both very much well argued on both sides it's a unique case we appreciate the effort that you put into it all right so we'll be in recess until tomorrow morning at nine a