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In Wild, the Eleventh Circuit panel compared the language of the CVRA to the language
of the VRRA, noting that the VRRA "clearly extends victim-notice rights into the pre-charge
phase" and opining that the government "may well have violated" the VRRA with regards to its
investigation of Epstein. As a predecessor to the CVRA, the VRRA afforded victims various rights
and services; however, it provided no mechanism for a victim to assert such rights in federal court
or by administrative complaint. Like the CVRA, the rights portion of the VRRA established the
victims' right to be treated with fairness and respect and the right to confer with an attorney for
the government. However, the rights portion of the VRRA was repealed upon passage of the
CVRA and was not in effect at the time of the Epstein investigation.
The portion of the VRRA directing federal law enforcement agencies to provide certain
victim services such as counseling and medical care referrals remained in effect following passage
of the CVRA. Furthermore, two of the VRRA requirements-one requiring a responsible official
to "inform a victim of any restitution or other relief to which the victim may be entitled," and
another requiring that a responsible official "shall provide a victim the earliest possible notice of
the status of the investigation of the crime, to the extent it is appropriate to inform the victim and
to the extent that it will not interfere with the investigation"-may have applied to the Epstein
investigation. However, the VRRA did not create a clear and unambiguous obligation on the part
of the subject attorneys, as the 2005 Guidelines assigned the duty of enforcing the two
requirements to the investigative agency rather than to prosecutors. Moreover, the VRRA did not
require notice to victims before the NPA was signed because, at that point, the case remained
"under investigation," and the victims did not become entitled to pursue monetary damages under
the NPA until Epstein entered his guilty pleas in June 2008. Once Epstein did so, and the victims
identified by the USAO became entitled to pursue the § 2255 remedy, the USAO furnished the
victims with appropriate notification.
B.
OPR Did Not Find Evidence Establishing That the Lack of Consultation Was
Intended to Silence Victims
During her OPR interviews, Villafaña recalled more than one discussion in which she
raised with her supervisors the issue of consulting with the victims before the NPA was signed on
September 24, 2007. Acosta, Sloman, Menchel, and Lourie, however, had no recollection of
discussions about consulting victims before the NPA was signed, and Menchel disputed
Villafaña's assertions. OPR found only one written reference before that date, explicitly raising
the issue of consultation. Given the absence of contemporaneous records, OPR was unable to
conclusively determine whether the lack of consultation stemmed from an affirmative decision
made by one or more of the subjects or whether the subjects discussed consulting the victims about
the NPA before it was signed. Villafaña's recollection suggests that Acosta, Menchel, and Sloman
may have been concerned with maintaining the confidentiality of plea negotiations and did not
believe that the government was obligated to consult with victims about such negotiations. OPR
Conduct 1.3, lack of diligence, and 8.4(d), conduct prejudicial to the administration of justice. The holding in Smith
was based on Article 47 of the Maryland Constitution and various specific statutes affording victims the right, among
others, to receive various notices and an opportunity to be heard concerning "a case originating by indictment or
information filed in a circuit court." However, both the underlying statutory provisions and, significantly, the facts
are substantially different from the Epstein investigation. In Smith, the criminal defendant had been arrested and
charged before entering a plea.
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