11th Cir. Allows Discovery by Victims of Perv's Plea Negotiations

By William Peacock, Esq. on April 25, 2014 | Last updated on March 21, 2019

Something about this deal stinks.

In 2006, according to the Eleventh Circuit, Jeffrey Epstein was investigated by the FBI for sexually abusing "several minor girls." He was eventually non-pros'd by the U.S. Attorney's Office as part of a plea deal in which he would plead guilty to state charges of solicitation of prostitution and procurement of minors to engage in prostitution.

Paul Cassell, the attorney for two of Epstein's victims, describes the case in more extreme terms on The Volokh Conspiracy, noting that "wealthy investor Jeffrey Epstein had sexually abused dozens and dozens of minor girls." After extensive plea negotiations, during which the victims were kept completely in the dark, he copped a plea to "minor Florida offenses."

Cassell, along with his co-counsel Brad Edwards, filed suit on behalf of two Jane Does, seeking eventually to have the non-prosecution agreement rescinded. To justify such a remedy, they sought discovery of pretrial correspondence between Epstein and the U.S. Attorney's Office. The request was granted by the district court, and last week, the Eleventh Circuit affirmed.

Crime Victims' Rights Act

The CVRA requires federal prosecutors to respect specific rights of victims -- in this case, "her right to confer with federal prosecutors, her right to be treated with fairness, her right to receive timely notice of relevant court proceedings, and her right to receive information about restitution."

The United States argued that it did its best, and that the CVRA did not apply to pre-indictment negotiations. The district court disagreed and ordered discovery.

Not Privileged

Epstein's counsel intervened to argue that the communications were privileged under Federal Rule of Evidence 410, the work-product privilege of attorneys, and a common-law privilege for plea negotiations in criminal proceedings.

Rule 410

Federal Rule of Evidence 410 provides that evidence "is not admissible against the defendant who made the plea or participated in the plea discussions" if the "guilty plea ... was later withdrawn" or "did not result in a guilty plea."

Epstein pleaded guilty, so the court notes that he doesn't qualify. (This is tricky logic -- he pleaded guilty in state court, not federal court. Under this interpretation, the rule would be meaningless if he were reprosecuted in federal court.)

The panel also pointed out that the rule bars admission of the evidence against the defendant, not discoverability of the evidence to be used against the United States. (Again, tricky. Yes, it's being used against the United States, but recession of the plea has undeniable negative consequences for Epstein.)

Work Product

"Disclosure of work-product materials to an adversary waives the work-product privilege." Epstein and the United States were adversaries during the plea bargaining process, so work-product is waived for any materials sent between them.

Common Law

"The Supreme Court has cautioned federal courts to be 'especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself.'"

In other words, if there was a common-law privilege that protected pre-indictment plea negotiations, it went out the window when Congress considered common-law privileges and instead enacted the limited Rule 410.

Bottom Line

"The 'conjunctive' power of three false claims of privilege does not rescue the correspondence from disclosure." Or, to put it more simply, if the federal government shuts victims out of a plea bargain, the correspondence that led up to the deal will be discoverable.

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