CM/ECF - Live Database

CM/ECF - Live Database r Page 1 of 3 U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:08-cv-80736-KA M Doe'. United States of America Assigned to: Judge Kenneth A. Marra Cause: no cause specified Date Filed: 07/07/2008 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant LRJ Date Filed # Docket Text 07/07/2008 1 EMERGENCY PETITION for Victim's Enforcement of Crime Victim's Rights Act 18 USC 3771 against United States of America Filing fee $ 350. Receipt#: 724403, filed by Jane Doe. (rb) (Entered: 07/07/2008) 07/07/2008 2 CERTIFICATE OF EMERGENCY by Jane Doe re 1 Complaint (rb) (Entered: 07/07/2008) 07/07/2008 3 ORDER requiring U.S. Attorney to respond to 1 Complaint filed by Jane Doe by 5:00 p.m. on 7/9/08. Signed by Judge Kenneth A. Marra on 7/7/08. (ir) (Entered: 07/07/2008) 07/09/2008 4 NOTICE of Attorney Appearance by Dexter Lee on behalf of United States of America (Lee, Dexter) (Entered: 07/09/2008) 07/09/2008 6 Sealed Document. (rb) UNSEALED see DE 12 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 7 Sealed Document. (rb) UNSEALED see DE 13 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 8 Sealed Document. (rb) UNSEALED see DE .14 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 12 UNSEALED MOTION to Seal Response to Victim's Emergency Petition by United States of America. (previously filed as 6 sealed document) (bs) (Entered: 07/15/2008) 07/09/2008 13 UNSEALED RESPONSE to 1 Emergency Petition for Enforcement of Crime Victim Rights Act filed by United States of America. (previously filed as 7 sealed document) (bs) (Entered: 07/15/2008) 07/09/2008 14 UNSEALED DECLARATION signed by : A. Marie Villafana. re 13 Response to Victim's Emergency Petition by United States of America. (previously filed as 8 sealed document) (bs) (Entered: 07/15/2008) 07/10/2008 5 ORDER SETTING HEARING: Petitioner's Emergency Petition for Enforcement of Crime Victim's Rights Act set for 7/11/2008 10:15 AM in West Palm Beach Division before Judge Kenneth A. Marra. Signed by Judge Kenneth A. Marra on 7/10/08. (ir) (Entered: 07/10/2008) 07/11/2008 9 REPLY to Response (under seal) re 1 Complaint/Emergency Petition, and Objection to Government's Motion for Sealing of Pleadings filed by Jane Doe. (Is) (Entered: 07/11/2008) https://eclflsd.uscourts.gov/cgi-bin/DktRpt.pl?657771929017239-L_80 1_0-1 10/17/200E EFTA00177201 CM/ECF - Live Database P Page 2 of 3 07/11/2008 10 Minute Entry for proceedings held before Judge Kenneth A. Marta: Miscellaneous Hearing held on 7/11/2008. Court will issue order to unseal pleadings. Court Reporter: Official Reporting Service- phone number 305-523-5635 (ir) (Entered: 07/11/2008) 07/11/2008 JI ORDER Denying Motion to Seal re 7 Sealed Document, 6 Sealed Document, 8 Sealed Document. Signed by Judge Kenneth A. Marra on 7/11/2008. (Is) (Additional attachment(s) added on 7/15/2008: # 1 docket sheet) (bs). (Entered: 07/14/2008) 07/17/2008 15 TRANSCRIPT of Hearing held on 7/11/2008 before Judge Kenneth A. Marra. Court Reporter: Victoria Aiello- phone number 954-467-8204 32 pages. (abd) (Entered: 07/18/2008) 07/28/2008 16 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filing for Paul G. Cassell, Filing Fee $75, Receipt #724532. (cw) (Entered: 07/28/2008) 07/29/2008 17 NOTICE by United States of America To Court Regarding Absence of Need for Evidentiary Hearing (Lee, Dexter) (Entered: 07/29/2008) 07/30/2008 18 ENDORSED ORDER granting Paul G. Cassell 16 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings. Signed by Judge Kenneth A. Marra on 7/29/08. (ir) (Entered: 07/30/2008) 08/01/2008 19 RESPONSE/REPLY to Goverment's Notice to Court Regarding Absence of Need for Evidentiary Hearing and Motion for Production of Non-Prosecution Agreement and of Report of Interview filed by Jane Doe. (Attachments: # 1 Exhibit Proposed Stipulation, # 2 Exhibit July 17, 2008 Letter, # a Exhibit July 3, 2008 LetterXEdwards, Bradley) (Entered: 08/01/2008) 08/08/2008 20 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filing for Jay C. Howell, Filing Fee $75, Receipt #724591. (cw) (Entered: 08/12/2008) 08/13/2008 21 ENDORSED ORDER granting Jay C. Howell 20 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings. Signed by Judge Kenneth A. Marra on 8/12/08. (ir) (Entered: 08/13/2008) 08/13/2008 22 NOTICE by United States of America re 12 Response/Reply (Other), Response/Reply (Other) Government's Response to Petitioners' Request for Non-Prosecution Agreement and Report of Interview (Lee, Dexter) (Entered: 08/13/2008) 08/13/2008 21 ORDER Setting Status Conference: Status Conference set for 8/14/2008 03:30 PM in West Palm Beach Division before Judge Kenneth A. Marra. Parties may contact the courtroom deputy at 561-514-3765 to make arrangements to appear telephonically. Signed by Judge Kenneth A. Marra on 8/13/08. (ir) (Entered: 08/13/2008) 08/1412008 25 Minute Entry for proceedings held before Judge Kenneth A. Marra: Status Conference held on 8/14/2008. Court Reporter: Stephen Franklin- phone number 561-514-3768 (ir) (Entered: 08/21/2008) 08/20/2008 24 NOTICE of Instruction to Filer: re 22 Notice (Other) filed by United States of America Error: Wrong Event Selected; Instruction to filer - In the future please select the proper event. (Is) (Entered: 08/20/2008) 08/21/2008 26 ORDER TO COMPEL PRODUCTION AND PROTECTIVE ORDER. Signed by Judge Kenneth A. Marra on 8/21/08. (ir) (Entered: 08/21/2008) 08/22/2008 27 TRANSCRIPT of Hearing held on 8/14/2008 before Judge Kenneth A. Marra. Court Reporter: Stephen Franklin - phone number 561-514-3768 25 pages. (abd) (Entered: 08/25/2008) https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?657771929017239-L_801_0-1 10/17/2001 EFTA00177202 CM/ECF - Live Database - ' Page 3 of 3 09/25/2008 21 MOTION to Unseal Document Non-Prosecution Agreement by Jane Doe. Responses due by 10/14/2008 (Attachments: # 1 Text of Proposed Order)(Edwards, Bradley) (Entered: 09/25/2008) 10/08/2008 29 RESPONSE in Opposition re 28 MOTION to Unseal Document Non-Prosecution Agreement filed by United States of America. (Villafana, Ann Marie) (Entered: 10/08/2008) 10/16/2008 3Q RESPONSE/REPLY to 29 Response in Opposition to Motion to Unseal Non-Prosecution Agreement filed by Jane Doe. (Attachments: # 1 Exhibit October 9, 2008 letter from Brad Edwards, Esquire to AUSA Dexter Lee, # 2 Exhibit October 15, 2008 Letter from Brad Edwards, Esquire to AUSA Dexter Lee)(Edwards, Bradley) (Entered: 10/16/2008) PACER Service Center Transaction Receipt 10/17/2008 10:41:21 PACER Login: du4480 Client Code: Description: Docket Report Search Criteria: 9:08-cl-8073 lam 6- Billable Pages: 2 Cost: 0.16 https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.p17657771929017239-L_801_0-1 10/17/20W EFTA00177203 Case 9:08-cv-fh... .36-KAM Document S.. Enterea FLSD Docket 10/16/2t...,d Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80736-CIV-MARRAMOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, 1. UNITED STATES OF AMERICA, Respondent. VICTIMS' REPLY TO RESPONDENT'S OPPOSITION TO VICTIMS' MOTION TO UNSEAL NON-PROSECUTION AGREEMENT COME NOW the Petitioners, Jane Doe #1 and Jane Doe #2 ("the victims"), by and through undersigned counsel, and reply to the Government's Opposition to Victims' Motion to Unseal Non-Prosecution Agreement. 'The victims have moved for a lifting of the protective order barring them from publicly disclosing or discussing the terms of the non-prosecution agreement between Jeffrey Epstein and the United States Government. Jeffrey Epstein has made no response to this motion. The Government, however, contends that the victims' motion should be denied because the victims cannot show any injury from the protective order. The Government's position is wrong for three reasons. First, the Government bears the burden of showing some good cause for a protective order. It has utterly failed to even offer any such cause — much less show that it is good cause. Second, the Government — with the apparent contrivance of Jeffrey Epstein's attorneys — has made inaccurate representations about the nature of the non-prosecution agreement in its notices to the victims and in its filing before the Court. To set the record straight, therefore, the victims EFTA00177204 Case 9:08-cv-8,-. 36-KAM Document 3., Enterea FLSD Docket 10/16/2t.,,,d Page 2 of 6 should be allowed to publicly discuss the agreement. Finally, the victims are burdened by provisions in the protective order. For all these reasons, the protective order should be lifted. 1. No Good Cause Has been Shown for Sealing the Agreement. In their motion to unseal the agreement, the victims argued that there was no good reason for the protective order requiring them not to further disseminate the agreement. Curiously, the Government's response does not offer any substantive reason for the agreement to remain under seal or under a protective order.' Instead, the Government contends that victims have "no legal right to disclose the Agreement to third parties, or standing to challenge the confidentiality provision." Gov't Response at 2. But this argument has things backwards. It is not the victims' task to show some reason for not entering a protective order; rather, it is the Government's task to show some affirmative reason for entering the order in the first place. See Fed. R. Civ. P. 26(c) (allowing for entry of a protective order upon motion for a party "for good cause shown"); see also In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11'h Cir. 1987) ("good cause" for a protective order "generally signifies a sound basis or legitimate need to take judicial action"). Having been given the opportunity to explain why the document has to remain confidential, the Government chose not to do so. And Jeffrey Epstein was served with the victims' motion, but chose not to respond. Presumably this was because Jeffrey Epstein had no real interest at stake in the confidentiality of the agreement. Therefore, the protective order should be lifted because it lacks any articulated justification — much less any justification that constitutes good cause. I The Government prefers to view the issues in this case as involving not the sealing of a document but rather the entry of a protective order preventing the disclosure of a document. To simplify the dispute in this case, we will proceed on the Government's view of the situation. EFTA00177205 Case 9:08-cv-6, .36-KAM Document 3._ Entereo FLSD Docket 10/16/2u _ ‘i Page 3 of 6 2. The Government, With the Apparent Aid of Epstein, Has Provided Inaccurate Information to the Victims (and to the Court). The victims also asked that the protective order be lifted to help clarify the record in this case. The Government has made public representations in its pleadings in this case about the civil remedy provision in the non-prosecution agreement. It also specifically sent notices to Jane Doe #1 and other victims of Jeffrey Epstein's crimes describing this provision in the agreement. Those representations were inaccurate — as the Government now seemingly admits. See Gov't Response at 6 (referring to "erroneous disclosure" that was "inadvertently made" to Jane Doe #1). Indeed, the Government now takes the position that the responsibility for those inaccurate representations to the victim — as well as to the Court — lies with Jeffrey Epstein's attorneys'. See Gov't Response at 5 ("the [inaccurate] victim notification letter was provided to Epstein's attorneys prior to being sent, who approved the language of which the petitioners now complain."). The apparent approval by Jeffrey Epstein's attorneys of inaccurate information being sent to crime victims (and possibly their approval of inaccurate information being provided, as a result, to the Court) raises very significant issues under the Crime Victim's Rights Act. The victims have, therefore, sent a letter to the U.S. Attorney's Office requesting clarification of exactly how Jeffrey Epstein's attorneys participated in misleading the victims. See Attachment 1 (Oct. 9, 2008, Letter from Brad Edwards, Esq. to AUSA Dexter Lee). Indeed, it appears that the Government may have provided an inaccurate description of another feature of the non- prosecution agreement to the victims. See Attachment 2 (Oct. 15, 2008 Letter from Brad Edwards, Esq. to AUSA Dexter Lee (noting Government's representation to victims of a right to recover at least $150,000 in damages from Jeffrey Epstein while Jeffrey Epstein's lawyers take the position that the agreement allows automatic recovery of only $50,000). In light of all these EFTA00177206 Case 9:08-cy-13L. 36-KAM Document Enterea FLSD Docket 10/16/26 Page 4 of 6 apparent misrepresentations about precisely what the non-prosecution agreement entails, the victims should not be bound by a protective order barring their public disclosure of the agreement. 3. The Protective Order Unfairly Burdens the Victims. In their motion, the victims also explained how the protective order burdened their efforts to confer with other victims' rights attorneys regarding how best to proceed in light of the non- prosecution agreement. The Government does not seriously contest the victims' representations about the burdens imposed by the protective order. Instead, it takes the truly remarkable position that "the Protective Order does not prevent [the victims] from consulting with anyone; it only prevents them from disclosing the Agreement." Gov't Response at 4. But the whole point of the victims' motion was that the protective order places burdens on the victims in consulting with other attorneys about the agreement. Obviously, it is of no help to the victims to be able to consult with other attorneys on that issue if the agreement itself cannot be disclosed. CONCLUSION The provision in the protective order barring the victims and their attorneys from publicly disclosing the non-prosecution agreement should be lifted. DATED this I 6th day of October, 2008. Respectfully Submitted, THE LAW OFFICE OF BRAD EDWARDS & ASSOCIATES, LLC By: s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioners Florida Bar No. 542075 2028 Harrison Street - Suite 202 Hollywood, Florida 33020 Telephone: 954-414-8033/Fax: 954-924-1530 E-Mail: be@bradedwardslaw.com EFTA00177207 Case 9:08-cv-Ek, . 36-KAM Document 3, Enterea FLSD Docket 10/16/26.4 Page 5 of 6 Paul G. Cassell Attorney for Petitioners Pro Hac Vice 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: cassellp®law.utah.edu Jay C. Howell, Esquire Attorney for Petitioners Pro Hac Vice 644 Cesery Boulevard - Suite 250 Jacksonville, Florida 32211 Telephone: 904-680-1234 Facsimile: 904-680-1238 E-Mail: jay@iavhowell.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 16. 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. SERVICE LIST Jane Doe 1 and Jane Doe 2 Case No.: 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Dexter A. Lee, Assistant U.S. Attorney 99 N.E. 4th Street Miami, Florida 33132 Telephone: 305-961-9320 Facsimile: 305-530-7139 Ann Marie C. Villafana, AUSA United States Attorney's Office 500 South Australian Avenue Suite 400 West Palm Beach, Florida 33401 s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioner Florida Bar No, 542075 EFTA00177208 Case 9:08-cv-8t,. 36-KAM Document 3‘. Entered FLSD Docket 10/16/26..0 Page 6 of 6 I HEREBY FURTHER CERTIFY that on October 16. 2008 a true and correct copy of the above and foregoing document is being provided by United States mail to: Jack Alan Goldberger, Esquire Atterburty, Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, Florida 33401 jagesq©bellsouth.net Michael R. Tein, Esquire Lewis Tein, P.L. 3059 Grand Avenue Suite 340 Coconut Grove, Florida 33133 tein@lewistein.com Robert D. Critton, Jr., Esquire Michael J. Pike, Esquire Burman, Critton, Luttier & Coleman, LLP 515 North Flagler Drive Suite 400 West Palm Beach, Florida 33401 rcrit@bciclaw.com mpike@bcIclaw.com s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioner Florida Bar No. 542075 EFTA00177209 Case 9:08-cv-80, ..,6-KAM Document 30 %A w EMIL FLSD Docker 10/16/2.u8 Page 1 of 2 • (ArtiCctrei ?KZ • AND ASSOCIATES October 9, 2008 Dexter Lee, AUSA United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 Re: Jane Doe 4 and Jane Doe #2'. United States of America Case No.: 08-80736-CIV-MARRAJJOHNSON Dear Mr. Lee: I am writing to call to your attention two potentially false statements that the Government made, albeit inadvertently, in a sworn declaration submitted to the Court in connection with the above-captioned case. I request that your office file a corrected declaration and accompanying explanation. The first statement is found at page 3 to 4 of the July 916, 2008 declaration of Marie Villafafla. There a provision in a plea agreement with Mr. Jeffrey Epstein is recounted. As we understand the Government's current position in this case, it is that this provision is not in fact part of the plea agreement in this case. If our understanding is correct, then Ms. Villafaila has filed a false affidavit with the court, albeit inadvertently. We respectfully request that she file a new affidavit that corrects this false information, along with all other information relevant to understanding how the false information came to be provided to the court — and to the victims in this case. This correction should, in my view, include more details about how Epstein and his attorneys approved a submission of false information to the victims as you stated on Page 5, n.2 in your October 8, 2008 filing "Respondent's Opposition to Victims' Motion to Unseal Non- Prosecution Agreement" — presumably knowing that litigation surrounding the victims' rights issues was on-going and that such false information might be ultimately presented to the court. Such information is highly relevant to what remedy the victims might ultimately choose to seek for violations of their rights in this case. The second statement may or may not be false, but may need some clarification. At page 4 of Ms. Villafafta declaration, she states that "[i]n October 2007, shortly after the agreement was signed, four victims [including C.W.] were contacted and these provisions were discussed" (emphasis added). Similarly at page 5, the declaration states: "After C.W. had been notified of the terms of the agreement ....." (emphasis added). I write to inquire whether, in view of the fact that the provision noted above is not in fact (according to the Government's current view) part of the plea agreement, whether this was the provision that the government (inaccurately) discussed with the victims. Put another way, I am wondering whether the Government will now stipulate that it, at most, discussed with the victims a provision in the plea agreement that never was actually part of the plea agreement. 2028 HARRISON STREET,SUITE 202, HOLLYWOOD, FLORIDA 33020 OFFICE: 954-414-8033/305-935-2011 FAX, 954 - 924-1830/305-935-4227 BEOBRADEDWARDSLAW.COM EFTA00177210 Case 9:08-cv-80. ...6-KAM Document 36 _ EntereL FLSD Docket 10/16/2....,8 Page 2 of 2 Dexter Lee, AUSA United States Attorney's Office October 9, 2008 Page Two I continue to be interested in working out a joint stipulation of proposed facts in this case with the Government. If you would like to proceed in that direction, please give me a call. If, however, the Government is not willing to work out a joint stipulation of facts, then I need to have the record be as clear as possible, and at a minimum would request that the Government correct the inaccurate information it has provided to the court and clarify precisely how such inaccurate information came to be made a part of the record and the extent to which Mr. Epstein, through his attorneys, was culpable. Sincerely, BE/sg Brad Edwards 2028 HARRISON STREET.SUITE 202, HOLLYWOOD, FLORIDA 33020 OFFICE, 964-414-8033/305-935-2011 FAX: 954 - 924-1530/305-935-4227 BROBRADEDWARDSLAW.00M EFTA00177211 Case 9:08-cv-86...0-KAM Document 36 r A w ES hei• cap FLSD Docket 10/16/2„.../8 Page 1 of 2 / )?rer r r/petir AND ASSOCIATES October 15, 2008 Dexter Lee, AUSA United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 Re: Jane Doe # and Jane Doe #21 United States of America Case No.: 08-80736-CIV-MARRAIJOHNSON Dear Mr. Lee: I am writing to inquire about whether Mr. Epstein has violated his Non-Prosecution Agreement with the Government. As you know, the Government has repeatedly described the Non-Prosecution Agreement as guaranteeing to the victims of Epstein's sexual abuse at least $150,000 in civil damages. The Government has made these representations in reliance on a current provision in the U.S. Code — 18 U.S.C. § 2255(a) — which provides for an automatic amount of damages of at least $150,000. At the time that the Non-Prosecution Agreement was drafted and signed, that was the law that was in effect. In Epstein's latest filing in federal court, however, he takes the position that the pre-2006 Amendments version of the law applies. See Defendant Epstein's Motion to Dismiss, for More Definite Statement and To Strike Directed to Plaintiff Jane Doe's Complaint at 9, Jane Doe I Jeffrey Epstein, No. 08-CIV-80893-Man•a/Johnson (discussing § 2255 and stating that the "applicable version of the statute" is "pre-2006 Amendments"). The 2006 Amendments altered § 2255(a), by increasing the presumed minimum damages from $50,000 to $150,000. See Pub. L. 109-248, Title VII, § 707(b), (c), July 27, 2006, 120 Stat. 650. In light of Epstein's latest filing, I write to ask several questions: (1) Would you stipulate that you told me several times that Epstein had agreed to pay at least $150,000 to the identified victims of his abuse? (2) Did Epstein in fact agree to pay damages to the identified victims of his abuse at least $150,000? (3) Did the Government tell victims, either directly or through counsel, that Epstein had agreed to pay his victims at least $150,000? 2028 HARRISON STREET,SUITE 202, HOLLYWOOD. FLORIDA 35020 OFFICE: 954-414-8033/305-955-2011 FAX: 954-924-1530/305-935-4227 BEOBRADEDWARDSLAW.COM EFTA00177212 Case 9:08-cv-K. .6-KAM Document 3b .. EntereL Jri FLSD Docket 10/16/4..,/8 Page 2 of 2 Dexter Lee, AUSA United States Attorney's Office October 15, 2008 Page Two (4) Is Epstein in compliance with his Non-Prosecution Agreement with the Government when he is now taking the legal position, through his attorneys, that he only has to pay the victims $50,000 damages under § 2255? Thank you for any clarification you can provide on these questions. Sincerely, BE/sg Brad Edwards cc: Ann Marie C. Villafafia, AUSA United States Attorney's Office 500 South Australian Avenue West Palm Beach, Florida 33401 2028 HARRISON 8TREXT,SUITE 202, HOLLYWOOD, FLORIDA 33020 OFFICE: 954-414-8033/305-935-2011 FAX: 954 - 924 - 1530/305-935-4227 DROBRADEDWARDSLAW.COM EFTA00177213 6Z EFTA00177214 Case 9:08-cv- 3-KAM Document 29 Entered on FLSD Docket 10/ 08 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOES #1 and #2 Petitioners, 1. UNITED STATES OF AMERICA, Respondent. RESPONDENT'S OPPOSITION TO VICTIMS' MOTION TO UNSEAL NON-PROSECUTION AGREEMENT Respondent, by and through its undersigned counsel, files its Opposition to Victims' Motion to Unseal Non-Prosecution Agreement, and states: I. THE MOTION TO UNSEAL SHOULD BE DENIED BECAUSE THE NON-PROSECUTION AGREEMENT HAS NEVER BEEN FILED UNDER SEAL IN THIS COURT. Petitioners have filed their motion to unseal the non-prosecution agreement, claiming that no good cause exists for sealing it. As an initial matter, the motion should be denied because the non-prosecution agreement entered into between the United States Attorney's Office and Jeffrey Epstein was never filed in the instant case by the United States, either under seal or otherwise. On August 14, 2008, this Court held a telephonic hearing to discuss petitioners' request for a copy of the non-prosecution agreement. The United States advised the Court that the Agreement had a confidentiality provision, EFTA00177215 Case 9:08-cv-I ;-KAM Document 29 Entered on FLSD Docket 10/1 38 Page 2 of 7 which the United States was obligated to honor. The United States requested that, if the Agreement was to be produced to petitioners, it should be done pursuant to a protective order, to ensure that further dissemination of the Agreement would not occur. At that time, petitioners had no objection to such a procedure. On August 21, 2008, this Court entered its Order to Compel Production and Protective Order (DE 26). Subpart (b) of the Order provides that, "Petitioners and their attorneys shall not disclose the Agreement or its terms to any third party absent further court order, following notice to and an opportunity for Epstein's counsel to be heard." (DE 26 at 1.) Presumably, petitioners' motion to unseal is an effort to modify the terms of the Protective Order, to enable them to disclose the Agreement to third parties. Since the Agreement has not been filed under seal with this Court, the legal authority cited by petitioners regarding sealing of documents, United States I. Ochoa- Vasoue, 428 F.3d 1015 (11'h Cir. 2005), is inapposite. The parties who negotiated the Agreement, the United States Attorney's Office and Jeffrey Epstein, determined that the Agreement should remain confidential. They were free to do so, and violated no law in making such an agreement. Since the Agreement has become relevant to the instant lawsuit, petitioners have been given access to it, upon the condition that it not be disclosed further.' Petitioners have no legal right to disclose the Agreement to third parties, or standing to challenge the confidentiality provision. 'It is unclear whether the Petitioners themselves (as opposed to their attorneys) have actually reviewed the Non-Prosecution Agreement. The Court's Order to Compel Production required petitioners' counsel to review and agree to the Protective Order and to do the same with 2 EFTA00177216 Case 9:08-cv-f -KAM Document 29 Entered on FLSD Docket 10/( )8 Page 3 of 7 In order to have standing, petitioners must show: (1) an injury in fact, meaning an injury that is concrete and particularized, and actual or imminent; (2) a causal connection between the injury and the causal conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Granite State Outdoor Advertising, Inc. I. City of Clearwater, Fla., 351 F.3d 1112, 1116 (11ffi Cir. 2003). Petitioners already have obtained access to the agreement, so they cannot claim a denial of access as an injury in fact. Their motion to unseal refers to their stated desire to confer with other victims of Epstein and their attorneys "to determine whether they were likewise provided with inaccurate information about the nature of the plea agreement." (DE 28 at 5.) This asserted reason for needing to unseal the Agreement is baseless given that the Protective Order, at the Court's direction, specifically provides for a very simple procedure to allow other victims and their lawyers to see the Agreement. (See DE 26 at 1-2, subpart (d).) All that is required is for any victims and/or their attorneys to review and agree to the terms of the Protective Order, and to provide the signed acknowledgment of that agreement to the United States. Petitioners' claim that they wish to discuss with others the "possible legal responses" to the Government, including the National Alliance of Victims' Rights Attorneys, also provides no basis for vacatur of the Protective Order. Petitioners contend that the "sealing order would apparently block these forms of consultation . . ." (DE 28 at their clients. Copies of those signed acknowledgements to abide by the Protective Order were then to be provided "promptly" to the United States. To date, only Attorney Brad Edwards has provided a signed acknowledgement. 3 EFTA00177217 Case 9:08-cv-f ;-KAM Document 29 Entered on FLSD Docket 10B 38 Page 4 of 7 5.) First, there is no sealing order. Second, the Protective Order does not prevent petitioners from consulting with anyone; it only prevents them from disclosing the Agreement. Petitioners fail to mention why it is necessary for the National Alliance of Victims' Rights Attorneys to have the Agreement in hand, in order to meaningfully consult with them. Petitioners also assert that they would like to be able to reference the Agreement "in a parallel civil suit that is pending before this Court." (DE 28 at 5.) Given that the suit names Jeffrey Epstein as a defendant and is pending before the same district judge, it seems that litigation regarding the production and use of the Agreement should occur in that case, where the true party in interest, Jeffrey Epstein, is present and represented by counsel, rather than in a suit that was originally filed in July as an "Emergency Petition" under the various victims' rights laws. II. TILE GOVERNMENT ACCURATELY DESCRIBED THE PROVISIONS OF THE AGREEMENT, AT THE TIME THE RESPONSES WERE FILED WITH THE COURT. Petitioners castigate the Government for inaccurately describing the non- prosecution agreement. (DE 28 at 2-5.) They contend a particular provision cited by the Government does not appear in the copy of the Agreement produced to them. During the telephonic hearing on August 14, 2008, Government counsel advised the Court and petitioners' counsel that there was an ongoing dispute between the Government and Epstein's attorneys over what constituted the Agreement. Government counsel advised that, in its opinion, the Agreement had three parts. The first part was 4 EFTA00177218 Case 9:08-cv-1 ;-KAM Document 29 Entered on FLSD Docket 10/( 38 Page 5 of 7 executed in September 2007, the second part, an addendum, was executed in October 2007, and the third part was a December 2007 letter from the United States Attorney to Epstein's attorneys, suggesting a further modification of the Agreement. The Government advised the Court that it believed that all three parts comprised the Agreement, while it appeared that Epstein's attorneys were contending the Agreement was comprised only of parts one and two. At the commencement of the instant litigation, in July 2008, the Government believed the Agreement was comprised of all three parts mentioned above. This belief was expressed in victim notification letters, including one sent to Jane Doe #1,2 the Government's July 9, 2008 response to the Emergency Petition for Enforcement of Victims Rights Act, as well as the Declaration of A. Marie Villafafia, Assistant U.S. Attorney, which accompanied the Government's response. This belief continued until August 2008, when the Government advised Epstein's attorneys that the victims had 2The victim notification letter was provided to Epstein's attorneys prior to being sent, who approved the language of which the petitioners now complain. Thus, petitioners' repeated assertions that the Government made these errors intentionally and/or negligently are meritless. (See, e.a., DE 28 at 4-5 ("The Government apparently feels free to disclose to the victims one provision in the non-prosecution agreement that it believes it is to its advantage to disclose, but not others. The Government should not be permitted to pick and choose, particularly where it has inaccurately described the provision that it has chosen to disclose.") The Government seeks no "advantage" in this suit brought by the two victims. Furthermore, the petitioners' original emergency petition focused on their concern about the amount of jail time that Epstein would serve. The provision that they complain of now has no relation to jail time. Furthermore, petitioners aver that the October 2007 disclosure to Jane Doe #1 contained inaccurate information, but that disclosure was made before the December 2007 letter and, therefore, did not include anything related to the U.S. Attorney's now-defunct proposed amendment to the Agreement. 5 EFTA00177219 Case 9:08-cv-: 3-KAM Document 29 Entered on FLSD Docket 10/f 98 Page 6 of 7 demanded disclosure of the Agreement to them, and discussions ensued about what constituted the Agreement. Epstein's attorneys then told the Government that Epstein believed the Agreement consisted only of the first and second parts. 'These were the parts disclosed to petitioners pursuant to the Protective Order in compliance with the Court's order to compel production. The fact that an erroneous disclosure was inadvertently made to one petitioner after Epstein had already entered his guilty plea, was sentenced, and surrendered to begin serving his sentence does not create an injury where one did not exist before. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court deny Petitioners' Motion to Unseal the Non-Prosecution Agreement. Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY By: s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4th Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter.lee@usdoj.gov Attorney for Respondent 6 EFTA00177220 Case 9:08-cv-1 i-KAM Document 29 Entered on FLSD Docket 10P 38 Page 7 of 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 8, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney SERVICE LIST Jane Does 1 and 2'. United States Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Brad Edwards, Esq., The Law Offices of Brad Edwards & Associates, LLC 2028 Harrison Street, Suite 202 Hollywood, Florida 33020 (954) 414-8033 Fax: (954) 924-1530 7 EFTA00177221 EFTA00177222 Case 9:08-cv-f -KAM Document 28 Entered on FLSD Docket 09/; )8 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80736-CIV-MARRAIJOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, I UNITED STATES OF AMERICA, Respondent. VICTIM'S MOTION TO UNSEAL NON-PROSECUTION AGREEMENT COMES NOW the Petitioners, Jane Doe #1 and Jane Doe #2, by and through their undersigned attorneys, pursuant to the Crime Victim's Rights Act, 18 U.S.C. Section 3771 ("CVRA"), and file this motion to unseal the non-prosecution agreement that has been provided to their attorneys under seal in this case. The agreement should be unsealed because no good cause exists for sealing it. Moreover, the Government has inaccurately described the agreement in its publicly-filed pleadings, creating a false impression that the agreement protects the victims. Finally, the agreement should be unsealed to facilitate consultation by victims' counsel with others involved who have information related to the case. BACKGROUND As the court is aware, this action was brought by two crime victims (hereinafter referred to as "the victims") seeking protection of their rights under the Crime Victim's Rights Act, 18 U.S.C. § 3771. At the center of this action is an agreement between the United States and Jeffrey Epstein that (as described in earlier court pleadings publicly filed by the Government) involved EFTA00177223 Case 9:08-cv 6-KAM Document 28 Entered on FLSD Docket 09, )08 Page 2 of 8 Epstein's entry of guilty pleas to various state charges and an 18-month jail sentence, in exchange for which the U.S. Government apparently agreed to defer all federal prosecution — including any federal prosecution for the federal crimes committed against the victims. At a hearing held on August 14, 2008, the court ordered the Government to produce to counsel for the victims the non-prosecution agreement. That production, however, was to be done under protective order in the first instance. The agreement has now been produced. At the earlier hearing, the court recognized that the victims' counsel might at a later date seek to have the sealing lifted. That date has now arrived. ARGUMENT As the court envisioned might well happen, counsel for the victims now believe that sealing of the agreement is no longer appropriate. The non-prosecution agreement should now be unsealed for three reasons. 1. No Good Cause Has Been Shown for Sealing the Agreement. Having now reviewed the agreement, counsel for the victims can find no legitimate basis for the document to be scaled. Because it stands at the center of this litigation (as well as several related civil suits), the burden should fall on those who would keep the document sealed to show cause for doing so. No good cause has yet been shown. CI United Stalest Ochoa-Vasque, 428 F.3d 1015 (11th Cir. 2005) (to justify sealing of court records "a court must articulate the overriding interest along with findings specific enough that a reviewing court can determine whether the closure order was properly entered"). 2. The Government Has Inaccurately Described the Agreement. In its publicly-filed pleadings in this case, the Government has inaccurately 2 EFTA00177224 Case 9:08-cv-; i-KAM Document 28 Entered on FLSD Docket 09/: 38 Page 3 of 8 described the non-prosecution agreement, creating the false impression that it is more favorable to the victims than it actually is. Accordingly, the non-prosecution agreement should be unsealed so that the true state of affairs is reflected in the court's file. In its response to the victims' petition, the Government states that the non- prosecution agreement contains the following provision: Any person, who while a minor, was a victim of a violation of an offense enumerated in Title 18, United states Code, Section 2255, will have the same rights to proceed under Section 2255 as she would have had, if Mr. Epstein had been tried federally and convicted of an enumerate offense. For purposes of implementing this paragraph, the United States shall provide Mr. Epstein's attorneys with a list of individuals whom it was prepared to name in an Indictment as victims of an enumerated offense by Mr. Epstein. Any judicial authority interpreting this provision, including any authority determining which evidentiary burdens if any a plaintiff must meet, shall consider that it is the intent of the parties to place these identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No more; no less. Govt's Resp. to Victim's Emergency Petition for Enforcement of Crime Victim's Right at 4. The sworn declaration of the Assistant U.S. Attorney handling this matter also recounts the same language. See Declaration of A. Marie Villafafia in Support of United States' Response to Victims' Emergency Petition at 3-4. The sworn declaration also states that victims were told about this language in October 2007. See Declaration of A. Marie Villafafia at 4 ("In October 2007, shortly after the agreement was signed, four victims were contacted and these provisions were discussed"). On July 9, 2008, the victims received notice from the Government that the above-described provision was negotiated on behalf of the victims for their protection and was 3 EFTA00177225 Case 9:08-cv- 5-KAM Document 28 Entered on FLSD Docket 09/ /08 Page 4 of 8 thus contained in the non-prosecution agreement.1 Having now reviewed the non-prosecution agreement, the Government's response to the victims' motion and the accompanying sworn declaration are simply untrue. The above- quoted provision simply does not appear in the agreement anywhere. It is true that the non- prosecution agreement contains a provision bearing on the same subject. However, this provision has a number of qualifying provisos that make it far less favorable to the victims than the above-described provision. (To avoid filing a separate, sealed pleading laying out the differences, counsel for the victims have simply described the differences in general terms. We trust that the Government, in its response, will agree that it has erroneously described the agreement to the court and the victims.) The Government should be required to correct its previously-filed pleadings to accurately recount the non-prosecution agreement that it reached with Epstein. Moreover, the Government should also be required to state forthrightly whether through the last nine months, it gave the victims (like the court) inaccurate information about what the non-prosecution agreement entailed. But most important, because the current sealing of the non-prosecution agreement creates a false and deceptive appearance about the agreement that the Government has actually reached with Epstein, the agreement should be unsealed. Indeed, it should be noted that sealing of materials in this case appears to operate in a rather peculiar fashion. The Government apparently feels free to disclose to the victims one provision in the non-prosecution agreement that it believes it is to its advantage to disclose, but not others. The Government should not be permitted to pick and choose, particularly where it I The Government has recently provided a new notice to the victims, containing different language. 4 EFTA00177226 Case 9:08-cv• 6-KAM Document 28 Entered on FLSD Docket 09, /08 Page 5 of 8 has inaccurately described the provision that it has chosen to disclose. 3. The Non-Prosecution Agreement Should be Unsealed To Facilitate Effective Representation of the Victims in this Action and Related Civil Actions. The sealing order bars the victims' counsel from "disclos[ing] the Agreement or its terms to any third party absent further court order, following notice to and an opportunity for Epstein's counsel to be heard." Order to Compel Production and Protective Order at I. Victims' counsel have scrupulously abided by that restriction. Victims' counsel would, however, now like to discuss the terms of the non-prosecution agreement with third parties in making a determination about how best to proceed in this action, including what remedies to seek for the violations of victims' rights that have occurred. Counsel, therefore, respectfully seek the "further court order" that the sealing order envisions. In particular, victims' counsel would like to discuss the agreement with other victims of Epstein and their attorneys to determine whether they were likewise provided with inaccurate information about the nature of the plea agreement. Victims' counsel would also like to discuss possible legal responses to the Government with other victims' rights attorneys, including in particular the National Alliance of Victims' Rights Attorneys for possible legal approaches. See http://www.ncvli.org/navra.html. The sealing order would apparently block these forms of consultation, or perhaps require such burdensome non-disclosure obligations as to make the consultation difficult or impractical. Finally, victims' counsel would like to refer to the non-prosecution agreement in a parallel civil suit that is pending before this court. See Jane Doe Jeffrey Epstein, United States District Court, Southern District of Florida, Case No.: 08-CIV- 80893-MARRA-JOHNSON. To facilitate all these discussions, the non-prosecution agreement 5 EFTA00177227 Case 9:08-cv-E -KAM Document 28 Entered on FLSD Docket 09/; )8 Page 6 of 8 should be unsealed. NOTICE TO EPSTEIN It is possible that Jeffrey Epstein will object to the unsealing of the agreement. Accordingly, the court should provide notice of this motion to Jeffrey Epstein, through counsel. Jeffrey Epstein's counsel has entered an appearance in several related civil suits, including Jane Doe I Jeffrey Epstein, United States District Court, Southern District of Florida, Case No.: 08- CIV-80893-MARRA-JOHNSON. Although Epstein's counsel has not entered an appearance in this matter, as a courtesy to them, counsel for the victims' will provide a copy of this pleading at the address indicated in the related civil suit. CONCLUSION The non-prosecution agreement should be unsealed. DATED this 25th day of September 2008. Respectfully Submitted, THE LAW OFFICE OF BRAD EDWARDS & ASSOCIATES, LLC By: s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioners Florida Bar No. 542075 2028 Harrison Street Suite 202 Hollywood, Florida 33020 Telephone: 954-414-8033 Facsimile: 954-924-1530 E-Mail: be®bradedwardslaw.com 6 EFTA00177228 Case 9:08-cv-f ;-KAM Document 28 Entered on FLSD Docket 09/: )8 Page 7 of 8 Paul G. Cassell Attorney for Petitioners Pro Mac Vice 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: cassellp@law.utah.edu Jay C. Howell, Esquire Attorney for Petitioners Pro Hac Vice 644 Cesery Boulevard Suite 250 Jacksonville, Florida 32211 Telephone: 904-680-1234 Facsimile: 904-680-1238 E-Mail: jay@jayhowell.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 25, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. SERVICE LIST Jane Doe 1 and Jane Doe 2 Case No.: 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Dexter A. Lee, Assistant U.S. Attorney 99 N.E. 4th Street Miami, Florida 33132 Telephone: 305-961-9320 Facsimile: 305-530-7139 7 EFTA00177229 Case 9:08-cv-: 3-KAM Document 28 Entered on FLSD Docket 09/: 38 Page 8 of 8 Ann Marie C. Villafana, AUSA United States Attorney's Office 500 South Australian Avenue Suite 400 West Palm Beach, Florida 33401 s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioner Florida Bar No. 542075 I HEREBY FURTHER CERTIFY that on September 25, 2008, a true and correct copy of the above and foregoing document is being provided by United States mail to: Jack Alan Goldberger, Esquire Atterburty, Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, Florida 33401 jagesq@bellsouth.net Michael R. Tein, Esquire Lewis Tein, P.L. 3059 Grand Avenue Suite 340 Coconut Grove, Florida 33133 teinAlewistein.com Robert D. Critton, Jr., Esquire Michael J. Pike, Esquire Burman, Critton, Limier & Coleman, LLP 515 North Flagler Drive Suite 400 West Palm Beach, Florida 33401 rcrit@bciclaw.com invike@bc1claw.com s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioner Florida Bar No. 542075 8 EFTA00177230 Case 9:08-cv-8( KAM Document 28-2 Entered on FLSD Docket 09, )08 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80736-CIV-MARRAIJOFINSON JANE DOE #1 AND JANE DOE #2, Petitioners, 1. UNITED STATES OF AMERICA, Respondent. ORDER TO UNSEAL NON-PROSECUTION AGREEMENT THIS CAUSE comes before the Court on the Petitioners' Motion to Unseal Non- Prosecution Agreement between the United States Attorney's Office for the Southern District of Florida and Jeffrey Epstein. After consideration of the Motion and the record, it is ORDERED AND ADJUDGED that the Petitioners' Motion is GRANTED and the Non- Prosecution Agreement between the United States Attorney's Office for the Southern District of Florida and Jeffrey Epstein is hereby ordered to be unsealed. DONE AND ORDERED in Chambers, in West Palm Beach, Palm Beach County, Florida, this day of , 2008. KENNETH A. MARRA UNITED STATES DISTRICT COURT Copies furnished to: all counsel of record EFTA00177231 ay 9 EFTA00177232 Case 9:08-cv-E -KAM Document 27 Entered on FLSD Docket 08/2 ,8 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA ATTACHMENT(S) NOT SCANNED PLEASE REFER TO COURT FILE MAINTAINED IN THE OFFICE WHERE THE JUDGE IS CHAMBERED CASE NO. 08-80736-CV KAM DE# K DUE TO POOR QUALITY, THE ATTACHED DOCUMENT IS NOT SCANNED K VOLUMINOUS (exceeds 999 pages = 4 inches) consisting of (boxes, notebooks, etc.) K BOUND EXTRADITION PAPERS K ADMINISTRATIVE RECORD (Social Security) K ORIGINAL BANKRUPTCY TRANSCRIPT K STATE COURT RECORD (Habeas Cases) X SOUTHERN DISTRICT TRANSCRIPTS K LEGAL SIZE K DOUBLE SIDED K PHOTOGRAPHS K POOR QUALITY (e.g. light print, dark print, etc.) K SURETY BOND (original or letter of undertaking) K CD's, DVD's, VHS Tapes, Cassette Tapes K OTHER = EFTA00177233 Case 9:08-cv 6-KAM Document 27 Entered on FLSD Docket 08, )08 Page 2 of 2 Page 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA REC'D byhtV• D.0 AUG 2 5 2C08 4 JANE DOE, ) ) Petitioner, Case No. 08-80736-CIV-MARRA STEVENM. LARIMORE CLERKU.S DIST CT S.D.OFLA-M.Mmi 5 6 ) UNITED STATES OF AMERICA,) Respondent. West Palm Beach, Florida : August 14, 2008 1u 11 1; 13 TRANSCRIPT OF HEARING • BEFORE THE. HONORABLE KENNETH A. MARRA U.S. DISTRICT JUDGE 14 Appearances: 15 FOR THE PETITIONER Bradley J. Edwards, ESQ., and 16 Paul G. Cassell, ESQ. 1? FOR THE RESPONDENT Dexter Lee, AUSA, and 10 Ann Marie C. Villafana, AUSA 14 Reporter Stephen W. Franklin, RMR, CRR, ;1 (561)514-3768 Official Court Reporter 701 Clematis Street, Suite 417 West Palm Beach, Florida 33401 2'2 RIEDby D.C. AUG 2 7 2008 STIV[N M. I.P.MmOlIC CLEPR VA NET. CT 5.o. 00 :LA WPM EFTA00177234 wow SERIES RECYCLED. xis c EFTA00177235 Case 9:08-cv-£ -KAM Document 26 Entered on FLSD Docket 08/2 )8 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 08-80736-CIV-MARRA/JOHNSON IN RE: JANE DOES 1 AND 2, Petitioners. ORDER TO COMPEL PRODUCTION AND PROTECTIVE ORDER THIS CAUSE comes before the Court on the Petitioners' ore tenus motion seeking the production of the Non-Prosecution Agreement between the United States Attorney's Office for the Southern District of Florida ("USAO") and Jeffrey Epstein ("Epstein"). After consideration of the Motion, the arguments of the parties, and the record, it is ORDERED AND ADJUDGED that the Petitioners' Motion is GRANTED. The USAO shall produce the Non-Prosecution Agreement, including any modifications and addenda thereto, in accordance with the following procedures: (a) The USAO shall produce a copy of the Non-Prosecution Agreement, including any modifications and addenda thereto (collectively referred to as the "Agreement"), to the attorneys for Petitioners. (b) Petitioners and their attorneys shall not disclose the Agreement or its terms to any third party absent further court order, following notice to and an opportunity for Epstein's counsel to be heard. (c) Before counsel for petitioners show the Agreement to their clients or discuss the specific terms with them, they must provide a copy of this Order to petitioners, who must review and acknowledge their receipt of, and agreement to abide by, the terms of the Order. Counsel for petitioners must promptly provide a copy of that acknowledgment to the USAO. (d) If any individuals who have been identified by the USAO as victims of EFTA00177236 Case 9:08-cv- 3-KAM Document 26 Entered on FLSD Docket 08/' 08 Page 2 of 2 Epstein and/or any attorney(s) for those individuals request the opportunity to review the Agreement, then the USAO shall produce the Agreement to those individuals, so long as those individuals also agree that they shall not disclose the Agreement or its terms to any third party absent further court order, following notice to and an opportunity for Epstein's counsel to be heard (e) Prior to producing the documents to any other individuals who have been identified by the USAO as victims of Epstein and/or any attorney(s) for those individuals, a copy of this Order must be provided to said individuals, who must review and acknowledge their receipt of, and agreement to abide by, the terms of this Order. Counsel for petitioners must promptly provide a copy of that acknowledgment to the USAO. DONE and ORDERED in Chambers, in West Palm Beach, Palm Beach County, Florida, this 21" day of August, 2008. KENNETH A. MARRA UNITED STATES DISTRICT JUDGE Copies furnished to: all counsel of record By signing below, I certify that I have reviewed and agree to be bound by the terms of this Order. Dated: Signed by: Printed Name: 2 EFTA00177237 Ai; 0 4 EFTA00177238 Case 9:08-cv. 3-KAM Document 23 Entered on FLSD Docket 08i 108 Page 1 of 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 08-80736-CIV-MARRA/JOHNSON IN RE: JANE DOES 1 & 2, Petitioner ORDER PLEASE TAKE NOTICE that this cause has been set for a status conference on Thursday, August 14, 2008, at 3:30 p.m. before United States District Judge Kenneth A. Marra. The hearing shall be held in Courtroom 4 at the United States Courthouse, 701 Clematis Street, West Palm Beach, Florida. The parties may appear by telephone.' DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 136 day of August, 2008. erl KENNETH A. MARRA United States District Judge Copies furnished to: all counsel of record 'Any party wishing to appear by telephone must contact Chambers at 561-514-3765 by 12:00 noon on August 14, 2008, to make the appropriate arrangements. EFTA00177239 EFTA00177240 Case 9:08-cv-£ -KAM Document 22 Entered on FLSD Docket 08/' )8 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOES #1 and #2 Petitioners, UNITED STATES Respondent. GOVERNMENT'S RESPONSE TO PETITIONERS' REQUEST FOR NON-PROSECUTION AGREEMENT AND REPORT OF INTERVIEW Respondent United States, by and through its undersigned counsel, files its Response to Petitioners' Request for Non-Prosecution Agreement and Report of Interview, and states: In their Response to Government's Notice to Court Regarding Absence of Need for Evidentiary Hearing and Motion for Production of Non-Prosecution Agreement and Report of Interview (D.E. 19), petitioners seek an order compelling the Government to produce the Non- Prosecution Agreement with Jeffrey Epstein (D.E. 19 at 11-13), and the Report of Interview with Jane Doc # 1 (D.E. 19 at 13-14). The Government is unable to voluntarily produce the Non-Prosecution Agreement because the Agreement contains a clause where the parties expressed their anticipation that the Agreement would not be made part of any public record. The Government believes this clause in the Agreement precludes it from voluntarily producing the Agreement, as requested by petitioners. EFTA00177241 Case 9:08-cv. 6-KAM Document 22 Entered on FLSD Docket 08, )08 Page 2 of 3 As to petitioners' request for the Report of Interview with Jane Doe # I, counsel for the Government has spoken with FBI Special Agents Nesbitt Kurykendall and Jason Richards, who have advised that no Report of Interview was prepared subsequent to their meeting with Jane Doe # 1 in October 2007, to discuss the Non-Prosecution Agreement entered into with Jeffrey Epstein. Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY By: s/ Dexter A. Lce DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4th Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter.leeausdoi.gov Attorney for Respondent 2 EFTA00177242 Case 9:08-cv-E -KAM Document 22 Entered on FLSD Docket 08/1 )8 Page 3 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 13, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney SERVICE LIST Jane Does 1 and 2'. United States, Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Brad Edwards, Esq., The Law Offices of Brad Edwards & Associates, LLC 2028 Harrison Street, Suite 202 Hollywood, Florida 33020 (954) 414-8033 Fax: (954) 924-1530 3 EFTA00177243 A EFTA00177244 Case 9:08-ctj bicAM D cument 20 Entered on FLSD Docket 08/1 )8 Page 1 of 7 \\I Naist Pi PP' \C‘ ‘VIr• UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 08-80736-CIV-Marra/Johnson In re: Jane Doe #I, and Jane Doe #2, Petitioners. FILED by 0 C AUG 0 8 2008 STEVEN M. LARIIAORE CLERK U.S. DMT. CT S.D. OF FLT.. W.QB MOTION FOR LIMITED APPEARANCE, CONSENT TO DESIGNATION AND REQUEST TO ELECTRONICALLY RECEIVE NOTICES OF ELECTRONIC FILING In accordance with Local Rules 4.6 of the Special Rules Governing the Admission and Practice of Attorneys of the United States District Court for the Southern District of Florida, the undersigned respectfully moves for the admission of Jay C. Howell for purposes of limited appearance as co-counsel on behalf of Jane Does # I and #2, herein, in the above-styled case only, and pursuant to Rule 2B, Southern District of Florida, CM/ECF Administrative Procedures, to permit Jay C. Howell to receive electronic filings in this case, and in support thereof states as follows: I . While Jay C. Howell, is not admitted to practice in the Southern District of Florida, he is a member in good standing of the Florida Bar and the bar of the U.S. District Court for the Middle District of Florida. 2. Movant, Brad Edwards, of the law firm of The Law Offices of Brad Edwards & Associates, is a member in good standing of The Florida Bar and the United States District Court for the Southern District of Florida, maintains an office in this State for the practice of law, and will shortly he filing the appropriate application to be authorized to file through the Court's electronic filing system. Movant consents to be designated as a member of the Bar of this Court with whom the Court and opposing counsel may readily communicate regarding the conduct of the case, upon EFTA00177245 Case 9:08-cv• 8-KAM Document 20 Entered on FLSD Docket 08/ 08 Page 2 of 7 Noe set whom filings shall be served, who shall be required to electronically file all documents and things that may be filed electronically, and who shall be responsible for filing documents in compliance with the CM/ECF Administrative Procedures. See Section 2B of the CM/ECF Administrative Procedures. 3. In accordance with the local rules of this Court, Jay C. Howell, has made payment (enclosed) of this Court's $75 admission fee. A certification in accordance with Rule 4B is attached hereto. 4. Jay C. Howell, by and through designated counsel and pursuant to Section 213, Southern District of Florida, CM/ECF Administrative Procedures, hereby requests the Court to provide Notice of Electronic Filings to Jay C. Howell, at email address: jayQiavhowell.com. WHEREFORE, Brad Edwards, Esquire, moves this Court to enter an Order permitting Jay C. Howell to appear before this Court on behalf of Jane Doe, for all purposes relating to the proceedings in the above-styled matter and directing the Clerk to provide notice of electronic filings to Jay C. Howell. Date: August 6, 2008 Respectfully submitted, Brad Edwards, Esquire Florida Bar #542075 be@bradedwardslaw.com 2028 Harrison Street Suite 202 Hollywood, Florida 33020 Telephone: 954-414-8033 Facsimile: 954-924-1530 Attorney for Jane Doe #1 & #2 EFTA00177246 Case 9:08-cv-f -KAM Document 20 Entered on FLSD Docket 08/1 /8 Page 3 of 7 N. 09 NI•09 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings was served by mail on August 6. 20O8 , on all counsel or parties of record on the service list. Brad Edwards, Esquire EFTA00177247 Case 9:08-cv-f -KAM Document 20 Entered on FLSD Docket 08/1 18 Page 4 of 7 bit Case No.: 08-80736 SERVICE LIST Ann Marie C. Villafana Assistant U.S. Attorney United States Attorney's Office 500 South Australian Avenue Suite 400 West Palm Beach, FL 33401 Dexter Lee Assistant U.S. Attorney United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 EFTA00177248 One 9:08-cv. 8-KAM Document 20 Entered on FLSD Docket 08, ,08 Page 5 of 7 Ns, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 08-80736 In re: Jane Doe, et at Petitioners. CERTIFICATION OF JAY C. HOWELL Jay C. Howell, pursuant to Rule 4B of the Special Rules Governing the Admission and Practice of Attorneys, hereby certifies that (I) I have studied the Local Rules of the United States District Court for the Southern District of Florida; and (2) I am a member in good standing of the Florida Bar and the bar for the U.S. District Court for the Middle District of Florida. EFTA00177249 Case 9:08-cv- 3-KAM Document 20 Entered on FLED Docket 08/ 08 Page 6 of 7 CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings was served by mail on August 6, 2008 , on all counsel or parties of record on the service list. Brad Edwards, Esquire Florida Bar #542075 betiamdedwardslaw.eom 2028 Harrison Street Suite 202 Hollywood, Florida 33020 Telephone: 954-414-8033 Facsimile: 954-924-1530 Attorney for Jane Doe # 1 and #2 EFTA00177250 Case 9:08-cv-f -KAM Document 20 Entered on FLED Docket 08/1 /8 Page 7 of 7 Nee Case No.: 08-80736 SERVICE LIST Ann Marie C. Villafana Assistant U.S. Attorney United States Attorney's Office 500 South Australian Avenue Suite 400 West Palm Beach, FL 33401 Dexter Lee Assistant U.S. Attorney United States Attorney's Office 99 N.E. 4th Street Miami. Florida 33132 EFTA00177251 90000 SERIES RECYCLED@ JO% P.C.W. EFTA00177252 Case 9:08-cv-8 -KAM Document 19 Entered on FLSD Docket 08/C )8 Page 1 of 16 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, 1. UNITED STATES OF AMERICA, Respondent. VICTIMS' RESPONSE TO GOVERNMENT'S "NOTICE TO COURT REGARDING ABSENCE OF NEED FOR EVIDENTIARY HEARING" AND MOTION FOR PRODUCTION OF NON-PROSECUTION AGREEMENT AND OF REPORT OF INTERVIEW COME NOW the Petitioners, Jane Doe #1 and Jane Doe #2 (the "victims"), by and through their undersigned attorneys to file this Response to the Government's document styled as "Notice to Court Regarding Absence of Need for Evidentiary Hearing" as follows: INTRODUCTION At the conclusion of the oral argument on the victims' petition, victims Jane Doe ill and Jane Doe #2 joined the Government in expressing to the Court a desire to work out a set of stipulated facts regarding this case. Towards that end, the Government sent a proposed set of stipulated facts to the victims' counsel (Exhibit 1 to this pleading) and, in turn, the victims' sent a responsive letter raising concerns about some of the Government's proposed stipulated facts and suggesting some additions and modifications (Exhibit 2 to this pleading). The victims also requested copies of two relevant documents from the Government: (I) the Non-Prosecution 1 EFTA00177253 Case 9:08-cv-8 -KAM Document 19 Entered on FLSD Docket 08/C 18 Page 2 of 16 Agreement with defendant Epstein that is at the center of this litigation and (2) the FBI's report of interview concerning a meeting with Jane Doe #1. These requests were also made in several telephone conversations with the attorney for the Government. Remarkably, rather than respond to the victims' suggestions, the Government has now suddenly reversed course and filed a terse document claiming an "absence of a need" for an evidentiary hearing. If anything, however, the victims' discussions with the Government have made clear that the Court should not enter judgment for the Government but rather should enter immediate judgment for the victims that the Government violated their rights under the CVRA. The Court should then schedule a hearing to determine the proper remedy for the violation of the victims' rights. In particular, the Government now apparently admits that the Non-Prosecution Agreement it struck with Epstein in September 2007 contained an "express confidentiality provision." See Exhibit 1 to this pleading, Government's Proposed Stipulated Facts, at page 3, paragraph 6. Assuming that the Government honored its agreement with the defendant (a fact that the victims have proposed to stipulate to), the Government could not have "conferred" with the victims about the proposed arrangement over the next nine months because doing so would have violated its confidentiality obligations with the defendant. As a result, the Government plainly has not afforded the victims' their right to "confer" about the proposed arrangement under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771(a)(5). In addition, the Government effectively misled the victims that it had reached a Non-Prosecution Agreement with Epstein, plainly violating the victims' rights to be treated with "fairness" under the CVRA, 18 U.S.C. §3771(a)(8). The Court should therefore find that the victims' rights have been violated. The Court should also order the Government to produce the Non-Prosecution Agreement 2 EFTA00177254 Case 9:08-cv-8 -KAM Document 19 Entered on FLSD Docket 08/C 18 Page 3 of 16 to the victims. The victims are entitled to know what disposition has been made in their case. Moreover, that Agreement purportedly contains provisions pertaining to the civil liability of Epstein for crimes he has committed against Jane Doe #1 and Jane Doe #2. Epstein obviously knows what those provisions are. The victims are entitled to see those provisions and the surrounding document as well. The Court should also order the Government to produce a report of interview with Jane Doe #1 from about October 26, 2007, during which the Government apparently claims that it discussed the plea arrangement with the victims. Finally, after these documents are produced to the victims and the Court enters judgment that the victims' rights have been violated, the Court should schedule a hearing to determine the appropriate remedy for the violations of the victims' rights. THE VICTIMS' PROFFERED FACTS The Government's latest submission takes the position that "after consideration" it is now unnecessary to hold an evidentiary hearing. The Government apparently believes that the Court could rule in its favor based on just two submitted undisputed facts. In taking this position, the Government apparently believes that there are no set of facts that could sustain judgment for the victims. To the contrary, however, the available facts require judgment for the victims that their rights under the CVRA have been violated. Having attempted to confer with the Government about the facts in this case, counsel for the victims respectfully submit the following — and more complete -- set of facts that, on information and belief, they could establish if given the opportunity to do so: In 2006, at the request of the Palm Beach Police Department, the Federal Bureau of 3 EFTA00177255 Case 9:08-cv-E -KAM Document 19 Entered on FLSD Docket 08/C )8 Page 4 of 16 Investigation opened an investigation into allegations that Jeffrey Epstein had used facilities of interstate commerce to induce young girls between the ages of thirteen and seventeen to engage in prostitution (among other offenses). The case was presented to the United States Attorney's Office for the Southern District of Florida, which accepted the case for investigation. Jane Doe #1 and Jane Doe #2 were victims of sex crimes committed by Epstein while they were minors. The U.S. Attorney's Office's investigation soon revealed that Epstein had committed federal sex crimes against Jane Doe #1 and Jane Doe #2. This made Jane Doe #1 and Jane Doe #2 "victims" protected by the Crime Victim's Rights Act, 18 U.S.C. § 3771. Accordingly, the U.S. Attorney's Office arranged to have victim notification letters sent to Jane Doe #1 and Jane Doe #2. For example, on about June 7, 2007, Assistant U.S. Attorney A. Marie Villafafla sent a letter to Jane Doc #1 that began: "Pursuant to the [CVRAJ, as a victim and/or witness of a federal offense, you have a number of rights." The letter then listed the various rights of victims under the CVRA. The U.S. Attorney's Office would not have sent such a letter to Jane Doe #1 if it did not believe that she was a victim and was protected by the CVRA. By mid-2007, the U.S. Attorney's Office had ample information to file an indictment against Epstein charging multiple federal sex offenses. It elected not to file an indictment but instead to engage in pre-indictment plea discussions with Epstein. In September 2007, Epstein and the U.S. Attorney's Office reached an agreement blocking any federal prosecution of the federal offenses he had committed. This Non- Prosecution Agreement barred federal charges for Epstein's sex offenses in favor of prosecution by Florida, so long as several preconditions were met. Those included a conviction on a state sex offense that reflected that the victims were minors at the time the crimes occurred and that 4 EFTA00177256 Case 9:08-cv-E -KAM Document 19 Entered on FLSD Docket 08/C 18 Page 5 of 16 would require sex offender registration. While the Agreement barred federal criminal prosecution, it envisioned that the victims would pursue a civil rights action against Epstein for his sexual offenses against them. Most important for present purposes, the Agreement contained an express confidentiality provision, which prevented the Government from disclosing the terms of the Agreement to the victims or others before it was consummated. The Agreement was subsequently modified in October and December 2007. The Agreement has several addenda that are relevant to the Agreement. (To date, although requested to do so, the Government has refused to provide to the victims the final Non-Prosecution Agreement or any of its earlier versions.) Through his attorneys, Epstein was aware of the confidentiality provision and of the fact that it would block the Government from conferring with the victims about the plea arrangement. On about October 26, 2007, FBI Special Agents E. Nesbitt Kuyrkendall and Jason Richards met in person with Jane Doe # I at a restaurant. The Special Agents explained that there had been discussions with Epstein about a possible resolution of the charges against him. Consistent with the express confidentiality provision in the Non-Prosecution Agreement, the Special Agents did not disclose that the arrangement would bar any federal prosecution of Epstein. Nor did the Agents disclose that the Non-Prosecution Agreement had been finalized. Jane Doe #1's reasonable perception of the meeting was that only the State part of the Epstein investigation had been resolved, and that the federal investigation would continue, possibly leading to a federal prosecution. (While the Government has a report of interview regarding this meeting with the victim that could confirm the victims' understanding of the facts, the Government has refused Jane Doe #1's request to see the report.) 5 EFTA00177257 Case 9:08-cv-E -KAM Document 19 Entered on FLSD Docket 08/C )8 Page 6 of 16 Following the signing of the Non-Prosecution Agreement and the modifications thereto by the U.S. Attorney's Office for the Southern District of Florida, Epstein received an unusual benefit that the Government does not ordinarily provide to other criminal defendants: his performance was delayed while he was given an opportunity to seek higher level review within the Department of Justice in Washington, D.C. On around January 10, 2008, Jane Doe #1 and Jane Doe #2 received letters from the FBI advising them that "Whis case is currently under investigation. This can be a lengthy process and we request you continued patience while we conduct a thorough investigation." The FBI sent these letters, under the direction of the U.S. Attorney's Office, because it believed that the CVRA applied to Jane Doe #1 and Jane Doe #2. The FBI did not notify Jane Doe #1 or Jane Doe #2 that the Non-Prosecution Agreement had been concluded four months earlier. Jane Doe #1 and Jane Doe #2 reasonably understood that a federal criminal investigation of Epstein was on-going and that federal criminal charges were possibility. At the time, Jane Doe #1 and Jane Doe #2 believed that criminal prosecution of Epstein was extremely important. They also desired to be consulted by the FBI and/or other representatives of the federal government about the prosecution of Epstein. In light of the letters that they had received around January 10 (among other things), they reasonably believed that they would be contacted before the federal government reached any final resolution of that investigation. In the spring 2008, Jane Doe #1 contacted the FBI because Epstein's counsel was attempting to take her deposition and private investigators were harassing her. Assistant U.S. Attorney A. Marie VillafafSa secured pro bono counsel to represent Jane Doe #1 and several other identified victims in connection with the criminal investigation. Pro bono counsel was able to 6 EFTA00177258 Case 9:08-cv-8 •KAM Document 19 Entered on FLSD Docket 08/C i8 Page 7 of 16 assist Jane Doe #1 in avoiding the improper deposition. AUSA Villafafia secured pro bono counsel by contacting Meg Garvin, Esq. of the National Crime Victims' Law Institute in Portland, Oregon, which is based in the Lewis & Clark College of Law. During the call, Ms. Garvin was not advised about the Non-Prosecution Agreement. In mid-June 2008, Mr. Edwards contacted Assistant U.S. Attorney Villafafia to inform her that he represented Jane Doe #1 and, later, Jane Doe #2. Mr. Edwards asked to meet to provide information about the federal crimes committed by Epstein, hoping to secure a significant federal indictment against Epstein. AUSA Villafafia and Mr. Edwards discussed the possibility of federal charges being filed. At the end of the call, AUSA Villafafia asked Mr. Edwards to send any information that he wanted considered by the U.S. Attorney's Office in determining whether to file federal charges. Because of the confidentiality provision in the Non-Prosecution Agreement, Mr. Edwards was not informed of the Agreement's existence. Mr. Edwards was also not informed that any resolution of the criminal matter was imminent. On July 3, 2008, Mr. Edwards sent to AUSA Villafafia a letter, a true and correct copy of which is attached as Exhibit 3. In the letter, Mr. Edwards indicated his desire that federal charges be filed against defendant Epstein. In particular, he wrote on behalf of his clients: "We urge the Attorney General and our United States Attorney to consider the fundamental import of the vigorous enforcement of our Federal laws. We urge you to move forward with the traditional indictments and criminal prosecution commensurate with the crimes Mr. Epstein has committed, and we further urge you to take the steps necessary to protect our children from this very dangerous sexual predator." When Mr. Edwards wrote this letter, he still had not been made aware that a Non-Prosecution Agreement had been reached with Epstein. 7 EFTA00177259 Case 9:08-cv-E -KAM Document 19 Entered on FLED Docket 08/C )8 Page 8 of 16 On about July 3, 2008, Jane Doe #1 and Jane Doc #2 learned, through telephones conversations had between Mr. Edwards and AUSA Villafafia, that the U.S. Attorney's Office and Epstein might be in the process of finalizing some sort of plea arrangement. Accordingly, they filed an emergency motion seeking to protect their rights under the CVRA, including in particular their right to confer about the proposed plea arrangement. Mr. Edwards — and thus his clients -- first learned of the Non-Prosecution Agreement on or after July 9, 2008, when the Government filed its responsive pleading to Jane Doe's emergency petition. That pleading was the first public mention of the non-prosecution agreement and the first disclosure to Mr. Edwards and his clients. Epstein, through his attorneys, knew that the victims had not been informed about the plea arrangement. On July 9, 2008, AUSA Villafafia sent a victim notification to Jane Doe #1 via her attorney, Mr. Edwards, which is attached as Exhibit 6 to the Villafafia Declaration. That notification contains a written explanation of some of the terms of the Non-Prosecution Agreement between Epstein and the U.S. Attorney's Office. A full copy of the terms was not provided. This was the first time that Jane Doe #1 was told that the arrangement blocked any possibility of federal criminal charges being filed against Epstein. A notification was not provided to Jane Doe #2 because the agreement limited Epstein's liability to victims whom the United States was prepared to name in an indictment. On July I I, 2008, the Court held a hearing on the victims' emergency motion. During the hearing, the Government discussed in open court various provisions of the Non-Prosecution Agreement. At the conclusion of the hearing, victims' counsel and the Government agreed to 8 EFTA00177260 Case 9:08-cv-8' KAM Document 19 Entered on FLSD Docket 08/0 8 Page 9 of 16 confer in an effort to determine the undisputed facts of the fact. The Court took the motion under advisement. On July 16, 2008, the Government sent to Mr. Edwards a proposed set of undisputed facts, which is attached to this pleading as Exhibit 1. On July 17, 2008, Mr. Edwards sent a response to the Government, which is attached to this pleading as Exhibit 2. The response made various suggestions to the proposed undisputed facts. The response also requested a copy of the Non-Prosecution Agreement and the Report of Interview with Jane Doe #1. On July 29, 2008, rather than attempt to work with victims' counsel to draft a set of undisputed facts, the Government filed its "Notice to Court Regarding Absence of Need for Evidentiary Hearing." At all times material to this statement of facts, it would have been easily practical and feasible for the Federal Government to inform Jane Doe #1 and Jane Doe #2 of the details of any proposed plea agreement with Epstein, including in particular the details of the Non-Prosecution Agreement. The reason that AUSA Villafafla and the FBI agents acting with her did not provide this information to Jane Doe #1 and Jane Doe #2 was because of the express confidentiality provision that had been entered into by the Federal Government and Epstein. This provision was requested by Epstein. The Government was under no obligation to enter into such an arrangement and would have been statutorily forbidden from entering into such an arrangement by the CVRA's requirement that it "confer" with the victims about any disposition of their cases. 9 EFTA00177261 Case 9:08-cv-8( <AM Document 19 Entered on FLSD Docket 08/01 3 Page 10 of 16 THE GOVERNMENT SHOULD BE DIRECT D TO CONFER WITH THE VICTIMS REGARDING THE UNDISPUTED FACTS OF THE CASE The Government should be directed to confer with the victims about the facts in this case, rather than allowed to obscure the facts with its proposed "notice" that an evidentiary hearing is unnecessary. The reason that the Government abruptly terminated discussions about the facts with the victims seem obvious: The facts, if revealed, would plainly demonstrate that the victims did not receive their right under the CVRA to confer with the Government and to be treated fairly. The victims will not repeat all of their arguments from their earlier pleadings but would simply highlight for the Court the point that this case already reeks of favored treatment for a billionaire sex offender who has substantial influence. Regardless of how the Court proceeds, it should at least do so on the basis of fully developed factual record so that the victims and the public can be assured that justice has been done. If anything, the facts in this case now call for immediate judgment in favor of the victims. Based on the Government's proposed stipulated facts (Exhibit 1 to this pleading), it is now obvious that the Government could not have fulfilled its statutory obligations to confer with the victims. As now admitted by the Government, in September 2007, it had entered into a Non- Prosecution Agreement with Epstein containing what it describes as "an express confidentiality provision." While the Government has refused to disclose the text of this provision (or, indeed, the Non-Prosecution Agreement itself), it is apparent that the Government could not have conferred with the victims about the Agreement while abiding by the confidentiality provision. Likewise it is now apparent that the Government has not fulfilled its statutory obligation to treat the victims with fairness. The Government reached the Non-Prosecution Agreement with 10 EFTA00177262 Case 9:08-cv-8C <AM Document 19 Entered on FLSD Docket 08/01 3 Page 11 of 16 Epstein in September 2007, yet affirmatively concealed that Agreement from the victims through a series of misleading statements and representations over the next nine months. For example, on around January 10, 2008, Jane Doe #1 and Jane Doe #2 received letters from the FBI advising them that "[t]his case is currently under investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation." As the Government well knew, however, a Non-Prosecution Agreement had already been reached with Epstein at that time — a fact not disclosed in the letter. The victims therefore request judgment in their favor that their rights under the CVRA have been violated. In the alternative, the victims request that the Court direct that the Government confer in good faith with the victims to attempt to reach a set of stipulated facts that might form the basis for a final ruling in this case. As part of this conference, the victims request that the Government indicate which (if any) of the proposed facts set forth above it disputes. THE GOVERNMENT SHOULD BE REOUIRED TO PRODUCE THE NON-PROSECUTION AGREEMENT Remarkably, the Government has yet to disclose to the victims the very Non-Prosecution Agreement that lies at the heart of this case. This failure becomes even more curious when assessed against the Government's proposed stipulation of facts, which included the proposed fact that the victims had been told about the "full terms" of the Agreement. The proposed stipulated facts that the Government sent to the victims included this proposed stipulation: On July 9, 2008, AUSA Villafafla sent a victim notification to Jane Doe # I via her attorney, Bradley Edwards, which is attached as Exhibit 6 to the Villafafia Declaration. That notification contains a written explanation of the full terms of the agreement between Epstein and the U.S. Attorney's Office. Contrary to its own proposed stipulation, the Government has never disclosed to the victims the 11 EFTA00177263 Case 9:08-cv-8( KAM Document 19 Entered on FLSD Docket 08/0' 3 Page 12 of 16 "full terms" of its Non-Prosecution Agreement with Epstein. To protect the victims' right to be treated with fairness, 18 U.S.C. § 3771(a)(8), it should be required to do so now. Congress' main concern in passing the CVRA was that crime victims were "treated as non-participants in a critical event in their lives. They were kept in the dark by prosecutors too busy to care enough ... and by a court system that simply did not have a place for them." 150 CONG. REC. S4262 (Apr. 22, 2004) (statement of Sen. Feinstein). To remedy this problem, Congress gave victims "the simple right to know what is going on, to participate in the process where the information that victims and their families can provide may be material and relevant ... ." Id. To date, Jane Doe #1 and Jane Doe #2 do not know what has happened to their case, because they have not been told how it has been resolved. Of course, no possible harm to the Government can come from the release of the Agreement, as this criminal matter is now concluded — at least from the Government's perspective. Production of the Non-Prosecution Agreement is also warranted because it has provisions in it that are designed to benefit Jane Doe #1 and Jane Doe #2. As described by the Government, the Agreement contains provisions in it that preclude Epstein from contesting civil liability for the sex offenses committed against a number of the victims, including Jane Doe #1. Obviously, Jane Doe #1 cannot take advantage of this provision if her attorneys are not able to review it. Jane Doe #1 and Jane Doe #2 intend to file civil suits against Epstein within the next few days. Epstein knows what is in the Non-Prosecution Agreement that may be helpful to him. Jane Doe #1 and Jane Doe #2 are entitled to see the Agreement for items that may be helpful to them. Finally, Epstein is apparently taking advantage of provisions in the Non-Prosecution Agreement to stall civil suits against him. For example, in Jane Doe I. Epstein et al., No. 08- 12 EFTA00177264 Case 9:08-cv-8f KAM Document 19 Entered on FLSD Docket 08/0 8 Page 13 of 16 80804-MARRA/JOHNSON (S.D. Fla. 2008), on July 25, 2008, Epstein filed a motion for a stay. That motion claims that the civil action is "a counterpart to a pending federal criminal action." The basis for that claim, so far as Jane Doe #1 and Jane Doe #2 can tell, is the federal Non- Prosecution Agreement. Epstein should not be permitted to use provisions in the Agreement to his advantage in private litigation without disclosing those provisions to the parties he is opposing. Indeed, as a simple matter of fairness to the victims, see 18 U.S.C. § 3771(a)(5) (victims right to "fairness"), the provisions should be disclosed. In sum, the Court should direct the Government to reveal to the victims what it has done to resolve the case by ordering production of the full Non-Prosecution Agreement and any accompanying addenda to the agreement. THE GOVERNMENT SHOULD BE REQUIRED TO PRODUCE THE REPORT OF INTERVIEW WITH JANE DOE #1 The Government apparently has a report of interview indicating that two named FBI agents met with Jane Doe #1 on about October 26, 2007. The Government, however, has declined to produce it. The Government should be directed to produce this information to Jane Doe # 1 . Of course, a criminal defendant would be entitled to such a report. See Fed. R. Crim. P. 16(aXI )(A) & (B). As an innocent victim in this matter, Jane Doe #1 should be treated with at least the same consideration. See 18 U.S.C. § 3771(a)(8) (victim's right to "be treated with fairness"). Jane Doe #1 requested this report in her letter regarding the proposed stipulated facts (see Exhibit 2 to this filing), a request that the Government has simply ignored. 13 EFTA00177265 Case 9:08-cv-8C <AM Document 19 Entered on FLSD Docket 08/01 3 Page 14 of 16 AFTER ENTERING JUDGMENT FOR THE VICTIMS' ON THE VIOLATION OF THEIR RIGHTS, THE COURT SHOULD SCHEDULE A HEARING ON THE APPROPRIATE REMEDY For the reasons just explained, the Court should enter judgment for Jane Doe #1 and Jane Doe #2 on the violations of their rights under the CVRA and order the Government to produce the Non-Prosecution Agreement and the report of interview with Jane Doe #1. After doing that, the question then arises as to what is the proper remedy for the violations of victims' rights. To be clear, at this time, the victims seek two things: (1) a judicial declaration that the Government violated their rights under the CVRA and an apology from the Government; and (2) a hearing to discuss the appropriate remedy under the circumstances. At the same time, the victims are not asking to have any provision in the Non-Prosecution Agreement establishing liability in a civil suit to be vacated or declared invalid. Because the possible connection between these two things raises complex legal issues, the victims respectfully request that the Court order a hearing at which the appropriate remedy can be discussed. The victims also need to review the full text of the Non-Prosecution Agreement and any accompanying addenda to make an appropriate determination about the remedy that they wish to pursue. CONCLUSION The Court should find that the Government violated Jane Doe #1 and Jane Doe #2's rights under the CVRA to confer and to be treated with fairness during the negotiation and consummation of the Non-Prosecution Agreement. In the alternative, the Court should direct the Government to confer with the victims regarding what facts are undisputed in this matter and, should material facts actually be disputed, hold an evidentiary hearing regarding those facts. So that the victims can discuss these matters with the Government, the Court should order the 14 EFTA00177266 Case 9:08-cv-80 :AM Document 19 Entered on FLSD Docket 08/01. • Page 15 of 16 Government to provide to the victims the full Non-Prosecution Agreement (and accompanying addenda) that is central to this litigation as well as a report of interview with Jane Doe #1 from about October 26, 2007. The Court should then hold a hearing on the proper remedy for the violations of the victims' rights. DATED this 1st day of August, 2008. Respectfully Submitted, THE LAW OFFICE OF BRAD EDWARDS & ASSOCIATES, LLC By: s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioners Florida Bar No. 542075 2028 Harrison Street Suite 202 Hollywood, Florida 33020 Telephone: 954-414-8033 Facsimile: 954-924-1530 E-Mail: be@bradedwardslaw.com Paul G. Cassell Attorney for Petitioners Pro Hac Vice 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: cassellp@law.titah.edu 15 EFTA00177267 Case 9:08-cv-8( KAM Document 19 Entered on FLSD Docket 08/0 3 Page 16 of 16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August I, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioner Florida Bar No. 542075 SERVICE LIST Jane Doe 1 and Jane Doe 2 Case No.: 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Dexter A. Lee, Assistant U.S. Attorney 99 N.E. 4th Street Miami, Florida 33132 Telephone: 305-961-9320 Facsimile: 305-530-7139 16 EFTA00177268 Case 9:08-cv-8 KAM Document 19-2 Entered on FLSD Docket 08 )08 Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOES #1 and #2 UNITED STATES STIPULATION The parties to this action, petitioners Jane Doe #1, Jane Doe #2, and the respondent United States of America, by and through their undersigned counsel, do hereby stipulate and agree that the following facts are true and correct and that no further evidentiary hearing is required with respect to the pending "Victim's Emergency Petition for Enforcement of Crime Victim Right Act, 18 U.S.C. § 3771. 1. In 2006, at the request of the Palm Beach Police Department, the Federal Bureau of Investigation ("FBI") opened an investigation into allegations that Jeffrey Epstein ("Epstein") and his personal assistants had used facilities of interstate commerce to induce young girls between the ages of thirteen and seventeen to engage in prostitution, amongst other offenses. The case was presented to the United States Attorney's Office for the Southern District of Florida, which accepted the case for investigation. EFTA00177269 Case 9:08-cv-80 :AM Document 19-2 Entered on FLSD Docket 08/( D8 Page 2 of 6 2. At the time that the investigation was opened, the Palm Beach County State Attorney's Office had presented evidence to a state grand jury, which had returned an indictment charging solicitation of prostitution. That charge made no reference to the ages of the minor victims and, upon conviction, would not require sex offender registration. 3. Jane Doe #1 is a woman with initials C.W., and Jane Doe #2 is a woman with initials T.M. Both were victims of Epstein's while they were minors beginning when they were fifteen years old. Both Jane Does were identified through the Palm Beach Police Department's investigation of Epstein. 4. Attached as Exhibits 1, 2, 3, and 4 to the Declaration of A. Marie Villafafla are true and correct copies of victim notification letters sent to Jane Does 1 and 2 from the United States Attorney's Office and the FBI. 5. 'Throughout the investigation, the FBI agents and the Assistant U.S. Attorney had several meetings with Jane Doe #1. During those meetings, Jane Doe #1 never expressed a desire to be consulted prior to the resolution of the investigation. Jane Doe #2 was represented by counsel and, accordingly, all contact was made through that attorney. That attorney never expressed that Jane Doe #2 wanted to be consulted prior to the resolution of the investigation. 6. In September 2007, Epstein and the U.S. Attorney's Office reached an agreement whereby the United States would defer federal prosecution in favor of EFTA00177270 Case 9:08-cv-8C (AM Document 19-2 Entered on FLSD Docket 08/ AS Page 3 of 6 prosecution by the State of Florida, so long as certain basic preconditions were met. Those included a conviction on a state sex offense that reflected that the victims were minors at the time the crimes occurred and that would require sex offender registration. Another key objective for the United States Attorney's Office was to preserve a federal remedy for the young girls whom Epstein had sexually exploited. The Agreement contained an express confidentiality provision. The Agreement was subsequently modified in October and December 2007. 7. Although individual victims were not consulted regarding the agreement, several had expressed concerns regarding the exposure of their identities at trial and they desired a prompt resolution of the matter. At the time the agreement and the modifications were signed in September, October, and December 2007, Jane Doe #2 was openly hostile to the prosecution of Epstein. 8. In October 2007, shortly after the initial agreement was signed, Jane Doe #1 was contacted to be advised regarding the resolution of the investigation. On October 26, 2007, Special Agents E. Nesbitt Kuyrkendall and Jason Richards met in person with Jane Doe #1. The Special Agents explained that the investigation had been resolved, that Epstein would plead guilty to state charges, he would be required to register as a sex offender for life, and he had made certain concessions related to the payment of damages to the victims, including Jane Doe #1. During this meeting, Jane Doe #1 did not raise any objections to the resolution of the matter. EFTA00177271 Case 9:08-cv-8C (AM Document 19-2 Entered on FLSD Docket 08/ 08 Page 4 of 6 9. Jane Doe # l's perception of the explanation provided by the Special Agents was that only the State part of the Epstein investigation had been resolved, and that the federal investigation would continue, possibly leading to a federal prosecution. 10. When Epstein's attorneys learned that some of the victims had been notified, they complained that the victims were receiving an incentive to overstate their involvement with Epstein in order to increase their damages claims. Following the signing of the Agreement and the modifications thereto, Epstein's performance was delayed while he sought higher level review within the Department of Justice. Throughout that period, the FBI and the U.S. Attorney's Office maintained contact with the victims, to be prepared if Epstein were to renege on the agreement. 11. After Jane Doe #1 had been notified of the terms of the agreement, but before Epstein performed his obligations, Jane Doe #1 contacted the FBI because Epstein's counsel was attempting to take her deposition and private investigators were harassing her. Assistant U.S. Attorney A. Marie Villafalia secured pro bono counsel to represent Jane Doe #1 and several other identified victims in connection with the criminal investigation. Pro bono counsel was able to assist Jane Doe #1 in avoiding the improper deposition. 12. In mid-June 2008, Attorney Edwards contacted AUSA Villafafia to inform her that he represented Jane Doe #1 and, later, Jane Doe #2. Attorney Edwards asked to EFTA00177272 Case 9:08-cv-8( KAM Document 19-2 Entered on FLSD Docket 08/ i08 Page 5 of 6 meet to provide information regarding Epstein. Attorney Edwards was asked to send any information that he wanted considered, but did not send anything. 13. On Friday, June 27, 2008, at approximately 4:15 p.m., AUSA Villafafia received a copy of Epstein's proposed state plea agreement and learned that the plea was scheduled for 8:30 a.m., Monday, June 30, 2008. AUSA Villafafla and the Palm Beach Police Department attempted to provide notification to victims in the short time that Epstein's counsel had provided. Attorney Edwards was called to provide notice to his clients regarding the hearing. 14. On July 9, 2008, AUSA Villafafla sent a victim notification to Jane Doe #1 via her attorney, Bradley Edwards, which is attached as Exhibit 6 to the Villafaha Declaration. That notification contains a written explanation of the full terms of the agreement between Epstein and the U.S. Attorney's Office. A notification was not provided to Jane Doe #2 because the agreement limited Epstein's liability to victims whom the United States was prepared to name in an indictment. SO STIPULATED AND AGREED. Dated: BRADLEY EDWARDS, ESQ. Attorney for Petitioners Jane Does #1 & 2 R. ALEXANDER ACOSTA UNITED STATES ATTORNEY EFTA00177273 Case 9:08-cv-8( KAM Document 19-2 Entered on FLSD Docket 08. )08 Page 6 of 6 Dated: LEE By: ASSISTANT U.S. ATTORNEY DEXTER Attorney for Respondent United States EFTA00177274 Case 9:08-cv-8( KAM Document 191 A wEBtyprilep FLSD Docket 08r 108 Page 1 of 7 . . C' (.4.) eyet atiw?,-/ AND ASSOCIATES July 17, 2008 Ann Marie C. Villafafia, AUSA United States Attorney's Office 500 South Australian Avenue West Palm Beach, Florida 33401 Re: Proposed Stipulated Facts for In Re Jane Doe Dear Ms. Villafafia: Thank you for your recent proposed stipulation of facts in this case. I believe that we have considerable common ground. At the same time, however, it appears to me that a few