:4/17/2007

:4/17/2007 :4L FM Mal: 1/1 Y 1, am L. Richey, P Yiliiaa L. Richey, P.A. TO: 5 PAGE: 002 OF 00; UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FGJ 07-103 (WPB) IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS FILED UNDER SEAL OLY-63 & OLY-64 REPLY OF WILLIAM RILEY AND RILEY KIRALY TO THE GOVERNMENT'S RESPONSE TO THE MOTION TO INTERVENE AND TO QUASH GRAND JURY SUBPOENAS AND CROSS MOTION TO COMPEL William Riley and Riley Kiraly ("Riley"). by and through undersigned counsel, file this Reply to the Response of the United States to the Motion of Jeffrey Epstein to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel to respond to the Government's assertions that Riley failed to appear before the grand jury.' The Government is mistaken. Riley's appearance before the grand jury was originally scheduled for July 10. 2007. By the agreement of the parties. that appearance was rescheduled for July 17, 2007. The day before that scheduled appearance, i.e.. July 16. 2007. counsel for Jeffrey Epstein, who seeks to intervene in this matter, was informed by Deputy Chief that Riley did not have to appear physically before the grand jury if a motion to quash the subpoena at issue was filed by Epstein before the end of the day on July 17. 2007. As the Government's Response states. Epstein's motion to quash was filed on July 17, 2007 before the close of business. See Gov't Resp. at 1. Riley was informed of these matters by Roy Black, Esquire. and did not appear in reliance on the Government's agreement with Roy Black. I Undersigned counsel has been out of the country and just recently returned. Accordingly, this Reply has been prepared within days of his return. William L Richey, P.A. 301 South Biscayne Boulevard, 34th Floor, Miami Center, Miami, Florida 331314325 •---- Facsimile EFTA00178967 x/17/.:007 PH FRCII: VI: 1 ar L. Richey, P William L. Richey, P.A. TO:, ' • PAGE: 00"; of FGJ 07-103 (WPB) Therefore, contrary to the Government's claim. Riley did not flout the subpoena. Rather. Riley's non-appearance was known by the Government. and Riley met the condition of that excuse, that is. Epstein timely filed the motion to quash. Respect fully submitted, WILLIAM I.. RICHEY. H.A. 201 South Biscayne Boulevard 344 Floor, Miami Center Miami. Florida 33131 Tel: Fax: B William L. Riche' Ha. Bar No. CERTIFICATE OF SERVICF, I hereby certify that on August 17. 2007, the foregoing document will be served via facsimile and U.S. Mail on counsel, as listed on the attached service list. This document was not filed using CM/ECF because it is bring filed under seal. 011am . Richey William L Ridley, P.A. 201 South Biscaync Bo deism, 34th Floor, Miami Center, Miami, Florida 33131-4325 • - Facsimile EFTA00178968 A/17/2007 ):101 114 FWII: Lis ),1( am L. Pachty, P William L. luchey, P.A. TO: ( PAGE: 0.: Service List In re: Grand Jury Subpoenas FOJ 07-103 (WPB) United States District Court, Southern District of Florida Assistant US Attorney 500 South Australian Avenue. Suite 400 West Palm Beach, Florida 33401 Fax: Roy Black. Esquire Black Srebnick Kornspan & Stumpf 201 South Biscayne Boulevard, Suite 1300 Miami Florida 33131 Fax: -3- William I.. Richey, RA. 201 South Biscayne Bottlevant, 34th Floor, Miami Center, Miami, Florida 33131-43a1 FGJ 07-103 (WPII) - Facsimile EFTA00178969 x/1./2007 ):27 PM FROM: WiTliAm L. Richey, P William L. Richey, P.A. TO: .,mmin FADE: 002 OF 00'. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FGJ 07-103 ( WPB) IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS OLY-63 & OLY-64 FILED UNDER SEAL MOTION OF AND I FOR AN EXTENSION OF TIME NUNC PRO TUNC TO FILE THEIR REPLY ME arid ('`_'1. by and through undersigned counsel, respectfully request for an enlargement of time. mine pro tune, to file their Reply to the Government's Response to the Motion to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel. In support thereof. states as follows: I. Undersigned counsel has been out of the country recently, only returning on August I I, 2007. By that time, the time to reply to the Government's Response to the Motion of Jeffrey Epstein to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel had already expired. 2. Undersigned counsel received a copy of the Reply tiled by Jeffrey Epstein yesterday, August 16. 2007. Counsel has now reviewed that filing. along with the Government's response. 3. reply is being filed concurrently with this request for an extension of time. 4. Counsel attempted to contact the AUSA in this case to determine whether she would consent to the relief requested herein, however. she is unavailable until next Thursday. August 23, 2007. Accordingly, to prevent further delay, this request is being tiled at this time. 5. This request is not made for the purpose of delay. EFTA00178970 3/11/200' )::7 PH FROM: William L. Richey, P William L. Richey, P.A. TO; 1-S61-802-17A7 FAG 6: 00) OF on!. Pal 07-103 (W1>E1) WHEREFORE and respectfully request that the Court enter an order granting them art extension of time nunc pro rune to file their Reply to the Government's Response to the Motion to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel. Respect(Idly submitted. WILLIAM L. RICHEY, P.A. 201 South Biscayne Boulevard 34th Floor. Miami Center Miami. Florida 33131 William L. Rib Ha. Bar No. CERTIFICATE OF SERVICE I hereby certify that on August 17. 2007. the foregoing document will he served via facsimile and U.S. Mail on counsel, as listed on the attached service list. This document was not filed using CM/ECI because it is being filed under seal. illiam L. Richey cl L Richey, P.A. 201 South Biscayne Boulevard, 34th Floor, Miami Center, Miami, Florida 3.3131-1323 - Facsimile EFTA00178971 8/10/2007 ):27 PM FROM: Wslp an L. Richey, 1, William L. Richey, P.A. TO: '-561-802-1787 PAGE: 000 OF FGJ 07-103 (WPB) Service List In re: Grand Jury Subpoenas FOJ 07-103 (WPB) United States District Court, Southern District of Florida Assistant US Attorney 500 South Australian Avenue. Suite 400 West Palm Beach Florida 33401 Fax: Roy Black. Esquire Black Srebnick Komspan & Stumpf 201 South Biscayne Boulevard, Suite 1300 Miami Florida 33 1 Fax: William 1.. Whey, P.A. 201 South Biscayne Boulevard. 34th Floor, Miami Center, Miami, Florida 331M-4325 • Facsimile EFTA00178972 A/1/200, ):27 PM !Roll: W11•'am L. Richey, P Uilliam L. ktchwf, P.A. TO: • WIIIINES? ( PAGE: Oin OF 00!. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA RU 07-103 (WPB) IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS OLY-63 & OLY-64 FILED UNDER SEAL ORDER GRANTING MOTION OF1 ' AND FOR AN EXTENSION OF TIME NUNC PRO TUNC TO FILE THEIR REPLY THIS CAUSE came before the Court on the Motion of_, for an Extension of Time Nom Pro Tune to File Their Reply. Upon review of the Motion. it is hereby: ORDERED AND ADJUDGED that the Motion is GRANTED. The Reply of la MI and Mel to the Govenunent's Response to the Motion to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel is deemed timely filed. DONE AND ORDERED in chambers this day of , ')007, at West Palm Beach. Florida. KENNETH A. MARRA UNITED STATES DISTRICT JUDGE cc: William L. Richey. Esquire Roy Black. Esquire EFTA00178973 (Rev. 06/2005)Sealcd Document Tracking Form Corr - - UNITED STATES DISTRICT COURT Southern District of Florida Case Number: RIO" 01 - Io 3 6,0 In ire e rand Jury Plaintiff 6 74 bpot etas DU CC S Te-C44 1‘ 0 a-noi &4 Party Filing Matter Under Seal On behalf of (se Date sealed doe' If sealed pursuai If sealed pursuai The matter shou O Conclusion O Case Closin tirOther: ti Ci Perrnanen t13 is it-furi piled pernictocn-l-ti please • The moving part filed matter should be (select one): O Unsealed anu ptaLeu rn toe public portion of the court file 0 Destroyed K Returned to the party or counsel for the party, as identified above SEALED DOCUMENT TRACKING FORM Name: ROI L-A GI < r e sep . Address: 101 S• • IS 3-1- lo42-) IIDtr Nita. /3 .B— Defendant. er and docket entry number: Arrest of First Defendant Conclusion of Direct Appeal LOOM' &bell C • if no Mob' Cfntet, Vegvne-i‘ coy. licni$Attar yfor:gtAcx, Wonispa,1 cund Stu. sniff PA -. 0$4 60404 of- IrVi-eirVeletthe J-CfereAl ep-feit-) EFTA00178974 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS ) CASE No. FGJ 07-103(WPB) OLY-63 and OLY-64 UNDER SEAL EFTA00178975 UNDER SEAL NOTICE OF UNAVAILABILITY OF COUNSEL FOR INTERVENOR Jeffrey Epstein has moved to intervene in this matter and to quash grand jury subpoenas to investigator and his firm, Mr. Epstein is represented by undersigned counsel Roy Black. The issues raised by the motions to intervene and to quash have been briefed and the parties await a hearing date from the Court. Undersigned counsel would like to inform the Court that he is out of the jurisdiction on a family vacation until September 1, 2007. We respectfully request that any hearing the Court may scheduled in this matter be scheduled after September 1, 2007, at the Court's discretion. Undersigned counsel spoke with the prosecutor, who indicated that the government objects. Respectfully Submitted, BLACK, SREBNICK, KORNSPAN & STUMPF, PA. 201 South Biscayne Boulevard Suite 1300 Miami Florida 33131 Ph: — Fax: E-Mail: By: BLACK, ffot R BLACK, ESQ. Florida Bar No. Counsel for Jeffrey Epstein 2 Black. Srebnkk. Komspan & Stumpf 2015. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 • Fat •www.Royffiack.corn EFTA00178976 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on Ihtri. 14.O.00* a true and correct copy of the forging motion was furnished by email and by U.S. mail to: United States Attorney's Office, 500 South Australian Avenue, Suite 400, West Palm Beach, FL 33401. This pleading was not filed using the CM/ECF system because it pertains to a grand jury investigation and therefore it has been filed under seal. By: vezzczia4 Fop- ROY ilLACK, ESQ. Counsel for Jeffrey Epstein 3 Black. Srebnick. Komspan & Stum f 2015. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178977 e/7/2007 2:01 PH FROM: Wally %. Richey. P William L. Richey. P.A. TO: PAGE: 002 01" 002 August 7, 2007 Assistant US Attorney 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 RE: Grand Jury Subpoena CASE NO. FGJ 07-103(WPB)/No. OLY-64 Dear Ms. Miami Office Via Facsimile No. Please accept this letter as notice that will be out of town (tom August 13,2007 through August 15, 2007 and both Mr. and I will be out of town from September 5, 2007 through September 16, 2007. If you wish to schedule anything, please be so kind as to contact my assistant, • Linda Vasserot and she will be glad to coordinate dates with you. Sincerely, William L. Richey Transcnbed as Dictated.• Minted & Approved for Electronic Transmission Absent Signature WLR/ dct EFTA00178978 U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave.. Suite 400 ch, FL 3340! Facsimile: VIA FACSIMILE Roy Black, Esq. Black Srebnick Komspan & Stumpf P.A. 201 S. Biscayne Blvd, Suite 1300 Miami, FL 33131 Re: Correspondence Dated July 13. 2007 Dear Mr. Black: July 16, 2007 Thank you for your letter of July 13, 2007. You and your firm are neither a subpoenaed party nor counsel to a subpoenaed party. Accordingly, pursuant to the Federal Rules of Criminal Procedure, I am not at liberty to discuss this matter with you. Moreover, it is not the practice of this Office to discuss internal Department of Justice policies with non-Justice Department personnel. If Mr. believes he has cause to move to quash the subpoena, or if Mr. Epstein does for that matter, counsel for the respective parties should so move. Otherwise, we expect compliance by tomorrow, which includes a one-week extension already requested by Ms. Sanchez prior to Mr. Richey's appearance as counsel for Mr...I cc: , Esq. William Richey, Esq. Lilly Ann Sanchez, Esq. B Sincerely, R. Alexander Acosta Assistant United States Attorney EFTA00178979 U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave., Suite 400 ch, FL 33401 Facsimile: VIA FACSIMILE William L. Richey, Esq. William L. Richey, P.A. 201 S. Biscayne Blvd, 34th Floor Miami, FL 33131 Re: I SARglatilMill July 16, 2007 Dear Mr. Richey: I have not received a motion to quash the subpoena served upon Mr.Mil, so I expect that your client will appear before the grand jury tomorrow fnow, I believe that his appearance will be at 4:00 p.m. but contact my assistant , later this morning for confirmation of the start time.l.= can be reached at cc: Esq. By: Sincerely, R. Alexander Acosta United States Attorney fn A Assistant United States Attorney EFTA00178980 U.S. Departm of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor Wes Palm B ch, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: Roy Black, Esq. DATE: July 16.2007 FAX NO. _ # OF PAGES: 2 PHONE NO. _ RE: FROM: PHONE NO. , Assistant U.S. Attorney COMMENTS: EFTA00178981 U.S. Departni, of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor lm B ch, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: Lilly Ann Sanchez DATE: July 16, 2007 FAX NO. PHONE NO. # OF PAGES: 2 RE: FROM: PHONE NO. , Assistant U.S. Attorney COMMENTS: EFTA00178982 U.S. Departni of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor IVe • Beach, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: William L. Richey. Esq. DATE: July 16, 2007 FAX NO. # OF PAGES: 3 PHONE NO. _ RE: FROM: PHONE NO. Assistant U.S. Attorney COMMENTS: EFTA00178983 07/16/2007 09:33 FAX USA0 WPB FL 0001 TRANSMISSION OK TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME USAGE T PGS. SENT RESULT ****************t**** es* TX REPORT 3** ********************* 0076 07/16 09:32 01'12 3 OK U.S. Department of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor ch, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: William L. Richey. Esq. DATE: July 16, 2007 FAX NO. # OF PAGES: PHONE NO. RE: 3 FROM: PHONE NO. , Assistant U.S. Attorney COMMENTS: EFTA00178984 07/16/2007 09:31 FAX MAO WPB FL Zoo' TRANSMISSION OK TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME USAGE T PCS. SENT RESULT ********************* *** TX REPORT :ItS ********************* 0075 07/16 09:30 01'00 2 OK U.S. Department of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor West Palm Beach, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: Roy Black, Esq, DATE: July 16.2007 FAX NO. # OF PAGES: 2 PHONE NO. _ RE: FROM: PHONE NO. Assistant U.S. Attorney COMMENTS: EFTA00178985 07/16/2007 09:34 FAX USA0 %MB FL 3***************3**** 3** TX REPORT *** ********************* TRANSMISSION OK TX/RX NO 0077 CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME 07/16 09:33 USAGE T 00'52 PGS. SENT 2 RESULT OK U.S. Department of Justice United States Attorney Southern District of Florida S00 S. Australian Ave. 4th Floor West Palm Beach, Florida 3340! (SO) 820-fi sm Facsimile FACSIMILE COVER SHEET TO: Lilly Ann Sanchez DATE: July 16. 2007 FAX NO. # OF PAGES: 2 PHONE NO. _ RE: FROM: PHONE NO. Assistant U.S. Attorney COMMENTS: EFTA00178986 ROY BLACK HOWARD M. SREBNICK SCOTT A. KORNSPAN LARRY A. STUMPF MARIA NEYRA JACKIE PERCZEK MARK A.J. SHAPIRO JARED LOPEZ BLACK SREBNICK KORNSPAN STUMPF PA._. July 13, 2007 VIA FACSIMILE AND U.S. MAIL Esq. Assistant United States Attorney Office of the United States Attorney Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Re: Grand Jury Subpoena - William Riley Dear Ms. NM CHRISTINE M. NO JESSICA FONSECA-NADER KATHLEEN P. PHILLIPS AARON ANTHON MARCOS BEATON, JR. MATTHEW P. O'BRIEN E-Mail: I represent Jeffrey Epstein, the target of a pending Grand Jury investigation. Prior to the initiation of this federal investigation, I represented Mr. Epstein on a Palm Beach Florida State Attorney's Office investigation and subsequently an Information, the factual basis of which is identical to, and gave rise to, the federal investigation presently underway. In connection with my earlier representation of Mr. Epstein, I hired Mr. William Riley as a private investigator to act under my direction in anticipation of defending Mr. Epstein against possible criminal charges and any litigation which may have followed. All his investigations were done as my agent and thus are covered by the work product privilege, and all communications to him are protected by the attorney client privilege. Though we are not conceding the existence of any computers that would be responsive to the subpoena served upon Mr. Riley, to the extent there are any such computers, they would contain documents that are privileged attorney-client communications and attorney work-product. Your subpoena also asks for materials describing the scope of his investigation and thus they are our work product. 2O1 S. Biscayne Boulevard. Suite 13OO • Miami, Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178987 , Esq. July 13, 2007 Page 2 As you know, the United States Attorney's Office Manual, Guidelines for Issuing Grand Jury and Thal Subpoenas to Attorneys for Information Relating to the Representation of Clients, requires that the attorney client and work-product privilieged information sought by the Grand Jury subpoena issued to Mr. Riley must first be authorized by the Assistant Attorney General for the Criminal Division before it may issue. Therefore, please advise me as to whether the applicable sections of the United States Attorney's Office Manual was complied with prior to the issuance of the Grand Jury subpoena to Mr. Riley. Please also advise as to the preliminary steps taken in advance of the issuance of the subpoena, as required by the Manual. Finally, please provide me with the name of the Assistant Attorney General of the Criminal Division who undertook the evaluation of the request for the Grand Jury subpoena, as required by the same section of the Manual and, if an evaluation was made, the basis upon which the Assistant determined that the information sought in the subpoena was not protected by a valid claim of privilege. Sincerely, RB/wg Black. Srebnick. Kornspan & Stumpf, P.A. EFTA00178988 11 : M FF 11 k . Richey, P William I.. Richey, P.A. TO: 1-, " -820-8777 PAGE: 002 OP 002 Wi'LLIAM L. RICHEY, P.A. 40:: Sou :It Biscayne Boulevard Fln x, Miami Center Miami, ;bride 33131.4325 *Igeepl.n: :Fa. ziroi e: July 9, 2007 As 3i stant US Attorney S00 South Australian Avenue, Suite 400 WI !st Palm Beach, Florida 33401 RE: Grand Jury Subpoena CASE NO. FGJ 07-103(WPB)/No. OLY-64 5501 SW Sunshine Farms Way Palm City, Florida 34990.5696 Telephona Please Reply To: Miami Office Via Facsimile No. 1- Cc ar Ms. Please accept this letter that William Riley will be out of the country starting July Li, 2007 and returning on July 23, 2007. Also please remember that I am out of the co entry from July 21, 2007 through and including July 31, 2007. If you wish to schedule anything, please be so kind as to contact my assistant, Lb Ida Vasserot and she will be glad to coordinate dates with you. Sincerely; William L. Richey Signed in Mr. Ricliey's absence to avoid del Vi _2/ dct EFTA00178989 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA GRAND JURY MATTER FILED UNDER SEAL IN RE GRAND JURY SUBPOENAS ) DUCES TECUM ISSUED TO ) FGJ 07-103 (WPB)/No. OLY -64 WILLIAM RILEY AND RILEY KIRALY MOTION OF JEFFREY EPSTEIN TO INTERVENE AND TO QUASH GRAND JURY SUBPOENAS AND INCORPORATED MEMORANDUM OF LAW Now comes Jeffrey Epstein and respectfully moves this Honorable Court, pursuant to the Fourth and Fifth Amendments to the United States Constitution and to Fed. R. Crim. P. 17(c), for an Order: A. permitting him to intervene in the matter of two grand jury subpoenas duces tecum issued to William Riley and Riley Kiraly, respectively, and to move to quash said subpoenas; and B. quashing the above referenced subpoenas which require Mr. Riley to appear before the grand jury and to bring with him: 1. All computer equipment and electronic storage media removed from the residence located at 358 El Brillo Way, Palm Beach Florida, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. Black. SrebnIdc. ICanspanS. 201 S. Biscayne Boulevard. Suitc 1300 • Miami. Florida 33131 • Phone: • It • www.RoyBlack.com EFTA00178990 2. All computer equipment and electronic storage media that currently belongs to, or has ever belonged to, Jeffrey Epstein, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. 3. All documents and information related to the nature of the relationship between Mr. William Riley and/or Riley Kiraly and Mr. Jeffrey Epstein, including, but not limited to, retainer agreements; employment agreements; billing statements (whether submitted directly to Mr. Epstein or to a third party for reimbursement); records of the dates when services were performed and the hours worked; telephone logs or records of dates of communications with Mr. Epstein (or with a third party on Mr. Epstein's behalf); appointment calendars/datebooks and the like (whether in hard copy or electronic form) for any period when work was performed on behalf of Mr. Epstein or when any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf); and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. The baies for the requested relief are as follows: A. the compelled production of these items, assuming they exist, would violate Mr. Epstein's rights under the Fifth Amendment to the United States Constitution; B. such production of these items, assuming they exist, would further violate Mr. Epstein's Sixth Amendment right to effective assistance of counsel as well as his attorney-client and work-product privileges; 2 Black, Srebnick. Komspan & Slum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax • www.Koyulack.com EFTA00178991 C. the subpoenas are unreasonable and oppressive and overbroad and unparticularized, in violation of the Fourth Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment, and Fed. R. Crim. Proc. 17(c); and D. the subpoenas call for purely private papers in violation of the Fifth Amendment under Boyd v. United States, 116 U.S. 616 (1886). As further reason therefore, Mr. Epstein refers the Court to the Memorandum of Law incorporated herein. 3 Black, Srcbnick. Kornspan & Slum 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • lax: • www.RoyBlack.com EFTA00178992 MEMORANDUM OF LAW In or about March 2005, the Palm Beach Police Department initiated a criminal investigation of Jeffrey Epstein to determine whether he committed any criminal acts in connection with allegations that he paid women to provide massages to him in his home. According to information obtained by the local police, one or more of the women so engaged was under the age of 18 at the relevant time. Affidavit of Roy Black, Esq., sworn to July 17,. 2007, annexed ("Black Aft") 73. Following a 16 month investigation, on July 17, 2006, Mr. Epstein was charged under Florida law with one count of soliciting a prostitute, a third degree felony. That charge is still pending. Black Aff. 75. In the fall of 2005, prior to being charged with any wrongdoing, Mr. Epstein retained Roy Black, Esq., to represent him in connection with the then ongoing state investigation. Black Aff. ¶3. Mr. Black in turn hired William Riley of Riley Kiraly, a private investigation firm, to assist him in his representation of Mr. Epstein. Black Aff. 74. During the course of the state investigation, law enforcement authorities concluded that at some time, one or more computers had been removed from Mr. Epstein's home by a private investigator working at the instruction of Mr. 4 Black. Srehnick. Kornspan & Slum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178993 Epstein's counsel. It is those computers;' the testimony of the private investigator; and documents relating to the retention and to the work-product of the investigator that are sought by the subpoenas. Both prior to the charge being brought and thereafter defense counsel were provided with open disclosure of the state's evidence. Black Aff. 16. As a result, all or virtually all of the evidence obtained by the state in its investigation has been reviewed by the defense. Id. Included in the materials reviewed are the audio and/or video taped sworn statements of 18 witnesses, transcripts of all 18 of those recorded sworn statements, the transcript of one additional sworn statement, and over 125 pages of documents prepared by the Palm Beach Police Department which detail every sworn statement obtained by detectives, every interview conducted by detectives, all their investigative efforts, and all the evidence gathered. Id. These documents include the entire police file, as well as the probable cause affidavits prepared by Palm Beach detectives and the application for a search warrant of Mr. Epstein's home. Id. Reviewing these materials has afforded the defense with a thorough understanding of the factual bases for any allegations that have been, or could have been, made against Mr. Epstein. Black Aff. ¶7. We do not concede the existence of any such computers. However, for purposes of this motion, we refer herein to "computers" as if one or more computers described in the subpoenas do exist. 5 Black. Srebnick. Komspan S& ni 201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: • Fax • www.RoyBlack.com EFTA00178994 In approximately January 2007, a grand jury in the Southern District of Florida initiated what was termed a "parallel" investigation to determine whether the conduct in which Mr. Epstein had allegedly engaged violated federal laws, including violations of 18 U.S.C. §2423 (travel for the purpose of engaging in unlawful sexual activity); and 18 U.S.C. §2422(b), use of the Internet or other means of interstate communication to persuade, entice or coerce another to engage in unlawful sexual activity. Black Aff. 11. We understood the conduct being scrutinized by the federal grand jury was the same as the subject of the state prosecution. Black Aff. $8. Indeed, during the course of the federal investigation, prosecutors asked for and were provided with copies of the 18 recorded sworn witness statements, and further asked for copies of the transcripts of those sworn statements. Id. That the two investigations examine the same alleged conduct is also clear from Palm Beach Police Chief Michael S. Reiter's letter expressing the Department's displeasure with the actions of the state grand jury and State Attorney's Office, and explaining he was referring the matter to federal authorities in order to initiate a federal investigation of the facts. Black Aff. 919, see also Black Aff. Exhibit "B". At the same time, the Palm Beach Police Department both publicly released copies of its files, including the 87 page police report and 6 Black. Srebnick. Kornspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178995 probable cause affidavits prepared by its detectives, and publicly announced its intentions to bring the investigation to federal authorities due to the Department's dissatisfaction with the State Attorney's handling of the matter. Black Aff. 19, see also Black Aff. Exhibit "C". The discovery provided by state authorities in connection with the state prosecution disclosed no allegations or evidence of use of the internet, e-mail or computer based pornography or any other way in which a computer could be used to commit any of the crimes under investigation. Black Aff. 9112. Nor, did the numerous discussions with federal prosecutors. regarding the federal grand jury investigation reveal any such evidence. Black Aff. 919110, 12, 13. These subpoenas were not issued in a vacuum. They are simply the most recent of a series of highly intrusive and unusual attempts to acquire highly personal and/or privileged information concerning Mr. Epstein that can have no relevance whatever to the investigation, including Mr. Epstein's personal tax returns, medical records including treatment notes of Mr. Epstein's treatment by a chiropractor, and now, invasion of the defense camp by seeking records of the investigative work performed by Mr. Riley on behalf of Mr. Epstein's counsel in the very same investigation. 7 Black. Srcbnick. Komspan & Stum f 201S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: • Fax: • www.RoyBlack.com EFTA00178996 The attempt to compel the production of an investigator's "records of dates of communication with Mr. Epstein (or with a third party on Mr. Epstein's behalf)" and to compel the production of records of investigative work "performed on behalf of Mr. Epstein" is an extraordinary invasion of the defense team representing Mr. Epstein as both an indicted state criminal defendant and as a target of the current federal investigation. While the propriety of those other subpoenas is not at issue here, the subpoenas to Mr. Riley and to his firm are. When it was pointed out to prosecutors that internal Department of Justice rules require, inter-O11a, that issuance of the subpoenas be predicated on the pre-approval of the Assistant Attorney General of the Criminal Division under the United States Attorneys' Manual ("USAM"), §9- 11.255, the question as to whether such approval had been obtained was simply ducked in an unilluminating exchange of correspondence. Though such guidelines create no third party rights, the fact that the required approval evidently was not obtained highlights the continuing overreaching of this investigation. Moreover, quite apart from whether the required steps were taken internally to obtain approval before issuing the subpoenas, as a substantive matter, the government could not meet the internal guidelines necessary for issuing a subpoena seeking information relating to the representation of a client set forth in 8 Black. Srebnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax: • www.RoyBlack.com EFTA00178997 USAM §9-13.410, including that "the information sought [be] reasonably needed for the successful completion of the investigation." The challenged subpoenas call for the production, without limitation, of the entire contents of these computers. See Black Aft Exhibit "A". Assuming the computers exist, they can be presumed to contain a vast array of data and documents, private and business related, none of which has been shown at any time to be of any. relevance whatever to the investigation. They would also contain information and documents protected by the attorney-client and work-product privileges. Black Aff. 9115. Compliance with the subpoenas _wo.uld therefore necessarily require Mr. Epstein, through the agent of his attorney, to open all aspects of his life to government inspection and leave the government free to -rummage at will through privileged, private, and business materials which are _wholly irrelevant and unrelated to the subject matter of the government's investigation.2 First, compliance with the subpoenas by Mr. Riley and/or his firm would violate-Mr. Epstein's Fifth Amendment rights because the act of production would, 2 Even a single computer of the type in standard home usage can contain a volume of information many orders of magnitude greater than the paper storage capacity or a normal home. For example, hard drives sold in 2005 "generally have storage capacities of about eighty gigabytes, roughly the equivalent of forty million pages of text — about the information contained in the books on one floor of a typical academic library." United States v. Vilar, 2007 WL 1075041 at *35 (S.D.N.Y. April 4, 2007) (emphasis added); accord In re Search of Premises Known as 1406 N. 2nd Ave., 2006 WL 709036 at *3 (W.D. Mich. March 17, 2006) (home computer can easily hold 40,000 books); see also In re Search of 3817 W. West End, 321 F. Supp.2d 953.959 (N.D. Ill. 2004). 9 Black. SrebnIck, Komspan & Stum 201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: Fax • www.RoyBlack.com EFTA00178998 under the teaching of Fisher v. United States, 425 U.S. 391, 398 (1976), result in compelling testimony from Mr. Epstein himself, in violation of his right against self incrimination. Further, it would also result in invasion of the defense camp, not only questioning actions taken by counsel to Mr. Epstein, but seeking the production of materials to which the government has no possible claim of right — materials protected by Mr. Epstein's attorney-client and work product privileges. Black Aff. 9[15. Moreover, it is simply beyond dispute that no court would uphold a subpoena that purports to require a person to produce every letter, every doeument, 'every bill, every record, every book, every photograph, every page from a magazine or newspaper he ever snipped, and every message he ever wrote, in other words, every piece of paper that is or has ever been in his home, without limitation or particularization. Yet, that is in effect what these subpoenas seek. For this reason alone, the subpoenas are per se unreasonable under the Fourth Amendment, the Due Process Clause of the Fifth Amendment, and Fed.R.Crim.P. Rule 17(c), and should be quashed in their entirety. Indeed, the fact that there are so many ways in which the subpoenas violate Mr. Epstein's fundamental rights may well be underscored by the fact that the government has failed to comply wither procedurally or substantively with the 10 Black. Srebnick, Kornspan 8iSIrrn 201 5. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phonc: • Faic • www.RoyBlack.com EFTA00178999 directives of the Department of Justice regarding issuance of subpoenas calling for information relating to legal representation. Even if the Court determines that the computers themselves must be produced pursuant to the grand jury subpoenas, compelled production does not overcome the need for the government both to particularize a subpoena and further to demonstrate probable cause to search any particular folder or file that is part of the contents of the computer•. Until and unless there is a demonstration that probable cause exists to search for and seize particular documents, no search should be permitted. I. MR. EPSTEIN IS ENTITLED TO INTERVENTION AS A MATTER OF RIGHT. Fed. R. CiV. P. 24(a) grants intervention as a matter of right . . avhen the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. - Mr. Epstein's interests in protecting materials encompassed within his attorney= client and work-product privileges; in preventing the use against him of compelled testimony in violation of his Fifth Amendment rights; and in protecting his 11 Black. Srebnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: Fax: • www.RoyBlack.com EFTA00179000 personal and business documents from wholesale invasion by the government amply satisfy this standard. Intervention as of right under Fed.R.Civ.P. Rule 24(a)(2) must be granted if it is determined that (1) the application to intervene is timely; (2) the applicant has an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that the disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) the applicant's interest will not be represented adequately by the existing parties to the suit. Sierra Club v. Leavitt, 2007 WL 1649987 at *3 (11th Cir. June 8, 2007), quoting ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1321 (11th Cir. 1990). As detailed below, all four requirements are amply met here. First, the application is timely, as it is being filed prior to enforcement of the subpoenas. Second, Mr. Epstein plainly has a significant interest in protecting his attorney-client and work-product privileges, in asserting his Fifth Amendment privilege, and in preventing unwarranted government rummaging through the contents of his computers. Third, litigation concerning the enforcdability of the subpoenas without Mr. Epstein's participation in the proceedings would leave him powerless to protect these vital interests. Fourth, these interests are personal to him and cannot be represented adequately by either the government or Mr. Riley. 12 Black, Srebnick. Kornspan & Slum f 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax: • www.RoyBlack.com EFTA00179001 Accordingly, Mr. Epstein should be afforded the right to intervene in this matter. II. MR. EPSTEIN'S ACT-OF-PRODUCTION PRIVILEGE PRECLUDES THE GOVERNMENT FROM COMPELLING MR. RILEY TO PRODUCE THE ITEMS AT ISSUE. Compelled production of the items demanded by the subpoenas would violate Mr. Epstein's right, guaranteed by the Fifth Amendment, not to be compelled to be a witness against himself. Because of the clear testimonial aspects that compliance with the subpoenas would require, the "act-of-production" privilege precludes the government from demanding that Mr. Riley appear and produce these items. The Fifth Amendment "protects a person from being compelled to be a witness against himself'. Fisher v.- United States, 425 U.S. at 398. The privilege extends beyond oral testimony to embrace all compelled testimonial communications that are potentially incriminating. It specifically includes the act of producing documents where such production itself "communicates" information. See Fisher, 425 U.S. at _408. As the Supreme Court put it: "[a]lthough the contents of a document may not be privileged, the act of producing the document may be" because "[a] government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an 13 Black. Srehnick, Komspan&St ro un 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • vwov.RoyBlack.com EFTA00179002 incriminating effect". United States v. Doe, 465 U.S. 605, 612 (1984); see also Fisher, 425 U.S. at 410 ("the act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced"). This is so because • [c]ompliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the [subpoenaed party]. It would also indicate the [subpoenaed party's] belief that the papers are those described in the subpoena. Doe, 465 U.S. at 612, quoting Fisher, 425 U.S. at 410:see also United States v. Hubbell, 530 U.S. 27, 40 (2000) (compelled testimony "is not to be found in the documents produced in response tip the subpoena" but is instead "the testimony inherent in the act of producing those documents"); In re Grand Jury Subpoena, 87 F.3d 1198, 1200 (11th Cir. 1996) ("[t]he production of documents conveys the fact that the documents exist, that they were in the possession of the witness, and that they were the documents subject to the subpoena. . . . Where these communicative acts of production have `testimonial' value and incriminate the witness, the Fifth Amendment privilege may be invoked"); accord United States v. Argomaniz, 925 F.2d 1349, 1355-56 (11th Cir. 1991) (by producing the documents called for under the subpoena, the defendant "would be establishing the existence and authenticity of the documents listed in the summons, as well as verifying that these documents 14 Black. Srebnlck. KornspanSlim 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • mvw.RoyBlack.com EFTA00179003 were in his possession"); In re Grand Jury Subpoena dated April 9, 1996, 87 F.3d 1198, 1200 (11th Cir. 1996); United States v. Gecas, 50 F.3d 1549, 1566 (11th Cir. 1995); In re Grand Jury Subpoena Duces Tecum, 754 F.2d 918, 921 (11th Cir. 1985) ("the act of production alone can constitute self-incriminating testimony); In re Grand Jury 83-8, 611 F. Supp. 16, 21 (S.D. Fla. 1985) ("the act of producing evidence in response to a subpoena . . . does have testimonial aspects of its own, wholly apart from the contents of the papers produced"); In re Keller Financial Services of Florida, Inc.; 258 B.R. 391, 403 (M.D. Fla. 2000); Federal Savings & Loan Ins. Corp. v. Hardee, 686 F. Supp 885, 887 (N.D. Fla. 1988). Had the subpoenas been served directly on Mr. Epstein and demanded that he produce the items which had at some point allegedly been in his Palm Beach home or had ever belonged to him, Mr. Epstein would unquestionably be entitled to the protection of the act-of-production privilege. That is so because, as noted above, production thereof would inherently admit that the materials exist and that they had been in his home and/or belonged to him, which would, in turn, at a minimum, implicitly authenticate the contents of the materials. See, e.g., United States v. Stewart, 2003 WL 23024461 at *3 (S.D.N.Y. December 29, 2003) (act of production privileged where government's claimed relevance for requiring the defendant to produce the subpoenaed documents "depends on the fact that the 15 Black. Srcbnick. Kornspan & Stum 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00179004 documents were produced by [defendant] from his files; [c]learly such an act of production is testimonial, and may not be compelled"); United States v. Bell, 217 F.R.D. 335 (M.D. Pa. 2003) (where government lacks knowledge of specific documents, party's production of the subpoenaed documents would testify to their existence and his possession of them). Even if the government is correct in its belief that the items listed in Ts 1 and 2 of the subpoenas are presently in the possession of Mr. Riley and/or his firm, Mr. Riley's possession of the items would not lessen Mr. Epstein's right to the protection of the act-of-production privilege. Mr. Riley is an investigator retained to assist counsel in representing Mr. Epstein in the very matter under investigation by the federal grand jury that issued the subpoenas. As such, Mr. Riley stands in the same relationship to Mr. Epstein as counsel himself. See, e.g., Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolutions Trust Corp.r5 F.3d 1508, 1514 (D.C.Cir.1993); In re Bieter Co., 16 F.3d 929, 936-38 (8th Cir. 1994); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991); United States v. Cote, 456 F.2d 142, 144 (8th Cir. 1972); Uni Judson, 322 F.2d 460, 462 (9th Cir. 1963); United States v. Kovel, 2 922 (2d Cir. 1961); Burlington Indus. v. Rossville Yarn, Inc., No. CI 0401-H, 1997 AWL 404319, at 3 (N.D. Ga. June 3, 1997); see also Uni 16 Black. Srebnick. Komspan 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33B1. Phone: • Fat • vmm.RoyBlackcom EFTA00179005 Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). In short, the investigator in turn stands in the shoes of his client. See Fisher, 425 U.S. at 404. Since production of the subpoenaed items by Mr. Epstein's legal team would, therefore, be the equivalent of production by Mr. Epstein, and the testimonial communication inherent in that production is the same as if it were Mr. Epstein himself appearing before the grand jury, the full protection of the act-of- production privilege applies here, and the subpoenas must be quashed in their entirety. III. THE SUBPOENAS VIOLATE MR. EPSTEIN'S RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS WELL AS THE ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES. As drafted, in addition to his Fourth Amendment rights, the subpoenas violate the work-product doctrine, as well as Mr. Epstein's Fifth Amendment right to due process and his Sixth Amendment right to counsel. In Hickman v. Taylor, 329 U.S. 495, 510-11 (1947), the Supreme Court recognized the modern work- product doctrine, holding that: [lin performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal 17 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: 305-371-6421 • Fax: • www.FtoyBlack.com EFTA00179006 theories and plan his strategy without undue and needless interference. The work-product doctrine grants attorneys "a zone of privacy within which to prepare the client's case and plan strategy, without undue interference". In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1014 (1S1 Cir. 1988). It applies in criminal as well as in civil cases. United States v. Nobles, 422 U.S. 225, 236-38 (1975) ("Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital"). Equally important, the Supreme Court made it clear in Nobles that the work- product doctrine necessarily extends to work perforined by an investigator for a defendant's attorney: At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself. 422 U.S. at 238-39; see also See Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11i6 Cir.), modified on other grounds, 30 F.3d 1347 (11th Cir. 18 Black Srebnick, Komspan &St ro n 20I S. Biscayne Boulevard. Suite B00 • Miami. Florida 33B1. Phone: • Fat • www.RoyBlack.com EFTA00179007 1994) (documents containing the mental impressions, conclusions, opinions, or other legal theories of an attorney or other representative of a party, concerning the litigation are, absolutely protected). Clearly, the subpoenas served in this case improperly infringe upon the work-product doctrine. The subpoenas seek production of retainer agreements, employment agreements, records of dates when services were performed and the hours worked, telephone logs or records of dates of communications with Mr. Epstein, appointment calendars and diaries during any period in which work was performed for Mr. Epstein or any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf), and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. See Black Aff. Exhibit "A". These records, which contain evidence of work performed on behalf of Mr. Epstein and his attorneys, must be protected from disclosure by the work- prodiict doctrine. The government cannot invade the defense camp through the mechanism of a subpoena any more than it can by the surreptitious planting of an informant. See, e.g:, United States v. Henry, 447 U.S. 264, 266 (1980) (rule in Massiah v. United States, 377 US. 201 (1964), violated when law enforcement agent instructed jailhouse informant "to be alert" for any incriminating statements). Nor can it do 19 Black. Srebnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax • www.Royillack.com EFTA00179008 so by keeping note of the documents selected by defense counsel for copying during the discovery process. United States v. Horn, 811 F.Supp.739 (D.N.H. 1992).3 In Horn, government counsel instructed an agent to make two copies of every document selected by defense counsel to be copied from amongst the materials made available for inspection by the government during the discovery process, and then used the documents to prepare a government witness, even after defense counsel objected to the copying and while a motion to seal the materials was pending. Horn, 811 F.Supp. at 748-749. Concluding that "there is every indication that the lead prosecutor wanted to . . . obtain an insight into defense counsel's trial strategy, tactics, and thought processes without any concern for the rights of the defendants," Horn, 811 F.Supp. at 749, the court found that the government had violated defendants' work-product privilege, as well as their Fifth Amendment right to due process and their Sixth Amendment right to effective assistance of-counsel. 811 F.Supp. at 752; see also United States v. Horn, 29 F.3d 754, 758 (14 Cir. 1994) (in government's appeal of one of the district court's remedies — ordering the government to pay defense legal fees to litigate the issue — the Court noted that the district court "ruled that this prosecutorial misconduct 3 As the court in Horn noted, several courts have held that defense counsel's selection and compilation of documents in preparation for pretrial discovery fall within the highly-protected category of opinion work product. Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); Sporck v. Pell, 759 F.2d 312, 315-16 (3d Cir. 1985); United States v. District Council of New York City and Vicinity of the United Bhd of Carpenters and Joiners of Am., 1992 WL 208284 at *12 (S.D.N.Y. Aug. 18, 1992); James Julia Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982). 20 Black. Srebnlck. Komspan &St S. 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax • www.RoyBlack.com EFTA00179009 not only violated the defendants' work-product privilege, but also abridged their Fifth Amendment right to due process and their Sixth Amendment right to effective assistance of counsel"); accord United States v. Marshank, 777 F.Supp. 1507, 1519 (N.D. Cal. 1991) ("[w]hen the government interferes in a defendant's relationship with his attorney to the degree that counsel's assistance is rendered ineffective, the government's misconduct may violate the defendant's Fifth Amendment right to due process as well as his Sixth Amendment right to counsel"). The subpoenas-at .issue here are akin to the conduct condemned in Horn. Here, through the issuance of a subpoena, the government seeks to track the investigation being conducted at the direction and under the supervision of his attorneys in an effort to obtain insight into defense counsel's strategy, tactics, and thought processes, without any concern for the rights of Mr. Epstein. Permitting the government to do lo would violate the work-product privilege, Mr. Epstein's Fifth Amendment right to due process and his Sixth Amendment right to effective assistance of counsel .4 Indeed, many of the ways in which the subpoenas at issue trample on Mr. Epstein's rights are the very problems sought to be avoided by the internal State proceedings were commenced against Mr. Epstein on July 17, 2006. Black Aff. 15. It is well established that an individual's Sixth Amendment right to counsel attaches once prosecution is commenced. See, e.g., Texas v. Cobb, 532 U.S. 162, 167 (2001) (Sixth Amendment right to counsel attaches once prosecution is commenced). 21 Black. SrebnIck. Komspan & Stun 201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131. Phone: • Fax •www.RoyBladc.com EFTA00179010 Department of Justice guidelines for the issuance of subpoenas seeking information relating to legal representation. As demonstrated above, a subpoena to a defense investigator under these circumstances is the same as a subpoena to defense counsel. And USAM Guideline §9-11.255 requires prior Department of Justice approval for the issuance of a subpoena to a lawyer. That requirement evidently was not met. See Black Aff. 115. Second, "because of the potential effects upon an attorney-client relationship that may result from the issuance of a subpoena for information relating to the attorney's representation of a client", the DOJ imposes strict requirements on such issuance. Among the requirements that must be met is that "there must be reasonable grounds to believe that . . . the information sought is reasonably needed for the successful completion of the investigation or prosecution. The subpoena must not be used to obtain peripheral or speculative information". USAM §9-13.410. Though these guidelines create no enforceable rights, the prosectitors' failure here to comply with the internal ••• requirements provide further evidence that these subpoenas are an inappropriate and unwarranted attempt to invade Mr. Epstein's defense camp. 22 Black, Srebnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax: • www.Koyalack.com EFTA00179011 IV. THE SUBPOENAS ARE UNREASONABLE IN THAT IT SEEKS PRODUCTION OF THINGS UNCONNECTED TO ANY CRIME UNDER INVESTIGATION. This Court has authority to review a grand jury subpoena for reasonableness. See, e.g., United States v. R. Enterprises, Inc., 498 U.S. 292, 300-01 (1991). While the Supreme Court has held that grand jury subpoenas are presumed reasonable, that presumption may be overcome and a subpoena quashed where, as here, "there is no reasonable possibility that the category of materials the [gjovernment seeks will produce information relevant to the, general subject of the grand jury's investigation". R. Enterprises, Inc., 498 U.S. at 301. Normally, as the Supreme Court noted in R. Enterprises, Inc., recipients of a grand jury subpoena have little or no knowledge of the crime the grand jury is investigating and will therefore be unable to challenge the issuance of the subpoena on reasonableness grounds. Id. at 301-02. Here, that is not the case. Mr. Epstein is aware not only of the subject matter, but the exact charges the grand jury is investigating. See Black Aff. 111. From that, it is clear that the evidence the government is attempting to obtain is wholly irrelevant to the grand jury's investigation. See Id. IV 2, 13. The requirement that a grand jury subpoena be reasonable and particularized is beyond dispute. Not only is that explicitly stated in the Fourth Amendment, but 23 Black. Srebnick. Komspan nnI 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00179012 the requirement is included in Fed. R. Crim. P. Rule 17(c). See, e.g., R. Enterprises, 498 U.S. at 299 (Rule 17(c) requires that grand jury subpoenas be reasonable); United States v. Dionisio, 410 U.S. 1, 11 (1973) ("[t]he Fourth Amendment provides protection against a grand jury subpoena duces tecum too sweeping in its terms to be regarded as reasonable"); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208-09 (1946) (holding ,that subpoenas although not searches and seizures under the Fourth Amendment, must be reasonable). Subpoenas, such as the ones here, which are overbroad and lack particularity such that they sweep within their scope a multitiate -of irrelevant documents is quintessentially unreasonable, whether assessed under the Fourth Amendment, the Due Process Clause, or Rule 17(c). Grand juries "are not licensed to engage in arbitrary fishing expeditions". R. Enterprises, Inc., 498 U.S. at 299. Yet that is precisely what enforcement of these subpoenas would permit — unbridled rununaging.by the government through an individual's "papers and effects" — namely, the contents of computers with no restriction or aim other than to "find something" of which the government has no evidence whatever exists. That renders these subpoenas the equivalent of a general search — the very evil that the Fourth Amendment was crafted to prohibit. 24 Black, Srebnick. Kornspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: • Fax: • vnsw.RoyBlack.com EFTA00179013 In its Requests at ll's and 2, rather than making any effort to limit the subpoenas to matters relevant to its investigation (which we submit could not here be done), the government instead improperly seeks the entire contents of the computers, despite no evidence they contain any documents of any conceivable relevance to the government's investigation. See Black Aff. Exhibit "A". Such a subpoena is unreasonable and overbroad in violation of the Fourth Amendment, the Due Process Clause, and Rule 17(c). • Similarly, the materials listed in 13 are fundamentally irrelevant to the government's investigation of Mr. Epstein, which is focused on allegations of sexual activity with underage girls. Neither Mr. Epstein's communications with his retained investigator, Mr. Riley (or his firm), nor any services Riley and his firm may have performed on behalf of Mr. Epstein, has any possible bearing on the government's investigation. Moreover, as demonstrated in Point III, supra, enforcement of the subpoenas as to 13 poses a grave threat 16 Mr. Epstein's Sixth ••• Amendment right to counsel and to his attorney-client and work-product . privileges. For instance, certain of the materials requested in 13, such as the Requests for "information related to the nature of the relationship between Mr. William Riley and/or Riley Kiraly and Mr. Jeffrey Epstein" (Black Aff. Exhibit "A"), on 25 Black. Srebnick. Komspan s8 Siinn 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fat • www.RoyBlack.com EFTA00179014 their face clearly implicate the work-product privilege; other Requests, such as those seeking billing records and records of services provided to Mr. Epstein, (id.), would require the redaction of work-product if the government were to be permitted access to them at all, given their irrelevance to the investigation. Since there is no issue as to Mr. Epstein's wealth or the source of the funds used to pay for the services, that irrelevance also extends to the requested documents showing the fees Mr. Epstein may have paid to Riley Kiraly for its services, as well. V. EVEN IF THE GOVERNMENT IS PERMITTED TO SEIZE THE COMPUTERS ON THE BASIS OF A GRAND JURY SUBPOENA, THE SUBPOENAS MUST BE QUASHED AS UNREASONABLE AND OPPRESSIVE, OVERBROAD AND UNPARTICULARIZED. Paragraphs 1 and 2 of the subpoenas suggest no limitation on the ability of the govemmel ters. Instead, the government purports to be session every bit of data stored therein, with 'me frame. Quite clearly, the subpoenas are "go fishing" in the computers. In fact, the gc r a belief that any information contained within the computers would be relevant to its investigation. See Black Aff. $12. Thus, Request $'s 1 and 2 cannot, consistent with the requirements of the Fourth Amendment and the protections against unreasonable subpoenas afforded by Rule 17(c), be enforced. Instead, the intervention of the Court is required to 26 Black. Srebnick, KomspanS 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax • www.RoyBlack.com EFTA00179015 prevent the government from using a grand jury subpoena to conduct an unfettered general search of the contents of the computers. See United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 938-39 (91" Cir. 2006) ("[i]t is not reasonable to allow the government to seize an indeterminately bounded array of computer data only later to set its own standards for review and retention thereof"). Further, where that which the government seeks is not the computers themselves but rather the content of the computers, it is that content which must be particularly described in the subpoena to comply with the reasonableness requirement. See In re Grand Jury Subpoena Duces Tecum Dated November 15, 1993, 846 F.2d 11, 13 (S.D.N.Y. 1994). The subpoenas at issue fail utterly to do so. Rather,- they are overbroad and unparticularized, and as such, cannot pass muster under either the Fourth Amendment or Rule 17(c). The "reasonableness" requirement is understood to contemplate' a requirement that the subpoena identify with particularity the documents to be produced. Fisher, 425 U.S. at 401 (Fourth Amendment protects against subpoenas which suffer from "too much indefiniteness or breadth in the things required to be particularly described"); Oklahoma Press, 327 U.S. at 209 ("the requirement is reasonableness, including particularity in describing the place to be searched and 77 Black. Srcbnick. Komspan & St S. 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: M • Fat • www.RoyBlack.com EFTA00179016 the persons or things to be seized"). Here, though the subpoenas describe with particularity "the computers", the subpoenas are wholly silent as to the real target — the contents of the computers. As courts have recognized in the context of search warrants authorizing searches of computers, the particularity requirement cannot be deemed satisfied absent specification of the documents or other materials which are the object of the search/subpoena. Courts are increasingly recognizing that careful attention to the Fourth Amendment's particularity requirement and overbreadth prohibition are critical in the context of computer searches. See, e.g., United States v. Adjani, 452 F.3d 1140, 1149 (9th Cir. 2006) ("[wje understand the heightened specificity concerns in the computer context, given the vast amounts of data they can store'); In re Search of 3817 W. West End, 321 F.Supp.2d at 958-59 (marshalling the reasons why "a request for the search and seizure of computers merits a close look at the particularity requirement"); see also U.S. Dep't of Justice, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations (July 2002) ("DOJ Computer Search Manual") ("[a]gents must take special care when describing the computer files or hardware to be seized"). Courts have held that "when the government seeks to seize the information stored on a computer, as opposed to the computer itself, that underlying 28 Black. Srcbnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: • Fax • www.RoyBlack.com EFTA00179017 information must be identified with particularity and its seizure independently supported by probable cause". United States v. Vilar, 2007 WL 1075041 at *36; United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) ("warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material"); United States v. Barbuto, 2001 WL 670930 at *5 (D.Utah April 12, 2001) (agents "should have known that the warrant needed to specify what types of files were. sought in the searching of the two computers so that personal files would not be searched); see also DOJ Computer Search Manual at 42 (instructing that "[i]f the probable cause relates only to the information . . . the' warrant should describe the information, rather than the physical storage devices which happen to contain it"). Thus, "[t]o withstand an overbreadth challenge, the search warrant itself, or materials incorporated by reference must have specified -the purpose for which the computers were seized and delineated the limits of their subsequent search". United States v. Hunter, 13 F.Supp.2d 574, 584 (D.Vt. 1998) Given these principles, the Requests contained in ¶'s 1 and 2 of the subpoenas are clearly unreasonable, since they purport to allow the government to search the entire contents of the computers with no requirement of showing reasonableness or relevance to the matters under investigation. That is not 29 Black. Srebnick. Komspan & S rm an 201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33B1. Phone: • FaX • www.RoyBlack.com EFTA00179018 permissible. See, e.g., Riccardi, 405 F.3d at 862-63 (warrant authorizing seizure of computer, all electronic and magnetic media stored therein, and a host of external storage devices without limitation unconstitutional as authorizing general search); United States v. Joe, 2007 WL 108465 at *7 (N.D.Cal. January 10, 2007) (holding "computers and related or similar devices, and information on hard or floppy drives, which may contain any documents and records . . . ." overbroad and ordering suppression); United States v. Slaey, 433 F.Supp.2d 499, 500 (E.D. Pa. 2006) ("[a]ny records, documents, materials and files maintained on a compute?' overbroad because it authorized agents to seize everything, even if unrelated to the offense under investigation and even if wholly personal); West End, 321 F.Supp.2d at 962 (refusing to approve unguided search, which the government indicated could require review of all the seized data, because "what the government seeks is a license to roam through everything_ in the computer without limitation and without standards"); United States v. Clough, 246 F.Supp.2d 84, 87-88 (D. Me. 2003) (warrant to search computers which contained no limitations on the search and no references to statutes, crimes, or _ illegality was unconstitutionally overbroad); Hunter, 13 F.Supp.2d at 584 (warrant authorizing seizure of all computers, all computer storage devices, and all computer software systems unconstitutionally overbroad). 30 Black Srebnick. Komspan & Stum 201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: • Far • wonv.Royalack.com EFTA00179019 Where, as here, computers or their contents or external storage media and devices are sought to be hauled away by the government for later off-site search, courts have an obligation to ensure that the subsequent search remains within the bounds of the Fourth Amendment reasonableness requirement. "[R]esponsible officials, including judicial officers, must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy". West End, 321 F.Supp.2d at 960, quoting Andresen v. Maryland, 427 U.S. 463, 482 n.I I (1976). Most recently, in Warshak v. United States, 2007 WL 1730094 (6th Cir. June 18, 2007), the Sixth Circuit, in the context of upholding a Fourth Amendment challenge to the provisions of the Stored Communications Act which authorize the government to obtain an individual's emails from his Internet Service Provider pursuant to court order or subpoena on a showing of less than probable cause and without advance notice to the subscriber, expressly addressed the particularity requirement where subpoenas as well as searches of computers are concerned: Because our opinion speaks to the appropriate remedy in this case, we note one other important principle that applies both to e-mail seizures pursuant to a warrant supported by probable cause, and to compelled disclosure through a process akin to that involved with subpoenas. In neither instance is the government necessarily entitled to every e-mail stored with the ISP, many of which are likely to be entirely unrelated to its specific investigation . . . where a subpoena . . . compels the disclosure of e- 3 Black Srebnick Komspan ISB 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlaciccom EFTA00179020 mails, the demand must be reasonable in scope and relevance. Id. at 15 n.8 (citations omitted). Similarly, the court in In re Grand Jury Subpoena Duces Tecum Dated November 15, 1993, supra, 846 F.24 11, was called upon to review a grand jury subpoena that sought all computer hard drives of computers supplied to a number of officers and employees or a corporate entity, as well as all computer-accessible data, including all floppy disks, created by or on behalf of the specified officers or employees. The Court held that, because there were ways in which the government could have narrowed the subpoena to relevant documents, such as documents containing certain key words, the subpoena at issue unnecessarily demanded documents irrelevant to the grand jury inquiry and was, therefore, unreasonably broad under Rule 17. Likewise, in In re Amato, 2005 WL 1429743 at *11-*12 (D. Me. June 17, 2005), the Court, relying on a number of cases dealing with searches of computers pursuant to warrants, granted a motion to quash with respect to the paragraph of the subpoena requesting the production of all computers and computer related equipment: "Inasmuch as Category 10 of the Subpoenas in essence requests the turnover of all computers (and related objects) of both corporations with no express safeguard• against a subsequent rummaging through, 32 Black Srebnick Kornspan & Slum 201 S. Biscayne Boulevard. Suite 1300. Miami. Florida 33131 • Phone: Fax: • www.RoyBlack.com EFTA00179021 and seizure of, irrelevant as well as relevant data, it cannot withstand Fourth Amendment reasonableness scrutiny". Courts are now recognizing that the seizure of a computer for later off-site search of its contents requires fresh thinking, and cannot simply be permitted by reference to the law that permits seizure of a file cabinet or other container of physical documents. See, e.g., United States v. Hill, 459 F.3d 966, 968 (9th Cir. 2006) ("computer-related. searches can raise difficult Fourth Amendment issues different from those encountered when searching paper files"); United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001) ("[b]ecause computers can hold so much information touching on many different areas of a person's life, there is a greater potential for the "intermingling" of documents and a consequent invasion of privacy when police execute a search for evidence on a computer"); United States v. Campos, 221 F.3d 1143, 1148 (10th Cir. 2000) (storage capacity of computers may require law enforcement officers to take a special approach because of intermingled documents); West End, 321 F.Supp.2d at 959 ("[t]he capacity of the computer to store these large quantities of information increases the risk that many of the intermingled documents will have nothing to do with the alleged criminal activity that creates probable cause for the seizure"); Hunter, 13 F.Supp.2d at 583 ("[c]omputer searches present the same problem as document 33 Black. Srebnick. Kornspan & St Sn 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: Fat lackcom EFTA00179022 searches — the intermingling of relevant and irrelevant material — but to a heightened degree"). Recently, the Ninth Circuit expressly applied the principles of in United States v. Tamura, 694 F.2d 591 (9th Cir. 1982), a leading case on the Fourth Amendment issues presented by intermingled documents in the traditional paper document search context? in the computer context, noting that because "the computer era adds new complexity, to the test of reasonableness under the Fourth Amendment", it viewed Tamura "as especially important in the computer context". United States v. Comprehensive Drug Testing, Inc., 473 F.3d 915, 939 (9t1 Cir. 2006). The review procedure outlined in Tantura was, the Court concluded, "necessary to ensure that the seizure of intermingled computer records remains reasonable". Id. at 938. Therefore, . . .in the case of a lawful and reasonable seizure of intermingled computer records for off-site review . . .our precedents and the general reasonableness mandate of the Fourth Amendment require the supervision of a magistrate. It is not reasonable to allow the government to seize an 5 In Tamura, the Court suggested that where documents are so intermingled that they cannot be feasibly sorted on site, agents "generally can avoid violating Fourth Amendment rights by sealing and holding the documents pending approval by a magistrate of a further search, in accordance with the procedures set forth in the American Law Institute's Model Code of Pre-Arraignment Procedure". 694 F.2d at 595-96. In fact, the Court continued, if the officers are aware prior to the search that there will be a need to transport documents to another location for search, they should apply to the magistrate for specific approval of large-scale removal of material, which should be granted by the magistrate "only where on- site sorting is infeasible and no other practical alternative exists". Id. at 596. The "essential safeguard" required, the Court stated, is "that wholesale removal must be monitored by the judgment of a neutral, detached magistrate". Id (emphasis added) 34 Black. Srebnick, Komspan S& nni 201 S. Biscayne Boulevard, Suite 1300 • Miami. Honda 33131 • Phone: • Fat • www.RoyEllackcom EFTA00179023 indeterminately bounded array of computer data only later to set its own standards for review and retention thereof Id. (emphasis added). There is no question that Mr. Epstein has an important expectation of privacy in the contents of the subpoenaed materials. Amongst other safeguards, the Fourth Amendment protects Mr. Epstein's privacy absent probable cause that any particularized file or document contains evidence of a federal crime. The issuance of a subpoena does not eliminate the necessity of probable.cause when the objects of the compulsion are documents in which a citizen has an expectation of ••••, privacy. In cases where the objects of a subpoena are business records, such as bank records in which a citizen has no expectation of privacy (see, e.g., United States v. Miller, 425 U.S. 435 (1976)), or telephone toll records (Smith v. Maryland, 442 U.S. 735, 740 n. 5 (1979)), a subpoena is sufficient. In cases, however, where an expectation of privacy exists, a subpoena lacking probable cause does not accord with Fourth Amendment rights. See, generally, Katz v. United States, 389 U.S. 347 (1967). For these reasons, to the extent the subpoenas purport to permit the grand jury not only to seize, but to search the computers, they are unreasonable. Before the government may be permitted to search the computers, it must particularize the 35 Black. Srebnick. Komspan&Shn 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33B1 • Phone: Fare • www.RoyBlack.com EFTA00179024 items to be seized after a demonstration of probable cause to believe that the computers contain such items. VI. THE COURT MUST ENSURE THAT THE GOVERNMENT IS NOT PERMITTED ACCESS TO MATERIALS PROTECTED BY THE ATTORNEY-CLIENT OR WORK-PRODUCT PRIVILEGES. Though we believe the subpoenas should be quashed in their entirety, in the event the Court determines to enforce the subpoenas, the Court should be particularly careful to assure that safeguards are put in place to prevent the disclosure of attorney-client communications and attorney work-product. The subpoenaed -materials contain information and documents protected by the attorney-client and work-product privileges, including attorney-client communications between Mr. Epstein and attorneys regarding various legal matters with respect to which he sought and obtained the assistance of counsel. Black Aft 113. Prior to any production of the subpoenaed computers, counsel must be permitted to review an image of their contents for the purpose of identifying all privileged materials contained in the computers, segregating the privileged materials from the remaining content of the computers to ensure that privileged materials do not fall into the hands of government investigators. The Sixth Circuit recently adopted a similar procedure in the context of traditional subpoenaed documents. The Court in In re Grand Jury Subpoena, 454 F.3d 511 (6th Cir. 2006), was called upon to "determine who has the right to 36 Black, Srcbnick, Komspan &S S• 201 S. Biscayne Boulevard, Suite 1300 • Miami. Florida 33131 • Phone: • Fax • www.RoyBlack.com EFTA00179025 conduct a review for privilege of documents subject to a grand jury subpoena directed to a third party who possesses the documents but has not yet produced them to the government: the targets of the investigation whose rights of privilege are potentially implicated, or the federal government, operating a `taint team' behind a `Chinese wall' or protective screen". Id. at 512. The district court had rejected the proposal by the targets of the investigation that their counsel review the responsive documents and prepare a privilege log, with disputes to be resolved by the court in favor of first-instance review by a government "taint team". ' The Court, noting that "t7and juries are not empowered to override private rights in all cases", and, in particular, "may not use their investigatory authority to violate a valid privilege" (id at 519), reversed the district court, concluding that the risks to the attorney-client privilege inherent in the government's review of privileged materials were such that the targets should be permitted the opportunity to conduct their own privilege review prior to production. See id. at 521-23. Interestingly, in that case, the government conceded that "the leaking of privileged materials to investigators would raise the specter of Kastigar-like evidentiary hearings". Id. at 517. This case presents the same specter should Mr. Epstein be indicted. The recognized importance of the attorney-client privilege is such that this Court should permit Mr. Epstein's counsel to review the contents of the computers to identify all privileged information, segregate it from the remaining contents of 37 Black. Srebnick. Komspanan • 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax • wmv.RoyBlack.com EFTA00179026 the computers, and create a privilege log. Any disputes regarding privilege should be resolved by the Court prior to access by the government. VII. SUBPOENAING PURELY PRIVATE PAPERS VIOLATES THE FIFTH AMENDMENT UNDER BOYD. In Boyd v. United States, 116 U.S. 616 (1886), the Supreme Court condemned the seizure of an individual's private personal papers and their use as evidence against him as violative of the Fifth Amendment. While admittedly Boyd has been deeply eroded, and language in Hubbell, 530 U.S. at 35-36, would appear to be at odds with this portion of Boyd, the relevant portion of Boyd pertaining to an individual's private papers has not been directly overruled. Indeed, the Eleventh Circuit, in a case decided pre-Hubbell, left open the question of the continued vitality of Boyd with respect to personal documents. In re Grand Jury Investigation, 921 F.2d 1184, 1187 n.6 (11th Cir. 1991). And see Barrett v. Acevedo, 169 F.3d 1155, 1167 58th Cir. 1999) ("whether Doe's rationale extends to purely personal papers in a defendant's possession is still open to some debate"). Permitting the government to compel an individual to turn over to the government the entire contents of his computers for the government to do with it as it will, including reading all of his most private thoughts and communications, and then using those private writings to try him for a crime, "would break the heart of our 38 Black. Srebrack. KornspanS• 2015. Biscayne Boulevard, Suite 1300 • Miami. Florida 33131. Phone: • Fax • www.RoyBlack.com EFTA00179027 sense of privacy". In re Steinberg, 837 F.2d 527, 530 (1st Cir. 1988). It should not be permitted under the Fifth Amendment. CONCLUSION For all these reasons Mr. Epstein's must be permitted to intervene and to move to quash the subpoena duces tecum issued to William Riley, and the motion to quash the subpoenas should be granted in its entirety. Respectfully submitted, BLACK, SREBNICK, KORNSPAN & STUMPF, PA. 201 South Biscayne Boulevard, Suite 1300 Miam 1prida 33131 By ROY BLA K, Florida Bar No. Counsel for Jeffrey Epstein CERTIFICATE OF SERVICE I HEREBY CERTIFY that on July 17, 2007, a true and correct copy of the forging motion was furnished by facsimile and U.S. mail to: Maria , Esq., U.S. Attorney's Office, 500 uth Australian Avenue, Suite 400, West Palm Beach, FL 33401. By: ROY BLACK, ESQ Counsel for Jeffrey Epstein 39 Black. Srebnick. Kornspan aF n 201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: • Fat • www.RoyBlack.com EFTA00179028 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA GRAND JURY MATTER FILED UNDER SEAL IN RE GRAND JURY SUBPOENAS ) DUCES TECUM ISSUED TO ) FGJ 07-103 (WPB)/No. OLY -64 WILLIAM RILEY AND ) RILEY KIRALY ) ) AFFIDAVIT OF ROY BLACK, ESQ., IN SUPPORT OF MOTION OF JEFFREY EPSTEIN TO INTERVENE AND TO QUASH GRAND JURY SUBPOENAS STATE OF FLORIDA ) ss: COUNTY OF DADE ROY BLACK an attorney at law, duly sworn, deposes and says: 1. I am an attorney at law, duly admitted to practice before the State of Florida and the United States District Court for the Southern District of Florida. 2. As detailed further below, I am counsel to Jeffrey Epstein, the movant herein. It is my intention herein not to waive the attorney-client, attorney work-product or any other privileges, and I have no authority to do so. I make this affidavit solely to provide sufficient facts to support Mr. Epstcin's motion to intervene and to quash the subpoenas duces tccum issued to William Riley and Riley Kiraly which make identical requests, copies of which are annexed hereto as Exhibit "A". 3. In or around September or October 2005, I was consulted and retained by Mr. Epstein to represent him in connection with an investigation being conducted by the State EFTA00179029 Attorney in Palm Beach County. I understood that the State Attorney was investigating allegations that Mr. Epstein had paid women to provide him with massages in his home and that one or more of the women were alleged to have been under the age of 18 at the time of the massage. It was further alleged that during the course of one or more of the massages, sexual activity may have occurred. 4. In connection with my representation of Mr. Epstein, in or about September or October 2005 I retained the firm of Riley Kiraly, private investigators, to assist me in my representation of Mr. Epstein. I began thereafter to work in particular with licensed investigator William Riley. Without disclosing any work done by Mr. Riley or his firm on Mr. Epstein's behalf and at my direction, any actions thereafter taken by him or the firm were taken in connection with the legal representation of Mr. Epstein. 5. On July 17, 2006, Mr. Epstein was charged by a grand jury sitting in Palm Beach County with one count of solicitation of a prostitute, a third degree felony. That charge is pending. 6. Both prior to the charge being brought and thereafter I and other attorneys representing Mr. Epstein were provided with open disclosure of the State's evidence. As a result, I have had the opportunity to review all or virtually all of the evidence obtained by the State in its investigation. Included in the material I have reviewed are the audio and/or video taped sworn statements of 18 witnesses, transcripts of all 18 of those recorded sworn statements, the transcript of one additional sworn statement, and over 125 pages of documents prepared by the Palm Beach Police Department which detail every sworn statement obtained by detectives, every interview conducted by detectives, all their investigative efforts and all the evidence gathered. These documents include the entire police file, as well as the probable cause affidavits - 2 - EFTA00179030 prepared by Palm Beach detectives and the application for a search warrant of Mr. Epstein's home. 7. Reviewing these materials has afforded me a thorough understanding of the factual bases for any allegations that have been, or could have been, made against Mr. Epstein. 8. In or around January 2007, a federal grand jury in this District began a parallel investigation of Mr. Epstein to determine whether any federal laws were broken by Mr. Epstein's alleged conduct. We understood the conduct being scrutinized by the federal grand jury was the same as the subject of the State prosecution. Indeed, during the course of the federal investigation, prosecutors asked for and were provided with copies of the 18 recorded sworn witness statements, and further asked for copies of the transcripts of those sworn statements. 9. That the two investigations examine the same alleged conduct is also clear from the attached letter of the Chief of the Palm Beach Police Department expressing the Department's displeasure with the actions of the state grand jury and State Attorney's Office, and explaining he was referring the matter to federal authorities in order to initiate a federal investigation of the facts. See Letter of Michael S. Reiter, Chief of Police, dated July 24, 2006, annexed as Exhibit "B". At the same time, the Palm Beach Police Department both publicly released copies of its files, including the 87 page police report and probable cause affidavits prepared by its detectives, and publicly announces its intentions to bring the investigation to federal authorities due to the Department's dissatisfaction with the State Attorney's handling of the matter. See News Articles, annexed as Exhibit "C". 10. As part of that subsequent parallel federal investigation, I and other attorneys representing Mr. Epstein have repeatedly met with and spoken to federal prosecutors directing - 3 - EFTA00179031 the investigation. Again, those discussions have afforded me and other counsel an opportunity to understand the factual bases for any charges that could purportedly be brought. 11. I understand from my conversations with federal prosecutors that the federal statutes being considered are potential violations of 18 U.S.C. §2423 (travel for the purpose of engaging in unlawful sexual activity) and 18 U.S.C. §2422(b), use of the Internet or other means of interstate communication to persuade, entice or coerce another to engage in unlawful sexual activity. 12. I can state without any hesitation, based on my knowledge of the evidence being reviewed, there have been no claims, nor is there any factual support for the making of any claims, that Mr. Epstein ever, directly or indirectly, used a computer to locate, to entice, to solicit, to coerce, or to persuade any woman to engage in any unlawful sexual activity. Nor is there any claim or reference to the use or display of any web based or computer based pornography. Further, there are no references whatever to the use of computers in connection with the alleged conduct at issue here. 13. In short, I have had a rare opportunity to view at least the whole of the State's evidence, which was turned over to federal authorities as part of their grand jury investigation, and to discuss any additional federal evidence gathered during the federal grand jury investigation. At no time has any potential claimant or any prosecutor ever mentioned the use of a computer by Mr. Epstein to engage in any wrongdoing. 14. These subpoenas were not issued in a vacuum. They are simply the most recent in a series of highly intrusive and unusual attempts to acquire highly personal and/or privileged information concerning Mr. Epstein that can have no relevance whatever to the investigation, including Mr. Epstein's personal tax returns (see Letter of , Assistant United - 4 - EFTA00179032 States Attorney, dated November 16, 2006, annexed as Exhibit "D"), medical records including treatment notes of Mr. Epstein's treatment by a chiropractor (see Grand Jury Subpoena Duces Tecum, dated March 13, 2007, to Dr. Thomas Rofrano annexed as Exhibit "E"), and now, invasion of the defense camp by seeking records of the investigative work performed by Mr. Riley on behalf of your affiant engaged as Mr. Epstein's counsel in the very same investigation. 15. While the propriety of those other subpoenas is not at issue here, the subpoenas to Mr. Riley and to his firm are. When it was pointed out to prosecutors that internal Department of Justice rules require, inter alia, that issuance of the subpoenas be predicated on the pre-approval of the Assistant Attorney General of the Criminal Division under the United States Attorneys' Manual ("USAM"), §9-11.255, the question as to whether such approval had been obtained was simply ducked in an exchange of correspondence. See Letter of Roy Black; Esq., to Assistant United States Attorney, dated July 13, 2007, and the letter from Ms. in response, annexed as Exhibits "F' and "G", respectively. Though such guidelines create no third party rights, the fact that the required approval evidently was not obtained highlights the continuing overreaching of this investigation. 16. Moreover, quite apart from whether the required steps were taken internally to obtain approval before issuing the subpoenas, I also challenge whether, as a substantive matter, the government could meet the internal guidelines necessary for issuing a subpoena seeking information relating to the representation of a client, as set forth in USAM §9-13.410. 17. I also want to address the matter of attorney-client communications and attorney work-product. While, for purposes of this motion, we are not conceding the existence of any computers that would be responsive to the subpoena, to the extent there are any such computers, they would contain documents that are clearly attorney-client communications and attorney - 5 - EFTA00179033 work-product. Though for the reasons set forth in the motion the subpoenas should be quashed in their entirety, to the extent the Court allows the government to review the contents of the computer, I respectfully submit that a procedure must be instituted to allow for the protection of Mr. Epstein's attorney-client communications and attorney work-produc Sworn to before me this • 17th day of July 2007. Notary Public STAMP/SEAL Personally known OY BL CK "' YIN WANDA GOMEZ • MY COMMISSON I DO 240$92 EXPIRES: Noromber 22, 2007 ?tome kohl Tin hist Mrs Sucks; OR Produced identification Type of Identification Produced: - 6 - EFTA00179034 EXHIBIT A EFTA00179035 JUN-29-200? 11:18 F. WEST PALM BEACH RR P.02 United States District Court SOUTHERN DISTRICT OF FLORIDA TO: Custodian of Records Riley Kiraly Commercial Center of Miami 6135 NW 1676 Street E-26 Miami, FL 33015 SUBPOENA TO TESTIFY BEFORE GRAND JURY Fal 07-103(WPB)/No. OLY-64 SUBPOENA FOR: PERSON DOCUMENTS OR OBJECF[M YOU ARE HEREBY COMMANDED to appear and testify before the Grand Jury of the United States District Court at the place, date and time specified below. PLACE: United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: July 10, 2007 11:00 pm' YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): THE DOCUMENTS AM) OBJECTS LISTED ON ATTACHMENT A. *Please coordinate y ur compliance with this subpoena and confirm the date, time, and appearance with S/A , Federal Bureau of Investigation; Telephone: This subpoena shall remain in effect until you are granted leave to depart by the court or by an officer acting on behalf of the court. CLERK (EtY)DEPUTY CLERK This subpoena is issued upon application elf not applicable, <Ma 'none.' Name, Address and Phone Number of Assistant U.S. Attorney Assistant U.S. Anorney SOO o. Australian i Avenue, Suite 400 We L 33401-6235 Tcl: Pax: Toby:Rd lelku ofACIII0 FORM ORD-227 JAN.86 EFTA00179036 JUN -20 -2om 11:19 WEST PALM REACH RA P.03 ATTACHMENT A SUBPOENA TO PAUL A. LAVERY 1. All computer equipment and electronic storage media removed from the residence located at 358 El Brillo Way, Palm Beach, Florida, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. • 2. All computer equipment and electronic storage media that currently belongs to, or has ever belonged to, Jeffrey Epstein, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. 3. All documents and information related to the nature of the relationship between Mr. William Riley and/or Riley Kiraly and Mr. Jeffrey Epstein, including, but not limited to, retainer agreements; employment agreements; billing statements (whether submitted directly to Mr. Epstein or to a third party for reimbursement); records of the dates when services were performed and the hours worked; telephone logs or records of dates of communications with Mr. Epstein (or with a third party on Mr. Epstein's behalf); appointment calendars/datebooks and the like (whether in hard copy or electronic form) for any period when work was performed on behalf of Mr. Epstein or when any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf); and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. EFTA00179037 JUN-20-2007 11: 19 WEST PALM BEACH RA P.04 United States District Court SOUTHERN DISTRICT OP FLORIDA TO: William Riley Riley Kiraly Commercial Center of Miami 6135 NW 167' Street E-26 Miami, FL 33015 SUBPOENA TO TESTIFY BEFORE GRAND JURY FGJ 07-103(WPB)/No. OLY-63 SUBPOENA FOR: PERSON a DOCUMENTS OR OB3ECT[Sj YOU ARE HEREBY COMMANDED to appear and testify before the Grand Juryof the United States District Court at the place, date and time specified below. PLACE: • United States District Courthouse 701 Clematis Street West Palm Beach, Florida 33401 ROOM: Grand Jury Room DATE AND TIME: July 10, 2007 1:00 pm* YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s): THE DOCUMENTS AND OB,TECTS LISTED ON ATTACHMENT A. '"Please coordinate MIR ROtntiliance with his subpoena and confirm the date, time, and I ' appearance with S/A I Federal Bureau of Investigation, Telephone: This subpoena shall remain in effect until you arc granted leave to depart by the court or by an officer acting on behalf of the court. DATE: June 18, 2007 This subpoena is issued upon application n",. nik•A q/Atn Ar A ?twit... i • not appbcoNe. puce "nonc.' Name, Addre ne Number of Assistant U.S. Attorney Assistant U.S. Attorney 500 So_ Australian Avenue, Suite 400 Tel: 33401-623.5 Fax To a used la Ito. of "OI10 FORM 0RD-227 JAN.66 EFTA00179038 JUN-20-2007 11:19 WEST PALM BEACH RA P.05 ATTACHMENT A SUBPOENA TO rA,UL A. LAVERY 1. All computer equipment and electronic storage media removed from the residence located at 358 El Brillo Way, Palm Beach, Florida, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, 'printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. 2. All computer equipment and electronic storage media that currently belongs to, or has ever belonged to, Jeffrey Epstein, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Toms, DVDs, floppy diskettes, digital cameras, and memory cards. 3. All documents and information • related to the nature of the relationship between Mr. William Riley and/or Riley Kiraly and Mr. Jeffrey Epstein, including, but not limited to, retainer agreements; employment agreements; billing statements (whether submitted directly to Mr. Epstein or to a third party for reimbursement); records of the dates when services were performed and the hours worked; telephone logs or records of dates of communications with Mr. Epstein (or with a third party on Mr. Epstein's behalf); appointment calendars/datebooks and the like (whether in hard copy or electronic form) for any period when work was performed on behalf of Mr. Epstein or when any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf); and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. TOTAL P.05 EFTA00179039 EXHIBIT B EFTA00179040 TOWN OF PALM BEACH POLICE DEPARTMENT A NATIONAL AND STATE ACCREDITED LAW ENFORCEMENT AGENCY July 24, 2006 HAND DELIVERED Dear M Via Your daughterawas the victim of a crime which has been investigated by the Palm Beach Police Department and subsequently referred for prosecution to the Palm Beach County State Attorney's Office. You may be aware that Jeffrey Epstein was indicted on charges of solicitation for prostitution by a State of Florida grand jury last week and turned himself in at the Palm Beach County jail on July 23; 2006. While I do not speak for them, it is my understanding that is the full context in which the Palm Beach County State Attorney's Office intends to address the charges that involved the crime in which your daughter was victim. Please know, that it is the role and responsibility of law enforcement to investigate crime and to refer appropriate charges to the prosecutor for consideration. I believe that the Palm Beach Police Department has acted competently and responsibly in carrying out this role. Should you have any questions concerning the state prosecution of this matter, they are best addressed by the Palm Beach County State Attorney's Office.