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KnEusuctt-WAtsit, COMPIANI & VARGAS, BA. SUITE 503, FLAGLER CENTER 501 SOUTH FLAGLER DRIVE WEST PALM BEACH. FLORIDA 33401.5913 JANE KREUSLER-WALSH BARBARA J. COMPIANI REBECCA MERCIER VARGAS BOARD CERTIFIED APPELLATE LAWYERS By Hand Delivery Honorable Jeffrey Colbath Palm Beach County Courthouse Fifteenth Judicial Circuit 205 North Dixie Highway, Room 11F West Palm Beach, FL 33401 June 30, 2009 Re: Epstein v. State of Florida 15th Circuit Court Case No. 2008CF009381A Dear Judge Colbath: TELEPHONE (56 1) 659-6455 FACSIMILE (561) 820-8762 Enclosed is a copy of Epstein's Emergency Petition for Writ of Certiorari, Emergency Motion to Review Denial of Stay, Motion to Use One Appendix and Motion to Seal, as filed with the Fourth District Court of Appeal. Due to the volume of the appendix, we have only enclosed the table of contents. Please let us know if you wish to receive a copy of the appendix. Thank you. Very truly yours, E KREUSLER-WALSH JKW/bl Enclosure cc/enc. Robert D. Critton Jack A. Goldberger Jeffrey H. Sloman Judith Stevenson Arco William J. Berger Deanna K. Shullman Spencer T. Kuvin EFTA00180621 JUN-26-2003 FRI 02:28 PM FAX NO. 5618358691 P. 01 Date: 6/26/09 ATTERBURY, GOLDBERGER & WEISS, P.A. ATTORNEY AT LAW SUITE 1400 250 AUSTRALIAN AVENUE SOUTH WEST PALM BEACH, FLORIDA 33401-5086 TELEPHONE FAX (561) 835-8691 FAX COVER SHEET To: R. Alexander Acosta, Esq. USAO Barbara Burns, Esq. ASAO Bradley J. Edwards, Esq. William J. Berger, Esq. Robert D. Critton, Esq. Spencer T. Kuvin, Esq. Subject: State ofFlorida v. Epstein Pages: 3 including this cover sheet. See attached letter. ORIGINAL WILL BE SENT: YES _X NO IF THERE ARE ANY PROBLEMS WITH THE TRANSMISSION, PLEASE CONTACT (561) 659-8300 AS SOON AS POSSIBLE. The Information contained in this facsimile message is attorney privileged and confidential information Intended only for the use of the Individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copy of this communication is strictly prohibited. If you have received this communication in orror, please immediately notify us by telephone. Thank you. EFTA00180622 JUN-26-2009 FRI 02:28 PM JOSEPH R. ATTERBURY JACK A. GOLOBERGER JASON S.WEISS Band CercificKI CrImin3lTripl torney I Meadow of NIVII Jersey Si float; flArs June 26, 2009 TELECOPIED THIS DATE The Honorable Jeffrey Colbath Palm Beach County Courthouse 205 N. Dixie Highway Room 11F West Palm Beach, FL 33401 Re; State of Florida v. Jeffrey Epstein Dear Judge Colbath: On behalf of Mr. Epstein, we strongly object to the proposed order submitted by Deanna Shullman on behalf of the Palm Beach Post. The court has already entered an order dated June 25, 2009 on: a) Non-party, E.W.'s Motion to Vacate Order Sealing Records and Unseal Records b) Palm Beach Post's Motions to Intervene and petition for Access c) B.B's Motions to Intervene and for an order to Unseal Records d) Jeffrey Epstein's Motion to Make Court Records Confidential. The only matter before the court today was Defendant Epstein's Motion for a Stay which the court denied. Contrary to the assertions in the proposed order submitted to you by the Palm Beach Post, the court made a specific finding that the Defendant Epstein has met his burden of Irreparable harm. Additionally, all of the other matters contained in the proposed order were addressed in the court's Order of June 25, 2009. It is the position of Defendant Epstein that the order on today's Motion to Stay should simply state that the Defendant's Motion to Stay is denied. In this way, the court's order of June 25, 2009 on the merits of the issue and the order of the court One Clearlake Centre, Suite 1400 250 Australian Avenue South West Palm Reach. FL 33401 . . _ n SRI .659. 8300 f 561.835.8691 www.aowna.eom EFTA00180623 P. 03 JUN-26-2009 FRI 02:28 PM The Honorable Jeffrey Colbath June 26, 2009 Page 2 FAX NO. 5618358691 denying the stay motion can properly be reviewed by the Fourth District Court of Appeal. Very truly yqurs, ACK A. GOLDBERGER JAG:cg cc: U.S. Attorney's Office (via facsimile) State Attorney's Office(via facsimile) Deanna K. Shullman, Esquire (via facsimile) Bradley J. Edwards, Esquire (via facsimile) Spencer t. Kuvin, Esquire (via facsimile) EFTA00180624 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION "W" CASE NO. 502008CF009381AXXMB 502006CF0094S4AXXMB STATE OF FLORIDA, vs. JEFFREY EPSTEIN, Defendant ORDER DENYING MOTION TO STAY DISCLOSURE AGREEMENT THIS MATTER came before the Court at a hearing on June 26, 2009, on Jeffrey Epstein's Motion to Stay the Disclosure of the Non-Prosecution Agreement and the Addendum thereto. The Court notes the parties were present and represented by counsel. Based upon argument, it is ORDERED AND ADJUDGED that 1. The Motion to Stay is denied. 2. The Clerk of Court shall make the documents available for disclosure at noon on Thursday, July 2, 2009. It is the intent of the Court to give the Defendant, Mr. Epstein, and his attorney an opportunity to have this Court's orders reviewed by the 491DCA. If the Clerk gets no direction from the Appellate Court, she shall disclose the documents on the date referred to above. DONE AND ORDERED in West Palm Beach, Palm Beach County, Florida this SIGNED AND DATED day of June, 2009. 1 JUN 2 6 2009 JEFFREY liCOLBATH _COLSATH Circuit Court Judge EFTA00180625 Page Two Case No. 502008CF009381AXXMB/502006CF009454AXXMB Order Denying Motion to Stay Disclosure Agreement Copies furnished: R. Alexander Acosta, U.S. Attorney's Office - Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 Barbara Burns, Esq., State Attorney's Office 401 North Dixie Highway West Palm Beach, FL 33401 William J. Berger, Esq. Bradley J. Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard., Suite 1650 Ft. Lauderdale, FL 33394 Robert D. Critton, Esq. Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 Jack A. Goldberger, Esq. Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 14O0 West Palm Beach, FL 33401 Spencer T. Kuvin, Esq. Leopold-Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Deanna K. Shullman, Esq. P. O. Box 2602 Tampa, FL 33602 EFTA00180626 IN THE CIRCUIT COURT OF THE blr liENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2008CF009381A DIVISION W STATE OF FLORIDA v. JEFFREY EPSTEIN, Defendant. EPSTEIN'S MOTION TO STAY DISCLOSURE OF THE NON- PROSECUTION AGREEMENT AND ADDENDUM PENDING REVIEW Defendant, JEFFREY EPSTEIN ("EPSTEIN"), by and through his undersigned counsel and pursuant to Rule 9.310, Florida Rules of Appellate Procedure, moves to stay disclosure of the Non-Prosecution Agreement and Addendum (collectively, the "NPA") pending review, and states: 1. In the event the Court grants Nonparty E.W.'s Motion to Vacate Order Sealing Records and Unseal Records, grants Palm Beach Post's Motion to Intervene and Petition for Access and/or denies EPSTEIN's Motion to Make Court Records Confidential, EPSTEIN moves to stay the disclosure of the NPA pending review by the Fourth District Court of Appeals. 2. Rule 9.310(a), Florida Rules of Appellate Procedure, provides in pertinent part, "...a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion , to grant, modify or deny such relief." EFTA00180627 3. A stay pending review is warranted under the circumstances because of the irreparable harm that would be caused by disclosure of the NPA including, but not limited to, substantial injury to a party by disclosing matters protected by common law and privacy rights, substantial injury to a compelling government interest, substantial injury to innocent third parties and a serious imminent threat to the fair, impartial and orderly administration of justice as set forth in the hearing record date June 25, 2009. 4. In Mariner Health Care of Nashville, Inc. ■ Baker, 739 So. 2d 608, 609 (Fla. 1st DCA 1999), defendant Mariner filed a petition for writ of certiorari after the trial court compelled it to produce certain incident reports. Mariner also moved for a stay pending review pursuant to Fla. R. App. Pro. 9.310. The trial court advised the parties that Mariner would be required to submit the incident reports to the court under seal as a prerequisite to a stay. Mariner refused to produce the documents under seal and the trial court denied the motion for stay and imposed daily fines until the documents were produced. Id. The First District Court of Appeals affirmed the trial court's order and noted Mariner has failed to explain how the production of the reports under seal would result in any prejudice. To the contrary, the records will be protected from disclosure during the entire course of the certiorari proceeding before this court. No harm can be done if this court ultimately determines that the reports are protected by the work product privilege. Id. at 610. 5. In the instant case the NPA is already filed under seal. Should the Court grant Nonparty E.W.'s Motion to Vacate Order Sealing Records and Unseal Records, grant Palm Beach Post's Motion to Intervene and Petition for Access and/or deny 2 EFTA00180628 EPSTEIN's Motion to Make Court Records Confidential, EPSTEIN requests the Court exercise its discretion under Fla. R. App. Pro. 9.310(a) and enter a stay pending review by the 41h DCA. 6. No harm will be done if the NPA remains under seal pending appellate review. To the contrary, EPSTEIN will suffer irreparable harm if a stay is not entered and the NPA is disclosed to the public. WHEREFORE, Defendant, JEFFREY EPSTEIN, respectfully requests that if the Court grants Nonparty E.W.'s Motion to Vacate Order Sealing Records and Unseal Records, grants Palm Beach Post's Motion to Intervene and Petition for Access and/or denies EPSTEIN's Motion to Make Court Records Confidential, the Court enter a stay pending review and grant any additional relief the Court deems just and proper. Certificate of Service WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Hand Delivery to JEFFREY SLOMAN, ESQ., United States Attorney's Office — Southern District, 500 S. Australian Avenue, Suite 400, West Palm Beach, FL 33401, JUDITH STEVENSON AREO, ESQ., State Attorney's Office — West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401, WILLIAM J. BERGER, ESQ., and BRADLEY J. EDWARDS, Rothstein Rosenfeldt Adler, 401 East Las Olas Boulevard, Suite 1650, Fort Lauderdale, FL 33394, JACK A. GOLDBERGER, ESQ., Atterbury, Goldberger & Weiss, P.A., 250 Australian Avenue South, Suite 1400, West Palm Beach, FL 33401, SPENCER T. KUVIN, ESQ., Leopold-Kuvin, P.A., 2925 PGA Blvd., Suite 200, Palm Beach Gardens, FL 33410, and DEANNA K. SHULLMAN, 3 EFTA00180629 400 North Ashley Drive, Suite 1100, P.O. Box 2602 (33601) Tampa, FL 33602, this 25th day of June, 2009. BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 401 (561) 842-2820 (561) 515-3148 F By: Robert D. Cri on, Jr. Florida Bar 24162 Michael J. Pike Florida Bar #617296 Counsel for Defendant Jeffrey Epstein) and Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 Fax: 561-835-8691 Counsel for Defendant Jeffrey Epstein 4 EFTA00180630 EFTA00180631 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, Petitioner, v. STATE OF FLORIDA, Respondent. / CASE NO. PALM BEACH COUNTY L.T. CASE NO. 2008 CF 009381A MOTION TO FILE UNDER SEAL Petitioner/defendant, JEFFREY EPSTEIN, moves this Court for an order allowing him to file the September 24, 2007 Non-Prosecution Agreement ("Agreement") and October 29, 2007 Addendum to the Non-Prosecution Agreement ("Addendum"), which are the subject of his contemporaneously filed emergency petition for certiorari and emergency motion to review denial of stay, under seal. 1. The Agreement and Addendum were executed by petitioner/defendant and the United States Attorney's Office in September 2007. They are attached in the sealed envelope. 2. The Agreement contains a confidentiality clause, precluding it from EFTA00180632 being disclosed to third parties or made part of any public record. Federal District Judge Marra has twice ordered the documents not disclosed to third parties. 3. Fifteenth Judicial Circuit Judge Deborah Pucillo ordered Mr. Epstein's attorney to file the documents under seal during his plea conference on June 30, 2008. 4. On June 25, 2009, Judge Colbath granted non-parties' motions to vacate the order sealing records and ordered them disclosed. 5. On June 26, 2009, Judge Colbath denied petitioner's motion for stay, and ordered the Clerk of Court to make the documents available for disclosure at noon on Thursday, July 2, 2009, unless this Court granted a stay. 6. It is necessary that this Court review the Agreement and Addendum in conjunction with these proceedings. To protect the purpose of the petition for writ of certiorari pending before this Court, petitioner asks to file the documents under seal. Accordingly, petitioner requests that this Court grant this motion and allow 2 EFTA00180633 him to file the Agreement and Addendum, which are separate from the appendix to his emergency petition and motion for review, under seal. I HEREBY CERTIFY that a copy of the foregoing has been sent by email and Federal Express this day of June, 2009, to: JUDITH STEVENSON ARCO U.S. Attorney's Office-Southern District State Attorney's Office-West Palm Beach 500 South Australian Avenue, Suite 400 401 North Dixie Highway West Palm Beach, FL 33401 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale, FL 33394 Counsel for E.W. SPENCER T. KUVIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for B.B. DEANNA K. SHULLMAN 400 North Ashley Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post HONORABLE JEFFREY COLBATH Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 ROBERT D. CRITTON of BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER of ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and 3 EFTA00180634 JANE ICREUSLER-WALSH and BARBARA J. COMPIANI of ICREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner By: Z9-0—/' (6 --N =3 —E -‘11L14-4. .,ER-WALSH orida Bar No. 272371 4 EFTA00180635 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, Respondent. CASE NO. PALM BEACH COUNTY L.T. CASE NO. 2008 CF 009381A MOTION TO USE ONE APPENDIX TO SUPPORT EMERGENCY PETITION FOR WRIT OF CERTIORARI AND EMERGENCY MOTION TO REVIEW DENIAL OF STAY Petitioner, JEFFREY EPSTEIN, moves to file one appendix in support of his contemporaneously filed emergency petition for writ of certiorari and emergency motion to review denial of stay. The documents in the appendix support both the petition and motion to review denial of stay. In order to expedite review, avoid duplication of paper and unnecessary expense, Mr. Epstein requests that this Court allow him to use the appendix in support of both the petition and motion to review denial of stay. I HEREBY CERTIFY that a copy of the foregoing has been sent by E-Mail and 1 EFTA00180636 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale, FL 33394 Counsel for E.W. SPENCER T. KUVIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for B.B. Federal Express this emu. day of June, 2009, to: JUDITH STEVENSON ARCO State Attorney's Office-West Palm Beach 401 North Dixie Highway West Palm Beach, FL 33401 DEANNA K. SHULLMAN 400 North Ashley Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post HONORABLE JEFFREY COLBATH Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and 2 EFTA00180637 JANE KREUSLER-WALSH and BARBARA J. COMPIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner By: 0-12-1-• T lo ZIE =V-WALSH rida Bar No. 272371 3 EFTA00180638 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, Petitioner, v. STATE OF FLORIDA, Respondent. / CASE NO. PALM BEACH LT. CASE NO. 2008 CF 009381A PETITIONER'S EMERGENCY MOTION TO REVIEW ORDER DENYING STAY OF DISCLOSURE OF FEDERAL NON-PROSECUTION AGREEMENT AND ADDENDUM Petitioner, JEFFREY EPSTEIN, pursuant to Florida Rule of Appellate Procedure 9.310(f), requests this Court review the order denying his Motion to Stay Disclosure of Federal Non-Prosecution Agreement and Addendum pending his contemporaneously filed petition for certiorari and grant the stay.' Mr. Epstein seeks review of the stay denial on emergency basis. The court stayed disclosure until noon on Thursday, July 2, 2009 so Mr. Epstein could seek review in this Court. Absent a stay by this Court, the documents will be disclosed and there will be no adequate remedy. Petitioner, Jeffrey Epstein is referred to by proper name. Non-party interveners, E.W., B.B. and The Post are referred to as E.W., B.B. and The Post. All emphasis is supplied unless indicated otherwise. The following symbol is used: A — Petitioner's appendix. 1 EFTA00180639 FACTUAL BACKGROUND In 2006, a Florida state grand jury indicted Jeffrey Epstein for felony solicitation of prostitution. He was also charged by information with procuring persons under 18 for prostitution. The United States Attorney's Office for the Southern District of Florida began a federal grand jury investigation into allegations arising out of the same conduct. In September 2007, the United States Attorney's Office and Mr. Epstein negotiated and signed a non-prosecution agreement (A-7:38).2 The non-prosecution agreement contains an express confidentiality provision and makes specific reference to a grand jury investigation of Mr. Epstein (A-7:38). The United States Attorney's Office agreed to defer the federal criminal action on the condition that Mr. Epstein comply with many obligations, beginning with his pleading guilty to certain state charges in the Florida criminal action (A-7:38). A breach of any condition violates the non-prosecution agreement and criminal charges will resume (A-7:39-40). On June 30, 2008, Mr. Epstein pled guilty to felony solicitation of prostitution and procuring a minor under 18 for prostitution in the Florida criminal action (A-7; A- 2 The non-prosecution agreement and addendum are separately filed with a motion to seal. 2 EFTA00180640 8). Judge Deborah Dale Pucillo, sitting for the Fifteenth Judicial Circuit, accepted the plea (A-7). During the plea conference, Judge Pucillo asked Mr. Epstein whether any promises had been made to him besides the terms of the state plea (A-7:37-38). Mr. Epstein's attorney advised the court of the "confidential [non-prosecution agreement with the United States Attorney's Office] that the parties have agreed to." (A-7:38). He informed the court that Mr. Epstein's failure to comply with the terms of the state plea would violate the non-prosecution agreement (A-7:39-40). Judge Pucillo then instructed Mr. Epstein's attorney that she wanted "a sealed copy of that filed in this case." (A-7:40). When Mr. Epstein's attorney tried to comply and file the non-prosecution agreement with the court, the clerk advised him an order was necessary. On July 2, 2008, the court entered an "Agreed Order Sealing Document in Court File" (A-9). An addendum to the non-prosecution agreement was filed under seal on August 25, 2008. On July 7, 2008, Jane Doe 1 and Jane Doe 2 filed an independent action in the federal court to compel production of the non-prosecution agreement (A-1). Mr. Epstein was not a party to the proceeding, but the United States Attorney's Office 3 EFTA00180641 opposed disclosure (A-2). On August 16, 2008, Judge Marra of the Southern District ordered the United States Attorney's Office to produce the non-prosecution agreement to the Does' attorneys and to any other victims and their counsel, provided they not disclose the terms to anyone else (A-2). As a result of this order, all victims, including those with civil suits against Mr. Epstein, have access to the non-prosecution agreement and addendum. They just cannot share it with others. In September 2008, Jane Doe 1 and Jane Doe 2 filed motions in the federal action to unseal the non-prosecution agreement and addendum (A-3). The United States Attorney's Office opposed disclosure noting its confidentiality provision, the movant's right to access the agreement, and Judge Marra's protective order to which the movants voiced no objection (A-4). On February 12, 2009,3 Judge Marra denied the motion, stating in pertinent part: Petitioners' mere desire to discuss the Agreement with third parties is insufficient, in and of itself, to warrant the granting of such relief. If and when Petitioners have a specific tangible need to be relieved of the restrictions, they should file an appropriate motion. If a specific tangible need arises in a civil case Petitioners or other alleged victims are pursuing against Epstein, relief should be sought in that case, with notice to the United States, the other party to the Agreement. (A-6). 3 The order is mistakenly dated February 12, 2008 (A-6). 4 EFTA00180642 Rather than seeking relief from Judge Marra in federal court, non-party E.W., a victim of Mr. Epstein, filed a motion in the state criminal action on May 12, 2009, seeking to intervene and unseal the non-prosecution agreement and addendum pursuant to Florida Rule of Judicial Administration 2.420(d)(5) (A-10). E.W. alleged that the proper procedures had not been followed in sealing the documents (A-10). E.W. claimed these documents are relevant to her civil action against Mr. Epstein; that she, as a member of the public, has a right to have them unsealed; and that continued sealing violates public policy (A-10). On June 1, 2009, Palm Beach Newspapers d/b/a The Palm Beach Post ("The Post") moved in the state criminal action to intervene and access the non-prosecution agreement and addendum (A-11). The Post alleged that the procedures for sealing had not been followed and that "good cause exists for unsealing the documents because of their public significance." (A-11:3). Fifteenth Judicial Circuit Judge Jeffrey Colbath heard E.W.'s and The Post's motions in the state criminal action on June 10, 2009 (A-13). The court granted both motions to intervene, but deferred ruling on the motions to unseal pending a later hearing (A-13). EFTA00180643 The next day, June 11, 2009, Mr. Epstein filed a Motion to Make Court Records Confidential (A-13). Mr. Epstein alleged that the documents should remain confidential to prevent a serious imminent threat to the fair, impartial, and orderly administration of justice; to protect a compelling government interest; to avoid substantial injury to innocent third parties; and to avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right, not generally inherent in the specific type of proceeding sought to be closed (A-13). Also on June 11, non-party B.B. filed motions to intervene and for an order unsealing the records, alleging grounds similar to non-parties E.W. and The Palm Beach Post (A-12). Judge Colbath heard E.W.'s, The Post's, and B.B.'s motions to unseal and Mr. Epstein's motion for confidentiality on June 25, 2009 (A-16). The court granted E.W.'s, The Post's, and B.B.'s motions and denied Mr. Eptsein's (A-16:2). The court concluded: At the time the State court took these matters under seal, the proper procedure for sealing such documents had not been followed. Neither the State of Florida nor the U.S. Government nor Mr. Epstein have [sic] presented sufficient evidence to warrant the sealing of documents currently held by the Court. (A-16:2; A-18:43). The court ruled that "[t]his Order is in no way to be interpreted as 6 EFTA00180644 permission to not comply with U.S. District Court Kenneth Marra's previous Orders." (A-16:3). Subsequent to this oral ruling, Mr. Epstein provided the court with a Motion to Stay (A-14). The court stayed disclosure until it could hear Mr. Epstein's motion to stay, scheduled for the next day (A-16:3). The court heard Mr. Epstein's stay motion on June 26, 2009 (A-19). Mr. Epstein alleged that he will be irreparably harmed by disclosure of the non-prosecution agreement and addendum (A-14). No harm will be done if the documents remain under seal pending review by this Court (A-14). The court denied the motion, but stayed disclosure until noon on Thursday, July 2, so Mr. Epstein could seek emergency review of the denial in this Court (A-17). ARGUMENT Whether to grant a stay is discretionary with the trial court. See Pabian v. Pabian, 469 So. 2d 189, 191 (Fla. 4th DCA 1985). Factors courts consider in deciding whether to grant a stay pending appellate proceedings include the likelihood of success on the merits, the likelihood of harm if not stay is granted, and the remedial quality of any such harm. See Perez v. Perez, 769 So. 2d 389, 391 n.4 (Fla. 3d DCA 1999); see also State ex rel. Price v. McCord, 380 So. 2d 1037, 1038 n.3 (Fla. 1980). The trial court agreed that Mr. Epstein had established irreparable harm (A-17:16), denied a 7 EFTA00180645 stay. The trial court abused its discretion by denying a stay. As set forth in the contemporaneously filed petition for certiorari, Mr. Epstein will likely succeed on the merits. The trial court departed from the essential requirements of law in granting the motions to unseal the confidential federal non-prosecution agreement and addendum between the United States Attorney's Office and Mr. Epstein. These documents are subject to confidentiality provisions, which the federal court recognized and enforced when it permitted disclosure to the attorneys for Jane Doe 1 and Jane Doe 2 and to any other victims and their counsel, provided they not disclose the terms to anyone else. Disclosure violates a condition of the agreement, thereby vitiating the agreement between Mr. Epstein and the United States Attorney. Disclosure also violates Judge Marra's two orders in the federal district court, denying disclosure to the parties. Judge Colbath paid lip service to this principle in stating that his "Order is in no way to be interpreted as permission to not comply with U.S. District Court Kenneth Marra's previous Orders." (A-16:3). But there is no way disclosure does not inherently violate Judge Marra's orders. The principle of supremacy required that the state court defer to the federal court 8 EFTA00180646 on this issue. U.S. Const. Art. I § 8. These documents reference federal grand jury proceedings, which are protected under Federal Rule of Criminal Procedure 6(e)(2)--an attorney for the government "must not disclose a matter occurring before the grand jury." As a consequence of the confidentiality provisions of the non-prosecution agreement, information that disclosed the existence and the subject matter of a federal grand jury proceeding which itself is protected by Federal Rule of Criminal Procedure 6(e) remains non-public, thus effectuating the privacy concerns addressed by the United States Supreme Court in Douglas and other cases. See e.g. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228-30 (1979). Under Rule 6(e), only a federal court can, absent findings, order the unsealing of federal grand jury proceedings. See Fed. R. Crim. P. 6(e)(3)(F), (G). Judge Colbath did not address this principle. Nor did Judge Colbath address the principle of comity, which required that the state court defer to the federal court, which has twice denied disclosure to third parties, on this issue. The court erred in concluding that the non-prosecution and agreement were not properly sealed. The non-parties filed their motions to unseal pursuant to Florida Rule of Judicial Administration 2.420(d) (A-10, A-11, A-12). They alleged that Judge Pucillo failed to properly seal the documents under the procedure set forth in that rule (Id.). By its terms, however, the procedures for sealing in Rule 2.420(d) (titled, "Request to Make Circuit and County Court Records in Non-Criminal Cases 9 EFTA00180647 Confidential") do not apply to criminal cases. See Fla. R. Jud. Admin. 2.420, 2007 Court Commentary ("New subdivision (d) applies to motions that seek to make court records in non-criminal cases confidential in accordance with subdivision (c)(9)."); see also In re Amendments to Fla. R. Jud. Admin. 2.420--Sealing of Court Records & Dockets, 954 So. 2d 16, 17 & 23 (Fla. 2007) (declining to adopt specific procedure regarding the sealing of court records in criminal cases and referring the matter to rules committees for further study). Under the version of rule 2.420 in effect when the documents were sealed, there is no procedure for criminal proceedings. Even under the prior version of rule 2.420, Judge Pucillo was not required to give prior notice of her intent to seal documents during the plea hearing. Committee Notes on the 1995 amendments discussing a prior version of Rule 2.420(c)(9)(D), make clear that advance notice is not always required: Unlike the closure of court proceedings, which has been held to require notice and hearing prior to closure, see Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), the closure of court records has not required prior notice. Requiring prior notice of closure of a court record may be impractical and burdensome in emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial proceeding. The local administrative rule the non-parties cite, 15th Judicial Circuit 10 EFTA00180648 Administrative Order 2.303, is not applicable either. This Administrative Order addresses the procedures for sealing criminal and non-criminal court records, but was not adopted until September 29, 2008--months after Judge Pucillo sua sponte ordered the non-prosecution agreement and its addendum filed and sealed. The Administrative Order in effect when Judge Pucillo sealed these documents was 2.032-10/06. As explained above, the procedures designated therein would not apply since Judge Pucillo filed and sealed the documents sua sponte, not by motion. To the extent that the Administrative Order conflicts with the version of rule 2.420 then in effect, the rule prevails. Judge Pucillo was not required to follow Administrative Order 2.032 when she sealed the documents in June 2008. Assuming compliance with procedures for confidentiality was required, Mr. Epstein met them. At all times, the rules of judicial administration provided that court records "shall be confidential" if a court has determined that confidentiality is required. Fla. R. Jud. Admin. 2.420(c)(9). Rule 2.420(c)(9) provides: (c) Exemptions. The following records of the judicial branch shall be confidential: • • • • (9) Any court record determined to be confidential in case decision or court rule on the grounds that (A) confidentiality is required to (i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (ii) protect trade secrets; 11 EFTA00180649 (iii) protect a compelling governmental interest; (iv) obtain evidence to determine legal issues in a case; (I avoid substantial injury to innocent third parties; (vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed; (vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law; (B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (A); and (C) no less restrictive measures are available to protect the interests set forth in subdivision (A). Fla. R. Jud. Admin. 2.420(c)(9). Thus, courts are required to seal court records upon a finding that closure is need to "prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice," to "avoid substantial injury to innocent third parties" or to "avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed." Fla. R. Jud. Admin. 2.420(c)(9)(i), (v), (vi). Mr. Epstein's Motion to Make Court Records Confidential satisfied these requirements; thus, the court erred in denying it. Mr. Epstein alleged three separate grounds for confidentiality. He first argued that confidentiality is necessary to protect 12 EFTA00180650 a compelling government interest. He satisfied this prong since the United States Attorney's Office has a compelling interest in having the confidentiality provision of its contract with Mr. Epstein honored. Judge Marra already balanced that interest against arguments for disclosure and struck a balance by requiring disclosure to plaintiffs and their lawyers, but not to third parties. Secondly, Mr. Epstein contended that maintaining confidentiality will avoid injury to innocent third parties, i.e., the other persons the United States Attorney's Office agreed not to prosecute who will be harmed if the documents are unsealed. Thirdly, Mr. Epstein demonstrated that confidentiality is necessary to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed. Disclosure of these documents is not generally inherent in a state court plea hearing and will violate Mr. Epstein's common law right to confidentiality. Granting a stay would vindicate the values and purposes of grand jury secrecy which will be implicated, if a stay is denied, by the public disclosure of a confidential agreement that references matters related to a federal grand jury investigation. There is no prejudice to non-parties/interveners E.W., B.B. and The Post, if disclosure is stayed pending the outcome of Mr. Epstein's emergency petition for certiorari. Mr. Epstein, on the other hand, will suffer irreparable harm once the documents are produced--a fact 13 EFTA00180651 the trial court recognized (A-19:16). CONCLUSION This Court should grant review and order the trial court to stay the order unsealing the non-prosecution agreement and addendum pending certiorari review. CERTIFICATION OF EXISTENCE OF EMERGENCY Undersigned counsel certifies that the subject of this motion constitutes an emergency. The trial court's order at noon on July 2, 2009, provides that the confidential federal non-prosecution agreement and addendum will be disclosed. Once these documents are disclosed, irreparable harm will result. I HEREBY CERTIFY that a copy of the foregoing has been sent by E-Mail and Federal Express this 50-x3, day of June, 2009, to: U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale, FL 33394 Counsel for E.W. JUDITH STEVENSON ARCO State Attorney's Office-West Palm Beach 401 North Dixie Highway West Palm Beach, FL 33401 DEANNA K. SHULLMAN 400 North Ashley Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post 14 EFTA00180652 SPENCER T. KUVIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for B.B. HONORABLE JEFFREY COLBATH Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 ROBERT D. CRITTON BURMAN, CRITTON, LU 111BR & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and JANE KREUSLER-WALSH and BARBARA J. COMPIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner By: .151 rlori NE jIk-3lt /ALSH da Bar No. 272371 15 EFTA00180653 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, Petitioner, v. STATE OF FLORIDA, Respondent. CASE NO. PALM BEACH LT. CASE NO. 2008 CF 009381A EMERGENCY PETITION FOR WRIT OF CERTIORARI Petitioner, JEFFREY EPSTEIN, seeks a writ of certiorari pursuant to Florida Rule of Appellate Procedure 9.100(c)(1), to review an order compelling disclosure of a confidential federal non-prosecution agreement and addendum, pursuant to motions to unseal, filed by non-parties, E.W., B.B. and Palm Beach Newspapers cl/b/a The Palm Beach Post ("the Post")) The confidential federal non-prosecution agreement and addendum between the United States Attorney's Office and Mr. Epstein were filed under seal in state court at the express directive of the judge who heard Mr. Epstein's guilty plea--"I want a sealed copy of that filed in this case"--and not by Petitioner, Jeffrey Epstein is referred to by proper name. Non-party interveners, E.W., B.B. and The Post are referred to as E.W., B.B. and The Post. All emphasis is supplied unless indicated otherwise. The following symbol is used: A — Petitioner's appendix. EFTA00180654 motion of any party (A-7:40). Federal Court Judge Marra has twice denied public access to these documents. Mr. Epstein seeks certiorari review on an emergency basis.2 The court stayed disclosure until noon on Thursday, July 2, 2009. Once the documents are produced, there will be no adequate remedy. L JURISDICTION Mr. Epstein seeks to invoke the certiorari jurisdiction of this Court pursuant to Florida Rules of Appellate Procedure 9.030(bX2XA) and 9.100. Certiorari review is appropriate where, as here, an order unsealing a court record departs from the essential requirements of law and causes material injury that cannot be remedied on appeal after final judgment. See Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). This Court should exercise its certiorari jurisdiction to quash the order unsealing the non-prosecution agreement and addendum. Production of these documents will cause irreparable harm ("cat out of the bag") to Mr. Epstein. The order departs from the essential requirements of law because 2 Mr. Epstein has contemporaneously filed an emergency motion to review denial of stay. 2 EFTA00180655 the court failed to recognize principles of supremacy and comity and failed to apply the correct law as to sealing these records. Alternatively, Mr. Epstein appeals the order under Florida Rule of Appellate Procedure 9.140(b)(IXD) as an order entered after a finding of guilt in a criminal case. See Fla. R. App. P. 9.040(c) ("If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought . . . ."). II. STATEMENT OF FACTS In 2006, a Florida state grand jury indicted Jeffrey Epstein for felony solicitation of prostitution. He was also charged by information with procuring persons under 18 for prostitution. The United States Attorney's Office for the Southern District of Florida began a federal grand jury investigation into allegations arising out of the same conduct. In September 2007, the United States Attorney's Office and Mr. Epstein executed a non-prosecution agreement (A-7:38).3 The non- prosecution agreement contains an express confidentiality provision (A- 3 The non-prosecution agreement and addendum are separately filed with a motion to seal. 3 EFTA00180656 7:38). The United States Attorney's Office agreed to defer the federal criminal action on the condition that Mr. Epstein comply with many obligations, beginning with his pleading guilty to certain state charges in the Florida criminal action (A-7:38). A breach of any condition violates the non-prosecution agreement and criminal charges will resume (A-7:39-40). On June 30, 2008, Mr. Epstein pled guilty to felony solicitation of prostitution and procuring a minor under 18 for prostitution in the Florida criminal action (A-7; A-8). Judge Deborah Dale Pucillo, sitting for the Fifteenth Judicial Circuit, accepted the plea (A-7). During the plea conference, Judge Pucillo asked Mr. Epstein whether any promises had been made to him besides the terms of the state plea (A- 7:37-38). Mr. Epstein's attorney advised the court of the "confidential [non- prosecution agreement with the United States Attorney's Office] that the parties have agreed to." (A-7:38). He informed the court that Mr. Epstein's failure to comply with the terms of the state plea would violate the non- prosecution agreement (A-7:39-40). Judge Pucillo then instructed Mr. Epstein's attorney that she wanted 4 EFTA00180657 "a sealed copy of that filed in this case." (A-7:40). When Mr. Epstein's attorney tried to comply, and file the non-prosecution agreement with the court, the clerk advised him an order was necessary. On July 2, 2008, the court entered an "Agreed Order Sealing Document in Court File" (A-9). An addendum to the non-prosecution agreement was filed under seal on August 25, 2008. On July 7, 2008, Jane Doe 1 and Jane Doe 2 filed an independent action in federal court to compel production of the non-prosecution agreement (A-1). Mr. Epstein was not a party to the proceeding, but the United States Attorney's Office opposed disclosure (A-2). On August 16, 2008, Judge Marra of the Southern District ordered the United States Attorney's Office to produce the non-prosecution agreement to the Does' attorneys and to any other victims and their counsel, provided they not disclose the terms to anyone else (A-2). As a result of this order, all victims, including those with civil suits against Mr. Epstein, have access to the non- prosecution agreement and addendum. They just cannot share it with others. In September 2008, Jane Doe 1 and Jane Doe 2 filed motions in the federal criminal action to unseal the non-prosecution agreement (A-3). The 5 EFTA00180658 United States Attorney's Office opposed disclosure noting its confidentiality provision, the movant's right to access the agreement, and Judge Marra's protective order to which the movants voiced no objection (A-4). On February 12, 2009,4 Judge Marra denied the motion, finding in pertinent part: Petitioners' mere desire to discuss the Agreement with third parties is insufficient, in and of itself, to warrant the granting of such relief. If and when Petitioners have a specific tangible need to be relieved of the restrictions, they should file an appropriate motion. If a specific tangible need arises in a civil case Petitioners or other alleged victims are pursuing against Epstein, relief should be sought in that case, with notice to the United States, the other party to the Agreement. (A-6). Rather than seeking relief from Judge Marra in federal court, non- party E.W., a victim of Mr. Epstein, filed a motion in the state criminal action on May 12, 2009, seeking to intervene and unseal the non-prosecution agreement and addendum pursuant to Florida Rule of Judicial Administration 2.420(d)(5) (A-10). E.W. alleged that the proper procedures had not been followed in sealing the documents (A-I0). E.W. claimed these documents are relevant to her civil action against Mr. Epstein and that she, 4 The order is mistakenly dated February 12, 2008 (A-6). 6 EFTA00180659 as a member of the public, has a right to have them unsealed; and that continued sealing violates public policy (A-10). On June 1, 2009, Palm Beach Newspapers d/b/a The Palm Beach Post ("The Post") also moved in the state criminal action to intervene and access the agreement and addendum (A-II). The Post alleged the procedures for sealing had not been followed and that "good cause exists for unsealing the documents because of their public significance." (A-11:3). Fifteenth Judicial Circuit Judge Jeffrey Colbath heard E.W.'s and The Post's motions in the state criminal action on June 10, 2009 (A-13). The court granted both motions to intervene, but deferred ruling on the motions to unseal pending a later hearing (A-13). The next day, Mr. Epstein filed a Motion to Make Court Records Confidential (A-13). Mr. Epstein alleged that the documents should remain confidential to prevent a serious imminent threat to the fair, impartial, and orderly administration of justice; to protect a compelling government interest; to avoid substantial injury to innocent third parties; and to avoid substantial injury to a party by disclosure of matters protected by a common 7 EFTA00180660 law and privacy right, not generally inherent in the specific type of proceeding sought to be closed (A-13). Also on June 11, non-party B.B. filed motions to intervene and for an order unsealing the records, alleging grounds similar to non-parties E.W. and The Palm Beach Post (A-I2). Judge Colbath heard E.W.'s, The Post's, and B.B.'s motions to unseal, and Mr. Epstein's motion for confidentiality, on June 25, 2009 (A- 16). The court granted E.W.'s, The Post's, and B.B.'s motions and denied Mr. Eptsein's (A-16:2). The court concluded: At the time the state court took these matters under seal, the proper procedure for sealing such documents had not been followed . . . [and that] [n]either the State of Florida nor the U.S. Government nor Mr. Epstein have [sic] presented sufficient evidence to warrant the sealing of documents currently held by the court. (A-16:2; A-18:43). The court ruled that "[t]his Order is in no way to be interpreted as permission to not comply with U.S. District Court Kenneth Marra's previous Orders." (A-16:3). Subsequent to this oral ruling, Mr. Epstein provided the court with a Motion for Stay (A-14). The court stayed disclosure until it could hear Mr. Epstein's motion to stay, scheduled for the 8 EFTA00180661 next day (A-16:3). The court heard Mr. Epstein's stay motion on June 26, 2009 (A-19). Mr. Epstein alleged that he will be irreparably harmed by disclosure of the non-prosecution agreement and addendum (A-14). No harm will be done if the documents remain under seal pending review by this Court (A-14). The court denied the motion, but stayed disclosure until noon on Thursday, July 2, 2009, so Mr. Epstein could seek review of the denial in this Court (A-17). Mr. Epstein has filed an emergency motion to review denial of stay in this Court, contemporaneously with this motion. III. NATURE OF RELIEF SOUGHT Mr. Epstein seeks to quash the June 25, 2009 order granting non- parties' motions to unseal the confidential non-prosecution agreement and addendum between Mr. Epstein and the United States Attorney's Office. IV. ARGUMENT The trial court departed from the essential requirements of law in granting the motions to unseal the confidential federal non-prosecution agreement and addendum between the United States Attorney's Office and 9 EFTA00180662 Mr. Epstein. These documents are subject to confidentiality provisions, which the federal court recognized and enforced when it permitted disclosure to the attorneys for Jane Doe 1 and Jane Doe 2, and to any other victims and their counsel, provided they not disclose the terms to anyone else. Disclosure violates a condition of the agreement, thereby vitiating the agreement between Mr. Epstein and the United States Attorney. Disclosure also violates Judge Marra's two orders in the federal district court, denying disclosure to the parties. Judge Colbath paid lip service to this principle in stating that his "Order is in no way to be interpreted as permission to not comply with U.S. District Court Kenneth Marra's previous Orders." (A- 16:3). But there is no way disclosure does not inherently violate Judge Marra's orders. The principle of supremacy required that the state court defer to the federal court on this issue. U.S. Const. Art. I § 8. These documents reference federal grand jury proceedings, which are protected under Federal Rule of Criminal Procedure 6(e)(2)--an attorney for the government "must not disclose a matter occurring before the grand jury." As a consequence of the confidentiality provisions of the non-prosecution agreement, information that disclosed the existence and the subject matter of a federal grand jury 10 EFTA00180663 proceeding which itself is protected by Federal Rule of Criminal Procedure 6(e) remains non-public, thus effectuating the privacy concerns addressed by the United States Supreme Court in Douglas and other cases. See e.g. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 228-30 (1979). Under Rule 6(e), only a federal court can, absent findings, order the unsealing of federal grand jury proceedings. See Fed. R. Crim. P. 6(e)(3)(F), (G). Judge Colbath did not address this principle. Nor did Judge Colbath address the principle of comity, which required that the state court defer to the federal court, which has twice denied disclosure to third parties, on this issue. The court erred in concluding that the non-prosecution and agreement were not properly sealed. The non-parties filed their motions to unseal pursuant to Florida Rule of Judicial Administration 2.420(d) (A-10, A-11, A-12). They alleged that Judge Pucillo failed to properly seal the documents under the procedure set forth in that rule (Id.). By its terms, however, the procedures for sealing in Rule 2.420(d) (titled, "Request to Make Circuit and County Court Records in Non-Criminal Cases Confidential") do not apply to criminal cases. See Fla. R. Jud. Admin. 2.420, 2007 Court Commentary ("New subdivision (d) applies to motions that seek to make court records in 11 EFTA00180664 non-criminal cases confidential in accordance with subdivision (c)(9)."); see also In re Amendments to Fla. R. Jud. Admin. 2.420--Sealing of Court Records & Dockets, 954 So. 2d 16, 17 & 23 (Fla. 2007) (declining to adopt specific procedure regarding the sealing of court records in criminal cases and referring the matter to rules committees for further study). Under the version of rule 2.420 in effect when the documents were sealed, there is no procedure for criminal proceedings. Even under the prior version of rule 2.420, Judge Pucillo was not required to give prior notice of her intent to seal documents during the plea hearing. Committee Notes on the 1995 amendments discussing a prior version of Rule 2.420(c)(9XD), make clear that advance notice is not always required: Unlike the closure of court proceedings, which has been held to require notice and hearing prior to closure, see Miami Herald Publishing Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), the closure of court records has not required prior notice. Requiring prior notice of closure of a court record may be impractical and burdensome in emergency circumstances or when closure of a court record requiring confidentiality is requested during a judicial proceeding. The local administrative rule the non-parties cite, 15th Judicial Circuit 12 EFTA00180665 Administrative Order 2.303, is not applicable either. This Administrative Order addresses the procedures for sealing criminal and non-criminal court records, but was not adopted until September 29, 2008--months after Judge Pucillo sua sponte ordered the non-prosecution agreement and its addendum filed and sealed. The Administrative Order in effect when Judge Pucillo sealed these documents was 2.032-10/06. As explained above, the procedures designated therein would not apply since Judge Pucillo filed and sealed the documents sua sponte, not by motion. To the extent that the Administrative Order conflicts with the version of rule 2.420 then in effect, the rule prevails. Judge Pucillo was not required to follow Administrative Order 2.032 when she sealed the documents in June 2008. Assuming compliance with procedures for confidentiality was required, Mr. Epstein met them. At all times, the rules of judicial administration provided that court records "shall be confidential" if a court has determined that confidentiality is required. Fla. R. Jud. Admin. 2.420(c)(9). Rule 2.420(c)(9) provides: (c) Exemptions. The following records of the judicial branch shall be confidential: • • • (9) Any court record determined to be confidential in case decision or court rule on the grounds that 13 EFTA00180666 (A) confidentiality is required to (i) prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice; (ii) protect trade secrets; (iii) protect a compelling governmental interest; (iv) obtain evidence to determine legal issues in a case; (v) avoid substantial injury to innocent third parties; (vi) avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed; (vii) comply with established public policy set forth in the Florida or United States Constitution or statutes or Florida rules or case law; (B) the degree, duration, and manner of confidentiality ordered by the court shall be no broader than necessary to protect the interests set forth in subdivision (A); and (C) no less restrictive measures are available to protect the interests set forth in subdivision (A). Fla. R. Jud. Admin. 2.420(c)(9). Thus, courts are required to seal court records upon a finding that closure is need to "prevent a serious and imminent threat to the fair, impartial, and orderly administration of justice," to "avoid substantial injury to innocent third parties" or to "avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding 14 EFTA00180667 sought to be closed." Fla. R. Jud. Admin. 2.420(c)(9)(i), (v), (vi). Mr. Epstein's Motion to Make Court Records Confidential satisfied these requirements; thus, the court erred in denying it. Mr. Epstein alleged three separate grounds for confidentiality. He first argued that confidentiality is necessary to protect a compelling government interest. He satisfied this prong since the United States Attorney's Office has a compelling interest in having the confidentiality provision of its contract with Mr. Epstein honored. Judge Marra already balanced that interest against arguments for disclosure and struck a balance by requiring disclosure to plaintiffs and their lawyers, but not to third parties. Secondly, Mr. Epstein contended that maintaining confidentiality will avoid injury to innocent third parties, i.e., the other persons the United States Attorney's Office agreed not to prosecute who will be harmed if the documents are unsealed. Thirdly, Mr. Epstein demonstrated that confidentiality is necessary to avoid substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed. Disclosure of these documents is not generally inherent in a state court plea hearing and will violate Mr. Epstein's common law right to confidentiality. 15 EFTA00180668 There is no prejudice to non-parties/interveners E.W., B.B. and The Post, if disclosure is stayed pending the outcome of Mr. Epstein's emergency petition for certiorari. Mr. Epstein, on the other hand, will suffer irreparable harm once the documents are produced--a fact the trial court recognized (A-19:16). CONCLUSION This Court should grant certiorari and quash the June 25, 2009 order granting non-parties' motions to unseal the confidential non-prosecution agreement and addendum between Mr. Epstein and the United States Attorney's Office. CERTIFICATION OF EXISTENCE OF EMERGENCY Undersigned counsel certifies that the subject of this petition constitutes an emergency. The trial court's order at noon on July 2, 2009, provides that the confidential federal non-prosecution agreement and addendum will be disclosed. Once these documents are disclosed, irreparable harm will result. 16 EFTA00180669 I HEREBY CERTIFY that a copy of the foregoing has been sent by E-Mail and Federal Express this Sara-day of June, 2009, to: U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale, FL 33394 Counsel for E.W. SPENCER T. KUVIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for B.B. JUDITH STEVENSON ARCO State Attorney's Office-West Palm Beach 401 North Dixie Highway West Palm Beach, FL 33401 DEANNA K. SHULLMAN 400 North Ashley Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post HONORABLE JEFFREY COLBATH Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 an 17 EFTA00180670 JANE 1CREUSLER-WALSH and BARBARA J. COMPIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 etitioner By- 944 ANE KM' USLER-WALSH Florida Bar No. 272371 18 EFTA00180671 06-26-'09 13:39 FROM-THOMAS & LOCICERO 8139843070 T-059 P001/005 F-889 THOMAS LOCICERO BRALOW 400 N. Ashley Drive,Suite I100.Tampa, FL 33602 813.984.3060 (Phone)e813.984-3070 (Fax) Toll Free: 866-395-7100 facsimile transmittal To: Marilyn, Judicial Assistant to Judge FAX Colbath R. Alexander Acosta, Esq., USAO Barbara Burns, Esq., ASAO Jack Alan Goldberger, Esq. Bradley J. Edwards, Esq. William J. Berger, Esq. Robert D. Critton, Esq. Spencer T. Kuvin, Esq. From: Deanna K. Shullman, Esq, Re: State I. J. Epstein Date: 06/04/2009 Pages: 5 Urgent K For review K Please see attached proposed Order. Please comment K j Please reply K J Please recycle K 1 CONFIDENTIALITY STATEMENT This electronic message transmission contains Information from the law firm of Thomas. LoCicero & Bralow PL and Is confidential or privileged. The information is intended to be for the use of the individual or entity named above. If you art not the Intended recipient, be aware that any disclosure, copying, disMbudon or use of the contents of this Information Is prohibited. If you have received this electronic transmission in error, please nodfy us by telephone (813) 924.3060 immediately. Thank you for your cooperation IRS Circular 230 Disclosure. To the extent this conespondernt contains federal tax advice, such advice was not intended to be used, and cannot be used by any uutpayer, for the purpose of (I) avoiding penalties under the Internal Revenue Code or (i) promoting, marketing, or recommending to another party any transaction or matter addressed herein. If you would like us to prepare written tax advice designed to provide penalty protectim, please contact us and we will be happy to discuss the miner with you b more detail confidential EFTA00180672 06-26-'09 13:39 FROM-THOMAS & L0GIGER0 8139843070 T-059 P002/005 F-889 Tampa doe N. Ashley Dr., Sea 1100, Tamps, FL 33602 P.O. Box 2602. Temp, Ft. 33601.2602 ph. 813.984.3060 fax 813.984.3070 toll free 866495.7100 & BRALOW June 26, 2009 VIA FASCIMILE The Honorable Jeffrey Colbath Fifteenth Judicial Circuit-Palm Beach Palm Beach County Courthouse Main Judicial Complex 205 N. Dixie Highway, Room 11F West Palm Beach, FL 33401 Re: State of Florida v. Jeffrey Epstein Dear Judge Colbath: Ft. Lauderdale 101 N.E. Third Ave., Ste. 1600 Ft. Lauderdale, FL 33301 ph 954-332-3619 lax 877-987-2244 toll free 866-967-2009 New York Oily 220 E. 42nd St., 10th Root WVACII0hWiiren COM Deanna K. Shullman Reply To Tampa This law firm represents the Palm Beach Post in the above matter. I have prepared a proposed Order, which I believe accurately reflects your ruling at the hearing on June 26, 2009 on Defendant Jeffrey Epstein's Motion to Stay Disclosure of the Non-Prosecution Agreement and Addendum Pending Review. By copy of this letter, I am providing all counsel of record a copy of the proposed Order. If the attached Order meets with Your Honor's approval, please enter the same. If you would like to have an electronic copy of this proposed order, please have your Judicial Assistant call my office to make arrangements for us to send you the order via email. Sincerely, THOMAS, LOCICERO & BRALOW PL taw/v.-Am.. K Shatina, Deanna K. Shullman EFTA00180673 06-26-'09 13:40 FROM-THOMAS & L0CICER0 8139843070 T-059 P003/005 F-889 .Hon. J: Colbath 06/26/09 Page 2 of 2 DKS/kb Enclosures cc: U.S. Attorney's Office (via facsimile) State Attorney's Office (via facsimile) Jack Alan Goldberger, Esq. (via facsimile) Bradley J. Edwards, Esq. (via facsimile) Deanna K. Shullman, Esq. (via facsimile) Spencer T. Kuvin, Esq. (via facsimile) EFTA00180674 06-26-'09 13:41 FROM-THOMAS & L0CICER0 8139843070 T-059 P004/005 F-889 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION STATE OF FLORIDA vs. JEFFREY EPSTEIN Case Nos.: 2006-CF9454-AXX & 2008-9381CF-A3CX ORDER This matter came before the Court on Defendant Jeffrey Epstein's Motion to Stay Disclosure of the Non-Prosecution Agreement and Addendum Pending Review and upon further consideration of this Court's June 26, 2009 Order unsealing certain records in this case. A hearing was conducted on these matters on June 26, 2009. On June 26, 2009, this Court entered an order unsealing the non-prosecution agreement and an addendum on file in this case. Having inspected the documents, this Court finds that they do not name any victims and do not contain any material subject to confidentiality pursuant to Federal Rule of Criminal Procedure 6. Thus, the Court declines to make any redactions to the records before releasing them to the public. The Court further finds that Defendant has not demonstrated that a stay pending appeal is warranted. Defendant has not shown any irreparable harm or likelihood of success on the merits on appeal. These documents were not properly closed in the first instance, no present basis for closure exists, and good cause supports disclosure given the public interest in these proceedings and the lack of compelling interest in closure. Accordingly, it is ordered and adjudged as follows: 1. Effective at noon on July 2, 2009, the non-prosecution agreement (docketed July 2, 2008) and addendum (docketed August 25, 2008) are unsealed; EFTA00180675 06-26-'09 13:42 FROM-THOMAS & LOCICERO 8139843070 T-059 P005/005 F-889 2. Defendant's Motion for Stay pending appellate review is DENIED; 3. The Clerk of Court is directed to release the documents to the public at noon on Thursday, July 2, 2009. Done and ordered this day of June, 2009 in Palm Beach County, West Palm Beach, Florida. Hon. Jeffrey Colbath CIRCUIT JUDGE cc: U.S. Attorney's Office State Attorney's Office Jack Alan Goldberger, Esq. Bradley J. Edwards, Esq. Deanna K. ShulIman, Esq. Spencer T. Kuvin, Esq. 2 EFTA00180676 Document Tab Proceedings in Southern District Court Victim's (Doe) Petition for Enforcement of Crime Victim's Right Act, 18 U.S.C. Section 3771 Judge Marra's Order to Compel Production and Protective Order (8/21/08) Victims' (Doe #1 and Doe #2) Motion to Unseal Non- Prosecution Agreement (9/25/08) A-1 A-2 A-3 Respondent's (U.S. Attorney's Office) Opposition to Victims' Motion to Unseal Non-Prosecution Agreement (10/8/08) A-4 Victims' (Doe #1 and Doe #2) Reply to Respondent's A-5 Opposition to Victims' Motion to Unseal Non-Prosecution Agreement (10/16/08) Judge Marra's Order Denying Petitioners' (Doe #1 and Doe #2). Motion to Unseal Non-Prosecution Agreement (2/12/08 [sic should be 2/12/09]) Proceedings in 15th Judicial Circuit Transcript of Epstein's Plea Conference (6/30/08) Epstein's Plea (6/30/08) Agreed Order Sealing Document in Court File (7/2/08) NonParty E.W.'s Motion to Vacate Order Sealing Records And Unseal Records (5/12/09) Palm Beach Post's Motion to Intervene and Petition for Access (6/1/09) A-6 A-7 A-8 A-9 A-10 A-11 Applicant, B.B.'s Motion to Intervene and Supporting A-12 Memorandum of Law (6/11/09) EFTA00180677 Document Tab Epstein's Motion to Make Court Records Confidential (6/11/09) A-I3 Epstein's Motion to Stay Disclosure of the Non-Prosecution A- 14 Agreement and Addendum Pending Review (6/25/09) Intervener's [B.B.] Response to Motion to Stay and Supporting Memorandum of Law (6/26/09) A- 1 5 Order of Judge Jeffrey J. Colbath granting motions to unseal (6/25/09) A-16 Order of Judge Jeffrey J. Colbath denying motion to stay (6/26/09) A-17 Transcript on non-parties' motions to unseal and Epstein's motion for confidentiality (6/25/09) A-18 Transcript on Epstein's motion to stay (6/26/09) A- 19 EFTA00180678 ... .. .i... LEGAL RECYCLII) PAPER TO REORDER CALL 954-8464399 EFTA00180679 Case 9:08-cv-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA 08-80736-Civ-MARRA/JOHNSON CASE NO.: IN RE: JANE DOE, Petitioner. Fimmy1 (Rio D.C. ELECTRONIC JULY 7, 2008 savcila tARIm011t With 01ST. CT. ".A. • MIAMI Sters enc y VICTIM'S PETITION FOR ENFORCEMENT OF CRIME VICTIM'S RIGHTS ACT. 18 U.S.0 . SECTION 3771 COMES NOW the Petitioner, JANE DOE (hereinafter "Petitioner"), by and through her undersigned attorneys, pursuant to the Crime Victim's Rights Act, 18 U.S.C. Section 3771 ("CVRA"), and files this Petition for Enforcement in the above styled action as follows: 1. Petitioner, an adult, as a minor child was a victim of federal crimes committed by JEFFREY EPSTEIN (hereinafter "Defendant"). These crimes included sex trafficking of children by fraud, in violation of 18 U.S.C. § 1591, use of a means of interstate commerce to entice a minor to commit prostitution, in violation of 18 U.S.C. § 2422, as well as wire fraud, in violation of 18 U.S.C. § 1343. The Defendant committed these crimes within the jurisdiction of the Southern District of Florida in Palm Beach County, Florida. 2. Upon Information and belief, the Defendant is the subject of a federal criminal investigation conducted by the United States of America in the Southern District of Florida. The Defendant has recently been prosecuted and pleaded guilty, on June 30, 2008, in the Circuit Court for Palm Beach County to various similar state offenses including solicitation of minors for prostitution. 3. Upon information and belief, the Defendant is engaged in plea negotiations with the Office of the United States Attorney for the Southern District of Florida concerning federal 1 of 10 EFTA00180680 Case 9:08-cv-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 Page 2 of 10 crimes which he is alleged to have committed against minor children, including the Petitioner. Such negotiations may likely result in a disposition of the charges in the next several days. 4. Under the CVRA, before any charges are filed against the Defendant, the Petitioner has the rights (among others) to notice of her rights under the CVRA, to confer with the prosecutors, and to be treated with fairness. As soon as charges are filed, the Petitioner has the rights (among others) to timely notice of court proceedings, the right not to be excluded from such proceedings, the right to be heard at such public proceedings regarding conditions of release, any plea, and any sentence, the right to confer with the attorney for the government, the right to restitution, and the right to be treated with fairness and with respect for her dignity and privacy. 5. The Petitioner has been denied her rights in that she has received no consultation with the attorney for the government regarding the possible disposition of the charges, no notice of any public court proceedings, no information regarding her right to restitution, and no notice of rights under the CVRA, as required under law. 6. The Petitioner is in jeopardy of losing her rights, as described above, if the government is able to negotiate a plea or agreement with the Defendant without her participation and knowledge. WHEREFORE, for the reasons outlined above, the Petitioner respectfully requests this Court to grant her Petition, and to order the United States Attorney to comply with the provisions of the CVRA prior to and including any plea or other agreement with the Defendant and any attendant proceedings. 2 20110 EFTA00180681 Case 9:08-cv-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 Page 3 of 10 4useg %elf MEMORANDUM 1. THE CRIME VICTIMS' RIGHTS ACT MAKES CRIME VICTIMS INDEPENDENT PARTICIPANTS THROUGHOUT THE CRIMINAL JUSTICE PROCESS. In October 2004, Congress passed and the President signed into law the Crime Victims' Rights Act, Pub. L. No. 108-405, 118 Stat. 2251 (codified at 18 U.S.C. § 3771). Because this appears to be the first case involving the Act to come before this Court, a bit of background may be in order. A. The CVRA Gives Crime Victims Rights to Participate in the Criminal Justice Process. Congress passed the CVRA "to give crime victims enforceable rights to participate in federal criminal proceedings." Opinion at 14. Congress was concerned that in the federal system crime victims were "treated as non-participants In a critical event in their lives. They were kept in the dark by prosecutors too busy to care enough ... and by a court system that simply did not have a place for them." 150 CoNo. REC. 54262 (Apr. 22, 2004) (statement of Sen. Feinstein). To remedy this problem, Congress gave victims "the simple right to know what is going on, to participate in the process where the information that victims and their families can provide may he material and relevant ... ." Id. The CVRA gives victims of federal crimes a series of rights, including the right to notice of court proceedings, to be heard at plea and sentencing hearings, and to reasonably "confer with the attorney for the Government in the case." 18 U.S.C. § 3771(a). Victims also have a "right of access to the terms of a plea agreement ... ." In re Interested Party I, 530 F.Supp. 2d 136, 2008 WL 134233 at *7 (D.D.C. 2008). The CVRA also assures victims broadly that they will "be treated with fairness." 18 U.S.C. § 3771(a)(8). 3 3010 EFTA00180682 Case 9:08-cv-80736-KAM Document I Entered on FLSD Docket 07/07/2008 Page 4 of 10 Of course, these rights would be of little use to most crime victims unless they were told about them. To ensure that victims are notified of their rights, the CVRA directs employees of the Justice Department "and other departments and agencies of the United States engaged in the detection, Investigation, or prosecution of crime" to use their "best efforts to see that crime victims are notified of... the rights described (in the CVRA]." 18 U.S.C. § 3771(c)(1) (emphasis addeft).1 B. The CVRA Gives Victims Rights During the Investigation of a Crime. The CVRA gives victims rights during the investigation of a crime. The Fifth Circuit recently reached this conclusion, holding: The district court acknowledged that "Where are clearly rights under the CVRA that apply before any prosecution is underway." RE Prods,. 2008 WL 501321 at •11.2008 U,S. Dist. LEXIS 12893, at *36 Logically, this includes the CVRA's establishment of victims' "reasonable right to confer with the attorney for the Government." 18 U.S.C. 6 3771(a)(5). At least in the posture of this case (and we do not speculate on the applicability to other situations), the government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims' views on the possible details of a plea bargain. In re Dean, 527 F.3d 391, 394 (5th Clr. 2008). The position that CVRA rights apply before charges have been filed is consistent with the Justice Department regulations under the CVRA, which explain that government officials "must advise a victim (about their rights under the CVRA] ... at the earliest opportunity at which it may be done without interfering with an investigation." A.G. GUIDELINES FOR VICTIM AND WITNESS 1 Further supporting this requirement Is another statute, 42 U.S.C. § 10607(O(3), which directs government officials to provide victims with "the earliest possible notke of," among other things, "the filing of charges against a suspected offender." 4 doll, EFTA00180683 Case 9:08-cv-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 Page 5 of 10 1.8•0 %or' ASSISTANCE 23 (May 2005). And the plain language of the CVRA undergirds this conclusion, as it applies not simply to prosecutors but to government agencies "engaged in the detection [and] investigation ... of crime ... ." 18 U.S.C. §3771(c)(1). Indeed, if there were any doubt, the plain language of the CVRA extends victims' right to situations "in which no prosecution is underway." 18 U.S.C. § 3171(d)(3). II. PETITIONER IS A "VICTIM PROTECTED BY THE CVRA. Under the CVRA the crime victim is defined as "a person directly and proximately harmed as a result of the commission of a Federal offense ... ." 18 U.S.C. Section 3771(e). In particular, Defendant called Petitioner when she was a minor over a telephone (a means of interstate communication) requesting that she perform a massage in exchange for payment. As Defendant well knew, that request was fraudulent, as he not only intended to receive a massage, but also intended to have her perform sexual acts in exchange for a cash payment to Petitioner. Only when Petitioner arrived at a Defendant's mansion as directed by Defendant, did Defendant reveal his true purpose of obtaining sexual favors in exchange for payment. This conduct violated 18 U.S.C. § 2422, which forbids using a means of interstate commerce to knowingly "induce" or "entice" a minor "to engage in prostitution." In addition, this conduct was both a use of "fraud" to obtain a commercial sex act, in violation of 18 U.S.0 § 1591, and use of wire communications to perpetrate a "scheme and artifice to defraud." in violation of 18 U.S.C. § 1343. It appears obvious that Petitioner was "directly and proximately" harmed by these crimes, thereby making her a victim under the CVRA. It should be emphasized that the CVRA "was designed to be a 'broad and encompassing' statutory victims' bill of rights." United Slates I 5 EFTA00180684 Case 9:08-ov-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 Page 6 of 10 Degenhardt, 405 F.Supp.2d 1341, 1342 (D. Utah 2005) (quoting 150 Cong. Rec. S4261 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein)). Congress intended the CVRA to dramatically rework the federal criminal justice system. In the course of construing the CVRA generously, the Ninth Circuit observed: "The criminal justice system has long functioned on the assumption that crime victims should behave like good Victorian children -- seen but not heard. The Crime Victims' Rights Act sought to change this by making victims independent participants in the criminal justice process." Kenna v. U.S. Dist. Court for C.D. Cal., 435 F.3d 1011, 1013 (9th Clr. 2006). Accordingly, because the CVRA is remedial legislation, courts should interpret it "liberally to facilitate and accomplish its purposes and Intent." Elliott Industries Ltd. Partnership v. BP America Production Co., 407 F.3d 1091, 1118 (10th Cir. 2005) (noting remedial legislation should be "interpreted liberally to facilitate and accomplish its purposes and intent"), The CVRA itself suggests this conclusion by requiring that courts must treat crime victims with "fairness." United States v. Patkar, 2008 WL 233062 at *3 (D. Flaw. 2008) (citing United States v. Turner, 367 F.Supp.2d 319, 335 (E.D.N.Y. 2005)). Not only must the CVRA as a whole be interpreted liberally, but its definition of "crime victim" requires a generous construction. After reciting the direct-and-proximate-harm language at issue here, one of the Act's two co-sponsors -- Senator Kyl -- explained that "[tjhis is an intentionally broad definition because all victims of crime deserve to have their rights protected ." 150 Cong. Rec. S10912 (Oct. 9, 2004) (emphasis added). The description of the victim definition as "intentionally broad" was in the course of floor colloquy with the other primary sponsor of the CVRA and therefore deserves significant weight. See Kenna, 435 F.3d at 1015-16 (discussing significance of CVRA sponsors.. floor statements). 6 EFTA00180685 Case 9:08-cv-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 Page 7 of 10 The definition of "crime victims" must thus be construed broadly in favor of Petitioner. She obviously qualifies as a "victim" under the CVRA. III. PETITIONER IS ENTITLED TO NOTICE OF HER RIGHTS, AN OPPORTUNITY TO CONFER WITH THE PROSECUTORS AND TO BE TREATED WITH FAIRNESS. Because Petitioner is a "victim" under the CVRA, she has certain protected rights under the Act. Most important, the Act promises that she will have an opportunity to "confer with the attorney for the Government in the case." To date, Petitioner has not been given that right. This raises that very real possibility that the Government may negotiate and conclude a plea agreement with the Defendant without giving Petitioner her protected rights.2 Petitioner is entitled to have this conference with prosecutors before any final plea agreement is reached. The Fifth Circuit reached exactly this conclusion in a very recent case. In In re Dean, 527 F.3d 391 (5th Cir. 2008), the Government negotiated a plea agreement with the well-heeled corporate defendant without conferring with the victims. When the Government's fhilure was challenged in the Fifth Circuit, the Fifth Circuit concluded that the Government had indeed violated the CVRA. The Fifth Circuit observed: "in passing the [CVRA), Congress made the policy decision-which we are bound to enforce-that the victims have a right to inform the plea negotiation process by conferring with prosecutors before a plea agreement is reached." M. at 394. This Court is obligated to protect the rights of Petitioner. The CVRA directs that "ifin any court proceeding involving an offense against a crime victim, the court shall ensure that the 2 On information and belief, roughly the same crimes were committed against several other young females. Those victims, too, are In danger of losing their right to confer under the CVRA. 7 lel to EFTA00180686 Case 9:08-cv-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 Page 8 of 10 crime victim is afforded the rights described in [the CVRA)." 18 U.S.C. § 3771(b)(1). The CVRA also confers on crime victims the right to "assert the rights described in [the CVRA1." 18 U.S.C. § 3771(d)(1). Therefore, this Court has its own independent obligation to intercede and ensure that the Government respects the rights of Petitioner under the CVRA. CONCLUSION The Petitioner requests the intervention of this Court to ensure that her rights are respected and accorded, as promised in the Crime Victims' Rights Act. DATED this I" th day of My, 2008. Respectfully Submitted, THE LAW OFFICE OF BRAD EDWARDS & ASSOCIATES, LLC Brad Edwards, Esquire Attorney for Petitioner Florida Bar #542075 2028 Harrison Street Suite 202 Hollywood, Florida 33020 Telephone: Facsimile: 8 o4 10 EFTA00180687 Case 9:08-cv-80736-KAM Document 1 Entered on FLSD Docket 07/07/2008 Page 9 of 10 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the above and foregoing has been provided by United States mail and via facsimile to: ANN MARIE C. VILLAFANA, AUSA, United States Attorney's Office, 500 South Australian Avenue, Suite 400, West Palm Beach, Florida 33401, this ab day of July, 2008. Brad Edwards, Esquire Attorney for Petitioner Florida Bar No. 542075 9 I M1' EFTA00180688 I °8-1 40Pachig 4 4-1381 Al tIPANI§Pt catered on FLSD Docket 07/07/2008 ',If 44 Me, :1141 CIVIL COVER SHEET —he IS 44 tie leaver shed and the Infonmalon contaiaed herein neither replace nee supplement the filing and service of pleadinset or other papers a by local nolcsof cant. This form, approved by iheJudklal Contaeneeor the Uniled Sates in September 1974, Is rewired for the use or the Clerk theolyil e cad dwa. IS CI INSTRUCTIONS ON THE REVERS( Of THE FOAMS NOTICE: Altorneys MUST Indicate All Re-filed I. (a) PLAINTIFFS -177 re: Jane Poe DEFENDANTS 5-thfeso/ - fttectagi OW 0 D.C. JULY 7, 2008 STEVEN M.LARIMORE CLERK U.S. 01ST. CT. 6.0. 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Only) PE RELATED/RE-FILED CASE(S). a) Re-filed Case 0 YES 0 NO b) Related Cases C1 YES 0 NO 114410.100110. /goof an: JUDGE DOCKET NUMBER I'll. CAUSE OF ACTION P the U.S. OA While under Much you ore ruling and Write a Brientartmani of Cause (Do not ale Jarlsdkiland NfiluleS West dlunesIUR Cr,),te 1%,ft lervcit 47c* usefr 5771 Amp'peon on behalf od wchki of Qt Chirrent'S 16 ic ccoe9ed hav ',pe (mole.-- ix 4, CVAit LENGTH OF TRIAL vie I days...Mowed ((or both tidos to ay mite tae) VIII. REQUESTED IN 0 CHECK IF THIS IS ACLASS ACTION DEMANDS CHECK YES only if demanded in eamplaino COMPLAINT; UNDER F.RC.P. 2) JURY DEMAND: 9 Yes U No 0.BOVE INFORMATION IS TRUE & CORRECT TO ;WHAM um or RECORD onto 111¢ BEST OF MY KNOWLEDGE •-• 7 FOR ()MCC CSC ONLY AMOUNT 5D YIP RECEIPT I l(10110 EFTA00180689 LEGAL RECYCLED PAPER 0.O nO3.Os• .ra TO REORDER CALL 951444-9399 EFTA00180690 cc O EFTA00180691 I 1 1 1 1 I I )1 1 1 I: Case 9:08-cv-80736-KAM Document 28 Entered on FLSD Docket 09/25/2008 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, v. UNITED STATES OF AMERICA, Respondent. VICTIM'S MOTION TO UNSEAL NON-PROSECUTION AGREEMENT COMES NOW the Petitioners, Jane Doe #1 and Jane Doe #2, by and through their undersigned attorneys, pursuant to the Crime Victim's Rights Act, 18 U.S.C. Section 3771 ("CVRA"), and file this motion to unseal the non-prosecution agreement that has been provided to their attorneys under seal in this case. The agreement should be unsealed because no good cause exists for sealing it. Moreover, the Government has inaccurately described the agreement in its publicly-filed pleadings,.creating a false impression that the agreement protects the victims. Finally, the agreement should be unsealed to facilitate consultation by victims' counsel with others involved who have information related to the case. EACKGROUND As the court is aware, this action was brought by two crime victims (hereinafter referred to as "the victims") seeking protection of their rights under the Crime Victim's Rights Act, 18 • U.S.C. § 3771. At the center of this action is an agreement between the United Statesand Jeffrey Epstein that (as described in earlier court pleadings publicly filed by file Government) involved EFTA00180692 Case 9:08-cv-80736-KAM Document 28 Entered on FLSD Docket 09/25/2008 Page 2 of 8 Epstein's entry of guilty pleas to various state charges and an 18-month jail sentence, in exchange for which the U.S. Government apparently agreed to defer all federal prosecution — including any federal prosecution for the federal crimes committed against the victims. At a hearing held on August 14, 2008, the court ordered the Government to produce to counsel for the victims the non-prosecution agreement. That production, however, was to be done under protective order in the first instance. The agreement has now been produced. At the earlier hearing, the court recognized that the victims' counsel might at a later date seek to have the sealing lifted. That date has now arrived. ARGUMENT As the court envisioned might well happen, counsel for the victims now believe that sealing of the agreement is no longer appropriate. The non-prosecution agreement should now be unsealed for three reasons. 1. No Good Cause Has Been Shown for Sealing the Agreement Having now reviewed the agreement, counsel for the victims can find no legitimate basis for the document to be sealed. Because it stands at the center of this litigation (as well as several related civil suits), the burden should fall on those who would keep the document sealed to show cause for doing so. No good cause has yet been shown. Cf. United . States v. Ochoa-Vasque, 428 F.3d 1015 (11th Cir. 2005) (to justify sealing of court records "a court must articulate the overriding interest along with findings specific enough that a reviewing court can determine whether the closure order was properly entered!'). 2. The Government Has Inaccurately Described the Agreement. In its publicly-filed pleadings in this case, the Government has inaccurately 2 EFTA00180693 Case 9:08-cv-80736-KAM Document 28 Entered on FLSD Docket 09/25/2008 Page 3 of 8 described the non-prosecution agreement, creating the false impression that it is more favorable to the victims than it actually is. Accordingly, the non-prosecution agreement should be unsealed so that the true state of affairs is reflected in the court's file. In its response to the victims' petition, the Government states that the non- prosecution agreement contains the following provision: Any person, who while a minor, was a victim of a violation of an offense enumerated in Title 18, United states Code, Section 2255; will have the same rights to proceed under Section 2255 as she would have had, if Mr. Epstein had been tried federally and convicted of an enumerate offense. For purposes of implementing this paragraph, the United States shall provide Mr. Epstein's attorneys with a list of individuals whom it was prepared to name in an Indictment as victims of an enumerated offense by Mr. Epstein. Any judicial authority interpreting this provision, including any authority determining which evidentiary burdens if any a plaintiff must meet, shall consider that it is the intent of the parties to place these identified victims in the same position as they would have been had Mr. Epstein been convicted at trial. No molt; no less. Govt's Resp. to Victim's Emergency Petition for Enforcement of Crime Victim's Right at 4. The sworn declaration of the Assistant U.S. Attorney handling this matter also recounts the same language. See Declaration of A. Marie Villafafla in Support of United States' Response to Victims' Emergency Petition at 3.4. The sworn declaration also states that victims were told about this language in October 2007. See Declaration of A. Marie Villafafia at 4 ("In October 2007, shortly after the agreement was signed, four victims were contacted and these provisions were discussed"). On July 9, 2008, the victims received notice from the Government that the above-described provision was negotiated on behalf of the victims for their protection and was 3 EFTA00180694 Case 9:08-cv-80736-KAM Document 28 Entered on FLSD Docket 09/25/2008 Page 4 of 8 II thus contained In the non-prosecution agreement. I Having now reviewed the non-prosecution agreement, the Government's response to the victims' motion and the accompanying sworn declaration are simply untrue. The above- quoted provision simply does not appear in the agreement anywhere. It is true that the non- prosecution agreement contains a provision bearing on the same subject. However, this provision has a number of quali6,ing provisos that make it far less favorable to the victims than the above-described provision. (To avoid filing a separate, sealed pleading laying out the differences, counsel for the victims have simply described the differences in general terms. We trust that the Government, in its response, will agree that it has erroneously described the agreement to the court and the victims.) The Government should be required to correct its previously-filed pleadings to accurately recount the non-prosecution agreement that it reached with Epstein. Moreover, the Government should also be required to state forthrightly whether through the last nine months, it gave the victims (like the court) inaccurate information about what the non-proseoution agreement entailed. But most important, because the current sealing of the non-prosecution agreement creates a false and deceptive appearance about the agreement that the Government has actually reached with Epstein, the agreement should be unsealed. Indeed, it should be noted that sealing of materials in this case appears to operate in a rather peculiar fashion. The Government apparently feels free to disclose to the victims one provision In the non-prosecution agreement that it believes it is to its advantage to disclose, but not others. The Government should not be permitted to pick and choose, particularly where it 1 The Government has recently provided a new notice to the victims, containing different language. 4 EFTA00180695 Case 9:08-cv-80736-KAM Document 28 Entered on FLSD Docket 09/25/2008 Page 5 of 8 has inaccurately described the provision that it has chosen to disclose. 3. The Non-Prosecution Agreement Should be Unsealed To Facilitate Effective Representation of the Victims in this Action and Related Civil Actions. The sealing order bars the victims' counsel from "disclos[ing] the Agreement or its terms to any third party absent further court order, following notice to and an opportunity for Epstein's counsel to be heard." Order to Compel Production and Protective Order at 1. Victims' counsel have scrupulously abided by that restriction. Victims' counsel would, however, now like to discuss the terms of the non-prgsecution agreement with third parties in making a determination about how best to proceed in this action, including what remedies to seek for the violations of victims' rights that have occurred. Counsel, therefore, respectfully seek the "further court order" that the sealing order envisions, In particular, victims' counsel would like to discuss the agreement with other victims of Epstein and their attorneys to determine whether they were likewise provided with inaccurate information about the nature of the plea agreement. Victims' counsel would also like to discuss possible legal responses to the Government with other victims' rights attorneys, including in particular the National Alliance of Victims' Rights Attorneys for possible legal approaches. See htto://wvvw.ncvli.orginavra,html. The sealing order would apparently block these forms of consultation, or perhaps require such burdensome non-disclosure obligations as to make the consultation difficult or impractical. Finally, victims' counsel would like to refer to the non-prosecution agreement in a parallel civil suit that is pending before this court, See Jane Doe Jeffrey Epstein, United States District Court, Southern District of Florida, Case No.: 08-C111- 80893-AtiRRii-JOHNSON. To facilitate all these discussions, the non-prosecution agreement 5 EFTA00180696 Case 9:08-cv-80736-KAM Document 28 Entered on FLSD Docket 09/25/2008 Page 6 of 8 should be unsealed. NOTICE TO EPSTEIN It is possible that Jeffrey Epstein will object to the unsealing of the agreement. Accordingly, the court should provide notice of this motion to Jeffrey Epstein, through counsel. Jeffrey Epstein's counsel has entered an appearance in several related civil suits, including Jane Doe'. Jeffrey Epstein, United States District Court, Southern District of Florida, Case No.: 08- CIY-80893-MARRA-JOHNSON. Although Epstein's counsel has not entered an appearance in this matter, as a courtesy to them, counsel for the victims' will provide a copy of this pleading at the address indicated in the related civil suit. CONCLUSION The non-prosecution agreement should be unsealed. DATED this 25th day of September, 2008. Respectfully Submitted, THE LAW OFFICE OF BRAD EDWARDS & ASSOCIATES, LLC By: s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioners Florida Bar No. 542075 2028 Harrison Street Suite 202 Hollywood, Florida 33020 Telephone: Facsimile: E-Mail: 6 EFTA00180697 Case 9:08-cv-80736-KAM Document 28 Entered on FLSD Docket 09/25/2008 Page 7 of 8 Paul G. Cassell Attorney for Petitioners Pro Hac Vice 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: Facsimile: E-Mall: Jay C. Howell, Esquire Attorney for Petitioners Pro Hac Vice 644 Cesery Boulevard Suite 250 Jacksonville, Florida 32211 Telephone: Facsimile: E-Mail: CERTIFICATE OF SERVICE I HEREBY CERTIFY that on September 25, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. SERVICE LIST Jane Doe I and Jane Doe 2 Case No.: 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Assistant U.S. Attorney 99 N.E. 4th Street Miami, Florida 33132 Telephone: Facsimile: 7 EFTA00180698 Case 9:08-cv-80736-KAM Document 28 Entered on FLED Docket 09/25/2008 Page 8 of 8 i F United States Attorney's Office 500 South Australian Avenue Suite 400 West Palm Beach, Florida 33401 s/ Brad Edwards