Case 9:08-cv-80119-KAM

Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 3, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 4, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 5, Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 08-CV-80119-MARRA/JOHNSON CASE NO.: 08-CV-80232-MARRA/JOHNSON CASE NO.: 08-CV-80380-MARRALJOHNSON CASE NO.: 08-CV-8038I-MARRA/JOHNSON EFTA00182748 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 2 of 8 Doe 101 v. Epstein Page 2 JANE DOE NO. 6, Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 08-80994-CIV-MARRA/JOHNSON CASE NO.: 08-80993-CIV-MARRA/JOHNSON JANE DOE NO. 7, Plaintiff, JEFFREY EPSTEIN Defendant. CASE NO.: 08-80811-CIV-MARRAJJOHNSON Plaintiff, JEFFREY EPSTEIN Defendant. JANE DOE, CASE NO.: 08-80893-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. DOE II, CASE NO.: 09-80469-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. EFTA00182749 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 3 of 8 Doe 101 v. Epstein Page 3 JANE DOE NO. 101, Plaintiff, JEFFREY EPSTEIN Defendant. CASE NO.: 09-80591-CIV-MARRA-JOHNSON JANE DOE NO. 102, CASE NO.: 09-80656-CIV-MARRAMOHNSON Plaintiff, JEFFREY EPSTEIN, Defendant. DEFENDANT EPSTEIN'S RESPONSE TO PLAINTIFFS JANE DOE NOS. 101 AND 102'S MOTION FOR LEAVE TO FILE UNDER SEAL RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO STAY OR, IN THE ALTERNATIVE, TO UNSEAL THE NONPROSECUTION AGREEMENT (dated 5/29/09, IDE 1281 Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned attorneys responds to the Plaintiffs' Jane Doe No. 101 and Jane Doe No. 102 ("Plaintiffs") Motion For Leave To File Under Seal Response In Opposition To Defendant's Motion To Stay Or, In The Alternative, To Unseal The Nonprosecution Agreement, and states: 1. This Court has already entered orders preserving the confidentiality of the Non- Prosecution Agreement ("NM") and denying prior attempts to have the document unsealed. See Court's Orders, attached hereto as Exhibit A and Exhibit B, respectively, entered in In Re: Jane Does 1 and 2. Petitioners Case No. 08-80736-CIV-MARRA/JOHNSON, A. Order To Compel Production And Protective Order, [DE 26], dated August 21, 2008, and B. Order [DE 36], dated February 12, 2009, on Petitioners' Motion To Unseal Non-Prosecution Agreement [DE 28]. Both of these Orders are clear that the terms of the NPA are to remain confidential and remain EFTA00182750 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 4 of 8 Doe 101 v. Epstein Page 4 protected from being disclosed to third parties. The NPA is an agreement between the United States Attorney's Office and EPSTEIN. Plaintiffs' motion presents nothing in support of this Court modifying its prior orders. 2. Significantly, even the United States Attorney's Office (USAO), along with Defendant, has strongly opposed making the NPA public. Attached as Exhibit C hereto is Respondent United States of America's Opposition To Victims' Motion To Unseal Non- Prosecution Agreement, dated October 8, 2008, [DE 29], also filed in In Re: Jane Does 1 and 2, Petitioners, Case No. 08-80736-CIV-MARRA/JOHNSON. In opposing the petitioners' attempts to make public the terms of the NPA, the United States in the Response, Exhibit C, stated: Since the Agreement (NPA) has not been filed under seal with this Court, the legal authority cited by petitoners regarding sealing of documents, United States v. Ochoa-Vasque, 428 F.3d 1015 (11th Cir. 2005), is inapposite. The parties who negotiated the Agreement, the United States Attorney's Office and Jeffrey Epstein, determined the Agreement should remain confidential. They were free to do so, and violated no law in making such an agreement. Since the Agreement has become relevant to the instant lawsuit, petitioners have been given access to it, upon the condition that it not be disclosed further. Petitioners have no legal right to disclose the Agreement to third parties, or standing to challenge the confidentiality provision. After the United States' response, Exhibit C, this Court entered its Order, Exhibit B, agreeing with the United States' position and maintaining the confidentiality of the NPA in accordance with its prior Order, Exhibit A. The "victims" who were provided a copy of the NPA were and are required to maintain the NPA's confidentiality and not disclose the terms to third parties. 3. Other parties in the consolidated cases have been able to file their responses without a similar request being made. Defendant believes that these Plaintiffs can fully respond without the need to file under seal; and reference provisions generally. However if the Court is EFTA00182751 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 5 of 8 Doe 101 v. Epstein Page 5 inclined to grant this Order, then in order to continue to protect the confidentiality of the NPA and to comply with the Court's prior Orders, Exhibit A and Exhibit B, Defendant would agree to allow Plaintiff to file under seal ligl• response and reference only those portions (identified herein) of the NPA which are potentially relevant to the issues arising under claims brought pursuant to 18 U.S.C. §2255 and thus, that may have impact on Defendant's motion for stay and Plaintiff's response thereto. Specifically, the only portions relevant for this Court to make a decision on Defendant's motion and Plaintiffs' response are paragraphs 7, 8, 9, and10 of the NPA, and paragraphs 7A, 7B, and 7C of the Addendum To The NPA. WHEREFORE, Defendant requests that this Court enter an Order denying any attempts by Plaintiffs to unseal or make public or to disclose to third parties the terms of the NPA, and to deny Plaintiffs move to file their response under seal; or if the Court is inclined to grant the motion, to allow Plaintiff to file her response to the motion to stay and only the specified portions of the NPA and Addendum thereto under seal. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this 10th day of June , 2009 Respectfully sub tted, By: ROBERT D. R1TTON, JR., ESQ. Florida Bar MICHAEL J. PIKE, ESQ. BURMAN, CROTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 EFTA00182752 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 6 of 8 Doe 101 v. Epstein Page 6 Phone Fax (Counsel for Defendant Jeffrey Epstein) EFTA00182753 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 7 of 8 Doe 101 v. Epstein Page 7 Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRA/JOHNSON Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mermelstein & Horowitz, P.A. 18205 Biscayne Boulevard Suite 2218 Miami FL 3 160 Fax: ssmasexabuseattomev.com Counsel for Plaintiffs in Related Cases Nos. 08-80069, 08-80119, 08-80232, 08-80380, 08- 80381, 08-80993, 08-80994 Richard Horace Willits, Esq. Richard H. Willits, P.A. 2290 10ib Avenue North Suite 404 Lake Worth. FL 33461 Fax: Counsel for Plaintiff in Related Case No. 80811 Brad Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard Suite 1650 Fort Laud rdal F1.33301 Phon • Counsel for Plaintiff in Related Case No. 08- 80893 Paul G. Cassell, Esq. Pro Hac Vice 332 South 1400 E, Room 101 Salt T. aka City, UT 84112 Co-counsel for Plaintiff Jane Doe 08- Isidro M. Garcia, Esq. Garcia Law Firm, P.A. 224 Datura Street, Suite 900 ch, FL 33401 Jack Scarola, Esq. Jack P. Hill, Esq. Scatty Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Counsel for Plaintiff, Counsel for Plaintiff in Related Case No. 08- 80469 Robert C. Josefsberg, Esq. Katherine W. Ezell, Esq. Podhurst Orseck, P.A. 25 West Hagler Street, Suite 800 130 EFTA00182754 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 8 of 8 Doe 101 v. Epstein Page 8 Bruce Reinhart, Esq. Bruce E. Reinhart, P.A. 250 S. Australian Avenue Suite 1400 West Palm Beach, FL 33401 Counsel for Defendan Theodore J. Leopold, Esq. Spencer T. Kuvin, Esq. Ricci-Leopold, P.A. 2925 PGA Blvd., Suite 200 Palm Beach Gardens, FL 33410 Fax: Counsel for Plaintiff in Related Case No. 08- 08804 Counsel for Plaintiffs in Related Cases Nos. 09-80591 and 09-80656 Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 Beach, FL 33401-5012 Counsel for Defendant Jeffrey Epstein EFTA00182755 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80993-MARRA-JOHNSON JANE DOE NO. 7 Plaintiff, v. JEFFREY EPSTEIN, Defendant. DEFENDANT EPSTEIN'S FIRST AMENDED ANSWER & AFFIRMATIVE DEFENSES TO PLAINTIFF'S (FIRST) AMENDED COMPLAINT Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN"), by and through his undersigned attorneys, files his Answer to Plaintiff's Amended Complaint [DE 19] and states: 1. Without knowledge and deny. 2. As to the allegations in paragraphs 2, Defendant asserts his Fifth Amendment privilege against self-incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 41" DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - lilt would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self- Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. - EFTA00182756 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 2 of 10 Jane Doe No. 7 v: Epstein Page 2 "... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self-incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 3. As to the allegations in paragraph 3, deny. 4. As to the allegations in paragraph 4, deny. 5. As to the allegations in paragraph 5, without knowledge and deny. 6. As to the allegations in paragraphs 6, Defendant asserts his Fifth Amendment privilege against self-incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983) Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "pit would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self- Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. — .. a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self-incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. EFTA00182757 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 3 of 10 Jane Doe No. 7 v. Epstein Page 3 7. As to the allegations in paragraphs 7 through 15 of Plaintiff's Second Amended Complaint, Defendant exercises his Fifth Amendment Privilege against self- incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self- Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[lit would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self-incrimination), because affirmative defenses do not constitute the kind of voluntary application for affirmative relief' which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 8. In response to the allegations of paragraph 16, Defendant realleges and adopts his responses to paragraphs 1 through 15 of the Second Amended Complaint set forth in paragraphs 1 through 7 above herein. 9. Defendant asserts the Fifth Amendment Privilege against self-incrimination to the allegations set forth in paragraphs 17 through 22 of the Second Amended Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 41" DCA 1983); Malloy v. Hogan 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination EFTA00182758 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 4 of 10 Jane Doe No. 7 v. Epstein Page 4 Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - `lilt would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. —"... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self- incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief' which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 10. In response to the allegations of paragraph 23, Defendant realleges and adopts his responses to paragraphs 1 through 15 of the Second Amended Complaint set forth in paragraphs 1 through 7 above herein. 11. Defendant asserts the Fifth Amendment Privilege against self-incrimination to the allegations set forth In paragraphs 24 through 28 of the Second Amended Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[i]t would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court.")• 5 Fed.Prac. & Proc. Civ. 3d EFTA00182759 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 5 of 10 Jane Doe No. 7 v. Epstein Page 5 §1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. —"... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self- incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 12. In response to the allegations of paragraph 29, Defendant realleges and adopts his responses to paragraphs 1 through 15 of the Second Amended Complaint set forth in paragraphs 1 through 7 above herein. 13. Defendant asserts the Fifth Amendment Privilege against self-incrimination to the allegations set forth in paragraphs 30 through 35 of the Second Amended Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[I]t would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny - Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants In civil actions. — "... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self- EFTA00182760 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 6 of 10 Jane Doe No. 7 v. Epstein Page 6 incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. WHEREFORE, Defendant requests that this Court deny the relief sought by Plaintiff. Affirmative Defenses 1. As to all counts, Plaintiff actually consented to and was a willing participant in the acts alleged, and therefore, her claims are barred, or her damages are required to be reduced accordingly. 2. As to all counts alleged, Plaintiff actually consented to and participated in conduct similar and/or identical to the acts alleged with other persons which were the sole or contributing cause of Plaintiffs alleged damages. 3. As to all counts, Plaintiff impliedly consented to the acts alleged by not objecting and by going to Defendant's home with other females and/or by bringing other females to Defendant's home for which Plaintiff received money; and therefore, her claims are barred, or her damages are required to be reduced accordingly. 4. As to all counts, Defendant reasonably believed or was told that the Plaintiff had attained the age of 18 years old at the time of the alleged acts. 5. As to all counts, Plaintiff's claims are barred as she said she was 18 years or older at the time. 6. As to all counts, Plaintiff's alleged damages were caused in whole or part by events and/or circumstances completely unrelated to the incident(s) alleged in the complaint. EFTA00182761 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 7 of 10 Jane Doe No. 7 v. Epstein Page 7 7. Plaintiff's claims are barred by the applicable statute of limitations. 8. As to Plaintiff's claims for punitive damages in Count I — "Sexual Assault & Battery," and Count II — "Intentional Infliction of Emotional Distress," such claims are subject to the limitations as set forth in §768.72, et seq., Florida Statutes. 9. As to Plaintiff's claims for punitive damages in Count I — "Sexual Assault & Battery," and Count II — "Intentional Infliction of Emotional Distress," such claims are subject to the constitutional limitations and guideposts as set forth in BMW of North America v. Gore, 116 S.Ct 1589 (1996)• Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007)• State Farm v. Campbell, 123 S.Ct 1513 (2003); Engle v. Ligget Group, Inc., 945 So.2d 1246 (Fla. 2006). The Due Process Clause of the Fourteenth Amendment of the United States Constitution and Florida's Constitution, Art. I, §§2 and 9, prohibit the imposition of grossly excessive or arbitrary punishments 10.As to Plaintiffs claims for punitive damages in Count I — "Sexual Assault & Battery," and Count II — "Intentional Infliction of Emotional Distress," the determination of whether or not Defendant is liable for punitive damages is required to be bifurcated from a determination of the amount to be imposed. 11. Plaintiff has failed to state a cause of action for sexual assault and/or battery under Count I. 12.As to Count III, Plaintiff has failed to plead a cause of action as she does not and can not show a violation of a predicate act under 18 U.S.C. §2255 (2005). EFTA00182762 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 8 of 10 Jane Doe No. 7 v. Epstein Page 8 13.As to Count III, the version of 18 U.S.C. §2255 in effect at the time of the alleged conduct applies, and, thus, the presumptive minimum damages amount should Plaintiff prove the elements of such claim Is $50,000, and not subject to any multiplier. 14.As to Count III, application of the amended version of 18 U.S.C. §2255, effective July 27, 2006, would be in violation of the legal axiom against retroactive application of an amended statute, and also In violation of such constitutional principles, including but not limited to, the "Ex Post Facto" Clause, U.S. Const. Article I, §9, cl. 3, §10, cl. 1, and procedural and substantive due process, U.S. Const. 14th Amend., 5th Amend. The statute in effect during the time of the alleged conduct applies. 15.As to Count III, application of the amended version of 18 U.S.C. §2255, effective July 27, 2006, is prohibited pursuant to the vagueness doctrine and the Rule of Lenity. A criminal statute is required to give " 'fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.' " United States v. Lanier, 520 U.S. 259, 265, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting McBovle v. United States 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931)) (omission in original). The "three related manifestations of the fair warning requirement" are: (1) the vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application; (2) the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered; (3) due process bars courts from EFTA00182763 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 9 of 10 Jane Doe No. 7 v. Epstein Page 9 applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. 16. The applicable version of 18 U.S.C. §2255 creates a cause of action on behalf of a "minor." Plaintiff had attained the age of majority at the time of filing this action, and accordingly, her cause of action is barred. 17.Because Plaintiff has no claim under 18 U.S.C. §2255, this Court is without subject matter jurisdiction as to all claims asserted. 18.Application of the 18 U.S.C. §2255, as amended, effective July 27, 2006, is in violation of the constitutional principles of due process, the "Ex Post Facto" clause, and the Rule of Lenity, in that in amending the term "minor to "person" as to those who may bring a cause of action impermissibly and unconstitutionally broadened the scope of persons able to bring a §2255 claim. 19. 18 U.S.C. §2255 violates the Equal Protection Clause of the 14'h Amendment under the U.S. Constitution, and thus Plaintiff's claim thereunder is barred. 20. 18 U.S.C. §2255 violates the constitutional guarantees of procedural and substantive due process. Procedural due process guarantees that a person will not be deprived of life, liberty or property without notice and opportunity to be heard. Substantive due process protects fundamental rights. Accordingly, Plaintiffs cause of action thereunder is barred. WHEREFORE Defendant requests that this Court deny the lief sought by Plaintiff. Robert D. ritton, Jr. Attorney f. r Defendant Epstein EFTA00182764 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 10 of 10 Jane Doe No. 7 v. Epstein Page 10 Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of recorthidentified on the following Service List in the manner specified by CM/ECF on this ur Tay of1444-..-•, 2009: Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mermelstein & Horowitz, P.A. 18205 Biscayne Boulevard Suite 2218 Counsel for Plaintiff Jane Doe #7 Jack Alan Goldberger Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 ach, FL 33401-5012 Co-Counsel for Defendant Jeffrey Epstein Respectfully submi d, By: ROBERT D. RITTON, JR., ESQ. Florida Bar o. MICHAEL J. PIKE ESQ. Florida Bar BURMAN, CRIl TON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 ach, FL 33401 Phone Fax (Co-Counsel for Defendant Jeffrey Epstein) EFTA00182765 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 3, Plaintiff; vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 4, Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 5, CASE NO.: 08-CV-80119-MARRA/JOHNSON CASE NO.: 08-CV-80232-MARRA/JOHNSON CASE NO.: 08-CV-80380-MARRAJJOHNSON CASE NO.: 08-CV-80381-MARRA/JOHNSON EFTA00182766 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 2 of 13 Doe 101 v. Epstein Page 2 Plaintiff, JEFFREY EPSTEIN, Defendant. JANE DOE NO. 6, Plaintiff, JEFFREY EPSTEIN, Defendant. JANE DOE NO. 7, Plaintiff; JEFFREY EPSTEIN Defendant. Plaintiff, JEFFREY EPSTEIN Defendant. CASE NO.: 08-80994-CIV-MARRAJJOHNSON CASE NO.: 08-80993-CIV-MARRA/JOHNSON CASE NO.: 08-80811-CIV-MARRA/JOHNSON JANE DOE, CASE NO.: 08-80893-CIV-MARRAJJOHNSON EFTA00182767 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 3 of 13 Doe 101 v. Epstein Page 3 Plaintiff, JEFFREY EPSTEIN et al, Defendants. DOE II, Plaintiff, JEFFREY EPSTEIN et al, Defendants. JANE DOE NO. 101, Plaintiff, JEFFREY EPSTEIN Defendant. JANE DOE NO. 102, Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 09-80469-CIV-MARRA-JOHNSON CASE NO.: 09-80591-CIV-MARRA-JOHNSON CASE NO.: 09-80656-CIV-MARRA/JOHNSON DEFENDANT, JEFFREY EPSTEIN'S REPLY TO JANE DOE NO. 101 AND JANE DOE NO. 102'S RESPONSE IN OPPOSITION TO MOTION TO COMPEL AND IDENTIFY JANE DOE NUMBERS 101 AND 102 IN THIRD PARTY SUBPOENAS FOR PURPOSES OF DISCOVERY EFTA00182768 Cate 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 4 of 13 Doe 101 v. Epstein Page 4 Defendant, Jeffrey Epstein, ("Mr. Epstein"), by and through his undersigned attorneys, hereby files his Reply To Jane Doe No. 101 And Jane Doe No. 102's Response In Opposition To Motion To Compel and Identify Jane Doe Numbers 101 and 102 in Third Party Subpoenas For Purposes of Discovery: 1. Plaintiffs' Response in Opposition is set forth in DE 124. Plaintiffs' response is drafted in a calculated effort to continue to argue issues relating to 18 U.S.C. 2255 rather than deal solely with the issue of identification of the Plaintiffs. Obviously, Plaintiffs' identification takes a second seat to Plaintiffs' attempt to continue to argue issues that are or may be set forth in their opposition to Epstein's motion to dismiss, which largely deals with issues surrounding 18 U.S.C. 2255. See Defendant's Motion to Identify Jane Doe 101 [DE 16]. 2. In their response, Plaintiffs seem to forget that they brought this lawsuit against Epstein. Plaintiffs claim they will suffer physical injury, pain and suffering, emotional distress, psychological and psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss of educational opportunities, loss of self-esteem, loss of dignity, invasion of her privacy, separation from her family, medical and psychological expenses, loss on income, loss of the capacity to earn income in the future, and loss of the capacity to enjoy life. e.g., ¶¶28, Comp., DE 1; see also j¶36, 40, 44, 48, 52, 56, 61, 65, and 69, Comp., DE 1. Jane Doe 101 and 102 came to Defendant's home on a number of occasions. Jane Doe 101 brought her friend, (referenced by name in a number of actions) to experience this same "trauma" — it does not make sense. Jane Doe 101 had issues associated with law enforcement involving drugs, battery, fleeing police; Jane Doe 102 claims to have been raped by two (2) individuals in 1998; pre any involvement with Epstein. This type of information is relevant, and Defendant is entitled EFTA00182769 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 5 of 13 Doe 101 v. Epstein Page 5 to fully explore it. As such, Plaintiffs' have placed their past and medical history as well as education, social, work, interpersonal, recreational legal, criminal and other aspects of their past and current lives at issue in light of the allegations they allege in their respective complaints. Despite Plaintiffs contention and effort to mislead this court, Epstein does not wish to publicize Plaintiffs' names in an effort to embarrass them. On the contrary, Epstein wishes to defend the claims made against him and dispute the damages Plaintiffs' claim by conducting discovery. Again, Plaintiffs allege substantial economic and non-economic personal injury damages. If this Court prevents Epstein from serving Third-Party Subpoenas identifying Plaintiffs, Epstein will be denied his due process rights by Plaintiffs in that he will be prevented from conducting broad, open and liberal discovery. The undersigned must serve subpoenas on medical doctors to obtain medical information related to Plaintiffs' alleged psychological and physical damages and or other third parties such as employees for other damages as same goes to the heart of Epstein's defenses and Plaintiffs' damages. Plaintiffs' intent is to have Epstein try this case without having obtained relevant and meaningful discovery. Plaintiff's proposal will chill Defendant's ability to fully and fairly access and obtain discovery. See infra. 3. Plaintiffs' counsel are competent trial attorneys well versed in many areas of the law, including that of personal injury. Despite the foregoing, Plaintiff's counsel, in some highlighted effort to resolve the discovery issues Plaintiffs have intentionally created in an effort to chill discovery, offers to provide only the documents that Plaintiffs' counsel obtains from third parties through its own selective procedures, and only after Plaintiffs' counsel has been able to cull through same. EFTA00182770 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 6 of 13 Doe 101 v. Epstein Page 6 4. It is hard to believe that any competent law firm responsible to his/her client would ever allow an opposing party to request records and provide those records to the requesting firm only after the opposing firm had an opportunity to review and filter through same. Plaintiffs, in this case, seek thousands if not millions in damages, including physical and emotional/mental and personal injury type, and Epstein must and is entitled to conduct his own discovery thereon. No valid discovery objections or exemptions exist preventing necessary and reasonable discovery. To hold otherwise prevents Mr. Epstein from preparing and defending this matter and denies to him his right to fully and fairly defend these cases. 5. Plaintiffs cite a host of cases for the proposition that anonymity should be granted when, for instance, a fear of retaliation or ostracism exists. Inconsistent with the cases Plaintiffs cite, not once do they state that Plaintiffs will be embarrassed, ostracized, or psychologically and emotionally unable to proceed with the action. Even so, embarrassment alone is not enough. $ Response to Motion to Proceed Anonymously. In determining whether to allow a party to proceed with litigation anonymously, a court must consider whether the identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties. Doe. No. 2 v. Kolko, 242 F.R.D. 193, 195-98 (E.D.N.Y. 2006), citing, Fed.Rules Civ.Proc.Rule 106i), 281.1.S.C,A. Further, Plaintiffs cite cases wherein a psychologist opined that plaintiff suffered or will suffer sever emotional distress. Id. Here, no such affidavit has been provided and/or submitted to this court to justify Plaintiff's requests to proceed anonymously. Good cause must also be shown in order to proceed anonymously. Good cause for a protective order, which Plaintiffs have not filed here, is established upon a showing that disclosure will work a clearly defined and serious injury to the party seeking closure; the injury EFTA00182771 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 7 of 13 Doe 101 v. Epstein Page 7 must be shown with specificity. See Doe v. Evans, 202 F.R.D. 173, 176 (E.D. P.A. 2001). Thus, Plaintiffs have not met their burden of persuasion. N. Plaintiffs fail to show good cause in that they have not clearly defined what injury they will sustain if not permitted to proceed anonymously; they have only offered speculation. Such a failure is fatal to their request to proceed anonymously. See infra. 6. In Kolko, a case cited by the Defendants, the court specifically found that proceeding anonymously (i.e., in the style of the case only) would not inhibit discovery. Here, preventing Epstein from identifying Plaintiffs' in subpoenas and other type discovery overwhelmingly inhibits discovery. Ees Doe v. Evans, 202 F.R.D. at 176 (E.D. P.A. 2001) (denying protective order where alleged sexual assault victim did not demonstrate a serious specific injury and allowing Defendants to identify Plaintiff in discovery because holding otherwise would "chill defendants ability to conduct discovery"). Plaintiffs obviously cannot cite one case preventing open and broad discovery or preventing the identification of Plaintiffs in third-party subpoenas or in other discovery. While Plaintiffs cite to each of above cases, it is misleading for Plaintiffs to suggest the case did not allow for the service of third party subpoenas with the correct names. 7. Next, Plaintiffs' cite a host of criminal cases and statutes which this court has an obligation to distinguish when attempting to in artfully apply same in the civil context. For instance, while Fla. Stat. §794.024 and §794.026 appear to prevent the disclosure of the identity of a sexual assault victim, Fla. Stat. §794.024 only applies to public employees (and to investigations and state prosecutions related to claims of rape) and §794.026 only applies if disclosure is being done "with a reckless disregard for the highly offensive nature of the EFTA00182772 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 8 of 13 Doe 101 v. Epstein Page 8 publication." Rather, disclosure is being requested in order to properly litigate and defend this matter. Further, §794.026 does not (emphasis added) prevent the disclosure of the name of a sexual assault victim - it only allows for civil remedy as a result thereof assuming one meets the criteria to recover (i.e., disclosure with a reckless disregard for the highly offensive nature of the publication). Again, Epstein agreed to enter into a confidentiality agreement and, if required by this court, to redact full names from any document filed with the Court. 8. Next, the language of Fla. Stat. §92.56 makes it clear that the statute only applies criminal proceedings brought by the State of Florida, not civil proceedings. As set forth by the Office of Attorney General, Fla. Stat. §92.56 and Fla. Stat. §794.024 "were created by the Crime Victims Protection Act" See 2003 WL 22971082 (Fla. A.G.). Even though Fla. Stat. §92.56 only applies to criminal proceedings, subsection (2) thereof allows for the accused to apply for an order of disclosure to prepare a defense in a criminal proceeding. 9. In addition, Plaintiffs cite to Fed.R.Evid. 412. The Advisory Committee Notes to Rule 412, Fed.R.Evid, makes clear that the procedures to determine admissibility of an alleged victim's/plaintiffs sexual conduct or activity in civil cases does not apply to discovery of such information. Rather, discoverability of such information is governed by Rule 26, Fed.R.Civ.P., pursuant to which the scope of discovery is broad. Rule 412, entitled "Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition," provides in relevant part - (a) Evidence generally inadmissible.--The following evidence is not admissible in any civil ... proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. EFTA00182773 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 9 of 13 Doe 101 v. Epstein Page 9 (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions.- (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility.-- (1) A party intending to offer evidence under subdivision (b) must— (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise. In confirming that Rule 412 does not control the discoverability of such information, the Advisory Committee Notes (1994 Amendments) state - The procedures set forth in subdivision (c) do not apply to discovery of a victim's past sexual conduct or predisposition in civil cases, which will be continued to be governed by Fed. R. Civ. P. 26. In order not to undermine the rationale of Rule 412, however, courts should enter appropriate orders pursuant to Fed. R. Civ. P. 26 (c) to protect the victim against unwarranted inquiries and to ensure confidentiality. Courts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery. In an action for sexual harassment, for instance, while some evidence of the alleged victim's sexual behavior and/or predisposition in the workplace may perhaps be relevant, non-work place conduct will EFTA00182774 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 10 of 13 Doe 101 v. Epstein Page 10 usually be irrelevant. Cf. Burns v. McGregor Electronic Industries, Inc., 989 F.2d 959, 962-63 (8th Cir. 1993) (posing for a nude magazine outside work hours is irrelevant to issue of unwelcomeness of sexual advances at work). Confidentiality orders should be presumptively granted as well. (Emphasis added). In accordance with Rule 412 and Rule 26, Epstein seeks discovery of Plaintiffs' physical, emotional and psychological history. We are not at the admissibility phase, which Rule 412 addresses. We are at the discovery phase, and identification of the Plaintiffs is required in order to properly litigate and defend the claims against Epstein. Defendant has no other means of obtaining any information about the Plaintiffs' without being permitted to identify Plaintiffs in third party subpoenas and in discovery. Counsel for recognized this conundrum and agreed to identifying and other attorneys in the state court cases and in one of the federal matters have agreed to serve subpoenas with full indentifying information as long as the documents do not disclose the name in the court file. See Exhibit "A". WHEREFORE, Defendant, Mr. Epstein, requests this court allow it to identify Plaintiffs in the style of this case and that Defendant be permitted to identify Plaintiffs in discovery an for such other and further relief as this court deems just and proper. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was de ronica y filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document i being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this day of June 2009. EFTA00182775 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 11 of 13 Doe 101 v. Epstein Page 11 Respectfully By: ROBER'i. R., ESQ. Florida Bar No MICHAISUI. PLIC.B, ESQ. BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 ch, FL 33401 Phone Fax (Counsel for Defendant Jeffrey Epstein) EFTA00182776 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 12 of 13 Doe 101 v. Epstein Page 12 Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRAJJOHNSON Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mermelstein & Horowitz, P.A. 18205 Biscayne Boulevard Suite 2218 Miami, FL 33160 Fax: Counsel for Plaintiffs in Related Cases Nat 08-80069, 08-80119, 08-80232, 08-80380, 08- 80381, 08-80993, 08-80994 Richard Horace Willits, Esq. Richard H. Willits, P.A. 2290 101h Avenue North Suite 404 Lake Worth, FL 33461 Fax: Counsel for Plaintiff in Related Case No. 08- 80811 Jack Scarola, Esq. Jack P. Hill, Esq. Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Fax: ounse Brad Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard Suite 1650 Fort Lauderdale, FL 33301 Phone: Fax: Counsel or P ainti in Related Case No. 08- 80893 Paul G. Cassell, Esq. Pro Hac Vice 332 South 1400 E, Room 101 Salt Lake Cit , UT 84112 ounse ainti f Jane Doe Isidro M. Garcia, Esq. Garcia Law Finn, P.A. 224 Datura Street, Suite 900 West Palm Beach, FL 33401 CounselO" or P ainti in elated Case No. 08- 80469 Robert C. Josefsberg, Esq. Katherine W. Ezell, Esq. Podhurst Orseck, P.A. 25 West Flagler Street, Suite 800 Miami, FL 33130 LIMM EFTA00182777 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 13 of 13 Doe 101 v. Epstein Page 13 Bruce Reinhart, Esq. Bruce E. Reinhart, P.A. 250 S. Australian Avenue Suite 1400 West P each, FL 33401 Fax: Counsel for Defendan Theodore J. Leopold, Esq. Spencer T. Kuvin, Esq. Ricci-Leopold, P.A. 2925 PGA Blvd., Suite 200 Palm Beach Gardens, FL 33410 Fax: Counsel for Plaintiff in Related Case No. 08- 08804 Counsel or 1: 1 ainti s in Related Cases Nos. 09-80591 and 09-80656 Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 ach, FL 33401-5012 Counsel for Defendant Jeffrey Epstein EFTA00182778 0q/05/2009 10:00 FAX ROTHSTEIN ROSENFELT ADLE on Rothstein Rosenfeldt Adler Attorneys of Low FACSIMILE COVER SHEET TO: Esq. FAX NUMBER: FROM: Brodley J. Edwards, Esq. -Susan Stirling M I DATE: June 5, 2009 RE: • v. Epstein Our File No. 09-22784 MESSAGE: Marie, as you probably know. t he Palm Beach Post filed a separate Motion to unseal the NPA. We noticed that the Post did not notice you personally, so I have enclosed a courtesy copy of that Motion and Notice. I hope this finds you well. •Please have your assistant let Susan know that you got this fax. I understand you are in a new office. # OF PAGES 11 (including cover sheet) IF YOU DO NOT RECEIVE THE DESIGNATED NUMBER OF PAGES• OR IF YOU EXPERIENCE ANY PROBLEM WITH THE TRANSMISSION OF THIS DOCUMENT, PLEASE CALL OUR FAX OPERATOR AT THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, OR THE EMPLOYEE OR AGENT RESPONSIBLE FOR DELIVERING THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE ABOVE ADDRESS VIA THE U.S. POSTAL SERVICE. THANK YOU. Reply To: Las Otos City Centre • 401 East Las Olas Botdevard • Suite 1650 • Fon Lauderdale. Florio 33301 Telephone: FORT LAUDERDALE • 0OCA RATON • TAMPA • TALLAHASSEE • NEW YORK CITY • LOS ANGELES • Fax: (954)527.04363 www. r r a-1 a w. c o m EFTA00182779 08/05/2009 10:00 FAX ROTHSTEIN ROSENFELT *OLE 9)002 26-04-'09 15:18 FROM-THOMAS & LOCICERO 8139843070 T-997 P001/003 F-849 THOMAS [ 0£1CFRO BRALOW 400 14. Ashley DrivesSuite I 100aTampa. FL 33602 813-984-3060 (Phone)•813-984-3010 (Fax) Toll Free: 866-395-7100 facsimile transmittal To: R. Alexander Acosta, Eiq. Judith Stevenson Arco, Esq. Michael McAuliffe, Esq. Jack Alan Coldberger, Esq. Bradley J. Edwards, Esq. William J. Berger, Esq. From: »minne K. Shullman, Esq. Re: State v. J. Epsteln Cc: Marilyn Judicial Assistant to Judge Colbath Fax: Date: 06/04/2009 Pesu: 6 Urgent For reviewll Pia= comment f"Please reply U Fleet* soe attached Motion to Intervene and Petition for Access Meese recycle13 CONFIDENTIALITY STATEMGNic This electronic messago transminden contains information from iho Iaw fimt of Thomas, LoCitero • Sido* Pt. and is confidemiel or pnylleged. The information h intaated to be for the use ofthe individual or entity named above. If yö° lue un the trueneed lahna& he awarc ies( any disclosurc, eopyina. diSnibution or fthecontentoefih$Infonnnionisprohibited.Ifyouhaverecoiredthiaelecxonietrmmiaion In arror, plus° notiy as by tetephone immediately. Thmikyou for your coopotallort IRS Cirailat 230 Diodosore. To the «MM Mis contsponderce esanuins Central tax "Ovieg such advice wae ne* intendcdto he tued.ane «anoi he usea by any taxpaycr. Tor Ote painon of 0) avo id Ms hanttiin antia the Immo' Pennut Code or (I) promoting, marketing, or moommending to anolher yarty any cransaction or mene. addrossed beroin. I( yoti would liki us to preparo wrincn Ox Syke dimigned to provido penany 'noloon" ota* oontact us and we wllt ne heppy ro discum Cia ranta with you UI tio04, demil confidential EFTA00182780 08/05/2000 10:00 FAX ROTHSTEIN ROSENFELT ADLE QD003 • 06-04-'09 15:19 FROM-THOMAS & LOCICERO 8139843070 T-997 P002/003 F-849 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION STATE OF FLORIDA Plaintiff; vs. JEFFREY EPSTEIN Defendant. Case Nos.: 2006-CF9454-AXX & 2008-9381CF-AXX NOTICE OF HEARING PLEASE TAKE NOTICE that Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post will call up for hearing its Motion to Intervene and Petition for Access before the Honorable Jeffrey Colbath, Palm Beach County Courthouse, 205 N. Dixie Hwy., Room 11F, West Palm Beach on June 10, 2009 at 10:40 a.m. or as soon thereafter as counsel may be heard. Time reserved: 10 Minutes THOMAS, LOCICERO & BRALOW PL Anna K. Shullman Florida Bar No.: James B. Lake Florida Bar No.: 400 North Ashley Drive, Suite 1100 P.O. Box 2602 (33601) Tampa, FLEW Telephone: Facsimile: Attorneys for The Palm Beach Post EFTA00182781 06/05/2009 10:00 FAX ROTHSTEIN ROSENFELT ADLE Qb004 06-04-'09 15:19 FROM-THOMAS & L0CICER0 8139843070 T-997 P003/003 F-849 State' Epstein Case No. 2006-CF9454 & 2008-9381CF Notice of Hearing on Palm Beach Post's Motion to Intervene CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via 34S. Mail; ifFeCsgnile; :1 Overnight Delivery to R. Alexander Acosta, United States Attorney's Office - Southern District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401; Judith Stevenson Arco, Esq., State Attorney's Office - West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401; William J. Berger, Esq., ROTHSTEIN ROSENFELDT ADLER, 401 East Las Olas Blvd., Ste. 1650, Fort Lauderdale, FL 33394; Bradley J. Edwards, Esq., ROTHSTEIN ROSENFELDT ADLER, 401 East Las Olas Blvd., Ste. 1650, Fort Lauderdale, FL 3394; Jack Alan Goldberger, Esq., Atterbury Goldberger, et al., 250 LA,Ze. S. Australian Ave., Ste. 1400, West Palm Beach, FL 33401 on thi 7 day of June 2 i 09. cc: Judicial Assistant (Via Fax and U.S. Mail) Esquire Court Reporting 2 Atto EFTA00182782 06/05/2009 10:01 FAX ROTHSTEIN ROSENFELT ADLE 005 06-01-'09 15:35 FROM-THOMAS & LOCICERO 8139843070 T-989 P001/007 F-845 THOMAS LOCICERO BRALOW 400 N. As le nnveoSuite 11 IT Ft. 33602 (Phone (Fax) Toll Free: facsimile transmittal • •••••••• ••••••••••••••• • To: R. Alexander Acosta, Esq. Fax: Judith Stevenson Arco, Esq. Michael McAuliffe, Esq, Jack Alan Goldberger, Esq. Brad ley J. Edwards, Esq. William J. Berger, Esq. From: Deanna K. Shullman, Esq. Date: 06/01/2009 Re: State v. J. Epstein Pages: 6 Urgent U For review U I Please comment U Please see attached Motion to intervene and Petition for Access I Please reply U 1 Please recycle K CONFIDENTIALITY STATEMENT This electronic message transmission contains information from the law firm of Thomas. LoCicero & Bralow Pl. end is oanflthintial or privileged. The information Is Intended to be for the use of the individual or entity named above. If you are not the intended recipient, be aware that my disclosure, copying• distribution or uae of the contents of this information is prohlbasa. If you nava received this electronic transmission In error. please nobly us by telephone (913)984.3060 immediately. Thank you for your cooperation IRS Circular 230 Disclosure. To the mescal this ecuresprindaneti contains federal tax advice. such advice was not intended to be uactk and cannot be used by any taxscrytr, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (i) promoting, marketing, or recommending to another prim any transaction or matter addressed herein. If you would like us to prepare written tax advice designed to pros/Ids penalty protective, please contact us and we will be happy to discuss the mater with you in more doiail confidential EFTA00182783 00/05/2009 10:01 FAX ROTHSTEIN ROSENFELT ADLE Qhooe 06-01-'09 15:35 FROM-THOMAS & L0CICER0 8139843070 T-989 P002/007 F-845 THOMAS June 1,2009 LOCICFRO BRALOW VIA FEDERAL EXPRESS OVERNIGHT MAIL 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 Tampa 400 N. AM* Dr Sin 1100. lampt FL33602 P, pm 602 011 Vs Ft. Laudordele 101 N.E. INN Ave.. Stc. 1500 toll tr Now York Clly 220 E. 42nd Sc. 10th Floor www.Oclawliny eme De Direct Dial:NOB Deanna.Shullmanf000lawerm.com Reply To Tampa Re: Dear Judge Colbath: Enclosed is a courtesy copy of non-party Palm Beach Newspapers, Inc. d/b/a The Palm Beach Post's (the "Post") Motion to Intervene and Petition for Access to certain court records in this case. It is our understanding that Bradley Edwards and William Berger of Rothstein Rosenfeldt Adler have filed a similar motion on behalf of a non-party known as =11 and that a motion is set for hearing on June 10, 2009. The Post requests an opportunity to be heard on the issue of access to these records at that time. Thank you for your consideration in this matter. Please do not hesitate to contact me with any questions or comments. Sincerely, THOMAS, LOCICERO & BRALOW PL liesAAA-i(94,4th Deanna K. Shullman cc: Counsel of Record EFTA00182784 06/05/2009 10:01 FAX ROTHSTEIN ROSENFELT ADLE %007 06-01-'09 15:36 FROM-THOMAS & L0CICER3 8139843070 T-989 P003/007 F-845 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION STATE OF FLORIDA vs. Case Nos.: 2006-CF9454-AXX & 2008-9381U-AND( JEFFREY EPSTEIN PALM BEACH POST'S MOTION TO INTERVENE AND PETITION FOR ACCESS Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post (the "Post") moves to Intervene in this action for the limited purpose of seeking access to documents filed under seal. The documents relate directly to the Defendant's guilty plea and sentence. Thus, the sealed documents go to the heart of the disposition of this cam:. But in requesting that Judge Pucillo seal these documents, the parties failed to comply with Florida's strict procedural and substantive requirements for sealing judicial records. In addition, continued sealing of these documents is pointless, because these documents have been discussed repeatedly in open court records. For all of these reasons, the documents must be unsealed. As grounds for this Motion, the Post states: L The Post is a daily newspaper that has covered this matter and related proceedings. In an effort to inform its readers concerning these matters, the Post relies upon (among other things) law enforcement records and judicial records. 2. As a member of the news media, the Post has a right to intervene in criminal proceedings for the limited purpose of seeking access to proceedings and records. See Barron v. Florida Freedom Newspapers. Inc., 531 So. 2d 113, 118 (Fla. 1988) (news media have standing to challenge any closure order); Miami Herald Publ'a Co. v. Lewis 426 So. 2d I, 7 (Fla. 1982) (news media must be given an opportunity to be heard on question of closure). EFTA00182785 08/05/2009 10:01 FAX ROTHSTEIN ROSENFELT ADLE e008 06-01-'09 15:36 FROM-THOMAS & LOCICERO 8139843070 T-989 P004/007 F-845 3. The particular documents under seal in this case are a non-prosecution agreement that was docketed on July 2, 2008, and an addendum docketed on August 25, 2008. Together, these documents apparently restrict any federal prosecution of the Defendant for offenses related to the conduct to which he pleaded guilty in this case. Judge Pucillo accepted the agreement for filing during a bench conference on June 30, 2008. The agreement, Judge Pucillo found, was "a significant inducement in accepting this plea." Such agreements and related documents typically are public record. See Oregonian Publishing Co. v. United States District Court, 920 17.2d 1462, 1465 (9th Cir. 1990) ("plea agreements have typically been open to the public"); United States v. Kooistra, 796 F.3d 1390, 1390-91 (11th Cir. 1986) (documents relating to defendant's change of plea and sentencing could be sealed only upon finding of a compelling interest that justified denial of public access). 4. The Florida Constitution provides that judicial branch records generally must be open for public inspection. Se& Art. I, § 24(a), Ma. Const. Closure of such records is allowed only under narrow circumstances, such as to "prevent a serious and imminent threat to the fair, impartial and orderly administration of justice," or to protect a compelling governmental interest. Fla. R. Jud. Admin. 2.420(c)(9)(A). Additionally, closure must be effective and no broader than necessary to accomplish the desired purpose, and is lawful only if no less restrictive measures will accomplish that purpose. See Fla. R. Jud. Admin. 2. 420(c)(9)(B) & (C); Lewis, 426 So. 24 at 3. 5. In this case, the non-prosecution agreement and, later, the addendum were sealed without any of the requisite findings. Rather, it appears from the record, the documents were sealed merely because the Defendant's counsel represented to Judge Pucillo that the non- prosecution agreement "is a confidential document." See Plea Conference Transcript page 38 2 EFTA00182786 06/0S/2000 10:01 FAX ROTHSTEIN ROSENFELT ADLE 06-01-'09 15:36 FROM-THOMAS & LOCICERO 8139843070 liboop 1-989 F005/007 F-845 (June 30, 2008). Such a representation falls well short of demonstrating a compelling interest, a genuine necessity, narrow tailoring, and that no less restrictive measures will suffice. Consequently, the sealing was improper and ought to be set aside. 6. In addition, at this time good cause exists for unsealing the documents because of their public significance. Since the Defendant pleaded guilty to soliciting a minor for prostitution, he has been named in at least 12 civil lawsuits that — like the charges in this case — allege he brought and paid teenage girls to come his home for sex and/or "massages."' At least 11 cases are pending. In another lawsuit, one of the Defendant's accusers has alleged that federal prosecutors failed to consult with her regarding the disposition of possible charges against the Defendant? State prosecutors also have been criticized: The Palm Beach Police Chief has faulted the State Attorney's handing of then cases as "highly unusual" and called for the State Attorney's disqualification. Consequently, this case — and particularly the Defendant's agreements with prosecutors — are of considerable public interest and concern. 7. The Defendant's non-prosecution agreement with federal prosecutors also was important to Judge Pucillo. As she noted in the June 2008 plea conference, "I would view [the non-prosecution agreement] as a significant inducement in accepting this plea." hS e Plea Conference Transcript page 39. Florida law recognizes a strong-public right of access to documents a court considers in connection with sentencing. Ste Sarasota Herald Tribune. Div. See. eick Doe v. -intent, Case No. 08-80069 (S.D. Fla. 2008). DQC No. 2 v. Epstein, Case No. 08.80119 (S.D. Fla. 2008); Doe No. 3. v. Epstein, Case No. 08-80232 (S.D. Fla. 2008); Doe No. 4. v. Epstein Case No. 08-80380 (S.D. Fla. 2008); Doe No. 5 v. Epstein, Case No. 08- 80381 (S.D. Fla. 2008); 1.1. v. Epstein, Case No. 08-80811 (S.D. Fla. 2008)- Doe v&pstein, Case No. 08-80893 (S.D. Fla. 2008); Doe No. 7 v. Epstein, Case No. 08.80993 (S.D. Fla. 2008); Doe No. 6 v, Epstein, Case No. 08-80994 (SD. Fla. 2008); Doe II v. Epstein, Case No. 09-80469 (S.D. Fla. 2009); Doe No. 101 v. Epstein Case No. 09-80591 (S.D. Fla. 2009). Doe No. 102 v. Epstein, Case No. 09.80656 (S.D. Fla. 2009); Doe No. 8 v. Epstein, Case No. 09-80802 (S.D. Fla. 2009). 2 20 In re: Jane Doe, Case No. 08-80736 (S.D. Fla. 2008). 3 EFTA00182787 06/05/2000 10:01 FAX ROTHSTEIN ROSENFELT ADLE 121010 06-01-'09 15:37 FROM-THOMAS & LOCICERO 8139843078 T-989 P006/007 F-845 of the New York Times Co. v. Holtzendorf 507 So. 2d 667, 668 (Fla. 2d DCA 1987) ("While a judge may impose whatever legal sentence he chooses, if such sentence is based on a tangible proceeding or document, it is within the public domain unless otherwise privileged."). In this case, no interest justifies continued sealing of these "significant" documents that Judge Pucillo considered in accepting the plea and sentencing the Defendant. The lack of any such compelling interest — as well as the parties' failure to comply with the standards for sealing documents initially — provide good cause for unsealing the documents at this time. 8. Finally, continued closure of these documents is pointless, because many portions of the sealed documents already have been made public. For example, court papers quoting excerpts of the agreement have been made public in related federal proceedings! As the Florida Supreme Court has noted, "there would be little justification for closing a pretrial hearing in order to prevent only the disclosure of details which had already been publicized." Le wis, 426 So. 2d at 8. Similarly, in this case, to the extent that information already has been made public, continued closure is pointless and, therefore, unconstitutional. 9. The Post has no objection to the redaction of victims' names (if any) that appear in the sealed documents. In addition, insofar as the Defendant or State Attorney seek continued closure, the Post requests that the Court inspect the documents in camera in order to assess whether, in fact, continued closure is proper. 3 See, ea., "Defendants Jeffrey Epstein and Motion for Stay," Mit Epstein, Case No. 08-80811 (S.D. Fla. July 25, 2008) (filed publicly Jan. 7, 2009). 4 EFTA00182788 06/05/2009 10:01 FAX ROTHSTEIN ROSENFELT ADLE • ei011 06-01-'09 15:38 FROM-THOMAS & LOCICERO 8139843070 T-989 P007/007 F-845 WHEREFORE, the Post respectfully requests that this Court unseal the non-prosecution agreement and addendum and grant the Post such other relief as the Court deems proper. Respectfully submitted, THOMAS, LOCICERO & BRALOW PL canna IC. Sh Florida Bar No.: James B. Lake Florida Bar No.: 101 N.E. Third Avenue, Suite 1500 Fort Lauder Telephone: Facsimile: Attorneys for The Palm Beach Post CERTIFICATE OF SERVICE A FOCA* I HEREBY CERTIFY that a true and correct copy of the foregoing has been tlimished via facsimile and U.S. Mail to: R. Alexander Acosta, United States Attorney's Office - Southern District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401 (fax: Michael McAuliffe, Esq., and Judith Stevenson Arco, Esq., State Attorney's Office - West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401 (fax: I I); Jack Man Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West Palm Beach, FL 33401 (fax: I) ; and Bradley J. Edwards, Esq. and William Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394 (nix: on this 1st clay of June, 2009. 5 EFTA00182789 Page 2 of 5 Westlaw, 780 F.2d 929 780 F.2d 929 (Cite as: 780 F.2d 929) H United States Court of Appeals, Eleventh Circuit. UNITED STATES of America, Plaintiff-Appellant, Leon J. WOOD, III, Defendant-Appellee. No. 85-3261. Jan. 21, 1986. In prosecution for violations of the Racketeer Influ- enced and Corrupt Organizations Act, the United States District Court for the Middle District of Flor- ida, Hodges, Chief Judge, dismissed indictment against defendant, concluding that nonprosecu- tion agreement entered into by the Government and defendant barred prosecution, and the Govern- ment appealed. The Court of Appeals held that de- fendant's failure to disclose his part in possible drug deal amounted to a substantial breach of agreement nullifying Government's promise not to prosecute defendant, even though defendant was acquitted on drug charges arising out of incident in question. Reversed and remanded. West Headnotes Criminal Law 110 *C=.42.5(3) 110 Criminal Law 11011 Defenses in General I 10k42 Immunity to One Furnishing Inform- ation or Evidence I 1 0k42.5 Agreements Granting Immunity Il0k42.5(3) k. Performance and Breach. Most Cited Cases (Formerly I 10k42) Fact that alleged drug deal was not under investiga- tion and that the Government did not specifically inquire about incident did not justify defendant's failure to disclose his knowledge of drug deal, where defendant admitted that he understood that Page I he was required pursuant to reprosecution agree- ment with Government to fully disclose all inform- ation he possessed concerning drug activities, and thus, defendant's failure to disclose his part in such incident amounted to a substantial breach of agree- ment nullifying Government's promise not to pro- secute defendant, even though defendant was ac- quitted on charges arising out of alleged drug deal. * John M. Fitzgibbons, Asst. U.S. Any., Tampa, Fla., for plaintiff-appellant. Frank Regano, Tampa, Fla., for defendant- appellee. Appeal from the United States District Court for the Middle District of Florida. Before HILL and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge. PER CURIAM: This is an appeal from the government's unsuccess- ful attempt to prosecute Leon J. Wood, Ill for viol- ations of the Racketeer Influenced and Corrupt Or- ganizations Act, I8 U.S.C. § 1962(c) and (d). The United States District Court for the Middle District of Florida, adopting the magistrate's report and re- commendation, dismissed the indictment against Wood, concluding that a non-prosecution agree- ment entered into by the government and Wood barred the prosecution. We reverse. On May 20, 1983, while Wood was incarcerated at Florida's Lake Butler Correctional Facility for nar- cotics violations, he entered into a covenant with the government in which the government agreed not to prosecute Wood if he consented to *930 fully and truthfully disclose to law enforce- ment everything that he knows concerning offers to, or the actual bribery of any public official con- cerning any matter, about any other matter, includ- O 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. hups://web2.westlaw.com/print/printstrcam.aspx?sv=Split&prft=HTMLE&ifin—NotSet&mt... 6/8/2009 EFTA00182790 Page 3 of 5 780 F.2d 929 780 F.2d 929 (Cite as: 780 F.2d 929) ing drug importation and drug distribution conspir- acies now under investigation, and about any other matter as to which the Government may inquire and shall not at any time willfully fail to disclose any fact material to any such inquiry or matter. The agreement also provided that if Wood "should fail in any way to fulfill completely each and every one of his obligations, then the Government will be free from its obligations to Mr. Wood." Between May and December 1983, the FBI inter- viewed Wood on numerous occasions asking him about various matters relating to bribery attempts and drug trafficking. On January 12, 1984, Wood was arrested on narcotics charges for activities which allegedly took place in the Jacksonville area. lie was subsequently acquitted by a jury of those charges. In April, 1984, government agents in- formed Wood that he had breached the immunity agreement. After the parties met unsuccessfully to work out their differences, the government indicted Wood in the case currently pending before this court. An evidentiary hearing was held before a United States Magistrate on August 22, 1984. Sub- sequently, in a written report and recommendation, the magistrate concluded that the government failed to establish a "substantial breach of the specific terms of the agreement" and that Wood was entitled to "specific enforcement of the agreement." Magis- trate's Report and Recommendation at 6. The dis- trict court adopted the report on March 7, 1985 and subsequently dismissed the indictment. On appeal, the government first contends that the district court improperly applied a substantial com- pliance standard to Wood's obligations under the agreement instead of a strict compliance criterion. Second, it maintains that the district court's finding that Wood substantially complied with the contract is clearly erroneous. Because we agree with the lat- ter argument, we need not decide whether the dis- trict court erred by adopting a substantial compli- ance rule. Page 2 The government alleges that on numerous occa- sions Wood withheld information pertaining to bribery attempts or drug transactions until he was confronted with independent facts establishing that he actually had knowledge of the relevant incidents. For example, United States Attorney Joseph Magri testified at the hearing before the magistrate that the government learned that Wood had sold cocaine to John Tamargo but Wood did not admit to the sale until after Magri challenged this denial with facts derived from another source. Supplemental Record on Appeal, Vol. III at 209, 212. Also, the govern- ment contends that Wood initially told them that he had paid $50,000.00 to Angelo Bedami to have him bribe state officials in the Hillsborough County Sheriffs Office but that he asked for a return of the money. Subsequently, the government discovered that Wood had again furnished the money to Bed- ami and when they confronted him with that fact, he admitted that he did give the money to Bedami on a second occasion. Supplemental Record on Ap- peal, Vol. III at 135. The government urges that these incidents, along with numerous others, FM demonstrate a breach of the agreement. MI. Wood admitted at the hearing that he initially did not tell the government about the involvement of David Grimes in drug transactions because Grimes was "like a brother to him." Wood did tell the govern- ment about Grimes' drug activities in sub- sequent interviews. See Appendix to Ap- pellant's Brief at 193. In response, Wood simply claims that he eventually cured all of these alleged violations and that the district court's finding that he did not breach the agreement because of the corrections should be sustained. Even if we were to agree with this ex- planation, we must overturn the district court's de- cision because Wood breached the agreement by not disclosing the drug activities*931 leading up to his arrest in Jacksonville. Wood admitted at the hearing before the magistrate that he attempted to set up a drug deal with Robert O 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. htips://web2.westlaw.com/print/printstream.aspx?sv=Split8cprft=HTMLE&ifm=NotSet&mt... 6/8/2009 EFTA00182791 Page 4 of 5 780 F.2d 929 780 F.2d 929 (Cite as: 780 F.2d 929) Grogan in Jacksonville. Supp. Record on Appeal, Vol. II at 28, 34. He was arrested for these activit- ies and subsequently acquitted by a jury. lie testi- fied at his trial that he was acting as a quasi-law en- forcement officer attempting to set up Grogan and that he never intended to actually consummate the drug transaction. He reaffirmed this position in the hearing before the magistrate. Id. at 36. He also ad- mitted that he did not tell the government about these efforts. He testified as follows before the ma- gistrate: Q. You were engaged in an undercover operation on your own; is that your testimony? A. Yes, sir, I was. Q. And you had knowledge that other individuals were attempting to commit a crime involving a large amount of narcotics; isn't that correct? A. They were talking about it, yes, sir. Q. And you did not reveal that information to Agent Wooldrige? A. No, sir.... Id. Wood defends his failure to inform the government about the Jacksonville drug scheme on the ground that he was never asked about it. lie stated that he was only asked about drug activities in the Tampa Bay area and not in Jacksonville. Assuming the truth of that testimony, it is nonetheless clear that Wood breached the agreement by intentionally withholding the information. Wood described his obligations under the agreement: My understanding was that I would give informa- tion, tell them everything I knew about bribe at- tempts or drug importation and trafficking that was then under investigation or that I had knowledge of and in return I would not be prosecuted in any way by the federal government. (emphasis added). Page 3 Id. at 10. In light of this concession, Wood's explanation for his failure to tell the government about the drug activities in Jacksonville does not satisfy the re- quirements of his contract. Ile admitted that he knew about a possible drug deal and yet failed to disclose that information to the government pur- portedly because they did not specifically mention Jacksonville in their inquiry,'2 Under his own in- terpretation of his duties under the contract, however, he had a continuing obligation to reveal that information regardless of whether he was spe- cifically asked about it. In our view, this failure to disclose the Jacksonville drug activities, standing alone, constitutes a substantial breach of the con- tract. FN2. Wood also testified that he didn't tell the government about his dealings in Jack- sonville because he wanted to acquire all the information at one time and then "put everything in their lap for them." Other- wise he was afraid that the government "would have blown the whole case for me." Supp. Record on Appeal, Vol. II at 40. This reason does not excuse Woods' clear breach of the contract in light of the fact that he never came forward and told the government about the Jacksonville activities. The district court held that Wood's failure to tell the government agents of his Jacksonville activities did not amount to a substantial breach of the contract because the "matter was not under investigation at the time of the agreement, the Government did not make specific inquiry concerning the matter [and) the incidental references to possible police corrup- tion has [sic) been fully disclosed by Mr. Wood both at trial and thereafter. Mr. Wood was acquitted by a jury that must have found his testimony cred- ible in arriving at its conclusion." Record Excerpts at 110. The fact that the Jacksonville episode may not have been under investigation and that the gov- ernment may not have made specific inquiry about 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. https://web2.westlaw.corn/print/printstream.aspx?sv=Split&prft=HTMLE&ifm=NotSet&mt... 6/8/2009 EFTA00182792 Page 5 of 5 780 F.2d 929 780 F.2d 929 (Cite as: 780 F.2d 929) it does not justify Wood's failure to disclose his END OF DOCUMENT knowledge of the drug scheme in light of his admis- sion that he understood that he was required to fully disclose all information that he possessed concern- ing •932 drug activities.'" Furthermore, his ac- quittal on charges arising out of this course of con- duct is irrelevant to the issues here because Wood has admitted that he had knowledge of people at- tempting to engage in illegal drug pursuits. It is simply not germane that a jury believed Wood when he testified that his participation in those transactions was for a lawful purpose. FN3. Woods version of his obligations is consistent with the wording of the agree- ment and the government's understanding of the agreement. We hold that Wood's failure to disclose his part in the Jacksonville drug undertaking amounted to a substantial breach of the contract and the district court's finding to the contrary is clearly erroneous. Therefore, under the terms of the agreement, Wood's failure to comply with his obligations nulli- fies the government's promise not to prosecute him and the government is entitled to have the indict- ment reinstated."" FN4. Wood argues that it would be unfair to allow the government to use statements that he made after the time that the govern- ment considered the contract breached. This issue, however, relates to the admiss- ibility of those statements not to the ques- tion of whether Wood violated the agree- ment. We express no opinion as to the ad- missibility of any statements made by Wood either before or after the breach of the contract. REVERSED and REMANDED. C.A.I I (Fla.),1986. U.S. v. Wood 780 F.2d 929 O 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Page 4 haps://web2.westlaw.com/print/printstream.aspx?sv-Split&prft=HTMLE&ifm=NotSet&mt... 6/8/2009 EFTA00182793 Page 2 of 11 Westlaw. 162 F.3d 832 162 F.3d 832 (Cite as: 162 F.3d 832) C United States Court of Appeals, Fifth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Raymond CASTANEDA, Defendant-Appellant. No. 97-40307. Dec. 9, 1998. Defendant was convicted in the United States Dis- trict Court for the Southern District of Texas, Filemon B. Vela, .1., of Racketeer Influenced and Corrupt Organizations Act (RICO) conspiracy. De- fendant appealed. The Court of Appeals, Wiener, Circuit Judge, held that government failed to prove that defendant materially breached nonprosecution agreement providing defendant with transactional immunity. Reversed, sentence vacated, and remanded. West Headnotes III Criminal Law 4C=42.5(1) I I 0k42.5(1) Most Cited Cases (Formerly 110k42) 111 Criminal Law 4C=.42.5(3) 1101(42.5(3) Most Cited Cases (Formerly 1 I 0k42) Nonprosecution agreements, like plea bargains, are contractual in nature, and are therefore interpreted in accordance with general principles of contract law, under which if a defendant lives up to his end of the bargain, the government is bound to perform its promises, but if a defendant materially breaches his commitments under the agreement, the govern- ment can be released from its reciprocal obliga- tions. 121 Constitutional Law €=)4526 92k4526 Most Cited Cases (Formerly 92k257.5) When the govemment believes that a defendant has Page I breached the terms of a nonprosecution agreement and wishes to be relieved of performing its part of the bargain, due process prevents the government from making this determination and nullifying the agreement unilaterally. U.S.C.A. Const.Amend. 5. 131 Criminal Law 4C=042.5(3) 110k42.5(3) Most Cited Cases (Formerly I 1 Ok42) 131 Criminal Law €=.42.7(2) I I 0k42.7(2) Most Cited Cases (Formerly I I Ok42) When the government believes that a defendant has breached the terms of a nonprosecution agreement and wishes to be relieved of performing its part of the bargain, the government must prove to the court by a preponderance of the evidence that (I) the de- fendant breached the agreement, and (2) the breach is sufficiently material to warrant rescission. 141 Criminal Law £ 42.7(3) 110k42.7(3) Most Cited Cases (Formerly I 1 Ok42) If the pleadings show no factual dispute, the court may determine defendant's breach of terms of non- prosecution agreement as a matter of law. 151 Criminal Law (C=.1139 I I 0k1139 Most Cited Cases Where district court issued no factual findings, ap- pellate court would review defendant's claim of breach of a nonprosecution agreement de novo. 161 Criminal Law €=.42.5(3) I I0k42.5(3) Most Cited Cases (Formerly I 1 Ok42) Government failed to prove that defendant materi- ally breached nonprosecution agreement providing defendant with transactional immunity regarding his role in setting up "clients" with investigator in county attorney's office who would arrange to have criminal charges reduced or disappear, and thus government could not rescind agreement, although O 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. hups://web2.westlaw.com/print/printstream.aspx?sv=Split&prid=ia744d8520000012 1 c174E.. 6/8/2009 EFTA00182794 162 F.3d 832 162 F.3d 832 (Cite as: 162 F.3d 832) defendant omitted some information, where defend- ant provided volumes of both direct and indirect leads, and government failed to show that omis- sions were intentional or prejudicial to government. U.S.C.A. Const.Amend. 5. VII Criminal Law €=>42.5(3) I 10k42.5(3) Most Cited Cases (Formerly I 10k42) In determining the materiality of a breach in the context of nonprosecution agreements, if a party's nonperfonnance is innocent, does not thwart the purpose of the bargain, and is wholly dwarfed by that party's performance, the breaching party has substantially performed under the contract, and the non-breaching party is not entitled to rescission. *833 Michael R. Dreeben, Jonathan Goldman Ce- darbaurn, Jessie Acker Allen, U.S. Dept. of Justice, Washington, DC, Paula Camille Offenhauser, Asst. U.S. Any., Houston, TX, for Plaintiff-Appellee. Lawrence Irwin Zinn, San Antonio, TX, for De- fendant-Appellant. Appeal from the United States District Court for the Southern District of Texas. Before WISDOM, WIENER and DENNIS, Circuit Judges. WIENER, Circuit Judge: In this direct criminal appeal, defendant-appellant Raymond Castaneda challenges his conviction of RICO conspiracy under I8 U.S.C. § 1962(d), al- leging errors at both the indictment and trial stages of his case. Concluding that the district court erred in failing to dismiss Castaneda's indictment on the basis *834 of the government's unwarranted revoc- ation of its transactional immunity agreement, we reverse Castaneda's conviction, vacate his sentence, and remand for entry of a judgment of acquittal. FACTS AND PROCEEDINGS Castaneda owned an auto repair shop and towing service in Brownsville, Texas. From 1990 to 1994, Page 3 of 11 Page 2 William Weaver worked as an investigator in the Cameron County Attorney's Office in Browns- ville. During these years, Castaneda and Weaver conspired to solicit bribes from individuals accused of driving while intoxicated (DWI) in exchange for getting the charges dismissed or sentences re- duced. Castaneda's role in this conspiracy was that of middleman, referring "clients" to Weaver, arran- ging meetings, receiving payments, and suggesting strategics for accomplishing fixes. Weavers role on the other hand was that of principal, making the necessary arrangements within the County Attor- ney's Office to have the charges reduced or disap- pear. Suspecting corruption, the FBI began an investiga- tion of the County Attorney's Office. As part of this activity, Special Agent Jose Louis Cisneros sought Castaneda's cooperation. This, in turn, led AUSA Mervyn Milton Mosbacker and Castaneda to enter into an informal, written proffer agreement on January 24, 1995, pursuant to which Castaneda was granted use immunity. [FNI] Sometime later, AUSA Mosbacker and Castaneda entered into an- other agreement [FN2]-- this one oral--in which Castaneda was granted transactional immunity in exchange for his obligation to "tell everything he knew" about Weaver's criminal activity. [11‘13] FN I. According to the terms of this agree- ment, Castaneda was granted "use" but not "derivative use" immunity. In other words, the government promised not to use any of the information or statements provided by Castancda directly against him in any criminal proceeding, but reserved its right to pursue investigative leads derived from Castaneda's statements and use this "derivative" evidence against him. FN2. Although there is some question as to whether AUSA Mosbacker had the author- ity to grant Castaneda transactional im- munity, for the purposes of this appeal, the government dots not dispute the existence of a valid agreement. 4;:i 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print./printstream.aspx?sv=Split&prid=ia744d85200000121e 174f... 6/8/2009 EFTA00182795 162 F.3d 832 162 F.3d 832 (Cite as: 162 F.3d 832) FN3. Pursuant to this agreement, Castaneda also agreed to provide informa- tion about the illegal activities of Alex Perez, the Sheriff of Cameron County. On January 24, 1995 and again on November 17, 1995, Castaneda was questioned by Agent Cisneros and AUSA Mosbacker. In those interviews, Castaneda acknowledged that he had participated as Weaver's intermediary in several acts of bribery and extortion connected to the "fixing" of criminal prosecutions brought by the County Attorney's Of- fice. Castaneda identified a number of individuals who had knowledge of, or had been involved in, the scheme. These included (I) Jose Luis Reyes, [FN4] (2) Julio Gonzalez, [FN5] (3) Jeff Lewis, [FN6] (4) Chuy Hinojosa, [FN7] (5) Guadalupe Ba- rajas, [FN8] (6) Federico Morales, [FN9] (7) *835 Alejandro Cano, IFN 1 0] and (8) Mario Meliton Garcia. [FN II] FN4. Castaneda told the government that, in addition to Reyes's involvement in drug trafficking, he often paid large sums of cash to Sheriff Perez (presumably as polit- ical contributions). On many of these oc- casions, admitted Castaneda, he served as the conduit between Reyes and Perez. FN5. Castaneda told the government that he was approached by Julio Gonzalez in 1992 for assistance in getting his DWI case reduced. Gonzalez gave Castaneda $1,000 to pass on to Weaver as payment for the fix. Castaneda acknowledged keep- ing approximately $100 for himself. FN6. Castaneda advised the government that Gonzalez approached him on another occasion for assistance in getting dis- missed a DWI for Jeff Lewis. Castaneda was unsure if Weaver had ultimately been successful in fixing the case. FN7. Castaneda told the government that an individual known as "Chuy" Hinojosa Page 4 of 11 Page 3 had approached Weaver and given him an unknown amount of money. When Weaver was unable to fix the case, Hinojosa's money was returned. FN8. Castaneda told the government that Barajas--who was on probation and afraid she would fail a urine test--paid Weaver $6,000 to have the test fixed. FN9. Castaneda told the investigators that Morales was arrested for DWI and posses- sion of a firearm and that he paid Weaver $1,000 to get the case dismissed. Castaneda admitted that, although he did not receive any money directly from this transaction, Weaver paid him $1,000 on a separate occasion to "keep [him] happy." EN 1 0. Castaneda told the government that Cano paid Weaver $15,000 to fix a cocaine possession charge. When Weaver was un- able to get the case dismissed or reduced, the money was returned to Cano's family. FNI I. Castaneda informed the agents that Meliton Garcia paid Weaver $500 to get an assault charge dismissed or reduced. Out of that money, Castaneda admitted to hav- ing kept $50. On October 22, 1996--almost one year after the November, 1995 interview with Castaneda, and at the end of the grand jury's deliberations--the gov- ernment wrote to Castaneda advising that, because he had "failed to provide ... relevant and material information concerning criminal activities of which he was well aware," he had violated the transaction- al immunity agreement, so the government was re- voking its promise not to prosecute. The very next day, a grand jury returned a seven-count indictment [FN12] against Castaneda and Weaver. (EN13] FN12. Count One alleged a pattern of rack- eteering activity through predicate acts of bribery and extortion--the taking of pay- ® 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.corn/print/printstream.aspx?sv=Split&prid=ia744d85200000121e174f.. 6/8/2009 EFTA00182796 Page 5 of I I 162 F.3d 832 162 F.3d 832 (Cite as: 162 F.3d 832) tents for fixing DWI and marijuana pos- session prosecutions--in violation of 18 U.S.C. § 1962(c) (RICO). Count Two al- leged a conspiracy to engage in the same pattern of racketeering activity, in viola- tion of 18 U.S.C. § I962(d). Counts Three through Six alleged specific acts of extor- tion involving both defendants, in violation of 18 U.S.C. §§ 1951 and 1952 (Hobbs Act). Count Seven concerned an act of ex- tortion involving only Weaver. FN 1 3. Weaver pled guilty to the RICO substantive count, and his sentence was re- duced to approximately 17 months. The reduction of Weaver's sentence was contin- gent on his willingness to testify truthfully against Castaneda at trial. Castaneda filed two motions to dismiss the indict- ment, in one of which he argued that the govern- ment had breached its agreement not to prosecute. [FNI4] After an evidentiary hearing, the district court denied Castaneda's motion without reasons. FN I 4. In his other motion, Castaneda sought to have the indictment dismissed on the ground that the government had breached its proffer agreement by using his immunized testimony in the grand jury proceeding. The district court denied this motion but we do not reach it. Thereafter, Castaneda was convicted by a jury of RICO conspiracy. [FN 15] The district court entered judgment in accordance with the jury's ver- dict, and sentenced Castaneda to 33 months in pris- on, to be followed by a three year period of super- vised release, and a fine of $7,500.00. Castaneda appeals his conviction. [FN16] ENI5. The jury acquitted Castaneda of the RICO substantive count and the four Hobbs Act counts. The count on which Castaneda was convicted identified as pre- dicate acts five DWI cases that he and Page 4 Weaver conspired to fix. Named as the bribe-payors/extortion victims in these cases are Julio Gonzalez (a participant in two transactions--his own and that in- volving Maurice Middleton), Meliton Gar- cia, Rafael Gonzalez and Sammy Snod- grass (a participant in the transaction in- volving Jeff Lewis). Predicate Act Six-- referring to the dismissal of a marijuana charge for Silverio Garza-- pertained only to Weaver. FN I6. On appeal, Castaneda asserts four distinct errors that allegedly warrant the re- versal of his conviction. Because we con- clude that the government breached its transactional immunity agreement and that the district court erred in failing to dismiss Castaneda's indictment on this ground, we do not reach Castaneda's other three as- signments of error. ANALYSIS Castaneda argues that the district court should have granted his motion to dismiss the indictment be- cause the government breached its oral agreement not to prosecute. Implicit in this claim is the charge that the government failed to show by a pre- ponderance of the evidence that Castaneda materi- ally breached the immunity agreement, without which the government could not repudiate the con- tract and prosecute him. We agree. [1][2][3][4115] Nonprosecution agreements, like plea bargains, are contractual in nature, and are therefore interpreted in accordance with general principles of contract law. [EN17] Under these principles, if a defendant lives up to his end of the bargain, the government is bound *836 to perform its promises. [EN18] If a defendant "materially breaches" his commitments under the agreement, however, the government can be released from its reciprocal obligations. [FN I9] When the govern- ment believes that a defendant has breached the terms of a nonprosecution agreement and wishes to O 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. hups://web2.westlaw.condprint/printstream.aspx?sv=Split&prid=ia744d85200000121c174f... 6/8/2009 EFTA00182797 Page 6 of 11 162 F.3d 832 162 F.3d 832 (Cite as: 162 F.3d 832) be relieved of performing its part of the bargain- -here, refraining from prosecuting the defendant- -due process prevents the government from making this determination and nullifying the agreement unilaterally. [FINI20] Instead, the government must prove to the court by a preponderance [FlsI21] of the evidence that (I) the defendant breached the agreement, and (2) the breach is sufficiently materi- al to warrant rescission. [FN22] If the pleadings show no factual dispute, however, the court may determine breach as a matter of law. [F1423) Be- cause the district court issued no factual findings in this case, we review Castaneda's claim of breach of a nonprosecution agreement de novo. [FN241 FNI7. United States v. Moulder, 141 F.3d 568, 571 (5th Cir.1998); United Slates v. Rallis, 28 F.3d 1399, 1409 (5th Cir.1994); United States v. Fitch, 964 F.2d 571, 574 (6th Cir.1992); United Stales v. Brown, 801 F.2d 352, 354 (8th Cir.1986). F1418. United States v. Tilley, 964 F.2d 66, 70 (Id Cir.1992) FN19. Dallis, 28 F.3d at 1409; Tilley, 964 F.2d at 70; United States v. Crawford, 20 F.3d 933, 935 (8th Cir.1994). According to Castaneda, the government's sole remedy for his alleged breach would be prosecution for perjury, not rescission of the agreement. Castaneda claims that the government is limited to the remedies stated in the agreement. Because the oral agreement did not specifically contemplate prosecution for immunized crimes in the event he failed to provide full and truthful information, argues Castaneda, the govern- ment may not revoke its grant of transac- tional immunity. In support of this prn- position, Castaneda cites United States v. Fitch, 964 F.2d 571, 575 (6th Cir.1992). FN20. United Slates v. Verrusio, 803 F.2d 885, 888 (7th Cir.1986); United States v. Tenant, 730 F.Supp. 30, 32 Page 5 1990). FN21. United States v. Price, 95 F.3d 364, 367 (5th Cir.1996) (stating that, in determ- ining whether government's actions have breached terms of plea agreement, defend- ant bears burden of demonstrating underly- ing facts that establish breach by prepon- derance of evidence); United States v. Wil- lie, 25 F.3d 250, 262 (5th Cir.1994), affd, 515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (same); Tilley, 964 F.2d at 71 (holding that before government may re- voke agreement, it must show by a prepon- derance of evidence that the defendant has committed a substantial breach); United States t Packwood, 848 F.2d 1009, 1011 (9th Cir.1988) (same). We recognize, however, that not all courts have adopted this standard. See, e.g., United Slates v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.1987) (holding that government bears the burden of demon- strating by adequate evidence that there has been a substantial breach by defend- ant); State v. Rivest 106 Wis.2d 406, 316 N.W.2d 395, 398-99 (Wis.1982) (adopting a beyond a reasonable doubt standard); United States v. Skalsky, 616 F.Supp. 676, 681 (D.N.J.I985) (requiring proof of ma- terial breach by clear and convincing evid- ence). F1122. See Packwood, 848 F.2d at 1011; Tarrant, 730 F.Supp. at 32. F1423. Packwood, 848 F.2d at 1011; United Stales v. Calabrese, 645 F.2d 1379, 1390(10th Cir.I981). FN24. Moulder, 141 F.3d at 571; Price, 95 F.3d at 367; United States v. Laday, 56 F.3d 24, 26 (5th Cir.1995); Wittie, 25 F.3d at 262; United States v. Valencia, 985 F.2d 758, 760 (5th Cir.I993). The government argues that the appropri- C 2009 Thomson Reuters. No Claim to Orig. US Gov. Works. https://web2.westlaw.com/print/printstream.aspx?sv—Split&prid=ia744d85200000121c174f... 6/8/2009 EFTA00182798 Page 7 of 11 162 F.3d 832 162 F.3d 832 (Cite as: 162 F.3d 832) ate standard of review is clear error. See Linked States v. Gibson, 48 F.3d 876, 878 (5th Cir.1995); Balls, 28 F.3d at 1409. We agree that this is the appropriate stand- ard for reviewing a district court's findings as to the underlying facts that constitute breach. In the absence of such factual findings, however, we must conduct a de novo review of every aspect of Castaneda's purported breach. [6] In the instant case, the government promised not to prosecute Castaneda for his role in the bribery scheme in exchange for his full and truthful disclos- ure of information implicating Weaver. After deal- ing with Castaneda for more than a year, the gov- ernment rescinded this agreement at the eleventh hour, and Castaneda was indicted by the grand jury one day later. At a pretrial hearing on Castaneda's motion to dismiss his indictment, [FN25] the gov- ernment presented evidence purporting to show that Castaneda had *837 breached his end of the bargain by failing to reveal "relevant and material informa- tion ... of which he was well aware." [FN26] Because of these alleged omissions, con- tended the government, it was entitled to rescind the agreement and be relieved of its obligation not to prosecute. Castaneda countered that he gave the government considerable, accurate, and incriminat- ing information about Weaver, and that any omis- sions Castancda made were essentially inadvertent or duplicative and thus did not amount to a material breach of the agreement. [FN27] In so many words, he argued substantial performance. FN25. The government did not seek a judi- cial determination of breach until after Castaneda had been indicted, and Castaneda does not contend that a hearing had to have been held prior to this time. For the purposes of this opinion, therefore, we do not pass on the issue of when, dur- ing the progress of a criminal investiga- tion, a judicial determination of breach is required to comport with due process. See Page 6 Vernal°, 803 F.2d at 888- 89 (discussing whether defendant's indictment constituted a deprivation of his interest in the enforce- ment of a plea agreement, and whether he was entitled to a preindictment hearing to determine whether he had breached his ob- ligations under that agreement). FN26. All of the evidence presented at the pretrial hearing pertained to Castaneda's omission of information about illegal activities involving Weaver. It appears that the government introduced evidence in camera regarding Castaneda's alleged omissions about activities involving Sher- iff Alex Perez. It is not clear whether the court took this evidence into account when determining Castaneda's breach, and this evidence is not in the record on appeal. Although the government maintains its po- sition that Castaneda breached the nonpro- secution agreement with regards to both Weaver and Perez, the government has failed to cite any specific omissions in- volving Perez and has failed to see to it that its in camera inculpatory evidence is included in the record on appeal. FN27. Castaneda's lawyer--Ernesto Game; Jr.--wrote a letter to AUSA Mos- backer, dated December 12, 1996, in which he argued that Castaneda's inadvertent omission of some names does not amount to a lie. Forgetfulness, argued Gamez, is not the same as noncompliance. Further- more, Gamez contended, the government "either already possessed [the omitted names] or acquired this additional informa- tion from [Castaneda's] statements." In the letter, Gamcz noted that he had spoken with Agent Cisneros on several occasions, and that he had been led to believe that the government was fully satisfied with the in- formation provided by Castancda. Gamez also claimed that Agent Cis