(USAFLS)

(USAFLS) From: Roy Black < Sent: Wednesda , Februa 11, 2015 8:50 AM To: (USAFLS) Subject: RE: Your phone call Great. Speak to you then. Original Message From: (USAFLS) Imailt Sent: Wednesday, February 11, 2015 8:49 AM To: Roy Black Subject: Re: Your phone call Hi Roy. Thanks for your message. Dexter wants to participate in the call so it is helpful to have a roadmap of the discussion points. We will call your office at 2:00. If there is a better number to call, just shoot me an email. Talk to you soon. Assistant U.S. Attorney Southern District of Florida 500 S. Australian Ave, Ste 400 West Palm Beach, FL 33401 On Feb 10, 2015, at 7:35 PM, "Roy Black" < mailto: wrote: Marie I was not calling you about the correspondence so don't worry about that. I called you to discuss the plaintiff's replies filed as dockets 310 and 311. We think there are serious misstatements by them in these pleadings. So I just wanted to let you know what our suggested responses are. I have decided to summarize them here because it is easier than going through it on the phone and I assume you need to discuss this with dexter. JD 3 is willing to sign any affidavit put before her and it is hard to stomach. Whenever they have a problem they just have her file a new affidavit. I admit I am steamed and biased about this because of the trashing of alan's reputation. This makes me sick. I don't mind defending almost any accusation but gratuitously destroying a man like alan is going beyond any ethical boundaries. How about if I call you at 2 tomorrow? 1. The CVRA case is a Complaint about whether certain statutory rights were violated by the Govt. The Govt not JE is the defendant. Whether JD 3 or JD 4 are or are not victims is not the test of whether they are proper petitioners: they also must allege a basis for the allegations that their rights to consultation and notification were violated. JD 4 was not even known to the Govt: by definition how could she have been notified or consulted? JD 3 informed the Govt in 2007 that she did not want to be contacted or "bothered" again, DKT 304.1. The FBI case agent participated in the conversation. The FBI provided JD 3 with their contact information. She did not contact the FBI or L./SAO again seeking to assert her rights as a crime victim until 4 years later. Again, by definition, she rejected rights to consultation and notification in this conversation with the Government and in her subsequent decision to avoid any involvement with the FBI until she was again interviewed in 2011; EFTA00188608 EFTA00188609 2. JD 3 was not a minor during the critical time periods. She was 23 when interviewed by the FBI in 2007. She was 25 when she received a specific notification in September of 2008 (Dkt 290-1) that the federal investigation of JE had concluded with a state plea and sentence (this was only 2 months after the sentence and the beginning of state incarceration). Rather than contesting the resolution that the USAO reached with JE in a timely manner, she exploited it by suing JE as Jane Doe 102 and reaching a favorable financial settlement by taking advantage of the attorney representative and the waiver of liability provisions of the NPA. By the time of her lawsuit in early 2009, the NPA had been unsealed, was in the possession of her counsel, was mentioned in her lawsuit, and yet she did nothing for 5 years (other than receiving a monetary settlement) to pursue her alleged grievances in court; 3. The Complaint by JD 3 (then Jane Doe 102 as stipulated to by her counsel in Dkt 311 at 4) made all of the same factual allegations as she makes in 2014 and, importantly, in par 32, states that following an investigation by the FBI and USAO JE pled guilty to state offenses. . She had all the information available to her in early 2009 that she needed to contest the NPA and pleas of guilty if she so chose; 4. Judge Marra himself said "there is no logical reason to treat anon-prosecution agreement' which the government employs to dispose of contemplated federal charges any different from a 'plea agreement' employed to dispose of charged offenses in interpreting remedies available under the CVRA. Where the statute expressly contemplates that a 'plea' may be set aside if entered in violation of CVRA conferral rights, it necessary contemplates that a 'non• prosecution' agreement may be set aside if entered in violation of the government's conferral obligations", Dkt 189 at 9. In short, the law of the case dictates that the test for whether the Motion to Join is timely is the test that would apply to efforts to rescind a plea and sentence. 5. The proper test of the timing of the Motion to Join (or any later Complaint) is found within 18 USC 3771(d)(5) styled "Limitation of Relief" where a crime victim may make a motion to re-open a plea or sentence only if "the victim has asserted the right to be heard before or during the proceeding at issue ..". This provision is enacted to prevent delay and its concomitant prejudice to a defendant who is serving a sentence that the "victim" wishes to re-open or challenge. By delaying her attempt to re-open the NPA (which is not only analogous to a "plea and sentence" but expressly incorporates the imperative of JE pleading guilty in state court) JD 3 waived her right to contest the NPA; 6. JD 3 seeks to rescind the NPA (See Dkt 311 at 7). She therefore seeks to rescind the plea and state sentence. These were fully served during the very time she sought monetary benefits by delaying joining the ongoing CVRA case. Judge Marra found that the delay in proceeding on an expedited basis as to JD 1 and 2 was attributable to their prioritizing their monetary lawsuit, DKT 189 at 5 (finding that for 18 months the CVRA stalled as the petitioners pursued their collateral lawsuits against JE). These delays also contradicted a second statutory mandate - that district courts "decide any motion asserting a victim's rights forthwith" with a limit on continuances of 5 days and a short period to appeal adverse decisions, 18 USC 3771(d)(3). The entire statutory scheme is to avoid delay in part to vindicate claimed rights, in part to prevent a rescission or re-opening after the defendant has suffered the full prejudice of serving his sentence as JE has here. (See DKT 290 at 2-4) 7. The SOL is not the test for whether the Govt and JE has been prejudiced by delay. SOL are procedural which is why they can be extended after the date when the alleged offense occurred (if they were substantive, such an extension would constitute an ex post facto violation of a defendant's rights). If civil procedure is being used for purposes of broadening discovery (See Dkt 310 at 5), then the civil SOL should apply. The criminal SOL has nothing to do with the CVRA. Under the Petitioners theory, Jane Doe 3 could wait until she is 60 or 70 years old to bring the CVRA complaint (Dkt 311 at 9). 2 EFTA00188610 EFTA00188611 8. Jane Doe 3's residing in did not prevent her from joining the CVRA case. The case was widely reported in the media as was the NPA (DKT 290 at 7 fn 7 where Govt identifies an internet search that would have disclosed the CVRA as of July of 2008). She herself gave media interviews as early as 2011. She was not too frightened to go on the offensive with . She was never threatened. She could easily have asked to join the CVRA complaint as a "victim" living' ' but chose not to. (Dkt 311 at 11) 9. Jane Doe 3 claims she did not learn the specifics of the CVRA until 2014 (Dkt 311 at 11) but she knew about the NPA - which was made public and discussed by the media and was the basis of her 2009 lawsuit, she knew by her receipt of a letter from the USAO dated 9-3-08 that JE had pled guilty and was sentenced and that the USAO had "agreed to defer federal prosecution in favor of this state plea and sentence", Dkt 290 at 4, Dkt 290-1, she knew as of 9.3.08 that there was ongoing litigation involving two other victims (Dkt 290.1, Dkt 311 at 12), and she was making herself publicly available by giving interviews to the and to Edwards and Scarola in 2011. She was an adult in 2008 (25) and 2011 (28). She has a responsibility to join the lawsuit prior to the completion of JE sentence. Principles of !aches should estop this long delayed effort to rescind the very agreement that she benefited from via her earlier 2255 lawsuit. From: . (USAFIS) (mailto Sent: Tuesday, February 10, 2015 3:37 PM To: Roy Black Subject: Your phone call Hi Roy - I have been trying again to get an answer to your question from weeks ago about the correspondence before I called you back. I still do not have an answer. Why don't we set up a time tomorrow to talk, and hopefully I will have an answer by then. I am free any time before 4:30. Thanks. Assistant U.S. Attorney 500 S. Australian Ave, Suite 400 West Palm Beach, FL 33401 3 EFTA00188612 EFTA00188613 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 1 of 21 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 9:08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 UNITED STATES JANE DOE NO. 1 AND JANE DOE NO. 2'S PROTECTIVE MOTION PURSUANT TO RULE 15 TO AMEND THEIR PETITION TO CONFORM TO EXISTING EVIDENCE AND TO ADD JANE DOE NO. 3 AND JANE DOE NO. 4 AS PETITIONERS COME NOW Jane Doe No. I and Jane Doe No. 2 (the "current victims"), by and through undersigned counsel, to file this protective motion pursuant to Federal Rule of Civil Procedure I 5(aX2) to amend the petition that they have filed in this case. The amendment would (I) conform their petition to the evidence in the case and (2) add Jane Doe No. 3 and Jane Doe No. 4 (the "new victims") as petitioners. This motion is a "protective" motion because it may be unnecessary. With regard to amending to conform to the evidence, the current victims believe that their existing petition is broad enough to cover the developing evidence in this case. But the petition was filed on July 7. 2008, before the Government had even disclosed the existence of the non-prosecution agreement (NPA) in this case. The petition, accordingly, does not specifically discuss the Government's concealment of the NPA. To conform to that important fact in this case, it appears desirable to amend the petition to address the NPA. With regard to amending to add new victims, the Government has argued that Rule 15 (addressing amending pleadings) rather than Rule 21 (addressing joinder of parties) is the applicable rule. While the victims have contested that view in their concurrently-filed Rule 21 EFTA00188614 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 2 of 21 reply brief, out of an abundance of caution, they explain here why a Rule IS motion to amend should be granted. In addition. Rule 15(c)(I) allows an amended pleading to "relate back" to the date of an initial pleading, provided that the amendment asserts a claim "that arose out of the conduct, transaction or occurrence set out . . . in the original pleading." Because the original petition in this case alleged that the Government violated the rights of all the girls who were Jeffrey Epstein's victims, the proposed amendment in this case would relate back to the date the petition was filed: July 7, 2008. This relation back eliminates any statute of limitations or other timelessness concerns. FACTUAL BACKGROUND On July 7. 2008, Jane Doe No. I filed a petition under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771. See DE I. She sought to enforce both her CVRA rights — and the rights of other victims. As the Court is aware, when Jane Doe No. I filed her initial petition in this action, it was unclear whether the Government had even reached a plea arrangement with Jeffrey Epstein and, if so, what crimes were covered. Accordingly, the petition generally alleged that. "[u]pon infomiation and belief, [Epstein] is engaged in plea negotiations with the Office of the United States Attorney for the Southern District of Florida concerning federal crimes he is alleged to have committed against minor children, including Petitioner." DE I at 1-2 (emphasis added).' Jane Doe No. l's petition went on to quite specifically allege that the Government was violating not only her rights but the rights of other similarly-situated victims: "On information and belief, roughly the same crimes were committed [by Epstein] against several other young females. These victims, too, are in danger of losing their right to colter under the CVRA." DE I at 7 n.2 (emphasis added). I Obviously, at that point Jane Doe No. 1 did not know that the Government and Epstein had secretly concluded a non-prosecution deal some nine months earlier, in about October 2007. 2 EFTA00188615 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 3 of 21 The Government filed a response to the petition, and then Jane Doc No. I filed a reply in support of her petition. By this time, counsel for Jane Doe No. I had heard about the NPA, but had not seen the agreement. Once again. Jane Doe No. 1's pleading very directly mentioned other victims, alleging: "This deferred prosecution agreement was reached without conferral with [Jane Doe No. 1] — or, indeed, with the many other young victims of [Epstein's] crimes." DE 9 at I (emphasis added). The reply went on to explain that the agreement "remarkably allowed the defendant — a billionaire with extraordinary political connections — to escape all federal prosecutions for dozens of serious federal sex offenses against minors." Id. at 1-2. The reply explained the relief sought, specifically that "[t]he Court should therefore declare the proposed non-prosecution agreement an illegal one, since it was reached in violation of the CVRA, and order the Government to confer with Petitioner and the other victims in this matter before reaching any disposition in this case." Id. at 2 (emphasis added). The reply asked the Court to "hold that [Jane Doe No. 1] and the other victims in this case had the right to confer with the Government before it reached its non-prosecution agreement." Id. at 8 (emphasis added); see also id. (the Government kept Jane Doe No. I "and the many other victims of [Epstein's] federal sex offenses . . . in the dark about the fact that the Government was planning to reach a deal ... ."); id. at 10 (the Government did not use "its `best efforts' to protect the rights of [Jane Doe No. I] (and the other victims) in this case when it failed to confer with her about the non-prosecution agreement"). Jane Doe No. I asked for the "obvious remedy" that would involve all the victims — i.e., that the court "declare the non-prosecution agreement illegal and direct that the Government proceed to negotiate a new agreement . . . in a process that respects [Jane Doc No. I's] (and the other victims) rights." Id. at 12 (emphasis added). EFTA00188616 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 4 of 21 The Court rapidly held a hearing. During that hearing, the Government agreed to add Jane Doe No. 2 into the case as a second petitioner. Counsel for Jane Doe No. I and No. 2 also began learning about broad outlines of the NPA the hearing. See DE 15 (tr. July 11, 2008) at 24 (court notes that victims' counsel "learned today . . . that the agreement was signed . . . in October"). As the case proceeded in the following months, the Court ordered the Government to produce the NPA to the victims (DE 26) and to attempt to reach a stipulated set of facts. Over the next several years, the Government took conflicting positions on whether it would stipulate to facts, ultimately refusing to stipulate to anything. See generally DE 225-I at 2-4. Unable to obtain any stipulations. Jane Doe No. 1 and Jane Doe No. 2 filed a detailed summary judgment motion (DE 48). This motion relied in large measure on the Government's and Epstein's joint decision to conceal the NPA from the victims. See, e.g., DE 48 at 10 (noting that "the U.S. Attorney's Office put itself in a position that conferring with the crime victims (including Jane Doe #1 and Jane Doe #2) about the non-prosecution agreement would violate the terms of the agreement"). In addition to discussing the situation of the two petitioners, the motion also raised very specific allegations about Jane Doe No. 3, i.e., that "Jeffrey Epstein flew at least one underage girl on his private jet for the purpose of forcing her to have sex with him and others. Epstein forced this underage girl to be sexually exploited by his adult male peers, including royalty, politicians, businessmen, and professional and personal acquaintances." DE 48 at 4 (citing complaint filed on behalf of Jane Doe No. 3, identified as "Jane Doe No. 102"). The Court ultimately denied the victims' motion for judgment on the pleadings, but allowed the case to move forward. DE 99. The victims then filed discovery requests. As the 4 EFTA00188617 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 5 of 21 Court is aware, discovery issues arc currently pending before the Court. The Government has not yet fully answered the victims' discovery requests. On December 30, 2014, two new victims filed a motion to join this case, pursuant to Fed. R. Civ. P. 21. DE 280. The Government objected to this motion. DE 290. One of the arguments that the Government made in its response was that the proper vehicle for adding new parties into this case is not a motion for joinder, but rather a motion to amend pleadings under Fed. R. Civ. P. IS. DE 290 at 2.2 The Government then argued that the Court should deny the current victims leave to amend. Id. In a concurrently-filed reply brief regarding the Rule 21 motion, the victims have replied to Government, arguing that Rule 21 is the proper vehicle for adding new panics to this case. But because of the Government's assertion that Rule 15 is the proper vehicle for adding parties, the current victims have filed this protective motion to amend under Rule 15.3 I. JANE DOE NO. I AND JANE DOE NO. 2 SHOULD BE ALLOWED TO AMEND THEIR CVRA ENFORCEMENT PETITION TO CONFORM TO THE EVIDENCE IN THIS CASE. Given the way this case has proceeded, the current petition before the Court does not conform to the evidence that has developed. Indeed, the current petition does not even mention the NPA — which is central to this case — for the simple reason that the Government (and Epstein) had concealed the existence of the NPA at the time the petition was drafted. 2 Although he has not yet been allowed to intervene, putative intervenor Alan Dershowitz also has argued that Rule 15 is appropriate vehicle for the new victims to seek to join the CVRA case. See DE 282 at 2. 3 To be clear, in conformance with Rule I5(a)(2), this motion to amend is technically filed by the two current victims — Jane Doe No. I and No. 2. However, Jane Doe No. 3 and No. 4 have requested the filing of this motion. In that sense, this motion is brought on behalf of all four victims. As indicated in their motion for joinder, all four victims (represented by the same legal counsel) intend to coordinate efforts and avoid duplicative pleadings. 5 EFTA00188618 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 6 of 21 In such circumstances, it is entirely appropriate for Jane Doe No. I and Jane Doe No. 2 now seek to amend their petition to conform to the current state of the case. Of course "th I lin. in:ktantariTZ MUM iTarMiff, tiTi • fir I mital kt.atvi I 11 m' um • WWI ItI77WeffiratalatMeiMillfl741WIANINIMMIOnasirmiturromma I5(a)(2) of the Federal Rules of Civil Procedure specifically allows an amendment, providin that a party may amend its pleading "with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." (emphasis added). For reasons that remain unclear to the current victims, the Government has declined to give its consent even to a basic amendment of the petition. Accordingly, the current victims seek leave of court to make such an amendment. The text of Rule 15 itself reflects a liberal attitude towards amendment, starting with the clear direction that the court "should freely give leave when justice so requires." The Supreme Court has admonished that "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, [she] ought to be afforded an opportunity to test [her] claim on the merits." Fomani. M, 371 U.S. 178, 182 (1962). The policy in favor of amendment "is to be applied with extreme liberality." C.F. ex rel. Farnanl. Capistrano Unified Sch. Dist., 654 F.3d 975, 985 (9th Cir.20I1) (emphasis added). The Government can have no good reason for opposing a basic amendment. If we understand the Government's objection correctly, it does not deny that the proposed amendment conforms to the evidence that the victims have developed in this case. Instead, the Government apparently believes that the current victims should have filed a motion sooner. But "delay, by itself. is insufficient to justify denial of leave to amend." DCD Programs. Ltd.l. Leighton, 833 6 EFTA00188619 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 7 of 21 F.2d 183, 186 (9th Cir. 1987). And the Government has clearly long been on notice that issues surrounding the NPA are at the heart of this case. District courts "should freely allow an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits." Developers Sur. & lndem. Co.'. Bi-Tech Const., Inc., 979 F. Supp. 2d 1307, 1320 (S.D. Fla. 2013); see, e.g., Baker. Firestone Tire & Rubber Co., 793 F.2d 1196 (11th Cir.1986) (Fed.R.Civ.P. I5(b) instructs district courts to grant leave to conform the pleadings to the evidence freely, provided no prejudice to the defendant is shown). The current victims should be allowed to amend their petition to conform to the way the case has proceeded. The Government cannot credibly claim that it is unaware that its concealment of the NPA is at issue here. For example, as long ago as April 8, 2011, the Government filed a pleading in which it defended its decision to conceal the NPA. See DE 62 at 42 (". . . there also was a possibility that Epstein would not perform the NPA. A determination was made to cease notifications . . . .). And as the Court knows, the parties have briefed at length the issue of whether rescission of the NPA is a possible remedy in this case. See DE 119, 127, and 147. In rejecting the Government's argument, the Court said ItJhe petitioners in this action seek to vacate a 'non-prosecution agreement' ('the agreement') between the United States Attorney's Office for the Southern District of Florida . .. and Jeffrey Epstein . . .." DE 189 at I. ,The Court went on to rule for the victims on the rescission issue. explaining that "in their petition and supplemental pleadings, Jane Doe I and 2 have identified a remedy which is likely to redress the injury complained of— the setting aside of the non-prosecution agreement as a prelude to the full unfettered exercise of their conferral rights at a time that will enable the victims to exercise those 7 EFTA00188620 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 8 of 21 rights meaningfully." Id. at 8. Clearly, the Government is not harmed from an amendment conforming to these rulings. A proposed first amended petition (previously provided to the Government) is attached to this pleading.4 II. JANE DOE NO. I AND JANE DOE NO. 2 SHOULD BE ALLOWED TO AMEND THEIR PETITION TO ADD JANE DOE NO. 3 AND JANE DOE NO. 4 INTO THIS CASE. The current victims — Jane Doe No. 1 and Jane Doe No. 2 — should also be allowed to amend their petition to include two new parties as petitioners — Jane Doe No. 3 and Jane Doe No. 4. The current victims continue to believe that Rule 21 is the proper vehicle for joining new parties into the existing CVRA action. To protect their rights, however. Jane Doe No. I and Jane Doe No. 2 now file this protective motion for leave to amend to add two new parties under Rule I5(a)(2). Leave to amend should be granted because the interests of justice will be served by allowing these parallel claims of two additional victims to be litigated on the merits in a single action. There has been no undue delay, and the amendment "relates back" to the original filing date, obviating any statute of limitations or other timeliness concern. A. Leave to Amend to Include New Plaintiffs Should be Freely Given. As discussed above, courts freely grant leave to amend, because cases should be tried on their merits rather than the technicalities of pleadings. See, e.g., Jet, Inc.'. Sewage Aeration Sys., 165 F.3d 419. 425 (6th Cir. 1999). This already-liberal policy is applied even more generously when the proposed amendment simply adds new plaintiffs, because prejudice to the other party is less likely to result from adding additional plaintiffs than from adding new 4 The proposed amended petition contains nine words in it referring to Jane Doe No. 3 and Jane Doe No. 4. As argued in the next section of this pleading, Jane Doe No. I and Jane Doe No. 2 believe that the two new victims should be added into this case. If the Court disagrees with this argument, then it should allow the amended pleading without those nine words in it. 8 EFTA00188621 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 9 of 21 defendants or new claims. See King'. Cessna Aircraft Co.. 2010 WL 5253526, at *10 (S.D. Fla. 2010). Courts have frequently allowed plaintiffs to amend their pleading to add new plaintiffs. See. e.g.. Joshlin Gannett River States Pub. Corp., 152 F.R.D. 577 (E.D. Ark. 1993) (amendment to name all purported class members as plaintiffs); Otto'. Milwaukee C'nty., No. 07-C-427, 2007 WL 3228118, at '2 (E.D. Wis. Oct. 30, 2007) (additional plaintiffs allowed); Grand Lodge of Pennsylvania' Peters, 560 F. Supp. 2d 1270, 1274 (M.D. Fla. 2008) (Eleventh Circuit Court test satisfied, additional plaintiffs allowed). And the Government appears to concede that a proper procedure vehicle for the victims to pursue is a motion to amend. See DE 290 at 2. B. There Has Been No "Undue Delay" In Seeking to Amend. In their parallel filing under Rule 21, the current victims have provided numerous reasons why participation by the new victims is desirable in this case. The Government does not appear to contest these reasons. Instead of dealing with the substance of the issue, the Government argues the victims have "unduly delayed" filing their motion to amend. Of course, "undue" delay requires some reference to some time when the new victims' claims were, in fact, due. As discussed in the victims' contemporaneously-filed reply regarding Rule 21. the statute of limitations for the crimes against minors at issue here has not yet expired. See 18 U.S.C. § 3283. And Congress has not seen fit to set a more restrictive time limit for victims to file CVRA enforcement actions, either in the CVRA itself or in civil statutes of limitations. Assessed tinder these congressional decisions, the motion to amend has not been unduly delayed. Even more important, this Court has not yet set a time limit for adding new parties to this case. The Court would ordinarily establish such a limit as part of a Rule 16 Scheduling 9 EFTA00188622 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 10 of 21 Conference. See Local Rule 16.1 (a Joint Proposed Scheduling shall contain "[a] limitation of the time to join additional parties and to amend the pleadings"). In this case. Jane Doe No. I and Jane Doe No. 2 have tried to comply with the civil rules by, for example, providing their initial disclosures to the Government pursuant to Fed. R. Civ. P. 26(aXI). The Government, however, has not even taken that limited step to move the case forward. The Eleventh Circuit has highlighted the importance of scheduling orders in considering motions to amend. It has cautioning against "render[ing] scheduling orders meaningless" by granting leave to amend freely after a scheduling order deadline has passed. See. e.g., Soso Airprini Sys., Inc., 133 F.3d 1417, 1419 (I 1th Cir. 1998). But the converse must be true as well: It would likewise render scheduling orders meaningless if a party was denied a chance to freely add additional parties before a scheduling order deadline has passed — particularly where the Government has not sought entry of such a scheduling order and has refused to make its initial disclosures required by the civil rules. In the absence of any court-imposed time limit to add parties. it is hard to understand how the Government can argue that "undue" delay exists. In assessing whether delay is or is not "undue," the Court should also consider the state to which the case has progressed. Of prime importance is the ability of a party to conduct necessary discovery. See, e.g.. °kohl Vill. of Willowbrook 138 F. Supp. 2d 1036, 1046 (N.D. III. 2000) ("The addition of a new party plaintiff can cause undue prejudice . . . where the proposed amendment does not afford defendant adequate time for discovery"). Where there is no evidence of prejudice due to lack of time for discovery, an amendment adding new parties should be freely granted. M. At this juncture. the Government has not yet even produced all of the discovery that the Court has ordered it to produce. Moreover, the Government can clearly 10 EFTA00188623 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 11 of 21 pursue whatever discovery it needs to defend its position. (In its pleading, the Government does not claim that it needs any discovery). The Government suffers no harm from the amendment. In addition. the new victims have not unduly delayed in seeking to join this action. With regard to Jane Doe No. 3, the Government's lead argument is the claim that "petitioners' counsel have been representing [Jane Doe No. 3] since at least as early as March 2011, yet they have waited more than three years to attempt to add her as a party." DE 290 at 8. This unsupported allegation is simply false. See Aff. of Jane Doe No. 3 at 7, Exhibit I to Victims' Reply in Support of Motion for Joinder (hereinafter "Jane Doe No. 3 Aff.") (responding to Government's claim of legal representation and attesting "[t]his is completely untrue, and I think the Government knows it is untrue. I was not represented by legal counsel in March 2011"). Undersigned counsel began representing Jane Doe No. 3 (pro bono) in around April 2014 and then contacted the Government over the summer about possibly adding her into the case. As recounted at greater length in an earlier pleading, counsel moved to add Jane Doe No. 3 into this case within seven days of receiving the Government's objection to her motion for joinder. See DE 291 at 5-6. More important, Jane Doe No. 3 had good reason for not seeking to join this case until this past summer. As discussed in the Rule 21 reply brief, she was specifically in from 2002 to 2013. Critically, Jane Doe No. 3 was hiding from Epstein. See Jane Doe No. 3 Aft. at 3. Her decision to live away from family and friends was not voluntary. Id. And living in kept her from learning about how this CVRA action worked. Id. at 5-7. Jane Doe No. 3 did not learn about the specifics of this action — and thus the ability to enforce her rights — until 2014, see id. at 8, and she acted promptly at that point to obtain legal counsel and join this case. II EFTA00188624 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 12 of 21 With regard to Jane Doe No. 4. she filed her motion to join the case when she felt it was safe and appropriate to do so. Given the fact that sexual assault victims all have different reactions to the crimes committed against them. the Court should not conclude that she has unduly delayed. In crafting its argument about undue delay, the Government relies heavily on a letter sent to Jane Doe No. 3 on September 3, 2008. See DE 290-I. As Jane Doe No. 3 explains in her affidavit, that letter did not directly say that Epstein's crimes against her were not going to be prosecuted. Instead, it said elliptically that "the United States has agreed to defer federal prosecution in favor of this state plea and sentence." Jane Doe No. 3 "did not know what that meant." Jane Doe No. 3 Aff. at 5. Significantly with regard to this CVRA litigation, the Government did not tell her (and other victims) that litigation was underway trying to invalidate the NPA. Instead, the Government misleadingly stated that "[t]here has been litigation between the United States and two other victims regarding the disclosure of the entire agreement between the United States and Mr. Epstein." DE 290-I at 3 (emphasis added). This description of the litigation is, in the victims' view, quite deceptive. Of course, the point of the litigation was not to obtain the NPA's "disclosure" but rather the NPA's invalidation. Jane Doe No. 3 attests in her affidavit that luinderstanding more about that case now, I realize that the letter did not explain that the real purpose of that litigation was not to get 'disclosure of the entire agreement' but instead to get criminal charges filed against Epstein. I wish that the Government had told me that was what was really going on." Jane Doe No. 3 Aff. at 5-6. Compounding the confusion that the Government created through its letter, in 2011 FBI agents traveled to Sydney to interview Jane Doe No. 3. During that interview, they discussed her sexual abuse in Florida, giving the impression that criminal charges could still be brought in 12 EFTA00188625 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 13 of 21 Florida. The Government does not contend that it made clear to Jane Doe No. 3 during that interview that the NPA barred prosecutions in Florida. And Jane Doe No. 3 has flatly declared that "I was not told even at this point [in 2011] that [Epstein] could not be prosecuted for the crimes he committed in Florida." Jane Doe No. 3 Aff. at 7. As a result, she left that meeting with the entirely reasonable impression that prosecuting Epstein in Florida was a real possibility. Id. In light of all these facts, Jane Doe No. 3 and Jane Doe No. 4 did not unduly delay in seeking to join this case. But finally, the motion to amend is being filed by Jane Doe No. I and Jane Doe No. 2. It was difficult for them to work with Jane Doe No. 3 until her recent return to the United States. They did not unduly delay in filing their amendment by waiting until Jane Doe No. 3's return to this country. C. The Amended Pleading is Timely Because It "Relates Back" to the Filing of the Initial Pleading in 2008. The Government's main objection to any amended pleading containing new panics appears to be that it would be "futile." The Government argues that such an amendment is barred by the six-year statute of limitations governing tort claims against the Government. See DE 290 at 8 (citing 28 U.S.C. § 240I(a)). In their contemporaneously-filed pleading on joinder. the victims have explained that the Government is simply wrong to assert that the limitation found in § 240I(a) applies to this case — specifically because this is not a "civil action" against the Government and (with regard to Jane Doe No. 3) the tolling provision applies! But even if the limitation did apply, that would hardly make the victims' proposed 3 The victims specifically adopt and incorporate by reference all their arguments against applying § 2401(a) to this case into this pleading as well. 13 EFTA00188626 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 14 of 21 amendment futile. The amendment here would "relate back" to the original petition, filed six- and-a-half years earlier, thereby satisfying any applicable statute of limitations. Relation back is a concept specifically adopted in Fed. R. Civ. P. I 5(c)( I )(B). Under that rule, an amended pleading "relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out — or attempted to be set out — in the original pleading ...." Relation back typically refers to adding new defendants to a case; nevertheless. the 1966 Amendment to Rule I5(c) confirms that relation back also "extends by analogy to amendments changing plaintiffs." Fed. R. Civ. P. 15, Adv. Comm. Notes, 1966 Amend. According to the Advisory Committee, the new version of Rule I5(c) did not include express language about adding plaintiffs because that "problem is generally easier" than adding defendants. Fed. R. Civ. P. 15. Circuit Courts have applied varying tests for articulating how to determine when an amendment relates back to the filing of the original pleading. In the Eleventh Circuit, the test for relation back has been generally understood as requiring the court to consider "(I) whether the amended claim arose out of the same conduct, transaction, or occurrence as the original pleading; (2) whether the amendment will unduly prejudice the defendant; and (3) whether the original (pleading) provided adequate notice of the new plaintiff." See King Cessna Aircrctil Co.. 2010 WL 5253526, at *10 (S.D. Fla. 2010) (magistrate judge recommendation), adopted in relevant part, 2010 WL 5173152 (S.D. Fla. 2010); Grand Lodge of Pennsylvania, 560 F. Supp. 2d 1270, 1274 (M.D. Fla. 2008). This victims' motion to amend satisfies all three requirements of the Eleventh Circuit's test for relation back. 14 EFTA00188627 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 15 of 21 I. The Proposed Amendment Arises Out of the Same Conduct as the Original Petition. First, the claims of Jane Doe No. 3 and Jane Doe No. 4 arise out of the same operative facts as the original plaintiffs. In particular, both Jane Doe No. 3 and Jane Doe No. 4 challenge the same secret agreement — i.e., the NPA that the Government executed with Epstein and then concealed from the victims. This is made clear by the proposed amendment itself, in which all four victims simply allege the same general facts. 2. The Government Is Not Unduly Prejudiced by the Amendment. Second, allowing the addition of two plaintiffs from the originally alleged victim class will not unduly prejudice the Government. Various district courts define prejudice with regards to relation back in terms of lost evidence due to the passage of time or inadequate time for discovery. See Oslo I. Milwaukee Cnty.. 2007 WL 3228118. at *2 (E.D. Wis. 2007) (no evidence of prejudice; additional plaintiffs allowed). In fact, some jurisdictions require the opposing party to bear the burden of proving prejudice. See. e.g., Padilla'. Sears. Roebuck & Co., 2012 WL 5505071, at *I (N.D. Cal. 2012). In other jurisdictions, a defendant fails to prove prejudice unless it provides substantiated proof of harm. See Green'. Wolf Corp., 50 F.R.D. 220, 224 (S.D.N.Y. 1970). These cases proceed from the premise that the concept of relation back would be undermined if defendants were allowed to bar plaintiffs from joining a case simply by proffering an unsupported protest of prejudice. Id. Here, the Government advances such an unsupported claim of prejudice. The Government seems to be treating this case as no-holds-barred, adversary litigation. In its effort to keep the new victims out of this case, the Government remarkably appears to have forgotten its statutory obligations to protect the victims. Congress has directed that federal prosecutors "shall make their best efforts to see that crime victims are . . . accorded the rights described in 15 EFTA00188628 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 16 of 21 [the CVRA]." 18 U.S.C. § 377I(c)(1). In order for the Government to show "prejudice," it must demonstrate "[d]amage or detriment to one's legal rights or claims." Blacks's Law Dictionary 1218 (8th ed. 2004). Because the Government has a legal obligation to make its "best efforts" to protect the CVRA rights of victims, it does not suffer any undue prejudice from the addition of two new victims seeking to protect their rights — rights that the Government must also protect. Turning to the specifics of the Government's position, the only argument that the Government advances with respect to Jane Doe No. 3 is that her CVRA claim is "specious." DE 290 at 12. This is, of course. an argument not about prejudice to the Government but rather about the merits of Jane Doe No. 3's claims. But in considering a motion for joinder, the Court must assume as true all relevant factual allegations made by the party seeking to join. See Lewis World Boxing Council, 914 F. Supp. 1121, 1123 (D.N.J. 1996). Here, Jane Doe No. 3 has alleged — both in her initial affidavit and in her supplemental affidavit filed along with this pleading — that the Government did not properly confer with her or otherwise afford her rights under the CVRA. See. e.g., DE 291-I at 13 (alleging failure to confer on the NPA); Jane Doe No. 3 Aff. at 5 ("I was never offered a chance to meaningfully confer with the prosecutor for the Government, and 1 was never notified of any hearing that could affect me or my rights as a crime victim to ever bring charges"). And the proposed amendment would allege that the Government did not extend to her the rights promised in the CVRA. See Exhibit I at 1-2. In contending that it will ultimately be able to prevail on such issues, the Government claims that Jane Doe No. 3 told "agents of the Government" not to bother her about the Epstein investigation. DE 290 at 12. The facts surrounding this alleged exchange are highly disputed. To begin with, it appears that the agent did not write any report surrounding this contact, see DE 304-1 at 1-3 (general affidavit that does not reference any specific dates) — a possible deviation 16 EFTA00188629 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 17 of 21 from standard procedure that raises questions about what exactly happened. More important. Jane Doe No. 3 strongly disputes that this brief contact was proper notification of her rights. As she explains at length in her affidavit, she had grave doubts about whether a person calling her out of the blue over the telephone and asking her about sex with Epstein was truly a law enforcement investigator. See Jane Doe No. 3 Aft'. at 4-5. The fact that Epstein and his lawyer called her immediately after this contact only added to her suspicion. Id. at 5. In such circumstances, it is hard to see how a brief telephone call from an FBI agent complies with the CVRA's command that crime victims be reasonably "notified" of their CVRA rights, 18 U.S.C. § 3771 (c)(1), as well as actually afforded their rights — such as the right to confer with the prosecutor. Nor would it have been inconsistent with respect for the victims' "dignity and privacy," 18 U.S.C. § 3771(a)(8), for the Government to have followed its standard procedure of sending written notification of rights to Jane Doe No. 3.6 To be sure, federal prosecutors have "prosecutorial discretion" about which criminal charges to ultimately file. See 18 U.S.C. § 377I(dX6). But that discretion is not a license for the Government to simply decide not to provide proper notification to a victim of serious federal crimes — particularly when that victim was clearly afraid of a dangerous criminal and hiding to escape his wrath. At the very least, the Government can simply deny Jane Doe No. 3 an opportunity to join this case through mere allegation that it complied with the CVRA. The Court should allow an amendment now and make a final determination on CVRA compliance based on an appropriate record? 6 Much later on September 3, 2008. the Government sent notification to Jane Doe No. 3. at her address in , of a possible civil remedy to be pursued. DE 290-I. But it never sent its standard victim notification letter to Jane Doe No. 3 — in contrast to what it did earlier for other victims. 7 The Court will have to make such determination even if it denies the motion to amend. Jane Doe No. I and Jane Doe No. 2 have already stated that they will call Jane Doe No. 3 as a witness at any trial to prove part of a common plan and scheme to deprive the victims of their 17 EFTA00188630 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 18 of 21 The Government will likewise not be prejudiced if Jane Doe No. 4 is added into the case. The initial petition alleged that the Government had no made adequate efforts to notify "victims" about the non-prosecution agreement. Jane Doe No. 4 was in the victim class. The Government churlishly contends that adding her into this case would require "a separate trial over whether or not Jane Doe #4 is a 'victim' who would have been entitled to any rights." DE 290 at 10. Of course, the Government never denies that Jane Doe No. 4 is a victim in this case, presumably because it now possesses ample evidence that Epstein sexually abused her. Undersigned legal counsel has already provided ample information to the Government supporting this fact. The Government has an obligation to use its "best efforts" to protect the rights of victims. Simply demanding a "trial" when it knows what the real facts are is inconsistent with that obligation. The Government also makes other arguments about the merits of Jane Doe No. 4's claims, but those can be handled in due course in this litigation. 3. The Government Is On Notice About Claims from Other Victims. The third and final requirement of the Eleventh Circuit's relation back test is adequate notice in the original complaint of the potential to add new plaintiffs. The Eleventh Circuit has said "the critical issue [regarding relation back] is whether the original complaint gave notice to the defendant of the claim now being asserted." Bloom'. Alvereze, 498 F. App'x 867, 883 (I 1th Cir. 2012). In Bloom, the Eleventh Circuit found that the motion to amend to add Mrs. Bloom to Mr. Bloom's claim did not satisfy the relation back test because Mrs. Bloom was only mentioned in the original pleading vaguely in one instance as Mr. Bloom's wife. Id. In contrast, as recounted in the Factual Background section above, the original petition and reply in this case clearly alleged that many victims — including Jane Doe No. 3 and Jane Doe No. 4 — were banned rights. See DE 291 at 25-26 (citing Fed. R. Evid. 404(b)). 18 EFTA00188631 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 19 of 21 by the Government. For example, the petition alleged "[o]n information and belief, roughly the same crimes were committed [by Epstein] against several other young females. These victims. too, are in danger of losing their right to confer under the CVRA." DE I at 7 n.2 (emphasis added). And the reply supporting the petition asked the Court to "hold that [Jane Doe No. and the other victims in this case had the right to confer with the Government before it reached its non-prosecution agreement." DE 9 at 8 (emphasis added). The reply went on to explain relief sought, specifically that "[t]he Court should therefore declare the proposed non-prosecution agreement an illegal one, since it was reached in violation of the CVRA, and order the Government to confer with Petitioner and the other victims in this matter before reaching any disposition in this case." Id. at 2 (emphasis added). Building on all these allegations, at the first hearing in this case, the Court allowed an additional victim — Jane Doe No. 2 — to join the action. See DE 115 (tr. July I 1, 2008) at 14. The current motion for an amended pleading simply builds on that elaboration, naming two additional victims who were in the victim class alleged at the outset of this case. The courts have readily allowed relation back in such circumstances. See, e.g., Paskulyl. Marshall Field & Co., 646 F.2d 1210, 1211 (7th Cir. 1981) (where "the original complaint alleged that defendant engaged in practices that discriminated against women because of their sex; the defendant was thereby on notice that it might be required to defend its employment practices from charges of class-based discrimination"). Clearly the proposed amendment asserts a claim "that arouse out of the conduct. transaction or occurrence set out — or attempted to be set out — in the original pleading." Fed. R. Civ. P. I 5(c)(1)(8). The adding of new "parties after the applicable statute of limitations may have run is not significant when the change is merely formal and in no way alters the known 19 EFTA00188632 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 20 of 21 facts and issues on which the action is based." Slarenl. Am. Nat. Bank & Trust Co. qf Chicago, 529 F.2d 1257, 1263 (7th Cir. 1976). The Court should accordingly allow an amended pleading. CONCLUSION Jane Doe No. I and Jane Doe No. 2 should be allowed to amend their initial petition. pursuant to Rule 15 of the Federal Rules of Civil Procedure to conform to the evidence in this case and to add Jane Doe No. 3 and Jane Doe No. 4 as petitioners. A proposed first amended petition is attached to this pleading. DATED: February 6. 2015 Respectfully Submitted, /s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE. WEISSING, P.L. DWARDS. FIST0S & LEHRMAN, and Paul G. Cassell Pro Hoc Vice S.J. Quinney College of Law at the University of Utah Attorneys for Jane Doe #1 and Jane Doe #2 • This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah 20 EFTA00188633 Case 9:08-cv-80736-KAM Document 311 Entered on FLSD Docket 02/06/2015 Page 21 of 21 CERTIFICATE OF SERVICE I certify that the foregoing document was served on February 6, 2015, on the following using the Court's CM/ECF system: Elm 500 S. Australian Ave., Suite 400 West Palm Beach. FL 33401 Attorneys for the Government /s/ Bradley J. Edwards 21 EFTA00188634 EFTA00188635 Case 9:08-cv-80736-KAM Document 311-1 Entered on FLSD Docket 02/06/2015 Page 1 of 6 EXHIBIT 1 EFTA00188636 Case 9:08-cv-80736-KAM Document 311-1 Entered on FLSD Docket 02/06/2015 Page 2 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 9:08-cv-80736-KAM JANE DOE NO. I and JANE DOE NO. 2, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. VICTIMS FIRST AMENDED PETITION FOR ENFORCEMENT OF THE CRIME VICTIMS' RIGHTS ACT COME NOW Jane Doe No. I and Jane Doe 2, to file this first amended petition for enforcement of rights under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771. I. Petitioners Jane Doe No. I. Jane Doe No. 2, Jane Doe, No. 3, and Jane Doe No. 4 (hereinafter collectively referred to as "the petitioners"), now adults, were as minor girls the victims of federal sex crimes committed by Jeffrey Epstein (hereinafter "Defendant") and by other co-conspirators between about 1998 and 2006. These crimes included sex trafficking of children (in violation of 18 U.S.C. § 1591), use of a means of interstate commerce entice a minor to commit prostitution (in violation of 18 U.S.C. § 2422), travel with intent to engage in illicit sexual conduct (in violation of 18 U.S.0 § 2423), wire fraud (in violation of 18 U.S.C. § 1343), and conspiracy to commit such crimes (in violation of 18 U.S.C. § 371). The Defendant and others committed these crimes within the jurisdiction of the Southern District of Florida in Palm Beach County, 1 EFTA00188637 Case 9:08-cv-80736-KAM Document 311-1 Entered on FLSD Docket 02/06/2015 Page 3 of 6 Florida, as well as in other jurisdictions inside and outside the United States. The Defendant and his co-conspirators committed similar crimes against dozens of other victims. 2. Upon information and belief, in and around 2005 to 2007. the Defendant and others were the subject of a federal criminal investigation conducted by the United States Attorney's Office for the Southern District of Florida (hereafter "the U.S. Attorney's Office") for crimes committed against the petitioners and other similarly situated victims. In around September 2007, the Defendant and the U.S. Attorney's Office entered a non- prosecution agreement ("NPA"), under which the Defendant and other potential co- conspirators would not be prosecuted for their federal crimes against petitioners and other similarly-situated victims, in exchange for the Defendant's guilty plea to two state offenses, including solicitation of a minor for prostitution. On June 30, 2008. in the Circuit Court for Palm Beach, the Defendant entered his guilty plea to the State offenses and, pursuant to the previous agreement, was sentenced to 18 months in jail. 3. Upon information and belief, around and after September 2007, the Defendant and the U.S. Attorney's Office conspired together to make the NPA confidential and thereafter conceal its existence from the petitioners and other similarly situated victims for as long as possible. This conspiracy was designed to prevent the outcry that would have resulted from awareness by the petitioners, other victims, and members of the public that a wealthy, politically-connected defendant was receiving only a short county jail sentence for hundreds of federal sex crimes committed against minor girls. Among the means used by the conspiracy to conceal the existence of the non-prosecution agreement were false statements directed by the Office that the case was "still under investigation" 2 EFTA00188638 Case 9:08-cv-80736-KAM Document 311-1 Entered on FLSD Docket 02/06/2015 Page 4 of 6 and the Office was considering whether to file charges. when in fact the Office had already entered into the NPA. 4. Under the Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771, when the investigation had focused on the Defendant — and at all times thereafter — the petitioners and other similarly-situated crime victims had the rights (among others) to notice of their rights under the CVRA, to reasonably confer with the prosecutors, to notice of court hearings involving them, and to be treated with fairness. 5. By cooperating together to conceal the NPA's existence until after it has become fully effective — and by taking other improper steps to prevent the investigation and prosecution of the Defendant and his co-conspirators — the U.S. Attorney's Office and the Defendant denied and continues to deny petitioners and other similarly-situated victims their rights (among others) to reasonably confer with prosecutors about the NPA and other aspects of the case, to notice that the June 30, 2008, hearing related to crimes committed against them, to restitution, and to be treated with fairness. WHEREFORE. the petitioners respectfully request this Court grant them appropriate remedies to fully enforce their rights, including (I) a declaration that the NPA is illegal and was entered into in violation of their rights, (2) a declaration that if after consultation with the victims the U.S. Attorney's Office determines that prosecution of Epstein and of others is appropriate then prosecution is permitted, (3) a declaration that the Office shall reasonably confer with the petitioners and other similarly-situated victims about whether to prosecute Epstein and his co-conspirators, (4) a release of all information surrounding the circumstances of the Office's initial decision not to pursue 3 EFTA00188639 Case 9:08-cv-80736-KAM Document 311-1 Entered on FLSD Docket 02/06/2015 Page 5 of 6 criminal prosecution, and (5) all other appropriate remedies that the Court deems just and proper. The petitioners request appropriate discovery and an evidentiary hearing to prove their allegations and secure the relief requested above. DATED: February 6 2015 Respectfully Submitted, /s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE. WEISSING, EDWARDS. FISTOS & LEHRMAN. P.L. and Paul G. Cassell Pro Hat Vice S.J. Quinney College of Law at the University of Utah. Attorneys for Victims • This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah 4 EFTA00188640 Case 9:08-cv-80736-KAM Document 311-1 Entered on FLSD Docket 02/06/2015 Page 6 of 6 CERTIFICATE OF SERVICE I certify that the foregoing document was served on February 6, 2015, on the following using the Court's CM/ECF system: IMM 500 S. Australian Ave., Suite 400 West Palm Beach. FL 33401 Attorneys for the Government /s/ Bradley J. Edwards 5 EFTA00188641 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 1 of 20 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 9:08-cv-80736-1(AM JANE DOE #1 and JANE DOE #2 I UNITED STATES JANE DOE NO. 3 AND JANE DOE NO. 4'S REPLY IN SUPPORT OF MOTION PURSUANT TO RULE 21 FOR JOINDER IN ACTION COME NOW Jane Doe No. 3 and Jane Doe No. 4 (also referred to as "the new victims"). by and through undersigned counsel, to file this reply in support of their motion pursuant to Federal Rule of Civil Procedure 21 to join this action (DE 280). on the condition that they not re- litigate any issues already litigated by Jane Doe No. I and Jane Doe No. 2 (also referred to as "the current victims"). The Government's response (DE 290) fails to contest the new victims' specific argument that good cause exists for allowing them to join. Instead, the Government raises technical arguments about allegedly applicable statutes of limitations found in the CVRA or in 28 U.S.C. § 240I(a). But the CVRA does not contain the time limit that the Government reads into the Act. And § 2401(a) does not bar the action here. The Court should accordingly allow joinder of the new victims.' I. THE GOVERNMENT HAS NOT CONTESTED THE VICTIMS' POSITION THAT GOOD CAUSE EXISTS FOR ALLOWING THEM TO JOIN THIS ACTION UNDER RULE 21. To be clear, this motion is brought on behalf of all four victims — Jane Does No. 1, 2.3 and 4. As indicated throughout their pleadings, the victims do not seek to duplicate effort but rather (represented through the same legal counsel) to pursue a single. consolidated approach. EFTA00188642 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 2 of 20 In their motion for joinder, the new victims advanced several specific reasons why joinder was appropriate under Fed. R. Civ. P. 21, including the facts that their participation would prove a consistent pattern of failing to notify victims. reinforce the relevancy of several document production requests currently pending before the Court. and elucidate the interface between the Government and the victims. DE 280 at 8-10. In a later pleading (responding to arguments from putative intervenor Alan Dershowitz), the new victims also advanced eight specific reasons why their allegations related specifically to current issues in the case, including issues of motive, the scope of any remedy that might be awarded, and the crime/fraud exception to the attorney-client privilege. DE 291 at 17-26. Tellingly, the Government does not directly contest any of these assertions. Instead, the Government raises several technical objections as to why joinder is not possible. The victims respond to each and every objection in the pages that follow. But to the extent the question before the Court is one calling for an exercise of discretion, the Court should act against a backdrop of uncontested reasons demonstrating that joinder of the new victims would be useful. II. THE CVRA DOES NOT CONTAIN A TIME LIMIT APPLICABLE TO THIS ENFORCMENT ACTION. Rather than contest the reasons for allowing two new crime victims to join this CVRA action, the Government attempts to manufacture a time limit out of the CVRA itself. The Government contends that the new victims' motion for joinder is "barred" by 18 U.S.C. § 3771 (d)(5). which provides: A victim may make a motion to re-open a plea or sentence only if— (A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied; 2 EFTA00188643 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 3 of 20 (B) the victim petitions the court of appeals for a writ of mandamus within 14 days; and (C) in the case of a plea, the accused has not pled to the highest offense charged. This paragraph does not affect the victim's right to restitution as provided in title 18, United States Code. The Government's argument fails for the simple reason that the time limit applies only to a motion to "re-open a plea or sentence." The victims are seeking (among other things) rescission of an illegal non-prosecution agreement. not reopening of a "plea or sentence" — two different things. The Court has previously ruled to this effect, specifically discussing § 3771(d)(5). The Court held that lapthough this particular statutory enforcement provision expressly refers to the re-opening of a 'plea' or 'sentence' — events falling in the post-charge stage of criminal proceedings — the court concludes that the statute is properly interpreted impliedly to authorize a 're-opening' or setting aside of pre-charge prosecutorial agreements made in derogations of the government's CRA conferral obligations as well." See DE 189 at 8. Moreover, on the facts of this case, the Government's construction leads to an absurd result. As the Court is aware, the Government arranged for Epstein to execute his NPA on about September 24, 2007 — in secret. At that time, the victims could not "assert(] the right to be heard before or during the proceeding," 18 U.S.C. § 3771(d)(5) (emphasis added), because no "proceeding" was held and the Government concealed what it was doing from the victims. And, of course, the victims could not have then filed for mandamus appellate review "within 14 days" because the Government did not reveal the NPA until almost a year later, and only then after being compelled to do so. Section 3771(d)(5) should not be construed to demand the impossible of crime victims. 3 EFTA00188644 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 4 of 20 The CVRA's legislative history makes clear Congress did not intend for courts to construe § 3771(d)(5) in the perverse fashion advocated by the Government. Senator Kyl, one of the two co-sponsors of the Act, explained that "[t]his provision [§ 3771(d)(5)] is not intended to prevent courts from vacating decisions in non-trial proceedings, such as proceedings involving release, delay, plea, or sentencing, in which victims' rights were not protected, and ordering those proceedings to be redone." ISO CONG. REC. 22954 (Oct. 9, 2004) (statement of Sen. Kyl) (emphasis added). Ele went on to emphasize that "[i]t is important for victims' rights to be asserted and protected throughout the criminal justice process. and for courts to have the authority to redo proceedings such as release, delay, pleas, and sentencings, where victims' rights are abridged." 151.2 The Government also half-heartedly refers to various time limits in 18 U.S.C. § 3771(d)(3). See DE 290 at 3. But the only time limits applicable to the victims in that provision concern appellate relief after a district court has denied relief. Of course, proceedings before this Court are still continuing — no denial of relief has occurred to trigger any obligation by the victims.3 Simply put, nothing in the CVRA contains any limit that bars Jane Doe No. 3 and Jane 2 Section 377I(d)(5) also does not bar ail of the new victims' claims. By its plain terms. the provision is inapplicable to a request for restitution. The current victims have sought restitution, among other forms of relief, see DE 127 at 15, and the new victims seek to simply join in that claim. 3 The Government also argues that victims' counsel did not request "forthwith" action at the July I I, 2008, hearing in this case. DE 290 at 2 (citing DE IS (tr. July I I, 2008) at 25-27). Of course, at that time the action had been pending for just four days. The Government had not provided the NM to victims' counsel, and victims' counsel was only learning about broad outlines of the agreement during the hearing. See DE 15 (tr. July I I, 2008) at 24 (court notes that victims' counsel "learned today ... that the agreement was signed ... in October"). In such circumstances, victims' counsel's decision to seek release of the NPA's text instead of precipitously committing his clients to invalidating an agreement he had not even read yet was 4 EFTA00188645 • Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 5 of 20 Doe No. 4's motion for joinder in this case. And reading any such limitation into the Act would clearly contravene the obvious congressional purpose of giving victims the "right to participate in the system." 150 CONG. REC. S4263 (Apr. 22, 2004) (statement of Sen. Feinstein), III. THE STATUTE OF LIMITATIONS FOUND IN 28 U.S.C. § 2401(A) DOES NOT APPLY TO THIS CVRA ENFORCEMENT ACTION. The Government next resorts to a civil statute of limitation as a barrier to the new victims protecting their rights. This effort, too, is unavailing. A. A CVRA Enforcement Action is not a "Civil Action" Against the United States. The Government contends that the six-year statute of limitations contained in 28 U.S.C. § 2401(a) bars the new victims' entry into this case. The statute covers "civil actions," providing: [E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the ri ht f action first accrues. The action of any person under legal disability or at the time the claim accrues may be commenced within three years after the disability ceases. This provision does not apply to this CVRA enforcement proceeding because it is not a "civil action" against the Government. To be sure, this Court has determined that convenience dictates that the Federal Rules of Civil Procedure "govern the general course of this proceeding." See DE 257 at 3. But that procedural determination does not alter the substance of this case. Indeed. the Government itself takes the position that this CVRA enforcement action is not a civil action, but rather is an "ancillary criminal proceeding()." DE 290 at 2.4 The victims' all agree. Given entirely reasonable. Indeed, any other course would have been foolhardy. 4 The Government's concession readily distinguishes Center for Biological Diversity v. Hamilton, 453 F.3d 1331 (11th Cir. 2006), which is clearly not an "ancillary criminal proceeding," but rather a civil enforcement action of the Endangered Species Act. 5 EFTA00188646 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 6 of 20 the agreement of both sides that this case is a "criminal" proceeding. it is hard to understand how there can even be any argument that § 240 I fai's limitation for "civil actions" is applicable. Confirming this conclusion is the standard definition of a "civil action," which is commonly defined as "a noncriminal litigation." Black's Law Dictionary 34 (9th ed. 2009) (emphasis added). Indeed, as the case law interpreting § 240 I (a) makes clear, the phrase "'civil action' as used in § 2401(a) is a term of art judicially and statutorily defined as one 'commenced by filing a complaint with (a) court.'" Oppenheon I. Campbell, 571 F.2d 660, 663 (D.C. Cir. 1978) (quoting Fed. R. Civ. P. 3). In this case, the victims never filed a "complaint." Instead. they filed a "Petition for Enforcement of Crime Victim's Rights Act," DE 1 — as language in the CVRA itself suggests was the proper procedure. See 18 U.S.C. § 3771(dX3) (providing that crime victims' rights "shall be asserted in the district court" and referring to a "motion" to protect rights). The federal courts — including the Eleventh Circuit — have been unwilling to stretch the meaning of the phrase "civil action" so far as to cover proceedings ancillary to a criminal case. See, e.g.. In re Grand July Proceedings. 832 F.2d 554, 557 (11th Cir. 1987) ("Just in terms of the plain meaning of words, it seems self-evident that an order denying a motion to quash a subpoena issued by a grand jury investigating possible criminal violations is not part of a 'civil action.'"); Blair-Bey I. Quick, 151 F.3d 1036, 1039 (D.C. Cir.) (D.C. Cir. 1998) ("the courts have uniformly concluded that habeas corpus proceedings — and their cousins, section 2255 proceedings — are not 'civil actions"); United States'. Soueiti, 154 F.3d 1018, 1019 (9th Cir.) (finding deportation proceeding conducted as part of a criminal sentencing not a "civil action" because "one definition that is always correct is that civil actions are those that are not 6 EFTA00188647 •Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 7 of 20 criminal"); In re Apr. 1977 Grand Jury Subpoenas, 584 F.2d 1366. 1368 (6th Cir. 1978) ("From a simple reading of the statute itself, it seems self-evident that a grand jury investigation of possible criminal tax violations should not be characterized as a 'civil action"); United States. Wade, 93 F. Supp. 2d 19, 21 (D.D.C. 2000), girds 255 F.3d 833 (D.C. Cir. 2001) (third party intervention in criminal proceeding to oppose abatement order was not a "civil action" because "as the statute's plain language excludes criminal cases, the Court will not parse criminal cases into criminal and 'civil-like' proceedings"); Quinn'. Book Named "Sixty Erode Drawings From Julien." 316 F. Supp. 289, 292 (D. Mass. 1970) (where a proceeding to determine whether book is obscene is ancillary to a criminal prosecution and serves to aid in the enforcement of criminal law, such a proceeding does not come within the term 'civil action"). A crime victim's petition to enforce CVRA rights looks nothing like a conventional civil action against the Government. A CVRA enforcement proceeding does not grant any monetary relief to a victim. The CVRA directly bars a victim from "pursuing a damages action against the government for violation of the [CVRA], and there is no implied private right of action under the [CVRA]." 3B Wright & , Fed. Prac. & Proc. Crim. § 932 (4th ed. 2014); see 18 U.S.C. § 3771(d)(6) ("Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States ... could be held liable in damages."); Cunningham. U.S Dept of Justice, 961 F. Supp. 2d. 226 (D.D.C. 2013) ("[The] CVRA expressly disallows a suit for damages against the federal government or its officials . . . and Mr. Cunningham has failed to carry his 'heavy burden' of demonstrating the requisite congressional intent necessary to establish an implied private right of action."); 200.000 Towers Investors Restitution Victims'. 7 EFTA00188648 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 8 of 20 U.S. ex rel. U.S. Prob. Office New York City Slefff Breach of Crime Victims Act, 2013 WL 6673612. at *2 (S.D.N.Y. 2013) ("This petition is brought pursuant to the CVRA, which does not provide for a private right of action."). Rather, the CVRA provides crime victims certain rights that are related to the prosecution of the accused and sentencing of the guilty. These rights are not civil, but criminal in nature. See In re McNulty, 597 F.3d 344. 352 n.8 (6th Cir. 2010) ("The CVRA was not enacted to short circuit civil litigation to those with valid civil remedies available."). Jane Doe No. 3 and Jane Doe No. 4 are seeking to enforce their rights as crime victims under the CVRA — rights that the Government should have provided to them during its criminal investigation. They are not seeking monetary damages from the government for the violation of their CVRA rights, but rather invalidation of an illegal non-prosecution agreement that bars criminal prosecution of Epstein and his potential co-conspirators. The victims' rights are ultimately enforceable in, and inseparable from, a criminal proceeding. Their action is simply not the type of action covered by .§ 2401(a)'s six-year statute of limitations for "civil actions" against the Government. The Government complains that the victims' position means that no statute of limitations applies to CVRA cases. DE 290 at 506. Not true. The applicable statute of limitations in this "ancillary criminal proceeding" is to be found (appropriately enough) in the criminal code — i.e., Title 18 — not in the judicial code — Title 28, as the Government's position would have it. Of course, the CVRA itself is found in Title 18. And for most crimes, the applicable statute of limitations will be the general five-year statute for filing criminal actions, 18 U.S.C. § 3282 — shorter than the six-year civil tort statute the Government points to. This case, however, involves 8 EFTA00188649 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 9 of 20 sexual offenses against children, and the Court should therefore look to the specific statute of limitations covering such crimes. See Edwards' ShaIola, 64 F.3d 601, 605 (11th Cir. 1995) ("[I]t appears contrary to the Supreme Court's directives .. . to apply a statute [of limitations] of general applicability when there are other more relevant statutory provisions."). In 18 U.S.C. § 3283, Congress has decreed that "[fi]o statute of limitations that would otherwise preclude prosecution of an offense involving the sexual or physical abuse . . . of a child under the age of 18 shall preclude such prosecution during the life of the child. or for ten years after the offense, whichever is longer."5 This statute of limitations governs the underlying criminal prosecution and thus this related CVRA case. Because this limitation period has not expired, Jane Doe No. 3 and 4's motion to join is timely. Indeed, the Government's position would create an absurd result — i.e., that even though the statute of limitations for prosecuting crimes against Jane Doe No. 3 and No. 4 has not yet expired, their ability to protect their CVRA rights in the investigative process of those crimes has somehow expired! Surely Congress did not intend such a bizarre result that would limit the CVRA's effectiveness. $ In 1994, this statute allowed prosecution of an offense against a child up until the child reached the age of 25. See 18 U.S.C. § 3283 (1994). In 2003, Congress passed the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act (the "PROTECT Act"), which further extended the statute of limitations for offenses involving the sexual or physical abuse of a child from when the child reaches the age of 25 years to "during the life of the child." Pub. L. 108-21, Title II, § 202, 117 Stat. 660 (Apr. 30, 2003). See Joint Explanatory Statement of the Committee of Conference, 149 Cong. Rec. 142950-01 (2003) (Conf. Rep.), 2003 WL 1832092 (while the 25-year age limit "is better than a flat five-year rule, it remains inadequate in many cases"). Because the crimes against Jane Doc No. 3 were committed while she was a minor between around 1999 to 2001 (see DE 291-I at 1-12), the statute of limitations had not yet expired as to crimes against her in 2003 and therefore the PROTECT Act's extension of the statute of limitations applies in this case. See United Stalest Vickers, 2014 WL 1838255, at *9 (W.D.N.Y. 2014). EFTA00188650 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 10 of 20 B. Because Jane Doe No. 3 Was Accrued, She Has Timely Filed Her Motion. ' When Her Action First Even if 28 U.S.C. § 240I(a) applies to the new victims' claims, Jane Doe No. 3's claim is still timely. Congress has writtappion into the statute: "The action of any person . . . at th ma be commences within three ears a ter tiedisability ceases. a emp asis a ). In t is case. Jane oe No. 3 was hiding from Jeffrey Epstein and his co-conspirators in from the time her claim accrued until October 2013, when she returned to the United States. See Ex. 1 at 3 ("I was in from late 2002 to October 2013. To be clear, I was never in the United States during these years, not even for a short trip to visit my mother."). The Court can take judicial notice that the distance from West Palm Beach. Florida, to and that travel between the two points would involve passing over the Pacific Ocean. Therefore, Jane Doe 3 was plainly H when the events giving rise to her claim occurred, and the running of the limitations period, if applicable, did not begin until she returned to Florida about 16 months ago, in October 2013. Jane Doe 3 has therefore filed her action within the three-year time period specified by § 2401(a) for persons returning to this country from Confirming the commonsense conclusion that Jane Doe No. 3 was Black's Law Dictionary (9th ed. 2009) defines ' ' as: "(Of a person) Being absent from a jurisdiction or nation; out of the country, esp. across the ocean."6 Moreover, Congress first crafted the ' ' language in 1911, when it plainly referred to persons living outside the United States. The original tolling provision provided: 6 Black's Dictionary gives the above-quoted definition for the phrase "beyond seas," but 10 EFTA00188651 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 11 of 20 Provided, That the claims of married women, first accrued during marriage, of persons under the age of twenty-one years. first accrued during minority, and of idiots, lunatics, insane persons. and persons at the time the claim accrued, entitled to the claim, shall not be barred if the suit be brought with three years after the disability has ceased... . Act of Mar. 3, 1911, ch. 231, § 24, para. 20, 36 Stat. 1093 (emphasis added). The decisive question when construing a statute is what did the words mean "at the time of the statute's enactment." Taniguchi'. Kan Pac. Saipan, Lids. 132 S. Ct. 1997, 2003 (2012). In 1911, the phrase ' ' clearly embraced persons who were outside the United States, as previous court decisions had held. See. e.g., Murray's Lessee'. Baker. 16 U.S. 541, 545 (1818) (concluding that "the words must be held to the equivalent to 'without the limits of the state'). In 1948, Congress saw fit to re-codify this provision into Title 28 of the United States Code and replaced the statutory references to minors and mentally disabled persons with the consolidated term "under a legal disability." See Act of June 25, 1948. Pub. L. No. 80-773, 62 Stat. 971 (codified as amended at 28 U.S.0 § 2401(a)). But Congress chose to leave the words unaltered — with the result that they continue to have the same meaning as they had in 1911. See IA SUTHERLAND STATUTORY CONSTRUCTION § 22:33 (7th ed.) ("Provisions of the original act or section which are repeated in the body of an amendment, either in the same or equivalent words, are a continuation of the original law"). Congress knows how to write statutes of limitations that do not toll the limitations period for persons Cf. 18 U.S.C. 2255(b) (containing a tolling provision for crime victims "under a legal disability," but not containing a tolling provision any other persons). notes that the phrase ' ' is an equivalent. Id. II EFTA00188652 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 12 of 20 Where Congress has deliberately chosen to toll the running of the limitations period while a claimant is 'fl" as in 28 U.S.C. 2401(a), a court lacks the power to narrow the scope of the plain meaning of that phrase. See CBS Inc.'. PrimeTime 24 Joint Venture, 245 F.3d 1217. 1228 (11th Cir. 2001) (cautioning against allowing "clearly expressed legislative decisions... [to] be subject to the policy predilections of judges."). The Government may try to argue that, in its view. this tolling provision is now somehow outdated, given the arrival of technology permitting less expensive international telephone calls and the like. But the Government's opinion about whether this tolling provision remains sound public policy is beside the point. Courts do not exist to "update" statutes in light of the latest technological developments. See Myers'. Toolay's d4gnu. Corp., 640 F.3d 1278. 1286 (11th Cir. 2011) (courts "are not licensed to practice statutory remodeling"); Wright. Sec 'y for Dept of Corrs., 278 F.3d 1245, 1255 (11th Cir.2002) ("Our function is to apply statutes, to carry out the expression of the legislative will that is embodied in them, not to 'improve' statutes by altering them."); see also Lees 1. City of Riviera Beach, Fla., 166 F.3d 1332, 1351-52 (11th Cir. 1999) (Edmonson. J., dissenting) ("it is the qualities of the text when it was written — and not our response to it as modern readers — that must be our guide. . . . [W]hat we personally might like this statute to mean . . . in the light of current circumstances ... has no rightful place in our work Whether to modernize a statute is Congress' decision. See City of Greenwood. Miss.'. Peacock, 384 U.S. 808, 834 (1966) ("[I]f changes are to be made in the long-settled interpretation of the provisions of this century-old . . . statute, it is for Congress and not for this Court to make them."). Put simply, while Jane Doe No. 3 was living in she was 12 EFTA00188653 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 13 of 20 — i.e., outside of the borders of the United States — and section 2401(a)'s statute of limitations was tolled? C. Because Jane Doe No. 3 and Jane Doe No. 4 Were Unaware of Their Ability to File a CVRA Action Until Recently, They Timely Filed Their Motions. In arguing that the statute of limitation has lapsed in this case for Jane Doe No. 3, the Government apparently starts the six-year clock running on September 3, 2008, when the U.S. Attorney's Office sent a letter to her in M. See DE 290 at 3 (citing letter attached as DE 290-I ).8 But that letter did not clearly communicate that a CVRA cause of action existed. To the contrary, the letter was quite misleading about what was happening. The Government told Jane Doe No. 3 only that "there has been litigation between the United States and two other victims regarding the disclosure of the entire agreement between the United States and Mr. Epstein." DE 290-I at 3 (emphasis added). But the litigation did not involve disclosing the agreement; rather the goal was invalidating the agreement. The Government's intentionally deceptive description confused Jane Doe No. 3, who states that "[u]nderstanding more about that [CVRA] case now. I realize that the letter did not explain that the real purpose of that litigation was not to get 'disclosure of the entire agreement' but instead to get criminal charges filed against Epstein and to uphold the rights of Epstein's victims. I wish that the Government had 7 This case does not present any occasion for the Court to consider how § 2401(a)'s statute of limitations applies when a person is voluntarily absent from the United States. As Jane Doe No. 3 attests in her affidavit, she was involuntarily outside of the United States because she was concealing herself from Epstein. See Ex. I at 3 ("my absence from the United States was not voluntary — I was hiding from Epstein out of fear of what he would do to me if I returned to the United States."). The Government also refers briefly to earlier events in the case. See DE 290 at 6-7. But clearly those earlier events did disclose to Jane Doe No. 3 the existence of a secret non- prosecution agreement. She first became aware of the existence of such an agreement through the Government's letter on September 3. 2008. 13 EFTA00188654 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 14 of 20 told me that was what was really going on." Ex. I at 5-6. Given this deception, the Court should not conclude — on the basis of mere pleadings — that Jane Doe No. 3's obligation to file began on September 3, 2008. Finally, the September letter informed Doe 3 to call an attorney in Miami who was assigned her representation by the Government through the NPA. That firm had to work within the confines of that Government assignment and direction and therefore could not, and did not, inform Jane Doe No. 3 of a right to participate in this CVRA case which was aimed at invalidating the very agreement through which this law firm was mandated to operate. The Government's position regarding Jane Doe No. 4 is also mystifying. The Government asserts that she had legal representation "as early as 2012." DE 290 at 9. Of course, that date falls well inside the six-year period of limitations, so her claim would not be time barred in any event. IV. THE GOVERNMENT PROVIDES NO PERSUASIVE ARGUMENT AGAINST RULE 21 JOINDER. For the reasons just explained, neither the CVRA nor 28 U.S.C. § 240I(a) provides any barrier to Jane Doe No. 3 and Jane Doe No. 4 joining this case. As a result, the path would seem to be clear for the Court to simply grant the current victims' motion for joining the new victims under Fed. R. Civ. P. 21. The Government, however. has several other arguments that it throws out. None of them is persuasive. Perhaps recognizing that Rule 21 broadly allows for the addition of new parties, the Government contends that the Rules of Civil Procedure do not even govern this action. Proceeding from the premise that this case is an "ancillary criminal proceeding" (DE 290 at 2), I4 EFTA00188655 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 15 of 20 the Government points out that the Rules of Criminal Procedure lack a provision for adding new parties. Thus, the Government concludes, that no parties can be added here. Id. The Government's hyper-technical argument suffers from two clear flaws. First, the Court has already ruled that, as to procedural matters in this case, the civil rules govern. See DE 257 at 3 ("As this Court has previously indicated, see DE 190, the Federal Rules of Civil Procedure govern the general course of this proceeding."); see also Local Rule 88.9 (motions in criminal cases governed by Local Rule 7.1, which parallels Fed. R. Civ. P. 7). Second and more fundamentally, the Government's crabbed interpretation of the CVRA would mean that a new victim should never be allowed tojoin a previously-filed CVRA action. This position- is belied not only by the clear intent of Congress to create enforceable rights for crime victims, but also by the Government's own action in previously agreeing to Jane Doe No. 2's motion to join the case. See DE I5 (tr. July I 1, 2008) at 14 (Court: "[D]o you have any objection to Jane Doe 2 being added as a petitioner in this case?" Government counsel: "No, I don't."). Clearly, as the Government's own previous agreement demonstrates, some procedural device should allow a new victim to be added to a previously-filed CVRA case, as otherwise the court's docket could be unnecessarily cluttered with separate actions. As a fallback, the Government advances the claim that the rule of civil procedure controlling the pending motion is not Rule 21 (regarding joinder of parties), but rather Rule 15 (regarding amendments to pleadings). See DE 290 at 2. The Government's argument does not square with the plain language of the two provisions. While Rule 15 deals with amending pleadings, Rule 21 specifically indicates that, upon motion, the Court has power to "add . . a party." Of course, since the current motion involves an effort to add new parties, it is 15 EFTA00188656 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 16 of 20 appropriate for the Court to resolve the issue under Rule 21. As one court has explained, "Any conflict or ambiguity which results from a comparison of [Rule 15(a) and Rule 21] ... must be resolved in favor of the specific and against the general. Thus, when a proposed amendment to a complaint seeks to effect a change in the parties to the action, Rule 21 ... controls and, to that extent, limits Rule I5(a)." Intl Broth. of Teamsters'. AFL-CIO, 32 F.R.D. 441, 442 (E.D. Mich. 1963). While the Government cites three cases allowing the addition of new parties through Rule IS (DE 290 at 102). none of these cases address the issue of whether Rule 15 or Rule 21 is the proper vehicle to do so. Most cases that have discussed directly which of the two rules applies have concluded that Rule 21 is the appropriate vehicle for adding a party. See, e.g.. South Dakota ex rel. S. Dakota R.R. Awh.l. Burlington N. & Santa Fe Ry. Co., 280 F. Supp. 2d 919, 924 (D.S.D. 2003) ("Pleadings and Motions are dealt with under Part 111 of the Rules [i.e., Rules 8 to 16]. Parties are dealt with under Part IV of the Rules [i.e., Rules 17-25]. If a plaintiff could simply add a party by amending the complaint, there would be no purpose for Rule 19 . . . ."); Joseph'. House, 353 F. Supp. 367. 371 (E.D. Va.), ced sub nom. Joseph. Blair, 482 F.2d 575 (4th Cir. 1973) ("Rule 21 ... provides that parties to an action may be added by order of the Court at any stage of the proceedings. This rule precludes the plaintiffs from being able to file their amended complaint as of right, which they seek to do. The plaintiffs would ordinarily be able to do so under Rule 15(a)."). Because the Government has refused to stipulate to Jane Doe No. 3's and Jane Doe No. 4's entry into the case, the victims are contemporaneously filing with this reply a protective motion for amendment under Rule 15 to add the new victims. But the new victims continue to rely on Rule 21's plain language as their primary argument to join this case. 16 EFTA00188657 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 17 of 20 The Court should apply Rule 21 and allow Jane Doe No. 3 and Jane Doe No. 4 to be added to this case at this time. It is well-settled that "(u)nder the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged." United Mine Workers of Am.'. Gibbs, 383 U.S. 715, 724 (1966). As discussed in Part I, above, the Government had not contested the reasons that support joining the new victims into this case. Instead, the Government's only arguments pertain to the timing of the motion. But Rule 21 itself makes clear that new parties can be added "at any time." Fed. R. Civ. P. 21. And the cases clearly demonstrate the joinder is appropriate, even at very late stages of a proceeding, if justice will be served. See. e.g.. Data General Corp. Grumman Sys. Support Corp., 825 F. Supp. 340, 344 (D. Mass. 1993) (where common question of fact existed about plaintiff student suing under the Civil Rights and two other students who were not parties to the suit, it was appropriate for the court to join the two other students at the conclusion of the trial when a portion of the relief request was granted). Of course, this case is not at a late stage, but is still in a discovery phase. The Government's arguments about undue delay and prejudice arc meritless, as the victims discuss in their concurrently-filed motion for amendment under Rule 15.9 But for purposes of this Rule 21 motion, one point is decisive. If the Court does not allow the new victims to join this CVRA enforcement action, then they intend to file their own, separate enforcement actions. Because there is no statute of limitations for doing so. the separate actions would be proper. But the separate actions would produce entirely duplicative litigation over the 9 The victims specifically adopt and incorporate by reference here the arguments against undue delay and prejudice that they make in their Rule IS pleading. 17 EFTA00188658 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 18 of 20 same set of facts. This reality should be the decisive factor in favor of allowing joinder here. See Hawkins'. Fulton C'nty., 95 F.R.D. 88. 91 (N.D. Ga. 1982) (allowing new parties to be added under Rule 21 because denying motion "would only result in the filing of a second. possibly duplicative suit. This Court is duty bound to prevent that sort of duplication of effort which is a waste of judicial resources."). Indeed, allowing joinder will clearly reduce litigation burdens — on both the Court and the Government. The motion seeks to have the new victims added into this action, conditioned on the requirement that they not re-litigate any issues previously litigated. Of course. if Jane Doe No. 3 and Jane Doe No. 4 were to file new lawsuits, they would not be subject to any such restriction. Allowing joinder in this action is clearly consistent with the Crime Victims' Rights Act. The CVRA — the most specific directive to this Court — commands that the Court "shall ensure that the crime victim is afforded the rights described [in the CVRA]." 18 U.S.C. § 3771(b)(1) (emphasis added). Congress intended that "the courts of this country . . . will be responsible for enforcing" victims' rights provided in the CVRA. 150 CONG. REC. 22953 (Oct. 9, 2004) (statement of Sen. Kyl). The best way the Court can "ensure" that Jane Doe No. 3 and Jane Doe No. 4's rights are afforded is by allowing them to join this enforcement action. The Court should accordingly allow them to join. CONCLUSION Jane Doe No. 3 and Jane Doe No. 4 should be allowed to join Jane Doe No. I and Jane Doe No. 2 in this action, pursuant to Rule 21 of the Federal Rules of Civil Procedure. The joinder should be conditioned on the requirement that Jane Doe No. 3 and Jane Doe No. 4 not re- litigate any issues previously litigated by Jane Doe No. 1 and Jane Doe No. 2. 18 EFTA00188659 .ease 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 19 of 20 DATED: February 6. 2015 Respectfully Submitted, /s/ Bradley J. Edwards Bradley J. Edwards FARMER. JAFFE, WEISSING. EDWARDS FISTOS & LEHRMAN, P.L. and Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah Attorneys, or the victims This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah 19 EFTA00188660 Case 9:08-cv-80736-KAM Document 310 Entered on FLSD Docket 02/06/2015 Page 20 of 20' CERTIFICATE OF SERVICE I certify that the foregoing document was served on February 6, 2015, on the following using the Court's CM/ECF system: 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: 561 820-8777 Attorneys for the Government Thomas Scott ar COLE. SCOTT & KISSANE, P.A. -and- Kendall Coffey Gabriel Groisman Benjamin H. Brodsk n om COFFEY BURLINGTON. P.L. Attorneys for Alan Dershowit: /s/ Bradley J. Edwards 20 EFTA00188661 Case 9:08-cv-80736-KAM Document 310-1 Entered on FLSD Docket 02/06/2015 Page 1 of 28 EXHIBIT 1 EFTA00188662 Case 9:08-cv-80736-KAM Document 310-1 Entered on FLSD Docket 02/06/2015 Page 2 of 28 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE #1 and JANE DOE #2, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. DECLARATION OF JANE DOE 3 I. The Court is familiar with me from my previous declaration in this case. I am currently 31 years old and want to become a part of the case to enforce my rights and possibly allow criminal prosecution of Jeffrey Epstein and others who abused underage girls. 2. I have seen a Government filing saying that I waited too long before trying to become a part of this case. I don't think that the Government's position tells the full story about me. In fact, 1 believe the Government is hiding some of the things that it knows about me and about other powerful people involved in this case. 1 am filing this declaration so that the Court will have more facts to make the decision about whether to let me come into the case. 3. In its latest filing, the Government seems to be questioning why I was afraid and did not come forward to speak more quickly. To understand my reasons, it is important that I share at least some additional information about why I was so fearful after my abuse by Epstein and others. 4. The Court can best understand my situation by looking at my previous declaration and then understanding why I was afraid of Epstein, how I eventually escaped from him, and how I was forced to hide from him and others. 5. I first met Epstein when I was 15 years old. I have told the Court about some of my sexual and physical abuse in my earlier declaration. 6. As a result of that abuse and my considerable interactions with Epstein and his friends, I knew that Epstein was connected to some of the most powerful people in the world, including a member of the British Royal family, a former President of the United States, and other very powerful lawyers, politicians and businessmen. I was afraid of what would happen if I tried to escape from Epstein or report him to law enforcement. EFTA00188663 Case 9:08-cv-80736-KAM Document 310-1 Entered on FLSD Docket 02/06/2015 Page 3 of 28 7. 1 also knew what Epstein and Maxwell had been doing the years that I was with them. In addition to constantly finding underage girls to satisfy their personal sexual desires, Epstein and Maxwell also got girls for Epstein's powerful friends and acquaintances. Epstein specifically told me that the reason for him doing this was so that they would "owe him," they would "be in his pocket," and he would "have something on them." Epstein used to brag a lot to me about the important people that owed him favors. 8. Epstein said that he knew people that were very powerfid and who were politically involved, and that consequently he was someone you didn't want to mess with. I also knew this to be true from my personal observations with him. 9. Epstein also apparently paid to get protection from authorities. For example, Epstein told me that he paid a substantial "donation" to the Palm Beach police every year to "keep their mouths shut" about his activities. I do not know if his claim is true, but it certainly added to my fear. 10. Epstein arranged for many politically powerful, older men to have sex with underage girls — including me. Because these were crimes — and because some of these men were married — this gave Epstein