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FLORIDA
CASE NO. 502008CA028051XXXXMB AB
Plaintiff,
V.
Defendant.
DEFENDANT. JEFFREY EPSTEIN'S. MOTION TO CLARIFY RECORD
Defendant, JEFFREY EPSTEIN ("Mr. Epstein"), by and through his undersigned
counsel moves this court for clarification of the record regarding representations made by
Plaintiffs counsel, William Berger, Esq., at the September 23, 2009 hearing on Plaintiffs
Motion for Protective Order, and as grounds therefore, would state:
1. Plaintiffs counsel was seeking a protective order precluding Mr. Epstein from
attending the deposition of ■.
2. At the hearing, the undersigned counsel for Mr. Epstein and Jack Goldberger,
the criminal defense attorney who was in attendance at the plea and sentencing on June
30, 2008, represented to the Court that Judge Pucillo's no contact order dealt specifically
with three victims who were identified in the state proceedings, in that the "list" of purported
victims under the Non-Prosecution Agreement was not provided to Judge Pucillo on June
30, 2008 and in fact was not provided to Mr. Epstein's counsel until after the June 30, 2008
court hearing.
3. Mr. Berger who was not present at the plea or sentencing, and was reading only
EFTA00723160
the bare transcript stated "the representation concerning Judge Pucillo's ruling is
completely false." See transcript, page 13, Exhibit "A" attached hereto. Mr. Berger s
comments were inaccurate. While Judge Pucillo did have the Non-Prosecution Agreement;
she never had the "list."
4, Attached hereto is the affidavit of Jack Goldberger who as referenced above,
was at the Judge Pucillo hearing, and was the first attorney on behalf of Mr. Epstein to
receive a copy of the "list" Which was referenced in the Non-Prosecution Agreement. See
Exhibit "B" hereto.
5. When the "list" was in fact provided to Mr. Goldberger,. specifically was not
on the list. See affidavit of Jack Goldberger.
6. Any suggestion, either directly or by implication, that ■. (a. is ■.) was on
the list Is debunked by the declaration of Asst. U.S. Attorney, Marie Villafana, dated July
9, 2008 in pertinent part (pages 1 , 4, 6 and 7) attached as Exhibit "C" hereto Exhibit C,
par. 12 specifically states:
12.
On today's date, your Affiant provided the attached victim notifications
to ■.
and
via their attorney, Bradley Edwards (Exs. 6 & 7). A
notification was not provided to ■. because the U.S. Attorney's
modification limited Epstein's liability to victims whom the United
States was prepared to name in an indictment. In light of ■.'s prior
statements to law enforcement, your Affiant could not in good faith
include ■. as a victim in an indictment and, accordingly, could not
include her in the list provided to Epstein's counsel.
In the plea conference, June 30, 2008, there are reference to several victims at
EFTA00723161
page 20. However, that reference, is completely unrelated to the Non-Prosecution
Agreement or the "list" referenced in the NPA. At no time during the course of the plea
colloquy or the sentencing, is there ever a discussion of the "list" which was not available
to Judge Pucillo, and therefore she was not in a position to nor did she intend to issue an
order relating to a group of unknown people on a "list" which existed solely with the
USAO's office until some time in early July of 2008.
WHEREFORE, Defendant Jeffrey Epstein moves this court for clarifying the record,
and the erroneous and/or misleading statements made by Plaintiffs counsel.
Certificate of Service
I HEREBY CERTIFY that a true c2py of the foregoing was sent by fax and U.S. Mail to
the following addressees on thiseby of November, 2009:
Brad Edwards, Esq.
Rothstein, Rosenfeldt, Adler
401 East Las Olas Boulevard
Suite 1650
Fort Lauderdale, FL 33301
Counsel for Plaintiff
Jay Howell, Esq.
Jay Howell & Associates, P.A.
644 Cesery Boulevard
Suite 250
Co-counsel for Plaintiff
Jack Alan Goldberger, Esq.
Atterbury, Goldberger, & Weiss, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401-5012
Fax: 561-835-8691
Co-Counsel for Defendant Jeffrey
Epstein
EFTA00723162
303 Banyan Boulevard, Suite 400
ISIMI
FL 33401
(561) 253-0164 Fax
By:
Robert Dr. Critt n, Jr.
Florida Bar No.. 224162
Michael J. Pike
Florida Bar No. 617296
(Counsel for Defendant Jeffrey Epstein)
EFTA00723163
Condensed Transcript
Plaintiff,
VS.
Defendant.
CASE NO.
502008CA028051XXXXMBADD
September 23, 2009
8:50 am.
205 North Dixie Highway
Suite 11-B
West Palm Beach, Florida 33401
EXHIBIT NO
A
ESQUIRE
on Melanie( GAII•Capsar
Toll Free: 866.709.8717
Facsimile: 561.394.2621
Suite 600
4440 PGA Boulevard
Palm Beach Gardens, FL 33410
EFTA00723164
Hearing
September 23, 2009
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Proceedings in die Matter of.. v. Epstein
Wednesday. September 23, 2009
•
THE COURT: M. and Epstein.
5
MR. CRITT0N: You get a good clear hearing now, no
6
problems wan the lawyers.
7
MR. BERGER: Vow Honor, good morning.
S
Willem J. Berger for the Plaintiff,. and
9
we're hero on our client's motion for protective order.
10
Your Honor. there's procedural background that I'd
11
rather hope that we can avoid which is why everytlYng
12
is sort of rush, rush, rush, as well as with the
13
Sings.
14
THE COURT: Yeah. I knew this was tiled,
15
yesterday I knew you were going to rile something, but
16
I haven't had a chance to look at it.
17
MR. BERGER: I'm also going to ask the Court's
is
indulgence for a request that I have.
19
The basis of our notion for protective order is to
20
keep, the goal 1610 keep Mr. Epstein physically not
21
present at the deposition of our client.
22
The basis for the motion we two orders, one that
23
was entered by the sentencing judge Medi al the time
24
was Judge Puente,, ft's now in front of Judge Colbath
25
on Mr. Epstein's. the sex crimes he was convicted of
•
4
9
10
It
12
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14
IS
BURMAN CarrTON LUTTIER a COLEMAN
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303 Banyan Botivoind
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Woe Pain Bodo". Florid. 33401
15
($51) 042.2020
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Ft0THanfe•ROSENFELOT &SOLER
225 NE Mawr Boodavani
Suit 676
Ekon Rolm, Finite
(561)322.7730
2925 PGA Sot!~
Sun) 200
Pate Bond) Gaoann, Ronda 33410
(561)615.1400
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20
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JACK A, 004DBEROER. 890
20)Seum AUSbiaen Avenue
If
Soalo 1460
Web Palm Beach. Ronda 33401
21
(561) 6594300
24
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25
MS'
4
1
that contained a no contact order which we've quoted in
2
Our m0B011.
3
They disagree with the interpretation of it as far
•
as whether he can be physically present as opposed to
5
having verbal or any Indirect communication.
6
We think no contact means you stay away, you're
7
not physically present.
8
The second order that we base our motion on is
9
Judge Marra, the Federal Judge who has the Federal
10
civil litigation similar to yours under a Federal
11
statute in which he entered a written no contact order,
12
and we have competing Interpretations on whether that
13
means the gentleman can or cannot be physically present
1 4
at the deposition.
15
Your Honor, stepping back, and it took me a while
16
to reeve on this, if you were asked and you were, and
17
you have jurisdiction to interpret both orders, there's
18
no question about it, but I think the prudent course of
19
conduct, and it's not in my papers, but I told
20
Mr. triton a couple minutes ago that I was asking for
21.
this, I'm requesting the Court to defer to allow us to
22
go In front of the sentencing judge, Judge Cotalh. and
23
our clients have standing es victims under the Florida
24
conStitution, to ask him for an interpretation of
25
whether the no contact order, if its no contact of,
ESQUIRE
vw4to 0.II*Comotst
Toll Free: 866.709.8777
Facsimile: 561.394.2621
Suite 600
4440 PGA Boulevard
Palm Beach Gardens, FL 33410
EFTA00723165
Fearing
September 23, 2009
9
11
1
MR. CRITTON: Absolutely.
1
there's a very high standard. I gave the Court a case
2
MR. BERGER: We object to the Court, s
2
called FerrignO, F-e-r-r-i-g-n-0, it's at 495 So.2nd
3
consideration of that strenuously.
3
886 and it basically says, the Court in that instance
4
THE COURT: Well. again. I'm just asking for
4
said look, I'm not going to exclude party witnesses
s
anecdotal information because the name, there's no
5
from the deposition because they may. they may be able
;
names here so I'm not suggesting that --
6
to work off of each other to get their stories
7
MR. BERGER: Mr. Epstein paid for her attorney to
7
straight.
8
se at that interview.
8
The 2nd District in that case basically said
9
THE COURT: Again, I donl really want to be
9
there's only one case out there that deals with
to
interrupted, Mr. Berger, respectfully.
10
paparazzi and it involves the Onassis family, every
11
I just want to make sure I'm understanding who the
11
other case in Florida and every, and the rule is very
12
parties are and not so much trying to make a
12
clear that the party, you cant exclude someone as a
13
determination as to whether or not there's any truth or
13
means for one petty to obtain an advantage over the
14
falsity or any intimidation relative to that statement.
14
other so there's no case law that supports the
15
is just a matter, as I said, to try to align the
15
extraordinary remedy and the extraordinary burden that
16
parties in a way that I can somehow make some type of
16
they have under the circumstances.
17
sense et the matter so rd ask you not to interpret
17
Judge Marra's order deals with communications,
18
again, please.
18
Mr. Epstein would be sitting in the room, he'd be
19
MR. CARTON: Only on U., she's the one who gave
19
sitting a distance from the Plaintiff in this instance.
zo
the FBI statement.
20
it in fact something dd. Inappropriate did occur
21
I read your transcript from the hearing of May
21
during the deem/lion such as it happens very
22
22nd of '09 the year, you specifically said when you
22
occasionally in depositions. Judge. Mr. Edwards or
23
were making a ruling in that case, I'm looking at the
23
Mr. Berger can say we're terminating the deposition and
24
statement from the FBI where she says Mr. Epstein's a
24
it is a video deposition.
25
good guy, he's an awesome guy, there's never been a
25
And finally, this happens in domestic cases all
10
12
1
problem, everything I did was consensual.
1
the time, there's allegations of physical abuse and
2
Now she's taking a very different position so
2
verbal abuse and those depositions proceed without.
3
she's either perjured herself in interrogatories or
3
almost universary without incident Including those
4
she's perjured herself to the FBI and even the United
4
where an injunction against domestic violence has been
5
States Attorney lawyers, but she basically said, again.
s
issued that said you can't get near anyone.
6
there's no affidavit from her that she says I'm going
6
I would respectfully suggest that with a complete
7
to Do intimidated or harassed.
7
lack of evidence under the circumstances, that
a
And the Court will recall from last week that
8
Mr. Epstein be stowed to attend. And Judge Pucillo's
9
Mr. Kevin, we had come in front of the Court on a
9
order, and I have Mr. Goldberger here, dealt with three
1 0
question that was asked about the shape of
10
victims -.
t.2.
Mr. Epstein's penis. rve had Mr. Edwards ask at a
11
THE COURT: You need to wrap W. please.
:2
deposition how do you feel about when you had a linger
12
MR. CARTON: it dealt specifically with three
3
inside such and such at the tine.
13
victims. I don't understand criminal law, but she said
:4
Again, we terminated that deposition, that s an
14
the victim, so if Mr. Goldberger could have 10 seconds
:5
issue that's going to he in front of you and the Court
15
ho could explain that because I don't understand it, I
16
said at that time I can't tell you how to do your
16
understand it --
3.7
discovery, I can't tell you what questions to ask, but
17
THE COURT: Ten seconds.
re
I'll put it into the perimeters.
1a
MR. GOLDBERGER: Thank you, Judge.
19
So there's no affidavit from an expert which is
19
Just very briefly, the criminal case came out of
10
the pending motion In front of Judge Marra in court
20
an Indictment In which three witnesses testified in
' t
where they Med actually an affidavit on behalf of an
21
front of the grand jury.
22
expert that the person said I feel I may be intimidated
22
The victims in the criminal case are three
.23
or embarrassed or whatever her circumstances were.
21
specific women. I will proffer to the Court that
74
So there's nothing to the contrary. The FBI
24
Mr. Berger's client was not one of those three women so
25
statement stands, there's a strong standard that.
25
the no contact order that Judge Puoito entered in the
0
ESQUIRE
in Altrailts Calle Wane,
Toll Free: 866.709.8777
Facsimile: 561.394.2621
Suite 600
4440 PGA Boulevard
Palm Beach Gardens FL 33410
EFTA00723166
Hearing
September 23, 2009
1.7
1.
demonstration that one or, one or more of the alleged
2
victims, and I should use the word Plaintiff In this
3
case and sorry for the utilization of alleged victim
4
and alleged perpetrator, probably not the best way to
5
go about this, Plaintiffs and Defendant would be the
6
best way to approach It, but unless there is a
7
demonstrable and evident reason to depart from the
8
Court's ruing In this regard, then my toting will stand
9
for as of the Plaintiffs who are sought to be deposed.
10
Gentlemen, again. thank you. I do have to move
11
on.
12
MR. CRITTON: Thank you for your help, Judge.
13
THE COURT: And I'll give you back your materials.
14
And thank you.
IS
MR. CRITTON: I appreciate you seeing us today.
16
(Whereupon, the hearing was concluded at 9:10
17
a.m.)
is
19
20
21
22
23
24
25
18
CERTIFICATE
a
3
)
4
7
8
I, COLLEEN M. GRUFF-BROWN, RPR, certify that I was
9
authorized to and did stenographIcalty report the foregoing
10
proceedings and that the transcript Is a true and complete
12
record of my stenographic notes.
12
13
14
Dated the 9th day of October. 2009.
15
16
17
liff
19
Colleen M. Gruff-Brown, RPR
20
21.
22
21
24
25
E
a. me so nett 0,46. CtIony
Pal
Toll Free: 866,709.8777
Facsimile: 561.394.2621
Suite 600
4440 PGA Boulevard
nillifiyaciFL
33410
EFTA00723167
FLORIDA
CASE NO. 502008CA028051XXXXMB AB
Plaintiff,
v.
Defendant.
) SS
BEFORE ME, the undersigned authority, personally appeared having personal
knowledge and being duly sworn, deposes and says:
1 . I, Jack A. Goldberger, have personal knowledge of the matters set forth herein.
I am an attorney licensed to practice in the State of Florida since 1978. I am a partner with
the law firm of Atterbury Goldberger & Weiss, P.A., located at One Clearlake Centre, Suite
1400, 250 Australian Avenue South, West Palm Beach, FL 33401.
2. My practice includes and specializes in the defense of criminal matters. I am
board certified in criminal law. I have been and currently am the criminal defense attorney
for JEFFREY EPSTEIN.
3. I was the attorney of record for Mr. EPSTEIN at the plea colloquy and sentencing
that occurred on June 30, 2008.
4. I reviewed the transcript from the plea colloquy and sentencing which was
attached to M.'s Motion for Protective Order. I am well familiar with the transcript in that
EXHIBIT -5
EFTA00723168
I was present.
5. While the Non-Prosecution Agreement ("NPA")was discussed at that proceeding,
at no time was the "list" referenced within the NPA presented to the Judge or to anyone
else. As of June 30, 2008, I had not been provided a copy of the "list".
6. The first time I was provided a copy of the "list" referenced in the NPA was
sometime after the June 30, 2008 hearing before Judge Pucillo.
7. The representation or suggestion made by Mr. Berger at the hearing on
September 23, 2009 that the individuals on the USAO"s "list" were incorporated into Judge
Pucillo's ruling, is misleading and incorrect.
8. I am well familiar with the "list" and M. is not listed as a "victim" on that "list".
J
k A. Goldberger, Esq.
I hereby Certify that on this day, before me, an officer duly authorized to administer
oaths and take acknowledgments, personally appeared Jack A. Goldberger, Esquire,
known to me to be the person described in and who executed the foregoing Affidavit, who
acknowledged before me that he executed the ame, that I relied upon the following form
of identification of the above named person: Clittiona It) Kim, /
and that an oath
was/was not taken.
WITNESS my hand and official seal in the County and State last aforesaid this r
day of November, 2009.
e./ Thalti
IN _rd NAME $h-nit 1-• VARlionct
COMMISSION NO.
EFTA00723169
Case 9:08-cv-80736-KAM Document 14
Entered on FLSD Docket 07/15/2008 Page 1 of 21
Case No. 08-80736-Civ-Marra/Johnson
Petitioner.
IN SUPPORT OF UNITED STATES' RESPONSE
1Q/LCIM'jjiMERGENCirEIMDAEQREIEWICEMEMT
QF CRIME VICTIM RIGHTS ACT, 18 U.S.C. § 3771
I.
1, A. Marie Villafatia, do hereby declare that I am a member in good standing
of the Bar of the State of Florida. 1 graduated from the University of California at Berkeley
School of Law (Boalt Hall) in 1993. After serving as a judicial clerk to the lion. /)avid F.
Levi in Sacramento, California, I was admitted to practice in California in 1995. I also am
admitted to practice in all courts of the states of Minnesota and Florida, the Eighth, Eleventh,
and Federal Circuit Courts of Appeals, and the U.S. District Courts for the Southern District
of Florida, the District of Minnesota, and the Northern District of California. My bar
admission status in California and Minnesota is currently inactive. I am currently employed
as an Assistant United States Attorney in the Southern District of Florida and was so
employed during all of the events described herein.
-ORBIT Na
a—"4"0"^swom--4:itranItecctsta
EFTA00723170
Case 9:08-cv-80736-KAM Document 14 Entered on FLSD Docket 07/15/2008 Page 4 of 21
%kr'
%est
7.
Although individual victims were not consulted regarding the agreement,
several had expressed concerns regarding the exposure of their identities at trial and they
desired a prompt resolution of the matter. At the time the agreement was signed in
September 2007, ■. was openly hostile to the prosecution of Epstein. The FBI attempted
to interview ■
in October 2007, at which time she refused to provide any information
regarding Jeffrey Epstein. None of Attorney Edwards' clients had expressed a desire to be
consulted prior to the resolution of the federal investigation.
-4-
EFTA00723171
Case 9:08-cv-80736-KAM Document 14 Entered on FLSD Docket 07/15/2008 Page 6 of 21
"%,i
11.
On Friday, June 27, 2008, at approximate 4:15 p.m., your Affiant received a
copy of the proposed state plea agreement and learned that the plea was scheduled for 8:30
a.m., Monday, June 30, 2008. Your Affiant and the Palm Beach Police Department
attempted to provide notification to victims in the short time that Epstein's counsel had given
us. Although all known victims were not notified, your Affiant specifically called attorney
Edwards to provide notice to his clients regarding the hearing. Your Affiant believes that
it was during this conversation that Attorney Edwards notified me that he represented ■.,
and 1 assumed that he would pass on the notice to her, as well. Attorney Edwards informed
your Affiant that he could not attend but that someone would be present at the hearing. Your
Affiant attended the hearing, but none of Attorney Edwards' clients was present.
12.
On today's date, your Affiant provided the attached victim notifications to
and
via their attorney, Bradley Edwards (Exs. 6 & 7). A notification was not
provided to ■.
because the U.S. Attorney's modification limited Epstein's liability to
victims whom the United States was prepared to name in an indictment. In light of M's
prior statements to law enforcement, your Affiant could not in good faith include ■. as a
victim in an indictment and, accordingly, could not include her in the list provided to
Epstein's counsel.
13.
Furthermore, with respect to the Certification of Emergency, Attorney Edwards
did not ever contact me prior to the filing of that Certification to demand the relief that he
requests in his Emergency Petition. On the afternoon of July 7, 2008, after your Affiant had
-6-
EFTA00723172
Case 9:08-cv-80736-KAM Document 14 Entered on FLSD Docket 07/15/2008 Page 7 of 21
Noe
already received the Certification of Emergency and Emergency Petition, I received a letter
from Attorney Edwards that had been sent, via Certified Mail, on July 3, 2008. While that
letter urges the Attorney General and the United States Attorney to consider "vigorous
enforcement" of federal laws with respect to Jeffrey Epstein, it contains no demand for the
relief requested in the Emergency Petition.
14.
1 declare under penalty of perjury, pursuant to 28 U.S.C. § 1746 that the
foregoing is true and correct to the best of my knowledge and belief.
Executed this
day of July, 2008.
A. Mane
afaila, sq.
-7-
EFTA00723173