Case: 13-12923

Case: 13-12923 Date Tied 66112/2013 Page: 1 of 23 Nos. 13-12923, 13-12926, 13-12928 IN THE Einiteb ibtateo Court of appeato FOR THE ELEVENTH CIRCUIT JANE DOE NO. 1 AND JANE DOE NO. 2, Plaintii9's-Appellees v. UNITED STATES OF AMERICA, Defendant-Appellee ROY BLACK ET AL., Intervenors-Appellants OPPOSITION TO MOTION FOR STAY OF DISTRICT COURT DISCOVERY ORDER PENDING APPEAL AND REQUEST FOR AN EXPEDITED RULING Bradley J. Edwards FARMER, JAFFEE, WEISSING EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Ave., Suite 2 Fort Lauderdale, FL 33301 (954) 524-2820 [email protected] Paul G. Cassell S. J. Quinney College of Law at the University of Utah 332 S. 1400 E., Room 101 Salt Lake City, UT 84112 (801) 585-5202 [email protected] Attorneys for Plaintiffs-Appellees Jane Doe No.1 and Jane Doe No. 2 EFTA01072101 Case: 13-12923 Date Writ 611112/2013 Page: 2 of 23 OPPOSITION TO MOTION FOR STAY OF DISTRICT COURT DISCOVERY ORDER PENDING APPEAL AND REQUEST FOR AN EXPEDITED RULING INTRODUCTION Appellees Jane Doe No. 1 and Jane Doe No. 2 ("the victims") respectfully file this opposition to the motion for a stay pending appeal filed by intervenors- appellants' Roy Black, Jeffrey Epstein and Martin Weinberg (collectively referred to as "Epstein"). At issue is correspondence between federal prosecutors and Epstein's criminal defense attorneys concerning plea negotiations. The victims have alleged that this correspondence is necessary to establish a factual record to rule on their petition alleging violations of their rights under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771(a). The district court has agreed, entering a discovery order requiring the Government to produce its copies of the correspondence to the victims on July 19, 2013. Epstein filed a notice of interlocutory appeal from that order and sought a stay in the district court below pending review by this Court. The district court denied Epstein's motion for a stay, finding no likelihood of success on the merits as well as no balance of equities weighing in favor of granting the stay. Epstein now asks this Court to overrule the district court and enter its own stay pending EFTA01072102 Case: 13-12923 Date Rad 611112/2013 Page: 3 of 23 appeal, claiming that he will prevail on his claim that correspondence his attorneys sent to federal prosecutors is somehow "privileged and confidential" (Stay Motion at 1) and thus barred from disclosure by the Government. Epstein has no likelihood of success on the merits of that spurious claim. Nor can he carry his burden on any of the other factors necessary to obtain a stay pending appeal. According, this Court should deny Epstein's request for a stay. This Court should do so on an expedited basis, ruling on or before July 19, 2013 so as not to disrupt on-going district court proceedings. FACTUAL BACKGROUND This interlocutory appeal arises from a petition filed in the district court by two acknowledged crime victims, Jane Doe No. 1 and Jane Doe No. 2. In their petition, they sought to enforce their rights under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, in connection with federal sex offenses committed against them by Jeffrey Epstein. As described at greater length in their pending motion to dismiss,' in a petition filed on July 9, 2008, the victims' alleged that the Government violated its obligations under the CVRA to confer with them regarding a non-prosecution agreement (NPA) it negotiated with Jeffrey Epstein. The victims have spent many months attempting to negotiate with the Government to reach an agreed statement of facts concerning these negotiations. But the See Victims' Motion to Dismiss Non-Party Interlocutory Appeal (filed July 2, 2013). 2 EFTA01072103 Case: 13-12923 Date FOItcif 6412/2013 Page: 4 of 23 Government ultimately refused to stipulate to any facts regarding how it treated the victims during the negotiation process. DE 49 at 1-7. Accordingly, on March 21, 2011, the victims filed a Motion for Finding of Violations of the CVRA and a supporting statement of proposed facts, with many of allegations relating to the Government's negotiations of the NPA. DE 48. The victims also filed a motion to have their facts accepted because of the Government's failure to contest their facts. DE 49. The victims finally filed a motion to use the correspondence that they had previously received from Epstein in their civil case in their CVRA case. DE 51. On April 7, 2011, Epstein's criminal defense attorneys — appellants Roy Black and Martin Weinberg — filed a motion for limited intervention in the case, arguing that their right to confidentiality in the correspondence would be violated if the victims were allowed to use the correspondence. Jeffrey Epstein also later filed his own motion to intervene to object to release of the correspondence. DE 93. Epstein and his attorneys ultimately filed a motion for a protective order, asking the Court to bar release of the correspondence. DE 160. 2 At no point, however, did Epstein or his attorneys provide any affidavits or other factual information establishing that the correspondence was confidential. While these intervention motions were pending, on September 26, 2011, the 2 In the district court, the Government did not oppose the victims' efforts to use the correspondence to prove their case. See Hearing Tr. Aug 12, 2011, at 65-68. 3 EFTA01072104 Case: 13-12923 Date Feredf 611112/2013 Page: 5 of 23 district court partially granted the victims' motion for a finding of violations of the CVRA, rejecting the Government's argument that it did not have to provide CVRA rights to the victims during negotiation of the NPA because it had not formally indicted Epstein. DE 99 at 10. The Court then observed that it needed a factual record on which to proceed: "Having determined that as a matter of law the CVRA can apply before formal charges are filed, the Court must address whether the particular rights asserted here attached and, if so, whether the U.S. Attorney's Office violated those rights. However, the Court lacks a factual record to support such findings and must therefore defer ruling on these two issues pending . . . limited discovery . . . ." DE 99 at 10. Based on the Government's concession that it was empowered to do so, the court also authorized the victims to conduct limited discovery in the form of requests for production of documents and requests for admissions directed to the U.S. Attorney's Office, with leave for either party to request additional discovery as appropriate. DE 99 at 11. The victims then requested discovery from the Government, including correspondence between the Government and Epstein's attorney regarding the non-prosecution agreement. On November 8, 2011, the day on which the Government was due to produce discovery, it instead moved to dismiss the entire CVRA proceeding for alleged lack of subject matter jurisdiction (DE 119), and obtained a stay of 4 EFTA01072105 Case: 13-12923 Date Fgedf 611112/2013 Page: 6 of 23 discovery pending resolution of that motion (DE 121, 123). On March 29, 2012, the district court turned to the motions to intervene, granting both Epstein's motion to intervene (DE 159) and his attorneys' motion to intervene (DE 158). The Court emphasized, however, that the question of the merits of the objections raised remained to be determined. After additional pleadings and motions, on June 18, 2013, the district court denied Epstein's motion to bar release of the plea bargain correspondence by the Government. DE 188. The district court began by noting that the same arguments that Epstein was raising to bar disclosure of the correspondence had previously been rejected in one of the victims' parallel federal civil lawsuits. Id. at 3-4. The district court then rejected Epstein's argument that the correspondence was protected under Fed. R. Evid. 410, because that Rule by its on terms does not apply in situations where a defendant later pleads guilty. Id. at 4-5. The district court next rejected Epstein's argument that it should invent a new "plea negotiations" privilege that would apply to the correspondence. The district court explained that "Congress has already addressed the competing policy interests raised by plea discussion evidence with the passage of the plea-statement rules found at Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410, which generally prohibits admission at trial of a defendant's statements made during plea discussions, without carving out any special privilege relating to plea discussion materials. Considering the 5 EFTA01072106 Case: 13-12923 Date ROW( 69112/2013 Page: 7 of 23 Congressional forbearance on this issue — and the presumptively public nature of plea agreements in this District —, this court declines the intervenors' invitation to expand Rule 410 by crafting a federal common law privilege for plea discussions." DE 188 at 7-8. The next day, the district court entered a detailed written opinion denying the Government's motion to dismiss. DE 189. In light of the conclusion that the case should move forward, the District Court explained that it was then "obligated to decide whether, as crime victims, petitioners have asserted valid reasons why the court should vacate or re-open the non-prosecution agreement reached between Epstein and the [U.S. Attorney's Office]. Whether the evidentiary proofs will entitle them to that relief is a question properly reserved for determination upon a fully developed evidentiary record." DE 189 at 11-12. The Court then entered on order lifting its previous stay of discovery, and ordering the Government to begin to produce the requested discovery, including the correspondence. DE 190. It directed the Government to produce discovery no later than July 19, 2013 and established a schedule for resolving future discovery issues. Id. at 3. On June 27, 2013, Epstein and his attorneys filed notices of appeal from the district court's denial of efforts of block release of the plea bargain correspondence. DE's 194-96. On July 2, 2013, the victims filed a motion to dismiss Epstein's interlocutory appeal, explaining that this Court lacked 6 EFTA01072107 Case: 13-12923 Date FOBedt 68712/2013 Page: 8 of 23 jurisdiction in light of Mohawk Industries v. Carpenter, 558 U.S. 100 (2009). On June 26, 2013, Epstein sought a stay of the district court pending appeal. DE 193. Two days later, the victims opposed the stay. DE 198. On July 8, 2013, the district court denied Epstein's motion for a stay pending appeal. DE 206.3 The district court explained that the "granting of a motion to stay pending appeal is an extraordinary remedy granted only on a showing of a `probable likelihood of success on the merits on appeal,' or upon a lesser showing of a `substantial case on the merits when the balance of the equities weighs heavily in favor of granting the stay.'" DE 206 at 2 (citing United States v. Hamilton, 963 F.2d 322 (11th Cir. 1992) (internal quotations omitted)). Citing relevant caselaw, the district court found that Epstein had "neither demonstrated a probable likelihood of success on the merits on appeal . . . nor that the balance of equities weighs heavily in favor of granting a stay." DE 206 at 2-3. The District Court accordingly denied the stay. To give this Court an opportunity to review the issue, however, the district court allowed Epstein until July 15, 2013, to seek a stay from this Court. Contingent on such an application for a stay, the district court entered a "temporary" stay that "shall remain in effect pending the Eleventh Circuit's disposition of [Epstein's] application for [a] stay" before this Court. DE 206 at 3. On July 12, 2013, Epstein filed his motion for stay with this Court. This 3 A copy of the district court's order is attached to this response at Attachment A. 7 EFTA01072108 Case: 13-12923 Date Rliecif 69112/2013 Page: 9 of 23 opposition from the victims follows. ARGUMENT The litigation below has been under the careful management of the district court for more than five years. A critical factual dispute has arisen about how the Government treated the victims during the plea negotiation process, which has led the district court to direct the Government to provide certain correspondence to the victims relevant to that issue. The district court carefully considered Epstein's arguments against releasing that correspondence, ruling against Epstein on the merits in detailed written opinion. DE 188. The district court has also rejected Epstein request for a stay. DE 206. This Court should give considerable weight to the district court's assessment of the merits of Epstein's claim, as well as the district court's conclusion that no stay is currently required, and reject Epstein's efforts to obtain a stay here. Epstein has no chance of success on the merits of his claims and the equities all weigh in favor of the victims. This Court should also expedite its ruling on Epstein's request for a stay to avoid disrupting on-going district court proceedings. I. A STAY PENDING AN INTERLOCUTORY APPEAL IS AN EXCEPTIONAL REMEDY THAT REQUIRES AN EXCEPTIONAL SHOWING. Epstein has asked this Court to jump into the middle of a long-running case and stay a district court discovery order directed at the Government. He also asks 8 EFTA01072109 Case: 13-12923 Date F(Cliftlot)M2/2013 Page: 10 of 23 this Court to do so on an emergency, interlocutory basis. Of course, this is an exceptional request that requires an exceptional justification. District court judges "play a special role in managing ongoing litigation. The district judge can better exercise [his or her] responsibility [to police prejudgment tactics of litigants] if the appellate courts do not repeatedly intervene to second-guess prejudgment rulings." Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (internal citations omitted). This Court has repeatedly explained its reluctant to grant a stay pending appeal: "The grant of an emergency motion to stay a district court's order is an exceptional remedy, which will be granted only upon a showing that: (1) the movant is likely to prevail on the merits on appeal; (2) absent a stay, the movant will suffer irreparable damage; (3) the non-movant will suffer no substantial harm from the issuance of the stay; and (4) the public interest will be served by issuing the stay." Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986) (emphases added). This Court has also explained that "[o]rdinarily, the first factor is the most important and, in order to find a likelihood of success on the merits, we must find that the district court's decision was clearly erroneous." Id. (emphasis added). Absent being able to establish the first factor, a movant for a stay can obtain relief only upon a "showing of a substantial case on the merits [and] . . . the balance of the equities [identified in factors 2, 3, and 4] weighs heavily in favor of granting 9 EFTA01072110 Case: 13-12923 Date F(fladoDM2/2013 Page: 11 of 23 the stay." Id. at 1454 (internal quotation omitted). In this case, Epstein cannot show that any of the factors weigh in his favor, much less that exceptional relief is appropriate. Accordingly, this Court should deny his requested stay. II. EPSTEIN CANNOT CARRY HIS BURDEN OF DEMONSTRATING A LIKELIHOOD OF PREVAILING ON THE MERITS OF HIS NOVEL ARGUMENTS. To even describe Epstein's claim is to demonstrate how far-fetched it is. The argument Epstein is pressing before this Court is that correspondence his defense attorneys sent to federal prosecutors is somehow "privileged and confidential" and therefore the district court cannot order the Government to release it as part of discovery. Epstein is not asserting that he had a confidential relationship with an ally, such as his defense attorney, his doctor, or his psycho- therapist; to the contrary, Epstein is asserting that he had such relationship with his adversary — federal prosecutors who were trying to convict him of numerous sex offenses. The district court properly rejected that dubious claim and Epstein has no likelihood of success before this Court. In an effort to make his claim seem plausible, Epstein contends that the district court's decision drastically reshapes the landscape of criminal settlement negotiations by eliminating expectations of privacy on which criminal defense attorneys rely. Stay Mot. at 7-8. Not so. It is unclear why a defense attorney I0 EFTA01072111 Case: 13-12923 Date F(ClatiotR142/2013 Page: 12 of 23 would think that something he said to his adversary in litigation — a prosecutor — would somehow be confidential. In any event, under the Crime Victims' Rights Act, crime victims are plainly entitled to "confer" with prosecutors about important stages of criminal proceedings, including plea proceedings. See 18 U.S.C. § 3771(a)(5). If Epstein and other defense attorneys want to engage in plea discussions with federal prosecutors,4 they must now be aware that prosecutors will confer with victims about these plea arrangements. Indeed, the Attorney General has promulgated guidelines requiring such conferences. See U.S. DEPT. OF JUSTICE, ATTORNEY GENERAL GUIDELINES FOR VICTIM-WITNESS ASSISTANCE 41 (2012) ("Federal prosecutors should be available to confer with victims about major case decisions, such as . . . plea negotiations . . . ."). Moreover, the plea negotiations in this case were far from ordinary. The victims have alleged, with very specific evidence, that Epstein negotiated with prosecutors to arrange violations of the Crime Victims' Rights Act. See DE 48 at 7-17 .5 Regardless of whether these allegations are true,6 criminal defense attorneys can hardly complain when they crime victims seek to learn about negotiation on the subject of notifications to crime victims. 4 • It is well settled that "there is no constitution right to plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977). s A copy of the victims' pleading is attached to this response at Attachment B. 6 Epstein has never contested these allegations and at this early stage in the proceedings that allegations must be assumed to be true. II EFTA01072112 Case: 13-12923 Date F(CIE3JoIREC)2/2013 Page: 13 of 23 Epstein also contends that his correspondence with prosecutors somehow falls within the "heartland" of Rule 410 of the Federal Rules of Evidence. Stay Motion at 1. But he fails to demonstrate that the correspondence falls within the text of the Rule. As the District Court carefully explained, the rule only protects communications when no guilty plea was reached. But "[t]he communications between Epstein's counsel and federal prosecutors at issue here ultimately did result in entry of a plea of guilty by Epstein — to specific state court felony charges — thereby removing the statements from the narrow orbit of `statement[s] made during plea discussions . . . if the discussions did not result in a guilty plea . . . which are inadmissible in proceedings against the defendant making them under Rule 410." DE 188 at 5 (emphasis added) (citing United States v. Paden, 908 F.2d 1229, 1235 (5th Cir. 1990) (statements made during negotiations that resulted in a final plea of guilty not protected under Rule 410), cert. denied, 498 U.S. 1039 (1991)). Perhaps recognizing the weakness of his argument based on Rule 410, as a fallback argument Epstein asked the district court to create a brand new privilege for "communications in the course of settlement/plea negotiations." DE 193 at 10. But as the district court carefully explained: "Congress has already addressed the competing policy interests raised by plea discussion evidence with the passage of the plea-statement rules found at Fed. R. Crim. P. 11(0 and Fed. R Evid. 410, 12 EFTA01072113 Case: 13-12923 Date F(CletoIRM2/2013 Page: 14 of 23 which generally prohibits admission at trial of a defendant's statements made during plea discussions, without carving out any special privilege relating to plea discussion materials. Considering the Congressional forbearance on this issue — and the presumptively public nature of plea agreements in this District —, this court declines the intervenors' invitation to expand Rule 410 by crafting a federal common law privilege for plea discussions." DE 188 at 9 (collecting supporting authorities). Finally, it is worth underscoring that entirely apart from the merits of Epstein's appeal, whether he can even take an interlocutory appeal at this stage in the proceedings is contested. In their pending motion to dismiss, the victims have explained at length why Epstein is not able to take an interlocutory appeal to this Court. In rejecting Epstein's motion for a stay, the district court properly recognized that "[t]here is also a substantial question as to whether the denial of a motion for a protective order against compelled disclosure of allegedly privileged communications is immediately appealable . . . ." DE 206 at 2 n.2. For this reason alone, Epstein cannot show a likelihood of success on the merits of his interlocutory appeal. In sum, far from being clearly erroneous, the district court's rejection of Epstein's claim was clearly correct. Epstein thus falls far short of carrying his burden to obtain a stay. 13 EFTA01072114 Case: 13-12923 Date F(IfEdo06042/2013 Page: 15 of 23 III. EPSTEIN WILL NOT SUFFER IRREMEDIABLE HARM FROM DISCLOSURE OF THE CORRESPONDENCE TO THE VICTIMS. Epstein's motion for a stay also founders on the fact that he will not suffer "irreparable injury" from the district court's order directing the Government to produce the materials. Epstein's pleading alludes to the importance of confidentiality in the plea bargaining process generally. But he never specifically explains how turning over the correspondence to counsel for the victims will specifically harm him. It is not enough for Epstein to show that he does not want the victims to read the correspondence. Epstein must present evidence that he will be injured — and injured irreparably — if the victims read the correspondence. See, e.g., Northeastern Florida Chapter of Ass 'n of General Contractors of America v. City of Jacksonville, Fla., 896 F.2d 1283, 1286 (11th Cir. 1990) ("Because plaintiff presented no evidence on the issue, we cannot agree that irreparable injury is `apparent"'.). As the Government properly explained below, a claimant asserting a privilege involving alleged confidential communications bears the burden of demonstrating the alleged confidentiality of that relationship. DE 98 at 3. Yet despite the clear fact that the burden lies on Epstein to provide evidence of the alleged confidentiality of his discussions with federal prosecutors, he never presented any evidence on that point — much less the required point that breaching that confidentiality would cause irreparable harm. Of course, an appeal is too late 14 EFTA01072115 Case: 13-12923 Date RthrtdoD913)2/2013 Page: 16 of 23 in the day to build the appropriate evidentiary record that the correspondence was confidential.' In an effort to prove irreparable injury, Epstein cites various authorities about "confidential" documents. See stay Stay Motion at 17 n.3 But none of these cases involved anything remotely like what Epstein is attempting to assert is "confidential" here: discussions not with his friends but with foes — i.e., criminal prosecutors seeking to force him to plead guilty to criminal charge. Moreover, the cases Epstein relies upon are older cases, decided before the Supreme Court's recent decision in Mohawk. The Mohawk decision makes clear that even as to highly sensitive attorney-client materials, "[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected materials and its fruits are excluded from evidence." 130 S.Ct. at 606-07. In short, Epstein has not shown that he will suffer injury from the district court's order, much less irreparable injury. IV. THE VICTIMS WILL BE PREJUDICED BY A STAY. ' Any evidentiary record would also have to consider the fact that that the victims' counsel have already seen significant parts of the correspondence in July 2011, when Magistrate Judge Johnson ordered it produced in a parallel civil lawsuit. DE 188 at 3. 15 EFTA01072116 Case: 13-12923 Date F(cle7doIRM2/2013 Page: 17 of 23 Epstein next contends that the victims will not be a prejudiced by a stay. Stay Motion at 17-18. In advancing his arguments, Epstein makes inaccurate representations about the course of these proceedings over the last several years — representations the victims do not concede.s What is relevant to the stay motion at hand is Epstein's suggestion that the victims have no real need for the correspondence. But as Epstein knows, the district court has found that the existing record is insufficient to grant the victims any relief at this time (DE 99 at 11; DE 189 at 11-12), which is one of several reasons why the victims need the correspondence to move forward with their case. Epstein also suggests that the victims have been slow in moving their case forward. But as the district court was well aware, much of the delay in this case has come from intransigence of the Government, which has strung out negotiations about what the facts are in this case. See DE 49 at 1-7. The Government also obtained a stay of the proceedings below for more than one-and-a-half years (DE 121 and 123, discussed in DE 189 at 5), which was only recently lifted. Most significantly, Epstein does not discuss the fact that the victims are being prejudiced by any further delay in this case. As Epstein is no doubt aware, 8 For example, Epstein claims that the victims conceded that the victims conceded there was no need to proceed on an emergency basis. Stay Motion at 5. But this early proceeding occurred just a few days into the litigation, before the victims even knew about the existence of the secret non-prosecution agreement that has since been revealed to them. 16 EFTA01072117 Case: 13-12923 Date ITIEtIoD6412/2013 Page: 18 of 23 the applicable statute of limitations for prosecuting him for his federal sex abuse crimes appears to be ten years. 18 U.S.C. § 3283. Epstein sexually abused Jane Doe #1 and Jane Doe #2 (and dozens of other similarly situated young girls) from 2002 to 2005. As a result, if Epstein can succeed in stalling this case for another two years, then he will have successfully "run out the clock" on his criminal liability. Every week that goes by is effectively another criminal charge that Epstein has avoided. As a result, the victims are irreparably harmed in their ability to seek prosecution of Epstein by any further delay in resolution of their case. V. THE PUBLIC INTEREST WILL NOT BE SERVED BY ALLOWING EPSTEIN TO APPEAL. Epstein finally claims that a delaying this case through a stay is somehow in the public interest. Stay Motion at 19-20. But nothing could be further from the truth. A stay will only serve to delay the victims' effort to vindicate their rights under the CVRA, a clear indication that the public interest is not being served. See United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012) ("Frustration of federal statutes and prerogatives are not in the public interest . . . ."). Moreover, the public is keenly interested in having the victims' allegations resolved. The fundamental issue in this case is just how it was possible for a politically-connected billionaire who had sexually abused dozens of young girls to obtain a sweetheart plea deal with the federal government in which he served little prison time. See, e.g., Abby Goodnough, Questions of Preferential Treatment Are 17 EFTA01072118 Case: 13-12923 Date Rilkaiol:68)2/2013 Page: 19 of 23 Raised in Florida Sex Case, N.Y. Times, Sept. 3, 2006, at 19 (noting questions that the public had been left "to wonder whether the system tilted in favor of a wealthy, well-connected alleged perpetrator and against very young girls who are alleged victims of sex crimes").9 Denying a stay will not begin to answer all of the public's questions about this case. But it will at least move this case one step closer to resolution, which is what the public interest demands. VI. TO AVOID INTERFERING WITH THE ON-GOING PROCEEDINGS BELOW, THIS COURT SHOULD DENY EPSTEIN'S STAY BY JULY 19, 2013, OR AS SOON THEREAFTER AS POSSIBLE. The order that Epstein seeks to stay directs the Government to produce the correspondence at issue by July 19, 2013. DE 190 at 2. There is a need for a quick ruling on whether to stay that order. To permit this Court to review the question, the district court has entered a temporary stay pending disposition of Epstein's stay request before this Court. The district court's "temporary" stay will continue indefinitely until this Court rules, functionally giving Epstein a stay for as long as Indeed, the interest in the matter is strong enough that the widely-viewed television program Law and Order: Special Victim Unit devoted an episode to it recently, suggesting in its plot that federal government had intervened improperly to prevent effective prosecution. See Law & Order Commemorates Jay Epstein Taste for Teen Hookers, http://gawker.comM5751094/law--order- commemorates-jeffrey-epsteins-taste-for-teen-hookers. Also, there is strong media interest in the case, because of the "growing scandal over the friendship that Prince Andrew, 51, fourth in line for the throne, has maintained with the multimillionaire, a registered sex offender [Jeffrey Epstein]." Jose Lambiet, Prince's Friendship with Pedophile Causes Furor Across the Pond, Palm Beach Post, Mar. 9, 2011, at 2B. 18 EFTA01072119 Case: 13-12923 Date 1:020:1001142/2013 Page: 20 of 23 proceedings continue before this Court — even though the district court has held that Epstein is not entitled to any stay and even though the burden of proving entitlement to a stay rests on him as the moving party. Arkansas Peace Center v. Arkansas Dept of Pollution Control, 992 F.2d 145 (8th Cir. 1993). As part of the discovery order that Epstein challenges, the district court has also crafted a briefing schedule to resolve outstanding discovery issues to begin to bring this case towards resolution. DE 190 at 3-4. Production of the correspondence is an important part of that schedule. If Epstein succeeds in extending the "temporary" stay beyond July 19, that delay could thwart that schedule and obstruct the district court's ability to resolve the pending discovery issues. Under the CVRA, the victims have a right to have the district court "take up and decide any motion asserting a victim's right forthwith." 18 U.S.C. § 3771(d)(3). Yet because of delays created by the Government and Epstein, the victim have yet to have a ruling on their petition, which they filed in 2008. This Court should not further extend the delay in this case, but instead should rule on Epstein's motion on or before July 19, so as not to interfere with the district court's ability to manage this case. 19 EFTA01072120 Case: 13-12923 Date MdoDM2/2013 Page: 21 of 23 CONCLUSION For all the foregoing reasons, the Court should deny Epstein's request for a stay of the district court's discovery order. The Court should rule on or before July 19, 2013. DATED: July 12.2013 20 EFTA01072121 Case: 13-12923 Date F0RZA:16742/2013 Page: 22 of 23 Respectfully Submitted, Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: [email protected] and Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 Florida Bar No.: 542075 E-mail: [email protected] (Application for admission to the Eleventh Circuit bar pending) Attorneys for Jane Doe No. I and Jane Doe No. 2 EFTA01072122 Case: 13-12923 Date Olio09E2/2013 Page: 23 of 23 CERTIFICATE OF SERVICE The foregoing document was served on July 12, 2013, on the following using the Court's CM/ECF system: Dexter Lee A. Marie Villafatia Assistant U.S. Attorneys 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: [email protected] E-mail: [email protected] Attorneys for the Government Roy Black, Esq. Jackie Perczek, Esq. Black, Srebnick, Kornspan & Stumpf, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, FL 33131 E-mail: [email protected] E-mail: [email protected] (305) 37106421 (305) 358-2006 Martin G. Weinberg Martin G. Weinberg, PC 20 PARK PLZ STE 1000 Boston, MA 02116-4301 Email: [email protected] (617) 227-3700 Paul G. Cassell EFTA01072123 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 1 of 3 Case: 13-12923 Date (2illocif 68112/2013 Page: 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA JANE DOE I AND JANE DOE 2, petitioners, VS. UNITED STATES OF AMERICA, defendant. ORDER DENYING INTERVENORS' MOTION TO STAY PENDING APPEAL AND IMPOSING TEMPORARY SEVEN (7) DAY STAY PENDING APPELLATE REVIEW OF ORDER DENYING MOTION FOR STAY THIS CAUSE is before the court on the motion of Intervenors Roy Black, Martin Weinberg, Jay Lefkowitz and Jeffrey Epstein, for a stay of this court's order entered June 18, 2013 compelling disclosure of communications between intervenors and federal prosecutors in the Southern District of Florida [DE 193], together with petitioners' response in opposition to the request for stay [DE 198]. Intervenors appeal the June 18, 2013 order contesting this court's determination that the communications in question are not shielded from compelled disclosure in this Crime Victims Rights Act ("CVRA") proceeding by principles of work product privilege; grand jury secrecy; restrictions on the admissibility of statements made during plea discussions under circumstances prescribed by Fed. R. Evid. 410, or the crafting of a new common law privilege under Fed. R. Evid. 501. Intervenors ask the court to stay this order pending the outcome of an interlocutory appeal contemporaneously lodged by Intervenors Roy Black, Jeffrey Epstein and Martin Weinberg [DE 194, 195 and 196] . EFTA01072124 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 2 of 3 Case: 13-12923 DateWed 68712/2013 Page: 2 of 3 The granting of a motion to stay pending appeal is an extraordinary remedy granted only on a showing of a "probable likelihood of success on the merits on appeal," or upon a lesser showing of a "'substantial case on the merits' when 'the balance of the equities weighs heavily in favor of granting the stay.'" ' United States v. Hamilton, 963 F.2d 322 (11'h Cir. 1992), citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11'h Cir. 1986)(quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5'h Cir. 1981), cert. den., 460 U.S. 1042 (1983). In this case, intervenors have neither demonstrated a probable likelihood of success on the merits on appeal, 2 see e.g. In re MSTG, Inc., 675 F.3d 1337 (71h Cir. 2012) (rejecting request for recognition of new privilege for settlement discussions; finding need for confidence and trust alone insufficient reason to create a new privilege, and noting that Congress, in enacting Fed. R. Civ. Evid. 408, governing admissibility of statements made during "compromise negotiations, " did not take additional step of protecting settlement negotiations from discovery); In re Qwest Communications International, Inc., 450 F.3d 1179 (10th Cir. 2006) (noting circuit courts' near Absent being able to establish the likelihood of success on the merits, a movant for emergency stay relief must show that the "equities" — measured by whether movant will suffer irreparable damage absent a stay; whether the nonmoving party will suffer no substantial harm from issuance of a stay and whether the public interest will be served by issuing the stay — all tip strongly in his or her favor. Robles Antonio v. Barrios Bello, 2004 WL 1895123 (11th Cir. 2004), citing Garcia - Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). Intervenors fail to make this alternative lesser showing as well. 2 There is also a substantial question as to whether the denial of a motion for protective order against compelled disclosure of allegedly privileged communications is immediately appealable under the Perlman doctrine, which derives from the criminal grand jury context, Penman v United States, 247 U.S. 7 (1918), as urged by intervenors as the jurisdictional premise for their interlocutory appeal. See e.g. United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1206-1209 (10ih Cir., May 6, 2013) (questioning limited scope and vitality of Perlman following Mohawk Industries v. Carpenter, 558 U.S. 100, 130 S. Ct. 599, 175 L. Ed.2d 458 (2009) (class of collaterally appealable orders does not extend to disclosure orders adverse to attorney-client privilege) and cases cited infra. EFTA01072125 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 3 of 3 Case: 13-12923 Date Rifedf 69)12/2013 Page: 3 of 3 unanimous rejection of selective waiver concept as applied to attorney-client and work-product privileges), nor that the balance of equities weighs heavily in favor of granting a stay. It is therefore ORDERED AND ADJUDGED: I. The Intervenors' motion to stay the court's June 18, 2013 order pending interlocutory appeal [DE 193] is DENIED. 2. However, this court shall temporarily stay its June 18, 2013 compelling disclosure of communications between intervenors and federal prosecutors for a period of seven (7) days from entry of this order, up through and including Monday, July 15, 2013, in order to permit intervenors an opportunity to renew their request for stay relief before the Eleventh Circuit Court of Appeals. If intervenors apply for a stay in the Court of Appeals on or before July 15, 2013, the temporary stay imposed by this order shall remain in effect pending the Eleventh Circuit's disposition of the application for stay. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 6ih day of July, 2013. /en Kenneth A. Marra United States District Judge cc. All counsel EFTA01072126 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 1 of 42 Case: 13-12923 Date Mai:din:012/2013 Page: 1 of 42 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 v. UNITED STATES JANE DOE #1 AND JANE DOE #2'S MOTION FOR FINDING OF VIOLATIONS OF THE CRIME VICTIMS' RIGHTS ACT AND REQUEST FOR A HEARING ON APPROPRIATE REMEDIES COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to move for a finding from this Court that the victims' rights under the Crime Victims Rights Act (CVRA), 18 U.S.C. § 3771, have been violated by the U.S. Attorney's Office, and to request a hearing on the appropriate remedies for these violations. The victims have proffered a series of facts to the Government, which they have failed to contest. Proceeding on the basis of these facts,' it is clear that the U.S. Attorney's Office has repeatedly violated the victims' protected CVRA rights, including their right to confer with prosecutors generally about the case and specifically about a non-prosecution agreement the Office signed with the defendant, as well as their right to fair treatment. See 18 U.S.C. 3771(a)(5) & (8). It is now beyond dispute, for example, that in September 2007, the U.S. Attorney's Office formally signed a non-prosecution agreement with Jeffrey Epstein that barred his The victims are contemporaneously filing a motion to have their facts accepted by the Court. EFTA01072127 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 2 of 42 Case: 13-12923 Date r218atifff8)12/2013 Page: 2 of 42 prosecution for numerous federal sex offenses he committed against the victims (as well as against many other minor girls). Rather than confer with the victims about this non-prosecution agreement, however, the U.S. Attorney's Office and Jeffrey Epstein agreed to a "confidentiality" provision in the agreement barring its disclosure to anyone — including the victims. For the next nine months, as Epstein was well aware, the U.S. Attorney's Office assiduously concealed from the victims the existence of this signed non-prosecution agreement. Indeed, the Office went so far as to send (in January 2008) a false victim notification letter to the victims informing them that the "case is currently under investigation." In fact, the U.S. Attorney's Office had already resolved the case three months earlier by signing the non-prosecution agreement. Again on May 30, 2008, the U.S. Attorney's Office sent yet another victim notification letter to a recognized victim informing her that the "case is currently under investigation" and that it "can be a lengthy process and we request your continued patience while we conduct a thorough investigation." Then in June 2008, on the eve of consummating Epstein's state guilty plea that was part of the non-prosecution agreement, the U.S. Attorney's Office asked legal counsel for the victims to send a letter expressing the victims' views on why federal charges should be filed — not disclosing to the victims' legal counsel that this was a pointless exercise because the non- prosecution agreement had already been signed some nine months earlier. These actions and many more like them constitute clear violations of Jane Doe #1 and Jane Doe #2's rights under the Crime Victims Rights Act, including the right to confer with prosecutors and the right to fair treament. The only argument that the U.S. Attorney's Office advances is that the CVRA does not apply because no indictment was formally filed in this case. But this position is inconsistent with both the CVRA's plain language, see, e.g., 18 U.S.C. § 2 EFTA01072128 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 3 of 42 Case: 13-12923 Date WM(lb'3)12/2013 Page: 3 of 42 3771(c)(1) (Justice Department agencies involved in the "detection" and "investigation" of federal crimes covered by CVRA), and with persuasive case law, see, e.g., In re Dean, 527 F.3d 391, 394 (5th Cir. 2008) (victims should have been notified before pre-indictment plea reached). Moreover, the U.S. Attorney's Office itself was fully aware of its obligations to notify the victims in this case, as e-mails from the Office and other evidence make perfectly clear. The only reason that the Office concealed the existence of the non-prosecution agreement from the victims was not to comply with some legal restriction, but rather to avoid a firestorm of public controversy that would have erupted if the sweetheart plea deal with a politically-connected billionaire had been revealed. The Court should accordingly find that the U.S. Attorney's Office — in coordination with Jeffrey Epstein -- has violated the Act and set a briefing schedule and hearing on the proper remedy for those violations. STATEMENT OF UNDISPUTED MATERIAL FACTS Jane Doe #1 and Jane Doe #2 offer the following statement of undisputed material facts. If the Government disputes any of these facts, the victims request an evidentiary hearing to prove each and every one of them:2 1. Between about 2001 and 2007, defendant Jeffrey Epstein (a billionaire with significant political connections) sexually abused more than 30 minor girls at his mansion in West Palm 2 The Court should accept all these facts as true for reasons the victims explain in their contemporaneously-filed Jane Doe #1 and Jane Doe #2's Motion to Have Their Facts Accepted Because of the Government's Failure to Contest Any of The Facts. The Court should also direct the Government to produce all evidence that it possesses supporting these facts, for reasons the victims explain in their contemporaneously-filed Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence. 3 EFTA01072129 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 4 of 42 Case: 13-12923 Date pleakfabICA2/2013 Page: 4 of 42 Beach, Florida, and elsewhere. Among the girls he sexually abused were Jane Doe #1 and Jane Doe #2. Epstein performed repeated lewd, lascivious, and sexual acts on them, including (but not limited to) masturbation, touching of their sexual organs, using vibrators or sexual toys on them, coercing them into sexual acts, and digitally penetrating them. Because Epstein used a means of interstate commerce and knowingly traveled in interstate commerce to engage in abuse of Jane Doe #1 and Jane Doe #2 (and the other victims), he committed violations of federal law, including repeated violations of 18 U.S.C. § 2422. See, e.g., Complaint, E.W. v. Epstein, Case No. 50 2008 CA 028058 XXXXMB AB (15th Cir. Palm Beach County, Florida); Complaint, L.M. v. Epstein, Case No 50 2008 CA 028051 XXXXMB AB (15th Cir. Palm Beach Count, Florida). 2. 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. Complaint, Jane Doe No. 102 v. Epstein, No. 9:09-CV-80656- KAM (S.D. Fla. May 1, 2009). 3. In 2006, at the request of the Palm Beach Police Department, the Federal Bureau of Investigation opened an investigation into allegations that Jeffrey Epstein and his personal assistants had used facilities of interstate commerce to induce young girls between the ages of thirteen and seventeen to engage in prostitution, among other offenses. The case was presented to the United States Attorney's Office for the Southern District of Florida, which accepted the case for investigation. The Palm Beach County State Attorney's Office was also investigating EFTA01072130 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 5 of 42 Case: 13-12923 Date l kahff0'9]12/2013 Page: 5 of 42 the case. See generally U.S. Attorney's Correspondence, Exhibit "A" to this filing (hereinafter cited as "U.S. Attorney's Correspondence" and referenced by Bates page number stamp). 4. The FBI soon determined that both Jane Doe #1 and Jane Doe #2 were victims of sexual assaults by Epstein while they were minors beginning when they were approximately fourteen years of age and approximately thirteen years of age respectively. Jane Doe #1, for example, provided detailed information about her abuse (and the abuse of Jane Doe #2) to the FBI on August 7, 2007. Exhibit "B." 5. More generally, the FBI through diligent investigation established that Epstein operated a large criminal enterprise that used paid employees and underlings to repeatedly find and bring minor girls to him. Epstein worked in concert as part of the enterprise with others, including Ghislane Maxwell and Jean Luc Brunel, to obtain minor girls not only for his own sexual gratification, but also for the sexual gratification of others. The FBI determined that Epstein had committed dozens and dozens of federal sex crimes against dozens of minor girls between 2001 and 2007. They presented information to the U.S. Attorney's Office for criminal prosecution. See Exhibit "B"; U.S. Attorney's Correspondence at 47-55. 6. On about June 7, 2007, FBI agents hand-delivered to Jane Doe #1 a standard CVRA victim notification letter. The notification promised that the Justice Department would makes its "best efforts" to protect Jane Doe #1's rights, including "[t]he reasonable right to confer with the attorney for the United States in the case" and "to be reasonably heard at any public proceeding in the district court involving . . . plea . . . ." The notification further explained that "(alt this time, your case is under investigation." That notification meant that the FBI had identified Jane Doe #1 as a victim of a federal offense and as someone protected by the CVRA. Jane Doe #1 5 EFTA01072131 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 6 of 42 Case: 13-12923 Date MaiMI93)12/2013 Page: 6 of 42 relied on these representations and believed that the Justice Department would protect these rights and keep her informed about the progress of her case. See Exhibit "C." 7. On about August II, 2007, Jane Doe #2 received a standard CVRA victim notification letter. The notification promised that the Justice Department would makes its "best efforts" to protect Jane Doe #2's rights, including "[Ole reasonable right to confer with the attorney for the United States in the case" and "to be reasonably heard at any public proceeding in the district court involving ... plea .. .." The notification further explained that "[a]t this time, your case is under investigation." That notification meant that the FBI had identified Jane Doe #2 as a victim of a federal offense and as someone protected by the CVRA. Jane Doe #2 relied on these representations and believed that the Justice Department would protect these rights and keep her informed about the progress of her case. See Exhibit "D." 8. Early in the investigation, the FBI agents and an Assistant U.S. Attorney had several meetings with Jane Doe #1. Jane Doe #2 was represented by counsel that was paid for by the criminal target Epstein and, accordingly, all contact was made through that attorney. 9. In and around September 2007, plea discussions took place between Jeffrey Epstein, represented by numerous attorneys (including lead criminal defense counsel Jay Lefkowitz), and the U.S. Attorney's Office for the Southern District of Florida, represented by Assistant U.S. Attorney A. Marie Villafana and others. The plea discussions generally began from the premise that Epstein would plead guilty to at least one federal felony offense surrounding his sexual assaults of more than 30 minor girls. From there, the numerous defense attorneys progressively negotiated more favorable terms so that Epstein would ultimately plead to only two state court 6 EFTA01072132 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 7 of 42 Case: 13-12923 Date €313aW673)12/2013 Page: 7 of 42 felony offenses and would serve only county jail time. Many of the negotiations are reflected in e-mails between Lefkowitz and the U.S. Attorney's Office. See generally Exhibit "A." 10. The evidence supporting these charges was overwhelming, including the interlocking consistent testimony of several dozen. minor girls, all made automatically admissible in a federal criminal sexual assault prosecution by operation of Fed. R. Evid. 414. U.S. Attorney's Correspondence at 4. 12. The correspondence also shows that the U.S. Attorney's Office was interested in finding a place to conclude a plea bargain that would effectively keep the victims from learning what was happening through the press. The Office wrote in an e-mail to defense counsel: all The 7 EFTA01072133 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 8 of 42 Case: 13-12923 Date f314ailfM)12/2013 Page: 8 of 42 U.S. Attorney's Office was aware that most of the victims of Epstein, including Jane Doe #1 and Jane Doe #2, resided well outside the Miami area in the West Palm Beach area. The Office was also aware that the chances of press coverage of a case filed in Miami would be significantly less likely to reach the'Palm Beach area. U.S. Attorney's Correspondence at 29. 13. On about September 24, 2007, the U.S. Attorney's Office sent an e-mail to Jay Lefkowitz, criminal defense counsel for Epstein, regarding the agreement. The e-mail stated that the Government and Epstein's counsel U.S. Attorney's Correspondence at 153 (emphases added). 14. On about September 25, 2007, the U.S. Attorney's Office sent an e-mail to Lefkowitz stating: U.S. Attorney's Correspondence at 156. 15. On about September 26, 2007, the U.S. Attorney's Office sent an e-mail to Lefkowitz in which she stated: 8 EFTA01072134 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 9 of 42 Case: 13-12923 Date O1Sainb1012/2013 Page: 9 of 42 M il Apparently the 'agreed to between the Government and Epstein's defense counsel was that no mention would be made of the non-prosecution agreement between the U.S. Attorney's Office and Epstein, as no subsequent mention was made to the victims of the non-prosecution agreement and a confidentiality provision was made part of that agreement (as discussed below). U.S. Attorney's Correspondence at 359. 16. On about September 25, 2007, the U.S. Attorney's Office sent a letter to Jay Jefkowitz in which it suggested that the victims should be represented in civil cases against Epstein by someone who was not an experienced U.S. Attorney's Correspondence at 157. The U.S. Attorney's Office continued to push a different attorney in part because it would reduce publicity, explaining that Id. 17. On about September 24, 2007, Epstein and the U.S. Attorney's Office formally reached an agreement whereby the United States would defer federal prosecution in favor of prosecution by the State of Florida. Epstein and the U.S. Attorney's Office accordingly entered into a "Non-Prosecution Agreement" (NPA) reflecting their agreement. Most significantly, the NPA gave Epstein a promise that he would not be prosecuted for a series of federal felony offenses involving his sexual abuse of more than 30 minor girls. The NPA instead allowed Epstein to plead guilty to two state felony offenses for solicitation of prostitution and 9 EFTA01072135 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 10 of 42 Case: 13-12923 Date RIBEdoDif8)2/2013 Page: 10 of 42 procurement of minors for prostitution. The NPA also set up a procedure whereby a victim of Epstein's sexual abuse could obtain an attorney to proceed with a civil claim against Epstein, provided that the victim agreed to limit damages sought from Epstein. To obtain an attorney paid for by Epstein, the victim would have to agree to proceed exclusively under 18 U.S.C. § 2255 (i.e., under a law that provided presumed damages of $150,000 against Epstein — an amount that Epstein argued later was limited to $50,000). The agreement was signed by Epstein and his legal counsel, as well as the U.S. Attorney's Office, on about September 24, 2007. Non- Prosecution Agreement, Exhibit "E." 18. Epstein insisted on, and the U.S. Attorney's Office agreed to, a provision in the non- prosecution agreement that made the agreement secret. In particular, the agreement stated: "The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making the disclosure." By entering into such a confidentiality agreement, 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 terms of the agreement — specifically the confidentiality provision. Indeed, even notifying the victims about the agreement would presumably have violated the provision. Accordingly, from September 24, 2007 through at least June 2008 — a period of more than nine months -- the U.S Attorney's Office did not notify any of the victims of the existence of the non-prosecution agreement. Epstein was well aware of this failure to notify the victims and, indeed, arranged for this failure to notify the victims. Id.; U.S. 10 EFTA01072136 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 11 of 42 Case: 13-12923 Date F(0t7dol)68)2/2013 Page: 11 of 42 Attorney's Correspondence at 270; Transcript of Hearing in this case on July 11, 2008, at 4-6, 18-19, 22-23, 28-29 (hereinafter cited as "Tr. July 11, 2008"). 19. A reasonable inference from the evidence is that the U.S. Attorney's Office — pushed by Epstein — wanted the non-prosecution agreement kept from public view because of the intense public criticism that would have resulted from allowing a politically-connected billionaire who had sexually abused more than 30 minor girls to escape from federal prosecution with only a county court jail sentence. Another reasonable inference is that the Office wanted the agreement concealed at this time because of the possibility that the victims could have objected to the agreement in court and perhaps convinced the judge reviewing the agreement not to accept it. 20. The Non-Prosecution Agreement that had been entered into between the U.S. Attorney's Office and Epstein was subsequently modified by an October 2007 Addendum and a December 19, 2007, letter from the U.S. Attorney to Attorney Lilly Ann Sanchez. The U.S. Attorney's Office did not confer with any of the victims about these modifications of the agreement (or even notify them of the existence of these modifications) through at least June 2008 — a period of more than six months. See Supplemental Declaration of A. Marie Villafafia (doc. #35, at 1); U.S. Attorney's Correspondence at 234-37; Tr. July 11, 2008, 18-19, 22-23, 28- 29.3 21. In October 2007, shortly after the initial plea agreement was signed, FBI agents contacted Jane Doe NI. On October 26, 2007, Special Agents E. Nesbitt Kuyrkendal I and Jason Richards met in person with Jane Doe tit. The Special Agents explained that Epstein would 3 On about August 14, 2008, Epstein's defense counsel told the U.S. Attorney's Office that they did not consider the December 19, 2007, letter to be operative. EFTA01072137 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 12 of 42 Case: 13-12923 Date Rfflidof)68)2/2013 Page: 12 of 42 plead guilty to state charges involving another victim, he would be required to register as a sex offender for life, and he had made certain concessions related to the payment of damages to the victims, including Jane Doe #1 . During this meeting, the Special Agents did not explain that an agreement had already been signed that precluded any prosecution of Epstein for federal charges against Jane Doe #1. The agents could not have revealed this part of the non-prosecution agreement without violating the terms of the non-prosecution agreement. Whether the agents themselves had been informed of the existence of the non-prosecution agreement by the U.S. Attorney's Office is not certain. Because the plea agreement had already been reached with Epstein, the agents made no attempt to secure Jane Doe #1's view on the proposed resolution of the case. Exhibit "E," Tr. July 11, 2008 at 4-6, 18-19, 22-23. 22. Jane Doe #1's (quite reasonable) understanding of the Special Agent's explanation was that only the State part of the Epstein investigation had been resolved, and that the federal investigation would continue, possibly leading to a federal prosecution. Jane Doe #1 also understood her own case was move forward towards possible prosecution. Tr. July 11, 2008, at 4-6, 18-19, 22-23, 28-29. 23. On about November 27, 2007, Assistant U.S. Attorney Jeff Sloman sent an e-mail to Jay Lefkowitz, defense counsel for Epstein. The e-mail stated that the U.S. Attorney's Office had an obligation to notify the victims 12 EFTA01072138 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 13 of 42 Case: 13-12923 Date F(0 1O06842/2013 Page: 13 of 42 U.S. Attorney's Correspondence at 255 (emphasis rearranged). 24. On about November 29,2007, the U.S. Attorney's Office sent a draft of a crime victim notification letter to Jay Lefkowitz, defense counsel for Jeffrey Epstein. The notification letter would have explained: The letter then would have gone on to explain that Epstein would The letter would not have explained that, as part of the agreement with Epstein, the Justice Department had previously agreed not to prosecute Epstein for any of the numerous federal offenses that had been committed. U.S. Attorney's Correspondence at 256-59. 25. Because of concerns from Epstein's attorneys, the U.S. Attorney's Office never sent the proposed victim notification letter discussed in the previous paragraph to the victims. Instead, a misleading letter stating that the case was "currently under investigation" (described below) was sent in January 2008 and May 2008. At no time before reaching the non-prosecution agreement did the Justice Department notify any victims, including for example Jane Doe #1, about the non-prosecution agreement. The victims were therefore prevented from exercising their CVRA right to confer with prosecutors about the case and about the agreement. Epstein 13 EFTA01072139 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 14 of 42 Case: 13-12923 Date RilictioD68)2/2013 Page: 14 of 42 was aware of these violations of the CVRA and, indeed, pressured the U.S. Attorney's Office to commit these violations. Tr. July 11, 2008, at 9. 26. On about December 6, 2007, Jeffrey H. Sloman, First Assistant U.S. Attorney sent a letter to Jay Lefkowitz, noting the U.S. Attorney's Office's legal obligations to keep victims informed of thel The letter stated: U.S. Attorney's Correspondence at 191-92 (emphasis added). 27. Despite this recognition of its obligation to keep victims about the non-prosecution agreement, the U.S. Attorney's Office did not follow through and inform the victims of the non-prosecution agreement. To the contrary, as discussed below, it continued to tell the victims that the case was "under investigation." Tr. July 11, 2008, at 4-5, 18-19, 22-29. 28. On December 13, 2007, the U.S. Attorney's Office sent a letter to Jay Lefkowitz, defense counsel for Epstein, rebutting allegations that had apparently been made against the 14 EFTA01072140 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 15 of 42 Case: 13-12923 Date FfiestioD68)2/2013 Page: 15 of 42 AUSA handling the case by the Epstein defense team. (The Justice Department concluded the allegations were meritless.) The letter stated that a federal indictment against Epstein a rir that The letter also recounted U.S. Attorney's Correspondence at 269. 29. The December 13, 2007, letter also reveals that the Justice Department stopped making victim notifications because of U.S. Attorney's Correspondence at 270 (emphasis added). It was a deviation from the Justice Department's standard practice to negotiate with defense counsel about the extent of crime victim notifications. 30. The December 13, 2007, letter also demonstrates that the Justice Department was well aware of who the victims of Epstein's sexual offenses were. The Justice Department was prepared to make notifications to the victims, but suspended those notifications only because objections from defense counsel. Id. 31. The December 13, 2007, letter reveals it would have been possible to confer with the victims about the Non-Prosecution Agreement. The U.S. Attorney's Office was fully able to 15 EFTA01072141 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 16 of 42 Case: 13-12923 Date Relo038)2/2013 Page: 16 of 42 confer with Epstein's counsel about the parameters of the Non-Prosecution Agreement, but refused to confer with Epstein's victims about the Agreement. Id. 32. Following the signing of the Agreement and the modifications thereto, Epstein's performance was delayed while he sought higher level review within the Department of Justice. See U.S. Attorney's Correspondence passim. A reasonable inference from the evidence is that Epstein used his significant political and social connections to lobby the Justice Department to avoid significant federal prosecution. The Justice Department has in its possession internal documents (i.e., phone logs, emails, etc.) that would reveal the event of those lobbying efforts. The Justice Department, however, has refused to make these materials available to the victims. 33. On January 10, 2008, Jane Doe #1 and Jane Doe #2 received letters from the FBI advising them that "Nhis case is currently under investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation." Exhibits "F" & "G." The statement in the notification letter was misleading and, in fact, false. The case was not currently "under investigation." To the contrary, the federal cases involving Jane Doe #1 and Jane Doe #2 had been resolved by the non-prosecution agreement entered into by Epstein and the U.S. Attorney's Office discussed previously. Moreover, the FBI did not notify Jane Doe #1 or Jane Doc #2 that a plea agreement had been reached previously, and that part of the agreement was a non-prosecution agreement with the U.S. Attorney's Office for the Southern District of Florida. Exhibit "E." Whether the FBI was aware of this fact at this time is unclear. In any event, the FBI was acting at the direction of the U.S. Attorney's Office, which clearly did not confer with Jane Doe #1 and Jane Doe #2 about the case and, by concealing the true state of affairs, and failed to treat Jane Doe #1 and Jane Doe #2 with fairness. Epstein was aware of 16 EFTA01072142 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 17 of 42 Case: 13-12923 Date FOS:1°088)2/2013 Page: 17 of 42 these actions of the U.S. Attorney's Office and, indeed, solicited these actions of the U.S. Attorney's Office. U.S. Attorney's Correspondence at 191-92, 270. 34. Jane Doe #1 and Jane Doe #2 relied on the representations of the U.S. Attorney's Office to their detriment. Had they known the true facts of the case — i.e., that Epstein had negotiated a non-prosecution agreement — they would have taken steps to object to that agreement. Tr. July 11, 2008 at 4-6, 18-19, 28-29. 35. Undersigned counsel believes that the FBI was lead to believe that their investigation of Epstein was going to lead to a federal criminal prosecution and that the FBI was also mislead by the U.S. Attorney's office about the status of the case. 36. In early 2008, Jane Doe #1 and Jane Doe #2 believed that criminal prosecution of Epstein was extremely important. They also desired to be consulted by the FBI and/or other representatives of the federal government about the prosecution of Epstein. In light of the letters that they had received around January 10, they believed that a criminal investigation of Epstein was on-going — including investigation into Epstein's crimes against them -- and that they would be contacted before the federal government reached any final resolution of that investigation. Tr. July 11, 2008, at 4-6, 18-19, 22-23, 28-29. 37. On January 31, 2008, Jane Doe #1 met with FBI Agents and AUSA's from the U.S. Attorney's Office. She provided additional details of Epstein's sexual abuse of her. The AUSA's did not disclose to Jane Doe #1 at this meeting (or any other meeting) that they had already negotiated a non-prosecution agreement with Epstein. Exhibit "H." 38. On about February 25, 2008, Assistant U.S. Attorney Sloman sent an e-mail to Jay Lefkowitz, Epstein's criminal defense counsel, explaining that the Justice Department's Child l7 EFTA01072143 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 18 of 42 Case: 13-12923 Date RifleUW3518)2/2013 Page: 18 of 42 Exploitation Obscenity Section (CEOS) had agreed to review Epstein's objections to the proposed plea agreement that had been reached with the U.S. Attorney's Office for the Southern District of Florida. The letter indicated that, should CEOS reject Epstein's objections to the agreement, then U.S. Attorneys Correspondence at 290-91. 39. On May 30, 2008, another of Mr. Edwards's clients who was recognized as an Epstein victim by the U.S. Attorney's Office, received a letter from the FBI advising her that "Milts case is currently under investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation." Exhibit "I." The statement in the notification letter was misleading and, in fact, false. The case was not currently "under investigation." To the contrary, the case had been resolved by the non-prosecution agreement entered into by Epstein and the U.S. Attorney's Office discussed previously. Exhibit "E." 40. In mid-June 2008, Mr. Edwards contacted the AUSA handling the case to inform her that he represented Jane Doe #1 and, later, Jane Doe #2. Mr. Edwards asked to meet to provide information about the federal crimes committed by Epstein against these victims, hoping to secure a significant federal indictment against Epstein. The AUSA and Mr. Edwards discussed the possibility of federal charges being filed. At the end of the call, the AUSA asked Mr. Edwards to send any information that he wanted considered by the U.S. Attorney's Office in determining whether to file federal charges. Because of the confidentiality provision that existed in the plea agreement, Mr. Edwards was not informed that previously, in September 2007, the U.S. Attorney's Office had reached an agreement not to file federal charges. Mr. Edwards was 18 EFTA01072144 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 19 of 42 Case: 13-12923 Date FOSioD58)2/2013 Page: 19 of 42 also not informed that resolution of the criminal matter was imminent. This concealment prevented Edwards From (among other things) exercising his client's CVRA right to confer with the prosecutors about the case. Epstein was aware of this concealment — and, indeed, sought this concealment. Tr. July 11, 2008, at 4-6, 18-19, 22-23, 28-29. 41. On Friday, June 27, 2008, at approximately 4:15 p.m., the U.S. Attorney's Office received a copy of Epstein's proposed state plea agreement and learned that the plea was scheduled for 8:30 a.m., on Monday, June 30, 2008. The U.S. Attorney's Office and the Palm Beach Police Department attempted to provide notification to victims in the short time that Epstein's counsel had provided. The U.S. Attorney's Office called attorney Edwards to provide notice to his clients regarding the hearing. The notice, however, was only that Epstein was pleading guilty to state solicitation of prostitution charges involving another victim. The U.S. Attorney's Office did not tell Edwards that the guilty pleas in state court would bring an end to the possibility of federal prosecution pursuant to the plea agreement. Thus, there was no reason for attorney Edwards to believe that the guilty pleas in state court had any bearing on the cases of Jane Doe #1 and Jane Doe #2. As a result, Jane Doe #1 and Jane Doe #2 did not attend the plea hearing, as they did not think that it was pertinent to their particular cases. Had they known that the plea agreement made it impossible to prosecute Epstein federally for his crimes against them, they would have objected to this resolution. Jane Doe NI and Jane Doe #2 thus detrimentally relied on the inaccurate representations of the U.S. Attorney's Office that their cases were still under investigation. Tr. July 11, 2008 at 4-6, 18-19, 22-23. 42. On June 30, 2008, the U.S. Attorney's Office sent an e-mail to Jack Goldberger, criminal defense counsel for Epstein, reflecting continuing efforts to keep the NPA secret: NM 19 EFTA01072145 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 20 of 42 Case: 13-12923 Date Iiiikedol)618)2/2013 Page: 20 of 42 U.S. Attorney's Correspondence at 321. 43. On July 3, 2008, as requested, Mr. Edwards sent to the U.S. Attorney's Office a letter. In the letter, Mr. Edwards indicated his client's desire that federal charges be filed against defendant Epstein. In particular, he wrote on behalf of his clients: "We urge the Attorney General and our United States Attorney to consider the fundamental import of the vigorous enforcement of our Federal laws. We urge you to move forward with the traditional indictments and criminal prosecution commensurate with the crimes Mr. Epstein has committed, and we further urge you to take the steps necessary to protect our children from this very dangerous sexual predator." See Exhibit "J." 44. When Mr. Edwards wrote his July 3, 2008 letter, he was still unaware that a non- prosecution agreement had been reached with Epstein — a fact that continued to be concealed from him (and the victims) by the U.S. Attorney's Office. Mr. Edwards first saw a reference to the NPA on or after July 9, 2008, when the Government filed its responsive pleading to Jane Doe's emergency petition. That pleading was the first public mention of the non-prosecution agreement and the first disclosure to Mr. Edwards (and thus to Jane Doe #1 and Jane Doe #2) of the possible existence of a non-prosecution agreement. Tr. July I I, 2008 at 4-6, 18-19, 22-23, 28-29. 45. Mr. Edwards detrimentally relied on the misleading representations made by the U.S. Attorney's Office that the case was still under investigation when he was writing this letter. He would not have wasted his time undertaking a pointless exercise had he known that the U.S. 20 EFTA01072146 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 21 of 42 Case: 13-12923 Date FlitaloD38)2/2013 Page: 21 of 42 Attorney's Office had previously negotiated a non-prosecution agreement. See Exhibits "E" & "J." 46. On July 7, 2008, Jane Doe #1 filed a petition for enforcement of her rights tinder the CVRA. At the time, Jane Doe #1 was not aware of the non-prosecution agreement, so she sought a court order directing the Justice Department to confer with her before reaching any such agreement. Epstein quickly became aware of this petition. Doc. #1 at 1-2. 47. On July 9, 2008, the U.S. Attorney's Office sent a victim notification to Jane Doe #1 via her attorney, Bradley Edwards. That notification contains a written explanation of some of the terms of the agreement between Epstein and the U.S. Attorney's Office. A full copy of the terms was not provided. A notification was not provided to Jane Doe #2 because the agreement limited Epstein's liability to victims whom the United States was prepared to name in an indictment. As a result, Jane Doe #2 never received a notification letter about the agreement. The notification did not mention the non-prosecution agreement with the U.S. Attorney's Office. Exhibits "E" & "K." 48. The notification that the U.S. Attorney's Office sent to Jane Doe #1 and other victims contained false and inaccurate information about the terms of the non-prosecution agreement. The false information was specifically approved by Epstein's attorneys. Supplemental Declaration of A. Marie Villafana, Dec. 22, 2008, doc. #35 at 2-3. 49. On July 11, 2008, the Court held a hearing on Jane Doe #1 and Jane Doe #2's Emergency Petition for Enforcement of Rights. During the hearing, the Government conceded that Jane Doe #1 and Jane Doe #2 were "victims" within the meaning of the Crime Victim's 21 EFTA01072147 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 22 of 42 Case: 13-12923 Date Re101)68)2/2013 Page: 22 of 42 Rights Act. Epstein was aware of these and subsequent proceedings involving the CVRA. Tr. July 11, 2008, at 14-15. 50. During the July 11, 2008 hearing, the Government conceded that its agreement had been concluded months before the victims were notified about it. See id. at 12 (". . . the agreement was consummated by the parties in December of 2007."). 51. At all times material to this statement of facts, it would have been practical and feasible for the federal government to inform Jane Doe #1 and Jane Doe #2 of the details of the proposed non-prosecution agreement with Epstein, including in particular the fact that the agreement barred any federal criminal prosecution. See U.S. Attorney's Correspondence at 191- 92. 52. One of the senior prosecutors in the U.S. Attorney's Office joined Epstein's payroll shortly after important decisions were made limiting Epstein's criminal liability — and improperly represented people close to Epstein. During the federal investigation of Epstein, Bruce Reinhart was a senior Assistant U.S. Attorney in the U.S. Attorney's Office for the Southern District of Florida. Within months after the non-prosecution agreement was signed, Reinhart left the Office and immediately went into private practice as a "white collar" criminal defense attorney. His office coincidentally happened to be not only in the same building (and on the same floor) as Epstein's lead criminal defense counsel, Jack Goldberger, but it was actually located right next door to the Florida Science Foundation — an Epstein-owned and -run company where Epstein spent his "work release." See http://www.brucereinhartlaw.com. 53. While working in this Office adjacent to Epstein's, Reinhart undertook the representation of numerous Epstein employees and pilots during the civil cases filed against 22 EFTA01072148 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 23 of 42 Case: 13-12923 Date Raft1°1)68)2/2013 Page: 23 of 42 Epstein by the victims — cases that involved the exact same crimes and same evidence being reviewed by the U.S. Attorney's office when he was employed there. Specifically, he represented Sarah Kellen (Epstein's number one co-conspirator who was actually named as such in the NPA), his housekeeper (LoneIla Ruboyo), his pilots Larry Morrison, Larry Visoski, David Rogers, William Hammond and Robert Roxburgh. (Hammond and Roxburgh were not deposed, but the others were.) See depositions of these individuals in various Epstein civil cases. On information and belief, Reinhart's representation of these individuals was paid, directly or indirectly, by Epstein. Such representations are in contravention of Justice Department regulations and Florida bar rules. Such representations also give, at least, the improper appearance that Reinhart may have attempted to curry with Epstein and then reap his reward through favorable employment. LEGAL MEMORANDUM The victims have previously briefed the issues of why they are entitled to entry of an order by this Court finding that the U.S. Attorney's Office violated their rights under the CVRA. See doc. #1; doe #9 at 3-11; doe. #19 at 3-9, 14. The victims specifically incorporate those pleadings by reference here. In short, as explained in the victims' earlier pleadings, the Office violated the victims' right to confer before reaching the non-prosecution agreement and also failed to use its best efforts to comply with the CVRA. The victims now provide additional briefing on two issues: (I) the CVRA applies to Jane Doe #1 and Jane Doe #2 even though no indictment was filed in their case; and (2) the Court should find that the government has clearly violated the CVRA in this case and set up a briefing schedule and hearing on the appropriate remedy. 23 EFTA01072149 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 24 of 42 Case: 13-12923 Date 1 11009842/2013 Page: 24 of 42 I. THE CVRA PROTECTS JANE DOE #1 AND JANE DOE #2 EVEN THOUGH THIS CASE WAS RESOLVED BY A NON-PROSECUTION AGREEMENT RATHER THAN INDICTMENT. In this litigation, the Government is apparently taking the position that the Crime Victims' Rights Act does not extend rights to Jane Doe #1 and Jane Doe #2 because no indictment was ever filed in federal court and thus no federal court proceedings were ever held. This crabbed litigation position about the breadth of the CVRA cannot be sustained. Indeed, neither the FBI nor the U.S. Attorney's Office itself took this position during the Epstein investigation — until the victims in this case tiled their petition requesting enforcement of their rights. Instead, both the FBI and the U.S. Attorney's Office recognized that because the U.S. Attorney's Office was negotiating a non-prosecution agreement that affected the rights of specifically identified victims, the CVRA was applicable. The Court should reject the Government's newly-contrived position. A. The Plain Language of the CVRA Makes Clear that Victims Have Rights Before an Indictment is Filed. The CVRA promises crime victims that they will have various rights, including "[t]he reasonable right to confer with the attorney for the Government in the case," 18 U.S.C. § 3771(a)(5) (emphasis added), and "the right to be treated with fairness," 18 U.S.C. § 3771(a)(8).. In earlier pleadings filed in this action, the Government has tried to narrowly construe the CVRA so that it applies only to a "court proceeding." See Gov't Response to Victim's Emergency Petition (doc. #13) at 1-2. The Government's position contravenes the plain language of the CVRA. The CVRA guarantees to Jane Doe #1 and Jane Doe #2 the right to confer with prosecutors "in the case," 24 EFTA01072150 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 25 of 42 Case: 13-12923 Date RIEldoD68)2/2013 Page: 25 of 42 not in a "court proceeding." And the CVRA broadly extends a right to them "to be treated with fairness" — a right that is not circumscribed to just court proceedings. Indeed, the fact that (as the Government notes) the drafters of the CVRA used the term "court proceeding" elsewhere in the statute (i.e., 18 U.S.C. § 3771(a)(2) (victim's right to notice "of any public court proceeding")) makes it obvious that they intended to give victims a right to confer that extended beyond simple court proceedings — that is, the right to confer about "the case" — as well as a broad right to be treated fairly throughout the process. Moreover, it is patently obvious that a criminal "case" against Epstein had been going on for months before the victims learned about the non-prosecution agreement. As recounted in the statement of facts above, both the FBI and the U.S. Attorney's Office for the Southern District of Florida had opened a "case" involving Epstein's sexual abuse of the victims well before they entered into plea negotiations with Epstein. Indeed, as early as June 7, 2007 — more than three months before they concluded the NPA with Epstein — the U.S. Attorney's Office sent a notice to Jane Doe #I stating "your case is under investigation." See Exhibit "C" (emphasis added). The notice went on to tell Jane Doe #1 that "as a victim and/or witness of a federal offense, you have a number of rights." Id. at I. Among the rights that the U.S. Attorney's Office itself told Jane Doe that she possessed was "[t]he right to confer with the attorney for the United States in the case." Of course, she would not have had those rights if she was not covered by the CVRA. Interestingly, the letter also advised Jane Doe #I that "if you believe that the rights set forth above [e.g., the right to confer and other CVRA rights] are being violated, you have the right to petition the Court for relief." Id. at 1. 25 EFTA01072151 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 26 of 42 Case: 13-12923 Date F(fkit10068)2/2013 Page: 26 of 42 The plain language of the CVRA makes clear that crime victims have right even before the filing of any indictment. The CVRA's instructs that crime victims who seeks to assert rights in pre-indictment situations should proceed in the court where the crime was committed: "The rights described in subsection (a) [of the CVRA] shall be asserted in the district in which a defendant is being prosecuted for the crime or, f no prosecution is underway, in the district court in the district in which the crime occurred." 18 U.S.C. § 3771(d)(3) (emphasis added). The victims have relied on this language through their pleadings, but the Government has not offered any response. The CVRA also directs that "[o]fficers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, investigation, or prosecution of crime shall make their best efforts to see that crime victims are notified of, and accorded, the rights described in [the CVRA]." 18 U.S.C. § 3771(c)(1) (emphasis added). Of course, there would be no reason to direct that agencies involved in the "detection" and "investigation" of crime have CVRA obligations if the Government's construction of the Act were correct. Plainly, Congress envisioned the victims' rights law applying during the "detection" and "investigation" phases of criminal cases. For all these reasons, the Court need look no further than the language of the CVRA to conclude that the victims in this case had protected rights under the Act. B. Other Courts Have Recognized That Crime Victims Have Rights Before An Indictment is Filed. In its briefing to date, the Government has yet to cite a single case that has accepted its sweeping position that the CVRA only extends rights to victims after the formal filing of an 26 EFTA01072152 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 27 of 42 Case: 13-12923 Date FgEaloD618)2/2013 Page: 27 of 42 indictment. This is because the case law all cuts the opposite way and recognizes that the CVRA does protect victims during the investigation of federal criminal cases. In a case remarkably similar to this one, the Fifth Circuit has held that victims have a right to confer with federal prosecutors even before any charges are filed. In In re Dean, 527 F.3d 391, 394 (5th Cir. 2008), a wealthy corporate defendant reached a generous plea deal with the Government — a deal that the Government concluded and filed for approval with the district court without conferring with the victims. When challenged on a mandamus petition by the victims, the Fifth Circuit held: The district court acknowledged that "[tJhere are clearly rights under the CVRA that apply before any prosecution is underway." BP Prods., 2008 WL 501321 at *11, 2008 U.S. Dist. LEXIS 12893, at •36. Logically, this includes the CVRA's establishment of victims' "reasonable right to confer with the attorney for the Government." 18 U.S.C. § 377I(a)(5). At least in the posture of this case (and we do not speculate on the applicability to other situations), the government should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims' views on the possible details of a plea bargain. Id. As we understand the Government's attempt to distinguish Dean, it asks this Court to decline to follow the Fifth Circuit's holding and create a split of authority on this important issue. Sec Gov't Response to Emergency Petn. at 2.3. Instead, the Government would have this Court deviate from the Fifth Circuit's well-reasoned opinion because the Circuit's "discussion of the scope of the right to confer was unnecessary because the court ultimately declined to issue mandamus relief." Gov't Response at 2 (citing Dean, 527 F.3d at 395). This is simply untrue. The Fifth Circuit faced a petition for mandamus relief from the victims in that case, asking the 27 EFTA01072153 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 28 of 42 Case: 13-12923 Date F{Sdo0618)2/2013 Page: 28 of 42 Court to reject a proposed "binding" plea agreement negotiated under Fed. R. Crim. P. 11(c)(1)(C) (i.e., a plea agreement obligating the judge to impose a specific sentence). The victims asked for that relief because of the Government's failure to confer with them before the charges and accompanying plea agreement were filed. The Fifth Circuit held that the victims' rights had been violated in the passages quoted above. It then went on to remand the matter to district court for further consideration of the effect of the violations of the victims' rights: We are confident, however, that the conscientious district court will fully consider the victims' objections and concerns in deciding whether the plea agreement should be accepted. The decision whether to grant mandamus is largely prudential. We conclude that the better course is to deny relief, confident that the district court will take heed that the victims have not been accorded their full rights under the CVRA and will carefully consider their objections and briefs as this matter proceeds. In re Dean, 527 F.3d at 396. Obviously, the Fifth Circuit could not have instructed the District Court to "take heed" of the violations of victims' rights unless it has specifically held, as a matter of law, that the victims' rights had been violated. The Government's next effort to deflect the force of the Fifth Circuit's decision is that the Circuit did not directly quote three words found in the CVRA's right to confer — the words "in the case." See Gov't Response to Emergency Petn. at 2. But the Fifth Circuit had received briefs totaling close to 100 pages in that case and was obviously well aware of the statute at hand. Indeed, in the very paragraph the Government claims is troublesome, the Fifth Circuit cited to the district court opinion under review, which had quoted all the words in the statute. See United States v. BP Products, 2008 WL 501321 at *7 (noting victims right to confer "in the case"), cited in In re Dean, 527 F.3d at 394. 28 EFTA01072154 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 29 of 42 Case: 13-12923 Date FQBEdoD618)2/2013 Page: 29 of 42 The Government finally notes that the Fifth Circuit stated that its ruling about the Government violating the right to confer applied "in the posture of this case." In re Dean, 527 F.3d at 394. But the posture of the case involving Epstein here — at least in its relevant aspects -- is virtually identical to the posture there. The Fifth Circuit held that the Government had an obligation to confer with the victims before charges were filed and before a final plea arrangement was reached. Without giving the victims a chance to confer before hand, the plea agreement might be fatally flawed because it did not consider the concerns of the victims. Thus, the Fifth Circuit emphasized the need to confer with victims before any disposition was finally decided: "The victims do have reason to believe that their impact on the eventual sentence is substantially less where, as here, their input is received after the parties have reached a tentative deal. As we have explained, that is why we conclude that these victims should have been heard at an earlier stage." Id. at 395. The posture in this case is exactly the same — the Government should have conferred before the parties "reached a tentative deal." The fact that the deal reached here is slightly different than the deal reached in the Dean case (a non-prosecution agreement versus a plea agreement) is truly a distinction without a difference. If anything, the facts here cry out for conferral even more than in that case. At least the defendant there agreed to plead guilty to a federal felony. Here, the wealthy defendant has escaped all federal punishment — a plea deal that Jane Doe #1 and Jane Doe #2 would have strenuously objected to . .. if the Government had given them the chance. The Fifth Circuit's decision in Dean has been cited favorably in two recent District Court decisions, which provides further support for Petitioner's position here. In United States v. Rubin, 2008 WL 2358591 (E.D.N.Y. 2008), the victims argued for extremely broad rights under 29 EFTA01072155 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 30 of 42 Case: 13-12923 Date FgEtedol)618)2/2013 Page: 30 of 42 the CVRA. After citing Dean, the District Court agreed that the rights were expansive and could apply before indictment, but subject to the outer limit that the Government be at least "contemplating" charges: Quite understandably, movants perceive their victimization as having begun long before the government got around to filing the superseding indictment. They also believe their rights under the CVRA ripened at the moment of actual victimization, or at least at the point when they first contacted the government. Movants rely on a decision from the Southern District of Texas for the notion that CVRA rights apply prior to any prosecution. In United States v. BP Products North America, Inc., the district court reasoned that because § 3771(d)(3) provided for the assertion of CVRA rights "in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in the district in which the crime occurred," the CVRA clearly provided for "rights .. . that apply before any prosecution is underway." (United States v. BP Products North America, Inc., Criminal No. H-07-434, 2008 WL 501321 at *11 (S.D.Tex. Feb.21, 2008) (emphasis in original), mandamus denied in part, In re Dean, No. 08-20125, 2008 WL 1960245 (5'h Cir. May 7, 2008). But, assuming that it was within the contemplation and intendment of the CVRA to guarantee certain victim's rights prior to formal commencement of a criminal proceeding, the universe of such rights clearly has its logical limits. For example, the realm of cases in which the CVRA might apply despite no prosecution being "underway," cannot be read to include the victims of uncharged crimes that the government has not even contemplated. It is impossible to expect the government, much less a court, to notify crime victims of their rights if the government has not verified to at least an elementary degree that a crime has actually taken place, given that a corresponding investigation is at a nascent or theoretical stage. Id. at *6. Here, of course, the criminal investigation went far beyond the "nascent or theoretical stage" — to a point where the Government detennined that crimes had been committed and that the defendant should plead guilty to either a state or federal offense. Similarly, at least one other district court has reviewed the issue and agreed with the victims' position that crime victims can have rights before charges are filed. In rejecting an argument that the CVRA should be limited to cases in which a defendant has been convicted, United States v. Ohm, explained: "Furthermore, the Fifth Circuit has noted that victims acquire 30 EFTA01072156 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 31 of 42 Case: 13-12923 Date FffEe7do0618)2/2013 Page: 31 of 42 rights under the CVRA even before prosecution. See In re Dean, 527 F.3d 391, 394 (5th Cir.2008). This view is supported by the statutory language, which gives the victims rights before the accepting of plea agreements and, therefore, before adjudication of guilt. See 18 U.S.C. § 3771(a)(4)." 2009 WL 790042 at *2 (E.D.Va. 2009). Accordingly, rather than create a split of authority, this Court should follow the Fifth Circuit's holding in Dean (and the view of the U.S. District Courts for the Eastern District of New York and the Eastern District of Virginia) and conclude that the CVRA extends rights to Jane Doe #1 and Jane Doc #2 under the facts of this case. C. The U.S. Attorney's Office Has Previously Recognized that Jane Doe #1 and Jane Doe #2 Have Rights Under the CVRA. A final reason for concluding that Jane Doe #1 and Jane Doe #2 are protected by the CVRA is that the U.S. Attorney's Office itself reached that conclusion — well before the victims filed this petition. The U.S. Attorney's Office arranged to have the FBI send a notice to, for example, Jane Doe #1 informing her that she had rights under the CVRA. Later, in discussions with defendant Epstein, the Office explained to Epstein their obligations to the victims under the CVRA. Indeed, it was only after Jane Doe #1 and Jane Doe #2 filed a petition with this Court seeking protection of their rights that the U.S. Attorney's Office reversed its position. The Court should reject this remarkable about-face. As recounted in more detail above, the U.S. Attorney's Office made clear to both the victims and to Epstein that the victims had rights under the CVRA. For example, on about June 7, 2007, FBI agents hand-delivered to Jane Doe #1 a standard CVRA victim notification letter, promising that the Justice Department would makes its "best efforts" to protect Jane Doe #1's 31 EFTA01072157 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 32 of 42 Case: 13-12923 Date FQE6EdoD68)2/2013 Page: 32 of 42 rights, including "[Ole reasonable right to confer with the attorney for the United States in the case" and "to be reasonably heard at any public proceeding in the district court involving . . . plea . . . ." Exhibit "C." Similarly, on about November 27, 2007, then First Assistant U.S. Attorney Jeff Sloman sent an e-mail to Jay Lefkowitz, defense counsel for Epstein stating: la U.S. Attorney's Correspondence at 255 (emphasis rearranged). Apparently, this assertion produced some sort of objection from defendant Epstein. The U.S. Attorney's Office, however, rejected those objections In a letter on about December 6, 2007, Jeffrey H. Sloman, First Assistant U.S. Attorney again sent a letter to Jay Lefkowitz, reiterating the U.S. Attorney's Office's legal obligations to keep victims informed of the status of The letter stated: 32 EFTA01072158 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 33 of 42 Case: 13-12923 Date FfEtloD68)2/2013 Page: 33 of 42 U.S. Attorney's Correspondence at 191-92 (emphasis added). What this correspondence shows is that the U.S. Attorney's Office quite clearly took the position with defendant Epstein that the CVRA extended rights to Epstein's victims. Yet when the victims in this case filed a petition in this Court asking those rights to be respected, the Government simply reversed course. The U.S. Attorney's Office had it right the first time — the CVRA does extend rights to Jane Doe #1 and Jane Doe #2 in this case. D. The U.S. Attorney's Office Is Estopped From Arguing that the CVRA Does Not Apply in this Case. For all the reasons just explained, it is clear that the CVRA applies to this case and the Jane Doe #1 and Jane Doe #2 had rights under the Act. In addition, however, the Government is simply stopped from arguing otherwise. The Government told the victims that they had rights under the CVRA and would keep them informed about the progress of the case. Exhibits "C," "D," "F," & "G." Having made those representations to the victims — and having induced reliance by the victims —the Government is stopped from taking a different position now. As explained by the Eleventh Circuit, to make out a claim of estoppel against the Government, a party must adduce evidence of the following: (I) words, conduct, or acquiescence that induces reliance; (2) willfulness or negligence with regard to the acts, conduct, or acquiescence; (3) detrimental reliance; and (4) affirmative misconduct by the Government. United States v. McCorkle, 321 F.3d 1292 (11th Cir. 2003). Each of these four factors is easily met here. 33 EFTA01072159 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 34 of 42 Case: 13-12923 Date Rife1°068)2/2013 Page: 34 of 42 First, the Government made statements to the victims that induced reliance. The victims received an official notice on Justice Department letterhead that they were crime victims in the Epstein case and that the Justice Department would use its "best efforts" to protect their rights. Second, these statements were obviously not accidental — to the contrary, the Government specifically and deliberately sent these notices to the victims. Third, the victims detrimentally relied on these statements. As explained at greater length in the victims proposed facts, the victims were lead to believe that their case was "under investigation." As a result, they did not take steps to object to Epstein's plea agreement and, indeed, did not even attend the court hearing where Epstein pled guilty. Similarly, their attorney (Mr. Edwards) was induced to spend an afternoon writing a letter to the U.S Attorney's Office about why Epstein should be federally prosecuted — time that was taken away from other matters at his busy law practice. This was a complete wild goose chase, as the U.S. Attorney's Office was concealing from Mr. Edwards at the time that a federal non-prosecution agreement had already been reached with Epstein. Fourth, the U.S. Attorney's Office engaged in affirmative misconduct. We do not make this allegation lightly. But the facts recounted above demonstrate the following chain of events. The U.S. Attorney's Office first reached a non-prosecution agreement with Epstein, in which it agreed not to prosecute him for numerous crimes (including, for example, sex offenses committed by Epstein against Jane Doe #1). As part of that agreement, the U.S. Attorney's Office agreed to a "confidentiality" provision that forbade publicly disclosing the existence of the agreement. As a result, the U.S. Attorney's Office (and FBI agents acting under its 34 EFTA01072160 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 35 of 42 Case: 13-12923 Date F(CAdoD58)2/2013 Page: 35 of 42 direction4) kept the existence of the non-prosecution agreement secret from the victims and the public. The reasonable inference from the evidence is that the U.S. Attorney's Office wanted to keep the agreement a secret to avoid intense criticism that would have surely ensued had the victims and the public learned that a billionaire sex offender with political connections had arranged to avoid federal prosecution for numerous felony sex offenses against minor girls. As part of this pattern of deception, the U.S. Attorney's Office discussed victim notification with the defendant sex offender and, after he raised objections, stopped making notifications. Then later in January 2008, the U.S. Attorney's Office arranged for letters to be sent to the victims — including Jane Doe #1 and Jane Doe #2 — that falsely stated that to each that your "case is currently under investigation." This was untrue, as the U.S. Attorney's Office had already resolved the federal case by signing a non-prosecution agreement with Epstein. Indeed, the pattern of deception continued even after Jane Doe #1 and Jane Doe #2 were represented by legal counsel. In May 2008, the Office sent a similar letter stating "your case is currently investigation" to another victim (represented by attorney Bradley J. Edwards). As late as the middle of June 2008 — more than eight months after the non-prosecution agreement had been signed -- the Assistant U.S. Attorney handling the case told Edwards to send information that he wanted the Office to consider in determining whether to file federal charges. The Office concealed from him that it had already made the determination not to file federal charges and that the Office had in fact signed a non-prosecution agreement long ago. The Office also concealed from him the fact that guilty pleas in state court were imminent. The Office disclosed It is unknown whether the U.S. Attorney's Office even made the FBI aware of the NPA in a timely fashion. 35 EFTA01072161 Case 9:08-cv-80736-KAM Document 48 Entered on FLED Docket 03/21/2011 Page 36 of 42 Case: 13-12923 Date RefaioDEM)2/2013 Page: 36 of 42 the non-prosecution agreement only after Epstein had entered his guilty pleas in state court — in other words, only after the time for the victims to be able to object to the non-prosecution agreement during the plea process had come and gone. Even at that time, the Office did not disclose the provisions in the agreement. In shod, the victims never learned about the non- prosecution agreement barring federal prosecution of their cases because of a deliberate decisions by the U.S. Attorney's Office, not mere "negligence or inaction." McCorkk, 321 F.3d at 1297. Accordingly, the Government is stopped from arguing that the Crime Victims' Rights Act does not apply to this case. II. THE COURT SHOULD FIND THAT THE VICTIMS' RIGHTS HAVE BEEN VIOLATED AND THEN SET UP A BRIEFING SCHEDULE AND HEARING ON THE APPROPRIATE REMEDY. This U.S. Attorney's Office's behavior in this case does not satisfy the Office's obligations under the CVRA to use its "best efforts" to insure that victims receive protection of their rights. 18 U.S.C. § 3771(c)(1). In particular, the undeniable chain of events makes clear that the victims were not afforded their right "to confer with the attorney for the Government in the case." 18 U.S.C. § 3771(a)(5). Whatever else may be said about the deception, it also starkly violates the victims' right "to be treated with fairness and with respect for the victim's dignity . . . ." 18 U.S.C. § 3771(a)(8). The pattern also denied the victims of timely notice of court proceedings, 18 U.S.C. § 3771(a)(3), including in particular the state court guilty plea. As we understand the position of the Government, it does not truly contest that — if the CVRA applied — it managed to discharge its various obligations under the Act. Instead, the Government relies solely on a technical argument to reach the conclusion that it discharged its obligations — namely, the argument that the CVRA does not apply until a formal indictment is 36 EFTA01072162 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 37 of 42 Case: 13-12923 Date F(ifeioD58)2/2013 Page: 37 of 42 filed. As just explained, however, that technical argument must be rejected as inconsistent with the CVRA's plain language and interpretation by other courts. Accordingly, this Court should find that the Government has violated its CVRA obligations. Once the Court finds such a violation, the next issue becomes what remedy should apply. Since the earliest days of our nation, it has been settled law that "where there is a legal right, there is also a legal remedy . . . .." Marburyv. Madison, 5 U.S. 137, 163 (1803) (internal quotation omitted). Moreover, "[i]f the right is created by a federal statute, the federal courts have the power to fashion an appropriate remedy." Intracoastal Transp., Inc. v. Decatur County, Georgia 482 F.2d 361, 371 (51h Cir. 1973). As we understand the Government's position in this case, however, they believe that this Court is powerless to do anything to correct the palpable violation of victims' rights documented in this case. Jane Doe #1 and Jane Doe #2 respectfully request that the Court set up a briefing schedule and a hearing on this important issue. The victims believe that they can establish that the appropriate remedy for the clear violations of their rights is to invalidate the Non-Prosecution Agreement. While the victims request an opportunity to provide more extensive briefing on this subject, they provide a few citations in support of their position here. When other plea arrangements have been negotiated in violation of federal law, they have been stricken by the courts. For example, United States v. Walker, 98 F.3d 944 (7th Cir. 1996), held that where a sentence on a new crime could not run concurrently with a probation revocation the defendant was then serving — contrary to the assumption of the parties to the plea agreement — the defendant was not entitled to specific performance of the plea agreement. The Court explained that the case was one "in which the bargain is vitiated by illegality . . . ... Id. at 37 EFTA01072163 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 38 of 42 Case: 13-12923 Date Fffeldol)68)2/2013 Page: 38 of 42 947. Here, of course, exactly the same is true: the non-prosecution agreement is vitiated by illegality — namely, the fact that it was negotiated in violation of the victims' rights. Other cases reach similar conclusions. See, e.g., United States v. Cooper, 70 F.3d 563, 567 (10th Cir. 1995) (prosecutor agreed to recommend probation, but it later appeared that would be an illegal sentence in this case, and thus only adequate remedy is to allow defendant to withdraw plea); Craig v. People, 986 P.2d 951, 959-60 (Colo. 1999) (because "neither the prosecutor nor the trial court have authority to modify or waive the mandatory parole period," such "is not a permissible subject of plea negotiations," and thus, even if "the trial court erroneously approves of such an illegal bargain" such plea is "invalid" and thus will not be specifically enforced). Nor can the defendant claim some right to specific performance of an illegal non-prosecution agreement. See State v. Garcia, 582 N.W.2d 879, 881-82 (Minn. 1998) (plea agreement for 81 months sentence, but court added 10-year conditional release term because, under facts of case, sentence without such release term "plainly illegal," and thus remedy of specific performance not available); State v. Wall, 348 N.C. 671, 502 S.E.2d 585, 588 (1998) (plea agreement was for sentence to be concurrent with one not yet completed, but state statute mandates consecutive sentence on facts of this case; "defendant is not entitled to specific performance in this case because such action would violate the laws of this state"); Ex parte Rich, 194 S.W.3d 508, 515 (Tex. Crim. App. 2006); (where "the plea bargain seemed fair on its face when executed, it has become unenforceable due to circumstances beyond the control of [the parties], namely the fact that one of the enhancement paragraphs was mischaracterized in the indictment, resulting in an illegal sentence far outside the statutory range," proper remedy is plea withdrawal, as "there is no way of knowing whether the State would have offered a plea bargain within the proper range of 38 EFTA01072164 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 39 of 42 Case: 13-12923 Date FfiftioD58)2/2013 Page: 39 of 42 punishment that he deemed acceptable"); State v. Mazzone, 212 W.Va. 368, 572 S.E.2d 891, 897 (2002) (where plea agreement was that defendant would plead guilty to 2 felony counts of felon in possession of firearm and prosecutor would dismiss remaining 6 counts re other offenses with prejudice, and all parties erroneously believed these 2 crimes were felonies, lower court "correctly resolved this unfortunate predicament by holding that a plea agreement which cannot be fulfilled based upon legal impossibility must be vacated in its entirety, and the parties must be placed, as nearly as possible, in the positions they occupied prior to the entry of the plea agreement"). The Non-Prosecution Agreement that the Government entered into in this case was simply illegal. The Government did not protect the congressionally-mandated rights of victims before it entered into this Agreement. Perhaps it is for this reason that the Agreement is so shockingly lenient — blocking prosecution for dozens and dozens of federal felony sex offenses against several dozen minor girls. But regardless of the leniency, the only issue for the Court is whether the Agreement was lawful. It was not, and so the Court invalidate it.5 The victims respectfully ask for a full briefing schedule and a hearing on this important issue. 5 Defendant Jeffrey Epstein was notified about this case long ago, and was notified on August 26, 2010, that the victims would be filing correspondence in support of their motions. He has not chosen to intervene in this action, and so he should not be heard to complain about remedy the Court might impose. In any event, there are no double jeopardy barriers to invalidating the plea. As explained in a leading criminal procedure treatise: The review of defendant's sentence is also provided in federal cases upon application of a victim. The Crime Victim's Rights Act allows a victim to seek to reopen a sentence through a writ of mandamus, if the victim has asserted and been denied the right to be heard at sentencing. Like the prosecution's statutory right to appeal, the victim's statutory remedy should pose no double jeopardy 39 EFTA01072165 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 40 of 42 Case: 13-12923 Date F01O°1)618)2/2013 Page: 40 of 42 CERTIFICATE OF CONFERENCE As recounted above, counsel for Jane Doe #1 and Jane Doe #2 have approached the U.S. Attorney's Office for more than two and a half years in an effort to reach stipulated facts. The U.S. Attorney's Office ultimately terminated those efforts on March 15, 20I 1, taking the position that the facts of the case are irrelevant and that, on any set of facts, it did not violate the CVRA. CONCLUSION For all the foregoing reasons, the Court should find the U.S. Attorney's Office violated Jane Doe #1 and Jane Doe #2's rights under the Crime Victims Rights Act and then schedule an appropriate hearing on the remedy for these violations. The scope of the remedy that is appropriate may depend in part of the scope of the violations that the Court finds. For this reason, it makes sense for the Court to bifurcate the process and determine, first, the extent of the violations and then, second, the remedy appropriate for those violations. If the Court would prefer to see more immediate briefing on remedy issues, the victims stand prepared to provide that briefing at the Court's direction. difficulties if as the [DiFrancesco] Court explained . . . the defendant is 'charged with knowledge of the statute and its . . . provisions, and has no expectation of finality in his sentence until the [review by writ] is concluded ...."' LAFAvs El' AL., CRIMINAL Procedure § 26.7(b) (Nov. 2010) (quoting United States v. DiFrancesco, 449 U.S. 117, 146 (1980)). 40 EFTA01072166 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 41 of 42 Case: 13-12923 Date Flifigdol)618)2/2013 Page: 41 of 42 DATED: March 21. 2011 Respectfully Submitted, si Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WE1SSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 Florida Bar No.: 542075 E-mail: brad©pathtojustice.com and Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: cassello®law.utah.edu Attorneys for Jane Doe #1 and Jane Doe #2 41 EFTA01072167 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 42 of 42 Case: 13-12923 Date FOBBioD38)2/2013 Page: 42 of 42 CERTIFICATE OF SERVICE The foregoing document was served on March 21, 2011, on the following using the Court's CM/ECF system: A. Marie Villafafia Assistant U.S. Attorney 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: ann.marie.c.villafanalausdoi.aov Attorney for the Government Joseph L. Ackerman, Jr. Joseph Ackerman, Jr. Fowler White Burnett PA 777 S. Flagler Drive, West Tower, Suite 901 West Palm Beach, FL 33401 Criminal Defense Counsel for Jeffrey Epstein (courtesy copy of pleading via U.S. mail) 42 EFTA01072168