Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 1 of 18 JANE DOE NO. 2, UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Plaintiff, CASE NO.: 08-CIV-80119-MARRA/JOHNSON vs. JEFFREY EPSTEIN, Defendant. I ---------------- Related cases: 08-80232, 08-08380, 08-80381, 08-80994, 08-80993, 08-80811, 08-80893, 09-80469, 09-80591,09-80656,09-80802,09-81092 ---------------~/ Defendant's Supplementary Brief Pursuant To The Magistrate's Order (DE 242} Requesting A More Particularized Showing Demonstrating How The 5th Amendment May Be Asserted To Plaintiff's Requests For Production, With Memorandum Of Law Defendant, Jeffrey Epstein (hereinafter "Epstein"), by and through his undersigned attorneys, hereby files his Supplementary Brief Pursuant to the Magistrate's Order (DE 242) relative to Plaintiffs Request for Production Numbers 10, 11, 19 and 21. In support, Epstein states: I. Procedural Background I. Plaintiff served her First Request for Production, and Epstein served his responses and objections thereto. See Exhibit "A." Plaintiff filed her Motion to Compel (DE 57), and Epstein filed his Response thereto (the "Response Memorandum"). (DE 63) The objections and responses set forth in Epstein's initial response and the arguments set forth in his Response Memorandum are incorporated herein such that a concise statement and more particularized showing can be made herein as to why Epstein's Fifth Amendment Privilege as to Request for Production Numbers 10, 11, 19 and 21 should be sustained. 1 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 2 of 18 2. This court entered an order (DE 242) stating that Epstein must supplement his Response Memorandum to Plaintiffs Motion to Compel as to request for production numbers 10, 11, 19 and 21 (collectively, the "Specified Requests"). (DE 242, p. 19). Defendant's time to respond and submit this supplementary brief was extended to August 31, 2009. 3. Epstein is submitting this Supplementary Brief with supporting case law only as to the Specified Requests. An Amended Response will be provided as to Request to Produce Number 18. II. Supplementary Brief, With Incorporated Memorandum of Law The Magistrate's Order (DE 242) Correctly Sustained Epstein's 5th Amendment Privilege As To Several Requests And Interrogatories Seeking Testimonial And Incriminating Information Similar To The Specified Requests 4. The Magistrate Judge found that several of the requests were " ... testimonial in nature, in that by production, Epstein would be implicitly communicating 'statements of fact' to which the Fifth Amendment privilege may be validly asserted." (DE 242, p. 10). On that basis, and as a limited example, this Court denied Plaintiffs motion relative to request number 5 (seeking telephone records of calls made by Epstein) and request number 6 (seeking telephone calls made by Epstein to his employees). Likewise, this Court denied Plaintiffs motion relative to interrogatory numbers 1, 2, 10 and 12 because those interrogatories sought the names of Epstein's employees or their telephone numbers and thus "would furnish a link in the chain of evidence needed to prosecute Epstein of a crime." (DE 242, p.8-9). Additionally, this Court denied Plaintiffs motion relative to interrogatory numbers 13, 14 and 17 because those asked Epstein to identify persons or witnesses that have knowledge of the events in question. Id. 2 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 3 of 18 at p. 8. In making the decision, the court recognized, much like this Supplementary Brief contends infra, that ". . . the facts alleged in the Complaints, the elements needed to convict Epstein of a crime, and ... the Court's knowledge concerning the cases at issue" provide a basis for Epstein to raise the privilege based upon "genuinely threatening questions" which could furnish a link in the chain of evidence needed to convict Epstein of a crime. (DE 242, p.18) United States v. Goodwin, 625 F.2d 693, 701 (5th Cir. 1980). 5. As detailed below, the Specified Requests seek similar information or will lead to the production of the same exact information that this court has already ruled is protected by Epstein's Fifth Amendment Privilege. Responding to the Specified Requests Would Violate Epstein's 5"' Amendment Privilege And Would Expose Him to the Hazards of18 U.S.C. 2422(b) And The 18 U.S.C. 2423(h) 6. Request for Production Numbers I 0, 11, 19 and 21 seek the following information: Request No. 10. All documents referring to or relating to air travel and aircraft used by Defendant, including without limitation, flight logs and flight manifests. Request No. 11. Any and all documents referring to or relating to modeling agencies, including but not limited to documents relating to or reflecting communications with female models. Request No. 19. Any and all documents reflecting or consisting of communications between Jeffrey Epstein and MC2 Models or Jean-Luc Brunel, relating or referring to females coming into the United States from other countries to pursue a career in modeling, including, but not limited to, letters, notes and e-mails. Request No. 21. Any and all personal calendars or schedules of or for Jeffrey Epstein from January 1, 2003 to the present. 7. As discussed below, production of the specified information is tantamount to compelled testimonial authentication of the information, its existence, its authenticity, 3 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 4 of 18 and as well Epstein's alleged possession, custody or control of same. Production may result in self incrimination and potential federal-criminal prosecution of Epstein. The Background Of This Case And Other Related Cases As Well As The Federal Statutory Claims And Elements Of Those Offenses Must Be Considered In Connection With Epstein's More Particularized Showing Demonstrating How The 5th Amendment Is Validly Applied To Plaintiff's Requests For Production 8. The circumstances of this case (and in other related cases) are such that not only does Epstein face allegations of sexual misconduct with and abuse, exploitation, and sexual battery of alleged minors in this and other civil actions in the State of Florida, but he also faces the potential of further federal criminal investigations and the possibility of further criminal prosecutions based on the same factual allegations. The Plaintiffs attorney represents Jane Doe Nos. 2, 3, 4, 5, 6, and 7, in civil actions against Epstein filed in this Court. In this and the other civil actions, the Plaintiffs reference and in certain respects discussed herein rely on allegations of the commission of federal and state criminal statutes in an attempt to make claims against Epstein ranging from sexual battery to intentional infliction of emotional distress, including, as to Jane Doe 2 violations of 18 U.S.C. 2422, entitled "Coercion and enticement", contained in Chapter 117 of Title 18 - "Transportation for Illegal Sexual Activity and Related Crimes," and as to other Jane Does, violations of 18 U.S.C. 2423(b) which criminalizes interstate or foreign travel for the purpose of having illicit sexual activity. Both 18 U.S.C. 2422(b) and 2423(b) are alleged by Jane Doe 2 and other Jane Does as predicate criminal offenses for federal damages lawsuits pursuant to 18 U.S.C. §2255 which creates a civil remedy for personal injuries when a plaintiff can first show a violation of specified federal statutory criminal statues. Most importantly for purposes of the Court's making a determination regarding whether Epstein has shown a specific risk of self-incrimination, 4 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 5 of 18 or that production of a document would constitute a link in the chain of evidence, ( see DE242, at pgs 8-9, 18), the lynchpin for the exercise of federal criminal jurisdiction under 18 U.S.C. 2422(b) is "the use of "any facility or means of interstate or foreign commerce" and the analogous essential element of 18 U.S.C. 2423(b) is "travel{s} in interstate commerce or travels into the United States or {as} to a United States citizen ... travels in foreign commerce". Thus, facially, an essential proof of any allegation of 18 U.S.C. 2422(b) - the statutory precondition alleged by Jane Doe 2 for a 2255 civil damage recovery - includes telephone, cellular phone, e-mail records or other "communications" as a facility of interstate commerce during which use there was persuasion, inducement, enticing, or coercing of an underage person to engage in prostitution or sexual activity. Contested requests for production numbers I 0, 11, 19 and 21 ask that Epstein produce information (e.g .. documents reflecting Epstein's air travel, aircraft used and flight manifests, all communications with female models, MC2 models or Jean Luc Brunel relating to or referring to females coming into the United States from other countries and his personal calendars and schedules) that could reveal the availability to him or use of such interstate facilities and thus would constitute a link in the chain of evidence that could potentially expose him to the hazards of self- incrimination as to 18 U .S.C. 2422(b) federal criminal violations. 9. Likewise, other Jane Does such as Jane Doe 102 have contended that they are entitled to 18 U.S.C. 2255 damages based on Epstein's violation of 18 U.S.C. 2423(b ), a separate federal criminal statute that prohibits "a person who travels in interstate commerce or travels into the United States ... for the purpose of engaging in illicit sexual activity". As more fully discussed, infra, contested request to produce 5 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 6 of 18 numbers 10, 11, 19 and 21 ask Epstein to produce information that could provide a link in the chain of evidence regarding: (a) Epstein's air travel within the United States and Foreign Territories; (b) Epstein's communications with female models, MC2 models, or Jean Luc Brunel relating to or referring to females coming into the United States from other countries; and (c) Epstein's personal calendars and schedules. Given that the essential proof of an allegation of 18 U.S.C. 2423(b) would include travel records, schedules regarding trips and locations, flight records, and calendars evidencing Epstein's whereabouts, the requested information, if ordered produced by this Court, would furnish evidence that could potentially expose Epstein to the hazards of self-incrimination as to 18 U.S.C. 2423(b) violations. The is especially true given that, according to Jane Doe 2's complaint, he has residences and businesses in New York and the Virgin Islands as well as Florida. Responding to request numbers 10, 11, 19 and 21 may expose Epstein to the hazards of 18 U.S.C. 2423(b), which was a target offenses of the joint FBI-United States Attorney investigation discussed above, see par 12 and 13, infra The NPA And The Underlying Criminal Investigation That Led To The NPA Must Also Be Considered In Connection With Epstein's More Particularized Showing Demonstrating How The 5th Amendment Is Validly Applied To Plaintiff's Requests For Production1 10. 18 U.S.C. 2422(b) and 18 U.S.C. 2423(b) were offenses that were central to both the joint FBI-United States Attorney investigation, and the resulting Grand Jury 6 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 7 of 18 investigation, as well as the NP A itself, further demonstrating the extent to which Epstein's refusal to respond or produce information to each request is, as required, based on a specific apprehension of a compelled production and disclosure providing a link in the chain of evidence adverse to him. Blau v. United States, 340 U.S. 159 (1950). A more particularized showing will be filed in camera so that Epstein can more fully particularize the basis of his constitutional assertions. 7 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

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Page 13 of 18 Application Of The 5"' Amendment 19. In the instant case, it is evident from the requests themselves, the allegations in the various Complaints, and the facts and circumstances surrounding these cases, that to demand from Epstein a more particularized showing, requires Epstein to walk a thin line with regard to "surrender[ing] the very protection which the privilege is designed to guarantee." Hoffman, 341 U.S. at 479. The United States Supreme Court has made clear that the scope of the Fifth Amendment Privilege also encompasses the circumstance where "the act of producing documents in response to a subpoena ( or production request) has a compelled testimonial aspect." United States v. Hubbell, 530 U.S. at 36; see also Fisher v. United States, 425 U.S. 391 (1976); McCormick on Evidence, Title 6, Chap. 13. The Privilege Against Self-Incrimination, §138 (6th Ed.). The "implicit authentication" rationale appears to be the prevailing justification for the Fifth Amendment's application to documentary subpoenas, which is no different from producing documents responsive to a request for production. See U.S. v Hubbell, 530 2 Paragraphs 11-18 of this Supplementary Brief are being provided to the court on an in camera basis as permitted by the Court's Order. (DE 242, p.20.) 13 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 14 of 18 U.S. 27, 36 (2000); Schmerber v. California, 384 U.S., 757, 763-764, (1966) ("the privilege reaches ... the compulsion of responses which are also communications, for example, compliance with a subpoena to produce one's papers); Couch v. United States, 409 U.S. 322, 344-46 (1973) (the person complying with the subpoena "implicitly testifies that the evidence he brings forth is in fact the evidence demanded"); People v. Defore, 242 N.Y. 13, 27 (1926) ("A defendant is 'protected from producing his documents in response to a Subpoena duces tecum, for his production of them in court would be his voucher of their genuineness.' There would then be 'testimonial compulsion' "). 20. As stated, in responding to each request, Epstein would be compelled to provide assertions of fact, thereby admitting that such documents existed and further admitting that the documents were in his possession or control, and were authentic. In other words, the very act of production of the category of documents requested would implicitly communicate "statements of fact." Hubbell, supra; Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814 (1951). As such, the act of production might not only provide evidence to support a conviction, but also a link in the chain of evidence for prosecution. Importantly, such compulsion to produce is the same as being compelled to testify. Thus, in those instances where the existence and/or location of the requested documents are unknown, or where the production would "implicitly authenticate" the requested documents, the act of producing responsive documents is considered "testimonial" and is protected by the Fifth Amendment. In re Grand Jury Subpoena, 1 F.3d 87, 93 (2nd Cir. 1993); see also Fisher v. U.S., 425 U.S. 391, 410 (1976)(issue expressed as whether compliance with a document request or subpoena "tactically conceded" the items 14 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 15 of 18 authenticity, existence or possession by defendant). Even more egregious is that fact that producing or responding to the Specified Requests could result in self-incrimination and potential prosecution. 21. The United States Supreme Court has expressly encompassed the innocent citizen as well as the guilty within the ambit of Fifth Amendment protections (i.e., that Epstein may deny any allegation that he violated either of the above-described federal statutes is not in conflict with his constitutional right not to be compelled by requests to make disclosures that would further any investigation against him or incriminate him.) The Fifth Amendment privilege against self incrimination is accorded "liberal construction," Hoffman, 341 U.S. at 486, and extends not only to answers that would in themselves support a criminal conviction, but extends also to those answers ( or responses as in the instant matter) that would furnish a link in the chain of evidence needed to prosecute the claimant for a crime. Id. The Fifth Amendment serves as a guarantee against testimonial compulsion and provides, in relevant part, that "[n]o person ... shall be compelled in any Criminal Case to be a witness against himself." (DE 242, p.5). In practice, the Fifth Amendment's privilege against self-incrimination "permits a person not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Edwin v. Price, 778 F.2d 668, 669 (11th Cir. 1985), citing Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)). Thus, information is protected by the privilege not only if it would support a criminal conviction, but also in those instances where "the responses would merely provide a 'lead or clue' to evidence having a tendency to incriminate." United States v., Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S. 825 (1980). 15 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 16 of 18 "The claimant must [also] be 'confronted by substantial and 'real,' and not merely trifling or imaginary, hazards of incrimination." United States v. Apfelbaum, 445 U.S. 115, 128 (1980). Accordingly, responses to the requests propounded upon Epstein would provide information which is protected by the privilege i.e., "the responses [ c ]ould merely provide a 'lead or clue' to evidence having a tendency to incriminate [Epstein]" United States v., Neff, 615 F.2d 1235, 1239 (9th Cir.), cert. denied, 447 U.S. 825 (1980). Brief Conclusion For all of the foregoing reasons, this Court should sustain Epstein's objections to the Specified Requests and uphold Epstein's right to assert his 5th Amendment Privilege in connection with same. Wherefore, Epstein respectfully requests that this Court issue and order: a. finding that the danger Epstein faces by being forced to respond and produce documents relative to request numbers 10, 11, 19 and 21 is substantial and real, and not merely trifling or imaginary; b. sustaining Epstein's Fifth Amendment Privilege as it relates to request numbers 10, 11, 19 and 21 and denying Plaintiffs Motion in that regard; and c. for such other and further relief s this Court deems just and proper. AEL J. PIKE, ESQ. Florida Bar #617296 Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identifi n the lowing Service List in the manner specified by CM/ECF on this f day of-+.A'.#-<WaJ----, 2009. Respectful! y 16 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009

Page 17 of 18 TON, JR., ESQ. Flor· a arNo. 224162 rcrit@ clclaw.com MICHAEL J. PIKE, ESQ. Florida Bar #617296 [email protected] BURMAN, CRITTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 561/842-2820 Phone 561/515-3148 Fax (Counsel for Defendant Jeffrey Epstein) Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRA/JOHNSON Stuart S. Mermelstein, Esq. Adam D. Horowitz, Esq. Mermelstein & Horowitz, P.A. 18205 Biscayne Boulevard Suite 2218 Miami, FL 33160 305-931-2200 Brad Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard Suite 1650 Fort Lauderdale, FL 33301 Phone: 954-522-3456 Fax: 954-527-8663 [email protected] Fax: 305-931-0877 [email protected] [email protected] Counsel for Plaintiffs Counsel for Plaintiff in Related Case No. 08-80893 In related Cases Nos. 08-80069, 08-80119, 08-80232, 08-80380, 08-80381, 08-80993, 08-80994 Richard Horace Willits, Esq. Richard H. Willits, P.A. 2290 10th Avenue North Suite 404 Lake Worth, FL 33461 561-582-7600 Fax: 561-588-8819 Counsel for Plaintiff in Related Case No. 08-80811 Paul G. Cassell, Esq. Pro Hae Vice 332 South 1400 E, Room 101 Salt Lake City, UT 84112 801-585-5202 801-585-6833 Fax [email protected] Co-counsel for Plaintiff Jane Doe Isidro M. Garcia, Esq. Garcia Law Firm, P.A. 224 Datura Street, Suite 900 17 Case 9:08-cv-80119-KAM Document 283 Entered on FLSD Docket 08/31/2009