Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 51 of 54 as asking two questions, whether Article III standing exists, and whether the statute at issue grants the purported plaintiff a means to seek relief under the applicable statute. Id. at 1355. Respondents believe petitioners cannot seek relief under section 3771(d)(3) because they cannot establish that the rights enumerated in section 3771(a) attached, in the absence of a formal charge being filed. Consequently, petitioners lack standing. IX. PETITIONERS' MOTION FOR ENFORCEMENT, AND REQUEST FOR HEARING. SHOULD BE DENIED The statutory text, legislative history, and case authority support the view that the right to confer enumerated in section 3771(aX5) does not attach until a formal charge is filed in the district court. Therefore, petitioners' motion for enforcement should be denied. The remedy petitioners seek is to have this Court set aside the non-prosecution agreement. DE 48 at 36-40. Assuming amend° that the Court finds the right to confer did arise in the absence of a formal charge being filed, respondents respectfully submit the Court would lack the authority to set aside the non-prosecution agreement. As stated previously, a non- prosecution agreement, unlike a plea agreement, is not subject to judicial pre-approvaL It is an exercise of prosecutorial discretion that is "largely unreviewable." Inasmuch as a non-prosecution agreement would not normally come before the Court for judicial scrutiny and approval, it should not come before the Court in the guise of a motion to enforce the CVRA. This would be contrary to section 3771(d)(6)'s clear intention that nothing in the CVRA should be construed to impair the prosecutorial discretion of the Attorney General. Petitioners contend that a violation of a right must have a remedy. However, this is not always the case. Indeed, courts have recognized that a controversy is moot if effective relief 51 08-80736-CV-MARRA 000870 EFTA00230694

Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 52 of 54 cannot be granted. Continental Casualty Co.'. Fibreboard Corp., 4 F.3d 777, 778 (' Cir. 1993). The non-prosecution agreement in this case was signed in 2007, and Epstein entered his pleas of guilty in July 2008, in Florida circuit court. I k was sentenced by the state court, and has served his sentence. Individuals who were sexually abused by Epstein have filed civil actions against him, relying upon certain provisions of the non-prosecution agreement. Any failure to confer under section 3771(aX5) does not render the non-prosecution agreement illegal, as petitioners suggest. A plea agreement that was entered into by the government without having conferred with a victim can be disapproved by the district court, since all plea agreements are subject to judicial scrutiny and approval. A non-prosecution agreement is an exercise of prosecutorial discretion, not subject to judicial pre-approval. While petitioners may assail the government's exercise of its discretion in this case, the exercise of that discretion is not subject to judicial review, either independent of a CVRA motion, or in conjunction with such a motion. 52 08-80736-CV-MARRA 000871 EFTA00230695

1 Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 53 of 54 CONCLUSION Petitioners' motion for finding of violations of the Crime Victim Rights Act and request for a hearing on appropriate remedies should be denied. Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4th Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter.lee(a)usdoLtov Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 8, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney 53 08-80736-CV-MARRA 000872 EFTA00230696

• . . Case 9:08-cv-80736-KAM Document 62 Entered on FLSD Docket 04/08/2011 Page 54 of 54 SERVICE LIST Jane Does 1 and 2 United States, Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Bradley J. Edwards, Esq., Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Fax: (954) 524-2822 E-mail: bradarloathtoiustice.com Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, Utah 841 12 (801) 585-5202 Fax: (801) 585-6833 E-mail: cassetp(4law.utah.edu Attorneys for Jane Doe # 1 and Jane Doe # 2 54 08-80736-CV-MARRA 000873 EFTA00230697

Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johason JANE DOE #1 and JANE DOE #2 I. UNITED STATES 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 COME NOW Jane Doe til and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to move this Court to accept all of their facts in their Motion for Finding of Violations of the Crime Victims' Rights Act. The victims have been attempting to negotiate with the Government for more than 30 months on a stipulated set of facts. Despite repeated opportunities to advise the victims of what facts they are contesting, the Government in the last few days has flatly declared that it will not discuss the facts in this case. This is violation of the Court's direction to the parties as well as the local rule on the subject. Accordingly, the Government should be deemed to have failed to contest the victims' facts and the Court should proceed to resolve this case on the basis of the victims' proffered facts. FACTUAL BACKGROUND The victims have been attempting to reach an agreement on the facts surrounding this case since filing their petition on June 7, 2008. In that petition, the victims' recited the facts as The petition was initially filed on behalf of Jane Doe #1. Jane Doe #2 was quickly added into the case. For simplicity, we will refer to the pleadings as having been filed by "the 1 08-80736-CV-MARRA 000874 EFTA00230698

•riccoo70•••••-•- -Ft Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 2 of 10 they understood them at the time — i.e., the victim asserted "upon information and belie?' that they understood that Epstein was involved in on-going plea negotiations with the U.S. Attorney's Office for the Southern District of Florida. Victims' Petition (doe. #1) at 1. On July 9, 2008, the Government responded with a sealed response (quickly unsealed by the Court), that stated that an agreement had already been reached with Epstein. Government's Response to Victims' Emergency Petition (dos. #13). Two days later, the victims replied, explaining that they were just learning these facts from the Government's pleading. See. e.g.. Victims' Reply to Government's Response (doe. #9) at 8. The Court quickly scheduled a hearing on the victims' petition, held on July 11, 2008. The Court discussed a need to "hav[e] a complete record, and this is going to be an issue that's ... going to go to the Eleventh Circuit, (so it] may be better to have a complete record as to what your position is and the government's is as to what actions were taken." Tr. at 25-26. Counsel for the victims explained: " . . . I will confer with the government on this and if evidence needs to be taken, it [can] be taken at a later date." Tr. at 26. The Court concluded the hearing with the following instructions: "So I'll let both of you confer about whether there is a need for any additional evidence to be presented. Let me know one way or the other. If there is, we'll schedule a hearing. If there isn't and you want to submit sonic additional stipulated information, do that, and then I'll take care of this in due course." Tr. at 32. The victims and the U.S. Attorney's Office then attempted to reach a stipulated set of facts underlying the case. The U.S. Attorney's Office offered a very abbreviated set of proposed facts, and the victims responded with a detailed set of proposed facts. Rather than respond to the victims." 2 08-80736-CV-MARRA 000875 EFTA00230699

tw•Iir"^" • • Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 3 of 10 victims' specific facts, however, the U.S. Attorney's Office suddenly reversed course. On July 29, 2008, it filed a Notice to Court Regarding Absence of Need for Evidentiary Hearing (dos. #17). The U.S. Attorney's Office took the following position: "After consideration, the Government believes that an evidentiary hearing is not necessary" (dos. #17 at 1). The Office asserted that the Court need only take judicial notice of the fact that no indictment had been filed against Epstein to resolve the case. On August 1, 2008, the victims filed a response to the Government's "Notice" (doe. #19), giving a proposed statement of facts surrounding the case. The proposed statement of facts highlighted the fact that the Government had signed a non-prosecution agreement containing an express confidentiality provision, which prevented the Government from disclosing the agreement to them and other victims. Id. at 5. The victims response also requested that the Court direct the Government to confer with the victims regarding the undisputed facts of the case, produce the non-prosecution agreement and other information about the case. Id at 14. On August 14, 2008, the Court held a hearing on the case regarding the confidentiality of the non-prosecution agreement. The Court ultimately ordered production of the agreement to the victims. After the U.S. Attorney's Office made the non-prosecution agreement available to the victims, the victims reviewed it and pursued further discussions with the U.S. Attorney's Office. Ultimately, however, the U.S. Attorney's Office declined to reach a stipulated set of facts with the victims and declined to provide further information about the case. With negotiations at an impasse, the victims attempted to learn the facts of the case in other ways. In approximately May 2009, counsel for the victims propounded discovery requests 3 08-80736-CV-MARRA 000876 EFTA00230700

Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 4 of 10 in both state and federal civil cases against Epstein, seeking to obtain correspondence between Epstein and prosecutors regarding his plea agreement — information that the U.S. Attorney's Office was unwilling to provide to the victims. Epstein refused to produce that information, and (as the Court is aware) extended litigation to obtain the materials followed. The Court rejected all of Epstein's objections to producing the materials. On June 30, 2010, counsel for Epstein sent to counsel for the victims approximately 358 pages of e-mail correspondence between criminal defense counsel and the U.S. Attorney's Office regarding the plea agreement that had been negotiated between them. See 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, Attachment "A." These e-mails fully disclosed for the rust time the extreme steps that had been taken by the U.S. Attorney's Office to avoid prosecuting Epstein and to avoid having the victims in the case learn about the non-prosecution agreement that had been reached between Epstein and the Government. In mid-July 2010, Jane Doe #1 and Jane Doe #2 settled their civil lawsuits against Epstein. Then, armed with the new information, they turned to moving forward in the CVRA case. On September 13, 2010, the victims informed the Court that they were preparing new filings in the case. On October 12, 2010, the Court entered an order directing the victims to provide a status report on the case by October 27, 2010. That same day, counsel for the victims again contacted the U.S. Attomey!s Office about the possibility of reaching a stipulated set of facts in the case. That same day, the U.S. Attorney's Office responded: "We don't have any problem with agreeing that a factual assertion is correct if we agree that is what occurred" (doc. #41 at 2). 4 08-80736-CV-MARRA 000877 EFTA00230701

Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 5 of 10 On October 23, 2010, the victims e-mailed to the U.S. Attorney's Office a detailed proposed statement of facts, with many of the facts now documented by the correspondence between the U.S. Attorney's Office and Epstein's counsel. The victims requested that the U.S. Attorney's Office identify which facts it would agree to. In a letter to the U.S. Attorney's Office, the victims stated: If you believe that any of the facts they propose are incorrect, Jane Doe #1 and Jane Doe #2 would reiterate their long-standing request that you work with us to arrive at a mutually-agreed statement of facts. As you know, in the summer of 2008 Jane Doe #1 and Jane Doe #2 were working with you on a stipulation of facts when you reversed course and took that position that no recitation of the facts was necessary (see doc. #19 at 2). . . . I hope that your e-mail means that you will at least look at our facts and propose any modifications that you deem appropriate. Having that evidence quickly available to the Court could well help move this case to a conclusion. That same day, the U.S. Attorney's Office agreed to forward the proposed statement of facts to the appropriate Assistant U.S. Attorney for review (doc. #41 at 2-3). On October 26, 2010, rather than stipulate to undisputed facts, the U.S. Attorney's Office contacted the victims' attorneys and asked them to delay the filing of their motion for a two-week period of time so that negotiations could be held between the Office and the victims in an attempt to harrow the range of disputes in the case and to hopefully reach a settlement resolution without the need for further litigation. Negotiations between the victims and the U.S. Attorney's Office then followed over the next two days. However, at 6:11 p.m. on October 27, 2010 — the date on which the victims' pleading was due — the U.S. Attorney's Office informed the victims that it did not believe that it had time to review the victims' proposed statement of facts and advise which were accurate and which were inaccurate. The Office further advised the victims that it believed that the victims did not have a right to confer with their Office under the CVRA in this case because in its view the case is "civil" litigation rather than the "criminal" litigation (doe. #41 at 3). 2 2 In seeming contradiction to this position, on March 17, 2011, the U.S. Attorney's Office 5 08-80736-CV-MARRA 000878 EFTA00230702

??.W•2;1,5,5;;; .. ---------- .. . Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 6 of 10 As a result, purely as an accommodation to the U.S. Attorney's Office, on October 27, 2010, the victims filed a report with the Court in which they agreed to delay filing their motion and accompanying facts for up to two-weeks to see if negotiations can resolve (or narrow) the disputes with the U.S. Attorney's Office (doe. #41 at 4). Discussions with the U.S. Attorney's Office dragged on, including a meeting between Jane Doe #1 and the U.S. Attorney in December 2010. After further discussions failed to produce any agreement or other visible progress, the victims informed the U.S. Attorney's Office that they would file their "summary judgment" motion with the Court on March 18, 2011 and requested further cooperation from the Office on the facts. Ultimately, after months of discussion, the U.S. Attorney's Office informed counsel for the victims that — contrary to promises made earlier to stipulate to undisputed facts — no such stipulation would be forthcoming. Instead, on March 15, 2011, the U.S. Attorney for the Southern District of Florida, Wilted° A. Ferrer, sent a letter to the victims declining to reach any agreement on the facts: Because, as a matter of law, the CVRA is inapplicable to this matter in which no federal criminal charges were ever filed, your requests for the government's agreement on a set of proposed stipulated facts is unnecessary and premature. That is, because whether the rights in 18 U.S.C. § 3771(a) attach prior to the filing of a charge in a federal court is a matter of statutory interpretation, resolution of that question is not dependent upon the existence of any certain set of facts, other than whether a charging document was ever filed against Jeffrey Epstein in the United States District Court for the Southern District of Florida. And while this Office remains willing to cooperate, cooperation does not mean agreeing to facts that are not relevant to the resolution of the legal dispute at issue .. . . informed the victims that it would not be making any initial disclosures to the victims as required for civil cases by Fed. R. Civ. P. 26(a)(1). The U.S. Attorney's Office did not explain why they believe that this rule of civil procedure is inapplicable if they think this case is properly viewed as a "civil" case. 6 08-80736-CV-MARRA 000879 EFTA00230703

1 • Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 7 of 10 Letter from Wifrcdo A. Ferrer to Paul G. Cassell (March 15, 2011).3 Accordingly, the victims were left with no choice but to file a motion without stipulated facts. Contemporaneously with the filing of this motion, the victims are filing a comprehensive Motion for Finding of Violations of the Cu= Victims' Rights Act and Request for a Hearing on Appropriate Remedies. The motion contains the detailed set of facts which the victims have long been attempting to discuss with the government. THE COURT SHOULD RESOLVE THE CASE ON THE BASIS OF THE VICTIMS' PROFFERED FACTS. In view of the deliberate decision by the U.S. Attorney's Office not to discuss with the victims which facts they are disputing, the Court should resolve this case on the basis of facts that the victims offer in their motion seeking a finding of violations of the CVRA. For more than 30 months, the victims have given the U.S. Attorney's Office repeated opportunities contest their facts, only to see the Office first commit to reviewing the facts, then later claim they did not have sufficient time to review the facts, and then ultimately renege on that commitment to review the facts. Indeed, the U.S. Attorney's Office now argues that the facts are "not relevant" to the court's determination. If so, the Court should take up the U.S. Attorney's Office's position and simply accept the facts that the victims proffer. If the U.S. Attorney's Office is correct that the facts are irrelevant, they should not be heard to object when the victims propose a specific set of facts for resolving this case. 3 To avoid any suggestion that the victims are disclosing confidential settlement discussions, we are not attaching a copy of this letter to this pleading. We believe, however, that this paragraph is relevant to the issue before the Court and have accordingly reproduced it. See Fed. R. Evict. 408(b) (while settlement discussions are generally inadmissible, they are permissible for purposes other than proving the validity of a claim). 7 08-80736-CV-MARRA 000880 EFTA00230704

Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 8 of 10 The Court should also accept the victims' facts because the U.S. Attorney's Office has violated the local rules regarding stipulating to facts. Local Rule 88.10(O) contains a broad, commonsense provision requiring the parties to work together to reduce disputes over the facts: The Local Rule provides: "The parties shall make every possible effort in good faith to stipulate to all facts or points of law the truth or existence of which is not contested and the early resolution of which will expedite the trial." For more than two-and-a-half years, the victims have been trying to get the U.S. Attorney's Office to stipulate to uncontested facts. The U.S. Attorney's Office, however, promised to do so, then refused to do so, then promised to do so, and now finally is refusing to do so. Because its failure to try and reach a stipulation is a clear violation of the local rule, the Court should simply adopt the victims' facts. The Court should also accept the victims' facts because the Government has failed in its duty to confer with the victims. Not only did this Court order counsel for the Government and the victims to confer at the conclusion of the July 11, 2008 hearing, but the Crime Victims' Rights Act specific afford to victims It]he reasonable right to confer with the attorney for the Government in the case." 18 U.S.C. § 3771(a)(5). A fundamental part of conferring about a case would at least be learning what the Government agrees were the facts in the case. But the Government is apparently unwilling to do even that. Accordingly, the Court should simply find that the victims' understanding of the facts is correct and proceed to resolve this case on that basis. CERTIFICATE OF CONFERENCE As recounted above, the victims have repeated sought to learn which facts the Government is disputing, but the Government has declined to review the facts with the victims. 8 08-80736-CV-MARRA 000881 EFTA00230705

1 rncrtrnr - 1 Case 9:08-cv-80736-KAM Document 49 Entered on FLED Docket 03/21/2011 Page 9 of 10 CONCLUSION For all the foregoing reasons, the Court should resolve this case on the basis of the facts that the victims have offered. DATED: March 21, 2011 Respectfully Submitted, s/ Bradley J. Edwards Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.I.. 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] 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: [email protected] Attorneys for Jane Doe #1 and Jane Doe #2 9 08-80736-CV-MARRA 000882 EFTA00230706

Case 9:08-cv-80736-KAM Document 49 Entered on FLSO Docket 03/21/2011 Page 10 of 10 CERTIFICATE OF SERVICE The foregoing document was served on March 21, 2011, on the following using the Court's CM/ECF system: A. Marie Villafafla 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.villafana(ieusdoj.gov Attorney for the Government Joseph L. Ackerman, Jr. Fowler White Burnett PA 777 S. Flagler Drive, West Tower, Suite 901 West Palm Beach, FL 33401 Criminal Defense Counsel for Jeffrey Epstei (courtesy copy of pleading via U.S. mail) 10 08-80736-CV-MARRA 000883 EFTA00230707

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 1 of 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOES #1 AND #2, Petitioners, UNITED STATES OF AMERICA, Respondent. UNITED STATES' RESPONSE IN OPPOSITION TO JANE DOES #1 AND #2'S MOTION TO HAVE THEIR FACTS ACCEPTED BECAUSE OF THE GOVERNMENT'S FAILURE TO CONTEST ANY OF THE FACTS IDE491 The United States, by and through the undersigned, hereby opposes Petitioners' Motion to have their "Statement of Undisputed Material Facts" accepted as true 03E49]. Petitioners argue that the Court should accept their Statement as true, despite its conclusory allegations and internal inconsistencies, solely because of the United States' failure to stipulate to the Statement. The Court should deny the motion because: (1) Petitioners have misstated that United States' efforts at reaching agreement on the Statement; (2) the "Undisputed Material Facts" are irrelevant, as Petitioners have previously acknowledged; (3) agreeing to the "Undisputed Material Facts" demanded by Petitioners would have required the United States to violated Federal Rule of Criminal Procedure 6(c) and/or constitutional and ethical mandates; and (4) the United States is not obligated to agree to any "facts," especially those that are incomplete or false. 08-80736-CV-MARRA 000884 EFTA00230708

tt, Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 2 of 15 BACKGROUND In DE 49, Petitioners ask the Court to accept as true their proposed "Statement of Undisputed Material Facts" contained in DE48 because they claim that the United States has failed "to advise the victims of what facts they are contesting." Petitioners then spend several pages making unsupported assertions and reciting from letters and email correspondence in an attempt to persuade the Court to adopt as true the Petitioners' averments even when the falsity of some of those "facts" is apparent from the text itself. Contrary to their assertions, the Petitioners have not been attempting to negotiate with the government for more than 30 months. As set forth in the Procedural History Section of the United States' Opposition to Jane Doe #1 and Jane Doe #2's Motion for Finding of Violations of the Crime Victim Rights Act ("CVRA"), at the last hearing on the Petitioners' Emergency Petition, on August 14, 2008, counsel for Petitioners stated to the Court, "I believe that you do have a sufficient record, in that 1 don't think that — I think that we're in agreement that additional evidence does not need to be taken in the case for Your Honor to make a niling." (DE27 at 4 (emphasis added).) Thereafter, there was no contact regarding the CVRA petitioner for years — until the Court issued its administrative order closing the case. A flurry of activity ensued. Efforts were made to resolve the matter amicably, without success, including allowing the Petitioners, that is Jane Does #1 and #2, and their counsel, the opportunity to meet with the U.S. Attorney, as Jeffrey Epstein's attorneys did.' Despite the Petitioners' earlier statement to the Court that no additional facts were needed, many hours were spent trying to revise the Petitioners' proposed statement of facts so that it would 'Only Jane Doe #1 and her counsel elected to attend a meeting with the U.S. Attorney. I 08-80736-CV-MARRA 000885 EFTA00230709

Case 9:08-cv-80136-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 3 of 15 contain only facts, not argument, not inferences, not incorrect innuendos.' Even after the U.S. Attorney's Office advised Petitioners that the Justice Department's position was that the CVRA's rights only attached upon the filing of federal criminal charges and, hence, that none of the Petitioners' proposed facts were relevant, further attempts were made. Petitioners' counsel, however, demonstrated no interest in proposed compromises. Specific factual corrections also were suggested and rejected' Thus, counsel for Petitioners know that some of the proposed "undisputed material facts" are in fact disputed and, in many cases, wrong. 2The U.S. Attorney's Office also repeatedly reminded Mr. Cassell of the Justice Department's policy not to comment on the guilt or innocence of an unconvicted person. The ABA's Model Rule of Professional Conduct on the SpecialResponsibilities of a Prosecutor contains similar guidance. For example, there has been no civil or criminal fording by any judge or jury that: defendant Jeffrey Epstein (a billionaire with significant with significant political connections) sexually abused more than 30 minor girls at his mansion in West Palm Beach (sic), Florida, and elsewhere. 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. (DEA8 at 3-4' 1.) Jane Does No. 1 and No. 2 had the opportunity to prove these allegations at trial but elected to sign confidential settlement agreements where, presumably, there was no acknowledgement of criminal or civil liability. Respectfully, the U.S. Attorney's Office cannot express a factual position, immaterial to the present litigation, on whether Jeffrey Epstein ('Epstein") committed crimes (other than those to which he pled guilty in Palm Beach County Circuit Court). 'For example, Petitioners were repeatedly advised the Epstein lived in Palm Beach, not West Palm Beach. Even this simple correction was ignored. (See DM8 at 3-4.) 3 08-80736-CV-MARRA 000886 EFTA00230710

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 4 of 15 ARGUMENT I. ALL OF THE "UNDISPUTED FACTS" ARE IRRELEVANT. In their motion asking the Court to accept as true all of their purported "undisputed material facts," Petitioners rely on only two citations, the CVRA's "right to confer with the attorney in the case" and Local Rule 88.10(0), which governs discovery in criminal cases. Local Rule 88.10(0) reads: "The parties shall make every possible effort in good faith to stipulate to all facts or points of law the truth and existence of which is not contested and the early resolution of which will expedite the trial." (Emphasis added.) Contrary to Petitioners' suggestion, reaching agreement on Petitioners' "Statement of Undisputed Material Facts" would not expedite the resolution of this matter. As the United States has explained since August 1, 2008, at the very start of the litigation, (see DEI9,) — and as admitted by Petitioners during the hearing on August 14, 2008, (see DE27 at 3) — no additional facts are needed for the Court to resolve the Emergency Petition and Petitioners' Motion seeking a finding that the CVRA was violated. The only material fact is that the United States Attorney's Office for the Southern District of Florida never filed federal °Whether or not the CVRA applies is the central question in dispute in this maser because no federal criminal case was ever filed against Jeffrey Epstein and one is certainly not pending now. The undersigned knows of no case where the •right to confer with the attorney in the case" has been interpreted to allow victims to demand that the Government confer repeatedly—even after good faith efforts at reaching compromise have failed — in a case filed by victims against the Government pursuant to the CVRA. Nonetheless, Petitioners' argument seems to be that, because they aver that the CVRA applies, the Government's failure to accord them their very expansive reading of the CVRA's "right to confer is a further violation of the CVRA. At least one court has noted and rejected this Catch-22: "the Court refuses to adopt an interpretation of [the CVRA] that prohibits the government from raising legitimate arguments in support of its opposition to a motion simply because the arguments in support of its opposition to a motion may hurt a victim's feeling or reputation. More pointedly, such a dispute is precisely the kind of dispute a court should not involve itself in since it cannot do so without potentially compromising its ability to be impartial to the government and defendant, the only true parties to the trial of the indictment" United States'. Rubin, 558 F. Supp. 2d 411, 428 (E.D.N.Y. 2008). 4 08-80736-CV-MARRA 000887 EFTA00230711

1 .i i r- ate': , Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 5 of 15 criminal charges against Jeffrey Epstein. That fact is undisputed. Accordingly, all of the "facts" contained in Petitioners' statement are not "material" and the resolution of those "facts" will not "expedite the trial." Quite simply, all of the allegations, inferences, and innuendos contained in Petitioners' statement serve no purpose relevant to this litigation. H. AGREEING WITH MANY OF PETITIONERS' "FACTS" WOULD HAVE VIOLATED FED. R. CRIM. P. 6(e) AND/OR CONSTITUTIONAL MANDATES. Several of the "facts" that Petitioners include allege that Epstein and others have committed crimes for which they were never charged or convicted. Others refer to matters that were occurring before the grand jury. The Federal Rules of Criminal Procedure, constitutional mandates, and the ABA Model Rules on the Special Responsibilities of a Prosecutor address several of the items to which the Petitioners asked the Government to agree. The Government correctly refused to agree to those "facts," and the Petitioners cannot now use that refusal to ask the Court to adopt those "facts" as true. A. Federal Rule of Criminal Procedure 6(e) Rule 6(e) states that "an attorney for the government" "must not disclose a matter occurring before the grand jury." Fed. R. Crim. P. 6(0)(2)(3).5 Courts have construed "a matter occurring before the grand jury" to include "events which have already occurred before the grand jury, such as a witness's testimony, [and] matters which will occur, such as statements which reveal the identity of persons who will be called to testify or which report when the grand jury will return an 5Pctitioncrs have no similar obligation. See Fed. R. Crim. P. 6(e)(2XA). 5 08-80736-CV-MARRA 000888 EFTA00230712

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 6 of 15 indictment.' In re Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir. 1980). While Petitioners were merely asking the Government to agree with their assertions of "fact" based upon materials Petitioners had received from counsel for Epstein, rather than asking the Government to make affirmative disclosures of grand jury material, "Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs." In re Motions of Dow Jones & Co., 142 F.3d 496, 505 (D.C. Cir. 1998) (quoting in re North,16 F.3d 1234, 1245 (D.C. Cir. 1994)). "[E]ven if material concerning the grand jury investigation had been disclosed to the public, the Government attorney ... had a duty to maintain grand jury secrecy. This attorney could neither confirm nor deny the information presented by the 'external party."' Senate of the Commonwealth of Puerto Rico'. United States Dep't of Justice, 1992 WL 119127 at *3 (D.D.C. May 13, 1992) (citing Barry. United States, 740 F. Supp. 888, 891 (D.D.C. 1990) ("Rule 6(e) does not create a type of secrecy 'It is worth noting that, within the same case, a court can take differing positions on this. Compare: [Title disclosure of information obtained from a source independent of the grand jury proceedings, such as a prior government investigation, does not violate Rule 6(e). A discussion of actions taken by government attorneys or officials, e.g., a recommendation by the Justice Department attorneys to department officials that an indictment be sought against an individual does not reveal any information about matters occurring before the grand jury. Nor does a statement of opinion as to an individual's potential criminal liability violate the dictates of Rule 6(e). With: Disclosures which expressly identify when an indictment would be presented to the grand jury, the nature of the crimes which would be charged, and the number of persons who would be charged run afoul of the secrecy requirements codified in Rule 6(e). In re Grand Jury Investigation, 610 F.2d at 217, 218. In light of such conflicting directives, the government must err, if at all, on the side of treating all information related to grand jury proceedings as "matters occurring before the grand jury." 6 08-80736-CV-MARRA 000889 EFTA00230713

1 Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 7 of 15 which is waived once public disclosure occurs. The Government is obligated to stand silent regardless of what is reported, accurate or not, by the press.").) The reasons for Rule 6(e) are multiple: In addition to preventing adverse pretrial publicity about a person who may be indicted and subsequently tried, secrecy protects the reputation of a person under investigation who is not indicted. The secrecy requirement also encourages reluctant witnesses to testify without fear of reprisals from those against whom testimony is given, prevents tampering with grand jury witnesses in an effort to alter their trial testimony, and 'permits the grand jury to deliberate free from the influence of publicity. Finally, secrecy prevents disclosures to persons who may be interested in the investigation if the facts are known or might attempt to escape if they have reason to believe certain indictments will issue. United States. Eisenberg, 711 F.2d 959, 961 (11th Cir. 1983) (citing United States. Procter & Gamble Co., 356 U.S. 677, 681 n.6 (1958)). Several of the "facts" contained in Petitioners' submission contain allegations related to matters occurring before the grand jury. Pursuant to Fed. R. Crim. P. 6(e), the Government cannot confirm or deny the accuracy of those allegations. B. Due Process and the ABA Rule for Prosecutors As noted above, one of the reasons behind 6(e) is to protect the reputations of persons who are under investigation but not indicted. This is a corollary to what the Court of Appeals found to be a due process protection afforded by the Fifth Amendment of the United States Constitution — namely, "that the liberty and property concepts of the Fifth Amendment protect an individual from being publicly and officially accused of having committed a serious crime, particularly where the accusations gain wide notoriety." See In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981) (citation 7 08-80736-CV-MARRA 000890 EFTA00230714

VA FA ri e' r Case 9:08-cv-80736-KAM Document 58 Entered on F LSD Docket 04/07/2011 Page 8 of 15 omitted)! In Smith, the petitioner filed a motion seeking to have his name stricken from the factual proffers of two criminal defendants. Smith had not been criminally charged or convicted. The Court of Appeals agreed with Smith, castigating the Government no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights... . [W]e completely fail to perceive how the interests of criminal justice were advanced at the time of the plea hearings by such an attack on the Petitioner's character. The presumption of innocence, to which every criminal defendant is entitled, was forgotten by the Assistant United States Attorney in drafting and reading aloud in open court the factual resumes which implicated the Petitioner in criminal conduct without affording him a forum for vindication. Id. at 1106, 1107. The Court of Appeals ordered the District Court Clerk's Office to "completely and permanently obliterate and strike from the records of the pleas of guilty . . . any and all identifying reference to or name of Mr. Smith, the Petitioner, so that such references may not be used as a public record to impugn the reputation of Petitioner." Id. at 1107. The Court further ordered that all of the pleadings in the case be sealed. Id. Courts have interpreted Smith to apply not only to references to unindicted co-conspirators in indictments and factual proffers, but also to motion papers. See, e.g.. United States'. Anderson, 55 F. Supp. 2d 1163, 1168 (D. Kan. 1999) ("After carefully reviewing the government's moving papers on the conflict of interest issue, the court can find no reason why the government might have 'forgotten' the presumption of innocence in such a public pleading .. .') (citing Smith, 656 F.2d at 1107); United States, Holy Land Foundation, 624 F.3d 685 (5th Cir. 2010) (Fifth Amendment rights of organization were violated when its name was listed among 246 unindicted coconspirators 'This opinion of the Fifth Circuit was made binding precedent in the Eleventh Circuit pursuant to Bonner'. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane). 8 08-80736-CV-MARRA 000891 EFTA00230715

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 9 of 15 in pm-trial brief). The Model Rules further advise prosecutors not to engage in comments that "have a substantial likelihood of heightening public condemnation of the accused." (ABA Model Rule 3.8.) In Petitioners' "Statement of Undisputed Material Facts," they included allegations related to crimes for which Epstein and several other individuals were neither charged nor convicted. Pursuant to Smith and its progeny, and as previously explained to Petitioners' counsel, the Government denies all such allegations, including but not limited to the allegations contained in paragraphs 1, 2, 4, 5, 10, 11, 17, 37, 52, and 53.s IR THERE IS NO LEGAL OBLIGATION THAT THE UNITED STATES ADMIT OR DENY THE PETITIONERS' "FACTS," MANY OF WHICH ARE FALSE. Although docketed as a Civil Case, the CVRA does not provide for a civil cause of action. See, e.g., 18 U.S.C. § 3771(dX6). Rather, the CVRA creates rights for victims in federal criminal cases where criminal charges have already been filed. 18 U.S.C. § 3771(bXI) ("In any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights described in subsection (a)."); see also Fed. R. Crim. P. 60 (incorporating CVRA into Federal Rules of Criminal Procedure). Thus, there is no obligation in this case, as there might be in a case governed by the Federal Rules of Civil Procedure where sovereign immunity was waived, that requires the United States to make any evidentiary disclosures. Petitioners next rely on Local Rule 88.10(O), which governs discovery in criminal cases. First, no standing discovery order has been entered because no criminal proceedings are pending. aft should be noted that Petitioners preface many of these allegations with afalse imprimatur of FBI findings. Compare, for example, paragraph 5 with the pages cited in support thereof. 9 08-80736-CV-MARRA 000892 EFTA00230716

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 10 of 15 Second, victims are not "parties" to criminal proceedings. See, e.g., In re Amy Unknown, F.3d 2011 WL 988882 at •2 (5th Cir. Mar. 22, 2011). ("Crime victims have not been recognized as pasties, and the Federal Rules of Criminal Procedure do not allow them to intervene as pasties to a prosecution.); United States'. Aguirre-Gonzalez, 597 F.3d 46, 53 (1st Cir. 2010) ("Notwithstanding the rights reflected in the restitution statutes, crime victims are not parties to a criminal sentencing proceeding.). Third, many of Petitioners' asserted "facts" are not facts at all, but instead arc inferences, legal conclusions, or innuendos. And, most importantly, many arc plainly false. As stated above, the United States does not believe that any of these issues arc material to the resolution of the Emergency Petition or Jane Does #1 and #2's Motion for Finding of Violation of the CVRA [DE1 and DE48]. Nonetheless, to correct misstatements in the record, the United States points out the following examples of areas where Petitioners have included "undisputed facts" that arc known to them to be in dispute. Prior to Epstein's state court plea, Jane Doe #2 was represented by counsel for Epstein, was adverse to any investigation of Epstein, and contacted other potential victim-witnesses and advised them not to speak to investigators. When interviewed by the FBI and the U.S. Attorney's Office, Jane Doe #2 denied any sexual abuse by Epstein and said that Epstein was an "awesome man" and that she would marry hint Jane Doe #2 further expressed a belief to the government that Epstein should not be prosecuted. Jane Doe #2 not only made the government's investigative efforts more difficult, she also made the victim notification process more difficult. A great deal of the complaints made by the Petitioners come from the delay between the time that Epstein signed the NPA on September 24, 10 08-80736-CV-MARRA 000893 EFTA00230717

• Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 11 of 15 2007, and when he actually entered his guilty plea on June 30, 2008. (See DE 48 at V 25, 32, et seq.) As set forth in their "Statement of Undisputed Facts," this was the period when Epstein "sought higher level review within the Department of Justice." (Id. at 1 32.) As is known to Petitioners, but as they neglected to mention in their "Statement of Undisputed Material Facts," one of the unfounded allegations made against AUSA Villafafia by Epstein's counsel during the "higher level review" was that she "wrongfully" tried to include Jane Doe #2 among the list of Epstein's victims. Ironically, these same attempts to protect lane Doe #2's rights are now being used by Jane Doe #2 to allege violations of the CVRA. Petitioners also allege that the letters sent to Jane Doe #1 and Jane Doe #2 during the period when Epstein was pursuing Justice Department review, which stated that their cases were still under investigation, were false. Yet Petitioners know that the investigation was ongoing because, as stated in their own "Statement of Undisputed Material Facts," on "January 31,2008, Jane Doe #1 met with FBI Agents and AUSA's from the U.S. Attorney's Office." (DE48 at 17.) And another individual represented by Petitioners' counsel was interviewed on May 28, 2008. These and other interviews were conducted so that, if Epstein did not follow through with the NPA, the Office would be ready to address that situation as appropriate. Thus, the investigation was, in fact, continuing. The Petitioners also know that the terms of the NPA were disclosed to Jane Doe #1 shortly after the NPA was signed. Jane Doe #1 avers that she believed that Epstein agreed to pay damages to her, but agreed that he would still be federally prosecuted for criminal charges based on crimes allegedly committed against her. Petitioners aver that it is a "fact" that this was a "quite reasonable understanding." (DE48 at 12.) The Government denies that this is what Jane Doe #1 was told (see DE14), although there could have been an honest misunderstanding. The Government denies, 11 08-80736-CV-MARRA 000894 EFTA00230718

1 Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 12 of 15 however, that it was "quite reasonable" to believe that a criminal defendant would agree to pay damages to Jane Doe #1 as part of his resolution of a criminal case involving another victim while still agreeing that he could be criminally charged for acts involving Jane Doe #1. Furthermore, Petitioners know well that one of the reasons why the terms of the NPA were not disclosed to additional victims when Epstein began appealing to the Justice Department was because of concerns that, if Epstein did not follow through with the NPA and federal criminal charges were thereafter filed against him, Epstein's counsel would argue at trial that the victims had been told, by the prosecution team, that they would receive money if they claimed that they had been victimized by Epstein. l'his was not a frivolous concern; such allegations actually were raised by Epstein's counsel in depositions of some of the identified victims that were filed before this Court. Petitioners also suggest that efforts were made to move proceedings to Miami to keep these Petitioners from learning of court proceedings. Yet, it is undisputed that Petitioners were notified, through counsel, of the only public court proceeding — Epstein's state court plea and sentencing — and were specifically invited to attend. The Petitioners also know that some of the victims in the ease were terrified that their family members might learn of their connection to the investigation and that other victims had privacy concerns that were very different than those of Petitioners. Having the proceedings outside the glare of the victims' hometown press would have allowed those other victims to participate while maintaining some semblance of privacy. Petitioners also reiterate baseless allegations made against AUSA Villafalia regarding the choice of the attorney-representative for the victims, despite knowing that: (1) the issue of the attorney-representative arose after the NPA was already negotiated; (2) the Justice Department investigated these allegations and found them to be meritless; and (3) the U.S. Attorney's Office 12 08-80736-CV-MARRA 000895 EFTA00230719

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 13 of 15 elected to use a Special Master (retired U.S. District Court Judge Edward Davis) to make the final selection. The Petitioners also know that the AUSA, the agents, and the FBI's victim-witness coordinator obtained counseling services for some of the identified victims. And Petitioners are well aware that the AUSA even provided notifications of Epstein's work release status. Paragraph 17 of Petitioners' filing also misstates a provision of the NPA. Petitioners stated that Iltjo 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[.]" Section 2255 actually provides minimum presumed damages of $150,000, not a "cap" of $150,000. There are a number of additional inferences and legal conclusions interspersed in the "Statement of Undisputed Material Facts," which the Government denies. For example, contrary to Petitioners' contentions, the Government denies that notifying the victims about the NPA would have violated the NPA (DE48 at 10, ¶ 18); and that the U.S. Attorney's Office wanted the NPA to be kept confidential to avoid public criticism or to avoid victims from convincing "the judge reviewing the agreement not to accept it" (DE48 at 11, 1 19). The Government denies these and all other unsupported innuendos advanced by Petitioners. CONCLUSION For the reasons set forth herein and in the United States' Response to Jane Does #1 and #2's Motion for Finding of Violations of the Crime Victims Rights Act and Request for a Hearing on Appropriate Remedies, the Petitioners' "Statement of Undisputed Facts" is completely irrelevant to the Court's determination of the merits of this case. As both of the parties agreed shortly after the 13 08-80736-CV-MARRA 000896 EFTA00230720

• w'rern"---- 1 - • Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 14 of 15 filing of the Emergency Petition, the Court had all of the relevant facts back in August 2008 and the matter was ready to be decided. Petitioners cannot demand that the Government agree to their allegations, innuendos, and legal conclusions, especially when many of them would run afoul of Rule 6(e) and the Fifth Amendment and others are clearly false. Accordingly, Petitioners' Motion to Have Their Facts Accepted should be denied. Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4' Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter. lee(ratusdoi•nov Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 7, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney 14 08-80736-CV-MARRA 000897 EFTA00230721

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 15 of 15 SERVICE LIST Jane Does 1 and 2 United States, Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Bradley J. Edwards, Esq., Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Fax: (954) 524-2822 E-mail: bradtkpathtoiustice.com Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, Utah 84112 (801) 585-5202 Fax: (801) 585-6833 E-mail: casselrQlaw.utah.edu Attorneys for Jane Doe # 1 and Jane Doe # 2 15 08-80736-CV-MARRA 000898 EFTA00230722

Case 9:08-cv-80736-KAM Document 50 Entered on FLS0 Docket 03/21/2011 Page 1 of 15 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80136-Civ-Mant/Johnson JANE DOE #1 and JANE DOE #2 I UNITED STATES JANE DOE #1 AND JANE DOE #2'S MOTION FOR ORDER DIRECTING THE U.S. ATTORNEY'S OFFICE NOT TO WITHHOLD RELEVANT EVIDENCE COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to move for an order from this Court directing the U.S. Attorney's Office not to suppress material evidence relevant to this case. The Court should enter an order, as it would in other criminal or civil cases, requiring the Government to make appropriate production of such evidence to the victims. BACKGROUND In discussions with the U.S. Attorney's Office about this case, counsel for Jane Doe #1 and Jane Doe #2 inquired about whether the Office would voluntarily provide to the victims information in its possession that was material and favorable to the victims' case. Victims' counsel pointed out that, if they were criminal defense attorneys representing criminals, the Office would promptly turn over all information in its possession that was helpful to these criminals under Brady. Maryland, 373 U.S. 83 (1963), and related decisions. Victims' counsel asked the Office to extend to the victims the same assistance that it would provide to criminal 1 08-80736-CV-MARRA 000899 EFTA00230723

C. nee ..... • y••••••••••••••••,••••••••, ••• • Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 2 of 15 defendants — i.e., to voluntarily provide to the victims information in its possession that was favorable to the victims' CVRA case. In response, victims' counsel were informed by the Office that it could - and would -- withhold from the victims such information, apparently on the theory that the CVRA does not apply to these case or on the theory victims lack due process rights under the CVRA. The victims accordingly have been forced to file this motion, seeking an order from the Court directing the U.S. Attorney's Office to produce to the victims favorable information. The victims are entitled to such information for four separate reasons. First, the U.S. Attorney's Office is statutorily-obligated to use it "best efforts to see that crime victims are . . . accorded[] the rights described in [the CVRA]." 18 U.S.C. § 3771(cX1) (emphasis added). The Office flouts this best efforts obligation when it deliberately withholds favorable information from the victims. Second, just as criminal defendants are entitled to receive favorable information in the Government's possession under due process rights, see, e.g., Brady. Maryland, 373 U.S. 83 (1963), victims are entitled to receive favorable information under their CVRA "right to be treated with faimess," 18 U.S.C. § 3771(aX8) — a right that clearly includes due process considerations. The U.S. Attorney's Office is not treating the victims with fairness if it withholds the very information that might enable them to prove their case. Third, the U.S. Attorney's Office has obligations under the civil discovery rules to voluntarily provide information to the victims. See Fed. R Civ. P. 26(a)(1) (initial disclosures in civil cases). The victims' action has been opened as a civil case, and the U.S. Attorney's Office has previously argued that it should be treated as a civil case. Proceeding on this basis, the 2 08-80736-CV-MARRA 000900 EFTA00230724

_ XVIS#0.0),""'""," Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 3 of 15 ordinary civil discovery rules apply and the U.S. Attorney's Office should disclose relevant documents "without awaiting a disciivery request." Fed. R. Civ. P. 26(aXI)(A). Finally, a decision by the U.S. Attorney's Office to withhold information relevant to this case has serious ethical ramifications. The attorneys have a duty of candor to the Court. It is not immediately clear how the U.S. Attorney's Office can satisfy those obligations while concealing information that might enable the victims to prove their case. For all these reasons, the Court should enter an order directing the U.S. Attorney's Office to produce to the victims all information in its possession favorable to the victims. A proposed order to that effect is attached to this pleading, largely tracking the standard discovery order that this Court routinely enters in criminal cases. DISCUSSION I. THE GOVERNMENT VIOLATES ITS "BEST EFFORTS" OBLIGATIONS IF IT WITHOLDS EVIDENCE FAVORABLE TO THE VICTIMS. The U.S. Attorney's Office is obliged to produce favorable information to the victims because of the CVRA's requirement that prosecutor use their "best efforts" to protect crime victims' rights. The CVRA 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(cX1) (emphasis added). It is hard to understand how the Government can argue with a straight face that it is using its "best efforts" to protect victims' rights while simultaneously withholding readily-identifiable documents from the victims that might allow them to protect those very rights. If a best efforts 3 08-80736-CV-MARRA 000901 EFTA00230725

Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 4 of 15 obligation means anything, it must mean that the U.S. Attorney's Office cannot suppress favorable information. This understanding of the best efforts obligation is confirmed by the plain meaning of the phrase "best efforts." That phrase is generally understood as requiring "[djiligent attempts to carry out an obligation." BLACK'S LAW DICTIONARY 169 (8i6 ed. 2004). See generally E. Allen Farnsworth, CM Trying to Keep One's Promises: The Duo, of Best Efforts in Contract Law, 46 U. Pin. L. REV. 1, 8 (1984). As a result, "[Nest efforts are measured by the measures that a reasonable person in the same circumstances and of the same nature as the acting party would take." BLACK'S LAW DICTIONARY 169 (8i° ed. 2004). A reasonable prosecutor who is obligated to work to "accord" crime victims their rights, 18 U.S.C. § 3771(c)(1), would not simultaneously deny victims access to the very evidence that could help them protect their rights. Put another way, an obligation to use "best efforts" is usually understood "in the natural sense of the words as requiring that the party puts its muscles to work to perform with full energy and fairness the relevant express promises and reasonable implications therefrom." Stabile'. Stabile, 774 N.E.2d 673, 676 (Mass. App. Ct 2002). Here, far from putting its full energies towards protecting victims' their rights, the U.S. Attorney's Office is devoting its energies to blocking those rights. The cases construing "best efforts" language have routinely recognized that this language can create affirmative obligations to act. See, e.g., Hughes Communications Galaxy, The. United States, 26 Cl. Ct. 123, 135 (1992) ("A best efforts clause . . . can also affirmatively obligate."). Here, the action that is affirmatively required by the U.S. Attorney's Office is to produce readily- identifiable information that will assist the victims. 4 08-80736-CV-MARRA 000902 EFTA00230726

1 Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 5 of 15 It is also important to recognize that the victims here are not seeking to force some kind of burdensome wild goose chase on the U.S. Attorney's Office. In their letter to the U.S. Attorney requesting relevant evidence, the victims offered to provide a list of specific items they were seeking: "To avoid burdening your Office, we would be happy to provide a specific list of the information that we believe is material to the victims' CVRA case — a limited amount of information that could be swiftly located by your Office." Letter from Bradley J. Edwards & Paul G. Cassell to Wifiedo A. Ferrer, Mar. I, 2011. The victims have, for example, requested that the U.S. Attorney's Office provide to them unredacted copies of correspondence between the U.S. Attorney's Office and Jeffrey Epstein. Through civil discovery from Epstein, the victims have obtained half of that correspondence — the words written by the U.S. Attorney's Office — but arc lacking the other half — the words written in reply by Epstein's counsel. This correspondence specifically discusses crime victims' rights, so it is obviously quite material to the victims' case. The U.S. Attorney's Office could obviously provide this information without much difficulty. But instead, the Office has refused to provide to the victims any of the correspondence — or, indeed, any other similar information that might assist the victims. For all these reasons, the Court should find that the Department's "best efforts" obligations require it to produce to the victims information favorable to the victims' case. II. THE VICTIMS HAVE A DUE PROCESS RIGHT TO ACCESS TO FAVORABLE EVIDENCE UNDER THEIR CVRA "RIGHT TO BE TREATED WITH FAIRNESS." The victims are also entitled to receive favorable evidence in the Government's possession for the same reason that criminal defendants receive such information: fundamental considerations of fairness require that the Government not deliberately withhold relevant 5 08-80736-CV-MARRA 000903 EFTA00230727

Case 9:08-cv-80736-KAM Document 5O Entered on FLSD Docket 03121/2011 Page 6 of 15 information contrary to its position in court. For criminal defendants, this principle traces back to the landmark decision of Brady I. Maryland, 373 U.S. 83, 87 (1963), in which the Court explained the production of exculpatory evidence is a principle designed for avoidance of an unfair trial to the accused. Society wins not only when the guilty are convicted but when criminal trials are fair, our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: "The United States wins its point whenever justice is done its citizens in the courts." A prosecutor that withholds evidence on demand of an accused which, if made available would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice ... . Id. at 87-88. Of course, precisely the same points can be made here about production of evidence to crime victims. The Justice Department will "win its point if justice is done" to crime victims in this case — but justice can be done only if these proceedings are fair, in the sense that all relevant infonnation is provided to the court. To have this case move forward with the prosecutors withholding material information is to truly cast them "in the role of an architect of a proceeding that does not comport with standards of justice." To be sure, the victims in this case do not rely on a federal constitutional right to due process. But they have a parallel statutory right under the CVRA, which promises victims of crime that they will be "treated with fairness." 18 U.S.C. § 3771(a)(8). The clear intent of Congress in passing this provision was to provide a substantive "due process" right to crime victims. As one of the CVRA's co-sponsors (Senator Kyl) explained, "The broad rights articulated in this section [§ 3771(a)(8)] are meant to be rights themselves and arc not intended to just be aspirational. One of these rights is the right to be treated with fairness. Of course, fairness includes the notion of due process. Too often victims of crime experience a secondary 6 08-80736-CV-MARRA 000904 EFTA00230728

rflARleer Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 7 of 15 victimization at the hands of the criminal justice system. This provision is intended to direct Government agencies and employees, whether they are in executive or judiciary branches, to treat victims of crime with the respect they deserve." 150 CONG. REc. S4269 (Apr. 22, 2004) (emphasis added). Because the CVRA extends a "due process" right to crime victims like Jane Doe #1 and Jane Doe #2, victims have a right to fair access to evidence to prove their case. The very foundation of the Brady obligation is such a notion of due process: "[T]he suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment." Brady' Maryland, 373 U.S. 83, 87 (1963). It would similarly violate due process — and thus not treat victims with "fairness" — for the prosecution to suppress evidence favorable to a crime victim where the evidence is material either to proving a CVRA violation or to the remedy for a violation. The Brady principles are well understood, and the Government does not have difficulty in providing favorable information to criminal defendants. For example, it is our understanding that such discovery was provided by the government to Jeffrey Epstein during the course of negotiations that led to the non-prosecution agreement in this case. If the Government's obligations to see "that justice is done," Brady, 373 U.S. at 87, requires it to produce helpful information to a sex offender, surely principles of fairness require the same kind of production to the sex offender's victims when they are properly pursuing a contested case against the Government before this Court. The familiar Brady principles are so commonplace that this Court routinely enters a "Standing Discovery Order" in criminal cases directing the Government to provide favorable 7 08-80736-CV-MARRA 000905 EFTA00230729

---- Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 8 of 15 evidence to the defendant. The Order typically provides: "The government shall reveal to the dcfendant(s) and permit inspection and copying of all information and material known to the government which may be favorable to the defendant on the issues of guilty or punishment within the scope of Brady'. Maryland, 373 U.S. 83 (1963), and United States. Agars, 427 U.S. 97 (1976)." See, eg., Standing Discovery Order, United States. Enriquex, No. 1:10-CR-20488- MGC (July 9, 2010) (doc. #115). These Standing Discovery Orders follow from identical language in the local rule on these issues. See Local Rule 88.10. Interesting, the Standing Discovery Order— and associated local rule 88.10(O) — contains a broad, commonsense provision which the Government has plainly violated in this case. The Order provides: "The parties shall make every possible effort in good faith to stipulate to all facts or points of law the truth or existence of which is not contested and the early resolution of which will expedite the trial." For more than two-and-a-half years, the victims have been trying to get the Government to stipulate to undisputed facts, precisely as the Court's rules envision. ' The Government, however, has refused to do so. It is a simple matter to tailor the Standing Discovery Order from a situation involving a criminal defendant's need for information to the current situation of a crime victim's need for information. A proposed order to that effect is attached to this pleading, largely tracking the language of the Standing Discovery Order. The Court should enter that order. The Court has its own obligations to ensure that victims' rights are protected. The CVRA directs that "[i]n any court proceeding involving an offense against a crime victim, the court shall ensure that the crime victim is afforded the rights [described in the CVRA]" — rights that include a right to "be 8 08-80736-CV-MARRA 000906 EFTA00230730

_ __ ________ _ ____ . • ^om >u.. t 4 Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 9 of 15 treated with fairness?' See 18 U.S.C. § 3771(b)(I), (a)(8). The Court should ensure fair treatment for the victims by directing the Government to produce relevant evidence. ILL THE VICTIMS ARE ENTITLED TO DISCLOSURE UNDER THE FEDERAL RULES OF CIVIL PROCEDURE. The victims are further entitled to receive information favorable to them under the rules civil procedure. The victims' petition seeking to set aside the non-prosecution agreement has been opened as a civil case — as reflected in the case number the matter has borne for the last two-and-a-half years: 9:08-CV-80736-Marra/Johnson. Indeed, the Government has seized on this point to deny the victims rights that they would otherwise enjoy in a criminal case. For example, on October 27, 2010, the U.S. Attorney's Office advised Jane Doc #1 and Jane Doe #2 that the Office was taking the position that they did not enjoy a right "to confer" with the Office under the CVRA, 18 U.S.C. § 3771(aX5), in this enforcement action because the action was "civil" litigation rather than criminal litigation. See Doc. #41 at 1-2. If the U.S. Attorney's Office is correct that this matter is "civil" litigation, then the Federal Rules of Civil Procedure govern discovery. See Fed. R. Civ. P. 1 ("These rules govern the procedure in all civil actions and proceeding in the United States district courts . . . .").' Under those Rules, generous discovery is provided. Of particular relevance to this motion is the requirement under Fed. R. Civ. P. 26(aXI)(A) that parties are automatically required produce relevant information to a case without waiting for a discovery request. in light of the Government's position that this case is civil litigation, the victims have been making (and are Rule 1 note that there are certain limitations to application of the Civil Rules, found in Fed. R. Civ. P. 81. None of the limitations in Rule 81 (e.g., for bankruptcy and citizenship proceedings) apply in this case. 9 08-80736-CV-MARRA 000907 EFTA00230731

4 . . X --- ."-e/447," Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 10 of 15 continuing to make) initial disclosures consistent with Rule 26(aXI)(A). But the U.S. Attorney's Office has recently informed the victims that they do not believe that this Rule applies to their case and that they will not be making any such disclosures. Accordingly, the victims seek an order from the Court requiring the ordinary kinds of document production that are made in civil cases. To order the Government to make such production, the Court need not engage in metaphysical ruminations about whether this CVRA enforcement action is ultimately a "civil" case or a "criminal" case. For purposes of this motion, it is enough to say that the Government has taken the position that it is a civil action and therefore the Government must at least carry through on the discovery obligations that attend civil cases. Moreover, Congress clearly allowed the filing of this action in this Court. See 18 U.S.C. § 3771(dX3) (allowing assertion of CVRA rights "in the district court in which a defendant is being prosecuted or, if no prosecution is underway, in the district court in the district in which the crime occurred."). Congress did not specify whether such actions would be civil or criminal in nature. But Congress no doubt envisioned at least a minimum level of cooperation with victims by the Government Congress, in fact, mandated prosecutors to make their "best efforts" to afford victims their rights. In a case such as this one where there is a dispute about the factual events surrounding, it makes sense to read the CVRA has at least giving victims access to information that might prove their case rather than permitting the Government to suppress such evidence. The Court should accordingly require the Government to make the disclosures that it would ordinarily make in a civil case. The proposed order attached to this pleading includes a provision to that effect. 10 08-80736-CV-MARRA 000908 EFTA00230732

I 1 fam , P,.', . 73- • . . Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 11 of 15 IV. ALLOWING THE GOVERNMENT TO WITHHOLD RELEVANT EVIDENCE WOULD RAISE SERIOUS ETHICAL ISSUES. On a final note, it is worth considering the ethical ramifications of the Government's stark position that it can withhold even relevant and material evidence from the victims in this case. Prosecutors, no less than other attorneys, have duties of candor to the Court that would not permit them to present evidence or testimony to the Court that is known to be false. Fla. Bar Rule 4-3.3(a)(4). Allowing the victims access to evidence favorable to their claim will insure compliance with this rule. Similarly, in an ex pane proceeding, a lawyer must inform the court of all material facts known to the lawyer that will enable the court to make an informed decision "whether or not the facts are adverse." Fla. Bar. Rule 4-3.3(d). If the U.S. Attorney's Office is correct that the victims are not entitled to access to favorable evidence, then the proceedings involving that evidence are essentially ex pane — requiring the Office to make disclosures to the Court with notice to the victims. An illustration of this problem comes from the sworn declaration filed by one of the AUSA's in this case in support of the Government's response to the victims' petition. This sworn affidavit recounts a provision in the non-prosecution agreement that would have placed victims of Bpstein's sexual abuse in "the same position as they would have been had Mr. Epstein been convicted at trial." Declaration of Marie Villafana, July 9, 2008 (doe. #14) at 3-4. The affidavit also goes on to say that "these provisions were discussed," id. at 4, apparently referring to this provision. Id. (noting that "as explained above" there was a remedy for crime victims). And the declaration notes that on July 9, 2008, the victims in this case (including Jane Doe #I) were notified about the existence of this provision. 11 08-80736-CV-MARRA 000909 EFTA00230733

Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 12 of 15 On October 9, 2008, victims' counsel wrote to government counsel, pointing out that this declaration appeared to be (albeit inadvertently) false in two important respects. First, the quoted provision was not actually in the non-prosecution agreement. And second, if it was discussed with Jane Doe #1, for example, then that would have created false impression. Victims' counsel asked for a clarification to be filed with the Court about these two points. See Exhibit "A." In response, on December 22, 2008, the government filed a supplemental declaration. Doc. #35. The corrective supplemental declaration addressed the first point, agreeing that the information was false. The supplemental declaration, however, did not address the second question of whether this false information had previously been discussed with the crime victims. Moreover, the supplemental declaration raised additional question about Epstein's role in the false information. The supplemental declaration states the Epstein's attorney's approved the transmission of false information to the victims on and about July 9, 2008. Doc. #35 at 2. But none of the underlying information regarding the approval of that false information is included in the supplemental declaration. Rather than have the government serving as the exclusive conduit for information to the Court about these subjects, it seem more consistent with the spirit of the ethical rules — and with the general obligations of disclosure discussed previously in this pleading — for the Government to make available to the victims all material and favorable information. For example, the Government could provide to the victim the underlying correspondence with Epstein's attorneys approving the transmission of this false information. This information will be highly relevant to the victims' position that the non-prosecution agreement should be set aside in view of violations 12 08-80736-CV-MARRA 000910 EFTA00230734

-, • A- 7 Case 9.08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 13 of 15 of the victims' rights. The Court should accordingly order production of this and other similar favorable evidence to the victims. CERTIFICATE OF CONFERENCE As recounted above, counsel for Jane Doe #1 and Jane Doe #2 have repeatedly requested that the U.S. Attorney's Office voluntarily stipulate to undisputed facts in this case and provide material information favorable to the victims case for more than two and a half years. The U.S. Attorney's Office, however, takes the position that the victims are not entitled to any such information. CONCLUSION For all the foregoing reasons, the Court should order the U.S. Attorney's Office to produce information favorable to the victims. A proposed order to that effect is attached. DATED: March 21.2011 Respectfully Submitted, s/ Bradley 3. Edwards 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: bradigpathtojustice.com and 13 08-80736-CV-MARRA 000911 EFTA00230735

rr.',7774— ralnraern rr — 7 v Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 14 of 15 Paul O. Cassell Pro Hac Vice 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: casselloRlaw.utah.edu Attorneys for Jane Doe #1 and Jane Doe #2 14 08-80736-CV-MARRA 000912 EFTA00230736

Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 15 of 15 CERTIFICATE OF SERVICE The foregoing document was served on March 21, 2011, on the following using the Court's CMIECF system: A. Marie Villafrula 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.maric.c.villafanarbrusdoi.gov Attorney for the Government Joseph L. Ackerman, Jr. Joseph Ackerman, Jr. Fowler White Burnett PA 777 S. Plagler Drive, West Tower, Suite 901 West Palm Beach, FL 33401 Criminal Defense Counsel for Jeffrey Epstein (courtesy copy of pleading via U.S. mail) 15 08-80736-CV-MARRA 000913 EFTA00230737

r7nntr.if"'" • Case 9:08-cv-80736-KAM Docurnor450L1A w Eptyppeop FLSD Docket 03121/2011 Page 1 of 2 • aitadedataa% • AND ASSOCIATES October 9, 2008 Dexter Lee, AUSA United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 Re: Jane Doe # and Jane Doe #2 United States of America Case No.: 08-80736-CIV-MARRA/JOHNSON Dear Mr. Lee: I am writing to call to your attention two potentially false statements that the Government made, albeit inadvertently, in a sworn declaration submitted to the Court in connection with the above-captioned case. I request that your office file a corrected declaration and accompanying explanation. The first statement is found at page 3 to 4 of the July 9th, 2008 declaration of Marie Villafafia. There a provision in a plea agreement with Mr. Jeffrey Epstein is recounted. As we understand the Government's current position in this case, it is that this provision is not in fact part of the plea agreement in this case. If our understanding is correct, then Ms. Villafafia has filed a false affidavit with the court, albeit inadvertently. We respectfidly request that she file a new affidavit that corrects this false information, along with all other information relevant to understanding how the false information came to be provided to the court — and to the victims in this case. This correction should, in my view, include more details about how Epstein and his attorneys approved a submission of false information to the victims as you stated on Page 5, n.2 in your October 8, 2008 filing "Respondent's Opposition to Victims' Motion to Unseal Non- Prosecution Agreement" — presumably knowing that litigation surrounding the victims' rights issues was on-going and that such false information might be ultimately presented to the court. Such information is highly relevant to what remedy the victims might ultimately choose to seek for violations of their rights in this case. The second statement may or may not be false, but may need some clarification. At page 4 of Ms. Villafafia declaration, she states that lila October 2007, shortly after the agreement was signed, four victims [including C.W.] were contacted and these provisions were discussed' (emphasis added). Similarly at page 5, the declaration states: "After C.W. had been notified of the terms of the agreement " (emphasis added). I write to inquire whether, in view of the fact that the provision noted above is not in fact (according to the Government's current view) part of the. plea, agreement, whether this was the.provision that the government. inaccuratelyi discussed with the victims. Put another way, I am wondering whether the Government will now stipulate that it, at most, discussed with the victims a provision in the plea agreement that never was actually part of the plea agreement. 2028 HARRISON STREST,SUITS 202, HOLLYWOOD, FLORIDA 33020 01711011 984-414-8033/305-935-2011 FAXi 954-924-1530/305-935-4227 BRIMADRDWARDSLAW.0011 08-80736-CV-MARRA 000914 EFTA00230738

Case 9:08-cv-80736-KAM Document 50-1 Entered on FLSD Docket 03/21/2011 Page 2 of 2 Dexter Lee, AUSA United States Attorney's Office October 9, 2008 Page Two I continue to be interested in working out a joint stipulation of proposed facts in this case with the Government. If you would like to proceed in that direction, please give me a call. If, however, the Government is not willing to work out a joint stipulation of facts, then 1 need to have the record be as clear as possible, and at a minimum would request that the Government correct the inaccurate information it has provided to the court and clarify precisely how such inaccurate information came to be made a part of the record and the extent to which Mr. Epstein, through his attorneys, was culpable. Sincerely, BE/sg Brad Edwards 2028 minnow 8TRXIT,8171T11 202, HOLLYWOOD, FLORIDA 33020 OFFICE: 954-414-8033/305-935-2011 FARz 954 - 924 - 1530/305-955-4227 BRORADIDWARDSLAW.0O11 08-80736-CV-MARRA 000915 EFTA00230739

Case 9:08-cv-80736-KAM Document 50-2 Entered on FLSD Docket 03/21/2011 Page 1 of 2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 0880736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 I UNITED STATES 'PROPOSED' ORDER GRANTING JANE DOE #1 AND JANE DOE #2'S MOTION FOR ORDER DIRECTING THE U.S. ATTORNEY'S OFFICE NOT TO WITHHOLD RELEVANT EVIDENCE THIS CAUSE comes before the Court on Jane Doe #1 and Jane Doe #2's Motion for Order Directing the U.S. Attorney's Office Not to Withhold Relevant Evidence, filed March 21, 2011. It is ORDERED AND ADJUDGED that the Motion is GRANTED. 1. The government shall reveal to the victims and permit inspection and copying of all information and material known to the government which may be "favorable" to the victims, see Brady' Maryland, 373 U.S. 83 (1963) (discussing evidence "favorable" to defendants); United States Agurs, 427 U.S. 97 (1976) (same), on issue of possible violations of their rights under CVRA and remedy for such violations, including any impeachment information under Giglio i United States, 405 U.S. 150 (1972). 2. The parties shall make every possible effort in good faith to stipulate to all facts or points of law the truth and existence of which is not contested and the early resolution of which will expedite the proceedings. 1 08-80736-CV-MARRA 000916 EFTA00230740

Case 9:08-cv-80736-KAM Document 50-2 Entered on FLSD Docket 03/21/2011 Page 2 of 2 3. The parties shall make to each other the disclosures requited under Fed. R. Civ. P. 26(aXI)(A). DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this day of March, 2011. KENNETH A. MARRA United States District Judge 2 08-80736-CV-MARRA 000917 EFTA00230741

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 1 of 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 and JANE DOE #2, Petitioners, vs. UNITED STATES, Respondent. UNITED STATES' RESPONSE TO JANE DOE #1 AND JANE DOE #2'S MOTION FOR ORDER DIRECTING THE U.S. ATTORNEY'S OFFICE NOT TO WITHHOLD RELEVANT EVIDENCE Respondent, United States of America, by and through its undersigned counsel, files its Response to Jane Doe #1 and Jane Doe #2's Motion for Order Directing The U.S. Attorney's Office Not to Withhold Relevant Evidence, and states: L THE CRIME VICTIMS RIGHTS ACT CREATES NO LEGAL DUTY UPON THE U.S. ATTORNEY'S OFFICE TO PROVIDE RELEVANT EVIDENCE Petitioners maintain the U.S. Attorney's Office is "withholding" relevant evidence, which suggests there is a legal obligation to disclose such information to them. Petitioners contend the government has an obligation under 18 U.S.C. § 3771(c)(1) "to make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)." Section 3771(cXl) is no authority to impose a duty upon the U.S. Attorney's Office to provide evidence to petitioners, or allow them a right of access to records maintained by the U.S. Attorney's Office. Petitioners do not point to any of the eight rights enumerated in section 08-80736-CV-MARRA 000918 EFTA00230742

T" Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 2 of 9 3771(a) that provides a right to access to information in the government's possession, either in the context of the criminal case in which the requesting individual is a crime victim under section 3771(e), or in a motion for relief filed under section 3771(d)(3). Petitioners' attempt to engraft a right of access to government information to section 3771(cXI) should be rejected. In Pennsylvania'. Ritchie, 480 U.S. 39 (1987), the Supreme Court recognized that the Confrontation Clause grants a criminal defendant a trial right to cross- examine a witness. It hastened to add, Itthe ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony." Id. at 52(footnote omitted). In the same vein, the obligation of the government to use its best efforts "to see that crime victims are notified of, and accorded, the rights described in subsection (a)," does not include a duty to provide information supporting whatever claim a victim may wish to assert in a motion for relief under section 3771(d)(3). In United States'. Rubin, 558 F.Supp.2d 411 (ED.N.Y. 2008), an alleged victim of a stock swindle claimed the right to confer in section 3771(aX5) included a right to obtain information to base his views to express to the court. This argument was rejected by the district court, which noted that "rainy information-gathering aspect of the right to confer is necessarily circumscribed, in the first instance, by its relevance to a victim's right to participate in the federal criminal proceedings at hand and to do so within the bounds demarked by the CVRA." Id. at 425(citation omitted). The court found the CVRA no more requires disclosure of the pre- sentence report to meet its remedial goal of giving crime victims a voice in sentencing than it does disclosure of all discovery in a criminal case to promote the goal of giving victims a voice at 2 08-80736-CV-MARRA 000919 EFTA00230743

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 3 of 9 plea proceedings. 111, cititgi United States,. Inzrassia, 2005 WL 2875220 at •17 (B.D.N.Y. Sep. 7, 2005). The district court concluded, "[t]he CVRA, therefore, does not authorize an unbridled gallop to any and all information in the government's files." 558 F.Supp.2d at 425. Similarly, in United States I. Coxton, 598 F.Supp.2d 737 (W.D.N.C. 2009), several crime victims invoked the. CVRA in at attempt to obtain portions of the pit-sentence investigation report (PSR). The victims argued that the CVRA granted them the implicit right to access to the request portions of the PSR in order to prepare for sentencing. Id. at 739. The district court rejected the victims' argument. The court first noted the confidential nature of a PSR, Id at 738- 39, and then found that a victim's right to be reasonably heard at sentencing did not grant a right of access to the PSR. The court relied upon In re Brock, 262 Fed.Appx. 510 (4" Cir. 2008), which held that a victim's right to be heard does not afford access to a PSR, since the victim had been provided ample information concerning the applicable Sentencing Guidelines and other issues related to the defendants' sentencing. The district court in Coxton found that the victims in that case were present during trial and continued to enjoy access to the United States Attorney's Office. Id. at 740. The district court also rejected the victim's argument that their right to restitution granted a right of access to the PSR. Id. The Coxton court relied upon United States I. Sacane 2007 WL 951666 (D.Conn. Mar. 28, 2007), where the victim of a fraud sought access to the convicted defendant's financial status by invoking the CVRA. The Sacane court relied upon the caselaw finding a victim had no right to the defendant's PSR, and found that, "if the CVRA does not provide crime victims with a tight to disclosure of the presentence report, that a fortiori it would not provide crime victims with a right to obtain such disclosures directly from a defendant" 3 08-80736-CV-MARRA 000920 EFTA00230744

Case 9 08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 4 of 9 2007 WL 951666 at '1. Other attempts to engraft discovery rights onto the CVRA have also been rejected. In United States'. Moussaoui, 483 F.3d 220 (41h Cir. 2007), several victims in the September 11, 2001 terrorist attacks sought access to files and records provided by the government to defendant Moussaoui, in satisfaction of the government's criminal discovery obligations. The victims were plaintiffs in civil actions filed in the Southern District of New York, against private airlines, airports, and security services. Id. at 224. The victims sought non-public criminal discovery materials for use in their civil actions. In its opinion, the Fourth Circuit noted the victims had relied heavily upon the CVRA and the Air Transportation Safety and Stabilization Act (ATSSSA) in the district court, to support their claim of a right to access the criminal discovery information. Id. at 234. On appeal, however, the civil plaintiffs abandoned the argument that those two statutes provided the district court the authority to enter an order compelling the government to provide to the civil plaintiffs certain categories of information. The appellate court observed that, "[t]his was wise strategy, as nothing in those two statutes supports the district court's exercise of power." It As to the CVRA, the Fourth Circuit found "[t]he rights codified by the CVRA, however, are limited to the criminal justice process; the Act is therefore silent and unconcerned with victims' rights to file civil claims against their assailants." It at 234-35, In re Kenna 453 F.3d 1136, 1137 (9* Cir. 2006). There is no criminal justice process in the instant case since no criminal charges have been filed. Even if the criminal justice process has been initiated by the filing of charges, courts have rejected claims by victims that one or more of the rights in section 3771(a) create a right of access to information in the government's possession; Coxton (no right 4 08-80736-CV-MARRA 000921 EFTA00230745

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 5 of 9 to PSR); Kenna (same); and Sacane (no right to financial information from defendant). The CVRA imposes no duty on the U.S. Attorney's Office to provide evidence to petitioners to assist them in presenting their claims under the CVRA. TT. PETITIONERS HAVE NO DUE PROCESS RIGHTS UNDER THE CVRA Petitioners also contend they have a right to due process under the CVRA, and liken their situation to the rights enjoyed by criminal defendants. DE 50 at 5-9. This argument suffers from a fundamental defect, the absence of any protected life, liberty, or property interest, which would trigger the due process clause. "The necessary first step in evaluating any procedural due process claim is determining whether a constitutionally protected interest has been implicated." Tefel I. Reno, 180 F.3d 1286, 1299 (11th Cir. 1999), citing Economic Dev. Corp... Stierheirn, 782 F.2d 952, 954-55 (11th Cir. 1986)("In accessing a claim based on an alleged denial of procedural due process a court must first decide whether the complaining party has been deprived of a constitutionally protected liberty or property interest. Absent such a deprivation, there can be no denial of due process."). Petitioners concede that "the victims in this case do not rely on a federal constitutional right to due process." DE 50 at 6(emphasis in original). However, they contend that section 3771(aX8), which provides that a crime victim should be treated with fairness and with respect for the victim's dignity and privacy, creates a statutory right. Petitioners argue that Congress intended to provide a substantive due process right to crime victims. DE 50 at 6. This argument is plainly incorrect. There is no life, liberty, or property interest implicated in the CVRA, and courts are hesitant to find that a substantive due process right has been created. See Collins City of Harker FIeights. Texas, 503 U.S. 115, 5 08-80736-CV-MARRA 000922 EFTA00230746

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 6 of 9 125 (1992X"As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaldng in this uncharted area are scarce and open ended. (citation omitted). The doctrine of judicial self-restraint requires us to exercise the utmost care whenever we are asked to break new ground in this field."). This judicial reluctance would be particularly well-founded in the instant case, where petitioners are maintaining that Congress's use of the amorphous terms "fairness" and "respect for the victim's dignity and privacy" have created a substantive due process right. Similarly unavailing is petitioners' reliance upon Brady'. Maryland, 373 U.S. 83 (1963), and other criminal law cases finding a due process obligation on the government's part to disclose exculpatory and impeachment information. Petitioners are charged with no crime, and they are in no jeopardy of losing their liberty. Consequently, the government has no due process obligation to provide information to petitioners. PETITIONERS HAVE NO RIGHT TO DISCOVERY UNDER THE FEDERAL RULES OF CIVIL PROCEDURE Petitioners argue they arc entitled to discovery under the Federal Rules of Civil Procedure, but they point to no particular rule, or case, which provides that such a discovery rights exists. Instead, petitioners seize upon the government's assertion that the right to confer under section 3771(aX5) only applied to the criminal case, not to a civil action filed to attempt to enforce rights under the CVRA. Petitioners filed their motion for relief under section 3771(d)(3). Such motions for relief are filed 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 which the crime occurred." If a motion under • 6 08-80736-CV-MARRA 000923 EFTA00230747

.5-%%*.ev.r...— ---1 •.nnevAn 9 Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 7 of 9 section 3371(d)(3) is filed in the district court in which the defendant is being prosecuted, the motion is being entertained as part of the criminal case, not a civil action. In the instant case, petitioners filed their motion under the second provision. Presumably, because there was no criminal case, the Clerk's Office assigned the motion a civil case number. Congress created a procedure by which a putative victim could seek relief for alleged violations of CVRA rights, If a section 3771(d)(3) motion were filed in an existing criminal case, the Federal Rules of Civil Procedure would not apply, since it is not a civil case. Under petitioners' theory, because of the happenstance that no criminal case was pending, and the Clerk's Office assigned the motion a civil case number, they are entitled to full discovery under the Federal Rules of Civil Procedure. Petitioner's theory is illogical because there is no basis for believing that Congress intended individuals seeking relief under section 3771(d)(3) to enjoy widely differing procedural rights, depending on whether there was a criminal case pending. If a putative victim filing a motion in an existing criminal case would be entitled to no discovery under the Federal Rules of Civil Procedure, then none should exist where there is no existing criminal case. IV. THE GOVERNMENT ATTORNEYS' DUTY OF CANDOR DOES NOT CREATE A RIGHT OF ACCESS TO INFORMATION Petitioners argue that, because the government's attorneys owe a duty of candor to the Court, they are entitled to have access to government records in order to ensure the government attorneys are honoring their ethical obligations. DE 50 at 11-13. The government's attorneys arc well-aware of their obligations of candor to the Court. If the Court believes any attorney in the instant case has breached that ethical duty, it has the 7 08-80736-CV-MARRA 000924 EFTA00230748

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 8 of authority to take remedial action to factually determine whether the duty has been breached. However, the mere existence of an attorney's duty of candor to a court does not a right of access to information in the opposing party, to ensure the ethical duty is being met. CONCLUSION Petitioners' motion for order directing the U.S. Attorney's Office not to withhold relevant evidence should be denied. Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: s/ Dexter A. Lcc DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4* Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter.lee(ausdoLgov Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 7, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney 8 08-80736-CV-MARRA 000925 EFTA00230749

1 P" Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/0712011 Page 9 of 9 SERVICE LIST lane Does 1 and 2 United States, Case No. 08-80736-C1V-MARRA/JOHNSON United States District Court, Southern District of Florida Bradley J. Edwards, Esq., Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Fax: (954) 524-2822 E-mail: bradaroatbtoiustice.com Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, Utah 84112 (801) 585-5202 Fax: (801) 585-6833 E-mail: casselpfilaw.utah.edu Attorneys for Jane Doe # 1 and Jane Doe # 2 9 08-80736-CV-MARRA 000926 EFTA00230750

Case 9:08•cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANDE DOE #2 I UNITED STATES JANE DOE #1 AND JANE DOE #2'S MOTION TO USE CORRESPONDENCE TO PROVE VIOLATIONS OF THE CRIME VICTIMS' RIGHT ACT AND TO HAVE THEIR UNREDACTED PLEADINGS UNSEALED COME NOW Jane Doe #1 and Jane Doe #2 (also referred to as "the victims"), by and through undersigned counsel, to move this Court to allow use of correspondence between the U.S. Attorney's Office and counsel for Jeffrey Epstein to prove violations of the Crime Victims' Rights Act. Because this Court has already ruled that the correspondence is not privileged — and because it is highly relevant to the victims' case — the motion should be granted. The victims' unredacted pleading quoting the correspondence should also be unsealed, particularly in light of the intense, international public interest in Epstein's controversial plea deal. BACKGROUND As the Court is aware, beginning 2008, Jane Doe #1 and Jane Doe #2 pursued civil litigation against Jeffrey Epstein for sexually abusing them. During the course of that litigation, in June 2001, they obtained correspondence between the U.S. Attorney's Office and Jeffrey Epstein's legal counsel. Jane Doe #1 and Jane Doe #2 ultimately settled their civil suits in July 2010. During the settlement discussions, they informed Epstein's legal counsel that they would 1 08-80736-CV-MARRA 000927 EFTA00230751

er7/0 ------- - Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 2 of 10 be using the correspondence in this CVRA action. Epstein requested advance notice of such filing. Jane Doe #1 and Jane Doe #2 saw no basis for any objection to their using the materials, but agreed to give advance notice to Epstein so that he could make whatever arguments he wished. Accordingly, as part of their settlement, the victims agreed with Epstein that they would file under seal the correspondence so that Epstein would have an opportunity to object if he so desired: Counsel for [Jane Doe #1 and Jane Doe #2] have received, as part of discovery in this lawsuit, certain correspondence between Epstein's agents and federal prosecutors. [Jane Doe #1 and Jane Doe #2] may desire to use this correspondence to prove a violation of [their] right to notice by the government and to be treated with fairness, dignity, and respect during criminal investigations and prosecutions under the Crime Victims' Rights Act (CVRA), 18 U.S.C. section 3771, and to seek remedies for any violation that [they] may prove. The parties agree that Epstein will receive at least seven days advance notice, in writing, of intent to so use the correspondence in any CVRA case . . . [Jane Doe #1 and Jane Doe #2] agree to . . . file the documents .. . under seal until a judge has ruled on any objection that Epstein may file." On August 26, 2010, Jane Doe #1 and Jane Doe #2 provided the specified advance notice to Epstein of their intent to use the correspondence. The notice specifically covered this CVRA action: [AJs you know, there is currently pending before Judge Man a case filed under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, in which two victims of sexual assault by [you] allege they were deprived of their rights under the Act. For example, the victims allege that there were deprived of notice of pending plea bargain arrangements and an opportunity to be heard as well as the right to meaningfully confer with prosecutors. The correspondence provided to us is compelling evidence in support of their claims, as it demonstrates that federal prosecutors were conducting plea discussions with Epstein months before they alerted the victims to any possible plea bargain. The correspondence also demonstrates a willful plan to- Itetkp the viotims—in_the_cladc. about the plea discussions. In light of these facts, we intend to make use of this correspondence in the [CVRA] . . .lawsuit[] 08-80736-CV-MARRA 000928 EFTA00230752

Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 3 of 10 Letter from Bradley J. Edwards to Robert D. Critton, Jr., Case No. 9:08-CV-80893, Doc. #214 (attachment 2). On September 2, 2010, Epstein filed a motion for a protective order, seeking to bar disclosure of the U.S. Attorney's correspondence in both a pending state court case and the CVRA case. Case No. 9:08-CV-80893, Doc. #214. On September 13, 2010, Jane Doe #1 and Jane Doe #2's responded, explaining that Epstein had already litigated — and lost — the claim that the information was somehow protected. They also explained that Epstein could not object to use of the information in the CVRA ease unless he intervened in the CVRA case. Doc. #217. One day later, on September 14, 2010, the Court (Magistrate Judge Johnson) denied the motion for a protective order. Doc. #218. The Court explained that "[t]he Court agrees with [Jane Doe] . . . that if [Epstein] believes he has a valid basis for preventing disclosure of the subject documents in the subject state court proceeding, he should file a motion to that effect in the appropriate state court." On September 28, 2010, Epstein filed an appeal of the Magistrate Judge's order. Epstein argued that because the Magistrate Judge had ruled so rapidly, he had been precluded from filing a reply brief. On October 7, 2010, Jane Does' legal counsel filed a response (Doc. #221), explaining that no basis existed for barring use of the documents and that, in any event, Epstein needed to intervene in the CVRA case if he was going to have standing to object to use of the documents there. 3 08-80736-CV-MARRA 000929 EFTA00230753

Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 4 of 10 On October 20, 2010, this Court (Marra, J.), entered an order (Doc. #222) remanding to the magistrate judge to give Epstein an opportunity to file a reply brief. On November 1, 2010, Epstein filed a reply to the response to his motion for protective order. Doc. #223. On January 5, 2011, this Court (Johnson, J.) entered an order (Doe. #226) resolving Epstein's objection. The Order began by stating: "To the extent Epstein's Counsel ask the Court to find the subject correspondence privileged and on that basis prohibiting Plaintiffs' Counsel from disclosing it in either of the two proceedings, said request is denied." Id. at 3. The Order, however, indicated that Jane Does' counsel should file the correspondence under seal with "the appropriate institution" so that the institution could "make the determination of admissibility as it relates to their respective cases." Id. at 3.1 DISCUSSION I. JANE DOE #1 AND JANE DOE #2 SHOULD BE PERMITTED TO USE TILE CORRESPONDENCE, AS IT IS HIGHLY RELEVANT TO THEIR CASE. Under the Magistrate Judge's Order, Jane Doe #1 and Jane Doe #2 are directed to submit the correspondence to "the appropriate institute" for a "determination of admissibility." The victims have done that, filing only a redacted version of their pleading in the public court file, At one point, the Magistrate Judge appeared to think that the "appropriate institution" for the CVRA was the Justice Department, as the Magistrate Judge thought that Jane Doe was proceeding by way of an "internal Justice Department Complaint procedure." Of course, Jane Doe is not proceeding here by way of the internal Justice Department procedure, but rather the statutorily authorized procedure for filing a motion in the district court. See 18 U.S.C. § 3771(d)(3). 4 08-80736-CV-MARRA 000930 EFTA00230754

Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 5 of 10 submitting an unredacted version to the Court. The victims have also submitted all of the correspondence to the Court under seal as well. The only remaining issue for the Court under the Magistrate Judge's Order is a "determination of admissibility as it relates" to the CVRA case. The correspondence is plainly admissible, as it is bigWy_relevara to _thityictints1 argument—that-the--Justiee—Departmenuns intentionally concealed the existence of tlle...nonzprqsecution agreement from them. The correspondence specifically shows that the U.S. Attorney's Office reached a firm non- prosecution agreement with Epstein in September 2007, but subsequently deliberately decided to conceal the existence of that agreement from the victims. The correspondence further shows that the U.S. Attorney's Office was aware of its statutory obligation to inform the victims of the non- prosecution agreement. Indeed, some of the correspondence involves specific discussion of the CVRA and victim notices. All relevant evidence is admissible. See Fed. R. Evict. 402. Relevant evidence is "broadly defined," United States I Glasser, 773 F.2d 1553, 1560 (11i° Cir. 1985), as evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probably or less probable than it would be without the evidence." Fed. R. Evid. 401. Much of the correspondence bears directly on points that the U.S. Attorney's Office has already discussed in its pleadings. The Government's Response to the Victim's Petition, for example, contains an extensive discussion of the background of the investigation, the plea negotiations, and the U.S. Attorney's Office's understanding of its obligations under the CVRA. See Government's Resp. to Victim's Emergency Petition for Enforcement of Crime Victims Rights Act at 3-6 (dos. #13) (citing Declaration of Asst. U.S. 5 08-80736-CV-MARRA 000931 EFTA00230755

Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 6 of 10 Attorney Marie Villafafia). These same subjects were also discussed at length at the Court's July 11, 2008, hearing on the matter. See, e.g., Tr. July 11, 2008, at 3-4, 18-19, 22-29. The correspondence provides far more detailed information on this subject than was previously available to the victims. More important, the correspondence also shows a concerted effort by the U.S. Attorney's Office and Epstein to conceal the non-prosecution agreement from the victims. The victims should therefore be allowed to use the correspondence, as it sheds important light on the events surrounding the non-prosecution agreement, which are central to the victims' arguments that the U.S. Attorney's Office violated their rights. II. THE VICTIMS' PLEADINGS SHOULD BE UNSEALED. The victims' pleadings should also be unsealed. The victims have, of course, filed only a redacted version of their pleading in the court public file, thereby ensuring full compliance with the Court's order that they give Epstein a chance to object. But there is no underlying reason for sealing of these documents. The Court has already ruled that the correspondence is not privileged. Accordingly, no good reason exists for keeping the pleadings confidential, and accordingly they should be made part of the Court's public file. In addition, no sealing order could be justified in this case. The Eleventh Circuit has instructed that the district courts must make substantial findings before sealing records in cases before it. For instance, in United States. Ochaa-Masque, 428 F.3d 1015 (11th Cir. 2005), it reversed an order from this Court that had sealed pleadings in a criminal case, emphasizing the importance of the public's historic First Amendment right of access to the courts. To justify 6 08-80736-CV-MARRA 000932 EFTA00230756

.. . Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 7 of 10 sealing, "a court must articulate the overriding interest along with findings specific enough that a reviewing court can determine whether the closure order was properly entered." Id at 1030. Here there is no overriding interest in keeping the pleadings secret. To the contrary, there is an overriding interest in having these matters exposed to public light. There is considerable public interest in the question of how a serial pedophile could arrange such a lenient plea agreement with the U.S. Attorney's Office. There has long been suspicion that Jeffrey_KEstein was receiving favorable treatment in the criminal investigation because of his wealth and power. See, e.g., Abby Goodnough, Questions of Preferential Treatment Are 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"). 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 last month, suggesting in its plot that federal government had intervened improperly to prevent effective prosecution. See Law & Order Commemorates Jeffrey Epstein's Taste for Teen Hookers, hup://gawkencom/#!5751094/law—order-commemorates-jeffity- epsteins-taste-for-teen-hookers. Also, there is strong current media interest in the case. "British tabloids have gone berserk the past two weeks with 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. There are also current reports that the FBI is reopening its investigation into the matter. See Sharon Churcher, FBI Will Reopen Case Against Prince's Friend, SUNDAY MAIL (UK), Mar. 6, 2011. 7 op 08-80736-CV-MARRA 000933 EFTA00230757

. . .. . .... r.)7 Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 8 of 10 Of course, the Court is not being asked in this pleading to decide the wisdom of the non- prosecution agreement entered into by the U.S. Attorney's Office. The public can make up its own mind on that subject — but only if it is allowed to review the facts surrounding the negotiation of the agreement and the treatment of crime victims during the negotiation process. The Court should accordingly unseal the victims' pleading. M. EPSTEIN HAS NO "STANDING" TO RAISE ANY OBJECTIONS WITHOUT INTERVENING IN THE CVERA CASE. As a courtesy to Epstein, we have provided copies of all these pleadings to defendant Epstein. It should be noted, however, that while Epstein is well aware of this CVRA action, he has chosen not to intervene. Cf Fed. R. Civ. P. 24 (providing procedures for intervention). Without intervening in the case, he cannot raise any objections to use of the correspondence in this case — or to any relief that the Court might grant to the victims. The victims have no objection to Epstein intervening in this case — at this time. If, however, Epstein delays intervention until after a reasonable period of time, the victims will argue that his motion to intervene is untimely. The victims will argue that any attempted intervention by Epstein after the date on which the Government must respond to the victims' motion for a finding of violation of the CVRA is untimely, as that is when the victims must begin drafting reply pleadings. See United States' Jefferson County, 720 F.2d 1511, 1516 (11th Cir. 1983) (listing factors to be considered in determining whether motion to intervene is timely). CERTIFICATE OF CONFERENCE 8 08-80736-CV-MARRA 000934 EFTA00230758

Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 9 of 10 The Government has no objection to the motion to unseal. On August 26, 2010, Epstein was given notice of the victims' intent to use these materials in this case. He has yet to intervene in this case, let alone interpose any objection in this case. CONCLUSION For all the foregoing reasons, the Court should allow Jane Doe #1 and Jane Doe #2 to use the U.S. Attorney's correspondence in this CVRA action. The Court should therefore unseal the victims redacted pleading, entering the full pleading — and the attached correspondence — as publicly accessible records. DATED: March 21, 2011 Respectfully Submitted, s/ Bradley J. Edwards 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] 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: [email protected] Attorneys for Jane Doc #1 and Jane Doe #2 9 08-80736-CV-MARRA 000935 EFTA00230759

Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 10 of 10 CERTIFICATE OF SERVICE The foregoing document was served on March 21, 2011, on the following using the Court's CM/ECF system: A. Marie Villafafla 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.maric.c.villafanaaiNsdoi.gol Attorney for the Government Joseph L. 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) 10 08-80736-CV-MARRA 000936 EFTA00230760

Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOES #1 AND #2, Petitioners, I. UNITED STATES OF AMERICA, Respondent. UNITED STATES' RESPONSE TO PETITIONERS' MOTION TO USE CORRESPONDENCE TO PROVE VIOLATIONS OF THE CRIME VICTIMS' RIGHTS ACT AND TO HAVE THEIR UNREDACTED PLEADINGS UNSEALED !DEMI The United States of America, by and through the undersigned, hereby files this Response in partial opposition to Petitioners' Motion to Use Correspondence to Prove Violations of the Crime Victims' Rights Act and to Have Their Unredacted Pleadings Unsealed (DE51). As explained in the United States' Response to Petitioners' Motion for Finding of Violations of the Crime Victims Rights Act (DE48), and Petitioners' Motion to Have Their Facts Accepted (DE49), it is the position of the United States that this case presents a straightforward legal issue and no additional facts or evidence are necessary for the resolution of the matter. The United States also was not a party to the action wherein Petitioners were ordered to obtain court approval prior to using the correspondence as evidence.' Accordingly, the United States takes no position as to that portion of Petitioners' 'The Government does note, however, that Petitioners have filed the Non-Prosecution Agreement ("NPA") in the public portion of the Court file. (DE48, Ex. E.) That document is the subject of a Protective Order in the instant suit. (See DE26.) Petitioners have previously moved to 08-80736-CV-MARRA 000937 EFTA00230761

twored en— twm4prn, --"" . . . • Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 2 of 10 Motion, although it notes that merely attaching the correspondence to a motion without authenticating it does not make it admissible evidence. With regard to Petitioners' Motion to Unseal, when Petitioners' originally conferred with the government, the undersigned stated that there was no objection to the motion to unseal. However, a copy of what Petitioners intended to file was not provided. Also, upon undertaking some research in preparation for a response to DE49, it was determined that the Government could not, in accordance with our legal obligations, agree to unsealing the documents referenced herein. Accordingly, for the reasons set forth herein, the United States opposes, in part, Petitioners' Motion to Unseal. Instead, the United States has filed herewith, under seal, a redacted version of DE48 and the relevant portions of Exhibit A, and asks the Court to unseal only redacted versions, if the Court decides to grant Petitioners' Motion to Unseal. CERTAIN PORTIONS OF PETITIONERS' PLEADINGS RUN AFOUL OF FED. R. CRIM. P. 6(e) AND/OR CONSTITUTIONAL MANDATES. Several of the "facts" that Petitioners include in their Statement of Undisputed Facts allege that Jeffrey Epstein ("Epstein") and others have committed crimes for which they were never charged or convicted. Others refer to matters that were occurring before the grand jury. The documents contained in Exhibit A to their pleading contain similar materials. The Federal Rules of Criminal Procedure and constitutional mandates dictate that these should be kept sealed. A. Federal Rule of Criminal Procedure 6(e) Rule 6(e) states that "an attorney for the government" "must not disclose a matter occurring unseal the NPA in this action, (see DE28,) which the Court has denied. (DE36.) Although the Government acknowledges that the NPA is a matter of public record in other courts, it is not a public record here. As discussed below, its disclosure, which includes names of uncharged persons, implicates Due Process. 2 08-80736-CV-MARRA 000938 EFTA00230762

1 tvo", 77.—•-•— . • . i Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 3 of 10 before the grand jury." Fed. IL Crim. P. 6(e)(2)(B). Furthermore, court hearings and court records and orders must be sealed "to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury." Fed. R. Crim. P. 6(eX5) & (6). Courts have construed "a matter occurring before the grand jury" to include "events which have already occurred before the grand jury, such as a witness's testimony, [and] matters which will occur, such as statements which reveal the identity of persons who will be called to testify or which report when the grand jury will return an indictment." In re Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir. 1980). While Petitioners were merely asking the Government to agree with their assertions of " fact" based upon materials Petitioners had received from counsel for Epstein, rather than asking the Government to make affirmative disclosures of grand jury material, "Rule 6(e) does not create a type 'It is worth noting that, within the same case, a court can take differing positions on this. Compare: With: ['Me disclosure of information obtained from a source independent of the grand jury proceedings, such as a prior government investigation, does not violate Rule 6(e). A discussion of actions taken by government attorneys or officials, e.g., a recommendation by the Justice Department attorneys to department officials that an indictment be sought against an individual does not reveal any information about matters occurring before the grand jury. Nor does a statement of opinion as to an individual's potential criminal liability violate the dictates of Rule 6(e). Disclosures which expressly identify when an indictment would be presented to the grand jury, the nature of the crimes which would be charged, and the number of persons who would be charged run afoul of the secrecy requirements codified in Rule 6(e). In re Grand fray Investigation, 610 F.2d at 217, 218. In light of these conflicting directives, the government must err, if at all, on the side of treating all information related to grand jury proceedings as "matters occurring before the grand jury." 3 08-80736-CV-MARRA 000939 EFTA00230763

•-•••," • • Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 4 of 10 of secrecy which is waived once public disclosure occurs." In re Motions ofDow Jones & Co., Inc., 142 F.3d 496, 505 (D.C. Cir. 1998) (quoting In re North, 16 F.3d 1234, 1245 (D.C. Cir. 1994)). "[E]ven if material concerning the grand jury investigation had been disclosed to the public, the Government attorney .. . had a duty to maintain grand jury secrecy. This attorney could neither confirm nor deny the information presented by the 'external party.'" Senate of the Commonwealth of Puerto Rico'. United States Dept of Justice, 1992 WL 119127 at '3 (D.D.C. May 13, 1992) (citing Bony. United States, 740 F. Supp. 888, 891 (D.D.C. 1990) ("Rule 6(e) does not create a type of secrecy which is waived once public disclosure occurs. The Government is obligated to stand silent regardless of what is reported, accurate or not, by the press."). The reasons for Rule 6(e) are multiple: In addition to preventing adverse pretrial publicity about a person who may be indicted and subsequently tried, secrecy protects the reputation of a person under investigation who is not indicted. The secrecy requirement also encourages reluctant witnesses to testify without fear of reprisals from those against whom testimony is given, prevents tampering with grand jury witnesses in an effort to alter their trial testimony, and permits the grand jury to deliberate free from the influence of publicity. Finally, secrecy prevents disclosures to persons who may be interested in the investigation if the facts are known or might attempt to escape if they have reason to believe certain indictments will issue. United States'. Eisenberg, 711 F.2d 959, 961 (11th Cir. 1983) (citing United States'. Procter & Gamble Co., 356 U.S. 677, 681 n.6 (1958)). Several of the "facts" contained in Petitioners' submission contain allegations related to matters occurring before the grand jury. Pursuant to Fed. R. Crim. P. 6(e), the Government cannot confirm or deny the accuracy of those allegations. Likewise, portions of Exhibit A to Docket Entry 48 refer to matters occurring before the Grand Jury. Notwithstanding Petitioners' citations to the First Amendment and the interest of the press and the public in this case, the First Amendment right 4 08-80736-CV-MARRA 000940 EFTA00230764

f, ^^neernn" .."-- -••• Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 5 of 10 of access is not absolute and sealing is appropriate in connection with grand jury proceedings. As explained by Judge Jordan in United States. Swinger, 626 F. Supp. 24i 1231 (S.D. Fl. 2009): "The proper functioning of our grandiury system depends upon the secrecy of grand jury proceedings," Douglas Oil Co. I. Petrol Stops Northwest, 441 U.S. 211, 218 (1979), and this expectation of privacy is generally codified in Rule 6(e) of the Federal Rules of Criminal Procedure There is a second reason why sealing is currently appropriate. As noted above, the Public Integrity Section has determined that six former or present public officials had no knowledge of, or involvement in, the alleged wrongdoing, and its probe continues against others who have yet to be indicted or cleared. The sealed documents and transcripts refer to many of those individuals by name. Disclosure of those names, and the matters being investigated, could have devastating consequences for those persons who have been cleared of any misconduct, as well as for those still under investigation. As William Shakespeare put it centuries ago, "the purest treasure mortal times afford is spotless reputation; that away, men are but guilded loam, or painted clay." W. Shakespeare, RICHARD II, ACT 1, SCENE 1, lines 177-78 (1597). And if it is true that "at every word a reputation dies," A. Pope, THE RAPE OF THE Lock, CANTO III, line 16 (1712), then public access to the sealed documents and transcripts here could easily kill many reputations. This overriding interest is, I believe, of a higher value under [Ness-Enterprise Co.'. Superior Court, 464 U.S. 501 (1984)] so as to warrant sealing, and provides good cause under the common-law access balancing test to preclude disclosure. Swinger, 626 F. Supp. 2d at 1235-36 (brackets in original omitted). See also In re Petition of American Historical Ass 'n, 62 F. Supp. 2d 1100, 1103 (S.D.N.Y. 1999) ("A cornerstone of the grand jury secrecy tide is the protection of the reputations and well-being of individuals who are subjects of grand jury proceedings, but are never indicted . . [T]he rule of secrecy seeks to protect . . unindicted individuals from the anxiety, embarrassment, and public castigation that may result from disclosure.") (cited in Steinger). 5 08-80736-CV-MARRA 000941 EFTA00230765

e•;;S",:%%::: - - • /len" Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 6 of 10 B. Due Process As noted above, one of the reasons behind 6(e) is to protect the reputations of persons who are under investigation but not indicted. This is a corollary to what the Court of Appeals found to be a due process protection afforded by the Fifth Amendment of the United States Constitution — namely, "that the liberty and property concepts of the Fifth Amendment protect an individual from being publicly and officially accused of having committed a serious crime, particularly where the accusations gain wide notoriety." See In re Smith, 656 F.2d 1101, 1106 (5th Cir. 1981) (citation omitted)! In Smith, the petitioner filed a motion seeking to have his name stricken from the factual proffers of two criminal defendants. Smith had not been criminally charged or convicted. The Court of Appeals agreed with Smith, castigating the Government: no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights... . [W]e completely fail to perceive how the interests of criminal justice were advanced at the time of the plea hearings by such an attack on the Petitioner's character. The presumption of innocence, to which every criminal defendant is entitled, was forgotten by the Assistant United States Attorney in drafting and reading aloud in open court the factual resumes which implicated the Petitioner in criminal conduct without affording him a forum for vindication. Id. at 1106, 1107. The Court of Appeals ordered the District Court Clerk's Office to "completely and permanently obliterate and strike from the records of the pleas of guilty . . . any and all identifying reference to or name of Mr. Smith, the Petitioner, so that such references may not be used as a public record to impugn the reputation of Petitioner." Id. at 1107. The Court further ordered that all of the pleadings in the case be scaled. Id. 'This opinion of the Fifth Circuit was made binding precedent in the Eleventh Circuit pursuant to Bonner'. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en bane). 6 08-80736-CV-MARRA 000942 EFTA00230766

---- Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 7 of 10 Courts have interpreted Smith to apply not only to references to unindicted co-conspirators in indictments and factual proffers, but also to motion papers. See, e.g., United States'. Anderson, 55 F. Supp. 24 1163, 1168 (D. Kan. 1999) ("After carefully reviewing the government's moving papers on the conflict of interest issue, the court can find no reason why the government might have 'forgotten' the presumption of innocence in such a public pleading . .") (citing Smith, 656 F.2d at 1107); United States'. Holy Land Foundation, 624 F.3d 685 (5th Cir. 2010) (Fifth Amendment rights of organization were violated when its name was listed among 246 unindicted coconspirators in pre-trial brief). Petitioners' "Statement of Undisputed Material Facts," and Exhibit A to DE48 contain allegations related to uncharged crimes against not only Epstein but several other individuals.' In keeping with the First Amendment's limited right of access, the United States does not oppose the motion to unseal in full, rather, pursuant to Smith and its progeny, the relevant allegations should be redacted. See, e.g., Smith, 656 F.2d at 1107 (ordering Clerk's Office to "completely and permanently obliterate and strike from the records ... any and all identifying reference to or name of Mr. Smith" and sealing all other related records); United States'. Anderson, 55 F. Supp. 2c1 1163, 1170 (D. Kan. 1999) (ordering Clerk's Office to "completely and permanently strike" all references to petitioners); Steinger, 626 F. Supp. 2d at 1237 (concluding that documents must be kept fully sealed because "redactions would be so heavy as to make the released versions incomprehensible and unintelligible"). Filed herewith, under seal in accordance with Rule 6(e), is a proposed redacted copy of DE48 and the relevant pages of Exhibit A. With respect to DE48 itself, the Government has only redacted °The NPA also contains such references. 7 08-80736-CV-MARRA 000943 EFTA00230767

Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 8 of 10 language that in some way suggests that the Government (including the FBI) is the source of the allegation. However, the Government reiterates, as it has stated in its opposition to "Petitioners' Motion to Have Their Statement of Undisputed Material Facts Accepted" that it denies all of the allegations contained in Petitioners' Statement that aver violations of law by Epstein or others that have not resulted in a conviction, including but not limited to paragraphs 1, 2, 4, 5, 10, 11, 17, 37, 52, and 53. With respect to Exhibit A, out of 359 pages, the United States only seeks to redact 40 full pages, and seeks to redact individual words or sentences on an additional 20 pages. The United States further respectfully requests that the Court allow it to redact the personal telephone number and email address of its personnel, that appears on eighteen pages in Exhibit A to DE48. The information serves no evidentiary purpose. The United States has conferred with counsel for Petitioners on these matters. Petitioners have no objection to the redaction of the personal telephone number and email address of government personnel and to the redaction of individual statutory references in Exhibit A. Petitioners object to redactions of DE48 and to further redactions ofErthibit A. For ease of reference by the Court, the redactions that arc agreed to are marked in blue; those that are in dispute are marked in red. Redactions that appear in plain black are pre-existing (i.e., they are redactions done either by Petitioners or by Epstein's counsel). CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court deny, in part, Petitioners' Motion to Unseal its Motion for Finding of Violations of Crime Victim's Rights Act and Request for Hearing on Appropriate Remedies [DE481 and Exhibit A thereto and, instead, that the Court unseal only a redacted version of those pleadings, that is, the redacted documents filed 8 08-80736-CV-MARRA 000944 EFTA00230768

Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 9 of 10 herewith. Respectfully submitted, WIFREDO A. FERRER UNITED STATES ATTORNEY By: s/ Dexter A. Lee DEXTER A LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4° Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter.lee tisdoiszov Attorney for Respondent CERTIFICATE OF SERVICE I HEREBY CERTIFY that on April 7, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney 9 08-80736-CV-MARRA 000945 EFTA00230769

Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 10 of 10 SERVICE LIST Jane Does I and 2 United States, Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Bradley J. Edwards, Esq., Fanner, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Fax: (954) 524-2822 E-mail: brad(apathtoimtice.com Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, Utah 84112 (801) 585-5202 Fax: (801) 585-6833 E-mail: casseMaiilaw.utah.edu Attorneys for Jane Doe # 1 and Jane Doe # 2 10 08-80736-CV-MARRA 000946 EFTA00230770