Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 3 of 10 Li Li 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 (doe. #17). The U.S. Attorney's Office took the following position: "After consideration, the Government believes that an evidentiary hearing is not necessary" (doc. #17 at I). 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 I, 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-prosccution 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 EFTA00177107

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 c-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 Doc #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 first 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. Attorney'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 EFTA00177108

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 (doe. #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 narrow 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. #4I at 3). 2 2 In seeming contradiction to this position, on March 17, 2011, the U.S. Attorney's Office 5 EFTA00177109

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, Wifredo 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 arc 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)(I). 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 EFTA00177110

Case 9:08-cv-80736-KAM Document 49 Entered on FLSD Docket 03/21/2011 Page 7 of 10 Letter from Wifredo 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 Crime 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. 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. Evid. 408(b) (while settlement discussions are generally inadmissible, they are permissible for purposes other than proving the validity of a claim). 7 EFTA00177111

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 II. 2008 hearing, but the Crime Victims' Rights Act specific afford to victims "[t]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 EFTA00177112

Case 9:08-cv-80736-KAM Document 49 Entered on FLSD 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, l Bradley J. Edwards adley 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 Li 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 ill and Jane Doe #2 9 L, EFTA00177113

Case 9:08-cv-80736-KAM Document 49 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 Villafafia Assistant U.S. Attorney 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: ann.marie.c.lillafanaralusdoi.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 LI EFTA00177114

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, v. 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 IDE49 The United States, by and through the undersigned, hereby opposes Petitioners' Motion to have their "Statement of Undisputed Material Facts" accepted as true [I3E49). 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. EFTA00177115

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 arc 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 Doc # I and Jane Doc #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 I 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 ruling." (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 Doc # I and her counsel elected to attend a meeting with the U.S. Attorney. 2 EFTA00177116

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 3 of 15 Li contain only facts, not argument, not inferences, not incorrect innuenclos.2 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" arc in fact disputed and, in many cases, wrong. 'The 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 Special Responsibilities of a Prosecutor contains similar guidance. For example, there has been no civil or criminal finding 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. (DE48 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 DE48 at 3-4.) 3 EFTA00177117

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(O), which governs discovery in criminal cases. Local Rule 88.10(O) 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 I, 2008, at the very start of the litigation, (see DE19,)— and as admitted by Petitioners during the hearing on August 14, 2008, (see DE27 at 3) — no additional facts arc 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 CV RA applies is the central question in dispute in this matter 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 ease filed by victims against the Government pursuant to the CV RA. 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 EFTA00177118

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 arc 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. II. 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(eX2)(B).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 'Petitioners have no similar obligation. See Fed. R. Crim. P. 6(e)(2)(A). 5 EFTA00177119

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 6 of 15 indictment.' In re Grand Juty 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(c) 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)). "[Elven 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 Barry United States, 740 F. Supp. 888, 891 (D.D.C. 1990) ("Rule 6(c) does not create a type of secrecy 'It is worth noting that, within the same cast, 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 EFTA00177120

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 arc known or might attempt to escape if they have reason to believe certain indictments will issue. United States v. Eisenberg, 711 F.2d 959, 961 (11th Cir. 1983) (citing United States v. 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 arc 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 EFTA00177121

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD 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]c 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 Stalest 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 I 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 EFTA00177122

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 9 of 15 in pre-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 I, 2, 4, 5, 10, 11, 17, 37, 52, and 53.8 Ill. 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(d)(6). Rather, the CVRA creates rights for victims in federal criminal cases where criminal charges have already been filed. 18 U.S.C. § 3771(b)(1) ("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. 'It 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 EFTA00177123

Case 9:08-cv-80736-KAM Document 58 Entered on FLSD Docket 04/07/2011 Page 10 of 15 Second, victims arc not "panics" 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 parties, and the Federal Rules of Criminal Procedure do not allow them to intervene as panics 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 arc not panics to a criminal sentencing proceeding.). Third, many of Petitioners' asserted "facts" arc not facts at all, but instead arc inferences, legal conclusions, or innuendos. And, most importantly, many are 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 [DEI 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 are known to them to be in dispute. Prior to Epstein's state court plea, Jane Doc #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 many him. Jane Doe #2 further expressed a belief to the government that Epstein should not be prosecuted. Jane Doc #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 EFTA00177124

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 Junc 30, 2008. (See DE 48 at ¶¶ 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 ¶ 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 Villafana by Epstcin's counsel during the "higher level review" was that she "wrongfully" tried to include Jane Doc #2 among the list of Epstein's victims. Ironically, these same attempts to protect Jane Doe #2's rights are now being used by Jane Doc #2 to allege violations of the CVRA. Petitioners also allege that the letters sent to Jane Doc #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 Doc # I 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 DEI4), although there could have been an honest misunderstanding. The Government denies, 11 EFTA00177125

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 Doc #1 as pan of his resolution of a criminal case involving another victim while still agreeing that he could be criminally charged for acts involving Janc Doc # I . 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. This 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 wcrc 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 Villafaila 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 EFTA00177126

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 thc 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 "[tic) 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 5150,000 against Epstein[.J" 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, ¶ 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 EFTA00177127

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(c) and the Fifth Amendment and others arc 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. Lcc 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.lec(adusdoi.gov 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 EFTA00177128

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 I 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: bradkidnathtoiustice.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: casselp(alaw.utah.edu Attorneys for Jane Doc # I and Jane Doe # 2 15 EFTA00177129

L.) EFTA00177130

Case 9 08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 1 of 15 Li UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 v. UNITED STATES Li Li 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 EFTA00177131

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(c)(1) (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 fairness," 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 EFTA00177132

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 discovery request." Fed. R. Civ. P. 26(aX1)(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 1. 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(c)(1) (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 Lid EFTA00177133

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 (8th ed. 2004). See generally E. Allen Farnsworth, On Trying to Keep One 's Promises: The Duty of Best Efforts in Contract Law, 46 U. Pin. L. REV. I, 8 (1984). As a result, "[b]est 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 (8th ed. 2004). A reasonable prosecutor who is obligated to work to "accord" crime victims their rights, 18 U.S.C. § 377I(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). I fere, 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, Inc.' 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 EFTA00177134

Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 5 of 15 Led Ld L., 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 Wifredo 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 are 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 EFTA00177135

Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 6 of 15 information contrary to its position in court. For criminal defendants, this principle traces back to the landmark decision of Brady' 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 information 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(aX8)) are meant to be rights themselves and are 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 EFTA00177136

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 Doc #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: "[Tjhe 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 EFTA00177137

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 defendant(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 Stales, Agurs, 427 U.S. 97 (1976)." See, e.g., Standing Discovery Order, United States' Enriquez, 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 EFTA00177138

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(bX1), (a)(8). The Court should ensure fair treatment for the victims by directing the Government to produce relevant evidence. III. 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 NI 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(a)(5), 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. I ("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(a)(I)(A) that parties arc 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 arc I Rule I 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 EFTA00177139

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(a)(1)(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(d)(3) (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 EFTA00177140

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 parte 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 Epstein'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 (doc. #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 ill) were notified about the existence of this provision. II EFTA00177141

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 HI, 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. 835. 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. 835 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 EFTA00177142

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 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 13 EFTA00177143

Case 9:08-cv-80736-KAM Document 50 Entered on FLSD Docket 03/21/2011 Page 14 of 15 Paul G. Cassell Pro Hoc Vice S.J. Quinncy 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: cassellpialaw.utah.edu Attorneys for Jane Doe #1 and Jane Doe #2 14 EFTA00177144

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 CM/ECF system: A. Marie Villafana Assistant U.S. Attorney 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: [email protected] Attorney for the Government Joseph L. Ackerman, Jr. Joseph Ackerman, Jr. Fowler White Burnett PA 777 S. Flagler Drive, West Tower, Suite 901 West Palm Beach, FL 33401 Criminal Defense Counsel for Jeffrey Epstein (courtesy copy of pleading via U.S. mail) 15 Li EFTA00177145

u L.) LI EFTA00177146

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 Doc #1 and Jane Doe #2's Motion for Order Directing The U.S. Attorney's Office Not to Withhold Relevant Evidence, and states: I. 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)(I) "to make their best efforts to see that crime victims are notified of, and accorded, the rights described in subsection (a)." Section 3771(c)(1) 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 EFTA00177147

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 2 of 9 377I(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(c)(1) 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, "[tjhe 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 arc 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 377I(d)(3). In United States'. Rubin, 558 F.Supp.2d 411 (E.D.N.Y. 2008), an alleged victim of a stock swindle claimed the right to confer in section 377I(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 "[airy 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 EFTA00177148

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 3 of 9 plea proceedings. Id., citing United States,. Ingrassia, 2005 WL 2875220 at •17 (E.D.N.Y. Sep. 7, 2005). The district court concluded, "[t]he CVRA, therefore, dots 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'. 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 pre-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 (4i° 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'. 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 right 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 EFTA00177149

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 (4h 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." Id. As to the CVRA, the Fourth Circuit found "[t]he rights codified by the CVRA, however, arc limited to the criminal justice process; the Act is therefore silent and unconcerned with victims' rights to file civil claims against their assailants." Id. at 234-35, citing In rc Kenna, 453 F.3d 1136, 1137 (9i° 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 EFTA00177150

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. II. 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." 'Feld! Reno, 180 17.3d 1286, 1299 (11th Cir. 1999), citing Economic Dev. Corp.'. Stierheim, 782 F.2d 952, 954-55 (111° Cir. 1986)("In assessing 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 arc hesitant to find that a substantive due process right has been created. See Collins I. City of Harker Heights. Texas, 503 U.S. 115, 5 EFTA00177151

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 6 of 9 125 (1992)("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this uncharted area arc 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 I. 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 arc in no jeopardy of losing their liberty. Consequently, the government has no due process obligation to provide information to petitioners. III. 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(a)(5) 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 EFTA00177152

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 arc 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 are 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 EFTA00177153

Case 9:08-cv-80736-KAM Document 59 Entered on FLU) Docket 04/07/2011 Page 8 of 9 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. Lee DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4i° Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: de,: ter. lec(k usdoi.gov 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 EFTA00177154

Case 9:08-cv-80736-KAM Document 59 Entered on FLSD Docket 04/07/2011 Page 9 of 9 SERVICE LIST Jane 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, Wcissing, Edwards, Fistos & Lehrman, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954) 524-2820 Fax: (954) 524-2822 E-mail: bradkipathtoiustice.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: casselp(eilaw.wah.edu Attorneys for Jane Doc # 1 and Jane Doc # 2 9 EFTA00177155

L.) L.) EFTA00177156

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 EFTA00177157

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 NI 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 HI 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: [A]s you know, there is currently pending before Judge Marra 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 keep the victims in the dark about the plea discussions. In light of these facts, we intend to make use of this correspondence in the [CVRA] . . .lawsuit[] 2 EFTA00177158

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 case 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 tiling 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 c., EFTA00177159

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, .1.), entered an order (Doc. #222) remanding to the magistrate judge to give Epstein an opportunity to file a reply brief. On November I, 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 (Doc. #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 THE 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. 1 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. § 377I(d)(3). 4 EFTA00177160

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 highly relevant to the victims' argument that the Justice Department has intentionally concealed the existence of the non-prosecution 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. Evid. 402. Relevant evidence is "broadly defined," United States' Glasser, 773 F.2d 1553, 1560 (11th 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 (doc. #13) (citing Declaration of Asst. U.S. 5 EFTA00177161

Case 9:08-cv-80736-KAM Document 51 Entered on FLSD Docket 03/21/2011 Page 6 of 10 Attorney Marie Villafana). These same subjects were also discussed at length at the Court's July I I, 2008, hearing on the matter. See, e.g., Tr. July I I, 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' Ochoa-Vasque, 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 EFTA00177162

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 Epstein 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 arc 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. http://gawker.comM5751094/law--order-commemorates-jeffrey- 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 EFTA00177163

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. III. 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. CI 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 (nth Cir. 1983) (listing factors to be considered in determining whether motion to intervene is timely). CERTIFICATE OF CONFERENCE 8 EFTA00177164

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, 5/ 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: cassellnQlaw.utah.edu Attorneys for Jane Doe #1 and Jane Doe #2 9 EFTA00177165

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 Villafatia 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.I illafanaPtusdoi.zol 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 Lid EFTA00177166

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, 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 IDE511 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' Li '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 EFTA00177167

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 Pctitioncrs' 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(c) 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 EFTA00177168

Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 3 of 10 before the grand jury." Fed. R. Crim. P. 6(c)(2XB). 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 July." Fed. R. Crim. P. 6(e)(5) & (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(c) does not create a type 'It is worth noting that, within the same case, a court can take differing positions on this. Compare: [T]he 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 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 EFTA00177169

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 of Dow 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 Barry v. 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 v. Eisenberg, 711 F.2d 959, 961 (1Ith Cir. 1983) (citing United States v. 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(c), 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 EFTA00177170

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' Steinger, 626 F. Supp. 2d 1231 (S.D. Fl. 2009): "The proper functioning of our grand iury system depends upon the secrecy of grand jury proceedings," Douglas Oil Co. 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 [Press-Enterprise Co.l Superior Court, 464 U.S. 501 (1984)] so as to warrant scaling, and provides good cause under the common-law access balancing test to preclude disclosure. Steinger, 626 F. Supp. 2d at 1235-36 (brackets in original omitted). See also In re Petition of American Historical Assn, 62 F. Supp. 2d 1100, 1103 (S.D.N.Y. 1999) ("A cornerstone of the grand jury secrecy rule is the protection of the reputations and well-being of individuals who arc 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 EFTA00177171

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(c) is to protect the reputations of persons who arc 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]c 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 picas 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. 'This opinio 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 EFTA00177172

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. 2d 1163, 1168 (D. Kan. 1999) ("After carefully reviewing the government's moving papers on the conflict of interest jssuc, 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. 2d 1163, 1170 (D. Kan. 1999) (ordering Clerk's Office to "completely and permanently strike" all references to petitioners); Steiner, 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 EFTA00177173

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 I, 2, 4, 5, 10, I I, 17, 37, 52, and 53. With respect to Exhibit A, out of 359 pages, the United States only socks 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 of Exhibit A. For ease of reference by the Court, the redactions that arc agreed to arc marked in blue; those that are in dispute arc marked in red. Redactions that appear in plain black are pre-existing (i.c., they arc 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 [DE48] and Exhibit A thereto and, instead, that the Court unseal only a redacted version of those pleadings, that is, the redacted documents filed 8 EFTA00177174

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. elt Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: dexter.leeQusdoi.uov 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 Li 9 EFTA00177175

Case 9:08-cv-80736-KAM Document 60 Entered on FLSD Docket 04/07/2011 Page 10 of 10 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., 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: bradkpathtoiustice.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: casselp(allaw.utah.cdu Attorneys for Jane Doe # 1 and Jane Doe # 2 I0 EFTA00177176

Case 9:08-cv-80736-KAM Document 54 Entered on FLSD Docket 03/28/2011 Page 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA/JOHNSON JANE DOE #1 and JANE DOE #2, Plaintiffs, 1. UNITED STATES OF AMERICA, Defendant. NOTICE OF' OBJECTION Petitioners Jane Doe 1 and Jane Doe 2 have moved for disclosure of settlement letters between the U.S. Attorney's Office and the lawyers who represented Jeffrey Epstein during a federal criminal investigation. [DE 50 at 5). Doe 1 and Doe 2 seek to use these letters as evidence in this civil matter, and request the Court's permission to disseminate the letters to the international media [DE 511. Even though the letters are sealed and subject to a protective order issued by the Magistrate Judge in the related case 9:08-CV-80893, at least one of these letters was leaked last week to The Daily Beast, an online "omnivorous guide" to gossip and news that boasts 51 million web page views.' Some of the lawyers who represented Jeffrey Epstein during the federal criminal investigation and whose work product was included in the settlement letters, object to the release and dissemination the settlement letters. These lawyers will be filing a motion to intervene and a memorandum of law within the 14-day period provided by the Rules to respond to DE 50 and DE ' The Daily Beast, www.thedailybeast.com/blogs-and-stories/2011-03-25/jeffrey- epstein-how-the-billionaire-pedophile-got-ofiernya/, last visited March 27, 2011. EFTA00177177

Case 9:08-cv-80736-KAM Document 54 Entered on FLSD Docket 03/28/2011 Page 2 of 3 51, which Doe 1 and Doe 2 filed on March 21, 2011. Members of the defense team will be objecting and seeking a protective order on the grounds that the letters fall under the protections of opinion work-product of the lawyers, as well as the broad protections of Federal Rules of Evidence 410 and 408, Federal Rule of Criminal Procedure 11, and the constitutional right to effective assistance of counsel. The lawyers will also object to dissemination of these letters because they contain information from the grand jury's investigation, and this information is confidential pursuant to Federal Rule of Criminal Procedure 6(e). In an abundance of caution, defense team members Roy Black and Martin Weinberg, two of the attorneys who represented Jeffrey Epstein during the investigation, are filing this pleading to provide notice to the Court and the parties of the intention to object to the disclosures sought by Doe 1 and Doe 2. A motion to intervene for this purpose, and a memorandum of law, will be filed no later than April 4, 2011. Attorney Martin Weinberg, a member in good standing of the Massachusetts Bar, will be filing a motion for permission to appear pro hac vice in these proceedings. We certify that on March 28, 2011, we electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system. 2 EFTA00177178

Case 9:08-cv-80736-KAM Document 54 Entered on FLSD Docket 03/28/2011 Page 3 of 3 We also certify that a copy of the foregoing was sent via separate email to all counsel of record. Respectfully submitted, MARTIN G. WEINBERG, P.C. 20 Park Plaza Suite 1000 Boston, MA 02116 Office: (617) 227-3700 Fax: (617) 338-9538 By r IM 1 ARTIN G. WEINBERG, ESQ. Massachusetts Bar No. c 11 iieD 3 BLACK, SREBNICK, KORNSPAN & STUMPF, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, Florida 33131 Office: (305 -1-u21 Fax: (305) 6 By ROY BLACK, ESQ. Florida Bar No. 919063 EFTA00177179

LI V LI EFTA00177180

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 1 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA/JOHNSON JANE DOE I and JANE DOE 2, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. MOTION TO INTERVENE OF ROY BLACK, MARTIN WEINBERC, AND JAY LEFKOWITZ This is a motion pursuant to Federal Rule of Civil Procedure 24(a) by attorneys Roy Black, Martin Weinberg, and Jay Lefkowitz, to intervene for the purpose of seeking a protective order and responding to the motions of Jane Doe I and Jane Doe 2 for disclosure and widespread dissemination of letters written between these attorneys and federal prosecutors to settle a federal criminal investigation of their client. Jane Doc I and Jane Doe 2 claim that the U.S. Attorney's Office did not treat them fairly and did not give them an opportunity to confer with prosecutors before the Office settled its federal criminal investigation of Jeffrey Epstein three years ago. Mr. Epstein has fully performed under the terms of the settlement, which are set out in detail in a Non-Prosecution Agreement and Addendum. Mr. Epstein has served a prison sentence pursuant to a guilty plea and has paid substantial sums of money in settlement of civil actions, including to Jane Doe I and Jane Doe 2. Jane Doc I and Jane Doe 2 now take issue with the government's resolution of the Epstein investigation. They have invoked the Crime Victims' Right Act to ask this Court to invalidate the EFTA00177181

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 2 of 19 Non-Prosecution Agreement reached between the U.S. Attorney's Office and Mr. Epstein. Jane Doe 1 and Jane Doc 2 also seek other unspecified relief, which they call "appropriate remedies," for the government's purported failure to keep them involved in the settlement negotiations. Jane Doe I and Janc Doc 2 have never articulated what these other remedies may be. Invalidating the Non-Prosecution Agreement is expressly not a remedy under the Crime Victims' Rights Act: "Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." I8 U.S.C. § 3771(dX6). Seeking damages is also not a remedy under the Act: "Nothing in this chapter shall be construed to authorize a cause of action for damages or to create, to enlarge, or to imply any duty or obligation to any victim or other person for the breach of which the United States or any of its officers or employees could be held liable in damages." Id. As a matter of law, Jane Doc 1 and Jane Doc 2 arc not entitled to invalidate a prosecutor's decision to settle a federal criminal investigation by way of a non-prosecution agreement. The Act plainly recognizes this, and expressly protects the prosecutorial discretion of the Attorney General and his Assistants. The decision whether to seek federal criminal charges rests exclusively with the Attorney General and the Department of Justice. Neither Jane Doc I, Jane Doc 2, nor the Court can force a federal prosecutor to seek an indictment where none has been sought, or to take back an agreement not to prosecute. 18 U.S.C. § 3771(d)(6); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (the decision whether to prosecute is "particularly ill-suited to judicial review," and "not readily susceptible to the kind of analysis the courts are competent to undertake"). This case illustrates the wisdom of that policy: Jane Doe 1 and Jane Doe 2 would have the Court invalidate the Non- 2 EFTA00177182

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 3 of 19 Prosecution Agreement years after both parties have fully performed and where, in reliance on that agreement, Mr. Epstein pleaded guilty, served a prison sentence, and settled many civil actions, including actions by Jane Doe I and Jane Doe 2. Proposed intervenors are some of the lawyers who represented Mr. Epstein during the federal investigation and who negotiated the settlement and Non-Prosecution Agreement with the U.S. Attorney's Office. We seek to intervene in this litigation because Jane Doc 1 and Jane Doe 2 — despite having no right to invalidate the Non-Prosecution Agreement — have latched on to the Crime Victims' Rights Act to seek disclosure of all the negotiation letters between Mr. Epstein's defense lawyers and the U.S. Attorney's Office. The letters prepared by Mr. Epstein's lawyers contain the opinions, strategics, and thought processes of the defense team concerning the matters under investigation. The letters written by the prosecutors respond to these opinions, strategies, and thought processes. All the letters were written in furtherance of settlement, encouraged by the broad protections of Federal Rules of Evidence 410 and 408, Federal Rule of Criminal Procedure 11(f), and the constitutional right to effective assistance of counsel. Jane Doc 1 and Jane Doc 2 not only seek discovery of these letters, but they also seek to disseminate them to the international media [DE 51 at 1, 7]. Intervention is proper under Federal Rule of Civil Procedure 24(a) because the lawyers have an independent right to protect their letters containing their opinion work product, and the interests of the lawyers are not adequately represented by the only other party in this case, the government. See In re Grand Jury Proceedings, 43 F.3d 966, 972 (5th Cir. 1994) ("[T]he work product privilege belongs to both the client and the attorney, either one of whom may assert it"). "Colorable claims of . .. work product privilege qualify as sufficient interests to grant intervention as of right." In re 3 EFTA00177183

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 4 of 19 Grand Jury Subpoena, 274 F.3d 563, 570 (1st Cir. 2001); accord In re Grand Jury Investigation, 445 F.3d 266, 269 (3d Cir. 2006). Equally important, the release of these letters — and the precedent it would establish — would have a severe chilling effect on the lawyers' ability to engage in candid settlement discussions with the government in future cases. Indeed, to the extent such written correspondence is deemed discoverable by third parties, criminal defense attorneys and the government's lawyers alike would lose the ability to negotiate such agreements — and to provide the most vigorous defense of their respective clients' interests — without being inhibited by the possible disclosure of their correspondence in meritless lawsuits like this one. Given the lawyers' powerful interest in maintaining their ability to vigorously represent their clients' interests without such barriers, they surely have a right to intervene. Intervention is also appropriate to invoke Federal Rule of Criminal Procedure 6(c), because the letters discuss matters occurring before the grand jury during its investigation. This grand jury information is strictly confidential under Rule 6(e), and disseminating it to the media for gossip and ridicule, as Jane Doc I and Janc Doc 2 intend to do [DE 51 at 7], is decidedly contrary to the historical protections Courts have afforded to the grand jury process. If allowed to intervene, the defense lawyers would file the attached motion for a protective order in response to the motion of Janc Doe 1 and Jane Doc 2 for disclosure of the defense settlement letters [DE 50 at 5], their motion to use these settlement letters as substantive evidence in their quest to invalidate the Non-Prosecution Agreement [DE 51], and their motion to disseminate these letters to the international media [DE 51 at 7]. Undersigned counsel Roy Black has requested the admission pro hac vice of proposed 4 EFTA00177184

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 5 of 19 intervenor attorney Martin Weinberg [DE 55]. We will be requesting the admission pro hoc vice of proposed intervenor attomcyJ ay Lefkowitz within the next few days, as soon as a certificate of good standing from the New York Bar arrives. Attorneys Black, Weinberg and Lcfkowitz do not seek intervention to litigate whether the Crime Victims' Rights Act was violated and if so, against whom a remedy is appropriate. Instead, the attorneys seek a limited intervention as parties in their own right, for the limited purposes of protecting against the dissemination of clearly protected correspondence exchanged with the government during plea negotiations. As the lawyers representing Mr. Epstein, these attorneys have an independent right to intervene and seek protection of their correspondence. See In re Grand -hay Proceedings, 43 F.3d at 972 ("[W]ork product privilege belongs to both the client and the attorney, either one of whom may assert it"). The intervention of these attorneys is limited and only for the purpose of advancing their interests in the confidentiality of the correspondence. Jeffrey Epstein does not seek to intervene at this time because the issue of whether the Crime Victims' Rights Act even applies in this case is a matter between the government and Jane Doe I and Jane Doe 2, and because the Non-Prosecution Agreement is not subject to invalidation under the terms of the Crime Victims' Rights Act and well-established case law. To the extent the Court were to consider invalidating the Non-Prosecution Agreement as a remedy, Jeffrey Epstein reserves the right to intervene at that time. 5 EFTA00177185

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 6 of 19 We certify that on April 7, 2011, the foregoing document was filed electronically with the Clerk of the Court using the CM/ECF system. Respectfully submitted, BLACK, SREBNICK, KORNSPAN & STUMPF, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, Florida 33131 Office: (305) 371-6421 Fax: (305) 358-2006 By /S/ • ROY BLACK, ESQ. Florida Bar No. 126088 JACKIE PERCZEK, ESQ. Florida Bar No. 0042201 On Behalf of intervenors Roy Black and Jay Lefkowitz MARTIN G. WEINBERG, P.C. 20 Park Plaza Suite 1000 Boston, MA 02116 Office: (617) 227-3700 Fax: (617) 338-9538 By /S/ MARTIN G. WEINBERG, ESQ. Massachusetts Bar No. 519480 On Behalf of Intervenor Martin Weinberg 6 \-1 EFTA00177186

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 7 of 19 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA/JOHNSON JANE DOE I and JANE DOE 2, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. INTERVENORS' MOTION FOR A PROTECTIVE ORDER AND OPPOSITION TO MOTIONS OF JANE DOE 1 AND JANE DOE 2 FOR PRODUCTION, USE, AND DISCLOSURE OF SETTLEMENT NEGOTIATIONS Jane Doc 1 and Jane Doc 2 complain that the government treated them unfairly by not keeping them involved in the government's settlement negotiations with Jeffrey Epstein. They seek to invalidate the Non-Prosecution Agreement between Mr. Epstein and the government, claiming that the agreement violates the Crime Victims's Rights Act. Jane Doe I and Jane Doe 2 seek disclosure of all the letters between the lawyers defending Mr. Epstein and federal prosecutors during the criminal investigation. They claim that the letters are relevant and admissible to show that the government did not live up to its obligations under the Crime Victims' Rights Act. Jane Doe I and Jane Doe 2 have copies of the letters and emails the government wrote to the defense team, and now seek copies of the letters the defense wrote to the prosecutors. [DE 50 at 5]. The letters and cmails prepared by the government arc subject to a protective order prohibiting their disclosure. In the related case 9:08-CV-80893 (the case where Jane Doe I and Jane Doe 2 sued Mr. Epstein for money), the Magistrate Judge prohibited Jane Doe 1 and Jane Doe 2 EFTA00177187

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 8 of 19 from making "the subject correspondence public by either filing the correspondence in a court file, attaching it to a deposition, releasing it to the media, or publically disseminating it in any other fashion, before allowing Epstein an opportunity to object to its disclosure . . . ." [DE 226 at 4] (emphasis added). The order is dated January 5, 20I 1. Established case law as well as sound and substantial policy considerations prohibit disclosure of the defense settlement letters written to the government, and require that the letters and emails that Jane Doc I and Jane Doe 2 already have remain confidential. The release of these letters, and the precedent it would establish, would have a severe chilling effect on the lawyers' ability to engage in candid settlement discussions with the government in future cases. Indeed, to the extent such written correspondence is deemed discoverable by third parties, criminal defense attorneys and the government's lawyers alike would lose the ability to negotiate such agreements, and to provide the most vigorous defense of their respective clients' interests, without being inhibited by the possible disclosure of their correspondence in meritless lawsuits like this one. The Court should decline the invitation to fuel the media campaign against Mr. Epstein and should deny the motions by Jane Doc I and Jane Doc 2 to release materials that are plainly the privileged opinion work-product of the attorneys, that constitute settlement negotiations under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure II, and that contain information about matters occurring before the grand jury, which arc strictly confidential under Federal Rule of Criminal Procedure 6(e). There is no question that Janc Doe I and Jane Doc 2 intend to disseminate these confidential communications to the media to ridicule and prejudice Mr. Epstein. And currying favor with the media at Mr. Epstein's expense is not new to Bradley Edwards, the lawyer who represents Jane Doe 2 EFTA00177188

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 9 of 19 I and Jane Doe 2. Ile and his own lawyer in a related state case, Jack Scarola, have been widely quoted by local and British press, making prejudicial and inflammatory statements about Mr. Epstein. If the correspondence between the defense team and the government is not kept confidential, attorneys Scarola and Edwards could reasonably be expected to continue disseminating out-of-court publicity and making extrajudicial statements and commentary to the media to prejudice Mr. Epstein. I. THE LETTERS ARE THE PRIVILEGED OPINION WORK-PRODUCT OF THE ATTORNEYS The correspondence with the government contains the opinions, strategies, and thought processes of the defense team concerning the matters under investigation. The letters were obviously written in furtherance of settlement, and constitute the privileged opinion work-product of the lawyers. The Court should deny the motion by Jane Doe I and Jane Doc 2 for their production [DE 50 at 5]. A. THE CONTOURS OF THE PRIVILEGE The United States Supreme Court has recognized "a qualified privilege for certain materials prepared by an attorney 'acting for his client in anticipation of litigation.' United States' Nobles, 422 U.S. 225, 238 (1975). The work-product doctrine applies in civil and criminal litigation. Id. at 236. In Hickman' Taylor, the Supreme Court described the policy behind the doctrine protecting the opinion work-product of lawyers. The Court explained that a lawyer is bound "to work for the advancement of justice while faithfully protecting the rightful interests of his clients." 329 U.S. at 510-11. To perform his duties, "it is essential that a lawyer work with a certain degree of privacy, 3 EFTA00177189

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 10 of 19 free from unnecessary intrusion by opposing parties and their counsel." Id. Properly preparing a client's case demands that the lawyer "assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories, and plan his strategy without undue and needless interference." Id. The lawyer's work is reflected "in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways . . .." Id. If such materials were open to adverse parties "on mere demand," then "much of what is now put down in writing would remain unwritten. An attorney's thoughts, heretofore inviolate, would not be his own." Id. Inevitably, "[i]nefficiency, unfairness and sharp practices would . . . develop in the giving of legal advice and in the preparation of cases for trial." Id. Ultimately, "[t]he effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served." Id. For these reasons, the opinion work-product of the lawyers is afforded the most comprehensive protection under the law. "[A] highly particularized showing," as well as "rare and extraordinary circumstances" arc required to overcome such a claim of privilege. In re Air Crash Near Cali, Colombia, 959 F. Supp. 1529, 1536-37 (S.D. Fla. 1997) ("a highly particularized showing" is required to overcome a claim of privilege); Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11th Cir. 1994) ("Opinion work product enjoys a nearly absolute immunity and can be discovered only in very rare and extraordinary circumstances"). 4 EFTA00177190

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 11 of 19 B. JANE DOE 1 AND JANE DOE 2 HAVE NOT MADE A HIGHLY PARTICULARIZED SHOWING OF NEED OR OF RARE AND EXCEPTIONAL CIRCUMSTANCES There are no rare or exceptional circumstances in this case. Jane Doe I and Jane Doc 2 assert only that the defense team correspondence is "highly relevant" and "discusses" their rights as "crime victims[,] so it is obviously quite material." [DE 50 at 5]. These are just conclusions, neither rare nor exceptional, and they are not supported by any factual allegations in the pleadings. Indeed, nothing in the motion explains how the opinions of the defense lawyers would add to the claim that the government did not live up to its obligations under the Crime Victims' Rights Act. Jane Doe 1 and Jane Doe 2 have not made a "highly particularized showing" of their need for these letters. On the contrary, their pleadings show conclusively that they do not need the letters to establish their claims. Jane Doe I and Jane Doe 2 have moved for summary judgment [DE 48]. By submitting this motion, Jane Doe 1 and Jane Doe 2 admit that they do not require additional discovery, and obviously do not need the settlement letters to substantiate their claims under the Crime Victims' Rights Act. As a matter of law, Jane Doe I and Jane Doc 2 cannot show a highly particularized valid need for the correspondence for two additional reasons: First, they seek the letters to invalidate the Non-Prosecution Agreement, which is expressly prohibited by the Crime Victims' Rights Act. Second, they seek the letters to use them as evidence, which is expressly prohibited by the Rules of Evidence. (I) There Is No Valid Need When The Goal Is To Use The Letters To Invalidate The Non-Prosecution Agreement: Under the Crimc Victims' Rights Act, neither Jane Doe I, Jane Doe 2. nor the Court can invalidate the Non-Prosecution Agreement. The Act expressly prohibits it: 5 EFTA00177191

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 12 of 19 "Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." 18 U.S.C. § 377I(d)(6). The Act codifies the long-standing principle that It]he Attorney General and United States Attorneys retain broad discretion to enforce the Nation's criminal laws." United States v. Armstrong, 517 U.S. 456, 464 (1996). This is due in large pan to the separation of powers doctrine — prosecutors are delegates of the President, helping him discharge his constitutional obligation "to take Carc that the Laws be faithfully executed." Id.; U.S. CoNs-r. an. II, § 3. Whether to investigate possible criminal conduct, grant immunity, negotiate a plea, or dismiss charges, arc all central to the prosecutor's executive function. United States' Smith, 231 F.3d 800, 807 (11th Cir. 2000). "The judiciary cannot interfere with a prosecutor's charging discretion, except in narrow circumstances where it is necessary to do so in order to discharge the judicial function of interpreting the Constitution." Id. And this Court has not been called upon to interpret the Constitution. The most recent and compelling precedent illustrate the complete absence of case support for the proposition advanced by Jane Doc 1 and Jane Doe 2 — that after a Non-Prosecution Agreement is final and its terms and burdens have been fully met, a Court can invalidate that agreement because a third party was not given an opportunity to express an opinion about its terms. Jane Doe 1 and Jane Doc 2 rely on In re Dean, 527 F.3d 391 (5th Cir. 2008), to support invalidation of the Non-Prosecution Agreement. In re Dean was litigated by one of the lawyers who also represents Janc Doc 1 and Jane Doe 2 here. Despite citing and quoting from In re Dean throughout his papers in this litigation, the lawyer skips over what is arguably the most important part of the /n re Dean litigation as it pertains to the relief sought here: Following remand from the Fifth Circuit, the district court denied the motion of the victims to invalidate the defendant's plea agreement as a 6 EFTA00177192

Case 9:08- cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 13 of 19 c., remedy for the claimed violation of the Crime Victims' Rights Act. The district court expressly noted on remand that "[t]he purpose of the conferral right is not to give the victims a right to approve or disapprove a proposed plea in advance or to participate in plea negotiations." In re Dean on remand as United States tBP Products North America, Inc., 610 F. Supp. 2d 655, 727 (S.D. Tex. 2009). Instead, "[t]he purpose of the reasonable right to confer is for victims to provide information to the government, obtain information from the government, and to form and express their views to the government and court." Id. The district court concluded that the violations alleged by the victims did not provide a basis for rejecting the plea agreement. Id. at 726-27; see In re Acker, 596 F.3d 370, 373 (6th Cir. 2010) (denying mandamus where petitioners sought to vacate plea agreement which made no provision for restitution in deference to pending civil litigation); United States I Aguirre-Gonzalez, 597 F.3d 46 (1st Cir. 2010) (relying on the "strong interest in the finality of criminal sentences" to reject mandamus under the Act where a defendant had pleaded guilty and had been sentenced more than two years earlier); see also United States Etedonie, 413 F.3d 1126, 1129-30 (10th Cir. 2005) (district court had no authority under mandatory restitution act to reopen restitution proceedings after sentencing). More recently in the case °fin re Peterson, No. 2:10-CV-298, 2010 WL 5108692 (N.D. Ind. Dec. 8, 2010), the district court denied relief under the Crime Victims' Restitution Act before any charges were filed. The court recognized that the Act "guarantees crime victims a range of substantive and participatory rights," but that "[w]hether charges might be filed and proceedings initiated in the future is a matter of prosecutorial discretion, and the [Act] expressly provides that '[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any office under his direction."' Id. at *2 (quoting 18 U.S.C. § 3771(dX6)). 7 EFTA00177193

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 14 of 19 Jane Doe I and Jane Doc 2 have not identified what relief they seek other than invalidation of the Non-Prosecution Agreement. They obviously cannot seek money damages under the Act. 18 U.S.C. § 3771(d)(6). They have requested a hearing so that the Court can pick some form of "appropriate relief' for them. Under these circumstances, Jane Doc 1 and Jane Doc 2 have failed to establish any valid need, or a rare and extraordinary circumstance, to overcome "the nearly absolute immunity" given to attorney opinion work-product. (ii) There Is No Valid Need When The Goal Is To Use The Letters As Evidence: Jane Doe I and Janc Doc 2 have moved for admission of the settlement letters in evidence. This is plainly contrary to Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11. The letters exchanged between the government and defense counsel contain the legal discussions and analyses prepared by attorneys for both sides, in an effort to reach the best possible result for their clients. The letters were classic settlement discussions, written with the intention that they remain confidential and protected by Rules 410 and 408, Federal Rule of Criminal Procedure 11, and the constitutional right to effective assistance of counsel. Under the express language of Rule 410, these letters arc "not, in any civil or criminal proceeding, admissible against the defendant who . . . was a participant in the plea discussions . . . ." FED. R. EvID. 410 (emphasis added). Of course, Jane Doc 1 and Jane Doc 2 seek to use the correspondence "against" Mr. Epstein, even though he is not a party to this civil action. The words "not . . . admissible against the defendant" refer to "the purpose for which [the evidence] is offered" and not "to the kind of proceeding in which the evidence is offered." FED. R. CRIM. PRO. I I advisory committee note 1979 amendment (emphasis added). And the stated purpose ofJane Doc 1 and Jane Doc 2 is to invalidate the government's Non-Prosecution Agreement with Mr. Epstein. 8 EFTA00177194

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 15 of 19 The purpose of Rule II and Rule 410 is to permit "the unrestrained candor which produces effective plea discussions." Id. Disposition of cases following plea discussions "is not only an essential part of the process but a highly desirable part for many reasons." Santobellol. New York, 404 U.S. 257, 261 (1971). Among them is the obvious fact that these negotiations "lead to prompt and largely final disposition of most criminal cases . . .." Id. The law favors plea negotiations and the resolution of criminal matters. But "for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him." United States' Herman, 544 F.2d 791, 796 (5th Cir. 1977). The candor and meaningful dialogue that bring about settlements would be impossible if either party risked having their statements used against them. The Court should deny the motion of Jane Doe 1 and Jane Doe 2 to use the letters as evidence. Their claim that "the correspondence is plainly admissible as it is highly relevant" [DE 51 at 5] misses the point and ignores the purpose and policy of Rule 410. It is precisely because plea negotiations may be relevant in a subsequent civil action that Rule 410 expressly excludes them. 11. THE LETTERS ARE CONFIDENTIAL UNDER FEDERAL RULE OF CRIMINAL PROCEDURE 6(E) BECAUSE THEY DISCUSS MATTERS OCCURRING BEFORE THE GRAND JURY The settlement letters prepared by the government and those prepared by the defense should remain confidential and subject to a protective order because they contain grand jury information. Federal Rule of Criminal Procedure 6(eX2) prohibits disclosure of"a matter occurring before the grand jury." FED. R. CRIM. P. 6(e)(2). This prohibition has been read broadly to include all matters taking place before the grand jury and not just testimony. Thus, even though the negotiation 9 EFTA00177195

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 16 of 19 letters between the lawyers and the government are not themselves "a matter occurring before the grand jury," they arc properly confidential under Rule 6(c) because they would reveal grand jury information. The letters discuss the government's investigative and law enforcement strategy as well as the direction of the federal investigation, all matters that are properly protected as occurring before the grand jury. See Fund, or Constitutional Gov't v. Nat'l Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir. 1981) (identities of witnesses, substance of testimony, strategy, and direction of the investigation are properly protected by Rule 6(c)). Jane Doc I and Jane Doc 2 have not articulated any legitimate, particularized need for grand jury information. First, their stated strategy is to spread these letters among media outlets such as the television show Law and Order, gossip columnist Jose Lambiet of the Palm Beach Post, and the British media, which Jane Doe 1 and Jane Doe 2 state has "gone berserk" with gossip about Mr. Epstein. [DE 51 at 7]. Inciting a media campaign against Mr. Epstein is decidedly not a valid basis for releasing grand jury information. To be sure, the press has no First Amendment right of access to matters occurring before a grand jury. In re Subpoena To Testify Before Grand Jury, 864 F.2d 1559, 1562 (1Ith Cir. 1989).' Second, Jane Doc I and Jane Doc 2 have moved for summary judgment, claiming that the facts arc not in dispute and that they are entitled to judgment in their favor as a matter of law. [DE 48]. By their own admission, Jane Doc I and Jane Doc 2 require no additional discovery, and obviously do not need the settlement letters to substantiate their claims under the Crime Victims' And any hearing or proceeding where grand jury material may be revealed would have to be closed to the public, including the press. In re Newark Morning Ledger Co., 260 F.3d 217, 226 (3d Cir. 2001) (secrecy afforded grand jury materials extends to hearings where grand jury information may be revealed). 10 EFTA00177196

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 17 of 19 Rights Act. The motion for summary judgement, by definition, establishes that Jane Doc 1 and Jane Doe 2 have no particularized need for the letters. See SEC'. Merrill Scott & Assocs., L►d., 600 F.3d 1262, 1271 (10th Cir. 2010) (affirming order limiting discovery where movant did not "show any need for further discovery in light of the limited nature of the relief he has requested"). Third, Jane Doe 1 and Jane Doe 2 seek disclosure of the letters so they can use them as evidence against Mr. Epstein, contrary to Federal Rule of Evidence 410. Under Rule 6(e), Jane Doe I and Jane Doe 2 can have no legitimate particularized need for grand jury materials that they intend to use in violation of the rules of evidence. See United States' Capozzi, 486 F.3d 711, 727 (1st Cir. 2007) (no right to grand jury transcripts established by defendant who sought them to substantiate an appeal ofa non-justiciable issue); see also United States' McYeigh, 119 F.3d 806,813 (10th Cir. 1997) (there is no constitutional right to access inadmissible evidence). Finally, as argued earlier, there can be no valid particularized need when Jane Doe I and Jane Doc 2 seek relief that is expressly prohibited by the Act and by established case law. 18 U.S.C. § 3771(dX6) ("Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction"); Waytel United States, 470 U.S. 598, 607-08 (1985) (the decision whether to prosecute is "particularly ill-suited to judicial review," and "not readily susceptible to the kind of analysis the courts are competent to undertake"). The letters between counsel and the government contain information of matters occurring before the grand jury, and are confidential under Federal Rule of Criminal Procedure 6(e). 1I EFTA00177197

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 18 of 19 III. CONCLUSION Whether to resolve a criminal investigation or contest a criminal charge is one of the most important decisions a client can make in a criminal case. Defense lawyers have a responsibility to make every possible inquiry to determine all valid defenses, to examine the facts, the circumstances and the law, and to provide clients with the best informed opinion as to what pleas to enter. If the decision is made to resolve a criminal case or investigation, defense lawyers have the added responsibility of mitigating their client's liability and negotiating the best possible agreement. These arc solemn responsibilities, grounded on the client's constitutional right to effective representation of counsel. Defense lawyers arc encouraged by Federal Rule of Criminal Procedure 11(0, Federal Rule of Evidence 410, and their constitutional obligations, to negotiate with the government candidly and in a meaningful way, without fear or risk that what they say will later be used against their clients in a civil proceeding. Relying on these protections and on the opinion work-product doctrine, defense lawyers openly explore alternative pleas with the government, propose different strategies, and divulge defenses and information that they would otherwise maintain confidential. This is precisely the type of open dialogue that the Rules envision because it results in a settlement — as this case illustrates. Intervenors who represented Mr. Epstein during the criminal investigation oppose disclosure of the settlement correspondence and its dissemination to the public. We request that the protective order issued by the Magistrate Judge in the related cast remain in place, and that a similar order issue in this case. 12 EFTA00177198

Case 9:08-cv-80736-KAM Document 56 Entered on FLSD Docket 04/07/2011 Page 19 of 19 We certify that on April 7, 2011, the foregoing document was filed electronically with the Clerk of the Court using the CM/ECF system. Respectfully submitted, BLACK, SREBNICIC, KORNSPAN & STUMPF, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, Florida 33131 Office: (305) 371-6421 Fax: (305) 358-2006 By /S/ ROY BLACK, ESQ. Florida Bar No. 126088 JACKIE PERCZEK, ESQ. Florida Bar No. 0042201 On Behalf of Intervenors Roy Black and Jay LeJkowitz MARTIN G. WEINBERG, P.C. 20 Park Plaza Suite 1000 Boston, MA 02116 Office: (617) 227-3700 Fax: (617) 338-9538 By /S/ MARTIN G. WEINBERG, ESQ. Massachusetts Bar No. 519480 On Behalf of Intervenor Martin Weinberg 13 EFTA00177199

L) ..1 EFTA00177200