306 425 FEDERAL SUPPLEMENT, 3d SERIES

306 425 FEDERAL SUPPLEMENT, 3d SERIES t In short, the issue now before the Court has arisen only because Donziger unjustifi- ably has refused to comply with his discov- ery obligations. Had he done so — i.e., had he produced responsive documents as to which there was no colorable claim of priv- ilege, submitted a privilege log as to re- sponsive documents as to which there was such a colorable claim, and submitted any disputes for judicial resolution - there would be no need to examine his ESI. But he has not. And the Court thus must take appropriate action. His arguments to the contrary are meritless. Conclusion For the foregoing reasons, the Court has entered the protocol for imaging and forensic examination of Donziger's elec- tronic devices and media. SO ORDERED. the six months between being served with the document requests and the Court's eventual ruling, on October I8, 2018, that Donziger had waived any applicable privi- lege. Third, Donziger disregards the fact that when he belatedly produced a "privilege log" in the prior litigation it was about 2,000 pages long and scheduled over 8,652 supposedly privileged documents. The "privilege log," however, contained not even one communication between Donziger and his putative clients. It claimed privilege as to more than 2,500 documents "sent or disclosed to a public relations person, the founder of the Amazon Defense Front ..., Amazon Watch, and a host of newspapers and magazines" none of which could have been privileged if only because they were not confidential lawyer-client communica- tions. In re Chevron Corp., 749 F. Supp. 2d at 184. Thus, the privilege log tardily sub- mitted in the prior case was not a good faith attempt to make only colorable claims of privilege as distinguished from an at- tempt to stall discovery. See id. at 184-85. UNITED STATES of America, Government, v. Jeffrey EPSTEIN, Defendant 19 CR. 490 (RMB) United States District Court, S.D. New York. Signed July 18, 2019 Background: Defendant was charged with sex trafficking and sex trafficking conspiracy. Defendant moved for pretrial release. Holdings: The District Court, Richard M. Berman, Senior District Judge, held that: (1) defendant posed danger to others and to community; So too here in the sense that Donziger has made no good faith effort to comply with his obligations concerning claims of privi- lege. Fourth, Donziger's behavior here regarding privilege claims, just as in the related prior case, has been undertaken for tactical ad- vantage. He never posted a supersedeas bond, which would have stayed enforce- ment of the money judgment as of right, nor sought a stay of its enforcement on any other basis. And while he did seek a stay from this Court of certain discovery from a non-party witness and a broader protective order and has appealed from the order de- nying his motion, see DI 2045. he never has sought a stay or injunction pending appeal from the Circuit in the more than three months since this Court ruled. It appears that his obdurate refusal to comply with discovery obligations and court orders is an attempt to obtain by self help the stay of discovery that this Court denied and that he has not sought from the Circuit. 41. DI 2108 8 1. EFTA00066191 U.S. v. EPSTEiN Cute as 425 F.Supp.ld 306 (S.D.N.Y. 2019) (2) defendant was serious risk of flight and conditions could not be set that reason- ably would assure his appearance at trial; and (3) defendant's proposed bail package did not weigh in favor of pretrial release. Motion denied. 1. Bail €=49(4) In most federal cases the rebuttable presumption that applies favors pretrial release, not remand. 2. Bail er49(5) Sex trafficking victims are entitled to be heard in court, including on the ques- tion of whether the defendant is to be released or remanded. 18 U.S.C.A. §§ 3142, 3771. 3. Bail cr>49(3.1) Under the Bail Reform Act, a finding of a defendant's dangerousness must be supported by clear and convincing evi- dence. 18 U.S.CA.* 3142. 4. Bail €=.42 Under the Bail Reform Act, where there is a strong probability that a person will commit additional crimes if released, the need to protect the community be- comes sufficiently compelling that deten- tion is, on balance, appropriate. 18 U.S.CA. § 3142. 5. Bail e=:073.1(1) Under the Bail Reform Act, even a single incident of witness tampering may be sufficient to revoke bail. 18 U.S.C.A. § 3142. 307 6. Bail e=49(3.1) To order detention under the Bail Re- form Act based upon risk of flight, a court must find by a preponderance of the evi- dence that no conditions could reasonably assure the defendant's presence at trial. 18 U.S.CA.* 3142. 7. Bail G=.42 The constitutional limits on a deten- tion period under the Bail Reform Act based on dangerousness to the community may be looser than the limits on a deten- tion period based solely on risk of flight; in the former case, release risks injury to others, while in the latter case, release risks only the loss of a conviction, and therefore a bail package that may reason- ably assure the appearance of the defen- dant at trial will not necessarily assure the safety of the community. 18 U.S.C.A. § 3142. 8. Bail €=.49(5) Under the Bail Reform Act, the weight afforded to each factor to be con- sidered in the release-remand analysis is within the special province of the district court. 18 U.S.CA.* 3142. 9. Bail 049(5) A district court is afforded wide dis- cretion regarding the scope of a release- remand hearing under the Bail Reform Act. 18 U.S.CA. § 3142(f)(2). 10. Bail C=.49(4) The government retains the ultimate burden of persuasion under the Bail Re- form Act in a case involving sexual victim- ization of a minor that a defendant pres- ents a danger to the community by clear and convincing evidence and that the de- fendant presents a risk of flight by a pre- ponderance of the evidence; even if rebut- tal evidence is presented, the presumption favoring detention does not disappear en- tirely and it remains a factor to be consid- EFTA00066192 308 425 FEDERAL SUPPLEMENT, 3d SERIES ered among those weighed by the district court. 18 U.S.C.A. H 1591, 3142(e)(3)(E). 11. Bail tz=.42 Defendant charged with sex traffick- ing and sex trafficking conspiracy posed danger to others and to community, weigh- ing against pretrial release under Bail Re- form Act, where defendant was alleged to have committed sex crimes with minor girls and tampered with potential wit- nesses, victims feared for their safety if he were released, he posed threat to addition- al young girls if he was released, and compliance with his legal obligations as registered sex offender was lacking. 18 U.S.CA. 0 1591, 3142. 12. Bail e=49(4) Under the Bail Reform Act, if the defendant in a case involving sexual victim- ization of a minor comes forward with evidence that he will not endanger the community or flee the jurisdiction, the pre- sumption of remand is not erased; rather, the presumption remains in the case as an evidentiary finding militating against re- lease, to be weighted along with other evidence. 18 U.S.CA. §§ 1591, 3142. 13. Bail e=42 Defendant charged with sex traffick- ing and sex trafficking conspiracy was ser- ious risk of flight and conditions could not be set that reasonably would assure his appearance at trial, weighing against pre- trial release under Bail Reform Act, where defendant had limited family ties to United States, he had unexplained assets, and he had incentive, motive, and wherewithal to flee, given his residence in Paris, his ex- tensive overseas travel, his significant wealth and his substantial resources, in- cluding private planes, and potential 45 year term of imprisonment that could be imposed if he was convicted. 18 U.S.C.A. §§ 1591, 3142. 14. Bail tz=.42 A finding of either danger to the com- munity or risk of flight will be sufficient under the Bail Reform Act to detain the defendant pending trial. 18 U.S.C.A. § 3142. 15. Bail er42 The factors to be considered under the Bail Reform Act in analyzing risk of flight are the same factors that apply when analyzing dangerousness. 18 U.S.CA § 3142(g). 16. Bail e="49(5) Under the Bail Reform Act, the weight afforded to each factor to be con- sidered in analyzing risk of flight is within the special province of the district court. 18 U.S.CA. § 3142(g). 17. Bail e=.49(2, 3.1) Proposed bail package of defendant charged with sex trafficking and sex traf- ficking conspiracy did not weigh in favor of pretrial release under Bail Reform Act, since package was not accompanied or sup- ported by audited or certified financial statements, including details of income and expenses and debt obligations, defendant did not provide affidavit of his financial condition, he could make millions or tens of millions of dollars per year outside of Unit- ed States, package proposed excessive in- volvement of court in routine aspects of defendant's proposed home confinement which was not court's function, and defen- dant's proposal to give advance consent to extradition and waiver of extradition rights was empty gesture. 18 U.S.C.A. 3142(b), 3142(f)(2). 18. Bail e=49(2) Under the Bail Reform Act, each bail package in each case is considered and evaluated on its individual merits by the court. 18 U.S.C.A. § 3142. EFTA00066193 U.S. v. EPSTEIN Cite u423 F.Supp.34 306 (S.D.N.Y. 2019) Pro Hac Vice, United States Attorney's Office, New York, NY, Gloria Rachel Allred, Allred, Maroko & Goldberg, Los Angeles, CA, for Government. James L. Brochin, Michael Campion Miller, Michael Gerard Scavelli, Reid Weingarten, Steptoe & Johnson, LLP, Marc Allan Fernich, Law Office of Marc Fernich, New York, NY, Martin Gary Weinberg, Martin G. Weinberg, PC, Bos- ton, MA, for Defendant. DECISION & ORDER REMANDING DEFENDANT RICHARD M. BERMAN, U.S.D.J. A. Background This ruling follows the Court's bail hear- ing held on July 15, 2019. The issue before the Court is whether the Defendant should continue to be remanded (incarcerated) pending trial or whether he should be granted release while the case proceeds. No matter the answer to this question and no matter what has been said in Court in analyzing the matter, this is a criminal case and the Defendant, Jeffrey Epstein, is innocent of the Federal charges alleged against him now and until such time, if it comes, that a jury or the Court fmds (after fair and thorough consideration of the facts and the law) that he is guilty. See Transcript, dated July 8, 2019 ("7/8/19 Tr."), at 2-3; Transcript, dated July 15, 2019 ("7/1W19 Tr."), at 40. It should also be borne in mind that the Court has not (yet) been presented with a motion to dis- miss the Indictment. This is a federal as opposed to a state case. We proceed under federal law and federal rules. The key federal statute that applies here is 18 U.S.C. § 1591 which sets forth the crime of sex trafficking with which Mr. Epstein is charged. Mr. Epstein 309 is also charged with conspiring with others to commit sex trafficking under 18 U.S.C. § 371. [1] With respect to the issue of re- mand versus release, 18 U.S.C. § 3142 applies. It sets forth a presumption in favor of remand, an exception to the pre- sumption in most cases which favors pre- trial release. § 3142 states that: "if there is probable cause to believe that the person committed ... an offense involving a mi- nor victim under section ... 1591," then "it shall be presumed that no condition or combination of conditions will rea- sonably assure the appearance of the person as required and the safety of the community." 18 U.S.C. § 3142(e)(3)(E) (emphasis added); see United States v. Martir 782 F.2d 1141, 1144 (2d Cir. 1986). The Indictment in this case was returned by a grand jury thus establishing probable cause that the defendant committed the crimes of sex trafficking and sex traffick- ing conspiracy. See United States v. Contreras, 776 F2d 51, 55 (2d Cir. 1985) ("[A]n indictment returned by a duly con- stituted grand jury conclusively establishes the existence of probable cause for the purpose of triggering the rebuttable pre- sumptions set forth in § 3142(e)"). In most federal cases the rebuttable presumption that applies favors pretrial release, not remand. [2] There is another very important issue to be considered in this case. It has to do with "victims" of the crimes charged in the Indictment. Victims refer to the "minor" girls who are alleged to have been sexually trafficked by the Defendant. Un- der 18 U.S.C. § 3771, victims are entitled to be heard in court, including on the question of whether the defendant is to be released or remanded. Victims have, EFTA00066194 310 425 FEDERAL SUPPLEMENT, 3d SERIES among other things, been given the oppor- tunity to testify at the bail hearing. B. Counsels' Submissions The Government's letter application, dated July 8, 2019, requests that the Court remand Mr. Epstein. It argues that Mr. Epstein "poses [ ] an acute danger to the community" and, grounded in past experi- ence with this Defendant, that "if [Mr. Epstein is] allowed to remain out on bail, the defendant could attempt to pressure and intimidate witnesses and potential wit- nesses in this case, including victims and their families, and otherwise attempt to obstruct justice." Dkt. 11, Ex. 1 at 1. The Government also contends that "[i]n light of the strength of the Government's evi- dence and the substantial incarceratory term the defendant would face upon con- viction [45 years], there is an extraordi- nary risk of flight, particularly given the defendant's exorbitant wealth, his owner- ship of and access to private planes capa- ble of international travel, and his signifi- cant international ties." Id. The Government also provides the fol- lowing background information: "In or about 2005, the defendant was investigated by local police in Palm Beach, Florida, in connection with allegations that he had committed similar sex offenses against mi- nor girls. The investigation ultimately also involved federal authorities, namely the U.S. Attorney's Office for the Southern District of Florida and the FBI's Miami Office, and included interviews with vic- tims based in the Palm Beach area, includ- ing some of the alleged victims relevant to Count One of the instant Indictment. In the fall of 2007, the Defendant entered into a non-prosecution agreement ("NPA") with the Southern District of Florida in connec- tion with the conduct at issue in that inves- tigation, which the non-prosecution agree- ment identified as including investigations into the defendant's abuse of minor girls in the Palm Beach area." Id. at 3. "In June 2008, the defendant pled guilty in [Florida] state court to one count of procuring a person under the age of 18 for prostitution, a felony, and one count of solicitation of prostitution, [also] a felony. As a result, the defendant was designated as a sex offender with registration requirements under the national Sex Offender Registra- tion and Notcation Act" Id. The Defense moved on July 11, 2019, for pretrial release of Mr. Epstein, argu- ing that "Mr. Epstein's strict compliance with the various monitoring requirements associated with his sex-offender registra- tion actually decrease's] any danger that he might otherwise pose" and also that "Mr. Epstein has never once attempted to flee the United States." Dkt. 6 at 1, 12. The Defense proposes what they describe as "a stringent set of [14] conditions that will effectively guarantee [Mr. Epstein's] appearance and abate any conceivable danger he's claimed to present." Id. at 1. The 14 conditions do not include private security guards 24/7. The 14 conditions do include: (1) "Home detention in Mr. Ep- stein's Manhattan residence, with permis- sion to leave only for medical appoint- ments as approved by Pretrial Services, including (at the Court's discretion) the installation of surveillance cameras at the front and rear entrances to ensure compli- ance"; (2) "Electronic monitoring with a Global Positioning System"; (3) "An agree- ment not to seek or obtain any new pass- port during the pendency of this matter"; (4) "Consent to U.S. extradition from any country and waiver of all rights against such [*tradition"; (5) "A substantial [un- specified] personal recognizance bond in an amount set by the Court after review- ing additional information regarding Mr. Epstein's finances...."; (6) "The bond shall be secured by a mortgage on the Manhattan residence, valued at roughly EFTA00066195 U.S. v. EPSTEIN ale as 425 F.Supp-3d 306 (S.D.N.Y. 2019) $77 million. Mr. Epstein's private jet can be pledged as further collateral"; (7) "Mr. Epstein's brother Mark will serve as a co- surety of the bond, which shall be further secured by a mortgage on Mark's home in West Palm Beach, Florida. Mr. Epstein's friend David Mitchell will also serve as a co-surety and pledge his investment inter- ests in two properties to secure the bond"; (8) "Mr. Epstein shall deregister or other- wise ground his private jet"; (9) Mr. Ep- stein "shall demobilize, ground, and/or deregister all vehicles or any other means of transportation in the New York area, providing particularized information as to each vehicle's location;" (10) "Mr. Epstein will provide Pretrial Services and/or the government random access to his resi- dence"; (11) "No person shall enter the residence, other than Mr. Epstein and his attorneys, without prior approval from Pretrial Services and/or the Court"; (12) "Mr. Epstein will report daily by tele- phone to Pretrial Services (or on any oth- er schedule the Court deems appropri- ate)"; (13) "A Trustee or Trustees will be appointed to live in Mr. Epstein's resi- dence and report any violation to Pretrial Services and/or the Court"; (14) "Any oth- er condition the Court deems necessary to reasonably assure Mr. Epstein's appear- ance." Id. at 3.4. The Defense also propos- es as a "fallback" "round-the-clock, pri- vately funded security guards [which] will virtually guarantee - not just reasonably assure - Mr. Epstein's presence in the circumstances of this case." Id. at 10. The bail package originally was not accompa- nied by a financial statement reflecting Mr. Epstein's finances. However, on July 12, 2019, the Defense filed a one-page doc- ument which includes five groups of assets owned by Mr. Epstein totaling $559,120,954. Dkt. 14 at 18. The Government responded to the De- fense motion on July 12, 2019, arguing, among other things, that Mr. Epstein "has 311 a history of obstruction and manipulation of witnesses, including ... as recently as within the past year, when media reports about his conduct [in Florida] reemerged." Dkt. 11 at 1. The Government filing was made against a "backdrop of significant — and rapidly-expanding —evidence, serious charges, and the prospect of a lengthy prison sentence." Id. It contends that the defendant's proposed conditions of release are "woefully inadequate." Id. The Court also received a letter from the Government, dated July 16, 2019, pro- viding, among other things, details about allegedly suspicious payments made by the Defendant in 2018; a Palm Beach, Florida police report; Mr. Epstein's expired Aus- trian passport in another name but with Mr. Epstein's photo; and a pile of cash and diamonds found in Mr. Epstein's safe. For example, the Government says: "[R]ecorcls from Institution -1 show that on or about November 30, 2018, or two days after the series in the Miami Herald began, the defendant wired $100,000 from a trust ac- count he controlled to ..., an individual named as a potential co-conspirator." Dkt. 23 at 1. And, "on or about December 3, 2018, the defendant wired $250,000 from the same trust account to ..., [an individ- ual] who was also named as a potential co- conspirator." Id. at 1.2. According to the Government, the second individual "is also one of the employees identified in the In- dictment, which alleges that she and two other identified employees facilitated the defendant's trafficking of minors by, among other things, contacting victims and scheduling their sexual encounters with the defendant at his residences in Manhat- tan and Palm Beach, Florida." Id. at 2. By letter, dated July 16, 2019, Defense counsel states, among other things, that the Court should reject the idea that "there's literally nothing a person of Ep- stein's means could say, do or pledge to EFTA00066196 312 425 FEDERAL SUPPLEMENT, 3d SERIES rebut the operative presumption and make himself eligible for release." Dkt. 24 at 2. "Epstein contends that * 1591 and the concomitant remand presumption do not contemplate or cover the core conduct at issue here: performing sexual massages for money." Id. at 1.2 n.1. Defense counsel also states that "Epstein certainly recog- nizes the Court's request for further trans- parency and is committed to providing a complete and accurate disclosure. Accord- ingly, we propose that the Court prelimi- narily accept the initial [financial] disclo- sure proffered last Friday and, if intending to rant bail, include a release condition directing Epstein to tender a comprehen- sive forensic accounting of his finances as expeditiously as practicable." Id. at 4. By letters, dated July 16 and July 17, 2019, Defense counsel also submitted informa- tion regarding Epstein's New Mexico sex offender registration status. Defense coun- sel also stated that Epstein traveled exten- sively over the last eight months and "in- variably returned to the to the United States. That inescapable reality emphati- cally proves he won't flee and entitles him to release - on any and all conditions the Court deems appropriate." Id. at 8. C. Indictment A grand jury voted to indict Mr. Epstein on or about July 2, 2019. The Indictment charges Mr. Epstein with two felonies in- volving minor girls some as young as 14. Count I includes conspiracy to commit sex trafficking of minor girls, in violation of 18 U.S.C. § 371, and Count II includes sex trafficking of minor girls, in violation of 18 U.S.C. § 1591. It states: "[F]rom at least in or about 2002, up to and including at least in or about 2005, Jeffrey Epstein, ... en- ticed and recruited, and caused to be en- ticed and recruited, minor girls to visit his mansion in Manhattan, New York ... and his estate in Palm Beach, Florida, ... to engage in sex acts with him, after which he would give the victims hundreds of dollars in cash." Indictment, dated July 2, 2019 ("Indictment"), 'I 2. "Moreover, and in or- der to maintain, and increase his supply of victims, Epstein also paid certain of his victims to recruit additional girls to be similarly abused by Epstein. In this way, Epstein created a vast network of under- age victims for him to sexually exploit in locations including New York and Palm Beach." Id. The Indictment also charges that "the victims ... were as young as 14 years old at the time they were abused by [Mr. Epstein] ... and were, for various rea- sons, often particularly vulnerable to ex- ploitation." Id. II 3. "Mr. Epstein intention- ally sought out minors and knew that many of his victims were in fact under the age of 18, [] because, in some instances, minor victims expressly told him their age." Id. Following his arrest, on Monday, July 8, 2019, Mr. Epstein was arraigned and pre- sented with the Indictment by Magistrate Judge Henry Pittman. D. Legal Principles Governing Release Venus Remand [3-5] Under the Bail Reform Act, 18 U.S.C. § 3142, a Court can order a defen- dant's detention if it determines that the defendant is either (1) a danger to the community or (2) a risk of flight, 18 U.S.C. * 3142(e). A Court does not need to find both bases are proven to order a defen- dant's detention. See id.; United States v. Blanco, 570 F. App'x 76, 78 (2d Cir. 2014). Dangerousness means that the defendant is a "danger to the safety of any other person or the community." 18 U.S.C. § 3142. A finding of dangerousness must be supported by clear and convincing evi- dence. See, e.g., United States v. Ferranti, 66 F.3d 540, 542 (2d Cir. 1995). "Where there is a strong probability that a person will commit additional crimes if released, EFTA00066197 U.S. v. EPSTEIN ale as 423 F.Supp-3d 306 (S.D.N.Y. 2019) the need to protect the community be- comes sufficiently compelling that deten- tion is, on balance, appropriate." United States v. Chimurenga, 760 F.2d 400, 403 (2d Cir. 1985). "[E]ven a single incident of witness tampering ... [may be] sufficient to revoke bail." LaFontaine, 210 F.3d at 134. [6,7] To order detention based upon risk of flight, the Court must find by a preponderance of the evidence that "that no conditions could reasonably assure the defendant's presence at trial." See, e.g., United States v. Jackson, 823 F.2d 4, 5 (2d Cir. 1987); 18 U.S.C. § 3142. "[The consti- tutional limits on a detention period based on dangerousness to the community may be looser than the limits on a detention period based solely on risk of flight. In the former case, release risks injury to others, while in the latter case, release risks only the loss of a conviction." United States v Milan, 4 F.3d 1038, 1048 (2d Cir. 1993) (quoting United States v. Orena, 986 F2d 628, 631 (2d Cir. 1993)). A bail package that "may reasonably assure the appear- ance of [the defendant] at trial will not [necessarily] assure the safety of the com- munity." United States v. Rodriguez, 950 F.2d 85, 89 (2d Cir. 1991). [8] The Bail Reform Act sets forth the following four• factors to be considered in the release/remand analysis: (1) the nature and circumstances of the crime(s) charged; (2) the weight of the evidence against the person; (3) the history and characteristics of the defendant, including the person's character and financial resources; and (4) the seriousness of the danger posed by the defendant's release. 18 U.S.C. § 3142(g). "The weight afforded to each factor under section 3142(g) is within the 'special prov- ince of the district court." United States v. Paulin, 335 F. Supp. 3d 600, 610 (S.D.N.Y. 2018) (quoting United States v. Shaker, 817 F.2d 189, 196 (2d Cir. 1987)). 313 [9] "The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the [release/remand] hear- ing." 18 U.S.C. § 3142(0(2) (emphasis added). For example, the Government is entitled to present evidence supporting remand by way of proffer, among other means. 18 U.S.C. § 3142(0(2); see also United States v. LaFontaine, 210 F.3cl 125, 131 (2d Cir. 2000) ("bail hearings are typically informal affairs, not substitutes for trial or even for discovery"). 18 U.S.C. 3142(O(2)(B) expressly states that the Federal Rules of Evidence do not apply at bail hearings; thus, courts often base detention decisions on hearsay evidence. United States v. Abuhamra, 389 F.3d 309, 321 n.7 (2d Cir. 2004) "District courts [are afforded] wide discretion regarding the scope of such hearings.. .." United States v. Bartok, 472 F. App./. 25, 27 (2d Cir. 2012). E. The Presumption of Remand in 18 U.S.C. * 1591 Cases [10] A 18 U.S.C. § 1591 case involving sexual victimization of a minor is unusual in that it includes a presumption in favor of pretrial detention, reflecting the signifi- cant harm caused by such a crime. 18 U.S.C. § 3142(e)(3)(E). The presumption is that no condition or combination of condi- tions will reasonably assure against flight or danger to the community. United States v. English, 629 F.3d 311, 319 (2d Cir. 2011) (quoting 18 U.S.C. 3142(e)(3XE)). Mr. Epstein may rebut the presumption by "coming forward with evidence that he does not pose a danger to the community or a risk of flight." United States v. Mercedes, 254 F2d 433, 436 (2d Cir. 2001). The Government retains the "ultimate burden of persuasion" that Mr. Epstein presents a danger to the commu- nity (by clear and convincing evidence) EFTA00066198 314 425 FEDERAL SUPPLEMENT, 3d SERIES and that Mr. Epstein presents a risk of flight (by a preponderance of the evi- dence). Id. Even if rebuttal evidence is presented, "the presumption favoring de- tention does not disappear entirely." Id. at 436. "[It] remains a factor to be consid- ered among those weighed by the district court." Id. F. Mr. Epstein Poses a Danger To Others And To the Community [11] The Court begins with "danger- ousness" because that concept is at the heart of this case. It fords that the Govern- ment has shown by clear and convincing evidence that Mr. Epstein threatens the safety of another person and of the com- munity, as follows on pages 10-21: • Victims Have Advised The Court That They Would Fear For Their Safety If Mr. Epstein Were Re- leased Victims have "specifically conveyed" to the Government that any form of release of the Defendant, including home deten- tion with full-time private guards, could "result in [their] harassment and abuse." Did. 11 at 4. At the bail hearing on July 15, 2019, two victims movingly testified about their past sexual encounters with Mr. Epstein when they were minors aged 14 and 16, respectively. 7/1W19 Tr. at 72; see also S. REP. 108-191 ("CVRA Legisla- tive History"), at 22 (In enacting the CVRA, Congress stated that "[V]ictims de- serve the right to be heard at specific points in the criminal justice process," in- cluding bail hearings. "Giving victims a voice not only improves the quality of the process but can also be expected to often provide important benefits to victims."). Ms. Annie Farmer was introduced by her counsel, David Boies, and stated that she was 16 years old when she "had the mis- fortune of meeting Jeffrey Epstein [in] New York." 7/15/19 Tr. at 72. Ms. Farmer said that Mr. Epstein "flew [her] to New Mexico" and was "inappropriate" with her. Id. She was reluctant to go into details about her experience with Mr. Epstein. Id. at 73. Ms. Farmer opposes Mr. Epstein's pretrial release because she believes other Epstein victims would "continu[e] to be victimized" and that Mr. Epstein's wealth and privilege and notoriety would make it difficult for "[other] victims to come for- ward." Id. at 72. Ms. Courtney Wild was introduced by her counsel, Brad Edwards, and said she was "sexually abused by Jeffrey Epstein starting at the age of 14." Id. at 73-74. She asked the Court to "keep [Mr. Epstein] in detention [] for the safety of any other girls out there that are going through what [she's] going through." Id. at 74. Ms. Wild said that Mr. Epstein is a "scary person to have walking the streets." Id. • Mr. Epstein Poses A Threat to Ad- ditional Young Girls If He Is Re- leased At the remand/release hearing on Mon- day, July 15, 2019, as noted, the Court heard poignant testimony from two of Mr. Epstein's alleged victims about their fears and anxiety over his potential release, even if under strict conditions of home confine- ment. The Court is also concerned for new victims. Mr. Epstein's alleged excessive attrac- tion to sexual conduct with or in the pres- ence of minor girls — which is said to include his soliciting and receiving massag- es from young girls and young women perhaps as many as four times a day - appears likely to be uncontrollable. See United States v. Minnici, 128 F. App'x 827, 829-30 (2d Cir. 2005) (defendant's alleged sex crimes were "of an addictive sexual nature that cannot be suppressed simply by a restrictive set of bail conditions"). EFTA00066199 U.S. v. EPSTEIN ale as 423 F.Suppld 306 (S.D.N.Y. 2019) Accordingly, Mr. Epstein's past sexual conduct is not likely to have abated or been successfully suppressed by fierce de- termination, as his Defense Counsel sug- gests. Defense Counsel contends that. "[H]e wasn't a predator that couldn't con- trol his conduct. He disciplined himself." 7/15/19 Tr. at 31-32. Defense Counsel also argues that "appreciating the gravity of these charges ... putting aside the age of these witnesses and putting the consent issue aside, it's not like [Epstein is] an out- of-control rapist." 7/15/19 'Pr. at 36. It seems fair to say that Mr. Epstein's future behavior will be consistent with past be- havior, including the trove of "lewd photo- graphs of young-looking women or girls," which were recently uncovered during the July 6-7, 2019, search of Mr. Epstein's East 71st Street mansion. See Dkt. 11, Ex. 1 at 9. The search results suggest the "possibility that defendant could target an- other vulnerable victim." See United States v. Baker, 349 F. Supp. 3d 1113, 1135 (D.N.M. 2018) (where the defendant was alleged to specifically target "vulnerable women" and where he attempted to con- tact an alleged victim, the court was pet suaded that the defendant "would be a danger to society if released"). Despite having been convicted of the above mentioned (two) Florida sex crimes (in 2008) involving an underage girl, Mr. Epstein, as noted, maintained at his New York residence a "vast trove" of sexually suggestive photographs of nude underage and adult girls. Dkt. 11, Ex. 1 at 9. That is, during the July 6.7, 2019 authorized search of Mr. Epstein's NYC residence, the FBI found a "substantial collection of photo- graphic trophies of his victims and other young females." Dkt. 11 at 10. This evi- dence includes compact discs labeled "Young [Redacted Name] + [Redacted Name]," "Misc nudes 1," and Girl pies nude." Id. The Government contends that this evidence includes hundreds or perhaps 315 thousands of "sexually suggestive photo- graphs" of nude underage girls and wom- en, and that it is corroborative in nature. Id. And, it is consistent with victim recol- lections of the inside of Mr. Epstein's resi- dence. Dkt. 11, Ex. 1 at 9. This newly discovered evidence also suggests that Mr. Epstein poses "ongoing and forward-look- ing danger." See Dkt. 11 at 10; see also Baker, 349 F. Supp. 3d at 1135; United States v. Goodwin, 2015 WL 6386568, at *3 (W.D. Ky. Oct. 21, 2015). • The § 1591 Presumption Of Pre- trial Remand Reflects The Seri- ousness Of Mr. Epstein's Alleged Crimes The significant harms and dangers of sex crimes involving minors "animated Congress to create the statutory presump- tion of detention." United States v. Hardy, 2019 WL 2211210, at *10 (D.D.C. May 22, 2019). The presumption of remand "re- flects Congress's substantive judgment that particular classes of offenders should ordinarily be detained prior to trial." Unit- ed States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010). Other serious offenses that are accompanied by the presumption of re- mand are: Kidnapping (18 U.S.C. § 1201); Aggravated Sexual Abuse (18 U.S.C. § 2241); Sexual Abuse (18 U.S.C. § 2242); Offenses Resulting in Death (18 U.S.C. § 2245); Sexual Exploitation of Children (18 U.S.C. § 2251); Selling or Buying of Children (18 U.S.C. § 2251); Production of Sexually Explicit Depictions of a Minor for importation into the United States (18 U.S.C. § 2260); Coercion and Enticement (18 U.S.C. § 2422); Transport of Minors (18 U.S.C. § 2423); Use of Interstate Facil- ities to Transmit Information About a Mi- nor (18 U.S.C. § 2425). 18 U.S.C. 3142(e)(3XE). (121 The presumption of remand does not disappear even when rebutted. Martir, EFTA00066200 316 425 FEDERAL SUPPLEMENT, 3d SERIES 782 F.2d at 1144. If the defendant comes forward with evidence that he will not endanger the community or flee the juris- diction, the presumption "is not erased." See United States v. Dominguez, 783 F2d 702, 707 (7th Cir. 1986). "Rather, the pre- sumption remains in the case as an eviden- tiary finding militating against release, to be weighted along with other evidence." United States v. Hir, 517 F.3cl 1081, 1086 (9th Cir. 2008); see also Martir, 782 F2d at 1144 ("The concern underlying the pre- sumption applies to the general class of defendants charged with one of the speci- fied offenses—not merely to defendants who fail to produce rebuttal evidence. Were the presumption ... to vanish upon any showing ..., courts would be giving too little deference to Congress' findings regarding this class) (emphasis in original). • The US. Pretrial Services Depart- ment Recommends To The Court That Mr. Epstein Continue to Be Remanded The Pretrial Services report, dated July 8, 2019, concludes, following Pretrial Ser- vices' interview of Mr. Epstein, that "[t]here is no condition or combination of conditions that [can] reasonably assure ... the safety of the community" if Mr. Ep- stein is released. Pretrial Services Report, dated July 8, 2019, at 4. Pretrial Services also concluded that Mr. Epstein is a flight risk and recommends that he be detained for that reason as well. Id. In support of its assessment of Mr. Ep- stein's dangerousness, Pretrial Services cites the following: the "Nature of [Mr. Epstein's currently charged] Instant Of- fence," i.e., sex trafficking and conspiracy involving minor girls; Mr. Epstein's "Prior I. Mr. Epstein is reported to have remarked that: "I'm not a 'sexual predator,' I'm an 'offender' ... Its the difference between a murderer and a person who steals a bagel." Arrests," ems., in Florida in 2006; Mr. Ep- stein's "History [and] Conviction Involving [a] Sex [Offense]," which principally refers to Defendant's 2008 conviction(s) for pro- curing a person under the age of 18 for prostitution (a felony) and for solicitation of prostitution (also a felony); Mr. Ep- stein's status as a registered sex offender in New York, Florida and the Virgin Is- lands; and Mr. Epstein's "Pattern of Simi- lar Criminal Activity History." Id. • The Seriousness Of The Crimes That Mr. Epstein Has Been Charged With Is Also Reflected In The Fact That The Crimes Involve Minor Children Mr. Epstein is said by the Government to be "a serial sexual predator" who alleg- edly victimized dozens (or more) of minor girls, including a 14 year• old.' He was involved in and undertook the alleged sex- ual activity in several locations, including, his mansion in Manhattan and his estate in Palm Beach, Florida. Indictment tl 2. By "actively encourage[ing] certain of his [mi- nor] victims to recruit additional girls to be similarly sexually abused," Mr. Epstein is said to have "created a vast network of underage victims for him to exploit" Dkt. 11, Ex. 1 at 2. The Government alleges that Mr. Ep- stein "intentionally sought out—and knew that he was abusing—minors. Indeed, in some instances, his victims expressly told him they were underage before or during the period in which he abused them." Id. The crimes with which Mr. Epstein is charged carry a maximum sentence of 45 years of incarceration. Id. at 5. "[T]he deprivation of liberty imposed by impris- onment makes that penalty the best indi- Amber Southerland, Billionaire Jeffrey Ep- stein: I'm a sex offender, not a predator, New York Post. Feb. 25. 2011. EFTA00066201 U.S. v. EPSTEIN Chess425 F.Supp.34 306 (S.D.N.Y. 2019) cator of whether the legislature considered an offense to be ... `serious." United States v. Dugan, 667 F.3d 84, 86 (2d Cir. 2011) (quoting Lewis v. United States, 518 U.S. 322, 326, 116 S.Ct. 2163, 135 L.Ed2d 590 (1996)). And, the crimes Mr. Epstein has been charged with are among the most heinous in the law principally, in the Court's view, because they involve minor girls. 18 U.S.C. § 3142 (e)(3)(E); see also Roger Przybylski, Chapter 5: Adult Sex Offender Recidivism, Sex Offender Management Assessment and Planning Initiative ("[R]esearchers widely agree that ob- served recidivism rates are underesti- mates of the true reoffense rates of sex offenders. Hidden offending presents sig- nificant challenges for• professionals work- ing in sex offender management as it is difficult to know whether offenders who appear to be nonrecidivists based on offi- cial records are truly offense free.") (em- phasis in original). • Mr. Epstein Or His Representa- tives Have Intimidated, Threat- ened, And/Or Made Payments To Potential Witnesses The Government's evidence includes: (i) Florida police reports describing harass- ment and intimidation of witnesses in- volved in the Florida state criminal investi- gation of Mr. Epstein in 2006, and (ii) emails, dated September 13, 2007 and Sep- tember 19, 2007 (attached hereto), from Mr. Epstein's former counsel to Federal prosecutors in Florida discussing the "op- tion" of Mr. Epstein pleading guilty to witness tampering, harassment, and/or ob- struction of justice. A Palm Beach Police Incident Report, dated July 19, 2006, states that one of Mr. Epstein's victims reported that Mr. Ep- stein's representative said to her: "Those who help [Mr. Epstein] will be compen-317 sated and those who hurt [Mr. Epstein] will be dealt with." Dkt. 11, Ex. 3 at 2 (emphasis added.) The Report also states: "[Mr. Epstein's representative] assured [the victim that] she would receive mone- tary compensation for her assistance in not cooperating with law enforcement." Id. An- other (undated) Palm Beach Police Inci- dent Report states that the parent of one of Mr. Epstein's alleged victims contacted the Palm Beach Police to report that Mr. Epstein's private investigator had aggres- sively driven the parent's car off the road. Dkt. 11, Ex 2 at 1. This same Report states that the parent of another victim reported being "followed aggressively" by Mr. Epstein's private investigator. Id. The Government contends that these re- ports together "suggest that an associate of Epstein's was offering to buy victims' silence during the course of the prior in- vestigation," and demonstrate Mr. Ep- stein's "willingness to use intimidation and aggressive tactics in connection with a criminal investigation." Dkt. 11 at 11. The Government also submits e-mail ev- idence (attached to this Order as Exhibit 1) of plea discussions in 2007 between Florida federal prosecutors and Mr. Ep- stein's attorneys that confirm that Mr. Ep- stein considered pleading guilty to witness tampering, harassment and/or obstruction of justice in a case involving alleged sex crimes with minor girls. On September 13, 2007, prosecutors wrote to Mr. Epstein's counsel that they have been "spending some quality time ... looking for misde- meanors [that Mr. Epstein could plead guilty to]," including 18 U.S.C. § 1512(d), a Federal witness tampering statute (a felo- ny) and 18 U.S.C. § 403, a Federal statute criminalizing the violation of the privacy protection of child victims and child wit- nesses (a misdemeanor). Doe v. United States, 08 Civ. 80756, (S.D. Fla.), Dkt. 361- 11. Epstein's counsel replied: "Already EFTA00066202 318 425 FEDERAL SUPPLEMENT, 3d SERIES thinking about the same statutes." Id. On September 18, 2007, a Federal prosecutor told Mr. Epstein's counsel that if Mr. Ep- stein pled guilty to obstruction of justice, the factual proffer "could rely on the inci- dent where Mr. Epstein's private investi- gators followed [a victim's] father, forcing [him] off the road." Id., Dkt. 361-10; see also supra p. 15. On September 19, 2007, Mr. Epstein's counsel proposed that Mr. Epstein admit that he verbally harassed victims or the family of victims in connec- tion with his "attempt to delay their volun- tary receipt of process" in a civil action against Mr. Epstein, in violation of a Fed- eral witness tampering statute. Doe Dkt. 361-9. And, the Government has recently con- tended that, on November 28, 2018 and on December 3, 2018 - very soon after the publication of a 3-part investigative report in the Miami Herald (authored by Julie K. Brown) relating to Mr. Epstein's Florida Non-Prosecution Agreement dated Sep- tember 24, 2007 - Mr. Epstein paid $100,000 to "a company founded and run by [Individual 1]," and he paid $250,000 to [Individual II]. Dkt. 23 at 1. The Govern- ment states that Individual I was "a poten- tial coconspirator—[ for whom Epstein obtained protection in [] the NPA." Id. Individual I was named and featured prominently in the Miami Herald. See• Julie K. Brown, "Even From Jail, Sex Abuser Manipulated The System. His Vic- tims Were Kept in The Dark, Miami Her- ald, Nov. 28, 2018. The Government states that Individual II was also "a potential co-conspirator—[ ] for whom Epstein also obtained protection in [ the NPA." Dkt. 23 at 2. She is "one of the employees identified in the Indictment, which alleges that she and two other iden- tified employees facilitated the defendant's trafficking of minors by, among other things, contacting victims and scheduling their sexual encounters with the defendant at his residences in Manhattan and Palm Beach, Florida." Id. at 2. Individual II was also named and featured prominently in the Miami Herald report. The Government states there is good reason to infer that Mr. Epstein was at- tempting to "influence [these two] individ- uals who were close to him during the time period charged in this case and who might be witnesses against him at a trial." Dkt. 11 at 11. "Neither of these payments ap- pears to be recurring or repeating during the approximately five years of bank rec- ords presently available to the Govern- ment. This course of action, and in particu- lar its timing, suggests the defendant was attempting to further influence co-conspir- ators who might provide information against him in light of the recently re- emerging allegations." Id. A court may order detention if there is a serious risk that the defendant will at- tempt to threaten, injure, or intimidate a prospective witness or juror. 18 U.S.C. § 3142(f)(2)(B). Even a single incident of witness tampering has been a "traditional ground for pretrial detention by the courts." LaFontaine 210 FM at 132-34 (affirming then-U.S. District Judge Mi- chael B. Mukasejs denial of bail to a defendant who had met with a prospective witness in an effort to persuade the wit- ness to give untruthful testimony and where there was "no evidence of influence, harassment or intimidation"); see also United States v. Singh, 2012 WL 3260232, at *3 (E.D.N.Y. Aug. 8, 2012). • Mr. Epstein Has Not Always Been Compliant With His Legal Obli- gations As A Registered Sex Of- fender Defense counsel has contended that Mr. Epstein has been "scrupulously fulfilling] his obligations in every jurisdiction in EFTA00066203 U.S. v. EPSTEiN ale as 425 F.Supp-341 306 (S.D.N.Y. 2019) which he was required to register [as a sex offender]," since his 2008 Florida convic- tions. Counsel argues that this shows that he "is no longer a danger to anyone and will faithfully obey all conditions of release if ordered." Dkt. 6 at 3. The record shows that Mr. Epstein has challenged his sex offender "level" in at least one jurisdiction since 2008 in an ef- fort to minimize his reporting obligations. And, one recent press account states that Epstein is not in compliance in New York State. See Elizabeth Rosner, Tina Moore, Larry Celona, and Bruce Golding, NYPD let convicted pedophile Jeffi•ey Epstein skip judge-ordered check-in, New York Post, July 10, 2019 ("July 10, 2019 NY Post Article") ("Jeffrey Epstein never once checked in with City cops in eight-plus years since a Manhattan judge ordered him to do so every 90 days"). Mr. Epstein is a Level III sex offender in New York State which is the highest category of risk to reoffend. This designa- tion requires that Mr. Epstein report his presence in New York to law enforcement authorities every 90 clays. As discussed at the July 15, 2019 bail hearing, counsel for Mr. Epstein made an application in New York State Supreme Court in 2011 to re- duce Epstein's sex offender registration status from Level III to Level I. If grant- ed, this reduction would have allowed Mr. Epstein to avoid his reporting obligations. In a Sex Offender Registration Act Hear- ing on January 11, 2018, held before the Honorable Ruth Pickholz, Mr. Epstein's application was (firmly) denied, principally because it had been established by the Board of Examiners of Sex Offenders. See People v. Epstein, Indict. # 30129/2010, (N.Y. Sup. Ct.), SORA Hearing Transcript, dated Jan. 18, 2011. At the hearing, New York County Assis- tant District Attorney Jennifer Gaffney joined in Defense Counsel's appeal to re-319 view and overturn the decision of the Board of Examiners of Sex Offenders and achieve a downward modification of Mr. Epstein's sex offender status. Id. at 2-15. Judge Pickholz appeared to be stunned by the joint Defense Counsel/District Attor- ney application, stating: "I am just a little overwhelmed that the People are making this application.. .. I have done many SORAs much less troubling than this one where the People would never make a downward [adjustment] argument like this.... I have never seen the prosecu- tor's office do this. I have to tell you, I am shocked." Id. at 4-5. Judge Pickholz also ordered Mr. Epstein to report as a Level III sex offender every 90 days in New York. Id. at 12. "I am sorry [Mr. Epstein] may have to come here every 90 days. He can give up his New York home [on East 71st St.] if he does not want to come every 90 days." Id. Epstein appealed but Judge Pickholz's decision was unanimously af- firmed, on November 17, 2011, by a panel of five judges of the Appellate Division of the New York State Supreme Court. Peo