Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 1 of 14

Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE #1 and JANE DOE #2, petitioners, VS. UNITED STATES OF AMERICA, respondent. FILED by D.C. JUN 1 8 2013 STEVEN ht. LARNOFIE CL ERK U S DIST L.T S. D. of FIA - WILL— ORDER DENYING GOVERNMENT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION & ORDER LIFTING STAY OF DISCOVERY THIS CAUSE is before the court on the government's motion to dismiss for lack of subjcct matter jurisdiction [DE 119], the petitioners' response in opposition [DE 127) and the government's reply [DE 147]. For reasons stated below, the court has determined to deny the motion. I. Preface The petitioners in this action seek to vacate a "non-prosecution agreement" ("the agreement") between the United States Attorney's Office for the Southern District of Florida (USAO/SDFL) and Jeffrey Epstein (Epstein) pursuant to the Crime Victims' Rights Act of 2004 (CVRA), 18 U.S.C. §3771. Under the agreement, Epstein agreed to (1) plead guilty to two then pending state court charges, solicitation of prostitution and solicitation of minors to engage in prostitution (a charge requiring him to register as a sex offender), in violation of Fla. Stat. §§796.07 and 796.03 and (2) make a binding recommendation for an eighteen-month sentence in county jail followed by twelve months of community control. In exchange for Epstein's performance, the USAO/SDFL agreed to (1) defer prosecution of related federal offenses against Epstein which had been EFTA00177793 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 2 of 14 investigated by the Federal Bureau of Investigation (FBI)1 in favor of prosecution by the State of Florida and (2) refrain from instituting criminal charges against certain alleged co-conspirators of Epstein. Further, the USAO/SDFL and Epstein expressed their "anticipat[ion]" that the "agreement will not be made part of any public record. " Additionally, the USAO/SDFL promised to provide Epstein advance notice before disclosing the agreement in response to a Freedom of Information Act request or compulsory process commanding disclosure [DE 48-5, pp. 2-15]. II. Factual Background As outlined in their CVRA petition and supplemental pleadings filed in this action, petitioners allege the following sequence of events, which the court assumes to be true at the motion to dismiss stage:2 1. In 2006, the Federal Bureau of Investigation opened an investigation into allegations that Epstein had been inducing minor females to engage in commercial sexual activity over the preceding five year period of time. The United States Attorney's Office for the Southern District of Florida accepted the case for prosecution, and in June, 2007 and August, 2007, the FBI issued standard The agreement enumerated certain federal offenses which the FBI and the United States Attorney's Office determined may have been committed by Epstein between 2001 through 2007, including conspiracy to use and the use of facilities of interstate commerce to persuade, induce or entice minor females to engage in prostitution in violation of 18 U.S.C. §2422(b); conspiracy to travel and travel in interstate commerce for purpose of engaging in illicit sexual conduct with minor females in violation of 18 U.S.C. § 2423(b); knowingly recruiting, enticing and obtaining persons under the age of eighteen years to engage in commercial sex acts in violation of 18 U.S.C. §1591(a)(1). 2 See Cole v. United States, 755 F.2d 873 (1 Ii' Cir. 1985)(in reviewing motion to dismiss for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b), reviewing court must assume as true all "factual" allegations in the complaint). 2 EFTA00177794 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 3 of 14 victim notification letters to the petitioners Jane Doe No. I and Jane Doe No. 2. 2. On September 24, 2007, the USAO/SDFL entered into the above-described non- prosecution agreement with Epstein without first conferring with petitioners, and without alerting them to the existence of the agreement either before or promptly after the fact.' Petitioners claim they were kept in the dark about the agreement for roughly nine months - with no mention of the federal deal made in intervening correspondence and verbal communications between petitioners, the FBI and the local United States Attorney's Office?' 3. On June 27, 2008, the Assistant United States Attorney assigned to the Epstein case contacted petitioners' counsel to advise that Epstein was scheduled to plead guilty to certain state court charges on June 30, 2008, without mentioning that the anticipated plea in the state court was a term of the pre-existing non-prosecution agreement with the federal authorities. 4. On July 3, 2008, petitioners' counsel sent a letter to the USAO/SDFL advising that Janc 'The government appears to concede the non-conferral, stating in its reply brief: While it may be true that the USAO-SDFL did not in form Petitioners and confer with them about the Non-Prosecution Agreement before it signed that agreement, the USAO-SDFL had conferred with both of the Petitioners about the potential prosecution of Epstein and was aware that Jane Doe #1 wished to see Epstein prosecuted and that, at that time, Jane Doe #2 had expressed open hostility toward any prosecution of Epstein. [DE 147, page 31]. 4 The post-agreement communications arc alleged to include a May 30, 2008 letter from the USAO/SDFL to a recognized victim advising that the case "is currently under investigation" and that "it can be a lengthy process and we request your continued patience while we conduct a through investigation." In addition, the USAO/SDFL allegedly sent a letter to the victims' counsel in June, 2008, asking them to submit a letter expressing the victims' views on why federal charges should be filed against Epstein -- without mentioning that the USAO/SDFL had already entered into the non-prosecution agreement. 3 EFTA00177795 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 4 of 14 Doe No. 1 wished to see federal charges brought against Epstein. III. Procedural History 5. On July 7, 2008, Jane Doe No. I filed an "emergency" petition under the CVRA, contending that Epstein was currently involved in plea negotiations with the USAO/SDFL, which "may likely result in a disposition of the charges in the next several days." [CVRA Petition, DE 1, 13]. Claiming to be wrongfully excluded from those discussions, Jane Doe 1 asserted the violation of her CVRA rights to confer with federal prosecutors; to be treated with fairness; to receive timely notice of relevant court proceedings and to receive information about her right to restitution. As relief, she requested entry of an injunction directing the United States Attorney's Office to "comply with the provisions of the CVRA prior to and including any plea or other agreement with [Epstein] and any attendant proceedings." 6. On July 9,2008, the government filed its response, disclaiming application of the CVRA to pre-charge negotiations with prospective defendants. Alternatively, the government contended it did use its "best efforts" to comply with CVRA notice and conferral requirements in its dealings with Jane Doe 1. 7. On July 11, 2008, the court entertained a hearing on the initial petition. During the course of that proceeding, the court allowed an amendment of the petition to include Jane Doe No. 2 as a complainant. The government acknowledged at that time that both petitioners met the definition of "crime victims" under the CVRA. 4 EFTA00177796 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 5 of 14 8. Over the course of the next eighteen months, the CVRA case stalled as petitioners pursued collateral civil claims against Epstein. The CVRA case was administratively closed on September 9, 2010, and then re-opened at petitioners' request on October 28, 2010. Since then, petitioners have submitted a "Motion for Finding of Violations of the CVRA" and a supporting statement of facts [DE 48]. 9. On September 26, 2011, the court entered its order partially granting the petitioners' motion for a finding of violations of the CVRA, recognizing that the CVRA can apply before formal charges are filed against an accused. The court deferred ruling on the merits of the motion pending development of a full factual record, and authorized petitioners to conduct limited discovery in the form of requests for production of documents and requests for admissions directed to the U.S. Attorney's Office, with leave for either party to request additional discovery as appropriate [DE 99]. 10. On November 8, 2011, the government moved to dismiss the entire CVRA proceeding for lack of subject matter jurisdiction [DE 119], and successfully sought a stay of discovery pending resolution of that motion [DE 121, 123]. In its current motion to dismiss, the government first contends that "even assuming that the CVRA was violated as petitioners claim, petitioners lack standing to seek redress for those violations" because the remedy petitioners seek- - a vacating or re-opening of the non-prosecution agreement — is not a legally viable option at this juncture. Alternatively, the government argues that petitioners' CVRA claims are not "constitutionally ripe" because petitioners have a present ability to confer with prosecutorial authorities in other jurisdictions, namely the United States Attorney's Offices of the District of New Jersey and New York, which share jurisdiction and venue over the federal offenses potentially chargeable against 5 EFTA00177797 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 6 of 14 Epstein for crimes committed in this District. Thus, the government asserts that it is premature and speculative for petitioners to bring a claim for the prospective denial of CVRA conferral rights, rendering their current claims constitutionally unripe. These arguments are addressed, in turn, in the discussion which follows. IV. Discussion "[T]he core component of standing is an essential and unchanging part of the case-or- controversy requirement of Article III." Lujant Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992). To satisfy Article Ill's minimum standing requirements, a plaintiff must generally show (1) it has suffered an injury in fact — i.e. the invasion of a legally protected interest that is concrete and particularized, as well as actual or imminent; (2) the injury is fairly traceable to the challenged action of the defendant, and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Id. at 560-561. Here, the government contends petitioners arc unable to satisfy the third prong of this test on the theory it is legally impossible for petitioners to obtain the relief which they seek - the vacating of the non-prosecution agreement as a predicate to the full and unfettered exercise of their CVRA conferral rights — and that they are therefore unable to show a likelihood that the CVRA injury alleged will be redressed by a favorable decision in the case. More specifically, the government contends that rescission of an otherwise valid plea or non-prosecution agreement (i.e. an agreement containing no illegal terms or conditions) is prohibited by constitutional Due Process guarantees - even if entered in violation of the CVRA. Alternatively, the government argues that even if the court could set the agreement aside and order the government to confer with petitioners before arriving at a final prosecutorial decision regarding Epstein, the gesture would be futile. The 6 EFTA00177798 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 7 of 14 government claims that the United States Attorney's Office for the Southern District of Florida would still be legally bound to abide by the terms of the September 24, 2007 agreement,' eliminating the possibility that exercise of petitioners' conferral rights under the CVRA might lead to a different federal charging outcome. The court disagrees. As a threshold matter, the court finds that the CVRA is properly interpreted to authorize the rescission or "re-opening" of a prosecutorial agreement - including a non-prosecution arrangement — reached in violation of a prosecutor's conferral obligations under the statute. Clearly, the statute contemplates such a result where, under the "enforcement and limitations" provision, § 3771(d)(5), the conditions under which "[a) victim may make a motion to re-open a plea or sentence" in order to remedy a failure to afford a right provided under the CVRA arc specifically prescribed. If the government's theory was correct, i.c. that no otherwise valid plea may be disturbed, notwithstanding a CVRA violation, as a matter of constitutional due process guarantees -- the statutory prescriptions for "re-opening" a plea or sentence reached in violation of the CVRA would effectively be nullified. The court will not embrace such a strained construction of the statute. 5 The government acknowledges that the USAO/SDFL has been recused by the Department of Justice for prospective responsibility of any further criminal investigation or potential prosecution of Epstein relating to his alleged sexual activities with minor females in the Southern District of Florida, and that responsibility for any future prosecutorial action arising out of Epstein's alleged criminal activity in this district has now been assigned to the United States Attorney's Office for the Middle District of Florida [Government Motion to Dismiss, page 8, n. 8][DE 119). However, it contends, without explanation, that the September 24, 2007 non-prosecution agreement would still constrain the Middle District of Florida United States Attorney's Office "due to that office's recusal- based derivative prosecutorial responsibilities in the Southern District of Florida" [Government Motion to Dismiss, page 12, n. 13][DE 119). 7 EFTA00177799 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 8 of 14 Although this particular statutory enforcement provision expressly refers to the re-opening of a "plea" or "sentence"— events falling in the post-charge stage of criminal proceedings —the court concludes that the statute is properly interpreted impliedly to authorize a "re-opening" or setting aside of pre-charge prosecutorial agreements made in derogation of the government's CVRA conferral obligations as well. First, the court concludes that the "reasonable right to confer... in the case "guaranteed by the CVRA at §3771(a)(5) is properly read to extend to the pre-charge stage of criminal investigations and proceedings, certainly where -- as here-- the relevant prosecuting authority has formally accepted a case for prosecution. The case law and legislative history of the statute support such an expansive reading of the statutory mandate. See United States v. BP Products North America, Inc., 2008 WL 501321 at * 11-15 (S.D. Tex. 2008)(unpub), citing I50 Cong. Rec. S2460, 54268 (daily ed. Apr 22, 2004)(statement of Senator Feinstein)(explaining that the right to confer was "intended to be expansive," applying to "any critical state or disposition of the case") and United States v. Heaton, 458 F. Supp. 2d 1272 (D. Utah 2006)(government motion to dismiss charge of using facility of interstate commerce to entice minors to engage in unlawful sexual activity would not be granted until government consulted with victim); United States v. Ingrassia, 2005 WL 2875220 at *17 n. 11 (Senate Debate supports view that contemplated mechanism for victims to obtain information on which to base their input was conferral with prosecutor concerning anycritical stage or disposition of the case), and United States Department of Justice, Attorney General Guidelines for Victim and Witness Assistance 30 (2005X"Responsible officials should make reasonable efforts to notify identified victims of, and consider victims' views about, prospective plea negotiations.") 8 EFTA00177800 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 9 of 14 In short, there is no logical reason to treat a "non-prosecution agreement" which the government employs to dispose of contemplated federal charges any differently from a "plea agreement" employed to dispose of charged offenses in interpreting remedies available under the CVRA. Where the statute expressly contemplates that a "plea" may be set aside if entered in violation of CVRA conferral rights, it necessarily contemplates that a "non-prosecution" agreement may be set aside if entered in violation of the government's conferral obligations. Thus, in their petition and supplemental pleadings, Jane Doe 1 and 2 have identified a remedy which is likely to redress the injury complained of— the setting aside of the non-prosecution agreement as a prelude to the full unfettered exercise of their conferral rights at a time that will enable the victims to exercise those rights meaningfully. See BP Products North America, supra at *14 ("Section 3771(c)(1) requires government officials to use best efforts to give victims notice of their rights under subsection (1), including the right to confer, at a time that will enable the victims to exercise these rights meaningfully"). Thus, petitioners do not lack constitutional standing because of an inability to identify a remedy for their alleged injury. Nor is the court persuaded by the government's "futility" argument, derived from its stated perception that the United States Attorney's Office for the Southern District of Florida (and derivatively the United States Attorney's Office for the Middle District of Florida) would be constrained to honor the terms of the September 24, 2007 agreement even if the court were to set it aside and order the government to confer with the victims before reaching a final charging decision. 9 EFTA00177801 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 10 of 14 The fallacy with this strand of the government's standing argument derives from its misidentification of the alleged injury sought to be remedied in the case: The victims' CVRA injury is not the government's failure to prosecute Epstein federally — an end within the sole control of the government. Rather, it is the government's failure to confer with the victims before disposing of contemplated federal charges. This injury can be redressed by setting aside the agreement and requiring the government to handle its disposition of the Epstein case in keeping with the mandates of the CVRA, including the pre-charge conferral obligations of the government. The court rejects the notion that a victim must show the likelihood or at ►east a possibility of a prosecution as a pre- requisite to demonstrating standing for redress of conferral rights under the CVRA - which is the fundamental premise of the government's futility argument. What the government chooses to do after a conferral with the victims is a matter outside the reach of the CVRA, which reserves absolute prosecutorial discretion to the government. 18 U.S.C. §3771 (d)(6)("Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction"). While the law of standing does require, as a general proposition, that a federal plaintiff show some logical nexus between the asserted injury and the claim sought to be adjudicated (i. e. a likelihood that the relief sought is likely to vindicate the injury), Linda R.S. v. Richard D., 410 U.S. 614, 93 S. Ct. 1146, 35 L.Ed. 2d 536 (1973), these requirements apply only in the absence of a statute expressly conferring standing. Id. at 617 n. 3 ("0 Congress may enact statutes creating leal rights, the invasion of which creates standing, even though no injury would exist without the statute"), citing Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 212, 93 S. Ct. 364, 368, 34 L.Ed. 2d 415 (1972). It is apparent, through the passage of the CVRA, that Congress has enacted 10 EFTA00177802 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 11 of 14 a statute expressly conferring certain legal rights upon "crime victims," the invasion of which creates standing to seek relief under the CVRA, even though no cognizable injury would exist without the statute. It is also apparent that the petitioners in this case meet the definition of "crime victims" conferred with standing to assert the subject CVRA claims. The CVRA at §3771(e) defines a "crime victim" as " a person directly and proximately harmed as a result of the commission of a Federal offense." In the Eleventh Circuit, a two-part test is employed to determine whether an individual qualifies as a crime victim under this statute: First, the court must identify the behavior constituting the "commission of a Federal offense." Second, the court must identify the direct and proximate effects of that behavior on parties other than the United States. In re Stewart, 552 F.3d 1285 (11th Cir. 2008). If the criminal behavior causes a party direct and proximate harmful effect, the party is considered a victim under the CVRA. Id at 1288. The non-prosecution agreement at issue refers to five distinct federal sex offense crimes involving minors contemplated against Epstein, the direct and proximate harmful effects of which were allegedly visited upon the petitioners, plainly qualifying them as crime victims within the meaning of the CVRA. As such, they have standing to assert rights under the CVRA, as they have done in this case. See e.g. United States v. Thetford, F. Supp. 2d , 2013 WL 1309851 (ND. Ala. 2013). Presented with these claims, the court is obligated to decide whether, as crime victims, petitioners have asserted valid reasons why the court should vacate or re-open the non- prosecution agreement reached between Epstein and the USAO/SDFL. Whether the evidentiary proofs will entitle them to that relief is a question properly reserved for determination upon a fully 11 EFTA00177803 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 12 of 14 developed evidentiary record. 6 In sum, the petitioners' standing is expressly conferred by the CVRA, which limits its protections to "crime victim(s)," defined as "person[s] directly and proximately harmed as a result of the commission of a Federal offense ..." 18 U.S.C. §3771(e). The court finds and the government does not dispute that petitioners are persons "directly and proximately harmed" as the result of federal offenses allegedly committed by Epstein. This concludes the proper confines of the standing inquiry. 6 Recognizing the need for a developed evidentiary record, the court accordingly rejects the government's related "estoppel" argument as an independent attack on petitioners' constitutional standing to sue. In this vein, the government argues that the petitioners are legally precluded from seeking rescission of the non-prosecution agreement under any scenario because they had, but forfeited, an opportunity to press for rescission at an early stage in these CVRA proceedings -- before Epstein performed his part of the bargain (i.e. before he served jail time on the two state charges). Due to petitioners' counsel's initial "indecision" on whether to seek rescission, as expressed at an earlier hearing held in August 2008, the government argues that "[e]ven assuming arguendo that the CVRA would allow a victim to seek rescission of a non- prosecution agreement between the government and an uncharged individual, petitioners' action would legally preclude them from obtaining such a remedy in these proceedings." Whether petitioners are estopped from seeking vindication of their CVRA conferral rights via the vehicle of rescission or a "re-opening" of the non-prosecution agreement due to an earlier litigation posture assumed in this case-- as the government contends -- implicates a fact-sensitive equitable defense which must be considered in the historical factual context of the entire interface between Epstein, the relevant prosecutorial authorities and the federal offense victims — including an assessment of the allegation of a deliberate conspiracy between Epstein and federal prosecutors to keep the victims in the dark on the pendency of negotiations between Epstein and federal authorities until well after the fact and presentation of the non-prosecution agreement to them as a fait accompli. As with threshold questions going to the existence of the alleged CVRA violations, questions pertaining to this equitable defense are properly left for resolution after development of a full evidentiary record. 12 EFTA00177804 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 13 of 14 B. Ripeness The "ripeness doctrine," under which a plaintiff lacks standing if his claim is not ripe, aims to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies. Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013); Brennan v. Roman Catholic Diocese of Syracuse New York, Inc., 322 Fed. Appx. 852, 2009 WL 941765 (11* Cir. 2009)(unpub). In this case, the government contends that the petitioners' CVRA conferral claims are not constitutionally ripe because petitioners do not allege they have sought and have been denied conferral with all federal prosecutorial authorities having potential jurisdiction over Epstein's federal sex crimes in the Southern District of Florida. Specifically, the government argues that the United States Attorney's Office of the Districts of Ncw Jersey and New York share jurisdiction with the United States Attorney's Office for the Southern District of Florida over federal sex offenses allegedly committed by Epstein in the Southern District of Florida, and that petitioners' CVRA conferral claims are not ripe unless and until all other relevant prosecutorial authorities refuse or fail to confer with them regarding federal offenses chargeable against Epstein. The court summarily rejects this argument. Petitioners have alleged a violation of their CVRA conferral rights against a federal prosecutorial authority which formally accepted the case against Epstein for prosecution. Whether conferral rights do or do not exist with prosecutorial authorities in some other jurisdiction does not detract from the ripeness of this claim against a local federal prosecutorial authority which did actively investigate potential charges against Epstein in this district and formally resolved those charges with the challenged non-prosecution agreement at 13 EFTA00177805 Case 9:08-cv-80736-KAM Document 189 Entered on FLSD Docket 06/19/2013 Page 14 of 14 issue in this action. III. Conclusion Based on the foregoing, it is ORDERED AND ADJUDGED: 1. The government's motion to dismiss for lack of subject matter jurisdiction [DE 119] is DENIED. 2. The stay of discovery pending ruling on the government's motion to dismiss entered November 8, 2011 [DE# 123] is LIFTED. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 18th day of June, 2013. United States District Judge cc. All counsel 14 _SEALED /' NOT SEALED EFTA00177806 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE #1 and JANE DOE #2, petitioners, vs. UNITED STATES OF AMERICA, respondent. ORDER GRANTING PETITIONERS' MOTION TO REQUIRE GOVERNMENT TO FILE REDACTED PLEADINGS IN THE PUBLIC COURT FILE [DE 150] ORDER DIRECTING CLERK TO UNSEAL THE GOVERNMENT'S RESPONSE IN OPPOSITION TO THE MOTION [DE 156) THIS CAUSE is before the court on the petitioners' motion for entry of order requiring the government to file redacted pleadings in the open court file [DE 150], together with the government's sealed response in opposition [DE 156] . For reasons discussed below, the court has determined to grant the motion and order the parties to place all written submissions in this proceeding in the open court file, with limited exception for identifying victim information and evidentiary grand jury materials. There is a presumptive right of public access to pretrial motions of a non-discovery nature, whether preliminary or dispositive, and the material filed in connection with such motions. Romero v. Drummond Co., 480 F.3d 1234 (11th Cir. 2007), citing Leucadia, Inc. v. Applied Extrusion Technologies, Inc., 998 F.2d 157 (3d Cir. 1993); United States v Amodeo, 71 F.3d 1044 (2d Cir. 1995). The common law right of access to judicial proceedings, including the right to inspect and copy public records and documents, is not absolute, however. It does not apply to discovery, and even when it does apply, may be overcome by a showing of good cause, which requires "balanc[ing] EFTA00177807 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 2 of 4 the asserted right of access against the other party's interest in keeping the information confidentiarRomero at 1246, citing Chicago Tribune Co. v. Bridgestone/Firestone, Inc., 263 F.3d 1304, 1309 (11* Cir. 2001). In balancing the competing interests, the court appropriately considers "whether allowing access would impair court functions or harm legitimate privacy interests, the degree of and likelihood of injury if made public, the reliability of the information, whether there will be an opportunity to respond to the information, whether the information concerns public officials or public concerns, and the availability of a less onerous alternative to sealing the documents. Id. In this case, the government identifies the secrecy of grand jury proceedings, protected against disclosure under Fed. R. Crim. P. 6(eX6) as good cause for the filing of its submissions under seal.' Specifically, the government contends that the submission under seal of its (i)original memorandum in support of motion to dismiss; (ii) reply memorandum in support of motion to dismiss for lack of subject mater jurisdiction and (iii) motion to stay discovery pending resolution of motion to dismiss was appropriately made in conformity with a November 8, 2011 (sealed) order permitting limited disclosure of grand jury matters in this proceeding issued by United States District Judge Donald Middlebrooks, the district judge before whom the original grand jury matter was filed. In addition, the government relies on Fed. R. Crim P. 6(eX2)(B), prohibiting certain Rule 6(eX6) provides that "[r] eeords, orders and subpoenas relating to grand-jury proceedings must be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grandjury." Information is protected from disclosure under Rule 6(e) if disclosure would tend to reveal some secret aspect of the grand jury's investigation, such matters as identities or addresses of witnesses or jurors, the subject of grand jury testimony, the strategy or direction of the investigation, the deliberations or questions of jurors and the like. In re Motions of Dow Jones & Co, 142 F.3d 496, 500 (D. C. Cir.), cert. denied, 525 U.S. 820 (1998). 2 EFTA00177808 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 3 of 4 individuals (including prosecutors) from disclosing "a matter occurring before the grand jury" as authority for its submission of the above documents under seal. The November 8, 2011 order refers to certain collateral evidence gathered in Federal Grand Jury Proceeding 05-02 and Federal Grand Jury Proceeding 07-103 (WPB) [DE 121-1, page 15], matters having little, if any, relevance to the issues framed in this proceeding under the Crime Victims Rights Act. The government's insertion ofpassing references to this material in its pleadings before this court does not justify the government's wholesale submission of these filings under seal. In the first instance, it is unlikely that release of the information referenced in the November 8 order would compromise the strategy of ongoing federal grand jury proceeding at this juncture.' However, the court need not address whether grand jury secrecy interests still attach because the petitioners agree to the filing of redacted documents as a method of protecting any possible grand jury secrecy interests while otherwise making public the government's filings in this proceeding. The court agrees that this is a less onerous alternative to sealing which is appropriately employed in this case. See e.g. In re Grand Jury Proceedings, 417 F.3d 18 (1° Cir. 2005); In re Grand Jury Proceedings, 616 F.3d 1172 (10° Cir. 2010). 2 "Grand jury secrecy is not unyielding" when there is no secrecy left to protect. In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006). Rule 6(eX6) requires that records, orders and subpoenas relating to grand jury proceedings remain sealed only "to the extent and as long as necessary to prevent the unauthorized disclosure" of such matters. Thus, when once- secret grand jury material becomes "sufficiently widely known," it may "los[e] its character as Rule 6(e) material." In re North, 16 F.3d 1234 (D. C. Cir. 1994). 3 EFTA00177809 Case 9:08-cv-80736-KAM Document 187 Entered on FLSD Docket 06/18/2013 Page 4 of 4 It is accordingly ORDERED AND ADJUDGED: I. The petitioners' motion to require the government to file all pleadings and other submissions in the open court file, with redactions limited only to references to the above-described grand jury evidence and identifying information pertaining to victims [DE 150] is GRANTED. 2. Within TEN (10) DAYS from the date of entry of this order, the government shall redact out any references to the grand jury material in question from its various pleadings and other submissions in this proceeding, signifying the placement of any redactions with highlighted double brackets, e.g. "[[ ]]," or black-out marker, and shall then re-file the same in the public portion of the court file. Similarly, the government shall redact out any reference to the identity of the crime victims, by name or initial, before placement of the substituted pleadings in the open court file. 3. The Clerk of Court is further directed to unseal and place in the public portion of the court file the government's "Opposition to Petitioners' Motion Requesting an Order Directing the Government to File Redacted Pleadings in the Public Court Filc" [DE 156], which submission contains no descriptive references to the grand jury material in question. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 18th day of June, 2013. United States District Judge cc. All counsel 4 EFTA00177810 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA/JOHNSON JANE DOE 1 AND JANE DOE 2, Plaintiffs v. UNITED STATES OF AMERICA, Defendant INTERN Liac,14-1 \ftPPEAL , Intervenors Roy 1 Jeffrey Epstein hereby request that this Honorab c. (88), denying their Motion for a Protective O: p O G intervenor attorneys' written communications wi of Florida made with the specific purpose of otm investigation of Mr. Epstein through attorney-to-a whether to grant a stay pending appeal, the Cou: factors: "(1) the likelihood that the moving party will ultimately prevail on the merits of the appeal; (2) the extent to which the moving party would be irreparably harmed by denial of the stay; (3) the potential harm to opposing parties if the stay is issued; and (4) the public interest." Florida Businessmen for Free Enterprise v. City of Hollywood, 648 F.2d 956, 957 (11th Cir. 1981). See, e.g., In re Federal Grand Jury Proceedings (FGJ 91-9), Cohen, 975 F.2d 1488, 1492 (11th Cir. 1992). Those factors are amply satisfied in this case: there is a strong likelihood that intervenors will prevail on appeal (or at a minimum, EFTA00177811 they have a "substantial case on the merits," and the "harm factors" militate in favor of granting a stay, Medal Ltd. v. Cipla Ltd., 426 Fed.Appx. 915 (11th Cir. 2011), citing Hilton v. Braunskill, 481 U.S. 770, 778 (1987)); they will be immediately and irreparably harmed by the disclosure of the communications at issue; the plaintiffs will suffer no harm from the granting of a stay until these critically important issues can be resolved by the Eleventh Circuit; and to the extent that the public has an interest in the matter, it would favor considered appellate resolution of the issues presented prior to the release of the communications at issue. The Court's order is the first decision anywhere, insofar as undersigned counsel are aware, which has ordered disclosure to third party civil litigants of private and confidential communications between attorneys seeking to resolve a criminal matter favorably to their clients and government prosecutors. While framed as a disclosure order in this particular case, the Court's decision, which drastically reshapes the landscape of criminal settlement negotiations and sets at nought expectations of privacy, confidentiality, and privilege on which criminal defense attorneys have reasonably relied for many decades in negotiating with government attorneys on behalf of their clients, has potentially far-reaching and, intervenors contend, seriously deleterious consequences for the ability of attorneys nationwide to effectively represent their clients through open and candid communication with government counsel. The decision will have a predictably chilling effect on attorneys around the country, if they can no longer expect privacy and confidentiality in their written communications with prosecutors aimed at reaching a negotiated resolution to the case. Such communications often necessarily involve explicit or implicit admissions regarding their client's conduct — what he did, what he did not do, what he knew, what he intended, and the like — and the attorney's opinions regarding acceptable 2 EFTA00177812 resolutions of the matter, admissions and opinions which attorneys in many cases will be loath to commit to written form if they may be subject to later disclosure to civil adversaries of the attorney's client. This case is far from sui generis — the cases are legion in which there is related civil litigation seeking damages or other recovery from an individual who was the subject of criminal investigation or prosecution and in which, after becoming aware of this Court's decision, plaintiffs will begin clamoring for access to communications between defendants' counsel and prosecuting authorities in the belief that it may help support their civil case against the defendant. In addition to the stay factors addressed below, the importance of these issues for the functioning of the criminal justice system counsels in favor of granting the requested stay. Intervenors have standing under Perlman v. United States, 247 U.S. 7 (1918), to pursue an interlocutory appeal of the Court's order, and questions of privilege and confidentiality asserted by non-parties to the litigation arc paradigmatic examples of circumstances in which interlocutory appeals are allowed, yet the value of that appeal will be severely undercut, if not destroyed entirely, if a stay pending appeal is not granted. Forced disclosure of confidential or privileged communications cannot be undone on appeal; the protections afforded the documents will have been irretrievably lost before the appellate court can pass on the matter, to the intervenors' irremediable prejudice. For all the reasons addressed herein, the Court should grant the requested stay. 1. LIKELIHOOD OF SUCCESS ON THE MERITS.' Intervenors incorporate by reference herein the arguments set forth in their 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 (Doc. 160); Supplemental Briefing of Intervenors Roy Black, Martin Weinberg, and Jay Lefkowitz in Support of Their Motion for a Protective Order Concerning Production, Use, and Disclosure of Plea Negotiations (Doc. 161); Intervenor Jeffrey Epstein's 3 EFTA00177813 A. The Applicability of Rule 410. Any assessment of the merits of the intervenors' contentions must begin with an understanding of the central role of plea bargaining and settlement negotiations in our criminal justice system and the Sixth Amendment protections which surround them. "Plea bargains are .. . central to the administration of the criminal justice system" because ours is "a system of pleas, not a system of trials": ninety-four percent of state convictions are the result of guilty pleas. The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages. Because ours "is for the most part a system of pleas, not a system of trials," it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). In Lafler and Frye, the Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel "extends to the plea bargaining process" and that defendants are entitled to "the effective assistance of competent counsel" during plea negotiations. Lafler, 132 S. Ct. at 1384; Frye, 132 S.Ct. at 1407-09 (2012). Under Lafler and Frye, counsel have an ongoing obligation to provide effective representation in plea bargaining and to engage in communications with the client and the prosecutor to discharge that obligation. Even before formal charges are brought, counsel Motion for a Protective Order and Opposition to Motions of Jane Doe 1 and Jane Doe 2 for Production, Use, and Disclosure of Plea Negotiations (Doc. 162); Notice of Supplemental Authority of the United States Supreme Court (Doc. 163); and Reply in Support of Supplemental Briefing By Limited Intervenors Black, Weinberg, Leticowitz, and Epstein (Doc. 169). 4 EFTA00177814 already addressed the issue in Fed. R. Crim. P. 11(0 and Fed. R. Evid. 410 and did not see fit to recognize a privilege for plea negotiation communications. Neither the Rules of Evidence nor the Rules of Criminal Procedure, however, have ever dealt with specifying the privileges which will and will not be recognized; instead, they leave that function to the courts under Rule 501. Nothing in Rules 11(0 or 410 suggest that Congress rejected (or even thought about) a privilege for attorney settlement/plea negotiation communications when framing those provisions. Rules 11(f) and 410 deal only with what is admissible; they do not purport to extend to what is discoverable. Rule 410 begins with the assumption that a litigant is in possession of plea negotiation materials, and thus the Rule describes the circumstances in which those materials may either be admitted or excluded from consideration at trial. it says nothing, however, about whether a nonparticipant in the plea negotiations is entitled to obtain those materials in discovery in the first instance. That question must be answered by reference to Fed. R. Civ. P. 26, which refers to Federal Rule of Evidence 501, which "empower[s] the federal courts to `continue the evolutionary development of [evidentiary] privileges." Adkins v. Christie, 488 F.3d 1324, 1328 (11th Cir. 2007), quoting Trammel v. United States, 445 U.S. 40, 47 (1980). The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." United States v. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived from "the inescapable truth that 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." Id. at 796. The legislative history, too, "shows that the purpose of Rule 410 and Rule t I (e)(6) is to permit the 10 EFTA00177815 The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." United States v. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived from "the inescapable truth that 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." Id. at 796 (emphasis added). Thus, the most reasonable construction of Rule 410 is that all plea discussions in this case were about offenses for which there was no plea of guilty, and therefore Rule 410 facially and fully applies. Any other reading would render Rule 410 ambiguous and would violate Mr. Epstein's Fifth Amendment rights. The rule's central feature is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement. Such candid discussion will often include incriminating admissions . . . To allow the government to introduce statements uttered in reliance on the rule would be to use the rule as a sword rather than a shield. This we cannot allow; the rule was designed only as a shield. Id. at 797. "Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress ... The elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality." DeBartolo Corp. v. Florida Gulf Coast Trades Council, 485 U.S. 568, 575 (1988). B. Recognition of a Privilege Under Rule 501. The Court rejected intervenors' contention that the Court should recognize a privilege for communications in the course of settlement/plea negotiations on the ground that Congress has 9 EFTA00177816 The Court also rejected the applicability of Rule 410 because the communications between Epstein's counsel and the government led to Epstein's plea of guilty in state court. In the sole case cited by the Court for this proposition, United States v. Paden, 908 F.2d 1229 (5th Cir. 1990), the defendant pled guilty to federal charges pursuant to his plea agreement. That Mr. Epstein entered into a plea in state court to state offenses is irrelevant to the Rule 410 analysis. The plain meaning of Rule 410(4) is that the defendant must enter a plea in federal court relating to the federal offenses under investigation. If Congress had intended to include state court pleas in subsection (4), it would have expressly done so, as it did in subsection (3). There, Congress expressly provided for change-of-plea proceedings in federal court and "comparable state procedures." FED.R.EviD. 410(3). Congress did not provide for state court pleas in subsection (4) of the rule, and "where Congress includes particular language in one section of a statute but omits it in another . . . it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Keene Corp. v. United States, 508 U.S. 200, 208 (1993). Even when plea negotiations result in a guilty plea, not all statements made during those negotiations are thereby subject to disclosure. The plain meaning of Rule 410 is that any disclosure of plea negotiations must relate to the plea that was actually entered. The broad reading adopted by the Court would frustrate the purpose and policy of Rule 410. In this case, there was no plea to the offenses that the government was investigating or to the matters discussed in the plea negotiation letters and cmails. There was never a federal plea that closed out all the federal issues that were the subject of the continuing exchanges of letters and memos in which Mr. Epstein's counsel addressed the reasons why Mr. Epstein should not be federally prosecuted. 8 EFTA00177817 States v. Adelman, 458 F.3d 791 (8th Cir. 2006), also involved statements made by the defendant to federal prosecutors; the defendant's statements were made in meetings at which she was told, according to the government, that she was a "prime suspect" in criminal wrongdoing and that any statements she made could be used against her. Id. at 805. In United States v. Hare, 49 F.3d 447 (8th Cir. 1995), like the other two cases, the statements at issue were made by the defendant to prosecutors voluntarily and unconditionally in the unilateral hope of bettering his chances. Id. at 451. Under the Court's ruling, the attorneys for a person under federal criminal investigation may never enter into negotiations with the government with the primary aim of avoiding federal indictment entirely, no matter how serious and good faith those negotiations, without risking that anything