:4/17/2007 :4L FM Mal: 1/1Y 1, am L. Richey, P Yiliiaa L. Richey, P.A. TO: 5 PAGE: 002 OF 00;

:4/17/2007 :4L FM Mal: 1/1Y 1, am L. Richey, P Yiliiaa L. Richey, P.A. TO: 5 PAGE: 002 OF 00; UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FGJ 07-103 (WPB) IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS FILED UNDER SEAL OLY-63 & OLY-64 REPLY OF WILLIAM RILEY AND RILEY KIRALY TO THE GOVERNMENT'S RESPONSE TO THE MOTION TO INTERVENE AND TO QUASH GRAND JURY SUBPOENAS AND CROSS MOTION TO COMPEL William Riley and Riley Kiraly ("Riley"). by and through undersigned counsel, file this Reply to the Response of the United States to the Motion of Jeffrey Epstein to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel to respond to the Government's assertions that Riley failed to appear before the grand jury.' The Government is mistaken. Riley's appearance before the grand jury was originally scheduled for July 10. 2007. By the agreement of the parties. that appearance was rescheduled for July 17, 2007. The day before that scheduled appearance, i.e.. July 16. 2007. counsel for Jeffrey Epstein, who seeks to intervene in this matter, was informed by Deputy Chief that Riley did not have to appear physically before the grand jury if a motion to quash the subpoena at issue was filed by Epstein before the end of the day on July 17. 2007. As the Government's Response states. Epstein's motion to quash was filed on July 17, 2007 before the close of business. See Gov't Resp. at 1. Riley was informed of these matters by Roy Black, Esquire. and did not appear in reliance on the Government's agreement with Roy Black. I Undersigned counsel has been out of the country and just recently returned. Accordingly, this Reply has been prepared within days of his return. William L Richey, P.A. 301 South Biscayne Boulevard, 34th Floor, Miami Center, Miami, Florida 331314325 •---- Facsimile EFTA00178967 x/17/.:007 PH FRCII: VI: 1 ar L. Richey, P William L. Richey, P.A. TO:, ' • PAGE: 00"; of FGJ 07-103 (WPB) Therefore, contrary to the Government's claim. Riley did not flout the subpoena. Rather. Riley's non-appearance was known by the Government. and Riley met the condition of that excuse, that is. Epstein timely filed the motion to quash. Respect fully submitted, WILLIAM I.. RICHEY. H.A. 201 South Biscayne Boulevard 344 Floor, Miami Center Miami. Florida 33131 Tel: Fax: B William L. Riche' Ha. Bar No. CERTIFICATE OF SERVICF, I hereby certify that on August 17. 2007, the foregoing document will be served via facsimile and U.S. Mail on counsel, as listed on the attached service list. This document was not filed using CM/ECF because it is bring filed under seal. 011am . Richey William L Ridley, P.A. 201 South Biscaync Bo deism, 34th Floor, Miami Center, Miami, Florida 33131-4325 • - Facsimile EFTA00178968 A/17/2007 ):101 114 FWII: Lis ),1( am L. Pachty, P William L. luchey, P.A. TO: ( PAGE: 0.: Service List In re: Grand Jury Subpoenas FOJ 07-103 (WPB) United States District Court, Southern District of Florida Assistant US Attorney 500 South Australian Avenue. Suite 400 West Palm Beach, Florida 33401 Fax: Roy Black. Esquire Black Srebnick Kornspan & Stumpf 201 South Biscayne Boulevard, Suite 1300 Miami Florida 33131 Fax: -3- William I.. Richey, RA. 201 South Biscayne Bottlevant, 34th Floor, Miami Center, Miami, Florida 33131-43a1 FGJ 07-103 (WPII) - Facsimile EFTA00178969 x/1./2007 ):27 PM FROM: WiTliAm L. Richey, P William L. Richey, P.A. TO: .,mmin FADE: 002 OF 00'. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA FGJ 07-103 ( WPB) IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS OLY-63 & OLY-64 FILED UNDER SEAL MOTION OF AND I FOR AN EXTENSION OF TIME NUNC PRO TUNC TO FILE THEIR REPLY MEarid ('`_'1. by and through undersigned counsel, respectfully request for an enlargement of time. mine pro tune, to file their Reply to the Government's Response to the Motion to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel. In support thereof. states as follows: I. Undersigned counsel has been out of the country recently, only returning on August I I, 2007. By that time, the time to reply to the Government's Response to the Motion of Jeffrey Epstein to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel had already expired. 2. Undersigned counsel received a copy of the Reply tiled by Jeffrey Epstein yesterday, August 16. 2007. Counsel has now reviewed that filing. along with the Government's response. 3. reply is being filed concurrently with this request for an extension of time. 4. Counsel attempted to contact the AUSA in this case to determine whether she would consent to the relief requested herein, however. she is unavailable until next Thursday. August 23, 2007. Accordingly, to prevent further delay, this request is being tiled at this time. 5. This request is not made for the purpose of delay. EFTA00178970 3/11/200' )::7 PH FROM: William L. Richey, P William L. Richey, P.A. TO; 1-S61-802-17A7 FAG 6: 00) OF on!. Pal 07-103 (W1>E1) WHEREFORE and respectfully request that the Court enter an order granting them art extension of time nunc pro rune to file their Reply to the Government's Response to the Motion to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel. Respect(Idly submitted. WILLIAM L. RICHEY, P.A. 201 South Biscayne Boulevard 34th Floor. Miami Center Miami. Florida 33131 William L. RibHa. Bar No. CERTIFICATE OF SERVICE I hereby certify that on August 17. 2007. the foregoing document will he served via facsimile and U.S. Mail on counsel, as listed on the attached service list. This document was not filed using CM/ECI because it is being filed under seal. illiam L. Richey cl L Richey, P.A. 201 South Biscayne Boulevard, 34th Floor, Miami Center, Miami, Florida 3.3131-1323 - Facsimile EFTA00178971 8/10/2007 ):27 PM FROM: Wslp an L. Richey, 1, William L. Richey, P.A. TO: '-561-802-1787 PAGE: 000 OF FGJ 07-103 (WPB) Service List In re: Grand Jury Subpoenas FOJ 07-103 (WPB) United States District Court, Southern District of Florida Assistant US Attorney 500 South Australian Avenue. Suite 400 West Palm Beach Florida 33401 Fax: Roy Black. Esquire Black Srebnick Komspan & Stumpf 201 South Biscayne Boulevard, Suite 1300 Miami Florida 33 1 Fax: William 1.. Whey, P.A. 201 South Biscayne Boulevard. 34th Floor, Miami Center, Miami, Florida 331M-4325 • Facsimile EFTA00178972 A/1/200 , ):27 PM !Roll: W11•'am L. Richey, P Uilliam L. ktchwf, P.A. TO: • WIIIINES? ( PAGE: Oin OF 00!. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA RU 07-103 (WPB) IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS OLY-63 & OLY-64 FILED UNDER SEAL ORDER GRANTING MOTION OF1 ' AND FOR AN EXTENSION OF TIME NUNC PRO TUNC TO FILE THEIR REPLY THIS CAUSE came before the Court on the Motion of_, for an Extension of Time Nom Pro Tune to File Their Reply. Upon review of the Motion. it is hereby: ORDERED AND ADJUDGED that the Motion is GRANTED. The Reply of la MI and Mel to the Govenunent's Response to the Motion to Intervene and to Quash Grand Jury Subpoenas and Cross Motion to Compel is deemed timely filed. DONE AND ORDERED in chambers this day of , ')007, at West Palm Beach. Florida. KENNETH A. MARRA UNITED STATES DISTRICT JUDGE cc: William L. Richey. Esquire Roy Black. Esquire EFTA00178973 (Rev. 06/2005)Sealcd Document Tracking Form Corr-- UNITED STATES DISTRICT COURT Southern District of Florida Case Number: RIO" 01 - Io 3 6,0 In ire e rand Jury Plaintiff 674 bpot etas DU CC S Te-C44 1‘ 0 a-noi &4 Party Filing Matter Under Seal On behalf of (se Date sealed doe' If sealed pursuai If sealed pursuai The matter shou O Conclusion O Case Closin tirOther: ti CiPerrnanen t13 is it-furi piled pernictocn-l-ti please • The moving part filed matter should be (select one): O Unsealed anu ptaLeu rn toe public portion of the court file 0 Destroyed ❑ Returned to the party or counsel for the party, as identified above SEALED DOCUMENT TRACKING FORM Name: ROI L-A GI < r e sep . Address: 101 S• • IS 3-1- lo42-) IIDtr Nita. /3 .B— Defendant. er and docket entry number: Arrest of First Defendant Conclusion of Direct Appeal LOOM' &bell C • if no Mob' Cfntet, Vegvne-i‘ coy. licni$Attar yfor:gtAcx, Wonispa,1 cund Stu. sniff PA-. 0$4 60404 of- IrVi-eirVeletthe J-CfereAl ep-feit-) EFTA00178974 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA IN RE GRAND JURY SUBPOENAS DUCES TECUM NUMBERS ) CASE No. FGJ 07-103(WPB) OLY-63 and OLY-64 UNDER SEAL EFTA00178975 UNDER SEAL NOTICE OF UNAVAILABILITY OF COUNSEL FOR INTERVENOR Jeffrey Epstein has moved to intervene in this matter and to quash grand jury subpoenas to investigator and his firm, Mr. Epstein is represented by undersigned counsel Roy Black. The issues raised by the motions to intervene and to quash have been briefed and the parties await a hearing date from the Court. Undersigned counsel would like to inform the Court that he is out of the jurisdiction on a family vacation until September 1, 2007. We respectfully request that any hearing the Court may scheduled in this matter be scheduled after September 1, 2007, at the Court's discretion. Undersigned counsel spoke with the prosecutor, who indicated that the government objects. Respectfully Submitted, BLACK, SREBNICK, KORNSPAN & STUMPF, PA. 201 South Biscayne Boulevard Suite 1300 Miami Florida 33131 Ph: — Fax: E-Mail: By: BLACK, ffot R BLACK, ESQ. Florida Bar No. Counsel for Jeffrey Epstein 2 Black. Srebnkk. Komspan & Stumpf 2015. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: 305-371-6421 • Fat •www.Royffiack.corn EFTA00178976 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on Ihtri.14.O.00* a true and correct copy of the forging motion was furnished by email and by U.S. mail to: United States Attorney's Office, 500 South Australian Avenue, Suite 400, West Palm Beach, FL 33401. This pleading was not filed using the CM/ECF system because it pertains to a grand jury investigation and therefore it has been filed under seal. By: vezzczia4 Fop- ROY ilLACK, ESQ. Counsel for Jeffrey Epstein 3 Black. Srebnick. Komspan & Stum f 2015. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178977 e/7/2007 2:01 PH FROM: Wally %. Richey. P William L. Richey. P.A. TO: PAGE: 002 01" 002 August 7, 2007 Assistant US Attorney 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 RE: Grand Jury Subpoena CASE NO. FGJ 07-103(WPB)/No. OLY-64 Dear Ms. Miami Office Via Facsimile No. Please accept this letter as notice that will be out of town (tom August 13,2007 through August 15, 2007 and both Mr. and I will be out of town from September 5, 2007 through September 16, 2007. If you wish to schedule anything, please be so kind as to contact my assistant, • Linda Vasserot and she will be glad to coordinate dates with you. Sincerely, William L. Richey Transcnbed as Dictated.• Minted & Approved for Electronic Transmission Absent Signature WLR/ dct EFTA00178978 U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave.. Suite 400 ch, FL 3340! Facsimile: VIA FACSIMILE Roy Black, Esq. Black Srebnick Komspan & Stumpf P.A. 201 S. Biscayne Blvd, Suite 1300 Miami, FL 33131 Re: Correspondence Dated July 13. 2007 Dear Mr. Black: July 16, 2007 Thank you for your letter of July 13, 2007. You and your firm are neither a subpoenaed party nor counsel to a subpoenaed party. Accordingly, pursuant to the Federal Rules of Criminal Procedure, I am not at liberty to discuss this matter with you. Moreover, it is not the practice of this Office to discuss internal Department of Justice policies with non-Justice Department personnel. If Mr. believes he has cause to move to quash the subpoena, or if Mr. Epstein does for that matter, counsel for the respective parties should so move. Otherwise, we expect compliance by tomorrow, which includes a one-week extension already requested by Ms. Sanchez prior to Mr. Richey's appearance as counsel for Mr...I cc: , Esq. William Richey, Esq. Lilly Ann Sanchez, Esq. B Sincerely, R. Alexander Acosta Assistant United States Attorney EFTA00178979 U.S. Department of Justice United States Attorney Southern District of Florida 500 South Australian Ave., Suite 400 ch, FL 33401 Facsimile: VIA FACSIMILE William L. Richey, Esq. William L. Richey, P.A. 201 S. Biscayne Blvd, 34th Floor Miami, FL 33131 Re: ISARglatilMill July 16, 2007 Dear Mr. Richey: I have not received a motion to quash the subpoena served upon Mr.Mil, so I expect that your client will appear before the grand jury tomorrow fnow, I believe that his appearance will be at 4:00 p.m. but contact my assistant , later this morning for confirmation of the start time.l.= can be reached at cc: Esq. By: Sincerely, R. Alexander Acosta United States Attorney fn A Assistant United States Attorney EFTA00178980 U.S. Departm of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor Wes Palm B ch, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: Roy Black, Esq. DATE: July 16.2007 FAX NO. _ # OF PAGES: 2 PHONE NO. _ RE: FROM: PHONE NO. , Assistant U.S. Attorney COMMENTS: EFTA00178981 U.S. Departni, of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor lm B ch, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: Lilly Ann Sanchez DATE: July 16, 2007 FAX NO. PHONE NO. # OF PAGES: 2 RE: FROM: PHONE NO. , Assistant U.S. Attorney COMMENTS: EFTA00178982 U.S. Departni of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor IVe • Beach, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: William L. Richey. Esq. DATE: July 16, 2007 FAX NO. # OF PAGES: 3 PHONE NO. _ RE: FROM: PHONE NO. Assistant U.S. Attorney COMMENTS: EFTA00178983 07/16/2007 09:33 FAX USA0 WPB FL 0001 TRANSMISSION OK TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME USAGE T PGS. SENT RESULT ****************t**** es* TX REPORT 3** ********************* 0076 07/16 09:32 01'12 3 OK U.S. Department of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor ch, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: William L. Richey. Esq. DATE: July 16, 2007 FAX NO. # OF PAGES: PHONE NO. RE: 3 FROM: PHONE NO., Assistant U.S. Attorney COMMENTS: EFTA00178984 07/16/2007 09:31 FAX MAO WPB FL Zoo' TRANSMISSION OK TX/RX NO CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME USAGE T PCS. SENT RESULT ********************* *** TX REPORT :ItS ********************* 0075 07/16 09:30 01'00 2 OK U.S. Department of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, 4th Floor West Palm Beach, Florida 33401 Facsimile FACSIMILE COVER SHEET TO: Roy Black, Esq, DATE: July 16.2007 FAX NO. # OF PAGES: 2 PHONE NO. _ RE: FROM: PHONE NO. Assistant U.S. Attorney COMMENTS: EFTA00178985 07/16/2007 09:34 FAX USA0 %MB FL 3***************3**** 3** TX REPORT *** ********************* TRANSMISSION OK TX/RX NO 0077 CONNECTION TEL SUBADDRESS CONNECTION ID ST. TIME 07/16 09:33 USAGE T 00'52 PGS. SENT 2 RESULT OK U.S. Department of Justice United States Attorney Southern District of Florida S00 S. Australian Ave. 4th Floor West Palm Beach, Florida 3340! (SO) 820-fi sm Facsimile FACSIMILE COVER SHEET TO: Lilly Ann Sanchez DATE: July 16. 2007 FAX NO. # OF PAGES: 2 PHONE NO. _ RE: FROM: PHONE NO. Assistant U.S. Attorney COMMENTS: EFTA00178986 ROY BLACK HOWARD M. SREBNICK SCOTT A. KORNSPAN LARRY A. STUMPF MARIA NEYRA JACKIE PERCZEK MARK A.J. SHAPIRO JARED LOPEZ BLACK SREBNICK KORNSPAN STUMPF PA._. July 13, 2007 VIA FACSIMILE AND U.S. MAIL Esq. Assistant United States Attorney Office of the United States Attorney Southern District of Florida 500 South Australian Avenue, Suite 400 West Palm Beach, Florida 33401 Re: Grand Jury Subpoena - William Riley Dear Ms. NM CHRISTINE M. NO JESSICA FONSECA-NADER KATHLEEN P. PHILLIPS AARON ANTHON MARCOS BEATON, JR. MATTHEW P. O'BRIEN E-Mail: I represent Jeffrey Epstein, the target of a pending Grand Jury investigation. Prior to the initiation of this federal investigation, I represented Mr. Epstein on a Palm Beach Florida State Attorney's Office investigation and subsequently an Information, the factual basis of which is identical to, and gave rise to, the federal investigation presently underway. In connection with my earlier representation of Mr. Epstein, I hired Mr. William Riley as a private investigator to act under my direction in anticipation of defending Mr. Epstein against possible criminal charges and any litigation which may have followed. All his investigations were done as my agent and thus are covered by the work product privilege, and all communications to him are protected by the attorney client privilege. Though we are not conceding the existence of any computers that would be responsive to the subpoena served upon Mr. Riley, to the extent there are any such computers, they would contain documents that are privileged attorney -client communications and attorney work-product. Your subpoena also asks for materials describing the scope of his investigation and thus they are our work product. 2O1 S. Biscayne Boulevard. Suite 13OO • Miami, Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178987 , Esq. July 13, 2007 Page 2 As you know, the United States Attorney's Office Manual, Guidelines for Issuing Grand Jury and Thal Subpoenas to Attorneys for Information Relating to the Representation of Clients, requires that the attorney client and work-product privilieged information sought by the Grand Jury subpoena issued to Mr. Riley must first be authorized by the Assistant Attorney General for the Criminal Division before it may issue. Therefore, please advise me as to whether the applicable sections of the United States Attorney's Office Manual was complied with prior to the issuance of the Grand Jury subpoena to Mr. Riley. Please also advise as to the preliminary steps taken in advance of the issuance of the subpoena, as required by the Manual. Finally, please provide me with the name of the Assistant Attorney General of the Criminal Division who undertook the evaluation of the request for the Grand Jury subpoena, as required by the same section of the Manual and, if an evaluation was made, the basis upon which the Assistant determined that the information sought in the subpoena was not protected by a valid claim of privilege. Sincerely, RB/wg Black. Srebnick. Kornspan & Stumpf, P.A. EFTA00178988 11 : M FF 11 k . Richey, P William I.. Richey, P.A. TO: 1-, " -820-8777 PAGE: 002 OP 002 Wi'LLIAM L. RICHEY, P.A. 40:: Sou :It Biscayne Boulevard Fln x, Miami Center Miami, ;bride 33131.4325 *Igeepl.n: :Fa. ziroi e: July 9, 2007 As 3i stant US Attorney S00 South Australian Avenue, Suite 400 WI !st Palm Beach, Florida 33401 RE: Grand Jury Subpoena CASE NO. FGJ 07-103(WPB)/No. OLY-64 5501 SW Sunshine Farms Way Palm City, Florida 34990.5696 Telephona Please Reply To: Miami Office Via Facsimile No. 1- Cc ar Ms. Please accept this letter that William Riley will be out of the country starting July Li, 2007 and returning on July 23, 2007. Also please remember that I am out of the co entry from July 21, 2007 through and including July 31, 2007. If you wish to schedule anything, please be so kind as to contact my assistant, Lb Ida Vasserot and she will be glad to coordinate dates with you. Sincerely; William L. Richey Signed in Mr. Ricliey's absence to avoid del Vi _2/ dct EFTA00178989 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA GRAND JURY MATTER FILED UNDER SEAL IN RE GRAND JURY SUBPOENAS ) DUCES TECUM ISSUED TO ) FGJ 07-103 (WPB)/No. OLY -64 WILLIAM RILEY AND RILEY KIRALY MOTION OF JEFFREY EPSTEIN TO INTERVENE AND TO QUASH GRAND JURY SUBPOENAS AND INCORPORATED MEMORANDUM OF LAW Now comes Jeffrey Epstein and respectfully moves this Honorable Court, pursuant to the Fourth and Fifth Amendments to the United States Constitution and to Fed. R. Crim. P. 17(c), for an Order: A. permitting him to intervene in the matter of two grand jury subpoenas duces tecum issued to William Riley and Riley Kiraly, respectively, and to move to quash said subpoenas; and B. quashing the above referenced subpoenas which require Mr. Riley to appear before the grand jury and to bring with him: 1. All computer equipment and electronic storage media removed from the residence located at 358 El Brillo Way, Palm Beach Florida, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. Black. SrebnIdc. ICanspanS. 201 S. Biscayne Boulevard. Suitc 1300 • Miami. Florida 33131 • Phone: • It • www.RoyBlack.com EFTA00178990 2. All computer equipment and electronic storage media that currently belongs to, or has ever belonged to, Jeffrey Epstein, including but not limited to central processing units ("CPUs"), laptop computers, keyboards, printers, modems, routers, hard drives, flash drives, thumb drives, CD-Roms, DVDs, floppy diskettes, digital cameras, and memory cards. 3. All documents and information related to the nature of the relationship between Mr. William Riley and/or Riley Kiraly and Mr. Jeffrey Epstein, including, but not limited to, retainer agreements; employment agreements; billing statements (whether submitted directly to Mr. Epstein or to a third party for reimbursement); records of the dates when services were performed and the hours worked; telephone logs or records of dates of communications with Mr. Epstein (or with a third party on Mr. Epstein's behalf); appointment calendars/datebooks and the like (whether in hard copy or electronic form) for any period when work was performed on behalf of Mr. Epstein or when any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf); and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. The baies for the requested relief are as follows: A. the compelled production of these items, assuming they exist, would violate Mr. Epstein's rights under the Fifth Amendment to the United States Constitution; B. such production of these items, assuming they exist, would further violate Mr. Epstein's Sixth Amendment right to effective assistance of counsel as well as his attorney-client and work-product privileges; 2 Black, Srebnick. Komspan & Slum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax • www.Koyulack.com EFTA00178991 C. the subpoenas are unreasonable and oppressive and overbroad and unparticularized, in violation of the Fourth Amendment to the United States Constitution, the Due Process Clause of the Fifth Amendment, and Fed. R. Crim. Proc. 17(c); and D. the subpoenas call for purely private papers in violation of the Fifth Amendment under Boyd v. United States, 116 U.S. 616 (1886). As further reason therefore, Mr. Epstein refers the Court to the Memorandum of Law incorporated herein. 3 Black, Srcbnick. Kornspan & Slum 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • lax: • www.RoyBlack.com EFTA00178992 MEMORANDUM OF LAW In or about March 2005, the Palm Beach Police Department initiated a criminal investigation of Jeffrey Epstein to determine whether he committed any criminal acts in connection with allegations that he paid women to provide massages to him in his home. According to information obtained by the local police, one or more of the women so engaged was under the age of 18 at the relevant time. Affidavit of Roy Black, Esq., sworn to July 17,. 2007, annexed ("Black Aft") 73. Following a 16 month investigation, on July 17, 2006, Mr. Epstein was charged under Florida law with one count of soliciting a prostitute, a third degree felony. That charge is still pending. Black Aff. 75. In the fall of 2005, prior to being charged with any wrongdoing, Mr. Epstein retained Roy Black, Esq., to represent him in connection with the then ongoing state investigation. Black Aff. ¶3. Mr. Black in turn hired William Riley of Riley Kiraly, a private investigation firm, to assist him in his representation of Mr. Epstein. Black Aff. 74. During the course of the state investigation, law enforcement authorities concluded that at some time, one or more computers had been removed from Mr. Epstein's home by a private investigator working at the instruction of Mr. 4 Black. Srehnick. Kornspan & Slum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178993 Epstein's counsel. It is those computers;' the testimony of the private investigator; and documents relating to the retention and to the work-product of the investigator that are sought by the subpoenas. Both prior to the charge being brought and thereafter defense counsel were provided with open disclosure of the state's evidence. Black Aff. 16. As a result, all or virtually all of the evidence obtained by the state in its investigation has been reviewed by the defense. Id. Included in the materials reviewed are the audio and/or video taped sworn statements of 18 witnesses, transcripts of all 18 of those recorded sworn statements, the transcript of one additional sworn statement, and over 125 pages of documents prepared by the Palm Beach Police Department which detail every sworn statement obtained by detectives, every interview conducted by detectives, all their investigative efforts, and all the evidence gathered. Id. These documents include the entire police file, as well as the probable cause affidavits prepared by Palm Beach detectives and the application for a search warrant of Mr. Epstein's home. Id. Reviewing these materials has afforded the defense with a thorough understanding of the factual bases for any allegations that have been, or could have been, made against Mr. Epstein. Black Aff. ¶7. We do not concede the existence of any such computers. However, for purposes of this motion, we refer herein to "computers" as if one or more computers described in the subpoenas do exist. 5 Black. Srebnick. Komspan S& ni 201 S. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: • Fax • www.RoyBlack.com EFTA00178994 In approximately January 2007, a grand jury in the Southern District of Florida initiated what was termed a "parallel" investigation to determine whether the conduct in which Mr. Epstein had allegedly engaged violated federal laws, including violations of 18 U.S.C. §2423 (travel for the purpose of engaging in unlawful sexual activity); and 18 U.S.C. §2422(b), use of the Internet or other means of interstate communication to persuade, entice or coerce another to engage in unlawful sexual activity. Black Aff. 11. We understood the conduct being scrutinized by the federal grand jury was the same as the subject of the state prosecution. Black Aff. $8. Indeed, during the course of the federal investigation, prosecutors asked for and were provided with copies of the 18 recorded sworn witness statements, and further asked for copies of the transcripts of those sworn statements. Id. That the two investigations examine the same alleged conduct is also clear from Palm Beach Police Chief Michael S. Reiter's letter expressing the Department's displeasure with the actions of the state grand jury and State Attorney's Office, and explaining he was referring the matter to federal authorities in order to initiate a federal investigation of the facts. Black Aff. 919, see also Black Aff. Exhibit "B". At the same time, the Palm Beach Police Department both publicly released copies of its files, including the 87 page police report and 6 Black. Srebnick. Kornspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00178995 probable cause affidavits prepared by its detectives, and publicly announced its intentions to bring the investigation to federal authorities due to the Department's dissatisfaction with the State Attorney's handling of the matter. Black Aff. 19, see also Black Aff. Exhibit "C". The discovery provided by state authorities in connection with the state prosecution disclosed no allegations or evidence of use of the internet, e-mail or computer based pornography or any other way in which a computer could be used to commit any of the crimes under investigation. Black Aff. 9112. Nor, did the numerous discussions with federal prosecutors. regarding the federal grand jury investigation reveal any such evidence. Black Aff. 919110, 12, 13. These subpoenas were not issued in a vacuum. They are simply the most recent of a series of highly intrusive and unusual attempts to acquire highly personal and/or privileged information concerning Mr. Epstein that can have no relevance whatever to the investigation, including Mr. Epstein's personal tax returns, medical records including treatment notes of Mr. Epstein's treatment by a chiropractor, and now, invasion of the defense camp by seeking records of the investigative work performed by Mr. Riley on behalf of Mr. Epstein's counsel in the very same investigation. 7 Black. Srcbnick. Komspan & Stum f 201S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: • Fax: • www.RoyBlack.com EFTA00178996 The attempt to compel the production of an investigator's "records of dates of communication with Mr. Epstein (or with a third party on Mr. Epstein's behalf)" and to compel the production of records of investigative work "performed on behalf of Mr. Epstein" is an extraordinary invasion of the defense team representing Mr. Epstein as both an indicted state criminal defendant and as a target of the current federal investigation. While the propriety of those other subpoenas is not at issue here, the subpoenas to Mr. Riley and to his firm are. When it was pointed out to prosecutors that internal Department of Justice rules require, inter-O11a, that issuance of the subpoenas be predicated on the pre-approval of the Assistant Attorney General of the Criminal Division under the United States Attorneys' Manual ("USAM"), §9- 11.255, the question as to whether such approval had been obtained was simply ducked in an unilluminating exchange of correspondence. Though such guidelines create no third party rights, the fact that the required approval evidently was not obtained highlights the continuing overreaching of this investigation. Moreover, quite apart from whether the required steps were taken internally to obtain approval before issuing the subpoenas, as a substantive matter, the government could not meet the internal guidelines necessary for issuing a subpoena seeking information relating to the representation of a client set forth in 8 Black. Srebnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax: • www.RoyBlack.com EFTA00178997 USAM §9-13.410, including that "the information sought [be] reasonably needed for the successful completion of the investigation." The challenged subpoenas call for the production, without limitation, of the entire contents of these computers. See Black Aft Exhibit "A". Assuming the computers exist, they can be presumed to contain a vast array of data and documents, private and business related, none of which has been shown at any time to be of any. relevance whatever to the investigation. They would also contain information and documents protected by the attorney-client and work-product privileges. Black Aff. 9115. Compliance with the subpoenas _wo.uld therefore necessarily require Mr. Epstein, through the agent of his attorney, to open all aspects of his life to government inspection and leave the government free to -rummage at will through privileged, private, and business materials which are _wholly irrelevant and unrelated to the subject matter of the government's investigation. 2 First, compliance with the subpoenas by Mr. Riley and/or his firm would violate-Mr. Epstein's Fifth Amendment rights because the act of production would, 2 Even a single computer of the type in standard home usage can contain a volume of information many orders of magnitude greater than the paper storage capacity or a normal home. For example, hard drives sold in 2005 "generally have storage capacities of about eighty gigabytes, roughly the equivalent of forty million pages of text — about the information contained in the books on one floor of a typical academic library." United States v. Vilar, 2007 WL 1075041 at *35 (S.D.N.Y. April 4, 2007) (emphasis added); accord In re Search of Premises Known as 1406 N. 2nd Ave., 2006 WL 709036 at *3 (W.D. Mich. March 17, 2006) (home computer can easily hold 40,000 books); see also In re Search of 3817 W. West End, 321 F. Supp.2d 953.959 (N.D. Ill. 2004). 9 Black. SrebnIck, Komspan & Stum 201 S. Biscayne Boulevard, Suite 1300 • Miami, Florida 33131. Phone: Fax • www.RoyBlack.com EFTA00178998 under the teaching of Fisher v. United States, 425 U.S. 391, 398 (1976), result in compelling testimony from Mr. Epstein himself, in violation of his right against self incrimination. Further, it would also result in invasion of the defense camp, not only questioning actions taken by counsel to Mr. Epstein, but seeking the production of materials to which the government has no possible claim of right — materials protected by Mr. Epstein's attorney-client and work product privileges. Black Aff. 9[15. Moreover, it is simply beyond dispute that no court would uphold a subpoena that purports to require a person to produce every letter, every doeument, 'every bill, every record, every book, every photograph, every page from a magazine or newspaper he ever snipped, and every message he ever wrote, in other words, every piece of paper that is or has ever been in his home, without limitation or particularization. Yet, that is in effect what these subpoenas seek. For this reason alone, the subpoenas are per se unreasonable under the Fourth Amendment, the Due Process Clause of the Fifth Amendment, and Fed.R.Crim.P. Rule 17(c), and should be quashed in their entirety. Indeed, the fact that there are so many ways in which the subpoenas violate Mr. Epstein's fundamental rights may well be underscored by the fact that the government has failed to comply wither procedurally or substantively with the 10 Black. Srebnick, Kornspan 8iSIrrn 201 5. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phonc: • Faic • www.RoyBlack.com EFTA00178999 directives of the Department of Justice regarding issuance of subpoenas calling for information relating to legal representation. Even if the Court determines that the computers themselves must be produced pursuant to the grand jury subpoenas, compelled production does not overcome the need for the government both to particularize a subpoena and further to demonstrate probable cause to search any particular folder or file that is part of the contents of the computer•. Until and unless there is a demonstration that probable cause exists to search for and seize particular documents, no search should be permitted. I. MR. EPSTEIN IS ENTITLED TO INTERVENTION AS A MATTER OF RIGHT. Fed. R. CiV. P. 24(a) grants intervention as a matter of right . . avhen the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties. - Mr. Epstein's interests in protecting materials encompassed within his attorney= client and work-product privileges; in preventing the use against him of compelled testimony in violation of his Fifth Amendment rights; and in protecting his 11 Black. Srebnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: Fax: • www.RoyBlack.com EFTA00179000 personal and business documents from wholesale invasion by the government amply satisfy this standard. Intervention as of right under Fed.R.Civ.P. Rule 24(a)(2) must be granted if it is determined that (1) the application to intervene is timely; (2) the applicant has an interest relating to the property or transaction which is the subject of the action; (3) the applicant is so situated that the disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) the applicant's interest will not be represented adequately by the existing parties to the suit. Sierra Club v. Leavitt, 2007 WL 1649987 at *3 (11th Cir. June 8, 2007), quoting ManaSota-88, Inc. v. Tidwell, 896 F.2d 1318, 1321 (11th Cir. 1990). As detailed below, all four requirements are amply met here. First, the application is timely, as it is being filed prior to enforcement of the subpoenas. Second, Mr. Epstein plainly has a significant interest in protecting his attorney-client and work-product privileges, in asserting his Fifth Amendment privilege, and in preventing unwarranted government rummaging through the contents of his computers. Third, litigation concerning the enforcdability of the subpoenas without Mr. Epstein's participation in the proceedings would leave him powerless to protect these vital interests. Fourth, these interests are personal to him and cannot be represented adequately by either the government or Mr. Riley. 12 Black, Srebnick. Kornspan & Slum f 201S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: • Fax: • www.RoyBlack.com EFTA00179001 Accordingly, Mr. Epstein should be afforded the right to intervene in this matter. II. MR. EPSTEIN'S ACT-OF-PRODUCTION PRIVILEGE PRECLUDES THE GOVERNMENT FROM COMPELLING MR. RILEY TO PRODUCE THE ITEMS AT ISSUE. Compelled production of the items demanded by the subpoenas would violate Mr. Epstein's right, guaranteed by the Fifth Amendment, not to be compelled to be a witness against himself. Because of the clear testimonial aspects that compliance with the subpoenas would require, the "act-of-production" privilege precludes the government from demanding that Mr. Riley appear and produce these items. The Fifth Amendment "protects a person from being compelled to be a witness against himself'. Fisher v.-United States, 425 U.S. at 398. The privilege extends beyond oral testimony to embrace all compelled testimonial communications that are potentially incriminating. It specifically includes the act of producing documents where such production itself "communicates" information. See Fisher, 425 U.S. at _408. As the Supreme Court put it: "[a]lthough the contents of a document may not be privileged, the act of producing the document may be" because "[a] government subpoena compels the holder of the document to perform an act that may have testimonial aspects and an 13 Black. Srehnick, Komspan&St roun 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • vwov.RoyBlack.com EFTA00179002 incriminating effect". United States v. Doe, 465 U.S. 605, 612 (1984); see also Fisher, 425 U.S. at 410 ("the act of producing evidence in response to a subpoena . . . has communicative aspects of its own, wholly aside from the contents of the papers produced"). This is so because • [c]ompliance with the subpoena tacitly concedes the existence of the papers demanded and their possession or control by the [subpoenaed party]. It would also indicate the [subpoenaed party's] belief that the papers are those described in the subpoena. Doe, 465 U.S. at 612, quoting Fisher, 425 U.S. at 410:see also United States v. Hubbell, 530 U.S. 27, 40 (2000) (compelled testimony "is not to be found in the documents produced in response tip the subpoena" but is instead "the testimony inherent in the act of producing those documents"); In re Grand Jury Subpoena, 87 F.3d 1198, 1200 (11th Cir. 1996) ("[t]he production of documents conveys the fact that the documents exist, that they were in the possession of the witness, and that they were the documents subject to the subpoena. . . . Where these communicative acts of production have `testimonial' value and incriminate the witness, the Fifth Amendment privilege may be invoked"); accord United States v. Argomaniz, 925 F.2d 1349, 1355-56 (11th Cir. 1991) (by producing the documents called for under the subpoena, the defendant "would be establishing the existence and authenticity of the documents listed in the summons, as well as verifying that these documents 14 Black. Srebnlck. KornspanSlim 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • mvw.RoyBlack.com EFTA00179003 were in his possession"); In re Grand Jury Subpoena dated April 9, 1996, 87 F.3d 1198, 1200 (11th Cir. 1996); United States v. Gecas, 50 F.3d 1549, 1566 (11th Cir. 1995); In re Grand Jury Subpoena Duces Tecum, 754 F.2d 918, 921 (11th Cir. 1985) ("the act of production alone can constitute self-incriminating testimony); In re Grand Jury 83-8, 611 F. Supp. 16, 21 (S.D. Fla. 1985) ("the act of producing evidence in response to a subpoena . . . does have testimonial aspects of its own, wholly apart from the contents of the papers produced"); In re Keller Financial Services of Florida, Inc.; 258 B.R. 391, 403 (M.D. Fla. 2000); Federal Savings & Loan Ins. Corp. v. Hardee, 686 F. Supp 885, 887 (N.D. Fla. 1988). Had the subpoenas been served directly on Mr. Epstein and demanded that he produce the items which had at some point allegedly been in his Palm Beach home or had ever belonged to him, Mr. Epstein would unquestionably be entitled to the protection of the act-of-production privilege. That is so because, as noted above, production thereof would inherently admit that the materials exist and that they had been in his home and/or belonged to him, which would, in turn, at a minimum, implicitly authenticate the contents of the materials. See, e.g., United States v. Stewart, 2003 WL 23024461 at *3 (S.D.N.Y. December 29, 2003) (act of production privileged where government's claimed relevance for requiring the defendant to produce the subpoenaed documents "depends on the fact that the 15 Black. Srcbnick. Kornspan & Stum 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax: • www.RoyBlack.com EFTA00179004 documents were produced by [defendant] from his files; [c]learly such an act of production is testimonial, and may not be compelled"); United States v. Bell, 217 F.R.D. 335 (M.D. Pa. 2003) (where government lacks knowledge of specific documents, party's production of the subpoenaed documents would testify to their existence and his possession of them). Even if the government is correct in its belief that the items listed in Ts 1 and 2 of the subpoenas are presently in the possession of Mr. Riley and/or his firm, Mr. Riley's possession of the items would not lessen Mr. Epstein's right to the protection of the act-of-production privilege. Mr. Riley is an investigator retained to assist counsel in representing Mr. Epstein in the very matter under investigation by the federal grand jury that issued the subpoenas. As such, Mr. Riley stands in the same relationship to Mr. Epstein as counsel himself. See, e.g., Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. Resolutions Trust Corp.r5 F.3d 1508, 1514 (D.C.Cir.1993); In re Bieter Co., 16 F.3d 929, 936-38 (8th Cir. 1994); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1424 (3d Cir. 1991); United States v. Cote, 456 F.2d 142, 144 (8th Cir. 1972); Uni Judson, 322 F.2d 460, 462 (9th Cir. 1963); United States v. Kovel, 2 922 (2d Cir. 1961); Burlington Indus. v. Rossville Yarn, Inc., No. CI 0401-H, 1997 AWL 404319, at 3 (N.D. Ga. June 3, 1997); see also Uni 16 Black. Srebnick. Komspan 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33B1. Phone: • Fat • vmm.RoyBlackcom EFTA00179005 Schwimmer, 892 F.2d 237, 243 (2d Cir. 1989). In short, the investigator in turn stands in the shoes of his client. See Fisher, 425 U.S. at 404. Since production of the subpoenaed items by Mr. Epstein's legal team would, therefore, be the equivalent of production by Mr. Epstein, and the testimonial communication inherent in that production is the same as if it were Mr. Epstein himself appearing before the grand jury, the full protection of the act-of- production privilege applies here, and the subpoenas must be quashed in their entirety. III. THE SUBPOENAS VIOLATE MR. EPSTEIN'S RIGHT TO COUNSEL UNDER THE SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS WELL AS THE ATTORNEY -CLIENT AND WORK-PRODUCT PRIVILEGES. As drafted, in addition to his Fourth Amendment rights, the subpoenas violate the work-product doctrine, as well as Mr. Epstein's Fifth Amendment right to due process and his Sixth Amendment right to counsel. In Hickman v. Taylor, 329 U.S. 495, 510-11 (1947), the Supreme Court recognized the modern work- product doctrine, holding that: [lin performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client's case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal 17 Black. Srebnick. Komspan & Stumpf 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131. Phone: 305-371-6421 • Fax: • www.FtoyBlack.com EFTA00179006 theories and plan his strategy without undue and needless interference. The work-product doctrine grants attorneys "a zone of privacy within which to prepare the client's case and plan strategy, without undue interference". In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1014 (1S1 Cir. 1988). It applies in criminal as well as in civil cases. United States v. Nobles, 422 U.S. 225, 236-38 (1975) ("Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital"). Equally important, the Supreme Court made it clear in Nobles that the work- product doctrine necessarily extends to work perforined by an investigator for a defendant's attorney: At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself. 422 U.S. at 238-39; see also See Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1422 (11i6 Cir.), modified on other grounds, 30 F.3d 1347 (11th Cir. 18 Black Srebnick, Komspan &Stron 20I S. Biscayne Boulevard. Suite B00 • Miami. Florida 33B1. Phone: • Fat • www.RoyBlack.com EFTA00179007 1994) (documents containing the mental impressions, conclusions, opinions, or other legal theories of an attorney or other representative of a party, concerning the litigation are, absolutely protected). Clearly, the subpoenas served in this case improperly infringe upon the work-product doctrine. The subpoenas seek production of retainer agreements, employment agreements, records of dates when services were performed and the hours worked, telephone logs or records of dates of communications with Mr. Epstein, appointment calendars and diaries during any period in which work was performed for Mr. Epstein or any communication was had with Mr. Epstein (or with a third party on Mr. Epstein's behalf), and records of fee arrangements and payments received for work performed on Mr. Epstein's behalf. See Black Aff. Exhibit "A". These records, which contain evidence of work performed on behalf of Mr. Epstein and his attorneys, must be protected from disclosure by the work- prodiict doctrine. The government cannot invade the defense camp through the mechanism of a subpoena any more than it can by the surreptitious planting of an informant. See, e.g:, United States v. Henry, 447 U.S. 264, 266 (1980) (rule in Massiah v. United States, 377 US. 201 (1964), violated when law enforcement agent instructed jailhouse informant "to be alert" for any incriminating statements). Nor can it do 19 Black. Srebnick. Komspan & Stum f 201 S. Biscayne Boulevard. Suite 1300 • Miami. Florida 33131 • Phone: • Fax • www.Royillack.com EFTA00179008 so by keeping note of the documents selected by defense counsel for copying during the discovery process. United States v. Horn, 811 F.Supp.739 (D.N.H. 1992).3 In Horn, government counsel instructed an agent to make two copies of every document selected by defense counsel to be copied from amongst the materials made available for inspection by the government during the discovery proces