EFTA00204963.pdf

Page 1 THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA IN RE: JANE DOE, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. / Federal Courthouse West Palm Beach, Florida July 11, 2008 10:15 a.m. The above entitled matter came on for Emergency Petitioner for Enforcement of Crime Victim Rights before the Honorable Kenneth A. Marra, pursuant to Notice, taken before Victoria Aiello, Court Reporter, pages 1-32. For the Plaintiff: Bradley Edwards, Esquire For the Defendant: OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204963  Page 2 1 (Call toOrder of the Court). 2 THE COURT: Good morning. Please be seated. 3 This is the case of In Re: Jane Doe, Case 4 Number 08-80736-Civ-Marra. May I have counsel state 5 their appearances, please? 6 MR. LEE: Good morning, Your Honor. May it 7 please the Court, for the United States of America, 8 we have , Assistant United States 9 Attorney and Dexter Lee, Assistant United States 10 Attorney. And we have seated in the front row FBI 11 Special Agent Becker Kendall and Jason Richards. 12 Thank you, Your Honor. 13 MR. EDWARDS: Good morning, Your Honor. Brad 14 Edwards on behalf of the petitioners. Petitioners 15 are also in the courtroom today. This petition is 16 styled on her behalf. 17 THE COURT: Good morning. All right. We're 18 here on the petitioner's motion to enforce her 19 rights as a victim under 18 USC 3771. I have 20 received the petition, the government's response and 21 the victim's reply, which was filed, I guess, this 22 morning. So, You want to proceed, counsel?. 23 MR. EDWARDS: Yes, Your Honor. You prefer me 24 at the podium? 25 THE COURT: It is easier for us to hear you. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204964  Page 3 1 MR. EDWARDS: Your Honor, as a factual 2 background, Mr. Epstein is a billionaire that 3 sexually abused and molested dozens and dozens of 4 girls between the ages of 13 and 17 years old. And 5 through cooperating victims, that evidence can be 6 proven. Because of his deviant appetite for young 7 girls, combined with his extraordinary wealth and 8 power, he may just be the most dangerous sexual 9 predator in U.S. history. This petitioner is one of 10 the victims and she is in attendance today. Another 11 one of Mr. Epstein's victims is also in attendance 12 today. She would be able to provide evidence that 13 she provided-- that Mr. Epstein paid her to provide 14 him over 50 girls for the purposes of him to 15 sexually abuse. Therefore, the undercurrents of the 16 petition are clear. The plea bargain that was 17 worked out for Mr. Epstein in light of the offenses 18 that he committed is clearly unfair to the point 19 that if anybody looks at the information, it is 20 unconscionable. 21 THE COURT: Well, I mean, is that for me? 22 That's not my role. That's the prosecutor's role to 23 apply, would it not? I can't force them to bring 24 criminal charges. What do I have to do with that. 25 MR. EDWARDS: Okay. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204965  Page 4 1 THE COURT: That may be 2 your opinion, that 3 may be your client's opinion, but I presume that the 4 government is aware that that's your client's 5 opinion. How does that change anything? 6 MR. EDWARDS: That's my problem. I'm not 7 sure that the government is aware that is 8 petitioner's opinion and that's why we're here 9 today, just to enforce the victim's rights under 18 10 USC 3771, Crime Victims Rights Act, and all we are 11 asking is to order that the plea agreement that has 12 been negotiated in this case-- 13 THE COURT: How do you know there is a plea 14 agreement? The plea agreement is with the State of 15 Florida, wasn't it? 16 MR. EDWARDS: There was a state charge with 17 one victim that I'm aware of. And the plea 18 agreement as to that one victim was 18 months in the 19 county jail. But along with that, the Palm Beach 20 County Sheriff investigating this case was getting 21 no action out of the local authorities and sent this 22 to the FBI. 23 THE COURT: It was actually the Palm Beach-- 24 Town of Palm Beach Police, not the Sheriff's Office. 25 MR. EDWARDS: I'm sorry, Judge. And that's OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204966  Page 5 1 why the FBI got involved because Michael Feeter wrote a 2 scathing letter to the State Attorney about 3 Mr. Epstein receiving preferencial treatment by 4 local authorities. 5 Before the FBI took the case, they went 6 behind the victim's back, and this is our motion, 7 without the victim's input and allowing her the 8 right to meaningfully confer with the government, 9 which is a right that she can assert at this time. 10 They worked out a plea deal where if Mr. Epstein 11 would plead to this other charge regarding another 12 victim in the state court case, they would agree to 13 not prosecute him for all of the federal charges of 14 what they were aware of in federal court.. 15 THE COURT: So that's already apparently 16 taken place, correct? 17 MR. EDWARDS: I don't know if it has taken 18 place. I'm not sure exactly what stage it is in. I 19 know it is supposed to be attached at some point in 20 time to a state court plea. 21 THE COURT: Hasn't he already plead guilty, 22 though? 23 MR. EDWARDS: If he did plead guilty, it is 24 my understanding and belief that the agreement with 25 the federal government and with the U.S. Attorney's OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204967  Page 6 1 Office wasn't signed on that day. So it is still my belief, 2 I could be wrong, but that that agreement 3 hasn't been completed as of this time. 4 THE COURT: So let's assume it hasn't been 5 completed. 6 MR. EDWARDS: Okay. Then petitioner would 7 like the right to confer with-- 8 THE COURT: You can go in the conference 9 room. We've got the FBI agents, you've got the 10 assigned prosecuting attorney. You have got a 11 conference room. You've got your client. Go and 12 talk. Confer. And then it is up government to 13 decide what to do, correct? 14 MR. EDWARDS: In a way, Your Honor, that's 15 very similar to what happened in In Re: Dean and PB 16 case where there is a plea agreement negotiated and 17 then the victim gets the right to confer. 18 THE COURT: It's already negotiated. What 19 am I supposed to do? 20 MR. EDWARDS: Order that the agreement that 21 was negotiated is invalid and it is illegal as it 22 did not pertain to the rights of the victim. 23 THE COURT: I can order you into the 24 conference room. Then the government can do what it 25 chooses. It can agree to prosecute or it can agree OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204968  Page 7 1 to going forward with the agreement it had already reached 2 and after consulting your client and in 3 taking into consideration your client's views, 4 decide to go forward anyway. I can't make them 5 prosecute him. I can't-- All I can do is, at best, 6 say confer with the victim, consider the victim's 7 input before you make a decision or reconsider the 8 decision you already made in view of the victim's 9 input, if it is possible for you to do that. So if 10 I invalidate the agreement, what's the best you can 11 get? The right to confer? 12 MR. EDWARDS: Exactly. That is all we can. 13 THE COURT: So why can't you go into the 14 conference room now, take as much time as you feel 15 you need and confer? 16 MR. EDWARDS: Judge, at this time I'd like to 17 move ore tenus to add the victim that's in the 18 courtroom to this conference with the U.S. 19 Attorney's Office. 20 THE COURT: So is that Jane Doe 2 for 21 purposes of this? 22 MR. EDWARDS: Exactly, Your Honor. 23 THE COURT: All right. Let me hear from the 24 government then. 25 MR. LEE:. Good morning, Your Honor. May it OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204969  Page 8 1 please the Court. Let me update the Court on the 2 status of 3 various matters. The agreement to defer prosecution 4 to the State of Florida was signed and completed by 5 December of 2007. Mr. Epstein's attorneys saught a 6 higher review within the Department of Justice and 7 it took a number of months for that to come to 8 fruition. When it came to fruition, he ended up 9 pleading guilty on June 30, 2008 to two charges in 10 state court, and he was sentenced to a term of 11 incarceration of 18 months, with another 12 months 12 of community control after the completion of his 13 sentence, and he is currently incarcerated as we 14 speak. 15 We have two arguments, Your Honor. First, 16 insofar as the right that they claim under 17 3771(a)(5), their right to confer in the case, we 18 respectfully submit that there was no case in 19 federal court and, indeed, none was contemplated if 20 the plea agreement was to be successfully completed, 21 since it contemplated the State of Florida sentence 22 on the criminal charges. So as long as certain 23 conditions were met and certain federal interests 24 were vindicated, the federal government was 25 satisfied that this was an appropriate disposition. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204970  Page 9 Insofar as the best effort, Your Honor, we have cited the Attorney General's guidelines. The guidelines do say that you should normally advise victims of plea negotiations and the terms of the plea, but they recognize that there are times when they may not be appropriate or could cause some harm or prejudice, and they set out six factors which are to be considered, non-exhaustive factors. We have advised, in the declaration of 10 Villafana that when the subject of having Mr. 11 Epstein concede that he would be convicted of an 12 enumerated offense for purposes of a cause of action 13 under 18 USC 2255, there was a rather strenuous 14 objection from Mr. Epstein's counsel that the 15 federal government was inducing some effort to 16 either fabricate claims, enhance claims or embellish 17 claims and if this agreement ultimately could not be 18 consumated, then we'd have a federal prosecution on 19 our hands, and we did not want to be in a positin of 20 creating additional impeachment material. 21 I can't say that the stand by Mr. Edwards 22 that the arguments of inducement in a subsequent 23 civil action can be made by any criminal victim, 24 that is true. It is another thing for that 25 inducement to have come before the prosecution OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204971  Page 10 arguing about the credibility and veracity of the individual. That was a considerably strong point, in essence, in not discussing those terms with the victims as might ordinarily be done if those considerations did not exist. So, first, Your Honor, we believe that 3771(a)(5) does not apply. THE COURT: Well, what about the language in the statute that suggests that a victim can bring a 10 claim or seek enforcement of his or her rights under 11 the statute before a case is filed? What does that 12 refer to? 13 MR. LEE: Your Honor, we believe that's a 14 venue provision essentially telling an individual if 15 there is no exigent case, there is no case of United 16 States versus So And So, then you seek to enforce 17 your rights, then you can go in and do so in the did 18 court where the offense occurred. This is not 19 saying, necessarily, that rights exist, but if you 20 believe they exist, here is the place where you're 21 going to have to lodge it, and the Court will have 22 to decide. 23 Now, there are certain of the eight rights 24 accorded in 3771(a) that could come up before any 25 charge is filed. For instance, let's say somebody OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204972  Page 11 believes that the perpetrator of the crime is going to try to harm them or threatened them or intimidated them into not testifying or cooperating with the government and, of course, no indictment has been returned. If an individual went to the government and believed that the individual had not acted appropriately, they can go to the district court and say I need to have my rights under 3771(a)(1) enforced because those people are 10 threatening me, and the government hasn't done 11 enough. That would be a situation. 12 But we're talking really here about (a)(5), 13 which is the right to consult in the case and we 14 respectfully submit that there is not case until a 15 charge has been filed. 16 THE COURT: So, what about the circuit case 17 that was actually pending case had to do with a plea 18 agreement in a pending case? 19 MR. LEE: Yes. The distinction between the 20 Dean case and the instant case, Your Honor, is 21 this. In Dean, they had negotiated with BP 22 Petroleum for a plea and it was always contemplated 23 that there was going to be a federal prosecution. 24 The distinction in this case was that there was 25 already a pending state prosecution and the OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204973  Page 12 1 objective for both sides was to keep it in state court and 2 the federal government's objective was to 3 ensure that there were sufficient safeguards in the 4 state court proceedings and concessions made by Mr. 5 Epstein so that federal interests, particularly a 6 cause of action for damages for the victims of the 7 sexual exploitation could be preserved. So that's 8 the key distinction because there was no federal 9 case, there was no federal criminal charge 10 contemplate so long as the agreement could be 11 reached. 12 THE COURT: All right. So they want me to 13 invalidate your non-prosecution agreement. 14 MR. LEE: Your Honor, we respectfully submit 15 that 3771 does not grant authority of this Court to 16 do so. In the Dean case, for instance, Your Honor, 17 there was a plea agreement that was entered into and 18 district court, of course, entertained a plea 19 agreement and exercised its judicial discretion in 20 terms of whether to accept it or not. The victims 21 were encouraged to go to district court and say, you 22 know, we didn't hear about this. We should have, 23 and we object to it for the following reasons. The 24 district court take that into account. There is no 25 plea agreement before this Court. There will be no OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204974  Page 13 1 plea proceedings in this court. That was all done in state 2 court several weeks ago. So that's another 3 basis for distinguishing Dean. 4 THE COURT: All right. So is there any 5 point in conferring with these victims? 6 MR. LEE: Your Honor, I will always confer, 7 sit down with Jane Doe 1 and 2, with the two agents 8 and . We'll be happy to sit down with 9 them. 10 THE COURT: But it wouldn't make any 11 difference in terms of the outcome. Would maybe 12 give them the benefit of your explanation of why you 13 did what you did and why you came to the conclusion 14 you did, but it is not going to change your decision 15 in any way. 16 MR. LEE: If it is going to change, it would 17 have to be done at a level higher than mine, Your 18 Honor. 19 THE COURT: What was-- I didn't understand 20 your statement earlier that Mr. Epstein wanted some 21 kind of review of higher authority within the 22 Department in terms of whether or not the federal 23 government was going to insist on preserving any 24 civil claims. 25 MR. LEE: Your Honor, of the agreement was OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204975  Page 14 consumated by the parties in December of 2007. Mr. Epstein's attorneys wanted a further review of the agreement higher up within the Department of Justice and they exercised their ability to do that. THE COURT: Meaning? Again, I'm trying to understand. He wasn't happy with the agreement that he had signed? MR. LEE: Basically, yes. And was trying to maintain that the agreement should be set aside or 10 more favorable terms. 11 THE COURT: Now, in terms of -- You don't 12 dispute that Jane Doe 1 and 2-- First of all, do you 13 have an objection to Jane Doe 2 being added as a 14 petitioner in this case? 15 MR. LEE: No, I don't. 16 THE COURT: I'll grant that request. 17 You don't dispute that they're victims 18 within the meaning of the Act. 19 MR. LEE: It depends to which -- There is one 20 Jane Doe-- Well, there is one individual who is one 21 of Mr. Edwards' clients who we do not believe to 22 been a victim. If these are SN and CW, then we have 23 no objection and I can discuss-- If I may have a 24 moment, Your Honor. 25 Your Honor, thank you. I have been OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204976  Page 15 1 corrected. We have no objection. 2 THE COURT: Okay. 3 MR. LEE: We agree they're victims. 4 THE COURT: Now, what is your position, 5 then, regarding the right of a victim of a crime 6 that is potentially subject to federal prosecution 7 to be, to have input with the prosecutor, your 8 office, before a resolution or decision not to 9 prosecute is made? Do you say that there is no 10 right to confer under those circumstances because 11 there is no "case pending" so any decision not to 12 prosecute, there is no right to confer but that 13 right to confer only is triggered once there is an 14 indictment or an information filed? 15 MR. LEE: That is correct, Your Honor. The 16 Attorney General guidelines which were published in 17 May of 2005 provide that the rights in 3771(a)(1 18 through 8) accrue when a charge is filed in federal 19 court. Now, that my change after the Dean 20 decision. It is under consideration. But that's 21 the government's position. 22 THE COURT: All right. And so -- Are you 23 saying all of the rights-- 24 MR. LEE: Your Honor, some of the rights 25 clearly will only pertain after a charge has been OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204977  Page 16 1 2 filed. The one that pertains to notice of public hearing, 3 public proceedings, though, can't apply 4 until there are public proceedings to be had. 5 Of course, these guidelines are a floor and 6 not a ceiling. They're to be applied with common 7 sense. If somebody-- If charges of assault were 8 being investigated and somebody would come in and 9 say the perpetrator whom you're investigating is 10 getting ready to indict has been threatening me, 11 following me, and I need help because he or she is 12 going to do something bad to me and try to take care 13 of me before I can testify in the grand jury, this 14 person would not be turned away because a charge 15 hasn't been filed yet. Those guidelines would be 16 applied with common sense. 17 But specifically insofar as a (a)(5), which 18 is the right to consult with the attorney for the 19 government in the case, that would not accrue until 20 there is a days. And, in our view, a case doesn't 21 come into being until charges are filed. 22 THE COURT: And are there any reported 23 decisions that you are aware of where any court has 24 found a right to confer before charges are filed? 25 MR. LEE: I'm not aware of any, Your Honor. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204978  Page 17 1 THE COURT: All right. Thank you. 2 MR. LEE: Thank you, Your Honor. 3 THE COURT: Counsel? 4 MR. EDWARDS: I would just like to address 5 that Dean decision. They're asking you that you 6 just simply ignore it because the decision clearly 7 was a decision made because as it is a direct result 8 of a plea deal being worked out prior to the victims 9 being able to speak. 10 THE COURT: But there was a pending case, 11 though, correct? 12 MR. EDWARDS: As I understand the decision-- 13 THE COURT: As I understand the plea deal, it 14 was negotiated prior to charges being filed. Then 15 there was a filed case and then the court had the 16 ability to accept the plea or not. And at that 17 point, you would have the ability to entertain or 18 assert an objection because you weren't consulted 19 about the plea. 20 So there was a proceeding or case in which 21 you can assert a right to confer. How do you do 22 that before a case is filed? How do you enforce the 23 government or force the government to consult about 24 not filing a case? Every case they have to consult 25 with the victim before they decide not to prosecute? OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204979  Page 18 1 MR. EDWARDS: No, there are limitations. I 2 think in my reply I refer to the case of U.S. I. Rubin where 3 they discussed that very scenario 4 stating there at least has to be criminal charges 5 contemplate by the government before these rights 6 kick in. The rights under (d)(3) and (a)(5), the 7 right to confer and the Dean case clearly states 8 clearly rights under the CBRA apply before 9 prosecution is under way. Logically, this includes 10 the CBRA establishments of a victim's reasonable 11 right to confer with the attorney for the 12 government. And, that's read in the plain reading 13 of the statutes as well. 14 This first case in interpreting it, I think 15 it's pretty clear the distinction they're making 16 between BP and this case. Is it a distinction 17 withoug a real difference in that the court is 18 saying you have this right before the case is filed 19 which is exactly what we are saying. And the result 20 in that case was they filed the case, later let him 21 plea out to some sweet deal. And in this case, what 22 we have is they avoid that by deciding not to file. 23 Either way, you deprive the victim of their right 24 before making that decision. 25 And the main problem that the court had in OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204980  Page 19 Dean, as it states, the victims do have rights when there is an impact and the eventual sent is substantially less. Whereas here, their input is received after the parties have reached a tentative deal. Well, the government just stated the deal was reached back in October of 2007. However, attached to their response is a letter to my client petitioner, dated January 10, 2008, after the time then counsel just put on the record that the deal 10 was already finalized and it starts, the opening 11 paragraph talks about whether they wanted the 12 victims to have the right to confer. It says, this 13 case is currently under investigation. This is 14 January 2008. This case has been a lengthy process 15 and we request your continued patience while we 16 conduct a thorough investigation. Sounds like the 17 exact opposite of, we want you to come in and confer 18 and let us know what you really feel about this. 19 That is our biggest problem with what has 20 happened here, is that she just wasn't given a voice 21 and if somebody would have heard her, we believe 22 there would have been a different outcome. To go 23 back into a room right now and talk, after there has 24 already been a plea negotiated without Your Honor 25 ordering that in this case the plea deal needs to be OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204981  Page 20 1 vacated, it is illegal and give her her rights. 2 THE COURT: Well, would you agree or not that Mr. 3 Epstein plead guilty to the state charges 4 probably at least, in part, in reliance upon the 5 fact that he had an agreement with the federal 6 government they weren't going to prosecute? Would 7 you concede that or would would present evidence to 8 that effect? 9 MR. EDWARDS: Of course we would. Yes, of 10 course. Sure. 11 THE COURT: So you agree that Mr. Epstein is 12 now sitting in the Palm Beach County Jail a 13 convicted felon serving 18 months of imprisonment, 14 at least in material part, because he relied upon 15 the government's non-prosecution agreement? 16 MR. EDWARDS: Yes. I agree that he is sitting 17 there because he is guilty and maybe he took the 18 plea rather than going to trial and being found 19 guilty later in part because of this non-prosecution 20 agreement that was worked out behind the other 21 victims' backs. I would agree with that. 22 THE COURT: So he accepted the State's deal 23 in part because he knew he had an agreement from the 24 federal government that they weren't going to 25 prosecute. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204982  Page 21 1 MR. EDWARDS: I presume. I speculate that is 2 true. 3 THE COURT: So you want me now, then, to set 4 aside the government's agreement with him because 5 there was no conferring, yet he has already accepted 6 a plea agreement and is sitting in custody, in part, 7 in reliance on that agreement. I mean, I can undo 8 the agreement in your theory, but how do I-- Mr. 9 Epstein, in a sense, would then be adversely 10 affected by my actions when he acted in reliance 11 upon the agreement. How does that work? 12 MR. EDWARDS: Certainly, we're only asking 13 you to vacate the agreement. I understand and your 14 point is well taken. And I believe that at that 15 point in time his rights may kick in and say, wait, 16 I was relying on this other deal so I wouldn't be 17 prosecuted for these hundreds of other girls that I 18 molested; that I plead guilty over here to the one 19 girl that I will admit to molesting. So maybe I can 20 get to withdraw my plea. But the last thing he wants 21 to do because if he ends up going to trial, I'll be 22 in prison for the rest of his life like any other 23 person who ever did this crime would be. He could 24 have that argument, I guess, but still wouldn't 25 really work well for him. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204983  Page 22 1 THE COURT: All right. So you still think I 2 should set aside the agreement, require the government to 3 confer? 4 MR. EDWARDS: Work out a plea negotiation 5 commensorate with the crimes that he committed and 6 that are favorable after they confer with the 7 victims. And it is within their discretion. Of 8 course, they can decide on their own that, hey, I 9 think that the agreement was fair after they have 10 talked with the victims. That could happen. I 11 don't know if a reasonable person that would do 12 that, but it could happen. 13 THE COURT: Apparently, you are not 14 suggesting that that these person are not 15 reasonable. 16 MR. EDWARDS: I'm suggesting they haven't 17 conferred with the victims and that if they took 18 into consideration what these two in the courtroom 19 have to say, I don't think that we'd be in this same 20 position right now. 21 THE COURT: They have never spoken to your 22 client about what happened to them? 23 MR. EDWARDS: They have spoken to them about 24 what happened. Maybe not about what the girls 25 wanted to happen as a result of this case, which is OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204984  Page 23 1 part of conferring to decide that these girls wanted 2 money on their own, which is basically what this-- this 3 non-prosecution agreement entails that has 4 language that he'll agree to liability in a civil 5 case. That's not what these girls-- They want 6 justice. They want him in prison now more than 7 ever. The reason they stated they kept this 8 agreement from the girls and they basically conceded 9 we didn't tell the girls about this agreement, well, 10 the reason is because they would have objected and 11 they wouldn't have been able to sign off on this and 12 the victims would have had a voice, and we'd still 13 been going through litigation. The exact problem 14 they tried to prevent, at least in their terms which 15 was the impeachment of these girls at a later trial, 16 is still available to anybody once the civil suits 17 are filed anyway. 18 They have three arguments. One, we didn't 19 have to talk to them. Two, we did talk to them sort 20 of. And if you don't buy that, the reason we didn't 21 talk to them, we were trying to prevent them from 22 being impeached later. None of them trump the 23 victims' rights to confer prior to plea 24 negotiations. That's why, Your Honor, we would ask 25 this Court to enter an order vacating that previous OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204985  Page 24 plea agreement as illegal, ask them to confer with the victims once again or for the first time and work out a negotiated plea to that accord. THE COURT: Well, all you can ask them to do is confer. I can't ask them to do anything beyond that. I mean, it is up to them to negotiate. MR. EDWARDS: I wouldn't quarrel with that. THE COURT: Now, having learned today, I guess, that the agreement was signed when, in 10 October? 11 MR. EDWARDS: October 2007, I heard. 12 THE COURT: About eight or nine months ago, 13 is there any need to rush to a decision in this 14 matter? The decision has already been made. You 15 filed this, I think, on the presumption that the 16 agreement was about to take place and you wanted to 17 be able to confer beforehand and you weren't sure 18 what was going on. 19 MR. EDWARDS: Precisely, Your Honor. And I'm 20 holding the letters that are exhibits that they were 21 writing to my client during the year of 2008 telling 22 her how lengthy of a process this was going to be 23 and be patient. So, right, I was completely in the 24 dark about when this agreement was signed. 25 THE COURT: In view of the fact that this OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204986  Page 25 1 agreement has already been consumated, and you want 2 me to set it aside, as opposed to something that's about to 3 occur, would you agree that-- and I have 4 done this very quickly because of the petition and 5 your allegation that something was about to happen. 6 I'm not blaming you. 7 MR. EDWARDS: I was mistaken. 8 THE COURT: I'm not blaming you for doing 9 that. In view of what you know now, is there any 10 need to treat this as an emergency that has to be 11 decided by tomorrow? 12 MR. EDWARDS: I can't think of any reason in 13 light of what we just heard. 14 THE COURT: Mr. Lee, do you have anything 15 else you wanted to add? Does either side think I 16 need to take evidence about anything? If I do, 17 since this is not an emergency anymore, I can 18 probably find a more convenient time to do that. I 19 don't have the time today to take evidence. But if 20 you do believe that I should take evidence on this 21 issue. 22 MR. EDWARDS: It may be best if I conferred 23 with the U.S. Attorney's Office on that and we can 24 make a decision whether it is necessary or whether 25 Your Honor deemed it was necessary for you to make a OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204987  Page 26 decision. THE COURT: I want to know what your respective positions are because it may be something in terms of having a complete record, and this is going to be an issue that's it going to go to the Eleventh Circuit, may be better to have a complete record as to what your position is and the government's is as to what actions were taken. And I don't know if I have enough information, based on 10 affidavit or I need additional 11 information. And because it is not an emergency, I 12 don't have to do something quickly, we can play it 13 be ear and make this into a more complete record for 14 the court of appeals. 15 MR. EDWARDS: If there is a time where it is 16 necessary to take evidence, Your Honor is correct in 17 stating that it is not an emergency and it doesn't 18 need to happen today. And, I will confer with the 19 government on this and if evidence needs to be 20 taken, it be taken at a later date. It doesn't seem 21 like there will be any prejudice to any party. 22 THE COURT: Mr. Lee, do you have any 23 thoughts? You want to consult with Mr. Edwards? 24 MR. LEE: There may be a couple of factual 25 matters that I need to chat with petitioner's OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204988  Page 27 1 counsel on. If we can reach agreement on those as 2 to what was communicated to CW and what time, if they don't 3 dispute that, then we don't think it will 4 be necessary to have an evidentiary hearing. But if 5 we can agree, fine or maybe we can't. We'll talk 6 about it. 7 THE COURT: All right. So why don't you let 8 me know if you think an evidentiary hearing is 9 necessary. If there are additional stipulations you 10 want to enter into or supplement what has already 11 been presented, you can do that. 12 Now, the other issue I want to take up, 13 though, is the government filed its response to the 14 petition under seal. And so I want to know why. 15 What is in there that at this point needs to be 16 under seal? Is there anything in there that's 17 confidential, privileged, anything that's different 18 from what you hve said here in open court that 19 requires that to be sealed? 20 MR. LEE: Well, Your Honor, on our motion to 21 seal was based on two reasons. One that dealt with 22 individuals or minors at the time that the offense 23 occurred. So we were attempting to protect the 24 privacy of those individuals. And also it dealt 25 with negotiations with Mr. Epstein which were in the OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204989  Page 28 1 nature of plea negotiations, which we treat as 2 confidential. Normally, they're not aired out in open court. 3 So those were our two reasons. 4 THE COURT: All right. But I guess the 5 letters you attached only related to Mr. Edwards' 6 client. 7 MR. LEE: Three of them, yes, Your Honor. 8 THE COURT: Are you prepared, Mr. Edwards, 9 to waive any issues regarding the release of those 10 documents that relate to your clients? 11 MR. EDWARDS: Judge, I think it would be 12 appropriate to redact the names of the clients as 13 they have done. 14 THE COURT: I don't think the names are in 15 there. 16 MR. EDWARDS: I think they're redacted. 17 They're blacked out. I have no problem with 18 releasing those documents. I'm not sure that's part 19 of the deal. But if it is-- 20 MR. LEE: It is. 21 MR. EDWARDS: Okay. I'll waive. 22 THE COURT: You really don't have any 23 objection to those letters that were sent to them 24 being released to the public? 25 MR. EDWARDS: Of course not, Judge. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204990  Page 29 THE COURT: Then what is there about the plea agreement or the negotiations that is in the response that we really haven't already kind of-- MR. LEE: Your Honor, there was a confidentiality agreement in the deferral of prosecution to the State of Florida. So we were trying to maintain the confidentiality of the negotiations that occurred since we had discussions during those negotiations as one of the reasons why 10 we decided not to tell all of the individuals what 11 was going on. 12 THE COURT: But is that still necessary, 13 that confidentiality or is that kind of moot at this 14 point? 15 MR. LEE: Well, we would like it sealed. 16 Admittedly, what happened today in open court has 17 probably weakened our argument. I don't dispute 18 that. 19 THE COURT: In your opinion, anything in 20 particular, any paragraph in the response or in Ms. 21 Villafana's affidavit that you think is particularly 22 troublesome that should remain under seal? 23 MR. LEE: May I have a moment, Your Honor? 24 THE COURT: Yes. 25 MR. LEE: Thank you. Your Honor, one aspect OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204991  Page 30 of this in the notification letters that were dispatched to individuals which were attached to Ms. Villafana's declaration, there is a citation to a clause in the agreement that was reached regarding the damages remedy under 18 USC 2255 that was subject to the constitutionality agreement, we believe that should still remain confidential. THE COURT: But hasn't the fact that this provision was part of the agreement again been 10 aired? Is there any secret to it anymore? 11 MR. LEE: The actual text of it has not been 12 aired. The existence of it has been heard but the 13 actual text has not and we believe it should still 14 remain confidential. 15 THE COURT: Okay. Any other argument on 16 that issue? 17 MR. LEE: No, Your Honor. Thank you. 18 THE COURT: wants to speak to 19 you. 20 MR. LEE: Your Honor, one item that I'd like 21 to bring to the Court's attention. We had advised 22 Mr. Epstein and his attorneys that if we were to 23 dislose some of the agreement, we would give them 24 advance notice and ability to lodge an objection. We 25 would like an opportunity to do that. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204992  Page 31 1 THE COURT: All right. But you're not 2 disclosing. It would be by my order that it would be 3 disclosed. 4 MR. LEE: Yes, Your Honor. And we just would 5 like to register that we believe it should remain 6 confidential. 7 THE COURT: All right. 8 MR. EDWARDS: Your Honor, I don't see any 9 authority for keeping that under seal. 10 THE COURT: I agree. The fact that there is 11 this preserved right on behalf of the victims to 12 pursue a civil action is already a matter of public 13 record; the exact text of the clause-- I don't see 14 that disclosing the text of the clause when the fact 15 that the clause exists is already a matter of public 16 record. It is not harmful in any way to Mr. Epstein 17 or the government and the letters to the victim that 18 the victim can disclose those letters, they're not 19 under any confidentiality obligation or restriction 20 and they're free to disclose it themselves if they 21 choose to. So I don't see that there is any real 22 public necessity to keep the response sealed in view 23 of what we discussed already on the record and the 24 victim's ability to disclose those provisions of 25 their own choosing, if they wish. So, in view of OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204993  Page 32 1 the public policy that matters filed in court 2 proceedings should be open to the public and sealing should 3 only occur in circumstances that justife the 4 need to restrict public access, I'm going to deny 5 the motion to seal the response and allow that to be 6 viewed. 7 All right. So I'll let both of you confer 8 about whether there is a need for any additional 9 evidence to be presented. Let me know one way or 10 the other. If there is, we'll schedule a hearing. 11 If there isn't and you want to submit some 12 additional stipulated information, do that, and then 13 I'll take care of this in due course. 14 MR. EDWARDS: Thank you, Your Honor. 15 THE COURT: All right. 16 MR. LEE: Thank you, Your Honor. 17 : Thank you, Your Honor. 18 THE COURT: You're welcome. 19 (Proceedings concluded.) 20 21 22 23 24 25 OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204994  Page 33 1 2 I hereby certify that the foregoing is true 3 and correct to the best of my ability. 4 5 6 7 Victoria Aiello, Court Reporter 8 9 10 11 12 13 OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204995