EFTA00800253.pdf

Olt LexisNexis° User Name: DAVID SCHOEN Date and Time: Saturday, February 23, 2019 11:55:00 PM EST Job Number: Document (1) 1. Doe v. United States. 2019 U.S. Dist. LEXIS 27215 Client/Matter: -None- Search Terms: cvra and npa Search Type: Terms and Connectors Narrowed by: Content Type Narrowed by Cases -None- LexisNexis' I About LexisNexis I Privacy Policy I Terms & Conditions I Copyright © 2019 LexisNexis DAVID SCHOEN EFTA00800253 No Shepard's Signalm As of: February 24, 2019 4:55 AM Z. Doe v. United States United States District Court for the Southern District of Florida February 21, 2019, Decided; February 21, 2019, Entered on Docket CASE NO. 08-80736-CIV-MARRA Reporter 2019 U.S. Dist. LEXIS 27215 Burlington, P.L., Miami, FL; Steven Russell Safra, Thomas E. JANE DOE I AND JANE DOE 2, Petitioners, vs. UNITED Scott, Jr., Cole Scott & Kissane. Miami, FL. STATES, Respondent. For The Palm Beach Post, Palm Beach Daily News, Core Terms Intervenors: Rachel Elise Fugate, LEAD ATTORNEY, Shullman Fugate PLLC, Tampa, FL. notification, email, rights, notice, Attorney's, letters, confer, charges, girls, guilty plea, co-conspirators, non-prosecution, Judges: KENNETH A. MARRA, United States District inform. summary judgment, crime victim, state court, Judge. negotiating, deferred, notify, terms, federal investigation, plea agreement, law law law, individuals, damages, sexual, sexual Opinion by: KENNETH A. MARRA abuse, proceedings, indictment, sentencing Opinion Counsel: [ol] For Jane Doe, Petitioner: Bradley James Edwards, LEAD ATTORNEY, Edwards Pottinger LLC, Fort Lauderdale, FL; Jay C. Howell, PRO HAC VICE, Jay Howell & Associates PA, Jacksonville, FL; John Scarola, Searcy OPINION AND ORDER Denney Scarola Barnhart & Shipley, West Palm Beach, FL; Paul G. Cassell, PRO HAC VICE. This cause is before the Court upon Jane Doe 1 and Jane Doe 2's Motion for Partial Summary, Judgment (DE 361); the For United States of America, Respondent: Ann Marie C. United States's Cross-Motion for Summary Judgment (DE Villafana, LEAD ATTORNEY, United States Attorney's 408); Jane Doe 1 and Jane Doe 2's Motion to Compel Office, West Palm Beach, FL; Dexter Lee, LEAD Answers (DE 348) and Jane Doe I and Jane Doe 2's Motion ATTORNEY, United States Attorney's Office, Miami, FL. for Finding Waiver of Work Product and Similar Protections For Roy Black, Intervenor. Jacqueline Perczek, Roy Eric by Government and for Production of Documents (DE 414). Black, Black Srebnick Komspan & Stumpf, Miami, FL; Jay The Motions are fully briefed and ripe for review. The Court P. Lefkowitz, PRO HAC VICE, Kirkland & Ellis, LLP, New has carefully considered the Motions and is otherwise fully York, NY; Martin G. Weinberg, PRO HAC VICE, Martin G. advised in the premises. Weinberg, P.C., Boston, MA. For Martin G. Weinberg, Jay Lefkowitz, Intervenors: I. Background Jacqueline Perczek, Black Srebnick Komspan & Stumpf, Miami, FL; Jay P. Lefkowitz, PRO HAC VICE, Kirkland & The facts, as culled from affidavits, exhibits, depositions, Ellis, LLP, New York, NY; Martin G. Weinberg, PRO HAC answers to interrogatories and reasonably inferred, for the VICE, Martin G. Weinberg, P.C., Boston, MA. purpose of these motions, are as follows: For Bruce Reinhart, Intervenor: Bruce Reinhart, Bruce E. From between about 1999 and 2007, Jeffrey Epstein sexually Reinhart, P.A., West Palm Beach, FL. abused more than [*3] 30 minor girls, including Petitioners For Jeffrey Epstein, Intervenor: Jacqueline Perczek, Roy Eric Jane Doe I and Jane Doe 2 (hereinafter, "Petitioners"), at his Black, Black Srebnick Komspan & Stumpf, Miami, [ig] FL. mansion in Palm Beach, Florida, and elsewhere in the United States and overseas. (Government Resp. to Petitioner's For Alan M. Dershowitz, Intervenor: Kendall Brindley Statement of Undisputed Material Facts (hereinafter, "DE Coffey, LEAD ATTORNEY, Gabriel Groisman, Coffey 407" at ¶ I.) Because Epstein and his co-conspirators DAVID SCHOEN EFTA00800254  Page 2 of 13 2019 U.S. Dist. LEXIS 27215, 9 knowingly traveled in interstate and international commerce letter promised that the Justice Department would make its to sexually abuse Jane Doe I, Jane Doe 2 and others, they "best efforts" to protect Jane Doe l's rights, including "the committed violations of not only Florida law, but also federal reasonable right to confer with the attorney for the United law. (DE 407 at I 2.) In addition to his own sexual abuse of States in the case" and " to be reasonably heard at any public the victims, Epstein directed other persons to abuse the girls proceeding in the district court involving [a] . . . plea." The sexually. (DE 407 at 13.) Epstein used paid employees to find notification further stated that, "[all this time, your case is and bring minor girls to him. Epstein worked in concert with under investigation." (DE 407 at 1 13.) Jane Doe I relied on others to obtain minors not only for his own sexual those representations and believed that the Government would gratification, but also for the sexual gratification of others. protect those rights and keep her informed about the progress (DE 407 at 18.) of her case. (DE 407 at I 14.) In 2005. the Town of Palm Beach Police Department On July 6, 2007, Epstein's lawyers sent a 23-page letter ("PBPD") received a complaint from the parents of a 14 year lodging numerous arguments to persuade the Office that no old girl about her sexual abuse by Jeffery Epstein. The PBPD federal crimes had been committed by him. (DE 407 at I 15.) ultimately identified approximately 20 girls between the ages By August 3, 2007, the Government had rejected Epstein's of 14 and 17 who were sexually abused by Epstein. (DE 407 various arguments against federal charges and sent a letter to all 4.) In 2006, at 1*4] the request of the PBPD, the Federal Epstein's counsel stating, "[vle would reiterate that the Bureau of Investigation ("FBI") opened an investigation into agreement to Section 2255 la civil restitution provision] allegations that Epstein and his personal assistants used the liability applies I*6] to all of the minor girls identified during facilities of interstate commerce to induce girls between the the federal investigation, not just the 12 that form the basis of ages of 14 and 17 to engage in illegal sexual activities. (DE an initial planned charging instrument." (DE 407 at 1 17.) On 407 at 15.) The FBI ultimately determined that both Jane Doe September 10, 2007, multiple drafts of a non-prosecution 1 and Jane Doe 2 were victims of sexual abuse by Epstein agreement ("NPA") had been exchanged between Epstein's while they were minors. Jane Doe 1 provided information counsel and the Office. (DE 407 at 1 18.) about her abuse and Jane Doe 2's abuse to the FBI on August 7, 2007. (DE 407 at 16.) On September 12, 2007, while attempting to create alternative charges against Epstein, the Office expressed concern about From January, of 2007 through September of 2007, "the effect of taking the position that Mr. Epstein's house is in discussions took place between the U.S. Attorney's Office for the special maritime and territorial jurisdiction of the United the Southern District of Florida ("the Office") and Jeffrey States" because the Government had "no evidence of any Epstein's attorneys. (DE 407 at 1 9.) On February I, 2007, assaults occurring either on Mr. Epstein's plane or offshore Epstein's defense team sent a 24-page letter to the Office from his residence." (DE 407 at 1 19.) On September 13, going over what they intended to present during a meeting at 2007, the line prosecutor emailed Epstein's counsel indicating the Office the same day. (DE 407 at 1 10.) an effort to come up with a solution to the aforementioned concern and she stated that she had been "spending some By March IS, 2007, the Office was sending letters to victims quality time with Title 18 looking for misdemeanors." The informing them of their rights pursuant to the Crime Victims' line prosecutor further indicated, "I know that someone Riehts Act ("CVRA"). (DE 407 at I II.) By May of 2007, the mentioned there being activity on an airplane. I just want to Office had drafted an 82-page prosecution memorandum and make sure that there is a factual basis for the plea that the a 53-page indictment outlining [*5] numerous federal sexual agents can confirm." Epstein's counsel [*I] responded, offenses committed by Epstein. (DE 407 at 1 12.) On or about "lallready thinking about the same statutes." (DE 407 at 120.) June 7, 2007, FBI agents had delivered to Jane Doe I a standard CVRA victim notification letter.I The notification On September 14. 2007, after having spoken on the telephone about the subject matter of the September 13 emails, Epstein's counsel and the line prosecutor exchanged emails including a proposed plea agreement for Epstein to plead guilty to ' On or about August 11. 2006. Jane Doe 2 received the same CVRA letter. (DE 407 at 1 7.) Initially. Jane Doe 2 was unwilling to provide any information to the Assistant United States Attorney ("AUSA") A. Marie Villafaila FBI or the Office unless she was assured her statements would not be ("line prosecutor" "Villafatia") testified that both Jane Doe I and used against her. She also described Epstein as "an awesome man" Jane Doe 2 received letters describing their rights under the CVRA. and stated that she hoped "nothing happens to" him. (DE 415 at Ill Although Jane Doe I and 2 were given Ms. Villafana's and the FBI 14-15.) This was during the time period where Jane Doe 2 had agent's name and phone number, neither contacted either of them. obtained counsel paid for by Epstein. (Jane Doe 2 Decl. in 5-7.) (Villafaila Decl. 15, DE 403-19.) DAVID SCHOEN EFTA00800255  Page 3 of 13 2019 U.S. Dist. LEXIS 27215, •7 assaulting one of his coconspirators. (DE 407 at 1 2L) On September 16, 2007, Epstein's counsel provided a proposed September 15, 2007, the line prosecutor sent an email to the NPA to the Government that extended immunity from federal Epstein defense team raising concerns about a resolution that prosecution not only to Epstein, but also to certain co- would not involve one of Epstein's minor victims and stating: conspirators. (DE 407 at 1 28.) I have gotten some negative reaction to the assault charge with [a co-conspirator] as the victim, since she is On September 17, 2007, the line prosecutor wrote to defense considered one of the main perpetrators of the offenses counsel Jay Lefkowitz: "Please send [a document] to my that we planned to charge in the indictment. Can you talk home e-mail address — [redacted] and give me a call on my to Mr. Epstein about a young woman named [Jane Doe]? cell [redacted] so I can be ready for some discussions We have hearsay evidence that she traveled on Mr. tomorrow." (DE 407 at 1 29.) On September 17, 2007, Epstein's airplane when she was under 18, in around the Lefkowitz responded: "[D]o you have another obstruction 2000 or 2001 time frame. proffer I can review that you have drafted? Also, if we go that (DE 407 at 1 22.) route, would you intend to make the deferred prosecution agreement public?" (DE 407 at 30.) On September 16, 2007, the line prosecutor corresponded with Epstein's counsel about having Epstein plead guilty to On September 18. [•10) 2007, the Office responded: "A non- obstruction of justice for pressuring one of his co-conspirators prosecution agreement would not be made public or filed with not to turn over evidence or complying [•8] with a the Court, but it would remain part of our case file. It previously-served grand jury subpoena. (DE 407 at 1 23.) The probably would be subject to a FOIA request, but it is not Office also stated. "On an 'avoid the press' note, I believe that something that we would distribute without compulsory Mr. Epstein's airplane was in Miami on the day of the [co- process." (DE 407 at I 31.) On September 20, 2007, the U.S. conspirator] telephone call. If he was in Miami-Dade County Attorney's Office wrote: "On the issue about 18 USC 2255 at the time, then I can file the charge in the District Court in we seem to be miles apart. Your most recent version not only Miami, which will hopefully cut the press coverage had me binding the girls to a trust fund administered by the significantly." They also discussed having Epstein plead state court, but also promising that they will give up their guilty to a second charge of assaulting a different co- 2255 rights.... In the context of a non-prosecution agreement, conspirator. (DE 407 at I 24.) the office may be more willing to be specific about not pursuing charges against others." (DE 407 at 132.) On September 16, 2007, the line prosecutor wrote to Epstein's counsel indicating that the Office did not like the factual basis On September 21, 2007, Palm Beach County State Attorney for the proposed charges as the Office was "not investigating Barry Krischer wrote the line prosecutor about the proposed Mr. Epstein [for] abusing his girlfriend." (DE 407 at 1 25.) agreement and added: "Glad we could get this worked out for The correspondence further stated: reasons I won't put in writing. After this is resolved I would love to buy you a cup at Starbucks and have a conversation." Andy [i.e., AUSA Andrew Laurie] recommended that (DE 407 at I 33.) On September 21, 2007. the line prosecutor some of the timing issues be addressed only in the state emailed Epstein's counsel stating, "I think that the attached agreement, so that it isn't obvious to the judge that we addresses the concerns about having an unlimited are trying to create federal jurisdiction for prison number [•11] of claimed victims, without me trying to bind purposes. girls whom I do not represent." (DE 407 at 1 34.) On September 23, 2007, the U.S. Attorney's Office sent an email I will include our standard language regarding resolving to Lefkowitz stating: "It is factually accurate that the list we all criminal liability and I will mention 'co-conspirators,' are going to give you are persons we have identified as but I would prefer not to highlight for the judge all of the victims. If we did not think they were victims, they would other [•9] crimes and all of the other persons that we have no right to bring suit." (DE 407 at 1 35.) could charge. Also, we do not have the power to bind Immigration . . . there is no plan to try to proceed on any On September 24, 2007, the line prosecutor sent an e-mail to immigration charges against either Ms. [co-conspirator] a prospective representative for the Epstein victims, entitled or Ms. [coconspirator] "Conflict Check." The email confirmed the girls' status as (Ex. 7, DE 361-7.) victims, stating: "Please keep this confidential because these are minor victims. This is a preliminary list." Later on In the same email, the line prosecutor wrote to defense September 24, 2007, the line prosecutor sent an email to counsel about a meeting outside the U.S. Attorney's Office: Lefkowitz stating: "I have compiled a list of 34 confirmed "Maybe we can set a time to meet. If you want to meet 'off minors." (DE 407 at ¶ 36.) As correspondence continued on campus' somewhere, that is fine." (DE 407 at ¶ 27.) On about DAVID SCHOEN EFTA00800256  Page 4 of 13 2019 U.S. Dist. LEXIS 27215, *11 September 24, 2007, and the NPA was being executed, negotiations about whether the victims [•14] would be told Lefkowitz sent an email to the line prosecutor stating: "Marie about the NPA. (DE 407 at 'll 49.) It was a deviation from the — Please do whatever you can to keep this [Le., the NPA] Government's standard practice to negotiate with defense from becoming public." (DE 407 at l 37.) counsel about the extent of crime victim notifications. (DE 407 at ¶ 50.) On September 24, 2007, Epstein and the Office formally reached an agreement whereby the United States would defer On September 24, 2007, the Office sent an email to federal prosecution [•12] in favor of prosecution by the State Lefkowitz: of Florida. Epstein and the Office accordingly entered into a Thank you, Jay. I have forwarded your message only to NPA reflecting such an agreement. (DE 407 at 1 38.) The [United States Attorney] Alex [Acosta], Andy, and NPA provided that "the United States, in consultation with Roland. I don't anticipate it going any further than that. and subject to the good faith approval of Epstein's counsel. When I receive the originals, I will sign and return one shall select an attorney representative for [the victims], who copy to you. The other will be placed in the case file, shall be paid for by Epstein." The MIA also provided that if which will be kept confidential since it also contains any of the victims elected to bring suit under 18 U..S.C. identifying information about the girls. 2255, they must agree to waive any other claim for damages. When we reach an agreement about the attorney As part of the NPA, Epstein would not contest the jurisdiction representative for the girls, we can discuss what I can tell of the United States District Court and waived his right to him and the girls about the agreement. I know that Andy contest liability and damages. (NPA, DE 361.62.) promised Chief Reiter an update when a resolution was achieved.... Rolando is calling, but Rolando knows not to Among other provisions, the NPA expanded immunity to any tell Chief Reiter about the money issue, just about what "potential coconspirator" of Epstein's: "In consideration of crimes Mr. Epstein is pleading guilty to and the amount Epstein's agreement to plead guilty and to provide of time that has been agreed to. Rolando also is telling compensation in the manner described above, if Epstein Chief Reiter not to disclose the outcome to anyone. successfully fulfills all of the terms and conditions of this (DE 407 at 1 52.) agreement, the United States also agrees that it will not institute any criminal charges against any potential co- On September 25, 2007, the line prosecutor sent an [•15] e- conspirators of Epstein, including but not limited to Sarah mail to Lefkowitz stating: "And can we have a conference call Kellen, Adrian Ross, Lesley Groff, or Nadia Marcinkova." to discuss what I may disclose to . . . the girls regarding the (DE 407 at 193] 1 40.) The NPA also provided that: "The agreement." (DE 407 at ¶ 53.) Also on September 25, 2007, parties anticipate that this agreement will not be made part of the line prosecutor sent an email to Lefkowitz which stated in any public record. If the United States receives a Freedom of part: "They [Ted Babbitt, Stuart Grossman, Chris Searcy, Information Act request or any compulsory process [L]ake Lytal] are all very good personal injury lawyers, but I commanding the disclosure of the agreement, it will provide have concerns about whether there would be an inherent notice to Epstein before making that disclosure." (DE 407 at 1 tension because they may feel that THEY might make more 41.) money (and get a lot more press coverage) if they proceed outside the Terms of the plea agreement. (Sony — I just have From the time the FBI began investigating Epstein until a bias against plaintiffs' attorneys.) One nice thing about Bert September 24, 2007—when the NPA was concluded—the is that he is in Miami where there has been almost no Office never conferred with the victims about a NPA or told coverage of this case." (DE 407 at ¶ 54.) the victims that such an agreement was under consideration. (Marie Villafafia Decl. 1 7, DE 361.64; DE 407 at 1 43.) On September 26, 2007, the line prosecutor sent an e-mail to Many, if not all, other similarly-situated victims received Lefkowitz in which she stated: "Hi Jay — Can you give me a standard CVR4 victim notification letters substantively call at 561-1xxx-xxxxl this morning? I am meeting with the identical to those sent to Jane Doe 1 and Jane Doe 2. (DE 407 agents and want to give them their marching orders regarding at 1 44.) The Office did not consult or confer with any of the what they can tell the girls." (DE 407 at 1 55.) On September victims about the NPA before it was signed. (DE 407 at 'H 27, 2007, the attorney representative for the victims emailed 45.46.) the Office and asked whether he could get a copy of the indictment or plea agreement r 161 to find out "exactly what Epstein's counsel was aware that the Office was deliberately Epstein concedes to in the civil case." (Sept. 27, 2007 email, keeping the NPA secret from the victims and, indeed, had DE 362-2.) Upon inquiry from the Office, Lefkowitz sought assurances to that effect. (DE 407 at 1 48.) After the responded by stating that the attorney representative NPA was signed, Epstein's counsel and the Office began "certainly II should not get a copy of any indictment." (DE DAVID SCHOEN EFTA00800257  Page 5 of 13 2019 U.S. Dist. LEXIS 27215, •16 407 at 1 57.) That same day, the line prosecutor informed respective counsel in this matter." (DE 407 at 163.) Epstein's counsel of concerns raised by the attorney representative for the girls. Specifically, "Mlle concern is, if On October 24, 2007, AUSA Jeff Sloman sent a letter to Jay all 40 girls decide they want to sue, they don't want to be in a Lefkowitz, proposing an addendum to the NPA clarifying the situation where Mr. Epstein says this is getting too expensive, procedures for the third-party representative for the victims we won't pay anymore attorneys' fees." (DE 407 at 1 58.) under the NPA's compensation provisions. (DE 407 at 1 64.) On October 25, 2007, AUSA Sloman sent a letter to Retired Also on that same day, the line prosecutor sent an email to Judge Davis about selecting an attorney to represent the state prosecutors Lanna Belohlavek and Barry Krischer: "Can victims under the NPA's compensation procedure. (DE 407 at you let me know when Mr. Epstein is going to enter his guilty 165.) plea and what judge that will be in front of? I know the agents and I would really like to be there, 'incognito."' (DE 407 at 1 On about October 26 or 27, 2007, Special Agents E. Nesbitt 59.) Kuyrkendall [*19] and Jason Richards met in person with Jane Doe I. They explained that Epstein would plead guilty to On October 3, 2007, the Office sent a proposed letter that state charges, he would be required to register as a sex would have gone to a special master for selecting an attorney offender for life, and he had made certain concessions related representative for the victims under the NPA's compensation to the payment of damages. (DE 407 at 1 70.) According to procedure. The letter described the facts of the Epstein case as Jane Doe I, the Agents did not explain that the NPA had follows: "Mr. Epstein, through [*17] his assistants, would already been signed. (Jane Doe 1 Decl. 1 5, DE 361.26.) Jane recruit underage females to travel to his home in Palm Beach Doe 1's understanding was that the federal investigation to engage in lewd conduct in exchange for money. Based would continue. (Jane Doe 1 Decl. 1 6.) In contrast, Special upon the investigation, the United States has identified 40 Agent Kuyrkendall stated that the meeting with Jane Doe I young women who can be characterized as victims pursuant was to advise her of the main terms of the NPA? (Kuykendall to 18 U.S.C. S 2255. Some of those women went to Mr. Decl. 1 8, DE 403.18.) After the meeting, Special Agent Epstein's home only once, some went there as many as 100 Kuyrkendall became concerned about what would happen if times or more. Some of the women's conduct was limited to Epstein breached the NPA, and thought that if the victims performing a topless or nude massage while Mr. Epstein were aware of the NPA, the provision about monetary masturbated himself. For other women. the conduct escalated damages could be grounds for impeachment of the victims to full sexual intercourse." (DE 407 at 1 60.) and herself. (Kuykendall Decl. 1 9.) According to Special Agent Kuyrkendall, the investigation of Epstein continued On October 10, 2007, Lefkowitz sent a letter to U.S. Attorney through 2008. (Kuykendall Dec1.1 II.) Alex Acosta stating, in pertinent part: "Neither federal agents nor anyone from your Office should contact the identified In addition to Jane Doe 1, FBI agents only talked to two other individuals to inform them of the resolution of the case, victims out of the 34 identified victims about the "general including appointment of the attorney representative and the terms" of the [*20] NPA, including the provision providing a settlement process. Not only would that violate the federal civil remedy to the victims. (DE 407 at 1 76.) After confidentiality of the agreement, but Mr. Epstein also will these meetings with three victims, Epstein's defense team have no control over what is communicated to the identified complained. (DE 407 at 177.) individuals at this most critical stage. We believe it is essential that we participate in crafting mutually acceptable On about November 27, 2007, AUSA Sloman sent an e-mail communication to the identified individuals." [*18] The letter to Lefkowitz, (with a copy to U.S. Attorney Acosta) stating further proposed that the attorney representative for the that the Office had a statutory obligation to notify the victims victims be instructed that "Mlle details regarding the United about Epstein's plea to state charges that was part of the NPA: States's investigation of this matter and its resolution with Mr. The United States has a statutory obligation (Justice for Epstein is confidential. You may not make public statements All Act of 2004) to notify the victims of the anticipated regarding this matter." (DE 407 at 1 61.) upcoming events and their rights associated with the U.S. Attorney Acosta then met with Lefkowitz for breakfast agreement entered into by the United States and Mr. and Lefkowitz followed up with a letter stating, "I also want to thank you for the commitment you made to me during our October 12 meeting in which you . . . assured me that your 2 Special Agent Kuyrkendal also stated that on August 7. 2007. Jane Office would not . . . contact any of the identified individuals, Doe 1 never asked to confer with anyone from the government about potential witnesses, or potential civil claimants and their charging decisions or any resolution of the matter. (Kuykendall Decl. 1 7-) DAVID SCHOEN EFTA00800258  Page 6 of 13 2019 U.S. Dist. LEXIS 27215, *20 Epstein in a timely fashion. Tomorrow will make one that it is wholly inappropriate for your Office to send this full week since you were formally notified of the letter under any circumstances, it is certainly inappropriate to selection. I must insist that the vetting process come to issue this letter [*23] without affording us the right to review an end. Therefore, unless you provide me with a good it." (DE 407 at 1 85.) faith objection to Judge Davis's selection [as special master for selecting legal counsel for victims pursuing On about December 6, 2007, AUSA Sloman sent a letter to claims against Epstein] by COB tomorrow, November Lefkowitz stating in part: 28, 2007, I will authorize the notification of the victims. [Elach of the listed individuals are persons whom the Should you give me the go•head on [victim Office identified as victims. Mhe Office is prepared to representative] . . . selection by COB tomorrow, I will indict Mr. Epstein based upon Mr. Epstein's 'interactions' simultaneously [*21] send you a draft of the letter. I with these individuals. This conclusion is based upon a intend to notify the victims by letter after COB thorough and proper investigation - one in which none of Thursday, November 29th. the victims was informed of any right to receive damages (DE 407 at 179.) of any amount prior to the investigation of her claim. [The Office can say, without hesitation, that the On November 28, 2007, the Government sent an email to evidence demonstrates that each person on the list was a Lefkowitz attaching a letter dated November 29, 2007 (the victim of Mr. Epstein's criminal behavior. apparent date upon which it was intended to be mailed) and explained that "I am writing to inform you that the federal Finally, let me address your objections to the draft investigation of Jeffrey Epstein has been completed, and Mr. Victim Notification Letter. You write that you don't Epstein and the U.S. Attorney's Office have reached an understand the basis for the Office's belief that it is agreement containing the following terms." The proposed appropriate to notify the victims. Pursuant to the 'Justice letter then spelled out a number of the provisions in the NPA for All Act of 2004,' crime victims are entitled to: 'The including that because Epstein's plea of guilty to state charges right to reasonable, accurate, and timely notice of any was "part of the resolution of the federal investigation," the public court proceeding ... involving the crime' and the victims were "entitled to be present and to make a statement 'right not to be excluded from any such public court under oath at the state sentencing." (DE 407 at 1 80.) proceeding....' 18 U.S.C. S 377lial(2) & al. Section 3771 also commands that 'employees of the On November 29, 2007, Lefkowitz sent a letter to U.S. Department r24] of Justice . . . engaged in the Attorney Acosta objecting to the proposed victim notification detection, investigation, or prosecution of crime shall letter, stating that it is inappropriate for any letter to be sent to make their best efforts to see that crime victims are the victims before Epstein entered his plea or had been notified of, and accorded, the rights described in sentenced. Lefkowitz also told the Government that the subsection (al.' 18 U.S.C. 377116111.... victims should not be invited to the state sentencing, that they should [*22] not be encouraged to contact law enforcement With respect to notification of the other information that officials, and that encouraging the attorney representative to we propose to disclose, the statute requires that we do anything other than get paid by Epstein to settle the cases provide a victim with the earliest possible notice of: the was to encourage an ethical conflict. (DE 407 at 1 82.) status of the investigation, the filing of charges against a suspected offender, and the acceptance of a plea. 42 On about November 30, 2007, U.S. Attorney Acosta sent a U.S.C. 106071O131. Just as in 18 U.S.C. 3771, these letter to one of Epstein's defense attorneys, Kenneth Starr, sections are not limited to proceedings in a federal stating: "I am directing our prosecutors not to issue victim district court. Our Non-Prosecution Agreement resolves notification letters until this Friday at 5 p.m., to provide you the federal investigation by allowing Mr. Epstein to with time to review these options with your client." The letter plead to a state offense. The victims identified through also explained that the line prosecutor had informed U.S. the federal investigation should be appropriately Attorney Acosta "that the victims were not told of the informed, and our Non-Prosecution Agreement does not availability of Section 2255 relief during the investigation require the U.S. Attorney's Office to forego its legal phase of this matters' despite the fact that the "[r]ule of law ... obligations. [T]he Office believes that it has proof now requires this District to consider the victims' rights under beyond a reasonable doubt that each listed individual this statute in negotiating this Agreement." (DE 407 at 1 83.) was a victim of Mr. Epstein's criminal conduct while the On December 5, 2007, Starr sent a letter to U.S. Attorney victim was a minor. The law requires us to treat all Acosta (with copy to AUSA Sloman) asking about issuance victims "with fairness and with respect for the victim's of victim notification letters and stating: "While we believe dignity and privacy." 18 U.S.C. 3771(aHla DAVID SCHOEN EFTA00800259  Page 7 of 13 2019 U.S. Dist. LEXIS 27215, *24 The letter included a footnote 1.25] slating: "Unlike the given an opportunity to cooperate with the investigation.; State's investigation, the federal investigation shows criminal (Jane Doe 2 Dec1.1I 13-14, DE 361-27.) conduct by Mr. Epstein at least as early as 2001, so all of the victims were minors at the time of the offense." (DE 407 at 1 On March 19, 2008, the line prosecutor sent a lengthy email 83.) to a prospective pro bono attorney for one of Epstein's victims who had been subpoenaed to appear at a deposition. The On December 7, 2007, defense attorney Lilly Ann Sanchez email listed the attorneys representing Epstein, the targets of sent a letter to AUSA Sloman, requesting "that the Office the investigation, and recounted in detail the investigation that hold off on sending any victim notification letters." No letters had been conducted to that point. The email did not reveal the were sent in December of 2007. (DE 407 at I 88.) On fact that Epstein had signed the NPA in September 2007. (DE December 13, 2007, the line prosecutor sent a letter to 407 at 1 98.) Lefkowitz stating that "You raised objections to any victim notification, and no further notifications were done." (DE 407 On May 30, 2008, Jane Doe 5, who was recognized as an at I 89.) On December 19, 2007, U.S. Attorney Acosta sent a Epstein victim by the Office, received a letter from the FBI letter to Lilly Ann Sanchez stating, "I understand that the advising her that "[t]his case is currently under investigation. defense objects to the victims being given notice of time and This can be a lengthy process and we request your continued place of Mr. Epstein's state court sentencing hearing. We patience while we conduct a thorough investigation." (DE 407 intend to provide victims with notice of the federal resolution, at 1 99.) The May [•28] 30, 2008 victim letter to Jane Doe 5 as required by law. We will defer to the discretion of the State also acknowledged the victims' rights under the CVRA . (DE Attorney regarding whether he wishes to provide victims with 407 at I 100.) notices of the state proceedings. (DE 407 at 990.) In mid-June of 2008, Mr. Bradley Edwards, the attorney for In January of 2008, any requirement that Epstein carry out his Petitioners, contacted the line prosecutor to inform her that he obligations under the NPA was 1.26] delayed while he represented Jane Doe 1 and, later, Jane Doe 2. Edwards asked sought higher level review within the Justice Department. to meet to provide information about the federal crimes (DE 407 at 1 92.) On January 10, 2008, Jane Doe 1 and Jane committed by Epstein against these victims. The line Doe 2 were sent victim notification letters from the FBI prosecutor and Edwards discussed the possibility of federal advising them that "[t]his case is currently under charges being filed in the future. Edwards was led to believe investigation. This can be a lengthy process and we request federal charges could still be filed, with no mention your continued patience while we conduct a thorough whatsoever of the existence of the NPA or any other possible investigation." (DE 407 at 1 93.) The January 10, 2008 resolution to the case (DE 407 at I 101.) notification letters did not disclose that the Jane Doe 1 and At the end of the call, the line prosecutor asked Edwards to Jane Doe 2 case in the Southern District of Florida was the send any information that he wanted considered by the Office subject of the NPA entered into by Epstein and the Office, or in determining whether to file federal charges. The line that there had been any potentially binding resolution. (DE prosecutor did not inform Edwards about the NPA. (DE 407 407 at 1 94.) Other victims received the same letters as sent to at I 102.) On June 19, 2008, Edwards sent an email to the line Jane Doe I and Jane Doe 2. (DE 407 at I 95.) prosecutor requesting to meet and discuss plans. (DE 407 at I According to the declaration of Jane Doe I, she believed that 103.) criminal prosecution of Epstein was important and she wanted to be consulted by prosecutors before any resolution. Based on the letters received, she believed the Government would contact her before reaching any final resolution. (Jane Doe I 1The Government believed that a negotiated resolution was in the best interest of the Office and the victims as a whole based on Decl. 1 9.) On January 31, 2008, Jane Doe I met with FBI information obtained from the victims and the agents assigned to the Agents and an AUSA from the U.S. Attorney's Office. She case. (Villafaila Decl. 1 19.) The Government also believed that provided additional details [x'27] of Epstein's sexual abuse of Epstein was trying to set aside the NPA and therefore the her. The AUSA did not disclose to Jane Doe I at this meeting Government needed to be prepared for a prosecution. (Villafaila that they had already negotiated a NPA with Epstein. (DE 407 Decl. 1 34.) Petitioners object to this evidence, claiming the at 1 97.) According to the declaration of Jane Doe 2, while Government previously claimed work product and similar she recognizes she did not initially help the investigation, she protections over internal materials. Given that the Court is ruling in later tried to cooperate with the investigation but was never favor of Petitioners on the present motions, the Court need not address this issue. To the extent it might have an impact on future rulings. Petitioners may reassert this argument if and when appropriate. DAVID SCHOEN EFTA00800260  Page 8 of 13 2019 U.S. Dist. LEXIS 27215, *28 On June 23, 2008, the line prosecutor sent an email to blocking the prosecution of her case, she would have attended Lefkowitz stating that the Deputy Attorney General had and tried to object to the judge to prevent that plea from going completed his review of the Epstein matter [*29] and forward. (Jane Doe I Decl. 1 13.) According to the line "determined that federal prosecution of Mr. Epstein's case prosecutor, Edwards did not tell her that Jane Doe 1 wanted to [vials appropriate. Accordingly, Mr. Epstein ha[d] until the meet with her before a resolution was reached. (Villafarta close of business on Monday, June 30, 2008, to comply with Dec1.1 37, DE403-19.) the terms and conditions of the agreement between the United States and Mr. Epstein." (DE 407 at ¶ 105.) On July 3, 2008, as specifically directed by the Office. Edwards sent a letter to the Office communicating the wishes On or about June 27, 2008, the Office called Edwards to of Jane Doe I. Jane Doe 2, and Jane Doe 5 that federal provide notice to his clients regarding the entry of Epstein's charges be filed against Epstein: "We urge the Attorney guilty plea in state court. (DE 407 at 1 107.) According to General and our United States Attorney to consider the Edwards. the line prosecutor only told him that Epstein was fundamental import of the vigorous enforcement of our pleading guilty to state solicitation of prosecution. He was not Federal laws. We urge you to move forward with the told that the state plea was related to the federal investigation traditional indictments and criminal prosecution or that the state plea would resolve the federal crimes. commensurate with the crimes Mr. Epstein has committed, Edwards claims he was not told his clients could address the and we further urge you to take the steps necessary to protect state court. (Edwards Decl. '] 117-18, DE 416-1.) In contrast, our children from this very dangerous sexual predator." I*321 the line prosecutor claims she told Edwards that his clients (DE 407 a