034.pdf

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, CASE NO.: 08-CV-80119-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ JANE DOE NO. 3, CASE NO.: 08-CV-80232-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ JANE DOE NO. 4, CASE NO.: 08-CV-80380-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ JANE DOE NO. 5, CASE NO.: 08-CV-80381-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ Case 9:09-cv-80591-KAM Document 34 Entered on FLSD Docket 05/29/2009 Page 1 of 17 -2- JANE DOE NO. 6, CASE NO.: 08-CV-80994-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ JANE DOE NO. 7, CASE NO.: 08-CV-80993-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ C.M.A., CASE NO.: 08-CV-80811-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ JANE DOE, CASE NO.: 08-CV-80893-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN et al, Defendants. ____________________________________/ Case 9:09-cv-80591-KAM Document 34 Entered on FLSD Docket 05/29/2009 Page 2 of 17 -3- DOE II, CASE NO.: 09-CV-80469-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN et al, Defendants. ____________________________________/ JANE DOE NO. 101, CASE NO.: 09-CV-80591-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ JANE DOE NO. 102 CASE NO.: 09-CV-80656-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN, Defendant. ____________________________________/ UNITED STATES’ RESPONSE TO COURT’S ORDER REQUESTING POSITION ON DEFENDANT’S MOTION TO STAY [DE 99] Comes now the United States, by and through the undersigned Assistant United States Attorney, and files this response to the Court’s Order requesting the position of the United States on Defendant Jeffrey Epstein’s Motion to Stay Proceedings [DE 99]. For the reasons set forth below, it is the United States’ position that a stay of the proceedings is not necessary and was not contemplated by the Non-Prosecution Agreement between the United States and Defendant Jeffrey Epstein. Case 9:09-cv-80591-KAM Document 34 Entered on FLSD Docket 05/29/2009 Page 3 of 17 -4- ISSUE PRESENTED The United States is not a party to these lawsuits and, accordingly, is not fully aware of the scope of the proceedings, the range of arguments presented by counsel, and any correspondence or oral communications between the parties in these civil suits. Based on the information presented by the Court and a review of Defendant Jeffrey Epstein’s Motion to Stay and/or Continue Action for Time Certain Based on Parallel Civil and Criminal Proceedings with Incorporated Memorandum of Law (Court File No. 08-CV-80811- MARRA/JOHNSON DE 51-1), and responses thereto filed by various plaintiffs in their suits, the undersigned understands that the Court has requested the position of the United States on the following issue: Are there “special circumstances” that require the imposition of a stay of the civil proceedings in the “interests of justice” until the “expiration” of the Non- Prosecution Agreement [“NPA”] between the United States and Epstein? By filing this response, the United States does not make itself a party to this litigation and takes no position with respect to the outcome of any of the civil suits; nor does the United States take any position regarding Defendant Epstein’s performance of his obligations pursuant to the NPA. The United States also declines to comment on Defendant Epstein’s representations regarding past allegations of violations of the NPA by Epstein. The United States files this response solely as amicus curiae at the Court’s request and does not waive any procedural or statutory bars to suit. Case 9:09-cv-80591-KAM Document 34 Entered on FLSD Docket 05/29/2009 Page 4 of 17 -5- I. STANDARD FOR IMPOSING A DISCRETIONARY STAY A. The Defendant Must Show that the Assertion of His Fifth Amendment Privilege Against Self-Incrimination Would Automatically Result in the Entry of Summary Judgment Against Him. “The decision whether or not to stay civil litigation in deference to parallel criminal proceedings is discretionary. . . . A movant must carry a heavy burden to succeed in such an endeavor.” Microfinancial, Inc. v. Premier Holidays Internat’l, Inc., 385 F.3d 72, 77 (1st Cir. 2004) (citations omitted). When a defendant facing possible criminal liability invokes his Fifth Amendment right against compelled self-incrimination in connection with civil litigation, a court can stay discovery or the entire civil case. Diaz v. Jenne, 2007 WL 624286 *1 (S.D. Fl. Feb. 23, 2007) (Cooke, J.). “However, ‘the Constitution does not require a stay of civil proceedings pending the outcome of related criminal proceedings. Forcing an individual to risk non-criminal disadvantage by remaining silent for fear of self incrimination in a parallel criminal proceeding does not rise to the level of an unconstitutional infringement.’” Id. (quoting Shell Oil Co. v. Altina Assocs., Inc., 866 F. Supp. 536, 540 (M.D. Fl. 1994)). As this Court has previously explained: The law regarding stays of civil actions is well-settled in the Eleventh Circuit. In United States v. Lot 5, Fox Grove, Alachua County, Fla, 23 F.3d 359, 363- 65 (11th Cir. 1994) (“Lot 5"), the Court articulated the following principles of law with respect to a stay of a civil action pending resolution of a related criminal action: [A] blanket assertion of the privilege is an inadequate basis for the issuance of a stay. Rather, a court must stay a civil Case 9:09-cv-80591-KAM Document 34 Entered on FLSD Docket 05/29/2009 Page 5 of 17 1 It appears from a brief review of some of Epstein’s discovery responses that Epstein has made a blanket assertion of the privilege. For example, Epstein has asserted his Fifth Amendment privilege in response to a plaintiff’s request to produce the NPA and the United States’ list of identified victims although these documents were provided to Epstein by the United States. -6- proceeding pending resolution of a related criminal prosecution only when “special circumstances” so require in the “interests of justice.” The court may deny a stay so long as the privilege’s invocation does not compel an adverse judgment against the claimant. . . . [T]he standard set by the Eleventh Circuit as to when a stay should be granted to prevent unconstitutional infringement is more narrow. The law in the Eleventh Circuit requires consideration of whether, as a result of invoking the privilege, the defendant faces certain loss of the civil proceeding on summary judgment if the civil proceeding were to continue. Lot 5, 23 F.3d at 364; Pervis v. State Farm Fire & Casualty Co., 901 F.2d 944 (11th Cir. 1990). Under this standard, Movants must show that invocation of the privilege in the instant matter will result in certain loss by automatic summary judgment. United States v. Two Parcels of Real Property, 92 F.3d 1123, 1129 (11th Cir. 1996); Pervis, 901 F.2d at 946-47. This must be an actual adverse judgment, and not “merely the loss of the defendant’s most ‘effective defense.’” Securities & Exchange Comm. v. Incendy, 936 F. Supp. at 955 (S.D. Fl. 1996); Shell Oil Co., 866 F. Supp. at 540-41. Court-Appointed Receiver of Lancer Mgt. Group LLC v. Lauer, 2009 WL 800144 (S.D. Fl. Mar. 25, 2009) (Marra, J.). Thus, before reaching the relative benefit and prejudice to each of the parties caused by staying the cases, the Court must determine whether, if defendant Epstein were to invoke his Fifth Amendment