EFTA00103908.pdf

JSRsEPS1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK x UNITED STATES OF AMERICA, 4 v. 19 CR 490 (RMB) 5 JEFFREY EPSTEIN, 6 Defendant. 7 x 8 New York, N.Y. August 27, 2019 9 10:30 a.m. 10 Before: 11 HON. RICHARD M. BERMAN, 12 District Judge 13 14 APPEARANCES 15 GEOFFREY S. BERMAN United States Attorney for the 16 Southern District of New York BY: 17 Assistant United States Attorneys 18 MARTIN G. WEINBERG, PC 19 Attorney for Defendant BY: MARTIN G. WEINBERG 20 STEPTOE & JOHNSON, LLP 21 Attorneys for Defendant BY: REID WEINGARTEN 22 MICHAEL MILLER 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103908  JaRsEPS1 (Case called) THE COURT: Good morning, everybody. Please be seated. 4 So just some housekeeping. We have a podium here for 5 both attorneys and others who may be speaking, and so we would 6 like you, attorneys and others who are speaking, to come up to 7 the podium. This room is a little cavernous. We thought the 8 podium over there would be more comfortable. 9 For starters, and for this you don't have to go up to 10 the podium, if you could just indicate your names. This table 11 in front to my left, your right, are defense counsel, and that 12 table to my right, your left, are government attorneys. 13 If we could just ask the attorneys to introduce 14 themselves. 15 MS. : Good morning, your Honor. 16 and for the government. Joining us at counsel table 17 are Special Agent of the FBI and Detective 18 of the NYPD. 19 MR. WEINGARTEN: Good morning, your Honor. 20 Reid Weingarten. 21 MR. WEINBERG: Martin Weinberg. 22 Good morning, your Honor. 23 THE COURT: Good morning. 24 MR. MILLER: Good morning, your Honor. 25 Michael Miller from Steptoe & Johnson on behalf of the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103909  J8RsEPS1 defendant. THE COURT: Great. Again, good morning to all of you. This hearing that 4 we're having today considers the government's motion to dismiss 5 the indictment in this case. 6 I must add that it also serves as the opportunity for 7 me to thank all of you, the attorneys and the victims who are 8 here today, among others, for your very hard work and 9 dedication in this case. 10 We also have here today the U.S. Attorney for the 11 Southern District of New York, Geoffrey Berman, who has also 12 been very helpful and indispensable in this matter. 13 The news on August 10, 2019, that Jeffrey Epstein had 14 been found dead in his cell at the Metropolitan Correctional 15 Center, at the MCC, was certainly shocking. Most of you, and 16 myself for that matter, were anticipating that the next steps 17 in this case would be defense motion practice, including a 18 motion to dismiss, followed by a trial on the merits before a 19 jury, if the motions were not successful, and through which the 20 accusers and the accused would come face to face, allowing 21 everyone to get their day in court. Mr. Epstein's death 22 obviously means that a trial in which he is a defendant cannot 23 take place. It is a rather stunning turn of events. 24 The government's motion to dismiss the indictment 25 because of Jeffrey Epstein's death on August 10, 2019, is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103910  J8RsEPS1 relatively straightforward. In my view, a public hearing clearly is nevertheless the preferred vehicle for its resolution. 4 Incidentally, while I'm on this subject, I got some 5 help today from the New York Law Journal from two professors 6 who write that a hearing is -- let me tell you exactly what 7 they said. They say, in part, that this is an odd moment for 8 transparency in a criminal case. I think that is an odd 9 sentence to hear about, transparency in a criminal case. 10 They go on to say that normally, if a prosecutor seeks 11 to dismiss an indictment for such an obviously worthy reason, 12 the court would simply grant the request. As to that 13 statement, I respectfully say it is incorrect as a matter of 14 law. 15 They go on to say the judge would not schedule a 16 hearing and he definitely would not allow the victims to speak. 17 If he did hold a hearing, whatever informational interests the 18 victims may have would be served by affording them a chance to 19 attend the hearing, not by giving them a speaking role. 20 I read it. It was incredulous. I'm still 21 incredulous. I don't quite understand at all. There is a 22 suggestion in the article that the reason they are making these 23 suggestions has to do with minimization of drama in this case. 24 In the Jeffrey Epstein case, there has not been much a 25 minimization of drama, and what little drama might happen SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103911  J8RsEPS1 today, I don't think it would be very significant. On a somewhat more serious note, don't quote me on this, but it is my understanding that one of the authors of 4 that article is himself counsel in one of the Epstein-related 5 cases. I was surprised to learn that very recently. I'm 6 certain it is true. I was also surprised that that aspect was 7 not disclosed in the Law Journal. 8 But in any event, I think you know where I'm heading. 9 I respectfully disagree with the Law Journal piece. I was 10 saying that the government's motion is relatively 11 straightforward, and in my view, a public hearing is clearly, 12 nevertheless, the preferred vehicle for its resolution. I'm 13 still convinced of that. 14 A few may differ on this, but public hearings are 15 exactly what judges do. Hearings promote transparency and they 16 provide the court with insights and information which the court 17 may not otherwise be aware of. 18 The victims have been included in the proceeding today 19 both because of their relevant experiences and because they 20 should always be involved before rather than after the fact. 21 Indictment 19 CR 490 charges Jeffrey Epstein with sex 22 trafficking and with conspiracy to commit sex trafficking. The 23 U.S. Attorney, on August 19, 2019, requested that the court 24 approve the government's proposed order of nolle prosequi. 1 25 think that's a rough justice. That means nolle prosequi, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103912  J8RsEPS1 discontinuance by the prosecutor of all or of a part of the case that he or she has commenced. The government in its motion concludes that Epstein's 4 death abates these proceedings. In accordance with Federal 5 Rule of Criminal Procedure 57(b), I determined to hold a public 6 hearing and I notified the victims that they would be given the 7 opportunity to be heard before any final action on the motion. 8 That is the purpose also of today's proceeding. I would do 9 that every time. 10 Also, recognized that Epstein, Mr. Epstein died before 11 any judgment of conviction against him had been obtained, and 12 that the government's proposed order appears, in form and 13 substance, to be appropriate. 14 Federal Rule of Criminal Procedure 48(a) codifies the 15 nolle prosequi process. It is entitled dismissal, and it 16 states in relevant part that the government may, with leave of 17 the court, dismiss an indictment, information, or complaint, 18 and that leave of the court proviso, you should know, was added 19 as an amendment to the original draft of Rule 48, which had 20 originally provided for automatic dismissal upon the motion of 21 the government. 22 This proviso, in my judgment, is clearly directed 23 toward an independent judicial assessment of the public 24 interest in dismissing the indictment. Thus, even whereas, in 25 this case, the standard of court review is deferential, the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103913  J8RsEPS1 court must still make its own independent determination. A conclusory statement from the government that dismissal is appropriate does not satisfy the court's obligations. 4 It is also, in my view, required that the court 5 consider the views of the victims in the case at the hearing 6 and before deciding whether to grant the motion. This is being 7 done here both as a matter of law and as a measure of respect 8 that we have for the victims' difficult decisions to come 9 forward in this matter. 10 In a case called United States v. Heaton, 11 H-e-a-t-o-n-, the government filed a Rule 48 motion for leave 12 to dismiss a charge against a defendant who allegedly committed 13 a sexual offense against a young victim. Although I should 14 point out, very importantly, that that defendant was still 15 alive, which distinguishes it from our case. 16 Nevertheless, I think it is irrelevant because in 17 evaluating the Rule 48 motion, then district Judge Paul G. 18 Cassell -- who is now a law professor at the University of Utah 19 and is regarded to be a noted expert in victims' rights -- 20 concluded that under the Crime Victims' Rights Act, victims 21 have broad rights that extend to a court's decision whether to 22 grant a government motion to dismiss under Rule 48. 23 I completely share that viewpoint in these 24 circumstances, even though the facts of our case, as I said, 25 are somewhat different from those in Heaton. I believe it is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103914  8 J8RsEPS1 the court's responsibility, and manifestly within its purview, to ensure that the victims in this case are treated fairly and with dignity. 4 The fundamental substantive principle which applies in 5 considering the government's motion is termed the rule of 6 abatement. This principle originated in the English common 7 law. It was adopted by most U.S. federal courts, but more 8 recently, it has faced some appropriate criticism. The rule of 9 abatement is best explained in the Second Circuit case of 10 U.S. v. Wright. 11 In that Wright case, two defendants had pled guilty to 12 embezzlement and tax evasion. Both defendants appealed, but 13 one of the defendants died while his appeal was pending in the 14 Second Circuit. The Court of Appeals rule that under the rule 15 of abatement, the judgment of conviction against the deceased 16 defendant was required to be vacated and the indictment was to 17 be dismissed. The Wright court held that when a convicted 18 defendant dies while his direct appeal as of right is pending, 19 his death abates not only the appeal, but also proceedings had 20 during the course of the prosecution. 21 The Second Circuit incidentally has also held that 22 when a criminal conviction abates upon the death of a 23 defendant, any restitution ordered as a result of that 24 conviction must also abate, and it is also ruled the same with 25 respect to associated forfeiture orders. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103915  J8RsEPS1 This latter application of the rule of abatement regarding forfeiture has not been universally accepted among federal courts, but it certainly is the law in this circuit. 4 Some of you may be interested to know that some United States 5 courts, state courts, have criticized the rule of abatement, 6 particularly in the face of growing recognition of victims' 7 rights in the criminal justice system, including the Crime 8 Victims' Rights Act. 9 It has been written and contended in the Brooklyn Law 10 Review -- I can give you the cite later -- that when courts 11 abate criminal convictions, they reimpose a burden on victims 12 that legislatures intended to alleviate through these victim 13 rights statutes. The state Supreme Court has even concluded 14 that the expansion and codification of victims' rights provides 15 the changed conditions needed for overruling the rule of 16 abatement. It has also been stated that Alaska's statute and 17 its constitution now require the criminal justice system to 18 accommodate the rights of crime victims. Further, that the 19 abatement of criminal convictions has important implications 20 for these rights. 21 But coming back to our case, which is what you are 22 concerned about and I am as well, it is appropriate to conclude 23 that if the rule of abatement applies to a convicted defendant 24 as in the Wright case, it should also apply a fortiori in the 25 Epstein case, which was still in the pretrial phase when SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103916  IC J8RsEPS1 Mr. Epstein died, when there had been no conviction. So that's just some background I wanted to share with you. At this point in time, I would like to turn to the 4 government prosecutors to hear from them in support of their 5 Rule 48 application to dismiss the Epstein indictment. 6 MS. : Thank you, your Honor. 7 Would you like me to address the court from the 8 podium? 9 THE COURT: If you wouldn't mind. 10 MS. : Thank you, your Honor. 11 I believe your Honor has accurately summarized the 12 state of the law, as set forth in our papers, in light of the 13 clear Second Circuit law, that upon the death of a defendant 14 before a final entry of a judgment of conviction, all 15 proceedings must be abated. 16 In light of that clear law, the government is legally 17 obligated to seek dismissal of the pending indictment against 18 Jeffrey Epstein, and we respectfully submit, likewise, that the 19 entry of the proposed order is similarly required by law. 20 A few notes to make about that, though, your Honor. 21 To be very clear, dismissal of this indictment as to Jeffrey 22 Epstein in no way prohibits or inhibits the government's 23 ongoing investigation into other potential coconspirators, nor 24 does it prevent the bringing of a new case in the future or the 25 prosecution of new defendants. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103917  J8RsEPS1 It also does nothing to prevent the government from continuing to explore the possibility of seeking civil forfeiture of any assets that were used to facilitate the 4 crimes charged in this indictment. Indeed, as has been stated 5 publicly, investigations into those matters have been ongoing, 6 remain ongoing, and will continue following dismissal of the 7 indictment here. 8 I would also like to note that, as the government has 9 previously mentioned, this dismissal in no way lessens the 10 government's resolve to stand up for the victims in this case, 11 both those who have come forward and those who have yet to do 12 so. We agree with your Honor's sentiment that those victims 13 should be respected, and we appreciate your Honor's recognition 14 of that. 15 One housekeeping matter that I did want to reference 16 for your Honor. The protective order in this case requires 17 destruction or return of any and all discovery material upon 18 conclusion of the case. We have been in communication with 19 defense counsel, who have confirmed that they have returned all 20 physical copies that they have of discovery that the government 21 has produced to date, and they are in the process of deleting 22 any copies that they may have made. So the parties are in 23 compliance with the protective order. 24 Finally, I just wanted to say a word about the victims 25 in this case, and particularly those who are here in court SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103918  12 J8RsEPS1 today. I'll note that in light of the court's order indicating that the victims and their counsel would be permitted to be heard in court here today, the government has endeavored to 4 provide notice to all known victims of today's proceeding. We 5 did so either directly where a victim was not represented by 6 counsel or through counsel where a victim is represented by an 7 attorney. 8 The government does not know exactly how many victims 9 or their attorneys are here today and we do not know how many 10 of them or their counsel would like to speak. To the extent 11 any individuals do wish to speak, we do not know the substance 12 of what they would like to say. We have left that entirely up 13 to the individual decisions of the victims and their attorneys. 14 I will note, though, that throughout this case, the 15 government has endeavored and done our utmost to fulfill our 16 obligations under the Crimes Victims' Rights Act. We have done 17 so by trying to keep as many victims as we are aware of up to 18 date about the ongoing case and about any developments in the 19 case. 20 We will continue to provide services and offer 21 services to any of the victims in this case, even after the 22 indictment is dismissed. Both the U.S. Attorney's office and 23 the FBI have been in touch with all known victims or have 24 attempted to be in touch with all known victims, either again 25 directly where victims are not represented by counsel or SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103919  13 J8RsEPS1 through counsel where they have attorneys. We have expressed to them that services are available for those who wish to take advantage of them. 4 Unless the court has any questions for me, the 5 government will otherwise rest on its papers. 6 THE COURT: I just have one question. 7 The protective order, is that self-executing or do 1 8 need to do something? 9 MS. : It is self-executing, your Honor. 10 THE COURT: Thanks very much, Ms. 11 MS. : Thank you, your Honor. 12 THE COURT: Yes. 13 I'll turn to counsel for the defense at this time. 14 Mr. Weingarten, I'm happy to hear from you. 15 MR. WEINGARTEN: Thank you. 16 Your Honor, I think it is an understatement of the 17 year to say the world looks and feels differently today than it 18 did the last time I was before you. For us, the elephant in 19 the room is what happened to our client. I would like to tell 20 you how we see the world and where we are on that subject. 21 We start with the Attorney General's statements, 22 public statements, that there were very serious improprieties 23 in the jail. We obviously read the press. We see that the 24 warden has been taken out. We see that the guards on duty at 25 the time have been put on leave. We understand guards are SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103920  11 JaRsEPS1 refusing to cooperate with the investigation. We have heard allegations that people at the time who had responsibility for protecting our client falsified information. We understand 4 that there were orders out there that Jeffrey Epstein was never 5 to be left alone and that the orders were ignored by many of 6 the employees of the prison. 7 In a word, yikes. In addition, obviously we followed 8 the medical examiner's report, or we haven't followed the 9 report, we haven't seen it, but heard conclusions, initially 10 not enough evidence to come to a conclusion, wanted to see 11 more. We assumed she was talking about the videotapes, but 12 then came to the conclusion that it was suicide. 13 We report to the court that -- 14 THE COURT: Suicide by hanging -- 15 MR. WEINGARTEN: Yes. 16 THE COURT: -- was her conclusion? 17 MR. WEINGARTEN: Yes. 18 And we report to the court that we had a doctor there 19 at the time, and we also have been in receipt of a tremendous 20 amount of medical and scientific evidence volunteered to us 21 opining that the injuries suffered, as reported, were far more 22 consistent with assault than with suicide, and we are happy to 23 supply the court with all the information that we have. 24 Now, in addition, as the court noted, we were underway 25 with our pretrial motions, and as the court obviously SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103921  15 J8RsEPS1 understands, the NPA and the role of the NPA was going to be critically important. And I would simply like to report that we went pretty far along. 4 We interviewed all of the relevant lawyers on the 5 defense side who participated in the NPA, and we were satisfied 6 that we had a very strong argument that every one of those 7 lawyers believed with an objective basis that the deal was 8 global. That is, at the time -- 9 THE COURT: I'm sorry, that? 10 MR. WEINGARTEN: The deal of the NPA was global. That 11 is, more specifically, at the time, the Florida prosecutors and 12 agents knew of conduct in New York, and that no competent 13 defense counsel negotiating in good faith with the prosecutors 14 would have ever agreed to a deal back then that allowed New 15 York prosecutors to indict for precisely the same conduct in 16 the future, which, of course, is what happened. 17 In addition, we have come up with very powerful 18 evidence, we believe, that Florida prosecutors, who 19 participated in the deal, steered the victims and the alleged 20 victims to New York on more than one occasion because they did 21 not want to suffer the sleights of attacks against them. So we 22 have advanced the ball on this very subject and we are prepared 23 to completely report to the court as to where we are and what 24 we've done. 25 Another point. We obviously had contact with our SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103922  16 J8RsEPS1 client at or around the time of his death, and obviously the attorney-client privilege survives death and we are not going to forfeit the privilege, but we will report to the court, with 4 as much specificity as the court may want, that at or around 5 the time of his death, we did not see a despairing, despondent 6 suicidal person. Details to follow, if the court wishes. 7 The 800-pound gorilla, for us, of course, are the 8 video surveillance tapes. Obviously we assume there is a tape 9 that leads directly to the door where Jeffrey Epstein was 10 housed. If that tape reports for 12 hours before his death 11 that no one went in and out of that room, then the suggestion 12 that there was something other than a suicide seems 13 preposterous. 14 But there is no such evidence that has surfaced to 15 date. Just the opposite. We have heard, and we actually read 16 in the press, that the tapes were either corrupted or not 17 functioning. Talk about a yikes. If, in fact, the system was 18 broken for six months before Jeffrey Epstein was housed, I 19 mean, that would be stunning incompetence. If it was allowed 20 to continue to be inoperative when Jeffrey Epstein was housed, 21 it would be incompetence times ten. But what if the tapes only 22 broke down or were inoperative or were corrupted on the day he 23 was killed or the day he died? Then we're in a completely 24 different situation. 25 So where does this lead? I think where it leads, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103923  17 J8RsEPS1 Judge, is there are incredibly important questions that remain open. The public interest in this matter is obvious from this courtroom. There are conspiracy theories galore. We are all 4 for finding the truth. We believe this court has an 5 indispensable role to play. 6 Whether or not this indictment is dismissed, I think 7 this court has the inherent authority to find out what happened 8 on its watch. Obviously, when the court detained Jeffrey 9 Epstein, the court did not anticipate that weeks later he would 10 be dead in his cell. I think given the inherent authority of 11 the court, the court should make inquiry. 12 This could come in many forms. Obviously the court 13 made inquiry as to what happened in the first incident. When 14 there was an allegation of an attempted suicide, the court made 15 inquiry. The court obviously was interested. 16 I recall your language. You talked about that being 17 one of the several open questions indicating an interest on the 18 court for the others as well. Obviously, the ultimate question 19 is what happened to the client. 20 THE COURT: You're talking about the July 23, 2019 21 incident? 22 MR. WEINGARTEN: Yes. 23 The court obviously could hold hearings. The court 24 could assign a lawyer to help the court. I think this is an 25 area where there is intense public interest. We have complete SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103924  18 J8RsEPS1 confidence in the prosecutors in the Southern District and the FBI to do a competent investigation. But these are allegations against serious components of the United States Department of 4 Justice. Sometimes the appearance of justice is just as 5 important as justice itself. 6 I think the court supervising, or at least keeping an 7 interest in this proceeding, is incredibly important for the 8 public to have confidence in the ultimate findings, and 9 certainly for us to have confidence in the ultimate findings. 10 One more issue, Judge. The conditions of the jail, in 11 a word, they were dreadful. Not just for Jeffrey Epstein, but 12 for many of the prisoners over there. This is a prison within 13 the shadows of this courthouse. The situation is rife with 14 vermin. The abuse and the conditions in that prison, in a 15 word, are a disgrace and everybody knows it. 16 A person with authority told us, someone with 17 knowledge, that the prisoners in Guantanamo -- and he spoke 18 with personal knowledge -- are treated better than the 19 prisoners right across the way. The feds certainly know how to 20 run a disciplined, clean prison. I've been in 20 of them. 21 They know how to do it just fine. And the question is, why in 22 the world does it not happen down the road? I think that is a 23 perfectly legitimate subject for the court to make inquiry. 24 In a word, we want the court to help us find out what 25 happened. The court has a role to play. It is the institution SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103925  19 J8RsEPS1 that most people have confidence in in these very troubled times. So whether or not you dismiss the indictment, to us, 4 is beside the point. We want you to stay on the case, we want 5 you to conduct an investigation, and we want to know what 6 happened here. 7 Thank you, your Honor. 8 THE COURT: Just so it is clear, so your view on the 9 motion directly on its merits of the nolle prosequi order and 10 application by the U.S. Attorney, do you have a view on that? 11 MR. WEINGARTEN: I think if the court felt that the 12 case had to stay alive for the court to continue, we would 13 oppose it. I think -- 14 THE COURT: I'm sorry, if what? 15 MR. WEINGARTEN: If the issue, if you took the 16 position for you to conduct the investigation or lead the 17 investigation or participate in the investigation, then we 18 want, the role we want you to play, if the indictment has to be 19 alive, we would oppose the motion. 20 I don't think you need to do that. I think you can 21 dismiss the indictment. 22 THE COURT: So you're suggesting that you support the 23 government's motion, just viewed in the context of -- 24 MR. WEINGARTEN: Yes, of course. 25 THE COURT: Great. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103926  20 J8RsEPS1 MR. WEINBERG: Judge, if I can just supplement? THE COURT: Absolutely. MR. WEINBERG: Thank you, sir. 4 Thank you, as an out-of-town lawyer for the privilege 5 to appear in front of you, your Honor. 6 THE COURT: It's my pleasure. 7 MR. WEINBERG: First, as to the conditions, we think 8 your Honor trusted the government, the Bureau of Prisons, to 9 keep our client safe and keep him in civilized conditions. The 10 government will again ask, as to other defendants, that they be 11 detained at the MCC, some subset of them will end up in the SHU 12 unit. 13 It is a horrific. I've called it medieval. There's 14 vermin on the floor. There is wet from the plumbing. There is 15 no sunlight. There is limited exercise. It is simply 16 conditions that no pretrial detainee -- and I would go farther 17 as a criminal defense lawyer -- no United States defendant 18 should be subjected to. 19 Certain judges have taken views of the conditions. We 20 would urge your Honor, the government talks about and we talk 21 about transparency, to see what kind of conditions there exist 22 within 50 or 100 yards of one of the great United States 23 district courts. 24 Second, in terms, we have a profound problem with the 25 conclusions of the medical examiner. There are for three SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103927  J8RsEPS1 reasons, your Honor. One is the timing of Mr. Epstein's demise. It was on August 10. On August 12, a bail pending appeal motion was 4 being filed in the Second Circuit. On August 12 or 13, the 5 United States Attorneys were going to respond to our request 6 for the preservation and production of documents that would 7 have facilitated and furthered our efforts to demonstrate 8 communications between the Southern District of Florida, the 9 Northern District of Georgia, which was standing in the shoes 10 of the Southern District of Florida main justice and the 11 Southern District. 12 In other words, we were beginning the process 13 discharging our responsibilities. There had been no new 14 evidence that Mr. Epstein had committed any offense against a 15 minor after 2005. The subject matter of the New York 16 prosecution was squarely within the heartland of the Florida 17 NPA. We had a significant motion to dismiss. This was not a 18 futile, you know, defeatist attitude. 19 Third, we had all the discovery motions that your 20 Honor had scheduled. So the timing for a pretrial detainee to 21 commit suicide on August 10, when his bail pending appeal 22 motion is being filed on August 12, strikes us as implausible. 23 Second, we had an independent doctor who was present 24 at the autopsy which occurred on August 11. On August 11, the 25 city medical examiner's findings were inconclusive. We are SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103928  22 J8RsEPS1 told by a very experienced forensic pathologist that the broken bones in Mr. Epstein's neck, in his larynx, are more consistent with external pressure, with strangulation, with homicide, if 4 you will, than with suicide. It doesn't exclude suicide, but 5 the pure medical forensic evidence creates profound issues 6 about what happened to him. 7 Also the time of death. Our medical examiner's 8 opinion is it occurred at least 45 minutes and probably hours 9 before 6:30 a.m. on August 10, when he was first found, if you 10 will, according to the reports. Yet he was moved, something 11 that is not ordinary in these circumstances. 12 I would also -- 13 THE COURT: Excuse me. He was moved? 14 MR. WEINBERG: Instead of having the cell in the 15 condition it was found, if he had been dead for 45 minutes or 16 two hours or four hours, there were efforts to move him and, 17 therefore, make it more difficult to reconstruct whether or not 18 he died of suicide or some other cause. 19 I spoke to Stacey Richmond, who is a responsible 20 member of this court who represents the family of Mr. Epstein. 21 She spoke to the medical examiner on the Friday after 22 Mr. Epstein's death and asked why, if the conclusion was made 23 late in the afternoon on Friday that week. She specifically 24 asked about what extrinsic nonmedical evidence caused the 25 medical examiner to go from uncertain to suicide, and she was SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103929  23 J8RsEPS1 told that the medical examiner had seen nine minutes of one video which was on a stairwell between floors at the MCC. She was told that the principal video that would have showed the 4 whole hall was corrupted. It was in DC with the FBI to see if 5 they can reconstruct it. 6 And I asked the same questions that my co-counsel did, 7 you know, was the dysfunction of the critical pivotal video, in 8 the most secure prison east of Florence, out in Colorado known 9 to the MCC before August 10, or was this corruption occurring 10 on August 10, which would again cause us to be skeptical of the 11 servitude of the medical examiner's conclusions that this was 12 suicide rather than some other cause. 13 So with my co-counsel, we ask your Honor, it is not a 14 question of trust or not trust. They ask you to detain people 15 and you trust the Bureau of Prisons. And it is within your 16 inherit authority, your Honor, to find out what happened to our 17 client. 18 We are angry about the conditions he was held in. And 19 we're also angry, quite frankly, your Honor, that the only 20 source of information that we get as to what happened to him is 21 through the media rather than through the United States 22 Attorney's office. We've made requests informal. We have 23 made Touhy requests. We've been told there is a pending 24 investigation. 25 But we trust your Honor and the judiciary, and with SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103930  JaRsEPS1 all due respect, we believe there is an inherent and central role, a pivotal role in your Honor to find out what happened to a defendant in a case before the court, whether or not the 4 court grants the nolle pros today or whether it holds it 5 pending an investigation into Mr. Epstein's death. 6 We're not here without significant doubts regarding 7 the conclusion of suicide. We are not here to say what 8 happened. We don't know what happened. But we deeply want to 9 know what happened to our client. 10 Thank you, sir. 11 THE COURT: And you, as Mr. Weingarten, have the same 12 view of the nolle prosequi motion? 13 MR. WEINBERG: Yes, your Honor. 14 THE COURT: OK. 15 MS. : Your Honor, may I respond to some of those 16 points? 17 THE COURT: Sure. 18 MS. : Thank you, your Honor. 19 Just briefly. With the exception of the noting that 20 the defense does not have an objection to the government's 21 motion, virtually everything else that defense counsel just 22 argued, respectfully is completely irrelevant to the purposes 23 of today's proceeding and to the motion that is pending before 24 your Honor. 25 As an initial matter, the question -- SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103931  J8RsEPS1 THE COURT: Well, it may be. Well, I don't know. You say irrelevant. It is a public hearing, and I think it is fair game 4 for defense counsel to raise its concerns. 5 MS. : Certainly, your Honor. But it is 6 irrelevant to whether or not the motion should be granted. 7 THE COURT: Right. I get that. 8 MS. : I would also note that the question of 9 Mr. Epstein's death is the subject of an ongoing and active 10 investigation, as has been publicly noted, by a separate team 11 of Assistant United States Attorneys from the Southern District 12 of New York, separate from the team who is handling this 13 prosecution, as well as a separate team of FBI agents. 14 There is an ongoing and active grand jury 15 investigation into the circumstances surrounding Mr. Epstein's 16 death. It is the function of a grand jury and of the Federal 17 Bureau of Investigation to investigate crimes in the federal 18 court system. It is not the purview, respectfully, of the 19 court to conduct an investigation into uncharged matters. 20 So respectfully, we disagree with defense counsel's 21 suggestion that the court has some authority to conduct an 22 independent investigation. To the extent any other defendants 23 who are detained in the MCC have concerns about the conditions 24 or believe that the conditions are relevant to a future or 25 current bail determination, it is for those defendants and SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103932  2 JaRsEPS1 their counsel to raise those arguments and for the judges hearing those arguments to evaluate those claims. It is not relevant to today's proceedings. 4 Thank you, your Honor. 5 THE COURT: In those other cases, Ms. , judges do 6 have authority to investigate, but don't here? 7 MS. : Not to investigate, your Honor, but to 8 hear arguments about the conditions of confinement in the MCC 9 as they may relate to any bail determination. I believe that 10 was the argument that was made. 11 The bigger picture here, your Honor, is that the focus 12 of today's proceeding, as we understand it, is to allow the 13 victims who have gathered here today to be heard and to comment 14 upon the case and to comment upon the motion that is pending, 15 and to bring this case to a close. 16 THE COURT: Got it. 17 MR. WEINGARTEN: May I? 18 THE COURT: Sure. 19 MR. WEINGARTEN: We obviously saw this as, perhaps, 20 the last opportunity to be before you, and we wanted to take 21 advantage of the opportunity to say our peace and thank you for 22 allowing us. 23 There is precedent here. Ted Stevens, the Senator 24 from Alaska case in Washington, DC, Judge Emmet Sullivan 25 ordered an independent investigation by a private lawyer when SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103933  27 JaRsEPS1 he was deeply troubled by the alleged Brady violations. I represented the prosecutors in that case, so I'm very, very familiar with it. 4 It is analogous. It is a situation where there was 5 tremendous controversy over what happened in the case and 6 whether or not the prosecutors went off the reservation. Judge 7 Sullivan -- and there were three or four independent -- not 8 independent, DOJ inquiries into the very same matter. But 9 Judge Sullivan wanted his own opportunity to make a judgment 10 with his own independent investigation. 11 THE COURT: OK. 12 MR. WEINBERG: If I could just add one precedent, your 13 Honor. 14 The Chief judge in the District of Massachusetts or 15 the Chief Judge at the time, Judge Wolf, in a case called 16 U.S. v. Fleming, when the conditions at Walpole, which is a 17 state prison where federal prisoners were being held -- we 18 don't have a federal MCC in Boston went to the prison, 19 stayed in the prison to determine whether or not the complaints 20 about the conditions were authentic. 21 I think your Honor has the inherent authority to go to 22 the ninth floor and see how the MCC houses pretrial detainees. 23 Thank you. 24 THE COURT: Are you saying that whether or not the 25 motion is granted that is pending before us? SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103934  J8RsEPS1 MR. WEINBERG: Yes, your Honor. I think, like when appeals are taken, bail issues remain before the district court. Jurisdiction is not 4 completely divested. Your Honor issued a pretrial detention 5 order and your Honor has the power, the inherent authority, 6 they are not going to refuse to allow you to go look at the 7 ninth floor. They are going to count on you to make decisions 8 in the future. 9 I just trust that the executive branch is not going to 10 prevent the judicial branch from looking into the death of 11 Jeffrey Epstein or the conditions in the SHU unit at the MCC, 12 sir. 13 THE COURT: Great. Thank you. 14 MS. : May I, your Honor? 15 Just very briefly, your Honor. I would note that upon 16 the dismissal of the indictment, which I believe the parties 17 agree is appropriate in this case, there would be no case. 18 There would be no jurisdiction for the court to conduct any 19 sort of inquiry, even if the court had such authority. 20 THE COURT: Right. 21 OK. I think we've heard enough. 22 It is at this point in the hearing that I would like 23 to call upon victims' counsel, plural, for any remarks they may 24 have and they may wish to make. Also, to introduce their 25 clients, those of them who wish to be heard. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103935  29 J8RsEPS1 It would be helpful if, in doing that, if counsel - Mr. Edwards and I see and I see Mr. Boise as well -- I know they are counsel to several, at least several of the victims. 4 It would be helpful if whoever is speaking, both Mr. Edwards 5 and Mr. Boise, would indicate to the court whether or not they 6 have discussed the pending motion with their clients, that is 7 to say and the rule of abatement, etc., etc. with them prior to 8 today's hearing. 9 Are we going to hear from Mr. Edwards first, is that 10 right? 11 MR. EDWARDS: Thank you, your Honor. 12 THE COURT: You bet. 13 It would be helpful, Mr. Edwards, if you would state 14 and spell your name for the court reporter. 15 If you are going to introduce someone else, which I 16 trust that you are, if you could state and spell their name as 17 well. 18 MR. EDWARDS: Yes, your Honor. 19 May it please the court. Brad Edwards, B-r-a-d 20 E-d-w-a-r-d-s, with the law firm of Edwards Pottinger. 21 I have in the courtroom today 15 victims that I 22 represent and have represented over the years. There are at 23 least 20 more who didn't make this hearing today for a 24 multitude of reasons, some out of fear of public exposure, 25 others because the way in which this case ended will never SOUTHERN DISTRICT REPORTERS, P.C. EFTA00103936  30 JaRsEPS1 bring full justice, and they decided it was best for them not to t