015-01.pdf

Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 1 of 24 Case 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 1 of 15 C.M.A., v. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80811-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN and SARAH KELLEN, Defendants, I -------------- 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 Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN") by and through his undersigned attorneys, hereby moves this Court for the entry of an order staying or continuing this action for a time certain (i.e., until late 2010 when the NP A expires), pursuant to the application of the Fifth Amendment of the U.S. Constitution and the fact that a parallel proceeding is ongoing and being investigated. In support of his motion, EPSTEIN states: I. Introduction At the outset, EPSTEIN notes this Court's prior Order, dated December 16, 2008, (Document 28), in which this Court denied a motion for stay brought by Defendant's prior counsel. In that instance, Defendant's counsel requested a mandatory stay under 18 U.S.C.A. §3509(k) which the court denied. In denying the request for the stay, this Court stated that a discretionary stay was not appropriate at the time the order was entered but also stated, in part, that "Any such issues shall be resolved as they arise in the course of litigation.". As discussed herein, "special circumstances" now exist which, in the "interests of justice," merit the entry of a stay of this civil action until the criminal matter in the 15 th Judicial Circuit is "closed" in Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 2 of 24 Case 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 2 of 15 C.M.A. v. Epstein, et al. Page2 accordance with the United States Attorney's Office ("USAO") Non-Prosecution Agreement ("NP A") and until the NP A expires. Moreover, EPSTEIN was indicted by a grand jury in or around July 2006. See Exhibit "A". The Non-Prosecution Agreement is part of the record in connection with that indictment, which is signed by the State Attorney of the 15 th Judicial Circuit in and for Palm Beach County, Florida ("SAO"). In fact, the NPA acknowledges the investigation performed by the SAO. Further, the USAO was present at the Plea hearing whereby the NPA was made part of the record. Thus, there is no question that a parallel criminal matter exists in that the SAO's case remains open and the NP A lives along side it, which places EPSTEIN under great scrutiny by the USAO. The NPA actually places an affirmative duty upon EPSTEIN to undertake discussions with the SAO to ensure compliance with the NP A. That check and balance, therefore, remains in the hands of the SAO, which has a parallel criminal proceeding. Here, the threat of prosecution is real, substantial, and present should the USAO determine that EPSTEIN somehow violated the NP A. As discussed below, because the NPA fails to define what constitutes a breach, the USAO has apparently taken it upon itself to determine whether a breach has occurred and whether to seek criminal prosecution. In fact, the USAO has already attempted to claim violations of the NPA due to, among other things, EPSTEIN defending the civil actions against him. Clearly, it is NOT simply EPSTEIN's choice as to whether he violates the NPA - that discretion apparently lies with the USAO. For this reason alone, a stay is required until the NP A expires. The difference between this Motion and the prior motion to stay is solely due to the ripeness of the issues discussed herein. 2 Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 3 of 24 Case 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 3 of 15 C.M.A. v. Epstein, et al. Page 3 II. THENPA By its terms, the NPA took effect on June 30, 2008 and expires by those same terms in late 2010 so long as EPSTEIN complies with the terms and conditions - violations of which remain undefined. The NP A, which remains under seal, outlines various obligations on the part of EPSTEIN including, but not limited to, pleading guilty to the Indictment and Information before the 15 th Judicial Circuit, recommendations for his sentencing before the 15 th Judicial Circuit, waiver of challenges to the Information filed by the SAO, waiver of right to appeal his conviction, agreement not be afforded benefits for gain time, and the agreement to not prosecute others listed thereon so long as EPSTEIN does not breach and fulfills the requirements of the NPA. What the NP A does not outline or define is what constitutes a breach or what act or omission constitutes a breach thereof. Therefore, the USAO apparently believes it has the discretion to make that unwritten and undefined determination, which places an unreasonable burden upon EPSTEIN in defending the civil claims in that he has no idea what the USAO will define as a breach in the event he does not assert his 5 th Amendment Rights. As an example, the .... , USAO has already claimed that EPSTEIN violated the NP A by: 1. investigating the Plaintiffs (by and though his attorneys) whom brought civil suits against him for purposes of defending those civil actions; 2. contesting damages in this action and in the other civil actions; 3. making statements to the press about this Plaintiff or other Plaintiffs by and though his attorneys; and 3 Case 9:09-cv-80469-KAM Document 15-1 Entered on FLSD Docket 05/14/2009 Page 4 of 24 Case 9:08-cv-80811-KAM Document 51-1 Entered on FLSD Docket 03/24/2009 Page 4 of 15 C.M.A. v. Epstein, et al. Page4 4. using the word 'jail" instead of "imprisonment" in the plea agreement with SA's office. See Exhibit "B" Goldberger Affidavit - EPSTEIN's criminal counsel. These allegations are silly, unfounded and alleged violations which are not defined as violations under the NPA but arrived at by the USAO. Thus, EPSTEIN is left with "Morton's Fork" in his side - the undesirable choice of taking the 5 th Amendment and having a judgment (summary or otherwise) entered against him in the civil action or the undesirable choice of subjecting himself to discovery in the civil action before the NP A expires and, thus, face the possibility of criminal prosecution by the USAO based upon some illusory breach deemed by the USAO by way of information obtained through civil discovery proceedings. This is inherently unfair, the danger is clear, and the playing field is not level in light of the NP A language or lack thereof. As a result, the threat of criminal prosecution against EPSTEIN by the USAO continues presently and through late 2010. III. Justice Requires The Entry of A Stay Because Defendant Is Being Forced To Choose Between Waiving His 5 th Amen