EFTA00799605.pdf

Case 9:03-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/0212017 Page 1 of 176 GOVERNMENT EXHIBIT EFTA00799605 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 2 of 176 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Matthewman JANE DOE 1 AND JANE DOE 2, Petitioners, vs. UNITED STATES, Respondent. DECLARATION OF A. MARIE VILLAFANA IN SUPPORT OF GOVERNMENT'S RESPONSE AND OPPOSITION TO PETITIONERS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND CROSS-MOTION FOR SUMMARY JUDGMENT I. I, A. Marie Villafatia, do hereby declare that I am a member in good standing of the Bar of the State of Florida. I graduated from the University of California at Berkeley School of Law (Boalt Hall) in 1993. After serving as a judicial clerk to the Hon. David F. Levi in Sacramento, California, I was admitted to practice in California in 1995. I also am admitted to practice in all courts of the states of Minnesota and Florida, the Eighth, Eleventh, and Federal Circuit Courts of Appeals, and the U.S. District Courts for the Southern District of Florida, the District of Minnesota, and the Northern District of California. My bar admission status in California and Minnesota is currently inactive. I am currently employed as an Assistant United States Attorney in the Southern District of Florida and was so employed during all of the events described herein. 2. I am the Assistant United States Attorney who was assigned to the investigation of EFTA00799606 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 3 of 176 Jeffrey Epstein. For purposes of 18 U.S.C. § 3771(a)(5), I was the "attorney for the Government," although, as discussed below, no federal criminal charges were ever filed and there was no "case," as that term is used in the statute. I have previously filed two Declarations (see DE14 and DE35). This Declaration repeats some of the information contained in the earlier Declarations for ease of reference. 3. The federal investigation of Jeffrey Epstein was handled by the Federal Bureau of Investigation ("FBI"). The federal investigation was initiated in 2006 at the request of the Palm Beach Police Department ("PBPD") into allegations that Jeffrey Epstein and his personal assistants had used facilities of interstate commerce to induce young girls between the ages of thirteen and seventeen to engage in prostitution, amongst other offenses. 4. Although the U.S. Attorney's Office for the Southern District of Florida ("the Office") opened the matter to conduct an investigation and to evaluate a possible prosecution, the Office never accepted the matter for federal prosecution, that is, the Office never authorized the presentation of a proposed indictment to a federal grand jury or the filing of any federal charge in a criminal complaint or information, and no case was ever filed. 5. Throughout the investigation, the FBI's Victim-Witness Specialist and I prepared and provided victim notification letters. (See Exs. & F). Letters to reported victims were prepared early in the investigation and subsequently delivered as each of those victims was contacted. The victim notification letters that were sent early in the investigation were sent to Exhibits designated by a number are attached to this Declaration. Exhibits designated by a letter are attached to the Government's Response and Opposition to Petitioners' Motion for Partial Summary Judgment and Cross-Motion for Summary Judgment. 2 EFTA00799607 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 4 of 176 individuals who had been identified as potential victims of Epstein, but whom the investigative team had not yet interviewed and had not necessarily determined were in fact victims of a federal offense or came under the protection of the Crime Victims' Rights Act ("CVRA"). For example, the U.S. Attorney's Office letters were hand-delivered by FBI agents to Jane Doe 1 and Jane Doe 2 on dates subsequent to the dates of the letters. At the time those letters were sent, determinations had not yet been made that Jane Doe 1 and Jane Doe 2 were in fact victims of a federal offense or came under the protections of the CVRA. Nonetheless, the investigative team and I adopted an approach of providing more notice and assistance to potential victims than the CVRA may have required, even before the circumstances of those individuals had been fully investigated and before any charging decisions had been made. My letters to Jane Doe I and Jane Doe 2 notified them of their rights under the CVRA, including the right to confer with me and the right to seek counsel with respect to their CVRA rights. (Id.). My letters also contained my direct dial telephone number, the direct dial telephone number of the case agent, Nesbitt Kuyrkendall, and the telephone number for the Justice Department's Office for Victims of Crime. (Id.). Both Jane Doe 1 and Jane Doe 2 also received letters from the FBI's Victim-Witness Specialist, which were sent on January 10, 2008. (See Ex. J). Neither Jane Doe I nor Jane Doe 2 ever contacted me to discuss the investigation, potential charges or resolutions of the matter, or otherwise. If they had, I would have been happy to discuss the matter and provide their comments, concerns, or desires to my superiors. I never declined any victim's request to confer regarding any aspect of the investigation. 6. A subpoena was issued to Jane Doe 2 for testimony and documents in September, 2006. Within a few days, I was contacted by attorney James Eisenberg, who informed me that he 3 EFTA00799608 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 5 of 176 was representing Jane Doe 2. Mr. Eisenberg also informed me that Jane Doe 2 would not provide testimony or appear for a consensual interview unless the U.S. Attorney's Office obtained court- ordered use immunity for Jane Doe 2 pursuant to 18 U.S.C. § 6001, et seq. See Ex. A. I had several oral and written communications with Mr. Eisenberg asking him if Jane Doe 2 would appear under the protection of a standard Kastigar letter, but he told me that Jane Doe 2 would only appear if statutory immunity pursuant to 18 U.S.C. § 6001 was received. For example, in my letter of January 24, 2007, I confirmed my earlier conversation where Mr. Eisenberg had advised that Jane Doe 2 intended "to invoke the Fifth Amendment if questioned," and that she "was unwilling to speak to [the investigative team] pursuant to a Kastigar letter." (See Ex. 1.) 7. In the same letter of January 24, 2007, I raised concerns regarding whether Mr. Eisenberg had a conflict of interest. (See id.) As noted in Jane Doe 2's Declaration, Mr. Eisenberg's fees were paid by Jeffrey Epstein, the target of the investigation. In response, Mr. Eisenberg wrote the attached letter dated February 1, 2007. (See Ex. 2.) Mr. Eisenberg stated that it was the attitude of the U.S. Attorney's Office, in which the "office refuses to accept the fact that it is [Jane Doe 2's] decision not to cooperate with the government that upsets her." (Id. at ¶ 1.) Mr. Eisenberg also assured me "that there is no conflict of interest in [his] representation of [Jane Doe 2]. In this case I have always been asked and always will exercise independent judgment to follow my client's independent will." (Id. at12.) Despite his expressed misgivings about the Palm Beach Police Department's handling of its investigation, Mr. Eisenberg stated that "[n]one of the above is directed at you personally. I want to repeat that you have always treated us with respect." (Id. at p. 2, final paragraph.) 4 EFTA00799609 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 6 of 176 8. In light of Mr. Eisenberg's representations that there was no conflict of interest, and in light of his clear statements that he represented Jane Doe 2, I could not directly contact or "confer" with Jane Doe 2 without running afoul of the Florida Bar rules (e.g., R. Regulating Fla. Bar 4-4.2) and 28 U.S.0 § 530B. 9. I continued to converse with Mr. Eisenberg about having Jane Doc 2 appear for a voluntary interview, which continuously delayed the investigation. To that end, on February 5, 2007, I provided Mr. Eisenberg with two proposed Kastigar letters that I felt should assure Jane Doe 2 that she was being interviewed only as a witness and potential victim. (See Ex. 3.) At Jane Doe 2's request, I also prepared Office paperwork to obtain authorization for childcare while Jane Doe 2 was interviewed. (See Ex. 4.) 10. On February 12, 2007, after another conversation in which Mr. Eisenberg re- iterated Jane Doe 2's intent to invoke her Fifth Amendment privilege and Jane Doe 2's refusal to testify without 6001 immunity, Mr. Eisenberg provided, at my request, a letter detailing Jane Doe 2's concerns regarding testifying without immunity. (See Ex. 5.) In that letter, Mr. Eisenberg "reiterate[d] that [Jane Doe 2] will refuse to voluntarily cooperate with the federal government." Jane Doe 2 thereafter denied being involved in or a victim of any criminal activity and made statements meant to exculpate Jeffrey Epstein, including "[Jane Doe 2] never touched Mr. Epstein in a sexual way and Mr. Epstein never touched [Jane Doe 2] at all. At one point, Mr. Epstein did ask [Jane Doe 2] her age. [Jane Doe 2] insisted that she was eighteen years old." (See id.) Describing Jane Doe 2's position, Mr. Eisenberg wrote: "We believe no crime was committed." (See id.) 5 EFTA00799610 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 7 of 176 11. Based upon the proffer letter provided by Mr. Eisenberg, in March 2007, I prepared a Request for Authorization to Apply for a Compulsion Order seeking Immunity pursuant to 18 U.S.C. §§ 6001-6003 for Jane Doe 2. On April 13, 2007, Bruce C. Swartz, Deputy Assistant Attorney General, approved the request, on behalf of Alice Fisher, Assistant Attorney General. (See Ex. B.) I then applied to the Court for an Order compelling Jane Doe 2's testimony. U.S. District Judge Middlebrooks granted the application on April 16, 2007. (Ex. 6.) 12. After learning of Judge Middlebrooks' Order, Mr. Eisenberg asked whether Jane Doe 2 could appear for an interview, rather than provide formal testimony pursuant to her subpoena, so that he could be present. On April 24, 2007, Jane Doe 2 was interviewed; the interview was videotaped. (Ex. C.) During the interview, Jane Doe 2 again denied being involved in or a victim of any criminal activity and made statements meant to exculpate Jeffrey Epstein. (See id.) Jane Doe 2 also informed me and the FBI agents who were present that she "hope[d] . . . nothing happens to [Epstein] because he's an awesome man" and that she believed that it was "a shame that he has to go through this because-he's an awesome guy and he didn't do nothing wrong, nothing." (Id.) 13. Other than that interview, I had no direct contact with Jane Doe 2 during the course of the investigation. Jane Doe 2 never contacted me at all, either directly or through Mr. Eisenberg, whether seeking information; requesting to confer with me regarding the investigation, charging decisions, or the resolution of the matter; or complaining that she was not being treated with fairness and respect. 14. In light of other evidence and witness statements, the investigative team considered Jane Doe 2's exculpatory statements to be false. Nonetheless, those statements precluded us from 6 EFTA00799611 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 8 of 176 including her as a victim who would be referenced in any federal indictment. Despite this, in light of the investigative team's general approach to try to go above and beyond in terms of caring for the victims, I continued to treat her as a victim. In that vein, shortly after the Non-Prosecution Agreement (NPA) was signed, I contacted Mr. Eisenberg to ask whether he still represented Jane Doe 2. Mr. Eisenberg stated that he did. I then told him that we would soon be making victim notifications, and asked Mr. Eisenberg whether I could send the notification directly to Jane Doe 2, or if it had to be served through him. Mr. Eisenberg instructed me that any victim notification should be sent to him. 15. As explained in further detail below, after the NPA was signed, Mr. Epstein, through his counsel, made several attempts to avoid having to perform the obligations that he had undertaken in the NPA. Several of those attacks alleged prosecutorial misconduct by me, and Epstein's attorneys used my efforts to provide a post-NPA-signing victim notification to Jane Doe 2 as evidence of that claimed misconduct. (See, e.g., Ex. L.) In response to Mr. Leflcowitz's ruinous allegations against Jane Doe 2 and myself, on December 13, 2007, I sent a response to Mr. Lefkowitz defending myself and Jane Doe 2. (Ex. 7.) 16. During the course of the suit filed by Jane Doe 1 and Jane Doe 2, the Petitioners have alleged that the case agents, the U.S. Attorney's Office, and I personally committed acts that violated their rights under the CVRA. They have pointed to various pieces of correspondence with counsel for Epstein to suggest that the negotiations were not at arms' length or that certain things were done inappropriately in order to keep the victims from fording out about the NPA. Their interpretations and assertions are incorrect. 7 EFTA00799612 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 9 of 176 17. In the summer of 2007, Jeffrey Epstein, through his attorneys, and the U.S. Attorney's Office for the Southern District of Florida ("the Office") entered into negotiations to resolve the investigation. Prior to that, Epstein's attorneys had made several attempts to convince the Office to discontinue its investigation and not pursue any possible federal prosecution of Epstein. These attempts were rejected. At that time, Mr. Epstein had already been charged by the State of Florida with solicitation of prostitution, in violation of Florida Statutes § 796.07. Mr. Epstein's attorneys sought a global resolution of the matter. The Office instructed me to engage in negotiations to reach an agreement with Epstein to defer federal prosecution in favor of prosecution by the State of Florida, so long as certain basic preconditions were met — Epstein would have to serve a jail sentence of two years (later reduced to 18 months), Epstein would have to register as a sex offender, and Epstein would have to accept liability to the victims identified in the federal investigation for damages in lieu of the restitution that would have been mandatory if Epstein had been convicted of the federal offenses under investigation. 18. Prior to the Office making its decision to direct me to engage in negotiations with Epstein's counsel, I discussed the strengths and weaknesses of the case with members of the Office's management and informed them that most of the victims had expressed significant concerns about having their identities disclosed. While I was not part of the final decision-making at the Office that arrived at the two-year sentence requirement, I was part of the discussions regarding sex offender registration and the restitution provision. It is my understanding from these and other discussions that these factors, that is, the various strengths and weaknesses of the case and the various competing interests of the many different victims (including the privacy concerns expressed by many), together with the Office's desire to obtain a guaranteed sentence of 8 EFTA00799613 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 10 of 176 incarceration for Epstein, the equivalent of uncontested restitution for the victims, and guaranteed sexual offender registration by Epstein to help protect other minors throughout the country in the future, were among the factors that informed the Office's discretionary decision to negotiate a resolution of the matter and to ultimately enter into the NPA. 19. After the fact, Petitioners are critical of the NPA's terms. They have alleged that Epstein would easily have been convicted and that all of the victims were eager to participate in a full-fledged federal prosecution. Alternatively, they have suggested that a successful federal prosecution could have been mounted based solely on Epstein's actions with Jane Doe 1 and Jane Doe 2. As the prosecutor who handled the investigation, I can say that these contentions overlook the facts that existed at the time the NPA was negotiated. First, as set out above, Jane Doe 2 clearly stated her opposition to assisting the investigation, much less a prosecution. She was not alone. As noted in Special Agent Kuyrkendall's Declaration, many victims expressed reservations about assisting in the investigation. For example, Special Agent Timothy Slater described how one victim told him that she did not want to be bothered again, she had moved away to distance herself from the situation, and she wanted to "let this be in my past." (Ex. 8 at 1 7.) Similarly, the person whom Petitioners refer to as "Jane Doe 5" also had been approached by the investigative team in 2007 but refused to speak with them. (See D.E. 14 at 1 3.) Regardless of the perceived strength of the corroborating evidence, it was and remains my professional opinion as an experienced prosecutor that a successful prosecution would have required convincing all of the identified victims to come forward and speak publicly at a trial, knowing that they would face public scrutiny and withering cross-examination. Using my best efforts to accord all of the victims their right to be treated with fairness and with respect for their dignity and privacy, and in 9 EFTA00799614 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 11 of 176 the exercise of my prosecutorial discretion, I believed and still believe that a negotiated resolution of the matter was in the best interests of the Office and the victims as a whole. The Office had also reached that same conclusion. 20. Second, the suggestion that a successful prosecution could have been mounted naming only Jane Doe 1 and Jane Doe 2 as victims is overly optimistic at best. The investigative team and I worked tirelessly to put together the evidence nernsary to prove beyond a reasonable doubt that Epstein committed federal offenses. We recognized how difficult a trial would be and that a successful case could be made only if a jury heard from a long series of credible victims, who did not know each other (to avoid an allegation of collusion) and who had all been subjected to the same treatment at Epstein's hands. A case involving just two victims who knew each other, including one who had previously stated — on videotape — that she never engaged in sexual contact with Epstein, would never have been charged as a federal case, must less resulted in a conviction. 21. Negotiations to resolve the Epstein matter were difficult, and it was not clear that they would be successfully completed. If Epstein did not enter an agreement with the Office, then the Office needed to be in the best position it could be to charge and convict him. Accordingly, I did not want to share with victims that the Office was attempting to secure for them the ability to obtain monetary compensation for the harm they had suffered. I was aware that, if I disclosed that and the negotiations fell through, Epstein's counsel would impeach the victims and my credibility by asserting that I had told victims they could receive money for implicating Epstein. In fact, Epstein's attorneys made exactly that claim in a deposition of one of the victims. (See Ex. 9 at 44-51.) Attorney Michael Tien, who represented Epstein, asked one of the identified victims the following questions: 10 EFTA00799615 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 12 of 176 TIEN: Now tell me about when the federal prosecutors told you about getting reimbursed. A: I have no idea what you're talking about. TIEN: Tell me about when the federal prosecutors spoke to you about getting money you feel you're entitled to from Mr. Epstein. A: I don't know what you're talking about. TIEN: Do you know who Marie Villafana is? A: No, sir. TIEN: Did you ever meet with any federal prosecutors? A: I think — yeah. I think they were — I think they were like FBI. TIEN: Uh-huh. Did you meet with federal prosecutors? A: They came to my house one time, yes. TIEN: When did they come to your house? A: Very long ago. TIEN: Was it this year, 2008? A: It was not this year, no. TIEN: Was it 2007? A: I'd have to say at least two years ago or a year ago, yeah. So it would be 2007, 2006; but it was a while ago. *** TIEN: So if I say the name to you Marie Villafana, you don't know who that is? A: No, sir. TIEN: How many women and how many men came to your house? A: I want to say two ladies and two guys. TIEN: Did someone named Jeffrey Sloman come to your house? A: I don't know names, sir. 'HEN: Do you know who Jeffrey Sloman is? A: No, sir. * * * TIEN: And you say you don't know who Jeff Sloman is? A: No, sir. 11 EFTA00799616 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 13 of 176 TIEN: Does it refresh your recollection that he's the number two prosecutor at the U.S. Attorney's Office? A: No. TIEN: That he's Marie Villafana's boss? A: No. *** TIEN: Did you meet with an agent named Nesbitt Kuyrkendall, a woman? A: I don't know. TIEN: Did Ms. Kuyrkendall speak to you about getting reimbursed from Mr. Epstein? A: I've never had a discussion with anyone about getting reimbursed from Mr. Epstein. *** TIEN: And we've learned that many of the girls, some of whom are as old as 23, were told by the government that they would get money at the end of the criminal prosecution. Does that sound familiar to you? A: No, sir. While I knew that none of the Special Agents or I had ever discussed lawsuits or even restitution with any victim during any of their interviews and that First Assistant U.S. Attorney Sloman had never met any of the victims, this was exactly the type of cross-examination that I anticipated Epstein's attorneys would try at a trial. The Office and I concluded that opening up the possibility for such impeachment would be detrimental to the prosecution of Epstein if a negotiated resolution failed and Epstein were thereafter to be criminally charged. 22. As noted above, the negotiations were difficult and at times I urged the Office to break off negotiations when I felt Epstein's attorneys were proceeding in bad faith. Despite my reservations, I attempted to conduct the negotiations professionally and cordially. Petitioners in this case have attempted to construe some of my communications to suggest that I was overly friendly with Epstein's counsel to the detriment of the victims or that I was taking steps to undercut 12 EFTA00799617 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 14 of 176 the victims' ability to be present at any change of plea. These allegations are erroneous. I was simply being professional and cordial with opposing counsel. 23. For example, I am chided for an email regarding researching misdemeanor charges (see DE361 at 20), but, as noted above, I was instructed to construct a plea to federal or state offenses that resulted in a sentence of two years (later reduced to 18 months). This required me to find a relevant charge with the agreed-upon statutory maximum and then determine whether the facts developed in the investigation fit that charge. I was unable to find a relevant federal charge that had a statutory maximum of two years, and that required me to research the possibility of stacking two federal misdemeanor charges. 24. The Petitioners also suggest that I attempted to "contrive to establish jurisdiction away from the location where the crimes actually occurred—and away from where the victims actually lived—so as to avoid the public finding out about anything" (DE361 at ¶ 24). This also is false. By the time of that email, there already was intense press coverage of the case, including efforts to publicly identify victims. As noted above and in the Declaration of Special Agent Kuyrkendall, and even in the letters from Jane Doe 2's counsel (Exs. 2 and 5), the victims who had been interviewed in the federal investigation were most concerned about keeping their identities secret. The possibility of press coverage was a strong deterrent to their participation in the investigation and possible prosecution. My reason for recommending filing charges in Miami was to protect the privacy interests of the victims in the case by allowing them the opportunity to attend court proceedings — by definition, proceedings open to the public — with a reduced chance that their identities would be compromised. The FBI and the U.S. Attorney's Office regularly transport victims from their homes to court proceedings, and the same would have occurred if 13 EFTA00799618 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 15 of 176 federal charges against Epstein had been filed in Miami. Similarly, with regard to the selection of the attorney representative for the victims, I recommended two Miami attorneys whom I knew to have reputations for being tenacious, skillful, and committed to protecting their clients rather than burnishing their reputations in the press Although I understood that any civil suits that were filed would be publicly available, in light of the stated desire ofmost victims to remain anonymous, I did not believe that an attorney representative who actively sought out press coverage would be best suited to represent the victims in this case and protect their privacy interests. 25. Petitioners' suggestion that it was the Office, rather than the victims, who desired confidentiality also is misplaced. Even now, more than a dozen years after the investigation began, the Petitioners are proceeding by pseudonym to protect their privacy, and the Office has asserted the privacy rights of the other identified victims, as has counsel for other victims (e.g., DE 335). All of the victims who filed civil claims against Epstein did so by pseudonym, and some victims did not even pursue civil claims for fear of being publicly identified. A suggestion that, ten to twelve years ago, when many were still teenagers, the victims were willing to step forward in a public forum and expose themselves to public scrutiny — much of which was unfairly critical of them — is unfounded and untrue. 26. In June 2009, while Jane Doe 1 and Jane Doe 2 and many other victims were pursuing their civil suits against Epstein and while the instant case was pending, the Court asked me to address an issue related to the NPA and the civil suits. With counsel for Petitioners present, I informed the Court that: the non-prosecution agreement[] sought to do one thing, which was to place the victims in the same position they would have been if Mr. Epstein had been convicted ofthe federal offenses for which he was investigated. And that if he had 14 EFTA00799619 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 16 of 176 been federally prosecuted and convicted, the victims would have been entitled to restitution, regardless of how long ago the crimes were committed, regardless of how old they were at the time, and hold old they are today, or at the time of the conviction. And it also would have made them eligible for damages under [18 U.S.C. §] 2255. And so our idea was, our hope was that we could set up a system that would allow these victims to get that restitution without having to go through what civil litigation will expose them to. You have a number ofgirls who were very hesitant about even speaking to authorities about this because of the trauma that they have suffered and about the embarrassment that they were afraid would be brought upon themselves and upon their families. So we do through the non- prosecution agreement tried[sic] to protect their rights while alsoprotecting their privacy. (Ex. 10 at 31-32 (emphasis added)). None of the victims' attorneys who were present, including Petitioners' counsel, disputed my statement, and that statement remains true today. The investigative team, the FBI's victim-witness coordinator, and I all proceeded with a "victims fast" approach, and we all used our best efforts to protect the victims and accord them their rights. Petitioners allege that I did not give their now-professed desires to have Epstein prosecuted sufficient weight, but they never communicated those desires to me or the FBI agents and my role was to evaluate the entire situation, consider the input received from all of the victims, and allow the Office to exercise its prosecutorial discretion accordingly. 27. Petitioners' motion also suggests that some of the terms of the NPA or my actions were improper (see DE36I at 26-27). First, plea negotiations — like settlement negotiations (whether between the parties in the instant case or between Jane Doe 1, Jane Doe 2, and Epstein) — are normally kept confidential. Rule 11(cX1) of the Federal Rules of Criminal Procedure prohibits judicial involvement in plea negotiations, and the Eleventh Circuit has ruled that there is a "bright line rule" that courts should not offer any comments on plea negotiations. See, e.g., United States v. Johnson, 89 F.3d 778, 783 (11th Cir. 1996); United States v. Tobin, 676 F.3d 15 EFTA00799620 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 17 of 176 1264, 1307 (11th Cir. 2012). Likewise, Federal Rule of Criminal Procedure 6(e) requires confidentiality for persons subject to a grand jury investigation. My recommendations to opposing counsel to limit any plea agreement to its essential terms, rather than disclosing the reasons behind those terms, and to exclude the names of persons who would not be parties to the agreement, was in keeping with those general policies. Finally, when at an impasse in negotiations, a change of venue can be beneficial, such as when settlement conferences are held in a judge's chambers or a mediator's office rather than in the office of one of the parties. My suggestion to meet Epstein's counsel "off campus" was in no way improper; it was simply an effort to facilitate a resolution through a meeting at a neutral location, but that meeting never even occurred. On the other hand, during the course of the investigation, I routinely traveled to meet with victims at their homes, their jobs, and at coffee shops. 28. With regard to paragraph 29 of DE361, copies of emails sent to and from my personal email address were produced in discovery. Pursuant to my agreement with Mr. Edwards (counsel for Petitioners), personal email addresses were redacted. Some of those emails are included in the exhibits attached to Petitioners' motion. (See, e.g., DE361-15.) 29. In the end, the Office and I agreed that no federal misdemeanor charges adequately addressed the facts of the case, and the Office decided that, instead, it would forego federal prosecution if Epstein pled guilty to an applicable state offense that would require sex offender registration and an 18-month jail term, and if Epstein also agreed to allow the identified victims to obtain an uncontested recovery of damages in lieu of the restitution that would have been available under federal law. 16 EFTA00799621 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 18 of 176 30. Also, with regard to the confidentiality of the Non-Prosecution Agreement, the statements contained in paragraph 31 of DE361 are accurate. As courts have acknowledged, NPAs are not made part of a public court file but are maintained by a prosecutor's office. The Privacy Act, Fed. R. Crim. P. 6(e), and other statutes and rules keep private files related to subjects of investigations. There are some laws, including FOIA, that limit the confidentiality of those files, but, generally speaking, there is no public right of access to the Office's files. Thus, the assurance that I would not distribute — essentially, "leak" — the NPA was simply an assurance that I intended to abide by Office and Department policy and the law. The NPA made clear that the Office would disclose the NPA in response to appropriate FOIA requests and compulsory process, but would provide Epstein with notice before making such disclosure. (DE361, Ex. 62 at 5.) In part, this notice would ensure that no unlawful disclosure would be made mistakenly and subject the Office to civil liability. Nothing in the NPA prohibited disclosing its terms to the victims; the confidentiality provision covered only the document itself. 31. Petitioners' motion contains a number of other criticisms of the terms of the NPA, but despite my letters to them giving them my telephone number and encouraging them to contact me, neither Jane Doe 1 nor Jane Doe 2 ever contacted me or Special Agent Kuyrkendall prior to the signing of the NPA to ask about the investigation or to encourage prosecution. Jane Doe 2 specifically told me that she did not want Epstein prosecuted. Other victims had told me their fears of having their involvement with Esptein revealed and the negative impact it would have on their relationships with family members, boyfriends, and others. 32. Once the NPA was signed on September 24, 2007, I asked the agents to meet with the victims to provide them with information regarding the terms of the agreement and the 17 EFTA00799622 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 19 of 176 conclusion of the federal investigation. I also anticipated that they would be able to inform the victims of the date of the state court change of plea, but that date had not yet been set by state authorities at the time the first victims were notified. 33. Special Agents Kuyrkendall and Richards met with three victims, including Jane Doe 1, soon after the NPA was signed. It had been anticipated that they would meet with all the victims. However, almost immediately after the NPA was signed, Epstein, through his counsel, began to delay and inhibit the performance of his obligations under the NPA. First, he challenged the method for selecting the attorney-representative provided by the NPA for victims who wished to use that attorney's services in seeking damages from Epstein. Among other efforts, Epstein also sought to challenge the list of victims identified during the course of the investigation and, as mentioned above, specifically attacked the inclusion of Jane Doe 2 as a victim because of her exculpatory statements. While Petitioners here suggest that I was too lenient in my handling of the negotiations with Epstein's counsel, after the NPA was signed, Epstein's counsel raised challenges that I had been too aggressive. 34. These and other attacks and efforts to avoid the NPA's terms led the FBI investigative team, the Office, and me to conclude that prosecution and trial remained a possibility and we should prepare as such. This meant that the victim notifications had to cease because: (1) we no longer knew whether Epstein would perform under the NPA and, hence, we did not know whether providing information about the NPA would be accurate; and (2) we believed that Epstein, through his counsel, would attempt to use victim notifications concerning the NPA to suggest that the victims had been encouraged by the FBI or the Office to overstate their victimization for monetary compensation. The FBI and the Office decided, therefore, to do no further notifications 18 EFTA00799623 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 20 of 176 regarding the NPA at that time. Our concerns were prescient as shown by the deposition quoted in paragraph 21 above. This deposition occurred in February 2008 during the period that Epstein was complaining to various levels of the Justice Department about the investigation and the NPA. 35. Accordingly, the investigation continued while Epstein raised numerous erroneous allegations against me, the investigative team, other Office personnel, and the victims, seeking release from the Office and the Department of Justice of the obligations he had undertaken in the NPA. (See Exs. D, G, K, L, O.) While those "appeals" proceeded to the U.S. Attorney, the Child Exploitation and Obscenity Section in Washington, D.C., the Assistant Attorney General, and the Deputy Attorney General, the investigative team and I continued interviewing and identifying victims, issuing subpoenas, and collecting evidence. The investigation continued up until the day that Epstein entered his state court guilty plea. 36. One of the people who was re-interviewed after the NPA was signed was Jane Doe 1, who was re-interviewed on January 31, 2008. I was present for that interview. Since I was aware that Epstein might proceed to trial, as with other victims whom I interviewed, I asked Jane Doe 1 whether she would be willing to testify if there were a trial. At that time, Jane Doe 1 stated that she hoped Epstein would be prosecuted and that she was willing to testify. The FBI's letters of January 10, 2008, informing Jane Doc 1 and Jane Doe 2 that the case was still under investigation and that it could be a lengthy process (Ex. J) were accurate. Jane Doe l's re- interview was part of that continued investigation, so no one was deceived. The process was not lengthier only because Epstein ultimately entered his state court guilty pleas as contemplated by the NPA. 19 EFTA00799624 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 21 of 176 37. In mid-June 2008, Attorney Edwards contacted your Affiant to inform me that he represented Jane Doe 1 and another identified victim (not Jane Doe 2). Attorney Edwards asked to meet to provide me with information regarding Epstein. On June 19, 2008, Attorney Edwards sent me an email stating that he had "information and concerns that I would like to share" and that he wanted to meet with me to "discuss [his] plans." DE362-30. As noted in the email, he had one "client" at the time, who has been referred to in this suit as Jane Doe I, and he did not state that Jane Doe 1 wished to meet with me. (Id.) I invited Attorney Edwards to send to me any information that he wanted me to consider. At the time of my conversation with Attorney Edwards, I was still preparing to present charges against Epstein if Epstein succeeded in having the NPA set aside or if he failed to perform the terms of the NPA. I did not disclose the existence of the NPA to Edwards because I did not know whether the NPA remained viable at that time or whether Epstein would enter the state court guilty pleas that would trigger the NPA. I was aware that a final decision on Epstein's challenges to the NPA and the federal investigation was expected shortly, so I impressed upon Attorney Edwards that time was of the essence. Attorney Edwards sent nothing at that time, nor did he ever inform me that Jane Doe 1 and/or Jane Doe 2 wanted to confer with me before any resolution was reached. If anything had been provided by Edwards, Jane Doe 1, or Jane Doe 2, I would have reviewed it and shared it with my superiors. I also advised Attorney Edwards that he should consider contacting the State Attorney's Office. I was informed, however, that no contact with that office was made. At that time, attorney Edwards had also alluded to Jane Doe 2, so I advised him that, to my knowledge, Jane Doe 2 was still represented by Attorney James Eisenberg. He did not dispute or correct my understanding. 20 EFTA00799625 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLED Docket 06/02/2017 Page 22 of 176 38. On Friday, June 27, 2008, at approximate 4:15 p.m., I received a copy of Epstein's proposed state plea agreement and learned that Epstein's state court change of plea was scheduled for 8:30 a.m., Monday, June 30, 2008. The Palm Beach Police Department and I attempted to notify the victims about that hearing in the short time available to us. I specifically called attorney Edwards to provide notice to his clients regarding the hearing. I believe that it was during this conversation that Attorney Edwards notified me that he represented Jane Doe 2. I urged attorney Edwards to have his clients attend the hearing so that they could address the Court, if they wished, and I stressed the importance of the hearing. I never told Attorney Edwards that the state charges involved "other victims," and neither the state court charging instrument nor the factual proffer limited the procurement of prostitution charge to a specific victim. In fact, as mentioned in 1 37, supra, I had encouraged Attorney Edwards to contact the State Attorney's Office to discuss his client and the Epstein investigation with the state prosecutor. Attorney Edwards informed me that he could not attend the hearing but that someone would be present at the hearing. The case agents and I attended the hearing as members of the general public, and did not publicly announce our presence since we were there only as observers. Neither attorney Edwards nor any of his clients were present, and no one identified themselves to me, the FBI agents, or the state court as being present on behalf of the petitioners. /// /// /// 21 EFTA00799626 Case 9:08-cv-80736-KAM Document 403-19 Entered on FLSD Docket 06/02/2017 Page 23 of 176 39. On July 3, 2008, attorney Edwards contacted me to discuss how the Epstein matter had been resolved and to raise concerns regarding that resolution. I shared the concerns that attorney Edwards raised with my superiors at the U.S. Attorney's Office. 40. 1 declare under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct to the best of my knowledge and belief. Executed this day of June, 2017. Marie Villafafia, Esq. 22