EFTA00076815.pdf

306 425 FEDERAL SUPPLEMENT, 3d SERIES t In short, the issue now before the Court UNITED STATES of America, has arisen only because Donziger unjustifi- Government, ably has refused to comply with his discov- ery obligations. Had he done so — i.e., had v. he produced responsive documents as to which there was no colorable claim of priv- Jeffrey EPSTEIN, Defendant ilege, submitted a privilege log as to re- sponsive documents as to which there was 19 CR. 490 (RMB) such a colorable claim, and submitted any disputes for judicial resolution - there United States District Court, would be no need to examine his ESI. But S.D. New York. he has not. And the Court thus must take appropriate action. His arguments to the Signed July 18, 2019 contrary are meritless. Background: Defendant was charged Conclusion with sex trafficking and sex trafficking For the foregoing reasons, the Court conspiracy. Defendant moved for pretrial has entered the protocol for imaging and release. forensic examination of Donziger's elec- tronic devices and media. Holdings: The District Court, Richard M. SO ORDERED. Berman, Senior District Judge, held that: (1) defendant posed danger to others and to community; the six months between being served with So too here in the sense that Donziger has the document requests and the Court's made no good faith effort to comply with eventual ruling, on October I8, 2018, that his obligations concerning claims of privi- Donziger had waived any applicable privi- lege. lege. Fourth, Donziger's behavior here regarding Third, Donziger disregards the fact that privilege claims, just as in the related prior when he belatedly produced a "privilege case, has been undertaken for tactical ad- log" in the prior litigation it was about vantage. He never posted a supersedeas 2,000 pages long and scheduled over 8,652 bond, which would have stayed enforce- supposedly privileged documents. The ment of the money judgment as of right, "privilege log," however, contained not nor sought a stay of its enforcement on any even one communication between Donziger other basis. And while he did seek a stay and his putative clients. It claimed privilege from this Court of certain discovery from a as to more than 2,500 documents "sent or non-party witness and a broader protective disclosed to a public relations person, the order and has appealed from the order de- founder of the Amazon Defense Front ..., nying his motion, see DI 2045. he never has Amazon Watch, and a host of newspapers sought a stay or injunction pending appeal and magazines" none of which could have from the Circuit in the more than three been privileged if only because they were months since this Court ruled. It appears not confidential lawyer-client communica- that his obdurate refusal to comply with tions. In re Chevron Corp., 749 F. Supp. 2d discovery obligations and court orders is an at 184. Thus, the privilege log tardily sub- attempt to obtain by self help the stay of mitted in the prior case was not a good discovery that this Court denied and that he faith attempt to make only colorable claims has not sought from the Circuit. of privilege as distinguished from an at- tempt to stall discovery. See id. at 184-85. 41. DI 2108 8 1. EFTA00076815  U.S. v. EPSTEiN 307 Cute as 425 F.Supp.ld 306 (S.D.N.Y. 2019) (2) defendant was serious risk of flight and 6. Bail e=49(3.1) conditions could not be set that reason- To order detention under the Bail Re- ably would assure his appearance at form Act based upon risk of flight, a court trial; and must find by a preponderance of the evi- dence that no conditions could reasonably (3) defendant's proposed bail package did assure the defendant's presence at trial. not weigh in favor of pretrial release. 18 U.S.CA.* 3142. Motion denied. 7. Bail G=.42 The constitutional limits on a deten- tion period under the Bail Reform Act 1. Bail €=49(4) based on dangerousness to the community may be looser than the limits on a deten- In most federal cases the rebuttable tion period based solely on risk of flight; in presumption that applies favors pretrial the former case, release risks injury to release, not remand. others, while in the latter case, release risks only the loss of a conviction, and 2. Bail er49(5) therefore a bail package that may reason- Sex trafficking victims are entitled to ably assure the appearance of the defen- be heard in court, including on the ques- dant at trial will not necessarily assure the safety of the community. 18 U.S.C.A. tion of whether the defendant is to be § 3142. released or remanded. 18 U.S.C.A. §§ 3142, 3771. 8. Bail €=.49(5) Under the Bail Reform Act, the 3. Bail cr>49(3.1) weight afforded to each factor to be con- sidered in the release-remand analysis is Under the Bail Reform Act, a finding within the special province of the district of a defendant's dangerousness must be court. 18 U.S.CA.* 3142. supported by clear and convincing evi- dence. 18 U.S.CA.* 3142. 9. Bail 049(5) A district court is afforded wide dis- 4. Bail €=.42 cretion regarding the scope of a release- remand hearing under the Bail Reform Under the Bail Reform Act, where Act. 18 U.S.CA. § 3142(f)(2). there is a strong probability that a person will commit additional crimes if released, 10. Bail C=.49(4) the need to protect the community be- The government retains the ultimate comes sufficiently compelling that deten- burden of persuasion under the Bail Re- tion is, on balance, appropriate. 18 form Act in a case involving sexual victim- U.S.CA. § 3142. ization of a minor that a defendant pres- ents a danger to the community by clear 5. Bail e=:073.1(1) and convincing evidence and that the de- fendant presents a risk of flight by a pre- Under the Bail Reform Act, even a ponderance of the evidence; even if rebut- single incident of witness tampering may tal evidence is presented, the presumption be sufficient to revoke bail. 18 U.S.C.A. favoring detention does not disappear en- § 3142. tirely and it remains a factor to be consid- EFTA00076816 308 425 FEDERAL SUPPLEMENT, 3d SERIES ered among those weighed by the district 14. Bail tz=.42 court. 18 U.S.C.A. H 1591, 3142(e)(3)(E). A finding of either danger to the com- munity or risk of flight will be sufficient 11. Bail tz=.42 under the Bail Reform Act to detain the Defendant charged with sex traffick- defendant pending trial. 18 U.S.C.A. ing and sex trafficking conspiracy posed § 3142. danger to others and to community, weigh- ing against pretrial release under Bail Re- 15. Bail er42 form Act, where defendant was alleged to The factors to be considered under have committed sex crimes with minor the Bail Reform Act in analyzing risk of girls and tampered with potential wit- flight are the same factors that apply when nesses, victims feared for their safety if he analyzing dangerousness. 18 U.S.CA were released, he posed threat to addition- § 3142(g). al young girls if he was released, and compliance with his legal obligations as 16. Bail e="49(5) registered sex offender was lacking. 18 Under the Bail Reform Act, the U.S.CA. 0 1591, 3142. weight afforded to each factor to be con- sidered in analyzing risk of flight is within 12. Bail e=49(4) the special province of the district court. Under the Bail Reform Act, if the 18 U.S.CA. § 3142(g). defendant in a case involving sexual victim- ization of a minor comes forward with 17. Bail e=.49(2, 3.1) evidence that he will not endanger the Proposed bail package of defendant community or flee the jurisdiction, the pre- charged with sex trafficking and sex traf- sumption of remand is not erased; rather, ficking conspiracy did not weigh in favor of the presumption remains in the case as an pretrial release under Bail Reform Act, evidentiary finding militating against re- since package was not accompanied or sup- lease, to be weighted along with other ported by audited or certified financial evidence. 18 U.S.CA. §§ 1591, 3142. statements, including details of income and expenses and debt obligations, defendant 13. Bail e=42 did not provide affidavit of his financial Defendant charged with sex traffick- condition, he could make millions or tens of ing and sex trafficking conspiracy was ser- millions of dollars per year outside of Unit- ious risk of flight and conditions could not ed States, package proposed excessive in- be set that reasonably would assure his volvement of court in routine aspects of appearance at trial, weighing against pre- defendant's proposed home confinement trial release under Bail Reform Act, where which was not court's function, and defen- defendant had limited family ties to United dant's proposal to give advance consent to States, he had unexplained assets, and he extradition and waiver of extradition rights had incentive, motive, and wherewithal to was empty gesture. 18 U.S.C.A. flee, given his residence in Paris, his ex- 3142(b), 3142(f)(2). tensive overseas travel, his significant wealth and his substantial resources, in- 18. Bail e=49(2) cluding private planes, and potential 45 Under the Bail Reform Act, each bail year term of imprisonment that could be package in each case is considered and imposed if he was convicted. 18 U.S.C.A. evaluated on its individual merits by the §§ 1591, 3142. court. 18 U.S.C.A. § 3142. EFTA00076817  U.S. v. EPSTEIN 309 Cite u423 F.Supp.34 306 (S.D.N.Y. 2019) Pro Hac Vice, is also charged with conspiring with others to commit sex trafficking under 18 U.S.C. United States Attorney's Office, New § 371. York, NY, Gloria Rachel Allred, Allred, Maroko & Goldberg, Los Angeles, CA, for [1] With respect to the issue of re- Government. mand versus release, 18 U.S.C. § 3142 James L. Brochin, Michael Campion applies. It sets forth a presumption in Miller, Michael Gerard Scavelli, Reid favor of remand, an exception to the pre- Weingarten, Steptoe & Johnson, LLP, sumption in most cases which favors pre- Marc Allan Fernich, Law Office of Marc trial release. § 3142 states that: "if there is Fernich, New York, NY, Martin Gary probable cause to believe that the person Weinberg, Martin G. Weinberg, PC, Bos- committed . .. an offense involving a mi- ton, MA, for Defendant. nor victim under section . . . 1591," then "it shall be presumed that no condition DECISION & ORDER REMANDING or combination of conditions will rea- DEFENDANT sonably assure the appearance of the RICHARD M. BERMAN, U.S.D.J. person as required and the safety of the A. Background community." 18 U.S.C. § 3142(e)(3)(E) (emphasis added); see United States v. This ruling follows the Court's bail hear- Martir 782 F.2d 1141, 1144 (2d Cir. 1986). ing held on July 15, 2019. The issue before The Indictment in this case was returned the Court is whether the Defendant should by a grand jury thus establishing probable continue to be remanded (incarcerated) cause that the defendant committed the pending trial or whether he should be crimes of sex trafficking and sex traffick- granted release while the case proceeds. No matter the answer to this question and ing conspiracy. See United States v. no matter what has been said in Court in Contreras, 776 F2d 51, 55 (2d Cir. 1985) analyzing the matter, this is a criminal ("[A]n indictment returned by a duly con- case and the Defendant, Jeffrey Epstein, is stituted grand jury conclusively establishes innocent of the Federal charges alleged the existence of probable cause for the against him now and until such time, if it purpose of triggering the rebuttable pre- comes, that a jury or the Court fmds (after sumptions set forth in § 3142(e)"). In most fair and thorough consideration of the federal cases the rebuttable presumption facts and the law) that he is guilty. See that applies favors pretrial release, not Transcript, dated July 8, 2019 ("7/8/19 remand. Tr."), at 2-3; Transcript, dated July 15, 2019 ("7/1W19 Tr."), at 40. It should also [2] There is another very important be borne in mind that the Court has not issue to be considered in this case. It has (yet) been presented with a motion to dis- to do with "victims" of the crimes charged miss the Indictment. in the Indictment. Victims refer to the This is a federal as opposed to a state "minor" girls who are alleged to have been case. We proceed under federal law and sexually trafficked by the Defendant. Un- federal rules. The key federal statute that der 18 U.S.C. § 3771, victims are entitled applies here is 18 U.S.C. § 1591 which sets to be heard in court, including on the forth the crime of sex trafficking with question of whether the defendant is to be which Mr. Epstein is charged. Mr. Epstein released or remanded. Victims have, EFTA00076818 310 425 FEDERAL SUPPLEMENT, 3d SERIES among other things, been given the oppor- into the defendant's abuse of minor girls in tunity to testify at the bail hearing. the Palm Beach area." Id. at 3. "In June 2008, the defendant pled guilty in [Florida] B. Counsels' Submissions state court to one count of procuring a The Government's letter application, person under the age of 18 for prostitution, dated July 8, 2019, requests that the Court a felony, and one count of solicitation of remand Mr. Epstein. It argues that Mr. prostitution, [also] a felony. As a result, the defendant was designated as a sex Epstein "poses [ ] an acute danger to the community" and, grounded in past experi- offender with registration requirements under the national Sex Offender Registra- ence with this Defendant, that "if [Mr. tion and Not cation Act" Id. Epstein is] allowed to remain out on bail, the defendant could attempt to pressure The Defense moved on July 11, 2019, and intimidate witnesses and potential wit- for pretrial release of Mr. Epstein, argu- nesses in this case, including victims and ing that "Mr. Epstein's strict compliance their families, and otherwise attempt to with the various monitoring requirements obstruct justice." Dkt. 11, Ex. 1 at 1. The associated with his sex-offender registra- Government also contends that "[i]n light tion actually decrease's] any danger that of the strength of the Government's evi- he might otherwise pose" and also that dence and the substantial incarceratory "Mr. Epstein has never once attempted to term the defendant would face upon con- flee the United States." Dkt. 6 at 1, 12. viction [45 years], there is an extraordi- The Defense proposes what they describe nary risk of flight, particularly given the as "a stringent set of [14] conditions that will effectively guarantee [Mr. Epstein's] defendant's exorbitant wealth, his owner- ship of and access to private planes capa- appearance and abate any conceivable danger he's claimed to present." Id. at 1. ble of international travel, and his signifi- The 14 conditions do not include private cant international ties." Id. security guards 24/7. The 14 conditions do The Government also provides the fol- include: (1) "Home detention in Mr. Ep- lowing background information: "In or stein's Manhattan residence, with permis- about 2005, the defendant was investigated sion to leave only for medical appoint- by local police in Palm Beach, Florida, in ments as approved by Pretrial Services, connection with allegations that he had including (at the Court's discretion) the committed similar sex offenses against mi- installation of surveillance cameras at the nor girls. The investigation ultimately also front and rear entrances to ensure compli- involved federal authorities, namely the ance"; (2) "Electronic monitoring with a U.S. Attorney's Office for the Southern Global Positioning System"; (3) "An agree- District of Florida and the FBI's Miami ment not to seek or obtain any new pass- Office, and included interviews with vic- port during the pendency of this matter"; tims based in the Palm Beach area, includ- (4) "Consent to U.S. extradition from any ing some of the alleged victims relevant to country and waiver of all rights against Count One of the instant Indictment. In such [*tradition"; (5) "A substantial [un- the fall of 2007, the Defendant entered into specified] personal recognizance bond in a non-prosecution agreement ("NPA") with an amount set by the Court after review- the Southern District of Florida in connec- ing additional information regarding Mr. tion with the conduct at issue in that inves- Epstein's finances...."; (6) "The bond tigation, which the non-prosecution agree- shall be secured by a mortgage on the ment identified as including investigations Manhattan residence, valued at roughly EFTA00076819  U.S. v. EPSTEIN 311 ale as 425 F.Supp-3d 306 (S.D.N.Y. 2019) $77 million. Mr. Epstein's private jet can a history of obstruction and manipulation be pledged as further collateral"; (7) "Mr. of witnesses, including ... as recently as Epstein's brother Mark will serve as a co- within the past year, when media reports surety of the bond, which shall be further about his conduct [in Florida] reemerged." secured by a mortgage on Mark's home in Dkt. 11 at 1. The Government filing was West Palm Beach, Florida. Mr. Epstein's made against a "backdrop of significant— friend David Mitchell will also serve as a and rapidly-expanding—evidence, serious co-surety and pledge his investment inter- charges, and the prospect of a lengthy ests in two properties to secure the bond"; prison sentence." Id. It contends that the (8) "Mr. Epstein shall deregister or other- defendant's proposed conditions of release wise ground his private jet"; (9) Mr. Ep- are "woefully inadequate." Id. stein "shall demobilize, ground, and/or The Court also received a letter from deregister all vehicles or any other means the Government, dated July 16, 2019, pro- of transportation in the New York area, viding, among other things, details about providing particularized information as to allegedly suspicious payments made by the each vehicle's location;" (10) "Mr. Epstein Defendant in 2018; a Palm Beach, Florida will provide Pretrial Services and/or the police report; Mr. Epstein's expired Aus- government random access to his resi- trian passport in another name but with dence"; (11) "No person shall enter the Mr. Epstein's photo; and a pile of cash and residence, other than Mr. Epstein and his diamonds found in Mr. Epstein's safe. For attorneys, without prior approval from Pretrial Services and/or the Court"; (12) example, the Government says: "[R]ecorcls "Mr. Epstein will report daily by tele- from Institution-1 show that on or about phone to Pretrial Services (or on any oth- November 30, 2018, or two days after the er schedule the Court deems appropri- series in the Miami Herald began, the ate)"; (13) "A Trustee or Trustees will be defendant wired $100,000 from a trust ac- appointed to live in Mr. Epstein's resi- count he controlled to . . ., an individual dence and report any violation to Pretrial named as a potential co-conspirator." Dkt. Services and/or the Court"; (14) "Any oth- 23 at 1. And, "on or about December 3, er condition the Court deems necessary to 2018, the defendant wired $250,000 from reasonably assure Mr. Epstein's appear- the same trust account to . .., [an individ- ance." Id. at 3.4. The Defense also propos- ual] who was also named as a potential co- es as a "fallback" "round-the-clock, pri- conspirator." Id. at 1.2. According to the vately funded security guards [which] will Government, the second individual "is also virtually guarantee - not just reasonably one of the employees identified in the In- assure - Mr. Epstein's presence in the dictment, which alleges that she and two circumstances of this case." Id. at 10. The other identified employees facilitated the bail package originally was not accompa- defendant's trafficking of minors by, nied by a financial statement reflecting among other things, contacting victims and Mr. Epstein's finances. However, on July scheduling their sexual encounters with 12, 2019, the Defense filed a one-page doc- the defendant at his residences in Manhat- ument which includes five groups of assets tan and Palm Beach, Florida." Id. at 2. owned by Mr. Epstein totaling By letter, dated July 16, 2019, Defense $559,120,954. Dkt. 14 at 18. counsel states, among other things, that The Government responded to the De- the Court should reject the idea that fense motion on July 12, 2019, arguing, "there's literally nothing a person of Ep- among other things, that Mr. Epstein "has stein's means could say, do or pledge to EFTA00076820 312 425 FEDERAL SUPPLEMENT, 3d SERIES rebut the operative presumption and make would give the victims hundreds of dollars himself eligible for release." Dkt. 24 at 2. in cash." Indictment, dated July 2, 2019 "Epstein contends that * 1591 and the ("Indictment"), 'I 2. "Moreover, and in or- concomitant remand presumption do not der to maintain, and increase his supply of contemplate or cover the core conduct at victims, Epstein also paid certain of his issue here: performing sexual massages victims to recruit additional girls to be for money." Id. at 1.2 n.1. Defense counsel similarly abused by Epstein. In this way, also states that "Epstein certainly recog- Epstein created a vast network of under- nizes the Court's request for further trans- age victims for him to sexually exploit in parency and is committed to providing a locations including New York and Palm complete and accurate disclosure. Accord- Beach." Id. ingly, we propose that the Court prelimi- The Indictment also charges that "the narily accept the initial [financial] disclo- victims .. . were as young as 14 years old sure proffered last Friday and, if intending at the time they were abused by [Mr. to rant bail, include a release condition Epstein] .. . and were, for various rea- directing Epstein to tender a comprehen- sons, often particularly vulnerable to ex- sive forensic accounting of his finances as ploitation." Id. II 3. "Mr. Epstein intention- expeditiously as practicable." Id. at 4. By ally sought out minors and knew that letters, dated July 16 and July 17, 2019, many of his victims were in fact under the Defense counsel also submitted informa- age of 18, [] because, in some instances, tion regarding Epstein's New Mexico sex minor victims expressly told him their offender registration status. Defense coun- age." Id. sel also stated that Epstein traveled exten- Following his arrest, on Monday, July 8, sively over the last eight months and "in- 2019, Mr. Epstein was arraigned and pre- variably returned to the to the United sented with the Indictment by Magistrate States. That inescapable reality emphati- Judge Henry Pittman. cally proves he won't flee and entitles him D. Legal Principles Governing to release - on any and all conditions the Release Venus Remand Court deems appropriate." Id. at 8. [3-5] Under the Bail Reform Act, 18 C. Indictment U.S.C. § 3142, a Court can order a defen- A grand jury voted to indict Mr. Epstein dant's detention if it determines that the on or about July 2, 2019. The Indictment defendant is either (1) a danger to the charges Mr. Epstein with two felonies in- community or (2) a risk of flight, 18 U.S.C. volving minor girls some as young as 14. * 3142(e). A Court does not need to find Count I includes conspiracy to commit sex both bases are proven to order a defen- trafficking of minor girls, in violation of 18 dant's detention. See id.; United States v. U.S.C. § 371, and Count II includes sex Blanco, 570 F. App'x 76, 78 (2d Cir. 2014). trafficking of minor girls, in violation of 18 Dangerousness means that the defendant U.S.C. § 1591. It states: "[F]rom at least in is a "danger to the safety of any other or about 2002, up to and including at least person or the community." 18 U.S.C. in or about 2005, Jeffrey Epstein, ... en- § 3142. A finding of dangerousness must ticed and recruited, and caused to be en- be supported by clear and convincing evi- ticed and recruited, minor girls to visit his dence. See, e.g., United States v. Ferranti, mansion in Manhattan, New York . .. and 66 F.3d 540, 542 (2d Cir. 1995). "Where his estate in Palm Beach, Florida, . .. to there is a strong probability that a person engage in sex acts with him, after which he will commit additional crimes if released, EFTA00076821  U.S. v. EPSTEIN 313 ale as 423 F.Supp-3d 306 (S.D.N.Y. 2019) the need to protect the community be- [9] "The rules concerning admissibility comes sufficiently compelling that deten- of evidence in criminal trials do not apply tion is, on balance, appropriate." United to the presentation and consideration of States v. Chimurenga, 760 F.2d 400, 403 information at the [release/remand] hear- (2d Cir. 1985). "[E]ven a single incident of ing." 18 U.S.C. § 3142(0(2) (emphasis witness tampering . .. [may be] sufficient added). For example, the Government is to revoke bail." LaFontaine, 210 F.3d at entitled to present evidence supporting 134. remand by way of proffer, among other [6,7] To order detention based upon means. 18 U.S.C. § 3142(0(2); see also risk of flight, the Court must find by a United States v. LaFontaine, 210 F.3cl preponderance of the evidence that "that 125, 131 (2d Cir. 2000) ("bail hearings are no conditions could reasonably assure the typically informal affairs, not substitutes defendant's presence at trial." See, e.g., for trial or even for discovery"). 18 U.S.C. United States v. Jackson, 823 F.2d 4, 5 (2d 3142(O(2)(B) expressly states that the Cir. 1987); 18 U.S.C. § 3142. "[The consti- Federal Rules of Evidence do not apply tutional limits on a detention period based at bail hearings; thus, courts often base on dangerousness to the community may detention decisions on hearsay evidence. be looser than the limits on a detention United States v. Abuhamra, 389 F.3d 309, period based solely on risk of flight. In the 321 n.7 (2d Cir. 2004) "District courts [are former case, release risks injury to others, afforded] wide discretion regarding the while in the latter case, release risks only scope of such hearings.. .." United the loss of a conviction." United States v States v. Bartok, 472 F. App./. 25, 27 (2d Milan, 4 F.3d 1038, 1048 (2d Cir. 1993) Cir. 2012). (quoting United States v. Orena, 986 F2d 628, 631 (2d Cir. 1993)). A bail package E. The Presumption of Remand that "may reasonably assure the appear- in 18 U.S.C. * 1591 Cases ance of [the defendant] at trial will not [10] A 18 U.S.C. § 1591 case involving [necessarily] assure the safety of the com- sexual victimization of a minor is unusual munity." United States v. Rodriguez, 950 in that it includes a presumption in favor F.2d 85, 89 (2d Cir. 1991). of pretrial detention, reflecting the signifi- [8] The Bail Reform Act sets forth the cant harm caused by such a crime. 18 following four• factors to be considered in U.S.C. § 3142(e)(3)(E). The presumption is the release/remand analysis: (1) the nature that no condition or combination of condi- and circumstances of the crime(s) charged; tions will reasonably assure against flight (2) the weight of the evidence against the or danger to the community. United person; (3) the history and characteristics States v. English, 629 F.3d 311, 319 (2d of the defendant, including the person's Cir. 2011) (quoting 18 U.S.C. character and financial resources; and (4) 3142(e)(3XE)). Mr. Epstein may rebut the seriousness of the danger posed by the the presumption by "coming forward with defendant's release. 18 U.S.C. § 3142(g). evidence that he does not pose a danger to "The weight afforded to each factor under the community or a risk of flight." United section 3142(g) is within the 'special prov- States v. Mercedes, 254 F2d 433, 436 (2d ince of the district court." United States v. Cir. 2001). The Government retains the Paulin, 335 F. Supp. 3d 600, 610 "ultimate burden of persuasion" that Mr. (S.D.N.Y. 2018) (quoting United States v. Epstein presents a danger to the commu- Shaker, 817 F.2d 189, 196 (2d Cir. 1987)). nity (by clear and convincing evidence) EFTA00076822 314 425 FEDERAL SUPPLEMENT, 3d SERIES and that Mr. Epstein presents a risk of New York." 7/15/19 Tr. at 72. Ms. Farmer flight (by a preponderance of the evi- said that Mr. Epstein "flew [her] to New dence). Id. Even if rebuttal evidence is Mexico" and was "inappropriate" with her. presented, "the presumption favoring de- Id. She was reluctant to go into details tention does not disappear entirely." Id. at about her experience with Mr. Epstein. Id. 436. "[It] remains a factor to be consid- at 73. Ms. Fanner opposes Mr. Epstein's ered among those weighed by the district pretrial release because she believes other court." Id. Epstein victims would "continu[e] to be victimized" and that Mr. Epstein's wealth F. Mr. Epstein Poses a Danger To and privilege and notoriety would make it Others And To the Community difficult for "[other] victims to come for- [11] The Court begins with "danger- ward." Id. at 72. ousness" because that concept is at the Ms was introduced by heart of this case. It fords that the Govern- her counsel, Brad Edwards, and said she ment has shown by clear and convincing was "sexually abused by Jeffrey Epstein evidence that Mr. Epstein threatens the starting at the age of 14." Id. at 73-74. She safety of another person and of the com- asked the Court to "keep [Mr. Epstein] in munity, as follows on pages 10-21: detention [] for the safety of any other girls out there that are going through what • Victims Have Advised The Court [she's] going through." Id. at 74. Ms. Wild That They Would Fear For Their said that Mr. Epstein is a "scary person to Safety If Mr. Epstein Were Re- have walking the streets." Id. leased • Mr. Epstein Poses A Threat to Ad- Victims have "specifically conveyed" to ditional Young Girls If He Is Re- the Government that any form of release leased of the Defendant, including home deten- tion with full-time private guards, could At the remand/release hearing on Mon- "result in [their] harassment and abuse." day, July 15, 2019, as noted, the Court Did. 11 at 4. At the bail hearing on July heard poignant testimony from two of Mr. 15, 2019, two victims movingly testified Epstein's alleged victims about their fears about their past sexual encounters with and anxiety over his potential release, even Mr. Epstein when they were minors aged if under strict conditions of home confine- 14 and 16, respectively. 7/1W19 Tr. at 72; ment. The Court is also concerned for new see also S. REP. 108-191 ("CVRA Legisla- victims. tive History"), at 22 (In enacting the Mr. Epstein's alleged excessive attrac- CVRA, Congress stated that "[V]ictims de- tion to sexual conduct with or in the pres- serve the right to be heard at specific ence of minor girls — which is said to points in the criminal justice process," in- include his soliciting and receiving massag- cluding bail hearings. "Giving victims a es from young girls and young women voice not only improves the quality of the perhaps as many as four times a day - process but can also be expected to often appears likely to be uncontrollable. See benefits to victims."). United States v. Minnici, 128 F. Appix 827, Ms Its introduced by her 829-30 (2d Cir. 2005) (defendant's alleged counsel, David Boies, and stated that she sex crimes were "of an addictive sexual was 16 years old when she "had the mis- nature that cannot be suppressed simply fortune of meeting Jeffrey Epstein [in] by a restrictive set of bail conditions"). EFTA00076823  U.S. v. EPSTEIN 315 ale as 423 F.Suppld 306 (S.D.N.Y. 2019) Accordingly, Mr. Epstein's past sexual thousands of "sexually suggestive photo- conduct is not likely to have abated or graphs" of nude underage girls and wom- been successfully suppressed by fierce de- en, and that it is corroborative in nature. termination, as his Defense Counsel sug- Id. And, it is consistent with victim recol- gests. Defense Counsel contends that. lections of the inside of Mr. Epstein's resi- "[H]e wasn't a predator that couldn't con- dence. Dkt. 11, Ex. 1 at 9. This newly trol his conduct. He disciplined himself." discovered evidence also suggests that Mr. 7/15/19 Tr. at 31-32. Defense Counsel also Epstein poses "ongoing and forward-look- argues that "appreciating the gravity of ing danger." See Dkt. 11 at 10; see also these charges .. . putting aside the age of Baker, 349 F. Supp. 3d at 1135; United these witnesses and putting the consent States v. Goodwin, 2015 WL 6386568, at *3 issue aside, it's not like [Epstein is] an out- (W.D. Ky. Oct. 21, 2015). of-control rapist." 7/15/19 'Pr. at 36. It seems fair to say that Mr. Epstein's future • The § 1591 Presumption Of Pre- behavior will be consistent with past be- trial Remand Reflects The Seri- havior, including the trove of "lewd photo- ousness Of Mr. Epstein's Alleged graphs of young-looking women or girls," Crimes which were recently uncovered during the The significant harms and dangers of July 6-7, 2019, search of Mr. Epstein's sex crimes involving minors "animated East 71st Street mansion. See Dkt. 11, Ex. Congress to create the statutory presump- 1 at 9. The search results suggest the tion of detention." United States v. Hardy, "possibility that defendant could target an- 2019 WL 2211210, at *10 (D.D.C. May 22, other vulnerable victim." See United 2019). The presumption of remand "re- States v. Baker, 349 F. Supp. 3d 1113, 1135 flects Congress's substantive judgment (D.N.M. 2018) (where the defendant was that particular classes of offenders should alleged to specifically target "vulnerable ordinarily be detained prior to trial." Unit- women" and where he attempted to con- tact an alleged victim, the court was pet ed States v. Stone, 608 F.3d 939, 945 (6th Cir. 2010). Other serious offenses that are suaded that the defendant "would be a accompanied by the presumption of re- danger to society if released"). mand are: Kidnapping (18 U.S.C. § 1201); Despite having been convicted of the Aggravated Sexual Abuse (18 U.S.C. above mentioned (two) Florida sex crimes § 2241); Sexual Abuse (18 U.S.C. § 2242); (in 2008) involving an underage girl, Mr. Offenses Resulting in Death (18 U.S.C. Epstein, as noted, maintained at his New § 2245); Sexual Exploitation of Children York residence a "vast trove" of sexually (18 U.S.C. § 2251); Selling or Buying of suggestive photographs of nude underage Children (18 U.S.C. § 2251); Production of and adult girls. Dkt. 11, Ex. 1 at 9. That is, Sexually Explicit Depictions of a Minor for during the July 6.7, 2019 authorized search importation into the United States (18 of Mr. Epstein's NYC residence, the FBI U.S.C. § 2260); Coercion and Enticement found a "substantial collection of photo- (18 U.S.C. § 2422); Transport of Minors graphic trophies of his victims and other (18 U.S.C. § 2423); Use of Interstate Facil- young females." Dkt. 11 at 10. This evi- ities to Transmit Information About a Mi- dence includes compact discs labeled nor (18 U.S.C. § 2425). 18 U.S.C. "Young [Redacted Name] + [Redacted 3142(e)(3XE). Name]," "Misc nudes 1," and Girl pies nude." Id. The Government contends that (121 The presumption of remand does this evidence includes hundreds or perhaps not disappear even when rebutted. Martir, EFTA00076824 316 425 FEDERAL SUPPLEMENT, 3d SERIES 782 F.2d at 1144. If the defendant comes Arrests," ems., in Florida in 2006; Mr. Ep- forward with evidence that he will not stein's "History [and] Conviction Involving endanger the community or flee the juris- [a] Sex [Offense]," which principally refers diction, the presumption "is not erased." to Defendant's 2008 conviction(s) for pro- See United States v. Dominguez, 783 F2d curing a person under the age of 18 for 702, 707 (7th Cir. 1986). "Rather, the pre- prostitution (a felony) and for solicitation sumption remains in the case as an eviden- of prostitution (also a felony); Mr. Ep- tiary finding militating against release, to stein's status as a registered sex offender be weighted along with other evidence." in New York, Florida and the Virgin Is- United States v. Hir, 517 F.3cl 1081, 1086 lands; and Mr. Epstein's "Pattern of Simi- (9th Cir. 2008); see also Martir, 782 F2d at lar Criminal Activity History." Id. 1144 ("The concern underlying the pre- sumption applies to the general class of • The Seriousness Of The Crimes defendants charged with one of the speci- That Mr. Epstein Has Been fied offenses—not merely to defendants Charged With Is Also Reflected In who fail to produce rebuttal evidence. The Fact That The Crimes Involve Were the presumption ... to vanish upon Minor Children any showing ..., courts would be giving Mr. Epstein is said by the Government too little deference to Congress' findings to be "a serial sexual predator" who alleg- regarding this class) (emphasis in original). edly victimized dozens (or more) of minor girls, including a 14 year• old.' He was • The US. Pretrial Services Depart- involved in and undertook the alleged sex- ment Recommends To The Court ual activity in several locations, including, That Mr. Epstein Continue to Be his mansion in Manhattan and his estate in Remanded Palm Beach, Florida. Indictment tl 2. By The Pretrial Services report, dated July "actively encourage[ing] certain of his [mi- 8, 2019, concludes, following Pretrial Ser- nor] victims to recruit additional girls to be vices' interview of Mr. Epstein, that similarly sexually abused," Mr. Epstein is "[t]here is no condition or combination of said to have "created a vast network of conditions that [can] reasonably assure ... underage victims for him to exploit" Dkt. the safety of the community" if Mr. Ep- 11, Ex. 1 at 2. stein is released. Pretrial Services Report, The Government alleges that Mr. Ep- dated July 8, 2019, at 4. Pretrial Services stein "intentionally sought out—and knew also concluded that Mr. Epstein is a flight that he was abusing—minors. Indeed, in risk and recommends that he be detained some instances, his victims expressly told for that reason as well. Id. him they were underage before or during In support of its assessment of Mr. Ep- the period in which he abused them." Id. stein's dangerousness, Pretrial Services The crimes with which Mr. Epstein is cites the following: the "Nature of [Mr. charged carry a maximum sentence of 45 Epstein's currently charged] Instant Of- years of incarceration. Id. at 5. "[T]he fence," i.e., sex trafficking and conspiracy deprivation of liberty imposed by impris- involving minor girls; Mr. Epstein's "Prior onment makes that penalty the best indi- I. Mr. Epstein is reported to have remarked Amber Southerland, Billionaire Jeffrey Ep- that: "I'm not a 'sexual predator,' I'm an stein: I'm a sex offender, not a predator, New 'offender' ... Its the difference between a York Post. Feb. 25. 2011. murderer and a person who steals a bagel." EFTA00076825  U.S. v. EPSTEIN 317 Chess425 F.Supp.34 306 (S.D.N.Y. 2019) cator of whether the legislature considered sated and those who hurt [Mr. Epstein] an offense to be .. . `serious." United will be dealt with." Dkt. 11, Ex. 3 at 2 States v. Dugan, 667 F.3d 84, 86 (2d Cir. (emphasis added.) The Report also states: 2011) (quoting Lewis v. United States, 518 "[Mr. Epstein's representative] assured U.S. 322, 326, 116 S.Ct. 2163, 135 L.Ed2d [the victim that] she would receive mone- 590 (1996)). tary compensation for her assistance in not And, the crimes Mr. Epstein has been cooperating with law enforcement." Id. An- charged with are among the most heinous other (undated) Palm Beach Police Inci- in t