EFTA01072101.pdf

Case: 13-12923 Date Tied 66112/2013 Page: 1 of 23 Nos. 13-12923, 13-12926, 13-12928 IN THE Einiteb ibtateo Court of appeato FOR THE ELEVENTH CIRCUIT JANE DOE NO. 1 AND JANE DOE NO. 2, Plaintii9's-Appellees v. UNITED STATES OF AMERICA, Defendant-Appellee ROY BLACK ET AL., Intervenors-Appellants OPPOSITION TO MOTION FOR STAY OF DISTRICT COURT DISCOVERY ORDER PENDING APPEAL AND REQUEST FOR AN EXPEDITED RULING Bradley J. Edwards Paul G. Cassell FARMER, JAFFEE, WEISSING S. J. Quinney College of Law at EDWARDS, FISTOS & LEHRMAN, P.L. the University of Utah 425 North Andrews Ave., Suite 2 332 S. 1400 E., Room 101 Fort Lauderdale, FL 33301 Salt Lake City, UT 84112 (954) 524-2820 (801) 585-5202 brad@oathtojustice.com cassellp@law.utah.edu Attorneys for Plaintiffs-Appellees Jane Doe No.1 and Jane Doe No. 2 EFTA01072101  Case: 13-12923 Date Writ 611112/2013 Page: 2 of 23 OPPOSITION TO MOTION FOR STAY OF DISTRICT COURT DISCOVERY ORDER PENDING APPEAL AND REQUEST FOR AN EXPEDITED RULING INTRODUCTION Appellees Jane Doe No. 1 and Jane Doe No. 2 ("the victims") respectfully file this opposition to the motion for a stay pending appeal filed by intervenors- appellants' Roy Black, Jeffrey Epstein and Martin Weinberg (collectively referred to as "Epstein"). At issue is correspondence between federal prosecutors and Epstein's criminal defense attorneys concerning plea negotiations. The victims have alleged that this correspondence is necessary to establish a factual record to rule on their petition alleging violations of their rights under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771(a). The district court has agreed, entering a discovery order requiring the Government to produce its copies of the correspondence to the victims on July 19, 2013. Epstein filed a notice of interlocutory appeal from that order and sought a stay in the district court below pending review by this Court. The district court denied Epstein's motion for a stay, finding no likelihood of success on the merits as well as no balance of equities weighing in favor of granting the stay. Epstein now asks this Court to overrule the district court and enter its own stay pending EFTA01072102  Case: 13-12923 Date Rad 611112/2013 Page: 3 of 23 appeal, claiming that he will prevail on his claim that correspondence his attorneys sent to federal prosecutors is somehow "privileged and confidential" (Stay Motion at 1) and thus barred from disclosure by the Government. Epstein has no likelihood of success on the merits of that spurious claim. Nor can he carry his burden on any of the other factors necessary to obtain a stay pending appeal. According, this Court should deny Epstein's request for a stay. This Court should do so on an expedited basis, ruling on or before July 19, 2013 so as not to disrupt on-going district court proceedings. FACTUAL BACKGROUND This interlocutory appeal arises from a petition filed in the district court by two acknowledged crime victims, Jane Doe No. 1 and Jane Doe No. 2. In their petition, they sought to enforce their rights under the Crime Victims' Rights Act (CVRA), 18 U.S.C. § 3771, in connection with federal sex offenses committed against them by Jeffrey Epstein. As described at greater length in their pending motion to dismiss,' in a petition filed on July 9, 2008, the victims' alleged that the Government violated its obligations under the CVRA to confer with them regarding a non-prosecution agreement (NPA) it negotiated with Jeffrey Epstein. The victims have spent many months attempting to negotiate with the Government to reach an agreed statement of facts concerning these negotiations. But the See Victims' Motion to Dismiss Non-Party Interlocutory Appeal (filed July 2, 2013). 2 EFTA01072103  Case: 13-12923 Date FOItcif 6412/2013 Page: 4 of 23 Government ultimately refused to stipulate to any facts regarding how it treated the victims during the negotiation process. DE 49 at 1-7. Accordingly, on March 21, 2011, the victims filed a Motion for Finding of Violations of the CVRA and a supporting statement of proposed facts, with many of allegations relating to the Government's negotiations of the NPA. DE 48. The victims also filed a motion to have their facts accepted because of the Government's failure to contest their facts. DE 49. The victims finally filed a motion to use the correspondence that they had previously received from Epstein in their civil case in their CVRA case. DE 51. On April 7, 2011, Epstein's criminal defense attorneys — appellants Roy Black and Martin Weinberg — filed a motion for limited intervention in the case, arguing that their right to confidentiality in the correspondence would be violated if the victims were allowed to use the correspondence. Jeffrey Epstein also later filed his own motion to intervene to object to release of the correspondence. DE 93. Epstein and his attorneys ultimately filed a motion for a protective order, asking the Court to bar release of the correspondence. DE 160. 2 At no point, however, did Epstein or his attorneys provide any affidavits or other factual information establishing that the correspondence was confidential. While these intervention motions were pending, on September 26, 2011, the 2 In the district court, the Government did not oppose the victims' efforts to use the correspondence to prove their case. See Hearing Tr. Aug 12, 2011, at 65-68. 3 EFTA01072104  Case: 13-12923 Date Feredf 611112/2013 Page: 5 of 23 district court partially granted the victims' motion for a finding of violations of the CVRA, rejecting the Government's argument that it did not have to provide CVRA rights to the victims during negotiation of the NPA because it had not formally indicted Epstein. DE 99 at 10. The Court then observed that it needed a factual record on which to proceed: "Having determined that as a matter of law the CVRA can apply before formal charges are filed, the Court must address whether the particular rights asserted here attached and, if so, whether the U.S. Attorney's Office violated those rights. However, the Court lacks a factual record to support such findings and must therefore defer ruling on these two issues pending . . . limited discovery . . . ." DE 99 at 10. Based on the Government's concession that it was empowered to do so, the court also authorized the victims to conduct limited discovery in the form of requests for production of documents and requests for admissions directed to the U.S. Attorney's Office, with leave for either party to request additional discovery as appropriate. DE 99 at 11. The victims then requested discovery from the Government, including correspondence between the Government and Epstein's attorney regarding the non-prosecution agreement. On November 8, 2011, the day on which the Government was due to produce discovery, it instead moved to dismiss the entire CVRA proceeding for alleged lack of subject matter jurisdiction (DE 119), and obtained a stay of 4 EFTA01072105  Case: 13-12923 Date Fgedf 611112/2013 Page: 6 of 23 discovery pending resolution of that motion (DE 121, 123). On March 29, 2012, the district court turned to the motions to intervene, granting both Epstein's motion to intervene (DE 159) and his attorneys' motion to intervene (DE 158). The Court emphasized, however, that the question of the merits of the objections raised remained to be determined. After additional pleadings and motions, on June 18, 2013, the district court denied Epstein's motion to bar release of the plea bargain correspondence by the Government. DE 188. The district court began by noting that the same arguments that Epstein was raising to bar disclosure of the correspondence had previously been rejected in one of the victims' parallel federal civil lawsuits. Id. at 3-4. The district court then rejected Epstein's argument that the correspondence was protected under Fed. R. Evid. 410, because that Rule by its on terms does not apply in situations where a defendant later pleads guilty. Id. at 4-5. The district court next rejected Epstein's argument that it should invent a new "plea negotiations" privilege that would apply to the correspondence. The district court explained that "Congress has already addressed the competing policy interests raised by plea discussion evidence with the passage of the plea-statement rules found at Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410, which generally prohibits admission at trial of a defendant's statements made during plea discussions, without carving out any special privilege relating to plea discussion materials. Considering the 5 EFTA01072106  Case: 13-12923 Date ROW( 69112/2013 Page: 7 of 23 Congressional forbearance on this issue — and the presumptively public nature of plea agreements in this District —, this court declines the intervenors' invitation to expand Rule 410 by crafting a federal common law privilege for plea discussions." DE 188 at 7-8. The next day, the district court entered a detailed written opinion denying the Government's motion to dismiss. DE 189. In light of the conclusion that the case should move forward, the District Court explained that it was then "obligated to decide whether, as crime victims, petitioners have asserted valid reasons why the court should vacate or re-open the non-prosecution agreement reached between Epstein and the [U.S. Attorney's Office]. Whether the evidentiary proofs will entitle them to that relief is a question properly reserved for determination upon a fully developed evidentiary record." DE 189 at 11-12. The Court then entered on order lifting its previous stay of discovery, and ordering the Government to begin to produce the requested discovery, including the correspondence. DE 190. It directed the Government to produce discovery no later than July 19, 2013 and established a schedule for resolving future discovery issues. Id. at 3. On June 27, 2013, Epstein and his attorneys filed notices of appeal from the district court's denial of efforts of block release of the plea bargain correspondence. DE's 194-96. On July 2, 2013, the victims filed a motion to dismiss Epstein's interlocutory appeal, explaining that this Court lacked 6 EFTA01072107  Case: 13-12923 Date FOBedt 68712/2013 Page: 8 of 23 jurisdiction in light of Mohawk Industries v. Carpenter, 558 U.S. 100 (2009). On June 26, 2013, Epstein sought a stay of the district court pending appeal. DE 193. Two days later, the victims opposed the stay. DE 198. On July 8, 2013, the district court denied Epstein's motion for a stay pending appeal. DE 206.3 The district court explained that the "granting of a motion to stay pending appeal is an extraordinary remedy granted only on a showing of a `probable likelihood of success on the merits on appeal,' or upon a lesser showing of a `substantial case on the merits when the balance of the equities weighs heavily in favor of granting the stay.'" DE 206 at 2 (citing United States v. Hamilton, 963 F.2d 322 (11th Cir. 1992) (internal quotations omitted)). Citing relevant caselaw, the district court found that Epstein had "neither demonstrated a probable likelihood of success on the merits on appeal . . . nor that the balance of equities weighs heavily in favor of granting a stay." DE 206 at 2-3. The District Court accordingly denied the stay. To give this Court an opportunity to review the issue, however, the district court allowed Epstein until July 15, 2013, to seek a stay from this Court. Contingent on such an application for a stay, the district court entered a "temporary" stay that "shall remain in effect pending the Eleventh Circuit's disposition of [Epstein's] application for [a] stay" before this Court. DE 206 at 3. On July 12, 2013, Epstein filed his motion for stay with this Court. This 3 A copy of the district court's order is attached to this response at Attachment A. 7 EFTA01072108  Case: 13-12923 Date Rliecif 69112/2013 Page: 9 of 23 opposition from the victims follows. ARGUMENT The litigation below has been under the careful management of the district court for more than five years. A critical factual dispute has arisen about how the Government treated the victims during the plea negotiation process, which has led the district court to direct the Government to provide certain correspondence to the victims relevant to that issue. The district court carefully considered Epstein's arguments against releasing that correspondence, ruling against Epstein on the merits in detailed written opinion. DE 188. The district court has also rejected Epstein request for a stay. DE 206. This Court should give considerable weight to the district court's assessment of the merits of Epstein's claim, as well as the district court's conclusion that no stay is currently required, and reject Epstein's efforts to obtain a stay here. Epstein has no chance of success on the merits of his claims and the equities all weigh in favor of the victims. This Court should also expedite its ruling on Epstein's request for a stay to avoid disrupting on-going district court proceedings. I. A STAY PENDING AN INTERLOCUTORY APPEAL IS AN EXCEPTIONAL REMEDY THAT REQUIRES AN EXCEPTIONAL SHOWING. Epstein has asked this Court to jump into the middle of a long-running case and stay a district court discovery order directed at the Government. He also asks 8 EFTA01072109  Case: 13-12923 Date F(Cliftlot)M2/2013 Page: 10 of 23 this Court to do so on an emergency, interlocutory basis. Of course, this is an exceptional request that requires an exceptional justification. District court judges "play a special role in managing ongoing litigation. The district judge can better exercise [his or her] responsibility [to police prejudgment tactics of litigants] if the appellate courts do not repeatedly intervene to second-guess prejudgment rulings." Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (internal citations omitted). This Court has repeatedly explained its reluctant to grant a stay pending appeal: "The grant of an emergency motion to stay a district court's order is an exceptional remedy, which will be granted only upon a showing that: (1) the movant is likely to prevail on the merits on appeal; (2) absent a stay, the movant will suffer irreparable damage; (3) the non-movant will suffer no substantial harm from the issuance of the stay; and (4) the public interest will be served by issuing the stay." Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir.1986) (emphases added). This Court has also explained that "[o]rdinarily, the first factor is the most important and, in order to find a likelihood of success on the merits, we must find that the district court's decision was clearly erroneous." Id. (emphasis added). Absent being able to establish the first factor, a movant for a stay can obtain relief only upon a "showing of a substantial case on the merits [and] . . . the balance of the equities [identified in factors 2, 3, and 4] weighs heavily in favor of granting 9 EFTA01072110  Case: 13-12923 Date F(fladoDM2/2013 Page: 11 of 23 the stay." Id. at 1454 (internal quotation omitted). In this case, Epstein cannot show that any of the factors weigh in his favor, much less that exceptional relief is appropriate. Accordingly, this Court should deny his requested stay. II. EPSTEIN CANNOT CARRY HIS BURDEN OF DEMONSTRATING A LIKELIHOOD OF PREVAILING ON THE MERITS OF HIS NOVEL ARGUMENTS. To even describe Epstein's claim is to demonstrate how far-fetched it is. The argument Epstein is pressing before this Court is that correspondence his defense attorneys sent to federal prosecutors is somehow "privileged and confidential" and therefore the district court cannot order the Government to release it as part of discovery. Epstein is not asserting that he had a confidential relationship with an ally, such as his defense attorney, his doctor, or his psycho- therapist; to the contrary, Epstein is asserting that he had such relationship with his adversary — federal prosecutors who were trying to convict him of numerous sex offenses. The district court properly rejected that dubious claim and Epstein has no likelihood of success before this Court. In an effort to make his claim seem plausible, Epstein contends that the district court's decision drastically reshapes the landscape of criminal settlement negotiations by eliminating expectations of privacy on which criminal defense attorneys rely. Stay Mot. at 7-8. Not so. It is unclear why a defense attorney I0 EFTA01072111  Case: 13-12923 Date F(ClatiotR142/2013 Page: 12 of 23 would think that something he said to his adversary in litigation — a prosecutor — would somehow be confidential. In any event, under the Crime Victims' Rights Act, crime victims are plainly entitled to "confer" with prosecutors about important stages of criminal proceedings, including plea proceedings. See 18 U.S.C. § 3771(a)(5). If Epstein and other defense attorneys want to engage in plea discussions with federal prosecutors,4 they must now be aware that prosecutors will confer with victims about these plea arrangements. Indeed, the Attorney General has promulgated guidelines requiring such conferences. See U.S. DEPT. OF JUSTICE, ATTORNEY GENERAL GUIDELINES FOR VICTIM-WITNESS ASSISTANCE 41 (2012) ("Federal prosecutors should be available to confer with victims about major case decisions, such as . . . plea negotiations . . . ."). Moreover, the plea negotiations in this case were far from ordinary. The victims have alleged, with very specific evidence, that Epstein negotiated with prosecutors to arrange violations of the Crime Victims' Rights Act. See DE 48 at 7-17.5 Regardless of whether these allegations are true,6 criminal defense attorneys can hardly complain when they crime victims seek to learn about negotiation on the subject of notifications to crime victims. 4 • It is well settled that "there is no constitution right to plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561 (1977). s copy of the victims' pleading is attached to this response at Attachment B. A 6 Epstein has never contested these allegations and at this early stage in the proceedings that allegations must be assumed to be true. II EFTA01072112  Case: 13-12923 Date F(CIE3JoIREC)2/2013 Page: 13 of 23 Epstein also contends that his correspondence with prosecutors somehow falls within the "heartland" of Rule 410 of the Federal Rules of Evidence. Stay Motion at 1. But he fails to demonstrate that the correspondence falls within the text of the Rule. As the District Court carefully explained, the rule only protects communications when no guilty plea was reached. But "[t]he communications between Epstein's counsel and federal prosecutors at issue here ultimately did result in entry of a plea of guilty by Epstein — to specific state court felony charges — thereby removing the statements from the narrow orbit of `statement[s] made during plea discussions . . . if the discussions did not result in a guilty plea . . . which are inadmissible in proceedings against the defendant making them under Rule 410." DE 188 at 5 (emphasis added) (citing United States v. Paden, 908 F.2d 1229, 1235 (5th Cir. 1990) (statements made during negotiations that resulted in a final plea of guilty not protected under Rule 410), cert. denied, 498 U.S. 1039 (1991)). Perhaps recognizing the weakness of his argument based on Rule 410, as a fallback argument Epstein asked the district court to create a brand new privilege for "communications in the course of settlement/plea negotiations." DE 193 at 10. But as the district court carefully explained: "Congress has already addressed the competing policy interests raised by plea discussion evidence with the passage of the plea-statement rules found at Fed. R. Crim. P. 11(0 and Fed. R Evid. 410, 12 EFTA01072113  Case: 13-12923 Date F(CletoIRM2/2013 Page: 14 of 23 which generally prohibits admission at trial of a defendant's statements made during plea discussions, without carving out any special privilege relating to plea discussion materials. Considering the Congressional forbearance on this issue — and the presumptively public nature of plea agreements in this District —, this court declines the intervenors' invitation to expand Rule 410 by crafting a federal common law privilege for plea discussions." DE 188 at 9 (collecting supporting authorities). Finally, it is worth underscoring that entirely apart from the merits of Epstein's appeal, whether he can even take an interlocutory appeal at this stage in the proceedings is contested. In their pending motion to dismiss, the victims have explained at length why Epstein is not able to take an interlocutory appeal to this Court. In rejecting Epstein's motion for a stay, the district court properly recognized that "[t]here is also a substantial question as to whether the denial of a motion for a protective order against compelled disclosure of allegedly privileged communications is immediately appealable . . . ." DE 206 at 2 n.2. For this reason alone, Epstein cannot show a likelihood of success on the merits of his interlocutory appeal. In sum, far from being clearly erroneous, the district court's rejection of Epstein's claim was clearly correct. Epstein thus falls far short of carrying his burden to obtain a stay. 13 EFTA01072114  Case: 13-12923 Date F(IfEdo06042/2013 Page: 15 of 23 III. EPSTEIN WILL NOT SUFFER IRREMEDIABLE HARM FROM DISCLOSURE OF THE CORRESPONDENCE TO THE VICTIMS. Epstein's motion for a stay also founders on the fact that he will not suffer "irreparable injury" from the district court's order directing the Government to produce the materials. Epstein's pleading alludes to the importance of confidentiality in the plea bargaining process generally. But he never specifically explains how turning over the correspondence to counsel for the victims will specifically harm him. It is not enough for Epstein to show that he does not want the victims to read the correspondence. Epstein must present evidence that he will be injured — and injured irreparably — if the victims read the correspondence. See, e.g., Northeastern Florida Chapter of Ass 'n of General Contractors of America v. City of Jacksonville, Fla., 896 F.2d 1283, 1286 (11th Cir. 1990) ("Because plaintiff presented no evidence on the issue, we cannot agree that irreparable injury is `apparent"'.). As the Government properly explained below, a claimant asserting a privilege involving alleged confidential communications bears the burden of demonstrating the alleged confidentiality of that relationship. DE 98 at 3. Yet despite the clear fact that the burden lies on Epstein to provide evidence of the alleged confidentiality of his discussions with federal prosecutors, he never presented any evidence on that point — much less the required point that breaching that confidentiality would cause irreparable harm. Of course, an appeal is too late 14 EFTA01072115  Case: 13-12923 Date RthrtdoD913)2/2013 Page: 16 of 23 in the day to build the appropriate evidentiary record that the correspondence was confidential.' In an effort to prove irreparable injury, Epstein cites various authorities about "confidential" documents. See stay Stay Motion at 17 n.3 But none of these cases involved anything remotely like what Epstein is attempting to assert is "confidential" here: discussions not with his friends but with foes — i.e., criminal prosecutors seeking to force him to plead guilty to criminal charge. Moreover, the cases Epstein relies upon are older cases, decided before the Supreme Court's recent decision in Mohawk. The Mohawk decision makes clear that even as to highly sensitive attorney-client materials, "[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected materials and its fruits are excluded from evidence." 130 S.Ct. at 606-07. In short, Epstein has not shown that he will suffer injury from the district court's order, much less irreparable injury. IV. THE VICTIMS WILL BE PREJUDICED BY A STAY. 'Any evidentiary record would also have to consider the fact that that the victims' counsel have already seen significant parts of the correspondence in July 2011, when Magistrate Judge Johnson ordered it produced in a parallel civil lawsuit. DE 188 at 3. 15 EFTA01072116  Case: 13-12923 Date F(cle7doIRM2/2013 Page: 17 of 23 Epstein next contends that the victims will not be a prejudiced by a stay. Stay Motion at 17-18. In advancing his arguments, Epstein makes inaccurate representations about the course of these proceedings over the last several years — representations the victims do not concede.s What is relevant to the stay motion at hand is Epstein's suggestion that the victims have no real need for the correspondence. But as Epstein knows, the district court has found that the existing record is insufficient to grant the victims any relief at this time (DE 99 at 11; DE 189 at 11-12), which is one of several reasons why the victims need the correspondence to move forward with their case. Epstein also suggests that the victims have been slow in moving their case forward. But as the district court was well aware, much of the delay in this case has come from intransigence of the Government, which has strung out negotiations about what the facts are in this case. See DE 49 at 1-7. The Government also obtained a stay of the proceedings below for more than one-and-a-half years (DE 121 and 123, discussed in DE 189 at 5), which was only recently lifted. Most significantly, Epstein does not discuss the fact that the victims are being prejudiced by any further delay in this case. As Epstein is no doubt aware, 8 For example, Epstein claims that the victims conceded that the victims conceded there was no need to proceed on an emergency basis. Stay Motion at 5. But this early proceeding occurred just a few days into the litigation, before the victims even knew about the existence of the secret non-prosecution agreement that has since been revealed to them. 16 EFTA01072117  Case: 13-12923 Date ITIEtIoD6412/2013 Page: 18 of 23 the applicable statute of limitations for prosecuting him for his federal sex abuse crimes appears to be ten years. 18 U.S.C. § 3283. Epstein sexually abused Jane Doe #1 and Jane Doe #2 (and dozens of other similarly situated young girls) from 2002 to 2005. As a result, if Epstein can succeed in stalling this case for another two years, then he will have successfully "run out the clock" on his criminal liability. Every week that goes by is effectively another criminal charge that Epstein has avoided. As a result, the victims are irreparably harmed in their ability to seek prosecution of Epstein by any further delay in resolution of their case. V. THE PUBLIC INTEREST WILL NOT BE SERVED BY ALLOWING EPSTEIN TO APPEAL. Epstein finally claims that a delaying this case through a stay is somehow in the public interest. Stay Motion at 19-20. But nothing could be further from the truth. A stay will only serve to delay the victims' effort to vindicate their rights under the CVRA, a clear indication that the public interest is not being served. See United States v. Alabama, 691 F.3d 1269, 1301 (11th Cir. 2012) ("Frustration of federal statutes and prerogatives are not in the public interest . . . ."). Moreover, the public is keenly interested in having the victims' allegations resolved. The fundamental issue in this case is just how it was possible for a politically-connected billionaire who had sexually abused dozens of young girls to obtain a sweetheart plea deal with the federal government in which he served little prison time. See, e.g., Abby Goodnough, Questions of Preferential Treatment Are 17 EFTA01072118  Case: 13-12923 Date Rilkaiol:68)2/2013 Page: 19 of 23 Raised in Florida Sex Case, N.Y. Times, Sept. 3, 2006, at 19 (noting questions that the public had been left "to wonder whether the system tilted in favor of a wealthy, well-connected alleged perpetrator and against very young girls who are alleged victims of sex crimes").9 Denying a stay will not begin to answer all of the public's questions about this case. But it will at least move this case one step closer to resolution, which is what the public interest demands. VI. TO AVOID INTERFERING WITH THE ON-GOING PROCEEDINGS BELOW, THIS COURT SHOULD DENY EPSTEIN'S STAY BY JULY 19, 2013, OR AS SOON THEREAFTER AS POSSIBLE. The order that Epstein seeks to stay directs the Government to produce the correspondence at issue by July 19, 2013. DE 190 at 2. There is a need for a quick ruling on whether to stay that order. To permit this Court to review the question, the district court has entered a temporary stay pending disposition of Epstein's stay request before this Court. The district court's "temporary" stay will continue indefinitely until this Court rules, functionally giving Epstein a stay for as long as Indeed, the interest in the matter is strong enough that the widely-viewed television program Law and Order: Special Victim Unit devoted an episode to it recently, suggesting in its plot that federal government had intervened improperly to prevent effective prosecution. See Law & Order Commemorates Jay Epstein Taste for Teen Hookers, http://gawker.comM5751094/law--order- commemorates-jeffrey-epsteins-taste-for-teen-hookers. Also, there is strong media interest in the case, because of the "growing scandal over the friendship that Prince Andrew, 51, fourth in line for the throne, has maintained with the multimillionaire, a registered sex offender [Jeffrey Epstein]." Jose Lambiet, Prince's Friendship with Pedophile Causes Furor Across the Pond, Palm Beach Post, Mar. 9, 2011, at 2B. 18 EFTA01072119  Case: 13-12923 Date 1:020:1001142/2013 Page: 20 of 23 proceedings continue before this Court — even though the district court has held that Epstein is not entitled to any stay and even though the burden of proving entitlement to a stay rests on him as the moving party. Arkansas Peace Center v. Arkansas Dept of Pollution Control, 992 F.2d 145 (8th Cir. 1993). As part of the discovery order that Epstein challenges, the district court has also crafted a briefing schedule to resolve outstanding discovery issues to begin to bring this case towards resolution. DE 190 at 3-4. Production of the correspondence is an important part of that schedule. If Epstein succeeds in extending the "temporary" stay beyond July 19, that delay could thwart that schedule and obstruct the district court's ability to resolve the pending discovery issues. Under the CVRA, the victims have a right to have the district court "take up and decide any motion asserting a victim's right forthwith." 18 U.S.C. § 3771(d)(3). Yet because of delays created by the Government and Epstein, the victim have yet to have a ruling on their petition, which they filed in 2008. This Court should not further extend the delay in this case, but instead should rule on Epstein's motion on or before July 19, so as not to interfere with the district court's ability to manage this case. 19 EFTA01072120  Case: 13-12923 Date MdoDM2/2013 Page: 21 of 23 CONCLUSION For all the foregoing reasons, the Court should deny Epstein's request for a stay of the district court's discovery order. The Court should rule on or before July 19, 2013. DATED: July 12.2013 20 EFTA01072121 Case: 13-12923 Date F0RZA:16742/2013 Page: 22 of 23 Respectfully Submitted, Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: cassellp@law.utah.edu and Bradley J. Edwards FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone (954) 524-2820 Facsimile (954) 524-2822 Florida Bar No.: 542075 E-mail: brad@pathtojustice.com (Application for admission to the Eleventh Circuit bar pending) Attorneys for Jane Doe No. I and Jane Doe No. 2 EFTA01072122  Case: 13-12923 Date Olio09E2/2013 Page: 23 of 23 CERTIFICATE OF SERVICE The foregoing document was served on July 12, 2013, on the following using the Court's CM/ECF system: Dexter Lee A. Marie Villafatia Assistant U.S. Attorneys 500 S. Australian Ave., Suite 400 West Palm Beach, FL 33401 (561) 820-8711 Fax: (561) 820-8777 E-mail: Dexter.Lee@usdoj.gov E-mail: ann.marie.c.villafana@usdoj.gov Attorneys for the Government Roy Black, Esq. Jackie Perczek, Esq. Black, Srebnick, Kornspan & Stumpf, P.A. 201 South Biscayne Boulevard Suite 1300 Miami, FL 33131 E-mail: rblack@royblack.com E-mail: jperczek@royblack.com (305) 37106421 (305) 358-2006 Martin G. Weinberg Martin G. Weinberg, PC 20 PARK PLZ STE 1000 Boston, MA 02116-4301 Email: owlmgw@att.net (617) 227-3700 Paul G. Cassell EFTA01072123 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 1 of 3 Case: 13-12923 Date (2illocif 68112/2013 Page: 1 of 3 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE No. 08-80736-CIV-MARRA JANE DOE I AND JANE DOE 2, petitioners, VS. UNITED STATES OF AMERICA, defendant. ORDER DENYING INTERVENORS' MOTION TO STAY PENDING APPEAL AND IMPOSING TEMPORARY SEVEN (7) DAY STAY PENDING APPELLATE REVIEW OF ORDER DENYING MOTION FOR STAY THIS CAUSE is before the court on the motion of Intervenors Roy Black, Martin Weinberg, Jay Lefkowitz and Jeffrey Epstein, for a stay of this court's order entered June 18, 2013 compelling disclosure of communications between intervenors and federal prosecutors in the Southern District of Florida [DE 193], together with petitioners' response in opposition to the request for stay [DE 198]. Intervenors appeal the June 18, 2013 order contesting this court's determination that the communications in question are not shielded from compelled disclosure in this Crime Victims Rights Act ("CVRA") proceeding by principles of work product privilege; grand jury secrecy; restrictions on the admissibility of statements made during plea discussions under circumstances prescribed by Fed. R. Evid. 410, or the crafting of a new common law privilege under Fed. R. Evid. 501. Intervenors ask the court to stay this order pending the outcome of an interlocutory appeal contemporaneously lodged by Intervenors Roy Black, Jeffrey Epstein and Martin Weinberg [DE 194, 195 and 196] . EFTA01072124 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 2 of 3 Case: 13-12923 DateWed 68712/2013 Page: 2 of 3 The granting of a motion to stay pending appeal is an extraordinary remedy granted only on a showing of a "probable likelihood of success on the merits on appeal," or upon a lesser showing of a "'substantial case on the merits' when 'the balance of the equities weighs heavily in favor of granting the stay.'" ' United States v. Hamilton, 963 F.2d 322 (11'h Cir. 1992), citing Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11'h Cir. 1986)(quoting Ruiz v. Estelle, 650 F.2d 555, 565 (5'h Cir. 1981), cert. den., 460 U.S. 1042 (1983). In this case, intervenors have neither demonstrated a probable likelihood of success on the merits on appeal, 2 see e.g. In re MSTG, Inc., 675 F.3d 1337 (71h Cir. 2012) (rejecting request for recognition of new privilege for settlement discussions; finding need for confidence and trust alone insufficient reason to create a new privilege, and noting that Congress, in enacting Fed. R. Civ. Evid. 408, governing admissibility of statements made during "compromise negotiations, " did not take additional step of protecting settlement negotiations from discovery); In re Qwest Communications International, Inc., 450 F.3d 1179 (10th Cir. 2006) (noting circuit courts' near Absent being able to establish the likelihood of success on the merits, a movant for emergency stay relief must show that the "equities" — measured by whether movant will suffer irreparable damage absent a stay; whether the nonmoving party will suffer no substantial harm from issuance of a stay and whether the public interest will be served by issuing the stay — all tip strongly in his or her favor. Robles Antonio v. Barrios Bello, 2004 WL 1895123 (11th Cir. 2004), citing Garcia - Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986). Intervenors fail to make this alternative lesser showing as well. 2 There is also a substantial question as to whether the denial of a motion for protective order against compelled disclosure of allegedly privileged communications is immediately appealable under the Perlman doctrine, which derives from the criminal grand jury context, Penman v United States, 247 U.S. 7 (1918), as urged by intervenors as the jurisdictional premise for their interlocutory appeal. See e.g. United States v. Copar Pumice Co., Inc., 714 F.3d 1197, 1206-1209 (10ih Cir., May 6, 2013) (questioning limited scope and vitality of Perlman following Mohawk Industries v. Carpenter, 558 U.S. 100, 130 S. Ct. 599, 175 L. Ed.2d 458 (2009) (class of collaterally appealable orders does not extend to disclosure orders adverse to attorney-client privilege) and cases cited infra. EFTA01072125 Case 9:08-cv-80736-KAM Document 206 Entered on FLSD Docket 07/08/2013 Page 3 of 3 Case: 13-12923 Date Rifedf 69)12/2013 Page: 3 of 3 unanimous rejection of selective waiver concept as applied to attorney-client and work-product privileges), nor that the balance of equities weighs heavily in favor of granting a stay. It is therefore ORDERED AND ADJUDGED: I. The Intervenors' motion to stay the court's June 18, 2013 order pending interlocutory appeal [DE 193] is DENIED. 2. However, this court shall temporarily stay its June 18, 2013 compelling disclosure of communications between intervenors and federal prosecutors for a period of seven (7) days from entry ofthis order, up through and including Monday, July 15, 2013, in order to permit intervenors an opportunity to renew their request for stay relief before the Eleventh Circuit Court of Appeals. If intervenors apply for a stay in the Court ofAppeals on or before July 15, 2013, the temporary stay imposed by this order shall remain in effect pending the Eleventh Circuit's disposition of the application for stay. DONE AND ORDERED in Chambers at West Palm Beach, Florida this 6ih day of July, 2013. /en Kenneth A. Marra United States District Judge cc. All counsel EFTA01072126 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 1 of 42 Case: 13-12923 Date Mai:din:012/2013 Page: 1 of 42 RT UNITED STATES DISTRICT COU RID A SOUTHERN DISTRICT OF FLO nson Case No. 08-80736-Civ-Marra/Joh JANE DOE #1 and JANE DOE #2 v. UNITED STATES LATIONS OF MOTION FOR FINDING OF VIO JANE DOE #1 AND JANE DOE #2'S HEA RING ON ACT AND REQUEST FOR A THE CRIME VICTIMS' RIGHTS APPROPRIATE REMEDIES ), by and #2 (also referred to as "the victims" COME NOW Jane Doe #1 and Jane Doe r for a finding from this Court that the victims' rights unde through undersigned counsel, to move ted by the U.S. RA), 18 U.S.C. § 3771, have been viola the Crime Victims Rights Act (CV tions. ing on the appropriate remedies for these viola Attorney's Office, and to request a hear have failed to of facts to the Government, which they The victims have proffered a series rney's Office has e facts,' it is clear that the U.S. Atto contest. Proceeding on the basis of thes er with ected CVR A rights, including their right to conf repeatedly violated the victims' prot secution agreement the and specifically about a non-pro prosecutors generally about the case See 18 U.S.C. as well as their right to fair treatment. Office signed with the defendant, 3771(a)(5) & (8). . Attorney's ple, that in September 2007, the U.S It is now beyond dispute, for exam secution agreement with Jeffr ey Epstein that barred his Office formally signed a non-pro by the ly filing a motion to have their facts accepted The victims are contemporaneous Court. EFTA01072127 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 2 of 42 Case: 13-12923 Date r218atifff8)12/2013 Page: 2 of 42 committed against the victims (as well as prosecution for numerous federal sex offenses he the victims about this non-prosecution against many other minor girls). Rather than confer with y Epstein agreed to a "confidentiality" agreement, however, the U.S. Attorney's Office and Jeffre to anyone — including the victims. For the next provision in the agreement barring its disclosure Attorney's Offic