EFTA00726503.pdf

1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA 2 WEST PALM BEACH DIVISION 3 CASE NO. 08-80119-CIV-MARRA 4 WEST PALM BEACH, FLORIDA JANE DOE, et al., 5 Plaintiffs, JUNE 12, 2009 6 vs. 7 JEFFREY EPSTEIN, 8 Defendant. 9A x 10 TRANSCRIPT OF MOTION HEARING 11 BEFORE THE HONORABLE KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE 12 APPEARANCES: 13 FOR THE PLAINTIFFS: ADAM D. HOROWITZ, ESQ. 14 Mermelstein & Horowitz . 15 Miami, FL 33160 For Jane Doe 16 BRADLEY J. EDWARDS, ESQ. 17 Rothstein Rosenfeldt Adler 1811 Fort Lauderdale, FL 33301 II Jane Doe 3, 4, 5, 6, 7 19 20 ISIDRO M. GARCIA, ESQ. Garcia Elkins Boehringer 21- West Palm Beach, FL 33401 22 Jane DOE II 23 RICHARD H. WILLITS, ESQ. 24 Lake Worth, FL 33461 II For 25 TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00726503  26 THE COURT: That's not my concern. So, again, I just 1 ard and if 2 want to make sure that if the cases go forw ordinarily would defend 3 Mr. Epstein defends the case as someone or her, that that in 4 a case that's being prosecuted against him to be subject to 5 and of itself is not going to cause him 6 criminal prosecution. 7 MR. JOSEFSBERG: I agree, Your Honor. 8 THE COURT: Any other plaintiff's counsel want to 9 chime in? I 10 MR. WILLITS: Richard Willits on behalf of Josefsberg said. 11 would join, to weigh in on what Mr. 12 MR. JOSEFSBERG: Your Honor, I could not hear. 13 THE COURT: We'll get him to a microphone. 14 Mr. Willits is speaking. On behalf of my client, ., we join 15 MR. WILLITS: also want to point out 16 in what Mr. Josefsberg said, and we 17 something to the Court. on to the Court, 18 First, we want to make a representati to the U.S. Attorney's 19 we have no intention of complaining don't have that intention in 20 Office, never had that intention, what occurs in the 21 the future, but, of course, subject to 22 future. Mr. Epstein went 23 I want to point out to the Court that , represented by 24 into this situation with his eyes wide open to be coming. If he 25 counsel, knowing that civil suits had ION TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPT EFTA00726504  27 s knew it. 1 didn't know it, his lawyer ond thoughts now about he 2 He appears to be having sec d that s way or he could have negotiate 3 could have negotiated thi s Office. And they want to impose 4 way with the U.S. Attorney' We don't the innocent plaintiffs. 5 their second thoughts on of invited 6 think that's fair. We think it's in the nature error whatsoever. 7 error, if there was any 8 Thank you. able to tak e the THE COURT: You agree he should be 9 can take and endant in a civil action 10 ordinary steps that a def having to be prosecute d? 11 not be concerned about ng Of course. And we say the same thi 12 MR. WILLITS: r rulings and the Mr. Josefsberg said. It's all subject to you 13 as to what is proper and what is not 14 direction of this Court s de by the rulings of thi 15 proper. And we're prepared to abi ention of running to the State's 16 Court, and we have no int 17 Attorney. THE COURT: The U.S. Attorney? 18 I'm sorry. The U.S. Attorney. 19 MR. WILLITS: THE COURT: Mr. Garcia. 20 MR. GARCIA: Thank you, Your Honor. 21 l nk perhaps defense counse 22 If I may briefly, I thi orandum of pages 17 and 19 of my mem 23 forgot about this, but on make motion to dismiss, I did 24 law in opposition to the osecution agreement, and I did say that 25 reference to the non-pr K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00726505  28 isd iction of this Court was a 1 the contesting of the jur -prosecution agreement. 2 potential breach of the non with have, and they have filed 3 So my client happens to the fact state court complaint, given 4 the Court a copy of her ntesting of eement limits the non-co 5 that the non-prosecution agr eral lusively brought under the fed 6 jurisdiction to claims exc 7 statute. withdraw tho se contentions 8 I'm going to go ahead and apply o of law because it doesn't 9 on pages 17 and 19 of my mem sed this issue with 10 to my case. So to the extent that I rai rt, I'm going to withdr aw that 11 defense counsel and the Cou 12 aspect of it. wri ting on that THE COURT: Can you file something in 13 14 point with the Court? 15 MR. GARCIA: Yes. issue that 16 THE COURT: What do you say about this 17 we're here on today? t I have with MR. GARCIA: I think that the problem tha 18 d by ion agreement is being use 19 it is that this non-prosecut was ct opposite purpose that it 20 defense counsel for the exa and I wasn't around, is 21 intended. My perception of this thing, criminal ly bought his way out of a 22 that Mr. Epstein essential way, and ful for the victims in a 23 prosecution, which is wonder 24 wonderful for him, too. non-prosecution agreement 25 Now he's trying to use the K REALTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWOR EFTA00726506  29 ed to make intiffs that he was suppos 1 as a shield against the pla 2 restitution for. e my client's depo. He's 3 And, certainly, he can tak the state court case -- very 4 done extensive discovery in we can win intrusive, I might add. And we don't care, because 5 on agreement or without the 6 this case with the prosecuti prosecution agreement. We are ready to go forward. 7 to the United 8 THE COURT: You're not going to assert the case is t he's doing in defending 9 States Government that wha uld be further prosecuted? 10 a violation for which he sho MR. GARCIA: Absolutely not. 11 iffs? THE COURT: Anyone else for the plaint 12 l for MR. HOROWITZ: Judge, Adam Horowitz, counse 13 ough 7. 14 plaintiffs Jane Doe 2 thr a point that I think you've 15 I just wanted to address s crystal clear, 16 articulated it. I just want to make sure it' the nt a broad brush for all of 17 which is that we can't pai 18 cases. Mr. Epstein bei ng unable to 19 The provision relating to have only to those plaintiffs who 20 contest liability pertains the fed eral statute. My clients, 21 chosen as their sole remedy l causes elected to bring additiona 22 Jane Doe 2 through 7, have when you t reason we were silent 23 of action, and it's for tha the Epstein to be in breach of 24 said does anyone here find Mr. tand . That provision, as we unders 25 non-prosecution agreement LTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REA EFTA00726507  30 clients. 1 it, it doesn't relate to our ent THE COURT: Okay. But, again, you're in agreem 2 a that's spoken on behalf of 3 with everyone else so far case in the normal course of 4 plaintiff that defending the ach? ing motions would not be a bre 5 conducting discovery and fil course, 6 MR. HOROWITZ: Subject to your rulings, of 7 yes. THE COURT: Thank you. 8 to say from the plaintiffs? 9 Anyone else have anything be so kind as to maybe 10 Ms. Villafana, if you would you're here, and I. 11 help us out. I appreciate the fact that n these cases and under no obligatio 12 know you're not a party to ld be . But as I indicated, it wou 13 to respond to my inquiries d the Government's position. 14 helpful for me to understan And we, of MS. VILLAFANA: Thank you, Your Honor. 15 h as try to help the Court as muc 16 course, are always happy to any of these lawsuits, and 17 possible. But . we are not a party to e advantage because we don't hav 18 in some ways we are at a dis what's on Pacer. So I don't 19 access. My access is limited to Mr. Epstein may have taken either in 20 really know what positions filed in ery responses that aren't 21 correspondence or in discov 22 the case file. nk lly just what do you thi 23 But your first order was rea s hearing second order related to thi 24 about a stay, and then the ther we ic question, which is whe 25 and asked a much more specif ilME7RMISCRIPTION WIXAOMSSIONAIRO0MNETWORKREM EFTA00726508  31 ense was a breach of the 1 believe that Mr. Epstein's def 2 agreement. many of the pleadi ngs as 3 And I've tried to review as ely voluminous. And I 4 possible. As you know, they're extrem them. But we do believe that there 5 haven't been through all of ed ing that Mr. Josefsberg referr 6 has been a breach in the fil have n, we do understand that we 7 to, and contrary to Mr. Critto ice to ice, and we are providing not 8 an obligation to provide not 9 Mr. Epstein today. nd to be in breach -- the 10 The pleading that we fou to sou ght to do one thing, which was 11 non-prosecution agreement, been if e position they would have 12 place the victims in the sam for ted of the federal offenses 13 Mr. Epstein had been convic 14 which he was investigated. erally prosecuted and 15 And that if he had been fed ld have been entitl ed to restitution, 16 convicted, the victims wou the crimes were committed, 17 regardless of how long ago old they were at the time, and how 18 regardless of how old they of the conviction. 19 are today, or at the time e them eligible for damages 20 And it also would have mad 21 under 2255. e was that we could set up 22 And so our idea was, our hop restitution these victims to get that 23 a system that would allow l expose ough what civil litigation wil 24 without having to go thr 25 them to. LTIME TRANSCRIPTION TOTAL ACCESS COURTROOM NETWORK REA EFTA00726509  32 tant 1 You have a number of girls who were very hesi this because of the 2 about even speaking to authorities about embarrassment that 3 trauma that they have suffered and about the selves and upon 4 they were afraid would be brought upon them 5 their families. ement tried 6 So we did through the non-prosecution agre ecting their privacy. 7 to protect their rights while also prot ement -- on the other 8 So, pursuant to the non-prosecution agre jackpot or a key to a 9 hand, we weren't trying to hand them a same position. 10 bank. It was solely to sort of put them in that if -- that 11 So we developed this language that said t them. Most of the 12 provided for an attorney to represen s, come from not wealthy 13 victims, as you know from the pleading attorneys who would be in 14 circumstances, may not have known any 15 a position to help them. procedure that 16 So we went through the Special Master fsberg, and the goal was 17 resulted in the appointment of Mr. Jose tiate with Mr. Epstein 18 that they would be able to try to nego ges. And if Mr. Epstein 19 for a fair amount of restitution/dama ly he has, which is that the 20 took the position, which apparent also would be a cap. That 21 $50,000 or $150,000 floor under 2255 in Federal Court to get 22 if they were to proceed to file suit d admit liability, but 23 fair damages under 2255, Mr. Epstein woul portion, which means 24 he, of course, could fight the damages depositions; of 25 that, of course, he would be entitled to N TOTALACCESSCOUR1ROOMNETWORKREAMMETRANSCRIPTIO EFTA00726510  33 1 course, he would be entitled to take discovery, and we don't 2 believe that any of that violates the non-prosecution 3 agreement. 4 The issue with the pleading that he filed, the motion 5 to dismiss the case, I believe it's Jane Doe 101, represented 6 by Mr. Josefsberg, is that that is a case that was filed 7 exclusively under 18 U.S.C., Section 2255. She met that 8 requirement. Mr. Epstein is moving to dismiss it, not on the 9 basis of damages, he is saying that he cannot be held liable 10 under 2255 because he was not convicted of an offense. 11 The reason why he was not convicted of an offense is 12 because he entered into the non-prosecution agreement. So that 13 we do believe is a breach. 14 The issue really that was raised in the motion to stay 15 and that I addressed in our response to the motion to stay is 16 that Mr. Epstein's -- Mr. Epstein wants to stay the litigation 17 in order to leave, in order to sort of attack the cases of the 18 victims whether they are fully within the non-prosecution or 19 not, non-prosecution agreement or not, and leave the Government 20 without a remedy if he does, in fact, breach those terms. And 21 that is why we opposed the stay. 22 THE COURT: I'm not sure what you mean by that last 23 statement. 24 MS. VILLAFANA: Well, because this issue related to 25 the motion to dismiss on Mr. Josefsberg's client came up after TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00726511  1 we had filed that response. And what we said in the response 2 to the motion to stay is that the reason why he wants to stay 3 the litigation is so that the non-prosecution agreement 4 terminates based on a period of time, as he puts it. And then 5 afterwards he would be able to come in here and make all of 6 these arguments that clearly violate the non-prosecution 7 agreement but we would be without remedy. 8 THE COURT: But you're not taking the position that 9 other than possibly doing something in litigation which is a 10 violation of an express provision of the non-prosecution 11 agreement, any other discovery, motion practice, investigations 12 that someone would ordinarily do in the course of defending a 13 civil case would constitute a violation of the agreement? 14 MS. VILLAFANA: No, Your Honor. I mean, civil 15 litigation is civil litigation, and being able to take 16 discovery is part of what civil litigation is about. And while 17 there may be, for example, if someone were to try to subpoena 18 the Government, we would obviously resist under statutory 19 reasons, all that sort of stuff. But, no, Mr. Epstein is 20 entitled to take the deposition of a plaintiff and to subpoena 21 records, etc. 22 THE COURT: And even if he seeks discovery from a 23 Government agency, you have the right to resist it under the 24 rules of procedure but that would not constitute a violation, 25 again unless there's a provision in the prosecution agreement TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00726512