EFTA00179613.pdf

FOR PUBLICATION APPEALS UNITED STATES COURT OF FOR THE NINTH CIRCUIT No. 13-73267 IN RE: STAKE CENTER LOCATING, INC., Crime Victim. D.C. No. 2:13-cr-00089- JCM-GWF-1 STAKE CENTER LOCATING, INC., Petitioner, v. OPINION UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA, LAS VEGAS, Respondent, DEBORAH A. DIFRANCEScO, Defendant-Real Party in Interest, UNITED STATES OF AMERICA, Plaintiff-Real Party in Interest. Petition for Writ of Mandamus to the United States District Court for the District of Nevada ing James C. Mahan, District Judge, Presid EFTA00179613  2 IN RE: STAKE CENTER LOCATING, INC. Submitted September 20, 2013* Filed September 26, 2013 Before: A. Wallace Tashima, Milan D. Sm ith, Jr., and Sandra S. Ikuta, Circuit Judges. Per Curiam Opinion SUMMARY** Criminal Law A motions panel issued a per curiam opinio n denying a crime victim's petition for a writ of ma ndamus seeking reversal of the district court's denial of the victim's motion for forfeiture under the Crime Victims' Rig hts Act. The panel explained that the Crime Victim s' Rights Act and the Mandatory Victim Restitution Ac t give victims a right to restitution, not a right to crimina l forfeiture. The panel also explained that the Crime Vic tims' Rights Act expressly does not impair the government's broad discretion to seek forfeiture of assets implicated in an offender's wire fraud. * The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). This summary constitutes no part of the opin ion of the court. It has been prepared by court staff for the convenienc e of the reader. EFTA00179614  IN RE: STAKE CENTER LOCATING, INC. 3 COUNSEL Kenneth P. Childs, Stake Center Locating, Inc., Salt Lake City, Utah, for Petitioner. Elizabeth Olson White, Appellate Chief and Assistant United States Attorney, District of Nevada, Reno, Nevada, for Plaintiff-Real Party in Interest. Mark B. Bailus, Bailus Cook & Kelesis, Ltd., Las Vegas, Nevada, for Defendant-Real Party in Interest. OPINION PER CURIAM: Petitioner Stake Center Locating, Inc. ("Stake Center") petitions for a writ of mandamus reversing the district court's denial of its motion for forfeiture under 18 U.S.C. § 3771, the Crime Victims' Rights Act ("CVRA").1 In the underlying criminal action, Deborah DiFrancesco, a former employee of Stake Center, was charged with crimes stemming from her embezzlement of funds from Stake Center and other victims, and pleaded guilty to one count of tax evasion and three counts of wire fraud. Pursuant to her plea agreement, DiFrancesco agreed to make restitution to Stake ' Stake Center previously petitioned this court for mandamus, and we denied this petition as premature. See Stake Ctr. Locating, Inc. v. U.S. Dist. Court (lit re Stake Ctr. Locating, Inc.), 717 F.3d 1089, 1090 (9th Cir. 2013) (per curiam). The district court has now completed sentencing DiFrancesco, and Stake Center's renewed petition is properly before us. EFTA00179615 4 IN RE: STAKE CENTER LOCATING, INC. Center in the amount of $763,846. Stake Center moved the district court to compel the government to institute criminal forfeiture proceedings and to obtain property allegedly traceable to DiFrancesco's crimes and thus subject to forfeiture from third parties. The district court denied this motion. We have jurisdiction under 18 U.S.C. § 3771(d)(3). In reviewing a CVRA mandamus petition, we need not balance the usual factors under Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir. 1977), but rather "must issue the writ whenever we find that the district court's order reflects an abuse of discretion or legal error." Kenna v. U.S. Dist. Court, 435 F.3d 1011, 1017 (9th Cir. 2006). Here, the district court did not abuse its discretion or commit a legal error in denying Stake Center's motion for forfeiture. First, the CVRA and Mandatory Victim Restitution Act ("MVRA") give victims a right to restitution, not a right to criminal forfeiture. The CVRA provides that a crime victim has the "right to full and timely restitution as provided in law." 18 U.S.C. § 3771(a)(6). The Mandatory Victim Restitution Act ("MVRA") requires that a "defendant make restitution to the victim" of certain offenses. 18 U.S.C. § 3663A(a)(1). Criminal forfeiture is not, as petitioner contends, a type of restitution; "[c]riminal forfeiture is . . . separate from restitution, which serves an entirely different purpose." United States v. Newman, 659 F.3d 1235, 1241 (9th Cir. 2011). Among other differences between restitution and forfeiture, only the criminal defendant is subject to restitution, not third parties. See 18 U.S.C. § 3663A(a)(1), (b)(1) (requiring that "defendant make restitution" and "defendant" return property). EFTA00179616  IN RE: STAKE CENTER LOCATING, INC. 5 Nor did the district court err in declining to order the U.S. Attorneys' Office to commence criminal forfeiture proceedings against the Internal Revenue Service and other non-parties alleged to possess assets implicated in DiFrancesco's criminal activities. Contrary to Stake Center's argument, forfeiture is mandatory for wire fraud only if the government exercises its discretion to seek such forfeiture. See 28 U.S.C. § 2461(c); Fed. R. Crim. P. 32.2(a); United States v. Liquidators ofEuropean Fed. Credit Bank, 630 F.3d 1139, 1144 (9th Cir. 2011) (describing procedure for forfeiture). "[T]he Government retains broad discretion as to whom to prosecute." Wayte v. United States, 470 U.S. 598, 607 (1985) (quotation omitted). The CVRA expressly does not impair that broad discretion. See 18 U.S.C. § 3771(d)(6) ("Nothing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction.").2 Accordingly, Stake Center's petition for writ of mandamus is denied. DENIED. 2 Because we decide this issue on these grounds, we do not reach the other arguments advanced by the government why forfeiture proceedings cannot be commenced in this case. EFTA00179617 EFTA00179618  FLSD Docket 08/16/2013 Page 1 of 3 Case 9:08-cv-80736-KAM Document 224 Entered on UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOE #1 and JANE DOE #2 v. UNITED STATES G OF OBJECTIONS TO JANE DOE #1 AND JANE DOE #2'S NOTICE OF FILIN PRIVLEGE LOG to as "the victims"), by and COME NOW Jane Doe #1 and Jane Doe #2 (also referred objections to the Government's two through undersigned counsel, to give notice of their filing of ed hereto. The victims are filing privilege logs (DE 212 and DE 216). The objections are attach ction of the materials at issue. these objections concurrently with a motion to compel produ DATED: August 16.2013 Respectfully Submitted, /s/ Bradley J. Edwards 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 and Paul G. Cassell Pro Hac Vice 1 EFTA00179619 Case 9:08-cv-80736-KAM Document 224 Entered on FLSD Docket 08/16/2013 Page 2 of 3 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: eassellp©law.utah.edu Attorneysfor Jane Doe #1 and Jane Doe #2 2 EFTA00179620 Case 9:08-cv-80736-KAM Document 224 Entered on FLSD Docket 08/16/2013 Page 3 of 3 CERTIFICATE OF SERVICE I certify that the foregoing document was served on August 16, 2013, on the following using the Court's CM/ECF system: Dexter Lee A. Marie Villafafia 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®usdoi.gov Attorneysfor the Government Roy Black, Esq. Jackie Perezek, Esq. Black, Srebnick, Komspan & Stumpf, P.A. 201 South Biscayne Boulevard, Suite 1300 Miami, FL 33131 Email: pleading®royblack.com (305) 37106421 Jay P. Leflcowitz Kirkland & Ellis, LLP 601 Lexington Avenue New York, NY 10022 Email: lefkowitz@kirkland.com (212) 446-4970 Martin G. Weinberg, P.C. 20 Park Plaza, Suite 1000 Boston, MA 02116 Email: owlmgw®att.net (617) 338-9538 Criminal Defense Counselfor Jeffrey Epstein /s/ Bradley J. Edwards 3 EFTA00179621 Case 9:08-cv-80736-KAM Document 224-1 Entered on FLSD Docket 08/16/2013 Page 1 of 70 EXHIBIT A PRIVILEGE LOG - WITH VICTIMS' OBJECTIONS EFTA00179622  Docket 08116/2013 Page 2 of 70 Case 9:08-cv-80736-KAM Document 224-1 Entered on FLSD PRIVILEGE LOG - WITH VICTIMS' OBJECTIONS Production of Docments that Are Not Privileged) Key to Objections (linking to Victims' Motion to Compel Abbreviation Objection General Objections — Inadequate Log Inadequate Privilege Log No Factual Underpinnings Failure to Prove Factual Underpinnings of Privilege Claim Waiver Waiver of Confidentiality Fiduciary Duty Government's Fiduciary Duty to Crime Victims Bars Privilege ed Crime-Fraud-Misconduct Communications Facilitating Crime-Fraud-Misconduct Not Cover Factual Materials Factual Materials Not Covered Not in Anticipation of Litigation Documents Not Prepared in Anticipation of CVRA Litigation Attorney Client Objections - Ordinary Government Communication Ordinary Governmental Communications Not Covered No Attorney-Client Relationship Attorney-Client Relationship Not Established Deliberative Process Objections - Improper Invocation Privilege Not Properly Invoked Final Decision Final Decision Exempted from Privilege Overriding Need ments Qualified Privilege Overridden By the Victims' Need for the Docu Investigative Privilege - Improper Invocation Privilege Not Properly Invoked Overriding Need the Documents Qualified Privilege Overridden By the Victims' Need for Work Product Doctrine Claims Against Public Prosecutor Prosecutors No Work Product Doctrine in the Context of a Claim Against Public Overriding Need Docu ments Qualified Privilege Overridden By the Victims' Need for the Attorney Conduct at Issue Conduct is at Issue Work Production Privilege Does No Apply When the Attorney's Rule 6(e) Court Authorized Under 6(eX3)(E) Court-Authorized Disclosure Not Covered Under Rule 6(eX3)(E) Court Inherent Power to Release The Court Has Inherent Power to Release Grand Jury Materials Proper Victim's Petition Victims Have Properly Petitioned for the Release of Grand Jury CVRA-authorized release Materials The CVRA Gives the Court Authority to Release Grand Jury Page 1 of 69 EFTA00179623  ease 9:08-cv-80736-KAM Document 224-1 Entered on FLSD Docket 08/16/2013 Page 3 of 70 Grand Jury Materials Can Be Severed from Other Materials Material Severable The Privacy Rights of Other Victims Government Redaction Can Resolve Privacy Concerns No Assertion of Privacy Rights by Other Victims Redaction No Assertion by Victims Privacy Act The Privacy Act Does Not Apply to Court-Compelled Disclosures for Discovery Court-Compelled Disclosure Bates Range Description Privilege(s) Asserted Box #1 Victims' Objections File folder entitled "CORR RE GJ 6(e) P-000001 Inadequate Log; No Factual Underpinnings; SUBPOENAS" containing correspondence Work Product thru Fiduciary Duty; Not in Anticipation of related to various grand jury subpoenas and P4)00039 Litigation; Claims Against Public Prosecutor; attorney (Villafafia) handwritten notes Overriding Need; Attorney Conduct at Issue; Factual Materials; Court Authorized Under 6(eX3)(E); Court Inherent Power to Release; Proper Victim's Petition; CVRA-authorized release; Material Severable; Overriding Need Box #1 Operation Leap Year Grand Jury Log 6(e) P-000040 Inadequate Log; No Factual Underpinnings; containing subpoenas OLY-01 through Work Product thru Fiduciary Duty; Factual Materials; Not in OLY-81, correspondence and research Contains documents P-000549 Anticipation of Litigation; Improper related to enforcement of same, documents subject to investigative Invocation; Overriding Need; Claims Against produced in response to some subpoenas; privilege Public Prosecutor; Attorney Conduct at Issue; and attorney (Villafafia) handwritten notes Also contains documents Factual Materials; Court Authorized Under subject to privacy rights of 6(eX3)(E); Court Inherent Power to Release; victims who are not Proper Victim's Petition; CVRA-authorized parties to this litigation release; Material Severable; Redaction; No Assertion by Victims; Overriding Need Page 2 of 69 EFTA00179624  on FLSD Docket 08/16/2013 Page 4 of 70 Case 9:08-cv-80736-KAM Document 224-1 Entered Privilege(s) Asserted Victims' Objections Bates Range Description 6(e) Inadequate Log; No Factual Underpinnings; Box #1 File folder entitled "Ritz Compact Flash Contains information Fiduciary Duty; Factual Materials; Not in P-000550 SW" containing copies of a sealed search of Litigation; Improper application, warrant, and subject to investigative Anticipation thru warrant Invocation; Overriding Need ; Factual supporting documents privilege P-000621 r 6(e)(3)(E); Also contains information Materials; Court Authorized Unde Powe r to Relea se; Proper subject to privacy rights of Court Inherent Victim's Petition; CVRA -authorized release; victims who are not parties to this litigation Material Severable; Redaction; No Assertion by Victims 6(e) Inadequate Log; No Factual Underpinnings; Box #1 File folder entitled "PNY Technologies Contains information Fiduciary Duty; Factual Materials; Not in P-000622 Compact Flash SW" containing copies of a Anticipation of Litigation; Improper thru sealed search warrant application, warrant, subject to investigative privilege Invocation; Overriding Need ; Factual P-000693 and supporting documents Under 6(e)(3)(E); Also contains information Materials; Court Authorized se; Proper subject to privacy tights of Court Inherent Power to Relea Victim's Petition; CVRA -autho rized release; victims who are not parties to this litigation Material Severable; Redaction; No Assertion by Victims Work Product Inadequate Log; No Factual Underpinnings; Box #1 File folder entitled "JE Corporations" Fiduciary Duty; Not in Anticipation of containing attorney research on Epstein- Contains information P-000694 Litigation; Improper Invocation; Overriding thru owned corporations and prior litigation subject to investigative privilege Need; Claims Against Public Prosecutor, P-000781 Attorney Conduct at Issue; Overriding Need 6(e) Inadequate Log; No Factual Underpinnings; Box #1 File folder entitled "Capital One" Fiduciary Duty; Factual Materials; Court P-000782 containing subpoena and correspondence Authorized Under 6(e)(3)(E); Court Inherent thru Power to Release; Proper Victim's Petition; P-000803 CVRA-authorized release; Material Severable Page 3 of 69 EFTA00179625  Case 9:08-cv-80736-KAM Document 224-1 Entered on FLSD Docket 08/16/2013 Page 5 of 70 Bates Range Description Privilege(s) Asserted Box #1 Victims' Objections File folder entitled "DTG 6(e) P-000804 Inadequate Log; No Factual Underpinnings; Operations/Dollar Rent-a-Car" containing Contains documents and thru Fiduciary Duty; Factual Materials; Not in subpoena and responsive documents information subject to P-000854 Anticipation of Litigation; Improper investigative privilege Invocation; Overriding Need; Factual Also contains documents Materials; Court Authorized Under 6(e)(3)(E); and information subject to Court Inherent Power to Release; Proper privacy rights of victims Victim's Petition; CVRA-authorized releas who are not parties to this e; Material Severable; Redaction; No Assertion litigation by Victims Box #1 File folder entitled "JP Morgan Chase" 6(e) Inadequate Log; No Factual Underpinnings; P-000855 containing subpoena, correspondence, and Contains documents thru and Fiduciary Duty; Not in Anticipation of responsive documents information subject to P-000937 Litigation; Improper Invocation; Overriding investigative privilege Need; Factual Materials; Court Authorized Under 6(eX3)(E); Court Inherent Power to Release; Proper Victim's Petition; CVRA- Box #1 authorized release; Material Severable File folder entitled "Washington Mutual" 6(e) P-000938 containing subpoena, correspondence, and Contains docum Inadequate Log; No Factual Underpinnings; ents and Fiduciary Duty; Not in Anticipation of thru responsive documents information subject to P-000947 Litigation; Improper Invocation; Overriding investigative privilege Need; Factual Materials; Court Authorized Under 6(e)(3)(E); Court Inherent Power to Release; Proper Victiit's Petition; CVRA- authorized release; Material Severable Box #1 File folder entitled "Computer Search &" Work Product P-000948 Inadequate Log; No Factual Underpinnings; containing legal research on computer Attorney-Client thru Fiduciary Duty; Factual Materials; Not in search and handwritten notes on indictment Contains information P-000982 preparation subject to investigative Anticipation of Litigation; Ordinary Government Communication; No Attorney- privilege. Also contains Client Relationship; Improper Invocation; information subject to Overriding Need; Claims Against Public privacy rights of victims Prosecutor, Attorney Conduct at Issue; who are not parties to this Redaction; No Assertion by Victim s litigation Page 4 of 69 EFTA00179626  ge 6 of 70 FLSD Docket 08/1612013 Pa Document 224-1 Entered on Case 9:08-cv-80736-KAM Privilege(s) Asserted Victims' Objections Underpinnings; Bates Range Description Wo rk pro duc t Inadequate Log; No Factual tes from als; Not in Box #1 File folder entitled "Attorney No 6(e ) Fiduciary Duty; Factual Materi typed and of Litigation ; Improper P-000983 Document Review" containing Co nta ins inf orm atio n Anticipation Against aila) notes, Inv oca tion; Overriding Need; Claims thru handwritten attorney (Villaf subjec t to inv est iga tive ct at Issue; grand jury c Prosecutor, Attorney Condu P-001007 target letters, correspondence re privilege. Also contains Publi tho rize d Under subpoena information subject to Factual Materials; Court Au se; ); Court Inherent Power to Relea privacy rights of victims 6(eX3)(E tim's Petition; CVRA-authorized per Vic who are not parties to this Pro daction; No litigation release; Material Severable; Re Assertion by Victims Underpinnings; Wo rk Pro duc t Inadequate Log; No Factual m Fed Ex terials; Not in Box #1 File folder entitled "Notes fro 6(e ) Fiduciary Duty; Factual Ma and typed ion of Litigation; Improper P-001008 Records" containing handwritten ins inf orm atio n An tici pat screen shots Conta Claims Against thru attorney (Villafaila) notes and sub jec t to inv est iga tive Invocation; Overriding Need; Issue; ctronic file Prosecutor, Attorney Conduct at P-001056 of FedEx subpoena response ele privilege. Also contains Public Materials; Court Authorized Under information subject to Factual se; hts of vic tim s 6(e X3 )(E ); Co urt Inherent Power to Relea privacy rig -authorized per Victim's Petition; CVRA who are not parties to this Pro Redaction; No litigation release; Material Severable; Assertion by Victims Underpinnings; 6(e ) Inadequate Log; No Factual of nial Bank n Fid uci ary Duty; Not in Anticipation Box #1 File folder entitled "Colo Conta ins inf orm atio g 7 Re cor ds" con tain ing records received in iga tive Lit iga tion ; Im proper Invocation; Overridin P401 05 subject to inv est urt Authorized thru response to grand jury subpoena privilege Need; Factual Materials; Co nt Power to P-001959 Under 6(eX3XE); Court Inhere ition; CVRA- Release; Proper Victim's Pet erable authorized release; Material Sev Page 5 of 69 EFTA00179627  L./own-tent a4-1 Entered on FLSD Docket 08/16/2013 Pa ge 7 of 70 Bates Range Description Box #1 File folder entitled "OLY Grand PrivideRe(s) Asserted Victims' Objections P-001960 Jury Log 6(e) Vol 2: OLY-51 THROUGH" Thru con taining Contains information Inadequate Log; No Factual Underpinnings; subpoenas numbered OLY-51 P-002089 thr ough subject to investigative Fiduciary Duty; Factual Materi als; Not in OLY-81 with related correspon dence Anticipation of Lit iga tion privilege. Also contains Inv ; Improper ocation; Overriding Need; information subject to Materials; Court Authorized Un Factual privacy rights of victims Co der 6(e)(3)(E); urt Inherent Power to Relea who are not parties to this Vic se; Proper tim's Petition; CVRA-authorize litigation d release; Material Severable; Redaction Box #1 ; No Assertion File folder entitled "Epstein Co by Victims P402090 rpo rate 6(e) Records: OLY-51, OLY-52, Inadequate Log; No Factual Thru OLY-54" containing subpoenas OLY-53, Contains information and Fiduciary Duty; Not Underpinnings; P-002169 , rec ord s documents subject to in An ticipation of received in response to sub Litigation; Improper Invocation poenas, and investigative privilege ; Overriding related correspondence Need; Factual Materials; Court Authorized Under 6(e)(3)(E); Court Inh erent Power to Release; Proper Victim's Pet Box #1 ition; CVRA- File folder entitled "Colonia l aut horized release; Material Severa P-002170 Ba nk" 6(e) ble containing subpoenas, corres Thru pon den ce Contains information and Inadequate Log; No Factual Un related to subpoenas, records P402246 rec eiv ed in doc um ents subject to Fiduciary Duty; Not in An derpinnings;