EFTA00209657.pdf

Case: 13-12923 Date Filed: 08/05/2013 Page: 1 of 75 No. 13-12923 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT JANE DOE NO. 1 AND JANE DOES NO. 2, Plaintiffs-Appellees v. UNITED STATES OF AMERICA, Defendant-Appellee ROY BLACK ET AL., Intervenors/Appellants ON APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA BRIEF OF INTERVENORS/APPELLANTS ROY BLACK, MARTIN G. WEINBERG, AND JEFFREY EPSTEIN Roy Black Martin G. Weinberg Jackie Perczek 20 Park Plaza, Suite 1000 Black, Srebnick, Kornspan & Boston, Massachusetts 02116 Stumpf Tel: (617) 227-3700 201 South Biscayne Boulevard Fax: (617) 338-9538 Suite 1300 owlmgw@att.net Miami, Florida 33131 Tel: (305) 371-6421 Fax: (305)358-2006 rblack@royblack.com jperczek@royblack.com EFTA00209657  Case: 13-12923 Date Filed: 08/05/2013 Page: 2 of 75 CERTIFICATE OF INTERESTED PERSONS Pursuant to 11th Cir. R. 26.1, Intervenor/Appellants hereby certify that the following persons have an interest in the outcome of this case: 1. Marra, The Honorable Kenneth 2. Acosta, R. Alexander 3. Black, Roy 4. Cassell, Paul G. 5. Edwards, Bradley J. 6. Epstein, Jeffrey 7. Ferrer, Wifredo A. 8. Howell, Jay 9. 11 10 11 12 13 14 15 Page C-1 of 2 EFTA00209658  Case: 13-12923 Date Filed: 08/05/2013 Page: 3 of 75 16. Weinberg, Martin 17. Doe No. 1, Jane 18. Doe No. 2, Jane /s/ Martin G. Weinberg Attorney for Intervenor/Appellants Page C-2 of 2 EFTA00209659  Case: 13-12923 Date Filed: 08/05/2013 Page: 4 of 75 STATEMENT REGARDING ORAL ARGUMENT Intervenor/Appellants request oral argument in this case, as they believe that oral argument will be of material assistance to the Court in considering and deciding the important questions of first impression presented in this appeal, namely, whether communications made by attorneys during the course of settlement/plea negotiations in a criminal case— communications falling within the heartland of Fed. R. Evid. 410 — are privileged and confidential and protected from disclosure to third parties such as civil plaintiffs or, in this case, plaintiffs suing the government under the Crime Victims Rights Act, 18 U.S.C. §3771, who have openly stated that they intend to use those communications to the detriment of the attorneys' client. EFTA00209660  Case: 13-12923 Date Filed: 08/05/2013 Page: 5 of 75 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS C-1 STATEMENT REGARDING ORAL ARGUMENT i STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION I STATEMENT OF THE ISSUES PRESENTED I STATEMENT OF THE CASE AND STATEMENT OF FACTS 2 STATEMENT OF STANDARD OF REVIEW 6 SUMMARY OF ARGUMENT 6 ARGUMENT 10 I. THE CORRESPONDENCE IS PROTECTED FROM DISCLOSURE BY RULE 410 AND THE WORK-PRODUCT PRIVILEGE 12 A. The Constitutional Role of Plea Bargaining in the Criminal Process 12 B. The Protections Afforded By Rule 410 and Its Role in Promoting Effective Plea/Settlement Discussions . . . . 14 C. Rule 410, the Work-Product Privilege, and the Sixth Amendment 17 D. The District Court's Reasons for Finding that The Correspondence at Issue Did Not Fall Within Rule 410 Are Unpersuasive 24 ii EFTA00209661  Case: 13-12923 Date Filed: 08/05/2013 Page: 6 of 75 II. THE COURT SHOULD RECOGNIZE THAT THERE IS A COMMON LAW PRIVILEGE FOR SETTLEMENT/PLEA NEGOTIATION COMMUNICATIONS IN CRIMINAL CASES 28 A. The Public Has a Strong Interest in the Effective Functioning of the Plea/Settlement Negotiation Process. . . 31 B. The Private Interests at Stake Are Profoundly Important . . 35 C. The Evidentiary Costs of the Privilege Are Negligible . . 38 D. The Consensus Among the States 42 E. Recognition of the Common Law Settlement/Plea Negotiation Privilege Is Not Inconsistent With Congress' Intention in Enacting Rules 410 and 11(0 44 III. THIS COURT HAS JURISDICTION OVER THE INTERVENORS' APPEAL UNDER THE PERLMAN DOCTRINE 45 A. Mohawk Does Not Affect the Operation of the Perlman Doctrine in this Case 46 B. Intervenors are "Privilege Holders" for Purposes of Perlman 53 C. Perlman is not Limited to the Grand Jury Context 54 D. The United States is a Disinterested Third Party 55 CONCLUSION 58 CERTIFICATE OF COMPLIANCE 60 CERTIFICATE OF SERVICE 61 iii EFTA00209662  Case: 13-12923 Date Filed: 08/05/2013 Page: 7 of 75 TABLE OF AUTHORITIES Cases Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007), cert. denied, 552 U.S. 1131 (2008) 6, 30, 33, 45 Baker v. Secretary, U.S. Dep't of Transportation, 452 Fed. Appx. 934 (11th Cir. 2012) 33 Blackledge v. Allison, 431 U.S. 63 (1977) 31 Church of Scientology v. United States, 506 U.S. 9 (1992) 46 Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) 47 Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386 (11th Cir. 1994), cert. denied, 513 U.S. 1110 (1995) 21 Folb v. Motion Picture Industry Pension & Health Plans, 16 F.Supp.2d 1164 (C.D.CaI. 1998) 33, 37, 40 Gill v. Gulfstream Park Racing Ass 'Ft, Inc., 399 F.3d 391 (1st Cir. 2005) 54 *Goodyear Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 980 (6th Cir. 2003) 32,33, 38,40 Hickman v. Taylor, 329 U.S. 495 (1947) 14, 20, 21 Holt-Orsted v. City of Dickson, 641 F.3d 230 (6th Cir. 2011) 51, 52, 55 In re Air Crash Near Cali, Colombia, 959 F.Supp. 1529 (S.D.F1a. 1997) 38, 40 In re Grand Jury, 705 F.3d 133 (3d Cir. 2012), petition for cert. filed April 11, 2013 (No. 12-1239) 50 iv EFTA00209663  Case: 13-12923 Date Filed: 08/05/2013 Page: 8 of 75 In re Grand Jury Proceedings, 142 F.3d 1416 (11th Cir. 1998) 46 In re Grand Jury Proceedings, 832 F.2d 554 (11th Cir. 1987) 53 In re MTSG, Inc., 675 F.3d 1337 (Fed. Cir. 2012) 32, 33 In re RDM Sports Group, Inc., 277 B.R. 415 (N.D. Ga. 2002) 34, 40 In re Sealed Case, 716 F.3d 603 (D.C.Cir. 2013) 54 In re Six Grand Jury Witnesses, 979 F.2d 939 (2d Cir. 1992), cert. denied sub nom. XYZ Corp. v. United States, 509 U.S. 905 (1993) 22 Jasper v. State, 871 So.2d 729 (Miss. 2004) 43 *Jaffee v. Redmond, 518 U.S. 1 (1996) passim Keene Corp. v. United States, 508 U.S. 200 (1993) 27 *Lafler v. Cooper, 132 S. Ct. 1376 (2012) 8, 12 Long v. Raymond Corp., 245 Fed. Appx. 912 (11th Cir. 2007) 6 Lake Utopia Paper Ltd. v. Connelly Containers, Inc., 608 F.2d 928 (2d Cir. 1979), cert. denied, 444 U.S. 1076 (1980) 34,37,38 Marino v. Ortiz, 484 U.S. 301 (1988) 52 Mezu v. Morgan State University, 495 Fed. Appx. 286 (4th Cir. 2012), cert. denied, 133 S.Ct. 991 (2013) 55 *Missouri v. Frye, 132 S. Ct. 1399 (2012) 12, 35,36 Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009) 46, 47, 48, 49, 51 EFTA00209664  Case: 13-12923 Date Filed: 08/05/2013 Page: 9 of 75 Moulder v. State, 154 Ind. App. 248, 289 N.E.2d 522 (Ind. App. 1972) 43 Overby v. U.S. Fidelity & Guar. Co., 224 F.2d 158 (11th Cir. 1955) 55 *Perlman v. United States, 247 U.S. 7 (1918) passim Reichenbach v. Smith, 528 F.2d 1072 (11th Cir. 1976) 32 Ross v. City of Memphis, 423 F.3d 596 (6th Cir. 2007) 54 *Santobello v. United States, 404 U.S. 257 (1971) 15, 16,31 S.E.C. v. CMKM Diamonds, Inc., 656 F.3d 829 (9th Cir. 2011) 55 Sheldone v. Pennsylvania Turnpike Comm 'n, 104 F.Supp.2d 511 (W.D.Pa. 2000) 34, 37, 40 Shriver v. State, 632 P.2d 420 (Okla. Crim. App.), cert. denied, 449 U.S. 983 (1980) 43 Software Tree, LLC v. Red Hat, Inc., 2010 WL 2788202 (E.D.Tex. June 24, 2010) 38 State v. Blom, 682 N.W.2d 578 (Minn. 2004) 43 State v. Boggs, 741 N.W.2d 492 (Iowa 2007) 42 State v. Trujillo, 93 N.M. 724, 605 P.2d 232 (N.M.1980) 43 Trammel v. United States, 445 U.S. 40 (1980) 29, 45 United States v. Al-Arian, 514 F.3d 1184 (11th Cir.), cert. denied, 555 U.S. 887(2008) 16 United States v. Castaneda, 162 F.3d 832 (5th Cir.1998) 16 vi EFTA00209665  Case: 13-12923 Date Filed: 08/05/2013 Page: 10 of 75 United States v. Cartwright, 413 F.3d 1295 (11th Cir. 2005), cert. denied, 546 U.S. 1128 (2006) 6 United States v. Contra Costa County Water Dist., 678 F.2d 90 (9th Cir. 1982) 41 United States v. Davis, 617 F.2d 677 (D.C.Cir. 1979), cert denied sub nom. Gelestino v. United States, 445 U.S. 967 (1980) 15 United States v. Deloitte LLP, 610 F.3d 129 (D.C.Cir. 2010) 23 United States v. Edelman, 458 F.3d 791 (8th Cir. 2006) 26 United States v. Gonzalez, 669 F.3d 974 (9th Cir. 2012) 55 United States v. Hare, 49 F.3d 447 (8th Cir.), cert. denied, 516 U.S. 879 (1995) 26 United States v. Herman, 544 F.2d 791 (5th Cir. 1977) 15, 31 United States v. Knight, 867 F.2d 1285 (11th Cir.), cert. denied, 493 U.S. 846 (1989) 24 United States v. Krane, 625 F.3d 568 (9th Cir. 2010) 50 United States v. Merrill, 685 F.3d 1002 (11th Cir. 2012) 24, 25 *United States v. Mezzanatto, 513 U.S. 196 (1995) 6, 14, 28, 53 United States v. Nobles, 422 U.S. 225 (1975) 20 United States v. Paden, 908 F.2d 1229 (5th Cir. 1990), cert. denied, 498 U.S. 1039 (1991) 26 United States v. Robertson, 582 F.2d 1356 (5th Cir. 1978) 24 vii EFTA00209666  Case: 13-12923 Date Filed: 08/05/2013 Page: 11 of 75 United States v. Ross, 493 F.2d 771 (5th Cir. 1974) 15 United States v. Sylvester, 583 F.3d 285 (5th Cir. 2009), cert. denied, 559 U.S. 916 (2010) 14 Williams & Connolly v. S.E.C., 662 F.3d 1240 (D.C.Cir. 2011) 22 Wilson v. O'Brien, 621 F.3d 641 (7th Cir. 2010) 50, 52, 55 Constitutional Provisions Sixth Amendment, United States Constitution passim Statutes and Rules 18 U.S.C. §2255 2 18 U.S.C. §3771 1, 3 Fed. R. Civ. P. 26(b)(3)(B) 20 Fed. R. Crim. P. 11(e)(6) 14, 28, 53 Fed. R. Crim. P. 11(f) 4, 5, 14, 23, 28,44 Fed. R. Crim. P. 16(a)(2) 20 Fed. R. Crim. P. 16(b)(2)(A) 20 *Fed. R. Evid. 410 passim *Fed. R. Evid. 501 passim Alaska Rule Evid. 410 42 Ariz. R. Crim. P. 17.4 42 viii EFTA00209667  Case: 13-12923 Date Filed: 08/05/2013 Page: 12 of 75 Ark. R. Evid. 410 42 Cal. Evid. Code §1153 42 Colo. R. Evid. 410 42 Del. R. Evid. 410 42 Fla. Stat. Ann. §90.410 42 Hawaii R. Evid. 410 42 Idaho: Idaho R. Evid. 410 42 I11. S.Ct. Rule 402(f) 42 Ind. R. Evid. 410 42 Iowa R. Evid. 5.410 42 Ky R. Evid. 410 42 LSA-C.E. Art. 410 42 Maine R. Evid. 410 42 Md. Rules, Rule 5-410 42 Mass. R. Crim. P. I2(f) 42 Mich. R. Evid. 410 42 Minn. R. Evid. 410 42 Miss. R. Evid. 410 42 ix EFTA00209668  Case: 13-12923 Date Filed: 08/05/2013 Page: 13 of 75 Mo. R. Crim. P. 24.02(d)(5) 42 Neb. Rev. Stat. §27-410 42 N.H. R. Evid. 410 42 N.J. R. Evid. 410 42 N.M. R. Evid. 410 42 N.C. R. Evid. 410 42 N.D. R. Evid. 410 42 Ohio R. Evid. 410 42 12 Old. Stat. Ann. §2410 42 Or. Rev. Stat. §135.435 42 Pa. R. Evid. 410 42 R.I. R. Evid. 410 42 S.C. R. Evid. 410 42 S.D.C.L. §19-12-12 42 Tenn. R. Evid. 410 42 Texas R. Evid. 410 42 Utah: Utah R. Evid. 410 42 Vt. R. Evid. 410 42 Va. S.Ct. Rule 3A:8 42 x EFTA00209669  Case: 13-12923 Date Filed: 08/05/2013 Page: 14 of 75 Wa. R. Evid. 410 42 W. Va. R. Evid. 410 42 Wisc. Stat. Ann. §904.10 42 W.R. Crim. P. 11(e)(6) 42 Other Authorities Fed. R. Crim. P. 11 Advisory Committee Notes (1979) 14, 16 xi EFTA00209670  Case: 13-12923 Date Filed: 08/05/2013 Page: 15 of 75 STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION The district court has jurisdiction of this action as an action by the plaintiffs/appellees against the United States as defendant seeking to enforce their rights under the Crime Victims Rights Act, 18 U.S.C. §3771. The orders of the district court from which this appeal is taken was entered on June 18, 2013 (DE188) and June 19, 2013 (DE200), and intervenors/appellants' notices of appeal were filed on June 27, 2013 (DE194-96). This Court has jurisdiction of this appeal under 28 U.S.C. § 1291 and Perlman v. United States, 247 U.S. 7 (1918). See Section III, infra. STATEMENT OF THE ISSUES PRESENTED 1. Whether correspondence authored by defense attorneys and sent to government prosecutors in the process of negotiating a plea to criminal charges or a settlement of an ongoing criminal investigation are privileged and confidential and protected by Fed. R. Evid. 410 from disclosure to third party litigants such as plaintiffs/appellants. 2. Whether a common law privilege under Fed. R. Evid. 501 protects plea/settlement negotiation communications from disclosure to third parties outside the negotiation process. 3. Whether this Court has jurisdiction of this appeal under Perlman v. United States, 247 U.S. 7 (1918). EFTA00209671  Case: 13-12923 Date Filed: 08/05/2013 Page: 16 of 75 STATEMENT OF THE CASE AND STATEMENT OF FACTS In September, 2007, intervenor/appellant Jeffrey Epstein entered into a non- prosecution agreement ("NPA") with the government to resolve a federal criminal investigation in which he was the subject/target of federal grand jury investigations. See DE:48-5.' In the process of reaching this negotiated settlement, Epstein's counsel, including intervenors/appellants Roy Black and Martin Weinberg, authored and co-authored and sent to government prosecutors the correspondence which is the subject of this appeal, fully expecting, based on Fed. R. Evid. 410 and long- established understanding and practice, that their settlement negotiation communications would remain confidential and not subject to disclosure to third parties such as plaintiffs in civil or other litigation. On June 30, 2008, after further negotiation and pursuant to the NPA, Epstein pled guilty in state court to two state offenses and began serving a combined prison and community control sentence. In July, 2008, plaintiffs commenced the underlying action, by filing a Petition ' The agreement, with which Epstein has fully complied, also required that he pay the legal fees of the attorney-representative of identified victims and that he not contest liability in any cases brought against him solely under 18 U.S.C. §2255. Many plaintiffs sued under §2255 and received settlements as the direct result of Epstein's agreement not to contest liability in those cases. Other plaintiffs, including the Jane Does in this case, "relied on the [NPA] when seeking civil relief against Epstein . . . and affirmatively advanced the terms of the [NPA] as a basis for relief from Epstein." DE205-6:12-13. 2 EFTA00209672  Case: 13-12923 Date Filed: 08/05/2013 Page: 17 of 75 for Enforcement of Crime Victims Rights Act, 18 U.S.C. §3771 ("CVRA"). DE1. While the CVRA action was commenced as an emergency petition, plaintiffs shortly thereafter told the district court that they saw no reason to proceed on an emergency basis. DE15:24-25. Then, a month later, plaintiffs withdrew their request that the district court rescind Epstein's NPA as a remedy for the government's alleged violation of the CVRA, telling the court that because of the legal consequences of invalidating the NPA, it was probably not in their interests to ask for rescission. DE27:4. Plaintiffs spent the next eighteen months pursuing civil remedies against Epstein, and ultimately obtaining settlements, while their CVRA action remained dormant. During the course of that civil litigation, Epstein was ordered, over his strenuous objection, to produce documents given to him by the government during the course of his settlement/plea negotiations with it. See Jane Doe #2 v. Epstein, No. 08-80119-MARRA, Doc. 462. In response to that order, settlement negotiation correspondence authored by government prosecutors ( but not by Epstein's counsel) was produced to plaintiffs. Once the CVRA action was re-activated — after plaintiffs had successfully pursued their civil monetary remedies against Mr. Epstein to completion — plaintiffs sought to use that correspondence in their CVRA case in support of their contentions that the government had violated their CVRA rights by not consulting with them 3 EFTA00209673  Case: 13-12923 Date Filed: 08/05/2013 Page: 18 of 75 before entering into the NPA with Epstein and that, as a remedy, the district court should order the rescission of the NPA.2 The government took no position on plaintiffs' proposed use of the correspondence. DE60:1-2. See DE208:65 (plaintiffs' counsel states that government does not oppose plaintiffs' request to use the government's side of the correspondence which had already been disclosed to plaintiffs). Plaintiffs also sought disclosure from the government of correspondence authored and sent to the government by Epstein's attorneys in the course of their efforts on behalf of their client to resolve the ongoing criminal investigation of him. Both Epstein and his criminal defense attorneys — appellants Roy Black and Martin Weinberg — filed motions to intervene for the limited purpose of challenging the use and disclosure of the settlement/plea negotiation correspondence. DE56, 93, followed by supplemental briefing and motions for a protective order, contending that the correspondence was privileged and confidential under Fed. R. Crim. P 11(f) and Fed. R. Evid. 410 and the work-product privilege and that the correspondence fell within the bounds of privilege under Fed. R. Evid. 501. DE:94, 160,161, 162. Following a hearing on the motions to intervene, the government filed a response to 2 Plaintiffs' civil settlements with Epstein required that, if they sought to use the correspondence in the CVRA case, they would provide Epstein with advance notice so that he could submit his objections to the district court to be ruled upon before the correspondence was publicly disclosed. DE51:2. 4 EFTA00209674  Case: 13-12923 Date Filed: 08/05/2013 Page: 19 of 75 the arguments advanced by intervenors, in which it agreed with intervenors that settlement/plea negotiation communications should remain privileged and confidential. DE100.3 The district court granted the motions to intervene, DE158, 159, but ultimately ruled that the correspondence was subject to disclosure. DE188. The district court rejected intervenors' argument based on Rule 410, erroneously concluding that the correspondence fell outside the protections of Rule 410. Id. at 4. The district court also rejected — again erroneously — the application of Rule 410 to Epstein's counsel's communications with the government on the ground that the protections of Rule 410 were negated when Epstein pled guilty, albeit in state court. Id. at 4-5. Finally, the district court rejected intervenors' argument based on Rule 501 on the ground that Congress had already addressed the issue in Fed. R. Crim. P. 11(f) and Fed. R. Evid. 410 and did not see fit to recognize a privilege for plea negotiation communications. Id. at 8-9. That too was error. Intervenors sought a stay of the district court's disclosure order pending appeal to this Court, DE193, which the district court denied. DE206. Thereafter, intervenors renewed their request for a stay pending appeal in this Court, which motion remains 3 The government's response was not among the pleadings which the district court indicated that it considered in ruling on the disclosure issue. See DE188:1. 5 EFTA00209675  Case: 13-12923 Date Filed: 08/05/2013 Page: 20 of 75 pending. During the same time frame, plaintiffs filed a motion to dismiss intervenors' appeal for lack of jurisdiction, which intervenors have opposed. That motion too remains pending. STATEMENT OF STANDARD OF REVIEW The district court's interpretation of federal procedural rules, such as Fed. R. Evid. 410, is subject to de novo review. Long v. Raymond Corp., 245 Fed. Appx. 912, 913 (1 1 th Cir. 2007). The decision to recognize a privilege is a mixed question of law and fact which this Court reviews de novo. Adkins v. Christie, 488 F.3d 1324, 1327 (1 1 th Cir. 2007). Questions of this Court's appellate jurisdiction are also reviewed de novo. UnitedStates v. Cartwright, 413 F.3d 1295, 1299 (11th Cir. 2005). SUMMARY OF ARGUMENT The settlement/plea negotiation process, a critical component of the criminal justice system and one with serious Sixth Amendment implications once formal charges have been brought, cannot function properly unless counsel are assured that their communications with prosecutors will not later be subject to disclosure to third parties seeking to harm their clients. The need for open and frank exchanges of information and opinions during plea/settlement negotiations lies at the heart of Fed. R. Evid. 410, which "creat[es], in effect, a privilege of the defendant," United States v. Mezzanatto, 513 U.S. 196, 205 (1995). The settlement negotiations at issue lie well 6 EFTA00209676  Case: 13-12923 Date Filed: 08/05/2013 Page: 21 of 75 within the heartland of Rule 410's prohibition against the admissibility of plea negotiations "against the defendant who was a participant in the plea discussions" "in any civil or criminal proceeding" and should be protected from disclosure to third parties for that reason. The conjunction of Rule 410, the opinion work product privilege, and the Sixth Amendment right to the effective assistance of counsel during the plea negotiation process require that counsel's plea/settlement negotiation correspondence be protected from disclosure to third parties. Confidentiality of plea negotiation communications is essential to ensure that defense counsel can fulfill their constitutional and professional obligations to provide their clients with effective representation during the plea negotiation process, whether the client is a target of an advanced grand jury investigation, as Epstein clearly was, or has already been charged with criminal offenses. There is also a common law plea/settlement negotiation process which should be formally recognized by this court under Fed. R. Evid. 501 arising from the expectations of privacy and confidentiality on which defense counsel have reasonably relied for many decades in negotiating with government attorneys on behalf of their clients. In Jaffee v. Redmond, 518 U.S. 1 (1996), the Supreme Court focused on four primary considerations governing the recognition of privileges under Rule 501: the needs of the public good, the private interests at stake, the evidentiary benefit of the 7 EFTA00209677  Case: 13-12923 Date Filed: 08/05/2013 Page: 22 of 75 privilege, and the consensus among the states. All of these factors militate in favor of recognition of a plea/settlement negotiation privilege. First, the public has a strong interest in the effective functioning of the criminal settlement/plea negotiation process, which is critical to the very ability of the criminal justice system to function at all, as ours is "a system of pleas, not a system of trials." Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012). The effective functioning of that system is dependent on counsel's freedom to engage in the open and candid discussions which lie at the heart of effective plea/settlement negotiation without fear that they will later harm their clients in later litigation. Second, the private interests at stake are profoundly important. In most criminal cases, it is the negotiations with the prosecution, not a judge or jury, which will determine who goes to jail and for how long. A system in which counsel must evaluate every statement they contemplate making to a prosecutor in the course of plea/settlement negotiations in terms of the damage it may later do their clients if subject to discovery in other litigation is one in which counsel cannot provide the effective assistance of counsel required by the Sixth Amendment. In the pre- indictment context where, as here, negotiations are conducted during an ongoing grand jury investigation, counsel's ethical and professional responsibilities to achieve the best result possible for their clients are no less real or important. Counsel cannot 8 EFTA00209678  Case: 13-12923 Date Filed: 08/05/2013 Page: 23 of 75 effectively fulfill those responsibilities unless they are free to communicate with prosecutors openly and frankly, without tempering or censoring their plea/settlement communications to avoid making statements that could later come back to haunt their clients in subsequent litigation. Third, the evidentiary costs of the privilege are negligible because if defense counsel know that their communications with government counsel may later be subject to discovery in other litigation and then to public disclosure, they will necessarily refrain from making admissions and concessions, either of fact or law, which could later harm their clients. Thus, as in Jaffee, the "evidence" which would be available for later discovery would likely never come into being. Fourth, there is a strong consensus in the states that, at least where, as here, no guilty plea was entered to the offenses which were the subject of the negotiations, plea negotiations are protected from public disclosure in the courts. This Court has jurisdiction of this appeal under Perlman v. United States, 247 U.S. 7 (1918), as the district court's order from which this appeal is taken is final as to intervenors/appellants because they are not parties to the underlying action, having intervened only for the limited purpose of challenging the disclosure of the correspondence at issue. In the absence of the ability to take an appeal at this juncture, intervenors/appellants are "powerless to avert the mischief of the order." Id. 9 EFTA00209679  Case: 13-12923 Date Filed: 08/05/2013 Page: 24 of 75 at 13. ARGUMENT The district court's order is the first decision anywhere, insofar as the undersigned counsel are aware, which has ordered disclosure to third party litigants of private and confidential communications from attorneys seeking to resolve a criminal matter favorably to their clients to government prosecutors. The district court's decision drastically reshapes the landscape of criminal settlement negotiations and overturns expectations of privacy, confidentiality, and privilege on which criminal defense attorneys have reasonably relied for many decades in negotiating with government attorneys on behalf of their clients. That decision has potentially far- reaching and, intervenors contend, seriously deleterious consequences for the ability of attorneys nationwide to effectively represent their clients through open and candid communications with government counsel. The decision will have a predictably chilling effect on attorneys around the country, if they can no longer expect privacy and confidentiality in their written communications with prosecutors aimed at reaching a negotiated resolution to a criminal investigation or prosecution. Such communications often necessarily involve explicit or implicit admissions regarding their client's conduct, legal opinions, and opinions regarding acceptable resolutions of the matter, admissions and opinions which attorneys in many cases will be loath 10 EFTA00209680  Case: 13-12923 Date Filed: 08/05/2013 Page: 25 of 75 to commit to written form if they may be subject to later disclosure to litigation adversaries of the attorneys' clients. This case is far from sui generis — the cases are legion in which there is related civil litigation seeking damages or other recovery from individuals who were targets of criminal investigations or prosecutions and in which plaintiffs, after becoming aware of the district court's decision, will begin clamoring for access to communications between defendants' counsel and prosecuting authorities in the belief that they may support their cases against the defendants. The settlement/plea negotiation process, a critical component of the criminal justice system and one with serious Sixth Amendment implications once formal charges have been brought, cannot function properly unless counsel are assured that their communications with prosecutors will not later be subject to disclosure to third parties seeking to harm their clients. The need for open and frank exchanges of information and opinions during plea/settlement negotiations lies at the heart of Rule 410, which itself bars disclosure of the correspondence at issue. The settlement/plea negotiation process is of such profound public and constitutional importance that the Court should recognize the privileged nature of the correspondence under Fed. R. Evid. 501. 11 EFTA00209681  Case: 13-12923 Date Filed: 08/05/2013 Page: 26 of 75 I. THE CORRESPONDENCE IS PROTECTED FROM DISCLOSURE BY RULE 410 AND THE WORK-PRODUCT PRIVILEGE. A. The Constitutional Role of Plea Bargaining in the Criminal Process. Any assessment of the merits of intervenors' contentions must begin with an understanding of the central role ofplea bargaining and settlement negotiations in our criminal justice system and the Sixth Amendment protections which surround them. "Plea bargains are . . . central to the administration of the criminal justice system" because ours is "a system o f pleas, not a system of trials." Lafler v. Cooper, 132 S.Ct. 1376, 1388 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012). In Lafler and Frye, the Supreme Court ruled that the Sixth Amendment right to effective assistance of counsel "extends to the plea bargaining process" and that defendants are entitled to "the effective assistance of competent counsel" during plea negotiations. Lafler, 132 S. Ct. at 1384; Frye, 132 S.Ct. at 1407-09. Under Lafler and Frye, counsel have an ongoing obligation to provide effective representation in plea bargaining and to engage in communications with the client and the prosecutor to discharge that obligation. Even before formal charges are brought, counsel representing a client under federal investigation have an obligation to secure the best possible outcome for their clients, whether it be one which results, as here, in no charges being brought by the prosecuting authority or the bringing of fewer, or less serious, charges against the 12 EFTA00209682  Case: 13-12923 Date Filed: 08/05/2013 Page: 27 of 75 client. By their very nature, effective plea/settlement negotiations necessarily involve counsel's making admissions about the defendant's conduct or concessions as to the applicable law, proposing compromises, and taking positions at odds with those they would advance if the matter were to be litigated. Defense counsel cannot fulfill their professional obligations to their clients if they must temper their communications with the prosecution in the criminal settlement negotiation context for fear that disclosures made now will later enure to the clients' severe detriment in other litigation contexts. The professional, ethical, and constitutional obligations of attorneys representing persons under investigation for, or charged with, crimes are terribly at odds with any ruling which exposes those negotiations to public scrutiny (or to the scrutiny of later litigation adversaries of the client) and makes them admissible in evidence to be used as ammunition to harm the clients, yet that is the very result which the district court's order enshrines. Under the district court's ruling, the attorneys for a person under federal criminal investigation may never enter into negotiations — at least in writing — with the government with the primary aim of avoiding federal indictment entirely, no matter how serious and good faith those negotiations, without risking that anything they say on behalf of their clients in seeking to arrive at a negotiated settlement may in the future be disclosed to adversarial third parties, to the severe detriment of their 13 EFTA00209683  Case: 13-12923 Date Filed: 08/05/2013 Page: 28 of 75 client. This is not and cannot be the law and is certainly unsound policy. Indeed, the district court's opinion creates an incentive for attorneys not to do precisely what Hickman v. Taylor, 329 U.S. 495 (1947), was intended to encourage attorneys to do: reduce facts, ideas, and opinions to writing. A return to the days of settlement/plea negotiations conducted through oral, rather than written, communications, which the district court's decision will encourage whenever the progress of the negotiations or the attainment of the desired objective requires the attorney to communicate information which, if disclosed in another context, would be detrimental to the client's interests would serve no one's interests — not the defendant's, not the government's, not the judicial system's, and not the public's. B. The Protections Afforded By Rule 410 and Its Role in Promoting Effective Plea/Settlement Discussions. Rule 410 "creat[es], in effect, a privilege of the defendant." United States v. Mezzanatto, 513 U.S. 196, 205 (1995), and, along with its cognate, Fed. R. Crim. P. 11(t), "address[es] both individual and systemic concerns in their attempt `to permit the unrestrained candor which produces effective plea discussions.'" United States v. Sylvester, 583 F.3d 285, 288 (5th Cir. 2009), quoting Fed. R. Crim. P. 11 Advisory Committee Notes (1979). See id. at 291 ("Congress accepted Rules 11(e)(6) and 410 with their goal of permitting candid plea discussions, serving personal as well as 14 EFTA00209684  Case: 13-12923 Date Filed: 08/05/2013 Page: 29 of 75 institutional interests"). The "central feature" of Rule 410 "is that the accused is encouraged candidly to discuss his or her situation in order to explore the possibility of disposing of the case through a consensual arrangement." UnitedStates v. Herman, 544 F.2d 791, 797 (5th Cir. 1977). The Rule is derived from "the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him." Id. at 796 (emphasis added). See, e.g., United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974)("If, as the Supreme Court said in Santobello [v. United States, 404 U.S. 257 (1971)], plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks tittered during the course of it are to be admitted in evidence as proof of guilt"); see also United States v. Davis, 617 F.2d 677, 683 (D.C.Cir. 1979)("The most significant factor in [Rule 11(e)(6)'s] adoption was the need for free and open discussion between the prosecution and the defense during attempts to reach a compromise"). The settlement negotiations at issue here lie well within the heartland of Rule 410's prohibition against the admissibility ofplea negotiations "against the defendant who was a participant in the plea discussions" "in any civil or criminal proceeding" and should be protected from disclosure to third parties for that reason. Plaintiffs have 15 EFTA00209685  Case: 13-12923 Date Filed: 08/05/2013 Page: 30 of 75 made it clear that they intend to use the correspondence to prove that the government violated their CVRA rights and that, to remedy that violation, the NPA agreement should be rescinded so that they could seek to have Epstein prosecuted federally. See DE208:32-33, 61, 64-65.4 Thus, although the government is the defendant in the action, it is plain that the plaintiffs intend to use the correspondence "against" Epstein. The words "not admissible against the defendant" in Rule 410 refer to "the purpose for which the evidence is offered" and not "to the kind of proceeding in which the evidence is offered." Fed. R. Crim. P 11, Advisory Committee Notes (1979)(emphasis added). See DE100:1, 3-4 (government agrees that plaintiffs are seeking to use the settlement negotiation correspondence against Epstein within the meaning of Rule 410). The district court's decision to the contrary notwithstanding, DE189, it is Epstein's position that due process and contract principles preclude the rescission of the NPA. Epstein has fully performed his side of the bargain with the government, and when a bargain is based "on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257 (1971). Rescission of the NPA would violate Epstein's constitutional and contractual rights. See, e.g., United States v. Al-Arian, 514 F.3d 1184, 1190 (11th Cir. 2008)("Due process requires the government to adhere to the promises it has made in a plea agreement"); United States v. Castaneda, 162 F.3d 832, 835-36 (5th Cir.1998)("Nonprosecution agreements, like plea bargains, are contractual in nature, and are therefore interpreted in accordance with general principles of contract law. Under these principles, if a defendant lives up to his end of the bargain, the government is bound to perform its promises"). 16 EFTA00209686  Case: 13-12923 Date Filed: 08/05/2013 Page: 31 of 75 C. Rule 410, the Work-Product Privilege, and the Sixth Amendment. Without persuasive precedent, by ordering the disclosure of settlement negotiations to Epstein's adversaries, the district court has drastically reshaped the settlement negotiation landscape to retroactively eliminate the reasonable expectation generated by Rule 410 and the work-product privilege, in reliance on which these communications were authored by competent and responsible attorneys. Those communications were made with complete confidence that their contents would remain confidential, known only to counsel for the government and intervenors, and would not be subject to possible future disclosure to third parties, and certainly not to third parties seeking to use the contents of their attorney communications to harm their client. That belief was eminently reasonable and based on established practice and understandings regarding the confidentiality of such communications. The attorney intervenors' decisions regarding the content of the communications sent to the government in the effort to fulfill their professional and ethical obligations to their client were made in reliance upon those communications not being disclosed outside the attorney-to-attorney settlement negotiation process. If more is needed in addition to the plain language of Rule 410 to preclude disclosure of the correspondence to plaintiffs, it can be found in the conjunction of Rule 410, the work-product privilege, and the Sixth Amendment right to the effective 17 EFTA00209687  Case: 13-12923 Date Filed: 08/05/2013 Page: 32 of 75 assistance of coun