EFTA01186070.pdf

Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 1 of 57 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 9:08-cv-80736-ICAM JANE DOE 1 AND JANE DOE 2, Petitioners, v. UNITED STATES, Respondent. JANE DOE 1 AND JANE DOE 2'S CONSOLIDATED STATEMENT OF UNDISPUTED MATERIAL FACTS AND MOTION FOR PARTIAL SUMMARY JUDGMENT WITH INCORPORATED MEMORANDUM OF LAW Jane Doe 1 and Jane Doe 2 (also referred to as "the victims"), by and through undersigned counsel, pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, move for summary judgment on the issue of the United States Government's violation of their rights under the Crime Victims' Rights Act (CVRA), where no genuine issue of material fact exists.' In support, they state: INTRODUCTION In 2004, Congress enacted the CVRA because it found that in case after case "victims, and their families, were ignored, cast aside, and treated as non-participants in a critical event in their lives. They were kept in the dark by prosecutors too busy to care enough . . . and by a court system that simply did not have place for them." 150 CONG. REC. 7296 (2004) (statement of The Court previously granted the victims leave to file a 60•page motion for partial summary judgment. DE 327. EFTA01186070 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 2 of 57 Sen. Feinstein). In passing the CVRA, Congress mandated a series of rights for crime victims. Sadly, several years later, when the Government began handling this case, it did precisely what Congress thought it had forbidden. The Government deliberately kept crime victims "in the dark" so that it could enter into a plea arrangement designed to prevent the victims from raising any objection. In doing so, the Government refused to afford victims the rights they had been promised by Congress—particularly "the right to reasonable, accurate, and timely notice of any public court proceeding," "the reasonable right to confer with the attorney for the Government in the case," and "the right to be treated with fairness and with respect for the victim's dignity and privacy."' The undisputed evidence begins in 2005, when the Palm Beach Police Department ("PBPD") had identified numerous girls as victims of Jeffrey Epstein's sexual crimes. In 2006, the PBPD turned the case over to federal authorities for further investigation. As early as March 15, 2007 and throughout the rest of the investigation, the United States Attorney's Office for the Southern District of Florida ("the Office") specifically identified several dozen girls whom it classified as "victims" under the CVRA. Once that identification was made, the Government was obligated to afford these victims certain rights under the CVRA—a fact of which the Government itself was well aware.' Indeed, the Government provided notification to the girls that they were classified as "victims" under the CVRA. But what the Government did not tell the victims lies at the heart of the case. It is undisputed that the Government did not tell the victims that. by. May 2007, the Office had 2 18 U.S.C. § 3771(a)(2), (4)-(5), (8); RFP MIA 000001-000006 (Exhibit I). 3 000966-000967 (Exhibit 2); 000589-000591 (Exhibit 3); US_Alty_Cor_00135 (Exhibit 4); RFP MIA 000222 (Exhibit 5). 2 EFTA01186071 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 3 of 57 prepared an 82-page prosecution memorandum and a 53-page indictment against Epstein and his co-conspirators.4 At that time, rather than confer with the victims about how to proceed, the Government began conferring about this issue exclusively with Epstein's counsel. Epstein's counsel contended that, despite abundant connection to interstate commerce, Epstein's sex trafficking was purely of local concern. By August 2007, federal prosecutors had disproven or rejected these defense arguments and notified the defense that all of the identified victims retained federal rights. For example, during August 2007, Jane Doe 1, and other similarly situated victims, provided details to federal agents of the abuse that they endured at the hands of Epstein and his co-conspirators. In September 2007, without conferring with any of the victims, the Government and Epstein shifted gears and began working together to concoct a criminal charge for Epstein to plea to other than his sexual abuse of minors. As alternative charges, they discussed charging Epstein with: (1) various misdemeanors, (2) assaulting his co-conspirators and girlfriend, (3) using private investigators to chase and harass victims' families, (4) obstructions of grand jury subpoenas, or (5) his obstruction of the federal investigation when he instructed another co- conspirator to lie to federal agents.' Ultimately, however, none of those would work. Assistant U.S. Attorney ("AUSA") Marie Villafafia (the "line prosecutor") informed Epstein's counsel that she was getting pushback for creating a charge using one of the main co-conspirators as the 4 RFP WPB 000286 (Exhibit 6). 5 US_Alty_Cor_00030-00032 (Exhibit 7); RFP MIA 000129 (Exhibit 8); RFP MIA 000133 (Exhibit 9): RFP MIA 000095 (Exhibit 10); RFP MIA 000075.000076 (Exhibit 11); RFP WPB 000220 (Exhibit 12); RFP MIA 000077- 000087 (Exhibit 13); RFP MIA 000088 (Exhibit 14); RFP WPB 000235.000244 (Exhibit 15); RFP WPB 000107- 000112 (Exhibit 16); RFP WPB 002188 (Exhibit 17); RFP WPB 000266-000277 (Exhibit 18); RFP MIA 000113 (Exhibit 19); RFP MIA 000151-000160 (Exhibit 20); RFP MIA 000098-000105 (Exhibit 21). 3 EFTA01186072 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 4 of 57 victim.' Consequently, the Government and Epstein searched for another crime for Epstein to plead to, which could accompany a federal non-prosecution agreement (NPA). Incredibly, the offense to which Epstein and the Government ultimately agreed, labeled the minor victims "prostitutes." The undisputed evidence clearly shows that by September 21, 2007, the line prosecutor had informed Palm Beach State Attorney Barry Krischer that a federal resolution had been reached by way of a NPA, yet the victims remained uninformed.? On September 24, 2007, the NPA was signed, preventing prosecution of all federal crimes committed by Epstein and his co- conspirators against the victims. After the signing of the NPA, the Government and Epstein's attorneys worked together to choose a lawyer to be paid by Epstein to represent Epstein's victims for the purpose of settling civil restitution claims. This too was all being done without the victims having any knowledge whatsoever. The correspondence between the Government and a candidate for that representative position as well as between the Government and Epstein's counsel reflects that the Government still had not yet disclosed the NPA to the victims, and was following the guidance of Epstein's counsel in making decisions with respect to the timing and substance of any communication to the victims.' For the next nine months, from the time the NPA was signed through the date of Epstein's state court plea in June of 2008, the Office—doing Epstein's bidding—assiduously concealed the NPA's existence from the victims. While this indulgent deal was incredible in its own right, even more extraordinary was how the victims were treated during the process. Rather 6 Exhibit 15. 7 RFP WPB 002125 (Exhibit 22). 8 See e.g., US_Atty_Cor_00166 (Exhibit 23). 4 EFTA01186073 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 5 of 57 than confer with the victims about the fact that resolution by NPA was ever being considered— or even tell them that it was already a signed deal—the Office and Epstein inserted a "confidentiality" provision into the agreement barring its disclosure to anyone, including the victims. There is no dispute that the Government did not inform the victims of the NPA or of the possibility of any such type of resolution. Consequently, there is no dispute that the Government did not afford the victims any rights before the signing of the NPA. In October 2007, after the NPA was signed, federal agents spoke with three of the more than 30 identified victims, including Jane Doe 1.9 The Government does not dispute that this contact only occurred after the signing of the NPA. Even more important, it is not disputed that this contact was: I) made by the Federal Bureau of Investigation ("FBI") and not a "prosecutor for the Government," 2) that the FBI did not inform the victims of the NPA and certainly did not confer with the victims about the details of the NPA, and 3) that this contact only occurred with three of the more than 30 victims. Lastly, while the content of that conversation is contested, any stretched argument that the conversation satisfied CVRA requirements for Jane Doe 1 are belied by the timing of the conversation as well as the uncontested documentary evidence of the communications with the victims (including with Jane Doe 1) that followed that conversation. Subsequent to the FBI's contact with three of Epstein's victims, the Government informed Epstein's attorneys that victim notification letters needed to be sent to all the victims pursuant to the CVRA. Rather than comply with this acknowledged requirement, Epstein's counsel convinced the Government that (contrary to standard Government practice) Epstein 9 RFP MIA 000464.000468 (Exhibit 24). 5 EFTA01186074 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 6 of 57 should be permitted to provide input into any message being delivered, and ultimately that the victims should not be told anything "until after Epstein pleas."' In January 2008, FBI agents again met with Jane Doe 1 and gathered additional details about Epstein's abuse as well as the direct sexual abuse by one of his co-conspirators, Nadia Marcinkova—who participated in the abuse of other victims as well. The Government then sent a victim notification letter to Jane Doe 1 informing her of her rights under the CVRA, that "this will be a long investigation," and to "be patient."" Jane Doe I was sent a similar letter on June 7, 2008.12 Other victims were also sent these letters communicating that the Epstein case was an on-going active criminal investigation—not that the Government had already immunized Epstein for all federal crimes committed against each of the victims, through a NPA. These misleading letters were sent almost up until the date of Epstein's state court plea in late June 2008.13 On June 30, 2008, Epstein pled guilty to state court charges. It is uncontested that the victims were not reasonably and accurately informed about that hearing—specifically, they were never told the hearing was part of a process that would extinguish any possibility of Epstein being prosecuted for the crimes he had committed against them in Florida. Even after the plea, the Government once again conferred with Epstein's attorneys to decide what to tell the victims. As the Court is aware, this CVRA action was filed in July 2008 at a time when the victims mistakenly believed that the federal case remained open, and wanted to ensure that their rights under the CVRA were afforded before any possible federal disposition. At the emergency I° RFP WPB 001978.001979 (Exhibit 25). II Declaration of Jane Doe 1 (Exhibit 26); Declaration of Jane Doe 2 (Exhibit 27). 12 000978-000989 (Exhibit 28). 13 [DE 481Exhibit I (Exhibit 29). 6 EFTA01186075 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 7 of 57 hearing on the Petition for Enforcement of Crime Victims' Rights Act, Jane Doe 1 and Jane Doe 2 were in the courtroom to learn for the first time that the federal case had been resolved. The undisputed facts show that for nine months, the Government and Epstein conspired to conceal the NPA from the victims to prevent them from voicing any objection, and to avoid the firestorm of controversy that would have arisen if it had become known that the Government was immunizing a politically-connected billionaire and all of his co-conspirators from prosecution of hundreds of federal sex crimes against minor girls. Such facts demonstrate clear violations of the CVRA's requirements that the Government afford victims the reasonable right to confer, the right to be treated with fairness, and the right to reasonable and accurate notice about court hearings. No genuine issue of material fact or law can exist on these points. The Court should accordingly grant summary judgment for the victims on the issue of the CVRA violations and then, in subsequent proceedings, turn to the issue of the proper remedy for those violations. STATEMENT OF UNDISPUTED MATERIAL FACTS Pursuant to Local Rule 56.1, the victims submit this statement of undisputed material facts in support of their motion for partial summary judgment:14 14 In an effort to streamline their case and bring it to a more rapid resolution, in this summary judgment motion the victims present only some of the evidence that they are prepared to produce at any evidentiary hearing in this matter. For instance, the victims have concentrated on the emails and other documents establishing violations of their rights, largely avoiding issues of the Government's "motive" for the violations and other related issues. Because of the possibility that the Court may not grant summary judgment on this narrower approach, the victims are continuing to pursue discovery with regard to motive and several other important issues that would come into play at a broader evidentiary hearing. See, e.g., ME 344] (victims' motion for deposition of government witnesses). The victims reserve the right to supplement this motion if additional discovery is received through these discovery efforts and to present these broader issues at any evidentiary hearing or remedy phase of these proceedings. 7 EFTA01186076 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 8 of 57 EPSTEIN'S CRIMES I. Between about 1999 and 2007, Jeffrey Epstein sexually abused more than 30 minor girls, including Jane Doe I and Jane Doe 2, at his mansion in Palm Beach, Florida, located in the Southern District of Florida, and elsewhere in the United States and overseas." 2. Because Epstein and his co-conspirators knowingly traveled in interstate and international commerce to sexually abuse Jane Doe 1, Jane Doe 2, and other similarly situated victims, they committed violations of not only Florida law (see, e,g., Fla. Stat. §§ 794.05, 796.04, 796.045, 39.201 & 777.04), but also federal law, including repeated violations of 18 U.S.C. §§ 1591, 2421, 2422, 2423, & 371).16 EPSTEIN'S VICTIMS 3. In addition to personally abusing his victims, Epstein also directed other persons to sexually abuse the girls. For example, Nadia Marcinkova sexually abused Jane Doe 1 and other victims at the direction of Epstein." IS See. e.g., Exhibit 26; Exhibit 27; Jane Doe 102 v. Epstein Complaint (Exhibit 30); Response to Request for Admission #1 (Exhibit 31) (admitting federal investigation); FBI 302 of Interview with Jane Doe 1 on August 14, 2007 (Exhibit 32); FBI 302 of Interview with Jane Doe 1 on January 31, 2008 (Exhibit 33); Palm Beach Police Report (Exhibit 34) (discussing investigation of numerous Epstein victims); Exhibit 6 (noting 82-page prosecution memo and 52-page prepared indictment); IDE 304] Declaration of FBI Special Agent Slater (Exhibit 35) (noting that the FBI identified many potential victims of sexual abuse by Epstein); The People of the State of New York v. Jeffrey Epstein (Exhibit 36); RFP WPB 000550-000554 (Exhibit 37) (listing 31 victims the that U.S. Attorney's Office was prepared to name as a victim of an enumerated federal offense); Sora Hearing Transcript (Exhibit 38); RFP MIA 000361.000365 (Exhibit 39) (Chief of Child Exploitation Section of the Justice Department concluding after review of the facts that U.S. Attorney's would not abuse its discretion in prosecuting; noting "multiple mutually-corroborating witnesses;" the Epstein case "consistent in principle with other federal prosecutions nationwide"). IS See note 14, supra. I -I See Exhibit 32; Exhibit 33; Exhibit 34. 8 EFTA01186077 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 9 of 57 THE INVESTIGATION OF EPSTEIN'S CRIMES 4. In 2005, the Town of Palm Beach Police Department received a complaint from the parents of a 14-year-old girl about her sexual abuse by Jeffrey Epstein. The PBPD then capably conducted a thorough investigation and ultimately identified approximately 20 girls between the ages of 14 and 17 who were sexually abused by Epstein." 5. In 2006, at the request of the PBPD, the FBI opened a federal investigation into allegations that Epstein and his personal assistants had used facilities of interstate commerce to induce girls between the ages of 14 and 17 to engage in illegal sexual activities. 6. The FBI ultimately determined that both Jane Doe 1 and Jane Doe 2 were victims of sexual abuse by Epstein while they were minors. Jane Doe 1, for example, provided detailed information about her abuse—and the abuse of Jane Doe 2—to the FBI on August 7, 2007.19 7. On about August II, 2006, Jane Doe 2 received a standard CVRA victim notification letter. The notification promised that the Justice Department would make its "best efforts" to protect Jane Doe 2's rights, including "[t]he reasonable right to confer with the attorney for the Government in the case" and "to be reasonably heard at any public proceeding in the district court involving ... plea." The notification further explained that "[alt this time, your case is under investigation."' That notification meant that Jane Doe 2 had been identified as a victim of a federal offense and as someone protected by the CVRA. IS Exhibit 34; see also RFP WPB 001940.001941 (Exhibit 40) (later description of investigation by the U.S. Attorney's Office). 19 Exhibit 26; Exhibit 27; Exhibit 32. 20 August 11, 2006 Victim Notification Letter to Jane Doe 2 (Exhibit 41). 9 EFTA01186078 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 10 of 57 8. More generally, the FBI established that Epstein used paid employees to repeatedly find and bring minor girls to him. Epstein worked in concert with others to obtain minor girls not only for his own sexual gratification, but also for the sexual gratification of others.' EPSTEIN'S FEDERAL PLEA NEGOTIATIONS 9. From January 5, 2007 through September 2007, plea discussions took place between the U.S. Attorney's Office for the Southern District of Florida and Jeffrey Epstein, who was represented by numerous attomeys.22 10. On February I, 2007, the Epstein defense team sent a 24-page letter to the Office going over what they intended to present during a meeting at the Office the same day. The letter falsely stated: "Epstein did not know or believe any women were under 18 years of age." It also contained other deceptive factual and legal arguments about Epstein's culpability.' II. By March 15, 2007, the Office was sending letters to victims informing them of their rights pursuant to the CVRA.' 12. By May 2007, the Office had drafted an 82-page prosecution memorandum and 53- page indictment outlining numerous federal sexual offenses committed by Epstein.' 13. On about June 7, 2007, FBI agents hand delivered to Jane Doe 1 a standard CVRA victim notification letter. The notification promised that the Justice Department would make its "best efforts" to protect Jane Doe l's rights, including "[t]he reasonable right to confer with the attorney for the United States in the case" and "to be reasonably heard at any public proceeding 21 See note 14, supra. 22 RFP WPB 001744 (Exhibit 42). 23 RFP WPB 000730.000754 (Exhibit 43) (asserting Epstein thought the girls were 18 or older). 24 Exhibit 1. 25 US_Atty_Cor. 00004 (Exhibit 44); Exhibit 6. 10 EFTA01186079 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 11 of 57 in the district court involving [a]...plea." The notification further stated that, "[a]t this time, your case is under investigation."' 14. The notification described in the previous paragraph meant that Jane Doe 1 had been identified as a victim of a federal offense and as someone protected by the CVRA. Jane Doe 1 relied on these representations and believed that the Government would protect these rights and keep her informed about the progress of her case 27 15. On July 6, 2007, Epstein's lawyers sent a 23-page letter lodging numerous, technical legal arguments to persuade the Office that no federal crimes had been committed by Epstein, and that consequently there were no federal crime victims. The letter also falsely claimed that "Mr. Epstein never targeted minors," and urged the Government against a federal prosecution on the basis that Epstein was an upstanding citizen who had made tremendous philanthropic and personal contributions that warranted a declination to prosecute.' 16. On August 2, 2007, another attorney for Epstein sent a similar letter expressing the same sentiments.' 17. However, by August 3, 2007, the Government had disproven or rejected Epstein's various arguments against federal charges, as AUSA Matt Menchel sent a letter to Epstein's counsel stating, "[w]e would reiterate that the agreement to Section 2255 liability applies to all of the minor girls identified during the federal investigation, not just the 12 that form the basis of an 26 June 7, 2007 Victim Notification Letter to Jane Doe 1 (Exhibit 45). " Exhibit 26. 22 MIA_CEOS_00077-00099 (Exhibit 46); RFP MIA 000189 (Exhibit 47). " RFP MIA 000053-000055 (Exhibit 48). II EFTA01186080 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 12 of 57 initial planned charging instrument."30 This was a clear indication from the federal prosecutors that all of the minor girls identified through the investigation were classified as victims with federal rights pursuant to the CVRA. 18. By September 10, 2007, multiple drafts of the NPA had been exchanged between Epstein's counsel and the U.S. Attorney's Office; however, no one from the Office and no Government representative had notified a single victim about the existence of the plea negotiations, much less conferred with them about their views on those negotiations.' 19. On September 12, 2007, while attempting to create alternative charges against Epstein, the U.S. Attorney's Office expressed concern about "the effect of taking the position that Mr. Epstein's house is in the special maritime and territorial jurisdiction of the United States" because the Government had "no evidence of any assaults occurring either on Mr. Epstein's plane or offshore from his residence."' 20. On September 13, 2007, the line prosecutor emailed Epstein's counsel indicating that in an effort to come up with a solution to the September 12 concern, she had been "spending some quality time with Title 18 looking for misdemeanors." The line prosecutor further indicated, "I know that someone mentioned there being activity on an airplane, I just want to make sure that there is factual basis for the plea that the agents can confirm." Epstein's counsel responded, 'Unready thinking about the same statutes."33 3° RFP WPB 001479-001480 (Exhibit 49); Exhibit 48 (earlier correspondence attached for reference). 31 RFP MIA 000058.000063 (Exhibit 50). 32 Exhibit 12; RFP MIA 000072-000073 (Exhibit 51). 33 Exhibit 11 (emphasis added). 12 EFTA01186081 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 13 of 57 21. On September 14, 2007, after having spoken on the telephone about the subject matter of the September 13 emails, Epstein's counsel and the line prosecutor exchanged emails including a proposed plea agreement for Epstein to plea to assaulting one of his co- conspirators.34 22. On September 15, 2007, the line prosecutor sent an email to the Epstein defense team raising concerns about a resolution that would not involve one of Epstein's minor victims and stating: I have gotten some negative reaction to the assault charge with [a co-conspirator] as the victim, since she is considered one of the main perpetrators of the offenses that we planned to charge in the indictment. Can you talk to Mr. Epstein about a young woman named [Jane Doe]? We have hearsay evidence that she traveled on Mr. Epstein's airplane when she was under 18, in around the 2000 or 2001 time frame.35 23. On September 16, 2007, the line prosecutor corresponded with Epstein's counsel about having Epstein plead to obstruction of justice for pressuring one of his co-conspirators to prevent her from turning over evidence or complying with a previously-served grand jury subpoena.36 24. In the same correspondence, the Office discussed with defense counsel how they could contrive to establish jurisdiction away from the location where the crimes actually occurred— and away from where the victims actually lived—so as to avoid the public finding out about anything: "On an `avoid the press' note, I believe that Mr. Epstein's airplane was in Miami on the day of the [co-conspirator] telephone call. If he was in Miami-Dade County at the time, then 3-1Exhibit 13. 35 Exhibit 15; RFP WPB 000066.000074 (Exhibit 52). 36 RFP WPB 000124-000126 (Exhibit 53). 13 EFTA01186082 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 14 of 57 I can file the charge in the District Court in Miami, which will hopefully cut the press coverage significantly." They also discussed having Epstein plea to a second charge of assaulting a different co-conspirator." 25. On September 16, 2007, the line prosecutor wrote to Epstein's counsel indicating that the Office did not like the factual basis for the proposed charges as the Office was "not investigating Mr. Epstein abusing his girlfriend."38 26. The correspondence further discussed a possible plea disposition that would make it hard for a judge to see what was happening: Andy [i.e., AUSA Andrew Laurie] recommended that some of the timing issues be addressed only in the state agreement, so that it isn't obvious to the judge that we are trying to create federal jurisdiction for prison purposes. I will include our standard language regarding resolving all criminal liability and I will mention `co-conspirators,' but I would prefer not to highlight for the judge all of the other crimes and all of the other persons that we could charge. Also, we do not have the power to bind Immigration . . there is no plan to try to proceed on any immigration charges against either Ms. [co-conspirator] or Ms. [co- conspirator].39 27. In the same email, the line prosecutor wrote to defense counsel about a meeting outside the U.S. Attorney's Office: "Maybe we can set a time to meet. If you want to meet `off campus' somewhere, that is fine."40 28. On about September 16, 2007, Epstein's counsel provided a proposed NPA to the Government that extended immunity from federal prosecution not only for Epstein, but also to " US_Atty_Cor. at 29 (Exhibit 54); RFP WPB 000122 (Exhibit 55); RFP WPB 000125-000126 (Exhibit 56); RFP MIA 000281 (Exhibit 57). Is Exhibit 7. 39 Id. 4" Exhibit 7; US_Atty_Cor. 00196 (Exhibit 58) (indicating that at least one additional meeting was held off campus between the Government and counsel for Epstein). 14 EFTA01186083 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 15 of 57 certain co-conspirators: "Epstein's fulfilling the terms and conditions of the Agreement also precludes the initiation of any and all criminal charges which might otherwise in the future be brought against Sarah Kellen, Adriana Ross, Lesley Groff, and Nadia Marcinkova or any employee of N.E.S. for any criminal charge that arises out of the ongoing federal investigation as described above."41 29. On September 17, 2007, the line prosecutor wrote to defense counsel Jay Lefkowitz: "Please send [a document] to my home e-mail address — [redacted] and give me a call on my cell [redacted] so I can be ready for some discussions tomorrow."42 In discovery in this case, the U.S. Attorney's Office has not produced any emails sent to or from any home e-mail addresses of its prosecutors. 30. On September 17, 2007, defense counsel Jay Leflcowitz responded: "[D]o you have another obstruction proffer I can review that you have drafted? Also, if we go that route, would you intend to make the deferred prosecution agreement public?"" 31. On September 18, 2007, the Office responded: "A non-prosecution agreement would not be made public or filed with the Court, but it would remain part of our case file. It probably would be subject to a FOIA request, but it is not something that we would distribute without compulsory process." 32. On September 20, 2007, the U.S. Attorney's Office wrote: "On the issue about 18 USC 2255 [a civil restitution provision], we seem to be miles apart. Your most recent version 4I Exhibit 16. t2 RFP WPB 001709 (Exhibit 59). t3 Exhibit 17. " Exhibit 10. 15 EFTA01186084 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 16 of 57 not only had me binding the girls to a trust fund administered by the state court, but also promising that they will give up their 2255 rights.... In the context of a non-prosecution agreement, the office may be more willing to be specific about not pursuing charges against others."45 33. On September 21, 2007, state prosecutor Barry Krischer wrote the line prosecutor about the proposed deal and added: "Glad we could get this worked out for reasons I won't put in writing. After this is resolved I would love to buy you a cup at Starbucks and have a conversation." Such statement is further evidence of the fact that Epstein's counsel, the U.S. Attorney's Office, and the State of Florida were conferring daily in an effort to resolve the case in a way that would compensate the victims through restitution, yet no one made any effort to notify the victims of the true status of the case. 34. On September 21, 2007, the line prosecutor emailed Epstein's counsel stating, "I think that the attached addresses the concerns about having an unlimited number of claimed victims, without me trying to bind girls whom I do not represent!' Despite knowledge that such agreement would be binding on the victims, the Office never attempted to notify or confer with the victims about the existence of the NPA. 35. On September 23, 2007, the U.S. Attorney's Office sent an email to Lefkowitz stating: "It is factually accurate that the list we are going to give you are persons we have identified as victims. If we did not think they were victims, they would have no right to bring suit." 45 RFP MIA 000173 (Exhibit 60). u Exhibit 21. i 7 US_Atty_Cor 0081.0087 (Exhibit 61) (emphasis added). Exhibit 4. 16 EFTA01186085 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 17 of 57 36. On September 24, 2007, the line prosecutor sent an e-mail to a prospective representative for the Epstein victims named Humberto "Bert" Ocariz, entitled "Conflict Check" confirming the girls' status as victims, stating: "Please keep this confidential because these are minor victims. This is a preliminary list.'W9 Later on September 24, 2007, the line prosecutor sent an email to Leflcowitz stating, "I have compiled a list of 34 confirmed minors."50 37. As correspondence continued on September 24, 2007, and the NPA was being executed, Lefkowitz sent an email to line prosecutor Marie Villafafia stating: "Marie — Please do whatever you can to keep this [i.e., the NPA] from becoming public.."51 SIGNING THE SECRET NON-PROSECUTION AGREEMENT 38. On September 24, 2007, Epstein and the U.S. Attorney's Office formally reached an agreement whereby the United States would defer federal prosecution in favor of prosecution by the State of Florida. Epstein and the Office accordingly entered into a NPA reflecting such agreement. Most significantly, the NPA gave Epstein a promise that he would not be prosecuted in the Southern District of Florida for a series of federal felony offenses involving his sexual abuse of more than 30 known minor girls and countless other unknown minors. The NPA instead allowed Epstein to plead guilty to state felony offenses for solicitation of prostitution and procurement of minors for prostitution.' 39. The NPA also set up a procedure whereby a victim of Epstein's sexual abuse could obtain an attorney to proceed with a civil settlement with Epstein, provided that the victim 49 Exhibit 2. S0 Exhibit 4. 51 Exhibit 57. 92 Executed Non-Prosecution Agreement (Exhibit 62). 17 EFTA01186086 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 18 of 57 agreed to limit damages sought from Epstein." Such provision was devised by Epstein's counsel and the Office without the knowledge or consent of the victims, and without any opportunity for them to reasonably confer on the provision. 40. Among other provisions, the NPA expanded immunity to any "potential co- conspirator" of Epstein's: "In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges against any potential co-conspirators of Epstein, including but not limited to Sarah Kellen, Adrian Ross, Lesley Groff, or Nadia Marcinkova."' 41. The NPA also provided that it was confidential: "The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure!"ss LACK OF VICTIM NOTIFICATION BEFORE THE NPA WAS SIGNED 42. From the time the FBI began investigating Epstein until September 24, 2007—when the NPA was concluded—the U.S. Attorney's Office never conferred with the victims about a NPA.' 43. From the time the FBI began investigating Epstein until September 24, 2007—when the NPA was concluded—the U.S. Attorney's Office never even told the victims that such an 53 Exhibit 62. m Id. at 5. 55 Id. 56 See Tr. of July 11, 2008 Hearing (Exhibit 63) at 9-12; [DE 141 at 4 (Exhibit 64). 18 EFTA01186087 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 19 of 57 agreement was under consideration." FAILURE TO NOTIFY OTHER SIMILARLY-SITUATED VICTIMS ABOUT THE NPA 44. Many, if not all, other similarly-situated victims received standard CVRA victim notification letters substantively identical to those sent to Jane Doe 1 and Jane Doe 2 and the Government reasonably expected them to rely on those representations." 45. The U.S. Attorney's Office did not consult or confer with any of the victims about the NPA before it was signed." 46. The U.S. Attorney's Office did not tell any of the victims about the NPA before it was signed.60 47. Because none of the victims knew about the NPA or any other possible resolution of the case, they could not have conferred with prosecutors about the NPA before it was signed.' 48. Epstein's counsel was aware that the Office was deliberately keeping the NPA secret from the victims and, indeed, had sought assurances to that effect.' NEGOTIATIONS ABOUT CONCEALING THE NPA FROM THE VICTIMS 49. After the NPA was signed, Epstein's counsel and the Office began negotiations about whether the victims would be told about the NPA." 67 See Exhibit 63 at 9-12; Exhibit 64 at 4; [DE 225-1] at 51 (Exhibit 65). 53 Id. 93 Id. 6° Id. 61 Exhibit 26; Exhibit 27. 62 Exhibit 63 at 9; US_ Atty_Cor. 0153 (Exhibit 66) (emphases added); RFP MIA 000489.000491 (Exhibit 67). 63 Exhibit 66 (emphases added). 19 EFTA01186088 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 20 of 57 50. It was a deviation from the Government's standard practice to negotiate with defense counsel about the extent of crime victim notifications' 51. To pressure the Office to agree to positions they wanted, Epstein's counsel began "a year-long assault on the prosecution and the prosecutors." This assault was more aggressive than any U.S. Attorney Alex Acosta, or any of his prosecutors, had ever seen in their extensive experience 6s 52. On about September 24, 2007, the U.S. Attorney's Office sent an e-mail to Lefkowitz, stating that the Government and Epstein's counsel would negotiate privately about what information would be disclosed to the victims about the agreement: Thank you, Jay. I have forwarded your message only to [United States Attorney] Alex [Acosta], Andy, and Roland. I don't anticipate it going any further than that. When I receive the originals, I will sign and return one copy to you. The other will be placed in the case file, which will be kept confidential since it also contains identifying information about the girls. When we reach an agreement about the attorney representative for the girls, we can discuss what I can tell him and the girls about the agreement. I know that Andy promised Chief Reiter an update when a resolution was achieved.... Rolando is calling, but Rolando knows not to tell Chief Reiter about the money issue, just about what crimes Mr. Epstein is pleading guilty to and the amount of time that has been agreed to. Rolando also is telling Chief Reiter not to disclose the outcome to anyone.' 53. On September 25, 2007, the line prosecutor sent an e-mail to Lefkowitz stating: "And can we have a conference call to discuss what I may disclose to . . . the girls regarding the agreement."67 66 Exhibit 65 at 50. 65 001795.001797 (Exhibit 68); see, e.g., Exhibit 24. 66 Exhibit 66 (emphases added). 67 US_Atty_Cor. at 156 (Exhibit 69). 20 EFTA01186089 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 21 of 57 54. On September 25, 2007, the line prosecutor sent an email to Lefkowitz, (1) expressing what she called "bias" against plaintiffs' attorneys, (2) trying to set up an arrangement whereby Epstein's victims would not be represented by various private attorneys, and (3) arguing instead for an attorney in Miami who could help keep things concealed: "They [Ted Babbitt, Stuart Grossman, Chris Searcy, Jake Lytal] are all very good personal injury lawyers, but I have concerns about whether there would be an inherent tension because they may feel that THEY might make more money (and get a lot more press coverage) if they proceed outside the Terms of the plea agreement. (Sorry — I just have a bias against plaintiffs' attorneys.) One nice thing about Bert is that he is in Miami where there has been almost no coverage of this case."" 55. On September 26, 2007, the line prosecutor sent an e-mail to Lefkowitz in which she stated: "Hi Jay — Can you give me a call at 561-[xxx-xxxx] this morning? I am meeting with the agents and want to give them their marching orders regarding what they can tell the girls."' 56. On September 27, 2007, the attorney appointed by the Office to represent the victims—without the knowledge of the victims—emailed the Office asking questions about the assignment, including whether he could see a copy the indictment or plea agreement "so that we understand exactly what Epstein concedes to in the civil case."70 57. On September 27, 2007, upon inquiry from the Office, Lefkowitz responded by stating that the attorney representative "certainly [] should not get a copy of any indictment."71 ' RFP WPB 000384 (Exhibit 70). 69 Exhibit 26; US_Atty_Cor. at 359 (Exhibit 71). 7° 000574-000575 (Exhibit 72). 71 RFP WPB 001687 (Exhibit 73). 21 EFTA01186090 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 22 of 57 58. On September 27, 2007, the line prosecutor informed Epstein's counsel of concerns raised by the attorney representative for the girls selected by the Government and paid for by Epstein. Specifically, "Mlle concern is, if all 40 girls decide they want to sue, they don't want to be in a situation where Mr. Epstein says this is getting too expensive, we won't pay anymore attorneys' fees."' 59. On September 27, 2007, the line prosecutor sent an email to state prosecutors Lanna Belohlavek and Barry Krischer: "Can you let me know when Mr. Epstein is going to enter his guilty plea and what judge that will be in front of? I know the agents and I would really like to be there, `incognito.'" The fact that they intended to be at the plea proceeding "incognito" is evidence that they did not intend to notify the victims of the proceeding.' 60. On October 3, 2007, the U.S. Attorney's Office sent a proposed letter that would have gone to a special master for selecting an attorney representative for the victims under NPA's compensation procedure. The letter described the facts of the Epstein case as follows: "Mr. Epstein, through his assistants, would recruit underage females to travel to his home in Palm Beach to engage in lewd conduct in exchange for money. Based upon the investigation, the United States has identified 40 young women who can be characterized as victims pursuant to 18 U.S.C. § 2255. Some of those women went to Mr. Epstein's home only once, some went there as many as 100 times or more. Some of the women's conduct was limited to performing a 72 Exhibit 23. 73 RFP WPB 002046 (Exhibit 74). 22 EFTA01186091 Case 9:08-cv-80736-KAM Document 361 Entered on FLSD Docket 02/10/2016 Page 23 of 57 topless or nude massage while Mr. Epstein masturbated himself. For other women, the conduct escalated to full sexual intercourse."74 61. On October 10, 2007, Lefkowitz sent a letter to U.S. Attorney Acosta stating, in pertinent part: "Neither federal agents nor anyone from your Office should contact the identified individuals to inform them of the resolution of the case, including appointment of the attorney representative and the settlement process. Not only would that violate the confidentiality of the agreement, but Mr. Epstein also will have no control over what is communicated to the identified individuals at this most critical stage. We believe it is essential that we participate in crafting mutually acceptable communication to the identified individuals." The letter further proposed that the attorney representative for the victims be instructed that "[t]he details regarding the United States's investigation of this matter and its resolution with Mr. Epstein is confidential. You may not make public statements regarding this matter."' 62. On October 18, 2007, the U.S. Attorney met with Lefkowitz in person for breakfast. Meanwhile, the victims had still not been notified of the NPA.76 63. On October 23, 2007, Lefkowitz sent a letter to U.S. Attorney Acosta, which stated: "I also want to thank you for the commitment you made to me during our October 12 meeting in which you . . . assured me that your Office would not . . contact any of the identified individuals, potential witnesses