EFTA00021442.pdf

Case 9:08-cv-80736-KAM Document 466 Entered on FLSD Docket 07/23/2019 Page 1 of 70 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 JANE DOE 1 AND JANE DOE 2'S REPLY TO INTERVENOR EPSTEIN'S BRIEF IN OPPOSITION TO PROPOSED REMEDIES Bradley J. Edwards Edwards Pottinger LP 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 Telephone : (800) 400-1098 E-Mail: brad@epllc.com Paul G. Cassell Pro Hac Vice S.J. Quinney College of Law at the University of Utah* 383 S. University St. Salt Lake City, UT 84112 Telephone: (801) 585-5202 E-Mail: cassellpfalaw.utah.edu This daytime business address is provided for identification and correspondence purposes only and is not intended to imply institutional endorsement by the University of Utah. EFTA00021442 Case 9:08-cv-80736-KAM Document 466 Entered on FLSD Docket 07/23/2019 Page 2 of 70 TABLE OF CONTENTS INTRODUCTION 1 THIS CASE MUST BE DECIDED ON THE AGREED PREMISE THAT THE NPA ONLY COVERS THE U.S. ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF FLORIDA. 3 DISCUSSION 6 I. INTERVENOR EPSTEIN HAS RECEIVED PROCEDURAL DUE PROCESS THROUGH AN OPPORTUNITY TO BE HEARD AND SUBMIT EVIDENCE ON ISSUES PERTAINING TO REMEDIES. 6 A. As an Intervenor, Epstein Has Received Procedural Due Process 6 B. The Court's Findings About Epstein Counsel's Awareness of Concealment of the Non- Prosecution Agreement are Well-Supported and Unchallenged 10 I. Through Counsel, Epstein Was a Party to the Illegal Concealment of the Non- Prosecution Agreement 10 2. Evidence Exists that the Epstein Defense Team Acted in Bad Faith. 18 3. The USAO-SDFL Was Not Authorized to Extend Epstein Immunity Without First Conferring with his Victims. 23 II. THE CVRA AUTHORIZES RESCISSION AS A REMEDY. 26 A. The CVRA Authorizes Rescission as a Remedy. 26 B. The Victims Are Not Time-Barred Under the CVRA. 28 III. PRINCIPLES OF CONTRACT LAW SUPPORT A RESCISSION REMEDY. 34 A. Under the CVRA, Contract Law Principles Require Rescission. 34 B. The Civil Releases Signed by Jane Doe I and 2 Did Not — and Could Not — Waive their CVRA Claims Against the Government 40 IV. THE DOCTRINES OF EQUITABLE AND JUDICIAL ESTOPPEL ARE INAPPLICABLE. 45 A. Jane Doe 1 and 2 Have Not Violated Any CVRA Requirement in Handling Their Petition. 45 B. Congress Has Not Added Doctrines of Estoppel to the CVRA. 46 C. Epstein Has Failed to Satisfy the Elements of the Equitable Estoppel Doctrine. 48 D. Epstein Has Failed to Satisfy the Elements of the Judicial Estoppel Doctrine. 50 EFTA00021443 Case 9:08-cv-80736-KAM Document 466 Entered on FLSD Docket 07/23/2019 Page 3 of 70 V. ALLEGED PRINCIPLES OF "SUBSTANTIVE DUE PROCESS" DO NOT PRECLUDE RESCISSION REMEDIES 53 VI. SEPARATION OF POWERS DOES NOT PREVENT THE COURT FROM EXERCISING ITS STATUTORY POWER TO ENFORCE THE CVRA. 59 VII. THE VICTIMS' REQUEST FOR DECLARATORY RELIEF (REMEDY #2) IMMEDIATELY BECOMES RIPE UPON THE GRANTING OF A RESCISSION (REMEDY #1). 61 VIII. THE COURT IS AUTHORIZED TO HOLD A PUBLIC HEARING WITH THE VICTIMS IN THIS CASE. 62 IX. ADOPTION OF EARLIER PLEADINGS BY REFERENCE 63 X. THE COURT SHOULD EXPEDITE ITS RULING ON REMEDIES AND ON THE VICTIMS' RIGHTS TO BE TREATED WITH FAIRNESS AND TO NOTICE 63 XI. REQUEST FOR A HEARING (IF NECESSARY) 65 CONCLUSION 65 EFTA00021444 Case 9:08-cv-80736-KAM Document 466 Entered on FLSD Docket 07/23/2019 Page 4 of 70 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 JANE DOE 1 AND JANE DOE 2'S REPLY TO INTERVENOR EPSTEIN'S BRIEF IN OPPOSITION TO PROPOSED REMEDIES COME NOW Jane Doe 1 and Jane Doe 2 (also referred to as "the victims"), by and through undersigned counsel, having previously provided a submission on proposed remedies (DE 458) and in light of Intervenor Epstein's' Brief in Opposition (DE 463) (hereinafter cited as "Epstein Remedies Br."), to now reply to Epstein in support of their submission on proposed remedies. For the reasons explained in their earlier submissions (see, e.g., DE 458 and 464) and below, the Court should reject the Intervenor Epstein's arguments and grant Jane Doe 1 and Jane Doe 2 the various remedies their seek to enforce and protect their rights under the Crime Victims' Rights Act (CVRA) — including rescission of the non-prosecution agreement. INTRODUCTION As Jane Doe 1 and 2 explained in their earlier submissions, this case involves deception of dozens of Florida victims of an international sex trafficking organization — the organization led by As discussed below, Epstein was granted "limited" intervention in this case to address remedies. Since remedies are now at issue, Epstein has full intervention rights and will be referenced throughout this reply as "Intervenor Epstein." 1 EFTA00021445 Case 9:08-cv-80736-KAM Document 466 Entered on FLSD Docket 07/23/2019 Page 5 of 70 Intervenor Epstein. The Government2 and Epstein reached a secret non -prosecution agreement (NPA) and then concealed that agreement until it was firmly in place — and the victims lost any opportunity to object. This secret justice for Epstein and his co-conspirators has led to a national outcry about unfairness and unequal treatment of the wealthy and powerful in the criminal justice system. This Court has previously determined that Jane Doe 1 and 2's CVRA rights to confer with prosecutors were violated through the machinations of prosecutors and Epstein. This Court then called for briefing on the appropriate remedy for that violation. DE 454. Jane Doe I and 2 have proposed rescission of the NPA's "immunity" provisions, which have prevented victims from conferring with prosecutors in the USAO-SDFL about prosecuting Epstein for the crimes he committed in Florida against them. Epstein claims that this remedy is not available to this Court. But the Court has previously held that it is a permissible remedy and nothing that Epstein raises should cause the Court to reverse course. The NPA's immunity provisions were founded in illegality — specifically, their concealment from the victims - something that Epstein well knew and, indeed, specifically sought. Accordingly, this Court can and should rescind the immunity provisions as the appropriate remedy for the victims. Rescission will vindicate Jane Doe 1 and 2's CVRA rights, by permitting them to confer with prosecutors in this district about obtaining federal prosecution here — against Epstein and all of his coconspirators. Epstein has little to say about the other remedies that the Jane Does seek, and accordingly the Court should (for reasons articulated earlier) grant those remedies as well. 2 References to the "Government" in this case should be generally understood to refer to the U.S. Attorney's Office for the Southern District of Florida (USAO-SDFL), which is currently being represented by the U.S. Attorney's Office for the Northern District of Georgia. 2 EFTA00021446 Case 9:08-cv-80736-KAM Document 466 Entered on FLSD Docket 07/23/2019 Page 6 of 70 THIS CASE MUST BE DECIDED ON THE AGREED PREMISE THAT THE NPA ONLY COVERS THE U.S. ATTORNEY'S OFFICE FOR THE SOUTHERN DISTRICT OF FLORIDA. For many years, this case has been litigated on the premise that the NPA negotiated by Epstein with prosecutors in the Southern District of Florida only precludes his prosecution in the Southern District of Florida. Indeed, the NPA's plain terms directly limit the agreement to "this District." See NPA at 2 (noting that the agreement was signed "on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida" and requires that "prosecution in this District for [various federal offenses] shall be deferred" and th