EFTA00183935.pdf

savE frtofN tiuQSUAL EFTA00183935 THE PALM BEACH POST - MONDAY, NNE IS, 2009 The Palm Beach Post ALEX TAYLOR, Publisher TIM BURKE, Executive Editor RANDY SCHULTZ, Editor of the Editorial Page Unseal the Epstein deal A rich, middle-aged Palm Reacher who preyed on girls almost 40 years younger already has received too many breaks from the system. He doesn't deserve another. In July 2008, at the age of 55 and after paying the equiva- lent of a small countryb gross domestic product in legal fees, Jeffrey Epstein escaped federal charges and pleaded guilty in state court to a pair of charges related to his luring five girls — ages 14 to 17 -- to his house. The girls undressed and massaged him in return for $200 to $300. He's serving only 18 months in the. Palm Beach County Jail, and heb serving only nights. And now he wants just one more favor. When Epstein entered his state plea, the terms of his federal deal were sealed from the public. That violated normal procedures. Attor- neys for some of the victims, who ' have filed civil lawsuits, want that plea deal unsealed, probably because the details would help their cases. But given the nature of this case, thereb also a public interest. One con- dition of the federal plea, for example, was that he take the state deal. Thatb why The Post also is seeking to have the file unsealed. Epsteinb lawyers, Epstein Palm Beach sex offender deserves no more breaks. of course, want it kept secret. Last week, a Palm Beach County judge set a hearing for June 25. Epstein attorney Jack Goldberger claims that the file should stay sealed to protect the "orderly administration of justice" and "protect a compelling government interest." Oh, and third parties might get hurt The compel- ling interest is Epsteinb, and there is no privacy issue since the victims themselves are making the request. Palm. Beach police spent 11 months investigating Epstein, only to see then-State Attorney Barry Krischer kick the case to a grand jury Mr. Krischer backed off when one of Epsteinb gold-plated attor- neys, Alan Dershowitz, announced that some of the victims had posted MySpace comments about their alco- hol and marijuana use. Epsteinb "best" defense has been that he didn't know the girls were underage. "How he verified that," Mr. Goldberger said, "I don't know." Investigators found a high school transcript in Epstein's house. He didn't know? The public should know what Jeffrey Epstein did, and what the system did for him. EFTA00183936 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2008CF009381A DIVISION W STATE OF FLORIDA vs. JEFFREY EPSTEIN, Defendant. MOTION TO MAKE COURT RECORDS CONFIDENTIAL Comes now the Defendant, JEFFREY EPSTEIN, by and through his undersigned attorney's, pursuant to Florida Rule of Judicial Administration 2.420 and the Administrative Orders of this Court , specifically AO 2.303 and moves this Court to treat as confidential the following records. A. A document referred to as "Non-Prosecution Agreement" filed under seal in the court file on July 2, 2008. B. A document referred to as "The Addendum to the Non-Prosecution Agreement" filed under seal in the court file on August 25, 2008. 1. The above referenced documents were Ordered Sealed at a hearing held before the Honorable Judge Deborah Dale Pucillo on June 30, 2008. 2. A Motion to Vacate Order Sealing Records and Unseal Records was filed by Non-Party EW on or about May 15, 2009. 3. A Motion to Intervene and Petition for Access was filed by Non-party Palm Beach Post on June 1, 2009. 4. This Court granted Non-Party. and Palm Beach Post Motion to Intervene on June 10, 2009 but took no immediate action on E. W.'s Motion to Vacate Order Sealing Records and Unsealing Records or on Palm Beach Posts Petition For Access, pending a further hearing. EFTA00183937 5.. The documents should remain confidential for the following reasons: a. To prevent a serious imminent threat to the fair, impartial, and orderly administration of justice. b. To protect a compelling government interest. c. To avoid substantial injury to innocent third parties. d. To avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right, not generally inherent in these specific type of proceedings, sought to be closed. WHEREFORE, Defendant moves this Honorable Court to enter an Order keeping the above referenced records confidential, and maintaining them under seal. I HEREBY CERTIFY that this motion is made in good faith and supported by a sound and factual legal basis. CK A. GOLDBERGER, ESQ. WITNESS my hand and seal in the County and State last aforesaid this 11 day of June, 2009. AI% CHARLENE A. GRIFFITH. N Commission* DO 8130359 1 , Expires may 15, 2013 Aft no, Nor orgrit0 0:40401 Notary Public State of Fl My Commission Expires EFTA00183938 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via Mail; /Facsimile; (3 Overnight Delivery to R. Alexander Acosta, United States Attorney's Office-Southern District, 500 S. Australian Ave., Suite 400, West Palm Beach, FL 33401, Judith Stevenson Areo, Esq., State Attorney's Office- West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401, William J Berger, Esq., ROTHSTEIN ROSENFELDT ADLER, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394; Bradley J. Edwards, Esq., ROTHSTEIN ROSENFELDT ADLER, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394; Deanna K. Shullman, 400 North =Drive, Suite 1100, P.O.Box 2602 (33601) Tampa, FL 33602, Robert D. Critton, BURMAN, CRITTON, LUTTIER, & COLEMAN, 515 N. Flagler Dr. Suite 400, West Palm Beach, Florida 33401. this 11 day of June, 2009. BURMAN CRITTON, LUTTIER & COLEMAN ATTERBURY, GOLDBERGER & WEISS, P.A. OBERT D. CRITTON, ESQ. / CK A. GOLDBERGER, ESQ Florida Bar No lorida Bar No. EFTA00183939 June 11, 2009 Honorable Jeffrey Colbath Palm Beach County Courhouse 205 North Dixie Highway West Palm Beach, Florida 33401 RE: State of Florida 1 Jeffrey Epstein Case No. 2008 CF009381A Dear Judge Colbath, JOSEPH R.ATTERBURY JACK A. GOLDBERGER JASON S.WEISS Board Certified Oiminallrial Attorney Member of New Jersey & Fonda Bars Enclosed please find a courtesy copy of Jeffrey Epstein's Motion to Make Court Records Confidential filed with the Clerk of the Court on June 11, 2009. ; A. uly yours, Ja A. dberger, Esq. JAG/cg Enc. cc: Alexander Acosta U.S. Attorney State Attorney William Berger, Esq. Bradley Edwards, Esq. Deanna Shullman, Esq. Robert Critton, Esq. One Clearlake Centre. Suite 1400 250 Australian Avenue South West Palm Beach, FL 33401 p www.agwpa.com EFTA00183940 AT I ERBURY GOLDBERGER WEISS, One Clearlake Centre, Suite MOO 250 Australian Avenue South West Palm Beach, FL 33401 oytt. .;:ercA; Alexander Acosta United States Attorne ::1::1:::: 04.5.-IBSCfa513&2 $0.442 C 06/11/2009 Filailtd From334( EFTA00183941 NE PALM BEACH POST THURSDAY, JUNE 11.2009 Judge delays ruling on request to unseal plea deal in sex case By SUSAN SPENCER -WENDEL Palm Beach Post Staff Witter WEST PALM BEACH — A circuit judge on Wednes- day did not unseal the deal that money manager Jeffrey Epstein of Palm Beach struck with fed- eral prosecutors to avoid charges, opting instead to give Epstein lawyers a chance to demonstrate why it should remain hid- den from public view Circuit Judge Jeff Epstein Colbath ac- knowledged at a hearing that Epstein's deal was not sealed in state court in ac- cordance with the rules. "1 don't see where any of the procedures were ever followed," he said. Colbath has given Epstein defense attorney, Jack Goldberger, an op- portunity to argue that the document was properly sealed and asked lawyers to submit briefs to him by Friday. Colbath also set a full hearing for June 25. Attorneys for young women now suing Epstein are asking Colbath to un- seal the deal that Epstein brokered with federal prosecutors. A lawyer for The Palm Beach Post also has joined in the request. "Itb a secret agree- ment. A secret, sweetheart agreement," said former Circuit Judge Bill Berger, who now represents some of the women. "Everybody was in on this deal except the victims and the public," Berger said. "The public should be outraged it has gone as far as it has." A second attorney representing the women, Brad Edwards, has seen the sealed document A federal judge allowed him and his clients to view it, but not to discuss its con- tents. Edwards said the women were "outraged" at what had been negotiated without their knowledge. A reporter asked Edwards if he thought Epstein re- ceived special treatment by federal prosecutors. "Are you kidding? Itb transparent. Certainly no one else gets treated like that," Edwards said. Epstein, 56, a reported money manager of billion- aire's, is currently serving an 18-month sentence in the Palm Beach County Stockade after pleading guilty nearly a year ago in state court to felony solicitation of prostitution and procuring teenagers for prostitution. The saga began years ago when the Palm Beach Police Department began investigating whether young wonien were be- ing brought to Epstein mansion on El Brillo Way to massage him and have sex with him in exchange for money. Epstein's attorneys, in federal filings, have referred to sealed docu- ments as a deferred pros- ecution agreement with federal prosecutors and have called it "unprec- edented" and "highly unusual." Goldberger said his cli- ent has not received any special treatment. sm. EFTA00183942 THE PALM BEACH POST • WEDNESDAY, JUNE 10, 2009 Women want sex plea deal unsealed Their attorneys will ask a judge to open Jeffrey Epsteffi's records. By SUSAN SPENCER-WENDEL Palm Beach Post Staff Writer WEST PALM BEACH - When wealthy money manager Jeffrey Epstein of Palm Beach pleaded guilty last year to pro- curing teens for prostitution, his case detoured around local and state rules regarding the sealing of court documents. At a plea conference on the state charges, a judge, a defense lawyer and a pros- ecutor huddled at the bench and decided that a deal 'Epstein Epstein had struck with federal prosecu• tors to avoid charges should be sealed, according to a transcript of the hearing. And so it was. But Florida rules of judicial adnlin- istration, as well as rules of the Palm Beach County court system, require public notification that a court document has been or will be sealed, meaning.kept from public view The rules also require a judge to find a significant reason to seal, See EPSTEIN, 4A ► See past coverage of Jeffrey Epstein's sex scandals. PalmBeachPost.eom/epsteln EFTA00183943 Public has right to know details I of deal; Post attorney will claim Po EPSTEIN from IA such as protecting a trade secret or a compelling gov- ernment interest. Yet no notification or reason occurred in Epstein% case, according to court records. Epstein own attorneys, in federal filings, have referred to his confiden- tial deferred prosecution agreement with the US. attorney% office, struck in September 200Z as "un-. precedented" and "highly unusual." And it was "a significant inducement" for Epstein to-accept the state% deal, observed the state judge who accepted his plea, County Judge Deborah Dale Pucillo. Epstein now faces at least a dozen civil lawsuits in federal and state courts filed by young women who said they had sex with him and now are seeking damages. Attorneys for some of those women want his agreement with federal prosecutors unsealed and will ask Circuit Judge Jef- frey Colbath to do so today. "It is against public policy for these documents to be have been sealed and hidden from public scrutiny. member of the public, has a right to have documents unsealed," wrote former Circuit Judge Bill Berger, now in private practice and representing one of the women. The Palm Beach Post also will ask Colbath to unseal the agreement. Post attor-. ney Deanna Shullman will argue that the public has a right to know the specifics of Epstein% deal. According to various media accounts, Epstein moved in circles that in- cluded President Clinton, Donald Tnunp and Prince Andrew. "International Moneyman of Mystery," de- clared a 2002 Nero York mag- azine profile of Epstein. Epstein, 56, is in the Palm Beach County Stock- ade, serving an 18-month sentence after pleading guilty nearly a year ago to felony solicitation of prostitution and procuring teenagers for prostitution. He is allowed out from 7 am. to 11 p.m., escorted a deputy, said Palm Be County Sheriffs Office spokeswoman 'Teri Barbera. During a Palm Beach Police Department in- vestigation, five victims and 17 witnesses gave statements. They told of young women brought by his assistants to Epstein% mansion on El Brillo Way for massages and sexual activity, and then being paid afterward. At Epstein% plea confer. ence last year, his attorney, Jack Goldberger, and then-Assistant State At Lanna Flipp approached a sidebar conference. Pucillo, who had left the bench nine years earlier, was filling in temporarily as a senior judge. According toatranscript, Goldberger told Pucilb that Epstein had entered a con- fidential agreement with the US. attorneys office in which federal prosecu- tors brokered not pursuing charges against him if he pleaded guilty in state court Pucilb then said she wanted a sealed copy of the agreement filed in his case, and Goldberger concurred nted it sealed. later signed off on The • Florida Supreme Court has expressed "seri- ous concern" and launched an all-out inquiry into seal- ing procedures across the state following media re- ports in 2006 of entire cases being sealed and disappear- ing from court records. 'The public% constitu- tional right of access to court records must remain invio- late, and this court is fully committed to safeguarding this right," justices wrote in their final report Epstein% office on lliesday referred any questions to Goldberger, who declined to comment. Pucillo also has declined to comment • Susan .spencer EFTA00183944 ME PALM BEACH POST • HAMMY JULY 2, 2009 METRO REPORT IN COURT WEST PALM BEACH —An appellate court on Wednesday granted financier Jeffrey Epstein's request to block the unsealing of his non-prosecution agreement with the U.S.Attorney's Office while the court consid- ers his appeal. A circuit judge had ordered the release ot the documents, but Epstein attorney argued that it would cause "ir- reparable harm." Attorneys for women now suing Epstein and for The Palm Beach Post sought the documents' release. The Fourth District Court of Appeal blocked the unsealing while both sides present legal arguments and the court considers them. Epstein pleaded guilty last year to solicita- tion of prostitution and procuring teenagers for prostitution. EFTA00183945 Epstein THE PALM BEACH POST FRIDAY, JULY-10,2009 EPSTEIN SEX PARTNER LOSES LAWSUIT AGAINST NEWSPAPER Pervy Palm Beach moneybags Jeffrey Epstein, who at the tail-end of his 18- month sentence for solicitation of prostitu- tion, is the talk of the legal world again. One of the young girls he invited up for strange sex when she was 16 lost her defamation lawsuit against The New York Post last week. Ava Cordero was asking for Got a news tip? Call Jose at $100 million because, in 200Z the paper outed her as a transgender person (boy to girl) and, she claimed, made her look like "a promiscuous slut." The paper quoted her MySpace page as saying she fantasized about being with multiple partners. A New York appel- late court sided with the tabloid, saying that Cordero herself gave the public the reasonable impression of promiscuity. Ya think? or e-mall EFTA00183946 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT DOCKETING STATEMENT AND NOTICE OF APPEARANCE OF COUNSEL (Revised as of May 1, 2001) The Court requires the following information in order to facilitate disposition of the case. APPELLANT/PETITIONER: If this case Involves an original writ, is an appeal of a non-final order or is a case involving child custody, this docketing statement must be completed and returned within five days. In all other cases, the appellant must file the docketing statement within 20 days from the date of the acknowledgment of the notice of appeal. APPELLEE/RESPONDENT: Is apj required to file a docketing statement unless there are amendments, corrections or additions to the docketing statement filed by the appellant/petitioner. Appellee/respondent is only required to file a notice of appearance if counsel's name does not already appear on the certificate of service. Appellee's/respondent's docketing statement, if necessary, is due within 5 days from service of the appellant's/petitioner's docketing statement. PLEASE PROVIDE THE FOLLOWING INFORMATION: DOCKETING STATEMENT OF: (CHECK ONE) 1. STYLE OF CASE Jeffrey Epstein'. State of Florida APPELLANT/PETITIONER  APPELLEE/RESPONDENT DCA CASE NUMBER 4D09-2554 LOWER COURT CASE NUMBER 2008 CF 009381A 2a. NOTICE OF APPEARANCE OF COUNSEL FOR APPELLANT (If party is not represented by counsel, party should so indicate and provide accurate mailing address and phone number). Name See attached. Bar Number Address Attorney For Phone Number Fax Number 2b. APPELLEE'S TRIAL COUNSEL AND/OR APPELLATE COUNSEL (IF KNOWN) Name See attached. Bar Number Address Attorney For Phone Number Fax Number 3. INTERESTED PERSONS: List names of all persons or entities having an interest in this matter. Please clarify whether these persons or entities are parties, lawyers or otherwise, and as to parties, designate whether appellant or appellee. See attached. EFTA00183947 4. JUDGES BELOW: List the name of all judges, deputy commissioners and hearing officers/examiners who were involved in this action below. Specify the judge who entered the order appealed. Honorable Jeffrey J. Colbath (entered order appealed) 5. JURISDICTION: State the basis for this court's jurisdiction, including the following: (1) the appellate rule providing jurisdiction claimed 9.100(c)(1) and 9.140(b)(1)(D)• (2) the date of filing in the lower tribunal of the order appealed June 25.2009 ; (3) if this is an appeal from a final order, the date of the return of verdict in a jury action N/A the service date of any Fla. R. Civ. P. 1.530 motion N/A and the date of entry of the order deciding such motion N/A 6. PENDING MATTERS IN LOWER TRIBUNAL: Are there any matters, including counts of claims or Counterclaims, still pending in the lower tribunal? If yes, please explain exactly what remains pending. Not in the criminal case. There are civil cases pending against Mr. Epstein. 7. CURRENT AND PRIOR PROCEEDINGS IN THIS COURT: List by style and case number of this court, all cases which are or have been pending before this court involving issues arising from the same lower tribunal case and the current status of same: None. Criminal appeals: List by style and case number of this court all co-defendants currently or previously on appeal to this court. None. Similar Issues: List by style and case number of this court, all cases which are or have been pending before this court which are related to this action or which involve an issue which will be similar or determinative to the issue in this case on appeal. Epstein, Case No. 4D09-2409. If you become aware of appeals filed subsequent to the submission of this docketing statement involving a co-defendant in a criminal case, the same controversy or parties, or substantial similar issues, please file an amended response to this question. 2 EFTA00183948 8. Court Transcript: Do you intend to order any portion of the transcript for the appeal? Yes No  If yes, have all arrangements been made for its preparation? Yes No If yes, date ordered If no, why not? Already filed with court. Estimated date of completion: Estimated number of pages: Name and address of court reporter(s): 9. CUSTODY STATUS IN CRIMINAL APPEALS: Is the appellant in custody and serving a sentence imposed as a result of a conviction which is the subject of this appeal? ves If so, state the length of the sentence imposed. 18 months iail followed by 12 months community control 10. ISSUES: If this case involves the determination of the constitutionality of a statute, cite the statute involved. N/A Please state in short form the anticipated issues raised. For example, on criminal issues: denial of motion for judgment of acquittal, denial of motion to suppress evidence, error in sentence; on civil issues, award of alimony, error in valuation of assets for equitable distribution, error in determining contract damages; error in admission of hearsay at trial. Error in unsealing confidential federal non-prosecution agreement and addendum. 11. TYPE OF CASE: PLACE A CHECK BY THE MOST APPROPRIATE TYPE OF CASE: A. Civil 1. Domestic Relations - divorce, child custody, paternity or support 2. Child dependency 3. Adoption/Termination of Parental Rights 4. Professional Malpractice 5. Products Liability 6. Negligence 7. Contract or Indebtedness 8. Condominium - rules violations, developer suits 9. Foreclosure - mortgage, lien 10. Inmate Appeal - gain time, rule challenges, disciplinary action 11. Attomey's Fees 12. All others - specify 3 EFTA00183949 B. Criminal 1. Direct Appeal - judgment and sentence 2. Direct Appeal - sentence only 3. Direct Appeal - juvenile 4. Collateral Attack - (Rule 3.850 or habeas corpus) - judgment and sentence 5. Collateral Attack - (Rule 3.800, Rule 3.850 or habeas corpus) - sentence only 6. Collateral Attack - juvenile 7. Appeal by the State  8. All Others - specify unsealing of confidential federal non-prosecution agreement C. Administrative 1. Department of Professional Regulation 2. Unemployment Appeals Commission 3. Rule Challenge - specify agency 4. All others - specify Certificate of Service I certify that a copy hereof has been furnished by of July , 2009, to: See attached. mail this 8'44... day mail/hand delivery/fax ignat r A-4-4-12-44- (Print Name) 4 EFTA00183950 2a. NOTICE OF APPEARANCE OF COUNSEL FOR APPELLANT Florida Bar No. BARBARA J. COMPIANI Florida Bar No. KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beams_ 33401-5913 Phone: Fax: Email: Appellate counsel for petitioner ROBERT D. C Florida Bar No. BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 515 North Flagler Drive, Suite 400 West P 3401 Phon Fax: Counsel for petitioner JACK A. GOLDBERGER Florida Bar No. ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West P u 3401 Phon Fax: Counsel for petitioner EFTA00183951 2b. APPELLEE'S TRIAL COUNSEL AND/OR APPELLATE COUNSEL (IF KNOWN) WILLIAM J. BERGER Florida Bar No. ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale FL 3 394 Phone: Fax: Counsel for non-party intervener,M. DEANNA K. SHAS1 Florida Bar No. THOMAS, LC SE NIRIn BRALOW, P.L. 400 North IM Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, F Phone: Fax: Counsel for non-party intervener, Palm Beach Newspapers d/b/a The Palm Beach Post SPENCER T. Kial Florida Bar No. LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens. FL 33410 Phone: Fax: Counsel for non-party intervener, Florida Bar No. STATE ATTORNEY'S OFFICE--WEST PALM BEACH 401 North Dixie Highway West Palm ch FL 33401 Phon • Fax: Counsel for respondent, State of Florida Florida Bar No. U.S. Attorney's Office--Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 Fa Fax: EFTA00183952 3. INTERESTED PERSONS: of State Attorney's Office--West Palm Beach (counsel for respondent, State of Florida) • (non-party intervener) William J. Berger of Rothstein Rosenfeldt Adler (counsel for non-party intervener,...) Honorable Jeffrey J. Colbath (circuit court judge) Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A. (appellate counsel for petitioner) Robert D. Critton of Burman, Critton, Luttier & Coleman (counsel for petitioner) Jeffrey Epstein (petitioner) Jack A. Goldberger of Atterbury, Goldberger & Weiss, P.A. (counsel for petitioner) of Kreusler-Walsh, Compiani & Vargas, P.A. (appellate counsel for petitioner) Spencer T. Kuvin of Leopold-Kuvin, P.A. (counsel for non-party intervener,..) Honorable Kenneth A. Marra (judge, Southern District of Florida) Palm Beach Newspapers d/b/a The Palm Beach Post (non-party intervener) Deanna K. Shullman of Thomas, Locicero & Bralow, P.L. (counsel for non-party intervener, The Palm Beach Post) U.S. Attorney--Southern District EFTA00183953 State of Florida (respondent) i• (non-party intervener) EFTA00183954 CERTIFICATE OF SERVICE U.S. ATTORNEY'S OFFICE SOUTHERN DISTRICT 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale FL 33394 Counsel for•. SPENCER T. KUVIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Counsel for petitioner STATE ATTORNEY'S OFFICE 401 North Dixie Highway West Palm Beach, FL 33401 DEANNA K. SHULLMAN THOMAS, LOCICERO & BRALOW, P.L. 400 North Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 Counsel for petitioner EFTA00183955 KREUSLER-WALSM, COMPIANY & VARGAS, P.A. SUITE 503, FLAGLER CENTER 501 SOUTH FLAGLER DRIVE WEST PALM BEACH. FLORIDA 33401.5913 111111,1 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL, 33401 .21340 bSE.G3S CO23 h1111111111111.111 4 ASS 1"0 PiTNCY COWLS 02 1P 0004162054 JUL 08 2009 MAILED FROM ZIP cone 33401 $ 000.61° Jill EFTA00183956 r, • Fourth District Court of Appeal 1525 Palm Beach Lakes Blvd. West Palm Beach, Florida 33401 ACKNOWLEDGMENT OF NEW CASE DATE: July 1, 2009 STYLE: JEFFREY EPSTEIN STATE OF FLORIDA 4DCA#: 4D09-2554 The Fourth District Court of Appeal has received the Petition reflecting a filing date of 7/1/09 The county of origin is Palm Beach. The lower tribunal case number provided is 20098CF009381A The filing fee is Paid In Full - $300. Case Type: Certiorari Criminal The Fourth District Court of Appeal's case number must be utilized on all pleadings and correspondence filed in this cause. Moreover, ALL PLEADINGS SIGNED BY AN ATTORNEY MUST INCLUDE THE ATTORNEY'S FLORIDA BAR NUMBER. Please review and comply with any handouts enclosed with this acknowledgment. RECEIPT JEFFREY EPSTEIN I. STATE OF FLORIDA 4DCA#: 4D09-2554 Receipt # R2009-1015476 Method of Payment: CK Check # 25986 PAYER: El Filing Fee: $300.00 Total: $300.00 EFTA00183957 cc: Barbara J. Com iani Deanna K. Shullman Hon. Jeffrey J. Colbath Jack A. Goldberger State Attomey-P.B. Spencer T. Kuvin Robert D. Critton, Jr. U.S. Attomey'S Office William J. Berger EFTA00183958 DISTRICT COURT OF APPEAL FOURTH Duna= 1525 PAUA BEACH Wass Rom Warr Peas BEACH, Roam 33401 CK U.S. Attorney'S Office Southern District 500 South Australian Avenue Suite 400 West Palm Beach, FL 33401 SG i -62313 4D09-2554 0171415532992 C..) tU re Cr 14 $0.44° irr 0 4 .0 I 07/01(2009 D. co 1409td FrOC1334 01 r EFTA00183959 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM BEACH, FL 33401 July 1, 2009 CASE NO.: 4D09-2554 L.T. No. : 20098CF009381A JEFFREY EPSTEIN STATE OF FLORIDA Appellant / Petitioner(s), Appellee / Respondent(s). BY ORDER OF THE COURT: ORDERED that the motion to file under seal is granted. ORDERED FURTHER that this court grants the Motion to Use One Appendix to Support the Emergency Petition for Writ of Certiorari and Emergency Motion to Review Denial of Stay. ORDERED FURTHER that this court grants petitioners Emergency Motion to Review the Order June 26, 2009, that denies the motion for stay. The June 25, 2009. order granting the motion to unseal is stayed pending further order of this court. ORDERED FURTHER that within ten (10) days of this order respondent shall show cause why the petition should not be granted. Respondent shall address this court's jurisdiction to review the order as well as the merits of the petition. ORDERED FURTHER that petitioner may have ten (10) days thereafter to reply. I HEREBY CERTIFY that the foregoing is a true copy of the original court order. Served: Sharon R. Bock, Clerk Robert D. Critton, Jr. Deanna K. Shullman Hon. Jeffrey J. Colbath dl Fourth District Court of Appeal Spencer T. Kuvin Jack A. Goldberger U.S. Attorney's Office William J. Berger EFTA00183960 DISTRICT COURT OF APPEAL Fouorm Dew 1525 Pa BEACH LAKES Eiwo. WEST Nut BEACH, Flamm 33401 DL U.S. Attorney'S Office Southern District 500 South Australian Avenue Suite 400 West Palm Beach, FL 33401 6237 It n a 1i U 0171415532992 $0.442. I 07/0112009 Mallet! ifrOln .3340 1 US POSTAGE 4D09-2554 1,.11,,,Ii.,i,ilil 11,11nish6161.1,11.,ill EFTA00183961 IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D09-2554 JEFFREY EPSTEIN, Petitioner, vs. STATE OF FLORIDA,16LM BEc H NEWSPAPERS, INC., IE., a nd Respondents. Pending in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case Nos. 2006 CF 9454AMB, 2008 CF 9381 AMB PALM BEACH NEWSPAPERS, INC. d/b/a THE PALM BEACH Paws RESPONSE TO EMERGENCY PETITION FOR WRIT OF CERTIORARI THOMAS, LoCICERO & BRALOW PL Deanna K. Shullman James B. Lake 101 N.E. 3rd Avenue, Suite 1500 Ft. Lauderdale, Florida 33301 EFTA00183962 TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION 1 JURISDICTION 2 NATURE OF THE RELIEF SOUGHT 2 STATEMENT OF THE CASE AND FACTS 3 SUMMARY OF THE ARGUMENT 7 ARGUMENT 8 I. STANDARD OF REVIEW. 8 II. THE TRIAL COURT CORRECTLY UNSEALED THE NPA. 8 A. The NPA was not Properly Sealed in the First Instance. 8 1. Closure of the Non-Prosecution Agreement Improperly Occurred without a Motion, Notice, Hearing, or a Proper Order. 11 2. Closure of the Addendum Improperly Occurred without any Procedures to Protect the Right of Access at all 12 B. No Basis Exists for Current Closure of the Non-prosecution Agreement or Its Addendum 13 1. Petitioner Cannot Identify a Rule 2.420(cX9) Interest that Warrants Closure. 16 2. The Federal Court's Decisions in Case No. 08-80736 (S.D. Fla. 2008) Did Not Preclude the Lower Court's Orders Unsealing the NPA. 19 3. Federal Rule of Criminal Procedure 6 Did Not Preclude the Lower Court's Orders Unsealing the NPA 21 CONCLUSION 25 CERTIFICATE OF SERVICE 26 EFTA00183963 TABLE OF AUTHORITIES Federal Cases Craig I Harney, 331 U.S. 367 (1947) 8 Doe I Hammond, 502 F. Supp. 2d 94 (D.D.C. 2007) 24 In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299 (M.D. Fla. 1977) 23, 24 Lockhead Martin Corp. I Boeing Co., 393 F. Supp. 2d 1276 (M.D. Fla. 2005) 23 Oregonian Publishing Co. I United States District Court, 920 F.2d 1462 (9th Cir. 1990) 9 U.S. I Rosen, 471 F. Supp. 2d 651 (E.D. Va. 2007) 23 United States I Kooistra, 796 F.3d 1390 (11th Cir. 1986) 9 State Cases Anderson I E.T„ 862 So. 2d 839 (Fla. 4th DCA 2003) 8 Barron I Florida Freedom Newspapers. Inc., 631 So. 2d 113 (Fla. 1988) 10 Combs I State, 436 So. 2d 93 (Fla. 1983) 8 Doe I Museum of Science and History of Jacksonville. Inc., Case No. 92-32667, 1994 W 741009 (Fla. 7th Jud. Cir. June 8, 1994) 17 Fla. Sugar Cane League. Inc. I Fla. Dept. of Envtl. Reg., Case No. 91-2108 (Fla. 2d Jud. Cir. Sept 20, 1991) 22 Hous. Auth. of the City of Daytona Beach . Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994) 21 In re Amendments to Florida Rule of Judicial Administration 2.420 954 So. 2d 16 (Fla. 2007) Sarasota Herald Tribune. Div. of the New York Times Co. I. Holtzendorf, 507 So. 2d 667(Fla. 2d DCA 1987) 9 Sarasota-Herald Tribune I State, 924 So. 2d 8 (Fla. 2d DCA 2QQ6) 2 Sentinel Communications Co. I Watson, 615 So. 2d 768 (Fla. 5th DCA 1993) 9 Wallace I Guzman, 687 So. 2d 1351 (Fla. 3d DCA 1997) 21 ii EFTA00183964 Other Authorities Fla. Const. Art. I, § 23 18 Fla. Const. Art. I, § 24 2 Fla. R. App. P. 9.100(d) 2 Fla. R. Jud. Admin. 2.420 18 iii EFTA00183965 INTRODUCTION This appeal concerns attempts to thwart public scrutiny of how government responded to the prostitution of children in Palm Beach County. In the order at issue below, the trial court correctly unsealed a non-prosecution agreement and its addendum. A predecessor judge found that the agreement significantly induced Petitioner to accept a plea agreement that allowed him to serve 18 months in jail for luring children to his Palm Beach mansion for "massages" or sexual activity. At the time that the non-prosecution agreement and its addendum (collectively "the NPA") were accepted for filing, no basis for closure was asserted or found. Thus, the NPA was not properly sealed, and the prior closure order was properly vacated. Moreover, no basis currently exists for closure, and the pending petition — like Petitioner's filings below — contain nothing more than unsubstantiated assertions that confidentiality is required. Thus, continued closure is not warranted. Certainly unsealing the documents was not such a clear departure from the essential requirements of law as to warrant certiorari relief. Consequently, the pending petition must be denied. In addition, this Court should exercise its inherent authority under Rule 9.410 of the Florida Rules of Appellate Procedure to sanction Petitioner for his frivolous and bad faith attempts to cloak the resolution of the criminal charges 1 EFTA00183966 • against him in secrecy by awarding to Respondent, Palm Beach Newspapers, Inc. d/b/a The Palm Beach Post ("the Post") its attorneys' fees and costs in responding to this petition. JURISDICTION The Post adopts Respondent 's statement concerning jurisdiction. Insofar as this Court finds jurisdiction, the Post requests that this Court expedite its consideration of this matter, so as to remedy the denial to date of the public's and press's constitutional and common law rights of access. Art. I, § 24, Fla. Const.; Fla. R. App. P. 9.100(d); Sarasota-Herald Tribune.. State, 924 So. 2d 8, 11 (Fla. 2d DCA 2006) (rule 9.100(d) permits "expedited" review of orders excluding the press). NATURE OF THE RELIEF SOUGHT The Post asks this Court to deny the pending petition and to let stand the circuit court's Orders dated June 25, 2009 and June 26, 2009, which unsealed the NPA, and directed the Clerk of Court in and for the Fifteenth Judicial Circuit of Florida to release these records to the public.' Petitioner has sought review of the June 26, 2009 Order by motion rather than by petition for writ of certiorari. Though the June 26 Order does address the matter of Petitioner's request for stay, the order also directs the Clerk of Courts to release the records, review of which should have been sought by certiorari. 2 EFTA00183967 STATEMENT OF THE CASE AND FACTS This proceeding concerns the public's constitutional and common law rights of access to records crucial to the disposition of criminal charges against Petitioner Jeffrey Epstein. Specifically, Petitioner seeks review of two orders unsealing a non-prosecution agreement and its addendum (collectively the "NPA"), which are records of the trial court below. State I Epstein, Case Nos. 06 CF9454AMB, 08 CF938 1 AMB. Petitioner was investigated by the State of Florida for felony solicitation of children for prostitution. (A-7 at p. 3, I. 15 — p. 4,1.4; A-8.) The victims allege Epstein brought and paid teenage girls to come to his home for sex and/or "massages." (A-11 at ¶ 6 and n. 1.) Epstein's minor victims are numerous (A-7 at p. 20,11. 13-18) and the case drew attention of the highest-ranking law enforcement officials in Palm Beach County. Frustrated during the course of the investigation, Police Chief Michael Reiter even penned a letter to State Attorney Barry Krischer, calling his office's handling of the investigation "highly unusual" and suggesting that he disqualify himself from the case if the state would not act (A-11 at ¶ 6; A- 18 at p. 36,11. 7-142.) A federal investigation of Epstein's conduct as it relates to soliciting children for prostitution ensued. 2 References to "A-" are to Petitioner's Appendix. 3 EFTA00183968 Then abruptly, in June 2008, Epstein pleaded guilty in the trial court below to felony solicitation of minors for prostitution, was designated a Sexual Offender pursuant to Florida law, and was sentenced to 18-months jail and community control. (A-8.) Before accepting the terms of his state plea, Epstein entered into a non-prosecution agreement with federal prosecutors. (A-7 at p. 38, 11. 9-18.) The non-prosecution agreement and its addendum were filed under seal in the lower court on July 2, 2008 and August 25, 2008, respectively.3 According to Epstein's lawyers (and presumably the NPA itself ), taking the state plea was a condition of the NPA. (A-7 at p. 38,11. 13-18.) The NPA is invalidated if Epstein fails to fulfill the obligations of the state plea deal (A-7 at p. 38, 11. 22 - 25.) In accepting the state plea, the trial court viewed the NPA a "significant inducement in accepting" the plea and recognized that the NPA influenced the defendant to make the state plea. (A-7 at p. 39, 11. 19-21; p. 40,11. 10-13.) In considering the plea at the hearing, the court requested a sealed copy of the non-prosecution agreement and asked whether Petitioner had signed it. (A-7 at 3 The NPA and its addendum were filed under seal in this Court on July 1, 2009. 4 The Post and its lawyers have not seen the NPA, though it was reviewed, in camera, by the trial court (A-19). 4 EFTA00183969 p. 40,11.4-6.) Epstein's lawyer indicated it was signed and interjected that he "would like to seal the copy." (A-7 at p. 40,11. 7-9.) Representatives from the U.S. Attorneys' Office were present at the hearing (A-7 at p. 39,11. 22-23) but stated no objection to filing the non-prosecution agreement in the state court file. Thereupon, without any further consideration, the trial court requested a sealed copy of the non-prosecution agreement. (A-7 at p. 40,11.9-10.) On July 2, 2008, without any further proceedings on the issue, the court entered an Agreed Order Sealing Document in Court File, which allowed Epstein to file the non-prosecution agreement that was attached to the Agreed Order under seal. (A-9.) By its terms, the closure order was limited to the non-prosecution agreement and did not include its addendum. The order makes no findings with respect to closure and never expires. (A-9.) The addendum was filed six weeks later, on August 25, 2008, without any further order of the Court with respect to closure. Since Epstein pleaded guilty to soliciting a minor for prostitution, he has been named in at least 12 civil lawsuits that — like the charges in this case — allege Epstein lured teenage girls to his Palm Beach mansion for sex and/or "massages." (A-1)5 At least 11 cases are pending. In another lawsuit, one of the Epstein's 5 See also A-11 at 116 (citing Does Epstein, Case No. 08-80069 (S.D. Fla. 2008); Doe No. 2j Epstein, Case No. 08-80119 (S.D. Ha. 2008); Doe No. 3.! Epstein, Case No. 08-80232 (S.D. Fla. 2008); Doe No. 4.1 Epstein, Case No. 8- (Footnote continued on next page) 5 EFTA00183970 accusers has alleged that federal prosecutors failed to consult with her regarding the disposition of possible charges against Epstein. (A-1; A-18 at p. 22,1. 20 — p. 23,1. 15.)6 Given the important public interest in this matter, on June 1, 2009, the Post moved to intervene below for the purpose of obtaining access to the NPA. The Court granted the Post's motion to intervene on June 10, 2009 (Supp.A.-1 at 1.)7 The trial court granted the Post's petition for access on June 25, 2009 (A-16, A-18) and on June 26, 2009 denied Epstein's motion for stay and directed the clerk to release the records at noon on Thursday, July 2, 2009. (A-17, A-19.) Epstein's emergency petition for writ of certiorari regarding the June 25, 2009 order and his emergency motion to review the June 26, 2009 order followed. 0 ( D. Fla. 2008); Doe No. 5 1. Epstein, Case No. 08-80381 (S.D. Fla. 2008); . 1. Epstein, Case No. 08-80811 S.D. Fla. 2008); Doe'. Epstein, Case No. 08-80893 (S.D. Fla. 2008); Doe No. 71. Epstein, Case No. 08-80993 (S.D. Fla. 2008); Doe No. 6'. Epstein, Case No. 08-80994 (S.D. Fla. 2008); Doe II Epstein, Case No. 09-80469 (S.D. Ha. 2009); Doe No. 101 Epstein, Case No. 09-80591 (S.D. Fla. 2009); Doe No. 102'. Epstein, Case No. 09-80656 (S.D. Fla. 2009); Doe No. 81. Epstein, Case No. 09-80802 (S.D. Fla. 2009)). 6 See also (A-11 at116) (citing In re: Jane Doe, Case No. 08-80736 (S.D. Fla. 2008)). 7 References to "Supp.A." correspond to the supplemental appendix filed by the Post simultaneous with this brief. 6 EFTA00183971 SUMMARY OF THE ARGUMENT Petitioner's initial filing of the NPA under seal was achieved without any regard for the public's constitutional, statutory and common law rights of access. Florida law flatly prohibits the standardless permanent closure that was achieved in this case. The public has a right to know what transpires in its courtrooms generally and in particular has an interest in understanding how the resolution of this highly unusual prosecution occurred. Moreover, no present basis for closure exists. Petitioner has not shown — and cannot show — that continued closure is proper. Instead, he has made conclusory assertions and relied on red herrings in attempting to keep the public from understanding how government responded to his solicitation of children to perform sex acts. The trial court, having reviewed the records in camera, saw through Petitioner's flimsy arguments. The trial court did not depart from the essential requirements of law in ordering the records unsealed. 7 EFTA00183972 ARGUMENT I. STANDARD OF REVIEW. The standard of review for a petition for writ of certiorari is whether the trial court departed from the essential requirements of law. See Combs . State, 436 So. 2d 93, 95 (Fla. 1983); Anderson E.T., 862 So. 2d 839, 840 (Fla. 4th DCA 2003). II. THE TRIAL COURT CORRECTLY UNSEALED THE NPA. The NPA was neither properly sealed in the first instance nor is properly sealed at present. The trial court did not depart from the essential requirements of law in unsealing the records. A. The NPA was not Properly Sealed in the First Instance. The NPA — a significant inducement to Petitioner's acceptance of the plea — was accepted for filing under seal without any deference to the public's right of access to court records. Such standardless closure cannot withstand scrutiny. Florida has traditionally served as a model for open government and courts. It is well-settled in Florida that "[a] trial is a public event [and] [w]hat transpires in the court room is public property." Miami Herald Publ'g Co._'. Lewis, 426 So. 2d I, 7 (Fla. 1982) (quoting Craig'. Harney, 331 U.S. 367, 376 (1947)). When considering a request to seal judicial records, this Court's "analysis must begin 8 EFTA00183973 with the proposition that all civil and criminal court proceedings are public events, records of court proceedings are public records and there is a strong presumption in favor of public access to such matters." Sentinel Communications Co.' Watson, 615 So. 2d 768, 770 (Fla. 5th DCA 1993). Indeed, the people of this State added Article I, Section 24 to the Declaration of Rights in the Florida Constitution to make clear that the right of access to the records of all three branches of government is of constitutional magnitude. All citizens possess the right to "inspect or copy" such records. Plea agreements and related documents typically are public record. See Oregonian Publishing Co. United States District Court, 920 F.2d 1462, 1465 (9th Cir. 1990) ("plea agreements have typically been open to the public"); United States • Kooistra, 796 F.3d 1390, 1390-91 (11th Cir. 1986) (documents relating to defendant's change of plea and sentencing could be sealed only upon finding of a compelling interest that justified denial of public access). Florida law likewise recognizes a strong public right of access to documents a court considers in connection with sentencing. See Sarasota Herald Tribune, Div. of the New York Times Co.,. Holtzendorf, 507 So. 2d 667, 668 (Fla. 2d DCA 1987) ("While a judge may impose whatever legal sentence he chooses, if such sentence is based on a tangible proceeding or document, it is within the public domain unless otherwise 9 EFTA00183974 privileged."). Under Florida law, closure of judicial records is warranted only under very limited circumstances. In particular, the party seeking closure must demonstrate that: 1. restricting public access is necessary to prevent a serious and imminent threat to the administration of justice; 2. no alternatives, other than a change of venue, would protect the defendant's right to a fair trial; and 3. closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose. Miami Herald Publ'g Co.'. Lewis, 426 So. 2d 1, 6 (Fla. 1982). This test, as well as the standard announced in Barron'. Florida Freedom Newspapers, Inc., 531 So. 2d 113 (Fla. 1988), was essentially codified in former Rule of Judicial Administration 2.051, now 2.420, which was applicable in both criminal and civil cases. Sarasota-Herald Tribune, 924 So. 2d at 11. In April 2007, the Florida Supreme Court adopted emergency amendments to Rule 2.420 in response to Florida media reports of hidden cases and secret dockets, a process that has come to be known as "super-sealing." In re Amendments to Florida Rule of Judicial Administration 2.420, 954 So. 2d 16 (Fla. 2007). In adopting the interim rule, the Florida Supreme Court confirmed its commitment to safeguarding the public's constitutional right of access to court 10 EFTA00183975 records, which the Court held "must remain inviolate." Id. at 17. By its terms, Rule 2.420 does not apply to criminal cases; however, later this year the Supreme Court will consider amendments to the rule that essentially seek to apply the standards applicable in civil cases to criminal ones. See In re Amendments to Florida Rule of Judicial Administration 2.420, Case No. 07-2050 (Fla. 2007). In the circuit below, however, the new Rule 2.420 procedures have been in effect since September 29, 2008. (Supp.A.-2.) In addition, the sealing of the NPA violated principles of Florida law established long before the amendments to Rule 2.420. Consequently, the unsealing of these documents was proper. 1. Closure of the Non-Prosecution Agreement Improperly Occurred without a Motion, Notice, Hearing, or a Proper Order. The non-prosecution agreement was sealed pursuant to an agreed order dated July 2, 2008 (A-9.) At the time, Fifteenth Judicial Circuit Administrative Order 2.032 applied to requests for closure of court records in the lower court. (Supp.A.-3.) The order requires a motion, notice, and a hearing, none of which occurred in this case. (Id. at ¶¶ 1 — 3.) The order further provides that closure is proper only upon showing that the factors set forth in Lewis have been met (Id. at 4) and that "[t]tle reasons supporting sealing the file must be stated with specificity in the order sealing the court record" (IA at ¶ 5), neither of which occurred in this 11 EFTA00183976 case. Contrary to Petitioner's assertion (Petition at 13) neither this rule, nor the common law of Florida, nor the Florida constitution contemplates sua sponte closure of court records upon simple request of the Court or any party. Nor was the closure, in fact, sua sponte, as Epstein himself requested closure (A-7 at p. 40, II. 7-9.) and admittedly filed the NPA in the court file under seal pursuant to an agreed order (A-18 at p. 11, II. 22-23). The agreed order (A-9) contains none of the findings required by Lewis or paragraph 5 of the Administrative Order. The closure order is invalid and was properly vacated. 2. Closure of the Addendum Improperly Occurred without any Procedures to Protect the Right of Access at all. With respect to the sealing of the addendum to the non-prosecution agreement, no procedures were put in place at all. The original non-prosecution agreement was attached to the July 2, 2008 agreed order, which allowed to be filed under seal the "attached document" only. (A-9.) It appears from the record that the addendum — which was not attached to the July 2, 2008 order but was filed six weeks later — was simply filed and accepted under seal without any order allowing for closure. Closure of the addendum was thus improper on that basis as well. The trial court properly unsealed these documents. 12 EFTA00183977 B. No Basis Exists for Current Closure of the Non-prosecution Agreement or Its Addendum. After the Post intervened, at a June 10, 2009 hearing on the issue of closure, the trial court asked Epstein's counsel about the Post's motion (A-11) specifically. Epstein's counsel replied: If the Post's position is the public has a right to acc — access this then there is a procedure in place and ultimately the Court has to conduct a hearing and do a balancing test where you look at whether there is some compelling government interest and that's going to require an evidentiary hearing. So I have no great objection to filing the Request for Closure and then having a hearing in front of the Court. (Supp.A.-1 at p. 3,1. 22 — p. 4,1. 5.) Importantly, Petitioner's counsel did not assert that he had complied with these requirements, but that he would. The Court reset the hearing for June 25, 2009. Petitioner filed a Motion to Make Court Records Confidential (A-13) on June 11, 2009. In it, Epstein cited four reasons the NPA should remain under seal: 1. to prevent a serious and imminent threat to the administration ofjustices; 2. to protect a compelling government interest; 3. to avoid substantial injury to innocent 8 This assertion apparently has been abandoned by Petitioner, because his petition asserts that he has asserted three bases for confidentiality, and does not include this basis. Accordingly, it will not be addressed, except to make note of the fact that Epstein has not at any point in this proceeding identified a threat to the administration of justice, much less a serious and imminent threat. 13 EFTA00183978 third parties; and 4. to avoid substantial injury to a party by disclosure of matters protected by a common law and privacy right, not generally inherent in these specific type of proceedings sought to be closed. (A-13 at ¶ 5.) The motion failed to explain how these interests were implicated, failed to address alternatives to closure, and failed to explain how closure would protect the interests. (A-13.) The lower court heard argument on June 25, 2009. The United States Attorneys' Office was provided notice of the hearing, but chose not to appear. (A- 18 at p. 7, 11. 10-14.) In fact, the U.S. Attorney's Office has taken no position on this matter throughout the lower court proceedings and specifically informed counsel fore. that it had no position (A-18 at p. 7,11. 10-14.) At that hearing, the Court found that the proper procedures to initially seal the records were not followed and then heard argument from Epstein's counsel on his June 11, 2009 motion (A-13). Epstein's counsel consented to that procedure. (A-18 at p. 9,11. 16 -18.) The Judge held that neither the State, nor the U.S. Government, nor Epstein had shown why the NPA ought to remain confidential and ordered the records unsealed.9 (A-16.) It is important to note that the State Attorney's Office appeared at the hearing for the limited purpose of objecting to the release of minor victim's names, which turned out to be a non-issue because the Court, having reviewed the documents in camera, determined that no victim's names were included in the documents (A-19 at p. 21,11. 14-19.) The federal government, as mentioned above, took no position (Footnote continued on next page) 14 EFTA00183979 The trial court did not depart from the essential requirements of law in unsealing the NPA. Administrative Order of the Fifteenth Judicial Circuit 2.303 applies to Petitioner's June 11, 2009 request to seal the records in this case. (Supp.A.-2.) That administrative order — consistent with Lewis and its progeny — applies Rule 2.420's standards to requests for closure of records in criminal proceedings in the Fifteenth Judicial Circuit. Any order authorizing closure must contain findings that one of the interests set forth in Rule of Judicial Administration 2.420(c)(9)(A) is met and that closure is no broader than necessary to protect that interest. (Supp.A.-2 at ¶ 4.); see also Lewis, 426 So. 2d at 3. Motions seeking closure must include a "signed certification by the party making the request that the motion is being made in good faith and is supported by a sound factual and legal basis." (Supp.A.-2 at11 1.) Epstein's initial oral request for closure failed to comply with the requirements of then-applicable law, and he has never presented a sound factual or legal basis for present closure. Consequently, unsealing the documents was fully consistent with the essential requirements of law. and did not appear at any of the hearings on this matter. Nor has either agency appealed the lower court's decision. 15 EFTA00183980 I. Petitioner Cannot Identify a Rule 2.420(c)(9) Interest that Warrants Closure. Though Epstein's belated written motion identified four interests set forth in Rule 2.420(c)(9) that purportedly warrant closure, he failed to explain — either in his motion or at the hearing — how any of them applied. Instead, Petitioner asserted closure was proper because these broad interests would be served by closure, principles of comity require closure, and because the records contain information protected from disclosure by Federal Rule of Criminal Procedure 6. Even though Petitioner now attempts to craft his arguments around the interests set forth in Rule 2.420(c)(9), the trial court cannot be said to have departed from the essential requirements of the law in holding that Epstein's burden had not been met. Epstein's petition asserts that closure is necessary to protect a compelling government interest because, he claims, the U.S. Attorneys' Office — who has been notified of these proceedings and has taken no position whatsoever — has a compelling interest in having the confidentiality provision of its contract with Mr. Epstein honored. See Petition at 15. Assuming such a provision exists (the Post has not seen the document), Petitioner is in no position to assert a compelling interest on the government's behalf, given its decision to take no position on the matter. If such an interest exists, the U.S. government is the party to assert it, and 16 EFTA00183981 it has specifically failed to do so. The trial court did not depart from the essential requirements of law in holding that Petitioner failed to demonstrate a compelling interest in closure. Epstein next asserts that closure is warranted to protect the interest of "innocent third parties" and identifies those third parties as Mr. Epstein's co- conspirators. (Petition at 15). Again, Mr. Epstein lacks standing to assert the interests of third parties. Dol. Museum of Science and History of Jacksonville, Inc., Case No. 92-32567, 1994 WL 741009 (Fla. 7th Jud. Cir. June 8, 1994) (plaintiff lacks standing to assert privacy interest of third party, minor victims of sexual assault by defendant's former employee, who had been convicted) (copy attached at Supp.A.-4). In addition, even if the third parties Mr. Epstein identifies — his purported co-conspirators — were before the Court, they would have no privacy interest in matters pertaining to their criminal conduct. Post-Newsweek Stations, Florida, Inc.,. Doe, 612 So. 2d 549 (Fla. 1992) (Does, whose names were implicated in criminal prostitution scheme, had no right to privacy by virtue of their participation in a crime and thus their names could not be redacted from records provided to the public). Thus, the trial judge did not depart from the essential requirements of law in finding insufficient third-party interests to justify closure. 17 EFTA00183982 The third interest Epstein seeks to invoke is his own right to privacy. See Petition at 15. While Epstein actually does have standing to assert his own right to privacy, Florida law is clear that closure is only proper to protect a "substantial injury to a party by disclosure of matters protected by a common law or privacy right not generally inherent in the specific type of proceeding sought to be closed." Fla. R. Jud. Admin. 2.420(c)(9)(A)(vi) (emphasis added). Epstein argues disclosure of a plea agreement is not generally inherent in a state court plea hearing See Petition at 16. That argument is absurd. Of course Epstein's plea agreement is generally inherent in his criminal prosecution. It is the very reason that prosecution ended, and as the lower court recognized in accepting the plea, it was a "significant inducement" to Petitioner to take the state's deal. (A-7 at p. 39, II. 19- 21.; p. 40,11. 10-13.) Moreover, Florida's constitutional right to privacy is expressly subordinate to the rights of Floridians to access the records of their government. To wit, Article I, § 23, which sets forth the right to privacy, further provides: "[t]his section shall not be construed to limit the public's right of access to public records and meetings as provided by law." Fla. Const. Art. I, § 23. As the Florida Supreme Court has recognized, the privacy amendment has not been construed to protect names and addresses contained in public records. Post Newsweek, 612 So. 18 EFTA00183983 2d at 552. The trial court, having reviewed the NPA in camera, certainly had an opportunity to assess whether a privacy interest not inherent in his criminal prosecution for felony solicitation of children for prostitution is implicated by the NPA. It cannot in good faith be argued that the trial court departed from the essential requirements of law in determining that no such privacy interest was implicated. 2. The Federal Court's Decisions in Case No. 08-80736 (S.D. Fla. 2008) Did Not Preclude the Lower Court's Orders Unsealing the NPA.1° Nor did the trial court's rejection of Petitioner's comity argument depart from the essential requirements of law. In the Southern District of Florida, one of the minor victims of Epstein filed a Petition for Enforcement of Crime Victim's Rights Acts (A-1)." The victim also asked the federal court to allow her to share the NPA with third parties (A-3). Judge Marra denied the motion, finding — as the U.S. Government had argued (A-4) — that the NPA was not a record of the federal court. (A-6) ("First, as respondent points out, the Agreement was not filed in this 10 The Post adopts and incorporates M.'s arguments and analysis on this issue in addition to the arguments it sets forth herein. " The Post notes that A-3 through A-5 were not part of the record below. If the Court is inclined to consider these federal court pleadings, then in fairness it must consider those related pleadings which are attached hereto as Supp.A.-5 through Supp.A.-7 of the Post's Supplemental Appendix. 19 EFTA00183984 case, under seal or otherwise."). The federal court also declined to provide any relief from restrictions on the parties' use and dissemination of the discovery document without prejudice. (A-6 at p.2.) Petitioner argues that the Post should be required to seek relief in Judge Marra's court. He mischaracterizes the nature of the proceedings there. There is no document to unseal in Judge Marra's court. The NPA is not a record of that court, and thus any effort by the Post to obtain access to the NPA there would be futile, and any order requiring it be unsealed by the lower court herein does not conflict with any decision of the federal court. (A-16 at p.3.) In fact, when Judge Marra has been asked to seal records of his court that quote the NPA, he has refused to do so, and has required such records to be filed in the public court file (Supp.A.-5 through Supp.A.-7)'2 Thus, though the NPA is not a record of the federal court, the federal court has rejected attempts to file portions of it under seal. As a result, portions of the NPA appear in the public court file in 12 Page 4 of Supp.A.-5 and paragraph 5 of Supp.A.-6, both publicly on file in the federal court, quote from the NPA. In addition, Epstein's own lawyers quoted extensively from the NPA in seeking to stay one of the civil suits against him. (A- 11 at ¶ 6; A-18, p. 35,1. 18 - p. 36,arporating by reference Supp.A.-5 through Supp.A-6 and Supp.A.-7 I. Epstein, Case No. 08-cv-80811 (S.D. Fla. 2008) at Dkt. 33 pp. 2-5)).) 20 EFTA00183985 the federal civil litigation against Epstein. (Supp.A-5 at p. 4; Supp.A.-6 at ¶ 5; Supp.A.-7 at pp. 2-5.) The proverbial cat is already out of the bag. Notwithstanding, the NPA is a record of this lower court. The lower court did not enter an order conflicting with Judge Marra's rulings (A-16 at p. 3 — expressly noting lack of conflict with Judge Marra's orders) and did not depart from the essential requirements of law in unsealing the NPA. 3. Federal Rule of Criminal Procedure 6 Did Not Preclude the Lower Court's Orders Unsealing the NPA.13 Finally, unsealing the NPA did not conflict with federal law. Records available under state law are sealed by federal law only when federal law absolutely conflicts with state law and requires confidentiality of the records. The Supremacy Clause of the United States Constitution, Art. VI, U.S. Const., comes into play only when federal law clearly requires the records to be closed, and the state is clearly subject to its provisions. E.g., Wallace I. Guzman, 687 So. 2d 1351, 1353 (Fla. 3d DCA 1997) (exemptions to federal Freedom of Information Act do not apply to state agencies); Hous. Auth. of the City of Daytona Beach'. Gomillion, 639 So. 2d 117 (Fla. 5th DCA 1994) (Federal Privacy Act does not exempt from disclosure records of housing authority which are open for inspection 13 The Post adopts and incorporates 's arguments and analysis on this issue in addition to the arguments it sets forth herein. 21 EFTA00183986 under Florida Public Records Act); Fla. Sugar Cane League, Inc. I Fla. Dept. of Envtl. Reg., Case No. 91-2108 (Fla. 2d Jud. Cir. Sept. 20, 1991), per curiam affirmed, 606 So. 2d 1267 (Fla. 1st DCA 1992 (documents received by state agency in course of settlement negotiations to resolve federal lawsuit and confidential settlement agreement with U.S. Department of Justice open to inspection because federal law did not clearly require confidentiality) (Supp.A.-8.) Federal law imposes no such preemption of the Florida constitution and common law in this case. In particular, Federal Rule of Criminal Procedure 6(e) does not restrict access to the NPA. Federal Rule 6(e) restrains grand jurors, court reporters, government attorneys, interpreters and the like from disclosing matters occurring before the grand jury. Petitioner — apparently the former target of the grand jury — is none of these persons. His actions in filing the NPA under seal do not implicate Rule 6(e) no matter what information the NPA contains. The lower court's actions in unsealing the NPA likewise do not implicate Rule 6, because the lower court also is not restrained by Rule 6(e). Moreover, the information contained in the NPA does not constitute "matters occurring before the grand jury" within the meaning of Rule 6. The secrecy rule is limited to such matters for the purpose of "preventing targets of an 22 EFTA00183987 investigation from fleeing or tampering with witnesses or grand jurors, encouraging witnesses to appear voluntarily and speak fully and frankly, avoiding damage to the reputation of subjects or targets of the investigation who are not indicted, and encouraging grand jurors to investigate suspected crimes without inhibition and engage in unrestricted deliberations." Lockhead Martin Corp... Boeing Co., 393 F. Supp. 2d 1276, 1279 (M.D. Ha. 2005). The rule aims to "prevent disclosure of the way in which information was presented to the grand jury, the specific questions and inquiries of the grand jury, the deliberations and vote of the grand jury, the targets upon which the grand jury's suspicion focuses, and specific details of what took place before the grand jury." In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. 1299, 1302-03 (M.D. Fla. 1977). In other words, Rule 6 is implicated if disclosure would reveal secret inner workings of the grand jury. U.S. . Rosen, 471 F. Supp. 2d 651, 654 (E.D. Va. 2007). Disclosure of details of a government investigation that is independent of a parallel grand jury proceeding does not violate Rule 6. Id. Statements by a prosecutor's office about its own investigation, therefore, are not covered by the secrecy rule. Id. at 655. Likewise, the mere mention of other targets of an investigation does not implicate the grand jury secrecy rule. E.Q., In re Interested Party, 530 F. Supp. 2d 136,140-42 (D.D.C. 2008) (government not prohibited by 23 EFTA00183988 Rule 6 from disclosing plea agreement and other materials); Doe f . Hammond, 502 F. Supp. 2d 94, 99-101(D.D.C. 2007) (same). Moreover, "when the fact or document is sought for itself, independently, rather than because it was stated before or displayed to the grand jury, there is no bar of secrecy." In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. at 1304. Here, the Post seeks to review the NPA for its own intrinsic value, and not for the purpose of discerning what transpired before the grand jury now more than a year ago. It is clearly well within the public's right and interest to review the NPA, given the circumstances surrounding the investigation and prosecution of Petitioner as well as the civil claims by women who say Epstein sought to make them his child prostitutes. These facts clearly constitute a proper basis for unsealing these improperly sealed documents. Finally, and even assuming for a moment that the NPA contains grand jury information — which the Post doubts — when the grand jury's work has concluded, and the accused apprehended, the veil of secrecy no longer is necessary and safely may be lifted. In re Grand Jury Investigation of Ven-Fuel, 441 F. Supp. at 1303. Ilere, Petitioner has been convicted, and nothing in the record suggests the grand jury's work is ongoing. Consequently, no basis exists for finding that the trial court departed from the essential requirements of law. 24 EFTA00183989 CONCLUSION The trial court was correct in unsealing the non-prosecution agreement and its addendum. These materials were not properly sealed in the first instance. Moreover, Epstein has not and cannot provide any basis for closure at this juncture. The trial court did not depart from the essential requirements of law in unsealing the NPA. Its order should be affirmed, and the Post should be awarded its fees and costs and such other further relief as this Court deems proper. Respectfully submitted, THOMAS oCICERO & BRALO , PL D nna K. Shullman lorida Bar No.: James B. Lake Florida Bar No.: 101 N.E. Third Avenue, Suite 1500 Fort Lauderdale, FL 33301 Telephone: Facsimile: Attorneys for The Palm Beach Post 25 EFTA00183990 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via U.S. Mail to: Hon. Jeffrey Colbath, Palm Beach County Courthouse, 205 N. Dixie Highway, Room 11F, West Palm Beach, FL 33401; R. Alexander Acosta, United States Attorney's Office - Southern District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401; Barbara Burns, Esq., State Attorney's Office - West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401; Jack Alan Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West Palm Beach, FL 33401; Robert D. Critton, Esq., Burman, Critton, Luther & Coleman, 515 N. Flagler Drive, Suite 400, West Palm Beach, FL 33401; Esq., 501 S. Flagler Drive, Suite 503, West Palm Beach, FL 33401-5913; Spencer T. Kuvin, Esq., Leopold-Kuvin, P.A., 2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410; and Bradley J. Edwards, Esq. and William J. Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394 on this 10th day of July, 2009. Att ey 26 EFTA00183991 CERTIFICATE OF TYPE. SIZE AND STYLE Counsel for Petitioners certifies that this Petition is typed in 14 point (proportionately spaced) Times New Roman. , 27 EFTA00183992 - Not an Official Document Page 1 of II ReporLSeJection Criteria Case ID: Docket Start Date: Docket Ending Date: Case Description Case ID: Case Caption: Division: Filing Date: Court: Location: Jury: Type: Status: 502008CF009381AXXXMB 502008CF009381AXXXMB EPSTEIN, JEFFREY E W - COLBATH Thursday , June 26th, 2008 CF -FELONY MB - MAIN BRANCH N-Non Jury CF -FELONY CLSD - CLOSED CASE Related Cases No related cases were found. Case Event Schedule No case events were found. Case Parties Seq Assoc Expn Date Type ID Name JUDGE DEFENDANT COLBATH, JUDGE JEFFREY GOLDBERGER , ESQ, JACK A 3 30-JUN- 2008 ATTORNEY Aliases: Aliases: Aliases: none none none Docket Entries http://courtcon.co.palm-beach.fl.us/pIs/jiwp/ck_public_qrydoct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00183993 - Not an Official Document Page 2 of I I Docket Number Docket Type Book and Page No. Attached Ti:-. 11 0000C - RPT CASE INITIATED TIMELINESS Filing Date: 26-JUN-2008 Filing Party: Disposition Amount: Docket Text: none. 1 INFO - INFORMATION SHEET Filing Date: 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: ARISES FROM 2006CF009454AXX 1 A AREC - ARREST RECORD Filing Date: J 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. i 1 B TEXT - SEE DESCRIPTION DOCUMENT Filing Date: 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: ROUGH ARREST - NO PROBABLE CAUSE FILED 1 C WOAR - WAIVER OF ARRAIGNMENT Filing Date: 26-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: FILED BY JACK GOLDBERG EVSCH SCHEDULED - HEARING EVENT Filing Date: 27-JUN-2008 Filing Party: !Disposition Amount: http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry_doct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00183994 - Not an Official Document Page 3 of I I (Docket Text: 'none. I 2 JDN - JUDICIAL NOTES Filing Date: 27-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: SET CASE FOR 6/30/08 @ 8:30 AM FOR STATUS CHECK LEVHLD - EVENT HELD Filing Date: 30-JUN-2008 Filing Party: J EPSTEIN, JEFFREY E Disposition Amount: Docket Text: CR-DAMES. PLEAD & ADJ GUILTY SEXUAL OFFENDER. PBCJ 6 CONSECUTIVE W/06-9454AXX. 12 MOS PROB. DEFT MUST REGISTER OFFENDER W/IN 48 HRS OF RELEASE. AS CHARGED. STIP/FOUND: MOS W/CD FOR 1 DAY, TO RUN PBCJ SENTENCE FOLLOWED BY AS A SEXUAL DNA SWAB. MER 2 A GUIL - JUDGMENT OF GUILTY [Filing Date: 30-JUN-2008 [Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 2 B IFNGR - FINGERPRINTS Filing Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 2C ISORD-SENTENCE ORDER Filing Date: 30-JUN-2008 Filing Party: J EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 2 D SORC - CONTINUED SENTENCE ORDER - Filing Date: f30-JUN-2008 Filing Party: IEPSTEIN, JEFFREY E Disposition Amount: http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry_doct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00183995 - Not an Official Document Page 4 all Docket Text: lInone. 2 E RITE - WAIVER OF RIGHTS Filing Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: j none. 2 F I PLS - PLEA SHEET Ifiling Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: J none. 2 G J GLSS - GUIDELINE SCORESHEET Filing Date: 30-JUN-2008 Filing Party: d EPSTEIN, JEFFREY E Disposition Amount: !Docket Text: none. 2 H OAFC - FEES/COST ORDER ASSESSING Filing Date: 30-JUN-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (JUDGE PUCILLO FOR MCSORLEY) IN THE AMOUNT OF $473.00 AS CONDS OF PROB. MER 3 AREC - ARREST RECORD Filing Date: 01-JUL-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: 1 Docket Text: RECOMMIT RCMIT - RECOMMITMENT Filing Date: 01-JUL-2008 Filing Party: Disposition Amount: Docket Text: none. CLSD - CLOSED CASE http://courtcon.co.palm-beackfLus/p1s/jiwp/ck_public_qry_doct.cp_dktrpt docket report?b... 8/4/2009 EFTA00183996 - Not an Official Document Page 5 of I I Filing Date: 08-JUL-2008 Filing Party: 'Disposition Amount: Docket Text: il none RCPT - RECEIPT FOR PAYMENT Filing Date: 14-JUL-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: Iii Payment of -$473.00 was made on receipt CFMB30200. From Bond ID: 00073142 4 ORD - ORDER Filing Date: 21-JUL-2008 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (JUDGE MCSORLEY) OF PROBATION..NUNC PRO TUNC 6/30/08 5 PROC - TRANSCRIPT CRT REPORTER OF Filing Date: 22-JUL-2008 Filing Party: EPSTEIN, JEFFREY E IDisposition Amount: Docket Text: PLEA CONFERENCE, TAKEN 6/30108 6 MOT - MOTION Filing Date: I -DEC-2008 Filing Party: _ EPSTEIN, JEFFREY E Disposition Amount: Docket Text: TO CLARIFY SENTENCE TO CORRECT SCRIVENER'S ERROR FILED BY JACK GOLDBERGER Filing Date: 04-MAY-2009 Filing Party: I EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (JUDGE COLBATH) THAT THE ORDER OF COMMUNITY CONTROL IS CORRECTED TO DELETE SPECIAL CONDITION #26 AND #27. 1-8- --I MOT - MOTION I http://courteon.co.palm-beachnus/p1s/jiwplek_public qry_doct.ep_dktrpt_docket_report5... 8/4/2009 EFTA00183997 - Not an Official Document Page 6 of I I !Filing Date: 112-MAY-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (NONPARTY E VVS) TO VACATE AND UNSEAL RECORDS. ORDER SEALING RECORDS ORSH - ORDER SETTING HEARING Filing Date: [15-MAY-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: SET FOR 5/29/09 RE:MOTION UNSEAL RECORD TO VACATE ORDER TO SEAL AND I EVSCH SCHEDULED - HEARING EVENT Filing Date: 19-MAY-2009 Filing Party: Disposition Amount: Docket Text: none. 10 j NOH - NOTICE OF HEARING Filing Date: 26-MAY-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: SET FOR 5/29/09 10:30 12 I PONG - PLEA OF NOT GUILTY Filing Date: 29-MAY-2009 Filing Party: EPSTEIN, JEFFREY E _ Disposition Amount: Docket Text: none. EVSCH SCHEDULED - HEARING EVENT Filing Date: 01-JUN-2009 Filing Party: Disposition Amount: Docket Text: NON PARTY 'S MOTION TO RECORDS A NSEAL RECORDS VACATE ORDER SEALING EVCAN EVENT http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry_doct.cp_dIctrpt_docket report?b... 8/4/2009 EFTA00183998 - Not an Official Document Page 7 of 11 J CANCELLED/SETTLED Filing Date: 01-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 11 RNOH - RE-NOTICE OF HEARING Filing Date: 01-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: SETTING CASE FOR OTHER HEARING ON 6/10/2009 AT 10:30 AM FILED BY BRADLEY EDWARDS, ESQ. RE: NON PARTY 'S R MOTION TO VACATE ORDER SEALING RECORDS AND UN L RECORDS, HEARING SEET FOR 5/29/2009 IS CANCELLED 13 MOT - MOTION Filing Date: 03-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: TO VACATE ORDER SEALING RECORD AND UNSEAL RECORDS FILED BY BRADLEY EDWARDS, ESQ. 14 I MOT - MOTION Filing Date: J 03-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: PALM BEACH POST'S MOTION TO INTERVENE AND PETITION FOR ACCESS FILED BY DEANNA SHULLMAN, ESQ. EVRST EVENT RESET Filing Date: 10-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: CR-BELTRAN. MOTION TO INTERVENE-GRANTED. NO ACTION ON MOTION TO UNSEAL. RESET FOR MOTION HRG ON 6/25/09. BLE 15 ORD - ORDER Filing Date: 10-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: http://courtcon.co.palm-beach.fl.us/pls/jiwp/ck_public_qry_doctcp_dlctrpt_docket_report?b... 8/4/2009 EFTA00183999 - Not an Official Document Page 8 of I I 'Docket Text: II(COLBATH) 16 CEF - COURT EVENT FORM Filing Date: 10-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Lissposition Amount: 'Docket Text: none. 17 ORD - ORDER Filing Date: 10-JUN-2009 Filing Party EPSTEIN, JEFFREY E 'Disposition Amount: iDocket Text: (COLBATH) EVSCH SCHEDULED - HEARING EVENT Filing Date: 11-JUN-2009 Filing Party: Disposition Amount: Docket Text: none. 19 MOT - MOTION Filing Date: 11-JUN-2009 Filing Party: EPSTEIN, JEFFREY E 'Disposition Amount: Docket Text: TO MAKE COURT RECORDS CONFIDENTIAL. GOLDBERGER, ESQ FILED BY J. 18 MOT - MOTION Filing Date: 11'5-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: TO INTERVENE AND SUPPORTING FILED BY S. KUBIN, ESQ MEMORANDUM OF LAW. EVSCH SCHEDULED HEARING EVENT Filing Date: 25-JUN-2009 Filing Party: Disposition Amount: Docket Text: ITO STAY DISCLOSURE http://courtcon.co.palm-beach.fl.us/p1s/jiwp/ck_public_qry doct.cp_d1ctrpt_docket_report?b... 8/4/2009 EFTA00184000 - Not an Official Document Page 9 of I I EVHLD EVENT HELD Filing Date: Filing Party: 25-JUN-2009 EPSTEIN, JEFFREY E Disposition Amount: Docket Text: CR-WIGGINS (COLBATH) DEFT PRES W/J.GOLDBERGER, GRANTED, CASE RESET FOR MOTION TO STAY DISCLOSURE _EVSCH HEARING EVENT SCHEDULED Disposition Amount: Docket Text: Filing Date: Filing Party: Disposition Amount: Docket Text: none. 21 I MOT - MOTION Filing Date: 25-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: TO STAY DISCLOSURE OPF THE NON- PROSECUTION AGREEMENT AND ADDENDUM PENDING REVIEW. FILE BY R. CRITON, PA EVHLD - EVENT HELD Filing Date: 26-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: CR-WIGGINS. MOTION TO STAY, DENIED. WRITTEN ORDER TO FOLLOW. DOCUMENTS IN QUESTION ARE DELAYED UNTIL NOON ON THURSDAY 02-JUL-2009. MOTION TO COMPEL THE DEFT TO POST BOND - DENIED. 25 -"MOT - MOTION Filing Date: 26-JUN-2009 1Filing Party: EPSTEIN, JEFFREY E Disposition Amount: http://courtcon.co.palm-beach.fl.us/pIs/jiwp/ck_public qry_doct.cp_dktrpt_docket_report?b... 8/4/2009 EFTA00184001 - Not an Official Document Page 10 of I I Docket Text: "FOR ATTY'S FEES AND COSTS. FILED BY D. SHULLMAN, PA 31 CEF - COURT EVENT FORM Filing Date: 26-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. 32 f ORD - ORDER Filing Date: 26-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (JUDGE COLBATH) THAT THE RECORDS ARE DENIED. THE GRANTED. THE MOTION TO UNSEAL GRANTED. MOTIONS TO SEAL THE COURT MOTIONS TO INTERVENE ARE THE DOCUMENTS IS 23 RESP - RESPONSE TO: Filing Date: 29-JUN-2009 'Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: MOTION TO STAY AND SUPPORTING FILED BY S. KUVIN, ESQ MEMORANDUM OF LAW. 24 ODMO - ORDER DENYING MOTION Filing Date: 29-JUN-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (COLBATH) TO STAY DISCLOSURE AGREEMENT 26 PROC - TRANSCRIPT CRT REPORTER OF Filing Date: 01-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: PROCEEDINGS BEFORE THE COURT, 27 1 PROC - TRANSCRIPT CRT REPORTER OF Filing Date: 01-JUL-2009 Filing Party: 'EPSTEIN, JEFFREY E I http://courtcon.co.palm-beach.fi.us/p1s/jiwp/ck_public_qry_doct.cp_dIctrpt_docket_report?b... 8/4/2009 EFTA00184002 - Not an Official Document Page I I of 1 1 [Disposition Amount: Docket Text: PROCEEDINGS BEFORE THE COURT 22 ORD - ORDER Filing Date: 02-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: THAT THE MOTION TO FILE UNDER SEAL IS GRANTED. ORDERED FURTHER THAT THIS COURT GRANTS THE MOTION TO USE ONE APPENDIX TO SUPPORT THE EMERGENCY PETITION FOR WRIT OF CERTIORARI AND EMERGENCEY MOTION TO REVIEW DENIAL OF STAY. ORDERED FURTHER THAT THIS COURT GRANTS PETITIONERS EMERGENCEY MOTION TO REVIEW THE ORDER JUNE 26, 2009, THAT DENIES THE MOTION FOR STAY. THE JUNE 25, 2009 ORDER GRANTING THE MOTION TO UNSEAL IS STAYED PENDING FURTHER ORDER OF THE COURT. ORDERED FURTHER THAT WITHIN TEN (10) DAYS OF THIS ORDER RESPONDENT SHALL SHOW CAUSE WHY THE PETITION SHOULD NOT BE GRANTED. RESPONDENT SHALL ADDRESS THIS COURTS JURISDICTION TO REVIEW THE ORDER AS WELL AS THE MERITS OF THE PETITION. ORDERED FURTHER THAT PETITIONER MAY HAVE TEN (10) DAYS THEREAFTER TO REPLY. 28 MOT - MOTION Filing Date: 06-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: NONPARTY M.'S MOTION FOR ATTORNEYS FEES AND COSTS FILED BY W. BERGER 29 RESP - RESPONSE TO: Filing Date: 06-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: (NTERVENER'S) MOTION TO STAY AND SUPPORTING MEMORANDUM OF LAW. FILED BY S. KUVIN, ESQ 30 EXLT - EXHIBIT LIST Filing Date: 08-JUL-2009 Filing Party: EPSTEIN, JEFFREY E Disposition Amount: Docket Text: none. htm://courtcon.co.palm-beach.fl.us/pls/jiwp/ckpublic_qry_doct.cp_dkupt_clocket_report?b... 8/4/2009 EFTA00184003 07/20/2009 15:22 FAX USA° WPB 07-20-'09 14:21 5 & LOCICERO T-113 P002/00P-137 IN THE DISTRICT COURT OF APPEAL FOURTH DISTRICT OF FLORIDA CASE NO. 4D09-2554 JEFFREY EPSTEIN, Petitioner, vs. STATE OF FLORIDA, LALM BE NEWSPAPERS, INC., ,and I., Respondents. Pending in the Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case Nos. 2006 CF 9454AMB, 2008 CF 9381AMB PALM BEACH NEWSPAPERS, INC. d/b/a THE PALM BEACH POSTS MOTION FOR APPELLATE ATTORNEYS' FEES AND COSTS THOMAS, LoCICERO 8t BRALOW PL Deanna K. Shullman James B. Lake 101 N.E. 3rd Avenue, Suite 1500 Ft. Lauderdale, Florida 33301 EFTA00184004 07/20/2009 15:22 FAX USAO WP goo4 27-20-'09 14:22 FROM-THOMAS & LOCICERO T-113 P003/007 F-937 RESPONDENT PALM BEACH POST'S MOTION FOR APPELLATE ATTORNEYS' FEES AND COSTS Pursuant to Florida Rules of Appellate Procedure 9.400 and 9.410 and Administrative Order Number 2.303 of the Fifteenth Judicial Circuit of Florida, Respondent Palm Beach Newspapers, Inc., d/b/a The Palm Beach Post (the "Pose') moves this Court for an award of attorneys' fees and costs in connection with this review proceeding. In support thereof, the Post states: 1. The Post is a daily newspaper that has covered this matter and related proceedings. In an effort to inform its readers concerning these matters, the Post relies upon (among other things) law enforcement records and judicial records. 2. On June 10, 2009, the trial court granted the Post's Motion to Intervene in this action for the purpose of seeking access to court records. Specifically, the Post sought access to a non-prosecution agreement that was docketed on July 2, 2008, and an addendum docketed on August 25, 2008. 3. On June 25, 2009, the trial court heard oral argument on the Post's (and other non-parties') motions. The Court found that the documents had not properly been sealed in the first instance and further denied Petitioner Jeffrey Epstein's Motion to Make Court Records Confidential dated June 11, 2009. 2 EFTA00184005 07/20/2009 15:23 FAX USAO WP 07-20-'09 14:22 MI PR EIO S & LOCICEE0 kboos T-113 P004/007 F-93/ 4. The Post is entitled to its fees and costs in this matter pursuant to Administrative Order Number 2.303 of the Fifteenth Judicial Circuit of Florida.' Specifically, that order allows sanctions to be imposed against the moving party "if a motion to seal is not made in good faith and is not supported by a sound legal and factual basis." Admin. Or. 15th Jud. Cir. Fla. 2.303. 5. The Post also is entitled to fees and costs in this matter pursuant to Florida Rule of Judicial Administration 9.410, which gives appellate courts discretion to impose sanctions if an appeal "presents no justiciable question and is so devoid of merit on the face of the record that there is little prospect it will ever succeed." E.g.. Visolv I Sec. Pac. Cred. Cow., 768 So. 2d 482, 490-91 (Fla. 3d DCA 2000) (citing Fla. R. App. P. 9.410). Frivolous appeals include those in which a case is found: a. to be completely without merit in law and not supported by a reasonable argument for an extension, modification or reversal of existing law; b. to be contradicted by overwhelming evidence; c. as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or d. as asserting material factual statements that are false. Id. at 491. A copy of Administrative Order 2.303 is attached at Tab 2 to the Post's Supplemental Appendix, which was filed with its response brief. 3 EFTA00184006 07/20/2009 15:23 FAX USAO SIP N 01-20-'09 14:22 FROM-THOMAS & LOCICERO nocie T-113 P005/W0I F-9:17 6. In this case, Mr. Epstein's certiorari petition like his initial filing of these documents under seal and his June 11, 2009 Motion to Make Court Records Confidential — was neither made in good faith nor supported by a sound legal and factual basis. The certiorari petition asserted three interests that ostensibly would be protected by closure but cited no recoid evidence in support of that assertion. Indeed, both in his motion below and at the hearing on the motion, Epstein made no genuine effort to demonstrate by evidence how and why any material interests would be served by closure. Instead, Epstein's arguments addressed extraneous, inapplicable issues that did not support closure and demonstrated his lack of good faith in bringing his motion. Moreover, Epstein's assertion that the trial court's orders contradicted and were preempted by federal court rulings was simply false. Epstein likewise failed to substantiate his arguments in this proceeding, instead again relying on red herrings and unsubstantiated blanket assertions to support his baseless claim that closure is or was proper in this case. 7. Rather, it appears Epstein opposed unsealing of these records simply for the purpose of shielding from public view documents material to the resolution of criminal charges against him for soliciting children for prostitution. In other words, the petition to this Court was merely a ploy intended to delay the public access to judicial records that that the Florida Constitution and common law guarantee. 4 EFTA00184007 07/20/2009 15;23 FAX gm= USA0 NP 07-20-'09 14:22 FROM-THOMAS & LOCICERO T-113 P006/007 F-937 8. In sum, Epstein's arguments for restricting access to his non- prosecution agreement and its addendum are without merit, Epstein's petition to this Court was likewise without support in fact or law, and the Post is entitled to an award of its fees and costs in defending its rights of access. WHEREFORE, the Post respectfully requests that this Court award to it its fees and costs and grant such other relief as the Court deems proper. Respectfully submitted, THOMAS, LOCICERO & BRALOW 5 PL De a K. Shull F rida Bar No.: James B. Lake Florida Bar No.: 101 N.E. Third Avenue, Suite 1500 Fort Lauder Telephone: Facsimile: deanna.shullman@uolawfirm.com Attorneys for The Palm Beach Post EFTA00184008 07/20/2009 15:23 FAX USAO WP 07-20-'09 14:22 tilIRMS & LOCICERO goof( T-113 P007/007 F-937 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been famished U.S. Mail to: Hon. Jeffrey Colbath, Palm Beach County Courthouse, 205 N. Dixie Highway, Room 11F, West Palm Beach, FL 33401; and via facsimile and U.S. Mail to: R. Alexander Acosta, United States Attorney's Office - Southern District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401; Barbara Burns, Esq., State Attorney's Office - West Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401; Jack Alan Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West Palm Beach, FL 33401; Robert D. Critton, Esq., Burman, Critton, Luther & Coleman, 515 N. Flagler Drive, Suite 400, West Palm Beach, FL 33401; Esq., 501 S. Flagler Drive, Suite 503, West Palm Beach, FL 33401-5913; Spencer T. Kuvin, Esq., Leopold-Kuvin, P.A., 2925 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33410; and Bradley 3. Edwards, Esq. and William J. Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, FL 33394 on this 20th day of July, 2009. 6 EFTA00184009 ____Q7/20/2009 15:22 FAX USA° WPB CONFRM (41001 United States Attorney's Office Southern District of Florida 500 S. Australian Ave., Suite 400 West Patin Beach, FL 33401-6235 TO: ORGANIZATION: FAX #: SUBJECT:S i FROM: • x) NUMBER OF PAGES, INCLUDING THIS PAGE: COMMENTS: Original document: To follow via regular mail . To follow via Federal Express tz _vio follow via hand delivery Nothing to follow, FAX := original EFTA00184010 07/20/2000 15:22 FAX USA° WP 07 -2a -'09 14:21 ,WIRRS & LOCICERO I6 002 Thai P1301/Idla r THOMAS LOCICERO BR ALOW a 400 N. DriveeSuite 1100eTam FL 33602 (Phone) (Fax) To Free: facsimile transmittal To: Marilyn, Judicial Assistant to Judge FAX Colbath It Alexander Acosta, Esq., USAO Barbara Burns, Esq., ASAO Jack Alan Goldberger, Esq. Bradley J. Edwards, Esq. William J. Berger, Esq. Robert D. Critton, Esq. Spencer T. Kuvin, Esq. Esq. From: Deanna K. Shullman, Esq. Re: State., J. Epstein Date: Peps: 7 Urgent 0 Please see attached . For review Please comment U Please reply U Please recycle CONFIDENTIALITY STATESfEhtf This eltetroaie message transmission contains information from the law firm of Thomas, LoCiccro PL we is confidential or privileged. The informerion is intended to be for the use of the individual or entity earned above. If you are not the intended recipient, he await that any disclosure, espying, disuibtai contents of this information is prohibited. If you Iowa received this electronic transmission le error, please notify 1.15 by tckphonc immediately. Thank you for your cooperation IRS Circular 230 Dirclosurc, To the extent this conespondence contain: federal tax "Nice, such advice, WAS nee intended to be used, and cannot be vied by any taxpayer, for the purpose of 10 avoiding penalties under the Internal Revenue Code or (i) promoting, matketing, or mcarnmendlagm mother paro,r any uansactlon or mew addressed herein. If you would like of to prepare written tax advl ee designed to provide penalty 1,10=4ica. please eontba us and we will be happy to discuss the meter with you a more derail confidential EFTA00184011 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT JEFFREY EPSTEIN, CASE NO. 4D09-2554 PALM BEACH COUNTY Petitioner, L.T. CASE NO. 2008 CF 009381 A 1. STATE OF FLORIDA, Respondent. AGREED MOTION TO FILE ONE REPLY SUPPORTING PETITION FOR WRIT OF CERTIORARI AND FOR THE TIME TO RUN FROM SERVICE OF THE LAST-FILED RESPONSE Petitioner, JEFFREY EPSTEIN, requests this Court's permission to file one reply supporting his petition for certiorari to the three separate responses filed by respondents and for the time to run from service of the last-filed response, for the following reasons: 1. Mr. Epstein filed an Emergency Petition for Certiorari to review an order compelling disclosure of a confidential federal non-prosecution agreement and addendum. 1 EFTA00184012 2. On July 1, 2009, this Court ordered respondent to show cause within 10 days why the petition should not be granted. This Court allowed Mr. Epstein 10 days to reply. 3. Three groups of respondents filed responses: (1) ■.; (2) M.; and (3) Palm Beach Newspapers, Inc. d/b/a Palm Beach Post ("the Post"). Each respondent is represented by different counsel. The responses were served by mail and on different days. 4. Due to the overlap of arguments in the three responses, it would benefit the parties and this Court if Mr. Epstein filed one reply to the three responses. Accordingly, Mr. Epstein requests permission to file one reply to the three responses. Mr. Epstein requests this Court to order that the reply is due 10 days from service of the last-filed response. Opposing counsel has contacted counsel for respondents (William J. Berger for ■.; Diana L. Martin for M.; and Deanna K. Shullman for the Post), who have all advised they have no objection to this motion. 2 EFTA00184013 I HEREBY CERTIFY that a copy of the foregoing has been sent byAmail this J4k.L, day of July, 2009, to: U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 WILLIAM J. BERGER ROTHSTEIN ROSENFELDT ADLER 401 East Las Olas Boulevard, Suite 1650 Fort Lauderdale. FL 33301 Counsel for SPENCER T. KUVIN DIANA L. MARTIN LEOPOLD-KUVIN, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Counsel for M. State Attorney's Office-West Palm Beach 401 North Dixie Highway West Palm Beach, FL 33401 DEANNA K. SHULLMAN 400 North Drive, Suite 1100 P. O. Box 2602 (33601) Tampa, FL 33602 Counsel for The Palm Beach Post HONORABLE JEFFREY COLBATH 15th Judicial Circuit Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach, FL 33401 ROBERT D. CRITTON of BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 and JACK A. GOLDBERGER of ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 and 3 EFTA00184014 and . I :tBARA. I WIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, FL 33401-5913 Counsel for Petitioner By: - NE KUSLER-WALSH orida Bar No. 4 EFTA00184015 KREUSLER-WALSH, COMPIANI & VARGAS, P.A. SUITE 603, FLAGLER CENTER 501 SOUTH FLAGLER DRIVE WEST PALM BEACH, FLORIDA 33401-5913 Fa: - liliui U.S. Attorney's outhern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 s posPo„ 41/4 ige ►ITNry DOWELS 02 IP 0004162054 JUL 14 2009 MAILED FROM ZIP CODE 33401 $ 000.44° II 11 I I ill lid • EFTA00184016 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, et. al, Respondents. MOTION TO FILE PORTION OF RESPONSE UNDER SEAL Respondent, , moves to file under seal a portion of her response (dealing with this Court's lack of jurisdiction) to the petition for writ of certiorari, on the following grounds: In a portion of her response, attached hereto in the sealed envelope, . discusses page-by-page the sealed document, the Non-Prosecution Agreement. Public disclosure of this portion ofla's response would violate this Court's order staying disclosure of the NPA. For this reason, . moves to file the attached under seal. Copies of the sealed portion have been served only on the attorneys for petitioner and the U.S. Attorney. EFTA00184017 The undersigned counsel spoke with , attorney for petitioner, and represents that she does not oppose this motion to file under seal. I HEREBY CERTIFY that a correct copy of the foregoing has been served by mail this I day of July, 2009, on the parties listed below. ROTHSTEIN ROSENFELDT ADLER Attorneys for.. 401 East Las Olas Blvd., Suite 1650 Fort Lauderdale Florida 33301 Telephone Telecop By: W. ram J. Berger Florida Bar No. SERVICE LIST Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 Deanna K. Shullman 400 North Drive, Suite 1100 P.O. Box 2602 Tampa, Fl 33602 2 EFTA00184018 Spencer T. Kuvin Leopold- Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Robert D. Critton of Burma; Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, Fl 33401 Jack A. Goldberger of Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 State Attorney's Office- West Palm Beach 401 North Dixie Highway West Palm Beach, Fl 33401 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 3 EFTA00184019 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, 15, THE PALM BEACH POST, B.B, Respondents. S RESPONSE TO PETITION FOR CERTIORARI' Respondent, would show this Court as follows: I. Introduction: In an unprecedented request that should shock the conscience of this Court, a convicted child sex offender seeks to conceal from the public the details of his deal with the U.S. Attorney (filed in the lower court) that led him to plead guilty to state charges of procuring a minor to engage in prostitution (a 2nd degree felony) and felony solicitation of prostitution (a 3rd degree felony). His request would make a sham of the public's state has also filed herewith under seal a request to dismiss the petition for lack of jurisdiction. That response is filed under seal because it discusses page-by-page the sealed document EFTA00184020 constitutional right to open government. The lower court properly denied this attempt. This Court, it is respectfully submitted, should deny the petition for certiorari and vacate the order staying disclosure of the sealed documents. a is one of three respondents to the petition for writ of certiorari. The other two, The Palm Beach Post and III, are filing their own responses. The respondents have tried not to repeat the arguments of each other. limits her response here to arguments in the petition based on certain federal court rulings. incorporates by reference the other responses. The proceedings that have led to the petition for writ of certiorari before this Court began with 's May 12, 2009 motion below to vacate the Agreed Order Sealing Document entered by the trial court on July 2, 2008 at the plea and sentencing hearing in the state court criminal proceedings against petitioner. The Agreed Order authorized the filing under seal of the Non-Prosecution Agreement ("NPA") between petitioner and the United States. also moved to unseal an Addendum to the NPA that was sealed on August 23, 2008 without any hearing or court order whatsoever. 2 EFTA00184021 The Palm Beach Post and ■ were granted leave to intervene and file their own motions similar to The lower court, after two hearings, granted the motions and ordered the NPA and Addendum to be unsealed. Petitioner seeks review of that order and the order denying his motion to stay pending appellate review. For the reasons stated below and in the other responses, it is submitted his requests should be denied. 2. Judge Marra expressly authorized the lower court to resolve the issue of whether the state court records should be unsealed. Petitioner places great emphasis on rulings entered by United States District Judge Kenneth Marra, asserting that the order under review here "violated" those rulings. In fact, at a June 12, 2009 hearing2 attended by petitioner's counsel, Judge Marra expressly authorized the lower court, the Honorable Judge Jeffrey Colbath, to resolve the issue of whether the state court records should be unsealed. Responding to a request that he look at the NPA in camera, Judge Marra stated: THE COURT: Maybe Judge Colvat [sic] will resolve this issue for me. 2 The hearing was in the federal civil lawsuits against petitioner. 3 EFTA00184022 MR. JOSEFSBERG: Even if he doesn't, Your Honor, I believe we are allowed to show it to you. THE COURT: I'll tell you what: I'll wait for Judge Colvat [sic] to rule, and then if he rules that it should remain sealed, then I'll consider whether or not I want to have it submitted to me in camera. Iff.-13, page 42, lines 8-15(emphasis added).) All of petitioner's assertions that Judge Colbath's order under review here "violated" Judge Main's orders, that the lower court gave only "lip service" to Judge Marra, that the supremacy clause and the doctrine of federal grand jury secrecy are violated, are all shown by the above quotes to be false assertions. Judge Marra looked forward to a resolution by the lower court of what is purely a state law issue: should these state court records be unsealed? 3. The federal court orders do not support the petition and in fact undermine it. Even if we were to ignore Judge Marra's quotes above, his written orders do not support the petition and in fact undermine it. The first federal order petitioner relies on is an "Order To Compel Production And Protective Order" dated August 21, 2008. The second is an "Order" dated February 12, 2009. (Copies, respectively, are A-2 and A-6 in petitioner's Appendix.4) 3 Reference to I I ' s Appendix is by "(1.11- .).1) 4 EFTA00184023 These orders were entered in a proceeding brought by two of petitioner's victims, Jane Does 1 and 2,5 against the United States under the federal Crime Victim's Rights Act, 18 U.S.C. sec. 3771. Petitioner was not a party to the proceeding. (A-1.) That proceeding is separate from the federal damages actions brought by petitioner's victims. It should also be noted that there has never been a federal court prosecution of petitioner. There was no federal indictment or information filed. In the proceeding where Judge Marra entered the two orders relied on by petitioner, the Jane Does sought to obtain production directly from the files of the U.S. Attorney of a copy of the NPA. They were not asking Judge Marra to "unseal" a state court record. Thus, the context of Judge Marra's two orders was a proceeding by two private citizens solely against the United States to get a federal judge to order the federal prosecutor to produce a document directly from the federal prosecutor's files, not to unseal state court records. The factors going into this extraordinary request—to order the federal prosecutor to turn over documents directly from the files of the prosecutor--are not at all relevant to the purely state law issues before this Court on whether a Reference to petitioner's Appendix is by: "(A-__)." 5 Undersigned's firm represents both Jane Does, filed the papers giving rise to the orders and attended the hearings referenced therein. 5 EFTA00184024 document was improperly sealed by a state court and should be unsealed by that court. The issues before this Court must be resolved by interpreting and applying the state constitution, state open government policies, state rules of judicial administration and the administrative orders of the state circuit court below. They have nothing whatsoever to do with the federal government. In the August 21, 2008 order, Judge Marra granted the Jane Does' ore tenus motion seeking production of the NPA directly from the U.S. Attorney, but with restrictions. He ordered the U.S. Attorney to produce a copy of the NPA to Jane Does' attorneys under a nondisclosure restriction. Notably, the order makes no reference whatsoever to the state court order sealing the NPA in the state court record (even though the state court order (A-9) had already been entered on July 2, 2008) or to the fact that the NPA was already sealed in the state court file (at the plea colloquy on June 30, 2008). That is because the dispute before Judge Marra solely involved two crime victims seeking a document directly from the files of the U.S. Attorney, not from the state court file, and had nothing to do with unsealing state court records. The second order entered on February 12, 2009 was on the Jane Does' written motion to remove any restrictions on disclosure so their attorneys 6 EFTA00184025 could discuss the NPA with third parties. Again, the context was two crime victims trying to publicly disclose a document directly from the files of the U.S. Attorney. Judge Marra denied the motion because the Jane Does had not shown that they should be able to publicly disclose a document they got directly from the U.S. Attorney's files. This issue, again, has nothing to do with whether the lower court should unseal the state court records. But in so ruling, Judge Marra indirectly acknowledged the state trial court's jurisdiction to unseal its own records. Judge Marra stated: "If a specific tangible need arises in a civil case petitioners or other alleged victims are pursuing against Epstein, relief should be sought in that case, with notice to the United States, the other party to the Agreement." (A-6, page 2.) Judge Marra's orders were entered after the NPA was sealed by the lower court; they can have nothing whatsoever to do with whether the NPA was properly sealed. Neither federal order, by their express terms, precludes the lower court from unsealing its own court records. Judge Marra did not enjoin and does not have jurisdiction to enjoin the lower court from unsealing its own records. Younger'. Harris, 401 U.S. 37 (1971). As Judge Marra noted, "the [NPA] was not filed in this case [the federal proceeding], under seal or 7 EFTA00184026 otherwise." (A-6, page 1.) The copy of the NPA in the file of the lower court is a state court record, not a federal court record. Playing Judge Marra off on the lower court is a red herring. CONCLUSION For the foregoing reasons, the petition should be denied and the stay on disclosure vacated. I HEREBY CERTIFY that a copy of the foregoing has been served by mail on the parties listed below this ay of July, 2009. I HEREBY CERTIFY that the foregoing is submitted in Times New Roman 14-point font and complies with the font requirement of Rule 9.100. ROTHSTEIN ROSENFELDT ADLER Attorneys for 401 East Las Olas Blvd., Suite 1650 Fort Lauderdale, Florida 33301 Telephon- ( 4) 522-3456 Telecop 7-8663 By: W' lam J. Berger Florida Bar No. 8 EFTA00184027 SERVICE LIST Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 Deanna K. Shullman 400 North Drive, Suite 1100 P.O. Box 2602 Tampa, Fl 33602 Spencer T. Kuvin Leopold- Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Robert D. Critton of Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, Fl 33401 Jack A. Goldberger of Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 State Attorney's Office- West Palm Beach 401 North Dixie Highway West Palm Beach, Fl 33401 EFTA00184028 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 10 EFTA00184029 Counsel for Petitioner IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, et. al, Respondents. APPENDIX TO RESPONSE TO PETITION FOR WRIT OF CERTIORARI ROBERT D. CRITTON BURMAN, CRITTON, LUTTIER & COLEMAN 515 North Flagler Drive, Suite 400 FL 33401 and JACK A. GOLDBERGER ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue South, Suite 1400 West Pala Beach, FL 33401 IM ad IIIMMEI and BARBARA J. COMPIANI of KREUSLER-WALSH, COMPIANI & VARGAS, P.A. 501 South Flagler Drive, Suite 503 Pal ch, FL 33401-5913 EFTA00184030 Document Tab Proceedings in Southern District Court Transcript of Epstein's Motion to Stay Civil Proceedings (6/12/09) EFTA00184031 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Appendix has been served by mail on the parties listed below this ',day of July, 2009. ROTHSTEIN ROSENFELDT ADLER Attorneys for 401 East Las Olas Blvd., Suite 1650 Fort Lauderdale, Florida 33301 Telephone 4) 522-3456 Telecopier 4 527-8663 By: Willi Florida SERVICE LIST and Barbara J. Compiani or Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 Deanna K. it 400 North WIE Drive, Suite 1100 P.O. Box 2602 (33601) Tampa, Fl 33602 Spencer T. Kuvin Leopold- Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Robert D. Critton of Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, F133401 EFTA00184032 Jack A. Goldberger of Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 State Attorney's Office- West Palm Beach 401 North Dixie Highway West Palm Beach, Fl 33401 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 EFTA00184033 09-a). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA WEST PALM BEACH DIVISION CASE NO. 08-80119-CIV-MARRA JANE DOE, et al., "NC-AIVNED I WEST PALM BEACH, FLORIDA Plaintiffs, I JUNE 12, 2009 vs. JEFFREY EPSTEIN, Defendant. APPEARANCES: x TRANSCRIPT OF MOTION HEARING BEFORE THE HONORABLE KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE FOR THE PLAINTIFFS: ADAM D. HOROWITZ, ESQ. Mermelstein & Horowitz 18205 Biscayne Boulevard Miami, FL 33160 For Jane Doe BRADLEY J. EDWARDS, ESQ. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard Fort Lauderdale, FL 33301 Jane Doe 3, 4, 5, 6, 7 ISIDRO M. GARCIA, ESQ. Garcia Elkins Boehringer 224 Datura Avenue West Palm Beach, FL 33401 Jane DOE II RICHARD H. WILLITS, ESQ. 2290 10th Avenue North Lake Worth, FL 33461 For TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184034 2 1 ROBERT C. JOSEFSBERG, ESQ. 2 Podhurst Orseck Josefsberg 25 West Flagler Street 3 Miami, FL 33130 For Jane Doe 101 4 (Via telephone) 5 KATHERINE W. EZELL, ESQ. Podhurst Orseck Josefsberg 6 25 West Flagler Street Miami, FL 33130 7 For Jane Doe 101 8 FOR THE DEFENDANT: ROBERT D. CRITTON, JR., ESQ. MICHAEL BURMAN, ESQ. 9 Burman Critton, etc. 515 North Flagler Street 10 West Palm Beach, FL 33401 11 JACK A. GOLDBERGER, ESQ. 12 Atterbury Goldberger Weiss 250 Australian Avenue South 13 West Palm Beach, FL 33401 14 ESQ. 15 Assistant U.S. Attorney 500 East Broward Boulevard 16 Fort Lauderdale, FL 33394 For U.S.A. 17 MARTIN G. WEINBERG, ESQ. 18 20 Park Plaza Boston MA 02116 19 (Via telephone) 20 JAY LEFKOWITZ, ESQ. (Via telephone) 21 REPORTED BY: RPR-RMR-FCRR-AE 22 Official United States Court Reporter Federally Certified Realtime Reporter 23 400 North Miami Avenue, Room 8N09 Miami, FL 33128 24 25 TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184035 1 THE COURT: We are here in the various Doe vs. Epstein 2 cases. 3 May I have counsel state their appearances? 4 MR. HOROWITZ: Adam Horowitz, counsel for plaintiffs 5 Jane 2 through Jane Doe 7. 6 THE COURT: Good morning. 7 MR. EDWARDS: Brad Edwards, counsel for plaintiff Jane 8 Doe. 9 THE COURT: Good morning. 10 MR. GARCIA: Good morning, Your Honor. Sid Garcia for 11 Jane Doe II. 12 THE COURT: Good morning. 13 MR. WILLITS: Good morning, Your Honor. Richard 14 Willits, here on behalf of the plaintiff • . 15 THE COURT: Good morning. 16 MS. EZELL: Good morning, Your Honor. I'm Katherine 17 Ezell from Podhurst Orseck, here with Amy Adderly and Susan 18 Bennett, and I believe my partner, Bob Josefsberg, is going to 19 appear by telephone. 20 THE COURT: Mr. Josefsberg, are you there? 21 MR. JOSEFSBERG: I am, Your Honor. 22 THE COURT: Good morning. 23 MR. JOSEFSBERG: Good morning. 24 THE COURT: All right. Do we have all the plaintiffs 25 stated their appearances? Okay. TOTALACCESSCOURTROOMNETWORKREALTIMETRANSCR1PTION EFTA00184036 1 Defense? 2 MR. CRITTON: Your Honor, Robert Critton on behalf of 3 Mr. Epstein, and my partner, Michael Burman. 4 THE COURT: Good morning. 5 MR. GOLDBERGER: Good morning, Your Honor. Jack 6 Goldberger on behalf of Mr. Epstein. 7 THE COURT: I see we have some representatives from 8 the United States Attorney's Office here. 9 MS. Good morning, Your Honor. 10 for the U.S. Attorney's office. 11 THE COURT: Good morning. 12 Who else do we have on the phone? 13 MR. CRITTON: Your Honor, we have two members of the 14 defense team are on the phone, also. 15 THE COURT: Who do we have on the phone? 16 MR. WEINBERG: Martin Weinberg. Good morning, Your 17 Honor. 18 MR. LEFKOWITZ: Jay Lefkowitz. Good morning, Your 19 Honor. 20 THE COURT: Good morning. 21 I scheduled this hearing for very limited issues 22 which, as you all know, there's been a motion by Mr. Epstein to 23 stay the civil proceedings against him. The one issue I have 24 concern about is Mr. Epstein's contention or assertion that by 25 defending against the allegations in the civil proceedings, he TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184037 I may expose himself to an allegation by the United States in the 2 non-prosecution agreement that he's violated that agreement and 3 therefore would subject himself to potential federal charges. 4 I had asked for some briefing on this. I asked the 5 United States to present its position to me. And I received 6 the Government's written response, which I frankly didn't find 7 very helpful. And I still am not sure I understand what the 8 Government's position is on it. 9 So first let me hear from Mr. Epstein's attorneys as 10 to what do you believe the concern is. I don't believe the 11 non-prosecution agreement has ever been filed in this Court; am 12 I correct? 13 MR. CRITTON: To my knowledge, Your Honor, it has not. 14 THE COURT: So I don't believe I've ever seen the 15 entire agreement. I've seen portions of it. 16 MR. EDWARDS: Your Honor, I believe that it was filed 17 under Jane Doe 1 and 2 vs. United States of America, case under 18 seal in your court. 19 THE COURT: Okay. 20 MR. EDWARDS: In a separate case. 21 THE COURT: In that case, okay. Was it actually filed 22 in that case? 23 MR. EDWARDS: I filed it under seal. 24 THE COURT: In any event, what's Mr. Epstein's concern 25 about if you defend the civil actions, you're going to expose TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184038 1 yourself to a claim for a breach by the United States of the 2 non-prosecution agreement? 3 MR. CRITTON: Robert Critton. 4 Your Honor, our position on this case is, I'd say is 5 somewhat different. When this issue originally came before the 6 Court, as you are aware prior to my firm's involvement in the 7 case, there was a motion filed on behalf of Mr. Epstein seeking 8 a stay. And I think it was in Jane Doe 102 and then 9 subsequently Jane Doe 2 through 5 because all of those cases 10 were filed on or about the same time. 11 And at that time the Court looked at the issue and it 12 was based upon a statutory provision at that time. And the 13 Court said I don't find that it's applicable, or for whatever 14 reason I think the Court said I don't consider that to be a 15 pending proceeding or a proceeding at that particular time. 16 In that same order, which was in Jane Doe 2, I 17 believe it's -- not I believe, I know it's docket entry 33, the 18 Court also went on to talk about at that particular point in 19 time dealt with the issue of the discretionary stay. 20 And the Court said at that time, I'm paraphrasing, but 21 the Court also does not believe a discretionary stay is 22 warranted. And what the Court went on to say is that if 23 defendant does not breach the agreement, then he should have no 24 concerns regarding his Fifth Amendment right against 25 self-incrimination. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184039 7 1 The fact that the U.S. Attorney or other law 2 enforcement officials may object to some discovery in these 3 civil cases is not in and of itself a reason to stay the civil 4 litigation, so that any such issue shall be resolved as they 5 arise in the course of the litigation. 6 And I would respectfully submit to the Court that the 7 position that the Government has taken in its most recent 8 filings changes the playing field dramatically. Because what 9 the Government in essence has said as distinct from the U.S. 10 saying is, well, we object to some discovery, or we may object 11 to some discovery in the civil cases. 12 What they have, in essence, said is if you take some 13 action, Mr. Epstein, that we believe unilaterally, and this is 14 on pages 13 and 14 of their pleading or of their response memo 15 to the Court's inquiry, they say if Mr. Epstein breaches the 16 agreement. They said it's basically like a contract, and if 17 one side breaches, the other side can sue. 18 In this instance what the Government will do is if we 19 believe that Mr. Epstein has breached the agreement, we'll 20 indict him. We will indict him. And his remedy under that 21 circumstance, which is an incredible and catastrophic catch 22 22 is, we'll indict him and then he can move to dismiss. That's a 23 great option. 24 In this particular instance my mandate in defending -- 25 and that's a dramatic change in the Government's position, TOTALACCESSCOURTROOMNETWORKREALTIMEMANSCRIPTION EFTA00184040 8 1 because the Government is not saying, and the Court was pretty 2 specific in what you asked the Government for in its response 3 is, in essence, and it's the same question in a more limited 4 fashion you're posing today is whether Mr. Epstein's defense of 5 the civil action violates the NPA agreement, the 6 non-prosecution agreement, between the U.S. and Mr. Epstein. 7 And the Government refuses to answer that question. 8 They won't come out and say, yes, it will, or no, it won't. 9 What they're doing is they want to sit on the sideline, and as 10 their papers suggest is, they want us to lay in wait and that 11 if, in fact, they believe he violates a provision of the NPA as 12 it relates to the defense of this case or these multitude of 13 cases, then they can come in and indict him -- no notice, no 14 opportunity to cure. 15 We don't think that's what the NPA says, but that's 16 certainly what their papers say. We'll indict him, no notice, 17 no opportunity to cure. We will indict him, and his remedy 18 under that circumstance is that he can move to dismiss the 19 indictment. 20 Well, that's great except Mr. Epstein, his mandate to 21 me and I know his mandate to his criminal lawyers, is: Make 22 certain I don't do anything, in particular in these civil cases 23 that would in any way suggest that I am in willful violation of 24 the NPA. 25 Now, in the Court's prior ruling in the docket entry TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184041 1 33, certainly some aspects of the NPA are within Mr. Epstein's 2 control. There's no question about that. But aspects that 3 relate to the defense of these cases, either in terms of the 4 civil lawyers who are defending these, I think there's 12 or 13 5 pending cases in front of you, there's another four cases in 6 the state court, is the risk is substantial, it's real, and it 7 presents a chilling effect for the civil lawyers in moving 8 forward to determine whether or not we're taking some action 9 that in some way may be a violation of the NPA. 10 And the Government's, again, refusal or non-position 11 with regard to past acts that have been taken in the civil case 12 with regard to the defense or future acts that we may take with 13 regard to these contested litigation casts an extraordinary 14 cloud of doubt and uncertainty and fear that the defense of 15 these cases could jeopardize Mr. Epstein and put him in the 16 irreparable position of violating the NPA and then subsequently 17 being indicted. 18 In this particular instance, again, Mr. Epstein has no 19 intention of willfully violating the NPA, but it's of great 20 concern to him. And I'd say with the position that the 21 Government has taken, no notice, no cure period, no opportunity 22 to discuss. Again, we think that's not what the NPA provides, 23 it's not what the deal was between the two contracting parties, 24 the United States and Mr. Epstein. But that's clearly what 25 their papers say under the circumstances, and it would create TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184042 10 1 this irreparable harm to Mr. Epstein under the circumstances. 2 In essence, we're left with a catch 22 in defending 3 the civil cases. We have a mandate to take no action, to.take 4 any action which may be deemed to be a violation of the NPA, 5 either in the past or in the future, which would in any way 6 risk Mr. Epstein being indicted by the United States. 7 He has the clear risk of an indictment based upon the 8 papers that the Government filed. It's real, it's not remote, 9 and it's not speculative. It chills the action of the defense 10 in this instance of both Mr. Epstein and his attorneys in 11 trying to defend these cases and decide under the circumstances 12 can we do this, can we take this position with regard to 13 depositions, can we take this legal position with regard to 14 motions to dismiss, with regard to responses, with regard to 15 replies? 16 And we send out paper discovery. Is this in some way 17 if we contact someone who may be an associate of these 18 individuals as part of our investigation, is that potentially 19 in any way a violation of the NPA? Again, we don't think so. 20 And, obviously, again, my direction has been from my 21 client: Don't take any action that would result in me being 22 indicted under the NPA. Well, that's great. But, generally, 23 civil lawyers or civil lawyers in defending a personal injury 24 case or a tort case, which is exactly what these are, and from 25 a practical standpoint, we use various tools to do discovery. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184043 11. 1 They're standard. They're specific. They're very temporary. 2 Very typical. 3 But in this instance, as the Court knows, things are 4 not typical with regard to this case in any way, shape or form. 5 We can't even serve subpoenaes, there's objections and there's 6 -- we can't even serve objections to third parties so we can 7 obtain documents unless we have to filter it through the 8 plaintiffs' attorneys. They won't allow us to use their 9 clients' names, even in a subpoena that would never be filed in 10 the court. 11 How do we do a deposition of a third party? We wanted 12 to take the deposition of Jane Doe 4. Well, who is she? Well, 13 we can't tell you that. Well, who's the defendant? Well, we 14 can't tell you that because nobody wants anybody to know 15 anything about the case. They want to present it strictly 16 through rose-colored glasses. 17 And in this particular instance, we simply can't 18 defend this case or take certain action with the spector 19 hanging over us that, in fact, the Government may deem it to be 20 a violation of the NPA, because very clearly in their response 21 papers, they don't say. They say we don't take the position, 22 and then they take a substantial position is we think there's 23 not all that substantial factors that would entitle him to a 24 stay. 25 Except for the one major issue which the Court posed TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184044 12 1 in the question is, is can he defend these cases? That's what 2 I really want to know. Can he defend these cases and, in 3 essence, what he has done in the past or what his defense team 4 has done in the past and what they're going to do in the 5 future, can you give him, Epstein, assurances that the 6 Government under this situation, whatever he does, based on 7 advice of counsel, that that cannot be a willful violation of 8 the NPA, which they can -- they, the U.S. -- can then turn 9 around and say that's a violation of the agreement and, 10 therefore, we're going to go proceed to indict you under the 11 circumstances. 12 Our position is, Your Honor, is that the U.S. has now 13 cavalierly suggested that, as they did in picking up on the 14 court's docket entry or prior order, is, look, compliance with 15 the NPA is solely up to Mr. Epstein. In this type of balance 16 of equities, it doesn't speak in favor of a stay. 17 Well, that's great. And maybe that was the position 18 back in '08, on August 5th of '08, when the issue came up in 19 front of the Court with regard to the initial stay. 20 But the Government's papers under these circumstances 21 suggested a very different set of circumstances. Their own 22 unilateral, which is the issue that we argued in the motion for 23 stay, is that the Government's position is that we can 24 unilaterally indict this man if we think he's breached the NPA. 25 We don't think that's right, but we have no buffer TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184045 13 1 between us and the Government. They'll say, and as the Court 2 knows, the Government has substantial power. The Government 3 does what it wants. Most of the time hopefully they're right. 4 Sometimes they make mistakes. 5 But in this particular instance, my client has rights. 6 We think that there's notice provisions, we think there's cure 7 provisions under the NPA. That's not what their paper says 8 under the circumstances. 9 And what we'd like to know from the Government, and 10 maybe the answer is basically what the Court asks is, let the 11 Government come forward today and say, based on the knowledge 12 that we have, or as of today's date, June 12th, 2009, we, the 13 Government, agree that there is no set of circumstances, not 14 that we're not aware of, but as of today's date, there is 15 nothing that exists that would be a violation of the NPA. 16 THE COURT: Well, that's way beyond what I'm 17 interested in. I don't know what Mr. Epstein may have done 18 outside the context of defending this case that may constitute 19 a violation. And if he has done something outside the context 20 of defending this case that's a violation, I don't care. 21 That's between the United States and Mr. Epstein. 22 I'm only concerned about whether anything he does in 23 defending these civil actions is going to be a violation of the 24 non-prosecution agreement. If he has done something else, it's 25 none of my business, and I don't care, and I'm not going to TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184046 14 1 even ask the Government to give you an assurance that he hasn't 2 done anything that might have violated the agreement up till 3 today. I'm only interested in defending these civil actions. 4 MR. CRITTON: Then I would respectfully submit to the 5 Court that the Government be asked in that limited context, are 6 they as of today, whether there were or not, but as of today is 7 there anything that has been done or will you take the 8 position, the United States, that any position that Mr. Epstein 9 has taken with regard to defending these civil cases is in any 10 way a violation of the NPA? 11 THE COURT: Well, I'm not sure what they're going to 12 say, but that might -- that cures the problem up to this point. 13 But then we have to deal with what's going to happen from here 14 on in. And that's another issue that we have to deal with. 15 So I understand your position. 16 But has anyone suggested to you on behalf of the 17 United States that there is something that you've done in 18 defending this case that they believe may or could be construed 19 as a violation of the non-prosecution agreement? Has anyone 20 pointed to anything that you've done? For example, the fact 21 that you've wanted to take their -- I don't know if you've 22 noticed depositions or not in this case, but if you've sent 23 notice of taking deposition, if you sent requests for 24 production of documents, if you sent interrogatories, if you 25 issued third party subpoenas? Is anything you've done thus far TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184047 IS 1 in the context of this case been brought to your attention as a 2 potential violation? 3 MR. CRITTON: I have received no notification nor am I 4 aware that we've received any notification of any action that 5 we have taken today. As I suggested to the Court, I don't know 6 when they've done or not. And in their papers they suggested, 7 well, we don't know everything that's gone on in the civil 8 litigation. 9 But from a practical standpoint, it was a number of 10 comments that were made in their papers is, we can indict, we 11 can see if there's a breach. 12 Judge, I may have some -- 13 THE COURT: Before you go on. 14 MR. CRITTON: I'm sorry. 15 THE COURT: You've focused a great deal on the 16 Government's response to my inquiry as supporting your position 17 that you're in jeopardy. But you've made the suggestion, even 18 before this brief was filed, that defending the case was going 19 to potentially result in an assertion or allegation that you 20 breached the non-prosecution agreement. 21 So what was it that caused you to make that initial 22 assertion? Because that's what caught my attention, was not -- 23 this brief that the Government has filed was in response to 24 something that you filed initially in your most recent motion 25 for a stay which raised the issue. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184048 16 1 So what was it that gave you some concern to even 2 raise the issue that defending this case is going to constitute 3 a breach? 4 MR. CRITTON: Because there are other instances where 5 counsel other than myself, not in the civil aspects, where 6 allegations have been made and letters have been sent by the 7 United States suggesting that there's been a violation of the 8 NPA. And under those circumstances, some notification was 9 provided. 10 THE COURT: Did it have anything to do with defending 11 the civil actions? 12 MR. CRITTON: It did not. 13 THE COURT: So then why was that issue raised by you 14 in the first instance? 15 MR. CRITTON: Because of the prospect that the 16 defendant could take, that the U.S. would take the position 17 under the circumstances that a position that we took with 18 regard to the contested litigation may well impact, that the 19 Government may have a very different view of what the 20 interpretation of the agreement is. 21 And as an example is a number of the parties, and I 22 know the Court doesn't want to get into a discussion, the issue 23 is, is under 2255 is that from the defendant's perspective the 24 deal that was cut on that, it was a very specific deal. It 25 dealt with both consensual and contested litigation. It dealt TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184049 17 1 with a secret list of individuals who we had no idea who was on 2 the list, and a commitment that he would under certain 3 circumstances be required to pay a minimum amount of damages, 4 which our position is under 2255 based upon the statute that 5 was in effect at the time, a $50,000 as to anyone who wanted -- 6 who came forward who was on the list and met certain criteria. 7 The position that now has been asserted by a number of 8 the plaintiffs under the circumstances, and it's been pled, and 9 actually a number of the complainants is, is Epstein agreed, 10 and they cite to a letter that was sent by Ms. from 11 the Government, that says he has to plead guilty or he can't 12 contest liability. That may be true under very, very limited 13 or specific circumstances. 14 But what the plaintiffs have done in a number of the 15 cases, and these are pending motions, is they've said is, well, 16 we think cases is a good example, they've pled 30 17 separate counts of 2255 alleged violations. And they're saying 18 under the circumstances is, therefore, we have 2255 violations, 19 there's 30 of them, so 30 times 150, or should be, or whether 20 it's 150, that's the amount of money that we want, so maybe $15 21 million, or whatever the number is. 22 Some of the other plaintiffs' lawyers have been even 23 more creative. They've said is, well, we'll agree that it's 24 only one cause of action but that each number of violations; 25 that is, if 20 alleged incidents occurred, that we would TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184050 18 1 consider to be, or that we will argue are violations, then we 2 can take 20 times the 50, or the 150, depending on which 3 statute is applicable. 4 So the Government under that set of circumstance could 5 say, and, again, this is one of the reasons that we raised it, 6 they could say, look, our deal with you was that you couldn't 7 contest liability, that you were waiving liability, or your 8 ability to contest an enumerated offense under 2255. 9 Again, part of the deal was as to an enumerated 10 offense. Okay. Well, what's that mean? What did he plead to? 11 Well, he really didn't plead to anything, which is another 12 issue associated with the 2255. But if the Government comes in 13 and says, no, wait a minute, our position was, is that you're 14 stuck with 2255 and the language within the NPA. And, 15 therefore, whether it's an offense or whether it's multiple 16 offenses or violations or each one represents an individual 17 cause of action, if the Government takes the position that's 18 adverse to what we think the clear reading of the agreement was 19 under those circumstances, they could claim a violation. 20 And as a result -- and that's one of the reasons we 21 put -- that was the most glaring one to us, so we raised that 22 issue. And then when the Government's response came with 23 regard to, is we can just proceed to indict if we think that 24 there's been a breach of the agreement. 25 That puts us at substantial risk and chills our TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184051 19 1 ability to move forward. Thank you, Your Honor. 2 THE COURT: Thank you. Who wants to be heard from the 3 plaintiffs first? 4 Is there any plaintiff's attorney who is contending 5 that the defense of these civil actions by Mr. Epstein is going 6 to constitute a breach of the non-prosecution agreement? 7 MR. JOSEFSBERG: Your Honor, this is Bob Josefsberg. 8 May I speak? 9 THE COURT: Yes, sir. 10 MR. JOSEFSBERG: We're not quite confident that any 11 breaches of any agreement, which were third-party 12 beneficiaries, should be resolved by you. We're not saying it 13 shouldn't. But we have not raised any breach of agreement. We 14 think that is between the United States and Mr. Epstein. 15 What I find incredulous and disingenuous is that 16 Mr. Epstein is saying that he wants a stay because he may be 17 forced into taking actions in the defense of this case that 18 would violate the agreement. 19 And let me make our position clear on that. If he 20 wants to move to take depositions, interrogatories, production, 21 and they are according to your rulings appropriate, not 22 invasive of the privacy of someone, and they are relevant, then 23 I don't know how those could in any way be violations of the 24 agreement. 25 What I find hypocritical is that there are two parts TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184052 20 1 to the agreement that I am a beneficiary of. One of them is 2 that he has agreed that on any action brought in the 2255, he 3 will admit to liability. 4 And I received on May 26 a motion to dismiss, which 5 we're prepared to respond to and disagree with, but totally 6 contesting liability, saying that the statute doesn't apply 7 because the girls are no longer minors and saying, and this is 8 the great one, saying that the predicate of the conviction 9 under 2255 has not been satisfied. 10 Now, the understanding that I have is the agreement 11 between the Government and Mr. Epstein was that the Government 12 desired to see these victims made whole, and wanted them to be 13 in the same position as if Mr. Epstein had been prosecuted and 14 pled or convicted. And they would be able to have the 15 predicate oC that criminal conviction, which just as a matter 16 of liability would just be introduced as proof that he's done 17 this. 18 They, under the agreement, are supposed to admit to 19 liability on limited something that's under 2255. He has 20 filed, but since there is no conviction, there can be no civil 21 suit under 2255, with which we disagree. But it is totally in 22 opposite of the NPA. 23 The second part is there are many young ladies, and 24 this perhaps he can use this to his great advantage, who are 25 humiliated about this entire situation. Some of them won't TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184053 21 1 come forward. 2 We were appointed by Judge as a Special Master 3 to represent these young ladies. And some of them don't even 4 want to file suit. They don't even want to be known as Jane 5 Doe 103. They don't want any of the risks for these motions 6 that are pending. 7 And part of the agreement was that if we represented 8 them and they settle, Mr. Epstein would pay our fees. And he 9 has written us as of yesterday that he is under no obligation 10 to pay our fees on settling cases. 11 Now, those two matters, I believe, may be breaches. 12 But I am not asking this Court at this time to do anything 13 about them. Nor am I telling the Government, I'm not running 14 to the Government and saying indict him because I want you to 15 pressure him to do what he agreed to. 16 I'm a third-party beneficiary for that agreement, and 17 I may move to enforce certain parts of it. But as far as the 18 issue of staying the litigation, that is the exact opposite of 19 the intent and the letter of the NPA. The purpose of the NPA 20 was so that these 34 young ladies, these victims who have been 21 severely traumatized, may move on with their lives. 22 And to stay this action would be the exact opposite of 23 the purpose of that agreement and would be horrible 24 psychologically for all of my clients. 25 THE COURT: Mr. Josefsberg, I understand your TOTALACCESSCOURTROOMNEDNOW<REALTIMEDVMOUPTION EFTA00184054 22 1 position. And I don't want to argue the merits of whether a 2 stay should or should not be granted. 3 I'm just trying to understand what the ground rules 4 are going to be if I grant a stay or if I deny a stay. And 5 I've already denied a stay once. I have to decide this current 6 motion, and I just want to know what is going to happen if I 7 deny the stay in terms of Mr. Epstein's exposure under the 8 non-prosecution agreement. That's my concern. 9 So if you're telling me that you're not going to urge 10 the United States, on behalf of any of your clients, to take 11 the position that he's breached the agreement because he's 12 taking depositions, because he's pursuing discovery, because 13 he's conducting investigations that anyone in any other type of 14 civil litigation might conduct with respect to plaintiffs that 15 are pursuing claims against a defendant, that those typical 16 types of actions, in your judgment, are not breaches of the 17 agreement and that he can go forward and defend the case as any 18 other defendant could defend, and you're not going to run to 19 the United States and say, hey, he's breaching the agreement by 20 taking depositions and he's breaching the agreement by issuing 21 subpoenas to third parties in order to gather information 22 necessary to defend, then I don't have a problem. But if he's 23 going to be accused of breaching the agreement because he sends 24 out a notice of deposition of one of your clients, how is he 25 supposed to defend the case? TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184055 23 1 MR. JOSEFSBERG: Your Honor, you're totally correct. 2 He can depose my client. That's not a problem. But the 3 problem is that these are not typical clients and this is not a 4 typical case. He has written in his pleadings that he wants to 5 publish the names of these girls in the newspapers so that 6 other people may come forward to discuss their sexual 7 activities with these different plaintiffs. That's not your 8 typical case. But are rulings that you'll make in this case, 9 and they're not part of the NPA. 10 As far as my going to the Government is concerned, I 11 find it very uncomfortable for me to use the Government to try 12 to pursue my financial interest in litigation. And I know that 13 Mr. Epstein and his counsel will make much ado about it. So I 14 am not going to be running there. 15 However, if they start taking depositions regarding 16 liability, I will consider that to be a breach because they're 17 supposed to have admitted liability. 18 THE COURT: But, again, I don't have the agreement and 19 I don't remember reading the agreement. But what I'm being 20 told is the part of the agreement that admits liability is only 21 as to a 2255 claim, and there are numerous other personal 22 injury tort claims other than 2255 claims. 23 And there's a limit of damages on the 2255 claim, as I 24 understand it, but I presume that all the plaintiffs are going 25 to seek more than the limited or capped amount of damages in TOTALACCESSCOUR7ROOMNETWORKREALTIMETRANSCRIPTION EFTA00184056 24 1 the non-prosecution agreement as to the other claims. 2 And so why aren't they entitled to defend and limit 3 the amount of damages that your client is seeking on the 4 non-2255 tort claims? 5 MR. JOSEFSBERG: Your Honor, you are correct. On 6 non-2255 tort claims, they are permitted to do the defense, 7 whatever is appropriate. 8 My cases are pure 2255 on which liability under the 9 agreement is supposed to be admitted. Now, as to the amount of 10 damages, there are legal issues that will be before you and 11 under the cases that are getting before you, as to 12 whether it is 50 or 150. That has nothing to do with the NPA. 13 There are legal issues that are before you as to 14 whether it is per statute, per count or per incident or per 15 plaintiff. Those have nothing to do with the NPA. There is no 16 amount in NPA. Those will be resolved. 17 Anyone who has brought a case that is outside of 2255, 18 the defense is permitted to contest liability under the NPA. 19 That's no violation. 20 Under the NPA if someone brought a case under just 21 2255, Mr. Epstein, if he is to keep his word, cannot contest 22 liability. And there would no need to stay this. Because it 23 is a self-fulfilling agreement. He can contest liability. And 24 as far as the amount of damages, anyone that wants to go over 25 the statutory minimums, of course, he can contest that in any TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184057 25 1 way that is proper under the Rules of Evidence and your 2 rulings. The NPA has no limitation on his contesting damages 3 above the minimum statutory amount. 4 The only thing that he has done is in his actions of 5 refusing to pay for settling defendants, and in his saying that 6 he has no liability under 2255, those appear to be contrary to 7 what's in the NPA. 8 But I'm not in any position right now to claim a 9 breach, and I don't know whether I'd be claiming a breach or 10 enforcing it in front of you, suing him for fees, asking you to 11 have him admit liability, or complaining to the Government. 12 And that's why I'm not that helpful in this situation because I 13 think it's the Government's role. 14 But I do not waive the right to be a third-party 15 beneficiary because pursuant to my appointment, which was 16 agreed to by Mr. Epstein, I and my clients have certain rights, 17 and we want to enforce them. 18 But his defending this lawsuit will not in any way be 19 a violation. His getting this lawsuit stayed would be a 20 violation of the spirit of taking care of these girls, and 21 there would be other issues. Like if there is a stay, Your 22 Honor, would he be posting a bond? 23 THE COURT: We don't need to talk about those issues. 24 That's not my concern. 25 MR. JOSEFSBERG: I agree, Your Honor, we don't. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184058 26 1 THE COURT: That's not my concern. So, again, I just 2 want to make sure that if the cases go forward and if 3 Mr. Epstein defends the case as someone ordinarily would defend 4 a case that's being prosecuted against him or her, that that in 5 and of itself is not going to cause him to be subject to 6 criminal prosecution. 7 MR. JOSEFSBERG: I agree, Your Honor. 8 THE COURT: Any other plaintiff's counsel want to 9 chime in? 10 MR. WILLITS: Richard Willits on behalf of 11 would join, to weigh in on what Mr. Josefsberg said. 12 MR. JOSEFSBERG: Your Honor, I could not hear. 13 THE COURT: We'll get him to a microphone. 14 Mr. Willits is speaking. 15 MR. WILLITS: On behalf of my client, ., we join 16 in what Mr. Josefsberg said, and we also want to point out 17 something to the Court. 18 First, we want to make a representation to the Court, 19 we have no intention of complaining to the U.S. Attorney's 20 Office, never had that intention, don't have that intention in 21 the future, but, of course, subject to what occurs in the 22 future. 23 I want to point out to the Court that Mr. Epstein went 24 into this situation with his eyes wide open, represented by 25 counsel, knowing that civil suits had to be coming. If he TOTALACCESSCOURTROOMNETWORKREALTIMETRANScRIPTION EFTA00184059 27 1 didn't know it, his lawyers knew it. 2 He appears to be having second thoughts now about he 3 could have negotiated this way or he could have negotiated that 4 way with the U.S. Attorney's Office. And they want to impose 5 their second thoughts on the innocent plaintiffs. We don't 6 think that's fair. We think it's in the nature of invited 7 error, if there was any error whatsoever. Thank you. 9 THE COURT: You agree he should be able to take the 10 ordinary steps that a defendant in a civil action can take and 11 not be concerned about having to be prosecuted? 12 MR. WILLITS: Of course. And we say the same thing 13 Mr. Josefsberg said. It's all subject to your rulings and the 14 direction of this Court as to what is proper and what is not 15 proper. And we're prepared to abide by the rulings of this 16 Court, and we have no intention of running to the State's 17 Attorney. 18 THE COURT: The U.S. Attorney? 19 MR. WILLITS: I'm sorry. The U.S. Attorney. 20 THE COURT: Mr. Garcia. 21 MR. GARCIA: Thank you, Your Honor. 22 If I may briefly, I think perhaps defense counsel 23 forgot about this, but on pages 17 and 19 of my memorandum of 24 law in opposition to the motion to dismiss, I did make 25 reference to the non-prosecution agreement, and I did say that TOTALACCESSCOURTROOMNETWORKFtEALTIMETRANSCRIPTION EFTA00184060 28 1 the contesting of the jurisdiction of this Court was a 2 potential breach of the non-prosecution agreement. 3 So my client happens to have, and they have filed with 4 the Court a copy of her state court complaint, given the fact 5 that the non-prosecution agreement limits the non-contesting of 6 jurisdiction to claims exclusively brought under the federal 7 statute. 8 I'm going to go ahead and withdraw those contentions 9 on pages 17 and 19 of my memo of law because it doesn't apply 10 to my case. So to the extent that I raised this issue with 11 defense counsel and the Court, I'm going to withdraw that 12 aspect of it. 13 THE COURT: Can you file something in writing on that 14 point with the Court? 15 MR. GARCIA: Yes. 16 THE COURT: What do you say about this issue that 17 we're here on today? 18 MR. GARCIA: I think that the problem that I have with 19 it is that this non-prosecution agreement is being used by 20 defense counsel for the exact opposite purpose that it was 21 intended. My perception of this thing, and I wasn't around, is 22 that Mr. Epstein essentially bought his way out of a criminal 23 prosecution, which is wonderful for the victims in a way, and 24 wonderful for him, too. 25 Now he's trying to use the non-prosecution agreement TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184061 29 1 as a shield against the plaintiffs that he was supposed to make 2 restitution for. 3 And, certainly, he can take my client's depo. He's 4 done extensive discovery in the state court case -- very 5 intrusive, I might add. And we don't care, because we can win 6 this case with the prosecution agreement or without the 7 prosecution agreement. We are ready to go forward. 8 THE COURT: You're not going to assert to the United 9 States Government that what he's doing in defending the case is 10 a violation for which he should be further prosecuted? 11 MR. GARCIA: Absolutely not. 12 THE COURT: Anyone else for the plaintiffs? 13 MR. HOROWITZ: Judge, Adam Horowitz, counsel for 14 plaintiffs Jane Doe 2 through 7. 15 I just wanted to address a point that I think you've 16 articulated it. I just want to make sure it's crystal clear, 17 which is that we can't paint a broad brush for all of the 18 cases. 19 The provision relating to Mr. Epstein being unable to 20 contest liability pertains only to those plaintiffs who have 21 chosen as their sole remedy the federal statute. My clients, 22 Jane Doe 2 through 7, have elected to bring additional causes 23 of action, and it's for that reason we were silent when you 24 said does anyone here find Mr. Epstein to be in breach of the 25 non-prosecution agreement. That provision, as we understand TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184062 30 1 it, it doesn't relate to our clients. 2 THE COURT: Okay. But, again, you're in agreement 3 with everyone else so far that's spoken on behalf of a 4 plaintiff that defending the case in the normal course of 5 conducting discovery and filing motions would not be a breach? 6 MR. HOROWITZ: Subject to your rulings, of course, 7 yes. 8 THE COURT: Thank you. 9 Anyone else have anything to say from the plaintiffs? 10 Ms. if you would be so kind as to maybe 11 help us out. I appreciate the fact that you're here, and I 12 know you're not a party to these cases and under no obligation 13 to respond to my inquiries. But as I indicated, it would be 14 helpful for me to understand the Government's position. 15 MS. . Thank you, Your Honor. And we, of 16 course, are always happy to try to help the Court as much as 17 possible. But we are not a party to any of these lawsuits, and 18 in some ways we are at a disadvantage because we don't have 19 access. My access is limited to what's on Pacer. So I don't 20 really know what positions Mr. Epstein may have taken either in 21 correspondence or in discovery responses that aren't filed in 22 the case file. 23 But your first order was really just what do you think 24 about a stay, and then the second order related to this hearing 25 and asked a much more specific question, which is whether we TOTAL ACCFcS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184063 31 1 believe that Mr. Epstein's defense was a breach of the 2 agreement. 3 And I've tried to review as many of the pleadings as 4 possible. As you know, they're extremely voluminous. And I 5 haven't been through all of them. But we do believe that there 6 has been a breach in the filing that Mr. Josefsberg referred 7 to, and contrary to Mr. Critton, we do understand that we have 8 an obligation to provide notice, and we are providing notice to 9 Mr. Epstein today. 10 The pleading that we found to be in breach -- the 11 non-prosecution agreement, sought to do one thing, which was to 12 place the victims in the same position they would have been if 13 Mr. Epstein had been convicted of the federal offenses for 14 which he was investigated. 15 And that if he had been federally prosecuted and 16 convicted, the victims would have been entitled to restitution, 17 regardless of how long ago the crimes were committed, 18 regardless of how old they were at the time, and how old they 19 are today, or at the time of the conviction. 20 And it also would have made them eligible for damages 21 under 2255. 22 And so our idea was, our hope was that we could set up 23 a system that would allow these victims to get that restitution 24 without having to go through what civil litigation will expose 25 them to. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184064 32 1 You have a number of girls who were very hesitant 2 about even speaking to authorities about this because of the 3 trauma that they have suffered and about the embarrassment that 4 they were afraid would be brought upon themselves and upon 5 their families. 6 So we did through the non-prosecution agreement tried 7 to protect their rights while also protecting their privacy. 8 So, pursuant to the non-prosecution agreement -- on the other 9 hand, we weren't trying to hand them a jackpot or a key to a 10 bank. It was solely to sort of put them in that same position. 11 So we developed this language that said if -- that 12 provided for an attorney to represent them. Most of the 13 victims, as you know from the pleadings, come from not wealthy 14 circumstances, may not have known any attorneys who would be in 15 a position to help them. 16 So we went through the Special Master procedure that 17 resulted in the appointment of Mr. Josefsberg, and the goal was 18 that they would be able to try to negotiate with Mr. Epstein 19 for a fair amount of restitution/damages. And if Mr. Epstein 20 took the position, which apparently he has, which is that the 21 $50,000 or $150,000 floor under 2255 also would be a cap. That 22 if they were to proceed to file suit in Federal Court to get 23 fair damages under 2255, Mr. Epstein would admit liability, but 24 he, of course, could fight the damages portion, which means 25 that, of course, he would be entitled to depositions; of TOTAL ACCESS COURTROOM AETWORKREALTIMETRANSCRIPTION EFTA00184065 33 1 course, he would be entitled to take discovery, and we don't 2 believe that any of that violates the non-prosecution 3 agreement. 4 The issue with the pleading that he filed, the motion 5 to dismiss the case, I believe it's Jane Doe 101, represented 6 by Mr. Josefsberg, is that that is a case that was filed 7 exclusively under 18 U.S.C., Section 2255. She met that 8 requirement. Mr. Epstein is moving to dismiss it, not on the 9 basis of damages, he is saying that he cannot be held liable 10 under 2255 because he was not convicted of an offense. 11 The reason why he was not convicted of an offense is 12 because he entered into the non-prosecution agreement. So that 13 we do believe is a breach. 14 The issue really that was raised in the motion to stay 15 and that I addressed in our response to the motion to stay is 16 that Mr. Epstein's -- Mr. Epstein wants to stay the litigation 17 in order to leave, in order to sort of attack the cases of the 18 victims whether they are fully within the non-prosecution or 19 not, non-prosecution agreement or not, and leave the Government 20 without a remedy if he does, in fact, breach those terms. And 21 that is why we opposed the stay. 22 THE COURT: I'm not sure what you mean by that last 23 statement. 24 MS. . Well, because this issue related to 25 the motion to dismiss on Mr. Josefsberg's client came up after TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184066 34 1 we had filed that response. And what we said in the response 2 to the motion to stay is that the reason why he wants to stay 3 the litigation is so that the non-prosecution agreement 4 terminates based on a period of time, as he puts it. And then 5 afterwards he would be able to come in here and make all of 6 these arguments that clearly violate the non-prosecution 7 agreement but we would be without remedy. 8 THE COURT: But you're not taking the position that 9 other than possibly doing something in litigation which is a 10 violation of an express provision of the non-prosecution 11 agreement, any other discovery, motion practice, investigations 12 that someone would ordinarily do in the course of defending a 13 civil case would constitute a violation of the agreement? 14 MS. No, Your Honor. I mean, civil 15 litigation is civil litigation, and being able to take 16 discovery is part of what civil litigation is about. And while 17 there may be, for example, if someone were to try to subpoena 18 the Government, we would obviously resist under statutory 19 reasons, all that sort of stuff. But, no, Mr. Epstein is 20 entitled to take the deposition of a plaintiff and to subpoena 21 records, etc. 22 THE COURT: And even if he seeks discovery from a 23 Government agency, you have the right to resist it under the 24 rules of procedure but that would not constitute a violation, 25 again unless there's a provision in the prosecution agreement TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184067 35 1 that says I can't do this? 2 MS. : Correct. 3 THE COURT: That's your position? 4 MS. : Yes. 5 THE COURT: Thank you. 6 MS. : Thank you, Your Honor. 7 THE COURT: Mr. Critton, did you want to add anything? 8 MR. CRITTON: Yes, sir. Just a few responses to some 9 of the issues that have been raised. 10 The most glaring, at least from our perspective, is 11 both Mr. Josefsberg's comments that he believes that there's a 12 violation of the NPA as well as Ms. with regard to 13 Jane Doe 101. 14 Mr. Josefsberg, while he was the attorney rep who was 15 selected by Judge to represent a number of individuals, 16 alleged victims that may have been on the list, he represents 17 many of them. And the type of response that was filed in 101 18 would probably be very similar to what we will file if he 19 files -- and he filed 102 as well. But if he files 103, 104 20 and 105, or whatever number he files, we may well take that 21 same legal position in our motions and in our response or in 22 reply. 23 And what we've been, in essence, told today is we 24 consider that to be a violation of the NPA under the 25 circumstances. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184068 36 1 102 is a perfect example that he filed is, we have 2 e-mails going back and forth between the Government and my 3 clients' attorneys at the time that suggested that 102 probably 4 doesn't even fit within the statute of limitations. 5 So under Mr. Josefsberg's argument is as well, we've 6 only brought a 2255 claim. We don't care whether she's within 7 or is outside the statute of limitations. Because she was on 8 the list and under the circumstances, he has to admit 9 liability, which we contest is under that set of circumstances 10 you're stuck with it. You can fight damages if you can, but 11 she's a real person and you can't raise statute of limitations. 12 The other point that kind of strikes out is there's 13 probably a difference. And I'm happy to provide a copy of the 14 NPA or a redacted portion of the NPA which deals with the civil 15 issues, which are paragraphs 7, 8, 9 and 10, and the entire 16 addenda in camera for the Court to look at, if plaintiff's 17 counsel and the Government, I guess, really, because they're 18 not a party, is if they have no objection because they all have 19 access based on a prior court order to the non-prosecution 20 agreement. 21 So I'm happy to provide that to the Court today and 22 show it to counsel so that the Court can review that. 23 But our position with regard to the 2255 claims is 24 that -- there were two types of claims that could be filed, one 25 was consensual litigation, the second was contested litigation. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184069 37 1 And under the consensual, in essence, which Mr. Epstein did, is 2 he's offered $50,000 of the statutory minimum for that time 3 period to all of those individuals. 4 THE COURT: Can I interrupt you a second? 5 MR. CRITTON: Yes, sir. 6 THE COURT: I'm not here, and I don't believe it's my 7 role to decide whether or not there is or is not a breach of 8 the agreement. I'm just trying to understand what the 9 Government's position is regarding your defending these cases. 10 Now, I'm just saying this as an example. If, for 11 example, in the non-prosecution agreement there was a provision 12 that said explicitly: Jeffrey Epstein shall not move to 13 dismiss any claim brought under 2255 by any victim no matter 14 how long ago the allegations or the acts took place, period. 15 If that was in the agreement and you filed a motion to 16 dismiss by someone who brought a claim, it might sound like it 17 might be a violation. 18 MR. CRITTON: i agree. 19 THE COURT: So you would know that when you filed your 20 motion because it was right there for you to read. 21 And so to stay the case because I want to do something 22 that the contract expressly prohibits me from doing, so stay 23 the case until the agreement expires so then I can do something 24 that the agreement said I couldn't do so you won't be in fear 25 of prosecuting, I'm not sure that that is what I'm concerned TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184070 38 1 about. 2 I'm concerned about discovery, investigation, motion 3 practice, that's not prohibited by a provision of the 4 agreement. If there's something that's prohibited by the 5 agreement that you, knowing what the agreement says, go ahead 6 and do, anyway, I guess that's a risk you're going to have to 7 take. If there's a legitimate dispute about it, I guess some 8 arbiter is going to decide whether it's a breach or not. 9 But, again, that's something you and Mr. Burman, 10 Mr. Goldberger, and you are all very good lawyers, and he's got 11 a whole list of lawyers representing him, and you've got the 12 agreement and you're going to make legal decisions on how to 13 proceed, and you're going to have to go and make your own 14 decisions. 15 I'm concerned about things that aren't in the 16 agreement, that aren't covered, that you're going to be accused 17 of violating because, again, you take depositions, you send out 18 subpoenas, you file motions that are not prohibited by the 19 agreement. And that's what I'm concerned about. 20 MR. CRITTON: And I understand that, Your Honor. 21 But at the same time, it's as if the lawyers and the 22 clients, based upon our interpretation of the agreement, and, 23 believe me, we would not have filed 101, the motion to dismiss, 24 but for believing that there was a good faith basis to do that 25 under the circumstances. TOTALACCESSCOURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184071 3 1 And now, in essence, we're being accused not only by 2 -- not accused, but it's been suggested that there's a breach 3 of the NPA, not only by Mr. Josefsberg on behalf of 101, but as 4 well Ms. on behalf of the United States. 5 That's the perfect example. They're basically saying 6 we think you violated. We may send you notice under the 7 circumstances. So does that mean that on 101 we have to back 8 off of it because we think in good faith that it's a motion and 9 is that something that this Court ultimately will rule? 10 THE COURT: I don't know that I'm the one who is going 11 to make that decision. Again, that's not the kind of thing 12 that I was concerned about. I was more concerned about the 13 normal, ordinary course of conducting and defending a case that 14 would not otherwise expressly be covered under the agreement, 15 that you're going to then have someone say, ah, he's sent a 16 notice of deposition, he's harassing the plaintiffs. I don't 17 know if there's a no contact provision in the agreement or no 18 harassment type of provision in the agreement. Ah, this is a 19 breach because you sent discovery, or he's issuing subpoenas to 20 third parties trying to find out about these victims' 21 backgrounds, he's breaching the agreement. 22 Those are the kind of things that I was worried about. 23 MR. CRITTON: The concern that we have is as part of 24 doing this general civil litigation, it's not just the 25 discovery process. And I understand the issues that the Court TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184072 40 1 has raised. 2 But part of it is that often cases are disposed of 3 either on a summary basis or certainly legal issues that come 4 before the Court during the course of the case, just like in a 5 criminal case. That's clearly part of the, I'd say the defense 6 of the case under the circumstances; and if, in fact, an 7 individual can't legally bring a cause of action for certain 8 reasons, such as has been suggested in 101, and may be 9 suggested in 102 when that pleading is filed, that certainly is 10 a position that puts my client at risk. 11 As another example that I use with Ns., that they 12 filed this 30-count complaint. Now, they have the state court 13 claims as well. But they, in essence, have said they filed 14 another pleading with the Court that says depending on what the 15 Court rules, in essence, on whether we can file multiple claims 16 or one cause of action with multiple violations, we may dump 17 the state court claims and, therefore, we'll just ride along on 18 that. That's a very different -- 19 Mr. Epstein would never have entered into, nor would 20 his attorneys have allowed him to enter into that agreement 21 under those circumstances where he had this unlimited 22 liability. That clearly was never envisioned by any of the 23 defendants -- by the defendant or any of his lawyers under the 24 circumstances. 25 And if that's claimed to be a violation, either by the IWALACCESSCOURTROOMNETINOWCREACIMETWOMCMPTION EFTA00184073 41 1 attorneys; i.e., he's not recapitulating on liability under the 2 2255, and that's all we have now. That's our exclusive remedy. 3 And the Government says, yeah, that's right, that's a 4 violation of the NPA. It again chills us from moving forward, 5 filing the necessary motion papers and taking legal positions 6 that may put my client at risk for violating the NPA and then 7 creating the irreparable harm of, after having been in jail, 8 after having pled guilty to the state court counts, after 9 registering on release as a sex offender, he's complied and 10 done everything, taken extraordinary efforts to comply with the 11 NPA, puts him at substantial risk. And that's what our worry 12 is moving forward. 13 MR. JOSEPSHERG: Your Honor, may I be heard. May I 14 make three comments? It will take less than a minute. 15 THE COURT: Yes, sir. 16 MR. JOSEFSBERG: Mr. Critton refers to the alleged 17 victims. I want you to know that our position is that pursuant 18 to the NPA they're not alleged victims. They are actual, real 19 victims, admitted victims. 20 Secondly, he argues about the statute of limitations 21 on 102. I know that you don't want to hear about that, and I'm 22 not going to comment about it. But please don't take our lack 23 of argument about this as being we agree with anything. 24 Last and most important, we totally agree with 25 Mr. Critton in his suggestion that he hand you a copy of the TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184074 42 1 NPA. I think that many of the questions you asked will be 2 answered when you read the NPA, and I think it's very unfair of 3 everyone who is sitting in front of you who have the NPA to be 4 discussing with you whether it's being breached, whether there 5 should be a stay when you're not that familiar with it. 6 If we would give you a copy of it, I think it would be 7 much more helpful in making your ruling. 8 THE COURT: Maybe Judge Colvat will resolve this issue 9 for me. 10 MR. JOSEFSBERG: Even if he doesn't, Your Honor, I 11 believe we are allowed to show it to you. 12 THE COURT: I'll tell you what: i'll wait for Judge 13 Colvat to rule, and then if he rules that it should remain 14 sealed, then I'll consider whether or not I want to have it 15 submitted to me in camera. 16 Anything else, Mr. Josefsberg? 11 MR. JOSEFSBERG: No. I thank you on behalf of myself 18 and the other counsel on the phone for permitting us to appear 19 by phone. 20 THE COURT: All right. Anyone else have anything they 21 want to add? 22 MR. EDWARDS: Brad Edwards on behalf of Jane Doe. 23 I only had one issue here, and when I read your motion 24 that you wanted to hear on the narrow issue of just defense in 25 the civil actions filed against him violates the TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184075 43 1 non-prosecution agreement, I was expecting that we were going 2 to hear something from the Government similar to the affidavit 3 that was filed by Mr. Epstein's attorneys wherein he indicates 4 as of the day of this affidavit attached to the motion to stay, 5 the U.S. Attorney's Office has taken the position that Epstein 6 has breached the non-prosecution agreement and it names 7 specifically investigation by Epstein of this plaintiff and 8 other plaintiffs, Epstein's contesting damages in this action. 9 Epstein, or his legal representatives, making statements to the 10 press. And we didn't hear any of those things. 11 So that's what I was expecting that the U.S. 12 Attorney's Office was going to expound on and say, yes, we've 13 made some communications to Epstein. He's violating. 14 What we're hearing right now, today, just so that I'm 15 clear, and I think the Court is clear now, is that the 16 non-prosecution agreement is what it is. There have been no 17 violations, but for maybe what Mr. Josefsberg brought up. 18 But there are very few restrictions on Mr. Epstein. 19 He went into this eyes wide open. And whether or not I agree 20 with the agreement, how it came to be in the first place, is 21 neither here nor there. 22 But there have been no violations or breaches up to 23 this point. And his affidavit that was filed, I'm just 24 troubled by where it even came from. I mean, it's making 25 specific allegations that the U.S. Attorney's Office is TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00184076 44 1 threatening a breach, and this is part of the motion to stay, 2 which we're all battling here. 3 So I just wanted to indicate to the Court or remind 4 the Court that there have been specific allegations made, the 5 United States Attorney's Office is making these allegations of 6 breach, which we haven't heard any of the evidence of. 7 Thank you. 8 THE COURT: All right. 9 Ms. , did you want to respond to that 10 suggestion that there were other allegations of breach besides 11 the one that you've just mentioned today? 12 MS. : No, Your Honor. 13 THE COURT: Thank you. I appreciate your giving me 14 the information, which I think has been very helpful today, and 15 I'll try and get an order out as soon as possible. 16 [Court adjourned at 11:10 a.m.). 17 CERT/F/CATE 18 I hereby certify that the foregoing is an accurate 19 transcription of proceedings in the above-entitled matter. 20 sI 21 DATE , RPR-CM-RMR-FCRSC 22 Official United States Court Reporter 400 N. Miami Avenue 23 Miami, FL 33128 - (Fax) 24 25 email: Quality Assurance by Proximity Ungulbase Technologies EFTA00184077 Page 4 A abide 27:15 ability 184 191 able 20:14 27:9 32:18 34:5,15 about 4:24 5:25 6:10 6189211:15 13:22 20:25 21:13 23:13 2523 27:2 27:11,23 28:16 30:24 32:2,2,3 34:16 38:1,2,7,15 38:19 39:12,12,20 39:22 41:20,21,22 41:23 above251 above-entitled 44:19 Absolutely 29:11 access 30:19,19 36:19 according 1921 accurate 44:18 accused 2223 38:16 39:1,2 action 7:13 8:59:8 10:3,4,9,21 11:18 15:4 17:24 18:17 20:2 21:22 27:10 29:23 40:7,16 43:8 actions 5:25 13:23 14:3 16:11 191,17 22:16 23:4 4225 Bedsides 23:7 acts 9:11,12 37:14 actual 41:18 actually 5:21 17:9 Adam 1:13 3:4 29:13 add 29:5 35/ 4221 addenda 36:16 Adderly 3:17 additional 29:22 address 29:15 addressed 33:15 adjourned 44:16 Adler 1:17 admit 20:3,18 25:11 32:23 36:8 admits 23:20 admitted 23:17 24:9 41:19 ado 23:13 advantage 20:24 advent 18:18 advice 12:7 affidavit 43:2,4,23 afraid 32:4 after 33:25 41:7,8,8 afterwards 34:5 again 9:10,18,22 10:19,20 18:5,9 23:18 26:1303 3425 38:9,17 39:11 41:4 against 4:23,25 6:24 22:15 26:4 29:1 4225 agency 34:23 ago 31:17 37:14 agree 13:13 1723 25:25 26:7 27:9 37:18 41:23,24 43:19 agreed 17:9 20:2 21:15 25:16 agreement 5:2,2,11 5:15 6:2,23 7:16 7:19 8:5,6 12:9 13:24 142,19 15:20 1620 18:18 18:24 19:6,11,13 19:18,2420:1,10 20:18 21:7,16,23 22:8,11,17,19,20 22:23 23:18,19,20 2411,9,23 27:25 28:2,5,19,25 29:6 29:7,25 30:2 31:2 31:11 32:6,8 33:3 33:12,1934:3,7,11 34:13,25 36:20 37:8,11,15,23,24 38:4,5,5,12,16M 38:22 39:14,17,18 39:21 4020 43:1,6 43:16,20 ab 39:15,18 ahead 28:8 38:5 a11:4 allegation 5:1 15:19 allegations 4:25 16:6 37:14 43:25 444,5 44:10 'kW 1717,25 35:16 41:16,18 allow 11:8 31:23 allowed 40:2042:11 along 40:17 already 22:5 always 30:16 Amendment 6:24 America 5:17 amount 17:3,20 23:25 24:3,9,16,24 25:3 32:19 gala 3:17 2:14 40 another9:5 14:14 18:1140:11,14 maw 8:713:10 answered 422 anybody 11:14 anyone 14:16,19 17:5 22:13 24:17 2424 29:12,24 30:942:20 anything 83211:15 13:22 14:2,7,20,25 16:10 18:11 21:12 30:9 35:7 41:23 42:16,20 anyway 38:6 apparently 32:20 appear 3:19 25:6 42:18 appearances 1:12 3:3,25 appears 27:2 applicable 6:13 18:3 apply 20:6 28:9 appointed 21:2 appointment 25:15 32:17 appreciate 30:11 44:13 appropriate 19:21 24:7 arbiter 38:8 argue 18:1 22:1 argued 12:22 argues 4120 argument 36:5 41:23 arguments 34:6 arise 7:5 around 12128:21 articulated 29:16 asked 5:4,4 32 14:5 30:25 411 asking 21:12 25:10 asks 13:10 aspect 28:12 aspects 9:1,2 16:5 assert 29:8 asserted 17:7 assertion 4:24 15:19 15:22 Assistant 2:15 associate 10:17 associated 18:12 assurance 14:1 assurances 122 attached 43:4 attack 33:17 attention 15:1,22 Attatury 2:12 attorney 2:15 7:1 19:4 27:17,18,19 32:12 35:14 attorneys 5910:10 11:8 32:14 36:3 40:2041:1 433 Attorney's 4:8,10 26:19 27:4 43:5,12 4325 44:5 August 12:18 Australian 2:12 authorities 322 Avenue 1:21,23 2:12 2:23 44:22 aware 6:6 13:1415:4 a.m 44:16 back 12:18 36:2 39:7 backgrounds 39:21 balance 12:15 bank 32:10 based 6:12 10:7 12:6 13:11 17:434:4 36:19 3822 baskally 7:16 13:10 39:5 bash 331 38:24 40:3 battling 442 Beach 12,4,21110 2:13 before 1:11 6:5 15:13,18 24:10,11 24:13 40:4 behalf 3:14 4:2,6 6:7 14:16 22:10 26:10 2615 30:3 39:3,4 42:17,22 bring 9:17 10:6,21 23:19 264 28:19 29:19 34:15 39:1 41:23 42:4 believe 3:18 5:10,10 • 5:14,16 6:17,17,21 713,19 8:11 14:18 21:11 31:1,5332 33:5,13 37:6 3823 42:1 I believes 35:11 believing 3824 beneficiaries 19:12 beneficiary 20:1 21:16 25:15 Bennett 3:18 besides 44:10 between 8:69:23 13:1,21 19:14 2011 36:2 beyond (3:16 Biscayne 1:14 Bob 3:18 19:7 Boehringer 1:20 bond 25:22 Boston 2:18 both 10:10 16:25 35:11 bought 2822 Boulevard 1:14,17 2:15 Brad 3:742:22 BRADLEY 1:16 breads 6:1,23 15:11 16:3 18:24 19:6,13 23:16 25:9,9 28:2 29:24 30:5 31:1,6 31:10 33:13,20 37:7 38:8 39:2,19 44:1,6,10 breached7:19 12:24 15:20 22:1142:4 43:6 breathes 7:15,17 19:11 21:1/ 22:16 4322 breaking 22:19,20 2223 39:21 brkf 15:18,23 briefing 5:4 briefly 2722 bring 29:22 40:7 broad 29:17 brought 15:1 20:2 24:17,20 28:6 32:4 36:6 37:13,16 43:17 Broward 2:15 brush 29:17 buffer 1225 Burman 2:8,9 4:3 38:9 business 13:25 C C2:1 44:17,17 came 6:512:18 17:6 18:22 33as 43:20 43:24 camera 36:16 42:15 cap 32:2! 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21:7 26:24 33:5 representing 38:11 represents 18:16 35:16 requests 14:23 required 17:3 requirement 33:8 resist 34:18,23 resolve 42:8 resolved 7:4 19:12 24:16 respect 22:14 respectfully 7:6 14:4 respond 20:5 30:13 44:9 response 5:6 7:14 8:2 11:20 15:16,23 18:22 33:15 34:1,1 35:17,21 responses 10:14 30:21 35:8 restitution 29:2 31:16,23 EFTA00184082 Page 50 restitution/damages 32:19 restrictions 43:18 result 10:21 15:19 18:20 resulted 32:17 review 31:3 36:22 Richard 1:23 3:13 26:10 ride 40:17 right 3:24 6:24 12:25 13:3 25;8,14 34;23 37:2041:3 42:20 43:14 44:8 rights )3:5 25:16 32:7 risk 9:6 10:6,7 18:25 38:6 40;10 41:6,11 risks 21:5 Robert 2:1,8 4:2 6:3 role 25:13 37:7 Room 2:23 Rosenfeldt 1;17 rose-colored 11:16 Rothstein 1:17 RPR-CM-RMR-F... 44:21 RPR-RMR-FCRR... 2:21 rule 39:9 42:13 rules 22:3 25:1 34:24 40:15 42:13 ruling 8:25 42:7 rulings 19:21 23:8 25:2 27:13,15 30:6 run 22:18 running 21:13 23:14 27:16 S same 6:10,16 8:3 20:13 27:12 31:12 32:10 35:21 38:21 satisfied 20:9 saying 7:10 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Mia==pl=•• =mill•••••41.•••• EFTA00184084 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA, FOURTH DISTRICT CASE NO: 4D09-2554 L.T. No. 2008 CF 9381 JEFFREY EPSTEIN, Petitioner, STATE OF FLORIDA, If , THE PALM BEACH POST, Respondents. a'S SEALED REQUEST TO DISMISS THE PETITION FOR LACK OF JURISDICTION Respondent, IIII., would show the Court as follows: 1. This Court lacks jurisdiction to hear this petition. The order under review is a non-final order for which no appeal is provided by Rule 9.130. A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstances. The order must depart from the essential requirements of law and thus cause material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal. Allstate Ins. Co.'. Langston, 655 So.2d 91, 94 (Fla. 1995); Barad & Co. I. EFTA00184085 McGuire, 670 So.2d 153 (Fla. 4th DCA 1996); see, Menke' Broward School Bd, 916 So.2d 8 (Fla. 4111DCA 2005). The requirement of irreparable harm is jurisdictional. Allstate; Barad & Co. A petitioner's failure to demonstrate the satisfaction of this jurisdictional element should result in dismissal of a petition for writ of certiorari. Barad & Co. As shown below, petitioner fails to meet this jurisdictional threshold. 2. Disclosure of the NPA will not cause petitioner irreparable harm. a. There is nothing in the NPA that is confidential and disclosure will not cause petitioner irreparable harm ("there's no cat in the bag"). Petitioner does not cite a single term, provision, sentence or word in the NPA' that is confidential. There are no "confidentiality provisions" in the NPA, contrary to petitioner's misleading assertions (i.e., petition at page 10). There is not a single detail about this sex offender's plea deal with the U.S. Attorney or the state attorney that should be hidden from the public. A page-by-page review of the NPA demonstrates this. The first page discusses that local law enforcement have conducted investigations of The undersigned attorneys were given a co of the NPA through the federal proceedings before Judge Marra (see 's response to the petition filed herewith), but, inexplicably, undersigned was not provided a copy of the Addendum. We have never seen it and do not know its contents. 2 EFTA00184086 petitioner; that he was charged by indictment with solicitation of prostitution; that the U.S. Attorney and FBI have conducted their own investigation of his crimes against the United States from 2001-2007 including crimes for inducing minor females to engage in prostitution; conspiring to use interstate commerce to engage in illicit sexual conduct; using interstate commerce to induce minor females to engage in prostitution; traveling in interstate commerce to engage in illicit sexual conduct with minor females; recruiting minors to engage in a commercial sexual act. The second page provides that petitioner wishes to resolve globally his state and federal charges; that the interests of the state, the United States and petitioner would be served by so doing; that prosecution by the U.S. Attorney shall be deferred in favor of prosecution by the state provided petitioner abides by the agreement; that should petitioner violate any conditions of the agreement he may be prosecuted for any offense; that if petitioner fulfills the terms of the agreement, the U.S. Attorney will not prosecute him for any offense. The third page discusses that he will plead guilty to state charges of solicitation of prostitution and solicitation of minors to engage in prostitution and be registered as a sex offender; he will agree to a county jail sentence of 18 months for the two charges followed by 12 months 3 EFTA00184087 community control; the state judge must approve the sentence; the agreement does not preclude petitioner and the state attorney from agreeing to recommend additional charges or additional terms of probation or incarceration; petitioner waives his rights; petitioner shall provide the U.S. Attorney with copies of his agreements with the state attorney. Page four provides that the United States shall provide petitioner with a list of victims; the United States shall select an attorney to represent the victims; if any victims files suit based on federal claims petitioner will not contest them; he is not admitting liability by signing this agreement; that he will use his best efforts to plead guilty by a certain date. Page five provides that he will not be treated differently than any other offender as to county jail gain time; that the parties anticipate this agreement will not be made part of any public record but if there is a Freedom of information Act Request or compulsory process on the United States for this agreement, the U.S. will give petitioner notice before disclosing the agreement; that the U.S. Attorney cannot guarantee what the state attorney does; that the United States will not prosecute potential co- conspirators; that ongoing grand jury proceedings will be halted. 4 EFTA00184088 Page six provides there is consideration for the NPA and a breach allows the United States to elect to terminate it; that petitioner waives certain rights. Finally, page seven provides that petitioner has read the agreement and understands it. Where is there a single confidential term, provision, sentence or word in the NPA the disclosure of which will cause petitioner irreparable harm? The answer is there is none. Will it cause petitioner irreparable harm for the public to learn that he and the U.S. Attorney agreed he will be sentenced in state court to a mere 18 months county jail time (in his home county, not a prison, with all the usual gain time and work release benefits not available in the state prison system, so he serves about 60% of the sentence) plus 12 months non-sexual offender community control, for solicitation of a minor to engage in prostitution, a second degree felony punishable by up to 15 years in prison, and felony solicitation of prostitution, a third degree felony punishable by up to 5 years in prison? Will it cause petitioner irreparable harm for the public to learn that if petitioner fulfills the terms of the agreement, the U.S. Attorney will not 5 EFTA00184089 prosecute him for a single federal crime he committed against multiple minor female victims? Will it cause petitioner irreparable harm for the public to learn the state attorney will only prosecute him for just two of his crimes involving only just two of his minor female victims and that he does not face any further state prosecution for all his other crimes against the many more minor female victims identified by the U.S. Attorney? Will it cause petitioner irreparable harm for the public to know that the other participants in his criminal enterprise for procuring minor females to engage in prostitution, co-conspirators MIS Lesley Groff and =Ma will not be prosecuted at all? Will it cause petitioner irreparable harm for the public to learn that an attorney will be appointed to represent his other minor female victims in civil lawsuits; that, if they bring only a single specified federal cause of action, he will not contest, but not admit, liability, but if they bring other causes of action such as battery or intentional infliction of emotional distress, he can defend in any manner he choices? Will it cause petitioner irreparable harm for the public to know that the U.S. Attorney and the state attorney have utterly compromised their roles 6 EFTA00184090 as prosecutors and protectors of the public safety by entering into this sweetheart deal with petitioner? As in the old Wendy's commercial, "Where's the beef?" b. The parties to the NPA did not agree it would be confidential; in fact, the United States agreed the NPA would be publicly disclosed if a Freedom of Information Act Request or compulsory process were made to disclose it. There is nothing in the record to support petitioner's assertion that the parties agreed to confidentiality. Petitioner has not proven by any evidence extrinsic to the NPA that it was intended to be confidential. The wording of the NPA, moreover, does not show it was intended by both parties to be confidential. The NPA on its face does not state anywhere that it is confidential. The word "confidential" does not appear in it. There is not a single term, provision, sentence or word in it where both parties affirmatively agree to keep it confidential. The term "confidential" essentially means that something is "meant to be kept secret." Black's law dictionary (81" ed. 2004). The NPA does not contain an expression of this intent. In fact, the parties to it expressly agree to the contrary: that the United States will disclose the NPA if a Freedom of Information Act Request or compulsory process is made to disclose it: 7 EFTA00184091 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. (NPA, paragraph 13(emphasis added.) The first sentence of the above quote does no more than state an expectation by both sides that they do not anticipate the document being made part of a public record, i.e., not filed in federal court. At most it states merely an intent that neither side will take affirmative steps to make place it in a public record. But that is not a provision that the document is confidential or that it will be kept confidential. In the same paragraph, the United States agrees to disclose the NPA if a Freedom of Information Act Request or compulsory process for the document is made. In fact, with all the hearings held in state court to the present on this issue, the United States, which was always noticed, has not once intervened in state court to request that the document remain sealed. A representative of the U.S. Attorney's office has not even appeared at any of the hearings before the trial judge below on this issue. Moreover, at the plea colloquy, representatives of the United States were present and did not object to the 8 EFTA00184092 terms of the agreement being discussed on the record or being placed in the state court file (see below).2 Also, the text of the NPA quote above (par. 13) shows that petitioner's arguments based on the supremacy clause and the doctrine of secrecy of grand jury proceedings are wholly without merit. Can these arguments have any conceivable validity if the U.S. Attorney agreed to publicly disclose the NPA if there were a Freedom of Information Act Request or compulsory service of process? There should be no serious consideration given to petitioner's contention that the U.S. Attorney intended to look to petitioner to protect the rights of the United States under the supremacy clause or to protect the sanctity of the doctrine of federal grand jury secrecy. This is but another smoke-screen. c. Petitioner himself and the state prosecutor already publicly disclosed the contents of the NPA ("the cat's already out of the bag"). At the plea colloquy (A-8), with representatives of the U.S. Attorney present, petitioner's attorney and the prosecutor disclosed on the record, in public, the essential terms of the NPA. After the trial judge cautioned 2 It was noted on the record that representatives of the U.S. Attorney were present in court. A-8, page 39, lines 22-23. 9 EFTA00184093 counsel that any sidebar conversation would be on the record, the following exchange occurred: MR. GOLDBERGER [petitioner's counsel]: The reason why I asked to come sidebar is there is a nonprosecution agreement with the United States Attorney's office that triggers as a result of the plea agreement. In other words, they have signed off and said they will not prosecute Mr. Epstein in the Southern District of Florida for any offense upon his successful [sic] taking of this plea today. That is a confidential document that the parties have agreed to. I wanted to tell the court. THE COURT: I understand, that would also be invalidated should he violate community control? MR. GOLDBERGER: Absolutely. That nonprosecution agreement — MS. [the state prosecutor]: They spell all that out. THE COURT: Mr. Epstein needs to come closer. Mr. Epstein, your attorney has told me that in addition to everything, we talked about another inducement, shall we say, to your taking this plea is that the U.S. Attorney for the Southern District of the State of Florida, federal prosecutor, has agreed to a nonprosecution agreement with you, meaning that if you successfully complete probation and do everything you're supposed to, they have, have agreed not to prosecute you federally, did you understand that? THE PETITIONER: Yes, ma'am. (A-8, pages 38-39Xemphasis added). We can see from the page-by-page review of the NPA (section 2a. above) that the other provisions of the NPA are incidental to the highlighted quotations. The substance of the NPA is the publicly disclosed provision that the U.S. Attorney will not prosecute petitioner for any federal offense 10 EFTA00184094 upon his pleading guilty to the two state crimes and agreeing to the sentence discussed in the plea colloquy. CONLUSION For the reasons stated above, it is respectfully requested that the petition for certiorari be dismissed for lack of jurisdiction. I HEREBY CERTIFY that a copy of the foregoing has been served by mail on the parties listed below this day of July, 2009. I HEREBY CERTIFY that the foregoing is submitted in Times New Roman 14-point font and complies with the font requirement of Rule 9.100. ROTHSTEIN AggENFELDT ADLER Attorneys for 115 401 East Las Olas Blvd., Suite 1650 Fort LauderliS* 301 Telephon Telecop 54) 527M663 By: SERVICE LIST Kreusler-Walsh, Compiani & Vargas, P.A. 501 South Flagler Drive, Suite 503 West Palm Beach, Fl 33401-5913 11 EFTA00184095 Robert D. Critton Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, Fl 33401 Jack A. Goldberger Atterbury, Goldberger, & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, Fl 33401 U.S. Attorney's Office-Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, Fl 33401 Honorable Jeffrey Colbath Palm Beach County Courthouse 205 North Dixie Highway Room 11F West Palm Beach. Fl 33401 12 EFTA00184096