EFTA00204963.pdf

Page 1 THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA IN RE: JANE DOE, Plaintiff, vs. UNITED STATES OF AMERICA, Defendant. / Federal Courthouse West Palm Beach, Florida July 11, 2008 10:15 a.m. The above entitled matter came on for Emergency Petitioner for Enforcement of Crime Victim Rights before the Honorable Kenneth A. Marra, pursuant to Notice, taken before Victoria Aiello, Court Reporter, pages 1-32. For the Plaintiff: Bradley Edwards, Esquire For the Defendant: OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204963 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 2 (Call toOrder of the Court). THE COURT: Good morning. Please be seated. This is the case of In Re: Jane Doe, Case Number 08-80736-Civ-Marra. May I have counsel state their appearances, please? MR. LEE: Good morning, Your Honor. May it please the Court, for the United States of America, we have , Assistant United States Attorney and Dexter Lee, Assistant United States Attorney. And we have seated in the front row FBI Special Agent Becker Kendall and Jason Richards. Thank you, Your Honor. MR. EDWARDS: Good morning, Your Honor. Brad Edwards on behalf of the petitioners. Petitioners are also in the courtroom today. This petition is styled on her behalf. THE COURT: Good morning. All right. We're here on the petitioner's motion to enforce her rights as a victim under 18 USC 3771. I have received the petition, the government's response and the victim's reply, which was filed, I guess, this morning. So, You want to proceed, counsel?. MR. EDWARDS: Yes, Your Honor. You prefer me at the podium? THE COURT: It is easier for us to hear you. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204964 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 MR. EDWARDS: Your Honor, as a factual background, Mr. Epstein is a billionaire that sexually abused and molested dozens and dozens of girls between the ages of 13 and 17 years old. And through cooperating victims, that evidence can be proven. Because of his deviant appetite for young girls, combined with his extraordinary wealth and power, he may just be the most dangerous sexual predator in U.S. history. This petitioner is one of the victims and she is in attendance today. Another one of Mr. Epstein's victims is also in attendance today. She would be able to provide evidence that she provided-- that Mr. Epstein paid her to provide him over 50 girls for the purposes of him to sexually abuse. Therefore, the undercurrents of the petition are clear. The plea bargain that was worked out for Mr. Epstein in light of the offenses that he committed is clearly unfair to the point that if anybody looks at the information, it is unconscionable. THE COURT: Well, I mean, is that for me? That's not my role. That's the prosecutor's role to apply, would it not? I can't force them to bring criminal charges. What do I have to do with that. MR. EDWARDS: Okay. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204965 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 THE COURT: That may be your opinion, that may be your client's opinion, but I presume that the government is aware that that's your client's opinion. How does that change anything? MR. EDWARDS: That's my problem. I'm not sure that the government is aware that is petitioner's opinion and that's why we're here today, just to enforce the victim's rights under 18 USC 3771, Crime Victims Rights Act, and all we are asking is to order that the plea agreement that has been negotiated in this case-- THE COURT: How do you know there is a plea agreement? The plea agreement is with the State of Florida, wasn't it? MR. EDWARDS: There was a state charge with one victim that I'm aware of. And the plea agreement as to that one victim was 18 months in the county jail. But along with that, the Palm Beach County Sheriff investigating this case was getting no action out of the local authorities and sent this to the FBI. THE COURT: It was actually the Palm Beach-- Town of Palm Beach Police, not the Sheriff's Office. MR. EDWARDS: I'm sorry, Judge. And that's OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204966 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 why the FBI got involved because Michael Feeter wrote a scathing letter to the State Attorney about Mr. Epstein receiving preferencial treatment by local authorities. Before the FBI took the case, they went behind the victim's back, and this is our motion, without the victim's input and allowing her the right to meaningfully confer with the government, which is a right that she can assert at this time. They worked out a plea deal where if Mr. Epstein would plead to this other charge regarding another victim in the state court case, they would agree to not prosecute him for all of the federal charges of what they were aware of in federal court.. THE COURT: So that's already apparently taken place, correct? MR. EDWARDS: I don't know if it has taken place. I'm not sure exactly what stage it is in. I know it is supposed to be attached at some point in time to a state court plea. THE COURT: Hasn't he already plead guilty, though? MR. EDWARDS: If he did plead guilty, it is my understanding and belief that the agreement with the federal government and with the U.S. Attorney's OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204967 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 Office wasn't signed on that day. So it is still my belief, I could be wrong, but that that agreement hasn't been completed as of this time. THE COURT: So let's assume it hasn't been completed. MR. EDWARDS: Okay. Then petitioner would like the right to confer with-- THE COURT: You can go in the conference room. We've got the FBI agents, you've got the assigned prosecuting attorney. You have got a conference room. You've got your client. Go and talk. Confer. And then it is up government to decide what to do, correct? MR. EDWARDS: In a way, Your Honor, that's very similar to what happened in In Re: Dean and PB case where there is a plea agreement negotiated and then the victim gets the right to confer. THE COURT: It's already negotiated. What am I supposed to do? MR. EDWARDS: Order that the agreement that was negotiated is invalid and it is illegal as it did not pertain to the rights of the victim. THE COURT: I can order you into the conference room. Then the government can do what it chooses. It can agree to prosecute or it can agree OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204968 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 7 to going forward with the agreement it had already reached and after consulting your client and in taking into consideration your client's views, decide to go forward anyway. I can't make them prosecute him. I can't-- All I can do is, at best, say confer with the victim, consider the victim's input before you make a decision or reconsider the decision you already made in view of the victim's input, if it is possible for you to do that. So if I invalidate the agreement, what's the best you can get? The right to confer? MR. EDWARDS: Exactly. That is all we can. THE COURT: So why can't you go into the conference room now, take as much time as you feel you need and confer? MR. EDWARDS: Judge, at this time I'd like to move ore tenus to add the victim that's in the courtroom to this conference with the U.S. Attorney's Office. THE COURT: So is that Jane Doe 2 for purposes of this? MR. EDWARDS: Exactly, Your Honor. THE COURT: All right. Let me hear from the government then. MR. LEE:. Good morning, Your Honor. May it OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204969 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 8 please the Court. Let me update the Court on the status of various matters. The agreement to defer prosecution to the State of Florida was signed and completed by December of 2007. Mr. Epstein's attorneys saught a higher review within the Department of Justice and it took a number of months for that to come to fruition. When it came to fruition, he ended up pleading guilty on June 30, 2008 to two charges in state court, and he was sentenced to a term of incarceration of 18 months, with another 12 months of community control after the completion of his sentence, and he is currently incarcerated as we speak. We have two arguments, Your Honor. First, insofar as the right that they claim under 3771(a) (5), their right to confer in the case, we respectfully submit that there was no case in federal court and, indeed, none was contemplated if the plea agreement was to be successfully completed, since it contemplated the State of Florida sentence on the criminal charges. So as long as certain conditions were met and certain federal interests were vindicated, the federal government was satisfied that this was an appropriate disposition. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204970 Page 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Insofar as the best effort, Your Honor, we have cited the Attorney General's guidelines. The guidelines do say that you should normally advise victims of plea negotiations and the terms of the plea, but they recognize that there are times when they may not be appropriate or could cause some harm or prejudice, and they set out six factors which are to be considered, non-exhaustive factors. We have advised, in the declaration of Villafana that when the subject of having Mr. Epstein concede that he would be convicted of an enumerated offense for purposes of a cause of action under 18 USC 2255, there was a rather strenuous objection from Mr. Epstein's counsel that the federal government was inducing some effort to either fabricate claims, enhance claims or embellish claims and if this agreement ultimately could not be consumated, then we'd have a federal prosecution on our hands, and we did not want to be in a positin of creating additional impeachment material. I can't say that the stand by Mr. Edwards that the arguments of inducement in a subsequent civil action can be made by any criminal victim, that is true. It is another thing for that inducement to have come before the prosecution OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204971 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 10 arguing about the credibility and veracity of the individual. That was a considerably strong point, in essence, in not discussing those terms with the victims as might ordinarily be done if those considerations did not exist. So, first, Your Honor, we believe that 3771(a)(5) does not apply. THE COURT: Well, what about the language in the statute that suggests that a victim can bring a claim or seek enforcement of his or her rights under the statute before a case is filed? What does that refer to? MR. LEE: Your Honor, we believe that's a venue provision essentially telling an individual if there is no exigent case, there is no case of United States versus So And So, then you seek to enforce your rights, then you can go in and do so in the did court where the offense occurred. This is not saying, necessarily, that rights exist, but if you believe they exist, here is the place where you're going to have to lodge it, and the Court will have to decide. Now, there are certain of the eight rights accorded in 3771(a) that could come up before any charge is filed. For instance, let's say somebody OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204972 Page 11 believes that the perpetrator of the crime is going to try to 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 harm them or threatened them or intimidated them into not testifying or cooperating with the government and, of course, no indictment has been returned. If an individual went to the government and believed that the individual had not acted appropriately, they can go to the district court and say I need to have my rights under 3771(a)(1) enforced because those people are threatening me, and the government hasn't done enough. That would be a situation. But we're talking really here about (a) (5), which is the right to consult in the case and we respectfully submit that there is not case until a charge has been filed. THE COURT: So, what about the circuit case that was actually pending case had to do with a plea agreement in a pending case? MR. LEE: Yes. The distinction between the Dean case and the instant case, Your Honor, is this. In Dean, they had negotiated with BP Petroleum for a plea and it was always contemplated that there was going to be a federal prosecution. The distinction in this case was that there was already a pending state prosecution and the OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204973 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 12 objective for both sides was to keep it in state court and the federal government's objective was to ensure that there were sufficient safeguards in the state court proceedings and concessions made by Mr. Epstein so that federal interests, particularly a cause of action for damages for the victims of the sexual exploitation could be preserved. So that's the key distinction because there was no federal case, there was no federal criminal charge contemplate so long as the agreement could be reached. THE COURT: All right. So they want me to invalidate your non-prosecution agreement. MR. LEE: Your Honor, we respectfully submit that 3771 does not grant authority of this Court to do so. In the Dean case, for instance, Your Honor, there was a plea agreement that was entered into and district court, of course, entertained a plea agreement and exercised its judicial discretion in terms of whether to accept it or not. The victims were encouraged to go to district court and say, you know, we didn't hear about this. We should have, and we object to it for the following reasons. The district court take that into account. There is no plea agreement before this Court. There will be no OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204974 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 plea proceedings in this court. That was all done in state court several weeks ago. So that's another basis for distinguishing Dean. THE COURT: All right. So is there any point in conferring with these victims? MR. LEE: Your Honor, I will always confer, sit down with Jane Doe 1 and 2, with the two agents and . We'll be happy to sit down with them. THE COURT: But it wouldn't make any difference in terms of the outcome. Would maybe give them the benefit of your explanation of why you did what you did and why you came to the conclusion you did, but it is not going to change your decision in any way. MR. LEE: If it is going to change, it would have to be done at a level higher than mine, Your Honor. THE COURT: What was-- I didn't understand your statement earlier that Mr. Epstein wanted some kind of review of higher authority within the Department in terms of whether or not the federal government was going to insist on preserving any civil claims. MR. LEE: Your Honor, of the agreement was OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204975 Page 14 consumated by the parties in December of 2007. Mr. Epstein's 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 attorneys wanted a further review of the agreement higher up within the Department of Justice and they exercised their ability to do that. THE COURT: Meaning? Again, I'm trying to understand. He wasn't happy with the agreement that he had signed? MR. LEE: Basically, yes. And was trying to maintain that the agreement should be set aside or more favorable terms. THE COURT: Now, in terms of -- You don't dispute that Jane Doe 1 and 2-- First of all, do you have an objection to Jane Doe 2 being added as a petitioner in this case? MR. LEE: No, I don't. THE COURT: I'll grant that request. You don't dispute that they're victims within the meaning of the Act. MR. LEE: It depends to which -- There is one Jane Doe-- Well, there is one individual who is one of Mr. Edwards' clients who we do not believe to been a victim. If these are SN and CW, then we have no objection and I can discuss-- If I may have a moment, Your Honor. Your Honor, thank you. I have been OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204976 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 15 corrected. We have no objection. THE COURT: Okay. MR. LEE: We agree they're victims. THE COURT: Now, what is your position, then, regarding the right of a victim of a crime that is potentially subject to federal prosecution to be, to have input with the prosecutor, your office, before a resolution or decision not to prosecute is made? Do you say that there is no right to confer under those circumstances because there is no "case pending" so any decision not to prosecute, there is no right to confer but that right to confer only is triggered once there is an indictment or an information filed? MR. LEE: That is correct, Your Honor. The Attorney General guidelines which were published in May of 2005 provide that the rights in 3771(a)(1 through 8) accrue when a charge is filed in federal court. Now, that my change after the Dean decision. It is under consideration. But that's the government's position. THE COURT: All right. And so -- Are you saying all of the rights-- MR. LEE: Your Honor, some of the rights clearly will only pertain after a charge has been OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204977 Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 filed. The one that pertains to notice of public hearing, public proceedings, though, can't apply until there are public proceedings to be had. Of course, these guidelines are a floor and not a ceiling. They're to be applied with common sense. If somebody-- If charges of assault were being investigated and somebody would come in and say the perpetrator whom you're investigating is getting ready to indict has been threatening me, following me, and I need help because he or she is going to do something bad to me and try to take care of me before I can testify in the grand jury, this person would not be turned away because a charge hasn't been filed yet. Those guidelines would be applied with common sense. But specifically insofar as a (a) (5), which is the right to consult with the attorney for the government in the case, that would not accrue until there is a days. And, in our view, a case doesn't come into being until charges are filed. THE COURT: And are there any reported decisions that you are aware of where any court has found a right to confer before charges are filed? MR. LEE: I'm not aware of any, Your Honor. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204978 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 17 THE COURT: All right. Thank you. MR. LEE: Thank you, Your Honor. THE COURT: Counsel? MR. EDWARDS: I would just like to address that Dean decision. They're asking you that you just simply ignore it because the decision clearly was a decision made because as it is a direct result of a plea deal being worked out prior to the victims being able to speak. THE COURT: But there was a pending case, though, correct? MR. EDWARDS: As I understand the decision-- THE COURT: As I understand the plea deal, it was negotiated prior to charges being filed. Then there was a filed case and then the court had the ability to accept the plea or not. And at that point, you would have the ability to entertain or assert an objection because you weren't consulted about the plea. So there was a proceeding or case in which you can assert a right to confer. How do you do that before a case is filed? How do you enforce the government or force the government to consult about not filing a case? Every case they have to consult with the victim before they decide not to prosecute? OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204979 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 18 MR. EDWARDS: No, there are limitations. I think in my reply I refer to the case of U.S. I. Rubin where they discussed that very scenario stating there at least has to be criminal charges contemplate by the government before these rights kick in. The rights under (d)(3) and (a)(5), the right to confer and the Dean case clearly states clearly rights under the CBRA apply before prosecution is under way. Logically, this includes the CBRA establishments of a victim's reasonable right to confer with the attorney for the government. And, that's read in the plain reading of the statutes as well. This first case in interpreting it, I think it's pretty clear the distinction they're making between BP and this case. Is it a distinction withoug a real difference in that the court is saying you have this right before the case is filed which is exactly what we are saying. And the result in that case was they filed the case, later let him plea out to some sweet deal. And in this case, what we have is they avoid that by deciding not to file. Either way, you deprive the victim of their right before making that decision. And the main problem that the court had in OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204980 Page 19 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dean, as it states, the victims do have rights when there is an impact and the eventual sent is substantially less. Whereas here, their input is received after the parties have reached a tentative deal. Well, the government just stated the deal was reached back in October of 2007. However, attached to their response is a letter to my client petitioner, dated January 10, 2008, after the time then counsel just put on the record that the deal was already finalized and it starts, the opening paragraph talks about whether they wanted the victims to have the right to confer. It says, this case is currently under investigation. This is January 2008. This case has been a lengthy process and we request your continued patience while we conduct a thorough investigation. Sounds like the exact opposite of, we want you to come in and confer and let us know what you really feel about this. That is our biggest problem with what has happened here, is that she just wasn't given a voice and if somebody would have heard her, we believe there would have been a different outcome. To go back into a room right now and talk, after there has already been a plea negotiated without Your Honor ordering that in this case the plea deal needs to be OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204981 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 20 vacated, it is illegal and give her her rights. THE COURT: Well, would you agree or not that Mr. Epstein plead guilty to the state charges probably at least, in part, in reliance upon the fact that he had an agreement with the federal government they weren't going to prosecute? Would you concede that or would would present evidence to that effect? MR. EDWARDS: Of course we would. Yes, of course. Sure. THE COURT: So you agree that Mr. Epstein is now sitting in the Palm Beach County Jail a convicted felon serving 18 months of imprisonment, at least in material part, because he relied upon the government's non-prosecution agreement? MR. EDWARDS: Yes. I agree that he is sitting there because he is guilty and maybe he took the plea rather than going to trial and being found guilty later in part because of this non-prosecution agreement that was worked out behind the other victims' backs. I would agree with that. THE COURT: So he accepted the State's deal in part because he knew he had an agreement from the federal government that they weren't going to prosecute. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204982 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 21 MR. EDWARDS: I presume. I speculate that is true. THE COURT: So you want me now, then, to set aside the government's agreement with him because there was no conferring, yet he has already accepted a plea agreement and is sitting in custody, in part, in reliance on that agreement. I mean, I can undo the agreement in your theory, but how do I-- Mr. Epstein, in a sense, would then be adversely affected by my actions when he acted in reliance upon the agreement. How does that work? MR. EDWARDS: Certainly, we're only asking you to vacate the agreement. I understand and your point is well taken. And I believe that at that point in time his rights may kick in and say, wait, I was relying on this other deal so I wouldn't be prosecuted for these hundreds of other girls that I molested; that I plead guilty over here to the one girl that I will admit to molesting. So maybe I can get to withdraw my plea. But the last thing he wants to do because if he ends up going to trial, I'll be in prison for the rest of his life like any other person who ever did this crime would be. He could have that argument, I guess, but still wouldn't really work well for him. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204983 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 22 THE COURT: All right. So you still think I should set aside the agreement, require the government to confer? MR. EDWARDS: Work out a plea negotiation commensorate with the crimes that he committed and that are favorable after they confer with the victims. And it is within their discretion. Of course, they can decide on their own that, hey, I think that the agreement was fair after they have talked with the victims. That could happen. I don't know if a reasonable person that would do that, but it could happen. THE COURT: Apparently, you are not suggesting that that these person are not reasonable. MR. EDWARDS: I'm suggesting they haven't conferred with the victims and that if they took into consideration what these two in the courtroom have to say, I don't think that we'd be in this same position right now. THE COURT: They have never spoken to your client about what happened to them? MR. EDWARDS: They have spoken to them about what happened. Maybe not about what the girls wanted to happen as a result of this case, which is OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204984 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 part of conferring to decide that these girls wanted money on their own, which is basically what this-- this non-prosecution agreement entails that has language that he'll agree to liability in a civil case. That's not what these girls-- They want justice. They want him in prison now more than ever. The reason they stated they kept this agreement from the girls and they basically conceded we didn't tell the girls about this agreement, well, the reason is because they would have objected and they wouldn't have been able to sign off on this and the victims would have had a voice, and we'd still been going through litigation. The exact problem they tried to prevent, at least in their terms which was the impeachment of these girls at a later trial, is still available to anybody once the civil suits are filed anyway. They have three arguments. One, we didn't have to talk to them. Two, we did talk to them sort of. And if you don't buy that, the reason we didn't talk to them, we were trying to prevent them from being impeached later. None of them trump the victims' rights to confer prior to plea negotiations. That's why, Your Honor, we would ask this Court to enter an order vacating that previous OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204985 Page 24 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 plea agreement as illegal, ask them to confer with the victims once again or for the first time and work out a negotiated plea to that accord. THE COURT: Well, all you can ask them to do is confer. I can't ask them to do anything beyond that. I mean, it is up to them to negotiate. MR. EDWARDS: I wouldn't quarrel with that. THE COURT: Now, having learned today, I guess, that the agreement was signed when, in October? MR. EDWARDS: October 2007, I heard. THE COURT: About eight or nine months ago, is there any need to rush to a decision in this matter? The decision has already been made. You filed this, I think, on the presumption that the agreement was about to take place and you wanted to be able to confer beforehand and you weren't sure what was going on. MR. EDWARDS: Precisely, Your Honor. And I'm holding the letters that are exhibits that they were writing to my client during the year of 2008 telling her how lengthy of a process this was going to be and be patient. So, right, I was completely in the dark about when this agreement was signed. THE COURT: In view of the fact that this OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204986 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 25 agreement has already been consumated, and you want me to set it aside, as opposed to something that's about to occur, would you agree that-- and I have done this very quickly because of the petition and your allegation that something was about to happen. I'm not blaming you. MR. EDWARDS: I was mistaken. THE COURT: I'm not blaming you for doing that. In view of what you know now, is there any need to treat this as an emergency that has to be decided by tomorrow? MR. EDWARDS: I can't think of any reason in light of what we just heard. THE COURT: Mr. Lee, do you have anything else you wanted to add? Does either side think I need to take evidence about anything? If I do, since this is not an emergency anymore, I can probably find a more convenient time to do that. I don't have the time today to take evidence. But if you do believe that I should take evidence on this issue. MR. EDWARDS: It may be best if I conferred with the U.S. Attorney's Office on that and we can make a decision whether it is necessary or whether Your Honor deemed it was necessary for you to make a OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204987 Page 26 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decision. THE COURT: I want to know what your respective positions are because it may be something in terms of having a complete record, and this is going to be an issue that's it going to go to the Eleventh Circuit, may be better to have a complete record as to what your position is and the government's is as to what actions were taken. And I don't know if I have enough information, based on affidavit or I need additional information. And because it is not an emergency, I don't have to do something quickly, we can play it be ear and make this into a more complete record for the court of appeals. MR. EDWARDS: If there is a time where it is necessary to take evidence, Your Honor is correct in stating that it is not an emergency and it doesn't need to happen today. And, I will confer with the government on this and if evidence needs to be taken, it be taken at a later date. It doesn't seem like there will be any prejudice to any party. THE COURT: Mr. Lee, do you have any thoughts? You want to consult with Mr. Edwards? MR. LEE: There may be a couple of factual matters that I need to chat with petitioner's OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204988 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 27 counsel on. If we can reach agreement on those as to what was communicated to CW and what time, if they don't dispute that, then we don't think it will be necessary to have an evidentiary hearing. But if we can agree, fine or maybe we can't. We'll talk about it. THE COURT: All right. So why don't you let me know if you think an evidentiary hearing is necessary. If there are additional stipulations you want to enter into or supplement what has already been presented, you can do that. Now, the other issue I want to take up, though, is the government filed its response to the petition under seal. And so I want to know why. What is in there that at this point needs to be under seal? Is there anything in there that's confidential, privileged, anything that's different from what you hve said here in open court that requires that to be sealed? MR. LEE: Well, Your Honor, on our motion to seal was based on two reasons. One that dealt with individuals or minors at the time that the offense occurred. So we were attempting to protect the privacy of those individuals. And also it dealt with negotiations with Mr. Epstein which were in the OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204989 Page 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 nature of plea negotiations, which we treat as confidential. Normally, they're not aired out in open court. So those were our two reasons. THE COURT: All right. But I guess the letters you attached only related to Mr. Edwards' client. MR. LEE: Three of them, yes, Your Honor. THE COURT: Are you prepared, Mr. Edwards, to waive any issues regarding the release of those documents that relate to your clients? MR. EDWARDS: Judge, I think it would be appropriate to redact the names of the clients as they have done. THE COURT: I don't think the names are in there. MR. EDWARDS: I think they're redacted. They're blacked out. I have no problem with releasing those documents. I'm not sure that's part of the deal. But if it is-- MR. LEE: It is. MR. EDWARDS: Okay. I'll waive. THE COURT: You really don't have any objection to those letters that were sent to them being released to the public? MR. EDWARDS: Of course not, Judge. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204990 Page 29 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Then what is there about the plea agreement or the negotiations that is in the response that we really haven't already kind of-- MR. LEE: Your Honor, there was a confidentiality agreement in the deferral of prosecution to the State of Florida. So we were trying to maintain the confidentiality of the negotiations that occurred since we had discussions during those negotiations as one of the reasons why we decided not to tell all of the individuals what was going on. THE COURT: But is that still necessary, that confidentiality or is that kind of moot at this point? MR. LEE: Well, we would like it sealed. Admittedly, what happened today in open court has probably weakened our argument. I don't dispute that. THE COURT: In your opinion, anything in particular, any paragraph in the response or in Ms. Villafana's affidavit that you think is particularly troublesome that should remain under seal? MR. LEE: May I have a moment, Your Honor? THE COURT: Yes. MR. LEE: Thank you. Your Honor, one aspect OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204991 Page 30 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of this in the notification letters that were dispatched to individuals which were attached to Ms. Villafana's declaration, there is a citation to a clause in the agreement that was reached regarding the damages remedy under 18 USC 2255 that was subject to the constitutionality agreement, we believe that should still remain confidential. THE COURT: But hasn't the fact that this provision was part of the agreement again been aired? Is there any secret to it anymore? MR. LEE: The actual text of it has not been aired. The existence of it has been heard but the actual text has not and we believe it should still remain confidential. THE COURT: Okay. Any other argument on that issue? MR. LEE: No, Your Honor. Thank you. THE COURT: wants to speak to you. MR. LEE: Your Honor, one item that I'd like to bring to the Court's attention. We had advised Mr. Epstein and his attorneys that if we were to dislose some of the agreement, we would give them advance notice and ability to lodge an objection. We would like an opportunity to do that. OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204992 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 31 THE COURT: All right. But you're not disclosing. It would be by my order that it would be disclosed. MR. LEE: Yes, Your Honor. And we just would like to register that we believe it should remain confidential. THE COURT: All right. MR. EDWARDS: Your Honor, I don't see any authority for keeping that under seal. THE COURT: I agree. The fact that there is this preserved right on behalf of the victims to pursue a civil action is already a matter of public record; the exact text of the clause-- I don't see that disclosing the text of the clause when the fact that the clause exists is already a matter of public record. It is not harmful in any way to Mr. Epstein or the government and the letters to the victim that the victim can disclose those letters, they're not under any confidentiality obligation or restriction and they're free to disclose it themselves if they choose to. So I don't see that there is any real public necessity to keep the response sealed in view of what we discussed already on the record and the victim's ability to disclose those provisions of their own choosing, if they wish. So, in view of OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204993 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 32 the public policy that matters filed in court proceedings should be open to the public and sealing should only occur in circumstances that justife the need to restrict public access, I'm going to deny the motion to seal the response and allow that to be viewed. All right. So I'll let both of you confer about whether there is a need for any additional evidence to be presented. Let me know one way or the other. If there is, we'll schedule a hearing. If there isn't and you want to submit some additional stipulated information, do that, and then I'll take care of this in due course. MR. EDWARDS: Thank you, Your Honor. THE COURT: All right. MR. LEE: Thank you, Your Honor. : Thank you, Your Honor. THE COURT: You're welcome. (Proceedings concluded.) OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204994 1 2 3 4 5 6 7 8 9 10 11 12 13 Page 33 I hereby certify that the foregoing is true and correct to the best of my ability. Victoria Aiello, Court Reporter OFFICIAL REPORTING SERVICES, LLC (954) 467-8204 EFTA00204995