EFTA00210894.pdf

Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 1 of 14 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 08-80736-CIV-MARRA JANE DOE #1 and JANE DOE #2, Petitioners, vs. UNITED STATES OF AMERICA, Respondent. RESPONDENT'S OPPOSITION TO JANE DOE #3 AND JANE DOE #4'S CORRECTED MOTION PURSUANT TO RULE 21 FOR JOINDER IN ACTION Respondent United States, by and through its undersigned counsel, files its Opposition to Jane Doe #3 and Jane Doe #4's Corrected Motion pursuant to Rule 21 for Joinder in Action (D.E. 280), and states: I. PETITIONERS' MOTION TO ADD TWO ADDITIONAL PARTIES SHOULD BE DENIED AS UNTIMELY This action was commenced by Jane Doe #1 on July 7, 2008 (D.E. I). The Court ordered the Government to file a response by July 9, 2008, which was done. On July 11, 2008, the Court held a hearing on the emergency petition. At that hearing, Jane Doe #2 was added to the petition. Now, over six years into the litigation, petitioners want to add two new petitioners. Petitioners' motion should be denied because it is untimely. Petitioners seek to add two new petitioners to the case, whom they claim are victims. D.E. 280 at 1. They incorrectly invoke Fed.R.Civ.P. 21 as the basis for their motion. If this were a true civil action, then the addition of new parties would be governed by Fed.R.Civ.P. 15. Brainard'. American Skandia Life Assurance Corp. 432 F.3d 655, 666 (6th Cir. 2005)• Bell EFTA00210894 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 2 of 14 City of Topeka, Kansas, 279 Fed.Appx. 689, 691-92 (10'h Cir. 2008); and Hinson Norwest Financial South Carolina, Inc., 239 F.3d 611, 618 (4th Cir. 2001). These CVRA proceedings, however, are ancillary criminal proceedings. See Fed.R.Crim.P. 60, Advisory Committee Note (2008 Adoption)(` This rule implements several provisions of the Crime Victims' Rights Act, codified at 18 U.S.C. § 3771, in judicial proceedings in the federal courts."), and the Rules of Criminal Procedure do not contemplate or permit any addition of parties such as petitioners seek. To the extent that this Court nonetheless treats these CVRA proceedings as akin to a civil action, the amendment of a pleading to add parties to an ongoing proceeding would be governed by Fed.R.Civ.P. 15, and the futility of adding the § 3771 claims of Jane Doe #3 and Jane Doe #4 would preclude such amendment. A. The Untimely CVRA Claims of Jane Doe #3 and Jane Doe #4 Are Barred by 18 U.S.C. § 3771(d) Section 377I(d) of Title 18, United States Code, provides that, "[t]he rights described in subsection (a) shall be asserted in the district court in which a defendant is being prosecuted for the crime or, if no prosecution is underway, in the district court in which the crime occurred." Since no federal criminal charge was filed against Epstein, petitioners sought relief under the second clause, by filing their emergency petition in the Southern District of Florida on July 7, 2008. Petitioners were aware that Epstein had entered his plea of guilty in the Circuit Court, Palm Beach County, Florida, on June 30, 2008. D.E. 1 at 1, 1 2. The Court held a hearing on July 11, 2008, in accordance with § 3771(d)(3)'s direction that, "[t]he district court shall take up and decide any motion asserting a victim's right forthwith." The motion was not decided by the Court because petitioners' counsel did not request such action. Hearing Transcript at 25-27. In section 3771(d)(5), entitled, "Limitation on relief," the CVRA provides that, "a victim 2 EFTA00210895 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 3 of 14 may make a motion to re-open a plea or sentence only if — (A) the victim has asserted the right to be heard before or during the proceeding at issue and such right was denied; (B) the victim petitions the court of appeals for a writ of mandamus within 14 days; and (C) in the case of a plea, the accused has not pled to the highest offense charged." Jane Doe #3 and Jane Doe #4, like Jane Doe #1 and Jane Doe #2, seek to have the non-prosecution agreement set aside, and the plea negotiations reopened. This Court, moreover, has concluded that, "[a]lthough [§ 3771(d)(5)] expressly refers to the re-opening of a `plea' or `sentence' — events falling in the post-charge stage of criminal proceedings -- ... the statute is properly interpreted impliedly to authorize a 're-opening' or setting aside of pre-charge prosecutorial agreements made in derogation of the government's CVRA conferral obligations as well." D.E. 189 at 8. Because Jane Doe #3 and Jane Doe #4, as well as Jane Doe #1 and Jane Doe #2, thus seek rescissionary relief that is authorized, if at all, pursuant to § 3771(d)(5), they are bound by § 3771(d)(5)'s limitations. They have failed, however, to comply with those time limitations. The extremely short time limits set out in § 3771(d)(3) -- the direction to district courts to "decide any motion asserting a victim's right forthwith;" the requirement that the courts of appeal decide any petition for writ of mandamus within 72 hours after the petition has been filed; and the requirement that, "Din no event shall proceedings be stayed or subject to a continuance of more than five days for purposes of enforcing this chapter," — further indicate that Congress intended that persons claiming rights under the CVRA must move with dispatch. The need to act expeditiously to enforce CVRA rights should be no less when a victim is proceeding under the second clause of § 3771(d)(3), by filing in the district court in the district where the crime occurred. On September 3, 2008, the U.S. Attorney's Office sent a letter to Jane Doe #3, notifying her that Epstein had entered guilty pleas to two violations of the Florida 3 EFTA00210896 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 4 of 14 statutes, felony solicitation of prostitution and procurement of minors to engage in prostitution. Exhibit A. The sentenced adjudged was also included. Jane Doe #3 was advised that, "[fin light of the entry of the guilty plea and sentence, the United States has agreed to defer federal prosecution in favor of this state plea and sentence, subject to certain conditions ..." Exhibit A at 1. Several conditions were listed, including the availability of a cause of action under 18 U.S.C. § 2255 for money damages arising out of the sexual abuse; and the selection of Robert Josefsberg, Podhurst Orseck, P.A., as an attorney who was available to represent Jane Doe #3. Significantly, Jane Doe #3 was notified of the instant litigation "between the United States and two other victims regarding the disclosure of the entire agreement between the United States and Mr. Epstein." Exhibit A at 3. In January 2009, Jane Doe #3 received the letter from the U.S. Attorney's Office, notifying her that Epstein had entered a plea of guilty in state court, and the availability of a cause of action under 18 U.S.C. § 2255 to seek compensation for the sexual abuse. On May 1, 2009, Jane Doe #3 filed her civil action against Epstein, using the Podhurst Orseck, P.A. law firm, which had been suggested to her in the September 3, 2008 letter. Exhibit B Jane Doe No. 102'. Jeffrey Epstein, Case No. 09-80656-CIV-MARRA (S.D.Fla.). In her complaint against Epstein, Jane Doe #3 stated that she received numerous phone calls from one of Epstein's agents in 2008, repeatedly asking her if she knew anything about the civil cases against Epstein, whether she knew any of the females who were proceeding with the civil suits, whether she was planning on filing suit, whether she was communicating and/or cooperating with anyone against Epstein; and whether she would return to the United States to testify. Exhibit Bat 10-11. Plainly, Jane Doe #3 was aware, as early as 2008, that civil actions were being filed 4 EFTA00210897 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 5 of 14 against Epstein by young women, and Epstein was keenly interested in knowing whether she was going to file her own suit, and/or assist other young women who had filed their own actions. Instead of promptly asserting a claim that her rights under the CVRA were violated, she waited six years. As for Jane Doe #4, counsel for petitioners informed the Government as early as 2012 that they were representing her. If indeed her CVRA claim is the same as Jane Doe #1 and Jane Doe #2, then no additional investigation was required to determine if there was a good faith basis supporting the claim. Yet Jane Doe#4 waited over two years before asserting her claim. B. The CVRA Claims of Jane Doe #3 and Jane Doe #4 Are Barred by 28 U.S.C. § 2401(a) If petitioners' CVRA action is viewed as a civil matter, the claims of Jane Doe #3 and Jane Doe #4 are also barred by the statute of limitations in 28 U.S.C. § 2401. Section 2401(a) provides, in pertinent part: (a) Except as provided by chapter 71 of title 41, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues. The action of any person under legal disability or beyond the seas at the time the claim accrues may be commenced within three years after the disability ceases. The six-year limitations period in section 2401(a) "applies to all civil actions whether legal, equitable, or mixed." Spannaus U.S. Department of Justice 824 F.2d 52, 55 (D.C. Cir. I987)(citations omitted). Moreover, the Eleventh Circuit has recognized that, "[u]nlike an ordinary statute of limitations, § 2401(a) is a jurisdictional condition attached to the government's waiver of sovereign immunity, and as such must be strictly construed." Center for Biological Diversity I. Hamilton, 453 F.3d 1331, 1334 (11th Cir.2006), citing Spannaus, 824 F.2d at 55. Also, petitioners' contention that, because the CVRA contains no statute of 5 EFTA00210898 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 6 of 14 limitations, no period of limitations applies, is refuted by Center for Biological Diversity.' That case dealt with the interpretation of the Endangered Species Act, and in particular, 16 U.S.C. § 1540(g)(1)(C). 453 F.3d at 1334. The Eleventh Circuit held that, "[t]he Act prescribes no statute of limitations for suits against the United States, so the general six-year statute of limitations for suits against the United States applies." Id. hgt 28 U.S.C. § 2401(a), and Edwards Shalala, 64 F.3d 601, 605 (11'h Cir. 1995)(finding that section 2401(a) "sets an outside time limit on suits against the United States"). A "claim against [the] United States first accrues 'on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action.'" Izaak Walton League of America. Inc.'. Kimbell 558 F.3d 751, 759 (8th Cir. 2009)(citations omitted). A plaintiff's claim accrues, for purposes of § 2401(a), when the plaintiff "either knew, or in the exercise of reasonable diligence should have known, that [he or she] had a claim." Loudner I United States 108 F.3d 896, 900 (8th Cir. 1997). Jane Doe #3's claim under the CVRA accrued when she first became aware that a non- prosecution agreement between the U.S. Attorney's Office and Jeffrey Epstein had been negotiated without her consultation. As early as 2008, Jane Doe #3 was called by Epstein's agents, asking whether she intended to file a civil action against Epstein; whether she knew if other young women were going to file lawsuits; and whether she was going to assist them. This was several months after Jane Doe #3 had received a telephone call from the FBI and had stated that she did not want to be involved in the federal investigation. The call from Epstein's agents also followed numerous news reports regarding Epstein's criminal investigation and his plea agreement with Palm Beach County authorities. At this point, Jane Doe #3 knew that other sex Moreover, as explained above, and contrary to petitioners' contentions, § 3771(d) actually sets limitations governing motions and petitions under the CVRA. 6 EFTA00210899 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 7 of 14 abuse victims were filing lawsuits against Epstein, and Epstein's agents believed she might do the same. Exhibit A, Complaint at 10, 1 28. A reasonably diligent person would have investigated how and why, after a six year period, young women were suing Epstein, and Epstein and his agent believed Jane Doe #3 had the ability to sue Epstein also, and were concerned she might be cooperating with anyone against Epstein. Jane Doe #3 knew what Epstein had done to her, and other young girls. She knew the civil lawsuits had to be based on the sexual abuse by Epstein. In a telephone interview conducted on April 7, 2011, by Jack Scarola, Esq., representing Brad Edwards, Esq. in Epstein'. Rothstein. Edwards. and L.M. Case No. 502009CA040800XXXXMBAG (Circuit Court, Palm Beach County, Fla.), Jane Doe #3 stated she was first contacted by the FBI "in 2007 sometime." Exhibit C at 17-18.2 She was contacted by telephone by the FBI, who told her that some girls had disclosed her name, and that was how the FBI knew to contact her. Exhibit C at 17. Jane Doe #3 stated she started to answer the FBI's questions, but then she became fearful. She told the FBI she had a young family she did not want to risk, and asked the FBI not to bother her again.; Within one or two weeks after the FBI's phone call, Jane Doe #3 received a call from Epstein's attorney, and then one week later, from Epstein himself. Exhibit C at 17. This indicates Jane Doe #3 had knowledge of the criminal investigation as early as 2007. Moreover, since as early as July of 2008, a simple Internet search concerning Jeffrey Epstein would have revealed the existence of these CVRA proceedings and their underlying basis. E.g. http://articles.sun-sentinel.corn/2008-07- 12/news/0807120006_1_federal-court-plea-agreement-girls. 2 The Government has extracted five pages of the twenty-three page transcript filed on May 17, 2011, in the Circuit Court, Palm Beach County, Florida. The page references are to the page numbering in the 23-page document. 3 In accordance with the CVRA's obligation to respect Jane Doe #3's dignity and privacy, the agent complied with Jane Doe #3's wishes and did not contact her again until the matter was completed. 7 EFTA00210900 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 8 of 14 Jane Doe #3's CVRA claim is barred by § 2401(a) because more than six years has elapsed since 2008, when she knew, or in the exercise of reasonable diligence should have known, that she had a claim against the United States for violations of the CVRA. Under Fed.R.Civ.P. IS, although leave to amend shall be freely given when justice so requires, "a motion to amend may be denied on 'numerous grounds' such as 'undue delay, undue prejudice to the defendants, and futility of the amendment' Maynard'. Board of Regents of the Division of Universities of the Florida Department of Education, 342 F.3d 1281, 1286-87 (11th Cir. 2003)(citation omitted). "A proposed amendment is futile if the complaint, as amended, would be subject to dismissal." Galindo'. ARI Mutual Insurance Co. 203 F.3d 771, 777 n.I0 (11th Cir. 2000) citing Jefferson County School Dist. No. R-1 Moody's Investor's Servs.. Inc., 175 F.3d 848, 859 (10'h Cir. 1999). Jane Doe #3's CVRA claim would be subject to dismissal for lack of subject matter jurisdiction because it is barred by § 2401(a). II. PETITIONERS' MOTION TO ADD SHOULD BE DENIED BECAUSE OF THEIR UNDUE DELAY Petitioners have unduly delayed in seeking to amend their petition to add two new petitioners. As to Jane Doe #3, the Government is aware that petitioners' counsel have been representing her since at least as early as March 2011, yet they have waited more than three years to attempt to add her as a party. If Jane Doe #3's claims are similar to those being asserted by the present petitioners, as petitioners maintain in support of their motion to amend, then there is no good explanation for the delay.4 No additional time was needed to conduct an investigation to determine relevant facts, nor was additional legal research required to assert a CVRA claim on Jane Doe #3's behalf. Jane Doe #3 and Jane Doe #4 nonetheless contend that their "participation is also directly -The new victims have suffered the same violations of their rights under the Crime Victims' Rights Act (CVRA) as the current victims." D.E. 280 at t. 8 EFTA00210901 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 9 of 14 relevant to the discovery disputes pending in this case." D.E. 280 at 10. They claim that their participation "will help prove the relevancy of these [discovery] requests as well as the need for those requests." Id. This assertion does not support the joinder of Jane Doe #3 or Jane Doe #4, but instead amounts to nothing more than an admission by petitioners that the Government's objections to their discovery requests are meritorious. Whether any particular discovery request is permitted under Rule 26 is measured by the issues raised by the parties in the litigation, not issues that could be raised by parties the petitioner wishes to add. Fed.R.Civ.P. 26(b)(1)("Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of person who know of any discoverable matter.") Adding two new parties to help justify a pending discovery request is not a valid reason to amend a petition that has been pending for over six years. As to Jane Doe #4, the Government is aware that petitioners' counsel represented her as early as 2012. If Jane Doe #4 suffered the same alleged violations of her rights under the CVRA, as alleged by petitioners, then there is no good explanation for why they waited two years to attempt to add her to this lawsuit. III. THE ADDITION OF JANE DOE #3 AND JANE DOE #4 WILL PREJUDICE THE GOVERNMENT The Government disagrees with petitioners' assertion that the addition of the two new victims will not prejudice the Government. D.E. 280 at 11. Petitioners contend that so far as Jane Doe #4 is aware, "the U.S. Attorney's Office made no serious effort to locate her." D.E. 280 at 8. Further, petitioners maintain that the Government identified approximately forty separate underage, sexually abused victims, and prepared a 53-page federal indictment, knowing of the existence of victims like Jane Doe #4, who were "unidentified and not interviewed," but 9 EFTA00210902 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 10 of 14 nevertheless entered into a non-prosecution agreement with Epstein which barred prosecution of his crimes against these victims. Id. Petitioners' admission that Jane Doe #4 was unidentified and not interviewed adds two new and different issues to this lawsuit. First, there is no agreement that Jane Doe #4 is, in fact, a "victim" for purposes of the CVRA. Thus, the Court will have to engage in a separate trial over whether or not Jane Doe #4 is a "victim" who would have been entitled to any rights. The Eleventh Circuit has stated that a district court must, first, "identify the behavior constituting `commission of a Federal offense[;]' [and second, .... identify the direct and proximate effects of that behavior on parties other than the United States." In re Stewart 552 F.3d 1285, 1288 (11th Cir. 2008). "If the criminal behavior causes a party direct and proximate harmful effects, the party is a victim under the CVRA." Id. It is undisputed that Jane Doe #4 was never interviewed by the FBI or the Palm Beach Police Department as part of the initial criminal investigation, so her allegations of criminal sexual abuse, and in particular, violations of any federal criminal statute, are untested. While the petitioners suggest - using such terms as "rudimentary," "no serious effort," — that proving beyond a reasonable doubt that Jane Doe #4 was, in fact, a victim of a federal criminal offense committed by Jeffrey Epstein is a simple endeavor, the Government respectfully suggests that it is not. Second, petitioners are contending that 18 U.S.C. § 3771(a)(5) imposes a duty on the attorney for the Government in the case to consult with a victim that is not even known to the Government. Their contentions that the U.S. Attorney's Office acted "contrary to the Government's normal approach in prosecuting federal sex offenses," and "made no serious effort to locate [Jane Doe #4]," D.E. 280 at 8, clearly indicate petitioners' intention to have this Court judicially review the reasonableness of the manner in which the U.S. Attorney's Office 10 EFTA00210903 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 11 of 14 conducted its criminal investigation of Jeffrey Epstein, including the methods employed in identifying potential victims, and seeking them out for interviews.5 Any attempt to have this Court judicially review the manner in which the Epstein investigation was conducted by the U.S. Attorney's Office is precluded by 18 U.S.C. § 3771(d)(6), which provides that, "[n]othing in this chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under his direction." The Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case. United States Nixon, 418 U.S. 683, 693 (1974). "It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions." United States Cox, 342 F.2d 167, 171 (5h Cir. 1965)(en banc). Part of the prosecutorial discretion which is protected is deciding how a criminal investigation is to be conducted, including discretionary decisions such as the investigative leads to pursue, the victims to be interviewed, and which specific offense to charge, considering the strength of the evidence supporting each individual charge. These decisions are all shielded from judicial review in general by the separation of powers doctrine, and in this specific context by 18 U.S.C. § 3771 (d)(6). A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss. Rose I. Hartford Underwriters Insurance Co., 203 F.3d 417, 420 (6th Cir. 2000)(citation omitted). Jane Doe #4's claim is subject to dismissal because it is barred by 18 5 Petitioners make a similar claim as to Jane Doe #3, contending that "even a rudimentary investigation of Jane Doe #3's relationship to Epstein would have revealed the fact that she had been trafficked throughout the United States and internationally for sexual purposes." D.E. 280 at 6. While admitting that the Government listed Jane Doe #3 as a victim in the attachment to the non-prosecution agreement, petitioners still complain that a more thorough investigation should have been done. Petitioners fail to mention that Jane Doe #3 was contacted by the FBI in 2007, but declined to provide them any information. Exhibit C at 17. II EFTA00210904 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 12 of 14 U.S.C. § 3771(d)(6). Jane Doe #3's CVRA claims are also similarly barred. Although Jane Doe #3 asserts that her rights pursuant to § 3771(a) were violated by the Government, that claim is specious. As Jane Doe #3 has herself admitted, when agents of the Government contacted her in 2007 concerning Jeffrey Epstein, she told them "please don't bother me about this again." Exhibit C at 17. In so doing, Jane Doe #3 discharged the Government of any obligation it may have had pursuant to § 3771(a) to contact her concerning Jeffrey Epstein. Any argument petitioners may advance that the Government nonetheless had to reinitiate contact with Jane Doe #3 against her expressed wishes not only runs afoul of § 3771(d)(8)(setting forth a victim's right to be treated "with respect for the victim's dignity and privacy"), but also runs afoul of § 3771(d)(6) because it seeks to dictate when the Government must continue to pursue an investigation and/or contact with a victim who has spurned further Government contact concerning the subject of the criminal investigation. CONCLUSION Petitioners' motion to amend their petition to add Jane Doe #3 and Jane Doe #4 should be denied. Neither has acted with the dispatch required by 18 U.S.C. § 3771(d)(3), by waiting years to assert their claims. Further, if their claims are considered to be arising in a civil action, they are barred by the six year statute of limitations in 28 U.S.C. § 2401(a). Further, there has been undue delay in adding the new victims, since petitioners' counsel have represented Jane Doe #3 since as early as March 2011, and Jane Doe #4 as early as 2012. No explanation is provided on why petitioners have waited until the end of 2014 to add the new victims. The addition of Jane Doe #4 will prejudice the Government because it injects a new claim — that the CVRA imposes a duty to consult with victims unknown to the Government and with victims 12 EFTA00210905 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 13 of 14 who have rebuffed further Government contact. Moreover, this amendment to the petition is futile since the claim is subject to dismissal under Fed.R.Civ.P. 12(b)(6). DATED: January 20, 2015 Respectfully submitted, WILFREDO A. FERRER UNITED STATES ATTORNEY CERTIFICATE OF SERVICE I HEREBY CERTIFY that on January 20, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. Jane Does 1 and 2'. United States, Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Bradley J. Edwards, Esq., Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 13 EFTA00210906 Case 9:08-cv-80736-KAM Document 290 Entered on FLSD Docket 01/20/2015 Page 14 of 14 Paul G. Cassell Attorneys for Jane Doe # I and Jane Doe # 2 Roy Black Jackie Perczek Black, Srebnick, Kornspan & Stumpf, P.A. Th11O—annnaslani.sla Attorneys for Intervenors 14 EFTA00210907