EFTA00233037.pdf

PLCAsE scAtc This GRocuto 5thefejn EFTA00233037 U.S. Department of Justice United States Attorney Southern District of Florida 500 S. Australian Ave, Ste 400 West Palm Beach, FL 33401 (561) 820-8711 Facsimile: (561) 820-8777 June 12, 2009 DELIVERY BY HAND Jack A. Goldberger, Esq. Atterbury, Goldberger & Weiss, P.A. Re: Jeffrey Epstein Dear Mr. Goldberger: Pursuant to the terms of the Non-Prosecution Agreement, the United States Attorney's Office for the Southern District of Florida hereby provides you with notice that the United States Attorney has determined, based on reliable evidence, that Jeffrey Epstein has willfully violated one of the conditions of the Non-Prosecution Agreement. Specifically, on May 26, 2009, Jeffrey Epstein, through his counsel, filed a "Motion to Dismiss the First Amended Complaint or, in the Alternative, for a More Definite Statement," in the matter of Jane Doe No. 1011 Jefrey Epstein, Court File No. 09-CV-80591-KAM. "Jane Doe No. 101" was on the list provided to Mr. Epstein's attorneys of individuals whom the United States had identified as victims, as defined in 18 U.S.C. § 2255, and "Jane Doe No. 101" has elected to proceed exclusively under 18 U.S.C. § 2255. By filing the Motion to Dismiss, Mr. Epstein is contesting liability and, therefore, has violated Term 8 of the Non-Prosecution Agreement. Based upon Mr. Epstein's breach of that term, the U.S. Attorney's Office will pursue its remedies. The U.S. Attorney's Office also is continuing its review of Mr. Epstein's filings in the civil suits to determine whether additional breaches have occurred. If any are EFTA00233038 JACK GOLDBERGER, ESQ. JUNE 12, 2009 PAGE 2 OF 2 identified, they will be communicated to you in accordance with the terms of the Non- Prosecution Agreement. Sincerely, Acting United States Attorney By: Assistant United States Attorney cc: Chief, Northern Division Roy Black, Esq. EFTA00233039 07/29/2011 13:11 FAX 001/004 KIRKLAND & ELLIS LLP Fax Transmittal 300 North LaSalle Street Chicago, Illinois 60654 Phone: (312) 862-2000 Fax: (312) 862-2200 Pleas. notify us Immediately if any pages are not received. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL, MAY BE ATTORNEY-CLIENT PRIVILEGED, MAY CONSTITUTE INSIDE INFORMATION, AND IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE. UNAUTHORIZED USE, DISCLOSURE OR COPYING IS STRICTLY PROHIBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: (312) 862-2000, To: CC: Martin G. Weinberg, Esq. Company: United States Attorney, Southern District of Florida Company: Fax #: Direct S: Fax #: Direct N: From: Sandra Musumeci for Jay P. Leflcowitz, P.C. Message: Date: July 29, 2011 Pages w/cover: 4 Fax it; Direct*: Please see the attached letter, in response to your letter to Martin Weinberg of July 27, 2011, concerning Jeffrey Epstein. Thank you. DocumcnQ EFTA00233040 07/23/2011 13:12 FAX ei002/004 Jay P. Lefkowliz. P.C. To Call Writer Directly: jay.batoviatatkittgand.com KIRKLAND & ELLIS LLP AMPAIUWAUDIMTIWIL6AM 601 Lexington Avenue New York, New Yolk 10022 l== vnwi.kirkland.com July 29, 2011 Delivery by Facsimile CONFIDENTIAL Assistant United States Attorney United States Attorney, Southern District of Florida 500 S. Australian Avenue Suite 400 West Palm Beach, FL 33401 Re: Jeffrey Epstein Dear • Sit Thank you for your letter of July 27, 2011 to my co-counsel Martin Weinberg concerning the request by the New York District Attorney for copies of the Non-Prosecution Agreement ("NPA") and the "victim list" in regards to Mr. Epstein. We continue for the reasons stated herein to believe that any such disclosure would violate the confidentiality agreement between your Office and Mr. Epstein as well as the provisions of Fed. R. Crim. P. 6(e). As to the NPA, you have repeatedly asserted in Doel United States No. 9:08-ev-80736- KAM, that the NPA was a confidential document. For instance, in paragraph 6 of Document 14, your own Declaration, you stated that the NPA contained "an express confidentiality provision." In opposing the Motion to Unseal the NPA that was filed by Jane Doe, you stated that you had informed Judge Marra of the confidentiality provision during an earlier telephonic status conference occurring on August 14, 2008 which "the United States was obligated to honor," Document 29 at 1, and that "the parties who negotiated the Agreement, the United States Attorney's Office and Jeffrey Epstein, determined that the Agreement should remain confidential," Document 29 at 2. Further, you deemed the NM "confidential," for understandable purposes, in your September 3, 2008 letter to Robert Josefsberg in which you informed him that Judge Marra had set forth procedures for providing the NPA only to those counsel and "victims" who executed a Protective Order preventing its subsequent disclosure. The New York Assistant District Attorney, Ms. Morse, is representing the prosecution in an appeal regarding a sex offender registration determination, and any disclosure of the NPA to her bas the potential to result in its use in that appeal and the real risk that the appellate court will unseal it. We believe it to violate both the spirit and the most logical interpretation of the NPA, Chicago Hong Kong London Los Angela" Munich PaloAtto San Francisco Shanghai Washington D.C. KO& 19439741.2 EFTA00233041 07/29/2011 13:12 FAX it003/004 KIRKLAND & ELLIS LLP July 29, 2011 Page 2 paragraph 13, for you to disclose it absent a subpoena -- which we could oppose in the jurisdiction from which it emanated. We further believe that when parol evidence supplements the text of paragraph 13 of the NPA, it is perfectly apparent from your prior submissions that you as well as we believed the NPA to contain "an express confidentiality provision" that your current willingness to disclose absent court process violates. As to the "victim list," again, not only is it confidential given its nexus to the NM, but your own prior letters tie the list to the Federal Grand Jury investigation and thus to the non- disclosure provisions of Fed. R. Crim. P. 6(e). On July 8, 2008, you wrote to Jack A. Goldberger, Esq., and informed him that on June 30, 2008, "the United States Attorney's Office provided [him] with a list of thirty-one individuals 'whom it was prepared to name in an Indictment as victims of an enumerated offense by Mr. Epstein." (emphasis added). On July 9, 2008, you wrote in a follow-up letter to Mr. Goldberger that "the U.S. Attorney's modification of the 2255 portion of the Agreement now limits our victim list to those persons whom the United States was prepared to include in an indictment. This means that, pursuant to Justice Department policy, these are individuals for whom the United States believes it has proof beyond a reasonable doubt that each of them was a victim of an enumerated offense." (emphasis added). First Assistant United States Attorney Jeffrey Sloman used similar language in tying the names of the "victims" to the basis for a potential indictment, see December 6, 2007 letter from Mr. Sloman to Mr. Lefkowitz at 2, 3; see gim your email to Mr. Lefkowitz and Mr. Black on August 14, 2008 at 3:27 p.m., where you state that the list contains "only those 'individuals whom [the United States] was prepared to name in an Indictment...,"' thus clearly providing the nexus between the list and the Grand Jury investigation and its corollary, the protections from non- disclosure enumerated in Fed. R. Crim. P. 6(e), In terms of case law, the names of witnesses that either testified or were identified during Grand Jury proceedings are subject to the secrecy provisions of Fed. R. Crim. P. 6(e). Sys, e.z., In re Grand Jury Subpoena, Judith Miller 438 F.3d 1138, 1140 (D.C. Cir. 2006) ("Consistent with these purposes, we have recognized that grand jury secrecy covers 'the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and t like.") (citing Dug Dow Jones & Co., Inc„ 142 F.3d 496, 500 (D.C. Cir. 1998)); see also SEC Dresser Indust. la, 628 F.2d 1368, 1382 (D.C. Cir. 1980); Fund for Constitutional Gov't Nat'l Archives & Records Serv., 656 F.2d 856, 869 (D.C. Cir. 1981). Indeed, it is generally recognized that the scope of protection accorded to Grand Jury proceedings under Rule 6(e) is broad and encompasses, among other things, information such as the "victim list" at issue here: K&F. 10439748.2 EFTA00233042 07/28/2011 13:12 FAX e004/004 KIRKLAND &ELLIS LLP July 29, 21)11 Page 3 We construe the secrecy provisions of Rule 6(e) to apply not only to disclosures of events which have already occurred before the grand jury, such as a witness's testimony, but also to disclosures of matters which will occur, such as statements which reveal the identity of persons who will be called to testify or which report when the grand jury will return an indictment. In re Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir. 1980).1 We believe that confidentiality applies to the requested information. We believe that any non-compulsory handover of the list or NPA is inconsistent with the positions you have previously taken in related litigation. Accordingly, we request that you reconsider and decline the request of the New York District Attorney. Cc: Martin G. Weinberg JPLIsInt Decisions of the United States Court of Appeals for the Fifth cicult handed down prior to September 30, 1981, are binding as precedent in the Eleventh Circuit. See Bonner 'hy of Prichard. Ala., 661 F.2d 1206, 1207 (11th Cir. 1981). K&EI9AWM8.2 EFTA00233043 Roy BIACK HOWARD M. SRESMOC ScorrA. KORNSPAN LARRY A. STUMPF MARIA NEYRA JAcxus Pinta= MARK A.J. SHM1RO JARED LOPEZ BLACK SREBNICK KORNSPAN STUMPF September 1, 2009 Esq. Assistant U.S. Attorney United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 RE: Jeffrey Epstein Dear III Jessica FONSECA-NADER KATHLEEN P. PHILLIPS AARON ANION MARCOS BEATON, JR. MArninv P. O'BRIEN JENIPER J. Souums NOAH Fox Once again I need to send you a note about Jeffrey Epstein, mainly to keep you in the loop so we don't inadvertently violate any provision of his agreement with your office. As I am sure you are aware, Mr. Epstein has finished the incarceration portion of his sentence and is now serving the one year of community control as mandated by both his state plea and the terms of the non- prosecution agreement with the United States Attorney's Office for the Southern District of Florida. Mr. Epstein is in compliance with all terms of his community control and is applying for transfer of his supervision from the State of Florida to his primary residence, the Virgin Islands. This transfer is being requested through the Intrastate Compact for Transfer of Adult Supervision (ICAOS). The ICAOS is the mechanism for which transfers of probation and community control are effectuated. The process requires the offender to seek the approval of the sending state (in this case Florida) and, if they agree, the receiving state (in this case the United States Virgin Islands) and the United States Virgin Islands after investigation has pre-approved the transfer under the same exact conditions of supervision as imposed in Mr. Epstein's community control Qe.ntence in the State of Florida. Even though Mr. Epstein is requesting the transfer he is still at the home EFTA00233044 September 1, 2009 Page 2 in Palm Beach following the rules of state community control. As Mr. Epstein's lawyers, we believe that his request to administratively transfer his community control is in full compliance with both his state plea agreement and the non- prosecution agreement with the United States Attorney's Office. Nonetheless we have taken to heart your previous suggestion of erring on the side of caution and thus we are advising you of this request I am happy to discuss this with you at any time. I did not want to set an appointment to see you on this issue since I imagine you have more pressing matters to deal with than a transfer of a state community control matter. RB/wg Very i Roy Black Black. Srebnick. Kornspan & Stumpf. PA EFTA00233045 Roy BLACK HOWARD M. SREBNICK ScmT A. KORNSPAN LARRY A. STUMPF MARIA NEYRA JACKIE PERCZEK MARK A.J. SHAPIRO JARED LOPEZ BLACK SREBNICK KORNSPAN STUMPF PA. February 18, 2010 Assistant United States Attorney 99 N.E. 4th Street Miami, FL 33132 Dear RE: Jeffrey Epstein JESSICA FONSECA-NADER KATHLEEN P. PHILLIPS AARON ANTHON MARCOS BEATON, JR. MATTHEW P. O'BRIEN JENIPER J. SOULIKIAS NOAH Fox Thank you for your letter of February 11, 2010. We write to update you about ongoing efforts to reach an agreement with Robert Josefsberg regarding the amount of fees and costs properly owed to him by Mr. Epstein pursuant to the NPA. On February 16, 2010 Mr. Epstein's principal civil counsel Bob Critton advised Mr. Josefsberg in writing that he and Mr. Epstein would meet with Mr. Josefsberg on two occasions between now and March 1, 2010 to review Mr. Josefsberg's outstanding bills on a line-by-line basis and attempt to reach a non- adversarial resolution of all outstanding fee issues. Mr. Critton also transmitted to Mr. Josefsberg an Agreement for Special Master to Determine Amount of Attorneys' Fees and Costs (`Special Master Agreement% signed by Mr. Epstein, containing terms and conditions previously agreed to by Mr. Josefsberg, which would mandate binding mediation before a neutral third party in the event the proposed settlement discussions did not resolve all outstanding issues in an expeditious manner. We want to assure you that Mr. Epstein fully intends to fulfill his obligations under the NPA. We regret that issues remain unresolved regarding whether all of the fees and costs being sought by the attorney representative - which now total $1,947,000 exclusive of the $526,466 already paid by Mr. Epstein - meet the criteria set forth by the NPA. We assure you that both Mr. Epstein's prior civil counsel, Jay Lefkowitz, who, with you, was a primary negotiator of the NPA language, and Mr. Critton, each strongly believe that significant amounts of the fees and costs billed by Mr. Josefsberg are outside the scope of Mr. Epstein's fee- EFTA00233046 r eoruary 15, ZU iv Page 2 related payment obligations under the NPA. We hope that the fee-related issues can be resolved by further settlement discussions or by relying on the Special Master Agreement signed Tuesday February 16, 2010 by Mr. Epstein. Mr. Epstein and his counsel believe that these options are consistent with the NPA, are good faith alternatives to contested litigation, and are reasonable given the unexpected magnitude of the bills and their inclusion of charges for legal work that was clearly related to the preparation of litigation and thus outside Par 7C of the Addendum as well as for extensive work performed by attorneys from outside Mr. Josefsberg's law firm. Mr. Josefsberg previously advocated for settling outstanding issues through a Special Master Agreement nearly identical to the one executed Tuesday by Mr. Epstein. In fact, Mr. Josefsberg and Mr. Epstein had each agreed in the past to a specific Master as a third-party neutral to conduct proceedings to resolve the fee issues. However, the selected Master withdrew. We hope that the Special Master Agreement will provide a basis for a prompt resolution of any issue not resolved by the parties through further discussions. Respectfully submitted, MARTIN WEINBERG, ESQ. ROY $LACK, ESQ. /wg cc: Black. Srebnick, Kornspan & Stumpf. P.A. EFTA00233047