EFTA00095388.pdf

J7FYEPSC 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK 2 x 3 UNITED STATES OF AMERICA, 4 v. 19 CR 490 (RMB) 5 JEFFREY EPSTEIN, 6 Defendant. Conference x New York, N.Y. July 15, 2019 9 10:05 a.m. 10 Before: 11 HON. RICHARD M. BERMAN, 12 District Judge 13 APPEARANCES 14 GEOFFREY S. BERMAN 15 United States Attorney for the Southern District of New York 16 BY: 17 Assistant United States Attorneys 18 Martin G. Weinberg, PC Attorney for Defendant 19 Steptoe & Johnson, LLP (NYC) 20 Attorneys for Defendant BY: REID WEINGARTEN 21 MARC FERNICH 22 Attorney for Defendant 23 JAMES BROCHIN Attorney for Defendant 24 JOSEPH JAFFE 25 Attorney for Defendant SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095388  J7FYEPSC 1 APPEARANCES (Cont'd) 2 Also Present: David Boies 3 Brad Edwards NYPD 4 , FBI 5 U.S. Pretrial Services n} 6 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095389  3 1 THE COURT: Good morning, everyone. Please be seated. 2 For your information and for the people sitting in the 3 overflow courtroom, we have tried to accommodate everybody into 4 this proceeding either here in my usual courtroom or in the 5 overflow room. So I hope everybody can hear me. 6 The purpose of today's proceeding, as I'm sure you're 7 all aware, is to conduct a bail hearing. In this matter, as I 8 think you know, the government is seeking continued pretrial 9 remand of Mr. Epstein and the defense is arguing for pretrial 10 release. The parties have submitted helpful written 11 submissions, and they have been placed on the docket. 12 You should also be aware, if you weren't -- I don't 13 think you are -- that there is what's called a pretrial 14 services report. One has been filed with me today. 15 Typically the purpose of such a report is to make a 16 recommendation to the Court as to whether there should be bail 17 or detention. 18 There was an additional report -- I think they've 19 gotten additional information in today's report -- and the 20 representatives of pretrial services are here in the court 21 today. 22 The report itself is typically not filed on the 23 docket, but it does conclude as follows. This is a quote. It 2.1 says that "There is no condition or combination of conditions 25 that will reasonably assure the appearance of the defendant as SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095390  1 required and the safety of the community." It goes on to 2 conclude that: "Therefore, pretrial services respectfully 3 recommends the defendant be detained." 4 Now, of course this ultimately is the issue that I 5 have to decide and will do so with your help. 6 You should be aware, incidentally, that I have not yet 7 reached a decision on this matter, and I do not intend to do so 8 today. I need a little bit more time to absorb everything 9 that's been submitted, and I will probably do so, that is to 10 say, give my decision here in the courtroom, on Thursday, 11 July 18, at 9:30 here in Courtroom 17B. I will endeavor to 12 finish by then and to be able to share with you my 13 determination. 14 We also have in the court today several persons who 15 are contending that they are victims in the legal context of 16 Mr. Epstein's conduct. They're welcome in these proceedings. 17 Indeed, they have the right to be present, and they also have 18 the right to be heard under federal law. 19 As I understand it, they have advised the Court, 20 through counsel and through the government counsel, that they 21 oppose bail for Mr. Epstein. They may also be heard today in 22 court if they wish to be heard. 23 So for today, I thought, if this is agreeable to the 24 government and the defense, I would give each side say up to 20 25 minutes, if they wish to have it and if they do wish to be SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095391  1 heard on their respective issues. 2 The government always has the burden of proof. So I 3 would start with them. They made the first application which 4 was for remand. 5 I should tell you -- and I will right now -- that I 6 have some questions for each side. And I'm going to go over 7 them with you right now so that before the government and the 8 defense speaks, they will know what questions I would like them 9 to address, if they wish to. Otherwise, they can say whatever 10 they wish. But these are questions that I have on my mind. 11 So the first question is this. It involves some 12 discussion that I would like each side to address. As you 13 know, this case involves two counts or two charges. 14 These are allegations contained in the indictment. 15 One is conspiracy to commit sex trafficking. And the other, 16 the second count, is the substantive count of sex trafficking. 17 The referenced statute is 18 U.S. Code, Section 1591. And for 18 our purposes, since this is a bail proceeding, also the Bail 19 Reform Act. 20 Section 1591, as is relevant here -- those cases are 21 unusual in the criminal law insofar as they carry with them a 22 presumption that "No condition or combination of conditions 23 will reasonably assure the appearance of the person as required 24 and the safety of the community." 25 As you probably know already, most cases carry a SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095392  6 1 presumption that bail will be granted. That is not true with 2 respect to the charges here. 3 The presumption of remand, as in this case, may be 4 rebutted by the defense. And if it is, the government has the 5 burden of proving that remand is nevertheless warranted. 6 Indeed, the government bears this burden of persuasion 7 throughout. 8 The burden with respect to the safety of the community 9 is clear and convincing evidence, and the burden with respect 10 to risk of flight is preponderance of the evidence. 11 The defense argues that the presumption of remand is 12 rebutted here. And I refer to several places where they say 13 that, but one is at page 6 and following of their letter 14 application for release of Mr. Epstein. 15 So my question as relates to this burden and 16 presumption is for the defense particularly, how was the burden 17 rebutted in this case which is something that they contend 18 they've been able to do. 19 And my question for the government is whether that 20 presumption has been rebutted and, if so, how has the 21 government been able to prove remand is appropriate, if it has. 22 So here is another question. Actually, I have a lot 23 of questions. But the ones that are on top of my mind are 24 five. We have all the time in the world. So if you have more 25 questions, I'd be happy to have them answered. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095393  1 So the question is the following: Mr. Epstein has 2 been required to register as a sex offender in several states 3 going back I believe to 2008 when he pled guilty to an offense 4 in Florida. 5 Those states include New York, Florida, and the Virgin 6 Islands. So one question I have for each side is what about 7 New Mexico. That's half of the question. 8 The rest of the question is as follows: Mr. Epstein 9 has applied in New York state to lower his sex offender status 10 from what's called a level 3, which is the highest level which 11 I think carries with it a high risk of recidivism, according to 12 these levels and to sex offender regulation. 13 And he sought to have that lowered to level 1. His 14 application was denied, as I understand the proceedings, by the 15 Board of Examiners of Sex Offenders New York state and then in 16 state court by the courts and, particularly, a decision of the 17 Honorable Justice Ruth Pickholz on our about January 18, 2011. 18 I believe that decision was appealed to the New York State 19 Appellate Division and was unanimously upheld. 20 I read this morning a copy of the transcript of the 21 proceedings before Judge Pickholz which I'm likely to place on 22 the docket after today's session. And the question is for each 23 side. First of all, they're free to comment on my description 24 of the proceeding before Judge Pickholz. 25 But the question is whether there were or are other SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095394  1 legal or administrative proceedings in Florida, the Virgin 2 Islands, New Mexico, and any other jurisdiction comparable to 3 the one before Judge Pickholz in which she ruled on 1-18-2011. 4 So I'm not suggesting that there are, although I think 5 I did read someplace that there may be some proceeding pending 6 in New Mexico. I'm not quite sure. That's what I hoped you 7 could help me out on. 8 It doesn't have to be precisely the same proceeding 9 that Judge Pickholz had. I'm looking for any transcripts in 10 particular and administrative or legal proceedings in other 11 states relating in any way to Mr. Epstein's sex offender 12 status. 13 The third question on my mind is this: The defense 14 has submitted a brief financial summary to the Court of 15 Mr. Epstein's assets. And I, as you know, permitted that it be 16 submitted under seal for, among other reasons that were on my 17 mind, not to slow the proceedings down. 18 The summary is cursory I would say, short, less than a 19 page and does not fully assist me in rendering the bail/remand 20 decision, that is to say, in its detail or absence of detail. 21 And moreover, the information provided in that summary seems to 22 be known already to the government in other ways. They seem to 23 have gotten that information from other sources. 24 So I am inclined to place the summary on the docket, 25 but I want to hear from both sides whether I should or should SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095395  1 not do that. 2 Four, the government, as you probably know, has 3 conducted a search of Mr. Epstein's home on East 71st Street on 4 the Upper East Side a little over a week ago in tandem, as it 5 were, or in connection with Mr. Epstein's arrest. 6 The government contends in its submission that the 7 information uncovered as a result of that search supports 8 detention, pretrial detention, in this proceeding. 9 And I would like to know from the government 10 particularly what that information is and whether it would be 11 feasible -- it certainly would be helpful if there is such 12 information, that a sample of that evidence in some form be 13 included in this bail remand proceeding. 14 Lastly for now, this fifth question. The government 15 contends that there is evidence of recent what appears to be or 16 what could be alleged witness tampering or obstruction of 17 justice in connection with two recent payments, one in the 18 amount of $250,000 and another in the amount of $100,000 to, as 19 I understand it, to two employees or associates of Mr. 20 Epstein's. 21 Those payments were made soon after a Miami Herald 22 story about this case and particularly the role of the Florida 23 United States Attorney, Mr. Acosta at the time, and the U.S. 24 Attorney's Office. 25 And I would like to hear from the government and/or SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095396  10 1 the defense what additional insight about this episode they can 2 share with us to support their position in these proceedings. 3 So, as all good lawyers, I reserve the right to have 4 more questions, and I probably will. 5 But I'm happy to begin with Mr. and have 6 you heard on the issue of remand versus bail. If you can 7 include some or all of these questions in your presentation, 8 that would be great. 9 MR. : Yes, your Honor. 10 Your Honor, the government seeks pretrial detention in 11 this case due to the extraordinary risk of flight and the 12 danger presented by the defendant to the community, a danger 13 that is not speculative but, rather, is evident from his prior 14 actions. As a result, we join with the recommendation from 15 pretrial services and the requests of the victims that the 16 defendant be detained. 17 As the Court pointed out, with the sex trafficking 18 offense charged here, there is a presumption that no 19 combination of release conditions could reasonably assure the 20 defendant's appearance and the protection of the public. 21 The Court asked whether the presumption has been 22 rebutted, and the answer is no. There has been no information 23 provided by the defendant to rebut that presumption in this 24 case. 25 And in particular, as the Court noted, the defendant SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095397  11 1 provided no specific detailed financial information in its 2 submission. I'll get into that in a little bit more in a 3 moment. 4 But certainly the first question for a defendant of 5 this tremendous means is how much money does he have, where is 6 it, what are the accounts, is it in foreign accounts, how much 7 is in diamonds or art. These are all details that would be necessary for the Court to even begin to consider this type of 9 application. 10 So, no. The presumption has not been rebutted. 11 However, your Honor, even if the defense were able at some 12 point to rebut the presumption by providing some more 13 information, there simply is no way that they can meet the 14 standard here. 15 The evaluation of the Bail Reform Act suggests that 16 all of those factors counsel in favor of remand, which we'll go 17 into in a little more detail. 18 THE COURT: It is accurate to say that you as the 19 government has the burden of persuasion or proof in this 20 instance. Right? 21 MR. : Yes, your Honor. There are good 22 reasons why sex trafficking has a presumption of detention and 23 even more so where a defendant, as this defendant has, has 24 previously been convicted of a sex offense. 25 And in connection with that, his dangerousness is SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095398  12 1 clear from his willingness to tamper with witnesses and victims 2 as the Court can see from the two police reports produced to 3 the Court and from the defendant's payments just months ago to 4 individuals associated with the defendant during the relevant 5 time. The Court asked a question about that. 6 Your Honor, we just became aware of those payments 7 late last week. We, frankly, don't have additional information 8 other than that they were paid, that they were paid to two 9 individuals who were associated with the defendant at the time, 10 and that those two individuals are both listed in the 11 non-prosecution agreement. 12 So there is certainly an inference there that the 13 defendant was attempting to influence them right around when he 14 came back into public consciousness. 15 Your Honor, the victims in this case seek detention 16 and fear his release. And most of all, he is an extraordinary 17 flight risk. As the government has discussed, he has six 18 homes. He owns two private islands. He owns a residence in 19 France. And he has told his own financial institution that he 20 is worth more than $500 million. 21 In the government's filing last Monday, we described 22 the defendant as being extraordinarily wealthy which was 23 confirmed by the defense even in his very minimal financial 24 disclosure. 25 Since the government's initial filing, we have SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095399  1 obtained records from a financial institution that has been 2 associated with the defendant confirming that the defendant 3 represented his net worth as more than $500 million. 4 Your Honor, just as one example, the defendant had a single 5 account at that financial institution totaling more than $110 6 million. 7 There can be no dispute whatsoever that this defendant 8 has vast assets and every incentive in the world to use those 9 assets to flee from justice. 10 Your Honor, the government seeking detention in this 11 case is not unusual. Defendants are routinely detained in this 12 district when facing such charges, and this defendant should be 13 treated no differently. The fact that he has considerable 14 resources to flee prosecution only makes the case for his 15 detention stronger. 16 On that note, with respect to the strength of the 17 evidence, again, last Monday, the government described its 18 evidence as "strong." Just a week later, after seven days of 19 this case being public following months of a covert 20 investigation, the evidence is already significantly stronger 21 and getting stronger every single day. 22 Many individuals identifying themselves as victims and 23 witnesses have contacted the government, and we are in the 24 process of receiving and corroborating this additional 25 evidence. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095400  1 Your Honor, with a case that's no longer covert, we 2 have been able to dramatically expand the scope of our 3 investigation in just the last week. And that additional 4 evidence builds on a case that was already indicted by a grand 5 jury, that already included evidence of dozens of alleged 6 victims, that already included significant corroborated 7 evidence, evidence that led to the charges for which this 66-year-old defendant could serve up to 45 years in prison. 9 The defendant has essentially conceded that the 10 government will be able to prove the elements of the crimes 11 currently alleged. They acknowledged in their submission that 12 the government likely will be able to show that the defendant 13 engaged in sex acts for money with girls he knew were under 14 age. 15 Now, in the face of all of this evidence and the 16 extraordinary incentives for the defendant to flee, what does 17 the defendant propose? Nothing that would meaningfully 18 mitigate the risks of danger and especially flight. 19 THE COURT: Are you talking about the bail package 20 now? 21 MR. : Yes, your Honor. 22 So in the first instance, the defendant's one-page 23 financial disclosure form is more significant for what it does 24 not include than what it does. It is cursory, as the Court 25 said, at best. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095401  15 1 It does not include a list of accounts. It does not 2 include a list of financial institutions. It does not identify 3 what types of currencies the defendant holds. It does nothing 4 to identify the location of his holdings. It does nothing to 5 identify high-value property such as diamonds or art, both of 6 which were observed in abundance in just the government's 7 search of his Manhattan mansion. The other thing, your Honor, is we're just relying on 9 the defendant's word for all of this. This is not sworn. It's 10 not under penalty of perjury. There are no account statements. 11 There are no bank records. There is nothing to validate this. 12 That's not to say that if this were validated, that 13 this would somehow rise to the level of being granted bail, but 14 it's notable with respect to the presumption in particular and 15 also with respect to how the Court evaluates the defendant's 16 assets that we are relying on him. 17 The defendant's financial disclosure form should alarm 18 the Court, your Honor, not give it comfort that there are 19 conditions that would keep the defendant from fleeing and 20 prevent him from being a danger. 21 With respect to the proposed package, the defendant 22 proposes the Court accept his Manhattan mansion as security for 23 a bond. Now, the government has already designated that 24 property for seizure making it worthless to the defendant. He 25 proposes cosigners who couldn't possibly secure a package SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095402  1 representing even a fraction of his wealth. 2 THE COURT: I don't know that we know that because we 3 don't really know what their financial situation is. 4 MR. : I suppose that's true, your Honor. 5 Based on the government's preliminary research, it seems like 6 they wouldn't be able to, but we have no idea. That's exactly 7 right. The defendant's proposal of home confinement and 9 electronic monitoring is also meaningless for an individual 10 with his financial resources. Reducing this defendant's head 11 start in fleeing should be of no comfort whatsoever. 12 In connection with that factor, your Honor, just this 13 morning, the government became aware that in a locked safe in 14 the defendant's mansion there were piles of cash, dozens of 15 diamonds, and a passport appearing to be issued from a foreign 16 country with a photo of the defendant and a name on that 17 passport that is not the defendant's name. 18 THE COURT: Say that again. 19 You found that today? 20 MR. : We became aware of it today. It was 21 seized in connection with a warrant, and we became aware of it 22 just this morning, the particular details this morning. 23 THE COURT: When you say "piles of cash," did you 24 count it? 25 MR. : No. We have not counted the cash, SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095403  17 1 your Honor. It does raise the question of how many other safes 2 are there in how many other locations with items like these. 3 The defendant also makes proposals that highlight, 4 rather than mitigate, the dangers of granting bail. His offer 5 to consent to extradition is unenforceable, and it highlights 6 his extensive connections abroad. 7 I should say, your Honor -- I forgot to mention passport that I just referenced listed at the time his 9 residence as Saudi Arabia, and this was from the 1980's. 10 THE COURT: Would you describe that passport again. 11 I'm not sure I caught it. 12 MR. : I can, your Honor. 13 The passport was issued in the name of a foreign 14 country. It appears to have been issued sometime in the 15 1980's. It is expired currently. It has a photo that appears 16 to be the defendant, and it has a name that is not Jeffrey 17 Epstein. 18 In connection with that, I also want to note that the 19 defendant's proposal for private security is inadequate and 20 impractical and would put the defendant in the position of 21 having complete financial control over the people who are 22 supposed to guard him. 23 As this Court has written: "What more compelling case 24 for an order of detention is there than a case in which only an 25 armed guard and the threat of deadly force is sufficient to SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095404  1 assure the defendant's appearance."So that's just on flight, 2 your Honor. 3 With respect to danger to the community, none of the 4 defendant's proposals address the very significant danger this 5 defendant proposes, both to victims and witnesses and to the 6 proper administration of justice. 7 The government has heard from more than one victim 8 that in connection with the prior investigation, they believed 9 they were being instructed by the defendant or his associates 10 to avoid or lie to law enforcement. 11 The defense said in its submission that it was without 12 knowledge as to the basis of the incidents referenced by the 13 government in our initial filings. 14 So, as the Court saw, we submitted the underlying 15 police reports. Those police reports are detailed, they're 16 credible, and they're supported by corroborating evidence such 17 as phone records. 18 THE COURT: These are from Florida; right? 19 MR. : That's correct, your Honor. These 20 are very real concerns, and they cannot be mitigated if the 21 defendant is released. 22 And as the government noted in its submission and as 23 the Court asked about, even recently the defendant has sent 2.1 hundreds of thousands of dollars to two individuals just days 25 after the publication of significant news articles about the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095405  1 defendant. 2 THE COURT: Could you go back to those Florida police 3 reports and tell us what you think they demonstrate. 4 MR. : Yes, your Honor. 5 They certainly suggest that there were individuals who 6 believed that they were being harassed and interfered with by 7 the defendant or his agents. That was investigators or other individuals working on behalf of or at the behest of the 9 defendant. 10 Now, those aren't charges proven in court. Those 11 aren't convictions. But they certainly are factual occurrences 12 that people reported contemporaneously and that are significant 13 and concerning. 14 With respect to just a couple of the Court's 15 questions, bouncing around just slightly, with respect to the 16 financial information which, again, is limited at best, the 17 government took no position on the defendant's sealing 18 application for, among other reasons, the fact that we did not 19 know what they were going to submit. We imagined that it would 20 be more detailed. 21 Secondly, the government obviously had just hours to 22 respond to the defendant's at that point. So we took no 23 position and of course defer to the Court as to whether there 24 is a valid reason to seal such limited and summary information. 25 We will confer, your Honor, on whether we're able to SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095406  1 provide a sample of the search warrant materials. Those 2 materials remain under review. They are, generally speaking, 3 many, many, many photographs of nude and partially nude women 4 and girls who appear to be young. 5 The government has identified at least one individual 6 in those photos who has self-identified as a victim of the 7 defendant. And, frankly, it is a lot of material that we are 8 continuing to work through. 9 With respect to the sex offender registration of the 10 defendant in other states, your Honor, following up on the 11 Court's question last week, we did confer with New York state 12 authorities. 13 There is no particular result from this case in terms 14 of his registration in New York. He remains registered, but 15 there is no specific consequence as to him being charged or 16 arrested in this case and no change of his status. He is 17 already, of course, at the highest status of risk for 18 re-offense. 19 Just very briefly, your Honor, with respect to some of 20 the other arguments that defense counsel made -- 21 THE COURT: Are you familiar with whether or not there 22 are other proceedings in other jurisdictions of a similar 23 nature to Judge Pickholz's decision? 2.1 MR. : We are not aware of any similar 25 proceedings. That's not to say that there aren't any, but the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095407  21 1 government is not aware of any at this time, your Honor. 2 Now, turning just very briefly to some of the legal 3 arguments that defense counsel raised in their submission, the 4 defendant raised legal arguments that he says he intends to 5 argue later. 6 The Court should have no confidence whatsoever that 7 the defendant would stick around to pursue long-shot, dubious 8 legal arguments at some future time. As set forth in the 9 government's submission, the non-prosecution agreement does not 10 preclude this prosecution. 11 And even if that agreement were applicable to this 12 district, which it is not, the defense itself acknowledges that 13 the indictment included evidence beyond the initial 14 investigation. That effectively moots this issue for the bail 15 argument. This case will go forward. 16 The defendant will lose any argument about due 17 process. He will lose any argument about pre-indictment delay. 18 And if he choses to be tried before a jury of his peers, we are 19 confident he will be convicted. 20 The Court should ensure he is here when that time 21 comes by ordering his detention. 22 THE COURT: Counsel. 23 MR. WEINBERG: Thank you, your Honor. 24 If I can, your Honor, before responding to the Court's 25 questions, put this case in some context. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095408  22 1 Before 1984, before the Bail Reform Act, there was an 2 Eighth Amendment that the United States Supreme Court 3 guaranteed bail to anyone who wasn't charged with a capital 4 offense, and the justices wrote continuously that was because 5 detention impairs a defendant's ability to prepare a defense. 6 In this case, the government has told us there's going 7 to be an enormous amount of discovery. The stakes are grave, and one of the most important reasons for Mr. Epstein's release 9 is to permit him the right to fully prepare a defense. 10 The second reason that before 1984 there was an 11 entitlement to bail was because of the presumption of innocence 12 and because of the basic premise of the American criminal 13 justice system that you don't punish first and have a trial 14 second; that non-convicted citizens don't get detained which is 15 essentially a label for punishment. 16 There is no way to replace the freedom if Mr. Epstein 17 is to prevail on these charges. If the government's over a 18 decade of delay is found prejudicial by the Court which 19 thereafter dismisses the charges, if the Court determines that 20 the nonpros agreement was circumvented by the prosecutors in 21 Florida when they encouraged their witnesses and their 22 witnesses' lawyers to go to the Southern District and catalyze 23 and create a case. That's unique. 24 These were not two silos, the Southern District of 25 Florida and the Southern District of New York. It is more than SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095409  23 1 coincidental that on the Saturday before the Monday filing by 2 Mr. Epstein in Florida in the CVRA case Mr. Epstein is 3 arrested. 4 We have evidence not only of an enormous amount of 5 overlapping evidence, but we have evidence of the involvement 6 of the Department of Justice; the CEOS unit, the Child 7 Exploitation Unit, both before the nonpros agreement was 8 executed, they were involved with the Southern District of 9 Florida. And after, they volunteered essentially to be part of 10 a team in the event that Mr. Epstein did not conclude his 11 obligations under the CVRA. 12 THE COURT: You mentioned in your submissions -- and I 13 think you mentioned or your colleague mentioned the last time 14 that we were in court -- that high-level Department of Justice 15 officials approved the non-prosecution agreement. 16 MR. WEINBERG: Yes, your Honor. 17 THE COURT: Who are they? 18 MR. WEINBERG: First, the agreement was executed on 19 September 24, 2007. Appeals were taken by Mr. Epstein 20 challenging the federal interest in what was a potential state 21 prosecution. 22 The first level was the criminal division. The head 23 of the criminal division, Alice Fisher, assigned to Sigal 24 Mandelker. I may be mispronouncing her name, but she is the 25 current Undersecretary of the Treasury. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095410  21 1 She received submissions from the defense that this 2 was essentially a local crime without the necessary interstate 3 elements that constitute the foundation of federal prosecution. 4 We had a meeting in Washington with a number of the 5 defense team with representatives of the criminal division and 6 the representatives of the CEOS, the Child Exploitation Unit. 7 They recognized that their position was not squarely 8 within the precedence that had preceded this March 2008 9 meeting. They recognized the arguments were novel; that some 10 of the provisions in the NPA were novels. But they endorsed 11 the exercise of prosecutorial discretion that was at the heart 12 of the NPA. 13 THE COURT: Was there any proceeding at which their 14 position is documented or any correspondence? 15 MR. WEINBERG: Yes, your Honor. There are submissions 16 by the defense to the criminal division in Washington that I 17 believe were dated in March. And then there was a response in 18 May which in essence authorized -- 19 THE COURT: May of what year? 20 MR. WEINBERG: May of 2008. 21 THE COURT: What did it say? 22 MR. : It endorsed the exercise of 23 discretion after recognizing in about a six- or seven-page 24 letter that the facts and circumstances surrounding the NPA 25 were unusual; that these allegations were not within the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095411  25 1 heartland of federal jurisprudence or the federal statutes that 2 were targeted for Mr. Epstein. 3 THE COURT: They actually said that and then endorsed 4 the agreement -- 5 MR. WEINBERG: They said that they were unusual 6 arguments; that they essentially understood the arguments we 7 were making. They didn't denounce the federal case. 8 They, instead, said that they believed, after a 9 review, that there was authority and that there was a 10 sufficient discretion that should be accorded to the U.S. 11 Attorney. 12 An appeal was then taken to the Deputy Attorney 13 General who at the time was Mr. Filip, F-i-l-i-p. Again, I may 14 be butchering his name. 15 THE COURT: That's his last name? 16 MR. : That's his last name. Mark I think 17 is his first name. 18 He assigned John Roth, who was a former Florida 19 prosecutor and was his deputy or the deputy to the Deputy 20 Attorney General. And Mr. Roth received further written 21 submissions. Again, there was the second endorsement of the 22 discretion that Mr. Acosta in Florida exercised when he 23 approved. 24 And this was not a single-man approval. The 25 negotiations in the Southern District of Florida included the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095412  1 head of the first assistant, Mr. Sloman. 2 THE COURT: In New York. 3 MR. WEINBERG: Right. In the Southern district, there 4 were six or seven prosecutors, including New York City 5 prosecutors, in what was either the largest or second largest 6 U.S. Attorney's Office. I don't know how the manpower compares 7 to the Southern District of New York. 8 This was well thought through. Again, it was with 9 consultation of the Department of Justice before September 24 10 and then again after where the government continued to 11 investigate. 12 THE COURT: Is Mr. Filip the highest level official in 13 the Department of Justice? 14 MR. WEINBERG: Yes. He was just one step below the 15 Attorney General. 16 THE COURT: He was Deputy Attorney General? 17 MR. WEINBERG: Deputy Attorney General. 18 In May or June of 2008, he approved the discretion to 19 enter the NPA and to essentially endorse the decision and 20 implicitly endorsed that there was some federal interest in 21 this case because we were contesting whether or not this was a 22 case that warranted the weight of the federal government which 23 required Mr. Epstein to go to the state which had returned an 24 indictment for solicitation and actually urged the state of 25 Florida to bring a second charge that would subject Mr. Epstein SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095413  27 1 to registration which was part of the obligations that he 2 accepted, and no one quarrels with his performance. 3 He went to the state. They returned the higher 4 charge. He went to jail. He did his strict probation with 5 home detention. And he's been registered since 2010. 6 I think these facts are important, not just because 7 they are the cornerstone of a potential legal defense, and I 8 won't go through all of the different factors that we believe 9 on a principal basis will distinguish this case from the 10 precedence that Mr. is relying on. 11 These were not two silos. The Southern District 12 didn't stand completely detached from the activities and the 13 events in Florida. But that's a motion to dismiss that will be 14 brought later. The premise is if we're right and they're wrong 15 and he's detained, he's lost freedom without punishment. 16 Your Honor asked about the rebuttable presumption, and 17 I think this also goes back to the events of the 2007 and 2008 18 era. 19 THE COURT: So the presumption, first of all, the 20 people who wrote that presumption into law clearly know about 21 bail and history and the need for defendants to consult with 22 their counsel, etc. 23 But in this rather narrow class of cases, almost al_ 24 of them I think relating to children or young people, there are 25 a whole series of cases, exceptions to be sure, where the SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095414  2 1 presumption of remand maintains. And this is one of those 2 cases. 3 MR. WEINBERG: Yes, your Honor. 4 THE COURT: So why is that? 5 MR. WEINBERG: Interestingly, if I can point out 6 another provision in the Bail Reform Act, and this is 3142(c). 7 At the very end of the set of conditions, the Congress in 1984, 8 which was essentially revolutionizing the criteria for release, 9 says that: "In any case that involves a minor victim under" - 10 and they quote a series of statutes, including 1591 -- "any 11 release order shall contain at minimum a condition of 12 electronic monitoring, a curfew, and other conditions." 13 So Congress recognized that despite the presumption, 14 which the law says is rebuttable and is more a burden of 15 production than an ultimate burden of persuasion issue, 16 Congress understood that defendants charged with 1591 would be 17 released under conditions at the discretion of the court and 18 that if they were -- 19 THE COURT: I think they understood that they could be 20 released, not that they would be, otherwise, they wouldn't have 21 written that presumption. 22 MR. WEINBERG: Absolutely. 23 THE COURT: So could you share any insight why, 24 notwithstanding -- and I don't disagree with you. Bail is the 25 norm rather than the exception. But we totaled up -- I don't SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095415  1 know if there are more -- 12 cases, all of which involve a 2 minor victim -- kidnapping, sex trafficking of children, 3 aggravated sexual abuse, sexual abuse, offenses resulting in 4 death, sexual exploitation of children, selling and buying of 5 children, the production of sexually explicit depictions of a 6 minor for importation into the United States, crimes involving 7 the transportation of minor victims, coercion and enticement, transport of minors, and use of interstate facilities to 9 transmit information about a minor. 10 All of those -- there may be others, but those are the 11 ones we found -- also carried this presumption of remand 12 instead of bail. 13 MR. WEINBERG: Yes, your Honor. 14 THE COURT: Presumption. 15 MR. WEINBERG: Yes, your Honor. If we're looking at 16 1591 -- and I'm not here today to in any way diminish the 17 gravity of the allegations against Mr. Epstein, but it's far 18 away from the heartland of 1591 commercial sex trafficking that 19 deals with servitude and deals with enslavement and deals with 20 pimps, if I can use that word, selling women for commercial 21 profit. 22 We've provided the Court with some of the division in 23 the law, including decisions by this Court, by Judge Jones 24 relying on a South Dakota opinion, by the chief justice that 25 finds the statute inapplicable. SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095416  1 THE COURT: Is that the Fiaro (phonetic) case? 2 MR. WEINBERG: Yes, your Honor. Again, today is not 3 the day to be arguing Rule 29 issues or even the construction 4 and scope of the statute. But I think lots of the detentions 5 are for your quintessential traffickers. 6 And I understand we don't have consent and, therefore, 7 the government substitutes that language. But this is not quintessential commercial sex trafficking to third parties for 9 profit. 10 But more important or as important, if I can say that, 11 the presumption is rebuttable. Even in those cases that 12 your Honor listed, the statute contemplates that some 1591 13 defendants will be released under conditions, and I believe 14 that the rebuttal to the presumption -- one is the danger 15 prong; one is the flight prong. If I can address them 16 separately. 17 THE COURT: Sure. 18 MR. WEINBERG: I apologize if I'm using the time. 19 THE COURT: No. You have the right. 20 MR. WEINBERG: Thank you, Judge. 21 THE COURT: I think that is interesting. So those 22 prongs have different burdens of proof for one thing, clear and 23 convincing in one instance and preponderance in the other. 24 It's either/or or both one could find. But if one 25 found one of those, either a danger to the community or flight SOUTHERN DISTRICT REPORTERS, P.C. EFTA00095417  1 risk, that would suffice. 2 MR. WEINBERG: I think I have to bear the burden of 3 rebutting the presumption as to each prong, although I think 4 once rebutting the burden falls on the government, and then 5 they have different substantive burdens of proof. 6 So danger. There are two categories of the dangers 7 that have been identified by the government. Number one is simply the danger of recidivism which is the classic danger 9 that results in detention when detention is predicated on 10 danger. 11 And Congress was very clear that they -- because the 12 danger prong is predictive. It is not just was he a bad guy. 13 Did he do things in the past. That's what a trial is for. 14