EFTA00229916.pdf

Memorandum Subject Dam Jane Does Nos. 1 and 2. v. United States, Case No. 08-80736-C1V-MARRA (S.D.Fla.) April 26, 2011 To From ,AUSA Assistant Counsel 99 N.E. 4 Street Office of Professional Responsibility Miami, Florida 33132 U.S. Department of Justice VIA FEDERAL EXPRESS Attached please fmd a CD-ROM containing the victims' Motion for Finding of Violations of the Crime Victims Rights Act and Request for a Hearing on Appropriate Remedies (unredacted), and a complete set of exhibits, including the e-mails in Exhibit A. The e-mails in Exhibit A are between Epstein's defense attorney and AUSA Villafalta. They were produced in civil litigation between Epstein and some of his victims. Epstein's attorneys redacted their side of the e-mail transmission. I will attempt to obtain a complete set, which includes the transmission from Epstein's attorneys. If you have any questions, please call me al= Thank you. Enclosure EFTA00229916 Case 9:08-cv-8073§-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 1 of 42 RT UNITED STATES DISTRICT COU SOUTHERN DISTRICT OF FLO RID A on Case No. 08-80736-CW-Marra/Johns JANE DOE #1 and JANE DOE #2 v. UNITED STATES LATIONS OF DOE #1 AND JAN E DOE #2'S MOTION FOR FINDING OF VIO JAN E HEARING ON CRI ME VIC TIM S' RIG HTS ACT AND REQUEST FOR A THE APPROPRIATE REMEDIES ms"), by and Doe #2 (also referred to as "the victi COME NOW Jane Doe HI and Jane victims' rights under for a finding from this Court that the through undersigned counsel, to move ted by the U.S. , 18 U.S.C. § 3771, have been viola the Crime Victims Rights Act (CVRA) violations. ing on the appropriate remedies for these Attorney's Office, and to request a hear ailed to facts to the Government, which they have The victims have proffered a series of 's Office has e facts,' it is clear that the U.S. Attorney contest. Proceeding on the basis of thes confer with CVRA rights, including their right to repeatedly violated the victims' protected tion agreement the and specifically about a non-prosecu prosecutors generally about the case See 18 U.S.C. well as their right to fair treatment. Office signed with the defendant, as 3771(8)(5) & (8). U.S. Attorney's ple, that in September 2007, the It is now beyond dispute, for exam tion agreement with Jeffrey Epstein that barred his Office formally signed a non-prosecu accepted by the filing a motion to have their facts I The victims are contemporaneously Court EFTA00229917  JSMiGi:T - ----- --------- twwwer n-7 ----- Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 2 of 42 itted against the victims (as well as prosecution for numerous federal sex offenses he comm the victims about this non-prosecution against many other minor girls). Rather than confer with Jeffrey Epstein agreed to a "confidentiality" agreement, however, the U.S. Attorney's Office and — including the victims. For the next provision in the agreement barring its disclosure to anyone ey's Office assiduously concealed from nine months, as Epstein was well aware, the U.S. Attorn agreement. Indeed, the Office went so the victims the existence of this signed non-prosecution letter to the victims informing them • far as to send (in January 2008) a false victim notification the U.S. Attorney's Office had already that the "case is currently under investigation." In fact, -prosecution agreement. Again on May resolved the case three months earlier by signing the non notification letter to a recognized 30, 2008, the U.S. Attorney's Office sent yet another victim igation" and that it "can be a lengthy victim informing her that the "case is currently under invest we conduct a thorough investigation." process and we request your continued patience while state guilty plea that was pait of the Then in June 2008, on the eve of consummating Epstein's asked legal counsel for the victims to non-prosecution agreement, the U.S. Attorney's Office l charges should be filed — not send a letter expressing the victims' views on why federa a pointless exercise because the non- disclosing to the victims' legal counsel that this was months earlier. prosecution agreement had already been signed some nine violations of Jane Doe #1 and These actions and many more like them constitute clear including the right to confer with Jane Doe #2's rights under the Crime Victims Rights Act, argument that the U.S. Attorney's Office prosecutors and the right to fair treament The only indictment was formally filed in this case. advances is that the CVRA does not apply because no 's plain language, see, e.g., 18 U.S.C. § But this position is inconsistent with both the CVRA 2 EFTA00229918  -• ,,,,,,, -,,,, I , . ' Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 3 of 42 "detection" and "investigation" of 3771(c)(I) (Justice Department agencies involved in the case law, see, e.g.( ht re Dean, 5 7 F.3d federal crimes covered by CVRA), and with persuasive d before pre-indicts-Cali ea reached). 391, 394 (5th Cir. 2008) (victims should have been notifie aware of its obligations to notify the Moreover, the U.S. Attorney's Office itself was fully ce make perfectly clear. The victims in this case, as e-mails from the Office and other eviden non-prosecution agreement from the only reason that the Office concealed the existence of the to avoid a firestorm of public victims was not to comply with some legal restriction, but rather O eart plea deal with a politically-connected controversy that would have erupted if the sweeth billionaire had been revealed. Office — in coordination with The Court phould accordingly find that the U.S. Attorney's le and hearing on the proper Jeffrey Epstein — has violated the Act and set a briefing schedu remedy for those violations. STATEMENT OF UNDISPUTED MATERIAL FACTS ent of undisputed material facts. Jane Doe #1 and Jane Doe #2 offer the following statem s request an evidentiary hearing to prove if the Government disputes any of these facts, the victim each and every one of them:2 in (a billionaire with significant 1. Between about 2001 and 2007, defendant Jeffrey Epste girls at his mansion in West Palm political connections) sexually abused more than 30 minor reasons the victims explain in their 2 The Court should accept ell these facts as true for n to Have Their Facts Accepted contemporaneously-filed Jane Doe #1 and Jane Doe #2's Motio The Facts. The Court should also direct Because of the Government's Failure to Contest Any of supporting these facts, for reasons the the Government to produce all evidence that it possesses #1 and Jane Doe #2's Motion for victims explain in their contemporaneously-filed Jane Doe Relevant Evidence. Order Directing the U.S. Attorney's Office Not to Withhold 3 EFTA00229919 Case 9:O8-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 4 of 42 #1 and Jane the girls he sexually abused were Jane Doe Beach, Florida, and elsewhere. Among (but lewd, lasci vious, and sexual acts on them, including Doe #2. Epstein performed repeated sexual toys on of their sexual organs, using vibrators or not limited to) masturbation, touching ein used a digitally penetrating them. Because Epst them, coercing them into sexual acts, and in abuse traveled in interstate commerce to engage means of interstate commerce and knowingly federal law, the othe r victims), he committed violations of of Jane Doc #1 and Jane Doe #2 (and Epstein, Case § 2422. See. e.g., Complaint, E.W. v. including repeated violations of 18 U.S.C. Complaint, AB (15th Cir. Palm Beach County, Florida); No. 50 2008 CA 028058 XXXXMB h Count, 0280 51 MOCK1v1B AB (15th Cir. Palm Beac L.M. v. Epstein, Case No 50 2008 CA Florida). purpose of underage girl on his private jet for the 2. Jeffrey Epstein flew at least one be sexually othe rs. Epstein forced this underage girl to forcing her to have sex with him and essional royalty, politicians, businessmen, and prof exploited by his adult male peers, including t, Jane Doe No. 102 v. Epstein, No. 9:09-CV-80656- and personal acquaintances. Complain KAM (S.D. Fla. May 1, 2009). au of Beach Police Department, the Federal Bure 3. In 2006, at the request of the Palm his personal allegations that Jeffrey Epstein and Investigation opened an investigation into een the ages of commerce to induce young girls betw assistants had used facilities of interstate was presented titution, among other offenses. The case thirteen and seventeen to engage in pros h accepted the for the Southern District of Florida, whic to the United States Attorney's Office investigating County State Attorney's Office was also case for investigation. The Palm Beach 4 EFTA00229920  7""-^ rann9, Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 5 of 42 t "A" to this filing (hereinafter the case. See generally U.S. Attorney's Correspondence, Exhibi by Bates page number stamp). cited as "U.S. Attorney's Correspondence" and referenced Jane Doe #2 were victims of 4. The F131 soon determined that both Jane Doe #1 and ing when they were approximately sexual assaults by Epstein while they were minors beginn of age respectively. Jane Doe #1, for fourteen years of age and approximately thirteen years (and the abuse of Jane Doe #2) to the example, provided detailed information about her abuse FBI on August 7, 2007. Exhibit "B." gation established that Epstein 5. More generally, the FBI through diligent investi yees and underlings to repeatedly find operated a large criminal enterprise that used paid emplo part of the enterprise with others, and bring minor girls to him. Epstein worked in concert as obtain minor girls not only for his own including Obislane Maxwell and Jean Luc Brunel, to of others. The FBI determined that sexual gratification, but also for the sexual gratification agains t dozens of minor girls Epstein had committed dozens and dozens of federal sex crimes the U.S. Attorney's Office for criminal between 2001 and 2007. They presented information to nce at 47-55. prosecution, See Exhibit "B"; U.S. Attorney's Corresponde Doe #1 a standard CVRA 6. On about June 7, 2007, FBI agents hand-delivered to Jane the Justice Department would makes its victim notification letter. The notification promised that ing "(t)he reasonable right to confer with the "best efforts" to protect Jane Doe #1's rights, includ ably heard at any public proceeding attorney for the United States in the case" and "to be reason in the district court involving . . . plea ." The notification further explained that "(a)t this meant that the FBI had identified Jane lime, your case is under investigation." That notification protected by the CVRA. Jane Doe #1 Doe #1 as a victim of a federal offense and as someone 5 EFTA00229921 Case 9:08-cw8O736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 6 of 42 Department would protect these relied on these representations and believed that the Justice case. See Exhibit "C." rights and keep her informed about the progress of her a standard CVRA victim notification 7. On about August 11, 2007, Jane Doe #2 received ment would makes its "best efforts" to letter. The notification promised that the Justice Depart right to confer with the attorney for the protect Jane Doe #2's rights, including "Mlle reasonable at any public proceeding in the district United States in the case" and "to be reasonably heard ned that "[alt this time, your case is court involving .. . plea ... ." The notification further explai FBI had identified Jane Doe #2 as a victim under investigation." That notification meant that the CVRA. Jane Doe #2 relied on these of a federal offense and as someone protected by the protect these rights and keep her representations and believed that the Justice Department would informed about the progress of her case. See Exhibit "D." Assistant U.S. Attorney had several 8. Early in the investigation, the FBI agents and an counsel that was paid for by the meetings with Jane Doe #1. Jane Doe #2 was represented by through that attorney. criminal target Epstein and, accordingly, all contact was made place between Jeffrey Epstein, 9. In and around September 2007. plea discussions took defense counsel Jay Leflcowitz), and represented by numerous attorneys (including lead criminal Florida, represented by Assistant U.S. the U.S. Attorney's Office for the Southern District of e Attorneyed others. The plea discussions generally began from the premis felony offense surrounding his sexual that Epstein would plead guilty to at least one federal numerous defense attorneys progressively assaults of more than 30 minor girls. From there, the ultimately plead to only two state court negotiated more favorable terms so that Epstein would 6 EFTA00229922 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 7 of 42 in felony offenses and would serve only county jail time. Many of the negotiations are reflected e-mails between Leflcowitz and the U.S. Attorney's Office. See generally Exhibit "A." 10. The evidence supporting these dozen charges was overwhelming, including the interlocking consistent testimony of several minor girls, all made automatically admissible in a federal criminal sexual assault prosecution by operation of Fed. R. Evid. 414. U.S. Attorney's Correspondence at 4. interested in 12. The correspondence also shows that the U.S. Attorney's Office was learning finding a place to conclude a plea bargain that would effectively keep the victims from what was happening through the press. The Office wrote in an e-mail to defense counsel: am The 7 EFTA00229923  • Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 8 of 42 #1 and U.S. Attorney's Office was aware that most of the victims of Epstein, including Jane Doe was Jane Doe 412, resided well outside the Miami area in the West Palm Beach area. The Office less also aware that the chances of press coverage of a case filed in Miami would be significantly likely to reach th&Palm Beach area. U.S. Attorney's Correspondence at 29. 13. On about September 24, 2007, the U.S. Attorney's Office sent an e-mail to Jay that Lefkowitz, criminal defense counsel for Epstein, regarding the agreement. The e-mail stated the Government and Epstein's counsel U.S. Attorney's Correspondence at 153 (emphases added). 14. On about September 25, 2007, the U.S. Attorney's Office sent an email to Lefkowitz stain . SIMIMMISIO U.S. Attorney's Correspondence at 156. 15. On about September 26, 2007, the U.S. Attorney's Office sent an e-mail to Lefkowitz in which she stated• arnale EFTA00229924 Case 9:O8-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 9 of 42 Apparently the ' greed to between the Government and Epstein's defense counsel was that no mention would be made of the non-prosecution agreement between the the U.S. Attorney's Office and Epstein, as no subsequent mention was made to the victims of non-prosecution agreement and a confidentiality provision was made part of that agreement (as discussed below). U.S. Attorney's Correspondence at 359. 16. On about September 25, 2007, the U.S. Attorney's Office sent a letter to Jay Jeflcowitt in which it suggested that the victims should be represented in civil cases against Epstein by someone who was not an experienced U.S. Attorney's Correspondence at 157. The U.S. Attorney's Office continued to push a different attorney in part because it would reduce publicity, explaining that Id. 17. On about September 24, 2007, Epstein and the U.S. Attorney's Office formally reached an agreement whereby the United States would defer federal prosecution in favor of prosecution by the State of Florida. Epstein and the U.S. Attorney's Office accordingly entered into a "Non-Prosecution Agreement" (NPA) reflecting their agreement. Most significantly, the NPA gave Epstein a promise that he would not be prosecuted for a series of federal felony allowed offenses involving his sexual abuse of more than 30 minor girls. The NPA instead Epstein to plead guilty to two state felony offenses for solicitation of prostitution and 9 EFTA00229925  1 ,:fritCel Case 9:O8-cv-807364CAM Document 48 Entered on FLSD Docket 03/21/2011 Page 10 of 42 a victim of The NPA also set up a procedure whereby procurement of minors for prostitution. against Epstein, attorney to proceed with a civil claim Epstein's sexual abuse could obtain an in an attorney damages sought from Epstein. To obta provided that the victim agreed to limit under 18 U.S.C. § have to agree to proceed exclusively paid for by Epstein, the victim would against Epstein — an ided presumed damages of $150,000 2255 (i.e., under a law that prov ed by Epstein ed to $50,000). The agreement was sign amount that Epstein argued later was limit 2007. Non- Attorney's Office, on about September 24, and his legal counsel, as well as the U.S. Prosecution Agreement, Exhibit "E" the non- rney's Office agreed to, a provision in IS. Epstein insisted on, and the U.S. Atto stated: "The ement secret. In particular, the agreement prosecution agreement that made the agre If the United not be made part of any public record. parties anticipate that this agreement will commanding Act request or any compulsory process States receives a Freedom of Information losure." ide notice to Epstein before making the disc the disclosure of the agreement, it will prov e put itself in a y agreement, the U.S. Attorney's Offic By entering into such a confidentialit Doe #2) about ms (including Jane Doe #1 and Jane position that conferring with the crime victi ifically the violate terms of the agreement — spec the non-prosecution agreement would nt would notifying the victims about the agreeme confidentiality provision. Indeed, even through at least Accordingly, from September 24, 2007 presumably have violated the provision. notify any of ths the U.S Attorney's Office did not June 2008 — a period of more than nine mon well aware of this prosecution agreement. Epstein was the victims of the existence of the non- victims. Id.; U.S. arranged for this failure to notify the failure to notify the victims and, indeed, 10 EFTA00229926  ---- tr", '".•49' Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 11 of 42 Attorney's Correspondence at 270; Transcript of Hearing in this case on July 11, 2008, at 4-6, 18-19, 22-23, 28-29 (hereinafter cited as 'Tr, July 11, 2008"). 19. A reasonable inference from the evidence is that the U.S. Attorney's Office — pushed by Epstein — wanted the non-prosecution agreement kept from public view because of the intense publio criticism that would have resulted from allowing a politically-connected billionaire who had sexually abused more than 30 minor girls to escape from federal prosecution with only a county court jail sentence. Another reasonable inference is that the Office wanted the agreement concealed at this time because of the possibility that the victims could have objected to the agreement in court and perhaps convinced the judge reviewing the agreement not to accept it. 20. The Non-Prosecution Agreement that had been entered into between the U.S. Attorney's Office and Epstein was subsequently modified by an October 2007 Addendum and a December 19, 2007, letter from the U.S. Attorney to Attorney Lilly Ann Sanchez. The US. Attorney's Office did not confer with any of the victims about these modifiCations of the agreement (or even notify them of the existence of these modifications) through at least June 2008 — a period of more than six months. See Supplemental Declaration ofl=== (doe. #35, at 1); U.S. Attorney's Correspondence at 234-37; Tr. July 11, 2008, 18-19, 22-23, 28- 29.3 21. In October 2007, shortly after the initial plea agreement was signed, FBI agents contacted Jane Doe 01. On October 26, 2007, Special AgentMIMMI and et in person with Jane Doe 01. The Special Agents explained that Epstein would n 3 On about August 14, 2008, Epstein's defense counsel told the U.S. Attorney's Office that they did not consider the December 19, 2007, letter to be operative. 11 EFTA00229927 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 12 of 42 plead guilty to state charges involving another victim, he would be required to register as a sex offender for life, and he had made certain concessions related to the payment of damages to the victims, including Jane Doe #1. During this meeting, the Special Agents did not explain that an agreement had already been signed that precluded any prosecution of Epstein for federal charges against Jane Doe #1. The agents could not have revealed this part of the non-prosecution agreement without violating the terms of the non-prosecution agreement. Whether the agents themselves had been informed of the existence of the non-prosecution agreement by the U.S. Attorney's Office is not certain. Because the plea agreement had already been reached with Epstein, the agents made no attempt to secure Jane Doe #1's view on the proposed resolution of the case. Exhibit "E," Tr. July 11, 2008 at 4-6, 18-19, 22-23. 22. Jane Doe #1's (quite reasonable) understanding of the Special Agent's explanation was that only the State part of the Epstein investigation had been resolved, and that the federal investigation would continue, possibly leading to a federal prosecution. Jane Doe #1 also understood her own case was move forward towards possible prosecution. Tr. July 11, 2008, at 4-6, 18-19, 22-23, 28-29. 23. On about November 27, 2007, Assistant U.S. AttorneMM sent an e-mail to Jay Leikowitz, defense counsel for Epstein. The e-mail stated that the U.S. Attorney's Office had an obligation to notify the victims S 12 EFTA00229928  7.7 . . ...•" Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 13 of 42 U.S. Attorney's Correspondence at 255 (emphasis rearranged). 24. On about November 29, 2007, the U.S. Attorney's Office sent a draft of a crime victim notification letter to Jay Lefkowitz, defense counsel for Jeffrey Epstein. The notification letter would have explained: The :etter wo..ild have gone un to explain that Epstein would The letter would not have explained that, as part of the agreement with Epstein, the Justice Department had previously agreed not to prosecute Epstein for any of the numerous federal offenses that had been committed. U.S. Attorney's Correspondence at 256-59. 25. Because of concerns from Epstein's attorneys, the U.S. Attorney's Office never sent the proposed victim notification letter discussed in the previous paragraph to the victims. Instead, a misleading letter stating that the case was "currently under investigation" (described below) was sent in January 2008 and May 2008. At no time before reaching the non-prosecution agreement did the Justice Department notify any victims, including for example Jane Doe NI, about the non-prosecution agreement. The victims were therefore prevented from exercising their CVRA right to confer with prosecutors about the case and about the agreement. Epstein 13 EFTA00229929  f'"'",%7 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 14 of 42 was aware of these violations of the CVRA and, indeed, pressured the U.S. Attorney's Office to commit those violations. Tr. July 11, 2008, at 9. 26. On about December 6, 2007, First Assistant U.S. Attorney sent a letter to Jay Lefkowitz, noting the U.S. Attorney's Office's legal obligations to keep victims informed of the lliMin The letter stated: U.S. Attorney's Correspondence at 191-92 (emphasis added). 27. Despite this recognition of its obligation to keep victims about the non-prosecution agreement, the U.S. Attorney's Office did not follow through and inform the victims of the non-prosecution agreement. To the contrary, as discussed below, it continued to tell the victims that the case was "under investigation." Tr. July I I, 2008, at 4.5, 18-19, 22-29. 28. On December 13, 2007, the U.S. Attorney's Office sent a letter to Jay Lefkowitz, defense counsel for Epstein, rebutting allegations that had apparently been made aguinst the 14 EFTA00229930 Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21/2011 Page 15 of 42 AUSA handling the cave by the Epstein defense team. (The Justice Department concluded the allegations were ineritless.) The letter stated that a federal indictment against Epstein a t The letter also recounted that U.S. Attorney's Correspondence at 269. 29. The December 13, 2007, letter also reveals that the Justice Department stopped making victim notifications because of U.S. Attorney's Conespondence at 270 (emphasis added). It was a deviation from the Justice Department's standard practice to negotiate with defense counsel about the extent of crime victim notifications. 30. The December 13, 2007, letter also demonstrates that the Justice Department was well aware of who the victims of Epstein's sexual offenses were. The Justice Department was prepared to make notifications to the victims, but suspended those notifications only because objections from defense counsel. Id 31. The December 13, 2007, letter reveals it would have been possible to confer with the victims about the Non-Prosecution Agreement. The U.S. Attorney's Office was fully able to 15 EFTA00229931 . Case 9:08-cv-80736-KAM Document 48 Entered on FLSD Docket 03/21'2011 Page 16 of 42 confer with Epstein's counsel about the parameters of the Non-Prosecution Agreement, but refused to confer with Epstein's victims about the Agreement. Id 32. Following the signing of the Agreement and the modifications thereto, Epetein's performance was delayed while he sought higher level review within the Department oflustice. See U.S. Attorney's Correspondence passim. A reasonable inference from the evidence is that Epstein used his significant political and social connections to lobby the Justice Department to avoid significant federal prosecution. The Justice Department has in its possession internal documents (i.e., phone logs, ernails, etc.) that would reveal the event of those lobbying efforts. The Justice Department, however, has refused to make these materials available to the victims. 33. On January 10, 2008, Jane Doe #1 and Jane Doe #2 received letters from the FBI advising them that "ftlids case is currently under• investigation. This can be a lengthy process and we request your continued patience while we conduct a thorough investigation." Exhibits "F" & "G." The statement in the notification letter was misleading and, in fact, false. The case was not currently "under investigation." To the contrary, the federal cases involving Jane Doe #1 and Jane Doe #2 had been resolved by the non-prosecution agreement entered into by Epstein and the U.S. Attorney's Office discussed previously. Moreover, the FBI did not notify Jane Doe • #1 or Jane Doe #2 that a plea agreement had been reached previously, and that part of the agreement was a non-prosecution agreement with the U.S. Attorney's Office for the Southern District of Florida. Exhibit "E." Whether the FBI was aware of this fact at this time is unclear. In any event, the FBI was acting at the direction of the U.S. Attorney's Office, wh