EFTA02729255.pdf

Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 1 of 41 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80811-CIV-ZLOCH/SNOW C.M.A., Plaintiff, FILED UNDER SEAL' $eated vs. JEFFREY EPSTEIN and SARAH KELLEN, Defendants. DEFENDANTS JEFFREY EPSTEIN AND SARAH KELLEN'S MOTION FOR STAY I • This motion is filed under seal because the deferred-prosecution agreement between the United States Attorney's Office (by Assistant U.S. Attorney Marie C. Villafana, Esq.) and Mr. Epstein, I discussed herein, contains a confidentiality clause. I LewjAIsinn. 3059 Owe Awns.Sum 310, Cccoodur Owns hoes 3303 I 09/1212019 Agency to Ag t: 19-411 CONFIDENTIAL CONFIDE PT SDNY_GM_00331538 EFTA 00204264 EFTA02729255  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 2 of 41 Defendants Jeffrey Epstein and Sarah Kellen respectfully move for a mandatory stay of this action under Title 18, United States Code, Section 3509(k), Section 1595(bX1), and alternatively, under this Court's discretionary authority to stay civil litigation, based on the existence of a pending federal criminal action. Introduction This lawsuit arises from a pending federal criminal action concerning, among other things, an alleged assault of the plaintiff Jane Doe, who, according to her complaint, on "numerous occasions" provided "massages" to Epstein with "no credentials to provide massage therapy" and was "sometimes paid . . for the `sessions'." Compl., ¶¶ 6, 11. A federal statute directly on point provides that when a civil suit alleging damages to a minor victim arises out of the same 1 occurrence as a "criminal action," the civil suit "shall be stayed until the end of all phases of the criminal action." 18 U.S.C. § 3509(k) (emphasis added).' 1 I The full text of the mandatory-stay provision reads: If, at any time that a cause of action for recovery of compensation for damage or injury to the person of a child exists, a criminal action is pending which arises out of the same occurrence and in which the child is the victim, the civil action shall be stayed until the end of all phases of the criminal action and any mention of the civil action during the criminal proceeding is prohibited. As used in this I subsection, a criminal action is pending until its final adjudication in the trial court. I 18 U.S.C. § 3509(k). I )099 G9AM0 MINUS. SUM 340.COCOMM GILOVE. Falelk 3313) I 09/12/2019 Agency to Agency Requet: 19-411 IDENTIAL CONFPa SDNY_GM_00331539 EFTA 00204265 EFTA02729256  , Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 3 of 41 Accordingly, a stay of this case is mandatory until the criminal action arising from the same allegations is no longer pending. I The Pending Federal Criminal Action In 2006, a Florida state grand jury indicted Jeffrey Epstein on allegations similar to those in the instant action (State of Florida v. Jeffrey Epstein, Case No. 2006 CF 09454A, Fifteenth Judicial Circuit, Palm Beach County) (the "Florida Criminal Action"). Shortly thereafter, the United States Attorney's Office for the Southern District of Florida (the "USAO") began a federal grandjury investigation into allegations arising out of the same incidents alleged in the instant action (Grand 1 Jury No. 07-103 (WPB), United States District Court for the Southern District of Florida) ("the Federal Criminal Action"). In September 2007, the USAO and Mr. Epstein entered into a highly unusual and unprecedented deferred-prosecution agreement (the "Agreement"), in which the I USAO agreed to defer (not dismiss or close) the Federal Criminal Action on the I condition that Mr. Epstein continue to comply with numerous obligations, the first of I which was pleading guilty to certain state charges in the Florida Criminal Action. The Agreement itself uses the term "deferred" (rather than "dismissed" or "closed") I to describe the status of the Federal Criminal Action: I THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida prosecution in this I District, for these offenses shall be deferred in favor of prosecution by 2 I Leviaj .str, XIS* GRAM) AMYL Surrt340. COCOPAR Own. PLOPS )1I13 09/12/2019 Agency to Agency Requet: 19-011 I CONFIDENTIAL CONFIDE P SDNY_GM_00331540 EFTA 00204266 EFTA02729257  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 4 of 41 the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement . . . . Agreement, at 2. By no stretch did the USAO finalize, close, complete, dismiss or abandon the Federal Criminal Action. Indeed, as the lead federal prosecutor recently explained, the USAO merely "agreed to defer federal prosecution in favor of prosecution by the State of Florida . . . ." See In re: Jane Doe, Case No. 08- 80736-CIV-Marra/Johnson (S.D. Fla.) (D.E. 14), Decl. of AUSA Villafana, 07/09/08, ¶ 5, attached hereto as Exhibit "A" (emphasis added). Under the Agreement, the USAO presently retains the continuing right to indict Mr. Epstein - - or to unseal "any" already-existing federal "charges" that may already have been handed up by the federal grand jury and sealed - - should he breach any of its provisions. Agreement, at 2. The period of the deferral continues until three months after Mr. Epstein completes service of his sentence in the Florida Criminal Action. Id. Indeed, the final three months of the Agreement's term constitute an extended period during which the USAO expressly retains the ability to evaluate whether Epstein committed any breaches of his numerous obligations under the agreement while he was serving his state sentence, and, if it so determines, reserves the right to indict 3 Ley4A.:AcOn I ,OPPGRAmo Avviut. Sun 340. COCCOVT GROVE. FuoluoA 3101 1 09/1212019 IDENTIAL CONFPa Agency to Agency Requet: 19-411 SDNY_GM_00331541 EFTA 00204267 EFTA02729258  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 5 of 41 (or unseal an existing indictment against) Mr. Epstein - - even after he has completed serving his entire state sentence. The Agreement further provides that upon Epstein's execution of a plea agreement in the State Criminal Case, the Federal Criminal Action "will be suspended" and all pending grand-jury subpoenas "will be held in abeyance unless and until the defendant violates any term of this agreement." Agreement, at 5 (emphasis added). The Agreement directs the USAO and Epstein to. "maintain their evidence, specifically evidence requested by or directly related to the grand jury subpoenas that have been issued," and to maintain such evidence "inviolate." Id. (emphasis added). It also expressly provides that the grand-jury subpoenas continue to remain "outstanding" until "the successful completion of the terms of this agreement." Id. (emphasis added). Further, it includes a promise not to prosecute movant/defendant Sarah Kellen, only if "Epstein successfully fulfills all of the terms and conditions of th[e] agreement." Id Finally, the Agreement provides that the USAO's declination of prosecution for certain enumerated offenses and dismissal of any existing (sealed) charges will not occur until 90 daysfollowing the completion ofhis state sentence: I If the United States Attorney should determine, based on reliable evidence, that, during the period of the Agreement, Epstein I willfully violated any of the conditions of this Agreement, then the 4 Lewte Teinn. I 3039 GlIAMO MINIMUMS 340. COCIpivr aunt.CLOMP.13133 I 09/12/2079 Agency to Agency Requet: 19-011 CONFI al5 3ENTIAL SDNY_GM_00331542 EFTA_00204268 EFTA02729259  . Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 6 of 41 United States Attorney may, within ninety (90) days following the I expiration of the term of home confinement discussed below, provide Epstein with timely notice specifying the condition(s) of the Agreement that he has violated, and shall initiate its prosecution on any offense within sixty (60) days' of [sic] giving notice of the violation. Any notice provided to Epstein pursuant to this paragraph shall be provided within 60 days of the United States learning of facts which may provide a basis for a determination of a breach of the Agreement. After timely fulfilling all the terms and conditions of the Agreement, no prosecution for the offenses set out on pages 1 and 2 of this Agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Office, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein, if any, will be dismissed. Agreement, at 2. Consistent with the Agreement and its position that the Federal Criminal I Action continues to remain pending, the USAO recently sent letters to attorneys for people that the USAO has designated as "victims." In those letters, the USAO asked, "[I]f you do file a claim under 18 U.S.C. § 2255 and Mr. Epstein denies that I your client is a victim of an enumerated offense, please provide notice of that denial to the undersigned [AUSA]." See Decl. of AUSA Villafana, Exhs. 6 & 7, at 2 (July 9, 2008). The clear implication of the USAO's request (by which the USAO appears to involve itself in the instant litigation, despite advising the J recipients that it cannot "take part in or otherwise assist in civil litigation," id. at 2), 1 is that the USAO believes that such denial might breach the Agreement. 5 Lewis Teln re. I 1039thwea Mt/Lt.Sun MO. COCONUT Ollattl. FLOILIOA I 09/12/2019 Agency to Agency Requet: 19-411 Pa CONFIDENTIAL SDNY_GM_00331543 EFTA 00204269 EFTA02729260 . Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 7 of 41 Accordingly, the Federal Criminal Action remains "pending." discussion I. Section 3509(k) Imposes a Mandatory Stay. The language of Title 18, United States Code, Section 3509(k) is clear and mandatory: a parallel "civil action shall be stayed until the end of all phases of the criminal action." 18 U.S.C. § 3509(k) (emphasis added). The word "shall" means that the statute's command is mandatory and not subject to a Court's discretion. See, e.g., Lopez v. Davis, 531 U.S. 230, 241 (2001) (noting Congress' "use of a mandatory 'shall' to impose discretionless obligations") (emphasis added); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 35 (1998) (explaining that "the mandatory 'shall' . . . normally creates an obligation impervious to judicial discretion") (emphasis added). Cf. Miller v. French, 530 U.S. 327, 350 (2000) (construing the litigation-stay provision of the Prison Litigation Reform Act, holding, "Through the PLRA, Congress clearly intended to make operation of the automatic stay mandatory, precluding courts from exercising their equitable powers to enjoin the stay. And we conclude that this provision does not violate separation of powers principles.") (emphasis added). One District Court within the Eleventh Circuit recently construed "the plain language of § 3509(k)" as "regaining" a stay in a case . . . where . . a parallel criminal action [is] pending." Doe v. Francis, No. 5:03 CV 260, 2005 WL 950623, 6 laNeMaTEin 1059 Gmtro Avon". Sing 340.COttwur Gaon. FLORIDA 33B1 09/1212019 Agency to Agency Requet: 19-411 CONFIal53ENTIAL SDNY_GM_00331544 EFTA_00204270 EFTA02729261  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/0712009 Page 8 of 41 at *2 (N.D. Fla. Apr. 20, 2005) (Francis II) (emphasis added). Accord Doe v. Francis, No. 5:03 CV 260, 2005 WL 517847, at *1-2 (N.D. Fla. Feb. 10, 2005) (Francis I) (staying federal civil action in favor of "a criminal case currently pending in state court in Bay County, Florida, arising from the same facts and involving the same parties as the Instant action," noting that "the language of 18 U.S.C. § 3509(k) is clear that a stay is required in a case such as this where a parallel criminal action is pending which arises from the same occurrence involving minor victims") (emphasis added). There is no contrary opinion from any court. In determining that the federal stay provision is mandatory, the Francis II court expressed that there was apparently no case law supporting, or even "discussing the [avoidance] of a stay [under the command of] § 3509(k)." Francis II, 2005 WL 950623, at '2. Deferring to the statute as written, the Francis II court 1 rejected the plaintiffs' argument that some of the alleged victims had already 1 reached their majority. See id. The court similarly rejected the plaintiffs' argument that it would be in the victims' best interests to avoid a stay so as to counteract the victims' "ongoing and increasing mental harm due to the `frustrating 1 delay in both the criminal case and [the civil] case.' Id. 1 1 7 1 LesOAXsin 3039 demo Avuoue,Surra 100,CoceinnGton. haven 33113 09/1212019 Agency to Agency Requet: 19-411 I CONFIDENTIAL Pa SDNY_GM_00331545 EFTA_00204271 EFTA02729262  . Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 9 of 41 II. Section 3509(k) Applies to Investigations, Not Just Indictments. While there is no unsealed indicted criminal case against Mr. Epstein, the government's criminal investigation against him remains open. Section 3509(k) clearly applies to stay civil cases during the pendency, not only of indicted criminal cases, but also of pre-indictment criminal investigations. I The term "criminal action" is not expressly defined in § 3509(k). It is defined, however, by a closely related statute. Title IS, § 1595 provides a civil remedy for "forced labor" and "sex trafficking" violations, but stays such 1 actions "during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim."2 In enacting § 1595, Congress 1 'The full text of that statute provides: .1 § 1595. Civil remedy (a) An individual who is a victim of a violation of section 1589, 1590, or 1591 of this chapter may bring a civil action against the perpetrator in an appropriate district court of the United States and may recover damages and reasonable attorneys fees. I (b) (I) Any civil action filed under this section shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the I claimant is the victim. (2) In this subsection, a "criminal action" includes I investigation and prosecution and is pending until final adjudication in the trial court. 18 L'.S.C. § 1595. I 8 I LeNaktiTsin n. 100 0ltneo Ansa Sun YACOCOWT GeOn. Tam 33133 09112/2019 Agency to Agency Requet: 19-011 I CONFIDENTIAL CONFIDE Pa SDNY_GM_00331546 EFTA 00204272 EFTA02729263  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 10 of 41 specifically intended that the term "criminal action" would be applied extremely broadly. Accordingly, Congress took pains to ensure that courts would give it the I broadest possible construction and, for that reason, specified in the definition provision that "criminal action" also "includes investigation." 18 U.S.C. § 1595(bX2). The only reported decision addressing this provision interpreted it according to its plain language. See Ara v. Khan, No. CV 07-1251, 2007 WL 1726456, *2 (E.D.N.Y. June 14, 2007) (ordering "all proceedings in this case stayed pending the conclusion of the government's criminal investigation of the defendants and of any resulting criminal prosecution") (emphasis added). Given that the USAO's Agreement with Epstein indicates that: the grand-jury's subpoenas remain "outstanding" (Agreement, at 5); I • the subpoenas are "h[e]ld . .. in abeyance" (id.); the subpoenas are not "withdrawn" (id); the parties must "maintain their evidence" (id.) (which would be entirely unnecessary if the investigation against Epstein were closed); • "any" existing "charges" will not "be dismissed" until after Epstein I has "timely fulfill[ed] all the terms and conditions of the Agreement" (id. at 2) (emphasis added); and I • "prosecution in this District . . . shall be deferred" (id.) (but not closed or dismissed) - - I then the only reasonable conclusion is that the Federal Criminal Action remains I "pending." 9 I Le 3039 Gave AvIDAIL SUIT 340. Coal in rl. CAW! FLOM* 33133 I 09/12/2019 Agency to Agency Requet: 19-011 CONFlatIgNTIAL SDNY_GM_00331547 EFTA_00204273 EFTA02729264  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 11 of 41 The ordinary meaning of the adjective "pending" is "Memaining undecided; awaiting decision . . . ." Black's Law Dictionary 1154 (8th ed. 2004).3 See also White v. Klitzkie, 281 F.3d 920, 928 (9th Cir. 2002) (relying on Black's Law Dictionary, in the context of a criminal case, for the definition of "pending" as "awaiting decision"); Swartz v. Meyers, 204 F.3d 417, 421 (3d Cir. 2000) (relying on Black's Law Dictionary for the definition of "pending," expressly because "'pending' is not defined in the statute"). Any common-sense reading of the I Agreement and the USAO's recent sworn construction of it, is consonant with the Federal Criminal Action's "remaining undecided" and "awaiting decision." See I Unified Gov't of Athens-Clarke County v. Athens Newspapers, LLC, No. I S07G1133, _S.E.2d 2008 WL 2579238, *3 (Ga. June 30, 2008) (reviewing a I public-records request against Georgia's "pending investigation" exception to its open-records law, and holding that "a seemingly inactive investigation which has I not yet resulted in a prosecution logically "remains undecided," and is therefore I "pending," until it "is concluded and the file closed") (emphasis added). I I ' The United States Court of Appeals for the Eleventh Circuit routinely relies on Black's Law I Dictionary for the definition of statutory terms, including in criminal cases. See e.g., United States v. Young, 528 F.3d 1294, 1297 n.3 (11th Cir. 2008) (definitions of criminal "complaint" and "indictment"); United States v. Brown, 526 F.3d 691, 705 (11th Cir. 2008) (definition of I "knowingly" in criminal statute). 10 Levitia_Thin rp. I 10390emo Avow& Sum 340. OX01.111O4ort. Fle•OA 3113) I 09/12/2019 IDENTIAL CONFPa9 Agency to Agency Requet: 19-411 SDNY_GM_00331548 EFTA 00204274 EFTA02729265  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 12 of 41 III. Section 3509(k) Applies Even After a Plaintiff Turns 18. The parallel stay provision in § 1595, discussed supra at 8-9, mandates, without exception, that any civil action brought under that section for violation of § 1591 (prohibiting transportation of minors for prostitution) "shall be stayed during the pendency of any criminal action arising out of the same occurrence in which the claimant is the victim." 18 U.S.C. § 1591(bX1). Whether the § 1595 plaintiff has turned 18 does not vitiate the efficacy of this mandatory stay. An example illustrates why the stay provided in § 3509(k) has the same broad scope as the stay provided in § 1591(bX1). As discussed above, § 3509(k) stays any civil suit for injury to a minor, arising out of the same occurrence as a pending criminal action. One type of civil suit falling within § 3509(k)'s ambit is a 1 suit seeking redress for a violation of 18 U.S.C. § 2423(a). Section 2423(a) - - just like § 1591 - - prohibits transportation of minors for prostitution. The elements of 1 both statutes are identical. There would simply be no legitimate basis for Congress 1 to differentiate between the consequences attached to violating these two sections. Thus, just as Congress mandated under § 1595(bX1) that civil discovery shall be stayed when there is an ongoing federal investigation under § 1591 (even after the 1 victim turns 18), the identical treatment should apply under § 3509(k) to civil I actions brought for the identical violation of § 2423(a). 11 rt. I 309 Ow..Asa -all:LAU:SID Staff 140. COMMIT Own.?LOOS 33113 I 09/12/2079 T CONFIDEN TIAL Agency to Agency Requet: 19-011 SDNY_GM_00331549 EFTA_00204275 EFTA02729266  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 13 of 41 Logic compels a rule requiring continued application of the § 3509(k) stay to a putative victim who has since turned 18. Consider again the example of § 2243(a). Assume that the USAO is investigating a § 2243(a) violator with two alleged victims; one who is now 17, and one who has turned 19. Assume further that both decide to sue the alleged offender while the USAO is still in the process of conducting its criminal investigation. Why would Congress enact § 3509(k) to prohibit the defendant from conducting civil discovery in the 17-year-old's lawsuit, but permit him to conduct full discovery in the 19-year-old's lawsuit, including taking the depositions of both the 19- and the 17-year-old, the federal investigating agents and all the grand-jury witnesses? This could not have been Congress' intent. 1 The legislative history to a statute resembling § 1595 is also instructive. When Congress enacted 18 U.S.C. § 2255, it provided a civil remedy to any 1 "minor . . . victim" of enumerated federal sex offenses. See Child Abuse Victims' 1 Rights Act of 1986, Pub. L. No. 99-500, 100 Stat. 1783, § 703 (1986). In 2006, Congress amended the statute to clarify that the civil cause of action was available not just while the victim was a minor, but even after she or he turned 18. See Pub. 1 L. 109-248, 120 Stat. 650, § 707 (b)(l)(A) (amending § 2255 to permit suit by adults who were victims of enumerated federal offenses when they were minors, 1 by deleting "Any minor who is [a victim]" and adding "Any person, who, while a 12 Lewis 'rein., 3039 Owe Arum', Sun M0.Coconey Gaon. notion 11131 1 09/1212019 CONFPIDENTIAL Agency to Agency Requet: 19-411 SDNY_GM_00331550 EFTA_00204276 EFTA02729267  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 14 of 41 completion of a criminal action. See also 18 USC § 3509(k). H.R. Rep. 108-264(11), 108th Cong., 1st Sess. (2003), reprinted at 2003 WL 22272907, at *16-17 ("agency view" by the Department of Justice on bill later codified at 18 U.S.C. § 1595). The Department specifically argued to Congress in the clearest terms: "We believe that prosecutions should take priority over civil redress and that prosecutions should be complete prior to going forward with civil suits." Id. at 17 (emphasis added). Nowhere did the Department suggest that pending prosecutions warrant less protection (te., should be "hinder[ed]") simply because a particular civil plaintiff happens to reach his or her 18th birthday. 1 IV. A Stay is Mandatory Despite Resulting "Delay" to Civil Lawsuits. 1 Inherent in any § 3509(k) stay is delay to the progress (discovery, trial, appeal) of all related civil lawsuits. Congress recognized this in enacting the stay provision, which necessarily prioritized the interests of completing a criminal .1 investigation and prosecution over the interests of a particular plaintiff in seeking personal pecuniary damages. Based on this reasoning, the Francis II court specifically refused to provide any relief to plaintiffs "simply because the state [criminal] matter is not progressing as fast as they would hope." The court made I this determination despite the plaintiffs' complaints about the "frustrating delay" I and that "the state criminal case `has languished for almost two years with no end 14 I Lem:CA:Flinn 30$! Ours AVOW San MO. OX0NUTORM, FLORIDA 13in I 09/1212019 Agency to Agency Requet: 19-411 IDE TIAL CONFPIDEN SDNY_GM_00331551 EFTA_00204277 EFTA02729268  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 15 of 41 in sight,' finding that this "is a matter to be addressed in state [criminal) court." Id. Accordingly, the anticipated delay in this case, attendant to the term of the deferred-prosecution agreement, does not change the clear command of § 3509(k). According to her own pleadings, the plaintiff waited seven years before filing this lawsuit, Compl. ¶¶ 2,6, and so cannot rightfully claim prejudice from additional temporary delay. V. Section 3509 Aside, a Discretionary Stay is Warranted. Even, arguendo, were this Court not to apply the mandate of § 3509, a discretionary stay should still be entered during the pendency of the Federal Criminal Action. SEC v. HealtIzsouth Corp., 261 F. Supp. 2d 1298, 1326 (N.D. Ala. 2003) ("No question exists that this court has the power to stay a civil 1 proceeding due to an active, parallel criminal investigation."). Other federal statutes support such a stay -- particularly when the criminal action may be 1 adversely affected by the civil litigation. For example, under 18 U.S.C. .1 § 2712(e)(1), "the court shall stay any action commenced [against the United States] if the court determines that civil discovery will adversely affect the ability of the Government to conduct a related investigation or prosecution of a related 1 criminal case." Allowing this lawsuit to progress while Epstein remains subject to I the Federal Criminal Action will prejudice him irrevocably and irreparably. As 15 I 1-e-MOSTSinn JIM Game AVENUE. 51.171 340. Corowl GROvI,RONDA 33133 09/12/2019 age 3153 Agency to Agency Reguet: 19-011 I CONFIDENTIAL SDNY_GM_00331552 EFTA_00204278 EFTA02729269  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 16 of 41 provided below, there are several adverse effects to allowing this case to proceed while the Federal Criminal Action remains pending. In this lawsuit, Epstein has a right to defend himself. In the Federal Criminal Action, Epstein has a right against self-incrimination.4 Without a stay, Epstein will be immediately forced to abandon one of these rights. Should he choose his Fifth Amendment rights, he will expose himself to an adverse inference at the summary-judgment stage and at trial. See generally. Wehling v. Columbia Broad. Sys, 611 F.2d 1026, 1027 (5th Cir. 1980) (observing that "invocation of the privilege would be subject to the drawing of an adverse inference by the trier of fact"). On the other hand, should Epstein choose his right to defend himself in this lawsuit, the USAO will be able to use his responses at 1 every stage of the discovery and trial process (e.g., his Answer, responses to document requests, responses to requests for admissions, sworn answers to interrogatories, answers to deposition questions, and trial testimony) to his detriment in the Federal Criminal Action? I ' The privilege applies in "instances where the witness has reasonable cause to apprehend I danger" of criminal liability. Hoffman v. United States, 341 U.S. 479, 486 (1951). ' This could give the USAO a tremendous advantage in prosecuting Epstein in the Federal Criminal Action. See Comment, Using Equitable Powers to Coordinate Parallel Civil and Criminal Actions, 98 Han. L. Rev. 1023, 1026 (1985) (observing that "the prosecutor may have access to detailed civil depositions of the accused witnesses, while the rules of criminal procedure bar the accused from deposing the prosecutor's witnesses"). I 16 Le.NyA2E.ein I 3059G•AnD AvositSUm310.actaraurGitCen. ROMA %MI/ I 09/1212019 CONFIDENTIAL P Agency to Agency Requet: 19-411 SDNY_GM_00331553 EFTA 00204279 EFTA02729270  • Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 17 of 41 In this lawsuit, even before civil discovery begins, under the Initial Disclosures required by Fed. R. Civ. P. 26 and S.D. Fla. Local Rule 26.1, Epstein "must" disclose the identities of all the witnesses he would call in his defense to the Federal Criminal Action (Rule 26(aX I XAXi)), copies of "all documents" he "may use to support [his] defenses" (Rule 26(aX I XAXii)), as well as the identity of "any" expert witness he "may use at trial," along with mandatory disclosure of "a written report" containing "a complete statement of all opinions the [expert] will express and the basis and reasons for them" (Rule 26(aX2XA) and (BX0). In contrast, in the pending Federal Criminal Action, which is governed exclusively by the Federal Rules of Criminal Procedure, the USAO would not be entitled to compel pre-trial production of any of this information. See Fed. R. Cr. I P. 16(b)(1)(A), (C), and 16(bX2); United States v. Argomaniz, 925 F.2d 1349, 1355-56 (11th Cir. 1991) (explaining act-of-production privilege). l Thus, absent a stay of this civil action, the USAO would receive I fundamentally unfair access to defense information and highly prejudicial advance I insight into criminal defense strategy. See Comment, 98 Harv. L. Rev. at 1030 ("To the extent that a prosecutor acquires evidence that was elicited from the I accused in a parallel civil proceeding, the criminal process becomes less I adversarial."). I 17 I t eNcill:AWD-rt 3039 OWO AVMS, SUITE Mt COCOWr GROVS. FLOPS 3313) I 09/1212019 CONFIDENTIAL P Agency to Agency Requet: 19-411 SDNY_GM_00331554 EFTA 00204280 EFTA02729271  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 18 of 41 Without a stay in place, discovery will proceed, including against third parties. Mr. Epstein will have no alternative but to issue subpoenas seeking evidence from state and federal law-enforcement officers. For example, Epstein is clearly entitled to discover evidence of prior statements (including inconsistent statements) given by witnesses whom law-enforcement has previously interviewed. See, e.g., Cox v. Treadway, 75 F.3d 230 (6th Cir. 1996) (holding that district court 1 properly admitted testimony of prosecutor about prior inconsistent statements that 1 witness made to the prosecutor). Likewise, Epstein may be entitled to discovery of relevant evidence that is in the present possession of the grand jury or other law- 1 enforcement agencies. See, e.g., Simpson v. Hines, 729 F. Supp. 526, 527 (E.D. I Tex. 1989) ("The grand jury has concluded its deliberations . . . . The need for secrecy of these specific tapes no longer outweighs other concerns."); Golden Quality Ice Cream Co.. Inc. v. Deerfield Specialty Papers, Inc., 87 F.R.D. 53, 59 (E.D. Pa. 1980) ("[Wjhere, as here, the grand jury has completed its work and all I that is sought are those documents turned over to the grand jury by the corporations which are defendants in the civil case, the considerations . . . militating against disclosure are beside the point.") (citing Douglas Oil Co. of I Calif. v. Petrol Stops Nw., 441 U.S. 211 (1979)). I In response to such third-party subpoenas to law-enforcement witnesses, we I anticipate that it will be the government, not Mr. Epstein, who will object to 18 I LewisTein 3059 GitAkO AVW u1.Anrt34O.Caeuvr09on. Fkouo433131 09/12/2019 Agency to Agency Requet: 19-411 IDE TIAL IDEN CONFPa SDNY_GM_00331555 EFTA_00204281 EFTA02729272  Case 9:08-cv-80811-KAM Document 33 Entered on FLSD Docket 01/07/2009 Page 19 of 41 discovery in this civil case, until the final conclusion of the Federal Criminal Action. Conclusion Because this lawsuit arises from the same allegations as the Federal Criminal Action, this Court should stay this lawsuit until that action is no longer pending. •1 Respectfully submitted, LEWIS TEIN, P.L. 3059 Grand Avenue, Suite 340 Coconut Grove, Florida 33133 Tel: 305 442 1101 F • 305 26r. By: A. LEWIS Fla. Bar No. 623740 [email protected] MICHAEL R. TEIN Fla. Bar No. 993522 [email protected] 1 ATTERBURY, GOLDBERGER & WEISS, P.A. 250