EFTA00799888.pdf

Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 1 of 65 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 9:08-cv-80736-ICAM JANE DOE 1 AND JANE DOE 2, Petitioners, v. UNITED STATES, Respondent. JANE DOE 1 AND JANE DOE 2'S RESPONSE IN OPPOSITION TO THE GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT Jane Doe 1 and Jane Doe 2 (also referred to as - the victims"), by and through undersigned counsel, pursuant to Fed. R. Civ. P. 56 and Local Rule 56.1, file this response in opposition the Government's Cross-Motion for Summary Judgment (DE 401-2). In support, they state: I. INTRODUCTION As the victims explained in their motion for summary judgment (DE 361), the undisputed facts of this case show that for nine months, the Government and Epstein conspired to conceal a non-prosecution agreement (NPA) from Epstein's victims in order to prevent them from voicing any objection to the agreement. These facts constitute proof of clear violations of the Crime Victims' Rights Act (CVRA), warranting summary judgment on that point and moving the case forward to a consideration of what remedy is available for those violations. I EFTA00799888 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 2 of 65 The Government has now responded to the victims' summary judgment motion, arguing that the victims' summary judgment motion should be denied and even going so far as to contend that it is entitled to summary judgment on this case. DE 401-2. In a concurrently-filed pleading, the victims have responded to the Government's proposed "undisputed" facts. In this pleading, the victims explain why the Government is not entitled to summary judgment in this case. Indeed, as the victims argue in a separately-filed pleading replying in support of their motion for judgment, on several important issues they are entitled to summary judgment. In this response, the victims respond point-by-point to the Government's motion for summary judgment. Part II explains why, after the Government identified both Jane Doe I and Jane Doe 2 as "victims" of Epstein, they were entitled to the CVRA's protections. Part III explains why, on the facts of this particular case, they had a right to confer about the NPA. Part IV explains that the Government violated their right to confer about the NPA and about other important aspects of this case. Part V explains that the Government violated the victims' right to reasonable and accurate notice about Epstein's guilty pleas triggering the NPA. Part VI explains that the Government violated the victims' right to fair treatment. Part VII explains that the Government did not use its "best efforts" to protect the victims' rights as specified in the CVRA. Parts VIII and IX respond to the Government's arguments that the victims are somehow estopped from seeking relief from this Court. And Part X concludes by demonstrating that the Government is not entitled to summary judgment on any of these issues.' Summary judgment for the Government is also inappropriate at this time because the Court has not yet ruled on the victims' motion to compel additional discovery, filed on December 28, 2015. Of course, that discovery might provide an additional basis for disputing the Government's position. In addition, the victims have 2 EFTA00799889 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 3 of 65 Before turning to these particular issues, it is worth recalling the well-known standards for summary judgment. While the Government's summary judgment motion pays little attention to these standards, on a motion for summary judgment, "a party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Rodriguez v. City of Miami, Fla„ 907 F. Supp. 2d 1327, 1330 (S.D. Fla. 2012) (citing Fed. R. Civ. P. 56(c)(1)). Here, of course, the court has before cross-motions for summary judgment, one filed by the victims and one filed by the Government. In such circumstances, "A district court's disposition of cross-motions for summary . . . employs the same legal standards applied when only one party files a motion." Bellitto v. Snipes, No. 16-CV-61474, 2017 WL 2972837, at *7 (S.D. Fla. July 12, 2017) (citing United States v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984) ("Cross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed.") (quoting Bricklayers Intl Union, Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)). In evaluating cross motions, "[a] court must consider contemporaneously filed a Motion for finding of Waiver of Work Product and Similar Protections by the Government for the Production of Documents. Any consideration of the Government's Summary Judgment motion is premature until that motion has been resolved. 3 EFTA00799890 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 4 of 65 each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration." Bettina v. Snipes, No. 16-CV-61474, 2017 WL 2972837, at *7 (internal quotations omitted). II. LIKE OTHER CRIME VICTIMS, JANE DOE 2 IS ENTITLED TO THE PROTECTIONS OF THE CRIME VICTIMS RIGHTS ACT. Remarkably, as its lead substantive argument in this case, the Government chooses not to defend its conduct but rather to attack one of Epstein's child sex abuse victims. The Government contends that Jane Doe 2 demonstrated that she "did not want to be treated as a victim with rights provided by the CVRA." DE 401-2 at 3. The Government points to certain statements made by Jane Doe 2, while she was fearful of Epstein, as evidence of this fact. As a defense for its failure to afford Jane Doe 2 and Epstein's other victims their rights, the Government's argument is meritless. At the outset, it is important to understand that this CVRA action is brought on behalf of Jane Doe I, Jane Doe 2, and "many other young victims of [Epstein's] crimes." DE 9 at I. Even if the Government could somehow establish that it afforded Jane Doe 2 her rights, this case would still need to move forward with regard to other victims. But the Government never afforded Jane Doe 2 her rights. The Government paints a distorted factual picture of its interactions with Jane Doe 2, so it is important to review all of the interactions. A. Jane Doe 2 Was a "Victim" of Epstein and Entitled to the Protections of the CVRA. No dispute exists between the parties that from approximately 2002 to 2005, at the time when Jane Doe 2 was a minor, Epstein repeatedly sexually abused her. See DE 361-27 at ¶ 2 4 EFTA00799891 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 5 of 65 (declaration of Jane Doe 2). Jane Doe 2 has provided a declaration to that effect (DE 361-27), without contradiction from Epstein or the Government), and ample corroborating evidence exists on this point. Indeed, the fact that Epstein had sexually abused Jane Doe 2 was one of the first undisputed facts in the victims' motion for summary judgment — and the Government did not dispute this fact. Compare DE 361, Victims' Undisputed Fact 1 ("Between about 1999 and 2007, Jeffrey Epstein sexually abused more than 30 minor girls, including Jane Doe 1 and Jane Doe 2, at his mansion in Palm Beach, Florida .. . .") with DE 407, Gov't's Resp. to Undisputed Fact 1 ("Admitted"). As part of its investigation of Epstein's crimes, the Government later approached Jane Doe 2 in around September 2006. As the Government points out (DE 401-2 at 2), when it initially approached Jane Doe 2, she was concerned that the Government might try to prosecute her — rather than Epstein.2 As she explained — again, without contradiction from the Government — "[m]y son was very young when the FBI came to speak with me the first time. I did not know what to do and I was scared. . . . I believed that if I told the truth about what happened at Epstein's house, the police would take my baby from me. That made me really scared." Jane Doe 2 Decl., DE 361-27 at 19[3. 2 Jane Doe 2's concerns turned out to be well-founded. Not only did the Government never prosecute Epstein, but later in these proceedings the Government has suggested that Jane Doe 2 "may have been complicit in the offenses . . .. Specifically that [she, herself] procured additional young women for Mr. Epstein and [was] paid commissions or referral fees for it." Hrng. Tr. (Nov. 23, 2015) at 4 (statement of AUSA Lee). The Government later backed off from this assertion, perhaps recognizing that its "blame-the-victim" strategy conflicted with the Justice Department's other statements on combatting sex abuse and trafficking. Attorney General Eric H. Holder Jr. Delivers Remarks at Justice Department Event Marking National Slavery and Human Trafficking Prevention Month (Jan. 29, 2015) http:/Avww.justice.gov/opa/speech/attomey-general-eric-h- holder-jr-delivers-remarks-justice-department-event-marking. 5 EFTA00799892 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 6 of 65 Fearful and not knowing who else to turn to, Jane Doe 2 called Epstein, who told her not to worry and that he would hire a lawyer for her. Id. As the Government explains, it was this Epstein-paid attorney who arranged that the Government would not try to prosecute Jane Doe 2 for actions that Epstein might have forced to take. DE 401-2 at 2. Ultimately the Government interviewed Jane Doe 2 in April 2007 — months before the NPA was negotiated. During the course of that interview, Jane Doe 2 provided some statements that were favorable to Epstein. See id. at 2-3 (providing illustrations). The reason for these statements, presumably well understood by the Government's investigators, was that Jane Doe 2 "had been greatly intimidated, which is why [she] could not be truthful initially and [why she] wanted to end the threat of the possibility of [her] child being taken." Jane Doe 2 Decl., DE 361- 27 at 1 1 6. It is the belief of Jane Doe 2 that "the prosecutors knew the truth [about the sexual abuse of Jane Doe 2] because of the volume of evidence they had, and they continued to recognize me as a victim of Epstein's crimes." Id. at 1 1 5. The Government does not contest that assertion anywhere in its pleadings. Based on its inconclusive interview with Jane Doe 2 in April 2007, the Government contends that Jane Doe 2 has not carried her burden of showing of her status as a victim and her desire to consult with the prosecutor." DE 401-2 at 3 (order of clauses rearranged). But, as explained above, the Government does not deny that Jane Doe 2 was, in fact, a sex abuse victim of Epstein. Nor does the Government deny that it sent "victim" notification letters to Jane Doe 2, both before it negotiated the NPA and after. See, e.g., DE 407 at 12,11 93-95 (Gov't Resp. to Victims' Statement of Undisputed Facts) (conceding a victim notification letter was sent to Jane Doe 2 in Jan. 2008). As the Court is well aware, one of the victims' central claims in this case is 6 EFTA00799893 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 7 of 65 whether such victim notification letters improperly concealed the existence of the NPA from the victims. The Government concealed the NPA not only from other victims, but also from Jane Doe 2. The Government also artificially limits the period of time for which it claims that Jane Doe 2 was not cooperating with them. In particular, a careful review of the Government's summary judgment motion reveals the Government's position that Jane Doe has failed to establish a CVRA violation "during the period between the videotaped interview [i.e., April 2007] and the signing of the Non-Prosecution Agreement [i.e. September 2007]." DE 401-2 at 3. But, of course, this case involves far more than this narrow time period. For example, this case involves deceptive victim notification letters sent in January 2008 and incomplete notification in June-July 2008. With regard to those events, the Government makes no claim that Jane Doe 2 has failed to carry her burden of showing that she desired consultations and notifications. Presumably the reason for this is that it can make no such showing. For example, in June-July 2008, Jane Doe 2 was represented not by an Epstein-paid attorney, but rather by undersigned counsel (Bradley J. Edwards). At that point, through legal counsel, Jane Doe 2 was actively attempting to secure the prosecution of Epstein — and the Government was assiduously trying to conceal the agreement it had reached with Epstein. See DE 361 at 31-39; Edwards Aff. of Aug. 11, 2017, at 11 11-19. All of the Government's arguments about what Jane Doe 2 was doing back in April 2007 have no relevance to that time period. Jane Doe 2 has provided a fuller explanation of all of the relevant events than has the Government. As she attests in her declaration: 7 EFTA00799894 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 8 of 65 The more I thought about what was going on, the more I realized that what Epstein had done to both me and my friends was wrong and that anyone who is not very wealthy would be punished. At this time, I wanted Epstein held accountable the same way anyone else would be. I spoke about this with one of my friends around May 2008. I then called an attorney, Brad Edwards, around June 2008, understanding that he was hired to get the prosecutors to talk to us and hear the truth from me. That was especially important to me because I was finally represented by someone other than Epstein's attorney and wanted to talk to the prosecutors about everything I knew. The prosecutors had a lot of information revealing the truth about the situation of Epstein's house. I had a lot of information, too, because I was one of the young teenagers who had brought many other young teenagers to Epstein for the purpose of getting paid by Epstein. I wanted to assist the prosecutors in the investigation. I hired Mr. Edwards to let them know that I was cooperative and ready to tell them all of the helpful information I had. I understood that Mr. Edwards did that. I authorized Mr. Edwards to join me in the lawsuit against the U. S. Attorney's Office to enforce my rights and to try to get me my chance to confer with the prosecutors before Mr. Epstein took a plea or the case was resolved in any way. I just wanted to be treated fairly in the process. When Epstein pled guilty to a state crime at the end of June 2008, no one notified me that his plea had anything to do with my case against him. I did not know, for example, that this plea had some connection to a crime he committed against me particularly. In fact, at this young age, I had no idea what was going on and nobody tried to explain it me. DE 361-27 at 1-2 (paragraph numbering removed). Once again, the Government does not even discuss this important information from Jane Doe 2, much less show how it could possibly obtain summary judgment in the face of such statements conflicting directly with its assertions. B. Jane Doe 2's Actions Were Consistent with Actions of Other Sex Abuse Victims, As Recounted in the Scientific Literature on Victimization. Finally, notably lacking from the Government's pleadings is any suggestion that it ever really thought that Jane Doe 2 was not one of Epstein's victims. The Government was presumably well aware of the reasons why Jane Doe 2 was reluctant, at least initially, to fully cooperate with the Government. Jane Doe 2's behavior was, in fact, very consistent with that of 8 EFTA00799895 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 9 of 65 other victims of sex abuse, who suffer from a myriad of adverse psychological consequences as a result of the abuse. The available academic research shows that these consequences include wide-ranging symptoms of conditions such as depression, anxiety, dissociative disorder, somatoform disorder, sexual dysfunction and aggression. These kinds of psychological symptoms may delay or prevent a victim from seeking help or from self-identifying as having suffered abuse. See generally Bincy Wilson & Lisa D. Butler, Running a Gauntlet: A Review of Victimization and Violence in the Pre-entry, Post-entry, and Perilpost-exit Periods of Commercial Sexual Exploitation., 6 PSYCHOLOGICAL TRAUMA: THEORY, RESEARCH, PRACTICE, AND POLICY 494-504 (2013). It is common for sexual exploiters to lure young and disenfranchised individuals into their social circle. They then exploit the victims' vulnerabilities such as the need for love and affection to gain control over their victims, particularly with young women. See Kristin A. Hom & Stephanie J. Woods, Trauma and its Aftermath for Commercially Sexually Exploited Women as Told by Front-Line Service Providers, 34 ISSUES IN MENTAL HEALTH NURSING 75, 77 (2013). In such situations, the victim is commonly persuaded primarily through seduction, promises of material items or love, and a belief that the abuser is actually their "boyfriend." See Wilson & Butler, supra, at 497-98. Sexual exploiters may also charm victims into having or soliciting sex from others to maintain a friendly relationship and to distance the victim from any family or professional support. See id. The academic research also shows that sexual exploiters are also able to create a "pseudofamily" structure that imitates a real family unit, which capitalizes on attachment patterns that victims likely learned from their own families, and provides a measure of support that many of these victims are seeking. See Wilson & Butler, supra, at 498-99. Traffickers are 9 EFTA00799896 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 10 of 65 able to maintain control over their victims through violent and non-violent tactics. See Hom & Woods, supra, at 77. Non-violent tactics include, but are not limited to, manipulation, fear, incessant monitoring, threats, coercion, intimidation, and isolation. Id. Another method of control involves the significant bond that can develop between an exploiter and a victim. Id. Victims of sex trafficking often develop a relationship with their abuser that closely mirrors "Stockholm Syndrome." Stockholm Syndrome occurs when victims of hostage situations develop a positive bond with their captor. When victims of sex trafficking develop this sort of bond with their abusers, it can be difficult to obtain their cooperation in a case against the abuser because of the psychological manipulation tactics abusers employ to maintain control over their victims. Id. This bond can develop when factors such as perceived threat to survival, perceptions of kindness, isolation, and perceived inability to escape are present in the trafficker-victim relationship. See Shirley Julich, Stockholm Syndrome and Child Sexual Abuse, 14 JOURNAL OF CHILD SEXUAL ABUSE 107 (2005); Dee L. R. Graham, Edna I. Rawlings & Roberta K. Rigsby, LOVING TO SURVIVE: SEXUAL TERROR, MEN'S VIOLENCE, AND WOMEN'S DvEs (1994). For some sex trafficking victims, there is an overt threat to their survival, where the abuser has acted on threats of harm or has made very clear that they will act on those threats. For others, the threat to survival is more subtle, but no less impactful. Emotional abuse or threats of harm also constitute a threat to survival. Victims bond with their abusers as a survival mechanism, and when there is a perceived threat to survival, the bond strengthens. See Graham et al. supra; Julich, supra. Victims of sex trafficking also begin to perceive kindness differently as a result of the abuse they experience. Sexual exploiters often alternate from aggression and threats to 10 EFTA00799897 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 11 of 65 flattery, apologies, and positive attention as a means to exploit the vulnerabilities in their victims. Many victims believe that their abusers actually love them, which is perceived as kindness. This is the case between many exploiters and the women who are their victims. Victims may also minimize the abuse they've experienced by making statements like "at least he didn't..." and "it could have been worse." Over time, all victims of sex trafficking will likely interpret many small actions as demonstrations of kindness, which other individuals who have not been subjected to the same sort of trauma would not perceive that way. See Graham et al. supra; Julich, supra. On the surface, it may appear that a sex abuse victim is not isolated and should be able to seek help because they still have contact with people around them. However, the psychological manipulation tactics that sex traffickers and other abusers employ to prevent victims from disclosing their abuse, including threats, intimidation and coercion, usually result in victims becoming convinced that the abuse is their own fault; that no one will believe them if they disclose the abuse; and that they deserve the terrible treatment. So instead of being physically isolated from others, sex trafficking victims become psychologically isolated from every outside perspective and begin to see the world through only the perspective of their abuser. This sort of psychological isolation can be extremely difficult to alter once it has been ingrained in the victim See Graham et al. supra; Julich, supra. Victims of sexual exploitation also develop a perception that they cannot escape their abuse as a result of the aforementioned psychological manipulation tactics used by sex traffickers. See Graham et al. supra; Julich, supra. In sum, viewing the world through an abuser's perspective — that anyone who would be willing to help a victim is the enemy — leads victims to also believe that anyone who could help them is the enemy. This is how it is common for the abuser to become the "good guy" or hero in II EFTA00799898 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 12 of 65 a victim's mind. When sex trafficking victims have been through this sort of situation, it may take quite a while to change the warped perceptions they develop as a result of their abuse, and it may be extremely difficult to obtain the help of a victim in bringing justice against the trafficker. See Graham et al. supra; Julich, supra. Against this backdrop, Jane Doe 2's behavior is hardly unusual. And, more important for present purposes, the fact that she behaved in ways that are common for sex abuse victims hardly constitutes a basis for the Government to fail to provide her victims' rights. If Congress wanted, it could have drafted the CVRA with a provision in it requiring that victims cooperate with the Government as a precondition to receiving their rights. Congress did not add any such provision, presumably recognizing — as the academic research just summarized proves — that such an approach would strip many victims who are most in need of protection of their CVRA rights. Nothing that the Government describes in Jane Doe 2's behavior justifies a failure to provide her with her rights. Accordingly, the Government is not entitled to summary judgment with respect to Jane Doe 2's CVRA claims on the first argument that it advances. III. IN THE CIRCUMSTANCES OF THIS PARTICULAR CASE, THE VICTIMS HAD A RIGHT TO CONFER ABOUT THE NON-PROSECUTION AGREEMENT THAT BARRED FEDERAL PROSECUTION OF EPSTEIN FOR CRIMES COMMITTTED AGAINST THEM. The Government's next argument is that the victims had no right to confer about the non- prosecution agreement. DE 401-2 at 4-9. Here the Government's argument breaks into two pieces. The Government first argues that it had no obligation to tell the victims about the NPA. Id. at 4-6. The Government then argues, in some tension to its first argument, that a congressional amendment to the CVRA in 2015 retracted whatever authority might have 12 EFTA00799899 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 13 of 65 previously existed for such a right to confer. Id. at 6-9. Neither argument is correct — and certainly neither argument rests on an undisputed factual foundation that would provide a basis for summary judgment. We first review the relevant facts, which show deliberate actions by the Government to conceal the NPA; we then address the Government's legal claims, which lack any merit as well. A. Deliberately Concealing the Non-Prosecution Agreement from the Victims Violates their Right to Confer. In this section of its motion, the Government makes a primarily legal argument, essentially devoid of any factual component. In doing so, the Government erects a strawman. The Government characterizes the victims' position as being that the CVRA creates an obligation on the Government in all cases and in all circumstances to immediately inform crime victims whenever it enters into a non-prosecution agreement. The Government then argues that the CVRA does not create such a broad right. DE 401-2 at 4-9. The Government here mischaracterizes the victims' position. What the undisputed facts show is not merely a failure to notify the victims about the NPA, but a much broader conspiracy with Epstein to affirmatively conceal the NPA from the victims. See Part IV.A, infra; see also DE 361 at 19, 1 48 (undisputed fact proffered by the victims, without objection from the Government, noting Epstein's counsel was aware that "the Office was deliberately keeping the NPA secret from the victims and, indeed, had sought assurances to that effect."). While in some cases an issue might arise about how broadly to construe the Government's notification and conferral obligations in connection with a non-prosecution agreement, here there is no close call. However far such rights might ultimately be construed to reach, at a minimum it must surely 13 EFTA00799900 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 14 of 65 prevent the Government from "deliberately keeping secret" the most important aspect of the resolution of the case — i.e., an agreement by federal prosecutors not to prosecute Epstein and his co-conspirators from the numerous crimes that he had committed against the victims. To "confer" has standard dictionary definitions, such as: • "to hold conversation or conference now typically on important, difficult, or complex matters: compare views: take counsel: consult, deliberate." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 475 (1993). • "to compare views or take counsel: consult." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2006). • "to come together to take counsel and exchange views." Bryan A. Gamer, GARNER'S DICTIONARY OF LEGAL USAGE (3d ed. 2011). • "to hold a conference; to consult with one another." BLACK'S LAW DICTIONARY (10th ed. 2014). Clearly the Government did not "compare views" or "exchange views" on the NPA while it was "deliberately" keeping the agreement "secret" from the victims. To provide one straightforward example of a violation of the Government's conferral obligations, when attorney Bradley J. Edwards (representing Jane Doe 1 and Jane Doe 2) repeatedly called the Government in June 2008 to discuss federal prosecution of Epstein, rather than disclose the existence of the previously-filed NPA barring federal prosecution of Epstein, the Government concealed the existence of the NPA. See generally Edwards Aff. of Aug. 11, 2017 at 1 1 11-25. Clearly, at a minimum, the Government's claims that it afforded the victims their right to confer are heavily disputed in light of affidavit submitted by Mr. Edwards. As he explains in detail, he had a series of phone calls with the line prosecutor from mid-June through the next 14 EFTA00799901 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 15 of 65 several weeks. During those calls, the line prosecutor continually created the impression that no resolution of the case was imminent: During the telephone calls I had with Villafafia between mid and late June 2008, she never informed me that previously, in September 2007, the U.S. Attorney's Office had reached a non-prosecution agreement with Epstein. She never informed me that any resolution of the criminal matter was imminent at that time, nor even that such a resolution was being contemplated. In fact, Villafafia gave me the impression that the Federal investigation was on-going, very expansive, and continuously growing, both in the number of identified victims and complexity. I was never told, or even given the impression that any resolution of the case was looming; in fact, quite the opposite. The clear implication Villafafia gave me was that there was a major federal criminal investigation and that my client and I would be kept apprised at each phase. There was no doubt, and cannot be any dispute, that I was speaking with Villafafia on behalf of Jane Doe 1, and I told Villafafia Jane Doe 1 wanted to know what was going on with the federal case in which she had been cooperating. Edwards Affidavit of Aug. 11, 2017 at 'J 15. Moreover, at no point during any of these calls, did the line prosecutor ever inform the victims' attorney that any resolution was about to happen: [N]ever during any call up to this point did Villafafia inform me, or even give me the impression, that the federal investigation was at risk of closing. Nor did she inform me, or even give me the impression, that a deal of any sort had been reached at any point in the past or was imminent to be reached in the future. In fact, Villafafia gave me all indications that were exactly the opposite, while apologizing for not be able to share more information or answer many of my questions. During the course of my calls, it was indisputably known to Villafafia that I was calling on behalf of Jane Doe 1 and in later conversations Jane Doe 2 and another client. While Villafafia states in her affidavit that I did not ever inform her that Jane Doe 1 or Jane Doe 2 wanted to confer with her before any resolution was reached, that statement is misleading because while I never used those words it was clear in our conversations that the only reason we were talking was for the purpose of conferral and making sure that Jane Doe I stay informed on the case and be apprised of anything major in the case — especially a resolution. There was never a time when Villafafia even hinted that the federal case was potentially resolving, thus there was no reason to tell her specifically what she already knew from our conversations and from her meeting with Jane Doe 1 to be true — that Jane Doe I was cooperative and wanted to confer with 15 EFTA00799902 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 16 of 65 Villafafia before any resolution especially given that Jane Doe 1 had been led to believe she was going to be testifying in a federal trial. Id. ati 16. Later, when the line prosecutor called the victims' attorney about the State guilty pleas that Epstein was about to enter, the line prosecutor never told the attorney "that there was a NPA or any resolution to the federal case, that the state plea would somehow resolve the many federal crimes uncovered and expected to be charged federally. Indeed, the only message she conveyed directly to me was that the federal investigation was continuing and Jane Doe 1 and other identified victims would remain informed." Id. at ¶ 18. Most remarkably, even after Epstein had pled guilty — triggering and finalizing the NPA's operation — the line prosecutor continued to create the false impression that a federal prosecution was still a possibility: After the June 30, 2008 plea, (perhaps on July 3, 2008 as Villafafia recollects) I contacted Villafafia to discuss how the state case had been resolved and the next stages of the federal prosecution. I started to get the sense during this call that the Office was beginning to negotiate with Epstein with respect to the federally identified crimes. I explained in detail, on behalf of my clients, why I felt it was essential to the preservation of full justice that any federal plea offer be sufficiently harsh to fit the extensive sex abuse crimes that the evidence demonstrated Epstein had committed. She did not tell me, or even give any indication, that her Office had already signed an NPA with Epstein; nor did she tell me that the federal investigation was already closed or resolved. In fact, even at this stage after the state plea, the indication was the opposite, although for the first time I was made to believe federal plea negotiations had commenced and a resolution could be reached shortly. I took time to write and send a letter to Villafafia's attention on July 3, 2008, expressing the same feelings I had already expressed during our post-state-plea telephone call. Id. atJ 19. 16 EFTA00799903 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 17 of 65 Whatever else might be said about the Government's actions,; it clearly is disputed whether the Government reasonably conferred with the victims by "compai[ing] views or tak[ing] counsel: consult[ing]." Merriam-Webster's Collegiate Dictionary (11th ed. 2006). Indeed, it is hard to reach any other conclusion but that the Government obviously did not "confer" with the victims by exchanging views on the NPA, but instead (as it admits) "kept secret" this pivotal event in the case. See DE 361 at 19, 1 48 (undisputed fact to this effect). The limited finding that the Court needs to make to deny summary judgment is not that the Government had to rush out and notify the world about the NPA, but rather that when an attorney representing the victims asks about how to secure federal prosecution of Epstein, the Government may not "deliberately keep secret" the existence of an agreement it has negotiated to prevent such prosecution. Such a finding is fully supported by the undisputed facts agreed to by the Government, not to mention numerous disputed facts proffered by the victims. See generally Edwards Affidavit of Aug. II, 2017, at In 11-25. To the extent that there is any ambiguity in the plain language, the CVRA's legislative history full confirms this plain language understanding to the right to confer. The CVRA's Senate sponsors — Senator Kyl and Senator Feinstein — held a colloquy on the Senate floor explaining the meaning of the Act shortly before the Senate voted on it. See 150 CONG. REC. S3607 (daily ed. Apr. 22, 2004). They specifically explained that the provision seemed from the recognition that it "is important that the victim be able to confer with the prosecutor concerning a variety of matters and proceedings." Id. (statement of Senator Feinstein, agreed with by Senator 3 In their contemporaneously-filed motion for partial summary judgment, the victims explain why the Government's actions so clearly violated the victims' right to confer that summary judgment in their favor is appropriate. 17 EFTA00799904 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 18 of 65 Kyl). As to how the right was to be construed, the Senate sponsors explained: "This right is intended to be expansive. For example, the victim has the right to confer with the Government concerning any critical stage or disposition of the case." Id. (statement of Senator Feinstein, agreed with by Senator Kyl) (emphasis added). Of course, none of this comes as a surprise to this Court. Remarkably, while the Government claims that it has complied with its conferral obligations, it nowhere discusses this Court' earlier rulings about what those conferral obligations include. In particular, this Court has already addressed — and rejected — the Government's position that it had no conferral obligations in connection with the non-prosecution agreement. As this Court held: [T]he court concludes that the "reasonable right to confer . . . in the case" guaranteed by the CVRA at § 3771(a)(5) is properly read to extend to the pre- charge stage of criminal investigations and proceedings, certainly where — as here — the relevant prosecuting authority has formally accepted a case for prosecution. The case law and legislative history of the statute support such an expansive reading of the statutory mandate.. . 150 Cong. Rec. S2460, 54268 (daily ed. Apr. 22, 2004) (statement of Sen. Feinstein) (explaining that the right to confer was "intended to expansive," applying to "any critical stage or disposition of the case") . . . United States Department of Justice, Attorney General Guidelines for Victim and Witness Assistance 30 (2005) ("Responsible officials should make reasonable efforts to notify identified victims of, and consider victims' views about, prospective plea negotiations"). In short, there is no logical reason to treat a "non-prosecution agreement" which the government employs to dispose of contemplated federal charges any differently from a "plea agreement" employed to dispose of charged offenses in interpreting remedies available under the CVRA. Where the statute expressly contemplates that a "plea" may be set aside if entered in violation of CVRA conferral rights, it necessarily contemplates that a "non-prosecution" agreement may be set aside if entered in violation of the government's conferral obligations. Thus, in their petition and supplemental pleadings, Jane Doe I and 2 have identified a remedy which is likely to redress the injury complained of — the setting aside of the no-prosecution agreement as a prelude to the full unfettered exercise of their conferral rights at a time that will enable the victims to exercise those rights meaningfidly 18 EFTA00799905 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 19 of 65 Nor is the court persuaded by the government's "futility" argument, derived from its stated perception that the United States Attorney's Office for the Southern District of Florida . . . would be constrained to honor the terms of the September 24, 2007 agreement even if the court were to set it aside and order the government to confer with the victims before reaching a final charging decision. DE 189 at 8-10 (emphasis added). This ruling is now the "law of the case" and, under the law of the case doctrine, "a court should not reopen issues decided in earlier stages of the same litigation." Pines Properties, Inc. v. Am. Marine Bank, No. 00-8041-CIV, 2003 WL 25729925, at *2 (S.D. Fla. June 24, 2003) (citing Agostini v. Felton, 521 U.S. 203, 236 (1997). See also U.S. v. Excobar—Urrego, 110 F.3d 1556, 1560 (11th Cir.1997) (finding that under this doctrine, an issue is binding throughout a case when it has been decided earlier in that same case). B. Congress' 2015 Amendment of the CVRA Does Not Retroactively Validate the Government's Concealment of the NPA. In an effort to deflect responsibility for its deliberate concealment of the non-prosecution agreement, the Government points to a statute that Congress enacted in 2015 in response to the Government's CVRA violations in this very case. In 2015, Congress amended the CVRA to a new subsection, 18 U.S.C. § 3771(a)(9), which provides that victims have "[t]he right to be informed in a timely manner of any plea bargain or deferred prosecution agreement." Section 113(a), Pub. L. No. 114-22, 129 Stat. 227 (May 29, 2015). According to the Government, this statute operates retroactively to prove that it did not need to inform the victims of Epstein's non- prosecution agreement. To support its argument, the Government relies on the presumption "that Congress intends to change the law when it enacts amendments." DE 401-2 at 8 (citing Bailey v. United States 52 Fed. Cl. 105, 110 (2002)). According to the Government, the fact that Congress 19 EFTA00799906 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 20 of 65 specifically added a right for victims to be informed about NPAs in 2015 means that no such right existed in 2008. It takes quite a bit of chutzpah for the Government to point to legislation specifically designed to overrule some its legal arguments in this case as a basis for prevailing in this case. And, in any event, the Government's argument is without merit. In an attempt to make its argument seem plausible, the Government (once again) erects a strawman. The Government starts its argument by asserting that it "disagrees with [the victims'] implicit assertion that a victim's statutory `right to confer' is a right to be notified.' DE 401-2 at 4. But while the CVRA may indeed create a right to be notified about important developments in a case, here the Court need only rule on a much more limited and fact-specific argument: that in the context of this case, the Government's actions in concealing the NPA from the victims violated the victims' right to confer. The Government does not fully explain the background leading up to this 2015 amendment. Congress has long had an eye on the Government's extraordinary limiting interpretations of its CVRA obligations in this and other cases. For example, CVRA co-sponsor Senator Kyl wrote two letters in 2011 to Attorney General Holder, specifically raising questions about the Department's refusals to follow the CVRA by conferring with victims on agreements reached with defendants before the filing of criminal charges. Senator Kyl's letter to the Attorney General explained that "Congress intended the CVRA to broadly protect crime victims throughout the criminal justice process - from the investigative phases to the final conclusion of a case." 157 CoNG. REC. S7060-01 (daily ed. Nov. 2, 2011). Senator Kyl then reviewed court decisions rejecting the Government's position that the CVRA applied only after the formal filing 20 EFTA00799907 Case 9:08-cv-80736-KAM Document 416 Entered on FLSD Docket 08/11/2017 Page 21 of 65 of federal criminal charges, including this Court's ruling that the CVRA protects victims before filing of charges: The most recent court decision to carefully review the Justice Department's position is Jane Does #1 and #2 v. United States, No. 08-80736-CIV- MARRA/JOHNSON (S.D. Fla. Sept. 26, 2011). In that case, the court flatly rejected the Department's claim that rights attach only after charges are formally filed: The Court first addresses the threshold issue whether the CVRA attaches before the government brings formal charges against the defendant. The Court holds that it does because the statutory language clearly contemplates pre-charge proceedings. For instance, subsections (a)(2) and (a)(3) provide rights that attach to "any public court proceeding