EFTA00182748.pdf

Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, CASE NO.: 08-CV-80119-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 3, CASE NO.: 08-CV-80232-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN Defendant. CASE NO.: 08-CV-80380-MARRALJOHNSON JANE DOE NO. 4, Plaintiff, vs. JEFFREY EPSTEIN Defendant. CASE NO.: 08-CV-8038I-MARRA/JOHNSON JANE DOE NO. 5, Plaintiff, JEFFREY EPSTEIN, Defendant. EFTA00182748 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 2 of 8 Doe 101 v. Epstein Page 2 JANE DOE NO. 6, CASE NO.: 08-80994-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 08-80993-CIV-MARRA/JOHNSON JANE DOE NO. 7, Plaintiff, JEFFREY EPSTEIN Defendant. CASE NO.: 08-80811-CIV-MARRAJJOHNSON Plaintiff, JEFFREY EPSTEIN Defendant. JANE DOE, CASE NO.: 08-80893-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. DOE II, CASE NO.: 09-80469-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. EFTA00182749 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 3 of 8 Doe 101 v. Epstein Page 3 JANE DOE NO. 101, CASE NO.: 09-80591-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN Defendant. JANE DOE NO. 102, CASE NO.: 09-80656-CIV-MARRAMOHNSON Plaintiff, JEFFREY EPSTEIN, Defendant. DEFENDANT EPSTEIN'S RESPONSE TO PLAINTIFFS JANE DOE NOS. 101 AND 102'S MOTION FOR LEAVE TO FILE UNDER SEAL RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO STAY OR, IN THE ALTERNATIVE, TO UNSEAL THE NONPROSECUTION AGREEMENT (dated 5/29/09, IDE 1281 Defendant, JEFFREY EPSTEIN, ("EPSTEIN"), by and through his undersigned attorneys responds to the Plaintiffs' Jane Doe No. 101 and Jane Doe No. 102 ("Plaintiffs") Motion For Leave To File Under Seal Response In Opposition To Defendant's Motion To Stay Or, In The Alternative, To Unseal The Nonprosecution Agreement, and states: 1. This Court has already entered orders preserving the confidentiality of the Non- Prosecution Agreement ("NM") and denying prior attempts to have the document unsealed. See Court's Orders, attached hereto as Exhibit A and Exhibit B, respectively, entered in In Re: Jane Does 1 and 2. Petitioners Case No. 08-80736-CIV-MARRA/JOHNSON, A. Order To Compel Production And Protective Order, [DE 26], dated August 21, 2008, and B. Order [DE 36], dated February 12, 2009, on Petitioners' Motion To Unseal Non-Prosecution Agreement [DE 28]. Both of these Orders are clear that the terms of the NPA are to remain confidential and remain EFTA00182750 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 4 of 8 Doe 101 v. Epstein Page 4 protected from being disclosed to third parties. The NPA is an agreement between the United States Attorney's Office and EPSTEIN. Plaintiffs' motion presents nothing in support of this Court modifying its prior orders. 2. Significantly, even the United States Attorney's Office (USAO), along with Defendant, has strongly opposed making the NPA public. Attached as Exhibit C hereto is Respondent United States of America's Opposition To Victims' Motion To Unseal Non- Prosecution Agreement, dated October 8, 2008, [DE 29], also filed in In Re: Jane Does 1 and 2, Petitioners, Case No. 08-80736-CIV-MARRA/JOHNSON. In opposing the petitioners' attempts to make public the terms of the NPA, the United States in the Response, Exhibit C, stated: Since the Agreement (NPA) has not been filed under seal with this Court, the legal authority cited by petitoners regarding sealing of documents, United States v. Ochoa-Vasque, 428 F.3d 1015 (11th Cir. 2005), is inapposite. The parties who negotiated the Agreement, the United States Attorney's Office and Jeffrey Epstein, determined the Agreement should remain confidential. They were free to do so, and violated no law in making such an agreement. Since the Agreement has become relevant to the instant lawsuit, petitioners have been given access to it, upon the condition that it not be disclosed further. Petitioners have no legal right to disclose the Agreement to third parties, or standing to challenge the confidentiality provision. After the United States' response, Exhibit C, this Court entered its Order, Exhibit B, agreeing with the United States' position and maintaining the confidentiality of the NPA in accordance with its prior Order, Exhibit A. The "victims" who were provided a copy of the NPA were and are required to maintain the NPA's confidentiality and not disclose the terms to third parties. 3. Other parties in the consolidated cases have been able to file their responses without a similar request being made. Defendant believes that these Plaintiffs can fully respond without the need to file under seal; and reference provisions generally. However if the Court is EFTA00182751 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 5 of 8 Doe 101 v. Epstein Page 5 NPA inclined to grant this Order, then in order to continue to protect the confidentiality of the agree and to comply with the Court's prior Orders, Exhibit A and Exhibit B, Defendant would to allow Plaintiff to file under seal ligl• response and reference only those portions (identified herein) of the NPA which are potentially relevant to the issues arising under claims brought pursuant to 18 U.S.C. §2255 and thus, that may have impact on Defendant's motion for stay and Plaintiff's response thereto. Specifically, the only portions relevant for this Court to make a decision on Defendant's motion and Plaintiffs' response are paragraphs 7, 8, 9, and10 of the NPA, and paragraphs 7A, 7B, and 7C of the Addendum To The NPA. WHEREFORE, Defendant requests that this Court enter an Order denying any attempts by Plaintiffs to unseal or make public or to disclose to third parties the terms of the NPA, and to deny Plaintiffs move to file their response under seal; or if the Court is inclined to grant the motion, to allow Plaintiff to file her response to the motion to stay and only the specified portions of the NPA and Addendum thereto under seal. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the following Service List in the manner specified by CM/ECF on this 10th day of June , 2009 Respectfully sub tted, By: ROBERT D. R1TTON, JR., ESQ. Florida Bar MICHAEL J. PIKE, ESQ. BURMAN, CROTON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 West Palm Beach, FL 33401 EFTA00182752 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 6 of 8 Doe 101 v. Epstein Page 6 Phone Fax (Counselfor Defendant Jeffrey Epstein) EFTA00182753 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 7 of 8 Doe 101 v. Epstein Page 7 Certificate of Service Jane Doe No. 2 v. Jeffrey Epstein Case No. 08-CV-80119-MARRA/JOHNSON Stuart S. Mermelstein, Esq. Brad Edwards, Esq. Adam D. Horowitz, Esq. Rothstein Rosenfeldt Adler Mermelstein & Horowitz, P.A. 401 East Las Olas Boulevard 18205 Biscayne Boulevard Suite 1650 Suite 2218 Fort Laud rdal F1.33301 Miami FL 3 160 Phon • Fax: ssmasexabuseattomev.com Counsel for Plaintiff in Related Case No. 08- 80893 Counsel for Plaintiffs in Related Cases Nos. 08-80069, 08-80119, 08-80232, 08-80380, 08- 80381, 08-80993, 08-80994 Paul G. Cassell, Esq. Pro Hac Vice Richard Horace Willits, Esq. 332 South 1400 E, Room 101 Richard H. Willits, P.A. Salt T. aka City, UT 84112 2290 10ib Avenue North Suite 404 Lake Worth. FL 33461 Co-counselfor PlaintiffJane Doe Fax: Counsel for Plaintiff in Related Case No. 08- Isidro M. Garcia, Esq. 80811 Garcia Law Firm, P.A. 224 Datura Street, Suite 900 ch, FL 33401 Jack Scarola, Esq. Jack P. Hill, Esq. Scatty Denney Scarola Barnhart & Shipley, Counsel for Plaintiff in Related Case No. 08- P.A. 80469 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Robert C. Josefsberg, Esq. Katherine W. Ezell, Esq. Podhurst Orseck, P.A. 25 West Hagler Street, Suite 800 130 Counselfor Plaintiff, EFTA00182754 Case 9:08-cv-80119-KAM Document 152 Entered on FLSD Docket 06/10/2009 Page 8 of 8 Doe 101 v. Epstein Page 8 Bruce Reinhart, Esq. Bruce E. Reinhart, P.A. Counsel for Plaintiffs in Related Cases Nos. 250 S. Australian Avenue 09-80591 and 09-80656 Suite 1400 West Palm Beach, FL 33401 Jack Alan Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 Counselfor Defendan Beach, FL 33401-5012 Theodore J. Leopold, Esq. Spencer T. Kuvin, Esq. Ricci-Leopold, P.A. Counselfor Defendant Jeffrey Epstein 2925 PGA Blvd., Suite 200 Palm Beach Gardens, FL 33410 Fax: Counsel for Plaintiff in Related Case No. 08- 08804 EFTA00182755 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 1 of 10 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CV-80993-MARRA-JOHNSON JANE DOE NO. 7 Plaintiff, v. JEFFREY EPSTEIN, Defendant. DEFENDANT EPSTEIN'S FIRST AMENDED ANSWER & AFFIRMATIVE DEFENSES TO PLAINTIFF'S (FIRST) AMENDED COMPLAINT Defendant, JEFFREY EPSTEIN, (hereinafter "EPSTEIN"), by and through his undersigned attorneys, files his Answer to Plaintiff's Amended Complaint [DE 19] and states: 1. Without knowledge and deny. 2. As to the allegations in paragraphs 2, Defendant asserts his Fifth Amendment privilege against self-incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 41" DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - lilt would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self- Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. - EFTA00182756 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 2 of 10 Jane Doe No. 7 v: Epstein Page 2 "... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self-incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 3. As to the allegations in paragraph 3, deny. 4. As to the allegations in paragraph 4, deny. 5. As to the allegations in paragraph 5, without knowledge and deny. 6. As to the allegations in paragraphs 6, Defendant asserts his Fifth Amendment privilege against self-incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983) Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "pit would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self- Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. — .. a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self-incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. EFTA00182757 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 3 of 10 Jane Doe No. 7 v. Epstein Page 3 7. As to the allegations in paragraphs 7 through 15 of Plaintiff's Second Amended Complaint, Defendant exercises his Fifth Amendment Privilege against self- incrimination. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self- Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[lit would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self-incrimination), because affirmative defenses do not constitute the kind of voluntary application for affirmative relief' which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 8. In response to the allegations of paragraph 16, Defendant realleges and adopts his responses to paragraphs 1 through 15 of the Second Amended Complaint set forth in paragraphs 1 through 7 above herein. 9. Defendant asserts the Fifth Amendment Privilege against self-incrimination to the allegations set forth in paragraphs 17 through 22 of the Second Amended Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 41" DCA 1983); Malloy v. Hogan 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination EFTA00182758 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 4 of 10 Jane Doe No. 7 v. Epstein Page 4 Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - `lilt would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. —"... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self- incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief' which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 10. In response to the allegations of paragraph 23, Defendant realleges and adopts his responses to paragraphs 1 through 15 of the Second Amended Complaint set forth in paragraphs 1 through 7 above herein. 11. Defendant asserts the Fifth Amendment Privilege against self-incrimination to the allegations set forth In paragraphs 24 through 28 of the Second Amended Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[i]t would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court.")• 5 Fed.Prac. & Proc. Civ. 3d EFTA00182759 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 5 of 10 Jane Doe No. 7 v. Epstein Page 5 §1280 Effect of Failure to Deny — Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants in civil actions. —"... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self- incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. 12. In response to the allegations of paragraph 29, Defendant realleges and adopts his responses to paragraphs 1 through 15 of the Second Amended Complaint set forth in paragraphs 1 through 7 above herein. 13. Defendant asserts the Fifth Amendment Privilege against self-incrimination to the allegations set forth in paragraphs 30 through 35 of the Second Amended Complaint. See DeLisi v. Bankers Ins. Company, 436 So.2d 1099 (Fla. 4th DCA 1983); Malloy v. Hogan, 84 S.Ct. 1489, 1495 (1964)(the Fifth Amendment's Self-Incrimination Clause applies to the states through the Due Process Clause of the Fourteenth Amendment - "[I]t would be incongruous to have different standards determine the validity of a claim of privilege based on the same feared prosecution, depending on whether the claim was asserted in state or federal court."); 5 Fed.Prac. & Proc. Civ. 3d §1280 Effect of Failure to Deny - Privilege Against Self-Incrimination ("...court must treat the defendant's claim of privilege as equivalent to a specific denial."). See also 24 Fla.Jur.2d Evidence §592. Defendants In civil actions. — "... a civil defendant who raises an affirmative defense is not precluded from asserting the privilege [against self- EFTA00182760 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 6 of 10 Jane Doe No. 7 v. Epstein Page 6 incrimination], because affirmative defenses do not constitute the kind of voluntary application for affirmative relief" which would prevent a plaintiff bringing a claim seeking affirmative relief from asserting the privilege. WHEREFORE, Defendant requests that this Court deny the relief sought by Plaintiff. Affirmative Defenses 1. As to all counts, Plaintiff actually consented to and was a willing participant in the acts alleged, and therefore, her claims are barred, or her damages are required to be reduced accordingly. 2. As to all counts alleged, Plaintiff actually consented to and participated in conduct similar and/or identical to the acts alleged with other persons which were the sole or contributing cause of Plaintiffs alleged damages. 3. As to all counts, Plaintiff impliedly consented to the acts alleged by not objecting and by going to Defendant's home with other females and/or by bringing other females to Defendant's home for which Plaintiff received money; and therefore, her claims are barred, or her damages are required to be reduced accordingly. 4. As to all counts, Defendant reasonably believed or was told that the Plaintiff had attained the age of 18 years old at the time of the alleged acts. 5. As to all counts, Plaintiff's claims are barred as she said she was 18 years or older at the time. 6. As to all counts, Plaintiff's alleged damages were caused in whole or part by events and/or circumstances completely unrelated to the incident(s) alleged in the complaint. EFTA00182761 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 7 of 10 Jane Doe No. 7 v. Epstein Page 7 7. Plaintiff's claims are barred by the applicable statute of limitations. 8. As to Plaintiff's claims for punitive damages in Count I — "Sexual Assault & Battery," and Count II — "Intentional Infliction of Emotional Distress," such claims are subject to the limitations as set forth in §768.72, et seq., Florida Statutes. 9. As to Plaintiff's claims for punitive damages in Count I — "Sexual Assault & Battery," and Count II — "Intentional Infliction of Emotional Distress," such claims are subject to the constitutional limitations and guideposts as set forth in BMW of North America v. Gore, 116 S.Ct 1589 (1996)• Philip Morris USA v. Williams, 127 S.Ct. 1057 (2007)• State Farm v. Campbell, 123 S.Ct 1513 (2003); Engle v. Ligget Group, Inc., 945 So.2d 1246 (Fla. 2006). The Due Process Clause of the Fourteenth Amendment of the United States Constitution and Florida's Constitution, Art. I, §§2 and 9, prohibit the imposition of grossly excessive or arbitrary punishments 10.As to Plaintiffs claims for punitive damages in Count I — "Sexual Assault & Battery," and Count II — "Intentional Infliction of Emotional Distress," the determination of whether or not Defendant is liable for punitive damages is required to be bifurcated from a determination of the amount to be imposed. 11. Plaintiff has failed to state a cause of action for sexual assault and/or battery under Count I. 12.As to Count III, Plaintiff has failed to plead a cause of action as she does not and can not show a violation of a predicate act under 18 U.S.C. §2255 (2005). EFTA00182762 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 8 of 10 Jane Doe No. 7 v. Epstein Page 8 13.As to Count III, the version of 18 U.S.C. §2255 in effect at the time of the alleged conduct applies, and, thus, the presumptive minimum damages amount should Plaintiff prove the elements of such claim Is $50,000, and not subject to any multiplier. 14.As to Count III, application of the amended version of 18 U.S.C. §2255, effective July 27, 2006, would be in violation of the legal axiom against retroactive application of an amended statute, and also In violation of such constitutional principles, including but not limited to, the "Ex Post Facto" Clause, U.S. Const. Article I, §9, cl. 3, §10, cl. 1, and procedural and substantive due process, U.S. Const. 14th Amend., 5th Amend. The statute in effect during the time of the alleged conduct applies. 15.As to Count III, application of the amended version of 18 U.S.C. §2255, effective July 27, 2006, is prohibited pursuant to the vagueness doctrine and the Rule of Lenity. A criminal statute is required to give " 'fair warning ... in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear.' " United States v. Lanier, 520 U.S. 259, 265, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (quoting McBovle v. United States 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931)) (omission in original). The "three related manifestations of the fair warning requirement" are: (1) the vagueness doctrine bars enforcement of a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application; (2) the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered; (3) due process bars courts from EFTA00182763 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 9 of 10 Jane Doe No. 7 v. Epstein Page 9 applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope. 16. The applicable version of 18 U.S.C. §2255 creates a cause of action on behalf of a "minor." Plaintiff had attained the age of majority at the time of filing this action, and accordingly, her cause of action is barred. 17.Because Plaintiff has no claim under 18 U.S.C. §2255, this Court is without subject matter jurisdiction as to all claims asserted. 18.Application of the 18 U.S.C. §2255, as amended, effective July 27, 2006, is in violation of the constitutional principles of due process, the "Ex Post Facto" clause, and the Rule of Lenity, in that in amending the term "minor to "person" as to those who may bring a cause of action impermissibly and unconstitutionally broadened the scope of persons able to bring a §2255 claim. 19. 18 U.S.C. §2255 violates the Equal Protection Clause of the 14'h Amendment under the U.S. Constitution, and thus Plaintiff's claim thereunder is barred. 20. 18 U.S.C. §2255 violates the constitutional guarantees of procedural and substantive due process. Procedural due process guarantees that a person will not be deprived of life, liberty or property without notice and opportunity to be heard. Substantive due process protects fundamental rights. Accordingly, Plaintiffs cause of action thereunder is barred. WHEREFORE Defendant requests that this Court deny the lief sought by Plaintiff. Robert D. ritton, Jr. Attorney f. r Defendant Epstein EFTA00182764 Case 9:08-cv-80993-KAM Document 86 Entered on FLSD Docket 06/10/2009 Page 10 of 10 Jane Doe No. 7 v. Epstein Page 10 Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of recorthidentified on the following Service List in the manner specified by CM/ECF on this ur Tay of1444-..-•, 2009: Stuart S. Mermelstein, Esq. Jack Alan Goldberger Adam D. Horowitz, Esq. Atterbury Goldberger & Weiss, P.A. Mermelstein & Horowitz, P.A. 250 Australian Avenue South 18205 Biscayne Boulevard Suite 1400 Suite 2218 ach, FL 33401-5012 Co-Counsel for Defendant Jeffrey Epstein Counsel for Plaintiff Jane Doe #7 Respectfully submi d, By: ROBERT D. RITTON, JR., ESQ. Florida Bar o. MICHAEL J. PIKE ESQ. Florida Bar BURMAN, CRIl TON, LUTTIER & COLEMAN 515 N. Flagler Drive, Suite 400 ach, FL 33401 Phone Fax (Co-Counsel for Defendant Jeffrey Epstein) EFTA00182765 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 1 of 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA JANE DOE NO. 2, CASE NO.: 08-CV-80119-MARRA/JOHNSON Plaintiff, vs. JEFFREY EPSTEIN Defendant. JANE DOE NO. 3, CASE NO.: 08-CV-80232-MARRA/JOHNSON Plaintiff; vs. JEFFREY EPSTEIN Defendant. CASE NO.: 08-CV-80380-MARRAJJOHNSON JANE DOE NO. 4, Plaintiff, vs. JEFFREY EPSTEIN Defendant. CASE NO.: 08-CV-80381-MARRA/JOHNSON JANE DOE NO. 5, EFTA00182766 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 2 of 13 Doe 101 v. Epstein Page 2 Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 08-80994-CIV-MARRAJJOHNSON JANE DOE NO. 6, Plaintiff, JEFFREY EPSTEIN, Defendant. CASE NO.: 08-80993-CIV-MARRA/JOHNSON JANE DOE NO. 7, Plaintiff; JEFFREY EPSTEIN Defendant. CASE NO.: 08-80811-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN Defendant. JANE DOE, CASE NO.: 08-80893-CIV-MARRAJJOHNSON EFTA00182767 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 3 of 13 Doe 101 v. Epstein Page 3 Plaintiff, JEFFREY EPSTEIN et al, Defendants. DOE II, CASE NO.: 09-80469-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN et al, Defendants. JANE DOE NO. 101, CASE NO.: 09-80591-CIV-MARRA-JOHNSON Plaintiff, JEFFREY EPSTEIN Defendant. JANE DOE NO. 102, CASE NO.: 09-80656-CIV-MARRA/JOHNSON Plaintiff, JEFFREY EPSTEIN, Defendant. DEFENDANT, JEFFREY EPSTEIN'S REPLY TO JANE DOE NO. 101 AND JANE DOE NO. 102'S RESPONSE IN OPPOSITION TO MOTION TO COMPEL AND IDENTIFY JANE DOE NUMBERS 101 AND 102 IN THIRD PARTY SUBPOENAS FOR PURPOSES OF DISCOVERY EFTA00182768 Cate 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 4 of 13 Doe 101 v. Epstein Page 4 Defendant, Jeffrey Epstein, ("Mr. Epstein"), by and through his undersigned attorneys, hereby files his Reply To Jane Doe No. 101 And Jane Doe No. 102's Response In Opposition To Motion To Compel and Identify Jane Doe Numbers 101 and 102 in Third Party Subpoenas For Purposes of Discovery: 1. Plaintiffs' Response in Opposition is set forth in DE 124. Plaintiffs' response is drafted in a calculated effort to continue to argue issues relating to 18 U.S.C. 2255 rather than deal solely with the issue of identification of the Plaintiffs. Obviously, Plaintiffs' identification takes a second seat to Plaintiffs' attempt to continue to argue issues that are or may be set forth in their opposition to Epstein's motion to dismiss, which largely deals with issues surrounding 18 U.S.C. 2255. See Defendant's Motion to Identify Jane Doe 101 [DE 16]. 2. In their response, Plaintiffs seem to forget that they brought this lawsuit against Epstein. Plaintiffs claim they will suffer physical injury, pain and suffering, emotional distress, psychological and psychiatric trauma, mental anguish, humiliation, confusion, embarrassment, loss of educational opportunities, loss of self-esteem, loss of dignity, invasion of her privacy, separation from her family, medical and psychological expenses, loss on income, loss of the capacity to earn income in the future, and loss of the capacity to enjoy life. e.g., ¶¶28, and Comp., DE 1; see also j¶36, 40, 44, 48, 52, 56, 61, 65, and 69, Comp., DE 1. Jane Doe 101 102 came to Defendant's home on a number of occasions. Jane Doe 101 brought her friend, (referenced by name in a number of actions) to experience this same "trauma" — it does not make sense. Jane Doe 101 had issues associated with law enforcement involving drugs, battery, fleeing police; Jane Doe 102 claims to have been raped by two (2) individuals in 1998; pre any involvement with Epstein. This type of information is relevant, and Defendant is entitled EFTA00182769 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 5 of 13 Doe 101 v. Epstein Page 5 to fully explore it. As such, Plaintiffs' have placed their past and medical history as well as education, social, work, interpersonal, recreational legal, criminal and other aspects of their past and current lives at issue in light of the allegations they allege in their respective complaints. Despite Plaintiffs contention and effort to mislead this court, Epstein does not wish to publicize Plaintiffs' names in an effort to embarrass them. On the contrary, Epstein wishes to defend the claims made against him and dispute the damages Plaintiffs' claim by conducting discovery. Again, Plaintiffs allege substantial economic and non-economic personal injury damages. If this Court prevents Epstein from serving Third-Party Subpoenas identifying Plaintiffs, Epstein will be denied his due process rights by Plaintiffs in that he will be prevented from conducting broad, open and liberal discovery. The undersigned must serve subpoenas on medical doctors to obtain medical information related to Plaintiffs' alleged psychological and physical damages and or other third parties such as employees for other damages as same goes to the heart of Epstein's defenses and Plaintiffs' damages. Plaintiffs' intent is to have Epstein try this case without having obtained relevant and meaningful discovery. Plaintiff's proposal will chill Defendant's ability to fully and fairly access and obtain discovery. See infra. 3. Plaintiffs' counsel are competent trial attorneys well versed in many areas of the law, including that of personal injury. Despite the foregoing, Plaintiff's counsel, in some highlighted effort to resolve the discovery issues Plaintiffs have intentionally created in an effort to chill discovery, offers to provide only the documents that Plaintiffs' counsel obtains from third parties through its own selective procedures, and only after Plaintiffs' counsel has been able to cull through same. EFTA00182770 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 6 of 13 Doe 101 v. Epstein Page 6 4. It is hard to believe that any competent law firm responsible to his/her client would ever allow an opposing party to request records and provide those records to the requesting firm only after the opposing firm had an opportunity to review and filter through same. Plaintiffs, in this case, seek thousands if not millions in damages, including physical and emotional/mental and personal injury type, and Epstein must and is entitled to conduct his own discovery thereon. No valid discovery objections or exemptions exist preventing necessary and reasonable discovery. To hold otherwise prevents Mr. Epstein from preparing and defending this matter and denies to him his right to fully and fairly defend these cases. 5. Plaintiffs cite a host of cases for the proposition that anonymity should be granted when, for instance, a fear of retaliation or ostracism exists. Inconsistent with the cases Plaintiffs cite, not once do they state that Plaintiffs will be embarrassed, ostracized, or psychologically and emotionally unable to proceed with the action. Even so, embarrassment alone is not enough. $ Response to Motion to Proceed Anonymously. In determining whether to allow a party to proceed with litigation anonymously, a court must consider whether the identification poses a risk of retaliatory physical or mental harm to the requesting party or even more critically, to innocent non-parties. Doe. No. 2 v. Kolko, 242 F.R.D. 193, 195-98 (E.D.N.Y. 2006), citing, Fed.Rules Civ.Proc.Rule 106i), 281.1.S.C,A. Further, Plaintiffs cite cases wherein a psychologist opined that plaintiff suffered or will suffer sever emotional distress. Id. Here, no such affidavit has been provided and/or submitted to this court to justify Plaintiff's requests to proceed anonymously. Good cause must also be shown in order to proceed anonymously. Good cause for a protective order, which Plaintiffs have not filed here, is established upon a showing that disclosure will work a clearly defined and serious injury to the party seeking closure; the injury EFTA00182771 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 7 of 13 Doe 101 v. Epstein Page 7 must be shown with specificity. See Doe v. Evans, 202 F.R.D. 173, 176 (E.D. P.A. 2001). Thus, Plaintiffs have not met their burden of persuasion. N. Plaintiffs fail to show good cause in that they have not clearly defined what injury they will sustain if not permitted to proceed anonymously; they have only offered speculation. Such a failure is fatal to their request to proceed anonymously. See infra. 6. In Kolko, a case cited by the Defendants, the court specifically found that proceeding anonymously (i.e., in the style of the case only) would not inhibit discovery. Here, preventing Epstein from identifying Plaintiffs' in subpoenas and other type discovery overwhelmingly inhibits discovery. Ees Doe v. Evans, 202 F.R.D. at 176 (E.D. P.A. 2001) (denying protective order where alleged sexual assault victim did not demonstrate a serious specific injury and allowing Defendants to identify Plaintiff in discovery because holding otherwise would "chill defendants ability to conduct discovery"). Plaintiffs obviously cannot cite one case preventing open and broad discovery or preventing the identification of Plaintiffs in third-party subpoenas or in other discovery. While Plaintiffs cite to each of above cases, it is misleading for Plaintiffs to suggest the case did not allow for the service of third party subpoenas with the correct names. 7. Next, Plaintiffs' cite a host of criminal cases and statutes which this court has an obligation to distinguish when attempting to in artfully apply same in the civil context. For instance, while Fla. Stat. §794.024 and §794.026 appear to prevent the disclosure of the identity of a sexual assault victim, Fla. Stat. §794.024 only applies to public employees (and to investigations and state prosecutions related to claims of rape) and §794.026 only applies if disclosure is being done "with a reckless disregard for the highly offensive nature of the EFTA00182772 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 8 of 13 Doe 101 v. Epstein Page 8 publication." Rather, disclosure is being requested in order to properly litigate and defend this matter. Further, §794.026 does not (emphasis added) prevent the disclosure of the name of a sexual assault victim - it only allows for civil remedy as a result thereof assuming one meets the criteria to recover (i.e., disclosure with a reckless disregard for the highly offensive nature of the publication). Again, Epstein agreed to enter into a confidentiality agreement and, if required by this court, to redact full names from any document filed with the Court. 8. Next, the language of Fla. Stat. §92.56 makes it clear that the statute only applies criminal proceedings brought by the State of Florida, not civil proceedings. As set forth by the Office of Attorney General, Fla. Stat. §92.56 and Fla. Stat. §794.024 "were created by the Crime Victims Protection Act" See 2003 WL 22971082 (Fla. A.G.). Even though Fla. Stat. §92.56 only applies to criminal proceedings, subsection (2) thereof allows for the accused to apply for an order of disclosure to prepare a defense in a criminal proceeding. 9. In addition, Plaintiffs cite to Fed.R.Evid. 412. The Advisory Committee Notes to Rule 412, Fed.R.Evid, makes clear that the procedures to determine admissibility of an alleged victim's/plaintiffs sexual conduct or activity in civil cases does not apply to discovery of such information. Rather, discoverability of such information is governed by Rule 26, Fed.R.Civ.P., pursuant to which the scope of discovery is broad. Rule 412, entitled "Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition," provides in relevant part - (a) Evidence generally inadmissible.--The following evidence is not admissible in any civil ... proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. EFTA00182773 Case 9:08-cv-80119-KAM Document 149 Entered on FLSD Docket 06/09/2009 Page 9 of 13 Doe 101 v. Epstein Page 9 (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions.- (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility.-- (1) A party intending to offer evidence under subdivision (b) must— (A) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (B) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative. (2) Before admitting evidence under this rule the court must conduct a hearing in camera and affo