EFTA00180294.pdf

07/29/2011 13:11 FAX E6 0 0 1 /004 KIRKLAND & ELLIS LLP Fax Transmittal 300 North LaSalle Street Chicago, Illinois 60654 Phone: (312) 882-2000 Fax: (312) 862-2200 Please notify us Immediately if any pages are not received. THE INFORMATION CONTAINED IN THIS COMMUNICATION IS CONFIDENTIAL, MAY BE ATTORNEY-CLIENT PRIVILEGED, MAY CONSTITUTE INSIDE INFORMATION, AND IS INTENDED ONLY FOR THE USE OF THE ADDRESSEE. UNAUTHORIZED USE, DISCLOSURE OR COPYING IS STRICTLY PROHIBITED AND MAY BE UNLAWFUL. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY AT: (312) 862-2000. To: Company; Pax #: Direct #: United States Attorney, Southern District of Florida CC: Company: Fax #: Direct it Martin G. Weinberg, Esq. From: Date: Pages w/cover: Fax #: Direct #: Sandra Musumeci for July 29, 2011 4 Jay P. Lefkowitz, P.C. Message: Please see the attached letter, in response to your letter to Martin Weinberg of July 27, 2011, concerning Jeffrey Epstein. Thank you. Documena EFTA00180294 07/29/2011 13: 12 FAX a 002/004 KIRKLAND & ELLIS LLP AND AFRUATED PARTNLASIMPS 601 Lexington Avenue New York, New York 10022 Jay P. LeatowItz. P.C. To ilaiactly: jay.lefkowitzekirklend.cOm vnwairkland.com July 29, 2011 Delivery by Facsimile CONFIDENTIAL Assistant United States Attorney United States Attorney, Southern District of Florida 500 S. Australian Avenue Suite 400 West Palm Beach, FL 33401 Re: Jeffrey Epstein Dear Thank you for your letter of July 27, 2011 to my co-counsel Martin Weinberg concerning the request by the New York District Attorney for copies of the Non-Prosecution Agreement ("NPA") and the "victim list" in regards to Mr. Epstein. We continue for the reasons stated herein to believe that any such disclosure would violate the confidentiality agreement between your Office and Mr. Epstein as well as the provisions of Fed. R. Crim. P. 6(e). As to the NPA, you have repeatedly asserted in Doe v United States, No. 9:08-cv-80736- KAM, that the NPA was a confidential document. For instance, in paragraph 6 of Document 14, your own Declaration, you stated that the NPA contained "an express confidentiality provision." In opposing the Motion to Unseal the NPA that was filed by Jane Doe, you stated that you had informed Judge Marra of the confidentiality provision during an earlier telephonic status conference occurring on August 14, 2008 which "the United States was obligated to honor," Document 29 at 1, and that "the parties who negotiated the Agreement, the United States Attorney's Office and Jeffrey Epstein, determined that the Agreement should remain confidential," Document 29 at 2. Further, you deemed the NPA "confidential," for understandable purposes, in your September 3, 2008 letter to Robert Josefsberg in which you informed him that Judge Marra had set forth procedures for providing the NPA only to those counsel and "victims" who executed a Protective Order preventing its subsequent disclosure. The New York Assistant District Attorney, Ms. Morse, is representing the prosecution in an appeal regarding a sex offender registration determination, and any disclosure of the NM to her has the potential to result in its use in that appeal and the real risk that the appellate court will unseal it. We believe it to violate both the spirit and the most logical interpretation of the NPA, Chicago Hong Kong London Los Angeles Munich Palo Alto San Francisco Shanghai Washington D.C. K&E 19439748.2 EFTA00180295 07/29/2011 13: 12 FAX la003/004 KIRKLAND & ELLIS LLP July 29, 2011 Page 2 paragraph 13, for you to disclose it absent a subpoena -- which we could oppose in the jurisdiction from which it emanated. We further believe that when parol evidence supplements the text of paragraph 13 of the NPA, it is perfectly apparent from your prior submissions that you as well as we believed the NPA to contain "an express confidentiality provision" that your current willingness to disclose absent court process violates. As to the "victim list," again, not only is it confidential given its nexus to the NPA, but your own prior letters tie the list to the Federal Grand Jury investigation and thus to the non- disclosure provisions of Fed. R. Crim. P. 6(e). On July 8, 2008, you wrote to Jack A. Goldberger, Esq., and informed him that on June 30, 2008, "the United States Attorney's Office provided [him] with a list of thirty-one individuals 'whom it was prepared to name in an Indictment as victims of an enumerated offense by Mr. Epstein.'" (emphasis added). On July 9, 2008, you wrote in a follow-up letter to Mr. Goldberger that "the U.S. Attorney's modification of the 2255 portion of the Agreement now limits our victim list to those persons whom the United States was prepared to include in an indictment. This means that, pursuant to Justice Department policy, these are individuals for whom the United States believes it has proof beyond a reasonable doubt that each of them was a victim of an enumerated offense." (emphasis added). First Assistant United States Attorney Jeffrey Sloman used similar language in tying the names of the "victims" to the basis for a potential indictment, see December 6, 2007 letter from Mr. Sloman to Mr. Lefkowitz at 2, 3; see also your email to Mr. Lefkowitz and Mr. Black on August 14, 2008 at 3:27 p.m., where you state that the list contains "only those 'individuals whom [the United States] was prepared to name in an Indictment...,"' thus clearly providing the nexus between the list and the Grand Jury investigation and its corollary, the protections from non- disclosure enumerated in Fed. R. Crim. P. 6(e). In terms of case law, the names of witnesses that either testified or were identified dining Grand Jury proceedings are subject to the secrecy provisions of Fed. R. Crim. P. 6(e). S,g, e.g., In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006) ("Consistent with these purposes, we have recognized that grand jury secrecy covers 'the identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.") (citing bu Pow Jones & Co., Inc. 142 F.3d 496, 500 (D.C. Cir. 1998)); see also SEC v Dresser Indust, la 628 F.2d 1368, 1382 (D.C. Cir. 1980); Fund for Constitutional Gov't v Nat'! Archives & Records Sery , 656 F.2d 856, 869 (D.C. Cir. 1981). Indeed, it is generally recognized that the scope of protection accorded to Grand Jury proceedings under Rule 6(e) is broad and encompasses, among other things, information such as the "victim list" at issue here: KeLF. 19439748.2 EFTA00180296 07/29/2011 13: 12 FAX 1200.1/004 KIRKLAND & ELLIS LLP July 29, 2011 Page 3 We construe the secrecy provisions of Rule 6(e) to apply not only to disclosures of events which have already occurred before the grand jury, such as a witness's testimony, but also to disclosures of matters which will occur, such as statements which reveal the identity of persons who will be called to testify or which report when the grand jury will return an indictment. In re Grand Jury Investigation, 610 F.2d 202, 216-17 (5th Cir. 1980).1 We believe that confidentiality applies to the requested information. We believe that any non-compulsory handover of the list or NPA is inconsistent with the positions you have previously taken in related litigation. Accordingly, we request that you reconsider and decline the request of the New York District Attorney. Sincerely, P. Le owitz, P.C. Cc: Martin G. Weinberg JPL/slm Decisions of the United States Court of Appeals for the Filth Circuit handed down prior to September 30, 1981, are binding as precedent in the Eleventh Circuit. $.0 Bonner v. City of Prichard, Ala , 661 F.2d 1206, 1207 (11th Cir. 1981). K&E 19439748.2 EFTA00180297  Rov BLACK BLACK HOWARD M. SREBNICK Scorer A. KORNSPAN SREBNICK JESSICA FONSECA-NADER KATHLEEN P. PHILLIPS LARRY A. STUMPF KORNSPAN AARON ANTHON MARIA NEYRA MARCOS BEATON, JR. JACKIE PERCZEK STUMPF MATTHEW P. O'BRIEN MARK A.J. SHAPIRO t 7. JENIPER J. SOUMIAS JARED LOPEZ NOAH Fox E-Mail: September 1, 2009 Assistant U.S. Attorney United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 RE: Jeffrey Epstein Dear Once again I need to send you a note about Jeffrey Epstein, mainly to keep you in the loop so we don't inadvertently violate any provision of his agreement with your office. As I am sure you are aware, Mr. Epstein has finished the incarceration portion of his sentence and is now serving the one year of community control as mandated by both his state plea and the terms of the non- prosecution agreement with the United States Attorney's Office for the Southern District of Florida. Mr. Epstein is in compliance with all terms of his community control and is applying for transfer of his supervision from the State of Florida to his primary residence, the Virgin Islands. This transfer is being requested through the Intrastate Compact for Transfer of Adult Supervision (ICAOS). The ICAOS is the mechanism for which transfers of probation and community control are effectuated. The process requires the offender to seek the approval of the sending state (in this case Florida) and, if they agree, the receiving state (in this case the United States Virgin Islands) and the United States Virgin Islands after investigation has pre-approved the transfer under the same exact conditions of supervision as imposed in Mr. Epstein's community control sentence in the State of Florida. Even though Mr. Epstein is requesting the transfer he is still at the home 201 5. Biscayne Boulevard. Suite 1300 • Miami, Florida 33131 • Phone: 305-371-6421 • Fax: 305-358-2006 • vovw.Royalack.com EFTA00180298 Jeffrey Sloman, Esq. September 1, 2009 Page 2 in Palm Beach following the rules of state community control. As Mr. Epstein's lawyers, we believe that his request to administratively transfer his community control is in full compliance with both his state plea agreement and the non- prosecution agreement with the United States Attorney's Office. Nonetheless we have taken to heart your previous suggestion of erring on the side of caution and thus we are advising you of this request. I am happy to discuss this with you at any time. I did not want to set an appointment to see you on this issue since I imagine you have more pressing matters to deal with than a transfer of a state community control matter. Very Roy Black RB/wg Black, Srebnick, Komspan & Stumpf, P.A. EFTA00180299  ROY BLACK BLACK HOWARD M. SREBNICK Scan A. KORNSPAN SREBNICK JESSICA PONSECA-NADER KATHLEEN P. PHILIPS LARRY A. STUMPF KORNSPAN AARON ANTHON MARIA NEYRA MARCOS BEATON, JR. JACKIE PERCZEK STUMPF MATTHEW P. O'BRIEN MARK A.J. SHAPIRO PA. JENIPER J. souwaAs JARED LOPEZ NOAH FOX E-Mail: February 18, 2010 Assistant United States Attorney 99 N.E. 4th Street Miami, FL 33132 RE: Jeffrey Epstein Dear a Thank you for your letter of February 11, 2010. We write to update you about ongoing efforts to reach an agreement with Robert Josefsberg regarding the amount of fees and costs properly owed to him by Mr. Epstein pursuant to the NPA. On February 16, 2010 Mr. Epstein's principal civil counsel Bob Critton advised Mr. Josefsberg in writing that he and Mr. Epstein would meet with Mr. Josefsberg on two occasions between now and March 1, 2010 to review Mr. Josefsberg's outstanding bills on a line-by-line basis and attempt to reach a non- adversarial resolution of all outstanding fee issues. Mr. Critton also transmitted to Mr. Josefsberg an Agreement for Special Master to Determine Amount of Attorneys' Fees and Costs ("Special Master Agreement"), signed by Mr. Epstein, containing terms and conditions previously agreed to by Mr. Josefsberg, which would mandate binding mediation before a neutral third party in the event the proposed settlement discussions did not resolve all outstanding issues in an expeditious manner. We want to assure you that Mr. Epstein fully intends to fulfill his obligations under the NPA. We regret that issues remain unresolved regarding whether all of the fees and costs being sought by the attorney representative - which now total $1,947,000 exclusive of the $526,466 already paid by Mr. Epstein - meet the criteria set forth by the NPA. We assure you that both Mr. Epstein's prior civil counsel, Jay Lefkowitz, who, with you, was a primary negotiator of the NPA language, and Mr. Critton, each strongly believe that significant amounts of the fees and costs billed by Mr. Josefsberg are outside the scope of Mr. Epstein's fee- 201 S. Biscayne Boulevard, Suite 1300 • Miami. Florida 33131 • Phone: 30S-371-6421. Fa 305-358-2006 • www.RoyBlack.com EFTA00180300 Marie , Esq. February 18, 2010 Page 2 related payment obligations under the NPA. We hope that the fee-related issues can be resolved by further settlement discussions or by relying on the Special Master Agreement signed Tuesday February 16, 2010 by Mr. Epstein. Mr. Epstein and his counsel believe that these options are consistent with the NPA, are good faith alternatives to contested litigation, and are reasonable given the unexpected magnitude of the bills and their inclusion of charges for legal work that was clearly related to the preparation of litigation and thus outside Par 7C of the Addendum as well as for extensive work performed by attorneys from outside Mr. Josefsberg's law firm. Mr. Josefsberg previously advocated for settling outstanding issues through a Special Master Agreement nearly identical to the one executed Tuesday by Mr. Epstein. In fact, Mr. Josefsberg and Mr. Epstein had each agreed in the past to a specific Master as a third-party neutral to conduct proceedings to resolve the fee issues. However, the selected Master withdrew. We hope that the Special Master Agreement will provide a basis for a prompt resolution of any issue not resolved by the parties through further discussions. Respectfully submitted, MARTIN WEINBERG, ESQ. ROY BLACK, ESQ. By /wg CC: Robert Senior, Esq. Black. Srebnick, Kornspan & Stumpf. P.A. EFTA00180301  March 20, 2011 To whom it may concern: I served as U.S. Attorney for the Southern District of Florida from 2005 through 2009. Over the past weeks, I have read much regarding Mr. Jeffrey Epstein. Some appears true, some appears distorted. I thought it appropriate to provide some background, with two caveats: (i) under Justice Department guidelines, I cannot discuss privileged internal communications among Department attorneys and (ii) I no longer have access to the original documents, and as the matter is now nearly 4 years old, the precision of memory is reduced. The Epstein matter was originally presented to the Palm Beach County State Attorney. Palm Beach Police alleged that Epstein unlawfully hired underage high-school females to provide him sexually lewd and erotic massages. Police sought felony charges that would have resulted in a term of imprisonment. According to press reports, however, in 2006 the State Attorney, in part due to concerns regarding the quality of the evidence, agreed to charge Epstein only with one count of aggravated assault with no intent to commit a felony. That charge would have resulted in no jail time, no requirement to register as a sexual offender and no restitution for the underage victims. Local police were dissatisfied with the State Attorney's conclusions, and requested a federal investigation. Federal authorities received the State's evidence and engaged in additional investigation. Prosecutors weighed the quality of the evidence and the likelihood for success at trial. With a federal case, there were two additional considerations. First, a federal criminal prosecution requires that the crime be more than local; it must have an interstate nexus. Second, as the matter was initially charged by the state, the federal responsibility is, to some extent, to back-stop state authorities to ensure that there is no miscarriage of justice, and not to also prosecute federally that which has already been charged at the state level. After considering the quality of the evidence and the additional considerations, prosecutors concluded that the state charge was insufficient. In early summer 2007, the prosecutors and agents in this case met with Mr. Epstein's attorney, Roy Black. Mr. Black is perhaps best known for his successful defense of William Kennedy Smith. The prosecutors presented Epstein a choice: plead to more serious state felony charges (that would result in 2 years' imprisonment, registration as a sexual offender, and restitution for the victims) or else prepare for a federal felony trial. What followed was a year-long assault on the prosecution and the prosecutors. I use the word assault intentionally, as the defense in this case was more aggressive than any which I, or the prosecutors in my office, had previously encountered. Mr. Epstein hired an army of legal superstars: Harvard Professor Alan Dershowitz, former Judge and then Pepperdine Law Dean Kenneth Stan•, former Deputy Assistant to the President and then Kirkland & Ellis Partner Jay Lefkowitz, and several others, including prosecutors who had formally worked in the U.S. EFTA00180302 Attorney's Office and in the Child Exploitation and Obscenity Section of the Justice Department. Defense attorneys next requested a meeting with me to challenge the prosecution and the terms previously presented by the prosecutors in their meeting with Mr. Black. The prosecution team and I met with defense counsel in Fall 2007, and I reaffirmed the office's position: two years, registration and restitution, or trial. Over the next several months, the defense team presented argument after argument claiming that felony criminal proceedings against Epstein were unsupported by the evidence and lacked a basis in law, and that the office's insistence on jail-time was motivated by a zeal to overcharge a man merely because he is wealthy. They bolstered their arguments with legal opinions from well- known legal experts. One member of the defense team warned me that the office's excess zeal in forcing a good man to serve time in jail might be the subject of a book if we continued to proceed with this matter. My office systematically considered and rejected each argument, and when we did, my office's decisions were appealed to Washington. As to the warning, I ignored it. The defense strategy was not limited to legal issues. Defense counsel investigated individual prosecutors and their families, looking for personal peccadilloes that may provide a basis for disqualification. Disqualifying a prosecutor is an effective (though rarely used) strategy, as eliminating the individuals most familiar with the facts and thus most qualified to take a case to trial harms likelihood for success. Defense counsel tried to disqualify at least two prosecutors. I carefully reviewed, and then rejected, these arguments. Despite this army of attorneys, the office held firm to the terms first presented to Mr. Black in the original meeting. On June 30, 2008, after yet another last minute appeal to Washington D.C. was rejected, Epstein pled guilty in state court. He was to serve 18 months imprisonment, register as a sexual offender for life and provide restitution to the victims. Some may feel that the prosecution should have been tougher. Evidence that has come to light since 2007 may encourage that view. Many victims have since spoken out, filing detailed statements in civil cases seeking damages. Physical evidence has since been discovered. Had these additional statements and evidence been known, the outcome may have been different. But they were not known to us at the time. A prosecution decision must be based on admissible facts known at the time. In cases of this type, those are unusually difficult because victims arc frightened and often decline to testify or if they do speak, they give contradictory statements. Our judgment in this case, based on the evidence known at the time, was that it was better to have a billionaire serve time in jail, register as a sex offender and pay his victims restitution than risk a trial with a reduced likelihood of success. I supported that judgment then, and based on the state of the law as it then stood and the evidence known at that time, I would support that judgment again. Epstein's treatment, while in state custody, likewise may encourage the view that the office should have been tougher. Epstein appears to have received highly unusual treatment while in jail. Although the terms of confinement in a state prison are a matter appropriately left to the EFTA00180303 State of Florida, and not federal authorities, without doubt, the treatment that he received while in state custody undermined the purpose of a jail sentence. Some may also believe that the prosecution should have been tougher in retaliation for the defense's tactics. The defense, arguably, often failed to negotiate in good faith. They would obtain concessions as part of a negotiation and agree to proceed, only to change their minds, and appeal the office's position to Washington. The investigations into the family lives of individual prosecutors were, in my opinion, uncalled for, as were the accusations of bias and / or misconduct against individual prosecutors. At times, some prosecutors felt that we should just go to trial, and at times I felt that frustration myself. What was right in the first meeting, however, remained right irrespective of defense tactics. Individuals have a constitutional right to a defense. The aggressive exercise of that right should not be punished, nor should a defense counsel's exercise of their right to appeal a U.S. Attorney to Washington, D.C. Prosecutors must be careful not to allow frustration and anger with defense counsel to influence their judgment. After the plea, I recall receiving several phone calls. One was from the FBI Special Agent-In- Charge. He called to offer congratulations. He had been at many of the meetings regarding this case. He was aware of the tactics of the defense, and he called to praise our prosecutors for holding firm against the likes of Messrs. Black, Dershowitz, Leflcowitz and Starr. It was a proud moment. I also received calls or communications from Messrs. Dershowitz, Lefkowitz and Stan•. I had known all three individuals previously, from my time in law school and at Kirkland & Ellis in the mid 90s. They all sought to make peace. I agreed to talk and meet with each of them after Epstein pled guilty, as I think it important that prosecutors battle defense attorneys in a case and then move on. I have tried, yet I confess that has been difficult to do fully in this case. The bottom line is this: Mr. Jeffrey Epstein, a billionaire, served time in jail and is now a registered sex offender. He has been required to pay his victims restitution, though restitution clearly cannot compensate for the crime. And we know much more today about his crimes because the victims have come forward to speak out. Some may disagree with the prosecutorial judgments made in this case, but those individuals are not the ones who at the time reviewed the evidence available for trial and assessed the likelihood of success. Respectfully, R. Alexander Acosta Former U.S. Attorney Sothem District ofFlorida EFTA00180304 Case !:i:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 1 of 51 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA 2 WEST PALM BEACH DIVISION 3 CASE NO. 08-80119-CIV-MARRA 4 WEST PALM BEACH, FLORIDA JANE DOE, et al., 5 Plaintiffs, JUNE 12, 2009 6 vs. 7 JEFFREY EPSTEIN, 8 Defendant. 9 10 TRANSCRIPT OF MOTION HEARING 11 BEFORE THE HONORABLE KENNETH A. MARRA, UNITED STATES DISTRICT JUDGE 12 APPEARANCES: 13 FOR THE PLAINTIFFS: ADAM D. HOROWITZ, ESQ. 14 Mermelstein & Horowitz 18205 Biscayne Boulevard 15 Miami, FL 33160 For Jane Doe 16 BRADLEY J. EDWARDS, ESQ. 17 Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard 18 Fort Lauderdale, FL 33301 Jane Doe 3, 4, 5, 6, 7 19 20 ISIDRO M. GARCIA, Garcia Elkins Boehringer 21 224 Datura Avenue West Palm Beach, FL 33401 22 Jane DOE II 23 RICHARD H. WILLITS, ESQ. 2290 10th Avenue North 24 Lake Worth, FL 33461 For C.M.A. 25 TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180305 Case 0:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 2 of 51 1 ROBERT C. JOSEFSBERG, ESQ. 2 Podhurst Orseck Josefsberg 25 West Flagler Street 3 Miami, FL 33130 For Jane Doe 101 4 (Via telephone) 5 KATHERINE W. EZELL, ESQ. Podhurst Orseck Josefsberg 6 25 West Flagler Street Miami, FL 33130 7 For Jane Doe 101 8 FOR THE DEFENDANT: ROBERT D. CRITTON, JR., ESQ. MICHAEL BURMAN, ESQ. 9 Burman Critton, etc. 515 North Flagler Street 10 West Palm Beach, FL 33401 561.842.2820 11 JACK A. GOLDBERGER, ESQ. 12 Atterbury Goldberger Weiss 250 Australian Avenue South 13 West Palm Beach, FL 33401 14 15 As Amicus cwsoc: Assistant U.S. Attorney 500 East Broward Boulevard 16 Fort Lauderdale, FL 33394 For U.S.A. 17 MARTIN G. WEINBERG, ESQ. 18 20 Park Plaza Boston MA 02116 19 (Via telephone) 20 JAY LEFKOWITZ, ESQ. (Via telephone) 21 REPORTED BY: LARRY HERR, RPR-RMR-FCRR-AE 22 Official United States Court Reporter Federally Certified Realtime Reporter 23 400 North Miami Avenue, Room BN09 Miami, FL 33128 24 25 TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180306 Case 9:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 3 of 51 3 1 THE COURT: We are here in the various Doe vs. Epstein 2 cases. 3 May I have counsel state their appearances? 4 MR. HOROWITZ: Adam Horowitz, counsel for plaintiffs 5 Jane 2 through Jane Doe 7. 6 THE COURT: Good morning. 7 MR. EDWARDS: Brad Edwards, counsel for plaintiff Jane 8 Doe. 9 THE COURT: Good morning. 10 MR. GARCIA: Good morning, Your Honor. Sid Garcia for 11 Jane Doe II. 12 THE COURT: Good morning. 13 MR. WILLITS: Good morning, Your Honor. Richard 14 Willits, here on behalf of the plaintiff C.M.A.. 15 THE COURT: Good morning. 16 MS. EZELL: Good morning, Your Honor. I'm Katherine 17 Ezell from Podhurst Orseck, here with Amy Adderly and Susan 18 Bennett, and I believe my partner, Bob Josefsberg, is going to 19 appear by telephone. 20 THE COURT: Mr. Josefsberg, are you there? 21 MR. JOSEFSBERG: I am, Your Honor. 22 THE COURT: Good morning. 23 MR. JOSEFSBERG: Good morning. 24 THE COURT: All right. Do we have all the plaintiffs 25 stated their appearances? Okay. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180307 Case 9:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 4 of 51 4 1 Defense? 2 MR. CRITTON: Your Honor, Robert Critton on behalf of 3 Mr. Epstein, and my partner, Michael Burman. 4 THE COURT: Good morning. 5 MR. GOLDBERGER: Good morning, Your Honor. Jack 6 Goldberger on behalf of Mr. Epstein. 7 THE COURT: I see we have some representatives from 8 the United States Attorney's Office here. 9 MS. : Good morning, Your Honor. 10 for the U.S. Attorney's office. 11 THE COURT: Good morning. 12 Who else do we have on the phone? 13 MR. CRITTON: Your Honor, we have two members of the 14 defense team are on the phone, also. 15 THE COURT: Who do we have on the phone? 16 MR. WEINBERG: Martin Weinberg. Good morning, Your 17 Honor. 18 MR. LEFKOWITZ: Jay Lefkowitz. Good morning, Your 19 Honor. 20 THE COURT: Good morning. 21 I scheduled this hearing for very limited issues 22 which, as you all know, there's been a motion by Mr. Epstein to 23 stay the civil proceedings against him. The one issue I have 24 concern about is Mr. Epstein's contention or assertion that by 25 defending against the allegations in the civil proceedings, he TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180308 Case 9:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page5of51 5 1 may expose himself to an allegation by the United States in the 2 non-prosecution agreement that he's violated that agreement and 3 therefore would subject himself to potential federal charges. 4 I had asked for some briefing on this. I asked the 5 United States to present its position to me. And I received 6 the Government's written response, which I frankly didn't find 7 very helpful. And I still am not sure I understand what the 8 Government's position is on it. 9 So first let me hear from Mr. Epstein's attorneys as 10 to what do you believe the concern is. I don't believe the 11 non-prosecution agreement has ever been filed in this Court; am 12 I correct? 13 MR. CRITTON: To my knowledge, Your Honor, it has not. 14 THE COURT: So I don't believe I've ever seen the 15 entire agreement. I've seen portions of it. 16 MR. EDWARDS: Your Honor, I believe that it was filed 17 under Jane Doe 1 and 2 vs. United States of America, case under 18 seal in your court. 19 THE COURT: Okay. 20 MR. EDWARDS: In a separate case. 21 THE COURT: In that case, okay. Was it actually filed 22 in that case? 23 MR. EDWARDS: I filed it under seal. 24 THE COURT: In any event, what's Mr. Epstein's concern 25 about if you defend the civil actions, you're going to expose TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180309 Case 9:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 6 of 51 6 1 yourself to a claim for a breach by the United States of the 2 non-prosecution agreement? 3 MR. CRITTON: Robert Critton. 4 Your Honor, our position on this case is, I'd say is 5 somewhat different. When this issue originally came before the 6 Court, as you are aware prior to my firm's involvement in the 7 case, there was a motion filed on behalf of Mr. Epstein seeking 8 a stay. And I think it was in Jane Doe 102 and then 9 subsequently Jane Doe 2 through 5 because all of those cases 10 were filed on or about the same time. 11 And at that time the Court looked at the issue and it 12 was based upon a statutory provision at that time. And the 13 Court said I don't find that it's applicable, or for whatever 14 reason I think the Court said I don't consider that to be a 15 pending proceeding or a proceeding at that particular time. 16 In that same order, which was in Jane Doe 2, I 17 believe it's -- not I believe, I know it's docket entry 33, the 18 Court also went on to talk about at that particular point in 19 time dealt with the issue of the discretionary stay. 20 And the Court said at that time, I'm paraphrasing, but 21 the Court also does not believe a discretionary stay is 22 warranted. And what the Court went on to say is that if 23 defendant does not breach the agreement, then he should have no 24 concerns regarding his Fifth Amendment right against 25 self-incrimination. TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180310 Case 9:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 7 of 51 7 1 The fact that the U.S. Attorney or other law 2 enforcement officials may object to some discovery in these 3 civil cases is not in and of itself a reason to stay the civil 4 litigation, so that any such issue shall be resolved as they 5 arise in the course of the litigation. 6 And I would respectfully submit to the Court that the 7 position that the Government has taken in its most recent 8 filings changes the playing field dramatically. Because what 9 the Government in essence has said as distinct from the U.S. 10 saying is, well, we object to some discovery, or we may object 11 to some discovery in the civil cases. 12 What they have, in essence, said is if you take some 13 action, Mr. Epstein, that we believe unilaterally, and this is 14 on pages 13 and 14 of their pleading or of their response memo 15 to the Court's inquiry, they say if Mr. Epstein breaches the 16 agreement. They said it's basically like a contract, and if 17 one side breaches, the other side can sue. 18 In this instance what the Government will do is if we 19 believe that Mr. Epstein has breached the agreement, we'll 20 indict him. We will indict him. And his remedy under that 21 circumstance, which is an incredible and catastrophic catch 22 22 is, we'll indict him and then he can move to dismiss. That's a 23 great option. 24 In this particular instance my mandate in defending -- 25 and that's a dramatic change in the Government's position, TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180311 Case9:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page8of51 8 1 because the Government is not saying, and the Court was pretty 2 specific in what you asked the Government for in its response 3 is, in essence, and it's the same question in a more limited 4 fashion you're posing today is whether Mr. Epstein's defense of 5 the civil action violates the NPA agreement, the 6 non-prosecution agreement, between the U.S. and Mr. Epstein. 7 And the Government refuses to answer that question. 8 They won't come out and say, yes, it will, or no, it won't. 9 What they're doing is they want to sit on the sideline, and as 10 their papers suggest is, they want us to lay in wait and that 11 if, in fact, they believe he violates a provision of the NPA as 12 it relates to the defense of this case or these multitude of 13 cases, then they can come in and indict him -- no notice, no 14 opportunity to cure. 15 We don't think that's what the NPA says, but that's 16 certainly what their papers say. We'll indict him, no notice, 17 no opportunity to cure. We will indict him, and his remedy 18 under that circumstance is that he can move to dismiss the 19 indictment. 20 Well, that's great except Mr. Epstein, his mandate to 21 me and I know his mandate to his criminal lawyers, is: Make 22 certain I don't do anything, in particular in these civil cases 23 that would in any way suggest that I am in willful violation of 24 the NPA. 25 Now, in the Court's prior ruling in the docket entry TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180312 Case 9:08-cv 80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 9of51 g 1 33, certainly some aspects of the NPA are within Mr. Epstein's 2 control. There's no question about that. But aspects that 3 relate to the defense of these cases, either in terms of the 4 civil lawyers who are defending these, I think there's 12 or 13 5 pending cases in front of you, there's another four cases in 6 the state court, is the risk is substantial, it's real, and it 7 presents a chilling effect for the civil lawyers in moving 8 forward to determine whether or not we're taking some action 9 that in some way may be a violation of the NPA. 10 And the Government's, again, refusal or non-position 11 with regard to past acts that have been taken in the civil case 12 with regard to the defense or future acts that we may take with 13 regard to these contested litigation casts an extraordinary 14 cloud of doubt and uncertainty and fear that the defense of 15 these cases could jeopardize Mr. Epstein and put him in the 16 irreparable position of violating the NPA and then subsequently 17 being indicted. 18 In this particular instance, again, Mr. Epstein has no 19 intention of willfully violating the NPA, but it's of great 20 concern to him. And I'd say with the position that the 21 Government has taken, no notice, no cure period, no opportunity 22 to discuss. Again, we think that's not what the NPA provides, 23 it's not what the deal was between the two contracting parties, 24 the United States and Mr. Epstein. But that's clearly what 25 their papers say under the circumstances, and it would create TOTAL ACCESS COURTROOM NETWORK REALTIME TRANSCRIPTION EFTA00180313 Case 9:08-cv-80119-KAM Document 180 Entered on FLSD Docket 06/24/2009 Page 10 of 51 m 1 II this irreparable harm to Mr. Epstein under the circumstances. 2 In essence, we're left with a catch 22 in defending 3 the civil cases. We have a mandate to take no action, to take 4 any action which may be deemed to be a violation of the NPA, 5 either in the past or in the future, which would in any way 6 risk Mr. Epstein being indicted by the United States. 7 He has the clear risk of an indictment based upon the 8 papers that the Government filed. It's real, it's not remote, 9 and it's not speculative. It chills the action of the defense 10 in this instance of both Mr. Epstein and his attorneys in 11 trying to d