EFTA00177201.pdf

CM/ECF - Live Database r Page 1 of 3 LRJ U.S. District Court Southern District of Florida (West Palm Beach) CIVIL DOCKET FOR CASE #: 9:08-cv-80736-KA M Doe'. United States of America Date Filed: 07/07/2008 Assigned to: Judge Kenneth A. Marra Jury Demand: None Cause: no cause specified Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant Date Filed # Docket Text 07/07/2008 1 EMERGENCY PETITION for Victim's Enforcement of Crime Victim's Rights Act 18 USC 3771 against United States of America Filing fee $ 350. Receipt#: 724403, filed by Jane Doe. (rb) (Entered: 07/07/2008) 07/07/2008 2 CERTIFICATE OF EMERGENCY by Jane Doe re 1 Complaint (rb) (Entered: 07/07/2008) 07/07/2008 3 ORDER requiring U.S. Attorney to respond to 1 Complaint filed by Jane Doe by 5:00 p.m. on 7/9/08. Signed by Judge Kenneth A. Marra on 7/7/08. (ir) (Entered: 07/07/2008) 07/09/2008 4 NOTICE of Attorney Appearance by Dexter Lee on behalf of United States of America (Lee, Dexter) (Entered: 07/09/2008) 07/09/2008 6 Sealed Document. (rb) UNSEALED see DE 12 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 7 Sealed Document. (rb) UNSEALED see DE 13 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 8 Sealed Document. (rb) UNSEALED see DE .14 . Modified on 7/15/2008 (bs). (Entered: 07/10/2008) 07/09/2008 12 UNSEALED MOTION to Seal Response to Victim's Emergency Petition by United States of America. (previously filed as 6 sealed document) (bs) (Entered: 07/15/2008) 07/09/2008 13 UNSEALED RESPONSE to 1 Emergency Petition for Enforcement of Crime Victim Rights Act filed by United States of America. (previously filed as 7 sealed document) (bs) (Entered: 07/15/2008) 07/09/2008 14 UNSEALED DECLARATION signed by : A. Marie Villafana. re 13 Response to Victim's Emergency Petition by United States of America. (previously filed as 8 sealed document) (bs) (Entered: 07/15/2008) 07/10/2008 5 ORDER SETTING HEARING: Petitioner's Emergency Petition for Enforcement of Crime Victim's Rights Act set for 7/11/2008 10:15 AM in West Palm Beach Division before Judge Kenneth A. Marra. Signed by Judge Kenneth A. Marra on 7/10/08. (ir) (Entered: 07/10/2008) 07/11/2008 9 REPLY to Response (under seal) re 1 Complaint/Emergency Petition, and Objection to Government's Motion for Sealing of Pleadings filed by Jane Doe. (Is) (Entered: 07/11/2008) https://eclflsd.uscourts.gov/cgi-bin/DktRpt.pl?657771929017239-L_801_0-1 10/17/200E EFTA00177201 CM/ECF - Live Database P Page 2 of 3 07/11/2008 10 Minute Entry for proceedings held before Judge Kenneth A. Marta: Miscellaneous Hearing held on 7/11/2008. Court will issue order to unseal pleadings. Court Reporter: Official Reporting Service- phone number 305-523-5635 (ir) (Entered: 07/11/2008) 07/11/2008 JI ORDER Denying Motion to Seal re 7 Sealed Document, 6 Sealed Document, 8 Sealed Document. Signed by Judge Kenneth A. Marra on 7/11/2008. (Is) (Additional attachment(s) added on 7/15/2008: # 1 docket sheet) (bs). (Entered: 07/14/2008) 07/17/2008 15 TRANSCRIPT of Hearing held on 7/11/2008 before Judge Kenneth A. Marra. Court Reporter: Victoria Aiello- phone number 954-467-8204 32 pages. (abd) (Entered: 07/18/2008) 07/28/2008 16 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filing for Paul G. Cassell, Filing Fee $75, Receipt #724532. (cw) (Entered: 07/28/2008) 07/29/2008 17 NOTICE by United States of America To Court Regarding Absence ofNeedfor Evidentiary Hearing (Lee, Dexter) (Entered: 07/29/2008) 07/30/2008 18 ENDORSED ORDER granting Paul G. Cassell 16 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings. Signed by Judge Kenneth A. Marra on 7/29/08. (ir) (Entered: 07/30/2008) 08/01/2008 19 RESPONSE/REPLY to Goverment's Notice to Court Regarding Absence ofNeedfor Evidentiary Hearing andMotionfor Production ofNon-Prosecution Agreement and ofReport ofInterview filed by Jane Doe. (Attachments: # 1 Exhibit Proposed Stipulation, # 2 Exhibit July 17, 2008 Letter, # a Exhibit July 3, 2008 LetterXEdwards, Bradley) (Entered: 08/01/2008) 08/08/2008 20 MOTION for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filing for Jay C. Howell, Filing Fee $75, Receipt #724591. (cw) (Entered: 08/12/2008) 08/13/2008 21 ENDORSED ORDER granting Jay C. Howell 20 Motion for Limited Appearance, Consent to Designation and Request to Electronically Receive Notices of Electronic Filings. Signed by Judge Kenneth A. Marra on 8/12/08. (ir) (Entered: 08/13/2008) 08/13/2008 22 NOTICE by United States of America re 12 Response/Reply (Other), Response/Reply (Other) Government's Response to Petitioners' Requestfor Non-Prosecution Agreement andReport of Interview (Lee, Dexter) (Entered: 08/13/2008) 08/13/2008 21 ORDER Setting Status Conference: Status Conference set for 8/14/2008 03:30 PM in West Palm Beach Division before Judge Kenneth A. Marra. Parties may contact the courtroom deputy at 561-514-3765 to make arrangements to appear telephonically. Signed by Judge Kenneth A. Marra on 8/13/08. (ir) (Entered: 08/13/2008) 08/1412008 25 Minute Entry for proceedings held before Judge Kenneth A. Marra: Status Conference held on 8/14/2008. Court Reporter: Stephen Franklin- phone number 561-514-3768 (ir) (Entered: 08/21/2008) 08/20/2008 24 NOTICE of Instruction to Filer: re 22 Notice (Other) filed by United States of America Error: Wrong Event Selected; Instruction to filer - In the future please select the proper event. (Is) (Entered: 08/20/2008) 08/21/2008 26 ORDER TO COMPEL PRODUCTION AND PROTECTIVE ORDER. Signed by Judge Kenneth A. Marra on 8/21/08. (ir) (Entered: 08/21/2008) 08/22/2008 27 TRANSCRIPT of Hearing held on 8/14/2008 before Judge Kenneth A. Marra. Court Reporter: Stephen Franklin - phone number 561-514-3768 25 pages. (abd) (Entered: 08/25/2008) https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.pl?657771929017239-L_801_0-1 10/17/2001 EFTA00177202 CM/ECF - Live Database - ' Page 3 of 3 09/25/2008 21 MOTION to Unseal Document Non-Prosecution Agreement by Jane Doe. Responses due by 10/14/2008 (Attachments: # 1 Text of Proposed Order)(Edwards, Bradley) (Entered: 09/25/2008) 10/08/2008 29 RESPONSE in Opposition re 28 MOTION to Unseal Document Non-Prosecution Agreement filed by United States of America. (Villafana, Ann Marie) (Entered: 10/08/2008) 10/16/2008 3Q RESPONSE/REPLY to 29 Response in Opposition to Motion to Unseal Non-Prosecution Agreement filed by Jane Doe. (Attachments: # 1 Exhibit October 9, 2008 letter from Brad Edwards, Esquire to AUSA Dexter Lee, # 2 Exhibit October 15, 2008 Letter from Brad Edwards, Esquire to AUSA Dexter Lee)(Edwards, Bradley) (Entered: 10/16/2008) PACER Service Center Transaction Receipt 10/17/2008 10:41:21 PACER Login: du4480 Client Code: 9:08-cl-8073 6- Description: Docket Report Search Criteria: lam Billable Pages: 2 Cost: 0.16 https://ecf.flsd.uscourts.gov/cgi-bin/DktRpt.p17657771929017239-L_801_0-1 10/17/20W EFTA00177203 Case 9:08-cv-fh... .36-KAM Document S.. Enterea FLSD Docket 10/16/2t...,d Page 1 of 6 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80736-CIV-MARRAMOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, 1. UNITED STATES OF AMERICA, Respondent. VICTIMS' REPLY TO RESPONDENT'S OPPOSITION TO VICTIMS' MOTION TO UNSEAL NON-PROSECUTION AGREEMENT COME NOW the Petitioners, Jane Doe #1 and Jane Doe #2 ("the victims"), by and through undersigned counsel, and reply to the Government's Opposition to Victims' Motion to Unseal Non-Prosecution Agreement. 'The victims have moved for a lifting of the protective order barring them from publicly disclosing or discussing the terms of the non-prosecution agreement between Jeffrey Epstein and the United States Government. Jeffrey Epstein has made no response to this motion. The Government, however, contends that the victims' motion should be denied because the victims cannot show any injury from the protective order. The Government's position is wrong for three reasons. First, the Government bears the burden of showing some good cause for a protective order. It has utterly failed to even offer any such cause — much less show that it is good cause. Second, the Government — with the apparent contrivance of Jeffrey Epstein's attorneys — has made inaccurate representations about the nature of the non-prosecution agreement in its notices to the victims and in its filing before the Court. To set the record straight, therefore, the victims EFTA00177204 Case 9:08-cv-8,-. 36-KAM Document 3., Enterea FLSD Docket 10/16/2t.,,,d Page 2 of 6 should be allowed to publicly discuss the agreement. Finally, the victims are burdened by provisions in the protective order. For all these reasons, the protective order should be lifted. 1. No Good Cause Has been Shown for Sealing the Agreement. In their motion to unseal the agreement, the victims argued that there was no good reason for the protective order requiring them not to further disseminate the agreement. Curiously, the Government's response does not offer any substantive reason for the agreement to remain under seal or under a protective order.' Instead, the Government contends that victims have "no legal right to disclose the Agreement to third parties, or standing to challenge the confidentiality provision." Gov't Response at 2. But this argument has things backwards. It is not the victims' task to show some reason for not entering a protective order; rather, it is the Government's task to show some affirmative reason for entering the order in the first place. See Fed. R. Civ. P. 26(c) (allowing for entry of a protective order upon motion for a party "for good cause shown"); see also In re Alexander Grant & Co. Litigation, 820 F.2d 352, 356 (11'h Cir. 1987) ("good cause" for a protective order "generally signifies a sound basis or legitimate need to take judicial action"). Having been given the opportunity to explain why the document has to remain confidential, the Government chose not to do so. And Jeffrey Epstein was served with the victims' motion, but chose not to respond. Presumably this was because Jeffrey Epstein had no real interest at stake in the confidentiality of the agreement. Therefore, the protective order should be lifted because it lacks any articulated justification — much less any justification that constitutes good cause. I The Government prefers to view the issues in this case as involving not the sealing of a document but rather the entry of a protective order preventing the disclosure of a document. To simplify the dispute in this case, we will proceed on the Government's view of the situation. EFTA00177205 Case 9:08-cv-6, .36-KAM Document 3._ Entereo FLSD Docket 10/16/2u _ ‘i Page 3 of 6 2. The Government, With the Apparent Aid of Epstein, Has Provided Inaccurate Information to the Victims (and to the Court). The victims also asked that the protective order be lifted to help clarify the record in this case. The Government has made public representations in its pleadings in this case about the civil remedy provision in the non-prosecution agreement. It also specifically sent notices to Jane Doe #1 and other victims of Jeffrey Epstein's crimes describing this provision in the agreement. Those representations were inaccurate — as the Government now seemingly admits. See Gov't Response at 6 (referring to "erroneous disclosure" that was "inadvertently made" to Jane Doe #1). Indeed, the Government now takes the position that the responsibility for those inaccurate representations to the victim — as well as to the Court — lies with Jeffrey Epstein's attorneys'. See Gov't Response at 5 ("the [inaccurate] victim notification letter was provided to Epstein's attorneys prior to being sent, who approved the language of which the petitioners now complain."). The apparent approval by Jeffrey Epstein's attorneys of inaccurate information being sent to crime victims (and possibly their approval of inaccurate information being provided, as a result, to the Court) raises very significant issues under the Crime Victim's Rights Act. The victims have, therefore, sent a letter to the U.S. Attorney's Office requesting clarification of exactly how Jeffrey Epstein's attorneys participated in misleading the victims. See Attachment 1 (Oct. 9, 2008, Letter from Brad Edwards, Esq. to AUSA Dexter Lee). Indeed, it appears that the Government may have provided an inaccurate description of another feature of the non- prosecution agreement to the victims. See Attachment 2 (Oct. 15, 2008 Letter from Brad Edwards, Esq. to AUSA Dexter Lee (noting Government's representation to victims of a right to recover at least $150,000 in damages from Jeffrey Epstein while Jeffrey Epstein's lawyers take the position that the agreement allows automatic recovery of only $50,000). In light of all these EFTA00177206 Case 9:08-cy-13L. 36-KAM Document Enterea FLSD Docket 10/16/26 Page 4 of 6 apparent misrepresentations about precisely what the non-prosecution agreement entails, the victims should not be bound by a protective order barring their public disclosure of the agreement. 3. The Protective Order Unfairly Burdens the Victims. In their motion, the victims also explained how the protective order burdened their efforts to confer with other victims' rights attorneys regarding how best to proceed in light of the non- prosecution agreement. The Government does not seriously contest the victims' representations about the burdens imposed by the protective order. Instead, it takes the truly remarkable position that "the Protective Order does not prevent [the victims] from consulting with anyone; it only prevents them from disclosing the Agreement." Gov't Response at 4. But the whole point of the victims' motion was that the protective order places burdens on the victims in consulting with other attorneys about the agreement. Obviously, it is of no help to the victims to be able to consult with other attorneys on that issue if the agreement itself cannot be disclosed. CONCLUSION The provision in the protective order barring the victims and their attorneys from publicly disclosing the non-prosecution agreement should be lifted. DATED this I 6th day of October, 2008. Respectfully Submitted, THE LAW OFFICE OF BRAD EDWARDS & ASSOCIATES, LLC By: s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioners Florida Bar No. 542075 2028 Harrison Street - Suite 202 Hollywood, Florida 33020 Telephone: 954-414-8033/Fax: 954-924-1530 E-Mail: [email protected] EFTA00177207 Case 9:08-cv-Ek, . 36-KAM Document 3, Enterea FLSD Docket 10/16/26.4 Page 5 of 6 Paul G. Cassell Attorney for Petitioners Pro Hac Vice 332 S. 1400 E. Salt Lake City, UT 84112 Telephone: 801-585-5202 Facsimile: 801-585-6833 E-Mail: cassellp®law.utah.edu Jay C. Howell, Esquire Attorney for Petitioners Pro Hac Vice 644 Cesery Boulevard - Suite 250 Jacksonville, Florida 32211 Telephone: 904-680-1234 Facsimile: 904-680-1238 E-Mail: [email protected] CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 16. 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. SERVICE LIST Jane Doe 1 and Jane Doe 2 Case No.: 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Dexter A. Lee, Assistant U.S. Attorney 99 N.E. 4th Street Miami, Florida 33132 Telephone: 305-961-9320 Facsimile: 305-530-7139 Ann Marie C. Villafana, AUSA United States Attorney's Office 500 South Australian Avenue Suite 400 West Palm Beach, Florida 33401 s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioner Florida Bar No, 542075 EFTA00177208 Case 9:08-cv-8t,. 36-KAM Document 3‘. Entered FLSD Docket 10/16/26..0 Page 6 of 6 I HEREBY FURTHER CERTIFY that on October 16. 2008 a true and correct copy of the above and foregoing document is being provided by United States mail to: Jack Alan Goldberger, Esquire Atterburty, Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, Florida 33401 jagesq©bellsouth.net Michael R. Tein, Esquire Lewis Tein, P.L. 3059 Grand Avenue Suite 340 Coconut Grove, Florida 33133 [email protected] Robert D. Critton, Jr., Esquire Michael J. Pike, Esquire Burman, Critton, Luttier & Coleman, LLP 515 North Flagler Drive Suite 400 West Palm Beach, Florida 33401 [email protected] [email protected] s/ Brad Edwards Brad Edwards, Esquire Attorney for Petitioner Florida Bar No. 542075 EFTA00177209 Case 9:08-cv-80, ..,6-KAM Document 30 %A w EMIL FLSD Docker 10/16/2.u8 Page 1 of 2 • (ArtiCctrei ?KZ • AND ASSOCIATES October 9, 2008 Dexter Lee, AUSA United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 Re: Jane Doe 4 and Jane Doe #2'. United States of America Case No.: 08-80736-CIV-MARRAJJOHNSON Dear Mr. Lee: I am writing to call to your attention two potentially false statements that the Government made, albeit inadvertently, in a sworn declaration submitted to the Court in connection with the above-captioned case. I request that your office file a corrected declaration and accompanying explanation. The first statement is found at page 3 to 4 of the July 916, 2008 declaration of Marie Villafafla. There a provision in a plea agreement with Mr. Jeffrey Epstein is recounted. As we understand the Government's current position in this case, it is that this provision is not in fact part of the plea agreement in this case. If our understanding is correct, then Ms. Villafaila has filed a false affidavit with the court, albeit inadvertently. We respectfully request that she file a new affidavit that corrects this false information, along with all other information relevant to understanding how the false information came to be provided to the court — and to the victims in this case. This correction should, in my view, include more details about how Epstein and his attorneys approved a submission of false information to the victims as you stated on Page 5, n.2 in your October 8, 2008 filing "Respondent's Opposition to Victims' Motion to Unseal Non- Prosecution Agreement" — presumably knowing that litigation surrounding the victims' rights issues was on-going and that such false information might be ultimately presented to the court. Such information is highly relevant to what remedy the victims might ultimately choose to seek for violations of their rights in this case. The second statement may or may not be false, but may need some clarification. At page 4 of Ms. Villafafta declaration, she states that "[i]n October 2007, shortly after the agreement was signed, four victims [including C.W.] were contacted and these provisions were discussed" (emphasis added). Similarly at page 5, the declaration states: "After C.W. had been notified of the terms ofthe agreement ....." (emphasis added). I write to inquire whether, in view of the fact that the provision noted above is not in fact (according to the Government's current view) part of the plea agreement, whether this was the provision that the government (inaccurately) discussed with the victims. Put another way, I am wondering whether the Government will now stipulate that it, at most, discussed with the victims a provision in the plea agreement that never was actually part of the plea agreement. 2028 HARRISON STREET,SUITE 202, HOLLYWOOD, FLORIDA 33020 OFFICE: 954-414-8033/305-935-2011 FAX, 954 - 924-1830/305-935-4227 BEOBRADEDWARDSLAW.COM EFTA00177210 Case 9:08-cv-80. ...6-KAM Document 36 _ EntereL FLSD Docket 10/16/2....,8 Page 2 of 2 Dexter Lee, AUSA United States Attorney's Office October 9, 2008 Page Two I continue to be interested in working out a joint stipulation of proposed facts in this case with the Government. If you would like to proceed in that direction, please give me a call. If, however, the Government is not willing to work out a joint stipulation of facts, then I need to have the record be as clear as possible, and at a minimum would request that the Government correct the inaccurate information it has provided to the court and clarify precisely how such inaccurate information came to be made a part of the record and the extent to which Mr. Epstein, through his attorneys, was culpable. Sincerely, BE/sg Brad Edwards 2028 HARRISON STREET.SUITE 202, HOLLYWOOD, FLORIDA 33020 OFFICE, 964-414-8033/305-935-2011 FAX: 954 - 924-1530/305-935-4227 BROBRADEDWARDSLAW.00M EFTA00177211 Case 9:08-cv-86...0-KAM Document 36 r A w EShei• c ap FLSD Docket 10/16/2„.../8 Page 1 of 2 )?rer / r r/petir AND ASSOCIATES October 15, 2008 Dexter Lee, AUSA United States Attorney's Office 99 N.E. 4th Street Miami, Florida 33132 Re: Jane Doe # and Jane Doe #21 United States of America Case No.: 08-80736-CIV-MARRAIJOHNSON Dear Mr. Lee: I am writing to inquire about whether Mr. Epstein has violated his Non-Prosecution Agreement with the Government. As you know, the Government has repeatedly described the Non-Prosecution Agreement as guaranteeing to the victims of Epstein's sexual abuse at least $150,000 in civil damages. The Government has made these representations in reliance on a current provision in the U.S. Code — 18 U.S.C. § 2255(a) — which provides for an automatic amount of damages of at least $150,000. At the time that the Non-Prosecution Agreement was drafted and signed, that was the law that was in effect. In Epstein's latest filing in federal court, however, he takes the position that the pre-2006 Amendments version of the law applies. See Defendant Epstein's Motion to Dismiss, for More Definite Statement and To Strike Directed to Plaintiff Jane Doe's Complaint at 9, Jane Doe I Jeffrey Epstein, No. 08-CIV-80893-Man•a/Johnson (discussing § 2255 and stating that the "applicable version of the statute" is "pre-2006 Amendments"). The 2006 Amendments altered § 2255(a), by increasing the presumed minimum damages from $50,000 to $150,000. See Pub. L. 109-248, Title VII, § 707(b), (c), July 27, 2006, 120 Stat. 650. In light of Epstein's latest filing, I write to ask several questions: (1) Would you stipulate that you told me several times that Epstein had agreed to pay at least $150,000 to the identified victims of his abuse? (2) Did Epstein in fact agree to pay damages to the identified victims of his abuse at least $150,000? (3) Did the Government tell victims, either directly or through counsel, that Epstein had agreed to pay his victims at least $150,000? 2028 HARRISON STREET,SUITE 202, HOLLYWOOD. FLORIDA 35020 OFFICE: 954-414-8033/305-955-2011 FAX: 954-924-1530/305-935-4227 BEOBRADEDWARDSLAW.COM EFTA00177212 Case 9:08-cv-K. .6-KAM Document 3b .. EntereL Jri FLSD Docket 10/16/4..,/8 Page 2 of 2 Dexter Lee, AUSA United States Attorney's Office October 15, 2008 Page Two (4) Is Epstein in compliance with his Non-Prosecution Agreement with the Government when he is now taking the legal position, through his attorneys, that he only has to pay the victims $50,000 damages under § 2255? Thank you for any clarification you can provide on these questions. Sincerely, BE/sg Brad Edwards cc: Ann Marie C. Villafafia, AUSA United States Attorney's Office 500 South Australian Avenue West Palm Beach, Florida 33401 2028 HARRISON 8TREXT,SUITE 202, HOLLYWOOD, FLORIDA 33020 OFFICE: 954-414-8033/305-935-2011 FAX: 954 - 924 - 1530/305-935-4227 DROBRADEDWARDSLAW.COM EFTA00177213 6Z EFTA00177214 Case 9:08-cv- 3-KAM Document 29 Entered on FLSD Docket 10/ 08 Page 1 of 7 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 08-80736-Civ-Marra/Johnson JANE DOES #1 and #2 Petitioners, 1. UNITED STATES OF AMERICA, Respondent. RESPONDENT'S OPPOSITION TO VICTIMS' MOTION TO UNSEAL NON-PROSECUTION AGREEMENT Respondent, by and through its undersigned counsel, files its Opposition to Victims' Motion to Unseal Non-Prosecution Agreement, and states: I. THE MOTION TO UNSEAL SHOULD BE DENIED BECAUSE THE NON-PROSECUTION AGREEMENT HAS NEVER BEEN FILED UNDER SEAL IN THIS COURT. Petitioners have filed their motion to unseal the non-prosecution agreement, claiming that no good cause exists for sealing it. As an initial matter, the motion should be denied because the non-prosecution agreement entered into between the United States Attorney's Office and Jeffrey Epstein was never filed in the instant case by the United States, either under seal or otherwise. On August 14, 2008, this Court held a telephonic hearing to discuss petitioners' request for a copy of the non-prosecution agreement. The United States advised the Court that the Agreement had a confidentiality provision, EFTA00177215 Case 9:08-cv-I ;-KAM Document 29 Entered on FLSD Docket 10/1 38 Page 2 of 7 which the United States was obligated to honor. The United States requested that, if the Agreement was to be produced to petitioners, it should be done pursuant to a protective order, to ensure that further dissemination of the Agreement would not occur. At that time, petitioners had no objection to such a procedure. On August 21, 2008, this Court entered its Order to Compel Production and Protective Order (DE 26). Subpart (b) of the Order provides that, "Petitioners and their attorneys shall not disclose the Agreement or its terms to any third party absent further court order, following notice to and an opportunity for Epstein's counsel to be heard." (DE 26 at 1.) Presumably, petitioners' motion to unseal is an effort to modify the terms of the Protective Order, to enable them to disclose the Agreement to third parties. Since the Agreement has not been filed under seal with this Court, the legal authority cited by petitioners regarding sealing of documents, United States I. Ochoa- Vasoue, 428 F.3d 1015 (11'h Cir. 2005), is inapposite. The parties who negotiated the Agreement, the United States Attorney's Office and Jeffrey Epstein, determined that 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. 'It is unclear whether the Petitioners themselves (as opposed to their attorneys) have actually reviewed the Non-Prosecution Agreement. The Court's Order to Compel Production required petitioners' counsel to review and agree to the Protective Order and to do the same with 2 EFTA00177216 Case 9:08-cv-f -KAM Document 29 Entered on FLSD Docket 10/( )8 Page 3 of 7 In order to have standing, petitioners must show: (1) an injury in fact, meaning an injury that is concrete and particularized, and actual or imminent; (2) a causal connection between the injury and the causal conduct; and (3) a likelihood that the injury will be redressed by a favorable decision. Granite State Outdoor Advertising, Inc. I. City of Clearwater, Fla., 351 F.3d 1112, 1116 (11ffi Cir. 2003). Petitioners already have obtained access to the agreement, so they cannot claim a denial of access as an injury in fact. Their motion to unseal refers to their stated desire to confer with other victims of Epstein and their attorneys "to determine whether they were likewise provided with inaccurate information about the nature of the plea agreement." (DE 28 at 5.) This asserted reason for needing to unseal the Agreement is baseless given that the Protective Order, at the Court's direction, specifically provides for a very simple procedure to allow other victims and their lawyers to see the Agreement. (See DE 26 at 1-2, subpart (d).) All that is required is for any victims and/or their attorneys to review and agree to the terms of the Protective Order, and to provide the signed acknowledgment of that agreement to the United States. Petitioners' claim that they wish to discuss with others the "possible legal responses" to the Government, including the National Alliance of Victims' Rights Attorneys, also provides no basis for vacatur of the Protective Order. Petitioners contend that the "sealing order would apparently block these forms of consultation . . ." (DE 28 at their clients. Copies of those signed acknowledgements to abide by the Protective Order were then to be provided "promptly" to the United States. To date, only Attorney Brad Edwards has provided a signed acknowledgement. 3 EFTA00177217 Case 9:08-cv-f ;-KAM Document 29 Entered on FLSD Docket 10B 38 Page 4 of 7 5.) First, there is no sealing order. Second, the Protective Order does not prevent petitioners from consulting with anyone; it only prevents them from disclosing the Agreement. Petitioners fail to mention why it is necessary for the National Alliance of Victims' Rights Attorneys to have the Agreement in hand, in order to meaningfully consult with them. Petitioners also assert that they would like to be able to reference the Agreement "in a parallel civil suit that is pending before this Court." (DE 28 at 5.) Given that the suit names Jeffrey Epstein as a defendant and is pending before the same district judge, it seems that litigation regarding the production and use of the Agreement should occur in that case, where the true party in interest, Jeffrey Epstein, is present and represented by counsel, rather than in a suit that was originally filed in July as an "Emergency Petition" under the various victims' rights laws. II. TILE GOVERNMENT ACCURATELY DESCRIBED THE PROVISIONS OF THE AGREEMENT, AT THE TIME THE RESPONSES WERE FILED WITH THE COURT. Petitioners castigate the Government for inaccurately describing the non- prosecution agreement. (DE 28 at 2-5.) They contend a particular provision cited by the Government does not appear in the copy of the Agreement produced to them. During the telephonic hearing on August 14, 2008, Government counsel advised the Court and petitioners' counsel that there was an ongoing dispute between the Government and Epstein's attorneys over what constituted the Agreement. Government counsel advised that, in its opinion, the Agreement had three parts. The first part was 4 EFTA00177218 Case 9:08-cv-1 ;-KAM Document 29 Entered on FLSD Docket 10/( 38 Page 5 of 7 executed in September 2007, the second part, an addendum, was executed in October 2007, and the third part was a December 2007 letter from the United States Attorney to Epstein's attorneys, suggesting a further modification of the Agreement. The Government advised the Court that it believed that all three parts comprised the Agreement, while it appeared that Epstein's attorneys were contending the Agreement was comprised only of parts one and two. At the commencement of the instant litigation, in July 2008, the Government believed the Agreement was comprised of all three parts mentioned above. This belief was expressed in victim notification letters, including one sent to Jane Doe #1,2 the Government's July 9, 2008 response to the Emergency Petition for Enforcement of Victims Rights Act, as well as the Declaration of A. Marie Villafafia, Assistant U.S. Attorney, which accompanied the Government's response. This belief continued until August 2008, when the Government advised Epstein's attorneys that the victims had 2The victim notification letter was provided to Epstein's attorneys prior to being sent, who approved the language of which the petitioners now complain. Thus, petitioners' repeated assertions that the Government made these errors intentionally and/or negligently are meritless. (See, e.a., DE 28 at 4-5 ("The Government apparently feels free to disclose to the victims one provision in the non-prosecution agreement that it believes it is to its advantage to disclose, but not others. The Government should not be permitted to pick and choose, particularly where it has inaccurately described the provision that it has chosen to disclose.") The Government seeks no "advantage" in this suit brought by the two victims. Furthermore, the petitioners' original emergency petition focused on their concern about the amount of jail time that Epstein would serve. The provision that they complain of now has no relation to jail time. Furthermore, petitioners aver that the October 2007 disclosure to Jane Doe #1 contained inaccurate information, but that disclosure was made before the December 2007 letter and, therefore, did not include anything related to the U.S. Attorney's now-defunct proposed amendment to the Agreement. 5 EFTA00177219 Case 9:08-cv-: 3-KAM Document 29 Entered on FLSD Docket 10/f 98 Page 6 of 7 demanded disclosure of the Agreement to them, and discussions ensued about what constituted the Agreement. Epstein's attorneys then told the Government that Epstein believed the Agreement consisted only of the first and second parts. 'These were the parts disclosed to petitioners pursuant to the Protective Order in compliance with the Court's order to compel production. The fact that an erroneous disclosure was inadvertently made to one petitioner after Epstein had already entered his guilty plea, was sentenced, and surrendered to begin serving his sentence does not create an injury where one did not exist before. CONCLUSION For the foregoing reasons, the United States respectfully requests that the Court deny Petitioners' Motion to Unseal the Non-Prosecution Agreement. Respectfully submitted, R. ALEXANDER ACOSTA UNITED STATES ATTORNEY By: s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney Fla. Bar No. 0936693 99 N.E. 4th Street Miami, Florida 33132 (305) 961-9320 Fax: (305) 530-7139 E-mail: [email protected] Attorney for Respondent 6 EFTA00177220 Case 9:08-cv-1 i-KAM Document 29 Entered on FLSD Docket 10P 38 Page 7 of 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 8, 2008, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. s/ Dexter A. Lee DEXTER A. LEE Assistant U.S. Attorney SERVICE LIST Jane Does 1 and 2'. United States Case No. 08-80736-CIV-MARRA/JOHNSON United States District Court, Southern District of Florida Brad Edwards, Esq., The Law Offices of Brad Edwards & Associates, LLC 2028 Harrison Street, Suite 202 Hollywood, Florida 33020 (954) 414-8033 Fax: (954) 924-1530 7 EFTA00177221 EFTA00177222 Case 9:08-cv-f -KAM Document 28 Entered on FLSD Docket 09/; )8 Page 1 of 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-80736-CIV-MARRAIJOHNSON JANE DOE #1 AND JANE DOE #2, Petitioners, I UNITED STATES OF AMERICA, Respondent. VICTIM'S MOTION TO UNSEAL NON-PROSECUTION AGREEMENT COMES NOW the Petitioners, Jane Doe #1 and Jane Doe #2, by and through their undersigned attorneys, pursuant to the Crime Victim's Rights Act, 18 U.S.C. Section 3771 ("CVRA"), and file this motion to unseal the non-prosecution agreement that has been provided to their attorneys under seal in this case. The agreement should be unsealed because no good cause exists for sealing it. Moreover, the Government has inaccurately described the agreement in its publicly-filed pleadings, creating a false impression that the agreement protects the victims. Finally, the agreement should be unsealed to facilitate consultation by victims' counsel with others involved who have information related to the case. BACKGROUND As the court is aware, this action was brought by two crime victims (hereinafter referred to as "the victims") seeking protection of their rights under the Crime Victim's Rights Act, 18 U.S.C. § 3771. At the center of this action is an agreement between the United States and Jeffrey Epstein that (as described in earlier court pleadings publicly filed by the Government) involved EFTA00177223 Case 9:08-cv 6-KAM Document 28 Entered on FLSD Docket 09, )08 Page 2 of 8 Epstein's entry of guilty pleas to various state charges and an 18-month jail sentence, in exchange for which the U.S. Government apparently agreed to defer all federal prosecution — including any federal prosecution for the federal crimes committed against the victims. At a hearing held on August 14, 2008, the court ordered the Government to produce to counsel for the victims the non-prosecution agreement. That production, however, was to be done under protective order in the first instance. The agreement has now been produced. At the earlier hearing, the court recognized that the victims' counsel might at a later date seek to have the sealing lifted. That date has now arrived. ARGUMENT As the court envisioned might well happen, counsel for the victims now believe that sealing of the agreement is no longer appropriate. The non-prosecution agreement should now be unsealed for three reasons. 1. No Good Cause Has Been Shown for Sealing the Agreement. Having now reviewed the agreement, counsel for the victims can find no legitimate basis for the document to be scaled. Because it stands at the center of this litigation (as well as several related civil suits), the burden should fall on those who would keep the document sealed to show cause for doing so. No good cause has yet been shown. CI United Stalest Ochoa-Vasque, 428 F.3d 1015 (11th Cir. 2005) (to